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Supreme Court of Western Australia |
Last Updated: 12 August 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION : TAH LAND PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASC 196
CORAM : SIMMONDS J
HEARD : 18 FEBRUARY 2009
DELIVERED : 17 JULY 2009
FILE NO/S : GDA 11 of 2008
BETWEEN : TAH LAND PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR D R PARRY (SENIOR MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
Citation : TAH LAND PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 227
File No : DR 164 of 2008
Catchwords:
Administrative law - Review of decision of State
Administrative Tribunal on question of law - Refusal of application for approval
of structure plan to increase the retail nett lettable area of an existing
district shopping centre - Whether Tribunal applied state
planning policy
inflexibly - Whether Tribunal failed to have due regard to relevant planning
considerations - Whether irrelevant
material relied upon
Legislation:
Planning and Development Act 2005 (WA), s 27, s
29, s 241
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Decision of State Administrative Tribunal quashed
Matter
remitted to Tribunal to be reheard by differently constituted panel
Category: B
Representation:
Counsel:
Applicant : Mr C G Colvin SC & Mr M C Hotchkin
Respondent : Mr C S Bydder
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68
Federal Commissioner of Taxation v Swift [1989] FCA 413; (1989) 18 ALD 679
Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675
Khan v Minister for Immigration and Ethnic Affairs (Unreported, FCA, (Gummow J), No G159 of 1987, 11 December 1987)
Laslett v District Council of Mount Gambier (No 2) (1985) 56 LGRA 195
Marford Nominees Pty Ltd v State Planning Commission (Unreported, WASC, (Murray J), Library No 960047, 1 February 1996)
Maritime Services Board NSW v Liquor Administration Board (1990) 21 NSWLR 180
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24
Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Penley v Development Assessment Commission (1995) 88 LGERA 102
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707
Tah Land Pty Ltd and Western Australian Planning Commission [2008] WASAT 227
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
1 This is an appeal by leave from a decision of the State Administrative Tribunal (the SAT). That decision, Tah Land Pty Ltd and Western Australian Planning Commission [2008] WASAT 227 (Tah Land WASAT), was on an application by Tah Land Pty Ltd (Tah Land, or the appellant) for review of the decision of the Western Australian Planning Commission (the Commission, or the respondent) to refuse to adopt a structure plan (the structure plan) concerning a property (the site) currently containing, among other things, a shopping centre (the centre on the site). That refusal was on an application for the Commission to adopt the structure plan as an agreed structure plan for the purposes of the local planning instrument I will shortly reach. The decision of the SAT was to affirm the decision of the Commission.
2 In these reasons I first describe the background to and the proceedings and decision in Tah Land WASAT, before reviewing the proceedings in this Court in the appeal against that decision. I then consider the grounds of appeal. The final section of these reasons is my conclusions and proposed orders.
Background3 What follows is common ground between the parties, except as I indicate.
4 The site is a property of 'approximately' 18 hectares at 'the north-eastern corner of the intersection of Wanneroo Road (north/south) and Hepburn Avenue (east/west), which are both major arterial roads': Tah Land WASAT [5].
5 The site and the centre on the site are further described in Tah Land WASAT [6] as follows:
The site contains an existing district shopping centre referred to variously in planning instruments as the Madeley, Landsdale and Kingsway City Shopping Centre. The existing centre opened in March 1996 and comprises a single storey internalised 'box' type shopping centre surrounded by car parks which is fairly typical of construction of suburban shopping centres from the 1960s to the 1990s. The 'box' contains a total nett lettable area of 17,340 square metres including 15,434 square metres retail nett lettable area. The retail nett lettable area principally comprises a fullline Woolworths supermarket and a Big W discount department store, as well as some specialty retail shops. There are also a number of smaller buildings which are generally located on the southern and western extremities of the site that contain service stations, car maintenance facilities, fast food outlets, a medical centre and other miscellaneous services. The total existing floorspace on the site is approximately 22,700 square metres. About 8 hectares of the site is vacant including a large contiguous area in the east and northeast which takes up about one-third of the total site area.
6 The site is subject to the controls on its development contained in a local planning instrument, the City of Wanneroo District Planning Scheme No 2 (DPS 2), cl 3.7.3 and cl 3.7.4, read with sch 3.
7 DPS 2 cl 3.7.3 and cl 3.7.4 are as follows:
3.7.3 All land contained in the Commercial Zone shall specify a maximum retail net lettable area (NLA) which relates to retail floor area. The maximum NLA shall be included in Schedule 3 of this Scheme and shall bind the development of the land to no more than the area specified.
3.7.4 Notwithstanding the provisions of clause 3.7.3, the floorspace figures contained within Schedule 3 shall be adhered to except where a provision to the contrary is made in an Agreed Structure Plan for the centre locality as adopted by the Council and the Commission.
8 The 'Council' is the Council of the City of Wanneroo.
9 DPS 2 sch 3 sets a 'retail net lettable area' for 'Madeley (Kingsway City)' at 15,000 sqm. As will shortly be seen, the structure plan provides for a development of the site involving a retail nett lettable area of 32,000 sqm.
10 The structure plan is described in Tah Land WASAT as follows:
The structure plan has two parts. Part 1 establishes the permissibility of uses, development standards and requirements, including residential density coding, and development control provisions. If adopted, Pt 1 of the structure plan would have statutory force under cl 9.8.3(f) of DPS 2 as if it formed part of DPS 2. Part 2 of the structure plan is for explanatory and guidance purposes only and would not have statutory force and effect.
Clause 1.4.1 of Pt 1 of the structure plan requires that development shall generally be in accordance with the Development Control Plan (DCP) presented in Figure 2, although 'the boundaries of the various use classes shown in Figure 2 are indicative only and subject to change in detailed development plans'. The DCP shows a 'retail core' comprising 32,000 square metres retail nett lettable area incorporating the existing shopping centre and a cinema complex substantially in an expanded 'box'. The western, northern and eastern sides of the proposed retail core would not have any active interface with the rest of the site whereas most of the southern site is designed to present and relate to a proposed internal 'main street' and includes an indent to accommodate a park or piazza. The southern edge of the retail core, the northern edge of a proposed mixed use development area on the other side of the main street and the section of the road between these elements is identified in the DCP as 'main street precinct with two storey minimum development'. Clause 1.4.6 of Pt 1 of the structure plan contains development control provisions for the main street precinct, including requirements for complementary awnings attached to the buildings on both sides of the road, the façades of buildings exhibiting 'a high standard of design' and footpaths on the street and in the park or piazza area having a sufficient width to allow for at least one rank of alfresco dining without restricting movement.
The proposed road that forms part of the main street precinct runs substantially parallel to Hepburn Avenue and is accessed at each end by extensions to Hepburn Avenue. The DCP designates the land on one side of each extension road to Hepburn Avenue as 'showroom, other commercial or mixed use development'. The land located between the main street precinct, the extension roads to Hepburn Avenue and Hepburn Avenue itself is identified in the DCP as 'mixed use development'. The land at the peripheries of the site to the east, southwest and west are also designated for mixed use development and the remaining areas of the site, to the immediate west, north and east of the retail core, are identified as 'principal parking areas'.
Clause 1.4.3 of Pt 1 of the structure plan states, in part, as follows:
'(i) Prior to the Mixed Use Development areas being developed for Mixed Use purposes, the following interim uses may be permitted:
(ii) Residential development shall not be permitted unless it forms part of a Mixed Use Development and complies with Clause 4.3 of the Residential Design Codes of Western Australia. Any residential development shall conform to the Residential Density Code depicted in the Residential Density Code Map (Figure 3).'
Clause 1.4.3 of Pt 1 of the structure plan would enable the existing car parks between Wanneroo Road, Hepburn Avenue and the 'box' to remain and new car parks to be developed on virtually all of the currently vacant parts of the site. Figure 3 designates the residential density code for residential development within mixed use developments on the site as 'R160' which is a high density code.
Clause 4.1 of Pt 2 of the structure plan, which is the nonstatutory part for explanatory and guidance purposes only, states the following longterm vision for the site:
'The vision and longterm objective for Kingsway City is for its transformation from a suburban shopping centre into a fully integrated, mixedused [sic] Activity Centre.'
Clause 4.1 of Pt 2 of the structure plan states that Figure SP-01 is the Indicative Development Plan (IDP) which illustrates the longterm vision. However, cl 4.5 states that the IDP 'is only one interpretation' of planning and urban design principles set out in cl 4.3.
