Reid v City of Gosnells - [2023] WASC 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   REID -v- CITY OF GOSNELLS [2023] WASC 48
CORAM:   ARCHER J
HEARD:   14, 28 & 30 JUNE, 1 & 7 JULY 2022 & FURTHER SUBMISSIONS IN AUGUST & SEPTEMBER 2022
DELIVERED          :   5 APRIL 2023
FILE NO/S:   CIV 2263 of 2021
BETWEEN:   JIM REID
Applicant
AND
CITY OF GOSNELLS
Respondent
WESTERN AUSTRALIAN PLANNING COMMISSION
Other Party

Catchwords:

Judicial review - Construction of planning legislation and planning schemes - Right to undertake 'public work' - Planning approval - Multiple activities - Proper approach to determining 'uses' - Proper construction of zones in Metropolitan Region Scheme - Must local planning schemes and development approvals under local and region schemes be 'consistent' with the MRS zone

Legislation:

Planning and Development Act 2005 (WA)

Result:

Application for judicial review allowed

Representation:

Counsel:

Applicant	:	K M Pettit SC & C M Fisher
Respondent	:	D W McLeod
Other Party	:	I A Repper & B Loftus

Solicitors:

Applicant	:	Glen Mcleod Legal
Respondent	:	McLeods
Other Party	:	State Solicitor's Office

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

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
Castle and City of Rockingham [2018] WASAT 98
City of Canning v Avon Capital Estates (Australia) Ltd [2012] WASC 223
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) LGERA 96
City of Swan v Snowdale Holdings Pty Ltd [2016] WASC 260
Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339
Dawe v Town Planning Board (Unreported, TPAT Appeal No. 5/1979, 17 December 1979)
Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Foster v Aloni [1951] VLR 481
G & G Corp Asset Management Pty Ltd and Presiding Member, Metropolitan East Joint Development Assessment Panel [2018] WASAT 9
General Nominees Pty Ltd (ATF Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Huntingdale Village Pty Ltd (receivers and managers appointed) v Corrs Chambers Westgarth (a firm) [No 3] [2016] WASC 366
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Legal Services Board v Gillespie-Jones (2013) 249 CLR 492; [2013] HCA 35
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274
Mattinson v Multiplow Incubators Pty Ltd [1977] 1 NSWLR 368
Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Mohammadi v Bethune [2018] WASCA 98
Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; (2016) 256 CLR 437
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nathanson v Minister for Home Affairs [2022] HCA 26
Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336
R v Young (1999) 46 NSWLR 681
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Sanders v City of South Perth [2019] WASC 226
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210
The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297; (2003) 58 NSWLR 631

Table of Contents

Introduction

Facts

Issues

Judicial review

Approach to statutory construction

Construction of definitions

The ejusdem generis rule

Public works

Could the City undertake the Proposed Development as a 'public work'? (Issue 1)

'Public work' definition
Singular 'work'
The bases for the City's claim to have the right
Did the City have the right under s 3.18(2) of the Local Government Act (paragraph (a) of the PWA Definition)?
City's submissions
Applicant's submissions
Conclusion
Did the City have the right under other Acts or other paragraphs of the PWA Definition?
Authorised under Acts other than the Local Government Act
Being a Specified Work
Conclusion - not a Public Work

If the Proposed Development was 'public work', did the City comply with s 6 of the Planning and Development Act? (Issue 2)

If the City did not comply with s 6 of the Planning and Development Act, did that matter? (Issue 3)

Development approval - construction issues (Issues 4 and 5)

Regulatory framework

Region and local planning schemes
Local scheme requirements
Must be consistent with region schemes
Must include the Deemed Provisions and Model Provisions
Must have regard to planning policy
Development approvals
The meaning of 'development'
Development approval powers

What is the proper approach to determining the 'uses' of a development? (Issue 4)

Regulation of 'uses' in TPS 6
Civic Use under TPS 6
Construction of an approved development (or proposed development)
Determining uses
Conclusion on proper approach to identifying uses

What does 'Civic Use' mean? (Issue 5)

Unusual case
Absence of items in TPS 6 Zoning Table
'Or other purposes'
Clause 3.4.1
Consequences of construction
The words
Conclusion on meaning of Civic Use

What was approved? (Issue 6)

The evidence

Application to the City - June 2020
Application to WAPC - July 2020
Additional documents provided to WAPC April 2021
The Marked Plan
Other versions of the Marked Plan
The Animal Facility Plan
Approval by WAPC
Approval by City

Conclusion on what was approved

Identification of uses in what was approved (Issue 7)

First step

Second step

The animal facility
Waste Transfer Facility
Green Waste Grinding

Third step

Fourth step

Conclusion on uses

Was the green waste grinding an existing use? (Issue 8)

Conclusion on power to approve the uses under TPS 6

Was the Proposed Development inconsistent with the MRS Rural Zone? (Issue 9)

The Planning and Development Act consistency requirement - content of

The MRS

The MRS Map
The MRS text content (or lack of content) as to zones
Clauses 21 and 25

WAPC submissions

Purpose of MRS zones
Contrast between TPS 6 and MRS
Consistency requirement
Regard to local government schemes

The applicant's submissions

Not to impede
The precision of the MRS Map
Clause 38 (and cl 39) of the MRS
Meaning of 'rural' in the MRS
The power to give approval under the MRS - clause 30
The justification for saying 'having regard to' is equivalent to 'must be'
Contention that only the first is a jurisdictional condition
Proper construction of 'having regard to'
Conclusion on cl 30(1)
Only the applicant's construction accords with the Planning and Development Act's purpose

Conclusion

Summary of conclusions

ARCHER J:

Introduction

The City of Gosnells wants to replace a facility which it calls its 'works depot'. The existing facility is in Maddington, but its location is no longer suitable.
The City proposes developing land in Wattle Grove (Site) to enable the operations carried out at the Maddington site to be carried out at the Site, as well as a number of other activities (Proposed Development).
The City's Infrastructure Directorate sought development approval for the Proposed Development under the two planning schemes that were applicable to the Site. First, it sought approval from the City's Development Control Unit under the City of Gosnells Town Planning Scheme No. 6 (TPS 6). Second, it sought approval from the Western Australian Planning Commission (WAPC) under the applicable region planning scheme, the Metropolitan Region Scheme (MRS).
Ultimately, the City and the WAPC approved the Proposed Development.
The applicant lives in Wattle Grove. The applicant seeks judicial review of the decisions of both the City and the WAPC to approve the Proposed Development, in two separate proceedings. These reasons deal with his application for review of the City's decision. However, as the application for review of the WAPC's decision raises similar issues, the parties in both matters agreed that the evidence in each proceedings would be admissible in the other, and that the submissions in each proceedings would also be taken to have been made in the other.
The applicant contends that neither the City nor the WAPC had the power to approve the Proposed Development. He contends that, given the location of the Site, the Proposed Development would involve 'uses' that were not able to be approved under the planning schemes.
The Site is zoned 'General Rural' under TPS 6. It is zoned 'Rural' under the MRS.
In relation to the City's power to approve the Proposed Development, the applicant submits that the Proposed Development would involve 'uses' that TPS 6 prohibits in a General Rural Zone (Prohibited Uses) and, therefore, the Proposed Development was unable to be approved.
The Proposed Development would involve activities such as green waste grinding. It would include a Waste Transfer Facility and a facility in which stray dogs could be kept. The applicant submits that each of these would be a 'use' of the Site, and that each was a type of use that is not permitted in a General Rural Zone.
The City contends that it did not need development approval under TPS 6, as the Proposed Development was a 'public work' it was entitled to undertake within the meaning of s 6 of the Planning and Development Act 2005 (WA). The applicant disputes this.
In the alternative, the City submits that the Proposed Development would involve only a 'Civic Use'. A Civic Use is permissible in a General Rural Zone. The City submits that all of the proposed activities and functions would be part of what it calls an 'Operations Centre'. It submits, therefore, that the Proposed Development would only involve a single Civic Use.
In the further alternative, the City submits that there would be at most two uses, but that both would be Civic Uses: one being the 'Operations Centre' and the other being the Waste Transfer Facility.
The City further contends that, if the green waste grinding would be a separate use, and if that use would be a Prohibited Use, the City would still have been able to approve such a use. In making this contention, the City relies on cl 3.8(a) of TPS 6. By that clause, where land was being lawfully used prior to TPS 6 becoming operative (an 'existing use'), the land can continue to be used in that way. The City submits that the green waste grinding was an existing use of the Site. It submits that, therefore, it had the power to approve a development which involved this use, even if it was a Prohibited Use. The applicant submits that the City could not rely on cl 3.8(a) because the City did not prove that the pre-conditions for the application of cl 3.8 had been met.
The applicant further contends that the City could not approve the Proposed Development as it involved uses that were inconsistent with the MRS Rural Zone. He relies on the regulatory framework that requires, among other things, local planning schemes to be consistent with region planning schemes. He submits that the regulatory framework operates to prevent a local government from approving a use on land that is inconsistent with the zoning of the land under the applicable region planning scheme. The City contends that that is not the effect of the regulatory framework.
In the other proceedings, the applicant similarly submits that the WAPC did not have the power to approve the Proposed Development because the uses were not 'consistent' with the MRS Rural Zone. In making that contention, the applicant relies on his construction of the WAPC power to approve developments under the MRS. The MRS clause which confers the power requires the WAPC to, among other things, have regard to the purpose for which the subject land is zoned under the MRS. The applicant submits that this means that the WAPC can only approve a development that is consistent with the MRS zone.
The WAPC participated in the proceedings only in relation to construction issues. It submits that its power to approve proposed developments is not limited to those which are 'consistent' with the applicable MRS zone. It submits that the applicable zone is simply one of the matters that it must take into account in exercising its discretion. The resolution of this issue is the focus of my reasons in the other proceedings. However, due to the overlap in the applicant's arguments, much of that analysis is contained in these reasons.[1]
[1] See the discussion under the heading 'Was the Proposed Development inconsistent with the MRS Rural Zone? (Issue 9)'.

Facts

The following facts were agreed (Agreed Facts).[2]
[2] Agreed Statement of Facts filed 1 March 2022.
Site of the Respondent's proposed Operations Centre
1.The site of the proposed Operations Centre (including the Waste Transfer Facility) together with the surrounding vegetated buffer, the subject of the Applicant's application for judicial review is:
(a)        Lot 239 on Plan 3327 (Volume 1463, Folio 89);
(b)Lots 241 & 242 on Plan 3327 (Volume 1031, Folio 307);
(c)        Lot 3 on Diagram 16433 (Volume 1184, Folio 164);
(d)        Lot 4 on Diagram 16433 (Volume 1688, Folio 285);
(e)Lot 500 on Deposited Plan 32254 (Volume 1436, Folio 456); and
(f)Lot 501 on Deposited Plan 32254 (Volume 1152, Folio 804),
(together referred to as the Site).
2.Each Lot within the Site is held in fee simple by the Respondent (the City).
3.The Site is located wholly within the local government district of the City.
4.The proposed Operations Centre has an area of 6.96 hectares containing each building and its curtilage. It comprises the central remediated portion of the former Orange Grove landfill site (landfill site). The proposal includes a 13.63 hectare vegetated buffer surrounding the Operations Centre, and the City has made available a further 28.6 hectares of [public open space] directly north intended as a further vegetated buffer. The total 49.19 hectares of the proposed New Operations Centre and buffers comprises the now disused landfill site, and is all owned in fee simple by the City.
5.The proposed Operations Centre including the Waste Transfer Facility would provide services and facilities to the community of the City's district.
6.The total 49.19 hectares of the proposed New Operations Centre and buffers is zoned Rural under the Metropolitan Region Scheme (MRS) and General Rural under the City of Gosnells Town Planning Scheme No. 6 (TPS 6).
7.The proposed New Operations Centre is required to replace the City's Current Operations Centre in Maddington.
The Applicant
8.The Applicant resides on, but does not own, a rural residential lot of 1.0337 hectares at 89 Victoria Road, Wattle Grove. The residence on 89 Victoria Road is, at its nearest point:
(a)approximately 350 metres from the northern boundary of the Site;
(b)approximately 500 metres from the northern boundary of the site of the Operations Centre; and
(c)approximately 550 metres from the nearest point of the Waste Transfer Facility.
The Development Application to the City
9.By letter dated 24 June 2020, the City's Infrastructure Directorate lodged a development application with the City's Development Control Unit which received and recorded the Application Description of the proposal as -
'Development Application - Lots 242, 241, 3, 4, 239, 500 and 501 Brock Street, Orange Grove - Operations Centre and Waste Transfer Facility' -
and recorded the Use Classes as 'Civic Use' and 'Use Not Listed' -'Waste Transfer Facility'.
10.The City Development Application was for an Operations Centre that would provide to the City of Gosnells community the services and facilities detailed in para.32 of the Affidavit of Martyn Anthony Glover sworn 24 January 2022, and filed in this matter (MA Glover Affidavit).
11.The New Operations Centre was proposed by the City as a composite use at which a range of activities would be carried on including those activities detailed in para.34 of the MA Glover Affidavit.
12.The City says but the Applicant denies, that 'All of those activities would be carried on at the New Operations Centre, as parts of a single enterprise, under the management and direction of the City's Infrastructure Directorate.'

Development Application to the WAPC and review by State Administrative Tribunal
13.On 12 May 2015, pursuant to clause 32 of the MRS, the Western Australian Planning Commission (WAPC) by resolution required all local governments within the MRS area to refer applications for development to the WAPC for determination when the WAPC advises the local government that the development is of State or regional importance or in the public interest.
14.By letter dated 3 July 2020, the City forwarded the City Development Application to the WAPC for determination by the WAPC in accordance with clause 32(2) of the MRS.
15.The letter of 3 July 2020 stated as a possible explanation for the clause 32 referral that the use in the application 'is a use that may not be consistent with the [MRS] Rural Zone'.
16.By letter dated 1 October 2020, the City advised the WAPC that the City Development Application could be 'called in' by the WAPC for determination under the MRS pursuant to clause 32(1) of the text of the MRS for public interest reasons.
17.By letter dated 2 October 2020, the WAPC 'called in' the City Development Application on the expressed basis that it would be in the public interest that a decision under the MRS on the City Development Application be made by the WAPC rather than by the City under delegation.
18.The City Development Application was considered by the Statutory Planning Committee (SPC) of the WAPC on 8 December 2020. A report was prepared by an officer of the Department of Planning, Lands and Heritage (DPLH) for the SPC on the MRS Development Application (DPLH Report).
19.The DPLH Report contained the officer's recommendation to the SPC as follows:
'That the Statutory Planning Committee resolves to refuse the use of Lots 3, 4, 48, 49, 239, 241 and 500 Brock Street and Lot 242 Kelvin Road as depicted on the application dated 7 August 2020 for the City of Gosnells Operations Centre, Waste Transfer Facility, Dog Pound, Mechanical Workshop, and Administration Building due to the following reasons:
1. The proposed land use is inconsistent with the 'Urban Expansion' designation in the South Metropolitan Peel Sub-Regional Planning Framework because it would be incompatible with future urban development of the site and the broader locality.
2. The proposed development is inconsistent with the Western Australian Planning Commission Development Control Policy 1.2: Development Control - General Principles because it would limit planning options for the future urban development of the area.

3. The proposed development is inconsistent with orderly and proper planning as set out in Clause 30(1) of the Metropolitan Region Scheme because the area is identified for future urbanisation where detailed planning would be required to determine the optimal land use and development layout, having regard to site constraints.'

20.The SPC by resolution refused the City Development Application for the reasons set out in the DPLH Report.
21.On 22 December 2020, the City filed an application with the State Administrative Tribunal (SAT) seeking review of the WAPC's decision to refuse the City Development Application.
22.Mediation in the SAT proceedings occurred on 15 February 2021 and 16 March 2021.
23.Following the conclusion of the mediation on 16 March 2021, the SAT made orders directing the WAPC to reconsider the City Development Application pursuant to section 31 of the State Administrative Tribunal Act 2004.
24.In April 2021, the City provided the WAPC with additional information regarding the City Development Application, in particular addressing the SPC's expressed concern that the proposal would be incompatible with future urban development of the Site and the broader locality.
25.On 3 August 2021, the SPC reconsidered the City Development Application. A report was prepared by an officer of the DPLH for the SPC for its reconsideration of the City Development Application.
26.The DPLH officer made the following recommendation to the SPC:
'Pursuant to Section 31 of the State Administrative Tribunal Act 2004, the Statutory Planning Committee resolves to reconsider its decision and approve the use and development of Lot 242 Kelvin Road and Lots 3, 4, 48, 49, 239, 241 and 500 Brock Street, Orange Grove for the City of Gosnells Operations Centre and Waste Transfer Facility as set out in the application dated 7 August 2020 and City of Gosnells Planning Report dated 1 April 2021 in accordance with plans 10381‑A01-B - 10381-A010-B and 10381-A026-C, subject to the following conditions…'

27.The SPC by resolution approved the City Development Application subject to 8 conditions.
28.The City says, but the Applicant denies, that 'The SPC decision was consistent with the requirement of clause 30 of the MRS that the decision-maker have regard to the purpose for which the subject land is zoned under the MRS, the orderly and proper planning of the locality and the preservation of the amenities of the locality.'
29.The City says, but the Applicant denies, that the 'MRS has no land use clauses or definitions, no zoning table, and no land use permissibility designations.'

Consideration by the Respondent
30.The City's Development Control Unit on receiving the Infrastructure Directorate's Development Application had considered and recorded the use classes in the proposal as 'Civic Use' and 'Use Not Listed' - 'Waste Transfer Facility', and the Chief Executive Officer of the City considered and adopted that classification.
31.On 14 September 2021, the Council of the City by Resolution 214 amended a Notice of Delegation 'to authorise the Chief Executive Officer of the Respondent to determine development applications that require the approval of the WAPC and the City where consultation has been undertaken in accordance with Local Planning Policy 4.1 Public Consultation, and the application has been determined by WAPC'.
32.Prior to 28 September 2021, the Chief Executive Officer issued an instrument of sub-delegation under which the City's Director of Planning and Development was authorised to determine the development applications set out in paragraph 31.
33.The sub-delegation to the Director of Planning and Development contained a condition that the delegation should not apply to any development with an approximate value of greater than $10 million.
34.On 28 September 2021, pursuant to the sub-delegation from the Chief Executive Officer, the Director of Planning and Development purported to approve the City Development Application subject to 6 conditions.
35.On 21 January 2022, the Chief Executive Officer of the City approved the City Development Application subject to the same 6 conditions.
36.The City did not deal with the City Development Application as a public work under section 6 of the Planning and Development Act 2005 (WA).
37.The City says, but the Applicant does not accept, that the reason for the fact in paragraph 36 above was that 'it was considered to be in the interest of transparency for the City to undertake the process of consideration and determination of the application under its TPS 6.'

In paragraphs 32 and 34 of the affidavit of Martyn Anthony Glover[3] (referred to in paragraphs 10 and 11 of the Agreed Facts), Mr Glover deposes:
[3] Affidavit of Martyn Anthony Glover sworn 24 January 2022 (Glover Affidavit).
32.The services and facilities to be provided from the proposed New Operations Centre would be as follows:
·Staff supporting the Operations function - initially accommodating up to 221 FTE staff members inclusive of outside staff and office staff members, with provision to accommodate up to 300 persons. The staff at the New operations Centre would include the following:
o   Administrative officers for the Engineering team, the Waste team and the Environment team;
o   Engineering services including Technical Services/Engineering Design and Administration;
o   Parks Operations team and Parks Construction team;
o   Depot for the City's Operation Vehicles;
o   Depot for Parks and Gardens Operations;
o   Storage and workshop area;
o   Community Services store;
o   Sign workshop;
o   Builders workshop;
o   General store to store items and materials to support the outside operations;
o   Mechanical workshop for the servicing and maintenance of the City's vehicles;
·Pound facility to cater for lost and misplaced animals collected by the City's Ranger Services;
·Waste Transfer Facility including:
o   Single municipal waste drop-off point for City's waste vehicles; and
o   Direct transfer to contractor lorries for transport to the Kwinana Waste to Energy Facility.
·Continuation of the shredding of green waste from the collection of street tree prunings in the City, and distribution as mulch for the City's parks and gardens. This activity is being carried on presently at the Site, and has been for some time before the closure of the landfill operation at the Site 23 years ago. The green waste shredding activity presently at the Site without the extensive environmental buffering measures proposed to be provided with the new Operations Centre.
…
34.The Operations Centre is a composite use, as appears from what I have said above, for instance in para.33. There is no doubt that we propose at the Operations Centre to carry out a range of activities including:
(a)Green waste shredding. Here what we are doing is mulching the prunings from the City's street trees, and using the mulch in the City's parks and gardens, and verge and median plantings;
(b)Workshop and general stores. To carry out all the technical services required on the City's properties, and where appropriate on ratepayer properties, it is necessary to use a wide range of equipment, and stores such as fencing and kerbing materials, fertiliser and pesticides. A workshop and general stores building is essential for the City's provision of services and facilities;
(c)Motor vehicle maintenance and servicing. The City maintains a substantial fleet of vehicles, and to keep them operating on a daily basis it is necessary to carry out day to day servicing and maintenance. Specialist repairs are contracted out to vehicle repair specialists;
(d)Chemical mixing. To maintain the City's substantial parks and gardens, and verge and median plantings, it is necessary to apply chemicals from time to time, and generally chemicals are purchased in concentrated form so that water or other solvents need to be added. That is the extent of the chemical mixing that would be undertaken in the Operations Centre;
(e)The Waste Transfer Facility is simply the end treatment of the waste collection activity which is required to be undertaken routinely by the City.   Waste collected from the district would not be stored or processed at the Operations Centre, but facility is provided for the waste collected from the district to be transferred to lorries owned and operated by independent contractors. The transfer of the waste collected by the City's trucks from the district is part of the handling of waste which is an important function of the Operations Centre;
(f)The animal pound will be located for convenience within the Operations Centre. It is a facility for holding animals lost or straying within the district until they can be collected by their owners or otherwise delivered to a place where they can be provided with longterm care. The pound will not be a kennel, as dogs will not be boarded, bred, or even kept in the ordinary sense on the premises. They will be held on a temporary basis until recovered by their owners or otherwise delivered to a place where they can be more appropriately kept.
Paragraph 33 of Mr Glover's affidavit (referred to in the first sentence of paragraph 34 of his affidavit) said:
In the application for development approval for the Operations Centre, the Waste Transfer Facility was mentioned as if it was a separate use. That was a result of the fact that the functioning of the Current Operations Centre does not include a Waste Transfer Facility, simply because there is no space for it on the current depot site.
Paragraph 25 of the Agreed Facts refers to a report for the Statutory Planning Committee of the WAPC for its reconsideration of the City's application. I will refer to this report as the 'WAPC Reconsideration Report'.[4] Paragraph 26 of the Agreed Facts states that that report referred to several plans, plans 10381-A01-B to 10381‑A010-B and 10381-A026-C. There was a typographical error in the reference in the report to plan 10381-A026-C, titled 'Site Plan: Site, Bund, Greenwaste Location and Building Locality Plan'. The '6' should have been a 'b'.[5] This plan, plan 10381-A02b-C,[6] had some red notations on it and was relied on by the applicant. I will refer to it as the 'Marked Plan'.
[4] Affidavit of Sally Patricia Grebe sworn on 24 January 2022 filed in CIV 2277 of 2021 (Grebe Affidavit) page 446.
[5] This was the view of both the applicant (ts 226) and the WAPC (ts 300). The City conceded it 'could be' - ts 395 - 396. There was no evidence of any plan with the designation '10381-A026-C'.
[6] Grebe Affidavit page 516.

The application for judicial review describes the ground of review as follows:
Several of the uses purportedly approved by the City are uses that are classified 'X' uses for the General Rural zone in the City's Local Planning Scheme No. 6, whereas X uses are incapable of approval by reason of clause 67(1)(a) of the Planning and Development (Local Planning Schemes) Regulations 2015 Schedule 2, namely the 'X' uses of:
(a)Green waste grinding.
(b)Workshop and general stores building.
(c)Motor vehicle repair.
(d)Chemical mixing use.
(e)Waste transfer facility.
(f)Dog holding facility (kennel).

Issues

The parties filed an agreed list of issues prior to the hearing. On further inquiry during the first day of the hearing, the parties agreed that one of the issues they had included on the list was not an issue, some amendment was required to other issues, and a new issue should be added.
Further, after the first day of the hearing, the City withdrew its contention that the applicant did not have a special interest sufficient to give him standing to seek a declaration.
In my view, the issues can best be described as follows:
Public Works
1.Was the Proposed Development a 'public work' that the City was entitled to undertake within the meaning of s 6 of the Planning and Development Act?
2.If the answer to question 1 is 'yes', did the City comply with s 6(2) of the Planning and Development Act in relation to the Proposed Development?
3.If the answer to question 2 is 'no', should the judicial review application nevertheless be dismissed as relief would be futile?
Development Approval
If the answer to any of questions 1, 2 or 3 is 'no', the following questions arise.
4.What is the proper approach to determining 'uses' in proposed developments?
5.What does 'Civic Use' mean in TPS 6? In particular, does it mean any governmental purpose?
6.What was the Proposed Development that was approved?
7.What was/were the 'use(s)' of the Proposed Development?
8.Was the green waste grinding an existing use, such that development approval could be given even if it was a Prohibited Use?
9.Was the Proposed Development inconsistent with the MRS Rural Zone?

Judicial review[7]

[7] This section draws upon and reproduces what I have written in earlier judgments.

In dealing with the application for judicial review, the court's jurisdiction does not extend to engaging in a review of the merits of the decision. The court's jurisdiction is confined to determining whether the decision-maker made a jurisdictional error in any of the challenged decisions.[8]
[8] The applicant did not allege errors of law on the face of the record.
In Re Refugee Review Tribunal; Ex parte Aala,[9] Hayne J explained:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[9] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88].
As was explained by the High Court in Hossain v Minister for Immigration and Border Protection,[10] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.
[10] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[11]
[11] Hossain [23], [27] (Kiefel CJ, Gageler and Keane JJ).
It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'.[12] It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness.[13]
[12] Hossain [29] (Kiefel CJ, Gageler and Keane JJ) quoting Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 [78].
[13] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle and Gordon JJ), and [134] (Edelman J). See also ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 [19] (Kiefel CJ, Bell, Gageler and Keane JJ).
Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[14]
[14] Hossain [24], [27] (Kiefel CJ, Gageler and Keane JJ).
Ordinarily, statutes conferring decision-making authority are interpreted as incorporating a threshold of materiality in the event of non-compliance.[15] To succeed in such a case, therefore, an applicant needs to prove that an error was material. That is, an applicant needs to prove that there is a realistic possibility that, if the decision-maker had not erred, a different decision could have been made.[16]
[15]Hossain [29] - [30] (Kiefel CJ, Gageler and Keane JJ). See also Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 [44] and MZAPC v Minister for Immigration and BorderProtection [2021] HCA 17 [31] - [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
[16] MZAPC [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). See also Nathanson v Minister for Home Affairs [2022] HCA 26 [30] - [33].

Approach to statutory construction

As was recently said by the Court of Appeal in Mohammadi v Bethune,[17] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.
[17] Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].
The approach is the same in construing local planning schemes. The 'context' includes the context within which planning schemes are made and used. In Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel,[18] Pritchard P said (citations omitted):
The construction of a local planning scheme, which constitutes subsidiary legislation, involves determining the objective meaning of the terms used, by the application of recognised rules of interpretation to the text, understood as a whole and in its context. The meaning must emerge from the statutory text, understood in its context, but also having regard to the statutory purpose being pursued.
It is well established that planning schemes should be construed broadly rather than pedantically, and with a sensible practical approach. That approach recognises that planning schemes are not usually drafted by parliamentary counsel and are often expressed in terms which lack the precision of a statute. That approach also recognises that the terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners, to identify the permissible uses of land to which a scheme applies. For that reason, the Court of Appeal has cautioned against placing a counter-intuitive judicial gloss on the plain language of planning schemes because to do so would reduce the capacity of the range of persons who use such schemes to comprehend their meaning. Nevertheless, the exercise of construction remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which, and purpose for which, it was enacted.
[18] Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160 [31] - [32].

Where there is a constructional choice, a construction that avoids an irrational or unjust outcome should be preferred.[19] However, as observed by Martin CJ in The Wilderness Society of WA (Inc) v Minister for Environment:[20]
There are limits upon the impact which an assessment of the hypothetical consequences of a particular construction will have upon the proper construction of a statute. Where the language of the statute is clear, the fact that negative consequences may flow from the application of a particular provision will not operate to change the proper construction applied to the section …
[19] Legal Services Board v Gillespie-Jones (2013) 249 CLR 492; [2013] HCA 35 [48], citing Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336, 350.
[20] The Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 [213].

It is particularly important to keep these limits in mind when construing planning schemes, which are used by a wide variety of people, often without legal assistance.

Construction of definitions

Ordinarily, definitions in a statute do no more than define the meaning to be given to a word used in the statute. That is, ordinarily, their only operation is to aid in the construction of the statute. This general rule may be modified by a clear contrary legislative intent.[21]
[21] Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; (2016) 256 CLR 437 [61] - [62].
In Kelly v The Queen,[22] McHugh J said:
[T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment…the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.

The ejusdem generis rule

[22] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103].

The parties refer to the 'ejusdem generis rule' in the context of two of the construction questions that arise in this case. The 'ejusdem generis rule' is that general matters are constrained by reference to specific matters.
Most significantly, the 'rule' is said to be relevant to the proper construction of 'Civic Use' in TPS 6, arising under Issue 5.[23] 'Civic Use' is defined as:
Premises used by a government department, an instrumentality of the Crown, or the local government, for administrative, recreational or other purposes.
[23] This is discussed under the heading 'Development approval - construction issues (Issues 4 and 5)', under the subheading 'What does 'Civic Use' mean? (Issue 5)'.
The parties disagree as to the meaning of the phrase 'or other purposes'.
In Deputy Commissioner of Taxation v Clark,[24] Spigelman CJ, with whom Handley J agreed, said:
[24] Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 [127] ‑ [128], [130].
127The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young (1999) 46 NSWLR 681 at [23]-[29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.
128As Dixon J said in Cody v J H Nelson (at 649):
'But the truth is that it is wrong to use the rule for an ejusdem generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter.' [Emphasis added.]
…
130Furthermore as Mahoney JA said in Mattinson v Multiplow Incubators Pty Ltd [1977] 1 NSWLR 368 at 375:
'There are frequently … several competing formulations of the genus. Which one is to be selected as the intended genus will, as it has been said, require that there first be ascertained what is the purpose of the statutory provision or the legislative intention as disclosed by it … and the exercise might then partake of the circuitous. The legislative intention to be derived from the words used is not ascertained by applying the ejusdem generis rule; whether and in what manner the rule is to be applied is to be determined after the legislative intention has first been assessed … If, in order to determine whether there is any, or what, genus, or whether the particular words exhaust that genus, it is necessary first to determine what was the relevant intention of that part of the legislation, the construction of the words may normally be best determined simply by reference to that intention, without the necessity of resorting to an artificial rule of construction.'
Further, s 17 of the Interpretation Act 1984 (WA) provides:
17.Disjunctive construction of 'or'
In relation to a written law passed or made after the commencement of this Act, but subject to section 3(3), or, other, and otherwise shall be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added.
Section 3 of the Interpretation Act provides:
3. Application
(1)The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law -
(a) express provision is made to the contrary; or
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
(c)in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application.
(2)The provisions of this Act apply to this Act as they apply to an Act passed after this Act commences.
(3)A reference in section 17, 25, 43(6), 50 or 64 to an Act, written law, enactment, or subsidiary legislation passed or made after the commencement of this Act shall be construed so as not to include any enactment which continues or directly amends, but does not repeal entirely, the text of an existing written law.
Both TPS 6[25] and the Planning and Development Act were enacted after the commencement of the Interpretation Act. Neither make express provision to exclude the application of the Interpretation Act.
[25] TPS 6 was gazetted on 15 February 2002. It also takes effect as if it was enacted by the Planning and Development Act by s 87(4) of that Act.
Accordingly, the ejusdem generis rule cannot be the starting point of the construction exercise of the meaning of the phrase 'or other purposes' in the definition of 'Civic Use' in TPS 6. Rather, the phrase will be construed disjunctively, unconstrained by the words 'administrative' and 'recreational', unless the intent and object of the Planning and Development Act (read to include TPS 6) or something in the subject or context of the Planning and Development Act (read to include TPS 6) is inconsistent with this construction.
The second construction question to which the 'rule' is said to be relevant is the meaning of 'work' in one of the relevant definitions of 'public work'. This question arises in relation to Issue 1. In that definition, general words are followed by specific words. I will discuss the application of the 'rule' to that definition, if any, in the next section. For the moment, I simply note that there is no reason why, to the extent that the 'rule' may apply, it cannot apply to a provision in which the general words are followed by specific words.[26]
[26] See Pearce D, Statutory Interpretation in Australia (9^th ed, 2019) [4.40].

Public works

Section 6 of the Planning and Development Act relevantly provides that nothing in the Planning and Development Act interferes with the right of various entities, including local governments, to undertake public works. Its effect is that, if a local government has a right to undertake a public work, it does not need to get development approval for that work.
The City submits that the Proposed Development was a public work that it had the right to undertake. The applicant disputes this.

Could the City undertake the Proposed Development as a 'public work'? (Issue 1)

Section 6 of the Planning and Development Act provides:
6.Act does not interfere with public works
(1)Subject to subsections (2) to (4), nothing in this Act interferes with the right of the Crown, or the Governor, or a public authority, or a local government -
(a)        to undertake, construct or provide any public work; and
(b)        to take land for the purposes of that public work.
(2)Rights referred to in subsection (1) are to be exercised having due regard to -
(a)the purpose and intent of any planning scheme that has effect in the locality where, and at the time when, the right is exercised; and
(b)the orderly and proper planning, and the preservation of the amenity, of that locality at that time; and
(c)any advice provided by the responsible authority in the course of the consultation required under subsection (3) in respect of the exercise of the right.
(3)At the time when a proposal for any public work, or for the taking of land for a public work, is being formulated, the responsible authority is to be consulted as to whether the undertaking, construction or provision of, or the taking of land for, the public work will be consistent with the matters referred to in subsection (2)(a) and (b).
(4)This section does not affect -
(a)        the application of section 5(2) and (3); or
(b)the application of a region planning scheme or an improvement scheme in relation to anything done, or proposed to be done, by a public authority that is not an agency of the Crown
I will refer to the entities listed in s 6(1) (being the Crown, the Governor, public authorities, and local governments) as the 'PDA s 6(1) entities'.
Planning schemes, such as the MRS and TPS 6, have effect as if enacted by the Planning and Development Act.[27] Accordingly, by s 6(1), nothing in the Planning and Development Act (read to include the MRS and TPS 6) interferes with the right of a PDA s 6(1) entity to undertake, construct or provide any 'public work', subject to subsections (2), (3) and (4).
[27] Sections 56(3) and 87(4) of the Planning and Development Act.
Section 6(2) and (3) set out conditions on the exercise of such rights.
Section 6(4)(a) provides that s 6 does not affect the application of s 5(2) and s 5(3) of the Planning and Development Act. Those sections provide that a region planning scheme and an improvement scheme binds the Crown.
Section 6(4)(b) provides that s 6 does not affect the application of a region planning scheme or an improvement scheme in relation to anything done, or proposed to be done, by a public authority that is not an agency of the Crown. I will refer to such an entity as a 'Non‑Crown' public authority.
Section 4 of the Planning and Development Act defines 'public authority' as meaning any of the following -
(a)a Minister of the Crown in right of the State;
(b)a department of the Public Service, State trading concern, State instrumentality or State public utility;
(c)any other person or body, whether corporate or not, who or which, under the authority of a written law, administers or carries on for the benefit of the State, a social service or public utility;
From the context of s 6,[28] and the Planning and Development Act as a whole, 'public authority' does not include local governments.
[28] See s 6(1), which refers to a 'local government' and a 'public authority' as alternatives.
Therefore, the effect of s 6 is as follows:
1.A Non-Crown public authority may exercise any rights to undertake, construct or provide any public work without needing to obtain development approval under a local government scheme. However, by the operation of s 6(4), a Non-Crown public authority would still need approval under a regional scheme.
2.Each of the other PDA s 6(1) entities (including local governments) may exercise any rights to undertake, construct or provide any public work without needing to obtain development approval under a local government scheme or approval under a regional scheme.
At the time of approving the Proposed Development, the City did not claim to be relying on any right to undertake a public work. However, if the City had the right to undertake the Proposed Development as a public work, and if the conditions in s 6(2) and (3) were satisfied, it would not matter if the City had erred in giving development approval.[29] If the City had the right to undertake the Proposed Development as a public work, it did not need development approval, provided it complied with the conditions in s 6(2) and (3).

'Public work' definition

[29] See Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 [85].

The phrase 'public work' is defined in s 4 of the Planning and Development Act to include:
(a)any public work as defined in the Public Works Act 1902;
(b)development in any area to which a region planning scheme applies if the development is of a class or kind designated as public work under the scheme;
(c)development in any area to which a local planning scheme applies if the development is of a class or kind designated as public work under the scheme;
For ease of reference, I will refer to this definition of 'public work' as the 'PDA Definition'.
I will refer to developments which would fall within paragraph (b) or (c) of the PDA Definition as 'Scheme Designated Public Work'.

As for paragraph (a) of the PDA Definition, 'public work' is defined in s 2 of the Public Works Act 1902 (WA) to mean and include:
(a)every work which the Crown, or the Governor, or the Government of Western Australia, or any Minister of the Crown, or any local authority is authorised to undertake under this or any other Act;
(b)any railway authorised by special Act or any work whatsoever authorised by any Act;
(c)tramways;
(d)any works for or in connection with the supply of water to, or for or in connection with the sewerage of, any city, town, or district, including all reticulations;
(e)buildings for the occupation of either or both of the Houses of Parliament or for public offices;
(f)hospitals, medical clinics, hostels and institutions including residences for staff, court‑houses, gaols, watch‑houses, lock‑ups, police barracks, or quarters;
(g)observatory;
(h)public schools or any other schools authorised to be established wholly or in part at the public cost by any Act in force for the time being, universities, colleges, technical and other educational institutions, including residences or hostels for teachers or students, and play‑grounds;
(i)public libraries, mechanics' or miners' institutes, agricultural halls, or schools of art;
(j)public housing;
(k)wharves, ferries, piers, jetties and bridges;
(l)parks or gardens or grounds for public recreation or places for bathing, and for the reclamation of land for or in connection therewith;
(m)public cemeteries;
(n)public wells or works for the conservation of water;
(o)the protection and preservation of any cave or place of scientific or historical interest;
(p)the protection and preservation of indigenous flora and fauna;
(q)the establishment of public abattoirs;
(r)harbours and ports, including the provision of storage, handling and wharfage areas and other facilities normally ancillary to the conduct of shipping operations, break‑waters, leading marks, navigational aids, docks, slips, the alteration or improvement of channels, waterways and rivers, the protection of foreshores and banks, the provision of new channels and related works, including the landing and disposal of silt;
(s)quarries or works for procuring stone, gravel, earth, or any other material required for the construction of, or any purpose connected with any public work as aforesaid;
(t)the procuring from land (other than Crown lands and public reserves) of timber, stone, gravel, earth and any other material required by or for the State for or in connection with the carrying on of any industrial or other undertaking or activity which is being carried on by or for the State under any law authorising the same;
(u)buildings and structures required for fire brigade purposes;
(v)the establishment and the extension by the Governor of sites for towns;
(w)the establishment and the extension by the Governor of agricultural research stations;
(x)drainage works in connection with any city, town, or district, and the improvement of rivers, watercourses, lakes, or inlets, including deepening, widening, straightening or otherwise altering, and disposal of silt;
(y)any building or structure of whatsoever kind which, in the opinion of the Governor, is necessary for any public purpose;
(za)any road, stock route, viaduct, or canal;
(zb)any work incidental to any of the aforesaid works;
(zc)any land required for or in connection with any work as aforesaid;
(zd)any survey in connection with any proposed public work;

For ease of reference, I will refer to this definition as the 'PWA Definition'.
Paragraph (a) of the PWA Definition refers to the Crown, the Governor, the Government of Western Australia, any Minister of the Crown, and any local authority. I will refer to these entities as 'PWA s 2(a) entities'. The term 'local authority' is defined in the Public Works Act to mean 'any local government or any other persons or body, however designated, having authority under any statute to undertake the construction of any public work'. This would include, for example, port authorities and the Water Corporation.
I will refer to the matters listed in paragraphs (b) to (zd) of the PWA Definition as 'Specified Works'.
The PDA Definition says that 'public work' includes the three matters listed. Generally, a definition that is framed inclusively expands the meaning beyond its ordinary meaning, so as to add the meanings given in the definition to the ordinary meaning. However, if it appears from the context that Parliament intended to confine the ordinary meaning of the word to the meaning conveyed by the matters specified in the definition, it will be taken to be exhaustive.[30]
[30] Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [139] - [141]. See also Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 [115].
The PWA Definition says that 'public work' means and includes the matters listed. Generally, the phrase 'means and includes' limits the meaning to the matters specified in the definition.[31]
[31] Pearce D, Statutory Interpretation in Australia (9^th ed, 2019) [6.9].
Having regard to the content of the PWA Definition, its incorporation into the PDA Definition, and the context and purpose of the Planning and Development Act, I consider that the PDA Definition is exhaustive. Accordingly, in the Planning and Development Act, 'public work' means:
(a)work which a PWA s 2(a) entity is authorised to undertake under this or any other Act;[32]
(b)Specified Works;[33] and
(c)Scheme Designated Public Work.[34]
[32] Being paragraph (a) of the PWA Definition, incorporated into the Planning and Development Act by paragraph (a) of the PDA Definition.
[33] The balance of the PWA Definition, incorporated into the Planning and Development Act by paragraph (a) of the PDA Definition.
[34] Paragraphs (b) and (c) of the PDA Definition.

