Australian Unity Property Ltd as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton
[2017] WASC 236
•18 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AUSTRALIAN UNITY PROPERTY LTD As Responsible Entity for the Australian Unity Diversified Property Fund -v- CITY OF BUSSELTON [2017] WASC 236
CORAM: LE MIERE J
HEARD: 16 FEBRUARY 2017
DELIVERED : 18 AUGUST 2017
FILE NO/S: CIV 2298 of 2016
BETWEEN: AUSTRALIAN UNITY PROPERTY LTD As Responsible Entity for the Australian Unity Diversified Property Fund
First Applicant
THE TRUST COMPANY (AUSTRALIA) LTD
Second ApplicantAND
CITY OF BUSSELTON
First RespondentREALVIEW HOLDINGS PTY LTD
Second Respondent
Catchwords:
Judicial review - Whether first respondent had or exceeded jurisdiction to determine development applications - Construction to be given to legislation, delegated legislation and extrinsic materials - Turns on own facts
Town planning - Development approval for site works, discount department store and supermarket - Whether three development applications comprised applications for a single development - Mandatory Development Assessment Panel threshold
Town planning - Development approval for discount department store - Whether land use inconsistent with scheme - Turns on own facts
Legislation:
Interpretation Act 1984 (WA), s 5, s 18
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 10(1)(a), reg 10(1)(b), reg 10(5), reg 11A, reg 11(1) - (2),
reg 12(2) - (3)
Planning and Development Act 2005 (WA), s 4(1), pt 11A, s 171A(1), s 171A(2)(a), s 171C
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Applicant : Mr M D Cuerden SC & Ms M M J Tannock
Second Applicant : Mr M D Cuerden SC & Ms M M J Tannock
First Respondent : Mr L A Tsaknis
Second Respondent : Mr C G Colvin SC
Solicitors:
First Applicant : Squire Patton Boggs
Second Applicant : Squire Patton Boggs
First Respondent : Mr M C Phillips
Second Respondent : Hotchkin Hanly Lawyers
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Fortress Credit Corporation Australia II Pty Ltd v Fletcher (2015) 254 CLR 489
Gill v Donald Humberston & Co Ltd [1963] 1 WLR 929
Tabcorp Holdings v Victoria (2016) (2016) ALJR 376
Taylor v Centennial Newstan Pty Ltd [2009] 76 NSWLR 379
Taylor v Owners ‑ Strata Plan No 11564 (2014) 253 CLR 531
LE MIERE J:
Summary
The applicants have applied for judicial review of the decision by the first respondent, the City of Busselton, to approve applications by the second respondent, Realview Holdings, for developments on land within the City of Busselton. The developments are for site works and the development of a Kmart discount department store and an Aldi supermarket.
The applicants manage and are the registered owner of land on which the Busselton Central Shopping Centre is located. The Busselton Central Shopping Centre comprises an IGA supermarket, specialty shops and car parking. The applicants say that the Kmart and Aldi developments will adversely impact upon them. The respondents concede the applicants have standing to challenge the development approvals.
For the reasons which follow none of the grounds of the application are made out and the application must be dismissed.
The development approvals
On 29 January, 10 February and 13 April 2016 respectively, pursuant to powers granted by the City of Busselton Local Planning Scheme No 21 (LPS21) the City of Busselton approved three development applications on land located at lot 17 West Street, Busselton (the Site) made by Realview Holdings.
The first application (the Site Works Application) was to carry out site works necessary to subdivide the Site and to construct facilities including car parking and vehicle access ways. The second application (the Kmart Application) was for the development of a discount department store (DDS). The third application (the Aldi Application) was for the development of a supermarket.
Grounds of application
The applicants say that the City had no jurisdiction to determine the Kmart Application because it did not have the statutory power to determine an application which met the mandatory Development Assessment Panel (DAP) threshold, namely an application for development having an estimated cost of $10 million or more (ground 1(b)). The applicants say that the estimated cost of the Kmart development in truth included the estimated cost of the site works necessary for the development which were the subject of the Site Works Application and was more than $10 million. Accordingly, the Kmart Application could not be determined by the City and was required to be determined by a DAP as required by s 171A(2)(a) of the Planning and Development Act 2005 (WA) (PDA) and reg 5 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (the Regulations). Further or alternatively the applicants say that the City had no jurisdiction to approve any or all of the development applications because in substance the Site Works Application, the Kmart Application and the Aldi Application comprised applications for a single development with an estimated cost of $13.5 million plus GST and therefore met the mandatory DAP threshold, could not be determined by the City and were required to be determined by a DAP (ground 3).
