Rafferty & Ors and City Of Joondalup - [2006] WASAT 229

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: RAFFERTY & ORS and CITY OF JOONDALUP [2006] WASAT 229

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 21 JULY 2006

DELIVERED : 11 AUGUST 2006

FILE NO/S: DR 163 of 2006

BETWEEN: GREGORY MICHAEL RAFFERTY
EQUATION PTY LTD
PAULINE KAYE WILSON
PETER JOHN PEARD
STONEHAWK PTY LTD
SHANNONBRAE PTY LTD
RODNEY MICHAEL O'MARA
MARY ANNE O'MARA
BP AUSTRALIA LIMITED
Applicants
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Town planning – Structure plan – Local planning scheme states that the Council may require the preparation and presentation to it of a structure plan – Applicants purported to submit a structure plan without requirement by Council – Council resolved that "there is no occasion for making a decision concerning the need for a structure plan" – Preliminary issue – Jurisdiction – Whether there is a right of review of the Council's resolution – Whether Council resolution is a determination or decision made or a requirement imposed in respect of a structure plan in the exercise of a power contained in the scheme – Whether approval of structure plan is in the discretion of the Council – Structure plan not contemplated or provided for in scheme – Application for approval of structure plan is a legal nullity – Application for review dismissed as misconceived

Legislation:

City of Joondalup District Planning Scheme No 2 , cl 1.2, cl 1.6, cl 9.1.1, cl 9.1.1(a), cl 9.1.1(b), cl 9.1.1(c), cl 9.2, cl 9.3, cl 9.4.2, cl 9.8.3(b), cl 9.12.3, Sch 1, Sch 7, Pt 9
Planning and Development Act 2005 (WA), s 236, s 252(1), s 252(3), Pt 14

State Administrative Tribunal Act 2004 (WA), s 47(1)(a)

Result:

The applicants do not have a right of review
Proceedings dismissed

Category: B

Representation:

Counsel:

Applicants: Mr MJ Hardy
Respondent: Mr CG Colvin SC

Solicitors:

Applicants: Hardy Bowen
Respondent: Woodhouse Legal

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

WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

Landowners presented a structure plan, which would increase the residential density coding of their land from "R20" to "R80", for the approval of the local government. The local government had a discretion under the local planning scheme to require the preparation and presentation to it of a structure plan as a prerequisite to its support for rezoning, reclassification or subdivision of land or consideration of a development application. However, the local government had not required the structure plan in question and resolved that "there is no occasion for making a decision concerning the need for a structure plan".
When the landowners sought review of the resolution by the Tribunal, the local government argued that the landowners did not have a right to seek review.
The Tribunal determined that the landowners did not have a right to seek review of the resolution. The scheme did not contemplate or provide for the presentation for approval of a structure plan which had not been required by the local government. The landowners' structure plan and any determination of it is a legal nullity. The application for review was dismissed.

Preliminary issue

In December 2005, a town planning consultant acting on behalf of the owners of eight properties bounded by West Coast Drive, The Plaza, Drakes Walk and Raleigh Road, Sorrento (site) (applicants) prepared a structure plan in relation to the site and presented it to the City of Joondalup (City). In March 2006, the town planning consultant prepared a revised structure plan in relation to the site and presented it to the City (applicants' structure plan).
The applicants' structure plan proposes the retention of the "Residential" and "Commercial" zoning of the site under the City of Joondalup District Planning Scheme No 2 (LPS 2 or Scheme) and an increase in the applicable residential density coding from "R20" to "R80". The applicants' structure plan envisages mixed commercial/residential development on the site comprising nine commercial units and up to 57 residential units in two storey residential buildings on Drakes Walk and five storey commercial/residential buildings on West Coast Drive.
Clause 9.1.1 of LPS 2 states as follows:
"The Council may require the preparation and presentation to it of a Structure Plan as a prerequisite to:
(a)the Council's support for a proposal to rezone or reclassify land in the District;
(b)the Council's support for an application to subdivide or amalgamate lots; or
(c)the Council's consideration of an application for Planning Approval."
It is common ground that the City has not required the preparation and presentation to it of the applicants' structure plan.
On 26 April 2006, the City resolved to advise the applicants' town planning consultant as follows:
"that in regard to the structure plan submitted over [the site]:
1.That Council considers there is no occasion for making a decision concerning the need for a structure plan.
2.That the proper course of action is to seek an amendment for the District Planning Scheme No 2.
3.The Council will reconsider the ultimate desired zoning and form of development of the land through the development of its forthcoming review of the District Planning Scheme No 2."
The applicants commenced these proceedings, purportedly pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the resolution of the City made on 26 April 2006. At the initial directions hearing, the City raised a preliminary issue as to whether the applicants have a right of review of the resolution. This preliminary issue was listed for determination before me.

