GNECH BUILDING CO and TOWN OF CLAREMONT
[2018] WASAT 77
•14 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION: GNECH BUILDING CO and TOWN OF CLAREMONT [2018] WASAT 77
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
MR P DE VILLIERS (MEMBER)
HEARD: 1 MAY 2018 AND 21 JUNE 2018
DELIVERED : 14 AUGUST 2018
FILE NO/S: CC 2639 of 2017
BETWEEN: GNECH BUILDING CO
Applicant
AND
TOWN OF CLAREMONT
Respondent
Catchwords:
Building and construction - Building permit application - Building work comprising refurbishment of existing twostorey building, construction of third storey comprising office and two illuminated LED signs attached to third storey - Site partly reserved for Primary Regional Roads and partly zoned 'Urban' under Metropolitan Region Scheme and not reserved or zoned under Town of Claremont Local Planning Scheme No. 3 - Whether development approval in relation to building work required under Town of Claremont Local Planning Scheme No. 3 - Whether development approval in relation to building work has been granted under Town of Claremont Local Planning Scheme No. 3 - Whether granting building permit would be inconsistent with respondent's function under Town of Claremont Local Law Relating to Signs
Legislation:
Building Act 2011 (WA), s 14(1), s 20(1)(n), s 20(2), s 22(2), s 22(2)(a), s 119(a)
Building Regulations 2012 (WA), reg 18(2), reg 18(2)(b)
Interpretation Act 1984 (WA), s 5 ('written law', 'subsidiary legislation')
Local Government Act 1995 (WA), s 3.5(1), s 3.7
Main Roads Act 1930 (WA), s 16(1b), s 16(1c)
Metropolitan Region Scheme, cl 5, cl 10, cl 13, cl 24, cl 28, cl 29, cl 30(1), Form 1
Planning and Development Act 2005 (WA), s 4 ('development'), s 16, s 56(2), s 56(3), s 162, s 162(1)(b), s 171A(2), s 171A(2)(ba), s 218(c), s 223, s 257B(2), s 257B(3)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 6(b), reg 7, reg 7(2), reg 8, reg 8(1), reg 11(1), reg 12(2), reg 12(7), reg 18(2), Sch 3 Form 1
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 78, Sch 1 (model provisions), cl 18(4), Sch 2 (deemed provisions), cl 1 ('Scheme area'), cl 60, cl 60(b), cl 61, cl 61(1)(a), cl 61(1)(j), cl 61(2)(f), cl 68(2)(b)
State Administrative Tribunal Act 2004 (WA), s 31(1)
Town of Claremont Local Planning Scheme No. 3, cl 2, cl 5, cl 14(1), cl 14(5), cl 25, cl 25(1), cl 25(2), cl 25(2)(h), cl 40(7), cl 83(1), cl 83(2), App I Form 1A
Town of Cottesloe Town Planning Scheme No. 2, cl 7.1.1
Town Planning Regulations 1967 (WA), App B (Model Scheme Text), cl 4.4.2
Result:
Application for review dismissed
Building permit refused
Summary of Tribunal's decision:
Gnech Building Co sought review by the Tribunal, under s119(a) of the Building Act 2011 (WA) (Building Act), of the decision of the Town of Claremont to refuse to grant a building permit to do building work at No. 58 Bay View Terrace (corner Stirling Highway), Claremont, comprising refurbishment of an existing two-storey building, construction of a new third storey containing office space and amenities, a new lobby and new internal staircase, and installation of two illuminated LED signs attached to the new third storey.
Prior to 31 January 2017, the whole of the site was reserved for Primary Regional Roads under the Metropolitan Region Scheme (MRS) and consequently, whereas development approval in relation to the building work was required under the MRS, development approval in relation to the building work was not required under the Town of Claremont Local Planning Scheme No. 3 (LPS 3), which applies to the whole of the district of the Town. However, on 31 January 2017, the MRS reservation was reduced and a substantial portion of the site was no longer reserved under the MRS, but rather was zoned 'Urban' under the MRS. The site is neither reserved nor zoned under LPS 3.
Under s 20(2) of the Building Act, a building permit cannot be granted for the building work unless, relevantly, each development approval required in relation to the building work has been granted. On 2 June 2017, the Metro West Joint Development Assessment Panel (JDAP) granted development approval in relation to the building work under the MRS.
There is a dispute between the parties as to:
•whether development approval in relation to the building work is also required under LPS 3 (as the Town contends and Gnech disputes); and, if so
•whether, on 2 June 2017, the JDAP also granted development approval in relation to the building work under LPS 3 (as Gnech contends, in the alternative, and the Town disputes).
Under s 22(2) of the Building Act, a building permit cannot be granted for the building work if to do so would be inconsistent with a function that the permit authority has under any other written law.
There is a dispute between the parties as to whether it would be inconsistent with the Town's functions under the Town of Claremont Local Law Relating to Signs (Signs Local Law) to grant a building permit for the building work (as the Town contends and Gnech disputes).
The Tribunal determined that the application for a building permit must be refused, because development approval in relation to the building work is required under LPS 3, but has not been obtained. The application for review was therefore dismissed.
For completeness, the Tribunal also determined whether it would be inconsistent with any function of the Town under the Signs Local Law to grant a building permit. The Tribunal determined that it would not be inconsistent with the Town's functions under the Signs Local Law to grant a building permit, because the Town's functions to enforce and determine applications for sign licences under the Signs Local Law would remain and be unaffected by granting a building permit, and because the Signs Local Law is relevantly inconsistent with LPS 3 and is, therefore, 'inoperative to the extent that it is inconsistent', under s 3.7 of the Local Government Act 1995 (WA).
Category: B
Representation:
Counsel:
| Applicant | : | Mr P McQueen and Mr B Foley |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98
Marshall and Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274; (2002) 124 LGERA 118
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Wellard Capital Pty Ltd and Town of Cottesloe [2009] WASAT 160; (2009) 65 SR (WA) 41
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Gnech Building Co (Gnech) seeks review by the Tribunal, under s 119(a) of the Building Act 2011 (WA) (Building Act), of the decision of the Town of Claremont (Town or Council) to refuse to grant a building permit to do building work at No. 58 Bay View Terrace, Claremont (Lot 501 on Deposited Plan 412274) (site).[1]The site is located at the northeastern corner of the intersection of Stirling Highway and Bay View Terrace within the district of the Town.
[1] The site was formerly known as Nos. 58-62 (Lots 1, 2 and 21) Bay View Terrace, Claremont. The lots formerly comprising the site were amalgamated in accordance with condition 4 of the development approval granted by the Metro West Joint Development Assessment Panel on 2 June 2017.
The site comprises a two-storey building in the Federation Free Classical style built in 1911 to the specifications of the National Bank. When constructed, the building comprised banking chambers and offices on the ground floor and manager's quarters above, with a balcony to the Stirling Highway frontage. The building was renovated by the National Bank in 1929. The National Bank occupied the building for 69 years, from 1911 to 1980. The building was then extensively remodelled and has been used for retail and commercial purposes since that time. The building is listed as an individual heritage item on the Town of Claremont Municipal Heritage Inventory and is also listed as part of the Bay View Terrace Commercial Heritage Precinct.
By way of a certified application under s 14(1) of the Building Act, Gnech applied to the Town for a building permit to do building work at the site. Development approval in relation to the proposed building work was granted by the Metro West Joint Development Assessment Panel (JDAP) on 2 June 2017. The development approved by the JDAP involves:
•refurbishment of the existing two-storey building, including, internally, the lobby and staircase, and externally, removal of all non-original elements, re-painting to replace the existing yellow colour scheme with grey, and removal of the original decorative orbs;
•construction of a new third storey, comprising 152m2 of office space and amenities, a new lobby and new internal staircase; and
•installation of two illuminated LED signs attached to the new third storey (signs) (development).
One of the signs is to wrap around the south-western corner of the development at the intersection of Stirling Highway and Bay View Terrace (south-western sign) and the other sign is to be located on the eastern facade of the development (eastern sign). The active area of the south-western sign is 9.144 metres wide and 2.926 metres high. The active area of the eastern sign is 5.486 metres wide and 4.389 metres high.
Section 20(2) of the Building Act states as follows:
A permit authority to which an application is made must not grant the building permit unless it is satisfied as to each of the matters mentioned in subsection (1)(a) to (s).
One of the matters as to which a permit authority must be satisfied under s 20(2) of the Building Act in order to be able to grant a building permit is stated in s 20(1)(n) of the Building Act as follows:
[T]hat the applicant has obtained in relation to the building work each authority under a written law that is prescribed for the purposes of this paragraph[.]
Regulation 18(2) of the Building Regulations 2012 (WA) (Building Regs) states, in part, as follows:
For the purposes of section 20(1)(n) [of the Building Act], the following authorities under written laws are prescribed
…
(b)if the building work is development as defined in the Planning and Development Act 2005 section 4, each approval required under that Act in relation to the work[.]
…
The term 'development' is defined in s 4 of the Planning and Development Act 2005 (WA) (PD Act) as follows:
development means the development or use of any land, including
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building[.]
It is common ground between the parties and plainly the case that the building work for which Gnech seeks a building permit is 'development' as defined in s 4 of the PD Act, because it involves 'construction, alteration of [and] addition to any building or structure on the land'.
Section 162 of the PD Act states as follows:
(1)Subject to this Act, where a planning scheme or interim development order provides that development referred to in the planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies unless
(a)the approval has been obtained and is in force under the planning scheme or interim development order; and
(b)the development is carried out in accordance with the conditions subject to which the approval was granted.
(2)Nothing in this section limits or otherwise affects a right or entitlement under any other written law.
As indicated below, prior to 31 January 2017, the whole of the site was reserved under the Metropolitan Region Scheme (MRS) for Primary Regional Roads and, from that date, the site has been partly reserved and partly zoned 'Urban' under the MRS. Clauses 13 and 24 of the MRS state as follows:
13.Except as provided in Division 2 of this Part no person shall commence or 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 Commission to do so.
24.(1) Subject to sub-clause (2) of this clause approval of the responsible authority under this scheme is required for the development of land within areas zoned under this Part.
(2)Approval under this Part is not required for the development of land if:
a)that land is not subject of a notice under Clause 32 of this Scheme or declaration under section 112 of the Planning and Development Act 2005; and
b)that development consists of:
(i)the erection on a lot of a single dwelling house which will be the only building on the lot, no part of which lot is within the Swan development control area or abuts any part of the Swan development control area; or
(ii)the carrying out of any works on, in, over or under a street or road by a public authority acting pursuant to the provisions of any Act.
Approval under this Part does not exempt the person to whom the approval is granted from the requirement, if any, to obtain permission or approval for development on the land under any other law.
It is common ground between the parties and plainly the case that:
•development approval in relation to the proposed building work is required under the MRS in consequence of s 162 of the PD Act and cl 13 and cl 24 of the MRS; and, therefore,
•s 20(1)(n) of the Building Act and reg 18(2)(b) of the Building Regs require the permit authority in this case to be satisfied that development approval in relation to the proposed building work has been granted under the MRS; and
•the development approval granted by the JDAP on 2 June 2017 constitutes development approval in relation to the proposed building work under the MRS.
However, there is a dispute between the parties as to:
•whether development approval in relation to the proposed building work is also required under the Town of Claremont Local Planning Scheme No. 3 (LPS 3) in consequence of s 162 of the PD Act and provisions of LPS 3 and, therefore, whether s 20(1)(n) of the Building Act and reg 18(2)(b) of the Building Regs require the permit authority in this case to be satisfied that development approval in relation to the proposed building work has been granted under LPS 3 (as the Town contends and Gnech disputes); and, if so
•whether, on 2 June 2017, the JDAP also granted development approval in relation to the building work under LPS 3 (as Gnech contends, in the alternative, and the Town disputes).
These are the first two issues for determination in this proceeding.
Section 22(2) of the Building Act states, in part, as follows:
A permit authority to which an application is made must not grant a building permit … if to do so would be inconsistent with
(a)a function that the permit authority has under any other written law[.]
…
The term 'written law' is defined in s 5 of the Interpretation Act 1984 (WA) (Interpretation Act) as follows:
written law means all Acts for the time being in force and all subsidiary legislation for the time being in force[.]
The term 'subsidiary legislation' is defined in s 5 of the Interpretation Act as follows:
subsidiary legislation means any proclamation, regulation, rule, local law, by law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect[.]
Section 3.5(1) of the Local Government Act 1995 (WA) (LG Act) states as follows:
A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.
The Town of Claremont Local Law Relating to Signs (Signs Local Law) is a 'local law' made by the Council under s 3.5(1) of the LG Act and is, therefore, 'subsidiary legislation' and, hence, a 'written law', under s 5 of the Interpretation Act, for the purposes of s 22(2)(a) of the Building Act.
The third issue for determination in this proceeding is whether it 'would be inconsistent with … a function that the [Town] has under [the Signs Local Law]' to grant a building permit for the proposed building work (as the Town contends and Gnech disputes).
We will address each of the three issues for determination in turn, after we make findings of fact in relation to this matter.
Background facts
The background facts are generally not in dispute between the parties. We make the following findings of fact.
On 24 June 2016, the planning consultant for the owner of the site lodged a development application with the Town for approval of the carrying out of the development on the site.
In this proceeding, both parties asserted that the development application made on 24 June 2016 was under the MRS.
However, the development application was made on a 'Form 1A', which is the form prescribed under cl 83(1) of LPS 3, in App I of LPS 3, for the purpose of making a development application for approval under LPS 3. The development application was not made on a 'Form 1', which is the form prescribed under cl 28 of the MRS for the purpose of making a development application for approval under the MRS.
At the same time, the planning consultant for the owner of the site lodged a 'DAP Form 1' with the Town, which is the form prescribed under reg 7(2) of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regs), in Sch 3 of the DAP Regs, for the purpose of an applicant making a development application of a kind prescribed under reg 6 of the DAP Regs to elect to have the application determined by a Development Assessment Panel (DAP), and not by the local government of the district or the Western Australian Planning Commission (Commission). Regulation 6(b) of the DAP Regs, made under s 171A(2)(ba) of the PD Act, enables an applicant for development approval of 'development in a district outside of the district of the City of Perth that has an estimated cost of $2 million or more and less than $10 million' to elect that the development application is to be determined by a DAP, and not by the local government of the district or the Commission. This is referred to as an 'optional DAP application'.
The DAP Form 1 states that the '[e]stimated cost of development (GST Inc)' is '$2,200,000.00'. Because the development has an estimated cost of $2.2 million, the applicant for development approval had a right to elect, under reg 7 of the DAP Regs, to have the development application determined by a DAP, and not by the Town or Commission, as an optional DAP application. Regulation 8(1) of the DAP Regs states as follows:
Despite any other provision of the Act or a planning instrument, any DAP application for approval of development within a district for which a DAP is established
(a)must be determined by the DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and
(b)cannot be determined by the local government for the district or the Commission.
As indicated earlier, on 24 June 2016, the planning consultant for the owner of the site lodged the development application in the form prescribed for the purpose of a development application under LPS 3 (Form 1A), not in the form prescribed for the purpose of a development application under the MRS (Form 1). Furthermore, on the DAP Form 1, the planning consultant for the owner of the site wrote 'Town Planning Scheme No. 3' in the place where the applicant was required to state 'Name of planning scheme(s) that applies to the land prescribed below'. The planning consultant did not write 'Metropolitan Region Scheme' on the DAP Form 1.
On the basis of the development application form selected and the indication as to the name of the planning scheme that applies to the site on the DAP Form 1, we find that, on 24 June 2016, the application for development approval lodged with the Town purported to be for development approval under LPS 3, not for development approval under the MRS. However, at that time (and until MRS Major Amendment No. 2010/41 became effective on 31 January 2017 see [42]-[43] below), the whole of the site was reserved under the MRS for Primary Regional Roads and, consequently, whereas development approval was required under the MRS for the carrying out of the development, no development approval was required under LPS 3 for the carrying out of the development at that time.
Contrary to Gnech's submission, the Form 1A does not 'apply equally to an application under both the LPS 3 and the MRS'. Rather, the converse is the case. As stated in cl 83(2) of LPS 3, 'an application for … approval in the Form No. 1 prescribed by the Metropolitan Region Scheme … shall be deemed to be an application under this Scheme for planning approval'. While a Form 1 under the MRS can be used as an application for development approval under both the MRS and LPS 3, a Form 1A under LPS 3 can only be used as an application for development approval under LPS 3 and not as an application for development approval under the MRS.
Under reg 11(1) of the DAP Regs, a local government that receives a DAP application (including an optional DAP application) must give a copy of the DAP application and other information to the administrative officer of the DAP that will determine the application within seven days after the date on which the DAP application is received. In this case, the Town forwarded the Form 1A and the DAP Form 1 to the DAP for determination, purportedly in accordance with reg 11(1) of the DAP Regs, apparently without realising that an application for development approval under the MRS (which was the only development approval required at the time) had not, in fact, been made.
The DAP secretariat recognised the error and required the lodgement of an application for development approval in terms of Form 1 under the MRS.
On 1 July 2016, the planning consultant for the owner of the site lodged a Form 1 development application for approval of the development under the MRS with the DAP secretariat. Although the development application under the MRS was lodged directly with the JDAP, rather than with the local government, the Town does not contest the validity of the development application under the MRS.
Clause 5 of the MRS states as follows:
The Authority responsible for the carrying out of this Scheme is the Western Australian Planning Commission but in relation to any particular part of the Scheme the responsible authority shall be such other authority as the Authority delegates to be the responsible authority under section 16 of the Planning and Development Act 2005.
Clause 5 of LPS 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.
Regulation 12(2) of the DAP Regs states as follows:
A responsible authority to which a DAP application is made must give the presiding member of the DAP that will determine the application a report on the application in a form approved by the Director General.
Although, under cl 5 of the MRS and cl 5 of LPS 3 (in relation to land reserved under the MRS), the Commission is the 'responsible authority' in relation to the development application for approval of the development under the MRS, at the time when the development application was made, the Town held a delegation from the Commission under s 16 of the PD Act to act as the responsible authority in relation to the development application under the MRS. Under the delegation and reg 12(2) of the DAP Regs, the Town was required to give a responsible authority report (RAR) to the presiding member of the JDAP. However, the Town did not do so. Although, under reg 12(7) of the DAP Regs, 'the DAP may determine the DAP application in the absence of [an RAR]', the Commission itself provided an RAR (dated 23 September 2016) to the presiding member of the JDAP in relation to the development application written by a planning assessing officer of the Commission (first RAR).
The first RAR recommended that the JDAP should:
Refuse DAP Application reference DAP/16/01048 and accompanying plans for the following reasons:
Reasons:
1.The proposed development is located on land reserved for Primary Regional Roads under the Metropolitan Region Scheme and is inconsistent with the purpose of the reserve.
2.The proposed development is contrary to the orderly and proper planning of the locality in that the scale and nature of the proposal would result in a significant investment in the property and an increased compensation liability, compromising the [S]tate's ability to implement its plans for the widening and upgrading of Stirling Highway.
3.The application has not adequately demonstrated that the development proposed is consistent with preserving the character and amenities of the locality.
The JDAP considered the development application at its meeting on 29 September 2016. By a majority of three to two, the JDAP did not accept the recommendation made in the first RAR to refuse the development application, but rather resolved to approve the development application, 'excluding the illuminated screen[s] proposed for the Bay View Terrace, Stirling Highway and eastern façades', 'in accordance with Clause 30 of the Metropolitan Region Scheme', subject to conditions.
On 20 October 2016, on behalf of the owner of the site, Matzin Capital Pty Ltd sought review by the Tribunal of the JDAP's determination under reg 18(2) of the DAP Regs. In particular, the applicant in that proceeding sought approval of the signs which had been excluded by the JDAP from the development approval.
