FRANCO and CITY OF NEDLANDS - [2012] WASAT 53

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FRANCO and CITY OF NEDLANDS [2012] WASAT 53

MEMBER: MR P McNAB (MEMBER)

HEARD: 27 JULY 2011

DELIVERED : 28 JULY 2011

PUBLISHED : 19 MARCH 2012

FILE NO/S: DR 164 of 2011
DR 165 of 2011

BETWEEN: MICHAEL FRANCO
ROBERT FRANCO
Applicants
AND
CITY OF NEDLANDS
Respondent

Catchwords:

Town planning Development application Preliminary issue Residential use Residential R12.5 Measurement of exterior wall height Standard requiring mean natural ground level to be measured at base of walls Scheme defining mean natural ground level as measured at geometric horizontal centre of lot Interpretation of town planning schemes Principles of statutory interpretation Defined terms will have application unless the contrary intention appears Words and phrases: 'mean natural ground level'

Legislation:

City of Nedlands Town Planning Scheme No 2, cl 5.11(ii)
State Administrative Tribunal Act 2004 (WA), s 51(1)

Result:

Preliminary question answered 'Yes' in applicants' favour

Category: B

Representation:

Counsel:

Applicants: Mr P McQueen
Respondent: Mr C Slarke

Solicitors:

Applicants: Lavan Legal
Respondent: McLeods

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

Brown v Brook (1971) 125 CLR 275
Chiefari v Brisbane City Council [2005] QPELR 500
Duperouzel v Cameron [1973] WAR 181
Marshall v City of Rockingham [2006] WASAT 249
Optus Mobile Pty Ltd v City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11
Re Town Planning Appeal Tribunal; Ex Parte Environmental Protection Authority [2003] WASCA 248; reported (2003) 27 WAR 374

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter raised a preliminary issue. It involved the determination of this question: Whether a proposed development in Nedlands complied with cl 5.11(ii) of the City of Nedlands Town Planning Scheme No 2, having regard to the exterior wall height proposed.
It was common ground that the three buildings proposed by the applicants would exceed the maximum exterior wall height of 8.5 metres permitted by cl 5.11(ii) if measured according to the City of Nedlands' method (mean natural ground level measured at the base of the walls) but would not exceed the maximum exterior wall height of 8.5 metres if measured by the applicants' centroid method (mean natural ground level measured at the geometric centre of the lot). The problem arose because Town Planning Scheme No 2 itself defined 'mean natural ground level' as follows:
[T]hose levels as depicted by contour lines at 1 metre intervals on the Land and Surveys Department public plans Series B.G. 2000 34 as applicable to the Scheme Area measured at the geometric horizontal centre of the lot[.]
In undertaking the review the Tribunal had the benefit of a series of agreed facts. The Tribunal analysed the relevant interpretative principles and the matter of 'defined terms'.
The Tribunal concluded that legal principle favoured the use of the defined phrase whatever speculation there was as to the wall height clause's provenance. Town Planning Scheme No 2 and its defined terms had, after all, been given the force of law.
The Tribunal also concluded that the evident purpose of cl 5.11(ii) of Town Planning Scheme No 2 as a height control mechanism had been met; albeit not using the meaning apparently favoured over the last 11 years by the City of Nedlands.
The preliminary question was answered 'Yes' in the applicants' favour.
The Tribunal gave an oral decision on the day following the hearing. The Tribunal's reasons, taken from the transcript and formally revised and edited, were as follows.

Introduction

The preliminary issue referred to the Tribunal in these two interrelated proceedings is in the following terms, as agreed between the parties: Whether the proposed development complies with cl 5.11(ii) of the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme), having regard to the exterior wall height proposed.
Clause 5.11(ii) of TPS 2 deals with calculating certain wall heights from 'mean natural ground level'.
The parties have arrived at differing methods of calculating wall height in respect of certain proposed development (three buildings) at No 38 (Lot 51) Jutland Parade, Nedlands.

Background

As the respondent submits, it is not in dispute that:
(a)there is no power to vary the height limits of clause 5.11 [of TPS 2]; and
(b)the three buildings proposed [by the applicants] exceed the maximum exterior wall height permitted by clause 5.11(ii), if wall height is measured according to the City's method; and
(c)the three buildings proposed do not exceed the maximum exterior wall height permitted by clause 5.11(ii), if wall height is measured according to the Applicants' method.
The differences between the parties are summarised by the respondent as follows:
The City's practice in calculating 'mean natural ground level at the base of the walls' is to take the natural ground level at each end of the external wall and divide by two … [The respondent submits that] [t]his practice is plainly consistent with the express words of clause 5.11(ii).
By contrast the Applicants' method is to take the mean natural ground level measured at the geometric centre of the lot, and by adding 8.5 [metres] to that level the maximum wall height is set. [The respondent submits that] [w]hile the Applicants' method is consistent with the TPS 2 definition of 'mean natural ground level', it ignores the fact that the relevant words of clause 5.11(ii) are 'mean natural ground level at the base of the walls', and not simply 'mean natural ground level'.

Agreed facts

The parties have produced a set of agreed facts and related matters to assist the Tribunal, as follows (these have been edited for the sake of consistency; references to agreed documents omitted):
The Application and Approval
1.On 5 March 2010, the Applicant[s] lodged an application for development approval with the Respondent for the development of a dwelling on No. 38 (Lot 51) Jutland Parade.
2.Revised plans were filed with the Respondent on 1 June 2010, 28 October 2010, 27 January 2011 and 5 July 2011.
3.At its Ordinary Council Meeting on 27 April 2011, the Respondent resolved to refuse the Application.
The review proceedings
4.On 17 May 2011, the Applicant[s] made an application for review of the Respondent's refusal, pursuant to section 252(1) of the Planning and Development Act 2005 (WA) (Application for Review).
5.The two reasons for refusal, as set out in the Formal Notice of Refusal, which are relevant to the preliminary issue, provide as follows:
(a)the proposed dwelling is contrary to clause 5.11(i) of TPS 2 in that more than two residential storeys are proposed, an [sic] there is no discretion under TPS 2 for this provision to be varied;
(b)the proposed dwelling is contrary to clause 5.11(ii) of TPS 2, in that the height of exterior walls exceeds 8.5 [metres] from the mean natural ground level at the base of the walls, and there is no discretion under TPS 2 for this provision to be varied.
The planning framework
6.The subject land is:
6.1Zoned 'Residential R12.5' pursuant to TPS 2; and
6.2Partly zoned 'Urban' and partly reserved for 'Parks and Recreation' under the Metropolitan Region Scheme.
7.The maximum height of development within the TPS 2 scheme area is regulated by clause 5.11 of TPS 2.
8.Sub clause 5.11(i) of TPS 2, in relation to storeys, provides as follows:
No site shall be developed or building constructed … to contain more than two storeys directly above each other in the case of residential use or three storeys in the case of other uses, excluding areas for plant and equipment, storage, toilets and the parking of wheeled vehicles.
9.The term 'residential use' is not defined in TPS 2.
10.The term 'storey' is not defined in TPS 2. The Residential Design Codes[,] at Appendix 1, define 'storey' as follows:
[T]hat part of a building between floor levels. If there is no floor above, it is the part between the floor level and the ceiling[.]
11.Subclause 5.11(ii) of TPS 2, in relation to wall height, provides as follows:
No site shall be developed or building constructed … with the height of any part of an exterior wall greater than 8.5 [metres] from mean natural ground level at the base of the walls.
12.TPS 2 defines 'mean natural ground level' to mean, as follows:
[T]hose levels as depicted by contour lines at 1 metre intervals on the Land and Surveys Department public plans Series B.G. 2000 34 as applicable to the Scheme Area measured at the geometric horizontal centre of the lot[.]
13.No provision of TPS 2 allows for the requirements of clause 5.11(i) or 5.11(ii) to be varied.
The respondent also submits that:
TPS 2 has since its gazettal on 18 April 1985 included a building height limit in clause 5.11 … [t]he current form of TPS 2 came about as a consequence of Scheme Amendment No. 135 gazetted on 2 February 2001 …

Critical clauses in TPS 2

Thus, the two critical clauses under review as set out above are, first:
5.11(ii)No site shall be developed or building constructed … with the height of any part of the exterior wall greater than 8.5 [metres] from mean natural ground level at the base of the walls. [Emphasis added]
Secondly, there is the term 'mean natural ground level' which is defined in TPS 2, as follows:
[T]hose levels as depicted by contour lines at 1 metre intervals on the Land and Surveys Department public plans Series B.G. 2000 34 as applicable to the Scheme Area measured at the geometric horizontal centre of the lot[.]

Discussion of interpretative principles

The starting point here is the difficulty that is exposed in Optus Mobile Pty Ltd v City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11 (Optus) at [35] [37]. That case illustrates a possible tension between one reading of the principle known as the rule of law, which is to read an instrument as having the force of law more or less strictly because it attracts orthodox principles of statutory interpretation in contradistinction to a more 'liberal' approach applied in the construction of town planning schemes because of their context and drafting practices.
In particular, I noted in Optus, at [35], the case of Marshall v City of Rockingham [2006] WASAT 249 (Marshall), which discusses the more 'liberal' approach which is often applied in the reading of town planning schemes. This is in recognition of the fact that they 'are largely the work of town planners, not parliamentary counsel [and that] they should be read as a whole and applied in a practical and commonsense, and not an overly technical way': see Chiefari v Brisbane City Council [2005] QPELR 500. I noted in Marshall, at [36]:
Nevertheless, because Schemes have the force of law, orthodox legal principles of interpretation should prima facie apply in their construction.
In Optus, such principles were applied, resulting in an outcome that was contrary to what the City of Stirling had contended for. In Optus, the Tribunal determined that a heritage protection area (HPA) amendment to a town planning scheme, on its face limited only to that part of the scheme regulating residential zoned land, did not apply to another part of the scheme dealing with commercial zones. This was so despite there being some indications that the HPA might have application to commercial properties.
In short, the more 'liberal' approach opens the door to the danger that the history, context and purpose of a statutory planning instrument will substitute fully for the words of the instrument which is otherwise given the force of law.
Hence, the starting point in this case must be to commence with orthodox approaches and, as Mr P McQueen representing the applicants contended, the words used must be read first in their literal or grammatical sense. I note that Mr C Slarke representing the respondent also invoked the same principle.
This approach of applying the literal or grammatical reading extends, of course, to words which are themselves defined in an instrument being used to explain such words' meaning.
If any 'rewriting' of such a town planning scheme is to take place, it is only possible under ordinary statutory interpretation principles in three circumstances:
1)in the case where there are obvious drafting errors, and mistakes of that nature;
2)on the application of the orthodox 'golden rule' approach, which is to avoid the effect of literal or grammatical absurdity; and
3)possibly also, in some cases, by using a modern approach which requires reference to purpose and context.

Defined terms

I turn to the orthodox approach as regards defined terms which I consider is the key to the resolution of the preliminary issue. Defined terms, as they appear in TPS 2, will have application unless the contrary intention appears. It is clear from Re Town Planning Appeal Tribunal; Ex Parte Environmental Protection Authority [2003] WASCA 248; (2003) 27 WAR 374, at 399 (McKechnie J), that even if such words ('contrary intention') do not appear, they will be implied, and that is also consistent with Professor Pearce's work in Statutory Interpretation in Australia (DC Pearce & RS Geddes, 6th Edition, 2006) at [6.62].
I mention briefly two other passages cited by McKechnie J which give the background to the orthodox approach to definitional statements.
His Honour, at 399, cites Barwick CJ in Brown v Brook (1971) 125 CLR 275, at 277:
The meaning assigned by such a definition section is no more than, and perhaps even less than, a prima facie meaning always yielding to a context which betrays an intention to use the defined word in a different sense, with a less extensive or perhaps a more restrictive meaning. A definition section is not intended itself to express the parliamentary intention in an enacting provision unless the provision itself does not indicate the intention with which the defined word is used.
McKechnie J also cites, at 399, Burt J (as he then was) in Duperouzel v Cameron [1973] WAR 181, at 182:
This is because the word 'means' is a word of true definition and as such the words following it stand as an exclusive statement of what the subject expression includes. As by the Act the defined expression is to carry that meaning 'unless a contrary or other intention appears' the possibility always exists that an intention that it should bear a different meaning may appear, and should it appear, the definition must be departed from so as to accommodate that intention.
As Burt J indicates, 'the definition must be departed from so as to accommodate [the] intention'.
The question is: In what circumstances is it proper to depart from the specified definition? Pearce, in Statutory Interpretation in Australia, at [6.62], has two passages which I think assist in resolving that question. The first is:
The proper approach is to assume that the expression is used as defined and then [to] ask whether, in the particular context in which it appears, a contrary intention can be shown.
But, importantly, Pearce cautions against:
[The] too ready an acceptance of a contrary intention [which] only serves to make the job of drafter, and therefore interpreter, more difficult.
It is clear that, having regard to the authorities cited by Pearce at [3.7], one can, at common law, have regard to extrinsic material in the task of working out whether a contrary intention can be shown. That takes us to an inquiry into context and purpose. The extrinsic material here suggests (and I have in mind the statement of Ms J Heyes, the City's Manager of Statutory Planning, and the instruments referred to by Ms Heyes), that a 'new' formulation was to be advanced in Amendment 135 to TPS 2 which more accurately addressed and controlled wall height. On its face, it seems to be comprised of two interrelated elements:
•the first element is a reference to a level - that is, a particular type of natural ground level; and
•the second element is as to a measuring point that is, where that level is to be measured from.
Importantly, these two concepts are joined by the preposition 'at'. However, Mr Slarke argues that the phrase when taken as a composite expression displaces the defined meaning. In the alternative, Mr Slarke submits that if the composite expression does not by itself do that, its history, purpose and context mean that the defined term should not control the meaning of the phrase.
There are some indications in the history of the Scheme that, as to the level for calculating wall heights, some better averaging was contemplated better perhaps than any centroid method. However, even if the history suggested that simple averaging across any wall base was contemplated, the actual final words chosen by the drafter picked up the carefully defined term in TPS 2.
This seems to have been done and I say this with some caution, but it seems to be a fair reading of the historical material in possible 'ignorance' of its existence in TPS 2. The fact that the Council officers misdescribed the centroid method in a report to Council related to Amendment 135 suggests unfamiliarity with the prescribed method in their own town planning scheme.
With great respect to Mr Slarke, the Tribunal rejects the contention that the phrase should be regarded as a selfreferencing composite phrase. The real issue is a matter of statutory interpretation principle as to whether this 'mistake', however the issue is described, can be disregarded by the Tribunal, in effect, reading the words as if the paragraph said something such as 'averaged natural ground level across the base of the wall'.
In the Tribunal's view, the authorities which have been discussed above would only justify such an approach if the application of the phrase in the circumstances of a particular case led to an absurd or unreasonable result, or a result that was repugnant to the fundamental intention of the clause. In the Tribunal's view, neither end point can be comfortably reached in this case.
The work that the reference or application point that is, the base of the wall has to do may be uncertain. It may be an unnecessary addition to the clause. It may lead to speculation about its provenance or usefulness. But such matters are in this case irrelevant to displace the precisely defined term and effect chosen by the drafter to enact into law the amendment to TPS 2 that the Tribunal is presently considering.
That this was done in possible 'ignorance' of its existence as a precisely defined term does not displace the dominant rule of law principle that favours, except in more or less exceptional circumstances (in the sense of the statutory interpretation cases to that effect), certainty in the application and interpretation of what are, after all, laws. That certainty is reflected in the understandable caution to which I have referred that is needed in departing from defined terms.

Conclusion

Thus, there is an interim or partial planning outcome resolved by the answer to the preliminary question which ultimately might yet still lead to the development's rejection on its overall merits. Moreover, the evident purpose of cl 5.11(ii) of TPS 2 as a height control mechanism is met, albeit not using the measure apparently favoured for the last 11 years by the City of Nedlands, despite the language used in TPS 2.
In the Tribunal's view, the City of Nedlands should amend cl 5.11(ii) of TPS 2 if it seeks to depart from the terms that it has itself defined in TPS 2.
For these reasons the preliminary question will be answered 'Yes'.

Orders

The orders of the Tribunal are:
1.Pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA) proceedings DR 164/11 and DR 165/11 are to remain as separate proceedings but are to be heard and determined together, and evidence in one proceeding is to be evidence in the other proceeding.
2.For the reasons given orally on 28 July 2011, the preliminary question relating to exterior wall heights is answered, in the applicants' favour: 'Yes'.
3.The Tribunal records that the parties consent to the remaining preliminary question, relating to the number of storeys, being determined in the substantive hearing, if necessary and if the Tribunal so directs.
4.The balance of the proceedings are referred to mediation with the two other related proceedings (involving the Western Australian Planning Commission) already scheduled for 9 August 2011 at 10 am.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER