KELLA NOMINEES PTY LTD and CITY OF PERTH
[2017] WASAT 116
•5 SEPTEMBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KELLA NOMINEES PTY LTD and CITY OF PERTH [2017] WASAT 116
MEMBER: MS L EDDY (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 5 SEPTEMBER 2017
FILE NO/S: DR 87 of 2017
BETWEEN: KELLA NOMINEES PTY LTD
Applicant
AND
CITY OF PERTH
Respondent
Catchwords:
Town planning - Review of decision made under local planning scheme - Application for approval of transfer of plot ratio - City of Perth City Planning Scheme No 2 - City of Perth Local Planning Scheme No 26 - Preliminary issue - Whether application capable of approval - Where plot ratio specified in City of Perth Local Planning Scheme No 26 and not in plot ratio plan - Maximum plot ratio
Legislation:
City of Perth City Planning Scheme No 2, cl 3, cl 3(1), cl 4, cl 6(h), cl 8, cl 8(1), cl 8(2), cl 27, cl 28, cl 28(3), cl 30, cl 30(1), cl 30(1)(b), cl 31, cl 34, cl 35, Sch 4,
City of Perth Local Planning Scheme No 26, cl 1.6, cl 3.4, cl 4.5, cl 4.5.3
East Perth Redevelopment (Subtracted Area) Regulations 2011 (WA), reg 6
East Perth Redevelopment Act 1991 (WA)
Heritage of Western Australia Act 1990 (WA)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Preliminary issue 1 determined in favour of applicant
Preliminary issue 2 determined against applicant
Summary of Tribunal's decision:
The application relates to the refusal by the City of Perth of the applicant's request for approval of a specified amount of transferable plot ratio from a donor site in East Perth. The parties raised two preliminary issues, which the Tribunal ordered were to be determined on the documents. Applying relevant principles of statutory interpretation, the Tribunal determined the two preliminary issues as follows:
1. The application concerning transferable plot ratio for the site is capable of approval under cl 30 of City of Perth Planning Scheme No 2 (CPS 2) even though the maximum plot ratio for the site is specified in City of Perth Local Planning Scheme No 26 (LPS 26) and not in the Plot Ratio Plan of CPS 2.
2. The maximum plot ratio of the site, some of which is available for approval as 'transferrable plot ratio' under cl 30 and 31 of CPS 2 is 1.5.
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: Moharich and More
Respondent: McLeods
Case(s) referred to in decision(s):
Chiefari v Brisbane City Council [2005] QPELR 500
Director General of Department of Transport v McKenzie [2016] WASCA 147
Landcorp and City of Stirling [2011] WASAT 202
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642
New South Wales Crime Commission v Kelly [2003] NSWCA 245
Peninsula Group Pty Ltd v RegistrarGeneral for the Northern Territory (1996) 136 FLR 8
Riley v Parole Board of New South Wales (1985) NSWLR 606
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Kella Nominees Pty Ltd (applicant) is the registered proprietor of land located at 76 Wittenoom Street, East Perth (site). On 7 September 2016, the applicant applied to the City of Perth (respondent) for approval to increase the transferable plot ratio of the site pursuant to cl 30 of the City of Perth's City Planning Scheme No 2 (CPS 2 or Scheme). The request was for approval of an increase in the transferable plot ratio of the site of 3,673m². The request was based on a calculation assuming a maximum plot ratio for the site of 2.5 and there being no retention of any unutilised plot ratio for the site if the request was approved.
By notice of determination dated 21 February 2017, the respondent refused the applicant's application. The reasons given for that refusal were:
1.[T]he City has no discretion to increase the maximum plot ratio of the site above 1.5:1 to 2.5:1 … on Lot 5 with 50% of the plot ratio above 1.5:1 being for residential development;
2.[U]nder clause 34 of the Scheme the maximum plot ratio considered for any transfer of plot ratio refers to the plot ratio specified on the Plot Ratio Plan and the Plot Ratio Plan under City Planning Scheme No 2 does not specify any plot ratio for Lot 5; and
3.The City's policy 4.5.2 Transfer of Plot ratio requires a minimum of 10% unused plot ratio shall be retained on the donor site and there is no planning justification that has been provided or exceptional circumstances applicable to the site to warrant any variation to the policy provision.
