WA Plantation Resources Pty Ltd and City of Bunbury & Anor

Case •

[2005] WASAT 194

•

5 AUGUST 2005

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   WA PLANTATION RESOURCES PTY LTD and CITY OF BUNBURY & ANOR [2005] WASAT 194

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   19 JULY 2005

DELIVERED          :   5 AUGUST 2005

FILE NO/S:   RD 219 of 2004

BETWEEN:   WA PLANTATION RESOURCES PTY LTD

Applicant

AND

CITY OF BUNBURY
First Respondent

WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent

Catchwords:

Town planning - Planning application - Woodchip mill - Preliminary issues - Construction and Interpretation - Planning Scheme - Whether planning application capable of approval in absence of structure plan or development guide plan adopted by Council and endorsed by Commission - Whether "approval" by Commission of structure plan constitutes adoption by Council and endorsement by Commission - Jurisdiction ­ Whether Tribunal has power to adopt structure plan in proceedings for review of determination of planning application - Whether function and discretion to adopt structure plan exercisable by Council in making the reviewable decision ­ Adoption of structure plan was conceptually and temporally distinct from development assessment - Practice and procedure - Leave to intervene - Issue concerned proper construction of legislation which conferred function and discretion on intervenor and the legal effect of intervenor's determination

Legislation:

City of Bunbury Town Planning Scheme No 7, cl 5.9.13, cl 6.1, cl 6.2 and cl 10.11

State Administrative Tribunal Act 2004 (WA), s 29(1), s 36(1) and s 37(3)

Town Planning and Development Act 1928 (WA), s 7(3)

Result:

Preliminary issues determined as follows:

  1. "No".

  2. "No".

  3. "No".

Category:    A

Representation:

Counsel:

Applicant:     Mr BR McMurdo

First Respondent           :     Mr MJ Flint

Second Respondent       :     Mr CS Bydder

Solicitors:

Applicant:     Phillips Fox

First Respondent           :     Minter Ellison

Second Respondent       :     State Solicitor's Office

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

Commonwealth of Australia v Randwick City Council [2000] NSWLEC 276

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297

Empire Securities Pty Ltd and Ors and Western Australian Planning Commission [2005] WASAT 98

McDougall v Warringah Shire Council (1993) 30 NSWLR 258

Case(s) also cited:

Bennett Range Pastoral Pty Ltd & Anor and City of Albany [2004] WATPAT 109

Building Recyclers Investments Pty Ltd v Marrickville Council (2003) 131 LGERA 413

Dretzke v Boroondara City Council [1999] VCAT 920

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. The City of Bunbury and WA Plantation Resources Pty Ltd each raised preliminary issues in proceedings for review of the Council's refusal of planning approval for a woodchip mill.  The development was proposed on land within an area identified as a Development Investigation Policy Area on the town planning scheme map.  The town planning scheme stated that no development was permitted within a Development Investigation Policy Area until a structure plan or development guide plan had been adopted by the Council and endorsed by the Commission.  WA Plantation Resources submitted a structure plan to the Council, which the Council refused.  WA Plantation Resources then submitted the structure plan to the Commission, which approved it.

  2. The Tribunal determined that, as the site is within a Development Investigation Policy Area shown on the scheme map, the proposed development was not capable of approval in the absence of a structure plan or a development guide plan that has been adopted by the Council and endorsed by the Commission.  On the proper construction of the scheme, the approval of the structure plan by the Commission did not amount to approval by the Council.  Rather, it constituted a determination that it endorsed the structure plan if adopted by the Tribunal on review of the Council's non-adoption.

  3. The Tribunal also determined that it did not have power, under s 29(1) of the State Administrative Tribunal Act 2004 (WA), to adopt the structure plan on behalf of the Council. This was because the Council's function and discretion to adopt a structure plan involved an earlier and different process to the determination of a planning application.

Introduction

  1. The City of Bunbury (Council) and WA Plantation Resources Pty Ltd have each raised preliminary issues for determination in review proceedings which are pending before the Tribunal. The proceedings involve an application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (the Act) for review of the Council's decision to refuse planning approval for a woodchip mill adjacent to Berth 3 of the Inner Harbour of Bunbury Port.

  2. The Council has identified two preliminary issues, and WA Plantation Resources has identified five preliminary issues.  However, there is considerable overlap within three of the issues identified by WA Plantation Resources, and between those issues and one of the issues identified by the Council.  The seven preliminary issues nominated by the parties can be conveniently reformulated into the following three issues for determination:

    1.Whether, on the proper construction of cl 6.1.1 and cl 6.2.1 of the City of Bunbury Town Planning Scheme No 7 (TPS7), the proposed development is capable of approval in the absence of a structure plan or development guide plan that has been adopted by the Council and endorsed by the Western Australian Planning Commission (Commission).

    2.Whether, on the proper construction of cl 5.9.13 and cl 6.2.1 of TPS7, the "approval" of a structure plan by the Commission, where the Council has not adopted the structure plan, constitutes adoption by the Council and endorsement by the Commission of the structure plan.

    3.Whether, in proceedings for review of the determination by the Council of a planning application, the Tribunal has power under s 29(1) of the State Administrative Tribunal 2004 (WA) (SAT Act) to adopt a structure plan or development guide plan.

  3. The preliminary issues were debated on the basis of the following agreed facts:

    "1.By way of an application for planning approval dated 10 February 2004, the Applicant sought planning approval from the Respondent for the development of a woodchip mill adjacent to Berth 3 of the Inner Harbour of the Bunbury Port (Application).

    2.At its meeting of 3 August 2004 the Council of the Respondent refused the Application.

    3.This matter was commenced as an appeal to the then Town Planning Appeal Tribunal against the refusal of the Application set out in 2 above.

    4.The area adjacent to Berth 3 of the Inner Harbour of the Bunbury Port upon which the woodchip mill is proposed by the Applicant is, pursuant to clauses 6.1 and 6.2 of the City of Bunbury Town Planning Scheme No 7 (TPS 7), within a Development Investigation Policy Area shown on the Scheme Map for TPS 7.

    5.In April 2005, the Applicant lodged with the Respondent, pursuant to clause 5.9.13.2 of TPS 7, a structure plan for an area that included the area adjacent to Berth 3 of the Inner Harbour of the Bunbury Port, upon which the Applicant proposes to develop the woodchip mill (Applicant's structure plan).

    6.The Applicant's structure plan is in respect of the Inner Harbour of the Port of Bunbury, which comprises land that is zoned "Port Industry" and is designated as a "Development Investigation Policy Area" under TPS 7.

    7.The Applicant's structure plan was advertised for a period of 21 days in accordance with clause 9.4.3(a), (b), and (c) of TPS 7.

    8.The Applicant is an applicant with respect to the Applicant's structure plan for the purposes of clause 5.9.13.12, 5.9.13.13 and 10.11 of TPS 7.

    9.At its meeting of 14 June 2005, the Council of the Respondent resolved to "Refuse to grant its support to" the Applicant's structure plan.

    10.By way of letter dated 15 June 2005 the Applicant submitted the Applicant's structure plan to the Western Australian Planning Commission (Commission) for its determination pursuant to clause 5.9.13.11 of TPS 7.

    11.At its meeting on 17 June 2005, the South West Region Planning Committee, acting under authority delegated by the Commission, resolved, among other things:

    'to determine pursuant to clause 5.9.13.11 of [TPS 7], to approve the [Applicant's structure plan] subject to modifying section 5.4.1 'Performance Standards' to require the annual monitoring report being referred to both the City of Bunbury and the Department of Environment'."      

Commission's application for leave to intervene

  1. At the commencement of the hearing, Mr CS Bydder, counsel for the Commission, applied for his client to be granted leave to intervene in the proceedings for the purpose of making submissions in relation to the second issue identified at par [5] above. This application was made under s 37(3) of the SAT Act, which provides as follows:

    "The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit".

  2. Section 36(1) of the SAT Act provides that a person intervening in a proceeding is a party to the proceeding.

  3. The application to intervene was not opposed by either party.  I granted leave to the Commission to intervene in relation to the nominated issue, as it concerns the proper construction of legislation which confers a function and discretion on it, and the legal effect of its determination under that legislation.

What are the relevant provisions of the planning scheme?

  1. The first two preliminary issues identified at par [5] above turn on the proper construction of parts of cl 5.9.13, cl 6.1 and cl 6.2 of TPS7. The Scheme has "full force and effect as if it were enacted by" the Act: Act s 7(3). Clause 5.9.13 of TPS7 provides, in part, as follows:

    "5.9.13Structure Plans

    …

    5.9.13.2A person may, on their own initiative or at the request of the local government, submit a structure plan for an area in which that person has a proprietary interest and request adoption of the structure plan by the local government. …

    5.9.13.7Prior to the local government adopting any structure plan, the structure plan is to be forwarded to the Commission for its endorsement and the local government is not to adopt a structure plan unless it has first been endorsed by the Commission.  The local government is to forward its recommendations together with public submissions to the Commission in seeking endorsement from the Commission.

