Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : ZAMPATTI and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 127

Appeal - Town planning - Subdivision approval refused - Merits Review conducted by State Administrative Tribunal - Further statutory review pursued - Errors of law alleged - Alleged principal criterion for subdivisional approval not identified on second review - Basis for leave to appeal to Court of Appeal

State Administrative Tribunal Act 2004 (WA), s 105(1)

Planning and Development Act 2005 (WA), s 244

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187

Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302

Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616

Cabal v United Mexican States (No 3) [2000] FCA 1204; (2000) 186 ALR 188

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Evans v Marmont [1997] NSWSC 331; (1997) 42 NSWLR 70

HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292

Keating v Western Australia [2007] WASCA 98, (2007) 35 WAR 1

Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324

Lombardo v Federal Commissioner of Taxation [1979] FCA 66; (1979) 40 FLR 208

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457

Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615

R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322

Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116

Re Commissioner of Taxation of the Commonwealth of Australia v Marita McCabe [1990] FCA 389; (1990) 26 FCR 431

Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148

Secretary to the Department of Premier & Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143

Tucker for Narnoobinya Family Group v Aboriginal and Torres Strait Islander Commission (2004) FCA 134

XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; (1971) 124 CLR 343

Zampatti and Western Australian Planning Commission [2009] WASAT 127

Zampatti and Western Australian Planning Commission [2009] WASAT 70

1 PULLIN JA: This is an appeal pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) concerning a decision of the President of the State Administrative Tribunal (SAT), dismissing the appellant's application for a review of a determination made by Mr L Graham, a senior sessional member of the SAT; Zampatti and Western Australian Planning Commission [2009] WASAT 127. In his determination, Mr Graham affirmed the decision of the respondent to refuse the appellant's application for subdivisional approval of Lot 51 Eagle Bay Road, Naturaliste. His reasons were published as Zampatti and Western Australian Planning Commission [2009] WASAT 70.

The appellant's application and the decision of the respondent

2 The appellant made an application to the respondent, seeking approval for a plan of subdivision of Lot 51 which consisted of 32.9 hectares, into two lots of 14.66 hectares and 18.27 hectares. The subject land was zoned 'Agriculture' under the Shire of Busselton District Planning Scheme No 20 (DPS 20). The Shire of Busselton opposed the subdivisional application. Government agencies other than the Shire recommended imposing conditions should the subdivision proceed, but without expressing opinions about whether it should proceed or not. The respondent refused to approve the plan of subdivision and gave the following reasons:

(a) The proposal does not comply with the objectives and policies of the 'Agriculture' zone in Council's Town Planning Scheme. The purpose and intent of this zoning is to conserve the productive potential of rural land and to ensure that land is not withdrawn from production or that the potential for land to be productive is not diminished. Subdivision in the manner proposed would create the potential for two agriculturally unsustainable lots, which would be in conflict with the zoning objectives.

(b) The proposal is inconsistent with the Eagle Bay Structure Plan which requires that subdivision of the subject land is to be limited to 'low impact rural subdivision' with a minimum lot size of 40 ha.

(c) The proposal does not comply with the Shire of Busselton's endorsed Local Rural Planning Strategy in that the proposed lot sizes are not suitable for sustainable agricultural use.

(d) The proposal does not comply with the policies and objectives of State Planning Policy 2.5 which seek to prevent 'adhoc' [sic] fragmentation of rural land.

(e) The proposal is inconsistent with State Planning Policy 6.1 where the objective of the 'Agriculture and Rural Landscape' designation for the subject land is to conserve the productive agricultural potential of the land. The proposed lots are of a size which are not of a suitable size for sustainable agriculture.

(f) The proposal is inconsistent with the objective of Development Control Policy 3.4 to retain 'Agriculture' zoned land in sufficiently sized lots for sustainable agricultural use.

(g) Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the 'Agriculture' zone of this locality.

The appellant's application for review by the State Administrative Tribunal

3 The appellant sought a review of the respondent's decision pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (Planning Act). Section 17(1) of the SAT Act brought the matter within SAT's review jurisdiction. The review before Mr Graham was by way of a hearing de novo. See s 27(1) of the SAT Act. In these reasons the reasons of Mr Graham will be referred to as the decision of 'SAT'.

4 The appellant submitted in its review before SAT that:

(a) the subject land had no viable agricultural uses to which it could be put, and that scheme or policy provisions which sought to preserve the subject land for agricultural uses had no proper or relevant application to the subject land;

(b) although the land had 'rural landscape significance', the proposed subdivision did not prejudice that significance, nor in any other way affect landscape values;

(c) although the subject land abutted Eagle Bay Road, only 25% approximately of the land was visible from the road;

(d) the proposed building envelopes were not visible from Eagle Bay Road, and it would not be possible for any dwelling built on the proposed building envelopes to be seen from Eagle Bay Road;

(e) no dwelling constructed on the subject land in the manner proposed would be visible from the Cape Naturaliste lighthouse;

(f) no portion of the subject land was visible from any part of Meelup Bay Road. Further, and in any event, the 'no development zone' indicated on the plan of subdivision was suitable for revegetation which would affirm the desired nature of the landscape and assist in providing a visual buffer from the Meelup Regional Reserve;

(g) the respondent had not particularised how the proposed subdivision would adversely affect the rural landscape values of the subject land;

(h) a two-lot subdivision did not constitute unacceptable fragmentation of rural land or loss of rural character; and

(i) there was no evidence to support the proposition that the subdivision of the land would impact on rural landscape values or produce a poor planning outcome [16].

5 SAT's reasons referred to all of the legislative or policy documents which had to be taken into account and it is not contended otherwise. These included DPS 20 and a policy which the Shire was authorised to make, namely the Shire of Busselton Rural Planning Strategy 2007 (RPS). Under s 241 of the Planning Act, SAT was also required to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application. Relevant State planning policies included the Leeuwin-Naturaliste Ridge Statement of Planning Policy 6.1, the Eagle Bay Structure Plan 2007 and the WAPC Agriculture and Rural Land Use Planning Statement of Planning Policy 2.5 (SPP 2.5). SPP 2.5 applied to all rural and agricultural land in Western Australia and was to be read in conjunction with the last of the relevant policies, namely WAPC Development Control Policy 3.4 - Subdivision of Rural Land.

6 It is not necessary to repeat verbatim all of the relevant provisions of the abovementioned policies which are set out in SAT's reasons for decision. Some of them became important in view of submissions made by the parties and these will be set out in full where necessary. It is only necessary at this stage to say that there were relevant policy provisions which had the objectives of: conserving productive potential of agricultural land; discouraging 'ribbon development' along Caves Road; seeking to ensure that any subdivision of rural land was into lots of a minimum of 40 ha; maintaining and protecting rural land; conserving the 'extraordinary landscape' of the area; and minimising the ad hoc fragmentation of rural land while permitting land which was shown not to be prime agricultural land to be utilised for other purposes not incompatible with adjacent uses. Of particular relevance was the general policy in WAPC Policy DC 3.4 (Subdivision of Rural Land) which stated in cl 3.1 that it is:

WAPC policy that the subdivision of rural and agricultural land for closer settlement (rural-residential and rural small holdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.

7 Evidence was led by the appellant before SAT to prove first, that the unsubdivided subject land had no productive agricultural potential because of a large amount of exposed laterite on the property, and secondly, to prove that the proposed dwellings on the two lots if subdivided, would be surrounded by vegetation making the proposed dwellings unobtrusive from various vantage points. Evidence was also led on the issue of whether subdivisional approval would provide an adverse planning precedent.

8 Although SAT reached its conclusion that the application for review should be dismissed, it made some findings of fact in favour of the appellant. The first finding was that the property, as a single management unit, was not a viable grazing operation and due to the large amount of exposed laterite, had no agricultural potential. Second, it found that every effort had been made to minimise the visual effects of the subdivision on the rural landscape by positioning the building envelopes so that they were not prominent or obtrusive when viewed from various named locations. However, SAT then said that:

[I]f minimising the visual effects of subdivision on the rural landscape was all that it took to achieve an approval, then other rural lots in Busselton and elsewhere could progressively be broken down into smaller lots [80].

9 SAT correctly directed itself that what was also needed was an examination of the policy and statutory context which affected the subject land. It then said:

At the State level, the provisions of SPP 2.5 and DC 3.4, when read in conjunction with one another, present the policy position that the subdivision of rural land should be properly planned through the preparation of local planning strategies and that these strategies should be effected by way of a local planning scheme prior to subdivision. It is suggested that rural smallholdings should range from 4 hectares to 40 hectares.

What is also advocated is that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision should not be permitted.

These policies are underpinned by the LNRSPP, wherein there is a strong emphasis on preserving the landscape and to establish appropriate buffers (such as exists between Dunsborough and Eagle Bay) to avoid the coalescence of settlements.

At the local level, the EBSP suggests that land between Eagle Bay Road and Cape Naturaliste Road be limited to small scale tourism opportunities and low impact subdivision.

Under the RPS, rural smallholdings in Precinct 7 (Naturaliste), which encompasses the subject land, are identified as 'undesirable'. However, the Scheme does indicate that the Shire will, where environmental conditions allow, positively consider subdivision into allotments comprising a minimum of 40 hectares. In this case, the Shire did not support the proposed subdivision [81] - [85].

10 SAT then correctly directed itself, using the words of Barker J in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 [24], that a policy is 'not intended to replace the discretion of the [administrator] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it' [86]. SAT then noted the appellant's submissions and said:

In the applicant's submissions of 16 December 2008, at [24] - [39], the argument is put at [25]:

... that the various statements of policy objectives are designed to achieve outcomes which themselves have become irrelevant as a consequence of the circumstances of the land and the inapplicability of the criteria which dominated the Respondent's original decision to refuse the application...

Although rural residential[,] rural smallholding and urban development are perceived to be 'undesirable', no rationale is advanced to determine, first, why they are undesirable or, secondly, provide a comprehensive and cogent explanation of those factors leading to undesirability which can be distinguished or applied (as the case may be) in the present instance.

The Tribunal would acknowledge that the applicant's submissions in [88] and [89] are worthy of consideration. However, it is the case, as explained in [81] - [85] above, that there is no relevant policy provision that would support the proposal other than a circumstance where subdivision would represent an opportunity to diversify or intensify the agricultural use of the land as outlined in [37] above. That circumstance does not present itself in this case, due to the limited capability of the land for productive agriculture.

Also, it must be said that there is a measure of consistency in the relevant policy documents which effectively argue against isolated rural subdivision proposals of the size contemplated. In other words, an approval could be justifiably construed as being contrary to orderly and proper planning.

On the matter of undesirable precedent, the manner in which this should be assessed is advanced in Nicholls at [67] above.

In that respect, the Tribunal believes that the subdivision is 'not unobjectionable' in that it is contrary to orderly and proper planning and there is, in the view of the Tribunal, more than a mere chance or possibility that there may be other undistinguishable subdivisions.

An examination of the subdivisional pattern in the broad locality, and along Cape Naturalise Road in particular, shows a series of lots in the same order of size or bigger than the subject land where an approval in this instance could encourage those other landowners to unnecessarily attempt to subdivide.

In this specific case, although subdivision may understandably advance the objectives of the landowner, it would not advance the planning objectives of the area. It is only by retaining the existing lot sizes of 'Agriculture' zoned land along Eagle Bay Road that the communities of Eagle Bay and Dunsborough are effectively separated, and that the overall planning objectives for this locality are maintained at this point in time in the planning process [88] - [95].

Application for review by the President and the President's decision

11 Pursuant to s 244 of the Planning Act, the appellant sought a review of SAT's determination refusing the application for subdivision. Section 244 permits the review by a judicial member of a direction, determination or order upon a matter involving a question of law that was made by SAT when constituted without a legally qualified member as defined in s 3(1) of SAT Act. Mr Graham was not such a legally qualified member. The review was conducted by Chaney J the President of the SAT. There were two grounds on which the appellant submitted that SAT erred in law. These were:

(a) in finding that the application should fail because there was no relevant policy provision that would support the proposal; and

(b) in finding that the proposed subdivision was 'not unobjectionable' and therefore contrary to orderly and proper planning.

12 As to the first ground, the President held that the fact that SAT determined there were no relevant policy provisions 'that would support the proposal', could not be read in isolation. Reading SAT's reasons as a whole, it was clear that it had considered the principal elements of the planning framework and determined that the proposal was inconsistent with that framework and therefore contrary to orderly and proper planning: Zampatti and Western Australian Planning Commission [2009] WASAT 127 [17]. The President noted that SAT well understood that the policy framework could be departed from in appropriate circumstances, but found no cogent reasons to do so. The President said that it was apparent from the reasons that SAT did not refuse to grant the approval because it considered there was a need for there to be a relevant policy provision supporting the proposal, but rather it was considering whether there was reason within the policy framework to support it. The President said:

Had there been such a reason, then, presumably, it would have been a consideration in favour of subdivision approval. However, it was within the planning discretion of the Tribunal to both consider whether there was a planning provision in favour of the proposal and to determine that the proposal was contrary to the planning framework and, therefore, warranted refusal [18].

13 As to the second ground, the President said that SAT correctly identified the circumstances in which adverse planning precedent is a relevant planning consideration. He noted that SAT found that the proposal was 'not unobjectionable' in that 'it [was] contrary to orderly and proper planning' [17]. The President noted that SAT found that there was more than a mere chance or possibility that there might be other indistinguishable subdivision applications [19]. The President said that the appellant was in effect, attempting to challenge the findings in relation to whether the adverse planning precedent was a relevant planning consideration [20]. The President considered that SAT's findings were open [20].

14 His Honour concluded that the application for review to him did not raise any question of law concerning the determination. His Honour held that the appellant sought in substance, a different merits result from that arrived at by SAT.

The appellant's application for leave to appeal to this court

15 The appellant seeks leave to appeal to this court pursuant to s 105 of the SAT Act. There were originally two grounds of appeal. They were that the President erred in law by failing to detect two errors of law in the SAT decision. The President should have found that the sessional member erred in law in that he:

(1) failed to identify and/or to have due regard to (as required by s 242(1)(a) of the Planning and Development Act 2005 (WA)) the 'principal criterion' to be used in assessing the applicant's subdivision application prescribed by par LUS 4.10 of the Statement of Planning Policy No 6.1 (the Leeuwin-Naturaliste Ridge Policy) namely whether the proposed subdivision would conserve the productive agricultural potential and rural landscape values of the land to ensure these values would continue to predominate.

(2) The Sessional Member erred in law in that his decision not to allow the proposed subdivision was a decision which was so unreasonable that it was not reasonably open and was irrational and illogical.

The particulars in support of the second ground read:

(a) the proposed subdivision would have no effect upon preservation of the productive agricultural potential of the land, as the land did not have any such potential (as conceded by the respondent and found by the sessional member);

(b) the proposed subdivision would not adversely affect the rural landscape values of the land (as conceded by the respondent and found by the sessional member); and

(c) the proposed subdivision would not have any precedent effect for other subdivision applications having regard to those particulars and the existence of surrounding lots of sizes comparable to the subdivided lots which were proposed.

16 At the hearing of this appeal, a third ground of appeal was added which read:

The President of the State Administrative Tribunal erred in law in that the President did not conduct a hearing de novo of the decision of a sessional member of the Tribunal as required by s 27 of the SAT Act, alternatively did not conduct a review in accordance with s 244 of the Planning Act. The President should have conducted such a hearing alternatively such a review.

17 Although it might seem logical to begin with the nature of the appeal before the President, I will deal with the grounds in the order set out above, because the second part of the third ground has to be considered in light of the issues and whether the case involved a question of law.

18 The Leeuwin-Naturaliste Ridge Statement of Planning Policy 6.1 was a State planning policy to which SAT was required to have due regard by reason of s 241 of the SAT Act. Clause LUS 4.10 in that policy read:

In areas designated Agriculture and Rural Landscape, conserving productive agricultural potential and rural landscape values will be the principal criterion used in assessing subdivision applications and proposed changes of land use, to ensure these values continue to predominate.

19 The conservation of productive agricultural potential and rural landscape values under this Policy 6.1 are the two principal criteria (rather than one criterion) which are to be used when applying this policy document in assessing subdivision applications to 'ensure these values continue to predominate'. Referring to these criteria as 'principal' criteria produces a result similar to cases where a consideration, which a decision maker is bound to take into account, is regarded as a 'fundamental' element in the decision making process: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329; or the 'focal point' of the decision making process: Evans v Marmont [1997] NSWSC 331; (1997) 42 NSWLR 70, 79 - 80. However, it is important to bear in mind that this policy document was only one of several policy documents to which SAT was bound to have regard.

20 SAT found that the land had no productive agricultural potential. This was a finding the appellant had asked SAT to make and it succeeded on that point. Thus, in that respect, part of the principal criterion in LUS 4.10 had no application because there was no productive agricultural potential to conserve in relation to this land.

21 Whether the proposed subdivision would conserve rural landscape values was clearly a matter of principal concern to SAT. It heard evidence on the point and dedicated a significant part of its reasons to the point before finding that the location of buildings would be such that they would not be visible from various vantage points and that every effort had been made to minimise visual effects on the rural landscape. This finding of fact was in favour of the appellant, it was taken into account and assessed along with other relevant considerations.