On 17 March 2017, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision.
By orders of the Tribunal made on 31 March 2017, the parties were required to lodge with the Tribunal a statement of preliminary issues to be determined by the Tribunal and those issues were, subject to any further order, to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
On 18 April 2017, the parties lodged a statement of preliminary issues that identified the following preliminary issues to be determined by the Tribunal:
1.Whether the applicant's application concerning transferable plot ratio for No 76 Wittenoom Street, East Perth (site) is capable of approval under clause 30 of the Respondent's City Planning Scheme No 2 (CPS 2) when the maximum plot ratio for the Site is specified by the Respondent's Local Planning Scheme No 26 (LPS 26) and not CPS 2?
2.If the answer to question no 1 is 'yes', whether the maximum plot ratio of the Site is 1.5 or 2.5 under clause 4.5.3 of LPS 26 for the purpose of determining and registering transferable plot ratio under clauses 30 and 31 of CPS 2?
On 28 April 2017, the parties lodged a Statement of Agreed Facts and an Agreed Bundle of Documents for the purposes of determination of the preliminary issues.
The parties each filed submissions in relation to the preliminary issues and submissions in reply, with the last document being received by the Tribunal on 20 June 2017. Neither party applied to the Tribunal for an opportunity to make oral submissions in relation to the preliminary issues. Accordingly, the Tribunal has determined the preliminary issues entirely on the documents.
Facts
The site had previously been used as the location of the East Perth Primary School. The East Perth Primary School building located on the site is listed on the State Register under the Heritage of Western Australia Act 1990 (WA) and is the subject of a Heritage Agreement, executed in May 2016.
In 2005, the applicant applied for approval of the site as a donor site able to transfer 100% of the site's unused plot ratio to other locations. The respondent approved the site as a donor site under the provisions of CPS 2 but allowed a maximum of transferable plot ratio of 75% of the maximum plot ratio of the site. Applying a maximum plot ratio of 1.5 to the site, 75% of the site's unused plot ratio was calculated to be 3,045m². 500m²was transferred to 1 Walker Avenue and 7 Rheola Street, both in West Perth, and the remaining amount of 2,554m² was entered into the respondent's Register of Transfer of Plot Ratio as being available for use at other locations for the purpose of development of those other locations.
In 2015, the applicant sought approval for an additional 635m² to be added to the transferrable plot ratio able to be donated from the site. Applying a plot ratio of 1.5, this represented a further 15% of the site's unused plot ratio being donated from the site. The respondent approved this application and consequently the site retained 410m² (10%) of its total unused plot ratio applying a plot ratio of 1.5.
Statutory and policy framework
Section 252(1) of the PD Act provides for an application to be made to the Tribunal where:
(a)under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has
(i)refused the application; or
(ii)granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision.
The site is located within that part of the City of Perth that was previously governed by the East Perth Redevelopment Authority under the East Perth Redevelopment Act 1991 (WA) (now repealed). Starting in 2002, parts of the East Perth Redevelopment Area were incrementally subtracted from the East Perth Redevelopment Area. In 2011, the site was subtracted from the East Perth Redevelopment Area by the East Perth Redevelopment (Subtracted Area Stage 3) Regulations 2011 (WA) (Subtracted Area Stage 3 Regulations) together with the East Perth Redevelopment (Return of Redeveloped Land Stage 3) Order 2011 published in the Government Gazette on 16 December 2011 (Subtracted Area Stage 3 Order). Pursuant to the Subtracted Area Stage 3 Regulations and the Subtracted Area Stage 3 Order, the site became included in the land to which CPS 2 and City of Perth Local Planning Scheme No 26 (LPS 26) apply.
In the Scheme Map of CPS 2, the site is identified as 'Normalised Redevelopment Area'. Clause 4 of CPS 2 provides that land depicted on the Scheme Map as Normalised Redevelopment Area is subject to CPS 2 and to LPS 26. Clause 8(1) of CPS 2 states that 'the local government administers the following minor town planning schemes which are complementary to this Scheme …'. LPS 26 is identified as one of those minor town planning schemes.
Clause 1.6 of LPS 26 provides:
1.6.1This Scheme is complementary to and is not a substitute for the City Planning Scheme.
1.6.2Where a provision of this Scheme is inconsistent with a provision of the City Planning Scheme, the provision of this Scheme prevails.
1.6.3The reference in clause 36(1) to 'a standard or requirement of this Scheme' shall be taken to include a standard or requirement of this Scheme.
1.6.4In any provision which:
(a)is contained within a local planning scheme that repeals and replaces the City Planning Scheme; and
(b)empowers local government to approve a development which does not comply with the standard or requirement of that local planning scheme;
any reference to a standard or requirement of that local planning scheme shall be taken to include a standard or requirement of this Scheme.
1.6.5The reference in clause 43(1)(d) to 'all standards laid down and all requirements prescribed by this Scheme' shall be taken to include any standards laid down and any requirements prescribed by this Scheme.
1.6.6In any provision which:
(a)is contained within a local planning scheme that repeals and replaces the City Planning Scheme; and
(b)prohibits a person from erecting, altering or adding to a building or using or changing the use of any land or building or permitting or suffering any land or building to be used or the use of any land or building to be changed for any purpose unless all the standards laid down and all the requirements prescribed by that local planning scheme or determined by the local government under that local planning scheme have been and continue to be complied with;
any reference to the standards laid down or standards prescribed by that local planning scheme shall be taken to include all standards laid down and all requirements prescribed by this Scheme.
Clause 30 of CPS 2 provides a mechanism by which the local government may approve the transfer of 'transferable plot ratio' from a donor site to another site in specified circumstances. Clause 30 of CPS 2 states:
(1)The local government may, on request, approve a place as a donor site for the transfer of transferable plot ratio, if the place:
(a)is recorded in the Heritage List or located within a Heritage Area;
(b)cannot be developed to the maximum plot ratio specified in the plot ratio plan without adversely affecting the cultural heritage significance of:
(i)the place or its locality; or
(ii)any Heritage Area within which the place is located;
(c)is not a reserve or located in a reserve shown on the Scheme map and referred to in clause 12(1)(a) or (b); and
(d)is subject to a conservation plan if the place is of cultural heritage significance.
(2)The local government may approve or refuse a request made under clause 30(1). Where it grants approval, the local government:
(a)shall determine the amount of transferable plot ratio on a donor site taking into account the need to retain an amount of unused plot ratio for future development or adaptation of the place; and
(b)shall impose conditions which must be satisfied prior to a place being recorded as a donor site in the register of transfer of plot ratio. These conditions shall include:
(i)the preparation of a heritage agreement, at the landowner's cost, to be signed by the landowner and the local government and, where the place is listed on the Register of Heritage Places under the Heritage of Western Australia Act 1990, the Heritage Council of Western Australia; and
(ii)if considered necessary by the local government for the conservation of the place, the completion of any urgent works specified in the conservation plan for the place.
(3)Approval of a place as a donor site shall lapse if all conditions of the local government's approval are not fulfilled before the expiration of 12 months, or such further period as the local government may determine, from the date on which the local government resolved to grant the approval.
(4)On fulfilment of all conditions of the local government's approval, the place shall be recorded as a donor site in the register of transfer of plot ratio in accordance with clause 31.
(5)The local government may approve, by grant of development approval, the transfer of all or part of transferable plot ratio from a donor site on the register of transfer of plot ratio to a recipient site.
(6)The local government may only approve the transfer of transferable plot ratio if:
(a)at the same time, it grants development approval for development of the recipient site that utilises all or part of a donor site's transferable plot ratio;
(b)the development will have no significant adverse impact on the cultural heritage significance (if any) of the recipient site or its locality;
(c)the development of the recipient site otherwise warrants approval under the Scheme; and
(d)the resulting increase in plot ratio of the recipient site due to:
(i)the transfer of transferable plot ratio under clause 30 does not exceed the maximum plot ratio specified for the recipient site by more than 20%; and
(ii)the combination of the transfer of transferable plot ratio under clause 30 and any bonus plot ratio under clause 28;
does not exceed the limits referred to in clause 28(3).
(7)The transfer of transferable plot ratio from a donor site to a recipient site shall be effective on receipt of evidence of proof of purchase of the transferable plot ratio by the recipient site.
(8)Transferable plot ratio once recorded to a recipient site on the register of transfer of plot ratio shall not be on sold from the recipient site to another site.
The term 'transferable plot ratio' is defined in Sch 4 of CPS 2 as:
… the amount of plot ratio of a donor site which is available for transfer from the donor site to a recipient site as recorded in the register of transfer of plot ratio.
'Plot ratio' is in turn defined in Sch 4 of CPS 2 as:
… the ratio of the floor area of a building to the area of land within the boundaries of the lots on which that building is located.
As can be seen from the terms of cl 30 of CPS 2 reproduced above, a place may be approved as a donor site if, amongst other things, it cannot be developed to the maximum plot ratio specified in the Plot Ratio Plan without adversely affecting the cultural heritage significance of the place, its locality or a heritage area in which the place is located. 'Maximum plot ratio' is defined in Sch 4 of CPS 2 to mean 'the maximum plot ratio for development which is specified for a lot or part of a lot by the Plot Ratio Plan'. The term 'Plot Ratio Plan' is not defined in Sch 4 of CPS 2 but is listed as one of the documents which comprises the Scheme in cl 3(1) of CPS 2. The Plot Ratio Plan does not identify any plot ratio applicable to the site.
Under LPS 26, the site is located within Precinct EP4: Silver City (Precinct EP4). At cl 4.5 of LPS 26 the following requirements are stated in relation to Precinct EP4:
4.5.1Precinct Statement of Intent -
The Silver City Precinct will continue its key role in accommodating a substantial workforce population including research, office and other business activity, whilst also including residential development.
4.5.2The following table lists the Preferred, Contemplated and Prohibited uses within Precinct EP4: Silver City
Precinct EP4: Silver City
Land Use Category
Use Symbol
Category 1 Culture and Creative Industry
C
Category 2 Commercial
P
Category 3 Light Industry
C
Category 4 Retail
C
Category 5A Permanent Residential
P
Category 5B Transient Residential
P
Category 6 Community
P
Category 7 Dining and Entertainment
C
4.5.3Maximum Plot Ratio: 1.5
The plot ratio may be increased to a maximum of 2.5 provided that in any development having a plot ratio in excess of 1.5, not less than 50% of the excess relevant floor area shall be dedicated to residential use.
At cl 3.4 of LPS 26 it is stated that:
The local government cannot grant development approval for a noncomplying application in respect of an application for an increase in plot ratio above the specified maximum plot ratio in Parts Four and Five of the Scheme.
Is the application capable of approval?
The respondent submits that, as there is no plot ratio specified for the site on the Plot Ratio Plan, cl 30 of CPS 2 does not apply to the site. It is submitted that the relationship between LPS 26 and CPS 2, as provided for in cl 1.6 of LPS 26, does not operate so that the maximum plot ratio for the site specified in LPS 26 is applicable to cl 30 of CPS 2. Clause 30 of CPS 2 only renders eligible for approval as a donor site those places to which cl 30(1)(b) of CPS 2 apply. That is, places that have a maximum plot ratio specified on the Plot Ratio Plan. Therefore, it is not possible, and never was possible, to approve the transfer of any plot ratio from the site.
The applicant submits CPS 2 and LPS 26 work together in the following way. LPS 26 provides the land use and development standards and requirements that apply to land to which that scheme applies. CPS 2 provides the mechanics for how those development standards and requirements are to be administered. As both CPS 2 and LPS 26 apply to the site, it is necessary to read them together, and it is only if there is an inconsistency that LPS 26 prevails. The applicant submits there is no inconsistency between the Schemes. LPS 26 provides for the applicable plot ratio by way of text within the scheme while CPS 2 provides for the applicable plot ratio to be identified on a plot ratio plan. It is submitted that when applying clause 30 of CPS 2 to the site, one simply refers to LPS 26 for the relevant maximum plot ratio rather than the Plot Ratio Plan.
The respondent submits in reply that the applicant's interpretation requires words to be read into cl 30 of CPS 2 in an impermissible way. In addition, the respondent submits that neither CPS 2 nor LPS 26 state that the two Schemes are to be read together as if they were one scheme.
History of the Schemes
It is useful, in the circumstances, to consider the history of relevant provisions of CPS 2 and of LPS 26.
CPS 2 was originally gazetted in January 2004, at which time the site was within the East Perth Redevelopment Area. As such, at the time of its gazettal, CPS 2 did not apply to the site.
At the time of gazettal, CPS 2 provided the following in relation to plot ratio transfer:
34.Transfer of plot ratio
(1)The Council may approve, by a grant of planning approval, the transfer of unused plot ratio rights from a site
(a)which is
(i)a place declared by the Council to be significant and worthy of conservation; or
(ii)within a conservation area; and
(b)which cannot be developed satisfactorily, to another site.
(2)An application for approval under this clause is to
(a)comply with the requirements of clause 39; and
(b)be signed by the owner of each of the sites which would be affected by an approval.
35.Register of transferred plot ratio
(1)The Council is to record, in a register of transferred plot ratio, the sites affected by, and details of the transfer of plot ratio rights under, an approval under clause 34.
(2)A copy of the register is to be
(a)kept at the offices of the City; and
(b)made available for public inspection during office hours.
plot ratio means the ratio of the floor area of a building to the area of land within the boundaries of the lots on which that building is located;
27.Plot ratio
(1)Unless otherwise provided in this Scheme, the plot ratio of development is to comply with the plot ratios specified in the Plot Ratio Plan.
The Plot Ratio Plan was, as now, part of CPS 2.
In May 2005, some amendments were made to the Plot Ratio Plan that are not relevant for present purposes.
In September 2007, LPS 26 was gazetted, although at that time it was called the City of Perth Local Planning Scheme No 26 East Perth Redevelopment (Normalised) Area. At the same time, CPS 2 was amended to include the land covered by LPS 26 in the Scheme Map of CPS 2, identifying LPS 26 as a minor scheme identified in cl 8 of CPS 2 and other consequential amendments.
On 31 July 2007, cl 34 and cl 35 of CPS 2 were deleted and replaced with new provisions that were, other than to refer to the 'Council' as opposed to the 'local government', in identical terms to the current cl 30 and cl 31 of CPS 2. Definitions for 'conservation plan', 'donor site', 'recipient site' and 'transferable plot ratio' were added to Sch 4 of CPS 2. At this time, the site was not covered by CPS 2.
In 2011, the Subtracted Area Stage 3 Regulations and the Subtracted Area Stage 3 Orders had the effect of amending CPS 2 and LPS 26 to include the land being subtracted from the East Perth Redevelopment Area by those instruments (which included the site) into the area to which CPS 2 and LPS 26 applied. Regulation 6 of the Subtracted Area Stage 3 Regulations provided that the provisions of the redevelopment scheme that applied in relation to the land before it was included in the area to which CPS 2 and LPS 26 applied continue to apply in relation to the land, other than the provisions listed of the redevelopment scheme identified in the Table within that regulation.
On 17 March 2015, LPS 26 was amended in a number of ways. The amendments included a change to the scheme's title to its current title. It was also amended to add a number of new precincts (including EP 4 Silver City) and provisions relating to those precincts.
In addition, CPS 2 was further amended. Amongst those amendments, the Plot Ratio Plan was amended as follows:
Amending the Plot Ratio Plan to
a)delete reference to the 'East Perth Redevelopment Area Boundary' and replace it with the 'Metropolitan Redevelopment Authority Area Boundary (MRA)';
b)delete reference to the 'EPRA' and replace it with the ‘MRA';
c)delete reference to the 'EPRA Area Subject to East Perth Redevelopment Act 1991'; and
d)modify the 'Metropolitan Redevelopment Authority Area Boundary (MRA)' to delete the Normalised Stage 1A New Northbridge Project Area and Stages 1, 2 and 3 Claisebrook Village Project Area, and to include the Elizabeth Quay Project Area.
The only other amendment to the transferable plot ratio clauses in CPS 2 was made in February 2017, when references to 'Council' and 'City of Perth' throughout CPS 2 were replaced with the words 'local government'.
Proper interpretation of cl 30 of CPS 2
It is well accepted that town (or now local) planning schemes are not drafted by Parliamentary Counsel and because of this, they should be 'read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose': Chiefari v Brisbane City Council [2005] QPELR 500 at 502 per Wilson J; referred to by the Tribunal in Galloway & Associates and City of Melville [2007] WASAT 238 at [41], and more recently in Landcorp and City of Stirling [2011] WASAT 202 at [26].
Having said that, regard must be had to the general principles of statutory construction, recently restated by the Court of Appeal in Director General of Department of Transport v McKenzie [2016] WASCA 147, [45] [48]:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
The concept of 'transferable plot ratio' , as indicated above, is defined by reference to the amount of plot ratio which is available for transfer from the donor site as recorded in the register of transfer of plot ratio. Clause 30 of CPS 2 does not expressly limit the amount of a site's plot ratio that may be registered in the register of transfer or plot ratio. However, the local government must determine the amount of transferable plot ratio on a donor site 'taking into account the need to retain an amount of unused plot ratio for future development or adaption of the place'.
The ability to approve a place as a donor site for the transfer of transferable plot ratio is predicated on the satisfaction of the four requirements specified in cl 30(1) of CPS 2. Relevantly to this matter, the site must be a place that 'cannot be developed to the maximum plot ratio specified in the Plot Ratio Plan without adversely affecting the cultural heritage significance[.]'
The text used expresses the concept of maximum plot ratio only by reference to the maximum plot ratio specified in the Plot Ratio Plan. These words were not amended when land was subtracted from the East Perth Redevelopment Area and incorporated in to the scheme area of CPS 2. Nor was the Plot Ratio Plan amended to specify any plot ratio in relation to normalised redevelopment areas. As a consequence, unlike the rest of the scheme land, the normalised redevelopment area has the maximum plot ratio specified in LPS 26 rather than in the Plot Ratio Plan.
CPS 2 uses the Plot Ratio Plan to identify the plot ratio that applies for the purposes of development: cl 27 of CPS 2. It then uses the Bonus Plot Ratio Plan, and cl 28 of CPS 2 to provide a mechanism whereby the local government may permit a bonus plot ratio in certain circumstances up to the maximum plot ratio specified in the Bonus Plot Ratio Plan. The Bonus Plot Ratio Plan does not provide any maximum bonus plot ratio in relation to any of the normalised redevelopment areas.
In comparison, LPS 26 identifies maximum plot ratios in the text relating to each of the precinct areas. It also provides for increase in maximum plot ratio by means of text provisions relating to each precinct. It does not refer to the Plot Ratio Plan, or the Bonus Plot Ratio Plan, of CPS 2 at all.
If one takes the literal meaning of the text used in cl 30 of CPS 2 without regard to anything else, one would have to conclude that the local government is only able to approve a donor site for transferable plot ratio if the site is one that has a maximum plot ratio specified on the Plot Ratio Plan of CPS 2.
It is difficult to identify why a provision, whose purpose is plainly aimed at preserving cultural heritage significance by promoting the preparation of heritage agreements and the completion of urgent works specified in a conservation plan for the place, would be limited in reach to only the land within the Scheme Area that is not within the normalised redevelopment area. Particularly in circumstances where one of the 'objectives and intentions' of the Scheme, stated in cl 6(h) of CPS 2, is to:
(h)to promote and safeguard the cultural heritage of the local government by
(i)identifying, conserving and enhancing those places which are of significance to Perth's cultural heritage;
(ii)encouraging development that is in harmony with the cultural heritage value of an area; and
(iii)promoting public awareness of cultural heritage generally;
As can be seen by the example of the site the subject of this application, the land that was formerly within the East Perth Redevelopment Area is not without areas of cultural heritage value. It is not easily understandable, without clear words expressing that intention, that it would have been meant to exclude that land from being the subject of a provision in CPS 2 aimed at encouraging protection of cultural heritage places. This is particularly so where there are no provisions relating to cultural heritage or having any similar apparent purpose in the more specific LPS 26. In the context of the history of the amendments of CPS 2 and LPS 26 outlined above, one wonders whether there was simply a drafting oversight that failed to recognise that cl 30 of CPS 2 was drafted to deal with only maximum plot ratio specified in the Plot Ratio Plan, yet the normalised redevelopment land, which came to be included in the scheme land of CPS 2, identified maximum plot ratio by a different mechanism.
There is authority for the proposition that where the literal meaning of the words used lead to an absurdity there is an ability for a Court to correct an apparent drafting mistake or oversight: see Riley v Parole Board of New South Wales (1985) NSWLR 606, 617 619; Peninsula Group Pty Ltd v RegistrarGeneral for the Northern Territory (1996) 136 FLR 8, at 14 15; New South Wales Crime Commission v Kelly [2003] NSWCA 245, at[17] [24]; Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642, at [5] [12], [19] [20], [24], [47].
As summarised by his Honour Edelman J in The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345, at [144] [145]:
… there have been cases where courts have read a legislative provision as if it contained additional words where the omission of those words could not be said to be a mere grammatical or drafting error, but that those occasions are not common. They are approached with caution. The High Court referred to the three conditions identified by Lord Diplock in Wentworth Securities Ltd v Jones:
(i)the court must be able to identify the precise purpose of the provision(s) in question;
(ii)the court must be satisfied that the drafter and Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose; and
(iii)the court must be abundantly sure of the substance of the words that Parliament would have used had the deficiency been detected before enactment.
Even these three conditions might not be sufficient. The conditions are not firm criteria. As Beech J explained in The Commissioner for Corrective Services v RAJ, 'in the end, the three conditions may be in the nature of guidelines to be considered in the process of statutory construction in accordance with conventional construction techniques'.
This is consistent with the remarks of French CJ, Crennan and BellJJ in Taylor v Owners Strata Plan No 1156 And Others [2015] HCA 9 (2015) 253 CLR 531 (Taylor), at [35] [40]. In particular, their Honours stated, at [38] [39]:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgement is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.
Lord Diplock's three conditions (as reformulated in Icno Europe Ltd v First Choice Distribution accord with the statements of principle in Cooper Brooks and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading [the relevant statutory provision] as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted[.](Citations omitted)
Their Honours Gageler and Keane JJ, in Taylor although in dissent on the ultimate outcome of the application of the appropriate principles of statutory interpretation, explained the task in this way, at [65] [66]: Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … But not always'. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. (Citations omitted)
In this case, and in the context of interpretation of a local planning scheme that has not been drafted by Parliamentary Counsel, the Tribunal is satisfied that cl 30(1)(b) of CPS 2 must be understood as referring to the starting or default maximum plot ratio, wherever specified.
The Plot Ratio Plan is, at least in relation to scheme land other than the normalised redevelopment land, the mechanism used in CPS 2 to identify the default, or starting, maximum plot ratio that applies to scheme land. The Scheme then provides for a number of different maximum plot ratios to be identified on a number of different plot ratio plans (see cl 3 of CPS 2). Those other plot ration plans provide for higher maximum plot ratios, which can be applied in certain circumstances (pursuant to cl 28 of CPS 2). It was necessary therefore, in cl 30(1)(b) of CPS 2 to identify which maximum plot ratio for a place was being referred to. It is apparent that it was identified that the maximum plot ratio that should be used for the purposes of determining whether land qualified as a donor site under cl 30(1)(b) of CPS 2 was the default, or starting maximum plot ratio.
In that context, and having regard to the legislative history, and to the purpose of cl 30 of CPS 2, it is appropriate to understand the reference in cl 30(1)(b) of CPS 2 to the maximum plot ratio specified on the Plot Ratio Plan as meaning, in effect, the default, or starting, maximum plot ratio for a site. In relation to the normalised redevelopment land, the default maximum plot ratio for that land is specified in LPS 26. The Tribunal is satisfied that there was a drafting oversight in the failure to expressly provide for what maximum plot ratio for a place means in cl 30(1)(b) of CPS 2 in relation to scheme land that does not have a maximum plot ratio specified in the Plot Ratio Plan. The Tribunal is satisfied that, applying the principles of statutory interpretation outlined above, cl 30(1)(b) of CPS 2 does not have the effect of limiting the ability to approve a place as a donor site to only that land that has a maximum plot ratio specified on the Plot Ratio Plan. In relation to the normalised redevelopment land, including the site, cl 30(1)(b) should be understood to refer to the default, or starting, maximum plot ratio specified in LPS 26.
The Tribunal is satisfied that it is, and was, open to approve the site as a donor site under cl 30(1) of CPS 2 if the requirements of that subclause, including the requirement that site cannot be developed to the maximum plot ratio of 1.5 as specified in cl 4.5.3 of LPS 26 without adversely affecting the cultural heritage significance of the place, its locality or any heritage area within which the site is located, are satisfied.
Maximum plot ratio
The second preliminary issue raises the question of what is the maximum plot ratio of the site that is to be applied for the purposes of determining the maximum amount of transferable plot ratio able to be transferred from the site.
The applicant points to the fact that the term 'transferable plot ratio' is not defined by reference to any particular maximum plot ratio that might apply to a site. The applicant submits that, in the absence of any such identification, the capacity to transfer 'transferable plot ratio' could only properly be confined to the upper limit of plot ratio capable of being achieved on a site. For scheme land other than the normalised redevelopment land that would be the maximum plot ratio specified in the Maximum Plot Ratio Plan. In relation to the normalised redevelopment land, that must be the provisions in LPS 26 that provide for an 'increase' in maximum plot ratio and specify the maximum increase available.
The applicant argues that cl 30(1)(b) of CPS 2 merely provides a trigger to invoke the right to apply for a transfer of plot ratio but does provide any basis for limiting the maximum amount of plot ratio able to be transferred as 'transferable plot ratio'. Rather, the applicant submits, the maximum transferable plot ratio should be determined by having regard to what would be the most likely development that could be undertaken on the site 'but for' the heritage building on the site.
The respondent submits that cl 4.5.3 of LPS 26 provides a discretion to increase plot ratio to a maximum of 2.5 provided that in any development having a plot ratio in excess of 1.5 (the default maximum plot ratio), not less than 50% of the excess floor area is dedicated to residential use. The respondent submits that the clear purpose of cl 4.3.5 of LPS 26 is to provide a plot ratio incentive in return for the inclusion of residential uses in a proposed development. In the absence of the satisfaction of the residential use proviso, there is no basis to apply the discretional maximum plot ratio of up to 2.5.
The respondent further submits that, having regard to cl 30(1)(b) of CPS 2, the concept of 'transferable plot ratio' must be linked to the default maximum plot ratio for a site rather than any increased maximum plot ratio that might apply.
The respondent also points to cl 28(3) of CPS 2, which refers to a combination of bonus plot ration under cl 28 and transferable plot ratio under cl 30 of CPS 2, and submits that this context indicates that the notions of transferable plot ratio and bonus plot ratio are separate and based on different maximum plot ratios.
The Scheme provides that, unless otherwise provided, the maximum plot ratio of development cannot exceed the maximum plot ratio specified in the Plot Ratio Plan: cl 27 of CPS 2. At cl 28 of CPS 2 provision is made for the local government to permit an increase in the maximum plot ratio for development by way of allowing bonus plot ratio. Clause 30 of CPS 2 provides for the approval of transfer of plot ratio in specified circumstances.
Although 'transferable plot ratio' is not defined by reference to whether the default maximum plot ratio or the bonus plot ratio applies, it is apparent from the context of the Scheme as a whole that it is the default maximum plot ratio that applies unless an increased maximum has been approved under cl 28 of CPS 2. In this context, the reference to 'plot ratio' in 'transferable plot ratio' should be understood as a reference to the default maximum plot ratio. This is the maximum plot ratio that applies as of right. It is only in certain specified circumstances, and at the discretion of the local government, that an increased, or bonus maximum plot ratio may be achieved.
In addition, as discussed above, the criteria for being eligible for approval as a donor site pursuant to cl 30 of CPS 2 focus on the default maximum plot ratio for the land. Reading the provisions of cl 30 as a whole, it must be some of that default maximum plot ratio that is able to be transferred as 'transferable plot ratio'.
Orders
The answers to the preliminary issues are:
1.The application concerning transferable plot ratio for the site is capable of approval under clause 30 of City of Perth City Planning Scheme No 2 even though the maximum plot ratio for the site is specified in City of Perth Local Planning Scheme No 26 and not in the Plot Ratio Plan of City of Perth City Planning Scheme No 2.
2.The maximum plot ratio of the site, some of which is available for approval as 'transferrable plot ratio' under cl 30 and cl 31 of City of Perth City Planning Scheme No 2 is 1.5.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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