MULTIPLEX MARINE PARADE PTY LTD and TOWN OF COTTESLOE - [2005] WASAT 159

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928

CITATION: MULTIPLEX MARINE PARADE PTY LTD and TOWN OF COTTESLOE [2005] WASAT 159

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: 30 JUNE 2005

DELIVERED : 8 JULY 2005

FILE NO/S: RD 350 of 2005

BETWEEN: MULTIPLEX MARINE PARADE PTY LTD
Applicant
AND
TOWN OF COTTESLOE
Respondent

Catchwords:

Preliminary issue - Whether power of Council to consent to development of place listed for heritage purposes under town planning scheme includes the power to vary requirements or standards contained in town planning scheme

Legislation:

Town of Cottesloe Town Planning Scheme No 2

Town Planning and Development Act 1928 (WA), s 2(1)

Result:

Preliminary issue decided affirmatively

Category: B

Representation:

Counsel:

Applicant: Mr W Martin QC and Mr M J Hardy
Respondent: Mr M McCusker QC and Mr JCW Skinner

Solicitors:

Applicant: Hardy Bowen
Respondent: Jackson McDonald

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

Claude Neon Limited v City of Perth and Metropolitan Region Planning Authority [1983] WAR 147
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 - 424
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

The applicant ("Multiplex") applied to the Tribunal for review of the decision of the Town of Cottesloe refusing approval to redevelop the Cottesloe Hotel Site at Lot 39, Marine Parade, Cottesloe in December 2004.
Prior to hearing the merits of Multiplex's application the Tribunal directed it would determine a preliminary issue.
The issue was whether it is open to the Town of Cottesloe Council to vary, or effectively vary, requirements or development standards laid down in the Town of Cottesloe Town Planning Scheme No 2 ("TPS 2") by granting written consent to the proposed redevelopment under Pt VI of TPS 2.
Part VI deals with conservation and preservation of places of natural beauty and historic buildings and objects of historic or scientific interest.
The Tribunal determined that in appropriate circumstances, the Council's power under Pt VI may be used to vary, or effectively to vary requirements or development standards laid out in TPS 2.

The Council's decision

By application dated 18 February 2005 the applicant ("Multiplex") applied to the State Administrative Tribunal to review the decision of the respondent ("Town of Cottesloe") made 22 December 2004 refusing Multiplex's application for approval to redevelop the Cottesloe Beach Hotel at 104, Lot 39, Marine Parade, Cottesloe, as detailed in plans received by the Town on 14 December 2004. The application for approval was made under the Town of Cottesloe Town Planning Scheme No 2 ("TSP 2").
The Town of Cottesloe Council gave reasons for its decision to refuse Multiplex's application, in the following terms –
"(1)The proposal manifestly exceeds the statutory height requirements under TPS 2;
(2)Would unduly affect views to and from Cottesloe beach;
(3)The proposal manifestly overshadows the beach and neighbouring properties, and this is significantly more than would be the case if the proposal did not exceed 12 metres;
(4)Would have a detrimental impact on views from surrounding properties;
(5)Would negatively affect the adjourning properties and the streetscape due to the proposed building height and bulk;
(6)The proposal manifestly fails to conform with the parking standards in TPS 2;
(7)The proposal manifestly exceeds the plot ratio standards in TPS 2;
(8)The proposal manifestly exceeds the site coverage standards in TPS 2;
(9)The preservation of the façade does not warrant the manifestly excessive concessions sought by the applicant;
(10)The amenity of the neighbouring area would be unreasonably diminished and the area's orderly and proper planning negatively impacted, if such concessions or variations were granted;
(11)The adverse affect on the Norfolk Pines in John Street;
(12)Does not satisfy the requirements of the Western Australia Planning Commission in terms of a variety of short term accommodation;
(13)The manifestly excessive concessions or variations to the factors set out above are not sufficiently offset in terms of a reduction in:
a)anti-social behaviour associated with the removal of the existing beer garden;
b)the existing lack of on‑site parking for the site;
c)any potential contribution to tourism and hospitality facilities in the area;
d)any conformity with aspects of the Council's Beachfront Development Objectives; and
e)any potential cash in lieu of car parking."

The "preliminary issue"

On 3 March 2005, the Town of Cottesloe filed a response statement that addressed a number of the reasons already given by the Council for refusing Multiplex's application, but also raised as a "preliminary issue" an issue that the Town had not earlier taken as a reason for refusing the application. The Town stated that it had no power under TPS 2 to grant an approval under Pt VII of TPS 2 in respect of the proposed development.
On 10 May 2005, after some earlier procedural hearings, the Tribunal ordered, amongst other things, that the Town of Cottesloe file a statement of issues, facts and contentions in relation to the decision under review, as well as a bundle of the documents it was required to file in the Tribunal under s 24 of the State Administrative Tribunal Act 2004 (WA). The Tribunal further ordered that Multiplex file a responding statement of issues, facts and contentions and any documents upon which it wished to rely at the hearing of the application.
On 27 May 2005, the Tribunal further ordered, in light of the statements of issues, facts and contentions filed by the parties, that the issue described as "Issue 1" or the "preliminary issue" in the respondent's statement of issues, facts and contentions filed in May 2005 and responded to in the applicant's statement of issues, facts and contentions filed 24 May 2005, and further dealt with in the respondent's statement in response filed 26 May 2005, be set down for hearing on 30 June 2005.
In short, the preliminary issue raised is whether, under TPS 2, it is within the power of the Town of Cottesloe Council to approve Multiplex's application in circumstances where, on the face of Multiplex's proposal, the development would fail to meet plot ratio, site coverage, height and building boundary standards or requirements laid down by TPS 2.
The Tribunal ordered that the preliminary issue would be determined on the Town of Cottesloe's concession, made solely for the purposes of determining the preliminary issue, that the proposed development is "on, in or in relation to" the 1937 façade and the Norfolk Island Pines for the purposes of TPS 2 cl 6.2.1.
The relevance of the Town of Cottesloe's concession arises from the fact that Sch 1 of TPS 2, entitled – "Places Of Natural Beauty And Historic Buildings And Objects Of Historical Or Scientific Interest", includes the following entries:

Name

Location

Description

26.

Norfolk Island Pines

Forrest Street from Marine Parade to Marmion Street; John Street; Broome Street from Forrest Street to Napier Street and Reserve 3235 to Grant Street; Cottesloe main beach

Avenues and stands of tall, mature, Norfolk Island Pines, some planted circa 1905.

27.

Façade, Cottesloe Beach Hotel

No 104, Lot 39 Marine Parade, Cottesloe

Two storey rendered façade constructed circa 1937.

A question arises as to whether by reason of the provisions of TPS Pt VI, the Council has the power to approve the proposed development, notwithstanding the apparent fact that it does not comply with relevant requirements and standards in TPS 2.

The need for approval under TPS 2

In an application for planning approval dated 21 September 2004, made under TPS 2, Multiplex applied to the Town of Cottesloe for the approval of a proposed development described in the application as "Redevelopment of Cottesloe Beach Hotel" at Lot 39 Marine Parade, Cottesloe.
By an application for approval to commence development made under the Metropolitan Region Scheme dated 16 September 2004, Multiplex also sought the Town's approval to the "Redevelopment of Cottesloe Beach Hotel" under the Metropolitan Region Town Planning Scheme Act 1959 (WA) and the Metropolitan Region Scheme. The Town has the delegated authority to grant approval to such an application. However, this application is immaterial to the preliminary issue.
At all times Lot 39 Marine Parade, Cottesloe, fell within the "Hotel" zone of TPS 2.
While the applications lodged by Multiplex with the Town did not expressly say the proposed redevelopment was for the purpose of a "Hotel" as defined in TPS 2 Sch 2 ‑ "Interpretations", the Town appears to have treated the proposed development as constituting a "Hotel" as defined in TPS 2.
For the purpose of determining the preliminary issue before the Tribunal, Multiplex accepts the proposed development should be characterised as falling within the use class of "Hotel" as defined in TPS 2.
Under TPS 2 Table 1 – "Zoning Table", in the Hotel zone, the use class "Hotels" is referred to as "P" in that zone. Clause 3.3 of TPS 2 indicates that the symbol "P" has the meaning that it is a "use that is permitted under this Scheme".
Even though a Hotel is a use that is permitted under TPS 2, it does not mean that land can be physically developed for that use without approval under TPS 2. This is because TPS 2 cl 7.1.1 provides that :
"In addition to a building licence the Council's approval to commence development is required for any development on or partly on any lot zoned or reserved under the Scheme except the carrying out of any works, on, in or under a street or a road by a public authority acting pursuant to the provisions of any statute.
Subject to this exception, no person shall commence or carry out any development unless Council approval has first been obtained."
TPS 2 Sch 2 says that the word "development" has the same meaning given to it in and for the purposes of the Town Planning and Development Act 1928 (WA). That Act, by s 2(1) states that :
"development' means the development or use of any land, including any demolition, erection, construction, alteration of or addition to any building or structure on the land and the carrying out on the land of any excavation or other works and, in the case of a place to which a Conservation Order made under Section 59 of the Heritage of Western Australia Act 1990 applies, also includes any act or thing that –
(a)is likely to change the character of that place or the external appearance of any building; or
(b)would constitute an irreversible alteration of the fabric of any building."
It has long been understood that, by reason of this definition, the concept of development, for planning control purposes under the Town Planning Development Act 1928 (WA) and town planning schemes in Western Australia, includes not only the physical use of land, but also the non‑physical use to which land may be put.
Consequently in University of Western Australia v City of Subiaco (1980) 52 LGRA 360 at 363 ‑ 364, Burt CJ said:
"In my opinion the definition of 'development' in the Town Planning and Development Act makes use of and it encompasses two ideas. The first is the 'use' of the land which 'comprises activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself' : see Parkes v Environment Secretary [1978] 1 WLR 1308 at 1311 per Lord Denning MR."
In Claude Neon Limited v City of Perth and Metropolitan Region Planning Authority [1983] WAR 147, Pidgeon J accepted what Burt CJ had said in that case, but noted that some minor activities on land may not constitute development under either idea. His Honour, at 149, said he considered "there is an element of degree to be considered before an activity reached the stage of its being a development". Pidgeon J concluded at 150 that:
"I consider therefore that the answer … is dependent upon a finding of fact as to the degree of change of the use or physical alteration to the land and it would include as envisaged by the Chief Justice an examination of the degree of permanence of the physical alteration. It must be looked at subjectively having regard to the location of the land concerned and the area it is in."
Accordingly, although Multiplex's proposed development, for present purposes, may be considered a "Hotel" use that is a permitted use, the physical alteration of the land proposed to enable that use to occur constitutes "development". TPS 2 cl 7.1.1 prohibits the carrying out of development of any sort without the Council's approval to commence development. On the face of it, it was that approval to commence development that Multiplex applied for in its application for planning approval to the Town dated 21 September 2004 made under TPS 2, and in its application for approval to commence development dated 16 September 2004 made under the Metropolitan Region Scheme.

The Council's power to give approval

TPS 2 cl 7.1.1, on the face of it, gives the Council a very broad discretion to approve the commencement of development. However, TPS 2, in its other parts, considerably structures this discretion. This is done in a number of ways. First, Pt I cl 1.8 "GENERAL OBLIGATIONS" of TPS 2 lays down the general rule that:
"Subject to the provisions of the Act and all Regulations made thereunder and to Part IV of this Scheme, no person shall depart or permit or suffer any departure from the requirements and provisions of the Scheme, nor shall any person use or permit the use of any land or building or undertake to permit any new work if the use, new work, reconstruction, alteration or modification, does not conform with the Scheme or would tend to delay the effective operation of the Scheme."
Clause 1.8 thereby draws attention to the regulatory nature of TPS 2 and the fact that it contains requirements concerning the use and development of land.
Part III – "ZONES OF TPS 2" then divides the district of the local government into 10 zones, the fifth of which is "Hotel". By the zoning table, TPS 2 indicates by reference to each zone what particular use classes are permitted (P), not permitted unless special approval is granted by the Council (AA), incidental to a predominant use as decided and approved by Council (IP) or not permitted (X).
Then, cl 3.4 lays down special provisions for development proposed in particular zones.
TPS 2 cl 3.4.5 makes provision for the "Hotel Zone". It says that "The intention of the Hotel Zone is to control the use of hotels within the Scheme Area and to guide the further development or redevelopment of land within the Zone".
Clause 3.4.5(a) specifies that "In its consideration of applications to commence development the Council shall have regard to" some eight matters that concern: preservation of the foreshore; the social consequences of a development; the integration of parking areas and vehicular access; traffic impact; privacy; shadowing; air flows; and "the amenity provisions and policies contained in Part V – General Provisions – of this Scheme".
Clause 3.4.5(b) then establishes a number of "Development Standards". These deal with matters of plot ratio and site coverage, car parking spaces, building up the street boundaries, set‑backs and height. Some of these are particularly relevant to this application.
Clause 3.4.5(b)(i) provides that:
"No land shall be built upon so as to exceed a plot ratio of 1.0 or a site coverage of 0.5."
Clause 3.4.5(b)(v) provides that:
"No hotel or related building shall be constructed so that it exceeds –
(a)a height of 12 metres. For the purpose of this development 'height' means the vertical measurements taken between any point adjacent to the area occupied by the building and the top most vertical point of the roof, excluding minor vertical projections such as chimneys and vent pipes;
(b)three storeys inclusive of above ground parking decks; or
(c)excepting the Eric Street frontage of lot 2, Cnr Eric Street and Marine Parade, 2 storeys adjacent to or opposite residential development."
TPS 2 Part V – "GENERAL PROVISIONS", cl 5.1 "AMENITY", which is made relevant by the last factor mentioned in cl 3.4.5(a), deals with matters of building height, measurement of building height, general privacy, height and retaining walls and appearance of buildings.
Clause 5.1.1(a) "General Policy" provides that:
"Council's general policy for development within the district favours low rise development of no more than 2 storeys to maintain privacy, views and general amenity notwithstanding that council may consider the circumstances and merits of each case in terms of the amenity and development control provisions of this Scheme."
That sub‑clause goes on to explain how the height control policy should be exercised.
Clause 5.1.1(b) "Specific Policy" provides a specific building height policy in respect of: (i) the Foreshore Centre Zone, (ii) the Residential Zone and (iii) the Hotel Zone. In respect of the Hotel Zone it provides: "refer to sub‑clause 3.4.5(b)(v)", which is the sub‑clause noted earlier that provides that no hotel or related building shall be constructed so that it exceeds the height of 12 metres, three storeys or, except in one case not here relevant, two storeys adjacent to or opposite residential development.
TPS 2 cl 5.1.2 General goes on to provide that "notwithstanding these specific provisions of this Scheme in considering a proposed development, Council shall have regard to and may impose conditions relating to" some 12 different factors concerning height or location of buildings, preservation of trees and places of architectural or historic interest, building materials, building bulk, building set‑backs, location and orientation of buildings to achieve higher standards of day lighting, sunshine or privacy, fresh air, air‑flows, privacy, overshadowing, general quiet of the locality and shadowing in non‑residential development proposals.
Additionally, the introductory words to TPS cl 5.3(a) state that:
"For the purposes of these General Provisions, business and entertainment includes uses of a commercial nature generally as well as motels and serviced units."
Clause 5.3(a) then provides that:
"Where the Development Guide Map indicates the minimum setback from a street boundary to be Nil, the Council may permit walls of up to 6 metres in height to be constructed up to site boundaries … Walls higher than six metres shall be setback from site boundaries a minimum of 2 metres for every 3 metres of height such that a wall or portion of a wall which is 9 metres or higher shall have a minimum setback of 6 metres from any site boundary."
The expression "business" is not defined in Sch 2 of TPS 2, but the word "Entertainment" is defined. It means "the public performance by artists present and performing within part of a Hotel subject to an Entertainment Permit granted under the provisions of the Liquor Act, 1970 (as amended)". An argument is open that, in appropriate circumstances, a hotel may be a "business" use, and is also capable of being "entertainment" as defined by TPS 2.
In the ordinary case, these various development standards, policies and provisions structure the broad discretion the Council has under cl 7.1.1 to approve the commencement of development. In some instances, the provisions of TPS 2 actually restrict the discretion of the Council. An example of this is the provision in cl 3.4.5(b)(i) that no land in the "Hotel Zone" shall be built upon so as to exceed a plot ratio of 1.0 or a site coverage of 0.5; and the provision in cl 3.4.5(b)(v) that no hotel or related building shall be constructed so that it exceeds a height of 12 metres, three storeys or except in one case two storeys adjacent to or opposite residential development.

In this particular application, Multiplex accepts that the height of the proposed development varies at different points on the site and reaches a maximum of approximately 20 metres above the average ground level of the land. Multiplex accepts that if the Tribunal finds that the development in its whole comprises a Hotel or related building it follows that, at points, its height would exceed 12 metres or three storeys.
Similarly, Multiplex accepts that the boundary wall along the full length of the eastern boundary of the land varies in height from approximately 8.5 metres to 12.5 metres.
Notwithstanding a submission made on behalf of Multiplex that the terms of cl 3.4.5(a), which requires the Council to have regard to a number of factors in considering an application for approval to commence development, provide the Council with a general discretion to relax the development standards established by cl 3.4.5(b), there can be little doubt that the development standards are intended to provide a basic rule. Clause 3.4.5(a) does not have the consequence that the development standard established by cl 3.4.5(b) can be rendered irrelevant in the general discretion of the Council. If there is a power in the Council to relax those development standards, it will need to be found elsewhere in TPS 2.
It may also be observed that, while cl 5.1.2 - "General" directs the Council to have regard to numerous matters including the height or location of buildings, building bulk and building set backs, this requirement, prefaced by the words "notwithstanding the specific provisions of this Scheme", does not mean that the Council can rely on this clause as the source of a general discretion to relax specific provisions of TPS 2, such as the development standards established by cl 3.4.5(b).
The purpose of cl 5.1.2 is to ensure that, when considering an application, the Council has regard to all relevant factors identified in that clause, even though TPS 2 draws attention to specific factors in other provisions.
Consequently, it is not open to conclude that TPS 2 cl 5.1.2 is the source of a power in the Council to relax relevant development standards established by TPS 2.
Leaving aside for the moment TPS 2 Pt VI that concerns places, buildings and objects listed in Sch 1 of TPS 2, there is no express provision in TPS 2 that permits the Council, when considering an application for approval to commence development under TPS 2 Pt VII, to relax the development standards in cl 3.4.5(b)(i) and (v) as they relate respectively to development in the "Hotel Zone" and hotels and related buildings. The language employed in TPS 2 in those two particular development standard provisions is explicit, lacks ambiguity and lays down a basic rule concerning, respectively, plot ratio and site coverage, and the height of a hotel or related building.
This form of words may be contrasted with the less explicit language employed in TPS 2 in respect of development in some of the other zones. For example, cl 13.4.4 (d)(i) - "Foreshore Centre Zone" : "Residential Use", provides that the Council may permit a building exceeding the height controls in Pt V of TPS 2 "so long as the building conforms with the height of adjoining buildings", and that the Council may also "Permit departures from the side and rear boundary set back requirements". Similarly, cl 5.1.1(a)(i) in dealing with amenity considerations in the "Foreshore Centre Zone", provides a "Two storeys height limit except in exceptional circumstances where the amenity of the area would not be adversely affected, the Council may permit buildings up to three storeys in height". The language employed in these provisions permits the Council to form a subjective view, albeit within limits, concerning the appropriate height of a building in those particular zones. In that sense, it may be said to give the Council something of a "discretion" about height.
It is clear enough from the reasons given by the Council of the Town of Cottesloe in refusing Multiplex's application on 22 December 2004, that many of the factors referred to in these various provisions of TPS 2 concerning development standards and policies in the "Hotel Zone" were considered by the Council. Matters of height, views to and from Cottesloe beach, overshadowing, views from surrounding properties, building height and bulk, parking standards, plot ratio, site coverage, amenity of the neighbouring area and social behaviour are all reflected in those reasons for refusal.
The Council's reasons for refusal also express concern for the preservation of the 1937 façade and the affect of the proposed development on the Norfolk Pines in John Street. The Council may be assumed to have regarded these two factors by reason of the listing of the façade and the Norfolk Pines in TPS 2, Sch 1. This suggests, at least on the face of it, that in making its decision to refuse Multiplex's application, the Council recognised the possibility that the proposed development might affect those two listed places.

TPS 2 Part VI

In this regard, it is now relevant to note the requirements and effect of the provisions of TPS 2 Pt VI – "Conservation And Preservation Of Places Of Natural Beauty And Historic Buildings And Objects Of Historic Or Scientific Interest".
Clause 6.1 enables such places, buildings and objects to be listed in Sch 1. Clause 6.1.1 provides that:
"The Council considers that the places of natural beauty, and historic buildings, and objects of historic or scientific interest listed in Schedule 1 should be conserved and preserved."
To reinforce this considered statement, cl 6.2.1 provides that:
"No person shall without the consent in writing of the Council commence or carry out or permit or suffer the commencement or carrying out of any development on in or in relation to any First Schedule place, building or object and without in any way limiting the generality of the foregoing shall not:
(a) clear, excavate, or fill any land;
(b) fell, remove, kill or irrevocably damage any tree;
(c) erect any fence;
(d) commence or carry out any renovation, modification, refitting, decoration or demolition of any building;
(e) alter or remove any building or object or any part thereof."
Clause 6.2.2 further reinforces the importance of obtaining the Council's consent in writing in respect of development of a listed place, building or object in that it provides that :
"The provisions of this sub‑clause shall not affect any obligation imposed by other provisions of this Text or by the Metropolitan Region Scheme to apply for and obtain the approval of the Council or of the State Planning Commission prior to the commencement or carrying out of any development, and the written consent of the Council under this sub clause is required in addition to any such approval to commence or carry out development."
On the face of it, cl 6.2.1 and cl 6.2.2 evince an intention on the part of the makers of TPS 2 that places, buildings and objects listed in Sch 1 should not be altered or affected in any way without the express consent of the Council. The fact that the written consent of the Council is required "in addition" to the approval of the Council to commence development, finally suggests that this is so. The broad policy underlying this scheme of regulation would seem to be that the Council should turn its mind to the question of the conservation and preservation of the listed things in a conscious way in every case where development or other work is proposed in respect of a Sch 1 place, building or object.
Clause 6.2.3 provides that:
"If the Council decides to give its written consent to the commencement or carrying out of any development or other work referred to in paragraph 6.2.1, the Council may give that written consent notwithstanding that the development or work involved does not comply with the Residential Planning Codes or with any requirement or standard specified in or arising out of this Text."
Clause 6.2.4 provides that:
"The Council when considering an application for its consent in writing pursuant to provisions of paragraph 6.2.1 may –
(a)give its consent in writing with or without conditions and limit the time for which the consent remains valid prior to completion or substantial commencement of the development or other work; or
(b)refuse to give its consent in writing."
Nothing in TPS 2 Pt VI prescribes any particular application form to be used when applying for written consent under this Part, nor any particular way in which an application for the consent in writing should be applied for. However, TPS 2 Appendix III contains an "APPLICATION FOR APPROVAL TO COMMENCE DEVELOPMENT" that is particularly apposite for an application for approval under cl 7.1.1. This was the form of application used by Multiplex.
Nothing in TPS 2 Pt VI or elsewhere in TPS 2 suggests that a person cannot apply to the Council for its approval to commence development under cl 7.1.1 and for its written consent pursuant to cl 6.2.1 in the same form; or that the Council cannot give its approval to commence development and its written consent pursuant to cl 6.2.1 in the same instrument.
Similarly, there does not appear to be any reason why a person may not apply for the written consent of the Council to development or work referred to in cl 6.2.1, pursuant to cl 6.2.1, without applying for the Council's approval to commence development pursuant to cl 7.1.1.
Whether an applicant chooses to seek one or the other form of consent or approval, or both at the same time, is for a person to decide in the circumstances of a given case.
What is clear though, is that if a person applies only for the Council's consent in writing pursuant to cl 6.2.1, the granting of that consent in writing by the Council pursuant to cl 6.2.1 will not of itself constitute an approval to commence development pursuant to cl 7.1.1, and that, on its own, written consent under cl 6.2.1 will not enable a person to commence development.
However, in my view, if a person makes it clear to the Council that they are applying in respect of the same proposed development for both a consent in writing pursuant to cl 6.2.1 and for approval to commence development pursuant to cl 7.1.1, or the Council treats an application as one inviting both its written consent under cl 6.2.1 and its approval under cl 7.1.1, it is within the authority of the Council to grant the relevant written consent pursuant to cl 6.2.1 and the approval to commence development pursuant to cl 7.1.1 in the one instrument of approval.
In some cases, a person may well apply to the Council for an approval under cl 7.1.1 in circumstances where it is plain enough that the proposed development is in respect of a place, building or object listed in Sch 1 so that the applicant, in all the circumstances or by inference, is seeking the consent in writing of the Council pursuant to cl 6.2.1, as well as its approval to commence development under cl 7.1.1.
In this particular case, Multiplex simply used the form of application for approval contained in Appendix III of TPS 2. As noted, no other form of application is contained in TPS 2. There is no particular form of application provided to seek the consent in writing of the Council pursuant to cl 6.2.1.
There seems to have been no doubt in either the guiding minds of Multiplex or the Council of the Town of Cottesloe that the application to commence development lodged with the Town might affect two of the places, buildings or objects listed in Sch 1 of TPS 2, namely, the 1937 façade of the existing building on Lot 39 Marine Parade, and the Norfolk Island Pines. This is because the Council's reasons 9 and 11 for refusal specifically refer to:
(1) the "preservation of the façade" and "the manifestly excessive concession sought by the applicant" in respect of the preservation of the façade, and;
(2) the adverse affect on the Norfolk Pines in John Street.
In other words, it seems plain enough that the Council in dealing with Multiplex's application for approval to commence development fully appreciated that its express consent in writing to the proposed development pursuant to cl 6.2.1 was required in addition to its approval to commence development pursuant to cl 7.1.1, if the proposed development were to be implemented.
The question that falls to be decided in relation to the preliminary issue in essence, is whether, if the Council had been minded to adopt a different position on the merits of Multiplex's application, the Council could have granted its written consent pursuant by cl 6.2.1, even though in material respects the proposed development did not conform with the plot ratio and site coverage development standards established by cl 3.4.5(b)(i) and the height limits specified in cl 3.4.5(b)(v)(a) or (b) of TPS 2. If it could have done so – and did so ‑ the further question arises, whether the Council, having granted its written consent pursuant to cl 6.2.1 "notwithstanding that the development or work involved does not comply with … any requirement or standard specified in or arising out of the Text", would still be prevented from granting an approval to commence development under cl 7.1.1, because the development did not comply with the same requirements or standards of TPS 2.

The Town's contentions

Senior counsel for the Town of Cottesloe emphasised the distinction between a written consent for the purposes of P VI of TPS 2 and approval to commence development pursuant to P VII. Counsel contended that cl 6.2.3, in providing that a written consent may be given notwithstanding that the development or other work does not comply with any requirement or standard specified in or arising out of TPS 2, merely confirms that such matters (namely, development standards and requirements spelt out elsewhere in TPS 2) are irrelevant to the grant of a written consent, as the only matters to be averted to by the Council for that purpose is conservation and preservation of first schedule places.
Senior counsel for the Town contended that circumstances could arise where a person would indeed apply separately for a written consent pursuant to cl 6.2.1 and not, at least initially, apply for approval to commence development under cl 7.1.1. Counsel contended, for example, that a person proposing development on or in relation to a first schedule place could seek the Council's written consent to the proposed development under Pt VI without providing the Council with all of the material required by cl 7.1.2 to be lodged with an application for approval to commence development pursuant to cl 7.1.1. The Council could, without regard to whether the proposal complied with TPS 2 provisions as to height limits, plot ratios, or set backs, conclude that the proposed development (which may, for example, propose in broad terms, demolition of an existing building, but retention of the façade) meets the objectives of Pt VI, and give its written consent to the proposal, subject to specified conditions. The developer might then apply for approval to commence development, submitting, at that time, all of the detail required by cl 7.1.2. That application, however, might be refused, because the height of the proposed development exceeds the heights limits. The developer could not then claim, it was contended, that the prior written consent prevented Council from rejecting the later application to commence development, because in considering the application for consent under Pt VI the Council does not need to consider the matters relevant to an application for approval to commence development under Pt VII. The two parts provide two entirely separate processes.
Senior counsel for the Town supposed by way of further example, an application made for approval to redevelop to a height of three storeys a first schedule place within the "Foreshore Centre Zone", and at the same time an application for written consent made under Pt VI. Counsel submitted the Council might refuse to grant approval to commence development under Pt VII because it exceeded the two storeys "limit". However the developer might wish to appeal against the council's refusal to exercise the "discretion" expressly conferred by cl 5.1.1(b)(i) to go to three storeys. However, the developer could still request, and the Council could grant, written consent under Pt VI, "notwithstanding" that the proposed development did not comply with the maximum height specified by cl 5.1.1(b), as the Council (or its delegate) might be satisfied that the proposed development met the conservation and preservation objects of Pt VI. If so, the Council could not refuse Pt VI consent because the development did not comply with the height restriction, and the consent would not be invalid for that reason.
Senior counsel for the Town considered that any other view of the relationship between cl 6.2.3 and cl 7.1.1 was flawed by assuming that the word "notwithstanding" in cl 6.2.3 connotes a "discretion". Counsel contended that it does not, any more than would a direction to a court to allow members of the public access "notwithstanding that they are not a party to the action", connote a "discretion" to exclude non‑parties.
Consequently, senior counsel for the Town of Cottesloe maintained that TPS 2 by Pt VI in relation to scheduled places, and Pt VII in relation to the requirement for approval to commence development, exhibits two quite separate regulatory processes, each of which has no direct relationship with the other.

Multiplex's contentions

By contrast, senior counsel for Multiplex contended that a written consent pursuant to cl 6.2.1 was, in effect, one and the same thing as an approval to commence development pursuant to cl 7.1.1, or at least that the grant of a written consent conveyed the grant of approval to commence development. Alternatively, and an approach considered by counsel to be more conceptually satisfying, counsel submitted the grant of a written consent pursuant to cl 6.2.1 "notwithstanding" that the development does not comply with any requirement or standard specified in or arising out of the text of TPS 2, may be said to have the effect of disapplying any requirement or standard to the extent it might otherwise be considered relevant when considering the grant of approval to commence development pursuant to cl 7.1.1.
Senior counsel for Multiplex acknowledged that, critical to the resolution of the preliminary issue, is the proper construction of cl 6.2.3 and, in particular, the power conferred on the Council to give written consent "notwithstanding that the development or work involved does not comply with … any requirement or standard specified in or arising out of this Text". Counsel contended that, in its natural and ordinary meaning, cl 6.2.3 empowers the Council to give its written consent to the commencement or carrying out of any development or other work notwithstanding that the development or work does not comply with, amongst other things, the provisions of Pt III or indeed any other provision of TPS 2. Counsel accepted however that the provisions of Pt III and Pt V of TPS 2 have no "freestanding" operation or effect on their own. They are only brought to bear when the Council determines whether or not to grant approval for a development pursuant to Pt VII of TPS 2.
Senior counsel accepted that the approval of the Council is required for any development pursuant to cl 7.1.1 of TPS 2. However, counsel for Multiplex contended that it is impossible to construe cl 6.2.3 in the way the Town contends, that is, as limiting the power of the Council to grant a consent under cl 6.2.1, as having no general application to the Council's approval power under cl 7.1.1.
Firstly, senior counsel contended that such a meaning is entirely contrary to the nature and ordinary meaning of the language used which refers to "any requirement or standard specified in or arising out of this Text". Those words are not apt to confine the discretion to the single constraint imposed by the requirement that a written consent be maintained under cl 6.2.1 and which could not, on any reasonable view, be considered to be a "standard".

The second reason advanced on behalf of Multiplex as to why the respondent's contention must be rejected, is that Pt VI of TPS 2 does not impose any "requirement or standard" itself, other than the requirement that written consent be obtained in respect of any work or development "on in or in relation to any First Schedule place". Counsel contended that if, as the respondent appeared to contend, cl 6.2.3 merely means that the Council may give written consent, limited in effect to a consent under cl 6.2.1 only, to a work or development which has the requisite connection with the first schedule place, the "dispensing power" conferred upon the Council is of no affect because no consent could be given under Pt VII. Such a construction, it was contended, would render cl 6.2.3 entirely otiose and redundant, contrary to all accepted principles of statutory construction.
Senior counsel for Multiplex contended that the third reason for construing the clause as the applicant contends is that the consent or approval of the Cuncil is affected by a single act or resolution endorsing the proposed development. There is no need or purpose served in construing TPS 2 as requiring separate and distinct acts of endorsement by the Council. Plus the word "consent" used in cl 6.2.3 is apt to mean and include the approval referred to in cl 7.1.1.
The fourth reason advanced by senior counsel for Multiplex for rejecting the respondent's contention is that it is inconsistent with the evident structure and purpose of TPS 2, including in particular the evident purpose of Pt VI. Counsel noted that cl 6.1 records that the purpose of the part is to protect and preserve first schedule places. In that context, and in the context of TPS 2 as a whole and any other provisions to which reference was made, it is entirely sensible, and consistent with the evident purpose of the text, to give to cl 6.2.3 the meaning which is consistent with its natural and ordinary meaning – that is, empowering the Council to dispense with any other requirement or standard of TPS 2 in furtherance of the objective of Pt VI, namely, the conservation and preservation of first schedule places. That purpose, it was contended, can only be achieved by giving the cl 6.2.3 power the meaning suggested by the words used – that is, power to dispense with any other requirements or standard of the Text when giving consent to carry out development or work, under both cl 6.2.1 and cl 7.1.1.

The Town's final contention in reply

Senior counsel for the Town in responding to these submissions submitted that, in relation to the last contention, however sensible the process suggested might appear as a regulatory procedure, the words of TPS 2 in cl 6.2.3 provide otherwise and it would be necessary, in order to achieve that outcome, for words that currently do not appear in cl 6.2.3 effectively to be supplied by the Tribunal as an act of statutory interpretation. In other words, senior counsel for the Town submitted that nothing in cl 6.2.3 empowers the Council to dispense with compliance with any relevant requirement or development standard specified elsewhere in TPS 2 when dealing with an application for approval to commence development under cl 7.1.1 of TPS 2.

Tribunal's consideration of clause 6.2.3

Having considered the detailed written and oral submissions of senior counsel for the parties, I consider that, in an appropriate case, the Council may indeed grant an approval to commence development under cl 7.1.1 and a written consent pursuant to cl 6.2.1 of TPS 2 that varies or has the legal effect of verifying a relevant provision of the Residential Planning Codes or any requirement or standard specified in or arising out of the text of TPS 2 that would otherwise apply in respect of the proposed development. The reason I consider this to be so reflects some, though not all, of the contentions advanced on behalf of Multiplex.
By TPS 2 cl 7.1.1, the commencement of all development within the TPS 2 scheme area must be the subject of Council's approval to commence development.
It is possible that some activities or works on or in relation to land may not fall within the concept of "development" as defined by TPS and the Town Planning and Development Act 1928 (WA). For example, the repainting of an interior room of a building (something that might be considered "decoration" in terms of TPS 2 cl 6.2.1(d)), or the removal of a light fitting on an internal wall of a building (as envisaged amongst other things by TPS 2 cl 6.2.1(e)) might well not fit within the well‑understood concept of "development", explained earlier.
It is also well understood that the requirement of a local government's town planning scheme, such as TPS 2, that a person must obtain a Council's approval to commence development, may be but one of a number of statutory approvals required to permit a particular form of proposed development of land to be implemented. For example, in the metropolitan region of Perth, the Metropolitan Regional Scheme made under the Metropolitan Region Town Planning Scheme Act 1959 (WA), adds the requirement for approval to commence development under the Metropolitan Regional Scheme and a building licence will also usually be required.
In this particular case, TPS 2 also adds a written consent requirement where any development is proposed "on in or in relation to any First Schedule place, building or object".
Matters that may be dealt with by the general provisions of a town planning scheme, pursuant to Sch 1 of Town Planning and Development Act 1928 (WA), include the demolition or alteration of buildings (cl 6(c)), the conservation of the natural beauty of an area (item 11), preservation of trees (cl 11A) and the preservation of places and objects of cultural heritage significance and other scientific interest (cl 12). Pt VI of TPS 2 (or at last portionis of the part) appears substantially to owe itself to the ability of a town planning scheme to be made in respect of such matters.
As I have observed earlier, that by the provisions set out in Pt VI of TPS 2, the maker of TPS 2 must be taken to have intended that the Council should expressly consider and expressly grant its consent in writing to any development, as defined in the Act, and any other activities not so included in that concept but enumerated in cl 6.2.1(a) ‑ (e), if any, that should be undertaken on, in or in relation to an listed of place, building or object. That much follows from the express statement in cl 6.2.2 that the written consent of the Council under cl 6.2 is required "in addition" to any approval to commence or carry out development.
It is in this context that one comes to TPS 2 cl 6.2.3. It enables the Council, if it decides to give its written consent, to give that written consent "notwithstanding that the development or work involved does not comply with the Residential Planning Codes or with any requirement or standard specified in or arising out of this Text."
In my view, cl 6.2.3 in its express terms recognises that the Pt VI written consent power will be exercised having regard to all relevant requirements of TPS 2, including those in parts of TPS 2 other than Pt VI, that would ordinarily apply to a development of the type proposed.
Because the Council is empowered to give its written consent to a development on, in or in relation to a listed place, building or object "notwithstanding" provisions of TPS 2 that lay down basic development rules, it may be suggested that the Council would not ordinarily consider granting its written consent under Pt VI if to do so would result in non‑compliance with the Residential Planning Codes or with any requirement or standard specified in or arising out of the TPS 2 text. This makes obvious sense as a matter of good public administration and town planning.
It follows, in my view, that because the Council is specifically empowered by cl 6.2.3 to grant its consent notwithstanding that a proposed development does not comply with a relevant Code provision or requirement or standard specified in or arising out of the text, the grant of written consent under cl 6.2.1, in circumstances where Council has been invited to consider at the same time an application for approval to commence that same proposed development under cl 7.1.1, either itself varies or has the legal effect of varying a relevant Code provision, or requirement or standard specified in the text that would otherwise apply in respect of the proposed development.
The contention made on behalf of the Town that, on the proper construction of TPS 2, there are two quite separate and distinct regulatory systems relating, on the one hand, to the approval of the commencement of development and, on the other hand, to the commencement of a development that relates to a Sch 1 listed place, building or object, make little sense in the context of this Scheme and does not serve the evident purpose of Pt VI of TPS 2 derived from a consideration of TPS 2 as a whole.
While the contentions made on behalf of the Town appeal to the apparent grammatical construction of cl 6.2.3 of TPS 2, it is to the purpose of Pt VI, in which cl 6.2.3 appears that one should have regard in endeavouring to give proper meaning to the words (on the uses) employed in cl 6.2.3. As McHugh JA said in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421 - 424
"Ascertaining the ordinary grammatical meaning of a legislative provision is only the first step in the process of statutory construction. If the consequences of the literal or grammatical construction raise a real doubt as to Parliament's intent, the court is justified in refusing to give the words their literal or grammatical construction: [citations omitted]. ...
However, it is not only when words have been inadvertently used that a court is empowered to give a legislative provision a strained construction. A strained construction may be justified because words have been omitted: Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [[1971] AC850] (at 880 - 882); or because by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved: Jones v Wrotham Park Settled Estates [1980] AC 74 at 105, … . As many of these cases show, the purpose of the legislation may require a meaning to be placed on the words of a particular provision which, standing alone, they cannot reasonably bear. …
A purposive and not a literal approach is the method of statutory construction which now prevails; cf Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272 273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. …
Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it in so far as, by addition or omission or clarification, the provision is capable of achieving the purpose or object."
While there is no doubt that the written consent power given to the Council in Pt VI of TPS 2 is to be exercised having regard to the objective of the conservation and preservation of the place, building or object listed in Sch 1, the words employed by cl 6.2.3 confirm that the written consent power should be exercised taking into account all relevant provisions of TPS 2 and the Residential Planning Codes. That this is so, supports the view that the power of the Council to approve the commencement of development under Pt VII and the power of the Council to give a written consent under Pt VI, are intended by the maker of TPS 2 to be exercised in harmony. It is for the Council to decide in its discretion, having regard to all relevant factors, whether a written consent for the commencement or carrying out of any development or other work should be granted under Pt VI. It follows, in my view, that where the Council considers, at the same time and in respect of the same proposed development, an application for approval to commence development under Pt VII and an application for written consent under Pt VI, and the Council decides to grant both applications, the written consent given under Pt VI either varies or has the legal effect of varying a relevant provision of the Codes or any requirement or standard specified in the text of TPS 2, that would otherwise apply in respect of the proposed development.
This understanding of the way Pt VI of TPS 2 fits into the broader scheme of development control in TPS 2 and makes good policy sense so far as town planning and heritage control is concerned. For example, if on land stood a place that was listed in Sch 1 by reason of its historic value as a residence, and that land fell within a TPS 2 zone that encouraged forms of non‑residential development that would in all likelihood be at odds with the conservation or preservation of that place in its undeveloped form, it would appear entirely inconsistent with the scheme of regulation contained in TPS 2 that a person could apply to the Council for approval to redevelop that place in a manner which, for argument's sake, retained the historic significance of the place in substance, but in other respects redeveloped the place in a manner consistent with the intent of that zone as expressed in TPS 2. To ensure the proper conservation or preservation of the place of historic significance and to recognise the competing development policies expressed in TPS 2 for land in that zone, the applicant might propose and the Council might expressly approve and consent to the redevelopment, notwithstanding that the proposed redevelopment of a portion of the place involved non‑compliance with plot ratio, site coverage and height restrictions imposed by specific provisions of TPS 2. In such circumstances, the decision of the Council to permit the redevelopment of that listed place notwithstanding such non‑compliance would necessarily mean that the Council consented to the removal of any otherwise limiting or restricting requirement or standard specified in the TPS 2 Text.
If the position were to be otherwise, then, in my view, the grant of the written consent by the Council pursuant to Pt VI of TPS 2 "notwithstanding that the development or work involved does not comply with the Residential Planning Codes or with any requirement or standard specified in or arising out of this Text" would, in the example just given, be almost meaningless.
If the Town's contentions were accepted, an applicant who proposed development of a listed place in the example given, would not only be required to obtain a separate written consent under Pt VI and an approval to commence development under Pt VII of TPS 2, but might never be able to obtain an approval to commence development under Pt VII where the proposed development did not comply with a specific requirement or development standard specified in TPS 2, notwithstanding that the Council had decided, after careful consideration of the Pt VI conservation and preservation objectives of TPS 2, to grant its written consent to the proposed development.
On any view, this outcome makes little sense and renders virtually pointless the express power given to the Council in cl 6.2.3 to grant its written consent in respect of the development of a listed place "notwithstanding" that the proposed development does not comply with a requirement or a standard specified in TPS 2.

Conclusion

For these reasons I am satisfied, that in an appropriate case, where a proposed development involves development "on in or in relation to any First Schedule place, building or object" the Council of the Town of Cottesloe is empowered by cl 6.2.3 to grant its written consent to the proposed development, notwithstanding that the development or work involved does not comply with an otherwise relevant requirement or standard specified in or arising out of TPS 2 text.
I am also quite satisfied that, where written consent is given under Pt VI of TPS 2, in circumstances were the Council has also been asked by the applicant to grant approval to commence development under cl 7.1.1 of TPS 2 in respect of the same proposed development and grants that approval at the same time as it gives its written consent under cl 6.2.3, the grant of the written consent under Pt VI either varies or has the legal effect of varying any relevant requirement or standard in or arising out of the Test of TPS 2 that would otherwise apply in respect of the proposed development.
Just because a Council may have the power under TPS 2, in this way, to approve the redevelopment of a first schedule listed place, building or object, does not mean, of course, that the Council is bound to exercise that power in favour of an applicant. Whether or not the written consent power given to the Council in Pt VI should be exercised in favour of an applicant in any given case will depend on all the circumstances of the case and having regard to the terms of TPS 2 cl 6.1.1 whereby the Council "considers that the places of natural beauty and historic buildings and objects of historic or scientific interest listed in Schedule 1 should be conserved and preserved".
Having ruled on the preliminary issue in the way I have, I consider Multiplex's application to the Town for approval to commence development was one that invited the Council to exercise its Pt VII and Pt VI powers to approve and consent to the proposed development. It was, therefore, an application in respect of which the Council could have, if it had thought appropriate, varied or effectively varied any relevant requirement or development standard of TPS 2 that applied to the proposed development. Consequently, Multiplex is entitled to seek review in the Tribunal of the Council's decision to refuse its application.
On review in the Tribunal, the Tribunal has the same powers as the Council had under TPS 2 in considering and dealing with the application.
Whether or not Multiplex should succeed in its application for review in the Tribunal depends on the planning, development and heritage merits of the proposed development, which must be considered in the context of TPS 2.
The application for review should now be programmed for a final hearing of the merits of the application.
I will now hear from the parties as to what further directions need to be made before Multiplex's application for review is listed for final hearing and determination by the Tribunal.

I certify that this and the preceding [114] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE M L BARKER, PRESIDENT

Name	Location	Description
26.	Norfolk Island Pines	Forrest Street from Marine Parade to Marmion Street; John Street; Broome Street from Forrest Street to Napier Street and Reserve 3235 to Grant Street; Cottesloe main beach	Avenues and stands of tall, mature, Norfolk Island Pines, some planted circa 1905.
27.	Façade, Cottesloe Beach Hotel	No 104, Lot 39 Marine Parade, Cottesloe	Two storey rendered façade constructed circa 1937.