    5.9.13.8The consideration and adoption by the local government of a structure plan is not in any way to diminish the further requirement under clause 8.1 for an applicant to obtain planning approval for any development or subdivision subsequently proposed within the area covered by the structure plan.

    5.9.13.9An adopted … structure plan may be amended or rescinded in accordance with this part as if such amendment or recision was itself a structure plan, provided that any such amendment or recision shall not have effect unless it has first been endorsed by the Commission.

    …

    5.9.13.11Should the local government not adopt a structure plan prepared in accordance with the provisions of this Scheme, then an aggrieved applicant may submit the structure plan to the Commission for its determination.

    5.9.13.12Should an applicant be aggrieved by a determination of the Commission made under clause 5.9.13.10 [sic - 5.9.13.11] the applicant may appeal in accordance with the provisions of clause 10.11.

    5.9.13.13An applicant shall not lodge an appeal under clause 10.11 in relation to the local government's failure to adopt a structure plan unless the applicant has first obtained a determination of the Commission in accordance with clause 5.9.13.11.

    5.9.13.14When determining applications for planning approval within a designated structure plan area, the local government is to, when exercising any discretion available to it under the relevant zone provisions, have regard to any adopted structure plan for that area. … "

  2. Clause 6.1 and cl 6.2 of TPS7 provide, in part, as follows:

    "6.1Operation of Special Control Areas

    6.1.1The following Special Control Areas are shown on the map contained in Schedule 7 or the Scheme Map.

    (a)Development Investigation Policy Area - Related to areas considered suitable for further investigation for urban development.

    (b)Flood Prone Land - Related to areas liable to flooding. …

    6.2Special Control Area Provisions

    6.2.1Development Investigation Policy Areas

    6.2.1.1Development Investigation Policy Areas, as depicted on the Scheme Maps, are designated for further strategic planning and investigations in relation to land use options, environmental issues, servicing requirements, transportation infrastructure needs, landscaping and design guidelines.

    6.2.1.2Structure Plans or Development Guide Plans

    6.2.1.2.1Structure Plans or Development Guide Plans shall be prepared consistent with Clause 5.9 as a framework to guide Planning Consent applications or subdivision proposals or rezoning amendment proposals.

    6.2.1.3Development or Subdivision

    6.2.1.3.1No development or subdivision is permitted within the Development Investigation Policy Area until the respective structure plan or development guide plan has been adopted by Council and endorsed by the Commission.

    6.2.1.4Structure Plans or Development Guide Plans

    6.2.1.4.1Structure Plans or Development Guide Plans shall be prepared consistent with the State Planning Strategy, State Planning Framework Policy, provisions of Statement of Planning Policy No. 1 and other strategic plans of the Commission."

  3. Clause 8.1 of TPS7 requires the prior approval of the Council to commence or carry out any development, other than certain categories of "permitted development".  Finally, cl 10.11 of the Scheme provides that "an applicant aggrieved by a determination of the local government in respect of the exercise of a discretionary power under the Scheme" may apply to the Tribunal for a review of the determination: see the Act s 36(2).

Is the development capable of approval in the absence of a structure plan adopted by the Council?

  1. This issue turns on the proper construction of cl 6.1.1 and cl 6.2.1 of TPS7.  Mr MJ Flint, counsel for the Council, submitted that the wording of subclause 3.1 of cl 6.2.1 is clear:  no development is permitted in a Development Investigation Policy Area until a structure plan or development guide plan has been adopted by Council and endorsed by the Commission.  It is an agreed fact that the site of the proposed development is within a Development Investigation Policy Area shown on the Scheme Map for TPS7.  An adopted and endorsed structure plan is, therefore, required in respect of that area before the proposed development can be approved.

  2. Mr BR McMurdo, counsel for WA Plantation Resources, submitted that subclause 3.1 of cl 6.2.1 is not applicable to the proposed development or to the structure plan submitted by his client.  Mr McMurdo referred, in particular, to the words "Related to areas considered suitable for further investigation for urban development", which appear after "Development Investigation Policy Area ­ " in par (a) of cl 6.1.1, and submitted that, in consequence of these words, "the provisions in clause 6.2 relating to Special Control Area Provisions are limited to [Development Investigation Policy Areas] considered suitable for further investigation for urban development".

  3. Mr McMurdo noted that, under the Zoning Table to cl 4.3 of TPS7, "all forms of residential development under the Port Industry Zoning are denoted ['X'], meaning a use that is not permitted by TPS7".  He submitted that "as areas within the Port Industry Zone are not capable of being approved for any form of residential development, the [Development Investigation Policy Area] in relation to the Inner Harbour is not a Special Control Area in terms of [cl 6.1 and cl 6.2 of the Scheme]". 

  4. In reply, Mr Flint argued that WA Plantation Resources' submission was based on an "error", as "the determination that an area is 'considered suitable for further investigation for urban development' is necessarily made by the Scheme designating the area as a [Development Investigation Policy Area]".  Mr Flint submitted that WA Plantation Resources' argument seeks, in effect, "to challenge the designation by the Scheme of the relevant area" as a Development Investigation Policy Area.  That designation is not capable of review in these proceedings.

  5. Mr Flint also submitted that the reasoning put forward on behalf of WA Plantation Resources does not lead to the conclusion that the relevant area cannot be "considered suitable for further investigation for urban development".  The view that the relevant area is "considered suitable for further investigation for urban development" could be formed irrespective of the current zoning.

  6. 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."

  7. The legislative intention of subclause 3.1 is to preclude the grant of planning approval in respect of any land within a Development Investigation Policy Area, depicted as such on the Scheme Map, unless a structure plan or development guide plan has been adopted by the Council and endorsed by the Commission in relation to that area.  This is apparent from the words of cl 6.1.1, that Special Control Areas are "shown on the map contained in Schedule 7 or the Scheme Map", and subclause 1 of cl 6.2.1, that Development Investigation Policy Areas, "as depicted on the Scheme Maps", are designed for further strategic planning and investigations.  As noted earlier, it is an agreed fact that the site of the proposed development is within a Development Investigation Policy Area shown on the Scheme Map.

  8. WA Plantation Resources' submission that cl 6.2 is only applicable to Development Investigation Policy Areas in relation to areas considered suitable for further investigation for urban development involves a misconstruction of par (a) of cl 6.1.1 of TPS7.  The words "areas considered suitable for further investigation for urban development" in that paragraph do not describe a subset of Development Investigation Policy Areas to which cl 6.2.1 applies, but rather describe the basis for designation of areas as Development Investigation Policy Areas in the Scheme Maps.  It was for the Council, in formulating the Scheme Maps, and for the Minister, in approving the Maps, to be satisfied that the Development Investigation Policy Area shown on the Scheme Map which includes the site of the proposed development was suitable for further investigation for urban development.  If WA Plantation Resources considers that such satisfaction was not reasonably open to the Council and the Minister, or that the designation of the area of the site as a Development Investigation Policy Area in the Scheme Map involved some other legal error, judicial review proceedings might be taken before the Supreme Court.  As the Council correctly submitted, it is not open to the Tribunal to review the designation by the Scheme of the area as a Development Investigation Policy Area.

  9. Furthermore, the fact that residential development is not permitted in the Port Industry Zone does not mean that the land cannot be considered "suitable for further investigation for urban development".  The term "urban development" is not defined in TPS7.  The adjective "urban" is relevantly defined in the Macquarie Dictionary  (Revised Third Edition) at page 2065 as "of, relating to, or comprising a city or town".  The term "urban development" is, therefore, considerably broader than the term "residential development".  More fundamentally, as Development Investigation Policy Areas "are designated for further strategic planning and investigations in relation to land use options" (cl 6.2.1.1), it is entirely conceivable that an area which is currently zoned to preclude or permit only a limited range of "urban development", such as a rural area or port area, could be considered considerable for further investigation for urban development.  Strategic planning and investigation might well concern a potential change to the zoning and character of an area.

  1. The answer to the first preliminary issue identified at par [5] above is "no".  On the proper construction of cl 6.1.1 and cl 6.2.1 of TPS7, the proposed development is not capable of approval in the absence of a structure plan or development guide plan that has been adopted by the Council and endorsed by the Commission.  The next issue for determination is whether, on the proper construction of cl 5.9.13 and cl 6.2.1 of TPS7, the Commission's "approval" of the structure plan submitted by WA Plantation Resources constitutes adoption by the Council and endorsement by the Commission of the structure plan.

Does "approval" of the structure plan by the Commission amount to adoption by the Council and endorsement by the Commission?

  1. Mr Flint submitted that there are, in effect, three indications in the text of cl 5.9.13 of TPS7 which suggest that the Commission's determination by approval of a structure plan, where the Council has not adopted the structure plan, does not constitute or amount to adoption of the plan by the Council for the purposes of cl 6.2.1 of the Scheme.  First, Mr Flint submitted that the scheme of cl 5.9.13 is that there are two alternative mechanisms by which a structure plan could make its way from the Council to the Commission for its determination.  The first mechanism is where the Council forwards a structure plan to the Commission for its endorsement in circumstances where the Council proposes to adopt the plan: cl 5.9.13.7.  The second mechanism is where an applicant itself submits a structure plan to the Commission for its determination in circumstances where the Council has not adopted the plan: cl 5.9.13.11.  The two mechanisms are alternatives, depending on the attitude of the Council.  The latter "is not a de facto right of appeal to the Commission where a structure plan is not adopted by the Respondent".

  2. The second indication, according to Mr Flint, that determination by the Commission does not constitute adoption by the Council, is the use of the word "its" before "determination" in subclause 11 of cl 5.9.13.  The word indicates two things.  First, the determination is on behalf of the Commission, not the Council.  Second, it is not the only necessary determination to be made in relation to the structure plan.

  3. The third indication, according to Mr Flint, that the Commission's determination does not amount to adoption by the Council, is that the Scheme provides for a right to seek review by the Tribunal "in relation to the local government's failure to adopt a structure plan" after "the applicant has first obtained a determination of the Commission in accordance with clause 5.9.13.11": cl 5.9.13.13.  Mr Flint submitted that, if the Commission's determination were the operative decision in circumstances where the Council has not adopted a structure plan, there would be no need for the right to seek review provided for in that subclause, only the right to seek review of the determination of the Commission, which is conferred by subclause 12.

  4. Mr McMurdo submitted that the Commission's determination is of the structure plan itself, that is, whether the structure plan is to be adopted for the purposes of the Scheme.  If the Commission approves the structure plan, its determination of the status of the plan is "conclusive", and has "final effect for the purposes of TPS7".  Mr McMurdo submitted that the legislative purpose is that the Commission has "an overarching role to adopt or approve the structure plan when it is refused" by the Council.

  5. Mr Bydder, for the Commission, acknowledged that, on one view, cl 5.9.13 provides two alternative mechanisms for submitting a structure plan to the Commission for its consideration.  However, he submitted that "in describing identical activities, one would expect the use of identical words".  He contended that the use of different words, namely "endorsement" and "determination", suggests that the Commission is undertaking different activities under each of the two subclauses, not the same activity.  He noted that, whereas "endorse" is relevantly defined in the Oxford English Dictionary On-line to mean "to confirm, sanction, countenance" and "to declare one's approval of", the word "determine" is relevantly defined to mean "to bring to an end a dispute, controversy or doubtful matter; to conclude, settle, decide, fix" and "to direct to some end or conclusion; to come to some conclusion".

  6. In his oral submissions, Mr Bydder also placed reliance on the use of the expression "an aggrieved applicant" in the provision which permits such a person to submit a structure plan to the Commission for its determination.  These words "echo to some extent" the qualification of a person to seek review by the Tribunal of a determination of the Commission: cl 5.9.13.12.

  7. Finally, Mr Bydder submitted that, if the construction advocated by WA Plantation Resources and the Commission were not adopted, "the structure plan would be approved for the purposes of part of the Scheme, but not for the purposes of another part of the Scheme".  There is "no warrant in the Scheme for this inconsistency".

  8. In consequence of these textual indications, Mr Bydder contended that the Commission's determination is sufficient to bring the structure plan into effect without the need for the Council to adopt the structure plan.  He submitted that, if the Commission determines that the structure plan should not be approved, the proponent will be entitled to seek review of the Commission's determination.  This construction does not render otiose the right to seek a review of the Council's decision under cl 5.9.13.13.  The right to seek such review would properly be exercised where both the Commission and the Council decided that the structure plan should not be approved.  In that case, the views of both the Commission and the Council would assist the Tribunal in considering the structure plan on review of their decisions.     

  9. Although aspects of the argument put on behalf of WA Plantation Resources and the Commission are attractive, the argument is ultimately not persuasive.  It is correct that the word "aggrieved", which is used to describe the qualification of an applicant to submit a structure plan to the Commission for its determination, is often used in the context of conferring a right to appeal against, or seek review of, an administrative decision.  It is used in that context in subclause 13 of cl 5.9.13 and cl 10.11 of TPS7.  However, the use of that word does not necessarily indicate that the Commission's determination is to be in relation to the same issue as was the decision which gave rise to the grievance.  In the wider context of cl 5.9.13, the word "aggrieved" simply expresses the qualification on the part of an applicant to be able to submit the structure plan to the Commission, where its determination (whether positive or negative) is a necessary condition for the applicant to be able to seek review before the Tribunal in relation to the Council's failure to adopt the structure plan: cl 5.9.13.13.

  10. Similarly, although there is logic and attraction in Mr Bydder's submission that the use of different words suggests that the activity that the Commission undertakes under subclause 7 of cl 5.9.13 differs from the activity that it undertakes under subclause 11, the use of different words is, in this case, readily explicable.  The word "endorsement" is used in the first subclause in circumstances where the Council proposes to adopt the structure plan.  A word having the meaning of "confirmation, sanctioning or countenancing" is apposite in that context.  However, the circumstances of submission of the structure plan to the Commission in the second subclause are entirely different.  There, the Council has not adopted the structure plan.  It would make little sense to use the word "endorsement" where the Council does not propose to adopt the structure plan, and indeed has refused to do so.  Read in the context of the clause as a whole, and in particular the subclause which confers a right to seek review in relation to the Council's failure to adopt a structure plan (cl 5.9.13.13), the expression "its determination" means "its determination as to whether it endorses the structure plan if adopted by the Tribunal on review of the Council's non-adoption".

  11. As noted earlier, subclause 13 provides that "an applicant shall not lodge an appeal under cl 10.11 [to the Tribunal] in relation to the local government's failure to adopt a structure plan unless the applicant has first obtained a determination of the Commission in accordance with clause 5.9.13.11".  WA Plantation Resources and the Commission were unable to meaningfully explain or address this subclause in a manner consistent with their suggested construction of the clause as a whole.  The subclause clearly contemplates that there is utility in an appeal (now a review) in relation to the Council's failure to adopt a structure plan, and that "a determination of the Commission", in accordance with subclause 11, is a necessary condition precedent to the lodgement of an appeal.  However, if, on the proper construction of the clause, the Commission's determination were, to quote its written submissions, "sufficient to bring the structure plan into effect without the need for the [Council] to adopt the structure plan", there would be no need to confer a right of appeal or review in relation to the Council's failure to adopt the structure plan, much less to impose a condition precedent to such an appeal or review that the applicant first obtain "a determination of the Commission".

  12. The words "a determination of the Commission" contemplate either a positive or a negative determination in relation to the structure plan.  If the construction advanced by WA Plantation Resources and the Commission were correct, and if the Commission's "determination" were positive, there would be no purpose served by subclause 13.  Equally, if the Commission's determination were negative in relation to a structure plan, there would be no purpose served by the subclause, as subclause 12 confers a right to seek review of the Commission's determination.  The Commission's argument that subclause 13 is explicable on the basis that, where both the Council and the Commission decide that a structure plan should not be approved, the views of both authorities would assist the Tribunal in considering the structure plan on review of their decisions, is inconsistent with its principal submission that its function of determination amounts to the adoption of the structure plan by the Council.  If that were so, there would be no need to seek review of the Council's decision, only of the Commission's determination.

  13. The construction advocated by the Council is correct in light of subclause 13.  A further, textual indication which supports this construction is that, whereas the Scheme uses the word "adopt" (with an appropriate suffix) to describe the Council's function in relation to a structure plan and the status of an operative structure plan in each of subclauses 7, 8, 9, 11, 13 and 14 of cl 5.9.13, and in subclause 3.1 of cl 6.2.1, it only ever uses the words "endorsed" or "determination" to describe the function of the Commission in relation to such a plan: cl 5.9.13.7, cl 5.9.13.9 and cl 6.2.1.3.1 ("endorsed") and cl 5.9.13.11, cl 5.9.13.12 and cl 5.9.13.13 ("determination").  Had the legislative intention been to confer an overarching function on the Commission, under which, where the Council did not adopt a structure plan, the Commission's determination would make the structure plan operative for the purposes of the Scheme, it would have been anticipated, in this context, that the Scheme would have used the word "adoption" rather than "determination" in subclause 11 of cl 5.9.13.

  14. The answer to the second preliminary issue identified at par [5] above is "no".  The approval of the structure plan by the Commission did not constitute or amount to adoption of it by the Council.  Contrary to the Commission's submission, this does not result in an "inconsistency".  It is apparent from subclauses 7, 9 and 13 of cl 5.9.13, and from cl 6.2.1, that the Scheme creates a two-stage process for a structure plan to become operative.  It requires both "adoption" by the Council and "endorsement" by the Commission, although the adoption cannot take place until the endorsement.  Each stage of the process is necessary, but not sufficient, for the structure plan to become operative.  There is, therefore, no inconsistency in the Commission making a positive determination in relation to a structure plan and the Council making a negative determination.  The applicant, in such a situation, has a right to seek review by the Tribunal of the Council's non-adoption of the structure plan.  Alternatively, WA Plantation Resources submits, the Tribunal has power to adopt a structure plan on behalf of the Council in the course of undertaking a review of the Council's determination of a planning application.  I now turn to consider that contention, which is the third preliminary issue identified at par [5] above.

Does the Tribunal have power to adopt a structure plan in reviewing the determination of a planning application?

  1. WA Plantation Resources contends that the Tribunal has power, under s 29(1) of the SAT Act, to adopt the structure plan in these proceedings. Section 29(1) is in the following terms:

    "The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision."

  2. Mr Flint submitted that the "reviewable decision", for the purposes of s 29(1) of the SAT Act, is the decision of the Council to refuse the application for planning approval. The adoption or otherwise of the structure plan "is a different process from the determination of the application for planning approval". He submitted that this process is not a function or discretion corresponding to that exercisable by the Council in refusing the application for planning approval.

  3. In McDougall v Warringah Shire Council (1993) 30 NSWLR 258, the New South Wales Court of Appeal considered the extent of jurisdiction of the Land and Environment Court to exercise, in accordance with s 39(2) of the Land and Environment Court Act 1979 (NSW), the "functions and discretions" of a council on an appeal from a decision of that council. Specifically, the case raised the question of whether, on an appeal to the Land and Environment Court from a refusal to approve a building application, the Court had power to vary or revoke a pre-existing council resolution made in relation to the property the subject of the application under s 289 of the Local Government Act 1919 (NSW). Section 39(2) of the Land and Environment Court Act provided as follows:

    "In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal."

  4. Having set out the operative terms of s 39(2) of the Land and Environment Court Act, Mahoney JA observed, at 270, as follows:

    "Therefore, the case depends upon two things - what is the 'matter' the subject of the appeal; and whether the function of the Council under section 289(e) is a function 'in respect of' that matter."

  5. A similar two-stage enquiry to that identified by Mahoney JA is to be undertaken under s 29(1) of the SAT Act, namely:

    1.        What is the "reviewable decision"; and

    2.Whether the function and discretion of the Council to adopt a structure plan or development guide plan under TPS7 was exercisable by it in making the reviewable decision; see Empire Securities Pty Ltd and Ors and Western Australian Planning Commission [2005] WASAT 98 at [54].

  6. A "reviewable decision" is a decision of an original decision-maker which the Tribunal has jurisdiction to review: SAT Act s 17.  As Mr Flint correctly submitted, the "reviewable decision" in this case is the Council's determination of the planning application.  That determination involved a development assessment.  In significant contrast, the Council's function and discretion to adopt a structure plan involves "strategic planning … in relation to land use options" which provides "a framework to guide Planning Consent applications": TPS7 cl 6.2.1.1 and cl 6.2.1.2.1.

  7. In Commonwealth of Australia v Randwick City Council [2000] NSWLEC 276, Talbot J considered a number of preliminary issues in relation to a development appeal which was pending before the Land and Environment Court. One of the issues was whether the Court could vary an adopted master plan or consider and adopt a further master plan, in relation to the land the subject of the development application, under s 39(2) of the Land and Environment Court Act.  At par [10], his Honour noted that the role of a master plan, under the relevant provision of the planning instrument, was to ensure that sites with an area in excess of 4000 square metres were "to be the subject of comprehensive site specific strategic planning in order to outline long-term proposals for the development of the land and established design principles after a detailed site analysis".  A master plan, therefore, had a similar strategic planning function to that served by a structure plan under TPS7.  Furthermore, the content of both types of plans are required to be taken into account in any planning assessment in relation to land within the plan area, although, whereas subclause 14 of cl 5.9.13 requires the Council to "have regard to" an adopted structure plan, the planning instrument considered in Commonwealth v Randwick (supra) required that any development in respect of the land the subject of the plan "is not to be inconsistent with the provisions of" the plan: see [11].

  8. In rejecting the applicant's contention that the Court could exercise the functions and discretions of the Council in respect of the adoption or variation of a master plan, his Honour reasoned, at [38], as follows:

    "[T]he nature of the function in respect of the preparation, consideration, rejection or adoption of a master plan is a strategic planning process quite distinct from the determination of the development application itself.  It is not at the heart of the matter the subject of the appeal.  It would not be open to the Court to act in respect of the adoption or variation of a master plan any more than it could act in respect of the provisions of a development control plan."

  9. I have come to the same conclusion as that reached by Talbot J in the present, analogous statutory context.  It is clear from subclauses 8 and 14 of cl 5.9.13, and subclauses 1, 2 and 4 of cl 6.2.1, that the function and discretion involved in adoption of a structure plan is conceptually and temporally distinct from the making of the reviewable decision.  Subclause 8 of cl 5.9.13 refers to "the further requirement" to obtain planning approval "for any development … subsequently proposed within the area covered by the structure plan".  Subclause 14 of cl 5.9.13 requires the Council to have regard to any adopted structure plan "when determining applications for planning approval within a designated structure plan area".  Clause 6.2.1 states that structure plans are "a framework to guide" planning applications.

  10. Moreover, the Council must approve a structure plan (with the Commission's endorsement) before it can grant any planning application: cl 6.2.1.3.1.  Subclause 8 of cl 5.9.13 contemplates that an application for planning approval will only be proposed and considered "subsequently" to the adoption of a structure plan.

  11. Therefore, the function and discretion of the Council to adopt a structure plan was not exercisable by it in making the reviewable decision the subject of these proceedings. Rather, its function and discretion to adopt the structure plan had to be positively exercised before it could grant planning approval to the planning application. The answer to the third preliminary issue identified at par [5] above is "no". The Tribunal does not have power under s 29(1) of the SAT Act to adopt a structure plan or development guide plan.

Conclusion

  1. On the proper construction of cl 6.1.1 and cl 6.2.1 of TPS7, the proposed woodchip mill is not capable of approval in the absence of a structure plan or development guide plan that has been adopted by the Council and endorsed by the Commission.  The site of the proposed development is within a Development Investigation Policy Area shown on the Scheme Map for TPS7.  The preparation of that Map by the Council and its approval by the Minister necessarily involved a consideration that the Area was "suitable for further investigation for urban development".  Those words do not define a subset of Development Investigation Policy Areas in respect of which a structure plan or development guide plan is required to be adopted by the Council and endorsed by the Commission before development is permitted.  It is not open to challenge the designation of an area as a Development Investigation Policy Area in these proceedings.

  2. The Scheme envisages a two-stage process for a structure plan to become operative.  It must be both adopted by the Council and endorsed by the Commission, although the endorsement must take place first.  If the Council has not adopted a structure plan, the person who submitted it may submit it to the Commission for its determination as to whether it endorses the structure plan if adopted by the Tribunal on review.  On the proper construction of the Scheme, a positive determination by the Commission in relation to a structure plan does not constitute or amount to an adoption of the structure plan by or on behalf of the Council.  While a positive determination by the Commission is necessary in order for a structure plan to become operative under the Scheme, it is not sufficient for it to do so.

  3. Finally, the Tribunal does not have power under s 29(1) of the SAT Act to adopt a structure plan in these proceedings, which involve an application for review of the determination by the Council of a planning application. 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. Although the Tribunal has functions and discretions corresponding to those exercisable by the Council "in making the reviewable decision", the function and discretion of consideration and adoption of the structure plan was not exercisable by the Council in the determination of a planning application. However, the Scheme confers a right to apply for review by the Tribunal of the Council's decision not to adopt the structure plan.

Order

  1. The Tribunal makes the following order:

    The preliminary issues identified at par [5] of the Tribunal's reasons for decision dated 5 August 2005 are answered as follows:

    1.        "No".

    2.        "No".

    3.        "No".

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D PARRY, SENIOR MEMBER

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Cases Cited

4

Statutory Material Cited

3

Cody v J H Nelson Pty Ltd [1947] HCA 17
Tuilau v Minister for Immigration and Ethnic Affairs [2000] FCA 96
Tuilau v Minister for Immigration and Ethnic Affairs [2000] FCA 96