Paintessa Developments Pty Ltd and Town Of East Fremantle
[2014] WASAT 81
•1 JULY 2014
PAINTESSA DEVELOPMENTS PTY LTD and TOWN OF EAST FREMANTLE [2014] WASAT 81
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 81 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:166/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 1/07/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Development approval is required under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3) for the part of the proposed development that is upon land zoned under TPS 3 | ||
| B | |||
| PDF Version |
| Parties: | PAINTESSA DEVELOPMENTS PTY LTD TOWN OF EAST FREMANTLE |
Catchwords: | Town planning Development application Demolition of existing building and construction of three two storey dwellings Preliminary issue Whether development approval is required for proposed development under local planning scheme Part of land reserved as 'Primary Regional Road' under Metropolitan Region Scheme and not reserved or zoned under local planning scheme Remainder of land zoned under local planning scheme Local planning scheme states 'All development on land zoned and reserved under the Scheme requires the prior approval of the local government' Development approval granted by Western Australian Planning Commission under Metropolitan Region Scheme Whether Metropolitan Region Scheme is inconsistent with local planning scheme |
Legislation: | Metropolitan Region Scheme, cl 5, cl 10, cl 13, cl 24, cl 24(1), cl 29(1)(a)(i), cl 29(1)(c), Pt II Planning and Development Act 2005 (WA), s 16(1), s 87(4), s 124(1), s 124(2), s 125(1), s 126(1) Town of East Fremantle Town Planning Scheme No 3 , cl 1.3, cl 1.4, cl 1.5(c), cl 1.5(d), cl 1.10, cl 3.2, cl 3.2.2, cl 4.1.1, cl 4.3.1, cl 8.1, Pt 3, Pt 4, Pt 8 |
Case References: | Chiefari v Brisbane City Council [2005] QPELR 500 City of Kwinana v Lamont [2014] WASCA 112 Galloway and Associates and City of Melville [2007] WASAT 238 Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274 Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 SPB (Australia) Pty Ltd & Ors v Town of Claremont [2003] WATPAT 138 |
Orders | On the application determined on the documents by Deputy President, Judge Parry, it is on 1 July 2014 ordered that:,1. The preliminary issue is answered as follows:,Development approval is required under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3) for the part of the proposed development that is upon land zoned under TPS 3. ,2. The proceeding is listed for a directions hearing at 12 pm on 18 July 2014. |
Summary | The Tribunal was called upon to determine a preliminary issue as to whether development approval is required for a proposed residential development under a local planning scheme in circumstances where only part of the land proposed to be developed is zoned under the local planning scheme and the whole of the development site is reserved or zoned under the Metropolitan Region Scheme and development approval had been granted by the Western Australian Planning Commission for the proposed development under the region scheme.,The Tribunal determined that a provision of the local planning scheme stating that 'All development on land zoned and reserved under the Scheme requires the prior approval of the local government' has the effect that development approval is required under the local planning scheme for the part of the proposed development that is upon land zoned under that scheme. The Tribunal determined that there is relevantly no inconsistency between the Metropolitan Region Scheme and the local planning scheme insofar as the local planning scheme requires development approval for the proposed development to the extent that the proposed development is upon land zoned under the local planning scheme. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PAINTESSA DEVELOPMENTS PTY LTD and TOWN OF EAST FREMANTLE [2014] WASAT 81 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 1 JULY 2014 FILE NO/S : DR 166 of 2013 BETWEEN : PAINTESSA DEVELOPMENTS PTY LTD
- Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Town planning Development application Demolition of existing building and construction of three two storey dwellings Preliminary issue Whether development approval is required for proposed development under local planning scheme Part of land reserved as 'Primary Regional Road' under Metropolitan Region Scheme and not reserved or zoned under local planning scheme Remainder of land zoned under local planning scheme Local planning scheme states 'All development on land zoned and reserved under the Scheme requires the prior approval of the local government' Development approval granted by Western Australian Planning Commission under Metropolitan Region Scheme Whether Metropolitan Region Scheme is inconsistent with local planning scheme
Legislation:
Metropolitan Region Scheme, cl 5, cl 10, cl 13, cl 24, cl 24(1), cl 29(1)(a)(i), cl 29(1)(c), Pt II
Planning and Development Act 2005 (WA), s 16(1), s 87(4), s 124(1), s 124(2), s 125(1), s 126(1)
Town of East Fremantle Town Planning Scheme No 3 , cl 1.3, cl 1.4, cl 1.5(c), cl 1.5(d), cl 1.10, cl 3.2, cl 3.2.2, cl 4.1.1, cl 4.3.1, cl 8.1, Pt 3, Pt 4, Pt 8
Result:
Development approval is required under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3) for the part of the proposed development that is upon land zoned under TPS 3
Summary of Tribunal's decision:
The Tribunal was called upon to determine a preliminary issue as to whether development approval is required for a proposed residential development under a local planning scheme in circumstances where only part of the land proposed to be developed is zoned under the local planning scheme and the whole of the development site is reserved or zoned under the Metropolitan Region Scheme and development approval had been granted by the Western Australian Planning Commission for the proposed development under the region scheme.
The Tribunal determined that a provision of the local planning scheme stating that 'All development on land zoned and reserved under the Scheme requires the prior approval of the local government' has the effect that development approval is required under the local planning scheme for the part of the proposed development that is upon land zoned under that scheme. The Tribunal determined that there is relevantly no inconsistency between the Metropolitan Region Scheme and the local planning scheme insofar as the local planning scheme requires development approval for the proposed development to the extent that the proposed development is upon land zoned under the local planning scheme.
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Mr CA Slarke
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Chiefari v Brisbane City Council [2005] QPELR 500
City of Kwinana v Lamont [2014] WASCA 112
Galloway and Associates and City of Melville [2007] WASAT 238
Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
SPB (Australia) Pty Ltd & Ors v Town of Claremont [2003] WATPAT 138
Preliminary issue
1 By an application dated 5 February 2013, Paintessa Developments Pty Ltd (Paintessa) sought development approval from the Town of East Fremantle (Town or Council) for a development at No 235 (Lot 1851) Canning Highway, East Fremantle (site) described on the development application form as 'Demolition of existing building and construction of three 2 storey dwellings' (development application).
2 The site has frontages to Canning Highway and Irwin Street and contains a former corner shop/deli and dwelling at the Canning Highway frontage. Although the site is proposed to be subdivided into three lots, it presently comprises one lot and is not yet subdivided. Canning Highway is designated as a 'Primary Regional Road' reserve under the Metropolitan Region Scheme (MRS).
3 The site is partly reserved as 'Primary Regional Road' under the MRS and partly zoned 'Urban' under the MRS. The part of the site that is zoned 'Urban' under the MRS is also zoned 'Residential 12.5/40' with 'Additional Use 11' under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3). The part of the site that is reserved as 'Primary Regional Road' under the MRS is not reserved or zoned under TPS 3. The part of the site that is reserved under the MRS, and is not reserved or zoned under TPS 3, includes the existing building containing the former corner shop/deli and dwelling.
4 The Town referred the development application to Main Roads Western Australia (Main Roads WA) for its comments and recommendation. By letter to the Town dated 8 March 2013, Main Roads WA advised that the proposed development is 'acceptable' to Main Roads WA, subject to certain conditions.
5 At its meeting on 16 April 2013, the Council of the Town considered the development application and resolved to refuse it for various reasons. Under cover of a letter dated 18 April 2013, the Town issued its 'Decision on Application for Planning Approval' under TPS 3, dated 16 April 2013, to Paintessa.
6 On 14 May 2013, Paintessa sought review by the Tribunal of the Town's decision to refuse development approval under TPS 3. During the course of the review, the parties agreed that the Town does not have delegated authority to determine the development application for the purposes of the MRS and consequently the development application was forwarded to the Western Australian Planning Commission (Commission) for determination under the MRS. On 28 November 2013, the Commission granted approval to commence the development under the MRS.
7 In this context, on 4 April 2014, the following issue was identified for determination by the Tribunal as a preliminary issue:
Whether development approval is required for the proposed development under TPS 3.
8 Paintessa contends that the answer to the preliminary issue is 'No'. The Town and the Commission (which was granted leave to make a written submission in relation to the preliminary issue) each contend that the answer to the preliminary issue is 'Yes, to the extent that the proposed development is on land zoned under TPS 3'. For reasons which I will give after setting out relevant provisions of the MRS and TPS 3, I accept the Town's and the Commission's contention.
Relevant provisions of the MRS and TPS 3
9 Clause 13 of the MRS relevantly states that 'no person shall commence or carry out any development on reserved land, other than the erection of a boundary fence, without first applying for and obtaining the written approval of the Commission to do so'. Clause 24(1) of the MRS relevantly states that 'approval of the responsible authority under this scheme is required for the development of land within areas zoned under this Part'. Under cl 5 of the MRS, the 'responsible authority' is the Commission or such other authority as the Commission delegates under s 16(1) of the Planning and Development Act 2005 (WA) (PD Act). As noted earlier, the Commission has not delegated its function of determining the development application under the MRS to the Town.
10 Under cl 28 of the MRS, an application for development approval 'to commence and carry out development' under the MRS must be submitted 'to the local authority in whose district the land the subject of the application is situate'. Where the application is for the development of land reserved under Pt II of the MRS (which is the case in relation to the part of the site that is reserved as 'Primary Regional Road' under the MRS) or the application is for development of land relevantly abutting reserved land and is not of a type which may be determined by the local authority under a delegation pursuant to s 16(1) of the PD Act (which is the case in relation to the part of the site that is zoned under the MRS), cl 29(1)(a)(i) and cl 29(1)(c) of the MRS, respectively, requires the local authority to which a development application under the MRS is submitted to forward it to the Commission for determination within seven days.
11 Importantly, the MRS recognises that development approval under another planning instrument may also be required, in addition to development approval under the MRS, in order for a development to lawfully be carried out. Clause 10 of the MRS states as follows:
Except as otherwise provided in this Scheme, no development of any land within the metropolitan region shall be commenced or continued without the written approval of the responsible authority in addition to any other permission or approval that may otherwise be required by law. (Emphasis added)
12 Furthermore, cl 24 of the MRS states as follows:
Approval under this Part does not exempt the person to whom the approval is granted from the requirement, if any, to obtain permission or approval for development on the land under any other law. (Emphasis added)
13 Clause 1.3 of TPS 3 states as follows:
The Scheme applies to the Scheme Area, which covers all of the local government district of the Town as shown on the Scheme Map.
14 Under cl 1.4 of TPS 3, the Scheme comprises the Scheme Text and the Scheme Map. Clause 1.5 of TPS 3 sets out the purposes of the Scheme, which include:
(c) [to] zone land within the Scheme Area for the purposes defined in the Scheme; [and]
(d) [to] control and guide land use and development[.]
15 Clause 1.10 of TPS 3 concerns the relationship of TPS 3 to the MRS. Clause 1.10 of TPS 3 states as follows:
The Scheme is complementary to the Metropolitan Region Scheme and the provisions of the Metropolitan Region Scheme continue to have effect.
16 Part 3 of TPS 3 concerns 'Reserves' and includes cl 3.1 and cl 3.2. Clause 3.1 of TPS 3 states as follows:
Certain lands within the Scheme Area are shown on the Scheme Map and classified into either:
(a) Regional Reserves; or
(b) Local Reserves.
17 Clause 3.2 of TPS 3 states as follows:
3.2.1 The land shown as 'Regional Reserves' on the Scheme Map are lands reserved under the Metropolitan Region Scheme and are shown on the Scheme Map for the purposes of the Metropolitan Region Town Planning Scheme Act 1959/WA Planning Commission Act 1985. These lands are not reserved under the Scheme.
3.2.2 The approval of the local government under the Scheme is not required for the commencement or carrying out of any use or development on a Regional Reserve.
18 Part 4 of TPS 3 concerns 'Zones' and includes cl 4.1 and cl 4.3. Clause 4.1.1 of TPS 3 states that the Scheme Area 'is classified into the zones shown on the Scheme Map'. Clause 4.3.1 of TPS 3 states that '[t]he Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones'.
19 Finally, Pt 8 of TPS 3 concerns 'Development of Land' and contains the following provision in cl 8.1:
Subject to clause 8.2 [which is not relevant], all development on land zoned and reserved under the Scheme requires the prior approval of the local government. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 9.
Is development approval required for the proposed development under TPS 3?
20 Under s 87(4) of the PD Act, TPS 3 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 4647 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).
21 In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council [2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
22 In my view, on its proper interpretation, cl 8.1 of TPS 3 requires development approval of the Town under TPS 3 for the part of the proposed development that is upon land zoned under TPS 3. The meaning of cl 8.1 accords with the grammatical meaning of the provision. The grammatical meaning of cl 8.1 is clear, unambiguous and emphatic:
… [A]ll development on land zoned and reserved under the Scheme requires the prior approval of the local government [under TPS 3]. A person must not commence or carry out any development [on land zoned or reserved under TPS 3] without first having applied for and obtained the planning approval of the local government [under TPS 3].
23 Insofar as it relates to the part of the site which is zoned under TPS 3, the requirement in cl 8.1 of TPS 3 to obtain prior development approval of the Town in relation to the proposed development is not qualified by cl 3.2.2 of TPS 3 which states that '[t]he approval of the local government under the Scheme is not required for the commencement or carrying out of any use or development on a Regional Reserve'. Reading cl 8.1 in the context of TPS 3 as a whole, including cl 3.2.2 of TPS 3, the requirement to obtain prior development approval under TPS 3 in relation to the development application applies and applies only to the part of the proposed development that is on land zoned under TPS 3.
24 The meaning of cl 8.1 of TPS 3 is also confirmed by a purposive interpretation of the provision. It is apparent from the purposes of TPS 3 set out in cl 1.5(c) and (d) of TPS 3, cl 4.1 of TPS 3 concerning zones, cl 4.3 of TPS 3 concerning the Zoning Table and cl 8.1 itself that the classification of the Scheme Area into zones shown on the Scheme Map and the requirement for prior development approval under TPS 3 for use or other development of zoned land is an important method by which TPS 3 seeks to control and guide development including land use in the Scheme Area. Although, under cl 3.2.2 of TPS 3, the approval of the Town under TPS 3 is not required for the commencement or carrying out of any use or other development on the part of the site that is reserved under the MRS, the achievement of the purpose of TPS 3 and in particular of cl 8.1 to control and guide land use and other development on land that is classified into a particular zone shown on the Scheme Map requires that prior development approval be obtained under TPS 3 for any use or other development on the zoned part of the site. TPS 3 manifests an intention to regulate, by zoning and development assessment and approval, land use and other development on the part of the site that is zoned, even though TPS 3 does not regulate the use or other development of the part of the site that is reserved under the MRS.
25 Mr MJ Hardy, counsel for Paintessa, concedes that it is 'commonplace and accepted' that development approval may be required for the same development under both a region planning scheme, such as the MRS, and a local planning scheme, such as TPS 3, even though 'on occasion, differing decisions [may be] reached in relation to the same proposal' under the region and local planning schemes. However, Mr Hardy submits that the circumstances of this case are 'more narrowly defined' than this commonplace occurrence. He submits that the effect of the reservation of part of the site under the MRS is to render the whole of the site exempt from the necessity to obtain development approval from the Town under TPS 3, because there is an 'inconsistency' within the meaning of s 124(1) of the PD Act between the MRS and TPS 3 in light of 'the particular provisions of the MRS, the nature of the land constituted by one lot and the effect of the notice of delegation and the mechanical processes contemplated by the [PD] Act and the notice of delegation'.
26 Section 124(1) and (2) of the PD Act states as follows:
(1) If a region planning scheme is inconsistent with a local planning scheme, the region planning scheme prevails over the local planning scheme to the extent of the inconsistency.
(2) If a region planning scheme is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the region planning scheme has effect, resolve to prepare
(a) a local planning scheme which is consistent with the region planning scheme; or
(b) an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme,
and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme.
27 Section 125(1) of the PD Act states as follows:
The Minister may, by written notice, direct a local government to prepare a local planning scheme or to amend a local planning scheme, in the time and manner set out in the notice, to ensure consistency with a region planning scheme, a proposed region planning scheme or a proposed amendment to a region planning scheme.
28 Section 126(1) of the PD Act states as follows:
If a region planning scheme delineates land comprised in a local planning scheme as a reserve for any public purpose, then the local planning scheme, in so far as it operates in relation to that land, is, by force of this section and without any further action under this Act, amended to such extent (if any) as is necessary to give effect to the reservation under the region planning scheme.
29 Relying upon s 124(1) of the PD Act and obiter observations of Burt CJ in University of Western Australia v City of Subiaco (1980) 52 LGRA 360 (UWA), Mr Hardy submits as follows:
Clearly, there is the potential for absurd results to be obtained if a single parcel within cadastral boundaries were to be capable of approval solely by the [Commission] with respect to portion only and yet require two approvals to the balance, where the development the subject of the proposal is itself a unified proposal. That would place all of the planning authorities and an applicant in an invidious and unacceptable position.
The only sensible outcome, as a consequence, is to treat 'the land' in this case as the whole of the lot upon which the proposed development is situated. The land in this case is land 'reserved under the MRS' albeit that it is not the entirety of the land. An extension of that argument, therefore, is that there would be an inconsistency between the MRS and TPS3 so as to attract the operation of Part 9 of the [PD] Act and, in particular, s124(1) and, prospectively, s124(2), s125(1) and s126(1).
To create a distinction in this case based upon a noncadastral unsurveyed boundary so as to give rise to both zoned and unzoned land for the purposes of TPS3 is unacceptable and can be properly resolved by according preeminence to the provisions of the MRS.
30 In my view, the MRS is not inconsistent with TPS 3 insofar as TPS 3 requires development approval for the proposed development to the extent that the proposed development is upon land zoned under TPS 3. As noted earlier, Paintessa concedes that it is usual for development approval to be required under both the MRS and a local planning scheme where the land is zoned under both instruments. Indeed, this is contemplated by the MRS itself in cl 10 and cl 24. Moreover, as has been recognised by the Full Court of the Supreme Court (Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274 (Marshall) at [31]), the former Town Planning Appeal Tribunal (SPB (Australia) Pty Ltd & Ors v Town of Claremont [2003] WATPAT 138 at [79]) and this Tribunal (for example, Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 at [88]), a region planning scheme has a different role and emphasis to a local planning scheme and the focus of planning assessment under each instrument is likely to be different. As Parker J (with whom Murray and Anderson JJ agreed) said in Marshall at [31]:
It is apparent from the MRS Act and the Planning Act that it is not the legislative scheme that the MRS and a town planning scheme of a local government perform precisely the same role. The MRS is clearly intended to provide a broad general blueprint to guide and coordinate the overall planning and development of the metropolitan region. Within that broad and general blueprint, it is left to the very many town planning schemes of the local governments within the metropolitan region to regulate that planning and development in a more particular and detailed manner, and with appropriately greater attention to the precise local planning needs of particular localities and communities. As Kennedy J observed in City of Bayswater v Minister for Family and Children's Services & Ors [2000] WASCA 151, 108 LGERA 182 at 185 [5]:
'The Metropolitan Region Town Planning Scheme Act 1959 (WA) provides for the planning and development of land within the metropolitan region. It is concerned with the broader aspects of town planning, and, by s 34, town planning schemes made by local authorities within the metropolitan region are required to be consistent with the provisions of the Metropolitan Region Scheme.'
32 Furthermore, the fact that the proposed development is a 'unified proposal' on a single allotment that occupies both the part of the site that is zoned under TPS 3 and the part of the site that is not zoned under TPS 3 does not mean that there is an inconsistency between the MRS and TPS 3. The planning authority of the Town under TPS 3 extends only to the part of the proposed development that is on land zoned under TPS 3. This includes the whole of one of the proposed dwellings, all but a small part of the middle of the proposed dwellings and a small part of the front proposed dwelling. The planning authority of the Town under TPS 3 does not extend to the demolition of the existing building on the site, because the building is located wholly on land that is not zoned under TPS 3. Contrary to Paintessa's argument, the result is not 'absurd' if a part of a unified development approved by the Commission under the MRS is not capable of being carried out because it has not been approved by the Town under TPS 3. As noted above, the focus of the planning assessment under the MRS and TPS 3 is likely to be different. The situation is in substance no different to where the whole of a proposed development site is zoned under both a region planning scheme and a local planning scheme. In both cases, in order for development to lawfully be carried out on land zoned under the local planning scheme, development approval is required to be obtained under both the local planning scheme and the region planning scheme.
33 Further, the fact that there is a 'distinction in this case based upon a noncadastral unsurveyed boundary so as to give rise to both zoned and unzoned land for the purposes of TPS 3' is not 'unacceptable'. Rather, it is a product of the provisions of the MRS and TPS 3 which are capable of operating harmoniously and are not inconsistent with each other. Zoning boundaries do not have to accord with cadastral boundaries. Indeed, because the 'Primary Regional Road' reservation under the MRS follows the alignment of Canning Highway in the vicinity of the site and because cadastral boundaries of allotments fronting Canning Highway are irregular, in the locality of the site it is the norm that the planning authority of the Town extends to only part of the properties fronting Canning Highway. This does not place the Commission, the Town or land owners of properties fronting Canning Highway in 'an invidious and unacceptable position'. Each planning authority's role and function is defined by the planning scheme for which it is the responsible authority. Landowners of properties fronting Canning Highway require development approval under both schemes to the extent to which their properties are zoned under TPS 3. In the same way that landowners of all properties in the metropolitan region require concurrent development approval under the MRS and under the applicable local planning scheme for land zoned under the local planning scheme before they can lawfully carry out development on their land, the owner of land only part of which is zoned under TPS 3 requires development approval from the Town under TPS 3 to the extent that the proposed development is on land zoned under TPS 3.
34 Furthermore, Paintessa's submission that there is an inconsistency between the MRS and TPS 3, because 'the only sensible outcome … is to treat ''the land'' in this case as the whole of the lot upon which the proposed development is situated' as 'the land in this case is land ''reserved under the MRS'' albeit that it is not the entirety of the land' does not accord with the MRS itself. The MRS does not reserve the whole of the site as 'Primary Regional Road' on any possible interpretation of that instrument. Rather, the MRS reserves only a part of the site. Nor does the MRS manifest an intention to exclusively regulate physical development and use of the whole of a lot upon which a proposed development is situated only part of which is reserved under the MRS.
35 The 'notice of delegation and the mechanical processes contemplated by the [PD] Act and the notice of delegation', referred to in Paintessa's submission, does not assist its submission, for two reasons. First, the terms of the notice of delegation cannot provide a basis for interpreting a provision of a local planning scheme. Second, the notice of delegation relates to the development application under the MRS, not to the development application under TPS 3. Paintessa submits that, because the development application under the MRS was required to be submitted to Main Roads WA for its comment and recommendation and because the recommendation provided by Main Roads WA was not acceptable to the Town, 'the decision was referred to the [Commission] for determination'. However, while the development application under the MRS was referred to the Commission for determination, the Town was not required to refer the development application under TPS 3 to Main Roads WA for comment and recommendation and was not required to refer the decision in relation to the development application under TPS 3 to the Commission for determination. Indeed, the Commission has no authority to determine the development application under TPS 3.
36 Finally, as noted earlier, Paintessa relies on obiter observations of Burt CJ in UWA. In that case, the Supreme Court was called upon to determine whether planning approval was required under a local planning scheme to develop land reserved under the MRS for 'University purposes'. Burt CJ held at 364 that:
[T]he relevant land is not 'reserved under the scheme' within the meaning of cl. 9 of the defendant city's scheme and the development of it by the university as proposed does not require the approval of the defendant city.
37 His Honour then said the following at 364 365:
This conclusion is, I think, supported by and confirmed by the text of the region scheme, it being remembered that each scheme when made has effect as if enacted in an Act of Parliament the region scheme as if enacted under the Metropolitan Region Town Planning Scheme Act and the defendant city's scheme as if enacted under the Town Planning Act, and in the case of conflict it is the provisions of the former Act which are to prevail: s. 3 of the Metropolitan Region Town Planning Scheme Act.
By Div. 1 of Pt IV of the region scheme, being cl. 28 of the text:
'An application for the approval of the responsible authority to commence and carry out development shall be made in the form set out in Form 1 to this Scheme and shall be submitted in duplicate to the local authority in whose district the land, the subject of the application, is situate together with such plans and other information as the responsible authority may reasonably require.'
For the purposes of that provision, there being no delegation, the authority is 'the responsible authority': cl. 5.
By cl. 29 of the region scheme:
'The local authority to which such application is duly submitted shall
(1) Where the application is for the development of land reserved under Part II of this Scheme, forward the application together with the Local Authority's recommendation to the Authority for determination:
(2) …
(3) …'
The land in this case is 'land reserved under Part II of this Scheme' and it will be seen that cl. 29(1) of the text of the region scheme makes it clear that the application for its development is to be submitted to the authority for its 'determination' which I would understand to mean for its final determination and not for its determination subject to the approval of the defendant city under its scheme. To construe it in that way would, I think, be to reveal an inconsistency within the meaning of s. 3 of the Metropolitan Region Town Planning Scheme Act and the provisions of the region scheme would prevail.
38 The Tribunal is not bound to follow these observations of Burt CJ, because they were clearly obiter given that his Honour had already determined that planning approval was not required under the City of Subiaco's local planning scheme as the land was not reserved under that scheme. With respect, I do not regard the obiter statement by Burt CJ in the final paragraph of the quotation as persuasive, because it does not appear to appreciate that when development approval is required for the same development under both the MRS and a local planning scheme, the requirement for development approval under each planning framework operates independently and without any inconsistency, as recognised in the Full Court's decision in Marshall and as reflected in tribunal decisions referred to earlier. As also noted earlier, the MRS itself in cl 10 and cl 24 recognises that concurrent development approval may be required to carry out development under both the MRS and a local planning scheme. These provisions of the MRS were not referred to in UWA.
39 The obiter statement by Burt CJ also appears, with respect, to erroneously conflate the determination of two separate development applications under two separate planning regimes (the MRS, on the one hand, and a local planning scheme on the other) into a single process of determination of a single development application. Although, in practice, where there is delegation from the Commission to a local government under s 16(1) of the PD Act in relation to the determination of a development application under the MRS, the local authority would usually determine both development applications concurrently, it is important to appreciate that, at law, there are two separate development applications made under two separate planning instruments.
Conclusion
40 The preliminary issue is answered as follows:
Development approval is required under TPS 3 for the part of the proposed development that is upon land zoned under TPS 3.
Orders
41 The Tribunal makes the following orders:
1. The preliminary issue is answered as follows:
Development approval is required under the Town of East Fremantle Town Planning Scheme No 3 (TPS 3) for the part of the proposed development that is upon land zoned under TPS 3.
2. The proceeding is listed for a directions hearing at 12 pm on 18 July 2014.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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