CANAL ROCKS PTY LTD and SHIRE OF BUSSELTON
[2005] WASAT 56
•26 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT :TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: CANAL ROCKS PTY LTD and SHIRE OF BUSSELTON [2005] WASAT 56
MEMBER: DEPUTY PRESIDENT CHANEY
HEARD: 11 FEBRUARY 2005
DELIVERED : 26 APRIL 2005
FILE NO/S: RD 266 of 2003
BETWEEN: CANAL ROCKS PTY LTD
Appellant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Town Planning - Construction of scheme - Planning consent - Whether required under District Planning Scheme - Single residential development - Reserved land - Inconsistency with scheme provisions - Preliminary issue in proceedings
Legislation:
Interpretation Act 1984, s 19
Town Planning and Development Act 1928
Result:
Application for planning consent required
Category: B
Representation:
Counsel:
Appellant: P McQueen
Respondent: LA Tsaknis
Solicitors:
Appellant: Phillips Fox
Respondent:
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION
DEPUTY PRESIDENT CHANEY:
Introduction
In May 2003 the appellant applied for approval pursuant to the Busselton Shire Council District Planning Scheme No 20 ("DPS20") for the erection of a single dwelling on a portion of its land at Sussex Location 413 Smiths Beach, Yallingup. The application was not dealt with within 60 days of its lodgement, and accordingly was deemed refused by the operation of cl 15 of DPS20. In October 2003, a notice of appeal was lodged with the Town Planning Appeal Tribunal, whose functions have now been assumed by this Tribunal, against that deemed refusal. The notice of appeal identifies the application as having been made pursuant to cl 18(1)(e) of part 3 of DPS20. The grounds of appeal identify a number of respects in which it is asserted that the proposed development is consistent with orderly and proper planning, relevant planning policies and relevant provisions of DPS20.
A statement by respondent was lodged in July 2004. The respondent contends that its refusal is supported by a consideration of matters prescribed by DPS20 for consideration in relation to development applications. It also asserts non-compliance or inconsistency with specific provisions of DPS20 and the Leeuwin‑Naturaliste Ridge Statement of Planning Policy and seeks dismissal of the appeal.
Following a mediation conducted by the Town Planning Appeal Tribunal, the appellant identified a preliminary issue which it contends is capable of disposing of the appeal in its favour. A direction was made by the Town Planning Appeal Tribunal for the determination of the preliminary point which it described as "the interpretation of the application of cl 16" of DPS20. The substance of the question raised is whether, in the circumstances of the appellant's proposed development, planning consent is required at all in view of the provisions of cl 16.
Clause 16 of DPS20
Clause 16 was inserted in DPS20 by amendment 53 published on 18 July 2003. It provides:
"Notwithstanding any other provision of the Scheme, the erection on a lot of single house including any extension, ancillary outbuildings and swimming pool does not require planning consent, except where -
(a)the proposal requires the exercise of discretion by Council under the Scheme to vary the provisions of the Residential Design Codes of Western Australia;
(b)the development is located in a Heritage Precinct designated under the Scheme;
(c)the development is located in a Special Character area designated under the Scheme;
(d)the development is inconsistent with any other provision of the Scheme;
(e)the development is inconsistent with any provision of a Scheme policy; or
(f)the development is inconsistent with any Development Guide Plan, Subdivision Guide Plan, Structure Plan, Design Guidelines or any other plan or policy adopted by Council."
The appellant's position is that the proposed development does not fall within any of the exceptions contained in subpars (a) to (f) of cl 16, and accordingly no planning consent is required.
The presence of the opening words "notwithstanding any other provision of the Scheme" when read with the exception of subpar (d) give rise to a difficulty in construing the meaning and effect of cl 16. The difficulty can be illustrated by reference to cl 87. That clause provides:
"87. SINGLE HOUSE APPROVALS - CONSERVATION, and RURAL LANDSCAPE ZONES
Notwithstanding any other provision of the Scheme, an application for Planning Consent is required for the development of a single house on a lot in the Conservation, Rural Landscape and Bushland Protection Zones. When a proposal the subject of an application under this clause is consistent with the provisions of the Scheme and pursuant policy Planning Consent will not be unreasonably withheld."
It can be noted that both cl 16 and cl 87 open with the words "Notwithstanding any other provision of the Scheme". On their plain reading, the opening words of cl 16 suggest that notwithstanding the requirement in cl 87, no planning consent is required for a single house development in a Conservation, Bushland Protection or Rural Landscape Zone, except where the development falls within one of the 6 exceptions. The appellant contends, that cl 87 is an example of an exception which would come within subcl (d) of cl 16. That is because, the appellant contends it expressly overrides cl 16. The respondent's position is that the question of whether a development is inconsistent with any provision of the scheme requires an assessment of the proposal against all provisions of the scheme to determine whether there is any inconsistency, and subcl (d) is not confined only to those circumstances where the inconsistency is apparent on the face of the schemes provisions.
A second difficulty with the drafting of cl 16 is if, as the respondent contends, a development application requires detailed analysis before it can be determined whether or not it is inconsistent with any provision of DPS20, any scheme policy or any guidelines or plan referred to in subcl (f), the question of whether or not planning consent is required can only be determined after analysis of an application. For a proponent of a development, it is impossible to know whether to lodge an application for planning consent where the question of inconsistency is not ascertainable by the express provisions of the scheme.
In my view, the drafting of cl 16 is such as to render it's meaning ambiguous or obscure, or in its context, particularly when read with cl 87, it leads to a result that is manifestly absurd. Accordingly, pursuant to s 19 of the Interpretation Act 1984, it is open to have regard to the scheme amendment report, which led to the introduction of cl 16, for the purpose of ascertaining the proper construction of the provision.
Scheme Amendment Report
To understand the Scheme Amendment Report, it is necessary first to understand the broad scheme of the DPS20. Land within the Scheme Area is divided into Zones and Areas. There are 8 designated areas delineated and coloured in the scheme map. Those areas are "Landscape Value", "Coastal Management", "Port Geographe Development", "Development Investigation", "Wetland", "Special Character", "Airport Protection", and "Special Provision". In addition, the scheme map designates certain land as "Scheme Reserves", being land reserved under the scheme for the purposes shown on the map.
It is common ground between the parties that the land subject to this appeal is included within a "Development Investigation" area and a "Landscape Value" area. Part of the site, being the part upon which the development is proposed is reserved for recreation.
The introduction to the Scheme Amendment Report, in dealing with the adoption of cl 16, says the following:
"The first provision relates to the need for planning consent to be granted for a single house and ancillary development in all 'area' designations pursuant to the scheme mapping (ie "Landscape Value" area, "Wetland" area, "Coastal Management" area etc.). The requirement in not warranted in all area designations, as it achieves no further benefit for the amenity and character of these areas. Furthermore, experience tells that most development applications are found to comply with the relevant provisions of the scheme and pursuant policy and are reasonably held up among other development applications. They can be adequately addressed by the building application process."
The scheme amendment report then explains:
"The need for planning consent for a single house in all areas designations has only recently been identified as an unnecessary burden to both proponents and Council. The problem lies within two sections of the Scheme. The first is Clause 54, which requires planning consent to be granted for single houses and ancillary development on land included in the 'Residential' Zone where identified within an area designation. The second is Part 4, which contains the specific provisions that relate to each of the area designations. These provisions generally require that no person shall commence development within these areas without the consent of Council. The "consent of Council" has been interpreted as being planning consent and all single houses and ancillary development have therefore required the submission of a development application."
Under the heading "Justification", the scheme amendment report states:
"The current need for a development application for a single house in any area designation is not warranted. An assessment and formal issue of planning consent achieves little, especially given that the majority of applications comply with the provisions of the Scheme and pursuant policy. Where applications do not comply conditions are imposed on planning consent, which usually govern matters such as building height, colours, materials etc.
It is considered that a better approach is to consider single houses through a building licence application. Where proposals are inconsistent with the Scheme or pursuant policy, a development application is then to be required. This will require planning officers to check incoming building licence applications within area designations, however will remove the need to issue formal planning consent.
There are some instances where a single house and ancillary development will still require planning consent. Most notably, planning consent will remain a requirement for single houses and ancillary development in any of the 'Special Character' Areas pursuant to the Schema mapping. This is necessary to ensure that a detailed assessment is carried out to ensure compliance with the relevant provisions of the Scheme and pursuant policy. The provisions that relate to 'Special Character' Areas are considered too extraordinary to be assessed under a building licence only.
Other instances where an application will be required include -
•where proposals require discretion to be exercised under the Residential Design Codes of Western Australia;
•where development is located within a Heritage Precinct; or
•where development is inconsistent with any plan adopted by Council (i.e. including a Development Guide Plan, Subdivision Guide Plan, Structure Plan, Design Guidelines etc)."
It is apparent form the Scheme Amendment Report that what was contemplated by the amendment was that, upon lodgement of a building licence application for a single residence, Council would make an assessment of compliance with DPS20 and policies made pursuant to it, and if an issue of inconsistency arose on that assessment, the proponent would be advised to make application for planning consent. According to Mr Aaron Bell, a planner employed by the respondent, that practice has been applied by the respondent since the gazettal of the Amendment.
The proper construction of cl 16
The respondent submitted that "Subclause [sic] 16 distinguishes between the circumstances where planning consent is always required (Subclauses 16(a)(b) and (c)), and the circumstances where planing consent may be required (Subclauses 16(d), (e) and (f)). That submission is based on a view expressed by Mr Bell in his affidavits of 9 February 2005 where he spoke of a "discretion" being exercised "as to whether planning approval is required under clauses 16(d), (e) or (f) based on an initial assessment of whether the proposal could be inconsistent with another Scheme provision, a Scheme policy, or design guidelines or similar." That submission cannot be sustained on the plain wording of the clause. If a development is inconsistent with the provision of the Scheme, a Scheme policy or some applicable plan or guideline, then the exception to cl 16 applies, and there is no discretion as to whether or not planning consent is required. Clause 16 makes no distinction between its six subclauses to the effect that planning approval is required under some subclauses but may not be under others.
