BETWEEN : YALLINGUP RESIDENTS ASSOCIATION (INC)

Administrative law ­ Return of order nisi for writ of certiorari ­ Association of ratepayers ­ Refusal to allow plaintiff to be joined to proceedings in the Town Planning Appeal Tribunal to review development application ­ Test to be applied ­ Effect of delay in making application ­ Relevance of obligation to accord natural justice

Originating summons for declaratory relief ­ Declaration that zoning of specified lots under town planning scheme invalid ­ Failure of local authority to consult persons likely to be affected by town planning scheme ­ Failure to bring application in a timely fashion

Associations Incorporation Act 1987 (WA)

Conservation and Land Management Act 1984 (WA)

Environmental Planning and Assessment Act 1979 (NSW)

Environmental Protection Act 1986 (WA)

Interpretation Act 1984 (WA)

Interpretation Act 1987 (NSW)

Royal Commissions Act 1968 (WA)

State Administrative Tribunal Act 2004 (WA)

Town Planning and Development Act 1928 (WA)

Town Planning Appeal Tribunal Rules 2003 (WA)

Town Planning Regulations 1967 (WA)

Second Respondent : Mr C G Colvin SC & Mr M J Hardy

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Andrews v Howell [1941] HCA 20; (1941) 65 CLR 255

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

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

Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd & Ors [1977] 2 NSWLR 955

Attorney-General v J N Perry Constructions (1961) 6 LGRA 385

Bonton Pty Ltd v City of South Perth (1981) 4 APA 8

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

Cabal & Ors v Attorney-General of the Commonwealth [2001] FCA 583; (2001) 113 FCR 154

Darling Casino Ltd v Minister for Planning [1995] NSWLEC 62

Dunkley v Evans [1981] WLR 1522

Ex parte Helena Valley/Boya Association (Inc) & Ors v State Planning Commission & Beggs (1990) 2 WAR 422

Gudgeon v Black, Ex parte Gudgeon (1994) 14 WAR 158

Hamilton v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 657; (1993) 48 FCR 20

Harding & Reading v Shire of Chittering & Ors [2003] WATPAT 147

Harrington v Lowe (1996) 190 CLR 311

Homestyle Pty Ltd v City of Belmont & Anor [1999] WASCA 59

Ibbotson v Chaney, unreported; SCt of WA; Library No 980278; 22 May 1998

JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432

John Cooke & Co Pty Ltd & Anor v The Commonwealth & Ors; Field & Ors v The Central Wool Committee & Ors [1922] HCA 60; (1922) 31 CLR 394

Kintyre Holdings Pty Ltd v Shire of Busselton [2003] WATPAT 67

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Mount Barker Properties Ltd v District Council of Mount Barker [2001] SASC 249; (2001) 80 SASR 449

Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241; (1999) 22 WAR 1

Olsen v City of Camberwell [1926] VicLawRp 9; [1926] VLR 58

Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Peters v Attorney General for NSW (1988) 16 NSWLR 24

Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407

R v The Commonwealth Court of Conciliation & Arbitration; Ex parte Whybrow & Co & Ors [1910] HCA 33; (1910) 11 CLR 1

Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen [1999] WASCA 47; (1999) 21 WAR 158

Re Smith; Ex parte Rundell (1991) 5 WAR 295

Rollo & Anor v Minister of Town and Country Planning [1948] 1 All ER 13

S v Legal Practice Board of Western Australia [2004] WASCA 28; (2004) 29 WAR 173

Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242

Selby v Pennings (1998) 19 WAR 520

Shire of Augusta-Margaret River v Gray & Anor [2005] WASCA 227

Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 140

Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165

Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166

Silverland Pty Ltd v Shire of Busselton [2004] WATPAT 139

Tasker v Fullwood [1978] 1 NSWLR 20

The State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459

TVW Enterprises Ltd v Duffy & Ors (No 2) (1985) 7 FCR 172

Vanmeld Pty Ltd v Fairfield City Council & Anor [1999] NSWCA 6; (1999) 46 NSWLR 78

Yu­Ting Liu v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 1058

1 JOHNSON J: On 11 February 2005 the applicant, the Yallingup Residents Association (Inc) ("the Association") commenced, by originating motion, an application for an order nisi for a writ of certiorari. The writ of certiorari was to be directed to the Town Planning Appeals Tribunal ("the Tribunal") to quash the Tribunal's decision made on 23 September 2004 to uphold Appeal No 47 of 2004 subject to conditions. The grounds for the application were as follows:

"(1) The respondent failed to take account of a relevant consideration being the invalidity of the zoning of the subject land; and

(2) The respondent failed to take account of relevant considerations being the evidence the applicant sought to tender in the appeal; and

(3) The respondents failed to take account of relevant considerations being the submissions the applicant sought to make in the appeal."

2 A further application was filed on the same day although its terms were later amended. That application was brought by originating summons against the Shire of Busselton ("the Shire") as first defendant and Silverland Enterprises Pty Ltd ("Silverland") as second defendant and sought a declaratory judgment in the following terms:

"1. the purported zoning of lot 800 and lot 801 on Deposited Plan 36341 and Sussex Location 269 (the 'Land') as 'Tourist' for the purposes of the Town Planning and Development Act 1928 (the 'Act') is invalid; and

2. the correct zoning of the Land, for the purposes of the Act, is 'Group Dwelling'."

3 At the hearing, counsel for the Association advised the Court that it was no longer seeking the declaration in par 2 of the originating summons.

4 The application for the order nisi was made ex parte and heard by Master Sanderson on 23 February 2005. The order nisi was granted, returnable before the Full Court. However, at a later time, the Association agreed to the matter being heard by a single Judge. On 1 March 2005, the State Administrative Tribunal ("SAT") wrote to the Court noting that the Tribunal as a body no longer existed and that SAT should be the proper respondent. The letter further conveyed to the Court that it submits to the jurisdiction of the Supreme Court and agrees to abide by any order that may be made, except as to costs.

5 On a further hearing on 2 March 2005, the Shire and Silverland appeared by counsel. On that occasion orders were made to join Silverland as a party to the application for a writ of certiorari and to change the name of the respondent from the Tribunal to SAT.

6 At a status conference before Registrar Boyle on 23 March 2005, orders were made to consolidate the two actions and to join the Shire as a party to the application for a writ of certiorari and to designate the Shire as the third respondent. The result is that SAT, Silverland and the Shire, are respectively the first, second and third respondents to both applications which have been consolidated.

7 For ease of reference, I shall refer to the relevant town planning review body, both then and now, as "the Tribunal". Further, in view of the significant legislative changes arising from the creation of SAT, any reference to the Town Planning and Development Act 1928 (WA), ("TPD Act"), will be a reference to the TPD Act at the time of Silverland's Appeal No 47 of 2004.

8 At the hearing of the application for declaratory judgment on 20 May 2005 an application to amend the application was made. The application for declaratory relief, as it was originally filed by the Association, identified only the zoning of Lots 800 and 801 as attracting a declaration of invalidity. At the hearing the Association made an application to amend the originating motion to include Lots 2, 3, 5 and 24. According to the counsel for the Association, notice was given to Silverland's solicitors on 23 March 2005 of the intention to add additional lots, although, as I understand it, the lot numbers were not specified. The first clear indication of the scope of the amendment occurred when the respondent parties were provided on 9 June 2005 with a copy of the papers for the Judge which contained the amendment.

9 In support of the application to amend, it is said that, in the Tribunal, the case was expressed to relate to "the owners of land to be rezoned or persons likely to be affected". On that basis, the parties have since that time been aware that the interests of the Association extended beyond Lots 800 and 801. That argument would have greater validity if the subject matter of the application in this Court must necessarily be identical to the subject matter in the Tribunal. However, applications of this type may be narrowed to address only aspects of the action with respect to which declaratory relief is sought. In my view, it is not obviously the case that the respondent parties must have been aware that the application for declaratory relief related to all lots in the Yallingup area affected by Town Planning Scheme No 20 ("TPS 20"), rather than simply Lots 800 and 801, as expressly stated in the originating motion. Further, whilst it may have been apparent that the Association's interest extends beyond Lots 800 and 801, the matter before the Tribunal related to a development application with respect only to those lots.

10 The Court was also referred by counsel for the Association to the following correspondence from adjoining landowners:

(a) Letter from the owners of Lot 32 (37 Elsegood Ave):

The owners identified themselves as "adjoining landowners to blocks Lots 1, 2, 3, 4 and 22 Elsegood Avenue". They objected to the fact that they were not consulted regarding the rezoning. They state that they "are also aware of the disgraceful situation regarding the fact that the landowners themselves were not consulted regarding the rezoning of their own properties".

(b) Letter from the owner of Lot 68 (25 Elsegood Ave):

The owner identified himself as an adjoining landowner. He expressed his amazement that the change in zoning had occurred "without reference or consultation with ratepayers in general and adjoining landowners in particular".

The owners identified themselves as landowners adjacent to Lot 24 Elsegood Avenue. They express their concern that they were not consulted during the rezoning process and were not informed of the rezoning.

11 It was submitted that this material constituted the state of the evidence, as at the time of the Tribunal application, from residents and owners of land allegedly affected by the change of zoning caused by TPS 20. The other material related to submissions on the impact of the change in zoning. According to counsel for the Association, there had never been any direct evidence from the owners of the rezoned land or the owners of the lots that the Association now proposes to incorporate into its application. It is unclear to me how this submission advances the Association's argument on an application to amend the originating motion. Counsel referred the Court to s 51(1)(c) of the TPD Act which states that the Tribunal is not bound by the rules of evidence and submitted that this evidence would be sufficient for the Tribunal's purposes. In my view, that submission misses the point. It may well be the case that the Tribunal was prepared to rely on this evidence in considering the review before it and that, in reviewing a decision of the Tribunal, this Court must also take into account that evidence of this type is admissible in the Tribunal. However, an application for declaratory judgment is not a part of the processes in the Tribunal. Nor does s 51(1)(c) of the TPD Act apply to an action in this Court, even where the action is derived from a proceeding in the Tribunal.

12 Senior counsel for Silverland opposed the application to amend on the basis that it was moved only at the commencement of the hearing when it could have been moved at an earlier time. The chronology of interlocutory applications and appearances set out at the commencement of this judgment, which is not exhaustive, makes it clear that there were a number of opportunities to deal with this issue. It was also submitted that no explanation has been given for leaving the application until the last minute. I accept that to be the case.

13 Further, senior counsel for Silverland emphasised that the action before the Court is an application for declaratory relief which requires the Court to make a decision as to the appropriate zoning of the land referred to in the declaration. Although the application was varied at trial to require only a declaration of invalidity of the zoning of "Tourist", senior counsel's proposition remains valid. If the Association's application for declaratory relief is successful, there will be consequences for the landowners who have not been joined as parties to the proceeding and hence have not had the opportunity to be heard on the issue. On that basis, it is said that the absence of the owners of the relevant lots is fatal to the application.

14 It is well established that a person ought to be joined as a party to an action if any order which might be made in the proceedings would affect that person's rights. The effect of the rule is to prevent an adjudication of the action being made without giving that person an opportunity of being heard: see O 18 r 6; Homestyle Pty Ltd v City of Belmont & Anor [1999] WASCA 59 (at 9) per Templeman J, with whom Malcolm CJ and Owen J agreed, citing Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, (at 55 - 56). Of course, as senior counsel noted, that proposition applies to the exercise of the Court's discretion whether to grant the application for declaratory relief, irrespective of whether the amendment is allowed. In this context, senior counsel noted that, on an application for a declaration of invalidity based on a failure to consult both the owners of land affected by zoning changes under TPS 20 and adjoining landowners, the failure to join the relevant landowners as parties deprives the respondents of the benefits of the discovery of documents going directly to the issue of consultation. I accept that this is a significant factor. Senior counsel acknowledged that the issue of liability for costs may affect a landowner's willingness to be involved as a party in a legal action. However, it was submitted, and I accept, that this does not detract from the accuracy of the proposition on which he relies. Indeed, it appears that no attempt has been made to overcome this impediment by providing the Court with information in an appropriate form to the effect that those persons whose interests may be affected do not wish to be heard or have properly bound themselves to the outcome of the action. No real attempt has been made to explain the lack of participation in this action of those persons who will inevitably be affected by the relief sought.

15 The Association maintains that it has sufficient standing to seek the declaratory relief so there is no need to join the owners as parties. It is said that the owners of the properties have sworn affidavits in support of the Association's applications. The first response which can be made is that the Association's standing is not relevant to the issue of whether other persons who may be affected by the outcome should be joined. The standing of the Association would only be relevant if the Association were acting on behalf of all landowners affected by the scheme. Despite the assertion that "the owners of the properties have sworn affidavits in support", a perusal of the affidavits filed in both actions indicate that, while the owners of three of the four lots sought to be included in the claim (referred to in the affidavits as the "Elsegood Avenue Land") have filed affidavits, the owners of the remaining three of the seven residential lots subject to a zoning change do not appear to have filed an affidavit. Therefore, the response of the Association is only partly accurate. However, because the residential lots are not numbered on the TPS 20 scheme map it is somewhat difficult to ascertain the lots to which the various deponents refer. The conclusion I have drawn, based on my understanding of the relevant material, is that none of the deponents who assert that they own land overlooking either the Surfside lots or the Elsegood Avenue lots are the owners of the three residential lots not specifically referred to as being owned by other deponents.

16 I also have some reservations about whether the Association does indeed have standing for an application of this type; that is, an application seeking a declaration of invalidity of the zoning applying to certain land.

17 Senior counsel for Silverland also noted that the late inclusion of the additional lots in the application deprives Silverland of the opportunity to address issues such as whether the owners of those lots and the owners of adjoining lots were aware of the scheme change, whether they were in fact consulted, and whether any complaint was made or action taken about any failure to advise or consult.

18 These are the matters of prejudice on which Silverland relied. With respect to the final point, Silverland was given an opportunity to apply to adjourn the hearing but declined to make such an application at that time whilst reserving the right to do so at a later point. Ultimately, no such application was made.

19 On the second day of the hearing, counsel for the Association provided the Court with a copy of a letter from Silverland's solicitors which confirmed their client's consent to the amendments, without the necessity of a formal application for leave. Senior counsel for Silverland had not been made aware of the letter but when it was drawn to his attention he properly withdrew the objection to the amendment.

20 However, the Shire's objection was maintained. The Shire objected on a number of grounds to leave being granted to amend the originating motion. The fact that the owners of Lots 2, 3, 5 and 24 are not parties to the action, and that those lots are not connected with Lots 800 and 801, was relied upon by the Shire in opposition to the application to amend. It was further disputed that Lots 2, 3, 5 and 24 were in issue or relevant to the proceedings before the Tribunal. As I have noted, it is the case that the matter before the Tribunal was a development application with respect to Lots 800 and 801 only. Although the impact on the amenity of the adjoining land may be a relevant factor in considering a development application, as I understand the thrust of the Shire's proposition, the fact remains that there was no necessity to address the ownership of Lots 2, 3, 5 and 24, or any consultation by the Shire with the owners of those lots, when responding to the application in the Tribunal.

21 The particulars relied on by the applicant for the purposes of the present application are set out in a letter from the Association's solicitors to the solicitors for the Shire dated 26 April 2005. The letter states:

"In relation to your request for particulars relied upon in relation to the assertion that the zoning of the Land as Tourist is invalid, in the originating process in both actions; I refer you to the affidavits of Graham John Greig sworn 2 February 2005, filed in each action.

The relevant particulars are contained at pages 27 to 32 of both affidavits (paragraphs 18 to 47) and summarised in a schedule at page 49 of both affidavits.

The relevant pages of the affidavits annex documents that were provided to Counsel for your client on 8 July 2004, prior to your firm receiving instructions."

The papers referred to in this letter as satisfying the request for particulars with respect to the two actions before me, were the papers relied upon by the Association in the Tribunal and were filed in the Tribunal on 22 July 2004. The response to the request for particulars would not have necessitated any investigations about the additional lots.

22 As counsel for the Shire pointed out, the originating summons for declaratory relief was filed on 11 February 2005 and the application to amend was not made until the commencement of trial on 8 June 2005. It is self-evident that there was ample time to make the application to amend in circumstances where no prejudice would ensue. However, the first notice given to the Shire was when a copy of the originating summons, including the proposed amendment, was included in the papers for the Judge served on the Shire's solicitors on 8 June 2005.

23 The Shire also relied on the prejudice it would suffer if the amendment were allowed. The consequence which is said to prejudice the Shire is that it has not filed any affidavit material relating to Lots 2, 3, 5 and 24. The prejudice is compounded by the Association's reliance on this omission in support of its proposition that the Shire does not contest that the owners of these lots were not consulted. Yet, despite being given the opportunity to seek an amendment, an application of that type was not made. I do not consider the failure by the Shire to seek an amendment to be a concession that no prejudice arose, merely that such prejudice did not sufficiently outweigh the benefit of the matter being heard on the dates for which it was listed. In particular, I accept the proposition that the absence of information about the lots sought to be added by amendment cannot be taken as a basis for concluding that no relevant information exists nor can it operate as support for the position taken by the Association. The matter was left on the basis that, if it was considered that the prejudice arising had become insurmountable, the issue could be revisited.

24 The Association refutes the proposition that the Shire has suffered prejudice by the amendment, principally because of the number of occasions on which the inclusion of the residential lots was brought to the Shire's attention. Emphasis is placed on the provision of a copy of the amended originating summons on 23 March 2005 and on the fact that on 1 April 2005 the Shire's solicitors were informed that the Association's instructions remain to amend the claim as set out in the amended originating summons. In the same letter, the Shire was also advised that additional affidavits were currently being drafted which would include the factual basis for the amendment. The further affidavits which deposed to the lack of notice of the proposed zoning change of all the townsite lots were served on the Shire in April 2005. On 15 April 2005 the Shire's solicitors wrote to the Association's solicitors and referred to the letter of 1 April 2005 without objection to the proposed amendment and requested additional amendments to be made to the originating summons to include the particulars relied upon.

25 I accept that the Shire was put on notice of the Association's intention to apply to amend the originating summons. However, that is not a complete answer to the objection made by the Shire. Even where a party is put on notice, it is not until the application is made and granted that the obligation to deal with the amendment arises. It is the timing of the application which is the key factor. The fact that the application was not made until the morning of the hearing is also relevant to the proposition put on behalf of the Association that leave is not required as the amendment could be amended once without leave in any event. Order 21 r 3(1) provides that a party may, without leave of the Court, amend any pleading once at any time before pleadings are deemed to be closed. Order 21 r 4(1) allows any party, within 14 days after service on a party of a pleading amended under r 3 to apply to the Court to disallow the amendment. It is clear that the right to amend without leave does not apply when the amendment is made on the morning of the hearing.

26 In The State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 the High Court addressed the issue of the approach to be taken to applications to amend pleadings in the context of case management principles. In that case, the defendants sought to amend the defence by making application at a time which was likely to result in the vacation of the trial date. The application was made at that late stage despite a number of interlocutory hearings and several prior amendments to the defence. Dawson, Gaudron and McHugh JJ concluded (at 155) that, save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Their Honours added (at 155):

"Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."

27 In this case, the principles of case management were not averted to but, as I have indicated, allowing the amendment carried with it a risk that the commencement of the trial, or the trial itself, would be delayed. On that basis, the statement of principle referred to above made by the High Court in The State of Queensland & Anor v JL Holdings Pty Ltd (see also Kirby J (at 167 - 168)) is apposite. The amendment sought raises no new legal issue for the defendants to meet and requires only some additional evidence with respect to whether there was consultation with the owners of the additional lots. In my view, the amendment has the benefit of bringing within the declaration sought a majority of the lots in the Yallingup townsite affected by a change in zoning under TPS 20.

28 Despite the lateness of the application, I consider that the amendment should be allowed. The prejudice to the Shire arising from the absence of evidence with respect to the additional lots could be overcome by the grant of an adjournment and an award of costs. As things transpired, neither defending parties sought the adjournment offered to them. On that basis I would grant leave to amend without further order although I will allow the parties to make submissions as to costs of the amendment application.

29 The applications broadly relate to an area of land in the Yallingup townsite affected by a change of zoning to "Tourist" brought into effect on the promulgation of TPS 20. TPS 20 dealt with the Shire as a whole: Silverland Pty Ltd v Shire of Busselton [2004] WATPAT 139 (at 24 [44]). It was approved by the relevant Minister on 11 August 1999 and published in the Government Gazette of 7 September 1999. With respect to the Yallingup townsite, TPS 20 related to a small, although significant, area. There was no change in zoning with respect to the bulk of the lots in the townsite.

30 The lots in the townsite affected by the scheme ("the townsite lots") can be divided into two groups:

(a) A wedge shaped area of land to the north of the intersection between Valley Road and Dawson Drive and adjoining the Yallingup Beach foreshore.

The area originally comprised one lot (Lot 105) but was subsequently subdivided into two lots (Lots 800 and 801). The combined area of Lots 800 and 801 is 6880 square metres of which, prior to Silverland's application to redevelop the area, a portion was occupied by a restaurant and a retail outlet with associated residential quarters. The area is commonly referred to as "Surfside" arising from the name of the commercial premises which previously operated there. I will hereafter refer to the area as (the "Surfside lots"). Under the previous Shire of Busselton Town Planning Scheme, No 5, ("TPS 5"), the two original lots, moving from east to west, were respectively zoned "shopping" and "short-stay residential" and were each marked with an "A".

(b) Another wedge shaped area to the south of the intersection of Dawson Drive and Elsegood Avenue.

The area comprises seven lots and is bisected by a pathway. Five of the lots are to the north of the pathway and two lots abut the pathway from the south. The lots are delineated on Town Planning Scheme Map No 20 of 20 but are not numbered. Under TPS 5 the seven lots were zoned "single residential". For convenience I will refer to these lots as ("the residential lots").

31 The Association was incorporated under the Associations Incorporation Act 1987 (WA) in 1991 for the purpose of providing members of the Yallingup community with representation in relation to a proposed development on the Surfside lots. The Association represents the interests of its 129 financial members who are ratepayers and residents of the Yallingup townsite, including some members who have properties near and adjacent to the relevant land. The membership of the Association represents approximately 65 per cent of the owners of land in Town Planning Scheme Map No 20 of 20.

32 In 2001 Kintyre Holdings Pty Ltd ("Kintyre") applied to the Shire for development approval to build 14 stand-alone units on the Surfside lots ("the Kintyre application"). The application was refused by the Shire in December 2001 and a review by the Tribunal found against the applicant: Kintyre Holdings Pty Ltd v Shire of Busselton [2003] WATPAT 67. The basis upon which the appeal was dismissed was that the method of construction of the development, rather than the fact or type of development, did not enable the Tribunal to determine that the proposed development would not cause erosion of the primary dune: (at [40]). No other aspect of the proposed development would have justified refusing development approval: (at [24], [32], [34]). The concern for the stability of the primary dune arose from the fact that, on the evidence, the development proposal involved major destruction of dense remnant vegetation that had a stabilising effect on the dune. It was considered that the evidence adduced on behalf of the appellant placed insufficient emphasis on the ameliorating effects of proposed alternatives methods of development. Further, as is evident from the following comment, the Tribunal clearly considered that this issue should be capable of resolution between the parties (at [41]):

"The Tribunal is of the view that this site is clearly marked for development and therefore the matter should not hopefully come before the Tribunal again. What is necessary is that a new proposal be put forward to consolidate the development away from the primary dune supported by a clear plan for construction and subsequent stabilisation ... This area should be developed but in a manner than can with certainty protect the foreshore dune system."

