WEST AUSTRALIAN SHALOM GROUP INC. and CITY OF JOONDALUP - [2023] WASAT 63

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION:   WEST AUSTRALIAN SHALOM GROUP INC. and CITY OF JOONDALUP [2023] WASAT 63
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   20 JUNE 2023
DELIVERED          :   17 JULY 2023
FILE NO/S:   CC 489 of 2023
BETWEEN:   WEST AUSTRALIAN SHALOM GROUP INC.
Applicant
AND
CITY OF JOONDALUP
Respondent

Catchwords:

Building - Application for occupancy permit - Preliminary issue - Whether approvals under Planning and Development Act 2005 (WA) limited to approvals for structures - Whether permit authority can 'go behind' planning advice that development approval is not required - Whether exemption from approval under local planning scheme means development also exempt for purposes of region planning scheme

Legislation:

Building Act 2011 (WA), s 3, s 9, s 14(1), s 14(2), s 20, s 20(1)(n), s 37, s 38, s 41, s 42(1)(a), s 43, s 45, s 46, s 46(2), s 49, s 54, s 54(2), s 54(3), s 55, s 56, s 56(2), s 57, s 57(2)(c), s 58, s 58(1), s 58(1)(b), s 58(1)(j), s 58(2), s 58(3), s 59(1), s 59(2), s 60, s 61, s 62, s 62(2)(a), s 62(2)(b), s 62(3), s 121, s 121(1)(a), Pt 2, Pt 3, Pt 4, Pt 5, Div 2, Div 3, Div 4
Building Bill 2010 (WA)
Building Regulations 2012 (WA), reg 15, reg 18(2)(b), reg 35, reg 36, reg 36A, reg 37, reg 37(b), reg 38, reg 43
City of Joondalup Local Planning Scheme No 3
COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA), s 32
Health (Aquatic Facilities) Regulations 2007 (WA), Pt 2, Div 1
Health (Miscellaneous Provisions) Act 1911 (WA), s 107(2)
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 12(2), Pt 4
Metropolitan Region Scheme, cl 5, cl 10, cl 21, cl 24(1), cl 24(2), cl 26, cl 26(1), cl 28, cl 32, Pt III
Metropolitan Region Town Planning Scheme Act 1959 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, Pt 4, cl 61, cl 78H
Planning and Development Act 2005 (WA), s 14(h), s 14(i), s 14(l), s 162, Pt 10, Pt 11A
State Planning Policy 7.3 Residential Design Codes Volume 1
Town Planning and Development Act 1928 (WA)

Result:

Preliminary issues answered

Category: A

Representation:

Counsel:

Applicant	:	Ms B Moharich
Respondent	:	Mr P Wittkuhn

Solicitors:

Applicant	:	Moharich & More
Respondent	:	McLeods

Cases referred to in decision:

Australian Securities and Investments Commission v Citrofresh International Ltd [2007] FCA 1873; (2007) 164 FCR 333
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Edwards v Department of Planning and Infrastructure [2007] WASAT 101; (2007) 155 LGERA 1; (2007) 52 SR (WA) 328
H2 Migration & Education Pty Ltd v GU [2023] WASC 199
Miller and City of Melville [2012] WASAT 156
Mohammadi v Bethune [2018] WASCA 98
S&L Lenz Pty Ltd v Shire of Serpentine Jarrahdale [2017] WASC 191
Warr and Town of Cambridge [2020] WASAT 126
West Australian Shalom Group Inc. and City of Swan [2018] WASAT 36

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These reasons deal with three preliminary issues. The matter involves an application for an occupancy permit pursuant to s 49 of the Building Act 2011 (WA) (Building Act) lodged by West Australian Shalom Group Inc. (Shalom or the Applicant). The Applicant seeks to, in effect, permanently change the use of land it owns at 254 Camberwarra Drive, Craigie (Land) from an aged care facility to what it says is a 'recovery accommodation facility'.
The occupancy permit was refused by the City of Joondalup (City or Respondent) on 11 April 2023 on the basis that the City, as 'permit authority' under the Building Act, was not satisfied that the Applicant had met the approval requirements under the Planning and Development Act 2005 (WA) (PD Act), as required under s 58(1)(j) of the Building Act, read with reg 37(b) of the Building Regulations 2012 (WA) (Building Regulations).
In short, the City says approval under the Metropolitan Region Scheme (MRS) is required for the proposed change in use. Absent that approval, the City is not satisfied that the requirements of s 58(1)(j) of the Building Act have been met.
The Applicant says that no approval under the MRS is necessary and therefore, the City erred in refusing the occupancy permit.
The parties, together with his Honour, Deputy President Jackson, have formulated three preliminary issues that I am required to address. Those issues are:
(1)Is the requirement in s 58(1)(j) of the Building Act for authorities to be obtained 'in relation to the building or incidental structure', limited in respect of the PD Act to development approvals for the construction of the building or incidental structure?
(2)Does a permit authority (or the Tribunal on review), when determining an application for an occupancy permit pursuant to s 58 of the Building Act, have the power to 'go behind' advice given by a planning authority to the effect that approval is or is not required under the PD Act, and determine the correctness of that advice as a matter of law?
(3)Where development approval is expressly not required for development under a local planning scheme (and specifically, under Sch 2, cl 61 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (DeemedProvisions)), is this to be construed as being an approval given by the local authority for the purposes of cl 26(1) of the MRS?
For the reasons that follow, my answers to these preliminary issues are as follows:
1.Issue 1: No. Section 58(1)(j) of the Building Act applies according to its terms. It is not limited to development approvals for the construction of buildings and/or incidental structures and includes approvals relating to use.
2.Issue 2: Yes. I agreed with the parties that it is permissible for a permit authority to go behind advice given by a planning authority especially, as is the case here, when the City is 'responsible authority' for the purposes of the MRS.
3.Issue 3: No. Being an exempt development is not the same, and does not have the same effect, as an approved development.
My detailed reasons follow.

