Reid v Western Australian Planning Commission
[2023] WASC 110
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: REID -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2023] WASC 110
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 2277 of 2021
BETWEEN: JIM REID
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
CITY OF GOSNELLS
Other Party
Catchwords:
Judicial review - Construction of planning legislation and planning schemes - Power to approve proposed development - Metropolitan Regional Scheme - Meaning of 'have regard to' - Jurisdictional condition or mandatory consideration - Must proposed development be 'consistent' with the MRS zone
Legislation:
Planning and Development Act 2005 (WA)
Result:
Application for judicial review dismissed
Category: A
Representation:
Counsel:
| Applicant | : | K M Pettit SC & C M Fisher |
| Respondent | : | I A Repper & B Loftus |
| Other Party | : | DW McLeod |
Solicitors:
| Applicant | : | Glen Mcleod Legal |
| Respondent | : | State Solicitor's Office |
| Other Party | : | McLeods |
Case(s) referred to in decision(s):
Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
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
Foster v Aloni [1951] VLR 481
General Nominees Pty Ltd (ATF Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114
Huntingdale Village Pty Ltd (receivers and managers appointed) v Corrs Chambers Westgarth (a firm) [No 3] [2016] WASC 366
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274
Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371
Reid v City of Gosnells [2023] WASC 48
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Sanders v City of South Perth [2019] WASC 226
Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210
Table of Contents
Introduction
The application for judicial review
The issue
Legal framework
Regulatory framework
Region and local planning schemes
Local scheme requirements
Development approvals
Analysis
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
The applicant's submissions
The precision of the MRS Map
Clause 38 (and cl 39) of the MRS
The power to give approval under the MRS - clause 30
Non-rural uses may be approved in an MRS Rural Zone
Consistency is not a jurisdictional condition
Conclusion
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 (City Development Application). 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 contends that neither the City nor the WAPC had the power to approve the Proposed Development. In these proceedings, the applicant seeks judicial review of the WAPC's decision to approve the Proposed Development. In related proceedings, Reid v City of Gosnells,[1] the applicant sought judicial review of the City's decision to approve it.
[1] Reid v City of Gosnells [2023] WASC 48.
In Reid v City of Gosnells, I explained why I concluded that the City did not have the power to approve the Proposed Development under TPS 6. My reasons in that case should be read with the following reasons. However, for ease of reference, I will repeat the relevant parts of what I said in that case in these reasons.
Relevantly to these proceedings, the applicant submits that the WAPC did not have the power to approve the Proposed Development because several of the 'uses' involved in the Proposed Development were inconsistent with the applicable MRS zone.
In Reid v City of Gosnells, I explained why I found that the Proposed Development involved multiple uses. It involved a 'Civic Use', a 'Kennels' use (referred to as an 'animal facility'), and an 'Industry - Noxious' use (referred to as 'green waste grinding'). It also involved a use relating to a waste transfer facility which was not a Civic Use, but which I did not otherwise characterise.[2]
[2] Reid v City of Gosnells [119] ‑ [364].
The Site of the Proposed Development is zoned 'Rural' under the MRS. The applicant submits that several of the 'uses' involved in the Proposed Development were inconsistent with that zone, because they were not rural uses. He submits that it follows that the WAPC did not have the jurisdiction to approve such a development.
The WAPC's power to approve a development is set out in cl 30(1) of the MRS. It relevantly provides that 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 submits, in effect, 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).
The WAPC disputes this. The WAPC contends that each of the matters listed in cl 30 is a mandatory consideration in a discretionary decision, not a jurisdictional condition.
The application for judicial review
The application for judicial review relied on the sole ground that the WAPC had purported to approve uses that were inconsistent with an MRS Rural Zone.
The issue
The parties filed an agreed list of issues prior to the hearing.
The list of issues included the applicant's standing. After the first day of the hearing, this issue fell away.
The list of issues also included whether the Proposed Development was a 'public work' that the City had the right to undertake. If it was, the Proposed Development would not require development approval from the City or the WAPC. In Reid v City of Gosnells,[3] I explained why I did not accept that the Proposed Development was a public work that the City had the right to undertake.
[3] Reid v City of Gosnells [49] ‑ [151].
The remaining issue[4] is whether the MRS requires a proposed development on land that is zoned 'Rural' to be 'consistent' with that zone in order for the WAPC to be empowered to grant its approval under cl 30(1) of the MRS. That is, did the WAPC only have power to approve a proposed development if the development was 'consistent' with the applicable MRS Zone. This issue turns upon the proper construction of cl 30(1) of the MRS.
[4] If the answer to this issue had been 'yes', two further issues would have arisen.
Legal framework
In Reid v City of Gosnells,[5] I summarised the legal principles to be applied in relation to applications for judicial review and the approach to be applied in statutory construction. I apply those principles here, but do not repeat that summary.
[5] Reid v City of Gosnells [25] ‑ [35].
I also set out the regulatory framework in relation to planning.[6] This I will largely repeat.
Regulatory framework
[6] Reid v City of Gosnells [173] ‑ [198].
The Planning and Development Act 2005 (WA), region planning schemes and local planning schemes set up a framework under which approval must be obtained before undertaking developments on land. Approval for a development proposal must be sought from the WAPC under the applicable region scheme and from the local government under the applicable local scheme.[7]
[7] See cl 60 of the deemed provisions set out in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations), cl 24 of the MRS and s 162 of the Planning and Development Act.
The applicant submits that the Planning and Development Act and schemes are at different levels of a hierarchical structure. In that hierarchy, the Planning and Development Act is at the top, under which are region schemes, with local planning schemes at the bottom. As the following discussion will show, this is an accurate and useful descriptor.
Region and local planning schemes
The Planning and Development Act makes provision for region planning schemes in Part 4 and for local planning schemes in Part 5.
Both local and region schemes take effect as if they were enacted by the Planning and Development Act.[8] However, this does not mean that their validity must be assumed. In City of Canning v Avon Capital Estates (Australia) Pty Ltd,[9] Allanson J said:
Even though a town planning scheme takes effect as if enacted, that does not put the amendments beyond a challenge. While substantial effect should be given to these words, their operation is restricted by three criteria: first, any clear statutory condition precedent to the exercise of the power must be satisfied; second, the regulations must be read as part of the Act and if, when so read, some inconsistency is found with sections of the Act other than those which define heads of power, that inconsistency must be resolved; third, a purported exercise of power which was patently irrelevant or absurd to the head of power would not be saved …
[8] Sections 56(3) and 87(4) of the Planning and Development Act.
[9] City of Canning v Avon Capital Estates (Australia) Ltd[2012] WASC 223 [150]. See also s 43(1) Interpretation Act 1984 (WA), which provides that '[s]ubsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency'. '[S]ubsidiary legislation' is defined in s 5 of the Interpretation Act to include planning schemes. See also Pearce D, Statutory Interpretation in Australia (9th ed, 2019) [3.50].
In relation to the second requirement, if the inconsistency is irreconcilable, the inconsistent provision in the regulation will usually be treated as subordinate to the provision in the Act.[10]
[10] See Foster v Aloni [1951] VLR 481, 481 and Pearce D, Statutory Interpretation in Australia (9th ed, 2019) [3.50].
The applicant was referring to these restrictions on the operation of schemes in noting that planning schemes fall below the Planning and Development Act in the hierarchy.[11]
Local scheme requirements
Must be consistent with region schemes
[11] See the Applicant's Submissions filed 17 June 2022 (Applicant's Submissions) [41] - [43].
Part 9 of the Planning and Development Act is titled 'Relationship between planning schemes, planning control provisions and written laws'.
Sections 123 and 124 relevantly provide:
123.Local planning scheme or local law to be consistent with region planning scheme or Swan Valley Planning Scheme
(1)A local planning scheme is not to be approved by the Minister under this Act unless the provisions of the local planning scheme are in accordance with and consistent with each relevant region planning scheme.
…
124.Effect of region planning scheme on local planning scheme
(1)If a region planning scheme is inconsistent with a local planning scheme, the region planning scheme prevails over the local planning scheme to the extent of the inconsistency.
(2)If a region planning scheme is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the region planning scheme has effect, resolve to prepare -
(a)a local planning scheme which is consistent with the region planning scheme; or
(b)an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme,
and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme.
(3)If a region planning scheme is amended and is inconsistent with a local planning scheme, the local government of the district in which the land directly affected is situated is to, not later than 90 days after the day on which the amendment to the region planning scheme has effect, resolve to prepare in relation to the land -
(a)a local planning scheme which is consistent with the region planning scheme; or
(b)an amendment to the local planning scheme which renders the local planning scheme consistent with the region planning scheme,
and which does not contain or removes, as the case requires, any provision which would be likely to impede the implementation of the region planning scheme.
(4)In preparing the local planning scheme or amendment the local government is to have due regard to the purpose and planning objectives of the region planning scheme or amendment to the region planning scheme as set out in the statement deposited under section 43(1).
(5)The local government is to, within such reasonable time after the passing of the resolution as is directed in writing by the Minister, forward to the Minister for approval under section 87 the local planning scheme or amendment it has prepared.
Other provisions in Part 9 of the Planning and Development Act further ensure that a local planning scheme will be consistent, or made to be consistent, with the applicable region planning scheme.[12]
[12] See s 125, s 126(3), s 127 and s 128.
I have already noted that the restrictions on the operation of planning schemes place schemes below the Planning and Development Act in the hierarchy. The provisions of Part 9 further add to the hierarchical structure. Local planning schemes must be consistent with the applicable region planning scheme.
Must include the Deemed Provisions and Model Provisions
Local planning schemes must incorporate the 'Deemed Provisions' set out in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations).[13]
[13] See s 256(5)(b) and 257B of the Planning and Development Act and r 10 of the Regulations.
Local planning schemes must also incorporate the model provisions set out in Schedule 1 of the Regulations, unless the Minister approves otherwise.[14]
Must have regard to planning policy
[14] See s 256(5)(a) and 257A of the Planning and Development Act and r 10 of the Regulations.
Section 77 of the Planning and Development Act provides that, in the preparation or amendment of a local planning scheme, the local government is to have due regard to any applicable State planning policy.
In this case, the parties referred to State Planning Policy 2.5 'Rural Planning'.[15] It relevantly provides:
[15] Affidavit of Sally Patricia Grebe sworn on 24 January 2022, SG21, page 479.
2.POLICY INTENT
The purpose of this policy is to protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome.
…
4.POLICY OBJECTIVES
The objectives of this policy are to:
…
(e)avoid and minimise land use conflicts;
5.POLICY MEASURES
…
5.1Protection of rural land and land uses
The WAPC will seek to protect rural land as a State resource by:
(a)requiring that land use change from rural to all other uses be planned and provided for in a planning strategy or scheme;
…
(g)comprehensively planning for the introduction of sensitive land uses that may compromise existing future and potential primary production on rural land; …
5.5Regional variation, economic opportunities and regional development
… WAPC policy is to:
(a)continue to promote rural zones in schemes as flexible zones that cater for a wide range of land uses that may support primary production, regional facilities, environmental protection and cultural pursuits;
(b)support small rural communities by providing for rural enterprise zones which combine light industry and housing, provided they are carefully planned; in general proximity to urban areas; serviced; and have design features that address buffers and amenity;
(c)support small scale tourism opportunities, such as bed and breakfast, holiday house, chalet, art gallery, micro-brewery and land uses associated with primary production, within the rural zone; …
5.7Animal premises
…
WAPC policy in regard to animal premises is:
(a)animal premises are a rural land use, and are generally supported and encouraged on rural land provided rural amenity and environmental impacts can be effectively managed;
…
5.11Regional facilities
Some rural land may be suitable to accommodate facilities that serve a regional or sub-regional catchment. This could include regional attractors or facilities such as sporting or entertainment venues, places of worship, prisons cemeteries and waste facilities.
…
GLOSSARY OF TERMS
…
Animal premises An umbrella term which covers the following rural land uses:
abattoirs, animal husbandry - intensive (including poultry farms and piggeries), rendering plants and sale yards. Does not include animal establishments, catteries or kennels.
…
Sensitive land use Land uses that are residential or institutional in nature, where people live or regularly spend extended periods of time. These include dwellings, short-stay accommodation, schools, hospitals and childcare centres. Generally excludes commercial or industrial premises.
Development approvals
The meaning of 'development'
Unless the contrary intention appears, 'development' in the Planning and Development Act means[16]
the development or use of any land, including:
(a)any demolition, erection, construction, alteration or addition to any building or structure on land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a protection order made under the Heritage Act 2018 applies, any act or thing that -
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building.
[16] Defined in s 4(1) of the Planning and Development Act.