33 On 26 September 2003, Silverland lodged another application for approval to commence development on the Surfside lots ("the Silverland application"). The Silverland application was made to the Shire under TPS 20 which had rezoned the Surfside lots to "Tourist". The proposed development was for 19 tourist accommodation units, three commercial tenancies and one restaurant. Eleven of the units were stand-alone two storey buildings fronting Dawson Avenue and an internal road. The remaining units were in a two storey building along the Valley Road frontage that also included non-tourist accommodation uses. The roads were on the east and south boundaries. The remaining boundaries were adjacent to a reserve containing the primary dune at Yallingup beach which extends into the western edge of the Surfside lots. It can be seen that this proposed development included five more units than in the previous application with respect to the land, although the positioning of the units on the site differed. Under the Silverland application there would be three fewer stand-alone two storey units fronting Dawson Drive.

34 The Association, through its members, lodged objections to the proposed development consistent with the members' proprietary interests in the land in the Yallingup townsite. There is no indication of whether, or to what extent, those objections were considered because the Shire failed to make a decision on the application within the 90 days provided for in cl 15(2) of TPS 20. Under TPS 20 the failure by the Shire to decide the application within that time was deemed to be a refusal of the application. As a result, Silverland appealed to the Tribunal from the deemed refusal by the Shire of its development application.

35 The Association instructed counsel to appear at the hearing of the appeal in the Tribunal. The instructions to counsel were to make submissions and tender evidence on behalf of the Association.

36 The hearing before the Tribunal took place on 8 July 2004 and 9 July 2004. At the commencement of the hearing on 8 July 2004, counsel for the Association appeared and sought to hand up written submissions and evidence on behalf of the Association. The Tribunal, constituted by a single member, refused the application to make submissions and tender evidence on the basis that the Association did not have a sufficient interest in the subject matter of the appeal. The hearing proceeded and heard evidence from six witnesses, five called on behalf of Silverland and one called on behalf of the Shire. The witnesses called by Silverland comprised a forestry consultant in bush fire management, a planner, a botanist, a coastal scientist and an environmental management consultant. The Shire's witness was a planner. The evidence of each of Silverland's witnesses was tested under cross-examination by counsel for the Shire.

37 The Association applied to the President of the Tribunal for a review of that decision. McGowan P dismissed the application on the basis that the Association was not a party to the proceedings, or an applicant to be a party to the proceedings and therefore had no right to apply for a review. However, the Tribunal observed that it remained open to the Association to make application for joinder because the decision in the matter had not yet been delivered and there were no time limit constraints in the TPD Act, rules or regulations limiting the time within which to make such an application: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 140 (at 8).

38 On 28 July 2004 the Association applied to be joined as a party to the Silverland application. In support of the application, counsel identified the material sought to be adduced on behalf of the Association if joinder were granted. In due course I will refer to the content of that material in more detail but for the moment it is sufficient to state that the material incorporated written submissions prepared by counsel, evidence from the then President of the Association, Mr Ron Edwards, and an environmental report from Dr Darren Brearley from Onshore Environmental Consultants.

39 On 4 August 2004, the Tribunal refused the application on the basis that it was not necessary to hear the further evidence in order to deal with the matter the subject of the appeal. In reaching that conclusion the member referred to the following factors:

(a) The issues raised in the submission of Dr Brearley had already been put to the Tribunal to some extent by the witnesses called by Silverland and they had been cross-examined on that evidence.

(b) Counsel for the Association, having been refused leave to appear to make submissions and tender evidence, sat in the gallery of the hearing room and watched the remainder of the proceedings. The Association then formed the view that it was dissatisfied with the way in which the Shire approached the appeal and the course taken in examining the evidence.

40 On 17 September 2004, the President of the Tribunal dismissed the Association's application for a review of the refusal of its joinder application. The President found that the relevant test for joinder set out in Harding & Reading v Shire of Chittering & Ors [2003] WATPAT 147 had been correctly applied. The President also commented that the member was in a unique position to apply the test having had the benefit of the whole of the evidence advanced by Silverland and the testing of that evidence by the Shire, both by calling evidence and in pursuing matters in cross-examination. As to the argument based on the invalidity of TPS 20, the President concluded that the disposition of that issue would involve making a declaration, something the Tribunal did not have power to do: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165 (at [6], [7], [10]).

41 On 23 September 2004 the Tribunal handed down its decision on Silverland's application, allowing Silverland's appeal, subject to conditions: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166.

42 It is said on behalf of the Association that the Tribunal's refusal to hear the Association or to join it as a party results in two substantive injuries. Firstly, the Tribunal has approved a development on an invalidly zoned lot without hearing evidence or argument on the point. Secondly, the Tribunal has approved a development on that invalidly zoned lot without hearing evidence or argument from residents concerning an inappropriate development improperly affecting the amenity of the townsite and the coastal dune system.

43 It can be seen that the grounds of the order nisi can be reduced to two primary issues: First, the validity of the zoning of the lots the subject of the application and secondly, the refusal of the application to be joined as a party. Although the Shire has been joined as a party in both actions, its interest in the appeal is primarily confined to the Association's assertion of invalidity of the Shire's TPS 20.

44 Before dealing with the two issues to which I have referred, it is necessary to identify the information on which the Association relied in the Tribunal, any additional information filed in support of the originating motion and the originating summons and other documentation included in the papers for the Judge setting out the factual material relevant to these actions.

45 The affidavit of Graham John Greig, President of the Association, dated 2 February 2005 and filed in support of the originating motion attaches a copy of the Association's documents in support of the application for review by the President. They are:

(a) Affidavit of Ronald Edward sworn 22 July 2004 and filed in the Tribunal in support of the application for review by the President ("the Edwards affidavit").

(b) Written submission of Yallingup Residents Association prepared by counsel and part of attachment "A" to the Edwards affidavit ("counsel's submissions").

(c) "Submission to the Town Planning Appeals Tribunal re Development Proposal: Lot 105 Dawson Drive/Valley Road, Yallingup" by Mr Ron Edwards, President, Yallingup Residents Association being attachment 1 to counsel's submissions.

(d) "Submission to the Town Planning Appeals Tribunal - Lots 800 and 801 Valley Road, Yallingup - 'Surfside'" by Dr Darren Brearley being attachment 2 to counsel's submissions.

(e) Schedule 1 purporting to set out the steps required under the TPD Act and the Town Planning Regulations 1967 (WA) ("the Regulations") to implement or substantially alter a town planning scheme being attachment 3 to counsel's submissions.

(f) Two letters to the Shire of Busselton and one to Mr and Mrs R Brearley from landowners in Elsegood Ave, Yallingup being attachment 4 and including:

(i) Letter to the Shire from James and Amanda Farrell of 37 (Lot 32) Elsegood Avenue, an owner of land adjoining Lots 1, 2, 3, 4 and 22 Elsegood Avenue, complaining that they were not consulted regarding the rezoning of the adjoining lots.

(ii) Letter to the Shire from Daniel Smetana of 25 Elsegood Avenue, an owner of land adjoining Lots 2 and 3 Elsegood Avenue, complaining of not being consulted about the zoning change to the adjoining land.

(iii) Letter to Mr and Mrs Brearley from Geoff and Lynne Hewitt of 31 Elsegood Avenue, advising that they have never been notified of the rezoning of the five lots belonging to Mr and Mrs Brearley and objecting to the rezoning.

(g) Letter to the Shire from Mr Ron Edwards, President, Yallingup Residents Association dated 26 November 2003 with respect to the proposed development of the Surfside lots.

The affidavit of Graham John Greig sworn 2 February 2005 filed in support of the originating summons is in substantially the same terms.

46 A number of affidavits have also been included in the papers for the Judge. They relate to the state of knowledge of certain landowners that TPS 5 was to be repealed and replaced with TPS 20 and that the effect would be to change the zoning of certain lots in the Yallingup area to tourist. In each case, the deponent states that he or she was not advised prior to the rezoning of his or her own lot or the townsite lots that TPS 5 was to be repealed and replaced. There were no signs displayed or any public notices anywhere in the townsite in relation to the purported rezoning. None of the deponents were aware of any notice published in the press and each maintains that they would have objected to the change in zoning if they had become aware. The following is a list of the deponents and the position of their property with respect to townsite lots.

(a) Affidavit of Don Hanran-Smith sworn 31 March 2005.

Mr Hanran-Smith and his wife own Lot 5 Elsegood Avenue. The property is adjacent to and overlooks the Surfside lots and is one of the four lots in Elsegood Avenue.

(b) Affidavit of Daniel Smetana sworn 6 April 2005.

Together with Anthony John McCartney, Mr Smetana owns Lot 68 Elsegood Avenue which is adjacent to and overlooking the Surfside lots and the residential lots.

(c) Affidavit of Russell Brearley sworn 6 April 2005.

Mr Brearley and his wife Carroll are the owners of five lots on Elsegood Avenue including Lots 2, 3, and 24. Their property is adjacent to and overlooks the Surfside lots and also includes three of the four lots in the Elsegood Ave land.

(d) Affidavit of Ronald Edwards dated 6 April 2005.

Mr Edwards is the immediate past President of the Association. His property in Yallingup overlooks the Surfside lots and the residential lots.

(e) Affidavit of Ronald Warren Woss sworn 6 April 2005.

Mr Woss's property overlooks the Surfside lots and residential lots.

(f) Affidavit of Graham John Greig sworn 6 April 2005.

Mr Greig deposes to the fact that his property at 56 Wardenup Crescent, Yallingup, overlooks the Surfside lots and residential lots.

(g) Affidavit of Geoffrey Hewitt sworn 6 April 2005.

Mr Hewitt and his wife are the owners of 31 Elsegood Avenue, Yallingup. Their property overlooks the Surfside lots and the residential lots.

Ms Greig's property overlooks the Surfside lots and residential lots.

(i) Affidavit of Andrea Denise Williams sworn 7 April 2005.

Ms Williams' property overlooks the Surfside lots and residential lots.

Mr Farrell and his wife are owners of Lot 32 Elsegood Avenue which is land adjacent to and overlooking the Surfside lots.

(k) Affidavit of John William Price sworn 14 April 2005.

Mr Price states that he resides in Yallingup but does not give a specific address. His property does not overlook either the Surfside lots or the residential lots.

47 The affidavit of Nigel Edward Bancroft sworn on 12 May 2005 was filed on behalf of the Shire. Mr Bancroft was employed by the Shire from 1994 to June 1999 in the positions, firstly, of Manager Strategic Planning and, secondly, of Director of Planning. He then ceased employment but later recommenced employment in December 2004. Mr Bancroft deposes to the following chronology of events including and commencing with the decision of the Shire to prepare a district planning scheme:

(a) On 25 November 1992, at its ordinary Council meeting, the Council resolved to prepare a new district town planning scheme ("draft scheme") in relation to an area which was delineated on a scheme area map and included the Yallingup area.

(b) On 15 January 1993 notice of the Council's resolution was published in the Government Gazette.

(c) On 21 September 1993 the Shire wrote to various statutory bodies and agencies giving notice of the preparation of the draft scheme.

(d) On 12 June 1997 the Minister for Planning gave consent for the draft scheme to be advertised for public inspection.

(e) On 2 July 1997 the WA Planning Commission ("WAPC") advised the Shire of the Minister's consent.

(f) On 4 July 1997 notice that the draft scheme was available for inspection and inviting submissions was published in the Government Gazette.

(g) On 4 July 1997 the Shire wrote a letter to various statutory bodies and other persons as appeared to the Shire to be likely to be affected by the draft scheme giving notice that the draft scheme was available for inspection and inviting submissions.

(h) On 7 July 1997 the Shire wrote to various persons giving notice that the draft scheme was available for inspection and that submissions could be made.

(i) On 9 July 1997 the Shire gave notice in the Busselton Dunsborough Mail newspaper that the draft scheme was available for inspection.

(j) Mr Bancroft prepared a one and a half page note to a member of the Shire's staff which included numerous instructions. The note, which is annexed to the affidavit, is undated but includes as a postscript the words "Copy to Library - Notice Board and Alison". According to Mr Bancroft, the postscript was an instruction for the notice of the draft scheme to be placed on the main notice board of the Shire's offices and the Shire's library and for a copy of the draft scheme documents to be given to the receptionist. Mr Bancroft states that this was in accordance with the Shire's practice at the time. The copy of the draft scheme documents was provided to the receptionist in order to be made available for public inspection and perusal at the front counter.

Mr Bancroft states that he has no reason to conclude otherwise than that his instruction and these practices were complied with. However, it is clearly the case that he is unable to depose to any recollection of these instructions being carried out.

(k) Submissions were received as late as 16 October 1997 and were considered by Council.

(l) On or about 17 December 1997, the Shire wrote to all persons who made submissions acknowledging receipt, inviting them to attend a briefing session and advising whether the submission was rejected, or accepted with the draft scheme being modified accordingly. The mailing list is not annexed to the affidavit.

(m) On 19 August 1999 the WAPC wrote to the Shire advising that the Minister had granted final approval of the new scheme on 11 August 1999.

(n) On 7 September 1999 notice of the Minister's final approval of the new scheme was published in the Government Gazette.

(o) On 23 September 1999 notice of the Minister's approval of the new scheme was advertised in the Busselton-Margaret Times newspaper.

48 The letter of 4 July 1997, said to be written to statutory bodies and "other persons as appeared to the Shire to be likely to be affected by the proposed scheme", was in fact only sent to various government organisations and departments. The letter of 7 July 1997 was sent to various community associations and groups. With respect to the Yallingup area, the letter was sent to the Yallingup Residents Association, the Yallingup Progress Association and Yallingup LCDC. It would appear that letters were sent to the owners of the land affected by the scheme in Yallingup or elsewhere. Further, the letter to these associations and groups did not contain any request that the information be passed on to any affected landowners in their area. The letter of 17 December 1997 is said to have been written to those who provided submissions on the draft scheme. However, the names of those who were sent such a letter are not included in Mr Bancroft's affidavit.

49 It can be seen from the summary of the Shire's actions, as set out in the affidavit of Mr Bancroft, that an individual landowner would only have become aware of the proposed zoning changes if he or she had attended the Shire office or the Shire library, had read the Government Gazette on 4 July 1997 or the Council Notices in the Busselton Dunsborough Mail on 9 July 1997, or was a member of one of the local associations, providing that the Association advised each of its members as a result of the Shire's letter.

50 The affidavit of Michael Swift was filed on behalf of Silverland. At the time the affidavit was sworn on 18 May 2005, Mr Swift was a director of a firm which was commissioned by Silverland to oversee and coordinate the design and approval tasks associated with the development of the Surfside lots. However, between 1992 and 1997 Mr Swift was employed by the Shire as its Principal Planner and from 1997 to 2002 as its Chief Executive Officer. The chronology of relevant events given by Mr Swift does not conflict with that provided by Mr Bancroft. However, it is a more detailed chronology and makes reference to additional occasions on which the draft scheme was advertised and other circumstances in which the draft scheme was placed in the public arena.

51 With one exception (the letter of 7 July 1997), the following list is of the additional matters set out in the chronology of Mr Swift:

(a) On 7 December 1992 the Shire advised the Department of Planning and Urban Development ("DPUD") that preparation of the draft scheme was almost complete and sought DPUD's agreement for the Shire to conduct a two stage consultation process whereby the draft scheme would be exhibited for inspection and comment by all relevant parties and thereafter a revised draft, based on such comments, would be prepared that would proceed through the formal processes.

The wide scope of the consultation proposed and its purpose is set out in the following extract from the letter:

"It is proposed, instead, to open up the process to early, intensive consultation. This simply means Council laying open the Draft Scheme (warts and all) and inviting input from all the players at once.

Government Authorities, community, neighbouring Shires, Department of Planning & Urban Development and Councillors - and Council Officers themselves, would all be given the opportunity to constructively criticise the Draft.

This mass influx of information would then be used to formulate a revised Draft which (should) be close to the mark in terms of addressing the issues ...

The South-West Region Planning Committee is also requested to agree that the draft scheme be advertised on a 'total consultation' basis, with all authorities, community groups, individuals, Councillors, Council Departments and Council Officers invited to comment simultaneously and on an equal footing." [italics only added]

(b) By letter dated 25 May 1993, DPUD advised the Shire that it would be necessary for the Shire to prepare a scheme report. The primary function of such a report was stated in the letter to be "to give planning rationale and justification to each aspect of the Scheme". It was further stated that "this involves presentation of the relevant background information and analysis, and an outline and explanation of the various scheme proposals".

(c) In accordance with its decision to conduct a two stage consultation process, the Shire placed a notice in the Local Government Notices section of the 26 August 1993 edition of the Busselton-Margaret Times inviting public inspection and comment on the draft scheme and identifying the dates between which the draft scheme would be available for inspection at the Council Chambers and the Dunsborough Tourist Bureau. The draft scheme identified the relevant land in Yallingup as a tourist zone.

(d) The Shire placed a further notice in the 9 September 1993 edition of the Busselton-Margaret Times inviting public inspection and comment on the draft scheme and adding the Busselton Public Library as another place where the draft scheme could be viewed.

(e) On 23 September 1993 the Shire wrote to the Association and others noting that, due to a printing deadline, there were some zoning and mapping errors and attaching amended copies of the sheets on which the errors occurred. I note that the list of addressees for the letter is different to the lists for the letters of 21 September 1993 and 4 July 1997 annexed to the affidavit of Mr Bancroft. The list for this letter includes certain individuals although the basis of their inclusion in the list is not identified.

(f) By letter dated 5 October 1993 addressed to the Shire, Feilman Planning Consultants made submissions on behalf of Griffin Coal in relation to the draft scheme. The submissions acknowledge the proposed new "Tourist Zone" in the draft scheme and seek to include within it Griffin Coal's site known as Cape Farm in Bunker Bay.

The purpose in referring to this letter is unclear. Presumably it provides an indication that at least some landowners affected by the scheme were aware of the proposal for a tourist zone. However, in the absence of information concerning the way in which that organisation came to be aware of the proposal, little weight can be attached to it.

(g) The Shire placed another notice, in identical terms to the last, in the Local Government Notices section of the 7 October 1993 edition of the Busselton-Margaret Times.

(h) By letter dated 18 October 1993 the Association wrote to Mr Swift in his capacity as Town Planner thanking him for the opportunity to comment on the draft scheme. The Association also invited Mr Swift to speak at its next meeting on 9 January 1994. In the text of the letter the Association noted that it was "comfortable with the notion that the designated tourist development sites have a higher density". With respect to the Surfside lots, the Association made a specific recommendation including that the portion of this site used for commercial purposes be a lower density development.

(i) A further notice was published in the Local Government Notices section of the Busselton-Margaret Times on 21 October 1993. The only change to the wording of the notice was to extend the period during which the draft scheme may be inspected.

(j) Under cover of a letter dated 29 February 1994 the Association made submissions to the Shire for the designation of the Yallingup townsite as a special character area. The Association emphasised the importance of maintaining the existing emphasis on low cost short-stay accommodation and strongly opposed group housing development and "any further changes in the zoning in the immediate townsite area". The Surfside lots were the subject of specific comment.

(k) On 26 April 1994 the Shire's Special Town Planning and Building Committee recommended that Council submit the draft scheme to DPUD with a request that approval be given for advertising the draft scheme for public comment for a period of three months.

(l) On 27 April 1994 Council resolved to adopt the Committee's recommendation.

(m) By letter dated 2 July 1997 the WAPC advised the Shire that Ministerial consent had been given to advertise for public inspection the amended draft scheme.

(n) On 2 July 1997 the Busselton-Margaret Times included a notice placed by the Shire inviting public inspection and comment on the draft scheme and advising that the plans and document had been deposited at the Council offices and the WAPC and could be inspected up to and including 2 October 1997.

(o) By letter dated 7 July 1997 the Shire advised the Association and others that the draft scheme was available for public inspection and comment at the Council offices and other locations until 2 October 1997. The list of addressees is a different one from that previously used when sending the letter referred to in item v. However, the list is consistent with the list referred to by Mr Bancroft as having been used to send the letter of 7 July 1997.

(p) On 29 July 1997 the Department of Environmental Protection provided written advice that the draft scheme would not be subject to assessment under s 48A of the Environmental Protection Act 1986 (WA). However, environmental issues would still be dealt with when applications for development were made.

(q) The Shire placed a notice in the 24 September 1997 edition of the Busselton Dunsborough Mail advising of the residential zoning proposals under the draft scheme. However, the copy of the relevant notice annexed to Mr Swift's affidavit concerns the industrial zoning proposals.

(r) On 17 December 1997 the Shire advised parties who had made submissions on the draft scheme of its recommendations in relation to their submissions. The list of addressees is different to that used in any earlier correspondence and does not include the Association. A schedule of submissions is also attached and does not include the Association nor does it make reference to the Association's submission. This would appear to be the mailing list which was omitted from Mr Bancroft's affidavit.

(s) By letter dated 27 May 1998 the Shire advised the Ministry for Planning that TPS 20, being the draft scheme as amended at that date, had been approved and requested that TPS 20 be submitted to the Minister for final approval. Copies of the scheme text, maps, schedules and submissions were enclosed.

(t) On 24 February 1999 the WAPC advised the Shire of modifications to TPS 20 it required prior to final approval being granted. The modifications did not relate to either the Surfside lots or the residential lots.

(u) On 21 April 1999 the Shire resolved to defer further consideration of TPS 20 until the modifications proposed by the WAPC had been considered in a workshop.

(v) On 21 April 1999 the Shire's Executive Committee met to consider the modifications required by the Minister for Planning and to make recommendations to Council.

(w) On 28 April 1999 the Shire resolved to submit TPS 20, subject to modifications, to the WAPC and the Minister for Planning for final approval.

52 It would appear that there was not a standard list of addressees for all communications concerning the draft scheme. No explanation was provided for why a standard list, or one of two standard lists depending on the purpose of the letter, was not used when dealing with the same issue. Neither is it clear to me why the Association's submissions were not included in any summary of submissions relevant to the draft scheme or why the Association was not made aware by the letter of 17 December 1997 of the Shire's recommendation on its submission.

53 It can be seen from the evidence of Mr Bancroft and Mr Swift that, apart from publication in the Government Gazette, the draft scheme was advertised in a local newspaper, usually in the Local Government Notices section of the Busselton-Margaret Times, on seven occasions. On another five occasions the Shire wrote to various persons considered to have an interest in the draft scheme. It is also apparent from the information in the affidavits that the Association was well aware of the terms of the draft scheme and had participated in the consultation process. With the exception of Mr Edwards, there is no evidence as to whether any of the deponents who have stated that they were not aware of the terms of the draft scheme affecting the Surfside lots and residential lots, were members of the Association. Mr Edwards was the President of the Association at the time that Silverland's development application was made. However, it would appear that he did not hold that position during the period leading up to Ministerial approval of TPS 20.

54 There is also an absence of evidence of any action taken by the Association to advise its membership of the changes to zoning effected by TPS 20. There is no evidence from the owner of the Surfside lots that there was a failure to consult.

55 The Association seeks a declaration that the purported change in zoning of the townsite lots as "Tourist" is invalid. The proposition that the zoning change is invalid is based on the allegation that the change occurred without notice to the owners of the residential lots and of the owners of land adjoining the townsite lots, contrary to the Shire's obligation under s 7(2aa) of the TPD Act to consult "such public authorities and persons as appear ... to be likely to be affected".

56 The Association does not seek to invalidate the whole of TPS 20 and suggests that, if it is established that the provisions of s 7(2aa) were not met with respect to the townsite lots, it is open to the Court to sever that portion of TPS 20 dealing with the townsite lots.

57 Section 7 of the TPD Act identifies the procedure to be adopted before a local government's town planning scheme, or amendment to a town planning scheme, comes into effect. The Regulations also sets out additional obligations on the Shire with respect to town planning schemes, from the point of the resolution to prepare or to amend a scheme to the endorsement and deposit of a scheme once approved by the Minister: reg 4 to reg 25AA. Those obligations include publication of resolutions pertaining to the draft scheme and of the scheme itself, throughout the various stages. The relevant steps set out in s 7 are subject to compliance with s 7, s 7A1, s 7A2, s 7A3 and s 7A4 which relate to schemes affecting the Swan Valley and also to environmental issues, neither of which have application to this matter and will therefore be omitted from the following summary of the statutory framework.

58 Section 7(1) allows local governments to prepare town planning schemes and to amend a town planning scheme. Once the draft scheme is prepared and adopted, the local government is required to advertise the draft scheme for public inspection in accordance with the Regulations: s 7(2)(a). The draft scheme is then submitted to the Minister for approval: s 7(2)(b).

59 However, both these steps are stated to be subject to subs (2aa) which is in the following terms:

"A local government shall, before submitting a town planning scheme or amendment to the Minister under subsection (2)(b), make reasonable endeavours to consult in respect of the town planning scheme or amendment such public authorities and persons as appear to the local government to be likely to be affected by the town planning scheme or amendment." [emphasis added]

60 Section 7(2a) sets out the options open to the Minister when a town planning scheme is submitted to him under subs (2)(b). He may either approve the scheme or amendment (subs (2a)(a)), require modifications to the scheme or amendment before it is resubmitted for his approval (subs (2a)(b)), or refuse to approve the scheme or amendment (subs (2a)(c)). Section 7(3) states that when a scheme or amendment is approved by the Minister and published in the Government Gazette, it shall have full force and effect as if it were enacted by the TPD Act. Section 7(4) sets out the ways in which a town planning scheme may be revoked, varied or amplified. Variation or amplification of a town planning scheme is effected by an amendment to the scheme prepared by local government, approved by the Minister and published in the Government Gazette: s 7(4)(b). The remaining subsections are of no relevance to the issue to be resolved.

61 Subsection (2aa) was an addition to s 7 which came into effect on proclamation on 4 August 1996. As can be seen from the chronologies to which I have already referred, by that stage the process of rezoning had already commenced. However, TPS 20 was not submitted to the Minister for approval until 28 April 1999 by which time the requirement to consult was in effect.

62 Regulation 15 sets out the requirements for advertising a scheme. Regulation 15(1) and reg 15(3) deal with the content of the notice to be published when consent to advertise the scheme has been granted. Subregulation (1) requires the Shire to advertise the scheme in the form of a notice and to take the necessary steps "to make public the details of the Scheme". Under reg 15(3) that obligation is met by publication of the notice in the Government Gazette and by publication on one occasion in "a newspaper circulating in the district where the land the subject of the Scheme is situated". The Shire is also required to display a copy of the notice in the offices of the responsible authority. A copy of the scheme is to be made available for public inspection during office hours at the Shire's office and a copy of the relevant portion of the scheme is to be made available at the office of any local government affected by the scheme: reg 15(2). These provisions are the regulations relevant to advertising a draft scheme under s 7(2)(a) of the TPD Act.

63 Regulation 15(4) deals specifically with consultation required by s 7(2aa):

"(4) The responsible authority shall give to each public authority and other person whom the local government is required by section 7(2aa) of the Act to consult, and in the case of a development scheme to every landowner within the area the subject of the Scheme a notice in writing in the Form No 3 in Appendix A."

64 Regulation 15(4) has been in the Regulations from the start, although in a slightly different form. As initially enacted, the requirement was to give notice to every public authority affected by the scheme: Government Gazette 28 November 1967 (at 3231). In 1981 subreg (4) was amended to include, "in the case of a development scheme, to every landowner within the area the subject of the scheme": Government Gazette 15 May 1981 (at 1494). However, the way in which the amendment was effected removed the qualification that the public authorities to be given notice had to be affected by the scheme. That unintended omission was corrected in 1986: Government Gazette 7 March 1986 (at 705). The reference to "each public authority and other person whom the local government is required by section 9(2aa) of the Act to consult" was inserted into the regulations on publication in the Government Gazette on 2 August 1996. Consequently, as TPS 20 was not submitted to the Minister for approval until 28 April 1999, at the relevant time the Shire was required to meet the obligation set out in reg 15(4).

65 It is apparent from the reference in reg 15(4) to Form No 3 in appendix A that the form of the notice to be provided under s 7(2aa) is the same as the notice to be published in the Government Gazette and in the newspaper and to be displayed in a prominent place in the Shire office. Regulation 15(5) then identifies the content of the notice. The notice is to describe the purpose of the scheme, state the times and places where the scheme may be inspected, and specify a date on or before which submissions in respect of the scheme may be made providing that date is not less than three months from the date of publication in the Government Gazette. It can also be seen from the difference in the requirements of reg 15(3) and reg 15(4) that the requirement of "publication" is different from that of "consultation".

66 The Association alleges that the Shire failed to meet its obligation under s 7(2aa) of the TPD Act with respect to the township lots, thereby invalidating that portion of TPS 20 which changed the zoning of the township lots to tourist. That proposition gives rise to a number of issues of construction with respect to s 7(2aa).

(b) Construction of s 7(2aa) of the TPD Act

67 The Association submits that the Court should use an objective test to construe the phrase "make reasonable endeavours to consult". I accept that proposition. I see no reason why the use of the term "reasonable" in this context would attract a different approach to the use of the term in other statutory contexts.

68 I have greater difficulty with the Association's submission on the approach to be taken to identifying the persons to be consulted. The persons to be consulted are those "as appear to the local government to be likely to be affected". The Association also submits that this requirement should be construed objectively. In my view, the effect of an objective construction is to ignore the expression "as appear to the local government" and render it redundant. Also, as I have noted, the inclusion of the adverb "reasonably" is the more usual form of drafting consistent with an objective construction. However, reliance on a wholly subjective test would hardly encourage broad consultation. The fact that public consultation was considered of sufficient significance to justify a legislative amendment is, in my view, inconsistent with a restrictive interpretation of the provision either in the scope of those consulted or in the content of the information provided for the purpose of initiating consultation. The words "likely to be affected" create an obligation on the Shire to make decisions of a qualitative kind about persons who are likely to be affected more than others or to the exclusion of others within the area covered by the scheme. Whilst selection of those to be consulted is an obligation placed on the Shire, and is to that extent subjective, that approach is consistent with recognition of the fact that those involved in the preparation of the scheme are the ones who would be in the best position to ascertain those affected by it.

69 However, in my view, once the exercise of identifying those to be consulted has been undertaken by the local government and falls to be reviewed, the appropriate approach is to ask whether a local government officer could reasonably have considered that a particular person or group of persons was not likely to have been affected by the scheme, or to put it another way, whether the local government officer could reasonably have failed to appreciate that a particular person or any group of persons was likely to be affected.

70 I consider that conclusion to be supported by the decision of the High Court in R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 where the Court was asked to construe the expression "as appear to the local government to be likely to be affected", although in a different context. Latham CJ said (at 430):

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power."

The conclusion is also supported by the decision of the Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (at 299).

71 In resolving this issue it must first be kept in mind that the act (or omission) complained of is an executive act and not a judicial one and the Court's power to interfere with an act of executive authority only arises in a limited class of case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (at 228) per Lord Greene MR with whom Somerville LJ and Singleton J agreed. Lord Greene considered the scope of the test as follows (at 229):

"I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty - these of course, stand by themselves - unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent."

Lord Greene MR further considered the meaning of the term "unreasonable" and the inter-connectedness of most explanations of the term and of the various examples proffered (at 229):

"It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in the law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person would ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation ([1926] Ch 66 at 90, 91) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."

Ultimately, the Court identified the following test for reviewing an act of executive authority (at 230):

"It is true to say, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere."

72 In determining the effect of s 7(2aa) I have considered the order in which the scope of each aspect of the obligation to consult (that is, the persons consulted and the material to be provided) should be determined. In my view, the terms are interconnected. To a certain extent the scope of one may affect the other. However, I have formed the view that, in principle, the individual issues should be separately determined. Consequently, in the course of each determination consideration should be given to the impact on the other in order to ensure that the conclusion reached does indeed reflect the legislature's intention. I consider the appropriate starting point to be the identification of those "persons as appear ... likely to be affected".

73 Section 7(2aa) provides for consultation with "such public authorities and persons as appear to the local government to be likely to be affected by the town planning scheme or amendment". The Association's position is that the owners of land directly affected by the scheme and all adjoining landowners should be consulted.

74 The circumstances of this case do not specifically relate to any consultation with public authorities. However, because of the terms of s 7(2aa), it would be reasonable to expect consultation of a similar scope with both public authorities and with landowners and other persons. On behalf of the Shire it is said that the extent of consultation with government agencies suggests that the Shire was concerned to extend, not restrict, the prescribed notification requirements. It is the case that the list of public authorities is quite extensive, although the Court has not been provided with evidence of any other list to which it can be compared. However, it must be kept in mind that the Yallingup townsite is only one of many areas affected by TPS 20. In my view, the number of public authorities consulted is as likely to reflect the breadth of the scheme as the extent of the consultation and the nature of the changes implemented by it. On that basis, I consider that any comparison with the extent of consultation with public authorities does not assist in determining the scope of consultation with interested persons.

75 Neither do I consider that the extent of consultation with public authorities is indicative of an intention to widely consult every person entitled to be consulted. Contact between agencies may well be viewed by the Shire as of greater significance. In the absence of any evidence establishing that it was the approach taken by the Council to firstly determine the scope of the consultation to be undertaken with all interested parties, I do not believe that the evidence of consultation with public authorities is of assistance.

76 However, some assistance in determining those persons with a right to be consulted can be found in the wording of reg 15(4) where a distinction between scheme changes and development schemes is made. In the former category a copy of the notice is to be given to public authorities and persons likely to be affected. However, in the case of a development scheme, a copy of the notice is to be given to "every landowner within the area the subject of the Scheme". It would seem then that the term "persons likely to be affected" must be something less than "every landowner within the area". However, the requirement to give notice to every landowner in the area where a development scheme is proposed provides some support for the view that certain changes have an affect well beyond the land to which they directly apply. On that basis, it can readily be argued that a scheme which affects a change of zoning to a particular lot is likely to affect at least the adjoining landowners.

77 In determining whether persons other than the owners of directly affected land should be included in the group to be consulted, I consider proximity to the directly affected land to be a relevant factor. In my view, changes to the use of the land affected by the scheme, or changes to the type and density of development of that land arising from a change in use, will in most cases have some level of impact on the owners of adjoining land. Whether the nature and extent of that impact is such as to warrant consultation will depend on the circumstances.

78 In my view, a change in the zoning of land will necessarily impact on the owner of that land. Further, I consider a change in zoning has the potential to adversely impact on the amenity of adjoining land, thereby warranting consultation with adjoining landowners. It is unnecessary for me to decide the extent of consultation with respect to other changes effected by a town planning scheme.

79 I do not accept the submission that this level of consultation is too onerous. It can be seen from the legislative provisions that the implementation of a town planning scheme is quite an involved exercise requiring considerable resources. Fortunately, it is not an exercise that is carried out on a regular basis. I see no reason why the statutory requirement to consult persons likely to be affected should be the obligation that is to be curtailed. I accept that the exercise will require more resources than mere consultation of collective bodies such as ratepayers' associations. Effectively, the right to be consulted is the only right which accrues to a person when a town planning scheme which affects the land the person owns is implemented by government; that is other than the right to vote against the government responsible for the scheme. In view of the importance of the consultation process, that circumstance does not convince me that consultation with individuals affected is onerous.

80 In Vanmeld Pty Ltd v Fairfield City Council & Anor [1999] NSWCA 6; (1999) 46 NSWLR 78 Spigelman CJ supported the importance of the process of public consultation in the formulation of local government plans, a principle which he considered to have been long recognised by the Courts, for example, by the High Court in Scurr & Ors v Brisbane City Council & Anor [1973] HCA 39; (1973) 133 CLR 242 (at 251 - 252). His Honour further noted that the detailed scheme of consultation and public exhibition in the Environmental Protection Act 1986 made it clear that Parliament regarded the procedural steps as of considerable significance for the integrity of the process of formulating local environment plans: see also Darling Casino Ltd v Minister for Planning [1995] NSWLEC 62 and Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 per Lord Morris of Borth-Y-Gest (at 1124).

81 It is not possible to lay down criteria of general application for the identification of persons likely to be affected by a town planning scheme. Identification of the group to be consulted will be affected by the relevant circumstances, including the nature of the changes arising from the scheme. However, in my view, the owner of land which has had its zoning changed under a town planning scheme is clearly a person likely to be affected by a town planning scheme and is entitled to be consulted. I consider the owners of land directly adjoining the "re-zoned" land are also likely to be affected and should also be consulted.

82 I cannot accept the submission made by the respondent parties that consultation involving advising each landowner and adjoining landowner of the proposed scheme, and inviting a response, is too onerous. Local governments commonly send notices to ratepayers about matters of no greater significance than a change in zoning to a ratepayer's land. I do not accept that the cost of the preparation of relevant material, and a "mail out" of that material to those who have a statutory right to be consulted, is so onerous as to lead to the conclusion that s 7(2aa) should be more narrowly construed. Further, the zoning of land is one of the most significant matters relating to the ownership of land. In my view, it can hardly be said that, in those circumstances, a right of all landowners and adjoining landowners to be consulted creates an unduly onerous obligation on local government.

83 I turn now to consider the nature of the consultation provided for in s 7(2aa). The term "consult" is not defined in the TPD Act. In the Association's view, in this context the term means "to communicate with or to discuss". Another interpretation suggested was "to give direct particular information to". Silverland relies on a dictionary definition of the term "consult". In the "Macquarie Dictionary" (3rd ed) the term is defined to mean "to refer to for information" and "to have regard for (a person's interest, convenience, etc) in making plans".

84 The Association submitted that a requirement to merely give notice is too restrictive an interpretation. The Association's submission is that the level of consultation required with the owners of land which has had a change in zoning as a result of TPS 20, and with adjoining landowners, is direct communication inviting a response. The Association further submits that the term "consult" in s 7(2aa) has a two stage definition which requires the Shire to provide the affected and adjacent landowners sufficient information to enable them to determine how their interests may be affected and then to give them sufficient opportunity to make any submission in relation to the proposal. If these propositions are accepted, publishing a notice in a newspaper would not satisfy a requirement to consult; something more direct, more certain of coming to the person's attention and conducive to receiving feedback would be necessary.

85 Where the draft scheme provides for a significant change affecting the amenity of the area, the Association's position is that it was incumbent on the Shire, in order to comply with the TPD Act, to write directly to the landowners and adjoining landowners, to advise of the zoning change and the effect of that change, including on the amenity of the area, and also to invite submissions, or contact for the purposes of consultation. It is said that to require any less would be to give the term no operative effect, particularly where the term is qualified by the reference to "reasonable" endeavours and where those to be consulted must be "apparent to the local government".

86 The basis of the entitlement to that level of information is said to be the fact that the catalyst for consultation is that the person's interests are likely to be affected. It is said to follow that landowners and adjoining landowners are therefore entitled to know that their interest or convenience may be affected, not merely that a planning scheme for the whole of the Shire is being considered. However, in my view, the phrase "likely to be affected" only describes the pool of people to be consulted. It does not colour the nature of the consultation which is required.

87 Silverland's position is that the obligation to consult under s 7(2aa) does not carry with it an obligation to give actual notice to each individual ratepayer or landowner of the scheme or amendment. It is said that merely advertising notice of the scheme would suffice as compliance with the obligation to consult. Silverland also submitted that the classification of the obligation to consult as one requiring reasonable endeavours, reflects two important aspects of the process for enactment of a scheme under the TPD Act. The first aspect is that landowners and residents are under no obligation to participate in any process of consultation. Secondly, the provision applies to the enactment of schemes that may put in place extremely detailed planning regulations over a large area. It is said that there must be reasonable limits upon the extent of the endeavours required to be undertaken in order to allow consultation so that the process of enactment of a scheme may proceed in a timely and efficient manner. As a general statement, I have no difficulty with that proposition. However, I do not accept that any limitation on the extent of the endeavours to consult should apply to the way in which a person is notified of the right to be consulted.

88 Silverland submits that the steps taken in relation to the scheme fulfil any notification obligation under the TPD Act; drafts of the scheme were advertised, copies were made available and group meetings were arranged. Submissions were received concerning Surfside and the introduction of the tourist zoning from the Association. Further, it is said, the mandatory requirement for actual notice contended for by the Association is not only inconsistent with the TPD Act but would impose an obligation that would be extremely difficult, if not impossible, to fulfil in the case of a scheme. It would require the Shire to notify each owner in the area of each change individually effected by the new scheme that may be likely to affect that owner. Of course, that is exactly the Association's interpretation of the obligation.

89 In Darling Casino Ltd v Minister for Planning (at 12), Pearlman J, in considering the meaning of the term "consultation" in the context of an environmental planning policy, referred to the following conclusion of Bucknill J in Rollo & Anor v Minister of Town and Country Planning [1948] 1 All ER 13 (at 17):

"A certain amount has been said as to what consultation means ... it means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice."

It can be seen that this interpretation requires, as counsel for the Association noted, a two step process:

90 In TVW Enterprises Ltd v Duffy & Ors (No 2) (1985) 7 FCR 172 Toohey J (at 178 - 179) observed that, irrespective of the statutory context, the obligation to consult carries a responsibility to give those consulted an opportunity to be heard and express their views so they may be taken into account.

91 The decision of the Privy Council in Darling Casino Ltd v Minister for Planning to Port Louis Corporation v Attorney-General of Mauritius provides support for the Association's position. The following statement of Lord Morris of Borth-Y-Gest addresses the content of the requirement to consult and also the importance of it (at 1124):

"If there is a proposal to alter the boundaries of a town ... such alteration must not be made until after consultation with the local authority concerned. It follows that the local authority must know what is proposed before they can be expected to give their views ... the requirement of consultation is never to be treated perfunctorily or as a mere formality."

See also Port Louis Corporation v Attorney-General for Mauritius, cited by the High Court with approval in TVW Enterprises Ltd v Duffy & Ors (No 2) at (172 - 173), on the importance of the requirement of consultation. This decision supports the proposition that knowledge of what is proposed is necessary although it does not specifically require that the impact of the proposal is identified.

92 Of course, it must be noted that knowledge of what is to be proposed need not necessarily result from the provision of information identifying the specific impact of the proposal on the person to be consulted. It can be gleaned from the document containing the proposal. If the right to be consulted only involves being directly notified of the change of circumstances and having your views considered by the Shire, then any document in which that change of circumstances is set out would suffice as notification.

93 The extent of the obligation "to make reasonable endeavours to consult" must be construed by reference to the language of the Act viewed as a whole, including the regulations made under that Act: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69]). Some assistance on the nature of the consultation can be found in the wording of reg 15(4) and reg 15(5) which state that persons entitled to be consulted under s 7(2aa) are at least entitled to be "given" a copy of the written notice which is advertised in the Government Gazette and the newspaper. Under the Regulations the notice is required to describe the purpose of the scheme, the times and places where the scheme may be inspected and specify the date within which submissions may be made. On that basis, once a landowner has been identified as a person likely to be affected, the entitlement under the Regulations is to be given a copy of the notice. All the usual meaning of the verb "give", such as "deliver", "hand over", "present", connote an act more direct than placing a copy of a notice somewhere it might be seen.

94 Further support for a construction requiring something more than advertising the scheme in a local newspaper can be found in s 7(2)(a) which contains a requirement, independent of s 7(2aa), for a town planning scheme to be advertised. Senior counsel for Silverland maintains that, rather than supporting a construction that something more than advertising is required to initiate consultation, s 7(2) of the TPD Act makes it clear that notice is to be by way of advertising for public inspection. I cannot accept that proposition. Section 7(2) merely identifies one way of giving notice. Significantly, s 7(2) is expressly stated to be subject to subs (2aa) and s 7(2)(a) contains a separate and distinct obligation to advertise the scheme or amendment to a scheme for public inspection in accordance with the Regulations. It is not until both obligations are met that the scheme or amendment is submitted to the Minister for approval. As the requirement to advertise is stated to be subject to the obligation to consult under s 7(2aa), the effect of Silverland's construction is that the legislature intended the obligation to advertise to be subject to an obligation to advertise.

95 In my view, the term "advertise" in s 7(2) is used in contradistinction to "consult", the term used in s 7(2aa). If advertising was all that was required, consistency of terminology would be expected. Further, it could be argued that, if advertising was all that was required, there would be no need for subs (2aa), as subs (2)(a) already created that obligation. However, the right to be consulted is conferred by s 7(2aa) whereas the requirement to advertise only has the effect of advising members of the public of the proposal. Whilst the notice which is required to be advertised also invites submissions, an invitation to submit does not equate with a right to be consulted.

96 However, if advertising is a sufficient initiating process for the consultation required by s 7(2aa), the requirements of reg 15(4) are inconsistent. One of the effects of s 7(2)(a), reg 15(1) and Form No 3 is to confer on members of the public a right to make submissions. Because reg 17(1) requires the local authority to consider all submissions to the scheme, in effect, the combination of the provisions confers a right to be heard. This is because the combination of reg 15(1) and Form No 3 requires the notice of the scheme which is advertised to include an invitation to make submissions. If the extent of the obligation to consult was to advertise notice of the scheme and consider any submissions, there would be little purpose to s 7(2aa).

97 Another factor which may colour the interpretation of s 7(2aa) is the fact that some town planning schemes, including TPS 20 and particularly in Western Australia, cover an extensive area and directly or indirectly affect large numbers of people. In the context of this action, it also has to be kept in mind that TPS 20 makes changes directly affecting land within the whole of the Shire, not simply the Yallingup area. The owners of all land affected by the scheme are entitled to be consulted. Counsel for the Association conceded that the impact on the Shire when the obligation to consult is so extensive must be a relevant factor when interpreting s 7(2aa). The example given was that the Shire would be required to consult more closely with those persons directly affected by the scheme and to a progressively lesser extent with those less directly affected. However, as I have said, the further away from the land rezoned under TPS 20, the less "likely to be affected" the owners of such land would be.

98 I accept that the fact that changes implemented by town planning schemes are potentially extensive would have been a factor in determining the extent of the obligations imposed on local government with respect to such scheme. However, I am not persuaded that, because the effect of a scheme is extensive, the way in which the consultation process is initiated should or does vary. Further, I can see no reason why that process should take any different form as between owners of directly affected land and adjoining landowners.

99 As I have noted, it is said on behalf of the Shire and Silverland that such extensive consultation would place too onerous a burden on the Shire and could not have been intended by Parliament. However, as counsel for the Association points out, the inconvenience to the Shire must be weighed against the inconvenience to the public, in this case the residents of the Yallingup townsite, of finding that the zoning of their land has changed without any input on their part and without any consideration of the adverse consequences to some of the landowners arising from that change.

100 As I have indicated with respect to identifying the persons who have a right to be consulted, and for the reasons I have there mentioned, in my view, it can hardly be said that the obligation to consult affected landowners and adjoining landowners by providing them with the information affecting the zoning is so onerous as to limit either the persons to be consulted or the means by which the consultation takes place.

101 I accept the Association's submission that the level of consultation required is direct communication inviting a response. I consider that requirements of reg 15(4) are such that the obligation on the Shire to consult must include sending to the address of the person to be consulted, or his or her agent, a notice describing the purpose of the scheme, stating the times and places where the scheme may be inspected, inviting a response and specifying a date on or before which submissions on the scheme may be made. Because the TPD Act requires only reasonable endeavours, the Shire will have met its obligations by directly providing the landowner with that material, irrespective of whether the landowner responds and no "consultation" actually takes place. I can see no impediment to there being some variation in the extent of the process of consultation thereafter where there are many persons to be consulted providing that the attitude of those persons to the scheme is considered.

102 I do not accept the Association's submission that, in order to comply with the TPD Act, it is necessary to specifically advise of the particular change and the effect of that change, including on the amenity of the area. The obligation to consult relates to the scheme as a whole and not to each aspect of the scheme. In circumstances where there is a requirement to send a notice of the scheme, providing the level of material identified by the Association would almost certainly be of assistance to landowners in that they would not have to attend the Shire office for the inspection of the draft scheme before providing their views on it. However such a course would be resource intensive and it should be left to the particular council to determine whether it is prepared to adopt that course. If individual local councils wish to provide that service to their ratepayers is a matter for them. I do not consider that they have a statutory obligation to do so.

103 However, if the circumstances are that it would not be possible for a landowner to glean from a perusal of the scheme the direct impact on his or her land, for example, without some additional explanatory material, then I consider that it is incumbent on the Shire to provide that information.

104 Having identified the parameters of the obligation to consult under s 7(2aa) of the TPD Act, and before determining the effect of a failure to meet that obligation, it is necessary to consider whether there is evidence of any failure on the part of the Shire to consult persons affected by TPS 20.

105 The Association's position is that no consultation took place. That fact may result either from the Shire's failure to form the requisite opinion, the exercise being carried out with the conclusion draw either that no person was likely to be affected by the scheme or the landowners or adjoining landowners were not likely to be affected by the scheme. The Association maintains that, except with respect to the Surfside lots where the position as to consultation is unknown, notice was not given to the owners of the residential lots or owners of the land adjoining the townsite lots.

106 The owners of the Surfside lots do not assert any lack of consultation. Owners of land who seek to develop their land to the fullest extent are entitled to lobby local government to have the land rezoned to achieve that purpose. For that reason, it would not be outside the realms of possibility that the owners of the Surfside lots were aware of the proposed changes. On that basis, I would not be entitled to draw the conclusion that the owners of the Surfside lots were not consulted.

107 The affidavit material referred to above contains evidence from the owners of lots in each of the affected streets, but not from all of the owners of the residential lots. The evidence is that the adjoining landowners identified in the affidavits, and two actual landowners, Mr Brearley and Mr Hanran-Smith, who between them own all but one of the residential lots, were not notified that the Shire proposed to change the zoning of the relevant land to "Tourist" and did not participate in any discussion in relation to TPS 20. Of course, strictly speaking, the issue is not whether they were notified, it is whether they were notified by the Shire in which resides the responsibility to consult. However, if the relevant owners and adjoining owners were notified through the Association and had the opportunity to be heard through the Association, that too would impact on the discretion to grant the relief sought. However, the uncontested evidence was that, not only were they not notified, they were otherwise unaware of the proposed change in zoning.

108 The Shire notes that, with the exception of one landowner, Mr Hewitt, none of the other deponents actually depose to owning the land at the time of the rezoning. If they were not owners at the relevant time the failure to consult them cannot provide the basis for drawing an inference that there was a breach of the obligation to consult. On being made aware of this omission in the course of the hearing, counsel for the Association assured the Court that the deponents were actually owners of the land at the relevant time. However, statements of counsel are not evidence and hence there is a deficiency in the evidence which must be addressed before non-compliance can be established. A careful consideration of affidavit material reveals that, not only do each of the deponents maintain that they did not receive notice, they also said that they would have objected if they had been made aware. The use of the term "objected" connotes active opposition to the change of zoning affected by TPS 20, less likely where there is no longer a relationship to the land and hence no impact on rights with respect to property. I consider the tenor of the affidavit makes it more probable that the deponents were owners of the land at the relevant time.

109 The Court is asked to infer from the evidence provided that none of the owners of the residential lots, or any of the owners of land adjoining the townsite lots, were consulted. The evidentiary base from which that inference can be drawn is said also to include the evidence of Mr Bancroft and Mr Swift which makes no reference to any direct consultation between the Shire and any owners of land affected by the scheme change.

110 The material in the affidavits of Mr Bancroft and Mr Swift reveals occasions on which correspondence and information about TPS 20 was provided to a list of people and organisations, most of whom were members of public authorities or representative bodies. The remaining names on the list do not allow precise identification of the role played by them and, as the ownership of the remaining residential lot was not disclosed in evidence, it is not possible to identify any of the addressees as the owner of the remaining residential lot. However, from a consideration of the roles of the other addressees of the letters, and the uncontested affidavit evidence that all but one of the owners of the residential lots and many of the adjoining landowners were not consulted, I am satisfied that the inference can be drawn that the owner of the remaining residential lot was not one of the addressees on either of the two occasions on which the Shire conducted a mail out of information relevant to the scheme.

111 The Shire's response is that the evidence provided by it related only to the Surfside lots, as the application at the time related only to those lots. It was not called upon to address the issue of any communication with the owners of the residential lots. I accept that to be the case. However, the Shire was required to address the level of compliance with s 7(2aa) in the context of the Surfside lots. It is clear from the information provided that the Shire did not provide any evidence that the owners of those lots or the owners of land adjoining those lots had been directly advised. Because of the potential for the development on the Surfside land to change as a result of the changed zoning, if the owners of land adjoining those lots were not directly notified, I believe it is highly improbable that owners of land adjoining the residential lots were directly notified. Also, the approach taken by the Shire as set out in the affidavits of Mr Bancroft and Mr Swift is inconsistent with any direct notification of landowners or adjoining landowners.

112 Counsel for Silverland identified certain actions on the part of the Shire which are said to constitute evidence of the process of consultation with respect to TPS 20. Based on the finding I have made, I do not accept that any of these matters constitute consultation for the purposes of s 7(2a). However, in so far as it sets out each action taken by the Shire to advise members of the public and public authorities of TPS 20, the following list, which is derived from the affidavit evidence set out earlier in this judgment, is evidence of the Shire's failure to consult in accordance with s 7(2aa):

(a) In July 1997, notice of the proposed scheme advising it was available and inviting submissions was published in the Government Gazette and the Busselton Dunsborough Mail newspaper, was sent to various statutory bodies and was sent to interested groups and associations, including the Yallingup Residents Association, The Yallingup Progress Association, the Yallingup LCDC and the Dunsborough-Yallingup Chamber of Commerce;

(b) In July 1997, a copy of TPS 20 was made available for inspection at the Shire office and at the Shire library;

(c) On 17 December 1997 all persons who made submissions were invited to a briefing session;

(d) There had been earlier consultation in respect of a draft of TPS 20 in 1992 and 1993 that included the proposed tourist zone;

(e) By letter dated 18 October 1993 the Association responded to the draft TPS 20 stating "There must be No group developments. This must be specifically disqualified except in the approved tourist level areas" and made comments concerning the higher density on the designated tourist sites and specific reference to the block known as Surfside;

(f) On 29 February 1994, the Association sent a further submission to the Shire on the draft scheme, again with specific reference to the Surfside land; and

(g) The Association itself was formed as a result of community opposition to a proposal for the development of the Surfside land.

113 Omitted from this list is the correspondence concerning TPS 20 sent to various public authorities and organisations and the fact that, at some stage the Shire provided the Association with a copy of the draft scheme.

114 It can be seen that the only evidence put before the Court by the Shire is such as to provide the basis for an inference that either the act of identifying those to be consulted was not carried out or, if carried out, the group identified did not include the landowners or adjoining landowners. Either decision is capable of being the subject of invalidity.

115 The submission made by the Association is that the evidence of the Shire does not establish compliance or even substantial compliance with the statutory mandate in respect of the relevant lots. It is said that, even if direct contact was not required, what the Shire did in this case was not enough. I have concluded that direct contact was required. However, if it is established that the action taken by the Shire did indeed result in knowledge by the owners and adjoining landowners of the effect of the draft scheme and the right to make a submission, that situation would have an effect on the grant of the relief sought.

116 Further, it is submitted on behalf of Silverland that, to the extent that consultation required a consideration of submissions made in the process, there is no evidence of any failure to undertake such consideration. As I have indicated, the obligation to consult requires the Shire to give notice of the draft scheme in the form required by reg 15 to the person likely to be affected and, in the absence of voluntarily providing an indication of the way in which the scheme will affect the person's land, provide access to the draft scheme so that the way in which the scheme affects the land can be ascertained. The Shire is also required to invite submissions. In this way, the Shire initiates the consultation required by the Act. In the absence of a response from the person likely to be affected, no further obligation falls on the Shire unless some change is made to the scheme. However, as consultation is a mutual process, if the person responds to the invitation to make a submission, the Shire is obliged to consider that submission and afford to it all proper weight. In my view, the Shire would also be required to address any relevant and reasonable request for information in order to further inform the person consulted. I accept the submission that there is no evidence of any failure by the Shire to consider any submission received by it under s 7(2aa).

117 The Association even asserts that there was no consultation in relation to the zoning change between the Shire and the Association. It is said that the evidence of the Shire is that the Association was advised that the draft scheme was available for inspection and public comment, without reference to the proposed zoning change. The Association submits that this advice did not meet the requirement to consult. It is further said to be of significance that the failure to advise of the zoning changes to the townsite lots occurred in a context where the Shire's evidence is that the Association had previously requested that the Surfside lots "be given particular attention". I accept that this would be of significance if it were accurate.

118 That request is contained in a letter to the Shire from the Association dated 18 October 1993 which commences by referring to the fact that it had been given the opportunity to comment on the draft town planning scheme. There is no indication whether the Association was responding to the notice which had appeared in the Busselton-Margaret Times on 7 October 1993, and its invitation to view the draft town planning scheme text at the Shire offices, or to some prior correspondence directed to the Association. Counsel for the Association also stated in the course of the hearing that the Association never received a copy of the draft scheme_._ That statement is inconsistent with the material put before the Court. The letter of 18 October 1993 expresses the Association's understanding that the Shire was seeking "a broad brush response now with a more refined response to follow early next year". The Association set out in the letter some general comments on issues such as density and land use and made specific reference to the Surfside lots. Significantly, the letter also included the following paragraph:

"Committee would also ask that when nearby land owners are notified of development proposals in Yallingup, local organizations such as ours are also notified."

119 Although this is a reference to development applications rather than the final form of the town planning scheme, it indicates a belief that relevant information would be passed to "nearby landowners".

120 The relevance of that belief is that the Association did not consider itself the medium for the Shire to communicate information to nearby landowners and that position was drawn to the Shire's attention. Counsel for the Association states that this was the extent of the "consultation" between the Shire and the Association. However, it is apparent from the affidavit of Mr Bancroft that in February 1994 the Association provided to the Shire a written submission on the "Designation of Yallingup Townsite as a Special Character Area". In that submission the Association stated its position on changes of zoning and on group housing developments, with specific reference to the Surfside lots, in the following terms:

"To this end, the Association endorses the single-residential density and the proposed new rule for duplex construction contained in the draft Town Planning Scheme. However it is very strongly opposed to group housing development and any further changes in the zoning in the immediate townsite area."

121 Finally the Association also requests that the "Surfside" land be incorporated into the "advised development line" and notes that, historically, the site had been shown to be an extremely sensitive area.

122 On 7 July 1997 the Shire wrote to the Association advising it that the draft scheme was available for public inspection and comment at the Council offices and other locations until 2 October 1997 and also inviting submissions on the scheme. Perhaps it was this later draft scheme to which counsel referred when stating that the Association did not receive a copy of the scheme. Nevertheless, it was provided with access to the draft scheme and the notice of the draft scheme inviting submissions.

123 It appears that there was direct communication on the content of the draft scheme between the Association and the Shire, with written submissions on the changes effected by the draft scheme to the Yallingup being provided by the Association to the Shire. On that basis, the consultation with the Association may well have been adequate for the purposes of s 7(2aa). However, the issue arises of whether providing a copy of the draft scheme to an association of residents from the relevant area, and inviting submissions from the Association, is adequate compliance with the requirements of s 7(2aa). I consider that providing a copy of the notice to an agent of the landowner would constitute compliance. However, as I have indicated above, there is no evidence to suggest any relationship of agency between the Association and the owners of the townsite lots and the correspondence provided to the Shire indicates that even the Association did not consider itself to be an agent for the landowners or even a conduit of any relevant notices. I do not accept that consulting with an association of residents when it is not known whether the relevant landowner is a member of the association and no arrangements have been made to ensure that the necessary information is passed to the landowner, meets the consultation requirements of s 7(2aa). Consultation with representative associations may be an effective and a cost and time efficient method of communicating information to the public but it does not meet the obligation under s 7(2aa) to consult those persons likely to be affected by a town planning scheme.

124 Curiously, in light of its relationship with owners of land in the Yallingup townsite, and despite the fact that the Association's creation arose from the residents' concerns about the nature of a proposed development on the Surfside lots, there is no evidence before me that the members of the Association who had been dealing with the Shire and had been informed by the Shire, attempted to keep the other members informed. Indeed, the evidence is to the contrary because the affidavit evidence is that the owners of all but one of the residential lots and a number of adjoining landowners were not made aware of the potential effect of TPS 20. It is apparent from their evidence that, not only were those landowners not informed by the Shire, they were not informed by anyone.

125 The Court is then left in the situation where it cannot be established that the Shire has breached its obligations to consult with either of the other parties to this action, of whom only one was even owed an obligation. This fact has significance in terms of whether the relief sought should be granted.

126 Another issue raised was whether, where the applicant for relief actually fails to allege that the Shire even formed an opinion on who were the persons likely to be affected, the Court cannot conclude that there has been a breach of the obligation to consult. The cited authority of Vanmeld Pty Ltd v Fairfield City Council & Anor is not, in my view, authority for the proposition that, if no assertion is made that the Shire formed the requisite opinion, the Court cannot conclude. Having considered that authority and the legislative framework which applies in this case, I do not accept that it was the legislative intention that, if the relevant opinion is not formed for whatever reason including negligence or ignorance, the obligation to consult does not arise.

127 Another proposition put by the respondents is that, irrespective of the scope of the obligation to consult, if the change in zoning to "Tourist" did not affect the land, there is no pool of people "likely to be affected" and hence it cannot be said that the obligation has been breached. The respondents maintain that there is no evidence to show that the zoning of the land as "Tourist" affected by TPS 20 was a material change from the position under the previous scheme. This argument was principally developed by the Shire. The proposition being put is that TPS 20 did not change the actual use of the land because a comparison of the schemes indicates that what could be done under the old scheme can still be done under the new scheme.

128 The Court was taken to TPS 5 which indicates that the Surfside lots are marked "A" and are therefore said to have an additional use. That conclusion is drawn from the fact that, although the Surfside lots are marked "A" on the plan, the accompanying legend does not include "A", only "A1" which is stated to mean "additional uses". I accept that the "A" is a reference to "A1" because I could find no reference anywhere in the TPS 5 to the meaning of the letter "A". In the legend, areas of "short stay residential" are marked with a light blue perimeter line which is the marking on the more westerly of the two Surfside blocks. Areas set aside for "shopping" are coloured light blue. The more easterly lot bears that colour.

129 According to the legend relevant to appendix 1 to TPS 5, "short stay residential" falls within Residential E. Under the zoning table, that designation allows for the following uses: single dwelling house, caretaker's house, residential building, private hotel, motel - not licensed, caravan park, camping area, chalets and holiday cabins, laundromat, administrative buildings, licensed motel, tavern, licensed restaurant, night club, eating house. The designation, "shopping" falls within Commercial C. Under the zoning table, the categories of use which are permitted either as the sole use of the premises or as an incidental use are caretaker's house, office, radio and TV installation, art and craft studio installation, showroom, open air display, warehouse, car sales premises, caravan sales premises, boating sales premises, service station, roadhouse, laundry and/or dry cleaning premises, laundromat, car wash, art exhibition rooms, market garden sales, other offensive trade, open air display, trade display, service industry, hardware store and take away food outlet.

130 The additional uses under TPS 5 can be found in appendix IV. The additional use for Lot 105 in Dawson Drive, one of the Surfside lots, is petrol sales.

131 Under TPS 5 the zoning of the residential lots was "single residential" which under the zoning table is identified as Residential A. That classification allowed a relatively limited number of uses but includes single dwelling houses and duplexes.

132 The zoning table in TPS 20 identifies all the uses applicable to the use class "Tourist". They include the following "AA" uses: amusement parlour, bed and breakfast establishment, boarding house, boatel, bus station, caravan park and camping grounds, chandlery, chalet development, club, community centre, cottage industry, guesthouse, marina, marine facilities, marine filling station, motel, place of assembly, private recreation, public utility, recreation establishment and facility, residential building, restaurant, rural holiday resort and tourist accommodation. The following "SA" uses are included: child care centre, convenience store, hotel, market, takeaway food outlet, tavern and winery. There is one "P" use; a recreation area.

133 Clause 21 of TPS 20 identifies the relevant terminology in the zoning table. The symbol "P" denotes a use which may be carried out without planning consent. The symbol "AA" denotes a use which may be carried out only with planning consent. The symbol "SA" denotes a use which can only be carried out with planning consent issues after public advertising. Thus, under TPS 20, land with a "Tourist" zoning can be used for a residential building with planning consent.

134 The point of this analysis is that the zoning of "shopping" and "short stay" is much wider than the terms would denote and hence the change of zoning to "Tourist" would have little impact on the use. Similarly, both the single residential zoning under TPS 5 and the "short stay residential" under TPS 20 allow the use of the premises for a residence.

135 The Association's response is to dispute that the zoning of the relevant lots under TPS 20 is no different to that under TPS 5. However, that is not the proposition on which the Shire relies. The Shire does not allege that the zoning is no different, it alleges that the practical effect of the two zonings is largely the same and that many of the former uses of the land would still be available under the new zoning and, in relation to the residential lots, the same use would apply.

136 However, there is one matter raised by the Association in this context which requires consideration. It is said that the effect of a "Tourist" zoning is that the "Statement of Planning Policy No 1 - Residential Planning Codes" ("the R-Codes") which govern the construction of buildings on a site, do not apply. However the Shire's response to that proposition is that the R-Codes have no legal effect independent of the scheme and the R-Codes were not incorporated into TPS 5 other than for the purposes of a Residential R20 zoning. That view would be consistent with the ruling of the Member of the Tribunal on Silverland's application to develop the Surfside lots.

137 On behalf of the respondents it is said that there is nothing arising from the change in zoning which would lead the local government to conclude that there was any need to consult. The uses of the land under TPS 20 were not in any way different from the uses under TPS 5 and there is no evidence that the particular individuals who have provided affidavit evidence would be adversely affected by TPS 20. There being on need to consult, there has been no failure to comply with the provisions because there was no need to consult.

138 Unfortunately, that is not a proposition that has been tested either in practice or in the abstract. Even if I were to accept the proposition, it does not follow that there is no person who is "likely to be affected by the scheme". The consequences of the effect on the land of the scheme may not be immediately identifiable. However, it is not the consequences of the effect on the land which the local government is required to consider. The fact is that the zoning of a person's land has changed and that, of itself, is an effect of the scheme. That proposition applies equally to both the landowner and the adjoining landowner.

139 In the circumstances outlined, I am satisfied that no notification of the persons and of the type I have concluded to be required under s 7(2aa) actually took place. I therefore accept the Association's submission that the Shire failed, in relation to the townsite lots, to make reasonable endeavours to consult the persons likely to be affected by TPS 20 and has thereby failed to meet its obligation under s 7(2aa) of the TPD Act. Further, I am not persuaded that, irrespective of whether there has been compliance with s 7(2aa), the action taken by the Shire with respect to TPS 20 or in any other circumstance resulted in the relevant landowners being aware of the change in zoning to the townsite lots and having an opportunity to make a submission. On that basis, there is no impediment to making a finding of invalidity, if the failure to comply with s 7(2aa) does indeed invalidate TPS 20.

140 I turn now to consider the effect of a failure to comply with the requirement to consult.

141 The Association suggests that the failure to consult renders the scheme invalid because the requirement to consult in s 7(2aa) is mandatory. The mandatory nature of the requirement in s 7(2aa) is also said by the Association to be consistent with the obligation to provide protection to landowners whose rights may be affected, although as the protection is no more than a right to be consulted, it was conceded to be "a thin line of protection". Under s 7(3), a town planning scheme has full force and effect as if enacted by the TPD Act. In my view, it would be odd indeed if invalidity of such a scheme resulted from a failure to observe a right which confers so little.

142 According to the Association, the effect of the declaration as to invalidity is that TPS 5 would be the relevant scheme for the purpose of identifying the applicable zoning of the Yallingup land. However, the request for a declaration of that type has been withdrawn and it is unnecessary for me to comment on that issue.

143 The basis of the Association's submission that the requirement to consult is mandatory, is that the language of s 7(2aa) is that of a mandatory obligation. That proposition is consistent with the terms of s 56 of the Interpretation Act 1984 (WA) which draws a distinction between the use in legislation of the terms "may" and "shall", ascribing to the latter term, when used in conferring a function, the interpretation that any function conferred must be performed.

144 The respondents' position is that it does not automatically follow from a failure to comply with s 7(2aa) that the scheme or any relevant portion of the scheme would be invalid.

145 The case of Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241; (1999) 22 WAR 1 is cited by the Association in support of the proposition that the obligation created in s 7(2aa) is mandatory. In that case, on the pleadings Anderson J was required to consider the effect of the term "shall" in the context of s 7(2) of the TPD Act and the failure by the City of Nedlands to forward to the Minister for approval an amendment to a town planning scheme which had been advertised in accordance with s 7(2)(a). However, in the course of the trial, counsel for the City of Nedlands made the concession that the construction placed on s 7(2) by the plaintiff was correct. The plaintiff's construction was that the use of the term "shall" rendered the provision mandatory and the City of Nedlands was therefore required by s 7(2) to submit the amendment to the Minister once it had been prepared and advertised: (at 11). Consequently, the alternative construction of s 7(2) was not considered. In so far as it is relevant, the alternative construction was not that the provision was in all situations discretionary. The City of Nedlands' construction, prior to the concession, was that the imperative word "shall" only relates to and prescribes the conditions on which an amendment actually proceeded with will obtain the force of law.

146 In Murcia Holdings Pty Ltd v City of Nedlands the proper construction of s 7(2) of the TPD Act was relevant to a cause of action in negligence based on non-performance of a statutory duty; in particular, to the determination of whether the statutory scheme evidenced by s 7 of the TPD Act brought the public authority and a member of the public into a relationship of sufficient proximity to give rise to a duty of care on the part of the authority. In the course of that analysis, Anderson J made the following comment on the scope and purpose of the legislative scheme to make or amend town planning schemes which is primarily contained in s 6 and s 7 of the TPD Act and the Regulations (at 31):

"The object of the legislative provisions authorising municipalities to make and amend town planning scheme is orderly and proper planning within the municipal district. The scope and purpose of the legislation does not include the protection or advancement of the commercial interests of individual landowners or classes of landowners or other classes of persons. The particular provisions of s 7 (2) and of reg 15, reg 17 and reg 18 requiring a municipality which has embarked upon a scheme amendment to take certain steps are likewise not for the purpose of advancing or protecting the commercial interests of those who may be affected by the making of a scheme or by the amendment of a scheme. The provisions of the Act requiring the municipality to submit amendments to the Minister and the provisions of the regulations stipulating the times within which this must be done are 'regulatory directions only': Becker v Home Office [1972] 2 QB 407 per Denning MR at 418H . Even if they are not observed, they do not confer a civil remedy. As was pointed out in O'Connor v SP Bray Ltd, (supra) per Dixon J at 447 - 478' ... an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy'. In my opinion, this legislation does not do so."

147 Further, the TPD Act provides that the scheme takes effect as if enacted by the TPD Act: s 7(3) of the TPD Act. In such circumstances, there is a presumption of procedural regularity: Selby v Pennings (1998) 19 WAR 520. In Selby v Pennings the Court was asked to consider a notice made under the regulations of the Conservation and Land Management Act 1984 (WA), the effect of which was to classify a particular area as a temporary control area. The classification occurred by the Minister for the Environment, acting on the recommendation of a controlling body, publishing a notice of classification in the Government Gazette. The issue of the validity of the notice arose in the context of a criminal prosecution where it was alleged that the area classified did not mirror the area recommended by the controlling body.

148 The Court held that it was open to the Minister to classify an area of land differently to the recommendation as long as the classification was, in substance, "on the recommendation of" the controlling body: per Ipp J (at 526, 527). The resolution of the issue was a question of fact and degree: (at 527). The Court identified the common law presumption of validity to the following effect (at 528):

"It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed."

The common law presumption was also said to be to the same effect as s 43(3) of the Interpretation Act 1984 (WA) which states that it shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed: (at 528). As Ipp J noted (at 528):

"Essentially, the presumption is that the formal requirements of judicial or administrative acts which are good in substance have been met."

His Honour also observed (at 529) that, on any examination of the authorities, it is apparent that the application of the presumption is not dependent on some readily defined principle, but on the peculiar circumstances of each particular case. Ipp J concluded (at 530) that, to displace the presumption of regularity by evidence to the contrary, no burden of proof is imposed even on the balance of probabilities and it is enough if evidence to the contrary can be identified from either the evidence of one party or of the other. The presumption is easily rebutted by evidence that raises a doubt as to whether the condition has been duly performed: (at 532). Ipp J also relied on the decision of Gaudron J in Ousley v The Queen (1997) 192 CLR 69 (at 87) that, generally speaking, the validity of an instrument made in the discharge of an administrative function "may be challenged in collateral proceedings": (at 536).

149 It is clear that neither the common law nor the statutory presumption of validity entitle the Court to presume the existence of the facts which would make an instrument valid. In my view, s 7(3) simply establishes statutory recognition of the force of subordinate legislation. The statutory presumption of regularity is exactly that: a presumption. That presumption can be displaced, as in this case, where there is evidence that the necessary requirements were not in fact met.

150 In Project Blue Sky Inc v Australian Broadcasting Authority (at 390 [93]) the majority deprecate the use of the mandatory/directory distinction and ask whether a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid. This test supports and reinforces the presumption of validity. In Project Blue Sky Inc v Australian Broadcasting Authority) the High Court said (at 97) that what was relevant to determining purpose was public inconvenience. I accept the submissions of counsel that this is a factor which looms large on the facts of this case.

151 When compared with the power of local government to make changes to the status of the land, albeit with Ministerial approval, the right to be consulted is a limited right indeed. However, in my view, one should be very cautious in undervaluing the importance of such rights. When you consider the Act as a whole and the impact of the power to change zoning by implementing a town planning scheme which is a change of potentially significant impact, considerable emphasis and importance should be placed on the rights of landowners to be consulted. An absence of any real consequences when the obligation to consult is breached may be said to be inconsistent with such an emphasis.

152 With respect to the issue of whether it acted in breach of its statutory obligations, the Shire relied on the decision of the NSW Court of Appeal in Vanmeld Pty Ltd v Fairfield City Council & Anor which dealt with s 68(3) of the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act") which contains a power which is analogous to the power conferred on the Council in s 7(2aa) of the TPD Act. Section 68(3) of the EPA Act authorised the Council to make alterations to the draft local environment plan after public submissions have been received and a public hearing has occurred. Alterations were limited to those which the Council "considers are necessary to the draft local environment plan arising from its consideration of submissions or matter raised at any public hearing". The clause under consideration, cl 13, prohibited placing fill in a floodway zone. It was inserted by way of an amendment after the draft local environment plan had been publicly exhibited, public hearings held, a report on the public hearing made and the Council had adopted the recommendations of the public hearing report, including the amendment. However, cl 13 itself was never publicly exhibited. The owner of land affected by cl 13 sought a declaration of the invalidity of the clause. The declaration was sought on the grounds that cl 13 did not satisfy the requirements of s 68(3), that it breached common law rules of procedural fairness, the power to promulgate the local government plan was exercised for an improper purpose or in bad faith, and finally that cl 13 is not authorised by the EPA Act.

153 The Court held that the local government plan satisfied the requirements of the EPA Act, notwithstanding the inclusion of cl 13, and that cl 13 was indeed authorised by the EPA Act. It also held that the power to promulgate the local government plan was not exercised for an improper purpose or was made in bad faith. Nor was it accepted that the Council was guilty of any breach of the common laws of procedural fairness.

154 Meagher JA (with whom Powell JA agreed) considered that because during public hearings there was extensive discussion about flood mitigation and flood management, which led directly to the prohibition of fill in flooding areas in cl 13, and because any interested person could have said all he or she wanted to say on the matter at or after the public meetings, that cl 13(3) was neither surprising nor unexpected and was a valid exercise of the power on the Council: (at 113). Further, Meagher J considered that the process specified in s 68(3) identified the extent to which procedural fairness was to be accorded to ratepayers: (at 113). It was also noted by Meagher J (at 113 - 114) that there was no submission of Wednesbury unreasonableness in the Council's decision: Associated Provincial Picture Houses Ltd v Wednesbury Corporation.

155 Spigelman CJ, who found that there was a failure to accord procedural fairness, reached the same conclusion as the majority with respect to the other grounds of appeal and provided the reasons of the Court on all but the procedural fairness issue. With respect to the issue of validity of cl 13, the appellant submitted that the intention of the Parliament was to invalidate any instrument which failed to comply with the scheme for public notice and exhibition. Before addressing the validity issue, Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council & Anor referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority and the NSW Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 (at 23 - 24) as follows (at 89):

"In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 72 ALJR 841; 153 ALR 490, McHugh J, Gummow J, Kirby J and Hayne J considered the effect on the validity of an exercise of a statutory power of a failure to comply with an aspect of a statutory scheme. Their Honours said (at 859 [91]; 515 [91] [and at 388 - 389 in [1998] HCA 28; 194 CLR 355]):

'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.'

Their Honours went on to accept the analysis in Tasker v Fullwood [1978] 1 NSWLR 20 at 23 - 24, in which this Court rejected the traditional distinction between 'directory' and 'mandatory' requirements and posed the test in the following terms (at 860 - 861 [93]; 515 - 517 [93]):

'A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid ... In determining the question of purpose regard must be had to the language of the relevant provision and the scope and object of the whole statute.'

The approach has long been adopted by this Court and it has now been authoritatively approved in the Project Blue Sky (at 860 - 861 [93]; 516 - 517 [93] [and at 390 - 391 in [1998] HCA 28; 194 CLR 355])."

156 Spigelman CJ noted that the alterations to be effected by local government were limited to those which the Council considered necessary, based on its consideration of submissions or matters raised at the public hearing, and that the trigger to make alterations was, therefore, whether or not the Council "considers" such alterations are necessary. As his Honour observed (at 90):

"The condition precedent to the power is not the fact itself - that is, did the amendment actually arise from a submission or public hearing - but the opinion of the Council that it did so arise: see, eg, Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297. This is a particular kind of jurisdictional fact ... "

157 Spigelman CJ went on to observe that the process by which the Council formed its opinion is not immune from judicial review, but the grounds on which such review must be based are as set out by Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 (at 118 - 119).

158 In Buck v Bavone Gibbs J observed (at 118):

"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. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts ... Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed."

159 Gibbs J also noted (at 119) that the possibility that the authority, acting honestly, might wrongly fail to be satisfied of the relevant matters seemed theoretical rather than practical.

160 In Vanmeld Pty Ltd v Fairfield City Council & Anor, since the appellant did not challenge the formation of the opinion of the Council on any administrative law ground (save with respect to the ground of improper purpose or lack of bona fides) and as the submission that the process miscarried because of the failure to publicly exhibit the amendment was found to be without merit, the ground of appeal based on invalidity was rejected.

161 Having considered the decision in Vanmeld Pty Ltd v Fairfield City Council & Anor and the decisions therein cited, I cannot see how they assist the Shire. It is apparent from the Shire's written submissions that it accepts and relies on the proposition that the formation of the requisite opinion by the Shire that persons are likely to be affected is a condition precedent to the need to make reasonable endeavours to consult. The Shire states that the Association does not assert that the Shire formed the requisite opinion, that it formed an opinion in bad faith or for an improper purpose, or that the opinion otherwise evidences jurisdictional error, or that the failure to form an opinion was so unreasonable that no reasonable Shire could have arrived at it. Consequently, it is said that no basis has been established that the Shire formed the requisite opinion or that its failure to do so was attended by jurisdictional error and as a result it was not necessary to determine whether the consultation procedure adopted was sufficient. With respect, this submission misunderstands both the Association's case and the decision in Vanmeld Pty Ltd v Fairfield City Council & Anor.

162 The importance of the obligation to consult, as emphasised by Lord Morris of Borth-Y-Gest in Port Louis Corporation v Attorney-General of Mauritius (at 1124) also raises the issue of whether the requirement to consult is of such significance that a failure to do so will invalidate the process and the instrument which results.

163 On behalf of Silverland it was submitted that, even if it is considered that a failure to consult would lead to invalidity, there is an issue as to whether there has been substantial compliance sufficient to satisfy the obligation to consult: Hamilton v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 657; (1993) 48 FCR 20 (at 32 - 33) and Tasker v Fullwood (at 23 - 24) (approved in Project Blue Sky Inc v Australian Broadcasting Authority (at [93])).

164 In Tasker v Fullwood the Full Court of the Supreme Court of NSW considered the situation where a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions and concluded (at 23 - 24):

"From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case ([1977] 2 NSWLR 955 at 963 et seq). (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont ([1977] 2 NSLR 211 at 220). (4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirements: Victoria v The Commonwealth ((1975) [1975] HCA 39; 134 CLR 81 at 179, 180). (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins Store Pty. Ltd. case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation is also described as directory in its terms: Victoria v The Commonwealth."

165 Silverland submitted that, whilst a failure to comply with the requirements of s 7(2aa) may entitle a party to seek orders requiring compliance during the period prior to approval by the Minister, the expression in s 7(3) is inconsistent with an intention to invalidate the scheme in the event of a failure to comply with the consultation requirement and the Act should be so construed: Project Blue Sky Inc v Australian Broadcasting Authority (at [91] - [93]). Again, I see no inconsistency between the terms of s 7(3) and invalidating the scheme where there has been non-compliance with a requirement. Neither do I accept that Project Blue Sky Inc v Australian Broadcasting Authority is authority for that proposition. It is also said that invalidity for the scheme as a whole is a most unlikely consequence for any failure to consult in respect of any part of the scheme. With that proposition, I agree.

166 The Shire relies on the fact that, although the consultation is required to be undertaken by a local authority, the approval of the town planning scheme or amendment is a matter for the Minister: see s 7(2a) and s 7(3). That factor is said to militate against a finding that Parliament intended that a breach of s 7(2aa) of the Act by a local authority should invalidate the actions of the Minister. The case of Mount Barker Properties Ltd v District Council of Mount Barker [2001] SASC 249; (2001) 80 SASR 449 (at [48] - [53]) per Debelle J is said to support that proposition.

167 In that case, the South Australian Supreme Court was asked to consider the validity of a Plan Amendment Report ("PAR") which had been prepared and adopted by Council, forwarded to the Minister with a request it be released. The Minister authorised the release of PAR and permitted Council to undertake consultation with government departments and agencies. The Council advertised the release of the PAR for consultation. The plaintiff opposed the PAR on planning grounds and also asserted that the Council's actions were invalid because of non-compliance with a provision of the relevant Act which placed a number of requirements on the Council when considering an amendment to a plan such as PAR. The issue before the Court was whether any failure to comply with those requirements caused invalidity of the PAR. Debelle J adopted the approach identified in Project Blue Sky Inc v Australian Broadcasting Authority. The Court concluded that the distinction between mandatory and directory provisions had proved elusive and had outlived its usefulness. The better test for determining the issue of invalidity required the Court to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid: (at [92], [93]), see Mount Barker Properties Ltd v District Council of Mount Barker (at 468 [48]).

168 Debelle J noted that there were some provisions in the relevant section where non-compliance might result in invalidity because it is an essential part of the process. Two examples were given, the requirement for public consultation being one of them. However, the Court considered that there was no need to express a final view on those provisions as there has been compliance with them: (at 468 [49]). Debelle J identified the factors which suggested to him that Parliament did not intend that a breach of the section would result in invalidity. They were (at 468 - 469 [50]):

(a) The extent of Ministerial control. In particular, the fact that it is the Minister who decides whether the proposed amendments will be made.

(b) The Minister's extensive powers of control over the process including the power to alter the proposed amendments both before and after the process of public consultation.

(c) The fact that the Minister has power to approve a PAR, notwithstanding that it does not comply with certain statutory requirements as to content. It is said that this fact, coupled with the Minister's extensive control over the whole process is a particularly strong pointer. It indicates that Council's compliance with its obligations is not an essential prerequisite to the Minister's assessment.

(d) The fact that the statement of intent is a document prepared to assist the Minister in making the assessment required points to the conclusion that the Minister has a wide discretion whether to approve the proposed amendment, notwithstanding the Council's failure to comply with any of its obligations. The only restraint is that the Minister act within power.

(e) None of Council's obligations could be regarded as an essential prerequisite to the process of public consultation or the Ministerial assessment.

(f) If failure by the Council to comply with any of its statutory obligations were to result in invalidity, serious delays could occur in the process of amending a development plan, which is an essential document in the process of assessing development applications.

169 In Mount Barker Properties Ltd v District Council of Mount Barker, Debelle J also concluded that where Parliament does not intend non-compliance to result in invalidity, substantial compliance is all that is required (at 470). No further comment is made on whether Debelle J meant substantial compliance with all the obligations or compliance with a substantial number of them. To my mind, the latter interpretation is more consistent with his Honour's reasoning.

170 I accept that where approval is a matter for the Minister, this is a factor to be considered, particularly because the Shire is required to forward with the copies of the scheme "all documents in support" (reg 13(2)) and any submissions in response to advertisement of the scheme (reg 18) and also because the Minister has the power to require modification of the scheme or amendment before it is resubmitted and the power to refuse to approve the scheme or amendment (see s 7(2aa)). A Minister would be entitled to raise with the Shire the issue of consultation with affected persons and to refuse to approve the scheme unless the necessary consultation has been made. The difficulty with reliance on the role of the Minister in protecting the right to consultation of those affected by the proposed scheme or amendment, is that it may not be immediately apparent whether or not consultation has taken place.

171 Silverland also relies on the decision in TVW Enterprises Ltd v Duffy & Ors (No 2) in which the inquiry being undertaken was held not to be invalid despite a failure to consult in respect of the notice establishing the inquiry. In reaching this conclusion, the Court had regard to the overall process established by the Act of which the giving of the notice was a part, the consequences of invalidity, and whether the invalidity would promote the main object of the legislation: (at 182 - 183).

172 In Darling Casino Ltd v Minister for Planning reference was made to the decisions in Attorney-General v J N Perry Constructions (1961) 6 LGRA 385 and Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd & Ors [1977] 2 NSWLR 955 with respect to which the following observation was made.

173 Both Lizelle and Perry were cases where the lack of consultation might have worked an injustice or inconvenience to holders of development consents, whose contents would thereby be struck down in circumstances where they had no control over or knowledge about the consultation process.

It is this very consideration which is at the heart of any retrospective determination of validity of a town planning scheme.

174 The Association distinguishes the Project Blue Sky Inc v Australian Broadcasting Authority case on the basis that there is a clear distinction between a discriminatory determination by a Tribunal in relation to the requirement for 50 per cent Australian content on television and a matter of substantive importance such as a mandatory obligation to give landowners notice of circumstances that affect their proprietary rights. To my mind, that is a distinction of fact more than principle. Further, to suggest that one matter is of substantive importance and the other is not, may well be a matter of perspective.

175 The principles which senior counsel for Silverland has identified from the authorities are these:

"(a) there would be a grave injustice to land owners if every consent to development could be challenged as to its validity on the ground that there had been a failure to take reasonable endeavours to consent prior to Ministerial approval and publication of the Scheme;

(b) those who would be affected by invalidity had no control over the process undertaken by the local authority;

(c) the overall process for enactment of a Scheme requires the approval of the Minister who may review the process followed by the local authority;

(d) the Minister has express power under s 9 of the Act, by regulation, to specify the procedure to be observed by the local government authority in relation to notices and other matters required in connection with the preparation or adoption or approval of a scheme;

(e) the alleged failure to consult relates to a small aspect of the Scheme as a whole. The evidence, even if accepted as showing a failure to take reasonable endeavours to consult as to the zoning for a small number of lots in Yallingup does not establish a substantial failure to comply with the obligation to make reasonable endeavours to consult in relation to the Scheme as a whole; and

(f) section 7 (3) of the TPD Act in expressing the requirements to be satisfied for the Scheme to take effect as if enacted as part of the Act only refers to the requirements of consent of the Minister and publication in the Gazette. If it was intended to condition the validity of the Scheme or compliance with other matters then it would be expected that they would be expressed in s 7(3)."

I consider this summary to encapsulate the significant factors in the resolution of the validity of TPS 20.

176 Having considered the competing submissions and the authorities to which I have referred, I have formed the view that the decision in Project Blue Sky Inc v Australian Broadcasting Authority sets out the approach to be taken when a statutory obligation has not been complied with, which is to look at the legislative intention in the context of the Act. In the circumstances of this case I am not persuaded that the intention of the legislature was for a town planning scheme to be invalidated as a result of a failure to consult persons likely to be affected by the scheme. I state that as a matter of principle rather than an observation on the consequence of failing to consult only some of those persons likely to be affected by a town planning scheme. In this case, however, I consider the correct interpretation of the statute has the effect of overcoming a potentially disastrous consequence of an omission limited to a very small number of people.

177 I do not believe that the conclusion I have reached undermines the importance of consultation. The obligation remains, is the subject of considerable authority on its importance, and can be enforced. What it does do is recognise that the enormity of the consequences of invalidating an implemented town planning scheme outweighs the desire to protect the right to be consulted by invalidating that which takes place without it.

178 In view of my determination that the failure to consult does not have the effect of invalidating TPS 20 or any part of it, it is unnecessary to deal with the issue of whether that part of the scheme which changed the zoning of the lots the subject of the application may be severed from TPS 20. However, if I am found to be wrong in my conclusion on the validity issue, and as the matter has been fully argued, I propose to address the issue in any event.

179 On behalf of the Association it is said that the failure to comply with s 7(2aa) by consulting the owners and adjoining landowners of the relevant lots is fatal to the purported change of zoning of those lots. The scope of the order sought is of significance. TPS 20 dealt with the Shire as a whole: Silverland Pty Ltd v Shire of Busselton [2004] WATPAT 139 (at [44]). Only a small part of TPS 20 dealt with the Yallingup townsite, as can be seen from the map provided to the Court. Further, the zoning of the majority of the lots in the Yallingup townsite was unchanged by TPS 20. The Association seeks a declaration that the purported zoning of the Surfside lots and the residential lots as "Tourist" is invalid. It does not seek a declaration that the part of TPS 20 affecting the townsite lots is invalid, although that would necessarily be the effect of the declaration sought. It expressly disavows the effect of invalidating TPS 20 as a whole.

180 On behalf of the Association it is said that the basis of the application is that the failure to comply with s 7(2aa) related only to the owners of those lots with respect to which there is affidavit evidence and not in relation to any other area covered by the scheme and, consequently, the Court was entitled to make a declaration that the zoning is not valid for that portion of the scheme. On that basis invalidity would not arise with respect to all of the townsite lots. To my mind, the fact that the evidence relates only to a failure to consult owners of some of the land in the scheme does not, of itself, result in invalidation of only that part of the scheme. Further there is flow on effect from invalidating only that portion of TPS 20 which changed the zoning of the townsite lots. TPS 20 also repealed the former scheme, TPS 5. If only that part of TPS 20 changing the zoning of the townsite lots were to be severed, the consequence is that TPS 5 remains repealed and the relevant lots would have no zoning at all. An amendment or a new scheme would be required to overcome this deficiency. I consider such a result militates against a conclusion that partial invalidity is available. I also believe it impacts on the discretion to grant the relief sought,

181 It is said that whether, in respect of the balance of the scheme, the Shire has substantially complied with its obligations, is a separate and distinct issue to the lots in respect of which declaratory relief is sought. The Association's proposition is that when s 7 of the Interpretation Act 1984 (WA) is read with s 7(3) of the TPD Act, the power to sever becomes evident and the invalid portion can be severed form the scheme and does not invalidate it.

182 As counsel concedes, that proposition is contrary to the position of the member of the Tribunal who considered that "it is the invalidity of TPS20 that gives rise to the invalidity of the zoning of the subject land" (at 24 [46]).

183 The Association relies on the decision of Pearlman J in Darling Casino Ltd v Minister for Planning (at 18 - 19). Pearlman J held that the Court may sever the zoning of relevant lots unless satisfied that the scheme, "with the valid portion omitted, is so radically or substantially different a law as to the subject matter dealt with by what remains, from what it would be with the omitted portions forming part of it, as to warrant a belief that the [Shire] intended it as a whole only" (at 19).

184 In that case, Pearlman J referred to the decision of Ormrod LJ in Dunkley v Evans [1981] WLR 1522 (at 1524 - 1525), in particular the reference to the following extract from the decision in Olsen v City of Camberwell [1926] VicLawRp 9; [1926] VLR 58 (at 68):

"If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended it as a whole only, or in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail."

Ormrod J concluded that he could see no reason why the "blue pencil test" should not apply to sever an invalid portion of a piece of subordinate legislation from the valid portion (at 1525).

185 The Association's position is that, if the townsite lots were to be excised from TPS 20, the scheme would not be radically or substantially different. Counsel for the Association also noted that the test identified in Olsen v City of Camberwell is to the same effect of that identified by Dixon J in Andrews v Howell [1941] HCA 20; (1941) 65 CLR 255 (at 281). However, in both cases the Court was dealing with a situation where s 32 of the Interpretation Act 1987 (NSW) applied.

186 Counsel for the Association concedes that the facts of the case are not entirely consistent with the facts of this matter but submits that the test referred to above is the test to be applied. The Association submits that I should conclude that, if an objection had been raised by those consulted which led to the proposed changes in the Yallingup townsite not going ahead, the balance of the draft scheme would have been unaffected and still would have received Ministerial approval. It is said that this conclusion may be reached by drawing an inference from the available evidence; in particular, the fact that the townsite lots are a small part of a small town in the larger area covered by TPS 20. I have some reservations about whether the evidence before me is sufficient to allow such an inference to be drawn. However, for the following reasons, it is unnecessary for me to form a concluded view.

187 Another decision relied on by the Association is Ibbotson v Chaney, unreported; SCt of WA; Library No 980278; 22 May 1998 which addressed the doctrine of severability in relation to warrants issued in excess of power. It is said by the Association that, in Ibbotson v Chaney, White J considered and applied the test identified by Dixon J in Andrews v Howell (at 281) and concluded that severance was available. In Ibbotson v Chaney, the Court dealt with a search warrant issued under s 18(2) of the Royal Commissions Act 1968 (WA). The section required that authority to execute the warrant be conferred on a named person or named persons. The warrant under consideration conferred authority on four named officers and "all Officers of the Anti-Corruption Commission". In reaching the conclusion that the reference to the unnamed officers could be deleted without invalidating the warrant, White J accepted the decision in Parker v Churchill [1986] FCA 88; (1986) 9 FCR 334 per Jackson J that a search warrant, being an order of a justice, is divisible: (at 350). Therefore, the decision of White J was made in the context that a portion of the instrument under consideration could be severed. The decision then was whether in the circumstances it should be severed. On that basis, Ibbotson v Chaney is no authority for the proposition that parts of a planning scheme may be severed. Further, White J did refer to the decision in Andrews v Howell only insofar as it formed a part of an extract from the judgment of McHugh JA in Peters v Attorney General for NSW (1988) 16 NSWLR 24 (at 41 - 42) which held that the principles in Andrews v Howell also applied to a subordinate instrument such as a search warrant.

188 In Peters v Attorney General for NSW McHugh J adopted the principle in Parker v Churchill and concluded that the New South Wales Supreme Court should follow that and related decisions. However, McHugh J went on to conclude that it was not possible to sever a warrant where the invalid provision forms part of an inseparable context or would operate differently or produce a different result from that which was intended. It is this test which was applied by White J in Ibbotson v Chaney in reaching his conclusion that an offending portion of a warrant could be excised: (at 2 - 3).

189 In the judgment of McHugh J in Peters v Attorney General for NSW, the reference to the decision in Andrews v Howell is made in the context of the statement that a warrant is an instrument for the purposes of s 32 of the Interpretation Act 1987 (NSW). The decision in Andrews v Howell referred to the effect of s 32 on a regulation and hence on a warrant.

190 For these reasons, I do not consider that the decision in Ibbotson v Chaney assists in the resolution of the issue before me.

191 Reliance is placed by the Shire on the decision of the High Court (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) in Harrington v Lowe (1996) 190 CLR 311 (at 328) which set out the position on severance at common law:

"As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be." [italics added].

192 However, it is once again significant to note that Harrington v Lowe was a case of subsidiary legislation, in that case rules of court, which was said to be ultra vires the Act that authorised the making of rules. In that case it was also noted that there is no distinction in the application of the common law principles between statutes and delegated legislation: Harrington v Lowe (at 328 - 329) footnote (50) referring to the decisions in R v The Commonwealth Court of Conciliation & Arbitration; Ex parte Whybrow & Co & Ors [1910] HCA 33; (1910) 11 CLR 1 (at 26 - 27) and Olsen v City of Camberwell (at 68 - 69).

193 I have formed the view that the decisions in Andrews v Howell and Darling Casino Ltd v Minister for Planning are automatically applicable to a town planning scheme made under the TPD Act. The basis of that conclusion is the inclusion in s 32 of the Interpretation Act 1987 (NSW) of what has been described as "a doctrine of severability": (at 18). Section 32(2) of the Interpretation Act 1987 (NSW) provides generally that if any provision in an instrument would be construed as being in excess of power, it shall be a valid provision to the extent to which it is not in excess and the remainder of the instrument shall remain unaffected. The precise wording is as follows:

"(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made."

194 The Shire submits that, as a gazetted town planning scheme is deemed by s 7(3) of the TPD Act to have been enacted by the TPD Act, s 7 of the Interpretation Act 1984 (WA) applies. Section 7 is in the following terms:

"7. Written laws to be construed subject to State's legislative power.

Every written law shall be construed subject to the limits of the legislative power of the State and so as not to exceed that power to the intent that where any enactment thereof, but for this section, would be construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power."

It can be seen that s 7 does not contain the express reference in s 32(2)(b) of the Interpretation Act 1987 (NSW) that the remainder of the instrument remains unaffected.

195 With respect, I do not consider this provision to be relevant to the issue at hand. It addresses validity in terms of the scope of the power to legislate rather than whether certain legislative requirements are met before legislation is enacted.

196 I consider the following conclusion reached by Pearlman J in Darling Casino Ltd v Minister for Planning is of application to a town planning scheme made under s 7 of the TPD Act such as TPS 20 (at 19):

"It will be apparent from these decisions (and from s 32(2) of the Interpretation Act) that the question of severance involves a question of excess of power. One part of an instrument is intra vires, and another part is ultra vires. The doctrine operates, in the particular circumstances which the authorities lay down, so that the ultra vires portion can be severed and the intra vires portion preserved. But that is not the question here. Rather, the question here is an alleged lack of power to make the whole instrument by reason of a failure to comply with the consultation provision in the statute. It is not the case that the Minister could have made [the planning policy] with respect to the Pyrmont Power Station site, and could not have made it with respect to any land outside that land. Properly exercised, he could have exercised the power with respect to both portions of land, but, if improperly exercised, he lacked power in respect of both. For that reason, I am of the opinion that, if it be the case that [the planning policy] is invalid, it is invalid in total and no part of it can be severed from the remainder."

In my view, this statement provides a proper basis on which to distinguish the authorities that authorise excision of that part of a statute that is ultra vires.

197 A further issue said to undermine the Association's position in this issue is the nature of zoning impact of TPS 20. Section 7 of the TPD Act is not a process to achieve individual planning outcomes other than as part of the whole scheme. That is not to say that a town planning scheme cannot cover a specific area. However, even a scheme covering a specific area cannot be construed as individual schemes relating to the lots within that area. The statutory framework is not, in my view, consistent with a construction that the nature of a town planning scheme is a compilation of individual changes with respect to specific lots or even specific areas within the whole of the area covered by the scheme. It is for that reason that it is technically inapt to describe the effect of TPS 20 as a rezoning of the townsite lots. If the relevant steps are not complied with it is the scheme which is affected, not any portion of the scheme to which the omission relates. The requirement to consult relates to the scheme as a whole and if the failure to comply with the requirement to consult with those affected by the scheme affects validity, it is the validity of the whole of the scheme which is affected.

198 The Shire also raises the issue of the interdependence of the terms of the scheme. It is said that the evidence does not allow the Court to draw the conclusion that one can excise a certain part of the scheme without affecting another part of the scheme. I accept that to be the case. The fact that the relevant lots are part of a small and separate area of land rezoned under the scheme, within a small and separate area of a much larger area covered by the scheme can be misleading. The fact is there is no evidence before me to allow me to conclude that there will be no impact on the balance of the scheme. By way of example, the zoning of areas within large areas sometimes reflects the creation under a planning scheme of a "corridor" of land of the same type, often rural, although I appreciate that this is not the situation here. Further, if it were the case that there had been consultation with the one remaining owner of the residential lots there would be a tourist zoning within a group of single residential lots. For these reasons I would not be prepared to assume that excision of the relevant lots from the scheme would not impact on the balance of TPS 20.

199 On behalf of Silverland the point is made that the Association's characterisation of the process of approval of the scheme as a rezoning of the land is misconceived. Silverland maintains that TPS 20 does not effect a zoning change to a particular lot, consequently, the Association's claim, if upheld, could only lead to invalidity of the scheme as a whole: see Project Blue Sky Inc v Australian Broadcasting Authority (at [91], [93])

200 Although the result of TPS 20 coming into effect is that the zoning of the townsite lots has changed, I accept that it is not the case that the process can properly be described as a rezoning of those lots or of each individual lot. If it were a rezoning exercise then a failure to meet the statutory requirements of that process would invalidate that particular exercise. However, in this case, what has occurred is that the scheme under which the townsite lots were previously zoned has ceased to have effect. Under TPS 20 the zoning of those lots and of other areas covered by the scheme is different. That change in zoning has come into effect by reason of the implementation of the scheme as a whole. The practical outcome may be the same but the process is quite different. Invalidity of that change in zoning will only come about where the scheme under which it was made is invalidated.

201 On that basis I consider that it is only the invalidity of the scheme as a whole which has the effect of invalidating the relevant portion and which would justify making the declaration sought. However, as I have indicated, I do not consider that the scheme is invalidated as a result of the Shire's failure to consult in accordance with s 7(2aa) of the TPD Act.

202 For these reasons I consider that it is neither possible nor appropriate to sever from the scheme the lots with respect to which the failure to consult has been established to apply.

203 If it were the case that the circumstances set out in the declaration sought had been established, the step would be to consider whether I should exercise my discretion to grant that relief. The Shire places emphasis on the fact that the Association has not deposed that it was unaware of the making of the scheme, much less made any attempt to explain its delay in seeking prerogative relief with respect to a scheme which has been in operation since 7 September 1999. Indeed, on the evidence available, the Association could not assert that it was unaware of the scheme.

204 There are a number of factors which would impact on the exercise of the discretion to grant declaratory relief in this matter. On behalf of the Association I am asked to consider the impact on the landowners of the zoning change effected by TPS 20. With respect to the impact on the residential lots of the zoning change to "Tourist", it was submitted that TPS 20 cl 43(1) provides that people living in a tourists zoning can only live in the accommodation for three months in any 12 months. As the owners of three of the residential lots are permanent residents, they would be in breach of TPS 20 by residing in their own homes. Although these owners also own other properties, their property in Yallingup is their principle place of residence.

"No person shall occupy a residential unit, chalet, caravan, camp or any other form of tourist accommodation for more than a total of 3 months in any one 12 month period."

206 In my view, the terms "unit", "chalet", "caravan" and "camp" are qualified by the phrase "any other form of tourist accommodation". I consider that a change in zoning to tourist would not operate to transform a private residence into a form of tourist accommodation. On that basis, there would be no effect on the three owners of the residential lots unless they were to turn their residence into tourist accommodation by renting out the property.

207 The Association submits that Silverland put before the Tribunal the evidence of its consultant who was engaged to oversee and coordinate the approval task associated with the development. The evidence of the consultant was that "the proposed development is not "group housing" but a "tourist accommodation". Implicit in that statement is that, if the land was not validly zoned tourist, the proposed development could not have been approved. As Silverland relied on this evidence it must be the case that it accepts the evidence. I accept that the change of zoning is an affect on the landowners and adjoining landowners of such significance as to justify granting declaratory relief if invalidity of the scheme were established.

208 However, it is because zoning of land is an issue of such significance, that, in my view, the failure to join all relevant landowners as parties to the action, or to otherwise bind them to the outcome, is such as to preclude the making of a declaration of invalidity without giving them the opportunity to be heard: see John Cooke & Co Pty Ltd & Anor v The Commonwealth & Ors; Field & Ors v The Central Wool Committee & Ors [1922] HCA 60; (1922) 31 CLR 394 (at 410). Further, I have reservations about whether an association of this type has standing to seek the type of relief sought in this action. However, in view of the conclusion I have reached, it is unnecessary for me to decide this issue.

209 The Shire submits that relief should be refused on discretionary grounds. The Shire relies on the proposition that declaratory relief will not be granted where a declaration will produce no foreseeable consequences for the parties: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 (at 581 - 582); JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432 (at 436 - 437). It is said that, unless the Association's application for a writ of certiorari is successful, declaratory relief would serve no purpose as Silverland's development approval would remain in force. I accept that to be the case.

210 In dealing with the Association's submission that the failure to consult prejudices the existing land owners, the Shire relies on the fact that TPS 20 does not create a material change to the Surfside land. The Court was referred to cl 91(1) in Pt 10 of TPS 20 which deals with non-conforming uses as follows:

"If, at the gazettal date, any land, building or structure is being lawfully used for a purpose not permitted by the provisions of the Scheme (hereinafter called a 'non-conforming use') or if any land is built on or any building or structure is built in a manner not permitted by the Scheme, such land, building or structure may continue to be used for that purpose or in that manner."

Under cl 91(2) any previously approved development may also be carried out.

211 Counsel for the Shire maintains that the non-conforming use runs with the land and a change of ownership would not remove the right to continue with the non-conforming use. Consequently, on the Shire's submission, the owners of the townsite lots are not required to comply with the three month residency requirement if, prior to TPS 20, the owner lived in the property on a permanent or semi-permanent basis. Those owners would be entitled to comply with either zoning, although once a change was made, the non-conforming use could not be resumed. This is apparent from cl 92 which provides that if the non-conforming use of the land is discontinued for 12 months or longer, or the use is changed, then no person is thereafter entitled to revert to the non-conforming use.

212 However, cl 91 would not cover the situation referred to by Mr Brearley whose desire was for two of the properties owned by him and his wife, which adjoin the property in which they live, to be transferred to his two children so they might live in them on a permanent basis. As the properties are currently rented out, there may be no non-conforming use to be protected by cl 91(2), depending on the nature of the occupation of the premises by the tenants.

213 Counsel for the Association maintains that all parties affected have provided affidavits to the Court. However, as I have indicated, the owner of one of the residential lots has not filed an affidavit. It is apparent that I am called upon to invalidate only part of the lots affected by the scheme. As I have indicated, the result would be that some adjoining lots would have different zonings. To my mind, that factor weakens the Association's argument that the relief sought should be granted.

214 In my view, each of these matters would justify refusal of the relief sought. Collectively, in my view, they lead inevitably to the conclusion that the relief sought should not be granted.

215 For these reasons I have reached the conclusion that owners of the residential lots and owners of adjoining land, who were entitled to be consulted by s 7(2aa) of the TPD Act, were not consulted as required by that section. However, in my view that fact does not lead to invalidity of the scheme in whole, or in part. Even if the failure to consult invalidated the change in zoning of the townsite lots, I consider that the part of TPS 20 dealing with townsite lots cannot be severed from the scheme itself.

216 Even if I had drawn a contrary conclusion, there are a number of factors which lead me to question whether I should exercise my discretion to grant the relief sought. Despite the fact that the basis of the application is a failure of the Shire to consult, the applicant for relief was actually consulted. Further, as I have said, it has not been established that there was any failure to consult the owners of the Surfside lot on which the development is to be constructed. There has also been a significant delay in bringing this application.

217 The relevant date from which the period of delay falls to be assessed is, in my view, the date TPS 20 came into operation. The greater the length of that period the greater is likely to be the extent of any personal or financial inconvenience arising from a ruling of invalidity. On that basis, even if I were persuaded of the merits of the Association's argument on the invalidity issue, I would not be minded to grant the relief sought. The consequences of doing so at this late point have not been identified but, in my view, are sufficiently obvious to be taken into account without the need for any direct evidence on this point. In particular, because the effect of granting relief is to remove from the relevant landowners the benefit of a "Tourist" zoning and leave the land without a zoning category, I would not be prepared to grant the declaratory relief without those landowners affected by any declaration of invalidity being before the Court as parties.

218 As I have indicated, even if it were appropriate to make the declaration sought, I would not be minded to exercise my discretion in favour of granting that relief.

219 I would dismiss the application for declaratory relief.

5. The Association's application to be joined as a party

220 The order nisi for a writ of certiorari is, in effect, the mechanism by which the Association seeks to appeal the decision of the President of the Tribunal to dismiss its application for a review ("the second review"). The review sought was of the decision of the member at first instance to refuse its joinder application. As I have noted when referring to the background relevant to this matter, the initial application was to receive or hear submissions and was also the subject of an unsuccessful application for review ("the first review"). The Association maintains that a writ of certiorari is the only way that the decision of the President on the second review can be appealed. This situation is said by the Association to arise from the absence under any relevant legislation of a right of any person other than a party to a proceeding to appeal a decision of the Tribunal.

221 The Shire contests the proposition that a writ of certiorari (in this case together with an application for declaratory relief) is the only way that the Tribunal's decision can be reviewed and asserts that another avenue was open to the Association. Before attempting to resolve this issue it would be helpful to identify the statutory framework which applied at the time of the hearings and of the applications for review.

222 The relevant legislation at all stages of the hearing of the case in the Tribunal was the TPD Act. Division 4 of the TPD Act deals with the proceedings of the Tribunal. Division 4 is found in Pt V which deals with appeals. Section 47 provides a right of appeal by a person to the Tribunal, if a right of appeal is conferred on that person by the TPD Act or any town planning scheme under the Act (subs (1)(a)), any specified Act (subs (1)(b) - (i)) or any other written law (subs (1)(j)). The appeal is commenced by giving notice, including the grounds of appeal, to the persons and bodies prescribed: s 48. The Town Planning Appeal Tribunal Rules 2003 (WA) (then applying and since repealed) ("the Rules") provides that the parties are to specify the grounds of appeal: r 7 and r 10. Section 51(2) confers on a party the right to present its case, inspect documents and make submissions. Thereafter, subject to an exception to which I will refer, the relevant statutory provisions at all times refer to "parties" to the proceeding. A party, in relation to an appeal is defined in s 2 of the TPD Act to include the appellant, the person who made the decision or direction appealed against, and any person joined as a party to the appeal by the Tribunal.

223 Section 62 of the TPD Act is in the following terms:

"The Tribunal may receive or hear submissions from a person who is not a party to an appeal in respect of the appeal if the Tribunal is of the opinion that the person has sufficient interest in the appeal."

It can be seen that the TPD Act empowers the Tribunal, on an appeal, to receive or hear submissions from a person who is not a party. That power is conditioned on the Tribunal forming the opinion that the person has a sufficient interest in the appeal. The term "submissions" is not defined and hence should be afforded its ordinary meaning.

224 It is apparent from this summary of the relevant statutory provisions that a person who is not a party is not entitled to adduce evidence, cause witnesses to be summonsed, inspect documents, apply for the hearing to be conducted in private, to have the same protection and immunity as in the Supreme Court and nor does his or her representative: see s 51(2), s 51(4); s 55(2) and s 55(3); s 59. In addition to these matters, s 58 deals separately with the rights of a party, and the rights of a person making submissions, to be represented: subs (1) and subs (2). Examples of such differences abound.

225 I therefore accept the submission of the respondents that the TPD Act distinguishes, in a number of ways, between a party to an appeal and a person with a sufficient interest who is entitled to make submissions.

226 The TPD Act contains no express power to join a person to proceedings in the Tribunal. On at least one occasion the Tribunal has relied on the procedures of the Tribunal, together with the definition of "party", including as it does reference to "any person joined as a party to the appeal", to support a conclusion that it has the power to join an applicant as a party to an appeal: Shire of Augusta-Margaret River v Gray & Anor [2005] WASCA 227 (at [16]). Section 51(1) relevantly provides that in the performance of its functions the Tribunal is to deal with each appeal with as little formality and technicality, and determine each appeal with as much speed, as the requirements of this Act, the regulations and the rules and a proper consideration of the matter before it permit: s 51(1)(e). The Tribunal is also empowered to deal with appeals, and receive submissions and representations in relation to any appeal before it, as it thinks fit: s 51(1)(f). It is this "relaxation" of the more usual procedural requirements, together with the specific reference to a person being joined as a party to the appeal, which is said to allow joinder.

227 As to the right to further review a planning decision, the determination of the Tribunal constituted without a member who is a legal practitioner may be reviewed by the Tribunal constituted by the President, providing the matter for review involves a question of law: s 66(1). A review by the President can be commenced by application made under s 66(3) or may be of the President's own motion. Under s 66(3) the application for review is to be made by a party to the appeal. As I have indicated, the definition of "party" in s 2 includes a person joined as a party but does not extend to someone given the right to be heard under s 62. Nor does it include an unsuccessful applicant to be joined.

228 In the matter before me (Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165) the application for review was made by the Association, notwithstanding it was not a party in the proceeding. The Association's standing to make that application was addressed by the President at the outset. The President relied on the decision of the Full Court in Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen [1999] WASCA 47; (1999) 21 WAR 158 where it was held that a person who applies for a particular status where there is a right of review should be treated as having that status for the purpose of availing themselves of such a right of review: per Malcolm CJ (at 188 [116] - [120]). The Tribunal concluded that, for the purpose of the application under s 66, the Association was to be treated as a party: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165 (at [11]). Although the factual circumstances in Ex parte Cohen are not on all fours with this case the principal there stated has the benefit of fairness. It is also consistent with the view, as reflected in many statutes conferring on a tribunal or other body a right to affect a person's interests, that there should be a right to review a decision against that person's interests.

229 Section 67 of the TPD Act provides that a person aggrieved by a direction, determination or order of the Tribunal in proceedings to which the person was a party may appeal to the Supreme Court on a question of law. The issue which then arises is whether the principle enunciated by Malcolm CJ in Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen (at [120]) applies to an appeal to this Court. The reasoning of the Court in that case is not based on any statutory provision and is, in my view, of general application to any right of review of a determination affecting the status of the applicant.

230 That a party should be entitled to avail itself of all rights of review provided under a statute is not a matter of dispute. However, there may well be public policy reasons for a legislative limitation on the rights of non-parties to appeal. Where a non-party is entitled to avail itself of one right to review what is, of itself, a review, it is not difficult to identify the rationale behind precluding any further review in the Supreme Court. However, one would expect a legislative intention to limit any further right of appeal to be clearly stated. In Shire of Augusta-Margaret River v Gray & Anor the Court of Appeal dealt with an appeal by a local council from the decision of the President of the Tribunal refusing its application under s 67 of the TPD Act to be joined as a party to an appeal. McLure J (with whom Le Miere J agreed on this point) held that, as the Shire was not a party, it had no right of appeal under s 67 and the appeal was incompetent: (at [47]). If the grounds for the grant of a writ of certiorari are made out, there exists a right of appeal to affect the exercise of the discretion to grant that relief.

231 Even if an alternative remedy did exist, the jurisdiction of the Supreme Court in relation to prerogative writ applications would not thereby be excluded or modified although, again, it may well influence the exercise of the discretion to grant that relief: see Gudgeon v Black, Ex parte Gudgeon (1994) 14 WAR 158 per Malcolm CJ (at 177, 178, 188).

232 To complete the statutory picture, the State Administrative Tribunal Act 2004 (WA) ("the SAT Act") came into operation on 23 November 2004 and provided for jurisdiction in relation to matters contained in enabling Acts including the TPD Act. Under the SAT Act the right to appeal is limited to parties to a proceeding: s 105 and s 94. A party is defined in s 36 to include a person joined under s 38 and also a person intervening in the proceeding. Section 38 confers on the Tribunal the power to join a person as a party to the proceedings and sets out the criteria to be applied. Section 37(3) confers a power to give leave for a person to intervene in a proceeding on conditions. The combined operation of these provisions is that a person joined, and an intervener, are both parties for the purposes of the right to appeal in s 105. Again, there is no specific reference to an unsuccessful applicant for joinder.

233 The Court in Shire of Augusta-Margaret River v Gray & Anor was also called on to consider the right of an unsuccessful applicant to appeal to the Supreme Court under the SAT Act because, in that case, the appeal was instituted after the Act came into effect. McLure J considered the terms of s 167 of the SAT Act, the transitional provision affecting matters transferred to SAT from the Tribunal, and concluded that, although the matter was a devolved matter which fell to be considered by SAT, the SAT Act is silent on the law that applies in the determination of such an appeal and the judicial review of the proceedings: (at [34]). McLure J then considered the operation of s 37 of the Interpretation Act, which preserves rights and interests where a written law repeals an enactment. She concluded that the failure of s 167 of the SAT Act to expressly deal with pending applications, together with the existence of s 37 of the Interpretation Act 1984 (WA), reflected a legislative intention for s 37 to apply: (at [40]). Thus, the former provisions of the TPD Act apply to an application for joinder: (at [35]). The result is that, whether under the TPD Act or the SAT Act, the Association has no right of appeal to this Court from the refusal of its application to be joined as a party.

234 It is apparent from the statutory framework outlined above that it is only parties who are given the right under the TPD Act to present their case, introduce evidence and express grounds for consideration by the Tribunal. Hence, by identifying the grounds to be raised, it is the parties which determine the ambit of the appeal: s 48 TPD Act. Silverland submits that the consequence of this construction is that the Tribunal is required to take into account and adjudicate upon the grounds raised and not to embark upon an open-ended inquiry as to the merits of the decision under review, or to review aspects of the decision that have not been raised by the parties. On that basis, it is said, involvement of the Association was not required for a proper consideration of the appeal. I accept the first proposition with one reservation. Section 51(1)(c) provides that the Tribunal may inform itself of any matter as it thinks fit. This entitles the Tribunal to go beyond the evidence put before it by the parties although the effect of that provision is not to remove all constraints on the Tribunal. In particular, it does not undermine the obligation in s 51(1)(a) to apply the rules of natural justice. However, in my view, while the Tribunal may be entitled to go outside the evidence, it may do so only with respect to an issue which is before the Tribunal, or necessary to the resolution of the appeal. The involvement of an interested person may not have been required for a proper consideration of the appeal but that fact would not militate against granting a person a right to be heard under s 62. It may, however, be of significance when considering whether to join that person as a party to the appeal.

235 The Association's application for a writ of certiorari claims that the Tribunal was in error in refusing its application to be joined. The Association's complaint is that, as a result of that refusal, the grounds that it sought to raise, which were relevant considerations that the Tribunal was required to take into account, have not been considered. In making that complaint it is apparent that the Association appreciates that, in order to establish an entitlement to the relief sought, the factors which the Tribunal failed to take into account must be of a nature that the Tribunal was bound to consider them.

236 In considering whether certiorari should lie, it is important to note the history of the Association's involvement in the proceeding in the Tribunal. In the first appeal of Kintyre Holdings Pty Ltd v Shire of Busselton the Association was granted permission to file and serve a written submission: Silverland Pty Ltd v Shire of Busselton [2004] WATPAT 139 (at [7]). On Silverland's application for review, the Association appeared on the day of the hearing. The Association gave no notice to any party of its intention to appear: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 140 (at [2]). When the Association first appeared it did not make application to be joined as a party but sought to make submissions and present the statement of Dr Brearley. At a later point the Association identified its application as being made under s 62 of TPD Act although it would be arguable whether s 62 entitled the Association to adduce evidence by tendering a witness statement: (at [3], [10], [13], [19]). The application was refused and counsel and members of the Association then sat in the gallery and observed the conduct of the appeal on 8 July 2004 and 9 July 2004: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165 (at [18]). During that time expert witnesses for Silverland and the Shire gave evidence and were cross-examined. The Association then appealed to the President of the Tribunal the decision to refuse its application to make submissions. That appeal was dismissed on the grounds that the statutory power of the President to review could only be made by a party and the Association was not a party: at Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 140 (at [21]). The Association then made application to the Tribunal to be joined as a party: see Harding & Reading v Shire of Chittering & Ors.

237 The Tribunal considered and applied its earlier decision in Harding & Reading v Shire of Chittering & Ors (at [18], [20]) where it was held that the Tribunal was entitled to join a person as a party to an appeal already instituted and that the power to join parties should be construed in the light of s 62 of the Act. Section 62 expresses an intention that the making of submissions was to be the procedure by which those with a "sufficient interest" were to participate in proceedings before the Tribunal. However, a person may be joined as a party only in those cases where joinder is necessary for the Tribunal to adequately deal with the proper disposition of the appeal: Harding & Reading v Shire of Chittering & Ors (at [20]).

238 The basis of the Association's claim for joinder was twofold. The first basis was that the Association had relevant evidence on the merits of the appeal to put before the Tribunal. The second was that it wished to raise an issue affecting the outcome of the development application; the validity of TPS 20.

239 The Tribunal found that the proper disposition of the appeal did not require the joinder of the Association. With respect to the submissions and the additional evidence, the President identified the significant number of expert witnesses who had been called by the parties and their various areas of expertise. In particular, it was noted that one of those witnesses was a botanist, as was Dr Brearley from whom the Association sought to adduce evidence. The President then noted the member's view, on examination of Dr Brearley's submission, that the issues raised by him had already been put to the Tribunal to some extent by the witnesses in the course of the proceedings and they had been the subject of cross-examination: (at [16]). The member considered that the Association simply wished to add more evidence in the areas of expertise of the witnesses already called: (at [18]). The submission of counsel for the Association that some matters were dealt with by the Shire other than in the way in which the Association would want, and that the Shire had not undertaken any studies, did not find favour with the member: (at [16]).

240 The President considered that the observations of the member were consistent with the conclusion that the additional material was not necessary in order for the Tribunal to adequately deal with the proper disposition of the appeal, the relevant test for joinder as outlined above. The President noted that the member was in a unique position, having had the benefit of the case already having been conducted and concluded and of hearing a large number of experts, including a botanist, and their evidence under cross-examination, to determine the best way to apply the test for joinder, which had been correctly identified by him: (at [20]). On that basis the President concluded that the evidence proposed to be called, in the particular circumstances, did not lead to the result that any error of law was made by the member in concluding that it was not necessary for him to hear it, notwithstanding that not all of the issues raised had been addressed by the witnesses: (at [21]).

241 As to the issue of the validity of TPS 20, the President conceded that the validity issue was not otherwise going to be advanced by the parties. Having considered the decision in Bonton Pty Ltd v City of South Perth (1981) 4 APA 8, which was relied upon by the Association, the President concluded that any ruling on the issue of validity would be the equivalent to making a declaration, a power which the Tribunal does not have: (at [30], [31]).

242 The application for certiorari claims that the Tribunal was in error in refusing the Association's application to be joined. The Association maintains that the matters it sought to raise are relevant considerations that the Tribunal was required to take into account. Therefore, its application to be joined as a party was wrongly refused. Of course, relevance is not the determining factor. Whilst it is necessary for any matter raised to be relevant, it must also be necessary in order for the Tribunal to adequately deal with the appeal.

243 On behalf of Silverland it is said that the ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which the decision maker is bound to take into account. The factors that a decision maker is bound to take into account are to be determined by construing the statute conferring the discretion. Also, for the ground to be made out the factor must be one that could materially have affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (at 39). I accept each of these propositions. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J identified the test in the following terms (at 39 - 40):

"(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ... The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation ... , that a decision-maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider'.

(b) What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in the context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act."

244 Silverland's position is that the Tribunal properly construed the Act in relation to joinder of parties and concluded that joinder of the Association was not required for proper consideration of the appeal.

245 The first point raised on behalf of the Association is that, in light of its representative character, history, purpose for which it was formed and special interest of its members, the Association had a sufficient interest to be heard by the Tribunal. In support of that proposition the Association relies on Ex parte Helena Valley/Boya Association (Inc) & Ors v State Planning Commission & Beggs (1990) 2 WAR 422 (at 437) per Ipp J. In that case the Full Court of the Supreme Court dealt with an application for a writ of certiorari by two individual landowners, and also by a residents' association, in relation to the decision of the then State Planning Commission to amend a town planning scheme to change the zoning in the area from rural to urban. Rowland J (at 431) considered the test to be whether there was an interference with a private right or whether the applicant has:

" ... a special interest in the subject matter of the action being an interest over and above that enjoyed by the public generally: Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289 at 299."

His Honour concluded that, as the landowners had standing, it was unnecessary to decide whether the association had standing: (at 431). Ipp J concluded that the association should be accorded standing: (at 437). His Honour considered a number of authorities before reaching this conclusion, as the following extract reflects (at 437):

"In Australian Conservation Inc v South Australia (1989) 52 SASR 288, Jacobs J was concerned with the standing of a representative body which asserted a special interest in a particular national park. He said (at 303):

' ... there are in my view strong grounds for according "locus standi" to a responsible and representative body such as the first plaintiff to insist that development in an area which is demonstrably within this sphere of interest should be undertaken according to law.'

The Association is in a fortiori position to that of the representative body to which Jacobs J was referring. It is not comprised of members of the general public who assert a special interest in a particular area. Its members are ratepayers and electors of the Helena Valley and Boya localities, who are concerned to protect the environment condition of the land in the vicinity of their properties.

In Onus v Alcoa Ltd [1981] HCA 50; (1981) 149 CLR 27 Brennan J said (at 74):

'A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. It is not necessary to show that the plaintiff is uniquely affected; there may be some others who interests may be affected in like manner.'

...

As was pointed out by Priestly JA in Sydney City Council v Building Owners Association of Australia (1985) 2 NSWLR 383 at 389 ... , the rules regarding locus standi in environmental cases ' ... are moving towards greater readiness to recognise plaintiffs as having locus standi no matter what it is that moves a plaintiff to have the court decide a question of law'."

246 The Association's attempt to establish that it meets the test to determine standing, which involves a finding that it had a special interest in the subject matter, would appear to be of greater relevance to an application to be heard under s 62 of the TPD Act. However, it would be unusual if a person was required to have a sufficient interest in the subject matter to be heard, but not to be joined as a party, particularly where joinder necessarily entitles a person to be heard. In my view, before a person may be joined as a party to an appeal in the tribunal, it must be established that the person has a sufficient interest in the appeal and also that joinder of the applicant is necessary to deal adequately with the proper disposition of the appeal. However, in this case, that conclusion leads to the anomalous situation where the failure to allow the Association to be heard should have precluded an application for joinder. In his reasons for decision on the review of the member's decision not to allow the Association to be heard, the President made the following concluding statement (Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 140 (at [22])):

"The final matter to be addressed is whether it might be said that, if that was the intent of the Yallingup Residents' Association, but that it was not put upon that basis, does it remain open to that association to make application for joinder? It's a matter for the applicant to decide, but it seems to me that, insofar as no decision has yet been delivered, then, given that there are no time-line constraints appearing in the Act, rules or regulations limiting the time within which an application to be joined can be made, that opportunity remains open."

247 It can be seen from this statement that the President was not turning his mind to the merits of any application, merely whether the time for making such an application had passed.

248 The issue of the Association's standing or sufficient interest in the appeal was not called into question. It is only the two matters which were raised in the reasons of the President that were the subject of dispute between the parties. On that basis, technically the issue is not before me for resolution. Should I find error in the decision of the Tribunal, the exercise of the discretion must necessarily involve determining whether there is any purpose to granting a writ of certiorari if the outcome would be the same. Should I conclude that, in addressing the two grounds of review, the Tribunal fell into error, then a decision on whether the Association had sufficient interest would be of significance. However, I consider the preferable approach would be to leave that issue for the resolution of the Tribunal, if indeed it is disputed.

249 I turn now to consider the two bases upon which the Tribunal concluded that the Association should not be joined as a party, dealing firstly with the additional evidence sought to be adduced.

250 As I have indicated, the first application for development approval on the Surfside lots was the subject of an appeal to the Tribunal: Kintyre Holdings Pty Ltd v Shire of Busselton. The basis upon which the appeal was dismissed was that the method of construction of the development, rather than the fact or type of development, did not enable the Tribunal to determine that the proposed development would not cause erosion of the primary dune: (at [40]). In reaching its decision the Tribunal considered the suitability of the development to the tourist zoning. The proposition put by the Shire was that the development had the look of a standard medium to high density residential enclave and it had not been demonstrated that the proposal was a bona fide tourist resort. The term "tourist accommodation" is defined in table 2 of TPS 20 as "a building or group of buildings substantially used for the temporary accommodation of tourists, visitors and travellers. Clause 42(1) of TPS 20 provides that no person shall occupy tourist accommodation for "more than a total of 3 months in any one 12 month period". The witness for the Shire indicated that the Shire looks to the indicia of tourist accommodation as the best method of controlling eventual use. Those indicia include the presence of recreational facilities and onsite management. On the basis that the development was said to look like any other residential development in Yallingup, it was noted that it was inappropriate in terms of lot size in that it was much smaller than the average lot size in Yallingup. It was also argued on behalf of the Shire that by using a cut and fill method of construction, the development would be inconsistent with the overall impression of Yallingup housing which predominantly consists of buildings constructed on stilts.

251 All of these matters were rejected by the Tribunal. It considered that the indicia were a "fiction" which, if present, could not reasonably operate to turn a residential dwelling into a short stay accommodation: (at [21]). Presumably then, the corollary is that the absence of these indicia does not turn a short stay accommodation development into a residential development. In the Tribunal's view, the development would not fail because it did not have the indicia of tourism development: (at [24]). The Tribunal also considered that lot area should not be a consideration that denies development because the development was a particular enclave and the residences on stilts have a different relationship to the area. Finally, although the development had nil set-back, the Tribunal's view was that there would be no objection to the development in terms of form and density: (at [24]).

252 The appeal was dismissed on the basis of landscape and environmental considerations. One issue raised under the heading was the development's position within the Yallingup Special Character Area. Clause 29 of TPS 20 allows the Council to devise specific provisions for special character areas. Clause 2(b) of Sch 6 identifies height restrictions with respect to the skyline created by the dunal system when viewed from the beach. The restriction is reflected in the Yallingup Special Character Area Policy cl 4.4.2(b). The Tribunal concluded that the development did not conflict with these provisions because the test is framed in terms of whether or not the building will "intrude" into the skyline. The Tribunal accepted the evidence of a witness that the development would be seen from the beach but not in a matter which would intrude: (at [32]).

253 The issue of the extent of vegetation which would remain was also addressed by the Tribunal. It was held that the disruption of vegetation would not necessarily provide a reason for refusal because the area had been specifically designed for tourist development that may require the loss of remnant vegetation. It was the effect of the loss of vegetation on the foreshore, in particular on the primary dune, which was considered to be significant: (at [34]). The Tribunal concluded that the expert evidence was to the effect that the construction of the proposed development had the potential to destabilize the crest of the dune: (at [39]). It stated (at [40]):

"This is an isolated pocket of development adjoining a primary dune where the consequence of the proposal is the major destruction of dense remnant vegetation that has a stabilising effect on that dune. The proposed method of development of cut and fill, especially on the western side of Lot 105, does not give the Tribunal any method to determine that the proposed development would not cause erosion of the primary dune."

254 As I have indicated, when dealing with the first application, the Tribunal in that case made it perfectly clear that the site was marked for development and all that was required for approval to be granted was to consolidate development away from the primary dune and provide a clear plan for construction and subsequent stabilisation of the primary dune. Protection of the foreshore dune system was considered to be the only outstanding issue: (at [41]). The change of zoning under TPS 20 and the determination of the Tribunal made it almost inevitable that the Surfside lots would be developed for tourist accommodation. The only outstanding matter was for any development to adequately protect the primary dune.

255 On the first development application, counsel for Kintyre took the position that Mr Edwards was not required as a witness and his evidence could be tendered in documentary form. It is trite to observe that, even if Silverland is a member of the same group of companies, is represented by the same counsel or is the same company differently named, any concession made on behalf of Kintyre in that proceeding does not bind Silverland in this proceeding. Neither do I consider the concession to be evidence of the weakness of any contrary view taken by Silverland. Significantly, the decision of the Tribunal in Kintyre Holdings Pty Ltd v Shire of Busselton makes no reference to any of the material submitted by the Association.

256 On the subsequent application reference was made to the previous development application. It was noted that the previous proposal was for 14 stand-alone tourist accommodation units were 11 are now proposed: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166 (at [9]). Reference was also made to the Tribunal's statement that, in the absence of the concern about protection of the primary dune, there would be no objection to the development in terms of form and density: (at [10]). The Tribunal's statement on the previous application that the site is clearly earmarked for development was also noted as was the view that it was only necessary for a new proposal to consolidate development away from the primary dune and to provide a clear plan for construction and subsequent stabilisation: (at [11]).

257 Silverland's development comprised 19 tourist accommodation units, three commercial tenancies and a restaurant. Eleven of the units were to be stand-alone two storey buildings, the first seven fronting Dawson Drive and next four fronting an internal road running off Dawson Drive. Units 12 to 16 would be two storey "townhouse" style replacing the former commercial buildings at the western end of the Valley Road frontage. The remaining three tourist accommodation units would be above the commercial uses, also fronting Valley Road at the corner with Dawson Drive. The Tribunal noted that the proposed development includes a retaining wall which would be located at varying distances inside the western boundary separating the area levelled for the buildings from the leeward side of the dune: (at [7]).

258 The Tribunal addressed the planning considerations relevant to the appeal. Reference was made to the development's location within a "Tourist" zone requiring the buildings to be substantially used for the temporary accommodation of tourists, visitors or travellers: (at [13] - [14]). The development's suitability for inclusion in the Yallingup Special Character Area and a Landscape Value Area was considered: (at [15] - [17]). The provisions of the Leeuwin Ridge Statement of Planning Policy ("LNRSPP") and the State Coastal Planning Policy ("SPP2.6"), both of which relate to the area to be developed, were also addressed: (at [18] - [23]). The Tribunal also considered the Residential Design Codes ("RD Codes"): (at [21], [34] - [39]).

259 Section 61(1)(a) of the TPD Act requires the Tribunal to have due regard to any relevant statements of planning policy. However, contrary to the submission put by the Shire, the Tribunal held that the provisions of the policy do not become mandatory because the scheme requires that regard be had to them. The Tribunal concluded that it was open for it to determine the development application, notwithstanding that Silverland had not prepared an outline development plan as required by the LNRSPP: (at [24], [29], [30]).

260 In addressing the issue of whether the development conformed with the RD Codes, the Tribunal considered the evidence of the Shire's witness, Mr Bell, that Sch 6 of TPS 20 applied to land in the Yallingup Special Character Area and permitted group housing at a density of R20 on lots greater than 900 square metres. The R20 requirements of the RD Codes require a minimum site area of 440 square metres with an average of 500 square metres whereas the average site area per dwelling in Silverland's application was 362.105 square metres. The set backs of the development were also less than the R20 requirements: (at [35]). Silverland's witness maintained that the proposed development was not "group housing", which is not in any event defined in TPS 20, and was properly classified as "tourist accommodation" as defined in TPS 20: (at [36]).

261 The Tribunal considered that the proposed development might be used in a manner similar to the use made of grouped dwelling, but that does not place the proposed development in that use class: (at [38]). The finding of the Tribunal was that the proposed development was not bound by the R20 standards of the RD Codes. The application was for "tourist accommodation" and the subject land was zoned "Tourist" with no coding attributed to it under TPS 20: (at [83]). Consequently, any variation of the proposed development from the standards of the R20 coding was not a reason for finding against it: (at [39]).

262 The Tribunal also dealt with the issue of whether the set back of the development was appropriate. Clause 2.3 of SPP2.6 states that, as a general guide, a foreshore reserve width of approximately 100 metres from the horizontal setback datum ("HSD") will be expected. Silverland's case was that, as it was an infill development and, as data was unavailable, SPP2.6 recommended a default value of 40 metres from the HSD, resulting in a setback of 78 metres. Silverland's witness considered it was reasonable to use the toe of the dune as the HSD and the set back was exceeded by the proposed development: (at [40] - [43]). However, the Shire disputed that Silverland's development was an infill development and, as the crest of the dune was the HSD, the proposed development was as close as 15 metres to the dune crest: (at [42] - [43]). The competing evidence was considered by the Tribunal which, while accepting that the development was not infill development, did not accept that the HSD is at the crest of the dune. The Tribunal concluded (at [47]):

"The western side of the dune has patches of sand where revegetation is sparse, but there is an identifiable vegetation line at the foot of the dune and this section of the beach has the protection of the reef. The proposed development will not be visible from the beach. The proposed development will interrupt the view of the dune from some existing houses, but this is a site zoned 'Tourist' and development in some form should be expected. I consider that the proposed development is consistent with the intent of SPP2.6 ... "

263 Based on the evidence adduced by the parties at the hearing, the Tribunal concluded that the form of the development was not a reason for refusal and that the application lodged and procedures followed by Silverland were sufficient to be able to assess the proposed development on its merits and against the criteria of the LNRSPP: (at [86] - [87]). Again, whilst the Tribunal hearing the Kintyre development also addressed this issue, the Tribunal on the Silverland development gave careful consideration to the material before it and reached its own conclusion.

264 The Tribunal also considered that the bushfire notice and policy relied upon by Silverland did not constitute a sustainable bushfire plan but stated that the preparation of a site specific sustainable bushfire plan could be a condition of approval: (at [88]).

265 The Tribunal then proceeded to deal with the issues which troubled the Tribunal in the Kintyre Holdings Pty Ltd v Shire of Busselton application; the effect on the dune and the impact on the dune of the proposed retaining wall: (at [48] - [82]). In this context the Tribunal heard the evidence of a botanist and an environmental management consultant in addition to a coastal scientist. The evidence revealed that the whole area is a dunal system with various topographic parts such as ridges and swales. The primary dune was said to be a natural phenomenon inherently unstable if exposed to wind erosion. Instability of the dune and wind flow across the dune was said to be exacerbated by removal of vegetation by various means including uncontrolled access by people or vehicles. The land between the Dawson Drive and the crest of the dune was vegetated at the time of the application. Whilst it was considered by the expert witnesses to be possible to rehabilitate this type of dune, it was said to be a slow process and rehabilitation work already completed had limited success. On cross-examination one of Silverland's expert witnesses said that he understood the proportion of the site to remain vegetated in the proposed development was much the same as in the previous appeal.

266 The evidence before the Tribunal was that the retaining wall of the proposed development would be located between 30 metres to 40 metres inland of the dune crest and between 8 metres and 14 metres inside the boundary of the subject land. Immediately to the west, parallel with and for the full length of the proposed wall drains would be installed. According to Silverland's witnesses the retaining wall and drains, together with the existing vegetation, would stop erosion. They concluded that the construction of the proposed retaining wall, despite requiring removal of some vegetation, should not, of itself lead to destabilisation of the primary dune. On cross-examination one witness said that, without stabilising works in place the dune may collapse. If the work were extensive it might cause the whole dune to collapse and affect the windward side. However, it was maintained that the work proposed was not that extensive and, in the normal course of events, would not have an effect on the western side of the dune. Any risk of erosion should be addressed by carefully planned construction techniques and moving quickly to re-establish stabilising features such as vegetations, mulches and other material. The opinion of the environmental management consultant was that there would be no effect on the stability of the dune or vegetation from the discharge of effluent from the drains because of the nature of Western Australian soil types in coastal dune terrain. Silverland's submission was that pedestrian access into the vegetated portion of the coastal reserve and particularly the primary dune should not increase as a result of the development because construction of the wall topped by a fence would stop people from destabilising the dune by moving between the site and dune to the west. The expert evidence further indicated that the location of the proposed development on the leeward side would not cause instability or modify the prevailing wind flow across the dune and would not increase erosion. Under cross-examination, one expert witness said that there is a threshold distance from the dune crest within which problems would potentially arise. However, he further stated that, as long as the proposed development is outside that threshold distance, in his view, from upper mid slope down, and provided stabilisation was possible, the location would not make much difference.

267 Turning to the issue which the Tribunal in Kintyre Holdings Pty Ltd v Shire of Busselton considered an impediment to allowing the appeal, the Tribunal expressed the view that it was of singular importance that any development of the subject land did not adversely affect the stability of, and the vegetation toward, the crest on and the leeward side of the dune. If it did, erosion would result which would affect the crest of the dune and ultimately the westward side: (at [90]). Based on the expert evidence before it, the Tribunal accepted that the area could be managed to prevent sand movement between levelling and construction with appropriate conditions: (at [94]). The conclusion was also reached that the proposed retaining wall, if properly constructed to an appropriate engineering standard, could provide a stable barrier supporting the dune and maintain the difference in level between the dune area west of the wall and the area of development east of the wall: (at [96]). However, the view of the Tribunal was that the stability of the dune would be better served if the drains were not located west of the retaining wall and if there was no development of any type west of the wall: (at [97]). The final conclusion drawn was that the access path giving access to the foot of the dune at the rear of the ablution block was inconsistent with the intent of directing all pedestrian movement away from the dune. The solution was to direct all pedestrians leaving the development away from the dune and to Valley Road or Dawson Drive only: (at [98]). Consequently, the appeal was upheld on conditions, one of which was to prepare plans acceptable to the Shire addressing, inter alia, construction of the retaining wall, stabilisation and revegetation of ground disturbed to the west of the wall, stabilisation and landscaping of the area east of the retaining wall: (at [99]).

268 I believe it is apparent from the reasons for decision that the Tribunal on the Silverland application did not simply adopt the findings of the Tribunal in the Kintyre application. For example, the following comment was made by the Tribunal (at [84]):

"Both counsel made the point that the Tribunal is not bound by the findings in Kintyre Holdings and this proposed development is to be considered on its merits."

269 However, the Tribunal did observe that the relevant planning provisions had not changed since the previous decision before referring the previous Tribunal's comment that "if there was nothing more, there would be no objection to this development in terms of its form and density": (at [84]).

270 A reference to the conclusions in the Kintyre Holdings Pty Ltd v Shire of Busselton appeal is not evidence of a wholesale adoption of the findings in that appeal. The Association submits that, if the Tribunal is to rely on the earlier decision other than in relation to the landscape and environment consideration, the Tribunal needs to consider the supporting evidence to see whether the new development breaches any of those matters which were not of concern in the previous case. In other words, the submission, as I understand it, is that the critical evidence relied upon in Kintyre Holdings Pty Ltd v Shire of Busselton to refuse the appeal on environmental grounds should be put in evidence on this appeal. The Association's further submission is that the failure of the Tribunal to do so amounts to a failure to take account of a relevant consideration.

271 The submission made by Silverland is that, as the Tribunal is not bound by the rules of evidence, it may inform itself of any matter as it thinks fit. It is also entitled to deal with each appeal with as little formality and technicality as the legislation and a proper consideration of the matter before the Tribunal permit: (s 51(1)) of the Act. On that basis, it is said, the Tribunal is entitled to consider earlier decisions in which the same or similar matters raised by the Association had been considered. Support for that proposition is to be found in the decision of S v Legal Practice Board of Western Australia [2004] WASCA 28; (2004) 29 WAR 173 (at [58]) in which the following conclusion was reached (at 187 [58]).

