Adbooth Pty Ltd and City Of Perth - [2006] WASAT 343

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ADBOOTH PTY LTD and CITY OF PERTH [2006] WASAT 343

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 20 NOVEMBER 2006

DELIVERED : 24 NOVEMBER 2006

FILE NO/S: DR 295 of 2006

BETWEEN: ADBOOTH PTY LTD
Applicant
AND
CITY OF PERTH
Respondent

Catchwords:

Town planning - Development application - Third party advertising signage on Telstra telephone booths and cabinets - Preliminary issues - Owner's consent - Authority to give owner's consent to lodgement of DA - Booths and cabinets in road reserves vested in Crown and under care, control and management of local government - Jurisdiction - Whether Telstra is owner of the land to which the DA relates by virtue of its ownership of the telephone booths and cabinets - Whether local government is owner of the land to which the DA relates - Whether local government is an agent authorised in writing for the purpose of signing the DA by Land Administration Act 1997 (WA) s 55(2) - SAT's powers on review - Whether SAT has power to give owner's consent if local government is empowered to sign DA form - Whether DA capable of approval without owner's consent - Words and phrases: "land"

Legislation:

City of Perth City Planning Scheme No 2, cl 10, cl 36, cl 36(1), cl 37, cl 37(b), cl 39, cl 39(a), Sch 4, Sch 7
Environmental Planning and Assessment Act 1979 (NSW), s 77(1)
Interpretation Act 1984 (WA), s 18
Land Administration Act 1997 (WA), s 7(1), s 7(4), s 18, s 55, s 55(1)(a), s 55(2), s 55(3)(b)
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 19, s 19(1)
Planning and Development Act 2005 (WA), s 4(1), s 162, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29, s 29(1)
Telecommunications (Low-impact Facilties) Determination 1997 (Cth), Pt 5

Telecommunications Act 1997 (Cth), Sch 3, cl 47

Result:

Preliminary issues determined as follows:
1. "No" - Telstra Corporation Limited is not an owner of the land to which the DA relates for the purposes of cl 39(a) of the City of Perth City Planning Scheme No 2 (CPS 2).
2. "No" - The City of Perth is not the owner of the road reserves being part of the land to which the DA relates for the purposes of cl 39(a) of CPS 2 and is not empowered to sign the DA form as owner.
3. "Yes" - The City of Perth is an agent authorised in writing for the purpose of signing the DA form in relation to development proposed on road reserves.
4. "Yes" - SAT has power under s 29(1) of the State Administrative Tribunal Act 2004 (WA) to give owner's consent in relation to the development proposed on the road reserves.
5. Not applicable.

Category: A

Representation:

Counsel:

Applicant: Mr KM Pettit SC with Mr MJ Flint
Respondent: Mr A Roberts

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods

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

Forrest and Town of Cottesloe [2005] WASAT 311
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Springmist Pty Ltd v Shire of Augusta-Margaret River (2005) 41 SR (WA) 207

Case(s) also cited:

Australian Real Estate Investment Ltd v Western Australian Planning Commission; Australian Real Estate Investment Ltd v City of Armadale (2003) 33 SR (WA) 307
O'Donovan and Town of Vincent [2005] WASAT 120
St Ives Development Pty Ltd v City of Mandurah (2003) 31 SR (WA) 313
Startime Enterprises Pty Ltd v City of Stirling & Anor [2003] WATPAT 76
Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724
Trecap Pty Ltd and City of Swan [2006] WASAT 142

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The parties to planning review proceedings raised preliminary issues in relation to authority to give owner's consent to the lodgment of a development application for approval for the installation, updating and replacement of third party advertising signage on public telephone booths and cabinets. The majority of the telephone booths and cabinets are located on road reserves, vested in the Crown, but under the care, control and management of the relevant local government.
The Tribunal determined that the owner of the telephone booths and cabinets is not an owner of the land to which the development application relates and is therefore not authorised to give owner's consent to the lodgment of the development application under the local planning scheme. Although the definition of the term "land" incorporated into the scheme expands the term to include "structures", a number of textual indications in the relevant part of the scheme clearly indicate that the defined meaning of "land" does not apply in relation to the requirement to obtain development approval under the scheme. In this context, land relevantly refers to land in the sense of a topographical entity.
The Tribunal also determined that the local government is not the owner of road reserves within its district. However, by virtue of its care, control and management of road reserves, it is an agent authorised in writing for the purpose of signing the development application by the owner of the road reserves, namely, the Crown.
The Tribunal determined that, exercising the functions and discretions of the local government in the review, it has power to give owner's consent in relation to development proposed on road reserves in order to enable the substantive assessment of the development application to take place. The Tribunal considered that it was appropriate to give owner's consent.

Introduction

Adbooth Pty Ltd (Adbooth) and the City of Perth (City or Council) have each raised preliminary issues for determination in planning review proceedings. The proceedings involve an application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the deemed refusal of a development application under the City of Perth City Planning Scheme No 2 (CPS 2 or Scheme) for approval to a change to third party advertising signage involving the installation of a third party advertising sign on each of 54 public telephone booths or cabinets in 41 locations within the City's local government area and the routine updating or replacement of the signs (DA). Under cl 47 of Sch 3 of the Telecommunications Act 1997 (Cth) (Telecommunications Act), the telephone booths and cabinets are owned by Telstra Corporation Limited (Telstra). Adbooth is contracted by Telstra to manufacture, install and maintain public telephone booths throughout Australia and is the project manager for Telstra in relation to telecommunications infrastructure upgrade within the City's local government area. The upgrade involves the replacement or upgrade of a number of public telephone booths and cabinets including space for fixing advertising signs on the booths and cabinets. The majority of the booths and cabinets are situated upon road reserves within the Scheme area under CPS 2.
Under Sch 3 of the Telecommunications Act and Pt 5 of the Schedule to the Telecommunications (Low‑impact Facilities) Determination 1997 (Cth) (Determination), Telstra has a statutory right to install, replace or upgrade the telephone booths or cabinets and attach advertising to its structures related to the supply of standard telephone services. In consequence, development approval is not required from the City under CPS 2 for the installation, replacement or upgrade of public telephone booths or cabinets or for the installation of advertising related to the supply of standard telephone services. However, development approval is required from the City under CPS 2 for the installation of third party advertising signage which is not related to the supply of standard telephone services by Telstra.
Clause 36(1) of CPS 2 states as follows:
"A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by clause 37, without first having applied for and obtained planning approval."
Clause 10 of the Scheme states that, "unless the contrary intention offers [sic], the works [sic] and expressions used have the meanings set out in Schedule 4". Schedule 4, which begins with the words "In this Scheme, unless the contrary intention appears –", states that the term "development" "has the same meaning as is given to it in the [Town Planning and Development Act 1928 (WA) (TPD Act) – see now PD Act; Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) (PD (CTP) Act) s 19(1)] except that it also includes any advertisement".
Clause 37 of CPS 2 provides that development approval is not required for certain types of development, including "building or other work carried out by the City, a public authority or a Commonwealth agency in connection with the maintenance or improvement of a public street". Clause 37 does not exempt the development proposed in the DA from the requirement to obtain development approval. Clause 39 of the Scheme states as follows:
"An application is to –
(a)be made in the form prescribed in Schedule 7 and is to be signed by the owner of the land or an agent authorised in writing for that purpose by the owner of the land to which the application relates;
(b)be given to the City; and
(c)be accompanied by such plans, documents or information as is required under the Scheme Text or any other Scheme document referred to in subclause (3(2) [sic]."
The term "application" is defined in Sch 4 of the Scheme to mean, unless the contrary intention appears, "an application for planning approval". Consistently with the terminology in s 162 of the PD Act, in these reasons, the Tribunal uses the terms "development application" and "development approval" in place of the terms "planning application" and "planning approval" used in CPS 2.
Adbooth lodged the DA with the City on 29 June 2006. At the time of lodgement, the DA form was not signed in the place designated for the signature of the owner of the land on which it is proposed to install the advertising signs. Prior to lodgement of the DA, the City was requested to sign the DA form as owner of the land on which the advertising signs are proposed to be located. The City refused to sign the form on the basis that it is not the owner of the road reserve on which the booths and cabinets, and the advertising signs, are proposed to be located. The Department for Planning and Infrastructure advised Adbooth's solicitors, by letter dated 5 September 2006, that the relevant management body in relation to road reserves, namely, the City, is required to sign the application. The application form was subsequently signed by an officer of Adbooth pursuant to a written authority from Telstra.
In this context, Adbooth and the City have each raised six preliminary issues. The six preliminary issues can be conveniently reformulated into a single set of five preliminary issues as follows:
1.Is Telstra an owner of the land to which the DA relates for the purposes of cl 39(a) of CPS 2 by virtue of its ownership of the telephone booths and cabinets?
2.Is the City:
(a)the owner of the road reserves being part of the land to which the DA relates for the purposes of cl 39(a) of CPS 2; and
(b)empowered to sign the DA form as owner in relation to the development proposed on the road reserves?
3.Is the City, by virtue of its care, control and management of the road reserves upon which the majority of the telephone booths and cabinets are or are proposed to be located:
(a)an agent authorised in writing for the purpose of signing the DA form by the owner of the road reserves being part of the land to which the DA relates, namely, the Crown, for the purposes of cl 39(a) of CPS 2; and
(b)empowered to sign the DA form in relation to the development proposed on the road reserves?
4.If the answer to 2(b) or 3(b) is "yes", does the Tribunal have power under s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to sign the DA form in relation to the development proposed on the road reserves?
5.If the answer to 1, 2(b) and 3(b) is "no", or if the answer to 1 and, if applicable, 4 is "no", does the Tribunal have jurisdiction to entertain the review?
Ultimately, only preliminary issues 1, 2 and 3 are in contention. The parties agree in relation to the correct answer to preliminary issues 4 and 5, and the Tribunal concurs with the common position in respect of these issues. The Tribunal will address each of the preliminary issues in turn.

