City Of Wanneroo and SCUTTI
[2016] WASAT 102
•23 AUGUST 2016
CITY OF WANNEROO and SCUTTI [2016] WASAT 102
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 102 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:470/2015 | ||
| Coram: | MS L EDDY (MEMBER) | 23/08/16 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application granted. Determination that the respondents' land was not injuriously affected by the applicant's planning scheme. | ||
| B | |||
| PDF Version |
| Parties: | CITY OF WANNEROO CARMELLA SCUTTI ANTONIO GIUSEPPE SCUTTI PAOLA SCUTTI GIUSEPPE ALESSANDRO SCUTTI |
Catchwords: | Planning and Development Act Injurious affection Whether land injuriously affected Identification of land as public open space in Structure Plan Whether town planning scheme prohibits any development other than for a public purpose Whether adoption of structure plan is an amendment of a town planning scheme |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 1.4, cl 1.9, cl 2.3, cl 3.14, cl 4.4, Pt VII, Pt IX, Sch 7 Interpretation Act 1984 (WA), s 5 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 4, s 172, s 173, s 174, s 176, s 176(1), s 177, s 177(1)(b), s 181, Pt 11 Planning and Development Local Planning Scheme Regulations 2015 (WA) |
Case References: | East Fremantle v Cornell [2005] WASCA 18 Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 O'Brien and City of Cockburn [2012] WASAT 113 Wines v Shire of Harvey [2000] WASCA 39 |
Orders | 1. The application is granted.,2. The Tribunal finds that Lot 1 Wanneroo Road, Pearsall and Lot 8 Wanneroo Road, Pearsall are not injuriously affected by the City of Wanneroo District Planning Scheme No 2 considered in conjunction with Agreed Structure Plan No 6 East Wanneroo Cell 4 (Hocking and Pearsall) for the purposes of Pt 11 of the Planning and Development Act 2005 (WA). |
Summary | The Shire of Wanneroo lodged an application in the Tribunal under s 176(1) of the Planning and Development Act 2005 (WA) for determination of a question as to whether land is injuriously affected.,The respondents are owners, as tenants in common, of Lot 1, Wanneroo Road, Pearsall. The first respondent is also the owner of Lot 8, Wanneroo Road, Pearsall. Under the Shire of Wanneroo District Planning Scheme No 2 both of those lots are zoned 'urban development'. In 2002, Agreed Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6, which encompassed an area including the respondents' lots, was adopted. In the Agreed Structure Plan, substantial parts of the respondents' land were identified as within an area of Public Open Space.,Following adoption of the Agreed Structure Plan, the first respondent applied for development approval to construct a rural shed on her lot. Subsequently, the respondents together applied for development approval to construct grouped houses on their combined land. Both applications were refused on the basis that they were inconsistent with the Agreed Structure Plan for the area.,The respondents lodged a claim with the applicant for injurious affection of their land that they alleged was caused by the adoption of the Agreed Structure Plan. The Shire disputed that the respondents' land had been injuriously affected and so brought the current application before the Tribunal.,In considering the application, the Tribunal considered whether the adoption of the Agreed Structure Plan was, or had the effect of, amending the applicant's planning scheme. The Tribunal also considered whether the Agreed Structure Plan, considered together with the relevant provisions of the planning scheme, had the effect of injuriously affecting the respondents' land within the meaning of s 174(1)(a) 174(1)(c) of the Planning and Development Act 2005.,Ultimately, the question as to whether the respondents' land was injuriously affected by the making or amendment of the planning scheme in circumstances where the Agreed Structure Plan was adopted under that scheme was answered in the negative. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CITY OF WANNEROO and SCUTTI [2016] WASAT 102 MEMBER : MS L EDDY (MEMBER) DELIVERED : 23 AUGUST 2016 FILE NO/S : DR 470 of 2015 BETWEEN : CITY OF WANNEROO
- Applicant
AND
CARMELLA SCUTTI
First Respondent
ANTONIO GIUSEPPE SCUTTI
Second Respondent
PAOLA SCUTTI
Third Respondent
GIUSEPPE ALESSANDRO SCUTTI
Fourth Respondent
Catchwords:
Planning and Development Act Injurious affection Whether land injuriously affected Identification of land as public open space in Structure Plan Whether town planning scheme prohibits any development other than for a public purpose Whether adoption of structure plan is an amendment of a town planning scheme
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 1.4, cl 1.9, cl 2.3, cl 3.14, cl 4.4, Pt VII, Pt IX, Sch 7
Interpretation Act 1984 (WA), s 5
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 4, s 172, s 173, s 174, s 176, s 176(1), s 177, s 177(1)(b), s 181, Pt 11
Planning and Development Local Planning Scheme Regulations 2015 (WA)
Result:
Application granted. Determination that the respondents' land was not injuriously affected by the applicant's planning scheme.
Summary of Tribunal's decision:
The Shire of Wanneroo lodged an application in the Tribunal under s 176(1) of the Planning and Development Act 2005 (WA) for determination of a question as to whether land is injuriously affected.
The respondents are owners, as tenants in common, of Lot 1, Wanneroo Road, Pearsall. The first respondent is also the owner of Lot 8, Wanneroo Road, Pearsall. Under the Shire of Wanneroo District Planning Scheme No 2 both of those lots are zoned 'urban development'. In 2002, Agreed Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6, which encompassed an area including the respondents' lots, was adopted. In the Agreed Structure Plan, substantial parts of the respondents' land were identified as within an area of Public Open Space.
Following adoption of the Agreed Structure Plan, the first respondent applied for development approval to construct a rural shed on her lot. Subsequently, the respondents together applied for development approval to construct grouped houses on their combined land. Both applications were refused on the basis that they were inconsistent with the Agreed Structure Plan for the area.
The respondents lodged a claim with the applicant for injurious affection of their land that they alleged was caused by the adoption of the Agreed Structure Plan. The Shire disputed that the respondents' land had been injuriously affected and so brought the current application before the Tribunal.
In considering the application, the Tribunal considered whether the adoption of the Agreed Structure Plan was, or had the effect of, amending the applicant's planning scheme. The Tribunal also considered whether the Agreed Structure Plan, considered together with the relevant provisions of the planning scheme, had the effect of injuriously affecting the respondents' land within the meaning of s 174(1)(a) 174(1)(c) of the Planning and Development Act 2005.
Ultimately, the question as to whether the respondents' land was injuriously affected by the making or amendment of the planning scheme in circumstances where the Agreed Structure Plan was adopted under that scheme was answered in the negative.
Category: B
Representation:
Counsel:
Applicant : Mr G Ritter SC
espondents : Mr P McGowan
Solicitors:
Applicant : HopgoodGanim Lwyers
Respondents : Rowley Legal
Case(s) referred to in decision(s):
East Fremantle v Cornell [2005] WASCA 18
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
O'Brien and City of Cockburn [2012] WASAT 113
Wines v Shire of Harvey [2000] WASCA 39
Introduction
1 On 22 December 2015, the Shire of Wanneroo (applicant or Shire) lodged an application in the Tribunal under s 176(1) of the Planning and Development Act 2005 (WA) (PD Act) for determination of a question as to whether land is injuriously affected.
2 In February 2016, relevant programming orders were made and the matter was listed for a final hearing on 31 May 2016. Following that hearing, the decision was reserved. Following are the reasons for decision and the decision of the Tribunal in this matter.
Relevant agreed facts
3 The respondents are owners, as tenants in common, of Lot 1, Wanneroo Road, Pearsall (Lot 1). The first respondent is also the owner of Lot 8, Wanneroo Road, Pearsall (Lot 8). Under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme), Lot 1 and Lot 8 are zoned Urban Development.
4 DPS 2, as it stood at the relevant time, required an Agreed Structure Plan to be adopted under Pt 9 of the Scheme prior to any subdivision or development of land in the Urban Development zone. On 24 June 2002, Agreed Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall) Structure Plan No 6 (ASP 6), which encompassed an area including Lot 1 and Lot 8, was adopted.
5 In April 2013, the first respondent lodged a development application with the Shire seeking approval for the construction of a 'rural shed' on Lot 8. That development application was refused on the basis that the Shire considered that:
1) the proposed shed addition would constitute an intensification of a 'rural use' in an area zoned Residential which may have an impact on the surrounding locality;
2) the proposal did not meet the objectives of the 'Residential precinct' as outlined in cl 4.1 of 9 6 as approval of the proposed shed will compromise the development of the precinct for residential purposes in the medium and long term; and
3) approval of the proposed shed will prejudice the future planned use of the site, in this case being for public open space, contrary to cl 4.1(c) of ASP 6.
6 On 3 December 2013, the respondents lodged a new development application with the Shire, this time seeking approval to construct grouped housing on the combined area of Lot 1 and Lot 8. That development application was determined by the Metropolitan North-West Joint Development Assessment Panel (JDAP) because of the value of the proposed development. The JDAP refused the development application on the basis that it was the JDAP's view that:
1) the proposal was inconsistent with and contrary to clause 6 and Schedule 3 of ASP 6 as the ability for the provision of public open space would be compromised; and
2. the proposal was inconsistent with and contrary to the objectives of the Primary Regional Road Reservation for which part of Lot 8 was reserved under the Metropolitan Region Scheme (road reserve) and would significantly compromise the availability of the land for future roadworks.
7 On 3 April 2014, the respondents lodged a composite claim for compensation for injurious affection with the Western Australian Planning Commission (WAPC) (in relation to the part of Lot 8 Wanneroo Road the subject of the road reserve) and the Shire (in relation to Lot 1 Wanneroo Road and the part of Lot 8 not subject to the road reserve).
8 The claim lodged with the Shire was that Lot 1 and the part of Lot 8 not subject to the road reserve (land) were injuriously affected by the adoption of ASP 6 which identified the land as 'public open space'. It was claimed that as a consequence of this, the land could not be developed or used for any purpose other than a public purpose. The respondents claimed that the decision of the JDAP to refuse the development application in relation to grouped housing on the land triggered the right of compensation for injurious affection.
9 On 27 November 2015, following some communications between the parties, the exact content and effect of which is not agreed, the applicant advised the respondents that it denied that the land was injuriously affected. Further communications between the parties followed in relation to arbitration. On 16 December 2015, the respondents applied to the Supreme Court for the appointment of an arbitrator to determine a question as to the amount and manner of payment of the sum which is to be paid as compensation under the PD Act.
10 On 22 December 2015, the applicant lodged the current application in the Tribunal.
Legislation
11 Pursuant to s 176(1) of the PD Act, a claimant or a responsible authority may apply to the State Administrative Tribunal for determination of any question as to whether land is injuriously affected. The applicant is the 'responsible authority' within the meaning of the PD Act in relation to claims for injurious affection arising out of the making or amendment of DPS 2: s 4 of the PD Act.
12 Section 173 of the PD Act relevantly provides that a person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.
13 Section 174 of the PD Act specifies when land is injuriously affected. It provides:
(1) Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if
(a) that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose; or
(b) the scheme permits development on that land for no purpose other than a public purpose; or
(c) the scheme prohibits wholly or partially
(i) the continuance of any non-conforming use of that land; or
(ii) the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non-conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.
(3) Where a planning scheme wholly or partially prohibits the continuance of any nonconforming use of any land or the erection, alteration or extension of any building in connection with or in furtherance of a nonconforming use of any land, no compensation for injurious affection is payable in respect of any part of the land which immediately prior to the coming into operation of the scheme or amendment does not comprise
(a) the lot or lots on which the non-conforming use is in fact being carried on; or
(b) if the prohibition relates to a building or buildings standing on one lot, the lot on which the building stands or the buildings stand; or
(c) if the prohibition relates to a building or buildings standing on more than one lot, the land on which the building stands or the buildings stand and such land, which is adjacent to the building or buildings, and not being used for any other purpose authorised by the scheme, as is reasonably required for the purpose for which the building or buildings is or are being used.
(4) If any question arises under subsection (3) as to whether at any particular date, any land
(a) does or does not comprise the lot or lots on which a non-conforming use is being carried on; or
(b) is or is not being used for any purpose authorised by a scheme; or
(c) is or is not reasonably required for the purpose for which any building is being used,
the claimant or responsible authority may apply to the State Administrative Tribunal for determination of that question.
- 'Public purpose' is defined in s 172 of the PD act to mean 'a purpose which serves or is intended to serve the interests of the public or a section of the public and includes a public work'.
14 Pursuant to s 177 of the PD Act, no compensation for injurious affection is payable until one of the specified triggering events occurs. Relevantly to this matter, compensation is payable when the responsible authority refuses an application made under the planning scheme for approval of development on the land: s 177(1)(b) of the PD Act.
15 In the context of this matter, given that the claim is said to arise because of the making or amendment of DSP 2 by the adoption of ASP 6, it is necessary to canvas the relevant provisions of DSP 2 and of ASP 6.
16 Clause 3.14.4 of DPS 2 provides that 'the permissibility of uses in the Urban Development zone subject to cl 9.8.2 and cl 9.8.3 shall be determined in accordance with the provisions of the relevant Agreed Structure Plan. Clause 9.8 of DPS 2 relevantly provides:
…
9.8.2 Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
a) the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and
b) provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area.
9.8.3 Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:
(a) in the areas designated as zones, the permissibility of uses shall be the same as set out in Table 1 as if those areas were zones under the Scheme, having the same designation;
(b) the standards and requirements applicable to zones and R Codings under the Scheme shall apply to the same extent to the areas having corresponding designations under the Agreed Structure Plan however notwithstanding the provisions of paragraph (f), an Agreed Structure Plan may by a clear statement of intent to do so, make provision for any standard or requirement applicable to zones or R Codings to be varied, and the standard or requirement varied in that way shall apply within the area of the Agreed Structure Plan, or any stipulated part of that area, as if it was a variation incorporated in this Scheme;
(c) the development control procedures including (without limitation) the procedures for approval of uses and developments under the Scheme shall apply as if the land was correspondingly zoned or reserved under the Scheme;
(d) provisions duplicating or substantially to the same effect as any provisions of the Scheme shall have the same force and effect in regard to the land in the Structure Plan as if they were provisions of the Scheme;
(e) where land is classified as a Local Authority Reservation, the rights, provisions and procedures, and the obligation of the Council in regard to compensation shall apply as if the land was correspondingly reserved under the Scheme;
(f) any other provision, standard or requirement in the Structure Plan shall be given the same force and effect as if it was a provision standard or requirement of this Scheme, but subject to the provision of subclause 9.8.3(b) allowing for a specific variation to a Scheme standard or requirement by a Structure Plan, if there is any other inconsistency or conflict not addressed as an intended variation by the Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail; AMD 26 GG 10/9/04
(g) an Agreed Structure Plan may distinguish between provisions, requirements or standards which are intended to have effect as if included in the Scheme, and provisions, requirements or standards not so intended, and it is only the provisions so intended which have that effect. Any other provisions are for guidance or information only, or such other purpose as stipulated in the Agreed Structure Plan documents.
PART 1
STATUTORY PLANNING SECTION
As provided or under the relevant 'Structure Plan' provisions of the Scheme, this part of the Structure Plan has the same force and effect as if it was a provision, standard or requirement of the Scheme.
…
1. ZONES
Plan 1: 'The Zoning Map'.
2. LOCAL STRUCTURE PLAN
Plan 2: The 'Local Structure Plan'.
3. RETAIL FLOOR SPACE (NLA)
…
4. PROVISIONS
4.1 RESIDENTIAL PRECINCT:
The permissibility of uses are to be in accordance with the Residential Zone as specified under the scheme. Rural development involving high capital investment, offensive trades, mushroom farms and/or of a longterm nature will generally be discouraged. Other Rural uses may be considered. Unless otherwise identified on Plan 2 'The Local Structure Plan' the residential density to apply to this precinct is R20.
Objectives
To promote residential development whilst allowing for rural uses and development if it is considered that such uses will not compromise the intention to develop the precinct for residential purposes in the medium and longer term.
In assessing a rule use application within this precinct, consideration will be given to:
a) referring the applicants to areas set aside for General Rural under the scheme;
b) imposing a time limit on the period for which the approved development may be carried out and the preparation and execution of a legal agreement, at the landowner/s expense, between the landowner/s and Council to the effect; and/or
c) refusing the application if it is considered likely to prejudice the future planned use of the land;
d) proximity of urban development to the subject land;
e) the ability of the land to be used for residential purposes in the immediate future in light of servicing and other constraints;
f) other appropriate factors.
…
6. PUBLIC OPEN SPACE (POS) PROVISION
The following Schedule 3 details the Public Open Space (POS) which is to be provided by landholders for each lot within Cell 4. The POS allocation reflects the distribution of POS on the Agreed Local Structure Plan for Cell 4.
18 There is no clear identification of the end of 'Part 1'. So called 'schedules' 1 to 3 are incorporated into the text of ASP 6, directly following the text that refers to each of the schedules rather than forming an annexure at the end of the document.
19 Following the text of ASP 6 are two plans. The first is the 'East Wanneroo Structure Plan Cell 4' (Structure Plan). On that plan the land is identified as public open space. On the following page is the 'East Wanneroo Cell 4 Zoning Plan' (Zoning Plan). On this plan the land is marked as 'Residential Precinct'.
Issues
20 At the commencement of the hearing, the Tribunal advised the parties that the questions raised for consideration in this matter were as follows.
1) Is adoption of a structure plan the making or amendment of a scheme for the purposes of s 174 of the PD Act?
2) Does the scheme (as it was) in fact prohibit development, reserve land or prohibit wholly or partially the continuation of, or prohibit development in furtherance of, a nonconforming use?
3) Is determination of the application at all impacted by the fact that the local planning scheme provisions in relation to structure plans have been changed by the introduction into the scheme of relevant deemed provisions by the Planning and Development Local Panning Schemes Regulations 2015 (WA) (LPS Regulations), having regard to s 181 of the PD Act?
- Neither party raised any issues with the identified questions. However, both parties submitted that issues 1 and 3 may be shortly dealt with and dismissed.
21 In relation to issue 1, they both submitted, without providing any reasoning or further submission, that adoption of ASP 6 was effectively the amendment of the Scheme.
22 As can be seen from s 173 and s 174 of the PD Act, injurious affection only arises under the PD Act as a consequence of the making or amendment of a planning scheme. As this is a question of law that fundamentally affects whether the Tribunal can determine that injurious affection has occurred, I am not satisfied that I can simply accept the parties' agreed position on this point.
23 In relation to issue 3, the parties each submitted that the amendments to DPS 2 made by the LPS Regulations were irrelevant to the determination of this matter as the respondents' claim for injurious affection, if made out, had crystallised upon the refusal of the grouped housing development application. As such, it was the provisions of the Scheme as it stood at that time that would be determinative. That proposition is no doubt correct. However, it does not address the question that was intended to be raised by the proposed issue.
24 It seems to me that, if the respondents' land had been injuriously affected as a result of the adoption of ASP 6, and if that injurious affection occurred by way of a reservation of the land, it might be relevant to how the Tribunal determines the application that DPS 2 has subsequently been amended in a way that potentially reverses any reservation of the land. This potential relevance arises because of s 181 of the PD Act, which provides for the ability for the responsible authority to recover any compensation for injurious affection paid to an owner of land if a reservation is revoked or reduced. This raised the question of whether this context requires the Tribunal, when determining a question of whether injurious affection arises under s 176 of the PD Act, to consider whether the cause of injurious affection has since been reduced or revoked. However, ultimately, given the findings made, it was not necessary to consider this potential issue any further.
Is adoption of a structure plan the making or amendment of a scheme?
25 The description, by the parties, of the claimed injurious affection of the land arising because of the adoption of ASP 6 raises the question of whether the adoption of an Agreed Structure Plan under DSP 2 is equivalent to, or can constitute, the amendment of a planning scheme.
26 Having regard to the provisions in the PD Act that specify the procedures required for the making, or amendment, of, a planning scheme on the one hand, and the provisions in DPS 2 in relation to the making and adoption of an Agreed Structure Plan on the other, it is apparent that these two processes are not equivalent. The relevant provisions of the PD Act, being s 72 to s 87, outline a rigorous process that is required for the making or amendment of a planning scheme. The proposal must go through consultation, be referred to the Environmental Protection Authority and potentially await the outcome of an environmental review, be advertised within the relevant local government community, and be referred to the relevant Minister. If the Minister approves the scheme, or the amendment, the WAPC is notified and the scheme or amendment must be published in the Government Gazette. Once this occurs, the scheme, or the amendment, has full force and effect as if it were enacted by the PD Act. The PD Act does not provide any person with a right of review or appeal in relation to decisions made in relation to the making or adopting of a planning scheme. Such a process is consistent with the status of a planning scheme as subsidiary legislation: s 5 of the Interpretation Act 1984 (WA).
27 The process for adopting a structure plan under DPS 2, at the relevant time specified in cl 9.4.1 to cl 9.6.5 of the Scheme, involved consultation and advertising but no referral to the EPA. The final decisionmaker is the WAPC rather than the Minister. In addition, there is no requirement for gazettal of a structure plan. There is a right of appeal in relation to decisions concerning the making of an Agreed Structure Plan: cl 9.12 of DPS 2.
28 When the original DPS 2 was gazetted in July 2001, ASP 6 did not exist. It was adopted in June 2002. Thus, ASP 6 could not be said to have been part of the original DPS 2. Neither can it be said that ASP 6 became, upon adoption, a part of DPS 2. Clause 9.8 of DPS 2 specifies the operation and effect of an Agreed Structure Plan once it comes into operation. Nothing in cl 9.8 of DPS 2 provides that an Agreed Structure Plan is incorporated as part of the Scheme. Rather, it is provided that certain provisions of an Agreed Structure Plan may apply 'as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme': cl 9.8.2 of DPS 2. In addition, an Agreed Structure Plan may 'distinguish between provisions, requirements, or standards which are intended to have effect as if included in the Scheme, and provisions, requirements or standards not so intended, and it is only the provisions so intended which have that effect': cl 9.8.3(g) of DPS 2.
29 Clause 1.4 of DPS 2 provides that:
The Scheme comprises:
a) this Scheme Text
…
d) the Scheme Map
e) Residential Density Code Maps.
30 The term 'Residential Density Code Maps' is not defined in DPS 2. However, in cl 4.4 of DPS 2 it is stated that:
…
4.4.4 Subject to subclause 4.4.5, the Residential Design Code density applicable to land within the Scheme Area shall be determined by reference to the legend shown on the Residential Density Codes Maps.
4.4.5 Notwithstanding the provisions of clause 4.4.4, where land within the Scheme is subject to an Agreed Structure Plan, the Residential Density Codes for the area shall be determined according to the Agreed Structure Plan.
…
- From this context, it seems to me that an Agreed Structure Plan, while it may impose a residential density code on land, is not a Residential Design Code Map within the meaning of DPS 2.
31 However, despite the fact that it cannot be said that ASP 6 is incorporated into the Scheme or that the adoption of ASP 6 was, or was equivalent to, an amendment to DPS 2, I am satisfied that it was, nonetheless, a circumstance that caused relevant provisions of DPS 2, that had been in existence since the making of that Scheme, to potentially have the effect of causing injurious affection to the land. When seeking to determine whether the land has been injuriously affected, it is the terms of cl 9.8.2 and cl 9.8.3 of the Scheme that are of primary consideration. It is these provisions that create a mechanism by which land may become reserved as if reserved under the Scheme, or by which development may be prohibited as if the prohibition was contained in the Scheme. Although the adoption of ASP 6 was the mechanism through which the land was identified as being allocated as 'Public Open Space' on the Structure Plan of ASP 6, it is only by application of the provisions of DPS 2 that this can potentially have the effect complained of by the respondents.
32 I am satisfied that it was the making of DPS 2, and, relevantly to this case in particular, the inclusion of cl 9.8.2 and cl 9.8.3 in the Scheme that may, if the Scheme together with the provisions of ASP 6 have the effect of causing any of the outcomes specified in s 174(1) of the PD Act, have resulted in injurious affection of the land.
Does ASP 6 prohibit development, reserve land or prohibit continuation of a nonconforming use?
33 The respondents submit that the land is injuriously affected within the meaning of any or all of paragraphs (a) to (c) of s 174(1) of the PD Act.
Reservation of land s 174(1)(a) of the PD Act
34 The respondents submit that the land is reserved within the meaning of s 174(1)(a) of the PD Act by reason of cl 3.14.4, cl 9.8.2 and cl 9.8.3(c) of DPS 2. They submit that the identification of the land as 'Public Open Space' on the Structure Plan of ASP 6 has the same force and effect as if it was a provision, standard or requirement of the Scheme. Therefore 'designation of land on the local structure plan as Public Open Space both prescribes and prescribes its use'. It is submitted that this causes the land to be classified as a 'Local Authority Reservation' under the Scheme because of cl 9.8.3(e) of DPS 2.
35 The applicant submits that there has been no reservation of land by ASP 6 and therefore s 174(1)(a) of the PD Act does not apply to the land.
36 There is no dispute that ASP 6 does not apply the term 'reserve' in relation to the land. The respondents' submission therefore relies on an argument that identification of the land as 'Public Open Space' has the effect of reserving the land within the meaning of s 174(1)(a) of the PD Act. In O'Brien and City of Cockburn [2012] WASAT 113, at [39], Deputy President Sharp and Member B De Villiers stated that:
… The Tribunal has the power under s 174(1)(a) of the PD Act to determine a question as to whether land is injuriously affected, but this should not be construed as a power to make a finding that there has been something included in a planning scheme which is 'tantamount to a reservation'. Reservation is a matter of fact.
37 The term 'reserved' is not defined in the PD Act. However, as identified by McLure JA in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 at [47]:
… the reservation of land for public purposes has a long history under Western Australian planning legislation as explained in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273; 321-322 [[2004] WASCA 149, at [242] [247]]. The purpose of a reservation is to indicate the intention that the land will be purchased or taken by government for public purposes …
38 In order to determine the question of fact as to whether the provisions of DPS 2 have the effect of reserving the land, it is necessary to consider, in addition to the provisions of DPS 2 outlined above, further provisions in the Scheme in relation to reserves. In Sch 1 of DPS 2, 'reserve' is defined to mean 'any land reserved for a public purpose'. Part 2 of DPS 2 is headed 'Reserves' and contains the following relevant provisions:
2.1 Reserves
Certain lands within the Scheme Area are shown on the Scheme Map and classified into either:
a) Metropolitan Region Scheme Reserves; or
b) Local Reserves.
…
2.3.1 Local Reserves
Local Reserves are delineated and depicted on the scheme Map according to the legend thereon.
40 As indicated above, cl 9.8.2 of DPS 2 operates to provide that an Agreed Structure Plan may impose a classification on land by reference to, amongst other things, reserves, and that classification will apply as if the provision was incorporated in the Scheme. Clause 9.8.3(e) of DPS 2 confirms that where land is classified as a 'Local Authority Reservation' in an Agreed Structure Plan, the obligations of the respondent in regard to compensation apply as if the land was reserved under the Scheme.
41 It is not immediately clear why a new term 'Local Authority Reservation' is used in cl 9.8.3(e) of DPS 2 rather than the term 'Local Reserve' used elsewhere in the Scheme. Nor is it clear why the Scheme maps use another slightly different term 'Local Scheme Reserves'. Neither 'Local Authority Reservation' nor 'Local Scheme Reserves' is defined in DPS 2 or anywhere else that the Scheme points to for guidance in relation to interpretation of the Scheme in cl 1.9 of DPS 2. Although there is a wellaccepted presumption of statutory interpretation that where a different term is used it is presumed the drafter intends to convey a different meaning, having regard to the context, the common inclusion of the word 'reserve' and the fact that planning schemes are not drafted by Parliamentary Counsel, I am satisfied that 'Local Authority Reservation', 'Local Scheme Reserves' and 'Local Reserve' are intended to be used interchangeably and have the same meaning.
42 The Structure Plan of ASP 6 does not describe or classify the land as a 'Local Reserve', a 'Local Authority Reserve' or a 'Local Scheme Reserve', nor does it identify the land as a reserve by use of one of the legends used for that purpose in the Scheme maps. There is nothing on the Structure Plan of ASP 6 or in the text of ASP 6 that identifies that the land is classified as a reserve. Rather, the land is identified in the Structure Plan of ASP 6 as 'Public Open Space'.
43 Identification of areas of 'Public Open Space', locations of schools, neighbourhood centres, roads and other infrastructure is required in an Agreed Structure Plan: Sch 7 of DPS 2. An Agreed Structure Plan must also include provisions concerning developer contributions towards necessary infrastructure, which includes, amongst other things, 'Public Open Space': Sch 7 of DPS 2. Where there is an obligation or liability under an Agreed Structure Plan, by way of developer contributions, the relevant land may not be subdivided or in any other way developed unless arrangements have been made with the respondent to discharge that liability: cl 9.9 of DPS 2.
44 An Agreed Structure Plan is not necessarily fixed and may change by way of amendment of the structure plan: cl 9.7 of DPS 2.
45 It can be seen that the identification of land as 'Public Open Space' in an Agreed Structure Plan has a role as part of the strategic planning for an area by providing for one of the aspects of necessary infrastructure. The Agreed Structure Plan also allows for identification of appropriate developer contributions for this, as well as other, necessary infrastructure so as to provide sufficient economic means for the Shire to be able to ultimately provide that infrastructure.
46 There remains, however, flexibility in the precise details of where relevant infrastructure is to be located, by the ability to amend an Agreed Structure Plan.
47 The ability to provide an overarching plan for an area of land by way of an Agreed Structure Plan is further supported by provision for the classification of land identified for use for a public purpose as a reserve. If land is so classified, it has the same force and effect as if the land had been so classified under the Scheme.
48 It seems to me that whether or not areas allocated for the provision of relevant infrastructure are classified within an Agreed Structure Plan as reserves is likely to depend on how well developed the planning process is. There may, in some cases, be a degree of uncertainty about the precise location and extent of some of the infrastructure that would ultimately be necessary within an area. Given the consequences of classification of land as a reserve in terms of causing injurious affection to the land, it would not be appropriate to so classify land until sufficient certainty that the land would need to be acquired or taken for an identified public purpose had been achieved.
49 I am satisfied that the term 'Public Open Space' is intended to have a different meaning and effect to reservation under the Scheme.
50 In light of this, and the absence of any description of the land in the Structure Plan, Zoning Plan or text of ASP 6 as being reserved, I am not satisfied that the land, at this point in time, has been reserved under DPS 2 for a public purpose.
Prohibition on development of land s 174(1)(b) of the PD Act
51 In relation to s 174(1)(b) of the PD Act, the respondents' submission is developed as follows.
52 Under this provision of the PD Act, the development in question must be considered in a prospective manner. It does not include any existing use. Clause 4.1 of ASP 6 makes it clear that obtaining an approval for development of a rural type in the area covered by ASP 6 will be subject to a special procedure. That procedure is different to, or 'over and above', the normal considerations applicable to a development application. The effect of this, it is submitted, is to constitute a prohibition of rural development unless there is a special dispensation given. In making this submission, the respondents refer to the distinction between a requirement for development approval for all land and a requirement for a 'special approval' imposed on specific land under a planning scheme identified in East Fremantle v Cornell [2005] WASCA 18, at [63] [67]. It is submitted that the effect of ASP 6 is to prohibit all development on land that is there identified as 'Public Open Space' unless the development is compatible with that classification/reservation. That this is so, submit the respondents, is borne out by the refusal of the shed and grouped housing development applications.
53 The applicant submits that the land is zoned Residential Precinct under ASP 6 and therefore it can be developed as if it was zoned Residential under DSP 2. The applicant submits that the identification of the land as within an area of public open space on the Structure Plan of ASP 6 does not prevent development of the land in accordance with its Residential zoning. It submits that the identification of areas as 'Public Open Space' on the Structure Plan of ASP 6 is only indicative of a possible future reservation of land.
54 The applicant is correct that the Zoning Plan of ASP 6 clearly identifies that the land is zoned Residential Precinct. Pursuant to cl 4.1 of ASP 6, the permissibility of uses within this precinct is in accordance with the Residential zone as specified under the Scheme. In addition, rural uses may be considered, although some specified rural uses 'will generally be discouraged'. If a rural use is applied for, consideration is to be given to the specified factors in paragraphs (a) to (f) of cl 4.1 of ASP 6. These factors are different to those specified in cl 6.8 of DPS 2, which, at the relevant time, provided the matters to be considered in determining an application for development approval.
55 Putting aside for a moment the identification of the land as within an area of 'Public Open Space' in ASP 6, development of the land is permitted in accordance with a Residential zoning under DPS 2. In addition, some rural uses are able to be considered. This is not a prohibition on development subject to an ability to grant an exception to the prohibition: cf East Fremantle v Cornell [2005] WASCA 18. Thus, it is only if the identification of the land as 'Public Open Space' on the Structure Plan of ASP 6 has the effect of prohibiting development except for a public purpose, that the land can be said to be injuriously affected.
56 As indicated above, the land has not been reserved for a public purpose under DPS 2. What then, is the effect of the identification of the land as within an area of 'Public Open Space'?
57 There is nothing in the Scheme that specifically or functionally prohibits development of land identified as 'Public Open Space' in an Agreed Structure Plan. There is also no text within ASP 6 to this effect.
58 As a matter of orderly and proper planning, given the strategic planning role of an Agreed Structure Plan, regard would have to be had to such a document when considering any application for development of land that is subject to an Agreed Structure Plan. As such, an Agreed Structure Plan is specifically identified in cl 6.8(f) of DPS 2 as a matter that the decisionmaker must have 'due regard' to in determining a development application.
59 The phrase 'have due regard for' requires the decisionmaker to take into account, or give consideration to, the matters listed: Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), at [107]. Although the statutory provisions being considered by her Honour Pritchard J in the Marshall case are not identical to cl 6.8 of DPS 2, in my view, the context and purpose of those provisions are sufficiently similar that her Honour's determination of the content of the obligation to 'have due regard' in that case is equally applicable here. That is, the decisionmaker must give active or positive consideration to the matters listed, to the extent that they apply in any particular case: Marshall, at [115].
60 A requirement to give active or positive consideration to identification of the land as part of an area of 'Public Open Space' in ASP 6, in circumstances where the land has not yet been reserved, does not amount to a prohibition on development other than for a public purpose. The fact that the reasons for refusal by the JDAP, when considering the grouped housing development application, might be argued to suggest that they considered otherwise, does not change the position.
Prohibition of nonconforming use of land s 174(1)(c) of the PD Act
61 It is submitted by the respondents that the current Rural use of the land is a nonconforming use. The shed development application, it is submitted, was an application to extend that nonconforming use. The refusal to allow that development application because the land was identified as being required for public open space, and because it would compromise the future Residential zoning of the surrounding land, is submitted to establish that the land was injuriously affected within the meaning of s 174(1)(c) of the PD Act.
62 The applicant disputes that the respondents have any existing nonconforming use.
63 In s 172 of the PD Act, 'nonconforming use' is defined to mean 'a use of land which, although lawful immediately before the coming into operation of a planning scheme, or amendment to a planning scheme, is not in conformity with a provision of that scheme that deals with a matter specified in Sch 7 cl 6 or cl 7'. Clause 6 of Sch 7 of the PD Act refers to the 'zoning of the scheme area for appropriate purposes' and 'designation of uses in zones as permitted, prohibited or requiring approval'. Thus, to constitute a nonconforming use within the meaning of s 174(1)(c) of the PD Act, the preexisting lawful use of the land must not be in conformity with the zoning or designation of uses in the zone imposed by DPS 2 in connection with ASP 6.
64 Neither the agreed facts nor the respondents' submission identifies the preexisting lawful use of the land. It is implicit, perhaps, in the reasons given by the applicant for refusal of the shed development application, that the existing use was a Rural use within the meaning of DPS 2.
65 'Rural use' is defined in Sch 1 of DPS 2 as:
… agriculture, horticulture and may include aquaculture, and includes the raising of livestock and the retail sale of the produce of the property where satisfactory access and parking can be provided, and provided that any processing of the produce prior to sale can take place on site.
66 'Rural use' is an X use in the Residential zone pursuant to the Zoning Table in DPS 2. However, cl 4.1 of ASP 6 specifically provides that Rural uses may be considered in the Residential Precinct.
67 It is the case that cl 4.1 of ASP 6 imposes a specific set of considerations that will be applied when considering whether to approve a development application for a Rural use in the Residential Precinct. This, and the statement that 'rural development involving high capital investment, offensive trades, mushroom farms and/or of a long term nature will generally be discouraged', raise the question of whether ASP 6 has the effect of a prohibition as explained by his Honour Anderson J in Wines v Shire of Harvey [2000] WASCA 39 (Wines), at [12] [20].
68 It seems to me that it does. Similarly to the provision being considered in the Wines case, the matters required to be taken into account when considering a Rural use in the Residential Precinct, as well as the statement as to the types of Rural uses that 'will generally be discouraged', allow for approval of such uses only in exceptional circumstances.
69 Assuming for the purposes of this matter that the effect of the relevant provisions of DPS 2, upon adoption of ASP 6, was to render the respondents' existing lawful uses of the land nonconforming, the land will be injuriously affected if the Scheme prohibits, wholly or partially, the continuance of the nonconforming use or the erection, etcetera, of any building in connection with the nonconforming use. Relevantly, Pt VII of DPS 2 provides:
7.1 NON-CONFORMING USES
Except as otherwise provided in this scheme, no provision of the scheme shall be deemed to prevent:
(a) the continued use of any land or building for the purpose for which it was being lawfully used at the Gazettal date of the Scheme; or
(b) the carrying out of any development thereon for which, immediately prior to that time, an approval or approvals, lawfully required to authorise the development to be carried out, were duly obtained and are current, provided that any conditions stipulated in the approval or approvals shall be complied with and these conditions shall be enforced by Council as if they had been imposed under the Scheme; or
…
7.2 EXTENSIONS AND CHANGES TO A NON-CONFORMING USE
7.2.1 A person shall not alter or extend a non-conforming use or erect, alter or extend a building used in conjunction with a non-conforming use or change the use of land from a non-conforming use to another non-conforming use without first having applied for and obtained planning approval under the Scheme.
7.2.2 An application for Development Approval under this Clause shall be advertised in accordance with Clause 64 of the deemed provisions.
7.2.3 Where an application is for a change of use from an existing non-conforming use to another non-conforming use, the Council shall not grant its Development Approval unless the proposed use is:
(a) substantially less detrimental to the amenity of the locality than the existing nonconforming use; and
(b) in the opinion of the Council is closer to the intended purpose of the zone.
…
Conclusion
71 The adoption of ASP 6 did not equate to, and did not have the effect of, amending DPS 2. However, relevant provisions of DPS 2 in relation to the effect of an Agreed Structure Plan, which were part of the Scheme when it was made, had, upon the adoption of ASP 6, a potential to cause injurious affection to land.
72 Nothing in ASP 6, considered together with the relevant provisions of DPS 2, had the effect of reserving the respondents' land within the meaning of s 174(1)(a) of the PD Act.
73 Identification of the respondents' land as included within an area of 'Public Open Space' on the Structure Plan of ASP 6 did not have the effect of prohibiting development of the land for any purpose other than a public purpose within the meaning of s 174(1)(b) of the PD Act.
74 Assuming that the existing lawful use of the respondents' land as at the date of adoption of ASP 6 was rendered a nonconforming use, continuation of that nonconforming use was not prohibited by the Scheme considered together with ASP 6. Nor was the erection, alteration or extension on the land of any building in connection with, or in furtherance of, any nonconforming use of the land prohibited within the meaning of s 174(1)(c) of the PD Act.
75 Therefore, the question as to whether the respondents' land was injuriously affected by the making or amendment of DPS 2 in circumstances where ASP 6 was adopted, is answered in the negative. That is, the respondents' land has not been injuriously affected within the meaning of s 174 of the PD Act by operation of any of the provisions of DPS 2 considered together with ASP 6.
Orders
1. The application is granted.
2. The Tribunal finds that Lot 1 Wanneroo Road, Pearsall and Lot 8 Wanneroo Road, Pearsall are not injuriously affected by the City of Wanneroo District Planning Scheme No 2 considered in conjunction with Agreed Structure Plan No 6 East Wanneroo Cell 4 (Hocking and Pearsall) for the purposes of Pt 11 of the Planning and Development Act 2005 (WA).
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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