Health Resorts Of Australasia Pty Ltd and Western Australian Planning Commission
[2007] WASAT 60
•7 MARCH 2007
HEALTH RESORTS OF AUSTRALASIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 60
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 60 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:401/2006 | 21 FEBRUARY 2007 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 6/03/07 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary questions answered Conclusion that no approval under Peel Region Scheme necessary | ||
| B | |||
| PDF Version |
| Parties: | HEALTH RESORTS OF AUSTRALASIA PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Planning Coastal development height Whether approval required under Peel Region Scheme Approval by local government Approval by Western Australian Planning Commission lacking jurisdiction Change of Scheme to catch proposed development Subsequent application for review of decision made without jurisdiction Whether open to Tribunal to deal with matter Effect of amendment to Peel Region Scheme Whether accrued right unaffected by amendment Definition of "storey" Words and Phrases "storey" "mezzanine" |
Legislation: | City of Mandurah Town Planning Scheme No 3 Interpretation Act 1984 (WA), s 37, s 37(1)(b) Peel Region Scheme, cl 18, cl 19, cl 20, cl 21 Planning and Development Act 2005 (WA), s 33 Residential Design Codes of Western Australia (2002), Pt 3 State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 29 |
Case References: | Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557 Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88 Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 Esber v Commonwealth of Australia (1992) 174 CLR 430 Mathieson v Burton (1971) 124 CLR 1 Maxwell v Murphy (1957) 96 CLR 261 Moray County Council v Maclean [1962] SLT 236; (1962) SC 601 Re Adams and Tax Agents' Board (1976) 12 ALR 239 Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 219 Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 Western Australian Planning Commission and Furfaro [2007] WASAT 24 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261 |
Orders | There is a declaration that the applicant does not require approval for the proposed development under cl 18 of the Peel Region Scheme. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HEALTH RESORTS OF AUSTRALASIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 60 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 21 FEBRUARY 2007 DELIVERED : 7 MARCH 2007 FILE NO/S : DR 401 of 2006 BETWEEN : HEALTH RESORTS OF AUSTRALASIA PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Planning Coastal development height Whether approval required under Peel Region Scheme Approval by local government Approval by Western Australian Planning Commission lacking jurisdiction Change of Scheme to catch proposed development Subsequent application for review of decision made without jurisdiction Whether open to Tribunal to deal with matter Effect of amendment to Peel Region Scheme Whether accrued right unaffected by amendment Definition of "storey"
Words and Phrases "storey" "mezzanine"
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Legislation:
City of Mandurah Town Planning Scheme No 3
Interpretation Act 1984 (WA), s 37, s 37(1)(b)
Peel Region Scheme, cl 18, cl 19, cl 20, cl 21
Planning and Development Act 2005 (WA), s 33
Residential Design Codes of Western Australia (2002), Pt 3
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 29
Result:
Preliminary questions answered Conclusion that no approval under Peel Region Scheme necessary
Category: B
Representation:
Counsel:
Applicant : Mr B Campbell
Respondent : Mr S Murphy
Solicitors:
Applicant : Mony De Kerloy
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557
Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88
Chief Adjudication Officer v Maguire [1999] 1 WLR 1778
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Esber v Commonwealth of Australia (1992) 174 CLR 430
Mathieson v Burton (1971) 124 CLR 1
Maxwell v Murphy (1957) 96 CLR 261
Moray County Council v Maclean [1962] SLT 236; (1962) SC 601
Re Adams and Tax Agents' Board (1976) 12 ALR 239
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Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 219
Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379
Western Australian Planning Commission and Furfaro [2007] WASAT 24
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261
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Summary of Tribunal's decision
1 In July 2006, Health Resorts of Australasia Pty Ltd received approval from the City of Mandurah to develop a motel and accommodation complex in Halls Head. The City wrongly advised the applicant that it also needed approval from the Western Australian Planning Commission under the Peel Region Scheme. The applicant did not consider that that approval was necessary, but out of caution made an application to the WAPC. That application was granted subject to a condition that the building be reduced by one storey.