I will refer to these matters collectively as 'Public Works'.

Singular 'work'

The applicant notes that the definitions refer to 'work' singular - using the phrases 'provide any public work' (rather than 'provide public works') and 'that public work'. He submits that this is significant. He submits it discloses a legislative intention that the elsewhere-expressed right will attach to specific public works or specific classes of works.[35]
[35] Applicant's Submissions filed 17 June 2022 in CIV 2277 of 2021 (Applicant's Submissions) [16].

The City pointed out that s 10(c) of the Interpretation Act provides that, in any written law, words in the singular number include the plural and words in the plural number include the singular.
Section 10(c), like the other provisions in the Interpretation Act, does not apply if the intent and object of the Act or something in the subject or context of the Act is inconsistent with the application of the section.[36]
[36] Section 3(1)(b) of the Interpretation Act.
The applicant submits that a contrary intention is here shown. He submits:[37]
[T]he intention here in section 6 is to deal with each public work as it comes to be assessed, whether it requires planning approval or not, and what steps have to be gone through for that public work. So, yes, we do say that in the interpretation of section 6, it's dealing with each proposed public work and expecting either a public work to be identified under [the] section 4 definition or a class of them.
[37] ts 214.
I accept that the text of s 6 suggests it was intended to operate in relation to specific public works or specific classes of public works. I will say more about the temporal component of the conditions in s 6, and other relevant contextual considerations, in the following discussion.

The bases for the City's claim to have the right

The City initially said that the Proposed Development was a Public Work because it was to be done pursuant to the City's right to provide services and facilities, under s 3.18(2) of the Local Government Act 1995 (WA) (read with s 3.1 and s 3.18(1)). It said, in effect, that providing services and facilities is work it is authorised to undertake under an Act, and is therefore work that falls within paragraph (a) of the PWA Definition.
In submissions filed after the first day of the hearing, the City raised an alternative basis on which it contended the Proposed Development was a Public Work. The City submitted that the Proposed Development fell within the PWA Definition because each aspect of it:
(a)was authorised by Acts other than the Local Government Act, and therefore fell within paragraph (a) of the PWA Definition or within the phrase 'or any work whatsoever' in paragraph (b) of that definition; and/or
(b)fell within one or more of paragraphs (c) to (zd) of the Specified Works in the PWA Definition.

I will first deal with the City's primary contention.

Did the City have the right under s 3.18(2) of the Local Government Act (paragraph (a) of the PWA Definition)?

As noted, the City's primary contention is that the work it is authorised to do under s 3.18(2) of the Local Government Act (read with s 3.1 and s 3.18(1)) is work it is authorised to undertake under an Act, and is therefore work that falls within paragraph (a) of the PWA Definition. It will be recalled that, by paragraph (a), 'public work' is defined to include
every work which the Crown, or the Governor, or the Government of Western Australia, or any Minister of the Crown, or any local authority is authorised to undertake under this or any other Act;

City's submissions

The City submits that the phrase 'every work which [any local authority] is authorised to undertake under this or any other Act' means anything that a local government is empowered to do by the Local Government Act. That is, it submits that anything that a local government is empowered to do by the Local Government Act falls within the PDA Definition of 'public work'.

Sections 3.1 and 3.18 of the Local Government Act

Section 3.1 and s 3.18 of the Local Government Act provide:
3.1.General function
(1)The general function of a local government is to provide for the good government of persons in its district.
(2)The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3)A liberal approach is to be taken to the construction of the scope of the general function of a local government.
…
3.18.Performing executive functions
(1)A local government is to administer its local laws and may do all other things that are necessary or convenient to be done for, or in connection with, performing its functions under this Act.
(2)In performing its executive functions, a local government may provide services and facilities.
(3)A local government is to satisfy itself that services and facilities that it provides -
(a)integrate and coordinate, so far as practicable, with any provided by the Commonwealth, the State or any public body; and
(b)do not duplicate, to an extent that the local government considers inappropriate, services or facilities provided by the Commonwealth, the State or any other body or person, whether public or private; and
(c) are managed efficiently and effectively.

The City points out that the approach to the conferral of powers on local governments has changed over time. More recently, a 'general competence' approach has been adopted. The City refers to comments made by the Minister for Local Government in the second reading speech of the Local Government Bill 1995:[38]
I now outline the broad background of the legislation. A major change introduced in the Bill is devolution to the local level of authority and decision making in many areas of local government activity. Whereas under the current Local Government Act there are approximately 150 areas where local governments must seek the approval of the Minister or Governor, the new Act will reduce these to about 30. This should enhance the efficiency of local governments in their overall operations. Local governments will also have increased functional autonomy. In contrast with the specific powers in the current Act, local governments will have general powers to make laws and provide services and facilities for the good government of people in their district. These are commonly referred to as general competence powers.
[38] Western Australia, Parliamentary Debates, Legislative Assembly, 31 August 1995, 7547.
As an example, the City points out[39] that, under the previous regime, a local government had the express power to construct an abattoir.[40] The establishment of public abattoirs is a Public Work, as it is listed in paragraph (q) of the PWA Definition. Accordingly, under the previous regime, the City had the express right to construct something that was a Public Work.
[39] ts 148 - 149.
[40] Section 512(c) of the Local Government Act 1960 (WA) (pre-amendment).
The City submits that, because it is part of its statutory function to provide services and facilities to the community within its district, providing services and facilities is providing Public Works.[41]
[41] See First Other Party's Amended Submissions to Accommodate the Reformulation of the Agreed Issues filed 22 June 2022 in CIV 2277 of 2021 (City's Submissions) [20] - [26] and the references in the following footnotes.
The City submits that the Proposed Development would provide services and facilities, and is therefore a Public Work. The City further submits that, if the Waste Transfer Facility is not treated as being included within the 'Operations Centre', it would itself be a Public Work. The City submits that this is because the City is authorised to provide a Waste Transfer Facility and the facility will be for the benefit of the community.[42]
[42] City's Submissions [27].
The City submits that s 3.1 of the Local Government Act requires a local government to perform its functions for the good government of people in its district. The City submits that it follows that the performance of functions not for the good government would not be a Public Work. It submitted, however (at least initially), that everything else done by a local government would be a Public Work.[43]
[43] ts 144.
The applicant submitted that the City's construction would mean that every matter specified in paragraphs (b) to (zd) of the PWA Definition would fall within paragraph (a) of the PWA Definition, making those paragraphs otiose. The City did not accept this. The City contended that those paragraphs confer power. It submitted that, if a local government has not been given the power under another Act to undertake one of the matters listed in those paragraphs, the presence of that matter in the list would give the local government the power to undertake that matter.[44]
[44] The City's submissions developed over the course of the hearing, but this was its ultimate submission - see ts 157 - 158 and ts 396 - 399. See also ts 69 (the applicant) and ts 87 - 89.
The effect of the City's contention would be, for example, that a local government not having been given the power to build a jail under any other Act, would be empowered to build a jail, under paragraph (f) of the PWA Definition.[45] This seems unlikely to have been intended.
[45] The City accepts that this was the effect of its construction - see ts 399.
More fundamentally, paragraphs (b) to (zd) of the PWA Definition are part of a definition. Ordinarily, definitions in a statute do no more than define the meaning to be given to a word used in the statute.[46] There is nothing in the Public Works Act to suggest that the general rule should be modified, still less a 'clear contrary legislative intent'[47] to the general rule. Accordingly, paragraphs (b) to (zd) of the PWA Definition do not confer power.
[46] See the discussion under the heading 'Approach to statutory construction'.
[47] Moreton Bay Regional Council [61] - [62].
Accordingly, the City's construction (that 'every work' in paragraph (a) of the PWA Definition means anything a PWA s 2(a) entity is authorised to undertake by any Act) would render paragraphs (b) to (zd) of the PWA Definition otiose.
The City also initially resisted the contention that its construction would mean that every office renovation, tree planting and lawn mowing it did would be a Public Work.[48] After some further exchanges, its counsel said that, if the City was mowing verges of streets within its district:[49]
I can't see any problem with that being identified as being part of or included in a public work which they have authority to provide.
… I wouldn't accept that the lawnmowing would be identifiable independently as a public work. I think that it would be an incident or an activity involved in an identifiable public work. But without - if the Local Government was challenged for mowing - using lawnmowers to mow its street verges, then I suppose its answer would be, well, that is involved in a public work that we're authorised to carry out.
[48] ts 158 - 159.
[49] ts 159.
The City later qualified its earlier position, and said that it was not submitting that everything that the City was authorised to do by way of providing facilities and services for the benefit of the community would be a Public Work. It said that matters that were incidental to providing good government would not be a Public Work, such as a staff Christmas party.[50] However, it continued to contend that everything that the City was authorised to do by way of providing facilities and services and which was done for the good government of people within the district would be a Public Work.[51]
[50] ts 159 - 160.
[51] ts 161.
The City appeared to acknowledge that this would require an assessment to be made as to whether services were being provided for that purpose.[52]
[52] ts 191.
The applicant contended that the City's construction would mean that the City would have to go through the process required by s 6(2) of the Planning and Development Act for each such service, including services such as lawn mowing. It will be recalled that, by s 6(2), the right to undertake public work is to be exercised having due regard to:
(a)the purpose and intent of any planning scheme that has effect in the locality where, and at the time when, the right is exercised; and
(b)the orderly and proper planning, and the preservation of the amenity, of that locality at that time; and
(c)any advice provided by the responsible authority in the course of the consultation required under subsection (3) in respect of the exercise of the right.
The applicant contended that, on the City's construction, the City would need to have due regard to the three matters listed in s 6(2) before it could carry out any service.
The City said, however, that it would only need to have regard to those three matters prior to the first time it provided such a service, and not on each subsequent occasion.[53]
[53] ts 161.
I do not accept the City's submission. If 'public work' is to be interpreted as broadly as the City submits, there would be no reason to interpret s 6(2) so narrowly. Further, s 6(2)(a) and (b) make it plain that the required process is temporally connected to the time the right is exercised.
That said, the City would only need to go through the process if it sought to rely on s 6 in order to avoid having to obtain development approval. It seems unlikely that the City would need development approval to mow verges. However, the City did not assert that it did not need development approval for such an activity, and did not raise this as a reason to reject the applicant's contention. Had it mattered, I would have expressly raised this with the parties and given the parties the opportunity to be heard. However, as I will later explain, even disregarding the applicant's contention that the City would need to go through the process each time, I do not accept the City's construction. Therefore, resolving the significance (if any) of the applicant's contention will not affect the outcome and I will put it aside.

Applicant's submissions

The applicant submits that s 6 of the Planning and Development Act is not engaged, because the Proposed Development is not a Public Work.

Taking of land

The applicant first submits that, in construing the PDA Definition of 'public work', and in determining whether an entity has the right to undertake such work, it is relevant to consider the significance of work being 'public work'.
The applicant points out that the expression 'public work' is used to allow the compulsory acquisition of land from citizens.[54] It says that that expression (and the word 'work' where that is used as an abbreviation) must therefore mean only 'big, important things'.[55]
[54] See s 151 and s 161 of the Land Administration Act 1997 (WA).
[55] ts 207.
The applicant notes that s 6(1)(b) of the Planning and Development Act itself refers to the power to take land for the purposes of a 'public work'. The applicant acknowledges that a local government does not itself have the power to take land to carry out a 'public work'.[56] If a local government requires land to be compulsorily acquired, this can only be done by the Minister. However, the applicant submits that this is simply consistent with a legislative intention that there be central oversight of public works.[57]
[56] See Part 9 of the Land Administration Act. Local governments do have powers to take land for the purpose of a planning scheme with the consent of the Governor - see s 191 and s 192 of the Planning and Development Act.
[57] ts 208.
There is merit in the applicant's submissions. The fact that legislation permits land to be compulsorily taken from citizens for a 'public work' does suggest that 'public work' means something more significant than every service a local government may provide. It is a factor that weighs against the City's construction.

Distinctly given in other Acts

The applicant further submits that, where the legislature intends to give an entity the right to undertake a public work, the right is given distinctly.[58] The applicant refers to provisions in other Acts which refer expressly to 'works' or 'work', such as s 35(2)(c) of the Port Authorities Act 1999 (WA), s 27(1)(c) of the Water Corporation Act 1995 (WA), s 35(f), s 41(i) and s 50(j) of the Electricity Corporations Act 2005 (WA), and s 21 of the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act).
[58] ts 276 - 277.
The applicant contrasts these provisions with s 3.1 and s 3.18 of the Local Government Act.[59] He submits that those provisions are simply not specific enough.
[59] And s 50(1) of the Waste Avoidance and Resource Recovery Act 2007 (WA).
In addition, the applicant notes that the Local Government Act itself expressly empowers local governments to undertake certain 'works', none of which would encompass the construction of the Proposed Development.[60] The applicant says this is to be considered in the context that the Planning and Development Act also uses the expression 'public works' and sets out a process by which a local government can be empowered to carry out public works.[61]
[60] Local governments may undertake works for drainage or to prevent or reduce flooding (schedule 3.2 Items 1 and 2) or works required for the supply of gas or water (schedule 9.1 Item 11), which a local government is empowered to do on land that is not local government land (s 3.27). The applicant also accepted that a local government has the power to construct roads in road reserves, by s 3.18 of the Local Government Act and s 55 of the Land Administration Act.
[61] This process is discussed next, in dealing with the applicant's submission in relation to central oversight.
Again, I consider this submission has merit. Plainly, it is possible for a legislature to specifically describe functions or activities as 'works'. The legislature has chosen to do so in the Local Government Act in relation to limited and specified works. By contrast, s 3.1 and s 3.18 describe general functions of good government and the provision of services and facilities. This is another factor that weighs against the City's construction.

Central oversight

The applicant next contends that, on his construction, there will be oversight of public works undertaken by a local government. He contends that, if the City's construction is correct, it could undertake public works without any oversight. He submits that that would be inconsistent with the legislative purpose. He notes that oversight is required of local government works under one of four processes.[62]
[62] Applicant's Submissions [27].
First, works may be included in a scheme.

By s 69 of the Planning and Development Act, a local planning scheme may make provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.
Schedule 7 is titled 'Matters which may be dealt with by planning scheme'. Item 5 of schedule 7 provides:
Roads, public works, community infrastructure, reservation of land, provision of facilities
(1)Roads, intersections, corners and all objects, works, trees or shrubs associated with, constructed or located on, below or adjacent to roads, intersections and corners.
(2)Public works and undertakings of any kind including lighting, water, sewerage, drainage, public transport and associated facilities on land and water.
(2A)Community infrastructure, including community centres, libraries, schools and other educational facilities, childcare centres (including outside school hours care services) and sporting facilities.
(3)The reservation of land for public purposes.
(4)The provision and location of public facilities and conveniences and any other objects or works on the land.
(5)The designation of classes or kinds of development as public work.
If a scheme permits the local government to undertake a specific public work, such work would fall within paragraph (a) of the PDA Definition of 'public work'.[63] If a development of a class or kind is designated as public work under the scheme, developments of that class or kind would fall within paragraph (c) of the PDA Definition of 'public work' (which, with similar designations under region planning schemes, I refer to as 'Scheme Designated Public Work').
[63] As a scheme takes effect as if enacted under the Planning and Development Act, it would fall within paragraph (a) of the PWA Definition.

The City also referred[282] to a decision by the Town Planning Appeal Tribunal of WA, Dawe v Town Planning Board, in which it was said:[283]
The designation 'Rural' is not in our opinion related to the preservation or creation of viable agricultural units. … 'Rural' is the opposite of 'Urban': Plan for the Metropolitan Region: Perth and Fremantle, 1955 (The Stephenson Report) at pp.201 and p.203.
[282] City's Supplementary Submissions [2.5].
[283] Dawe v Town Planning Board (Unreported, TPAT Appeal No. 5/1979, 17 December 1979) 9 ‑ 10 (David Malcolm QC, as his Honour then was, presiding as Chairman). See also Newco [73].
The WAPC and the applicant broadly agreed.[284]
[284] See the WAPC's Supplementary Submissions [14] and the Applicant's Supplementary Submissions [12] and the second [2].
The WAPC submitted (citations omitted):[285]
Land zoned Rural under the MRS represents land designated from a broader, regional, perspective as being suitable or appropriate for a broad range of activities (or uses) having a rural character - as reflected in the excerpts cited by the City at [2.2] to [2.5] of their further submissions, a 'not urban' character. As recognised in State Planning Policy 2.5 - Rural Planning, a State planning policy made under Part 3 of the PD Act, rural land accommodates a diverse range of land uses. This is also recognised in the objectives of the local scheme zones (such as Rural and Rural Residential) provided in cl 16 of the model provisions for local planning schemes (Schedule 1 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)).
The meaning of the MRS Rural zone can also be ascertained by reference to the ordinary and common meaning of the term 'rural', informed by the context in which it is used. The ordinary meaning of 'rural' suggests something that 'relates to, or is characteristic of the country as opposed to a town or city' or is 'carried out' or 'situated' in the country. As such, 'rural' does not necessarily mean 'agricultural purposes', although of course the term would encompass such land uses. It does not mean 'transitional'.
…
Under the MRS, 'Rural' falls to be construed in a manner that recognises the function of the MRS as a broad strategic (general blueprint) planning instrument for the metropolitan region.
As such, in the MRS 'rural' should not be given a narrow meaning that implies a homogeneity or inflexibility in permissible land uses. It also is not merely a 'transitional' zone and should not be equated to 'future urban'. Rather, the Rural zone is an area generally having genuinely rural characteristics. A broad range of activities (some of which may not be 'rural' per se) may be carried out in a particular area while that area still retains this rural (not urban) character.
[285] WAPC's Supplementary Submissions [14] - [15] and [18] - [19].
The State Planning Policy referred to by the parties indicated that the WAPC policy is to promote rural zones as 'flexible zones that cater for a wide range of land uses that may support primary production, regional facilities, environmental protection and cultural pursuits'. The Policy also said that the WAPC policy is to support small scale tourism opportunities in rural zones. In addition, the Policy stated that some rural land may be suitable to accommodate 'regional attractors or facilities such as sporting or entertainment venues, places of worship, prisons cemeteries and waste facilities'.[286]
[286] See above under the subheading 'Must have regard to planning policy' under the heading 'Local scheme requirements'.
I accept that the ordinary meaning of 'rural' means relating to the countryside rather than to towns, and generally connotes an association with, or origin in, agriculture, horticulture or grazing. I accept that, in the context of the MRS, it means something not of an urban character. I further accept, given the purpose of the zoning and the MRS as a whole, that it should not be given a narrow meaning.
In addition, I accept that the MRS Rural Zone has a meaning different to the other seven MRS zones.
In relation to the local government rural zones set out in the Model Provisions, I accept that it would be possible to identify some uses that would be consistent with the objectives of those zones. It would also be possible to identify some uses that would not be consistent. Between those two groups, there would be a number of uses that could not be easily categorised.
This does not mean, however, that development approval can only be given in local planning scheme rural zones for uses that can be identified as rural. Indeed, the fifth bullet point in the list of objectives for 'Rural' in the Model Provisions table is '[t]o provide for a range of non‑rural land uses where they have demonstrated benefit and are compatible with surrounding rural uses.' Plainly, the legislature contemplated that non‑rural land uses could be approved in areas zoned 'Rural' in a local planning scheme.
Further, the objectives in the Model Provisions are proposed objectives of the proposed zones in a local planning scheme. Local planning schemes and region planning schemes are different creatures created under different parts of the Planning and Development Act. The Planning and Development Act does not require that local zones be a subset of region planning scheme zones. It requires that local planning schemes not be inconsistent with their applicable region planning scheme. Some region planning schemes are very detailed and therefore impose a greater restriction on what can be contained in a local planning scheme (in order for the local planning schemes to be consistent with them). The MRS is not such a scheme. In particular, it does not purport to prescribe the uses which may be approved in its zones.
I will say more about the meaning of 'rural' in the MRS later.[287]

The power to give approval under the MRS - clause 30

[287] See under the heading 'Conclusion'.

The applicant's submissions in these proceedings are directed to the City's approval of the Proposed Development under TPS 6. However, some of the submissions he made in the other proceedings (challenging the WAPC's approval of the Proposed Development under the MRS) are relevant to the proper construction of the MRS zones, and hence to the City's power to give development approval under TPS 6. Accordingly, I will discuss those submissions in these reasons.
The applicant contends that the WAPC does not have the power to approve uses that are not consistent with the MRS zone.
The applicant notes that cl 30(1) of the MRS expressly requires the WAPC to have regard to the purpose for which the land is zoned or reserved under the MRS in considering whether to approve a proposed development under the MRS. The applicant submits that, therefore, the MRS expressly recognises that MRS zones have a purpose.[288]
[288] ts 343.
I accept this.
The applicant then submits that 'the phrase … "having regard to the purpose for which the land is zoned or reserved under the Scheme" means remaining consistent with those purposes (unless the MRS or [Planning and Development Act] allows otherwise)'.[289] He contends that the expression 'having regard to' means that approval can only be given if the proposed development is consistent with the MRS zone. This was, in effect, a contention that consistency with the zone is a condition which must exist before the WAPC would have the power to approve a proposed development ('jurisdictional condition'). This contention requires some analysis.

The justification for saying 'having regard to' is equivalent to 'must be'

[289] Applicant's Submissions [88] and [93].

In explaining how he justified construing 'having regard to' the purpose for which the land was zoned as a requirement that the proposed development must be consistent with the purpose, the applicant expressed his propositions as follows:[290]
1.The region planning scheme is statutory, and has effect as if enacted by the Planning and Development Act.
2.The MRS zones have a particular purpose (shown by the express reference in cl 30(1) to 'the purpose for which the land is zoned').
3.Section 124(2) of the Planning and Development Act refers to the implementation of the MRS scheme, by which it means or includes the implementation of the MRS zone on the land it encompasses.
[290] ts 350.
The applicant submits that these all irresistibly point to there being a statutory regime of only rural uses in MRS Rural Zones.[291]
[291] ts 350 - 351.
In relation to the first proposition, as the WAPC pointed out, just because a scheme takes effect as if enacted by the Planning and Development Act, this does not mean it must be interpreted as containing only prescriptive specific limits. Legislation is replete with objects clauses, purposes clauses, and the conferral of discretions.[292]
[292] ts 402.
In relation to the second proposition, I accept that the reference in cl 30(1) to 'the purpose for which the land is zoned' shows that MRS zones have a purpose. However, I do not accept that it follows that cl 30(1) means that approval cannot be given under the MRS if the proposed development would be inconsistent with the purpose of the applicable MRS zone. Clause 30(1) does not say that, and it would have been easy to have drafted it so that it did. Further, the broader context of the MRS does not support such a construction.
In relation to the third proposition, I accept that s 124(2) of the Planning and Development Act is directed to ensuring that the ongoing implementation of a region planning scheme is not impeded. However, whether approving an industrial use in an MRS Rural Zone would impede the implementation of the MRS (regardless of the nature and scope of the use in the context of the location of the land) depends upon the proper construction of the effect of the MRS designating the zone as a Rural Zone. This is the issue in dispute.

Contention that only the first is a jurisdictional condition

The applicant did not accept that his contention would mean that each of the matters listed in cl 30(1) would be (or reflect) jurisdictional conditions, as distinct from mandatory considerations.[293] He said[294]
if you look at the syntax [of cl 30(1)], after the word[s] 'thinks appropriate,' there's a semicolon and it says:
And having regard to the purpose for which the land is zoned -
and then there's a comma, as a separate matter:
The orderly and proper planning of the locality.
So if under the first step having regard to the purpose that the land is zoned the decision is made that, 'Yes, it is within the purpose for which the land is zoned,' then there's a second step. You look at whether there is orderly and proper planning.
[293] ts 352 - 353.
[294] ts 353.
I do not accept this. It will be recalled that cl 30(1) of the MRS relevantly provides:
The [WAPC] may consult with any authority that in the circumstances it thinks appropriate; and having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality may, in respect of any application for approval to commence development, refuse its approval or may grant its approval subject to such conditions if any as it may deem fit.
The applicant's contention is, in effect, that the words 'having regard to' attach only to the phrase 'the purpose for which the land is zoned or reserved under the Scheme'. This construction would render cl 30(1) nonsensical. What would be the operation of the phrases 'the orderly and proper planning of the locality' and 'the preservation of the amenities of the locality', if the words 'having regard to' did not apply equally to them?
In my view, cl 30(1) sets out three matters to which the WAPC must have regard. If, as the applicant contends, the requirement to have regard to the purpose for which the land is zoned means that consistency with the zone is a jurisdictional condition, each of the three matters would be jurisdictional conditions.

Proper construction of 'having regard to'

In discussing the regulatory framework, I noted that the requirement in cl 67 of the Deemed Provisions to 'have due regard to' means that the local government must give active or positive consideration to the matters listed, to the extent that they apply in any particular case. I also said that I would later discuss the applicant's contention that the requirement that the WAPC 'have regard to' bears a different meaning. What follows is that discussion.
The applicant acknowledged that the expression 'having regard to' (and similar ones) had been interpreted in other contexts to mean something less than a jurisdictional condition. However, he pointed out that it was a question of statutory interpretation, and that it was not inevitable that it would take that meaning in all contexts. He submitted that a 'much more rigorous meaning' was required in this context, otherwise 'you do the roundabout'.[295] By this, the applicant meant that, if a contrary construction was adopted, cl 30 would be invalid by virtue of being inconsistent with something higher in the legislative hierarchy.
[295] ts 352.
When pressed on this, the applicant conceded that this could not apply to cl 30 of the MRS. The MRS zones are not above cl 30 in the hierarchy. The Map and text are both part of the MRS.[296]
[296] See ts 367 - 369.
Accordingly, the expression 'having regard to' in cl 30 does not need to be interpreted as a jurisdictional condition.
In Marshall v Metropolitan Redevelopment Authority, Pritchard J[297] considered the meaning of 'have regard to' and 'have due regard for' in the context of the MRA Act. Section 66(1) of the MRA Act provided that, '[i]n considering a development application, the Authority must have regard to' five listed matters. The first of those matters was 'the approved redevelopment scheme that applies to the land on which the development is proposed'. The relevant redevelopment scheme was the 'CPR Scheme'. Clause 5.22 of that scheme provides that the Authority 'shall have due regard for' eight listed matters.
[297] As her Honour then was.
The 'Authority' in both s 66 and cl 5.22 was the Metropolitan Redevelopment Authority (MRA).
Her Honour said (citations omitted):[298]
107The word 'regard', when used as a verb, is synonymous with 'consider' and 'take into account'. In other words, the phrase 'have regard to' (or 'have due regard for') requires the MRA to take into account, or give consideration to, the matters listed. In my view, s 66(1) of the MRA Act and cl 5.22 of the CPR Scheme together identify the relevant considerations which the MRA is required to take into account in considering a development application.
108The question which then arises is the extent to which the MRA is required to give consideration to those matters. There are divergent authorities about the content of a requirement for a decision-maker to take into account relevant considerations when exercising a statutory power. One line of authority is to the effect that provided the relevant matter is given some consideration, the duty is discharged. The alternative line of authority, which has received support in this State, is to the effect that the requirement to take into account a relevant consideration is a requirement to give proper, genuine and realistic consideration to the relevant matter.
109However, in every case, the content of an obligation on a decision-maker to take into account relevant considerations - or, as in this case, to 'have regard to' or to 'have due regard for' particular matters - must be determined by a process of statutory interpretation. That process requires that the words used in the statute be construed within their statutory context.
[298] Marshall v Metropolitan Redevelopment Authority [107] - [109].
Her Honour found that, in the context of the MRA Act, the phrase 'have due regard for' and 'have regard to' required the MRA to take into account, or give consideration to, the matters listed. Her Honour found that, in the context of that Act, the requirement meant that the Authority must give 'active or positive consideration to the matters listed, to the extent that they apply in any particular case'.[299] As said earlier, this is also the meaning that has been given to the phrase 'have due regard to' in cl 67 of the Deemed Provisions.[300]
[299] Marshall v Metropolitan Redevelopment Authority [115].
[300] See, for example, Milem [67] - [76] and General Nominees [85] - [87] and [105]. See also City of South Perth [46], [59], [61] and Aloi Holdings [161] - [162] (Quinlan CJ).
In reaching this conclusion, Pritchard J noted, among other things, the variety of matters which the MRA was required to consider by s 66 and that the matters were not of a substantive or measurable kind (for example, they did not require the MRA to be satisfied of the existence of particular facts, criteria or effects).[301] Her Honour also noted that the matters included the applicable redevelopment scheme (the CPR Scheme), and that '[s]uch planning instruments will typically set out broad guidelines or objectives for the use of land in a particular area, and will leave a large measure of discretion for a decision‑maker to determine whether a proposed development is consistent with those guidelines or objectives'.[302] Her Honour further noted that a provision in the MRA Act which required the MRA to act in accordance with the CPR Scheme did not affect the MRA's discretion under s 66(1).[303]
[301] Marshall v Metropolitan Redevelopment Authority [110].
[302] Marshall v Metropolitan Redevelopment Authority [110].
[303] Marshall v Metropolitan Redevelopment Authority [113].
Clause 30(1) of the MRS requires the WAPC to have regard to 'the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality'. Plainly, the three matters may not all point in the same direction.
Further, the second matter would involve an exercise of judgment. What will warrant consideration in determining what would constitute orderly planning will be a question of fact to be determined having regard to the circumstances of each case.[304]
[304] S & L Lenz [137].
In my view, there is nothing in the MRS to suggest that the phrase 'have regard to' in cl 30 should be given a meaning different to the meaning of that phrase in the similar context of the MRA Act and the phrase 'have due regard to' in cl 67 of the Deemed Provisions. On the contrary, I consider that the words in cl 30, and the context in which cl 30 appears, indicate that that is the meaning of the phrase. Part of that context is that the MRS is a scheme which applies, among other things, to planning approvals. Flexibility is desirable in the planning context.[305]

Conclusion on cl 30(1)

[305] Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210 [26].

I do not accept that cl 30(1) contains or reflects a jurisdictional condition requiring some concept of 'consistency' with the MRS zone before the WAPC has the discretion to consider whether approval should be given. I consider that cl 30(1) confers a discretion on the decision-maker, to be exercised having regard to the three matters listed. That is, it sets out three matters that must be considered. It does not list conditions that must be met before approval may be given. Each of the matters is a mandatory consideration in a discretionary decision, not a jurisdictional condition.
In my view, the WAPC is simply required to give active or positive consideration to each of the three matters.[306]

Only the applicant's construction accords with the Planning and Development Act's purpose

[306] The qualifier 'to the extent that they apply in any particular case' is unnecessary in this context. This is because each of the three matters would apply to every case.

In his written submissions, the applicant submitted that there were five reasons why only his construction accorded with the legislative purpose of consistency.[307] During the hearing, the applicant clarified that what was described as the final point was actually a conclusion.[308]
[307] Applicant's Submissions [89] - [94], referring to s 18 of the Interpretation Act which provides 'In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object'.
[308] See ts 339 in relation to the Applicant's Submissions [94].
First, the applicant submits that, if his construction is not adopted,[309]
clause 30(1) would allow, not merely slight, small-scale inconsistencies, but widespread and thorough-going inconsistencies. The WAPC could approve an industrial complex in a high-density residential zone. The provisions in the [Planning and Development Act] allowing amendments to the MRS, with consultation and tabling before Parliament, would all be for nought: see for examples, sections 42, 43, 53 and 56 of the [Planning and Development Act].
[309] Applicant's Submissions [90].
I do not accept this, for the following reasons.
First, the submission assumes that the consistency required by the Planning and Development Act requires consistency with the MRS zones. This is the issue in dispute. If it does not require that, the provisions to which the applicant refers would not be 'for nought' on the WAPC's construction.
Second, if the WAPC made a decision that was legally unreasonable, it could be quashed in a judicial review application. While a high bar is set for the satisfaction of legal unreasonableness as a ground of judicial review,[310] it would likely be met if the WAPC decided to approve an industrial complex in a high-density residential zone.
[310] See Sanders [226] - [234]. The test is not whether the decision should have been made. The test is whether it could have been made.
Third, on the applicant's construction, there would be no discretion to approve any use that was not strictly rural in an MRS Rural Zone.[311]
[311] The applicant accepted this - see ts 351 - 352. See also ts 369 - 371.
Importantly, this would mean that a proposed development could not be approved even if only one of the proposed uses was not strictly rural. By cl 30(4) of the MRS, where a building or land is used or a proposed building is designed for more than one use, it shall be regarded for the purposes of the MRS as being used or designated partially for each of those uses.
It is unlikely that it was intended that it would be impossible to approve a development involving multiple uses, only one of which was not strictly rural, in MRS Rural Zones. Flexibility is desirable in the planning context. The size, nature and impacts of proposed developments are infinitely variable.
The WAPC pointed out that, on the applicant's construction, it would be impossible to approve any proposal that is properly characterised as partially urban and partially rural.[312]
[312] ts 319.
In my view, this is a factor that weighs heavily against the applicant's construction. It is unlikely that the legislature would have intended that the planning regime would not be able to accommodate such a situation.
The applicant's second reason relates to EPA clearance. He submits that the regime for environmental approval under the Planning and Development Act (EPA approval regime) is done at the MRS and local scheme amendment level, rather than at the development-by-development level. He submits, in effect, that, if development approval could be given for developments that were inconsistent with an MRS zone, this would not be captured by the EPA approval regime. He submits that it follows that, unless his construction is accepted, that regime would be circumvented.[313]
[313] Applicant's Submissions [91], referring to s 38 and s 39 of the Planning and Development Act (and 'the corresponding provisions' in the Environmental Protection Act).
I do not accept that this is a factor in favour of the applicant's construction, for the following reasons.
First, in considering proposed local planning schemes, the EPA is able to consider the proposed permitted uses for each zone.
Second, any development application requires approval from the local government and the WAPC. Approvals can be challenged in judicial review proceedings.
Allowing for the possibility that jurisdictional error may be found does not require acceptance of the applicant's proposition. Nor is it necessary to delineate when an approval might be found to involve jurisdictional error under either TPS 6 or the MRS. However, rejecting the applicant's construction does not mean, for example, that an enormous chemical mixing plant in the MRS Central City Area zone could validly be approved. It might be considered that such an approval under the MRS would be legally unreasonable,[314] as, for example, it could not have been made if active consideration had been given to the mandatory consideration of the purpose for which the area is zoned Central City Area. Similar examples can be imagined in relation to approvals under TPS 6, in which it would be clear that one or more of the mandatory relevant considerations in cl 67(2) of the Deemed Provisions could not have been considered.
[314] As to which see Sanders [226] - [234].
Third, while I accept that a central purpose of the legislative regime is to control what occurs on land, I do not accept that it is intended to be so prescriptive as to remove any room for discretion. On the contrary, having regard to the legislative framework as a whole, it is plain that the legislature intended to confer discretion on the various authorities so that some flexibility is possible.
Fourth, and compellingly, the WAPC pointed out that the EPA came into effect after the MRS. Therefore, its terms cannot be used to interpret the MRS.
The applicant's third reason is that he contends that the City's interpretation would mean that the legislative regime would allow the WAPC to approve a development (under the MRS) that the local government could not approve under TPS 6, based on exactly the same point - whether the development was consistent with the MRS.[315]
[315] Applicant's Submissions [92].
It is not entirely clear to me why the applicant submits that the City's interpretation would mean that the decisions would be made on the same point. The City does not contend that the WAPC can approve a development that is 'inconsistent with the MRS'. It disputes the applicant's contention that cl 30(1) of the MRS means that the WAPC can only approve, in Rural zones, developments that involve only strictly rural uses.
In any event, a system in which dual approvals are required implicitly acknowledges that the two decisions may not be the same. If that were not possible, there would be no point in requiring two. Different outcomes may simply reflect the different factors relevant to each approval process.
The applicant's fourth reason was, in effect, his contention that the expression 'having regard to' meant that consistency with the zone was a jurisdictional condition to the WAPC's power under cl 30 to approve a development.[316] I explained why I rejected this contention in the previous section.

Conclusion

[316] Applicant's Submissions [93].

By s 123 and s 124 of the Planning and Development Act, a local planning scheme must be consistent with the applicable region planning scheme or it will be read down. It must also not impede the ongoing implementation of the applicable region planning scheme.
It is apparent from the provisions of the Planning and Development Act that the requirement of consistency is directed to consistency between local planning schemes and region planning schemes. It is not directed to development approvals. Similarly, the requirement that a local planning scheme must not impede the ongoing implementation of the applicable region planning scheme is also directed to the relationship between local planning schemes and region planning schemes.
That said, in assessing whether a local planning scheme is consistent with the relevant region planning scheme (or could impede its ongoing implementation), it would be relevant to consider the developments that could validly be approved under the local planning scheme.
There may be some region planning schemes that are very prescriptive. For example, a region planning scheme could set out the objects and purposes of its zones and indicate what types of uses are permissible or impermissible in such zones. It could provide that a local planning scheme may not permit uses within a regional zone that were impermissible under the region planning scheme. The MRS does not do this.
If the MRS zones were intended to operate in the manner the applicant contends, it would be expected to contain the details necessary to enable a determination to be made of when a proposed development (or a local planning scheme) would be inconsistent with a zone (or would impede the implementation of the MRS).
The MRS Map marks the MRS zones, with clear delineations between zones. I accept that the MRS zones have a purpose and are intended to have some operation. However, the MRS text contains no more than three words as the title or description or explanation for each of the zones. The MRS does not set out the objectives or purposes of the zones. The only information provided by the MRS in relation to its Rural Zone is its name 'Rural' and its location on the MRS Map.
I accept that the word 'Rural' must have some content. I do not accept that it means only purely rural uses may be permitted under a local planning scheme (or the MRS for that matter).
First, the MRS does not say that.
Second, as observed in Marshall v MacTiernan, the MRS is intended to provide a broad general blueprint to guide and coordinate the overall planning and development of the metropolitan region. It is left to the local planning schemes to regulate that planning and development in a more particular and detailed manner, and with appropriately greater attention to the precise local planning needs of particular localities and communities.
Third, cl 21 and cl 25 of the MRS weigh against this construction.
Fourth, the Model Provisions contemplate that non‑rural land uses can be approved in areas zoned 'Rural' in a local government scheme.
Fifth, on the applicant's construction, there would be no flexibility.
As I will explain, it is unnecessary to determine the content of the word 'Rural' in the MRS and the resulting limits on what may be permitted to occur in an MRS Rural Zone.
Some region planning schemes may prescribe what uses are permissible in its zones. For example, a region planning scheme may provide that only residential uses are permitted in a 'residential zone'. Assuming the region planning scheme did not have clauses similar to cl 21 and cl 25 of the MRS, a local planning scheme under which development approval could be given for industrial uses in such a residential zone would be inconsistent with the region planning scheme, and invalid to that extent.
However, even if I assume, favourably to the applicant, that cl 21 and cl 25 of the MRS are invalid, the MRS does not contain any such prescriptions.
I accept that extreme examples can be imagined in which it might well be said that a use which a local planning scheme purported to permit in an MRS Rural Zone meant that the local planning scheme was inconsistent with the MRS, subject to the operation (if any) of cl 21 and cl 25.
That said, I do not consider that any of the uses permitted under TPS 6 in its General Rural Zone (in which the Site fell) could be characterised as inconsistent with the MRS Rural Zone. For example, of the eight industrial uses under TPS 6, only three are permissible in a General Rural Zone - 'Industry - Cottage', 'Industry - Extractive' and 'Industry - Rural'. None of these three are inconsistent with any concept of 'rural'. The applicant did not contend otherwise.[317] Accordingly, I would not conclude that TPS 6 is invalid due to any inconsistency with the MRS Rural Zone.
[317] As noted earlier, the applicant contends that the statutory requirement of consistency would not be met if the City could approve uses that are properly characterised as general industry, noxious industry, or light industry in an MRS Rural Zone - see ts 243 - 244. See also ts 51 - 52.
Therefore, if the Proposed Development had involved only uses that were permissible under TPS 6, I would have found that it was not inconsistent with the MRS Rural Zone.

Summary of conclusions

In these reasons, I have explained the various conclusions I have reached. For convenience, those conclusions may be summarised as follows:
1.The Proposed Development was not a 'public work' that the City had the right to do within the meaning of s 6 of the Planning and Development Act.
2.The Proposed Development involved a 'Civic Use', a 'Kennels' use (the animal facility) and an 'Industry - Noxious' use (the green waste grinding). The latter two are Prohibited Uses in the General Rural Zone in which the Site was. The City also approved a use relating to the Waste Transfer Facility which was not a Civic Use, but which I have not otherwise characterised.
3.As some of the uses were Prohibited Uses, the City did not have the power to approve the Proposed Development.
4.I would not conclude that TPS 6 is invalid due to any inconsistency with the MRS Rural Zone. Therefore, if the Proposed Development had involved only uses that were permissible under TPS 6, I would have found that it was not inconsistent with the MRS Rural Zone.
The City ultimately did not contend that, if I found jurisdictional error, I nevertheless should decline to grant relief.[318]
[318] ts 399.
I will hear from the parties as to the appropriate orders to reflect these reasons and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
5 APRIL 2023