In my view, the proper construction of cl 16 is that where there is an inconsistency between a single house development proposal and another provision of the Scheme, a scheme policy or a relevant plan or guideline, there is no discretion on the part of the respondent as to whether planning consent is required. Clause 16 makes it clear that, in those circumstances planning consent is required, and thus an application for planning consent must be required. Where a discretion arises is in the consideration of that application in the light of the provisions of DPS20 and other relevant planning considerations.
The appellant argued that subcl 16(d) only related to provisions of the scheme where an inconsistency could be identified simply by comparing the terms of cl 16 with the terms of the provision in question. In other words the inconsistency must be apparent on the face of the scheme. By way of illustration, the appellant points to cl 87 as an example of a clause which, if applicable to a particular development application, would override cl 16 because it expressly requires an application for planning consent for a single residence in the areas to which it refers. In part that argument was supported by a submission that cl 87 was included in the scheme after cl 16 was adopted, and as a response to it, so that it expressly overrides cl 16.
I do not accept that submission. First, although cl 87 was amended by amendment 42 on 12 August 2003 (being after cl 16 was introduced), the effect of the amendment was merely to add the reference to Bushland Protection Zones which, prior to that amendment, were not part of DPS20. Clause 87 was not introduced, or even amended as a response to the introduction of cl 16. Second, cl 87 makes no reference to cl 16. It could only be said to expressly override cl 16 by the use of the words "notwithstanding any other provisions of the Scheme", words which were part of cl 87 (which was formerly cl 86) prior to the introduction of cl 16. I have already noted that the fact that cl 16 opens with those same words confuses the interrelationship between the two clauses. In my view there is no basis to elevate cl 87 to the status of a clause expressly inconsistent with cl 16 and thus caught by subcl 16(d) in preference to other clauses of the scheme with which a particular development application may be inconsistent.
Subclauses 16(d) and (e) are not to be read down as a reference only to those provisions of a scheme or policy which expressly override cl 16. The words "Notwithstanding any other provision in the scheme" at the commencement of cl 16 should be read down, if they can sensibly have any meaning, to being a reference to other provisions which deal with the formal requirement for consent to development, such as cl 21(2)(b). Where a particular single residential development has features which are inconsistent with a requirement of the scheme relating to development within the area concerned, an exception to cl 16 arises, and planning consent is required.
Is planning consent required in this case?
The appellant contends that the proposed development is consistent with all other provisions of DPS20 and with all applicable Scheme policies and that no plans or guidelines of the nature described in subparagraph (f) are applicable to the site. Accordingly, the appellant contends that the exceptions to cl 16 are not enlivened and no planning consent is necessary.
That contention is supported by an opinion expressed by Mr Michael William Swift, a consultant planner and formerly a Chief Executive Officer of the respondent, in an affidavit filed in the proceedings.
The respondents' contention is that the proposal is inconsistent with a number of scheme provisions. It is asserted that the proposal is inconsistent with cl 18 dealing with the use of reserved land, cl 19(1) which requires planning consent for the use and development of any building or structure on a scheme reserve. The respondent also contends that the proposal may not comply with cl 25(10) which provides "a dwelling house may be erected on an existing allotment of land within a Development Investigation Area where the Council is satisfied that the siting of the dwelling house is unlikely to prejudice the future development of the land or other land in the vicinity." It might be argued that the erection of a dwelling house within a Development Investigation Area where Council has not considered the matter, and thus not reached the required satisfaction, is inconsistent with that provision. The respondent also asserts inconsistency with cl 27 which stipulate restrictions on the respondent's ability to give consent within the Landscape Value Area unless certain matters have been considered by the Council and certain opinions formed.
Furthermore, the respondent asserts that there are inconsistencies with certain of its policies and the Leeuwin‑Naturaliste Ridge Statement of Planning Policy, compliance with which is, by cl 4(j) of DPS20 made an object of DPS20.
It is not possible, because the parties have not sought to produce evidence on the points, to resolve the question of whether or not the inconsistencies asserted by the respondent can be made out. That can only be done after a full assessment of the details and merits of the application.
Conclusion
For the foregoing reasons, it cannot be said that this is a case in which no planning consent is required by virtue of cl 16 of DPS20. It is possible that, upon a full review of the development proposal, the proposal may be found to be consistent with DPS20 and all relevant plans, guidelines and policies, but that question cannot be determined simply by reference to the terms of DPS20 and relevant policies. On the assumption that the appellant wishes to pursue its application for approval of the proposed development, the matter should now proceed to a full hearing on the merits.
I certify that this and the preceding 10 pages comprise the reasons for decision of the State Administrative Tribunal.
______________
J CHANEY
Deputy President
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