McComish v Shire of Peppermint Grove
[2024] WASC 502
•23 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MCCOMISH -v- SHIRE OF PEPPERMINT GROVE [2024] WASC 502
CORAM: COBBY J
HEARD: 10 JUNE 2024, FURTHER SUBMISSIONS 14 & 19 JUNE 2024
DELIVERED : 23 DECEMBER 2024
FILE NO/S: GDA 2 of 2024
BETWEEN: SOPHIE CLAIRE LEEUWIN MCCOMISH
Appellant
AND
SHIRE OF PEPPERMINT GROVE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: SENIOR MEMBER WILLEY
Citation: McCOMISH AND SHIRE OF PEPPERMINT GROVE [2023] WASAT 121
File Number : DR 116/2023
Catchwords:
Appeal - Statutory interpretation - Local planning scheme - Deemed and model provisions - Inconsistency
Legislation:
Planning and Development Act 2005 (WA)
Planning and Development Amendment Act 2020 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Residential Design Codes 2021
Shire of Peppermint Grove Local Planning Scheme No 4
State Administrative Act 2005 (WA)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | G R Donaldson SC & B A Moharich |
| Respondent | : | K J Mony De Kerloy & C A Slarke |
Solicitors:
| Appellant | : | Lemonis & Tantiprasut Lawyers |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Coffs Harbour Environment Centre Inc v Minister for Planning & Coffs Harbour City Council (1994) 84 LGERA 324
Foster v Aloni [1951] VLR 481
Mastaglia and City of Cockburn [2021] WASAT 154
McComish and Shire of Peppermint Grove [2023] WASAT 121
Prichard v M 6
8 Legal Pty Ltd [2024] WASCA 4
Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522
Taylor v The Owners - Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38
COBBY J:
This is an appeal from a decision on a preliminary issue by the State Administrative Tribunal[1] to the effect that cl 60(b) of the deemed provisions contained in sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) and forming part of the Shire of Peppermint Grove Local Planning Scheme No 4 (Scheme) by operation of s 257B of the Planning and Development Act 2005 (Act) was to be read down so as to give effect to cl 32 of the Scheme.
[1] McComish and Shire of Peppermint Grove [2023] WASAT 121.
For the reasons which follow, the Tribunal erred in law in failing to give s 257B(3) of the Act its full force and effect in determining the proper construction of the Scheme. Contrary to the approach taken by the Tribunal, s 257B(3) requires a model provision incorporated in a local planning scheme, such as cl 32, be held to be of no effect to the extent that it is inconsistent with a deemed provision.
Background
The appellant is the owner of land located in Peppermint Grove. Development of the land is accordingly subject to the Scheme.
The land is zoned residential, with a residential density coding of R 12.5.
The Scheme became operative on 3 March 2017. Clause 25 of the Scheme provides that the R‑Codes,[2] modified as set out in cl 26, are to be read as part of the Scheme. The modifications in cl 26 relate to building heights, street setbacks and battleaxe subdivisions, none of which are presently relevant.
[2] The Residential Design Codes, prepared as a State planning policy under s 26(1) of the Act. The R-Codes were deemed to be planning codes from the date of commencement of the Planning and Development Amendment Act 2020 (WA): s 291(1)and (2), Act.
Clause 32 of the Scheme provides requirements which are 'additional to those set out in the R‑Codes' and includes Table 5 as follows:
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[.]
Clause 32(2) provides:
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 confers power for the Shire to approve development which does not comply with the additional site and development approvals contained in, relevantly, cl 32. Clause 32 therefore imposes an obligation to obtain development approval where the maximum plot ratio of the proposed development will exceed 0.5.
However, cl 60(b) of the deemed provisions provides that a person must not carry out any works on or use land in the Scheme Area unless development approval is not required for the development under cl 61.
Clause 61(1) of the deemed provisions provides:
Development approval is not required for works 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.
At the material times, the Table provided (so far as is relevant):
Column 1
WorksColumn 2
Conditions1.
The demolition or removal of any of the following -
(a) a single house;
(b) an ancillary dwelling;
(c) an outbuilding;
(d) an external fixture;
(e) a boundary wall or fence;
(f) a patio;
(g) a pergola;
(h) a verandah;
(i) a deck;
(j) a garage;
(k) a carport;
(l) a swimming pool;
(m) shade sails.
The works are not located in a heritage‑protected place.
…
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 R‑Codes.
(c) The works are not located in a heritage‑protected place.
Notes for this subclause:
…
4.Clause 1B sets out circumstances in which development is taken to comply with a deemed‑to‑comply provision of the R‑Codes.
It was common ground that the R‑Codes applied to the appellant's proposed development before the Tribunal and in the appeal.
The expression 'deemed‑to‑comply provision' was defined by cl 1 of the deemed provisions to mean 'a provision of the R‑Codes described in the R‑Codes as a deemed‑to‑comply provision or a deemed‑to‑comply requirement'.
It was common ground before the Tribunal and on the appeal that the single house proposed to be constructed by the appellant on the land complied with the applicable deemed‑to‑comply requirements contained in the R‑Codes as modified by cl 26 of the Scheme. It was also common ground that the proposed development did not satisfy cl 32, as it had a plot ratio exceeding 0.5.
Accordingly, the effect of cl 60(b) and cl 61 of the deemed provisions, read together, was that development approval was not required in relation to the appellant's proposed development, whereas the effect of cl 32 was that approval was required to be obtained under cl 34.
Clause 32(1) of the Scheme and cl 60(b) of the deemed provisions are inconsistent, because cl 60(b), read with cl 61 of the deemed provisions, provides that development approval is not required. The ordinary meaning of 'inconsistent' includes 'lacking in harmony between different parts or elements' or 'self‑contradictory';[3] 'discrepancy' or 'incongruity'.[4] There is a 'want of consistency or congruity', 'lack of accordance or harmony' or 'incompatibility, contrariety, or opposition'[5] between cl 60(b) and cl 32.
[3] Macquarie Dictionary.
[4] Shorter Oxford English Dictionary.
[5] Coffs Harbour Environment Centre Inc v Minister for Planning & Coffs Harbour City Council (1994) 84 LGERA 324, 331.
The legislative regime
Part 5 of the Act provides for the preparation of local planning schemes by local governments. Section 69(1) of the Act provides that a local planning scheme may be made under that Act:
(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
(b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7 [to the Act].
The matters which may be addressed in a planning scheme include standards for the development of any class or kind of building, including open space,[6] and the approval (including subject to conditions) or refusal of 'any use or class or kind of development'.[7]
[6] Item 8, sch 7.
[7] Item 9, sch 7.
Section 69(3) provides that s 69 applies 'subject to s 256 and the regulations made under it and sections 257A and 257B'. Those sections and regulations therefore prevail to the extent that there is any inconsistency between any of them and s 69.[8]
[8] Re Bland Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522, 533.
Item 8 of sch 7 to the Act provides that provision may be made for development standards, being standards for the development of any class or kind of building, structure, work or advertisement.
Section 256(1) provides for regulations to be made that deal with the carrying out of the general objects of local planning schemes as set out in s 69(1)(a) and any matter set out in sch 7 to the Act.
Section 256(4) provides that, unless the regulations provide otherwise, regulations made under s 256(1) apply to all local planning schemes, while s 256(5) requires regulations made pursuant to s 256(1) to be designated as either:
(a)a model provision,[9] in which case s 257A applies; or
(b)a deemed provision,[10] in which case s 257B applies.
[9] s 256(5)(a), Act.
[10] s 256(5)(b), Act.
Section 257A provides that a local planning scheme prepared or adopted by a local government must include any applicable model provisions that are prescribed by regulations in force at the time the local planning scheme is approved by the Minister under s 87[11] unless the Minister approves the exclusion or variation of a model provision in that scheme.[12]
[11] s 257A(2), Act.
[12] s 257A(3), Act.
Section 257B relevantly provides that:
(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.
…
(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.
Sections 256, 257A and 257B were all inserted in the Act by the Approvals and Related Reforms (No 4) Planning Act 2010 (WA).
It is obvious that the legislative intention underlying the introduction of those provisions was the standardisation of the provisions of local government schemes within Western Australia. All such schemes are to include the deemed provisions, with the balance of a particular local government scheme being based upon the model provisions.
That is supported by the second reading speech in relation to the 2010 amendments. In Mastaglia and City of Cockburn,[13] the learned Senior Member stated:
[T]o 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 [Act] Act, in its current form, was inserted by s 64 of the Approvals and Related Reforms (No 4) (Planning) Act 2010 (WA).
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'. (citations omitted)
[13] Mastaglia and City of Cockburn [2021] WASAT 154 [219] ‑ [220].
No regulations were made pursuant to s 256(1) when those amendments took effect.
The Regulations were not gazetted until 27 August 2015. Regulation 10(2) provides that the provisions in sch 1 are model provisions, to which s 257A applies, while reg 10(4) provides:
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.
A feature of the deemed provisions, consistent with the second reading speech referred to above, is that cl 61 specifies that obtaining development approval is unnecessary in a range of circumstances.
A number of the model provisions contained in sch 1 to the Regulations, such as cl 19, cl 20, cl 21 and cl 32, contemplate that the local government will specify the additional conditions or restrictions the subject of the particular clause. In particular, cl 32 of the model provisions clearly contemplates that a local government may impose a requirement that is additional to those contained in the R‑Codes.
Section 87(1) requires a local government to submit a local planning scheme or amendment thereto prepared or adopted by that local government to the Minister for approval.
Section 87(2) provides that the Minister may approve the submitted scheme or amendment, require the local government to modify it as specified by the Minister and resubmit the modified scheme or amendment for approval, or refuse to approve it.
The Western Australian Planning Commission is required to cause the local planning scheme or amendment to be published in the Government Gazette once approved by the Minister.[14] A local planning scheme or amendment has 'full force and effect as if it were enacted by [the Act]' once approved by the Minister and gazetted.[15]
[14] s 87(3), Act.
[15] s 87(4), Act.
The Tribunal's decision
In the Tribunal, the learned Senior Member identified the issue for determination as 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 [Act], a deemed provision that is "inconsistent with another provision of the [Scheme]", is to prevail "and the other provision is to the extent of the inconsistency of no effect".'[16]
[16] McComish and Shire of Peppermint Grove [90].
The learned Senior Member found that cl 61 of the deemed provisions was to be read down. In coming to that conclusion, the learned Senior Member said:[17]
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 [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.
[17] McComish and Shire of Peppermint Grove [106] ‑ [107].
In approaching the task of construction in that way, the Tribunal erred in law. The Court of Appeal recently emphasised that '[l]egislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions',[18] referring to what Gageler and Keane JJ had said in Taylorv The Owners - Strata Plan 11564:[19]
The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[18] Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [44].
[19] Taylor v The Owners - Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 [65].
The appellant submits that the Tribunal erred in coming to that conclusion. She submits that, once it was identified that cl 32 of the Scheme was inconsistent with cl 61 of the deemed provisions, s 257B(3) required that cl 32 of the Scheme be declared invalid to the extent it was inconsistent with cl 61(1).
Determination
The principles of statutory construction were recently summarised by the Court of Appeal in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd,[20] which I adopt without repeating here. As emphasised there by the Court of Appeal, the focus of statutory construction is upon the text of the legislation to be construed, having regard to its context and purpose, because the statutory text is the surest guide to the legislature's intention.
[20] Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 [200] ‑ [207].
Section 257B(3) provides that, where there is an inconsistency between a deemed provision that has effect as part of a local planning scheme and another provision of that scheme, the deemed provision prevails and the other provision is of no effect to the extent of the inconsistency.
The approach taken by the learned Senior Member in the Tribunal therefore did not accord with the text of s 257B(3).
In this regard, the learned Senior Member stated that:[21]
[I]t is important to note that s 257B(3) of the [Act] is not, of itself, a principle of construction. Rather, it forms part of the [Act] which informs, but does not dictate in an absolute sense, the construction of [the Scheme local plannings schemes]. 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 [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 [local planning schemes].
[21] McComish and Shire of Peppermint Grove [9] ‑ [10].
In my view, the learned Senior Member erred in holding that s 257B(3) does not specify a principle of construction to be applied when construing a local planning scheme, that approach being contrary to authority. In Coffs Harbour Environment Centre Inc v Minister for Planning & Coffs Harbour City Council, Kirby P (as his Honour then was) stated:[22]
[22] Coffs Harbour Environment Centre Inc v Minister for Planning & Coffs Harbour City Council (334).
Part 3 of the Act concerns 'environmental planning instruments'. Section 4 of the Act relevantly defines 'environmental planning instrument' as meaning, in part, 'a State environmental planning policy, a regional environmental plan, or a local environmental plan'. Similarly, s 4 of the Act defines 'regional environmental plan' and 'local environmental plan' in terms of plans made by the respondent Minister under s 51 and s 70 of the Act, respectively. In general terms, Pt 3 of the Act provides for the making, content, operation and procedures relevant to environmental planning instruments. Of particular relevance to this case are the provisions affecting the manner in which one environmental planning instrument operates as against another, that is, the inconsistency provisions.
Section 36 of the Act deals expressly with inconsistency between environmental planning instruments. The section provides:
'36. In the event of an inconsistency between environmental planning instruments, then, to the extent of the inconsistency and unless otherwise provided:
(a)there is no general presumption that:
(i)a State environmental planning policy prevails over a regional environmental plan or a local environmental plan; or
(ii)a regional environmental plan prevails over a local environmental plan; and
(b)the provisions of a later instrument prevail over the provisions of an earlier instrument, unless the contrary intention appears.'
As a result of s 36 of the Act, where an inconsistency appears to exist between environmental planning instruments three principles of construction may be taken into account:
1.There is no presumption of construction that, to the extent of any inconsistency, the provisions of an environmental planning instrument are to be accorded priority over another such instrument in accordance with the level of instrument, that is, State environmental planning policy over regional environmental plan over local environmental plan: see 36(a)(i) of the Act. To an extent, this principle of no priority is reinforced by s 74 of the Act. Section 74(1) of the Act provides that 'an environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type' (emphasis added). For the purposes of s 74(1) of the Act 'amended' includes 'altered, varied or repealed': see s 74(3) of the Act.
2.It is a presumption of construction that, to the extent of any inconsistency, the provisions of an instrument made later in time will prevail over one made earlier: see s 36(b) of the Act.
3.Both the principles of construction just noted may be displaced by a provision within the instrument indicating to the contrary. This is made clear by the words 'unless otherwise provided' in the first sentence of s 36 of the Act and again in s 36(b) of the Act where it is said 'unless a contrary intention appears'. For reasons which appear in the discussion of cl 4 of the regional environmental plan, below, the relevant provision otherwise or 'contrary intention' must be that of the latter, as opposed to former, instrument. These are the three applicable rules of construction which emerge from s 36 of the Act and are to be applied in this case. (emphasis added)
Although s 257B is substantially less complex than the legislation considered in Coffs Harbour, the decision is authority for the principle that the legislature may specify the manner in which subsidiary legislation is to be construed.
In addition, the effect attributed to s 257B(3) in [10] of the Tribunal's reasons was, with respect, misstated. Section 257B(3) did not operate to ensure that the deemed provisions became operative upon the Regulations coming into effect, as there stated. That was achieved by s 257B(2), which provides that deemed provisions have effect and may be enforced as part of a local planning scheme regardless of when the deemed provisions are prescribed. Section 257B(3) is concerned with the inconsistencies which may arise between the deemed provisions and either the model provisions or the provisions of any existing scheme which predates the standardised model of local planning schemes introduced by the 2010 amendments to the Act.
The context in which s 257B(3) is to be construed supports the text of the subsection being given its literal meaning, and is against the proposition that s 257B(3) does not contain a specific principle of statutory construction. The legislative regime established by the Act envisages that a local planning scheme will contain both the deemed provisions and the model provisions, subject only to one or more of the model provisions being excluded or varied by the Minister under s 257A(3).
However, while the model provisions contemplate that a local government will determine what conditions and restrictions will be specified in certain of the model provisions, of which cl 32 is one, the scope of the ability to do so is circumscribed by s 257B(5). A local government is essentially prevented from proposing that a local planning scheme contain provisions inconsistent with the deemed provisions by s 257B(5), which imposes a positive obligation on a local government to ensure that a proposed scheme or consolidation of a proposed scheme is consistent with any deemed provision that applies to the scheme.
I am unable to find any reference in the Tribunal's reasons to s 257B(5), save for where s 257B is set out in full at [18] of the Tribunal's reasons.
It is to be noted that s 257B(5) does not prevent a local government implementing additional planning requirements. What it and s 257B(3) prevent is a local government seeking to implement planning requirements inconsistent with the deemed provisions.
In addition, the deemed and model provisions comprising any particular local planning scheme will initially take effect simultaneously, upon the gazettal of the scheme. However, s 257B(2) provides that the deemed provisions may be amended, and have effect whether they are prescribed before or after a local planning scheme comes into force. There was accordingly an obvious need for the legislature to promote certainty by making express provision for how any inconsistency between a deemed provision and a model provision is to be resolved.
Finally in this regard, giving s 257B(3) its literal meaning resolves any uncertainty which might otherwise arise from the operation of s 87(4), which provides that a local planning scheme takes effect as if enacted by the Act, in construing a local planning scheme.[23]
[23] As to which see Foster v Aloni [1951] VLR 481.
Although the learned Senior Member and the appellant placed some importance upon the Minister being responsible for approving local planning schemes under s 87(4), the importance of that approval is diminished, in my view, by the restriction placed on a local government's power to propose a scheme containing a term which is inconsistent with a deemed provision.
For the same reason, I consider that the Minister's power to require amendments to a proposed scheme under s 87(2) does not extend to authorising a scheme which contains a model provision inconsistent with a deemed provision.
Accordingly, I consider that s 257B(3) is to be given effect according to its terms, such that a provision of a local planning scheme which is inconsistent with a deemed provision is of no effect to the extent of the inconsistency. I would therefore allow the appeal.[24]
[24] I granted leave to appeal in the course of the hearing, the questions of the proper construction of the Act and the Scheme being questions of law.
The correct answer to the preliminary question before the Tribunal was therefore that the proposed development does not require approval under the Scheme.
I will hear counsel as to the form of the orders to give effect to these reasons and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
23 DECEMBER 2024
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