University Of Western Australia and City Of Nedlands
[2009] WASAT 121
•23 JUNE 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: UNIVERSITY OF WESTERN AUSTRALIA and CITY OF NEDLANDS [2009] WASAT 121
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 9 JUNE 2009
DELIVERED : 23 JUNE 2009
FILE NO/S: DR 15 of 2009
DR 17 of 2009
BETWEEN: UNIVERSITY OF WESTERN AUSTRALIA
Applicant
AND
CITY OF NEDLANDS
RespondentWESTERN AUSTRALIAN PLANNING COMMISSION
Intervenor (DR 17 of 2009)
Catchwords:
Town planning Strategic planning Outline Development Plan Preliminary issue Jurisdiction Whether there is a right of review of decision to not approve in principle Outline Development Plan or to not proceed with proposal Whether decision in relation to Outline Development Plan is 'in respect of the exercise of a discretionary power' Development application Bulk earthworks Preliminary issue Whether development application is capable of approval in absence of adopted Outline Development Plan - Need for strategic planning of site involving all stakeholders
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 1.6, cl 3.8, cl 4.1, cl 4.2, cl 5.15.5, cl 6.4, cl 6.5, cl 6.5.1, cl 6.5.4, cl 7.8
Environmental Protection Act 1986 (WA), s 41, s 45(7)
Interpretation Act 1984 (WA), s 56(1)
Metropolitan Region Scheme
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 20(2)(b)
Planning and Development Act 2005 (WA), s 236, s 252(1), s 252(3), Pt 14
Shire of Augusta-Margaret River Town Planning Scheme No 18, cl 3.3.5, cl 8.5
State Administrative Tribunal Act 2004 (WA), s 9(b), s 32(1), s 37(3), s 105
State Planning Commission Act 1985 (WA), s 65
Town Planning and Development Act 1928 (WA), Pt V
Result:
Applicant does not have a right of review in DR 17 of 2009
Development application in DR 15 of 2009 is not capable of approval in the absence of an adopted Outline Development Plan
Applications for review in DR 15 of 2009 and in DR 17 of 2009 dismissed
Category: A
Representation:
Counsel:
Applicant: Mr GR Donaldson SC with Mr MA Etherington
Respondent: Mr CA Slarke
Intervenor (DR 17 of 2009) : Mr RM Mitchell SC with Mr DH Leith
Solicitors:
Applicant: Minter Ellison
Respondent: McLeods
Intervenor (DR 17 of 2009) : State Solicitor's Office
Case(s) referred to in decision(s):
Auswide International Investments Southern River Pty Ltd and City of Gosnells [2007] WASAT 290
Burns and Commissioner of Soil and Land Conservation [2006] WASAT 83
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98
Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129
Pyrford Court Pty Ltd and City of Wanneroo [2004] WATPAT 52
Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76
Swanbourne Estate Development Joint Venture and City of Nedlands [2008] WASAT 274
WA Plantation Resources Pty Ltd and City of Bunbury [2005] WASAT 194
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The University of Western Australia owns a 63.3665 hectare property in Shenton Park which it has sought to plan and develop for the past decade. Most recently, the University of Western Australia lodged an Outline Development Plan and a development application for bulk earthworks with the City of Nedlands under its local planning scheme. The City of Nedlands deferred making a decision in relation to the development application until environmental assessment processes under State and federal laws had been completed. The City of Nedlands did not make any decision in relation to the Outline Development Plan.
The University of Western Australia filed applications for review of what it characterised as the 'deemed refusal' by the City of Nedlands of the Outline Development Plan and the development application. The University of Western Australia subsequently recast its case in relation to the Outline Development Plan, contending that the application was for review of an actual decision not to proceed with the Outline Development Plan, rather than the deemed refusal of the Outline Development Plan.
The City of Nedlands raised the following preliminary issues for determination:
•Whether the University of Western Australia had a right to seek review of any relevant decision of the Council in relation to the Outline Development Plan.
•Whether the development application was capable of approval in the absence of an Outline Development Plan adopted by the Western Australian Planning Commission.
The Tribunal determined that the University of Western Australia did not have a right of review in relation to the Outline Development Plan proceedings and, consequently, that the Tribunal did not have jurisdiction to hear and determine those proceedings. The local planning scheme conferred a right of review on '[a]n applicant for the Council's … approval required by the Scheme who is aggrieved by a decision of the Council in respect of the exercise of a discretionary power by the Council under the Scheme'. However, the University of Western Australia was an applicant not for the Council's approval in relation to the Outline Development Plan required by the scheme, but rather for the approval from the Western Australian Planning Commission in relation to the Outline Development Plan required by the scheme. Furthermore, any decision by the Council in relation to the Outline Development Plan would not be in respect of the exercise of a discretionary power, but rather would be in respect of the exercise of a legislative power.
The Tribunal also determined that it did not have power, in the absence of an Outline Development Plan adopted by the Western Australian Planning Commission, to grant approval to the development application. While the Scheme did not contain an express requirement for prior approval of an Outline Development Plan, there were three textual indications which manifested a clear legislative intention to that effect.
The Tribunal therefore dismissed the University of Western Australia's proceedings.