The applicants say that if the City did have jurisdiction to determine the Kmart Application it exceeded its jurisdiction in approving the Kmart Application for a discount department store on land outside the land designated for that purpose in LPS21 and which was not permitted by LPS21 to be used for that purpose (ground 1(a)). The applicant also says that the City exceeded its jurisdiction in approving the Aldi Application for the development of a supermarket which was not a permitted use on the Site under LPS21 (ground 2).
Grounds 1(b) and 3 - applications requiring approval by Development Assessment Panel
Part 11A of the PDA provides for the establishment and functions of Development Assessment Panels (DAPs). Section 171C provides that the Minister may establish a Local Development Assessment Panel (LDAP) for a district. Section 171A(2)(a) provides that the Governor may make regulations providing that a development application of a prescribed class or kind:
(i)must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and
(ii)cannot be determined by a local government …
Regulation 5 of the Regulations at the relevant time provided that, except for excluded developments, a development application is of the class prescribed under s 171A(2)(a) of the PDA if it is for the approval of development in the district outside of the district of the City of Perth that has an estimated cost of $10 million or more.
The applicants say that the developments the subject of the Site Works, Kmart and Aldi Applications are in substance a single development which has been spread across three applications and are a single development application for the purposes of reg 5 and s 171A(2)(a) of the PDA.
The estimated cost of the works the subject of the Site Works, Kmart and Aldi applications are stated in the applications to be $2.5 million plus GST, $9 million plus GST and $2 million plus GST respectively. The revised estimated costs of the Site Works Application, the Kmart Application and the Aldi Application as deposed to by Mr Erceg are $2,691,500 plus GST, $8,000,000 plus GST and $3,268,750 plus GST respectively.
None of the Site Works, Kmart or Aldi applications are excluded developments. The applicants say that the Site Works and Kmart applications, or alternatively the three applications, had an estimated cost of more than $10 million and therefore the City had no jurisdiction to determine them.
Applicants' case on grounds 1(b) and 3
The applicants say that there are two possible constructions of reg 5. The first is that a development application will be prescribed only if the estimated cost of the works actually described in, and the subject of, the particular development application is $10 million or more. The second, and the applicants say preferable construction, is that a development application will be prescribed if the estimated cost of the 'development' is $10 million or more, whether approval for the entire works comprising that development is sought in one or more development applications.
The applicants' construction argument is as follows. Interpretation Act 1984 (WA) s 18 requires that a purposive construction be given to a written law, which includes the Regulations. The evident purpose of reg 5 is to require that developments of a certain magnitude ‑ measured by reference to the estimated cost of development ‑ be determined by a DAP, as a specialist planning body, rather than the relevant local government. It may properly be inferred that this is, amongst other things, to ensure consistency in planning decisions across local governments with respect to developments of sufficient magnitude. This purpose would be undermined if separate components of what is - viewed objectively ‑ a single development with an estimated cost of $10 million or more, were able to be excluded from a particular development application, or if those works were able to be spread across more than one application, each with an estimated cost of less than $10 million, and the application determined by the local government rather than a DAP.
The applicants say that their construction is consistent with the text of reg 5 as follows. Regulation 5 refers to the 'estimated cost' of 'development'. Development is defined in the PDA to include the carrying out of site works preparatory to the erection or construction of any building or structure on the land, including the works the subject of the Site Works Application. It is consistent with the language of reg 5 to include within the 'estimated cost' of development referred to in reg 5 the estimated cost of all works which fall within the definition of 'development' and which in fact, that is objectively, form part of the development the subject of the application, even if some part of those works are made the subject of a separate development application.
The applicants say that the works the subject of the Site Works Application were a necessary part of the development the subject of the Kmart Application. The proposed development the subject of the Kmart Application could not proceed without those works. The fact that some part of those works might also have been necessary for the Aldi development, or even desirable in their own right, is irrelevant because the entirety of those site works were a necessary part of the development the subject of the Kmart Application. The completion of the works the subject of the Site Works Application was a condition to the commencement of any works the subject of the approval of the Kmart Approval. Accordingly, the applicants say, the Kmart Application was prescribed by reg 5 because the estimated cost of the development the subject of that application exceeded $10 million and therefore the City did not have jurisdiction to determine the Kmart Application.
Some basic principles
LPS21 is a local planning scheme made under pt 5 of the PDA. A local planning scheme is a form of subordinate or delegated legislation prepared or adopted by the local government and approved by the Minister. The general principles of statutory interpretation apply to delegated legislation: Collector of Customs v Agfa‑Gevaert Ltd (1996) 186 CLR 389 at 398.