Agreed facts

The following facts are agreed. Accordingly, I find as follows.
The Land is more particularly described as Lot 16 on Diagram 5076 being the whole of the land comprised in Certificate of Title Volume 1451 Folio 590.
Shalom became the registered proprietor of the Land on 16 January 2023.
The Land:
(a)has an approximately eastern frontage to Camberwarra Drive;
(b)is an irregular-shaped polygon in terms of its configuration;
(c)has an area of 3,153m²;
(d)is zoned 'Urban' under the MRS;
(e)is zoned 'Private Community Purposes' under the City of Joondalup Local Planning Scheme No 3 (LPS 3). Community purpose is a permitted 'P' use in LPS 3; and
(f)abuts Lot 17 on Deposited Plan 50675, Certificate of Title Volume 1451 Folio 591, which:
(i)has the street address 252 Camberwarra Drive, Craigie;
(ii)is also owned by Shalom; and
(iii)has an area of 2,180m².
Since approximately the late 1970s, the Land has been used, in broad terms, for aged care as well as related purposes such as a chapel and convent. A detailed site history is not relevant for present purposes. Several approvals, under both the local town planning scheme and the MRS, have been sought and obtained in that history.

The most recent occupancy permit in respect of the Land was an occupancy permit for residential aged care (Mercyville Hostel), dated 20 April 2016.
The uses of the Land for residential aged care, convent, and chapel, ceased in recent years.
In September 2022, Shalom (together with its lawyers) sought written planning advice from the City as to the potential use of the Land for a recovery accommodation facility.[1] Flint Legal, acting pro bono, put to the City its views that approval was not required under LPS 3 to use the Land for a 'community purpose' based on the decision of Parry J in West Australian Shalom Group Inc. and City of Swan (Shalom 2018).[2]
[1] Affidavit of Christopher David Leigh (Exhibit 3), Attachment CDL 4 to CDL 6.
[2] West Australian Shalom Group Inc. and City of Swan [2018] WASAT 36.
The City, in its response of 11 October 2022 agreed that if the Applicant used the premises as it intended to, the use would be a community purpose for the purposes of LPS 3, based on Shalom 2018. As a result, approval under LPS 3 was not required as only internal building works were proposed.
The City also indicated that it might take the view that Shalom 2018 was erroneously determined and also noted it was not bound by that decision, as it was not a party. The City also stated that it was of the view that approval for the change in use would be required under the MRS. The City explained that an exemption from the need to obtain development approval under a local planning scheme did not translate to an exemption under the MRS.
In an assessment under the MRS, the City indicated that it would have to weigh amenity considerations, as the Land is adjacent to 'vulnerable uses' such as a school and child care centre.
From 9 January 2023 to 22 February 2023, based on discussions with Shalom, the City understood the Applicant to have agreed that approval was required under the MRS and that an application was being prepared.[3]
[3] Exhibit 3, Attachment CDL 8.
On 6 February 2023, Moharich & More, also acting pro bono for Shalom, sent a letter to the Chair of the Western Australian Planning Commission (WAPC) and to an employee of the Department of Planning, Lands and Heritage (Department). That letter referred to a recent meeting between the Chair and Moharich & More. I digress to observe that it can be reasonably inferred, based on the evidence before me, that the City was not invited or represented at that meeting. Nor is there any evidence that the Chair or the Department sought comment from the City as to the basis of its position in relation to the proposed change in use of the Land.
In its letter to the WAPC, Moharich & More explains its position that the proposed change in use does not require approval under the MRS because, it says, no 'additional' development is proposed and also because the use is exempt from approval under LPS 3. Furthermore, the letter requests that if the WAPC reaches the view that the City is correct, and approval under the MRS is required, that the WAPC withdraw the City's delegation under the MRS and determine such application itself.[4]
[4] Application for Review (Exhibit 2), pages 15 to 17.
On 16 February 2023, a letter signed by the Chair of the WAPC was sent to Moharich & More (WAPC Letter). The authority for the Chair to sign the WAPC letter is not clear. By that I mean the letter speaks of no meeting of the WAPC to formally consider the matter nor is it suggested he is writing under a delegated power. Be that as it may, the WAPC Letter explains:
…
With regard to the matter of whether a separate development approval is required under the MRS, as you rightly point out in your letter, cl 26(1) of the MRS would seem to be particularly relevant in that a decision taken under a local planning scheme is deemed to be a decision under the MRS.
With the above in mind, the [WAPC] is of the view that the exemption from the need for an approval to undertake Community Purposes on this site, should be taken to be an exemption from the need to obtain a separate approval under the MRS.[5]
[5] Exhibit 3, Attachment CDL 9.
On 22 February 2023, Moharich & More, emailed the City saying it had obtained 'advice' from the WAPC that no approval under the MRS was necessary for the change in use of the Land.
On or about 23 March 2023, Shalom lodged an Application for Occupancy Permit in respect of the Land. It was accompanied by a Certificate of Building Compliance (CBC) and other materials.[6]
[6] Exhibit 3, Attachment CDL 1.
Subsequent to receipt of the WAPC Letter, the City issued correspondence to the WAPC and the Minister for Planning, by which the respondent requested those entities reconsider the WAPC's opinion that development approval under the MRS was not required.
On 5 April 2023, Ms Moharich, from Moharich & More, spoke with the City's Director of Planning and Community Development about Shalom's pending application for an occupancy permit. The director stated (as was the case) that the Respondent was awaiting reconsideration by the WAPC of its position that development approval was not required under the MRS.
Ms Moharich also requested that the Respondent issue, by 3.00 pm on Thursday 6 April 2023, a formal written refusal of an occupancy permit.

Proceedings in the Tribunal

Shalom commenced the current review proceeding on 6 April 2023, prior to the issue of formal written refusal of the occupancy permit. The Respondent takes no issue with the validity of the Application for Review.
The Respondent issued the written refusal to the occupancy permit on 11 April 2023.[7]
[7] Exhibit 3, Attachment CDL 3.
On 13 April 2023, the State Solicitor's Office (SSO), acting for the WAPC, issued a letter of that date to the Tribunal, copied to the solicitors for Shalom and the Respondent.
On 18 April 2023, upon the motion of counsel for the Respondent, Mr Wittkuhn, the Tribunal made orders including the following:
…
4.Unless by 21 April 2023 the Western Australian Planning Commission lodges and serves submissions in opposition, the Commission is joined as a party with effect from 22 April 2023.
5.Should the Western Australian Planning Commission wish to file submissions with respect to the matter it is to inform the Tribunal of that by 21 April 2023.
On 21 April 2023, the SSO emailed to the Tribunal, and copied to the parties' solicitors, a submission by which it opposed joinder as a party.
On 11 May 2023, the SSO issued a letter to the Tribunal and copied it to the solicitors for the parties. That letter seeks to resile from the conclusion in the WAPC Letter that no approval was required under the MRS. The WAPC explains:
…
Contrary to the views previously expressed [in the Chairman's letter of 16 February 2023], cl 26(1) of the MRS may not have the effect that an exemption from the requirement to obtain approval under a local planning scheme is deemed to be an exemption from the need to obtain a separate development approval under the Metropolitan Region Scheme (MRS), for a particular proposed development.
The Supreme Court in S&L Lenz Pty Ltd v Shire of Serpentine Jarrahdale [2017] WASC 191 held at [31] that if development approval is required under clause 24 of the MRS, then there are (at least) two preconditions to the clause 26(1) deeming provision having effect:
(1)an application for approval under the MRS (in the form set out in Form 1 to the MRS) is submitted to the local authority; and
(2)"an approval" be "given" by the local authority for the development under the local planning scheme. (It is this "approval" that will thereafter be deemed by clause 26(1) to be an approval under the MRS).
It appears that neither of these preconditions is satisfied in relation to [Shalom's] proposed use of the premises at 252-254 Camberwarra Drive, Craigie.
Further, the prospect that clause 26 does not operate in circumstances in which no "approval" is required to be "given" by the local authority under its local planning scheme was recently recognised by the legislature, by its enactment of section 32 of the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA)[.]
At a directions hearing on 12 May 2023, before Deputy President Judge Jackson, Mr Wittkuhn, again moved for an order that the WAPC be joined as a party. Counsel for the WAPC, Mr Ian Repper, opposed such joinder. His Honour declined to order the joinder of the WAPC.
Also, at the directions hearing on 12 May 2023, after hearing from counsel as to the scope and terms of potential preliminary issues, Deputy President Judge Jackson ordered that three issues set out at [5] above be determined as preliminary issues.

Issue 1

Is the requirement in s 58(1)(j) of the Building Act for authorities to be obtained 'in relation to the building or incidental structure' limited in respect of the PD Act to development approvals for the construction of the building or incidental structure?

The scheme of the Building Act as it relates to occupancy permits

The Building Act is an Act, inter alia, to provide for the use and maintenance of, and requirements in relation to, existing buildings.

Building permits

Part 2 of the Building Act deals with building and demolition permits. The general principle is that a person must not do building work without a building permit being in effect.[8] The term 'building work' is defined.[9]
[8] Building Act, s 9.
[9] Building Act, s 3.
Division 2 of Pt 2 provides for the making of certified[10] or uncertified applications[11] for building permits. Building permits are granted pursuant to s 20 of the Building Act. Division 3 deals with the requirements of a building or demolition permit. Division 4 sets out the duration of such a permit.

Building standards

[10] Building Act, s 14(1).

[11] Building Act, s 14(2) read with Building Regulations, reg 15.

Part 3 deals with Building Standards. All buildings and all demolition work must comply with each applicable building standard.[12]

Occupancy permits

[12] Building Act, s 37 and s 38.

Part 4 of the Building Act deals with, relevantly, occupancy permits. The occupancy permit sets out the approved use of the building and its classification under the National Construction Code (NCC).
In general terms, an occupancy permit is required to be in effect before a building may be occupied.[13] An exception to this is, inter alia, a building exempt by regulations made under Pt 5. The Building Regulations provide, relevantly, that a Class 1 or a Class 10 building does not require an occupancy permit.[14]
[13] Building Act, s 41.
[14] Building Regulations, reg 43. A Class 1 building is a dwelling; a Class 10 building is a non-habitable building or structure.
Occupancy permits must be displayed[15] and the occupation of the building must comply with the occupancy permit.[16] It is an offence to do otherwise. Regulations may provide for matters relating to, inter alia, the amenity or sustainability of buildings requiring occupancy permits.[17]
[15] Building Act s 42(1)(a), read with Building Regulations, reg 35.
[16] Building Act, s 43.
[17] Building Act, s 45.
Division 2 of Pt 4 of the Building Act deals with the different kinds of occupancy permits. These include applications for a completed building[18] as well as, as is the case here, an application to replace a current occupancy permit for an existing building if the person proposes either or both of the following:
(a)that the building is to be used, on a permanent basis, in a way that is different from the use authorised by the current occupancy permit;
(b)that the building's classification is to be different from that set out in the current occupancy permit.[19]
[18] Building Act, s 46.
[19] Building Act, s 49.
Division 3 of Pt 4 of the Building Act relates to the making of, and dealing with, applications for occupancy permits. Section 54 sets out the requirements for the making of an application for an occupancy permit. Section 55 authorises the permit authority to request information that it requires to determine the application.[20] Such information may need to be verified by statutory declaration.
[20] Read with Building Regulations, reg 36A.
Section 56 deals with applications for a certificate of construction compliance (CCC). A CCC is the formal certification from a registered builder where an occupancy permit is required. The CCC confirms that the building meets the drawings, technical documents and applicable building standards prescribed in the certificate of design compliance (CDC). A CDC is a declaration that all drawings, specifications and technical documents for a proposed building or structure satisfy the applicable standards.