Is Telstra an owner of the land to which the DA relates?

Mr KM Pettit SC, who appeared with Mr MJ Flint on behalf of Adbooth, contends that Telstra is an owner of the land to which the DA relates for the purposes of cl 39(a) of CPS 2 by virtue of its ownership of the telephone booths and cabinets. It follows that Telstra could authorise Adbooth to sign the DA form. Mr Pettit makes essentially four submissions in support of this contention.
First, Mr Pettit submits that "common sense says that the owner of a structure should be able to apply for consent". Telstra is the only entity with an interest in making the application. The City and the Crown have no interest in signing the DA form, and even if they were competent to sign, they could not be compelled to do so. Further, even if the City or the Crown relented to sign the DA form, neither would be the proper party to argue the application. If an application for review became necessary, neither are obvious nor proper applicants before the Tribunal. The purpose of cl 39 of the Scheme is to allow applications for development approval to be put forward for substantive planning consideration. Consistently with s 18 of the Interpretation Act 1984 (WA), in the interpretation of cl 39(a) of the Scheme, a construction that would promote this purpose shall be preferred to a construction that would not promote this purpose. The City's contention, namely that only the Crown can give owner's consent under cl 39(a) of the Scheme, would not promote the purpose of the clause.
Second, Mr Pettit relies on the definition of the term "land" in Sch 4 of the Scheme which, unless the contrary intention appears, "has the same meaning given to it in the [TPD] Act". Section 19 of the PD (CTP) Act has the relevant effect that the reference to the TPD Act includes a reference to the corresponding provision of the PD Act, namely, the definition of the term "land" in s 4(1) which includes:
"(a)land, tenements and hereditaments;
(b)any interest in land, tenements and hereditaments; and
(c)houses, buildings, and other works and structures."
Mr Pettit submits that "by the inclusion of 'structures' in the expanded definition of 'land' the legislation has foreseen that the owner of a structure may wish to make an application, regardless of the wishes of the owner (State) or manager (City) of the soil in which it is fixed". Mr Pettit questions why, if the intention of the legislation is that only the "owner of the soil" could sign the DA form, "would the Scheme adopt a definition of land which includes structures and buildings"? Mr Pettit observes that the legislation does not oblige the Scheme to adopt the definition of "land" in the PD Act. It could have used a different definition if the intention is only to allow the owner of the soil to sign the DA form.
Third, Mr Pettit submits that the City cannot deny that each of the telephone booths and cabinets is a "structure", and therefore "land" for the purposes of cl 39(a) of the Scheme, as if this were not the case, development approval for the proposed development would not be required under cl 36 of the Scheme.
Finally, Mr Pettit submits that, as the City is the responsible authority under CPS 2, "prima facie, the City should not be the only person authorised to sign an application to itself, when the affected person is another".
Mr A Roberts, who appeared on behalf of the City, submits that cl 39(a) evidences a contrary intention to the application of the defined meaning of "land". Mr Roberts submits that there are two key contextual indications that "land" in cl 39(a) has a different and narrower meaning than the inclusive definition in the PD Act and that it means "the ground, not a structure".
The first contextual indication is found in cl 36 and the definition of "development". As noted earlier, cl 36 provides that a person shall not begin or continue development "of any land or building" without development approval. The term "building" is defined in Sch 4, unless the contrary intention appears, to include "a structure erected or placed on land". The term "development" is defined in s 4(1) of the PD Act and, therefore, by cl 10 and Sch 4 of the Scheme, to mean, unless the contrary intention appears, "the development or use of any land, including – (a) any demolition, erection, construction, alteration of or addition to any building or structure on the land … ". Mr Roberts submits that "it would be nonsensical for the definition to be construed to read: ' … any building or structure on the [building or structure]'".
Mr Roberts submits that a second textual indication is found in the definition of the term "owner" which, under Sch 4 of the Scheme, unless the contrary intention appears:
"in relation to any land includes the Crown in right of the State and the Commonwealth and every person who jointly or severally, whether at law or in equity –
(a)is entitled to the land for any estate of fee simple in possession; or
(b)is a person to whom the Crown has lawfully contracted to grant the fee simple of the land; or
(c)is entitled to receive or is in receipt of, or if the lands were let to a tenant, would be entitled to receive the rents and profits, whether as a beneficial owner, trustee, mortgagee in possession or otherwise."
The Tribunal considers that there are five textual indications which evidence a contrary intention to the application of the defined, extended meaning of "land" in cl 39(a) of the Scheme and which suggest that the term refers to land in the sense of a topographical entity, whether at ground or as a stratum below or above ground.
First, as Mr Roberts submits, the term "development" and cl 36 of the Scheme strongly suggest that the term "land", when used in relation to the need to obtain development approval under the Scheme, does not have the defined meaning. In particular, the express inclusion in the definition of "development" in s 4(1) of the PD Act of "any demolition, erection, construction, alteration of or addition to any building or structure on the land" (emphasis added) indicates that a "building or structure on the land" is not encompassed within the term "land" when used in relation to the need to obtain development approval under the Scheme. Similarly, the words "or building" in cl 36(1) of the Scheme and the inclusion within the defined meaning of "building" of "a structure erected or placed on land" (emphasis added), indicates that "land" does not relevantly include a structure in this context. The Scheme does not evidence a contrary intention to the application of the definitions of "development" and "building" to these terms when used in cl 36.
Second, the use of the definite article "the" before "land" in cl 39(a) indicates that the land to which the application relates can only be characterised in a single manner and cannot be characterised as both the topographical entity and structures on the topographical entity.
Third, the qualification of the words "the land" by the immediately following words "to which the application relates" in cl 39(a) indicates a contrary intention to the application of the defined meaning of "land" and that "land" relevantly means land in the sense of a topographical entity. In North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, the High Court of Australia considered the meaning of the words "the land to which that development relates" in s 77(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Section 77(1) of the EPA Act provided as follows:
"A development application may be made only by:
(a)the owner of the land to which that development application relates; or
(b)any person, with the consent in writing of the owner of the land to which that development application relates."

