JW SIVEWRIGHT, JT SIVEWRIGHT, RT TREWARN, GD WALLIS, JL McEWEN AS TRUSTEES FOR THE MUNDARING GOSPEL TRUST (ABN 42 733 268 514) and SHIRE OF MUNDARING
[2014] WASAT 44
•8 APRIL 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: JW SIVEWRIGHT, JT SIVEWRIGHT, RT TREWARN, GD WALLIS, JL McEWEN AS TRUSTEES FOR THE MUNDARING GOSPEL TRUST (ABN 42 733 268 514) and SHIRE OF MUNDARING [2014] WASAT 44
MEMBER: MR P McNAB (SENIOR MEMBER)
MR R EASTON (SENIOR SESSIONAL MEMBER)
MR B CALLOW (SESSIONAL MEMBER)
HEARD: 4, 5, 6 AND 7 NOVEMBER 2013 AND 7 AND 10 JANUARY 2014
DELIVERED : 8 APRIL 2014
FILE NO/S: DR 157 of 2013
BETWEEN: JW SIVEWRIGHT, JT SIVEWRIGHT, RT TREWARN, GD WALLIS, JL McEWEN AS TRUSTEES FOR THE MUNDARING GOSPEL TRUST (ABN 42 733 268 514)
Applicants
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Town planning - Development application - Place of public worship - New town planning scheme proposed - Rural Landscape Living zone - Rural Residential replacement zone - Local government seeking to prohibit places of public worship in rural living areas - Whether particular place of public worship would adversely affect rural living amenity - Changes imminent to planning framework - Minister rejecting total prohibition on places of public worship - Final Ministerial decision on new scheme made compliance by applicants with final draft of scheme practically impossible - Decisions by government coming late in hearing process - Whether final draft of new scheme a seriouslyentertained planning proposal - Weight to be accorded to Ministerial decision on final draft - Whether Tribunal should refuse development where local government and Minister's decisions made noncompliance impossible - Final draft not inconsistent with proper planning principle - New scheme would maintain neighbourhood and locality character - Significant weight was to be afforded to final draft scheme - Tribunal indicating refusal of application necessary because of fundamental inconsistency with final draft of scheme - New scheme enacted shortly after Tribunal's decision - Observations on religious freedom in planning cases
Legislation:
Draft Local Planning Scheme No 4, cl 5.7.32.3
Planning and Development Act 2005 (WA), s 252(1)
Shire of Mundaring Town Planning Scheme No 3, cl 4.17
State Administrative Tribunal Act 2004 (WA), s 46(1)
Result:
Application for review unsuccessful
Summary of Tribunal's decision:
The applicants were the trustees of the Plymouth Brethren. They had purchased land in the Shire of Mundaring's Rural Landscape Living zone to erect a large gospel hall with associated facilities. They had outgrown their current accommodation in the Shire of Mundaring. Their application for planning approval was refused on various amenity grounds and by reason of an alleged incompatibility of the proposed development with the objectives of the zone.
Had the proceeding progressed to a final merits review (which it did not), the Tribunal might have had to look at to what extent, if any, the planning framework may have required, in effect, reasonable accommodation or adjustment, having regard to the recognised freedoms of religious practice in our community.
In addition, the Shire of Mundaring was proposing a new town planning scheme which would prohibit a place of public worship altogether in this zone (or its replacement zone). The Shire of Mundaring alleged that it would be contrary to orderly and proper planning to approve the applicants' proposals in the face of the draft prohibition on places of public worship. The new scheme required Ministerial approval.
The Tribunal proceeded to hear the matter on its merits. At one point it became clear that the Minister had refused to approve a total prohibition on places of public worship. However, at the end of the hearing process, after adjournments to accommodate the same, advice was received of the Minister's final position. Although there would not be any total prohibition on places of public worship, the final form of the relevant clause in the draft scheme made the applicants' present application incapable of approval if the new scheme came into law.
By early January 2014, the enactment of the new scheme was final, certain and imminent, and perhaps only a few days away. The Tribunal held an urgent special hearing. The Tribunal examined the authorities from other jurisdictions and concluded that, in such circumstances, not only was the final draft of the scheme a seriously-entertained planning proposal, but that very significant weight should be attached to it. This was especially so given the status of the final decision-maker; the combined wishes of the two regulators - local and State (that is, the Shire of Mundaring and the Minister); the acceptable planning rationale for the new scheme's provisions; and, importantly, the fact that preservation of neighbourhood (or local) character was intended.
In these circumstances, the Tribunal declined to assess the matter further on its merits and indicated that dismissal of the review was warranted, given the fundamental incompatibility between the final draft of the scheme which was shortly to be enacted and the applicants' proposal. Subsequently, the applicants withdrew their application in the Tribunal.
Shortly afterwards, the Shire of Mundaring's new town planning scheme was gazetted and enacted into law.
Category: B
Representation:
Counsel:
Applicants: Mr C Slarke (November 2013) and Mr D McLeod (January 2014)
Respondent: Mr P McGowan and Mr T Houweling
Solicitors:
Applicants: McLeods
Respondent: Cornerstone Legal
Case(s) referred to in decision(s):
Haladhar Holdings Pty Ltd and Shire of Kalamunda [2012] WASAT 143
Mifsud v Shire of Melton [2001] VCAT 1783
Miller v Shire of Waroona [2009] WASAT 238
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154; (2003) 127 LGERA 303
Nicholls v Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, (2003) 129 LGERA 195
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Mr T Sivewright and others on behalf of the Mundaring Gospel Trust (applicants), pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for a review of a decision of the Shire of Mundaring (Shire, Council or respondent) made on 23 April 2013 to refuse development approval for a new place of worship at No 1960 (Lot 1292) Coppin Road, Parkerville (site).
The application for review raises important issues concerning the compatibility of developing land for a place of worship in land zoned Rural Landscape Living (or, later, land zoned Rural Residential). This issue was compounded because a critical component of the planning framework (that is, to what extent, or even whether, such development was permissible in such zones) was in a state of flux.
Ultimately, as will appear from the reasons below, it was not possible in any event for the proposed development to be approved because of changes in the relevant planning framework.
Background to the proposal
The applicants are trustees for the Plymouth Brethren. The Plymouth Brethren are, the evidence suggests, an established part of the Mundaring community. In their statement of issues, facts and contentions (SIFC) at paragraphs 8 and 7 respectively, the applicants provided the following background information:
The practice of religion by the Plymouth Brethren involves frequent exchanges of visits by members of congregations, both locally ie Northam, Albany, Perth Melville and Armadale (once a month), and internationally (every two to three years) …
The Place of Worship will be used to accommodate approximately 150 people for ordinary weekly Sunday services … Once per month, up to 500 people may attend on an exchange Sunday, and up to 800 persons may attend on international exchange once every two to three years.
These assertions were not contested by the respondent.
During the hearing, the applicants explained that although the proposed size of the building and the associated infrastructure (such as car parking) is well in excess of what is required for normal weekly services, it is essential to provide for the monthly and biannual exchanges which are central to the practice of their religion.
The applicants further explained, at paragraph 9 of their SIFC, that:
The Plymouth Brethren have outgrown [their current place of worship in Stevens Road, Mundaring]. Searches for an alternative site to practise their religion and worship have been made since 2008. On 9 August 2010 the Shire wrote to the [a]pplicants in relation to the insufficient capacity of the Stevens Road site to accommodate the Plymouth Brethren[.]
At paragraph 2 of their SIFC, the applicants contended that:
…
(b)Due to a number of environmental and other restraints within the Shire of Mundaring, there are very few sites on which the proposed place of worship could be … accommodated; [and]
(c)The purchase of the site on Coppin Road and the development application … were the culmination of several years of discussion with the [r]espondent as to an appropriate location for the proposed place of worship.
Site and locality
On the first day of the hearing, the Tribunal had the benefit of a view of the site and locality in the company of the parties and several of the expert witnesses.
The applicants own the site in Coppin Road. The site has an area of 5.6471 hectares and has a conditional approval from the Western Australian Planning Commission for subdivision into two lots, namely:
•Lot 1, containing two dwellings and some outbuildings, has an area of 3.4839 hectares; and
•Lot 2, containing horse paddocks, which has an area of 2.1632 hectares.
The proposal is located on Lot 2, which has a shape similar to a parallelogram with a north‑south dimension of approximately 100 metres and an east-west dimension of approximately 240 metres.
In the south‑western corner, the site has frontage to Coppin Road of approximately 25 metres; the level in this locality is about 281 metres AHD. The site falls away to a creek in the north‑eastern corner where the level is about 254 metres AHD ‑ a fall of about 27 metres.
The northern and western boundaries adjoin Lot 1 and the southern boundary adjoins Coppin Road and a quarry site.
Proposed development
The proposed development broadly includes the following characteristics:
(a)the building footprint is in the order of 1,550m2;
(b)the building includes a meeting hall of 638m2 with 10 rows of seating to accommodate a maximum capacity of 800 people, a main foyer of 255m2, a side foyer, plant and equipment, and storage and service areas;
(c)the building will be set back 25 metres from the front boundary and approximately 10 metres from the side boundary with the carpark being 67 metres from the watercourse;
(d)the height of the building varies but is in the order of 7.6 metres to the roof ridge;
(e)202 car parking bays will be provided on a hard stand area which will require cutting and filling of the site; and
(f)a drainage basin with a top water surface area of 2,300m2.
Although the building has been designed to cater for a maximum of 800 people, the typical weekly peaks are Thursday nights from 7 pm to 8.30 pm with 150 to 250 people attending Bible reading, and a Gospel service on Sundays, with around 150 people in attendance.
Every fourth Sunday between 10 am and noon, the typical congregation will swell to 450 to 500 people, and once a month, on Saturday morning, the typical congregation is 350. The peak congregation of 800 persons is expected to occur only once or twice a year.
Council's decision
Early in 2013, the Council advertised the development application and received 74 submissions, of which 72 objected to the proposal.
The development application was the subject of a report by Council's professional staff to a Council meeting in April 2013. The officers' report recommended refusal, concluding that:
The size, scale and land use intensity of the proposed Place of Worship is likely to impact [on] the general amenity of this Rural Residential locality. The visual impact on the existing rural landscape combined with uncertainties regarding the adequacy of effluent and traffic management will result in a development that is inconsistent with the objectives of the Rural Landscape Living zone under the Scheme.
The Council resolved to refuse the application for several reasons, including inconsistencies with the requirements and objectives of TPS 3. Importantly, the sixth reason for refusal was that:
The … Place of [Public] Worship will become an 'X' prohibited use on the subject site under the Shire's Draft Local Planning Scheme No. 4 which is a seriously[-]entertained planning proposal. As Gazettal of Local Planning Scheme No[.] 4 is imminent, supporting a Place of [Public] Worship in this location would be contrary to orderly and proper planning.
Planning framework
The planning framework in this matter was quite complex and changed over time. It was subject to thorough submissions made by the parties, and general examination, at various points, during the hearing.
For reasons which will become clear from the reasons below, it is only necessary to refer to the zoning requirements in Mundaring's former (but current at the commencement of the hearing) and current (but proposed in various forms during the hearing) planning schemes. We commence by noting the provisions of the Shire of Mundaring Town Planning Scheme No 3 (TPS 3 or Scheme) and then turn to consider the drafts which would replace it.
The former Scheme: TPS 3
The site was originally zoned Rural Landscape Living under TPS 3. The use proposed in the development application falls into the use class 'A Place of Public Worship' which, under the Scheme, is an SA use - that is, a use not permitted unless special approval is granted by the Council after the Council has followed the required advertising procedures.
The first three of 11 objectives for this zone were seen as central to the fate of the development. These objectives, as appear in the respondent's SIFC at paragraph 10, were:
(a)to protect the rural environment and landscape;
(b)to ensure that land use and development do not adversely affect the landscape quality and scenic values; [and]
(c)to limit the visual impact of development and conserve and enhance the existing landscape quality and scenic values[.]
The development requirements for this zone are found in cl 4.17 of TPS 3. Clause 4.17(1) of TPS 3 required that:
The Council will not approve any development of land where, in the opinion of the Council such development would detract from the rural or urban landscape and scenic value of the area.
Clause 4.17(2) of TPS 3 described 11 design principles that Council must take into consideration when making a decision or which may form the basis of any conditions of approval. One of the items that received considerable attention during the hearing, because of its indirect reference to the scale of the development, was design principle (j), which reads as follows:
The coverage of individual lots by buildings shall not exceed 500 m2 on lots up to 1 hectare in area and 600 m2 on lots over 1 hectare in area, without the approval of the Council.
Draft Local Planning Scheme No 4
The respondent had prepared and advertised a new draft Local Planning Scheme No 4 (LPS 4) to replace TPS 3. In LPS 4, the site would have been located in the Rural Residential zone. In the advertised version, subsequently adopted by the Council, the use class 'Place of Worship' was to be an 'X' use, or a use not permitted in the Rural Residential zone.
In June 2013, the Acting Minister for Planning (Minister) advised the Council that he would not approve LPS 4 until certain modifications were made, including provisions relating to the 'Place of Worship' use class. The Minister required the following proposed modifications to be advertised for a period of 28 days:
1.Modify Table 1 to designate 'Place of Worship' as an 'A' use in all zones in the Scheme, except for the Development zone (where no permissibility is listed).
2.Insert the following clauses in section 5.7 ‑ Development Requirements for All Zones:
5.7.32 In determining an application for a Place of Worship, the Shire shall have regard for the following:
(a)Proximity to population centres;
(b)Potential impact on surrounding residents;
(c)The scale of the proposal relative to the size of the lot on which it is proposed and the size of adjacent lots;
(d)Visual impact and visual compatibility with surrounding land uses and development;
(e)Adequacy of on-site parking;
(f)Hours of operation;
(g)Potential impact of any uses incidental or ancillary to the Place of Worship use;
(h)Access capable of safely accommodating vehicle movements generated by the development;
(i)Ability to comply with all relevant Acceptable Solutions of Planning for Bush Fire Protection Guidelines or any successor document;
(j)Capability of the site for required on-site effluent disposal; and
(k)Distance from adjacent residences.
The modifications were advertised, and at its meeting on 11 September 2013, the Shire resolved to accept the recommended changes except that, in the Shire's view, a 'Place of Worship' should remain an 'X' use in the Rural Residential zone.
At the time of the hearing in November 2013, it was not clear what the Minister would determine having regard to the Shire's response. The hearing therefore initially proceeded upon the basis that the proposal would remain as a discretionary use in LPS 4, but the parties and the Tribunal both recognised that there was a possibility that the proposal may have become a prohibited (or an 'X') use under LPS 4.
The hearing in November and the issues
At the beginning of the November 2013 hearing, the respondent applied to adjourn the hearing because it had been advised that the Western Australian Planning Commission would meet on 26 November 2013 to consider submissions on LPS 4 and make a recommendation to the Minister on the final form of LPS 4. The applicants opposed the adjournment.
After receiving submissions from parties, the Tribunal determined that the hearing should proceed since the proposed use was a discretionary use in TPS 3 and seemed likely, given the Minister's proposals, to remain a discretionary use in LPS 4.
However, the Tribunal recognised the potential for the Minister's final decision to become a relevant factor which would require further consideration, and at the conclusion of the four days of hearing in November 2013, the Tribunal adjourned the matter until late in December 2013, by which time it was expected that the final form of LPS 4 would be apparent.
Hence, the matter proceeded on the basis of the known planning framework and the anticipated relevant provisions of LPS 4.
A wide range of issues were raised by the parties and, for convenience of reference, they may be grouped into three main categories.
Technical issues
First, there was a range of 'technical' issues which, although they had the theoretical capacity to become grounds for refusal, were more likely to be matters effectively resolved by way of conditions of approval. These issues were:
•traffic safety/management;
•effluent disposal; and
•stormwater disposal.
Amenity issues
The second group of more important issues centred on amenity and were:
•the scale of the proposal;
•the impact of traffic on amenity;
•the impact of noise on amenity; and
•the impact on the landscape value of the locality.
The respondent argued that in addition to each individual aspect of amenity, the cumulative impact of all of the amenity issues must be considered.
Other issues
The applicant argued that the 'need for the proposal' was also a relevant issue. Further, the Tribunal raised the issue of whether and to what extent any planning framework may require, in effect, reasonable accommodation or adjustment, perhaps at the margins, having regard to the recognised practice of religious freedom in our community: see, for example, Haladhar Holdings Pty Ltd and Shire of Kalamunda [2012] WASAT 143 at [95] and [96] and the authorities discussed therein. Cf New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154; (2003) 127 LGERA 303 at [67]:
… In the interest of preserving religious equality and the freedom to exercise religious beliefs, the court should be slow to adopt a construction which could have the effect of preventing the use of premises by persons who wish to practice their religion at the place where they wish to do so.
The main arguments
The essence of the respondent's argument in opposition to the development was that even if the use class was acceptable in the particular locality, which it disputed, this specific proposal was unacceptable because of its scale and the consequential adverse impact on the landscape values and rural character and amenity of the locality.
The applicants argued that the use class was acceptable in the locality and the zone, as evidenced by the Shire's approval of various places of worship including the applicants' current place of worship. In terms of scale and impact (having regard to the expected number of users and visitors), the applicants argued that what was in truth a generally intermittent use of the site would ensure that noise and traffic issues (which could be managed) would not have an unreasonable impact on the amenity of the locality.
Further, in terms of the scale of the building and associated infrastructure, the applicants argued that the particular location on the site ‑ well below road level and on a part of the site separated from the road ‑ would ensure minimal impact. When this factor was combined with proposed extensive landscaping, the applicant argued that the proposal would not have a negative visual impact.
The Tribunal received from both parties extensive expert evidence on all of these key issues.
The Minister's final decision
Events overtook proceedings when the Minister made a final decision on draft LPS 4. All the above considerations were, in effect, superseded by the Minister's decision (detailed below), which led to a special and urgent hearing on 7 January 2014 to receive arguments from the parties on the consequences of the Minister's decision.
By letter dated 12 December 2013, the Western Australian Planning Commission wrote to the respondent advising that the Minister had decided not to approve LPS 4 until the 'modifications set out in the attached schedules [were] effected'. Relevant to this matter, the Minister required the addition of a new cl 5.7.32.3 as follows:
The Council shall not approve a Place of Worship in the Rural Residential zone unless located on a road identified as a Primary Regional Road Reserve or an Important Local Road Reserve under the Scheme or located adjacent to an existing or planned activity centre.
Critically, the applicants' current proposed development would not (and could never) meet any of these criteria.
Furthermore, a relatively tight (but statutory) time‑frame emerged as the Western Australian Planning Commission's letter required the respondent to then carry out the modifications and return the modified Scheme documents to the Western Australian Planning Commission for the Minister's endorsement of final approval within 42 days; that is, by 23 January 2014. This was a period which included the Christmas and New Year period.
Thus, the Minister's decision not only significantly changed the planning framework but the correspondence indicated that gazettal of LPS 4 was imminent. It appeared likely that there could be a change in the law (that is, by the enactment of a new town planning scheme) before the Tribunal had made a final decision on the merits of the case (including consideration of the relevant criteria set out in the earlier version of LPS 4).
At the hearing on 7 January 2014, the Tribunal received arguments from the parties on the effect of the new planning framework and, in particular, on the weight to be given, if any, to the new cl 5.7.32.3.
The Tribunal's decision and reasons: 10 January 2014
At a subsequent hearing on 10 January 2014, the Tribunal delivered, in effect, its final decision with oral reasons. What now follows is taken from the transcript of those reasons and has been formally revised and edited for publication and incorporated into these reasons for decision.
The Tribunal has concluded that it must either dismiss or, at least, adjourn proceedings, upon the basis of the acceptance by the Tribunal that LPS 4 is a seriously‑entertained planning proposal which requires very significant weight to be afforded to it.
Significant weight, in this context, leads, in our view, to an inevitable conclusion that the development ought not to proceed.
LPS 4's enactment is both imminent ‑ perhaps only a few days away ‑ and is relevantly final. The instrument will have the force of law and will be formally made at the highest level of government. Importantly, the proposed instrument, so far as is relevant, is directly applicable to the issue before the Tribunal, and in its terms, directly inimical to the approval that is sought by the applicants.
The Tribunal has had regard to the criteria for the consideration of seriously-entertained planning proposals set out, for example, in the Tribunal's decision in Nicholls v Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117. We have also had regard to the relevant authorities from other jurisdictions; these other decisions have been determined at the highest levels.
Thus, in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, (2003) 129 LGERA 195 (Terrace Tower) the Chief Justice of New South Wales, sitting with the President of the New South Wales Court of Appeal (Mason P) and Ipp JA, made some pertinent observations as follows, at [5] and [6] (emphasis added):
Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its 'certainty and imminence'. I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft.
Notwithstanding 'certainty and imminence', a consent authority [including, for present purposes, this Tribunal] may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect.
Importantly, his Honour then observes at [7] (emphasis added):
Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective[.]
And then his Honour makes certain observations on the case before the Court, as follows, at [7]:
… The development proposed in this case, and the evidence of the significant implications for the [locality], may well be of a similar character insofar as [the relevant planning objectives are concerned].
His Honour's views are noted, with apparent approval, in LA Stein's leading work, Principles of Planning Law (OUP, 2008), a work which has been cited in this Tribunal on numerous occasions. Stein discusses these observations of Spigelman CJ, and says (at 109 and 110, emphasis added):
The treatment of a draft amendment as having a different effect depending upon the stage it has reached in the amendment process requires the planning authority, court or tribunal to focus on the process and not the contents of the amendment. In New South Wales, the 'certain and imminent' test requires a judge to examine the actual steps in the process and decide whether the amendment was likely. It was perhaps realised that this alone did not draw a clear line and therefore the Chief Justice [in Terrace Tower] added that where a draft instrument is designed to preserve the character of a particular neighbourhood, it is entitled to considerable weight if the development would, in a substantial way, undermine that objective. This adds a planning perspective to the consideration of the effect of a draft amendment and relates its importance to the subject matter; neighbourhood character is a finely tuned objective and any derogation from its content will receive more intense scrutiny.
Here, the relevant local planning scheme provisions (that is, the final version of LPS 4) either fall into that category of 'neighbourhood character' or are very closely aligned to that category. Stein goes on to talk about the concept of what is a 'seriously entertained' planning proposal under Victorian planning law (at 110, emphasis added):
These [Victorian] tests show that the essential issue is the achievement of the best planning outcome. This is an appropriate approach; to give greater weight to a proposal, because it is certain and imminent or because it is seriously entertained is artificial. What should be analysed is not the timing of the draft but rather whether it represents the proper planning approach to a particular application. If the council has resolved to proceed with an amendment, this is a clear indication that it considers the planning merits of the draft worth advancing …
Of course, in this case, we are dealing with a matter beyond local approval; we are talking about Ministerial approval with the planning objectives of both parties directed to the same end.
The application of these principles is clearly illustrated in an analogous Victorian tribunal decision: Mifsud v Shire of Melton [2001] VCAT 1783, a presidential decision of the Victorian Civil and Administrative Tribunal (VCAT) (Judge Wood, Vice‑President, and a planning member, Mr L Hewet ‑ as he then was).
In that case, the Victorian Minister for Planning had written to VCAT, drawing attention to the imminent promulgation of the Victorian Code for Best Practice Broiler Farms (Code). Importantly, this instrument was to be given legal effect by its incorporation, under statute, into the Victorian Planning Provisions. His Honour said, at [35]:
… It is proposed to implement the Code into the statewide Victorian Planning Provisions. Pursuant to s.35 of the Planning and Environment Act 1987, the Minister for Planning is authorized to approve any amendment to a Planning Scheme. This approval, when gazetted, may only be revoked by Parliament …
Earlier, at [25], his Honour had noted (emphasis added):
… [The Code's] formal adoption is imminent, next week at the earliest, and no evidence or indication has been advanced before us that the time frame will not be adhered to or that the 'whole of Government' response will be amended in any way.
The Tribunal said, (at [35] and [36], emphasis added):
…We were not advised of any change whatsoever in the Government's position subsequent to the Minister's letter … We are of the opinion therefore that the amendment is imminent and will take the form approved by Government in its response and so advised to the President of this Tribunal. Accordingly, the provisions of the Code must be afforded great weight.
… Our task in this circumstance is to determine the extent to which the Government response can be categorised as a seriously[-]entertained proposal. On the material before the Tribunal the proposal appears immutable given the Minister's response.
Assessing the impact of the Code in relation to the proposal before the Tribunal, his Honour concluded as follows (at [36], emphasis added):
If approved by this Tribunal, the proposal before us would fly in the face of the proposed Code conditions relating to [various, regulatory matters, such as buffer zones etc] and result in the creation of [a type of] farm which the Code expressly prohibits. These contraventions of the Code, should [approval be given], are substantial and provide sufficient reason to conclude[,] irrespective of our conclusions [on the merits], that the proposal is unsuitable …
Here, critically, the planning outcome sought by Government is not relevantly objectionable; from a planning point of view, it seeks to legitimately regulate land use in the Rural Residential zone in a way which accords with rational planning principle, including, for example, avoiding land use conflicts and preserving rural amenity. In short, it seeks to preserve a legitimate 'neighbourhood character', a matter discussed in Terrace Tower. And, that planning outcome has, as we have noted, both local government and Ministerial support. To approve the proposed development in such circumstances would be to unjustifiably 'fly in the face of' (to use the words of VCAT) these important and imminent changes to the planning framework.
It is true that Miller v Shire of Waroona [2009] WASAT 238 (Miller) suggests that if a planning outcome is directed, without apparent justification, at a particular individual or class (effectively 'unjustified discrimination'; see Miller at [46]) then those circumstances might justify a temporary planning approval in the face of an otherwise inconsistent, seriously entertained planning proposal. But those circumstances bear no resemblance to the facts here.
For these reasons, we reach the position that the review should be effectively terminated by dismissal or withdrawal, although, given the difficult circumstances of the case, we would consider an adjournment application so as to allow matters to take their course.
The Tribunal notes that LPS 4 was gazetted and consequently came into force on 17 February 2014.
Orders
The Tribunal made the following orders on 10 January 2014:
1.Subject to these orders the application for review is dismissed.
2.Paragraph 1 of these orders does not come into effect for a period of 28 days.
3.Otherwise the matter is adjourned to 10.30 am on Friday, 7 February 2014.
The Tribunal made the following orders on 7 February 2014:
1.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw this proceeding and the proceeding is hereby withdrawn.
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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