FRESHWATER CLAREMONT PTY LTD and TOWN OF CLAREMONT

[2011] WASAT 174

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   FRESHWATER CLAREMONT PTY LTD and TOWN OF CLAREMONT [2011] WASAT 174

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   18 OCTOBER 2011

DELIVERED          :   1 NOVEMBER 2011

FILE NO/S:   DR 154 of 2011

BETWEEN:   FRESHWATER CLAREMONT PTY LTD

Applicant

AND

TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning - Preliminary issue - Land reserved for Primary Regional Roads under Metropolitan Region Scheme - Land not zoned or reserved under local planning scheme - Remainder of site zoned under local planning scheme - Development application lodged with local authority for approval of mixed use commercial/residential development on reserved land and on land zoned under local planning scheme - Whether development approval is required under local planning scheme for development on land reserved under Metropolitan Region Scheme

Legislation:

Metropolitan Region Scheme, cl 5, cl 13, cl 24, cl 24(1)
Planning and Development Act 2005 (WA), s 16
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4, s 19(1)
Town of Claremont Town Planning Scheme No 3, cl 2, cl 5, cl 11(2), cl 11(3), cl 25(1), cl 83(4), cl 83(6), cl 83(6)(b), cl 83(6)(ii)
Western Australian Planning Commission Act 1985 (WA), s 20

Result:

Development approval is not required under the Town of Claremont Town Planning Scheme No. 3 for the portion of the proposed development which is on land reserved for 'Primary Regional Roads' under the Metropolitan Region Scheme

Category:    B

Representation:

Counsel:

Applicant:     Mr PJ McQueen with Ms CN Gleeson

Respondent:     Mr A Roberts

Solicitors:

Applicant:     Lavan Legal

Respondent:     McLeods Barristers & Solicitors

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

AB and State of Western Australia & Anor [2011] HCA 42

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Freshwater Claremont Pty Ltd sought development approval to construct a mixed use commercial/residential development on a property on Stirling Highway in Claremont.  The property is located within the Scheme Area of the Town of Claremont Town Planning Scheme No 3.  A part of the property is reserved for 'Primary Regional Roads' under the Metropolitan Regional Scheme and is not reserved or zoned under the Town of Claremont Town Planning Scheme No 3.  Clause 25(1) of the Town of Claremont Town Planning Scheme No 3 states that a person shall not carry out development 'of any land in the District' without obtaining the approval of the Town of Claremont under that Scheme.  The Tribunal was called upon to determine a preliminary issue as to whether approval is required under the Town of Claremont Town Planning Scheme No 3 for the portion of the proposed development which is on the reserved land.

2. The Tribunal determined that, on its proper interpretation, when read in the context of other relevant provisions of the Town of Claremont Town Planning Scheme No 3 and by reference to its evident purpose, cl 25(1) does not require development approval to be obtained in relation to development of land which is reserved under the Metropolitan Regional Scheme, for two reasons.  First, cl 25(1) requires a person who wishes to commence development to obtain 'the planning approval of the Council under this Scheme', whereas cl 5 declares the responsible authority in relation to a 'Regional Reservation' to be the Western Australian Planning Commission, rather than the Town of Claremont.  Second, when read in the context of cl 5, cl 11(2) and (3) and cl 83(4) of Town of Claremont Town Planning Scheme No 3, cl 25(1) excludes land shown on the Scheme Map as 'Regional Reservation' from the expression 'any land in the District'.

Introduction

1. On 28 March 2011, Freshwater Claremont Pty Ltd (Freshwater) lodged a development application with the Town of Claremont (Town or Council) in which Freshwater sought approval to demolish existing buildings and to construct a mixed use commercial/residential development at No 328 (Lots 9582, 9723 and 10240) Stirling Highway, Claremont (site).  A 29 ­ 32 metre wide portion of the site adjoining Stirling Highway is reserved for the purpose of 'Primary Regional Roads' under the Metropolitan Region Scheme (MRS) (reserved land).  The remainder of the site is zoned Urban under the MRS (zoned land). 

2. Under cl 2, the Town of Claremont Town Planning Scheme No 3 (TPS 3) applies to the whole of the Municipal District of the Town, including the site.  The zoned land is zoned Special Zone ­ Restricted Use under TPS 3.  However, the reserved land is neither zoned nor reserved under TPS 3. 

3. The proposed development consists of a three storey building on the zoned land and a six storey building on the reserved land, with a setback of 13 to 15 metres from Stirling Highway.

4. Clause 13 of the MRS provides that 'no person shall commence nor carry out any development on reserved land, other than the erection of a boundary fence, without first applying for and obtaining the written approval of the [Western Australian Planning] Commission to do so'. Clause 24(1) of the MRS relevantly requires the 'approval of the responsible authority under this scheme … for the development of land within areas zoned under this Part'. Under cl 5 of the MRS, the authority responsible for the carrying out of the MRS is the Western Australian Planning Commission (Commission) or, where the Commission delegates its power to another authority under s 16 of the Planning and Development Act 2005 (WA) (PD Act), such other authority.

5. On 27 July 2010, the Commission resolved to delegate, pursuant to s 16 of the PD Act, certain of its powers and functions relating to the MRS to local governments (delegation). Where a development application proposes development on land that is or abuts land reserved under the MRS for Primary Regional Roads, the delegation requires that the development application is to be referred to the relevant Public Authority for comment and recommendation before being determined by the local government. The delegation also states that, where the recommendation provided by the Public Authority to the local government is not acceptable to the local government, then the application is to be referred to Commission for determination.

6. As the site includes and otherwise abuts land reserved under the MRS for Primary Regional Roads, the Town referred the development application to the Department of Transport, which is the relevant Public Authority, under the delegation, for comment and recommendation.  The Department of Transport recommended that the proposed development should be approved.  As the Council wished to refuse the development application under the MRS, in accordance with the delegation, it referred the development application to the Commission for determination.  On 18 May 2011, the Commission granted development approval for the proposed development under the MRS.

7. At its meeting on 12 April 2011, the Council refused development approval under TPS 3 for the part of the proposed development on the zoned land, for a number of reasons.  At the same meeting, the Council also passed the following resolution:

   In the event approval is required under TPS 3 for that part of the development proposed [on] the reserved land, planning approval for that part of the development is refused for the reasons given [in relation to the refusal of the development application on the zoned land].

8. In this context, the parties have identified the following preliminary issues for determination by the Tribunal:

   1)Whether approval is required under TPS 3 for the portion of the proposed development which is on the reserved land.

   2)If the answer to issue 1 is yes, whether the development standards specified in Appendix VII of TPS 3 apply to the reserved land.

   3)If the answer to issue 1 is yes, does approval under the MRS substitute for, or satisfy, the requirement for approval under TPS 3?

Is development approval required under TPS 3 for development on the reserved land?

1. The resolution of the first preliminary issue turns on the proper interpretation of cl 25(1) of TPS 3.  Clause 25(1) of TPS 3 states as follows:

   A person shall not commence development of any land in the District without first having applied for and obtained the planning approval of the Council under this Scheme.

2. Mr A Roberts, counsel for the Town, advanced a literal interpretation of the meaning of cl 25(1) of TPS 3.  Mr Roberts submitted that cl 25(1) requires the development approval of the Council to be obtained for development on the reserved land, because the clause applies to 'development of any land in the District', including the reserved land. 

3. In contrast, Mr PJ McQueen, who appeared with Ms CN Gleeson on behalf of Freshwater, submitted that the meaning of cl 25(1) of TPS 3 cannot be construed in isolation, and that, when the clause is read in the context of other relevant provisions of TPS 3, on its proper interpretation, it does not require development approval of the Council in relation to development on the reserved land.  In particular, Mr McQueen referred to the legislative context found in cl 5, cl 11(2) and (3) and cl 83(4) of TPS 3.

