Brikmakers and Shire Of Chittering
[2017] WASAT 26
•3 FEBRUARY 2017
BRIKMAKERS and SHIRE OF CHITTERING [2017] WASAT 26
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 26 | |
| STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) | |||
| Case No: | DR:241/2016 | 3 NOVEMBER 2016 | |
| Coram: | MS R PETRUCCI (MEMBER) | 3/02/17 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | The question of whether the application for planning approval is invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd is answered in the negative | ||
| B | |||
| PDF Version |
| Parties: | BRIKMAKERS SHIRE OF CHITTERING ALEXANDER PAYNE RAZOR HOLDINGS PTY LTD |
Catchwords: | Preliminary issue Owner in relation to land Land Ownership of certain minerals in land Minerals reserved to Crown Certificate of Title created before 1899 Town planning Development application Signature required on application Whether absence of signature renders application invalid |
Legislation: | Interpretation Act 1984 (WA), s 18, s 44 Limitation Act 1935 (WA) Local Government Act 1993 (WA), s 286 Mining Act 1978 (WA), s 9(1) Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 79, reg 81, Sch 2 cl 1, cl 62(1)(b), cl 62(2), cl 86(1) Planning and Development Act 2005 (WA), s 3, s 4, s 243, s 251(1), s 257B, Pt 14 Shire of Chittering Town Planning Scheme No 6, cl 9.1.1 State Administrative Tribunal Act 2004 (WA), s 38, s 39, s 59 |
Case References: | Australian Real Estate Investment Ltd v City of Armadale [2003] WATPAT 24 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5 Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71 Payne v Dwyer (2013) 46 WAR 128; [2013] WASC 271 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Puma Energy Australia and City of Cockburn [2016] WASAT 36 Randall and Town of Vincent [2005] WASAT 129 Tasker v Fullwood [1978] 1 NSWLR 20 The Owners Strata Plan No 37762 v Dinh Phuong Pham and Anor [2006] NSWSC 1287 Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134 |
Orders | 1. The preliminary issue is answered in the negative.,The applicant's application for Planning Approval is not invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd.,2. The proceeding is adjourned to a further directions hearing at 2:00 pm on Friday, 3 March 2017 at 565 Hay Street, Perth, Western Australia in order to program the matter to a final hearing. |
Summary | This matter concerned a development application seeking approval to develop and use a portion of the property at Lot 7 (No 75) Toy Road, Bindoon for the purposes of clay excavation.,The Tribunal was called upon to determine as a preliminary issue whether the application for planning approval was invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd who hold an undivided half share in minerals, other than gold, silver and other precious metals (which are reserved to the Crown). Mr Payne and Razor Holdings Pty Ltd were joined as a party to the proceeding for the preliminary issue only.,After considering the Shire of Chittering Town Planning Scheme No 6, the Deemed Provisions set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) and the Planning and Development Act 2005 (WA) and relevant case law, the Tribunal concluded that Mr Payne and Razor Holdings Pty Ltd were not the owners of the relevant land (from which the clay is to be extracted) for the purposes of the Planning and Development Act 2005. Therefore they were not required to sign the development application. This meant that the application was not invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : BRIKMAKERS and SHIRE OF CHITTERING [2017] WASAT 26 MEMBER : MS R PETRUCCI (MEMBER) HEARD : 3 NOVEMBER 2016 DELIVERED : 3 FEBRUARY 2017 FILE NO/S : DR 241 of 2016 BETWEEN : BRIKMAKERS
- Applicant
AND
SHIRE OF CHITTERING
Respondent
ALEXANDER PAYNE
RAZOR HOLDINGS PTY LTD
Joined Parties
Catchwords:
Preliminary issue Owner in relation to land Land Ownership of certain minerals in land Minerals reserved to Crown Certificate of Title created before 1899 Town planning Development application Signature required on application Whether absence of signature renders application invalid
Legislation:
Interpretation Act 1984 (WA), s 18, s 44
Limitation Act 1935 (WA)
Local Government Act 1993 (WA), s 286
Mining Act 1978 (WA), s 9(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 79, reg 81, Sch 2 cl 1, cl 62(1)(b), cl 62(2), cl 86(1)
Planning and Development Act 2005 (WA), s 3, s 4, s 243, s 251(1), s 257B, Pt 14
Shire of Chittering Town Planning Scheme No 6, cl 9.1.1
State Administrative Tribunal Act 2004 (WA), s 38, s 39, s 59
Result:
The question of whether the application for planning approval is invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd is answered in the negative
Summary of Tribunal's decision:
This matter concerned a development application seeking approval to develop and use a portion of the property at Lot 7 (No 75) Toy Road, Bindoon for the purposes of clay excavation.
The Tribunal was called upon to determine as a preliminary issue whether the application for planning approval was invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd who hold an undivided half share in minerals, other than gold, silver and other precious metals (which are reserved to the Crown). Mr Payne and Razor Holdings Pty Ltd were joined as a party to the proceeding for the preliminary issue only.
After considering the Shire of ChitteringTown Planning Scheme No 6, the Deemed Provisions set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) and the Planning and Development Act 2005 (WA) and relevant case law, the Tribunal concluded that Mr Payne and Razor Holdings Pty Ltd were not the owners of the relevant land (from which the clay is to be extracted) for the purposes of the Planning and Development Act 2005. Therefore they were not required to sign the development application. This meant that the application was not invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd.
Category: B
Representation:
Counsel:
Applicant : Mr C Colvin and Mr G Flynn
Respondent : N/A
Joined Parties : Mr A Payne (In Person)
Solicitors:
Applicant : Hotchkin Hanly
Respondent : McLeods
Joined Parties : N/A
Case(s) referred to in decision(s):
Australian Real Estate Investment Ltd v City of Armadale [2003] WATPAT 24
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470
Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd [2003] NSWCA 5
Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71
Payne v Dwyer (2013) 46 WAR 128; [2013] WASC 271
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Randall and Town of Vincent [2005] WASAT 129
Tasker v Fullwood [1978] 1 NSWLR 20
The Owners Strata Plan No 37762 v Dinh Phuong Pham and Anor [2006] NSWSC 1287
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134
Background
1 On or about 9 September 2015, the Shire of Chittering (Shire or respondent) received from Rowe Group, on behalf of Brikmakers (applicant), an application for planning approval to develop and use a portion of the property at Lot 7 (No 75) Toy Road, Bindoon (Lot 7) for the purposes of clay excavation (application for Planning Approval or application). The application was submitted pursuant to the Shire of Chittering Town Planning Scheme No 6 (TPS 6 or Scheme).
2 On 20 July 2016, the Shire refused the application.
3 On 10 August 2016, the applicant sought review of the Shire's decision with this Tribunal pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
4 By letter of 26 August 2016, Mr Alexander (Lex) Payne (Mr Payne) wrote to the Tribunal stating:
…
I am one of the registered proprietors of an undivided half share of an estate in fee simple in all minerals (other than some designated exceptions) in all that piece of land coloured yellow on the map shown on CT Volume 445 Folio 15A containing eight hundred and thirty six acres [etc.] and being portion of each of Swan Locations 321, 759 and 1372 and being Lot 7 on Plan 7143 (Sheet 2).
…
Our ownership interest is colloquially referred to as old title mineral ownership because the title was created before all minerals were reserved to the Crown. The titleholder retains ownership of all minerals (other than gold, silver and precious metals) from the surface of the land to an indeterminate depth.
The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Schedule 2) define an 'owner' in relation to land to mean, among other things, if the land is freehold land, a person whose name is registered as a proprietor of the land. The PD Act defines 'land' to relevantly include land, tenements and hereditaments and any interest in land, tenements and hereditaments. The decision of Payne v Dwyer (2013) 46 WAR 128 confirms that we own a hereditament and, therefore, we are a registered proprietor of land within the meaning of the PD Act.
… not interested in the review of the planning decision itself but rather whether the application was invalid, we also request the Tribunal to consider whether to order that we should be joined as a party to the proceeding under section 38 of the SAT Act.
6 Mr Payne confirmed that he wished the Tribunal to determine, as a preliminary issue, whether it had the power to consider the application for review.
7 In the same letter Mr Payne acknowledged that s 243 of the PD Act states that s 38 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which allows a person to be joined as a party to a proceeding, does not apply to applications for review under Pt 14 of the PD Act which the application in question was.
8 A directions hearing in the matter was held on 9 September 2016 when all of the relevant parties who had expressed an interest in the matter attended.
9 Following submissions the Tribunal determined that in the interests of procedural fairness and keeping in mind a related issue had already been dealt with by the Supreme Court (inPayne v Dwyer(2013) 46 WAR 128; [2013] WASC 271) (Payne v Dwyer) the issue raised by Mr Payne would be best dealt with as a preliminary issue under s 59 of the SAT Act and the following orders were made:
1. The following question is to be determined as a preliminary issue:
(i) Whether the applicant's application for Planning Approval is invalid or otherwise unable to be validly approved by reason of it not being signed by Alexander Leslie Payne and or Razor Holdings Pty Ltd.
2. Pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA) Alexander Leslie Payne and Razor Holdings Pty Ltd are joined as a party to the proceeding for the purpose of the determining of the preliminary issue only.
10 Other interested parties, namely Pamela and John Winterbourne, Robin and Helen Millsteed and Derek Gascoine (the interested parties) also sought leave to make submissions in respect of the matter which leave was granted and a further order made stating:
3. Pamela and John Winterbourne, together with Robin and Helen Millsteed and Derek Gascoine have leave to file submissions in respect of the preliminary issue.
11 In addition to those three orders, programming orders were made for the filing of submissions and hearing of the preliminary issue was listed for 3 November 2016.
Preliminary issue
12 The preliminary issue to be determined by the Tribunal is whether the application for Planning Approval is invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd.
13 If the answer is 'no' then the matter may proceed to a final hearing.
Agreed facts
14 The following facts were agreed by the parties:
a) By application lodged with the Shire and dated 11 August 2015, (lodged by Rowe Group on behalf of the applicant) planning approval was sought for an extractive industry (clay).
b) The application was signed by Mr Jonathan James Dwyer (Mr Dwyer) as the registered proprietor of Lot 7 on Plan 7148 recorded in each of certificates of title Volume 388 Folio 18A and Volume 445 Folio 17A.
c) Mr Payne and Razor Holdings Pty Ltd hold an undivided half share in minerals, other than gold, silver and other precious metals (which are reserved to the Crown), as shown in certificate of title Volume 2230 Folio 363. The area of land to which this certificate of title applies covers the same area of land as the titles held by Mr Dwyer, referred to immediately above.
d) Mr Payne and Razor Holdings Pty Ltd, whether together or separately, did not sign the application for Planning Approval.
Submissions
15 The Tribunal received detailed written and oral submissions from the applicant, the respondent, the joined parties and the interested parties or their respective counsel, all of which the Tribunal has taken into account in making its decision. To provide a clear understanding of each party's position a summary setting out the relevant points from each party's submissions is attached as Annexure A.
Consideration
16 The application for Planning Approval is somewhat unusual in that three separate certificates of titles record the registered proprietors of the land. Further, Mr Payne's and Razor Holdings Pty Ltd's (the joined parties) certificate of title only relates to ownership of certain minerals in the land (except for minerals reserved to the Crown). The original title was created before 1899.
17 In summary, the joined parties and the interested parties submitted the application for Planning Approval is invalid as the joined parties did not sign the application form (and which cannot now occur). On the other hand, the applicant and the respondent submitted the application is valid as the application form was signed by Mr Dwyer, the owner in relation to the land on which the proposed development (extraction of clay) is to be located.
