AZAR and CITY OF COCKBURN
[2025] WASAT 56
•17 JUNE 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AZAR and CITY OF COCKBURN [2025] WASAT 56
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 21 NOVEMBER 2024, FURTHER SUBMISSIONS 21 JANUARY 2025 AND 28 JANUARY 2025
DELIVERED : 17 JUNE 2025
FILE NO/S: DR 91 of 2024
BETWEEN: GEORGE AZAR
Applicant
AND
CITY OF COCKBURN
Respondent
Catchwords:
Town planning - Development application - Preliminary issue - Meaning and effect of local planning scheme clauses - Whether local planning scheme clauses lawful - Content of local planning schemes - The environment as a town planning consideration - State planning policy - Water quality policy in public drinking water area - Ability for local planning scheme to apply requirements of water quality policy - Land use classification
Legislation:
Approvals and Related Reforms (No 4) (Planning) Act 2010 (WA), s 64
City of Cockburn Town Planning Scheme No 3, cl 1.5(d), cl 1.6, cl 1.7.5, cl 3.2.1(m), cl 3.4.1, cl 3.4.2, cl 4.10, cl 4.10.2, cl 4.10.4, cl 4.10.5(a), cl 4.10.5(c), cl 4.10.6, cl 4.10.7, cl 4.10.9, cl 4.10.11, cl 4.10.11(a), cl 4.10.11(a)(i), cl 4.10.11(d), cl 4.10.11(e), cl 4.14, cl 4.15, cl 4.16
Interpretation Act 1984 (WA), s 56(2)
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 29, reg 45, reg 55, reg 60, Sch 1, Sch 2, Pt 5, cl 27, cl 56, cl 67(1), cl67(1)(a), cl 67(1)(b), cl 67(1)(b)(i), cl 67(2)
Planning and Development (Planning Codes) Regulations 2024 (WA)
Planning and Development (State Planning Policies) Regulations 2024 (WA)
Planning and Development Act 2005 (WA), s 3(1)(b), s 3(1)(c), s 14(m), s 27, s 68(1), s 69, s 69(1), s 72, s 73, s 77(1), s 87(4), s 93, s 174, s 174(1)(a), s 241(1)(a), s 244, s 256, s 256(1), s 256(4), s 257A(3), s 257B, s 257B(2), s 257B(3), s 257B(5), Sch 7, Pt 3, Pt 3A, Pt 5, Div 5
Planning and Development Amendment Act 2020 (WA), s 74
Planning and Development Bill 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 29(1)
Town Planning and Development Act 1928 (WA) (repealed), s 3(1)(c), s 5AA, s7(1), s7(3), s 8(1), s69(1), s 72, s 73, Sch 1
Town Planning Regulations 1967 (WA) (repealed)
Result:
Preliminary issue determined
Category: B
Representation:
Counsel:
| Applicant | : | Mr T Houweling |
| Respondent | : | Mr DP Gillett |
Solicitors:
| Applicant | : | Cornerstone Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Al-Boraich and City of Swan [2020] WASAT 163
Australian Unity Property Limited as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
City of Gosnells v Reid [2024] WASCA 155
City of Wanneroo v Scutti [2016] WASAT 102
Costa v Shire of Swan [1983] WAR 22
Marford Nominees Pty Ltd v State Planning Commission (unreported, SCt of WA, (Murray J), Library No 960047, 1 February 1996)
Puma Energy Australia and City of Cockburn [2016] WASAT 36 (2016) 89 SR (WA) 1
R v Secretary of State for Social Security; Ex parte Britnell [1991] 1 WLR 198
Scutti v City of Wanneroo [2017] WASC 70; (2017) 221 LGERA 144
Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417
Squarcini and Milino Pty Ltd v State Planning Commission (unreported SCt of WA, (Scott J), Library No 960200, 17 April 1996)
Zampatti v WAPC [2010] WASCA 149; (2010) 176 LGERA 150
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons deal with a preliminary issue as to whether a proposed 'vehicle storage area' (Proposed Development) is capable of approval in the City of Cockburn Town Planning Scheme No 3 (Scheme or TPS 3).
To resolve that question, I must first determine the meaning and effect of cls 4.10.11(a)(i) and (d) of TPS 3.
Clause 4.10.11(a)(i) provides that the use and development of land within the Resource Zone 'shall be in accordance with the provisions of the relevant State Planning Policy for water', being the Water Quality Protection Note No 25: Land Use Compatibility Tables for Public Drinking Water Source Areas (Water Quality Policy), prepared by the Department of Water and Environmental Regulation (DWER).
Clause 4.10.11(d) states that a land use that is identified as 'incompatible' in the Water Quality Policy shall be regarded as a prohibited use in the Resource Zone.
Mr George Azar (the Applicant) contends that cl 4.10.11(a)(i) is, in effect, a 'Henry VIII clause' and should not apply in accordance with its terms. He submits the Planning and Development Act 2005 (WA) (PD Act) includes no power to make a Henry VIII type clause in a local planning scheme. For this reason, cl 4.10.11(a)(i) cannot be read in a manner that gives legislative effect to the Water Quality Policy. Accordingly, he submits that cl 4.10.11(d) cannot apply according to its purported terms.
The City of Cockburn (Respondent) contends that both cls 4.10.11(a)(i) and (d) are lawful and apply according to their terms. Accordingly, the Respondent considers that the Proposed Development is a prohibited use in TPS 3.
The Applicant, on the other hand, submits that because cls 4.10.11(a)(i) and (d) cannot be read as to have legislative effect, the Proposed Development is capable of approval.
Issue
In order to determine whether the Proposed Development is capable of approval under TPS 3, I must consider:
(a)the meaning and effect of cls 4.10.11(a)(i) and (d); and
(b)the classification of the Proposed Development.
Summary outcome
For the following reasons, I am satisfied that, for the purposes of TPS 3:
(a)both cls 4.10.11(a)(i) and (d) are lawful and, accordingly, are required to be read and applied 'as if enacted by' the PD Act;
(b)applying their ordinary meaning, the effect of cls 4.10.11(a)(i) and (d) is that land use permissibility within the Resource Zone is to be as per that set out in the Water Quality Policy;
(c)by reference to the Water Quality Policy, the Proposed Development is an incompatible use in the Resource Zone, with the result that,
(d)on the facts given, the Proposed Development is a prohibited use on the Land.
Background
The following facts are agreed:
(a)the land in question is 20 Jandakot Road, Jandakot (Land);
(b)the Land is within the Resource Zone of TPS 3 and is identified within a Priority 2 Area (P2) in the Water Quality Policy;
(c)the Applicant lives in a dwelling on the Land;
(d)in April 2024, the Applicant applied for development approval to use a portion of the Land for the purposes of the Proposed Development, which was described as a 'vehicle storage area';
(e)the Proposed Development comprises:
(i)the parking of 17 x 8-tonne rigid trucks during the evening;
(ii)the parking of 17 x standard B99 vehicles during the day; and
(iii)a 2,000m2 hardstand area and vehicle turning bay (constructed on the eastern side of the Land).
On 7 June 2024, the Respondent refused the Proposed Development. In doing so, the Respondent classified the Proposed Development as a 'Transport Depot', which is an 'incompatible' land use in P2 by reason of Table 2 in the Water Quality Policy. Perforce of cl 4.10.11(d) of TPS 3, land use identified as incompatible uses in the Water Quality Policy are 'X' uses in the Resource Zone and, therefore, incapable of approval pursuant to cl 67(1) of the deemed provisions.[1]
[1] The 'deemed provisions' being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) and given effect by s 257B of the PD Act.
It therefore follows that the critical question is whether cls 4.10.11(a)(i) and (d) of TPS 3 are valid scheme provisions, such that they should apply according to the ordinary meaning of their terms. A corollary of that question is whether these provisions fall within the subject matter, scope and purpose of the PD Act. Put another way, are they valid planning scheme provisions and, if so, how should they be construed?
In order to address that question, it is necessary to first address the basis on which local planning schemes are made, their legislative effect, the principles of their construction and what matters a local planning scheme may properly address.
Legislative framework for local planning schemes
In order to consider the lawfulness of cls 4.10.11(a)(i) and (d), I will first, by reference to the PD Act, identify and discuss:
(a)the power to make local planning schemes, and their status;
(b)the prescribed content of local planning schemes;
(c)the matters which a local planning scheme may address;
(d)the environment as a planning consideration; and
(e)the principles that apply to the construction of a planning scheme.
Local planning schemes and their status
TPS 3 commenced on 20 December 2002 and was made pursuant to the then Town Planning and Development Act 1928 (WA) (TPD Act). The power to make the Scheme was contained in s 7(1) of the TPD Act which authorised a local government to prepare a 'town planning scheme', or amendment, with reference to any land in its district or to otherwise adopt, with or without modification, a scheme proposed by all or any landowners.
A town planning scheme was required to be approved by the Minister for Planning (Minister) and published in the Gazette. Once published, TPS 3 had 'full force and effect as if it were enacted by the [TPD Act]'.[2]
[2] TPD Act, s 7(3).
On 9 April 2006, the PD Act commenced and the TPD Act was repealed pursuant to s 4 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA). From 9 April 2006, TPS 3 continued in force as a 'local planning scheme', and, had effect 'as if enacted' by the PD Act.[3]
Prescribed content of local planning schemes
[3] PD Act, s 68(1).
From its commencement, the PD Act included a power to make regulations prescribing a set of provisions for carrying out the general objects of, relevantly, a local planning scheme.[4] In broad terms, s 256 reflected s 8(1) of the former TPD Act.[5]
[4] PD Act, s 256.
[5] Which were referred to as the 'general provisions'. Refer Explanatory Memorandum, Planning and Development Bill 2005 (WA), page 33.
Section 256 was updated and replaced by s 64 of the Approvals and Related Reforms (No. 4) (Planning) Act 2010 (WA).[6] Section 256, in its amended form, provides that the Governor may make regulations prescribing provisions for local planning schemes that deal with any or all of the following:
(a)carrying out the general objects of local planning schemes; or
(b)any matter set out in Sch 7.
The prescribed provisions: 'model' and 'deemed'
[6] Section 256 was subsequently amended by s 74 of the Planning and Development Amendment Act 2020 (WA) to provide that the Governor, not the Minister had power to make the regulations, 'on the recommendation of the Minister'.
Pursuant to the power contained in s 256(1) of the PD Act, on 19 October 2015, the Minister made regulations prescribing the content of local planning schemes via the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (PD Regs).
Provisions made perforce of s 256(1) of the PD Act applied to all local planning schemes, existing and proposed. The PD Regs prescribe two species of local planning scheme provisions: 'model' and 'deemed'.[7]
[7] PD Act, s 256(4).
'Model provisions' are found in Sch 1 to the PD Regs. The 'model provisions' are a suite of, in effect, standard or template provisions that, unless an exclusion or variation is otherwise granted by the Minister, must be included by a local government at the time that a local planning scheme was made or amended.[8]
[8] PD Act, s 257A(3). These provisions were similar in effect to the 'Model Scheme Text' contained in reg 11(1) read with Appendix B to the Town Planning Regulations 1967 (WA).
The 'deemed provisions' are different. The 'deemed provisions' are within Sch 2 to the PD Regs. Pursuant to s 257B(2) the deemed provisions, from their commencement, were to be read, and could be enforced, as part of each local planning scheme. Accordingly, from 19 October 2015 the deemed provisions became part of each local planning scheme made, or continued, under Pt 5 of the PD Act.
The relationship between the deemed provisions, and existing local planning scheme provisions, was addressed by s 257B(3), which provided that, to the extent that there was an inconsistency between a deemed provision and another provision of the scheme, the deemed provision prevailed, and, to the extent of the inconsistency, the conflicting provision was of no effect.[9]
[9] PD Act, s 257B(3); see also Puma Energy Australia and City of Cockburn [2016] WASAT 36 (2016) 89 SR (WA) 1 [46], [47].
Furthermore, s 257B(5) thereafter required each local government, in preparing a local planning scheme, or a consolidation thereof, to ensure that the scheme or consolidation was consistent with the deemed provisions.[10]
[10] PD Act, s 257B(5).
Having regard to the overall scheme of s 257B of the PD Act, it follows, logically, that, from 19 October 2015, any proposed local planning scheme provision that conflicts with a deemed provision is unlikely to be approved by the Minister.
To this end, it is also relevant that one of the functions of the Western Australian Planning Commission (Commission) is to 'provide advice and assistance to the Minister in relation to local planning schemes, and amendments to those schemes, made or proposed under Part 5'.[11]
[11] PD Act, s 14(m).
Part 5 of the PD Regs includes the requirement that, prior to the Minister's consideration of any proposed local planning scheme or amendment, the Commission must undertake a review and make recommendations to the Minister.[12] No doubt the Commission is required to provide advice to the Minister to ensure that local planning schemes and amendments incorporate, where relevant, the model provisions and also to ensure consistency with the deemed provisions.
[12] PD Regs, reg 29 (local planning schemes), reg 45 (complex amendments), reg 55 (standard amendments) and reg 60 (basic amendments).
In the context of this case, in November 2015, shortly after the deemed provisions commenced, TPS 3 was reviewed and consolidated pursuant to Div 5 of Pt 5 of the PD Act.[13] That is to say, despite TPS 3 pre-dating the PD Regs, it has been consolidated, and thereafter amended, against the backdrop of the deemed and model provisions.
[13] Refer PD Act, s 93.
Indeed, TPS 3 has been amended numerous times, including most recently by Amendment 177 which was published in the Gazette on 14 February 2025.
Matters which a local planning scheme may address
Local planning schemes are made, and amended, pursuant to Pt 5 of the PD Act. A local planning scheme may be made, or adopted, by a local government[14] with respect to any land:[15]
…
(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
(b)making provision for all or any of the purposes, provisions, powers or works referred to in [Sch 7].
[14] PD Act, s 72.
[15] PD Act, s 69(1).
A local planning scheme:[16]
(a)must define the area to which the scheme relates and to specify the local government responsible for enforcing observance with its requirements; and
(b)may include provisions that supplement either the model or deemed provisions, including to deal with any special circumstances or contingencies for which adequate provisions have not been prescribed.
[16] PD Act, s 73.
In preparing or amending a local planning scheme, a local government is to have due regard to any State planning policy affecting its district and may include in the scheme a provision that a specified planning code,[17] with such modifications as may be set out in the scheme, is to be read as part of the scheme.[18]
[17] Planning codes are made pursuant to Pt 3A of the PD Act. See also the Planning and Development (Planning Codes) Regulations 2024 (WA).
[18] PD Act, s 77(1).
Schedule 7 to the PD Act sets out matters that may be dealt with by a planning scheme. Schedule 7 replaced, and updated, Sch 1 to the TPD Act. Schedule 7 includes 15 separate items which planning scheme provisions may address. These include, relevantly:
…
4(2):The conservation of the natural environment of the scheme area including the protection of natural resources, the preservation of trees, vegetation and other flora and fauna, and the maintenance of ecological processes and genetic diversity.
4(3):The conservation of water.
…
6(1):Zoning of the scheme area for appropriate purposes
6(2):Designation of uses in zones as permitted, prohibited or requiring approval.
…
15(1): Policies in respect of any matter to which the Act relates.
…
15(2):Any other matter necessary or incidental to the sustainable development or use of land.
The 'environment' as a planning consideration
Clause 4.10.11 of TPS 3 contains eight subclauses and is, undoubtedly, directed to environmental considerations, namely managing land use and development in the context of land which has been identified in the Resource Zone, and which sits over a public drinking water resource.
The PD Act, like the TPD Act before it, does not expressly identify what is, and is not, a relevant town planning consideration.
However, in the context of an argument that environmental considerations were not relevant town planning considerations that could be taken account of in the exercise of planning discretion, in Squarcini v State Planning Commission,[19] Scott J noted, by reference to Murray J's earlier decision in Marford Nominees Pty Ltd v State Planning Commission,[20] that the matters contained in s 5AA of the then TPD Act appeared to provide some guide as to what are proper town planning principles.[21] Section 5AA of the TPD Act was a provision that enabled the (then) State Planning Commission to prepare what were termed 'Statements of Planning Policy'.
[19] Squarcini and Milino Pty Ltd v State Planning Commission (unreported SCt of WA, (Scott J), Library No 960200, 17 April 1996) (Squarcini).
[20] Marford Nominees Pty Ltd v State Planning Commission (unreported, SCt of WA, (Murray J), Library No 960047, 1 February 1996).
[21] Squarcini, page 11.
These policies are now known as 'State planning policies' and are prepared pursuant to Pt 3 of the PD Act.[22] In Squarcini, Scott J noted that such policies could be prepared having regard to, relevantly, 'conservation of natural or cultural resources for social, economic, environmental, ecological and scientific purposes' as well as 'amenity and environment' considerations.
[22] Together with the Planning and Development (State Planning Policies) Regulations 2024 (WA). The equivalent of s 5AA is now found in s 27 of the PD Act.
Scott J concluded that, in his view:[23]
… s5AA of the [TPD Act] is of use in determining what are proper town planning principles. There is no other section of the Act which purports to identify proper town planning principles[.]
[23] Squarcini, page 12.
It follows that any debate as to whether environmental factors are relevant town planning considerations was answered affirmatively, and authoritatively, by the Supreme Court in Squarcini.
Indeed, the relationship between the environment and town planning has only grown closer under the PD Act. For example, the purposes of the PD Act include to 'promote the sustainable use and development of land in the State'.[24] Likewise, as I have set out, Sch 7 now expressly provides that a local planning scheme may include provisions that address the conservation of the natural environment, as well as water.
Principles that apply to the construction of a planning scheme
[24] PD Act, s 3(1)(c).
In the Court of Appeal decision in City of Gosnells v Reid,[25] Buss P and Vandongen JA set out, by reference to the earlier Court of Appeal decision in Australian Unity Property Limited as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton,[26] the following summary of the principles that govern the construction of a local planning scheme:
(1)The construction of a local planning scheme is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context.
(2)The task of statutory construction must begin with a consideration of the text. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text, and the language actually used in the text of the legislation is the surest guide to legislative intention.
(3)Context and purpose may affect the meaning of statutory language. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words have meanings other than their ordinary meaning.
(4)The legislative purpose which informs the proper construction of legislation is identified by an objective exercise of construction based on what the legislation says, rather than by reference to assumptions about the desired or desirable reach or operation of the relevant provisions.
(5)Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of planners, government officials, landowners and prospective landowners to comprehend its meaning and to identify the permissible uses of land to which the scheme applies.
(6)Planning schemes are not usually drafted by parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Accordingly, such schemes should be construed broadly rather than pedantically and with a sensible practical approach.
[25] City of Gosnells v Reid [2024] WASCA 155 [147].
[26] Australian Unity Property Limited as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [77] - [91].
Relevant Scheme provisions
Part 1 of the Scheme deals with preliminary matters. The purpose of TPS 3 is to, relevantly, 'control and guide land use and development'.[27]
[27] TPS 3, cl 1.5(d).
The aims of TPS 3 are to:[28]
a)ensure that development and the use of land within the district complies with accepted standards and practices for public amenity and convenience;
b)ensure that the future development and use of land within the district occurs in an orderly and proper way so that the quality of life enjoyed by its inhabitants is not jeopardised by poor planning, unacceptable development and the incompatible use of land.
[28] TPS 3, cl 1.6.
Clause 1.7.5 provides as follows:
Notwithstanding anything else in the Scheme, where a use in the Resource Zone is defined in [SPP 2.1] or [SPP 2.3],[29] it shall have the meaning given to it in each respective Policy.
In the event of a conflict between the two Policies and the Scheme, [SPP 2.3] prevails over [SPP 2.1] and in the Resource Zone both Policies prevail over the use class definitions contained in Schedule 1 to the Scheme.[30]
[29] State Planning Policy 2.3 Jandakot Groundwater Protection (SPP 2.3).
[30] TPS 3, cl 1.7.5.
The objective of the Resource Zone is to:[31]
To provide for the protection of the Perth metropolitan underground water resource in accordance with the requirements of [SPP 2.3] …
[31] TPS 3, cl 3.2.1(m).
In terms of land use permissibility, where a specific use is mentioned in the Scheme's zoning table, it is deemed to be excluded from the general terms used to describe any other use.[32] Innominate uses may be approved if the City determines that the use is consistent with the objectives of the relevant zone.[33]
[32] TPS 3, cl 3.4.1.
[33] TPS 3, cl 3.4.2.
Under TPS 3's zoning table, the use class permissibility for the Resource Zone is to be as per cl 4.10.11.
Clause 4.10 is directed to all rural zones within the Scheme, which includes the Resource Zone. Within these rural zones,[34] there are controls on the location of building envelopes and fencing.[35] The City can require the owner of any land to rehabilitate land where it is of the view that that land has been eroded, neglected, degraded or cleared in a manner that harms the environment, or reduces the amenity of the locality.[36]
[34] Which includes the Rural Zone, the Rural Living Zone and the Resource Zone.
[35] TPS 3, cl 4.10.2.
[36] TPS 3, cl 4.10.4.
There is also a general prohibition on the clearing of existing vegetation, subject to a narrow band of exemptions.[37] The City can also serve a notice on any owner or occupier of land to either preserve specified vegetation, to plant vegetation or remove stock in instances of overgrazing.[38] In addition, there are provisions to: protect wetlands,[39] manage stock grazing rates[40] and control development above water tables.[41] There are also controls to protect both native fauna[42] and flora.[43]
[37] TPS 3, cl 4.10.5(a).
[38] TPS 3, cl 4.10.5(c).
[39] TPS 3, cl 4.10.6 and cl 4.16.
[40] TPS 3, cl 4.10.7.
[41] TPS 3, cl 4.10.9.
[42] TPS 3, cl 4.14.
[43] TPS 3, cl 4.15.
Clause 4.10.11, which is at the heart of this dispute, specifically deals with development in the Resource Zone. It provides as follows:
a)The use and development of land within the Resource Zone shall be in accordance with the provisions of:
(i)The relevant State Planning Policy for water.
(ii)The relevant State Planning Policy for basic raw materials.
b)Despite the provisions of cl 4.10.11(a)(i) the Use Classes of Cattery, Dog Kennels and Poultry Farm (housed) are uses not permitted 'X' in the Resource Zone, except that a Cattery and Dog Kennels may be permitted in part of the Resource Zone in accordance with Table 6 - Additional Uses - No. AU7.
….
d)Uses that are identified as 'incompatible' or which are not listed in [the Water Quality Policy] … are 'X' uses in the Resource Zone.
e)All uses which are not listed as prohibited ('X') uses in [the Water Quality Policy] shall be treated as 'D' uses, unless otherwise specified in this Scheme, and shall be referred to the Department of Water and Environmental Regulation for advice and any other authority considered relevant to the application by the local government prior to the local government making its determination.
…
Relevant deemed provisions
In terms of the deemed provisions, Pt 7 deals with the requirement for development approval and Pt 8 sets out the manner in which applications for development approval may be made, including advertising.
Part 9 deals with the procedure for dealing with applications for development approval. For present purposes, cl 67(1)(a) provides that development approval cannot be granted for an 'X' use. Nor can approval be granted for a development that does not comply with a requirement of the Scheme, unless, relevantly, there is discretion to waive or vary that requirement.
If cl 67(1) does not apply to a proposed development, cl 67(2) then sets out a range of matters that the local government is required to have 'due regard' to in determining the application for development approval in the exercise of planning discretion.
Amendment 155 to the Scheme
Clause 4.10.11 was amended pursuant to Amendment 155 which was published in the Gazette on 24 May 2022.
The purpose of Amendment 155 was to provide clarity around the permissibility of land uses in the Resource Zone and to ensure consistency between SPP 2.3 and the Scheme.
State planning policy: SPP 2.3
SPP 2.3 was prepared pursuant to Pt 3 of the PD Act. It was published in the Gazette in January 2017. SPP 2.3, relevantly:[44]
… aims to protect the Jandakot Groundwater Protection area … from development and land uses that may have a detrimental impact on the water resource.
… provides guidance regarding planning requirements that need to be considered in the policy area and should be read in conjunction with the [Water Quality Policy].
[44] SPP 2.3, Pt 1, page 1.
Part 6 of SPP 2.3 sets out policy measures. Part 6.4 deals with local planning schemes. It provides, relevantly, as follows:
a)The land uses and equivalent annotations listed in [the Water Quality Policy] should be reflected in relevant amendments to local planning schemes or in new local planning schemes. [The Water Quality Policy] categorises land uses as 'acceptable', 'compatible with conditions' and 'incompatible'.
iAcceptable means the use is permitted providing the use complies with the relevant development standards and the requirements of the local planning scheme. This should be represented as a 'P' use in the local planning scheme.
iiCompatible with conditions means the use is not permitted unless the local government, after having due regard for the advice from the Department of Water, has exercised its discretion by granting planning approval. This should be represented as a 'D', 'A' or 'AA' use in the local planning scheme.
iiiIncompatible means the land use should not be permitted. This should be represented as an 'X' use in the local planning scheme.
Water Quality Policy
The Water Quality Policy was prepared by the DWER in August 2021. It was advertised as part of the Commission's public consultation on SPP 2.3. The Water Quality Policy provides guidance on land uses and activities within public drinking water source areas to protect drinking water quality and public health and is used to prepare and assess planning proposals in accordance with SPP 2.3.
The Water Quality Policy identifies three categories of priority areas, as follows.
Priority 1 (P1) areas are generally located over government owned land, such as state forests. The objective in P1 areas is to avoid unnecessary water quality contamination risks …
Priority 2 (P2) areas are located over land zoned rural, such as farmland and rural residential lots. The objective in P2 areas is to minimise water quality contamination risks. Low levels of development consistent with the rural zoning are considered appropriate, generally with conditions.
Priority 3 (P3) areas are located over land zoned urban, commercial and light industrial. The objective in P3 areas is to manage water quality contamination risks so that the drinking water source is maintained for as long as possible. Within P3 areas, drinking water sources co-exist with higher intensity land uses. Key elements in the protection of P3 areas include the need for deep sewerage and implementing best management practices[.]
In terms of the content of local planning schemes, in particular zoning tables and land use permissibility, the Water Quality Policy recommends that:
(a)uses identified as incompatible should be prohibited (an 'X' use);
(b)uses identified as compatible with conditions can be interpreted as discretionary uses (either 'D' or 'A' uses);
(c)uses identified as acceptable can be interpreted as permitted uses ('P' uses).
The Water Quality Policy:
(a)provides that, in general terms, DWER will not support land uses and activities that are shown as incompatible because they pose an unacceptable contamination risk to water quality within the applicable priority area; and
(b)includes Table 1 which sets out the compatibility of land uses within the various 'priority areas'. These land uses are then defined in Appendix A, with the definitions having been drawn from Sch 1 to the PD Regs (being the model provisions).
A 'transport depot' is identified as an incompatible use in a P2 area.
Applicant's submissions
The Applicant submits that a so-called Henry VIII clause allows the Executive to amend Acts of Parliament by way of a subsidiary instrument. Courts have traditionally adopted a narrow construction of such provisions.
If cl 4.10.11(a)(i) of TPS 3 is to have effect as a Henry VIII clause, its intended operation must be clear. Such an intention must be expressed, it cannot be implied. The clause does not manifest such an intention. The Applicant submits there is nothing in cl 4.10.11(e) that elevates the Water Quality Policy to be read as part of the Scheme.
Henry VIII type clauses detract from the legislative power of the Executive and ought to be read narrowly if there is any doubt about the scope of the power.[45] In the absence of Scheme provisions which clearly give force to an instrument such as the Water Quality Policy, it cannot have legislative effect.
[45] R v Secretary of State for Social Security; Ex parte Britnell [1991] 1 WLR 198, 204.
Furthermore, the Water Quality Policy is unlike a structure plan that was considered in Scutti v City of Wanneroo (Scutti),[46] on the basis that a structure plan is a planning instrument. The Water Quality Policy does not have a planning character per se. The Scheme cannot be read to, in effect, incorporate the Water Quality Policy.
[46] Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417(Buss P, Murphy JA, Allanson J).
Respondent's submissions
It is an agreed fact that the Proposed Development involves the transfer of up to 17 persons between motor vehicles for hire or reward by way of drivers transferring from their 'standard B99 vehicles' to their 8tonne truck at the start of the working day, and then from their truck back to their standard vehicle at the end of the day.
The parking or garaging of three or more commercial vehicles on land will constitute a 'transport depot' for the purposes of the Water Quality Policy. It follows that the Proposed Development falls within the definition of a 'transport depot'.
Pursuant to the Zoning Table to TPS 3, the development of land in the Resource Zone for any of the uses mentioned in the Zoning Table, is to be in accordance with cl 4.10.11.
Clause 4.10.11(a)(i) provides that the use and development of land within the Resource Zone shall be in accordance with the Water Quality Policy.
Clause 4.10.11(d) states that land uses identified as 'incompatible' or which are not listed in the Water Quality Policy are 'X' uses in the Resource Zone. Clause 4.10.11 is consistent with cl 6.4(a) of SPP 2.3 which provides that the land uses listed in the Water Quality Policy should be reflected in relevant amendments to local planning schemes. Amendment 155 to TPS 3 reflected this principle.
The decision in Scutti is authority for the proposition that the permissibility of land uses, can be determined by reference to, or by the incorporation of, an external document which does not otherwise form part of a local planning scheme. Furthermore, the reference to, or incorporation of, an external document for the purposes of determining land use permissibility, does not constitute an amendment to the planning scheme. [47]
[47] Scutti [101], [125].
The Applicant's submissions as to Henry VIII clauses are misconceived as this is not an instance of subsidiary legislation purporting to amend an Act of Parliament. Rather, it involves the incorporation of an external document by a planning scheme for the purposes of determining land use permissibility. For the reasons set out in Scutti, such an approach is lawful.
Consideration
For the following reasons, I find that both cl 4.10.11(a)(i) and cl 4.10.11(d) are lawful provisions that are to be applied according to the ordinary meaning of their terms.
Firstly, there is no debate that a local planning scheme can include provisions that deal with the conservation of the natural environment within the scheme area, including the protection of natural resources as well as water. That question was asked and answered in Squarcini and is now made plain by items 4(2) and (3) in Sch 7 to the PD Act.
Secondly, it is beyond argument that the Water Quality Policy is a policy that, by its terms, is intended to be taken account of in land use planning decision-making, including the making or amendment of planning schemes, as well as in development control. It is also a policy that reflects the principles set out in SPP 2.3, a State planning policy made pursuant to Pt 3 of the PD Act that is specifically directed to managing the Jandakot groundwater resource.
I note here that I am required to have due regard to 'relevant planning considerations', including any State planning policy that may affect the subject matter of the application.[48]
[48] PD Act, s 241(1)(a).
In Zampatti v WAPC (Zampatti),[49] the Court of Appeal considered the meaning of the phrase 'relevant planning considerations' in the context of s 241(1) of the PD Act. Zampatti involved an appeal from a decision of the President of the Tribunal, on a review undertaken by a judicial member pursuant to s 244 of the PD Act. Kenneth Martin J stated as follows:
121The term 'relevant planning considerations' is not defined within the [PD Act]. But the phrase is manifestly of broad import and obviously would include a SPP.
122However, 'relevant planning considerations' would also encompass, in present circumstances, those local planning considerations of a character as are identified in Mr Graham's reasons as 'policy and statutory context which affects the subject land' [80] or, in the reasons of the President, as the relevant 'planning framework'.
123The wide phrase 'relevant planning considerations' used in s 241(1), may therefore readily extend to embrace potentially multiple planning considerations, in any given context.
[49] Zampatti v WAPC [2010] WASCA 149; (2010) 176 LGERA 150.
That judicial reasoning is apposite here. It follows that I do not accept the Applicant's argument that the Water Quality Policy is not a 'planning policy'. Given that land use planning may encompass environmental considerations, in my view, it is well within DWER's remit to prepare and adopt a policy that is to inform land use planning decisions and thus, may properly be characterised as a 'planning policy' and therefore a 'relevant planning consideration'. Indeed, SPP 2.3 itself provides that it is to be read in conjunction with the Water Quality Policy.
Thirdly, there is nothing in the PD Act that would suggest that a local planning scheme clause in the nature of cl 4.10.11(a) is beyond power. Nowhere in Pt 5, or elsewhere, within the PD Act, is there a provision which would make it impermissible for a local planning scheme to include a provision that directly aligns the land use permissibility of a scheme zone with a policy that has been prepared to protect and manage groundwater resources. Section 69 of the PD Act provides that a local planning scheme may be made:
(a)with the general objects of making suitable provision for the improvement, development and use of land; and
(b)may include any or all of the provisions, powers or works referred to Sch 7.
Those words, which inform the scope and objects of a local planning scheme, are of broad import. They are not words of limitation.
The decision in Costa v Shire of Swan (Costa)[50] addressed the question as to what a 'town planning scheme' was for the purposes of the TPD Act, as well as what matters a planning scheme could address. Costa involved an application for a declaration by landowners that a development scheme, being a species of town planning scheme which levied development contributions from landowners for a new industrial estate in Malaga, was not a valid 'town planning scheme' for the purposes of the TPD Act. Moreover, the landowners' case was that such a scheme was tantamount to a tax on landowners and was therefore beyond power.
[50] Costa v Shire of Swan [1983] WAR 22, 24.
As to whether the scheme was a valid 'town planning scheme', having reviewed the relevant scheme-making provisions of the TPD Act, Olney J approached the question broadly and explained that, in his view, and without attempting to provide an exhaustive definition, a 'town planning scheme' was any:[51]
… programme of action with respect to any land, houses, buildings or other works and structures (which may be situated in any city, town, suburb or rural area) which has the general object of improving and developing such land etc to the best possible advantage.
[51] Costa, 24.
In rejecting the argument that a planning scheme mandating development contributions from landowners was unlawful, Olney J explained that, provided a planning scheme was made in a manner that accorded to the requirements of the TPD Act, 'the scope for town planning schemes is as wide and diverse as the ingenuity of planners is able to contemplate'.[52] Olney J then explained:[53]
… whenever a question arises as to the validity of a scheme the sole consideration is to determine whether the scheme can be properly described as a town planning scheme as that term is understood within the context of the [TPD Act]. If an affirmative answer is obtained then the scheme has the force of law as if it were enacted within the [TPD Act].
[52] Costa, 24.
[53] Costa, 29.
In my view, the approach taken by Olney J in Costa is instructive. That is to say, so long as the scheme provision in question has been lawfully made, and falls within the subject matter, scope and purpose of the PD Act, it should be construed so as to give it its ordinary meaning.
In this case, from my review of the PD Act and, in particular, the purposes, objects and contents of local planning schemes there is nothing that would render cl 4.10.11 as being a provision that is beyond power that ought not be construed in accordance with its ordinary meaning. That meaning, by reason of cl 4.10.11(a)(i) is that land use permissibility in the Resource Zone is to be as set out in the Water Quality Policy and, by reason of cl 4.10.11(d), that land uses that are identified as incompatible in the Water Quality Policy are to be regarded as prohibited 'X' uses for the purposes of the Scheme.
Fourthly, the express purposes of the PD Act would seem to authorise a provision such as cl 4.10.11(a)(i). That is so because, the purposes of the PD Act are to both: (i) promote the 'sustainable use and development of land'; as well as to (ii) provide for an 'efficient and effective land use planning system'.[54]
[54] PD Act, s 3(1)(b) and (c).
As to the 'sustainable use and development of land', one of its three pillars of sustainability is the environment. As is now common knowledge, at the core of sustainability, is the need for decisions to meet the needs of the present generation, without compromising the ability of future generations to meet their own needs. Clause 4.10.11(a)(i) reflects the principles set out in both SPP 2.3 and the Water Quality Policy. Clause 4.10.11(d), in turn, seeks to align land use decision-making with the broader need to manage the water resource for the longer term.
The objective of SPP 2.3 is to, inter alia, maximise the long-term protection and management of groundwater, in particular, for public drinking water supply purposes. The groundwater protection principles set out in SPP 2.3 emphasise:
(a)the need to apply the precautionary principle in the context of land use decisions which pose a threat to the groundwater resource; and
(b)inter-generational equity (sustainable use), the notion that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.
A local planning scheme provision that gives effect to a state-level policy focused on the management of land uses over a scarce natural resource, such as public drinking water, in my view, very much aligns with the purpose of the PD Act of promoting the sustainable use and development of land.
Moreover, such a planning system protects the public interest in managing what is a finite natural resource for the longer term. I have elsewhere observed that the question of public drinking water quality is a matter of public health which, of itself, warrants a precautionary approach being taken.[55]
[55] Al-Boraich and City of Swan [2020] WASAT 163 [104].
I turn next to consider the statutory purpose of an 'efficient and effective land use planning system'. In my view, a local planning scheme provision that, in the context of land affecting a designated groundwater area from which is sourced public drinking water, aligns land use decision-making with the land use compatibility tables established by the State's environmental regulator (DWER), can be said to provide for an efficient and effective land use planning system.
Were it otherwise, and land use planning decisions were able to be made in a manner contrary to the Water Quality Policy, there is plainly a risk that planning decisions would result in the public drinking water resource being eroded and the quality of the resource damaged. In my view, a land use planning system that tolerates such risks could hardly be regarded as efficient, nor effective, from a natural resource management perspective.
Fifthly, there is nothing in TPS 3 itself which suggests that cl 4.10.11 needs to be read down or is otherwise in conflict with any Scheme provision. Indeed, the opposite is evident. I have set out above cl 1.7.5,[56] the effect of which is, relevantly, that SPP 2.3 prevails over the use class definitions set out in the Scheme. SPP 2.3 incorporates, and operates together with, the Water Quality Policy.
[56] Refer para [45].
I have also explained the subclauses in cl 4.10 in some detail.[57] Clause 4.10 applies to all rural land in the City and includes a comprehensive set of provisions which, together, work to provide for rural activities and enterprises but, at the same time, protect the environment, including wetlands and groundwater resources.
[57] Refer paras [49] - [50].
In terms of land use permissibility in the Resource Zone, the zoning table expressly defers to cl 4.10.11. No inconsistency is evident in that arrangement. Moreover, the express objective of the Resource Zone is to protect and manage the underground water resource in the manner envisaged by SPP 2.3.
I note here that, in preparing and amending the Scheme, the PD Act requires the City to give due regard to SPP 2.3.[58] SPP 2.3 itself includes a presumption against development or land uses that are inconsistent with the priority areas and is to be read in conjunction with the Water Quality Policy. Clause 4.10.11 simply gives effect to the policy intent of SPP 2.3, which directly aligns the objectives of the Resource Zone.
[58] PD Act, s 77(1).
Nor can I discern any inconsistency with a deemed provision. While the deemed provisions make it plain that a structure plan[59] and a local development plan[60] cannot bind a decision-maker, there is no express, nor inferred, prohibition on other instruments having this effect.
[59] Prepared pursuant to Pt 4 of the deemed provisions; refer cl 27.
[60] Prepared pursuant to Pt 6 of the deemed provisions, refer cl 56.
Indeed, cls 67(1)(a) and (b)(i) of the deemed provisions expressly contemplate that some development well may be an 'X' use or otherwise unable to comply with a requirement of the Scheme, such that it cannot be approved. It is trite that the control and regulation of land uses, and the separation of various land uses goes to the very foundation of land use planning, in particular development control.
It seems to me, as a matter of planning principle, entirely appropriate that a local planning scheme has the capacity to make certain land uses incapable of approval in some, or all, zones. Clause 4.10.11(d) is simply a manifestation of such a provision. The fact that the land use incompatibility for the Resource Zone is referenced from an instrument made outside of the Scheme does not alter the result. There is no prohibition on the Scheme being drafted in such a manner.
Indeed, it is not uncommon for planning schemes to incorporate and utilise content from instruments that sit well outside the PD Act. For example, Div 2 of Pt 6 of the model provisions includes a number of defined land use terms. Those defined terms incorporate definitions from inter alia the Racing and Wagering Western Australia Act 2003 (WA), the Liquor Control Act 1988 (WA) and the Mining Act 1978 (WA). The point being, there is no reason why TPS 3 is unable to refer to, and rely on, content from the Water Quality Policy.
Finally, and most critically, the words of TPS 3, including cls 4.10.11(a)(i) and (d), have the force of law.
In Scutti, the Court of Appeal was dealing with a question as to whether land that was identified in a structure plan as 'public open space' (POS) was injuriously affected within the meaning of s 174 of the PD Act.
Section 174 relevantly provided that land is deemed to be injuriously affected by reason of the making or amendment of a planning scheme, if the land is reserved (whether before or after the coming into operation of this section) for a public purpose under the planning scheme.[61]
[61] PD Act, s 174(1)(a).
Application was made to the Tribunal for a determination as to whether the land was injuriously affected. The Tribunal, consistent with the case put by the City, found that the land was not injuriously affected.[62] The matter proceeded on appeal to the General Division of the Supreme Court where, again, the City was successful.[63]
[62] City of Wanneroo v Scutti [2016] WASAT 102.
[63] Scutti v City of Wanneroo [2017] WASC 70; (2017) 221 LGERA 144 (le Miere J).
On appeal from the General Division, the Court of Appeal ultimately found that the relevant structure plan imposed a 'classification' on the POS land, by reference to a reserve (a Local Reserve) for the purposes of the local planning scheme.
At the heart of the dispute in Scutti was whether the local planning scheme provisions set out below, had the effect of injuriously affecting the land that was identified as POS in the structure plan:
9.8.2Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and
b)provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area.
9.8.3Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:
…
e)where land is classified as a Local Authority Reservation, the rights, provisions and procedures, and the obligation of the Council in regard to compensation shall apply as if the land was correspondingly reserved under the Scheme[.]
What is relevant for present purposes is that the scheme provisions had the force of law, as if enacted by the PD Act. The Court of Appeal concluded that the meaning and effect of the relevant clauses of the scheme, which required the land to be treated as if it were reserved under the planning scheme, did not operate to bring about a direct amendment to the scheme but, nevertheless, required the planning authority to treat the land as if it were reserved for a public purpose.
While the structure plan indicated other possible uses could be approved on the land, the potential for such uses remained subject to the mandatory relevant consideration that the land had been classified as a reserve for POS. The mere potential for other uses to be approved, did not negate the clear meaning of the scheme clauses that required the land identified as POS to be treated as if it were reserved under the scheme.[64] The Court of Appeal stated:[65]
The classification of the appellants' land as a reserve by [the structure plan] does not directly have the force of law, because the land is not directly reserved by DPS2, or by an amendment to DPS2. However, the requirement that the land be treated as if it were reserved under DPS2, does have the force of law.
[64] Scutti [125] - [128].
[65] Scutti [125(9)].
Accordingly, the Court of Appeal was satisfied that the land in question was injuriously affected 'by the making or amendment of a planning scheme' on the basis that it had, in practical terms, been classified and set aside as a reserve for POS.
The Court of Appeal's analysis of the effect of the scheme provisions is, in my view, apposite to the clauses under consideration in this matter. That is, as the Court of Appeal found in Scutti, both cls 4.10.11(a)(i) and (d) are required to be read and applied 'as if they were enacted' by the PD Act.
That is to say, the words in cl 4.10.11(a)(i), which state that the use and development of land in the Resource Zone 'shall' be in accordance with the Water Quality Policy have the force of law. The use of the word 'shall' require it to be interpreted as not a discretionary, but as an imperative, requirement.[66]
[66] Interpretation Act 1984 (WA), s 56(2).
Likewise, the words in cl 4.10.11(d), the effect of which is that a land use designated as incompatible in the Water Quality Policy is to be regarded as an 'X' use in the Resource Zone, have the force of law.
Contrary to the Applicant's submissions, cl 4.10.11(d) is not a Henry VIII clause. This is because cl 4.10.11(a) does not operate, or purport to operate, so as to bring about a direct amendment to TPS 3, such that the Water Quality Policy is to be read as part of the Scheme. Rather, by their terms, these provisions clearly and unambiguously require the decisionmaker to treat a land use which the Water Quality Policy identifies as an incompatible use, as a prohibited use in the Resource Zone.
The clear ratio decidendi of the Court of Appeal in Scutti, and one which I am bound to follow, is that the words of a planning scheme have the force of law and apply according to the ordinary meaning of their terms.
Conclusion on the effect of cls 4.10.11(a)(i) and (d)
I have set out above why, based on the subject matter, scope and purpose of the PD Act, I do not find that either cls 4.10.11(a)(i) or (d) to be repugnant, nor inconsistent with, the purpose of the PD Act. I am also satisfied that TPS 3 is authorised to include provisions which deal with the protection and management of the environment and natural resources such as groundwater.
Reading and applying cls 4.10.11(a)(i) and (d), in the context of TPS 3 read as a whole, I am satisfied that land uses within the Resource Zone are required to be consistent with the Water Quality Policy. These clauses have the force of law, and their ordinary meaning has the effect that a land use identified as incompatible in the Water Quality Policy, is to be treated as a prohibited use in the Resource Zone.
Classification of the Proposed Development
Having constructed the relevant provisions of the Scheme, I turn now to address the substantive question put forward for determination by the parties.[67] That issue is whether the Proposed Development is capable of approval under TPS 3. Resolution of that question requires the Proposed Development to be classified for the purposes of TPS 3.
[67] Applicant's Statement of Preliminary Issues, 10 September 2024.
As I have already set out, it is an agreed fact that the Proposed Development comprises:
(a)the parking of 17 x 8-tonne rigid trucks during the evening;
(b)the parking of 17 x standard B99 vehicles during the day; and
(c)a 2,000m2 hardstand area and vehicle turning bay (constructed on the eastern side of the Land).
Appendix A of the Water Quality Policy defines a 'transport depot' as per the definition contained in the model provisions. That definition is as follows:
transport depot means premises used primarily for the parking or garaging of 3 or more commercial vehicles including:
(a)any ancillary maintenance or refuelling of those vehicles; and
(b)any ancillary storage of goods brought to the premises by those vehicles; and
(c)the transfer of goods or persons from one vehicle to another.
Table 2 of the Water Quality Policy identifies a 'transport depot' as a 'commercial' land use. A 'transport depot' is an incompatible use in a P2 area.
The Proposed Development involves 17 B99[68] vehicles driven to the Land each day by people who live locally. Those people then each leave their (up to) 8-tonne trucks on the Land overnight.[69] That is to say, the Proposed Development allows local owners to store their trucks on the Land in the evening and to collect them for use during the day, following which they are returned.
[68] A B99 vehicle, as I understand it, is, in effect, a passenger vehicle which measures 5,200 millimetres in length and is 1,940 millimetres wide.
[69] Respondent's s 24 Bundle, page 3.
It is therefore plain that the Proposed Development is a development that involves the 'parking or garaging' of up to 17 8-tonne rigid trucks during the evening, and the 'parking' of 17 standard B99 vehicles during the day. It also encompasses the transfer of drivers between their B99 vehicles and their trucks.
I am therefore satisfied, and I find, that the Proposed Development is a 'transport depot' for the purposes of the Water Quality Policy, a use that is incompatible in a P2 area. By reason of cl 4.10.11(d), the Proposed Development involves a use that is required to be treated as an 'X' use in the Resource Zone.
By reason of cl 67(1)(a) of the deemed provisions, the Proposed Development is incapable of approval. In its review jurisdiction, the Tribunal has the same functions and discretions as those exercisable by the decision-maker.[70] Accordingly, there is no capacity for the Tribunal to approve the Proposed Development.
[70] State Administrative Tribunal Act 2004 (WA), s 29(1).
Result
For the foregoing reasons, I find that the Proposed Development is a prohibited use which is incapable of approval under TPS 3.
The parties should confer on the orders necessary to give effect to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
17 JUNE 2025
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