Vogue Marketing And Syndication and Shire Of Murray
[2008] WASAT 232
•7 OCTOBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: VOGUE MARKETING AND SYNDICATION and SHIRE OF MURRAY [2008] WASAT 232
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 OCTOBER 2008
FILE NO/S: DR 67 of 2008
BETWEEN: VOGUE MARKETING AND SYNDICATION
Applicant
AND
SHIRE OF MURRAY
Respondent
Catchwords:
Town planning - Development application - Shopping centre - Preliminary issue - Whether there is discretion to approve proposed development - Whether proposed development complies in principle with an outline development plan - Outline development plan shows site as 'area excluded by [WAPC] and subject to further planning'
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Murray Town Planning Scheme No 4, cl 3.3.2, cl 6.8.4, cl 6.8.5, cl 6.8.14, Sch 7
Result:
There is no discretion to approve the proposed development
Development application refused
Category: B
Representation:
Counsel:
Applicant: Mr P McQueen
Respondent: Mr D McLeod
Solicitors:
Applicant: Lavan Legal
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal was called upon to decide a preliminary issue as to whether it has discretion to approve a shopping centre development. The local planning scheme requires development to comply in principle with an approved outline development plan. Although an outline development plan was originally lodged for approval including the site, the approved outline development plan identified the site as 'area excluded by [the Western Australian Planning Commission] and subject to further planning'.
The Tribunal determined that it does not have discretion to approve the proposed development. The approved outline development plan either excluded the site from its operation and required further planning in the form of another outline development plan or included the site but required further planning in the form of an amendment to the approved outline development plan or another outline development plan. On either possible interpretation, the Tribunal does not have discretion to approve the proposed development.
The Tribunal therefore refused the development application.
Introduction
The Shire of Murray (Shire or Council) has raised a preliminary issue as to whether the Tribunal has discretion to approve a shopping centre development proposed by Vogue Marketing and Syndication (Vogue) on Lot 9005 Old Mandurah Road, Ravenswood (site). The proceedings involve an application commenced under s 252(1) of the Planning and Development Act 2005 (WA) for review of the Shire's deemed refusal of the development application.
Background
The site is zoned 'Special Development' under the Shire of Murray Town Planning Scheme No 4 (TPS 4 or Scheme). Clause 6.8.4 of TPS 4 states as follows:
The development of land within the Special Development zone shall comply in principle with an Outline Development Plan, adopted by Council and approved by the State Planning Commission and shall comply with the special provisions in the [sic] Schedule 7 applicable to the specified land.
An outline development plan for an area bounded by Old Mandurah Road to the north and Pinjarra Road to the west, which includes the site, was lodged by Vogue's consultant town planner for approval by the Western Australian Planning Commission (Commission), which is the successor to the State Planning Commission (SPC). A revised outline development plan which was submitted to the Commission identified part of the site as 'commercial future planning'.
On 20 April 2006 the Commission approved the revised outline development plan subject to modifications, including that 'the area subject to "further planning" being increased in accordance with Attachment 1 Revised ODP'. The attachment shows the site as hatched with the words 'area subject to further planning' superimposed.
The revised outline development plan was apparently amended by Vogue's consultant town planner on 15 May 2006 in accordance with the Commission's decision of 20 April 2006, and was subsequently stamped by the Commission as 'approved/endorsed by the [Commission] on 20 April 2006' (approved ODP). The approved ODP identifies the site by double hatching and as 'area excluded by SPC and subject to further planning'. The letters 'SPC' are clearly a reference to the Commission.
In this context, the Shire contends that the Tribunal does not have discretion to grant approval for the proposed development and that the development application is premature until the approved ODP is amended to identify how the site may be developed.
In contrast, Vogue contends that the Tribunal has discretion to approve the proposed development. In particular, Vogue submits that:
•'further planning' has been conducted in the form of a revised economic impact assessment which considers the commercial impact of the proposed development on the locality;
•in the absence of any indication of the type of development to occur on the site, the determination of the development application is to be based upon orderly and proper planning and the matters set out in cl 3.3.2 of TPS 4; and
•the development application is clearly contemplated by the special provision in Sch 7 of TPS 4 which states that a neighbourhood shopping centre may be developed on the site with retail uses limited to 2,000 square metres gross leasable area or such greater area as can be justified by demonstrated demand.
Does the Tribunal have discretion to approve the proposed development?