In Bright Image Dental Pty Ltd v City of Gosnells,[17] the Court of Appeal said that it was a feature of the Planning and Development Act that the term 'development' has not always been used consistently. The Court said, however, that the defined meaning of 'development' referred to an activity rather than the product of an activity.[18] It said (citations omitted):[19]
'Development', in its defined sense, denotes an activity rather than the product of an activity. That is clearly the case in respect of the 'development' limb of the definition and the inclusive examples given in par (a) - (c) of the definition. Further, in University of Western Australia v City of Subiaco, Burt CJ noted that an equivalent definition of the term 'development' in the Town Planning and Development Act1928 (WA):
'makes use of and it encompasses two ideas. The first is the "use" of the land which "comprises activities which are done in ... or on the land but do not interfere with the actual physical characteristics of the land" and the second being "activities which result in some physical alteration to the land which has some degree of permanence to the land itself".' (citation omitted)
Both of the ideas identified by Burt CJ concern an activity rather than the product of an activity. By way of example, when a house is constructed on land, the 'development' in the defined sense is the activity of constructing the house, rather than the house itself. The product of the activity is the partly or fully constructed house. When the house is 'used' as a dwelling, the 'development' in the defined sense is the activity of 'using' the house rather than the house itself.
[17] Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [108].
[18] Bright Image Dental [107].
[19] Bright Image Dental [107].
The word 'development' in TPS 6 has the same meaning as the meaning in the Planning and Development Act, unless the context otherwise requires.[20]
Development approval powers
Region planning schemes
[20] See cl 1.7.1(a) of TPS 6. See also s 44(1) of the Interpretation Act.
Clause 30(1) of the MRS relevantly provides:
The [WAPC] or a local authority exercising the powers of the [WAPC] so delegated to it under the Planning and Development Act 2005 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.
By cl 32, the WAPC may define areas in respect of which development approvals under cl 30 can only be given by the WAPC (rather than the local government under delegation) and may require local governments to refer applications for all or certain classes of development on that land to the WAPC for determination.
Pursuant to cl 32, the WAPC required all local governments within the MRS area to refer applications for development to the WAPC for determination when the WAPC advised the local government that the development was of State or regional importance or in the public interest. The parties refer to the provision of such advice as the WAPC 'calling in' the application. 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 the decision as to whether to approve the Proposed Development under the MRS be made by the WAPC, rather than the City under delegation.
Local planning schemes
Clause 67(2) of the Deemed Provisions provides:
(2)In considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application -
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
(d)any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e)any policy of the Commission;
(f)any policy of the State;
(fa)any local planning strategy for this Scheme endorsed by the Commission;
(g)any local planning policy for the Scheme area;
(h)any structure plan or local development plan that relates to the development;
(i)any report of the review of the local planning scheme that has been published under the Planning and Development (Local Planning Schemes) Regulations 2015;
(j)in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve;
(k)the built heritage conservation of any place that is of cultural significance;
(l)the effect of the proposal on the cultural heritage significance of the area in which the development is located;
(m)the compatibility of the development with its setting, including -
(i)the compatibility of the development with the desired future character of its setting; and
(ii)the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
(p)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
(s)the adequacy of -
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
(u)the availability and adequacy for the development of the following -
(i)public transport services;
(ii)public utility services;
(iii)storage, management and collection of waste;
(iv)access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities);
(v)access by older people and people with disability;
(v)the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses;
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
The meaning of 'have due regard to' and 'have regard to'
As seen in the above extract, cl 67(2) of the Deemed Provisions requires the local government to 'have due regard to' various matters in considering an application for development approval. Clause 30(1) of the MRS permits the WAPC to refuse or grant approval, 'having regard to' specified matters.[21]
[21] Later, I explain why I consider that the phrase 'having regard to' applies to each of the specified matters and not, as the applicant submits, just the first. See under the subheading 'Contention that only the first is a jurisdictional condition' under the heading 'Analysis'.
The requirement in cl 67 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.[22]
[22] Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371 [67] - [76]. See also General Nominees Pty Ltd (ATF Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114 [85] - [87] and [105]. See also City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) LGERA 96 [46], [59], [61] and Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 [161] - [162] (Quinlan CJ).
Later, I will discuss the applicant's contention that the requirement that the WAPC make its decision 'having regard to' a matter bears a different meaning.
Orderly and proper
As seen in the above extracts, both cl 30(1) of the MRS and cl 67(2) of the Deemed Provisions refer to 'orderly and proper planning'.
In Marshall v Metropolitan Redevelopment Authority,[23] Pritchard J[24] considered the meaning of that phrase in the context of the Metropolitan Redevelopment Authority Act 2011 (WA) (MRA Act). Her Honour noted the ordinary meaning of the words 'orderly' and 'proper'.[25] Her Honour then said (citations omitted):[26]
In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
The planning discretion should be directed to identifying the 'proper' use of land - that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'.
However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a question of fact to be determined having regard to the circumstances of each case.
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
[23] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226.
[24] As her Honour then was.
[25] Marshall v Metropolitan Redevelopment Authority [179].
[26] Marshall v Metropolitan Redevelopment Authority [179] - [182]. See also S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191 [157].
Analysis
The issue to be determined is whether the MRS requires a proposed development on land that is zoned 'Rural' to be 'consistent' with that zone in order for the WAPC to be empowered to grant its approval under cl 30(1) of the MRS. That is, did the WAPC only have power to approve a proposed development if the development was 'consistent' with the applicable MRS Zone.
In Reid v City of Gosnells,[27] I discussed the applicant's contention that the Proposed Development could not be approved by the City because it was 'inconsistent' with an MRS Rural Zone.
[27] Reid v City of Gosnells [382] ‑ [552].
In that discussion, I explained what the requirement of consistency involved. I also explained why I concluded that TPS 6 was not inconsistent with the MRS Rural Zone. It followed that, 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 discussion included an analysis of the intended operation of zones in the MRS and the WAPC's power to approve a proposed development. The parts of that discussion that are relevant to these proceedings are reproduced or incorporated in what follows.
The Planning and Development Act consistency requirement - content of
I earlier set out the regulatory framework, including relevant provisions in Part 9 of the Planning and Development Act. Each of those provisions refer to the requirement of consistency between local planning schemes and region planning schemes. They do not refer to consistency in the context of development approvals.
Further, in requiring consistency between local planning schemes and region planning schemes, the Planning and Development Act provisions do not specifically refer to consistency with region planning zones, with one exception. The exception is s 126(3). It makes special provision in relation to land zoned 'Urban' under a region planning scheme. Section 126 relevantly provides:
126.Local planning scheme, amendment of due to region planning scheme
(1)If a region planning scheme delineates land comprised in a local planning scheme as a reserve for any public purpose, then the local planning scheme, in so far as it operates in relation to that land, is, by force of this section and without any further action under this Act, amended to such extent (if any) as is necessary to give effect to the reservation under the region planning scheme.
…
(3)If a region planning scheme delineates, or it is proposed that a region planning scheme delineate, land comprised in a local planning scheme as land in an Urban zone, the Commission may publish in the Gazette a notice amending the local planning scheme, insofar as it operates in relation to that land, so that the land is zoned in the local planning scheme in a manner that is consistent with the objectives of the delineation or proposed delineation under the region planning scheme.
Neither the applicant nor the City mentioned s 126(3) in their submissions. The WAPC referred to s 126 in passing as one of the relevant sections.[28] Accordingly, after I reserved my decision, I invited the parties to comment, if they wished, on whether there was any significance to be drawn from the fact that the legislation made express provision for the amendment of the local planning scheme so that its zoning would be consistent with the objectives of the delineation of land as an Urban zone under the region planning scheme, or from the fact that the legislation only made express provision in that limited context.
[28] ts 305 - 306.
All parties filed further submissions.
The parties largely agreed that s 126(3) enables the necessary local planning scheme amendment to be achieved more quickly than waiting on the local government.[29] The WAPC helpfully summarised the way in which Part 9 deals with the requirement to amend local planning schemes, to illustrate the purpose of s 126(3) in that context:[30]
[29] Applicant's Further Submissions filed 18 August 2022 (Applicant's Supplementary Submissions) [5] and [6], First Other Party's Submissions filed 29 August 2022 (City's Supplementary Submissions) [4.9], and Respondent's Responsive Submissions filed 12 September 2022 (WAPC's Supplementary Submissions) [6] - [7], Applicant's Response to Further Submissions filed 23 September 2022 (Applicant's Supplementary Reply) [5].
[30] WAPC's Supplementary Submissions [4] - [7]. See also Applicant's Supplementary Reply [1] - [2].
4.In the event a local planning scheme is inconsistent with a region planning scheme, it is generally the responsibility of the relevant local government to resolve to prepare a local scheme or amendment which is consistent with the region scheme (see s 124(2) PD Act). In the event that the local government does not do so, the Minister may direct the local government to (s 125(1) and (2)).
5.Two exceptions,[31] in which the preparation of a local scheme or amendment by the local government would not be required, are:
(a)if the region scheme delineates land as a reserve for any public purpose (s 126(1)), in which case the notice of the amendment by the force of that section is to be published in the Gazette (s 126(2)); and
(b)if the region scheme delineates, or if it is proposed that a region scheme delineate, land as an Urban zone, and the WAPC (after consultation with the local government) elects to publish in the Gazette a notice amending the local planning scheme (s 126(3)).
6.In light of the above statutory framework, s 126(3) is a facilitative provision that provides a simpler means of effecting the necessary change to a local planning scheme that arises when a new region scheme, or a region scheme amendment, places land into the region scheme's Urban zone.
7.Given the role of the WAPC in the overall strategic planning for land under a region scheme, the benefit of this provision is clear: it provides a mechanism to help expedite the development of land identified in the MRS as Urban by fast-tracking a local planning scheme amendment process, in circumstances when the same land has gone through (or is going through) a region scheme amendment process to introduce the Urban zoning.
[31] By 'exception', I take the WAPC to mean only that the local scheme will be amended so as to ensure consistency without the need for the local government to take steps to achieve that. Cf Applicant's Supplementary Reply [1].
Section 126(3), in its terms, has the effect of ensuring consistency between local planning scheme zones and the objectives of delineating land as land in an Urban Zone in a region planning scheme. Its terms suggest that the statutory requirement of consistency includes consistency in zoning, at least in this context.
On the other hand, s 126(3) is the only section to expressly refer to consistency in zoning. The fact that it is limited to Urban Zones could indicate that the legislature was not concerned with consistency in zoning in other zones. (A further indication that the legislature was not concerned with consistency in zoning is to be found in cl 25 of the MRS, discussed later.[32])
[32] See below under the subheading 'Clauses 21 and 25'.
Even if s 126(3) is taken to support a requirement of consistency in all zones in planning schemes, it says nothing about development approvals.
In my view, 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. That said, in assessing whether a local planning scheme is consistent with the relevant region planning scheme, it would be relevant to consider the types of developments that could validly be approved under the local planning scheme.
The MRS
The MRS is a region planning scheme applicable to all land within the metropolitan area.[33] It applies to that land, in addition to the local planning schemes that apply to land in the metropolitan area. It has effect as if it were enacted by the Planning and Development Act.[34]
[33] Clause 6 of the MRS.
[34] See s 56(3) of the Planning and Development Act.
Clause 7 of the MRS relevantly provides:
This Scheme comprises this text setting out the provisions of the Scheme together with the Scheme map, comprising 38 sheets and the descriptive legend of the map, and colouring or markings thereon.
I will refer to the 'Scheme map' as the 'MRS Map'.
The MRS Map
The MRS Map shows what zones apply to areas within the metropolitan region. The zones are marked distinctly, and follow the edges of lots and roads.
The Site is in an MRS Rural Zone. Rural Zones are marked in light green. The Rural Zone which covers the Site extends from the northern-most point of the MRS Map to the southern-most point. For about a third of the distance, Tonkin Highway is its western boundary. Adjacent to its western boundary are urban zones, industrial zones and parks.
The MRS text content (or lack of content) as to zones
Part 3 of the MRS text relates to zones. The only explanation in the MRS text as to what each of the zones means is contained in cl 23. It relevantly provides (notes omitted):
23.(1) Land, other than land reserved under Part II of this Scheme, is classified into zones as set out in Column 2 of Table 2 of this clause and shown coloured on the Scheme Map in the manner described in Column 1 of that Table.
(2) Table 2:
_______________________________________________
Column 1 Column 1
Legend on Scheme Map Zone
_________________________________________________________
1. All land coloured red brown Urban
2. All land coloured light red Urban Deferred
brown
3. All land coloured light blue Central City Area
4. All land coloured purple Industrial
5. All land coloured purple with Special Industrial
horizontal and vertical hatching6. All land coloured light green Rural
7. All land coloured yellow green Private Recreational
8. All land coloured smokey green Rural-Water Protection
_________________________________________________________
That is, each zone is given a title, description or meaning of one to three words.
The MRS says nothing else about the zones. The MRS does not set out the objectives or purposes of the zones. Nor does the MRS expressly prohibit what the applicant says cannot be done consistently with the MRS. In particular, the MRS does not state that certain uses are not permissible in certain MRS zones, either under the MRS or under a local planning scheme. It does not state that a local planning scheme may not permit, for example, a non‑rural use to be given local planning approval in an MRS Rural Zone. The MRS also does not require development approval to be refused for particular uses in particular MRS zones.
The lack of content in the MRS as to zones can be contrasted with the detail in TPS 6.[35]
[35] Discussed in Reid v City of Gosnells [201] ‑ [210].
The MRS text uses the word 'rural' in three places. Twice in the table set out above and once in cl 17. Clause 17 provides:
Where it is desired to develop reserved land within a State Forest or Water Catchment Area for a purpose other than that for which the land is reserved under the Scheme the land shall be subject to the Scheme in the same way as if the land were within a Rural zone.
As to the word 'consistent', it appears in one place in the MRS, in cl 30A. Clause 30A relates to applications in relation to developments within, or which could affect land within, the Swan development control area. It requires the WAPC to determine such applications in a manner that is 'consistent' with the advice of the Swan River Trust.
Clauses 21 and 25
Within part 3 of the MRS,[36] cl 21 and cl 25 of the MRS provide (emphasis added):
21.Where any provision of a local planning scheme of a local authority that has been duly made subsequent to this Scheme having the force of law, and which has been approved by the Minister and published in the Government Gazette, is at variance with any provision of this Part, the provision of the local planning scheme of the local authority shall prevail.
25.Subject to section 7 of the Town Planning Act, when making or amending a [local government scheme] in accordance with section 35 of the [Metropolitan Region Town Planning Scheme Act 1959 (WA)], a local authority shall have regard to the primary use for which the land to which the [local government scheme] relates is zoned under the Scheme as indicated by the descriptive title in column two of table two of the Scheme, but nothing in the Scheme prevents a local authority from making proper provision for that land or portion to be otherwise used or zoned for some other use and, when required by the Minister so to do, the local authority shall make such provision.
[36] As can be seen from the discussion under the previous subheading, this is the Part that deals with zoning.
The 'Town Planning Act' referred to in cl 25 and elsewhere in the MRS means the Town Planning and Development Act 1928 (WA). At the time the MRS was gazetted, s 7 of the Town Planning and Development Act contained the provisions for making and amending a local planning scheme. It set out requirements relating to the EPA, heritage listed land, and land in the Swan Valley. It prescribed the manner in which local planning schemes could be approved, revoked or amended. It required local governments to have due regard to planning policies. Section 7(3) provided that, when a local government scheme or an amendment to a scheme was approved by the Minister and published in the Gazette, it would have full force and effect as if it were enacted by the Act.
The applicant submits that cl 21 and cl 25 of the MRS are inconsistent with s 123 and s 124 of the Planning and Development Act and are therefore invalid.[37] It will be recalled that s 123(1) provides that the Minister is not to approve a local planning scheme unless it is consistent with the relevant region planning scheme. Section 124(1) provides that, if a region planning scheme is inconsistent with a local planning scheme, the region planning scheme prevails over the local scheme.
[37] Applicant's Submissions [70] and [74].
The applicant acknowledged in a footnote:[38]
There are two earlier decisions seemingly inconsistent with this submission. Leighton v The Honourable Mr John Day MLA [2014] WASC 164 at [20] is to the contrary, but is per incuriam. Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure[2002] WASCA 274 was under the now repealed Town Planning and Development Act1928, and is inapplicable. Alternatively, with respect, they are both wrong.
[38] Applicant's Submissions footnote 19.
I will refer to the latter authority as 'Marshall v MacTiernan'.
The City submits that the fact that Marshall v MacTiernan was decided under the now repealed Town Planning and Development Act did not mean that it was inapplicable.
The City notes that s 3 of the Planning and Development Act provides:
3.Purposes and interpretation of this Act
(1) The purposes of this Act are to -
(a)consolidate the provisions of the Acts repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 and the Western Australian Planning Commission Act 1985) in a rewritten form; and
(b)provide for an efficient and effective land use planning system in the State; and
(c)promote the sustainable use and development of land in the State.
(2) If -
(a)the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 or the Western Australian Planning Commission Act 1985 expressed an idea in a particular form of words; and
(b)this Act appears to have expressed the same idea in a different form of words in order to use a clearer or simpler style,
the ideas are not to be taken to be different just because different forms of words were used.
The City submits that there were provisions under the previous regime which were of similar effect to s 123(1) and s 124(1).[39] As I will explain, I accept this.
[39] City's Submissions [117].
At the time that Marshall v MacTiernan was decided, the Metropolitan Region Town Planning Scheme Act 1959 (WA) (MRS Act) was in force. By s 32(2) of the MRS Act, if Parliament did not pass a resolution disallowing the MRS within the prescribed period, the MRS would have effect as though its provisions were enacted by the MRS Act.
Section 3 of the MRS Act provided:
This Act shall be construed in conjunction with the Town Planning Act, as if the provisions of this Act were incorporated with and formed part of that Act, but where the provisions of this Act are in conflict or are inconsistent with the provisions of that Act, the provisions of this Act prevail to the extent to which they are so in conflict or inconsistent.
By s 46(1) of the Interpretation Act 1984 (WA), the references to 'this Act' includes the MRS, and the references to 'that Act' includes a local scheme made under the Town Planning and Development Act.[40]
[40] Marshall v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274 [22].
The combined effect of these provisions is, relevantly, that provisions of the MRS are to prevail to the extent to which they are in conflict or inconsistent with provisions in a local planning scheme.
Plainly, s 124(1) of the Planning and Development Act 'expresses the same idea' as these provisions.
Further, s 34 of the MRS Act provided:
34. No town planning schemes or local laws to be made unless consistent with Scheme
If the Scheme is not disallowed by Parliament under the provisions of section 32 -
a town planning scheme made under the provisions of the Town Planning Act by the City of Perth or by any local government referred to in the First Schedule shall not be approved by the Minister to whom the administration of that Act is for the time being committed by the Governor; and
local laws which if made would affect or be likely to affect the Scheme shall not be made by the local government,
unless the provisions of the town planning scheme or local laws, as the case may be, are in accordance with and consistent with the Scheme.
Plainly, s 123(1) of the Planning and Development Act 'expresses the same idea' as s 34 of the MRS Act.
Although not raised in the context of cl 21 and cl 25 of the MRS, the applicant referred to s 124(2) of the Planning and Development Act in the broader context of his argument as to consistency.[41] It will be recalled that s 124(2) effectively provides that, if a region planning scheme is inconsistent with a local planning scheme, the local planning scheme must be amended so that it is consistent with the region planning scheme and so that it does not contain any provision which would be likely to impede the implementation of the region planning scheme. Section 124(3) makes similar provision where a region planning scheme is amended and is inconsistent with a local planning scheme.
[41] See below under the heading 'The applicant's submissions'.
Section 35(1) of the MRS Act provides (footnote omitted):
35.Local governments to make town planning schemes consistent with Metropolitan Region Scheme
(1)Subject to subsections (1a) and (1b), within a period of 3 years from the day the Scheme has the force of law as provided in section 32, the Council of the Municipality of the City of Perth and each local government referred to in the First Schedule shall -
(a)where on the day the Scheme has the force of law no town planning scheme made under the provisions of the Town Planning Act is operating in its district, prepare and submit, under the provisions of that Act, to the Minister to whom the administration of that Act is for the time being committed by the Governor, for approval, a town planning scheme for its district which is in accordance and consistent with the provision of the Scheme;
(b)where on that day a town planning scheme is operating in its district, take such steps to amend the scheme so that it shall conform with the provisions of the Scheme.
Section 35A(2) of the MRS Act provides:
35A. Effect of amendment of the Scheme on local government town planning scheme
…
(2)Where the Scheme is amended the local government of the district in which the land directly affected by the amendment is situate or the responsible authority in relation to the land under the Town Planning Act, as the case requires, shall -
(a)not later than 3 months after the date on which the amendment to the Scheme has the force of law, resolve to prepare in relation to the land a town planning scheme, or an amendment to an existing town planning scheme, which -
(i)is in accordance with and consistent with the Scheme as so amended; and
(ii)will not impede the implementation of the Scheme;
and
(b)within such reasonable time after the passing of that resolution as is directed in writing by the Minister, forward to the Minister for approval the town planning scheme or amendment prepared by it.
Unlike s 35A(2) of the MRS Act, s 35(1) of the MRS Act does not refer to the local planning scheme not impeding the region planning scheme. Nevertheless, I consider that, read together, s 124(2) and s 124(3) of the Planning and Development Act can be said to 'express the same idea' as s 35(1) and s 35A(2) of the MRS Act.
The applicant did not identify any meaningful difference between the provisions in the MRS Act and s 123 and s 124 of the Planning and Development Act.
For these reasons, I consider that the decision in Marshall v MacTiernan is applicable.
In Marshall v MacTiernan, Parker J, with whom Murray and Anderson JJ agreed, said, in relation to cl 21 of the MRS:[42]
In effect, where there is a variance, the provision of Part III of the MRS [which deals with zoning] is modified to the extent necessary to remove the variance. The provision of the subsequent local scheme prevails. That being so, there would not be any inconsistency or want of accord between the local scheme and the MRS because, by the terms of cl 21 of the MRS itself, the MRS provision effectively retreats so as to remove the variance.
[42] Marshall v MacTiernan [36].
Parker J noted that the appellants advanced two submissions against this. The first was that the local planning scheme could not be said to have been 'duly made' if its terms were inconsistent with the MRS when it was made, because that would not comply with s 34 of the MRS Act. His Honour said:[43]
There are two difficulties with this. In the context of cl 21, the notion of 'duly made' appears to be a reference to compliance with the requirements for the making of a town planning scheme under the provisions of the Planning Act. Given that the subject matter of cl 21 is the removal of a variance between a local scheme and the MRS, it would be a self-defeating nonsense for cl 21 to intend, by 'duly made', that the local scheme be 'in accordance with and consistent with' the MRS as required by s 34 of the MRS Act without first taking into account the effect [of] cl 21.
[43] Marshall v MacTiernan [37].
Parker J rejected the appellant's second submission that 'variance' in cl 21 meant something less than 'inconsistent' and concluded:[44]
It appears to me that the legislative scheme revealed by cl 21 of MRS was that it anticipated that subsequent local schemes, duly made and approved by the Minister and Gazetted, might be at variance with a provision of Part III of the MRS. In that event the MRS itself provided that the provision of the subsequent local scheme should prevail. That would remove any scope for inconsistency in respect of Part III of the MRS, ie zoning, before it arose.
[44] Marshall v MacTiernan [37].
One of the applicant's primary contentions is that TPS 6 could not authorise developments that were not rural in an MRS Rural Zone because a local planning scheme must be consistent with the applicable MRS zone. If cl 21 is valid, this contention fails.
The observations of Parker J were arguably obiter dicta. His Honour did not accept that there was any inconsistency between the zoning under the local planning scheme and the applicable zone in the MRS. However, his Honour fully canvassed the issue and I consider I should follow his Honour's conclusions.[45]
[45] See Huntingdale Village Pty Ltd (receivers and managers appointed) v Corrs Chambers Westgarth (a firm) [No 3] [2016] WASC 366 (Le Miere J) [92].
In any event, even if cl 21 is invalid, cl 25 is expressed differently. Even if I accepted that cl 25 of the MRS could not validly permit a local government to include in a local scheme something that was inconsistent with the MRS, this would not answer the question of what inconsistency means. Clause 25 could only be invalid if what it purports to permit a local government to do would actually be inconsistent with the MRS. That is, it would only be invalid if the statutory requirement of consistency required local planning schemes to operate such that they did not permit a local zone to be different to the region zone and did not permit a use to be approved in a local zone that was different to the primary use of the region zone. Whether or not this is what is required by the consistency requirement in the Planning and Development Act is the issue in dispute.
Further, in my view, the very presence of cl 25 suggests that the MRS zones were not intended to have the effect contended by the applicant.
WAPC submissions
Purpose of MRS zones
The WAPC submits that the MRS zones serve three purposes:[46]
1.a strategic and guiding function;
2.a function of controlling the content of local planning schemes at the point where those schemes are approved by the Minister; and
3.a factor to be considered in determining development applications under cl 30(1) of the MRS.
[46] ts 312 - 315.
In relation to the first, the WAPC submits that the zones provide a base for a vast number of policies and guidelines and the non‑statutory planning framework. It submits that they provide an indication of the planning intentions for the land so zoned.[47]
[47] ts 312.
In relation to the second purpose, the WAPC notes that, when a local planning scheme or amendment is presented to the Minister, she must be satisfied that the local scheme zones (including their identified objectives, purposes, and use permissibility) are consistent with the MRS. It submits that this is the controlling function - to control the content of local planning schemes at the time of their making. It submits that the zones are not intended to have a controlling function at the point of development approvals.[48]
[48] ts 312 - 314.
The WAPC submits that consistency with the MRS does not require that the uses in local planning scheme zones be exclusively uses that would fall within the applicable MRS zone.[49]
Contrast between TPS 6 and MRS
[49] ts 315.
In Marshall v MacTiernan,[50] Parker J, with whom Murray and Anderson JJ agreed, said (footnotes added):
It is apparent from the MRS Act and the Planning Act[51] that it is not the legislative scheme that the MRS and a town planning scheme of a local government perform precisely the same role. The MRS is clearly intended to provide a broad general blueprint to guide and coordinate the overall planning and development of the metropolitan region. Within that broad and general blueprint, it is left to the very many town planning schemes of the local governments within the metropolitan region 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. As Kennedy J observed in City of Bayswater v Minister for Family and Children's Services & Ors [2000] WASCA 151, 108 LGERA 182 at 185 [5]:
'The Metropolitan Region Town Planning Scheme Act 1959 (WA) provides for the planning and development of land within the metropolitan region. It is concerned with the broader aspects of town planning, and, by s 34, town planning schemes made by local authorities within the metropolitan region are required to be consistent with the provisions of the Metropolitan Region Scheme.'
[50] Marshall v MacTiernan [31].
[51] Town Planning and Development Act.
Consistently with these observations, the WAPC contrasts the approval process under TPS 6 with the process under the MRS. It notes that, unlike cl 3.3 of TPS 6, which sets limits on the permissibility of uses under the scheme, the MRS does not set limits in the same way.[52] It submits that the MRS does not directly regulate or control uses, and that it is not built upon prohibitions as to uses. Rather, it submits that the MRS gives the WAPC a discretion, and guides the exercise of that discretion. It submits that the local planning schemes provide another layer of approval, and that it is local planning schemes that regulate uses.[53]
Consistency requirement
[52] ts 320.
[53] ts 327.
The WAPC submits that cl 30(1) of the MRS requires regard to be had to the MRS zone, but that 'consistency' with that zone is not a jurisdictional condition to its power to grant development approval under that clause.
The WAPC submits (citations omitted):[54]
3.The question of 'consistency' between a local planning scheme and the MRS arises for consideration when a local scheme (or amendment) is prepared and presented to the Minister for approval; or when considering whether to exercise the duty under section 124(2) or (3) of the Planning and Development Act 2005 (WA) …; or in the specific circumstances set out in the [Planning and Development Act] section 125, 126(3), 127 or 128; or perhaps when construing a local planning scheme. None of these circumstances arises before the Court ...
4.In such circumstances the 'consistency' assessment is one that involves comparison of region scheme provisions to local scheme provisions – 'consistency' is not a concept used for comparing a development application to a zone.
5.The concept of whether a particular proposed development is 'consistent' with a particular zone is not found anywhere in the text, structure or context of the MRS.
[54] Respondent's Written Outline of Opening Submissions filed 7 June 2022 (WAPC's Submissions) [3] - [5].
The WAPC submits that, therefore, the MRS and the Planning and Development Act do not require a development to be consistent with an MRS zone to enliven its discretion to approve that development.[55]
The applicant's submissions
[55] See WAPC's Submissions [3] - [5] and ts 339 - 340.
In Reid v City of Gosnells, I discussed the applicant's submission that a local planning scheme must be consistent with the MRS. I also discussed his submission that neither the City nor the WAPC had the power to approve a development that involved uses that were 'inconsistent' with the applicable MRS zone.[56]
[56] Reid v City of Gosnells [447] ‑ [534].
In that discussion, I explained why I did not accept the applicant's contention that approving a non‑rural use in an MRS Rural Zone would impede the implementation of the MRS. This contention was based upon s 124(2) of the Planning and Development Act, which requires that an amended local planning scheme not contain any provision which would be likely to impede the implementation of the region planning scheme. In short, I said that whether approving a non‑rural 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) depended upon the proper construction of the effect of the MRS designating the zone as a Rural Zone. I noted that that was the issue in dispute. Accordingly, I concluded that, while the presence of s 124(2) is relevant to the proper construction of the effect of the MRS zones, it could not be determinative.[57]
[57] Reid v City of Gosnells [450] ‑ [451].
I also discussed the applicant's submissions as to the meaning of 'rural' in the MRS. I explained why I considered that the legislature contemplated that non‑rural land uses could be approved in areas zoned 'Rural' in a local planning scheme. I further noted that 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.[58]
[58] Reid v City of Gosnells [467] ‑ [484].
My reasons for these conclusions are set out in Reid v City of Gosnells,[59] and I do not repeat them here.
The precision of the MRS Map
[59] See the paragraphs cited in the previous footnotes.
The applicant notes that the MRS Map shows that the zoning is very clear. Its 'edges are very distinct. … they follow lot edges or road edges and other defined places. So there's no lack of clarity about whether land is MRS zone rural or urban or industrial or reserved'. The applicant submits that, therefore, 'the MRS with its map and its text is not some mere guideline for people to have a look at and then put aside as inconvenient'.[60]
[60] ts 247.
I accept that the MRS Map has precise and clear zone delineations. I accept that this supports a conclusion that the zones are intended to have some operation. What that operation is will depend on all of the relevant considerations discussed in this section.
Clause 38 (and cl 39) of the MRS
The applicant further submits that his construction is supported by cl 38 and cl 39 of the MRS.
Clauses 38 and 39 provide:
Division 3 - Non-Conforming Use of Land
38.No provision of this Scheme shall prevent -
(a)the continued use of any land or building for the purpose for which it was being lawfully used at the time of coming into force of this Scheme; or
(b)the carrying out of any development thereon for which, immediately prior to that time a permit or permits required under the Town Planning Act and any other law authorising the development to be carried out had been duly obtained and was current.
39.Where a non-conforming use exists or was authorised as mentioned in Clause 38 of this Scheme on land -
(1)reserved under Part II of this Scheme - all or any erection, alteration or extension of the buildings thereon or use thereof shall not be carried out or continued unless the approval of the Commission has been obtained in writing;
(2)zoned under Part III of this Scheme - such use or building thereon or both may be extended to the limits prescribed by the Uniform Building Bylaws or such other bylaw made under the Local Government Act 1960, and amendments for the purpose of limiting the size, location and distance from boundaries and other matters required by law for that class of use within the boundary of the lot or lots on which the use was carried on immediately prior to the coming into force of this Scheme.
The applicant's submissions in relation to these clauses developed over the course of the proceedings.[61] I gave the applicant leave to file further submissions to clarify his position, and gave the other parties leave to respond. Each party filed further submissions.[62]
[61] The applicant did not mention cl 38 until he filed the Applicant's Submissions in Reply to the City's Amended Opening Submissions filed 27 June 2022. The applicant did not mention cl 39 in his written submissions.
[62] The City's submissions did not engage with the construction issue - see the City's Supplementary Submissions [6.1] - [6.5].
The applicant noted that, to fall within cl 38, the 'non-conforming use' must have been a use that existed at the date the MRS commenced (in 1963), or a use that had been approved before the MRS commenced.[63]
[63] Applicant's Supplementary Submissions [11] - [13].
The applicant submitted that the existence of provision in the MRS for non‑conforming uses (cl 38) implies that a proposed use that is inconsistent with the MRS zones is not approvable unless that use falls within the criteria for a 'non-conforming use'.[64] The applicant submitted that, if it were otherwise, cl 38 would have no work to do.[65]
[64] Applicant's Supplementary Submissions [10] - [13].
[65] Applicant's Supplementary Submissions [14] - [15].
In relation to cl 39, the applicant submitted that[66]
clause 39 implies that an extension of a non-conforming building or use can be approved, say in 2021, but only to the extent that applied before 1963. That is to say, its implicit effect is quite harsh - such long‑standing non-conforming use is, practically speaking, now incapable of approval for extension. Nothing in the MRS or in the PD Act has remedied this. Nevertheless, its presence in the MRS is a clear indication that the City cannot approve an 'extension' of a non‑conforming use on the site at its discretion.
[66] Applicant's Supplementary Submissions [20].
I accept that cl 38 and cl 39 indicate that a use can be 'non‑conforming' with the MRS. I do not accept, however, that this supports the applicant's argument. It was not in dispute that it was possible for a use to be inconsistent with the MRS in a way that was unrelated to the MRS zoning.[67] It follows that, simply because cl 38 and cl 39 indicate that a use can be 'non-conforming' with the MRS, this does not necessarily involve a recognition that a use can be inconsistent with an MRS zone.
[67] See ts 415 and ts 418 - 419. See also ts 407 - 408 and ts 416 - 417.
Further, I do not accept that cl 38 would only have work to do if the applicant's construction is accepted. In my view, cl 38(a) is intended to permit existing lawful uses to continue without the need for development approval to be obtained under the MRS. Similarly, cl 38(b) is intended to permit a development that had already been approved prior to the MRS to proceed without the need for a new approval. That is, the work that cl 38 does is to remove the requirement to obtain approval in certain circumstances. For uses that do not fall within cl 38, the usual requirement to obtain approval would remain.
In addition, I do not accept the applicant's submission that cl 39 has the effect that a long-standing non-conforming building or use is, practically speaking, now incapable of approval for extension. Further, the fact that this would be the practical effect of the applicant's construction is another reason to reject it.
Clause 39 makes further provision in relation to non-conforming uses that existed, and developments that had been approved, prior to the MRS. By s 39(1), when the land is reserved land, a new development approval under the MRS is nevertheless required for any building erection, alteration or extension and use. By s 39(2), when the land is zoned land, buildings and uses may be extended to the limits specified by certain bylaws (within the same lot) without further approvals.
Frankly, cl 38 and cl 39 could have been better drafted. Nevertheless, I consider that the overall meaning is sufficiently clear. In my view, by their combined operation, where a non-conforming use existed prior to the commencement of the MRS:
1.on reserved land, any use of the land could only be continued with the written approval of the WAPC; and
2.on zoned land, the non-conforming use could be continued without further approvals and could also be extended to the limits specified by certain bylaws (within the same lot) without further approvals.
For these reasons, I do not accept that cl 38 and cl 39 support the applicant's construction.
The power to give approval under the MRS - clause 30
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.[68]
[68] 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)'.[69] 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 jurisdictional condition. This contention requires some analysis.
The justification for saying 'having regard to' is equivalent to 'must be'
[69] 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:[70]
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.
[70] ts 350.
The applicant submits that these all irresistibly point to there being a statutory regime of only rural uses in an MRS Rural Zone.[71]
[71] 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.[72]
[72] 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.[73] He said[74]
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.
[73] ts 352 - 353.
[74] 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'.[75] 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.
[75] 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.[76]
[76] 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[77] 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.
[77] 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):[78]
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.
[78] 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'.[79] 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.[80]
[79] Marshall v Metropolitan Redevelopment Authority [115].
[80] 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).[81] 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'.[82] 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).[83]
[81] Marshall v Metropolitan Redevelopment Authority [110].
[82] Marshall v Metropolitan Redevelopment Authority [110].
[83] 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.[84]
[84] 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.[85]
Only the applicant's construction accords with the Planning and Development Act's purpose
[85] Stockland Development Pty Ltd v Townsville City Council [2013] QCA 210 [26].
In his written submissions, the applicant submitted that there were five reasons why only his construction accorded with the legislative purpose of consistency.[86] During the hearing, the applicant clarified that what was described as the final point was actually a conclusion.[87]
[86] 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'.
[87] See ts 339 in relation to the Applicant's Submissions [94].
First, the applicant submits that, if his construction is not adopted,[88]
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].
[88] 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,[89] it would likely be met if the WAPC decided to approve an industrial complex in a high-density residential zone.
[89] See Sanders v City of South Perth [2019] WASC 226 (Quinlan CJ) [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.[90]
[90] 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 an MRS Rural Zone. 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.[91]
[91] 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.[92]
[92] 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 1986 (WA)).
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,[93] 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.
[93] 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.[94]
[94] 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.[95] I explained why I rejected this contention in the previous section.
Non-rural uses may be approved in an MRS Rural Zone
[95] Applicant's Submissions [93].
In Reid v City of Gosnells,[96] I summarised my reasons for rejecting the applicant's contention that only purely rural uses could be approved in an MRS Rural Zone. I will repeat the relevant aspects of that summary, with some modifications, in what follows.
[96] Reid v City of Gosnells [535] ‑ [552].
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 the MRS (or a local planning scheme 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.[97]
[97] See Reid v City of Gosnells [471] ‑ [473] and [483].
Fifth, on the applicant's construction, there would be no flexibility.
Consistency is not a jurisdictional condition
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.[98]
[98] 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.
Conclusion
The above reasons explain why I have concluded that the WAPC's power to approve a proposed development is not limited to where the development was 'consistent' with the applicable MRS Zone.
Accordingly, I dismiss the application for judicial review.
I will hear from the parties 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
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