The WA Supreme Court recently refused a remedy due to unwarranted delay in Pennock v City of Busselton  WASC 29.
Writ of certiorari
Mr and Mrs Pennock sought a judicial review of a decision by the City of Busselton to grant approval for a proposed development in Yallingup. The decision was made on 28 February 2019 under the City’s Local Planning Scheme No. 21. They sought remedies of certiorari and a declaration.
The development approval allowed the construction of an over-height house with reduce setbacks. The approval was subject to conditions, including that the development shall be restricted to a maximum of 10.61 metres above the natural ground level.
Mr and Mrs Pennock were the registered owners of a property adjacent to the development.
The Court application was filed on 21 August 2020, and was brought on the single ground that the City erred in law in granting development approval to a proposed development which exceeded 10 metres above natural ground level when it had no power under the Scheme to do so.
The Court considered the text of the Scheme and determined that the City had no power to approve a development application for a building height greater than 10 metres, and that the error in the decision of the City was material and jurisdictional. The development was within the Yallingup Special Character Area that had special provisions, including that no residential development shall exceed a maximum height of 10 metres measured vertically from the natural ground level.
However, the 18 month delay in bring the application meant that under the Rules of the Supreme Court 1971 (WA) the applicants must obtain leave to proceed with the application.
Allanson J noted that the delay was long, and that the explanation for it in the applicant’s affidavit was inadequate and not fully explained. His Honour said that he would be prepared to excuse the delay while the applicants pursued other possible means of challenging the decision, however by 17 June 2019 the City had advised the applicants that the City could not revoke its earlier decision.
His Honour observed that the Court will not readily refuse relief where it finds that a decision was made without power, but there is a well-established residual discretion to refuse to issue a writ of certiorari even where a jurisdictional error is established. The grounds for exercise of the discretion include where an applicant party has been guilty of unwarranted delay, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd.
Notwithstanding that Allanson J found that the City had no power to approve the non-complying development, His Honour refused the relief sought by way of certiorari and a declaration.
Allanson J held:
- the remedy of certiorari is discretionary, and the applicant’s delay in seeking a remedy is a relevant factor to whether the discretion should be exercised in their favour;
- what amounts to unwarranted delay must depend on the particular facts. In the present case the delay was long and inadequately explained;
- the City had not acted in bad faith or purported to exercise a power which they knew was absent. The City officers believed that the discretion to approve a non-complying development applied in the Special Character Areas. It was not an unreasonable construction of the Scheme, but it was not a construction His Honour agreed with;
- the owners of the Yallingup property had suffered prejudice as a result of the delay. In particular, they had demolished the dwelling that was on their land between 23 March and 3 April 2020. That was more than 6 months after Mr and Mrs Pennock had sought legal advice on the matter, and more than a year after the decision giving approval;
- in the circumstances, notwithstanding his findings on the absence of power to approve a non-complying development, Allanson J would refuse the relief sought by certiorari; and
- the remedy of a declaration is also at the discretion of the Court. In the circumstances where the approval will not be quashed, a formal declaration would be of no utility.
This case provides a timely reminder that the Court may refuse a remedy if there is an unwarranted delay in bringing the application, even if the Court might otherwise have found in the applicant’s favour.
For advice and assistance on this and other planning issues relevant to local governments, contact Anne Wood, Partner for Government, Planning & Environment at Kott Gunning on firstname.lastname@example.org or 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
 Rules of the Supreme Court 1971 (WA) O 56 r 2(4)
 (1947) 78 CLR 389, 400