CANAL ROCKS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2010] WASAT 62

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CANAL ROCKS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 62

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 APRIL 2010

FILE NO/S: DR 33 of 2010

BETWEEN: CANAL ROCKS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Development Guide Plan Preliminary issue Jurisdiction Whether right of review exists 'Deemed refusal' Whether there is a 'deemed refusal' of the application conferring a right to seek review

Legislation:

Interpretation Act 1984 (WA), s 18, s 19(1)(b)(i), s 19(1), s 19(2), s 19(2)(a), s 32
Planning and Development Act 2005 (WA), s 251(1), s 253, s 253(1), s 253(2), s 253(2)(a), s 253(2)(b), s 253(2)(c), s 253(3), Pt 10
Shire of Busselton Town Planning Scheme No 20, cl 2, cl 4(b), cl 15(3), cl 25(2), cl 25(5), cl 25(6), cl 25(7), cl 25(8), cl 96, cl 96(2)

Result:

Tribunal has jurisdiction to entertain this proceeding under cl 96(2) of the Shire of Busselton Town Planning Scheme No 20

Category: B

Representation:

Counsel:

Applicant: Mr MJ Hardy
Respondent: Ms CA Ide

Solicitors:

Applicant: Hardy Bowen
Respondent: State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Canal Rocks Pty Ltd sought review by the Tribunal of the 'deemed refusal' by the Western Australian Planning Commission to adopt a Development Guide Plan under the Shire of Busselton Town Planning Scheme No 20. The Western Australian Planning Commission argued that the Tribunal does not have jurisdiction to entertain the proceeding, because Canal Rocks Pty Ltd does not have a right to seek review in circumstances where the Western Australian Planning Commission has not made a decision as to whether or not to adopt the Plan.
The Tribunal determined that it has jurisdiction to entertain this proceeding, although not on the basis originally nominated by Canal Rocks Pty Ltd. Canal Rocks Pty Ltd was not authorised to give a notice of default to the Western Australian Planning Commission under s 253(2) of the Planning and Development Act 2005 (WA) and therefore did not have a right to seek review under s 253(3) of the Act. However, Canal Rocks Pty Ltd has a right to seek review under cl 96(2) of the Shire of Busselton Town Planning Scheme No 20, because its request for approval of the Development Guide Plan is deemed, by cl 15(3) of the Scheme, to have been refused.

Introduction

The land known as Location 413 Smiths Beach Road, Yallingup (Location 413) is owned by Canal Rocks Pty Ltd (Canal Rocks) and is located within the district of the Shire of Busselton (Shire or Council). Location 413 is identified on the Scheme Map under the Shire of Busselton Town Planning Scheme No 20 (TPS 20 or Scheme) as being within a Development Investigation Area. Clause 25(2) of the Scheme states that, subject to an exception that is not relevant, where land is identified on the Scheme Map as being within a Development Investigation Area:
The Council shall require … the preparation of a comprehensive Development Guide Plan for the land and the endorsement of the Plan by it and the WA Planning Commission prior to approving any subdivision or development of the land.
Clause 25(5) of TPS 20 authorises the Council to 'refuse or adopt the Development Guide Plan with or without modifications and subject to such conditions as thinks fit'. Clause 25(6) of TPS 20 states that the Council 'shall, following its adoption of the Development Guide Plan, cause the Plan to be forwarded to the Western Australian Planning Commission, together with any comments the Council may wish to make on the Plan'. Clause 25(7) of the Scheme authorises the Western Australian Planning Commission (Commission) to 'refuse or adopt, with or without modification, the Development Guide Plan so forwarded to it by the Council subject to any conditions that the Commission thinks fit'. Clause 25(8) of TPS 20 states as follows:
The Development Guide Plan so adopted shall be endorsed by the Council and the Western Australian Planning Commission and shall have no effect until such endorsements are made thereon. The subdivision or development of the land the subject of the Development Guide Plan shall be in accordance with the endorsed Development Guide Plan, with the exception that building envelopes may be modified/relocated by the Council as part of granting planning consent for development.
On 23 October 2009, the Council adopted the Smiths Beach Development Guide Plan October 2009 Location 413 Smiths Beach (DGP) under cl 25(5) of TPS 20. On 2 November 2009, the Shire forwarded the DGP to the Commission under cl 25(6) of TPS 20. The Commission has not yet made a decision in respect of the DGP under cl 25(7) of TPS 20.
On 28 January 2010, Canal Rocks purported to issue a notice of default to the Commission in respect of the Commission's consideration of the DGP. Canal Rocks asserted that the Commission had 60 days in which to make a decision in respect of the DGP.
On 29 January 2010, Canal Rocks purported to commence this proceeding under s 253(3) of the Planning and Development Act 2005 (WA) (PD Act) for review of the Commission's 'deemed refusal' of the DGP.
The Commission has raised a preliminary issue as to whether the Tribunal has jurisdiction to entertain this proceeding. This issue turns on whether there has been a 'deemed refusal' in respect of the application for approval of the DGP that gives rise to a right to seek review of that decision by the Tribunal under either s 253(3) of the PD Act or cl 96(2) of the Scheme.