Mr Malcolm Mackay, an architect and urban designer and the author of the IDP, who gave evidence on behalf of Tah Land, explained that the concept of the IDP is a hybrid of 'wrapping the good stuff', namely mixed use development, the piazza and the main street precinct, around the 'box', which is a development constraint that will remain because of its relatively recent construction. Mr Mackay explained that the most significant aspect in the vision of the IDP is that it involves a mix of uses and activities that one would expect to find in a town centre but which are generally absent in suburban locations.
Clause 4.6 of Pt 2 of the structure plan states as follows:
'It needs to be recognised that the IDP is a longterm vision of Kingsway City's development potential that may take many years to fully implement. Figure SP-04 presents the Interim Development Concept, which is intended to form the basis of the first major development application following approval of this Structure Plan.'
The Interim Development Concept (IDC) presented on Figure SP04 essentially shows the expansion of the 'box' to the northeast to incorporate a second discount department store with similar area to the existing Big W and to the southeast to incorporate a second supermarket with similar area to the existing Woolworths, expansion of retail area to the south to incorporate two storey main street development and a piazza along the northern edge of the main street precinct and development opportunity sites at the eastern and northern extremities of the site. In the IDC the expanded 'box' would remain substantially surrounded by car parking, including in the area between Hepburn Avenue and the proposed main street. In other words, the IDC involves more than doubling the retail nett lettable area, substantially in the form of a second discount department store and a second supermarket, without any substantial mix of other uses [8] - [17].
11 It will be evident from that description of the structure plan that it made 'a provision to the contrary' of the retail nett lettable area stated in DPS 2 sch 3 (DPS 2 cl 3.7.4). For the structure plan to become an agreed structure plan the structure plan had to be considered by the Council and the Commission under DPS 2 cl 9.6.
12 The initial decision of the Council and the decision of the Commission on their consideration of the structure plan are described in Tah Land WASAT [20] - [24]. In that description the references to 'SPP 4.2' are to State Planning Policy No 9 - Metropolitan Centres Policy Statement for the Perth Metropolitan Region (2000) (SPP 4.2), while 'Network City' refers to a framework, action plan and community planning strategy for Perth and Peel which were endorsed by the previous government or (in the case of the community planning strategy document) received approval for publication. Notwithstanding the change of government, it was accepted before the SAT and before me that Network City was expected to continue. Both SPP 4.2 and Network City, as will be seen, assume considerable significance in this appeal.
13 Tah Land WASAT [20] - [24] are as follows:
At the City's meeting on 15 May 2007, it received a report from its Director, Planning and Development, that recommended refusal of the structure plan for reasons including the following:
'(a) the proposal is inconsistent with the relevant City and [Commission] policies including [SPP 4.2] and the City's Centre's [sic] Local Planning Policy and supporting strategy. The proposal is contrary to the intent and provisions of these policies and hence with the orderly and proper planning of the locality.
(b) the proponent has not adequately demonstrated the commercial impact that the proposal will have on the existing and planned provision of centres and retail facilities in the locality. ...'
A motion to adopt the recommendation was lost four to nine. An alternative motion to approve the structure plan subject to conditions was lost five to eight. Finally, a further alternative motion to 'approve' the structure plan, but subject to conditions including that the structure plan be modified to accommodate no more than 20,000 square metres retail nett lettable area was carried nine to four. Arguably, this 'approval' amounted to an effective refusal of the proposal which involves 32,000 square metres retail nett lettable area. The Council's stated reason for not supporting the Director, Planning and Development's recommendation and for passing the second alternative motion was that its decision was 'based on the merits of the application and the provisions of the current centre strategy document'.
On 25 May 2007 the City forwarded the structure plan to the Commission in order for the Commission to consider whether to adopt the structure plan under cl 9.6.3 of DPS 2.
On 6 November 2007 the Commission's Statutory Planning Committee resolved to note that the proposal is well in excess of the retail nett lettable floorspace identified in SPP 4.2 and in the City's Centres Strategy and to defer consideration of the structure plan to enable further consideration of certain matters.
On 1 April 2008 the Statutory Planning Committee resolved to refuse to adopt the structure plan for the following reasons:
'(a) The Kingsway Shopping Centre is designated as a District Centre in [SPP 4.2] with a maximum floorspace limit of 15,000 square metres. The [Commission] is not prepared to support the increase in floorspace limit due to its inconsistency with [SPP 4.2].
(b) The proposed increase in retail floorspace at Kingsway Shopping Centre would adversely affect the future development of adjacent Regional Centres, which have been identified as preferred locations for high level retail facilities [and] associated commercial and community activity which is associated with higher level retail activity.
(c) The retail modelling submitted to support the proposed increase in retail floorspace at Kingsway Shopping Centre does not adequately demonstrate that the proposal will not result in an adverse impact on adjacent centres. The Western Australian Planning Commission is not prepared to approve an increase in retail floorspace without adequate demonstration that it will not negatively impact upon the other existing retail centres.
(d) Approval of the proposal would create a precedent which would undermine the objectives and principles of [SPP 4.2] and Network City.'
14 As will shortly be seen the Council made a further decision with respect to the structure plan not long after the Commission's decision and after Tah Land had commenced review proceedings in the SAT.
15 SPP 4.2 for its purposes (cl 2.4 - cl 2.6) employs what it calls 'a hierarchy of well-located centres in the metropolitan region' (cl 3) (the hierarchy), with respect to which it identifies 'shopping floorspace' limitations for (in decreasing order of shopping floorspace size) 'Strategic Regional Centres', 'Regional Centres', District Centres' and 'Neighbourhood and Local Centres' (cl 4.2.2 - cl 4.2.5, respectively).
16 Tah Land WASAT describes the principal purpose of SPP 4.2, the hierarchy, Regional Centres, District Centres and the shopping floor space limitations in [35] - [45] as follows:
The principal purpose of SPP 4.2 is relevantly stated in cl 2.4 as:
'To provide a broad regional planning framework to coordinate the location and development of retail and commercial activities in the metropolitan region. It is mainly concerned with the location, distribution and broad design criteria for the development of commercial activities at the regional and district level.'
Clause 2.5 of SPP 4.2 states that:
'The policy is intended to provide a guide for centre development that is flexible enough to enable commercial development to respond to market conditions and has a degree of certainty to assist in commercial investment decisions.'
Clause 3 of SPP 4.2 states that the objectives of SPP 4.2 include to:
'• establish a hierarchy of welllocated centres in the metropolitan regional that will:
...
Cause [sic] 4.1.2 of SPP 4.2 states, in part, as follows:
'In determining major shopping development proposals the Commission will not support proposals which are in the opinion of the Commission likely to:
Clause 4.1.3 of SPP 4.2 states:
'In determining centre development proposals, the Commission will have regard to the primary functions of the centre and to the Shopping Floorspace Guide in Appendix 1.'
The 'primary functions' stated in Appendix 1 for 'District Centres' is 'centres for weekly retail, service and community facilities' whereas the 'primary functions' for 'Regional Centres' is 'multipurpose centres for retail, office, community and entertainment facilities'. The 'Shopping Floorspace Guide' stated in Appendix 1 for 'District Centres' is up to 15,000 square metres nett lettable area whereas for 'Regional Centres' it is up to 50,000 square metres nett lettable area.
Clause 4.2 of SPP 4.2 states that the location of centres within the hierarchy of metropolitan centres is shown in Appendix 2. As noted earlier, the centre on the site is identified as a district centre in the hierarchy in Appendix 2. Clause 4.2.4 of SPP 4.2 states as follows in relation to district centres:
'District Centres will be promoted as centres serving the weekly shopping and service needs of the suburban population. They should provide mainly convenience goods, a range of comparison goods, local services and local employment.
Shopping floorspace should generally be confined to 15,000 square metres unless consistent with a Commission endorsed Local Planning Strategy or centre plan.'
As Mr Mackay [a witness before the Commission for Tah Land] explained, 'convenience goods' are things that one needs on a daily or weekly basis, such as grocery items, fruit and vegetables, whereas 'comparison goods' are things that one wants rather than needs and are not purchased on a daily or weekly basis, such as clothing and electrical goods. Mr Mackay said that wants rather than needs are called 'comparison' goods because one tends to compare one item to another.
In contrast, cl 4.2.3 of SPP 4.2 states as follows in relation to regional centres:
'Regional Centres will be promoted as multipurpose centres, providing a predominantly retail function, a mix of offices, community and entertainment facilities. ...
