Canal Rocks Pty Ltd v Shire of Busselton - [2009] WASCA 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CANAL ROCKS PTY LTD -v- SHIRE OF BUSSELTON [2009] WASCA 35

CORAM: STEYTLER P
McLURE JA
PULLIN JA

HEARD: 21 NOVEMBER 2008

DELIVERED : 6 FEBRUARY 2009

FILE NO/S: CACV 102 of 2006

BETWEEN: CANAL ROCKS PTY LTD
Appellant
AND
SHIRE OF BUSSELTON
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :BARKER J
Citation  :CANAL ROCKS PTY LTD and SHIRE OF BUSSELTON [2006] WASAT 211
File No  :DR 266 of 2003

Catchwords:

Town planning - Proposal to erect single house on reserve - Whether planning consent required - Whether Development Guide Plan required - Turns on own facts

Legislation:

Planning and Development Act 2005 (WA), s 174(1)(a), s 177(1)(b), s 187
State Administrative Tribunal Act 2004 (WA), s 105

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P McQueen
Respondent: Mr L A Tsaknis

Solicitors:

Appellant: Lavan Legal
Respondent: Woodhouse Legal

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

In re Bland Bros v The Council of the Borough of Inglewood (No 2) [1920] VLR 522
Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352

STEYTLER P: I agree with McLure JA.
McLURE JA: The appellant appeals from a decision of the State Administrative Tribunal (Tribunal) dismissing the appellant's application for planning consent in respect of a proposed development on land owned by it at Smiths Beach in the Shire of Busselton (Shire).
The appeal is made under s 105 of the State Administrative Tribunal Act 2004 (WA) (the Act). Leave to appeal is required (s 105(1) of the Act) which can only be brought on a question of law (s 105(2) of the Act).
The appellant is the owner of Sussex Location 413, Smiths Beach Road Yallingup (the land). The land comprises approximately 40 ha, around 30 ha of which is zoned 'Tourist' and around 10 ha in the western section is classified 'Reserved for Recreation' (the Reserve) under the Shire of Busselton District Town Planning Scheme No 20 (the Scheme).
The appellant lodged with the Shire an application for planning consent to build a single house on the Reserve. When the Shire did not grant its consent within 60 days of receipt of that application, the appellant took the view that the Shire was deemed to have refused the application pursuant to cl 15 of the Scheme. The appellant then applied to the Tribunal for a review of the Shire's deemed refusal.
The Tribunal, constituted by three members including the President, held that (1) planning consent was required for the development pursuant to cl 19 of the Scheme which fell within the exception in cl 16(d); (2) as the exceptions in cl 25(9) and (10) of the Scheme did not apply, the appellant was required by cl 25 to submit to the Shire a Development Guide Plan (DGP) before the Shire was obliged to consider the application for planning consent; (3) as no relevant DGP had been submitted, there had been no deemed refusal of the application with the consequence that the Tribunal did not have jurisdiction to entertain the application or grant or refuse approval.
In summary, the appellant contends in its grounds of appeal that on a proper construction of cl 16 of the Scheme, the application is exempt from any requirement for planning consent but that if planning consent is required, the Tribunal erred in law in the course of its determination that a DGP was required under cl 25 of the Scheme.
The respondent filed a notice contending that the appellant was estopped from claiming that cl 16 of the Scheme did not apply to the

proposed development because that issue had been determined against it by Deputy President Chaney as a preliminary issue.

The Scheme framework

Part 2 of the Scheme deals with matters relating to applications for planning consent and their determination. No provision in pt 2 imposes an obligation to obtain planning consent. The obligations are located elsewhere in the Scheme. However, cl 16 deals with exemptions from planning consent. It provides:
Notwithstanding any other provision of the Scheme, the erection on a lot of a single house … 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 term 'single house' is defined to mean an independently constructed dwelling standing wholly on its own lot created pursuant to the Town Planning and Development Act 1928 (WA) (now the Planning and Development Act 2005 (WA)). Dwelling is relevantly defined to mean a building intended, adapted or designed to be used for the purpose of human habitation on a permanent basis.
Development is defined to mean the use or development of any land and includes the erection, construction, alteration or carrying out of any building, excavation or other works on any land.
Part 3 of the Scheme deals with Reserves. Land shown as Scheme Reserves on the Scheme Map is reserved under the Scheme for the purposes shown on the Scheme Map (cl 17).
Clause 19 materially provides:
(1)No person shall on a Scheme Reserve, without the approval of the Council:
(a)demolish or damage any building or works;
(b)remove or damage any tree;
(c)change the use of the land or building;
(d)excavate, spoil or use the land so as to destroy, affect or impair its usefulness for the purpose for which it is reserved; or
(e)construct, extend or alter any building or structure other than a boundary fence.
(2)(a) ….
(b)Where an application for Planning Consent is made with respect to land within a Reserve, the Council shall have regard to the ultimate purposes intended for the Reserve and the Council shall, in the case of land reserved for the purposes of a public authority, confer with that Authority before granting or refusing that consent.
(3)Where the Council refuses approval for the development of land under the Scheme on the ground that the land is reserved for public purposes, or grants approval subject to conditions, such that the effect of the decision is to permit the land to be used or developed for no purpose other than a public purpose, the owner of the land may, if the land is injuriously affected thereby, claim compensation for such injurious affection.
Clause 19(1)(e) refers to a 'building' which is relevantly defined to include a dwelling. Thus, prima facie a single house is a building.
Part 4 of the Scheme classifies land within the Scheme into 14 Zones and eight Areas. The Areas include Development Investigation Areas, Landscape Value Areas and Special Character Areas. All of the land is within a Development Investigation Area to which cl 25 of the Scheme applies. Clause 25(1) and (2) provide:
(1)The purpose of identifying land on the Scheme Map as being within a Development Investigation Area is to enable the planned and progressive use and development of the land for other purposes in a manner and at a time appropriate to the orderly and proper planning and development of the land, the locality and the District.
(2)Subject to Sub‑Clause (9), where land is identified on the Scheme Map as being within a Development Investigation Area, the Council shall require the rezoning of the land consistent with the proposed uses and 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.
The DGP is required to show in a comprehensive manner how the land is to be developed (cl 25(3)). That is to include, inter alia:
(a)the proposed allocation of land uses, the residential codes applying and typical lot sizes;
(b)the management of environmentally sensitive locations, including identification of buffers, vegetation and habitat corridors;
(c)the allocation, management and treatment of buffers as necessary to surrounding agricultural land;
(d)the proposed principal road and other transport and movement systems, including relationship with regional infrastructure …
(e)the proposed provision of community and service facilities;
(f)proposals for the provision of public utilities and services, including the management of stormwater …
(g)proposed staging;
(h)adequate data identifying the physical and environmental characteristics of the land;
(i) …
(j)for land to which Schedule 13 applies, the requirements of that schedule.
A DGP has to be advertised for a minimum period of 28 days (cl 25(4)). After considering any submissions, the Council may refuse or adopt the DGP (cl 25(5)). Following its adoption, the Council is required to cause the DGP to be forwarded to the Western Australian Planning Commission (the Commission) (cl 25(6)). The Commission may refuse or adopt the DGP (cl 25(7)). Clause 25(8), (9) and (10) relevantly provide:
(8)The Development Guide Plan so adopted [by the Commission] shall be endorsed by the Council and the … 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 …
(9)Notwithstanding the foregoing, the Council may approve any development in a manner consistent with the underlying zone without requiring a Development Guide Plan where, in the opinion of the Council, such development is of a minor nature and will not adversely affect the future subdivision or development of land within the Zone.
(10)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.
Clause 25(14) relates specifically to the land. It provides:
Sussex Location 413 Smiths Beach Road, Yallingup, which is identified in Schedule 13 will be required to address the provisions of Schedule 13 in addition to the requirements of clause 25.
The requirements in sch 13 are very lengthy and detailed. Clause 2(g) provides:
(2)A Development Guide Plan prepared for the land by the Shire or the landowner must include the following associated plans or reports:
(g)a Visual Landscape Assessment for the whole of the land.
Clause 4(a) of sch 13 provides:
(4)In relation to Sussex Location 413 Smiths Beach Road, Yallingup, the Identified Developable Land Area(s) shown on a Development Guide Plan will identify where development may be undertaken on the land and must be determined having regard to the ‑
(a)overriding need to protect the visual amenity, natural landscape and environmental values of the area.
The land is also in a Landscape Value Area to which cl 27 of the Scheme applies. Clause 27(3) provides:
The Council shall not consent to the carrying out of development on land within the Landscape Value Area or on land on or near any ridgelines where, in the opinion of the Council, that development is likely to substantially detract from the visual amenity of the area, having regard to the cumulative visual effect of the development related to other development that may be anticipated in the locality and in the area generally.
The appeal was conducted on a number of unchallenged assumptions including: (1) land cannot simultaneously be reserved and zoned; (2) a Reserve and/or zoned land can be within an Area under pt 4, including a Development Investigation Area; and (3) cl 25(10) has the same purpose and effect as cl 25(9) being to dispense with the requirement for a DGP.

Facts and findings

Prior to the Tribunal hearing, Deputy President Chaney considered as a preliminary issue whether the appellant's application was exempt from the requirement for planning consent under cl 16 of the Scheme. The Deputy President rejected the appellant's construction of cl 16. However, he concluded that the question of consistency under cl 16(d) could only be determined upon a full review of the development proposal and could not be determined simply by reference to the terms of the Scheme and the relevant policies. Accordingly, the application was heard by the Tribunal.
The following is taken from the Tribunal's reasons for decision. The land abuts an unconstructed road reserve to the south, with vacant Crown land to the west and north, on the coast, forming a foreshore reserve. The land has not yet been physically developed. Other land to the south and the upslope of the land is part of the Leeuwin‑Naturaliste National Park. The land is generally covered with a mosaic of dense coastal vegetation which is considered, botanically, to be in very good condition.
On the coastal foreshore reserve abutting the western boundary of the land and partly on the land itself, is the Cape Naturaliste to Cape Leeuwin walking track. The track from near the southern end of Smiths Beach to Canal Rocks is particularly attractive as it affords those who walk it the opportunity to enjoy views or glimpses of the vegetation, as well as more distant views of the National Park. It also provides walkers with the opportunity to observe the scenic, rocky coastline with its associated wave activity and more long‑distance views of the coastline, both in a northerly direction along Smiths Beach and towards Cape Naturaliste and in a southerly direction towards Canal Rocks.
The proposed location of the dwelling house would bring it to within about 120 m ‑ 160 m of the existing Cape to Cape walking track, with little vegetation to screen it from users of the track. If constructed, it would be the only house in close proximity to the track from the point one enters it at the southern end of Smiths Beach Road to the point at which one arrives in the Canal Rocks area.
The appellant's development application is to construct a single storey dwelling using non‑reflective materials and a design, including a roof line, that is likely to draw less attention than other possible built forms might.
Currently, the land is not subdivided and there is no present proposal for its subdivision. Prior to the hearing of the application before the Tribunal, the appellant had lodged a DGP with the Shire, apparently in respect of the whole of the land, but particularly to guide the development of the Tourist Zone in the eastern sector. The Tribunal was informed that this DGP was currently 'deferred'.
The Tribunal held that the appellant's application to erect a single house on land which is the subject of a Reserve under pt 3 of the Scheme was not exempt from the requirement to obtain planning consent under cl 16 of the Scheme. It appears the Tribunal concluded that the application fell within the exception in par (d) of cl 16. It was common cause that no other exception applied. The Tribunal's reasoning was as follows:
[T]he Tribunal is of the view that the exemption created by cl 16 would, potentially, be inconsistent with the requirement in cl 19 for the Council to give approval to the construction of a building ‑ including a single house ‑ on a Reserve. Clause 19(2)(b), as we have seen, expressly requires the Council to 'have regard to the ultimate purposes intended for the Reserve' when considering whether the prescribed activities referred to in cl 19(1) should be approved on a Reserve. If the cl 16 exemption from planning consent in respect of a single house on a lot were to apply in respect of the proposed development of a single house on land within a Reserve, the Council would not have the opportunity to determine whether the proposed development satisfied that important criterion.
Whether or not it may be said that there is some express inconsistency between the exemption provision in cl 16 and the activity approvement regime created by cl 19 in respect of a Reserve, matters little as the Council plainly retains direct control over the express activities in Reserves. If it chooses not to give approval, that decision will be effective, subject of course to the right of an aggrieved person to seek a review of the Council's decision made under cl 19 in this Tribunal [65] ‑ [66].
The reference to 'potential' inconsistency in [65] needs to be explained. In construing cl 16(d) the Tribunal concluded that:
A development may well be inconsistent with any other provision of the Scheme not only where another provision of the Scheme seems expressly to contradict the exemption created by cl 16, but also where another provision of the Scheme on its proper interpretation and application produces an inconsistency with the exemption provision [63]. (emphasis added).
The Tribunal also held [69] that cl 25 may apply to a Reserve to which cl 19 applies.
The Tribunal made the following findings. The proposed development ‑ even with sensitive attention to its scale and built form ‑ would undoubtedly constitute an extremely prominent form of development in this significant coastal environment and would intrude upon the 'wilderness‑like experience'. Thus, the Tribunal concluded [105] that 'the construction of the proposed development would significantly affect the current visual amenity of the immediate locality'. It continued:
In these circumstances the Tribunal is of the view that to site a dwelling house on the proposed location within the western sector of the land in the area reserved for recreation ‑ in circumstances where the eastern sector of the land which is zoned Tourist is yet to be developed and the Development Guide Plan lodged with the Council in respect of that development is currently 'deferred' ‑ is likely to prejudice the future development of the land as a whole. It is also likely to have an effect on the foreshore land in the vicinity of the reserved land, and its use. Until such time as a Development Guide Plan has been endorsed in respect of the whole of Sussex Location 413, as a result of which it can be fully understood what the ultimate form of development over the whole of the land is likely to be, the Tribunal cannot be satisfied that the siting of the dwelling house is unlikely to prejudice the future development of the land or other land in the vicinity [106].
In reliance on these findings, the Tribunal concluded that cl 25(10) of the Scheme had no application to the proposed development. It reached the same conclusion in relation to cl 25(9). The Tribunal said:
Similarly, we consider that by reason of the significant visual impacts likely to flow from the proposed development, the development cannot be considered to be of a 'minor nature' for the purposes of cl 25(9). Whilst the proposed development is on the portion reserved for recreation, the whole of the land includes land zoned Tourist. A Development Guide Plan needs to have regard to the whole of the land. Where land is 'zoned', the underlying zone needs to be regarded for the purposes of cl 25(9). It cannot be said in this case that the proposed development is consistent with the underlying zone, in this case that part zoned Tourist, because it involves the development of land currently set aside as a Reserve for recreation which may be important to the future development and use of the Tourist area [108].
It continued:
The future tourist and residential use of the eastern sector of the land, on a considered view, should have the benefit of the land reserved for recreation without that Reserve having a residential development located on it, in a prominent position, close to the Cape to Cape walking track. Additionally, the proposed development could significantly affect the use and enjoyment of other land in the vicinity ‑ the foreshore land ‑ and for this reason also cannot be considered to be of a 'minor nature' [110].

Ground 1 - the applicability of cl 19

The appellant contends that its application for planning consent to build a single house on the land does not require approval under cl 19 of the Scheme because the development is not inconsistent with the provisions of the Scheme under cl 16(d) and, no other exception applying, the application is exempt under cl 16.
The correctness of the proposition depends upon the meaning of cl 16 as a whole and the exception in cl 16(d) in particular. The appellant contends that the expression 'inconsistent with any other provision of the Scheme' in cl 16(d) means expressly inconsistent with another provision that deals specifically with the erection on a lot of a single house. It provides, by way of example, cl 87 of the Scheme which relevantly provides:
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.
The appellant takes the unorthodox and erroneous approach of identifying an inconsistent provision and formulating a narrow test to meet that example. The appellant also contends that the exemption in cl 16 for the erection on a lot of a single house is specific and is intended to prevail over the general provision in cl 19 in which event the term 'building' in cl 19(1)(e) should be read down to exclude a single house.
The respondent contends that the expression 'inconsistent with any other provision of the Scheme' means inconsistent as a matter of construction or application with any other provision of the Scheme. This construction was accepted by the Tribunal (and by Deputy President Chaney). When pressed to clarify what was meant by the inconsistent application of another provision of the scheme, the respondent's counsel explained that it covered situations where, in relation to a development, the potential exercise of a planning discretion could, or perhaps would, result in an inconsistent outcome, being the refusal of planning consent. Such a construction would deprive cl 16 of any practical content and cannot be correct.
The genesis of the 'application' test may have been the Scheme Amendment Report which led to the insertion of cl 16 in the Scheme. The report materially states:
Two provisions of the [Scheme] have been found to be impractical and unnecessary and require modification in order to promote the orderly and proper planning of the Shire.
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 … The requirement is 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 unreasonably held up among other development applications. They can be adequately addressed by the building application process.
…
The need for planning consent for a single house in all area 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.
The tenor of the report is that the exemption is intended to apply where issues of planning principle are generally unlikely to arise and any non‑compliance with the Scheme could be addressed at the building licence stage. That is a very far cry from the case at hand.
It is necessary to focus on the language of cl 16, starting with the opening phrase 'Notwithstanding any other provision of the Scheme'. That expression ordinarily signifies that that provision will override other provisions of the Scheme which would otherwise require that planning consent be obtained. That is, the opening expression is prima facie intended to mean 'Notwithstanding any other provision of the Scheme requiring planning consent for the erection on a lot of a single house'.
On a literal reading of cl 16(d), it applies if there is an inconsistency between the development and another provision of the Scheme. In context, the development must be a reference back to the opening words 'erection on a lot of a single house', albeit in the circumstances pertaining to the development in issue.
It may be thought to follow from the opening expression as construed above, that a provision of the Scheme requiring planning consent for the erection on a lot of a single house could not itself be inconsistent for the purposes of cl 16(d). That is, the expression any other provision in par (d) means any provision other than one requiring planning consent for the development. That raises two possibilities. First, that cl 16(d) only applies to inconsistencies (such as any absolute prohibitions) to which the planning consent provisions have no application. Secondly, that cl 16(d) should be read down to exclude any inconsistency deriving solely from a provision requiring that planning consent be obtained for a single house on a lot. Thus, if the development in question (not any development of any nature) is inconsistent with another (different) provision or provisions of the Scheme, the exception in (d) would apply even if the development could proceed with planning consent. In determining whether another provision is relevantly inconsistent, regard can be had to the general indicators of legislative intent as to whether cl 16 is intended to apply.
The first approach is too narrow. It would exclude cl 87 which is clearly intended to be inconsistent for the purpose of cl 16(d). The same opening expressions in both cl 16 and cl 87 cancel each other out and cl 87 prevails because it is more specific than cl 16.
The second approach is consistent with general canons of statutory construction and is to be preferred. Applying the preferred construction, the development is inconsistent with other provisions of the Scheme.
The Scheme includes the Scheme Map (cl 5(3)). The Scheme Map shows the land on which the development is to be erected is reserved for recreation. Clause 18 lists the uses to which a Reserve may be put. They are relevantly confined to the purpose for which the land is reserved or the purpose for which it was used at the date on which the Scheme came into operation. Neither applies to the use of a single house. On its face, the development proposed by the appellant is inconsistent with the reservation for recreation. Moreover, there are clear indications from pt 3 of the Scheme as a whole that the exemption in cl 16 is not intended to apply to Reserves. First, in the exercise of the power to grant or refuse approval for development of the land there are mandatory considerations peculiar to Reserves. The Council must have regard to the ultimate purposes intended for the Reserve and if reserved for the purpose of a public authority, must confer with that authority (cl 19(2)(b)). These special requirements would be bypassed if cl 16 applied. Secondly, the application and approval procedure is the trigger for the Council to determine whether the land is to be used for the reserved purposes and its refusal to grant approval enlivens the owner's entitlement to claim compensation for injurious affection (cl 19(3)). Where such a claim is made, the responsible authority may at its option elect to acquire the land: see s 174(1)(a), s 177(1)(b) and s 187 of the Planning and Development Act 2005 (WA).
Accordingly, there is no proper basis to read down the defined meaning of 'building' in cl 19(1)(e) to exclude a single house. Thus, the appellant's proposal to erect a single house on the Reserve is inconsistent with the purpose for which it is reserved under the Scheme Map and to which pt 3 of the Scheme applies. That conclusion is consistent with the legislative intention revealed in the Scheme Amendment Report.
There is an additional and independent basis for the same conclusion involving cl 25. Clause 25 does not impose an obligation to obtain planning consent. Rather, it imposes an obligation to submit and have endorsed a DGP prior to Council approving any development of the land. The source of the obligation to obtain Council approval is to be found elsewhere in the Scheme, in particular, in cl 19 for Reserves and cl 21(2)(b) for Zones. However, the requirement for planning approval (consent) is inextricably intertwined with the obligations in cl 25 and cannot be separated. It would be a nonsense to require a DGP but dispense with any requirement to have the development approved by Council. The implication in the appellant's case was that if the development satisfied the conditions in cl 25(9) or (10) so that a DGP was not required, the exemption in cl 16 applied. That is wrong for two reasons. First, the development of a single house on the land in isolation is inconsistent with cl 25 (and sch 13) which requires a DGP for the land as a whole. Clause 25 does not cease to be inconsistent if the conditions precedent, including Council's opinion or satisfaction on planning matters, are met and a DGP is not, as a matter of fact, required. Secondly, cl 25(9) and (10) compel the conclusion that the makers of the Scheme did not intend that such a development proceed on land to which cl 25 applies without planning consent. The conditions precedent in cl 25(9) and (10) (on the assumption it has the same purpose and effect as cl 25(9)) enlivens the power to approve without a DGP.

Grounds 2 and 3 - cl 25

The appellant claimed in ground 2 that the Tribunal erred in concluding that cl 25(9) of the Scheme did not apply to its development application. That ground was not pressed because it did not raise any error of law. I proceed directly to ground 3 which is the following terms:
The Tribunal erred in fact and law in finding that clause 25(10) of [the Scheme] did not apply to the proposed development. In deciding that the proposed development would be likely to prejudice the future development of the land as a whole, the Tribunal took into account irrelevant material, namely, visual impact and amenity, rather than focusing on the prejudice, if any, of the future development to the Land.
The appellant proceeded on the unchallenged assumption that a DGP was not required if subclause (10) applied. In that event subclause (2) should be amended to read 'Subject to Sub-Clause (9) and (10)'. I will assume that to be correct.
The appellant is confined to its ground which is without merit. Clause 25(10) only applies where:
1.the dwelling house is proposed to be erected on an existing allotment of land within a Development Investigation Area; and
2.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.
As noted above, 'development' includes use. Attention also needs to be given to the expression 'prejudice the future development (including use) of the land or other land in the vicinity'. The term 'prejudice' has its natural and ordinary meaning of disadvantage resulting from some action.

A DGP under cl 25 relates to the Development Investigation Area as a whole. That is certainly the case in relation to the DGP required for the land, as detailed in sch 13. Clause 2(g) and cl 4(a) of sch 13 (set out above) demonstrate both the relevance and the importance of visual impact and amenity for the whole of the land. Thus, the visual impact or amenity from the erection of a dwelling house in isolation is clearly a relevant consideration under cl 25(10). I would dismiss ground 3.

Notice of contention

As I read the notice of contention, the respondent relies on the doctrine of issue estoppel not res judicata for its claim that the appellant is estopped from raising ground 1. The sole issue identified by the parties in their written submissions is whether the Deputy President's decision is final notwithstanding its interlocutory nature.
The contention appears to be inconsistent with the position taken before the Tribunal in which the construction issue was reventilated and determined. Moreover, it was only referred to in passing in oral submissions. In these circumstances and because the outcome of the appeal is not dependent on the contention, I do not propose to determine the matter.
PULLIN JA: McLure JA has set out the relevant provisions in the Scheme, the facts, the assumptions on which the appeal was conducted and the issues. The principal issue is whether approval of Council in the form of planning consent was required before the proposed house could be built on the reserve. The appellant's argument was that cl 16(d) of the Scheme applied and that it provided that planning consent was not required for the proposed house.
Clause 16(d) on which the appellant places reliance reads:
Notwithstanding any other provision of the Scheme, the erection on a lot of a single house … does not require planning consent, except where … the development is inconsistent with any other provision of the Scheme.
This clause contains three parts. The first consists of introductory qualifying words ('notwithstanding any other provision of the Scheme') which will give the clause paramountcy if, on a proper construction of the Scheme as a whole, it clashes with any other clause or clauses. However, the clause must first be interpreted without the introductory qualifying words. See Piper v Corrective Services Commission of New South

Wales (1986) 6 NSWLR 352, 359; In re Bland Bros v The Council of the Borough of Inglewood (No 2) [1920] VLR 522, 533. See also Pearce & Geddes, Statutory Interpretation in Australia, 6th ed [12.4]. The second part of cl 16 is the principal provision which states that 'The erection on a lot of a single house does not require planning consent'. However, the principal provision is subject to the third part which contains words of exception ('except where … the development is inconsistent with any other provision of the Scheme'). To give proper meaning to the clause the words 'the development' must refer to the erection on a lot of a single house.

In my opinion, the exception applies because the proposed development, that is the erection of a house without planning consent, would be inconsistent with cl 19(1)(e). Clause 19(1)(e) states that:
No person shall on a Scheme Reserve, without the approval of Council … construct … any building.
The proposed house is on a Scheme Reserve. A 'building' is defined to include a 'dwelling'. The proposed house is a dwelling. So this clause unambiguously states that Council approval is required for the construction of the proposed house on the reserve. My opinion is further strengthened because cl 19 is a specific provision relating to reserves whereas cl 16 is a general provision relating the whole Scheme area. The fact that it refers only to a particular type of building does not make it the specific provision.
Because the exception in cl 16(d) applies, the principal provision does not apply and hence the introductory qualifying words have no work to do. For those reasons, I would dismiss ground 1.
I agree with McLure JA's reasons for dismissing ground 3. Ground 2 does not have to be dealt with. I agree also that the notice of contention does not have to be determined.