| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LLOYD and SHIRE OF BUSSELTON [2011] WASAT 129 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : EDITED REASONS DELIVERED ORALLY ON
30 MAY 2011 FILE NO/S : DR 50 of 2010 BETWEEN : BARRY LLOYD ROSSLYN LLOYD
Applicants
AND
SHIRE OF BUSSELTON
Respondent
Catchwords: Town planning - Development application - Sewerage and water regulatory provisions - Preliminary issue - Concurrence of Department of Health required under Scheme - Whether such agreement reached - Tribunal held that agreement with Department not reached - Whether respondent nevertheless had discretion to approve proposed development - Whether a 'standard' prescribed by the Scheme - Conceptual basis and purpose of such regulatory provisions - Construction and interpretation of planning instruments - Words and phrases: 'development standard'
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Legislation: Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2010)
Shire of Busselton District Planning Scheme No 20, cl 30, cl 34(1), cl 45, cl 58, cl 59, Pt 5, Pt 6 Result: Preliminary question answered 'Yes' Category: B
Representation: Counsel:
Applicants : Mr I Rogers
Respondent : Mr A Roberts
Solicitors:
Applicants : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Hagger and the Development Assessment Commission [2006] SAERDC 56
Marshall and City of Rockingham [2006] WASAT 249
Michell Hodgetts & Associates Pty Ltd v Resource Management and Planning Appeal Tribunal [2010] TASSC 61
O'Donovan and Town of Vincent [2005] WASAT 120
Optus Mobile Pty Ltd v City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11
Valhalla Village Pty Ltd v Wyong Shire Council [2008] NSWLEC 1476
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The Tribunal was called upon to answer a preliminary question concerning the effect of an apparently mandatory requirement under the Shire of Busselton District Town Planning Scheme No 20 for the Department of Health's concurrence with the Shire of Busselton in respect of 'adequate and appropriate provision' for the on-site disposal of effluent in connection with the development of certain land at Yallingup. 2 The Tribunal was of the view that, in the circumstances, such agreement between the Shire of Busselton and the Department of Health had not in fact eventuated. However, the Tribunal held that on a true construction of the provision it was 'a standard prescribed by the Scheme' and thus could be modified by the Shire of Busselton under the Shire of Busselton District Town Planning Scheme No 20. 3 The Tribunal said: [The clause] appears to be a regulatory mechanism to significantly involve the Department of Health in an assessment and consultation process that may lead to satisfaction on the part of the principal regulator (that is, the local authority) that adequate and appropriate arrangements with respect to sewage disposal and related matters are or will be in place. Thus, the starting point (but not necessarily the end point, if no agreement is reached) is the Department's concurrence as to the proposals submitted. In my view this is the clause's underlying aim or purpose. 4 This meant that the proposed development may still be capable of approval notwithstanding that the Department of Health had not agreed with the Shire of Busselton that, to date, adequate and appropriate provision had been made for the onsite disposal of effluent. 5 What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
Introduction 6 The following issue was agreed between the parties as one that should be determined by the Tribunal as a preliminary question: Can development approval be granted under [the] Shire of Busselton District Town Planning Scheme No 20 (Scheme) for a grouped dwelling on No 48 (Lot 26) Hammond Road, Yallingup[,] if the requirement under [cl] 59(a) of the Scheme, for the [Department of Health] to agree with the (Page 4)
Council that adequate and appropriate provision can be made for the onsite disposal of effluent, is not first satisfied? 7 Clause 59 of the Shire of Busselton District Town Planning Scheme No 20 (Scheme), as far as relevant, is as follows: SEWERAGE CONNECTION REQUIREMENTS If no reticulated sewerage system is available, development in excess of a single house is not permitted unless: (a) the [Department of Health] agrees with the Council that adequate and appropriate provision can be made for the onsite disposal of effluent; or (b) [not relevant]. 8 For the reasons that follow, the answer to the preliminary question is: 'Yes'.
Factual background 9 The Tribunal has been assisted by the provision of a statement of agreed facts and a bundle of agreed documents. The matter has been determined upon the documents, including consideration of lengthy written submissions received from both parties' counsel. 10 The agreed statement of facts, edited in minor respects, is as follows: 1. The applicants are the registered proprietors of [Lot 26 (No 48)] Hammond Road, Yallingup ([s]ite). 2. The [s]ite is zoned 'Residential' under the respondent's [Scheme] and has a density coding of R10. The [s]ite is located in the Yallingup Special Character Area to which [Sch] 6 and [cl] 30 of the [Scheme] are relevant. 3. The [s]ite has an area of 989 [square metres] and is developed with a single house. The [s]ite is not serviced by reticulated sewerage. 4. On 27 October 2009, the respondent received a development application for approval of an additional dwelling on the [s]ite which, given the existing dwelling, was classified as a grouped dwelling for the purposes of the [Scheme] and the Residential Design Codes [of Western Australia (2010)]. An on-site effluent disposal system was proposed as part of the development. 5. The Shire, by letter dated 30 October 2009, requested additional information from the applicant[s] in relation to the development (Page 5)
application. The applicant[s] subsequently submitted a revised development application by letter dated 23 November 2009. 6. The respondent sought the agreement of the Department of Health (Department) to the proposed on-site effluent disposal system, as required by [cl] 59(a) of the [Scheme] ... 7. The Department advised the respondent by letter dated 11 December 2009 that the proposed effluent disposal system was 'not adequate nor appropriate to serve the additional dwelling' and would not be approved. 8. The respondent then refused the development application by letter to the applicants' representative (Michael Swift)[,] dated 1 February 2010[,] on various grounds, including the refusal of the Department to approve the proposed on-site effluent disposal. 9. On 25 February 2010, the applicants commenced proceedings in the State Administrative Tribunal seeking a review of the respondent's decision. 10. On 22 July 2010[,] the applicants sought approval from the Department for the proposed effluent disposal system under the Health (Treatment of Sewage and Disposal of Effluent Liquid Waste) Regulations 1974 (WA) (Regulations). 11. The Department, by letter to the applicant[s] dated 13 August 2010, refused to grant approval under the Regulations to the proposed effluent disposal system. The applicants by letter to the Department dated 15 September 2010 sought internal review of the refusal by the Department's Executive Director Public Health (Executive Director). 12. By letter to the applicant[s] dated 11 October 2010[,] the Executive Director determined that the original refusal should stand. The principal reason identified for upholding the original decision was that approval of the proposed effluent disposal system would be contrary to the provisions of the Draft Country Sewerage Policy, in particular that the requirements for an exemption under [s] 5.1 of the policy were not met so as to justify an exemption from the requirement for reticulated sewerage. 13. In his decision letter, the Executive Director confirmed that, at a technical level, the onsite waste water system proposed should operate effectively and that it had the capacity to comply with the regulations. However, the Executive Director stated that the proposed group dwelling would set a precedent for other residents within the district and throughout the State, and would contravene the policy and risk it being circumvented. (Page 6)
Answer to preliminary question is to be found in certain Scheme provisions 11 In my view, the answer to the preliminary question turns mainly upon the proper interpretation and effect of the following clauses of the Scheme. Taking them in the order that they appear in the Scheme, they are as follows. 12 First, there is cl 34(1) which deals with the discretion to modify development standards, a clause which is found in Pt 5 of the Scheme dealing with 'Building Standards and Particular Zoning Requirements'. That clause provides, so far as is relevant, as follows (emphasis added): DISCRETION TO MODIFY DEVELOPMENT STANDARDS (1) Except for development in respect of which the Residential Planning Codes apply under this Scheme, if a development the subject of an application for planning approval does not comply with a standard prescribed by the Scheme or respective policy pursuant to the Scheme with respect to minimum lot sizes, building height, setbacks, site coverage, car parking, landscaping and related matters, the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied … 13 In my view, the phrase in cl 34(1) 'does not comply with a standard prescribed by the Scheme' is a stand-alone provision and is not to be read down or limited by the other parts of the first paragraph of cl 34(1), unless they specifically apply to the relevant case, which, here, they do not. There is no reason, in principle, to so limit the clause, and such a reading as I have suggested in such a case as this promotes and gives effect to the sub-clause's evident purpose and intent. (See also the discussion on interpretative principles, below.) 14 Next, there is cl 45 which deals with the respondent's duty to, in effect, ensure adequate water supplies and facilities for the removal or disposal of sewage. This clause is also to be found in Pt 5 of the Scheme. 15 Clause 58 of the Scheme deals with variations and exclusions of the Residential Design Codes of Western Australia (2010) (Codes) (which we need not dwell on). Clause 59 of the Scheme (reproduced above) deals with sewerage connection requirements. Both of these clauses are found in Pt 6 of the Scheme dealing with 'Specific Residential Provisions'. (Page 7)
16 I pause to observe that I read cl 59 as a particular formulation of the duty or obligation otherwise expressed in cl 45, and this is so, notwithstanding that the clauses appear in adjoining parts of the Scheme. 17 Finally, there is the Yallingup Special Character Area found in Sch 6 which deals with 'Special Character Areas' (see item 2). The application of these special character areas is governed by cl 30 of the Scheme which, in effect, provides for the other parts of the Scheme to yield where specifications in Sch 6 are inconsistent with those parts.
The parties' arguments 18 In summary, the respondent's arguments, in relation to the preliminary question, were as follows. First, cl 59 of the Scheme applies to the proposed development. Secondly, the agreement contemplated by or under cl 59 as between the respondent and the Department of Health (Department) has not, in point of fact, eventuated. Thirdly, the respondent contends that, consequently, neither the respondent (nor this Tribunal on review) can grant development approval. 19 And, so the respondent contended: neither cl 30 applying Sch 6; nor cl 58 dealing with the Code variations; nor cl 34 dealing with the variation of development standards, have any relevant operation to displace the effect, in such circumstances, of cl 59 of the Scheme. 20 The applicants' arguments in response, in broad outline, are as follows. First, the totality of exchanges between the respondent and the Department show, in point of fact, relevant agreement within the meaning of cl 59 of the Scheme. Secondly, in the alternative, if cl 59 were being 'avoided' despite some level of agreement, this was the result of the improper or incorrect application of the Draft Country Sewage Policy, whether by the respondent 'acting under dictation' or otherwise. 21 Thirdly, the applicants contend that, in any event, cl 34 of the Scheme applies because either cl 59 is inconsistent with Sch 6, or it is a standard prescribed within the Scheme and may therefore be varied pursuant to cl 34 of the Scheme.
Relevant principles of interpretation 22 In my view, there are several principles of statutory interpretation that need to be considered and applied in the resolution of this issue of construction. Speaking generally, they are as follows. (Page 8)
23 The first is the need to give effect to the Scheme as an instrument having the force of law. Thus, for example, the ordinary rules of statutory interpretation governing the resolution of any apparent 'inconsistency' within an instrument as between, for example, the general and the specific, will be applicable to the extent necessary. 24 Secondly, the instrument must be interpreted having regard to the actual words used, whilst attention is also to be directed as to whether those words have any defined or specialist meaning. Next, regard must be had to both a scheme's purpose or purposes and its regulatory context whilst assuming a level of coherence about the instrument taken as a whole. 25 However, these interlocking tasks of statutory interpretation must be subject to the overarching recognition that as regards town planning schemes, they have often not been drafted by lawyers, and, further, that they must be interpreted in a practical and common sense way. 26 Or, as I have suggested elsewhere, the Scheme must be read as a whole and applied in a practical and common sense, and not overly technical way in a fashion that would best achieve its evident purpose: see Marshall and City of Rockingham [2006] WASAT 249 at [34] - [35]; and Optus Mobile Pty Ltd v City of Stirling [2008] WASAT 238; (2008) 60 SR (WA) 11 at [35] - [37].
Analysis 27 In my view, there is nothing whatever, either express or implied, in Sch 6 (whether taken alone or together with, say, cl 58 of the Scheme) that suggests that the obligation found in cl 45, as it is specifically expressed in cl 59, is not applicable to this development. In short, there is no textual inconsistency, displacement or other indication in the Scheme such that the specific obligations under cl 59 should be nullified, departed from or modified in any relevant sense. 28 Secondly, there is no evidence whatever that the respondent and the Department have relevantly 'agreed' with each other within the meaning of cl 59 of the Scheme. In actual fact - and I so find - it is patently clear that both authorities have, for whatever reason, and notwithstanding some suggestions of the possible technical adequacy of the proposals put forward by the applicants, agreed that the proposed sewage arrangements for the subject land are not adequate and appropriate under cl 59 of the Scheme. (Page 9)
29 The question then is whether cl 59 of the Scheme can be regarded as a 'development standard' that may be relevantly modified so as to lead to the possibility of approval, notwithstanding such non-compliance. This is, I think, a slightly more difficult issue to resolve but, on balance, I think that cl 34 is applicable to cl 59. This is for the following reasons. 30 First, conceptually, water supply, sewage and related disposal arrangements are items that may be ordinarily characterised as matters of or related to a standard of development. As a consequence, they are matters, in the usual course, regulated by the imposition of conditions on development or subdivision. 31 I give three examples, selected more or less at random from other jurisdictions, which generally illustrate the conceptual norm of such provisions. If we, say, look at Hagger and the Development Assessment Commission[2006] SAERDC 56, reference is made, at [32], to a specified principle ('principle 22') of the zoning there under consideration, zoning which was related to development in a flood zone. 32 The principle provided that land division (that is, subdivision) for the purpose of creating an allotment to accommodate an existing dwelling should not occur unless the requirements of the Health Commission and the local government for waste water and effluent disposal for permanent occupation of dwellings were met or were provided for in the development application. 33 Next, Valhalla Village Pty Ltd v Wyong Shire Council [2008] NSWLEC 1476, at [47], refers to a local environment plan which provided that: ... Council shall not grant development consent unless arrangements satisfactory to the council have been made for the provision of water and sewer services. 34 Finally, in Michell Hodgetts & Associates Pty Ltd v Resource Management and Planning Appeal Tribunal [2010] TASSC 61 Evans J noted, at [20] (emphasis added): ... As already mentioned, the Scheme's objectives in relation to subdivisions in the residential zone include ensuring that each lot has appropriate sewerage and water services. The acceptable standard for these services in the residential zone is connection to a reticulated sewerage system and connection to a reticulated water supply of a specified pressure ... (Page 10)
35 These are, as I have noted, examples of the perhaps 'universal' conceptual scope of these type of provisions, which essentially aim, despite variations in language, to ensure that the relevant authorities' standards for public health are maintained at both the subdivision and the development stages. 36 Further, to this end, cl 59 of the Scheme appears to be a regulatory mechanism to significantly involve the Department in an assessment and consultation process that may lead to satisfaction on the part of the principal regulator (that is, the local authority) that adequate and appropriate arrangements with respect to sewage disposal and related matters are or will be in place. Thus, the starting point (but not necessarily the end point, if no agreement is reached) is the Department's concurrence as to the proposals submitted. In my view, this is the clause's underlying aim or purpose. 37 This process is, as I have said, in furtherance of the obligation under cl 45 of the Scheme. In my view, it is unlikely that the Department (an external organisation), absent very clear language, was to be given what amounts to an effective and final veto on this issue as to whether these planning standards were or could ever be met. This is especially so in the light of the existence of the Department's own statutory regulatory framework (see above), operating in parallel, and which is separately administered by them. 38 Moreover, read the way that I have suggested, nothing in the standard suggests some 'absolute prohibition' on development if it were not to be met: cf O'Donovan and Town of Vincent [2005] WASAT 120 at [39].
Conclusion 39 Thus, reading the critical clause in a practical, common sense way that recognises both its conceptual basis and its evident purpose, leads to an interpretation that it is a standard prescribed by the Scheme within the meaning of cl 34 and thus capable of being relevantly modified so as to achieve the aim of 'adequate and appropriate provision [being] made for the on-site disposal of effluent'. 40 The preliminary question will therefore be answered 'Yes' and the matter adjourned for directions with Judge Parry.
Orders 41 The orders of the Tribunal were as follows: (Page 11)
1. The preliminary question is, for the reasons given, answered: 'Yes'. 2. The matter is adjourned for directions into the Class 2 directions list at a time to be fixed by notice in writing on 17 June 2011. 3. A copy of the transcript of the reasons for decision is to be made available to the parties as soon as is practicable. |