22 The appellant's submission that SAT failed to have 'due regard' to this part of the principal criterion is unsustainable. It was the subject of detailed consideration by SAT. The fact that the criterion in LUS 4.10 is a 'principal' criterion means the highest in rank. The use of the word 'principal' therefore means that other considerations remain relevant, although they will be of lesser importance. The description of the criterion as a principal criterion does not mean that if landscape values are preserved, that an application for subdivision is bound to succeed. Other considerations may be taken into account and they may lead to a negative outcome. That was the case here. SAT took into account the policy position that subdivision of rural land should be properly planned through the preparation of local planning strategies and local planning schemes prior to subdivision; that there was a policy that fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision should not be permitted; that there was a policy to avoid the coalescence of the settlements of Dunsborough and Eagle Bay; and that the Town Planning Scheme indicated that positive consideration should be given to allotments of a minimum size of 40 ha, thereby implicitly indicating that positive consideration would not be given to subdivisions into allotments below 40 ha in size. SAT also considered that approval would provide an adverse planning precedent. It was open to SAT to decide that these considerations overwhelmed the principal criterion of preservation of rural landscape values.

23 This ground therefore has no merit and should be dismissed.

24 The particulars to this ground state, in effect, that the decision of SAT was illogical and unreasonable because a finding was made by SAT that: the subject land had no productive agricultural potential; the proposed subdivision would not adversely affect the rural landscape values of the land; and surrounding lots were of comparable size to the proposed subdivided lots. This is an unmeritorious ground because it seems to assume that once these three points were made out, the appellant had to succeed. That was not so, as explained above. The three points were clearly points in favour of subdivision but they were not the only relevant points to be considered. SAT took into account all of the relevant legislative and policy provisions to which it had to pay due regard, and the decision it reached was rational and it was a decision which was open on the material before it. This ground should be dismissed.

25 An appeal to this court under s 105 of the SAT Act is permitted only 'on a question of law'. The meaning of the phrase 'on a question of law' is settled in this court: see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] (Buss JA, Wheeler & Pullin JJA agreeing).

26 Under s 244, a judicial member of SAT may of its own motion, or upon application, review a direction, determination or order that was made by SAT when constituted without a legally qualified member 'upon a matter involving a question of law'. When examining the nature of the review under this section as this ground requires, it is necessary to consider the words 'review' and the phrase 'involving a question of law'. The word 'review' is a word of wide meaning. In Tucker for Narnoobinya Family Group v Aboriginal and Torres Strait Islander Commission (2004) FCA 134, French J (as he then was) said, when speaking of a statutory review provision:

The word 'review' is defined in the Shorter Oxford English Dictionary relevantly as follows:

'1. To see or behold again.

2. To view, inspect or examine a second time or again.

...

4. Law. To submit (a decree act, etc) to examination or revision.'

The ordinary legal meaning of the word is ambulatory. Taken in isolation, it does not define the mechanisms for examination or revision that may be applied. These can range from rehearing on the merits with new evidence to an examination of a questioned decision on limited grounds of error of law or process based on the materials considered by the primary decision-maker. The latter class of review is more readily applicable to judicial than to administrative action. But as the High Court said in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 261, the word 'review' has 'no settled pre-determined meaning; it takes its meaning from the context in which it appears'. It encompasses judicial review on grounds of error of law, excess of power and breach of the rules of natural justice. It also encompasses administrative reconsideration in the light of changed circumstances - Bannister v See [1982] FCA 82; (1982) 42 ALR 78 at 81 (Toohey J). As was said in Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 (at 194):

The word 'review' is not a word of limitation; it is a word of great width. The word may have different meanings depending upon its context [45] - [46].

See also Cabal v United Mexican States (No 3) [2000] FCA 1204; (2000) 186 ALR 188 [110] ff. The word 'review' therefore requires consideration of the context in which the word appears. In the first place it is relevant that the legislative framework found in the Planning Act and the SAT Act provides that a review before SAT is a hearing de novo (by reason of s 27 of the SAT Act) but does not so provide in relation to a review under s 244 of the Planning Act. This is likely to have been a deliberate omission because by the time a case reaches the point where an applicant seeks a review under s 244, an applicant will have had the opportunity to put forward a case of its choosing to the respondent and then be given a further opportunity to put forward the same or a different case before SAT. It would be an expensive and wasteful procedure to allow a third merits review before a judicial member. Secondly, s 244 states that a the review is only permitted if the matter involves a question of law. That makes it clear that the right of review is not to open up a fresh merits review. The expression is similar to the phrase 'involving a question of law', which was discussed in Lombardo v Federal Commissioner of Taxation [1979] FCA 66; (1979) 40 FLR 208, 219, where Toohey J was dealing with s196(1) of the Income Tax Assessment Act 1936 (Cth) which provided for an appeal to a Supreme Court 'from any decision of the Board that involves a question of law'. His Honour asked rhetorically what was meant by a statement that a decision of a Board 'involves a question of law'. His Honour said:

When the question is itself expressly stated, there will be no difficulty in saying that the question was involved in the Board's decision. But the fact that a question is not expressly referred to does not mean that it is not so involved. The Concise Oxford Dictionary's definition of 'involved' includes 'imply' and 'entail'. If a perusal of a Board's decision shows some step, although not expressly referred to, must have been taken by the Board in arriving at its conclusion, that matter was involved in the decision. And if the matter, on examination, is shown to be a question of law, then a question of law will have been involved.

27 The result is that an applicant for review by a judicial member must demonstrate that there has been some step taken by the sessional member in arriving at its conclusion which involved a 'question' of law. It is not necessary to show that there was an error of law before the applicant has a right to a review which 'arose for decision': Krew v Federal Commissioner of Taxation (1971) 45 ALJR 324, 325; XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; (1971) 124 CLR 343. However,

there must have been a 'question' of law. If the law is referred to but the parties were not in issue about the law, then there will be no 'question' of law. In this case, some findings of fact had to be made about whether the land was viable for agricultural purposes and whether buildings might be visible from various viewpoints. They raised questions of fact. The law was referred to (that is the legislative framework and the law concerning adverse planning precedent) but it was not in issue and there was therefore no question of law involved. It may be added that if it can be shown that there had been a matter involving a question of law in the proceedings, then the whole decision and not merely the question of law is open to review: Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148, 151 (Knox CJ, Gavin Duffy, Powers & Starke JJ); Krew (326); XCO (348).

28 If the issues involved in the case under review were only issues of fact, then there will be no question of law involved and there will be no right of review. For an example see Federal Commissioner of Taxation v Shaw [1950] HCA 2; (1950) 80 CLR 1 (Latham CJ). Finally, it is a prerequisite of jurisdiction that the question of law identified must be really, and not colourably involved: Fisher v Deputy Commissioner of Taxation (1966) 40 ALJR 328.

29 The finding made by SAT about agricultural potential was a finding of fact, the finding about preservation of landscape values was a finding of fact, the finding about there being a chance that the approval would create an adverse planning precedent was a finding of fact. Before SAT, the law, that is the legislative and policy provisions, was not in issue and therefore not in question. The decision made in the exercise of SAT's discretion did not involve a question of law.

31 Leave to appeal should be granted but the appeal should be dismissed.

32 BUSS JA: The background facts and the grounds of appeal are set out in the proposed reasons of Pullin JA. It is unnecessary for me to repeat them.

33 Section 105(1) of the State Administrative Tribunal Act 2004 (WA) provides that a party to a proceeding may appeal from the decision of the tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal. By s 105(2), the appeal can only be brought on a question of law.

34 The power to grant leave is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [14] - [18] (Buss JA, Wheeler & Pullin JJA agreeing).

35 I agree with Pullin JA, for the reasons he gives, that ground 1 of the appeal fails.

36 Also, I agree with Pullin JA, for the reasons he gives, that ground 2 of the appeal fails.

37 In my opinion, it is unnecessary, in the present case, to consider whether there is any substance in any of the contentions embodied in ground 3 of the appeal. Even if there is any substance in any of those contentions:

(a) grounds 1 and 2 of the appeal are hopeless; and

(b) on my examination of the reasons of the senior sessional member, Mr L Graham, in Zampatti and Western Australian Planning Commission [2009] WASAT 127 and of the submissions made to Chaney J on the review under s 244 of the Planning and Development Act 2005 (WA), the appellant's case is unmeritorious, and he would have no reasonable prospect of success if a judicial member of the tribunal were to carry out a review of Mr Graham's determination of the kind contended for in ground 3.

38 I am satisfied that, in the present case, the interests of justice are against this court granting leave on any of the grounds of appeal.

39 Leave to appeal should be refused, and the appeal should be dismissed.

40 The appellant (Mr Zampatti) requires the leave of this court under s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), to challenge a review decision of the President of the State Administrative Tribunal (SAT): see Zampatti and Western Australian Planning Commission [2009] WASAT 127, delivered 26 June 2009. The

President's review decision confirmed the respondent's refusal of subdivisional approval to Mr Zampatti to divide his current 32.9 ha holding at Eagle Bay into two smaller lots.

41 The President's decision was the result of a review process under s 244 of the Planning and Development Act 2005 (WA) (the P&D Act 2005) by which a judicial member of the SAT is empowered to review a decision of the SAT if the SAT has been constituted without a legally qualified member. The original SAT decision was made here by a Senior Sessional Member who was not legally qualified (the original SAT decision).

42 A party can appeal a decision of the SAT to the court on a question of law, provided the court grants leave to appeal: SAT Act s 105(1) and s 105(2). The basis upon which this court will assess a grant of leave to appeal is whether the grant is in the interests of justice: see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18] (Buss JA, Wheeler & Pullin JJA agreeing), referring to a decision of the Victorian Court of Appeal, Secretary to the Department of Premier & Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

43 The application for leave was referred to the hearing of the appeal on the orders of Newnes JA on 8 September 2009.

44 In seeking leave to appeal in this court, Mr Zampatti advances three proposed grounds of appeal seeking to establish errors of law in the s 244 review decision by the President (Chaney J). The first of those grounds seeks to raise 'Wednesbury' unreasonableness, alternatively 'irrationality', against the original SAT decision. He correlatively contends that the President also erred in law in not upholding that contention.

45 The two other proposed grounds intersect. Ground two was added during the hearing of the argument on 4 February 2010. Essentially the second ground seeks to contend that the s 244 judicial members' review conducted by the President was conducted on too narrow a basis. It became necessary for Mr Zampatti to advance this second ground because his remaining ground, essentially the cornerstone of his whole challenge, seeks to identify an error of law on a basis that the original SAT decision overlooked or under weighed the significance of a component of what was, in effect, a State planning policy. It is said that there was error of law by the Senior Sessional Member in failing to pay proper regard to the provisions of s 241(1)(a) of the P&D Act 2005. Unfortunately, this cornerstone ground as now advanced, was not put to the President on the s 244 review application, or at least not put in the terms now formulated. The appellant referred to the second ground as ground A and the cornerstone ground as ground B1: see page 33.

46 In ordinary circumstances, it would present as unusual to seek this court's leave to appeal in circumstances where the question or error of law sought to be raised before it was not raised in the tribunal immediately below. But Mr Zampatti, by the second ground of appeal, seeks to show that his cornerstone s 241(1)(a) ground was bound up within a 'matter' that was before the President as a part of the s 244 review, although not explicitly presented. Mr Zampatti contends then that he ought to be permitted to advance his cornerstone ground, despite the somewhat unusual circumstances.

47 In advancing the second ground Mr Zampatti points out the terms of s 244(1) of the P&D Act 2005, setting down a mechanism of review upon a matter 'involving a question of law' from a decision when the SAT has not been constituted with a legally qualified member. Reliance is then placed upon a line of case authority establishing that statutory appeals which are restricted in some way by a need to establish legal error generally fall into three broad categories, with the broadest category of appeal arising in circumstances where the statute (as is the case under s 244) uses the expression 'involves a question of law'. In that situation, it is the whole case, not merely the question of law, which is to be the subject of the appeal (or review): see Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; (1928) 41 CLR 148; Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302, 303; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 [47] - [70] (Allsop J); HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 [84] (Basten JA).

48 By s 105(2) of the SAT Act an appeal to this court may only be brought 'on a question of law'. In Paridis v Settlement Agents Supervisory Board Buss JA (with whom Wheeler & Pullin JJA agreed), observed:

Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law [53].

49 It is important to keep in mind that the decision under consideration by this court, from the perspective of a potential grant of leave to appeal under s 105(2) of the SAT Act, is only the decision of the President. The Court of Appeal is not a vehicle for undertaking any further process of statutory review concerning the original SAT decision .

50 An issue emerged during argument to this court concerning the precise scope of the review function that was required to be performed by a judicial member under s 244(1) of the P&D Act 2005. Section 244 provides:

(1) The State Administrative Tribunal constituted by a judicial member may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a matter involving a question of law that was made by the State Administrative Tribunal when constituted without a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004.

(2) The State Administrative Tribunal constituted by a judicial member may -

(a) affirm the direction, determination or order; or

(b) revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter.

(3) An application for a review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations and rules made under the State Administrative Tribunal Act 2004, by a party within one month after the direction, determination or order is given to the party.

[(4) deleted]

(5) A review by the State Administrative Tribunal -

(a) of its own motion is not to be made later than one month after the direction, determination or order is given to the party; or

(b) on the application of a party is not to be made later than one month after the application is made.

(emphasis added)

51 The emergence of this s 244 issue only during the argument gave rise to the oral application of Mr Zampatti's counsel for leave to add the second ground, directly raising the scope of a s 244(1) review. The application was ultimately not opposed and the court allowed argument to proceed on the issue. I will set out the new ground in due course. In essence, however, it may be observed at this point that:

(a) use of the phrase 'involving a question of law' points toward a broader statutory right of review than an appeal which is limited merely to a 'question of law': see Paridis v Settlement Agents Supervisory Board [53]; HIA Insurance Services v Kostas [83] - [87];

(b) section 244(1) does not, by its terms, stipulate a need to demonstrate an error, or errors, of law. However, that requirement is, I think, reasonably implied in the nature of the s 244 review process: see HIA Insurance Services v Kostas [84];

(c) the judicial member of the SAT in conducting a s 244(1) P&D Act 2005 review is concerned with a direction, determination or order upon a 'matter' involving a question of law. The word 'matter', used in a constitutional sense, or generally, carries a broad import: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457, 507 (Mason J);

(d) section 244 review powers may be exercised upon the judicial member's own motion (see s 244(1)), or upon application. A potential unilateral exercise of a review power by the judicial member points towards a degree of flexibility in this further process of review under s 244; and

(e) the corrective remedial powers conferred under s 244(2) are wide, equating in breadth to the corrective powers of this court by s 105(9) of the SAT Act.

52 The court afforded an opportunity to the parties to submit further written materials in augmentation of their oral and written submissions at the hearing. Further written submissions were received on 10 February 2010 from Mr Zampatti and on 18 February 2010 from the respondent.

53 At base, however, the second ground raised by Mr Zampatti is essentially a platform for an advancement of the cornerstone ground and its asserted error of law. Error is attributed both to the original SAT decision and to that of the President, in not affording 'due regard' (applying the words of s 241(1) of the P&D Act 2005) to the content of Land Utilisation Strategy 4.10 (LUS 4.10) - a component of Statement of Planning Policy 6.1 (also referred to as the Leeuwin-Naturaliste Ridge State Planning Policy (LNRSPP), published in the Western Australian Government Gazette on Friday, 18 September 1998):

(1) In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including -

(a) any State planning policy which may affect the subject matter of the application; and

(b) any management programme for the development control area in force under the Swan and Canning Rivers Management Act 2006 Part 4 that may affect the subject matter of the application.

54 LUS 4.10, within Statement of Planning Policy 6.1, provides:

In areas designated Agriculture and Rural Landscape, conserving productive agricultural potential and rural landscape values will be the principal criterion used in assessing subdivision applications and proposed changes of land use, to ensure these values continue to predominate.

(emphasis added)

55 The cornerstone ground focuses on the phrase 'the principal criterion' in LUS 4.10, as what is said to be a vital part of that Statement of Planning Policy 6.1.

56 By s 25(a) of the P&D Act 2005, Statements of Planning Policy in force under the Town Planning & Development Act 1928 (WA) (the Former Planning Act) immediately before the new P&D Act 2005 came into operation are to continue in force as a 'State planning policy' and to have effect accordingly. Therefore Statement of Planning Policy 6.1 was continued in force by the P&D Act 2005. It carried force as a State planning policy (SPP) within the overall new planning Acts regime of SPPs as laid down under Pt 3 of the P&D Act 2005, to which I will refer.

57 It will be recalled that s 241(1) requires that 'due regard' be afforded to 'relevant planning considerations', including (by s 241(1)(a)) a SPP, which may effect the subject matter of an application.

58 At root, the cornerstone ground contends that 'due regard' was not paid to LUS 4.10 as the relevant planning consideration in the original SAT decision, or in the decision of the President.

59 The SAT (with the SAT being constituted for the purposes of conducting its review by Senior Sessional Member, Mr Lloyd Graham) conducted a review, which proceeded wholly on the documents: see Zampatti and Western Australian Planning Commission [2009] WASAT 70, delivered 17 April 2009. Mr Graham was not a legally qualified member of the SAT.

60 The reasons of Mr Graham were a culmination of a SAT review process directed at an underlying decision of the respondent refusing Mr Zampatti's proposed subdivision. Mr Zampatti had first applied to the respondent, under s 135 of the P&D Act 2005, for subdivisional approval to divide Lot 51 into smaller lots of area 14.66 ha and 18.27 ha, respectively. The respondent refused that initial application on 25 August 2008.

61 Mr Zampatti then exercised his right of statutory administrative review to the SAT against the respondent's refusal decision. The right of review to the SAT is pursuant to s 251(1) of the P&D Act 2005.

62 The review conducted by Mr Graham was governed by s 17 and s 18 of the SAT Act. It was a review hearing de novo (s 27(1) SAT Act). In other words, it was a review hearing on the merits, addressing afresh all arguments both for and against Mr Zampatti's subdivisional application over his Lot 51. As to the legal character of a de novo appeal (or review): see Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 620 (Mason J); Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ).

63 The respondent's reasons rejecting Mr Zampatti's subdivision application for Lot 51 are found within the SAT's reasons, at [8]. Seven factors were identified by the respondent:

1. The proposal does not comply with the objectives and policies of the 'Agriculture' zone in Council's Town Planning Scheme. The purpose and intent of this zoning is to conserve the productive potential of rural land and to ensure that land is not withdrawn from production or that the potential for land to be productive is not diminished. Subdivision in the manner proposed would create the potential for two agriculturally unsustainable lots, which would be in conflict with the zoning objectives.
2. The proposal is inconsistent with the Eagle Bay Structure Plan [EBSB] which requires that subdivision of the subject land is to be limited to 'low impact rural subdivision' with a minimum lot size of 40ha.
3. The proposal does not comply with the Shire of Busselton's endorsed Local Rural Planning Strategy [LRPS] in that the proposed lot sizes are not suitable for sustainable agricultural use.
4. The proposal does not comply with the policies and objectives of State Planning Policy 2.5 [SPP 2.5] which seek to prevent adhoc [sic] fragmentation of rural land.
5. The proposal is inconsistent with State Planning Policy 6.1 [SPP 6.1] [the LNRSPP] where the objective of the 'Agriculture and Rural Landscape' designation for the subject land is to conserve the productive agricultural potential of the land. The proposed lots are of a size which are not of a suitable size for sustainable agriculture.
6. The proposal is inconsistent with the objective of Development Control Policy 3.4 [DCP 3.4] to retain 'Agriculture' zoned land in sufficiently sized lots for sustainable agricultural use
7. Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Agriculture Zone of this locality.

64 The SAT review ultimately sustained the rejection of the subdivision application. Importantly however, of the seven considerations identified above in the respondent's refusal decision, only factors 2, 4 and 7 remained live considerations standing against the subdivision application in the SAT reasons of Mr Graham.

65 Two essential matters established in Mr Graham's review, which now underscore Mr Zampatti's main argument to this court, were factual determinations that:

(a) Lot 51 as a single management unit was not 'a viable grazing operation and, due to large amount of exposed laterite, has no agricultural potential' [76]; and

(b) upon the aesthetics of the proposed subdivision of Lot 51, that 'every effort [had] been made to minimise the visual effects of the subdivision on the rural landscape' [79].

66 Mr Graham's decision maintained that the proposed subdivision application over Lot 51 be refused.

67 Mr Graham explained in his conclusions at [80] - [91]:

1. However, if minimising the visual effects of subdivision on the rural landscape was all that it took to achieve an approval, then other rural lots in Busselton and elsewhere could progressively be broken down into smaller lots. What is also needed is an examination of the policy and statutory context which affects the subject land.
2. At the State level, the provisions of SPP 2.5 and DC 3.4, when read in conjunction with one another, present the policy position that the subdivision of rural land should be properly planned through the preparation of local planning strategies and that these strategies should be effected by way of a local planning scheme prior to subdivision. It is suggested that rural smallholdings should range from 4 hectares to 40 hectares.
3. What is also advocated is that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision should not be permitted.
4. These policies are underpinned by the LNRSPP, wherein there is a strong emphasis on preserving the landscape and to establish appropriate buffers (such as exists between Dunsborough and Eagle Bay) to avoid the coalescence of settlements.
5. At the local level, the EBSP suggests that land between Eagle Bay Road and Cape Naturaliste Road be limited to small scale tourism opportunities and low impact subdivision.
6. Under the RPS [Regional Planning Scheme], rural smallholdings in Precinct 7 (Naturaliste), which encompasses the subject land, are identified as 'undesirable'. However, the Scheme does indicate that the Shire will, where environmental conditions allow, positively consider subdivision into allotments comprising a minimum of 40 hectares. In this case, the Shire did not support the proposed subdivision.
7. In considering a proposed subdivision, such as that contemplated in this case, the Tribunal is confronted with a range of State and local policies which must be assessed. However, as explained in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433, Justice Barker noted at [24] that a policy is 'not intended to replace the discretion of the [administrator] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it'.
8. Again, at [24], His Honour noted that 'the relevant consideration in many applications will by why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application'.
9. In the applicant's submissions of 16 December 2008, at [24] - [39], the argument is put at [25]:

... that the various statements of policy objectives are designed to achieve outcomes which themselves have become irrelevant as a consequence of the circumstances of the land and the inapplicability of the criteria which dominated the Respondent's original decision to refuse the application ...

Although rural residential[,] rural smallholding and urban development are perceived to be 'undesirable', no rationale is advanced to determine, first, why they are undesirable or, secondly, provide a comprehensive and cogent explanation of those factors leading to undesirability which can be distinguished or applied (as the case may be) in the present instance.

1. The Tribunal would acknowledge that the applicant's submissions in [88] and [89] are worthy of consideration. However, it is the case, as explained in [81] - [85] above, that there is no relevant policy provision that would support the proposal other than a circumstance where subdivision would represent an opportunity to diversify or intensify the agricultural use of the land as outlined in [37] above. That circumstance does not present itself in this case, due to the limited capability of the land for productive agriculture.
2. Also, it must be said that there is a measure of consistency in the relevant policy documents which effectively argue against isolated rural subdivision proposals of the size contemplated. In other words, an approval could be justifiably construed as being contrary to orderly and proper planning.

68 Mr Graham makes direct reference to two SPPs in his reasons, or their earlier equivalent. At [81] he refers to SPP 2.5 (which he earlier examined at [42] - [46] of his reasons). At [83], Mr Graham refers to the LNRSPP (Statement of Planning Policy 6.1) (which he had considered earlier at [29] - [39] of his reasons).

69 I have observed that Statements of Planning Policy enacted under the Former Planning Act that remained in operation prior to commencement of the P&D Act 2005, continued to have force as SPPs under the regime established by s 25 of the P&D Act 2005.

70 SPPs are instruments of the respondent which are governed by Pt 3 of the P&D Act 2005 (s 25 - s 32 inclusive).

(1) The Commission may, with the approval or on the direction of the Minister, prepare State planning policies.

(2) A State planning policy is to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments.

(3) Despite subsection (2), a State planning policy may make provision for any matter which may be the subject of a local planning scheme.

(4) A State planning policy may be prepared so as to apply -

(a) generally or in a particular class of matter or in particular classes of matter; and

(b) throughout the State or in a specified portion or specified portions of the State, whether or not a local planning scheme has been prepared or is being prepared in that portion or those portions of the State.

72 It may be seen from s 26 and Pt 3 of the P&D Act, that SPPs are usually instruments directed towards 'broad general planning' considerations (s 26(2)). They facilitate a coordination of planning throughout Western Australia by local government (s 26(2)), although a SPP can make provision for a matter which may be the subject of a local planning scheme (s 26(3)).

73 SPPs are to be contrasted with Region Planning Schemes (RPSs) or Local Planning Schemes (LPSs), each of which are respectively dealt with under Pt 4 and Pt 5 of the P&D Act 2005.

74 SPPs are prepared with the approval, or on the direction of, the Minister. They are published in the Government Gazette after approval by the Governor, with force and effect from the time of publication.

75 The reasons of Mr Graham made reference to a WAPC Policy DC 3.4 (subdivision of rural land) at [81]. As to this Policy, he had earlier explained at [47] - [48]:

1. The general policy requirement is explained under cl 3.1:

It is WAPC policy that the subdivision of rural and agricultural land for closer settlement (rural - residential and rural smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.

It is WAPC policy that, in the absence of the planned provision for closer settlement and more intensive agricultural uses, existing large rural lots be retained for broadacre and traditional forms of farming and that the fragmentation of rural land and loss of rural character through piecemeal, unplanned subdivision not be permitted.

76 WAPC policy DC 3.4 is also to be read in conjunction with SPP 2.5 (see [42] of Mr Graham's reasons).

77 Mr Graham also mentions RPS 2007, concerning rural smallholdings in Precinct 7 (Naturaliste), at [26] - [28] and [85] of his reasons.

78 It will be observed that Mr Graham expressly mentions the 'due regard' requirement of s 241(1) P&D Act 2005 at [30], having noted that the LNRSPP (Statement of Planning Policy 6.1) was continued in force under s 25 of the P&D Act 2005. At [39], he remarks upon LUS 4.10 as a policy 'relating to agriculture and rural landscape'.

