Marshall v The Honourable Graham Kierath MLA, Minister for Planning

[2001] WASCA 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   MARSHALL & ANOR -v- THE HONOURABLE GRAHAM KIERATH MLA, MINISTER FOR PLANNING [2001] WASCA 70

CORAM:   PIDGEON J

IPP J
WALLWORK J

HEARD:   6 DECEMBER 2000

DELIVERED          :   13 MARCH 2001

FILE NO/S:   CIV 1907 of 2000

BETWEEN:   INGRID MARSHALL

RAYMOND MARSHALL
Applicants

AND

THE HONOURABLE GRAHAM KIERATH MLA, MINISTER FOR PLANNING
Respondent

Catchwords:

Prerogative writs - Application to construct second dwelling - Proposed construction prohibited by Town Planning Scheme - Whether allowed by Metropolitan Region Scheme - Whether right of appeal to Minister

Legislation:

Town Planning and Development Act 1928

Result:

Town Planning Scheme applied - there was no discretion in City to approve
Writs refused

Representation:

Counsel:

Applicants:     In person

Respondent:     Mr J A Thomson

Solicitors:

Applicants:     In person

Respondent:     State Crown Solicitor

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

Nil

Case(s) also cited:

City of Bayswater v Minister for Family and Children's Services [2000] WASCA 151; (2000) 108 LGERA 182

Costa v Shire of Swan [1983] WAR 22

Cutler v Wandsworth Stadium [1949] 1 All ER 544

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

Pearse v South Perth [1968] WAR 130

1. PIDGEON J:  I agree with the reasons to be published by Wallwork J and with the orders proposed.

2. IPP J:  I have read the reasons of the Hon Justice Wallwork.  I am in agreement with those reasons and have nothing further to add.

3. WALLWORK J:  The applicants apply for writs of certiorari and mandamus to enforce what they say is their right to have the Minister for Planning consider an appeal by them from a deemed refusal by the City of South Perth of their application for approval to construct a second dwelling on a block of land owned by them in Susan Street, which street is within the City of South Perth.

4. The applicants claim that by virtue of the uniform general by‑laws of June 1961 their block was declared to be suitable for the construction on it of two dwellings.  Further, that since that time, although a number of town planning schemes have become operative in South Perth, they have retained their right to apply for approval for the relevant development pursuant to the provisions of the metropolitan region scheme, which they say are still applicable.

5. The applicants contend that the presently operative Town Planning Scheme in South Perth (No 5) is complimentary to, and not a substitute for, the provisions in the Metropolitan Region Scheme and that as their application for approval to commence development has been deemed to have been refused by the City of South Perth, they now have a right of appeal to the Minister pursuant to cl 33(1) and cl 33(2) of the Metropolitan Region Scheme. 

Background

1. The relevant application was lodged with the City of South Perth on 5 August 1999.  It was an application to construct a second dwelling on the block for "a separate family occupancy".  The second dwelling was to be separate from the already existing dwelling and both dwellings would have street frontages.  The Council of the City of South Perth took the view that it could not consider the application as the proposed construction was prohibited by its Town Planning Scheme No 5. 

2. The applicants accept that the construction of the proposed dwelling would not be in conformity with the R.15 density code which the City says is applicable to their land pursuant to Town Planning Scheme No 5.  However, the applicants say that the density code does not, in all the

circumstances, have the effect of preventing their application from succeeding.  They claim that the City has a discretion to allow the application pursuant to the provisions of the Metropolitan Region Scheme which they claim is still applicable. 

1. The applicants concede that if the provisions of Town Planning Scheme No 5 govern the construction of the building on their land, the Council would not have had a discretion to allow the application to be approved because the proposed building would not comply with the density code.  However, they say that as their application is in accord with the Metropolitan Region Scheme, a discretion to allow the development does exist because of cl 30 of the Metropolitan Region Scheme. 

2. The applicants claim that as their applications have been refused, they have a right of appeal to the Minister pursuant to cl 33 of the Metropolitan Region Scheme. 

3. The applicants contend that they originally had had a right to apply to build a duplex on their block pursuant to cl 11.4 of the Uniform Building By‑Laws. They say that the town planning schemes which the City of South Perth later introduced did not take away their rights under cl 11 of the by‑laws because nothing in the schemes, including the presently relevant scheme No 5, has been inconsistent with their right to construct a duplex pursuant to the building by‑laws. The applicants claim that the 1989 Town Planning (Buildings) Uniform General By‑Laws have succeeded the earlier by‑laws (now repealed) and that their rights under the original by‑laws still prevail. 

Inconsistency

1. The applicants recognise that cl 6 of the City of South Perth Town Planning Scheme No 5 provided that "the provisions of this scheme shall have effect, notwithstanding any by‑law for the time being in force in the scheme area, and where the provisions of the scheme are inconsistent with the provisions of any by‑law, the provisions of the scheme shall prevail".  However, they say that there is no relevant inconsistency.  They contend that the relevant coding provisions within the Town Planning Scheme No 5, including the R codes, are a different concept from that of the zoning concept under the Metropolitan Region Scheme; that there has been no form of density coding in the Metropolitan Region Scheme and that when the Metropolitan Region Scheme was gazetted in 1963 there had been no relevant density coding.  At that time, their right to construct a duplex under the 1961 by‑laws (No 34) was operative.  They claim that none of the succeeding town planning schemes of the City of South Perth has taken that right away because of any inconsistency. 

2. Although the applicants concede that the density code under the scheme covers the area in which their block is situated, they say that the relevant density code is not a development standard; that their land has not been "zoned for some other use" within the meaning of cl 25 of the Metropolitan Region Scheme; that their right to build a duplex still subsists under the 1974 by‑laws, even though they were later repealed and replaced by other by‑laws; that this is because there is no inconsistency between the density code system and the zoning concept which existed before the density codes became relevant to their block.

3. In my view, even if the by‑laws would otherwise still allow for a duplex to be constructed, the applicants' proposition that the density codes and the zoning concepts are quite different in nature and that therefore there is no inconsistency within the meaning of cl 6 of Town Planning Scheme No 5 is not correct.  This is because two different concepts can be inconsistent with one another - for example, peace and war - and in the particular circumstances of this case, the density coding under the relevant town planning scheme does not allow for the construction of a duplex on the applicants' block as the area is too small. 

4. Where under a town planning scheme, as in this case, a dwelling cannot be erected because of a density code, there is an inconsistency with a by‑law that would allow such a construction.  In that event, pursuant to cl 6 of Town Planning Scheme No 5, the provisions of the scheme are to prevail and the applicants cannot succeed with their applications for the prerogative writs, assuming the provisions of the town planning scheme are valid.

5. Note also that cl 21 of the Metropolitan Region Scheme text provides:

   "Where any provision of a town planning scheme of a local authority that has been duly made subsequent to this scheme having the force of law, and which has been approved by the Minister and published in the Government Gazette, is at variance with any provision of this Part, the provision of the town planning scheme of the local authority shall prevail."

The Town Planning Scheme

1. The relevant town planning scheme (No 5) has the force of a statute of Parliament pursuant to s 7 of the Town Planning and Development Act1928 as amended (the Act). Clause 7 of the town planning scheme provides that the Residential Planning Codes shall be read as part of the scheme. This is in accord with s 7(5)(b) of the Act and with the Residential Planning Codes which were prepared under s 5AA of the Act and published in the Government Gazette (WA) on 13 December 1991 (AB 271).

2. Clause 7(3) of the scheme provides "unless otherwise provided in the scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes". 

3. Clause 1.1 of the general provisions of the Residential Planning Codes in the Government Gazette of 13 December 1991 provides:

   "1.1PRELIMINARY

   1.1.1These Residential Planning Codes shall apply to single houses, grouped and multiple dwellings and special purpose dwellings in zones where residential development is permitted.  All buildings for such uses shall accord with the provisions applicable to the code assigned by the scheme to the particular locality within which the building is to be located. 

   1.1.2Where these codes take effect, those provisions of the Town Planning (Buildings) Uniform General By‑Laws 1989 (as amended) which purport to control the matters contained within these codes shall not have effect … "

4. The applicants accept that under the Residential Planning Codes the R‑Code Density for their land is "R.15" - see par 46 of their document dated 7 July 2000 and par 63 of their document dated 25 July 2000.  They also accept that minimum lot size for a relevant dwelling under the R.15 Density Code is 550 m² and that their lot has an area of 1034 m² - par 72 of their document dated 7 July 2000.  Therefore, the relevant lot does not have the required area to have two dwellings constructed on it.

5. The Residential Planning Codes do not contain any power of exemption where the minimum area of a lot does not allow for two dwellings on it.  Clause 5 of the Residential Planning Codes (Government Gazette, 13 December 1991) has the effect that any variations of the Residential Planning Codes must be incorporated in the text of the relevant town planning scheme.  The relevant town planning scheme (No 5) does not vary the Residential Planning Codes so as to allow the two buildings to be constructed in this case.

6. The hearing of these applications before this Court was conducted on the basis that if the "R.15" density code relevantly applies to the applicants' block, the Council would have no discretion to grant planning consent.  This is because in the copy of the scheme at 201 of the book, pursuant to 87(2)(c), there is no discretion to allow a departure from the requirements of the codes.  I note that the copy of the scheme in the Government Gazette of 25 September 1986, which was also supplied to the Court, has that provision in cl 87(2)(b). 

7. In both documents which the Court has, there is therefore no discretion in the City to grant approval for an application which does not comply with the requirements of the Residential Planning Codes. 

8. The refusal of the application by the City of South Perth was in accordance with the Town Planning Scheme No 5 and did not involve any element of discretion.  For those reasons, the City could not have approved the application.  There is therefore no permissible appeal to the Minister (see s 37(a)(i), s 37(a)(ia) and s 37(c)).

9. For the above reasons, in my view, the applications for the writs must be refused.