Pennock v City of Busselton - [2021] WASC 29

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PENNOCK -v- CITY OF BUSSELTON [2021] WASC 29
CORAM:   ALLANSON J
HEARD:   21 DECEMBER 2020
DELIVERED          :   12 FEBRUARY 2021
FILE NO/S:   CIV 1888 of 2020
BETWEEN:   ROWLAND CHARLES PENNOCK
First Applicant
ANNE MARIE PENNOCK
Second Applicant
AND
CITY OF BUSSELTON
Respondent
STUART LLOYD PHILLIPS
First Other Party
FIONA JANE PHILLIPS
Second Other Party

Catchwords:

Judicial review - Planning and development - Construction of local planning scheme - Where building height limit prescribed for special character area - Where provisions for special character area take precedence over any other provisions of scheme - Whether building height limit subject to discretion to permit non‑complying development

Judicial review - Discretion - Where application brought 18 months after decision - Whether explanation for delay - Whether remedy should be refused for unwarrantable delay

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

First Applicant	:	P G McGowan
Second Applicant	:	P G McGowan
Respondent	:	J Skinner
First Other Party	:	P McQueen
Second Other Party	:	No appearance

Solicitors:

First Applicant	:	Williams & Hughes
Second Applicant	:	Williams & Hughes
Respondent	:	Thomson Geer - Perth
First Other Party	:	Lavan
Second Other Party	:	No appearance

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

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; 237 LGERA 333
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389

ALLANSON J:

Introduction

The applicants apply for judicial review of the decision of the City of Busselton to grant approval for a proposed development in Yallingup. The decision was made on 28 February 2019, under the City of Busselton Local Planning Scheme No 21. They seek remedies of certiorari and a declaration.
The proposed development is in an area known as the Yallingup Special Character Area for which special provision is made in sch 4 of the Scheme.
The applicants for judicial review are the registered proprietors of a property adjacent to the development.
The development application was made by Stuart Lloyd Phillips and Fiona Jane Phillips. Mr Phillips appeared as the other party in this action.
The City of Busselton appeared as the respondent to the application for judicial review.
The application is brought on the single ground that the respondent erred in law in granting development approval to a proposed development which exceeded 10 m above natural ground level when it had no power so to do by reference to cl 5.7.2 and sch 4 of the Scheme. The application was filed on 21 August 2020.

The evidence and submissions

The applicants relied on the affidavit of the first named applicant, Rowland Charles Pennock, sworn 21 August 2020.
The other parties relied on the affidavit of Stuart Lloyd Phillips, sworn 24 September 2020.
The City did not file evidence.
The factual issues related primarily to the question of the applicants' delay in bringing proceedings. The issue of validity of the development approval turned on the construction of the Scheme, and required no resolution of disputed facts.
All parties filed written submissions and were heard on the application.

The development approval

The development approval was on an application by Mr and Ms Phillips, as owners of 39 Hammond Road, Yallingup, to build an over height single house with reduced setbacks on their land. The application was approved subject to conditions, including that the development 'shall be restricted to a maximum of 10.61 metres above the natural ground level'.[1]
[1] Affidavit of Rowland Charles Pennock, sworn 21 August 2020, RCP 2.

The legislative framework

The City of Busselton Local Planning Scheme No 21 is made pursuant to the Planning and Development Act 2004 (WA).
Part 4 of the Scheme text sets out general development requirements.
Any development of land is to comply with the provisions of the Scheme.[2] By cl 4.2.2:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the R-Codes is to conform to the provisions of those Codes.
[2] Cl 4.1
The Residential Design Codes or R-Codes are a State planning policy made under s 26 of the Planning and Development Act. The R‑Codes apply to all residential development throughout Western Australia.[3]
[3] R-Codes, cl 1.4.
Part 5 of the R-Codes provides for design elements that apply to single houses, and grouped and multiple dwellings in areas coded less than R40. The objectives of pt 5 include, relevantly, to ensure that development and design is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings.
In preparing a local planning scheme, a local government is required to have due regard to the R-Codes, but a scheme may modify their application.[4] Clause 4.3 of the Scheme provides for variations and exclusions to the application of the R-Codes.

Special Control Areas

[4] Planning and DevelopmentAct s 77.

Part 5 of the Scheme text provides for special control areas shown on the Scheme map. By cl 5.1.2, 'the provisions applying to the special control areas apply in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme'.
Among the special control areas are those designated as a 'Special Character Area'. By cl 5.7:
5.7.1.The local government may devise development objectives, provisions and/or controls to reinforce, retain or change the characteristics, form and nature of a designated Special Character area, with such objectives, provisions and/or controls being specified in Schedule 4.
5.7.2Where such objectives, provisions and/or controls are specified in Schedule 4 in relation to a designated Special Character area, those objectives, provisions and/or controls act in conjunction with the other provisions of this Scheme relevant to that area with the exception that the provisions of Schedule 4 will take precedence over any other provisions of this Scheme. (emphasis added)
Schedule 4 designates five areas as Special Character Areas, including the Yallingup Special Character Area. Item 2 of sch 4 sets out provisions that apply to subdivision and development within the Yallingup Special Character Area. Item 2(b) provides:
No residential development shall exceed a maximum height of 10 metres measured vertically from natural ground level at any point of the building except for Lot 105 Dawson Drive, which shall be limited to a maximum height that ensures that the building will not intrude into the skyline created by the dunal system when viewed from beach areas;
By cl 4.3.1(e):
All Special Character areas provided for in Schedule 4 and pursuant to clause 5.7 are excluded as necessary from the provisions of the R-Codes to the extent of any conflict between the standards set out in Schedule 4 and the R-Codes.
Clause 4.5 of provides for variations to site and development standards and requirements. In particular, by cl 4.5.1:
Except for development in respect of which the R-Codes apply, if a development is the subject of an application for development approval and does not comply with a standard or requirement prescribed under the Scheme (including a policy or plan adopted pursuant to the Scheme), the local government may, despite the noncompliance, approve the application unconditionally or subject to such conditions as the local government thinks fit.
At a general level, the question in this action is whether the City had a discretion to approve residential development that exceeded the maximum height prescribed in item 2, sch 4. The applicant did not contend that, if the City had that discretion, it exercised the discretion unreasonably or otherwise unlawfully.

Consideration

Construction principles

The principles relating to the construction of a scheme are not in doubt. They were recently restated by the Court of Appeal in Australian Unity Property Ltd v City of Busselton, where the court emphasised the imperative to give primacy to the language used, and said:
Context and purpose may affect the meaning of the language that Parliament has chosen to use. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words are used with other than their ordinary meaning. The task of construction is not to make a fortress out of the dictionary. However, the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.
In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.[5]

The issues

[5] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [83] - [84] (citation of authorities omitted).

The critical issue is whether the maximum height limit in sch 4, item 2(b) excludes the general discretion to approve development despite non-compliance with the prescribed limit on building height. Clause 4.5.1 gives a local government power to approve an application, even where it does not comply with a standard or requirement prescribed under the Scheme. The City refers to the statement in cl 5.7.2 that the objectives, provisions and controls in sch 4 act in conjunction with the other provisions of the Scheme. But proper force should be given to the express provision in cl 5.7.2 that ‑ as an exception to that general provision ‑ the provisions of Schedule 4 take precedence over any other provisions of the Scheme.
It does not appear at all contentious that the height prescription in sch 4 takes precedence over that in cl 4.8.1, which provides for building height 'except where otherwise provided for in the Scheme'. Clause 5.7.2 is, however, of broader application and expressly provides for precedence over 'any other provision'. The precedence is not limited in any way, for example by reference to direct inconsistency. Nor is it helpful to distinguish between a development control and a provision 'mechanical in nature', as submitted by the other party.
The terms of cl 5.7.2 give the prescription of height limit in sch 4, Item 2(b), precedence over any other provision of the Scheme, and that includes precedence over the City's general power to approve development with a building height that does not comply with the provisions of the Scheme.
It was argued by the City that sch 4 and cl 4.8 operate together so that the 10 m limit in sch 4, item 2(b) is read into cl 4.8.1 and is subject to the specific discretion in respect to that clause that is provided in cl 4.8.3. Having regard to the Scheme text, that is not the way the provisions were intended to operate. Item 2(b) makes independent provision for the maximum height of a residential development in the Yallingup Special Character Area. It does not need to be read into cl 4.8, and is not subject to the discretion in cl 4.8.3 which applies 'in respect to' cl 4.8.1 and cl 4.8.2.
It was also argued on behalf of the City that to give the express provisions of sch 4 precedence, so that the standards for Special Character Areas were incapable of variation, would include commonly varied matters such as set-backs. The City submitted that, were that the intention, it would have been noted in the Scheme. That, in my opinion, is what the Scheme has expressly done.
The error in the decision of the City is material and jurisdictional: the City had no power to approve a development application for a building height greater than 10 m.

The delay

Because of the delay in bringing the application, the applicants must obtain leave to proceed with the application.[6] Quite apart from the limitation period prescribed by the Rules, the remedy of certiorari is discretionary, and the applicants' delay in seeking a remedy is a relevant factor to whether the discretion should be exercised in their favour.
[6] Rules of the Supreme Court 1971 (WA) O 56 r 2(4).
The delay is long, and the explanation for it in the affidavit of Mr Pennock is inadequate.
Stephen Pennock, the applicants' son, is an architect. He corresponded with the City on their behalf during the development approval process. The decision to grant approval was made by the City on 28 February 2019, and notice of it was sent to Stephen Pennock but, apparently, he overlooked it.[7]
[7] Affidavit of Mr Pennock [19].
Mr Pennock says that he was first aware of the decision of the City on 1 May 2019.[8]
[8] Affidavit of Mr Pennock [17].
Stephen Pennock was provided with copies of the development approval plans on 9 May 2019.[9]
[9] Affidavit of Mr Pennock [21] ‑ [22] and RCP 8.
The applicants' first response was to discuss their concerns with the City, which agreed to review the development application.[10] Between 29 May and 12 June 2019, the applicants corresponded with the City. The City agreed to conduct an independent review.[11]
[10] Affidavit of Mr Pennock [23].
[11] Affidavit of Mr Pennock, RCP 10, RCP 12.
Mr Pennock also contacted Mr Phillips and asked him to consent to release of the survey plans.[12]
[12] Affidavit of Mr Pennock, RCP 11.
By 14 June 2019, the applicants said they were obtaining legal advice.[13]
[13] Affidavit of Mr Pennock, RCP 10, 74
On 17 June 2019, and again on 19 August 2019, the applicants were advised that the City could not revoke development approval.[14] They knew, or ought to have known, that they would need to act to set aside the approval.
[14] Affidavit of Mr Pennock, RCP 10, 65; RCP 16, 126.
Mr Pennock deposed that at no time during his correspondence with the City up to 19 August 2019 was he aware of his right to apply for judicial review, or aware of the limitation period.[15] The applicants seemed, however, to be aware of legal options, writing to the other party on 18 June 2019 that they were considering options which 'may be costly for you and cause lengthy delays to the project'.[16] This was in response to an email from Mr Phillips that he had been advised that to change his plans would require him to start again with regard to architectural and engineering fees.
[15] Affidavit of Mr Pennock [42].
[16] Affidavit of Mr Pennock, RCP 11, 77.
On 8 August 2019, the applicants advised the City that they had sought advice and were giving notice that they would take steps to compel the City to stop the work.[17]
[17] Affidavit of Mr Pennock, RCP 16, 128.
The applicants sought legal advice in August 2019 from the firm of Moharich & Moore.[18] There were some delays caused by travel in late August and September 2019. In November 2019, the applicants instructed their solicitors to seek advice from counsel.[19]
[18] Affidavit of Mr Pennock [44] ‑ [45].
[19] Affidavit of Mr Pennock [29].
For reasons not explained, the advice of counsel was not immediately obtained. Mr Pennock refers to correspondence with his solicitors regarding the briefing of a barrister to provide 'a further opinion'.[20] Because privilege has been claimed in relation to all the applicants' correspondence with their legal advisers, there is scant evidence before the court regarding the delay during this period.
[20] Affidavit of Mr Pennock [55].
A brief was provided to counsel on 28 February 2019, oral advice was apparently given in mid-March, and counsel's written advice was obtained on 27 March 2020.[21]
[21] Affidavit of Mr Pennock [57] ‑ [58].
Mr Pennock then sought further advice through new solicitors, on 24 April 2020.[22] Privilege having been asserted, the applicants do not explain why they sought a second opinion, other than by referring to 'inconsistency' in the opinions received.
[22] Affidavit of Mr Pennock [59].
Having obtained further advice on 10 June 2020, the applicants did not commence this action until 21 August 2020. In the interim, their solicitors corresponded with the City, including by giving notice of their intention to commence proceedings.[23]
[23] Affidavit of Mr Pennock, RCP 19.
In effect, except perhaps for the period in which the applicants sought to have the City revoke its decision, the delay is not explained.
I would be prepared to excuse the delay while the applicants pursued other possible means of challenging the decision. But by 17 June 2019, the applicants had been advised that the City could not revoke its earlier decision.
Further, I am not satisfied that the applicants have been entirely open about when they first sought legal advice. But they were legally advised by August 2019 at the latest. They needed to take legal action, but did not do so for another year.
The other party refers to the prejudice caused by the delay. He does not contend the prejudice is gross, but it is real. In particular, the other party demolished the dwelling that was on the land between 23 March and 3 April 2020. That is more than six months after the applicants sought legal advice; more than a year after the decision giving approval.
The court will not readily refuse relief where it finds that a decision was made without power. But there is a well-established residual discretion to refuse to issue a writ of certiorari even where a jurisdictional error is established. The grounds for exercise of the discretion include where an applicant party has been guilty of 'unwarrantable delay': R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, 400.
What amounts to unwarrantable delay must depend on the particular facts. In the present case, on the facts set out above, the delay is long and inadequately explained.
The other party did not progress the development with any speed after the demolition. Like many projects, it was affected by the COVID‑19 pandemic. But it is not for the other party to justify his delay.
There is no question of the City acting in bad faith or purporting to exercise a power or discretion which they knew was absent. The exchange of correspondence between officers of the City and the applicants discloses that the City officers believed the discretion to approve a non-complying development applied in the Special Character Areas. It is not an unreasonable construction of the Scheme, but it is not a construction I agree with.
In the circumstances, notwithstanding my findings on the absence of power to approve a non-complying development, I would refuse the relief sought by way of certiorari.
The remedy of a declaration is also at the discretion of the court. In the circumstances, where the approval will not be quashed, a formal declaration would be of no utility.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
12 FEBRUARY 2021