Section 57 relates to applications for a CBC. A CBC is the formal certification from a registered building surveyor that an existing building or structure satisfies the applicable building standards. A CBC is required where there is an application for an occupancy permit involving a change in building use or classification.[21]
[21] As is clear from s 58(1)(b) of the Building Act.
Section 58 deals with the grant of an occupancy permit. Section 58(1) provides that a permit authority to which the application is made must grant the occupancy permit if it is satisfied of a range of matters. In instances where an application is accompanied by a CBC (to change the use of an existing building), one of the requirements that the permit authority must be satisfied of is s 58(1)(j) which provides that:
… the applicant has obtained in relation to the building or incidental structure each authority under a written law[22] that is prescribed for the purposes of this paragraph.[23]
[22] The term 'authority under a written law' is defined in s 3 to 'includes an approval, licence, registration, right, permit or exemption granted under a written law'.
[23] Building Act, s 58(1)(j).
For the purposes of s 58(1)(j), the following authorities under written laws, as relevant to the building or incidental structure, are prescribed:
(a)an approval required under the Health (Miscellaneous Provisions) Act 1911 section 107(2)(a) or (b);
(b)an approval required under the Planning and Development Act 2005;
(c)an approval required under the Health (Aquatic Facilities) Regulations 2007 Part 2 Division 1;
(d)an approval required under the Local Government (Uniform Local Provisions) Regulations 1996 regulation 12(2);
(e)an approval required under the Swan Valley Planning Scheme.[24]
[24] Building Regulations, reg 37.
A permit authority must not grant or modify the occupancy permit applied for unless it is satisfied as to each of the matters mentioned in s 58(1).[25]
[25] Building Act, s 58(2).
A permit authority may also refuse to grant or modify the occupancy permit or grant the building approval certificate, if it appears to the permit authority that there is an error in the information, or a document provided as part of the application.[26]
[26] Building Act, s 58(3).
The permit authority has 10 days in which to grant the occupancy certificate.[27] If it fails to make a decision within this time, the permit authority is taken to have refused to grant the occupancy permit.[28]
[27] Building Act, s 59(1) read with Building Regulations, reg 38.
[28] Building Act, s 59(2).
A permit authority must give notice of a decision not to grant an occupancy certificate. Such notice must:
(a)record the grounds and reasons for which a decision was made to refuse to grant the occupancy permit; and
(b)give written notice of the decision no later than 5 days after it has been made; and
(c)inform the person of the right to review the decision in the Tribunal under s 121 of the Building Act.[29]
[29] Building Act, s 60.
An occupancy permit must, inter alia, set out the building to which it applies, its classification and the use to which the building may be put.[30]
[30] Building Act, s 61.
A permit authority may impose conditions on an occupancy permit.[31] A condition must relate to the building or incidental structure in question, rather than to buildings or incidental structures of that kind generally.[32] Such conditions cannot modify the CBC that accompanied the application.[33] Conditions can be added, varied or revoked while the occupancy permit remains in effect.[34]

Review right

[31] Building Act, s 62.

[32] Building Act, s 62(2)(a).

[33] Building Act, s 62(2)(b).

[34] Building Act, s 62(3).

A right of review is available against a permit authority's decision to refuse an occupancy permit.[35]

Applicant's submissions on Issue 1

[35] Building Act, s 121(1)(a).

The Applicant submits that the answer to Issue 1 is 'yes'. That is to say that s 58(1)(j), read with reg 37(b), has the effect that the only authorities relevant under the PD Act are those that relate to the construction of buildings or incidental structures.[36]
[36] Applicant's Written Legal Submissions on Preliminary Issues, para 2.
The Applicant stresses that there is already an occupancy permit in place for the Land and that permit is for the entirety of the building. The occupancy permit provides that the building is classified as a Class 3 building under the Building Code of Australia (BCA) and its 'use' is as a 'Residential Aged Care' facility. Under the BCA, a building is classified according to its purpose. Class 3 buildings include boarding houses, residential care buildings and accommodation for the aged, children or people with a disability.
In this case, approval is sought to for a Class 3: Recovery Accommodation Facility.
The Applicant submits that there is no correlation between the concept of 'use' in a planning law sense, and the concept of 'use' or 'purpose' in the context of building legislation.[37] By way of an example, an 'assembly building' under the NCC encompasses theatres, places of worship, school halls and a night club.
[37] Applicant's Written Legal Submissions on Preliminary Issues, para 12.
The Applicant contends that the use of the land as a recovery accommodation facility presents a lower risk profile than the historic use of aged care, because occupants are neither frail nor aged.

Occupancy permits for completed buildings

The Applicant draws attention to applications for occupancy permits made under s 46 of the Building Act for a completed building. Pursuant to s 54(2), an application for an occupancy permit for a completed building must be accompanied by a CCC that complies with s 56(2). Section 56(2) provides that a CCC that accompanies an application under s 46(2) must state that:
(a)the building has been completed in accordance with the plans and specifications that are specified in the applicable [CDC] for each applicable building permit; and
(b)the building otherwise complies with each applicable building permit including each condition that applies to the permit; and
(c)the building in its current state is otherwise suitable to be used in the way proposed in the application.
(Emphasis added)
In issuing a building permit under s 20(1)(n), the permit authority must be satisfied, inter alia, that the Applicant has obtained in relation to the 'building work' each authority under a written law that is prescribed. Regulation 18(2)(b) includes the following authorities:
if the building work is development as defined in [s 4 of the PD Act], each approval required under that Act in relation to the work.
The Applicant submits that there is no relevant prescribed work in the Building Regulations which would extend the definition of 'building work' to the concept of 'use' as that term is used in the definition of 'development' in the PD Act.[38]

Replacement occupancy permits

[38] Applicant's Written Legal Submissions on Preliminary Issues, para 20.

Pursuant to s 54(3) of the Building Act, an application for a replacement occupancy permit must be accompanied by a CBC that complies with s 57. Section 57(2)(c) requires that the certificate must state that the building complies with each authority under a written law that is prescribed. Regulation 36 provides that for the purposes of s 57(2)(c), the authorities required under a written law, as relevant to the building or incidental structure, include an approval required under the PD Act.
In determining whether to grant an occupancy permit, a permit authority must be satisfied as to all the matters listed in s 58(1).

The meaning of 'as relevant to the building or incidental structure'

The gravamen of the Applicant's submissions on Issue 1 is that the words 'as relevant to the building or incidental structure' in the chapeau of reg 37 limits the application of the term 'an approval required under the [PD Act]' to any approval required for the building itself, not the approved use.[39]
[39] Applicant's Written Legal Submissions on Preliminary Issues, para 28.
The Applicant submits that this is consistent with the other prescribed authorisations under reg 37 which include:
(a)approval under the Health (Miscellaneous Provisions) Act 1911 (WA) (Health Act) for the installation of an apparatus for the treatment of sewerage;
(b)approval under the Health (Aquatic Facilities) Regulations 2007 (WA), Pt 2, Div 1 for various types of aquatic facilities and water bodies; and
(c)approval under reg 12(2) of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (LG ULP Regulations), which relates to the construction of crossovers.
In determining an application for an occupancy permit, the only applications which are required to be accompanied by a CBC are those that are 'in relation to the building or structure'. However, the same obligation does not exist in relation to a 'completed building'. In the context of a completed building, confirmation that a use approval under the PD Act has been issued is not required.[40]
[40] Applicant's Written Legal Submissions on Preliminary Issues, paras 30-31.
The Applicant submits that it would be an inconsistent approach to have a different requirement in relation to applications for an occupancy permit for completed building, as compared to a replacement occupancy permit for an existing building. Therefore, it is submitted, s 58(1)(j) read with reg 37(b), relates only to approvals in relation to the construction of the building the subject of the application for an occupancy permit, and not the use.
In this case, it is an agreed fact that all the physical development that exists on the Land has been duly approved.

Respondent's submissions on Issue 1

The Respondent submits it is an oversimplification to suggest that the Building Act is solely concerned with structures, and not uses. The mere fact that the Building Act makes provision for occupancy permits is indicative that the Building Act is concerned with the suitability of a building for a specific use. It is inescapable that development approvals are required for uses, not just construction.[41]
[41] Respondent's Outline of Submissions as to Preliminary Issues, para 21.
In so far as the Building Act, read with the Building Regulations, require approvals under the PD Act as a pre-requisite to an occupancy permit, the building legislation 'takes the planning legislation as it finds it'.[42] In terms of Western Australian planning law and practice, use approvals are an entrenched feature of this jurisdiction. Clear words would be necessary to limit the application of relevant approvals to those which involve only construction. It is a fundamental feature of planning law that the term 'development' involves use and works.[43]
[42] Respondent's Outline of Submissions as to Preliminary Issues, para 23.
[43] Respondent's Outline of Submissions as to Preliminary Issues, para 24.
The expression 'in relation to the building'[44] is a broad, not limiting expression. The definition of building in s 3 of the Building Act does not focus only on the structural integrity, or the construction, of the building. The phrase 'in relation to' has a wide meaning.[45]
[44] Building Act, s 3 (defined as follows: building includes part of a building).
[45] Australian Securities and Investments Commission v Citrofresh International Ltd [2007] FCA 1873; (2007) 164 FCR 333 [65] - [71] (Goldberg J).
The Respondent submits that given the nature of the assessment pursuant to an occupancy permit relates to the suitability of the building for a use, the necessary relationship exists between development approvals relating only to use (as the City says applies here) and a building. That relationship is not tenuous but is consistent with the statutory object.[46]
[46] Respondent's Outline of Submissions as to Preliminary Issues, para 27.
It is further submitted that Parliament's intention in providing that certain approvals should be in place before an occupancy permit is granted is to achieve coordination between different approval regimes. While it would be possible to establish a more siloed arrangement, experience suggests that conflict and confusion are more likely to result.[47]
[47] Respondent's Outline of Submissions as to Preliminary Issues, para 28.
The Respondent considers that the Applicant's argument (on the limitations that arise by the use of the phrase 'in relation to the building or incidental structure') is not supported by two other authorities required under reg 37. For example, the need to obtain approval for an apparatus to treat sewerage under s 107(2) of the Health Act would necessarily involve consideration of the required capacity for the use in question. Likewise, the specifications for a trafficable crossover under the LG ULP Regulations will depend on the use in question.
The Respondent submits that the Second Reading Speech from the Building Bill 2010 (WA) (Building Bill) supports its argument:
… The occupancy permit not only confirms that new buildings have been constructed in accordance with the certified plans, but also confirms the use of the building approved under planning or other legislation, and requires inspection and maintenance of essential services[.][48]

Issue 1: disposition

[48] Hansard, 10 November 2010, Legislative Assembly, page 8494 (Hon WR Marmion).

