2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale
[2021] WASC 339
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: 2 THOMAS ROAD PTY LTD -v- SHIRE OF SERPENTINE-JARRAHDALE [2021] WASC 339
CORAM: SMITH J
HEARD: 21 JUNE 2021
DELIVERED : 7 OCTOBER 2021
FILE NO/S: GDA 10 of 2020
BETWEEN: 2 THOMAS ROAD PTY LTD
Appellant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: MS M CONNOR, MEMBER
Citation: 2 THOMAS ROAD PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2020] WASAT 107
File Number : DR 192 of 2019
Catchwords:
Administrative law - Development within Jandakot Groundwater Protection area - Appeal from State Administrative Tribunal dismissing a review of the decision refusing development approval for a land use of Extractive Industry
Construction of town planning scheme - State Planning Policy 2.3 - Jandakot Groundwater Protection - Words 'in accordance with' considered
Legislation:
Environmental Protection Act 1986 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P McQueen |
| Respondent | : | Mr C A Slarke |
Solicitors:
| Appellant | : | Lavan Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107
Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Mount Barker Properties Ltd v District Council of Mount Barker [2001] SASC 249; (2001) 80 SASR 449
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 363 ALR 188
SMITH J:
The appeal and the result
This is an appeal from a decision of the State Administrative Tribunal on 3 September 2020, dismissing an application for review of a decision, made by the Shire of Serpentine-Jarrahdale (the Shire) on 6 September 2019, refusing development approval for a sand extractive operation on Lot 1 (No 1153) Thomas Road Oakford (the Land).
The application for a review was made to the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA). By operation of s 27 of the State Administrative Tribunal Act 2004 (WA) a review by the Tribunal of a reviewable decision is by way of a hearing de novo (from the beginning), and the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
An appeal lies to this court on a question of law arising out of a decision of the Tribunal, pursuant to s 105 of the State Administrative Tribunal Act if the court grants leave to appeal.
Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that leave be granted. It will be relevant to consider whether an applicant seeking leave to appeal has shown that there is sufficient doubt with respect to the decision under appeal to justify the grant of leave.[1]
[1] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [106].
Whilst described as an appeal, s 105 of the State Administrative Tribunal Act confers original not appellate jurisdiction in the nature of judicial review to examine for legal error what has been done in the Tribunal.[2] The existence of a question of law is not merely a qualifying condition to ground the jurisdiction of the court to hear the appeal, but also the subject matter of the appeal itself.[3]
[2] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [71] (Buss JA).
[3] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 [73] (Buss JA).
This appeal to the court raises issues which only go to the proper construction of cl 5.20.3 of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2), and State Planning Policy 2.3 Jandakot Groundwater Protection (State Planning Policy 2.3).
The grounds of appeal are as follows:
1.The Tribunal erred in law by concluding that clause 5.20.3 of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 prohibits any development in the Rural Groundwater Protection Zone that involves any clearing of land.
2.The Tribunal erred in law by finding that the assessment of whether clearing is 'excessive', for the purposes of clause 5.20.3 of the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, is to be conducted by a quantitative assessment, in circumstances where the provision, properly construed, requires a qualitative assessment.
For reasons that follow, I am of the opinion that leave to appeal on ground 1 should be refused, as this ground has not been made out. Having made this finding, ground 2 of the appeal does not arise, and the appeal should be dismissed.
Background
The Land comprises 7.4386 ha in area. Improvements on the Land include a dwelling, and associated outbuildings (which outbuildings include disused poultry sheds). The Land is relatively level in an east to west direction and slopes in a north to south direction, rising to a high point in approximately the centre of the Land.[4]
[4] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [8] - [10] and [14].
The Land lies within the Bassendean Dunes system (DoW2015), with a surface geology described as quartz sand.[5]
[5] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [11].
The Land is located within a Priority 2 (P2) area of the Jandakot Underground Water Pollution Control area.
It is also located within the Jandakot Groundwater Protection area.[6]
[6] State Planning Policy 2.3 Jandakot Groundwater Protection, Figure 1.