18 For the reasons set out below, the Tribunal concluded that the application for Planning Approval is not invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd. In coming to this conclusion the Tribunal considered the following four questions:
a) Does TPS 6 or the Deemed Provisions set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) apply?
b) Who is the owner(s) in relation to the land in respect of the application for Planning Approval?
c) Whose signature is required on the application for Planning Approval form?
d) Does the absence of a signature render the application for Planning Approval invalid?
Does TPS 6 or the Deemed Provisions apply?
19 Ms Moharich of Moharich & More, on behalf of the interested parties, Mr and Mrs Millsteed and Mr Gascoine, submitted that the law governing the application for Planning Approval is cl 9.1.1 of TPS 6. She did, however, go on for the sake of completeness to consider whether the application would have been compliant with the Deemed Provisions.
20 Similarly, Mr Payne submitted that that TPS 6 was the relevant scheme at the time the application for Planning Approval was lodged, however he submitted that it is arguable that the Deemed Provisions now apply to the determination of the application.
21 Ms Winterbourne of Lantegy Legal Pty Ltd, on behalf of the interested parties, Mr and Ms Winterbourne, did not contend whether TPS 6 or the Deemed Provisions applied. Rather she made submissions applying both.
22 Messrs Colvin and Flynn for the applicant and McLeods for the respondent submitted the Deemed Provisions apply to the application for Planning Approval. The Tribunal agreed with that contention. That is, the Deemed Provisions apply. The reason for this is because the application for Planning Approval is dated on or about 8 August 2015 and was lodged by the applicant's representative, Rowe Group, with the respondent on or about 10 September 2015 but not determined by the respondent before the commencement of the Regulations which commenced on 19 October 2015.
23 This means the application for Planning Approval is taken to be an application made under TPS 6 as that Scheme is continued under reg 79 of the Regulations, namely a Scheme with effect in accordance with the Regulations, and s 257B of the PD Act provides the Deemed Provisions prevail to the extent of any inconsistencies. Therefore, from 19 October 2015 the respondent was required to consider and determine the application for Planning Approval in accordance with the Deemed Provisions. This is supported by reg 81 of the Regulations which relevantly provides:
A development application made but not determined under a local planning scheme before commencement day is to be taken to be a development application made under the local planning scheme as that scheme is continued under regulation 79 and is to be determined in accordance with the local planning scheme as so continued.
24 The Tribunal concluded that the Deemed Provisions apply in this case.
Who is the owner(s) in relation to the land in respect of the application for Planning Approval?
25 The definition of 'owner' is set out in cl 62(2) of Sch 2 of the Regulations, which relevantly provides:
For the purposes of subclause (1)(b), a person or body may sign an application for development approval as the owner of freehold land if the person is one of the following:-
(a) A person who is referred to in the definition of owner in respect of freehold land in clause 1[.]
26 'Owner' is defined in cl 1 of Sch 2 as:
owner, in relation to land, means
(a) if the land is freehold land
(i) a person whose name is registered proprietor of the land[.]
(Tribunal emphasis)
27 The Tribunal accepted the joined parties are a 'registered proprietor' per the certificates of title. It is also clear the joined parties are the registered proprietor of certain minerals (except for those reserved to the Crown): Payne v Dwyer at [57]. But are the joined parties an owner in relation to land in respect of the application for Planning Approval (or are they a 'proprietor of that land')?
28 The Tribunal does not accept the argument that as the joined parties are a registered proprietor they must be considered an owner under the PD Act as explained below.
29 The term 'land' is not defined in the Deemed Provisions, however, pursuant to s 44 of the Interpretation Act 1984 (WA) (Interpretation Act), words and expressions used in subsidiary legislation are taken to have the same respect and meaning as the written law under which the subsidiary legislation is made.
30 Section 4 of the PD Act defines 'land' to include:
(a) land, tenements and hereditaments; and
(b) any interest in land, tenements and hereditaments[.]
31 Whether the 'clay' to be extracted from Lot 7 is a mineral was not touched on by the parties. However, as this issue is not determinative of the outcome of the preliminary issue in light of other conclusions reached by the Tribunal, the Tribunal has proceeded on the assumption that clay is not a mineral.
32 Pritchard J in Payne v Dwyer concluded at [55] that the joined parties' mineral ownership constitutes a hereditament which falls within the definition of land.
33 However, whilst hereditaments fall within the definition of land it does not necessarily follow that the former term is synonymous with the later or that ownership of hereditaments constitutes ownership of land.
34 In the Tribunal's view, the definition of land is not to be read in isolation but rather must be read in the context of the relevant provisions of the Deemed Provisions, that is with cl 62(2) and cl 1 (set out above) that define 'owner' and require the signature of the 'owner of the land on which the proposed development is to be located' (cl 62(1)((b)).
35 The question of whether 'hereditaments' constitute 'land' was considered in relation to the definition of 'land' by Pritchard J in Payne v Dwyer in regards to the Limitation Act 1935 (WA) but was not ultimately determined. Her Honour stated at [58]:
The next question is whether the Mineral Interest, of itself, constitutes 'land' for the purposes of the Act, so that it is possible to have a claim for adverse possession of the minerals within land, discrete from the balance of the land itself. … However, as the meaning of the term 'land' was not the subject of analysis by the parties, and as this issue is not determinative of the outcome of this case in light of the other conclusions I have reached, I have proceeded on the assumption that the Mineral Interest, of itself, constitutes 'land' for the purposes of the Act. (Tribunal emphasis)
36 There are difficulties, as noted by Pritchard J in accepting the argument that hereditaments constitute land for the purposes of planning principally because the Crown is the 'owner' in which the rights to certain minerals (for example, gold and silver and other precious metals in their natural condition on or below the surface of any land that was not alienated in fee simple from the Crown before 1 January 1899 per s 9(1) of the Mining Act 1978 (WA)) were reserved and therefore owned by the Crown.
37 This would mean that in all cases, where certain minerals are reserved to the Crown, the Crown would need to be a signatory to any application for planning approval. For example, the Crown was not a signatory to the application in the present case.
38 Requiring the Crown to be a signatory, in the Tribunal's view, does not fit with the purpose of the PD Act which is set out in s 3 to:
…
(b) provide for an efficient and effective land use planning system in the State; and
(c) promote the sustainable use and development of land in the State[.]
39 Adopting a purposive interpretation (as required by s 18 of the Interpretation Act and confirmed in Randall and Town of Vincent [2005] WASAT 129 at [77]) of the term 'land' in s 4 of the PD Act and 'owner' in relation to land in cl 1 of the Deemed Provisions, if the Tribunal was to accept that the joined parties' ownership amounted to an 'owner in relation to land', this would inflate the category of owner to encompass persons with limited ownership interests (for example, hereditaments) and thereby potentially frustrate the planning and development intentions of the owners of the land (for example, the surface soil). To conclude otherwise would require the Crown, the owner of certain minerals in this case (and for most alienated land in Western Australia), to sign the application for Planning Approval form. This clearly does not fit with the purpose of the PD Act. Nothing in the PD Act seeks to regulate the private rights of ownership, rather it is only concerned with the development and sustainable use of land through an efficient and effective land use planning system.
40 The Tribunal agreed with the applicant's submission that nothing in the PD Act seeks to regulate the private rights of ownership, rather the PD Act is only concerned with the development and sustainable use of land through an efficient and effective land use planning system.
41 Even if minerals (except those reserved to the Crown) are more valuable than the land itself (for example, the surface soil), per Mr Payne's submission, this is not relevant to the question of who is the owner of the land in respect of the application for Planning Approval.
42 Finally, in the Tribunal's view, the decisions in Puma Energy Australia and City of Cockburn [2016] WASAT 36 (Puma) and North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 (Ligon), raised by the joined parties, are not relevant in this case. This is because those cases concerned the question of whether the consent of the owner of adjoining land used for access via an easement to the development site was required.
43 The Tribunal therefore finds that the joined parties are not 'owners' in relation to the land for the purpose of the application for Planning Approval; rather the joined parties are 'proprietors of that land'.
Whose signature is required on the application for Planning Approval form?
44 Clause 86(1) of the Deemed Provisions requires:
The signature of the owner(s) is required on all applications. This application will not proceed without that signature. …
45 This requirement must be read in conjunction with the definition of 'owner' which, as determined earlier, does not include the joined parties, who are the registered proprietors of certain minerals but not 'in relation to the land' relevant for the application.
46 As noted earlier, cl 62(1) refers to 'the owner of the land'. This does not necessarily mean, in the Tribunal's view, that each and every owner of every type of ownership must sign the form. Rather, the Tribunal is of the view that if the Parliament intended the wording in cl 62(1) to mean all owners it could have expressly provided for it (for example, using a phrase such as 'the owner or owners of the land').
47 The issue of the requirement for the consent of an owner of land the subject for development approval was raised in Pacesetter Homes Pty Ltd v State Planning Commission(1993) 84 LGERA 71 (Pacesetter). That case concerned an application for subdivision and the area for which approval was sought included land which vested in the Crown pursuant to s 286 of the Local Government Act 1993 (WA).
48 It was held in that case, that the consent of the Crown, as 'owner' of the relevant land was necessary as a precondition and the Crown had not consented.
49 The Tribunal agreed with the applicant's submission that nothing in Pacesetterdisplaces the position that the respondent was able to determine the application, even if the joined parties and the Crown had not signed the application for Planning Approval as neither of them is the 'owner' of the relevant land (that is, the land from which clay is to be extracted).
50 In Australian Real Estate Investment Ltd v City of Armadale[2003] WATPAT 24(Australian Real Estate)the issue before the Town Planning Appeal Tribunal was whether every party who came within any aspect of the definition of 'owner' was required to sign the application for Planning Approval form. The tribunal in that case concluded that the proper approach was to read the definition of 'owner of land' disjunctively so that one only needs to meet one of the requirements to constitute an owner. That tribunal decided that where an owner in fee simple of the land had provided its consent it should not be necessary to obtain the further consent of someone with a lesser interest in the land. That tribunal concluded at [28] [32]:
In any event, even if one has regard to the definition of owner one can see that there are some odd aspects to it.
First, Counsel for the Appellant contended that the proper approach is to read the definition disjunctively so that one need only meet one of the requirements to satisfy owner. Further it was contended that the definition was in effect a cascading definition. That is a person who holds an estate in fee simple in possession has a greater interest in the land than for example a lessee or licensee from the Crown so that the devolution of the various interests ultimately leads to what might be described as an equitable interest as trustee or mortgagee in possession.
…
In that regard it seems to us that if the consent of the owner is required then an owner would be met if it is a person who holds an estate in fee simple in possession.
It would be an odd circumstance where having obtained such consent it would then be necessary to obtain the consent of someone with a considerably lesser interest in the land.
51 The decision in Australian Real Estate means that an application required to be signed by the 'owner' of the land may validly be signed by a person who satisfies the definition of owner, notwithstanding that another person who is also an owner with some interest did not sign the application.
52 A similar approach was taken by the Court of Appeal in New South Wales in Owners Strata Plan No 50411 & Ors v Cameron North Sydney Investments Pty Ltd[2003] NSWCA 5 (Owners Strata Plan No 50411) where the Court held the consent of the strata company was not required for development within a lot, notwithstanding that on a literal reading of the definition, the strata company was also an 'owner'.
53 Similarly in this case, the joined parties are an owner of land (as evidenced by their interest in certain minerals as reflected in the certificates of title). However, the signature of one or both of the joined parties, in addition to that of the applicant, Mr Dwyer, was not required.
54 The Tribunal finds the owner of the relevant property (that is, the land from which clay was to be extracted), Mr Dwyer, signed the application for Planning Approval. This means neither the joined parties nor the Crown was required to sign the application for Planning Approval in order for the respondent to consider the application for Planning Approval under the PD Act and Deemed Provisions.
55 Finally, for completeness although not required to be determined, the Tribunal considered the question, whether, in the alternative, if the signature of all owners (refer to earlier discussion) is required by the Deemed Provisions, does the absence of a signature render the application invalid? This, according to Messrs Colvin and Flynn, for the applicant, was the real question.
Does the absence of a signature render the application invalid?
56 To answer this question, the Tribunal considered the High Court's decision in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (Project Blue Sky) where the majority stated at [91]:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. … There is no decisive rule that can be applied[;]there is not even a ranking of relevant factors or categories to give guidance on the issue.
57 The majority of the High Court criticised the distinction between directory and mandatory requirements, which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They stated at [93]:
… A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. …
58 Further, the Court approved the approach taken in Tasker v Fullwood [1978] 1 NSWLR 20 (Tasker) where that court identified the following five propositions at [23]:
(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes …
(2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done,or whether the validity of the act would be preserved notwithstanding noncompliance.
(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute.
(4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement.
(5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms[.] (Citations omitted)
59 As noted earlier, the purpose of the PD Act (as set out in s 3) is to provide for an efficient and effective land use planning system and to promote the sustainable use and development of land. The Tribunal is of the view that it is not the intention of the PD Act or the Deemed Provisions to invalidate an application that is not signed by all owners.
60 Further, the Tribunal does not consider that the purpose of the planning and development legislation would be advanced if the approval of the 'owner' of an undivided interest in certain minerals (except those reserved to the Crown) and/or the Crown (as the owner of certain reserved minerals) had to be obtained for the extraction of clay or for the construction of say a house or a dam on the relevant property (that is, the land from which clay is to be extracted).
61 Therefore, following Project Blue Sky and using the words of McLure P in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134 (Yarri Mining) at [29] the Tribunal concludes, that in the alternative, if the signature of all owners was required on the application, that the failure to have all signatures on the application would be better characterised as a failure to comply with a statutory requirement that is not a precondition to the existence of a power. The result is therefore, the application is not invalid, if in the alternative, the signature of all owners was required on the application.
Conclusion
62 The Tribunal finds that Mr Dwyer is the owner of the relevant land (from which the clay is to be extracted), and that the joined parties are not the owners of that land for the purposes of the PD Act. It follows therefore that only Mr Dwyer was required to sign the application for Planning Approval.
63 The Tribunal noted that an approval granted merely determines whether the proposed development of clay extraction is permissible under the relevant planning provisions and does not itself entitle an owner (Mr Dwyer) to proceed with a development. Rather, other consents (for example, consent of other persons holding some interest in the relevant land) may be required prior to the owner (Mr Dwyer) lawfully proceeding with the development. In The Owners Strata Plan No 37762 v Dinh Phuong Pham and Anor [2006] NSWSC 1287 (The Owners Strata Plan No 37762),the Supreme Court of New South Wales stated at [38]:
… an applicant, even after approval, cannot embark upon the works on another person's property unless that person gives permission so to do. That limitation derives from the property rights of the owner which are exclusive and generally allow the owner to exclude other people coming onto premises and modifying premises without the owner's permission. This right is proprietary and inheres in the owner of the land or property in question.
64 Therefore, if the proposed development infringes on the proprietary rights of an owner of an interest in land, such as a hereditament (held by the joined parties), then it would be open to that owner to pursue a remedy in property law. It is clearly not the purpose of planning law to regulate or protect individual proprietary rights.
65 In summary, the Tribunal concluded that the application is not invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd. This means the matter can now proceed to a final hearing.
Orders
1. The preliminary issue is answered in the negative.
The applicant's application for Planning Approval is not invalid or otherwise unable to be validly approved by reason of it not being signed by Mr Payne and/or Razor Holdings Pty Ltd.
2. The proceeding is adjourned to a further directions hearing at 2:00 pm on Friday, 3 March 2017 at 565 Hay Street, Perth, Western Australia in order to program the matter to a final hearing.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R PETRUCCI, MEMBER
A. Summary of submissions made by Mr Payne and Razor Holdings Pty Ltd (joined parties)
1. Mr Payne appeared at the hearing on 3 November 2016. He was selfrepresented and made submissions to the Tribunal on his behalf and on behalf of Razor Holdings Pty Ltd. Written submissions were also provided.
2. The following is a summary of Mr Payne's submissions:
(a) The ownership interests comprise Mr Dwyer as the sole owner of the surface of the land and Mr Dwyer and the joined parties as owners, as tenants in common, of an undivided half interest in all minerals (except those reserved to the Crown) on or under Lot 7. This could have been recorded on one certificate of title but it was not for the reason that each party could deal with their respective interest separately, which is the nature of common ownership.
(b) The joined parties' registered interest is one undivided half share of an estate in fee simple in all minerals other than mineral oil and gold, silver and other precious metals that are reserved to the Crown in all that piece of land coloured yellow on the map contained on Certificate of Title Volume 445 Folio 15A containing 836 acres and being portion of each of Swan locations 321, 579 and 1372 and being Lot 7 on Plan 7143. The interest in the minerals is far more valuable as compared to the surface of the land.
(c) All the owners of Lot 7 are owners in fee simple in possession of their respective interests in the land as reflected in the certificates of title. Therefore, it cannot be said that one coowner has a greater or lesser interest than another coowner.
(d) The relevant planning scheme at the time of lodging the application for Planning Approval was TPS 6.
(e) In the alternative, if the Deemed Provisions apply to the determination of the application, the joined parties fall within the definition of 'owners' of the land as their name is registered as a proprietor of the land.
(f) The joined parties are entitled to a share in the land in fee simple in possession (see s 63 of the Transfer of Land Act1893 (WA) (TL Act) and Payne v Dwyer.
(g) The joined parties come within the definition of 'owner' in that they are entitled to receive the rents and profits from the land whether as beneficial owner, trustee, mortgagee in possession or otherwise.
(h) The decision in Payne v Dwyer confirms the joined parties' have title to a half share or interest in any substances on or below the surface of Lot 7 that constitute minerals and that should be construed as carrying with it the right to enter onto Lot 7 and work the minerals.
(i) The joined parties' ownership interest clearly constitutes a proprietary interest in the land (s 7 of the Property Law Act1969 (WA), s 5 of the Interpretation Act, s 4 of the PD Act and s 4 of the TL Act).
(j) The reason why all owners are required to sign the application for Planning Approval is to protect the interests of other owners of the land, and further, to protect the local government authority.
(k) The issue arising from the signature requirement for the application form was considered in Puma where the Tribunal referred to the High Court's decision in Ligon. The matter before the High Court concerned the requirement for development consent under s 76(2) of the Environmental Planning and Assessment Act1979 (NSW). The High Court in Ligon stated at [477]:
Although related developments on adjoining parcels of land may each require consent before they are carried out, each development is on its own parcel of land and any necessary consent must be sought by a development application that relates to that parcel not to the adjoining parcel.
(l) The joined parties' ownership interest relates to the same parcel of land (Lot 7) therefore applying the principle espoused in Ligon and adapted by the Tribunal in Puma the application in the current matter is invalid and incapable of approval in the absence of consent by the joined parties (which has not been given).
(m) Prime Holdings v City of Cockburn (1995) 14 SR (WA) (Prime Holdings) does not support the respondent's statement that a requirement in a prescribed form for a signature of an owner does not in itself amount to a mandatory requirement. This is because Prime Holdings is an agency case where all the applicants were happy for the matter to proceed and the person signing the application form was signing as agent for the other parties.
(n) The decision in Australian Real Estate is not relevant as the parties in the current matter have equal ownership interests.
(o) The decision in Owners Strata Plan No 50411is not relevant because in that case there was only one owner in fee simple whereas in the current matter there are three owners in fee simple.
(p) The applicant in its written submission indicated or assumed that he (Mr Payne) was hindering and/or obstructing the application. He denies this and noted that it could be in the joined parties' interest to consent to the application.
(q) The joined parties hold an estate in fee simple in possession and as such they are an owner applying Australian Real Estate where it was stated at [31]:
In that regard it seems to us that if the consent of the owner is required then an owner would be met if it is a person who holds an estate in fee simple in possession.
3. Ms Moharich appeared at the hearing on 3 November 2016 and made submissions on behalf of Mr and Mrs Millsteed and Mr Gascoine. Written submissions were also provided.
4. The following is a summary of Ms Moharich's submissions:
(a) At the date of lodgement of the application for Planning Approval (September 2015) the Regulations were yet to commence and therefore the law governing the application is cl 9.1.1 of TPS 6.
(b) The crux of the preliminary issue is whether the interest held by the joined parties is 'land'. If it is, then it is uncontroversial that the joined parties are owners of the land.
(c) The interest in the minerals, rather than being an interest in land, are considered to be land by the TL Act to which a separate certificate of title has been granted. These 'rights and interests' of the joined parties is land and therefore it follows the joined parties are owners of land for both TPS 6 and the Regulations.
(d) Without the signature of all 'owners of the land' the application for Planning Approval is invalid. The decision of Glenbrook Nominees Pty Ltd and City of Perth[2009] WASAT 3 (Glenbrook) held that the requirement for signing the application is a 'mandatory requirement'. However, this binary concept of mandatory versus directory provisions is no longer considered to be the applicable test one must look at the legislative purpose behind the requirement to determine whether failure to comply with that requirement renders the action invalid: Project Blue Skyat [91].
(e) The decision of Pacesetter was adopted in Glenbrookto decide the purpose of requiring the signature of the owners of land to an application is to ensure that the rights are not affected by the granting or refusal of an approval.
(f) There are policy reasons as to why the signature of the joined parties is necessary. It makes little sense that the provisions could be satisfied by only one owner signing the development application; that such a position offends the position put forward by Murray J in Pacesetter at [84]:
The regulation is expressed in peremptory terms. I think it is properly to be regarded as expressing a precondition which will at least in substance be required to be satisfied before the application may be considered. It is clearly of importance that, at least in substantial terms, the owner makes or consents to an application for subdivision of his land. Without that, it would be proper to regard the application as being hypothetical. The withholding of consent by the owner would debar consideration of the application. … In general terms, and in this case in particular, it seems to me to be important that an owner should not be deprived of its capacity to object to the subdivision or to express views about the conditions upon which the State Planning Commission should grant approval.
(g) In Western Australia it has always been the case that owners of land must sign applications for development approval and that this is because rights can accrue from the determination of the development application, for example, the right to claim compensation but also because conditions of development approval may be contrary to the proprietary rights of the landowner.
(h) It might be inconvenient to require all owners to sign the application; however, the use of the land, for example, to construct a dam, may well impinge on the rights of the owners of the minerals.
(i) The decision in Australian Real Estate has no application in the current matter as the joined parties are an owner of land, not a lesser interest. In that case the Crown is a vesting authority, not an owner of land.
(j) Following Glenbrook, the application is invalid. The same outcome follows under the Deemed Provisions.
C. Summary of submission for Mr and Mrs Winterbourne (interested parties)
5. Ms Winterbourne attended the hearing on 3 November 2016 and made oral submissions on behalf of Mrs Pamela and Mr John Winterbourne. Written submissions were also provided.
6. The following is a summary of Ms Winterbourne's submissions:
(a) The joined parties hold an estate in fee simple in possession and that estate is set out in the certificate of title under the TL Act. It cannot be anything other than land' to hold a certificate of title. The joined parties are entitled to receive the rents and profits from the land (for example, rent and royalties) which is one of the other criteria to be an 'owner'.
(b) The signature and consent of the joined parties, as 'owners of land', was required, in addition to the signature of Mr Dwyer on the application for Planning Approval. Without the signature of the joined parties, the application was not properly made and could not be determined by the respondent and the purported decision of the respondent cannot be reviewed by the Tribunal.
(c) The requirements for consent both before and after the Deemed Provisions commenced are comparable to the provisions of reg 4(2)(a) of the State Planning Commission Regulations 1962 (WA). In particular, the form states that 'the application will not proceed without the signature of the owner(s)'. Therefore, the present requirements for consent are preemptory and the withholding of consent would debar consideration of the application, consistent with the decision in Pacesetter.
(d) The owners (that is, the joined parties) of minerals on and under the surface of the land also should not be deprived of their capacity to object to the extraction of those minerals as proposed by the application. Any denial of the right of the joined parties to withhold their consent to the application, if that is what they chose to do, and especially in circumstances where the application proposes to extract and remove large volumes of clay from land over an area of about nine hectares to a depth of 10 to 12 metres clearly interferes with the joined parties' proprietary rights under their certificate of title and the Torrens system of land titles created under the TL Act.
(e) The joined parties are an owner for the purposes of the application both before and after the commencement of the Deemed Provisions. The joined parties were an owner of land within the meaning of TPS 6 before the Deemed Provisions commenced and, without their signature on the form, the application was incomplete and, therefore invalid.
(f) The definition of 'owner' under TPS 6 is broad in that it includes both legal and equitable interests and is inclusive. The joined parties meet two of the types of 'owner' specified in the list in the definition of 'owner' under TPS 6 as evidenced by the certificate of title. The joined parties hold an estate (one undivided half share) in fee simple in certain minerals in the land and that this, together with the other applicable certificates of title comprises a fee simple estate in the relevant land. Further, the joined parties hold their estate in fee simple 'in possession'. The term 'in possession' means that the estate must be immediate and not in remainder or reversion. There is nothing to suggest that the joined parties hold their estates in remainder or reversion.
(g) The definition of 'owner' under the Deemed Provisions is narrower than under TPS 6 because it removes references to equitable interests and in the case of freehold land expressly refers to the registered proprietor of land. Despite this, the joined parties' certificate of title clearly evidence that the joined parties are registered proprietors of land and come within the definition of 'owner' under the Deemed Provisions. In determining the contextual meaning of land for the purpose of the Deemed Provisions, the reference to 'registered proprietors' is a key textual indicator of the meaning of 'land' and its inclusion of the interests of the joined parties under their certificate of title.
(h) The joined parties are 'an owner in relation to land' because their interest is expressly included within the definition of land under the PD Act and also falls within the Tribunal's contextual discussion of the meaning of land in Adbooth Pty Ltd v City of Perth [2006] WASAT 343 and Glenbrook.
(i) The decision in Payne v Dwyer indicates that the joined parties would be entitled to a share of the rents or profits from any relevant minerals extracted from the land and, therefore, the joined parties also meet this limb of the definition of 'owner'.
(j) Even if the respondent formed the view that the signature of the joined parties was not required before the Deemed Provisions commenced (or did not turn its mind to that question), from 19 October 2015, the respondent was required to consider and determine the application in accordance with the Deemed Provisions. This requires a determination of whether the joined parties are an 'owner' within the meaning of the Deemed Provisions. The joined parties are the owner of the land within the meaning of the Deemed Provisions and without their signed consent the respondent could not have determined the application.
(k) Once the respondent determined the application (which occurred in July 2016), a defect could not be rectified by subsequently obtaining all owners' consent.
D. Summary of submissions for the applicant
7. Messrs Colvin and Flynn from Hotchkin Hanly Lawyers attended the hearing on 3 November 2016 on behalf of the applicant. They made submissions to the Tribunal on behalf of the applicant and also provided written submissions.
8. The following is a summary of Messrs Colvin's and Flynn's submissions:
(a) Subsequent to the application being made and lodged with the respondent, the Deemed Provisions came into effect and are part of each local planning scheme (s 257B of the PD Act).
(b) Under cl 1 of the Deemed Provisions, the 'owner' of land for the purposes of an application is now defined to mean: 'a person whose name is registered as a proprietor of the land'. Other persons are included as owner including a person who holds an interest as the purchaser under a contract to purchase the land.
(c) There is no definition of 'land' in the Deemed Provisions. However, pursuant to s 44 of the Interpretation Act words and expressions used in subsidiary legislation shall have the same respect and meanings as the written law under which the subsidiary legislation is made. The PD Act defines land to: 'include' (relevantly) land, tenements and hereditaments.
(d) Unless there is mining or removal of minerals there is no interference with the joined parties' interest. An activity to remove clay (the subject of the application) does not constitute mining. Further, the removal of minerals as part of an activity that is not the mining of those minerals (for example, extracting gravel) does not interfere with an interest of the kind held by the joined parties.
(e) The application form forms part of the Deemed Provisions and that the language of the form supports the construction of cl 62(2), namely that the application must be signed by the owner on which the proposed development is to be located, not all persons who may fall within the definition of owner.
(f) In the alternative if the joined parties are 'an owner' then cl 62 of the Deemed Provisions does not require that every party who may be defined as an owner, must sign the application. This is because cl 62(1)(b) provides that the application must be signed by 'the owner of the land on which the proposed development is to be located'. There is no express requirement that it must be signed by every person or entity that may fall within the definition of 'owner'.
(g) If the joined parties are an owner their interest as owner is not of a kind that could prevent the proposed development of clay extraction being undertaken. This is because the joined parties have no such ownership interest. An interpretation that would allow an owner in the position of the joined parties to prevent a party with the ownership right to undertake the relevant development (that is, clay extraction) should not be adopted because it would frustrate the purposes of the PD Act. The requirement for approval should not be the means by which a party can prevent development when it has no ownership right that allows it to prevent such development.
(h) In the alternative, if obtaining the signature of all owners is required by the Deemed Provisions then the question as to whether the absence of a signature of a person who is defined as an 'owner', when the application is made by another person who is also an 'owner', necessarily renders the application's invalidity open. In other words, the question is whether obtaining the signature of every person is a precondition to the existence of a power, or is a condition regulating the exercise of power: Yarri Mining. The correct approach is that set out in Tasker, referred to and adopted by the High Court in Project Blue Skyand in Forrest & Forrest Pty Ltd v Wilson[2016] WASCA 116.
(i) When considering whether invalidity was intended it is important to consider the role to be performed by the application and the consequences if all owners were required to sign in all cases before there could be a valid application. This would mean that anyone seeking approval would need to ensure that every 'owner' was included as a signatory given the fact that the term 'owner' is defined in inclusive terms this would be difficult. Further, if it was intended that the Deemed Provisions required each 'owner' to sign, say for the development approval to construct a dam on the land, the provisions would have made it clear.
(j) The issue of the requirement for the consent of an owner of land the subject of an application for Planning Approval was raised in Pacesetter. There the application was for the approval of a subdivision, which attached plans for subdivision. The area for which subdivision approval was sought included property which had vested in the Crown pursuant to s 286 of the Local Government Act 1995 (WA). Dealing with the land of the Crown would ultimately involve a sale to bring it within the provisions of the TL Act. It was held that the consent of the Crown, as the owner of the relevant property, was necessary as a precondition. In the present case, the application is made by the 'owner' of the land (Mr Dwyer) and nothing in Pacesetterdisplaces the position that the respondent is competent to hear the application by Mr Dwyer, a registered proprietor of the land, even if there is another party that has not signed, who claims to fall within the class of persons as 'owner'.
(k) Whilst the definitions in the decision in Australian Real Estate are different from those in the Deemed Provisions, that case recognises that not all interests in land held by a party within the definition of 'owner' are regarded as being necessary for the purposes of consent to a development application.
E. Summary of submissions from the respondent
9. Mr Alan Sherriden from the Shire attended the hearing on 3 November 2016.
10. He noted the respondent received a copy of legal advice provided to the applicant that Mr Dywer was the sole owner of Lot 7 for the purposes of the application.
11. Notwithstanding that advice, Mr Sherriden said the respondent sought its own independent legal advice regarding the property ownership matters relating to the application. He said that advice indicated Mr Dwyer was considered the sole registered proprietor and owner of Lot 7 for the purposes of the application and that Mr Payne and Razor Holdings Pty Ltd are registered proprietors for certain minerals but they are not the owners.
12. Mr Sherriden said the respondent sought Mr Payne's attitude towards consent to the application. Mr Payne said he told the respondent that it 'was up to them to apply the law'.
13. The respondent through its solicitors, McLeods, made the following written submissions in summary:
(a) The application for Planning Approval is now taken to have been made under the Regulations (rather than TPS 6) given the provision made in reg 81.
(b) All coowners are regarded by the common law as entitled to use each and every part of the land so long as they do not exclude other coowners from the land:Luke v Luke (1936) 36 SR (NSW) 310. Therefore, each coowner has a right to exploit or develop the land provided it does not destroy or substantially injure the property and that right is not dependent upon the agreement or consent of the other coowners. Finally, it is not apparent from the Regulations that that it was intended to alter this common law position.
(c) The application is not invalid or otherwise unable to be validly approved by reason of it not being signed by the joined parties. This is because:
(i) the application was only required to be signed by 'the owner of the land on which the proposed development is to be located' (cl 2(1)(b) of the Deemed Provisions). The joined parties were not required to sign as they are the owner of certain minerals in the land and not the land on which the proposed development is to be located, which clearly is a reference to the surface of the land in the ordinary sense;
(ii) the requirement in a prescribed form for a signature of an owner does not in itself amount to a mandatory requirement: Prime Holdings;
(iii) the requirement in cl 62(1)(b), read in conjunction with the definition of owner in cl 1 is properly interpreted as referring only to the person whose name is registered as a proprietor of the land (namely the applicant) and not to persons registered as proprietor of an estate in hereditaments in the land (namely the joined parties), notwithstanding that the definition of land includes hereditaments. This is supported by the case of Australian Real Estate and Owners Strata Plan No 50411;
(iv) that conclusion follows on a literal construction of the relevant provisions read in context, however a purposive construction (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404) also leads to the same conclusion as the contrary interpretation proposed by the joined parties lead to absurd results and tend to frustrate objects of the PD Act which are to 'provide for an efficient and effective land use planning system in the State' and to 'promote the sustainable use and development of land in the State'; and
(v) in the alternative, if the joined parties are an owner of the land on which the proposed development is to be located by reason of the estate in certain minerals in the land, then cl 62(1)(b) of the Deemed Provisions does not require the signature of all owners of the land.
(d) The PD Act and TPS 6 are not intended to regulate private rights of ownership, but rather are concerned with the development and use of land and the proper control of its impact upon amenity. Further, approval granted under a planning scheme merely determines whether the proposed development is permissible under the Scheme and does not in itself legally entitle an owner to proceed with the development. This is because other consents, including the consent of other persons holding some interest or estate in the relevant land or a hereditament, may be required prior to the owner lawfully proceeding with the development: The Owners Strata Plan No 37762 at [38].
(e) If a proposed development would infringe on the proprietary rights of an owner of an interest in land such as a hereditament, then it would be open to the owner of that interest to pursue a remedy in property law. It is not the purpose of planning law to regulate or protect individual property rights.
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