36 Chester Avenue Pty Ltd and City Of Stirling - [2012] WASAT 198

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: 36 CHESTER AVENUE PTY LTD and CITY OF STIRLING [2012] WASAT 198

MEMBER: MR P McNAB (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 JANUARY 2012

PUBLISHED : 28 SEPTEMBER 2012

FILE NO/S: DR 294 of 2011

BETWEEN: 36 CHESTER AVENUE PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning Development application Preliminary issue Whether discretionary power to grant approval Development application for three storey development comprising 82 apartments Interpretation of town planning schemes Principles of statutory interpretation Endnote or footnote in zoning table indicating 'multiple dwelling' use not permitted on ground floor in District Centre zone Whether a footnote in a zoning table can prohibit development Endnotes, footnotes and superscripts Schedules and tables in instrument 'Main street' concept Whether endnote or footnote part of controlling text Whether superscript, endnote or footnote in a zoning table can have effect of prohibiting development in zone Prohibition not otherwise lacking planning logic Intent of drafter clear Tribunal deciding that endnote or footnote part of statutory text Discussion of legislative drafting techniques Tribunal upholding prohibitory effect of footnote Words and phrases: 'footnote'

Legislation:

City of Stirling Local Planning Scheme No 3, cl 1.7.3, cl 4.3.2, cl 5.5.1
Interpretation Act 1984 (WA), s 3, s 5, s 31(2), s 32(2)
Planning and Development Act 2005 (WA)

Result:

Preliminary question answered in the respondent's favour

Summary of Tribunal's decision:

36 Chester Avenue Pty Ltd sought development approval for a three storey development comprising 82 apartments in Chester Avenue, Dianella. The City of Stirling refused the proposal on the basis that the proposed multiple dwellings located on the ground floor of the proposed development could not be approved in a District Centre zone under the City of Stirling Local Planning Scheme No 3. 36 Chester Avenue Pty Ltd sought a review of this decision in the Tribunal.
The parties identified a preliminary issue in the proceeding to be determined on the documents. The preliminary issue was, whether the City of Stirling had discretionary power to approve the proposed development, given that portion of the proposed development, including dwellings on the ground floor, fronted a main street. This issue turned primarily on the interpretation and effect of a footnote or endnote to a use class symbol in the zoning table. Following consideration of the written submissions and relevant documents filed by the parties, the Tribunal gave an oral decision.
The Tribunal examined the relevant principles of statutory interpretation, and, in particular, how they apply to the interpretation of town planning schemes. The Tribunal also had regard to legislative drafting techniques in relation to tables and notes.
The Tribunal considered that zoning tables, used to present information in a convenient format in planning schemes, were relevantly a 'written law' under the Interpretation Act 1984 (WA), and, further, that superscript footnotes or endnotes inserted into such statutory text cannot be disregarded if they were intended to express legislative effect.
The Tribunal determined, in this case, that the footnote in the zoning table was intended to be a part of the text of the instrument and was to be given its full prohibitory effect.
As the interpretation reached by the Tribunal effectively prohibited the proposed development, it was found that under the City of Stirling Local Planning Scheme No 3 there was no residual discretion otherwise available to the City of Stirling to grant an approval.
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Category: B

Representation:

Counsel:

Applicant: Ms LE Rowley
Respondent: Mr A Roberts with Mr DF Nicholson

Solicitors:

Applicant: Norton Rose Australia
Respondent: McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

City Index Ltd v Leslie [1992] QB 98
Erven Warnink BV v Townend & Sons (Hull) Ltd [1982] 3 All ER 312
Franco and City of Nedlands [2012] WASAT 53
Hunt v RM Douglas (Roofing) Ltd [1988] 3 All ER 823
Marshall and City of Rockingham [2006] WASAT 249
O'Donovan and Town of Vincent [2005] WASAT 120
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11
Re Edwards and Secretary, Department of Primary Industries and Energy (1990) 21 ALD 174

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

36 Chester Avenue Pty Ltd sought development approval for a three storey development comprising 82 apartments in Chester Avenue, Dianella. The City of Stirling refused the proposal on the basis that the proposed multiple dwellings located on the ground floor of the proposed development could not be approved in a District Centre zone under the City of Stirling Local Planning Scheme No 3. 36 Chester Avenue Pty Ltd sought a review of this decision in the Tribunal.
The parties identified a preliminary issue in the proceeding to be determined on the documents. The preliminary issue was, whether the City of Stirling had discretionary power to approve the proposed development, given that portion of the proposed development, including dwellings on the ground floor, fronted a main street. This issue turned primarily on the interpretation and effect of a footnote or endnote to a use class symbol in the zoning table. Following consideration of the written submissions and relevant documents filed by the parties, the Tribunal gave an oral decision.
The Tribunal examined the relevant principles of statutory interpretation, and, in particular, how they apply to the interpretation of town planning schemes. The Tribunal also had regard to legislative drafting techniques in relation to tables and notes.
The Tribunal considered that zoning tables, used to present information in a convenient format in planning schemes, were relevantly a 'written law' under the Interpretation Act 1984 (WA), and, further, that superscript footnotes or endnotes inserted into such statutory text cannot be disregarded if they were intended to express legislative effect.
The Tribunal determined, in this case, that the footnote in the zoning table was intended to be a part of the text of the instrument and was to be given its full prohibitory effect.
As the interpretation reached by the Tribunal effectively prohibited the proposed development, it was found that under the City of Stirling Local Planning Scheme No 3 there was no residual discretion otherwise available to the City of Stirling to grant an approval.
The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.

Introduction

The parties in this proceeding, 36 Chester Avenue Pty Ltd (Chester or applicant) and the City of Stirling (City, Council or respondent), raised a preliminary question on the interpretation of the City of Stirling Local Planning Scheme No 3 (LPS 3). In particular, the issue was whether a footnote or endnote to the zoning table in LPS 3 controlled the outcome of Chester's planning application and, in effect, defeated its proposal.
For the reasons that follow, the Tribunal considered that the answer to these questions must be resolved negatively, that is, in the respondent's favour.
The parties agreed on a formal statement of the preliminary issue in the following terms:
Whether the City of Stirling has discretionary power under [LPS 3] to grant approval of the development application dated 28 April 2011 submitted by the Applicant to the Respondent to construct 82 multiple dwellings at 36 Chester Avenue, Dianella, given [that] portion of the proposed development consists of dwellings on a ground floor fronting a street.

Agreed facts

The parties also agreed on a set of facts relevant to the preliminary question in the following terms:
1.The land which is the subject matter of this Application is located at Lot 101 (No 36) and Lot 76 (No 40) Chester Avenue, Dianella and Lot 77 (No 61) Waverley Street, Dianella, which lot[s] are situated between Chester Avenue and Waverley Street (the Land).
2.The Land measures 8655 square metres and is zoned District Centre (with a density coding of R80) under the City of Stirling's Local Planning Scheme No 3 (LPS 3).
3.By an application for planning approval dated 5 May 2011 (the Application) the Applicant sought approval for a development described in the Application as a '3 Storey development comprising 82 Apartments' (the Development).
4.The Development is classified as a 'Multiple Dwelling' use under LPS 3.
5.The Application was considered at the ordinary meeting of Council of the Respondent on 30 August 2011 and was refused by unanimous decision for the following reasons:
a.The proposed multiple dwellings on the ground floor cannot be approved in a District Centre Zone.
b.The proposed Visitor Car parking does not comply with clause 7.3.3 Onsite Parking Provision (subclause P3.1) of the RCodes as there is insufficient onstreet and other offsite parking available in the immediate neighbourhood to service the proposed Development.
6.The Preliminary Issue for determination by the Tribunal has been identified and agreed by consent.
The Tribunal also considers it relevant to add to those agreed facts some other matters by way of background.
The Tribunal notes that the applicant's architects, SS Chang Architects, in a letter to the City dated 2 May 2011, observed that the site adjoined a shopping centre and public library facility. The site was also described as being in close proximity to a school. The application for planning approval describes the existing building/land use as 'Existing Retail and Commercial Use'. The Existing Site Analysis Plan shows the site to be immediately adjacent to the northwest section of the Centro Dianella Shopping Centre.

Planning framework

The preliminary issue relates to the proper interpretation of Table 1 of LPS 3. That table provides that the use classification 'Multiple Dwelling' (which the parties agree applies to the proposed development) for the District Centre zone is controlled in the zoning table by a figure 'D' which has a superscript '2'.
Clause 4.3.2 of LPS 3, which sets out and explains the meaning to be assigned to such symbols in the table, indicates that, so far as the 'D' element is concerned, use and development of the subject land for a 'Multiple Dwelling' use is not permitted unless the Council has exercised its discretion by granting planning approval. However, the superscript '2' to the 'D' element takes the reader to some notes at the end of the table. Located beneath the zoning table is a set of three explanatory notes which appear to correlate with three separate superscripts '1', '2' and '3'. 'Note: 2' declares: 'Not permitted on the ground floor fronting a street'. Superscript '2' appears a number of times in the table.
The objectives of the relevant District Centre zone under LPS 3 are as follows:
a)to provide for an extended range of shopping, commercial and community services to meet the weekly needs of the catchment neighbourhoods, and contribute towards the employment needs of the local workforce; and
b)to ensure the design and siting of development provides a high standard of safety and amenity and contributes towards a sense of place and community.

Relevant principles of statutory interpretation

The principles of interpretation to be applied in interpreting town planning schemes are discussed and applied in several decisions of the Tribunal: see, for example, Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11 (Optus), at [35] [37]; Marshall and City of Rockingham [2006] WASAT 249 (Marshall), at [30] [36]; and Franco and City of Nedlands [2012] WASAT 53 (Franco), at [17] [23]. These cases do not require repeating. It is sufficient to observe for present purposes that since town planning schemes are imbued with the force of law, and subject to, amongst other things, the Interpretation Act 1984 (WA) (Interpretation Act), prima facie, orthodox principles of statutory interpretation should apply to them: see Marshall at [36]. This is so, notwithstanding the liberality otherwise attached to interpreting such instruments, given that they are often drafted by planners.
In both Optus and Franco, the local authorities were, in a sense, 'caught' by the application of such orthodox principles when the drafting of their respective town planning schemes resulted in possibly 'unintended' consequences. In Optus, it was the insertion of a specific textual amendment relating to certain heritage controls into only one part of a town planning scheme, and in Franco, it was the application of a term (the measurement of height) which the scheme had already expressly defined in a very specific way for use in a specific context.

Application of principles of statutory interpretation to the preliminary question

In the present case, the application of such orthodox principles of statutory interpretation provides, I think, an answer to the preliminary question posed. This is because the drafting technique applied by the drafters of LPS 3 in connection with the zoning table is, contrary to the contentions of the applicant, neither unusual nor uncertain.
LPS 3 is subsidiary legislation with the meaning of s 5 of the Interpretation Act. Thus, the Interpretation Act applies to LPS 3, and LPS 3 is a 'written law' within the meaning of s 3 and s 5 of the Interpretation Act. Consequently, s 31(2) of the Interpretation Act applies to LPS 3 as follows:
… a table and a written law, together with any notes thereto, forms part of the written law.
On the other hand, notes inserted merely for the convenience of the reader do not form part of the text, although, in some cases, they may form part of the intrinsic material available to assist with the task of statutory interpretation: see s 32(2) of the Interpretation Act and DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, 2011), at [4.45]. Consistently with this position, cl 1.7.3 of LPS 3 provides that:
Notes, and instructions printed in italics, are not part of the Scheme.
The injunction that notes intended to have operative effect are part of an Act extends to any form of footnote: see FAR Bennion, Bennion on Statutory Interpretation (5th ed, 2008) (Bennion), at page 750:
If material is put into the form of a footnote it is still fully a part of the Act, and must be construed accordingly.
The learned author cites in support of this proposition the decision of the UK Court of Appeal in Erven Warnink BV v Townend & Sons (Hull) Ltd [1982] 3 All ER 312 (Erven Warnink), at 316. Although Erven Warnink has been overruled by the House of Lords (Hunt v RM Douglas (Roofing) Ltd [1988] 3 All ER 823), the overruling does not affect the interpretive principle applied by the Court of Appeal and cited with approval by Bennion. In Erven Warnink, a superscript 'cross', or 'dagger mark', in a statutory form was central to the outcome of the case. Lord Justice Fox noted, at 316:
This amendment was interpreted as meaning that the new footnote once more altered the law.
Bennion's discussion of the interpretation of schedules attaching to or in legislation is also instructive. At page 722, the learned author notes that:
Whether material is put in a section or a Schedule is usually a mere matter of convenience. Little significance should therefore be attached to it.
The examples that Bennion cites relate to UK statutes where '[o]ccasionally an Act may provide that a Schedule is to be interpreted in accordance with the notes contained in it'. He adds wryly that '[t]his practice is not always known to the judges' (page 722). Thus, reference is made to the concern expressed by Lord Donaldson MR about this practice of drafting in City Index Ltd v Leslie [1992] QB 98, at page 105:
Several of these paragraphs [in the Act before his Lordship] include notes which substantially modify what would otherwise be the effect of the text of the paragraph, which, to me at least, is a novel form of legislation and potentially somewhat confusing at least to a lawyer.
The Tribunal considers that the same comment of Bennion (at page 722) equally applies as regards statutory material appearing in, or as a table in, subsidiary legislative material. It is also to be noted that a 'table' is expressly referred to in the company of a 'schedule' in s 31(2) of the Interpretation Act.
For zoning and land use purposes, the applicable development controls are perhaps best presented for the convenience of the reader in the form of tables, cross-referenced as they usually are between zoning and land use. Hence, the former Parliamentary Counsel of Western Australia, GC Thornton, in his major work Legislative Drafting (3rd ed, 1987) observed, at page 46:
Tables may be useful to convey the intended meaning.
Thornton's work has been cited by judges in both the Western Australia Court of Appeal and the New Zealand Court of Appeal as a statutory interpretation source of reference.
It is true, however, that both Thornton and his Canadian counterpart, EA Driedger, caution against including matters of substance in a schedule, and by analogy, perhaps with more force, in a table. Thornton says, at page 332:
The general practice is for matters of principle to remain in the sections of the statute.
To the same effect is Driedger in his Legislative Forms and Precedents (2nd ed, 1976). He says, at page 168:
Substantive provisions of law, in fairness to parliamentarians and members of the public, should not be concealed or buried in a schedule.
The Tribunal does not suggest here that there has been any attempt at concealment or burying, but Driedger's concern would extend to any matter avoiding the prominence that it might otherwise deserve.
Indeed, this point concerned Ms LE Rowley, who appeared on behalf of Chester, who noted that the Local Planning Manual (Western Australian Planning Commission/Department of Planning, 2010) seemed to be predicated upon similar principles with respect to the drafting of town planning schemes: see, for example, the recommended standards with respect to use class symbols and zones.
On the other hand, Pearce and Geddes, like Bennion, remind us that the overarching approach to a statutory interpretation is as follows, at [1.38]:
… the contents of a schedule may be debated and amended. There is no hard and fast rule about what should or should not be included in a schedule. …
Whether the City's current LPS 3 meets desirable drafting standards, and whether an express direction (absent here) to read a schedule or a table in accordance with any notes may, perhaps, bolster the intention of the drafter in this regard, the authorities recognise that if notes are, indeed, part of the text and, on a true construction, purport to control the meaning of other text, then they must be given their full effect. Thus, Pearce and Geddes sum up this debate by saying, at [4.54]:
… It is possible for a note to be a part of the text of the legislation. In such a case it is to be treated like any other provision: …
Pearce and Geddes rely also on a decision of the Administrative Appeals Tribunal (AAT), which was also cited by Mr A Roberts, who appeared on behalf of the City: Re Edwards and Secretary, Department of Primary Industries and Energy (1990) 21 ALD 174 (Re Edwards).
Re Edwards, in the Tribunal's view, is illustrative of the principles that have been discussed above. Moreover, the circumstances are broadly similar to those under consideration here. In short, in Re Edwards, the AAT concluded that certain superscript footnotes in a statutory instrument were part of the statutory text, and not notes to be disregarded under the Commonwealth equivalent to s 32(2) of the Interpretation Act, as mentioned above. It followed that the superscript notes' plain intendment was to be given effect.

Such is the result here. Chester's proposal falls foul of the superscript note '2' which, in the Tribunal's view, was intended very clearly to prohibit certain land use otherwise permitted in the zone.
The case put by Ms Rowley included reference to the wisdom of such an outcome, arguing, in effect, from consequences that the note could not have been intended to have the effect that such a literal reading of it suggested. However, the wisdom of such an outcome is solely a matter for the legislator or the enactor; here, that is the City.
That is not to say, in any case, that such a prohibition lacks planning logic. As is well-known in planning circles in Western Australia and elsewhere, district centres, or town centres as they are sometimes known, often require mixed forms of land use; for example, commercial, retail or café-type activity on the ground floor of buildings which are otherwise residential, emulating a 'main street' concept: see, for example, Liveable Neighbourhoods (Western Australian Planning Commission, 2007), particularly at Element 7, page 14, requirement R10:
New town or district centres should be structured in a predominantly main street mixed-use layout …
In addition, and to similar effect, Mr Roberts pointed to the consistency of the prohibition with relevant parts of the City's Policy Manual corresponding to LPS 3.
Whether this was what was precisely contemplated here is, however, irrelevant. It is sufficient to observe that the prohibition expressed by note '2' is within the range of established planning outcomes, indicating deliberation on the part of the drafter in effectively prohibiting certain types of development; in this instance, multiple dwellings on the ground floor fronting a street.

As is apparent from the table, the note is given work to do in a not insignificant number of other cases. Chester points to possible difficulties in the application of the note to some of these other cases. For example, Ms Rowley drew attention to the difficulties of application of the prohibition to a 'single house' in the District Centre zone. Moreover, there is reference in the table to a potential note related to superscript '4' which does not, in fact, have a corresponding explanatory note.
However these matters may be (and the Tribunal does not express an opinion on them), the prohibition that we are here concerned with, relating to superscript '2', has, for the reasons given above, a basis in planning logic, and it is sufficient to confine the present issue to enforcing the express, clear limitation on certain multiple dwellings proposed for the District Centre zone.

Whether the development standard can be relaxed or varied

As the interpretation reached by the Tribunal gives, in effect, an 'X', or prohibited, use to the proposed development (an underlying point of complaint made by Chester), it follows that cl 5.5.1 of LPS 3, which may allow the City to vary site and development standards, cannot have application here, as there is no standard or requirement capable of relaxation or variation: see O'Donovan and Town of Vincent [2005] WASAT 120, at [39].

Conclusion and final orders

For the reasons given above, the preliminary question must be therefore determined in the respondent's favour. Accordingly, the Tribunal makes the following order:
1.The preliminary issue is answered in the negative.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER