MASTAGLIA and CITY OF COCKBURN

Case •

[2021] WASAT 154

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   MASTAGLIA and CITY OF COCKBURN [2021] WASAT 154

MEMBER:   DR S WILLEY, SENIOR MEMBER

HEARD:   7 SEPTEMBER 2021

DELIVERED          :   3 DECEMBER 2021

FILE NO/S:   DR 278 of 2020

BETWEEN:   DANIEL JOHN MASTAGLIA

First Applicant

SINDY MASTAGLIA

Second Applicant

AND

CITY OF COCKBURN

Respondent


Catchwords:

Town planning - Enforcement - Written Direction - Whether development unauthorised - Deemed Provisions - Effect of Deemed Provisions - Residential Design Codes - Local development plan - Single house - No unauthorised development - No authority to issue Written Direction

Legislation:

Approvals and Related Reforms (No 4) (Planning) Act 2010 (WA), s 64
Approvals and Related Reforms (No 4) (Planning) Bill 2009 (WA)
Building Act 2011 (WA)
City of Cockburn Town Planning Scheme No 3, cl 4.2.2, cl 5.2, cl 5.2.2, cl 6, cl 6.2.6.3, cl 6.2.10, cl 6.2.14, cl 6.2.14.4, cl6.2.15.1, cl6.2.15.2(f), cl 6.2.15.5, cl 6.2.15.7, cl 8.2.1, cl 8.2.1(b), cl 8.2.1(j), Pt 5, Pt 8, Sch 11, Sch A, cl 61(1), cl 61(1)(n), Table 9
Interpretation Act 1984 (WA), s 18
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), reg 77, reg 79, reg 79(1), reg 79(2), reg 90(2), Sch 2, cl 27(1), cl 46, cl 46(b), cl 47(d), cl 48(1)(c), cl 48(1)(c)(i), cl 56(1), cl 56(2), cl 61(1), cl 61(1)(c), cl 67(h)
Planning and Development Act 2005 (WA), s 68(1)(a), s 73A(2A), s 214, s 214(3), s 255, s 256, s 257B, s 257B(2), s 257B(3), Div 1, Pt 5, Pt 13
Planning Regulations Amendment Regulations 2020 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 27(2)
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 2.1.3, cl 5.1.3, cl 5.3.1, cl 7.3.1, cl 7.3.2, Pt 2, Pt 4, Pt 5, Pt 7

Result:

Preliminary issue determined

Category:    B

Representation:

Counsel:

First Applicant : H Jackson SC
Second Applicant : H Jackson SC
Respondent : P Gillet

Solicitors:

First Applicant : Cullen Macleod Lawyers
Second Applicant : Cullen Macleod Lawyers
Respondent : McLeods

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

2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339

Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333

Brikmakers (A Division of BGC (Australia Pty Ltd) and City of Swan [2021] WASAT 66; (2021) 102 SR (WA) 314

Cann and Shire of Augusta-Margaret River [2021] WASAT 22

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Commonwealth v Baume (1905) 2 CLR 405

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Dao Ji Association and City of Gosnells [2020] WASAT 10

Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306

Gartside v Inland Revenue Commissioners (UK) [1986] AC 553

Landcorp and City of Stirling [2011] WASAT 202

Lenz Pty Ltd v Shire of Serpentine Jarrahdale [2017] WASC 191

Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368

Otago Pty Ltd and City of Cockburn [2021] WASAT 27

Prentice v Nugan Packing Co Pty Ltd (1950) 81 CLR 558

Presiding Member of Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89; (2018) 241 LGERA 1

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Puma Energy Australia v City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1

Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132

Sanders v City of South Perth [2019] WASC 226

Sunland Group Limited v Gold Coast City Council [2021] HCA 35

Taylor v Owners of Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. Part 13 of the Planning and Development Act 2005 (WA) (PD Act) deals with 'enforcement and legal proceedings'. Division 1 of Pt 13 deals with 'enforcement'. Section 214 of the PD Act enables a 'responsible authority' to issue a 'written direction' on an 'owner or any other person' in relation to 'development' undertaken in contravention of, inter alia, a planning scheme.  The 'written direction' may require any unauthorised uses to cease and/or for any physical works to be remedied. 

  2. However, for a responsible authority to issue a written direction, a threshold planning requirement must first be met. That is, the relevant use and/or physical works must be 'development' that requires approval under, in this instance, a planning scheme. That jurisdictional fact must exist before the responsible authority's powers under Div 1 of Pt 13 are enlivened.

  3. It is against that backdrop that this preliminary issue arises. 

  4. Sindy and Daniel Mastaglia (together, the Applicants) have two (related) applications for review before the Tribunal.  The first is DR 278 of 2020 and arises from a written direction (Direction) issued by the City of Cockburn (Respondent) on 19 November 2020. 

  5. The Direction alleges that the Applicants have undertaken development (in the form of erecting a three storey single dwelling (Dwelling)) at 4 Madras Link, North Coogee (Land) in contravention of the City of Cockburn Town Planning Scheme No 3 (TPS 3). The Applicants applied for a review of the Direction pursuant to s 255 of the PD Act.

  6. The second application, which is not the focus of these reasons, is DR 109 of 2021 and relates to the Respondent's refusal of an application for retrospective planning approval on 20 May 2021 (Application).  The Application relates to the Dwelling the subject of the Direction.

  7. What is ultimately in issue between the parties is that there is an exposed parapet wall on the eastern common boundary of the Land.  That exposed wall has not been finished so as to match the external walls on the remainder of the Dwelling (in circumstances where the adjoining owner of the common boundary has not agreed to the wall being left in an 'unfinished' state).  The Respondent says the unfinished wall constitutes unauthorised development for the purposes of TPS 3.     

  8. In summary, the preliminary issue before me is whether, by reason of the unfinished wall, the Dwelling that has been erected on the Land constitutes 'development' that requires approval under TPS 3.  If I find that the Dwelling is not development requiring approval under TPS 3, then it follows the Respondent had no jurisdiction to issue the Direction. 

  9. The consequence is then that the Application (that was refused by the Respondent) is unnecessary.  The effect of that would be to render the proceeding in DR 109 of 2021 inutile because, standing in the shoes of the Respondent, the Tribunal lacks jurisdiction on the basis that no approval for the Dwelling under TPS 3 was required. 

  10. The preliminary issue was framed in the following terms:

    Was development approval required for the construction of the dwelling [on the Land] because the finish to the external wall on the eastern boundary of the Property does not comply with the 7th dot point of the Design Elements of the relevant Local Development Plan and, no approval having issued, does the [Respondent], and the Tribunal on review, therefore have jurisdiction to issue a Direction under s 214 of the [PD Act] requiring such compliance?

  11. For the reasons that follow, I find that the Dwelling did not require development approval under TPS 3 at the time it was constructed.  Therefore, there was no unauthorised development to which the Direction could properly address. 

Background

  1. The parties filed the following agreed facts.

  2. The Applicants are the registered proprietors of the Land.  The Land is within the City of Cockburn.

  3. TPS 3 applies to the Land which is located within Development Area 22 (DA 22) as provided for in cl 5.2 and Table 9 of TPS 3.

  4. Pursuant to Item 1 of the relevant provisions of Sch 11 to TPS 3 (as it then was), a Structure Plan was prepared for DA 22.  The Structure Plan was endorsed pursuant to cl 6.2.10 of TPS 3 (as it then was) by the Tribunal on 20 May 2010.

  5. Pursuant to Items 13 and 14 of Sch 11 to TPS 3, a Detailed Area Plan (DAP) was prepared for DA 22 which:

    a)was approved pursuant to cl 6.2.15.5 of TPS 3 (as it then was) by the Respondent on 22 October 2010; and

    b)pursuant to cl 6.2.15.7 of TPS 3 (as it then was), 'constitutes a variation of the structure plan'.

  6. Pursuant to cl 6.2.14 of TPS 3 (as it then was), a variation to the Structure Plan was prepared for DA 22 which was endorsed pursuant to cl 6.2.14.4 by the Western Australian Planning Commission (WAPC) on 19 December 2016.

  7. Perforce of reg 79(1) and reg 79(2) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations), the DAP continues to have effect as a Local Development Plan (LDP).