In the 4th edition of Delegated Legislation in Australia Pearce and Argument at pages 462 - 463 comment that subordinate legislation should nevertheless be interpreted having regard to the nature of the instrument. The authors refer to the statement by Lord Reid in Gill v Donald Humberston & Co Ltd [1963] 1 WLR 929 at 934 where, in relation to regulations made under the Factories Act 1937 (UK) relating to the use of scaffolding, his Lordship said that in interpreting regulations of that kind if the language is capable of more than one interpretation the court ought to discard the more natural meaning if it leads to an unreasonable result and adopt the interpretation which leads to a reasonably practicable result. However, adopting a particular meaning in order to avoid an unreasonable result is only permissible where the alternative construction is reasonably open: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The court may have regard to extrinsic material in circumstances of ambiguity or absurdity but that extrinsic material cannot be used to alter the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 (Consolidated Media Holdings), [39]. Where only one meaning is reasonably open on the language of a provision, the court must adopt that meaning. Even if a drafting error is suspected or the literal meaning gives rise to absurdity, that meaning must prevail unless an alternative interpretation is reasonably open on the language in fact used by the legislature: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason & Wilson JJ); Taylor v Owners ‑ Strata Plan No 11564 (2014) 253 CLR 531 [39] (French CJ, Crennan & Bell JJ); CIC Insurance Ltd at 408.
Where more than one meaning is reasonably open, the court may adopt that meaning which best achieves the purpose or object of the statutory provision. The court must always consider context and extrinsic material in the first instance, regardless of whether ambiguity appears on the face of the legislation. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 the plurality said:
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 [47]. (citations omitted)
In Consolidated Media Holdings the High Court stated:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end [39].
Contextual material, including extrinsic materials, can assist in determining the meaning of the statutory text. The court starts with the text, considers the context and the extrinsic materials, then returns to the text.
The court may have regard to the history of legislation in interpreting its provisions, see for example, Tabcorp Holdings v Victoria (2016) (2016) ALJR 376. In Fortress Credit Corporation Australia II Pty Ltd v Fletcher (2015) 254 CLR 489 the High Court had regard to the legislative history of s 588FF(1) of the Corporations Act before considering its text. However, in concluding its discussion of the legislative history of the provision, the court reaffirmed the primacy of textural analysis in interpreting statutes:
The legislative history is a factor which may support a construction of s 588FF(3) which authorised shelf orders, if such a construction is reasonably open from the text [16]. (emphasis added)
The court may not legislate by rewriting a statutory provision to give effect to its view of the intention of the makers of the statutory instrument nor to overcome what in its view is an unintended consequence of the statutory provision. This approach informs the limits of this court exercising powers of statutory construction in cases where it appears that the maker of the legislative instrument may have made an error in drafting a statutory provision. Furthermore, where some variation is sought of the statutory language 'it is an essential precondition to any legitimate exercise of the power of statutory construction that it be "possible to state with certainty" what words would have been adopted by the drafter and approved by [the maker of the instrument] had their attention been drawn to the problem': Taylor v Centennial Newstan Pty Ltd [2009] 76 NSWLR 379 [92] (Basten JA).
Applicants' construction rejected
The correct or preferable interpretation of the regulations does not require that the Site Works Application and the Kmart Application (or the Aldi Application) be considered as one application for the purposes of reg 5.
Section 171A(1) defines 'prescribed development application' to mean 'a development application of a class or kind prescribed for the purposes of s 171A(2)(a). Section 171A(2)(a) refers to 'a development application of a class or kind prescribed for the purpose of this paragraph …'. Regulation 5(b) refers to 'a development application is of a class prescribed under s 171A(2)(a) of the Act if it is for the approval of … development in the district outside of the district of the City of Perth that has an estimated cost of $10 million or more'. 'Development' is defined in s 4(1) of the PDA to mean, relevantly, the development or use of any land including any demolition, erection, construction, alteration of or addition to any building or structure on the land and the carrying out on the land of any excavation or other works. 'Development application' is defined in s 4(1) of the PDA to mean 'an application under a planning scheme, or under an interim development order, for approval of development'.
A 'development application' in its ordinary meaning and in the context of the PDA and the Regulations is a formal application to the responsible authority for approval of a specified development. The Regulations do not provide for separate formal applications to be deemed to be a combined or composite application for the purposes of reg 5. There is no foothold in the text of the regulation to construe it in that manner.