First ground: Unreasonableness and irrationality

79 One of the three grounds of appeal sought to be put to this court contends that the Senior Sessional Member erred in law on the basis that his decision not to allow the proposed subdivision was so unreasonable, it was not reasonably open, and that the decision was irrational and illogical. That challenge to the SAT's reasons was put to the President in one sentence at par 54(c) in written submissions of 19 May 2009 filed by the solicitors for the applicant, in terms that the Tribunal had:

reached a decision that was manifestly unreasonable as a consequence of all of the foregoing (see Re Commissioner of Taxation of the Commonwealth of Australia v Marita McCabe [1990] FCA 389; (1990) 26 FCR 431 at 23 - 28 and 34).

80 The ground advanced to this court, correlatively contends that the President also erred in the outcome of his s 244 review, in not upholding the submission as to the unreasonableness of the SAT decision of Mr Graham.

81 The challenge invokes the word 'unreasonableness' understood in a legal sense by reference to a line of case authority, commencing with Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 1 KB 223, where Lord Green MR famously observed:

Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ, in Short v Poole Corporation, 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 been described as being done in bad faith; and, in fact, all these things run into one another (229).

82 The ground also seeks to designate the Tribunal's decision as irrational and illogical, by reference to the High Court's decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59. As to that decision, I note an important observation by McLure JA in Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143, where her Honour said:

It remains to be seen whether the irrationality/illogicality test for judicial review of administrative action is materially different than the Wednesbury unreasonableness test or materially different than the test usually applied to appeals limited to errors of law [109].

83 The President's reasons do not appear to directly address this one sentence written submission against the Sessional Member's reasons by reference to the words 'manifestly unreasonable'.

84 Putting to one side a question of whether a challenge directed against the President's decision (as opposed to a challenge against the SAT decision) can actually raise a 'question of law' (as to which I express no view), I would, in any event, reject the unreasonableness/irrationality challenge directed against the Tribunal's reasons.

85 It is manifest from a brief perusal of Mr Graham's comprehensive reasons, the essential components of which I extracted above, that there was a more than rational basis explained for the decision rejecting the subdivision application: see [80] - [91] of reasons. A strong disagreement over the merits of those reasons raises other issues entirely.

86 The challenge under the 'Wednesbury' ground is without substance and must be rejected. It provides no basis for a grant of leave to appeal from this court.

The President's reasons on the s 244 review

87 At [9], the President sets out the grounds annexed to the initiating review application of 19 May 2009. Three grounds were raised on the s 244 application for review. One ground addressed only issues of costs, as dealt with by the SAT. That issue is not pursued before this court. Excising that ground, the annexure to the s 244 initiating application reads:

The applicant submits that the Tribunal erred in law in finding that:

...

(b) the application should fail because there is no relevant policy provision that would support the proposal;

(c) the proposed subdivision is not unobjectionable and therefore contrary to orderly and proper planning.

88 On ground (b) above, as put to the President, the submissions of Mr Zampatti's solicitors may be seen to refer to a number of different planning policies, including District Planning Scheme (DPS) No 20, RPS 2007, LNRSPP (Statement of Planning Policy 6.1), the Eagle Bay Structure Plan (EBSP) and WAPC Policy DC 3.4. Presumably all those policies were mentioned to the President on a basis that they were relevant to arguments put on the s 244 review.

89 The essence of the ground (b) submission developed on the s 244 review was encapsulated under [25] -[ 27] of Mr Zampatti's written submissions and put to the President, in these terms:

1. The Tribunal erred in law in that it took into account an irrelevant consideration (namely, the need for there to be a relevant policy provision supporting the proposal) and failed to take into account a relevant consideration, namely that the policy framework adverted to by the Tribunal makes it clear that the policies are intended to achieve outcomes which are irrelevant, having regard to the nature of the proposed subdivision of the land.
2. The evidence is demonstrably clear that the loss of viable agricultural land and an adverse impact on the visual amenity are factors which do not apply to the proposed subdivision of the land.
3. To the extent, therefore, that any statutory provision or policy seeks to achieve those aims, then any provision to that effect has no application to determination of the present position.

90 The error submission in the s 244 review submission can be seen to address multiple planning policies. It contends that there did not need to be any relevant policy provision supporting the subdivision proposed for Lot 51. The agricultural unviability of Lot 51, coupled with relatively inoffensive aesthetics in what was proposed, meant (so it was argued) that no relevant policy provisions were engaged raising any relevant concerns. The end consequence, so put, was that there was no policy obstacle to thwart subdivisional approval.

91 The President dealt with this argument in his reasons at [15] - [18], observing:

1. Mr Zampatti emphasised the following words in the reasons at [90]:

[T]here is no relevant policy provision that would support the proposal other than a circumstance where subdivision would represent an opportunity to diversify or intensify the agricultural use of the land as outlined in [37] above.

1. Mr Zampatti submitted that the Tribunal erred in law:

... in that it took into account an irrelevant consideration (namely, the need for there to be a relevant policy provision supporting the proposal) and failed to take into account a relevant consideration, (namely, that the policy framework adverted to by the Tribunal makes it clear that the policies are intended to achieve outcomes which are irrelevant having regard to the nature of the proposed subdivision of the Land).

1. However, the words in the reasons at [90] emphasised by Mr Zampatti cannot be read in isolation and must be understood as part of the reasons expressed at [81] - [91]. It is clear, when those paragraphs are read as a whole, that the Tribunal properly considered the principal elements of the planning framework and determined that the proposal was inconsistent with the framework and, therefore, contrary to orderly and proper planning. It is apparent from [86] ­ [87] that the Tribunal understood that the policy framework could be departed from in appropriate circumstances. However, it found no cogent reason to do so.
2. It is also apparent from [90] that the Tribunal did not refuse to grant subdivision approval because it considered that there was a need for there to be a relevant policy provision supporting the proposal, but rather, the Tribunal was considering whether there was a reason within the policy framework to support the proposal. Had there been such a reason, then, presumably, it would have been a consideration in favour of subdivision approval. However, it was within the planning discretion of the Tribunal to both consider whether there was a planning provision in favour of the proposal and to determine that the proposal was contrary to the planning framework and, therefore, warranted refusal.

92 In my view, the President considered and properly rejected the s 244 ground (b) submission that error had manifested by Mr Graham assessing that there needed to be some policy provision or platform to support subdivisional proposal. His Honour's analysis rejecting that contention, particularly at [18] of his reasons, was clearly correct. That disposed of the irrelevant consideration argument.

93 But a second basis of grievance found at [25] of the written submissions put to the President had raised an allied, but distinct, argument. This was a challenge of failing to take into account a relevant consideration, on a basis that 'the policy framework adverted to by the Tribunal makes it clear that the policies are intended to achieve outcomes which are irrelevant having regard to the nature of the proposed subdivision of the land'.

94 This further component of challenge in the par 25 submission did not identify any particular planning policy as paramount in the Tribunal's overall evaluation. Rather it only referred to a general policy 'framework' - which Mr Zampatti contended, by reference to the land's agricultural unviability and inoffensive aesthetics, showed that no policy concerns were engaged or infringed.

95 In my view, the President implicitly dealt with and rejected this correlative argument, raising the challenge of Mr Graham taking into account an irrelevant consideration, by the observation that 'the Tribunal properly considered the principal elements of the planning framework and determined that the proposal was inconsistent with the framework and, therefore, contrary to orderly and proper planning' [17]. The inconsistency identified by the President as between the proposal and the 'planning framework' carried a necessary rejection of the allied argument in the written submission of Mr Zampatti that policy outcomes sought to be achieved under that policy framework were essentially irrelevant to Mr Zampatti's subdivision proposal.

96 The President also dealt with a remaining ground (c), as to an asserted error by the SAT in concluding that the proposed subdivision was contrary to orderly and proper planning. This challenge was rejected by the President at [20] as follows:

It is apparent that Mr Zampatti seeks, in substance, to challenge the Tribunal's findings in relation to whether adverse planning precedent was a relevant planning consideration. However, having correctly identified the test for relevance, it was within the sole province of the Tribunal to make the findings. Furthermore, the findings made at [93] and [94] of the reasons were reasonably open, having regard to the discussion and findings in relation to the planning framework at [81] - [91] and the existence of other lots of comparable or larger size in the locality.

In my view, his Honour's rejection of ground (c) was also correct.

97 The President's reasons do not address what is now sought to be raised before this court as Mr Zampatti's cornerstone ground, reliant upon the asserted force of 241(1)(a) of the P&D Act 2005. As I have said that argument simply was not made to the President. I can discern nothing addressing s 241(1)(a) within the written submissions put to him. The s 244 review was also conducted wholly on the papers. So it is hardly surprising that there is nothing in his Honour's reasons addressing what I assess to be this significantly distinct argument.

98 The cornerstone ground, raising the significance of an overlooked principal criterion subsisting in one policy document (having the force of a SPP) is, on my assessment, inconsistent with the thrust of what was argued before the President under the s 244 review, where the argument was grounded on the argued irrelevance in all relevant components of the planning policy 'framework'.

The related grounds of appeal: LSU 4.10, SPPs under Pt 3 of the P&D Act 2005, and s 241(1)(a) of the P&D Act 2005

99 The two related grounds of appeal pursued by Mr Zampatti before this court, grounds A and B1, are formulated in these terms:

1. The President of the State Administrative Tribunal erred in law in that the President did not conduct a hearing de novo of the decision of a Sessional Member of the Tribunal (Mr Lloyd Graham), as required by section 27 of the State Administrative Tribunal Act 2004 (WA); alternatively, did not conduct a review in accordance with s 244 of the Planning and Development Act 2005.
2. The President of the State Administrative Tribunal erred in law in dismissing the appellant's application for review of the decision of a Sessional Member of the Tribunal (Mr Lloyd Graham), and in affirming the decision of the Sessional Member, in that the President of the Tribunal did not consider whether the Sessional Member had committed the following errors of law in making his decision and should have found, but failed to find, that the Sessional Member had committed the following errors of law in making his decision:
   1. The Sessional Member erred in law in that he failed:

(a) to identify, and/or

(b) to have due regard to (as required by s 241(1)(a) of the Planning and Development Act 2005 (WA)),

the principal criterion to be used in assessing the applicant's subdivision application, prescribed by paragraph LUS 4.10 of the Statement of Planning Policy No 6.1 (the Leeuwin-Naturaliste Ridge Policy), namely whether the proposed subdivision would conserve the productive agricultural potential and rural landscape values of the land, to ensure these values would continue to predominate.

100 Ground A (which I have referred to as the second ground) focuses attention on the scope of the s 244 P&D Act 2005 review exercise, as undertaken by the President in conducting his further review. Mr Zampatti contends, in effect, that notwithstanding the cornerstone error of law was not put in those actual terms to the President, that nevertheless as a legal issue it was a part of 'the matter' raised before his Honour in a general sense. So, it still arose to be resolved within the s 244 review process, it is put.

102 Ground A is framed in the alternative. Its first contention is that the President ought to have conducted a review hearing de novo, as regards his review of the decision of the SAT. Alternatively, ground A contends that the President ought to have conducted a review 'in accordance with' s 244 of the P&D Act 2005. That rather elliptical second formulation is shrouded with possibilities.

103 Section 244 of the P&D Act 2005 is found within Pt 14 Div 1 of that Act. I have set out its terms earlier in these reasons. An examination of the statutory history surrounding this provision shows s 244 of the P&D Act 2005 to be on all fours, essentially, with s 66 of the Former Planning Act. Section 66 provided a mechanism of Presidential review, in respect of decisions of the former Town Planning Appeal Tribunal, in situations where that Tribunal had been constituted without a legal practitioner, where presidential review was sought upon 'a matter involving a question of law': see s 66(1) of the Former Planning Act.

104 Section 244 as amended, envisages review by a judicial member of the SAT, not merely the President of the SAT - that amendment taking effect from September 2008. However, as originally enacted, s 244(1) and s 244(4) both continued the notion of a Presidential review, in like circumstances to the former process which had been set up and utilised under s 66 of the Former Planning Act, where no legal practitioner had been involved in the first coram.

105 I cannot accept a contention, embodied as a first alternative within ground A, that a judicial member of the SAT is required under a s 244 P&D Act 2005 review, to conduct a full review hearing de novo. An initial review hearing de novo, as regards the respondent's initial decision, has already been conducted by the Senior Sessional Member. It is apparent from the overall structure of Pt 14 of the P&D Act 2005, read in conjunction with the SAT Act then all read with the statutory history surrounding s 244 (manifesting its heritage in review concept arising out of the process established under s 66 of the Former Planning Act), that a further full scale de novo hearing, above and beyond one review already conducted by the Senior Sessional Member of SAT, was not contemplated. In that regard, I note, by contrast, very explicit terms in s 27(1) and s 27(3) of the SAT Act, setting down the hallmarks of a de novo review where it is afforded. An absence of like, explicit terminology in s 244 of the P&D Act 2005 is significant, in my view. The absence of such clear words detracts from the ability to construe s 244 to the effect that it would encompass the right to a (second) full scale de novo review. Compare, in that respect, Keating v Western Australia [2007] WASCA 98, (2007) 35 WAR 1 [10], [19] and [21] (Steytler P & McLure JA). A s 244 review is, in my assessment, more confined.

106 Use in s 244(1) of the phrase 'matter involving a question of law' does point towards a mechanism of wider review by way of rehearing, albeit restricted, in my assessment, by a need for the establishment of legal error. In HIA Insurance Services v Kostas, Basten JA said, [83] - [84]:

A survey of statutory appeal provisions, restricted in some way to legal error, suggests that they fall within three broad categories. The categories can be identified by reference to different forms of statutory language, although there are more variations than the categorisation would suggest.

The first and broadest category of appeal arises where the right of appeal is given from a decision that 'involves a question of law', being language which permits 'the whole case, and not merely the question of law' to be the subject of the appeal: see Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302 at 303 (referring to Ruhamah Property Co Ltd v FCT [1928] HCA 22 ; 41 CLR 148 and subsequent authorities).

107 The s 244 review is not (by reference to a tripartite classification of appeals explained by Mason J in Builders Licensing Board v Sperway Constructions (619 - 620)), an appeal (review) in the strict sense (stricto sensu). Nor is it, as I have concluded, a review by way of fresh hearing (de novo).

108 In Coal & Allied Operations v Australian Industrial Relations Commission, Gleeson CJ, Gaudron and Hayne JJ observed, concerning statutory appeals (expressed in terms which also seem appropriate to statutory reviews):

There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another [11].

109 Whilst a s 244 review will be a review by rehearing, Basten J's observations in HIA Insurance Services v Kostas [83], to the effect that there are more variations than that categorisation may suggest, seem, with respect, to be entirely apposite here. A s 244 review carries its own character, by reference to a unique statutory heritage.

110 One further observation of Mason J in Builders Licensing Board v Sperway Constructions (621 - 622) seems apposite here, in assessing the scope of the s 244 review. His Honour said:

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.

111 Ground A may be read as embodying a requirement that a properly conducted s 244 review would require a judicial member to deal with questions of law not formulated or put for consideration on the review. Such a notion is, in my view, manifestly unworkable. It would also raise a correlative problem for this court, which is encountered in the present circumstances, where, in attempting to evaluate an application for leave to challenge a s 244 review decision the legal error sought to be raised has not been considered below and so, emerges in effect for a first consideration before the court. This is a highly unsatisfactory arrangement.

112 However, as a matter of pure pragmatism, I will proceed to assess the merits of cornerstone ground B1, said to be 'involved' as a part of the 'matter' before the President and thereby within the s 244 review. This should not be thought to set any procedural precedent for the future.

Cornerstone ground B1: LUS 4.10 with Statement of Planning Policy 6.1 (the LNRSPP) and s 241(1)(a) of the P&D Act 2005

113 The cornerstone ground first focuses upon the phrase 'have due regard to', within s 241(1)(a) of the P&D Act 2005. It then directs attention to LUS 4.10, as a component of Statement of Planning Policy 6.1 (equivalent by reason of s 25 of the P&D Act 2005, to a SPP under Pt 3 of the P&D Act 2005), and emphasises the phrase found within LUS 4.10, 'the principal criterion used in assessing subdivision applications'.

114 Ground B1(a) attributes the same legal error to both the Senior Sessional Member and to the President. The first aspect of this error is an asserted failure to 'identify' the principal criterion.

115 It will be recalled, however, that Mr Graham's reasons do explicitly refer to s 241 of the P&D Act at [30], as well as to the phrase 'due regard' therein, by reference to relevant planning considerations within a SPP. Mr Graham also expressly refers to the LNRSPP (Statement of Planning Policy 6.1): see [30]. He makes express reference to LUS 4.10 at [39], and to the LNRSPP at [29] - [39]. Given all that, it cannot be put, as regards the alleged legal error by non-identification, that Mr Graham was not fully alive to s 241(1)(a), or not alive to the content of LUS 4.10, as regards its designation of a 'principal criterion'. I therefore reject ground B1(a).

116 The more substantive grievance raised under ground B1, is that Mr Graham did not have 'due regard' to the 'principal criterion'. Essentially, it is argued that because of the (factually established) agricultural unviability in Lot 51, and inoffensive aesthetics of the proposed subdivision, that accordingly no relevant policy concerns (by reference to the principal criterion) were engaged.