The proceeding was referred for mediation on 8 December 2016. Three further mediation sessions followed on 9 February 2017, 20 March 2017 and 13 April 2017. At each of those mediation sessions, officers of the Town, as well as officers of the Department of Planning and Main Roads WA, attended. The applicant and the presiding member of the JDAP obtained and exchanged expert reports during that process. In particular, the presiding member of the JDAP sought heritage advice from Terra Rosa Consulting, as well as urban design, visual impact and amenity advice from Mackay Urban Design. The Town also obtained a heritage expert report by Mr Ron Bodycoat and provided it, by way of submission, to the JDAP. At the final mediation on 13 April 2017, it was agreed between the applicant and the presiding member of the JDAP that additional clarification would be filed by the applicant by 21 April 2017 and the Tribunal made an order inviting the JDAP to reconsider its decision, on or before 2 June 2017, under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
In the meantime, on 31 January 2017, MRS Major Amendment No. 2010/41 (MRS amendment) became effective under s 56(3) of the PD Act (as it was no longer subject to the possibility of disallowance by either House of Parliament under s 56(2) of the PD Act). Whereas, previously, the whole of the site and adjoining land to the north was reserved under the MRS for Primary Regional Roads, the MRS amendment reduced the extent of the reservation, so that only part of the site, which fronts Bay View Terrace and Stirling Highway, remains reserved, and zoned a substantial portion of the internal part of the site, in its northern section, 'Urban' under the MRS.
The part of the site on which the south-western sign is to be located remains reserved under the MRS. The eastern sign is to be mostly located on land reserved under the MRS. However, a statement and survey by Mr Jason Weaire, a licensed surveyor, presented by Gnech, indicates that 0.63 metres of the width of the eastern sign is located on land which is not reserved under the MRS. The survey by Mr Weaire also indicates that a substantial portion of the third storey addition in the development is located on land that is no longer reserved under the MRS.
Clause 2 of LPS 3 states as follows:
The Scheme shall apply to the whole of the Municipal District of the Town of Claremont (herein called "the District").
As indicated earlier, cl 5 of LPS 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.
In consequence of cl 2 and cl 5 of LPS 3, the site is located within the area to which LPS 3 applies and the responsible authority for carrying out LPS 3 in the portion of the site which is no longer reserved under the MRS is the Town. The site is not zoned or reserved under LPS 3.
As indicated earlier, in the proceeding for review of the JDAP's decision to grant development approval, excluding the signs, under the MRS, the Tribunal invited the JDAP to reconsider its decision under s 31(1) of the SAT Act. The Commission gave the presiding member of the JDAP an RAR (dated 18 May 2017) under reg 12(2) of the DAP Regs in relation to the development application written by a planning assessing officer of the Commission (second RAR). The second RAR recommended that the JDAP should:
Refuse DAP Application reference DAP/16/01048 and accompanying plans in accordance with Clause 29 of the Metropolitan Region Scheme[.]
The recommendation to refuse the development application was made for the following three reasons:
1.The proposed development is located on land reserved for Primary Regional Roads under the Metropolitan Region Scheme and is inconsistent with the purpose of this reserve. Approval of the development is contrary to the Western Australian Planning Commission's Development Control Policy 1.2 Development Control General Principles which seeks to protect the integrity of land reserved under the Metropolitan Region Scheme.
2.The application is inconsistent with the Western Australian Planning Commission's Development Control Policy 5.4 Advertising on Reserved Land, which seeks to preserve and enhance the amenity of the reserved land and the surrounding area. Approval of the LED signage would adversely impact the existing building and the heritage character of the locality due to the proposed scale, form and visual intrusiveness of LED lighting.
3.The proposed development adversely impacts the built and cultural heritage of the Bayview [sic] Terrace Commercial Heritage Precinct, and the amenity of the adjacent War Memorial.
However, at its meeting on 2 June 2017, by a majority of three to two, the JDAP resolved as follows:
Reconsider its decision dated 29 September 2016 and Approve DAP Application reference DAP/16/01048 and accompanying plans [DA plan reference numbers], in accordance with Clause 30 of the Metropolitan Region Scheme, subject to the following conditions:
…
The JDAP imposed 14 conditions of development approval, four of which relate to the LED signage. Submissions filed in this proceeding on behalf of Gnech on 24 May 2018 contain the following extraordinary statement:
The conditions of approval were drafted by Lavan [that is, the applicant's solicitors], and handed up to the JDAP for its consideration prior to the meeting. The conditions were intentionally drafted to remove all residual decision[-]making power, as much as possible, from the [Town], given the views expressed by its officers in respect of their personal opposition to the matter after that point.
Putting aside the questionable motive of seeking to exclude 'as much as possible' the local government of the district in which the development is proposed from having any role under conditions of development approval, it is extraordinary that the conditions of development approval were drafted by the applicant for development approval (and not by the professional planning officers advising the determining authority).
It is the determining authority (not an applicant for development approval) which should generally prepare conditions of development approval. Conditions of development approval form part of the determination of a development application. Clause 30(1) of the MRS enables the determining authority to 'grant its approval subject to such conditions if any as it may deem fit'. Clause 68(2)(b) of the deemed provisions in all local planning schemes, set out in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) (deemed provisions), enables the determining authority under a local planning scheme to '[grant] development approval with conditions'. Furthermore, s 162(1)(b) of the PD Act requires that 'development [be] carried out in accordance with the conditions subject to which the approval was granted' and, under s 218(c) of the PD Act, it is a criminal offence to 'commenc[e], continu[e] or carr[y] out any … development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fai[l] to comply with any such condition'. The maximum penalty prescribed by s 223 of the PD Act for this offence is a fine of $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence continues.
Given the statutory status, function and significance of conditions of development approval, and the serious penal consequences of noncompliance with conditions, conditions of development approval should generally be drafted by the professional planning officers advising the determining authority or by the planning authority itself (and not by an applicant for development approval). Moreover, this is necessary to ensure that the conditions are within power, appropriately mitigate the environmental and amenity impacts and regulate the carrying out of the approved development, in a manner which is consistent with conditions imposed on similar developments, and are clearly expressed and enforceable by the responsible authority.
It is, of course, reasonable and appropriate in certain cases for the determining authority to provide draft conditions to an applicant for development approval, or to its consultants or advisers, for comment. It may also be appropriate in certain cases for an applicant to make suggestions for conditions that might be imposed and it is usual and appropriate for applicants to draft management plans and other documents required or given effect by conditions. However, this is significantly different to the conditions of development approval having been drafted by the applicant's lawyers and 'handed up to the JDAP for its consideration prior to the meeting'.
It is acknowledged that in this case the planning assessing officer advising the JDAP recommended refusal of the development application and therefore presumably did not prepare conditions of development approval. However, the Tribunal's practice of requiring an original decision-maker to provide draft, 'without prejudice' conditions of development approval prior to hearing (which could be imposed if the Tribunal determines that the development application should be approved with conditions), while the original decision-maker is free to maintain its position that development approval should not be granted at all, indicates how appropriate drafting of conditions can be accommodated even where, as in this case, the planning assessing officer recommended refusal of the development application.
The proponent of the development has complied, or is complying, with all of the conditions of the development approval. This includes entering into a Deed of Agreement with the Commission, agreeing, among other things, that 'any improvements or alterations made to the existing building(s) within the road reserve will not be taken into consideration in determining any land acquisition cost or compensation which may be payable by the [Commission] or Main Roads WA at such time as the land is required for the immediate upgrading of Stirling Highway' (required by condition 2) and amalgamating the lots forming the site (required by condition 4).
On 9 November 2017, Gnech applied to the Town, by way of a certified application under s 14(1) of the Building Act, for a building permit to do the building work for the purpose of carrying out the development on the site.
On 18 December 2017, the Town refused to grant the building permit for the following reason:
To grant the Permit would be inconsistent with the function of the Town under the Town of Claremont Local Law Relating to Signs.
Issues for determination
As indicated earlier, the following three issues arise for determination in this review:
1.Whether development approval under LPS 3 is required in relation to the proposed building work on the site.
2.If the answer to issue 1 is 'yes', whether development approval under LPS 3 in relation to the proposed building work on the site was granted by the JDAP on 2 June 2017.
3.Whether it would be inconsistent with a function that the Town has under the Signs Local Law to grant a building permit for the proposed building work.
We will consider each of these issues in turn.
Is development approval under LPS 3 required in relation to the proposed building work?
As indicated earlier, s 162 of the PD Act states as follows:
(1)Subject to this Act, where a planning scheme or interim development order provides that development referred to in the planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies unless
(a)the approval has been obtained and is in force under the planning scheme or interim development order; and
(b)the development is carried out in accordance with the conditions subject to which the approval was granted.
(2)Nothing in this section limits or otherwise affects a right or entitlement under any other written law.
Gnech submits that development approval under LPS 3 is not required in relation to the proposed building work on the site, because, under cl 25(1) of LPS 3, development approval is only required in relation to 'development on land [which is] zoned [or] reserved under the Scheme'. As indicated earlier, the site is neither zoned nor reserved under LPS 3. Clause 25(1) and cl 25(2) of LPS 3 state as follows:
(1)Subject to clause 25(2), all development on land zoned and reserved under the Scheme requires the prior approval of the local government. A [p]erson must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part V of this Scheme.
(2)Permitted development
Except as otherwise provided in the Scheme, for the purposes of the Scheme the following development does not require the planning approval of local government -
(a)the carrying out of any building or work which affects only the interior of a building and which does not materially affect the external appearance of the building except where the building is -
(i)located in a place that has been entered in the Register of Heritage Places under the Heritage of Western Australia Act 1990;
(ii)the subject of an order under Part 6 of the Heritage of Western Australia Act 1990 or a Heritage Agreement with the Town under clause 53 of the Scheme; or
(iii)included on the Heritage Schedule under clause 78 of the Scheme with the exception of buildings used for residential purposes only that are not subject to (i) and (ii) above and the works are confined to any of the following reversible and minor works –
•Fit out of an existing kitchen, bathroom or laundry with no structural alterations;
•Replacement of light fittings;
•Painting/wall papering/plastering of internal walls;
•Internal retiling;
•Construction of new internal non-masonry, non-load bearing walls;
•New floor covering placed over but not replacing existing floor surface materials; or
•Electrical and plumbing works.
(b)the erection or extension of a single dwelling, ancillary dwelling, outbuilding, external fixture, patio, pergola, veranda or swimming pool on a lot if the development satisfies the deemed-to-comply requirements of the RCode, except where -
(i)the proposal involves a variation to a provision of the Scheme;
(ii)the proposal involves a variation to any local planning policy adopted under Section 82 of the Scheme;
(iii)the proposal involves a variation to any Structure Plan or Detailed Area Plan adopted under this Scheme that applies to the development.
(iv)the proposal is for a place that has been entered in the Register of Places under the Heritage of Western Australia Act 1990;
(vi)the proposal is for a place the subject of an Order under Part 6 of the Heritage of Western Australia Act 1990 or a Heritage Agreement with the Town under clause 53 of the Scheme;
(vii)the proposal is for a place listed on the Heritage Schedule under Clause 78 of the Scheme;
(c)the demolition of any building or structure except where the building or structure is -
(i)located in a place that has been entered in the Register of Heritage Places under the Heritage of Western Australia Act 1990;
(ii)the subject of an order under Part 6 of the Heritage of Western Australia Act 1990 or a Heritage Agreement with the Town under clause 53 of the Scheme; or
(iii)included on the Heritage Schedule under clause 78 of the Scheme.
(d)the following minor residential development where the development satisfies the deemed-to-comply requirements of the R-Codes, complies with this Scheme, with any local planning policy adopted under clause 82 of this Scheme and any Structure Plan or Detailed Area Plan adopted under this Scheme that applies to development, and with any local law, and where the building or structure is not included on the Heritage Schedule under clause 78 of this Scheme:
(i)a rainwater tank with a capacity of 5kL or less;
(ii)children's play equipment;
(iii)fill and associated retaining less than 0.5m or excavation; or
(iv)front fences
where these are located to the side or rear of an existing dwelling (excepting front fences);
(e)a home office which is also compliant with the home occupation requirements of this Scheme;
(f)dividing fences with -
(i)A height of up to 1.8m; or
(ii)A height between 1.8m and 2.3m, where both neighbours are in agreement as to the height;
(g)landscaping which does not involve fill over 0.5m;
(h)non-illuminated signage or advertising that complies with the Town's Local Law Relating to Signs or any Local Planning Policy; or
(i)any works which are temporary and in existence for less than 48 hours or such longer time as the local government agrees.
(Emphasis added)
Gnech submits, '[b]y way of analogy', that its proposed interpretation of cl 25(1) of LPS 3 (under which development approval is only required in relation to 'development on land [which is] zoned [or] reserved under the Scheme' and is therefore not required in relation to the proposed building work on the site) is not only the grammatical meaning of the text, but 'is consistent with the position adopted by the Tribunal' in Wellard Capital Pty Ltd and Town of Cottesloe [2009] WASAT 160; (2009) 65 SR (WA) 41. As Gnech submits, the factual circumstances in Wellard Capital Pty Ltd and Town of Cottesloe are similar to this case, because the site in that case was also not zoned under the local planning scheme, 'probably as a result of an oversight by the Town [of Cottesloe] after a regional road reservation, to which the land was subject, was removed in 1995': [2]. In Wellard Capital Pty Ltd and Town of Cottesloe the Tribunal said the following at [15]:
The currently operative local planning scheme is the Town of Cottesloe Town Planning Scheme No 2 (TPS 2). The subject site is unzoned under TPS 2, and it is common ground between the parties that, for that reason, planning approval is not required under TPS 2 for any development on the land. That is because cl 7.1.1 of TPS 2 only requires planning approval 'for any development on or partly on any lot zoned or reserved under (TPS 2)'.
In contrast, the Town submits that development approval under LPS 3 is required in relation to the proposed building work on the site, because, under cl 60 of the deemed provisions, development approval is required for all development in the 'Scheme area', including the site (unless the development is of a type referred to in cl 61 of the deemed provisions).
Clause 60 of the deemed provisions states as follows:
A person must not commence or carry out any works on, or use, land in the Scheme area unless
(a)the person has obtained the development approval of the local Government under Part 8; or
(b)the development is of a type referred to in clause 61.
The Town submits that the site is located within the 'Scheme area', for the purposes of cl 60 of the deemed provisions, because, as indicated earlier, cl 2 of LPS 3 states as follows:
The Scheme shall apply to the whole of the Municipal District of the Town of Claremont (herein called "the District").
Furthermore, the Town submits that cl 60 of the deemed provisions is inconsistent with cl 25(1) of LPS 3 and that, therefore, under 257B(3) of the PD Act, cl 60 of the deemed provisions prevails and cl 25(1) of LPS 3 is of no effect.
Section 257B(2) and s 257B(3) of the PD Act state as follows:
(2)Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
(3)If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
Regulation 10(4) of the LPS Regs states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
Furthermore, reg 8(1)(c) of the LPS Regs expressly states that:
The documents that comprise a local planning scheme are the following
…
(c)if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text those provisions[.]
In consequence of s 257B(2) of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regs, the deemed provisions in Sch 2 of the LPS Regs have effect as part of LPS 3. Furthermore, in consequence of s 257B(3) of the PD Act, if a deemed provision that has effect as part of LPS 3 is inconsistent with another provision of LPS 3, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect'.
Clause 60(b) of the deemed provisions exempts development of a type referred to in cl 61 of the deemed provisions from the requirement to obtain development approval in order to commence or carry out any works on, or use, land in the Scheme area. Clause 61 of the deemed provisions states as follows:
(1)Development approval of the local government is not required for the following works
(a)the carrying out of works that are wholly located on an area identified as a regional reserve under a region planning scheme;
(b)the carrying out of internal building work which does not materially affect the external appearance of the building unless the development is located in a place that is
(i)entered in the Register of Heritage Places under the Heritage of Western Australia Act 1990; or
(ii)the subject of an order under the Heritage of Western Australia Act 1990 Part 6; or
(iii)included on a heritage list prepared in accordance with this Scheme and identified on that list as having an interior with cultural heritage significance; or
(iv)the subject of a heritage agreement entered into under the Heritage of Western Australia Act 1990 section 29;
(c)the erection or extension of a single house on a lot if the R-Codes apply to the development and the development satisfies the deemed-to-comply requirements of the R-Codes unless the development is located in a place that is
(i)entered in the Register of Heritage Places under the Heritage of Western Australia Act 1990; or
(ii)the subject of an order under the Heritage of Western Australia Act 1990 Part 6; or
(iii)included on a heritage list prepared in accordance with this Scheme; or
(iv)within an area designated under the Scheme as a heritage area; or
(v)the subject of a heritage agreement entered into under the Heritage of Western Australia Act 1990 section 29;
(d)the erection or extension of an ancillary dwelling, outbuilding, external fixture, boundary wall or fence, patio, pergola, veranda, garage, carport or swimming pool on the same lot as a single house or a grouped dwelling if the R-Codes apply to the development and the development satisfies the deemed-to-comply requirements of the R-Codes unless the development is located in a place that is
(i)entered in the Register of Heritage Places under the Heritage of Western Australia Act 1990; or
(ii)the subject of an order under the Heritage of Western Australia Act 1990 Part 6; or
(iii)included on a heritage list prepared in accordance with this Scheme; or
(iv)within an area designated under the Scheme as a heritage area; or
(v)the subject of a heritage agreement entered into under the Heritage of Western Australia Act 1990 section 29;
(e)the demolition of a single house, ancillary dwelling, outbuilding, external fixture, boundary wall or fence, patio, pergola, veranda, garage, carport or swimming pool except where the single house or other structure is
(i)located in a place that is entered in the Register of Heritage Places under the Heritage of Western Australia Act 1990; or
(ii)the subject of an order under the Heritage of Western Australia Act 1990 Part 6; or
(iii)included on a heritage list prepared in accordance with this Scheme; or
(iv)located within an area designated under this Scheme as a heritage area; or
(v)the subject of a heritage agreement entered into under the Heritage of Western Australia Act 1990 section 29;
(f)temporary works which are in existence for less than 48 hours, or a longer period agreed by the local government, in any 12 month period;
(g)the temporary erection or installation of an advertisement if
(i)the advertisement is erected or installed in connection with an election, referendum or other poll conducted under the Commonwealth Electoral Act 1918 (Commonwealth), the Electoral Act 1907 or the Local Government Act 1995; and
(ii)the primary purpose of the advertisement is for political communication in relation to the election, referendum or poll; and
(iii)the advertisement is not erected or installed until the election, referendum or other poll is called and is removed no later than 48 hours after the election, referendum or other poll is conducted;
(h)the erection or installation of a sign of a class specified in a local planning policy or local development plan that applies in respect of the sign unless the sign is to be erected or installed
(i)on a place included on a heritage list prepared in accordance with this Scheme; or
(ii)on land located within an area designated under this Scheme as a heritage area;
(i)the carrying out of any other works specified in a local planning policy or local development plan that applies to the development as works that do not require development approval;
(j)the carrying out of works of a type identified elsewhere in this Scheme as works that do not require development approval.
(2)Development approval of the local government is not required for the following uses
(a)a use that is wholly located on an area identified as a regional reserve under a region planning scheme;
(b)development that is a use identified in this Scheme as a use that is permitted in the zone in which the development is located and
(i)the development has no works component; or
(ii)development approval is not required for the works component of the development;
(c)the use of premises as a home office;
(d)temporary use which is in existence for less than 48 hours, or a longer period agreed by the local government, in any 12 month period;
(e)any other use specified in a local planning policy or local development plan that applies to the development as a use that does not require development approval;
(f)use of a type identified elsewhere in this Scheme as use that does not require development approval.
(3)Despite subclause (1) development approval may be required for certain works carried out
(a)in a special control area; or
(b)on land designated by an order made under the Fire and Emergency Services Act 1998 section 18P as a bush fire prone area.
