Optus Mobile Pty Ltd v City of Swan
[2017] WASC 251
•28 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: OPTUS MOBILE PTY LTD -v- CITY OF SWAN [2017] WASC 251
CORAM: BANKS-SMITH J
HEARD: 13 MARCH 2017
DELIVERED : 28 AUGUST 2017
FILE NO/S: GDA 11 of 2016
BETWEEN: OPTUS MOBILE PTY LTD
Applicant
AND
CITY OF SWAN
Defendant
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MS L EDDY
File No :DR 321 of 2015
Catchwords:
Planning - Local Planning Scheme - Use of land - Mobile phone base station - Where Telecommunications Infrastructure - Whether ancillary service to Tourism and Recreation Resort
Appeal from State Administrative Tribunal - Whether 'comprising' inclusive or exclusive - Ordinary meaning of words in scheme - Construction principles applicable
Legislation:
Planning and Development Act 2005 (WA), s 87(4), s 252
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr P G McGowan
Defendant: Mr C A Slarke
Solicitors:
Applicant: Clayton Utz
Defendant: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Asahi Kasei Kogyo Kabushiki Kaisha v WR Grace & Co [1991] FCA 969; (1991) 22 IPR 491
Australian Gas Light Co v Valuer‑General (1940) SR (NSW) 126
Brutus v Cozens [1973] AC 854
Chain Bar Mill Co Ltd v Wild Ltd (1939) 56 RPC 446
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Chiefari v Brisbane City Council [2005] QPELR 500; [2005] QPEC 9
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466
Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Duffy v Da Rin [2014] NSWCA 270; (2014) 87 NSWLR 495
Falconer v Pedersen [1974] VR 185
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd [2004] FCA 323; (2004) 61 IPR 442
General Clutch Corporation v Sbriggs Pty Ltd [1997] FCA 499; (1997) 38 IPR 359
GM Architects Pty Ltd v Strathfield Council [2016] NSWLEC 1216
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Industry Research & Development Board v Bridgestone Australia Ltd [2001] FCA 954; (2001) 109 FCR 564
Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9; (1980) 144 CLR 253
Neil v Legal Profession Complaints [No 2] [2012] WASCA 150
New South Wales Associated Blue‑Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509
Optus Mobile Pty Ltd and City of Swan [2016] WASAT 72
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Primary Health Care Ltd v Commissioner of Taxation [2010] FCA 419; (2010) 186 FCR 301
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 21; (1998) 194 CLR 355
Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132
Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276
Van der Feltz v City of Stirling [2009] WASC 142
Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change & Water [2012] NSWCCA 210; (2012) 82 NSWLR 12
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259
BANKS-SMITH J:
Introduction
The appellant (Optus) applied for development approval for a mobile phone base station. The area of land to be covered by the proposed development is 42m2 on Lot 1003, Verdelho Drive, The Vines. Lot 1003 is the site of the Vines Resort and Country Club.
Lot 1003 is subject to the City of Swan Local Planning Scheme 17 (LPS 17) and is zoned Special Use Zone Number 3 (SUZ3).
The proposed infrastructure is intended to achieve improved mobile telephone coverage over the whole of the SUZ3 zone, including over a thousand residential lots, and to a limited degree, beyond that zone.
The respondent (the City) refused the application on the grounds the proposed development involved the use of the site as 'Telecommunications Infrastructure'. That use is defined in LPS 17 and is not permitted within the scheme area except in certain zones where the City may exercise its discretion to grant approval. According to the City, it is not permitted at all in SUZ3.
Optus applied to the State Administrative Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PDA) for review of the City's decision.
The Tribunal ordered the determination of the following preliminary issues:
(a)whether the land use classification for the proposed development is Tourism & Recreation Resort or Telecommunications Infrastructure; and
(b)if the land use is properly classified as Telecommunications Infrastructure, whether the proposed land use is an incidental use under cl 4.3.3 of the respondent's LPS 17.
The use 'Tourism & Recreation Resort' is described in SUZ3.
On those issues, the Tribunal found that the proposed development was properly characterised as Telecommunications Infrastructure. It did not fall within the scope of Tourism & Recreation Resort and was not incidental to such use.[1]
[1] Optus Mobile Pty Ltd and City of Swan [2016] WASAT 72 [37], [48] (Reasons).
Accordingly the Tribunal dismissed the application for review and affirmed the City's decision.
Optus seeks leave to appeal that decision to this court under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The application for leave and the appeal were heard together.
Facts
The hearing before the Tribunal proceeded on the basis of a statement of agreed facts. The following facts are taken from that statement, as cited by the Tribunal:[2]
[2] Reasons [6] ‑ [10].
The mobile phone base station, the subject of the development proposal, includes the following physical components:
a)a 40m tall monopole;
b)six panel antennas closely mounted on the monopole's circular headframe;
c)a radio communications dish mounted on the monopole at 35m above the ground;
d)an outdoor equipment cabinet located at the base of the monopole;
e)underground cabling between the cabinet and antenna devices;
f)installation of associated ancillary equipment, including 39 radio remote units; and
g)a 2.4m high chain link fence.
The area to be covered by the proposed development is 42m2. It is proposed to be located within the site at a point that is 1,670m from the northern boundary, 520m from the western boundary, 725m from the southern boundary and 780m from the eastern boundary of the site.
The proposed development is intended to provide improved mobile coverage and internet speed and a better customer experience of mobile phone calls, text messages and internet access through mobile data service generally in the localities of the Vines and Ellenbrook.
Currently on the site is the Vines Resort and Country Club (Resort) which includes, amongst other things:
a)accommodation facilities;
b)a conference facility;
c)two golf courses;
d)a day spa; and
e)dining facilities including a restaurant, cafés and bars.
The site is one of the lots within the SUZ3. That zone also includes approximately 1,320 residential lots. These lots, together with the Resort are within the locality described as 'The Vines'. The area of coverage that would be provided by the proposed development includes all of SUZ3 and some parts of the neighbouring Special Use Zone 4 (SUZ4).
The locality of the Vines is to be distinguished from the Vines Resort and Country Club. The latter is situated within the locality of the Vines.
The planning framework
Under pt 4 of LPS 17, the scheme area is divided into zones. Clause 4.3 sets out a zoning table, which indicates the permissibility of uses in the scheme area in the various zones.
Clause 4.7 provides for special use zones in addition to the zones referred to in the zoning table. The special use zones are set out in sch 4 of the scheme.
Clause 4.7.2 provides that:
A person must not use any land, or any structure or buildings on land, in a special use zone except for the purposes set out against that land in Schedule 4 and subject to compliance with any conditions set in Schedule 4 with respect to that land.
Clause 4.2.25 provides that the objectives of special use zones are to:
(a)provide for specific uses or combination of uses in circumstances where the uses have particular locational and developmental requirements for which a generic zoning is unsuitable;
(b)facilitate the development of strategically important facilities that cannot be satisfactorily provided for within any of the generic zones, and to ensure compatibility with adjacent development.
Clause 4.2 provides (in effect) that it is intended that the Council will have regard to the stated objectives when called upon to exercise its discretion, for example when considering the appropriateness of discretionary uses in zones or uses not listed in the zoning table.
As noted above, SUZ3 includes Lot 1003 but also some 1320 residential lots. A copy of that part of sch 4 of LPS 17 that deals with SUZ3 (SUZ3 Table) is included as the Schedule to these reasons. As can be seen, there are five special uses listed for SUZ3 as permissible. Two are described as 'P', meaning that they are 'permitted … provided the use complies with the relevant development standards and requirements of the Scheme'.[3]
[3] Adopting the symbols explained by LPS 17 cl 4.3.2, referred to further below.
They are:
-Home Occupation;
-Tourism & Recreation Resort comprising:
▪Golf Courses;
▪Resort Centre Facilities including restaurants etc;
▪Outdoor recreation including tennis, bowls, swimming pool, horse riding;
▪Indoor Recreation (including squash, gym, billiards);
▪Hotel/motel accommodation;
▪Ancillary retailing including souvenirs, convenience goods;
▪Ancillary services such as hairdressing;
▪Single houses or multiple dwellings at densities depicted on the Structure Plan
The other three uses are denoted 'D' which means that, 'the use is not permitted unless the local government has exercised its discretion by granting planning approval'.[4] They are not relevant to this appeal, but are:
-Home Business;
-Grouped dwelling at densities depicted on the Structure Plan;
-Ancillary Accommodation.
[4] LPS 17 cl 4.3.2.
Of the SUZ3 uses, only Tourism & Recreation Resort is in issue in this appeal. It is not otherwise defined under LPS 17 and is not a use listed in the zoning table.
The other important land use relevant to this appeal is Telecommunications Infrastructure. The zoning table includes that use. It is defined in the scheme dictionary in pt B of sch 1 as follows:
'telecommunications infrastructure' means land used to accommodate any part of the infrastructure of a telecommunications network and includes any line, equipment, apparatus, tower, antenna, tunnel, duct, hole, pit or other structure used, or for use in or in connection with, a telecommunications network and includes Radio & T.V. Installations used for business purposes or commercial gain;
By cl 4.4.1 of LPS 17, where a specific use is mentioned in the zoning table, it is deemed to be excluded from the general terms used to describe any other use.
Clause 4.4.2 applies where a use is not listed:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class the local government may -
…
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
Clause 4.3.3 of LPS 17 provides that:
Notwithstanding any provisions to the contrary under the scheme, a change in the use of land from one use to another is permitted without any requirement for planning approval, if:
…
(b)the change is to an incidental use that does not change the predominant use of the land, and complies with all the relevant development standards and requirements applicable under the Scheme including any requirements applicable under any current planning approval pertaining to the land.
'Incidental use' is defined in the scheme dictionary at sch 1(A) of LPS 17 and means 'use of premises which is ancillary and subordinate to the predominant use'. 'Premises' is also defined and means 'lands or buildings'.
Tribunal's reasons
The Reasons proceeded as follows:
(a)the Tribunal said that the question of characterisation of use depends upon issues of statutory construction;
(b)the purpose of the proposed development was identified:[5]
[5] Reasons [23].
The proposed development involves construction of infrastructure that will be used, as part of a wider set of infrastructure, to provide improved mobile telephone coverage for customers of the applicant within an area that includes SUZ3. A purpose can be identified, but this does not assist in determining whether the proposed development involves a use that is permissible within SUZ3.
(c)it was necessary to consider how the land use classification Tourism & Recreation Resort and the components of that classification were to be properly understood;[6]
[6] Reasons [23].
(d)Optus' submission that Tourism & Recreation Resort is used in sch 4 of LPS 17 as an amalgamation of a number of land use classifications used in the zoning table could only be accepted in part;[7]
[7] Reasons [25] ‑ [26]. Whilst not set out, presumably the Tribunal was referring to the fact that some uses - notably singe houses and multiple dwellings - are listed in the zoning table and are defined in the sch 1 definitions.
(e)not all the uses referred to are classifications also referred to in the zoning table and some have meanings apparently deliberately different to those of similar words used in the zoning table;[8]
[8] Reasons [26] ‑ [27], the Tribunal noting for example that the expressions 'outdoor recreation' and 'indoor recreation' are deliberately used under the term 'tourism & recreation resort' rather than 'recreation - private' or 'recreation - public', which are defined terms included in the zoning table.
(f)the use proposed by Optus directly meets the definition of Telecommunications Infrastructure as used in the zoning table;[9]
[9] Reasons [29].
(g)the real question is whether the umbrella classification Tourism & Recreation Resort includes the use proposed by Optus regardless of it meeting the definition of Telecommunications Infrastructure and regardless of the fact the definition of Tourism & Recreation Resort does not expressly include Telecommunications Infrastructure;[10]
[10] Reasons [29].
(h)the effect of the word 'comprises' after 'Tourism & Recreation Resort' is exclusionary:[11]
[11] Reasons [29].
The statement that 'Tourism & Recreation Resort' comprises a number of listed uses leaves no room for any argument that it includes any uses that are not listed. (original emphasis)
(i)the operation of cl 4.4.1 of LPS 17 plainly does not extend to land use classifications unless they are referred to in the zoning table: accordingly the fact the proposed development directly met the definition of the more specific use of Telecommunications Infrastructure did not mean it was excluded from the general land use classification of Tourism & Recreation Resort (which does not feature in the zoning table);[12]
[12] Reasons [29].
(j)the proposed development does not fall within the ordinary meaning of 'ancillary services' as an element of Tourism & Recreation Resort;[13]
[13] Reasons [30] ‑ [36].
(k)the ordinary meaning of the word 'ancillary' meant that only uses which were connected with, and supplementary or supportive of, the dominant uses of Tourism & Recreation Resort could be described as 'ancillary services';[14]
[14] Reasons [32].
(l)what was required by the ordinary meaning of the term 'services' in the context of LPS 17 was that the proposed development was for the provision of a service as opposed to the offering for sale of a good;[15]
[15] Reasons [33].
(m)the inclusion of the example 'such as hairdressing' did not limit the scope of 'ancillary services' to a single type or category of service;[16]
(n)however, the proposed development did not involve the provision of a service within the ordinary meaning of that word and accordingly could not be described as an 'ancillary service':[17]
While it may be that infrastructure of this type (that is, of the type here proposed) is used, as part of a wider complex of infrastructure, technology and personnel to provide mobile telephone coverage, it is artificial to describe the use of the land that hosts a single piece of infrastructure as providing a service within the ordinary meaning of that word. The definition of 'Telecommunications Infrastructure' in Sch 1 of LPS 17 is phrased in terms of land used to accommodate relevant infrastructure. That is, in my view, consistent with the ordinary understanding that, in such a case, the land is being used to house a 'thing' and not to provide a service within the ordinary meaning of that word.
(o)therefore, the proposed development did not fall within the meaning of Tourism & Recreation Resort as that term is used in sch 4 of LPS 17;[18]
(p)it was then necessary to consider whether by cl 4.3.3(b) the proposed development was permitted as an incidental use that does not change the predominant use of the land;[19]
(q)whilst noting that incidental use is a defined term, the definition in essence captures the common law principles in relation to determining whether a use is incidental: that is, it is first necessary to identify the predominant use and then consider whether the proposed use is consequent upon or naturally pertaining to such use;[20]
(r)Optus' submission that the incidental use test was to be applied taking into account the use of SUZ3 as a whole (that is, residential and resort) was rejected. It is the use of the land the subject of the development application that matters. The predominant use of that land was as a resort, as submitted by the City;[21] and
(s)the proposed development (as a matter of fact) includes infrastructure intended to achieve improved mobile telephone coverage over the entire SUZ3 (including the residential lots) and beyond. It is not a use incidental to use as a resort.[22]
[16] Reasons [34].
[17] Reasons [36].
[18] Reasons [37].
[19] Reasons [38] ‑ [48].
[20] Reasons [40].
[21] Reasons [41] ‑ [47].
[22] Reasons [48].
Optus does not contend that the proposed development does not fall within the definition of Telecommunications Infrastructure as used in the zoning table. However, that it falls within that definition does not of itself preclude it being considered in the context of Tourism and Recreation Resort.
Grounds of appeal
Optus relies on two grounds of appeal:
1.The learned Tribunal erred in law by misdirecting itself in the interpretation and application of cl. 4.7.2 of the City of Swan Local Planning Scheme 7 (Scheme) in that the Tribunal:
(a)failed to identify the purpose of the Special Use Zone No. 3;
(b)misinterpreted the scope of the 'Tourism and Recreation Resort' use class set in Schedule 4 to the Scheme by applying an exclusionary, rather than inclusionary, meaning to the word 'comprising'; and
(c)failed to determine whether the proposed use of the land was for the identified purpose of the Special Use Zone No. 3.
2.Further and in the alternative, the learned Tribunal erred in law in the construction of the 'Tourism and Recreation Resort' land use classification in Schedule 4 of the Scheme by attributing to the word 'service' a meaning other than its ordinary meaning.
Nature of an appeal - leave required and on a question of law
An appeal to this court from a decision of the Tribunal may only be brought by leave and on a question of law.[23]
[23] SAT Act s 105(1), s 105(2).
An appeal on a question of law is in the nature of judicial review proceedings; the existence of a question of law is not merely a qualifying condition for, or gateway to, an appeal but is the subject of the appeal itself; an appeal on a question of law does not, and should not, open the door to appeal by way of rehearing.[24]
[24] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18], [20] ‑ [21];There are particular principles as to whether questions as to the ordinary meaning of words in a statute give rise to a question of law or fact, and they are dealt with below after the general statutory construction principles are addressed.
Leave to appeal
Leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so. Considerations relevant to leave to appeal include the importance of the question of law sought to be raised, whether there is sufficient doubt about it to justify leave, and whether it would impose substantial injustice to allow any error to go uncorrected, although when the order below is final, injustice will often be more readily discernible.[25]
[25] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] ‑ [17].
Construction principles
LPS 17 is made under pt 5 div 1 of the PDA and is subsidiary legislation.[26] It came into operation on 18 February 2008 on being published in the Western Australian Government Gazette. By virtue of s 87(4) of the PDA a local planning scheme when approved by the Minister and published in the Western Australian Government Gazette has full force and effect as if it were enacted by the PDA.
[26] Interpretation Act 1984 (WA) s 5.
The relevant principles with respect to the construction of statutes and subsidiary or delegated legislation were summarised in The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd.[27] The task of statutory construction begins and ends with a consideration of the statutory text.[28] The meaning of the text is to be determined by reference to its context, in its widest sense, including the general purpose and policy of the provision.[29] However, the purpose is to be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the provisions.[30]
[27] The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36 [119] ‑ [131] (Buss JA), [272] ‑ [274] (Murphy JA); City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 [47].
[28] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
[29] Pilbara Infrastructure [121] citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 21; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [47]; Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82].
[30] Pilbara Infrastructure [123].
The general principles with respect to the construction of statutes apply to the construction of subsidiary or delegated legislation.[31] In the case of subsidiary legislation the context includes the statute under which the legislation has been made.[32]
[31] Pilbara Infrastructure [131] citing Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398.
[32] Pilbara Infrastructure [131] citing The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344 [36].
By s 18 of the Interpretation Act 1984 (WA), in the interpretation of a 'written law', which includes 'subsidiary legislation', a construction that would promote the purpose or object underlying the written law (whether stated in the written law or not) should be preferred to a construction that would not promote that purpose or object. The provision is not directed to a construction which 'will best achieve' the object of the legislation, but is rather directed to a choice between a construction that would promote the underlying objects or purposes of the legislation, and one which would not.[33]
[33] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 262.
It is a relevant aspect of the context of words in a planning scheme that they were not drafted by a Parliamentary draftsperson.[34] Accordingly a planning scheme should be construed broadly rather than pedantically and with a sensible practical approach.[35] However, that does not mean that different rules of construction apply.[36]
[34] Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 [37].
[35] Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132 [25] (McLure JA).
[36] Chiefari v Brisbane City Council [2005] QPELR 500; [2005] QPEC 9 [9] ‑ [10]; Western Australian Planning Commission v Narcom Holdings Pty Ltd [37].
Whilst dictionaries may assist in identifying the popular meaning of words, they may include any number of meanings. It is not enough to select any one of those meanings 'and leave it at that'.[37] The phrase must be interpreted in context, assisted as it may be, but not necessarily bound, by one of a variety of dictionary meanings.[38] The meaning of a word as a matter of ordinary English usage does not override the necessity to construe the statutory language in context. Statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.[39]
[37] Falconer v Pedersen [1974] VR 185, 187.
[38] Falconer v Pedersen (187); Van der Feltz v City of Stirling [2009] WASC 142 [66].
[39] See generally Pearce and Geddes, Statutory Interpretation in Australia (8th ed, 2014) [3.30].
Ordinary meaning of words in statute - question of law or fact
Ground 2 raises the issue of the meaning of ordinary words in a statute.
The proper construction of a statute or instrument is a question of law. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical meaning is a question of law. On the other hand, determining the ordinary meaning of a word, or its non‑legal technical meaning, is a question of fact.[40]
[40] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa‑Gevaert Ltd; Australian Gas Light Co v Valuer‑General (1940) SR (NSW) 126.
The question as to whether facts found fall within the provisions of a statutory enactment is well accepted to be a question of law. However, special considerations apply in the case of a statute which uses words according to their common meaning.[41]
[41] Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1.
In Collector of Customs v Pozzolanic Enterprises Pty Ltd,[42] the court set out five general propositions which emerged from previous cases as to the distinction between questions of law and questions of fact. Those propositions have been cited on many occasions, and were referred to by the High Court in Collector of Customs v Agfa - Gevaert Ltd.[43]
[42] Pozzolanic.
[43] Collector of Customs v Agfa‑Gevaert Ltd; Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276.
The fifth proposition in Pozzolanic was as follows:[44]
The question whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1981) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ).
…
This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council [supra] at 8.
[44] Pozzolanic (287).
On that basis, if it is alleged that the relevant tribunal has reached a wrong decision there can be a question of law but of a limited character: the question would normally be whether the decision was unreasonable in the sense that no tribunal considering the ordinary use of language could reasonably reach that decision.[45]
[45] Brutus v Cozens [1973] AC 854; Australian Gas Light (138).
Whether the material before the court reasonably admits of different conclusions as to whether the subject matter falls within the ordinary meaning of the words is a question of law. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion and that is a question of fact.[46]
[46] Hope v Bathurst City Council (8) (citing New South Wales Associated Blue‑Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509, 512).
Application of the principles is not without difficulty.[47] In some circumstances those principles give way to the overriding principle that as words take their meaning from their context, the construction of statutory language will usually give rise to a question of law. For example, the utility of the Pozzolanic exposition, which in turn relies upon Hope v Bathurst, may be lost to a degree where the phrase or term in question is complex or composite and a value judgment is involved.[48] Words in the statute may draw shades of meaning from their context in a way which is significant so that resolving their meaning raises a question of law.[49]
[47] See generally Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Ed) [4.90], [4.100], [4.230].
[48] Pozzolanic (289) ('operations connected with … '); Industry Research & Development Board v Bridgestone Australia Ltd [2001] FCA 954; (2001) 109 FCR 564 ('dealing with each other … from positions of comparable bargaining power').
[49] Duffy v Da Rin[2014] NSWCA 270; (2014) 87 NSWLR 495 [25] ‑ [30].
Ground 1
No failure to identify purpose
Optus contends by appeal ground 1 that the Tribunal was required by cl 4.7.2 to consider whether the use of the proposed development would be for the purpose of SUZ3. In its written submissions, the contention was clarified: Optus submits that what was required under cl 4.7.2 of LPS 17 was to consider whether the use of the proposed development would be for the purpose of Tourism & Recreation Resort.[50]
[50] Appellant’s outline of written submissions dated 10 October 2016 [14].
The starting point is cl 4.7.2 and the prohibition on use of any land or any structure or buildings on land 'except for the purpose set out against that land in Schedule 4'.
That directs attention to what is 'set out against' the land in SUZ3 (see SUZ3 Table). There is no heading 'purpose' set out against the land but there is a heading 'special uses'. The appellant accepts that having regard to the SUZ3 Table, the purpose includes Tourism & Recreation Resort.
However, it contends that 'purpose' is a broader concept than land use and is not confined to the uses or activities listed under it. Therefore, it contends, the Tribunal took too narrow a view of purpose in confining it to the listed uses and did not apply its ordinary meaning.
There are difficulties with this submission.
Bearing in mind the wording of appeal ground 1(a)) it is clear that the Tribunal did in fact consider the purpose for which land could be used under SUZ3. It was expressly asked to consider Tourism & Recreation Resort. The Tribunal proceeded on the proper basis that the starting point is statutory construction.
The Tribunal properly considered the SUZ3 Table, identified the relevant purpose and properly identified the scope of that purpose. It would be artificial to impute a meaning to the words Tourism & Recreation Resort without regard to the words appearing immediately after that qualify that expression. The permitted purpose is a Tourism & Recreation Resort of a particular nature. That particular nature is one comprising certain components. Those components are listed. That is the natural and unambiguous meaning of the text.
In support of its argument, Optus refers to cl 4.4.2 of LPS 17. The so‑called 'use not listed' clause allows the City to determine and permit a person to carry out use of land for a use not included in the zoning table.
Optus properly accepts that cl 4.4.2 only applies in the case of land the subject of the zoning table. If Optus were seeking to develop the mobile phone base station in land covered by the zoning table, it could not rely on cl 4.4.2, as the use would be covered by the use Telecommunications Infrastructure.
However, Optus contends that cl 4.4.2 displays an intention under the scheme for uses to be permitted even where they are not expressly referred to and says that by analogy, the purpose of SUZ3 should be understood as potentially broader than the specified uses in the SUZ3 Table.[51]
[51] ts 22 ‑ 23.
An argument based on analogy with cl 4.4.2 does not assist Optus. Clause 4.7.2 expressly deals with use of land in special zones and states what those uses are. If the proposed use is not for one of the purposes referred to, the use is not permitted. Optus' analogy submission would allow for any use not referred to in SUZ3 to be considered. That is clearly not the intent of the particular provisions in LPS 17 that apply to special use zones. Nor is it consistent with the objectives of the special use zones set out in cl 4.2.25.
I have taken into account that there is some drafting overlap between the zoning tables and SUZ3 in that the symbols P and D are explained in the context of the zoning tables (cl 4.3.2) but not where they are used in the special use zones. Optus did not suggest that mere use of those symbols supported the application of cl 4.4.2 to SUZ3, and in my view it does not. The City submitted that those symbols are commonly used and understood in the context of land use under LPS 17 and I accept that is the case.
In conclusion, as to the meaning of 'purpose,' the language employed is clear and there is no role for displacing the meaning of the text in cl 4.7.2 and the SUZ3 Table. Nor was it necessary nor appropriate for the Tribunal to attribute a meaning to the words Tourism & Recreation Resort other than the meaning expressly provided for.
'Comprising' is exclusive
It is then necessary to consider the scope of the use Tourism & Recreation Resort. Optus contends that the Tribunal, because of its alleged focus on listed activities rather than purpose, misdirected itself as to the elements listed under Tourism & Recreation Resort and wrongly determined that 'comprises' connotes a complete list. Optus contends the proper approach to purpose would require an inclusive interpretation, so including its proposed development.
The ordinary meaning of 'comprising' embraces to the exclusion of others.[52] However, its meaning must be considered in context and the authorities indicate that the word can signify 'composed of' (exclusive), or 'encompassing' or 'containing' (inclusive).
[52] Black's Law Dictionary, 10th ed (Bryan Garner) (347).
In General Clutch Corporation v Sbriggs Pty Ltd,[53] Lindgren J undertook a detailed analysis of 'comprising'. The issue concerned the interpretation of a claim in a patent which was alleged to have been infringed. His Honour held that 'comprising' in the phrase 'a spring clutch comprising … [a list of parts]' meant 'consisting of', 'made up of', 'composed of', or 'constituted by'.
[53] General Clutch Corporation v Sbriggs Pty Ltd [1997] FCA 499; (1997) 38 IPR 359.
His Honour noted there are examples of dictionary definitions of 'comprising' that use the word 'include'.
There are also authoritative books on English usage that support an exclusive meaning:[54]
The effect of the opinions expressed in these works is that in a construction of the kind with which we are concerned in which the subject of the verb is the noun indicating the whole as distinct from the parts, prima facie the meaning is 'consists of', 'is made up of', 'is composed of' or 'is constituted by'[.]
[54] General Clutch Corporation v Sbriggs Pty Ltd (373).
His Honour then surveyed the cases that consider the word, noting that the preponderance of authorities supports an exclusive meaning. For example, in Chain Bar Mill Co Ltd v Wild Ltd,[55] the court said:
One would, I think, most naturally expect the word 'comprising' to be followed by several items making up the whole[.]
[55] Chain Bar Mill Co Ltd v Wild Ltd (1939) 56 RPC 446, 453.
In Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd[56] it was implicit in the High Court's judgment that 'comprising' meant 'made up of'.
[56] Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9; (1980) 144 CLR 253, 266 (Aickin J, other members concurring).
In Asahi Kasei Kogyo Kabushiki Kaisha v WR Grace & Co[57] Heerey J considered the definition of an invention said to be plastic film that comprised certain components. Lindgren J summarised his Honour's treatment of 'comprising' as follows:[58]
His Honour noted a submission that the words 'comprising' and 'comprised' 'were used in an inclusive sense, that is to say they did not mean 'made up of', but rather 'include'’. He noted that, according to this submission, the film the subject of the claim might contain 'all sorts of things not mentioned such as an oxygen barrier layer or an adhesive layer': (at 514). His Honour accepted a submission that the word 'comprises' in Claim 1 meant 'consists of'. His Honour added, '[t]hat seems to me to be the primary natural meaning of the word 'comprise' and in this context it gives a sensible and workable meaning': (at 515) - His Honour's decision was not disturbed on appeal[.]
[57] Asahi Kasei Kogyo Kabushiki Kaisha v WR Grace & Co [1991] FCA 969; (1991) 22 IPR 491.
[58] General Clutch Corporation v Sbriggs Pty Ltd (375).
The cases referred to by Lindgren J in the main dealt with inventions and patents, but that does not mean the subject matter of itself supports a different and exclusive approach. There are other cases in the intellectual property field which have interpreted 'comprising' as inclusive.[59]
[59] For example, Primary Health Care Ltd v Commissioner of Taxation [2010] FCA 419; (2010) 186 FCR 301 [171] ‑ [172]; Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd [2004] FCA 323; (2004) 61 IPR 442 [117] ‑ [133].
'Comprising' has also been considered in a statutory context. For example, in Walker Corporation Pty Limited v Director‑General,[60] the Court of Criminal Appeal referred to the analysis by Lindgren J in General Clutch Corporation v Sbriggs Pty Ltd. The case was an appeal against a conviction for the offence of causing the clearing of indigenous native vegetation without consent. Native vegetation was defined in the legislation as indigenous if it comprises a species of vegetation that existed before European settlement. An entire area was cleared that contained one or more of several species of indigenous native vegetation, but was not exclusively made up of such vegetation. The Court of Criminal Appeal accepted that a purposive interpretation required that the word 'comprises' be construed as 'includes' because to construe it as meaning 'consists of' in that case would frustrate the Act's stated objectives of protecting native vegetation and preventing broadscale clearing.[61]
[60] Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change & Water [2012] NSWCCA 210; (2012) 82 NSWLR 12.
[61] Walker Corporation Pty Limited v Director-General [33].
In GM Architects Pty Ltd v Strathfield Council,[62] the relevant words in a statutory instrument were: 'a building on the land that comprises a key site shown in column 1 of the table … where column 1 is a list of available numbered key sites'.[63] The court held that as a matter of construction 'comprising' was exclusive and means 'consists of': the provision did not apply where some of the land in question was not a key site.
[62] GM Architects Pty Ltd v Strathfield Council [2016] NSWLEC 1216 .
[63] GM Architects Pty Ltd v Strathfield Council [46].
The cases reiterate the importance of considering the meaning in context. In this case, that task is to be undertaken in accordance with the principles applicable to statutory construction.
In my view, it was clearly open to the Tribunal to construe the words 'Tourism & Recreation Resort comprising' as signifying a permitted use as a resort that is made up of the components listed, and no more. The components, in some cases, have the potential to include elements that are not specified. For example, the component described as 'Outdoor recreation including tennis, bowls, swimming pool, horse riding' on its natural reading permits other outdoor recreational activities to be catered for beyond those specified.
In reaching this view, I have taken into account the following matters.
As the Preamble to LPS 17 notes, the scheme controls the types of uses and development allowed in different zones. The inclusion of the use Tourism & Recreation Resort in SUZ3 is clearly intended to permit the use of land within that zone for the Vines Resort and Country Club. The specific nature of the conditions (fourth column SUZ3 Table) supports this view: see, for example, the reference to 'the resort area' and 'the golf course'. As the title of the zone suggests, it is a special use that is facilitated.
In that context, it is not surprising that the nature of the permitted resort is defined and confined. An interpretation of 'comprising' that is consistent with that approach promotes certainty and is consistent with the objectives of specific as against generic zoning. It is to be preferred to an interpretation equivalent to 'including,' which would permit the introduction of additional and unspecified components.
The fact that some of the components of Tourism & Recreation Resort are expressed to be inclusive (as with Outdoor recreation) does not derogate from the argument. To the contrary, it could be said that use of the word 'including' in contradistinction to 'comprising' is deliberate. It is not of itself decisive.
Optus refers to the drafting practice in the LPS 17 dictionary (specifically sch 1 pts B and C) of defining land uses by using the word 'means' followed by a description. It says that if 'comprising' was intended to be exclusive, the word 'means' would have been used.[64] I do not accept that submission. The fact that 'means' is used in a dictionary is not surprising. The definitions are littered with references to 'and include', 'but does not include' or 'excluding'. The word 'means' is not relied upon by the draftsperson to invariably define the scope of the definition on its own. The word 'means' cannot easily be substituted for 'comprising' in the SUZ3 definition of Tourism and Recreation Resort. As a matter of grammar and syntax, it simply does not fit without the addition of further words. There is nothing surprising about the use of 'comprising' in a stand‑alone definition of a particular resort in a special use zone.
[64] Appellant's outline [25] ‑ [26].
Optus also relies on the fact that Tourism & Recreation Resort is not a defined term in the sch 1 dictionary. It says what is contained in SUZ3 is not a definition and the bullet points are not part of a definition.[65] One could argue that the words in SUZ3 are a definition or a description: nothing turns on how one labels those particular words. In my view, however they are labelled, the words perform the task of description and confinement for the Vines Resort and Country Club.
Purpose of proposed development
[65] Appellant's outline [27].
The third limb of ground 3 overlaps with the first and second limbs. I do not consider the Tribunal's treatment of the purpose of the proposed development and the purpose of SUZ3 was in error.
The Tribunal noted Optus' submission that:[66]
(a)the purpose was not use for Telecommunication Infrastructure but to provide mobile telephone coverage within SUZ3;
(b)the use of land as a Tourism & Recreation Resort generates a particular demand for mobile coverage, thus the purpose fits the more specific land use category Tourism & Recreation resort.
[66] Reasons [16] ‑ [17].
Against the backdrop of the particular questions as to use that it was asked to determine, the Tribunal said as follows:[67]
In this case, the question of characterisation depends on issues of statutory construction rather than any need to work out what activities are involved in the proposed development and the purpose of those activities. The proposed development involves construction of infrastructure that will be used, as part of a wider set of infrastructure, to provide improved mobile telephone coverage for customers of the applicant within an area that includes SUZ3. A purpose can be identified, but this does not assist in determining whether the proposed development involves a use that is permissible within SUZ3. Rather, it is necessary to focus on how the land use classification 'Tourism & Recreation Resort' and the components of that classification are to be properly understood.
[67] Reasons [23].
Clearly a purpose for the proposed infrastructure was identified. The purpose for which land could be used under SUZ3 was also considered (as already addressed).
The Tribunal was required to address a factual scenario where objectively the proposed development fitted squarely within the defined use of Telecommunications Infrastructure. The real issue for the Tribunal in answering the first question was whether the land use classification for the proposed development could properly be Tourism & Recreation Resort. That question was addressed. The scope of the purpose for which land can be used within SUZ3 was further considered by the Tribunal when it addressed the issue of ancillary services (ground 2).
Optus relies upon authorities such as Shire of Perth v O'Keefe[68] and Chamwell Pty Ltd v Strathfield Council[69] in submitting that any use must be for a purpose: hence it is not sufficient to look at use. That may well be so, but in this case the purpose for which the relevant land in SUZ3 (the relevant part of Lot 1003) can be used is clear and described: the land can be used as a Tourism & Recreation Resort of a particular nature. That is the 'end' for which it is to be used.
[68] Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529.
[69] Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400.
As the City submits, the facts in Chamwell were quite different. In that case, developments in the nature of road works, properly understood, were for the purpose of a supermarket:[70]
In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads.
[70] Chamwell Pty Ltd v Strathfield Council [35].
By contrast, the proposed mobile phone base station is not part and parcel of the Tourism & Recreation Resort. The proposed use may well provide a benefit to Optus and Vodaphone customers of improved coverage in SUZ3 and beyond. Indeed, as already noted, it is an agreed fact that the proposed development is intended to provide improved mobile coverage and internet speed through mobile data service generally in the localities of The Vines and Ellenbrook[71] (that is, beyond the Vines Resort and Country Club and the 1320 residences in SUZ3). The improved telecommunications coverage is not designed to serve the end of enabling the use of the land as a Tourism & Recreation Resort, but to serve the end of mobile phone and internet coverage.
[71] Reasons [8].
I do not consider any of the matters referred to in ground 1 disclose an error of law on the part of the Tribunal. In my view the Tribunal properly applied cl 4.7.2 in the circumstances of this case.
Ground 2
Optus contends that its proposed development falls within the component of Tourism & Recreation Resort that reads 'Ancillary services such as hairdressing'. It is not in issue that those words are to bear their ordinary meaning. The words are not defined and there is no suggestion they have any technical or legal signification.
In particular, Optus challenges the finding as to the meaning of 'services'.
Considering the ordinary meaning of 'ancillary' and 'services' in isolation is artificial. The significance and meaning of individual words is affected by other words and the syntax of a phrase or sentence as a whole.[72]
[72] Collector of Customs v Agfa‑Gevaert Ltd (396) ‑ (397).
The Tribunal properly considered the words were to be given their ordinary meaning and then proceeded to determine their ordinary meaning, taking into account their context.
Optus does not challenge the meaning attributed to 'ancillary'. That meaning is that services included within Tourism & Recreation Resort are only those services that are connected with, and supplementary or supportive of the dominant uses.[73] The dominant uses are those that comprise Tourism & Recreation Resort that are not described as ancillary.[74]
[73] Reasons [32].
[74] Reasons [32].
The Tribunal noted that the term 'services' is one of potentially multiple meanings.[75] The Tribunal also noted that many of the defined terms in the scheme dictionary in sch 1 would fall within the ordinary meaning of services, although emphasising that for SUZ3 the services were still limited to those of an ancillary nature.[76] The meaning of 'services' was read down to distinguish between denoting the provision of a service as opposed to the offering for sale of a good. Such a limitation was clearly appropriate where 'Ancillary retailing including souvenirs, convenience goods' is also a component. Otherwise, the Tribunal did not seek to narrow its meaning other than to consider the context in which the words are used.
[75] Reasons [33].
[76] Reasons [35].
That task of considering context is essential, and that is the task it then undertook as to 'ancillary services', as reflected in Reasons [36] set out above.
The Tribunal referred to the need to consider LPS 17 as a whole and noted the definition of Telecommunications Infrastructure. Importantly, by that definition, for the purpose of LPS 17 generally the use of land for any piece of infrastructure to be used in providing a mobile network service is not described in terms of a network service but in terms of accommodation of that physical infrastructure. That is an important part of the context of LPS 17.
The anticipated benefit to Vodaphone and Optus customers within SUZ3 and beyond is independent from and not ancillary to the dominant use of the land within SUZ3 as a Tourism & Recreation Resort, as those words are ordinarily understood. This supports the Tribunal's conclusion. It was not in issue that the Vines Resort and Country Club and SUZ3 already has mobile coverage. Counsel for Optus made oral submissions to the effect that the real purpose of the proposed development was to benefit the Vines Resort and Country Club and its guests,[77] but that is a narrower basis than reflected in the agreed facts, and ignores the very significant number of residential lots in SUZ3.
[77] ts 13 ‑ 14, 17.
In my view, the Tribunal made a finding as to the scope of the ordinary meaning of the words 'ancillary service' in the context of SUZ3 and LPS 17 to the extent required of it. It did not need to specify all the types of services that may or may not fall within such words. It addressed whether the proposed development fell within the ordinary meaning of those words in the context in which they appear and in my view the finding was reasonable and does not disclose error.
Although not referred to by the Tribunal, there are other provisions in LPS 17 specifically regulating Telecommunications Infrastructure. See, for example, cl 5.8 which provides that an application for approval of such development is to take into account any relevant state planning policies and must have regard to the objectives of preventing unnecessary proliferation and duplication of such infrastructure and minimise visual impact. The fact that LPS 17 includes such provisions is consistent with the Tribunal's finding that in the context of LPS 17, such infrastructure does not fall within the ordinary meaning of a 'service' but is considered an item of physical infrastructure.
The City submitted that the words 'such as hairdressing' assisted in ascertaining the ordinary meaning of 'ancillary services' in context.[78] At first blush, that appears so. However, where only one example is provided after a general term, the authorities suggest the ejusdem generis rule is not attracted. It has been suggested that there is still room to have regard to specific words that follow a general term as part of the general consideration of context.[79] In this case, the Tribunal did not place weight on those words and the outcome would therefore not be different regardless.
[78] ts 35.
[79] Pearce and Geddes, Statutory Interpretation in Australia [4.30].
It remains to consider some of Optus' particular submissions. Optus submits the Tribunal did not apply the ordinary meaning of 'services'. It says:[80]
[80] See Appellant's outline [32] ‑ [33], [36] ‑ [38].
(a)the Tribunal decided without expert evidence that 'the purpose of the proposed development was not the provision of mobile phone coverage', despite facts being agreed that the purpose of the antennas and radio communication dish was to allow communication between towers and to mobile devices;
(b)the ordinary meaning of 'service' is disclosed by the Macquarie Dictionary Online, as follows:[81]
[81] In fact a definition given of 'servicing', rather than 'service'.
1.an act of helpful activity.
…
3.the providing of, or a provider of, a public need, such as communications, transport, etc.
4.the organised system of apparatus, appliances, employees, etc., for supplying a public need.
…
31.[servicing] (of a town) to provide housing, amenities, etc., for an operation such as a coalmine.
(c)the Tribunal focussed on the network rather than the transmission of radio frequency;
(d)the Tribunal erred in ignoring the evidence before it, making a finding in the absence of supporting evidence and purporting to take judicial notice of a matter that is not notorious as a fact.
As to those submissions (which are to some extent already covered):
(a)the number of definitions provided in the Macquarie Dictionary Online exceeds thirty. That of itself indicates, as the Tribunal identified, that the word 'services' is one of broad and potentially many meanings. The meaning must be construed taking into account that the question is whether the proposed development falls within the ordinary meaning of an ancillary service such as hairdressing that is ancillary to, relevantly, the Tourism & Recreation Resort. The Tribunal was not concerned with its meaning at large;
(b)the reference to the physical components for the infrastructure does not mean that the Tribunal considered them as only physical components. As the Reasons disclose, it well understood that those physical components had a use or purpose in providing network coverage through SUZ3 and beyond. However, it did not consider such use or purpose fell within the ordinary meaning of 'service' in the context of an ancillary service such as hairdressing that is ancillary to, relevantly, the Tourism & Recreation Resort and in the context of LPS 17;
(c)the Tribunal was obliged to determine the ordinary meaning of the relevant words. It is usual for judicial notice to be taken of the meaning of ordinary English expressions. The Tribunal's finding that the ordinary understanding is that the land where it is proposed to host a single piece of infrastructure is being used to house a 'thing' and not to provide a 'service' was expressly said to be in such a case [that is, in the context of LPS 17, including its definition of Telecommunications Infrastructure]. That is, in such a case, the ordinary meaning of 'service' does not extend to the proposed development. Such a finding was reasonably open to the Tribunal. Again, the question is not the ordinary meaning of 'services' in isolation.
Having regard to the principles set out above, the question posed by ground 2 could be considered a question of fact. It concerns the ordinary meaning of words in a statutory instrument and a conclusion made by the Tribunal as to whether the facts fall within or outside that ordinary meaning.
However, I have proceeded on the basis that the ground gives rise to a question of law, taking into account the positioning of the word 'services' within the broader phrase 'ancillary services', the nexus to be established between such ancillary services and the Tourism & Recreation Resort, and the particular statutory context, including the treatment of telephone infrastructure under LPS 17. This is an example where the word used in the statutory instrument draws shades of meaning from its context in a way which is significant and involves an element of value judgment.
In my view, the conclusion of the Tribunal was reasonably open to it. No error of law has been demonstrated.
Second question addressed by Tribunal
Finally, on the face of the appeal grounds and written submissions, Optus did not challenge the Tribunal's answer to the second question it was asked to determine (as to incidental use).
During the hearing, there was some equivocation on the part of Optus' counsel as to whether there was a challenge to that answer.[82] In the end, it was submitted that the issue was absorbed by the second ground (by the submissions as to the meaning of ancillary).[83] I do not consider it appropriate to consider 'incidental use' separately in the circumstances.
[82] ts 3.
[83] ts 20 - 21.
Disposition of application for leave to appeal and appeal
I would grant leave with respect to grounds 1 and 2 taking into account that the Tribunal's finding on the preliminary questions is in effect a final decision. However, I dismiss the appeal on both grounds.
SCHEDULE: SUZ3 TABLE
| No | Description of Land | Special Use | Conditions |
| 3. | Land generally bounded by Ellen Brook Drive to the south, the Ellen Brook to the east and the Ellenbrook Estate to the north and west, in the locality of The Vines, as delineated on the scheme maps. Note: There is land within the general area referred to above that is not included in this zone. Reference should be made to the scheme maps to determine the precise extent of the zoning. | 'P' - Home Occupation; - Tourism & Recreation Resort comprising: ▪ Golf Courses; ▪ Resort Centre Facilities including restaurants etc; ▪ Outdoor recreation including tennis, bowls, swimming pool, horse riding; ▪ Indoor Recreation (including squash, gym, billiards); ▪ Hotel/motel accommodation; ▪ Ancillary retailing including souvenirs, convenience goods; ▪ Ancillary services such as hairdressing; ▪ Single houses or multiple dwellings at densities depicted on the Structure Plan. 'D' - Home Business; - Grouped dwelling at densities depicted on the Structure Plan; - Ancillary Accommodation. | 1. Subdivision and development within the resort area shall be subject to the provisions of Part 5A of the Scheme, including the preparation and approval of a Structure Plan. 2. The Structure Plan shall incorporate the following design components and staging requirements: - a Resort Centre comprising Members Facilities, Hotel/Motel and other density tourist accommodation and recreation facilities; - dwelling units amongst the golf course connected to the Resort Centre by footpaths, cycleways and bridle paths as well as roads and golf buggy paths; - a vegetated foreshore area along Ellen Brook blended with the golf course which will assist in the management of nutrients, such foreshore being provided to the satisfaction of the Environmental Protection Authority; - a vegetated Foreshore Protection Area along Saw Pit gully and its major tributary blended with the development which will assist in the management of nutrients and run-off from the golf course and residential components; - no development is to take place within 30 metres either side of Ellen Brook; - Bush fire management provisions. 3. The resort centre area and such other areas as depicted on the Structure Plan shall be connected to a package waste water treatment system approved by the Council and the Health Department. 4. All the tourism, recreational and residential accommodation elements of the Resort shall be connected to a reticulated water supply system 5. No development shall occur until a plan for the management or nutrient input to Ellen Brook has been prepared and approved by the Council and the Environmental Protection Authority. 6A.3 With the intention of preserving the natural environment of the resort area a minimum of 60% of the area of a lot designated for development at a density of R2.5 and 40% of the area of a lot designated for development at a density of R7.5 such that the minimum area of lot per dwelling shall be 1500m2 shall be retained in its natural state subject to the following: a) The Council in writing may approve a variation to the area to be retained in a natural state; b) The area to be retained in a natural state on Lots 169 to 173 (inclusive) shall include the 25 metre rear building setback. c) The term natural state does not exclude 'Parkland clearing'. 7. Owners of land within the resort area may form and be financial members of a tourist and recreation club with a constitution approved by the Council. 8. The owner of the Resort Centre shall be responsible for: a) Maintenance and management of the golf course, and other recreation facilities. b) Maintenance of overall landscaping of road verges and other public places. c) Advising Council on proposals for other development in the resort area. d) Advising land owners of their rights and obligations under the Scheme. e) Preparing and enforcing rules relating to such matters as keeping of horses and other animals, fencing standards, building and outbuilding standards and maintenance. |
Neil v Legal Profession Complaints [No 2] [2012] WASCA 150 [12]; City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466 [36] ‑ [38].
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