A flora survey undertaken by Strategen Environmental in September 2018 identified that the subject Land contains 3.15 ha of native vegetation, comprised of two native vegetation types (VT1 - 1.46 ha in area and VT2 - total area of 1.69 ha), as well as cleared and/or developed areas (C - 4.28 ha). The vegetation types are described as follows:[7]
VT 1Open shrubland of Adenanthos cygnorum and Banksia ilicifolia over Xanthorrhoea preissii and Kunzea glabrescens over closed herbland of Dasypogon bromeliifolius, *Ehrharta calycina, and *Ursinia anthemoides
VT 2Open low woodland of Banksia attenuata, Banksia menziesii and Banksia ilicifolia over Xanthorrhoea preissii and Adenanthos cygnorum over closed herbland of Phlebocarya ciliata, Stirlingia latifolia and Patersonia occidentalis
CCleared with scattered non-native and ornamental trees and occasional remnant native trees.
[7] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [11].
At the hearing before the Tribunal two environmental experts gave evidence about the condition rating of the native vegetation across the Land. One expert, Mr Newsome, considered that the southern patch (VT 2) was in very good condition and the northern patch (VT 1) was in good to degraded condition. The other expert, Dr Hollick, considered the southern patch (VT 2) to be in very good to excellent condition and the northern patch (VT 1) to be a mosaic of good and degraded condition with each constituting approximately half of the area.[8]
[8] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [12].
The environmental experts agreed that some of the vegetation on the subject Land met the diagnostic criteria for Banksia Woodlands Threatened Ecological Community as listed under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).[9]
[9] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [13].
The development application made by the appellant seeks approval to extract sand resources from an area of the Land that equates to 4.31 ha (of the total area of 7.4386 ha). Of the total amount of 3.15 ha of native vegetation it is proposed that 2.69 ha is to be permanently cleared from the Land (leaving .46 ha of native vegetation on the Land).[10]
[10] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [16].
It is intended that extraction will progress in a northerly direction and be undertaken in two stages. The first stage will involve clearing and excavation of the southern portion of the Land to the peak of the hill and the second stage will entail clearing and subsequent excavation of the northern portion of the Land. Extraction would include excavation downward whilst also constructing a working bund/batter along the edges of the excavation.[11]
[11] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [17].
The Shire of Serpentine-Jarrahdale Town Planning Scheme No 2
The text of cl 5.20 of TPS 2 is as follows:
5.20RURAL GROUNDWATER PROTECTION ZONE
5.20.1The use and development of land within the Rural Groundwater Protection Zone shall be in accordance with the provisions of the Scheme and Statement of Planning Policy No. 2.3 (Jandakot Groundwater Protection Policy).
5.20.2[12] Land use permissibility within the Rural Groundwater Protection Zone shall be in accordance with the following use permissibilities. All other uses are prohibited within the Zone.
[12] It is noted that the copy of the Serpentine-Jarrahdale Town Planning Scheme No 2 in the Agreed Bundle cl 5.20.2 is wrongly numbered as cl 5.1202.
Animal Husbandry AA
Aquaculture AA
Caretaker's Dwelling AA
Dwelling AA
Equestrian Activity SA
Floriculture (Extensive) AA
Fodder and Pasture AA
Hobby Farm AA
Home Business AA
Home Occupation AA
Industry Extractive SA
Orcharding AA
Poultry Farm (Housed) SA
Private Tree Plantation AA
Radio, TV and
Communication Installation AA
Public Utility AA
Recreation Public AA
Stable AA
Stall-wayside AA
Viticulture AA
5.20.3In exercising its discretion in respect of the uses specified under clause 5.20.2, and having regard to the provisions of Statement of Planning Policy No. 2.3, the Council shall only permit such uses where it is satisfied that the use does not involve excessive nutrient application or clearing of land, or risk of damage to any on site vegetation or risk of contamination to the Jandakot Groundwater Protection area.
Although the text of cl 5.20.1 and cl 5.20.3 refers to Statement of Planning Policy No 2.3, it was not in issue before the Tribunal or in the appeal that the policy referred to is State Planning Policy 2.3.
The decision of the Tribunal
The Tribunal found that the development proposed by the appellant was not capable of approval as there was no discretion to permit the proposed use as it involved the 'clearing of land' that is, clearing of native vegetation and will (if approved) cause actual 'damage to on site vegetation' on the Land.[13]
[13] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [58].
The first issue considered by the Tribunal is the issue which is the subject of this appeal. It is whether cl 5.20.3 of TPS 2 precludes approval of the proposed development.[14] The Tribunal properly identified that if this issue was determined against the appellant then there was no discretion to approve the proposed development and the other issues identified by the parties fell away.[15]
[14] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [28].
[15] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [29].
After reciting the full text of cl 5.20.3 of TPS 2 and relevant provisions of State Planning Policy 2.3 and summarising the submissions put by each of the parties, the Tribunal set out the established principles of construction of planning schemes, and then found when these principles of interpretation were applied to the construction of cl 5.20.3 of TPS 2 that there was no discretion conferred on the Shire to approve the proposed development.
In making this finding, the Tribunal found:
(1)It is clear that the intent of cl 5.20 of TPS 2, by reference to State Planning Policy 2.3, is to ensure that use and development of land within the Rural Groundwater Protection Zone maximises protection against water quality contamination risk in the Jandakot Groundwater Protection area based on the objective of risk minimisation.[16]
[16] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [50].
(2)Land use permissibility within the Rural Groundwater Protection Zone is set out under cl 5.20.2 of TPS 2. However, cl 5.20.3 provides a further restriction on the permissibility of uses by specifying that the consent authority 'shall only permit such uses where it is satisfied that the use does not involve excessive nutrient application or clearing of land, or risk of damage to any on site vegetation or risk of contamination to the Jandakot Groundwater Protection area'.[17]
[17] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [50].
(3)'Clearing' and 'on site vegetation' only relates to native vegetation and does not include introduced or exotic vegetation. The relevant objective contained in cl 3 of State Planning Policy 2.3 seeks 'to maintain or increase natural vegetation cover' and cl 6.1 of State Planning Policy 2.3 refers to the 'retention of native vegetation' and the '[p]rotection and enhancement of native vegetation'.[18]
[18] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [51].
(4)On a literal reading of cl 5.20.3 of TPS 2 it is equivocal whether the word 'excessive' qualifies both 'nutrient application' and 'clearing of land'. However, when read in the context of the provision as a whole and with the provisions of State Planning Policy 2.3, to which the consent authority is to have regard to under this clause, it is clear that the word 'excessive' only qualifies 'nutrient application' and that any clearing of native vegetation on land within the Rural Groundwater Protection Zone cannot be approved under the clause for the following reasons:[19]
[19] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [52].
(a)It is clear on a literal reading of the provision that the consent authority may only permit uses where the use does not involve 'risk of damage to any on site [native] vegetation'. Clearly, if the use cannot cause risk of damage to any on site native vegetation, then the use cannot involve the clearing of native vegetation, as the 'greater includes the lesser'. The adjective 'excessive' does not qualify the words 'clearing of land' on the proper interpretation of the provision and the provision only allows approval of a use which 'does not involve … clearing of [native vegetation on] land'.[20]
(b)The provisions of State Planning Policy 2.3 are given status under TPS 2 in the Rural Groundwater Protection Zone by cl 5.20.1 and cl 5.20.3 of TPS 2. In the context of cl 6.1 of State Planning Policy 2.3 the drafter of TPS 2 could not have intended that any (and not just 'excessive') clearing of native vegetation would be allowed in the Rural Groundwater Protection Zone.[21]
(c)There is a logical inconsistency in the submission that 'clearing' of native vegetation is contemplated by cl 5.20.3 while 'damage' to native vegetation is not. There is no basis for reading 'risk of damage to any on site vegetation' as referring only to vegetation that is not proposed to be cleared under a given development application. This interpretation would involve reading in the words 'that is proposed to be retained' after (the words) 'on site vegetation'. To do so would be inconsistent to the fundamental principles embodied in State Planning Policy 2.3 which seek to 'maintain or increase natural vegetation cover over the policy area' and considers the 'protection and enhancement of native vegetation as a key requirement of any new development'.[22]
(5)The submission that to construe the prohibition in cl 5.20.3 as applying to all clearing of land would have a perverse outcome resulting in the prohibition of development of the subject land and other parcels of land in the Rural Groundwater Protection Zone which required any level of clearing is rejected because:[23]
(a)the prohibition on clearing of land when understood in the context of the provisions of State Planning Policy 2.3 is that 'clearing of land' only relates to native vegetation and does not include introduced or exotic vegetation;
(b)it may well be that there are lots within the Rural Groundwater Protection Zone that will have restricted land use permissibility arising from the construction of cl 5.20.3 of TPS 2. However, this was clearly the intent of the drafters to ensure the protection of native vegetation over the Jandakot Groundwater Protection area in accordance with the objectives of State Planning Policy 2.3; and
(c)there is at least 4.28 ha of the subject land that has been cleared of native vegetation and capable of some form of development.
[20] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [53].
[21] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [54].
[22] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [55].
[23] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [56].
In the alternative, the Tribunal found that even if the appellant's interpretation of cl 5.20.3 of TPS 2 was correct and the word 'excessive' qualifies 'clearing of land' and risk of damage to any site vegetation is read as 'risk of damage to any on site vegetation that is proposed to be retained', in the circumstances of this case, the proposed development would still not satisfy the provision and consequently there would be no discretion to approve the development. This is because the clearing of 2.69 ha out of a total of 3.15 ha of existing native vegetation on the Land (constituting 85% of the existing native vegetation on the Land) of which, according to Mr Newsome, 1.56 ha (or 58% of the native vegetation to be cleared) is in very good condition and contains species identified as Banksia Woodlands Threatened Ecological Community, would be 'excessive' clearing of land for the purposes of cl 5.20.3 of TPS 2.[24]
[24] 2 Thomas Road Pty Ltd and Shire of Serpentine-Jarrahdale [2020] WASAT 107 [57].
The appellant's submissions in the appeal
In ground 1 of the appeal, the appellant contends that, properly construed, cl 5.20.3 of TPS 2 only prohibits excessive clearing of land within the Rural Groundwater Protection Zone rather than prohibiting clearing altogether. In other words, development approval may be lawfully issued under TPS 2 for land in the Rural Groundwater Protection Zone in respect of a proposal that involves some clearing of land, in circumstances where the clearing is considered by the decision-maker (acting reasonably and having regard to all aspects of the planning framework) to not be excessive.
Further, the appellant contends that the prohibition on uses in cl 5.20.3 not involving a 'risk of damage to any on site vegetation' do not deal with any risk to on site vegetation associated with clearing but with other risks to on site vegetation. It says the prohibition on clearing of on site vegetation only extends to excessive clearing. Thus, it says, properly construed, the word 'excessive' as it appears in cl 5.20.3 of TPS 2 qualifies both the terms 'nutrient application' and 'clearing of land'.
Consequently, the appellant argues in finding that cl 5.20.3 of TPS 2 absolutely prohibits any clearing of land within the Rural Groundwater Protection Zone, the Tribunal made an error of statutory construction.
The Tribunal found that the prohibition on development in cl 5.20.3 only extends to native vegetation. The appellant argues that it is immaterial whether the prohibition on excessive clearing is only applied to excessive clearing of native vegetation, or whether it applies to clearing of exotic or native vegetation. However, the appellant agrees that nearly all of the vegetation on the Land is native vegetation.
In support of its argument the appellant says that when construing the prohibition created on development in cl 5.20.3 proper regard must be given to whether only excessive clearing is prohibited and in determining this issue regard must be had to the fact cl 5.20.2 provides as a land use permissibility the use of Industry Extractive as a discretionary permitted use after notice of the application has been given in accordance with cl 64 of the deemed provisions.[25]
[25] Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
The appellant also points out that:
(a) it is relevant when construing cl 5.20.3 to have regard to the fact that a large number of uses are permitted in the Rural Groundwater Protection Zone, whereas in the Conservation Zone there is an absolute prohibition on the clearing of land, without the prior approval of the Council and that where clearing is allowed the land uses are limited and do not include Industry Extractive;[26]
(b)State Planning Policy 2.3 does not preclude the use of Industry Extractive or the clearing of land. In particular, the appellant contends the underlying objective of State Planning Policy 2.3 is not to protect vegetation but to protect water quality. It points out that cl 6.2 of State Planning Policy 2.3 creates three priority areas, P1 (water catchment reservation) where the criteria for acceptability of land uses is based on the objective of risk avoidance, P2 (Rural - Water Protection zone) where the criteria for acceptability of the land uses is based on the objective of risk minimisation, and P3 (Urban and Industry zones) where the criteria for acceptability of land uses is based on the objective of risk management; and
(c)it is contemplated in State Planning Policy 2.3 land can be developed in the P2 zone (such as the Land which is the subject of the appeal) where the development is compatible with the mitigation of risk associated with groundwater protection. In ascertaining what is to be protected in a P2 area, cl 6.2(g) of State Planning Policy 2.3 provides that guidance on the acceptability of land uses, activities and subdivision within P1, P2 and P3 areas within the policy area is found in Water quality protection note 25: Land use compatibility tables for public drinking water source areas (Water quality protection note 25).
[26] Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.14, Appendix4D - Conservation Zone.
Water quality protection note 25 is a policy prepared by the Department of Water who is responsible for managing and protecting the State's water resources, including those used for public drinking water. The appellant points out that Table 2 of the policy provides that in respect of the land use or activity that is Industry - extractive (gravel, hard rock, limestone, peat and sand quarry) that these uses in P2 should be compatible with conditions 9, 12 and 13, and that none of these conditions relate to or concern the clearing of land.
In the appeal the appellant sought to make submissions about the terms of State Planning Policy 2.3, when cl 5.20 of TPS 2 first became operative when published in the Gazette on 10 March 2006. As at 10 March 2006 State Planning Policy 2.3 was numbered 6. At the hearing before the Tribunal, the appellant did not raise the earlier version of the policy. Even if it had been referred to by the appellant, in construing cl 5.20 of TPS 2 it would not have been open to the Tribunal to have regard to the terms of any prior versions of the policy. This is because pursuant to s 29 and s 31 of the Planning and Development Act, amendments to a State planning policy have force and effect when approved by the Governor and published in the Gazette; and the Tribunal was required to construe State Planning Policy 2.3 as it applied by operation of cl 5.20 of TPS 2. [27]
[27] Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213 [106] - [107].
Consequently, the Tribunal was required to have regard to the provisions of State Planning Policy 2.3 as amended as at the date the Tribunal determined the appellant's application for review.
Principles of construction - general principles - a purposive approach
Pursuant to s 68(1) of the Planning and Development Act, a local planning scheme is to be construed as if it formed part of the Act. Consequently, the construction of a local planning scheme is to be approached in the same way as construction of a statutory provision.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.[28]
[28] Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306 [46] (Buss P, Murphy JA & Beech J agreeing).
The importance of construction of legislation is to begin in the text itself by regard to its context and purpose. Statutory context within immediate provisions and the whole of an Act is to be considered from the beginning of the task. The Court of Appeal summarised these well-known principles in Australian Unity Property Ltd v City of Busselton:[29]
The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use. As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.'
This focus on the statutory text may be seen as an aspect of the rule of law. It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text. This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:
'The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature"… it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.'
Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates. As French CJ observed in Alcan:
'The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [(1991) 172 CLR 319 at [340] as: ''dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage." In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.'
[29] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [79] ‑ [81] (citations omitted).
Thus, context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.[30]
[30] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 [408] (Brennan CJ, Dawson, Toohey & Gummow JJ, Gaudron J agreeing); Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306 [47] (Buss P, Murphy JA & Beech J agreeing); see also Conservation Council of WA Inc v The Hon Stephen Dawson MLC, Minister for Environment; Disability Services [2019] WASCA 102 [85] ‑ [87] (Buss P & Beech JA).
Regard must also be given to the purpose and object of the text to ascertain the intention of the legislature in making the law in question. The responsibility of a court in this regard was described by Gageler J in Work Health Authority v Outback Ballooning Pty Ltd:[31]
'[O]ne of the surest indexes of a mature and developed jurisprudence' is 'to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning'. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. That a finding of purpose can involve a 'contestable judgment' only heightens that responsibility.
'The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation' and 'are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked'. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to 'the constitutional relationship between courts and the legislature'.
[31] Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 363 ALR 188 [76] ‑ [77] (citations omitted).
In construing a legislative provision the task is not to have regard to any assumptions about the desired operation of the relevant provisions of an Act.[32]
[32] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J); see also Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
It also must be borne in mind as the Court of Appeal pointed out in Australian Unity Property Ltd v City of Busselton that:[33]
In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.
[33] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [84] (citations omitted).
Disposition
The legislative framework - TPS 2, State Planning Policy 2.3 and cl 67 of the deemed provisions for planning schemes[34]
[34] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, pt 9.
Local planning schemes are prepared or adopted by a local government and following advertisement and other necessary regulatory approvals are approved by the Minister (responsible for the administration of the Planning and Development Act) and following approval are published in the Gazette.[35] Once published in the Gazette, a local planning scheme has effect as if it was enacted by the Planning and Development Act.[36]
[35] Planning and Development Act 2005 (WA), pt 5, div 4.
[36] Planning and Development Act 2005 (WA), s 68(1).
State planning policies are made by the Planning Commission with the approval or on the direction of the Minister.[37] A State planning policy is required to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments and may make provision for any matter which may be the subject of a local planning scheme.[38]
[37] Planning and Development Act 2005 (WA), s 26.
[38] Planning and Development Act 2005 (WA), s 26(2) and (3).
Section 73 of the Planning and Development Act requires a local government to be responsible for enforcing the observance of a local planning scheme. Section 77 of the Planning and Development Act requires a local government in preparing or amending a local planning scheme to have due regard to any State planning policy which affects its district and provides for a State planning policy, with or without modifications, to be incorporated into a local planning scheme.
Section 77(1) and (2) of the Planning and Development Act provides:
77.State planning policies, effect of on scheme
(1)Every local government in preparing or amending a local planning scheme -
(a)is to have due regard to any State planning policy which affects its district; and
(b)may include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect.
(2)Where a scheme includes a provision referred to in subsection (1)(b) -
(a)the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and
(b)the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.
As set out in [18], cl 5.20.1 of TPS 2 requires that the use and development of land within the Rural Groundwater Protection Zone shall be in accordance with the provisions of the Scheme (TPS 2) and State Planning Policy 2.3. The effect of this clause is not that State Planning Policy 2.3 is to be read as part of cl 5.20 of TPS 2, but that the use and development of land within this zone 'shall be in accordance with' State Planning Policy 2.3.
The words 'in accordance with' can be interpreted as 'to be consistent with', 'correspond with' or 'conform with'.[39]
[39] See Mount Barker Properties Ltd v District Council of Mount Barker [2001] SASC 249; (2001) 80 SASR 449 [24] (Debelle J).
Clause 67(2) of the deemed provisions for planning schemes requires that when a local government authority is considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government has to have due regard to a number of specified matters, including any approved State planning policy.[40]
[40] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, pt 9, cl 67(2)(c).
Consequently, in determining a review of a decision made by a local planning authority, pursuant to s 241 of the Planning and Development Act the Tribunal is to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application.
In this matter the Tribunal found that there were a number of State planning policies which were relevant to the development which due regard had to be given pursuant to cl 67 of the deemed provisions, including State Planning Policy 2.3, in particular, the reference in that policy to the Water quality protection note 25 - Land use compatibility tables for public drinking water source areas.
The requirement to give due regard to in a planning context simply requires that a decision-maker must give 'active or positive consideration to the matters listed, to the extent that they apply in any particular case',[41] whilst retaining a discretion to give such weight to those considerations as it considers appropriate in the circumstances and is something less than a requirement that a decision-maker must apply or act in compliance with the matters listed.[42] However, where a decision-maker is bound to give due regard to a policy, consideration of the policy is a mandatory consideration.[43]
Construction of cl 5.20 of TPS 2
[41] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [115] (Pritchard J).
[42] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [112] - [114] (Pritchard J).
[43] Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 [161] - [165] (Quinlan CJ).
Given that cl 5.20 of TPS 2 requires that the use and development of land in the Rural Groundwater Protection Zone shall be in accordance with State Planning Policy 2.3 the respondent as the decision-maker was required to give more than due regard to State Planning Policy 2.3.
Consequently, in considering the development application, the respondent was required when considering all relevant factors whether what was proposed was 'in accordance with' the relevant provisions of State Planning Policy 2.3.
The operative words 'shall be in accordance with' in cl 5.20 can only be construed as a requirement that the development application be 'in accordance with' in the sense of 'conform with' the relevant provisions of State Planning Policy 2.3, and when read with the words 'shall only permit' in cl 5.20.3, cl 5.20.3 must be read as creating a prohibition on uses unless the specified criteria are met, which criteria are to be construed by regard to State Planning Policy 2.3.
To ascertain the purpose and object of the text of cl 5.20, which regulates development within the Rural Groundwater Protection Zone, the starting point is to have regard to its context and purpose which necessarily must begin with a consideration of State Planning Policy 2.3. The objective of State Planning Policy 2.3 is not only to protect water quality but is to protect groundwater quality and quantity, and to do so it is also an objective of the policy to protect ecosystems that maintain groundwater quality which includes native vegetation.
These objectives of State Planning Policy 2.3 emerge from the objectives of the policy in cl 3, and the groundwater protection principles in cl 5.
Clause 3 of State Planning Policy 2.3 provides:
3OBJECTIVES
The objectives of this policy are:
…
·To protect groundwater quality and quantity in the policy area in order to maintain the ecological integrity of important wetlands that are hydraulically connected to that groundwater, including wetlands outside the policy area;
…
·To maintain or increase natural vegetation cover over the policy area.
Clause 5 of State Planning Policy 2.3 provides:
5GROUNDWATER PROTECTION PRINCIPLES
Land use intensification is associated with an increased risk of drinking water contamination. In recognition of this, groundwater protection is based on the following principles:
…
·Groundwater quality and quantity are inexorably linked and should not be managed in isolation;
…
·Groundwater dependent ecosystems, including native vegetation and wetlands, provide benefits, including maintaining groundwater quality.
To achieve these objectives, State Planning Policy 2.3 specifies in cl 6 a number of policy measures which include measures that are to apply to native vegetation and wetlands, and land uses. Native vegetation is defined in Appendix 2 to mean vegetation as defined in s 3(1) and s 51A of the Environmental Protection Act 1986 (WA).[44]
[44] Section 3(1) of the Environmental Protection Act1986 (WA) defines native vegetation to mean indigenous aquatic or terrestrial vegetation, and includes dead vegetation unless that dead vegetation is of a class declared by regulation to be excluded from this definition but does not include vegetation in a plantation and s 51A provides native vegetation has the meaning given by s 3(1) but does not include vegetation that was intentionally sown, planted or propagated unless - (a) that vegetation was sown, planted or propagated as required under this Act or another written law; or (b) that vegetation is of a class declared by regulation to be included in this definition.
