LANDCORP and CITY OF STIRLING

[2011] WASAT 202

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   LANDCORP and CITY OF STIRLING [2011] WASAT 202

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   7 NOVEMBER 2011 AND

30 NOVEMBER 2011

DELIVERED          :   15 DECEMBER 2011

FILE NO/S:   DR 302 of 2011

BETWEEN:   LANDCORP

Applicant

AND

CITY OF STIRLING
Respondent

Catchwords:

Town planning - Strategic planning - Structure plan - Preliminary issue - Statutory interpretation - Whether adoption by local government of structure plan proposing subdivision and development of land is required for structure plan to have legal effect if it is endorsed by the Western Australian Planning Commission - 'Modern approach to statutory interpretation' - Context and purpose - Practical and commonsense interpretation of planning schemes - Whether remedial or beneficial legislation - Words and phrases: 'adopt'

Legislation:

City of Stirling Local Planning Scheme No. 3, cl 1.2, cl 1.5, cl 2.4, cl 4.2, cl 4.3.1, cl 10.2, cl 6A.2.2, cl 6A.3.2, cl 6A.4.1, cl 6A.7.1, cl 6A.7.2, cl 6A7.3, cl 6A.7.4, cl 6A.8.1, cl 6A.9, cl 6A.9.2, cl 6A.10, cl 6A.12, cl 6A.14, cl 6A.17.1, Sch 10
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 87(4), s 135, s 157
State Administrative Tribunal Act 2004 (WA), s 91, s 91(1)

Result:

Adoption of proposed local structure plan by the respondent (or the Tribunal on review) under cl 6A.9 of the City of Stirling Local Planning Scheme No. 3 (LPS 3) is required in order for the structure plan to have legal effect and become operative pursuant to cl 6A.12 of LPS 3 if the structure plan is endorsed by the Western Australian Planning Commission pursuant to cl 6A.10 of LPS 3

Category:    B

Representation:

Counsel:

Applicant:     Mr PJ McQueen with Ms CN Gleeson

Respondent:     Mr A Roberts

Solicitors:

Applicant:     Lavan Legal

Respondent:     McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

AB and State of Western Australia & Anor [2011] HCA 42; (2011) 85 ALJR 1233

Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84

Chiefari v Brisbane City Council [2005] QPELR 500

Galloway and Associates and City of Melville [2007] WASAT 238

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Tribunal was called upon to determine and to make a declaration in relation to a preliminary issue as to whether the City of Stirling is required to adopt a local structure plan that proposes the subdivision and development of land in the Development Zone.  The preliminary issue turned on whether the proper interpretation of provision of the local planning scheme accords with the literal meaning of the words or a different meaning derived from context and purpose.

2. The Tribunal determined, having regard to 'the modern approach to statutory interpretation', under which the meaning of a legislative provision is to be interpreted in the context of the legislation as a whole and by reference to its evident purpose, and, in particular, that planning schemes are to be read as a whole and applied in a practical and commonsense way, that the literal interpretation of the provision does not reflect its proper interpretation.  The Tribunal considered that five provisions of the planning scheme in particular form the legislative context for the interpretation of the provision in question and indicate that the adoption of the proposed structure plan by the City of Stirling is required for it to have effect.

3. The Tribunal also considered that this interpretation accords with the evident legislative purpose of the planning scheme to vest responsibility for the regulation and control of land use and development with the City of Stirling.

4. The Tribunal made a declaration accordingly.

Introduction

1. The Tribunal is called upon to determine a preliminary issue as to whether the City of Stirling (City or Council) is required to adopt a local structure plan that proposes the subdivision and the development of land in order for it to take effect if it is endorsed by the Western Australian Planning Commission (Commission).  The preliminary issue turns on whether the proper interpretation of a provision of City of Stirling Local Planning Scheme No. 3 (LPS 3 or Scheme) accords with the literal meaning of the words or a different meaning derived from context and purpose.

Background

1. This proceeding involves an application brought by LandCorp, pursuant to cl 6A.17.1 of LPS 3, for review of the decision of the Council to refuse to adopt the 'Carine Vision Local Structure Plan' (proposed structure plan) in relation to Lot 9378 on Deposited Plan 213725 which is located at No 322 Marmion Avenue, Carine (site).  The site is zoned Urban under the Metropolitan Region Scheme and Development under LPS 3.

2. Clause 4.2 of LPS 3 states that the objectives of each of the zones set out in that clause 'are intended to provide the context for development within the respective zones'.  Clause 4.2.3 of LPS 3 sets out the following objectives for the Development Zone:

   a)To provide for coordinated development through the application of a comprehensive structure plan to guide subdivision and development.

   b)To avoid the development of land for purposes likely to compromise its future development for purposes, or in a manner likely to detract from the amenity or integrity of the area.

3. Clause 4.3.1 of LPS 3 states as follows:

   Table 1 ­ Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones.  The permissibility of any uses is determined by cross reference between the list of use classes on the left hand side of the Table 1 ­ Zoning Table and the list of zones at the top of the Table 1 ­ Zoning Table.

4. Table 1 ­ Zoning Table (Zoning Table) of LPS 3 states as follows in relation to the permissibility of all listed use classes in the Development Zone:

   Development and use of land is to be in accordance with an approved Structure Plan prepared and adopted under part 6A.

5. Part 6A of the Scheme comprises cl 6A.1 to cl 6A.17 inclusive.

6. The site also falls within a Development Area under cl 6A.2.2 and Sch 10 of LPS 3 which is referred to as 'Carine TAFE, Carine'.  Clause 6A.3.2 of LPS 3 states as follows:

   The subdivision and development of land within a Development Area is to be generally in accordance with any structure plan that applies to that land.

7. Clause 6A.4.1 of LPS 3 states as follows:

   The Council is not to:

   a)Consider recommending subdivision; or

   b)Approve development

   of land within a Development Area unless there is a structure plan for the Development Area or for the relevant part of the Development Area.

8. On 23 September 2010, LandCorp lodged the proposed structure plan with the City pursuant to cl 6A.7.1 of LPS 3.  The proposed structure plan proposes subdivision and development of the site for the purposes of:

   (a)a retirement village;

   (b)residential aged care;

   (c)mixed use; and

   (d)medium density residential development.

9. Clause 6A.7.2 of LPS 3 requires the Council, within seven days of receiving a proposed structure plan which proposes the subdivision of land, to forward the proposed structure plan to the Commission.  Under cl 6A.7.3 and cl 6A.7.4 of LPS 3, the Commission is required to provide 'comments to the Council as to whether it is prepared to endorse the proposed structure plan with or without modifications' within 30 days of receiving the proposed structure plan.  On 11 October 2010, the City forwarded a copy of the proposed structure plan to the Commission pursuant to cl 6A.7.2 of LPS 3.  On 3 December 2010, the Commission wrote to the City setting out its comments on the proposed structure plan, pursuant to cl 6A7.3 and cl 6A.7.4 of LPS 3, including that it would be prepared to endorse the proposed structure plan without modification, subject to the proposed structure plan's compliance with Commission policy.

10. Clause 6A.8.1 of LPS 3 provides for advertising of a proposed structure plan.  The proposed structure plan was advertised and LandCorp provided the City with written comments, supporting documentation and recommended modifications to the proposed structure plan in response to submissions received.

11. Clause 6A.9.1 and cl 6A.9.2 of LPS 3 states as follows:

    6A.9.1The Council is to consider all submissions received and within 60 days of the latest date specified in the notice or advertisement for the making of submissions is to:

    a)Adopt the proposed structure plan, with or without modifications; or

    b)Refuse to adopt the proposed structure plan and, where the proposed structure plan was submitted by an owner, give reasons for this to the owner.

    6A.9.2a)     In making a determination under clause 6A.9.1, the Council is to have due regard to the comments and advice received from the Commission in relation to the proposed structure plan; and

    b)If the Commission requires modifications to the proposed structure plan, the Council is to consult with the Commission prior to making a determination under clause 6.A.9.1 [sic ­ 6A.9.1].

12. At its meeting held on 2 August 2011, the Council refused to adopt the proposed structure plan.

13. Clause 6A.10 of LPS 3 states as follows:

    6A10.1If the proposed structure plan proposes the subdivision of land, then within 7 days of making its determination under clause 6A.9.1, the Council is to forward the proposed structure plan to the Commission for its endorsement.

    6A.10.2As soon as practicable after receiving the proposed structure plan, the Commission is to determine whether to endorse the proposed structure plan.

    6A.10.3The Commission is to notify the Council of its determination under clause 6A.10.2.

14. Clause 6A.12.1 of LPS 3 states as follows:

    A structure plan comes into effect:

    a)    Where the structure plan proposes the subdivision of land, on the day on which it is endorsed by the Commission pursuant to clause 6A.10.2; or

    b)    On the day on which it is adopted by the Council under clause 6A.9.1 in all other cases.

15. On 18 August 2011, the City forwarded the proposed structure plan to the Commission.

16. On 30 August 2011, LandCorp commenced this proceeding for review of the Council's refusal to adopt the proposed structure plan.  At the first directions hearing in the proceeding, held on 16 September 2011, the parties identified the following preliminary issue for determination by the Tribunal:

    Whether the adoption of the proposed structure plan by the Council (or the Tribunal on review) under cl 6A.9 of LPS 3 is required in order for the proposed structure plan to have legal effect and become operative pursuant to cl 6A.12 of LPS 3 if the structure plan is endorsed by the Commission pursuant to cl 6A.10 of LPS 3.

17. LandCorp specifically sought a declaration pursuant to s 91 of State Administrative Tribunal Act 2004 (WA) (SAT Act) in relation to the preliminary issue. Section 91 of the SAT Act authorises the Tribunal, constituted by a judicial member, to:

    … make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.  (Section 91(1) of the SAT Act).

Is the adoption of the proposed structure plan by the Council (or the Tribunal on review) required?

1. The determination of the preliminary issue turns on the proper interpretation of cl 6A.10.1 of LPS 3 and, in particular, on the meaning of the expression 'its determination under clause 6A.9.1'.  Relying on a literal interpretation of these words, LandCorp submitted that the 'determination' involves either a decision under para a) of cl 6A.9.1 to '[a]dopt the proposed structure plan with or without modifications' or a decision under para b) of cl 6A.9.1 to '[r]efuse to adopt the proposed structure plan … '.  LandCorp also submitted that, because the Council's 'determination' referred to in cl 6A.10.1 involves either its 'adoption' or its 'refusal to adopt' the proposed structure plan, the Council's determination of a structure plan that proposes the subdivision of land under cl 6A.9.1 is not a 'conclusive determination'.  LandCorp submitted:

   The determination by the Commission under cl 6A.10.2 as to whether to endorse the structure plan is accordingly the only effective conclusive determination of the structure plan, and the decision of the Council under cl 6A.9.1 is intended to be only advisory in nature.

2. The City conceded that, 'on its face', that is, on a literal interpretation, the expression 'its determination under clause 6A.9.1' in cl 6A.10.1 appears to encompass either a decision under para a) or a decision under para b) of cl 6A.9.1.  However the City contended that a literal interpretation should not be adopted, because, when the expression is read in the legislative context of other relevant provisions of the Scheme and having regard to the legislative purpose of LPS 3 to vest responsibility for regulation and control of land use and development with the City, the words 'its determination under cl 6A.9.1' refer only to a decision under para a) of cl 6A.9.1 to adopt a proposed structure plan, with or without modifications.

3. As the High Court of Australia has recently confirmed in AB and State of Western Australia & Anor [2011] HCA 42; (2011) 85 ALJR 1233 (AB) at [10]:

   What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes [Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69]; [1998] HCA 28]. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397; [1955] HCA 27], Dixon CJ referred to the importance of the context, general purpose, policy and fairness of a statutory provision, as guides to its meaning. The modern approach to statutory interpretation uses 'context' in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed [CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2]. Judicial decisions which preceded the [legislation] may be relevant in this sense, but the task remains one of the construction of the [legislation].

4. Moreover, while under s 87(4) of the Planning and Development Act 2005 (WA) (PD Act) LPS 3 'has full force and effect as if it were enacted by [the PD Act]', the terms of a planning scheme:

   … will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, 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 and Associates and City of Melville [2007] WASAT 238 at [41]).

5. Having regard to these authorities, the Tribunal accepts the City's submission that, when read in the context of other relevant provisions of the Scheme and with reference to legislative purpose, on its proper interpretation, the expression 'its determination under clause 6A.9.1' in cl 6A.10.1 of LPS 3 refers only to a decision under para a) of cl 6A.9.1 to adopt a proposed structure plan, with or without modifications, and not to a decision under para b) of cl 6A.9.1 to refuse to adopt the proposed structure plan.  Furthermore, having regard to context and purpose, the Tribunal rejects LandCorp's characterisation of the Council's role of adopting or refusing to adopt a structure plan proposing subdivision and development under cl 6A.9.1 as 'intended to be only advisory in nature' and that 'the determination by the Commission under clause 6A.10.2 as to whether to endorse the structure plan is … the only effective conclusive determination of the structure plan … '.

6. There are five provisions of LPS 3 that provide the relevant legislative context for the interpretation of cl 6A.10.1 of the Scheme.

7. First, under cl 4.3.1 and the Zoning Table (see [8] ­ [9] above), 'development and use of land is to be in accordance with an approved Structure Plan prepared and adopted under part 6A [of LPS 3]' (emphasis in bold added).  The term 'adopted' is a reference to 'adoption' by the Council under cl 6A.9.1 of the Scheme.  'Adoption' of a structure plan under the Scheme is a different act, by a different authority, to 'endorsement' of a structure plan under cl 6A.10 of the Scheme.  Therefore, the determination of which land uses are permissible on the site requires the 'adoption' of a structure plan by the Council under cl 6A.9 of the Scheme.  It is not sufficient for the proposed structure plan to be endorsed by the Commission.

8. As noted earlier, the proposed structure plan proposes both subdivision and development of the site for the purposes referred to at [13] above. Clause 4.3.1 and the Zoning Table of LPS 3 indicate that the Council's 'adoption' of the proposed structure plan is essential for development and use of the site for these purposes to be able to take place. Furthermore, while it would be theoretically possible for a proposed structure plan to propose only subdivision, and not also development and use of land, subdivision generally facilitates development and use of land. This point is emphasised by objective (a) of the Development Zone, namely:

   To provide for coordinated development through the application of a comprehensive structure plan to guide subdivision and development.  (Emphasis in bold added).

9. Mr PJ McQueen, who appeared with Ms CN Gleeson on behalf of LandCorp, emphasised that cl 4.3.1 of LPS 3 states that the indication of the permissibility of uses in the Zoning Table is 'subject to the provisions of the Scheme'.  Mr McQueen submitted, therefore, that 'references in the column for the "Development Zone" [are] subject to the processes outlined elsewhere in the Scheme, particularly Part 6A'.  However, as Mr A Roberts submitted on behalf of the City, 'the qualifying words "subject to the provisions of the Scheme" refer to other provisions of LPS 3 concerning the use of land', rather than to 'processes'.  Furthermore, the words 'subject to the provisions of the Scheme' in cl 4.3.1 of LPS 3 could not, relevantly, in relation to the Development Zone, refer to processes outlined in Part 6A of the Scheme, because the specific provision in the Zoning Table in relation to the Development Zone itself refers to the preparation and adoption of a structure plan under those processes.

10. Referring to the words 'an approved Structure Plan' in the provision in relation to the Development Zone in the Zoning Table, Mr McQueen also submitted that, because a structure plan can be 'approved' by endorsement by the Commission under Part 6A of the Scheme, 'the use of the word "adopted" is a loose one and cannot be interpreted in the strict manner as proposed by the [City]'.  However, the provision in the Zoning Table specifically states 'adopted under part 6A'.  Part 6A only uses the term 'adopted' to refer to the Council's process of approval.  Moreover, it is understandable that, in the context of the regulation of land use, the provision would refer to adoption of a structure plan by the Council.  Clause 1.2 of LPS 3 states that the Council 'is the responsible authority for implementing the Scheme' and cl 1.5 states that the purposes of the Scheme include to:

    …

    c)zone land in the Scheme area for the purposes defined in the Scheme; [and]

    d)control and guide land use and development;

    …

11. Second, cl 10.2 of LPS 3 states, in part, as follows:

    The Council in considering an application for planning approval is to have due regard to such of the following matters as are in the opinion of the Council relevant to the use or development the subject of the application ­ 

    …

    f)any Local Planning Policy adopted by Council under clause 2.4, any heritage policy statement for a designated heritage area adopted under clause 7.2.2, and any other structure plan, detailed area plan or guidelines adopted by the Council under the Scheme;  

    …

    (Emphasis in bold added).

1. As in relation to the provision of the Zoning Table for the Development Zone, the word 'adopted' in cl 10.2 f) of the Scheme is a reference to adoption of a proposed structure plan by the Council under cl 6A.9.1 of LPS 3, rather than endorsement of the proposed structure plan by the Commission under cl 6A.10 of LPS 3.  Indeed, cl 10.2 f) of LPS 3 is even more explicit than the Zoning Table, because it uses the words 'adopted by the Council under the Scheme'.

2. Mr McQueen submitted that 'cl 10.2 f) is of little assistance in the construction of Part 6A', because cl 6A.3.2 requires that the subdivision and development of land within a Development Area 'is to be generally in accordance with any structure plan that applies to the land', whereas cl 10.2 f) 'suggests that a structure plan is merely a relevant consideration in considering a planning application'.  Mr McQueen also emphasised the use of the words 'any other' before 'structure plan' in cl 10.2 f), and submitted that 'the ejusdem generis principle would lead to the conclusion that the words "any other structure plan" would be limited to structure plans of the same or similar nature to the other preceding matters'.  However, as noted earlier, the provisions of town planning schemes, which are largely the work of town planners, not parliamentary counsel, are to be applied in a practical and commonsense, and not in an overly technical, way.  The policies that precede 'any other structure plan' in cl 10.2 f) of the Scheme, namely local planning policies adopted under cl 2.4 and heritage policy statements adopted under cl 7.2.2, are not 'structure plans', and there are no structure plans of the same or similar nature to these policies that are capable of adoption by the Council under the Scheme.  Rather, the only structure plan capable of adoption by the Council under the Scheme is a structure plan referred to in Part 6A.  Furthermore, although strictly unnecessary in light of cl 6A.3.2, given that planning schemes are largely the work of town planners, it is understandable that, in a general provision setting out matters for consideration in the determination of development applications, the Scheme would refer to structure plans adopted by the Council (under Part 6A).

3. The reference to 'any other structure plan … adopted by the Council under the Scheme' in cl 10.2 f) of LPS 3 is, therefore, a further indication that the proposed structure plan, which proposes development as well as subdivision of the site, requires adoption by the Council (or the Tribunal on review) under cl 6A.9 of the Scheme to have legal effect and become operative, even if endorsed by the Commission.

4. Third, cl 6A.9.1 of the Scheme authorises the Council to make either of two possible decisions, namely to '[a]dopt the proposed structure plan, with or without modifications' or to '[r]efuse to adopt the proposed structure plan'.  Clause 6A.9.1 does not give the Council a third option, in the case of a structure plan that proposes the subdivision of land, to make a recommendation or to give advice to the Commission that it should or should not endorse such a structure plan.  LandCorp's proposed interpretation of cl 6A.10.1 of LPS 3 asserts, in effect, that cl 6A.9.1 confers such a third option when a structure plan proposes subdivision of land, which the clause does not do.  Moreover, LandCorp's submission asserts, in effect, that the word 'adopt' in cl 6A.9.1 can have two different meanings, depending on whether the structure plan proposes or does not propose the subdivision of land; when the structure plan proposes subdivision, LandCorp contends that 'adopt' means 'give advice or make a recommendation', whereas if the structure plan does not propose subdivision, LandCorp contends that 'adopt' means 'make an effective determination'.  The verb to 'adopt' relevantly means 'to choose for or take to oneself; make one's own by selection or assent' and 'to vote to accept' (The Macquarie Dictionary, 5th ed, 2009, page 21).  Except, where the legislation indicates to the contrary, a legislative term would normally be interpreted as having the same meaning for all purposes.  There is no indication to the contrary in the Scheme.  Hence, the term 'adopt' means vote to accept, select or assent, for all purposes in cl 6A.9.1 of the Scheme.  As Mr Roberts submitted:

   Council's act of adopting a proposed structure plan cannot have a different legal character depending on whether the proposed structure plan proposes subdivision or not.  It cannot have an advisory character in the case of a proposed structure plan proposing subdivision and a determinative character when the proposed structure plan does not propose subdivision.  Adoption must have a consistent legal character regardless of the content of the proposed structure plan.

5. Fourth, cl 6A.14 of LPS 3 authorises the Council to vary an operative structure plan and states, in cl 6A.14.3, as follows:

   If the Council varies a structure plan by resolution, and the variation proposes the subdivision of land, the Council is to forward a copy of the variation to the Commission within 10 days of making the resolution for its endorsement.

6. Thus, the Council is authorised by cl 6A.14 to vary a structure plan, including where the variation proposes the subdivision of land, although in such a case the Scheme also requires the endorsement of the variation by the Commission in order for the variation to have effect: cl 6A.14.6 a).

7. As the City submitted:

   If Council's support is required for a variation of a structure plan proposing subdivision, it is logical that its support for the structure plan itself is also required.

8. Finally, cl 6A.17.1 confers a right of review to the Tribunal on 'an owner who has submitted a proposed structure plan under cl 6A.7.1' in relation to:

   …

   b)Any determination of the Council:

   i.     To refuse to adopt a proposed structure plan (including a deemed refusal); or

   ii.    To require modifications to a proposed structure plan that are unacceptable to that owner.

9. As the City submitted:

   It would be absurd for cl 6A.17.1 b) i) to create a review right with respect to a refusal by Council to adopt a proposed structure plan proposing subdivision, if the Council's adoption of the proposed structure plan was unnecessary for it to come into effect.

10. Each of the five provisions of LPS 3 referred to above form part of the legislative context for the interpretation of cl 6A.10.1 of the Scheme.   This context indicates that the expression 'its determination under clause 6A.9.1' in cl 6A.10.1 refers only to a decision under para a) of cl 6A.9.1 to adopt a proposed structure plan, with or without modifications, and therefore that the adoption of the proposed structure plan by the Council (or the Tribunal on review) under cl 6A.9 of LPS 3 is required in order for it to have legal effect and become operative, even if it is endorsed by the Commission.

11. This interpretation also accords with the evident legislative purpose of the Scheme to vest responsibility for the regulation and control of land use and development with the City. This legislative purpose is evident from the provisions of cl 1.2 and cl 1.5 of LPS 3 set out at [32] above and, particularly in relation to the Development Zone, from the provision of the Zoning Table set out at [9] above.

12. Mr McQueen relied on provisions of the PD Act in relation to subdivision control to support an argument that the Commission is the sole decision­maker that has authority to determine a structure plan proposing subdivision under the Scheme. It is correct, as Mr McQueen submitted, that the Commission is the responsible authority for determining subdivision applications under s 135 of the PD Act and that the City is restricted to making a recommendation to the Commission in relation to a subdivision application; see Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 at [60] ­ [66]. It is also correct, as submitted by Mr McQueen, that under s 157 of the PD Act, a subdivision approval of the Commission 'is to be taken to be approval by the responsible authority under the planning scheme of the carrying out of works necessary to enable the subdivision of the land' that are shown on the subdivision plan or required by a condition of subdivision approval. However, it does not follow that from the acceptance of these submissions that, as Mr McQueen argued:

    … the Commission is the [sole] authority that determines a structure plan proposing the subdivision of land, and that the decision of the Council in respect of such a structure plan (such as a refusal to adopt such a structure plan) is advisory only and the adoption by the Council of the structure plan is not a necessary pre­requisite for the structure plan to be endorsed by the Commission.

13. This submission is contrary to the legislative intention that the Council is responsible for the regulation and control of land use and development, because it contemplates that an important part of this role is incidentally removed from the Council where a proposed structure plan guides not only development and land use, but also proposes the subdivision of land.

14. If a proposed structure plan guides development and land use (but does not propose the subdivision of land), then it is clear that the Council has a determinative function of adoption or refusal to adopt the structure under cl 6A.9.1 of LPS 3.  There is no intention disclosed in the Scheme to incidentally remove this role from the Council where a structure plan proposes the subdivision of land in addition to guiding development and land use, such as in the case of the proposed structure plan.

15. Certainly, given the role of the Commission as the responsible authority in relation to subdivision control in Western Australia, it is understandable that the Scheme would require the Council to seek the Commission's comments as to whether it is prepared to endorse a proposed structure plan which proposes the subdivision of land (cl 6A.7.2 ­ cl 6A.7.4) and the ultimate endorsement of such a structure plan by the Commission (cl 6A.10).  However, it does not follow from the Commission's role as the responsible authority in relation to subdivision control that the Scheme would seek to incidentally remove an important part of the Council's role as the responsible authority in relation to the regulation and control of development and land use under the Scheme.  To the contrary, the terms of the Scheme, and in particular cl 4.3.1, the Zoning Table, cl 10.2 f) and objective a) of the Development Zone in cl 4.2.3 (which contemplates that 'coordinated development' requires 'a comprehensive structure plan to guide subdivision and development') evidences on intention that the Council is to have a determinative role in relation to the proposed structure plan.

16. Furthermore, it does not follow from the fact that a subdivision approval is deemed by s 157 of the PD Act to be a development approval for the carrying out of works shown on the plan of subdivision or required by a condition of subdivision approval that the Scheme would seek to incidentally remove the Council's determinative role in relation to the adoption of a proposed structure plan, simply because the structure plan proposes the subdivision of land, as well as guiding the development or use of the land. The development authorised by s 157 of the PD Act is of an incidental character to the carrying out of a subdivision, such as earthworks or the erection of a retaining wall to create a subdivisional lot. Section 157 of the PD Act avoids the need to obtain development approval for subdivision works. It does not authorise substantive development, such as the construction of a building on a subdivisional lot.

17. Mr McQueen also submitted that the interpretation advanced by LandCorp would not deny the Council its role as the authority responsible for the regulation and control of land use and development under the Scheme, as development approval would be required from the Council before development or use of land in the Development Zone could take place.  However, in the Development Zone, the regulation and control of land use and development under the Scheme includes, materially, 'provi[ding] for coordinated development through the application of a comprehensive structure plan to guide subdivision and development' (cl 4.2.3) and determining the permissibility of land uses by adoption of a structure plan under Part 6A of the Scheme (cl 4.3.1 and Zoning Table).  LandCorp's proposed interpretation of cl 6A.10.1 is contrary to the purpose of LPS 3 to vest regulation and control of land use with the City.

18. Finally, Mr McQueen relied on the following statement in AB at [24]:

    It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a 'fair, large and liberal' interpretation.

19. Mr McQueen submitted that Part 6A of LPS 3 is 'beneficial legislation', because it enables a landowner to have to deal with only one planning authority in relation to a proposed structure plan, namely the Commission, if the proposed structure plan proposes the subdivision of land (even if it also guides the development or use of land), or the Council, if the proposed structure plan guides the development or use of land (but does not propose the subdivision of land).

20. In Statutory Interpretation in Australia (Lexis Nexis, 7th ed, 2011), DC Pearce and RS Geddes state, at [9.2], as follows:

    A remedial or beneficial provision is one that gives some benefit to a person and thereby remedies some injustice: Estate of McComb [1999] 3 VR 485 at 490. The most commonly cited examples are social welfare and pensions legislation, workers' compensation Acts, safety legislation and so on. However, any legislation that is taken to make a change in existing law or adopt new provisions that are advantageous to an individual or to the public is likely to be regarded as falling within the description of remedial or beneficial …

21. However, Part 6A of the Scheme cannot be characterised as 'beneficial or remedial legislation'.  The purpose of Part 6A is to enable structure plans to be prepared and approved so as to guide subdivision, development and use of land in the Development Zone/Development Areas.  As noted earlier, the objectives of the Development Zone include 'To provide for coordinated development through the application of a comprehensive structure plan to guide subdivision and development' and cl 4.3.1 and the Zoning Table provides that 'development and use of land is to be in accordance with an approved Structure Plan prepared and adopted under part 6A'.  Further, as also noted earlier, cl 6A.3.2 of LPS 3 requires 'the subdivision and development of land within a Development Area is to be generally in accordance with any structure plan that applies to that land'.  Part 6A is not beneficial or remedial legislation, but rather is facilitative of the preparation and approval of structure plans which are necessary to comprehensively guide subdivision, development and use of land in the Development Zone and in a Development Area.  Part 6A of LPS 3, including cl 6A.10.1, is intended to achieve the public purpose of coordinated development in the Development Zone/Development Areas, rather than to give a benefit to landowners or remedy an injustice.  Moreover, these provisions do not appear to constitute a change in the law or a new set of provisions that are advantageous to an individual or the public in the relevant sense.

22. It follows that, having regard to context and purpose, the proper interpretation of the words 'its determination under cl 6A.9.1' in cl 6A.10.1 of LPS 3 does not accord with the literal interpretation of those words and is restricted to a decision by the Council to adopt a proposed structure plan that guides the development and use and proposes the subdivision of land, with or without modifications, under cl 6A.9.1 a) of the Scheme.

Conclusion

1. On its proper interpretation, the words 'its determination under cl 6A.9.1' in cl 6A.10.1 of LPS 3 refer only to a decision by the Council under cl 6A.9.1 a) of the Scheme to adopt the proposed structure plan, with or without modifications.  The proposed structure plan, which proposes the subdivision and guides the development and use of the land for various purposes, requires a positive determination by both the Council (or the Tribunal) and the Commission, in order to have effect.  The preliminary issue should be answered accordingly.

Orders

1. The Tribunal makes the following orders:

   1.Pursuant to s 91 of the State Administrative Tribunal Act 2004 (WA), the Tribunal makes the following declaration:

   The adoption of the proposed local structure plan by the respondent (or the Tribunal on review) under cl 6A.9 of the City of Stirling Local Planning Scheme No. 3 (LPS 3) is required in order for the structure plan to have legal effect and become operative pursuant to cl 6A.12 of LPS 3 if the structure plan is endorsed by the Western Australian Planning Commission pursuant to cl 6A.10 of LPS 3.

   2.The proceeding is adjourned to a directions hearing at 11 am on 13 January 2012 in order to make programming orders.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE D R PARRY, DEPUTY PRESIDENT