| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SHIRE OF SERPENTINE-JARRAHDALE and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 71 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 8 AUGUST 2012 DELIVERED : 2 NOVEMBER 2012 PUBLISHED : 17 MAY 2013 FILE NO/S : DR 54 of 2012 BETWEEN : SHIRE OF SERPENTINE-JARRAHDALE Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning Preliminary issue Construction and interpretation of planning instruments - Principles of statutory interpretation Rights of review Whether Shire has right of merits review in Tribunal - Shire the proponent of a structure plan - Scheme expressly authorising Shire to propose such structure plans Western Australian Planning Commission modifying structure plan - Modifications significant - 'Appeal' rights under Scheme limited to proponents who are the owners of relevant land - Shire only had statutory management of
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certain land - Whether such land relevantly 'owned' by Shire - Held: such interests in land do not amount to relevant ownership to exercise review rights - Whether in the alternative a 'strained construction' permissible to give review rights - Interpretation not to amount to redrafting Scheme - Textual basis for reading in additional words - Drafting inadvertence - Additional words read into definition of 'Proponent' to give Shire right of review Words and phrases: 'Proponent'; 'Owner of land' Legislation: Environmental Planning and Assessment Act 1979 (NSW), s 75B(2)(b)
Land Administration Act 1997 (WA), s 46(1)
Planning and Development Act 2005 (WA)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 5.18, Appendix 1 Result: Respondent Commission's objections to jurisdiction overruled
Summary of Tribunal's decision: The Shire of Serpentine-Jarrahdale was the proponent of the Byford Town Centre Local Structure Plan. Under the Shire of SerpentineJarrahdale Town Planning Scheme No 2 the Shire was expressly authorised to prepare and submit this structure plan for approval or modification by the Western Australian Planning Commission.
The Commission modified the proposed structure plan. The Shire objected to the Commission's modifications upon the basis that, amongst other things, certain infrastructure proposals would, in effect, unreasonably burden the Shire. It was also alleged that the proposed drainage design was technically deficient.
The Shire sought a review of the Commission's decisions in the State Administrative Tribunal.
A preliminary jurisdictional point arose. The Shire of SerpentineJarrahdale Town Planning Scheme No 2 gave rights of 'appeal' only to the 'proponent' of a structure plan. However, a 'proponent' was defined in terms of the ownership of certain land: '[an] owner or owners of land to which the Proposed Structure Plan relates that has or have submitted that Proposed Structure Plan'. The Shire of SerpentineJarrahdale Town Planning Scheme No 2 defined an 'owner' of land in wide terms by reference to various categories of property ownership.
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The Shire did not, in fact, own (in the usual sense of that word) any land in the relevant area, although the Shire did hold extensive statutory rights of 'care, control and management' in respect of certain Crown (or State) land which was reserved for certain public purposes.
The Tribunal did not accept that such rights in land amounted to the relevant ownership of land such as to give the Shire a right of review.
However, the Tribunal considered that by giving the right of 'appeal' clause in the Shire of SerpentineJarrahdale Town Planning Scheme No 2 a 'strained construction', the Shire could bring its review into the Tribunal.
Such a construction did not amount to redrafting; rather, it was to give effect to the drafter's intentions. Legislative drafting 'inadvertence' was a proper basis to invoke the principle of giving legislation a 'strained construction'. This required a basis in the text of the legislative instrument under examination for the reading in of certain words.
The Tribunal examined cases where courts, at the highest level, had invoked such a power. In a planning case in New South Wales, the Judge had said: 'If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed'.
Here, the Tribunal noted that the Shire was expressly empowered to propose structure plans and that there was nothing unusual about this. In planning law elsewhere in Australia there was recognition that a determining or consent authority could itself be the proponent of some regulated activity. The essential textual basis for the construction to be adopted was therefore made out by these provisions in the Scheme. Secondly, the Tribunal held:
'[T]here is [an] undoubted public benefit in having a right to a merits review of a … structure plan decision originating from a local government proponent of the plan. Generally speaking, rights of review should be read liberally and it … make[s] no practical or logical sense to restrict that right solely to the owners of land as "Proponents", as a literal reading of the text may suggest. The availability to the Shire of judicial review is not an equivalent to faster, cheaper review on the merits in a Tribunal such as this, with the added advantage of facilitative dispute resolution to resolve matters of difference'.
Finally, the Tribunal noted that on the facts of this case the review itself, if it proceeded, would raise matters peculiarly or mostly within the knowledge, expertise and province of the Shire and could only be properly agitated by the Shire itself as an applicant for merits review. The Tribunal said:
'It seems strange indeed that the public interest in such matters is to be considered in effect through the [restrictive] prism of the more or less standard interests of the [private] owners of land, who are usually the developers and proponents'.
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The Tribunal therefore overruled the Commission's objection and read the necessary missing words into the Scheme so as to provide the Shire with a right of review.
The Tribunal then referred the matter for further mediation.
Category: B
Representation: Counsel:
Applicant : Mr DW McLeod
Respondent : Dr S Willey
Solicitors:
Applicant : McLeods
Respondent : State Solicitor for Western Australia
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City of Perth [2006] WASAT 343; (2006) 47 SR (WA) 234
Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292
Director-General Department of Land and Water Conservation v Jackson [2003] NSWLEC 1; (2003) 25 LGERA 304
Parks & Playground Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346
Worsley Timber 2000 Pty Ltd (In Liq) v Commissioner of State Revenue [2007] WASC 155; 69 ATR 771
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This review has raised an unusual threshold issue concerning whether a local government, the Shire of Serpentine-Jarrahdale (Shire) may itself seek, under the Shire's own town planning scheme, in effect, merits review of its own structure plan, being a plan formally initiated by the Shire. 2 The respondent, the Western Australian Planning Commission (WAPC or Commission), has modified that structure plan and denies that the Shire may come to the State Administrative Tribunal to seek a review of its decision. 3 More formally stated, the preliminary issue is as follows: on a proper construction of the provisions of the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2), is the applicant the 'proponent' (within the meaning of TPS 2) of the Byford Town Centre Local Structure Plan (LSP) so as to be able to exercise the right of 'appeal' under cl 5.18.8.1(b) of TPS 2? 4 So far as is relevant, cl 5.18.8.1(b) of TPS 2 provides as follows: 5 For the reasons that follow, the answer to the question stated above is 'yes'. 6 The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Agreed facts 7 The relevant facts are common ground and may be found at paragraphs 2.1 to 2.16 of the applicant's responsive statement dated 30 July 2012. 8 In summary, the critical facts are: (Page 6)
1) The Byford Development Area is governed by the LSP, a document prepared and adopted after approval by the Commission in August2005. 2) Each relevant precinct in the Byford Development Area requires a detailed structure plan. 3) The Shire initiated, in one of those precincts, a detailed structure plan, namely, the LSP. 4) The LSP was eventually approved by the WAPC under TPS 2 subject to major modifications, in May 2011. 9 I will return to the impact of these modifications in a moment.
Structure plans under TPS 2 10 Clause 5.18 of TPS 2 deals with structure plans, including development areas; the adoption and approval of proposed structure plans; changes to or departures from structure plans; detailed area plans; the operation of structure plans and, relevantly, 'appeal' or, more accurately, review rights in relation to such matters. 11 The Shire had particular concerns with the WAPC's required modifications to its LSP as regards, amongst other things, certain alleged infrastructure burdens on the Shire and alleged technical deficiencies in relation to drainage design. 12 The Shire wished to review these matters in the Tribunal; the Commission says that the Tribunal has no jurisdiction to entertain a review of the Commission's modifications. 13 The Shire is expressly authorised, as I have mentioned, to prepare such a structure plan: see cl 5.18.3.1 of TPS 2. If the Shire were a 'proponent' of the structure plan within the meaning of TPS 2, then the express right to seek a review in this Tribunal would seem to be established: see cl 5.18.8 of TPS 2. 14 'Proponent' is defined in Appendix 1 of TPS 2 in the following terms: … any owner or owners of land to which the Proposed Structure Plan relates that has or have submitted that Proposed Structure Plan … (Page 7)
Is the Shire the 'owner' of relevant land? 15 'Owner' is defined extensively by reference to four components in TPS 2, as follows (emphasis added): Owner - in relation to any land includes the Crown and every person who jointly or severally whether at law or in equity: (i) is entitled to the land for an estate in fee simple in possession; or (ii) is a person to whom the Crown has lawfully contracted to grant the fee simple of the land; or (iii) is a lessee or licensee from the Crown; or (iv) is entitled to receive or is in receipt of, or if the land were let to a tenant, would be entitled to receive the rents and profits thereof, whether as a beneficial owner, trustee, mortgagee in possession, or otherwise. 16 As the Shire has, in the relevant area, vested in it for certain public purposes a Town Hall site (namely, Lot 850) and appears to derive limited income therefrom, unsurprisingly, Mr D McLeod, counsel for the Shire, sought to characterise such possession and rights as ownership within the meaning of this definition. 17 The WAPC's counsel, Dr S Willey, drew attention to the statutory framework under the Land Administration Act 1997 (WA), which characterises such rights as held by the Shire as those of 'management' status. That is to say, under s 46(1) of that Act, the Shire has the 'care, control and management' of the land which is reserved for certain public purposes. 18 Assuming that Lot 850 is relevantly affected by the LSP, I very much doubt that it was ever within the contemplation of the drafter of TPS 2 that 'owner' in any of the four mentioned categories would, in effect, receive such an extended meaning in the circumstances we are concerned with, so as to encompass such statutory vesting and management rights (extensive as they appear to be) of what is otherwise considered to be Crown (or State) land. 19 Senior Member Parry, as he then was, in the context of the Crown's ownership (and not a local government's ownership) of certain road reserves, said in Adbooth Pty Ltd and City of Perth [2006] WASAT 343; (2006) 47 SR (WA) 234 at [41]: (Page 8)
The word 'owner' is a non-technical term and bears its natural and ordinary meaning of 'someone who owns; a proprietor': The Macquarie Dictionary (Macquarie, 4th ed, (Sydney) 2005), page 1025. A 'proprietor' is 'someone who has the exclusive right or title to something; an owner, as of property' (page 1140). 20 The proprietorship which is contemplated by, or the premise of the use of the term 'owner' as defined, is not, in my opinion, met by the statutory management rights, powers and responsibilities given to the Shire in relation to Lot 850.
Can the Shire be considered as a proponent? 21 Of more interest is whether there is any basis in the principles of statutory interpretation for reading 'proponent' in a way which extends the rights of review to a local government proponent. The implication of words by an interpreting authority - here, this Tribunal - to achieve this effect is extensively discussed in, for example, DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, 2011), at pages 54 - 60. This authority or ability given to or assumed by courts and tribunals to give a 'strained construction' is not the same as redrafting by a court or a tribunal. 22 The Australian work in this area found in the decisions of McHugh JA, as his Honour then was, in the New South Wales Court of Appeal (see, for example, Bermingham v Corrective Services Commission (NSW) (1988) 15 NSWLR 292), is apparently endorsed by the learned authors of Statutory Interpretation in Australia, and a number of examples are cited by them of superior courts adopting these principles. The caution that any such implication must be 'text based', the emphasis of the former New South Wales Chief Justice (Spigelman CJ), is also noted by the learned authors (see at pages 56 and 57). 23 These principles have been directly applied in planning cases in the major planning court in Australia, the New South Wales Land and Environment Court. Two examples, both of which are reported, may be cited. In Director-General Department of Land and Water Conservation v Jackson [2003] NSWLEC 1; (2003) 25 LGERA 304, Bignold J referred, at [93], to the New South Wales Court of Appeal, which: … constructed a hypothetical dialogue with a legislative draftsman as to what [the draftsman] would have provided in the language of the statutory provision if relevant factual matters had been drawn to his attention which suggested that the legislative language employed may have required some (Page 9)
elaboration or clarification. The dialogue proceeded upon the basis that the legislative purpose of the provision had been clearly established. 24 His Honour continued, at [94]: If I were to adopt the same approach in the present case, I would have no doubt that once the legislative draftsman was made aware that the concept or term 'designated development' was a defined term under the [Environmental Planning and Assessment Act 1979 (NSW)] which only became enlivened or relevant in the operation of the substantive provisions of that Act which provisions only operated if relevant controls were contained in an operative environmental planning instrument he [the draftsman] would immediately respond by saying that his intention was to exclude from the application of the [Native Vegetation Conservation Act 1997 (NSW)] clearing that is, or is part of, designated development within the meaning of the [Environmental Planning and Assessment Act 1979 (NSW)], the carrying out of which development has been authorised by the grant of a relevant development consent. The emphasised words remedy the legislative inadvertence. 25 At [95] and [96], his Honour concluded: 26 Likewise, in Parks & Playground Movement Inc v Newcastle City Council [2010] NSWLEC 231; (2010) 179 LGERA 346 Biscoe J said, at [79], (emphasis added): Where the purpose of a legislative provision is clear, a court may be justified in giving it a strained construction to achieve that purpose provided the construction is neither unreasonable nor unnatural. If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if they will give effect to the legislative purpose … 27 I mention, for the sake of completeness, that Simmonds J in the Supreme Court of this State in Worsley Timber 2000 Pty Ltd (In Liq) v Commissioner of State Revenue [2007] WASC 155; 69 ATR 771 (Page 10)
confirmed, at [394], that this approach to statutory interpretation was open: There is authority that the fact a meaning is a 'strained' one will not prevent the Court giving effect to that meaning in certain circumstances.
Should these principles be applied here? 28 Here, there are several, I think, compelling factors indicating relevant drafting inadvertence. First, I start with the textual basis that expressly enables a local government to act the same as a 'proponent' (otherwise, as we have seen, defined in terms of ownership), and to prepare a structure plan and to submit the same to the WAPC. There is nothing particularly peculiar in the notion that in the planning field the usual determining or consent authority may also, in some cases, be a 'proponent'. Compare, for example, the former s 75B(2)(b) of the Environmental Planning and Assessment Act 1979 (NSW),which dealt with cases where the 'major infrastructure or other development … is an activity for which the proponent is also the determining authority'. 29 Secondly, there is the undoubted public benefit in having a right to a merits review of a WAPC structure plan decision originating from a local government proponent of the plan. Generally speaking, rights of review should be read liberally, and it seems to me to make no practical or logical sense to restrict that right solely to the owners of land as 'proponents' as a literal reading of the text may suggest. The availability to the Shire of judicial review is not an equivalent to faster, cheaper review on the merits in a Tribunal such as this, with the added advantage of facilitative dispute resolution to resolve matters of difference. 30 Thirdly, the facts here suggest that, if in the abstract the review itself were justified, matters peculiarly or mostly within the knowledge, expertise and province of the Shire could only be properly agitated by the Shire itself as an applicant for merits review. Dr Willey, quite properly, did not seek to challenge the Shire's motivations or bona fides in this regard. 31 Dr Willey argues, however, that the limited definition of 'proponent' was deliberate and reflects the interests of landowners (usually, it must be said, private landholders) who generally would pay for structure plan infrastructure costs. Also it reflects, in Dr Willey's submission, a wellestablished policy in this State of confining review rights to affected landowners. (Page 11)
32 With respect, none of this seems to me to answer the case where a public authority can bring about a structure plan under its own Scheme and can have genuine concerns about the impact on the local government authority itself of the final form of that structure plan. It seems strange indeed that the public interest in such matters is to be considered, in effect, through the prism of the more or less standard interests of the owners of land who are usually the developers and proponents. Of course, in any case, such private interests may have little, if any, desire to see a review that may lead to a perceived increase and burden placed upon them. 33 In these circumstances, and on the basis of the authorities discussed above, it seems to me that the Tribunal is justified in reading the clause conferring review rights as extending to a local government 'proponent' who is expressly authorised to initiate a structure plan. This requires the word 'proponent', as defined in Appendix 1 of TPS 2, to be read as if words to the effect of '… including where the Shire has submitted a Proposed Structure Plan' were included in the relevant text. 34 The Commission's objections to jurisdiction are overruled.
Conclusions and orders 35 Therefore, for the reasons set out above, the orders of the Tribunal will be as follows: |