KENNY and SHIRE OF CHAPMAN VALLEY
[2007] WASAT 21
•30 JANUARY 2007
KENNY and SHIRE OF CHAPMAN VALLEY [2007] WASAT 21
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 21 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:335/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 29/01/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | IAN KENNY SHIRE OF CHAPMAN VALLEY |
Catchwords: | Town planning Development application Dwelling house Recreation zone Preliminary issue Jurisdiction Whether proposed development is capable of approval |
Legislation: | Planning and Development Act 2005 (WA), s 238(4), s 252(1) Shire of Chapman Valley Town Planning Scheme No 1, cl 1.3.2(g), cl 1.7, cl 2.2, cl 2.2.1, cl 2.2.2, cl 2.2.4, cl 2.2.4(a), cl 2.2.13, cl 2.3.1, cl 2.3.2, cl 3.1.1(1), cl 3.1.1(2)(b), cl 5.3.2 |
Case References: | Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Marshall and City of Rockingham [2006] WASAT 249 Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent to refuse development approval for a dwelling house at Lot 6 Old Northampton Road, Nabawa is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KENNY and SHIRE OF CHAPMAN VALLEY [2007] WASAT 21 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 30 JANUARY 2007 FILE NO/S : DR 335 of 2006 BETWEEN : IAN KENNY
- Applicant
AND
SHIRE OF CHAPMAN VALLEY
Respondent
Catchwords:
Town planning - Development application - Dwelling house - Recreation zone - Preliminary issue - Jurisdiction - Whether proposed development is capable of approval
Legislation:
Planning and Development Act 2005 (WA), s 238(4), s 252(1)
Shire of Chapman Valley Town Planning Scheme No 1, cl 1.3.2(g), cl 1.7, cl 2.2, cl 2.2.1, cl 2.2.2, cl 2.2.4, cl 2.2.4(a), cl 2.2.13, cl 2.3.1, cl 2.3.2, cl 3.1.1(1), cl 3.1.1(2)(b), cl 5.3.2
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Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Ms S Ward (Acting Chief Executive Officer)
Solicitors:
Applicant : Hardy Bowen
Respondent : Shire of Chapman Valley
Case(s) referred to in decision(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Marshall and City of Rockingham [2006] WASAT 249
Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390
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Summary of Tribunal's decision
1 The Shire identified a preliminary issue as to whether a development application for a dwelling house is capable of approval in the Recreation zone under a local planning scheme.
2 The Tribunal determined that the development is not capable of approval, because a dwelling house is not listed as a permitted use in the part of the zoning table that relates to the Recreation zone and is not capable of approval under any other provision of the scheme. The proposal is not capable of approval as an innominate use, because it is specifically mentioned in the zoning table as a permitted use in other zones.
3 The application for review was dismissed and the decision of the Shire was affirmed.
Preliminary issue
4 The Shire of Chapman Valley (Shire or Council) has raised a preliminary issue for determination in planning review proceedings. The proceedings involve an application brought by Mr Ian Kenny, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire to refuse development approval for a dwelling house on Lot 6 Old Northhampton Road, Nabawa (site). The site is zoned "Recreation" under the Shire of Chapman Valley Town Planning Scheme No 1 (TPS 1 or Scheme). The preliminary issue is whether the proposed development is capable of approval in the Recreation zone under the Scheme.
5 The President has formed the opinion, pursuant to s 238(4) of the PD Act, that the application is likely to raise complex or significant planning issues with the result that the preliminary issue could be listed for determination by me.
Is the proposed development capable of approval?
6 Clause 2.2.1 of the Scheme states as follows:
"The [Zoning and Development] Table following this clause indicates, subject to the provisions of the Scheme, in particular clause 2.2.13, the uses permitted in the various zones and the
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- development standards that apply to various uses specified in the Table for each zone."
7 Clause 2.2.2 identifies four symbols that are used in the Zoning and Development Table, namely "P", "PS", "AP" and "IP", and states the meaning of each. "P" means "a use that is permitted if it complies with the relevant development standards" in the Scheme. "PS" means "a use that is permitted if special approval to it is given by the Council" and if it complies with conditions of approval and relevant development standards in the Scheme. "AP" means "a use that is permitted" if approval is given to it by the Council and it complies with any conditions of approval and relevant standards contained in the Scheme. "IP" means "a use that is not permitted unless such use is incidental to the predominant use of the land as determined by the Council".
8 The Zoning and Development Table is divided into separate parts for each of the 17 zones created by the Scheme. In relation to each zone, the Zoning and Development Table contains a policy statement, a list of "permitted uses", each of which is designated by one of the four symbols identified in cl 2.2.2, and development standards for certain of the permitted uses. "Dwelling House" is listed as a permitted use in three of the zones. In each case, the use is crossreferenced by the symbol "P". However, Dwelling House is not listed as a permitted use in the Recreation zone part of the Zoning and Development Table. Ten other land uses are listed as permitted uses in the Recreation zone.
9 The preliminary issue turns on the proper interpretation of cl 2.2.1 of the Scheme. The Tribunal's task is "to ascertain the legislative intention [of this clause] by reference to the language of the [Scheme] viewed as a whole": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 per Mason and Wilson JJ.
10 There are two clear textual indications in cl 2.2 of the Scheme that the term "permitted use" in the clause and in the Zoning and Development Table relevantly means a use that is permissible or capable of approval under the Scheme.
11 First, as noted earlier, cl 2.2.2 uses the word "permitted", in relation to a use, to refer not only to a use that is permitted if it complies with relevant development standards, but also to a use that is only permitted if approval is given to it by the Council.
12 Second, cl 2.2 uses the words "not permitted", in relation to a use, on three occasions to mean prohibited or not capable of approval.
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- The first is in the statement of the meaning of the symbol "IP" in cl 2.2.2 ("a use that is not permitted unless such use is incidental to the predominant use of the land as determined by the council"). The second and third instances occur in cl 2.2.4(a) and cl 2.2.13 which are in the following terms:
"2.2.4 Subject to clause 2.2.13, if the use of land for a particular purpose is not specifically mentioned in the zoning table and cannot reasonably be determined as falling within the interpretation of one of the use categories Council may:
(a) Determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted; or
(b) Determine by absolute majority that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the advertising procedures of Clause 5.2 in considering an application for planning consent.
…
2.2.13 Any use or development which constitutes or includes a nuclear activity is not permitted on land within the Scheme Area." (Emphasis added.)
14 Clause 2.2.1, therefore, provides that, subject to other provisions of the Scheme, "the uses [capable of approval] in the various zones … [are indicated] in the Table for each zone". Unlike other local planning schemes, TPS 1 does not expressly identify uses that are not capable of approval by a symbol such as "X" or by a blank space in the Zoning and Development Table at the crossreference between a particular use class and a particular zone. However, the clear and unmistakable implication from cl 2.2.1 and the Zoning and Development Table is that, subject to other provisions of the Scheme, a use that is not listed as a permitted use in the part of the Zoning and Development Table relating to a particular zone is not capable of approval in that zone. Consequently, cl 2.2.1
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- indicates that, subject to other provisions of the Scheme, a dwelling house is not capable of approval in the Recreation zone. A likely explanation as to why the Scheme does not use a symbol or a blank space to expressly identify uses that are not capable of approval is that, having been divided into parts for each zone, in order to have expressly identified uses that are not capable of approval, it would have been necessary for the Zoning and Development Table to list each of the approximately 106 land uses identified in the Scheme 17 times.
15 Mr Kenny advances essentially four arguments in support of his contention that the proposed development is capable of approval in the Recreation zone.
16 First, Mr Kenny submits that cl 2.3.1 of the Scheme "permits any Development (as defined under the Scheme) on land within the Recreation Zone provided the [Shire's] written approval is first had and obtained".
17 Clause 2.3.1 is in the following terms:
"Except as otherwise provided in this Clause, a person shall not carry out any development on land within the Recreation Zone, other than the erection of a boundary fence, without first applying for and obtaining the written approval of the Council."
18 Mr Kenny's submission is incorrect. The intent of cl 2.3.1 is twofold. First, the clause requires prior development approval of the Council for the carrying out of development in the Recreation zone. Second, it exempts the erection of a boundary fence from the requirement to obtain development approval. The clause does not say that anything satisfying the definition of "development" under the Scheme is permitted or capable of approval in the Recreation zone. Rather, it imposes a requirement to obtain prior development approval in order to carry out any development, other than a boundary fence, which is capable of approval in the zone under the Scheme.
19 Further, the definition of "development" in cl 1.7 of the Scheme, namely, that development "means the use or development of any land and includes the erection, construction, alteration or carrying out as the case may be, of any building, excavation or other works on any land" (emphasis added), does not assist Mr Kenny's argument. The words "any land" and "any building … on any land" emphasise that the definition captures the use and development of all land, including the erection, construction or alteration of all buildings. Consequently, cl 2.3.1
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- requires prior development approval for the use or development of all land, including the erection, construction or alteration of all buildings, other than a boundary fence, where the use or development is capable of approval in the zone under the Scheme.
20 Moreover, if Mr Kenny were correct that the definition of development and the terms of cl 2.3.1 permit the carrying out of any development within the Recreation zone provided that the Shire's written approval is obtained, it would render otiose the list of permitted uses in the Zoning and Development Table relating to the zone, allow approval, without the need for advertising, of five uses in the zone that are only permitted under cl 2.2 and the Table if the proposal has been advertised, and enable the carrying out, with approval, of any of the approximately 106 uses identified in the Scheme - from hospital to industry - hazardous to intensive agriculture - in the zone. Although the words "subject to the provisions of the Scheme" in cl 2.2.1 contemplate that other provisions of the Scheme could have the effect that uses not capable of approval under the Zoning and Development Table could nevertheless be capable of approval in a particular zone, the Table plays a central role in the scheme of TPS 1 in relation to the control of the development and use of land. It could not have been the legislative intention of cl 2.3.1 and of the definition of the term development to override the whole of the Table in relation to the Recreation zone, permit advertised development without advertising or enable approval to be granted for any of the myriad of defined land uses under the Scheme in the zone. Furthermore, cl 3.1.1(1) of the Scheme states that, subject to certain exceptions, "a person shall not commence or carry out development of any land zoned or reserved under the Scheme … without first having applied for and obtained the Planning Consent of the Council under the Scheme". If Mr Kenny's argument in relation to cl 2.3.1 were correct, it would follow that cl 3.1.1(1) would permit any development in any zone under the Scheme, provided that prior consent is obtained from the Council, irrespective of the permitted uses identified in the Zoning and Development Table.
21 The Tribunal recognises that cl 2.3.1 is arguably otiose, because cl 3.1.1(1) requires prior development approval for the carrying out of development in all zones and cl 3.1.1(2)(b) exempts the erection of a boundary fence from the obligation to obtain prior development approval in all zones in any case. As McMurdo P observed in the Court of Appeal of Queensland in Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 at [41], "[p]lanning instruments are often poorly drafted but courts must make
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- some sense of them" (referred to in Marshall and City of Rockingham [2006] WASAT 249 at [35]). Bearing his Honour's observation in mind, although cl 2.3.1 appears to be unnecessary, it serves to provide an introduction and context to the following subclauses which relate to the Recreation zone.
22 Mr Kenny's second argument is that cl 2.3.2 of the Scheme indicates that the Shire has "an exercisable discretion whether or not to grant planning consent" to the proposed development. Clause 2.3.2 is in the following terms:
"In considering whether to grant its approval, the Council shall have regard to the ultimate purpose intended for the land and, where that purpose is or includes the purposes of a public authority, the Council shall confer with the public authority before granting its approval." (Words emphasised by Mr Kenny in bold.)
23 However, cl 2.3.2 does not indicate that the Shire has an exercisable discretion in relation to a use which is not capable of approval under the Scheme. Rather, the clause has the effect that, if a proposed use is capable of approval under the Scheme, the Council is required to have regard to certain matters in the exercise of planning discretion. A proposed development cannot be the subject of an exercise of planning discretion if it is not capable of approval.
24 Mr Kenny's third argument is that "in any event, clause 2.2.4 clearly and unambiguously sets out the nature of the discretion available to be exercised by the [Shire] in the circumstances". Clause 2.2.4 is set out at [12] above.
25 However, cl 2.2.4 does not apply in this case, because the proposed dwelling house use is specifically mentioned in the Zoning and Development Table in relation to other zones. Clause 2.2 consistently refers to the Zoning and Development Table by using the definite article "the" and in the singular. Although the Table has separate parts for each of the 17 zones, it is a single table. As dwelling house is a permitted use specifically mentioned in the zoning table in relation to other zones, cl 2.2.4 does not assist Mr Kenny.
26 Moreover, a purposive interpretation of cl 2.2.4 arrives at the same result. The purpose of the clause is to provide flexibility in relation to innominate uses that are not specifically contemplated under the Scheme. A dwelling house is a use that is contemplated under the Scheme.
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27 The fourth argument advanced by Mr Kenny is based on cl 5.3.2 of the Scheme, which provides that, in determining an application for development approval, the Council is required to consider the purpose for which the land is reserved, zoned or approved for use under the Scheme, the purpose for which land in the locality is used, the orderly and proper planning of the locality and the preservation of the amenities of the locality. However, the clause only relevantly applies where a proposed development is capable of approval under the Scheme and an exercise of planning discretion arises. Where, as in the present case, a proposed use is not capable of approval under the Scheme, the Council does not have discretion to approve the application and cl 5.3.2 has no application.
28 The proposed development is not capable of approval under the Scheme. Consequently, the Shire (and the Tribunal on review) does not have discretion to approve the application.
Conclusion
29 The Tribunal has determined that the proposed development of a dwelling house on the site is not capable of approval under the Scheme, because it is not listed as a permitted use in the Recreation zone in the Zoning and Development Table and is not capable of approval under any other provision of the Scheme. The proposal is not capable of approval as innominate use under cl 2.2.4 of the Scheme, because it is specifically mentioned in the Zoning and Development Table as a permitted use in other zones. In consequence, the Shire (and the Tribunal on review) does not have discretion to approve the proposed development.
30 It follows that the application for review must be dismissed and the decision of the Shire to refuse development approval affirmed.
Orders
31 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent to refuse development approval for a dwelling house at Lot 6 Old Northampton Road, Nabawa is affirmed.
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- I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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