Re Shire of Mundaring; Ex parte Solomon - [2007] WASCA 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: RE SHIRE OF MUNDARING; EX PARTE SOLOMON & ORS [2007] WASCA 132

CORAM: STEYTLER P
McLURE JA
PULLIN JA

HEARD: 16 FEBRUARY 2007

DELIVERED : 28 JUNE 2007

FILE NO/S: CIV 2268 of 2005

MATTER :Application for a Writ of Certiorari against the SHIRE OF MUNDARING

EX PARTE
GREGORY HOWARD SOLOMON
DOUGLAS HOWARD SOLOMON
STEPHEN GEOFFREY BEYER
LEE HELEN SOLOMON
NOREEN NYUNT
Applicants
AND
SHIRE OF MUNDARING
First Respondent
COMMERCIAL PROPERTIES PTY LTD
Second Respondent
TIMEDRIFT PTY LTD
Third Respondent

Catchwords:

Administrative law - Validity of planning approval - Construction of town planning scheme - Whether failure to take into account relevant considerations - Scope of the power to impose conditions - Turns on own facts

Legislation:

Planning and Development Act 2005 (WA), s 68
Strata Titles Act 1985 (WA), s 5C, s 6, s 6A, s 25B, s 42
Town Planning Development Act 1928 (WA), s 7(3)

Result:

Order nisi discharged

Category: B

Representation:

Counsel:

Applicants:     Mr P G McGowan
First Respondent           :     Mr C A Slarke
Second Respondent      :     Mr B Hayes QC & Mr G R Dean
Third Respondent          :     No appearance

Solicitors:

Applicants:     Fiocco's Lawyers
First Respondent           :     McLeods
Second Respondent      :     Dean & Rowick
Third Respondent          :     No appearance

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

Burge v Swarbrick (2007) 234 ALR 204
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

STEYTLER P: I agree with McLure JA.
McLURE JA: This is the return of an order nisi for a writ of certiorari to quash decisions made by the first respondent, the Shire of Mundaring ("the Shire") in 2003 and 2005 to grant planning approval in respect of lot 77 Jacoby Street, Mundaring ("Lot 77").
The applicants are the registered proprietors of lot 78 Jacoby Street, Mundaring ("Lot 78"). The registered proprietors hold the land on trust for the Sayagyi U Ba Khin Memorial Trust and operate a Theravada Buddhist meditation centre on the land.
The second respondent is the registered proprietor of Lot 77. In March 2005 the third respondent had contracted to purchase Lot 77 from the second respondent. The primary focus of the proceedings is the planning approval granted in September 2005 and I propose to commence with that matter.

The 2005 approval

The third respondent applied for planning approval in March 2005. On 27 September 2005 the Council of the Shire resolved to:
"[A]pprove the original plan (Plan No.1) of the proposed Aged and Dependent Persons' Dwelling development, together with community centre incorporating respite care facilities, at … (Lot 77) Jacoby Street, Mundaring subject to the attached conditions".
Plan No 1 provides for 34 units and incorporates what is described as a "Community Care Centre and Rest Home" which includes community lounge, dining, kitchen and recreation facilities, five respite rooms with associated bathroom facilities and a medical service provider's room.
The conditions of approval relevantly included:
"18.To preserve the character of the development as a rest home, the development may only be occupied while it provides the communal facilities detailed in Footnote 4 of this determination, for the benefit of all occupiers of the development.
…

20.All occupants of each grouped dwelling unit shall be aged over 55 years."

Footnote 4 specifies the minimum requirements which include medical emergency buttons in bathrooms and bedrooms, monitoring of medical alarms, a five‑bed respite care facility within the Community Centre and the provision of medical, health, social and other services to be provided on site to residents.
In response to a request for information from the Shire, the third respondent advised the Shire of its proposal that the proposed development comprise survey‑strata titled lots and common property under the Strata Titles Act 1985 (WA) with the survey‑strata plan being subject to a detailed management statement specifying by‑laws to control the nature and characteristics of the development and its ongoing use and management. A detailed management statement was not in evidence. The proposed land tenure arrangement was not referred to in the Shire's grant of planning approval.
Lot 77 is zoned "special purpose" under the relevant town planning scheme being Town Planning Scheme No. 3 ("TPS3"). The applicants' primary contention is that the proposed development the subject of the September 2005 planning approval falls outside the special purpose designated for Lot 77.

Relevant provisions of TPS3

The land to which TPS3 applies, other than reserved land, is classified into zones, one of which is special purpose (cl 3.0(1)). The objectives of the special purpose zone are set out in cl 3.1(10) which provides:
"The objectives of a Special Purpose Zone are:
(a)to make special provisions for a specific use or combination of uses on particular land where provisions of the Zoning Table are restricted;
(b)to ensure that any use or other development of land which is considered to be liable to have significant impact, takes place only after rezoning in accordance with a detailed development proposal for the use or other development; and
(c)to prescribe the permissibility of uses and any special standards, controls or requirements applicable to the carrying out of such uses or any other development on the land to prevent any detriment to the locality."
Clause 3.2 is headed "Permissibility of Uses". It refers to the permissibility of uses in various zones indicated in the Zoning Table. The Zoning Table applies to all the uses identified in cl 3.0(1) save for special purpose. The symbols used in the Zoning Table include "P" which means the use is permitted; "AA" which means the use is not permitted unless special permission is granted by the Council; and "SA" which means the use is not permitted unless special approval is granted by the Council.
One of the use classes in the Zoning Table is "Aged or Dependent Persons Dwelling". The term "aged or dependent person" is defined in cl 1.13(4) of TPS3 as having the same meaning given to it in the residential planning codes. The phrase is defined in the relevant codes (now the Residential Design Codes) as a person who is aged 55 years or over or is a person with a recognised form of disability requiring special accommodation provisions for independent living or special care (cl 2.2). The term "aged or dependent persons dwelling" is defined in cl 1.13(4) to mean a dwelling designed or adapted for the accommodation of aged or dependent persons.
Clause 3.2(5) deals expressly with special purpose zones. It provides:
"Special Purpose Zones ‑ No land in a special purpose zone shall be used or developed, except for the purpose and in accordance with the standards specified against the description of such land in Schedule 1 to the Scheme."
Schedule 1 is in tabular form comprising three columns under the headings "Prescribed Use/Purpose", "Land Particulars" and "Permissibility of Uses and Special Conditions". In relation to Lot 77, Sch 1 provides:

"PRESCRIBED USE/PURPOSE	LAND PARTICULARS	PERMISSIBILITY OF USES AND SPECIAL CONDITIONS
Rest Home	Lot 77 Jacoby Street, Mundaring	AA‑ Aged and Dependent Persons' Home, Rest home, Retirement centre, Caretaker's residence, Manager's residence, Incidental admin. uses"

A person who desires to commence or carry out any development on land zoned under TPS3 (save in limited circumstances) is required to apply to the Council for planning approval before applying for a building licence or commencing to use the property (cl 6.1).

Grounds of challenge

The grounds on which the order nisi was granted in relation to the 2005 approval are prolix, repetitive and unfocused. I propose to rely on the grounds articulated on behalf of the applicants in their written and oral submissions. They are as follows:
1.On the proper construction of the special purpose

zone for Lot 77:
(i)the primary use or purpose of Lot 77 must be the prescribed use or purpose in column 1 of Sch 1, being that of rest home, the other uses listed in column 3 of Sch 1 being subsidiary or subservient to the primary use or purpose of rest home;
(ii)the term rest home means a facility for the frail aged;
(iii)the word "and" in the expression "aged and dependent persons home" in column 3 is conjunctive and requires that the home accommodate occupants who are both aged and dependent;
(iv)the primary uses specified in column 3, including that of "retirement centre", require that there be a single, entire facility;
(v)to survey‑strata title the proposed development is inconsistent with the primary uses specified in column 3.
2.The Council of the Shire failed to consider whether condition 18 of the conditions of approval was capable of being achieved in circumstances where the proposed development involved a survey‑strata scheme;
3.In breach of cl 3.1(10) of TPS3, the Council of the Shire failed to consider whether the proposed development was liable to have a significant impact, failed to consider submissions that it would have such an impact and failed to consider whether there should be a rezoning;
4.The Council of the Shire failed to take into account a relevant consideration being the advice of senior counsel that individually owned lots under the survey‑strata title proposal resulted in the development being outside the special purpose zoning;
5.The Council of the Shire failed to take into account a relevant consideration being whether the proposed development met the performance criteria of the Residential Design Codes and further that the conditions of approval requiring compliance with the acceptable development provisions of the Residential Design Codes are beyond power.

The history of the zoning of Lot 77

Until 18 January 1980 Lot 77 was zoned rural. At that time the development on the land was used for the provision of permanent residential accommodation for 10 frail aged persons which operated under the name "Mundaring Rest Home". In January 1979 an application was made to Council for approval to construct 30 retirement units on Lot 77 for people who were still independent and able to look after themselves. That purpose was described as complementary to the existing rest home facilities. The Council of the Shire resolved to approve the development subject to, inter alia, Lot 77 being rezoned from rural to "Special Purpose ‑ Aged Persons Homes". The Scheme Amendment Report described the proposed zoning as being "to reclassify the land … to cover the present Rest Home Use and the construction of a Retirement Centre to complement the Rest Home itself".
The amendment of the zoning was effected by Scheme Amendment No 75 to the then applicable town planning scheme (Town Planning Scheme No 1 ("TPS1")). Amendment No 75 was gazetted on 18 January 1980. The permitted use in the special purpose zone for Lot 77 was as follows:
"Aged persons Home comprising Rest Home, Retirement Centre, Caretakers and Managers' residence and incidental administrative uses."
The development approval which resulted in the change of zoning was not acted upon within the specified time and lapsed. A number of other similar applications were subsequently made and approved and those approvals also lapsed. In the early to mid‑1990s the rest home on Lot 77 ceased operation and has not since reopened.
TPS3 commenced on 18 March 1994. The expressions "Prescribed Use/Purpose" in column 1 and "Permissibility of Uses" in column 3 of Sch 1 were first introduced in TPS3. It is not suggested that the special purpose zoning of Lot 77 in TPS3 relates to a specific application for planning approval.
A further application for planning approval was made in September 1998. The proposed development was for 36 aged persons units on Lot 77. The application was approved in September 1999. One of the conditions of approval was that in order to preserve the character of the development as a rest home, the units were not to be strata titled. The applicants successfully appealed to the Minister against that condition. The Minister decided it was not an appropriate condition of planning approval and the matter was properly dealt with if and when a strata‑title application was made. Subsequent planning approvals for Lot 77 have not contained such a condition.

Construction of special purpose zone for Lot 77

A town planning scheme once published in the Government Gazette has full force and effect as if it were enacted by the Town Planning Development Act 1928 (WA), s 7(3), now the Planning and Development Act 2005 (WA), s 68.
Context, in the wide sense to include legal and historical background, is relevant to the interpretation of legislation, including delegated legislation: Burge v Swarbrick (2007) 234 ALR 204 at [57]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
Further, planning schemes are not drawn with the precision of Acts of Parliament and should be construed broadly rather than pedantically and with a sensible practical approach: Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 at [18]; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at [31].
Starting with column 3 in Sch 1 of TPS3, the caretaker's and manager's residences and incidental administrative uses are clearly intended to be incidental to the other, what may be described as primary uses, being aged and dependent persons' home, rest home or retirement centre.
The symbol "AA" in column 3 of Sch 1 can only be intended to be a reference to that symbol defined in cl 3.2(2) for use in the Zoning Table to mean that the use is not permitted unless special permission is granted by Council. That has the consequence that, subject to a qualification in relation to a stand alone rest home, the primary uses or any combination thereof specified in column 3 are not permitted without special permission. That conclusion is consistent with the reference to "Permissibility of Uses" in the heading to column 3 and with the use of that expression in cl 3.1(10)(c), which provides that the objective of a special purpose zoning includes prescribing the permissibility of uses, and cl 3.2 which is headed "Permissibility of Uses".
As column 3 relates to the scope of permissible uses analogous to "AA" uses in the Zoning Table, it is probable that the "Prescribed Use" in column 1 is the special purpose zone equivalent of a "P" use in the Zoning Table, being a use permitted by TPS3. That conclusion is consistent with the history of Lot 77 which was being used (or had in the recent past been used) as a rest home when TPS3 commenced. Moreover, before the commencement of TPS3 there had been a number of successful development applications that involved combinations of the permissible uses in column 3 all of which approvals had lapsed.
This construction of columns 1 and 3 in Sch 1 is consistent with the objective in cl 3.1(10) of a special purposes zone being to make "special provisions for a specific use or combination of uses on particular land" and "to prescribe the permissibility of uses". In the case of Lot 77, the intention was to approve a specific use (rest home) and to provide flexibility for permitting other uses. The remaining question of construction is whether the prescribed use is not only a permitted use but also a necessary component of any broader development under the permissibility of uses. In my view, that is the intended meaning and consequence of the expression "Prescribed Use/Purpose" in column 1. However, there is nothing in the language or purpose of the special purpose zoning provision for Lot 77 to support the applicants' contention that the prescribed use is, and must continue to be, the primary use and the permissible uses must be ancillary or subservient to the primary use. Indeed, such a construction is inconsistent with the proposed development that prompted the initial rezoning to special purpose.
I turn now to the meaning of the primary uses in column 3 of Sch 1, none of which are defined in TPS3, starting with rest home. Special purpose zones are site specific and I infer that the description of the specific and permissible uses is formulated by reference to the detailed development proposal that is required by cl 3.1(10)(b) before there can be a rezoning to (or of) a special purpose zone. I accept that the meaning of the term "rest home" would be informed by the proposed development that resulted in the change in zoning of Lot 77 from rural to special purpose which included a continuation of its then existing use as a rest home. Included within that use is the accommodation of frail aged persons. However, I see no justification for confining that use to the same activities actually carried out by the then existing rest home. The authorities on non‑conforming uses provide guidance in this respect: see Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 at [27] ‑ [34]. Further, condition 18 of the conditions of approval is directed at ensuring that the proposed development caters for the needs of occupants who are both frail and aged.
As to the phrase "aged and dependent persons home", the applicant contends that the word "and" is used in its ordinary meaning to be conjunctive (Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at 1799) so that the occupants have to be both aged and dependent (frail). The applicants contrast this phrase with the use class "aged or dependent persons dwelling" in the Zoning Table. However, the construction contended for by the applicants is inconsistent with the history of the special purpose zone for Lot 77. Moreover, there is no warrant in the language for such a narrow interpretation. On its proper construction, the expression means that the home is available to both aged persons and dependent persons.
The applicants also contended that the expression "retirement centre", like the other primary uses, necessitated a single or entire facility. The applicants were unable to provide a comprehensive positive statement of what that entailed. It was accepted that a single facility could comprise a number of buildings from which I infer there is no objection in principle to the physical development shown on Plan 1. However, it was submitted that private ownership of the units under the survey‑strata proposal was incompatible with that requirement.
As I have come to understand the submission, it seems that grounds 1(iv), (v) and 2 are linked and express different aspects of the one proposition which I understand to be in substance as follows: a single and entire facility is one in which the services available to the occupants of the home or centre, in particular accommodation, are provided by, or at the request or direction of, an independent entity who has ownership, management and control of the entire facility, including the units.
The applicants did not rely on any evidence or clearly identify the basis for their assertion that a survey‑strata title development is inconsistent with the permissible primary uses or their related claim that a strata title development was incapable of satisfying condition 18 of the approval. As I understand the submission, the substance of the objection is to individual ownership of the units (and any associated limitations on management and control) not the means for achieving ownership.

I am not satisfied that owner occupation of the proposed units is inconsistent with an aged and dependent persons' home, rest home or retirement centre. The conditions of approval of the proposed development, in particular conditions 18 and 20, give the development the requisite status. Further, there is no necessary inconsistency between ownership of the units and ongoing compliance with conditions 18 and 20 upon which the continuing occupation of the development will depend. Regardless of who owns the units, all the occupants will no doubt be called upon, directly or indirectly, to bear the cost of the facilities the subject of condition 18 whether or not the occupants choose to avail themselves of their entitlement to use them.
I accept that the mechanism for securing continued compliance with condition 18 will in due course require close consideration. That mechanism will be the detailed management statement in which issues of ongoing use and management will be addressed (see s 5C, s 6, s 6A and s 42 of the Strata Titles Act). Whether the proposed survey‑strata scheme (including the detailed management statement) is adequate to ensure continuing compliance with the conditions of planning approval is a relevant consideration in determining whether to approve any proposed survey‑strata scheme. However, the application considered by the Council of the Shire was an application for planning approval. It was not an application to approve a survey‑strata scheme. The Council does not have the power to approve such an application. Further, the planning approval does not endorse or approve the development on the basis that it is to be strata titled. The subdivision of land by a survey‑strata scheme requires approval by the Western Australian Planning Commission ("Commission"): s 25B of the Strata Titles Act. The Shire's role is to provide comment to the Commission on the scheme which would include the scheme's ability to secure continuing compliance with the conditions of planning approval.
I would dismiss grounds 1 and 2.

Significant impact cl 3.1(10)(b)

The applicants contend that the Council of the Shire failed to consider whether the proposed development was liable to have a significant impact, failed to consider submissions to that effect and failed to consider whether there should be a rezoning. The challenge is predicated on the correctness of the applicants' submission that under the special purpose zoning of Lot 77, the rest home had to be the primary use and any additional column 3 use subservient or incidental thereto. If that was correct, the proposed development would not have been in accordance with the special zone and a rezoning would be required. However, if as in this case the proposed development was within the permissibility of uses in column 3, rezoning would not be required.
Clause 3.1(10)(b) links the liability of the proposed development to have significant impact with the requirement for rezoning. This supports the Shire's contention, which I accept, that cl 3.1(10)(b) applies where the existing zoning is to be changed to a special purpose zone (or, I interpolate, if the existing special purpose zone does not cover the proposed development) not where the proposed use is already a permissible use under an existing special purpose zone.
The applicants did not contend that the effect of cl 3.1(10)(b) of TPS3 is that a special purpose zone relates solely to the proposed development which prompted the zoning change and the zoning lapses if the development does not proceed. As is apparent from the symbol "AA" in column 3 of Sch 1, the special permission of Council is required in respect of the permissible uses after rezoning to a special purpose zone. I would dismiss ground 3.

Relevant considerations ‑ Counsel's advice

A relevant consideration is one which the decision‑maker is expressly or impliedly obliged to take into account in the course of reaching the decision under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The relevant legislation may specify the particular matters which are to be considered or the obligation may arise by implication from the subject matter, scope and purpose of the legislation. A legal adviser's opinion as to the proper construction of the legislative source of the decision‑making power is not a relevant consideration in the sense in which the term is used in judicial review. If the decision‑maker acts on an incorrect interpretation of the legislation, that itself gives rise to an error of law which can be the subject of judicial review. Further, as the second respondent points out, the opinion of senior counsel was provided after the decision under challenge was made. I would dismiss ground 4.

Performance criteria of Design Codes

Clause 4.2(3) of TPS3 provides:
"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes and the Schedules to those Codes."
The reference to Residential Planning Codes should now be read as a reference to the Residential Design Codes.
Clause 6.6(8) of TPS3 deals with the Council's power to determine applications for planning approval. It may refuse to grant its approval, grant approval without conditions, grant approval subject to such conditions and requirements as it deems fit or refuse the application but resolve to notify the applicant that it would be prepared to grant approval with or without conditions to the application amended in a stipulated manner.
A number of conditions of the 2005 approval require the proposed development to comply with specified clauses of the Residential Design Codes. Condition 3 of the planning approval is a representative example and provides:
"The units to be setback from each other so as to comply with Clause 3.3.1(A1)(iii) of the Residential Design Codes."
The Residential Design Codes state the objective of the design element or aspect, the performance criteria that must be satisfied if the objective is to be met and acceptable development provisions related to the performance criteria. The acceptable development provisions provide a means by which development can be "deemed to comply" and provide a speedy and certain path to approval. The performance criteria allow the possibility of other ways of achieving an acceptable outcome.
When an applicant chooses not to rely upon the acceptable development provisions and bases any aspect of a proposal on the relevant performance criteria, the onus is on the applicant to provide relevant documentation to show that the performance criteria have been satisfied.
The applicants contend that the Council was required to consider whether the performance criteria of the Residential Design Codes had been met and failing such consideration was required to refuse the application without the imposition of conditions requiring the development to comply with the acceptable development provisions.
I am not satisfied on the evidence that the applicant for planning approval based any aspect of its proposal on the performance criteria of the Residential Design Codes or satisfied its onus of providing relevant documentation. In those circumstances, the Council is not required to consider whether the performance criteria have been met and has the power to impose the challenged conditions.
However, even if error was established it is of no material interest or consequence to the applicants and I would in the exercise of my discretion refuse the applicants' claim for certiorari on this ground.

The 2003 approval

The application relates to a decision of the Shire made on 23 September 2003 to grant planning approval to the second respondent in relation to a proposed development and is similar in material respects to the proposed development the subject of the 2005 application. It was a condition of the 2003 approval that it be valid for three years. The approval lapsed in September 2006. The second respondent applied for an extension of the period of approval. The Shire refused the extension application on the basis that it lacked the power to grant such an extension. There was no challenge to that decision. A fresh application

for planning approval was lodged with the Shire. It was not dealt with in the required time and was therefore deemed to be refused. The deemed refusal is the subject of an application to the State Administrative Tribunal to review the decision. The review application has been adjourned sine die to await the outcome of this application.

As the 2003 approval has lapsed and there is no challenge to the refusal to extend the period of approval, the application is of no practical use and I would in the exercise of my discretion decline to grant the relief sought.

Conclusion

For these reasons I would discharge the order nisi.
PULLIN JA: I agree with McLure JA