Scutti v City of Wanneroo - [2017] WASC 70

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

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

CORAM: LE MIERE J

HEARD: 17 JANUARY 2017

DELIVERED : 21 MARCH 2017

FILE NO/S: GDA 14 of 2016

BETWEEN: CARMELLA SCUTTI
First Appellant
ANTONIO GIUSEPPE SCUTTI
Second Appellant
PAOLA SCUTTI
Third Appellant
GIUSEPPE ALESSANDRO SCUTTI
Fourth Appellant
AND
CITY OF WANNEROO
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MS L EDDY (MEMBER)
Citation  :CITY OF WANNEROO and SCUTTI [2016] WASAT 102
File No  :DR 470 of 2015

Catchwords:

Town planning - Appeal from determination of State Administrative Tribunal - Determination of whether land injuriously affected - Whether Tribunal made errors of law - Turns on own facts

Legislation:

Environmental Planning and Assessment Act 1979 (NSW), s 27(1)
Liquor Act 1982 (NSW), s 99(3)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 2 cl 27(1) sch 2 pt 4
Planning and Development Act 2005 (WA), s 173, s 174(1), s 176(1), pt 11 div 2
State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Mr P G McGowan & Ms L E Rowley
Second Appellant          :     Mr P G McGowan & Ms L E Rowley
Third Appellant             :     Mr P G McGowan & Ms L E Rowley
Fourth Appellant            :     Mr P G McGowan & Ms L E 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

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Carson v Department of Environment & Planning (1985) 3 NSWLR 99
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
Maritime Services Board (NSW) v Liquor Administration Board (1990) 21 NSWLR 180
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Van der Meyden v Melbourne and Metropolitan Board of Works [1980] VR 255
LE MIERE J:

Summary

The appellants are owners, as tenants in common, of Lot 1, Wanneroo Road, Pearsall. The first appellant is also the owner of Lot 8, Wanneroo Road, Pearsall. Under the City of Wanneroo District Planning Scheme No 2 (DPS2) both of those lots are zoned 'urban development'. In 2002 Agreed Local Structure Plan East Wanneroo Cell 4 (Hocking and Pearsall): Structure Plan No 6 (ASP6), which encompassed an area including the appellants' lots, was adopted by the Western Australian Planning Commission (Commission). In ASP6 substantial parts of the appellants' land are identified as within an area of public open space.
Following adoption of ASP6, the first appellant applied for development approval to construct a rural shed on her lot (the shed application). The application was refused for three reasons, one of which is that approval of the proposed shed will prejudice the future planned use of the site, being for public open space, contrary to cl 4.1(c) of ASP6. Subsequently, the appellants together applied for development approval to construct grouped housing on their combined land (the residential application). The application was refused for three reasons, one of which is that the proposal is inconsistent with and contrary to cl 6 and sch 3 of ASP6 as the ability for the provision of public open space would be compromised.
The appellants lodged a claim with the respondent, the City of Wanneroo, for compensation for the injurious affection of their land that they alleged was caused by the adoption of ASP6. The City disputed that the appellants' land had been injuriously affected. The City applied to the State Administrative Tribunal under s 176(1) of the Planning and Development Act 2005 (WA) (the Planning Act) for determination of the question whether the land is injuriously affected.
The Tribunal found that the provisions of a local structure plan, together with the cl 9.8.2 and cl 9.8.3 of DPS2, were capable of injuriously affecting the appellants' land within the meaning of s 174(1)(a) of the Planning Act but the Tribunal determined that the appellants' land was not injuriously affected by the making or amendment of DPS2 by the adoption of ASP6.
The appellants now appeal from the decision of the Tribunal. For the reasons that follow there will be leave to appeal but the appeal should be dismissed.

The statutory framework

Structure plans are provided for by sch 2 pt 4 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the Regulations). Clause 14 of sch 2 provides that a structure plan is a plan for the coordination of future subdivision and zoning of an area of land. A local government that prepares a structure plan must advertise the proposed structure plan and seek comments from relevant public authorities: cl 18. After considering submissions received the local government may modify the proposed scheme: cl 19. The local government prepares a report on the proposed structure plan and provides it to the Commission: cl 20. The Commission may approve the structure plan or require modifications or refuse the structure plan: cl 22. Clause 27(1) provides that a decision‑maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.
Part 11 div 2 of the Planning Act makes provision for compensation where land is injuriously affected by a planning scheme. Under s 173 of the Planning Act any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of injurious affection from the responsible authority. Section 174(1) provides that 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; or
(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.
The City sought a determination from the Tribunal that none of the circumstances specified in (a) to (c) applied. The appellants argued that each of those circumstances applied in the alternative.

The planning scheme and structure plan

DPS2 pt 2 deals with reserves. Clause 2.1 provides that certain lands within the Scheme Area are shown on the Scheme Map and classified into either Metropolitan Region Scheme Reserves or Local Reserves. Clause 2.3 deals with local reserves. Clause 2.3.1 says that Local Reserves are delineated and depicted on the Scheme Map. Clause 2.3.2 provides that 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. Clause 2.3.4 makes provision for applications for planning approval on a Local Reserve.
DPS2 pt 3 provides for zones which include Residential, Urban Development and General Rural. The zones are delineated and depicted on the Scheme Map and Structure Plan Maps. Clause 3.2 contains provisions relating to the Zoning Table which forms part of the scheme. Part 3 sets out the uses which are permitted within each zone. Part 7 makes provision for non‑conforming uses.
Part 9 provides for the preparation of a structure plan. Clause 9.8.2 provides that where 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 the 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.
Clause 9.8.3(e) provides that where land is classified as a Local Authority Reservation under the Agreed Structure Plan, 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.
Part 10 makes provision for local structure plans in East Wanneroo. Clause 10.1 says that Council has prepared Local Structure Plans for Cells 1‑9 in East Wanneroo in accordance with the provisions of pt 9 of the Scheme for the purpose of facilitating subdivision and development of the land comprised in such Cells. Clause 10.5 provides for the calculation of public open space contributions. Clause 10.5.1(a) provides that all owners of land in cells 1 to 6 are required to contribute towards the provision of 10% of the Area of a Cell for public open space the cost of which shall form part of the Cell Costs.
Schedule 7 provides for matters to be included in a structure plan. The schedule provides that a structure plan shall include any of the specified matters that Council consider appropriate in relation to the nature of the structure plan including 'proposed major land uses in particular residential areas, public open space (including description & concepts), school sites, community purpose sites, mixed use, business, industrial and commercial uses'. Clause 9.9 provides that where land is subject to any obligation or liability under an Agreed Structure Plan, the land shall not be subdivided or in any other way developed unless arrangements satisfactory to the Council have first been made for the discharge of that obligation or liability.
ASP6 consists of text, a plan showing the zoning of each lot (zoning plan) and a plan identifying lots as neighbourhood community centre, public open space, school, CAPS, special use zone, residential densities other than R20, special residential and sump (structure plan). The zoning plan identifies the appellant's land to be in the Residential Precinct. The structure plan identifies the appellant's land as Public Open Space.
Under DPS2 the appellant's land is within the Urban Development Zone. The Zone Table does not specify the permitted uses within the Urban Development Zone. The permissibility of uses in the Urban Development Zone is specified in cl 3.14.4. That clause provides that the permissibility of uses in the Urban Development Zone, subject to subclauses 9.8.2 and 9.8.3, shall be determined in accordance with the provisions of the relevant Agreed Structure Plan. The zoning plan of ASP6 shows the appellant's land to be in the Residential Precinct. Clause 4.1 of the text of ASP6 provides that the permissibility of uses in the Residential Precinct is to be in accordance with the Residential Zone as specified under the scheme. The clause further provides that rural development involving high capital investment, offensive trades, mushroom farms and/or of a long‑term nature will generally be discouraged, that other rural uses may be considered and that unless otherwise identified on the structure plan the residential density to apply is R20.
Clause 6 of ASP6 provides that the attached sch 3 details the public open space which is to be provided by landholders for each lot within Cell 4 and that the public open space allocation reflects the distribution of public open space on the agreed local structure plan for Cell 4. Schedule 3 identifies the area of the appellant's land which is detailed as public open space.

Tribunal finds ASP6 capable of causing injurious affection

The Tribunal considered the provisions of DPS2 which were in effect as at the date of the refusal of development approval, and which gave effect to the structure plan, ASP6. The Tribunal held that those provisions were capable of resulting in the reservation of land if the structure plan or its mapping reserved the land:
… despite the fact that it cannot be said that ASP 6 is incorporated into the Scheme or that the adoption of ASP 6 was, or was equivalent to, an amendment to DPS 2, I am satisfied that it was, nonetheless, a circumstance that caused relevant provisions of DPS 2, that had been in existence since the making of that Scheme, to potentially have the effect of causing injurious affection to the land. When seeking to determine whether the land has been injuriously affected, it is the terms of cl 9.8.2 and cl 9.8.3 of the Scheme that are of primary consideration. It is these provisions that create a mechanism by which land may become reserved as if reserved under the Scheme, or by which development may be prohibited as if the prohibition was contained in the Scheme. Although the adoption of ASP 6 was the mechanism through which the land was identified as being allocated as 'Public Open Space' on the Structure Plan of ASP 6, it is only by application of the provisions of DPS 2 that this can potentially have the effect complained of by the respondents [31].
… the making of DPS 2, and, … the inclusion of cl 9.8.2 and cl 9.8.3 in the Scheme … may, if the Scheme together with the provisions of ASP6 have the effect of causing any of the outcomes specified in s 174 (1) of the [Planning] Act, have resulted in injurious affection of the land [32].
That finding of the Tribunal is not challenged. The question in this appeal is whether cl 9.8.2 and cl 9.8.3 of DPS2 together with the provisions of ASP6 has brought about any of the results in paragraphs of s 174(1)(a), (b) or (c).

Tribunal finds land not injuriously affected

The Tribunal observed that DPS2 uses the terms Local Reserves, Local Scheme Reserves and Local Authority Reservation but concluded that the terms are intended to be used interchangeably and have the same meaning [41]. The Tribunal found that that ASP6 does not describe or classify the land as a Local Reserve, a Local Authority Reserve or a Local Scheme Reserve nor does it identify the land as a reserve by use of one of the legends for that purpose in the Scheme maps and there is nothing on the Structure Plan of ASP6 or in the text of ASP6 that identifies that the land is classified as a reserve [42]. Rather, the land is identified in the Structure Plan of ASP6 as Public Open Space [42]. The Tribunal found that the term Public Open Space is intended to have a different meaning and effect to reservation under the Scheme [49]. The Tribunal found that in light of that, and the absence of any description of the land in the Structure Plan, Zoning Plan or text of ASP6 as being reserved, the land has not been reserved under DPS2 for a public purpose [50].
The Tribunal referred to the Structure Plan which identifies the land for 'Public Open Space' and the Zoning Plan which identifies the land as being within the 'Residential Precinct', within which the permissibility of uses is in accordance with the Residential zone as specified under DPS2. The Tribunal observed that there was not an express prohibition in ASP6 against non‑public‑purpose development on land designated 'Public Open Space' [57]. The Tribunal held that the effect of designation as 'Public Open Space' was to require 'due regard' to that designation [58]. That meant that non‑public‑purpose development was legally capable of being approved, and therefore it could not be said that the scheme prohibited development for no purpose other than a public purpose [60].
The Tribunal assumed that the effect of the relevant provisions of DPS2, upon adoption of ASP6, was to render the appellants existing lawful uses of the land non-conforming and therefore the land will be injuriously affected if the Scheme prohibits, wholly or partially, the continuance of the non-conforming use or the erection, etc, of any building in connection with the non‑conforming use [69]. The Tribunal then referred to cl 7.1 and cl7.2 of DPS2 and held that the identification of the land as Public Open Space on the Structure Plan or any of the text in ASP6 does not create any exception to the standard approach in relation to non-conforming uses provided by cl 7.1 and cl 7.2 of DPS2. The Tribunal therefore concluded that these provisions do not prohibit the continuation of a non-conforming use or the erection, alteration or extension of the land of any building in connection with, or in furtherance of, non‑conforming use [70].
The result was that the land was not injuriously affected, and no compensation rights accrued to the appellants.

This appeal

The appellants say that each of the Tribunal's findings is wrong. The appellants say that as a result of ASP6:
(a) the land is reserved for a public purpose;
(b)the scheme does not permit development on the land for any purpose other than a public purpose; and
(c)the scheme prohibits wholly or partially ‑
(i)the continuance of any non-conforming use of the land; and
(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 City.

Grounds of appeal

A party may appeal from a decision of the Tribunal only if the court gives leave to appeal: State Administrative Tribunal Act 2004 (WA) (SAT Act) s 105(1). The appeal can only be brought on a question of law: SAT Act s 105(2).
There are three grounds of appeal. Ground 1 is to the effect that the appellant's land is reserved for a public purpose. Ground 2 is to the effect that DPS2, as affected by ASP6, does not permit development on the appellant's land for any purpose other than a public purpose. Ground 3 is to the effect that DPS2, as affected by ASP6, prohibits wholly or partially the continuance of any non‑conforming use of the appellants' land and 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.
Each of the grounds of appeal is on a question of law. Each ground of appeal asserts an error of law in construing s 174(1) of the Planning Act, DPS2 and ASP6. In general, the proper construction of statutory provisions, including delegated legislation such as DPS2, or the question whether facts fully found fall within the provision of a statutory enactment properly construed are questions of law. Whether the effect of ASP6 and DPS2 is that the land falls within the provisions of s 174(1)(a), (b) or (c) respectively is each a question of law. Each of the appeal grounds is on a question of law.

Leave to appeal

Leave to appeal from a decision of the Tribunal will be granted if it is in the interests of justice that there be a grant of leave and there is no rigid or exhaustive guidelines governing the grant of leave: Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [27] (Martin CJ, Newnes & Murphy JJA agreed). There is a real and significant argument to be put on the questions of law identified by the appellants. There is sufficient doubt about the decision of the Tribunal to justify the grant of leave. To allow the error, supposing there be error, to go uncorrected would impose substantial injustice. There will be leave to appeal.

Ground 1

Ground 1 is that the Tribunal erred in law in determining that the appellants' land had not been reserved under DPS2 for a public purpose by:
(a)erroneously treating the ability to amend the structure plan as a relevant factor in deciding whether ASP6 had reserved the land for a public purpose;
(b)erroneously treating 'public open space' as having a meaning different from a reserve or a reservation.
This ground of appeal is not made out.
The appellants say that upon the proper construction of s 174(1)(a) of the Planning Act, DPS2 and ASP6, the appellants' land is reserved for a public purpose. The essence of their argument is as follows. Reserved means setting aside and a scheme reserves land for a public purpose if it sets aside the land for a public purpose. Use of land for public open space is a use for a public purpose. In determining whether land has been reserved, or set aside, for a public purpose what must be considered is the effect of the scheme provisions not the nomenclature that is used. The effect of ASP6 identifying the appellant's land as Public Open Space is that the land is reserved, or set aside, for that purpose which is a public purpose.
This ground of appeal involves considering the proper construction of s 174(1)(a) of the Planning Act and cl 9.8.2 and cl 9.8.3 of DPS2, which is a form of delegated legislation.
The High Court set out the proper approach to statutory construction in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (Alcan). In a passage which since has frequently been referred to with approval by members of the High Court, Hayne, Heydon, Crennan and Kiefel JJ said:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy [47].
Historically and currently statutory provisions have created a right to compensation for 'injurious affection' resulting from planning schemes which reserve land for a public purpose. An issue is whether the compensation provisions only operate when the plan in question actually makes use of the concept of 'reserve' or 'reservation'.
The appellants submit that 'reserved' means set apart and land is reserved for a public purpose if it is set aside for such a purpose irrespective of whether the word 'reserve' is used in the planning instrument which imposes the restrictions.
In Van der Meyden v Melbourne and Metropolitan Board of Works [1980] VR 255 Anderson J considered whether land in a Conservation Zone of a scheme was 'reserved … for a public purpose' under the compensation provisions of the Town and Country Planning Act 1961 (Vic). Anderson J took a formalistic approach to the question of whether the land was reserved for a public purpose. His Honour held that the language used in the legislation indicated that a specific reference to the land being reserved was required in the plan (262).
The Court of Appeal of New South Wales took a different approach in Carson v Department of Environment & Planning (1985) 3 NSWLR 99. Section 27(1) of the Environmental Planning and Assessment Act 1979 (NSW) provided that '[w]here an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26(c) …'. Samuels JA said at 104:
In my opinion, the proper meaning of the word 'reserve' in s 27(1) is the third offered in the Oxford English Dictionary, that is, 'to set apart'. In other words, s 27(1) is speaking of land which is set apart for exclusive or sole use for a particular purpose, that is to say, land which, by a relevant planning instrument, has been imprinted with a particular purpose and, more than that, the purpose must be an exclusive one, allowing of no other.
Mahoney JA at page 109 rejected the argument accepted by Anderson J that zonings would be distinguished on a purely formal basis from reservations and held that a zoning could in particular circumstances constitute a reservation for public purposes.
The different approaches of Anderson J and the Court of Appeal of New South Wales illustrates that the task of statutory construction requires the court to have regard to the relevant text and its context. The issue in this case is not whether land identified in a plan as public open space is reserved for a public purpose. Nor is the issue whether a plan reserves land for use exclusively for a public purpose. The issue is whether the making of ASP6 had the result that by reason of the making or amendment of DPS2 the appellants' land is reserved under DPS2 for a public purpose.
The critical provisions in this case are cl 9.8.2 and cl 9.8.3 of DPS2. It is those provisions which provide for the provisions of the ASP6 to apply to the appellants' land as if its provisions were incorporated in the DPS2. The Tribunal held that the making of ASP6 caused relevant provisions of DPS2 to potentially have the effect of the appellants' land being reserved under DPS2 for a public purpose. Whether or not the making of ASP6 did cause relevant provisions of DPS2 to have the effect of the appellants' land being reserved under DPS2 for a public purpose depend upon the relevant provisions of DPS2, that is cl 9.8.2 and cl 9.8.3.
Clause 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 …'. That is, the provisions of an Agreed Structure Plan will have the effect that land is reserved under the planning scheme for a public purpose if and only if the Agreed Structure Plan 'imposes a classification on the land included in it by reference to reserves'. The Agreed Structure Plan must impose a classification on the land, that is place it in the class of reserves and it must do so 'by reference to reserves'. 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'; that is, placed in the class of Local Authority Reservation.
The requirement that an Agreed Structure Plan 'imposes a classification on the land … by reference to reserves ...' and the requirement that land 'is classified as a Local Authority Reservation' under an Agreed Structure Plan each require at least that the structure plan 'classifies' the land as a reserve or Local Authority Reservation. ASP6 does not 'classify' the appellant's land as a reserve or a Local Authority Reservation. Furthermore, ASP6 does not impose a classification on the land included in it 'by reference to' reserves. Therefore, cl 9.8.2 and cl 9.8.3 of DPS2 do not operate on ASP6 so as to amend, or have the effect of amending, DPS2 to reserve the appellants' land for a public purpose.

Ground 2

Ground 2 is that the Tribunal erred in law in failing to find that DPS2 permitted development on the appellants' land for no purpose other than the public purpose by:
(a)erroneously treating the appellants' land as zoned Residential when it was zoned Urban Development; and
(b)failing to find that identification of public open space is itself the identification of the permitted and only permissible use for the appellants' land.
This ground of appeal is not made out.
I will first consider the effect of the text and zoning plan of ASP6 without regard to the structure plan and then consider the effect of land being identified as Public Open Space by the structure plan.
Under DPS2 the Scheme maps showed the appellants' land to be in the Urban Development Zone. The Urban Development Zone is not listed in the Zoning Table. Clause 3.14.3 of DPS2 says that subject to cl 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 under Part 9 of the Scheme and 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 of the subdivision or other development is received by the responsible authority. Clause 9.11 provides that it is the intent of a number of subclauses including cl 3.14.3 that no subdivision or development should occur on land including land in the Urban Development Zone until a Structure Plan in respect of that land has been prepared and adopted. Clause 9.11 goes on to provide the matters Council should consider if a subdivision or development application is received before a Structure Plan has been prepared and adopted.
Clause 3.14.4 provides that the permissibility of uses in the Urban Development Zone subject to subcl 9.8.2 and 9.8.3 shall be determined in accordance with the provisions of the relevant Agreed Structure Plan. The zoning plan of ASP6 identifies the appellants' land to be in the Residential Precinct. Clause 4.1 of ASP6 provides that the permissibility of uses in the Residential Precinct are to be in accordance with the Residential Zone as specified under the scheme, with the qualifications that I have set out earlier in these reasons. The effect of the zoning plan 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 (rural development involving high capital investment, offensive trades, mushroom farms and/or of a long term nature) will generally be discouraged. Clause 4.1 further provides that if a rural use is applied for, consideration is to be given to the matters in paragraphs (a) to (f) of cl 4.1 of ASP6. Therefore, development of the land is permitted in accordance with a Residential zoning under DPS2. In addition, some rural uses may be considered. Leaving aside the effect of the zoning plan of ASP6, cl 9.8.2 of DPS2 does not operate on ASP6 so as to amend, or have the effect of amending, DPS2 to permit development on the appellants' land for no purpose other than a public purpose.
The appellants say that the identification of the appellants' land as Public Open Space on the structure plan of ASP6 has the effect of prohibiting development except for a public purpose. I do not agree. The effect of cl 27(1) of sch 2 to the Regulations is that in considering an application for development approval in an area that is covered by ASP6 the City is to have due regard to, but is not bound by, the structure plan in deciding the application. Further, cl 6.8 of DPS2 provides that in considering an application for planning approval the Council shall have due regard to such of the specified matters as are in the opinion of the Council relevant to the use of development subject of the application, which matters include any agreed structure plan.
In City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 Martino J observed at [42] that the phrase 'due regard' has been in use in town planning matters in this State for many years. His Honour was considering the requirement in a town planning scheme that the relevant authority have due regard to any policy of the Commission which, in the opinion of the Council, is relevant to the proposed use or development. His Honour said of the words 'have due regard':
The words appear in pt VII of the Town Planning Scheme, which is concerned with applications and procedures for dealing with planning approval. In that context, the clear desirability of ensuring consistent, proper and orderly planning within the City indicates that the use of the phrase in cl 7 requires that proper, genuine and realistic consideration is given to the matters identified in the clause which are relevant [45].
In Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [57] Simmonds J referred to Maritime Services Board (NSW) v Liquor Administration Board (1990) 21 NSWLR 180 which concerned the meaning of the requirement in Liquor Act 1982 (NSW) s 99(3) that a decision‑maker, in its decision about the extent to which certain persons should bear the costs or work ordered to be done on licensed premises, have 'due regard' to any agreement or covenant entered into by those person in relation to the premises. Campbell J said that due regard requires something more than mere 'regard' and added:
To my mind the word 'due' in s 99(3) directs the first defendant that the regard paid to the agreement or covenant must be adequate in all the circumstances of the case (196).
ASP6 is a plan for the co‑ordination of future subdivision and zoning of the land to which it relates. In determining any application for development approval on land to which ASP6 relates the City must have due regard to the relevant provisions of ASP6, that is the City must give proper, genuine and realistic consideration to those provisions which consideration is adequate in all the circumstances. However, the City is not bound by the structure plan. The City may, in considering an application for development approval, depart from the structure plan if it is consistent with proper and orderly planning.
In this case 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.
The appellants submitted that the combined effect of the refusal of the shed application and the residential application because of the identification of the subject land as public open space in ASP6, which has the same force and effect as if it was a provision of DPS2, led to a conclusion, beyond any doubt, that the provisions of DPS2 combined with ASP6 prevent the land being developed for any purpose other than a public purpose. I do not agree with that submission. If the City decided that DPS2, in combination with ASP6, permits development on the appellants' land for no purpose other than a public purpose then the decision is wrong.
In any event, the City did not decide that DPS2, in combination with ASP6, permits development on the appellants' land for no purpose other than the provision of public open space. The City refused the shed application for the following reasons:
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 Agreed Structure Plan 6: East Wanneroo Cell 4 (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.
The City refused the residential application for the following reasons:
1.The proposal is inconsistent with and contrary to Clause 6 and Schedule 3 of the City of Wanneroo's Agreed Structure Plan No 6 ‑ East Wanneroo Cell 4 (Hocking and Pearsall) as the ability for the provision of Public Open Space would be compromised;
2.The proposal is inconsistent with and contrary to the objectives of the 'Primary Regional Road' reservation for which the land is reserved under the Metropolitan Region Scheme, and would significantly compromise the availability of the land for future road works;
3.The proposed access to and egress from the subject site does not comply with Western Australian Planning Commission Policy DC 6.1 ‑ Regional Road (Vehicular Access);
In considering the applications for planning approval the City was required to have due regard to such of the matters specified in cl 6.8 of DPS2 as are in the opinion of the Council relevant to the use or development subject of the application. Those matters include the aims and provisions of the Scheme and any other relevant town planning schemes operating within the Scheme area, the requirements of orderly and proper planning and any agreed structure plan prepared under the provisions of pt 9, any approved statement of planning policy of the Commission and any relevant policy or strategy of the Commission or any relevant planning policy adopted by the Government of Western Australia. It appears from the reasons stated by the City that it had due regard to the requirements of orderly and proper planning, the provisions of ASP6, the Metropolitan Region Scheme and a policy of the Commission. It appears that the City refused approval in the exercise of its discretion and not because it considered that DPS2 permitted development on the appellants' land for no purpose other than public open space.

Ground 3

Ground 3 is that the Tribunal erred in law in finding that DPS2 did not prohibit wholly or partially the continuance of a non‑conforming use or the erection alteration or extension of any building in connection with that non‑conforming use:
(a)thereby erroneously treating the identification of the appellants' land as public open space as leaving open for approval the alteration or extension of an existing non‑conforming use;
(b)when 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 of DPS2 and as a result could not be extended or altered under pt VI or pt VII of DPS2.
This ground is not made out.
A planning scheme may be made or amended with the effect that a previously lawful use of land or buildings may become prohibited. A scheme or amendment may provide that a use for a lawful purpose that is carried out immediately before the date when the scheme or amendment comes into force, and becomes prohibited or requires development consent on the commencement of the planning scheme, may be continued as a non‑conforming use. Prevention of continuance of a legally permitted use by a scheme or amendment incurs a liability to compensation by reason of s 174(1)(c) of the Planning Act. If the effect of the relevant provisions of DPS2, upon adoption of ASP6, was to render the appellants' existing lawful uses of the land non‑conforming, the land will be injuriously affected if the Scheme prohibits, wholly or partially, the continuance of the non‑conforming use or the erection etc of any building in connection with the non‑conforming use.
Part 7 of DPS2 deals with non‑conforming uses. Clause 7.1 provides that except as otherwise provided in the scheme, no provision of the scheme shall be deemed to prevent, amongst other things:
(a)the continued use of any land or building for the purpose for which it was being lawfully used at the gazetted date of the scheme; or
(b)the carrying out of any development thereon for which, immediately prior to that time, an approval or approvals, lawfully required to authorise a development to be carried out, were duly obtained and are current, provided that any conditions stipulated in the approval or approvals shall be complied with and these conditions shall be enforced by the Council as if they had been imposed under the Scheme.
Therefore, DPS2, as operated upon or affected by ASP6, does not prohibit wholly or partially the continuance of any non‑conforming use of the appellants' land.

Clause 7.2 of DPS2 provides:
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 or change the use of land from a non‑conforming use to another 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.
7.2.3Where an application is for a change of use from an existing non-conforming use to another non-conforming use, the Council shall not grant its planning approval unless the proposed use is:
(a)substantially less detrimental to the amenity of the locality than the existing nonconforming use; and
(b)in the opinion of the Council is closer to the intended purpose of the zone.
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.

Conclusion

There will be leave to appeal but the appeal will be dismissed.