DE JONGE and METROPOLITAN REDEVELOPMENT AUTHORITY

[2023] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   DE JONGE and METROPOLITAN REDEVELOPMENT AUTHORITY [2023] WASAT 91

MEMBER:   DR S WILLEY, SENIOR MEMBER

HEARD:   2 MAY 2023 AND 25 AUGUST 2023

DELIVERED          :   26 SEPTEMBER 2023

FILE NO/S:   DR 166 of 2022

BETWEEN:   TIMOTHY KLAAS AND LYNNETTE ROCHELLE DE JONGE

Applicants

AND

METROPOLITAN REDEVELOPMENT AUTHORITY

Respondent

Catchwords:

Town planning - Compensation for injurious affection arising from a redevelopment scheme - Question for the Tribunal - Effect of structure plan - Whether structure plan made under redevelopment scheme - Whether land is set aside either expressly or constructively for public purpose under the Scheme - Whether existence of discretion not to apply structure plan is a shield to injurious affection

Legislation:

Approvals and Related Reforms (No. 4) (Planning) Act 2010 (WA), s 68
Armadale Redevelopment Scheme No 2, cl 1.3,  cl 1.3(3), cl 1.4, cl 1.13, cl 1.13(2), cl 2.1, cl 2.2, cl 3.0, cl 3.4, cl 3.4.1, cl 4.1, cl 4.2, cl 4.7, cl 4.8(1), cl 5.4, cl 5.5, cl 5.6(1), cl 5.15(1), cl 5.15(2), cl 5.18, cl 5.18(1), cl 5.19, cl 5.19(1), cl 6.1, cl 6.2(1), cl 6.2(3), cl 6.4, cl 6.5, cl 6.6, cl 6.7, cl 7.1, cl 7.2, cl 7.4, cl 9.1(1), cl 9.1(2), cl 9.3(1), cl 9.4, cl 9.6, cl 9.6(2), cl 9.6(2)(a), cl 9.6(3), cl 9.6(4), cl 9.6(5), cl 9.9, Appendix 1, Appendix 2, Appendix 3, Appendix 4, Appendix 5, cl 1.3, Table 6.1, Table 6.2
Environmental Protection Act 1986 (WA), s 48F(2)
Interpretation Act 1984 (WA), s 5
Land Administration Act 1997 (WA)
Metropolitan Redevelopment Authority Act 2011 (WA), s 3, s 4, s 7(1)(a), s 7(1)(b)(i), s 7(2), s 18, s 20, s 29(1), s 30(5)(c), s 38(3), s 38(6)(a), s 38(7), s 41, s 42, s 45, s 46, s 47, s 48, s 51, s 53, s 53(1), s 53(2), s 60, s 66(1), s 66(1)(d), s 66(2), s 66(4), s 69, s 75, s 75(1), s 75(1)(a), s 75(1)(c), s 75(2), Pt 4, Pt 5, Pt 6, Div 3
Metropolitan Redevelopment Authority Bill 2011 (WA), cl 75
Metropolitan Redevelopment Authority Regulations 2011 (WA), reg 14
Metropolitan Region Scheme, cl 30(1)
Metropolitan Region Town Planning Scheme Act 1959 (WA) (repealed), s 36
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67, cl 67(1)
Planning and Development Act 2005 (WA), s 3(2), s 87(4), s 173, s 174, s 174(1), s 174(1)(a), s 174(1)(b), s 174(1)(c), s 176, s 176(1), s 177, s 177(1), s 180, s 184(3), s 184(4), s 187, s 188, s 192, s 198, s 199(2), Pt 7, Pt 11, Div 1, Div 2, Sch 7, cl 13(4), cl 15(1)
State Planning Policy 3.6 Infrastructure Contributions, cl 3
Town Planning and Development Act 1928 (WA) (repealed), s 12(2a)(b)(i)
Western Australian Planning Commission Act 1985 (WA) (repealed)
Wungong Urban Water Redevelopment Scheme 2007 (WA)

Result:

Finding that land is not injuriously affected

Category:    A

Representation:

Counsel:

Applicants	:	Mr KM Pettit SC
Respondent	:	Mr S Cobbett

Solicitors:

Applicants	:	Weeks & Co
Respondent	:	State Solicitor's Office

Cases referred to in decision(s):

Bond Corporation Pty Ltd v Western Australian Planning Commission [2000] WASCA 257; (2000) 110 LGERA 179

Folkestone v Metropolitan Region Planning Authority [1968] WAR 164; (1967) 16 LGRA 286

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273

Otago Pty Ltd and City of Cockburn [2021] WASAT 27

Plaintiff S927/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179

Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417

Town of East Fremantle v Denis James Cornell as Executor of the Estate of Jack Sydney and Jesse Veronica Cornell [2005] WASCA 18; (2005) 138 LGERA

Town of East Fremantle v Denis James Cornell as Executor of the Estates of Jack Sydney and Jessie Veronica Cornell [2005] WASCA 18

Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Timothy and Lynnette De Jonge (Applicants) together own 1442 Rowley Road, Wungong (Land).  They say their Land is injuriously affected by reason of the Armadale Redevelopment Scheme No 2 (Scheme).  The Metropolitan Redevelopment Authority (Authority or Respondent) disagrees. 

2. Pursuant to s 176(1) of the Planning and Development Act 2005 (WA) (PD Act), the question of whether Land is 'injuriously affected by the making or amendment of a planning scheme' is to be determined by the Tribunal. 

3. These reasons address the question of whether a portion of the Land, which is identified as a 'living stream' in a structure plan, is injuriously affected.  The contest is whether that designation is tantamount, or has the effect of, that portion of the Land being 'reserved under the [Scheme] for a public purpose'.

4. For the following reasons, I find that the Land is not injuriously affected for the purposes of s 176 of the PD Act.

Background

1. The following facts are agreed.  Accordingly, I find as follows.

2. The Land:

   (a)is known as Lot 20 on Diagram 59559 comprised in Certificate of Title Volume 2190 Folio 756;

   (b)is approximately 2.1022 ha;

   (c)is located within the City of Armadale, at the southern corner of Rowley Road and Eleventh Road;

   (d)is the Applicants' principal place of residence;

   (e)is within a 'redevelopment area' declared under the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act); and

   (f)is subject to the Scheme.

3. On or about 22 February 2021, the Applicants' lodged a development application for an ancillary dwelling on the Land with the Authority (Proposed Development).  The ancillary dwelling was to accommodate the Applicants' elderly parents.

4. During its assessment of the Proposed Development, the Authority sent to the Applicants a letter which explained that:

   Existing zoning

   The proposed development is located within a Living Stream, as per the approved Structure Plan.

   The purpose of a Living Stream is to provide for retention or relocation of an existing watercourse, which functions as an aquatic ecosystem that enhances biodiversity and water quality.  The area defined as Living Stream under an approved Structure Plan considers the need to provide a functioning drainage corridor, as required under the associated Local Water Management Strategy.  The location of the proposed ancillary dwelling will prejudice the future delivery of the Living Stream as a drainage corridor[.][1]

   [1] Exhibit 1, page 260.  The letter was dated 7 May 2021.

5. By letter dated 12 July 2021, the Authority advised the Applicants that the Proposed Development had been refused.  There was one reason for refusal:

   The proposed development is inconsistent with Chapter 3.5 of the Armadale Redevelopment Scheme 2, Chapter 2.8 of the Wungong Urban Water Design Guidelines, the Wungong Urban Water Public Open Space Policy and the precinct 16 - Ninth Road Structure Plan, as the location of the ancillary dwelling within the Living Stream is contrary to proper and orderly and planning as it represents a residential land use within a location zoned for drainage and recreational purposes, and will prejudice the delivery of a required drainage corridor.[2]

   [2] The decision letter is dated 8 July 2021.  It was sent by letter dated 12 July 2021. 

6. On or about 3 November 2021, the Applicants' solicitors made a claim for compensation for injurious affection in relation to that part of the Land that is designed as 'living stream'.  The Authority rejected that claim on or about 6 April 2022. 

7. The Applicants then made application to have the Tribunal determine whether the Land was injuriously affected pursuant to s 176 of the PD Act.

Issue for determination

1. There is ultimately one issue that I must resolve, being the question of whether the Land that is identified as 'living stream' is injuriously affected.  In addressing that ultimate issue, I must assess whether the 'living stream' designation is tantamount to the Land being zoned or reserved for a public purpose under the Scheme. 

2. For completeness, I should note that the Applicants do not contend that the Land is injuriously affected pursuant to s 174(1)(b) of the PD Act. That is to say, they do not assert that the Scheme permits development on the Land for no purpose other than a public purpose.[3]  The Applicants' case is that the Land is reserved for a public purpose under the Scheme.

   [3] Applicants' Outline of Submissions in Reply [11]; ts 13, 2 May 2023.

3. If the answer is that the Land is not reserved under the Scheme, no injurious affection arises for the purposes of s 174(1) of the PD Act and, therefore, s 75(1) of the MRA Act.

4. It should be noted that these reasons do not address the question of whether the Applicants are entitled to claim compensation, having regard to the issues addressed in Western Australian Planning Commission v Southregal Pty Ltd,[4] (Southregal) or the quantum of compensation, if any, that arises.  I am only focusing on the question of whether the Land is injuriously affected.

Applicants' case in overview

[4] Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 (Southregal).

1. The gravamen of the Applicants' case is that the word 'reserve' for the purposes of Pt 11 of the PD Act, in the context of the MRA Act, includes land that is designated in, or under, a redevelopment scheme to limit permissible uses to public purposes uses, regardless of whether such land is designated as a 'reserve'.

2. The designation of a portion of the Land as living stream is such that it limits the permissible uses to those that are for public purposes; the mere use of the alternate verbiage of 'living stream' does not avoid the application of Pt 11 of the PD Act.[5]

Respondent's case in overview

[5] Applicants' Statement of Issues, Facts and Contentions (SIFC) (Exhibit 2), para 12.

1. The Respondent's case is, in effect, that the Scheme includes reserves for public purposes and that no portion of the Land is included in a Scheme reserve. The Scheme does not use 'zones', and that a 'place code' does not discharge the same functions of zones and reserves, as is the case of a planning scheme made under the PD Act.

2. The Respondent's case is essentially that the Applicants' approach elides the distinction between:

   (a)land that is expressly reserved under the Scheme and the concept of 'contemplated' and 'preferred' uses for each (structure plan) Precinct; and

   (b)provisions in the Scheme concerning the vision for the future development of project areas and the content of strategic tools such as structure plans, that do not form part of the Scheme, to guide future planning activities and are not a core consideration in development assessment.[6]

The MRA Act

The MRA

[6] Respondent's SIFC (Exhibit 3), para 14. 

1. The MRA Act establishes the Authority[7] the functions of which are 'to plan, undertake, promote and coordinate the development of land in redevelopment areas in the metropolitan region'.[8] For that purpose, the Authority is to also 'prepare and keep under review strategic and policy documents in relation to the development of land in redevelopment areas' and, pursuant to Pt 5, 'prepare and keep under review a redevelopment scheme for each redevelopment area'.[9]

   [7] MRA Act, s 4.

   [8] MRA Act, s 7(1)(a).

   [9] MRA Act, s 7(1)(b)(i).

2. Under the MRA Act, 'development' is defined in s 3 to mean:

   (a)the erection, construction, demolition, alteration or carrying out of any building, excavation, or other works in, on, over, or under land; and

   (b)a material change in the use of land; and

   (c)any other act or activity in relation to land declared by regulation to constitute development,

   but does not include any work, act or activity declared by regulation not to constitute development.[10]

Declaration of a redevelopment area

[10] MRA Act, s 3.

1. Pursuant to Pt 4 of the MRA Act, the Governor, on the recommendation of the Minister, may make regulations declaring land to be a redevelopment area.[11] In performing its functions under the MRA Act in relation to a redevelopment area, the Authority must have regard to, and seek to implement, the objectives prescribed under s 30(5)(c) of the MRA Act in relation to the area.[12]

   [11] MRA Act, s 29(1).

   [12] MRA Act, s 7(2).

2. Regulations made under s 30(5)(c) of the MRA Act must, relevantly, prescribe the objectives of the redevelopment area, being matters that:

   …

   (i)are of importance to the planning and development of the redevelopment area; and

   (ii)must be taken into account in the preparation and approval of a redevelopment scheme for the area and the approval of development in the area.[13]

Redevelopment schemes

[13] MRA Act, s 30(5)(c).

1. A redevelopment scheme is prepared pursuant to Pt 5 of the MRA Act and may include any provision that will promote orderly and proper planning, development and management of a redevelopment area.[14]  A redevelopment scheme may include any provision that may be included in a local planning scheme and may also include arrangements for 'costs contributions' from landowners.[15]

   [14] MRA Act, s 38(3).

   [15] MRA Act, s 38(7).

2. In preparing a draft redevelopment scheme, the Authority must have regard to the objectives for the redevelopment area prescribed for the purposes of the MRA Act.[16] Pursuant to reg 14 of the Metropolitan Redevelopment Authority Regulations 2011 (WA) (MRA Regulations), the objectives of all the redevelopment areas are:

   (a)to build a sense of place by supporting high-quality urban design, heritage protection, public art and cultural activities that respond to Perth's environment, climate and lifestyle;

   (b)to promote economic wellbeing by supporting, where appropriate, development that facilitates investment and provides opportunity for local businesses and emerging industries to satisfy market demand;

   (c)to promote urban efficiency through infrastructure and buildings, the mix of land use and facilitating a critical mass of population and employment;

   (d)to enhance connectivity and reduce the need to travel by supporting development aimed at well-designed places that support walking, cycling and public transit;

   (e)to promote social inclusion by encouraging, where appropriate, a diverse range of housing and by supporting community infrastructure and activities and opportunities for visitors and residents to socialise;

   (f)to enhance environmental integrity by encouraging ecologically sustainable design, resource efficiency, recycling, renewable energy and protection of the local ecology.

   [16] MRA Act, s 38(6)(a).

3. A draft redevelopment scheme must be submitted to the Minister for approval to advertise.[17]  Following advertising, the draft development scheme must be submitted to the Minister for final approval.[18]  The Western Australian Planning Commission (WAPC) provides a recommendation to the Minister[19] who may either approve, refuse or approve the redevelopment scheme subject to amendments.[20]

   [17] MRA Act, s 41 and s 42.

   [18] MRA Act, s 45.

   [19] MRA Act, s 46. Contrary to the Applicants' submissions, the relevant 'Minister' for the purposes of the MRA Act is generally the Minister for Lands. The Minister for Planning has limited functions under the MRA Act. See for example MRA Act, s 20 and, s 60.

   [20] MRA Act, s 47.

4. Notice of an approved redevelopment scheme must be published in the Government Gazette (Gazette).  Such notice must include details of the approval and the commencement date.[21]

   [21] MRA Act, s 48.

5. Once a redevelopment scheme is prepared, approved and notice of that approval published in the Gazette, planning schemes made under the PD Act are disapplied.[22]  An approved redevelopment scheme has legislative effect[23] and is subsidiary legislation for the purposes of the Interpretation Act 1984 (WA).[24] 

Development control

[22] MRA Act, s 51.

[23] MRA Act, s 53(1).

[24] MRA Act, s 53(2).

1. Part 6 of the MRA Act deals with development control within a redevelopment area. Division 3 of Pt 6 deals with development control by the Authority. In determining a development application, the Authority must have regard to:

   (a)the approved redevelopment scheme that applies to the land on which the development is proposed;

   (b)the objectives for the redevelopment area in which the development is proposed that are prescribed under s 30(5)(c);

   (c)any submission received from a person notified under section 64;

   (d)the requirements of orderly and proper planning;

   (e)the desired amenity of the redevelopment area in which the development is proposed[.][25]

   [25] MRA Act, s 66(1).

2. The Authority may refuse or approve a development application[26] including a conditional approval.[27]  A right of review to the Tribunal is available.[28]

Injurious affection under the MRA Act

[26] MRA Act, s 66(2).

[27] MRA Act, s 66(4).

[28] MRA Act, s 69.

1. The MRA Act provides that Divs 1 and 2 and s 184(3), s 184(4), s 187 and s 188 of the PD Act apply, with any necessary changes, to land in a redevelopment area as if:

   (a)the approved redevelopment scheme for the redevelopment area  were a planning scheme; and

   (b)the Authority were a responsible authority under that Act; and

   (c)in the case of land reserved or zoned for a public purpose under the approved redevelopment scheme, the land were reserved for a public purpose under a planning scheme.[29]

   [29] MRA Act, s 75(1).

2. Compensation is not payable under the PD Act, as applied by s 75(1) of the MRA Act, if payment has been made for the same, or substantially the same, injurious affection under the PD Act, otherwise than in operation as applied by the MRA Act.[30]

The PD Act

[30] MRA Act, s 75(2).

1. Part 11 of the PD Act deals with compensation and acquisition. Section 173 provides as follows:

   (1)Subject to this Part any 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[.]

2. Section 174(1) provides that 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. Section 176(1) is in the following terms:

   A claimant or responsible authority may apply to the State Administrative Tribunal for determination of any question as to whether land is injuriously affected.

4. Pursuant to s 177(1), where land is reserved under a planning scheme for a public purpose, no compensation is payable until:

   …

   (a)the land is first sold following the date of the reservation; or

   (b)the responsible authority —

   (i)refuses an application made under the planning scheme for approval of development on the land; or

   (ii)grants approval of development on the land subject to conditions that are unacceptable to the applicant.

The Scheme

User guide and notes

1. The Scheme itself is divided into nine chapters.  It will be necessary to refer to a number of these chapters in some detail. 

2. At its commencement, the Scheme includes a User Guide and Notes column which do not form part of the statutory scheme text.  The User Guide describes the planning framework as follows:

Legislative tools	Statutory tools	Strategic tools
MRA Act	Development policies	Master plans
MRA Regulations	Planning policies	Structure plans
Scheme	Design guidelines	Local Development Plans
Heritage inventory	Strategies
Development contribution plans	Research papers

1. The User Guide provides that a structure plan:

   provides the defined zonings (including residential density) to support appropriate land uses and to guide subdivision, in accordance with the applicable master plan and objectives for the Scheme.  It provides for major structural elements; including major roads, open space, commercial and industrial area and environmentally sensitive areas.

Chapter 1 - Administration

1. Clause 1.3(3) provides that the Scheme comprises:

   (a)the Scheme Text;

   (b)the Scheme Map; and

   (c)the Structure Plan Area Map

2. Clause 1.4 provides that, unless the context otherwise requires, or unless it is otherwise provided for in Appendix 2 - Glossary of Terms or Appendix 3 - Defined Land Uses, words and expressions have the respective meanings given to them in the MRA Act and the PD Act.

3. Clause 1.13 deals with reserves for public purposes and states:

   (1)Certain land within the Scheme Area is set aside as reserves for public purposes.  Those reserves and their respective public purposes are delineated, identified and described as such on the Scheme Map.

   (2)Where compensation for injurious affection is claimed as a result of the operation of the provisions of Part 11 Divisions 1 and 2 and sections 184 (3) and (4), 187 and 188 of the Planning and Development Act 2005 the Authority may at its option elect to acquire the land so affected instead of paying compensation.

   (3)A claim for compensation is to be made in the form prescribed by the Planning and Development Act 2005 and addressed to the Authority.

   (4)In dealing with a development application relating to land reserved under the Scheme, the Authority is to have due regard to the ultimate purpose intended for the reserve.

4. It is not in contest that the only reserves identified in the Scheme are:

   Primary Regional Road

   Other Regional Road

   Rail Reserve

Chapter 2 - The Vision and Scheme Objectives

1. Clause 2.1 sets out the Scheme's vision.  Clause 2.2 is directed to 'delivering the vision' and states, relevantly:

   … The Scheme has the flexibility of an outcomes based approach to development.  It is supported by the Authority's Development Policies, Planning Policies, Design Guidelines and other planning tools to achieve the sustainable development of the Scheme Area[.]

2. Clause 2.3 includes the Scheme's objectives which states:

   The Scheme Objectives listed and described in this chapter must be taken into account in the preparation and approval of the planning framework for the Scheme Area and the assessment and determination of all applications for approval made under the Scheme.  These Scheme Objectives are:

   •Sense of Place;

   •Economic Wellbeing;

   •Urban Efficiency;

   •Connectivity;

   •Social Inclusion; and

   •Environmental Integrity.

   Development in accordance with the Scheme Objectives will ensure the Scheme Area develops in a sustainable manner which will enrich Armadale's role as a premier destination for people to live, work, visit and recreate within a vibrant, mixed use setting.

   All development proposals will be required to be consistent with the Scheme Objectives set out in this Chapter (clauses 2.3.1-2.3.6).  The Authority is to have due regard to these Objectives in discretionary decision making regarding the Scheme, including the assessment of:

   •Development Applications;

   •In-Principle Applications;

   •Structure Plan or Activity Centre Plan Applications;

   •Local Development Plan Applications; and

   •Subdivision Proposals

Chapter 3 - Project areas

1. Clause 3.0 provides that 'The [Scheme] is made up of several individual project areas'.  There are four such project areas.[31]  Each project area has a 'vision'.

   [31] Being:  Part A: Champion Lakes Project Area; Part B:  Forrestdale Project Area; Part C:  Kelmscott Project Area; and Part D:  Wungong Urban Water Project Area.

2. The Land is within Part D - Wungong Urban Water Project Area (Wungong Project Area).  Clause 3.4 sets out the Wungong Vision as follows, relevantly:

   …

   Development in the project area will exemplify the Scheme's Objectives, incorporating best practice water sensitive urban design measures, integrating with the site's natural drainage systems, and facilitating efficient use of resources and infrastructure.  The project area contains areas of high environmental and heritage significance that are to be protected and preserved within the public open space network, through the provision of environmental buffers and the designation of compatible land uses.

   A key feature of the project area will be a system of 'Park Avenues' and 'Living Streams' as multi-functional corridors which combine water management, movement and public open space functions.  These corridors, along with community parks, will provide opportunities for community interaction and enhanced physical wellbeing of the residents.

3. Clause 3.4.1 sets out that 'Development within the Wungong Project Area shall be in accordance with the District Water Management Strategy (DWMS) and will achieve best practice in sustainable urban development and urban water management, including wetland conservation'.

4. The Land is within Precinct 16 - Ninth Road (Precinct 16).  The Scheme states:

   The Ninth Road Precinct is located between Ninth Road to the north and Eleventh Road and the Wungong River to the south.  This precinct has the opportunity to deliver two neighbourhood centres with associated increased residential density.  Within the middle of the precinct a primary school will be located alongside the community centre on Ninth Road.

   Environmental assets such as living streams, Neerigen Brook and the Wungong River will be protected within public open space.

Chapter 4 - Policies and Design Guidelines

1. Clause 4.7 of the Scheme provides that 'all development' within the Scheme area 'is to generally comply with the Policies and Design Guidelines that are relevant to the nature and location of the proposed development'.

2. Clause 4.8(1) provides that, subject to the provisions of Chapter 5 of the Scheme:

   … a Policy or Design Guidelines shall not bind the Authority in respect of any Application for Approval to Undertake Development …, however the [MRA] shall have due regard to the provisions of relevant Policies and Design Guidelines and the objectives or outcomes which the Policy or Design Guidelines was designed to achieve.  

Chapter 5 - Development Management

1. Clause 5.4 provides, relevantly, that:

   …

   For the purposes of promoting the Scheme Vision and Objectives, in the assessment and determination of all applications, the Authority shall require the conservation and enhancement of significant environmental features and ensure that post development surface water quality is improved compared with pre-development surface water quality.  The Authority may require the improvement or redesign of any proposal to achieve a sustainable outcome that is of a quality acceptable to the Authority.

1. Clause 5.5 provides that in exercising its functions in relation to subdivision under s 18 of the MRA Act, or in providing advice in relation to subdivision within the Scheme area, the Authority shall have regard to a range of matters including, relevantly, any structure plan as well as orderly and proper planning.

2. Clause 5.6(1) provides that development approval is required from the Authority to undertake development on land within the Scheme area. 

3. Clause 5.15(1) provides that, in determining a development application, the Authority may undertake public consultation, seek comment from nearby property owners and occupiers, or other stakeholders.

4. Clause 5.15(2) is in the following terms:

   The Authority will undertake consultation for an application that in the opinion of the Authority: -

   (a)includes proposed land uses that necessitate public advertising in accordance with Chapter 6;

   (b)proposes a substantial variation to an adopted Design Guideline or Policy;

   (c)proposes a substantial variation to an approved Structure Plan or similar;

   (d)has the potential to impact negatively on amenity due to the bulk and scale or design of a development, or the operation of a development; or

   (e)necessitates consultation for any other reason, as determined by the Authority.

5. Clause 5.18 sets out the 'key matters for consideration' in determining any application made under the Scheme.  Clause 5.18(1) provides that in determining any such application, the Authority shall have due regard for:

   (a)the Scheme Vision and Objectives and the achievement of sustainable development;

   (b)clause 9.2, and all other relevant provisions of the Scheme;

   (c)any currently valid decision on an In-Principle Development Application, Structure Plan Application or a Local Development Plan Application;

   (d)any relevant planning document adopted under the Scheme, including but not limited to a Design Guideline, Policy, Heritage Inventory, or Development Contribution Plan;

   (e)a strategic master plan approved by the Authority for the relevant project or locality;

   (f)an environmental or water management plan for the relevant project or locality;

   (g)any submission received as a result of a referral to government bodies or public consultation, in accordance with clauses 5.14 and 5.15;

   (h)any specialised advice obtained under clause 5.16;

   (i)the requirements of orderly and proper planning; and

   (j)the current and intended amenity of the locality.

6. Clause 5.19 applies where a 'development application does not comply with a provision of the Scheme, or a provision of any other planning document adopted or approved under the Scheme'.  In such instances, cl 5.19(1) provides that the Authority may approve the application, if it is satisfied that the development:

   (a)is consistent with the Scheme Vision and Objectives;

   (b)is consistent with sustainable development and orderly and proper planning;

   (c)would not have a significant adverse impact on the current or intended amenity of the locality or the amenity of an affected land owner; and

   (d)would not compromise the development intent of the relevant project area and/or precinct.

Chapter 6 - Land use

1. Clause 6.1 introduces the chapter in the following terms:

   The Land Use Chapter sets out the provisions guiding the use of land within the Scheme Area.  Use of land or changing the use of land is generally considered to be "development" and may require development approval from the Authority, in accordance with Chapter 5 of the Scheme.

   This chapter establishes a land use system based on identifying the preferred activities for which a site should be used for, while generally allowing for a flexible approach to encourage mixed land use, diversity and economic prosperity.  The chapter also includes specific considerations for certain land uses, to enable a compatible land use mix in the Scheme Area.

2. Clause 6.2(1) outlines that the land use system in Chapter 6 is predominantly based on the Scheme objectives.  Clause 6.2(3) sets out that the Wungong Project Area consists of place codes which are identified in the Wungong Urban Water Master Plan (Master Plan).  The Master Plan is a plan for the entire Wungong Project Area. 

3. Under that Master Plan, the place codes that are relevant to Precinct 16 (which includes the Land) are:

   (a)Neighbourhood centre; and

   (b)Urban.

4. The Wungong Urban Water Design Guidelines (Wungong Design Guidelines), which I will discuss later in these reasons, includes development requirements for the place codes and explains in detail the 'living stream' concept. 

5. Clause 6.4 provides that the Authority 'has adopted a precinct based preferred and contemplated land use system.  The Scheme does not use land use zones'.

6. Clause 6.5 relates to 'preferred uses' which are 'land uses which are considered to contribute to the vision and intent for a location, as set out in Chapter 2 - Vision and Chapter 3 - Project Areas'. 

7. Clause 6.6 relates to 'contemplated uses' which 'are land uses which the Authority may consider suitable for a precinct if it can be shown that such a use would not detract from the precinct intent and the amenity of the locality'.

8. Clause 6.7 deals with 'uses not preferred or contemplated' which are uses which are defined in Table 6.1 but 'not included in a category that is shown in Table 6.2 as a preferred or contemplated use for a relevant precinct, the use or uses are generally considered to be inconsistent with the precinct intent and may be inappropriate for that precinct.  However, those uses may be considered for approval'. 

9. Table 6.1 identifies six land use categories.  For present purposes, the relevant categories are:

Land Use Category	Land Use Type
Category 2 - Commercial Business activities, professional services and other principally profit-based land uses of a non­retail, low impact nature.  The category does not include businesses of an industrial, entertainment or other moderate to high impact nature	Office Business Services Medical Centre Consulting Rooms Commercial Car Park Research & Development	Veterinarian Clinic Funeral Parlour Laundromat Dry Cleaning Premises Land Sales Office
Category 4 - Retail A place of business offering goods displayed on the premises for sales or hire to the public, and also includes premises for the provision of services of a personal nature.  May include the preparation of goods for sale on site but not manufactured.	Shop Shopping Complex Personal Services Market Liquor Store
Category 5 - Residential A building or portion of a building that is designed or adapted for habitation either as Permanent Residential – being private dwellings, or as Transient Residential - being accommodation provided for temporary periods, generally for commercial gain.	5A - Permanent Residential: Grouped Dwelling Dwelling Multiple Dwelling Aged Persons Accommodation Home Based Business Specific Purpose Accommodation Display Home Village	5B - Transient Residential: Bed and Breakfast Hostel Hotel Motel Serviced Apartments Short Stay Accommodation
Category 6 - Community Premises or land uses which provide essential services or leisure facilities to local residential and workers or the wider community, also referred to as 'social infrastructure'.  May include activities for commercial gain which provide social benefit.	Education Establishment Child Care Premises Hospital Place of Worship Public Open Space	Club Premises Commercial Hall Recreation and Sporting Facilities Community Facility
Category 7 - Dining and entertainment Premises designed and used to provide public entertainment or social interaction, principally dining and drinking. Usually involves extended/evening trading and may involve service of alcohol and amplified music. Includes land uses which may present moderate impacts on residential amenity, due to noise, patronage and hours of operation.	Entertainment Complex Restaurant/Café Cinema Night Club Tavern	Exhibition Centre Function Centre Small Bar Amusement and Gaming Centre Betting Agency Fast Food Outlet

1. Table 6.2 sets out the preferred and contemplated land uses within each precinct.  For Precinct 16, which includes the Land, the following preferred and contemplated land uses are identified:

Preferred land uses

Contemplated land uses

5A - Permanent Residential

Community

Commercial

Retail

Dining and entertainment

Chapter 7 - Development contributions

1. Chapter 7 relates to development contributions.  Clause 7.1 provides that 'effective redevelopment of the [Authority's] project areas requires the cost efficient provision of' inter alia, 'open space and community facilities'.  The Authority will 'ordinarily provide, or make plans to provide, the majority of new infrastructure within each project area prior to private landowners undertaking redevelopment on their land'.  The Authority will then seek to recoup the costs of that infrastructure from those who benefit utilising development contributions.

2. Clause 7.2 provides that any area shown on the Scheme Map may be considered as a separate development contribution area. 

3. Clause 7.4 sets out 'development costs' which includes providing or improving public open space, recreation reserves, waterway inlets as well as environmental remediation or enhancement of natural environments.

Chapter 9 - Requirements for Structure Plans, Activity Centre Plans and Local Development Plans[32]

[32] Chapter 8 relates to heritage protection and is not relevant.

1. Clause 9.1(1) provides as follows:

   To ensure the orderly and proper planning of the Scheme Area, the Authority may require the preparation of a Structure Plan for large, significant, or fragmented land holdings in, or partly within, the Scheme Area or an Activity Centre Plan to guide the types of land uses and the overall development (including built form) that is intended to occur within the activity centre.  This may be required where the Authority has yet to approve a strategic master plan or adopt Design Guidelines for the subject land.

2. Clause 9.1(2) provides that for the purpose of Chapter 9, each area shown shaded on the Structure Plan Area Map at Appendix 4 shall be considered to be a separate Structure Plan Area. 

3. Clause 9.3(1) provides that a structure plan must be prepared by the Authority or a landowner.

4. Clause 9.4 sets out the content of a structure plan and states that the structure plan is to be prepared generally in accordance with the WAPC's Structure Plan Framework[33] and contain detailed information, not limited to the following:

   [33] Structure Plan Framework, Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (August 2015).

   …

   (d)any foreshores, waterways and/or other environmental features;

   (e)water management in accordance with water sensitive urban design principles or any district water management strategy;

   (f)the response to relevant environmental, heritage or transport considerations;

   …

   (h)additional information to be provided for the Wungong Project Area, prepared in accordance with Appendix 5, including but not limited to:

   (i)Local Water Management Strategy;

   (ii)Wetland Management Plan;

   (iii)Foreshore Management Plan;

   (iv)Landscape and Irrigation Management Strategy;

   (v)Fauna Relocation and Management Plan;

   (vi)Strategic Acid Sulphate Soils Management Plan; and

   (vii)Acid Sulfate Soils Management Plan[.]

5. Clause 9.6 deals with the determination of a structure plan or activity centre plan and provides that an application for a structure plan is to be processed and determined by the Authority generally in accordance with the provisions of Chapter 5 of the Scheme. 

6. Clause 9.6(2) sets out a range of matters that the Authority is to have regard to in determining whether to approve a structure plan including:

   (a)the planning framework for the applicable Structure Plan area or Activity Centre Plan area, and any Development Policies, Planning Policies and Design Guidelines, strategic master plan, strategies, and Scheme provisions which apply to the land;

   (b)the Scheme Vision and Objectives and precinct intent;

   (c)how planning for the subject area is to be integrated with the surrounding land;

   (d)the design rationale for the proposed pattern of subdivision, land use and development;

   …

   (f)open space provision and management;

   (g)wastewater management, how the proposal incorporates the principles of water sensitive design and how it addresses the objectives of total water cycle management;

   (h)the provision of utility services;

   (i)the proposed method of implementation, including any cost sharing arrangements; and details of any staging of subdivision and development; and

   (j)environmental and water management plan including but not limited to the following;

   (i)District Water Management Strategy;

   (ii)Local Water Management Strategy;

   (iii)Wetland Management Plan;

   (iv)Foreshore Management Plan;

   (v)Landscape and Irrigation Management Strategy;

   (vi)Fauna Relocation and Management Plan;

   (vii)Strategic Acid Sulphate Soils Management Plan; and

   (viii)Acid Sulphate Soils Management Plan.

1. Clause 9.6(3) provides that a decision on an application for approval of a structure plan 'conveys the Authority's position on the proposed general layout and built form of the land holdings only and does not in any way constitute an approval or refusal to undertake development or subdivision'.  Clause 9.6(4) provides that an approved structure plan has effect for 10 years.

2. Clause 9.6(5) sets out that the Authority is to 'have due regard' to any valid decision to approve a subsequent development application or in providing advice in relation to any subdivision within the Scheme area.

3. Clause 9.9 deals with place code requirements.  Clause 9.9(1) sets out the following relevant site and development requirements for the following place codes:

Urban To provide a range of lot areas and types, with a variety of housing to meet the needs of different household types including aged and dependent persons dwellings and residential buildings.	Minimum lot size 160m2 380m2 (battleaxe lot)	Average lot size minimum 180m2 maximum 300m2
Suburban To provide primarily single detached housing at a range of low to medium residential densities.	395m2 (battleaxe lot)	maximum 571m2

Scheme appendices

Appendix 1

1. The Land is identified in the Scheme Map (Appendix 1) as being within the Wungong Project Area. It is not identified as a 'reserve for public purpose' on the Scheme Map. The only reserves identified in the Scheme are for transport purposes (primary and other regional roads as well as railways). There are no reserve categories for parks and recreation, conservation or water management or other public uses which one might find in a region planning scheme made under the PD Act.

Appendix 2

1. Appendix 2 includes the following defined terms:

Design Guideline	provide specific development requirements for precincts or site specific areas to ensure quality development outcomes adopted under Chapter 4 of this Scheme.
Master Plan	a strategic document that articulates the project vision, objectives and targets for the redevelopment area and/or precincts, including a map of proposed land uses and destinations. The master plan is not adopted as a statutory document under the Scheme.
Place Code	also referred to as Zones, means a code, which is spatially assigned on the Wungong Urban Water Master Plan, that identifies the intended development and land use types for certain land areas and which should generally be shown on the relevant Structure Plans as a corresponding zone.
Structure Plan	a framework to coordinate future land use, subdivision and development, including the provision of transport networks, public open space, utility and service networks approved under Chapter 9 of this Scheme.

Appendix 4

1. The Land is also within the Structure Plan Area set out in Appendix 4.

Appendix 5

1. Appendix 5 sets out the requirements for the preparation of the DWMS referred to in cl 3.4.1.  The requirements for a DWMS have largely been drawn from an attachment to Ministerial Statement No 762 (published on 4 March 2008). 

2. The Ministerial Statement was published pursuant to s 48F(2) of the Environmental Protection Act 1986 (WA), as it then stood in the context of the Wungong Urban Water Redevelopment Scheme 2007 (WA) (WUWRS).[34]

   [34] Respondent's answers to the Tribunal's questions of 14 June 2023, paras 3 to 8.

3. Appendix 5 provides, at cl 1.3, that the objectives of the DWMS are to:

   1)ensure that the quality of surface water post development is improved compared with pre-development surface water quality (the Operational Water Quality Objective);

   2)conserve or enhance significant environmental features;

   3)guide future hydrological studies for local structure plans, non-potable water source option, arterial drainage planning, floodplain mapping and storage requirements;

   4)offset, if necessary, any deterioration of water quality post development compared to pre-development;

   5)establish a comprehensive monitoring program to measure and detect changes in storm water quality to measure consistency with the Operational Water Quality Objective (1);

   6)Inform the preparation of structure plans.

Other planning documents

Master Plan

1. As I explained at [61], under the Master Plan the place codes that are relevant to Precinct 16 (which includes the Land) are:

   (a)Neighbourhood centre; and

   (b)Urban.

2. The Land is not identified as a 'living stream' in the Master Plan.

Structure Plan

1. The structure plans made under Chapter 9 are more focused and detailed than the broader Master Plan.[35]  However, the Master Plan is a relevant consideration when the Authority is considering whether to approve a structure plan.[36]

   [35] By way of an example, the Structure Plan identifies sites where development will be subject to bushfire management measures whereas the Master Plan does not.

   [36] Scheme, cl 9.6(2)(a) being a 'strategic master plan'.  The Authority 'approves' the structure plan:  cl 9.6(3).

2. The Structure Plan for Precinct 16 includes a legend which has two categories, being 'Place Codes' and 'Master Plan Elements'. 

3. The 'Master Plan Elements' shown on the Structure Plan are drawn from, and reflect, the 'Master Plan Elements' identified in the Master Plan.  However, there is a different spatial arrangement of these Master Plan Elements in the Structure Plan.  Unlike in the Master Plan, the living stream is shown on a portion of the Land in the Structure Plan. 

4. The place codes are similar to zoning in that they identify uses to which the relevant land may be put such as, for example, 'urban', 'suburban' or 'open space'.  Approximately half the Land is within the 'urban' place code.  No claim of injurious affection arises in relation to this portion of the Land.

5. The Master Plan Elements include roads, schools, community centres, archaeological sites, play fields and, relevantly, living streams.  As stated, the Structure Plan includes approximately half the Land as being a 'living stream'.

Wungong Design Guidelines

1. The development requirements for place codes are specified in the Wungong Design Guidelines.[37]  The Wungong Design Guidelines were prepared to 'guide development within the [Wungong Project Area] and ensure delivery of the vision and objectives of the [MRA Regulations, the Scheme and the Master Plan]'.[38]

   [37] Scheme, cl 6.2(3).

   [38] Wungong Design Guidelines, cl 1.1.

2. The Wungong Design Guidelines state:

   The Design Guidelines require structure planning, subdivision and development proposals within the Project Area to deliver high quality design outcomes whilst complementing the region's significant environmental and cultural assets and facilitating the desired character for each of the Project Area's fourteen (14) Precincts consistent with the applicable Place Code identified under the Master Plan or relevant structure plan.

   The Design Guidelines outline objectives and acceptable outcomes for structure planning, subdivision, built form and public realm outcomes within the Project Area.  The Design Guidelines provides a basis for the control of residential, non-residential and mixed use development in Activity Centres, Commercial, Urban, Suburban and Rural Residential Place Codes, and other forms of development in the public realm.

   For residential development in Urban, Suburban and Rural Residential Place Codes, the provisions of the Residential Design Codes will apply, except where stated otherwise in a Structure Plan and/or a Local Development Plan approved by the Authority or in the City of Armadale Local Planning Policy PLN 3.10 'Residential Design Codes Variations & R-MD Codes'.[39]

   [39] Wungong Design Guidelines, cl 1.1.

3. The Wungong Design Guidelines provide a detailed explanation of the 'living stream' concept.  The 'living stream' is not a place code and is not an aspect of 'active open space' or 'passive open space'.  It is a separate form of use - namely a drainage corridor which functions as a viable aquatic ecosystem - which may be co-located with open space. 

4. Chapter 2 of the Wungong Design Guidelines relates to structure planning.  For urban water management purposes, the Wungong Design Guidelines sets out the following:

   Objectives

   All Subdivision and Development within the Project Area will be designed to facilitate the implementation of innovative and best practice urban water management in accordance with water sensitive urban design principles.

   Acceptable Outcomes

   •All structure plans and associated Local Water Management Strategies (LWMS) are consistent with Scheme 2, the Master Plan and the approved District Water Management Strategy (DWMS).

   •All subdivision works are compliant with an approved Urban Water Management Plan (UWMP).

   •All environmental and water management plans are prepared in accordance with Appendix 5 of Scheme 2.  The following project-specific design criteria are to be demonstrated in the LWMS and Urban Water Management Plan in accordance with Appendix 4: Design Criteria to be Addressed in Local Water Management Strategies and Urban Water Management Plans of the Design Guidelines:

   •water supply and conservation;

   •stormwater;

   •groundwater;

   •living streams and watercourses;

   •wetlands;

   •water quality; irrigation for Public Open Spaces; and

   •water quality monitoring.[40]

   [40] Wungong Design Guidelines, cl 2.8.

5. If a living stream is to be altered in size or location, an amended Urban Water Management Plan (UWMP) is required.

6. The glossary explains that a living stream is:

   an established watercourse, relocated or retained in place in accordance with its depicted location on the Master Plan, landscaped and/or remediated to function as a viable aquatic ecosystem that enhances biodiversity and water quality.

7. Appendix 4 to the Wungong Design Guidelines, which relates to the preparation of UWMPs, provides a further explanation as to the living stream concept:

   4.Living Streams and Watercourses

   4.1.The tributary drains of the Wungong River are to be rehabilitated as Living Streams and watercourses as defined in the WUW Master Plan.  (Refer to the WUW Public Open Space Policy).

   4.2.Neerigen Brook North and Neerigen Brook South are to be generally maintained on their existing alignments, but realignment of Brickworks A & B drains (subject to approval by environmental regulators) and Birrega Main Drain are to be undertaken consistent with the WUW Master Plan (or an approved Structure Plan).

   4.3.Where water dependent ecosystems are impacted by drain relocation, environmental flows and/ or hydrological regimes will be maintained or restored consistent with requirements of the DBCA and the DWER.

   4.4.Regional flood management will need to demonstrate recognition of existing flow paths for upstream catchments, and provision of adequate widths in Living Streams and watercourses to safely accommodate the 1% AEP flood.

   4.5.All development is to be consistent with the Wungong Flood Modelling and Drainage Study and the Wungong Drainage and Water Management Plan.

   4.6.All Living Streams and watercourse design is to be in accordance with the WUW Public Open Space Policy and the WUW Foreshore Management Plan, DWER's Stormwater Management Manual for Western Australia (2004-2007) and the River R estoration Manual (Water and Rivers Commission/ Department of Environment 1999-2003).

Open Space Policy

1. The Wungong Urban Water Project - Public Open Space Policy (Open Space Policy) sets out the Authority's requirements for the provision of public open space within the Wungong Project Area. 

2. The Open Space Policy's objectives are to ensure that an appropriate amount of open space is provided and to 'integrate conservation and water management principles and functions within public open space including the protection and conservation of water courses and wetlands'.[41]

   [41] Open Space Policy, cl 3.2.

3. The Open Space Policy defines 'living streams' as either 'retained' or 'relocated' brook drains which are either to be retained or relocated in the general location.  Living streams should function as viable aquatic ecosystems that enhance biodiversity and water quality.

4. The Open Space Policy includes detailed guidelines on how living streams should be laid out, aligned and designed.[42]

Injurious affection:  the concept

Historical evolution

[42] Open Space Policy, cl 7.19.

1. Injurious affection, in the context of the PD Act, is a label that recognises the damage or deleterious effect that planning schemes can have on the value, and the use and enjoyment of, land. Injurious affection is sometimes referred to as 'planning blight'. Compensation for injurious affection is in interim payment which recognises this damage. However, compensation for injurious affection is only available in limited circumstances and, in all instances, must arise from the 'making or amendment of a planning scheme'.

2. In Otago and City of Cockburn (Otago),[43] the Tribunal explained the historical evolution of injurious affection in Western Australia by reference to the decision of the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission (Mount Lawley).[44] 

   [43] Otago Pty Ltd and City of Cockburn [2021] WASAT 27 (Otago) [125] (Pritchard P, Eddy SM).

   [44] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273.

3. Under s 36 of the former Metropolitan Region Town Planning Scheme Act 1959 (WA) (MRTPS Act), compensation was payable for injurious affection due to, or arising out of, the land being 'reserved under the Scheme for a public purpose'. In considering the proper construction of s 36, the Full Court had regard to the relevant legislative history, commencing with the 'Stephenson and Hepburn Report', prepared by Prof Gordon Stephenson and Alistair Hepburn for the State Government in 1955. In Mount Lawley, the Court observed:

   243… The authors recognised that, where all forms of development were prohibited on a particular parcel of land, the land should be reserved, requiring its subsequent acquisition (page 249).  They said that, while it would obviously be more advantageous for the Regional Planning Authority to make the acquisition immediately, this would be difficult to achieve without a considerable sum of money being available.  They went on to say … :

   It is important, however, to ensure that as and when these reservations are required the necessary land can be bought without any value accruing to it by reason of additional substantial development. …

   Consequently, it is considered that where development threatens a reservation for regional purposes, and provided no minor adjustment in detail is possible, the land should be acquired.

   In the case of some of the longer term regional proposals there is nothing to prevent the present use of the land being carried on for a number of years, and it is anticipated that in some of the outer areas this may well be the case.

   …

   The authors said … :

   Where land is required for a public purpose, and is shown as such in a town planning scheme, zoning does not always meet the case.  Even though the land may not be required for the public purpose for many years, and the present use may continue to be enjoyed during that time, the ultimate use will exclude private development.

   In a town planning scheme such land should be classified as a reservation which carries with it the inherent obligation on the part of the planning authority to purchase it.  As a planning scheme envisages development for many years ahead it is likely that a number of reservations will not actually be required for their planned use until perhaps one or two decades have passed, and it is possible that they need not be acquired until just before that time.  However, because the reservation virtually prevents the use of the land for other than its existing use and perhaps a limited extension, it is necessary to make provision for the reservation or any part of it to be acquired if the owner desires to develop it and the reservation prevents such development.

   (Emphasis added)

4. This discussion was quoted, with implicit approval, by the Court of Appeal in Scutti v City of Wanneroo (Scutti).[45] 

   [45] Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417 (Buss P, Murphy JA, Allanson J) [58].

5. In Otago, the Tribunal explained:

   127The Stephenson and Hepburn Report thus contemplated that in the course of town planning, it would be necessary to identify land which it was contemplated would ultimately be required for use for purposes inconsistent with the private development of that land.  The intended uses of that land meant that the land would ultimately need to be acquired from private landholders by government.  However, the ultimate purpose for the use of the land might not be pursued until many years into the 'life' of the planning scheme.  If that were the case, the land could remain in private ownership in the interim.  However, because the ultimate purpose for which the land was to be used would preclude any, or should at least preclude any significant, inconsistent development of the land in the interim, it was desirable for the land to be identified in some way in the planning scheme as earmarked for that ultimate purpose.  Furthermore, the intended ultimate purpose for which the land was to be used meant that it did not fall within the kinds of land uses encompassed by zoning designations traditionally employed in town planning schemes, so a different means of designating or identifying the land – by describing it as having been reserved for a public purpose – was used.  Furthermore, land reserved for a public purpose could then be acquired by the relevant public authority if the owner sought to develop the land in a manner inconsistent with the ultimate purpose for which the land was to be used.

6. In Mount Lawley, the Full Court quoted the Minister's speech in support of amendments to the MRTPS Act to include compensation provisions and said:

   253At the time of the introduction of these provisions, the then Minister … said …:

   The Bill also amends the compensation provisions in respect of the [MRS].  This amendment arises from a consideration of the financial resources of the metropolitan improvement fund and problems of planning authorities in other States where claims for compensation have totalled many millions of pounds – far beyond the resources of the responsible authorities[.]

   … [I]t is quite impossible to contemplate the acquisition immediately, or over a short period of time, of land which will not be required for many years ahead and the cost of which will, in the aggregate, run to many millions of pounds.  However, as the Act stands, the authority could be confronted with a heavy claim for compensation in respect of the whole of the land reserved under the scheme and far beyond its financial ability to meet.  Nevertheless, it is necessary that the land be reserved in the scheme for this future need; and the reservation imposes an obligation in respect of compensation.

   It can properly be argued that reservation under the scheme depreciates the value of land.  However, the depreciation is, in many cases, hypothetical and becomes real only when the land is sold at a price which reflects this depreciation, or when development is frustrated by as refusal of consent under the scheme. The amendment proposes that compensation for injurious affection be limited to two circumstances: where a sale is effected at a depressed value attributable to reservation under the scheme, or where consent to develop is refused on the ground of reservation under the scheme.

   (Emphasis added).

7. In Otago,[46] the Tribunal also referred to comments made by McLure JA (as her Honour then was) on the role of reservations in Western Australian planning legislation in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission.[47]  Her Honour there said:

   47… [T]he reservation of land for public purposes has a long history under Western Australian planning legislation as explained in [Mount Lawley].  The purpose of a reservation is to indicate the intention that the land will be purchased or taken by government for public purposes. … [P]urpose is to be determined by reference to the terms of the relevant scheme and the PRS [that is, the scheme which applied in that case] classifies land into that reserved for public purposes and other land for primarily (if not wholly) private uses.

Injurious affection by way of reservation for a public purpose

[46] Otago [129].

[47] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276. (Although that decision was the subject of a successful appeal to the High Court (see Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409) nothing in the appeal judgment cast doubt on the correctness of her Honour's explanation of the role of reservations under Western Australian planning legislation).

1. As may be discerned from the above discussion, the most common form of injurious affection arises from land being reserved in a planning scheme for a public purpose.  The damage that arises is the impact on the value, and the restriction on the use and enjoyment, of such land pending the acquisition of the land (and the payment of compensation) by the responsible authority.  So much is evident from that historical review on the role and purpose of reservations. 

2. The payment of compensation for injurious affection does not affect the transfer of land to the responsible authority.  It is an interim payment to recognise the damage caused by the planning scheme.  However, a responsible authority can elect to purchase the land in lieu of paying compensation for injurious affection.[48]  Where compensation for injurious affection is paid, the landowner still owns, and is responsible for maintaining, the land, pending its eventual acquisition. 

   [48] PD Act, s 187. See also cl 1.13(2) of the Scheme.

3. Upon the payment of compensation for injurious affection, a record of that payment - in the form of the percentage of the land's unaffected value that was paid - is then notated on the certificate of title.[49]  This percentage is then deducted from the compensation that is ultimately paid as and when the land is compulsorily acquired under the provisions of the Land Administration Act 1997 (WA).[50] 

   [49] PD Act, s 180.

   [50] PD Act, s 192.

4. It is also the case that the mere regulation of land, and land uses, by a planning scheme is not, of itself, injurious affection.[51] Since the commencement of the PD Act, the point of compensable injurious affection is only reached where the requirements of either s 174(1)(a), (b) or (c) of the PD Act are satisfied.

Injurious affection under the MRA Act

[51] Folkestone v Metropolitan Region Planning Authority [1968] WAR 164; (1967) 16 LGRA 286 (Virtue J).

1. As stated, s 75(1) of the MRA Act applies Divs 1 and 2, s 184(3) and s 184(4) and ss 187, 188 of the PD Act to land in a redevelopment area as if:

   (a)the approved redevelopment scheme were a planning scheme; and

   (b)the MRA were a responsible authority under the PD Act; and

   (c)in the case of land reserved or zoned for a public purpose under the approved redevelopment scheme, the land were reserved for a public purpose under a planning scheme[.]

2. The proper construction of s 75(1) of the MRA Act is not agreed between the parties. The Applicants contend that s 75(1)(c) does not engage ss 174(1)(b) or 174(1)(c) of the PD Act. They submit that s 75(1)(c) of the MRA Act combines reserves and land zoned for public purposes into one category which treats the land as if it were reserved under a redevelopment scheme.

3. The Respondent does not agree. It submits that the two forms of injurious affection under the PD Act (that is reservation under a planning scheme (s 174(1)(a)) and zoned land where the only permitted uses are for a public purpose (s 174(1)(b)) continue to have their own spheres of operation (although the two may overlap).

4. The Explanatory Memorandum for the Metropolitan Redevelopment Authority Bill 2011 (WA) does not take the matter much further.  In relation to cl 75 it says:

   This clause applies the provisions of the Planning and Development Act 2005 dealing with compensation for injurious affection to the MRA Act.

   In short, the effect is that a person may be entitled to compensation where the person suffers a loss because of the effect on their land of a reservation for a public purpose (for instance, for public open space or public infrastructure).  The entitlement to compensation arises when the landowner suffers actual loss because of the reservation.  Payment of such compensation is recognised by a caveat on title.  At a future time when the land is actually purchased or compulsorily taken, the purchase price or compensation paid reflects the past payment of compensation.

   Any liability to pay compensation attaches to the Authority, not to the State.

5. Ultimately, I find that nothing turns on this contest. With respect to the Applicants' construction, I agree that the words of s 75(1)(c) are clear and unambiguous.[52]   

   [52] Although I do not agree with the Applicants' submissions that s 174(1)(c) of the PD Act has no application to redevelopment schemes.

6. Section 75(1)(c) of the MRA Act simply makes it plain that a redevelopment scheme may either reserve or zone land for a public purpose. That being the case, if land is either zoned or reserved for a public purpose in a redevelopment scheme, s 75(1)(c) of the MRA Act requires that land to be treated as if it were reserved for a public purpose. In that scenario, regardless of whether the land is zoned or reserved, the injurious affection arises under s 174(1)(a) of the PD Act.

7. However, I do not consider that s 174(1)(b) of the PD Act is excluded by s 75(1)(c) of the MRA Act. That is to say, I agree with the Respondent that ss 174(1)(b) and s 174(1)(c) of the PD Act also apply to redevelopment schemes. In my view, clear words would be needed if that were not the case.

8. Unlike s 174(1)(a) of the PD Act, s 174(1)(b) does not focus on the label attached to land by a planning scheme. It looks only to the permissibility of uses on land within the scheme area.[53] 

   [53] Because land that is reserved is already accepted as being injuriously affected under s 174(1)(a): Avon Capital.

9. Section 174(1)(b) applies in circumstances where a planning regime may not expressly identify land as being required for a public purpose via the imposition of a reserve, but nevertheless the effect of the scheme is that no development is permitted other than for a public purpose. Since the decision of the Court of Appeal in Town of East Fremantle v Cornell,[54] it is settled law in Western Australia that if there are no permitted uses, zoned land can be injuriously affected.

   [54] Town of East Fremantle v Denis James Cornellas Executor of the Estates of Jack Sydney and Jessie Veronica Cornell [2005] WASCA 18; (2005) 138 LGERA (Murray J, Le Miere J, Jenkins J) (Cornell).

10. In Scutti, the Court of Appeal explained: 

    At least ordinarily, however, s 174(1)(b) is evidently intended to operate where there is no 'reservation' as such. Amongst other things, it means that the obligation to pay compensation for injurious affection cannot be avoided by simply not reserving the land for a public purpose in the first place, but, instead, providing in the scheme for no development other than for a public purpose.[55]

    [55] Scutti [134].

11. In Scutti, the Court of Appeal emphasised that ss 174(1)(a) and 174(1)(b) are intended to have their separation spheres of operation but may overlap. I agree with the Respondent that s 75(1)(c) of the MRA Act does not operate to exclude either ss 174(1)(b) or 174(1)(c).

The operation of the Scheme and the Authority's planning framework:  some general observations

The Scheme

1. Leaving to the side improvement schemes,[56] planning schemes made under the PD Act are generally what might be labelled 'zoning schemes'. These schemes include maps that either zone or reserve all the land within the scheme area and then, in the case of local planning schemes, put in place arrangements to regulate the use of land in the scheme area via a land use table.

   [56] Improvement Schemes are made pursuant to Pt 7 of the PD Act.

2. The Scheme is a variation on that theme.  It is a precinct­based scheme that does not use zones as its primary tool to control and regulate land use and development.  As I will come to explain, there is no direct link between the Scheme text and the land to which it applies.  That chasm is required to be filled by other planning instruments, namely structure plans.

3. The Scheme has legislative effect as subsidiary legislation.[57] Therefore, the Scheme is to be construed in accordance with the applicable canons of construction. I can see no reason why the principles that have developed in relation to the interpretation of planning schemes made under the PD Act, should not apply with equal force to redevelopment schemes made under the MRA Act.

   [57] MRA Act, s 53.

4. In this regard, I adopt the Tribunal's analysis in Otago as follows:

   134Before considering the terms of TPS3, we note that, as is the case with any subsidiary legislation, the construction of a local planning scheme is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context.  The meaning of the legislation must emerge from the statutory text, understood in its context, but also having regard to the statutory purpose being pursued.

   135We also bear in mind that planning schemes are not usually drafted by parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament.  Planning schemes should therefore be construed broadly rather than pedantically and with a sensible practical approach.  That is particularly important given that the terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies.  The Court of Appeal has cautioned against placing a counter-intuitive judicial gloss on the plain language of planning schemes because to do so would reduce the capacity of the range of persons who use such schemes to comprehend their meaning.  That having been said, the exercise nevertheless remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted. 

   (Citations omitted)

Project areas under the Scheme: the need for structure plans

1. Under the Scheme, all land is divided into four project areas.  Within each project area, land is further divided into various precincts, with the requirement that a structure plan be prepared for each.[58] 

   [58] Scheme, cl 9.1(2) read with Appendix 4. 

2. In this instance, the Land is within the Wungong Project Area and forms part of Precinct 16. 

3. Within each of these structure plan precincts, the majority of land is identified as being within a place code.  As stated, a place code is similar in effect to zoning.[59]

   [59] Scheme, Appendix 2.

4. In the case of Precinct 16, those place codes range from urban and suburban, a neighbourhood centre, active and passive space.  It is to be recalled here that the Land is not included in a place code in the Structure Plan.  Rather, it is identified as one of the 'Master Plan Elements'.

The Master Plan introduced the living stream concept

1. 'Master Plan Elements' were discussed in detail in the former WUWRS.  Master Plan Elements were identified in the Master Plan (discussed below).[60]  They included:

   [60] WUWRS, cl 3.10A(3).

Master Plan Elements

         Road Avenues

Community Centre

Park Avenues

Buch Forever Site

Conservation Category Wetlands

Aboriginal Heritage Site

River or Brook

Resource Enhancement Wetland

Living Stream

Foreshore Buffer

Floodway

Flood Plains

School

1. The WUWRS notes that some of these elements, such as wetlands and Bush Forever sites, are fixed and not the result of discretionary decision­making.[61]  The depiction of the Master Plan Elements is intended to be indicative of the present or possible future location of those elements.[62]  It is also intended that a structure plan may vary the presence or location of any Master Plan Element, including a living stream.[63]

   [61] WUWRS, cl 3.10A (4), (5). 

   [62] WUWRS, cl 3.10A (6). 

   [63] WUWRS, cl 3.10A (7). 

2. Coming back to the Scheme, it does not include a detailed explanation as to what a living stream is other than in cl 3.4 which states:

   [Living streams are] multi-functional corridors which combine water management, movement and public open space functions … will provide opportunities for community interaction and enhanced physical wellbeing of the residents[.]

3. As I have set out above, the 'living stream' concept is explained in more detail in the Wungong Design Guidelines as 'an established watercourse, relocated or retained in place in accordance with its depicted location on the Master Plan, landscaped and/or remediated to function as a viable aquatic ecosystem that enhances biodiversity and water quality'.  Likewise, as stated at [103], the Open Space Policy includes a similar definition.[64] 

Land uses under the Scheme

[64] Open Space Policy, cl 3.2.

1. Along with the place codes, which are identified in the Structure Plan, the range of preferred and contemplated land uses for each precinct are established via Tables 6.1 and 6.2 of the Scheme.  There are also uses that are not preferred or contemplated which are regarded, at least in general terms, as being inconsistent with the planning intent for the precinct.  Nevertheless, such uses may still be approved in the exercise of discretion.[65] Unlike with local planning schemes under the PD Act, there are no prohibited uses in the Scheme.[66] 

   [65] Scheme, cl 6.7.

   [66] Refer cl 67(1) of the Deemed Provisions. The Deemed Provisions being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).

2. It is not without significance that, in this instance, the Scheme says very little about any land within the Scheme area.  The Scheme Map merely allocates all land within the Scheme area to a structure plan precinct and then includes a table highlighting preferred and contemplated uses for each precinct.  No land is zoned or reserved.[67]  Unlike with local planning there are no as-of-right permitted uses under the Scheme.  All of this work is left to structure plans, by reference to the broader Master Plan. 

The Master Plan is the strategic vision for the Scheme

[67] Other than the MRS Reserves.

1. In the context of this redevelopment area, the Master Plan was, and remains, the ultimate and overarching vision for the Wungong Project Area.  The Master Plan predates the Scheme by over a decade and was prepared by the former Armadale Redevelopment Authority.  Under the former WUWRS, the Master Plan had statutory effect and operated as the Scheme Map.[68]  

   [68] WUWRS, cl 3.10A(1). 

2. However, under the Scheme, the Master Plan is now only a strategic document which articulates the Authority's 'project vision, objectives and targets for the redevelopment area and/or precincts'.[69]  The Scheme is the principal planning instrument by which Authority is empowered to plan for, and regulate, the development which will deliver the Authority's vision. [70] 

Structure plans are made under, but are not part of, the Scheme

[69] Scheme, Appendix 2.  As a result, amendments to the Master Plan required the amendment of the WUWRS.  That is no longer the case. 

[70] Scheme, cl 2.2.

1. However, it is equally clear that while the Scheme may be the Authority's principal legislative instrument, its implementation rests, heavily in my view, on the Structure Plan, and also the Wungong Design Guidelines and the Open Space Policy, in order to guide and coordinate development.   As I will come to explain, these instruments fill the void and serve to link and apply the Scheme text to the land in the Scheme area.    

2. I am also of the view, and so find, that, relevantly, the Structure Plan, the Wungong Design Guidelines and the Open Space Policy are each prepared or made under the Scheme.[71]  That is so because the preparation of these instruments is required to deliver the development anticipated and envisioned by the Scheme.  Furthermore, and even more importantly, the Scheme expressly contemplates, indeed authorises, their preparation.[72] 

   [71] Pursuant to s 5 of the Interpretation Act 1984 (WA), 'under', in relation to a written law or a provision of a written law, includes 'by', 'in accordance with', 'pursuant to' and 'by virtue of '.

   [72] Policies are prepared pursuant to cl 4.1, design guidelines are prepared pursuant to cl 4.2 and structure plans are prepared pursuant to cl 9.1(1).  However, the preparation of the Master Plan is not contemplated by the Scheme. 

3. However, a structure plan is not part of the Scheme; nor does it bind the Authority.  Clause 9.6(3) of the Scheme provides that the effect of a Structure Plan is that it 'conveys the Authority's position on the proposed general layout and built form of the land holdings only'. 

The Structure Plan and its effect:  Otago

1. I turn next to consider the consequence of the Land being identified as a 'living stream' in the Structure Plan. 

2. It is not enough for the Structure Plan to simply identify the Land as living stream in order to sustain a claim of injurious affection.  The injurious affection must result from the making or amendment of the Scheme and have the effect that the Land is either expressly, or constructively, reserved or zoned for a public purpose.

3. In short compass, the Respondent's case is that the Structure Plan is not part of the Scheme and therefore no injurious affection arises.  This is because the Structure Plan is only an instrument to which 'due regard' must be given.  As a result, the Authority is not bound by the Structure Plan and can approve a contrary or conflicting development.  For this reason, it cannot be said that the Land is 'reserved' under the Scheme.  The Respondent submits that the Structure Plan is, in effect, similar to that which was considered by the Tribunal in Otago.[73] 

   [73] Respondent's outline of submissions, paras 98 to 107.

4. In Otago, the Tribunal was dealing with a structure plan in circumstances where the local planning scheme, at a point in time, included provisions that required the structure plan - including the designations that attached to land such as zones and reserves within the structure plan - to 'have effect according to its tenor as if it were part of the scheme'. 

5. By reason of the commencement of the Deemed Provisions[74] on 19 October 2015, as well as subsequent amendments made to the planning scheme in August 2016, the Tribunal found as follows:

   175The effect of the Deemed Provisions, and of the amendments to TPS3 which followed, was that the provisions of the Structure Plan no longer had effect as if they were provisions of TPS3 itself. The Structure Plan could no longer be characterised as, in effect, an amendment of TPS3. Further, TPS3 as amended merely required that the planning authority would give 'due regard' to the Structure Plan, including its designation of part of the Subject Land as POS, but that did not preclude the planning authority from approving the development of the Land and critically, did not preclude the approval of development inconsistent with the intended use of the Land for POS. In our view, these changes meant that the designation of land as POS under the Structure Plan would no longer be given effect as a provision of TPS3 itself. In so far as the designation as POS constituted setting aside land for a public purpose other than by reference to a category of Local Reserve depicted on the Scheme Map, that designation could not be regarded as constituting the reservation of the land under a planning scheme. Furthermore, the fact that the City was no longer bound by the Structure Plan, meant that when considering an application for planning approval in relation to DA19, the City had far greater flexibility to approve the development of land designated as POS in the Structure Plan. That change undermined the effectiveness of that designation in setting aside the land from private development inconsistent with the intended use of the Land for POS in a manner analogous to a reservation under TPS3 itself. For these reasons, in our view, once TPS3 was amended to reflect the Deemed Provisions, the Subject Land clearly could not be regarded as 'reserved' for a public purpose 'under a planning scheme' within the meaning of s 174(1)(a) of the PD Act.

   176Otago conceded that because cl 27(1) of the Deemed Provisions was inconsistent with those provisions of TPS3 which provided that a structure plan would have the force and effect of that Scheme, then by virtue of s 257B(3) of the PD Act, cl 27(1) prevailed over those inconsistent provisions in TPS3. There did not appear to be any dispute between the parties that, if part of the Subject Land was reserved under TPS3 on 16 February 2010, it ceased to be so reserved either from the commencement of the Deemed Provisions on 15 October 2015, or from the commencement of the amendments to TPS3 on 26 August 2016.

   (Footnotes omitted)

   [74] Clause 27(1) of the Deemed Provisions provided that a decision-maker on an application for development approval or subdivision approval in an area covered by a structure plan that had been approved by the WAPC was required to have due regard to, but is not bound by, the structure plan when deciding the application.

1. While the Deemed Provisions are not part of the Scheme, the Respondent submits the result is the same.  That is to say, in the context of the Scheme, the Authority need only have 'due regard' to the Structure Plan in determining a development application.  For that reason, on the Respondent's case, as in Otago, no injurious affection arises.

2. The Applicants submit Otago is irrelevant because that case did not concern the MRA Act.[75]  For the reasons I develop below, I disagree with the Applicants.  I will return to discuss Otago later in these reasons. 

Consideration and disposition:  The Land is not reserved or zoned for a public purpose by the Scheme

[75] Applicants' outline of submissions in reply [14].

1. Ultimately, I find that the Applicants' claim that the Land is, in effect, reserved for a public purpose under the Scheme must fail.  My key findings are as follows.

1. The Respondent's expressio unius est exclusio alterius argument should not be accepted

1. The Respondent submits that, in effect, because the Scheme includes some reserves[76] (being Primary Regional Road, Other Regional Road, Rail Reserve - which reflect pre-existing MRS Reserves) there is no scope for land that is not expressly designated as a reserve to be found to nevertheless be tantamount to a reserve.  Put another way, the express reference to reserves in cl 1.13 of the Scheme means there can be no other forms of reserve.

   [76] Scheme, cl 1.13. 

2. That argument cannot be accepted for at least three reasons.  The first is the question of whether land is reserved or otherwise is not necessarily resolved as a matter of nomenclature, a point which the Respondent properly concedes.[77]

   [77] Exhibit 3, para 22. 

3. As the Tribunal explained in Otago, the inquiry is not into whether the word 'reserve' has been used.  That label is not essential.  The critical question is whether the Land can be said to be, either expressly, or constructively, 'reserved':

   that is, designated as being set apart for a particular use which constitutes a public purpose, and which ultimately require the purchase of acquisition of that land by a public authority, so that that public purpose may be realised, and which will preclude any, or any significant, inconsistent development of that land in the interim.[78]

   [78] Otago [132].

4. The second is that the argument is contrary to s 75(1)(a) of the MRA Act, which expressly provides that zoned land in a redevelopment scheme may well be regarded as being reserved for the purposes of Pt 11 of the PD Act.

5. The third is that s 75 of the MRA Act, read with Pt 11 of the PD Act, are beneficial provisions which, at least ordinarily, should be construed will all the generality that the words permit.[79] 

1. Living streams are mandatory under the Scheme but the question as to where they will be located is left open

   [79] Scutti [135]. (Buss P, Murphy JA, Allanson J) (Scutti). 

1. I accept the Applicants’ argument and find that living streams are mandatory under the Scheme.  The effect of cl 3.4 of the Scheme is that living streams are to be a mandatory feature of the Wungong Project Area, and in particular within Precinct 16.  The language of cl 3.4 is clear and unambiguous.

2. The use of the word will in the context of cl 3.4 applies as a modal auxiliary verb and operates as a command or promise.[80]  In relation to Precinct 16, the Scheme states that environmental assets such as living streams will be protected.  Those words have legislative effect.[81]

   [80] Macquarie Dictionary Online.

   [81] MRA Act, s 53.

3. However, beyond requiring four living streams in Project Area D, including one within Precinct 16, the Scheme does not identify where the living streams will be located.  As I have previously stated, that work is left to the structure plans.

1. Living streams are a public purpose

1. Following on from above, there is no argument that living streams are a public purpose.  I so find.  The Scheme, as well as the instruments made under it, make it clear that living streams are to operate as a ‘multi‑functional corridors which combine water management, movement and public open space functions’. 

2. There is nothing in that language that would suggest that a living stream is anything other than a community purpose.  Indeed, no doubt due to the need to accommodate such uses, Table 6.2 of the Scheme identifies ‘community’ as a preferred use within Precinct 16.  Community uses include ‘public open space’.  To the extent that living streams perform environmental and drainage functions, these are no doubt public purposes also.

4.     Living streams are tantamount to a reserve for a public purpose

1. The Scheme includes reserves but does not reserve land per se. As I have explained, the only reserves relate to transport infrastructure such as regional roads and rail. There are no reserves for parks and recreation, civil and cultural uses, public purposes or waterways which may be found in region planning schemes made under the PD Act.

2. The Scheme does not use zoning per se.  Rather it uses ‘place codes’ which ‘identify the intended development and land use types for certain land areas’.[82]  In practical terms, place codes are intended to operate as a form of zoning.  However, as with reserves, the Scheme does not directly apply a place code to any land in the Scheme area.

   [82] Scheme, Appendix 2. 

3. Under the Structure Plan, the relevant portion of the Land is neither a reserve nor a place code.  Living streams are instead identified as a Master Plan Element.  At [135] – [136] above, I explained the basis for, and the evolution of, Master Plan Elements from the original Master Plan through to the structure plans made under the Scheme.  By reference to the Master Plan and the Structure Plan, Master Plan Elements include ‘road avenues’, ‘living streams’, ‘schools’ and ‘community centres’.  These are plainly public purposes. 

4. For completeness, I should also add that there is nothing surprising or controversial about the location of the living stream being adjusted as more detailed site-specific planning was undertaken.  The WUWRS expressly stated that the Master Plan Elements shown on the Master Plan may not be settled or fixed until the more detailed structure plans are prepared.[83]  The WUWRS is part of the legislative history of the Scheme and informs its construction.[84] 

   [83] WUWRS, cl 3.10A (7). 

   [84] Plaintiff S927/2013 v Minister for Immigration and Border Protection [2014] HCA 24; (2014) 255 CLR 179 [24] (Crennan, Bell, Gageler and Keane JJ).

5. And so it goes.  The Structure Plan for Precinct 16 re-aligned the location of the living stream onto the Land.  But that does not mean that living streams are no longer to be regarded as mandatory.  All that has happened is that the detailed planning for Precinct 16 resulted in a decision to adjust its location.  However, the requirement to deliver that living stream, arising from cl 3.4 of the Scheme, remains.  The Structure Plan fixes the location.

6. I am satisfied, and so find, that the identification of the Land as a living stream means that it has, in effect, been set aside (that is ‘reserved’) for a public purpose under the Structure Plan. 

7. However, as I will come to explain, the setting aside of land for a public purpose in the Structure Plan does not, without more, satisfy the requirements of s 75(1)(c) of the MRA Act read with s 174(1)(a) of the PD Act.

1. The existence of discretion is not an answer to injurious affection

1. The Scheme adopts what it says is an outcome-based approach.  As Pritchard J explained in Marshall, the MRA Act confers on the Authority a broad discretion as to whether to approve development.[85]  In the context of development control under the Scheme, the decision as to whether to approve a proposed development is, in all instances, discretionary.  That is so, even in circumstances where the proposed development involves a land use in question that is neither a preferred nor contemplated use under the Scheme.

   [85] Marshallv Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall) (Pritchard J) [210].

2. The fact that it retains a discretion at the development control stage, and that it is not bound to apply the Structure Plan, are central planks in the Respondent's case that the Land is not injuriously affected.  The Respondent submits that the requirement to have 'due regard' to a structure plan means that, as a matter of law, the Authority cannot treat the Land ‘as if’ it was reserved under the Scheme.  Furthermore, the Respondent submits that the Structure Plan speaks to proposed future uses (such as living streams) which may be incorporated into the Scheme in the future.[86]

   [86] Respondent's outline of submissions, paras 109 to 116. 

3. Of course, I accept that as a matter of law, the requirement to 'have regard to'[87] and 'have due regard for',[88] amount to something less than a requirement that must be applied.[89]  In Marshall, Pritchard J found that the requirement is only that the relevant matter be 'actively' or 'positively' considered'.[90]

   [87] MRA Act, s 66(1)(d).

   [88] Scheme, cl 5.18(1).

   [89] Marshall [112] - [113].

   [90] Marshall [114] - [115].

4. However, I do not understand the law in Western Australia to be that the existence of discretion to not apply an instrument to be a complete defence to a claim for injurious affection.  The fact that there is discretion is no doubt relevant, but is, of itself, no answer to that question.  I do not understand Southregal, Scutti or Otago to suggest otherwise. 

5. Indeed, by way of an analogy, even where privately-owned land is reserved under the MRS, by reason of cl 30(1) of the MRS Text, the decision as to whether to approve a proposed development is still discretionary.

6. In exercising discretion under the MRS, the purpose of the reserve is to be considered, along with the orderly and proper planning and the preservation of amenities.  It is simply not the case that because the land is reserved for a public purpose, inconsistent development must be refused, a point acknowledged by the Court of Appeal in Scutti.[91] 

   [91] Scutti [132].

7. My point being that the existence of discretion is not, of itself, a shield to land being injuriously affected.

1. The Applicants' have now suffered a loss

1. In Bond Corporation Pty Ltd v WAPC (Bond),[92] the Full Court of the Supreme Court considered the operation of then s 36 of the MRTPS Act. Section 36(3) operates much like s 177 of the PD Act in terms of deferring compensation for injurious affection until a triggering event (either the first sale of the land following the reservation, or a development being refused or approved with unacceptable conditions).

   [92] Bond Corporation Pty Ltd v Western Australian Planning Commission [2000] WASCA 257; (2000) 110 LGERA 179 (Bond).

2. Ipp J (with whom Wallwork J and Owen J agreed) considered at some length the underlying philosophy of s 36 of the MRTPS Act in relation to the obligation to pay compensation. Ipp J recognised that the reservation of land for public purposes (which precluded or limited an owner's ability to develop that land) in and of itself necessarily resulted in a loss, in the form of a reduction in the market value of that land.[93] 

   [93] Bond [34].

3. However, at the point of reservation, the loss is no more than a 'paper loss'.  Only when the land was sold or unable to be developed would the loss become tangible and crystallise.[94]

   [94] Bond [35].

4. In Bond, his Honour discerned from these arrangements the philosophy underlying the deferment of payment of compensation as provided for by the legislation.  That philosophy being that compensation for injurious affection should only be payable when the owner of the land involved suffers a significantly more tangible loss than that which occurs at the point at which the land is reserved.[95]

   [95] Bond [37].

5. His Honour's reasoning explains that the legislative policy is that no right to compensation arises until a tangible loss is suffered by the landowner.

6. In this case, in my view, it is beyond doubt that the Applicants' have now suffered a tangible loss.  They sought approval for the Proposed Development which was, in effect, refused because the Land was required for a public purpose.  Their loss has shifted from being a paper loss to an actual loss. 

7. I find that the refusal of the Proposed Development has crystallised their loss as the setting aside of the Land in the Structure Plan has now, in a tangible sense, restricted their use and enjoyment of the Land.

8. However, as I will come to explain, the instrument which has, in effect, reserved the Land for a public purpose is the Structure Plan, not the Scheme. 

1. Development contributions arrangements are no answer to injurious affection

1. Neither the Applicant nor the Respondent focused on the question of whether the fact that a living stream is a costs contribution item informed the question of injurious affection.  Neither party wished to make detailed submissions on the point.[96]   However, for completeness, I will explain how the Scheme is intended to operate. 

   [96] Discussed at the directions hearing on 25 August 2023. 

2. The Scheme has been set up to operate as, in effect, a development contribution scheme.  As I have said, the Scheme does not include detailed mapping.  All that work is left to the ancillary instruments, namely structure plans. 

3. In my view, it is also relevant, as is made plain by the Explanatory Memorandum referred to at [119] above, that the Authority must pay any injurious affection that does arise.

4. However, unlike the WAPC, the Authority does not control the Metropolitan Region Improvement Account, (MRI Account), the funds for which derive from a hypothecated tax for the specific purpose of 'reviewing, amending, carrying out and giving effect to the [MRS]'.[97] However, pursuant to s 199(2) of the PD Act, the WAPC may apply money in the MRI Account[98] for the purposes of carrying out the MRA Act.

   [97] PD Act, Pt 12.

   [98] The MRI Account is defined to mean the Metropolitan Region Improvement Account established under s 198 of the PD Act.

5. In the context of the Scheme, the Authority's clear preference is for public infrastructure in redevelopment areas - such as living streams - to be funded and delivered by arrangements other than reservation or zoning for a public purpose and the payment of compensation to affected landowners.

6. Rather, the Authority's funding model for the Scheme is that such infrastructure is to be delivered via a development contributions (or costs contribution) regime, based on what is commonly termed the 'beneficiary pays' principle.[99]  Indeed, the Authority's development contribution report explains that living streams are a general cost contribution item because they benefit the entire Masterplan area.[100] 

   [99] See for example, State Planning Policy 3.6 Infrastructure Contributions, cl 3.

   [100] MRA Wungong Urban Water, Development Contribution Scheme Review Report, November 2012, cl 3.5.

7. At some level, the Authority's approach is understandable as, collectively, it is the landowners who will benefit from the uplift in land values that will result from the delivery of the Scheme Vision.  It is only fair that the costs of such public infrastructure are equitably shared amongst those 'beneficiaries'.

8. Nevertheless, the Authority's preference to deliver this public infrastructure by arrangements other than an express reservation under the Scheme, is no answer to the question whether, in a substantive sense, the land identified for a public purpose under its framework can result in injurious affection. 

9. Indeed, in fairness to the Respondent, it did not suggest otherwise.

1. The Land has not been set aside for a public purpose by the Scheme

1. Ultimately, despite my findings above, all of which go in the Applicants' favour, and with regret, the conclusion that I find I am compelled to reach is that the Land is not injuriously affected by the Scheme.  

2. The Scheme does not have the direct effect of either zoning or reserving the Land for a public purpose.   

3. On no view can it be said that the Structure Plan operates as part of the Scheme.  It is an instrument made under the Scheme but remains separate from the Scheme. 

4. In the end, I agree with the Respondent that this case comparable with Otago.  I also agree with, and adopt, the analysis in Otago set out at [150] above. As was the case in Otago, the Structure Plan is not entitled to be given effect as if were part of the Scheme. That conclusion is not altered by the absence of the Deemed Provisions nor by the operation of s 75(1)(c) of the MRA Act.

5. While the Applicants submitted that relying on Scutti, in the context of the MRA Act, would be a foundational error, I disagree.[101]  Scutti concerned the operation of s 174(1) of the PD Act. While the task here is coloured by s 75(1) of the MRA Act, the Court of Appeal's analysis remains relevant. The effect of s 75(1)(c) of the MRA Act is that it merely identifies that land in a redevelopment scheme may be zoned or reserved for a public purpose and, that being the case, that land is to be treated as if it were reserved under the redevelopment scheme for a public purpose for the purposes of s 174(1)(a) of the PD Act.

   [101] Applicants' outline of submissions in reply, [14]. 

6. On my understanding of the state of the law in Western Australia, as set out in Scutti, the critical issue, in so far as s 174(1)(a) is concerned, is that the land in question must, in effect, be reserved or set aside for a public purpose by the Scheme.  That can by the inclusion of the land in a scheme reserve for a public purpose[102] or by words in the scheme that have the effect of incorporating other planning instruments to be read with, or take effect as part of, the scheme. If those incorporated instruments have the effect that land is set aside for a public purpose under the scheme, then that land will be injuriously affected for the purposes of s 174(1)(a) of the PD Act.

   [102] Or by a zoning which permits only uses for a public purpose pursuant to s 75(1)(c) of the MRA Act.

7. For example, in Scutti the injurious affection arose from a structure plan which 'classified' land as a local open space reserve.  The Scheme text included words that required the structure plan to be treated 'as if its provisions were incorporated in [the] Scheme and … shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme.'   The Court of Appeal ultimately concluded that:

   The classification of the appellants' land as a reserve by ASP6 does not directly have the force of law, because the land is not directly reserved by DPS2, or by an amendment to DPS2.  However, the requirement that the land be treated as if it were reserved under DPS2, does have the force of law.[103]

   [103] Scutti [125(9)].

8. The Court of Appeal found that the words 'as if' in the Scheme had the force of law because of s 87(4) of the PD Act, which provides that a local planning scheme, once published in the Gazette, has 'full force and effect as if enacted by the [PD Act]'.

9. The fundamental point that arises from Scutti is that the injurious affection must arise from the Scheme itself, which may, or may not, expressly include incorporate other planning instruments to be read as part of the scheme.  In this instance, the Scheme does not expressly, nor constructively, incorporate the structure plans that are made under the Scheme, to be read, or take effect, as part of the Scheme. 

10. The opening words of s 174(1) make it clear that 'land is injuriously affected by reason of the making or amendment of a planning scheme, if and only if', relevantly, 'land is reserved under the planning scheme for a public purpose'.  

11. I cannot accept the Applicants' argument that simply because the Structure Plan is made under the Scheme, any reserve identified in the Structure Plan is taken to be, in effect, 'a reserve under the Scheme'.  I am bound by the reasoning in Scutti.  Unlike in Scutti, there is nothing in the Scheme which would lend weight to a submission that a reserve under a Structure Plan is to be treated 'as if' it was a reserve under the Scheme. 

1. Here, the Scheme simply does not go that far.  It does state that living streams are mandatory in the Wungong Project Area and even within Precinct 16, but it does not, identify which land will be affected by the living stream.  That role is performed by the Structure Plan which is not part of the Scheme.  The Scheme expressly disavows any hint that an approved structure plan is to be read as part of the Scheme.  Rather, a structure plan 'conveys the Authority's general position on the layout and built form' to be anticipated in an area.[104] 

   [104] Scheme, cl 9.6(3). 

2. The Scheme comprises the Scheme text, the Scheme Map and the Structure Plan Area Map but not the structure plans made under the Scheme.[105] There is nothing in the Scheme text or the MRA Act to support an argument that the Structure Plan operates as part of the Scheme. The consequence being that while the Land may be reserved under the Structure Plan, it is not reserved under the Scheme. This is, I find, the fundamental flaw in the Applicants' argument.

   [105] Scheme, cl 1.3(3). 

3. As I have set out above, the fact that the Authority must only give due regard to the Structure Plan is not, of itself, an answer to injurious affection.  My point being it is, self-evidently, possible to incorporate a structure plan into a scheme while at the same time including a requirement that the structure plan is only to be given due regard in exercise planning discretion.  However, that does not then mean that that structure plan is no longer incorporated into, or take effect as if it were part of, the planning scheme. 

4. Rather, what is fatal to the Applicants' case is that the Structure Plan is not part of the Scheme.  It is not read, nor applied, nor incorporated into the Scheme nor is it required to be treated or given effect as part of the Scheme.  While the Structure Plan applies to the Land, it does not apply, and does not take effect, as the Scheme.  It applies only as an ancillary document made under the Scheme. 

5. The words of incorporation of structure plans that were the basis of findings of injurious affection in Scutti and Otago are absent from the Scheme. The Applicants' case, in my view, urges to me to step beyond the parameters of where injurious affection may be said to arise under s 174(1)(a) that were explained by the Court of Appeal in Scutti.  I decline to do so. 

6. Likewise, the effect of the Applicants' submissions is that Otago was wrongly decided.  That is because in Otago, the structure plan in question was also made 'under the planning scheme'.  However, the Tribunal, correctly in my view, found that the effect of the Deemed Provisions, coupled with amendments to the planning scheme to remove text which incorporated approved structure plans, had the effect that the structure plan could no longer be given effect as part of the planning scheme.  Consequently, the land was no longer injuriously affected. 

7. In this instance, the Structure Plan was likewise made under the Scheme but that does not, without more, meet the threshold requirement of being 'reserved…under [the Scheme] for a public purpose'. For this reason, the Land has not been injuriously affected by the making or amendment of a planning scheme for the purposes of s 174(1)(a) of the PD Act.

8. This is because, while I am satisfied, and so find, that the Land has, in substance, been set aside by the Authority's planning framework for the Wungong Project Area, it has not been set aside by the Scheme. 

9. The answer to the question of where the living stream is required to be located within Precinct 16 is left open by the Scheme.  As the relevant history demonstrates, the location of the living stream has shifted over time under the Master Plan and the Structure Plan.  These instruments are ancillary to, but sit outside, the Scheme.

10. I am satisfied that the Land is injuriously affected and that it has been set aside for a public purpose, but not by Scheme.  Rather, the injurious affection arises only from the Structure Plan standing separate from the Scheme.

11. Based on my understanding of the applicable legal principles, I am compelled to find that the Land is not injuriously affected, as it has not been reserved or zoned for a public purpose by the making or amendment of the Scheme, so as to attract the compensation provisions within Pt 11 of the PD Act. The Applicants' case must fail.

    A final comment

12. Ultimately, unless my decision is reversed on appeal, the Authority has succeeded in this matter.  If it stands, the reality of this decision is that the Authority has managed to establish a framework which identifies and, in effect, sets aside land for a public purpose in a manner that does not rely on the Scheme. 

13. To me, the Authority's 'success' in this proceeding warrants some reflection. The terms of the MRA Act make it clear that injurious affection should be made available for landowners whose land is required for a public purpose. The MRA Act incorporates the concept of injurious affection arising from the PD Act, including its legislative history. As I have explained, that legislative history evinces a legislative policy that where land is identified and set aside for a public purpose, there is inherent obligation on the planning authority to compensate the affected landowner.

14. Here the Land has been set aside for drainage and environmental purposes under the Structure Plan.  That is the express reason why the Proposed Development was refused.  With respect, it is nonsense for the Authority to suggest, as it did in this case, that the Structure Plan is not a core planning document.  In the context of this planning framework, where the Scheme itself includes no planning detail of any consequence, the Structure Plan is the core planning document. I am satisfied that the Land is injuriously affected, but in a manner that does not attract compensation under the MRA Act.

15. While it may be the case that there is a development contributions regime in place to cover these expenses, one can imagine that is not really any comfort to the Applicants.  Up and until the Authority is ready to construct this living stream, the Applicants must continue to own and maintain the Land even though almost half of it has, in substance, been set aside for a public purpose in circumstances where the Authority's planning framework has been carefully designed to avoid the payment of any compensation for injurious affection. 

16. The Authority is an agent of the State.[106] However, the consequence of this result is that Parliament’s decision to include s 75 of the MRA Act, in so far as it applies to the Scheme, has been rendered, in practical terms, vacuous. So too, the inherent obligation that is said to arise when a planning authority puts in place arrangements to set aside land that is required for a public purpose, and where a landowner's loss, on account of that setting aside, crystallises.

    [106] MRA Act, s 5.

Order

The Tribunal orders:

1.The portion of the Land shown as 'living stream' on the Precinct 16 Ninth Road (G) Structure Plan is not injuriously affected for the purposes of s 176(1) of the Planning and Development Act 2005 (WA) and s 75(1) of the Metropolitan Redevelopment Authority Act 2011 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR S WILLEY, SENIOR MEMBER

26 SEPTEMBER 2023