However, the Tribunal noted that the University and other stakeholders had become embroiled in a quagmire of applications, plans, environmental referrals, environmental assessments, environmental bulletins, environmental appeals, planning appeals/reviews and Ministerial decisions. Extraordinary amounts of public time, effort and money had been expended, and the inconsistent, indeterminate and, apparently, never-ending processes reflected very poor public administration of planning and environmental laws. The Tribunal suggested that the relevant stakeholders should sit down together and strategically and comprehensively determine the development potential of what was obviously a highly unusual, if not unique, Urban and Development zoned site.
Introduction
The University of Western Australia (University) owns two allotments of land at Underwood Avenue, Shenton Park (site). The site has a total area of 63.3655 hectares and is bounded by Randell Street to the south‑west, Brockway Road to the west, Underwood Avenue to the north and Selby Street to the east. The site is situated approximately 5.2 kilometres west of the Perth Central Business District.
The western third of the site, adjacent to Brockway Road, comprises the University Field Station which is used for a variety of agricultural‑based research and educational activities. The eastern two‑thirds of the site comprises bushland, cleared areas and disused animal holding pens.
The site is zoned 'Urban' under the Metropolitan Region Scheme and 'Development' under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme).
To the north of the site across Underwood Avenue is the Floreat residential area and to the east of the site across Selby Street is the Daglish residential area. To the south of the site are various utility and institutional developments, including the Subiaco Waste Water Treatment Plant, the Paraplegic‑Quadriplegic Association of WA Inc and Royal Perth Rehabilitation Hospital. To the west of the site across Brockway Road is the University Sports Park and CSIRO facilities.
The University's attempts to plan and develop the site
The University has owned all but a small part of the site for over a century. For the past decade, the University has sought to plan and develop the site under TPS 2.
In December 1999, the University applied to the Western Australian Planning Commission (Commission) for subdivision approval of the site. Since that time, the University and other relevant stakeholders have become embroiled in a quagmire of applications, plans, environmental referrals, environmental assessments, environmental bulletins, environmental appeals, planning appeals/reviews and Ministerial decisions. I will return to the subject of the quagmire at the end of these reasons.
Most recently, on 6 November 2008, the University lodged the following documents with the City of Nedlands (City or Council):
•an Outline Development Plan (ODP) under cl 3.8 of the Scheme; and
•a development application (DA) under cl 6.1 of the Scheme.
The ODP sets out a proposed planning framework for the site by reference to Precincts A1, A2, B and C. The ODP focuses on Precincts A1 and A2, which are located in the eastern part of the site, and are proposed for residential, public open space and conservation uses. The ODP identifies Precinct B, which is located in the central part of the site, and Precinct C, which substantially comprises the University Field Station in the western part of the site, as future development precincts to be addressed by amendments to the ODP.
The DA proposes bulk earthworks, in the form of clearing, cutting and filling, in the area of Precincts A1 and A2 as depicted in the ODP.
At its meeting held on 9 December 2008, the Council considered a report in which its officers recommended that it should refuse the DA for a number of reasons, including 'because an Outline Development Plan to ensure comprehensive planning of the [site] has not been approved by the City and the [Commission]'.
However, the Council adopted the following alternative resolution from its Planning Committee:
That this matter is referred back until the Federal & State Ministers for the Environment have made a decision on this matter.
The Council minutes record that the reason for the Council's alternative resolution in relation to the DA was that:
Council concurred with the Committee that it was appropriate not to make a decision on this matter until the Federal & State Ministers for the Environment have made a decision on the matter.
Applications for review
On 9 January 2009, the University filed the following applications for review with the Tribunal:
•an application for review under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the 'deemed refusal' of the DA by the Council on '5 January 2009' (DR 15 of 2009 or DA proceedings); and
•an application for review under s 252(1) of the PD Act of the 'deemed refusal' of the ODP by the Council on '5 January 2009' (DR 17 of 2009 or ODP proceedings).
The Commission sought, and was granted, leave to intervene in the ODP proceedings under s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Preliminary issues
The City identified a number of preliminary issues for determination, including:
1)Whether the University has a right to seek review of any relevant decision of the Council in the ODP proceedings.
2)If the answer to the first preliminary issue is 'no', whether the DA is capable of approval in the DA proceedings in the absence of an adopted ODP.
The Tribunal directed that these two preliminary issues should be determined together and that other preliminary issues identified by the City in the DA proceedings should be deferred. This was because third parties, to whom summonses and orders were directed for the production of documents at the request of the University, applied to have the summonses and orders set aside. The Tribunal determined that it was potentially unnecessary to put the third parties and the parties to the proceedings to the time and expense of a hearing in relation to whether the summonses and orders should be set aside, because the two preliminary issues identified above, if decided in favour of the City, would be determinative of both proceedings.
Before addressing the preliminary issues for determination, it is convenient to set out the provisions of the Scheme on which the resolution of those issues turn and to refer to the way in which the University put its case in the ODP proceedings.
Relevant Scheme provisions
As noted earlier, the site is zoned 'Development' under TPS 2. Clause 3.8 relates to the Development zone and states as follows:
3.8.1It is the intention of the Council to ensure that development of land within the Development Zone takes place only after comprehensive planning ensures the maximum possible benefits of urban design and servicing.
