Scutti v City of Wanneroo

[2018] WASCA 175

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SCUTTI -v- CITY OF WANNEROO [2018] WASCA 175

CORAM:   BUSS P

MURPHY JA

ALLANSON J

HEARD:   19 APRIL 2018

DELIVERED          :   12 OCTOBER 2018

FILE NO/S:   CACV 40 of 2017

BETWEEN:   CARMELA  SCUTTI

First Appellant

ANTONIO GUISEPPE SCUTTI

Second Appellant

PAOLA SCUTTI

Third Appellant

GIUSEPPE ALESSANDRO SCUTTI

Fourth Appellant

AND

CITY OF WANNEROO

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   LE MIERE J

Citation: SCUTTI -v- CITY OF WANNEROO [2017] WASC 70

File Number             :   GDA 14 of 2016

Catchwords:

Town planning - Determination of whether land injuriously affected by the making or amendment of a town planning scheme - Proper construction of Agreed Structure Plan - Whether land classified as a reserve under Agreed Structure Plan - Whether land reserved under a scheme - Whether incorporation of Agreed Structure Plan into scheme amounts to amendment of scheme - Whether land reserved for a public purpose - Whether scheme permits development for no purpose other than a public purpose - Whether scheme prohibits wholly or partially the furtherance of non‑conforming uses

Legislation:

Planning and Development Act 2005 (WA), s 174(1)

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

First Appellant	:	Mr M McCusker QC & Ms L Rowley
Second Appellant	:	Mr M McCusker QC & Ms L Rowley
Third Appellant	:	Mr M McCusker QC & Ms L Rowley
Fourth Appellant	:	Mr M McCusker QC & Ms L Rowley
Respondent	:	Mr G R Ritter QC & Ms K L Browne

Solicitors:

First Appellant	:	Rowley Legal
Second Appellant	:	Rowley Legal
Third Appellant	:	Rowley Legal
Fourth Appellant	:	Rowley Legal
Respondent	:	HopgoodGanim Lawyers

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

Carson v Department of Environment and Planning (1985) 3 NSWLR 99

Federal Commissioner of Taxation v Smorgon [1977] 16 ALR 721

Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 78 ALJR 1022

Mandurah Enterprises v Western Australian Planning Commission [2008] WASCA 211

Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337

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

Scutti v City of Wanneroo [2017] WASC 70

Town of East Fremantle v Cornell [2005] WASCA 18

Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106

Wines v Shire of Harvey [2000] WASCA 39

JUDGMENT OF THE COURT:

Introduction

1. This is an appeal against the decision of Le Miere J in Scutti v City of Wanneroo[1] (primary decision).

   [1] Scutti v City of Wanneroo [2017] WASC 70.

2. The primary decision concerned an appeal by the appellants from a determination of the State Administrative Tribunal (Tribunal) that lot 1 (owned by the appellants) and lot 8 (owned by the first appellant) were not injuriously affected within the meaning of s 174 of the Planning and Development Act 2005 (WA) (PD Act) by the making or amendment of the City of Wanneroo District Planning Scheme No 2 (DPS2) by the adoption of Agreed Local Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6 (ASP6).[2]

   [2] Primary decision [1].

3. The primary judge dismissed the appellants' appeal against the Tribunal's decision, and the appellants now appeal against the primary decision.

Background

1. The appellants are registered proprietors as tenants in common of lot 1, Wanneroo Road, Pearsall (Lot 1)[3]  and the first appellant is the sole registered proprietor of lot 8, Wanneroo Road, Pearsall (Lot 8).[4]

   [3] Primary decision [1].

   [4] Primary decision [1].

2. On 6 July 2001, DPS2 was gazetted.[5]  Pursuant to DPS2, Lots 1 and 8 are zoned 'Urban Development'.[6]

   [5] Chronology, WB 47.

   [6] Primary decision [1].

3. On 24 June 2002, the Western Australian Planning Commission (WAPC) adopted ASP6, which encompassed an area including Lots 1 and 8.[7]  In ASP6, substantial parts of Lots 1 and 8 are identified as within an area of 'Public Open Space'.[8]  Clause 6 of ASP6 provides, with respect to Public Open Space:

   6.PUBLIC OPEN SPACE (POS) PROVISION

   The following Schedule 3 details the Public Open Space (POS) which is to be provided by landholders for each lot within Cell 4.  The POS allocation reflects the distribution of POS on the Agreed Local Structure Plan for Cell 4.

   [7] Primary decision [1].

   [8] Primary decision [1].

4. On 10 April 2013, the appellants lodged a development application for approval of an addition/extension to an existing rural use on Lots 1 and 8, namely to construct a rural shed (Shed Application).[9] 

   [9] Chronology, WB 47; GB 17, 21.  Cf primary decision [2] which states that the first appellant made the Shed Application.

5. On 4 July 2013, the respondent, City of Wanneroo (City), refused the Shed Application.  It gave the following reasons:[10]

   1.The City considers that the proposed shed addition to the above property would constitute an intensification of a 'Rural Use' in an area zoned 'Residential' which may have an adverse impact on the surrounding locality.

   2.The proposal does not meet the objectives of the 'Residential Precinct' as outlined in Clause 4.1 of [ASP 6] as approval of the proposed shed will compromise the development of the precinct for residential purposes in the medium and long term.

   3.Approval of the proposed shed will prejudice the future planned use of the site, in this case being for Public Open Space, contrary to Clause 4.1(c) of ASP 6.  (emphasis added)

   [10] Primary decision [49].

6. On 3 December 2013, the appellants lodged a further development application for approval to construct grouped housing on Lots 1 and 8 (Grouped Housing Development Application).[11]  On 13 March 2014, the Metropolitan North‑West Joint Development Assessment Panel (JDAP) refused the Grouped Housing Development Application on the basis, relevantly for present purposes, that the proposal was inconsistent with, and contrary to, cl 6 and sch 3 of the ASP6 as the ability for the provision of Public Open Space would be compromised.[12]

   [11] Chronology, WB 47.

   [12] Chronology, WB 48. The Grouped Housing Development Application was also rejected on two other bases set out in primary decision [49].

7. On 3 April 2014, the appellants lodged a composite claim with the WAPC and the City for compensation for the injurious affection of their land allegedly caused by the adoption of ASP6 (the Claim).  The City disputed that the appellants' land had been injuriously affected.[13]

   [13] Primary decision [3]; chronology, WB 48.

8. On 3 July 2014, the City notified the appellants that it did not intend to purchase the Lots the subject to the Claim pursuant to s 187(2) of the PD Act.[14]

   [14] Chronology, WB 48.

9. On 20 November 2015, the appellants' solicitors notified the City's solicitors that the appellants intended to appoint an arbitrator to resolve the claim for injurious affection against the City.[15]

   [15] Chronology, WB 48.

10. On 27 November 2015, the City notified the appellants that the City denied that Lots 1 and 8 were injuriously affected.[16]

    [16] Chronology, WB 48.

11. On 16 December 2015, the appellants' solicitors issued an originating motion in the Supreme Court of Western Australia for the appointment of an arbitrator pursuant to s 11(3)(b) of the Commercial Arbitration Act 2012 (WA) and pursuant to s 176(2) of the PD Act.[17]

    [17] Chronology, WB 48.

12. On 22 December 2015, the City applied to the Tribunal under s 176(1) of the PD Act for a determination of whether Lots 1 and 8 are injuriously affected.[18]

    [18] Primary decision [3].

13. The Tribunal's decision was delivered on 23 August 2016 in City of Wanneroo and Scutti.[19]  The Tribunal observed that neither party contended that the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (PD Regulations), and, in particular, the 'deemed provisions' of the PD Regulations,[20] applied to the issues for determination.  The Tribunal said that the relevant provisions of the Scheme were those applicable as at (in effect) 13 March 2014 upon the refusal of the Grouped Housing Development Application.[21]

    [19] City of Wanneroo and Scutti [2016] WASAT 102 (Tribunal decision).

    [20] See PD Act s 256(5) and s 257B, PD Regulations reg 10(4) and sch 2.

    [21] Tribunal decision [20(c)], [23].

14. The Tribunal said that ASP6 was not incorporated into DPS2.  Nor was ASP6 an amendment, or equivalent to an amendment, to DPS2.[22] Nevertheless, 'if [DPS2] … together with … ASP6 have the effect of causing any of the outcomes specified in s 174(1) of the PD Act' then the 'making of [DPS2] … and the inclusion of cl 9.8.2 and cl 9.8.3 in [DPS2] … may … have resulted in injurious affection of the land'.[23]

    [22] Tribunal decision [25] - [31], [71].

    [23] Tribunal decision [32].

15. The Tribunal found that Lots 1 and 8 were not injuriously affected by the making or amendment of DPS2 by the adoption of ASP6.[24] In relation to the potential application of s 174(1)(c) of the PD Act, the Tribunal assumed that the appellants' existing uses were non‑conforming uses,[25] but said that there were no agreed facts identifying the pre‑existing lawful use of the appellants' land.[26]

    [24] Tribunal decision [75]; primary decision [4]; chronology, WB 48.

    [25] Tribunal decision [69].

    [26] Tribunal decision [64].

16. On 8 September 2016, the appellants appealed the Tribunal's decision to the Supreme Court.[27] By s 105(1) of the StateAdministrative Tribunal Act 2004 (WA) (the SAT Act) the appeal required leave, and by s 105(2) of the SAT Act, the appeal could only be brought on a question of law.

    [27] Chronology, WB 48.

17. On 17 January 2017, the appeal and the application for leave were heard by the judge.  On 21 March 2017, the judge delivered the primary decision and granted leave to appeal, but dismissed the appeal.

18. In the course of the hearing of the appeal to this court, reference was made by the court to the Tribunal's observations to the effect that if the appellants succeeded, there may be an issue as to whether the cause of the injurious affection has since been revoked or amended.[28]  The parties indicated, in effect, that they would endeavour to reach agreement upon this issue.[29]  The court was subsequently informed, on 20 May 2018, that no agreement had been reached.

    [28] Tribunal decision [28].

    [29] Appeal ts 43 - 44.

19. In these reasons, consistently with the parties' approach in the Tribunal and before the judge, and in this court, the statutory position referred to is that as at the date of the refusal of the Grouped Housing Development Application, ie, 13 March 2014.[30]

    [30] See, eg, appellants' amended submissions before the primary judge, pars 39 - 47, BB 34 - 35; appellants' written submissions to this court, par 47, WB 17; respondent's written submissions to this court, par 33(a), WB 41; appeal ts 33 - 34, 82.

Compensation for injurious affection under the PD Act

1. Division 2 of pt 11 of the PD Act is headed 'Compensation where land injuriously affected by planning scheme' and comprises s 172 ‑ s 183.

2. Section 173(1) of the PD Act provides, relevantly, as follows:

   173.Injurious affection, compensation for

   (1)Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.  (emphasis added)

3. Section 174(1)(a) and (b) of the PD Act provide, relevantly, as follows:

   174.When land is injuriously affected

   (1)Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if -

   (a)that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose; or

   (b)the scheme permits development on that land for no purpose other than a public purpose[.]  (emphasis added)

4. By s 4 of the PD Act, a 'planning scheme' includes a local planning scheme and a Metropolitan Region Scheme. 

5. By s 172 of the PD Act, the term 'public purpose' is defined as follows:

   public purpose means a purpose which serves or is intended to serve the interests of the public or a section of the public and includes a public work.[31]

   [31] Section 4 of the PD Act defines 'public work' to include any public work as defined in the Public Works Act 1902 (WA). The latter statute defines, in s 2, 'public work' to include parks or gardens or grounds for public recreation.

6. Section 174(1)(c) of the PD Act, which is in the alternative to s 174(1)(a) and (b), provides:

   174.When land is injuriously affected

   (1)Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if -

   …

   (c)the scheme prohibits wholly or partially -

   (i)the continuance of any non‑conforming use of that land; or

   (ii)the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non-conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.  (emphasis added)

7. Section 172 of the PD Act defines 'non‑conforming use', as follows:

   non-conforming use means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7;

8. The reference in the above definition to 'a matter specified in Schedule 7 clause … 6' is a reference to zoning and the designation of uses in zones.[32]

   [32] See sch 7 of the PD Act set out in [61] below.

9. Section 173, and each of subpars (a) ‑ (c) of s 174(1), apply to a person whose land is injuriously affected by or by reason of 'the making or amendment of a planning scheme'. Section 75 of the PD Act provides:

   75.Amending scheme

   A local government may amend a local planning scheme with reference to any land within its district, or with reference to land within its district and other land within any adjacent district, by an amendment -

   (a)prepared by the local government, approved by the Minister and published in the Gazette; or

   (b)proposed by all or any of the owners of any land in the scheme area, adopted, with or without modifications, by the local government, approved by the Minister and published in the Gazette.

10. Section 68 of the PD Act provides, in effect, that a town planning scheme in force under the Town Planning and Development Act 1928 (WA) (TPD Act 1928), when s 68 comes into operation, continues as a local planning scheme under the PD Act, and has effect as if enacted by the PD Act.

11. Further, s 87(4) of the PD Act provides:

    A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act.

12. By s 192 of the PD Act, in relation to the assessment of the amount of compensation to be paid for any land compulsorily acquired by a responsible authority under s 191, regard is to be had to any amounts of compensation already paid, or payable, by the responsible authority in respect of the land under div 2 (dealing with injurious affection).

The appeal to the primary judge

1. There were three grounds of appeal before the judge, which the judge summarised as involving contentions to the effect that:[33]

   1.the land is reserved for a public purpose within the meaning of s 174(1)(a) of the PD Act (ground 1);

   2.DPS2, as affected by ASP6, does not permit development on the land for any purpose other than a public purpose within the meaning of s 174(1)(b) of the PD Act (ground 2); and

   3.for the purpose of s 174(1)(c) of the PD Act, DPS2, as affected by ASP6, prohibits wholly or partially -

   (a)the continuance of any non-conforming use of the land; and

   (b)the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non-conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the City (ground 3).

   [33] Primary decision [23], [25].

The primary judge's reasons

Ground 1 (s 174(1)(a) of the PD Act)

1. The judge said that the critical provisions of DPS2 are cl 9.8.2 and cl 9.8.3.[34]  Those provisions provide, most relevantly:

   [34] Primary decision [18], [37].

   9.8.2Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:

   (a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and

   (b)provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area.

   9.8.3Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:

   …

   (e)where land is classified as a Local Authority Reservation, the rights, provisions and procedures, and the obligation of the Council in regard to compensation shall apply as if the land was correspondingly reserved under the Scheme[.]  (emphasis added)

2. His Honour said, in effect, that cl 9.8.2 provides that the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in the Scheme when the Agreed Structure Plan 'imposes a classification on the land included in it by reference to reserves, zones …'.  His Honour also said that the effect of cl 9.8.3(e) is that the rights of a landowner and the obligation of the City in regard to compensation shall apply as if the land was reserved under the Scheme where the land 'is classified as a Local Authority Reservation'.[35]

   [35] Primary decision [38].

3. His Honour held, in effect, that:[36]

   1.In relation to cl 9.8.3(e), ASP6 does not 'classify' the appellants' land as a Local Authority Reservation.

   2.In relation to cl 9.8.2, ASP6 does not either 'impose a classification on the land', or do so 'by reference to reserves'.

   [36] Primary decision [39].

4. His Honour accordingly dismissed ground 1.

Ground 2 (s 174(1)(b) of the PD Act)

1. The judge observed that the appellants contended that the Tribunal erred in failing to find that DPS2 permitted development on the appellants' land for no purpose other than a public purpose by (1) erroneously treating the appellants' land as zoned Residential, when it was zoned Urban Development; and (2) failing to find that identification of Public Open Space is itself the identification of the permitted, and only permissible, use for the appellants' land.[37]

   [37] Primary decision [40].

2. The judge observed that the appellants' land is in an area identified in the zoning plan in ASP6 as 'Residential Precinct', and that cl 4.1 of ASP6 deals with the permissible uses in the Residential Precinct.  The judge said that 'the effect of the zoning plan (in ASP6) and cl 4.1 of ASP6 is that "the appellants" land is zoned Residential Precinct and the permissible uses are in accordance with the Residential Zone as specified under DPS2.  In addition, rural uses may be considered although some specified rural uses … will generally be discouraged'.  The judge also said that cl 4.1 further provides that if a rural use is applied for, consideration is to be given to the matters in pars (a) ‑ (f) of cl 4.1 of ASP6.[38]

   [38] Primary decision [43].

1. The judge then referred to sch 2, pt 4, cl 27 of the PD Regulations, and said, in effect, that in considering an application for planning approval, the City must 'have due regard to' but is not bound by ASP6.  Further, by cl 6.8 of DPS2, the City must have regard to such of the specified matters as are in the opinion of the City 'relevant to the use of development subject of the application', which matters include any Agreed Structure Plan.  The words 'due regard to' mean that the City must give proper, genuine and realistic consideration to those provisions which is adequate in all the circumstances.  However, the City is not bound by the Agreed Structure Plan.[39]  The City may, in considering an application for development approval, depart from the Agreed Structure Plan if it is consistent with proper and orderly planning.[40]  Accordingly, his Honour concluded the City is not prohibited from giving planning approval for uses that are in accordance with the Residential Zone and rural uses subject to the qualification that rural development involving high capital investment, offensive trades, mushroom farms and/or of a long term nature will generally be discouraged.[41]

   [39] Primary decision [44], [46].

   [40] Primary decision [46].

   [41] Primary decision [47].

2. The judge accordingly dismissed ground 2.

Ground 3 (s 174(1)(c) of the PD Act)

1. The judge observed, relevantly for present purposes, that the appellants contended that the Tribunal erred in law in finding that DPS2 did not wholly or partially prohibit the erection, alteration or extension of any building in connection with a non‑conforming use, given that the existing non‑conforming use of the appellants' land was a rural use, which was a prohibited use in the Residential Zone in the Zoning Table in DPS2.[42]

   [42] Primary decision [51].

2. The judge observed that pt 7 of DPS2 deals with non‑conforming uses. His Honour quoted, with evident reference to s 174(1)(c)(ii) of the PD Act, cl 7.2 of DPS2 which provides, relevantly:[43]

   7.2.1A person shall not alter or extend a non-conforming use or erect, alter or extend a building used in conjunction with a non‑conforming use … without first having applied for and obtained planning approval under the Scheme.

   7.2.2An application for planning approval under this Clause shall be advertised in accordance with subclause 6.7.1.

   [43] Primary decision [54] - [56].

3. His Honour said:[44]

   Therefore, DPS2, as operated on or affected by ASP6, does not prohibit wholly or partially the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non‑conforming use of the land, which but for the prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the City.  (emphasis added)

   [44] Primary decision [56].

4. The judge accordingly dismissed ground 3.

Ground of appeal before this Court

1. The appellants rely on one ground of appeal.  It is to the effect that the judge should have held, and erred in law in failing to hold, that the appellants' land had been injuriously affected by the making or amendment of DPS2, and that the appellants were therefore entitled to obtain compensation for injurious affection pursuant to s 173 of the PD Act.[45]

   [45] Appellants' case, grounds of appeal, WB 7.

2. The appellants, to a large extent, in effect, repeat the contentions advanced in the primary court, and submit that the judge erred:

   1.in concluding that the land was not reserved under DPS2 for a public purpose within the meaning of s 174(1)(a) of the PD Act;

   2.in failing to find that DPS2 permits development on the land for no purpose other than a public purpose within the meaning of s 174(1)(b) of the PD Act; and

   3.failing to find that, for the purpose of s 174(1)(c)(ii) of the PD Act, DPS2 prohibits, wholly or partially, the erection, alteration or extension on the land of any building in connection with, or in furtherance of, any non‑conforming use of the land which, but for that prohibition, would not have been an unlawful erection, alternation or extension.[46]

The appellants' first contention

[46] Senior counsel for the appellant made it clear that ground 3 only applies to s 174(1)(c)(ii); appeal ts 37, 41.

1. In relation to the appellants' first contention, the appellants submit, in effect, that cl 6 of ASP6, which provides for the 'Public Open Space … which is to be provided by landholders' is, on the proper construction of DPS2 cl 9.8.2(a), a 'classification' which ASP6 'imposes … on the land … by reference to reserves', and, or alternatively, involves the land being classified as a 'Local Authority Reservation' within the meaning of DPS2 cl 9.8.3(e). 

2. The appellants contend that DPS2, and cl 9.8 in particular, should be construed broadly, rather than pedantically, and with a sensible practical approach:  Re Shire of Mundaring; Ex parte Solomon.[47]  The appellants also rely on the observations of Samuels JA in Carson v Department of Environment and Planning.[48]  In that case, the relevant legislative provision referred to a circumstance where a planning instrument 'reserves land for use exclusively for a [specified] purpose'.[49]  Samuels JA said that the word 'reserve' in that context means 'to set apart'.[50]

The appellants' second contention

[47] Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 [25]. Reference is also made to Mandurah Enterprises v Western Australian Planning Commission [2008] WASCA 211 [37]; and Federal Commissioner of Taxation v Smorgon [1977] 16 ALR 721, 729.

[48] Carson v Department of Environment and Planning (1985) 3 NSWLR 99, 104.

[49] Carson (100).

[50] Carson (104).

1. In relation to their second contention, the appellants submit that 'public purpose' is defined broadly in s 172 of the PD Act to mean 'a purpose which serves or is intended to serve the interests of the public or a section of the public and includes a public work'.  They submit that the purpose of providing Public Open Space located in a residential setting must be to serve the interests of the public by, for example, providing a community amenity in that setting.  The appellants refer to cl 9.8.3(f) of DPS2 to the effect that any provision, standard or requirement in ASP6 'shall be given the same force and effect as if it was a provision, standard or requirement of this Scheme'.  They submit that whilst the City is required to have 'due regard' to ASP6[51] in any development application, paying 'due regard' to the Public Open Space requirement of ASP6 will inevitably result in the development of the land being prohibited other than for a public purpose.

The appellants' third contention

[51] By cl 6.8(f) of DPS2.

1. The appellants appeared to contend that both 'Intensive Agriculture' and 'Rural Use' are existing, non‑conforming uses within the definition of 'non‑conforming use' in s 172 of the PD Act.[52]  They submit that each such use is denoted 'X' in the Zoning Table for the Residential Zone.  They contend, in effect, that DPS2, as amended by ASP6, prohibits wholly or partially the erection of a building et cetera in furtherance of such non‑conforming uses.[53]

   [52] The definition is set out in [82] below.

   [53] Appellants' written submissions, pars 60 - 66, WB 19 ‑ 20; appeal ts 40 - 41.

2. The appellants refer to the Full Court's decision in Town of East Fremantle v Cornell,[54] which concerned the proper construction and application of s 12(2a)(b)(i) of the TPD Act 1928, which was effectively in the same terms as s 174(1)(b) of the PD Act.[55]  In Cornell, the land was designated as having heritage value and the Scheme provided that 'a person shall not without the special approval of the Council carry out any development'.[56]  It was not suggested that the provision amounted to a reservation under the Scheme.  Rather, the question was whether the provision meant that development was permitted for no purpose other than a public purpose.  The primary judge had held, in effect, that notwithstanding the prospect of dispensation by 'special approval', the overall effect of the provision was that the Scheme permitted development of the relevant land for no purpose other than a public purpose.[57]  The Council, on appeal, argued that, properly construed, the Scheme 'permits any development upon the land provided that the special approval of the Council is given'.[58]  The Full Court, by majority (Le Miere J, Murray J agreeing), dismissed the appeal.

The City's submissions

[54] Town of East Fremantle v Cornell [2005] WASCA 18.

[55] Cornell [11] ‑ [12].

[56] Cornell [20], [43], [70].

[57] Cornell [47].

[58] Cornell [61].

1. The City, in its submissions, contends in relation to the appellants' first contention that:

   1.The ground of appeal discloses no specified or discernible error.[59]

   [59] Respondent's written submissions, par 1; WB 26.

   2.The appellants' written submissions to the effect that 'it is the Appellants' land POS which is the subject matter of this appeal' involves the introduction of a new case on appeal.[60]

   [60] Respondent's written submissions, pars 11 - 12; WB 29.

   3.The appellants' reference to s 18 of the Interpretation Act 1984 (WA) in relation to the question of construction seeks to introduce a new case.[61]

   [61] Respondent's written submissions, par 19(i); WB 35.  Section 18 of the Interpretation Act provides that in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object.

   4.The appellant's submission that the 'Residential Precinct is not a Zone - it is a Precinct' raises 'an entirely new case'.[62]

   [62] Respondent's written submissions, par 15; WB 31.

   5.The judge was correct in concluding that ASP6 did not involve a classification, or 'classify', land by reference to 'reserve' or 'Local Authority Reservation'.  Accordingly, cl 9.8.2 and cl 9.8.3 of DPS2 'have no work to do'.  Rather, ASP6 is an 'allocation', or an 'indication'. 

   6.The reliance by the appellants on Carson, is misplaced. [63]

   7.The appellants' reference to State Planning Policy and orderly and proper planning seeks to introduce a new case.[64]

   8.Regard should be had to the ministerial statement made with reference to an amendment to the Metropolitan Region Town Planning Scheme Act 1959 (WA) to the effect that the 'amendment proposes that compensation for injurious affection be limited to … where consent to develop is refused on the ground of reservation under the scheme'.[65]

   9.An Agreed Structure Plan cannot create a reserve.[66]  The words 'imposes a classification on the land in [the Agreed Structure Plan] by reference to reserves' in cl 9.8.2 of DPS2 are intended to operate upon a pre‑existing reserve under the planning scheme (DPS2), and signify that an Agreed Structure Plan may impose particular use restrictions on that pre‑existing reserve.[67]

   10.ASP6 does not classify land by reference to 'reserves' expressly.  Nor does it do so 'by reference to land which is [already] reserved'.[68]

   11.The Zoning Table for the Residential Zone (referred to in cl 4.1 of ASP6) indicates various uses that are designated 'D' (not permitted unless approval is given after following the procedures in cl 6.6.2 of DPS2) and one is designated 'P' (permitted subject to any conditions that the City may impose).[69]

   12.An Agreed Structure Plan may be amended, under cl 9.7 of DPS2, by the local council with the approval of the WAPC.  An amendment to an Agreed Structure Plan does not involve the Minister.  That may be compared with the position with respect to amendments to the planning scheme itself - which, by s 87 of the PD Act, requires the approval of the Minister.[70]  Thus, if land is reserved in a planning scheme 'from day one', it cannot be changed by the local council.  Any change would have to be sanctioned by the Minister.[71] What is required by s 174(1)(a) is that the land is reserved 'under the planning scheme'.[72]

   13.On the other hand, the distribution of Public Open Space on an Agreed Structure Plan 'can change [and] it does change'.  It is something 'far more temporary'.[73]

   14.Even if the land had been 'reserved' within the meaning of cl 9.8.3(e) of DPS2, that 'wouldn't have been enough because it's not reserved - not reserved in fact'.  It is only then treated 'as if' it were correspondingly reserved under DPS2.[74] It is only 'deemed' to be reserved. A 'deemed' reserve of land is not land 'reserved … under the planning scheme for a public purpose' within the meaning of s 174(1)(a) of the PD Act.[75]

   15.It is not just the person whose land 'has POS on it' that must make a contribution of 10% of the cell area for Public Open Space.  Reference is made to cl 10.5.1(a) of DPS2.[76]

   [63] Respondent's written submissions, pars 18 - 20; WB 33 - 35; see also appeal ts 77, 82.

   [64] Respondent's written submissions, par 23; WB 37.

   [65] Respondent's written submissions, par 25; WB 58; Western Australia, Parliamentary Debates, Legislative Assembly, 4 September 1962, 820.

   [66] Appeal ts 61 - 62.

   [67] Appeal ts 61 - 62.

   [68] Appeal ts 67.

   [69] Appeal ts 45 - 46.

   [70] Appeal ts 54 - 55.

   [71] Appeal ts 57.

   [72] Appeal ts 54.

   [73] Appeal ts 70.

   [74] Appeal ts 57.

   [75] Appeal ts 58.

   [76] Appeal ts 65.

2. In relation to the appellants' second contention, the City contends, in effect,[77] that the reference to Public Open Space in ASP6 is a 'mere allocation', and that it does not influence or detract from the permitted uses provided for in cl 4.1 of ASP6 concerning the Residential Precinct.  The judge correctly found that the development of land is permitted in accordance with cl 4.1 and with reference to the Residential Zoning under DPS2.  The City also generally supports the judge's reasoning.

   [77] Respondent's written submissions, pars 27 - 33; WB 39 - 41.

3. In relation to the appellants' third contention, the City contends, in effect, that the judge was correct for the reasons he gave.[78]

   [78] Respondent's written submissions, pars 34 - 35; WB 42 - 43.

The broader legislative background

1. At the outset, it may be noted that the history of the reservation of land for public purposes in this State was outlined by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission.[79]  The court's observations included the following:[80]

   [79] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [243] ‑ [256].

   [80] Mount Lawley [243].

   A convenient starting point is the report prepared, in 1955, for the government of Western Australia by Messrs Gordon Stephenson and J A Hepburn in respect of a plan for the metropolitan region of Perth and Fremantle.  The authors recognised that, where all forms of development were prohibited on a particular parcel of land, the land should be reserved, requiring its subsequent acquisition (page 249).  They said that, while it would obviously be more advantageous for the Regional Planning Authority to make the acquisitions immediately, this would be difficult to achieve without a considerable sum of money being available.  They went on to say (at page 250):

   'It is important, however, to ensure that as and when these reservations are required the necessary land can be bought without any value accruing to it by reason of additional substantial development.  Such development could be prevented on payment of compensation for injurious affection, but this is only putting off eventual acquisition at increased value and, in many cases, the compensation for injurious affection may well amount to the whole of the existing value of the land.

   Consequently, it is considered that where development threatens a reservation for regional purposes, and provided no minor adjustment in detail is possible, the land should be acquired.

   In the case of some of the longer term regional proposals there is nothing to prevent the present use of the land being carried on for a number of years, and it is anticipated that in some of the outer areas this may well be the case.

   It is very necessary that the regional planning authority should have power to acquire or resume land required for the purposes of the plan, in the same way that a local authority has power under the Town Planning and Development Act at the present time.'

   At page 283 of the report, the authors said:

   'Where land is required for a public purpose, and is shown as such in a town planning scheme, zoning does not always meet the case.  Even though the land may not be required for the public purpose for many years, and the present use may continue to be enjoyed during that time, the ultimate use will exclude private development.

   In a town planning scheme such land should be classified as a reservation which carries with it the inherent obligation on the part of the planning authority to purchase it.  As a planning scheme envisages development for many years ahead it is likely that a number of reservations will not actually be required for their planned use until perhaps one or two decades have passed, and it is possible that they need not be acquired until just before that time.  However, because the reservation virtually prevents the use of the land for other than its existing use and perhaps a limited extension, it is necessary to make provision for the reservation or any part of it to be acquired if the owner desires to develop it and the reservation prevents such development.'

The PD Act

1. Part 11 of the PD Act is headed 'Compensation and acquisition'.  Sections 172, 173 and 174 of the PD Act, insofar as relevant, have been set out earlier, as has s 75 (relating to amendments to a planning scheme).  The PD Act also includes the following provisions.[81]

Objects

[81] The subheadings below are used as a guide for the purpose of these reasons, and are not part of the statutory text.

1. Section 69(1) provides:

   69.General objects of schemes

   (1)A local planning scheme may be made under this Act with respect to any land -

   (a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and

   (b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.  (emphasis added)

2. Schedule 7 of the PD Act provides, relevantly:

   5.Roads, public works, reservation of land, provision of facilities

   (1)Roads, intersections, corners and all objects, works, trees or shrubs associated with, constructed or located on, below or adjacent to roads, intersections and corners.

   (2)Public works and undertakings of any kind including lighting, water, sewerage, drainage, public transport and associated facilities on land and water.

   (3)The reservation of land for public purposes.

   (4)The provision and location of public facilities and conveniences and any other objects or works on the land.

   6.Zoning

   (1)Zoning of the scheme area for appropriate purposes.

   (2)Designation of uses in zones as permitted, prohibited or requiring approval.

   7.Controls for land management

   Controls for land or site management for matters to which this Act relates.

   …

   9.Development controls

   Approval, refusal or approval subject to conditions of any use or class or kind of development by a consideration of any matter to which the Act relates including the public interest.  (emphasis added)

Local planning schemes - provisions

1. Section 256(1) and (5) provide, in effect, that the Minister may make regulations for prescribing provisions in local planning schemes called 'model provisions' and 'deemed provisions'.

2. By s 257A, the Minister may, when approving a local planning scheme, approve the exclusion from, or variation in, the scheme of a 'model provision'.

1. By s 257B, if a 'deemed provision' is inconsistent with other provisions of the scheme, the deemed provision prevails.  Also, when preparing a local planning scheme, the local government must ensure that the scheme is consistent with any deemed provision that applies to the scheme.

2. The PD Regulations, which relevantly commenced with effect from 19 October 2015, include both 'model provisions' to which s 257A of the PD Act applies, and 'deemed provisions' to which s 257B applies.[82]  Part 4 of sch 2 of the PD Regulations deals extensively with 'structure plans'.  In other words, the provisions dealing with structure plans are 'deemed provisions' to which s 257B of the PD Act applies, and they had not come into operation by 13 March 2014.[83] 

DSP2

[82] The model provisions are in sch 1 of the PD Regulations, and the deemed provisions are in sch 2 of the PD Regulations.

[83] The regulations which applied as at 13 March 2014 were the Town Planning Regulations 1967 (WA): notes to the PD Act, div 3 - transitional provisions, cl 25 and s 8 of the TPD Act 1928.

1. DPS2 provides, relevantly, as follows.

2. Clause 1.4 provides that the Scheme comprises, amongst other things, the Scheme Text, the Scheme Map, and the Residential Density Code Maps.

3. Clause 1.9 provides, in effect, that (1) words and expressions used in DPS2 have the same meanings given to them in sch 1 or elsewhere in the scheme and the Residential Design Codes; (2) where a word or term is defined in the Residential Design Codes then when that word or term is used in respect of residential development, it has the meaning given to it in the Residential Design Codes; and (3) words and expressions not defined in sch 1 or elsewhere in the Scheme or in the Residential Design Codes shall have their normal and common meanings.

4. In sch 1 of DPS2, the word 'reserve' is defined to mean 'any land reserved for a public purpose'.  Also, the term 'public purposes' is defined to include 'Government and Local Authority Purposes' (the latter term not being defined).  The term 'Local Reserve' is defined to mean 'land, other than a regional reserve, which is reserved for a specific purpose'.  The term 'regional reserve' is not defined but, it may be inferred, means land reserved under the Metropolitan Region Scheme referred to in cl 2.2. 

5. The term 'structure plan' is defined in sch 1 to mean 'a document consisting of maps and text making provision for the subdivision and/or development of the specific area, and which provides a policy framework for such future subdivision and development.[84]

Reserves

[84] GB 163.

1. Part 2 of DPS2 is headed 'Reserves' and contains the following relevant provisions:

   2.1RESERVES

   Certain lands within the Scheme Area are shown on the Scheme Map and classified into either:

   a)Metropolitan Region Scheme Reserves; or

   b)Local Reserves.

   2.2METROPOLITAN REGION SCHEME RESERVES

   2.2.1The land shown as 'Metropolitan Region Scheme Reserves' on the Scheme Map are lands reserved under the Metropolitan Region Scheme and are shown on the Scheme Map … Those lands are not reserved by this Scheme.  The provisions of the Metropolitan Region Scheme continue to apply to such reserves.

   …

   2.3LOCAL RESERVES

   2.3.1Local Reserves

   Local Reserves are delineated and depicted on the scheme Map according to the legend thereon.

Application for development on Local Reserves

1. Clause 2.3.2 and cl 2.3.4 deal with the use and development of Local Reserves, and provide:

   2.3.2Use and Development of Local Reserves

   A person shall not use, commence or carry out development on a local reserve without first having obtained planning approval under pt 6 of the Scheme. …

   …

   2.3.4Applications for Planning Approval on Local Reserves

   2.3.4.1The Council when considering applications for Planning Approval for land within a Local Reserve shall have due regard to the ultimate purpose intended for the Local Reserve and the relevant matters set out in clause 6.8. …

   2.3.4.2Provisions in the Scheme relating to applications for Planning Approval and the exercise of any discretion thereon shall, insofar as they are not inconsistent with this clause, apply to Local Reserves.

   2.3.4.3The Council shall treat an application for planning approval for land within a local reserve as though the development involves a 'D' use and such of the provisions of Part 3 and Part 6 as are relevant to 'D' uses shall apply.

   2.3.4.4To the extent that is reasonable to do so, the Council shall apply or impose development standards and requirements which would be imposed for development of the kind in question on zoned land, and the Council shall for that purpose stipulate the zone most relevant for comparison.

   2.3.4.5Where any land is partly zoned under the Scheme and partly included in a Local Reserve, then the general provisions of the Scheme shall apply to the part which is zoned, and where the circumstances permit, the Council may give one decision in respect of the part of the land which is zoned and a different decision in respect of the part of the land included in the Local Reserve.

   2.3.4.6The Council shall, in the case of land reserved for the purposes of a public authority, consult with that authority before giving its approval. 

2. The legend on the Scheme Map for DPS2 identifies 'Local Scheme Reserves' of the following types:  'Parks and Recreation', 'Conservation', and 'Public Use'.  'Public Use' is denoted as 'High School' and 'Primary School'.[85]

Zones

[85] GB 249.

1. Clause 3.1 is headed 'Zones'.  Clause 3.1.1 provides for the zones which are 'used for the classification of land within the Scheme Area'.  The zones include Residential, Urban Development, and General Rural.

2. By cl 3.2.1, the Zoning Table (Table 1) indicates, subject to the provisions of the Scheme, the permissibility of use classes within the various zones.  By cl 3.2.2, a 'P' use means:

   A use class that is permitted but which may be subject to any conditions that the Council may wish to impose in granting its approval.

3. By cl 3.3.2, the symbol 'D' in the Zoning Table means:

   A use class that is not permitted, unless the Council grants its approval after following the procedures laid down by subclause 6.6.2.

4. Also by cl 3.3.2, the symbol 'X' in the Zoning Table means:

   A use class that is not permitted except where provision is made specifically for Council to approve an otherwise prohibited use.

5. Clause 3.4 deals with the Residential Zone and provides:

   3.4.1The Residential Zone is intended primarily for residential development in an environment where high standards of amenity and safety predominate to ensure the health and welfare of the population.

   3.4.2Residential development is provided for and a range of densities with a variety of housing to meet the needs of different household types.  This is done through the application of the Residential Design Codes (R Codes), and the allocation of a residential density code to an area of land.

   3.4.3The objectives of the Residential Zone are to:

   (a)maintain a predominantly single residential character and amenity of established residential areas;

   (b)provide the opportunity for grouped and multiple dwellings in selected locations so that there is a choice of the type of housing available within the City;

   (c)provide the opportunity for aged persons housing in most residential areas in recognition of an increasing percentage of aged residents within the City; and

   (d)provide for compatible urban support services.

6. The uses described as 'Intensive Agriculture' and 'Rural Use' are marked 'X' in the Residential Zone.[86]

Urban Development

[86] The Zoning Table; GB 146 - 148.

1. The provisions of DPS2 dealing with Urban Development are set out in [97] ‑ [100] below.

Development and use of land

1. Part 6 contains, relevantly, the following provisions:

   6.1APPLICATION FOR PLANNING APPROVAL

   6.1.1The Council's Planning approval is required for any development on or partly on any land zoned or reserved under the Scheme other than development referred to in subclause 6.1.3, and with those exceptions no person shall commence or carry out any development unless the Council's approval has first been obtained.

   …

   6.3PROCEDURES FOR DEALING WITH APPLICATIONS RECEIVED

   …

   6.3.2An application for Planning Approval in respect of land which is:

   (a)wholly zoned or reserved by the Scheme;

   …

   shall be dealt with by the Council in accordance with the requirements of the Notice of Delegation published in the Government Gazette from time to time by the [WAPC] acting pursuant to the provisions of Section 20 of the [WAPC Act].

   …

   6.6DEALING WITH 'P', 'D', 'A' AND 'X' USES

   6.6.1'P' Uses - if an application under the Scheme for Planning Approval involves a 'P' Use, the Council shall not refuse the application … But notwithstanding that the Council may in its discretion impose conditions …

   6.6.2'D' Uses - The Council in exercising its discretion as to the approval or refusal of an application for Planning Approval, shall have regard to the provisions of Clause 6.8.

   …

   6.6.4'X' Uses - The Council shall refuse to approve any application for Planning Approval which involves an 'X' use, except as otherwise specifically provided by the Scheme.

   6.8MATTERS TO BE CONSIDERED BY COUNCIL

   The Council in considering an application for planning approval shall have due regard to such of the following matters as are in the opinion of the Council relevant to the use or development subject of the application:

   (a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme Area;

   (b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment, or region scheme or amendment, which has been granted consent for public submissions to be sought;

   …

   (f)any agreed structure plan prepared under the provisions of Part 9 of the Scheme or the desirability of having in place an agreed structure plan in the absence of such a plan;

   ...

   (i)the compatibility of a use or development within its setting;

   …

   (n)the preservation of the amenity of the locality;

   …

   (x)the potential loss of any community service or benefit resulting from the planning approval;

   …

   (aa)any other consideration the Council considers relevant.

   6.9POWER TO DETERMINE APPLICATIONS FOR PLANNING APPROVAL

   6.9.1The Council having regard to the appropriateness of any proposed application for planning approval, may:

   (a)refuse to grant its approval;

   (b)grant approval without conditions;

   (c)grant approval subject to such conditions and requirements as it deems fit; or

   (d)defer consideration or determination of the application to a later time if in the Council's view additional information for, or more detailed investigation of the proposal is required.  (emphasis added)

Non-conforming uses

1. The term 'non‑conforming use' is defined in sch 1 of DPS2 as:

   A use of land which although lawful immediately prior to the coming into operation of the Scheme is not in conformity with a provision of the Scheme dealing with the zoning or classification of land and the permissibility of uses on land so zoned or classified.  The term shall apply in the same way to a use becoming unlawful as a result of an amendment to the Scheme.  A use is not lawful for the purpose of this definition if any planning approval of the Council or other planning authority was not obtained.  (emphasis added)

2. Clause 7.2 of DPS2 relevantly provides:

   7.2EXTENSIONS AND CHANGES TO A NON‑CONFORMING USE

   7.2.1A person shall not alter or extend a non-conforming use or erect, alter or extend a building used in conjunction with a non-conforming use … without first having applied for and obtained planning approval under the Scheme.

   7.2.2An application for planning approval under this Clause shall be advertised in accordance with Clause 6.7.1.  (emphasis added)

3. It is convenient to mention here that the Full Court in Wines v Shire of Harvey[87] construed a provision[88] in similar terms to cl 7.2.1 of DPS2 in relation to the operation of s 12(2a)(b)(ii) of the TPD Act 1928.[89]  In that case, the court (Anderson J, Ipp & Owen JJ agreeing) said:[90]

   The effect of the clause as a whole is not to prohibit the activities referred to, but to require planning consent to be obtained with respect to them. … In the context of town planning, there are many things for which licences and consents are required.  Such activities would not normally be described by people using ordinary language in a town planning context as 'prohibited'.

Agreed Structure Plans

[87] Wines v Shire of Harvey [2000] WASCA 39.

[88] Clause 10.2 of the scheme in that case.

[89] Section 12(2a)(b)(ii) of the TPD Act 1928 was effectively in the same terms as s 174(1)(c) of the PD Act.

[90] Wines [12].

1. Part 9 of DPS2 is headed 'Structure Plans'.

2. By cl 9.3, a Structure Plan shall have regard to or include the matters listed in sch 7 that are appropriate.

3. DPS2 sch 7, pt A, par (f) provides, relevantly, that a structure plan is to include 'proposed major land uses in particular residential areas, public open space (including description and concepts), school sites, [and] community purpose sites'.  DPS2 sch 7, pt A, par (u) provides that a structure plan is also to include developer/proponent contributions towards the provision of necessary infrastructure, including, amongst other things, 'public open space'. 

4. By cl 9.7, an Agreed Structure Plan may, subject to the approval of the WAPC, be amended or revoked by the City.

5. Clause 9.8 of DPS2 relevantly provides:

   9.8.1An Agreed Structure Plan shall come into operation on the later date when it is either certified by [WAPC] pursuant to subclause 9.6.3 or adopted, signed and sealed by the Council under subclause 9.6.5.

   9.8.2Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:

   (a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and

   (b)provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area.

   9.8.3Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:

   (a)in the areas designated as zones, the permissibility of uses shall be the same as set out in Table 1 as if those areas were zones under the Scheme, having the same designation;

   (b)the standards and requirements applicable to zones and R Codings under the Scheme shall apply to the same extent to the areas having corresponding designations under the Agreed Structure Plan; however notwithstanding the provisions of paragraph (f), an Agreed Structure Plan may by a clear statement of intent to do so, make provision for any standard or requirement applicable to zones or R Codings to be varied, and the standard or requirement varied in that way shall apply within the area of the Agreed Structure Plan, or any stipulated part of that area, as if it was a variation incorporated in this Scheme;

   (c)the development control procedures including (without limitation) the procedures for approval of uses and developments under the Scheme shall apply as if the land was correspondingly zoned or reserved under the Scheme;

   (d)provisions duplicating or substantially to the same effect as any provisions of the Scheme shall have the same force and effect in regard to the land in the Structure Plan as if they were provisions of the Scheme;

   (e)where land is classified as a Local Authority Reservation, the rights, provisions and procedures, and the obligation of the Council in regard to compensation shall apply as if the land was correspondingly reserved under the Scheme;

   (f)any other provision, standard or requirement in the Structure Plan shall be given the same force and effect as if it was a provision standard or requirement of this Scheme, but subject to the provision of subclause 9.8.3(b) allowing for a specific variation to a Scheme standard or requirement by a Structure Plan, if there is any other inconsistency or conflict not addressed as an intended variation by the Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail;

   (g)an Agreed Structure Plan may distinguish between provisions, requirements or standards which are intended to have effect as if included in the Scheme, and provisions, requirements or standards not so intended, and it is only the provisions so intended which have that effect. Any other provisions are for guidance or information only, or such other purpose as stipulated in the Agreed Structure Plan documents.  (emphasis added)

6. By cl 9.9, where there is an obligation or liability under an Agreed Structure Plan, the relevant land shall not be subdivided or in any other way developed unless arrangements have been made with the City to discharge that obligation or liability.

7. Clause 9.11.1 of DPS2 provides, relevantly in effect, that it is intended that 'no … development should occur on land in the … Urban Development [zone] … until a Structure Plan in respect of that land has been prepared and adopted'.

East Wanneroo - Cell Works including Public Open Space

1. Part 10 of DPS2 deals with, amongst other things, the development of land within 'Cells' in East Wanneroo.  By cl 10.3, within each Cell, 'Cell Works' will be undertaken 'for the benefit of land contained within the Cell as generally set out in Schedule 9'.  By sch 9, cl 2, Cell Works include the acquisition of approximately 10% of the area of (relevantly for present purposes) Urban Cell 4 for Public Open Space.  By cl 10.5.1(a) of DPS2, all owners of land, including, relevantly, those in Cell 4, 'are required to contribute towards the provision of 10% of the Area of a Cell for Public Open Space'.  Clause 10.6 deals with the calculation of the costs of contributing to the Cell Works, including the costs of contributing to the provision of Public Open Space.

Compulsory acquisition

1. Clause 8.1 of DPS2 provides, relevantly:

   8.1ADDITIONAL POWERS OF THE SCHEME

   8.1.1The [City] in implementing [DPS2] has, in addition to all other powers vested in it, the following powers:

   …

   (b)The [City] may acquire any land or buildings within Scheme Area pursuant to the provisions of [DPS2] or the [PD Act].  The [City] may deal with or dispose of any land which it has acquired pursuant to the provisions of [DPS2] or the [PD Act] in accordance with the law and for such purpose may make such agreements with other owners as it considers fit.

   8.1.2The procedure for carrying out any compulsory acquisition under [DPS2] shall be the procedure in the Land Administration Act 1997 subject to the modification referred to in Section 13 of the [TPD Act 1928].

2. Clause 10.14 of DPS2 is headed 'Acquisition of Land for Cell Works, Payment, Valuation and Compulsory Acquisition' and includes the following:

   10.14.1Without limiting the generality of Clause 8.1 if an owner fails or refuses to transfer any part of the land of the owner which is required as part of the Cell Works following the giving of any notice by the [City] requiring such land, the [City] may forthwith or after giving such formal notices as to the [City] shall seem appropriate in the circumstances, compulsorily acquire the relevant portion of that owner's land within the Cell.

   10.14.2Where land has been compulsorily acquired and a lawful claim for compensation has been served on the [City], the [City] may claim compensation for betterment under section 11(2) of the [TPD Act 1928] and the value attributed to the betterment of the land the subject of the claim shall be set off against any compensation otherwise payable to the claimant under the Land Administration Act 1997 or any re‑enactment of its provisions related to compulsory acquisition and compensation.

1. Section 13 of the TPD Act 1928 (referred to in cl 8.1.2 of DPS2) provided:

   13.Power to acquire land

   (1)The responsible authority may, for the purpose of a town planning scheme, in the name and on behalf of such authority -

   (a)purchase any land comprised in such scheme from any person who may be willing to sell the same; or

   (b)with the consent of the Governor, take compulsorily, under and subject to Part 9 of the Land Administration Act 1997, (but subject to subsection (2)), any land comprised in such scheme, and whether situate within or without the boundaries of the district of such responsible authority.

   (2)When any land is taken compulsorily under the powers conferred by this section the provisions of

   (a)sections 170 to 175 inclusive; and

   (b)section 184,

   of the Land Administration Act 1997, shall not apply to or in respect of the land or the taking or in any manner whatsoever, and that Act shall be read and construed as if the provisions were deleted.

Compensation

1. The reference to compensation in cl 9.8.3(e) appears to be a reference to the provisions of cl 8.5 of DPS2.  Neither party, however, referred to cl 8.5 or suggested that it was relevant to the present dispute.  Clause 8.5 provides:

   8.5COMPENSATION

   8.5.1A claim for compensation for injurious affection can be made pursuant to Section 11 of the [TPD] Act [1928] when the Scheme:

   (a)permits development on land for no purpose other than a public purpose;

   (b)prohibits wholly or partially the continuance of any non‑conforming use according to the terms of the [TPD] Act [1928].

   8.5.2The time limit for the making of claims for compensation for injurious affection pursuant to Section 11(1) of the [TPD] Act [1928] resultant from the making of, or the making of an amendment to, the Scheme, is six (6) months from the date of publication of the Scheme or Scheme Amendment in the Government Gazette.

   8.5.3In addition to the compensation provisions of the [TPD] Act [1928] and sub‑clause 8.5.1 of this Scheme, where, in respect of any application for planning approval to commence or carry out development on land reserved under this Scheme, the Council, or any appellate body thereafter, refuses or grants approval subject to conditions such that the effect of the decision is to permit the land to be used or developed for no purpose other than a public purpose, the owner of the land may claim compensation from the Council for injurious affection.

   8.5.4The time limit for the making of claims for compensation pursuant to subclause 8.5.3 is not later than 6 months after the date of the decision of the Council or appellate body.

Disposition

The appellants' land and Urban Development

1. Pursuant to DPS2, the appellants' land is zoned 'Urban Development'. 

2. Clause 1.6 of DPS2 includes the following:

   The aims and objectives of the Scheme are:

   …

Urban

Development

(l)       To enable the [City] to formulate arrangements for the sharing of costs on an equitable basis amongst landowners for the provision of infrastructure for urban, industrial and other development carried out in accordance with the Scheme.

(m)     To promote planning, management and strategic control of development in a rational and systematic manner, taking into account the aspirations of residents, environmental capacity, and the costs and benefits of development.

1. Urban Development is not included in the Zoning Table in Table 1 of DPS2.  The notes to the Zoning Table refer to cl 3.14 of DPS2 in relation to zoning for Urban Development.

2. Clause 3.14.1 provides, relevantly:

   3.14.1The purpose of the Urban Development Zone is to provide for the orderly planning and development of larger areas of land in an integrated manner within a regional context whilst returning flexibility to review planning with changing circumstances …

   3.14.2The objectives of the Urban Development Zone are to:

   (a)designate land for future urban development;

   (b)provide for the orderly planning of large areas of land for residential and associated purposes through a comprehensive structure planning process;

   (c)enable planning to be flexible and responsive to changing circumstances throughout the development stages of the area.

   3.14.3Subject to Clause 9.11, no subdivision … or other development should be commenced or carried out in an Urban Development Zone until an Agreed Structure Plan has been prepared and adopted … No subdivision … should be commenced or carried out and no other development shall be commenced or carried out otherwise than in conformity with an Agreed Structure Plan which is in existence at the time the application for approval … is received by the responsible authority.

   3.14.4The permissibility of uses in the Urban Development Zone subject to clause 9.8.2 and 9.8.3 shall be determined in accordance with the provisions of the relevant Agreed Structure Plan.  (emphasis added)

3. As clause 3.14.4 of DPS2 indicates, and cl 9.11.1 of DPS2 confirms (see [91] above), the permissibility of uses in the Urban Development Zone was intended to be determined by the relevant Agreed Structure Plan.  In this case, the relevant Agreed Structure Plan is ASP6, which came into operation on 24 June 2002.[91]

Reserves

[91] See [6] above.

1. DPS2 provides for two types of reserves:  'Metropolitan Region Scheme Reserves' and 'Local Reserves'.[92]  The term 'Local Reserve' is defined in sch 1 of DPS2 to mean 'land, other than a regional reserve, which is reserved for a specific purpose'.  The more generic term 'reserve' is defined to mean 'any land reserved for a public purpose'.

   [92] See DPS2 cl 2.1, cl 2.2.1, cl 2.3.1, cl 2.3.2.

2. A 'reserve' in this context may properly be understood to be a classification of land.

3. The reference to 'Local Authority Reservation' in cl 9.8.3(e) of DPS2 is not defined.  However, in the context of DPS2 read as a whole, it must be taken to be a reference to a 'Local Reserve', as opposed to a 'Metropolitan Region Scheme Reserve'.  Moreover, cl 9.8.3 involves a non‑exhaustive elaboration of cl 9.8.2.  Its provisions are expressed to be without limit to the generality of cl 9.8.2.  Accordingly, the reference in cl 9.8.3(e) (read with the chapeau) to 'under an Agreed Structure Plan where land is classified as a Local Authority Reservation' must be taken to mean where land is classified, in accordance with cl 9.8.2, as a Local Reserve (emphasis added).  This means that cl 9.8.2 is intended to operate so as to permit the classification of land under an Agreed Structure Plan by reference to Local Reserves, beyond those delineated on the Scheme Map.[93]

   [93] The Scheme Map is GB 249.

4. The reference to (in effect) Local Reserves in cl 9.8.3(e), and 'reserve' in cl 9.8.2, is wide enough to include the classification of land by reference to a reserve for Public Open Space.

The Agreed Structure Plan

Overview

1. ASP6 deals with the East Wanneroo Cell 4.  ASP6 commences with a 'Record of Amendments made to [ASP6]'.  The amendments are numbered and include, for example, deleting or reconfiguring Public Open Space,[94] rezoning land,[95] and recoding the R Codes for certain land.[96]

   [94] Nos 1, 5.

   [95] For example, nos 4, 16, 22.

   [96] For example, nos 3, 6 - 8, 10, 11, 13, 15, 17, 20, 23, 24 - 25, 27, 29 ‑ 30, 31, 33 - 34.

2. The next section is headed 'Statutory planning section'.  The first page of this section provides:

   PART 1

   STATUTORY PLANNING SECTION

   As provided for under the relevant 'Structure Plan' provisions of the Scheme, this part of the Structure Plan has the same force and effect as if it was a provision, standard or requirement of the Scheme.

   Subject Area

   The Structure Plan area includes approximately 104 private landholdings comprising 394 hectares.

   1.ZONES

   Plan 1: 'The Zoning Map'.

   2.LOCAL STRUCTURE PLAN

   Plan 2: The 'Local Structure Plan'.

   3.RETAIL FLOOR SPACE (NLA)

3. There is then a schedule, Schedule 1, setting out a 'Retail Floorspace Provision' in relation to specified areas of land.[97] 

   [97] The provisions relating to Retail Floorspace operate in the context of provisions for maximum retail net lettable area (NLA) in cl 3.7 and cl 3.13 of DPS2 in relation to the Commercial Zone and the Centre Zone respectively.  See cl 3.7.3, cl 3.13.5 and sch 3 of DPS2.

4. What follows thereafter are headed 'Provisions'.  The details are set out later, but at this point it is convenient to note that the 'Provisions' deal with:

   1.Residential Precinct (cl 4.1);

   2.Commercial Zone (cl 4.2);

   3.Centre Zone (cl 4.3);

   4.Special Residential Precinct (cl 4.4);

   5.Special Zones - Additional Uses (cl 4.5) and a related schedule (schedule 2);

   6.Environment Provisions (cl 5);

   7.Infrastructure Contributions (a second numbered cl 5); and

   8.Public Open Space (cl 6) and a related schedule (schedule 3).

5. The provisions of ASP6 are to be understood in a context that:

   1.The Commercial Zone and the Centre Zone are zones under cl 3.1.1 of DPS2.  Clause 3.7.4 of DPS2 provides that, with respect to the Commercial Zone, the floorspace figures in sch 3 of DPS2 shall be adhered to 'except where a provision to the contrary is made in an Agreed Structure Plan'.  There is a similar provision in relation to the Centre Zone in cl 3.13.6 of DPS2.

   2.Also in relation to the Centre Zone, cl 3.13.4 of DPS2 provides that (subject to cl 9.8.2 and cl 9.8.3) the permissibility of uses in that zone 'shall be determined in accordance with the … Agreed Structure Plan'.  

   3.Clause 3.1.1 of DPS2 also provides for a 'Special Residential Zone'.  Clause 3.19.3 of DPS2 provides, amongst other things, that a Development Guide Plan or an Agreed Structure Plan 'shall be a prerequisite to the creation of a Special Residential Zone'.

   4.Part 10 of DPS2 deals with, amongst other things, the Cell Works to be undertaken in East Wanneroo, including the acquisition of approximately 10% of the area of (relevantly for present purposes) Urban Cell 4 for Public Open Space.[98]

The Zoning Map

[98] See [92] above.

1. Clause 1 of ASP6 refers to the Zoning Map. 

2. The Zoning Map, which is attached to ASP6, depicts Cell 4 as comprising (1) Neighbourhood Community Centre; (2) a (small) Commercial Zone; (3) a (small) Special Residential Zone; (4) a (small) Special Use Zone; and (5) overwhelmingly, a 'Residential Precinct'.  The appellants' land is shown as within the Residential Precinct.

The Local Structure Plan

1. Clause 2 of ASP6 refers to the 'Local Structure Plan'.

2. The 'Local Structure Plan', which is attached to ASP6, shows, amongst other things (consistently with DPS2 sch 7, pt A, par (f)), (1) the 'distribution'[99] of Public Open Space in Cell 4; (2) 'School'; and (3) 'Neighbourhood Community Centre'.

Residential Precinct

[99] See ASP6 cl 6 referred to in [122] below.

1. Clause 4.1 of ASP6 deals with the 'Residential Precinct'.  It provides, in effect, that in the Residential Precinct:

   1.The permitted uses are to be in accordance with the Residential Zone specified in DPS2.

   2.Rural development involving high capital investment, offensive trades, mushroom farms and/or development of a long‑term nature will generally be discouraged.

   3.Other rural uses may be considered.

   4.Unless otherwise identified on the attached 'Local Structure Plan', the residential density to apply to this precinct is R20.

2. Clause 4.1 also provides that its objectives are to promote residential development whilst allowing for rural uses and development if considered that such uses will not compromise the intention to develop the precinct for residential purposes in the medium and long term.

3. Clause 4.1 further provides, in effect, that in assessing a rural use application in the Residential Precinct, consideration will be given to: 

   (a)referring the applicant to areas which are set aside for General Rural under DPS 2;

   (b)imposing a time limit on the period for which the approved development may be carried out, and the preparation and execution of a legal agreement between the landowner and the City in that regard;

   (c)refusing the application if it is considered likely to prejudice the future planned use of the land;

   (d)the proximity of urban development;

   (e)the ability of the land to be used for residential purposes in the immediate future in light of servicing and other constraints; and

   (f)other appropriate factors.

Commercial and Centre Zones

1. Clause 4.2 and cl 4.3 of ASP6 deal with the Commercial Zone and the Centre Zone respectively. 

Special Residential District

1. Clause 4.4 of ASP6 deals with the Special Residential Precinct, and provides that the permissibility of land uses and general provisions 'for this zone' are the same as those which apply under the provisions for the Residential Zone under the Scheme, except where indicated to the contrary by certain criteria (which are then set out).

Special Zone - Additional Uses

1. Clause 4.5 of ASP6 provides that, notwithstanding anything contained in the Zoning Table in DPS2, the land specified in sch 2 of cl 4.5, being a specified property in Shiraz Boulevard, Pearsall, may only be used for the specific uses that are listed, in addition to any uses permissible in the zone in which the land is situated.  The listed use is 'Service Station', 'Convenience Store' and 'Car Wash'.

Infrastructure Contributions

1. By the second of two clauses numbered cl 5, ASP6 also makes provision for infrastructure contributions.[100]  It provides that the contributions to be made by an owner for the implementation of the Cell Works shall be determined in accordance with DPS2.  It provides that the 'current rate of contribution for Cell 4 and the associated breakdown of costs are as per the following Schedule 2'.  The reference to 'the following Schedule 2' appears to be an error.  Presumably, it is intended to refer to 'the following Schedule 3'.

Public Open Space

[100] The first of two clauses described as cl 5 of ASP6 relates to 'Environmental Provisions'.

1. As noted earlier, cl 6 of ASP6 provides:

   6.PUBLIC OPEN SPACE (POS) PROVISION

   The following Schedule 3 details the Public Open Space (POS) which is to be provided by landholders for each lot within Cell 4.  The POS allocation reflects the distribution of POS on the Agreed Local Structure Plan for Cell 4.  (emphasis added)

2. The reference to 'Agreed Local Structure Plan' must be a reference to the 'Local Structure Plan' attached to ASP6 and referred to in cl 2 of ASP6.

3. Schedule 3 of ASP6 provides for a 'Total POS Provision' of 36.2756 hectares, and includes, relevantly:

   SCHEDULE 3  PUBLIC OPEN SPACE (POS) PROVISION:  CELL 4

Public Open Space (hectares)	Lot No	Area (ha)
4I	Pt Lot 1 Wanneroo Road [the appellants' land] ... Pt Lot 8 Wanneroo Road [the first appellant's land]	0.3189 0.8077

The proper construction and application of cl 9.8 of DPS2

1. In our view:

   1.ASP6 is an Agreed Structure Plan within the meaning of cl 9.8.2 of DPS2.

   2.The words 'imposes a classification on the land included in it' in cl 9.8.2 mean, in effect, 'classifies land included in the Agreed Structure Plan'.

   3.The words 'by reference to' in cl 9.8.2 bear their ordinary meaning.[101]  In other words, cl 9.8.2 contemplates the classification of land in the Agreed Structure Plan by reference to reserves, zones or Residential Density Codes.

   [101] DPS2 cl 1.9.3.

   4.The word 'reserves', in cl 9.8.2 of DPS2, includes Local Reserves, and that term includes a reserve for Public Open Space.

   5.The Local Structure Plan of ASP6 shows the 'distribution' of Public Open Space in the area of land comprising Cell 4.  The ordinary meaning of 'distribution' includes 'arrangement; classification'.[102]  In our view, cl 2 of ASP6 and the Local Structure Plan classified land (including the appellants' land) by reference to a Local Reserve, being Public Open Space.  In this regard, we do not accept the City's submissions that ASP6 merely involves an 'allocation', leaving cl 9.8.2 and cl 9.8.3 of DPS2 with 'no work to do'.

   [102] Macquarie Dictionary (6th ed revised, 2013).

   6.It follows that, in our view, ASP6 'imposes a classification' on the appellants' land 'by reference to' (relevantly) a 'reserve', being a Local Reserve, within the meaning of the chapeau of cl 9.8.2 and cl 9.8.3(e) of ASP6.  Accordingly:

   (a)the provisions in ASP6 classifying the land (in effect) as a Local Reserve apply to the land as if they were incorporated into DPS2 and are binding and enforceable in the same way,[103] subject to the observation referred to in point 7 below;

   (b)the development control procedures apply as if the land was correspondingly reserved under DPS2;[104]

   (c)the rights, provisions and procedures, and the obligations of the City regarding compensation, apply as if the land was correspondingly reserved under DPS2;[105] and

   (d)the provisions in DPS2 (including cl 2.3.1) which provide that Local Reserves are delineated on the Scheme Map apply with necessary changes.[106]

   7.The effect of cl 9.8.2 and cl 9.8.3 is that the land is classified as if it was correspondingly reserved under DPS2.  Further, the effect of cl 9.8.2 and cl 9.8.3 is that the provisions of ASP6 apply to the land as if those provisions were incorporated in DPS2.  Whether or not cl 9.8.2 and cl 9.8.3 operate in this regard as 'deeming provisions',[107] they undoubtedly invite attention to the purpose for which that particular statutory language is used.[108]  Section 5 of the Interpretation Act 1984 (WA) provides, relevantly, that in every written law 'amend' means 'replace, substitute, in whole or in part, add to or vary'.  By s 9 of the Interpretation Act, where a word is defined in a written law, other parts of speech and grammatical forms of that word have corresponding meanings. It cannot be inferred that the language of 'as if' in cl 9.8.2 and cl 9.8.3 is designed to bring about an 'amendment' to DPS2 within the meaning of s 173(1) or the chapeau to s 174(1) of the PD Act. There can be no 'amendment' to DPS2 within s 173(1) or s 174(1), save in accordance with s 75 of the PD Act. Clause 9.8.2 effectively recognises this insofar as it distinguishes between reserves, zones and Residential Density Codes applying to control the use of land in an Agreed Structure Plan 'as if [they] were incorporated into' DPS2, and 'an amendment to' DPS2.

   8.The evident purpose of incorporating the provisions of an Agreed Structure Plan into DPS2 in accordance with cl 9.8.2 and cl 9.8.3 is to provide a 'policy framework'[109] for all future development of the land zoned in the Urban Development Zone until DPS2 itself is amended. 

   9.The classification of the appellants' land as a reserve by ASP6 does not directly have the force of law, because the land is not directly reserved by DPS2, or by an amendment to DPS2.  However, the requirement that the land be treated as if it were reserved under DPS2, does have the force of law.[110] 

   10.As the land is to be treated as if it were a Local Reserve for the purposes of the provisions of DPS2, those provisions in DPS2 dealing with applications for planning approval in respect of land reserved for Public Open Space are applicable. 

   [103] DPS2 cl 9.8.2(a), cl 9.8.3(f).

   [104] DPS2 cl 9.8.3(c).

   [105] DPS2 cl 9.8.3(e).

   [106] DPS2 cl 9.8.2(b).

   [107] As to 'deeming provisions' generally, see Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, 2014) [4.45] - [4.46].

   [108] Cf Martinez v Minister for Immigration and Citizenship [2009] FCA 528; (2009) 177 FCR 337 [29].

   [109] See the definition of 'structure plan' in DPS2 sch 1.

   [110] See PD Act s 68, s 87(4).

2. In that regard, when considering an application for planning approval for land within a Local Reserve:

   1.the City 'shall have due regard to the ultimate purpose intended for the Local Reserve', as well as the relevant matters set out in cl 6.8 of ASP6;[111]

   2.provisions in DPS2, insofar as they are not inconsistent with cl 2.3.4, shall apply to the City's exercise of discretion;[112]

   3.the City shall treat the application as though it involved a 'D' use;[113] and

   4.in exercising its discretion as to approval with respect to a 'D' use, the City 'shall have regard to the provisions of Clause 6.8'.[114]

   [111] DPS2 cl 2.3.4.1.

   [112] DPS2 cl 2.3.4.2.

   [113] DPS2 cl 2.3.4.3.

   [114] DPS2 cl 6.6.2.

1. The provisions of cl 6.8 of DPS2 include, amongst other things, the requirements of orderly and proper planning (cl 6.8(b)), the provisions of the Agreed Structure Plan (cl 6.8(f)), and any other consideration the City considers relevant (cl 6.8(aa)).  The provisions of ASP6 include the provisions of cl 4.1 referred to in [115] ‑ [117] above, which permit uses in accordance with the uses in the Residential Zone in DPS2, and allow for the potential for rural uses. 

2. Whilst, accordingly, DPS2, through its incorporation of cl 4.1 of ASP6, provides for other possible uses of the land classified as Public Open Space subject to the City's approval, the potential for alternative uses of the land always remains subject to the mandatory relevant consideration that the land has been classified as a reserve for Public Open Space.  The potential for other uses, subject to the City's approval, does not negate, or reverse, the classification of the land as a reserve for Public Open Space.  Also, reservation is to be determined objectively, and not by reference to whether the City may subjectively harbour an intention that the land may not be needed for acquisition in due course.

Observations on the City's submissions

1. As to the City's submissions referred to in [55] above:

   1.Points 1 - 4, in our view, have no merit.

   2.To the extent indicated in [125] - [128] above, we would not accept points 5, 9 and 10.

   3.As to point 6, we accept that the decision in Carson on the New South Wales statutory instrument in that case, provides no real assistance in the disposition of this appeal.

   4.As to point 7, even if the appellants' reference to State Planning Policy is a new point, it is irrelevant to the proper disposition of this appeal.

   5.Point 8 does not seem to us to have any real bearing on the disposition of the appeal.

   6.Point 11 is accepted, but it does not materially assist the City for the reasons given earlier.

   7.As to points 12 and 13, it is accepted that ASP6 may be changed, under DPS2, by the City subject to the approval of the WAPC.  However, absent an amendment, its provisions will apply 'until it is replaced by an amendment to the Scheme imposing such classifications'.[115]

   8.As to point 14, this concerns the question examined in [142] below.

   9.As to point 15, it is accepted that all owners of land in Cell 4 must contribute to the cost of the provision of Public Open Space.  More importantly, for present purposes however, is that the distribution of Public Open Space in ASP6 affects the appellants' land.

Observations on s 174 of the PD Act

[115] DPS2 cl 9.8.2.

1. Each of s 174(1)(a) and s 174(1)(b) of the PD Act is evidently intended to have its own sphere of operation, although the two may overlap, as discussed below.

2. Section 174(1)(a) deals with a situation where land is 'reserved' for a public purpose. It appears to proceed on the assumption, consistently with the history of reservation outlined in Mount Lawley,[116] that land which is to be acquired for a public purpose, even if not immediately required for that purpose, should be 'reserved' for that purpose.  Although reservation was initially conceived in circumstances where all forms of development were prohibited,[117] the effect of reservation must, ultimately, depend upon a proper construction of the scheme as a whole. 

   [116] See [58] above.

   [117] See Mount Lawley at [243] at [58] above.

3. Reservation of land for a public purpose would not of itself preclude other uses in the interim, pending acquisition, if the scheme permits other uses.  But even if the scheme provides for approval to be given to other uses of the land in the interim, the prospect of obtaining approval for alternative uses would, at least generally speaking, and in practical terms, be overshadowed by regard to the ultimate purpose for which the land is reserved.

4. Where the land is reserved, coupled with an express provision that there is to be no other use of the land, (1) s 174(1)(a) would apply because of the reservation, and (2) s 174(1)(b) would prima facie apply because the scheme would also then permit 'development on that land for no purpose other than a public purpose'. The same result would follow where the land is reserved for a public purpose, without express provision for alternative use, and the court concluded that, on a proper construction of the instrument as a whole, the scheme 'permits development … for no purpose other than for a public purpose'.

5. At least ordinarily, however, s 174(1)(b) is evidently intended to operate where there is no 'reservation' as such. Amongst other things, it means that the obligation to pay compensation for injurious affection cannot be avoided by simply not reserving the land for a public purpose in the first place, but, instead, providing in the scheme for no development other than for a public purpose.

6. At least ordinarily, a provision such as s 174 should be construed with all the generality that its words permit.[118]

The application of s 174 in this case

[118] Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 78 ALJR 1022 [31]; cf Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; (2017) 259 CLR 106 [44] ‑ [55] (Kiefel & Bell JJ) and [67] (Gageler & Nettle JJ).

1. It is convenient to address s 174(1)(b) and s 174(1)(c) first.

2. In relation to s 174(1)(b), this is not a case where it could be said that, properly construed as a whole, DPS2 (with its incorporation of cl 4.1 of ASP6 providing for residential and, in some cases, rural, uses) 'permits development on [the appellants'] land for no purpose other than a public purpose'. The appellants' second contention should be rejected.

3. Also, in our view, s 174(1)(c)(ii) has no application. That is because cl 7.2.1 of DPS2 is not, in terms or substance, a prohibition.[119]  We would respectfully agree with and adopt the observations of Anderson J (Ipp & Owen JJ agreeing) in Wines referred to in [84] above.  The appellants' third contention should be rejected.

   [119] See [83] above.

4. As to the appellants' first contention, it follows from our discussion in [125] - [128] above that, in our view, ASP6 imposes a classification on land by reference to a reserve, being Public Open Space, within the meaning of cl 9.8.2 and cl 9.8.3 of DPS2. The land in that sense, at least, may be said to have been injuriously affected by ASP6. The question remains, however, whether the land is injuriously affected for the purposes of s 174(1)(a) of the PD Act. This requires a consideration of whether the land is 'injuriously affected by reason of the making or amendment of a planning scheme'[120] in that the land 'is reserved … under the planning scheme for a public purpose'.[121] At the outset, we accept that Public Open Space is a 'public purpose' within the meaning of s 174(1)(a) of the PD Act.

   [120] See the chapeau to PD Act s 174(1)(a); also PD Act s 173(1).

   [121] PD Act s 174(1)(a).

5. The classification effected by ASP6 could not be said to be made under DPS2 when it was first gazetted or, indeed, at any time prior to the adoption of ASP6.  The appellants contend, in effect, that DPS2 effectively operates to incorporate within DPS2 itself the provisions of ASP6, and that the provisions of ASP6 thereby effectively operate as an amendment to DPS2. [122]

   [122] See appeal ts 92 - 93.

6. For the reasons given earlier,[123] ASP6 did not, in our view, create an 'amendment' to DPS2 within the meaning of s 173(1) and the chapeau to s 174(1) of the PD Act.

   [123] See [125.7] above.

7. The critical, and remaining, question in the appeal is whether, even absent an 'amendment' to DPS2, the appellants' land was nevertheless, within s 174(1)(a) of the PD Act, injuriously affected 'by reason of the making … of [DPS2]' in that the land '[was] reserved … under [DPS2] for a public purpose'.

8. Obviously, the text of s 174(1)(a) must be construed as a whole and having regard to pt 11 div 2 of the PD Act as a whole and the relevant statutory purpose or object. In this broader context, the effect of s 173 and s 177 of the PD Act is that compensation is payable only to the owner of the land at the date of reservation of the land under the planning scheme.[124]

   [124] Southregal [31], [36], [39], [45], [52] ‑ [53] (Kiefel & Bell JJ); [76], [79], [81], [85], [86], [88], [90] ‑ [91] (Gageler & Nettle JJ).

9. The expression 'by reason of', within s 174(1)(a), connotes the existence of a causal relationship between the injurious affection, on the one hand, and the making of the planning scheme, on the other. The words 'by reason of' in that context are synonymous with 'because or in consequence of'.

10. Section 5 of the Interpretation Act provides, relevantly, that in every written law 'under', in relation to a written law or a provision of a written law, includes 'by', 'in accordance with', 'pursuant to' and 'by virtue of'. The PD Act does not contain an express provision to the effect that the word 'under' in s 174(1)(a) is to bear a meaning different from the meaning ascribed by s 5 of the Interpretation Act.  Also, nothing in the intent and object of the PD Act or in its subject or context is inconsistent with the application of the meaning ascribed by s 5 of the Interpretation Act to the word 'under'.  See s 3(1) of the Interpretation Act.

11. The word 'under', within s 174(1)(a), connotes that the land was reserved by, in accordance with, pursuant to or by virtue of the planning scheme.

12. In our view, s 74(1)(a) does not provide, in effect, that land will only be injuriously affected by the making of a planning scheme if the injurious affection occurs immediately upon the making of the scheme. Nor, in our view, does s 174(1)(a) provide, in effect, that land will only be injuriously affected by the reservation of the land under a planning scheme if the land is reserved by the text or other provisions of the scheme immediately upon the making of the scheme. We acknowledge that there are some references in the judgment of Gageler and Nettle JJ in Southregal to the right of compensation inuring in favour of the owner of the land at the time of the making of the relevant town planning scheme.[125]  But, as we would understand it, their Honours were not, by those references, seeking to draw a distinction between, on the one hand, the time of the making of the scheme and, on the other, the time that the land is first reserved 'under a planning scheme'.[126]  The question presently under consideration was not a question which arose for determination in Southregal.

    [125] See Southregal [73(1)], [82], [83], [91].

    [126] See, in this regard, the other references to the judgment of Gageler and Nettle JJ, footnoted at [143] above.

13. In our opinion, s 174(1)(a), properly construed, extends to and the requirements of the provision will be satisfied where:

    1.the land is injuriously affected because or in consequence of the making of a planning scheme; and

    2.the land is reserved, at any time, in accordance with or pursuant to the scheme for a public purpose.

14. Accordingly, in the present case, the requirements of s 174(1)(a) will be satisfied if the appellants' land was injuriously affected because or in consequence of the making of DPS2 in that the land was reserved in accordance with or pursuant to DPS2 for a public purpose.

15. In our opinion, the appellants' land was injuriously affected because or in consequence of the making of DPS2 and the land was reserved in accordance with or pursuant to DPS2 for a public purpose in that, as we have explained in [125] ‑ [128] above:

    1.the appellants' land was classified as a reserve by ASP6;

    2.the provisions of ASP6 were incorporated into DPS2;

    3.the requirement in cl 9.8.2 and cl 9.8.3(e) of DPS2 that the appellants' land be treated as if it were reserved under DPS2 had the force of law; and

    4.the reservation of the appellants' land for Public Open Space was a reservation for a public purpose.

16. The fact that DPS2, through its incorporation of cl 4.1 of ASP6, provides for other possible uses of the land classified as Public Open Space subject to the City's approval, may affect the amount of compensation payable for injurious affection, but does not have the effect that the requirements of s 174(1)(a) have not been satisfied in relation to the appellants' land.

17. The ground of appeal has been made out in that the appellants' land was injuriously affected by reason of the making of DPS2 in that the land was reserved under DPS2 for a public purpose, within s 174(1)(a) of the PD Act.

Conclusion

1. We would allow the appeal.  Counsel should be heard concerning the precise form of the orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CL
ASSOCIATE TO THE HONOURABLE JUSTICE MURPHY

12 OCTOBER 2018