(4)For the purposes of subclause (1)(c) or (d), development is to be taken to satisfy a deemed-to-comply requirement of the R-Codes if it complies with
(a)a requirement in a local development plan or activity centre plan made under the R-Codes that amends or replaces the deemed-to-comply requirement; or
(b)a requirement
(i)in a structure plan that was approved before the day referred to in the Planning and Development (Local Planning Schemes) Regulations 2015 regulation 2(b); and
(ii)that amends or replaces the deemed-to-comply requirement;
or
(c)a requirement in a local planning policy that amends or replaces the deemed-to-comply requirement.
(5)If under subclause (1)(c) or (d) development approval is not required for the carrying out of works on land, the owner of the land may provide to the local government confirmation of the matters set out in subclause (1)(c) or (d), as relevant, in a manner and form approved by the Commission.
(Emphasis added)
As indicated earlier, s 257B(3) of the PD Act states that if a deemed provision 'is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect'. As also indicated earlier, the Town submits that cl 60 of the deemed provisions is inconsistent with cl 25(1) of LPS 3 and therefore prevails. In support of this submission, the Town relies on the reasoning of the Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 at [40]-[47].
For essentially five reasons which we will address below, Gnech submits that cl 60 of the deemed provisions is not relevantly inconsistent with cl 25(1) of LPS 3 and that, consequently, development approval is not required under LPS 3 in relation to the proposed building work on the site.
For the reasons which follow, we accept the Town's submission that cl 60 of the deemed provisions is inconsistent with cl 25(1) of LPS 3 and therefore prevails.
In Puma Energy Australia and City of Cockburn, the Tribunal was called upon to determine whether cl 67 of the deemed provisions, which sets out matters to be considered by the determining authority (where relevant) in deciding whether to grant development approval for a proposed development, is inconsistent with cl 10.2 of the City of Cockburn Town Planning Scheme No. 3, which also sets out matters to be considered by the determining authority (where relevant) in deciding whether to grant development approval for a proposed development. In Puma Energy Australia and City of Cockburn, the Tribunal held at [40]-[47] as follows:
40The words 'inconsistent' and 'inconsistency' in s 257B(3) of the PD Act bear their ordinary meanings. The adjective 'inconsistent' is defined in The Macquarie Dictionary (6th edition, 2013) at page 751 as follows:
1. lacking in harmony between the different parts or elements; selfcontradictory. 2. lacking agreement, as one thing with another, or two or more things in relation to each other; at variance. 3. not consistent in principles, conduct, etc. 4. acting at variance with professed principles. 5. Logic incompatible.
41The noun 'inconsistency' is defined in The Macquarie Dictionary at page 751 as follows:
1. the quality of being inconsistent. 2. something inconsistent.
42In Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 (Castle Constructions), an appeal before the New South Wales Court of Appeal turned on whether one provision of a local planning scheme (cl 30 of the North Sydney Local Environmental Plan 2001 (NSLEP), which provided for a building height plane (BHP) control with respect to the erection of buildings) was inconsistent with another provision of the same local planning scheme (cl 28D of NSLEP, which related to building heights and massing within the North Sydney Centre in which the site was located). If cl 30 of the NSLEP was inconsistent with cl 28D of the NSLEP, then, under cl 28A of the NSLEP, cl 28D 'prevail[ed] over [cl 30], to the extent of any inconsistency …'. Tobias JA (with whom Bell J agreed at [145]) delivered the judgment of the majority, holding that cl 28D was inconsistent with cl 30 of the NSLEP and therefore that cl 28D prevailed over cl 30.
43At [41] Tobias JA said the following:
It was ultimately common ground that the term 'inconsistency' in cl 28A was to be construed in the manner adopted by Kirby P in Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 at 331 where he observed that the term 'inconsistency' in s 36 of the [Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)] was to be construed having regard to the ordinary meaning of that word. His Honour therefore rejected an argument that the term ought to be approached in a manner similar to that adopted when considering the operation of s 109 of the Constitution. He considered that s 36 concerned, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature was to prevail. The resolution of that dispute required only that the word 'inconsistency' be give its ordinary natural meaning without the gloss which had necessarily developed around the meaning of the word in a constitutional setting. The President continued in those terms:
Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is 'want of consistency or congruity'; 'lack of accordance or harmony' or 'incompatibility, contrariety, or opposition' with another environmental planning instrument.
44At [55(h)], his Honour held as follows:
The question in the present case is whether one provision in an instrument made by the Minister as delegated legislation prevails over a different provision in the same instrument. Were it not for the eschewing by Kirby P in Coffs Harbour of the approach based on s 109 of the Constitution to the operation of s 36 of the EPA Act, it would be tempting to adopt the 'covering the field' test as the appellant in its written submissions pressed upon the Court, notwithstanding that it appears to have fallen out of favour in some contexts not presently relevant: cf Sweedman v Transport Accident Commission (2006) 224 ALR 625 at 636 [48]; [2006] HCA 8 at [48]. Close attention to the particular and complex provisions of cl 28D indicate an appearance of exhaustiveness on the subject of building heights within the Centre thereby creating an incompatibility and inconsistency between it and cl 30. I do not think that one is departing from the ordinary natural meaning of 'inconsistency' which, as Kirby P points out in Coffs Harbour, involves incongruity as well as incompatibility, by concluding that that incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the 'appearance of exhaustiveness' on the same subject matter of cl 28D with respect to development within the Centre with the consequence, as mandated by cl 28A, that cl 28D prevails to the extent of the inconsistency over cl 30.
45Clause 67 of the deemed provisions is inconsistent with cl 10.2 of TPS 3 (and with all other provisions of local planning schemes based on cl 10.2 of the former Model Scheme Text), because both cl 67 of the deemed provisions and cl 10.2 of TPS 3 clearly seek to provide a comprehensive and exhaustive set of considerations which the local government (and the Tribunal on review) is required to have 'due regard to, insofar as they are relevant, in considering an application for development approval. This is apparent, in the case of each of these provisions, from the large number of matters for consideration (in 27 paragraphs in each provision), the breadth of planning considerations stated in each provision, and the final 'catchall' provision in each, namely 'any other planning consideration the local government considers appropriate' (cl 67(zb) of the deemed provisions) and 'any other consideration the Local government considers relevant' (cl 10.2.1(za) of TPS 3, emphasis original). The range of planning considerations in each of the provisions is also strikingly similar, although there are some differences between the provisions.
46As cl 67 of the deemed provisions seeks to provide a comprehensive and exhaustive set of considerations for the determination of a development application under TPS 3 and therefore to perform precisely the same function as cl 10.2 of TPS 3 (and all other provisions in local planning schemes based on cl 10.2 of the Model Scheme Text), cl 67 of the deemed provisions is inconsistent with cl 10.2 of TPS 3 (and all equivalent provisions in other local planning schemes). Applying the ordinary, natural meaning of 'inconsistency', there is incompatibility, incongruity and lack of harmony between the substance of cl 67 of the deemed provisions and the substance of cl 10.2 of the TPS 3, resulting from the 'appearance of exhaustiveness' of cl 67 of the deemed provisions on the subject of the matters for consideration in the determination of development applications under TPS 3. To adopt and adapt the language of Tobias JA in Castle Constructions at [55(h)]:
… Close attention to the particular and complex provisions of [cl 67 of the deemed provisions] indicate an appearance of exhaustiveness on the subject of [the matters for consideration in the determination of a development application under TPS 3] thereby creating an incompatibility and inconsistency between it and [cl 10.2 of TPS 3].
47In consequence, under s 257B(3) of the PD Act, cl 67 of the deemed provisions prevails over cl 10.2 of the Scheme text to the extent of the inconsistency. In effect, cl 67 of the deemed provisions has replaced cl 10.2 of TPS 3 (and all equivalent provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text) by virtue of s 257B(3) of the PD Act.
In our view, applying the reasoning in Puma Energy Australia and City of Cockburn, cl 60 of the deemed provisions is inconsistent with cl 25(1) of LPS 3, because both of these provisions clearly seek to provide a comprehensive and exhaustive statement of when development approval is required under LPS 3 (unless the development is of a type referred to in cl 61 of the deemed provisions or is identified as permitted development in cl 25(2) of LPS 3). Clause 60 of the deemed provisions and cl 25(1) of LPS 3 therefore perform precisely the same function. Applying the ordinary, natural meaning of 'inconsistency', there is an incompatibility, incongruity and lack of harmony between the substance of cl 60 of the deemed provisions and the substance of cl 25(1) of LPS 3, resulting from the 'appearance of exhaustiveness' of cl 60 of the deemed provisions on the subject matter of what development requires development approval under LPS 3.
As the Town submits, Wellard Capital Pty Ltd and Town of Cottesloe is distinguishable, because although the facts of that case are similar to this case, and although the terms of cl 7.1.1 of the Town of Cottesloe Town Planning Scheme No. 2 are similar to cl 25(1) of LPS 3, that case was determined before the deemed provisions had effect as part of local planning schemes.
As indicated earlier, Gnech submits, for essentially five reasons, that cl 60 of the deemed provisions is not relevantly inconsistent with cl 25(1) of LPS 3 and that, consequently, development approval is not required under LPS 3 in relation to the proposed building work on the site. Gnech's 'primary argument' was expressed by its counsel, Mr Paul McQueen, as follows:
[T]he primary argument that I rely upon is that [cl] 25 [of LPS 3], being the specific provision, is not inconsistent with the notion of Scheme area, which is the correct approach and clause 60 of the deemed provisions can sit comfortably without construction of Scheme area combined with clause 25. So we would accept that everything within zoned and reserved land is part of the Scheme area, and an approval is required for it.
Conversely, if it's not zoned or reserved, then it's not part of the municipality to which the Scheme applies, for the purposes of developmental approval.
(ts 22, 1 May 2018)
However, cl 25(1) of LPS 3 does not prescribe the 'Scheme area' for the purposes of cl 60 of the deemed provisions. Rather, as indicated earlier, it seeks to perform precisely the same function as cl 60 of the deemed provisions, that is, to provide a comprehensive and exhaustive statement of when development approval is required under LPS 3. Furthermore, cl 2 of LPS 3 clearly provides that the 'Scheme area' is the whole of the district of the Town, because it says that '[t]he Scheme shall apply to the whole of the Municipal District of the Town …'.
Secondly, Gnech refers to the definition of 'Scheme area' in cl 1 of the deemed provisions, and submits that that definition is inconsistent with cl 2 of LPS 3, but is consistent with an interpretation of cl 25(1) of LPS 3 under which that provision prescribes the area to which LPS 3 applies for development approval purposes. The term 'Scheme area' is defined in cl 1 of the deemed provisions as follows:
Scheme area means the area to which this Scheme applies[.]
Gnech submits as follows:
… So clause 2 says:
The Scheme shall apply to the whole of the Municipal District in the Town of Claremont.
In other words, clause 2 says everything within the District is captured by the Scheme. The Scheme area in the deemed provision says it means the area to which the Scheme applies. Now, I believe that should be read this way, and I will advance the argument in a moment. The area to which the Scheme applies, we say, is prescribed, at least for development approval, by clause 25. That is, all zoned land and all reserved land is controlled by the Scheme, and that's the Scheme area to which the Scheme applies.
Land that is neither zoned nor reserved the Scheme doesn't apply to.
…
(ts 16, 1 May 2018)
However, the definition of 'Scheme area' in cl 1 of the deemed provisions is not inconsistent with cl 2 of LPS 3. Indeed, as Mr Craig Slarke, counsel for the Town, submits, the definition of 'Scheme area' ('the area to which this Scheme applies'), 'deliberately [leaves] it to the local planning scheme to stipulate what is the [S]cheme area' (ts 36, 1 May 2018). Clause 2 of LPS 3 prescribes 'the area to which this Scheme applies' for the purposes of the definition of 'Scheme area', namely the whole of the district of the Town. There is no inconsistency between the definition of 'Scheme area' in cl 1 of the deemed provisions and the clear terms of cl 2 of LPS 3.
Furthermore, reading cl 25(1) in the context of the provisions of LPS 3 as a whole (which includes cl 2), it is clear that it is not intended to prescribe the area to which the Scheme applies, but rather to prescribe when development approval is required under LPS 3 in the Scheme area (subject to cl 25(2)).
Thirdly, Gnech submits that there is relevantly no inconsistency between cl 60 of the deemed provisions and cl 25(1) of LPS 3, because LPS 3 does not contain any provisions to enable assessment of a development application on land that is neither zoned nor reserved and 'that's because, we say, it's not intended for development approval to be required on land that is neither reserved nor zoned' (ts 17, 1 May 2018).
However, cl 67 of the deemed provisions prescribes matters to be considered by a determining authority when considering a development application. These provisions apply to the assessment of development applications for development on land which is neither zoned nor reserved under LPS 3.
Fourthly, Gnech submits that:
What the respondent is doing is combining a clause in the Scheme [namely, clause 2] with a clause in the deemed provisions [namely, clause 60], but you can't do that; you've got to apply it consistently …
(ts 23, 1 May 2018)
However, s 257B(3) of the PD Act requires consideration as to whether 'a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme'. Although a provision of a local planning scheme must be read in the context of all other provisions of the scheme, s 257B(3) of the PD Act requires consideration as to whether a particular deemed provision is inconsistent with another particular provision of the scheme. For reasons set out earlier, cl 60 of the deemed provisions is inconsistent with cl 25(1) of LPS 3. For reasons also set out earlier, the definition of 'Scheme area' in cl 1 of the deemed provisions is not inconsistent with cl 2 of LPS 3, but rather cl 2 of LPS 3 gives effect to the definition of 'Scheme area' in cl 1 of the deemed provisions. The Town's submission, that under cl 60 of the deemed provisions and cl 2 of LPS 3, development approval is required under LPS 3 in relation to the proposed building work on the site, is not impermissible because it relies on a deemed provision (which is inconsistent with a provision in the text of LPS 3) together with another provision of the text of LPS 3.
Finally, Gnech refers to cl 61(1)(j) of the deemed provisions under which, as indicated earlier, development approval is not required for:
the carrying out of works of a type identified elsewhere in this Scheme as works that do not require development approval.
Gnech submits as follows:
What we say there is that once again [cl] 25 [of LPS 3] can be read harmoniously with [cl] 60 and [cl] 61 of the deemed provisions, in that the specific provision of the Scheme not the general notion in clause 2, but the specific provision of the Scheme excludes, by implication, any work carried out on land that is neither zoned nor reserved.
(ts 21, 1 May 2018)
We do not accept this submission for the following two reasons advanced by the Town. First, as the Town submits, because cl 60 of the deemed provisions is inconsistent with cl 25(1) of LPS 3 (as we have determined):
Clause 60 is intended to replace entirely provisions such as clause 25(1) of [LPS] 3 and the effect of section 257B(3) of the Planning and Development Act, is that it does so. So as clause 25(1) is inoperative, it cannot provide an exception elsewhere in the scheme setting out works which do not require approval. And the only purpose of clause 25(1) is to do what clause 60 does. It has no other purpose in this scheme, and as clause 60 replaces it, clause 25(1) is entirely redundant.
(ts 38, 1 May 2018)
Secondly, as the Town also submits:
Clause 25(1) of TPS 3 does not identify works that do not require development approval, rather it is a general provision which stipulates development which does require approval, but subject to clause 25(2).
(ts 38, 1 May 2018)
Clause 60 of the deemed provisions provides that a person must not commence or carry out any works on, or use, land in the Scheme area of LPS 3 (which includes the site), unless development approval has been obtained under LPS 3 or the development is of a type referred to in cl 61. Other than in terms of Gnech's fifth submission referred to above (which refers to cl 61(1)(j) of the deemed provisions and incorrectly contends that cl 25(1) of LPS 3 is a provision referred to in cl 61(1)(j)), Gnech does not contend that development in relation to the proposed building work on the site is referred to in cl 61 of the deemed provisions. As the Town submits, '[t]he closest exemption is in [cl] 61(1)(a)' (ts 35, 1 May 2018). As indicated earlier, cl 61(1)(a) of the deemed provisions states that the following development does not require development approval under a local planning scheme:
the carrying out of works that are wholly located on an area identified as a regional reserve under a region planning scheme[.]
(Emphasis added)
However, the proposed building work does not involve 'the carrying out of works that are wholly located on an area identified as a regional reserve under a region planning scheme' (emphasis added), but rather involve the carrying out of works that are partly located on an MRS reserve. The exemption in cl 61(1)(a) of the deemed provisions does not relevantly apply. No other provision in cl 61 of the deemed provisions applies.
It follows that, unless development approval was granted by the JDAP under LPS 3 in relation to the proposed building work on 2 June 2017, the application for a building permit must be refused under s 20(2) of the Building Act and reg 18(2)(b) of the Building Regs. We will turn to that issue shortly. However, it is convenient at this point to refer to one other aspect of potential inconsistency between a deemed provision and a provision of LPS 3, as it provides context to a matter which we will refer to in relation to the third issue for determination in this proceeding.
The parties did not make any submissions as to whether cl 61 of the deemed provisions is inconsistent with cl 25(2) of LPS 3, for the purposes of s 257B(3) of the PD Act. We, therefore, do not express any considered view on that matter. However, subject to submissions in an appropriate case, it appears that (subject to cl 61(1)(j) and cl 61(2)(f) of the deemed provisions), both clause 61 of the deemed provisions and cl 25(2) of LPS 3 seek to provide a comprehensive and exhaustive statement of development for which development approval is not required under LPS 3 and, therefore, that these provisions perform precisely the same function. Subject to submissions in an appropriate case, it therefore appears that (subject to cl 61(1)(j) and cl 61(2)(f) of the deemed provisions) cl 61 of the deemed provisions is inconsistent with and has therefore, in effect, replaced cl 25(2) of LPS 3.
However, as indicated earlier, cl 61(1)(j) and cl 61(2)(f) of the deemed provisions state as follows:
(1)Development approval of the local government is not required for the following works
…
(j)the carrying out of works of a type identified elsewhere in this Scheme as works that do not require development approval.
(2)Development approval of the local government is not required for the following uses
…
(f)use of a type identified elsewhere in this Scheme as use that does not require development approval.
Thus, notwithstanding the apparent inconsistency between cl 61 of the deemed provisions and cl 25(2) of LPS 3, cl 61(1)(j) and cl 61(2)(f) of the deemed provisions continue the effect of any part of cl 25(2) of LPS 3 which identifies any type of works or any type of use which does not require development approval beyond the type of works and uses specifically identified in cl 61 of the deemed provisions. As we will discuss in relation to the third issue for determination in this proceeding below, the category of further exempt development which continues to have effect under cl 61(1)(j) and cl 61(2)(f) of the deemed provisions includes 'nonilluminated signage or advertising that complies with the Town's Local Law Relating to Signs', which is identified as development that does not require development approval in cl 25(2)(h) of LPS 3. This part of cl 25(2) of LPS 3 continues to have effect, because works and use of this type is not specifically identified as development for which development approval is not required in cl 61 of the deemed provisions.
Was development approval under LPS 3 granted by the JDAP on 2 June 2017?
As indicated earlier, on 24 June 2016, the planning consultant for the owner of the site purported to make an application for development approval under LPS 3 in relation to the proposed building work on the site. However, development approval in relation to the proposed building work on the site was not required under LPS 3 until the MRS amendment became effective under s 56(3) of the PD Act on 31 January 2017, when a substantial portion of the site ceased to be reserved under the MRS. Therefore, when the JDAP first granted development approval (excluding the signs) on 29 September 2016, the JDAP could not have granted development approval under LPS 3 for the proposed building work on the site. Neither party contends that the JDAP purported to do so at that time.
However, Gnech submits that, if development approval is required under LPS 3 in relation to the proposed building work on the site (as we determined above is the case), then, properly construed, the development approval granted by the JDAP on 2 June 2017 involved not only the grant of development approval under the MRS, but also under LPS 3.
In support of its submission, Gnech relies on certain aspects of the second RAR, the terms of 'advice notes' appended to the JDAP's grant of development approval, and the heading of the instrument of development approval issued on behalf of the JDAP. We will address these aspects in the course of our reasons below.
The Town accepts that the JDAP had the power to grant development approval under LPS 3 in relation to the proposed building work at its meeting on 2 June 2017. However, the Town submits that, as a matter of fact, the JDAP did not do so.
We find that the JDAP did not grant development approval under LPS 3 in relation to the proposed building work on the site at its meeting on 2 June 2017, for the following reasons.
The second RAR did not say to the JDAP that development approval in relation to the proposed building work on the site is required under LPS 3, or that an application for development approval under LPS 3 has been made, or that the development application under LPS 3 was before the JDAP for determination at its meeting. Rather, the second RAR only refers to the development application under the MRS and recommends that the JDAP should determine the development application under the MRS by refusal. As indicated earlier, the recommendation to the JDAP in the second RAR was that the JDAP should:
Reconsider its decision dated 29 September 2016 and refuse DAP Application reference DAP/16/01048 and accompanying plans in accordance with Clause 29 of the Metropolitan Region Scheme, for the following reasons:
…
(Emphasis by underlining added)
The reference in the recommendation to cl 29 of the MRS is clearly an error, because cl 29 is not the provision of the MRS relevantly authorising the responsible authority to determine the development application.[2] Rather, the provision authorising the determination of the development application under the MRS is cl 30. However it is clear from the recommendation to the JDAP that the author of the second RAR understood that the only decision to be made by the JDAP at its meeting was to reconsider its decision made on 29 September 2016 (which involved the granting of conditional development approval to a development application under the MRS) and to refuse that development application 'in accordance with … the Metropolitan Region Scheme' (not under LPS 3). There is no evidence that the JDAP had any different understanding.
[2] Clause 29 of the MRS requires the local authority to forward a development application under the MRS to the Commission for determination in certain circumstances, to make recommendations to the Commission for consideration in relation to such an application, and to determine other development applications for approval under the MRS under delegation from the Commission.
As Gnech points out, in the second RAR, the officer informed the JDAP that there had been a change in the MRS reservation since the grant of development approval on 29 September 2016 and that part of the site was now zoned Urban under MRS and was not zoned under LPS 3. However, at no point in the second RAR is there any indication that development approval was sought, or required, under LPS 3 in relation to the development.
As Gnech also points out, the second RAR states that that while the site is not currently zoned under LPS 3, it is considered that the Town Centre zone 'will most likely apply to that portion of the [site] that will no longer be [sic] affected by the MRS PPR reserve' and that 'in considering how the proposal would impact on the amenities of the locality, it is reasonable to have regard to the objectives of the Town Centre zone'. The second RAR then discusses certain provisions of LPS 3.
However, it is clear that the planning assessment in the second RAR in general, and the assessment of the impact of the proposal on the preservation of the amenities of the locality in particular, although referring to provisions of LPS 3 which would apply in relation to land zoned Town Centre, involves a planning assessment of the development under cl 30(1) of the MRS, not a planning assessment of the development under LPS 3. Moreover, the planning assessment in the second RAR which refers to provisions of LPS 3 is in very similar terms to the planning assessment in the first RAR which also refers to provisions of LPS 3 (at a time when development approval under LPS 3 was not required and could not have been granted by the JDAP).
Thus, both the first RAR and the second RAR commence the 'Planning Assessment' in identical terms as follows:
Pursuant to Clause 30(1) of the MRS, the [Commission] must have regard to the following factors when considering a development application:
•The purpose for which the land is zoned or reserved under the Scheme;
•The orderly and proper planning of the locality; and
•The preservation of the amenities of the locality.
Clause 30(1) of the MRS states as follows:
The Commission or a local authority exercising the powers of the Commission so delegated to it under the Planning and Development Act 2005 may consult with any authority that in the circumstances it thinks appropriate; and having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality may, in respect of any application for approval to commence development, refuse its approval or may grant its approval subject to such conditions if any as it may deem fit.
(Emphasis added)
Division 4 of the Signs Local Law contains provisions including cl 21, which relates to an 'illuminated sign', and cl 26, which relates to a 'horizontal sign'. The terms 'illuminated sign' and 'horizontal sign' are each defined in cl 5.1 of the Signs Local Law as follows:
"illuminated sign" means a sign that is capable of being lighted whether from within or from without the sign by artificial light provided solely or mainly for that purpose;
"horizontal sign" means a sign affixed or attached with its largest dimension horizontal to the wall of a building or a structure to which it is attached;
As the Town submits and Gnech does not dispute, the signs which are the subject of the proposed building work are each an 'illuminated sign' and a 'horizontal sign', as those terms are defined for the purposes of the Signs Local Law. Furthermore, as the Town submits and Gnech does not dispute, the signs are in breach of the maximum lighting intensity prescribed in relation to an illuminated sign by cl 21.3 of the Signs Local Law (which provides that '[t]he light from an illuminated sign shall not have a greater intensity that 25 lumins [sic] …') and the maximum size for a horizontal sign prescribed in cl 26.1 of the Signs Local Law (which provides that '[a] horizontal sign … shall not have a greater superficial area than 2m2') and cl 26.2 of the Signs Local Law (which provides that '[w]here the distance between the bottom of a horizontal sign and the ground below that sign' is between 7.5 metres and 9 metres, 'the height of that sign shall not exceed' 750 millimetres, and '[w]here the distance between the bottom of a horizontal sign and the ground below that sign' is more than 9 metres, 'the height of that sign shall not exceed' 900 millimetres).
The Town submits that because 'the proposed Signs cannot be approved under the Local Law, … it would be inconsistent with the [Town's] functions under the Local Law to grant a building permit for the Signs'. Gnech submits that, for each of four reasons, the granting of a building permit would not be inconsistent with the Town's functions under the Signs Local Law. For reasons which follow, we accept Gnech's first submission and part of its second submission, and we do not accept its third and fourth submissions.
Gnech's first submission was put by Mr McQueen as follows:
… If there's a local law that needs to be complied with and we say there isn't but if there is, well, that's addressed at the time that the sign is operating, or sought to be operated. We can apply for it if we need it we say we don't and it can either be approved or refused, granted or denied. Now, what the respondent then says is, but the complicating factor is that we cannot issue a sign licence because what you propose is inconsistent with the local law.
But once again, that is confusing, with respect a future act with a current obligation to process the building permit because but for these two things, there's nothing said about why we shouldn't get our building permit; we've complied with the approval we have. One again, if the Town is right that a permit is required, and if the Town is right that one cannot be issued, well then, it's refused and we bring the necessary review proceeding to test that.
But to confuse that with refusing to grant the building permit now because there may be a future need for a sign licence is, with respect, misplaced. And it doesn't compromise the functions of the Town, because if we need an approval and we don't obtain one, then one of the functions of the Town is to exercise its power, if it chooses to do so, to enforce our lack of obtaining that approval through a prosecution or other enforcement measure.
(ts 24-25, 1 May 2018)
We accept this submission. The Town's functions under the Signs Local Law are to enforce the local law and to consider and determine applications for sign licences under it. Granting a building permit for the proposed building work (including the signs) is not inconsistent with the Town's functions of enforcement and determination of licence applications under the Signs Local Law. These functions would remain and be unaffected by granting a building permit for the proposed building work.
Secondly, referring to s 3.7 of the LG Act, which states that '[a] local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law', Gnech submits that:
the application of the Local Law in the manner contemplated by the [Town] is inconsistent with the PD Act, the DAP Regs, the MRS[, LPS 3] and the Development Approval granted pursuant to those statutory instruments, and is therefore inoperative, to the extent of the inconsistency.
In terms of the 'PD Act', Gnech refers to s 171A(2) of that Act, which states, in part, as follows:
The Governor may make regulations
(a)providing that, despite any other provision of this Act or a planning instrument, a development application of a class or kind prescribed for the purposes of this paragraph
(i)must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and
(ii)cannot be determined by a local government or the Commission;
(ba)providing that, despite any other provision of this Act or a planning instrument, if
(i)an applicant for approval of development elects in accordance with the prescribed procedure to have a development application determined by a DAP; and
(ii)the development application is of a class or kind prescribed by the regulations for the purposes of this paragraph,
the development application
(iii)must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and
(iv)cannot be determined by a local government or the Commission;
…
Gnech also refers to regs 6, 7 and 8 of the DAP Regs. As indicated earlier, regs 6 and 7 of the DAP Regs relevantly enable an applicant for the approval of a development with an estimated cost of $2 million or more and less than $10 million to elect to have the application determined by a DAP. Regulation 8(1) of the DAP Regs states as follows:
Despite any other provision of the Act or a planning instrument, any DAP application for approval of development within a district for which a DAP is established
(a)must be determined by the DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and
(b)cannot be determined by the local government for the district or the Commission.
Mr McQueen submits on behalf of Gnech as follows:
The respondent says, however, the local law deals with a requirement for an approval for signs. If one was to apply that local law, I say it would usurp the whole statutory regime of JDAPs, because then it would be in conflict with the power of the JDAP to determine it not the approval itself which, yes, it's inconsistent with that but it's inconsistent with the power of the decision-maker to determine whether these signs should be allowed or not. That's because a sign is development.
(ts 30-31, 1 May 2018)
As indicated earlier, s 3.7 of the LG Act states as follows:
A local law made under this Act is inoperative to the extent that it is inconsistent with this Act or any other written law.
The word 'inconsistent' in s 3.7 of the LG Act bears its ordinary meaning. As indicated in Puma Energy Australia and City of Cockburn at [40]:
… The adjective 'inconsistent' is defined in The Macquarie Dictionary (6th edition, 2013) at page 751 as follows:
1. lacking in harmony between the different parts or elements; selfcontradictory. 2. lacking agreement, as one thing with another, or two or more things in relation to each other; at variance. 3. not consistent in principles, conduct, etc. 4. acting at variance with professed principles. 5. Logic incompatible.
As indicated earlier, the term 'written law' is defined in s 5 of the Interpretation Act as follows:
written law means all Acts for the time being in force and all subsidiary legislation for the time being in force[.]
As also indicated earlier, the term 'subsidiary legislation' is defined in s 5 of the Interpretation Act as follows:
subsidiary legislation means any proclamation, regulation, rule, local law, by law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect[.]
The PD Act and the DAP Regs are each 'written laws' for the purposes of s 3.7 of the LG Act. The PD Act is, of course, an 'Act' and the DAP Regs are 'regulations' and therefore 'subsidiary legislation'.
However, the Signs Local Law is not lacking in harmony, lacking in agreement or at variance with s 171A(2) of the PD Act or the DAP Regs made under that provision, much less does it 'usurp the whole statutory regime of JDAPs', because, as Mr Slarke submits on behalf of the Town:
… all section 171A and the DAP regulations do is say that a development application under a planning scheme has to be determined by the DAP. There's nothing about the local law gives rise to no inconsistency between the local law and the Planning and Development or the DAP regulations at all.
(ts 48, 1 May 2018)
Although s 171A(2) of the PD Act and regs 6-8 of the DAP Regs confer exclusive decision-making authority on a DAP in relation to a 'DAP application' and provides that a 'DAP application' cannot be determined by the responsible authority under the relevant planning scheme (that is, by the Commission or its delegate under a region planning scheme or by the local government under a local planning scheme), it does not have the effect that the responsible authority's power to determine another type of regulatory application is removed. Section 171A(2) of the PD Act and regs 6-8 of the DAP Regs simply substitute the relevant DAP for the Commission or the local government of the district as the decision-maker in relation to a 'DAP application'.
We also do not accept Gnech's submission that the Signs Local Law is inconsistent with the MRS. As the Full Court of the Supreme Court of Western Australia (Parker J, Murray and Anderson JJ agreeing) said in Marshall and Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274; (2002) 124 LGERA 118 at [31]:
It is apparent from the MRS Act and the Planning Act that it is not the legislative scheme that the MRS and a town planning scheme of a local government perform precisely the same role. The MRS is clearly intended to provide a broad general blueprint to guide and coordinate the overall planning and development of the metropolitan region. Within that broad and general blueprint, it is left to the very many town planning schemes of the local governments within the metropolitan region to regulate that planning and development in a more particular and detailed manner, and with appropriately greater attention to the precise local planning needs of particular localities and communities[.]
Thus, the MRS provides 'a broad general blueprint to guide and coordinate the overall planning and development of the metropolitan region' and leaves it to local planning schemes to 'regulate that planning and development in a more particular and detailed manner'. Furthermore, as the Town submits, the MRS does not contain any development standards or requirements for signs specifically, or for development generally, and does not contain any provisions dealing with land use permissibility. Indeed, as the Town submits:
The broad nature and general nature of the MRS is illustrated by the fact that it does not prohibit any type of development or use whatsoever. To take an extreme example, the MRS permits the possibility of a nuclear waste dump being approved at Elizabeth Quay (and, indeed, on any land in the metropolitan area).
Furthermore, as the Town submits, the MRS 'implicitly contemplates that other written laws will regulate more closely buildings, development and land use'. Thus, cl 10 of the MRS states as follows:
Except as otherwise provided in this Scheme, no development of any land within the metropolitan region shall be commenced or continued without the written approval of the responsible authority in addition to any other permission or approval that may otherwise be required by law.
(Emphasis added)
As indicated earlier, cl 24(2) of the MRS also states, in part, as follows:
Approval under this Part does not exempt the person to whom the approval is granted from the requirement, if any, to obtain permission or approval for development on the land under any other law.
Consequently, the Signs Local Law is not lacking in harmony, lacking in agreement or at variance with the MRS.
Gnech's submission that the Signs Local Law is inconsistent with the development approval granted by the DAP on 2 June 2017 is misconceived, because a development approval is not a 'written law' as that term is defined in s 5 of the Interpretation Act.
In our view, insofar as the Signs Local Law appears to preclude approval of an illuminated sign which exceeds the maximum light intensity prescribed in cl 21.3 of the local law and approval of a horizontal sign which exceeds the maximum superficial area and maximum height prescribed in cl 26.1 and cl 26.2 of the local law, respectively, the Signs Local Law is, in our view, inconsistent with LPS 3. This is because cl 25(2)(h) of LPS 3 states as follows:
Except as otherwise provided in the Scheme, for the purposes of the Scheme the following development does not require the planning approval of local government
…
(h)non-illuminated signage or advertising that complies with the Town's Local Law Relating to Signs or any Local Planning Policy[.]
As indicated earlier, although cl 25(2) of LPS 3 performs precisely the same function as cl 61 of the deemed provisions, namely, providing a comprehensive and exhaustive statement of development for which development approval is not required under LPS 3, cl 61(1)(j) and cl 61(2)(f) of the deemed provisions state that development approval is also not required for 'the carrying out of works of a type identified elsewhere in this Scheme as works that do not require development approval' or for 'use of a type identified elsewhere in this Scheme as use that does not require development approval'. Clause 25(2)(h) of LPS 3 continues to have effect under cl 61(1)(j) and cl 61(2)(f) of the deemed provisions to exempt from the requirement to obtain development approval 'nonilluminated signage and advertising that complies with the Town's Local Law relating to Signs'. This is because this type of development is otherwise not identified as not requiring development approval under cl 61 of the deemed provisions.
The obvious implication from the Scheme not requiring development approval for 'non-illuminated signage or advertising that complies with the Town's Local Law Relating to Signs' is that development approval is required under LPS 3 for illuminated signage or advertising that does not comply with the Signs Local Law (and that there is discretion to approve this type of development under LPS 3). Insofar as the Signs Local Law has the effect that an illuminated sign of the lighting intensity or a horizontal sign of the superficial area and height as proposed in the development application for approval under LPS 3 cannot be approved, it is lacking in harmony, lacking in agreement and at variance with, and therefore inconsistent with, LPS 3. LPS 3 is a 'written law' as defined in s 5 of the Interpretation Act, because it is a 'local … planning scheme' and, therefore, 'subsidiary legislation', as defined in s 5 of the Interpretation Act.
It follows that the Signs Local Law is relevantly 'inconsistent' with LPS 3 and is, therefore, 'inoperative to the extent that it is inconsistent' with LPS 3, under s 3.7 of the LG Act. We accept Gnech's submission that this is a second reason on account of which the granting of the building permit would not be inconsistent with any function of the Town under the Signs Local Law.
The third reason on account of which Gnech submits that the granting of a building permit is not inconsistent with any function of the Town under the Signs Local Law is that it contends that the signs are exempt from the requirement to obtain a licence under cl 7.1.1 and cl 7.1.5 of the Signs Local Law.
As indicated earlier, cl 7.1.1 exempts '[a] sign erected or maintained pursuant to any statute having operation within the State' from the requirement to obtain a licence under the Signs Local Law. Gnech submits that the signs are exempt under this provision, because they are 'proposed to be erected and maintained pursuant to the PD Act, MRS, DAP Regulations and Building Act'.
However, as the Town submits, this exemption 'operates where a statute itself directly authorises or requires a sign to be erected or maintained' (ts 41, 1 May 2018). An example given by the Town in its submissions is that the Commissioner of Main Roads may be authorised by regulations made under s 16(1b) and s 16(1c) of the Main Roads Act 1930 (WA) 'to operate traffic signs and traffic control signals and similar devices, the erection of which is authorised by those regulations' (s 16(1c)). The signs in this case would not be 'erected or maintained pursuant to any statute having operation within the State' simply because they are the subject of development approval granted under the PD Act and a building permit granted under the Building Act.
Gnech also submits that the signs are exempt from the requirement to obtain a licence under the Signs Local Law, because they are each '[a] sign within a building' under cl 7.1.5 of the Signs Local Law. Gnech submits that this is the case, because 'any signage will be generated from within the screens and therefore building'.
However, as the Town submits, '… the signage or the message is clearly on the external surface of the screen, so even if the mechanism which creates [it] is concealed, it doesn't meant that the sign is within the building' (ts 42, 1 May 2018).
Finally, Gnech submits that:
There will be no signage until the screens are turned on, are illuminated and display content. As a result, in any event, there is nothing in the Local Law preventing the construction of the screens as contemplated by the Building Permit application.
We do not accept this submission. As the Town submits, the signs are 'structures designed and intended to be used for only one purpose, namely the display of advertising'. Furthermore, as indicated earlier, the definition of 'illuminated sign' is 'a sign that is capable of being lighted whether from within or without the sign by artificial light provided solely or mainly for that purpose' (emphasis added). The signs are 'illuminated signs' within the meaning of that term in the Signs Local Law, whether they are turned on or off.
It follows from our acceptance of Gnech's first submission and acceptance of part of Gnech's second submission that a building permit would not be refused by the Tribunal under s 22(2) of the Building Act as the granting of a building permit would not be inconsistent with any function of the Town under the Signs Local Law.
Conclusion and Orders
The certified application for a building permit must be refused under s 20(2) of the Building Act, because the applicant has not obtained in relation to the building work each authority under a written law that is prescribed for the purposes of s 20(1)(n) of the Building Act. In particular, reg 18(2)(b) of the Building Regs prescribes, for the purposes of s 20(1)(n) of the Building Act, that if the building work is 'development' as defined in s 4 of the PD Act, 'each approval required under that Act in relation to the work' (emphasis added). Although development approval under the MRS in relation to the proposed building work has been obtained, development approval under LPS 3, which is also required in relation to the proposed building work, has not been obtained. The application for a building permit must therefore be refused.
For these reasons we make the following orders:
1.The application for review is dismissed.
2.The decision of the Town of Claremont made on 18 December 2017 to refuse to grant a building permit for building work at No. 58 Bay View Terrace, Claremont is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D PARRY
14 AUGUST 2018
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