The second respondent says, and I accept, that an applicant for development may determine what is to be the subject matter of the application. An applicant for development approval can bring an application to undertake the work necessary to effect a subdivision and sale of lots and then bring separate applications concerning the development and use of particular lots. A developer can obtain the certainty of being able to undertake the subdivision and then separately bring an application to develop a particular building or use on a particular lot or lots. There is no risk to the integrity of the process posed by the developer choosing the subject matter of the application. If the application is for a type of development that should not be allowed because it will produce a building that cannot be occupied or is in respect of development that should not be allowed unless it is integrated with other work to be undertaken at the same time then the application may be refused. The fact that the Kmart Application and the Aldi Application depend upon the subdivision having occurred and therefore have been approved on that condition does not make them a single development with each other or each with the Site Works Application. The development the subject of the Site Works Application is practicable and commercially feasible without the Kmart and Aldi Applications being subsequently undertaken.
The second respondent says that pt 11A of the PDA authorises the making of regulations identifying a class or type of development application that must be or may be determined by a DAP. It does not authorise the making of regulations as to what may be the subject of a development application nor what constitutes a development application. Those are matters for the planning instrument which the DAP process takes as a given. Therefore, if a development application can be made in a particular way under the planning instrument then it can be made in the same way to a local government or a DAP. Those matters weigh against the construction advocated by the applicants.
The scheme of the PDA and the Regulations, and in particular the reference to a development 'application', the time stipulations applicable to, and the procedures applicable to, a development application do not require a local authority to combine or amalgamate separate development applications for the purposes of a referral to a DAP, rather than considering each development application on its merits. Nor does the PDA or the Regulations extend the time for the giving of approval of a development application by a responsible authority under a town planning scheme by reason of the existence of another development application. More particularly, in relation to LPS21, the deemed refusal provisions in cl 11.9 of LPS21 are unaffected by reason of the existence of another development application.
Furthermore, the City says, and I accept, the scheme of the PDA and the Regulations shows that the development application referred to and considered by a DAP will be a single development application that reaches the statutory $10 million threshold, unaffected by any other development application. An applicant making a DAP 'application' to a responsible authority must when lodging 'the application' give to the local government to which 'the application' for development approval is lodged notice in the prescribed form and pay to the local government the relevant fee for development approval of that development application: reg 10(1)(a) and (b). The local government 'must' within 30 days after the date on which it receives the DAP 'application' remit to the department the fee paid: reg 10(5). On receipt of a DAP 'application' a local government 'must' consider 'the application' and may request further information or documents from the applicant: reg 11A. A local government 'must' within seven days after the day on which it receives a DAP application give the administrative officer of the DAP prescribed information that will determine 'the application': reg 11(1). A local government 'must' within seven days after the date on which it receives further documents or information in relation to an application that has been provided in response to a notice given under reg 11A give to the administrative office of the DAP that will determine 'the application' the further documents or information: reg 11(2). A responsible authority to which a DAP application is made must give the presiding member of the DAP that will determine 'the application' a report on 'the application' within prescribed time limits: reg 12(2) and (3). These provisions show that the regulations address the procedures required to be adopted for the determination of the 'application', unaffected by any other development application.
I do not accept the applicants' submission that the purpose of s 171A(2)(a) and reg 5 would be undermined if applications for separate developments are treated as separate developments notwithstanding that they are, or may be, sequential developments of the same land or related developments of adjoining land. If each application is capable of being presented and considered as a separate development and is the subject of a separate formal application then the local government may consider each application. Of course, the local government must consider each application in accordance with relevant statutory instruments and planning principles.
The Explanatory Memorandum to the Approval and Related Reforms (No 4) (Planning) Act 2010 (WA), which inserted into the PDA the provisions relating to development approval panels, does not disclose any purpose which requires the statutory provisions to be construed in the manner advocated by the applicants. The explanatory memorandum says that the bill includes provisions to 'enable more effective and efficient decision‑making in development applications at local, regional and State levels through the establishment of development assessment panels' (page 1). The second reading speech of the Minister in the Legislative Assembly stated that the objects of the introduction of development assessment panels is one of the fundamental principles of the national Development Assessment Forum's leading practice model for development assessment. Leading practice model 5, single point of assessment, 'promotes a single point of assessment for applications using consistent policy, objectives and rules': Legislative Assembly, Wednesday 18 November 2009 page 9267. The model 'also promotes limiting referrals to agencies with a relevant role for advice only, avoiding the need for separate approval processes'. The Minister stated that 'the use of development assessment panels will help to address issues with dual approvals by making the relevant panel the single decision‑making authority under both local and region planning schemes'. Section 171(a)(2)(a) and reg 5 show that the key function of a DAP is to determine significant applications for development approval. The DAP model streamlines the determination process for particular types of development applications by eliminating the requirement for dual approval under both the local and region schemes. The scheme provides for optional DAP applications as well as mandatory DAP applications. Optional DAP applications are development applications which may be determined by a DAP at the applicant's choice.
The object of the DAP provisions is to streamline the development process, not to constrain the applications for development which a developer may make. It is not contrary to the purpose or objects of the DAP model to permit a developer to apply to a local government for approval of a development on a site and then subsequently apply to the local government for a further development on the site where each development application considered separately is not a mandatory DAP application, that is a development application which must be determined by a DAP.
Furthermore, the court must take into account the consequences of giving a particular meaning to the Regulations and PDA. The second respondent has pointed out that the construction contended for by the applicants would be unworkable. It would require the local government to assess whether all aspects of the 'development application' are included in each application that is lodged. What criteria are to be applied given that the legislation does not say what forms part of a single development and what may be separate developments? If it is to be determined objectively, such a requirement will in effect mean that landowners will be confined as to the development approvals that they can seek by some unguided assessment made by a local authority of what the application should be for. An incorrect assessment would mean that it is determined by a local authority without jurisdiction resulting in invalidity. What is to happen where applications in respect of the same land are lodged weeks or months later? Are they then to be evaluated to see whether they form part of the same development? What if approval has been given of the earlier application in the meantime? There is no requirement for all applications that are being contemplated by an owner at any time to be indicated when making an application.
Grounds 1(b) and 3 are not made out.
Ground 1(a) - use as a discounted department store
Ground 1(a) requires consideration of various provisions of LPS21 including provisions relating to additional uses, the Land Use Concept Plan (LUCP) adopted by Council on 24 June 2015 relating to the additional use provisions relating to the Site, and special provisions relating to the Site. It is convenient to outline relevant provisions of LPS21 and the LUCP before addressing the applicants' specific arguments.
LPS21
LPS21 was gazetted on 15 October 2014. It revoked the Shire of Busselton District Town Planning Scheme No 20 (TPS20). LPS21 pt 4 provides for zones. Clause 4.1.1 provides that the Scheme area is classified into the zones shown in the Scheme map. They include relevantly Residential, Business, and Restricted Business. The Site is zoned Restricted Business.
Clause 4.3.1 provides, in effect, that the Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones by cross‑reference between the list of use classes and list of zones in the table. The table shows that a shop is a use permitted within the Business zone but a use not permitted within the Restricted Business zone. The applicants say that a DDS and a supermarket are each a shop for the purposes of the Zoning Table and hence are uses that are not permitted in the Restricted Business zone. The City and Realview Holdings say, for reasons I will now explain, that a DDS and a supermarket is not a shop for the purposes of the Scheme.
DDS and supermarket are not mentioned in the Zoning Table. Clause 4.4.2 provides that if a person proposes to carry out any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government has a discretion to determine that the use is consistent with the objectives of the particular zone and is therefore permitted or that the use may be consistent with the objectives and policies of the particular zone and follow a specified advertising procedure in considering the application or it may determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted. Clause 4.4.1 provides that where a specific use is mentioned in the Zoning Table it is deemed to be excluded from the general terms used to describe any other use.
Clause 1.7.1 provides that unless the Scheme or the context otherwise requires, words and expressions used in the Scheme have the same meaning as they have in the PDA or if they are not defined in the PDA the meaning in Schedule 1 or in the State Planning Policy No 3.1 Residential Design Codes. Shop is defined in pt 13 sch 1 of LPS21 to mean:
Any building wherein goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.
The effect of the definition is that 'any other premises specifically defined elsewhere in [pt 13]' are carved out from the definition of shop. DDS and supermarket are specifically defined in pt 13. Therefore, the respondents say a DDS and a supermarket do not fall within the definition of shop.
The applicants say that cl 4.4.2 and the Zoning Table should not be interpreted in that way. They say that in the definition of shop the carve out of 'any other premises specifically defined elsewhere in this part' should not be taken to include a DDS or a supermarket. Therefore, the applicants say, cl 4.4.2 does not confer on the local government a discretion to approve a DDS or supermarket in the Restricted Business zone.
Clause 4.7 (Additional Uses) provides that notwithstanding anything contained in the Zoning Table, the land specified in Schedule 2 may be used for the specific use or uses that are listed in addition to any uses permissible in the zone in which land is situated subject to the conditions set out in Schedule 2 with respect to that land. A note explains that an additional use is a land use that is permitted on a specific portion of land in addition to the uses already permissible in that zone that applies to the land. Schedule 2 ‑ Additional Uses includes:
No
Particulars of land
Land use permitted/specified
Conditions
A64
Pt Lot 17 West Street, West Busselton
Discount Department Store
1. The additional use specified shall be deemed to be a 'D' use for the purpose of Part 4 of the Scheme.
2. Development shall be in accordance with a Land Use Concept Plan adopted by Council.
The additional use specified shall comprise a single discount department store with a gross leasable floor area of not less than 5,000 m2 and not more than 8,000 m2.
The scheme map shows that A64 covers part of Lot 17. The portion of the Site identified as A64 does not extend to the southern boundary of the Site. The LUCP shows a footprint for the proposed DDS in which approximately 40% of the footprint extends beyond the southern boundary of that portion of the Site identified as A64. Condition 1 of the LUCP states that the applicable provisions include that at least 50% of the DDS building footprint shall be within the A64 area. The Kmart Application sought approval for development of a DDS substantially in accordance with the DDS footprint as depicted in the LUCP; that is part of the proposed DDS falls outside that portion of the Site identified as A64.
The additional use provisions and A64 provide that a DDS may be developed within the A64 area. However, the development application is for a DDS which extends beyond the southern boundary of the A64 area. The question is whether the City has power to approve a DDS in that part of the Site that is outside A64. The City and Realview Holdings say that cl 4.4.2 of LPS21 confers power on the City to approve a DDS extending beyond the A64 area. In addition, Realview Holdings says that the Special Provisions of LPS21 are an additional, independent, source of power to approve a DDS within SP26 but extending beyond A64.
Applicants say DDS and supermarket are a shop
The applicants say that a DDS and a supermarket are a shop for the purpose of the Zoning Table which is a use that is not permitted by the Scheme within the Restricted Business zone. Therefore, the applicants say whilst the City may approve a DDS within the A64 area it cannot approve a DDS on the part of the Site outside the A64 area and cannot approve a supermarket on any part of the Site.
The applicants' argument that a DDS and a supermarket are a shop for the purposes of the Zoning Table in essence is as follows. The definitions of discounted department store and supermarket were introduced into TPS20 by amendment in 2006. Before the 2006 amendments the Site was zoned Residential. An additional use area A64 was created and was zoned Restricted Business. Power was conferred upon the City to approve a DDS within A64 which is part of the Site. It was at that time that the definition of DDS and supermarket were introduced into the scheme. DDS was defined to exclude a supermarket. The purpose of introducing the definitions was so that a supermarket could not be approved within A64. A comparison of TPS20 with LPS21 reveals that there was a rearrangement of the provisions of the Scheme, but in all relevant respects the two schemes were identical, either in their terms or as to their effect. The only part of the Site which by the 2006 amendments was approved for additional use as a DDS is that part of the land shown on the scheme map as A64. The result for which the respondents contend is inconsistent with the purpose of the amendments. Further, a consequence of the respondents argument is that a DDS and a supermarket are not permitted uses within the Business zone, which is an absurd result.
The 2006 amendments
Under TPS20, before the 2006 amendments, the Site was zoned Residential. A shop was a permitted use within the Business zone but was a prohibited use in the Residential zone. Shop was defined so as to include a DDS and a supermarket.
On 10 May 2006 the Council of the Shire of Busselton pursuant to pt 5 of the PDA adopted for final approval Scheme Amendment No 72 to TPS20. The decision stated that Scheme Amendment No 72 was adopted for the purpose of:
(a)rezoning Lot 16 and pt Lot 17 from Residential to Restricted Business and Recreation;
(b)realigning the boundary of the Wetland area on Lot 16 and part Lot 17;
(c)including Lot 16 and part Lot 17 in the Special Provision Area as depicted on the Scheme Amendment Map;
(d)inserting specified details into Schedule 7 ‑ Special Provision Areas of the Scheme (the special provisions included that development shall be in accordance with a Land Use Concept Plan (LUCP) adopted by council);
(e)introducing Additional Use Provisions to portion of part Lot 17 for a DDS;
(f)inserting specified details into Schedule 4 ‑ Additional Uses of the Scheme (the details included that the additional use specified shall be deemed to be an AA (ie discretionary) use, development shall be in accordance with LUCP adopted by council and the DDS shall comprise a gross leasable floor area of not less than 5,000 square metres);
(g)definitions of DDS and supermarket be inserted into Schedule 1 (interpretation) of the Scheme.
