City of Gosnells v Reid
[2024] WASCA 155
•17 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CITY OF GOSNELLS -v- REID [2024] WASCA 155
CORAM: BUSS P
VANDONGEN JA
LUNDBERG J
HEARD: 15 FEBRUARY 2024
DELIVERED : 17 DECEMBER 2024
FILE NO/S: CACV 51 of 2023
BETWEEN: CITY OF GOSNELLS
Appellant
AND
JIM REID
First Respondent
WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ARCHER J
Citation: REID -v- CITY OF GOSNELLS [2023] WASC 48
File Number : CIV 2263 of 2021
Catchwords:
Appeal - Judicial review - Development application made by the appellant local government to itself as the responsible authority - Proposed development described as an Operations Centre and Waste Transfer Facility - Approval granted by the appellant local government to its own development pursuant to local planning scheme made under the Planning and Development Act 2005 (WA) - Application for judicial review brought by resident to set aside development approval
Planning and development - Whether development exempt from operation of local planning scheme and ordinary planning and development requirements by reason of 'public works' exemption in the Planning and Development Act 2005 (WA) and the Public Works Act 1902 (WA) - Effect of amendments to the Public Works Act 1902 (WA) made following the primary hearing - Whether necessary for the Court to address the 'public works' exemption
Planning and development - Judicial review - Whether the classification of 'uses' for the purposes of assessing a proposed development is a jurisdictional fact - Whether sufficient to accept that the classification of 'uses' was open or reasonably open to the local government decision-maker - Principles to be applied in determining classification of 'uses' for a proposed development
Planning and development - Identification of material constituting the development application and development approval having regard to statutory scheme
Legislation:
Dog Act 1976 (WA), s 11, s 26
Dogs Local Law 2020 (WA), cl 3.2(5)
Electricity Corporations Act 2005 (WA), s 35(f), s 41(i), s 50(j)
Environmental Protection Act 1986 (WA), s 31
Environmental Protection Regulations 1987 (WA), r 5, sch 1 category 67A
Interpretation Act 1984 (WA), s 3(1)(a), s 3(1)(b), s 17, s 18
Land Administration Act 1997 (WA), s 161
Land and Public Works Legislation Amendment Act 2023 (WA)
Land and Public Works Legislation Amendment Bill 2022 (WA)
Local Government Act 1995 (WA), s 2.5, s 3.1, s 3.18
Local Government Miscellaneous Provisions Act 1960 (WA), s 449
Main Roads Act 1930 (WA), s 16
Metropolitan Redevelopment Authority Act 2011 (WA), s 21
Mining Act 1902 (WA), s 120
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 60, cl 63, cl 67, cl 73, sch 2
Planning and Development Act 2005 (WA), s 3, s 4, s 5, s 6, s 69(1)(b), s 162
Port Authorities Act 1999 (WA), s 35(2), s 38(3)
Public Works Act 1902 (WA), s 2, s 11, s 96, s 99, s 122, s 123
Railway (Forrestfield-Airport Link) Act 2015 (WA), s 4
Railway (METRONET) Act 2018 (WA), s 3, s 4, s 4A, s 4B
State Administrative Tribunal Act 2004 (WA), s 31
Supreme Court (Court of Appeal) Rules 2005 (WA), r 25, r 43(2)(e)
Town Planning and Development Act 1928 (WA) (repealed), s 31, s 32
Water Corporation Act 1995 (WA), s 27(1)(c)
Result:
Application in an appeal dated 14 February 2024 to amend grounds of appeal allowed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M D Cuerden SC & D W McLeod |
| First Respondent | : | K M Pettit SC & C M Fisher |
| Second Respondent | : | No appearance |
Solicitors:
| Appellant | : | McLeods |
| First Respondent | : | Glen McLeod Legal |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
AIG Insurance Australia Ltd v McMurray [2023] WASCA 148
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1
Australian Unity Property Limited v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Bardsley-Smith v Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34
Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83; (2017) 223 LGERA 43
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
City of Swan v Taylor [2005] WASCA 88
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510
G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 101 NSWLR 1
Issa v Burwood Council [2005] NSWCA 38; (2005) 137 LGERA 221
JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Lahoud v Willoughby City Council [2024] NSWCA 163
Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Londish v Knox Grammar School [1997] NSWCA 190; (1997) LGERA 1
Lynch v Brisbane City Council (1961) 104 CLR 353
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333
Mohammadi v Bethune [2018] WASCA 98
Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160
Parramatta City Council v Hale (1982) 47 LGRA 319
PMT Partners Pty Ltd (In Liq) v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 184 CLR 301
Prichard v M 6-8 Legal Pty Ltd [2024] WASCA 4
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
R v Falzon [2018] HCA 29; (2018) 264 CLR 361
Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid v City of Gosnells [2023] WASC 48
Reid v Western Australian Planning Commission [2023] WASC 110
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305
Russell v Stephen [2013] WASCA 284
Saldanha v City of Belmont [2018] WASCA 7
Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27; (2018) 52 WAR 281
Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107
Smolarek v McMaster as administrator of EZNUT Pty Ltd [No 2] [2008] WASCA 234; (2008) BFRA 419
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
The Honourable Alannah MacTiernan MLA, Minister for Planning and Infrastructure; Ex parte McKay [2007] WASCA 35; (2007) 151 LGERA 290
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114
Transport Accident Commission v Moore [2004] VSCA 60
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187
VB v Chief Executive Officer of the Department of Communities [2020] WASCA 146
Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73
Wallis v John Holland Pty Ltd [2024] WASCA 26
Webb v Tang [2023] WASCA 119
Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; (2007) 82 ALJR 74
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
Table of Contents
Buss P & Vandongen JA
Ground 6
Introduction
The appellant's contentions
The relevant statutory scheme
The Marked Plan
The merits of ground 6
Ground 5
Ground 3
Ground 4
Grounds 1 and 2
Notice of contention
Lundberg J
Introduction and summary
Proposed Development
Judicial review proceedings
Development approval framework
Grounds of appeal
Notice of contentions
Matters arising on the appeal
First matter - the 'public work' exemption
Second matter - the 'use' classifications under TPS 6
The interaction between the first and second matters
Factual background
The Development Application
The WAPC Approval
The City's Development Approval
Grounds 1 and 2: the public work exemption
Primary Reasons
Preliminary matters
Legislative framework
The Planning and Development Act
The Public Works Act (prior to 10 August 2023)
The Public Works Act (on and from 10 August 2023)
The Local Government Act
Appellant's arguments
First respondent's arguments
Public work exemption : a consideration of its scope
Overview
Relevant principles
Section 6(1) of the PD Act and the word 'right'
The definition of 'public work' in s 4(1) of the PD Act
The definition of 'public work' in s 2 of the PW Act
Item 1 of sch 1 to the PW Act (formerly par (a) of the definition)
Item 2 of sch 1 to the PW Act (formerly par (b) of the definition)
Public work exemption : disposition
Ground 3 to 6: 'use' classifications under TPS 6
Overview
Primary Reasons
The grounds of appeal and the contentions
The relevant provisions of TPS 6
Use classifications under TPS 6: whether a jurisdictional fact
Primary Reasons
Submissions
Consideration
Conclusion
Use classifications under TPS 6 : relevant principles
Ground 3: 'civic use'
Preliminary
Submissions
Disposition
Ground 4: 'kennels' use
Preliminary
Submissions
Disposition
Ground 5: 'industry noxious' use
Proposed Ground 6: the Marked Plan
Conclusion and orders
ATTACHMENT A Regional Context Plan
ATTACHMENT B Site and Building Locality Plan
ATTACHMENT C Marked Plan
ATTACHMENT D Extract from the Public Works Act 1902 (WA) (pre-amendment)
ATTACHMENT E Extract from the Public Works Act 1902 (WA) (post-amendment)
BUSS P & VANDONGEN JA:
We have had the considerable advantage of reading the draft reasons of Lundberg J. For the following reasons we would allow ground 6 but dismiss each remaining ground of appeal. We would also dismiss the first respondent's notice of contention.
The relevant factual and procedural background, as well as the applicable statutory provisions, are set out in the reasons of Lundberg J. These reasons assume familiarity with and use the terms defined in those reasons.
This appeal is concerned with a decision made by the appellant on 21 January 2022 to approve an application made under the Planning and Development Act 2005 (WA) to develop the Wattle Grove Site. Somewhat unusually, the appellant was both the applicant and the decision‑maker in relation to the approval sought. No issue was raised before the primary judge or on appeal about that circumstance.
By grounds 3 to 6 the appellant argues that the primary judge made several errors of law, or of law and fact, in respect of findings that were critical to her Honour's conclusion that the appellant did not have the power to grant development approval for the Proposed Development. The appellant's evident purpose in pursuing grounds 3 to 6 is to obtain a ruling from this court that, contrary to the primary judge's conclusion, the appellant did have the power to grant that development approval.
Grounds 3 to 5 relate to findings made by the primary judge that the appellant did not have the power to grant development approval for the Proposed Development having regard to its proper 'classification' under TPS 6. Ground 6 raises a separate, although related, issue about the scope of the appellant's grant of development approval, and whether it extended to approving a use of the Wattle Grove Site that was not permitted by TPS 6.
Grounds 1 and 2 are not concerned with whether the appellant had the power to grant development approval for the Proposed Development. These grounds only arise for consideration if the appellant fails to establish that the trial judge wrongly decided that the appellant did not have the power to approve the Proposed Development. By grounds 1 and 2, the appellant contends that if the trial judge correctly concluded that the appellant did not have power to grant development approval for the Proposed Development, the first respondent's application for judicial review of the appellant's decision should have been dismissed in the exercise of her Honour's discretion because the remedies sought by the appellant were inutile.
Having regard to the issues raised by the grounds of appeal, it is convenient to deal with them out of order. In that regard, it is appropriate to commence consideration of the appellant's contentions with ground 6. This is because ground 6 concerns the scope of the appellant's decision to approve the Proposed Development. It will then be necessary to deal with grounds 3 to 5, before finally dealing with grounds 1 and 2.
Ground 6
Introduction
This ground is concerned with the scope of the appellant's decision to grant development approval for the Proposed Development.
The primary judge found that on 21 January 2022, the appellant granted itself development approval to engage in compost manufacturing and soil blending in the terms described in category 67A of sch 1 of the Environmental Protection Regulations 1987 (WA).[1] This was a significant finding in the context of the first respondent's claim that the appellant did not have the power to grant development approval for the Proposed Development. As Lundberg J has explained, the appellant did not have the power to approve a development with respect to the Wattle Grove Site that involved compost manufacturing and soil blending in the terms described in category 67A of sch 1 of the Environmental Protection Regulations (compost manufacturing and soil blending). This is because such a use would amount to an 'Industry - Noxious' use under TPS 6. By operation of cl 67 of the deemed provisions,[2] read with the Zoning Table in TPS 6, development approval could not be granted for that type of land use on the Wattle Grove Site.
[1] Primary reasons [315].
[2] The 'deemed provisions' are explained in the reasons of Lundberg J at [220]. They are also dealt with later in these reasons.