  8. On 25 June 2019, the Respondent:

    a)as responsible authority under TPS 3, granted development approval DA19/0366 for the construction of a boundary fence on the Land; and

    b)granted a building permit BP19/0798 for the construction of a dwelling (Class 1a) on the Land subject to conditions that included requiring compliance with development approval DA19/0366.

  9. On 26 February 2020 the Respondent, as 'permit authority' under the Building Act 2011 (WA), granted a building permit (BP20/0301) for the carrying out of additions and alterations to a dwelling (Class 1a), being the addition of a balcony and terrace extension, on the Land subject to conditions (none of which are relevant for present purposes).

  10. In the case of both building permits (BP19/0798 & BP20/0301):

    a)save for para (b) below, and some minor areas of tiling, the approved plans show the external finish of the development as rendered and painted masonry; and

    b)Sheet 7 of the approved plans included Elevation 4 which showed a view looking west with a 'Boundary Wall' marked 'Face Bwk' (that is, face brickwork); and

    c)the approved plans show the wall located on the eastern boundary of the Land as being setback at least 2.5 metres (being, either 2.595 metres or 2.597 metres) from the front (southern) boundary of the Land.

  11. In the case of BP19/0798, Sheet 7 of the plans attached to the approved energy efficiency report by Thermate dated 26 March 2019 (Energy Efficiency Report) included Elevation 4 which showed a view looking west with a 'Boundary Wall' marked 'Rendered'.

  12. The works have been completed in accordance with the building permits (save that the eastern face of the boundary wall on the eastern boundary of the Land is not 'rendered' as shown on Sheet 7 of the plans attached to the Energy Efficiency Report).

  13. As I have explained, on 19 November 2020, the Respondent issued the Direction, purportedly under s 214(3) of the PD Act, which required the Applicants to 'alter the Development' (being the Dwelling) within 60 days of the Notice 'as specified in the Third Schedule', specifically:

    Apply a rendered finish to the Wall [defined as 'the exposed parapet wall on the eastern common boundary of the Land'] and paint the Wall so that the Wall matches the external walls of the remainder of the Dwelling.

  14. On 16 December 2020, the Applicant lodged an application for review in relation to the Direction.

  15. On 9 February 2021, the Applicant lodged the Application (seeking retrospective approval for the un-rendered and unpainted eastern face wall).  The Application was refused on 20 May 2021 and, as stated, that refusal forms the basis of review DR 109 of 2021.

Nature of the proceeding

  1. A review under s 255 of the PD Act arises in the Tribunal's review jurisdiction.[1]  My task is therefore to make the correct and preferable decision at the time of the decision upon the review.[2] 

Applicable legal principles

[1] Section 17, State Administrative Tribunal Act 2004 (WA) (SAT Act).

[2] Section 27(2) SAT Act; Presiding Member of Southern Joint Development Assessment Panel v DCSC PtyLtd [2018] WASCA 213; (2018) 54 WAR 89; (2018) 241 LGERA 1, [102] (Buss P, Murphy JA, Mitchell JA)

  1. TPS 3 commenced on 20 December 2002 and continues as a 'local planning scheme' pursuant to s 68(1)(a) of the PD Act. TPS 3 is to be read and applied in accordance with the orthodox canons of construction.[3]

    [3] Brikmakers (A Division of BGC (Australia) Pty Ltd) and City of Swan [2021] WASAT 66; (2021) 102 SR (WA) 314 [30].

  2. The primary object of statutory construction is to construe the relevant provisions such that they are consistent with the language and purpose of all the provisions of the statute.[4]  In Sunland Group Limited v Gold Coast City Council, a recent planning case before the High Court, Gordon J observed that the relevant duty is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.[5]

    [4] 2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339 [35] (Smith J) (2 Thomas Road); see also Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306 [46] (Buss P, Murphy JA & Beech J agreeing).

    [5] Sunland Group Limited v Gold Coast City Council [2021] HCA 35 [18] (Gordon J); citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384, [78].

  3. Importantly, TPS 3 is to be construed in accordance with its evident town planning purpose.[6]

    [6] Cann and Shire of Augusta-Margaret River [2021] WASAT 22 [70]; see also Landcorp and City of Stirling [2011] WASAT 202 [26].

  4. By reason of s 18 of the Interpretation Act 1984 (WA) (Interpretation Act), a construction that would promote the purpose or object underlying the written law (whether stated or not) is to be preferred as against a construction that would not promote that purpose or object.

  5. However, s 18 does not direct me to apply a construction which 'will best achieve' the object of the legislation.  Rather, s 18 of the Interpretation Act operates where there is more than one construction open.  In such circumstances, s 18 provides that I should choose a construction that would promote the underlying objects or purposes of the legislation as against one which would not.[7]

    [7] Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 [37] (Banks­Smith J); see also Dao Ji Association and City of Gosnells [2020] WASAT 10 [96].

  6. In construing a legislative provision, the task is not to have regard to any assumptions about the desired operation of the relevant provisions of the relevant Act in question.[8]

    [8] 2 Thomas Road [39]; Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J) see also Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).

  7. However, as a matter of legislative context, it is relevant that planning schemes are not ordinarily drafted by Parliamentary Counsel.[9]  As a result, planning schemes should be construed broadly and sensibly, not pedantically.[10]

    [9] Sanders v City of South Perth [2019] WASC 226 [98]-[99].

    [10] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132 [25] (McLure JA, Steytler P and Pullin JA agreeing).

  8. TPS 3, like all local planning schemes in Western Australia, includes the 'Deemed Provisions'. The Deemed Provisions are contained in Sch 2 to the LPS Regulations.

  9. The Deemed Provisions apply perforce of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations).

  10. I will discuss the Deemed Provisions, and their effect, in some detail in these reasons.  However, before I turn to that, I will set out the respective submissions of the parties.  Given the complexity of the argument, the parties' submissions are set out largely verbatim. 

Respondent's submissions

  1. The Respondent's submission on the preliminary issue are set out below. 

  2. The Land is within DA 22 in TPS 3.  Item 11 of Sch 11 to TPS 3 (as it then was) authorised the preparation of a Structure Plan for DA 22.  A Structure Plan for DA 22 was prepared and endorsed pursuant to cl 6.2.10 of TPS 3 (as it then was) by the Tribunal on 20 May 2010. 

  3. The effect of the Structure Plan was to impose 'classifications' on the land within it by reference to zoned and State Planning Policy 7.3 - Residential Design Codes Volume 1 (R Codes).  By reason of cl 6.2.6.3 of TPS 3 (as it then was), the Structure Plan had effect according to its tenor, as if it were part of TPS 3.[11]

    [11] Otago Pty Ltd and City of Cockburn [2021] WASAT 27 [136]-[141] (Otago).

  4. A DAP was prepared for DA 22 and approved by the Respondent on 22 October 2010.  Pursuant to cl 6.2.15.7 of TPS 3 (as it then was) the DAP constituted a variation of the Structure Plan.  The WAPC approved the variation to the DAP on 19 December 2016. 

  5. On 19 October 2015, the Deemed Provisions commenced.  The DAP continued to have effect as a LDP.[12]

    [12] Regulation 79(1) and reg 79(2) of the LPS Regulations; see also cl 56, Deemed Provisions.

  6. At the time that the (now) LDP was adopted, cl 8.2.1 of TPS 3 (as it then was) provided that the erection of a single house did not require development approval:

    a)unless it requires the exercise of a discretion to vary the acceptable development requirements of the R Codes (cl 8.2.1(b)); or

    b)if it complied with the provisions of a detailed area plan (cl 8.2.1(j)).

  7. Pursuant to cl 5.3.1 of the R Codes (as at 2010), local planning policies could vary the 'acceptable development' provisions of the R Codes.

  8. When the LDP was adopted, the Respondent's Residential Design Codes - Alternative Acceptable Development Provisions (APD49) had the effect of varying a number of the acceptable development provisions of the R Codes.

  9. At the time the LDP was adopted:

    a)it constituted a variation to the Structure Plan for DA 22 and had effect as part of TPS 3; and

    b)the erection of single house on the Land was exempt from requiring development approval if it complied with either –

    i)the acceptable development provisions of the R Codes, as varied by APD49; or

    ii)the provisions of the LDP.

  10. On 2 August 2013, the R Codes were amended.  The amendments included replacing cl 5.3.1 with (the current clause) cl 7.3.1, pursuant to which the power to vary or replace specified 'deemed-to-comply' provisions (formerly 'acceptable development' provisions) was extended to local development plans and activity centre plans, in addition to local planning policies.

  11. As stated, the Deemed Provisions commenced on 19 October 2015. 

  12. On 26 August 2016, TPS 3 was amended to conform to the Deemed Provisions by:

    a)deleting the provisions relating to structure plans contained in cl 6, including cl 6.2.6.3;

    b)the provisions relating to specific Development Areas contained in Sch 11 being moved to Table 9 in Pt 5; and

    c)specific clauses exempting development from the requirement for development approval contained in cl 8.2.1, including cl 8.2.1(j), being moved from Pt 8 to Sch A (Supplemental Provisions to the Deemed Provisions).

  13. On 12 December 2019, the City of Cockburn adopted Local Planning Policy 1.1 - Residential Design Codes Alternative Deemed to Comply Provisions (LPP 1.1).

  14. Following the commencement of the Deemed Provisions, the amendments to TPS 3 (outlined at [49] above), together with the adoption of LPP 1.1, the erection of a single house on the Land was only exempt from the requirement for development approval if it:

    a)satisfied the deemed to comply requirements of the R Codes (as varied by LPP 1.1); or

    b)complied with the provisions of the LDP.

Interpretation of the LDP

  1. When adopted, the LDP constituted a variation to the Structure Plan for DA 22 and had effect as part of TPS 3.  Accordingly, LDP was, at that time, subsidiary legislation.

  2. The relevant principles that apply to the interpretation of subsidiary legislation, including planning schemes, are well established.[13]  These principles apply to the Structure Plan for DA 22 and, therefore, the LDP.[14]

    [13] Otago [134]-[135].

    [14] Otago [136].

  3. When interpreting a statutory instrument, each provision must be given effect so that:

    … no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful or pertinent.[15]

    [15] Commonwealth v Baume (1905) 2 CLR 405, 414 cited in ProjectBlue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382.

  4. Where two constructions are open, a court will prefer the construction which avoids 'absurd', 'extraordinary' or 'unreasonable' consequences.[16]  In addition, s 18 of the Interpretation Act provides that a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) is to be preferred as against a construction that would not promote that purpose or object. 

The dispute

[16] Prentice v Nugan Packing Co Pty Ltd (1950) 81 CLR 558, 564-565; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 305 quoting Gartside v Inland Revenue Commissioners (UK) [1986] AC 553, 612.

  1. In this instance, the LDP contains a number of provisions under the headings R Codes, Scheme and Residential Design Code Variations, Design Elements, Dwelling Setbacks, Dwelling Height, Garages and Vehicular Access and Fencing.

  2. The 7th bullet point under the heading Design Elements provides:

    Any exposed parapet wall on a common boundary shall be suitably finished to match the external walls of the dwelling, unless otherwise agreed with the adjoining property owner.

    (Parapet Wall Requirement)

  3. It is not in dispute that the parapet wall located on the eastern boundary of the Land is not finished to match the external walls of the remainder of the Dwelling. 

  4. The parapet wall is face brick while the remainder of the external walls are rendered and painted.  It is also not in contest that the adjoining property owner has not agreed to the wall being face brick.

  5. The LDP also included a plan which identified the lots to which the LDP applied, the building envelopes for various building levels and building setbacks.

  6. There is no also dispute that the plan for the LDP showed a 'Nil Building Setback' on the eastern boundary of the Land (being Lot 813).

  7. What is in contest is whether development approval is required to erect a single house with a 'Nil Building Setback', where indicated on the plan, in circumstances where the relevant requirements under the heading Design Elements are not complied with, specifically, in this instance, the Parapet Wall Requirement.

Questions of purpose and construction

  1. The Respondent submits that development approval is required for the erection of a single house which does not comply with relevant Design Elements of the LDP.

  2. Once adopted, the DAP (now the LDP) was not restricted as to the extent to which it could vary the provisions of the R Codes.  The LDP constituted a variation to the Structure Plan which formed part of TPS 3.  As a result, the LDP formed part of TPS 3.

  3. Pursuant to cl 6.2.15.1 of TPS 3 (as it then was), the purpose of the LDP was to enhance, elaborate and expand the details or provisions contained in the Structure Plan for DA 22.  Furthermore, pursuant to cl 6.2.15.2(f) of TPS 3 (as it then was), the details which could be enhanced, elaborated and expanded upon by a LDP included, relevantly, the design of buildings within the LDP area.

  4. To give effect to the LDP's purpose, the LDP provided specific Design Elements in relation to the design of dwellings within the LDP area. Those details are contained in the part of the LDP headed Detailed Area Plan R-Code Variation.

  5. Immediately below the heading referred to above, the LDP provides:

    The City of Cockburn's relevant Planning Policies, District Town Planning Scheme and the R-Codes are varied in the following manner[.]

  6. Consistent with the fact that the LDP constituted a variation to the Structure Plan, and therefore, formed part of TPS 3, the LDP had the effect of varying the provisions of both TPS 3 and the R Codes, as well as any relevant planning policies.

  7. Pursuant to clause 5.2.2 of TPS 3 (as it then was), residential development was to comply with the provisions of the R Codes unless otherwise provided by TPS 3.  Accordingly, the provisions of the LDP, being part of TPS 3, prevailed over the provisions of the R Codes and, in effect, varied the R Codes to the extent specified in the LDP.

  8. Under the heading Scheme and Residential Design Code Variations, the LDP provides:

    The requirement to consult with adjoining or other landowners to achieve a variation to the R-Codes is not required where the design complies with the following standards.

    (Consultation Requirement)

  9. Immediately following the Consultation Requirement are the Design Elements, providing details as to the design of dwelling within the LDP area.

  10. The Respondent submits the Consultation Requirement must be given some effect as otherwise it would be superfluous and unnecessary.  That effect, the Respondent submits, was that consultation with adjoining property owners was required for proposed residential development which did not comply with the requirements set out under the headings Design Elements, Dwelling Setbacks, Dwelling Height, Garages and Vehicular Access and Fencing.

  11. Pursuant to cl 2.1.3 of the R Codes (as it then was), approval was required for proposed residential development which required an exercise of discretion by the local government of any matter under the R Codes.

  12. Pursuant to Pt 4 of the R Codes (as it then was), the owners of adjoining properties were required to be notified where proposed development required the exercise of a discretion to vary a requirement of the R Codes.

  13. Accordingly, the applicable framework for residential development which was in place when the LDP was adopted was that development approval and neighbour consultation was required for proposed residential development which involved the exercise of discretion by a local government to vary a requirement of the R Codes.

  14. That approval framework was reflected by the application of cl 8.2.1(j) of TPS 3 (as it then was), which exempted a single house from the requirement for development approval if it complied with the provisions of the LDP, and the Consultation Requirement, which required neighbour consultation for proposed residential development which did not comply with the standards set out in the LDP.

  15. In other words, where a proposed single house did not comply with the provisions of the LDP, development approval (which would necessarily involve the exercise of discretion) and neighbour consultation was required.

  16. The Respondent submits the construction set out above is the only sensible construction to give effect to cl 8.2.1(j) of TPS 3 (as it then was), the Consultation Requirement, and the 'standards' set out under the headings Design Requirements, Dwelling Setbacks, Dwelling Height, Garages and Vehicular Access and Fencing.

  17. While it may have been preferable for the LDP to expressly state that development approval was required for dwellings which did not comply with the standards set out in the LDP, such a statement was unnecessary given clause 8.2.1(j) of TPS 3 expressly exempted dwellings from the requirement for development approval if they complied with the provisions of the LDP.

Does the LDP still have the same effect?

  1. The Respondent accepts that, the effect of the Deemed Provisions is that the LDP no longer has force and effect as part of TPS 3.[17]  However, the Respondent submits that does not affect the operation of the LDP.

    [17] Otago [175].

  2. Pursuant to reg 79 of the LPS Regulations, the LDP continues to have effect as if it were a local development plan.

  3. A local development plan is defined by the cl 46 of the Deemed Provisions to mean:

    a plan setting out specific and detailed guidance for future development including one or more of the following –

    (a)site and development standards that are to apply to the development; and

    (b)specifying exemptions from the requirement to obtain development approval for the development in the area to which the plan relates.

  4. Pursuant to cl 47(d) of the Deemed Provisions, the purpose of the LDP now includes providing for orderly and proper planning.

  5. The Respondent submits that in order to provide for orderly and proper planning, a local development plan must set out the standards to be applied to buildings.[18]

    [18] Clause 48(1)(c)(i), Deemed Provisions.

  6. The standards to be applied to buildings the subject of the LDP include the standards set out under the heading Design Elements, which includes the Parapet Wall Requirement.

  7. In view of the above, the Respondent submits the whole of the LDP continues to have effect as if it were a local development plan made in accordance with the LPS Regulations. That being so, the Consultation Requirement and the Parapet Wall Requirement continue to apply.

  8. Furthermore, pursuant to cl 61(1)(n) of Sch A to TPS 3, the erection of a single house remains exempt from the requirement for development approval only if it complies with the provisions of a local development plan.

  9. Accordingly, the erection of a single house on the Land is exempt from the requirement for development approval in circumstances where the single house complies with the LDP.

  10. That is consistent with cl 46(b) of the Deemed Provisions in that, pursuant to cl 61(1)(n) of Sch A, the LDP specifies exemptions from the requirement to obtain development approval.

  11. In view of the above, the LDP continues to operate as it had prior to the Deemed Provisions coming into effect.  That is, the erection of a single house in the LDP area is exempt from the requirement for development approval if it complies with the provisions of the LDP, including the Design Elements and the Parapet Wall Requirement.

  12. Where the erection of a single house in the LDP area does not comply with the provision of the LDP, development approval is required, and the Consultation Requirement applies.

  13. The development approval framework provided by the LDP and cl 61(1)(n) of Sch A also remains consistent with the development approval framework set out in the R Codes.

  14. That is, it remains the case under the R Codes that approval is required for proposed residential development which requires an exercise of discretion by the local government (Pt 2) and, in those circumstances, the owners of adjoining properties may be notified (Pt 4).

  15. The Respondent also continues to expressly provide for variations to the deemed-to-comply provisions of the R Codes, including those relating to lot boundary setback, via LPP 1.1.  Consistent with the application of cl 61(1)(n) of Sch A, LPP 1.1 expressly provides that it does not exempt compliance with the City of Cockburn's local development plans.

  16. It remains the case that the erection of a single house on the Land requires development approval unless the house is exempt from the requirement for development approval because it either:

    a)satisfies the deemed-to-comply requirements of the R Codes as varied by LPP 1.1; or

    b)complies with the provisions of the LDP, including the Parapet Wall Requirement.

  17. In this instance, the Dwelling does not satisfy the deemed­to­comply requirements of the R Codes, as varied by LPP 1.1, or comply with the Parapet Wall Requirement. Accordingly, development approval is required.

Application of Pt 7 of the R Codes

  1. The Applicants contend that the LDP can only vary the specific 'deemed-to-comply' provisions specified in cl 7.3.1 of the R Codes.  That is, because the R Codes do not contain deemed­to­comply provisions in relation to the external finish of dwellings, in relation to lot boundary setbacks or otherwise, the LDP cannot impose such requirements.

  2. The Respondent submits its construction of the LDP should be preferred for the following reasons:

    a)The purpose of the LDP is to:

    i)enhance, elaborate and expand the details or provisions contained in the Structure Plan for DA 22, including the details relating to the design of buildings within the area to which the LDP applies; and

    ii)provide for orderly and proper planning within the area to which the LDP applies.

    b)The LDP is required include specific standards to be applied to buildings within the area to which the LDP applies (cl 48(1)(c) of the Deemed Provisions).

    c)The LDP is a plan setting out specific and detailed guidance for future development and includes development standards which are to apply to development within the area to which the LDP applies (cl 46 of the Deemed Provisions) whereas the R Codes is a state planning policy of general application. 

    d)The R Codes is a State planning policy which does not prevail over the provisions of the LDP and TPS 3 regulating the requirement for development approval of dwellings within the area to which the LDP applies.

  3. Furthermore, if cl 7.3.1 of the R Codes was construed as in some way limiting the application of the LDP, with the effect that a single house need only comply with some, but not all, of the requirements of the LDP, then the effect of cl 61(1)(n) of Sch A to TPS 3 would be undermined.

  4. The erection of a single house on the Land is only exempt from the requirement for development approval if it complies with the deemed­to­comply provisions of the R Codes, as varied in accordance with cl 7.3.1 of the R Codes (Item 6 of the table to cl 61(1) (Item 6) of the Deemed Provisions), or if it complies with the LDP (cl 61(1)(n) of Sch A).

  5. The deemed-to-comply provisions of the R Codes are varied throughout the City of Cockburn's district by LPP 1.1 in accordance with clause 7.3.1 of the R Codes. As a result, the erection of a single house is exempt from the requirement for development approval within the City of Cockburn's district generally pursuant to Item 6 of the table to cl 61(1) of the Deemed Provisions, if it complies with the deemed­to­comply provisions of the R Codes, as varied by LPP 1.1.

  6. If the LDP was read down so that the only provisions of the LDP which applied were those which purported to vary a deemed-to-comply provision of the R Codes, which can be varied pursuant to cl 7.3.1 of the R Codes, then the erection of a single house would also be exempt from the requirement for development approval under Item 6 of the Deemed Provisions, if the house complied with those deemed-to-comply provisions, as varied by the LDP.

  7. However, that would render cl 61(1)(n) of Sch A of TPS 3 unnecessary.

  8. In order to give effect to cl 61(1)(n) of Sch A, the erection of a single house on land within the area to which the LDP applies should only be exempt from the requirement for development approval if the house complies with the deemed to comply provisions of the R Codes, as varied by LPP 1.1, or complies with the LDP, including the Design Elements and the Parapet Wall Requirement.

Applicants' submissions

  1. The Applicants submit that:

    a)development approval is not required for the construction of the Dwelling notwithstanding that the finish to the external wall on the eastern boundary of the Land does not comply with the 7th bullet point of the Design Elements of the relevant LDP; and

    (b)the Respondent did not, and the Tribunal does not, have jurisdiction to issue the Direction requiring compliance with the 7th bullet point of the Design Elements of the LDP.

  2. That conclusion follows because the construction of the Dwelling on the Land satisfies the deemed-to-comply provisions of the R Codes, as varied by the LDP.  The effect of that is the exposed wall on the eastern boundary of the Land meets the boundary setback provisions of the R Codes, as varied by the 10th bullet point under the heading Dwelling Setbacks of the LDP (Setback Variation).

  3. The fact that the finish to the external wall on the eastern boundary of the Land does not comply with the 7th bullet point of the LDP under the heading Design Elements (being the Parapet Wall Requirement) is of no consequence to the determination of the preliminary issue because the Parapet Wall Requirement is unrelated to the Setback Variation. 

  4. That is, compliance with the Parapet Wall Requirement is not a condition precedent or otherwise necessary for satisfaction of the Setback Variation (which varies the deemed-to-comply provisions of the R Codes).

Detailed submissions

  1. Clause 61(1) of the Deemed Provisions provides that development approval is not required for certain works as described in Column 1 of the table to that sub-clause if (and only if) the conditions in Column 2 to the table are satisfied.

  2. Item 6 to cl 61(1) of the Deemed Provisions provides that development approval is not required for the construction of a single dwelling on a lot if:

    (a)The R Codes apply to the works.

    (b) The works comply with the deemed-to-comply provisions of the R Codes.

    (c)The works are not located in a heritage-protected place.[19]

    [19] There is no suggestion that the works occurred in a heritage-protected place.

  3. As far as the Applicants are aware, the only deemed-to-comply provision of the R Codes relevant to the wall on the eastern boundary of the property is the side setback provision in cl 5.1.3 of the R Codes.

  4. Pursuant to cl 7.3.1 of the R Codes, the deemed-to-comply provisions relating to lot boundary setbacks under cl 5.1.3 may be varied ('amended or replaced') by one or more of local planning policies, activity centre plans and local development plans.[20]

    [20] Clause 7.3.2 of the R Codes allows for certain other deemed-to-comply provisions to be varied but only with the approval of the WAPC.  There is no suggestion that that has occurred.

  5. The LDP includes 10 bullet points under the heading Dwelling Setbacks and an introductory statement that says that 'setbacks for development shall be in accordance with the following (except where stated, all other setbacks shall be in accordance with the R Codes)'.

  6. The only relevant bullet point is the Setback Variation which is the final bullet point.[21]  It provides:

    A nil setback is permitted on both side boundaries (where indicated on the DAP) for a maximum length determined by the required front setback. Refer to 'Typical Setback Requirement' illustration for determining nil setback areas permitted to the upper and lower levels of the dwelling.

    [21] The 6th bullet point expressly refers to Land but it is concerned with setbacks from a laneway which is not the matter of concern here.

  7. The wall on the eastern boundary of the Land satisfies the Setback Variation in that:

    a)the plan to the LDP shows the Land with a solid dark line to its eastern boundary indicating a nil setback;

    b)the diagram showing the Typical Setback Requirements provides for a minimum 2.5 metre front setback; and

    c)the Dwelling shows the eastern boundary wall finishing at least 2.5 metre from the front (Madras Link) boundary.[22]

    [22] Agreed Statement of Facts, para 10(c).

  8. As such, the Dwelling satisfies the lot boundary setback requirement of the R Codes, as varied by the LDP, and, accordingly, is exempt from the need for development approval pursuant to cl 61(1) of the Deemed Provisions.

Applicants' answer to the Respondent's case

  1. The Respondent's case is that:

    a)when the LDP was first formulated (as a DAP) it formed part of the Scheme and therefore prevailed over the R Codes and compliance with the Parapet Wall Requirement was therefore necessary; and

    b)that history requires that compliance with the LDP as a whole (including the Parapet Wall Requirement) is necessary in order to achieve exemption from the need for a development approval.

  1. The Respondent acknowledges that the Deemed Provisions have altered the status of the LDP, which 'no longer has force and effect as part of TPS3'.[23]  Nonetheless, the Respondent submits that 'that does not affect the operation of the LDP'.[24]

    [23] Respondent's submissions, para 49.

    [24] Refer [80] above.

  2. The Respondent submits, on the basis of reg 79 of the LPS Regulations, that DAPs 'continue in force as if they were a local development plan'.

  3. However, reg 79 does not have the effect for which the Respondent contends. Rather, by continuing in force as if it was a local development plan, the former DAP has the effect for which TPS 3 gives a local development plan, which is threefold.[25]

    [25] In Otago, [175], the Tribunal held that '[t]he effect of the Deemed Provisions, and of the amendments to TPS 3 which followed, was that the provisions of the Structure Plan no longer had effect as if they were provisions of TPS 3 itself. ... Further, TPS 3 as amended merely required that the planning authority would give due regard to the Structure Plan …'. The additional two matters were not relevant to the issue in question in Otago.

  4. First, cl 7.3.1 of the R Codes (compliance with which is required by cl 4.2.2 of TPS 3) provides that an LDP may vary certain, specified, deemed-to-comply provisions of the R Codes.

  5. Secondly, cl 56(1) of the Deemed Provisions provides that a decision­maker is to have 'due regard' to an LDP when deciding an application for development approval.

  6. Thirdly, cl 61(l)(n) of Sch A to TPS 3 provides that compliance with an LDP exempts the development from the need for development approval.

Clause 7.3.1 of the R Codes

  1. As noted above, cl 4.2.2 of TPS 3 requires compliance with the R Codes, cl 7.3.1 of which provides for the variation of some, but only some, deemed-to-comply provisions of the R Codes.

  2. The deemed-to-comply provisions related to lot boundary setbacks set out in cl 5.1.3 are so specified.

  3. Under the heading Dwelling Setbacks, the LDP sets out 10 bullet points, all of which concern lot setbacks.

  4. It appears to be uncontroversial that they vary the deemed­to­comply provisions of the R Codes concerning setbacks.

  5. The Respondent's submission seems to be that satisfaction of the bullet points under the heading Dwelling Setbacks is, of itself, insufficient to satisfy the deemed-to comply provisions of the R Codes, as varied by those bullet points. [26]

    [26] Respondent's submissions, para 63.

  6. Rather, the Respondent appears to say that all of the other provisions of the LDP must also be satisfied.

  7. There is nothing in the text of the LDP to support that contention.  That is, there is nothing to link the Parapet Wall Requirement to the Setback Variation other than the fact that it appears in the same document.

  8. Furthermore, there is nothing in the text of the LDP to suggest that satisfaction of the Parapet Wall Requirement, or any other provision, is a pre-condition to satisfying the Setback Variation.  Indeed, there is nothing in the LDP that requires satisfaction of all of its provisions per se.

  9. The Respondent's case does not appear to suggest otherwise.  Rather, the Respondent appears to seek to overcome the lack of textual support for its contention by relying upon a combination of factors which go to:  

    a)the original purpose of the DAP; and

    b)the provisions of the Deemed Provisions concerned with the preparation and approval of new local development plans.

  10. No real weight should be given to either factor because:

    a)the LDP no longer has the effect of a DAP;[27] and

    b)the provisions relied upon did not exist when the LDP was produced.  They cannot provide assistance in its construction or effect.[28]

    [27] Otago, [175].

    [28] In contrast, cl 56 of the Deemed Provisions is not concerned with the preparation or approval of a local development plan but, rather, with the effect of a local development plan once it is approved which, by reg 79, of the LPS Regulations includes the LDP.

  11. Neither of those matters ought to prevail over the text of the LDP which makes no connection between the Setback Variation and the Parapet Wall Requirement.

Due regard

  1. Clause 56(1) of the Deemed Provisions states that the decision-maker must have regard to an LDP when determining an application for development approval.[29],[30]

    [29] Which, in this case, includes a DAP which continues to have effect as a local development plan per reg 79: Otago, [175].

    [30] Clause 56(2) of the Deemed Provisions provides for the circumstance where an LDP may be provided but where no LDP has been approved.

  2. The italicised words above are critical.  In the absence of an application for development approval, there is no work for an LDP to do.

  3. That is, if the development is exempt from the need for development approval, the LDP has no work to do.

  4. There is nothing in any other provision of TPS 3 that suggests otherwise:

    a)Clause 5.2.2 of TPS 3 provides that the development of land within a Development Area is to comply with Table 9.

    b)Table 9 says, in relation to DA22:

    i)Item 12:  'the local government may approve [LDPs] for any part of the Development Area ... pursuant to cl 52 of the Deemed Provisions';

    ii)Item 13: '[LDPs] may be required for any particular lot or lots'; and

    iii)Item 14:  'Despite the provisions of the Scheme, the Council may, when considering a [LDP], impose development requirements including but not limited to vehicle parking greater than the standard prescribed under the Scheme ...'.

  5. Nothing in cl 5.2.2 of TPS 3 says that an LDP created in accordance with Table 9 must be strictly complied with.  It says only that a development is to comply with Table 9.

  6. Nothing in Table 9 says that the provisions of a LDP created for DA22 must be complied with.  Table 9 says no more than that an LDP may be created which may 'impose development requirements'.

  7. 'Development requirements' are matters which, if a development approval is required, must be met subject to the exercise of the local government's discretion to vary; they do not, of themselves, create a need for a development approval.

  8. The Respondent, in effect, submits that each provision of an instrument must have work to do.

  9. That principle is concerned with ensuring a harmonious construction to the document when read as a whole so that a particular construction of one part of it does not render another part of the same document ineffectual.

  10. That is not the problem to be solved here.  The relevant passages have been rendered less than entirely effective because of changes to the status of the document brought about by the Deemed Provisions; not because of a particular construction of the LDP or the Setback Variation in particular.[31]

    [31] Respondent's submissions paras 37 and 40.

  11. In any event, the Applicants' approach is consistent with the principle because the LDP, as a whole, has a role to play in the exercise of discretion in determining an application for development approval.

  12. The Respondent submits that the Applicants' approach in this regard amounts to the R Codes 'prevailing over' the provisions of the LDP.

  13. While it is not strictly accurate to say that the R Codes 'prevail' over the LDP, as has been set out above, it is the case that:

    a)TPS 3 requires compliance with the R Codes:  cl 4.2.2;

    b)the R Codes provide that an LDP can only vary a deemed-to-comply provision if the R Codes says that it can:  cl 7.3.1; and

    c)the Deemed Provisions provide only that 'due regard' must be had to the terms of an LDP in determining an application for development approval.

  14. The Applicants' case does no more than apply those provisions.

Clause 61(1)(n) of TPS 3  

  1. Clause 61(l)(n) of Sch A to TPS 3 provides that compliance with the provisions of an LDP provides an exemption from the need for development approval.

  2. That exemption operates separately from the other exemptions provided by cl 61(1) of the Deemed Provisions, in that each of them are alternative means by which exemption can be achieved.

  3. That is, any one of the various alternatives in cl 61 may be satisfied in order to achieve an exemption; so much follows from the introductory words to cl 61(1).

  4. But while the Respondent's own submissions provide that an exemption may be achieved by compliance with the deemed-to-comply provisions or compliance with the terms of an LDP, the Respondent appears to suggest that each of the Items in the table to cl 61(1) of the Deemed Provisions are to be read cumulatively.

  5. That argument appears to be put in a couple of different ways.

  6. Firstly, it appears to be put that because there is an LDP and because cl 61(l)(n) of Sch A to TPS 3 creates an exemption from the need for development approval if the LDP is satisfied, any development which does not comply with the LDP requires approval.[32]

    [32] Respondent's submissions, para 57.

  7. Of course, in order to satisfy the exemption provided by cl 61(l)(n), the proposed works must satisfy each of the relevant requirements of the relevant LDP. In this case, that would require compliance with the Parapet Wall Requirement.

  8. But that does not mean that, if there is a LDP, the only way to achieve exemption from the need for development approval is by full compliance with the LDP.

  9. TPS 3 provides different functions for a local development plan, and there is no reason why the LDP cannot satisfy more than one of them. That is, some of its provisions provide variations to deemed-to-comply provisions of the R Codes and each of them will provide matters to which regard may be had if development approval is sought.

  10. There is no reason why some or all of the provisions cannot perform one role in one context and another role in another context.

  11. Secondly, it is said that if the Applicants' approach is adopted then cl 61(l)(n) in Sch 1 of TPS 3 is undermined or rendered unnecessary because an exemption could be achieved (by Item 6 of the Table to cl 61(1)) without satisfying those matters of a local development plan which do not concern or elate to deemed-to-comply provisions.[33]

    [33] Respondent's submissions, paras 64-67.

  12. The Respondent's contention may be correct in a particular case, but it is not always so.  It will depend on the content of the local development plan.  For example, if so minded, the Respondent might prepare and approve a local development plan which does not address any of the deemed-to-comply provisions at all but sets out other development requirements.

  13. In such circumstances, the developer would have a choice as to whether to:

    a)comply with the deemed-to-comply provisions of the R Codes in which case the development would be exempted;

    b)comply with the LDP in its entirety in which case the development would be exempt; or

    c)seek development approval.

  14. Thirdly, the Respondent's case suggests that unless all of the LDP is complied with its terms are without effect. But as noted above, 'due regard' must be had to the LDP if development approval is sought; it cannot be said in that situation that the LDP has no effect.[34]

    [34] Respondent's submissions, para 68.

  15. The Respondent's submissions do no more than reflect the fact that it (the Respondent) has failed to respond to the change in status of the LDP brought about by the Deemed Provisions and the amendments to the R Codes.

  16. The Respondent has, accordingly, continued to mistakenly treat the LDP as having an effect which is no longer the case.  That is, the Respondent's submissions seek to maintain a situation which no longer prevails.

  17. The Respondent's submissions are without merit and the preliminary issue should be answered 'no'.

Consideration

  1. I find that the development approval was not required for the Dwelling as and when it was constructed.  My reasons follow. 

The PD Act

  1. Local planning schemes are made and amended pursuant to Pt 5 of the PD Act read with Pts 4 and 5 of the LPS Regulations. Items 8 and 9 of Sch 7 to the PD Act expressly recognise that a local planning scheme may deal with development standards and development control.

  2. Added to this is the prohibition contained in s 162 of the PD Act that, in general terms, 'development' is to proceed pursuant to, and in accordance with, the planning scheme and any approval granted thereunder.

  3. The term 'development' is defined in s 4 of the PD Act. As a general proposition, the term 'development' in a town planning sense, encompasses two separate limbs. The first limb is the use of land for a particular purpose. The second limb is 'works', which is defined in cl 1 of the Deemed Provisions to include any demolition, erection, construction of or alteration to any building on the land as well as excavation. That is, 'works' involve the physical alteration of land with a requisite degree of permanence.[35]  

    [35] University of Western Australia v City of Subiaco (1980) 52 LGRA 360 (Burt CJ).

  4. The Deemed Provisions were made pursuant to Pt 15 of the PD Act and commenced on 19 October 2015. Section 256(1) authorises the Planning Minister to prepare regulations to deal with the carrying out of the general objects of local planning schemes and any matter set out in Sch 7 to the PD Act. Unless the regulations otherwise provide, regulations made under s 256(1) apply to all local planning schemes.[36]    

    [36] Section 256(4) PD Act.

  5. Section 69(1)(a) of the PD Act provides that a local planning scheme may be made with the general objects of making suitable provision for the improvement, development and use of land in the scheme area. Schedule 7 to the PD Act set out the matters that may be dealt with by a local planning scheme. I have already set out the items in Sch 7 include provisions relating to 'development'.

  6. Section 256(5) of the PD Act provides that each provision made under s 256(1) must either be designated as a 'model' or a 'deemed' provision. Section 256(6) of the PD Act provides that regulations made pursuant to s 256(1) may include provisions of a savings or transitional nature that are necessary or convenient.

  7. Section 257B of the PD Act provides that a 'deemed provision' is 'a provision designated as a deemed provision under s 256(5)(b)'. Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply.[37]  

    [37] Section 256(2) Planning and Development Act 2005 (WA) (PD Act).

  8. If a 'deemed provision' that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails, and the other provision is to the extent of the inconsistency of no effect.[38]

    [38] Section 256(3) PD Act; see also Puma Energy Australia v City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 [40].

  9. Each local government is to ensure that its scheme is consistent with any deemed provision that applies to the scheme.[39]

    [39] Section 257B(5), PD Act.

  10. Section 73(2A) of the PD Act provides that a local planning scheme may:

    (a)supplement provisions prescribed under s 256; and

    (b)deal with any special circumstances or contingencies for which adequate provisions are not prescribed under s 256.

The LPS Regulations

  1. Part 9 of the LPS Regulations addresses repeal and transitional arrangements for 'planning instrument[s]' in the context of the commencement of the Deemed Provisions. A 'planning instrument' includes a 'local development plan' and a 'structure plan'.[40] 

    [40] Regulation 77, LPS Regulations.

  2. Regulation 79(1) of the LPS Regulations provides that a 'planning instrument' duly made before the commencement day continues in force as if were a 'planning instrument' of the same type made under the PD Act in accordance with the LPS Regulations.

  3. Regulation 79(2) provides that for the purposes of reg 79(1), an 'instrument' identified in the table to reg 79(2) is to be taken to be a 'planning instrument' of the type identified in the table. The effect of that table is that what was once a 'detailed area plan' was to be regarded, for the purposes of the Deemed Provisions, a 'local development plan'.

  4. Relevant for present purposes is that, from 19 October 2015, the DAP became, in effect, a LDP for the purposes of the Deemed Provisions.

The Deemed Provisions, TPS 3 and Sch A

  1. As I have stated, the Deemed Provisions, made pursuant to s 256(5) of the PD Act, commenced on 19 October 2015.

  2. While I am mindful of the requirements of s 27(2) of the SAT Act, the preliminary issue before me focuses attention on the applicable planning framework at the time the Dwelling was erected. Both parties referred to Item 6 of the table in cl 61(1) of the Deemed Provisions. However, that table only commenced on 15 February 2021 via the Planning Regulations Amendment Regulations 2020 (WA). By reason of reg 90(2) of the LPS Regulations, the table does not apply to DR 109 of 2021.[41]  In any event, it is of no consequence as the applicable planning framework at the relevant time, which I set out immediately below, provided an almost identical exemption for single houses that satisfied the deemed-to-comply provisions of the R Codes.

    [41] The application for retrospective approval of the wall was made on 9 February 2021. 

  3. Clause 61(1) of the Deemed Provisions, as at 2019/20 when the Dwelling was constructed, provided that 'development approval of the local government is not required for the following works' including, relevantly:

    (c)the erection or extension of a single house on a lot if the R Codes apply to the development and the development satisfies the deemed-to-comply requirements of the R Codes[.]

  4. Clause 4.2.2 of TPS 3 requires that, unless otherwise provided for, the development of land for any residential purposes dealt with by the R Codes, is to conform to the provisions of the R Codes.

  5. Schedule A to TPS 3 is a set of provisions prepared pursuant to s 73A(2A) of the PD Act. The provisions are identified as being 'supplemental provisions to the deemed provisions'.

  6. Schedule A to TPS 3 includes the following provisions:

    cl 61(1)(l)the erection on a single lot of two grouped dwellings (included extensions and ancillary outbuildings) where a grouped dwelling is designated with the symbol 'P' in the cross reference to that Use Class and a Zone in the Zoning Table, and where the development is consistent with Local Planning Policy No. 1.2 (Residential Design Guidelines) and the Residential Design Codes.

    cl 61(1)(m)the erection on a lot of a single house, including extensions and ancillary outbuilding with an area:-

    (i)of 100 square metres or less and a wall height of 2.4 metres or less in the Development and Residential Zone.

    (ii)of less than 100 square metres and a wall height not exceeding 4.5 metres in the Rural Zone and Rural Living Zone[.]

    (iii)of 200 square metres or less with a wall height of 4.5 metres in the Resource Zone[.]

    and the single house addition or outbuilding are located within a building envelope applying to the lot, where a single house is designated with the symbol 'P' in the cross-reference to that Use Class and the respective zones in the Zoning Table, in the case of the Rural Zone and the Rural Living Zone, and in the case of the Resource Zone, Table 1 and 2 of Statement of Planning Policy No. 2.3.

    cl 61(1)(n)the erection of a single house and two grouped dwellings including any ancillary outbuildings and swimming pools which comply with the provisions of a Local Development Plan[.]

  7. It follows from [178] above that from 19 October 2015, what was then a DAP became a LDP for the purposes of the Deemed Provisions. The preparation, amendment and effect of local development plans is addressed in Pt 6 of the Deemed Provisions. Pursuant to cl 56(1) of the Deemed Provisions, a decision-maker is to have 'due regard to, but is not bound by', a local development plan when deciding an application.

  8. Where development approval is required under a local planning scheme, a local development plan is relevant in the exercise of planning discretion.  That is, a decision-maker is to have 'due regard' to the local development plan.[42]

Application of the local planning framework to the Dwelling

[42] Clause 67(h), Deemed Provisions (as the Deemed Provisions then were).

  1. At the time the Dwelling was constructed, the applicable local planning framework for the Land comprised, relevantly, TPS 3 (including the Deemed Provisions), the R Codes, what was then, the LDP as well as LPP 1.1.  For the following ten reasons, which overlap in part, development approval was not required for the Dwelling.

  2. Firstly, as I have explained above at [183], as at the relevant time, cl 61(1)(c) of the Deemed Provisions provided that the erection of a single house on a lot did not require development approval under TPS 3, if it met the deemed-to-comply requirements of the R Codes.

  3. The effect of cl 7.3.1 of the R Codes, is that, relevantly, either a local planning policy or local development plan may amend or replace a number of specified deemed-to-comply provisions set out in Pt 5 of the R Codes, Volume 1. 

  4. The R Codes, via cl 7.3.1, specify possible variations to inter alia street setbacks, lot boundary setbacks, building height, street walls and fences.  External finishes of new dwellings including walls (the Parapet Wall Requirement), is not a matter that can be varied by the LDP (or a local planning policy) by reason of cl 7.3.1 of the R Codes.

  5. The LDP addresses matters such as inter alia Design Elements, Dwelling Setbacks and Dwelling Height.  The 10th bullet point under Dwelling Setbacks does provide that a nil setback on both side boundaries, where shown on LDP, is permitted for a length determined by the front setback.  It seems to me that that requirement would vary the deemed-to-comply requirements of the R Codes (contained in cl 5.1.3 of the R Codes). 

  6. However, it is an agreed fact that the Dwelling complied with the Setback Variation under the LDP.[43] 

    [43] ts 15, 7 September 2021 (Henry Jackson SC).

  7. LPP 1.1 does not alter the position.  To the extent that LPP 1.1 varies or modified the deemed-to-comply requirements of the R Codes, it says nothing about the external finishes of dwellings. 

  8. I find that the question asked by the preliminary issue is ultimately answered by cl 61(1)(c) of the Deemed Provisions (as they stood when the Dwelling was erected), read with cl 7.3.1 of the R Codes. Clause 4.2.2 of TPS 3 requires residential development to conform to the provisions of the R Codes, 'unless otherwise provided for in the Scheme'. From 19 October 2015, there is no room for argument that the LDP formed part of TPS 3.

  9. I therefore find that at the time the Dwelling was erected no development approval was needed under TPS 3.

  10. That is so because the Dwelling complied with the deemed­to­comply provisions of the R Codes.  To the extent that local instruments, such as the LDP and LPP 1.1 could vary those deemed­to­comply requirements, they said nothing about external finishes and, in particular, the Parapet Wall Requirement. 

  11. Secondly, while the LDP did require external walls to be 'suitably finished', the LDP itself was no longer of legal consequence in the sense that non-compliance with its requirements resulted in development approval being required. 

  12. In short, at the relevant time, there was nothing in the planning framework between the R Codes, the LDP and LPP 1.1 which mandated that the Dwelling required development approval. Put another way, there was no instrument embedded within TPS 3 that removed or limited the application of cl 61(1)(c) of the Deemed Provisions.

  13. Whatever may be said about the state of affairs that existed prior to 19 October 2015[44], there was nothing in the transitional provisions in the LPS Regulations that preserved or continued the requirement to treat the Structure Plan and the LDP as having effect as part of TPS 3. Therefore, I have found that much of the Respondent's submissions are irrelevant. Submissions about the original intent and effect of the LDP do not actually inform the issue before me.

    [44] At the hearing of the preliminary issue, counsel for the Applicants, Mr Jackson SC, made detailed submissions that prior to the Deemed Provisions commencing, no approval for the Dwelling would have been required having regard to the then applicable planning framework.  Because of the conclusion I have reached, it is not necessary for me to engage with that argument. 

  14. In relation to the effect of the Deemed Provisions on a structure plan that was read as being part of the scheme, the Tribunal said the following in Otago v City of Cockburn:

    The effect of the Deemed Provisions, and of the amendments to [the planning scheme] which followed, was that the provisions of the Structure Plan no longer had effect as if they were provisions of [the planning scheme] itself.  The Structure Plan could no longer be characterised as, in effect, an amendment of [the planning scheme].[45]

    [45] Otago, [175].

  15. As Pritchard J noted in Lenz Pty Ltd v Shire of Serpentine Jarrahdale, the fact that cl 67(h) of the Deemed Provisions separately identified a structure plan and a local development plan, as a matter relevant in the exercise of discretion, over and above the local planning scheme itself, only confirms that such instruments no longer had effect, and could not be treated, as being part of the scheme.[46]

    [46] Lenz Pty Ltd v Shire of Serpentine Jarrahdale [2017] WASC 191,[166] (Pritchard J).

  16. Thirdly, turning now to cl 61(1)(n) of Sch A to TPS 3, I find that that sub-clause does not change the result. 

  17. In relation to cl 61(1)(n) of Sch A to TPS 3, I observe that it is a clause that is a supplement to cl 61(1), a Deemed Provision that is itself directed to identifying instances where 'works' approval is not required under a local planning scheme.[47]  I am very doubtful that, absent express words, a clause which purports to supplement a clause which outlines instances where development approval is not required, can operate to displace the clear effect of cl 61(1)(c).

    [47] Schedule A is headed 'Supplemental Provisions to the Deemed Provisions'.  The effect of s 32(1) of the Interpretation Act 1984 (WA) is that headings of Parts, divisions and subdivisions forms part of the 'written law'. 

  18. In this regard, I note the word supplement relevantly means 'something added to complete a thing, supply a deficiency, or reinforce or extend a whole'.[48]  In the context in which it is used, the relevant Sch A provisions are provisions which add to, but which do not serve to limit or dilute, the operation of the Deemed Provisions. 

    [48] Macquarie Online Dictionary.

  19. It is also the case that to the extent that the two provisions are inconsistent, the Deemed Provision prevails.[49]  

    [49] Section 257B(3), PD Act.

  20. Fourthly, I do not accept the Respondent's submissions that I should read the word 'or' into cl 61(1)(n) of TPS 3.[50]  Having regard to the analysis of French CJ, Crennan and Bell JJ in Taylor v Owners of Strata Plan No 11564 (Taylor), there is no mandate to do that.[51]

    [50] ts 28, 7 September 2021 (Mr Gillet).

    [51] Taylorv Owners of Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 (Taylor).

  21. In Taylor, the majority set out that the question of whether it is justified to read a statutory provision as if it contained, in this instance, additional words, involves a judgment of matters of degree.[52]  The majority reasoned (internal citations omitted):

    … That judgment 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.[53]

    [52] Taylor [38].

    [53] Taylor [38].

  22. Clause 61(1)(n) is, I consider, somewhat usual in that it provides an exemption for a single house and two grouped dwellings.  However, cl 61(1)(l) also provides an exemption for two grouped dwellings.  Moreover, cl 61(1)(n) is expressed in clear language and is not superfluous, nor is it redundant.  Returning to Taylor, to read the word 'or' into the provision changes, radically, its effect and scope and constitutes a very significant departure from the language that has, in fact, been used. 

  23. Fifthly, and following on from above, there are other textual indications that go against the construction advanced by the Respondent.  It is trite law that cl 61(1)(n) is to be read in the context in which it used.  That includes reading the clause in the context of other surrounding provisions. 

  24. Clauses 61(1)(l) and 61(1)(m) immediately precede cl 61(1)(n). I have set these clauses out in full at [186]. Clause 61(1)(l) refers to 'the erection of a single lot of two grouped dwellings …' and cl 61(1)(m) refers to 'the erection of a lot on a single house…'. Clause 61(1)(n) commences with 'the erection of a single house and two grouped dwellings …'. The scope, application and reach of each of these sub­clauses is relatively clear.

  25. Viewed in this context, cl 61(1)(n) is not intended as a provision that is directed to the erection of only a single house on a lot.  There is no need for such a provision having regard to the Deemed Provisions read with the R Codes (and any relevant local instruments that vary or modify the R Codes). 

  26. Rather cl 61(1)(n), by its express terms, provides an exemption from development approval for the erection of a single house plus two grouped dwellings so long as the development complies with the provisions of a local development plan. Clause 61(1)(n) of Sch A in TPS 3 does not operate to limit the effect of cl 61(1)(c) of the Deemed Provisions. As I have indicated, more would be needed, in the form of express words, if that were to be the case.

  27. Sixthly, the text of cl 46 of the Deemed Provisions also militates against the construction advanced by the Respondent. Clause 46(b) provides that a local development plan may 'specify exemptions from the requirement to obtain development approval for development in the area to which the plan relates'. Absent express words, I am doubtful that 'specify exemptions' includes the power for a local development plan to, in effect, limit the effect of cl 61(1) of the Deemed Provisions.

  28. To me, the phrase 'specify exemptions' in this context means, in effect, exemptions not otherwise provided for in the planning framework (and noting that a local development plan may relate to non-residential land). 

  29. Seventhly, the actual text of the LDP does not say anything about providing exemptions from development approval.  The LDP operates as simply a set of development standards and requirements.  As I have explained, the 'exemption from development approval' is specified by cl 61(1)(n) of TPS 3 in relation to a single house and two grouped dwellings. 

  30. Eighthly, I do not accept the Respondent's submissions on cl 47 of the Deemed Provisions.[54] That clause is directed to the basis on which a local development plan is to be prepared. It does not otherwise inform the construction of a local development plan. In any event, the LDP was not prepared under cl 47 of the Deemed Provisions. Rather, it is an instrument given effect by reg 79 of the LPS Regulations.

    [54] Refer [83]-[84] above.

  31. Ninthly, to the extent that legislative purpose informs constructional choices, the underlying 'purpose' of the Deemed Provisions was to streamline and standardise development approval processes for all local planning schemes. To this end, I note that s 256 of the PD Act, in its current form, was inserted by s 64 of the Approvals and Related Reforms (No 4) (Planning) Act 2010 (WA).

  32. In the Second Reading of the Approvals and Related Reforms (No 4) (Planning) Bill 2009, the then Planning Minister explained that one of the 'key elements' of the reforms were to 'streamline and clarify existing provisions and processes to improve the efficiency of the approvals process'.[55]   

    [55] Hansard, WA Parliament, 18 November 2009, Legislative Assembly, pages 9265-9266

  33. At the time the Deemed Provisions commenced, the legislative choice was made not to preserve the effect of structure plans and other instruments that operated, or were to be treated, as part of the local planning scheme. This is because of the plain effect of the provisions such as cl 27(1) and cl 56(1) of the Deemed Provisions read with reg 79 of the LPS Regulations.

  34. It follows that the Respondent's submission that the Deemed Provisions did not affect the operation of the LDP cannot be accepted.[56]

    [56] Refer [80] above. 

  35. The 'purpose' of the Deemed Provisions was to standardise and rationalise local planning scheme provisions relating to development control.  It is now plain that the commencement of the Deemed Provisions had a very significant impact on the Respondent's local planning framework.  That was not an accident nor was it unintended.  To that extent, I also do not accept the Respondent's submissions that the outcome contended for by the Applicants in this matter would be an 'absurd', 'extraordinary' or 'unreasonable' result.[57]  

    [57] Refer [55] above.

  36. To the contrary, as I explain below, I consider this planning outcome was a foreseeable consequence of the very purpose of the Deemed Provisions. 

  37. Finally, I am mindful of the requirement that planning schemes be read and applied in a practical and common-sense manner.  In this regard, I repeat the comments made by the Court of Appeal in Australian Unity Property Ltd v City of Busselton that:

    The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies.  Placing a counter­intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.[58]

    [58] Australian Unity [82].

  38. The construction advanced by the Respondent stands in stark contrast to the plain meaning of cl 61(1)(c) read with cl 4.2.2 of TPS 3 and applying the terms of cl 7.3.1 of the R Codes. The plain and ordinary reading of those provisions leads to the result that development approval was not required for the Dwelling.

  39. The Respondent's construction requires much in the way of linguistic gymnastics and also to treat the LDP as having a status that, from 19 October 2015, it no longer had.  To accept the Respondent's construction would be the equivalent of placing a gloss on the plain language of these instruments and would give cl 61(1)(n) a reach that it simply does not have. 

Some final comments

  1. While I am mindful of my role at the Tribunal, I feel compelled to express some sympathy for the position that the Respondent, and in particular the neighbours of the Land, now find themselves in.  Compliance with the LDP was plainly intended to be a fundamental lodestar of the development of the Land.  Ideally, there should be neighbour consultation about the wall in question.  However, the operation and effect of the LDP was significantly altered by the Deemed Provisions. 

  2. As this case demonstrates, the commencement of the Deemed Provisions left only a carcass of many carefully crafted and bespoke local planning frameworks, under the guise of streamlining, standardising, and modernising statutory planning processes.  The reality is that that outcome was a necessary and intended consequence of the Deemed Provisions.  It is not for me to comment on the wisdom of such an approach.  However, it is axiomatic that there are no doubt considerable benefits and efficiencies to be gained, in establishing a more standardised approach to development control. 

  3. However, any sympathy one may have for the Respondent is tempered by the fact that the Deemed Provisions have been in effect for over six years.  While I do acknowledge the inclusion of Sch A in TPS 3, the Respondent, and local governments generally, have had plenty of opportunity to adjust their planning frameworks in the light of the reality of the Deemed Provisions and the significant planning lacunas that resulted.  For the sake of their local communities, such issues need to be addressed. 

Conclusion

  1. In the result, the Applicants' submissions should be accepted.  At the relevant time, the erection of the Dwelling did not require development approval under TPS 3.  For that reason, there was no unauthorised development on which the Direction could operate.  The Direction was therefore made without lawful authority.

  2. It follows that the Tribunal, standing in the shoes of the Respondent, has no power to affirm the Direction.

  3. I shall hear from the parties as to the orders that are necessary to give effect to these reasons.

Orders

The Tribunal orders:

1.The matter is listed for a directions hearing on 10 December 2021 at 2.30 pm.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR S WILLEY, SENIOR MEMBER

3 DECEMBER 2021


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Cases Citing This Decision

2

MCCOMISH and SHIRE OF PEPPERMINT GROVE [2023] WASAT 121
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