Does the Tribunal have jurisdiction in this matter?

Canal Rocks contended that the Tribunal has jurisdiction to entertain this proceeding under each of two different provisions. First, Canal Rocks argued that the Tribunal has jurisdiction under s 253(3) of the PD Act, as Canal Rocks has given a notice of default to the Commission under s 253(2) of the PD Act. Secondly, Canal Rocks argued that the Tribunal has jurisdiction under cl 96(2) of TPS 20, because Canal Rocks' request for approval of the DGP is deemed to have been refused under cl 15(3) of the Scheme.

Is there jurisdiction under s 253(3) of the PD Act?

Section 253 of the PD Act states as follows:
(1)In this section
applicant includes a person making a request under section 144(1), 145(1) or 151(1);
decision period means
(a)in the case of an application for approval of a plan of subdivision, the period of 90 days specified in section 143(2) or any longer period after that day as may be agreed between the Commission and the applicant under section 143(2);
(b)in the case of an application for endorsement of approval on a diagram or plan of survey, the period of 30 days specified in section 145(5) or any longer period after that day as may be agreed between the Commission and the applicant under section 145(5); and
(c)in the case of any other application, or a request, referred to in subsection (2), the period of 60 days from the day on which the application or request was made, or any longer period after that day as may be agreed in writing between the responsible authority and the applicant or person so requesting.
(2)If at any time after the end of the decision period the responsible authority has not
(a)approved, or refused to approve, an application referred to in section 251(1);
(b)given notice of a decision on the request made under section 144(1) or 151(1); or
(c)endorsed, or refused to endorse, a diagram or plan of survey under section 145(4),
the applicant may give written notice of default to the responsible authority.
(3)Where a notice of default is given to a responsible authority under subsection (2), the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, as if the responsible authority had refused to approve the application, plan or diagram, or had refused to alter or revoke the condition, as the case requires, on the day on which the notice of default was given to the responsible authority.
An applicant may only apply to the Tribunal under s 253(3) of the PD Act for review of a deemed decision to refuse to approve an application, plan or diagram, or to refuse to alter or revoke a condition, '[w]here a notice of default is given to a responsible authority under subsection (2) …'. A notice of default can only be given to a responsible authority under s 253(2) of the PD Act in the circumstances referred to in that subsection.
Canal Rocks presented essentially two arguments as to why it could give a notice of default to the Commission under s 253(2) of the PD Act so as to enable it to seek review of the deemed refusal of the DGP by the Commission under s 253(3) of the PD Act. First, Canal Rocks submitted that the application for approval of the DGP is an application referred to in s 251(1) of the PD Act, and that, because the Commission has not approved, or refused to approve, that application, Canal Rocks could give a notice of default to the Commission under para (a) of s 253(2) of the PD Act. Section 251(1) of the PD Act states as follows:
An applicant may apply to the State Administrative Tribunal Act for a review, in accordance with this Part, of a decision of the Commission to refuse to approve any plan, application for title, transfer, conveyance, lease, licence to use and occupy, or mortgage, in respect of which an application for approval was made to the Commission. (Emphasis added)