3.8.2Any person who wishes to develop land within the Development Zone shall make application to the Council for approval in accordance with Part 6 and shall submit with the application, overall concept plan for all the land in the Development Zone or such part thereof as the Council shall require. The Outline Development Plan shall show:-
(a)the topography of the area;
(b)the existing major road systems;
(c)the location and width of proposed roads;
(d)the approximate location and quantity of shopping, civic and public facilities proposed;
(e)the approximate location of the recreation and open space area proposed;
(f)the population and residential densities proposed including the spatial location of appropriate Residential Planning Code densities;
(g)the basic layout of a sewerage system;
(h)the layout of comprehensive drainage, both land and stormwater;
(i)land holdings adjacent to or in the vicinity of the area the subject of the application;
(j)the development proposed, the method of carrying out the development and the projected times of completion of each stage of development;
(k)such other information as shall be required by the Council.
3.8.3If the Council shall approve the Outline Development Plan in principle it shall submit it to the Town Planning Board.
3.8.4If the Board shall approve the Outline Development Plan in principle Council on behalf of the applicant and at the applicant's expense shall advertise that the Outline Development Plan has been prepared and will be available for public inspection at the offices of the Council inviting submissions in relation to the Outline Development Plan which shall be made to the Town Clerk of the Council. A minimum period of 21 days from the date of the last advertising shall be made available for submissions.
3.8.5The advertisement of the preparation of the Outline Development Plan shall be by notice at weekly intervals for each of three consecutive weeks in a newspaper circulating in the district. The notice shall be of such size as determined by Council.
3.8.6The Council shall consider the submissions, if any, to the Outline Development Plan and may after consultation with the applicant amend the Outline Development Plan after consideration of such submissions.
3.8.7The Council may decide not to proceed with the proposal or may submit the Outline Development Plan so prepared to the Town Planning Board together with the objections and request the Board to adopt the plan submitted as the basis for approval of subdivision and development applications within the area covered by the plan.
Under s 65 of the State Planning Commission Act 1985 (WA) (now repealed) and s 20(2)(b) of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), the reference in cl 3.8 of TPS 2 to the 'Town Planning Board' and to the 'Board' is taken to be a reference to the Commission.
Clause 7.8 of TPS 2 states as follows:
An applicant for the Council's planning approval or other approval required by the Scheme who is aggrieved by a decision of the Council in respect of the exercise of a discretionary power by the Council under the Scheme may appeal under and in accordance with Part V of the Act. [Town Planning and Development Act 1928 (WA)].
Under s 236 of the PD Act, the reference in cl 7.8 of TPS 2 to a right to appeal in accordance with Pt V of the Town Planning and Development Act 1928 (WA) (TPD Act) is taken to be a reference to a right to seek a review by the Tribunal in accordance with Pt 14 of the PD Act.
The University's case in the ODP proceedings
As noted earlier, the application for review in the ODP proceedings was filed on the stated basis that there was a 'deemed refusal' of the ODP on 5 January 2009, that is, 60 days after the submission of the ODP to the Council. The University's detailed written submissions in relation to the preliminary issues were also based on this premise.
However, during the course of his oral submissions, Mr GR Donaldson SC, who appeared with Mr MA Etherington on behalf of the University, abandoned the basis upon which the application for review in the ODP proceedings was commenced and also the arguments presented in the written submissions. Although leave to amend the application was not sought, Mr Donaldson recast the application entirely and argued that it was for the review of an actual decision by the Council made at its meeting on 9 December 2008, rather than a deemed refusal taken to have been made on 5 January 2009.
Mr Donaldson submitted that, at its meeting on 9 December 2008, the Council made one of two alternative decisions, namely:
1)a decision 'not to proceed with the proposal' under cl 3.8.7 of TPS 2; or, alternatively,
2)a decision not to 'approve the [ODP] in principle' under cl 3.8.3 of TPS 2.
Mr Donaldson submitted that either alternative was 'a decision of the Council in respect of the exercise of a discretionary power by the Council under the Scheme', within the meaning of cl 7.8 of TPS 2, and that, accordingly, the University had a right to seek review of the relevant decision by the Tribunal under that clause.
It is understandable that the University sought to recast its case and to abandon the premise of a deemed refusal, because, plainly, the Scheme does not create a deemed refusal of any application under the Scheme, other than a development application (see cl 6.5.4 of TPS 2). However, in the case of such a fundamental change in position, the University should have sought leave to amend the application or, at the very least, given prior notice to the other parties.
While the Tribunal is charged to act 'with as little formality and technicality as is practicable' (s 9(b) of the SAT Act), its objectives also include to 'minimise the costs to the parties' (s 9(b) of the SAT Act), and it is required to afford procedural fairness (s 32(1) of the SAT Act). Although the City and the Commission were able to respond orally to the University's recast application, it was unfortunate that they had to do so. They each prepared and filed written submissions based on the original premise of a deemed refusal and the City presented its oral submissions in chief on that premise. While there was overlap between the City's and Commission's written and ultimate oral arguments, it appears that some preparation costs were wasted.
Does the University have a right to seek review in the ODP proceedings?
As noted earlier, the University recast its case during the hearing of the preliminary issues so as to contend that, on 9 December 2008, the Council made a decision either:
•'not to proceed with the proposal' under cl 3.8.7 of TPS 2; or, alternatively,
•not to 'approve the [ODP] in principle' under cl 3.8.3 of TPS 2.
The University argued that either of these decisions was 'a decision of the Council in respect of the exercise of a discretionary power by the Council under the Scheme', within the meaning of cl 7.8 of TPS 2. As the University was aggrieved by the decision of the Council, it contended that it had a right to seek review of the decision under cl 7.8.
However, the University's argument that it has a right to seek review of a relevant decision of the Council in the ODP proceedings under cl 7.8 of TPS 2 cannot succeed for three reasons.
First, assuming that the Council made a decision as contended by the University, and assuming that cl 7.8 of TPS 2 confers a right to seek review of that decision, the University sought to exercise a right of review, as noted earlier, under s 252(1) of the PD Act, not under cl 7.8 of TPS 2. Section 252(3) of the PD Act states that the exercise of a right to apply for a review of a decision under s 252(1) of the PD Act 'extinguishes' another right to apply for a review of the same decision under a planning scheme, and vice versa.
Second, it is clear from the minutes of the meeting of the Council held on 9 December 2008 that the decision that the University seeks to rely on was made in relation to the DA, not in relation to the ODP. Both the heading of the item in the Council minutes and the officers' recommendation refers ‑ and refers only ‑ to the DA, not to the ODP. The only reference to an Outline Development Plan in the minutes was to the absence of an adopted Outline Development Plan being one of a number of reasons for the officers' recommendation of refusal of the DA. While the Council's resolution only referred to 'this matter', it is plain from the heading of the item in the minutes and from the fact that the resolution was an alternative resolution proposed by the Planning Committee to the officers' recommendation in relation to the DA, that the only relevant decision made by the Council related to the DA. The Council has not, on the evidence presented to the Tribunal, made any relevant decision in relation to the ODP.
Mr Donaldson submitted that the term 'the proposal' in cl 3.8.7 of TPS 2 'is not necessarily co‑extensive with the ODP'. If that were correct, then the term might extend to the wider proposal in the ODP and DA, so that a decision to refuse the DA would be a decision 'not to proceed with the proposal', within the meaning of cl 3.8.7 of TPS 2.
However, there are two textual indications in cl 3.8.7 of TPS 2 that make it clear that the term 'the proposal' is relevantly synonymous with the 'Outline Development Plan' and does not extend to a wider proposal including the DA.
The first textual indication is the context. When the term 'the proposal' is read in the context of the words that precede and follow it, namely, 'the Council may decide not to proceed with the proposal or may submit the Outline Development Plan so prepared to the [Commission] … ', it is clear that the terms 'the proposal' and 'the Outline Development Plan' refer to the same document. 'The proposal' is the proposal for comprehensive planning set out in the ODP.
The second textual indication is the statement in cl 3.8.7 of TPS 2 that an adopted ODP 'forms the basis for approval of … development applications within the area covered by the [ODP]'. The term 'the proposal' cannot include the DA, because the proposal, once adopted, would form the basis for consideration of whether to approve the DA.
The third reason why the University's argument cannot succeed is that, even if a right of review under cl 7.8 of TPS 2 were not extinguished, and even if the Council had made a relevant decision under cl 3.8.3 or cl 3.8.7 of TPS 2, on its proper interpretation, cl 7.8 of the Scheme does not confer a right to seek review of a decision of the Council under either of those provisions. There are three reasons why this is the case.
The first reason is that an applicant for the approval of an ODP under cl 3.8 of the Scheme is not '[a]n applicant for the Council's planning approval or other approval required by the Scheme'.
It is the Commission, not the Council, whose approval is required by the Scheme in relation to an ODP. While the Council has a role in relation to an ODP and, indeed, it can put a stop to the ODP process, both before advertising (cl 3.8.3 of TPS 2) and after advertising (cl 3.8.7 of TPS 2), so that the Commission can never actually adopt the ODP under the Scheme, nevertheless, an applicant for the approval of an ODP under the Scheme is not an 'applicant for the Council's … approval required by the Scheme'. Moreover, while cl 3.8.3 of TPS 2 requires the Council's 'approval in principle' in order for the Council to submit an ODP to the Commission, an applicant submitting an ODP could not be characterised as an applicant for the Council's 'approval in principle', nor for the Commission's 'approval in principle', which is also required in order to advertise an ODP, but only as an applicant for the Commission's approval of the ODP. While certain steps need to occur in order for the Commission to be able to adopt an ODP under cl 3.8, including the Council's approval in principle, the Commission's approval in principle, advertising and submission by the Council to the Commission of the ODP with any objections, an applicant, and in this case, the University, is an applicant for the Commission's approval required by the Scheme.
The second reason is that while cl 3.8.3 of TPS 2 requires the Council's 'approval in principle', that is not an 'approval' within the meaning of cl 7.8 of TPS 2. Clause 7.8 does not refer to 'approval in principle', but rather to 'approval'.
The third reason why cl 7.8 of TPS 2 does not confer a right to seek review of a decision of the Council under cl 3.8.3 or cl 3.8.7 of the Scheme is that any such decision of the Council would not be 'in respect of the exercise of a discretionary power by the Council under the Scheme'.
The City and the Commission both relied on the decision of Heenan J in Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129 (Gnarabup Beach). In that case, the appellant proposed to develop land zoned 'Development' under the Shire of Augusta-Margaret River Town Planning Scheme No 18 (TPS 18). The appellant prepared a Structure Plan for the land and lodged it with the Shire of Augusta‑Margaret River (Shire). The Structure Plan was advertised and the Shire resolved to forward it, and the submissions received upon advertising, to the Commission, together with a number of modifications to the Structure Plan that the Shire recommended to the Commission under cl 3.3.5 of TPS 18. The Shire's recommendations generally proposed a more restricted form of subdivision and development than that proposed by the appellant in the Structure Plan.
Clause 8.5 of TPS 18 stated that:
An applicant aggrieved by a decision of the Council in respect of the exercise of a discretionary power under the Scheme may appeal in accordance with Part V of the [TPD Act] and the rules and regulations made pursuant to the Act.
The appellant purported to appeal to the Town Planning Appeal Tribunal against the resolution of the Shire. The Town Planning Appeal Tribunal dismissed the appeal on the basis that no right of appeal from the resolution of the Shire to submit the Structure Plan with recommended modifications existed, with the consequence that the Town Planning Appeal Tribunal had no jurisdiction to hear and determine the appeal. The appellant appealed from the Town Planning Appeal Tribunal's decision to the Supreme Court.
At [12] ‑ [16] of the judgment, his Honour contrasted the nature and process of adoption of a Structure Plan with the nature and process of determination of a subdivision or development application. At [15] ‑ [17] of the judgment, his Honour said:
[T]he formulation and eventual adoption, if that occurs, of a [S]tructure [P]lan resembles the formulation, consideration and approval of a Town Planning Scheme. It is the formulation and approval of an instrument which is legislative in character in the sense that it establishes criteria or 'parameters' which require consideration when an applicant is seeking approval for subdivision or development. …
Bearing in mind the large and diverse considerations which will affect the formulation of any Town Planning Scheme or [S]tructure [P]lan and the possible need for conformity to [S]tate‑wide or regional planning considerations, the content of such a [S]tructure [P]lan, except where specifically statutorily prescribed, will significantly reflect matters of policy in contrast to content specifically prescribed or determined by any existing law. …
Recommendations [by the Shire to the Commission] in relation to a proposed [S]tructure [P]lan will be recommendations relating to the establishment of criteria which, if the plan is ultimately approved, will form the factors or criteria by which applications for subdivision or development approval will in future be decided either absolutely or in the exercise of any discretion by the decision‑maker.
This feature of the process by which the [Shire] receives a proposal for a [S]tructure [P]lan, advertises it within the area, receives and considers public submissions before referring the proposed structure plan, together with its own recommendations, to the Commission for the latter to consider whether or not to approve the [S]tructure [P]lan does not involve the Council making a decision upon the [S]tructure [P]lan still less a discretionary decision. …
His Honour then said the following at [17]:
In my opinion it is simply not a decision involving the determination of any rights or obligations of any party, nor the application of discretionary considerations to make a determination in accordance with existing law. Rather, it is part of a deliberative process involving the formulation of policy for eventual decision, by the Commission, for criteria which will need generally to be satisfied when granting subdivisional or development approval of land within the Development Zone at Gnarabup.
His Honour concluded that the Town Planning Appeal Tribunal was correct in its decision that it lacked jurisdiction to hear and determine the appeal, because, as his Honour said at [20]:
[T]he Council [was] not involved in granting any consent, permission, approval or other authorisation which [was] within its discretion, nor [was] the process of evaluation of the suitability of the proposed Structure Plan anything but a further step in the formulation of planning policy supplementary to the Town Planning Scheme itself.
The University submitted that the Tribunal should not follow Gnarabup Beach because it was wrongly decided and, in any case, is distinguishable.
In relation to the University's first submission, even if the Tribunal were of the view that Gnarabup Beach was wrongly decided, it could not, at least as presently constituted, depart from that decision if it were not distinguishable. A non‑judicial member is bound to follow a decision of a single Judge of the Supreme Court that is in point: see s 105 of the SAT Act.
The University is correct in its submission that Gnarabup Beach is distinguishable. There is no relevant distinction between a Structure Plan under TPS 18 and an ODP under TPS 2, because these terms cover substantially the same planning concept, namely, a document comprising comprehensive strategic planning of a site or locality under a planning scheme as a basis for the assessment of specific subdivision or development proposals. However, Gnarabup Beach concerned a decision by the Shire to make recommendations to the Commission in relation to a proposed Structure Plan, whereas decisions of the Council under cl 3.8.3 and cl 3.8.7 of TPS 2 could have the effect of terminating an ODP process.
The University submitted that a decision by the Council under cl 3.8.3 or cl 3.8.7 of TPS 2 is 'in respect of the exercise of a discretionary power by the Council under the Scheme', within the meaning of cl 7.8 of TPS 2, because it involves the exercise of a power (to approve an ODP in principle or to not proceed with the proposal), and the exercise of that power involves a discretion.
It is correct that the word 'may' in cl 3.8.7 of TPS 2 (see s 56(1) of the Interpretation Act 1984 (WA)) and the terms of cl 3.8.3 of TPS 2 indicate that the powers there referred to may be exercised or not by the Council, at its discretion. However, as the Supreme Court recognised in Gnarabup Beach, the expression 'the exercise of a discretionary power' does not include every decision by a local government under a planning scheme that involves the exercise of a discretion.
While the decision in Gnarabup Beach is distinguishable, certain elements of his Honour's reasoning are, with respect, very much in point. In particular, as his Honour recognised at [15] and [20] of the judgment, a Structure Plan (and, equally, an ODP) is legislative in character 'in the sense that it establishes criteria or "parameters" which require consideration when an applicant is seeking approval for subdivision or development' and involves, in substance, 'the formulation of planning policies supplementary to the Town Planning Scheme itself'. As his Honour recognised at [16] of the judgment, the content of a Structure Plan (and, equally, of an ODP) 'will significantly reflect matters of policy in contrast to content specifically prescribed or determined by an existing law'.
As I said in a different context in WA Plantation Resources Pty Ltd and City of Bunbury [2005] WASAT 194 at [50]:
The consideration and adoption of a structure plan involves a process of strategic planning which is conceptually and temporally distinct from the process of development assessment.
Strategic planning in the form of a Structure Plan or an ODP to provide 'comprehensive planning' (cl 3.8.1 of TPS 2) and to form 'the basis for approval of subdivision and development applications' (cl 3.8.7 of TPS 2) is a legislative process involving the establishment of policy criteria or parameters for consideration in subsequent subdivision or development assessment. Therefore, a decision made by a local government in relation to the processing or consideration of a Structure Plan or an ODP is not 'in respect of the exercise of a discretionary power' under the planning scheme. Rather, it is in respect of the exercise of a legislative power under the planning scheme. It is, no doubt, for this reason that modern planning schemes that intend to confer review rights in relation to a strategic planning process do so explicitly: see, for example, Pyrford Court Pty Ltd and City of Wanneroo [2004] WATPAT 52 at [26] ‑ [27] and Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76 at [7] ‑ [8]. The Scheme under consideration in this case is a relatively ancient planning instrument, having been gazetted almost a quarter of a century ago. If it were made today, it might well include a specific right of review.
Mr Donaldson also submitted that cl 7.8 of TPS 2 is different to cl 8.5 of TPS 18 considered in Gnarabup Beach, and confers a right to seek review of a decision under cl 3.8.3 or cl 3.8.7 of TPS 2, because it specifically refers to an applicant for the Council's 'planning approval or other approval required by the Scheme' (emphasis in bold added).
However, there is no relevant distinction between cl 7.8 of TPS 2 and cl 8.5 of TPS 18. The words '[a]n applicant aggrieved by a decision of the Council' in cl 8.5 of TPS 18 were sufficiently broad to encompass both an applicant for development approval and for any other approval required by TPS 18. But, in the case of an applicant for any approval, in order for a decision of the Shire to be reviewable, it had to be in respect of the exercise of a discretionary power under the planning scheme. The situation is no different under TPS 2.
Furthermore, as Mr CA Slarke, counsel for the City, submitted, there is 'work to do' for the words 'or other approval required by the Scheme' in cl 7.8 of TPS 2. There are a number of 'other approvals' which an applicant can seek from the Council under the Scheme, which are not development approvals, such as approvals for alterations to buildings on land used for a non‑conforming use under cl 4.1 of TPS 2 or a change of use from one non‑conforming use to another non‑conforming use under cl 4.2 of TPS 2. Consequently, the words 'or other approval required by the Scheme' in cl 7.8 of TPS 2 do not indicate an intention to extend the operation of the clause conferring review rights to a decision concerning an ODP under cl 3.8 of the Scheme.
Finally, while it was not argued, it is noted that the Tribunal would also not have jurisdiction under s 252(1) of the PD Act to entertain the application for review in the ODP proceedings. Section 252(1) of the PD Act states as follows:
Subject to subsection (3), if ‑
(a)under a local planning scheme or a region planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority;
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has ‑
(i)refused the application; or
(ii)granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority’s decision.
Assuming that:
•the Council is 'the responsible authority' for the grant of a 'consent, permission, approval or other authorisation' under the Scheme in relation to the ODP;
•the University applied to the Council for such a grant; and
•the Council refused the University's application,
for reasons already discussed in relation to whether a decision in relation to an ODP is 'in respect of the exercise of a discretionary power' under cl 7.8 of TPS 2, the grant of the consent, permission, approval or other authorisation would not be 'in the discretion of [the] responsible authority', within the meaning of s 252(1) of the PD Act.
Furthermore, the assumptions could not be established. As determined earlier, it is the Commission, not the Council, that is the 'responsible authority' in relation to the approval of an ODP under the Scheme. In addition, as found earlier, the Council has not made a decision to refuse any application in relation to the ODP; indeed, the Council has not made any decision in relation to the ODP at all.
It follows that the University does not have a right of review in the ODP proceedings and, consequently, the Tribunal does not have jurisdiction to hear and determine those proceedings.
Is the DA capable of approval in the absence of an adopted ODP?
In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, Mason and Wilson JJ, stated, at 320, as follows:
The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.
Mr Donaldson submitted, on behalf of the University, that TPS 2 does not, on its proper interpretation, preclude the granting of development approval for land in the Development zone in the absence of an adopted ODP. Mr Donaldson relied on the fact that TPS 2 does not expressly require the prior adoption of an ODP. He also relied on the decision of the Tribunal in Swanbourne Estate Development Joint Venture and City of Nedlands [2008] WASAT 274 at [33] ‑ [36] (Swanbourne Estate).
Although the Commission did not seek leave to intervene in the DA proceedings, Mr RM Mitchell SC, who appeared with Mr DH Leith on behalf of the Commission in the ODP proceedings, also contended in the course of argument in the ODP proceedings that adoption of an ODP is not mandatory in order for the Council to be able to grant development approval in relation to land in the Development zone under the Scheme. In particular, Mr Mitchell noted that cl 6.4 of TPS 2, which refers to matters for consideration in relation to a development application, and cl 6.5 of TPS 2, which refers to the determination of a development application, do not require prior adoption of an ODP or refer to an ODP at all.
Although the Scheme does not expressly require the adoption of an ODP by the Commission prior to the granting of development approval in relation to land within the Development zone under the Scheme, there are three textual indications in cl 3.8 of TPS 2 which manifest a clear legislative intention to that effect; cf Auswide International Investments Southern River Pty Ltd and City of Gosnells [2007] WASAT 290 at [11] ‑ [16].
First, cl 3.8.1 of TPS 2 states that:
It is the intention of the Council to ensure that development of land within the Development Zone takes place only after comprehensive planning ensures the maximum possible benefits of urban design and servicing. (Emphasis in bold added.)
It is clear, when cl 3.8 of TPS 2 is read as a whole, that the 'comprehensive planning' contemplated and required by cl 3.8.1 is to be in the form of an ODP lodged with the Council and ultimately adopted by the Commission in accordance with the clause.
As I said in Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98 at [10]:
The purpose of an ODP is to provide comprehensive strategic planning prior to the formulation, or at least approval, of specific subdivision or development applications in relation to land.
While cl 3.8.2 of TPS 2 contemplates that an ODP may be submitted at the same time as a development application (where an ODP has not previously been submitted and adopted by the Commission), it is clearly implicit in cl 3.8.1 that a development application can only be approved in the Development zone after an ODP has been adopted under the clause. Clause 3.8.1 expressly states the intention that development only take place after comprehensive planning ensures the maximum possible benefits of urban design and servicing. It can only be determined that comprehensive planning has ensured the maximum possible benefits of urban design and servicing once the instrument of comprehensive planning, namely, the ODP, has been adopted by the relevant strategic planning authority, namely, the Commission. While the clause is expressed as referring to the intention of the Council, not the Scheme, having regard to the other textual indications and the role of the Council as the responsible authority for carrying out the Scheme (cl 1.6 of TPS 2), the intention of the Council and the intention of the Scheme are, relevantly, synonymous.
Second, cl 3.8.2 of TPS 2 indicates that a development application may not even be made to the Council in relation to land in the Development zone unless there is an ODP submitted with it (or unless an ODP has been previously submitted). There would be little point to require an ODP to be submitted with or before a development application, to provide 'comprehensive planning', unless the ODP is required to be adopted by the relevant strategic planning authority before the development application can be approved.
Third, cl 3.8.7 of TPS 2 states that:
The Council may decide not to proceed with the proposal or may submit the Outline Development Plan so prepared to the [Commission] together with the objections and request the [Commission] to adopt the plan submitted as the basis for approval of subdivision and development applications within the area covered by the plan. (Emphasis in bold added.)
Clearly, in order for an ODP to be adopted by the Commission as the basis for approval of development applications, the ODP must be adopted by the Commission before the determination of any development application within the area covered by the plan.
Swanbourne Estate does not assist the University. There the Tribunal was concerned with the interpretation of cl 5.15.5 of the Scheme, which is not relevant in this case. Furthermore, the Tribunal did not express a considered view in relation to the meaning of cl 5.15.5 of the Scheme, because it was unnecessary, in the circumstances of the case, to do so.
At [36] in Swanbourne Estate, the Tribunal said that it was 'unfortunate' that the literal meaning of cl 5.15.5 of the Scheme did not accord with the City's submission in that case as to its legal effect. The Tribunal suggested that the Council should amend cl 5.15.5 of the Scheme 'to bring the wording of the provision into conformity with the City's understanding of its intent'. However, the Tribunal did not decide between the literal meaning of cl 5.15.5 of TPS 2 and the City's understanding of its legal effect.
Finally, while it is correct that cl 6.4 and cl 6.5 of TPS 2 do not require consideration, much less prior approval, of an ODP, those clauses are general provisions in relation to the assessment and determination of development applications in any zone under the Scheme. In contrast, cl 3.8 of TPS 2 applies specifically in relation to the Development zone. Where there is a conflict between general and specific provisions, the specific provisions prevail: see DC Pearce and RS Geddes Statutory Interpretation in Australia (Butterworths, 6th edition, 2006) at [4.32] and cases there cited.
It follows that the DA is not capable of approval in the DA proceedings.
Need for strategic planning of the site involving all stakeholders
The site is obviously highly unusual, if not unique, in consequence of its relatively large size, suburban location, Urban and Development zoning, and freehold ownership by the University. It appears that planning proposals for the site have given rise to environmental considerations. However, in that respect, the site is not unusual, much less is it unique. Planning authorities ‑ the Tribunal included ‑ consider and determine planning proposals in the context of environmental considerations on a daily basis. Environmental considerations are part and parcel of urban and regional planning.
It appears that the University's attempts to plan and develop its land over the last decade have involved or given rise to at least:
•three subdivision applications, with two subsequent revisions in relation to one and one subsequent revision in relation to another;
•four ODP applications;
•three environmental referrals to the Environmental Protection Authority (EPA);
•three environmental assessments by the EPA;
•three Environmental Bulletins published by the EPA;
•the remission of one Environmental Bulletin by the Minister for Environment to the EPA for further consideration;
•a Structure Plan prepared by the Department for Planning and Infrastructure;
•an appeal to the Town Planning Appeal Tribunal which remains pending before the Tribunal as a 'legacy matter' (DR 96 of 2002);
•two decisions by the Minister for Environment under the Environmental Protection Act 1986 (WA) (EP Act);
•a referral to the Commonwealth Minister for Environment;
•a decision by the Commonwealth Minister for Environment;
•a number (the actual number is unknown to the Tribunal) of environmental appeals to the Minister for Environment which have yet to be determined;
•a development application;
•a draft recommendation report for the Commonwealth Minister for Environment; and
•the ODP and DA proceedings before the Tribunal.
However, none of these many and varied processes have actually determined the development potential of the site.
DR 96 of 2002 was commenced approximately seven years ago and has the dubious distinction of being the only remaining 'legacy' matter of the many hundreds of legacy matters that the Tribunal inherited from former adjudicators upon its commencement on 1 January 2005. The Tribunal is precluded by s 41 of the EP Act from making a decision that 'could have the effect of causing or allowing the proposal to be implemented' and, consequently, from making a final decision in relation to the proceedings, until an authority is served on it by the Minister for Environment under s 45(7) of the EP Act: Burns and Commissioner of Soil and Land Conservation [2006] WASAT 83 at [27].
However, in attempts to progress the substance of the application in DR 96 of 2002, amid myriad interruptions caused by environmental referrals, environmental assessments, environmental bulletins and environmental appeals under the EP Act, the Tribunal has conducted 18 directions hearings and five mediations, and the former Town Planning Appeal Tribunal appears to have conducted no less than five directions hearings and an unknown number of mediations.
The amount of public time, effort and money that has been expended, by the University, environmental authorities, planning authorities, and the Tribunal and its predecessor, in relation to planning proposals for the site, is extraordinary. Furthermore, the various processes referred to earlier, which have been inconsistent, indeterminate and, apparently, never‑ending, reflect very poor public administration of planning and environmental laws.
To borrow Mr Donaldson's expression, which he used in a different context in the course of argument, the University and, indeed, all other stakeholders, have become caught in a 'Kafkaesque nightmare'. It is hardly surprising that the University sought to break free from the nightmare by making review applications to the Tribunal and its predecessor. However, the Tribunal is precluded by s 41 of the EP Act from making a final decision in DR 96 of 2002 and, as determined earlier in these reasons, has no jurisdiction to entertain the ODP proceedings, nor power to grant approval to the DA in the DA proceedings.
Proper public administration in general, and orderly and proper environmental planning in particular, requires that the seemingly endless series of applications, plans, environmental referrals, environmental assessments, environmental bulletins, environmental appeals, planning appeals/reviews and Ministerial decisions should cease. Proper public administration, and orderly and proper environmental planning, also requires that the University, each of the three tiers of Government, and other relevant authorities and stakeholders, such as the Commission and the Water Corporation, should sit down together, and strategically and comprehensively determine the development potential of the site.
There is capacity in DR 96 of 2002 for this to occur through mediation facilitated by the Tribunal, provided that all relevant stakeholders participate. Alternatively, the State Government could take charge of this process. Either way, it is time for all concerned to awake from the 'Kafkaesque nightmare'.
Conclusion
The University does not have a right of review in the ODP proceedings and, consequently, the Tribunal does not have jurisdiction to hear and determine those proceedings.
The Tribunal does not have power, in the absence of an ODP adopted by the Commission, to grant approval to the DA in the DA proceedings.
It follows that the application for review in DR 15 of 2009 and that the proceedings in DR 17 of 2009 must be dismissed.
However, proper public administration in general, and orderly and proper environmental planning in particular, requires that the University and all other stakeholders should extract themselves from the quagmire in which have become embroiled over the past decade in relation to the planning and development of the site. The relevant stakeholders should sit down together and strategically and comprehensively determine the development potential of the site.
Orders
The Tribunal makes the following orders:
DR 15 of 2009
1.The preliminary issue is answered as follows:
The development application is incapable of approval under the City of Nedlands Town Planning Scheme No 2 in the absence of an Outline Development Plan adopted by the Western Australian Planning Commission.
2.The application for review is dismissed.
3.The deemed refusal of DA 05/539 by the respondent is set aside and a decision is substituted that DA 05/539 is refused under cl 6.5.1 of the City of Nedlands Town Planning Scheme No 2.
4.The summonses and orders directed to Dr Andrew Weavers and Ms Michelle Wicks are discharged.
DR 17 of 2009
1.The preliminary issue is answered as follows:
The applicant does not have a right of review to bring these proceedings and the Tribunal does not have jurisdiction to hear and determine these proceedings.
2.The proceedings are dismissed.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
0
7
10