117 Because LUS 4.10 designates itself as 'the' principal criterion, to which 'due regard' is to be given in a subdivision application, then by reason of s 241(1), it is put, in effect, that there remain no other rivalling or supervening policy considerations capable of transcending or overriding the policy force in LUS 4.10 not being transgressed. Thus, it must follow inexorably, according to Mr Zampatti, that his subdivision application concerning Lot 51 must be approved.

118 The principal criterion argument, grounded upon s 241(1)(a), contends, in effect, that one criterion (found within what is essentially a SPP) is of such weighty policy significance that both the SAT and the President erred in law by failing to recognise the satisfaction of this key planning consideration, which was the 'fundamental element' in the overall decision making process.

119 Underlying the 'fundamental element' submission, Mr Zampatti relies upon a line of cases commencing with R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329; Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615, 623; Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511, 529 - 530, and a recent decision of Simmonds J, Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116 [72]. The argument as to the suggested force of this body of case authority is encapsulated under [16] and [17] of appellant's written submissions:

1. Consequentially, as a matter of law, in making their decisions upon the reviews which they undertook, both the Sessional Member and the President were required to consider and give weight to the principal criterion stated in paragraph LUS 4.10 of the Leeuwin-Naturaliste Ridge Policy, as a fundamental element of their decision-making processes.
2. In other words, the sessional member and the President had to consider whether the appellant's proposed subdivision would conserve the productive agricultural potential and rural landscape values of the land, to ensure these values continue to predominate, and the answer to this question had to be given fundamental weight in determining the appellant's application [This was corrected in oral submissions before the court as essentially to give weight as the fundamental element].

120 It is significant, in my view, that s 241(1) of the P&D Act 2005 deploys the words 'have due regard', not merely in reference to SPPs, but also to 'relevant planning considerations'.

121 The term 'relevant planning considerations' is not defined within the P&D Act 2005. But the phrase is manifestly of broad import and obviously would include a SPP.

122 However, 'relevant planning considerations' would also encompass, in present circumstances, those local planning considerations of a character as are identified in Mr Graham's reasons as 'policy and statutory context which affects the subject land' [80] or, in the reasons of the President, as the relevant 'planning framework' [17].

123 The wide phrase 'relevant planning considerations' used in s 241(1), may therefore readily extend to embrace potentially multiple planning considerations, in any given context.

124 The reasons for decision of Mr Graham are seen to canvass DC 3.4, the EBSP and the RPS 2007, as relevant planning considerations. Obviously, they all were.

125 Nothing I discern within s 241(1)(a) suggests that a SPP, or some component of a SPP, or something of equivalent force to a SPP (namely a component of a former Statement of planning policy), is necessarily to receive an elevated or a superior weighting in the overall evaluation process involved in a decision-maker's consideration of multiple potentially-relevant planning considerations and arising on an application to subdivide a rural property.

126 Merely because SPPs are inclusively referred to under s 241(1)(a) as one expressly identified source of planning consideration does not, on my reading of s 241(1)(a), understood in the overall context of Pt 14 of the P&D Act 2005, suggest that a SPP (or some component thereof) carries any particular degree of gravitas over and above other relevant planning considerations.

127 Here, the applicable local planning considerations arising from the ESBP, or the WAPC Policy 3.1, cl 3.1 and cl 4.1, all presented as relevant and logically understandable factors for weighing in the decision-maker's overall assessment. They raised considerations fully appropriate in the overall balancing of the relevant planning considerations, as part of the process leading to an eventual decision upon the application to subdivide. So, the expressed disinclination that is found within these planning instruments against ad hoc fragmentation of rural land, or the loss of rural character through piecemeal unplanned rural subdivisions, were relevant, indeed understandable factors to be identified, then weighed in an overall context of the decision-maker's deliberations. To contend, as the cornerstone ground does, that planning considerations of this nature should either be ignored, or be assessed as outweighed or overridden by a factor self-designated as 'the principal criterion' found in a policy instrument akin to a SPP, is a proposition that cannot be accepted, as a matter of logic or merit.

128 I am not persuaded that further potentially relevant planning considerations arising out of planning instruments which are not SPPs are, in effect, to be downgraded or overridden merely because of a satisfaction of a 'principal criterion', found specified within a Land Use Strategy paragraph (LUS 4.10), in one instrument having the force of a SPP.

129 I assess Mr Zampatti's 'principal criterion' argument to be essentially vacuous in overall policy direction. Merely because the identified 'principal criterion's' policy concern as expressed under LUS 4.10 has not been relevantly engaged (it being accepted that Lot 51 is agriculturally unviable), the approval for the proposed subdivision of Lot 51 does not necessarily follow. There may be a myriad of local planning considerations all potentially involved in the overall merits assessment of a subdivisional application in respect of a rural property. Here, some relevant local planning considerations were comprehensively identified, then evaluated within the SAT's (de novo) review decision.

130 I do not assess it to be the function of this court, which is directed at correction of errors of law, to be drawn into what is essentially a re-evaluation of the various potentially applicable planning considerations impacting upon a proposed rural subdivision. The exercise of weighing and evaluating the merits of all those various planning considerations raises a likely need for planning expertise in the decision-maker. Whilst the merits or demerits of a subdivision evaluation may sensibly be reventilated afresh on the review before SAT (under the first de novo review), where specialist planning expertise is reposed, I am not persuaded that it was intended there should be scope for what would be a second de novo merits review, once the SAT had completed its first review, of the subdivisional application.

131 The well-known approach as explained by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24 applicable to weighing of multiple considerations, in my view, remains of force and guidance in the present context. His Honour said:

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: [citations omitted] I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it (41 - 42).

132 Of course there may be legislation which, by its express terms, specifically allocates a designated degree of priority to one or other identified criteria, within the overall decision-making process that must be followed: see, for example, Re Michael; Ex parte Epic Energy (WA Nominees) Pty Ltd. In particular statutory contexts it may become necessary in the overall analysis for the decision-maker to identify a 'fundamental element' within the evaluation process: see R v Hunt; Ex parte Sean Investments. But that is not this case.

133 These conclusions arise as a matter of the statutory construction of s 241(1), read in the overall context of the P&D Act 2005. They are confirmed in the statutory history of the provisions that preceded and, over time, evolved prior to the enactment of s 241, in the P&D Act 2005. The statutory evolution was helpfully explained in the written submissions of counsel for the respondent, tracing back to the Town Planning & Development Amendment Act 1976 (WA), and to a 'due regard' provision which first found its way into s 53 of the Former Planning Act.

134 Examination of the Parliamentary debates preceding the 2002 Amendment Act also confirms this conclusion. In dealing with the significance of Statements of Planning Policy (now SPPs) within a regime of Pt 3 of the new P&D Act 2005, the Minister for Planning and Infrastructure made the following observations in the Legislative Assembly on 21 August 2001: see Western Australia, Parliamentary Debates, Legislative Assembly, 21 August 2001.

I therefore move -

page 21, line 23 - To insert after 'due regard to' the words 'relevant planning considerations including'.

The amendment will ensure that these are not the only policies to be included. We anticipate the provision will include, for example, council policies that do not have statutory force but policies that should be considered if relevant to the issue at hand.'

...

we want the tribunal to have due regard to all relevant planning considerations. We believe the policies, such as community design guidelines and built form policies that various councils have in force from time to time, should also be taken into account (2448 - 2449).

We recognise that there is a difficulty with the framing of this clause because it suggests that these policies are the only ones to be considered. We are therefore trying to broaden the clause by using the words 'all relevant considerations'. I hope the discussion tonight will provide some further guidance to the tribunal in that regard. (2449).

136 The Former Planning Act was repealed, when the P&D Act 2005 came into force. However, s 241(1)(a) is in materially identical terms to s 61(1)(a) of the Former Planning Act, as it read, prior to repeal.

137 The extrinsic materials confirm that s 241(1)(a), correctly understood, does not carry any statutory indication as to a level of particular weight to be attached to SPPs, or for that matter, to any other factor which could qualify as a 'relevant planning consideration', in the overall decision-making process. A flexible weighing process in overall context, as was classically explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend above, is the applicable approach required for s 241(1), in my view. To the extent that any observations in Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [72], might be read to suggest a contrary evaluation approach is required by the decision-maker under s 241(1)(a) of the P&D Act 2005, I would respectfully disagree, based on the statutory analysis above, and applying Peko as the guiding rationale of legal principle.

138 Since Mr Zampatti ultimately fails in pursuit of his cornerstone ground B1, then irrespective of what view might ultimately be taken about the merits of ground A, or as to a delineation of the precise bounds of a s 244 P&D Act 2005 judicial member's review, Mr Zampatti ultimately cannot demonstrate the correctness of his base contention seeking to establish error of law sufficient to sustain a grant to appeal under s 105(1) of the SAT Act.

139 Accordingly, I would refuse leave to appeal in respect of all Mr Zampatti's proposed grounds.