"However, although it is our view that no estoppel operates in this area, a Board considering whether it is satisfied for the purposes of s 20 will no doubt pay due regard to any decision reached in relation to the same applicant for the purposes of s 9, particularly where such a decision has been reached after a careful examination of the merits, as was the case in respect of the appellant."

272 On that basis, it is said, the Tribunal was entitled to bring to account the fact that there had been an earlier decision of the Tribunal in which the matters that the Association sought to raise had been rejected as a basis for rejecting an application for development of the land and conclude that joinder was not necessary for a proper consideration of those matters. I agree with Silverland's analysis of the use to which an earlier decision may be put. However, for reliance to be placed on a previous decision the relevant factors must remain unchanged and not be the subject of a different attack on the matters decided upon.

273 The Association's proposition is that the decision in Kintyre Holdings Pty Ltd v Shire of Busselton, although it may be considered by the Tribunal, is not binding on it. I have no difficulty with that proposition. However, I am not convinced that the proposition that the Tribunal is bound to consider the evidence that was before the previous Tribunal when considering the earlier decision, is valid in all circumstances. Much would depend on whether the basis of the decision on any particular issue is apparent from the judgment and whether any of the matters relevant to the decision were the subject of dispute in the subsequent proceedings.

274 If the judgments in the two proceedings are compared, it is apparent that, while the Tribunal on Silverland's application considered a number of the same issues put before the Tribunal on the Kintyre Holdings Pty Ltd v Shire of Busselton application, those issues were decided on the evidence adduced in the Silverland application and without reliance on the earlier decision. Other matters addressed by the Tribunal on Silverland's application were the subject of evidence in the hearing upon which the Tribunal's decision was based. For these reasons I do not consider there is any merit in this point.

275 The next issue to consider is the Tribunal's proposition that the material which the Association sought to adduce was not of a character necessary for the resolution of the appeal. According to the Association, the issues which the Association unsuccessfully sought to raise in the Tribunal were accepted by the Tribunal as being relevant and new. The source of that assertion is said to be the transcript of the hearing in the Tribunal of the application for joinder. Having read the relevant pages of that transcript, I do not accept that the Shire made a concession that all matters sought to be raised by the Association were relevant and new. Of course, anything to do with the proposition that TPS 20 was invalid in part or in whole was new. However, the material relied upon with respect to the merits of the development application were not, in my view, the subject of any concession by the Shire. As to the view of the Tribunal, the judgment is the only source of any concluded opinion on whether the matters sought to be raised were relevant and new. In the judgment of the Tribunal on the application for joinder the presiding member noted that the Association's submissions on the merits were described by its counsel as "not new": Silverland Pty Ltd v Shire of Busselton [2004] WATPAT 139 (at [25]).

276 Further, the Tribunal concluded that the part of the submission being the two documents prepared by Mr Edwards (items 3 and 7 in the list of documents identified in these reasons above as being attached to the affidavit of Mr Greig dated 2 February 2005 filed in supporting of the originating motion) and any oral evidence arising from that material, would not assist him in the disposition of the appeal: (at [30]). Having considered that material, I concur with the Tribunal's view.

277 The author of "Submission to the Town Planning Appeals Tribunal re Development Proposal: Lot 105 Dawson Drive/Valley Road, Yallingup" makes the statement that the Association supports "appropriate development" but opposes "excessive development". The submission comments on issues arising from the then proposed development such as the additional stress caused by the population pressure, impact on the dune and vegetation and the visual amenity of the development. The submissions also refers to planning policy issues such as those contained in the WAPC Leeuwin-Naturaliste Ridge Planning Review-Report of Social Assessment Survey 1996 which noted that the respondents to the survey indicated general support for tourism provided it did not adversely affect resident's quality of life. The respondents also considered that development should be of the highest aesthetic quality and in keeping with the natural environment.

278 The other document, Mr Edward's letter to the Shire dated 23 November 2003 with respect to the proposed development of the Surfside lots has a similar content, although it provides additional detail. Mr Edwards addressed the impact of the proposed development on the frontal dune including the efficacy of revegetation, the visual impact, the lack of adequate provision for parking, the effluent disposal system and whether the development was indeed intended for tourist accommodation. Mr Edwards questioned with the development was indeed infill development as suggested and also commented on the proposed setback. While the document sets out some useful background to the development of the Yallingup townsite and addresses matters relevant to the appeal, those matters are dealt with by expressions of non-expert opinion and are highly unlikely to have been considered to be of greater weight than the expert witnesses called by Silverland. Most significantly, it is apparent from a consideration of the Tribunal's judgment that these matters were the subject of evidence and were given detailed considered by the Tribunal. On neither occasion on which such issues were considered were they considered by the Tribunal to be of sufficient import to refuse the development application. For these reasons I am unpersuaded that it was necessary to receive this information to adequately deal with the proper disposition of the appeal. That conclusion is based on the nature of the material rather than its form and remains unaffected, in my view, by the fact that, if joined as a party, the Association might call Mr Edwards to give evidence rather than simply tender the documents to which I have referred.

279 As to the expert evidence of Dr Brearley, despite the assertion made by the Association that Dr Brearley would provide evidence not otherwise available, the Tribunal concluded that the issues raised in Dr Brearley's submission had already been put to the Tribunal. The Association refutes that proposition.

280 It is the case that the Tribunal had heard the evidence of an expert botanist which had been tested under cross-examination which, at least on the Shire's view, had addressed the issues referred to in the statement of Dr Brearley. Silverland submits that, in those circumstances, the Tribunal was entitled to conclude that evidence of a further botanist was not necessary in order to properly consider such issues. Further, the Association's application was made on the basis that Dr Brearley's evidence would not be put to the other expert and there would be no testing of any conflict between the experts. Silverland's position is that, in those circumstances the Tribunal was right to conclude that such a procedure was unlikely to advance a proper consideration of the issues.

281 It is said by counsel for the Association that the evidence of Dr Brearley was plainly new evidence, was evidence in conflict with existing evidence, and was evidence that had been received in the hearing of Kintyre Holdings Pty Ltd v Shire of Busselton. I note, however, that it was not referred to by the Tribunal, although that may have been because the evidence was not tested under cross-examination.

282 The matters raised by Dr Brearley which were not the subject of a finding against the proposed development were the stability of the dune, revegetation of the site and the aesthetics of the development. Each of these issues was addressed by the Tribunal. As to the development's impact on the stability of the dune, Dr Brearley notes the fragility of the area and observes that the stability of Lots 800 and 801 could not be achieved without first stabilising landforms on the ocean side. Dr Brearley also states:

"There appears to be no restrictions on how land outside of the individual building sites is impacted by the residents. The blocks account for almost the entire area of the site, with no public open space or reserve land between the individual lots. The site characteristics need to be recognised and restrictions introduced to ensure stability of the dune system is maintained."

283 Dr Brearley considered the revegetation list and the barrier to informal access to be inadequate. He also notes that revegetation has proved in the past to be a very difficult and slow process. The position of the development on the dune slopes and the intrusion of buildings into the skyline is also the subject of criticism. In my view, it is apparent from the Tribunal's analysis of these issues that many of Dr Brearley's criticisms were the subject of concessions made by Silverland's experts under cross-examination and hence were before the Tribunal. Further, it is not the case that the Tribunal was not aware of these issues or failed to give them consideration. The fact is that the Tribunal did not consider them to be impediments to planning approval although some issues were considered to be in need of further attention and were the subject to conditions to be imposed on the development approval.

284 The question of whether it was necessary for a proper consideration of the appeal to hear the evidence of Dr Brearley should be considered in the context of the Association's proposition that, while the developer called evidence from various experts including environmental experts, the Shire did not. As counsel for the Association observed, the Shire did not meet that evidence head on. The Association's purpose in seeking to be joined as a party is "to put on positive evidence when it had not been put on by the Shire". That is said to be the whole purpose of the evidence of Dr Brearley. It is also said on behalf of the Association that one of the bases on which it was refused permission to be heard was because "the Shire represents the interests of the residents in any event". As to the latter proposition, I do not accept that the Shire represents the interests of residents affected by a proposed development. There are many influences on local government agencies only one of which is that of residents or ratepayers. This would not be the first occasion on which a resident has held a different view from that of the local council of the impact of a development. That is not to say that, in every case, it is necessary for adjoining landowners to be heard on an appeal from a decision on a development application. However, in this case I am not of the view that the Shire's role in the proceedings included representing the interests of landowners and residents in Yallingup. However, I am unpersuaded that the decision to refuse the Association's application was affected by that observation.

285 Whether in order to adequately deal with a review of this type it is necessary to hear positive evidence in opposition to the evidence of the proponents of the development will depend on the facts of individual cases. I do not accept that, in this case, the absence of such evidence would adversely affect the outcome. As I have indicated, the experts conceded that stability was an issue with the dune, that revegetation was a difficult exercise, and that pedestrian access would adversely impact on both the vegetation and dune stability. They were also some differences in the evidence of each witness requiring careful consideration of the evidence. Whilst some of those differences were a matter of degree, they are sufficient to reduce the concern which sometimes arises in cases of this type that the expert witnesses may not be quite as independent as they are required to be. In my opinion, all of the significant matters raised by Dr Brearley were adequately addressed in cross-examination. Consequently, I remain unpersuaded that, in order to adequately dispose of the appeal, the Tribunal was required to hear the evidence sought to be presented by the Association and hence I do not consider that, on that basis, the Tribunal has fallen into error in denying the Association's application to be joined as a party.

286 As to the argument that joinder should have been granted because of the procedural shortcomings in the implementation of TPS 20, the Association's submission is that the Tribunal should take into account the fact that the zoning to tourist had not followed the procedural path mandated by the TPD Act. According to counsel it would be a fact it took into consideration in determining whether or not to approve a development for that zoning. If it did, the Association submits that the development would not have been approved on appeal because the previous zoning did not allow such a development as the average lot size of the development was too low.

287 I accept that the validity of the zoning of the land would not otherwise be put before the Tribunal. I accept also that the zoning of the Surfside land is relevant to the resolution of the appeal, a view held also by the President: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166 (at [32]). That is particularly so in this case where Silverland has made it clear that the proposed development is not group housing but tourist accommodation only permissible under a "Tourist" zoning: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166 (at [36]). On that basis, if the land was not validly zoned "Tourist" the proposed development could not have been approved.

288 The Association submits that for the purposes of prerogative relief, it is sufficient that it raises a matter that is relevant, such as the zoning aspect. It submits that it is not required to establish on balance that the purported change of zoning was invalid (although it does submit that invalidity has been established). Whilst I accept an applicant for joinder need not establish as fact the matter of relevance on which the application is based, the matter must be something which can be determined by the Tribunal or taken into account in determining the appeal.

289 Silverland concedes that the issue of the validity of the zoning is a jurisdictional fact which, if properly raised, the Tribunal should receive and consider. However, Silverland's submissions is that the Tribunal cannot itself make a binding decision as to the limits of its jurisdiction (in this case the validity of the zoning): Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 (at 466 - 468)

290 It is for the Court to determine independently and for itself whether the jurisdiction has been established: Cabal & Ors v Attorney-General of the Commonwealth [2001] FCA 583; (2001) 113 FCR 154 (at 169). The matter having now been raised before the Court as to the validity of the zoning it should be determined by the Court and the Court should exercise its discretion to decline to grant certiorari in relation to any failure to consider the validity of the zoning.

291 The President of the Tribunal on reviewing the joinder application dealt firstly with the proposition that TPS 20 rezoned the Surfside lots. The President accepted Silverland's submission that the effect of TPS 20 was to create a new town planning scheme, which came into effect in 1999, and that the zones under that scheme changed the way in which the subject property was to be addressed. The President concluded that to describe that as a rezoning is both incorrect and inapposite: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165 (at [23]). As I have indicated above, the distinction is relevant to whether the effect of a failure to consult with respect to that portion of TPS 20 which related to the Yallingup townsite was to invalidate only that specific part of TPS 20.

292 The conclusion of the President was that the validity of the zoning of the Surfside lots was not an issue which the Tribunal would be able to determine as it involved making a declaration which was beyond the power of the Tribunal: (at [31] - [32]). The reasoning behind the conclusion can be identified from the following extract from the President's reasons (at [32]):

"I say that because since the Shire of Busselton is to be bound by the decision, and since it is its town planning scheme which is the subject of the attack, a determination by the Tribunal must necessarily be binding on upon the Shire. If it is binding upon the Shire in relation to its own scheme it could not operate to some contrary effect. As a result, it seems to me that what is being asserted, in effect, for the purpose of the disposition of the issue to be agitated by the applicant for joinder is a matter which would involve effectively a declaration."

293 In support of its position, the Association relied on the decision in Bonton Pty Ltd v City of South Perth, a decision of the Tribunal under the chairmanship of this Court's previous Chief Justice. In that case the validity of an amendment to the City of Perth's town planning scheme was raised in the course of an appeal. The Tribunal held that, in order to decide an appeal within its jurisdiction, the Tribunal was required to identify and decide any relevant question of law necessary for the determination of the appeal. However, in this context it was noted that the legislation did not confer on it the jurisdiction to make binding declarations of law. The following passage of the judgment was quoted by the President and relied upon in reaching his decision:

"However, while a Tribunal cannot make binding declarations of law, that does not necessarily mean that it has no jurisdiction to decide for the purpose of the instant appeal whatever questions of law arise for decision on that appeal.

The Tribunal's decision may have no more effect than a mere opinion expressed along the road towards a determination of the appeal, but it may not be prevented from coming to a conclusion on the point."

294 In so far as the decision in Bonton Pty Ltd v City of South Perth suggests that, where a Tribunal would not be entitled to make a declaration on a matter of law founding jurisdiction, the Tribunal may make a finding to that effect for the purposes of the hearing in the Tribunal, I would not be prepared to follow such a decision. I do not accept that the Tribunal has the power to decide a question of law for the purpose of an appeal where the finding could have consequences outside the Tribunal if it were adopted in another situation. Having considered the reasons for decision I do not agree with the view of the President of the Tribunal that the passage from Bonton Pty Ltd v City of South Perth is mostly limited in its application to incidental questions: (at [27] - [28]). However, I accept that it should be. In my view, the issue sought to be raised by the Association is one which can only be resolved by the making of a declaration which the Tribunal has no power to make.

295 It is said by the Association that the rules of natural justice, by which the Tribunal was bound, obliged the Tribunal to consider both these issues. Certainly, s 51(1)(a) of the TPD Act provides that, in the performance of its functions, the Tribunal, however constituted, is bound by the rules of natural justice. It is also submitted that the Association was entitled by the rules of natural justice to be heard in relation to any matter that might be adverse to its interests. The decision in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 (at 599) is said to be the authority for that proposition. I accept that Annetts v McCann is authority for the proposition that a person granted representation at a coronial inquiry must be given the right to be heard before any finding adverse to that person is made. It is also the case that the principle applies even where the finding, of its own force, could not affect a person's legal rights or obligations: (at 599). Further, I accept that the principle has application beyond that particular jurisdiction and would apply to any situation where a finding adverse to a person's interests may be made and has consequences to the person, even if that consequence is an adverse impact on the person's reputation. However, it must also be noted that the High Court concluded that a person given the right to be heard is not entitled to make submissions on the general subject matter of the inquest: (at 601).

296 The fact that the Tribunal is bound by the rules of natural justice is not the subject of debate. It is a more interesting question whether that obligation extends beyond affording natural justice to the parties to the appeal. I accept the Shire's submission that, where a decision is made under statute, the application and the content of the doctrine of natural justice depends to a large extent upon the construction of the statute: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584). Consequently, the right of a person to be heard and participate in an appeal is confined by the scheme of the Act. The Shire submits that the proposition in s 51(1)(a) of the TPD Act that the Tribunal "in the performance of its functions" is bound by the rules of natural justice, must be construed in the statutory context referred to above; in particular where the TPD Act distinguishes between a party to an appeal and a person with a sufficient interest who is entitled to make submissions. It is only parties who are given the right under the Act to present their case, introduce evidence and express grounds for consideration by the Tribunal. It is therefore significant that the matter before the Tribunal was an appeal by Silverland in respect of its application for development approval. The Shire, as decision maker in the public interest and as the entity with the ultimate responsibility for overseeing the development, was a respondent to the appeal. It is in this context that the obligation to afford natural justice operates.

297 The conclusion that I have reached is that the only right to natural justice to which the Association was entitled was the right to be heard on its application for joinder. The facts of this case do not allow me to conclude that any finding which the Tribunal was entitled to make in the context of the appeal was adverse to the Association's interests. Indeed, if the Association was afforded the opportunity to raise issues such as the validity of the scheme it would be making submissions on the general subject matter of the hearing, which is not within the scope of the rules of natural justice. More importantly, however, I believe the Association misconstrues the meaning of the expression "adverse to it's interests". The fact that a finding may be adverse to the views of the Association does not mean that it is adverse to the Association's interests. The fact that the outcome of the proceeding might be one which affects a member of the Association or to which a member objects does not meet that description. It is the particular interests of the Association which must be at risk of an adverse finding. For these reasons I do not consider that the application of the principles of natural justice would entitle the Association to be heard as an interested person or to be joined as a party to the proceeding.

298 The Association also places emphasis on the fact that the Tribunal was not bound by the rules of evidence (s 51(1)(b) TPD Act) and was, therefore, entitled to inform itself of any matter as it thinks fit (s 51(1)(c)). On that basis the Tribunal could have received the extra material, irrespective of whether the Association was joined as a party and even if that evidence is not presented or received in the more usual format required by courts. This power was used as a basis for justifying joinder without the need to apply the test set out in Harding & Reading v Shire of Chittering & Ors. Even if the power to inform itself of any matter as it thinks fit extends to calling evidence from an organisation such as the Association, I do not accept that it would be an appropriate exercise of the power in the circumstances of this case. Whilst no doubt the power is important, it is use must be carefully considered. In particular it would be important for a Tribunal not to be seen to afford one particular special interest organisation the right to put its views forward without affording that opportunity to others. I can see the use of such a provision in circumstances where the form a particular piece of evidence might be of concern. It might also be useful in order to resolve an issue before the Tribunal which cannot be resolved by the evidence adduced by the parties. However, in my view, this is not such a case. These examples are not intended to limit the circumstances in which the power in s 51(c) may be utilised, they simply indicate that allowing any person who wishes to be heard on relevant matters the right to be joined as a party is not within the proper scope of s 51(c).

299 Of course, the fact that the Tribunal is not bound by the rules of evidence can be a two edged sword. Because the Tribunal is not so bound it could consider matters that depend on a subjective assessment without receiving the views of the members of the Association. However, in this case, there is no suggestion that the Tribunal relied on this exemption in reaching its conclusion on whether to join the Association to the appeal.

300 In determining whether error has been established in the decision of the President not to order joinder, I accept that it is a relevant factor that the application was not made at the first opportunity. As I have indicated, the initial application was made under s 62. When that application was refused, members of the Association and the Association's legal representatives remained in the hearing room and followed the proceedings to the point where the decision was reserved. Rather than applying to be joined as a party during the course of the hearing, the decision was made to appeal the Tribunal's decision. It was not until that appeal was refused that an application to be joined as a party was made.

301 Silverland submits that a proper consideration of the appeal required fairness and finality and, therefore, the Tribunal correctly had regard to the fact that the Association, by its counsel, had stood by without making an application for joinder and allowed the matter to proceed. Silverland further submitted that the Tribunal was required to evaluate what a proper consideration of the matter required in the context of a requirement to deal with each appeal "with as little formality and technicality and ... as much speed" as a proper consideration permitted: see s 51(1)(e).

302 On the Association's submission it was proper for it to wait and see what positive evidence the Shire presented in answer to the appeal. Once it became clear that the Shire was not putting on positive evidence going to the environmental issues and was not intending to address the zoning issue, the decision to apply to be joined was made. The Association's submission was that, prior to that point, the need to be joined as a party was not apparent. On this basis, it is said, there was no delay and the fact that the application for joinder was not made until after the hearing should have no impact on the grant of the relief sought.

303 I am not persuaded that it was the realisation of what were perceived to be deficiencies in the way in which the Shire responded to the appeal that caused the application for joinder to be made. If that were the case one would have expected the Association to make an application for joinder instead of the application to review the s 62 application. Alternatively, one would expect the joinder application to supersede the s 62 application. I believe it is apparent from the transcript of proceedings before the member (as quoted in the subsequent decisions) and the concluding paragraph of the President's reasons on the appeal of the s 62 application, that the decision to apply to be joined was made.

304 I accept Silverland's submission that the Association's failure to raise at the outset what are said to be matters necessary for the resolution of the appeal was a matter which the Tribunal was entitled to take into account when determining the joinder application. Once it was apparent that the matters were not to be raised by the parties, an appeal was instituted rather than an application for joinder. To my mind, this factor not only impacts on the exercise of the discretion to allow joinder but also adversely reflects on the Association's proposition as to the significance of the material. The Shire also submits that there has been undue delay in the bringing of the application and relies on the decision in Re Smith; Ex parte Rundell (1991) 5 WAR 295 (at 307, 322) in support of that proposition.

305 The Association's response is that the application was brought within the time provided by O 56 r 11 which requires an order nisi for a writ of certiorari to be made within six months after the date of the judgment, order or other proceeding to which the application relates. The significance of any limitation period is more relevant to the issue of whether the action is time barred. It is of no relevance to the issue of whether the timing of the application is such as to justify declining to make an order which would otherwise be made.

306 I accept that, in circumstances where there is a requirement in s 51(1)(e) to deal with each appeal with as little formality and technicality, and to determine each appeal with as much speed as the requirements of the Act, the regulation and the rules and the proper consideration of the matter before it permits, the fact that two days of hearing have gone by and an appeal on an interlocutory issue has been heard and resolved would militate against the application for joinder being granted.

307 To a large extent, the two issues, the merit of the application and the affect on the outcome of any delay, are inextricably linked. If there was substantial merit in the application for joinder, the fact of delay would have less impact. However, in this case, the merits are more marginal. Hence the issue of the delay becomes of greater import.

308 Keeping in mind the nature of the Tribunal and the aim to dispose of matters before it in a timely, less costly fashion, I consider the delay involved in the application would, in the absence of a reasonable explanation, justify a refusal of the application. The explanations proffered on behalf of the Association do not, in my view, meet that description. Consequently, I have formed the view that, even if I were persuaded of the merit of the application, I would not be minded to grant the relief sought.

309 For all the reasons to which I have referred, I have reached the conclusion that the Tribunal did not, as alleged by the Association, fail to take into account any relevant and necessary consideration or to properly exercise a power available to it. Neither was the Association deprived of any right to natural justice. Therefore no error has been shown which would justify granting the relief sought.

310 As senior member of the Tribunal, Mr Jordan, commented:

"That the Association does not like the form of development that might be allowed by the provisions of TPS 20 is clear, as is its preference for a form of development quite different from that applied for. The Association members do not want to have to look at this development. It can be inferred from the submission that the Association would prefer that there were different planning controls in place so that any developments were more in keeping with its vision for Yallingup, rather than that potentially allowed for under TPS 20."

311 I believe this comment is particularly apt. I have no doubt that many landowners would feel aggrieved if they were deprived of the right, however meagre, to be consulted on a proposed town planning scheme which impacts on their land. It is also the case that the view of the Association and surrounding landowners of the merits of this development may well be shared by other members of the public. However, the issue for the Court is not whether the development is appropriate for the area or whether it will have an adverse impact on the area. Those matters are properly dealt with by a Tribunal with expertise on the planning issues relevant to applications of the type under review. The role of this Court is simply to identify any legal error which might justify the grant of the relief sought. In this case I have found that I am unable to do so. For these reasons, the order nisi should be discharged.

312 As I am unpersuaded of the merit of either application, the order nisi should be discharged and the originating summons dismissed. I will hear the parties as to costs.