Shopping floorspace should generally be confined to 50,000 square metres unless consistent with a Commission endorsed Local Planning Strategy or centre plan.'
Clause 5.3 of SPP 4.2 states, in part, as follows:
'To maintain a strong hierarchy of centres it is necessary to ensure that commercial functions and uses are appropriate to each centre's position in the hierarchy.'
Finally, cl 5.4 of SPP 4.2 states, in part, as follows:
'The Shopping floorspace Guide in Appendix 1 provides an indication of the nature and quantity of shopping floorspace appropriate for centres in the hierarchy and provides for additional shopping floorspace of up to 1,000 square metres above the shopping floorspace guide in traditional main street centres. Shopping development up to the floorspace indicated is deemed to be acceptable and unlikely to have significant adverse social or economic impacts on the locality or other centres.
Developments which do not result in the shopping floorspace guide figures being exceeded will normally be determined by the local government. However, proposals which would result in the shopping floorspace levels in the guide being exceeded are required to be referred to the Commission for determination unless such proposals are consistent with a Local Planning Strategy or a centre plan endorsed by the Commission. In the absence of an endorsed Local Planning Strategy, any proposal which exceeds the retail floorspace specified in an endorsed structure plan or town planning scheme will need to be referred to the Commission for determination.'
17 I note that the term 'shopping floorspace' is defined in SPP 4.2 cl 6 by reference to planning land use category 5 (excluding hotels, taverns and nightclubs) of the WA Standard Land Use Classification specified in Appendix 4 to SPP 4.2. The term 'shopping floorspace' in SPP 4.2 appears to be equated in Tah Land WASAT with 'retail nett lettable area' in DPS 2, and it appeared to be treated in that way in the submissions of the parties before me. I will therefore use the terms interchangeably.
18 The site contained a District Centre for the purposes of SPP 4.2 cl 4.2.4. The adoption by the SAT of the structure plan would have made it a 'centre plan' for the purposes of cl 4.2.4.
19 Network City's components are described in the draft Statement of Planning Policy: Network City (2006) (draft SPP), which it was accepted before the SAT and before me had not been approved or gazetted so as to become a State planning policy within Planning and Development Act 2005 (WA) (PD Act) s 29. That description is as follows:
In July 2004 the WAPC adopted Network City. In August 2004 the Government endorsed the Network City Framework and Network City Action Plan and approved the publication of Network City: Community Planning Strategy for Perth and Peel as the strategy framework and the basis for local dialogue in planning for the metropolitan and Peel regions.
In the period to February 2005 246 individuals, groups and organisations made submissions to the WAPC. All of the submissions have been kept in electronic form to be consulted as policies and plans are developed over the coming years. The submissions have also been summarised into 2350 discrete comments and published in a searchable and sortable database for ongoing analysis. Individuals and organisations can now make their own analysis of the responses to Network City and can join with the WAPC and its partners in helping to shape the future of Perth and Peel.
...
The WAPC published a response to the submissions in the statement Network City - A Milestone in Metropolitan Planning (November 2005). The statement included summary comments from all submissions, presented an analysis of the comments and explained the next steps which the WAPC intends to take, with its partners, in implementing the directions set by Network City (draft SPP, pages 1 - 2).
20 Of particular relevance to this appeal is the following from Network City, which appears in Network City: Community Planning Strategy for Perth and Peel (2004) (Network City Strategy 2004):
The concept of the Network city is designed to optimise land use and transport linkages between centres and for public transport to be supported by a range of activities at the centres as well as the land uses along the corridors linking the centres. Strong centres at each end of the 'activity corridors' support an effective public transport system in both directions along the corridor. The major elements of the Network city are the activity corridors, activity centres, and transport corridors.
Activity centres are locations where a range of activities are encouraged. Employment, retail, living, entertainment, higher education, high level or specialised medical services are just a few such activities.
Activity corridors are connections between activity centres that provide excellent, high frequency public transport to support the land uses that will occur along the activity corridors and at the activity centres. Activity corridors are not designed to be high-speed through traffic routes.
Transport corridors provide routes for higher speed through traffic, in particular truck routes, express bus services, and are the routes that traffic will take for inter-suburban travel.
Centres perform different functions and have different designations applied to them, which assists investment decisions made by both public and private sectors. Figure 1.3 shows the location and relative scale of each centre at 2030. The scale of each centre and its associated designation requires further analysis to determine its place in the hierarchy of centres.
The current (2004) designation of centres has been influenced largely by the amount of retail floorspace that each contains. The new strategy, while acknowledging this component, aims to encourage a broader range of activities including varying densities of housing and employment accessible by private and public transport, walking and cycling.
In determining the type of centre, a number of elements need to be identified as a basis for a system of classification. Common elements would include the number of people employed, the number of journeys generated and the need for good accessibility by different modes of transport. The classification will also need to recognise local differences so that, for example, the character and identity of Joondalup and Midland will remain different even though they are at the same level in the hierarchy (see Action 1-1(a)).
...
[WAPC Action 1-1(a)] Determine the location of, and classification criteria for, activity centres by reviewing the Western Australian Planning Commission's (WAPC) Statement of Planning Policy No 4.2 - Metropolitan Centres, to reflect the intent of this strategy and recognise a connected network of centres of differing scales and types. The review should -
21 The reference to 'Figure 1.3' is to a page headed 'Network City Framework' on which the centre on the site appears as a red dot (Figure 1.3). There is a key appearing on the page showing four red dots of diminishing size indicating 'Activity centres on activity corridors (diagrammatic)'. In that key the red dot of smallest size corresponds to the red dot for the centre on the site. Figure 1.3 appears not only in Network City Strategy 2004 but also in Network City - A Milestone in Metropolitan Planning (2005) (Network City Milestone 2005) and (as Figure 1) in the draft SPP.
The proceedings before the SAT22 On 8 April 2008 Tah Land commenced review proceedings in the SAT in respect of the decision of the Commission made by its Statutory Planning Committee. It was common ground that those proceedings represented an application under PD Act pt 14, to which s 241(1)(a) applied. That provision is as follows:
(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; ...
23 The term 'State planning policy' takes its meaning from PD Act s 29, and it was common ground before me that the only State planning policy for the purposes of s 241(1)(a) was SPP 4.2.
24 It was common ground before me also that Network City represents one of the 'relevant planning considerations' for the purposes of PD Act s 241(1)(a).
25 As will be seen there are a number of other matters which, it was further common ground before me, were 'relevant planning considerations'.
26 Not long after the commencement of the review proceedings before the SAT, and while they were pending, the Council considered the structure plan again. The circumstances of that consideration and its result are described in Tah Land WASAT [26] - [28] as follows:
On 29 April 2008 Mr Anthony Shrapnel, a consultant town planner and the principal author of the structure plan, applied to the City on behalf of Tah Land for 'reconsideration' of the structure plan and in particular of the limitation to 20,000 square metres imposed on 15 May 2007 having regard to the discussion paper prepared by Peter McNabb and Associates in relation to the review of the Council's Centres Strategy.
At its meeting on 29 July 2008, the Council received a report from its Acting Director, Planning and Development recommending refusal of the structure plan in its entirety. The report included an assessment by Mr McNabb who advised that, on the basis of the key principles and recommendations in his discussion paper, he does not support the structure plan. In particular, he considered that the predominant focus of the plan is considerably more retail floorspace based around 'a very large retail box with large car parking areas to the east and west'.
Notwithstanding the advice from the Acting Director, Planning and Development and Mr McNabb, the Council resolved to approve the structure plan without limiting the retail floorspace. The Council's stated reason for its alternative motion was that:
'It allows the developer to proceed to the next stage of the structure plan while still needing to submit development applications for each individual aspect of the project giving Council plenty of opportunity to monitor the progress of the development in detail.'
27 The decision of the SAT in Tah Land WASAT was delivered on 26 September 2008. The statement of its conclusion appearing at [127] is as follows:
The Tribunal has determined that the proposal is materially inconsistent with the strategic and statutory planning framework. In particular, the significant increase in retail nett lettable floor area to 32,000 square metres and the incorporation of a second discount department store is likely to undermine the established and planned hierarchy of metropolitan centres under SPP 4.2 because it would change the function of the retail centre at the site from a district centre to a regional centre. Furthermore, the proposal is inconsistent with Network City, because although the site is identified as an activity centre on or adjacent to two activity corridors, the Framework identifies the site as the lowest of five levels of activity centres and does not contemplate a retail component of the scale proposed. There is no cogent and adequate reason to depart from these policy provisions to the extent necessary to approve the application.The proceedings in this appeal
28 By appeal notice dated 24 October 2008 Tah Land gave notice of appeal against the decision in Tah Land WASAT.
29 Appeals to the court from decisions of the SAT lie only by leave of the court on a question of law: State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(1) and (2).
30 As the decision in Tah Land WASAT was made by the SAT constituted otherwise than by or including a judicial member, this appeal lay only to the Supreme Court exercising its jurisdiction other than as the Court of Appeal: SAT Act s 105(3)(b).
31 On 13 November 2008 McKechnie J of this court gave leave to appeal in respect of the grounds specified in the appeal notice.
32 On 9 January 2009 McKechnie J approved the substitution for those grounds of the grounds appearing in the minute of proposed substituted grounds of appeal dated 16 December 2008 and consented to by both parties.
33 At the hearing before me on 18 February 2008 I gave leave to make an amendment to one of the grounds, which was also consented to by both parties.
34 The substituted grounds of appeal as so amended are as follow:
(a) the Network City planning policy;
(b) the undersupply of retail floor space in the City of Wanneroo;
(c) the public interest in terms of the provision of retail shopping facilities;
(d) the sudden, substantial and unanticipated population growth in the vicinity of the site which had undergone significant expansion since the retail shopping centre hierarchy was established without the provision of additional retail shopping services to the increased population;
(e) the creation of local jobs by the proposed development;
(f) the absence of any adverse findings as to amenity, design or environmental considerations;
(g) the fact that since the date of the decision the subject of review, the City of Wanneroo, being the relevant local government, had resolved to approve the structure plan;
(h) community demand and support for the proposal; and
(i) the currency of SPP 4.2
35 As emerged in argument before me the principal grounds were ground 1; ground 2(a), to which grounds 3, 4 and 5, as well as ground 2(i), were related; and ground 2(b), to which grounds 6 and 7, as well as grounds 2 (c) and (d), were related. I will deal with the grounds in that order, followed by grounds 2(e) - (h).
Ground 136 It was not in contest that the proposed development under the structure plan would be inconsistent with SPP 4.2. The parties accepted that in the terms of SPP 4.2 the proposed development would make the centre on the site a Regional Centre.
37 It is not in contest that the principles of law principally relevant to ground 1 are to be found in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 [24] - [26] (Barker J), referring to Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68, among other authorities:
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by [sic] why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
Much has been written about the use of policy in administrative decision-making. Administrators do not act unlawfully in adopting policies to structure their discretionary powers. Indeed, courts have accepted that it is desirable that they should do so: British Oxygen Co Ltd v Minister of Technology [1970] UKHL 4; [1971] AC 610; R v Eastleigh Borough Council; ex parte Betts [1983] UKHL 9; [1983] 2 AC 613; Sawyer v Secretary to Department of Primary Industry (1998) 15 ALD 742. However, an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case, as the decision in Falc ... illustrates. This principle aside, the importance of the use of 'policies' in the exercise of discretionary planning powers in Western Australia is well recognised: see, eg, Hebe Pty Ltd v Metropolitan Region Planning Authority (1981) 2 APAD 428.
A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, the Full Federal Court held that the Administrative Appeals Tribunal is entitled to treat Commonwealth government policy as a relevant factor in making its decision, but is not entitled to abdicate its function of independently considering and assessing the propriety of the policy. In Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, Brennan J confirmed the freedom of the Administrative Appeals Tribunal to apply or not apply the policy. He noted, however, that departures from government policy would be 'cautious and sparing', occurring only where there were 'cogent reasons': 644 - 645.
38 It is not in contest that the SAT in Tah Land WASAT was alive to the principles stated in Clive Elliott Jennings, as the SAT indicated in its reasons headed 'Should the proposal be approved in the exercise of planning discretion?' [121] - [126]. For convenience, I set out that section in full. I will have occasion to return to it or parts of it in relation to a number of the other grounds.
39 Tah Land WASAT [121] - [126] is as follows:
As determined earlier in these reasons, the proposal is materially inconsistent with the strategic and statutory planning framework. However, as Barker J held in Clive Elliott Jennings ... at [24], a policy will be expected to guide the exercise of planning discretion, but may not replace discretion in the sense that it is to be inflexibly applied regardless of the merits of the particular case. Nevertheless, the relevant consideration in many applications will be why the policy should not be applied or 'why the planning principles that find expression in the "policy" are not relevant to the particular application'.
However, there is no cogent and adequate reason, in the circumstances of this case, as to why SPP 4.2 and Network City, in particular, should be departed from and the proposal approved. The main reasons put forward on behalf of Tah Land are that:
The Tribunal heard evidence from Mr Ross Cameron, the Western Australian real estate manager of Coles which, until September 2007, also owned Target. Mr Cameron said that there is no doubt that both a Coles full-line supermarket and a Target discount department store would be viable on the site. He said that these stores would provide a total of approximately 250 jobs on a fulltime, part-time and casual employment basis for the centre and that a Coles supermarket will provide an additional competitive advantage to the existing supermarket whilst Target will offer a range of goods and services that will complement the existing fashion stores at Kingsway.
The Tribunal does not consider that the policy provisions discussed in these reasons should be departed from in the circumstances of this case. The Tribunal has found that the proposal is likely to undermine the established and planned hierarchy of retail centres in SPP 4.2 which is a key component of that policy. In consequence the proposal is contrary to orderly and proper planning. While there may be a general undersupply of retail floorspace in the City's local government area, that undersupply should be addressed, as a matter of orderly and proper planning, through a review of SPP 4.2 and the Centres Strategy. It is inappropriate to change the established hierarchy by allowing a district centre to expand to the point of a regional centre to address the shortfall.
The increase in population does not warrant a departure from the policy provisions referred to. There is no evidence that the existing district centre would not be able to adequately cater for the incoming population. Furthermore, neighbourhood or local centres are planned to service new residential areas.
Finally, the willingness of Coles and Target to locate to the site and the local jobs that would be created do not warrant a departure from the policy provisions referred to. It would be contrary to orderly and proper planning to allow the strong retail hierarchy established by SPP 4.2 and the levels of activity centres contemplated by the Framework to be set aside for these commercial considerations.
40 However, it is clear from Falc (526 - 527) (Nicholson J, Pigeon J concurring) that the assertion by a decision-maker that it has proceeded in the fashion called for by the principles in Clive Elliott Jennings will not determine whether or not the decision-maker allowed the policy to replace its discretion.
41 Falc concerned an application to subdivide land zoned rural farming which the Commission had refused. An appeal to the Town Planning Tribunal was unsuccessful. An appeal to the Commissioner, on a question of law, was also unsuccessful. However, the appeal to the court was successful.
42 The Tribunal had refused the appeal notwithstanding that it agreed that the land was ripe for subdivision. The basis for the Tribunal's decision was that to allow subdivision of the land would be to treat the land as zoned special rural, which it was not, and the Tribunal had consistently upheld a general policy not to permit rural subdivision into small holdings unless land was zoned special rural. The reason for that policy was that special rural zoning had special controls which other zonings lacked. The Commissioner had refused the appeal from that decision as no question of law was said to be involved. However, the court concluded there was a question of law involved.
43 In Falc (526 - 527) Nicholson J reproduces with approval a quotation from Khan v Minister for Immigration and Ethnic Affairs (Unreported, FCA, (Gummow J), No G159 of 1987, 11 December 1987) 11 - 12, as follows:
In Khan's case Gummow J reached the conclusion (at 12) that on the whole of the evidence in that case, the applications in question had not each been given 'proper, genuine and realistic consideration upon the merits'. He relied on s 5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides a ground for judicial review where there has been an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. Gummow J said (at 11 - 12):
'... what was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: see Howells v Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 604; Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 at 492 - 494. That consideration included, in respect of each application, the effect or likely effect of refusal of the application upon members of the family: cf Tabag v Minister for Immigration and Ethnic Affairs [1982] FCA 276; (1982) 70 FLR 61 at 67, referred to by Wilson J in Kioa v West (supra) (at 604). The assertion by a decision-maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 55 FLR 180 at 184; Chumbairux v Minister for Immigration and Ethnic Affairs (at 495 - 496 ...'
