Town of Cottesloe v Multiplex (Marine Parade) Pty Ltd

[2007] WASCA 113

TOWN OF COTTESLOE -v- MULTIPLEX (MARINE PARADE) PTY LTD [2007] WASCA 113

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 113
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:46/2006	Heard:	12 MARCH 2007
Coram:	STEYTLER P ROBERTS-SMITH JA BUSS JA	Delivered:	29/05/07
No of pages:	31	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed
Category:	A
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Parties:	TOWN OF COTTESLOE MULTIPLEX (MARINE PARADE) PTY LTD
Catchwords:	Town planning Preliminary issue Whether power of Council to consent to development of place listed for heritage purposes under town planning scheme includes power to vary development requirements or standards contained in town planning scheme Interpretation of Town of Cottesloe Town Planning Scheme No 2 Whether obligation to obtain written consent under cl 6.2.1 is separate and distinct from obligation to obtain development approval under Pt VII Factors relevant to the giving or refusing of written consent under cl 6.2.1 Whether cl 6.2.3 confers on the Council a dispensing power Appeal Leave to appeal from decision of State Administrative Tribunal under State Administrative Tribunal Act 2004 (WA) s 105 Test to be applied in determining whether leave should be granted
Legislation:	Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4 Planning and Development Act 2005 (WA), s 68(1) State Administrative Tribunal Act 2004 (WA), s 105 Town of Cottesloe Town Planning Scheme No 2 Town Planning and Development Act 1928 (WA) (repealed), s 2(1), s 7 Town Planning Regulations 1967 (WA), cl 7.5 Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148
Case References:	Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TOWN OF COTTESLOE -v- MULTIPLEX (MARINE PARADE) PTY LTD [2007] WASCA 113 CORAM : STEYTLER P

ROBERTS-SMITH JA
BUSS JA

HEARD : 12 MARCH 2007 DELIVERED : 29 MAY 2007 FILE NO/S : CACV 46 of 2006 BETWEEN : TOWN OF COTTESLOE

Appellant

AND

MULTIPLEX (MARINE PARADE) PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : JUSTICE M L BARKER (PRESIDENT)

Citation : MULTIPLEX MARINE PARADE PTY LTD and TOWN OF COTTESLOE [2005] WASAT 159

File No : RD 350 of 2005

(Page 2)

Catchwords:

Town planning - Preliminary issue - Whether power of Council to consent to development of place listed for heritage purposes under town planning scheme includes power to vary development requirements or standards contained in town planning scheme - Interpretation of Town of Cottesloe Town Planning Scheme No 2 - Whether obligation to obtain written consent under cl 6.2.1 is separate and distinct from obligation to obtain development approval under Pt VII - Factors relevant to the giving or refusing of written consent under cl 6.2.1 - Whether cl 6.2.3 confers on the Council a dispensing power

Appeal - Leave to appeal from decision of State Administrative Tribunal under State Administrative Tribunal Act 2004 (WA) s 105 - Test to be applied in determining whether leave should be granted

Legislation:

Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4

Planning and Development Act 2005 (WA), s 68(1)
State Administrative Tribunal Act 2004 (WA), s 105
Town of Cottesloe Town Planning Scheme No 2
Town Planning and Development Act 1928 (WA) (repealed), s 2(1), s 7
Town Planning Regulations 1967 (WA), cl 7.5
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148

Result:

Leave to appeal granted

Appeal allowed

Category: A

(Page 3)

Representation:

Counsel:

Appellant : Mr M J McCusker QC & Mr J W C Skinner
Respondent : Mr C L Zelestis QC & Dr J T Schoombee

Solicitors:

Appellant : Jackson McDonald
Respondent : Hardy Bowen

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

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285


(Page 4)

1 STEYTLER P: I agree with Buss JA.

2 ROBERTS-SMITH JA: I agree with Buss JA.

3 BUSS JA: On 22 December 2004, the Council of the appellant ("the Town of Cottesloe") refused an application by the respondent ("Multiplex") for approval to redevelop the Cottesloe Beach Hotel at lot 39, Marine Parade, Cottesloe.

4 By application dated 18 February 2005, Multiplex applied to the State Administrative Tribunal ("the Tribunal") to review the Council's decision.

The reasons for the Council of the Town of Cottesloe's decision to refuse Multiplex's application

5 Multiplex's application for approval was made under the Town of Cottesloe Town Planning Scheme No 2 ("TPS 2").

6 The Council of the Town of Cottesloe gave reasons for its decision to refuse Multiplex's application, as follows:

"(1) The proposal manifestly exceeds the statutory height requirements under TPS 2;

(2) Would unduly affect views to and from Cottesloe beach;

(3) The proposal manifestly overshadows the beach and neighbouring properties, and this is significantly more than would be the case if the proposal did not exceed 12 metres;

(4) Would have a detrimental impact on views from surrounding properties;

(5) Would negatively affect the adjoining properties and the streetscape due to the proposed building height and bulk;

(6) The proposal manifestly fails to conform with the parking standards in TPS 2;

(7) The proposal manifestly exceeds the plot ratio standards in TPS 2;

(Page 5)

(8) The proposal manifestly exceeds the site coverage standards in TPS 2;

(9) The preservation of the façade does not warrant the manifestly excessive concessions sought by [Multiplex];

(10) The amenity of the neighbouring area would be unreasonably diminished and the area's orderly and proper planning negatively impacted, if such concessions or variations were granted;

(11) The adverse affect on the Norfolk Pines in John Street;

(12) Does not satisfy the requirements of the Western Australian Planning Commission in terms of a variety of short term accommodation;

(13) The manifestly excessive concessions or variations to the factors set out above are not sufficiently offset in terms of a reduction in:


a) anti-social behaviour associated with the removal of the existing beer garden;

b) the existing lack of on-site parking for the site;

c) any potential contribution to tourism and hospitality facilities in the area;

d) any conformity with aspects of the Council's Beachfront Development Objectives; and

e) any potential cash in lieu of car parking."

The preliminary issue before the Tribunal

7 The Tribunal (constituted by the President, Barker J) heard and determined a preliminary issue, namely, whether the Council of the Town of Cottesloe has power to vary development requirements or standards set out in TPS 2 to enable it to approve Multiplex's application.

8 The Tribunal, at [11] of its reasons, stated the preliminary issue, with greater particularity, as follows:

" … the preliminary issue raised is whether, under TPS 2, it is within the power of Town of Cottesloe council to approve

(Page 6)

Multiplex's application in circumstances where, on the face of Multiplex's proposal, the development would fail to meet plot ratio, site coverage, height and building boundary standards or requirements laid down by TPS 2."

9 The Tribunal decided that "in appropriate circumstances" the Council has power under Pt VI of TPS 2 to vary or "effectively to vary" the development requirements and standards in TPS 2.

Application for leave to appeal

10 The Town of Cottesloe has made application to this Court under s 105(1) of the State Administrative Tribunal Act 2004 (WA) for leave to appeal from the Tribunal's decision.

11 Section 105(1) provides:

"A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal."

The term "decision", in the context of a decision of the Tribunal, is defined in s 3(1) to include an order, direction or determination of the Tribunal. By s 105(2), the appeal can only be brought on a question of law. Section 105(3) provides, relevantly, that the appeal lies to this Court if the decision was made by a judicial member.

12 On 20 June 2006, Pullin JA ordered, relevantly, that the application for leave to appeal be heard together with the appeal. At the hearing before this Court, Multiplex did not oppose the grant of leave.

13 The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave.

14 In Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, Phillips JA (with whom Tadgell and Batt JJA agreed) enunciated guidelines for determining whether to grant leave to appeal under s 148 of the VictorianCivil and Administrative Tribunal Act 1998 (Vic). The provisions of s 148 are not materially different from the provisions of s 105(1) and (2) of the Western Australian Act. His Honour said, at 337 [16]:

"When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is

(Page 7)

relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on the question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible."

Compare, in the context of the principles to be applied in determining whether leave to appeal should be granted from an interlocutory judgment or order, the observations in Wilson v Metaxas [1989] WAR 285 at 294 and The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.

15 In my opinion, the guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls should be taken into account in considering whether to grant leave under s 105(1) of the State Administrative Tribunal Act. It must be emphasised, however, that those guidelines are not rigid or exhaustive, and leave should be granted if, in all the circumstances, a grant of leave is in the interests of justice. See Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 at [14] - [18].

The relevant provisions of TPS 2

16 The relevant provisions of TPS 2 are these:

(a) By cl 1.4:

"The intent of this Scheme is to direct and control the development of the Scheme Area (hereinafter referred to as the District) in such a way as shall promote and safeguard the health, safety and convenience, economic and general welfare of its inhabitants and the amenities of every part of the District."

(b) Clause 1.8 provides that, subject to the provisions of the Town Planning and Development Act 1928 (WA) (repealed), any regulations made under that Act, and Pt IV of TPS 2:

(Page 8)

"no person shall depart or permit or suffer any departure from the requirements and provisions of [this] Scheme, nor shall any person use or permit the use of any land or building or undertake to permit any new work if the use, new work, reconstruction, alteration or modification, does not conform with [this] Scheme or would tend to delay the effective operation of [this] Scheme."

(c) TPS 2 distinguishes between reserved land and zoned land.

(d) Part II contains specific provisions with respect to reserved land and its development.

(e) In Pt III there are specific provisions concerning zoned land and its development. The zones within the Town of Cottesloe's local government district include a "Hotel" zone. Hotels are a permitted use in the Hotel zone, are not permitted within the Special Development Zone unless special approval is granted by the Council, and are not permitted in any of the other zones.

(f) Clause 3.4.5 provides:


"The intention of the Hotel Zone is to control the use of hotels within the Scheme Area and to guide the further development or redevelopment of land within the Zone.

(a) Development Applications

In its consideration of applications to commence development the Council shall have regard to -


• the preservation of the foreshore as a primary marine recreation and tourist attraction where land within the Zone is adjacent to the foreshore;

• the social consequences of the effect of the size of bars, the number of patrons, the type of entertainment, the hours of operation, the effect of car parking and

(Page 9)

other related matters on the adjacent area that is essentially of a quiet residential nature;

• the integration of parking areas and vehicular access thereto, with total land usage so as to secure the most convenient, safe and efficient use of land;

• the traffic impact of any development;

• the preservation of privacy, views and quiet in nearby residential developments and areas;

• the effect of shadow on the foreshore and neighbouring properties;

• the effect of a development to impede or accelerate airflows;

• the amenity provisions and policies contained in Part V General Provisions - of this Scheme.

(b) Development Standards

(i) No land shall be built upon so as to exceed a plot ratio of 1.0 or a site coverage of 0.5.

(ii) Car parking spaces shall be provided in accordance with the requirements of Table 2 - Vehicle Parking Requirements of the Scheme Text. As a general policy no more than one level of parking shall be placed directly above another level.

(iii) The Council may allow parts of a building within the Zone to be built up to street boundaries, provided that the part of the building is not higher than 6 metres above natural ground level.

(iv) Council may require greater setbacks to other boundaries having considered the

(Page 10)

zoning and current use of adjoining properties.

(v) No hotel or related building shall be constructed so that it exceeds -

(a) a height of 12 metres. For the purpose of this development 'height' means the vertical measurements taken between any point adjacent to the area occupied by the building and the top most vertical point of the roof, excluding minor vertical projections such as chimneys and vent pipes;

(b) three storeys inclusive of above ground parking decks; or

(c) excepting the Eric Street frontage of lot 2, Cnr Eric Street and Marine Parade, 2 storeys adjacent to or opposite residential development."

(g) Part IV is concerned with non-conforming use of land.

(h) Part V contains various general provisions with respect to land within the Town of Cottesloe's local government district.

(i) Clause 5.1.1 provides, relevantly, in relation to building height:


"(a) General Policy

Council's general policy for development within the district favours low rise development of no more than 2 storeys to maintain privacy, views and general amenity notwithstanding that Council may consider the circumstances and merits of each case in terms of the amenity and development control provisions of this Scheme.

(Page 11)

In exercising height control policies Council willnot regard as a storey undercroft space designed and used for a lift shaft, stairway, meter room, bathroom, shower room, laundry, water closet, other sanitary compartments, cellar, corridor, hallway, lobby, the parking of vehicles or any storeroom without windows or any workshop appurtenant to a car parking area where that space is not higher than 1 metre above the footpath level measured at the centre of the site along the boundary to which the space has frontage or where that space is below the natural ground level measured at the centre of the site as determined by Council.

(b) Specific Policy

(i) Foreshore Centre Zone - …

(ii) Residential Zone - …

(iii) Hotel Zone - Refer to sub-clause 3.4.5(b)(v).

(c) Measurement of Building Height

… "

(j) Clause 5.1.2(b) provides that, notwithstanding the specific provisions of TPS 2, in considering a proposed development the Council shall have regard to, and may impose conditions relating to:

"the need for preservation of existing trees or areas or buildings of architectural or historical interest;"

(k) Part VI is headed "Conservation and Preservation of Places of Natural Beauty and Historic Buildings and Objects of Historic or Scientific Interest. It comprises cls 6.1 - 6.4.

(l) Clause 6.1.1 provides:

(Page 12)

"The Council considers that the places of natural beauty, and historic buildings, and objects of historic or scientific interest listed in Sch 1 should be conserved and preserved."

Clauses 6.1.2 and 6.1.3 provide for the amendment of TPS 2 for the purpose of adding or deleting a place, building or object to or from Sch 1.

(m) Clause 6.2 provides:


"6.2.1 No person shall without the consent in writing of the Council commence or carry out or permit or suffer the commencement or carrying out of any development on in or in relation to any First Schedule place, building or object and without in any way limiting the generality of the foregoing shall not:

(a) clear, excavate or fill any land;

(b) fell, remove, kill or irreparably damage any tree;

(c) erect any fence;

(d) commence or carry out any renovation, modification, refitting, decoration or demolition of any building;

(e) alter or remove any building or object or any part thereof.


6.2.2 The provisions of this sub-clause shall not affect any obligation imposed by other provisions of this text or by the Metropolitan Region Scheme to apply for and obtain the approval of the Council or of the State Planning Commission prior to the commencement or carrying out of any development, and the written consent of the Council under this subclause is required in addition to any such approval to commence or carry out development.

(Page 13)

6.2.3 If the Council decides to give its written consent to the commencement or carrying out of any development or other work referred to in paragraph 6.2.1, the Council may give that written consent notwithstanding that the development or work involved does not comply with the Residential Planning Codes or with any requirement or standard specified in or arising out of this Text.

6.2.4 The Council when considering an application for its consent in writing pursuant to the provisions of paragraph 6.2.1 may -


(a) give its consent in writing with or without conditions and limit the time for which the consent remains valid prior to completion or substantial commencement of the development or other work; or

(b) refuse to give its consent in writing."

(n) Clause 6.3 empowers the Council to purchase or resume land on or in which any place, building or object listed in Sch 1 is situated for the purpose of preserving the place, building or object in question. By cl 6.4, the Council may enter into agreements with an owner or occupier of land on or in which any such place, building or object is situated, and may also enter into agreements with various public or statutory entities or bodies, for the purpose of ensuring the preservation or conservation of any such place, building or object.

(o) Part VII relates, amongst other things, to the requirement to obtain the Council's approval to commence development on land within its local government district. The provisions of Pt VII apply to reserved land and zoned land.

(p) Clause 7.1.1 provides:


"In addition to a building licence the Council's approval to commence development is required for any development on or partly on any lot zoned

(Page 14)

or reserved under [this] Scheme except the carrying out of any works, on, in or under a street or road by a public authority acting pursuant to the provisions of any statute.

Subject to this exception, no person shall commence or carry out any development unless Council approval has first been obtained."

(q) Clause 7.1.2 provides:

"In addition to the requirements of the Metropolitan Region Scheme any application for approval to commence development, including the commencement, carrying out or change of a use on the land, shall be made in the form prescribed at Appendix III. The application shall be submitted to the Council in duplicate together with such plans and elevations and other information reasonably required by the Council. All applications shall be endorsed by the owner of the property or be accompanied by the owner's written consent. Details to be included on plans, elevations and other information include the following:

…"


(r) Clauses 7.1.4, 7.1.5 and 7.1.6 make provision with respect to the advertising of applications under cl 7.1 to commence development.

(s) Schedule 1 to TPS 2, which is headed "Places of Natural Beauty and Historic Buildings and Objects of Historical Interest" includes, as items 26 and 27, the following:

(Page 15)

NAME	LOCATION	DESCRIPTION
26.	Norfolk Island Pines	Forrest Street from Marine Pde to Marmion Street; John Street; Broome Street from Forrest Street to Napier Street and Reserve 3235 to Grant Street; Cottesloe main beach	Avenues and stands of tall, mature, Norfolk Island pines, some planted circa 1905
27.	Façade, Cottesloe Beach Hotel	No 104, Lot 39 Marine Pde, Cottesloe	Two storey rendered façade constructed circa 1937

(t) Schedule 2 to TPS 2 defines various terms and expressions. The term "Development" bears the meaning which is ascribed to that term in the Town Planning and Development Act. The term "Hotel" is defined to mean land and buildings providing accommodation for the public the subject of a hotel licence granted under the Liquor Act 1970 (WA) (repealed).

17 At the material time, s 2(1) of the Town Planning and Development Act defined "development" to mean:

"the development or use of any land, including any demolition, erection, construction, alteration of or addition to any building or structure on the land and the carrying out on the land of any excavation or other works and, in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act applies, also includes any act or thing that -

(a) is likely to change the character of that place or the external appearance of any building; or

(b) would constitute an irreversible alteration of the fabric of any building;"

(Page 16)

18 TPS 2 does not confer a general power on the Council to dispense with any development requirements or standards in the Scheme.

The status under TPS 2 of lot 37 Marine Parade, Cottesloe

19 At all material times, lot 37 Marine Parade, Cottesloe, has been within the Hotel zone of TPS 2.

20 The Town of Cottesloe conceded, solely for the purposes of the determination of the preliminary issue, that Multiplex's proposed development is "on in or in relation to" the façade of the Cottesloe Beach Hotel and the Norfolk Island pines, for the purposes of cl 6.2.1 of, and items 26 and 27 of Sch 1 to, TPS 2.

21 The Council appears to have dealt with the proposed development on the basis that it falls within the use class of "Hotel", as defined in TPS 2. Multiplex accepted, for the purposes of the determination of the preliminary issue, that the proposed development should be characterised as falling within that use class.

The legislative status of TPS 2

22 TPS 2 was approved by the Minister under s 7(2)(a) of the Town Planning and Development Act. On 23 December 1988, it was published in the Gazette.

23 By s 7(3) of the Town Planning and Development Act, upon TPS 2 being approved by the Minister and published in the Gazette, it had full force and effect as if it had been enacted by that Act.

24 TPS 2 is "subsidiary legislation" and a "written law", as defined in s 5 of the Interpretation Act 1984 (WA).

25 On 9 April 2006, the Town Planning and Development Act was repealed by s 4 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA). By s 68(1) of the Planning and Development Act 2005 (WA), however, TPS 2 continues in force under the Planning and Development Act and has effect as if enacted by that Act.

The Tribunal's reasoning

26 The Tribunal concluded, at [107] - [108], that:

(a) in an appropriate case, where a proposed development involves development "on in or in relation to any First

(Page 17)

Schedule place, building or object", the Council of the Town of Cottesloe is empowered by cl 6.2.3 of TPS 2 to grant its written consent to the proposed development, notwithstanding that the development or work involved does not comply with an otherwise relevant requirement or standard specified in or arising out of TPS 2; and

(b) where written consent is given under Pt VI of TPS 2 (which includes, relevantly, cls 6.1 and 6.2), in circumstances where an applicant has sought the Council's approval to commence development under cl 7.1.1 of TPS 2 in respect of the same proposed development and grants that approval at the same time as it gives its written consent under cl 6.2.3, the grant of the written consent under Pt VI either varies or has the legal effect of varying a relevant requirement or standard in or arising out of TPS 2 that would otherwise apply in respect of the proposed development.

27 The Tribunal's reasoning, at [90] - [93], [95] - [99] and [103] - [106], was as follows:

"90 By TPS 2 cl 7.1.1, the commencement of all development within the TPS 2 scheme area must be the subject of Council's approval to commence development.

91 It is possible that some activities or works on or in relation to land may not fall within the concept of 'development' as defined by TPS and the Town Planning and Development Act 1928 (WA). For example, the repainting of an interior room of a building (something that might be considered 'decoration' in terms of TPS 2 cl 6.2.1(d)), or the removal of a light fitting on an internal wall of a building (as envisaged amongst other things by TPS 2 cl 6.2.1(e)) might well not fit within the well-understood concept of 'development', explained earlier.

92 It is also well understood that the requirement of a local government's town planning scheme, such as TPS 2, that a person must obtain a Council's approval to commence development, may be but one of a number of statutory approvals required to permit a particular form of proposed development of land to be implemented. …

(Page 18)

93 In this particular case, TPS 2 also adds a written consent requirement where any development is proposed 'on in or in relation to any First Schedule place, building or object'.

…

95 … by the provisions set out in Pt VI of TPS 2, the maker of TPS 2 must be taken to have intended that the Council should expressly consider and expressly grant its consent in writing to any development, as defined in the Act, and any other activities not so included in that concept but enumerated in cl 6.2.1(a) - (e), if any, that should be undertaken on, in or in relation to an [sic] listed of [sic] place, building or object. That much follows from the express statement in cl 6.2.2 that the written consent of the Council under cl 6.2 is required 'in addition' to any approval to commence or carry out development.

96 It is in this context that one comes to TPS 2 cl 6.2.3. It enables the Council, if it decides to give its written consent, to give that written consent 'notwithstanding that the development or work involved does not comply with the Residential Planning Codes or with any requirement or standard specified in or arising out of this Text.'

97 In my view, cl 6.2.3 in its express terms recognises that the Pt VI written consent power will be exercised having regard to all relevant requirements of TPS 2, including those in parts of TPS 2 other than Pt VI, that would ordinarily apply to a development of the type proposed.

98 Because the Council is empowered to give its written consent to a development on, in or in relation to a listed place, building or object 'notwithstanding' provisions of TPS 2 that lay down basic development rules, it may be suggested that the Council would not ordinarily consider granting its written consent under Pt VI if to do so would result in non-compliance with the Residential Planning Codes or with any requirement or standard specified in or arising out of the TPS 2 text. This makes obvious sense as a matter of good public administration and town planning.

(Page 19)

99 It follows, in my view, that because the Council is specifically empowered by cl 6.2.3 to grant its consent notwithstanding that a proposed development does not comply with a relevant Code provision or requirement or standard specified in or arising out of the text, the grant of written consent under cl 6.2.1, in circumstances where Council has been invited to consider at the same time an application for approval to commence that same proposed development under cl 7.1.1, either itself varies or has the legal effect of varying a relevant Code provision, or requirement or standard specified in the text that would otherwise apply in respect of the proposed development.

…

103 This understanding of the way Pt VI of TPS 2 fits into the broader scheme of development control in TPS 2 and [sic] makes good policy sense so far as town planning and heritage control is concerned. For example, if on land stood a place that was listed in Sch 1 by reason of its historic value as a residence, and that land fell within a TPS 2 zone that encouraged forms of non-residential development that would in all likelihood be at odds with the conservation or preservation of that place in its undeveloped form, it would appear entirely inconsistent [sic] with the scheme of regulation contained in TPS 2 that a person could apply to the Council for approval to redevelop that place in a manner which, for argument's sake, retained the historic significance of the place in substance, but in other respects redeveloped the place in a manner consistent [sic] with the intent of that zone as expressed in TPS 2. To ensure the proper conservation or preservation of the place of historic significance and to recognise the competing development policies expressed in TPS 2 for land in that zone, the applicant might propose and the Council might expressly approve and consent to the redevelopment, notwithstanding that the proposed redevelopment of a portion of the place involved non-compliance with plot ratio, site coverage and height restrictions imposed by specific provisions of TPS 2. In such circumstances, the decision of the Council to permit the redevelopment of that listed place notwithstanding such non-compliance would necessarily

(Page 20)

mean that the Council consented to the removal of any otherwise limiting or restricting requirement or standard specified in the TPS 2 Text.

104 If the position were to be otherwise, then, in my view, the grant of the written consent by the Council pursuant to Pt VI of TPS 2 'notwithstanding that the development or work involved does not comply with the Residential Planning Codes or with any requirement or standard specified in or arising out of this Text' would, in the example just given, be almost meaningless.

105 If the Town's contentions were accepted, an applicant who proposed development of a listed place in the example given, would not only be required to obtain a separate written consent under Pt VI and an approval to commence development under Pt VII of TPS 2, but might never be able to obtain an approval to commence development under Pt VII where the proposed development did not comply with a specific requirement or development standard specified in TPS 2, notwithstanding that the Council had decided, after careful consideration of the Pt VI conservation and preservation objectives of TPS 2, to grant its written consent to the proposed development.

106 On any view, this outcome makes little sense and renders virtually pointless the express power given to the Council in cl 6.2.3 to grant its written consent in respect of the development of a listed place 'notwithstanding' that the proposed development does not comply with a requirement or a standard specified in TPS 2."

Grounds of appeal

28 The grounds of appeal are these:

"1. The … Tribunal erred as a matter of law in finding that the written consent power under Part VI of [TPS 2] is to be exercised having regard to all relevant requirements of TPS 2. It ought to have been found that the written consent power under Part VI of TPS 2 is to be exercised having regard simply to whether the proposal requiring such written consent conserves or preserves the

(Page 21)

applicable place or object listed in the First Schedule of TPS 2.

2. The … Tribunal erred as a matter of law in finding that a grant of written consent for a proposed development under Part VI of TPS 2 either itself varies or has the legal effect of varying a development requirement or standard specified in the provisions of TPS 2 that would otherwise apply in respect of the proposed development, for the purpose of granting planning approval under Part VII of TPS 2. It ought to have been found that a grant of written consent under Part VI of TPS 2 has no effect on any development requirement or standard specified in the provisions of [TPS 2] for the purpose of granting planning approval under Part VII of TPS 2.

3. The … Tribunal erred as a matter of law in finding that the application of the provisions of Part VI of TPS 2 contended for the Appellant would render the provisions of cl.6.2.3 almost meaningless or virtually pointless."

The proper approach to statutory interpretation

29 The proper approach to statutory interpretation, including the manner in which conflicting statutory provisions should be reconciled so far as is possible, was considered by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. McHugh, Gummow, Kirby and Hayne JJ said, at 381 - 382 [69] - [71]:

"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 [See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ]. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' [Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, 'in the context of the legislation read as a whole']. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is

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constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed [Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J].

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J]. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other' [Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision [The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ]. In The Commonwealth v Baume [(1905) 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1688) 1 Show KB 106 [89 ER 480]] to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent'."

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Multiplex's submissions

30 Senior counsel for Multiplex argued before this Court that there were two critical issues to be considered. First, where a person applies for the Council's written consent under cl 6.2.1 to the commencement or carrying out of a proposed development on, in or in relation to a place, building or object listed in Sch 1, and the person also applies for the Council's approval under Pt VII to commence that proposed development, is the Council required to make a single decision which has two legal expressions, one being the giving or refusing of consent under cl 6.2.1 and the other being the giving or refusing of approval under Pt VII? Secondly, where a proposed development does not comply with a development requirement or standard specified in TPS 2 (for example, a limitation upon the height of the proposed development), does cl 6.2.3 confer upon the Council a dispensing power with respect to the non-compliance?

31 It was submitted, on behalf of Multiplex, that where the Council receives an application concerning a proposed development on, in or in relation to any place, building or object listed in Sch 1, the Council must have regard to relevant considerations arising under Pt VI (in addition to other relevant considerations arising under Pt VII and other provisions of TPS 2), but the Council is required to make a single decision, namely, whether to permit or refuse to permit the proposed development.

32 It was also submitted, on behalf of Multiplex, that the purpose embodied in Pt VI is the enhancement of the places, buildings and objects listed in Sch 1. Senior counsel for Multiplex argued that preservation and conservation connote the carrying out of activities on, in or in relation to such places, buildings and objects, as necessary from time to time, in order to maintain and enhance the locations or structures in question. It was submitted that the object of Pt VI was to preserve and conserve in an active sense, as distinct from mere non-interference. According to senior counsel for Multiplex, this purpose or object is facilitated by a power to grant dispensations or concessions where a proposed development does not comply with requirements or standards set out elsewhere in TPS 2. It was contended that cl 6.2.3 contains a dispensing power which may be exercised where a dispensation or concession would be conducive to preserving or conserving the relevant place, building or object listed in Sch 1.

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The merits of the grounds of appeal

33 Clauses 6.1.2 and 6.1.3 of TPS 2 refer to places, buildings and objects listed in Sch 1 being "protected by the conservation and preservation provisions of [Pt VI]".

34 Clause 6.2.1 contains the primary protection which Pt VI gives to places, buildings and objects listed in Sch 1. By cl 6.2.1, the commencement or carrying out of any development (including, relevantly, the commencement or carrying out of any renovation, modification, refitting, decoration or demolition of a building, or any part of a building) on, in or in relation to any such place, building or object is prohibited without the Council's written consent.

35 Part VI contemplates that a person may apply for the Council's written consent under cl 6.2.1, but a form of application is not prescribed.

36 If a person applies for the Council's written consent under cl 6.2.1, the Council may give or refuse its consent. Clause 6.2.4 authorises the Council to give its consent with or without conditions, and to impose a time limit for the completion or substantial commencement of the relevant development.

37 Part VI does not expressly enumerate the matters which the Council is entitled or obliged to take into account in deciding whether to give its written consent under cl 6.2.1. The factors which the Council is entitled or obliged to consider are to be ascertained by construing Pt VI and the other provisions of TPS 2. In particular, they are to be determined by implication from the subject matter, scope and purpose of Pt VI and the other provisions of TPS 2. As Mason J noted in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40:

"In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [(1979) 144 CLR 45, pp 49-50], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [(1937) 56 CLR 746, pp 757 - 758], and Water Conservation

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and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492], at 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."

38 Clause 6.2.2 states, significantly, that:

(a) where a person is obliged to obtain the Council's written consent under cl 6.2.1 to the commencement or carrying out of a development, that obligation does not affect any other obligation imposed on the person under TPS 2 or the Metropolitan Region Scheme to apply for and obtain the approval of the Council or the State Planning Commission (now the Western Australian Planning Commission) before commencing or carrying out that development; and

(b) any other obligation to obtain any such approval is additional to the obligation to obtain the Council's written consent under cl 6.2.1.

Accordingly, where a person is obliged to obtain the Council's written consent under cl 6.2.1 to the commencement or carrying out of a development, the person is also obliged, before commencing or carrying out that development, to make application under Pt VII of TPS 2 for the Council's approval to commence development.

39 In my opinion, the obligation under cl 6.2.1 to obtain the Council's written consent, and the obligation under Pt VII to obtain the Council's approval to commence development, before a person commences or carries out a development on, in or in relation to a place, building or object listed in Sch 1, are separate and distinct obligations. A person is entitled, but not obliged, to make application contemporaneously for written consent under cl 6.2.1 and for approval to commencement development under Pt VII. Alternatively, a person may apply for written consent under cl 6.2.1 without also applying for or having obtained approval to commence development under Pt VII. Alternatively, a person may apply for approval to commence development under Pt VII without also applying for or having obtained written consent under cl 6.2.1. Each of Pt VI and Pt VII contains a different regime for the regulation of
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development on, in or in relation to a place, building or object listed in Sch 1, and the factors which the Council is entitled or obliged to take into account are not identical.

40 Part VII applies, of course, to any proposed development on any reserved land or zoned land within the local government district of the Town of Cottesloe. In other words, Pt VII applies not only to a proposed development on, in or in relation to any place, building or object listed in Sch 1, but to any application to commence development on any reserved land or zoned land. Where an application is made under Pt VII for approval to commence development in respect of land within the Hotel zone (including any land which is affected by Pt VI and Sch 1), the factors which the Council is obliged to consider include, relevantly, those specified in cls 3.4.5 and 5.1.2. In addition, the Council is entitled to take into account any proper planning considerations relating to the proposed development which are not inconsistent with the provisions of TPS 2.

41 The apparent rationale for the inclusion of Pt VI in TPS 2 is the Council's concern to ensure that:

(a) places of natural beauty, historic buildings, and objects of historic or scientific interest, within its local government district, are safeguarded from harm or deterioration;

(b) any alteration or addition to, or affecting, any relevant place, building or object will not materially diminish or prejudice its status; and

(c) any new structure or improvement or any other development on, in or in relation to any such place, building or object will not materially diminish or prejudice its status.

The separate and distinct regime embodied in Pt VI ensures that a development to which that Part applies will not be commenced or carried out without the Council having given proper consideration to whether such development would be likely to have a detrimental impact on, for example, the aesthetics, historic character or amenity of the place, building or object in question, and, if so, whether such development should be permitted. The subject matter, scope and apparent purpose of Pt VI indicate that, in deciding whether to give or refuse its written consent under cl 6.2.1, the Council is confined to considering:

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(a) whether the proposed development will detrimentally affect, positively enhance, or have no discernible effect on, the conservation or preservation of the relevant place, building or object as a place of natural beauty, an historic building or an object of historic or scientific interest; and

(b) whether, in the circumstances, the Council should consent to the proposed development.

Other proper planning considerations which are not inconsistent with the provisions of TPS 2 (including, where the proposed development is within the Hotel zone, those enumerated in cls 3.4.5 and 5.1.2), are relevant in considering an application under Pt VII for approval to commence development, but are not relevant in considering an application for written consent under cl 6.2.1.

42 As I have mentioned, Pt VI does not prescribe a form of application where a person applies for the Council's written consent under cl 6.2.1. Pt VI does not require that an application for consent be accompanied by any particular documents or information. An application for consent is not required to be advertised. By contrast, an application under Pt VII for the Council's approval to commence development must be made in a prescribed form and be accompanied by documents and information (including plans and elevations), the contents of which are specified with some particularity. Further, cls 7.1.4 - 7.1.6 require that an application for approval to commence development be advertised, as specified in those provisions, for the purpose of informing third parties of the proposed development and giving them an opportunity to provide written comments on it to the Council.

43 Part VI has practical utility as a regime which is separate and distinct from Pt VII. A person might wish to make an application for the Council's written consent under cl 6.2.1 to a proposed development without contemporaneously making an application under Pt VII for approval to commence that development. For example, a person contemplating the purchase of land which is listed in Sch 1 may require that the Council's written consent under cl 6.2.1 be obtained before he or she unconditionally agrees to purchase the land. Similarly, an owner of land which is listed in Sch 1 may wish to ascertain whether the Council will give its written consent under cl 6.2.1 before embarking upon the more expensive and time-consuming process which Pt VII contemplates with an application for approval to commence development.

44 By cl 6.2.3:

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"If the Council decides to give its written consent to the commencement or carrying out of any development or other work referred to in par 6.2.1, the Council may give that written consent notwithstanding that the development or work involved does not comply with the Residential Planning Codes or with any requirement or standard specified in or arising out of this Text."

45 Clause 6.2.3, in stating that the Council's written consent under cl 6.2.1 may be given notwithstanding that the proposed development does not comply with, relevantly, any requirement or standard specified in or arising out of TPS 2, confirms that a proposed development's compliance or non-compliance with such requirements and standards is not a relevant consideration in deciding whether to give or refuse consent under cl 6.2.1. Clause 6.2.3 is consistent with written consent under cl 6.2.1 being separate and distinct from the obtaining of approval to commence development under Pt VII, and with the factors relevant to the giving or refusing of consent under cl 6.2.1 being circumscribed in the manner I have explained at [41] above. The Council is required to make two independent decisions, one under cl 6.2.1 and the other under Pt VII.

46 Clause 6.2.3 does not confer on the Council a dispensing power. Where:

(a) a person applies for written consent under cl 6.2.1 in respect of a proposed development that does not comply with a requirement or standard specified in TPS 2 (for example, a height limitation);

(b) the person also applies for approval to commence that development under Pt VII; and

(c) the Council gives its written consent under cl 6.2.1,

the Council is not empowered by cl 6.2.3 to grant a dispensation or concession, for the purposes of the application for approval to commence development under Pt VII, to the extent that the proposed development does not comply with the requirement or standard in question. Similarly, if the Council gives its written consent under cl 6.2.1, in the circumstances I have mentioned, the giving of that consent does not vary or have the legal effect of varying the relevant requirement or standard so that the Council may grant approval under Pt VII to the commencement of the proposed development.

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47 The appellant has made out each of the grounds of appeal. For the reasons I have given:

(a) The Council's discretionary power to give its written consent under cl 6.2.1 is not to be exercised "having regard to all relevant requirements of TPS 2, including those in parts of TPS 2 other than Pt VI, that would ordinarily apply to a development of the type proposed", as asserted by the Tribunal at [97].

(b) If the Council gives its written consent under cl 6.2.1 to a proposed development, that consent does not either itself vary or have the legal effect of varying a requirement or standard specified in TPS 2 that would otherwise apply for the purposes of an application for approval to commence development under Pt VII.

(c) The construction of Pt VI and Pt VII which I prefer does not render cl 6.2.3 "almost meaningless" or "virtually pointless", as asserted by the Tribunal at [104] and [106].

48 It may make "good policy sense so far as town planning and heritage control is concerned", as the Tribunal suggested at [103], if the Council, having decided to give its written consent under cl 6.2.1 to a proposed development, were empowered to dispense with or vary, for the purposes of an application to commence development under Pt VII, any requirement or standard specified in or arising out of TPS 2. The provisions of TPS 2 do not, however, on their proper construction, permit such a conclusion. Compare, in this context, the provisions of cl 7.5 of the Model Scheme Text set out in Appendix B to the Town Planning Regulations 1967 (WA). Clause 7.5 provides:

"Where desirable to -

(a) facilitate the conservation of a heritage place entered into the Register of Places under the Heritage of Western Australia Act 1990 or listed in the Heritage List under clause 7.1.1; or

(b) enhance or preserve heritage values in a heritage area designated under clause 7.2.1,

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the local government may vary any site or development requirement specified in the Scheme or the Residential Planning Codes by following the procedures set out in clause 5.5.2."

49 I note that although:

(a) cl 6.2.3 does not confer a dispensing power; and

(b) TPS 2 does not confer a general power on the Council to dispense with any development requirements or standards in the Scheme,

TPS 2 does contain some specific and very limited provisions which enable the Council to grant dispensations and concessions with respect to certain residential developments on sites referred to in cl 5.2.2(e) and listed in Sch 5. Other specific and very limited dispensing powers exist in relation to some requirements for proposed developments in the Town Centre zone (see cl 3.4.2(c)) and the building height of some proposed developments in the Foreshore Centre zone and the Residential zone (see cl 5.1.1(b)(i) and (ii)). My reference to those examples is not intended to be exhaustive. The critical point is, of course, that on my construction of TPS 2, a dispensing power does not exist in relation to applications to commence or carry out proposed developments within the Hotel zone on, in or in relation to any place, building or object listed in Sch 1.

50 In my opinion, the Tribunal, with respect, misconstrued TPS 2. I respectfully disagree with the Tribunal's conclusion, at [107], that the Council is empowered by cl 6.2.3, in an appropriate case, to approve, for the purposes of TPS 2 including Pt VII, an application to commence development on, in or in relation to a place, building or object listed in Sch 1, notwithstanding that the proposed development does not comply with an otherwise relevant requirement or standard specified in or arising out of TPS 2. I also respectfully disagree with the Tribunal's conclusion, at [108], that where an applicant applies for written consent under cl 6.2.1 in respect of a proposed development and also applies for approval to commence that development under Pt VII, and the Council gives its written consent under cl 6.2.1, that consent either varies or has the legal effect of varying any requirements or standards in or arising out of TPS 2 with which the proposed development would otherwise not comply.

Conclusion

51 In the present case, the proper construction of TPS 2 raises a question of law which is of some importance, both generally and as

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between the parties. Also, the grounds of appeal have merit. I would grant leave to appeal and allow the appeal. Counsel should be heard as to the precise form of the orders.