The Court held at 476 as follows:
"The context of section 77(1)(b) reveals the meaning of 'relates' in that paragraph. A development application seeks consent to a development that a person would otherwise be prohibited from carrying out by section 76(2). The prohibition contained in section 76(2) is against the carrying out of a 'development on land to which [a provision of an environmental planning instrument] applies'. Such a provision applies to particular parcels of land. A 'development' can be carried out only on a particular parcel. Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application 'relates' must therefore be the land on which the specified development is proposed to be carried out."
Similarly, cl 36(1) of CPS 2 prohibits a person from beginning or continuing development of any land or building in the Scheme area, unless exempted, without first having applied for and obtained development approval. Under both the EPA Act and the Scheme, a "development" can be carried out only on a particular parcel and the prohibition is against the carrying out of a specific development on that parcel. When a development application is made under CPS 2 for consent to a specific development, the land to which the application "relates" is the land on which the specific development is proposed.
Fourth, the prescribed development application form in Sch 7 which is referred to in cl 39(a) also indicates that "land" does not have its defined meaning in the clause and is confined to land as a topographical entity. The form requires the name and address of the "owner of land on which development proposed" and identifies the "land" by reference to Titles Office descriptions of lot number, location number, plan or diagram and certificate of title volume and folio.
Fifth, as Mr Roberts submits, the definition of the term "owner" in relation to land also suggests that "land" is relevantly confined to a topographical entity. Each of paragraphs (a), (b) and (c) of the definition expressly or implicitly refer to land in this sense. However, as it is inclusive, the definition of "owner" would not be sufficient in itself to demonstrate a contrary intention to the application of the definition of "land" in cl 39(a). Nevertheless, it is corroborative of the view to which the Tribunal has come on the basis of the other textual indications.
Mr Pettit's submissions do not require a different interpretation of cl 39(a).
Although the facts of this case are clearly unusual, because Telstra owns a structure on land but not the land on which the structure is erected, the fact that the only person interested in making the DA cannot sign the DA form, because the person is not the owner of the land to which the application relates, is not in itself unusual. The only person with an interest in making a DA in a conventional situation may be a tenant or prospective tenant. However, without the owner's consent in the form of its signature on the DA form, the tenant cannot make a competent application under cl 39(a) of the Scheme. Subject to statutory provisions or contractual arrangements, the tenant cannot compel the landlord to sign the DA form.
The purpose of cl 39 is not to allow applications for development approval to be put up for substantive planning consideration, but rather to preclude development applications from being made without the consent of the owner of the land to which the application relates. Further, the submission that the City or the Crown would not be the proper party to argue the DA or conduct review proceedings confuses the position of an applicant and an owner in relation to the making of a DA under the Scheme. The fact that the landowner would not be the proper party to argue a DA, or to conduct review proceedings in relation to an application lodged by another person, does not mean that the landowner's consent is not required under cl 39(a).
It is correct that the draftsperson could have expressly excluded the application of the definition of "land" to that term when used in relation to the need to obtain development approval under the Scheme. However, as discussed earlier, the definition applies "unless the contrary intention appears". For reasons also discussed, the contrary intention is manifested in a number of respects.
Adbooth's submission that the City cannot deny that each booth or cabinet is a "structure", because it would thereby deny that any development approval is required at all, involves a misunderstanding of cl 36 of the Scheme. Development approval is required under cl 36 of the Scheme, because Telstra and Adbooth propose to use land for the installation, updating and replacement of third party advertising. Development approval would be required for this use whether or not a structure to hold the advertising is already in place and whether or not the structure requires development approval. As the term "development" is defined in Sch 4 to include any advertisement, the installation, updating and replacement of an advertisement involves beginning or continuing development of the topographical entity on which the advertisement is proposed.
Finally, the fact that the City is the responsible authority for assessing and determining development applications under the Scheme does not mean that its consent as landowner is not required for the making of a DA which relates to its land.
The answer to the first preliminary issue identified at [12] above is "no". Telstra is not an owner of the land to which the DA relates for the purposes of cl 39(a) of CPS 2 by virtue of its ownership of the telephone booths and cabinets.

Is the City the owner of the road reserves to which the DA relates?

Section 55 of the Land Administration Act 1997 (WA) (LA Act) states, in part, as follows:
"(1)Subject to this section and to section 57, the absolute property in land comprising a road is by this subsection –
(a)revested in the Crown; …
(2)Subject to the Main Roads Act 1930 and the Public Works Act 1902, the local government within the district of which a road is situated has the care, control and management of the road.
(3)The operation of subsection (1) –
…
(b)does not affect the functions of a local government in respect of a road of which it has the care, control and management."
Further or alternatively to Adbooth's contention that Telstra is an owner of the land to which the DA relates, Mr Pettit submits that the City is the owner of the road reserves being the majority of the land to which the DA relates for the purposes of cl 39(a) of the Scheme and, therefore, is empowered to sign the DA form as owner in relation to the development proposed on the road reserves. Mr Pettit submits that "the City is an owner by virtue of the fact that it alone has most of the powers that attend ownership – care, control and management of the reserve, power to veto a proposal to lease a road (Section 57 of the [LA] Act) and power to initiate a road closure (Section 58 of the [LA] Act) (although the Minister ultimately effects a closure)". Mr Pettit also relies on the terms of s 55(3)(b), which he submits indicate that the revesting of absolute property in the Crown under s 55(1) does not "affect the power of the City to act as owner in substance".
Mr Roberts submits that the term "owner" in cl 39(a) of the Scheme bears its natural and ordinary meaning which is not relevantly expanded by the definition in Sch 4. He submits that the LA Act denies many of the indicia of ownership to the City. He also submits that the reliance by Adbooth on s 55(3)(b) of the LA Act is misplaced, because that paragraph is simply an acknowledgement of the fact that local governments have functions sourced elsewhere in relation to roads which are unaffected by the revesting in the Crown by s 55(1).
The Tribunal considers that the City is not the owner of the road reserves. The word "owner" is a non-technical term and bears its natural and ordinary meaning of "someone who owns; a proprietor": The Macquarie Dictionary (Macquarie, 4th ed, (Sydney) 2005), page 1025. A "proprietor" is "someone who has the exclusive right or title to something; an owner, as of property" (page 1140). It is clear from s 55(1)(a) of the LA Act that the owner or proprietor of the road reserves is the Crown. Administration of the LA Act is committed to the Minister for Lands (Minister) who is an agent of the Crown in right of the State: LA Act s 7(1), s 7(4). Written approval of the Minister is required for a lease or licence, a mortgage or the assignment of a lease of a road: LA Act s 18. Although the Minister may not grant a lease in respect of land comprising a road of which a local government has the care, control and management without the consent of the relevant local government, the Minister may grant a lease in respect of land above or below a road without the local government's consent, and, most significantly, the local government does not have power to grant a lease or licence in relation to a road.
Although the local government within the district of which a road is situated has important functions in relation to care, control and management of the road, it does not have the exclusive right or title to the road. Having "most of the powers that attend ownership" is not equivalent to ownership. The City is also not rendered "owner" by the inclusive, expanded definition of the term in Sch 4 of the Scheme.
Finally, as Mr Roberts submits, s 55(3)(b) of the LA Act simply acknowledges that the revesting of absolute property in land comprising a road in the Crown does not affect functions conferred by other legislation on the relevant local government in relation to the road. For example, as noted earlier, cl 37 of the Scheme provides that planning approval is not required for development comprising building or other work carried out by the City in connection with the maintenance or improvement of a public street. This provision contemplates that the City's functions include the maintenance or improvement of roads within its local government area. Section 55(3)(b) does not, however, have the effect that the City is the proprietor of road reserves in its area.
In Springmist Pty Ltd v Shire of Augusta-Margaret River (2005) 41 SR (WA) 207, the Tribunal determined at [13] that the relevant local government was the owner of a footpath associated with Bussell Highway, because it had the care, management and control of the footpath. Although the Tribunal identified s 55(2) of the LA Act in passing, it does not appear that the parties or the Tribunal gave the same level of consideration to the issue as has occurred in these proceedings. Furthermore, the issue in Springmist Pty Ltd v Shire of AugustaMargaret River was complicated by the wording of a proclamation which established that Main Roads WA no longer had jurisdiction over the footpath and that, for more abundant caution, the applicant obtained a signature on behalf of the Minister on the development application.
In Forrest and Town of Cottesloe [2005] WASAT 311, a local government argued in planning review proceedings that the Tribunal did not have power to determine the application insofar as it proposed earthworks on the street verge. The argument proceeded on the common basis that the local government was the owner of the verge. The Tribunal did not consider s 55 of the LA Act. At [68], the Tribunal followed the reasoning in Springmist Pty Ltd v Shire of Augusta‑Margaret River at [17] – [21] in determining that, unlike the former Town Planning Appeal Tribunal, SAT has power to grant owner's consent under s 29 of the SAT Act on the part of a local government which is the owner of land to which a development application relates in order to enable planning assessment of the application to take place.
The answer to the second preliminary issue identified at [12] above is "no". The City is not the owner of the road reserves being part of the land to which the DA relates for the purpose of cl 39(a) of CPS 2 and is not empowered to sign the DA form as owner in relation to the development proposed on the road reserves.

Is the City an agent authorised in writing for the purpose of signing the DA form?

Mr Pettit submits that the Crown has by written authorisation, in the form of s 55(2) of the LA Act, authorised the City to sign the DA form. Mr Pettit submits that the purpose of s 55(2) is "to divest the Crown of the myriad of day-to-day decisions of the owner affecting the State's roads".
Mr Roberts contends that the City is not an agent authorised in writing for the purpose of signing the DA form for the purposes of cl 39(a) of the Scheme for three reasons.
First, Mr Roberts submits that the forms of writing by which authorisation may be given must be available to all parties and persons encompassed by the definition of "owner". Enacting legislation is not something that can be done by all persons referred to in the definition.
Second, Mr Roberts submits that s 55(2) of the LA Act does not specifically authorise a local government to sign applications for planning approval. An application for planning approval relates to a specific proposed development, and it is that specific application which an owner signs or authorises an agent to sign.
Third, Mr Roberts submits that obtaining the consent of an owner for a particular application serves a number of purposes, including the avoidance of hypothetical applications and to afford that owner an opportunity to object to the proposed development. Mr Roberts relies on the following statement by Murray J in Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71 at 84:
"In general terms, and in this case in particular, it seems to me to be important that an owner should not be deprived of its capacity to object to the subdivision or to express views about the conditions upon which the State Planning Commission should grant approval. The contribution by each owner and the circumstances in relation to the proprietary rights of the person may clearly affect the conditions upon which approval may be granted for related subdivision of adjoining land in different ownership."
The Tribunal considers that s 55(2) of the LA Act confers authority in writing on the local government within the district of which a road is situated for the purpose of giving owner's consent to the making of development applications for the carrying out of development on the land comprising the road. The purpose of s 55(2) is clearly to confer on the relevant local government control and management functions which would otherwise be exercised by the Crown. The noun "control" is relevantly defined in The Macquarie Dictionary at page 319 as "the act or power of controlling; regulation; domination or command". The noun "management" is relevantly defined at page 870 as "the act or manner of managing; handling, direction, or control". The verb "manage" relevantly means "to take charge or care of: to manage an estate" and "to handle, direct, govern or control in action or use". The giving of owner's consent to the lodgement of a development application to enable its substantive planning assessment falls within the managing, handling, direction or control of the land to which the development application relates. The words "for that purpose" in s 39(a) do not require a specific authorisation for each development application. An agent is authorised in writing "for that purpose" if the agent has a general authority from the owner to control and manage the land to which a particular DA relates. Indeed, it would defeat the purpose of allowing an agent to sign development applications in place of a landowner if the landowner were required to authorise each signature. It would involve the same effort for the landowner to sign the actual development application form as to provide a written authority to an agent to do so.
Technically, the written authority in the form of s 55(2) has been given by the Parliament, rather than by the Crown. However, s 4 of the LA Act provides that the Act binds the Crown. Although legislation is an unusual form of authorisation in writing for the purpose of cl 39(a), the section, which binds the Crown, is relevantly an authorisation in writing by the Crown which enables the signing of a development application form by the City.
The purpose of obtaining owner's consent discussed by Murray J in Pacesetter Homes Pty Ltd & Anor v State Planning Commission is not defeated by the interpretation of s 55(2) to which the Tribunal has arrived. The right to object has been conferred on the Crown's agent, namely the relevant local government. Furthermore, subject to unusual statutory circumstances, such as exist in this case, the Crown, as landowner, maintains ultimate control to preclude implementation of a development approval which authorises the carrying out of development on a road. As the owner, the Crown can generally preclude the implementation of an approved development by refusing to grant a lease or licence necessary for the carrying out of the development.
Finally, there does not appear to be any reason why the form of writing by which authorisation may be given must be available to all entities and persons encompassed by the definition of "owner" or why an Act of Parliament cannot relevantly confer authorisation.
The answer to the third preliminary issue identified at [12] above is "yes". By virtue of its care, control and management of the road reserves upon which the majority of the telephone booths and cabinets are located, the City is an agent authorised in writing for the purpose of signing the DA form by the Crown and is empowered to sign the DA form in relation to the development proposed on the road reserves.

Does the Tribunal have power to give owner's consent?

The City did not ultimately contest that the Tribunal has power to grant owner's consent under cl 39(a) of the Scheme to enable the lodgement of a development application in relation to land owned by the City or in respect of which it is authorised in writing to sign the application. As the Tribunal observed in Forrest and Town of Cottesloe [2005] WASAT 311 at [68], the decision in Springmist Pty Ltd v Shire of Augusta-Margaret River at [17] – [21] "has comprehensively addressed this issue". Section 29(1) of the SAT Act states that "the Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision". The section enables the Tribunal to grant owner's consent to the lodgement of a development application where the original decision-maker is empowered to do.
It is appropriate that owner's consent be given by the Tribunal under s 29(1) of the SAT Act in relation to the proposed development on road reserves in order to enable the substantive planning assessment of the development application to take place.

Does the Tribunal have jurisdiction to entertain the review?

In light of the Tribunal's decisions in relation to the other preliminary issues, the last preliminary issue does not strictly arise. However, the parties indicated during the hearing that some of the telephone booths and cabinets on which signage is proposed are not within road reserves. Adbooth must obtain owner's consent under cl 39(a) of the Scheme in order for the Tribunal to be able to consider and determine the DA insofar as it proposes development not within road reserves: Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]; Pacesetter Homes Pty Ltd & Anor v State Planning Commission.

Conclusion

The Tribunal has determined that Telstra is not an owner of the land to which the DA relates for the purposes of cl 39(a) of the Scheme by virtue of its ownership of the telephone booths and cabinets. Although the definition of the term "land" incorporated into the Scheme expands the term to include "structures", a number of textual indications in the Scheme clearly indicate that the defined meaning of "land" does not apply in relation to the requirement to obtain development approval under the Scheme. In this context, land relevantly refers to land in the sense of a topographical entity.

The Tribunal has also determined that the City is not the owner of road reserves within its local government area. However, by virtue of its care, control and management of the road reserves under s 55(2) of the LA Act, the City is an agent authorised in writing for the purpose of signing the DA by the owner of the road reserves, namely, the Crown.
The Tribunal, therefore, has power under s 29(1) of the SAT Act to give owner's consent for the purposes of cl 39(a) of the Scheme in order to enable the DA in relation to development on road reserves to be the subject of substantive assessment in the review. However, Adbooth needs to obtain owner's consent for the purposes of cl 39(a) in relation to part of the land to which the DA relates which is not road reserves. It is appropriate that Adbooth is given a reasonable opportunity to obtain this owner's consent.

Orders

The Tribunal makes the following orders:
1.The preliminary issues identified in the Tribunal's reasons for decision dated 24 November 2006 are answered as follows:
1."No".
2."No".
3."Yes".
4."Yes".
5.Not applicable.
2.Pursuant to s 29(1) of the State Administrative Tribunal Act 2004 (WA) and cl 39(a) of the City of Perth City Planning Scheme No 2, the Executive Officer shall sign the development application the subject of these proceedings in relation to development proposed on road reserves which are within the care, control and management of the respondent under s 55(2) of the Land Administration Act 1997 (WA).

I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER