| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CITY OF BELMONT and TOWN OF VICTORIA PARK [2014] WASAT 46 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 4 SEPTEMBER 2013 DELIVERED : 12 DECEMBER 2013 PUBLISHED : 14 APRIL 2014 FILE NO/S : DR 98 of 2013 BETWEEN : CITY OF BELMONT Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords: Town planning Development application Preliminary issue Conditions Modification of previous planning approval by removal of condition Condition regulated access and egress to municipal works depot Construction and interpretation of planning instruments Principles of statutory interpretation Rights of review Statutory form of application in scheme altered to permit modification to planning approval Common law prohibition on variation or modification of planning approvals without legislative authority Substantive text of scheme not altered Whether on a true interpretation of scheme sufficient authority to permit modification of previous planning approval exists Held: Tribunal had jurisdiction to undertake review Amended development application form provided sufficient authority in itself to overcome prohibition at common law preventing alteration of planning consents Words and phrases: 'modification' Legislation: Planning and Development Act 2005 (WA)
Town of Victoria Park Town Planning Scheme No 1, cl 30(1), cl 33(1)(c), Sch 3 Result: Tribunal had jurisdiction to undertake review
Summary of Tribunal's decision: A preliminary issue arose concerning whether the Tribunal had jurisdiction to consider a review where a 'modification' to a previous planning approval had been sought. The modification sought was the deletion of a 2002 condition specifying certain access to and egress from a municipal works depot located in another Council's jurisdiction.
Previous court and Tribunal decisions had held that, absent legislative authority, modifications per se to a planning approval of this nature were not permissible. This was because a planning approval is not personal to the applicant 'but enures for the benefit of subsequent owners and occupiers'. In some respects a planning approval 'is equivalent to a document of title'. However, a 'fresh' application for planning approval which, in effect, augmented or extended a development approval, as opposed to a variation or modification of an existing approval, was permitted.
Here, there was no substantive legislative authority to permit modification, except that, in 2011, the statutory form of development application was amended to permit a 'tickabox' category of development or use called 'Modification to Planning Approval'. The amendment did not alter any other relevant text of the town planning scheme.
After examining various approaches to the statutory interpretation principles to be applied in respect of town planning schemes, the Tribunal held that the amended development application form provided sufficient authority in itself to overcome the prohibition at common law preventing the alteration of planning consents. This was so despite there being no substantive material (textual or otherwise) suggesting that this was the legislator's intention.
Thus, the Tribunal had jurisdiction to undertake the review. Category: B
Representation: Counsel:
Applicant : Mr M Flint
Respondent : Mr J Skinner
Solicitors:
Applicant : Flint Moharich
Respondent : Jackson McDonald
Case(s) referred to in decision(s):
36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198
AAA Egg Co Pty Ltd and Shire of Gingin [2013] WASAT 149
Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545
Aznavour Pty Ltd v City of Mandurah [2002] WASC 95; (2002) 128 LGERA 361
Bakker and City of Nedlands [2005] WASAT 106
Broadview Enterprises and City of Stirling [2012] WASAT 199
Charles v Attorney-General (Canada) (1996) 134 DLR (4th) 452
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111
Franco and City of Nedlands [2012] WASAT 53
Minister of Transport (Ontario) v Phoenix Assurance Co (1973) 1 OR (2d) 113
Price and Shire of Gingin [2008] WASAT 210
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Shire of Serpentine-Jarrahdale and Western Australian Planning Commission [2013] WASAT 71
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 A preliminary issue has arisen in connection with a review sought in this Tribunal by the City of Belmont (City) arising out of the refusal in 2012 (2012 application) of the Town of Victoria Park (respondent or Town), to remove condition 2 of a 2002 planning approval mandating certain access and egress routes to the City's works depot, which is located in the municipal area of the Town of Victoria Park. 2 The substantive review is set down, provisionally, for hearing in 2014. 3 The preliminary issue is stated to be: Does the respondent, and thus this Tribunal on review, have power to approve the 2012 application? 4 The essential issue to be resolved relates to whether the removal of condition 2 is an impermissible variation or modification of the 2002 planning approval. 5 The Tribunal holds that it has jurisdiction to approve, on review, the 2012 application. 6 The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Background and facts 7 The Tribunal has been assisted in resolving the issues arising from this preliminary question by the provision of a set of agreed facts. In addition, the Tribunal has been assisted by the oral and written submissions on the point made by experienced counsel. 8 The agreed facts, so far as are relevant, are as follows: 1 By Notice of Planning Approval dated 12 March 2002 (12 March 2002 Approval), the Respondent approved the Applicant's application for a works depot at No. 180 Planet Street, Carlisle. 2 … 3 Condition 2 of the 12 March [2002] Approval provides as follows: All commercial vehicles associated with the depot accessing the depot site via Orrong Road, Kew Street and Planet Street while egress is to be via Planet Street, President Road and Orrong Road. 3A Clause 33(1) of the Town of Victoria Park Town Planning Scheme No. 1 (TPS1) sets out the form of an application for planning approval. Clause 33(1)(a) provides that an application is to 'include all information, plans and documents required, by a provision of this Scheme Text, a Planning Policy or otherwise, to be included in an application for planning approval'. 4 Under cover of letter dated 1 November 2012 addressed to the Respondent, the Applicant sought approval to 'Delete Condition 2 [of the 12 March 2002 Approval] and Footnote 2 [of the 12 March 2002 Approval] or Modify Condition 2 [of the 12 March 2002 Approval] to identify an alternative access and egress for commercial vehicles accessing the Operations Centre' (2012 Application). 5 … 6 The 2012 Application comprised the following materials: 6.1 Letter from the Chief Executive Officer of the Applicant to the Chief Executive Officer of the Respondent dated 1 November 2012. 6.2 Application for Planning Approval signed on behalf of the Applicant on 1 November 2012. This document is the form referred to in clause 33(1) of TPS1 and is Schedule 3 to TPS1. 6.3 Modification to Planning Approval - Supplementary Form. This form can be found on the Respondent's website. It is not part of TPS1, but the document states 'This form is to be completed by applicants in relation to all applications for a Modification to Planning Approval, in addition to the standard "Town of Victoria Park Approval" form'. 6.4 Planning Application Checklist Modification to Planning Approval (excluding [Development Assessment Panel] applications). This form can be found on the Respondent's website. It is not part of TPS1, but the document states 'This checklist is to be completed by the applicant and submitted with every application for planning approval. INCOMPLETE APPLICATIONS WILL BE RETURNED'. 6.5 Report prepared by the Applicant and dated October 2012 entitled 'City of Belmont Operations Centre Alternative Access Proposal', including the following attachments: • the conditions of the 12 March 2002 Approval; • the minutes of the ordinary meeting of the Council of the Respondent on 12 March 2002; and • report by Uloth & Associates dated 28 September 2012 and entitled 'City of Belmont Operations Depot Traffic Impact Assessment of Proposed Access Route Modifications'. 6.6 Cheque made out to the Respondent in the sum of $500. 7 The 2012 Application was refused by the Council of the Respondent at its ordinary meeting on 12 February 2013 …
How the issue arises 9 Importantly, the application for planning approval in this case follows the form appearing in Sch 3 to the Town of Victoria ParkTown Planning Scheme No 1 (TPS 1 or scheme). Schedule 3 was replaced by Amendment 51 to TPS 1, gazetted on 30 December 2011. This form, unlike those of other local governments, thereafter expressly permitted an application for the 'Modification to Planning Approval' as one of the specified 'tick-a-box' categories of development and land use categories appearing on page 2 of the form. However, no other textual amendments were made to TPS 1 making it unclear whether this was, say, a matter of mere administrative tidying up or a matter of substance. 10 I mention that the word 'modification' suggests the act of 'chang[ing] somewhat the form or qualities of [something]' or to 'alter somewhat' something, here a previous planning approval: Macquarie Concise Dictionary (3rd ed, 2004), emphasis added. 11 The issue for determination arises out of the treatment by this Tribunal of the Full Court's decision in Aznavour Pty Ltd v City of Mandurah [2002] WASC 95; (2002) 128 LGERA 361 (Aznavour). In that case RobertsSmith J said (at 185): It was common ground that there is no legislative provision which would enable the first respondent [the City] to revoke or vary a planning approval once given. It may be accepted that in the absence of such legislative authority, a purported revocation or variation is invalid … 12 It should be perhaps emphasised that the rationale for this certainty and permanency of planning approvals arises from the fact that: … a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title. 13 See, Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321, cited in AAA Egg Co Pty Ltd and Shire of Gingin [2013] WASAT 149, at [30]. 14 Aznavour has been applied in this Tribunal in Bakker and City of Nedlands [2005] WASAT 106 (Bakker); Price and Shire of Gingin [2008] WASAT 210 (Price) and Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 (Coventry Square). 15 In Coventry Square I said, at [34]: In my view, Aznavour requires in effect an inquiry into context which will point to either an applicant seeking an impermissible variation, as here and as also happened in Bakker, or retrospective approval, as happened in Price. Alternatively, it will be tolerably clear that the applicant has lodged a fresh application on the principle that, speaking generally, multiple planning approvals can attach to the same land. 16 Earlier, in Coventry Square, I said, at [32]: Regrettably … Aznavour must be applied, as the applicant has neither taken unilateral action …that might attract a characterisation [of an application] leading to retrospective approval, nor has the applicant sought fresh planning approval for what it seeks to do (or, as the applicant's counsel put it, an approval 'augment[ing] or extend[ing] development for which ... approval has already been granted' - a fresh application divorced from 'varying' what has been previously approved and constructed). 17 Although, as Mr Skinner, counsel for the respondent, points out the Full Court's observations may be regarded strictly as obiter, they nevertheless carry great weight in this Tribunal. Further, consistency in decision-making in this place would be undermined, I think, if the position outlined above in these three cases were now to be radically departed from. 18 Here, the applicant has sought review in the express terms of the seeking of 'modification'; that is, a variation or modification by deletion of condition 2 of the 2002 approval. 19 On the face of it, this review cannot succeed unless the decision under review can be characterised as either: 20 Plainly, option 1 of characterising the planning approval sought as other than a variation or modification is simply not open on the agreed facts in this case. Rather, the applicant sought what the statutory application form (Sch 3) appears to permit, namely a variation or modification by the deletion of condition 1 from the previous planning approval. 21 I turn to the critical issue, therefore, of what is the true construction of TPS 1 in such circumstances.
What TPS 1 says 22 I commence by examining what the scheme says in relation to permissible variations or modifications to an existing planning approval. 23 As has been mentioned, TPS 1 was amended by an alteration by replacement to the scheduled application form for a planning approval (Sch 3) to expressly include a category of 'modification' to a previous planning approval. 24 Subsequent administrative forms issued by the respondent, being forms either authorised or contemplated by cl 33(1)(c) of TPS 1 (dealing with forms and accompanying information), seek corresponding detail relating to the proposed modification. 25 However, no corresponding substantive text was expressly altered to make it, arguably, sufficiently clear that a modification to a planning approval was now substantively (in contrast to procedurally or administratively) authorised. And, it is clear that the extrinsic material explaining the amendments effected by Amendment 51 (that is, Council's reasons for seeking the legislative change) do not suggest that anything of any magnitude, such as the reversal of the principle in Aznavour, was being contemplated or sought. 26 It appears that what was sought was more or less an administrative tidying up of the approvals process, perhaps validating to some degree what administratively had been occurring for some time. 27 However, such motivations do not, of course, control the outcome as regards the task of statutory interpretation of the amendment. Here legislative change was effected by a change in the scheme's text, and these legislative changes might have consequences beyond what the drafters immediately foresaw.
Interpretation of town planning schemes 28 I commence the task of statutory interpretation by setting out some basic principles relevant to the interpretation of planning instruments. First, there is, perhaps, an overarching requirement to read town planning schemes in a 'practical and common sense' way because of the context and circumstances of their drafting. See, for example, the cases discussed in Broadview Enterprises and City of Stirling [2012] WASAT 199 at [42] to [43], citing amongst other authorities Edelman J in Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 at [37]. 29 On the use of 'common sense' facts, values and assumptions in statutory interpretation generally, see Ruth Sullivan's (Canadian) work, Statutory Interpretation (1st ed, 1997) at pages 39 to 40; (2nd ed, 2007) at pages 36 to 37. 30 However, notwithstanding this starting point, sometimes a town planning scheme's drafting may have unintended consequences that cannot be avoided and which must be applied so as to uphold the principles underlying the rule of law. These issues were considered at length in Franco and City of Nedlands [2012] WASAT 53, where there was an attempt, in very specific circumstances, to displace the application of a defined term found in the scheme. 31 Recently, these debates have extended into the more controversial area of whether a 'strained construction' can be given to a town planning scheme, even permitting additional missing words to be read into the scheme. See the discussion of this issue (and the references therein to the relevant NSW planning cases) in the Shire of Serpentine-Jarrahdale and Western Australian Planning Commission [2013] WASAT 71, at [21] to [27] (Shire of Serpentine-Jarrahdale). 32 To the authorities discussed in Shire of Serpentine-Jarrahdale might be added the modern Canadian approach to 'filling the legislative gap' found in, for example, Charles v Attorney-General (Canada) (1996) 134 DLR (4th) 452. This case applied an earlier Ontario case: Minister of Transport (Ontario) v Phoenix Assurance Co (1973) 1 OR (2d) 113 (which had been affirmed by the Supreme Court of Canada: (1975) 54 DLR (3d) 768). 33 In Minister of Transport (Ontario) v Phoenix Assurance Co, Schroeder JA said, at 119: In my respectful opinion, the letter of [the] enactment [which is before the court] may be said to be logically defective. Manifestly there is a genuine and perfect intention lying behind its defective language, as I have endeavoured to point out. Can it be doubted that the Legislature would have expressed this intention had the admission been called to its attention? 34 See also Sullivan (1st ed, 1997) at pages 162 to 164; (2nd ed, 2007) at pages 120 to 124. So, too, the position in South Africa; thus, Lourens M du Plessis's The Interpretation of Statutes (1986) at 151: It would … be rather unrealistic to maintain that a court may never fill a gap. If for instance an enactment creates an offence but fails to provide for a penalty, then … the court does have discretion to determine an appropriate penalty. 35 Compare, Kirby J in Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545, at [148] (internal citations omitted): In some cases (for example, remedial or protective legislation) courts may still be more inclined to repair apparent defects in the expression of the written law. In other cases, courts will not struggle to expand the operation of the written text beyond its express provisions. Instead, they will adopt a construction that confines the law more precisely to the language used. This course is not adopted by judges to frustrate the purposes of legislation. It is justified by reference to postulated assumptions, attributed to Parliament, defensive of its prerogatives and of the liberties of the people. 36 These examples, even allowing for the differences in sources and approach, appear to demonstrate a certain universality of method, that of always seeking sufficient justification for the 'filling' of a legislative gap, itself a task to be approached with restraint. 37 Before returning to these developments, perhaps orthodox or more established approaches should be first considered, in order to see whether Amendment 51, which is a rather straightforward substitution of a scheduled form, can have the effect of authorising a development approval which can modify an existing development approval - as its literal reading might suggest. 38 First, I note that the text in such schedules is not thereby to be given treatment as an inferior species of enactment. The whole issue of the status of the text found in schedules (and related matters) is considered by this Tribunal in 36 Chester Avenue Pty Ltd and City of Stirling [2012] WASAT 198 (Chester Avenue). 39 There, at [23] of Chester Avenue, the discussion commences with the observation found in Bennion on Statutory Interpretation (5th ed, 2008) at page 722: Whether material is put in a section or a Schedule is usually a mere matter of convenience. Little significance should therefore be attached to it. 40 Chester Avenue emphasises the need for a search for the legislator's intentions regardless of the precise form that that intention has been expressed. 41 Of significance is the related injunction that '[a]ll words [in a statute] have meaning and effect': see, Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011), at page 49. To similar effect is du Plessis' observation that there is a presumption that '[n]o enactment contains invalid or purposeless provisions': The Interpretation of Statutes (1986), at 61. 42 The unstated premise, I think, of these maxims must be respect for parliamentary intent and upholding the rule of law.
Application of the relevant principles 43 In my view, having regard to the context and circumstances of the drafting of town planning schemes in general (and how they are to be, generally, liberally read and applied by courts and tribunals as a specific class of instruments), but also having regard to the need to preserve the rule of law by giving effect to the legislator's intentions by applying the enacted text and giving effect to each word therein except, of course, where to do so would defeat the legislator's intention, the appropriate construction of Sch 3 is that it authorises an application for what it expressly invites, namely a modification to an existing planning approval. 44 All the consequences that flow from that authority must naturally follow, including the reversal by statute of the limitations found in the common law concerning the inability of varying the status of an otherwise 'vested' approval. 45 In the alternative, and if necessary, it would be equally appropriate and justified, to apply the principles discussed and applied, for example, in Shire of Serpentine-Jarrahdale to give the amended text (that is, the new application form in Sch 3), a 'strained construction' so that it may be read as if short additional words were, in effect, inserted into the text to give effect to the legislative purpose. 46 These words, which would be notionally read into either Sch 3 itself or elsewhere in the text of TPS 1, would make it clear that the contemplated modification to a previous planning approval was itself to be regarded as included or recognised in the substantive category of development approvals that could be applied for, thus reversing the position at common law.
Alternative constructions 47 It thus becomes unnecessary, with respect, to address Mr Skinner's ingenious alternative text-based argument that relies upon the words 'begin or continue' found in cl 30(1) of TPS 1. That provision provides as follows (emphasis added): 30. NEED FOR PLANNING APPROVAL (1) A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by clause 31 [not relevant to these proceedings], without first having applied for and obtained planning approval. 48 Mr Skinner argues, at [13] of his written submissions (original emphasis), that one way of giving meaning to the word 'continue' found cl 30(1) is to apply it to: … circumstances where a development that has already been approved prior to beginning is to continue in a varied or modified manner - particularly where the modification is not of itself 'development' that would require a separate or fresh planning approval before beginning, or which could be approved as an existing development.
Conclusions and orders 49 Accordingly, and for the reasons given, I hold that the Tribunal has jurisdiction in the review and it may proceed to a hearing on the merits of the matter as is presently scheduled. The orders of the Tribunal are: 1. The preliminary question for review is as follows: Does the respondent Town, and the Tribunal on review, have the power to approve the 2012 development application? 2. The Tribunal answers the preliminary question as follows: 3. The scheduled hearing for 29 and 30 April 2014 is confirmed. |