Is there a right of review?

Mr MJ Hardy, counsel for the applicants, submits that his clients have a right to seek review of the City's resolution under either or both of cl 9.12 of LPS 2 and s 252(1) of the PD Act. Mr Hardy submits that the resolution is, in substance, a refusal of his clients' application for approval of the applicants' structure plan. In contrast, Mr CG Colvin SC, counsel for the City, submits that the resolution reflects a failure by the City to make a decision concerning the applicants' structure plan.
It is unnecessary to decide whether the City's resolution, that there is no occasion for making a decision concerning the need for a structure plan, is, in substance, a refusal of the applicants' structure plan, as Mr Hardy contends, or reflective of a failure to make a decision concerning the structure plan, as Mr Colvin contends. On either view, neither cl 9.12 of LPS 2 nor s 252(1) of the PD Act relevantly confers a right of review.
Clause 9.12.3 of LPS 2 states as follows:
"If the Council or the Commission makes a determination or decision or imposes a requirement in respect of a Structure Plan in the exercise of a power contained in this Part and the proponent of the Structure Plan is dissatisfied with such determination or decision, the proponent may appeal to the Minister or the Town Planning Appeal Tribunal against the decision, determination or requirement in accordance with Part V of the [Town Planning and Development Act 1928 (WA) (TPD Act)]." (Emphasis added.)
Under s 236 of the PD Act, the reference in cl 9.12.3 of LPS 2 to a right to appeal to the Minister or the Town Planning Appeal Tribunal in accordance with Pt V of the TPD Act is to be taken as a reference to a right to seek a review by the State Administrative Tribunal (Tribunal) in accordance with Pt 14 of the PD Act.
Section 252(1) of the PD Act states as follows:
"Subject to subsection (3), if –
(a)under a local planning scheme or a region planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority;
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has –
(i)refused the application; or
(ii)granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision." (Emphasis added.)
Section 252(3) of the PD Act provides that subsection (1) does not affect the operation of a right given or taken to be given by a planning scheme to apply for a review of a decision, but where rights are given or taken to be given by a planning scheme and under subsection (1), the exercise of one of those rights extinguishes the other right to apply for a review of the same decision. As noted earlier, the applicants purported to commence these proceedings under s 252(1) of the PD Act. If that section conferred a right to seek review in this case, the exercise of that right would extinguish rights given or taken to be given by LPS 2.
Mr Hardy submits that cl 9.1.1 of LPS 2 (see [6] above) merely provides for a structure plan as an element of the City's decision-making process and ought not to be construed as the sole basis upon which structure plans, which otherwise conform to the provisions of cl 9.3 and Sch 7 of LPS 2, can be formulated and submitted for the City's approval under the Scheme. Mr Hardy submits, and Mr Colvin does not contest, that the applicants' structure plan conforms to the definition of the term "Structure Plan" in Sch 1 and includes the matters which are required by cl 9.3 and Sch 7 of the Scheme to be addressed by a structure plan. The term "Structure Plan" is defined in Sch 1 to mean "a document consisting of maps and text making provision for the subdivision and/or development of a specific area, and when certified under Part 9 of the Scheme provides a policy framework for such future subdivision and development". Clause 9.3 requires that a structure plan shall have regard to or include those matters listed in Sch 7 that are appropriate, and states that, without limiting the generality of Sch 7, the City may require any other matter to be included in the structure plan. Schedule 7 requires that a structure plan include any of the 29 specified categories of matters that the City considers appropriate in relation to the nature of the structure plan.
Mr Hardy also submits, and Mr Colvin does not contest, that, under cl 9.1.1, the City and the Tribunal on review has discretion to dispense with the necessity for a structure plan as a prerequisite to one or more of the matters set out in par (a), (b) or (c). Mr Hardy submits that, conversely, nothing in Pt 9 of LPS 2 has the necessary effect that a structure plan which is otherwise compliant with cl 9.3 and Sch 7 can only be brought into existence for the purposes of the Scheme as a consequence of the exercise of the discretion conferred by cl 9.1.1.
The Tribunal considers that the Scheme does not contemplate or provide for the preparation, presentation or approval of a structure plan other than a structure plan which is required by the City as a prerequisite to one or more of the matters set out in cl 9.1.1 par (a), (b) or (c). Other than cl 9.1.1, there is no provision of the Scheme which requires the preparation and presentation for approval of a structure plan. The provisions of Pt 9 which follow cl 9.1.1 simply facilitate the preparation, submission, public notification, consideration, approval and operation of structure plans which the City has required under cl 9.1.1. Conformity with the definition of a "Structure Plan" and inclusion of the matters listed in Sch 7 cannot obviate the fundamental need for the City's requirement for the preparation and presentation to it of a structure plan under cl 9.1.1.
This interpretation is consistent with the nature and purpose of a structure plan and the role of the City under the Scheme.
A structure plan is a strategic planning instrument which makes provision for subdivision and/or development. Clause 9.8.3(b) of the Scheme states that a structure plan "may make provision for any standard or requirement applicable to zones or R Codings to be varied, and the standard or requirement varied in that way shall apply within the area of the [applicants' structure plan] … as if it was a variation incorporated in this Scheme".
The objective of LPS 2, in relation to urban development, is "to promote planning, management and strategic control of development in a rational and systematic manner, taking into account the needs and aspirations of residents, and the environmental capacity of the area": cl 1.6. The authority responsible for carrying out the Scheme is the Council of the City: cl 1.2. Moreover, it is apparent from:
(i)clause 9.2, which states that the City is to determine the area to be covered by a structure plan required under cl 9.1;
(ii)Schedule 7, which states that structure plans shall include any of the 29 specified categories of matters that the City considers appropriate in relation to the nature of the structure plan; and
(iii)clause 9.3, which states that the City may require any other matter to be included in a structure plan,
that the City, rather than the proponent of a structure plan, determines the parameters of the strategic planning.
Given that a structure plan is a strategic planning instrument which can vary standards and requirements under the Scheme, the urban development object of the Scheme, to promote planning, management and strategic control of development in a rational and systematic manner, and the designation of the City as the authority responsible for carrying out the Scheme in general and determining the parameters of strategic planning in the form of structure plans in particular, it could not be the intention of the Scheme to allow landowners to prepare and present to the City for approval structure plans which have not been required by the City. If this were the case, it would potentially lead to sporadic and uncoordinated, rather than rational and systematic, planning, management and strategic control of development, contrary to the objective of the Scheme.
Moreover, the Tribunal does not accept the submission referred to at [17] above that the City's discretion under cl 9.1.1 as to whether to require the preparation and presentation to it of a structure plan results in the converse conclusion that nothing in Pt 9 of the Scheme has the necessary effect of limiting structure plans to those required by the City. The fact that there is a discretion not to require a structure plan in the circumstances contemplated by cl 9.1.1 does not, as a matter of law or logic, mean that the preparation and presentation of a structure plan in other circumstances is contemplated by the provisions of Pt 9.
It follows that the applicants' preparation and presentation to the City for its approval under the Scheme of a structure plan which has not been required by the City as a prerequisite to one or more of the matters set out in par (a), (b) or (c) of cl 9.1.1, is not contemplated or provided for by the Scheme, and that the applicants' structure plan is a legal nullity: WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266 at [30]. A purported approval or refusal by the City of the applicants' structure plan would also be a nullity.
In consequence, neither cl 9.12.3 of LPS 2 nor s 252(1) of the PD Act confers a right of review of the City's resolution. This is the case whether the City's resolution is, in substance, a refusal of the applicants' application for approval of the applicants' structure plan, as the applicants contend, or reflective of of a failure to make a decision concerning the structure plan, as the City contends.
Clause 9.12.3 does not confer a right of review in the circumstances of this case, as neither a decision to refuse the applicants' structure plan nor a decision not to make a decision in relation to it is a decision made "in the exercise of a power contained in [Pt 9]", as is required by the subclause, because the applicants' structure plan is not contemplated or provided for in Pt 9. Moreover, if the resolution is a refusal of the applicants' structure plan, the decision, which is a legal nullity, cannot found a right of review. As William Shakespeare wrote, "[n]othing will come of nothing" (King Lear, Act 1, scene 1).
Furthermore, s 252(1) of the PD Act does not confer a right of review in the circumstances of this case, as the grant of approval to the applicants' structure plan is not "in the discretion of" the City, as is required by par (a) of the subsection. The City does not have discretion to approve an application under the Scheme which is not contemplated or provided for by the Scheme and purported approval of which would be a legal nullity.
Further, if the resolution simply reflects a failure to make a decision concerning the structure plan, the City has not refused the application or granted it subject to a condition, as is required by par (c) of s 252(1). Although cl 9.4.2 of LPS 2 provides for a deemed refusal where the City has not determined a structure plan, which accords with cl 9.3, within 60 days of its receipt, this provision does not apply in the case of a structure plan which the City has not required under cl 9.1.1. The purported making of an application for approval under a planning scheme which is not contemplated or provided for in the Scheme cannot found a deemed refusal. As noted earlier, nothing will come of nothing.

Conclusion

The applicants do not have a right of review to the Tribunal from the resolution of the City made on 26 April 2006. The proceedings must, therefore, be dismissed as misconceived under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).

Order

The Tribunal makes the following order:
1.The application for review is dismissed.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER