Thomason v Regional Joint Development Assessment Panel - [2021] WASC 380

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   THOMASON -v- REGIONAL JOINT DEVELOPMENT ASSESSMENT PANEL [2021] WASC 380
CORAM:   SMITH J
HEARD:   8 OCTOBER 2021
DELIVERED          :   5 NOVEMBER 2021
FILE NO/S:   CIV 1496 of 2021
BETWEEN:   BRADLEY THOMAS THOMASON
First Applicant
NORMA ELIZABETH THOMASON
Second Applicant
RICHARD WALTER PRITCHARD FARRIS
Third Applicant
SHARMAN LEE FARRIS
Fourth Applicant
AND
REGIONAL JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
A & R DEVELOPMENT HOLDINGS PTY LTD
Other Party

Catchwords:

Administrative Law - Application for judicial review - Application for writ of certiorari - Decision of Joint Development Assessment Panel to grant development approval under local planning scheme - Whether power to approve a development comprising a building that contained a building height of more than two storeys

Statutory construction of modifications to State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments effect of provisions as modified read into the local planning scheme - Planning and Development Act 2005 (WA)

Statutory construction - force and effect of provisions of a State planning policy where the specified provisions are to be read as part of the local planning scheme

Statutory construction - Specified provisions of to State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments to be construed as amended from time to time

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development (Local Planning Schemes) Regulations
Planning and Development Act 2005 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

First Applicant	:	PG McGowan
Second Applicant	:	PG McGowan
Third Applicant	:	PG McGowan
Fourth Applicant	:	PG McGowan
Respondent	:	No appearance
Other Party	:	P McQueen

Solicitors:

First Applicant	:	Kyle & Company
Second Applicant	:	Kyle & Company
Third Applicant	:	Kyle & Company
Fourth Applicant	:	Kyle & Company
Respondent	:	State Solicitor's Office
Other Party	:	Lavan

Case referred to in decision:

2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339

Table of Contents

1.0 Introduction

2.0 The evidence

3.0 LPS 21 and the legislative framework

3.1 Principles of construction - general principles - a purposive approach to the construction of local planning schemes

3.2 The operative effect of provisions of the Residential Design Codes (as modified) when read as part of local planning schemes

3.3 The relevant provisions of LPS 21 and State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments as modified, and to be read into LPS 21

3.4 The relevant provisions of State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments

4.0 Is jurisdictional error established?

SMITH J:

1.0 Introduction

Pursuant to regs 6 and 7 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA), the Other Party elected to have an application for development approval for a mixed-use development, on Lots 26 and 28 Geographe Bay Road and Lots 23 and 25 Lorna Street, Dunsborough (the subject property), determined by a development assessment panel.
On 23 February 2021, the Regional Joint Development Assessment Panel (JDAP) granted development approval to the Other Party.
The subject property is zoned R80 under the City of Busselton Local Planning Scheme No. 21 (LPS 21), and is situated less than 150m from the mean high water mark of Dunn Bay in Dunsborough. [1]
[1] Defined in pt 7, sch 1, div 1 of City of Busselton Local Planning Scheme No. 21, 'in relation to tidal waters, means ordinary high-water mark at spring tides'.
The JDAP development approval is for a four-storey mixed-use development comprising a restaurant/café to be located on the ground floor; 28 multiple dwellings across four storeys; a residents' gym on the ground floor; 44 secure, covered resident car parking bays and five motorcycle bays; and on-street parking along Geographe Bay Road.[2]
[2] Regional Joint Development Assessment Panel Agenda, 95; annexed to Statement of Agreed Facts, filed 23 August 2021.
The applicants each apply for judicial review of the JDAP decision, and a writ of certiorari to quash the development approval. They challenge the development approval on one ground, which goes solely to the number of storeys of the development.
The applicants claim that, in approving the development, the JDAP made an error which goes to its jurisdiction in that (in approving a mixed-use development comprising a four-storey building) by reference to cl 4.3.2 and cl 4.8 of LPS 21, the JDAP erred in law as it had no power to approve a development on the subject property comprising a building containing more than two storeys.

2.0 The evidence

The JDAP filed a notice of intention to abide by the decision of the court. The Other Party, the owner of the subject property, entered an appearance, filed affidavits, and an outline of submissions opposing the application for judicial review.
The relevant evidence comprises documents annexed to an affidavit sworn by Bradley Thomas Thomason (the First Applicant) on 18 June 2021, when read together with the Regional Joint Development Assessment Panel Agenda annexed to a Statement of Agreed Facts, filed 23 August 2021, and annexures to an affidavit (filed by the Other Party) affirmed by Alexander Mark McCarney McGlue on 6 August 2021.
The relevant evidence consists of:
(a)the text of LPS 21 and Scheme Zoning Map;
(b)State Planning Policy 7.3 Residential Design Codes Volume 2
- Apartments;
(c)the agenda for the meeting held by the JDAP on 23 February 2021; and
(d)the development approval.

3.0 LPS 21 and the legislative framework

3.1 Principles of construction - general principles - a purposive approach to the construction of local planning schemes

Local planning schemes are prepared or adopted by a local government and following advertisement and other necessary regulatory approvals are approved by the Minister (responsible for the administration of the Planning and Development Act 2005 (WA)). Following approval, a local planning scheme is published in the Gazette.[3] Once published in the Gazette, a local planning scheme has effect as if it were enacted by the Planning and Development Act.[4]
[3] Planning and Development Act 2005 (WA), pt 5, div 4.
[4] Planning and Development Act 2005 (WA) s 68(1).
In 2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale, I recently set out the established principles for construction of a local planning scheme as follows:[5]
[5] 2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339 [34] - [40] (footnotes omitted).
Pursuant to s 68(1) of the Planning and Development Act, a local planning scheme is to be construed as if it formed part of the Act. Consequently, the construction of a local planning scheme is to be approached in the same way as construction of a statutory provision.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The importance of construction of legislation is to begin in the text itself by regard to its context and purpose. Statutory context within immediate provisions and the whole of an Act is to be considered from the beginning of the task. The Court of Appeal summarised these well-known principles in Australian Unity Property Ltd v City of Busselton:
The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use. As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
'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.'
This focus on the statutory text may be seen as an aspect of the rule of law. It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text. This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:
'The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature"… it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.'
Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates. As French CJ observed in Alcan:
'The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [(1991) 172 CLR 319 at [340] as: ''dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage." In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.'
Thus, context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
Regard must also be given to the purpose and object of the text to ascertain the intention of the legislature in making the law in question. The responsibility of a court in this regard was described by Gageler J in Work Health Authority v Outback Ballooning Pty Ltd:
'[O]ne of the surest indexes of a mature and developed jurisprudence' is 'to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning'. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly 'to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have'. That a finding of purpose can involve a 'contestable judgment' only heightens that responsibility.
'The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation' and 'are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked'. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to 'the constitutional relationship between courts and the legislature'.
In construing a legislative provision the task is not to have regard to any assumptions about the desired operation of the relevant provisions of an Act.
It also must be borne in mind as the Court of Appeal pointed out in Australian Unity Property Ltd v City of Busselton that:
In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.

3.2 The operative effect of provisions of the Residential Design Codes (as modified) when read as part of local planning schemes

Although it is not in contest between the parties that the Residential Design Codes are to be read into LPS 21 as amended from time to time, in construing the provisions of Volume 2 - Apartments (as modified) in LPS 21, to dispose of the ground of the application, it is of assistance to first consider the legislative scheme which has the effect that the provisions of Volume 2 - Apartments (as modified) form part of the operative text of LPS 21.
The 'Residential Design Codes State Planning Policy 7.3, Volume 2 ‑ Apartments' is a State planning policy adopted pursuant to pt 3 of the Planning and Development Act.
The Residential Design Codes (referred to as the R-Codes), as modified, are to be read as part of LPS 21, and thus are to have legislative effect through two legislative pathways, both of which substantially lead to the same legislative effect.
The first is through the operation of s 77 of the Planning and Development Act which provision applies because the Residential Design Codes are made as a State planning policy,[6] and the second is by the effect of cl 25 of the model provisions which form part of LPS 21, pursuant to s 256 and s 257A of the Planning and Development Act and reg 10(2) and cl 25 of Schedule 1 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
[6] State Planning Policy 7.3 Residential Design Codes is split into two volumes, Volume 1 and Volume 2 - Apartments, gazetted 24 May 2019.
As to the operation of s 77 of the Planning and Development Act, in 2 Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale, I observed:[7]
[7] 2Thomas Road Pty Ltd v Shire of Serpentine-Jarrahdale [2021] WASC 339 [42] - [44].
State planning policies are made by the Planning Commission with the approval or on the direction of the Minister. A State planning policy is required to be directed primarily towards broad general planning and facilitating the coordination of planning throughout the State by local governments and may make provision for any matter which may be the subject of a local planning scheme.
Section 73 of the Planning and Development Act requires a local government to be responsible for enforcing the observance of a local planning scheme. Section 77 of the Planning and Development Act requires a local government in preparing or amending a local planning scheme to have due regard to any State planning policy which affects its district and provides for a State planning policy, with or without modifications, to be incorporated into a local planning scheme.
Section 77(1) and (2) of the Planning and Development Act provides:
77.State planning policies, effect of on scheme
(1)Every local government in preparing or amending a local planning scheme -
(a)is to have due regard to any State planning policy which affects its district; and
(b)may include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme, or a provision however expressed to the same effect.
(2)Where a scheme includes a provision referred to in subsection (1)(b) -
(a)the scheme is to have effect as if the State planning policy, as from time to time amended, or any subsequent policy by which it is repealed under this Act, were set out in full in the scheme; and
(b)the State planning policy is to have effect as part of the scheme subject to any modifications set out in the scheme.
Although, LPS 21 contains a provision of the kind referred to in s 77(1)(b), it refers to the 'Residential Design Codes State Planning Policy 7.3, Volume 2 - Apartments' as 'the R-Codes'.[8] This provision is cl 4.2.1 of LPS 21, which provides:
The R-Codes, modified as set out in clause 4.3, are to be read as part of this Scheme.
[8] The reference to R-Codes reflects cl 1 of sch 2 of the Planning and Development(Local Planning Schemes) Regulations 2015 (WA), which defines the term 'R-Codes' to mean 'the Residential Design Codes prepared by the Western Australian Planning Commission under section 26 of the Act, as amended from time to time'.
The effect of cl 4.2.1 of LPS 21 is that pursuant to s 77(1)(b) and s 77(2) of the Planning and Development Act, subject to the modifications in cl 4.3 of LPS 21, the provisions of the R-Codes, as from time to time amended, are to have effect as part of LPS 21.
The second legislative pathway is by the operation of regulations made pursuant to s 256 and s 257A of the Planning and Development Act.
Sections 256(1) and (5) empower the Governor, on the recommendation of the Minister responsible for the Planning and Development Act, to make regulations prescribing a model provision, being a provision to which s 257A applies; or a deemed provision, being a provision to which s 257B applies.
Model provisions prescribed by regulations may, pursuant to s 257A(3), be excluded from or varied by the Minister when approving a local planning scheme. Unlike model provisions, pursuant to s 257B deemed provisions cannot be excluded from or varied by scheme amendments, and where a deemed provision is inconsistent with another provision of a local planning scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.[9]
[9] Planning and Development Act 2005 (WA) s 257B(3).
Regulation 10(2) of the Planning and Development(Local Planning Schemes) Regulations prescribes that the provisions in Schedule 1 are model provisions, being the provisions to which s 257A applies, and regulation 10(4) provides that the provisions in Schedule 2 are deemed provisions.
Clause 25 of Schedule 1 provides that the 'R-Codes, modified as set out in cl 26, are to be read as part of this Scheme'. Clause 26 of Schedule 1 simply provides, 'To be inserted if exclusions and variations to the R-Codes are to apply. If no exclusions or variations are to apply, insert the words "There are known modifications to the R-Codes".'.
The word 'R-Codes' is not defined in Schedule 1, but is defined in cl 1 of Schedule 2 to mean the Residential Design Codes prepared by the Western Australian Planning Commission (Commission) under s 26 of the Planning and Development Act, as amended from time to time. Section 26 is the provision under which the Commission is empowered, with the approval or on the direction of the Minister, to prepare State planning policies.
The consequence of s 77(2), s 256 and s 257A of the Planning and Development Act, is that the R-Codes if modified (by exclusions or variations) to State Planning Policy 7.3 Residential Design Codes Volume 1 and Volume 2 - Apartments, as from time to time amended,[10] are to be read as part of every local government scheme.

3.3 The relevant provisions of LPS 21 and State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments as modified, and to be read into LPS 21

[10] Section 77(2)(a) and the definition of 'R-Codes' in cl 1 of Schedule 2 mirror the operative effect of s 16(2) of the Interpretation Act 1984 (WA), which provides that a reference in a written law to a provision of a written law shall be construed as a reference to such provision as it may from time to time be amended.

Clause 4.1 of LPS 21 provides that any development of land is to comply with the provisions of the Scheme. As set out above, cl 4.2.1, in compliance with cl 25 of the model provisions in Schedule 1 of the Planning and Development(Local Planning Schemes) Regulations, provides that the R-Codes are to be read as part of LPS 21.
The relevant provisions of LPS 21 regulating height of buildings have not been the subject of a specific amendment to refer to the current provisions of the R-Codes that apply to the size and height of buildings.
Clause 4.3.1 currently states that:
Notwithstanding any other provision of the Scheme, the following variations and exclusions to the R-Codes apply:
…
(h)On land coded R-AC3, Deemed-to-comply provisions 6.1.1 C1 (Building Size) of the R-Codes is varied as per the provisions of clause 4.21.[11]
[11] The effect of cl 4.3.1(h) is not relevant to the disposition of this application.
Clause 4.3.2 currently states:
Building height provisions as specified under Table 3 and Table 4, and Deemed-to-comply provision 5.1.6 C6 and 6.1.2 C2 of the R-Codes do not apply, except for on land coded R-AC3. In all other areas, maximum building height requirements are required to comply with the provisions of clause 4.8 of the Scheme.
Clause 4.8.1 currently states:
A person must not erect any building that -
(a)contains more than two storeys or exceeds a height of 9 metres where land is within 150 metres of the mean high water mark; or
(b)contains more than three stories or exceeds a height of 12 metres where land is more than 150 metres from the mean high water mark, except where otherwise provided for in the Scheme.
Clause 4.8.3 currently states:
In respect to clauses 4.8.1 and 4.8.2 above, the local government, upon receipt of an application for development approval, may approve building heights which exceed those maximum height limitations as specified, subject to the local government being satisfied that the building height is consistent with the relevant assessment criteria specified under Clause 67 of the Deemed Provisions and the performance criteria specified under 5.1.6 (P6) and 6.1.2. (P2) of the
R-Codes.
Clauses 4.3.2, 4.8.1 and 4.8.3 of LPS 21 were most recently amended on 4 August 2017, upon the gazettal of Amendment 1 to LPS 21. At that time, the Residential Design Codes were contained in State Planning Policy 3.1.[12]
[12]
On 24 May 2019, the R-Codes were split into two separate volumes. Volume 1 deals with single houses, grouped dwellings and multiple dwellings in areas coded below R40. Volume 2 - Apartments deals with multiple dwellings in areas coded R40 or greater.
At the time the JDAP made its decision on 23 February 2021, the text of cls 4.3.2, 4.8.1 and 4.8.3 of LPS 21 had not been amended to refer to the relevant current provisions of the R-Codes that apply to heights of buildings. In particular, the text had not been amended to refer to the relevant operative provisions of Volume 2 - Apartments. However, because of the legislative effect of the legislative scheme set out in 3.2 of these reasons, LPS 21 is to be read as amended by Volume 2 - Apartments.
Consequently, the parties agree that cl 4.3.2 of LPS 21 must now be read, and was required to be read by the JDAP, as follows:
Building height provisions as specified under ~~Table 3 and Table 4, and Deemed-to-comply provision 5.1.6 C6 and 6.1.2 C2~~ Table 2.1 and Acceptable Outcome A2.2.1 of Volume 2 of the R-Codes do not apply, except for on land coded R-AC3. In all other areas, maximum building height requirements are required to comply with the provisions of clause 4.8 of the Scheme.
The parties also agree that cl 4.8.3 of LPS 21 must now be read, and was required to be read by the JDAP, as follows:
In respect to clauses 4.8.1 and 4.8.2 above, the local government, upon receipt of an application for development approval, may approve building heights which exceed those maximum height limitations as specified, subject to the local government being satisfied that the building height is consistent with the relevant assessment criteria specified under Clause 67 of the Deemed Provisions and the ~~performance criteria specified under 5.1.6 (P6) and 6.1.2 (P2)~~ Element Objectives O2.2.1 to O2.2.4 of Volume 2 of the R-Codes.

3.4 The relevant provisions of State Planning Policy 7.3 Residential Design Codes Volume 2 - Apartments

Volume 2 - Apartments provides for primary controls to manage the form and scale of new developments, including height of built forms in metres and storeys, and replaces references to Table 3, Table 4 and what were described as deemed to comply provisions of the repealed provisions of the Residential Design Codes, which dealt with the height of built forms.
Clause 2.1 of Volume 2 - Apartments provides in respect of the primary controls table (which deals with building height (storeys) and other matters including setbacks):
Table 2.1 (opposite page) provides default development standards and does not supersede any development standard provided by a local planning scheme…
In the absence of properly adopted local instruments. Table 2.1 applies.
Table 2.1 summarises Acceptable Outcomes for elements 2.2, 2.3, 2.4 and 2.5. Refer to the following pages for supporting content.
The effect of Table 2.1 is that in respect of a site coded R80, the default setting which applies, is a building height of four storeys, unless alternative provisions defined in local planning instruments apply.
Table 2.1 provides for a building height of six storeys for a site coded R-AC3 (being applicable where designated as such by local government in a local planning scheme, activity centre plan, structure plan, local development plan, local planning policy (Mid‑rise urban centres R-AC3)).
Table 2.2 prescribes indicative overall building height in metres by storeys. For example, Table 2.2 prescribes a default building height limit for a building of four storeys to be 15 metres.
The notes that accompany Table 2.2 'Indicative building height' provide that height limits may be varied through local planning instruments in response to local character and context, which may differ to the default requirements in Table 2.1.
The Element Objectives and Acceptable Outcomes, which are referred to in the notes that accompany Table 2.1 and Table 2.2, are as follows:
Element Objectives
Development is to achieve the following Element Objectives
O2.2.1 The height of development responds to the desired Future scale and character of the street and local area, including existing buildings that are unlikely to change.
O2.2.2 The height of buildings within a development responds to changes in topography.
O2.2.3 Development incorporates articulated roof design and/or roof top communal open space where appropriate.
O2.2.4 The height of development recognises the need for daylight and solar access to adjoining and nearby residential development, communal open space and in some cases, public spaces.
Acceptable Outcomes
In Part 2 only. Acceptable Outcomes are default provisions to assist in satisfying the objectives. In order to achieve the Element Objectives, proposals may require additional and/or alternative design solutions in response to the site conditions, streetscape and design approach where specified in the local planning framework (clause 1.2).
A 2.2.1Development complies with the building height limit (storeys) set out in Table 2.1, except where modified by the local planning framework, in which case development complies with the building height limit set out in the applicable local planning instrument.

4.0 Is jurisdictional error established?

The crux of the argument put forward on behalf of the applicants is the provisions of Volume 2 - Apartments that are to be read into LPS 21 in respect of the height of buildings do not apply to a site except to sites coded R-AC3. If this argument is accepted, it necessarily must follow pursuant to cl 4.8.1(a) of LPS 21, JDAP could not approve a development for the erection of a building that contains more than two storeys and exceeds the height of 9 metres where land is within 150 metres of the mean high water mark.
In particular, the applicants argue that cl 4.3.2 of LPS 21 only applies to sites coded R-AC3, the effect of which is that the building height provisions in Volume 2 - Apartments do not apply to the subject land, and those provisions cannot be reintroduced by the discretion conferred by cl 4.8.3 to approve a building height which exceeds the maximum height limitations in cl 4.8.1 of LPS 21.
In support of this argument, it is contended there are three elements to the height restrictions in Volume 2 - Apartments, and they are: first, the height tables in 2.1 and 2.2, second, the Acceptable Outcomes, and third, the Element Objectives. The first and second are addressed in cl 4.3.2 of LPS 21 which apply solely to sites coded R‑AC3, and the third element (the objectives to guide the discretion to approve the height of a particular development), the Element Objectives, is applied in cl 4.8.3, which only applies to sites coded R‑AC3.
The appellant also argues that the Element Objectives were drafted by reference to, and to provide for, the discretion in relation to the heights that were otherwise identified in primary control Table 2.1, and do not engage with the restriction in cl 4.8.1(a) of LPS 21 (prohibiting the erection of any building that contains more than two storeys).
Despite the well-crafted argument put by counsel on behalf of the applicants, the difficulty with the argument is that it fails to give effect to the second sentence in cl 4.3.2 which provides, 'In all other areas, maximum building height requirements are required to comply with the provisions of clause 4.8 of the Scheme' and the operative effect of clause 4.2.1 which provides that the Residential Design Codes 'modified as set out in clause 4.3, are to be read as part of this Scheme'.
As required by the model provisions considered in 3.2 and 3.3 of these reasons, and the operative effect of s 77 of the Town Planning and Development Act, the whole of the Residential Design Codes (Volume 1 and Volume 2) apply as modified. The modifications are variations and exclusions provided for in LPS 21 are set out in cl 4.3.1, together with the specific variations and exclusions that apply to building heights in cl 4.3.2 and cl 4.8.
Consequently, the starting point in construction of the height provisions in LPS 21 is that in the absence of any variation or exclusion of the height provisions in Volume 2 - Apartments, the height provisions of Volume 2 - Apartments apply to the development of land on sites within the scheme map of LPS 21.
The first variation and exclusion of the height restrictions provisions of Volume 2 - Apartments in cl 4.3.2 of LPS 21 is contained in the first sentence, which, at the time JDAP made its decision, read as, 'Building height provisions as specified under Table 2.1 and Acceptable Outcome A 2.2.1 of the R-Codes do not apply, except on land coded R‑AC3'. The effect of this modification is that the Element Objectives of Volume 2 - Apartments are not excluded in respect of any land within the area of LPS 21. This is because Table 2.1 and Acceptable Outcome A 2.2.1 are only excluded in respect of land not coded R-AC3, and the Element Objectives are not excluded in respect of any land.
The second sentence of cl 4.32 of LPS 21 then goes on to provide, 'In all other areas, maximum building height requirements are required to comply with the provisions of clause 4.8 of the Scheme'. Although this provision does not by itself read as a modification of the height restrictions in Volume 2 - Apartments, when it is construed with cl 4.8, it must necessarily be so as there are planning controls relating to heights that are provided for in cl 4.8, which is a general provision that applies to land in the scheme map of LPS 21.
Without reading cl 4.8 together with cl 4.3.2, the effect of cl 4.3.2 is that except for land coded R-AC3 all of the height restrictions in Volume 2 - Apartments apply to land within the scheme area of LPS 21, which would include the primary controls table in Table 2.1, the indicative building height in Table 2.2, the Element Objectives and the Acceptable Outcomes.
However, cl 4.8.1 provides, in effect, a default building height for two categories of land: land that is within 150 metres of the mean high water mark and land that is more than 150 metres from the mean high water mark.
Clause 4.8.2 provides for a discretionary category where the local government may grant approval for the development of a building containing more than two or three storeys, as the case may be, provided that the additional storey or storeys are of the nature of a basement or similar structure and that they do not protrude more than one metre above finished ground level at the perimeter of the building, which clause has no application in this matter.
Clause 4.8.3 confers an additional discretion on the decision-maker to depart from the default maximum building height limitations in cl 4.8.1, subject to the local government (or in this matter JDAP) 'being satisfied that the building height is consistent with the relevant assessment criteria specified under Clause 67 of the Deemed Provisions and the Element Objectives O2.2.1 to O2.2.4 of Volume 2 of the R‑Codes'. There is no inconsistency between cl 4.3.2 and cl 4.8.3 because the Element Objectives are not excluded in respect of any land within the area covered by LPS 21.
The Element Objectives set out the criteria to be applied for the exercise of discretion to exceed the default maximum building height limitations in cl 4.8.1, pursuant to cl 4.8.3. For example, when considering the Element Objective in O2.2.1 in exercising the discretion, the decision-maker is required by cl 4.8.3 to be satisfied that the height of development is 'consistent with' the objective of responding to the desired future scale and character of the street and local area, including existing buildings that are unlikely to change.
The operative effect of cl 4.8.1 and 4.8.1(a) is that the default building height of the subject land is two storeys, and the primary controls default building heights in Table 2.1 of Volume 2 - Apartments do not apply,[13] but JDAP, when it considered whether to approve the development, was conferred with a discretion to approve a building height that exceeded the building default height in cl 4.8.1 if satisfied that the building height was consistent with cl 67 of the Deemed Provisions,[14] and the Element Objectives.
[13] It is arguable that Table 2.2 also does not apply. However, I have made no finding in this regard as this was not an issue in this matter.
[14] No issue arises in this matter in respect of the requirement that the building height be consistent with the relevant assessment criteria specified under cl 67 of the Deemed Provisions.
The effect of cl 4.3.2 is that cl 4.8.3 does not apply to land within LPS 21 that is coded R-AC3. In respect of sites coded R-AC3 the height of any building is required to be determined by the building height provisions in cl 2 of Volume 2 - Apartments. This construction is supported by the first sentence in cl 4.8.9, which provides, 'For land in the Regional Centre, Centre and Local Centre zones where a residential density coding has been designated, the height of any building shall not exceed the height limits identified in the Residential Design Codes'. It is noted that in the Scheme Map that land coded R‑AC 3 is zoned Regional Centre. Consequently, when cl 4.8.1, cl 4.8.3 and cl 4.8.9 are read together, the discretion conferred by cl 4.8.3 does not apply to sites coded R-AC3.
For these reasons, no jurisdictional error arises in the decision of the JDAP to approve the development, and the application should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Smith
5 NOVEMBER 2021

Affidavit of Alexander Mark McCarney McGlue, affirmed on 6 August 2021, par 9, and Annexure
AMG‑1.