4. As the High Court of Australia has recently confirmed in AB and State of Western Australia & Anor [2011] HCA 42 at [10]:

   What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes [Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28]. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397; [1955] HCA 27], Dixon CJ referred to the importance of the context, general purpose, policy and fairness of a statutory provision, as guides to its meaning. The modern approach to statutory interpretation uses 'context' in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed [CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2]. Judicial decisions which preceded the [legislation] may be relevant in this sense, but the task remains one of the construction of the [legislation].

5. Clause 5 of TPS 3 states as follows:

   The responsible authority for carrying out the Scheme is the Council of the Town of Claremont (herein referred to as 'the Council') except that where land is shown on the Scheme Map as 'Regional Reservation' the responsible authority shall be deemed to be the Western Australian Planning Commission and the provisions of the Metropolitan Region Scheme shall apply to such reservations.

6. The reserved land is shown on the Scheme Map as 'Regional Reservation' and, consequently, the responsible authority in respect of that land is the Commission (and not the Council) and the provisions of the MRS apply to that land.

7. Clause 11(2) and (3) of TPS 3 is in the following terms:

   (2)The land shown as 'Metropolitan Region Scheme Reserves' or 'Regional Reserves' on the Scheme Map are lands reserved under the Metropolitan Region Scheme and are shown on the Scheme Map in order to comply with the Metropolitan Region Town Planning Scheme Act, 1959, as amended. Those lands are not reserved by this Scheme. The provisions of the Metropolitan Region Scheme continue to apply to such reserves.

   (3)Except as otherwise provided in this Part[,] a person shall not carry out any development on land reserved under this Scheme, other than the erection of a boundary fence, without first applying for and obtaining the written approval of the Council.

8. Clause 83(4) of TPS 3 states as follows:

   An application for planning approval in respect of land which is wholly within a regional reserve shall be referred by the Council to the Commission for determination in accordance with the Metropolitan Region Scheme.  No separate determination of the application shall be made by the Council.

9. Mr Roberts also relied on cl 83(6) of TPS 3 which states as follows:

   An application for planning approval in respect of land which is ­

   (a)wholly zoned or reserved by the Scheme, or

   (b)partly within a regional reserve and partly zoned or reserved by the Scheme, or

   (c)affected by a gazetted notice of resolution made by the Commission under Clause 32 of the Metropolitan Region Scheme, or

   (d)within or partly within a Planning Control Area duly declared by the Commission

   shall be dealt with by the Council in accordance with the requirements of the Notice of Delegation published in the Government Gazette from time to time by the Commission acting pursuant to the provisions of section 20 of the Western Australian Planning Commission Act. Where that [N]otice of Delegation requires the application to be determined by the Commission, the procedure is as follows:

   (i)one copy of the application and supporting papers submitted by the applicant, shall within seven days of receipt of the application, be forwarded by the Council to the Commission for determination pursuant to the provisions of the Scheme and the Metropolitan Region [T]own Planning Scheme or the Metropolitan Region [T]own Planning Scheme Act 1959; and

   (ii)the Council shall retain the other copy of the application and supporting papers and determine the application in accordance with the provision of the Scheme.

   (iii)the Council may, within forty two days of receipt of that application (or such further period as the Commission may allow) forward to the Commission its recommendation as to the manner in which the application should be determined.

10. The Western Australian Planning Commission Act 1985 (WA) (WAPC Act) was repealed by s 4 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) (PD(CTP) Act). Under s 19(1) of the PD(CTP) Act, the reference in cl 83(6) of TPS 3 to s 20 of the WAPC Act includes a reference to the corresponding provision of the PD Act, namely s 16. As noted earlier, on 27 July 2010, the Commission resolved, pursuant to s 16 of the PD Act, to delegate certain of its powers and functions relating to the MRS to local governments.

11. The development application made by Freshwater on 28 March 2011 is an application for planning approval in respect of land which is 'partly within a regional reserve and partly zoned or reserved by the Scheme' (cl 83(6)(b) of TPS 3).  Mr Roberts submitted that the words 'the application' in cl 83(6)(ii) of TPS 3 refer to 'the application in its entirety', and not merely the application to the extent that it proposes development on land zoned by TPS 3.  Mr Roberts also submitted that the words 'the provision of the Scheme' in cl 83(6)(ii) of TPS 3 'includes cl 25(1) which requires that the approval of the [Council] be obtained for development of any land in the District'.  Mr Roberts acknowledged that, under cl 83(4) of TPS 3, where an application for development approval is in respect of land which is wholly within a regional reserve, it is to be determined by the Commission, and no separate determination of the application is to be made by the Council.  However, Mr Roberts submitted that:

    … where, as in this case, an application is for development of land partly subject to a MRS reservation and partly zoned by TPS 3, TPS 3 does not confine the determination required of the [Town] to the development of the zoned part of the land.  Under TPS 3, the respondent was required to determine the Application for the entire development.  The Commission was required to determine the Application in its entirety under the MRS.  The [Council] and Commission have done so.

12. The Tribunal considers that, on its proper interpretation, cl 25(1) of TPS 3 does not require development approval to be obtained under TPS 3 in relation to development of land shown on the Scheme Map as 'Regional Reservation', including the reserved land, for the following two reasons.

13. First, although cl 25(1) refers to 'development of any land in the District', it requires a person who wishes to commence development to obtain 'the planning approval of the Council under this Scheme'.  However, cl 5 of TPS 3 states that, where land is shown on the Scheme Map as 'Regional Reservation', the responsible authority for the carrying out of the Scheme is deemed to be the Commission, rather than the Council.  The fact that cl 5 declares the responsible authority, in relation to a Regional Reservation, to be the Commission, while cl 25(1) specifically requires 'the planning approval of the Council under this Scheme' (rather than the planning approval of the responsible authority), indicates that development approval is not required under cl 25(1) of TPS 3 for the carrying out of development on land reserved under the MRS.

14. Second, when read in the context of cl 5, cl 11(2) and (3) and cl 83(4) of TPS 3, on its proper interpretation, cl 25(1) excludes land shown on the Scheme Map as 'Regional Reservation' from the expression 'any land in the District'.  Although cl 5 refers to the Commission as the deemed 'responsible authority' for the carrying out of the Scheme, where the land is shown on the Scheme Map as 'Regional Reservation', cl 5 then specifically declares:

    … and the provisions of the Metropolitan Region Scheme shall apply to such reservations.

15. As Mr McQueen submitted, given that the MRS applies to regional reservations in any case, by virtue of the PD Act and the terms of the MRS itself, it was unnecessary to include this declaration in cl 5 of TPS 3 unless its inclusion was intended to indicate the intention of TPS 3 that the MRS applies to regional reservations to the exclusion of TPS 3. 

16. Furthermore, whereas cl 11 of TPS 3 specifically regulates and controls development on reserved land, and requires prior development approval of the Council for the carrying out of development on such land, it expressly declares that lands reserved under the MRS are not reserved by TPS 3 and, therefore, indicates that development approval under TPS 3 is not required for the development of regional reserves. 

17. Finally, cl 83(4) of TPS 3, which states that '[n]o separate determination of the application shall be made by the Council' where development is proposed 'wholly within a regional reserve', clearly indicates that TPS 3 does not intend to regulate the carrying out of development on regional reserves and that regional reserves are, therefore, excluded from the expression 'any land in the District' in cl 25(1) of TPS 3.

18. This interpretation accords with the evident purpose of cl 25(1) of TPS 3 which is for the Council to regulate and control development and land use in respect of which it is the responsible authority.  However, the Council is not the responsible authority for the carrying out of development on regional reserves (cl 5 of TPS 3).  While TPS 3 applies to the whole of the Municipal District of the Town (cl 2 of TPS 3), regional reserves are only shown on the Scheme Map 'in order to comply with' other legislation (cl 11(2) of TPS 3).  It is plainly not the intention of TPS 3 to regulate and control the carrying out of development on regional reserves.

19. Finally, cl 83(6) of TPS 3 does not indicate that development approval is required under TPS 3 to carry out development within a regional reserve, for three reasons.

20. First, it is apparent from its terms that the purpose of cl 83(6) of TPS 3 is to establish a procedure as to what is to occur when a notice of delegation in relation to a development application for approval under the MRS requires the development application to be determined by the Commission.  Irrespective of whether an application for development approval is in respect of land which is 'wholly zoned or reserved by the Scheme', 'partly within a regional reserve and partly zoned or reserved by the Scheme', 'affected by a gazetted notice of resolution made by the Commission under Clause 32 of the [MRS]' or 'within or partly within a Planning Control Area duly declared by the Commission', development approval will be required under the MRS and it is appropriate to establish a procedure as to what is to occur when the notice of delegation requires the application for development approval under the MRS to be determined by the Commission.  While a concurrent development approval under TPS 3 may also be required in order to carry out development for which development approval is required under the MRS, and so cl 83(6)(ii) refers to the retention by the Council of a copy of the application and supporting papers and the determination of the application for approval under TPS 3 in accordance with that instrument, having regard to its evident purpose, the clause does not purport or intend to extend the obligation to obtain development approval under TPS 3 to land within a regional reserve.

1. Second, although cl 83(6)(ii) refers to the determination by the Council of 'the application in accordance with the provision of the Scheme', the Council can only determine a development application in accordance with TPS 3 where approval of the application is required by TPS 3 and the Council is the responsible authority for the determination of the application.  However, the Scheme does not require development approval for the carrying out of development on a regional reserve and the Council is not the responsible authority under the Scheme in relation to a regional reserve.

2. Third, it is plain from cl 83(4) of TPS 3 that the Council has no authority to make any determination under TPS 3 in relation to development on land within a regional reserve.  It would be inconsistent with the clear intent of cl 83(4) of TPS 3 for the Council to have authority under cl 83(6) of TPS 3 to make a determination in relation to development on land within a regional reserve simply because the development application also proposes development on land that is not within a regional reserve. 

3. While the Town is correct in its submission that, in relation to a development application in respect of land partly within a regional reserve and partly zoned or reserved by TPS 3, 'the Commission [is] required to determine the [a]pplication in its entirety under the MRS', it does not follow that '[u]nder TPS 3, the [Council] was required to determine the [a]pplication for the entire development'.  The reason why the Commission is required to determine the application in its entirety under the MRS is that development approval is required from the Commission under the MRS for development on both the reserved land (under cl 13 of the MRS) and the zoned land (under cl 24 of the MRS).  However, development only requires approval from the Council where it is on land reserved or zoned under TPS 3.  Whereas the whole of the land to which the development application relates is reserved or zoned under the MRS, only part of the site, namely the zoned land, is either reserved or zoned under TPS 3.

4. Consequently, the words 'determine the application in accordance with the provision of the Scheme' in cl 83(6)(ii) of TPS 3 refer to a determination by the Council of the development application insofar as it proposes development on land that is reserved or zoned under TPS 3.

Conclusion

1. On its proper interpretation, when read in the context of other relevant provisions of TPS 3 and by reference to its evident purpose, cl 25(1) of TPS 3 does not require development approval to be obtained under TPS 3 in relation to development of land shown on the Scheme Map as 'Regional Reservation'.  Consequently, the first preliminary issue is answered as follows:

   Approval is not required under TPS 3 for the proportion of the proposed development which is on land reserved for 'Primary Regional Roads' under the MRS.

2. As development approval is not required for the portion of the proposed development that is on the regional reserve, preliminary issues 2 and 3 do not arise for determination.

Orders

1. The Tribunal makes the following orders:

   1.The first preliminary issue is answered as follows:

   Approval is not required under the Town of Claremont Town Planning Scheme No 3 for the portion of the proposed development which is on land reserved for 'Primary Regional Roads' under the Metropolitan Region Scheme.

   2.The proceeding is adjourned to a directions hearing at 11.30 am on 11 November 2011 in order to enable the parties to consider their positions in light of the determination of the preliminary issue.

I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE D R PARRY, DEPUTY PRESIDENT