As noted earlier, the approved ODP identifies the site as 'area excluded by [the Commission] and subject to further planning'. These words have either one of two meanings, namely:
•the site is excluded from the approved ODP and is subject to further planning in the form of another outline development plan; or
•the site is the subject of the approved ODP which requires further planning in the form of an amendment to the approved ODP or another outline development plan.
If the Tribunal were required to determine which of these two alternative interpretations is correct, it would be inclined to the first, because of the words 'area excluded by [the Commission]' on the approved ODP and the depiction of the site on the approved ODP by double hatching and without any of the detailed matters that an outline development plan is required to indicate under cl 6.8.5 of TPS 4. Furthermore, in the context of determining whether to approve an outline development plan, the purpose of which is to provide detailed, sitespecific planning, the Commission's modification to increase the area subject to 'further planning', in effect, excluded that area from the operation of the approved ODP. This was correctly understood by Vogue's consultant town planner in preparing the amended revised outline development plan and by the Commission in subsequently stamping the approved ODP as approved by it on 20 April 2006.
However, it is unnecessary, in order to determine the preliminary issue and to come to the correct and preferable decision in relation to the review application, to express a considered view as to which of the two alternative interpretations is correct.
If the first interpretation is correct, the Tribunal does not have discretion to approve the proposed development because the site is excluded from the approved ODP and, therefore, the proposed development does not comply in principle with an outline development plan adopted by the Council and approved by the Commission.
If the second interpretation is correct, the Tribunal does not have discretion to approve the proposed development because the approved ODP requires further planning in the form of an amendment to the approved ODP or another outline development plan, which has not occurred. While the requirement that the further planning be in the form of an amendment to the approved ODP or another outline development plan adopted by the Council and approved by the Commission is not express, it is unmistakeably implicit in the depiction of the site by double hatching and without any of the detailed matters that cl 6.8.5 of TPS 4 requires an outline development plan to indicate. Plainly, the intent of the approved ODP is to require the site to be planned in relation to the detailed matters referred to in cl 6.8.5 which are reflected on the approved ODP in relation to the area that adjoins the site.
Vogue's first submission, that the Tribunal has discretion to approve the proposed development because 'further planning' has been conducted in the form of a revised economic impact assessment, is rejected, because the revised economic impact assessment is not an outline development plan or even an amendment to the approved ODP. Furthermore, and in any case, the revised economic impact assessment is not directed to the range of matters that an outline development plan is required to address under cl 6.8.5 of TPS 4. Rather, the revised economic impact assessment is directed to justification of a greater gross leasable area than is contemplated by the special provision in Sch 7 of TPS 4.
In relation to Vogue's second submission, that in the absence of any indication of the type of development to occur on the site, the determination of the development application is to be based upon orderly and proper planning and the matters set out in cl 3.3.2 of TPS 4, the development application is not capable of a merit planning assessment having regard to the considerations in cl 3.3.2 of TPS 4, because it fails at the jurisdictional threshold created by the first part of cl 6.8.4 of TPS 4. If there is no discretion to approve the proposed development, then there can be no merit assessment based upon orderly and proper planning and the matters set out in cl 3.3.2 of TPS 4. Furthermore, cl 6.8.14 of TPS 4 has the effect that where there is any discrepancy between cl 6.8.4 and any other provision of the Scheme, cl 6.8.4 prevails.
In relation to Vogue's third submission, while it is correct that the special provision in Sch 7 of TPS 4 applicable to the site contemplates the development of a neighbourhood shopping centre (although with less gross leasable area than the proposed development), cl 6.8.4 of TPS 4 requires that development in the Special Development zone both comply in principle with an outline development plan adopted by the Council and approved by the Commission and comply with the special provisions in Sch 7 applicable to the specified land. Neither the Council nor the Tribunal on review has discretion to approve a development in the zone which complies with the special provisions but does not comply in principle with an adopted and approved outline development plan.
Conclusion
The Tribunal has determined that it does not have discretion to approve the proposed development. Consequently, the application for review should be dismissed and the development application should be refused approval.
Orders
The Tribunal makes the following orders:
1.The preliminary issue is answered as follows:
'The Tribunal does not have discretion to approve the proposed development'.
2.The application for review is dismissed.
3.The deemed refusal by the respondent of a development application for a shopping centre at Lot 9005 Old Mandurah Road, Ravenswood is set aside and a decision is substituted that the development application is refused.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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