Canal Rocks submitted that a Development Guide Plan is a 'plan … in respect of which an application for approval was made to the Commission' within the meaning of s 251(1) of the PD Act. The meaning of the term 'plan' in s 251(1) of the PD Act is ambiguous. Section 32 of the Interpretation Act 1984 (WA) (Interpretation Act) states that ' … a heading to a section … of a written law … shall be taken not to be part of the written law'. However, s 19(1)(b)(i) of the Interpretation Act enables consideration to be given to 'any material not forming part of the written law [that] is capable of assisting in the ascertainment of the meaning of [a provision] … to determine the meaning of the provision when the provision is ambiguous …'. Section 19(2) of the Interpretation Act states that, without limiting the generality of s 19(1) of the Act, 'the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes … all matters not forming part of the written law that are set out in the document containing the text of the written law as printed by the Government Printer' (s 19(2)(a) of the Interpretation Act).
The heading of s 251 of the PD Act is 'Application for review of certain decisions under Part 10'. The only types of plans that are regulated by Pt 10 of the PD Act are plans of subdivision and plans of survey. Furthermore, a decision by the Commission to refuse or adopt a Development Guide Plan forwarded to it by the Council under cl 25(6) of TPS 20 is not a decision made under Pt 10 of the PD Act. Rather, it is a decision made under cl 25(7) of the Scheme.
Canal Rocks submitted that a Development Guide Plan is 'a precursor to subdivision and although not specifically mentioned in Part 10 of the PD Act (nor, by extension, in s 251) ought to be properly considered as falling within the ambit of matters affected by that Part and therefore amenable to review'. However, a Development Guide Plan is not merely 'a precursor to subdivision'; a Development Guide Plan has an entirely different planning character and function to a subdivision application. A Development Guide Plan is a strategic planning instrument intended to guide the formulation and assessment of planning applications, whereas a subdivision application is a type of planning application. Furthermore, a Development Guide Plan is neither expressly nor implicitly contemplated by Pt 10 of the PD Act. Rather, it is an instrument provided for in TPS 20.
The DGP is, therefore, not a 'plan … in respect of which an application for approval was made to the Commission' within the meaning of s 251(1) of the PD Act. The Commission's failure to make a decision in respect of the DGP is, consequently, not a circumstance referred to in s 253(2) of the PD Act.
Secondly, Canal Rocks relied on the definition of 'applicant' in s 253(1) of the PD Act, which is expressed in inclusive, rather than exhaustive, terms:
applicant includes a person making a request under section 144(1), 145(1) or 151(1).
Canal Rocks contrasted the use of the word 'includes' in the definition of 'applicant' with the use of the word 'means' in the definition of 'decision period' in s 253(1) of the PD Act, and submitted that:
The relevance of this approach to broadening who may be an 'applicant' for the purposes of s 253 of the PD Act is found in s 253(1)(c) by reference to the third category (ie a category other than plans of subdivision or diagrams or plans of survey), being a reference to 'any other application'.
However, the words 'any other application' in para (c) of the definition of 'decision period' in s 253(1) of the PD Act are qualified by the words that follow, namely ' … referred to in subsection (2)':
in the case of any other application, or a request, referred to in subsection (2) … '. (Emphasis added)
For reasons stated earlier, an application for approval of a Development Guide Plan is not an 'application … referred to in subsection (2)'. Read in the context of s 253 of the PD Act as a whole, it is apparent that while 'applicant' is not limited under the definition of that term in s 253(1) to 'a person who has made a request under s 144(1), s 145(1) or s 151(1) [of the PD Act]', it is, nevertheless, limited to a person making a request under one of those sections (referred to in s 253(2)(b) and s 253(2)(c)) or a person who has made an application under s 251(1) of the PD Act (referred to in s 253(2)(a)). For reasons stated earlier, an applicant for approval of a Development Guide Plan under TPS 20 is not a person who has made an application under s 251(1) of the PD Act.
Consequently, Canal Rocks could not give a notice of default to the Commission under s 253(2) of the PD Act in the circumstances of this case and does not have a right to seek review of the Commission's 'deemed refusal' to adopt the DGP under s 253(3) of the PD Act.

Is there jurisdiction under the Scheme?

Canal Rocks also argued that the Tribunal has jurisdiction to entertain this proceeding under cl 96(2) of the Scheme by virtue of the deemed refusal of the application for approval of the DGP under cl 15(3) of the Scheme.
Clause 96 of TPS 20 states as follows:
(1)A person who is an applicant for the Council's approval for consent under the Scheme, and who is aggrieved by a decision of the Council to refuse that person's application or to attach conditions to an approval of that person's application under the Scheme, may [seek review] under, and in accordance with, [Pt 14 of the PD Act]. In this Clause, 'applicant' includes the owner of land in respect to which an application was made.
(2)Sub-clause (1) above applies to an application for approval of a Development Guide Plan or Structure Plan pursuant to Clauses 25 and 78 in the same manner as it applies to applications for Council's approval for consent and may be applied to a determination of the Western Australian Planning Commission made pursuant to Clause[s] 25 and 78.
Clause 15(3) of the Scheme states as follows:
A request for approval of a Development Guide Plan or Structure Plan prepared pursuant to Clause[s] 25 and 78 shall be deemed refused where a decision in respect of that application is not conveyed to the applicant by Council within 180 days of receipt of it by the Council, or within such further time as agreed between the applicant and the Council.
Canal Rocks submitted that cl 15(3) of TPS 20:
does not constrain 'approval' of a DGP to the decision of the Shire alone. Clause 96(2) extends review rights to a determination of the [Commission]. It is for the Council of the Shire to forward the DGP to the [Commission] pursuant to clause 25(6) of the Scheme and the [Commission] is given power to deal with the DGP pursuant to cl 25(7) of the Scheme. Following adoption of the DGP by the [Commission], the DGP is endorsed by the Council of the Shire and the [Commission], by clause 25(8) of the Scheme. That is an holistic process which is in the purview of the Shire, not [Canal Rocks]. The deeming of refusal created by clause 15(3) refers to 'a decision' in respect of the application. The 'decision' can only be properly construed as a decision to adopt and endorse a DGP by both the Shire and the [Commission] pursuant to clause 25(8) of the Scheme.
In response, the Commission submitted that:
Clause 15(3) of TPS 20 refers to the determination of DGPs by the Shire only. All other provisions within clause 15 refer to matters which are determined by the Shire. Further, the 180 day time period can be extended by agreement between the Shire and the Applicant. Tellingly, there is no reference to the [Commission]. One would expect such a reference if the provision applied to the [Commission]'s consideration of the DGP. This supports the [Commission]'s construction, which is to the effect that clause 15 is concerned with decisions made by the Shire rather than the [Commission]. Clause 15(3) therefore does not operate as a deeming provision in the instant case.
Canal Rocks is correct. The words '[a] request for approval of a Development Guide Plan' and 'a decision in respect of that application' in cl 15(3) of TPS 20 do not merely refer to the adoption of a Development Guide Plan by the Council. Adoption of a Development Guide Plan by the Council is necessary, but not sufficient, for approval of a Development Guide Plan. Clause 25(2) of TPS 20 states that, where land is identified on the Scheme Map as being within a Development Investigation Area, 'the Council shall require … the preparation of a comprehensive Development Guide Plan for the land and the endorsement of the Plan by it and the WA Planning Commission … ' (emphasis added). Furthermore, cl 25(8) of TPS 20 provides that a Development Guide Plan has no effect until it is adopted by both the Council and the Commission and endorsed by both the Council and the Commission. Therefore, 'approval of a Development Guide Plan' within the meaning of cl 15(3) of TPS 20 requires adoption of the plan by both the Council and the Commission and endorsement of the plan by each of these authorities.
Contrary to the Commission's submission, cl 15(3) of TPS 20 does not refer to the determination of Development Guide Plans by the Shire only. Rather, it refers to 'approval of a Development Guide Plan' and 'a decision in respect of that application'. While it is correct that the other provisions within cl 15 of TPS 20 refer to matters which are determined by the Shire only, an application for the approval of a Development Guide Plan or a Structure Plan is unique amongst applications made under the Scheme, because it requires approval by both the Council and the Commission. It is also correct that, under cl 15(3) of the Scheme, the 180 day determination period can be extended by agreement between the Shire and an applicant, while the Commission has no express role in making any such agreement. However, the absence of reference to the Commission is explicable, because the Shire is 'the responsible authority for implementing the Scheme' (cl 2 of TPS 20) and is the authority charged by cl 25(2) of the Scheme with requiring the preparation of a comprehensive Development Guide Plan for land within a Development Investigation Area and the endorsement of the Plan by it and the Commission. As the Shire is the responsible authority for implementing the Scheme and, in particular, for ensuring the preparation and endorsement of a Development Guide Plan by it and the Commission prior to approving any subdivision or development of the land, it is understandable that the Scheme nominates the Council as the authority that can agree with an applicant to extend the period for approval of a Development Guide Plan.

Clause 15(3) of TPS 20 refers to '[a] request for approval of a Development Guide Plan' and to 'a decision in respect of that application'. A request for approval of a Development Guide Plan is not directed to the Council alone and the Council does not have authority to decide that application. Rather, a request for approval of a Development Guide Plan is directed to both the Council and the Commission to each adopt and endorse the Development Guide Plan. While the adoption of a Development Guide Plan by the Council is a necessary step for approval of the Development Guide Plan under the Scheme, it is not, in itself, 'approval of a Development Guide Plan' or 'a decision in respect of that application' within the meaning of cl 15(3) of TPS 20. Approval of a Development Guide Plan only occurs under the Scheme where both the Council and the Commission have independently adopted the Development Guide Plan under cl 25(5) and cl 25(7) of TPS 20 and have then each endorsed the Plan under cl 25(8) of TPS 20.
There is further textual support for this conclusion when the language of cl 15(3) of the Scheme is contrasted with cl 96(2) of the Scheme. Whereas, in conferring a right to seek review of a deemed refusal, cl 15(3) of the Scheme refers to 'a decision in respect of [the] application' 'for approval of a Development Guide Plan prepared pursuant to cl 25', in conferring a right to seek review of an actual decision, cl 96(2) states that the review right 'may be applied to a determination of the Western Australian Planning Commission made pursuant to [Clause] 25' (emphasis added). While cl 96(2) of the Scheme clearly confers a right to seek review of separate determinations of the Council and the Commission not to adopt a Development Guide Plan under cl 25 of TPS 20, cl 15(3) is not concerned with separate determinations by these authorities under cl 25, but rather, with 'a decision in respect of [the] application' 'for approval of a Development Guide Plan' (emphasis added), that is a singular decision that is only made once both the Council and the Commission have independently adopted the Development Guide Plan and then both endorsed it.
A purposive interpretation of the Scheme also supports Canal Rocks' contention that it has a right to seek review of the deemed refusal of the DGP in the circumstances of this case. Section 18 of the Interpretation Act states that:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
The objects of TPS 20 include:
to provide a comprehensive planning instrument for the Shire that is clear and explicit but which provides flexibility in its application. (cl 4(b))
As noted earlier, cl 96(2) of TPS 20 confers rights of review in respect of the refusal by the Council to adopt a Development Guide Plan under cl 25(5) of TPS 20 and in respect of the refusal by the Commission to adopt a Development Guide Plan under cl 25(7) of TPS 20. The interpretation of cl 15(3) of the Scheme under which there is a right to seek review of a deemed refusal in circumstances where a Development Guide Plan has been adopted by the Council but not by the Commission within 180 days of receipt of the application by the Council, or within such further time as agreed between the applicant and the Council, promotes the object underlying the Scheme of providing a comprehensive planning instrument incorporating, among other things, rights of review. In contrast, the interpretation of cl 15(3) contended for by the Commission, under which an applicant would not have a right to seek review of a deemed refusal where the Commission has failed to make any determination in relation to whether to adopt a Development Guide Plan forwarded to it by the Council, would not promote the object of the Scheme.
The Tribunal, therefore, has jurisdiction to entertain this proceeding under cl 96(2) of TPS 20, because Canal Rocks' request for approval of the DGP is deemed to have been refused under cl 15(3) of the Scheme.

Conclusion

Canal Rocks does not have a right to seek review, in accordance with s 253(3) of the PD Act, of the deemed refusal by the Commission to adopt the DGP under cl 25(7) of TPS 20. This is because Canal Rocks was not authorised to give a notice of default to the Commission under s 253(2) of the PD Act where the Commission has not made a decision as to whether or not to adopt the DGP. A failure by the Commission to determine whether or not to adopt a Development Guide Plan is not one of the circumstances contemplated in s 253(2) of the PD Act in which a notice of default may be given.
However, Canal Rocks has a right to seek review, under cl 96(2) of TPS 20, because its request for approval of the DGP is deemed, by cl 15(3) of TPS 20, to have been refused, as a decision in respect of that application was not conveyed to it by the Council within 180 days of receipt of the application by the Council, or within such further time as agreed between Canal Rocks and the Council.
It follows that the Tribunal has jurisdiction to entertain this proceeding.

Orders

The Tribunal makes the following orders:
1.The Tribunal has jurisdiction to entertain this proceeding.
2.By 10 May 2010 the applicant must file and serve an amended application.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER