Re Capobianco;

[1999] WASCA 218

RE CAPOBIANCO; EX PARTE CASTELLI [1999] WASCA 218

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 218
Court:	THE FULL COURT (WA)
Case No:	CIV:2053/1998	Heard:	17 MAY 1999
Coram:	MALCOLM CJ IPP J STEYTLER J	Delivered:	22/10/99
No of pages:	28	Judgment Part:	1 of 1
Result:	Order nisi discharged
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Parties:	ADAM CASTELLI TONY CAPOBIANCO (PRINCIPAL BUILDING SURVEYOR OF THE CITY OF MELVILLE) CITY OF MELVILLE DOUGLAS ALLAN BROOKS ROMA BROOKS
Catchwords:	Writ of prohibition Residential building Whether building three storey house required approval pursuant to building and planning regimes under Metropolitan Regional Scheme or City Scheme Whether land abutted land reserved pursuant to Scheme Whether building licence could be issued without Commission approval or planning consent Application dismissed
Legislation:	Local Government (Miscellaneous Provisions) Act 1960, s 374 Town Planning and Development Act 1928, s 7 Western Australian Planning Commission Act 1985, s 20 Metropolitan Region Town Planning Scheme Act 1959
Case References:	Baddeley v Gingell (1847) 1 Exch 319; 154 ER 136 Ex parte Bone; Robins and Shire of Greenough [1990] WAR 94 Ex parte Helena Valley/Boya Association (Inc) & Ors; State Planning Commission and Beggs [1989] 2 WAR 422 Krasey v St Boniface (1966) 58 WWR 219 Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 Marshall v Watson (1972) 124 CLR 640 Ministry of Housing & Local Government v Sharp [1970] 2 QB 223 Richards v Cincinatti (City) (1877) 31 Ohio St R 506 Seaford Court Estates Ltd v Asher [1949] 2 KB 481 Wakefield Local Board v Lee (1876) 1 Ex D 336 Barnard v National Dock Labour Board [1953] 2 QB 18 Barnett v Covell (1903) 68 JP 93 Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 Conigrave v Tanner [1978] WAR 225 Day v Pinglen Pty Ltd (1981) 148 CLR 289 Dickinson v Perrignon [1973] 1 NSWLR 72 Hornsby Shire Council v Malcolm, unreported; SCt NSW; No bc8600427; 23 December 1986 Maunsell v Olins [1975] AC 373 Pioneer Concrete v Brisbane City Council (1980) 145 CLR 485 R v City of Brunswick; Ex parte Ampol Petroleum [1960] VR 330 R v South Eastern Railway Co (1910) 74 JP 137 University of Western Australia v City of Subiaco (1980) 52 LGRA 360

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE CAPOBIANCO; EX PARTE CASTELLI [1999] WASCA 218 CORAM : MALCOLM CJ

IPP J
STEYTLER J

HEARD : 17 MAY 1999 DELIVERED : 22 OCTOBER 1999 FILE NO/S : CIV 2053 of 1998 MATTER : An application for a Writ of Prohibition against Tony Capobianco, Principal Building Surveyor of the City of Melville

EX PARTE

ADAM CASTELLI
Applicant

AND

TONY CAPOBIANCO (PRINCIPAL BUILDING SURVEYOR OF THE CITY OF MELVILLE)
First Respondent

CITY OF MELVILLE
Second Respondent

DOUGLAS ALLAN BROOKS
ROMA BROOKS
Third Respondents

(Page 2)

Catchwords:

Writ of prohibition - Residential building - Whether building three storey house required approval pursuant to building and planning regimes under Metropolitan Regional Scheme or City Scheme - Whether land abutted land reserved pursuant to Scheme - Whether building licence could be issued without Commission approval or planning consent - Application dismissed

Legislation:

Local Government (Miscellaneous Provisions) Act 1960, s 374

Town Planning and Development Act 1928, s 7
Western Australian Planning Commission Act 1985, s 20
Metropolitan Region Town Planning Scheme Act 1959

Result:

Order nisi discharged

Representation:

Counsel:

Applicant : Professor L A Stein & Mr A J Carr
First Respondent : Mr D W McLeod
Second Respondent : Mr D W McLeod
Third Respondents : Mr C B Edmonds & Mr R E Sandover

Solicitors:

Applicant : Freehill Hollingdale & Page
First Respondent : McLeod & Co
Second Respondent : McLeod & Co
Third Respondents : Jackson McDonald

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

Baddeley v Gingell (1847) 1 Exch 319; 154 ER 136
Ex parte Bone; Robins and Shire of Greenough [1990] WAR 94
Ex parte Helena Valley/Boya Association (Inc) & Ors; State Planning Commission and Beggs [1989] 2 WAR 422


(Page 3)

Krasey v St Boniface (1966) 58 WWR 219
Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226
Marshall v Watson (1972) 124 CLR 640
Ministry of Housing & Local Government v Sharp [1970] 2 QB 223
Richards v Cincinatti (City) (1877) 31 Ohio St R 506
Seaford Court Estates Ltd v Asher [1949] 2 KB 481
Wakefield Local Board v Lee (1876) 1 Ex D 336

Case(s) also cited:

Barnard v National Dock Labour Board [1953] 2 QB 18
Barnett v Covell (1903) 68 JP 93
Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389
Conigrave v Tanner [1978] WAR 225
Day v Pinglen Pty Ltd (1981) 148 CLR 289
Dickinson v Perrignon [1973] 1 NSWLR 72
Hornsby Shire Council v Malcolm, unreported; SCt NSW; No bc8600427; 23 December 1986
Maunsell v Olins [1975] AC 373
Pioneer Concrete v Brisbane City Council (1980) 145 CLR 485
R v City of Brunswick; Ex parte Ampol Petroleum [1960] VR 330
R v South Eastern Railway Co (1910) 74 JP 137
University of Western Australia v City of Subiaco (1980) 52 LGRA 360

(Page 4)

MALCOLM CJ:

The Order Nisi

1 This is the return of an order nisi for a writ of prohibition made by Parker J on 25 September 1998 by which the first respondent, the Principal Building Surveyor of the City of Melville, was ordered to show cause before this Court why a writ of prohibition should not be issued against him prohibiting him from approving plans and specifications and issuing a building licence pursuant to s 374 of the Local Government (Miscellaneous Provisions) Act 1960 ("the LGMP Act") for construction of a building at Lot 17 The Strand, Applecross in the City of Melville. The order nisi was made on the following grounds:

(a) The applicant ("Mr Castelli") is the owner of land situated at Lot 18 Tweeddale Road, Applecross in the City of Melville and the views of Mr Castelli would be affected by a proposed dwelling at Lot 17 The Strand, Applecross in the City of Melville ("Lot 17");

(b) The first respondent ("the Building Surveyor") cannot issue a building licence under the LGMP Act for the proposed building unless the plans and specifications conform to all schemes in force;

(c) By cl 5.1.2 of the City of Melville Town Planning Scheme No 3 ("the City's Scheme") the person proposing to develop on the land must apply for planning consent as the land is "abutting land reserved" by the Metropolitan Region Scheme;

(d) No planning consent has been applied for by the respondent [sic the third respondent] ("Mr and Mrs Brooks"); and

(e) It would be an error of law for the Building Surveyor to issue approval of the plans and specifications for the proposed building without an application being made for planning consent.