Clause 6.1 specifies that in respect of native vegetation and wetlands that:
The retention of native vegetation and wetlands is beneficial in protecting and maintaining the quality of the groundwater resource and is fundamental to the objectives of this policy. Protection and enhancement of native vegetation and wetlands is a key requirement of any new development.
In cl 6.2 the acceptability of broad land uses for the policy area are outlined in respect of P1, P2 and P3 areas, in respect of which acceptability of land uses are to be based on the objective of risk minimisation.
Although cl 5.20.2 of TPS 2 prescribes Industry Extractive as a discretionary permissible use within the Rural Groundwater Protection Zone, cl 5.20.3 expressly requires the respondent as the decision-maker when exercising its discretion in respect of such a use to have regard to the provisions of State Planning Policy 2.3 and to only permit such uses where it is satisfied that the use does not involve:
(a)excessive nutrient application or clearing of land; or
(b)risk of damage to any on site vegetation; or
(c)risk of contamination to the Jandakot Groundwater Protection area.
It is immaterial that State Planning Policy 2.3 does not specify any prohibited uses such as Industry Extractive in P2 areas. What it does specify is policy measures for the maintenance or increase of natural vegetation cover, including the protection, retention and enhancement of native vegetation. This is because the terms of the policy expressly recognise that if native vegetation is protected then that provides benefits which include maintaining groundwater quality.
State Planning Policy 2.3 does not descend into any detail about what land uses would be compatible with these objectives and policy measures. Clause 7 of Appendix 1 of State Planning Policy 2.3 expressly contemplates that it is a policy framework provided to guide the Metropolitan Region Scheme and local planning scheme amendments to ensure the ongoing protection of the groundwater resource through land use planning. Consequently, whether a specific land use or land uses are to be allowed in the Jandakot Groundwater Protection area is a matter to be prescribed by local planning schemes. Clause 5.20 of TPS 2 is such a provision.
As the Tribunal properly found the reference to on site vegetation in cl 5.20.3 when construed with the relevant provisions of State Planning Policy 2.3 must only refer to native vegetation. The Tribunal also properly found if the respondent is prohibited from approving a land use that involves risk of damage to any on site native vegetation, it necessarily follows that the prohibition extends to clearing of any native vegetation because it could not be found that clearing of native vegetation would not constitute a risk of damage to any native vegetation. Clause 5.20.3 does not have imported in it any concept of risk mitigation to native vegetation. The plain meaning of the words create a prohibition on the discretion to allow any of the uses prescribed in cl 5.20.2 where that proposed use constitutes a risk of damage to any on site native vegetation.
When regard is had to the provisions of State Planning Policy 2.3, this construction is the only proper construction open of cl 5.20.3 of TPS 2. It cannot be found that the word 'excessive' qualifies the restriction on 'clearing' in cl 5.20.3 of TPS 2.
To do so would be to ignore the context of the restriction on approval of land uses in the Rural Groundwater Protection Zone, which purpose is to be found in the relevant provisions of State Planning Policy 2.3, in respect of which one purpose is to protect, retain and enhance native vegetation.
To construe cl 5.20.3 of TPS 2 to allow the approval of a land use that involves clearing of native vegetation, where that clearing is not excessive, would be directly contrary to the purpose and object of the text of the provision and contrary to the relevant express provisions of State Planning Policy 2.3 and as such to be not in accordance with the policy.
It is not the case that this interpretation of cl 5.20.3 of TPS 2 necessarily prohibits the approval of any land use of Industry Extractive because such a use could be allowed on land within the Rural Groundwater Protection Zone that had no native vegetation, providing that what was proposed did not involve excessive nutrient application or risk of contamination to the Jandakot Groundwater Protection area.
For these reasons, ground 1 has not been made out and leave to appeal on this ground should be refused. Consequently, it is not necessary to consider ground 2 as it cannot arise. For this reason, leave on this ground also should be refused, and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith
7 OCTOBER 2021
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