Her Honour's finding that the appellant gave itself development approval to engage in compost manufacturing and soil blending was based entirely on some red-coloured notations that appear on what was referred to in the primary reasons as the 'Marked Plan'. In that regard, her Honour found at [315] of the primary reasons that she considered that 'due to the red notations on the Marked Plan approved by the WAPC, the [appellant] sought, and was given, approval to engage in compost manufacturing and soil blending in the terms described in Category 67A of the Environmental Protection Regulations'.
The Marked Plan appears as Attachment C to these reasons for ease of reference. The red notations with which this ground of appeal is concerned are those that appear on the Marked Plan adjacent to that part of the plan marked 'Waste Transfer Facility Area', in an area denoted by the words 'Green Waste Grinding Location'. The red markings also include the arrow that points towards that area, as well as the words 'Proposed Location for Category 67A Green Waste Grinding Area 3, 100 m2'.[3]
[3] There are also some red markings in the legend to the Marked Plan, which appears on the far right‑hand side of the plan.
It was not in dispute that the reference in the red notations on the Marked Plan to 'Category 67A' is a reference to category 67A of sch 1 of the Environmental Protection Regulations.
The appellant's contentions
By ground 6 the appellant contends that the primary judge erred in law in concluding that by reason of the red notations on the Marked Plan, the appellant sought, and was given, development approval to use the Wattle Grove Site to engage in compost manufacturing and soil blending.
In support of its contention, the appellant relies on the decision of the New South Wales Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services,[4] and on the line of authority referred to in that case. The appellant submits that those cases establish that the content and scope of a grant of development approval depends on the terms of the approval, construed in their context and having regard to the fact that the approval has an enduring function as a public document that is intended to be relied on by persons other than just the appellant. The appellant also submits that these cases establish, as a general principle, that the content and scope of a grant of development approval may extend to documents other than the approval itself, but only to the extent that they are incorporated into the development approval expressly or by necessary implication.
[4] Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182.
The appellant also referred to the more recent case of the New South Wales Court of Appeal in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council.[5] In that case, Basten JA (Gleeson JA & Preston CJ of LEC agreeing) concluded, in the context of the Environmental Planning and Assessment Act 1979 (NSW), that it should generally be permissible to have regard to a development application for the purpose of determining the scope and nature of the proposed development for which consent was sought, if that is a matter in issue.
[5] Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147; (2019) 101 NSWLR 1.
Basten JA reached this conclusion because he considered that to do so was consistent with the relevant statutory scheme.[6] However, his Honour also noted that if it were necessary to find that the development application in that case had been 'incorporated' into the development consent, the proper conclusion was that it had been.[7]
[6] Hunter Industrial Rental Equipment [48] - [62].
[7] Hunter Industrial Rental Equipment [63].
In commenting on the cases that had considered the issue of the use that may properly be made of documents other than a council resolution granting development consent under the applicable legislation, Basten JA said:[8]
The discussion in the cases in which this issue has arisen have tended to describe any document other than the document recording the decision of the consent authority as 'extrinsic material', adopting a principle that reference can generally only be made to extrinsic material to the extent that it is 'incorporated' into the decision. This language appears to have attained the status of an established legal principle, and was deployed in argument with limited regard to the statutory scheme within which it necessarily operated.
[8] Hunter Industrial Rental Equipment [47].
Further, his Honour also conducted a comprehensive review of the relevant authorities, including Allandale Blue Metal, before concluding that:[9]
These authorities, while addressing the construction of the consent by reference to general principle, rather than the statutory scheme within which consents are sought, granted and operate, is [sic] not inconsistent with the approach adopted above. It follows that regard may, and should, be had to the terms of the development application to identify the designated development for which consent was sought.
[9] Hunter Industrial Rental Equipment [80].
In Hunter Industrial Rental Equipment, Preston CJ of LEC made similar observations about the relevant statutory scheme that applied in that case in explaining why that scheme supported the legitimacy of resorting to a development application to 'identify the nature, extent and other features of the development the subject of the development application and to which consent has been granted'.[10]
[10] Hunter Industrial Rental Equipment [296] - [298], [310].
In our view, the statutory scheme comprising the Planning and Development Act, the Planning and Development (Local Planning Schemes) Regulations2015 (WA) and TPS 6, which governed the appellant's grant of development approval for the Proposed Development, very clearly demonstrates that, subject to the qualifications we have noted at [43] ‑ [44] below, where a development approval is granted, it is the application for development approval that identifies the scope and nature of the development for which the approval is granted. To seek to identify the scope and nature of a grant of development approval made under that scheme by asking whether documents are incorporated into the approval expressly or by necessary implication is inconsistent with the statutory scheme that operated at the relevant time.
Before examining the relevant statutory provisions, it must be noted that the primary judge was not provided with the benefit of any submissions about the proper approach to be taken to identifying the scope and nature of the development approval granted by the appellant on 21 January 2022. In that regard, her Honour was not referred to the authorities to which this court was referred in the appellant's supplementary written submissions filed in support of ground 6. Further, neither party sought to deal with the issues raised by ground 6 by reference to the relevant statutory provisions, either before the primary judge or on appeal.
The relevant statutory scheme
Pursuant to s 162 of the Planning and Development Act, where a planning scheme provides that any development referred to in that scheme is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme applies unless (a) the approval has been obtained and is in force under the planning scheme; and (b) the development is carried out in accordance with the conditions subject to which the approval was granted.
For the purposes of this matter, the relevant planning scheme is TPS 6. However, TPS 6 itself does not include any provisions that require a person to make a development application, or to obtain approval, before carrying out development on land within the area covered by TPS 6. Such provisions are found elsewhere in the statutory scheme.
Pursuant to s 257B of the Planning and Development Act, provisions designated as 'deemed provisions' have effect and may be enforced as part of a local planning scheme to which they apply. Those 'deemed provisions' are set out in sch 2 of the Planning and Development (Local Planning Schemes) Regulations.[11] Pursuant to reg 10(4), those provisions are applicable to all local planning schemes (including TPS 6), whether they are or are not incorporated into the scheme text.
[11] The deemed provisions have been amended on several occasions, including after the appellant first applied for development approval and before such approval was eventually granted.
At the time the appellant first applied for development approval, cl 60 of the deemed provisions provided that:
A person must not commence or carry out any works on, or use, land in the Scheme area unless -
(a)the person has obtained the development approval of the local government under Part 8; or
(b)the development is of a type referred to in clause 61.[12]
[12] Clause 60 has since been amended, however, those amendments are not relevant to this appeal.
Accordingly, by operation of cl 60(a) of the deemed provisions, the appellant was prohibited from commencing or carrying out works on, or from using the Wattle Grove Site, for the purposes of the Proposed Development until, relevantly, it granted itself development approval under pt 8 of the deemed provisions.
Part 8 of the deemed provisions, headed 'Applications for development approval', contained various provisions concerned with the form of an application for development approval. Importantly, cl 62 made provision for how an application for a development approval 'must' be made.[13] In that regard, an application for development approval was required to be made in the form set out in cl 86(1), the form was required to be signed by the owner of the relevant land, the application had to be 'accompanied' by any prescribed fee, and (importantly) it had to be 'accompanied' by the 'plans and information specified in clause 63'.
[13] Relevantly, it must be made in the form of the 'Application for development approval' set out in cl 86(1).
It is unnecessary for the purposes of this appeal to determine whether the requirement that a development application be accompanied by the plans and information specified in cl 63 creates a condition regulating the grant of a development approval.[14]
[14] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510.
According to cl 63, an application for development approval was required to 'be accompanied by' a plan or plans in a form approved by the local government. The plans were required to show several things, including the proposed use of the site, as well as the buildings and structures to be erected on the site.
Clause 63 also stipulated that an application for a grant of development approval was also required to be accompanied by a report on any specialist studies in respect of the development that the local government required the applicant to undertake, such as site surveys or traffic, heritage, environmental, engineering, or urban design studies, as well as any other plan or information that the local government reasonably required.
After receiving the documents specified in cl 62 and cl 63 of the deemed provisions, pursuant to cl 64 the local government may be required to then advertise, or require the applicant to advertise, the application for development approval in one of several specified ways. If a development application was advertised, then the local government was required to make 'the application and the material accompanying it available for public inspection' and could also publish it on the local government's website.
Amendments were made to the deemed provisions in February 2021,[15] after the appellant made its application for development approval. In particular, cl 63A was introduced into the deemed provisions. Clause 63A now places a limit on the time local governments are allowed to make a determination about whether an application for development approval should be accepted for assessment or whether amendments to the application were required to be made before it could be accepted.
[15] Planning Regulations Amendment Regulations 2020 (WA).
Clause 63A(2) also provides that if a local government does not give the proponent of a development application written advice about whether the application has been accepted or whether an amendment is required within seven days, the application is taken to have been accepted for assessment.
At the time the appellant made its application for development approval in June 2020, cl 67 of the deemed provisions provided that in considering an application for development approval a local government was to have due regard to a wide range of matters that were identified in that provision, 'to the extent that, in the opinion of the local government, those matters [were] relevant to the development the subject of the application'.
By the time the appellant granted itself development approval in January 2022, cl 67 of the deemed provisions had also been amended.[16] While a local government was still required to have due regard to several specific considerations, cl 67(1) was inserted into the deemed provisions. Relevantly, cl 67(1) provides as follows:
(1)Development approval cannot be granted on an application for approval of -
(a)development that is a class X use in relation to the zone in which the development is located, unless -
(i)the development relates to land that is being used for a non‑conforming use; and
(ii)the local government considers that the proposed use of the land would be less detrimental than the non‑conforming use[.]
[16] Planning Regulations Amendment Regulations.
At the time the appellant granted itself development approval, cl 67(1) operated in the context of TPS 6 by reference to a 'Zoning Table', which appears in pt 3 of that scheme. Where land was in a particular zone referred to in the Zoning Table, subject to the exception in cl 67(1)(a)(i) ‑ (ii), development approval could not be granted for any of the listed classes of land use where an 'X' appeared in the table for a class of land use in respect of that zone.
In the proceedings that were conducted before the primary judge it was not in dispute that the appellant could not grant development approval for any of the listed classes of land use where an 'X' appeared in the Zoning Table.
Clause 68(2) of the deemed provisions, which remained unaffected by any amendments, provided that a local government may determine an application for development in one of three ways:
68.Determination of applications
…
(2)The local government may determine an application for development approval by -
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.
In Weston Aluminium Pty Ltd v Environment Protection Authority,[17] the High Court was required to determine whether a development consent issued under the Environmental Planning and Assessment Act 1979 (NSW) authorised a particular land use. In the course of examining the statutory provisions that were relevant to determining that issue, the court made the following observation about s 91(1) of the Environmental Planning and Assessment Act:[18]
Thirdly, in 1981, s 91(1) of the [Environmental Planning and Assessment Act 1979 (NSW)] provided that a development application was to be determined by:
''(a)the granting of consent to that application, either unconditionally or subject to conditions; or
(b)the refusing of consent to that application.''
A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought. The consenting authority responded to what was sought by granting or refusing consent and, if consent was granted, doing so either unconditionally or subject to conditions. (emphasis added)
[17] Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; (2007) 82 ALJR 74.
[18] Weston Aluminium [14].
It may be seen that s 91(1) of the New South Wales legislation under consideration in Weston Aluminium was expressed in terms that are similar to those used in cl 68(2) of the deemed provisions, although the New South Wales provision expressly referred to a grant of consent 'to that application' and cl 68(2) does not.
However, cl 73 of the deemed provisions, which is in the following terms, expressly marks out the scope of any grant of development approval:
73.Scope of development approval
Development approval may be granted -
(a)for the development for which the approval is sought; or
(b)for the development for which the approval is sought, except for a part or aspect of that development specified in the approval; or
(c)for a part or aspect of the development for which approval is sought that is specified in the approval.
It can be seen that cl 73 expressly marks out the scope of a development approval that may be granted by reference to the 'development for which approval is sought'. Significantly, development approval is sought by making an application in accordance with cl 62, 'accompanied' by the documents prescribed in cl 63.
The only extent to which the scope of a development approval may differ from the scope of a development for which approval is sought, is where approval is granted for a part or aspect of the development for which approval is sought, in the manner provided for in cl 73(b) and cl 73(c). In those circumstances, development approval may be granted for the development for which approval is sought, except for a part or aspect of the development. Further, approval may be granted for a part or aspect of the development. In either case, the terms of cl 73(b) and cl 73(c) make it clear that the relevant parts or aspects must be specified in the approval itself.
Accordingly, it is the development for which development approval is sought that will mark out the boundaries of any development approval that is granted under the relevant statutory scheme,[19] subject to anything specified in an approval granted under cl 73(b) or 73(c) of the deemed provisions. The development for which approval is sought is the development described in any application for a grant of development approval made in accordance with cl 62, and in the documents that accompany that application that are required under cl 63.
[19] This is now subject to cl 63A of the deemed provisions. Pursuant to cl 63A, a process must be undertaken to ensure that applications for development approval comply with cl 62 and cl 63 before an application for development approval is accepted.
Before examining the merits of ground 6 in light of this review of the relevant statutory scheme, it must be noted that cl 65A of the deemed provisions now provides[20] that if an application for development approval has been accepted for assessment, the local government may, by written notice given to the applicant, request the applicant to provide any further information or material that the local government reasonably requires to determine the application. Further, cl 65A(4)(d) contemplates that an applicant for development approval may submit further information and material, on their own initiative, and after an application has been accepted for assessment.
[20] Clause 65A of the deemed provisions was introduced after the original application for development approval, but before an application was approved in January 2022: Planning Regulations Amendment Regulations.
There is no evidence that the appellant requested any further information or material by written notice pursuant to cl 65A. There is certainly nothing to suggest that the Marked Plan was provided as a result of any such request. Accordingly, it is unnecessary to determine whether the boundaries of a development approval may be affected by any additional information or material provided to a local government under cl 65A after an application has been accepted for assessment, and whether that information and material forms part of a development for which approval is sought, for the purposes of cl 73 of the deemed provisions.
Before dealing with the merits of ground 6, it is also necessary to say something about the place the Marked Plan occupies in the history of this matter.
The Marked Plan
The appellant applied for a grant of development approval in accordance with TPS 6 under cover of a letter dated 24 June 2020. Copies of the application,[21] its covering letter, and the documents that accompanied the application,[22] were attached to the affidavit of Connor Martin Fisher,[23] sworn 24 November 2021.[24]
[21] The application was dated 25 June 2020.
[22] The documents that accompanied the letter were referred to in the covering letter.
[23] A lawyer employed by solicitors acting for the first respondent.
[24] Exhibit 1.
It is common ground that the documents that accompanied the application for development approval did not include the Marked Plan. However, according to Mr Fisher's affidavit, the application (or the accompanying documents) stated that the Wattle Grove Site was 'intended to be used for the storage of green waste and for processing of green waste into mulch'.[25]
[25] Exhibit 1, par 9.
The application for a grant of development approval was given an 'Application Number', 'DA20/00317'. After the application was received it was given 'initial consideration by the appellant's relevant technical assessment team', on 24 June 2020.[26]
[26] Affidavit of Christopher Bruce Terelinck sworn 24 January 2022 (Exhibit 4), par 5.
Based on Mr Terelinck's evidence, at an early stage in the development application process, officers employed by the appellant had been discussing the Proposed Development with the WAPC.[27] In that context, but for reasons that do not need to be explored in any detail, the appellant made a separate application to the WAPC for planning approval under the MRS on or about 6 July 2020.[28] According to Mr Fisher's affidavit, the plans attached to the application for development approval under the MRS were the same plans that were 'attached to' the application for a grant of development approval the appellant had made under TPS 6 in June 2020.[29]
[27] Exhibit 4, par 11.
[28] Exhibit 1, par 12 and 'CMF-4'. The application form itself was dated 6 July 2020. However, Mr Fisher's evidence was that the application was lodged on 7 July 2020 (Exhibit 1, par 12). Further, the Agreed Facts provided that the appellant forwarded the application to the WAPC for determination by letter dated 3 July 2020.
[29] Exhibit 1, par 12.
In his affidavit, Mr Terelinck also said that the application for a grant of development approval made on 24 June 2020 was 'held over pending the determination of the application under the MRS'.[30] At that time, local governments were not required adhere to the time limit that now applies under cl 63A of the deemed provisions.[31]
[30] Exhibit 4, par 21.
[31] Clause 63A commenced operation on 15 February 2021: Planning Regulations Amendment Regulations, s 2(c).
According to the Agreed Facts, after the appellant made its application to the WAPC, the WAPC then 'called in' the appellant's application for a grant of development approval, pursuant to cl 32(1) of the MRS. The Agreed Facts stated that the WAPC 'called in' the development application 'on the expressed [sic] basis that it would be in the public interest that a decision under the MRS on the [development application] be made by the WAPC rather than by the [appellant] under delegation'.[32]
[32] Agreed Facts, par 17.
It is not necessary to deal with the legislative basis on which the development application was 'called in' by the WAPC. It is enough to note that it was common ground that any approval given by the WAPC would not have constituted an approval under TPS 6. In any event, the WAPC refused to approve the development application under the MRS.
After the WAPC communicated to the appellant its decision to refuse to approve the development application, the appellant then sought a review of the WAPC's decision in the State Administrative Tribunal (SAT). While the application for a review in the SAT was still on foot there was a mediation, after which the WAPC was directed by the SAT to reconsider its refusal to approve the development application under the MRS.
The appellant provided additional information to the WAPC to assist with its reconsideration of the development application under the MRS. Part of that information included a 'Planning Report, Development Application - Proposed Operations Centre and Waste Transfer Facility', prepared by the appellant. Attached to that report were various documents, including a plan marked 'Site Bund and Greenwaste Plan (Rev A)'. This was the plan the primary judge referred to as the 'Marked Plan'.[33]
[33] Primary reasons [292].
The WAPC gave its approval to the development application under the MRS on 11 August 2021. In that approval, the WAPC said:
Pursuant to Section 31 of the State Administrative Tribunal Act 2004, the Statutory Planning Committee resolves to reconsider its decision and approve the use and development of Lot 242 Kelvin Road and Lots 3, 4, 48, 49, 239, 241 and 500 Brock Street, Orange Grove for the City of Gosnells Operations Centre and Waste Transfer Facility as set out in the application dated 7 August 2020 and City of Gosnells Planning Report dated 1 April 2021 in accordance with plans 10381 A01-B - 10381-A010-B and 10381-A026-C (attached), subject to the following conditions. (emphasis added)
Accordingly, the WAPC approved 'the use and development' of the Wattle Grove Site 'as set out in' various documents that were attached to the approval. The primary judge found that the reference in the WAPC approval to a plan '10381-A026-C' was a typographical error, and that it should have referred to plan '10381-A02b-C'. The primary judge also found that plan '10381-A02b-C' was the Marked Plan, that this plan was attached to the WAPC approval, and that it had been stamped as having been approved by the WAPC on 3 August 2021.[34]
[34] Primary reasons [307] - [308].
According to the Agreed Facts, on 14 September 2021 the appellant authorised its Chief Executive Officer to determine all development applications that required the approval of the WAPC and the appellant, where relevant consultation had been undertaken and where the application had been determined by the WAPC.[35]
[35] Agreed Facts, par 31.
Although Mr Fisher's affidavit said that the appellant's Chief Executive Officer approved the development application on 28 September 2021,[36] the evidence before the primary judge clearly established that it was Mr Terelinck who purported to approve the application pursuant to a sub‑delegation from the Chief Executive Officer.
[36] Exhibit 1, par 23.
Attached to Mr Fisher's affidavit was 'CMF-12', which was a copy of a letter to the appellant signed by Mr Terelinck on 18 October 2021, in which he advised the appellant that its application for a grant of development approval had been considered and approved. The letter also stated that a 'Notice of Determination on Application for Development Approval' was attached.
A copy of that notice, signed by Mr Terelinck on 18 October 2021, but noting that the determination had previously been made on 28 September 2021, referred to the application number 'DA20/00317' and to the date on which that application had been made, namely, 25 June 2020. It also contained several conditions and 'advice notes' that were in terms that effectively mirrored the conditions and advice notes set out in the WAPC approval.
Neither the notice of determination nor the letter signed by Mr Terelinck referred to any plans that accompanied the application for the grant of development approval.[37] However, several plans formed part of 'CMF‑12' that was attached to Mr Fisher's affidavit. Mr Fisher's evidence was that these plans were 'the approved development plans'.[38]
[37] The notice referred to a 'landscaping plan', a 'dust management plan', a 'noise management plan' and an 'odour management plan'. However, the notice provided that the development approval was conditional upon the appellant obtaining each of those plans.
[38] Exhibit 1, par 23.
There were 14 plans that formed part of 'CMF-12'. Each of them was stamped in the following manner:
CITY OF GOSNELLS
DEVELOPMENT SERVICESDA20/00317 has been APPROVED
in accordance with any condition(s) attached and
any annotation(s) shown in red on the plan(s)
(if applicable)Decision Date: 28/09/2021
Page [x] of 14
Although the stamps referred to 'annotation(s) shown in red on the plan(s)', the Marked Plan was not amongst the 14 stamped plans.[39]
[39] See also, primary reasons [309].
As it turned out, Mr Terelinck did not have the power to approve the appellant's application for a grant of development approval. This meant that the application had to be referred to the appellant's Chief Executive Officer, who then approved it by Notice of Determination on Application for Development Approval dated 21 January 2022 (January 2022 Notice of Determination).
The January 2022 Notice of Determination referred to 'Application Number' DA20/00317 and described the Proposed Development as an 'Operations Centre and Waste Transfer Facility'. It also referred to the date on which the application for a grant of development approval was made, namely 25 June 2020. However, other than setting out the same conditions and 'advice note(s)' that were in the notice of determination previously signed by Mr Terelinck, the January 2022 Notice of Determination did not contain any other details about the development that was approved.
There was no evidence before the primary judge as to whether the plans referred to in Mr Fisher's affidavit as 'the approved development plans' were subsequently stamped as having also been approved by the Chief Executive Officer on or about 21 January 2022. However, in all the circumstances, the only reasonable conclusion is that by giving his approval on 21 January 2022, the Chief Executive Officer also approved the same plans. In that regard, the unchallenged evidence of Mr Terelinck was that after he accepted that his approval of the development application was a 'nullity', 'the matter was referred to the Chief Executive Officer and considered by him over the period 19, 20 and 21 January 2022'.[40]
[40] Exhibit 4, par 24.
Against that background, it is then necessary to consider the merits of ground 6.
The merits of ground 6
The starting point is to emphasise that the development approval with which this case is concerned is the approval that was granted by the appellant's Chief Executive Officer in the January 2022 Notice of Determination.
As we have already explained, the primary judge concluded that the appellant granted development approval for it to engage in compost manufacturing and soil blending at the Wattle Grove Site. This conclusion was based entirely on the red-coloured notations that appear on the Marked Plan.
In that regard, the primary judge made the following relevant findings:[41]
I also consider that, due to the red notations on the Marked Plan approved by the WAPC, the [appellant] sought, and was given, approval to engage in compost manufacturing and soil blending in the terms described in Category 67A of the Environmental Protection Regulations. The Marked Plan formed part of the [appellant's] application, was stamped as approved by the WAPC, and was expressly referred to in the WAPC's Notice of approval. Indeed, the Notice stated that the WAPC approved the use and development of the Site 'as set out in' the MRS Form and the City Planning Report 'in accordance with' identified plans, one of which was the Marked Plan.
[41] Primary reasons [315].
The primary judge's reasons suggest that these findings were based, to a very significant extent, on her Honour's perceptions about the way in which the parties had conducted the case before her. In that regard, when referring to the Agreed Facts and to the evidence, the primary judge said:[42]
Further, although not bolded in the Agreed Facts, the parties used 'the City Development Application' (emphasis in primary reasons) to refer to both the [appellant's] application to itself and its application to the WAPC. Although the [appellant] filed different forms in seeking the two approvals, none of the parties suggested that there was any difference in what the [appellant] sought to have approved or what was approved by the two approvals. (emphasis added)
[42] Primary reasons [276].
Later, when setting out her conclusions about what had been approved by the appellant, the primary judge noted that:
(a)the appellant did not 'contend that the Marked Plan was relevant only to the WAPC development approval and was not relevant to the [appellant's approval]'; and
(b)the appellant did not 'contend that there was any difference in what the [appellant] sought to have approved and what was approved by the two approvals'.[43]
[43] Primary reasons [311].
Her Honour also observed that the appellant 'accepted … that what was recorded on the Marked Plan accurately reflected the things that the [appellant] was seeking to get approval to put on the land, although it said it accepted this "[o]nly in the sense that they are what is intended to be included in the operation centre"'.[44]
[44] Primary reasons [312].
In our view, the primary judge received no assistance from the parties in identifying that the question to be resolved was whether the Marked Plan formed part of or accompanied the application for development approval that was granted on 21 January 2022. Unfortunately, as her Honour's reasons demonstrate, that question was never addressed.
In the context of the statutory scheme as we have explained it, and on the assumption that the red-coloured notations that appeared on the Marked Plan did in fact describe a proposed use of the Wattle Grove Site,[45] the critical question for the purposes of ground 6 is whether the Marked Plan formed part of the application for development for the purposes of cl 62 of the deemed provisions, or whether it 'accompanied' that application for the purposes of cl 63 of those provisions.
[45] The terms of ground 6 suggest that the appellant also challenges the trial judge's conclusion that the appellant sought, and was given, approval to use the Wattle Grove Site for compost manufacturing and soil blending on the basis that the Marked Plan was a 'site plan' and not a 'land use plan'.
As there was no relevant agreed fact about that matter, the question of whether the Marked Plan formed part of or accompanied the application for development approval that was granted on 21 January 2022 was required to be resolved on the basis of the evidence that was before the primary judge.
In our view, the evidence comfortably establishes that the Marked Plan did not form part of or accompany the application for development approval that was granted, within the meaning of cl 63 or cl 64 of the deemed provisions.
The unchallenged evidence of Mr Fisher, to which reference has already been made, establishes that the appellant made only one application for a grant of development approval in accordance with the scheme established under the Planning and Development Act. That was the application, made under cover of a letter dated 24 June 2020, and formally made in a form prescribed for the purposes of cl 62 of the deemed provisions, together with the other documents that were also attached to that letter. According to the record of the planning proposal, which was attached to Mr Terelinck's affidavit as 'CBT 1', the application was assigned a number, 'DA20/00317'.[46]
[46] Exhibit 4, par 5 and 'CBT 1'.
Importantly, Mr Fisher's unchallenged evidence established that the Marked Plan did not form part of or 'accompany' application DA20/00317.
Based on the affidavits of Mr Fisher and of Sally Patricia Grebe[47] (the Director Planning Appeals, employed by the Department of Planning, Lands and Heritage), and the Agreed Facts, the application for development approval, DA20/00317, was 'called in' by the WAPC on 2 October 2020. After that application was refused by the WAPC under the MRS, the appellant sought a review of that decision in the SAT. When the SAT then required the WAPC to reconsider its decision, the appellant provided further information to the WAPC. That further information included the Marked Plan.[48] Further, and as has already been explained, the Marked Plan was one of the plans ultimately approved by the WAPC under the MRS.
[47] Affidavit of Sally Patricia Grebe affirmed on 24 January 2022 (Exhibit 2).
[48] Exhibit 2, par 16(j) and 'SG14'. See also, primary reasons [292].
In that context, the first respondent argued before the primary judge that the Marked Plan was the only plan that could have been approved by the appellant because it was one of the plans that was approved by the WAPC.[49]
[49] ts 226, 241, 250 - 251.
However, the scope and nature of the appellant's application for a grant of development approval under the MRS that was made to the WAPC, the fact that that the appellant provided the Marked Plan to the WAPC reconsidering the application, and the fact that the Marked Plan was ultimately approved by the WAPC are all matters that are completely irrelevant to the question of whether the Marked Plan formed part of or accompanied the application for development approval that was granted on 21 January 2022. The appellant's dealings with the WAPC were not capable of, in effect, constituting a fresh application for development approval.
There was also no evidence before the primary judge that the appellant made any other application for a grant of development approval under the scheme established by the Planning and Development Act between 24 June 2020 and the eventual grant of development approval on 21 January 2022.
Further, there was nothing in the January 2022 Notice of Determination, or in the Chief Executive Officer's covering letter, that suggested that the grant of development approval made on 21 January 2022 related to anything other than the development for which approval was sought on 25 June 2020 in DA20/00317. On the contrary, the evidence established that the Chief Executive Officer acted in accordance with cl 73(a) of the deemed provisions by granting development approval 'for the development for which the approval is sought', namely the development described in 'DA20/00317'.
That the grant of development approval made on 21 January 2022 was not concerned with a different application for grant of development approval that was accompanied by the Marked Plan, is supported by the fact that the Marked Plan was not among the 14 stamped plans referred to at [60] and [61] of these reasons that were ultimately approved by the appellant.[50]
[50] We note that not all of the 14 stamped plans formed part of or accompanied the application made in DA20/00317. However, it was never argued that the grant of development approval made on 21 January 2022 was invalid because it gave approval to a development other than the development for which approval was sought on that basis. See also footnote 70.
Accordingly, we are of the view that the primary judge erred in concluding that, due to the red-coloured notations on the Marked Plan that was approved by the WAPC, the appellant sought, and was given, approval to engage in compost manufacturing and soil blending.
In written submissions filed with leave after the hearing of the appeal, the first respondent submitted, in effect, that the appellant's application to amend its grounds of appeal to include ground 6 should be refused. In that regard, the first respondent argued that the application to amend the grounds of appeal caused prejudice because had the issue raised by ground 6 been raised earlier then further documents could have been included in the appeal books.
The first respondent also argued that ground 6 raised an issue that was not litigated before the primary judge. The first respondent submitted that the parties proceeded at the hearing before the primary judge on the shared assumption that the Marked Plan was the document that assembled all uses in respect of which the appellant sought, and then gave, development approval. In that context, the first respondent argued that had the appellant purported to 'disown' the Marked Plan at the hearing before the primary judge, then the first respondent could have made submissions about the affidavits on which the appellant relied. The first respondent also argued that it 'could have made further inquiry as to the provenance of the Marked Plan and the [appellant's] acceptance of it, and possibly the [appellant's] incapacity to avoid it, which may have led to cross-examination of [the appellant's] deponents'.[51]
[51] First respondent's answer to appellant's further submissions (29 February 2024), par 20 ‑ 23.
The court has access to all the exhibits that were tendered in the proceedings before the primary judge. To the extent that the first respondent would have included further documents in the appeal books, the appellant did not object to the court receiving those documents in any event. Accordingly, the first basis on which the first respondent sought to resist the application to amend the grounds of appeal must be rejected.
The question of whether the application to amend should be refused on the second basis relied on by the first respondent must also be rejected.
It was common ground that the Marked Plan did not accompany the application for development approval that was granted on 21 January 2021. Accordingly, having regard to our reasons for concluding that the primary judge fell into error, any shared assumption that the Marked Plan was the document that assembled all uses in respect of which the appellant sought, and then gave, development approval, was misplaced.
Further, any enquiries the first respondent might otherwise have made about the provenance of the Marked Plan and the appellant's 'acceptance' of it, could not have affected the conclusion that the Marked Plan did not form part of or accompany the application for development approval that was granted on 21 January 2021.
Accordingly, we would allow the appellant's application to amend ground 6. We would also allow ground 6.
As we have said, the Marked Plan was the only basis on which the primary judge found that the appellant granted itself development approval to engage in compost manufacturing and soil blending. Because we have concluded that the primary judge erred in reaching that finding, it necessarily follows that her Honour's conclusion that the appellant fell into jurisdictional error in granting development approval in respect of that use was also erroneous.
However, and as will be seen, we are of the view that the balance of the grounds of appeal must be dismissed. This means that although the appellant has been successful in the context of ground 6, that success can have no effect on the primary judge's orders.
Further, and for the avoidance of doubt, it should not be concluded that because we would allow ground 6, the appellant will then be permitted to engage in green waste grinding on the Wattle Grove Site. In that regard, in allowing ground 6 we have not determined whether green waste grinding amounts to compost manufacturing and soil blending in the terms described in category 67A of the Environmental Protections Regulations, or whether it would be an 'Industry-Noxious' use under TPS 6 and therefore a prohibited use at the Wattle Grove Site.
Ground 5
By ground 5 the appellant contends that the primary judge erroneously found that the green waste grinding facility was properly classified as an 'Industry - Noxious' use and that it was therefore a prohibited land use for the purposes of TPS 6. Having regard to our conclusion in relation to ground 6, it is strictly unnecessary to determine this ground. In any event, ground 5 must be dismissed because it challenges a finding that the primary judge did not in fact make.
The primary judge found that the appellant had sought, and then obtained a grant of development approval which purported to allow it to engage in an 'Industry - Noxious' use, because it approved compost manufacturing and soil blending.[52] It was on this basis that her Honour found that the appellant had fallen into jurisdictional error because it had given itself approval to use the Wattle Grove Site for a use that was not permitted by TPS 6.
[52] Primary reasons [315], [321], [359], [365].
However, and contrary to the premise of ground 5, the primary judge did not determine whether the green waste grinding facility the appellant wanted to provide for on the Wattle Grove Site was an 'Industry - Noxious' use. Whether the facility the appellant intended to provide for was an 'Industry - Noxious' use under TPS 6 was beside the point. What the primary judge found was that the appellant had been granted development approval to engage in compost manufacturing and soil blending in the terms described in category 67A of sch 1 of the Environmental Protection Regulations (an 'industry-noxious' use). Her Honour made that finding because she considered that was the effect of the red-coloured notations that appeared on the Marked Plan.
It follows that it is of no consequence that there may have been evidence, unchallenged or otherwise, that the appellant has not, does not and will not engage in compost manufacturing and soil blending. That evidence was incapable of rationally affecting, directly or indirectly, the primary judge's assessment of whether the appellant had decided to grant development approval for the Wattle Grove Site to be used for such a purpose.
Ground 5 must be dismissed.
Ground 3
The appellant argued at first instance that the Proposed Development was a permitted use under TPS 6 because it constituted a single use, or multiple uses, each falling within the land use definition of 'civic use' that appears in the Dictionary of Defined Words and Expressions in sch 1 of TPS 6.
That definition was in the following terms:
[P]remises used by a government department, an instrumentality of the Crown, or the local government, for administrative, recreational or other purposes.
The appellant contended before the primary judge that, for various reasons, the whole of the Proposed Development constituted premises that satisfied this definition. As will be seen, the primary judge rejected that contention.
On appeal, the appellant argues that the primary judge erred in her approach to the question of whether the Proposed Development was a 'civic use' for the purposes of TPS 6. In particular, the appellant contends that questions about whether an activity falls within a land use classification under TPS 6, and whether an activity is permissible as being incidental to a use classification, involve issues of fact and degree about which reasonable minds may differ. Accordingly, the appellant argues that the relevant question for the primary judge was not whether the Proposed Development was within the civic use classification for the purposes of TPS 6, but whether it was open to the appellant to have reached that conclusion.
In support of those contentions, the appellant relies on Lizzio v Ryde Municipal Council;[53] Re Minister for Planning; Ex parte City of Canning;[54] and Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd.[55] However, as Lundberg J has pointed out, there is now a line of authority, commencing with Woolworths Ltd v Pallas Newco Pty Ltd,[56] that suggests that the appellant's approach to this ground of appeal is misconceived.
[53] Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211, 216 ‑ 217.
[54] Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284, 287, 290, 296.
[55] Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431 [48], [58] ‑ [59].
[56] Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707.
The question of whether a decision about the proper classification of a land use under a town planning scheme is a jurisdictional fact for the purposes of a grant of development approval under the statutory scheme under the umbrella of the Planning and Development Act turns on a question of statutory construction. However, the court did not receive any submissions about that issue by reference to the relevant statutory provisions. The parties also did not refer to, or have the opportunity to address the court about the application of Pallas Newco in the context of the statutory scheme under which the appellant granted development approval on 21 January 2022.
In those circumstances, it would be inappropriate to determine this ground on the basis that it is misconceived, as Pallas Newco appears to suggest.
The primary judge ultimately found, in effect, that the whole of the Proposed Development was not a 'civic use'. In that regard, her Honour concluded, firstly, that the phrase 'or other purposes' used in the meaning of the land use 'civic use', is constrained by the words 'administrative' and 'recreational'. However, her Honour found it was unnecessary to determine the extent to which the phrase 'or other purpose' is so constrained. Secondly, her Honour found that the Proposed Development would permit, among other things, compost manufacturing and soil blending, and a kennel, and that a 'civic use' did not capture those uses, having regard to the definition of 'civic use', the context of TPS 6 and the Planning and Development Act.
In our view, the primary judge was correct to conclude that the whole of the Proposed Development was not a civic use. We are also of the view that it was not open to the appellant to have reached a conclusion that it was a civic use. Given our conclusion in relation to ground 6, it is appropriate that we explain why we have reached that view on the assumption that the only land use the appellant approved that was not permitted under TPS 6 was a 'kennels' use.
Whether the appellant did approve a 'kennels' use is the subject of ground 4. As will be seen, we are of the view that ground 4 must be dismissed.
As senior counsel who appeared at the hearing of the appeal accepted,[57] the appellant conducted its case before the primary judge on the basis that the whole of the Proposed Development was a 'civic use' because, having regards to the definition of that land use in TPS 6, the Wattle Grove Site was to be used by the appellant for 'other purposes'.[58] In that regard, the appellant did not rely on that part of the definition of 'civic use' that is concerned with uses for 'administrative' and 'recreational' purposes.
[57] Appeal ts 29.
[58] Primary reasons [253].
However, at the hearing of the appeal, senior counsel for the appellant raised two new arguments.
Firstly, he appeared to argue that it was open to the appellant to decide that the whole of the Proposed Development was a 'civic use' because the Wattle Grove Site was to be used by the appellant for administrative purposes. Senior counsel submitted, in that regard, that the word 'administrative' has a broader meaning than a clerical or office‑based activity. He submitted that it means activities directed to the administration of the local government and its functions.[59]
[59] Appeal ts 29.
Secondly, senior counsel appeared to contend that the animal facility was 'ancillary' to a 'civic use' and therefore did not constitute a separate land use. By the use of the word 'ancillary', it appeared that senior counsel was contending that development approval was not required for the animal facility because it was 'incidental' to the 'civic use' component of the Proposed Development.
Although senior counsel did not develop this submission to any significant degree, he appeared to be relying on what has been said elsewhere to amount to an 'established planning law concept that an incidental, ancillary or subordinate activity to a dominant land use is not in itself a land use requiring development approval' but is considered to be part and parcel of the primary use.[60]
[60] G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9 [17] (Parry DCJ). See also, Lizzio (Gibbs CJ, Murphy, Wilson & Brennan JJ agreeing).
In our view, none of the appellant's contentions should be accepted.
The operation of cl 3.4.1 of TPS 6 is critical to the determination of this ground of appeal.
Clause 3.4.1 appears in pt 3.4 of TPS 6, which is entitled 'Interpretation of the Zoning Table', and is in the following terms:
Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
As can be seen, cl 3.4.1 plays an important role in the proper construction of the definitions of the various land uses that appear in the Zoning Table. Pursuant to cl 3.4.1, where general terms are used to describe a land use that is mentioned in the Zoning Table, all other specific land uses also mentioned in that table are excluded from those general terms. Accordingly, cl 3.4.1 restricts or cuts back the otherwise potentially broad reach of the more general terms used to define land uses, by excluding from those general terms the specific land uses mentioned in the Zoning Table that might otherwise have fallen within those terms.
The evident purpose of cl 3.4.1 is to ensure that where the Zoning Table provides that specific uses are prohibited in specific Zones, that prohibition will be maintained even if those land uses might otherwise fall within the more general terms used to describe other land uses.
Importantly, in the context of this case cl 3.4.1 deems that all the specific land uses mentioned in the Zoning Table are excluded from the general terms used to describe a 'civic use'. In that regard, general terms are used in the definition of 'civic use'. The words 'or other purposes' are of the most general nature. The terms 'administrative' and 'recreational' are also very general terms. Indeed, the appellant's submission that the word 'administrative' should be construed in a broad sense to extend to administration of the local government area and functions, supports rather than detracts from that conclusion.
There is no question that 'kennels' use is a specific land use mentioned in the Zoning Table. It is a use concerned with 'any land or buildings used for the boarding, keeping and/or breeding of more than two dogs'. See the definition of 'kennels' in sch 1 of TPS 6. It is deemed under cl 3.4.1 of TPS 6 to be excluded from the terms 'administrative, recreational or other purposes' that are used in the definition of 'civic use'.
Accordingly, on the assumption that the primary judge was correct to find that the Proposed Development involved a 'kennels' use, she was also correct to find that the whole of the Proposed Development was not a 'civic use' for the purposes of TPS 6. She was also correct to conclude that it followed that the Proposed Development was not capable of being approved.
The primary judge found that the animal facility that formed part of the Proposed Development could not sensibly be described as an activity that would be incidental to a 'civic use'. Her Honour concluded that this use was properly characterised as a separate use.[61] Her Honour's reasons for reaching that conclusion were as follows:[62]
However, I consider that other activities cannot be characterised as simply part of a broad Civic Use. By their very nature, I consider that the animal facility, green waste grinding and waste transfer facility cannot be so characterised.
The animal facility is intended to be a substantial building with exercise yards, covering 280 m2. While it is intended to hold a maximum of 10 dogs, it will be able to accommodate 22 dogs. It is likely to have a very different impact on local amenities and the environment to the activities associated with the administration and internal management of the local government. There may be smell and incessant barking.
[61] Primary reasons [322] ‑ [323].
[62] Primary reasons [318] ‑ [321].
None of the grounds of appeal challenge these findings. This necessarily means that the appellant's contention that the primary judge erred in failing to find that the grant of development approval for the animal facility was not required because it was 'ancillary' or 'incidental' to the Proposed Development must be rejected.
In any event, we are of the view that the primary judge was correct to find that the animal facility was not incidental to a 'civic use' for the same reasons her Honour gave.
Ground 3 must be dismissed.
Ground 4
As has been seen, the primary judge found that the animal facility formed part of the Proposed Development and that it constituted a 'kennels' use under TPS 6.[63] This was a significant finding because under TPS 6, a 'kennels' use was a land use that was not permitted in the zone in which the Wattle Grove Site is located. A 'kennels' use was permitted in only one of the zones provided for in the Zoning Table in TPS 6, namely the 'Kennel Zone'.
[63] Primary reasons [336].
By ground 4, the appellant contends that her Honour's finding that the animal facility constituted a 'kennels' use was erroneous.[64]
[64] Somewhat curiously, the appellant did not argue that the primary judge erred in determining for herself whether the animal facility was a 'kennels' use as the appellant argued in the context of ground 3.
The success of ground 4 turns on the proper construction of the definition of the 'kennels' land use, which appears in the Dictionary of Defined Words and Expressions in sch 1 of TPS 6. That definition is in the following terms:
[A]ny land or buildings used for the boarding, keeping and/or breeding of more than two dogs.
Before dealing with the proper construction of the definition of 'kennels' use, it is necessary to summarise the primary judge's relevant findings of fact. In that regard, her Honour made the following findings:
(a)The City was seeking, and obtained, approval to put in a facility that would house dogs.[65]
(b)The animal facility is intended to be a substantial building with exercise yards, covering 280 square metres. While it is intended to hold a maximum of 10 dogs, it will be able to accommodate 22 dogs. It is likely to have a very different impact on local amenities and the environment to the activities associated with the administration and internal management of the local government. There may be smell and incessant barking.[66]
[65] Primary reasons [314].
[66] Primary reasons [319].
In arriving at a conclusion that the animal facility amounted to a 'kennels' use, the primary judge also referred to evidence that established that materials provided by the City to the WAPC for its reconsideration of the City's Application included a 'Pound and Waste Transfer Facility - Plans' (Animal Facility Plan).[67] According to her Honour, that plan showed three sections of what were labelled 'kennels': 'Kennel 1' contained 4 kennels, 'Kennel 2' contained 14 kennels and 'Quarantine' contained 4 kennels. There were also three exercise yards attached to the building, and it was also to include various staff facilities.[68]
[67] The primary judge referred to this plan as the 'Animal Facility Plan'.
[68] Primary reasons [303], [326].
None of these findings are challenged by any of the grounds of appeal. However, having regard to our conclusion in relation to ground 6, the primary judge ought not to have made findings about the scope and nature of the development approval granted on 21 January 2022 by reference to the materials that were put before, or produced by, the WAPC as part of the process by which the WAPC reconsidered the appellant's application for development approval under the MRS. Those documents did not form part of, and did not accompany, the application for development approval that was granted on 21 January 2022.
Nevertheless, as the primary judge noted,[69] the plans that were approved as part of the appellant's decision to grant development approval, which we referred to in the context of ground 6, included the Animal Facility Plan. Accordingly, the fact that the primary judge erroneously relied on an identical document that was put before the WAPC is not material to the outcome of this ground of appeal.[70]
[69] Primary reasons [309].
[70] It must be noted that according to the evidence of Mr Fisher and Mr Terelinck, only three of the 14 plans approved by the appellant on 21 January 2021 accompanied the application for development approval made on 25 June 2020, even though all but one of the 14 plans were dated 24 June 2020 or earlier and were marked as 'issued for DA'. One of the plans was dated May 2020 and appeared to have been forwarded to 'Planning\Operations Centre' on 3 June 2020. However, none of the parties suggested that the decision to grant development approval on 21 January 2022 was infected by jurisdictional error because the appellant did not grant development approval for the development for which approval was sought on that basis.
The primary judge also relied on a 'WAPC Reconsideration Report' which noted that the Proposed Development was to include 'a 280m2 dog pound building for a maximum of 10 dogs (able to accommodate 22 dogs) and administration building'.[71] However, the parties did not contest this case on the basis that the animal facility would not accommodate more than two dogs.
[71] Primary reasons [327].
Her Honour ultimately found that keeping dogs in the manner proposed in the application for a grant of development approval that was approved by the appellant would constitute a 'kennels' land use under TPS 6.[72] As it was never suggested that the animal facility was to be used for boarding or for breeding dogs, her Honour reached that conclusion based on what she considered to be the ordinary meaning of the word 'keeping'.
[72] Primary reasons [335].
The appellant's sole argument on appeal is that the word 'keeping', when used in the definition of the 'kennels' land use, means 'to have habitually in stock or for sale'.[73] The appellant contends that this is because to 'keep' two or more dogs, for the purposes of a 'kennels' land use, the dogs must be kept for some commercial purpose. The appellant argues that as the animal facility that formed part of the Proposed Development that it approved was not for any commercial purpose, the primary judge was wrong to hold that it constituted a 'kennels' use.
[73] This definition appears as one of 32 separate meanings of the word 'keep' in the Macquarie Dictionary.
It must immediately be noted that this argument was not made to the primary judge. As recorded at [331] of her Honour's reasons, the appellant contended at first instance that the proposed animal facility that it had approved would not amount to a use that involved 'keeping' more than two dogs because 'keeping' dogs meant keeping them 'for their own sake, rather than being kept as prisoners'. In making this argument, the appellant was evidently attempting to avoid a finding that more than two dogs would be 'kept' at the proposed animal facility, and that it would therefore constitute a 'kennels' use, because the facility was, in effect, proposed to be a pound.
In support of the new argument it put on appeal, the appellant makes three points.
Firstly, it says the immediate context in which the word 'keeping' is used suggests that the dogs must be 'kept' for a commercial purpose. In that regard, the appellant points to the fact that the words 'boarding' and 'breeding' are words that have a commercial connotation.
Secondly, the appellant draws attention to the fact that the only land within the area covered by TPS 6 where a 'kennels' use is a permitted use, is land within the Kennels Zone. In his written submissions, senior counsel drew attention to cl 3.2 of TPS 6, highlighting that it provides that the objectives of the Kennels Zone are to 'provide for dog kennels in appropriate locations, to meet the needs of the community with respect to animal boarding and commercial animal breeding' (emphasis in original).
Thirdly, the appellant says that if 'keeping' is to be given its ordinary meaning then it would render 'boarding' and 'breeding' otiose, because both 'boarding' and 'breeding' would amount to 'keeping' in any event.
This context is important having regard to the appellant's reliance on s 17 of the Interpretation Act 1984 (WA) (Interpretation Act). That provision indicates that the words 'or', 'other' and 'otherwise' shall be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added. As with all provisions of the Interpretation Act, this provision is subject to any expression provision in a written law to the contrary, or in the case of subsidiary legislation (such as TPS 6), subject to the intent and object of the Act under which the subsidiary legislation is made is inconsistent with such application.[375]
[375] Interpretation Act, s 3(1)(a), s 3(1)(b).
It is apparent that, by cl 3.4.1 of TPS 6, express provision has been made to the contrary for the purposes of s 3(1)(a), such that the phrase 'other purpose' may be construed, in context, as implying similarity with the words which precede it. That is, the legislative presumption in s 17 of the Interpretation Act is displaced.
The search for the meaning of the definition may then proceed having regard to the ordinary tools of construction, including, where applicable, the use of maxims of construction. The primary judge approached the matter on this basis, as I have noted above, and concluded that the ejusdem generis rule ultimately assisted in the exercise of construction. I respectfully agree.
The words 'or other purposes' should be read ejusdem generis with the reference to 'administrative' and 'recreational' in the definition, so as to be confined thereto. To approach the concluding words of the definition as being unconstrained would, as the primary judge correctly observed, give the local government in question the ability to approve its own development applications for extreme uses and would largely render the use of the terms 'administrative' and 'recreational' as redundant. That would be an unlikely construction of the provision, in my view.
Her Honour's approach to the construction of the term 'civic use' was correct, in my view, and no error has been demonstrated in this regard. The whole of the Proposed Development was not able to be approved as a 'civic use' under TPS 6. Properly construed, the whole of the Proposed Development was not able to be classified under TPS 6 as being only for 'administrative' or 'recreational' or other similar purposes.
Ground 3 must be dismissed.
Ground 4: 'kennels' use
Preliminary
The primary judge concluded that the animal holding facility forming part of the Proposed Development would be classified as a 'kennels' use, being a prohibited use in every zone under TPS 6 except a 'Kennels Zone'.[376]
[376] Primary Reasons [335] - [336].
By ground 4, the appellant contends the primary judge erred in law in this regard. The appellant's arguments on appeal focus on the proper construction of the definition of 'kennels' in TPS 6, which is defined to mean[377]
any land or buildings used for the boarding, keeping and/or breeding of more than two dogs[.]
[377] TPS 6, sch 1, item 2.
Before examining the construction arguments, the factual context as found by the primary judge should be clarified. Her Honour summarised the evidence as follows:[378]
[326]The additional materials provided by the City to the WAPC for its reconsideration of the City's Application included the Animal Facility Plan. As noted earlier, the Animal Facility Plan showed three sections of what were labelled 'kennels': 'Kennel 1' contained 4 kennels, 'Kennel 2' contained 14 kennels and 'Quarantine' contained 4 kennels. There were also three exercise yards attached to the building. The building was also to include various staff facilities.
[327]The WAPC Reconsideration Report noted that the Proposed Development was to include 'a 280m2 dog pound building for a maximum of 10 dogs (able to accommodate 22 dogs) and administration building'.
[378] Primary Reasons [326] - [327].
The primary judge made reference to the affidavit of Mr Glover filed by the City, in which he deposed that the animal pound would be located for convenience within the Operations Centre, being 'a facility for holding animals lost or straying within the district until they can be collected by their owners or otherwise delivered to a place where they can be provided with long-term care'.[379] Mr Glover deposed that the dogs would not be 'boarded, bred, or even kept in the ordinary sense on the premises', but would be 'held on a temporary basis until recovered by their owners or otherwise delivered to a place where they can be more appropriately kept'.[380]
Submissions
[379] Primary Reasons [330].
[380] Primary Reasons [330].
The appellant submits that the word 'keeping' in the definition should not bear its ordinary meaning, but rather should be construed to mean 'to have habitually in stock or for sale'. That is, the word should be given a commercial meaning, particularly having regard to the co-location of the words 'boarding' and 'breeding' which are said to have a commercial connotation.[381]
[381] AS [70]
Further, when examined in the context of the scheme as a whole, the appellant contends the concept of 'kennels' is directed to 'animal boarding and commercial animal breeding', which phrase appears in the explanation of the 'Kennels Zone' in cl 3.2 of TPS 6.[382]
[382] AS [71].
The absence of any commercial purpose on the part of the City is thus said by the appellant to be decisive of this question. The appellant draws a distinction between an 'animal pound' where animals are kept as prisoners, on the one hand, and a 'kennel' where animals are kept for their own sake.[383] The appellant says there is no commercial use involved in the 'animal facility' which is intended to form part of the Proposed Development.
[383] Primary Reasons [331].
The first respondent draw attention to an additional defined use in TPS 6, namely that of an 'animal establishment'. This use is defined to mean 'premises used for the breeding, boarding, training or caring of animals for commercial purposes but does not include animal husbandry - intensive or veterinary centre'.[384] The first respondent emphasises the presence of the term 'commercial purposes' in that definition.
[384] TPS 6, sch 1, item 2.
The first respondent further submits that it is wrong to approach the concept of 'kennels' on the assumption the mischief is the commerciality of keeping dogs. Rather, the relevant mischief is said to be the nuisance of having more than two dogs, as appears from the concluding words of the definition. The policy objective behind the provision is that, according to the first respondent, a balance is reached by allowing families to keep two dogs but not allowing more than that given the likely amenity and nuisance issues which might arise in a residential area if more than two dogs were generally permitted.
The first respondent recognises this interpretation of the planning scheme is not wholly consistent with the provisions of the local law passed by the appellant under the Dog Act 1976 (WA) (Dog Act). Section 26 of the Dog Act provides that a local government may, by a local law, limit the number of dogs at domestic premises to 2, 3, 4, 5 or 6. The local law which is operative in the Gosnells district, the Dogs Local Law 2020 (WA) (Dogs Local Law), provides that homeowners may keep four dogs if the home is within the 'Kennels Zone'.[385] The manner in which the provisions are to be read, according to the first respondent, is that it can be seen that it will not be an offence under the Dogs Local Law to keep three dogs at premises larger than 2,000 square metres, but it will remain beyond the power of the appellant to grant planning permission to do so other than in a 'Kennels Zone'.[386]
Disposition
[385] Dogs Local Law, cl 3.2(5).
[386] RS [72].
The scope of the term 'kennels' in TPS 6 requires a consideration of the context, including the general purpose and policy of the definition when applied to the provisions of TPS 6. As with the definition of 'civic use', the definition of 'kennels' cannot be viewed in isolation and the question must be approached objectively, the 'use' classification being a jurisdictional fact.
The appellant's arguments on this ground of appeal place considerable reliance on the contention that the word 'keeping' in the definition of 'kennels' must be regarded as implying a commercial use. That requires one to accept that the term should not be ascribed its ordinary meaning, to 'take care of a thing or person' or the 'giving of attention so as to maintain in good order or condition'.[387]
[387] Primary Reasons [332].
I accept there are indications within the definition that the term is directed to commercial operations, particularly through the inclusion of the terms 'boarding' and 'breeding'. But the term 'keeping' within the definition must be given significance and operation. It is not to be subsumed by the words which surround it within the definition.
Further, the appellant's argument as to an implied commercial purpose within the 'kennels' definition is weakened by the express inclusion of a reference to 'commercial purposes' in the definition of 'animal establishment', and its absence in the definition of 'kennels'. That said, one should bear in mind the need to construe instruments such as a planning scheme in a broad manner, and not in an overly pedantic fashion.
Accordingly, rather than seeking to draw fine distinctions between the drafting of these two particular 'uses', a sounder approach in the context of a planning scheme such as this would be to consider the policy objectives which may be inferred to underpin the prohibition on 'kennels' use. That prohibition is applicable in every zone other than a 'Kennels Zone'. The policy is, one can safely infer, the planning imperative to minimise the impact on persons within the district of the noise and smell which would likely emanate from a facility or from premises which house more than 2 dogs on a regular basis. The Zoning Table corrals 'kennels' into specifically zoned areas for this particular reason. In this regard, I agree with the primary judge's reasons that this policy objective is likely to underpin the drafting and structure of TPS 6, more so than a commercial imperative associated with the keeping of animals.
The first respondent, in his submissions, offers a meaning of the term 'keeping', namely that it addresses the duration of having more than two dogs at a premises. For example, one does not keep a dog if the dog is temporarily housed at a dog grooming salon. Further, one is not keeping a third dog if the owner of two dogs permits that third dog, owned by a visitor perhaps, to stay at a residence over a short period. While there is some logic in this approach, it would introduce some uncertainty as to the length of time which triggers this type of 'use'. For my part, I accept that the holding of more than two dogs at the 'animal facility' on the site of the Proposed Development, even though only for a short period, would amount to the 'keeping' of those dogs, and so constitute a 'kennels' use within the meaning of TPS 6. There is no express or implied requirement for the 'keeping' to be driven by a commercial purpose. In any event, it is to be borne in mind that although the animal holding facility is designed to hold particular dogs for short periods, the facility itself will likely hold more than two dogs on a regular basis.
The appellant also places reliance on the definition of 'Kennels Zone' in TPS 6 as an aid to the construction of the term 'kennels' use, and as a basis to confine the reach of that use. The scheme defines 'Kennels Zone' as a zone 'to provide for dog kennels in appropriate locations, to meet the needs of the community with respect to animal boarding and commercial animal breeding'.[388] The formulation of the zone might suggest that the concept of 'kennels' use should be construed in a similar fashion, with an emphasis on boarding and breeding.
[388] TPS 6, cl 3.2.
I do not accept that the description of this 'zone' and this particular 'use' within TPS 6 must be viewed as being correlative. As earlier noted, fine distinctions should not readily be drawn when construing planning schemes such as this. In any event, as Buss P and Vandongen JA have observed, the definitions reveal nothing more than a planning decision that uses of a 'kennels' nature must take place alongside other similar land uses, in the same zone.
Further, I do not accept that the appellant's reliance on the regimes under the Dog Act and the Dogs Local Law provide an answer to the question of construction of a 'use' classification under the local planning scheme regime. The regimes are directed towards securing different policy objectives, with respect, and one should not regard an inconsistency between the regimes as indicative of an intention to confine the natural reading of the language employed. In any event, as senior counsel for the first respondent observed,[389] cl 1.8 of TPS 6 operates to control the hierarchy between the provisions of the scheme and a provision of a local law, such that the former prevails.
[389] Appeal ts 68.
The primary judge's assessment of the animal facility use aspect of the Proposed Development was correct, in my view. The term 'kennels' in TPS 6 should be construed in its ordinary sense, such that the animal facility would be a 'kennels' use (in the sense of constituting the 'keeping' of animals) and thus a prohibited use in the General Rural Zone under TPS 6.
Ground 4 must be dismissed.
Ground 5: 'industry noxious' use
The primary judge concluded that the approval of the Proposed Development by the City included an approval of the green waste grinding facility. The primary judge concluded this facility should be classified as an 'industry noxious' use within the meaning of TPS 6. That is a prohibited use within the 'General Rural Zone'.
There is no dispute on this appeal that, if the approval of the development by the City is properly regarded as including the green waste grinding facility, the classification of that use as 'industry noxious' under TPS 6 is appropriate. This follows because:
(a)such a facility would involve 'compost manufacturing and soil blending', which would engage the licensing provisions under the Environmental Protection Act 1986 (WA) (EP Act);
(b)compost manufacturing and soil blending activities are identified as 'prescribed premises' by reg 5 of, and category 67A of sch 1 to, the EP Regulations, for the purposes of pt V of the EP Act; and
(c)it will be recalled that TPS 6 defines 'industry noxious' use as an industry which is subject to licencing as 'prescribed premises' under the EP Act.
To be clear, category 67A of sch 1 to the EP Regulations provides as follows:
Category number
Description of category
Production or design capacity
67A
Compost manufacturing and soil blending: premises on which organic material (excluding silage) or waste is stored pending processing, mixing, drying or composting to produce commercial quantities of compost or blended soils.
1,000 tonnes or more per year
The classification of this use is thus not in contest. By ground 5, the appellant contends that the primary judge erred in fact and in law in concluding that the City's approval included the green waste grinding facility.
The principal submission advanced by the appellant is that the primary judge erroneously reached this conclusion on the basis the City had sought, and been given, approval to engage in compost manufacturing and soil blending pursuant to category 67A of sch 1 to the EP Regulations.
Yet, as the appellant emphasises, the unchallenged evidence before the Court below was to the effect that the City[390]
has not, does not, and will not engage in compost manufacturing and soil blending on the land within Category 67A.
[390] AS [75].
The appellant highlights the disconnect between the apparent basis on which the approval of the Proposed Development was given, at least so far as the primary judge found, and the intended 'uses' the appellant maintains it will implement.
The source of this disconnect is, according to the submissions of the appellant, the primary judge's erroneous reliance on the Marked Plan. The Marked Plan is described at [266] of these reasons and set out at Attachment C. The Marked Plan is titled 'Site, Bund, Green Waste Location and Building Locality Plan' and is dated 24 June 2020. The document is noted as being Plan No. 10381-A02b-C.[391] It contains additional red markings which do not appear on the earlier versions of the plan. The two earlier versions of this plan are referred to as Plan No. 10381-A02b-A and Plan No. 10381-A02b-B, neither of which contain the above red marking.[392]
[391] GAB 126.
[392] GAB 52.
The relevant red notation on the Marked Plan states:
Proposed location for category 67A green waste grinding area.
Consistent with the notation on the Marked Plan itself, the legend on the plan denotes the red area as representing 'Category 67A Green Waste Grinding - Approx. 3,100m2'.
The primary judge found that the Development Application sought approval for those 'uses' which formed part of the Marked Plan, as explained at [311] ‑ [315] of the Primary Reasons. The primary judge found that the 'uses' can be seen from the Marked Plan, including from the red notation.
Pausing at that point, it is well to note that ground 5 does not challenge the primary judge's reliance on the Marked Plan. The ground is solely focused on the effect of the appellant's unchallenged evidence at the hearing below. The appellant contends this is sufficient to demonstrate error. I respectfully disagree.
This ground of the appeal, at least when viewed in isolation, is without merit. It is wholly beside the point for an applicant seeking approval for a development to insist that it will not use the land for a use which is otherwise prohibited. As the first respondent has noted, an 'X' categorisation in the Zoning Table does not merely render the actual use unlawful, it legally precludes the approval of the use.[393] So much follows from the terms of cl 67(1)(a) of sch 2 to the PD Regulations, which forms part of the Deemed Provisions.
[393] RS [77] - [78].
No doubt for this reason the appellant is driven to challenge the primary judge's reliance on the Marked Plan, which forms the basis of proposed ground 6. I will address that ground next. Ground 5 must be dismissed.
Proposed Ground 6: the Marked Plan
Proposed ground 6 contends that the primary judge erred in law in concluding that, by reason of the notations on the Marked Plan, the Development Approval given by the City on 21 January 2022 permitted compost manufacturing and soil blending in terms described in category 67A. The appellant submits the primary judge should have found the Marked Plan did not form any part of the Development Approval.
The appellant requires leave to advance this ground given notice was given of the proposed amendment only on the day before the hearing of the appeal. The application to amend the grounds was thus made very late in the proceedings. The Court has power to add a ground of appeal, pursuant to r 43(2)(e) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The first respondent opposes leave being granted.
There were, in substance and so far as I can discern from the competing submissions, three bases for the opposition, which overlap to some degree.
First, it is asserted by the first respondent that this issue was not raised below.[394] Second, it is said by the first respondent that the proposed ground would involve the appellant resiling from a concession made in the proceedings below.[395] Third, the first respondent submits that, but for the concession below, the reasons and circumstances in which the Marked Plan was prepared might have been explored in cross-examination and the first respondent would be prejudiced by the grant of leave on appeal to allow the appellant to agitate this issue.[396]
[394] First respondent's submissions dated 29 February 2024 [20] ‑ [22]; appellant's submissions in reply dated 6 March 2024 [8] ‑ [9].
[395] Appellant's submissions dated 20 February 2024 [2]; first respondent's submissions dated 29 February 2024 [27].
[396] Appellant's submissions dated 20 February 2024 [6]; first respondent's submissions dated 29 February 2024 [27].
As these grounds of opposition suggest, the parties submissions on the question of leave, and in relation to the merits of proposed ground 6, raise what appear to be a number of contentious factual questions, including as to the course of the proceedings below.
At [274] of the Primary Reasons, the primary judge addressed the sixth issue, described as 'What was approved?'. In some detail, the primary judge traversed the 'considerable material' which had been adduced by the City below, seeking to isolate and identify what had been approved by the appellant as the Proposed Development. This issue formed part of the agreed list of issues the parties had prepared, as appears from [22] of the Primary Reasons.
The primary judge's analysis reveals the identification of the instrument or instruments which were approved by the City is not straightforward. The complexity arises because there were two approval processes, seeking approval from the City and from the WAPC. Further, an error arose in the course of the City's consideration of the Development Application, springing from an initial approval which was given beyond power.[397] Additionally, there are misdescriptions in the WAPC approval instrument, which mistakenly refers to an application with the wrong date and uses the wrong plan number for the Marked Plan.[398]
[397] Primary Reasons [309].
[398] Primary Reasons [306] - [307].
The primary judge's reasons in fact demonstrate that the battleground below was relatively narrow insofar as the Marked Plan was concerned. The appellant appeared to confine its objection to whether the uses identified within the plan should be taken as separate uses, not whether the plan correctly reflected the development in respect of which approval was being sought from the City.
The primary judge concluded that:
[315]I also consider that, due to the red notations on the Marked Plan approved by the WAPC, the City sought, and was given, approval to engage in compost manufacturing and soil blending in the terms described in Category 67A of the Environmental Protection Regulations. The Marked Plan formed part of the City's application, was stamped as approved by the WAPC, and was expressly referred to in the WAPC's Notice of approval. Indeed, the Notice stated that the WAPC approved the use and development of the Site 'as set out in' the MRS Form and the City Planning Report 'in accordance with' identified plans, one of which was the Marked Plan. (footnotes omitted)
However, it must be said there is nothing by way of factual material to support the primary judge's finding that the Marked Plan was incorporated into the appellant's Development Application to the City. This is largely explicable given the matters recorded by the primary judge, including, most importantly, that the City 'accepted, however, that what was recorded on the Marked Plan accurately reflected the things that the City was seeking to get approval to put on the land' ([312]). The City's approach to the proceedings below in this regard was not consistent with the statutory context.
In considering this proposed ground of the appeal, I am greatly assisted by the reasons of Buss P and Vandongen JA. As the reasons of their Honours explain, the factual analysis which the parties urge upon this Court, in their supplementary submissions filed following the hearing of the appeal, appears to be wholly divorced from the statutory context which applies. Their Honours correctly draw attention to the deemed provisions which apply to TPS 6, by reason of the PD Regulations, and in particular to cl 60(a), cl 63, cl 67(1), cl 68 and cl 73 of sch 2 to those regulations. I adopt their Honours' analysis in this regard.
As their Honours have concluded, and subject to the legislative changes which have occurred since the Development Application in this matter was lodged, which do not bear upon this appeal, it is the development for which approval is sought which marks out the boundaries of any approval given under the statutory regime.
Further, I respectfully agree with the conclusion reached by Buss P and Vandongen JA that, once the evidence before the primary judge (as supplemented by the parties on appeal) is carefully assessed, it is clear that the Marked Plan did not form part of, nor did it accompany, the Development Application which was the subject of the Development Approval given by the City on 21 January 2021. To the extent a broader factual inquiry was encouraged by the parties as to the provenance of the Marked Plan, it was simply irrelevant.
So, when these factual materials are viewed within the proper statutory context, I agree with their Honours that the grounds of opposition mounted by the first respondent, in opposing the grant of leave to proposed ground 6, carry little weight and, indeed, are misplaced.
Once the statutory context is appreciated, as their Honours explain, it is irrelevant whether the Marked Plan formed part of the approval given by the WAPC.
Critically, the Marked Plan did not form part of the City's Development Approval. As the Marked Plan was the only basis on which primary judge concluded that the City's approval included approval to engage in compost manufacturing and soil blending, the primary judge was led into error by the approach adopted by the parties in concluding that the City had acted beyond jurisdiction in approving a development which incorporated a 'use' which was beyond power.
The appellant should have leave to add this ground, and the ground should be upheld.
Conclusion and orders
For the foregoing reasons, I would dismiss grounds 1, 2, 3, 4 and 5. I would give leave to add proposed ground 6 and allow that ground. As earlier noted, the conclusion I have reached on ground 4 means that the Development Approval given by the City involved a jurisdictional error in that one of the approved uses, the 'kennels' use', was a prohibited use within the applicable regime in TPS 6, under the PD Act.
In these circumstances, the orders of the primary judge should not be disturbed and it is unnecessary to determine the issues raised by the first respondent's notice of contentions.
ATTACHMENT A
Regional Context Plan
ATTACHMENT B
Site and Building Locality Plan
ATTACHMENT C
Marked Plan
ATTACHMENT D
Extract from the Public Works Act 1902 (WA) (pre-amendment)
Section 2 of the PW Act as it stood prior to the coming into effect of the Land and Public Works Legislation Amendments Act 2003 (WA) contained the following definition of the term 'public work' and 'work':
2.Terms used
In this Act, if not inconsistent with the context -
…
public work and work means and includes:
(a)every work which the Crown, or the Governor, or the Government of Western Australia, or any Minister of the Crown, or any local authority is authorised to undertake under this or any other Act;
(b)any railway authorised by special Act or any work whatsoever authorised by any Act;
(c)tramways;
(d)any works for or in connection with the supply of water to, or for or in connection with the sewerage of, any city, town, or district, including all reticulations;
(e)buildings for the occupation of either or both of the Houses of Parliament or for public offices;
(f)hospitals, medical clinics, hostels and institutions including residences for staff, court‑houses, gaols, watch‑houses, lock‑ups, police barracks, or quarters;
(g)observatory;
(h)public schools or any other schools authorised to be established wholly or in part at the public cost by any Act in force for the time being, universities, colleges, technical and other educational institutions, including residences or hostels for teachers or students, and play‑grounds;
(i)public libraries, mechanics' or miners' institutes, agricultural halls, or schools of art;
(j)public housing;
(k)wharves, ferries, piers, jetties and bridges;
(l)parks or gardens or grounds for public recreation or places for bathing, and for the reclamation of land for or in connection therewith;
(m)public cemeteries;
(n)public wells or works for the conservation of water;
(o)the protection and preservation of any cave or place of scientific or historical interest;
(p)the protection and preservation of indigenous flora and fauna;
(q)the establishment of public abattoirs;
(r)harbours and ports, including the provision of storage, handling and wharfage areas and other facilities normally ancillary to the conduct of shipping operations, break‑waters, leading marks, navigational aids, docks, slips, the alteration or improvement of channels, waterways and rivers, the protection of foreshores and banks, the provision of new channels and related works, including the landing and disposal of silt;
(s)quarries or works for procuring stone, gravel, earth, or any other material required for the construction of, or any purpose connected with any public work as aforesaid;
(t)the procuring from land (other than Crown lands and public reserves) of timber, stone, gravel, earth and any other material required by or for the State for or in connection with the carrying on of any industrial or other undertaking or activity which is being carried on by or for the State under any law authorising the same;
(u)buildings and structures required for fire brigade purposes;
(v)the establishment and the extension by the Governor of sites for towns;
(w)the establishment and the extension by the Governor of agricultural research stations;
(x)drainage works in connection with any city, town, or district, and the improvement of rivers, watercourses, lakes, or inlets, including deepening, widening, straightening or otherwise altering, and disposal of silt;
(y)any building or structure of whatsoever kind which, in the opinion of the Governor, is necessary for any public purpose;
(za)any road, stock route, viaduct, or canal;
(zb)any work incidental to any of the aforesaid works;
(zc)any land required for or in connection with any work as aforesaid;
(zd)any survey in connection with any proposed public work[.]
ATTACHMENT E
Extract from the Public Works Act 1902 (WA) (post-amendment)
Schedule 1 - Classes of public work
| Item | Description |
| 1. | Works that the Crown, the Governor, the Government of Western Australia, a Minister of the Crown or a local authority is authorised to undertake, construct or provide under this Act or any other Act. |
| 2. | Railways authorised under a special Act or any other works authorised under an Act. |
| 3. | Tramways, light railways, monorails and works for any prescribed means of public passenger transport as defined in the Public Transport Authority Act 2003 section 3. |
| 4. | (1) Works for or in connection with the conservation, protection or management of water or water resources. (2) Works for or in connection with any of the following - (a) water supply, including abstraction and reticulation; (b) drainage, including reticulation; (c) the restoration or improvement of, or measures for the prevention of erosion of, rivers, watercourses, lakes or inlets, including deepening, widening and other alteration, disposal of silt and removal of waste or debris; (d) flood prevention or mitigation; (e) sewerage, including reticulation. |
| 5. | (1) Buildings for occupation by either or both Houses of Parliament. (2) Buildings for State government or local government office accommodation. (3) Works for or in connection with space leased or licensed for State government or local government office accommodation. |
| 6. | Health care facilities, including hospitals, hospices, medical clinics, other medical facilities, community health care centres and residential or short‑term accommodation facilities for patients and their carers or for staff. |
| 7. | Community residential facilities, including boarding houses, refuges, aged care facilities and facilities for people with a disability or mental illness or subject to social disadvantage. |
| 8. | Scientific facilities, including observatories, research stations, environmental monitoring facilities, laboratories and scientific installations. |
| 9. | Educational and related facilities, including schools, universities, colleges, technical and other educational institutions, teaching establishments, early learning centres, childcare centres, kindergartens, playgrounds and residential accommodation facilities for students attending those facilities or for staff. |
| 10. | Cultural, sporting, tourism and community facilities, including libraries, museums, theatres, art galleries, interpretive centres, entertainment facilities, stadiums and community centres. |
| 11. | Facilities for the Western Australian Mint. |
| 12. | (1) Public or community housing and community facilities and amenities, as defined in the Housing Act 1980 section 61(2), that are related or incidental to public or community housing. (2) Housing provided under the Government Employees' Housing Act 1964. |
| 13. | (1) Parks and gardens, including botanical gardens and zoological gardens. (2) Recreational or sporting grounds or facilities, including recreational paths or trails. (3) Showgrounds. (4) Racecourses. |
| 14. | Animal pounds (including cat management facilities under the Cat Act 2011 and dog management facilities under the Dog Act 1976). |
| 15. | Cemeteries, crematoriums and memorials. |
| 16. | Works for or in connection with the protection or preservation of a place of scientific, heritage, historical, natural, geological, environmental, aesthetic or cultural interest or value. |
| 17. | Works for or in connection with any of the following - (a) the protection or preservation of indigenous flora or fauna; (b) the protection or preservation of wetlands; (c) revegetation for conservation purposes. |
| 18. | Abattoirs, stock saleyards and agricultural saleyards. |
| 19. | (1) Harbours and ports, including storage, handling or wharfage areas and other facilities for or in connection with shipping or boating operations. (2) Wharves, docks, ferry facilities, piers, jetties, bridges, launching ramps, landing places, slips and moorings. (3) Breakwaters, leading marks, navigational aids and lighthouses. (4) Works for or in connection with the provision, improvement or alteration of channels, including the landing and disposal of silt. (5) Port works as defined in the Port Authorities Act 1999 section 35(9). |
| 20. | Quarries or works for procuring timber, stone, gravel, earth or any other material required - (a) by or for the State for or in connection with the carrying on of any commercial or industrial undertaking or activity, or any other undertaking or activity, that is being carried on by or for the State under the authority of a written law; or (b) for the construction of, or for any purpose connected with, a public work. |
| 21. | Facilities required for justice or emergency services purposes, including courthouses, prisons, detention centres, watch houses, lock‑ups, police stations and other police facilities, fire stations and ambulance depots. |
| 22 | Works for or in connection with the establishment or extension of sites for towns. |
| 23. | Roads, bicycle paths, shared paths, stock routes, viaducts, canals, tunnels, weighbridges, roadside testing facilities and roadside amenities. |
| 24. | Works for or in connection with the production, generation, transmission, distribution or storage of electricity, gas or any other form or source of energy. |
| 25. | Waste management facilities, including refuse tips, waste transfer stations, waste storage facilities, incinerators and recycling centres and depots. |
| 26. | Airstrip and airport facilities, including runways, taxiways, apron areas, passenger terminals, control towers, security facilities, walkways, busways, car parks, passenger transit facilities, passenger pick‑up and set‑down areas and servicing facilities. |
| 27. | Biosecurity facilities, including barrier fences and quarantine inspection stations. |
| 28. | Works for or in connection with an Aboriginal community or settlement, including works relating to the provision of essential services (for example, electricity, water or sewerage services), administrative services or emergency services. |
| 29. | Works for or in connection with the reclamation of land for the purposes of a public work. |
| 30. | Surveys and other investigative works for or in connection with a public work. |
| 31. | Works, facilities, buildings, structures and other things that are incidental or ancillary to, or otherwise connected with, a public work. |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
17 DECEMBER 2024
5
11
24