In adopting Amendment 72, the Council accepted the officer recommendation. The precis to the officer recommendation stated that Council initiated Amendment 72 in order to provide for future commercial development of Lot 16 and part Lot 17 in response to the shortage of Restricted Business zoned land in the locality and the difficulty of developers in securing a suitable site for a DDS in the town centre (Business zone). The proposal as adopted by Council sought to rezone the land from Residential to Restricted Business and to introduce additional use provisions for a DDS. Actual development of the land for Restricted Business and the additional use would be subject to subsequent development applications. The officer recommendation stated that in view of the significance of the drainage and wetland matters it was considered appropriate to include the land in the Special Provision area to ensure adequate management in the long term. The additional use provisions were inserted into Schedule 4 and the special provisions were inserted into Schedule 7 of TPS20 which correspond to schedules 2 and 3 of LPS21, respectively.
Prior to Amendment 72, neither DDS or supermarket were defined in TPS20. A DDS and a supermarket fell within the definition of shop. The applicants say that the consequence of the respondents' construction is that the effect of Amendment 72 was that a DDS and supermarket were no longer a shop and therefore no longer a permitted use in the Business zone. The applicants say that it is an unintended outcome and should be seen to be a drafting error.
The applicants say that a comparison of TPS20 with LPS21 reveals that there was a rearrangement of the provisions of the scheme but in all relevant respects the two schemes were identical either in their terms or as to their effect and the City and the Minister should be taken to have intended the relevant provisions of LPS21 to have the same meaning as the corresponding provisions of TPS20.
Realview Holdings says that the central provision in issue between the parties, cl 4.4.2 of LPS21, is not in substance identical to cl 22 of TPS20. It is necessary to set out the two provisions. Clause 22 of TPS20 is:
If the use of the land for a particular purpose is not specifically mentioned in Table 2 Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the use categories, the Council may ‑
(a)determine that the use is consistent with the objectives and purposes of the particular zone and can therefore be carried out without Planning Consent; or
(b)determine that the proposed use may be consistent with the objectives and purpose of the zone and therefore may only be carried out after public advertising pursuant to Clause 12; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore prohibited.
Clause 4.4.2 of LPS21 is:
If a person proposed to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may ‑
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted; or
(b)determine that the use may be consistent with the objectives and policies of the particular zone and thereafter follow the advertising procedures of clause 10.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
Realview Holdings says that under the old provision, the key question was whether the use could not reasonably be determined as 'falling within the interpretation of one of the use categories'. Those words have been changed to 'falling within the type, class or genus of activity of any other use category'. Those are different concepts and it is reasonable to posit that the change would not have been made without considering the manner in which the categories were expressed. If the legal meaning contended for by the applicants was intended then, Realview Holdings says, you would expect it to have been expressly introduced as part of the process of redrafting LPS21. Realview Holdings says that LPS21 should not be read as if the language used was intended to be construed with knowledge of matters stated in a Council meeting in 2006.
DDS and supermarket are not a shop
The construction of cl 4.4.2 to the effect that the City may not determine a DDS or supermarket to be a permitted use, or a use which requires the specified advertising procedures to be followed, in the Restricted Business zone cannot be accepted for three reasons. First, such a construction is not reasonably open from the text of cl 4.4.2, the Zoning Table and the definition of shop in pt 13. The legal meaning advanced by the respondents is the only meaning reasonably open on the language of cl 4.4.2, the relevant definitions and the relevant entry in the Zoning Table. The meaning that a shop includes a DDS and a supermarket can only be achieved by rewriting cl 4.4.2, the relevant definitions or the relevant entries in the Zoning Table or some combination of those provisions.
Secondly, the construction advanced by the respondents is not absurd or unreasonable. A DDS and a supermarket are 'discretionary' uses in both the Business and Restricted Business zones. That is, in each case the City may determine that a DDS or supermarket development is consistent with the objectives of the particular zone and is therefore permitted or determine that the use may be consistent with the objectives and policies of the zone and thereafter follow the advertising procedures of cl 10.4 in considering an application for planning approval or determine that the use is not consistent with the objectives of the zone and is therefore not permitted. The City might consider it is consistent with proper planning principles that the planning authority be given the flexibility to determine development applications for a DDS or supermarket under cl 4.4.2 rather than being uses which are permitted by the zoning table provisions of the scheme without further consideration by the City.
Thirdly, the applicants have not stated how the City and the Minister would have changed the text of cl 4.4.2, the Zoning Table and the definitions in pt 13 so as to give effect to the intention which the applicants attribute to the City and the Minister. Even if the court considers that the natural and ordinary meaning of the relevant statutory provisions produces a result that is unintended or the result of a drafting mistake or oversight, the court may only overcome the error or oversight if it is possible to state with certainty what words would have been adopted by the City and approved by the Minister had their attention been drawn to the problem. This principle constitutes an insurmountable hurdle for the applicants. Even if it could be concluded that the City and the Minister could not have intended that the words 'but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part' in the definition of shop bear their literal meaning, it is not possible to state with certainty what alternative meaning the City and the Minister intended the definition of shop to have. Is the 'carve out' to include none of the other premises specifically defined elsewhere in pt 13, or is it intended to include some but not all other premises specifically defined in pt 13 and if so which?
The applicants further argue that cl 4.4.2 does not authorise the City to approve a DDS on the Site outside the A64 area because the additional use A64 provisions make specific provision concerning the subject of use of the Site for a DDS and expressly limit such use to that portion of the Site identified as A64. Therefore, the applicants say even if there is otherwise a general power under cl 4.4.2 to approve development and use of a DDS on the Site that general power is excluded by the terms of the specific power conferred by additional use A64.
I do not accept that argument. The applicants submission is in effect that the additional use provisions in LPS21 dealing specifically with the development of a DDS on Lot 17 conflict with cl 4.4.2 in so far as that provision deals generally with the development of a DDS on land in the Restricted Business zone. The applicants rely upon the principle that provisions of general application give way to specific provisions when in conflict. However, that principle only applies where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation. The special will not limit the general where the special provision is adding additional powers to those already in the legislation: Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130 [78] (Downes & Jagott JJ). In LPS21 the provisions dealing with a specific issue (in this case that the part of Lot 17 which is within the A64 area may be used for a discount department store on the specified conditions) should not be used to read down the natural and ordinary meaning of cl 4.4.2 that the Council has a discretion to determine that the use of land for a DDS is consistent with the objectives of the particular zone and is therefore permitted or to determine that the use may be consistent with the objectives and policies of a particular zone and thereafter follow the specified advertising procedures in considering an application for planning approval. This specific additional use provision should be construed as an additional use provision not one which limits the general power conferred by cl 4.4.2. The existence of the power to approve a DDS on the area of A64 does not exclude the power to approve a DDS beyond the A64 area.
For those reasons grounds 1(a) and 2 are not made out.
Special Provision 26
The second respondent, Realview Holdings, says that LPS21 cl 6.3.1 and Special Provision 26 is an additional and independent source of power for the City to approve a DDS on the Site. It is strictly unnecessary to decide that matter. I will briefly set out my finding in relation to that matter.
Clause 6.3.1 of LPS21 provides:
Notwithstanding any other provisions of the Scheme, use and development of land identified on the Scheme map within a Special Provision area and specified in Schedule 3, shall be subject to those provisions listed within Schedule 3 specific to the land in addition to any provisions which are generally more applicable to such land use under the Scheme.
The provisions listed within Schedule 3 include the following:
SP26
Pt Lot 17 and Lot 16 West Street, West Busselton
Restricted Business
1. Development shall be in accordance with a Land Use Concept Plan adopted by Council
…
The LUCP adopted by the City council in 2015 covers Lot 16 and part Lot 17. The LUCP states that its purpose is to provide an appropriate layout for the future subdivision and development of Lot 17 and implement the conditions of the Special Provision Area 26 and Additional Use 64 conditions of LPS21. The plan consists of a drawing and text. The drawing shows a DDS extending beyond the southern boundary of the A64 area. The text states provisions which apply to the subdivision and development of land within the LUCP including that at least 50% of the DDS building footprint shall be within the A64 area'.
Realview Holdings says that SP26 provides that development shall be in accordance with a LUCP, the LUCP permits the construction of a DDS on the Site outside of the A64 area and cl 6.3.1 of LPS21 provides that use and development of the land shall be subject to the special provisions in SP26 notwithstanding any other provisions of the Scheme. Therefore, cl 6.3.1, SP26 and the LUCP permit the development of a DDS on the Site outside the A64 area.
The applicants say that is wrong for two reasons. First, on the proper construction of the Scheme the City had no power to validly approve a land use concept plan that permitted construction of a DDS outside A64 because that is inconsistent with the Scheme which conferred the power to approve a land use concept plan. Secondly, cl 6.3.1 by virtue of special provision 26 imposed additional conditions, that is in addition to all other provisions relating to the land not instead of the restriction on a DDS being required to be within A64. The applicants say that a land use concept plan cannot effectively amend the Scheme.
I do not accept those arguments. Clause 6.3.1 is not a power to amend the scheme. It is a power conferred by the scheme to enact and adopt provisions which, by operation of the scheme, have the effect of taking precedence over other provisions. That is the effect of the opening words of cl 6.3.1 'notwithstanding any other provisions of the Scheme'. The additional use provisions permit approval of a DDS on the area of A64. They do not of themselves prevent approval of a DDS on that part of the Site outside A64.
Conclusion
The application will be dismissed.
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