2 At the same time as making the order nisi, Parker J ordered that on the lodgment of, and subject to Mr Castelli first lodging an undertaking as to damages in favour of Mr and Mrs Brooks, in the form with the necessary amendments usually used for interlocutory injunctions, the Building Surveyor be stayed from approving the plans and specifications or from issuing a building licence for construction of a building at Lot 17 The Strand, Applecross in the City of Melville until the determination of this application before the Full Court or earlier order. There was liberty to apply generally on notice to both the Building Surveyor and Mr

(Page 5)

and Mrs Brooks. It should be noted that prior to the hearing of the application of the order nisi the City of Melville and Mr and Mrs Brooks were added as parties to the proceedings.

Background to the Order Nisi

3 Mr Castelli is the owner of land being Lot 18 Tweeddale Road, Applecross. The rear or northern boundary of this land adjoins the rear boundary of Lot 17 The Strand, Applecross. Mr Castelli's land is higher in elevation than Lot 17. There is on Lot 18 a three storey house from which Mr Castelli enjoys expansive views of the Swan River to the City of Perth over the roof of the single storey house which is currently erected on Lot 17. Lot 17 also enjoys uninterrupted views of the river to the City across The Strand and the grassed riverside reserve which lies between The Strand and the river's edge. Lot 17 is zoned "residential" under the City's Scheme and is zoned "urban" under the Metropolitan Region Scheme. The riverside reserve land comprises two different reserves. One is a wide expanse stretching from the northern boundary of the road reserve of The Strand most of the way to the river's edge. This is a local open space reserve pursuant to the City's Scheme. Between that reserve and the edge of the river there is a relatively narrow band of land of varying width, which is a parks and recreation reserve pursuant to the Metropolitan Region Scheme. The two reserves are contiguous.

4 Mr and Mrs Brooks wish to erect a three storey residence on Lot 17. It appears that Lot 17 is the only lot facing The Strand in the immediate locality which is not subject to a restrictive covenant in favour of the adjoining Tweeddale Road lot to the rear. The remaining lots fronting The Strand to the west are each subject to a restrictive covenant having the effect of limiting the height to which buildings may be erected on The Strand frontage lot. At the same time, the City has not, except in relation to boundary set back, imposed any relevant height restrictions in this locality. This has enabled the owners of many of the lots facing Tweeddale Road to take full advantage of the absence of any such restrictions.

5 On 14 January 1998 the City refused to approve an application on behalf of Mr and Mrs Brooks for planning approval for a three storey residential development on Lot 17. The grounds for the refusal were non-compliance with the City's policies regarding height limitations, in relation to boundary set back, floor levels and visual privacy as well as the impact of the proposed development on the amenity of the area. Mr and Mrs Brooks appealed to the Hon Minister for Planning against this refusal

(Page 6)

pursuant to the provisions of the Town Planning and Development Act 1928. Extensive and detailed submissions were put to the Minister on behalf of Mr Castelli and other neighbours in opposition to the appeal which were supported by expert legal and planning submissions.

6 By letter dated 2 July 1998 the Minister dismissed the appeal because detailed aspects of the design for the proposed three storey house did not comply with the Residential Planning Code with respect to the boundary set back requirements on the western side of Lot 17. At the same time, the Minister expressed the view that under the City's Scheme, the proposal for the development of a detached residence on a single lot was exempt from any planning approval. This in turn led the Minister to express the opinion that, if a design was prepared for the Lot 17 development which complied with the requirements of the Residential Planning Code, it would not be necessary to obtain any planning approval. It would only be necessary to obtain a building licence.

7 When the matter was before Parker J the evidence was that Mr and Mrs Brooks had acted on the advice of the Minister and had submitted plans for the proposed development to the Building Surveyor and that, subject only to the City obtaining legal advice confirming the view expressed by the Minister, the Building Surveyor was or maybe about to issue a building licence for the three storey development on Lot 17. It was on this basis that Parker J restrained the approval of the plans or the issue of a building licence.

Declaration

8 It was not suggested that Mr Castelli did not have standing to seek a writ of prohibition or a declaration in these proceedings: Ex parte Helena Valley/Boya Association (Inc) & Ors; State Planning Commission and Beggs [1989] 2 WAR 422; Ex parte Bone; Robins and Shire of Greenough [1990] WAR 94. During the course of the proceedings counsel for Mr Castelli sought and obtained leave to amend the originating motion to claim a declaration that it is necessary under cl 5.1.2 of the City's Scheme for Mr and Mrs Brooks to make an application to the City for planning consent, and that such planning consent be granted prior to the issuing of a building licence. None of the respondents opposed the application. Counsel for Mr and Mrs Brooks submitted that if the Court made such a declaration, it would not be necessary to consider the precise status of what the Building Surveyor had done or not done, as it was accepted that it would consequently be necessary to make an application for planning consent.

(Page 7)

Relevant Facts

9 Immediately to the north of Lot 17 there are four lots on the opposite side of The Strand between Gairloch Street to the east and Ardross Street to the west. The Strand, which separates Lot 17 and the four lots on the other side of the road is itself reserved for "Local Roads" under the City's Scheme. The four lots are reserved under the City's Scheme for "Local Open Space" together with a substantial area of additional land to the north. The additional land comprised in the Local Open Space under the City's Scheme is known as the "Jeff Joseph Reserve" which is designated Reserve 27327. Between the Jeff Joseph Reserve and the river lies the reserve under the Metropolitan Region Scheme. The four lots immediately fronting the north side of The Strand are not reserved under the Metropolitan Region Scheme but are zoned "urban". The balance of the land between the Local Open Space and the river is reserved under the Metropolitan Region Scheme for "Parks and Recreation".

10 In October 1996 Mr and Mrs Brooks made application for planning consent under the City's Scheme to build a three storey house on Lot 17. This application was refused in December 1996. An appeal to the Hon Minister for Planning was dismissed on the basis that what was proposed was in conflict with the height limitation policy of the City.

11 In December 1997 a further application was made to the City for planning consent which was again refused for the following reasons:

1. Non-compliance with Planning Policy 17(2) - Height Limitations.

2. Non-compliance with Building Policy 10(1) - Floor levels.

3. Non-compliance with cl 5.1.4 Parts 1, 3, 5, 7, 9 of the City's Scheme with regard to the impact on the amenity of the area.

4. Non-compliance with Planning Policy (31) - Visual Privacy.

12 There was an appeal from the second refusal to the Minister for Planning. It was in the context of this appeal that the Minister made the comments to which I have referred regarding the submission of a design of a dwelling which complied with the requirements of the Residential Planning Codes. The proposal then being considered did not comply with set back requirements. As to this, the Minister said in his letter dated 2 July 1998:

"I have examined the matter with respect to the requirement for the variation of set backs from the boundary taking into account the overall size of the building and its impact upon

(Page 8)

neighbouring properties. The dwelling proposed by your clients is large and will undoubtedly have a considerable impact on surrounding properties. It seems inappropriate therefore, that there should be any concessions granted with respect to set backs from side boundaries to ensure that the impact of the development is within the framework of the expectations of the Codes.

I have decided, therefore, that your appeal should be dismissed but you will understand from earlier comments made in this letter that if you prepare a design of a dwelling which complies with the requirements of the Residential Planning Codes then it will not be necessary for you to obtain planning approval but merely to apply for a building licence."

13 In July 1998 Mr and Mrs Brooks made an application for a building licence. The application was made under s 374(1) of the LGMP Act which prohibits the laying out, commencement or proceeding with a building on land in a district by any person:

"… until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence in the prescribed form and on payment of the prescribed fee, a copy of, and on payment of the prescribed fee, a copy of the specifications of, a plan showing clearly, the building or buildings proposed to be built … and unless he complies with the conditions, if any, that are specified in the licence."

14 Section 374(1b) provides for a local authority to delegate the authority to approve or refuse to approve plans and specifications to a person appointed to the office of building surveyor. Section 374(1b) also provides that:

"… where a plan and specifications so submitted conform to -

(a) all local laws in force in the relevant district or part of a district in respect of building matters, and the local government's pre-determined policy in respect of building matters; and

(b) all local laws and schemes in force in the relevant district or part of a district in respect of town and regional planning matters, and the local government's

(Page 9)

pre-determined policy in respect of town and regional planning matters,

the building surveyor shall not refuse to approve that plan or those specifications without first obtaining the consent of the local government."

15 Section 374(1c) provides that a delegation under s 374(1b) does not prevent the exercise of a power or a performance of a function by the local government. Section 374(1d) provides that a power or function delegated and exercised or performed by the delegate shall be taken to have been exercised by the local government.

16 The procedure adopted by the City involved a two-step process. The first required that the plans be approved by the local authority or the Building Surveyor who is delegated that power. Secondly, the builder must then apply under the relevant regulations for a building licence. The amended plans were considered by the Building Surveyor on 21 July 1998. In accordance with reg 18 of the Building Regulations 1989 ("the Regulations") the Building Surveyor granted preliminary approval of the amended plans and marked them accordingly. The City later received a new application for a building licence on behalf of Mr and Mrs Brooks on 4 September 1998. The plans lodged with that application were assessed by a Mr Bruce Green, another building surveyor of the City, who informed the Building Surveyor that they were in accordance with the plans which had been given preliminary approval. On that basis the Building Surveyor deposed in his affidavit sworn 11 March 1999 that he was prepared to issue a building licence for the plans as so amended.

The Need for the City's Planning Consent

17 The primary contention of counsel for Mr Castelli was that no building licence can be issued unless and until an application for planning consent is made and approved under cl 5.1.2 of the City's Scheme. The City's Scheme was originally gazetted on 31 March 1985. The Court was supplied with a copy of a Consolidated Version of the Scheme as of 3 August 1998. The Court was invited to make its decision on the basis of that text. No objection to that course being followed was made.

18 Clause 5.1.2 is contained in Part V of the Scheme under the heading "DEVELOPMENT CONTROL" and the sub-heading "PLANNING APPROVAL PROCEDURE". Clause 5.1.1 provides that:

(Page 10)

"A person proposing to develop land not referred to in Clause 5.1.2 with any form of development other than a detached house and ancillary development thereto shall, before making application for a building licence, or commencing work, make application to the Council for Council's planning consent.

Notwithstanding that a single house does not require the prior planning approval of the Council pursuant to the Scheme, any person who wishes the Council to vary any particular provision of the Residential Planning Codes, at the time of lodging an application for a building licence or earlier, shall apply for planning approval for such development. The Council may approve the variation with or without conditions or may refuse to approve the variation. The Council shall, before granting its approval, satisfy itself that:

(a) the variation requested is one which the Council has the power to approve; and

(b) approval of that variation would not compromise the objectives of the R codes."

19 The existence of this provision explains why it was necessary to obtain planning consent if it was proposed to vary any particular provision of the Residential Planning Codes.

20 It is in this context that cl 5.1.2 provides that:

"A person proposing to develop land reserved by or abutting land reserved by or (where by resolution of the Metropolitan Region Scheme and where notice is given in the 'Government Gazette' areas have been defined as having concern to the Metropolitan Region Planning Authority) shall make application on the form prescribed hereunder for Council planning consent. The form prescribed by the Metropolitan Region Scheme shall be referred by the Council to the Metropolitan Region Planning Authority."

21 The primary issue between the parties concerned the proper interpretation of cl 5.1.2, the drafting of which clearly left a great deal to be desired. Counsel for Mr Castelli submitted that cl 5.1.2 required an application to be made by Mr and Mrs Brooks to the City for planning consent, and unless and until such consent was forthcoming, no building licence could be issued. It was submitted that the proposed development

(Page 11)

was not within cl 5.1.1 because the subject land was land referred to in cl 5.1.2. When one turns to cl 5.1.2 it is apparent that some words have been omitted after the word "by" where it twice appears in the phrase "land reserved by or abutting land reserved by", or at least after the second word "by" in that phrase. I will return to this shortly.

22 By s 7(3) of the Town Planning and Development Act 1928 the City's Scheme, when approved of by the Minister and published in the Government Gazette:

"… shall have full force and effect as if it were enacted by this Act."

23 It follows that the City's Scheme should be interpreted as if it were enacted as part of the Town Planning and Development Act.

24 The reference in cl 5.1.2 to a resolution of the Metropolitan Region Planning Authority, now the Western Australian Planning Commission established by the Western Australian Planning Commission Act 1985 ("the Commission"), is a reference to a resolution pursuant to cl 32 of the Metropolitan Region Scheme which at all material times provided that:

"The Commission may by resolution, a notice of which shall be published in the Government Gazette and a copy served on the responsible authority as soon as practicable after the resolution is passed by the Commission -

(1) define areas in respect of which the proposals contained in this Scheme which relate to the areas are to be reviewed by the Commission and require that applications for all or certain classes of development on land in those areas shall be referred to the Commission for determination;

(2) require that a local authority forward any such particular application or application in respect of a specified class of development on land in the area, to the Commission for its determination."

25 Clause 5.1.2 of the City's Scheme, as it appears in the Consolidated Version as at 3 August 1998, is in the same terms as it was when it was first published in the Government Gazette dated 29 March 1985, after having been approved by the Minister under s 7 of the Town Planning and Development Act. It is extraordinary that the omission of the relevant

(Page 12)

words after "by" where it appeared in the opening words of the clause was not noticed in either the drafting or the process of adoption and approval of the City's Scheme or, apparently, at any time since.

26 Professor Stein submitted that the relevant part of cl 5.1.2 should be read or interpreted as if the words "this Scheme" appeared after the word "by" secondly appearing in the clause. The relevant passage would then read:

"A person proposing to develop land reserved by or abutting land reserved by this Scheme or …"

27 Alternatively, it was also possible that the words "this Scheme" should be regarded as appearing after each of the words "by". The relevant passage would then read:

"A person proposing to develop land reserved by this Scheme or abutting land reserved by this Scheme or …"

28 The question raised by this submission is whether, given that the scheme took effect as if enacted in the Act, it would be consistent with established principles of statutory interpretation to "fill the gap" by reading into cl 5.1.2 the words "this Scheme" after the word "by" where secondly appearing or in each case where that word relevantly appears in cl 5.1.2.

29 In either of the proposed interpretations of cl 5.1.2 contended for by Professor Stein, an application for Council planning consent would be required where the proposed development was:

(a) on land reserved by the City's Scheme;

(b) on land abutting land reserved by the City's Scheme; or

(c) on land in an area the subject of a resolution under cl 32 of the Metropolitan Region Scheme.

30 In the first two cases application was required to be made to the City on "the form prescribed hereunder for Council Planning consent". In the third case the form prescribed by the Metropolitan Region Scheme was the relevant form which would be referred by the Council to the Metropolitan Regional Planning Authority (now the State Planning Commission).

31 No form was "prescribed hereunder" specifically for the purposes of the first two applications in pars (a) and (b) above. The only form prescribed was Form CM 1 referred to in cl 5.1.3 for application for

(Page 13)

planning approval under cl 5.1.1. Form CM 1 in Appendix 2 of the City's Scheme is a general form of "Application for Council Planning Approval to Proposed Development". There is no other form prescribed. In my opinion it is necessarily to be implied that Form CM 1 was the form prescribed for the purposes of cl 5.1.2 as well as cl 5.1.1.

32 Professor Stein submitted that Lot 17 was land abutting land reserved by the City's Scheme, namely, The Strand which was land reserved for "Local Roads" as well as the land reserved as "Local Open Space" on the north side of The Strand. Further, it was submitted that Lot 17 was also land abutting the Metropolitan Region Reserve to the north of the Local Open Space.

33 Clause 13 of the Metropolitan Region Scheme provides that except as provided in Division 2 of Part I:

"… 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."

34 This provision was contained in the Metropolitan Region Scheme in 1985 when the City's Scheme was adopted, save that the reference was to the Authority rather than the Commission. By cl 3 the term "reserved land" was defined as, "land reserved for a purpose under the Metropolitan Region Scheme itself". The term "development" included the erection of a single dwelling. By cl 28 an application in Form 1 of the Scheme was required to be submitted to the local authority. By cl 29(1)(a) the local authority was required to forward the application to the Authority (now the Commission). Clause 29 (3) provided that where a local authority forwarded an application to the Authority, it may make recommendations for consideration by the Authority in respect of the application within 42 days of the date of receipt of the application.

35 In 1997, by notice under s 20 of the Western Australian Planning Commission Act, authority to approve applications for approval to commence development on land zoned under Part III of the Metropolitan Region Scheme was delegated by the Commission to a local government as follows:

"(i) except where the land is subject to a resolution under Clause 32 of the MRS; or

(Page 14)

(ii) except where the land is subject to the declaration of a planning control area under section 35C of the Metropolitan Region Town Planning Scheme Act 1959; or

(iii) except where that land is partly within the management area within the meaning of the Swan River Trust Act 1988 or is outside the management area but abuts waters within the management area; or

(iv) except where the Local government is of the opinion that the application should be determined by the Commission on the grounds that the proposal is of State or regional importance or is in the public interest; or

(v) except to the extent necessary to give effect to the provisions of clauses 3, 4, and 5 of this notice."

36 In respect of land abutting a reserve under the Metropolitan Region Scheme, the position in 1985 was that such land was zoned under Part III. Clause 24(1) provided that approval of the "responsible authority" was required for the development of land zoned under Part III. Clause 26 provided that where the local authority had prepared a Town Planning Scheme in accordance with the Metropolitan Town Planning Scheme Act 1959, an approval given by the local authority to develop land comprised in the Scheme which was zoned under Part III "shall be deemed to be an approval under this Scheme".

37 As notified in the Government Gazette dated 24 June 1983, the Authority adopted a resolution under cl 32 of the Metropolitan Region Scheme that every application to commence development on land zoned under Part III of the Scheme and abutting a reserve under the Scheme should be referred by the local authority to the Authority for determination. This applied even if the development was for a single dwelling house. It follows that in such a case cl 5.1.2 of the City's Scheme required the application to be forwarded by the City to the Authority. By a resolution, notice of which was published in the Government Gazette dated 18 March 1987, the resolution published on 24 June 1983 was revoked. In the meantime, by a resolution published in the Government Gazette dated 16 December 1985 delegating authority to local authorities, the power of the Commission to determine applications for approval to commence development under the Metropolitan Region Scheme was modified. Clause 4 of the resolution provided that, subject to cl 6, all

(Page 15)

applications falling within specified classes be forwarded by the local authority to the Commission for determination. These included applications for land abutting regional roads of specified classifications and:

"All applications for land which abut (sic abuts) land reserved under the Scheme for purposes other than 'Controlled Access Highway', 'Other Major Highway', and 'Important Regional Road'."

38 Clause 6 exempted certain applications from cl 4. The exemptions included in cl 6(a) applications for the development of not more than four dwellings which, in the opinion of the local authority, "will not prejudice or otherwise adversely affect the purpose and function of the abutting reservation".

39 The delegation published in the Government Gazette on 18 March 1987 and the previous delegation published on 16 December 1985 were cancelled by resolution published in the Government Gazette dated 8 June 1988. A new notice of delegation was substituted referring to specified local authorities, including the City. The delegation applied to land zoned under Part III of the Metropolitan Region Scheme and relevantly:

"(i) except where the land is subject to a resolution under Clause 32 of the Scheme;

(ii) except where the land is subject to a declaration under Section 35C of the Metropolitan Region Town Planning Scheme Act 1959 (as amended); and

(iii) except to the extent necessary to give effect to the provisions of Clauses 21 and 5 of this notice."

40 Clause 4 of the resolution provided that:

"Subject to the provisions of Clause 6 of this resolution, all applications which fall within any of the classes hereinafter described, shall be forwarded by the Local Authority to the Commission for determination:

…

(d) Any application for land abutting land reserved under the Scheme for purposes other than 'Controlled Access

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Highway', 'Other Major Highway' or 'Important Regional Road'."

41 Clause 6(a) provided for an exception similar to the exception in cl 6(a) of the 1987 resolution, as well as two further exceptions, namely:

"(b) Applications for development that are prohibited by any provision of a town planning scheme and which, for that reason, are refused by the local authority.

(c) Applications for development which are refused by the local authority using discretionary power contained in a town planning scheme."

42 By a resolution, notice of which was published in the Government Gazette dated 2 December 1992, the delegation published in the Government Gazette dated 8 June 1988 was revoked. A new delegation was substituted by cl 8 which had the effect that applications for development on land abutting land reserved for purposes other than regional roads had to be referred to the responsible public authority. In the case of land reserved for Parks and Recreation "not vested or zoned by another public authority", the application should be referred to the Department of Planning and Urban Development. Comments were required from the public authority or the Department within 30 days of receipt of the application and the local authority was required to have regard to "such comments". Clause 12 provided that nothing in the notice should be construed as restricting the local authority from refusing an application prohibited by its town planning scheme or using any discretionary power in its town planning scheme to refuse an application.

43 The 1992 resolution was in force at all material times. Professor Stein submitted that the result was that it is still necessary for an application in respect of a single dwelling house and land abutting a reserve under the Metropolitan Region Scheme to be made to the City under cl 5.1.1 of the City's Scheme.

44 In my view it was not demonstrated that at any material time Lot 17 abutted a reserve under the Metropolitan Region Scheme. Lot 18 had a frontage to The Strand which was local road reserved under the City's Scheme. The land comprising the four lots opposite on the north side of the road comprised a reserve for "Local Open Space" under the City's Scheme. This in turn adjoined Reserve 27327 known as the Jeff Joseph Reserve, which is also "Local Open Space" under the City's Scheme. Professor Stein relied on the extended meaning of the phrase "abuts on"

(Page 17)

adopted in Krasey v St Boniface (1966) 58 WWR 219, a decision of the Court of Appeal of Manitoba. The question in that case was whether the land in question was liable to assessment for local improvements. The appellants were the owners of a residential property on a street running north and south which formed the eastern boundary of the property at the front. At the rear, on the western side, was a strip of land 16 feet wide, owned by the respondent local authority. Immediately to the west of this strip was another road ("the avenue") running north and south which had been improved by the installation of sewers, water mains, street paving and ornamental lighting. The strip was designated a "Public Reserve", unfenced and open to the public for access. The appellants contended that their land did not "abut on" the avenue because they were separated from it by the strip. In delivering the judgment of the Court, Schutz JA noted at 222 that the word "abut" ordinarily means "actually to touch, actual contact". Yet, after referring to a number of English cases, it was held that the appellants' land abutted on the avenue.

45 In Baddeley v Gingell (1847) 1 Exch 319; 154 ER 136 the words "within the street" included a yard "communicating to the street" with a covered gateway. There were several houses, warehouses, stables and other buildings grouped around the yard. Pollock CB said at 141:

"These acts might have been more clear if the legislature had used the words, 'communicating therewith' or 'abutting thereon'; but I think the meaning is ascertained by viewing the question in this light:- was it the intention of the framers of this Act that a person like the defendant should wholly escape this rate? He clearly derives some benefit from the Act of Parliament; as one of the public in the immediate neighbourhood he shares in the public advantage."

46 A similar result was aimed at in a case where a school house did not immediately front the street, but was set back from it with a row of small houses interposed between the school house and the street frontage. Access to the school was via a private passage running alongside one of the houses. Cockburn CJ held that the school house was one of the properties which was "forming the street". The Chief Justice said at 73 that:

"… the owner of premises so circumstantial should be made to contribute to the paving of the street, it being clearly the intention of the legislature that the owners of property immediately contiguous to the highway to be paved and

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forming part of the street … shall pay, upon the assumption that they personally are benefitted by having put into proper order the street which affords them access to their habitation. That being so, it matters nothing in point of the justio of the case that the house, instead of actually fronting the street, stands in the rear of the street, if it has access to the street. It is the benefit of access to the premises which must be supposed to be the foundation of the liability …"

47 In Wakefield Local Board v Lee (1876) 1 Ex D 336 the Court of Appeal held that the words "fronting, adjoining or abutting" in the Public Health Act 1848, 11 & 12 Vict, Ch 63 extended to include a property which lay alongside a new street, but separated from it by a narrow stream. The property was connected with the street by two bridges across the stream. The owner was held liable to contribute to the paving of the new street. In Richards v Cincinatti (City) (1877) 31 Ohio St R 506 at 514 it was held that while "abutting" meant "joined to" or "adjoining", it did not necessarily mean that the things spoken of were in contact. Thus a strip of road verge separating the property in question from the street did not prevent the property "abutting" the street.

48 All of these cases referred to in Krasey v St Boniface led to the conclusion that the appellant's land was land which "abuts on" the avenue, notwithstanding the strip of public reserve. In the present case, I consider that there could be no doubt that Lot 17 "abuts on" the local road reserve for The Strand. I shall return to the significance of that shortly. However, there is nothing in Krasey v St Boniface which would support the proposition that Lot 17 abutted or adjoined the reserve under the Metropolitan Region Scheme from which it was separated by the local road reserve for The Strand, the four lots on the north side of the road forming part of the Local Open Space reserve and the additional Local Open Space Reserve to the north of that, let alone the reserve for Parks and Recreation to the north again, which was reserved under the Metropolitan Region Scheme.

Abutting Land Reserved under the City's Scheme

49 The City's Scheme, as such, however, is not concerned with reserves under the Metropolitan Region Scheme. As provided in cl 2.1.1 of the City's Scheme:

"Land reserved under Metropolitan Region Scheme is not land reserved under this Scheme."

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50 Clause 2.1.1 also points out that the reservations of the Metropolitan Region Scheme:

"… are shown in the Scheme in order to comply with the provisions of the Metropolitan Region Town Planning Scheme Act 1959."

51 Clause 2.1.2 prohibits development on land reserved under the City's Scheme, other than the erection of a boundary fence, "without first applying for and obtaining the written approval of the Council". No form is prescribed for the purposes of cl 2.1.2.

52 It follows that the position in 1985 was that under the Metropolitan Region Scheme an application was required in respect of a single dwelling house on land abutting a regional reserve. In respect of land abutting a local authority reserve, an application for approval was not required to be made to the Council in respect of a single dwelling house unless cl 5.1.2 was interpreted in the manner submitted by Professor Stein. In the case of land the subject of a cl 32 resolution under the Metropolitan Region Scheme, the approval of both the local authority and the Authority was required.

53 It is in this context that cl 5.1.2 falls to be construed. Professor Stein submitted that cl 5.1.2 complemented cl 2.1.2 by requiring an application in the form prescribed in respect of a proposed development of "land reserved by or abutting land reserved by [this Scheme]". In that case the application was to be made "on the form prescribed hereunder for Council planning consent". Finally, cl 5.1.2 also requires an application for planning consent for any development on land affected by a resolution under cl 32 of the Metropolitan Region Scheme.

54 In summary, an application for Council approval under cl 2.1.2 in relation to reserved land under the City's Scheme should be made in the form prescribed under cl 5.1.2, as are applications in respect of land abutting a local authority reserve and in respect of land the subject of a resolution under cl 32 of the Metropolitan Region Scheme. Where the case also requires the use of Form 1 under the Metropolitan Region Scheme, that form would also be required.

55 It was against this background that Professor Stein submitted that it was appropriate and necessary to imply or insert the missing words "this Scheme" in cl 5.1.2. It was contended by counsel for the City, however, that this interpretation of cl 5.1.2 would lead to the absurd result that because every road vested in the City incorporates land reserved for

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"Local Roads", every dwelling house abutting a local road would require planning consent before development could be commenced.

56 If such a result was not intended it could be cured by an amendment to the City's Scheme. Professor Stein, however, submitted that the result was intended. In the case of the Commission (then the Authority), it was realised in 1983 that, as a result of the requirement that all applications for development on land abutting a regional reserve be sent to the Authority, this would mean that any development abutting a regional road reserve would require the approval of the Commission. Thus, as appears from the Metropolitan Region Scheme text as published in the Government Gazette dated 18 March 1987, cl 5.1 provided that:

"Under the new resolution of the Commission, Local Authorities may determine most development applications for land abutting regional roads although in certain cases they are required to consult with the Main Roads Department before making that determination. However, applications which abut regional roads under the control of the Commission and which propose development deemed as being 'of regional significance' under the terms of this Policy will continue to be determined by the Commission."

57 Professor Stein also accepted that, if the interpretation which he advanced was adopted in respect of the City's Scheme, it would require any development, including a single dwelling house, on land abutting a local road reserve, to be the subject of an application for planning consent. It was suggested that, if this was a mistake, the Council should amend the Scheme, or adopt a policy that development on land abutting particular local road reserves could be exempted, and/or specify the kinds of development abutting local roads which would be allowed without planning consent being required.

58 It was submitted on behalf of the City that the dwelling house proposed to be erected on Lot 17 was not a development which required the planning consent of the Council or an approval under the Metropolitan Region Scheme. In any event, it was argued that, even if such consent or approval was required, there was nothing to prevent the issue of a building licence prior to the approval of the proposed development. This raises the question whether the delegation of authority to grant a building licence from the City to the Building Surveyor empowered him to issue a building licence in the absence of Council planning consent. It was conceded, however, that it would be wise "in most cases" for the development not to

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commence unless and until planning approval had also been obtained. In my opinion, the concession was properly made. In any event, the fact that a building licence has been granted does not say anything about the right to commence building, if planning approval or consent is also required. At all events, I do not consider that these issues affect the approach to or outcome of the proper interpretation of the relevant legislation.

59 The position adopted by the City was that there was no requirement for planning approval of the proposed development of the single dwelling proposed to be erected on Lot 17, which would be the only building on the lot and complied with the Residential Codes. It was accepted that cl 5.1.2 was poorly drafted. However, it was submitted that, as Parker J noted, merely removing the brackets forming the parenthesis made it apparent that cl 5.1.2 was only related to land reserved under the Metropolitan Region Scheme. This would require cl 5.1.2 to be read in the relevant part:

"A person proposing to develop land reserved by or abutting land reserved by or where by resolution of the Metropolitan Region Scheme and where notice is given in the 'Government Gazette' areas have been defined as having concern to the Metropolitan Region Planning Authority shall make application in the form prescribed hereunder for Council planning consent."

60 Evidence was led that as a matter of practice, the City interprets cl 5.1.2 to mean that if a "development" is proposed for land abutting land reserved by the Metropolitan Region Scheme, the City is required to refer that application to the Commission. It was submitted that such an interpretation essentially reflected the requirements of the resolution of the former Metropolitan Region Planning Authority under cl 32 of the Metropolitan Region Scheme as it was in force when the City's Scheme was gazetted. It was submitted by Mr McLeod for the City that for cl 5.1.2 to have the effect contended for by Professor Stein, the words "this Scheme or the Metropolitan Region Scheme" must be inserted after the passage "abutting land reserved by". This would have the result that it would be necessary to refer to the Commission an application to develop land which abutted land reserved under the City's Scheme. This, of course, would be absurd. Every proposed development on land which fronted any main road or local road within the City would have to be referred to the Commission. This would be inconsistent with the role of the Commission. The evidence is that the Commission has no interest in the current matter.
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61 Counsel for Mr and Mrs Brooks also submitted that cl 5.1.2 was applicable only to land which was land reserved under the Metropolitan Region Scheme. It was submitted that a reading of the clause which did least violence to the language required only a re-arrangement of the parenthesis so that the relevant part of cl 5.1.2 would read:

"A person proposing to develop land reserved by or abutting land reserved by (or where by resolution of the Metropolitan Region Scheme and where notice is given in the 'Government Gazette' areas have been defined as having concern to the Metropolitan Region Planning Authority) shall make application …"

62 It was further submitted by Mr Edmonds that land not referred to in cl 5.1.2 should be the subject of an application under cl 5.1.1. Secondly, cl 5.1.2 was not a substantive provision for Council's planning consent. Thirdly, there was no requirement for submission of plans under cl 5.1.3 in respect of an application under cl 5.1.2. Clause 5.1.3 only applied to an application under cl 5.1.1. The requirements under cl 5.1.4 for grouped developments, multiple dwellings, special purpose dwellings or any combination of them refer to an application under cl 5.1.1 on a form prescribed by the Council referred to in cl 5.1.2. These provisions have nothing to do with land abutting a reserve under the Metropolitan Region Scheme. Finally, it was submitted that there was nothing in the City's Scheme which required an application for planning consent under the City's Scheme for development on land abutting a reserve under the City's Scheme. Part II of the City's Scheme deals with development on reserved land. It is self-contained. It says nothing about development on land abutting land reserved under the City's Scheme.

63 Mr Edmonds pointed out that the interpretation which he and Mr McLeod submitted was correct made literal sense. By contrast, the interpretation propounded by Professor Stein required a legislative gap to be first identified and then filled. In Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 at 1236 Denning LJ said:

We sit here to find out the intention of Parliament and of Minister and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis."

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64 Earlier in Seaford Court Estates Ltd v Asher [1949] 2 KB 481 at 499 his Lordship had said:

"A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out?"

65 See also Ministry of Housing & Local Government v Sharp [1970] 2 QB 223. However, in Marshall v Watson (1972) 124 CLR 640 at 649 Stephen J said:

"… it is no power (sic part) of the judicial function to fill gaps disclosed in legislation; as Lord Simonds said in Magor and St Mellons RDC v Newport Corporation [1952] AC 189 at 191, 'If a gap is disclosed the remedy lies in an amending Act' and not in a 'usurpation of the legislative function under the thin guise of interpretation'."

66 In the present case, the interpretation of cl 5.1.2 submitted on behalf of Mr and Mrs Brooks makes total sense of the clause without requiring any additional words to be written in to "fill in the gaps". The interpretation submitted by Mr McLeod likewise avoids any necessity of this kind. In my view, the interpretation advanced by Professor Stein raises more questions than it answers and requires words to be inserted which are not necessarily to be implied. It requires a step to be taken which would be an illegitimate filling of gaps.

67 In this connection I note that by a letter dated 19 November 1998 the Commission notified the Chief Executive Officer of the City that with respect to the proposed development:

"The subject land is zoned urban under Part III of the MRS, ie not affected by the Swan River Trust Management Area, regional reservations, notice under clause 32 of the [Metropolitan Region Scheme] or declaration under section 35C of the Scheme Act. The attached extract from the [Metropolitan Region Scheme] depicts the subject land.

Accordingly pursuant to the provisions of the [Metropolitan Region Scheme] the application does not require the determination of the Western Australian Planning Commission."

68 In my opinion that view of the matter is entirely correct.



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Conclusion

69 In my opinion, Mr and Mrs Brooks were not required to make an application to the City for planning consent under cl 5.1.2 of the City's Scheme. The application in fact made was not required to be approved by the City or anyone else. In terms of s 374 of the LGMP the plans conform to the City's Scheme and there is nothing standing in the way of the City issuing a building licence in respect of the plans which have been approved.

70 For these reasons the order nisi should be discharged and the motion for the declaration should be dismissed.

71 IPP J: The relevant facts and circumstances concerning this appeal appear from the reasons to be published by Malcolm CJ. I agree generally with his Honour's reasons and with the orders proposed. I wish merely to make the following additional comments of my own.

72 The application turns on the proper construction of cl 5.1.2 of the City of Melville Town Planning Scheme No 3 ("the City's Scheme"), which is in the following terms:

"A person proposing to develop land reserved by or abutting land reserved by or (where by resolution of the Metropolitan Region Scheme and where notice is given in the 'Government Gazette' areas have been defined as having concern to the Metropolitan Region Planning Authority) shall make application on the form prescribed hereunder for Council planning consent. The form prescribed by the Metropolitan Region Scheme shall be referred by the Council to the Metropolitan Region Planning Authority."

This clause is not capable of being given any intelligible meaning as it stands.

73 Counsel for the applicant submitted that words should be read into the clause so that it would have the meaning that an application for the Council's planning consent would be required for any development on land reserved by the City's Scheme, or on land abutting land reserved by the City's Scheme, or on land in an area the subject of the resolution under cl 32 of the Metropolitan Region Scheme. The submission was that the words "this Scheme" should be read into the clause after the phrase "or abutting land reserved by". This construction was supported by
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arguments on various grounds (and of some complexity) relating to the historical development of the relevant legislation and other matters.

74 Counsel for the second and third respondents submitted, on the other hand, that, properly construed, cl 5.1.2 was not concerned with the Council's planning consent or the development of land reserved by or abutting land reserved by the City Scheme. They submitted that cl 5.1.2 did not require planning consent on the part of the Council and should be construed to refer only to land reserved by or abutting land reserved by the Metropolitan Region Scheme and land the subject of the resolution under cl 32 of the Metropolitan Region Scheme.

75 Counsel for the second respondent submitted that the intended meaning of the clause would properly be revealed if the brackets forming the parenthesis were omitted, entirely. Counsel for the third respondents submitted that the clause should be read by placing the first bracket after the word "by" (where it appears for the second time in the clause), and placing the second bracket after the word "to". On this basis, the clause would read as follows:

"A person proposing to develop land reserved by or abutting land reserved by (or where by resolution of the Metropolitan Region Scheme and where notice is given in the 'Government Gazette' areas have been defined as having concern to) the Metropolitan Region Planning Authority shall make application on the form prescribed hereunder for Council planning consent. The form prescribed by the Metropolitan Region Scheme shall be referred by the Council to the Metropolitan Region Planning Authority."

I think that the comment could fairly be made that in neither instance would the clause be a model of plain English; nevertheless, it would be comprehensible and, save in one respect, it would support the submissions made on behalf of the second and third respondents.

76 The aspect of cl 5.1.2 that is not resolved on the construction so advanced is that which concerns the two forms to which reference is made in the clause.

77 The first form to which the clause makes reference is a form to be used by an applicant "proposing to develop land reserved …". The clause describes the form as "the form prescribed hereunder for Council planning consent". As Malcolm CJ points out, it is implicit that that form is Form CM 1 in Appendix 2 of the City's Scheme.

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78 The second form referred to in cl 5.1.2 is "[t]he form prescribed by the Metropolitan Region Scheme". That form, according to the clause, "shall be referred by the Council to the Metropolitan Region Planning Authority". By legislative amendment, the Metropolitan Region Planning Authority is now the Western Australian Planning Commission ("the Commission"). In my opinion, the reason for the requirement that the Council submit the form in question to the Commission appears from cl 28 and cl 29(1) of the Metropolitan Region Scheme Text ("the MRS Text"). Clause 28 provides:

"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 of this Scheme, and shall be submitted in duplicate to the local authority in whose district the land the subject of the application is situate …"

By cl 29(1), the local authority to which such an application is submitted is (under certain stipulated circumstances) required to forward the application to the Commission for determination.

79 Clause 28 therefore provides that a person wishing to apply for approval from the Commission for a development on reserved land (as required by the Metropolitan Region Scheme) should make the application to the local authority concerned on Form 1 of the MRS Text. Thereafter, in the circumstances stipulated by cl 29(1), the local authority is required to forward the application (by way of a duplicate copy of Form 1) to the Commission for determination.

80 In the circumstances, in my view, the reference in cl 5.1.2 to "[t]he form prescribed by the Metropolitan Region Scheme" is a reference to Form 1 contained in the MRS Text.

81 The heading to Form 1 is "Metropolitan Region Scheme". It is a form intended to be signed by the owner of land on which development is proposed. The name of the local authority in whose area the development is proposed is identified on the form, and provision is made for details relevant to the proposed development. Save in one respect, Form CM 1 differs from Form 1 only in respects that do not seem to be significant. The important difference is the heading to Form CM 1, which is "Application for Council's Planning Approval to Proposed Development". Counsel for the applicant, in contending that cl 5.1.2 required the Council's planning consent to the categories of development referred to therein, pointed to the requirement in cl 5.1.2 that Form CM 1 be used and drew particular attention to the heading to the form.

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82 As I have observed, the express reference in cl 5.1.2 to the use of Form 1 relates to the use of that form in connection with the requirements of the Metropolitan Region Scheme, particularly pursuant to cl 28 and cl 29(1) of the MRS Text. In my view, this affects the construction to be placed on that part of cl 5.1.2 that deals with the application to be made by "the form prescribed hereunder for Council planning consent", that is Form CM 1. That is because the tenor and structure of cl 5.1.2 indicate that there is a link between applications under Form CM 1 and the use of Form 1. Once that is so, I do not accept that cl 5.1.2 intends Form CM 1 to be used for the obtaining of Council's planning consent to a development on land reserved by or abutting land reserved by the City Scheme. The reason for this conclusion is that there could be no connection whatever between Council's planning consent to such a development, on the one hand, and approval by the Commission to a development pursuant to the Metropolitan Region Scheme, on the other.

83 In my view, cl 5.1.2, properly construed, requires Form CM 1 to be used when owners of the land to be developed apply, in the first instance, in terms of cl 28, for the approval of the Commission to the development of land. Clause 28 requires that application to be made, in the first instance, to the local authority concerned. Thus, in terms of cl 5.1.2, that application is to be made, firstly, to the Council (by using Form CM 1). Further, cl 5.1.2 requires Form 1 to be used by the Council to forward those applications to the Commission (as cl 28 and cl 29(1) provide). It is true that, by cl 28, such applications, in the first instance, should be made on Form 1 (and not on Form CM 1), but it seems to me that this was lost sight of when cl 5.1.2 was drafted. In other words, the requirement in cl 5.1.2 to use Form CM 1 is an error, and no inference as to the overall meaning of cl 5.1.2 can be drawn from the implied reference to it in that clause. In my opinion, there is no other rational and reasonably practical explanation for the reference to the two different forms in cl 5.1.2.

84 In my view, a purposive construction has to be undertaken in an attempt to make sense of cl 5.1.2. I appreciate that this approach simplifies the issues raised; but, in my view, for the reasons that I express below, it is the most satisfactory.

85 Malcolm CJ has referred to incongruities that would result from the construction advanced by the applicant. In particular, it would be strange indeed if planning approval were to be required from the Council for every development involving a single dwelling house on land abutting a local road reserve. Yet this would be an inevitable consequence of the

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applicant's contention, a consequence that counsel for the applicant himself accepted, rightly, would be "an absurd result".

86 In my opinion, this absurdity is the paramount factor that is to be weighed in the construction exercise that has to be undertaken. Were the construction advanced by the second and third respondents to be accepted, there would be no absurdity. Clause 5.1.2 would then apply only to developments on land reserved by the Metropolitan Region Scheme, or on land abutting land reserved by the Metropolitan Region Scheme, or on land in an area the subject of the resolution under cl 32 of the Metropolitan Region Scheme. The clause has been applied in this way until now, and this appears to be practically efficacious. The needs of the respective authorities involved are satisfied thereby. Construing cl 5.1.2 in accordance with this accepted practice would avoid the absurdity that would otherwise result. Also, it would do the least violence to the clause. On the other hand, there is no purposive reason that would support the construction advanced by the applicant.

87 In my view, these considerations outweigh the arguments advanced on behalf of the applicant. In the circumstances, I would dismiss the application and discharge the order nisi.

88 STEYTLER J: I have had the advantage of reading the reasons for decision of Malcolm CJ and Ipp J. I agree with what each of them has said and with the conclusions at which each has arrived. I have nothing to add.