THE MATCH GROUP and METRO SOUTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
[2012] WASAT 226
•20 NOVEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: THE MATCH GROUP and METRO SOUTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2012] WASAT 226
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR J JORDAN (MEMBER)
HEARD: 15 NOVEMBER 2012
DELIVERED : 20 NOVEMBER 2012
FILE NO/S: DR 215 of 2012
DR 216 of 2012
DR 226 of 2012
BETWEEN: THE MATCH GROUP
Applicant
AND
METRO SOUTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Planning and development - Statutory construction - Defined term - Context in which defined term used - 'New lots' - Whether includes new dwellings - Development Contribution Plan
Legislation:
City of Cockburn Town Planning Scheme No 3, cl 1.7.1, cl 6.3, cl 6.3.1, cl 6.3.5, cl 6.3.13, cl 6.3.13.1, cl 6.3.13.2(b), cl 6.3.13.2(d), Sch 1, Sch 12
Interpretation Act 1984 (WA), s 18, s 19
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 19
Planning and Development Act 2005(WA)
Result:
Preliminary issue decided in favour of respondent
Summary of Tribunal's decision:
The Tribunal was called upon to decide a preliminary question concerning the proper construction of provisions of the City of Cockburn Town Planning Scheme No 3 relating to developer contributions. The question largely turned upon whether the word 'lots' should be confined, in its context, to a definition within the Scheme, or whether the relevant portion of the Scheme, read as a whole, required a broader meaning.
The Tribunal examined the applicable principles of construction, and, having regard to the relevant portion of the Scheme read as a whole, declined to confine the operation of the provision based upon the defined meaning of the word 'lot'. Accordingly, the preliminary issue was decided in favour of the respondent.
Category: B
Representation:
Counsel:
Applicant: Mr P McQueen and Mr T Mouritz
Respondent: Mr C Bydder
Solicitors:
Applicant: Lavan Legal
Respondent: State Solicitor for Western Australia
Case(s) referred to in decision(s):
AB v State of Western Australia [2011] HCA 42
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Franco and City of Nedlands [2012] WASAT 53
Mills v Meeking (1990) 91 ALR 16
Re Shire of Mundaring; Ex parte Solomon & Ors [2007] WASCA 132
Re Town Planning Appeal Tribunal; Ex parte Environmental Protection Authority (2003) 27 WAR 374; [2003] WASCA 248
Western Australia Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In each of these three matters, the applicant, The Match Group, seeks a review by the Tribunal of a condition imposed on an approval to develop residential apartments on land within the City of Cockburn. The condition the subject of the review in each case is as follows:
Arrangements being made to the satisfaction of the Chief Executive Officer for the provision of the pro-rata subdivider contributions towards those items listed in the City of Cockburn Town Planning Scheme No 3 for Development Contribution Area 13 - Community Infrastructure.
In the course of the proceedings before the Tribunal, it emerged that the parties had a fundamentally different view as to the proper basis upon which developer contributions should be assessed for the purposes of the City of Cockburn Town Planning Scheme No 3 (TPS 3). In essence, the issue is as to whether contributions should be levied by reference to the number of lots involved in the development, or by reference to the number of dwellings to be developed. The Tribunal directed that that question be determined as a preliminary issue. More precisely, the parties framed the issue for preliminary determination as follows:
Whether the contributions required to be paid towards the Developer Contribution Plan (DCP) for the Development Contribution Area 13 - Community Infrastructure under the City of Cockburn Town Planning Scheme No 3 can be calculated by reference to the number of additional dwellings the subject of a planning approval or whether that contribution is confined to consideration of the number of new lots.
It is to that issue that these reasons are directed.
The statutory context
Clause 6.3.1 of TPS 3 defines a 'Development Contribution Plan' (DCP) to mean 'a Development Contribution Plan prepared in accordance with the provisions of State Planning Policy 3.6 Development Contributions for Infrastructure (SPP 3.6) and the provisions of this clause 6 of the scheme (as incorporated in schedule 12 to this scheme)'. A DCP thus forms part of the statutory scheme and must be construed accordingly.
The obligation of owners of land within a Development Contribution Area (DCA) (which is an area shown on the scheme map as a DCA with a number and included in Sch 12) to contribute to infrastructure costs within the DCA is found in cl 6.3.13 of TPS 3. That clause (omitting cl 6.3.13.4 which is not relevant for present purposes) reads as follows:
6.3.13.1An owner must make a cost contribution in accordance with the applicable development contribution plan and the provisions of clause 6.3.
6.3.13.2An owner’s liability to pay the owner’s cost contribution to the local government arises on the earlier of -
(a)the Western Australian Planning Commission endorsing its approval on the deposited plan or survey strata plan of the subdivision of the owner’s land within the development contribution area;
(b)the commencement of any development on the owner’s land within the development contribution area;
(c)the approval of any strata plan by the local government or Western Australian Planning Commission on the owner’s land within the development contribution area; or
(d)the approval of a change or extension of use by the local government on the owner’s land within the development contribution area.
The liability arises only once upon the earliest of the above listed events.
6.3.13.3Notwithstanding clause 6.3.13.2, an owner’s liability to pay the owner’s cost contribution does not arise if the owner commences development of the first single house or outbuildings associated with that first single house on an existing lot which has not been subdivided or strata subdivided since the coming into effect of the development contribution plan
…
It can be noted that liability to pay an owner's cost contribution can arise on the commencement of any development on the owner's land (cl 6.3.13.2(b)) or on the approval of a change or extension of use on the owner's land (cl 6.3.13.2(d)). Neither of those events necessarily involves the creation of new lots.
It can also be noted that cl 6.3.5 of TPS 3 makes reference to the DCPs in the context of subdivision, strata subdivision or development. That clause provides:
6.3.5Subdivision, strata subdivision and development
The local government shall not withhold its support for subdivision, strata subdivision or refuse to approve a development solely for the reason that a development contribution plan is not in effect, there is no approval to advertise a development contribution plan, or that there is no other arrangement with respect to an owner’s contribution towards the provision of community infrastructure.
Schedule 12 of TPS 3 sets out the DCP for Development Control Area 13 (DCA 13). Under the heading 'Method for calculating contributions', DCP provides:
The City’s Plan for the District identifies the needs that impact on the Development Contribution Plan. The contributions outlined in this plan have been derived based on the need for the facilities generated by the additional development in the Development Contribution Plan. This calculation excludes the demand for a facility that is generated by the current population in existing dwellings.
Contributions shall be calculated on the basis of the number of new lots created. Existing dwellings on a lot or lots to be subdivided or developed will be exempt from the contribution. Land required for public roads, public open space, drainage and other uses not including residential development will not be assessable. Where a lot may have further subdivision potential, for example as a grouped dwelling site, contributions will be sought at the next development approval stage where additional dwellings or lots are created.
Contributions applying to development of aged or dependant persons dwellings or single bedroom dwellings shall be calculated on the number of dwelling units permitted prior to the application of the variations permissible under clause 6.1.3.A3.i of State Planning Policy - Residential Design Codes.
(Underlining added)
We will refer to this part of Sch 12 as the Calculation Method Section, and to the first sentence of the second paragraph as 'the underlined sentence'.
The parties' contentions
The applicant relies upon the underlined sentence as prescribing the method of calculation of contributions. It contends that, by virtue of that sentence, the DCP requires that contributions be calculated only on the basis of new lots created, rather than new dwellings created. That contention is based on the proposition that the word 'lot', as defined in Sch 1 of TPS 3, 'has the same meaning as in the Town Planning Act but does not include a strata or survey strata lot'. The reference to the Town Planning Act is a reference to the Planning and Development Act 2005 (WA) (PD Act) (as successor to the Town Planning and Development Act 1928 (WA) which is referred to in the definition of Town Planning Act in Sch 1 of TPS 3 - see Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) s 19).
The meaning of 'lot' in the PD Act is as follows:
lot means a defined portion of land -
(a)depicted on a plan or diagram available from, or deposited with, the Authority and for which a separate Crown grant or certificate of title has been or can be issued; or
(b)depicted on a diagram or plan of survey of a subdivision approved by the Commission; or
(c)which is the whole of the land the subject of -
(i)a Crown grant issued under the Land Act 1933; or
(ii)a certificate of title registered under the Transfer of Land Act 1893; or
(iii)a survey into a location or lot under section 27(2) of the Land Administration Act 1997 or a certificate of Crown land title the subject of such a survey; or
(iv)a part‑lot shown on a diagram or plan of survey of a subdivision deposited with the Authority; or
(v)a conveyance registered under the Registration of Deeds Act 1856,
but does not include a lot in relation to a strata scheme, a lot in relation to a survey‑strata scheme, or a lot shown as common property on a survey‑strata plan, as those terms are defined in the Strata Titles Act 1985;
The applicant contends that that definition applies to the word 'lot' as used in the Calculation Method Section. The respondent contends that, construed in its proper context, and in order for the underlined sentence to operate sensibly in its context and in the broader context of cl 6.3 of TPS 3, it is necessary to read the sentence as if the words 'and/or dwellings' appeared after the word 'lots'. The sentence would then be construed as meaning 'Contributions shall be calculated on the basis of the number of new lots and/or dwellings created'.
The respondent (supported by the City of Cockburn which was given leave to make written submissions) submits that the underlined sentence, if read literally, renders much of the balance of that part of the DCP otiose or nonsensical. In particular, the respondent contends that if contributions are to be calculated solely on the basis of the number of new lots created, then:
(a)it is unnecessary to specify that existing dwellings are exempt from the contribution, because no contribution is payable in respect of any dwelling;
(b)it is not apt to refer to contributions being sought at the next development approval stage where additional dwellings are created, because no contribution would be payable in respect of those additional dwellings; and
(c)there is no need to make special provision for calculating the contribution payable in respect of the development of aged or dependant person dwellings or single bedroom dwellings because the contribution is not to be calculated by reference to the number of dwellings in any event.
The proper approach to construction
In substance, any difference between the parties as to the proper approach to interpretation of TPS 3, and the DCP was as to emphasis upon particular considerations rather than as to the approach to be taken.
The applicant referred to Re Town Planning Appeal Tribunal; Ex parte Environmental Protection Authority (2003) 27 WAR 374; [2003] WASCA 248; where McKechnie J considered the construction of defined terms in a town planning scheme. McKechnie J's observations were summarised by the Tribunal in Franco and City of Nedlands [2012] WASAT 53 (Franco) where the Tribunal said [25] - [28]:
25I mention briefly two other passages cited by McKechnie J which give the background to the orthodox approach to definitional statements.
26His Honour, at 399, cites Barwick CJ in Brown v Brook (1971) 125 CLR 275, at 277:
The meaning assigned by such a definition section is no more than, and perhaps even less than, a prima facie meaning always yielding to a context which betrays an intention to use the defined word in a different sense, with a less extensive or perhaps a more restrictive meaning. A definition section is not intended itself to express the parliamentary intention in an enacting provision unless the provision itself does not indicate the intention with which the defined word is used.
27McKechnie J also cites, at 399, Burt J (as he then was) in Duperouzel v Cameron [1973] WAR 181, at 182:
This is because the word 'means' is a word of true definition and as such the words following it stand as an exclusive statement of what the subject expression includes. As by the Act the defined expression is to carry that meaning 'unless a contrary or other intention appears' the possibility always exists that an intention that it should bear a different meaning may appear, and should it appear, the definition must be departed from so as to accommodate that intention.
28As Burt J indicates, 'the definition must be departed from so as to accommodate [the] intention'.
Both parties acknowledge s 18 of the Interpretation Act 1984 (WA) which requires that, in the interpretation of a written law, a construction that would promote the purpose and object underlying the written law shall be preferred to a construction that would not promote that purpose or object.
The High Court has repeatedly reinforced the importance of context to statutory interpretation. In CIC Insurance Ltd v Bankstown Football ClubLtd (1997) 187 CLR 384 (CIC) at 408, the majority said:
Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
(Citations omitted)
The point was reinforced by the joint judgment of the Court in AB v State of Western Australia [2011] HCA 42 (AB) at [10] where the Court spoke of 'the importance of the context, general purpose, policy and fairness of a statutory provision as guides to its meaning'. They continued:
The modern approach to statutory interpretation uses 'context' in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed.
It is apparent from both CIC and AB that resort to extrinsic materials to ascertain context is permissible without recourse to provisions of the nature of s 18 and s 19 of the Interpretation Act.
The applicant submitted that the approach explained by the Tribunal in Franco required 'an orthodox literal approach' to be applied in the first instance. If what is meant by that expression is reflected in the passage of the judgment of Dawson J in Mills v Meeking (1990) 91 ALR 16 at 31 when he said:
However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes[,]
then we agree.
If however the submission is that the Tribunal is bound to accept that a particular word used by the draftsman must necessarily carry its defined or literal meaning, regardless of its context, we do not agree. One need go no further than cl 1.7.1 of TPS 3 which provides that 'Unless the context otherwise requires, words … used in the Scheme have the same meanings as they have … in the Dictionary of defined words … in Schedule 1'.
The preferred construction
We agree with the submission made by the respondent (set out in [13] above) as to the consequences of the applicant's construction of the Calculation Method Section. To read the underlined sentence as excluding any capacity to calculate contributions on the basis of new dwellings, as distinct from new lots, would render much of the balance of the paragraph nonsensical. Furthermore, it would render the reference to refusal to approve a development, found in cl 6.3.5 of TPS 3, nonsensical.
A fundamental difficulty with the applicant's position is that it is founded on the proposition that, save for a concession made in oral submissions, the underlined sentence stands alone as identifying the basis of calculation of contributions. The concession made at hearing was that that part of the Calculation Method Section, which relates to contributions applying to development of aged or dependent persons' dwellings or single bedroom dwellings, was an exception to the requirement for contributions to be based upon lots rather than dwellings. In our view, the appropriate approach to answering the preliminary issue is to construe the whole of the Calculation Method Section, rather than to focus upon the underlined sentence in isolation.
A number of observations can be made about the Calculation Method Section. The first is that it notes that contributions have been derived based on the need for facilities generated by additional development. It is quite apparent that the need for facilities of the type concerned arises from additional population, more directly than from additional lots. For example, a lot which generates a large number of dwellings, as these proposals do, obviously creates a greater need than a single residential lot. The object of the provision is clearly more readily achieved if contributions are calculated by reference to increased demand by reason of the creation of new dwellings.
The second observation that can be made is that the reference to the exclusion of demand 'generated by the current population in existing dwellings' suggests a correlative inclusion of demand generated by new dwellings, and thus increased population.
Thirdly, as the respondent submitted, there would be no need to exclude 'existing dwellings on a lot' if dwellings were not otherwise a basis for requiring contributions.
Fourthly, the reference to 'further subdivision potential, for example as a group dwelling site' suggests that the draftsperson was using the expression 'subdivision potential' in a way which contemplated creation of additional dwellings as well as creation of additional lots as defined by the PD Act. Similarly, again as the respondent has submitted, it would not be apt to refer to contributions being sought at the next development approval stage where additional dwellings are created, because no contribution would be payable (on the applicant's construction of the Contribution Method Section) in respect of those additional dwellings.
The applicant argues that the sentence dealing with contributions applying to development of aged or dependent persons' dwellings stands as a separate basis of calculation for those particular types of development. Its submission is that the Calculation Method Section provides for two bases of calculation. One is on dwellings in aged or dependent or single bedroom developments. The other is on the basis of new lots created. In our view, the provision relating to aged or dependent persons' dwellings is simply designed to prescribe how the number of dwellings in such developments are to be ascertained. It is, in our view, predicated on the proposition that development of new dwellings otherwise gives rise to an obligation to make contributions.
In our view, the application of the narrow definition of 'lot' to the DCP would be to ignore the contrary intention which the whole of the relevant part of the DCP evinces.
That conclusion is reinforced when regard is had to the object and purpose of the DCP. In broad terms, the requirements for contribution arise because of the additional need for the provision of infrastructure, or improved infrastructure, by reason of the creation of additional demand. In some circumstances (depending on the nature of the area and its use), there may be occasions when the equitable distribution of responsibility for meeting those costs can be assessed by reference to the number of lots created by development. For example, a subdivision of a green fields site into single residential lots. Where, however, as is the case in relation to the areas with which we are concerned in this matter, the need for improved infrastructure arises by reason of increased population likely to flow from the development, the object of equitable distribution of cost is more readily fulfilled if contributions are assessed by reference to dwellings rather than lots. It can readily be seen that an inequitable distribution of contribution obligation is likely to occur where one lot permits the development of a large number of dwellings, but another lot permits the development of far fewer dwellings.
Read as a whole, and for the reasons set above, we consider that the Calculation Method Section contemplates that contributions will be calculated on the basis of new lots and/or new dwellings. In other words, we consider that the word 'lots' should not be construed in accordance with the definition contained in Sch 1 of TPS 3 (and in turn the PD Act) because the context otherwise requires that it be read as including dwellings.
In Re Shire of Mundaring; Ex parte Solomon & Ors [2007] WASCA 132 at [25] McLure JA (as she then was) noted that:
Further, planning schemes are not drawn with the precision of Acts of Parliament and should be construed broadly rather than pedantically and with a sensible practical approach: Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 at [18]; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at [31].
In Western Australia Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259, Edelman J referred to that observation, and concluded that he did not consider that it suggested different rules for construction of words in planning schemes from rules concerning construction of words in statutes. He said, however, that the fact that planning schemes are not drafted by a parliamentary draftsperson is a relevant aspect of context for consideration in the exercise of construction. He said at [37] 'The reasonable reader of DPS 1 must appreciate that the drafting of that document can give rise to a greater likelihood of infelicities in the language used than might occur in an Act of Parliament'.
That observation applies to this case. The use of the word 'lot' in its restrictive sense does not fit sensibly in the context of the Calculation Method Section. It is an infelicity of drafting which should be construed broadly and sensibly.
In our view, the construction of the DCP contended for by the respondent is to be preferred.
Extrinsic materials
The conclusion we have reached is reached on the basis of the construction of the whole of the Calculation Method Section. It is not dependent upon the extrinsic materials to which our attention was drawn by the parties.
Having said that, it can be observed that the examination of the history of Amendment 81, which introduced the relevant provisions into TPS 3, strongly reinforces the conclusion which we have reached. It is not necessary for us to set out in detail all the materials to which our attention was drawn. The point is most clearly illustrated in a portion of the Schedule of Submissions, prepared following public advertisement of the proposed Amendment No 81, which originally provided that:
Method for calculating contributions:
Contributions shall be calculated on the basis of the maximum number of dwellings that can be developed on a lot or lots under the applicable zoning or R coding.
A submission had been received that that provision was not consistent with the intent of SPP 3.6 on the basis that the fundamental principle is need and nexus. It was argued therefore that it was not a theoretical number of households, but rather the actual number, that needs to be the basis of any calculation. That submission was accepted as valid. It was recommended that that aspect of the proposal be altered to align with SPP 3.6. Although not spelt out, it is clear that alignment with SPP 3.6 in the relevant sense called for contributions based on the actual number of dwellings, rather than the maximum potential number of dwellings on a lot under the applicable zoning. The underlined sentence was clearly a response to that recommendation. As counsel for the applicant quite properly conceded, the failure to specifically refer to dwellings in the underlined sentence was 'probably a mistake'. We are satisfied that it was either a mistake, or an assumption by the drafter that the expression 'new lots created' encompassed new dwellings.
The fact that, in certain other portions of the schedules of submissions, references were made to calculations based on new lots created does not undermine the conclusion we have reached. Read in their context, the use of the word 'lots', in the passages to which our attention was drawn, was appropriate in the context of the particular submission being dealt with, and does not support a view that it was intended to limit the basis of calculation of contributions only to the creation of new lots.
Conclusion
For those reasons, our answer to the question posed by way of preliminary issue is:
Contributions required to be paid towards the Development Contribution Plan for the Development Contribution Area 13 - Community Infrastructure under the City of Cockburn Town Planning Scheme No 3 can be calculated by reference to the number of additional dwellings the subject of a planning approval.
Orders
1.The answer to the question posed by way of preliminary issue is:
Contributions required to be paid towards the Development Contribution Plan for the Development Contribution Area 13 - Community Infrastructure under the City of Cockburn Town Planning Scheme No 3 can be calculated by reference to the number of additional dwellings the subject of a planning approval.
2.The matter is adjourned for directions to 10 am on 7 December 2012 in order to further program the matter.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
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