“To give due regard…” in a WA planning context

In planning law there are many circumstances in which decision-makers are required to “have due regard” to certain things.  This post explores what this obligation entails.

 

To do so, I will note:

  • which planning legislation which requires decision-makers to “have due regard”; and
  • in which cases those provisions have been applied.[1]

 

Two key decisions of the Supreme Court show that in a planning context, “to have due regard” to particular matters means that decision makers must give “active and positive” consideration or “proper, genuine and realistic consideration” to those matters.

 

I also observe, as an aside, that this question is more important than it used to be, because there appear to be growing number of applications for judicial review of planning decisions.  In addition to the Marshall and ALH decisions discussed below, allegations as to the failure to have sufficient regard to certain policies featured in the grounds advance in Nairn v Metro-Central Joint Development Assessment Panel.[2]  The issue was also central to the recent Beeliar decisions,[3] those these related to a challenge to an environmental approval not a planning decision in the strict sense.  This (at least perceived) increase may well be due to the significant restriction on third party review rights in Western Australia,[4] with the associated perception that relevant policies are not always being considered.

 

The legislation

In Western Australian planning law,[5] the phrase is found in the:

  • the Planning and Development Act 2005 (WA) (PD Act)
  • the Swan Valley Planning Act 1995 (WA); and
  • the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs).

 

Planning and Development Act: ss 77(1)(a), 80, 124(4), 134(7), 137(2), 241(1) & (2)(d)

In preparing or amending a local planning scheme, the PD Act requires every local government to have due regard to:

  • any State planning policy which affects the local government district (s 77(1)(a));[6]
  • any management programme in a strategic document in force under the Swan and Canning Rivers Catchment Act 2006, Part 4 if it relates to land or waters within or abutting the local government district (s 89); and
  • the purpose and planning objectives of the region planning scheme or amendment to the region planning scheme, if a region scheme exists in the area (s124(4)).

 

In exercising its subdivision powers, the Western Australian Planning Commission (WAPC):

  • subject to Ministerial approval to disregard the Committee’s advice, is to determine an application under ss135 or 136 to subdivide in land in the Swan Valley after having due regard to the advice of the Swan Valley Planning Committee (s134(7));
  • is to not to determine an application under ss135 or 136 to subdivide land to which s78b of the Heritage of Western Australia Act 1990 applies, unless regard has been had to any advice received by the Heritage Council (s137(2));[7] and
  • is, subject to the exceptions in subs(3), to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme (s138(2)).

 

In determining a review application, the State Administrative Tribunal (SAT) is to have due regard to relevant planning considerations (s241(1)), including:

  • any State planning policy which may affect the subject matter of the application; and
  • any management programme for the development control area in force under the Swan and Canning Rivers Catchment Act 2006, Part 4 that may affect the subject matter of the application.

In addition, in the case of an application that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a State planning policy provides for the conservation of that land, the SAT is to refer the matter to the Heritage Council for advice, may receive and hear submissions on behalf of the Heritage Council, may join the Heritage Council as a party, and is to have due regard to the objects of the Heritage of Western Australia Act (s241(2)).

 

Swan Valley Planning Act: s 15(4)

Section 15(4) is similar to s134(7) of the PD Act, in that it requires the City of Swan to have due regard to the advice of the Swan Valley Planning Committee with respect to a development application in the Swan Valley, but the City may determine the application otherwise than in accordance with the Committee’s advice (s15(4)).

 

Local Planning Schemes Regs: sched 1, cl 18(7), sched 2, cls 27(1), 43(1), 51(c), 56(1) & 67.

The provisions of Schedule 1 do not have immediate substantive effect, but instead comprise model scheme provisions.  Part 3 of the Model Scheme relates to zones and use of land.  Within Part 3 cl 18 provides for interpretation of the zoning table (cl 16).  Clause 18(7) provides that:

If the zoning table does not identify any permissible uses for land in a zone the local government may, in considering an application for development approval for land within the zone, have due regard to any of the following plans that apply to the land —

(a) a structure plan;

(b) an activity centre plan;

(c) a local development plan.

 

Schedule 2 of the LPS Regs contains provisions that are deemed to amend existing local planning schemes, overriding them to the extent of any inconsistency.[8]  When an area is covered by:

  • a structure plan that has been approved by the WAPC, decision-makers for development or subdivision approvals must have due regard to, but are not bound by, the structure plan when deciding the application (cl 27(1));[9]
  • an activity centre plan that has been approved by the WAPC, decision-makers for development or subdivision approvals must have due regard to, but are not bound by, the activity centre plan when deciding the application (cl 43(1)); and
  • a local development plan that has been approved by a local government, the local government must have due regard to, but is not bound by, the local development plan when deciding an application for development approval (cl 56(1)).

 

When a local government is preparing a local development plan it is to have due regard to the matters set out in clause 67 to the extent that, in the opinion of the local government, those matters are relevant to the development to which the plan relates (cl 51(c)).

 

Similarly, in considering an application for development approval the local government is to have due regard to the matters set out in cl 67 to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application (cl 67).

 

The case authorities

 

A good starting point is the Tribunal’s broad statement that:[10]

[a]s a matter of orderly and proper planning, as well as by means of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission and the Tribunal on review must give due regard to” the relevant provisions of the local planning scheme.

In effect, decision-makers must “give due regard” to certain things “as a matter of orderly and proper planning” in exercising planning discretion even if the legislation does not explicitly require it!

 

But what does it mean?  It is pretty apparent that the phrase “have regard to” is capable of different meanings, depending upon its context.[11]  It could simply mean to give consideration to something, rather than treat the things as fundamental elements in the decision-making process.[12]

 

In Zampatti v WAPC Ken Martin J held that the fact that s241(1) expressly refers to State planning policies as relevant planning considerations to which due regard must be given does not elevate State planning policies to a superior weighting.[13]  Nevertheless, this does not provide an inflexible legal rule of construction as to the weight to be accorded, as the precise provision under consideration and the particular circumstances in which it is being applied may require a different result.[14]

 

In Tah Land Pty Ltd v WAPC Simmonds J noted that:

  • the phrase “due regard to” requires more than mere advertence to the relevant matter;[15] and
  • where the matter to which due regard was to be had was a policy instrument there will have been a failure to have due regard to that matter if the decision-maker misunderstood the policy.[16]

 

Until very recently the Supreme Court of Western Australia had not very explicitly addressed the question of the core content of the obligation to give due regard in a planning context.[17]  This was addressed by:

  • her Honour Pritchard J in Marshall v Metropolitan Redevelopment Authority (Marshall); and
  • his Honour Martino J in City of South Perth v ALH Group Property Holdings Pty Ltd (ALH).[18]

These cases therefore deserve more focused consideration (see below).

 

Before considering the two decisions separately though, it is worth remarking that in each case the court:[19]

  • first refers to the divergent lines of authorities on the question of what is required to satisfy a different question – the duty to take into account relevant considerations; and
  • then observes that the preponderance of authority in this State favours the requirement that the duty requires proper, genuine and realistic consideration of the relevant matter.

 

Marshall v Metropolitan Redevelopment Authority

 

The Court here was considering the Metropolitan Redevelopment Authority’s obligation to “have regard to” the matters listed in s66(1) of the Metropolitan Redevelopment Act 2011 and to “have due regard to” the matters in cl 5.22 of the Central Perth Redevelopment Scheme.  Pritchard J held that there is no material difference in the meaning and effect of the differently worded obligations to “have regard’ and “have due regard”.[20]

 

The Court found that the phrases “have regard to” and “have due regard to” required the Metropolitan Redevelopment Authority (MRA) to take into account, or give consideration to, the matters listed in the relevant provisions, but that the words must be construed in their statutory context.[21]

 

Pritchard J found that the matters set out in s66(1) of the Metropolitan Redevelopment Act are not of a substantive or measurable kind – they do not require the MRA to be satisfied of the existence of particular facts, criteria or effects, for example.[22]  The provision also required due regard to be had to submissions from referral agencies, and to planning instruments which typically set out broad guidelines or objectives, leaving considerable discretion for a decision-maker.  The Court observes that the matters in s66(1) are not matters which can necessarily be applied, or complied with, when the MRA makes a decision on a development application.[23]  Her Honour concludes that s66, and the Metropolitan Redevelopment Act more generally, as a statutory context suggest that the words “have regard to” in s66(1) and “to have due regard” in cl 5.22 of the Central Perth Redevelopment Scheme give rise to something less than a requirement that the MRA must apply or must act in compliance with, all of the matters listed.[24]

 

The Court finds the legislative purpose of the Metropolitan Redevelopment Act to be to ensure that when the MRA comes to determine a development application, it will have before it all of the information and sources of guidance which will enable it to make a sound planning decision, and that in reaching its decision, the MRA will use such of that information as it considers relevant to the application before it.[25]

 

Pritchard J concludes that when all these considerations are taken into account, the requirement to “have regard to” in s66(1) of the Act and the requirement to “have due regard to” in cl 5.22 of the Scheme means that the MRA must give active or positive consideration to the matters listed, to the extent they apply in a particular case.[26]

 

City of South Perth v ALH Group Property Holdings Pty Ltd

 

The parties to this litigation agreed that the decision-maker – a development assessment panel – was required “to have due regard” to a range of matters under the local planning scheme in determining a development application,[27] and that this required the DAP to give active and positive consideration to Development Control Policy (DCP) 5.1.[28]

 

Martino J endorsed the conclusion of Pritchard J that the content of the obligation on a decision-maker to take matters into account is to be determined by the context in which those words appear.[29]  His Honour then looked at the context of the words “have due regard” and concluded that there was a “clear desirability of ensuring consistent, proper and orderly planning within the City”.[30]  Martino J concluded that he preferred the phrase “proper, genuine and realistic consideration” to the phrase “active and positive consideration” because the words “positive consideration” “might suggest that the planning scheme created an obligation to reach a decision that was consistent with DCP 5.1” and that was not the Court’s intention.[31]

 

Conclusion

Australian courts have given a variety of descriptions for the quality of the assessment required of decision-makers.[32]  Therefore it was necessary to ask what qualitatively is required – what constitutes due regard – in a planning context.  The guidance from the Supreme Court of Western Australia is that, in a Western Australian planning context, “to have due regard” to enumerated matters requires that the relevant matters be given:

  • “active and positive” consideration;[33] or
  • “proper, genuine and realistic” consideration.[34]

 

Whether or not “proper, genuine and realistic” consideration has been given to a particular consideration requires close attention to be paid to such matters as the terms of any relevant statement of reasons and the nature and extent of the material before the decision-maker.[35]

 

[1] The term has been referred to in a vast number of cases, but I will focus on decisions where the content of the phrase is considered.

[2] Nairn v Metro-Central Joint Development Assessment Panel [2016] WASC 56.

[3] Save Beeliar Wetlands (Inc) v Jacob [2015] WASC 482; Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; 216 LGERA 201.  This was a challenge to the validity of an environmental approval.

[4] For a summary of the WA position compared to the remainder of Australia, see the Hon Judge Christine Trenorden, “Third-Party Appeal Rights: Past and Future” (18 November 2009) available online at www.sat.justice.wa.gov.au.  The Department of Planning confirmed in September 2013 that no reform to this area was being considered: “Planning makes it happen: phase two”, Planning Reform Discussion Paper (September 2013), p7.

[5] The phrase is also found in objects clauses of many Western Australian statutes.

[6] Leighton v  The Honourable Mr John Day [2014] WASC 164 at [61]; Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 at [15] and City of South Perth v ALH Group Property Holdings Pty Ltd (2016) 216 LGERA 96; [2016] WASC 141 at [42].  Note too, that State Planning Policy No 1 extends this to require the WAPC and local governments to have due regard to the entire State Planning Framework.

[7] This is not a use of “due regard”, but the similarity to ss 134(7) and 138(2) is still striking, and given the conclusions of Pritchard J in Marshall, the different wording may not matter.

[8] The SAT explains the effect in Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [40] to [48].

[9] Hanham and Western Australian Planning Commission [2016] WASAT 28 at [74].

[10] Landpark Holdings Pty Ltd and WAPC [2007] WASAT 130 at [28].

[11] Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at 163 [54]; Re Dr Ken Michael AM; Ex Parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; 25 WAR 511 at 528-529 [54]-[55].

[12] Singh, 163 [54].

[13] Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 at [125], [132]-[137].  This passage was applied in Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 at [112]-[114].

[14] Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527; 200 LGERA 375 at [226].

[15] Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 [72], [73], applied in Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [58] (Simmonds J).

[16] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, 208 applied in Tah Land Pty Ltd v WAPC [2009] WASC 196 at [59] (Simmonds J).

[17] In Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97 at [80]-[83] the Full Court (Murray, Steytler and McKechnie JJ) considered an argument that the provision that preceded s 77(1)(a) of the PD Act that used the phrase “have due regard” required ‘proper’ or ‘genuine’ consideration, but did not express a view on the construction proffered in the course of explaining that the argument was unpersuasive on the facts of that case.  In addition, the Court of Appeal has considered matters to which the Prisoners Review Board must have regard to (and give weight as fundamental elements in a decision), but this is quite a different statutory context: Prisoners Review Board v Freeman [2010] WASCA 166 at [129] (Pullin, Newnes and Murphy JJA).

[18] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [106]–[116] (Pritchard J) and City of South Perth v ALH Group Property Holdings Pty Ltd (2016) 216 LGERA 96; [2016] WASC 141 at [40]-[50] (Martino J).

[19] A v Corruption and Crime Commissioner [2013] WASCA 288; 306 ALR 491 at [88]-[92] (Martin CJ and Murphy JA note that it was not necessary to prefer either line): see Marshall at [108] and ALH at [40]-[41].

[20] Marshall at [106].

[21] Marshall at [109], citing CIC Insurance Ltd v Bankstown Football Club [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ) and AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 at [10], [23]-[24], [36], [38] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).

[22] Marshall at [110].

[23] Marshall at [111].

[24] Marshall at [112]-[113].

[25] Marshall at [114].

[26] Marshall at [115]-[116].  The phrase ‘active consideration’ is footnoted: cf Tobacco Institute of Australia Ltd v National Health & Medical Research Council (1996) 71 FCR 265, 277 (Finn J).

[27] ALH at [9].

[28] ALH at [43].

[29] ALH at [44], referencing Marshall at [109].

[30] ALH at [45].

[31] ALH at [46].

[32] Justice Alan Robertson, “What is ‘substantive’ judicial review?  Does it intrude on merits review in administrative decision-making? (2016) 85 AIAL Forum 24 at 32.

[33] Marshall at [115]-[116].

[34] ALH at [46].

[35] Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [36] (Allsop CJ, Flick and Griffiths JJ).