2 The applicant sought a review of that decision by the Tribunal. It argued that no approval from the WAPC was necessary. Shortly before the proceedings were instituted, but after making its decision, the WAPC, published a resolution that had the effect of requiring that its approval be obtained under the PRS for developments of the kind proposed by the applicant. The applicant contended that the new resolution could not be applied to its proposed development, and that the WAPC's decision to give conditional approval was of no effect.
3 The parties formulated four preliminary questions concerning the requirement to obtain the WAPC's approval and the application of the PRS. The Tribunal examined those questions and concluded that the approval of the WAPC, and in turn the Tribunal, was not required under the PRS.
Introduction
4 The parties have sought to have four questions dealt with as preliminary issues. To understand the context of the questions, it is necessary to examine the background to the application. It concerns the proposed redevelopment of the applicant's property known as Blue Bay Motel on Lot 701 (No 11) Oversby Street, Halls Head, WA.
5 The applicant submitted an application for approval under the City of Mandurah Town Planning Scheme No 3 (TPS 3) in November 2004. The existing development comprises a single storey motel offering short term accommodation, and licensed caravan parking bays. The site is located within the northern portion of Halls Head and is located approximately 200 metres east of the Indian Ocean. The proposal consists of a basement level car park, ground floor comprising motel rooms, caretakers room, reception, restaurant, relaxation centre and amenities, three floors of motel
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- rooms, and penthouse suites and associated "mezzanine" areas on what the application described as the "fifth and sixth floor".
6 On 27 July 2005, the City of Mandurah (the City), by its delegated officer, gave an approval to commence development in accordance with the proposal subject to various conditions.
7 The subject site comes within the area the subject of the Peel Region Scheme (PRS). Clause 18 of the PRS provides:
"18. Requirement for approval to commence development
Subject to clauses 19 and 20 a person must not commence or carry out –
(a) development on reserved land; or
(b) development of a kind or class specified in a resolution made by the Commission under clause 21,
unless that person has first applied for and obtained the planning approval of the Commission under Part 7.
[Note: Planning approval for development in a regional planning control area must be obtained under section 37C of the Commission Act.]"
9 Clause 21 of the PRS empowers the Western Australian Planning Commission (the Commission), by resolution, to require development on land zoned under the PRS to have planning approval from the Commission before it is commenced or carried on. On 2 August 2005, a resolution of the Commission under cl 21 of the PRS was published in the Government Gazette. The resolution, designated Notice of Resolution Clause 21(No 2) – Coastal Buildings Above Specified Heights (Resolution No 2) read:
"The Western Australian Planning Commission (the Commission) acting pursuant to clause 21 of the Peel Region Scheme (PRS) has resolved to –
Require the local governments of the City of Mandurah and Shire of Waroona to refer for determination by the
- Commission all applications for approval for any development for residential (including short stay residential), office or hotel purposes, or any combination of these uses, exceeding five storeys and 21 metres in height (or exceeding eight storeys and 32 metres in height where a height of eight storeys or more is permissible under the local government scheme) on land within 300 metres of the horizontal setback datum of the coast as defined in Statement of Planning Policy No. 2.6 and shown on WAPC Plan No. 0.0729."
10 Some time prior to February 2006, the City of Mandurah requested that the applicant make a second application for approval for redevelopment of the motel, which it did on 13 February 2006. The reasons for that request were not apparent on the materials before me, but I was advised by counsel (without objection) that the City wanted some minor amendments to the plans and wished to have its Council consider the application given a level of public interest in the proposed development.
11 Following an enquiry from the City, the Department of Planning and Infrastructure wrote to the City on 30 June 2006 advising that the proposed development would need to be referred to the Commission for determination. On 18 July 2006 the Council of the City resolved to approve the application of 13 February 2006 subject to a number of conditions. A footnote to the conditions advised that:
"The proposed development is subject to the State Government Development Control Policy 6.1 Country Coastal Planning Policy and, under the provisions of the Peel Region Scheme, the development application must also be assessed by the Western Australian Planning Commission. Approval for the proposed development from that authority must be received prior to a building licence being issued."
12 The application was referred to the Commission by the City on 25 July 2006.
13 On 19 October 2006, the solicitors for the applicant made written submissions to the Commission concerning its consideration of the matter. The solicitors contended that the use of the conjunctive "and" in Resolution No 2 required that the proposed building must exceed both 21 metres in height, and five storeys, in order for the requirement for
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- approval to arise. There is no issue in these proceedings that the proposed building does not exceed 21 metres in height, however measured. The solicitors also submitted that the building did not, in any event, exceed five storeys because neither the ground floor, nor the mezzanine floor, should be considered to be "storeys" for the purposes of the resolution. It was therefore submitted that the Commission should decline to deal with the application as no approval was required.
14 On 20 October 2006, the Peel Region Planning Committee, on behalf of the Commission, decided to exercise jurisdiction over the application, considered it, and approved it subject to a condition requiring the deletion of one storey. On 27 October 2006 the Commission wrote to the applicant enclosing a form of approval setting out the additional condition for reduction in the number of storeys.
15 On 3 November 2006, the Commission published in the Government Gazette a further resolution pursuant to cl 21; Resolution No 3. That resolution reads:
"The Western Australian Planning Commission (the Commission) acting pursuant to clause 21 of the Peel Region Scheme (PRS) to
1. Revoke resolution No. 2 made by the Commission and published in the Government Gazette of 2 August 2005.
2. Require the local governments of the City of Mandurah and Shire of Waroona to refer for determination by the Commission all applications for approval for any development for residential (including short stay residential), car-parking, retail, office or hotel purposes, or any combination of these uses, exceeding five storeys or 21 metres in height (or both) (or exceeding eight storeys or 32 metres in height (or both) where a height of eight storeys or more is permissible under the local government scheme) on land within 300 metres of the horizontal setback datum of the coast as defined in State Planning Policy No. 2.6 and described on WAPC Plan No. 0.0729."
16 The substantive difference between Resolution No 2 and Resolution No 3 for present purposes is the insertion of the disjunctive "or" in place of "and". The only other difference between the two resolutions (which is not material for present purposes) is that the later
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- resolution extends the uses referred to in relation to buildings coming within the requirement.
17 On 9 November 2006, the applicant instituted an application for a review of the Commission's decision. In the application, the applicant asserted that the Commission had acted beyond its jurisdiction in considering the application and purporting to impose a conditional approval.
18 It is against that background that the parties raise four matters for determination as preliminary issues. Those questions are:
1. Does the Tribunal have jurisdiction to deal with an application alleging that the original decision-maker acted without power?
2. Did the respondent have power to deal with the original application pursuant to Resolution No. 2 published in the Western Australian Government Gazette on 2 August 2005 given that the development does not exceed 21 metres in height?
3. What, if any, is the impact on the applicant's application of the gazettal of Resolution No. 3 published in the Western Australian Government Gazette on 3 November 2006?
4. What is the relevant definition of "storey" for the purposes of the application?
Does the Tribunal have jurisdiction to deal with an application alleging that the original decision-maker acted without power?
19 This question was posed as a preliminary issue as a result of a comment which I made to the parties at the initial directions hearing shortly after the application was lodged. Having considered the issue, the parties, agreed as to the position.
20 In Re Adams and Tax Agents' Board (1976) 12 ALR 239 at 241, Brennan J said that although a Tribunal with limited authority cannot judicially pronounce upon the limits of its jurisdiction, "its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the
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- limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect".
21 In an application in the Tribunal's review jurisdiction, the Tribunal has the functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision – State Administrative Tribunal Act 2004 (WA) (SAT Act) s 29. Where a party raises an issue as to whether, under the enabling legislation, the original decision-maker had any authority to make the relevant decision, the Tribunal must necessarily decide, in the sense of forming an opinion, the question of whether or nor any authority to make the decision exists. As the parties agreed, that proposition is supported by the conclusions expressed in Re Carey; Ex parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 219, per Martin CJ at [111-115].
Did the respondent have power to deal with the original application pursuant to Resolution No. 2 published in the Western Australian Government Gazette on 2 August 2005 given that the development does not exceed 21 metres in height?
22 The parties were also in agreement that the answer to this question should be "no". The respondent did not seek to argue that the proper construction of Resolution No 2 was that the word "and", where it appears in the phrase "exceeding five storeys and 21 metres", should be read disjunctively. The Commission therefore conceded that, at the time it made the decision under review, it had no jurisdiction to make that decision. It contends, however, that the absence of jurisdiction by the original decision-maker does not deprive the Tribunal of jurisdiction to exercise its review jurisdiction. The respondent relies upon the decision of the Full Court of the Federal Court in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261 at 268-9, where Finn, Mansfield and Gyles JJ said:
"In particular, there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it (see s 347) where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of
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- decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal's decision as to the existence of a valid delegate's decision (a jurisdictional fact on the appellant's argument) to review by a Court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the regulations (s 349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (AAT): see AAT Act, s 43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see eg Clements v Independent Indigenous Advisory Committee[2003] FCAFC 143 at [38] — [39].
That approach accords with a line of decisions of this Court beginning with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (Lawlor). In that case the Court had to decide whether the AAT had jurisdiction to review the purported revocation of a licence where (the Court held) there was no statutory power to revoke the licence. Bowen CJ at 314 stated that 'decision' in s 25 of the AAT Act refers to 'a decision in fact made, regardless of whether or not it is a legally effective decision'. Smithers J at 337 held that where a decision is made beyond power, even though the legal effect the decision maker sought to achieve is denied, the jurisdiction of a court or appeal tribunal to review the decision
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- is not removed. The jurisdiction of the court or tribunal depends upon the law creating the right to review and conferring jurisdiction. His Honour further pointed out that a 'decision', as used in the relevant statute, relating to the right to apply for review, referred to a decision 'made in fact' and not the legal effect the decision may have had. Although Deane J was in dissent in the result, his Honour recognised at 342 – 343 that the AAT's powers of review would include a decision resulting from a wrong assessment of the content of a power or a mistaken determination that conditions precedent have or have not been fulfilled."
23 Although Zubair involved a failure to observe a procedural precondition to the making of a decision, rather than, as in this case, a decision where the subject matter of the decision was outside the Commission's jurisdiction, the rationale expressed is equally applicable to this Tribunal's review jurisdiction. Of course, if Resolution No 2 were the basis of the review by this Tribunal, then the outcome of the review proceedings would necessarily be a conclusion that the Tribunal standing in the shoes of the decision-maker, has no jurisdiction to consider the application and that no requirement for approval under the PRS exists. That conclusion would recognise the limit on power identified by the Full Court in Zubair.
What, if any, is the impact on the applicant's application of the gazettal of Resolution No. 3 published in the Western Australian Government Gazette on 3 November 2006?
24 Section 27 of the SAT Act provides that a review by the Tribunal of a reviewable decision is by way of a hearing de novo, and may involve consideration of new material whether or not it existed at the time the decision was made. Section 27(2) identifies the purpose of the review as being "to produce the correct and preferable decision at the time of the decision upon the review". The applicant argued that the expression "at the time of the decision upon the review" should be construed as meaning the time at which the reviewable decision was made by the original decision-maker. That construction offends the ordinary meaning of the words. The obligation of the Tribunal is to produce the correct and preferable decision at the time of the Tribunal's decision.
25 It follows that Resolution No 3 is a matter to which the Tribunal should have regard in considering its jurisdiction to consider the merits of the application.
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26 The applicant contends, however, that the repeal of Resolution No 2, and its replacement with Resolution No 3, cannot have the effect of depriving the applicant of an accrued right resulting from the approval obtained under TPS 3 by the local authority. The applicant relies upon s 37 of the Interpretation Act 1984 (WA) (Interpretation Act) which relevantly provides:
"37. General savings on repeal
(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears ¾
…
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
…
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
28 In its terms, Resolution No 3 revokes Resolution No 2. Although in its written submissions, the respondent raised an issue as to whether or not there was a "repeal" for the purposes of s 37, it did not pursue that
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- contention at the hearing, but rather conceded that the effect of the resolution was to repeal the earlier resolution. Accordingly, the framework for the application of s 37 is established. The question is whether some right or privilege enjoyed by the applicant was preserved by s 37, so as to absolve the applicant from the necessity to obtain approval for the proposed development under the PRS.
29 As was observed by Steytler P in Barminco Investments Pty Ltd v O'Brien [2006] WASCA 88:
"The question whether a right has or has not been 'acquired' or has or has not 'accrued' for the purposes of s 37 of the Interpretation Act involves a close analysis of the right itself and of the basis upon which the Courts have, until now, approached provisions such as s 37."
30 In its written submissions, the applicant defined the right acquired as "a right to a development approval in terms approved by the City of Mandurah on 18 July 2006 and free of any need for WAPC approval". In responsive submissions subsequently filed, the applicant identified the issue to be determined as "whether the applicant had an accrued right to have a building licence issued by the City of Mandurah in accordance with Resolution No 2 and to commence work". It contended that the applicant's right arose upon the submission of the development application and the grant of planning approval by the City.
31 In my view, it is inaccurate to describe the applicant as having "an accrued right to have a building licence issued". A building licence is a separate statutory requirement prior to the commencement of building work. As the notes to the planning approval identify, there are a number of requirements which the City would require prior to issue of the building licence. Those requirements arise by virtue of various regulatory requirements in relation to building work. The granting of planning approval by the City is an independent process from the grant of a building licence, although both are prerequisites to the commencement of construction.
32 In my view, the original formulation of the right is closer to an accurate description of the effect of the City's development approval. It is not, however, accurate to say that the applicant "acquired a right to a development approval" by the grant of that approval. What the applicant did, in my view, acquire, however, is a right to develop its land on the
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- conditions approved by the City and free of any need for WAPC approval under the PRS.
33 In Barminco, Steytler P, with whom Wheeler JA agreed, referred the apparent approval to the propositions extracted by Lord Hunter in Moray County Council v Maclean [1962] SLT 236; (1962) SC 601 at 606 namely:
"a) '[T]he mere abstract right to take advantage of a statutory enactment if "right" it can properly be called, is not a "right acquired" or a 'right accrued' within the meaning of s 38(2)(c) of the Act of 1889'.
(b) '[E]ven if a person has taken steps to put statutory machinery in motion, the statutory proceedings may only by the date of repeal have reached the state when he has a hope or expectation of acquiring a right. In such a case it almost goes without saying that there is no right "acquired" or "accrued'".
(c) '[W]here statutory machinery has been set in motion and the statute is afterwards repealed, there may be a right "acquired" or "accrued" under the statute, although at the date of repeal further steps are still necessary to prove that the right did in fact exist at the date of repeal and even to prove the measure of the obligation incurred.'
(d) '[A] right can, at any rate in certain circumstances, be a "right acquired" although it may at the date of repeal still be of a contingent nature".'"
34 Steytler P also made reference to the lead judgment by Simon Brown LJ in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 at 1787 where he said:
"True, as Lord Evershed observed in the Free Lanka case, at p 552: 'The distinction between what is and what is not "a right" must often be one of great fineness'. But there are now to be found in the authorities helpful touchstones by which to reach the correct answer. A mere hope or expectation of acquiring a right is insufficient. An entitlement, however, even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right."
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35 The respondent submits that the applicant must point to facts or events prior to the change in law which conferred the right concerned. A number of examples were cited, such as the passage of time after a course of action arises (see Maxwell v Murphy (1957) 96 CLR 261 at 267), an injury (as in Barminco and Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1), the death of a tenant (Mathieson v Burton (1971) 124 CLR 1), the compulsory acquisition of land (for example Western Australian Planning Commission and Furfaro [2007] WASAT 24 at [27]), the commission of an offence triggering liability to penalty, and the making of invalid orders (Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557). The cases make clear that a mere hope or expectation of acquiring a right is insufficient, and generally it is necessary to identify some triggering event which elevate the expectation to an acquired or accrued right is necessary.
36 In this case, the grant of the planning approval by the City was the triggering event. At the time of that grant, planning approvals in the Peel region were governed by TPS 3 and the PRS. The applicant's land was zoned under the PRS, as it was under TPS 3. The two schemes together constituted the planning regime applicable to development. At the time of the grant of approval by the City, the applicant was entitled to develop in accordance with that approval contingent only upon the independent requirement to obtain a building licence. Whether that entitlement is described as a right or privilege, or as a "status or capacity", it was, in my view, preserved by s 37 of the Interpretation Act upon the gazettal of Resolution No 3.
37 Alternatively, the applicant is entitled to the benefit of s 37(1)(b). The previous operation of the enactment repealed (that is, Resolution No 2 read with cl 18 of the PRS) was (according to the parties' agreed position) to require approval only of buildings which exceeded both criteria. Although the PRS regulated development within the Scheme area, including this development, it operated so as to leave planning approvals that were not the subject of a cl 21 resolution in the hands of the local government. When planning approval was granted by the local government, the requirements of the PRS were met.
38 The respondent argues that cl 18 of the PRS manifests a contrary intention. That is because, it is submitted, cl 18 prohibits the commencement or carrying out of development of a kind specified in a resolution under cl 21. It is argued that when Resolution No 3 is read with cl 18, an intention can be discerned that regardless of any accrued
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- "right" no development of the description contained in Resolution No 3 could be commenced after gazettal of Resolution No 3. That submission calls for a close analysis of the terms of Resolution No 3.
39 The resolution requires the identified local governments to refer "all applications for approval for any development" that meet the description set out. It does not, in its terms, require the referral to the Commission of applications which it has dealt with and approved prior to the gazettal date. The prohibition in cl 18 is not only directed to commencement of development, but also the carrying out of development. The respondent suggested that, even if a development (sought by Resolution No 3 but not Resolution No 2) had been approved by the City of Mandurah, and had been commenced but not completed at the time of gazettal of Resolution No 3, cl 18 would prohibit the continuation of that development until approval had been obtained from the Commission under the PRS. Notwithstanding that contention, counsel for the respondent conceded that, to avoid absurd, or at least impractical consequences, Resolution No 3 and the PRS could be construed so that approval would not be required under the PRS for a development which had commenced, but was not completed, before gazettal of Resolution No 3 (where it was not already caught by Resolution No 2). However, he contended that since this development had not commenced, that was an issue that the Tribunal did not need to address.
40 In my view, no contrary intention emerges from the PRS or Resolution No 3. If a contrary intention is to be found, then it is in the "repealing" instrument that that intention would normally appear. As observed, the terms of Resolution No 3 contemplate that applications coming to the City of Mandurah or those not yet determined by it, must be referred to the Commission. At the time of gazettal of Resolution No 3, the City of Mandurah had no further planning function to perform in relation to the applicant's development. A contrary intention cannot be discerned from Resolution No 3.
41 Nor can a contrary intention be discerned from the PRS. The proscription in cl 18 is dependent upon the terms of the cl 21 resolution. If, as it is, the reach of that resolution is only to require referral of applications not determined by the City of Mandurah before the gazettal date, cl 18 has no operation in relation to developments approved earlier. That the PRS was intended to operate in that manner is illustrated by cl 27 which provides:
"27. Existing approvals
- Development –
(a) that was lawfully being carried out in a local government district in the region immediately before the Scheme came into effect; or
(b) in respect of which all necessary approvals under the local government schemes applying to that district were in force immediately before the Scheme came into effect,
may be lawfully carried out as if this Scheme had not come into effect."
42 In Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379, Barker J following Esber v Commonwealth of Australia (1992) 174 CLR 430, held that, where an application for review had been commenced prior to an amendment to legislation that altered the law as to the approach to be taken on the review, the applicant was entitled to have the review determined on the basis of the law as it stood at the time the application was made. In this case, Resolution No 3 was gazetted prior to the date on which the application for review was made. However the right enjoyed by the applicant in this case is not a right to have the review carried out under a particular legislative regime. Rather it was a right to proceed with the approved development without WAPC approval under the PRS. It is immaterial that these proceedings were not commenced until after the repeal of Resolution No 2, because the preserved right existed independently of the application for review of the WAPC decision that had been made without jurisdiction.
What is the relevant definition of "storey" for the purposes of the application?
43 In view of the conclusion reached as to issue 3, it is not necessary to answer the fourth question. However, the parties requested that I deal with all questions and it is appropriate to do so since the matter was fully argued and should I be found to have answered question 3 wrongly, it would be necessary to answer question 4. Accordingly it is appropriate that I address the final question.
44 Approval under cl 18 as a result of Resolution No 3 is only necessary if the proposed construction exceeds five "storeys". There is no dispute between the parties that the first, second, third and fourth levels above the ground floor of the building constitute "storeys". The Commission accepts that the below ground parking area, being entirely beneath the "as
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- constructed" ground level, should not be considered a "storey" for the purposes of Resolution No 3. The applicant contends, however, that neither the ground floor, nor what it describes as the "mezzanine" floor constitute a storey for the relevant purpose. The word "storey" is not expressly defined in Resolution No 3, the PRS or the PD Act.
45 There are several definitions of "storey" in other legislative instruments. The Building Codes of Australia (BCA) defines storey as follows:
"Storey means the space within a building which is situated between one floor level and the floor level next above or if there is not floor above the ceiling or roof above but not:
a) a space that contains only:
I. a lift shaft, stairway or meter room; or
II. a bathroom, shower room, laundry, water closet or sanitary compartment; or
III. accommodation intended for not more than 3 vehicles; or
IV. a combination of the above; or
b) a mezzanine."
46 The applicant also observes that the City of Mandurah Local Planning Policy No 12 entitled "Development Height Policy" provides that "use of the room space as a room(s) shall not be considered to constitute 'a storey' providing that height standards applicable to the site are not exceeded".
47 The term storey is defined in s 7 of the State Planning Policy 2.6 "State Coastal Planning Policy" (SPP 2.6) to mean:
"In this Policy, unless the context otherwise requires:
…
'storey' when used in relation to a development that if for residential purposes has the same meaning as in the Residential Design Codes, when used in relation to other development means a space within a building which is situated between one
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- floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but not –
(a) a space that contains only-
(i) a lift shaft, stairway or meter room; or
II. a bathroom, shower room, laundry, water closet or other sanitary compartment; or
III. accommodation intended for not more than 3 vehicles; or
IV. a combination of the above; or
(b) a mezzanine."
48 The definition contained in SPP 2.6 raises the question of whether or not a development is one which is for "residential purposes", in which case the definition the Residential Design Codes of Western Australia (2002) (the Codes) applies, or is some other development. The definition of storey in the Codes is "that part of a building between floor levels. If there is no floor above, it is the part between the floor level and the ceiling".
49 The effective difference between the Codes' definition and the definitions under both the BCA and SPP 2.6 in relation to "other developments" is that the latter two exclude a "mezzanine" from being a storey.
50 I am of the view that, whichever definition is applied, the proposed development exceeds five storeys.
51 I accept the respondent's submission that there are strong purposive and contextual reasons for applying the definition contained in SPP 2.6 as the appropriate definition for the purposes of Resolution No 3. Both Resolution No 3, and SPP 2.6, are designed to implement government strategies and plans for the coastal regions of Western Australia. The definition of storey in SPP 2.6 was inserted in December 2006 at the same time as the section entitled "Policy Measures" was amended to include policy in relation to building height limits. That amendment inserted a height limit of a maximum of five storeys (and not exceeding 21 metres) in height. As the papers lodged with the Tribunal demonstrate, both the height measures contained in SPP 2.6, and in the PRS through Resolution No 3, are steps taken in the implementation of the government policy in
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- relation to coastal development. It is for that reason, and because the definition under SPP 2.6 accords with the ordinary and the natural meaning of the word "storey", that I consider that definition to be the best guide for the purposes of construction of Resolution No 3.
52 As I have said, however, regardless of the definition, in my view the proposed development exceeds five storeys. There is no dispute that the ground floor will sit above the as constructed ground level. Nor is there a dispute that the ground floor will be partially below what is described as the existing or "natural" ground level. There is nothing in any of the definitions to which I have been referred which suggests that only floors above ground level should be considered to be "storeys". Natural ground level may be significant in the context of measuring building height, as for example, in Pt 3 Element 7 of the Codes. There is, however, no issue in relation to the height of the proposed development which might call into play issues as to how that height is measured. In my view, there is no basis for excluding the ground floor of the proposed development from the calculation as to the number of storeys for the purposes of Resolution No 3.
53 Whether the proposed development exceeds five storeys depends upon whether the level of "mezzanine" floors is also a storey. What is described as the "mezzanine" level comprises the upper levels of five of the penthouse units, the entrances to which are located on level 4. Each has an internal staircase leading from the lower level of the units. Four of the five units have a kitchen, dining and living area at the mezzanine level with sleeping accommodation and bathrooms at the lower level. The fifth unit has its kitchen, dining and living area at the lower level and three rooms comprising a bedroom, sitting area and bathroom, at the upper level. The mezzanine levels do not sit immediately above the lower levels of their respective units, but are placed partially above those units, and partially above a corridor and other single level penthouse units on level 4. It is apparent from the plans that the mezzanine levels are each self contained spaces which do not, apart from within the small staircase area, afford any view into or form any part of, the rooms on the lower level. I see no basis for applying the provision of the City's Development Height Policy to define "storey" for the purposes of the PRS, but in any event the upper levels are not merely a use of roof space. The level has its own roof and its floor provides the ceiling to part of the level below. The fact that the upper level occupies a smaller footprint than level 4 does not make it any less a "storey".
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54 My attention was drawn by the respondent to two dictionary meanings of the "mezzanine". They were:
1. "a low storey between two others in a building, usually between the ground and first floors; (also) a room, apartment, etc on this storey." Oxford English Dictionary (2nd ed), 1989
2. "noun; a low storey between two other storeys of greater height, especially when the low storey and the one beneath it form part of one composition; entresol … " Macquarie Dictionary (4th ed), 2005.
55 Although SPP 2.6 uses the word "mezzanine", it contains no definition. The BCA defines mezzanine as meaning "an intermediate floor within a room".
56 In my view, the upper levels of the penthouse units as shown in Figure 10 of the approved plans, do not meet the description of a "mezzanine". They are entirely self contained rooms effectively placed above the ceiling height of the lower levels of the apartments. In ordinary parlance, the five apartments with the upper levels can be described as "two storey apartments". Neither of the dictionary definitions, nor the BCA definition, describe the upper level of the proposed development. In my view, what is described as "mezzanine" is simply a space within a building situated between one floor level and the roof above. It follows that if Resolution No 3 were applicable to the development, then approval by the Commission would be necessary by reason of the fact that the proposal exceeds five storeys.
Conclusions
57 The answer to the question "Does the Tribunal have jurisdiction to deal with an application alleging that the original decision-maker acted without power?" is "Yes".
58 The answer to the question "Did the respondent have power to deal with the original application pursuant to Resolution No. 2 published in the Western Australian Government Gazette on 2 August 2005 given that the development does not exceed 21 metres in height?" is "No".
59 The answer to the question "What, if any, is the impact on the applicant's application of the gazettal of Resolution No. 3 published in the Western Australian Government Gazette on 3 November 2006?" is that
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- Resolution No 3 does not require the applicant to obtain approval under cl 18 of the Peel Region Scheme for its proposed development.
60 The answer to the question "What is the relevant definition of 'storey' for the purposes of the application?" is that whatever definition is applied, the applicant's proposed development exceeds five storeys.
Orders
61 There is a declaration that the applicant does not require approval for the proposed development under cl 18 of the Peel Region Scheme.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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