Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River

[2004] WASCA 8

GNARABUP BEACH PTY LTD -v- SHIRE OF AUGUSTA-MARGARET RIVER & ANOR [2004] WASCA 8

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 8
Case No:	SJA:1042/2002	Heard:	29 & 30 APRIL 2003
Coram:	EM HEENAN J	Delivered:	22/01/04
No of pages:	32	Judgment Part:	1 of 1
Result:	Appeal dismissed Declarations granted relating to construction of Town Planning Scheme
Category:	A
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Parties:	GNARABUP BEACH PTY LTD SHIRE OF AUGUSTA-MARGARET RIVER WESTERN AUSTRALIAN PLANNING COMMISSION GNARABUP BEACH PTY LTD (ACN 057 494 881)
Catchwords:	Town planning Structure plan Transmission by local authority of structure plan to Western Australian Planning Commission with recommendations for substantial modifications Objection by owner of land Appeal by land owner to Town Planning Appeal Tribunal dismissed for want of jurisdiction Whether right of appeal exists in relation to transmission of structure plan by local authority to Western Australian Planning Commission for approval with or without recommendations for modifications Competency of appeal to Town Planning Appeal Tribunal Town planning Shire of Augusta-Margaret River Town Planning Scheme No 18 Construction of Town Planning Scheme Extent of power of Western Australian Planning Commission to deal with structure plan submitted for approval Claim for declarations
Legislation:	Town Planning and Development Act 1928 Western Australian Planning Commission Act 1985
Case References:	Catlow v Accident Compensation Commission (1989) 167 CLR 543 City of Marion v Becker (1973) 6 SASR 13 City of South Perth v Fairway Heights [1981] WAR 51 Hancock Development Corporation Pty Ltd v City of Tea Tree Gulley (1986) 42 SASR 584 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Re Minister for Planning; Ex parte City of Canning (1998) 101 LGERA 284 Re Shire of Augusta-Margaret River; Ex parte Gnarabup Beach Pty Ltd [2001] WASC 15 Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 The Queen v City of Salisbury (1986) 42 SASR 557 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 BP Australia Ltd v Dragoon Holdings Pty Ltd, unreported; SCt of WA (Ipp J); Library No 8840; 18 April 1991 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Craig v State of South Australia (1995) 184 CLR 163 Dumbreck v City of Gosnells; Town Planning Appeal Tribunal; Appeal No 59 of 1999; 30 March 2000 Industry Research and Development Board v Unisys Information Services Australia Pty Ltd (1997) 77 FCR 552 Ingram v Western Australian Planning Commission [2003] WASCA 77 Levy v State of Victoria (1997) 189 CLR 579 Marshall v Minister for Planning (2001) 113 LGERA 21 Newcastle City Council v GIO General Limited (1997) 191 CLR 85 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71 Parrett v Secretary, Department of Family and Community Services [2002] FCA 716 R v Sharma (2002) 54 NSWLR 300 Re Stevenson [1992] 2 QdR 651 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors (2000) 48 NSWLR 548 Scurr v Brisbane City Council (1973) 133 CLR 242 Yaksich v Town Planning Board, unreported; TPAT No 15 of 1979; 19 December 1979

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GNARABUP BEACH PTY LTD -v- SHIRE OF AUGUSTA-MARGARET RIVER & ANOR [2004] WASCA 8 CORAM : EM HEENAN J HEARD : 29 & 30 APRIL 2003 DELIVERED : 22 JANUARY 2004 FILE NO/S : SJA 1042 of 2002 MATTER : On appeal from the Town Planning Appeal Tribunal

and

Town Planning and Development Act 1928

BETWEEN : GNARABUP BEACH PTY LTD

Appellant

AND

SHIRE OF AUGUSTA-MARGARET RIVER
First Respondent

WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent

FILE NO/S : CIV 2022 of 2002 MATTER : Section 25(6) of the Supreme Court Act 1935 (WA)

BETWEEN : GNARABUP BEACH PTY LTD (ACN 057 494 881)

Plaintiff

AND

(Page 2)

WESTERN AUSTRALIAN PLANNING COMMISSION
First Defendant

SHIRE OF AUGUSTA-MARGARET RIVER
Second Defendant

Catchwords:

Town planning - Structure plan - Transmission by local authority of structure plan to Western Australian Planning Commission with recommendations for substantial modifications - Objection by owner of land - Appeal by land owner to Town Planning Appeal Tribunal dismissed for want of jurisdiction - Whether right of appeal exists in relation to transmission of structure plan by local authority to Western Australian Planning Commission for approval with or without recommendations for modifications - Competency of appeal to Town Planning Appeal Tribunal

Town planning - Shire of Augusta-Margaret River Town Planning Scheme No 18 - Construction of Town Planning Scheme - Extent of power of Western Australian Planning Commission to deal with structure plan submitted for approval - Claim for declarations

Legislation:

Town Planning and Development Act 1928

Western Australian Planning Commission Act 1985

Result:

Appeal dismissed

Declarations granted relating to construction of Town Planning Scheme

(Page 3)

Category: A

Representation:

SJA 1042 of 2002

Counsel:

Appellant : Mr C L Zelestis QC & Mr M J Flint
First Respondent : Mr M J Buss QC & Mr A Roberts
Second Respondent : Mr R M Mitchell

Solicitors:

Appellant : Phillips Fox
First Respondent : Minter Ellison
Second Respondent : State Crown Solicitor

CIV 2022 of 2002

Counsel:

Plaintiff : Mr C L Zelestis QC & Mr M J Flint
First Defendant : Mr R M Mitchell
Second Defendant : Mr M J Buss QC & Mr A Roberts

Solicitors:

Plaintiff : Phillips Fox
First Defendant : State Crown Solicitor
Second Defendant : Minter Ellison

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

Catlow v Accident Compensation Commission (1989) 167 CLR 543
City of Marion v Becker (1973) 6 SASR 13
City of South Perth v Fairway Heights [1981] WAR 51
Hancock Development Corporation Pty Ltd v City of Tea Tree Gulley (1986) 42 SASR 584
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Re Minister for Planning; Ex parte City of Canning (1998) 101 LGERA 284


(Page 4)

Re Shire of Augusta-Margaret River; Ex parte Gnarabup Beach Pty Ltd [2001] WASC 15
Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150
The Queen v City of Salisbury (1986) 42 SASR 557

Case(s) also cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
BP Australia Ltd v Dragoon Holdings Pty Ltd, unreported; SCt of WA (Ipp J); Library No 8840; 18 April 1991
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Craig v State of South Australia (1995) 184 CLR 163
Dumbreck v City of Gosnells; Town Planning Appeal Tribunal; Appeal No 59 of 1999; 30 March 2000
Industry Research and Development Board v Unisys Information Services Australia Pty Ltd (1997) 77 FCR 552
Ingram v Western Australian Planning Commission [2003] WASCA 77
Levy v State of Victoria (1997) 189 CLR 579
Marshall v Minister for Planning (2001) 113 LGERA 21
Newcastle City Council v GIO General Limited (1997) 191 CLR 85
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71
Parrett v Secretary, Department of Family and Community Services [2002] FCA 716 (7 June 2002)
R v Sharma (2002) 54 NSWLR 300
Re Stevenson [1992] 2 QdR 651
Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors (2000) 48 NSWLR 548
Scurr v Brisbane City Council (1973) 133 CLR 242
Yaksich v Town Planning Board, unreported; TPAT No 15 of 1979; 19 December 1979


(Page 5)

1 EM HEENAN J: The appeal and the originating summons before the court are further steps in a long history of litigation relating to proposals for the development of land owned by the plaintiff, Gnarabup Beach Pty Ltd ("Gnarabup Beach"), immediately to the south of Prevelly Park in the Shire of Augusta-Margaret River and close to the coastline. The subject land comprises all of the Development Zone under the Shire of Augusta-Margaret River Town Planning Scheme No 18 ("the Scheme") which is west of Wallcliffe Road. This is readily identifiable from Plan No 1 of the Gnarabup Beach Estate Structure Plan for the Development Zone annexed to a notice of appeal dated 5 September 2001 to the Town Planning Appeal Tribunal of Western Australia.

2 The appellant, Gnarabup Beach, prepared a Structure Plan for the Development Zone dated August 2000 and lodged it with the Shire of Augusta-Margaret River ("the Shire") under cover of a letter dated 7 August 2000. The preparation of a Structure Plan, to be approved as required by the Town Planning Scheme, was one of the steps necessary to provide for the subdivision and development of the land under the provisions of cl 3.2.2 of the Scheme. The Structure Plan, as prepared by Gnarabup Beach deals with both existing and future development and subdivision within the Development Zone. In particular, it contains a subdivision and development guide plan for the land which is within the Development Zone to the west of Wallcliffe Road.

3 On 15 December 2000 the second respondent, the Western Australian Planning Commission, approved the subdivision of the land within the Development Zone west of Wallcliffe Road into four large lots, plus areas for public open space and drainage.

4 The Structure Plan, had been advertised by the Shire. At a meeting of the Council of the first respondent on 16 July 2001, the Shire resolved to forward the Structure Plan and copies of the submissions received during the public exhibition period to the second respondent ("the Commission") together with a number of recommended modifications pursuant to cl 3.3.5 of the Scheme. Generally speaking, these recommended modifications proposed a more restricted development and subdivision than proposed by the appellant in the Structure Plan as originally prepared and advertised. Aggrieved at the decision of the Shire to resolve to submit the Structure Plan to the Commission with the recommended modifications, Gnarabup Beach instituted an appeal to the Town Planning Appeal Tribunal, relying upon appeal provisions in the Town Planning Scheme, against the resolution of the Shire.

(Page 6)

5 That appeal was heard by the Town Planning Appeals Tribunal ("TPAT") in November and December 2001 and, by a decision of 28 February 2002, the TPAT dismissed the appeal on the basis that no right of appeal from the resolution of the Shire to submit the Structure Plan with recommendations for modifications existed so that, consequently, the TPAT had no jurisdiction to hear or determine the appeal.

6 Accordingly, the present appeal (SJA 1042 of 2002) brought to this Court under s 54B of the Town Planning and Development Act 1928 is from the decision of the TPAT dismissing the appeal brought to it by Gnarabup Beach on the grounds of want of jurisdiction. Clearly, therefore, it is an appeal from the TPAT involving a question of law and, therefore, an appeal which may be brought as of right to this Court under s 54B(2) of that Act. When instituted the only parties to this appeal were the appellant, Gnarabup Beach, and the first respondent, the Shire of Augusta-Margaret River. However, the Western Australian Planning Commission applied by summons dated 6 April 2003 to be joined as a second respondent to the appeal. Written submissions were filed by the Commission to the effect that it had an interest in and could be affected by any decision on the appeal because it was then considering the Structure Plan and recommendations of the Shire with a view to deciding whether or not it should be approved under the provisions of the Town Planning Scheme. There were no objections to the joinder of the Commission as a second respondent to the appeal. I was satisfied that joinder was in the interests of finally determining the question in issue in these proceedings and would accord procedural fairness to a body affected by the decision. An order for joinder was made on 29 April 2003 and the Commission was heard by counsel upon the appeal. One other procedural step must be noted. The first respondent, the Shire, sought and was granted leave to file a notice of contention under RSC O 65, r 12 and O 63, r 9(2) seeking to support the decision of the Town Planning Appeal Tribunal to dismiss the appeal on additional grounds.

7 It is convenient to deal first with appeal SJA 1042 of 2002 because it involves the one discrete question of law concerning whether or not a right of appeal exists from the resolution of the Shire. Before doing this, however, it is appropriate to make brief reference to the originating summons (CIV 2022 of 2002) because related issues arise which require the explanation of the background similar to, but slightly more extensive than, that relating to the appeal. In the originating summons the plaintiff, Gnarabup Beach, seeks declarations as to the meanings of provisions in the Town Planning Scheme which may or will affect the basis upon which

(Page 7)

the Structure Plan is considered by the Commission and the relevant criteria for approval of the Structure Plan by the Commission.

Right of appeal

8 Gnarabup Beach submits that it had a right of appeal to the Town Planning Appeal Tribunal by reason of s 8A, s 39 and s 44 of the Town Planning and Development Act and pursuant to cl 8.5 of the Scheme. Relevantly, these provide:

"8A(1) Subject to this section, if –

(a) under a Town Planning Scheme, the grant of any consent, permission, approval or authorisation is in the discretion of the responsible authority;

(b) a person has applied to the authority for such grant; and

(c) the authority has refused the application or has granted it subject to any condition,


the applicant may appeal to the Minister against the authority's decision in accordance with Part V.

(2) Subsection (1) does not affect the operation of a right of appeal contained in a town planning scheme; but, where rights of appeal are available under a scheme and under subsection (1), the commencement of an appeal under one extinguishes the right to appeal under the other."

...

"39(1) An appeal may be made to the Minister or to the Appeal Tribunal but the commencement of an appeal to one extinguishes any right of appeal to the other.

(2) When the Minister or the Appeal Tribunal, as the case may be, makes a determination on an appeal that determination has effect according to its tenor.

...

42(1) For the purposes of this Part [Pt V] there shall be constituted an appeal tribunal, to be known as the Town Planning Appeal Tribunal.

(Page 8)

...

44 The Appeal Tribunal shall hear and determine all appeals referred to it under this Part and the regulations or rules and may allow an appeal with or without conditions, affix further conditions, or dismiss the appeal either in whole or in part."

Shire of Augusta-Margaret River Town Planning Scheme No 18, cl 8.5 provides:

"Appeals

An applicant aggrieved by a decision of the Council in respect of the exercise of a discretionary power under the Scheme may appeal in accordance with Part 5 of the Act and the rules and regulations made pursuant to the Act."


There are similarities between the reference in cl 8.5 of the Scheme to "the exercise of a discretionary power under the Scheme" and the provisions of subs 8A(1)(a) of the Act which provide for an appeal if, under a Scheme, "the grant of any consent, permission, approval or other authorisation is in the discretion of the responsible authority", but it is important to accept that the provisions of a Scheme, including Scheme 18 of the first respondent, have full force and effect as if enacted by the Town Planning and Development Act itself (s 7(3)). Consequently, the appellant is entitled to rely upon either a right of appeal which might be available under the Act or under the particular Scheme, if applicable to the particular circumstances, but not both. The appeal to the TPAT appears to have been taken under cl 8.5 of the Scheme (Reasons [35]). Hence, it becomes necessary to consider whether, in this particular case, the first respondent was exercising a discretionary power under its Scheme (cl 8.5). It is also, perhaps, prudent to consider whether under the Scheme, the grant of any consent, permission, approval or other authorisation was in the discretion of the responsible authority, namely, the Shire – s 8A(1). Consequently, for a proper characterisation of the role of the first respondent in dealing with a Structure Plan submitted to it, I shall consider both the Scheme and the Act.

9 There is no express provision in the Act referring to, still less defining, a "Structure Plan", but a Scheme is usually made up of the Scheme text, Scheme map and such other documents as the Western Australian Planning Commission may require – Town Planning Regulations 1967, reg 8(1). Regulations provide for a Scheme to be in the form of the model Scheme text or otherwise as the Minister may require

(Page 9)

(reg 11(1) and appendix B to the Town Planning Regulations which contains the model Scheme text. The Regulations to this effect are authorised by s 8(1) of the Act and may be varied as the Minister approves (s 8(1)(a)).

10 However, the term "Structure Plan" is one which is familiar in modern town planning in this State and a stipulation requiring the provision of a Structure Plan is a common feature of the policies of various planning authorities (including the Commission), for certain areas in the State. The need for a Structure Plan for development within the Shire of Augusta-Margaret River and the policy which has led to this is apparent from the decision of the Full Court in Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 as forming part of the policy of the Commission in relation to development in the Leeuwin-Naturalist Ridge area. When speaking of provisions of the Shire of Augusta-Margaret River Town Planning Scheme No 18 in that case her Honour, Wheeler J, said at [31] and [32]:

"31 ... That Scheme contains cl 3.3.2 through to cl 3.3.3.2, which deal with structure plans. Those clauses are generally to the effect that subdivision or development within a designated zone will not be supported by Council until a structure plan has been prepared 'which accords with the parameters listed in cl 3.3.3 hereunder' and which contains detailed indications to do with roads, likely clearing, buffers and relevant residential planning codes. The 'parameters' are a mixture of the extremely general ('shall provide for a variety of residential, tourist and ancillary development') and the very specific ('up to a maximum 243 lots ... '), and require detailed supporting information including an environmental analysis, geotechnical analysis and so on.

32 There is no definition of 'structure plan' within the Policy. The only internal indications as to what it might mean appear to me to be somewhat contradictory. On the one hand, it is a document apparently prepared after 'comprehensive planning' has been undertaken, but on the other hand an acceptable alternative to it is apparently an 'outline development plan' (also not a defined term, but the word 'outline' does not suggest any great detail is required). Nor can one draw anything, I think, from the

(Page 10)

date of preparation of the Policy. It was prepared subsequent to both the gazettal of Town Planning Scheme No 18 and the approval of the 1993 Structure Plan by the Commission."

In coming to the terms of this Scheme it is relevant to note the following provisions relating to the preparation of a Structure Plan:

"3.3.1 General:

Land within the Development Zone shall be developed for residential and tourist purposes and other ancillary and related uses, such as limited local commercial centre, education facilities, community and recreation facilities and passive public open space.

3.3.2 Structure Plan:

Subdivision and/or development within the zone will not be supported by Council until such time as a structure plan has been prepared which accords with the parameters listed in clause 3.3.3 hereunder and that indicates:-

[sub-pars (a) to (e) relating to road widths, physical topographical and environmental characteristics, clearing, retained areas for buffer and passive recreation purposes and the relevant residential planning codes.]

3.3.3 Parameters for preparation of the structure plan:

The parameters to which a structure plan and subsequent subdivision and development must accord are listed below:-


3.3.3.1 Land use ...

3.3.3.2 Supporting information ...


...

3.3.5 Receipt of a Structure Plan

Upon receipt of a Structure Plan prepared in accordance with requirements of this Scheme, Council shall thereafter, follow the procedures outlined in Clause 7.2 of this Scheme with, notwithstanding Clause 7.2.3, an advertising period of 60 days, subsequent to which, the plan shall be forwarded to the State

(Page 11)

Planning Commission, together with any modifications made to the plan as a result of submissions, for the Commission's consideration and approval.

3.3.6 Adoption of an Outline Development Plan

Following the receipt of the approval of an Outline Development Plan by the State Planning Commission and providing Clause 3.4.2 of this Scheme [relating to ongoing management] has been satisfied, Council shall adopt the plan as a basis for the subdivision and development of the area."

Clause 7.2.2 relates to the procedures to be followed when advertising applications and which, for relevant purposes, are to be applied as if the lodgement of a draft structure plan were such an application.

11 As observed by Wheeler J in Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc (supra) at [30], neither the provisions of the Act nor the provisions of this Scheme go so far as to require that subdivision or other development will only be approved if it conforms in every detail with the relevant structure plan. Nevertheless, the provisions of cl 3.3.2 are significant in that they provide that "subdivision and/or development within the Zone will not be supported by Council until such time as a structure plan has been prepared ... ". However, that clause needs to be read in conjunction with those provisions which enable the land owner or other applicant to apply for subdivision or for development approval.

12 Any such application for approval of a proposed subdivision will need to be dealt with under the provisions of Pt III of the TPD Act and an application to develop a particular lot of land will need to be dealt with in accordance with Pt VI (Development Provisions) or Pt VII (Planning Consent) of this Scheme. Decisions made by the local authority or by the Commission in relation to those matters will be subject to review or appeal as otherwise provided for in the Act or under cl 8.5 of this Scheme. In some instances the decision, for example, to grant development will be the decision of the local authority whereas, in other instances, the grant of approval for subdivision will be by the Commission. No doubt any such application for subdivisional approval or development approval "will not be supported by Council" until a complying structure plan has been approved. That does not necessarily mean that no such application can or will be approved unless it conforms to an existing structure plan because, under the terms of the Act and the Scheme, any application for subdivision or development approval will need to be dealt with on its

(Page 12)

merits and the absence of a structure plan or non-compliance with an approved structure plan may not always be fatal to the success of any such application, although it is to be expected that it often would be. Nevertheless, the point remains that the success or failure of an application for subdivision or development approval will, in the end, depend upon the discretionary decision of the Commission or the local council as the case may be, according to the merits of the particular case, and subject to the right of an applicant to appeal to the Minister or to the TPAT.

13 In practical terms a structure plan will need to contain more detailed and particular criteria for land use and development of a particular area than is contained in the Town Planning Scheme itself. In some instances a particular structure plan may apply to only part of the land within a Scheme – as in this case to land within the Development Zone. Obviously, a proposed structure plan will need to be consistent with the particular Town Planning Scheme and with the Act, because there is nothing in the legislation which would give effect to a structure plan as if it were enacted by the TPD Act, notwithstanding that this Scheme itself provides for the structure plan to be approved by the Commission.

14 The role of the second respondent in considering and approving a structure plan under this Scheme is consistent with the Commission's powers to prepare statements of planning policy to facilitate the co-ordination of planning throughout the State by all local governments under s 5AA of the TPD Act and in relation to advice which the Commission may tender to the Minister when the latter is considering and approving any proposed Town Planning Scheme under s 7 of the TPD Act – see Western Australian Planning Commission Act 1985, s 18(1)(a). The consequence of approval of a structure plan as envisaged under this Scheme will be to supplement the Town Planning Scheme in relation to a development area with more detailed requirements, criteria and "parameters" with which any subdivision or development application for land within that area must "accord" before the council will "support" that application. The obligations requiring the advertisement of the proposed structure plan, and the forwarding of any modifications made to the plan as a result of submissions, together with the proposed structure plan to the Commission for approval, provide a procedure for public scrutiny and evaluation of the proposed structure plan. This is a procedure which, at least to some degree, is comparable to, but not identical with, the procedure to be followed when a Town Planning Scheme itself is being prepared or amended.

(Page 13)

15 The significance of this comparison, in the present case, is that the formulation and eventual approval, if that occurs, of a structure plan resembles the formulation, consideration and approval of a Town Planning Scheme. It is the formulation and approval of an instrument which is legislative in character in the sense that it establishes criteria or "parameters" which require consideration when an applicant is seeking approval for subdivision or development. As already mentioned, the contents of a structure plan do not have the same significance and effect as the provisions of the Town Planning Scheme itself but the content of the structure plan will include matters to which the approving authority must generally have regard when considering and determining any such application, subject always to the merits and particulars of the individual case.

16 Bearing in mind the large and diverse considerations which will affect the formulation of any Town Planning Scheme or structure plan and the possible need for conformity to state-wide or regional planning considerations, the content of such a structure plan, except where specifically statutorily prescribed, will significantly reflect matters of policy in contrast to content specifically prescribed or determined by any existing law. This is particularly so at the point where any proposed structure plan is to be considered by the Commission, but it is also the case where a structure plan is received by a local authority, advertised for public submissions and submissions are received and considered. That process, at the level of the local authority, will require recommendations to be made by the local authority, consistently with the Scheme, about the proposed use and subdivision of land within the Development Zone, which have not previously been the subject of determination. In other words, the recommendations of the local authority about the content of a proposed structure plan will be made in the absence of detailed pre-existing planning criteria upon which any eventual application for subdivisional approval, or development approval may depend. Such recommendations will, therefore, occur in a situation when there are no fully established criteria for the grant or refusal of subdivisional or development approval either absolutely or at the discretion of the Commission or the local authority. Recommendations in relation to a proposed structure plan will be recommendations relating to the establishment of criteria which, if the plan is ultimately approved, will form the factors or criteria by which applications for subdivision or development approval will in future be decided either absolutely or in the exercise of any discretion by the decision-maker.

(Page 14)

17 This feature of the process by which the first respondent receives a proposal for a structure plan, advertises it within the area, receives and considers public submissions before referring the proposed structure plan, together with its own recommendations, to the Commission for the latter to consider whether or not to approve the structure plan does not involve the Council making a decision upon the structure plan still less a discretionary decision. It is a process which is in marked contrast to a discretionary decision about compliance with matters of aesthetic quality for which a Town Planning Scheme makes provision, as was examined in City of South Perth v Fairway Heights [1981] WAR 51. It is not a decision on a matter of fact or degree as was the characterisation of the decision in Re Minister for Planning; Ex parte City of Canning (1998) 101 LGERA 284. In my opinion it is simply not a decision involving the determination of any rights or obligations of any party, nor the application of discretionary considerations to make a determination in accordance with existing law. Rather, it is part of a deliberative process involving the formulation of policy for eventual decision, by the Commission, for criteria which will need generally to be satisfied when granting subdivisional or development approval of land within the Development Zone at Gnarabup.

18 It can be accepted that the recommendations of the first respondent about proposed modifications to the Structure Plan, involve a role by the Council which is preliminary in nature and a condition precedent to a decision by the Commission to approve or reject a Structure Plan which may render such a recommendation, if containing an error of law or action beyond jurisdiction, susceptible to prerogative challenge – Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, but it is unnecessary to determine that issue on this occasion. In my opinion it is not a recommendation involving the determination or adjudication of any rights of the appellant, or of any other party, whether discretionary or otherwise.

19 In this case the first respondent submitted that there was no right of appeal for the appellant under cl 8.5 of the Scheme because none of the four requirements submitted to be contemplated by cl 8.5 existed. The first respondent's submissions were that for a right of appeal to exist under cl 8.5, the purported applicant must have made an application under the Scheme; that the application must be one made to the Council of the respondent; that the Council of the respondent must be the decision-maker; and, finally, that the decision must be in respect of the exercise of a discretionary power under the Scheme. The second respondent joined in making the same submissions.

(Page 15)

20 The appellant, however, in support of its submission that a right of appeal did exist, contended that the decision by the first respondent to recommend a modification to the proposed Structure Plan and forward it to the Commission was a "decision" which turned upon the Council's assessment of whether the proposed Structure Plan sufficiently conformed with and achieved the Scheme objectives and requirements to merit Council's support while acknowledging that it did not involve the application of fixed objective criteria. It may be possible to describe the function of the first respondent in processing the proposed Structure Plan in this fashion, but to do so does not lead to the conclusion that it is a discretionary decision in respect of which a right of appeal exists either under cl 8.5 or s 8A of the Act. The reason is that the Council is not involved in granting any consent, permission, approval or other authorisation which is within its discretion, nor is the process of evaluation of the suitability of the proposed Structure Plan anything but a further step in the formulation of planning policy supplementary to the Town Planning Scheme itself.

21 Accordingly, I am satisfied that the TPAT was correct in its decision that the action of the first respondent in making its recommendations was merely a step in the planning process which is not susceptible to appeal under cl 8.5 of the Scheme or otherwise. It follows that the appeal by the appellant in SJA 1042 of 2002 must be dismissed.

Originating Summons

22 Gnarabup Beach, by an originating summons dated 19 July 2002 as amended on 4 November 2002, sought declarations of right that:

"(a) Upon a proper construction of cl 3.3.3.1(b) of the Shire of Augusta-Margaret River Town Planning Scheme No 18 – Prevelly Park ('Town Planning Scheme No 18'), a structure plan shall show an ultimate development that provides, but need not be limited to, similar tourist opportunities to those that could have been approved under the Shire of Augusta-Margaret River Town Planning Scheme No 11 at the time that Town Planning Scheme No 18 was gazetted, unless otherwise considered appropriate in the light of social, environmental, topographical, servicing and visual impact considerations.

(b) Upon a proper construction of cl 3.3.5 of Town Planning Scheme No 18, where a structure plan is forwarded to the Western Australian Planning Commission for approval,

(Page 16)

the Western Australian Planning Commission is empowered to approve the plan subject to such conditions, if any, as it thinks fit, including conditions requiring changes to be made to the plan."

The Commission and the Shire of Augusta-Margaret River were, respectively, the first and second defendants named in the originating summons and both were heard by counsel in these proceedings.

23 Reference in these reasons has already been made to cl 3.3.3 and cl 3.3.5 of this Scheme but, as the originating summons raises different issues, it is convenient to set these out again in full despite the repetition which this involves. The provisions are:

"3.3.3 Parameters for preparation of the structure plan:-

The parameters to which a structure plan and subsequent subdivision and development must accord are listed below:-


3.3.3.1 Land use:-

(a) The Structure Plan shall provide for a variety of residential, tourist and ancillary development, with particular regard to providing for a range of economic groups. Tourist development proposals should have due regard to the guidelines in the Environmental Protection Authority and WA Tourism Commission;

(b) the Structure Plan shall show an ultimate development that provides similar tourist opportunities and no more than the number of residential lots existing in the Prevelly Park townsite as existing in its gazetted form at the time of the gazettal of this clause unless otherwise considered appropriate by Council in the light of social, environmental, topographical, servicing and visual impact considerations, up to a maximum of 243 lots inclusive of the

(Page 17)

R20 residential subdivision proposed northern end of Location 815

...

3.3.5 Receipt of a Structure Plan:

Upon receipt of a Structure Plan prepared in accordance with requirements of this Scheme, Council shall thereafter, follow the procedures outlined in Clause 7.2 of this Scheme with, notwithstanding Clause 7.2.3, an advertising period of 60 days, subsequent to which, the plan shall be forwarded to the State Planning Commission, together with any modifications made to the plan as a result of submissions, for the Commission's consideration and approval."

24 Gnarabup Beach, as plaintiff, claims to be entitled to declarations as sought on the basis that it is the proponent which submitted the Structure Plan to the Shire of Augusta-Margaret River which, as already related, has since referred the proposed Structure Plan to the Commission pursuant to cl 3.3.5 of the Scheme and where, so it is submitted, there is a controversy between the parties over the powers of the Commission when dealing with the proposed Structure Plan. As yet the Commission has not approved, conditionally or unconditionally, the proposed Structure Plan, nor has it rejected it. But, as I shall describe, differences have arisen between the parties over the scope of the consideration and nature of approval which the Commission might give to this particular Structure Plan.

25 As appears from the evidence and the submissions by the parties, the matters of contention concerning the proper construction of the Shire of Augusta-Margaret River Town Planning Scheme No 18 relate to cl 3.3.3.1(b) and cl 3.3.5 of the Scheme and are as follows:

"(a) Whether the reference in sub-clause 3.3.3.1(b) of the Scheme to a 'Structure Plan' that shall show an ultimate development that provides similar tourist opportunities ... existing in the Prevelly Park townsite ... means that the nature and character of development in the Development Zone must be limited to the general nature and character of tourist opportunities in the development existing or permitted at the designated time in the Prevelly Park townsite or whether the tourist opportunities may be of a more extensive or elaborate kind in the sense of providing for development which involves a higher or different use

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of the land than in the development then existing or permitted in Prevelly Park townsite, as Gnarabup Beach contends;

(b) whether, if otherwise considered appropriate by the Council of the Shire, in the light of social, environmental, topographical, servicing and visual impact considerations the Structure Plan may show an ultimate development providing tourist opportunities more extensive or more elaborate in character than then existing or permitted in the Prevelly Park townsite at the designated time, as submitted by Gnarabup Beach and by the Commission, or whether, as submitted by the Shire, the Scheme contains no power to enable the Structure Plan to provide for tourist opportunities other than those of a character similar to those existing in the Prevelly Park townsite at the designated date; and

(c) whether the power of the Commission to consider and approve a proposed Structure Plan forwarded to it for consideration under clause 3.3.5 of the Scheme is restricted to a power merely to approve or to refuse approval for the Scheme in the terms submitted to it for consideration, or whether the power of approval includes the power to approve a proposed Structure Plan with variations or modifications, or subject to stated conditions, and if so, whether that power extends to approval, with variations or modifications or with or without conditions, which produce a substantial change in the nature or character of the Structure Plan which had been forwarded for approval by the Commission."

26 These controversies have, to some degree at least, been produced by the absence in the Scheme itself of express provisions identifying the nature and purpose of a structure plan. Nor does the Scheme expressly identify the person or persons who may prepare and submit a proposed structure plan for consideration. However, because subdivision and/or development within the Development Zone will not be supported by Council until a structure plan has been prepared (cl 3.3.2) the implication plainly is that, in the absence of an approved structure plan, the incentive will be for any person or body who desires to obtain approval for a proposed plan of subdivision or approval for a proposed development to take the initiative and prepare and submit a proposed structure plan for

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consideration. As the preparation of a structure plan will be a time consuming, complicated and, no doubt, expensive task, it is unlikely that any person other than a would-be subdivider or an applicant for development approval would embark upon it, but the terms of the Scheme do not exclude the possibility that the preparation and submission for consideration of a proposed structure plan may be undertaken by some other person or body or, for that matter, by officers of the Shire itself. Nevertheless, as this case itself demonstrates, practical and economic considerations will generally lead to a land owner who is ultimately seeking approval for subdivision and/or development of land within a Development Zone, preparing the proposed structure plan and submit it to the Council for consideration under cl 3.3.5. In doing so, the land owner/subdivider/developer will naturally have a personal interest in achieving approval of the structure plan in the form and detail in which it has been prepared because these are likely to be the most conducive to that land owner's/subdivider's/developer's economic advantage.

27 At this point it can be seen that there is, at least, a latent expectation by Gnarabup Beach in submitting the proposed Structure Scheme for consideration and approval in the form submitted that its position has some similarities with the position of an applicant for subdivisional approval who submits a proposed plan of subdivision for approval under s 20 of the TPD Act. In a practical sense it can be said that a land owner who wishes to obtain approval for a subdivision of land in this Development Zone, at a time when there is no approved structure plan in existence, will need to secure the preparation and approval of a structure plan as a preliminary to obtaining approval for a proposed subdivision. But such a statement is not entirely correct because, as s 20(5) of the TPD Act provides, the discretion of the Commission in granting approval for a proposed plan of subdivision is not fettered by the provisions of a Town Planning Scheme, except to the extent necessary for compliance with an environmental condition relevant to the land under consideration. Furthermore, the fact that subdivision within this Development Zone will not be supported by the Council of the Shire of Augusta-Margaret River unless a structure plan has been approved, or unless a proposed subdivision is in accord with the terms of an approved structure plan, does not mean that the Commission must refuse a particular subdivision application or insist upon the proposed subdivision being in accordance with the terms of any approved structure plan. Nevertheless, in practice, the probability of such consequences must be high. But that does not mean that a would-be subdivider or developer submitting his structure plan for consideration has any "proprietorship" in the details of the

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Structure Plan as submitted, or that he has any right to approval of the particular structure plan or for it to be considered by the Council, and by the Commission, otherwise than in accordance with general or particular planning considerations and policies applying to the area.

28 Earlier in these reasons I have remarked that, under the terms of this Scheme, any structure plan is, of its nature, a form of supplementation to the Scheme itself, although not with the same statutory significance. There are several indications in the Scheme of the nature and purpose of a structure plan which, in turn, are of some relevance in setting the background against which the issues of construction in this case can be undertaken. There are the general objectives established by the Scheme which are to be taken into account by the Council when evaluating subdivision and development proposals. These are stated in cl 3.2.1, and specifically in relation to land within the Development Zone by cl 3.2.2, which are as follows:

"3.2.1 General Objectives:

(a) To ensure that subdivision and development proposals for land within the scheme area are compatible with adjoining and surrounding land uses, environmental and landscape attributes existing within the scheme area, the level of community infrastructure existing in the locality and the lifestyle attributes of the adjoining Prevelly Park townsite;

(b) to ensure that the landscape, environmental and topographical constraints identified in the guidelines for development in the scheme area as adopted by Council from time to time, are taken into consideration in the preparation and implementation of subdivision and development proposals for land within the Scheme area.


3.2.2 Objective for the Development Zone:

To provide for the subdivision and development of the land in accordance with structure plans prepared in accordance with the related Scheme provisions and objectives listed in clause 3.2.1 above."

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The content which must be included in any structure plan and the "parameters" for its preparation are set out in detail in cl 3.3.2 and cl 3.3.3 of the Scheme and involve a wide range of planning, design, environmental, engineering and other considerations. While, by reason of subs 20(5) of the Town Planning and Development Act, the determination by the Commission of any application for subdivision in respect of land within the development area may not be fettered by the terms of the structure plan, it is clear that the details of the structure plan and the planning, engineering, design and other considerations reflected by the terms of the structure plan will be considered on any application for subdivision and may well prove influential in determining the fate of the outcome of that application. Compliance with environmental conditions in the structure plan may be essential, however, because of s 20(5) of the TPD Act but that possibility does not need to be addressed in this case. That, however, does not affect the provisions of the Scheme which contemplate that the formulation and approval of a structure plan should involve a careful consideration of all the relevant planning, environmental, engineering and other factors already mentioned from many points of view.

29 The expectation that the structure plan will initially be prepared and submitted by a would-be subdivider or developer will ensure that the land owner's views and interests are recognised and considered; the obligation for the proposed plan to be advertised under cl 3.3.5 and cl 7.2.3 will ensure that the owners and occupiers of other land likely to be affected or within the Scheme area are canvassed and recorded. Similarly, the consideration given by the Council of the Shire to the proposed Scheme can be expected to ensure that the local authority itself brings any material factors to attention and, finally, the approval required from the Commission will ensure that general, regional or particular planning considerations are addressed and the compatibility of the proposed land use envisaged by the structure plan is evaluated from a state-wide perspective. The processes which these various obligations involve all demonstrate that the approval of a structure plan involves the formulation of planning policy, in its widest conception, at many levels and in a way which involves wide participation by land owners or occupiers, the local community and the planning authorities.

30 It is now possible to turn to the first issue of construction which arises on the originating summons issued by Gnarabup Beach. As already noted, this is whether the tourist opportunities provided by ultimate development in this Development Zone can only be similar to tourist opportunities existing in the Prevelly Park townsite or, as submitted for

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Gnarabup Beach, need not be limited to such tourist opportunities. In my view, the plain meaning of cl 3.3.3.1(b) of the Scheme in this regard is that the structure plan must show ultimate development within the Development Zone providing for similar tourist opportunities as existing in the Prevelly Park townsite at the designated date and not any form of tourist opportunities which, in nature, character or extent, are dissimilar to those existing at Prevelly Park at the relevant time. It will be a matter of judgment requiring assessment, as a matter of fact and degree, to determine whether any particular proposed development for tourist opportunities is or is not similar to that existing at Prevelly Park at the stated date but it will be for the authorities evaluating and approving the structure plan to make that judgment.

31 This conclusion follows directly from the language employed in cl 3.3.3.1(b) of the Scheme but, significantly, is also consistent with the general objective stated in cl 3.2.1(a) requiring compatibility of subdivision and development proposals for land within the Scheme area with the lifestyle attributes of the adjoining Prevelly Park townsite. Consequently, I am of the view that the declaration sought by Gnarabup Beach in this respect involves a departure from the terms of the Scheme and that the declaration which the Court should make should be in the following terms:

Upon the proper construction of cl 3.3.3.1(b) of the Shire of Augusta-Margaret River Town Planning Scheme No 18 – Prevelly Park, and the Scheme as a whole, a structure plan shall show an ultimate development that provides similar tourist opportunities to those existing in the Prevelly Park townsite as existing in its gazetted form at the time of the gazettal of subcl 3.3.3.1 of the Scheme and no tourist opportunities more extensive or elaborate in nature or character than then so existing in the Prevelly Park townsite in its gazetted form.

32 The second issue upon which a declaration is sought from the Court as to the proper construction of cl 3.3.3.1(b) of the Scheme is over whether or not the Council of the Shire of Augusta-Margaret River may, in the light of social, environmental, topographical, servicing and visual impact considerations, consider and allow tourist opportunities in the development area more extensive or elaborate in nature and character than existing in the Prevelly Park townsite at the specified date. All the parties accept that the terms of sub-cl 3.3.3.1(b) contain a power to approve a structure plan, if the Council of the Shire otherwise considers because of the designated criteria, which is more extensive in certain respects than

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the development at Prevelly Park townsite at the specified date. The issue dividing them is whether or not that power, in the circumstances specified, to depart from the limitations apparent from the prototype development at Prevelly Park is confined to an ability to approve an increase in the number of residential lots beyond the number existing in the Prevelly Park townsite (but up to an irreducible maximum of 243 lots) or whether it also extends to permitting, if the Council otherwise considers it is appropriate, a development of tourist opportunities more extensive in nature and character than those existing at Prevelly Park.

33 Gnarabup Beach cites, in support of its submission, a passage from the judgment of Roberts-Smith J in Re Shire of Augusta-Margaret River; Ex parte Gnarabup Beach Pty Ltd [2001] WASC 15, dealing with the same sub-clause of this Scheme in proceedings to determine whether or not the absolute maximum of 243 lots permitted meant residential lots or all or any lots including residential lots. Roberts-Smith J decided and declared that, in the context of sub-cl 3.3.3.1(b) of this Scheme the words "up to a maximum of 243 lots" was a reference to "the number of residential lots only". In his reasons for decision at [35] his Honour said:

" ... The phrase 'that provides similar tourist opportunities' is not a phrase of restriction or limitation and does not imply a constraint on the number of lots for tourism. ... "

Counsel for Gnarabup Beach submitted that, if that phrase is not one of restriction or limitation, then sub-cl 3.3.3.1(b) as a whole should be read and construed as including a power by the Council, if it considers it appropriate to do so, to approve a form of tourist opportunities going beyond those existing at Prevelly Park at the designated date. However, I am satisfied that the passage in the reasons for decision of Roberts-Smith J in Re Shire of Augusta-Margaret River; Ex parte Gnarabup Beach Pty Ltd (supra) at [35] does not apply to, and was not intended to apply to, the question of whether or not the phrase "that provides similar tourist opportunities" could be subject to variation or modification by a decision of the Council of the Shire in appropriate circumstances. When his Honour was addressing issues of "restriction" or "limitation" in that case he was doing so in a situation where the only issue before the court was whether or not the reference to 243 lots was confined to residential lots or to the aggregate number of lots, including lots for different uses, proposed in a structure plan. The notions of limitation or restriction thus employed should be read as being confined to meaning numerical restriction or limitation which was the point then in issue. It is to be noted that in that case the only submissions advanced to

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the court were on behalf of Gnarabup Beach and no issue arose there requiring an examination or decision by the court of the significance of the term "tourist opportunities" or its relationship to other parts of the clause.

34 Again, reference can be made to the general objectives of the Scheme as contained in cl 3.2.1(a) which include compatibility of development and subdivision proposals for land within the Scheme area with the level of community infrastructure existing in the locality and the lifestyle attributes of the adjoining Prevelly Park townsite. Accordingly, despite some awkwardness in the language employed in sub-cl 3.3.3.1(b) of the Scheme, I am satisfied that the meaning of the provision, read in the context of the Scheme as a whole, is that the structure plan is to show a development providing similar tourist opportunities to those existing in the Prevelly Park townsite at the designated date. It is not open to the Council of the Shire or to any other authority called upon to approve a structure plan under this Scheme, to provide for a development containing tourist opportunities more extensive or elaborate in character than existing in the Prevelly Park prototype. Of course this does not mean that there could never be a structure plan or use of land in the Development Zone of a more extensive or elaborate character than that so specified because there always remains the possibility that Town Planning Scheme No 18 could be replaced or amended by a new Town Planning Scheme which repealed or modified this restriction. For the moment, however, the position is that a structure plan under the existing Scheme, to accord with the parameters listed in cl 3.3.3, must only provide for similar tourist opportunities as existed in the Prevelly Park townsite at the specified date.

35 This conclusion also means that the number of residential lots prescribed as the first limit for the number of residential lots which may be shown in the structure plan is the number actually provided for in the gazetted form for Prevelly Park at the date of gazettal of cl 3.3.3.1 of this Scheme and not any larger number which, for any reason, might be gazetted for Prevelly Park at some other date.

36 These are perhaps the most contentious of the issues between the parties in the present proceedings and much effort by counsel was devoted to resort to the history, and origin of debates within the Council, including drafting changes, which led to the adoption of cl 3.3.3.1 in its final form as extrinsic materials which might aid in ascertaining the correct construction of that provision in reliance on s 19 of the Interpretation Act 1984. Similar attempts to resort to extrinsic materials to assist in the interpretation of cl 3.3.3.1(b) of this Scheme for other purposes were

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made in Re Shire of Augusta-Margaret River; Ex parte Gnarabup Beach Pty Ltd (supra). However, in that case (at [38]) Roberts-Smith J observed that reference to extrinsic materials may be made where the relevant provision was ambiguous, but his Honour was satisfied that the clause, at least in relation to the controversy before him, was not ambiguous and therefore resort to extrinsic materials was unnecessary and unjustified. Nevertheless, his Honour went on to undertake a review of the historical events leading to the adoption of cl 3.3.3.1 in this Scheme and expressed the view, necessarily an obiter dictum, that the background pointed to the same conclusion which he had already reached, namely, that the reference to a maximum of 243 lots was confined to 243 residential lots.

37 Similarly, a review of the chronology and the extrinsic materials relied on by the parties in this case, though I am satisfied that there is no occasion to warrant a close examination of them, leads me to the conclusion that the issues occupying the various parties and authorities at the time the Scheme was in formulation were issues relating to the numerical quantity of the lots which might be produced by development within this area and were chiefly concerned with various means of finding an acceptable drafting formula for implementing that numerical limitation, having regard to different views about the number of lots which should be permitted, and whether this should be expressed in absolute terms or by reference to a formula associated with lot yield or by some other approach. Examination of the history set out by Roberts-Smith J, and of the extrinsic materials relied upon in this case, suggests that there was never any significant controversy between those charged with preparing and approving this Scheme over whether the tourist opportunities and general subdivision and development proposals should be compatible with the Prevelly Park prototype. Again, having regard to the general objectives outlined in cl 3.2 of the Scheme, this construction of sub-cl 3.3.3.1(b) is consistent with the Scheme read in its entirety.

38 There is another objection raised to the use of extrinsic materials in the course of construction of cl 3.3.3.1(b) in particular and of this Scheme as a whole. It is that several sources were responsible for the final form of the Scheme, including the local authority, the Commission and the Minister. Early formulations, controversies or drafting changes in parts of the proposed Scheme before a version of the Scheme was submitted for approval to the Minister may therefore have only the most tenuous significance in aiding the proper construction of the text Scheme as eventually approved. While this submission seems to be well justified, in the present case I am satisfied that the true construction of cl 3.3.3.1(b)

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can be derived from the terms of the Scheme itself read as a whole and this is, after all, the primary and preferred approach to construction – Catlow v Accident Compensation Commission (1989) 167 CLR 543 per Brennan and Gaudron JJ at 549 – 550.

39 It is, perhaps, unnecessary to descend to particular examples or analogies, but the same point can be approached by considering an example. If one were to take a type of tourist opportunity or development which is plainly beyond the scope of tourist opportunities existing at Prevelly Park at the relevant time, such as a tourist hotel, canal and marina development, such as exists in some highly developed modern beach resorts elsewhere in Australia, and then pose the question whether or not this Town Planning Scheme envisaged that, if it considered it appropriate to do so, the Council of the Shire of Augusta-Margaret River might approve a structure plan providing for such land development at Gnarabup, the answer is plainly in the negative.

40 The conclusion which I have reached is that the general character and nature of the development to be permitted under this Scheme is fixed by comparison with that at Prevelly Park at the designated date but that there is reserved to the Council the power to increase the number of residential lots in any structure plan for the Development Zone to a maximum of 243, if the Council were satisfied that this was appropriate in the light of social, environmental, topographical, servicing and visual impact considerations.

41 Consequently, on this issue I consider that the declaration as to the proper construction of cl 3.3.3.1(b) should be in the following terms:

Upon the proper construction of cl 3.3.3.1(b) the Shire of Augusta-Margaret River Town Planning Scheme No 18 - Prevelly Park, and the Scheme as a whole, the Structure Plan shall show an ultimate development that provides similar tourist opportunities to those existing in the Prevelly Park townsite in its gazetted form at the time of gazettal of that sub-clause and that neither the Council of the Shire nor the Commission is empowered, whether in the light of social, environmental, topographical, servicing or visual impact considerations or otherwise, to dispense with or to modify this requirement.

42 Again, it will be a question, as a matter of fact and degree, for the authorities required to consider and approve a draft structure plan to determine whether or not the development proposed is similar to the

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tourist opportunities existing in the Prevelly Park townsite prototype, bearing in mind that the requirement of similarity does not mean that the tourist opportunities proposed must be identical or exactly congruent with the prototype.

43 The final issue of construction is whether, under cl 3.3.5 of the Scheme the Commission is empowered to approve a proposed structure plan with or without modifications or subject to conditions and, if so, whether or not approval may be granted to a plan, whether as a result of variations, modifications or conditions proposed, substantially different to the proposed plan as submitted to the Commission.

44 Clause 3.3.5 makes no reference to the consideration and approval of the proposed structure plan by the Western Australian Planning Commission as being susceptible to conditions or to modifications or variations which might be made by the Commission itself. However, Gnarabup Beach submitted that, by reason of s 50(2)(b) of the Interpretation Act (1984), the Commission had the power to grant approval subject to the imposition of reasonable conditions which could include variations or modifications to the Scheme as originally proposed.

45 Gnarabup Beach further relied on a passage in the judgment of Wheeler J in Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc (supra) at [21] dealing with the power of the Commission to approve, even with extensive modifications, a proposed plan of subdivision submitted to it for approval. The passage in her Honour's judgment is as follows:

"21 It is my view that as a matter of statutory construction, and having regard to the apparent purpose of the relevant Part of the Town Planning and Development Act, there is no reason to regard the Commission's powers as limited only to the approval or rejection of the precise plan which is placed before it. I would doubt whether there is anything which should be seen as preventing the Commission from requiring or approving alterations to a plan submitted to it even if the result is approval of a plan which is radically and substantially different from that originally submitted (subject to a possible requirement to engage in further consultations pursuant to s 24 if the plan is in substance and reality a different one). However, it is not necessary finally to determine this question, since it appears to me that the plan in fact approved by the

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Commission was, when regard is had to the plan submitted and to the plan approved, not in any event substantially different. ... "

These observations were directed to a process which is different to that under examination in the present case. A proposed plan of subdivision submitted to the Commission for approval will not necessarily have involved prior disclosure to other Government departments or agencies, or the same degree of advertisement and local public scrutiny as a proposed structure plan under this Scheme will receive. Furthermore, the refusal of approval or the grant of subdivisional approval upon conditions unacceptable to the applicant will result in a right of appeal by the applicant to the Minister or to the Town Planning Appeals Tribunal – s 26, s 39 and s 44 of the TPD Act. In addition, a grant of conditional approval to an application for subdivision may not be acted upon by the applicant and may eventually lapse without creating any obligations which must be observed by the applicant or by third parties. By contrast, the approval of a structure plan, with or without conditions, by the Commission, will be followed with adoption of the plan by the Council of the Shire (cl 3.3.6) which will result in it thereafter having the effect accorded to it by the Scheme. Nor is there any right of appeal by a person from a refusal to approve, or an approval with conditions, by the Commission of a proposed structure plan. For these reasons, the considerations which apply to the power of the Commission to approve a structure plan with or without conditions or with variations or modifications are materially different to those applying to the power of the Commission to approve an application for subdivision. Consequently, the passage in the judgment of Wheeler J relied upon by Gnarabup Beach does not, in my view, apply in the present case.

46 Recalling that the functions of the Commission under s 18(1) of the Western Australian Planning Commission Act (1985) include the function of advising the Minister upon the co-ordination and promotion of urban, rural and regional land use planning and land development in this State and Town Planning Schemes and amendments to those Schemes in any part of the State and, where a Regional Planning Scheme applies, to keep under review the strategic planning for that part of the State, it is obvious that the function of the Commission, in deciding whether or not to approve a proposed structure plan, will involve a consideration of, and potentially an exercise of, these far reaching roles of the Commission. Prominent among the objectives of the Commission when considering a structure plan submitted for its approval under this Scheme will be the need to ensure compatibility with general or regional planning schemes or

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policies applying in the area or region, including in areas beyond the limits of the particular local government authority or the particular Town Planning Scheme. The exercise of these functions by the Commission may very well lead it to making variations or modifications to the proposed structure plan or conditions upon its approval.

47 Therefore, there is no reason to conclude that the operation of s 50(2)(b) of the Interpretation Act is excluded by the provisions of the TPD Act or by the Scheme – Interpretation Act, s 3(1). It follows that, when considering a proposed structure plan under this Scheme which has been forwarded to it by the Shire for approval, the Commission has power to impose reasonable conditions, subject to which its approval of the proposed Scheme may be granted, including conditions requiring certain modifications or variations to the proposed structure plan. Nevertheless, this power of imposing conditions is not unlimited. First, the conditions must be reasonable (s 50(2)(b)). Second, having regard to the fact that by the time the proposed structure plan reaches the Commission for approval it will have already been considered by the Shire, been advertised as required and thereby possibly be subject to submissions resulting in desired modifications, any conditions, further modifications or variations which may be imposed by the Commission should not be of a nature or degree which would effect any subversion of the prior consultative process which, by then, will have been undertaken. This limitation has been expressed in varying ways in cases which have dealt with analogous situations. In Hancock Development Corporation Pty Ltd v City of Tea Tree Gulley (1986) 42 SASR 584 O'Loughlin J, with whom Zelling and Cox JJ agreed, said at 591:

"Obviously there could be a question whether a proposed condition required such a radical change in the applicant's original proposal that it could not be said that it was the original proposal that was being approved. Another way of expressing it is to say that amendments to proposals can be made ... as long as the purported amendments were not such as to make it a 'substantially different proposal from that which had been submitted to the Council and of which public notice had been given'. "

Observations to similar effect are to be found in the judgment of Jacobs J in The Queen v City of Salisbury (1986) 42 SASR 557 and 563. A more comprehensive examination of whether proposed changes to or conditions upon a plan submitted for approval, by some ultimate statutory authority would render ineffective the evaluation, public discussion or objection

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processes for the Scheme's earlier consideration required by statute, is to be found in City of Marion v Becker (1973) 6 SASR 13, per Bray CJ at 44 – 45, where the learned Chief Justice agreed that an authority would not have the power to approve a plan of subdivision which was fundamentally different in character from that originally submitted. Also in that case Hogarth J, at 58, said:

" ... I think that the Act and Regulations when read together must be understood as providing a code which contemplates that the proposed plan as originally submitted may be subject to some variation in the course of the proceedings and consideration both by the Director, the Council and where there is an appeal, by the Planning Appeal Board. The question whether a plan in its final form is so different from the plan as originally submitted as to lose its identity and become a new plan seems to me to be one of degree; and I think that this Court should pay great heed to the decision of the expert tribunal which has already looked at the plans – the Planning Appeal Board."

Although addressing different legislation, and dealing with a different process, these observations appear to me, with respect, to be applicable in the present situation. Here, a proposed structure plan, as received and considered by the Shire of Augusta-Margaret River, advertised and subject to public submissions, and then forwarded to the Commission for approval may, at each stage of the process, be subject to variations or modifications, perhaps even of an extensive kind. It may at the end of that process be validly approved by the Commission and by the Council subject to some or all of those variations, modifications or conditions, so long as the alterations, modifications or conditions do not so substantially change the nature and character of the structure plan and, in effect, make it an entirely new plan fundamentally different in character from that which was subjected to the process of consideration, evaluation and public comment for which the statute provides.

48 Consequently, I conclude that on the issues which have arisen in this case, the declaration which the Court should make in respect of the proper construction of cl 3.3.5 of this Scheme should be in the following terms:

Upon a proper construction of cl 3.3.5 of the Shire of Augusta-Margaret River Town Planning Scheme No 18 – Prevelly Park, and the Scheme as a whole, where a structure plan is forwarded to Western Australian Planning Commission, together with any modifications made to the plan as a result of

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submissions, for the Commission's consideration and approval, the Commission may refuse approval, grant approval or grant approval subject to such reasonable conditions, including conditions requiring variations or modifications to the terms of the structure plan which the Commission may consider to be necessary so long as such conditions, modifications or variations do not make it a substantially different proposal from that which had been submitted to the Council and of which public notice had been given.

49 Accordingly, in these proceedings I consider that the orders and declarations which the court should make should be as follows:

In the appeal SJA 1042 of 2002:

That the appeal by Gnarabup Beach Pty Ltd from the decision of the Town Planning Appeals Tribunal of 28 February 2002 be dismissed.

In originating summons No CIV 2022 of 2002 that the Court declares:

(a) Upon the proper construction of cl 3.3.3.1(b) of the Shire of Augusta-Margaret River Town Planning Scheme No 18 – Prevelly Park, and the Scheme as a whole, a structure plan shall show an ultimate development that provides similar tourist opportunities to those existing in the Prevelly Park townsite as existing in its gazetted form at the time of the gazettal of subcl 3.3.3.1 of the Scheme and no tourist opportunities more extensive or elaborate in nature or character than then so existing in the Prevelly Park townsite in its gazetted form.


(b) Upon the proper construction of cl 3.3.3.1(b) the Shire of Augusta-Margaret River Town Planning Scheme No 18 Prevelly Park, and the Scheme as a whole, the Structure Plan shall show an ultimate development that provides similar tourist opportunities to those existing in the Prevelly Park townsite in its gazetted form at the time of gazettal of that sub-clause and that neither the Council of the Shire nor the Commission is empowered, whether in the light of social, environmental, topographical, servicing or visual impact considerations or otherwise, to dispense with or to modify this requirement.

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(c) Upon a proper construction of cl 3.3.5 of the Shire of Augusta-Margaret River Town Planning Scheme No 18 – Prevelly Park, and the Scheme as a whole, where a structure plan is forwarded to the Western Australia Planning Commission, together with any modifications made to the plan as a result of submissions, for the Commission's consideration and approval, the Commission may refuse approval, grant approval or grant approval subject to such reasonable conditions, including conditions requiring variations or modifications to the terms of the structure plan, which the Commission may consider to be necessary so long as such conditions, modifications or variations do not make it a substantially different proposal from that which had been submitted to the Council and of which public notice had been given.