It seems to me these Australian authorities make clear that the mere according of a hearing will not avoid an error of law in the exercise of discretion which will occur where there is not in a real sense, in a proper case, a readiness to depart from the applicable policy.
44 In applying this principle, the judgment in Falc notes certain issues that should be resolved in favour of Falc Pty Ltd, and states that a local town planning scheme that provided that subdivision should not occur in the area was 'no bar to the subdivision but a matter to be taken into account': Falc (527). The judgment then states:
The Tribunal said 'the appeal must turn upon the consideration raised by the first reason given by the Respondent for refusing the appellants' application' and that 'on all points but this point the appellant has made out a case for subdivision'.
In considering this point the Tribunal said:
'... There is hardly any doubt that such controls are necessary. There are a number activities [sic] which would be permitted in a general farming zone which could not be responsibly permitted on lots the size of the proposed lots in a subdivision of that kind. The range and depth of control over land management and use is very different in the case of land zoned general farming than in the case of special rural zones comprising small holdings of 1 or 2 or 3 or 4 hectares. The appellants' witness Mr Griffiths suggested that the requisite controls could be implemented by the imposition of conditions and restrictive covenants. The Respondent contends however that to seek to impose the necessary range and depth of control by means of conditions and restrictive covenants would in the first place be difficult and secondly would bring about a de facto re-zoning; it would be tantamount to this Tribunal disregarding the scheme zoning.' (Emphasis added.)
The Tribunal continued:
'If it was possible to put the scheme zonings to one side I would have little hesitation in concluding that this land was ripe for subdivision. It is a valuable resource which is not presently being utilised to anything like its potential. The use to which it is being put is far short of the highest and the best use to which it could be put. But, in the end I have come to the conclusion that the Respondent's submissions must be accepted. Whatever may be said about the impracticability of attempting to conduct general farming operations on a 40 hectare lot in the Geraldton region and whatever may be said about the general desirability of providing for rural residential use of the land instead, it must I think be accepted that the proposed subdivision runs counter to the existing zoning of the land. It would be to treat the land as if it was zoned special rural, which it is not. In this kind of case the fundamental questions are whether the decision of the Respondent to limit the subdivision of rural land into small holding to those areas designated as special rural zone is in accordance with sound town planning principles and if so, whether the Tribunal should nevertheless allow rural subdivision, having regard for the particular circumstances of the case. The Tribunal has consistently upheld the general policy not to permit rural subdivisions into small holdings unless within an area designated special rural. The Tribunal has consistently held that that policy is in accordance with sound town planning principles. No substantial reason has been advanced in this case why the Tribunal should now change that view (527 - 528) (original emphasis).
45 After noting that the Tribunal in its decision referred to a number of the Tribunal's decisions in which it had allowed rural subdivision outside a special rural zone, as well as to a number of its decisions in which it had followed its policy of not permitting subdivision of rural land into small holdings where the land was not zoned 'special rural', the Falc judgment continues as follows:
Returning to the reasons of the Tribunal in the present case, and reading the reasons in the context of the prior decisions of the Tribunal referred to, I nevertheless conclude that the Tribunal exercised its discretion in a manner giving rise to errors of law.
On the face of the Tribunal's reasons it was prepared to be persuaded to depart from what it regarded as the applicable policy. However, in reaching the conclusion that proper controls can only be achieved by application of the policy, the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case in that it did not properly consider whether the requisite level of control could be achieved by other means. By accepting the respondent's submissions and considering that it was not possible to put the scheme zoning aside, it tied the exercise of its discretion to the existence of the policy. True it is that it considered variation in adjacent subdivisional conditions was undesirable. However, having regard to its reasons as a whole I conclude that it did not just use inappropriate language to describe what might truly be said to be the weighing of planning considerations: cf Laslett v District Council of Mount Gambier (No 2) (1985) 56 LGRA 195. I cannot agree with the conclusion of the learned Commissioner that 'once it is conceded that zoning is a relevant matter to take into account then ... that is the end of the matter' because, while zoning is a relevant matter, it was elevated into a determinative matter. The Tribunal is not saved from error because the respondent has a policy (Subdivision of Rural Land outside the Metropolitan Region) in which it is said the respondent will only create lots of a size not easily accommodated in an urban zone within areas zoned special rural so they will be subject to the land use and management controls which apply within that zoning: the function of the Tribunal is to have regard to that policy but to exercise its discretion in relation to it in the light of the evidence in the particular case. Despite references to such particulars, it does not seem to me that the Tribunal regarded itself as free to exercise its discretion contrary to that policy where the particulars required it to do so. In my opinion, an error of law was therefore present (529 - 530).
46 In Tah Land WASAT, I particularly note the following passage:
The Tribunal has found that the proposal is likely to undermine the established and planned hierarchy of retail centres in SPP 4.2 which is a key component of that policy. In consequence the proposal is contrary to orderly and proper planning [124] (emphasis added).
47 It was put to me for the respondent that I should see the language in [124] just quoted in the context of the judgment as a whole as concerned with the weighing of policy considerations, in which the Tribunal is to be seen as giving predominant weight to the 'key component' of SPP 4.2.
48 It was not in contest that if 'due regard' has been given to relevant policy considerations the weight to be assigned to them is a matter for the SAT, not for the court. That is, the matter of weight assigned in that circumstance will not involve an error of law. See the authority referred to in Falc in this connection: Laslett v District Council of Mount Gambier (No 2) (1985) 56 LGRA 195; and see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [54] (Buss JA, Wheeler and Pullin JJA concurring). This is unless the decision-maker gave inordinate weight to a consideration of relatively little importance or very little weight to a consideration warranting very great importance, such that in either case the decision rendered was 'manifestly unreasonable': Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24, 41 (Mason J, Gibbs CJ, Deane and Dawson JJ concurring) as explained in Federal Commissioner of Taxation v Swift [1989] FCA 413; (1989) 18 ALD 679, 693 - 694 (French J). It was not suggested that that qualification applied here.
49 I will return to the matter of 'due regard' below.
50 I was also reminded by counsel for the respondent that the reading of the reasons in Tah Land WASAT should be approached 'sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole': Politis v Federal Commissioner of Taxation (1988) 16 ALD 707, 708 (Lockhart J); see also Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).
51 However, in my view, as in Falc (530), it is difficult to avoid the conclusion that the SAT did not exercise its discretion in relation to the 'key component' represented by the 'hierarchy' in SPP 4.2 but rather considered that it should be applied as the embodiment of 'orderly and proper planning'. In my view this error is similar to that referred to in Falc (538 - 539) (Ipp J):
The overriding importance that the Tribunal attached to the fact of zoning per se - rather than its legal and practical consequences - appears, further, from the following passage:
'Whatever may be said about the impracticability of attempting to conduct general farming operations on a 40 hectare lot in the Geraldton region and whatever may be said about the general desirability of providing for rural residential use of the land instead, it must I think be accepted that the proposed sub-division runs counter to the existing zoning of the land. It would be to treat the land as if it was zoned special rural, which it is not.'
The legal and practical consequences of the zoning to which particular land is subject may well have relevant town planning considerations. However, the learned Chairman's remarks that the approval of the subdivision 'would be to treat the land as if it was zoned special rural, which it is not', without reference to any resultant town planning consequences, suggest that the Tribunal was simply opposed to such treatment in principle.
52 Although the contrary was put to me for the respondent, I consider that there was no reference in Tah Land WASAT, in the SAT's consideration of whether or not the planning discretion should be exercised, to the 'legal and practical consequences' of the position of the centre on the site as a District Centre in the hierarchy, matters which outweighed the planning considerations that the SAT was considering. To the extent that the SAT considered the implications of the 15,000 sqm retail nett lettable area for a District Centre and for the functions that District Centre could perform, and to the extent that the SAT considered the increase in that area and the functions which the structure plan proposed for the centre on the site (Tah Land WASAT [84] - [89]), the SAT's analysis was in terms that that increase 'shows that the proposed centre would operate as a regional centre, rather than a district centre' [89], and the functions of the District Centre would 'have the effect of switching Kingsway within the hierarchy of SPP 4.2 from a district centre to a regional centre' [90]; see also [81].
53 True it is the SAT did not, unlike the Tribunal in Falc, indicate that the weight of the circumstances was against the application of the relevant policy. The Tribunal's view in that regard in Falc assisted the court in Falc to come to the conclusion it did, that the Tribunal had not 'regarded itself as free to exercise its discretion contrary to that policy' Falc (530). However, in my view of the language that the SAT used, and did not use, the conclusion in respect of the SAT's use of the hierarchy in SPP 4.2 should be the same.
54 It follows I would uphold ground 1.
Grounds 2(a), 2(i), 3 and 455 I group these together as these grounds go to what, on the argument for the appellant, is the error it says the SAT made in its approach to Network City. The appellant's argument is that the SAT so misconstrued the terms or misunderstood the purposes of Network City that it failed to have due regard to Network City as one of the 'relevant policy considerations' to which the SAT was required by PD Act s 241(1) to have 'due regard'. The SAT thereby made an error of law.
56 There is no contest that Network City represented one of the 'relevant planning considerations' to which the SAT was required by PD Act s 241(1) to have 'due regard'.
57 The only authority on the phrase 'due regard' to which I was referred was Maritime Services Board NSW v Liquor Administration Board (1990) 21 NSWLR 180, 195 - 196 (Campbell J). That authority concerns the meaning of the requirement in Liquor Act 1982 (NSW) s 99(3) that a decision-maker, in its decision about the extent to which certain persons should bear the cost of work ordered to be done on licensed premises, have 'due regard' to any agreement or covenant entered into by those persons in relation to the premises. That authority states that 'due regard requires something more than mere "regard"', while adding:
To my mind the word 'due' in s 99(3) directs the first defendant that the regard paid to the agreement or covenant must be adequate in all the circumstances of the case (196).
58 Whatever else is required by the phrase 'due regard to' (emphasis added) than would have been required had the phrase 'have regard to' or 'take into consideration' (on which see Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 [72], [73] (Spigelman CJ, Meagher and Beazley JJA concurring) been used in PD Act s 241(1), it was not in contest that both phrases require more than 'mere advertence' to the relevant matter (Zhang [64]).
59 Further, where the matter to which 'due regard' is to be had is a policy instrument, like Network City, it also appears to have been common ground that there is a failure to have 'due regard to' that matter if the SAT in applying the policy instrument sufficiently misconstrued its terms or misunderstood its purposes. There is authority to that effect, Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189, 208 (French and Drummond JJ):
The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose. In so saying, the Court accepts that the limits within which its jurisdiction to review decisions of the Tribunal is conferred require that it be exercised with restraint. In particular, the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts. The reasons for its decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Pozzolanic Enterprises ... at 286 - 287.
60 Of particular significance to the appellant's submissions in relation to the grounds of appeal here under consideration are Tah Land WASAT [52], [80] (part) and [104] - [107], which need to be read with [56], [57] (part), [59], [60], [66], [67], [69], [71] and [73].
61 Tah Land WASAT [52] says this, referring to Network City, Framework Figure 1.3 (also draft SPP Figure 1), above:
The Framework identifies the centre on the site as an 'activity centre' on an 'activity corridor', namely Wanneroo Road, and adjacent to a second 'activity corridor', namely Hepburn Avenue between Wanneroo Road and Sorrento. However, it is apparent that the Framework contemplates five levels of activity centres on activity corridors with each level identified diagrammatically by different sized dots. The dot used to signify the level of the activity centre on the site is the smallest of the five dot sizes used in the Framework.
62 The SAT reviewed the evidence for Tah Land of Mr Shrapnel and Mr Mackay, and for the Commission of Mr Stephen Allerding, Mr Jeremy Dawkins and Mr Christopher Hair as to the relevance of Network City to the structure plan in Tah Land WASAT [56], [57] (part), [59], [60], [66], [67], [69], [71] and [73]. The conclusions of the SAT as to the relevance of Network City to the structure plan are in Tah Land WASAT [80] (part) and [104] - [107] as follows:
The Tribunal does not accept Mr Mackay's evidence that SPP 4.2 is 'fundamentally flawed', 'at complete odds with ... Network City', 'outdated and inadequate' or 'past its use-by date'. SPP 4.2 is an operative State planning policy which affects the subject matter of the application to which the Tribunal is required to have due regard under s 241(1) of the PD Act. Furthermore, the Tribunal accepts Mr Allerding's evidence that Network City does not replace or overtake SPP 4.2, but rather complements SPP 4.2 by emphasising a mix of uses in activity centres, rather than predominantly retail uses. As Mr Dawkins said, there is no support in Network City for the view that hierarchies and floorspace guidelines are no longer relevant. As Mr Hair pointed out, SPP 4.2 and Network City are very closely aligned in their general thrust. ...
...
Furthermore, the proposed significant increase in retail nett lettable area at the site is not contemplated by Network City. As noted earlier, although the site is identified as an activity centre on or adjacent to two activity corridors in the Framework, the size of the dot signifying the site in the Framework indicates diagrammatically that the site is the lowest level of activity centre. While the site may be the only activity centre north of the Perth CBD which is on or adjacent to two activity corridors, that fact is reflected in the Framework which nevertheless uses the smallest dot to signify the site. It follows that Network City certainly does not contemplate a retail component on the site with a nett lettable area of 32,000 square metres within what Mr Shrapnel described as a 'significant activity centre' and what Mr Mackay described as a 'regionally significant urban element'.
SPP 4.2 is currently under review in light of Network City. It is speculative as to whether the floorspace guide for district centres will be reduced, remain the same or increase through the review. The review is not at this stage a seriouslyentertained planning proposal. However, the Tribunal notes that there is logic in Mr Hair's observation that there is unlikely to be a significant increase in the retail floorspace guides for centres under Network City principles, because if ratios are introduced to ensure other uses relative to retail use, increasing retail guides will make it even more difficult to achieve ratios.
Finally, although, as each of the witnesses for the Commission recognised, there are elements of Mr Mackay's IDP which are consistent with Network City, principally the contemplation of mixed uses at the extremities of the site, the main street precinct and the piazza, the Tribunal shares Mr Dawkins' concern that Mr Mackay's vision may well not be achieved even in the long term. There is a real prospect that the expanded 'box' will remain surrounded by existing and expanded car parks which is entirely inconsistent with Network City.
It follows that the proposal is inconsistent with SPP 4.2 and Network City.
63 It seems to me that in determining from Gray whether or not in respect of the SAT's application of Network City there was 'a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making' (208), I am required to attend to the language of Network City in the documents I quoted earlier. At the same time I am not to apply that language with 'statutory nicety'.
64 Attending to the language of Network City, it is in my view easy to conclude, as supported in my view by all the evidence the Commission considered, that Network City contemplated a hierarchy of centres.
65 However, in my view that evidence also supports the view that a review of SPP 4.2 was to be undertaken which would address 'the location of, and classification criteria for, activity centres': Network City Strategy 2004 page 16 (Action Strategy 1-1(a)). I note also the language in that document, page 14, which after referring to Figure 1.3 states:
The scale of each centre and its associated designation requires further analysis to determine its place in the hierarchy of centres.
66 This in my view indicates both that the size of the dot corresponding to the centre on the site in the Framework Figure 1.3 (or draft SPP Figure 1) was only a possible allocation of a place in a hierarchy, and that shopping floor space as a classification criterion for fixing places in a hierarchy was to be reviewed. In that light, it seems to me that it is not possible to say from the Framework, as Tah Land WASAT [104] and [107] says, that 'the proposed significant increase in retail nett lettable area at the site' under the structure plan 'is not contemplated by Network City', and therefore that 'the proposal is inconsistent with ... Network City'.
67 True it is the SAT had the evidence of Mr Allerding ([66]), Dawkins ([69]) and Mr Hair ([73]) that, in the terms of the description in [73] of Mr Hair's evidence, it was 'unlikely' there would be 'a significant increase in retail floorspace guidelines for centres under the Network City principles'. No other evidence in relation to the matter of the future hierarchy to result from the review under Network City of SPP 4.2 was referred to me.
68 However, in my view it would be an error to read this evidence as evidence that the size of the dot in the Framework corresponded with a contemplated or intended, as opposed to likely, level of activity for the centre on the site. To so read that evidence would it seems to me be a serious misunderstanding of the purposes of Network City.
69 It follows in my view that there is an error of law within grounds 2(a) and 3.
70 Further, it follows that as there is no other evidence in relation to whether the size of the dot in the Framework corresponded to a contemplated or intended level of activity for the centre on the site, there is an error of law within ground 4. It is established that '[t]he question whether there is any evidence of a particular fact is a question of law': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ, Brennan J concurring); see also Paridis [54] (Buss JA, Wheeler and Pullin JJA concurring).
71 The question whether there is an error of law within ground 2(i) stands on a different footing. The SAT clearly acknowledged that SPP 4.2 was under review, in Tah Land WASAT [105].
72 However, that acknowledgement does not appear to me to have entered in any way into the SAT's evaluation of reasons why SPP 4.2 should be departed from and the structure plan approved. If there were no support in the evidence before the SAT proceeding in that way, it seems to me there would be a failure to have 'due regard to' a relevant planning consideration, being whether or not the hierarchy in SPP 4.2, which preceded Network City, was just as significant after Network City as before it. However, if there were support, then the lack of treatment would be a recognition that the review of SPP 4.2 was not relevant to an evaluation of reasons why SPP 4.2 should be departed from and the structure plan approved.
73 In my view, the SAT's treatment of SPP 4.2, for the purposes of its evaluation of reasons why SPP 4.2 should be departed from and the structure plan approved, has not been shown to be without support in the evidence. I am of that view because of the body of evidence I have referred to that, in the terms of the description of the evidence of Mr Hair [73], it was 'unlikely' there would be 'a significant increase in retail floorspace guidelines for centres under the Network City principles'.
74 It follows I would not uphold ground 2(i).
75 I should not leave this section of my reasons without stating that on the evidence as to Network City before the SAT there was a likelihood that Network City would not change the hierarchy in a way that would favour the approval of the structure plan. It seems to me that that was a relevant planning consideration. There is support for that view in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, 125 (Hardie J), to which I return below.
76 However, in my view that aspect of Network City was not one to which the SAT had 'due regard' in Tah Land WASAT. At the same time that of course is not a ground of appeal.
Ground 577 The principle of law applicable to this ground is that described in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ):
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it (emphasis added).
78 The relevant passages from Tah Land WASAT are [70] (read with [59]) and [106]:
Mr Dawkins also gave evidence that, while there are elements of Mr Mackay's IDP that are to be commended, in Mr Dawkins' opinion, Mr Mackay's vision is 'unlikely to be achieved' with the consequence that the likelihood, even in the long run, is that the areas surrounding the big 'box' will remain hardstand car parks.
...
Finally, although, as each of the witnesses for the Commission recognised, there are elements of Mr Mackay's IDP which are consistent with Network City, principally the contemplation of mixed uses at the extremities of the site, the main street precinct and the piazza, the Tribunal shares Mr Dawkins' concern that Mr Mackay's vision may well not be achieved even in the long term. There is a real prospect that the expanded 'box' will remain surrounded by existing and expanded car parks which is entirely inconsistent with Network City.
79 For the appellant, it was contended that in [106] the SAT was invoking as a relevant planning consideration the likelihood of a particular development outcome, whereas the approval of a structure plan was simply to identify what should be allowed to be planned for a particular location. The likelihood of a particular development outcome envisaged by the structure plan was thus an irrelevant consideration.
80 Penley v Development Assessment Commission (1995) 88 LGERA 102 was cited in support of the appellant's contention. However, that authority in my view provides no support for that contention, and indeed is against it in the circumstances of this case.
81 Penley concerned the refusal of a development application for facilities in the far north of South Australia which on the appeal to the Full Court of the Supreme Court of South Australia it was contended should be upheld on the basis the proposed development was 'not economically viable so that it could constitute a substantial impairment to the amenity of the locality'.
82 The Full Court distinguished that contention from a focus in the proceedings below on the effect of the proposed development on an existing facility in the locality and the possible application of the principle from Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, which appears to have been the principle set out by Stephen J (Gibbs, Mason and Aickin JJ concurring in this respect) as follows:
If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration (687).
83 In Penley (Prior J, Cox and Lander JJ concurring), the Full Court characterised and responded to the contention before it as follows:
Here, it was argued that the impact on amenity caused by the failure of the proposed development was a proper planning consideration to be taken into account if such a failure was probable or likely and there was a resultant detrimental impact upon amenity. Whilst accepting the submission that economic viability is a relevant planning consideration in a case where a proposed development is not economically viable and there is a risk that it will not be effectively maintained with the result that the amenity of the locality is substantially impaired, the evidence and submissions in this case do not support such a finding nor do the procedures so far taken warrant allowing that issue to be pursued now (109).
84 In my view the 'relevant planning consideration' just referred to is apt to describe the SAT's approach to the likelihood of the Tah Land 'vision' not being realised, with the result described in Tah Land WASAT [106].
85 It follows I would not uphold ground 5.
86 As will shortly appear, there is a close relationship between this ground and ground 2(f).
Grounds 2(b), (c) and (d), and grounds 6 and 787 I group these together as these grounds go to what, on the argument for the appellant, is the error it says the SAT made in its approach to the evidence before it about the undersupply of shopping floor space in the area in which the centre on the site was located. That argument is that the evidence, in the form of local population increases larger than those anticipated at the time the centre on the site was planned, was at the least capable of pointing to a relevant planning consideration, which in the language of Clive Elliott Jennings [24] had the effect that the 'the planning principles that find expression in [SPP 4.2] are not relevant to the particular application'. The effect of that argument was that, as put by ground 6, the SAT had 'ignore[d] relevant material' (Craig (179)). The effect of that argument was also, as put by ground 7, that the SAT had erred in determining there was no evidence that the centre on the site would not be able to adequately serve as the District Centre for the likely increased population (Bond (355); and see also Paridis [54]), and thereby erred in law in both respects. As a consequence, in the terms of ground 2(b), the SAT failed to have due regard to the undersupply of retail floor space in the City of Wanneroo (ground 2(b)) and to the public interest in providing retail shopping facilities (ground 2(c)).
88 It did not appear to me to be in contest that the provision of retail shopping facilities is in this case one of the 'relevant planning considerations' in PD Act s 241(1). See Kentucky Fried Chicken (687); and note PD Act s 27(a), on which see Marford Nominees Pty Ltd v State Planning Commission (Unreported, WASC, (Murray J), Library No 960047, 1 February 1996) 5. It also did not appear to me to be in contest that the provision of retail shopping facilities is also a planning principle on which SPP 4.2 rests (see SPP 4.2 cl 4.2.3 for Regional Centres, and cl 4.2.4 for District Centres).
89 There was also in this case a joint statement by Messrs Dawkins, Shrapnel and Mackay who agreed that (appellant's documents, vol 1, page 219):
there is a need, as the population expands, for additional retail floorspace in the subregion. It is agreed that other activities and services, and particularly higher-order employment activities, need to be planned for and encouraged in the subregion.
90 Thus, it was appropriate for the SAT to consider the population growth in the area in which the centre on the site was located for its relationship to the need for additional shopping floor space in the region in which the centre on the site was located. The SAT's consideration of and conclusion on the matter are in Tah Land WASAT [55], [98] and [99]:
Furthermore, Mr Shrapnel is of a view that the approval of the structure plan would not undermine the established hierarchy of centres because of the 'uniqueness of the situation ... from the commercial perspective requiring the centre's expansion'. Mr Shrapnel is not aware of any other centre in Perth that has been trading viably at its designated upper limit for several years and will experience significant population growth within a section of its primary catchment area that is fairly well removed from the influence of most competing centres. In particular, the northeast quadrant of the centre's trading area has undergone significant expansion over the past 10 years. Development in the north-eastern quadrant will continue to expand significantly over the next 25 years. A shopper survey in 2003 showed a large amount of support in the local community for the retail services to be expanded. As noted earlier, a significant number of shoppers also lodged submissions in support of the structure plan with the Council.
...
Fifth, Mr Hotchkin submits, relying on Mr Shrapnel's evidence, that the proposal does not undermine the established and planned hierarchy of centres under SPP 4.2. The proposal is not inconsistent with SPP 4.2, because the increase in retail floor area is justified by the substantial increase in urban growth in the northeast quadrant of the centre's primary catchment area, the site has a prime location on the corner of two major roads and there is a real community desire for the proposal at the site.
However, the hierarchy of centres established in SPP 4.2 reflects anticipated growth across the region. There is no evidence that the existing district centre at the site will not be able to adequately serve as the district centre for the likely increased population in the northeast quadrant. If, as Mr Shrapnel observed, the existing centre is trading viably, it will presumably trade even more successfully with the incoming population. Furthermore, the evidence indicates that neighbourhood or local centres are planned in the northeast quadrant. Location of the site on two major roads does not have the effect that the proposal is not likely to undermine the established or planned hierarchy of centres; the hierarchy of centres established by SPP 4.2 is premised on the existing road pattern which is shown on Appendix 2. Finally, community support for an expanded centre at the site does not have the effect that the proposal would not undermine the established and planned hierarchy of centres. While the community in the vicinity of the site may appreciate having a regional centre that is proximate, that does not alter the proper characterisation of the proposal as a regional centre having regard to its size and likely function, whereas it is a district centre in the regional retail hierarchy.
91 The SAT returned to the matter in Tah Land WASAT [124] and [125] above, where it expressed the view that any undersupply of retail floor space, which it acknowledged there might be, 'should be addressed, as a matter of orderly and proper planning, through a review of SPP 4.2 and the Centres Strategy' [124], and '[t]here is no evidence the existing district centre would not be able to adequately cater for the incoming population' [125]. In [128] the SAT indicated there 'may be scope for a considerably more limited retail expansion of the Kingsway Centre than is currently proposed', while not expressing 'any considered view' as 'such an option was not addressed in the proceedings'.
92 However, the SAT had before it the following evidence as to population growth in the area in which the centre on the site was located, and its relation to the growth anticipated at the time the centre on the site was planned, from Mr Shrapnel (ts, Tah Land WASAT, 16 September 2008, 175):
Now, it is true that when Kingsway was planned here, it was expected that that area would urbanise, but at that time the maximum development potential in this area out here was seen as being 6500 residential dwellings. It's now seen as being 10,000 residential dwellings.
When I'm talking about things in detail with Ms Iverach probably tomorrow, we'll be talking about those population forecasts. The DPI is still forecasting lower population forecasts, but even they are higher than what they were forecasting back here.
So whilst the expansion proposed of Kingsway city is not entirely predicated on that population growth by any means, it's nevertheless a fact that a centre at this location was planned with certain population growth assumptions in place.
Now that those assumptions have greatly increased, why keep the cap? Why keep that cap? Just because it's a cap? Because neighbourhood centres are planned in here as well, and I happen to know that in the future planning of this area now, a whole review is being done about the density that should go there. And the density that's going in here is greater than what was initially conceived. So I don't think you can divorce that idea of the need to review caps from those kinds of things.
93 There was no other evidence to which my attention was drawn as to the relation between the population growth that was anticipated in the area in which the centre on the site was located and the assumptions as to population growth underlying SPP 4.2.
94 It is undoubtedly the case, as counsel for the respondent submitted, that this evidence does not establish the extent to which, if at all, the anticipated population growth exceeded the assumed population growth. However, this evidence was of a difference between the two.
95 It is also undoubtedly the case, also as counsel for the respondent pointed out, that this evidence does not establish whether or not the flexibility in SPP 4.2 to respond to market conditions was insufficient to meet any difference between anticipated population growth and assumed population growth: see Witness Conferral Report of Mr Shrapnel and Ms Iverach, pages 11 - 12 (appellant's documents, vol 1, pages 240 - 241) and the transcript of the hearing before the SAT, 17 September 2008, 25 - 34 (appellant's documents, vol 5 pages 237 - 246).
96 In my view it follows that there was no evidence from which the conclusion could be drawn that SPP 4.2 reflected 'anticipated growth across the region' (Tah Land WASAT [99]), and there was evidence from which it could be inferred that the centre on the site would not be able to adequately serve that anticipated growth.
97 True it is that, as appeared to me to be common ground, SPP 4.2 provided for growth in population, as in cl 2.5 (above) and in its provision for neighbourhood and local centres in cl 4.2.5. Clause 4.2.5 is as follows:
Neighbourhood and Local Centres
Neighbourhood Centres and Local Centres which range from corner shops to small centres should be promoted as predominantly for convenience retailing and (in the larger centres) weekly food and groceries shopping. Provision should also be made for small offices which serve the local community, as well as health, welfare and community facilities.
Shopping floorspace should generally be confined to 4,500m2 unless consistent with a Commission endorsed Local Planning Strategy.
The size and location of Neighbourhood and Local Centres should be identified in Local Planning Strategies, district and local structure plans for new urban growth areas.
Planning controls should support the future of small shops and centres by controlling the size of larger centres and limiting new competing retail development outside local centres defined in the Local Planning Strategies and structure plans (emphasis added).
98 As has been seen, Tah Land WASAT [124] notes the italicised part of SPP 4.2 quoted above.
99 However, in my view the question before the SAT was not whether SPP 4.2 provided for growth in population in the region of the City of Wanneroo generally or in any subregion in which the centre on the site was located but whether or not given the evidence before the SAT as to the anticipated growth which was assumed at the time SPP 4.2 was created, SPP 4.2 provided for the level of growth that was anticipated in this case. Tah Land WASAT does not in my view address that question.
100 For the respondent it was put to me, as I understood the submission, that the appropriate planning response to any evidence of anticipated growth greater than that anticipated by SPP 4.2 should be left to the review of SPP 4.2. I took this to be a reference to the review of SPP 4.2 the result of Network City, to which I have previously made reference. It will be noted that Tah Land WASAT [124] states that 'under-supply should be addressed, as a matter of orderly and proper planning, through a review of SPP 4.2 and the Centres Strategy'.
101 For the purpose of that submission, counsel for the respondent referred me to the principle in Coty (125 - 126):
It is important, in the public interest, that whilst the respondent council's local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.
An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned 'Residential-Class C'. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the council dealt with the matter.
102 However, it seems to me that that principle has no application in this case. There was no 'considered conclusion' (other than SPP 4.2 itself, whose application to anticipated population growth of the present order was of course in issue) that would represent future planning policy in such a review. Further, it was in question (in view of anticipated growth of that order) whether there would be a disturbance, by approval of the structure plan, of the status quo represented by the hierarchy such that those undertaking the task of the review would be faced with a set of facts 'substantially different' from that existing when the review was entered.
103 Furthermore, even if the principle had application, it does not, in my view, dispense the decision-maker from having due regard to the matters described at the outset of this section of the reasons.
104 It follows that I would uphold grounds 2(b), (c) and (d), and grounds 6 and 7.
Grounds 2(e) to (h)105 These are the remaining grounds of appeal.
106 I would uphold ground 2(e) and (h) for the same reasons I upheld ground 1.
107 True it is, in relation to ground 2(e), that Tah Land WASAT [123] above referred to evidence about the creation of local jobs by the development proposed under the structure plan. True it also is, in relation to ground 2(h), that there is a reference to community demand and support for the proposal in [99] above. It is not in contest that both matters are relevant planning considerations for the purposes of PD Act s 241(1).
108 However, the matter in each case is dealt with by the SAT on the basis it was inconsistent with 'orderly and proper planning' which the SAT identified with SPP 4.2. This in my view was to disregard the need for it to exercise its discretion on the merits of the case in favour of applying SPP 4.2.
109 However, I would not uphold grounds 2(f) and (g).
110 As to ground 2(f), I am of the view that the SAT had in fact made adverse findings as to amenity and design, in Tah Land WASAT [70]. I considered that paragraph in the context of ground 5, above.
111 As to the remainder of ground 2(f), true it is that the SAT made no findings about any environmental considerations. However, my attention was not drawn to any environmental considerations that were relevant to the application for the approval of the structure plan.
112 As to ground 2(g), the SAT referred to the decision of the Council of the City of Wanneroo, made after the application to the SAT for review of the Council's initial decision, to approve the structure plan, in Tah Land WASAT at [28], above. It made no reference to the later decision of the Council in determining whether or not to depart from SPP 4.2.
113 However, the SAT also referred, in Tah Land WASAT [27], above, to the contrary advice that had been put to the Council and from which the Council departed when it made its later decision. Having regard to that contrary advice, I do not consider it was shown to me that that decision was a relevant planning consideration for the purposes of the SAT decision.
Conclusion and orders114 I have upheld ground 1; ground 2(a), (b), (c), (d), (e) and (h); ground 3; ground 4; ground 6; and ground 7.
115 I understood the respondent to concede that, were I to uphold any of the grounds, that I should order the decision in Tah Land WASAT be quashed. For my authority so to order, see SAT Act s 105(9).
116 Nor did I understand the respondent to take any issue with the submission for the appellant that, were the decision in Tah Land WASAT to be quashed, I should order the matter to be remitted to the SAT with a direction that it be reconsidered by different members of the SAT. In my view that is also an appropriate order to make.
117 I will hear from the parties as to the terms of my final orders.
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