MCCOMISH and SHIRE OF PEPPERMINT GROVE - [2023] WASAT 121

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   MCCOMISH and SHIRE OF PEPPERMINT GROVE [2023] WASAT 121
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   25 OCTOBER 2023
DELIVERED          :   7 DECEMBER 2023
FILE NO/S:   DR 116 of 2023
BETWEEN:   SOPHIE CLAIRE LEEUWIN MCCOMISH
Applicant
AND
SHIRE OF PEPPERMINT GROVE
Respondent

Catchwords:

Town planning - Development application - Local planning scheme - Single house - Deemed provisions - Model provisions - Statutory construction

Legislation:

Interpretation Act 1984 (WA), s 5, s 18
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10(1), reg 10(4), Sch 1, cl 9, cl 26, cl 32, cl 34, Sch 2, cl 1, cl 1A, cl 60, cl 60(1), cl 60(b), cl 61, cl 61(1), cl 61(1)(a), cl 61(6)(a), cl 64, cl 65A, cl 66, cl 67(2), Pt 5, Pt 7, Pt 8, Pt 9
Planning and Development Act 2005 (WA), s 4, s 69, s 69(1), s 69(3), s 87(4), s 256, s 256(1), s 256(5), s 257A, s 257A(2), s 257A(3), s 257B, s 257B(3), Pt 5, Pt 15, Sch 7
R-Codes State Planning Policy 7.3 Residential Design Codes Volume 1
Shire of Peppermint Grove Local Planning Scheme No 4, cl 7(1)(a), cl 8(a), cl 8(c), cl 9, cl 9(a), cl 9(d), cl 9(e), cl 25(1), cl 26, cl 26(1), cl 26(2), cl 26(3), cl 32, cl 32(1), cl 32(1)(a), cl 32(2), cl 34, cl 37, Pt 4

Result:

Preliminary question answered

Category: A

Representation:

Counsel:

Applicant	:	B Moharich
Respondent	:	K de Kerloy & C A Slarke

Solicitors:

Applicant	:	Moharich & More
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
Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328
Cann and Shire of Augusta-Margaret River [2021] WASAT 22
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Dao Ji Association and City of Gosnells [2020] WASAT 10
Director General of Department of Transport v McKenzie [2016] WASCA 147; (2016) MVR 306
Gnech Building Co and Town of Claremont [2018] WASAT 77
Landcorp and City of Stirling [2011] WASAT 202
Mastaglia and City of Cockburn [2021] WASAT 154
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Mohammadi v Bethune [2018] WASCA 98
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (The Panel case) [2004] HCA 14; (2004) 218 CLR 273
Newcastle City Council v Gio General Ltd [1997] HCA 53; (1997) 191 CLR 85
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132
Ross v R (1979) 141 CLR 432
Sunland Group Limited v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325
Taylor v Public Service Board (NSW) (1976) 137 CLR 208
Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These reasons deal with an important question of statutory construction in the context of Western Australian planning law.
That question is, in effect, whether a 'deemed provision'[1] is required to be read down in the light of a 'model provision'[2] which imposes an 'additional site and development requirement' on residential land in the Shire of Peppermint Grove Local Planning Scheme No 4 (LPS 4).
[1] The 'deemed provisions' being the provisions contained in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations).
[2] The 'model provisions' being the provisions contained in Sch 1 to the LPS Regulations.
The deemed provision in question is cl 60(b) which provides that development approval is not required for 'works'[3] that fall within the terms of cl 61.
[3] Defined in cl 1 of the deemed provisions to mean, relevantly, 'any demolition, erection, construction, alteration of or addition to any building or structure on the land'.
Clause 61 of the deemed provisions includes a table as to works which are exempt from development approval. Item 6 of that table provides that a single house that complies with the deemed-to-comply provisions of the R-Codes State Planning Policy 7.3 Residential Design Codes Volume 1 (R-Codes) is a form of works that does not require development approval (hereafter the exemption).
The model provision in question is item 1(a) in the table in cl 32(1) of LPS 4 which provides that on land within the Shire of Peppermint Grove (Shire) which is coded either R10, R12.5, R15 or R20, the maximum plot ratio for development is 0.5 unless otherwise approved under cl 34 (hereafter the plot ratio requirement).
For the reasons that follow, I find that on its proper construction, in the context of the LPS 4, cl 60(b) of the deemed provisions needs to be read down having regard to the plot ratio requirement. As a result, the Proposed Development requires approval under LPS 4.

Background

The following facts are agreed. I therefore find as follows.

The Subject Land

The Subject Land:
(a)is located on Irvine Street in the Shire;
(b)is formally known as Lot 69 on Diagram 63935, being the whole of the land contained in Certificate of Title Volume 1992 Folio 100 (Subject Land); and
(c)has an area of 785m² with a frontage of 17.6 metres and a depth of 44.85 metres.

Procedural history

On 17 February 2023, Ms McComish (Applicant) lodged, through her planning consultant, an application for development approval for a twostorey single house on the Subject Land (Proposed Development).
While the plot ratio for the Proposed Development is not agreed between the parties,[4] it is an agreed fact that it exceeds 0.5.
[4] The Applicant says the plot ratio is 0.66; the Respondent says it is 0.797.
On 27 June 2023, the Shire of Peppermint Grove (Shire or Respondent) refused the Proposed Development.[5] The refusal reasons included the fact that the proposed plot ratio exceeded the 0.5 provided for in the plot ratio requirement.

The deemed and model provisions

[5] Amended plans had been submitted through the Shire's assessment process.

LPS 4 was made pursuant to Pt 5 of the Planning and Development Act 2005 (WA) (PD Act). Section 69(1) of the PD Act provides that a local planning scheme (LPS) made be made:
…
(a)with the general objects of making suitable provision for the improvement, development and use of land in the [LPS] area; and
(b)[to make] provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.
Item 8 of Sch 7 to the PD Act provides that a LPS can be made in relation to development standards including, relevantly, the size, appearance, placement and location of development.
Section 69 is subject to s 256 of the PD Act and regulations made under it as well as ss 257A and 257B.[6]
[6] PD Act, s 69(3).
Part 15 of the PD Act deals with subsidiary legislation. Section 256 provides that the Governor, on the recommendation of the Planning Minister, may make regulations prescribing provisions that deal with any or all of the following:
(a)carrying out the general objects of local planning schemes;
(b)any matter set out in Schedule 7.
It follows that regulations made under Pt 15 can address any matter that may be dealt with by a LPS. Regulations made under s 256(1) of the PD Act are to be designated as either:[7]
(a)a model provision, being a provision to which section 257A applies; or
(b)a deemed provision, being a provision to which section 257B applies.
[7] PD Act, s 256(5).
Section 257A provides that:
(1)In this section —
model provision means a provision designated as a model provision under section 256(5)(a).
(2)Subject to subsection (3), a local planning scheme prepared or adopted by a local government must include any model provisions that —
(a)are prescribed by regulations in force at the time the scheme is approved under section 87; and
(b)apply to the scheme.
(3)When approving a local planning scheme under section 87, the Minister may approve the exclusion from, or variation in, the scheme of a model provision.
Section 257B provides that:
(1)In this section —
deemed provision means a provision designated as a deemed provision under section 256(5)(b).
(2)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, whether they are prescribed before or after the scheme comes into force.
(3)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.
(4)It is sufficient compliance with section 54(a), 87(3)(a), 91(1) or 92(2)(b) if a local planning scheme is published under that provision without the deemed provisions.
(5)Each local government, in preparing a local planning scheme or a consolidation of a local planning scheme, must ensure that the scheme is consistent with any deemed provision that applies to the scheme.
Perforce of reg 10(1) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations), the provisions contained in Sch 1 and Sch 2 are prescribed for the purposes of s 256 of the PD Act. Regulation 10(4) provides that:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text.

Planning framework

The Subject Land is zoned Urban in the Metropolitan Region Scheme and Residential in LPS 4 with a density code of R12.5.
LPS 4 commenced on 3 March 2017. Unsurprisingly, LPS 4 adopts the model provisions. Section 257A(2) of the PD Act provides that a LPS prepared or adopted by a local government must include any model provision that applies to the scheme. However, the Planning Minister may grant an exclusion from, or a variation to, a model provision.[8]
[8] PD Act, s 257A(3).
As noted, LPS 4 includes, as it must, the deemed provisions.[9]
[9] LPS 4, cl 7(a).
The term 'development' is not defined in LPS 4. Pursuant to cl 37, a word or expression that is not defined has the same meaning it has in the PD Act. By reason of s 4 of the PD Act, 'development' is defined to mean:
… the development or use of any land, including —
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works[.]
The purposes of LPS 4 are to inter alia:
(a)set out the [Shire's] planning aims and intentions[.];[10] and
(b)control and guide development[.][11]
[10] LPS 4, cl 8(a).
[11] LPS 4, cl 8(c).
The aims of LPS 4 are set out in cl 9. I note here that the aims of a particular LPS are not dictated, or assumed, by the model provisions. There are no default or boilerplate aims. It is for a local government, subject of course to the approval of the Planning Minister pursuant to Pt 5 of the PD Act, to determine the aims of its LPS.
In the context of LPS 4, the Shire's aims include:
(a)to maintain and encourage a high quality environment; preserve the amenity of the Shire and protect the quality and characteristics of the streetscapes;[12]
(b)to provide for orderly and proper planning;[13] and
(c)to provide the statutory basis for land use and development control within the Shire.[14]
[12] LPS 4, cl 9(a).
[13] LPS 4, cl 9(d).
[14] LPS 4, cl 9(e).
Clause 25(1) of LPS 4 provides that the R-Codes, as modified by cl 26, are to be read as part of [LPS 4].
Clause 26 modifies the application of the R-Codes to land within the Shire in terms of building height,[15] street setbacks[16] and the requirements for battle-axe subdivisions.[17]
[15] LPS 4, cl 26(1).
[16] LPS 4, cl 26(2).
[17] LPS 4, cl 26(3).
Part 4 of LPS 4 deals with general development requirements. It includes inter alia provisions dealing with the application of State planning policies as well as the incorporation of the R-Codes. It also includes provisions dealing with additional site and development requirements.
Clause 32 includes additional site and development requirements. It is set out as follows.
(1)The Table sets out requirements relating to development that are additional to those set out in the R-Codes, activity centre plans, local development plans or State or local planning policies.
Table 5 - Additional Site and Development Requirements

No Description of land Requirement

1 Residential (a) For R10, R 12.5, R15 and R20 Coded areas the maximum plot ratio shall be 0.5 unless otherwise determined by the local government[.]

(2)To the extent that a requirement referred to in subclause (1) is inconsistent with a requirement in the R-Codes, an activity centre plan, a local development plan or a State or local planning policy the requirement referred to in subclause (1) prevails.

Clause 34 of LPS 4 provides discretion for the Shire to approve development that does not comply with the additional site and development approvals contained in, relevantly, cl 32.
Part 7 of the deemed provisions deals with the requirement for development approval. Clause 60 of the deemed provisions provides that a person must not commence or carry out any works on, or use, land in the Scheme area unless:
(a)the person has obtained the development approval of the local government under Part 8; or
(b)development approval is not required for the development approval under clause 61.
Clause 61(1)(a) provides that development approval is not required for works of a class specified as follows:

Column 1
Works
Column 2

Conditions

6. The erection of, or alterations or additions to, a single house on a lot.
(a)   The R-Codes apply to the works.

(b)   The works comply with the deemed to comply provisions of the RCodes.

(c)   The works are not located in a heritageprotected place.

An exemption from development approval for single houses which comply with the deemed-to-comply provisions of the R-Codes has been in place since the commencement of the deemed provisions,[18] although the wording of the exemption has evolved over time.
[18] On 19 October 2015.
Part 8 of the deemed provisions contains detailed provisions as to how an application for development approval is to be made. Part 9, in turn, deals with the procedure for the assessment, including, where necessary, advertising[19] and determination of applications for development approval. These provisions provide for local governments to require further information from an applicant,[20] consultation with other authorities in relation to the application[21] and the criteria for determining development applications.[22]

The preliminary issue

[19] Deemed provisions, cl 64.

[20] Deemed provisions, cl 65A.

[21] Deemed provisions, cl 66.

[22] Deemed provisions, cl 67(2).

The parties consider, and I agree, that the issue for me is whether development approval is required for the Proposed Development.
The issue is purely a question of statutory construction and ultimately reduces to an evaluation of whether the plot ratio requirement, or the exemption, prevails having regard to the principles of construction. I turn, next, to those principles.
For completeness, I note that the Respondent identified a further issue in the event my answer to the agreed preliminary issue was 'no'. Given my answer on the preliminary issue, it is not necessary for me to address this issue further.

Principles of construction

LPS 4 has full force and effect as if enacted by the PD Act.[23] LPS 4 is subsidiary legislation and is therefore a written law,[24] and is to be construed in accordance with the orthodox canons of construction.[25]
[23] PD Act, s 87(4).
[24] Interpretation Act 1984 (WA), s 5.
[25] Brikmakers (A Division of BGC (Australia) Pty Ltd) and City of Swan [2021] WASAT 66; (2021) 102 SR (WA) 314 [30].
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.[26]
[26] 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).
In Sunland Group Limited v Gold Coast City Council,[27] a somewhat 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. Her Honour also noted that when inconsistencies or ambiguities arise, they are to be dealt with according to the established principles of statutory interpretation.[28]
[27] Sunland Group Limited v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325 (Sunland) [18] (Gordon J) citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384, [78].
[28] Sunland, [18] citing Brown v Tasmania [2017] HCA 43; (2017) 261 CLR 328 [452] (Gordon J).
The task of constructions begins, and ends, with the text of LPS 4. As the Court of Appeal explained in Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton (Australian Unity),[29] focusing on the statutory text facilities the comprehension of the meaning of legislation by persons whose conduct it regulates. As was further explained:
These considerations are no less important when the legislative instrument being construed is a planning scheme. 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[.][30]
[29] 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 (Australian Unity) [81] (Buss P, Murphy JA and Mitchell JA).
[30] Australian Unity [82].
Importantly, LPS 4 is to be construed in accordance with its evident town planning purpose.[31]
[31] Cann and Shire of Augusta-Margaret River [2021] WASAT 22 [70]; see also Landcorp and City of Stirling [2011] WASAT 202 [26].
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.
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.[32]
[32] Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 [37] (Banks-Smith J); see also Dao Ji Association and City of Gosnells [2020] WASAT 10 [96].

In construing a legislative provision, the task is not to have regard to any assumptions about the desired operation of the relevant Act in question.[33]
[33] 2 Thomas Road [39] citing 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).
However, as a matter of legislative context, it is relevant that planning schemes are not ordinarily drafted by Parliamentary Counsel. As a result, planning schemes should be construed broadly and sensibly, not pedantically.[34] However, in saying that, I note that in this instance both the deemed provisions and the model provisions were indeed prepared by Parliamentary Counsel.
[34] Australian Unity [84]; Re Shire of Mundaring; Ex Parte Solomon & Ors [2007] WASCA 132 [25] (McLure JA, Steytler P and Pullin JA agreeing).
In any event, as was explained by the Court of Appeal in Australian Unity,[35] notwithstanding planning schemes are not always the work of Parliamentary Counsel, the 'exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted'.

Applicant's submissions

[35] Australian Unity [84] (citations omitted).

The Applicant submits that the plot ratio requirement of LPS 4 cannot be construed as an additional or modified requirement of the RCodes because:
(a)the modifications to the R-Codes are expressly listed in cl 26 of LPS 4 and the requirement to adhere to a plot ratio is provided in cl 32;
(b)even if it could be argued that the plot ratio standard for single houses should have been properly included in cl 26:
(i)plot ratio is not a development standard applied to single houses under the R-Codes;
(ii)its inclusion could therefore not be properly construed as a 'modification' to a R-Code requirement;
(iii)the R-Codes expressly note that they cannot be amended to vary requirements 'unless it relates to matters expressly permitted under the R-Codes Vol 1 to be amended or modified'. In this case no such permission exists.
Clause 32(2) of LPS 4 provides that where the plot ratio requirement in cl 32(1) is inconsistent with the R-Codes, the plot ratio requirement nevertheless prevails. The Applicant submits that there is no inconsistency between the plot ratio requirement and the R-Codes, because plot ratio is not a development standard used in the R-Codes in the context of single houses.
Rather, the inconsistency is between the plot ratio requirement of LPS 4 and cl 60(b) of the deemed provisions.
By reason of s 257B(3) of the PD Act, where there is an inconsistency between a deemed provision and another provision of the LPS, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.
The exemption within the deemed provisions provides that the construction of a single house that complies with the deemed-to-comply provisions of the R-Codes, does not require development approval.
It is an agreed fact that the Proposed Development complies with the deemed-to-comply provisions of the R-Codes.
To the extent that LPS 4 includes an additional requirement (being the plot ratio requirement) it is a standard or requirement that is inconsistent[36] with cl 61(1) of the deemed provisions. The effect of cl 61(1) is the Proposed Development does not need approval under LPS 4.
[36] Having regard to the meaning of inconsistent applied in decisions such as Gnech Building Co and Town of Claremont [2018] WASAT 77; Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1.
In Mastaglia and City of Cockburn (Mastaglia),[37] the Tribunal stated:
219Ninthly, 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).
220In 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' (citations omitted).
[37] Mastaglia and City of Cockburn [2021] WASAT 154.
The Applicant submits it would be inconsistent with this purpose (of streamlining and standardising approval processes) for LPS 4 to impose additional standards which have the effect of circumventing the exemption, in circumstances where the deemed provisions were established to regularise and standardise such approaches.
Reading the plot ratio requirement down would be consistent with a purposive construction to LPS 4, which gives primacy to the deemed provisions.
If there is a planning need for single houses that comply with the deemed-to-comply provisions to nevertheless be subject to development approval, this can be achieved by either:
(a)designating an area as a heritage place, as that term is defined in cl 1A of the deemed provisions; or
(b)the designation of an area as a special control area which provides that development approval is required for otherwise exempt development.[38]
[38] Deemed provisions, cl 61(6)(a).
The Applicant accepts that, from the Respondent's viewpoint, she promotes a construction that may have unintended outcomes, by imposing different development standards, in that:
(a)a proposed single house which complies with the deemedtocomply provisions of the R-Codes is not required to comply with the plot ratio requirement; whereas
(b)a proposed single house which does not comply with the deemedto-comply provisions of the R-Codes is required to be assessed against both the R-Codes and any applicable provisions of LPS 4.
In response, the Applicant submits it may well not be an unintended consequence at all. That is to say, a proposed development that does not comply with the deemed-to-comply provisions of the RCodes may well require an additional development standard in the form of plot ratio to ensure that the proposed development is compatible with its setting.
Finally, even if it is an unintended consequence, this cannot change the effect of s 257B(3) of the PD Act, which is clear and unambiguous and militates against an exercise of rationalisation or harmonisation as contended for by the Respondent.

Respondent's submissions

The general principles of statutory construction are well-established and were summarised by the Court of Appeal in Mohammadi v Bethune.[39] The task requires attention to the text, context and purpose of the Act.
[39] Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza and Beech JJA).
The Respondent submits that considerations of context should be given regard at the first stage of construction, and not at some later stage. Context should be considered in its widest sense.
Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
The Respondent submits that discerning statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from a range of potential meanings, some of which may not be as immediately obvious as, or more awkward than, others, but none of which is wholly ungrammatical or unnatural. In such cases, the choice turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies.
In the interpretation of provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object.[40]
[40] Interpretation Act, s 18.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.[41]
[41] Taylor v Public Service Board (NSW) (1976) 137 CLR 208, 213 (Barwick CJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
The Respondent refers to the following statement from the plurality (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky Inc v Australian Broadcasting Authority (Project Blue Sky):
70A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
The Respondent notes that the general principles with respect to the construction of statutes apply to the construction of subsidiary or delegated legislation.[42]
[42] Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ).
The Respondent submits that, in the context of cl 32(1) of LPS 4, the word 'development' is a reference to all developments. Having regard to the definition of 'development', the term cannot, either textually or contextually, be restricted to a subset of developments (e.g. all developments, except a single house on a lot).
The language contained in the plot ratio requirement is clear and unambiguous. The requirements set out in the table in cl 32(1) are additional requirements than those provided for in the R-Codes. Those additional requirements apply to all developments, including the Proposed Development.
The Respondent submits that when regard is had to the structure of pts 7, 8 and 9 of the deemed provisions, the exemption contained in cl 60(b) appears to be aimed at exempting compliance with the detailed application and approval procedures contained in pts 8 and 9.
That is to say, the effect of cl 60(b) of the deemed provisions is that works that fall within one of the items identified in Column 1, and otherwise satisfies the requirements of Column 2 of the table in cl 61, are exempt from the need to comply with pts 7 and 8 of the deemed provisions.
However, in circumstances where the model provisions left it to local governments to devise specific additional requirements to those set out in the R-Codes and other plans and policies, and where any additional requirements require approval from the Planning Minister under Pt 5 of the PD Act, it is extremely doubtful that it was intended that a general provision would override the additional (specific and purpose-built) requirements that have been approved for a LPS.
The Respondent submits that to construe cl 60(b) of the deemed provisions as a general exemption from those requirements would be to offend the well-established principles of statutory interpretation explained by the High Court in Project Blue Sky (referred to at [69] above), including the requirement to give effect to the purpose and language of all provisions.
The construction advanced by the Applicant would, in effect, render the plot ratio requirement and cl 34 of LPS 4 superfluous in relation to a large number of developments within the Shire, and therefore defeat the purpose and language of the provisions.
In circumstances where there appears to be a conflict in the language of the plot ratio requirement and the exemption, the Respondent submits that the principles of construction require the conflict to be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will give best effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
The goals of each of the provisions would be harmoniously achieved by an interpretation which limited the exemption under cl 60(b) of the deemed provisions to compliance with the provisions of Pt 8, while still giving force and effect to the terms of the plot ratio requirement in cl 32(1) of LPS 4.
The Respondent submits that the exemption set out in cl 61 of the deemed provisions should be construed to provide that development approval under LPS 4 is not required if:
(a)the works are of a class specified in Column 1 of an item in the Table; and
(b)if conditions are set out in Column 2 of the Table opposite that item — all of those conditions are satisfied in relation to the works; and
(c)if there is compliance with the additional requirements set out in cl 32(1) of the Scheme or the approval of the Council has been obtained under cl 34(2) of the Scheme.
(Words in emphasis are required, in effect, to be read into cl 61).
The Respondent submits that the above interpretation would reconcile the apparent conflict entirely.
In response to an argument that such a construction gives primacy to cl 32 over cl 60(b), the Respondent submits that such an outcome is a logical consequence given that cl 32 is a specific purpose-built model provision designed to achieve the purposes and (specific and purposebuilt) aims of LPS 4 whereas cl 61 is a provision of general application.
Such a construction, the Respondent argues, would promote the purpose and object of LPS 4.
The Respondent submits that it is notable that a LPS must include the model provisions unless the Planning Minister approves an exclusion or variation.[43] The model provisions expressly provide for the R-Codes to be modified[44] and for site and development requirements additional to the R-Codes to be included in a LPS.[45] The modifications that may be made to the R-Codes may well extend beyond the deemed-to-comply requirements, and the permitted additional requirements by their nature necessarily extend beyond the deemed-to-comply requirements.
[43] PD Act, s 257A.
[44] Model provisions, cl 26.
[45] Model provisions, cl 32.
Further, the Respondent submits that it was evidently intended by the LPS Regulations that a LPS may include provisions for residential development in addition to, or beyond, the deemed-to-comply requirements of the R-Codes. It would be consistent with that statutory intention to construe cl 60(b) of the deemed provisions in this manner.
Alternatively, a similar harmonious outcome could be achieved by interpreting the additional requirements in the plot ratio requirement as additional deemed-to-comply provisions of the R-Codes. Such an interpretation is consistent with the model provisions which operate on the premise (as expressed in cls 26 and 32) that the R-Codes can be modified as well as added to.
On this interpretation, the conditions relating to item 6 of the table in cl 61(1) (the exemption) would not be satisfied unless the development complied with both the deemed-to-comply provisions in the R-Codes and the additional requirements set out in cl 32(1) of LPS 4. That is to say, on this construction, the plot ratio requirement would be understood to mean:
The Table sets out deemed-to-comply requirements relating to development that are additional to those set out in the R-Codes, activity centre plans, local development plans or State or local planning policies.
On either interpretation, the Proposed Development requires approval under LPS 4 as it does not comply with the plot ratio requirement.

Consideration

The question of statutory construction that arises for determination is not straight-forward.
The issue centres on whether the deemed provision can, and should, be read down in the context of a model provision in circumstances where, perforce of s 257B(3) of the PD Act, a deemed provision that 'is inconsistent with another provision of the [LPS]', is to prevail 'and the other provision is to the extent of the inconsistency of no effect'.
Both Ms Moharich, counsel for the Applicant, and Mr de Kerloy, counsel for the Respondent, advanced cogent and forceful arguments in support of the construction they each contended for.
I accept that the construction that is contended for by the Applicant is open, even persuasive. However, for the following eight reasons, I find that the Respondent's construction is to be preferred.
Firstly, it is important to note that s 257B(3) of the PD Act is not, of itself, a principle of construction. Rather, it forms part of the PD Act which informs, but does not dictate in an absolute sense, the construction of LPS 4. That is to say, notwithstanding s 257B(3), the orthodox process of statutory construction remains.
Section 257B(3) simply ensured that the deemed provisions became operative, and took effect, following the commencement of the LPS Regulations on 19 October 2015. The effect of s 257B(3) is that a deemed provision was to prevail over other 'inconsistent' provisions that were contained within LPSs.
Secondly, the application and effect of the deemed provisions, and the question of 'inconsistency', has been discussed in cases such as Puma Energy Australia and City of Cockburn (Puma Energy).[46]
[46] Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR(WA) 1.
In Puma Energy, the Tribunal found that (the then) cl 67 of the deemed provisions was 'inconsistent' (applying the ordinary meaning of that word being, in effect, 'lacking harmony or agreement')[47] with (the then) cl 10.2 of the relevant LPS. The inconsistency arose because both (the then) cl 67 and cl 10.2 were each a set of provisions that purported to set out the range of considerations that were to inform the exercise of discretion. The Tribunal formed the view that:
46As cl 67 of the deemed provisions seeks to provide a comprehensive and exhaustive set of considerations for the determination of a development application under TPS 3 and therefore to perform precisely the same function as cl 10.2 of TPS 3 (and all other provisions in local planning schemes based on cl 10.2 of the Model Scheme Text), cl 67 of the deemed provisions is inconsistent with cl 10.2 of TPS 3 (and all equivalent provisions in other local planning schemes). Applying the ordinary, natural meaning of 'inconsistency', there is incompatibility, incongruity and lack of harmony between the substance of cl 67 of the deemed provisions and the substance of cl 10.2 of the TPS 3, resulting from the 'appearance of exhaustiveness' of cl 67 of the deemed provisions on the subject of the matters for consideration in the determination of development applications under TPS 3. To adopt and adapt the language of Tobias JA in Castle Constructions at [55(h)]:
… Close attention to the particular and complex provisions of [cl 67 of the deemed provisions] indicate an appearance of exhaustiveness on the subject of [the matters for consideration in the determination of a development application under TPS 3] thereby creating an incompatibility and inconsistency between it and [cl 10.2 of TPS 3].
47In consequence, under s 257B(3) of the PD Act, cl 67 of the deemed provisions prevails over cl 10.2 of the Scheme text to the extent of the inconsistency. In effect, cl 67 of the deemed provisions has replaced cl 10.2 of TPS 3 (and all equivalent provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text) by virtue of s 257B(3) of the PD Act.
[47] Puma Energy [45].

The Tribunal subsequently applied Puma Energy in Gnech Building Co and Town of Claremont (Gnech Building Co).[48] In Gnech Building Co the 'inconsistency' arose from cl 25 of the relevant LPS and cl 60 of the deemed provisions in the context of an issue as to whether development approval was required under the LPS. The Tribunal stated:
77In our view, applying the reasoning in Puma Energy Australia and City of Cockburn, cl 60 of the deemed provisions is inconsistent with cl 25(1) of LPS 3, because both of these provisions clearly seek to provide a comprehensive and exhaustive statement of when development approval is required under LPS 3 (unless the development is of a type referred to in cl 61 of the deemed provisions or is identified as permitted development in cl 25(2) of LPS 3). Clause 60 of the deemed provisions and cl 25(1) of LPS 3 therefore perform precisely the same function. Applying the ordinary, natural meaning of 'inconsistency', there is an incompatibility, incongruity and lack of harmony between the substance of cl 60 of the deemed provisions and the substance of cl 25(1) of LPS 3, resulting from the 'appearance of exhaustiveness' of cl 60 of the deemed provisions on the subject matter of what development requires development approval under LPS 3.
[48] Gnech Building Co [77].
However, the effect of s 257B(3) must be carefully considered. It is simply not the case that any other LPS provision which touches on an issue that is addressed by the deemed provisions, will be rendered inoperative on the basis of an apparent inconsistency.
The decision in Ursula Frayne Catholic College and Town of Victoria Park (Ursula Frayne)[49] provides an example. There I was dealing with a planning framework which included a local development plan (LDP) that was to be read as part of the LPS. That LDP provided that further expansion of existing schools should not impinge the amenity of residential areas. The proposal in question was to allow school facilities to expand across a road so as to, in effect, encroach into a residential area.
[49] Ursula Frayne Catholic College and Town of Victoria Park [2020] WASAT 17; (2020) 99 SR (WA) 76.
In Ursula Frayne, no party submitted that the LDP no longer had application on account of it touching on the question of amenity, as well as purporting to inform the exercise of discretion, even though (then) cl 67 of the deemed provisions applied. In my reasons, I explained the following:
50I should add, for the avoidance of doubt, that to the extent that [the LDP] discusses amenity, it is not inconsistent with cl 67(n) of the deemed provisions in the sense contemplated by s 257B(3) of the PD Act.
51Clause 67(n) requires me to have 'due regard' to:
the amenity of the locality including the following:
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development.
52The term 'amenity' is defined in cl 1 of the deemed provisions to mean:
All those factors which combine to form the character of an area and include present and future amenity.
53As was made clear by the Tribunal in [Puma Energy], s 257B(3) of the PD Act operated to make the former cl 36(h) of (then) Town of Victoria Park Town Planning Scheme No 1 (TPS 1) redundant and of no effect of the basis of 'inconsistency'.
54Clause 36 of TPS 1 (as it then was) outlined the range of relevant planning considerations that arise in the exercise of discretion. Clause 36, including cl 36(h), which required the amenity of the locality to be conserved, was replaced with cl 67 of the deemed provisions at the commencement of the LPS Regulations on the basis that the two provisions were 'inconsistent': Puma Energy at [46] citing Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at [55(h)] (Tobias JA).
55However, [the LDP] is not inconsistent with cl 67 of the deemed provisions. The two provisions sit comfortably together. Clause 67 is a general provision that outlines a range of relevant considerations that might arise for consideration in a development application. [The LDP] is a specific plan that deals with a discrete area.
Similar considerations arise here. As I explained in Mastaglia, one of the purposes of the deemed provisions was to streamline and standardise development approval requirements and processes across all LPSs to ensure a baseline standard of consistency across different local governments.[50]
[50] Mastaglia [219].
However, the drafters of the LPS Regulations were plainly alive to the need to ensure the model provisions could accommodate, at some level, local planning needs within local planning frameworks. That is precisely why, inter alia, cls 9, 32, and 34 were included in the model provisions from their commencement.
It is trite to observe that, notwithstanding the deemed provisions, the planning needs of different local governments may vary and thus it is axiomatic that there should be capacity for a local planning framework to reflect, and respond to, local planning needs.
The force of such a proposition is, with respect, obvious. In my view, it only needs to be stated to be accepted.
Indeed, it is more than a proposition. Rather, in my view, I find the statutory purpose of including the model provisions (namely cls 9, 32 and 34) in the LPS Regulations was to ensure that local planning needs could still be accommodated, notwithstanding the commencement of the deemed provisions.
I simply cannot accept that the purpose of the LPS Regulations, and the model and deemed provisions, was to obliterate any dint of local variation between the planning needs and requirements of the 139 local governments across Western Australia. Providing a more streamlined approach, which was no doubt one of the key purposes of the deemed provisions, is not the same as completely removing any room for local planning requirements to be accommodated.
To construe these provisions in a way that requires any model provision, which has been prepared and approved by the Planning Minister pursuant to s 87(4) of the PD Act, to be read down on account of the fact it touches on a matter which is dealt with by the deemed provisions, cannot have been the purpose and intent of enacting the model provisions, in particular cl 32 which provides for the making of additional development controls and standards beyond those found in, relevantly, the R-Codes.
Thirdly, because it involves a model provision, this case is factually very different from the applicable planning framework under consideration in Mastaglia.
In Mastaglia, the LDP in question had not been updated or amended since the commencement of the deemed provisions and therefore could no longer be taken to have the application and effect it once did. I explained that:
229As 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.
230However, 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.
However, in this case, the tension arises not from the 'carcass' of a provision that was in place prior to the commencement of the deemed provisions, but from LPS 4 which only commenced on 3 March 2017. LPS 4 was prepared pursuant to, and based on, the model and deemed provisions.
The modifications to the requirements for development approval within the Shire are authorised by the introductory words of cl 32(1), which is a model provision. It is also the case that the content of cl 32 that has been added by the Shire has been duly prepared and approved by the Planning Minister and has the force of law.
It follows that Mastaglia can, and should, be distinguished from the facts that arise here.
Fourthly, and following on from above, by its express terms, cl 32(1)(a) is plainly authorised to include provisions that apply in addition to those that may be set out in, relevantly, the RCodes. The plot ratio requirement provides that, in effect, even though the RCodes do not apply plot ratio as a standard on single houses, nevertheless, within areas coded R10, R 12.5, R15 or R20 of LPS 4, a plot ratio requirement of 0.5 will apply on all residential land, unless approval for a variation is granted under cl 34.
I rhetorically ask, what would be the point of including such a provision in LPS 4 if it were required to be read down as against cl 60(b) of the deemed provisions. In the context of the Shire, which I will discuss further below, it is likely to have little to no practical application.
In my view, cl 32(1)(a) applies notwithstanding cl 60(b) of the deemed provisions. The two provisions, in the context of LPS 4, are capable of being read together such that the exemption only applies if the development meets the deemed-to-comply requirements of the R-Codes and the requirements provided elsewhere in LPS 4, namely cl 32(1). To read LPS 4 otherwise would render the plot ratio requirement largely redundant, a point to which I will return to below.
Furthermore, cl 32(2) of LPS 4 provides that a requirement of cl 32(1) is inconsistent with a requirement of, relevantly, the R-Codes, the requirement in cl 32(1) prevails. While it may be so that there is no conflict per se between the plot ratio requirement in cl 32(1) and the RCodes, cl 32(2) plainly establishes cl 32(1) as a leading textual provision to which other provisions should yield. This no doubt reflects that it is a specific provision developed for application as part of LPS 4. In addition, there is also no textual need for cl 32(2) to expressly refer to the deemed provisions, given that they have been incorporated into, and are to be read as part of, LPS 4 itself.[51]
[51] LPS 4, cl 7(1)(a).
The text of cl 32 is persuasive that the construction contended for by the Respondent is to be preferred.
Fifthly, I agree with the Respondent that context is required to be considered at first instance, and not only if an ambiguity arises. It is also the case that context needs to be considered in its widest sense.[52]
[52] Newcastle City Council v Gio General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 (McHugh J); referred to by McHugh ACJ, Gummow J and Hayne J in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (The Panel case) [2004] HCA 14; (2004) 218 CLR 273 [11].
As a matter of context, it is not without significance that the Shire is, almost exclusively, a low-density residential locality. There are no industrial lands and only a few mixed-use and R80 lots, together with a smallish district centre, along Stirling Highway. The remainder of the Shire's zoned land is for low density residential.
Even taking a cursory glance at the scheme map for LPS 4, it is apparent those four codings to which the plot ratio requirements is directed (being land coded either R10, R12.5, R15 or R20) would, I find, represent well over 90% of the zoned land within the Shire. That is to say, the overwhelmingly vast use zoned land within the Shire is, in general terms, planned to be directed towards single house developments to which the plot ratio requirement applies.
If the Applicant's construction were to be preferred, the plot ratio requirement of LPS 4 would, in practical terms, be rendered all but superfluous. To my mind, this fact reinforces the construction advanced by the Respondent. Otherwise, the plot ratio requirement becomes, in real terms, almost completely inutile, which is a construction to be avoided, if at all possible, having regard to the principles enunciated in Project Blue Sky.
Sixthly, further, in my view, and again as a matter of context, there is a discernible planning logic, and thus planning purpose, within the plot ratio requirement. It is a notorious fact that the Shire is a highly regarded, affluent, small and exclusive, leafy western suburb enclave where large, indeed exceedingly large, developments (even single houses) may be put forward on what are, objectively viewed, generally very large residential lots.
One only has to cast one's memory back to the ill-fated 'Taj on Swan' development (an exceedingly large single house on a single block of 6,582m²) proposed by the Oswal family, to appreciate why a plot ratio standard might be an appropriate planning control in this locality, even though it is not a general requirement found in the R-Codes.
Seventhly, it is also the case that I do not accept the Applicant's submission that if the Shire wanted to apply plot ratio requirements to single house developments, it could instead declare a heritage control area or special control area so as to, as it were, avoid the application of cl 60(b) of the deemed provisions.
To the first of those propositions, I cannot accept that a heritage control can or ought to be applied to an area where there are no known heritage values that require protection.
To the second, I do not accept that a special control area would be appropriate. The notes to Pt 5 of Sch 1 to the LPS Regulations provide that a special control area is to apply to areas which are significant for a particular reason. The facts here do not support the establishment of a special control area. It is not the case that the plot ratio requirement applies only to a discrete part of LPS 4. Rather, as I have explained, it is a general requirement that applies to over 90% of the zoned land within LPS 4.
I find that a special control area is not the appropriate vehicle to apply a plot ratio control here.
Finally, even though it may be regarded as a presumptive rule of last resort, cl 32(1), which was prepared as part of LPS 4, was made, and approved, against the backdrop of the deemed provisions (which were, as a matter of fact, in operation prior to the gazettal of LPS 4 on 3 March 2017) and the exemption that was provided for deemedtocomply single houses in residential areas in the Shire. It is therefore the case that cl 32(1) is, in practical terms, a later provision than cl 60(b) of the deemed provisions, and therefore prevails.[53]
[53] Ross v R (1979) 141 CLR 432, 440 (Gibbs J).
For these reasons, my answer to the preliminary issue is 'yes'. That is to say, I find that development approval is required for the Proposed Development under LPS 4.

Orders

The Tribunal orders:
1.The answer to the preliminary issue is that the Proposed Development requires approval under the Shire of Peppermint Grove Local Planning Scheme No 4.
2.The matter is listed to a further directions hearing at a time and date to be confirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
7 DECEMBER 2023

No	Description of land	Requirement
1	Residential	(a) For R10, R 12.5, R15 and R20 Coded areas the maximum plot ratio shall be 0.5 unless otherwise determined by the local government[.]