Issue 1 is a question of statutory construction. The principles relating to statutory construction are well-known.[49] Statutory construction is a task that requires attention to the text, context and purpose of the legislation. As Seaward J recently observed in H2 Migration & Education Pty Ltd v GU:[50]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
[49] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
[50] H2 Migration & Education Pty Ltd v GU [2023] WASC 199 [128].
While I accept there is some force to the Applicant's submissions on Issue 1, for the reasons set out below, I am not persuaded that there is any basis to restrict or limit the meaning of the phrase 'an approval required under the PD Act' in reg 37(b) of the Building Regulations.
I accept the Respondent's submission that more would be needed in order to limit the application of the term 'approval required under the PD Act' to those approvals which just involved physical works.
Ultimately, the occupancy permit approval process is intended to ensure that the building is fit for its designated use. Its purpose is plainly remedial. As such, there is no mandate or warrant to read down the clear words of reg 37(b).
If Parliament's intent was to limit the term 'approval required' under reg 37(b) to only 'building works' it would have said as much. The fact it did in relation to reg 18(2)(b), but not in the context of reg 37(b), is not without significance. I do not consider it to be a drafting oversight. Regulation 37(b) speaks of the need to ensure all 'relevant approvals under the PD Act' are in place before a building is occupied, not only those that relate to 'building works'.
Having regard to the statutory scheme, the purpose of the occupancy permit process, in this case, is to ensure that the building is fit for use as a recovery accommodation facility, as against its longstanding use associated with aged care. A consideration of s 58(1), in particular subsection (j), indicates that the occupancy permit process, which is the last permit that is needed before a use commences, involves a checking exercise by the permit authority to ensure that all necessary approvals and authorisations are in place.
That process stretches beyond pure building and construction questions to include inter alia matters relating to the treatment of sewerage, access to the land via crossovers and also to ensure that planning legislation has been complied with. These authorities go to whether the building in question is fit for the use proposed by the occupancy permit. I can see no reason why reg 37(b) should not apply according to its terms.
Of course, the words 'as relevant to the building or incidental structure' must have work to do. Those words do serve to limit the types of approvals under the PD Act that may be regarded as relevant for the purposes of an occupancy permit. For example, it would be difficult to see why a subdivision approval under Pt 10 of the PD Act, or a structure plan approval under Pt 4 of the Deemed Provisions, would be relevant to an occupancy permit application.
But a development approval under a planning scheme, which is needed to authorise the use that the building in question is going to be put to (that is, to be occupied for), is a very different matter. I find such an approval falls comfortably within the scope of reg 37(b).
To the extent that there are any concerns that the scope of the process under reg 37(b) may be asking too much of a building surveyor, that issue was directly addressed in the Second Reading Speech where it was stated:
Skilled building surveyors can do more than just check compliance with the building standards; they can help owners, builders and their design teams through the approvals process. They can advise whether building proposals are consistent with other approvals that have been obtained, such as planning or heritage. They will continue to play a significant role in helping permit authorities enforce compliance with both standards and processes.[51]
[51] Hansard, 10 November 2010, Legislative Assembly, page 8494 (Hon WR Marmion).
I also agree with the Respondent that the Second Reading Speech expressly states that the occupancy permit process involves consideration as to whether the proposed use has been approved under planning and other legislation.
Turning now to address the fundamental case put by the Applicant on Issue 1, I can see very good reason why the requirement to ensure compliance with approvals under the PD Act is not a feature of occupancy permits for completed buildings.
As a general proposition, all 'development' requires approval under the PD Act.[52] The most common exception to this is single house which complies with the deemed-to-comply provisions of State Planning Policy 7.3 Residential Design Codes Volume 1. However, a dwelling (a Class 1 building) does not require an occupancy permit.
[52] PD Act, s 162; see also MRS, cl 10.
Therefore, for completed buildings requiring an occupancy permit submitted with a CCC, it is routinely going to be the case that there is an underlying development approval which authorises both the physical construction and the associated use.
I note here that in order to grant the building permit that authorises the building to be constructed, the permit authority was required to be satisfied that any development has been approved.[53] That approval would have been granted by the 'responsible authority' under the PD Act, which would ordinarily be the local government, or a development assessment panel exercising those powers under Pt 11A of the PD Act.
[53] Building Act, s 20(1)(n).
So long as the requested occupancy permit, and the classification of the building under the BCA align with the underlying development approval that gave rise to the building permit being issued, there would be no need for the permit authority to enquire any further.
However, where an existing building is sought to be repurposed for another use, it is appropriate in my view, and consistent with the statutory object, that a permit authority turn its mind, before granting a replacement occupancy permit, to the question of whether all approvals necessary for the building to be put to that new use, have been duly obtained. That includes a development approval authorising that proposed new use.

I note here that the Long Title of the Building Act includes providing for the use and maintenance of existing buildings and structures.
Turning again to the extrinsic materials, there is nothing in the Explanatory Memorandum for the Building Bill that would change my view that reg 37(b) includes any development approval that is required to be obtained, not just approvals involving construction works. In relation to cl 58 of the Explanatory Memorandum for the Building Bill, it states the following:
The process for granting occupancy permits and building approval certificates is analogous to the process for granting building and demolition permits under 20 and 21. Clause 58(1) sets out the requirements that must be met before a permit authority can issue an occupancy permit and includes that:
…
•the applicant has obtained and is complying with the prior approvals prescribed in the regulations (58(1)(j) and (k)). The regulations may prescribe prior approvals for Planning, Health and FESA compliance. See also regulations under 54(4)(e) that will require an application to state whether any of these prior approvals have been obtained. Regulations under 56(5) or 57(2)(d) may also require that the building surveyor to include in the certificate a statement of compliance with the prior approvals;
…
58(2) ensures that the permit authority must not grant a permit unless it is satisfied that each of these provisions is being complied with[.]
This commentary confirms that the occupancy permit process involves a final check that all authorisations that are required to be in place before the building is occupied, and is used, are in fact in place.
It is also the case that the permit authority does not simply have to accept the information that has been provided pursuant to s 58(1). The permit authority has power under s 58(3) to refuse to grant an occupancy permit if there is erroneous information provided. The permit authority is authorised to review and interrogate the information provided in support of an occupancy permit. It is not simply a 'tickabox' exercise.
If I were to accept the Applicant's interpretation, it would mean every time a permit authority was certain that a development approval was required for a change in use under planning laws, and a proponent for a replacement occupancy permit in an existing building simply refused to engage on the issue, it would nevertheless be bound to grant the occupancy permit. For example, a hotel could be sought to be converted to permanent residential use. Such a proposal involves no external building works. On the Applicant's case, the permit authority (and the Tribunal on review) would be required to grant an occupancy permit notwithstanding the plain requirements of planning legislation relating to that change in use.
In my view, such an outcome cannot have been Parliament's intent.
My answer to Issue 1 is 'No'.

Issue 2

Does a permit authority (or the Tribunal on review), when determining an application for an occupancy permit pursuant to s 58 of the Building Act, have the power to 'go behind' advice given by a planning authority to the effect that approval is or is not required under the PD Act, and determine the correctness of that advice as a matter of law?

The Applicant's submissions

Both parties agreed that the answer to Issue 2 was 'yes'.
The Applicant's submissions referred to the analysis of Barker P in Edwards and Department of Planning and Infrastructure,[54] where his Honour outlined that collateral attacks could be entertained by the Tribunal in review proceedings.
[54] Edwards v Department of Planning and Infrastructure [2007] WASAT 101; (2007) 155 LGERA 1; (2007) 52 SR (WA) 328 [37].
The Applicant also submitted that the permit-authority's 'satisfaction' of the matters identified in s 58(1) was a jurisdictional fact[55] that must be established before the jurisdiction to grant an occupancy permit was enlivened. In order to ensure it is so satisfied, it must be the case that the permit authority is entitled to consider whether a development approval is needed in order to grant the occupancy permit.

The Respondent's submissions

[55] In the sense explained in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

The Respondent refers to Miller and City of Melville (Miller),[56] where his Honour Chaney P found that a permit authority was entitled to 'go behind' a CCC if it considered that it contained inaccurate or incorrect information, or even where there was a difference of opinion. His Honour outlined that:
… The Building Act is clearly designed to ensure adherence to applicable building standards, and that objective is better served by resolution of differences of opinion through an orderly review system, rather than by a requirement that obliges a permit authority to grant a permit notwithstanding a belief that the structure to be constructed will not comply with the required standards.[57]

Issue 2: disposition

[56] Miller and City of Melville [2012] WASAT 156 [26] - [36] (Chaney P, Raymond SM).

[57] Miller [36].

The parties' submissions on Issue 2 both have force.
The extract from Miller is consistent with my analysis of the statutory scheme for Issue 1. The Building Act, and in this instance the occupancy permit approval process, is clearly designed to ensure that all approvals and authorisations that are needed in order for the building to be put to a new use, have been obtained.
In order to be so satisfied, the permit authority is entitled to turn its mind to what authorisations it considers are required, and to challenge advice that is contrary to its view. That is the clear ratio of Miller which I, as a Senior Member, must follow. In my view, that is sufficient to answer Issue 2.
However, it is necessary to say more about Issue 2 in the context of the particular facts of this case. The first thing to say is that this issue, as framed, will rarely arise. The facts in this case are somewhat unusual and are complicated by the WAPC Letter. From early on in this proceeding, it has been repeatedly alleged that the City has sought to 'go behind' the advice of the WAPC. That is in fact how Issue 2 arises for determination.
For my part, I feel it necessary to clarify that, in my view, it is the Applicant and, to a lesser extent, the WAPC who have, in effect, sought to 'go behind' the advice of the City. In saying that, I mean no criticism of the Applicant nor any individual. However, to my mind Issue 2, as framed, in the context of the facts as they stand, tends to elide the statutory scheme of the MRS. Let me explain.
The MRS is a region planning scheme. It is prepared by the WAPC[58] but is not administered only by the WAPC. The 'responsible authority' for the MRS is the WAPC or such other authority that has been delegated functions under the MRS.[59]
[58] PD Act, s 14(h) and s 14(i).
[59] MRS, cl 5.
The effect of cl 5 is that where functions under the MRS are delegated, the responsible authority is the delegee, not the WAPC.
For many years now, it is local governments who have been delegated responsibility for determination of applications on land that is zoned in the MRS.[60] That is to say, it is local governments who are the 'responsible authorities' on land zoned in the MRS.
[60] Instrument of delegation for the MRS published in the Government Gazette on 18 January 2022 (MRS Delegation).
The responsibility to administer the MRS necessarily includes assessing when development applications under the MRS are required on zoned land. To do otherwise, would result in a possible contravention of the MRS which provides that 'development' requires approval from the 'responsible authority'.[61]
[61] MRS cl 10 generally, cl 24(1) for zoned land.
Furthermore, the MRS makes clear that any application to develop land is to be lodged with the relevant local government.[62] It is also clear that approval under the MRS is separate and distinct from approval under LPS 3.[63]
[62] MRS cl 28.
[63] S&L Lenz Pty Ltd v Shire of Serpentine Jarrahdale [2017] WASC 191 [31] (Pritchard J) (Lenz).
The only applications which the WAPC directly determines are on land which is reserved under the MRS, the subject of a cl 32 resolution[64] or within a planning control area. Absent a cl 32 resolution, the administration of the MRS on zoned land is a matter left for local governments.[65]
[64] The current cl 32 resolution was also published in the Government Gazette on 18 January 2022.
[65] Pursuant to the cl 32 resolution, the only circumstance where the WAPC would determine an application on the Land would be if it considered that the application was of State or regional importance, or it was otherwise in the public interest for the WAPC to determine. That being the case, the WAPC must give written notice of its decision to withdraw the delegation.
Coming back to the facts of this case, the 'responsible authority' for the MRS was, and remains, the City. The Applicant's consultants know this. That is why it is the City who is the first point of contact for the purposes of ascertaining whether development approval is required. The City says no approval is needed under LPS 3, but approval is required under the MRS. As the delegated responsible authority for the MRS, the City is entitled to reach that view.
It is at this point where the Applicants seek to engage the WAPC, even though the MRS arrangements are clear that the City is the responsible authority. Be that as it may, the WAPC meets with the Applicant and then sends the WAPC Letter in circumstances where its authority to do so is far from clear[66] and which it later seeks to resile from. The WAPC Letter has unnecessarily complicated matters.
[66] Although it may be arguable that such power can be inferred from s 14(l) of the PD Act which empowers the WAPC 'to do all things that are necessary for the carrying out' of the MRS.
In any event, on the facts, in my view, the City, acting as permit authority, is not only entitled, but it is in fact required, to go behind the informal advice that was provided by the WAPC which was contrary to the view it had reached in circumstances where it was the responsible authority for the administration of the MRS. Moreover, the issue as to whether approval was required under the MRS is a question of law. It is not simply a matter of the City having a different opinion.
I reiterate that my comments should not be read as criticism of those who were advocating for Shalom. It is their role to try and secure an approval for their client and they were entitled to approach the WAPC in representing, and advocating for, Shalom. The fact they were doing so pro bono should also be acknowledged and commended.
Likewise, I accept the WAPC is required to respond, at some level, to questions it has been asked. It is ultimately responsible for carrying out the MRS.[67] However, in doing so, the administrative arrangements it has put in place, and the functions it has delegated, should be borne in mind.
[67] MRS, cl 5.
For those reasons, like the parties, my answer to Issue 2 is 'Yes'.

Issue 3

Where development approval is expressly not required for development under a local planning scheme (and specifically, under the Deemed Provisions), is this to be construed as being an approval given by the local authority for the purposes of cl 26(1) of the MRS?

Applicant's submissions on Issue 3

The Applicant's use of the Land:
(a)will be identical to the use in Shalom 18;
(b)is permitted as of right under the Community Purpose zone in LPS 3; and
(c)does not involve physical works.[68]
[68] Applicant's Written Legal Submissions on Preliminary Issues, paras 55 to 65.
It is therefore plain that Shalom does not need approval under LPS 3 for the recovery accommodation facility.
Clause 26(1) of the MRS has the effect that an approval given by the local government under a local planning scheme on zoned land 'shall be deemed to be an approval under the [MRS]'.
The Applicant submits that there are two ways for development to be approved under a planning scheme: either via a development approval or because the use is permitted.[69]
[69] Applicant's Written Legal Submissions on Preliminary Issues, para 68.
Section 162 of the PD Act sets out that where a planning scheme provides that development requires approval, that development should not be undertaken unless approval has been given. Having regard to s 162, the Applicant submits that the reference to development being 'exempt' from approval must be understood to mean as being 'development approval obtained upon the making of a development application'.
The Applicant submits that the reference to 'approval' in cl 26(1) of the MRS must include both an approval granted by way of a development application, and an approval granted (or deemed to be approved) by the relevant local planning scheme.
The Applicant submits it would be an unusual, even absurd, outcome if cl 26(1) deemed an approval under the MRS where an approval had been granted by way of a development application, but not where the development is permitted by the local planning scheme itself.[70]
[70] Applicant's Written Legal Submissions on Preliminary Issues, paras 75 and 77.
The Applicant points to the fact that if its submissions on this point were not correct, there would be thousands of existing land uses which are, strictly speaking, unauthorised under the MRS. The very purpose of removing the requirement to seek approval for certain uses (and works) under local planning schemes via the Deemed Provisions was to reduce red tape.[71]
[71] Applicant's Written Legal Submissions on Preliminary Issues, para 76.
The Applicant also submits that planning schemes are largely the work of town planners; not parliamentary counsel and should be read and applied in a practical and common sense, and not in an overly technical way.[72]

Respondent's submissions on Issue 3

[72] Applicant's Written Legal Submissions on Preliminary Issues, para 78.

The Respondent submits that it does not follow that, just because a development is exempt from development approval under a local planning scheme, that it does not require approval under the MRS. More particularly, an exemption under a local planning scheme is not the equivalent of 'an approval given by the local authority to develop land' for the purposes of cl 26 of the MRS. An exemption and an approval are not the same thing.[73]
[73] Respondent's Outline of Submissions as to Preliminary Issues, para 59.
The City refers to, and adopts, the following aspects of the SSO's letter which I set out at [33] above.[74]
[74] Respondent's Outline of Submissions as to Preliminary Issues, para 74.
Section 32 of the COVID Response Act expressly provides that if a person did something pursuant to a notice issued by the Minister for Planning pursuant to cl 78H of the Deemed Provisions,[75] if the thing done contravened a region planning scheme, it is taken to be, and have always been, exempt from the requirement under the region planning scheme.
[75] Clause 78H of the Deemed Provisions permitted the Minister for Planning to issue a notice of exemption from planning requirements in the context of a State of Emergency declaration or COVID-19 declaration. For example, a 'restaurant' was permitted to sell take away food without obtaining planning approval.
Because the Deemed Provisions only apply to local planning schemes, Parliament has taken the step to include provisions to provide exemptions for region planning schemes. A similar provision is required for exemptions provided for in the Deemed Provisions outside of cl 78H.[76]
[76] Respondent's Outline of Submissions as to Preliminary Issues, para 76.
Clause 26 has existed for decades, long before the Deemed Provisions commenced. Clause 26 was not amended to take account of the commencement of the Deemed Provisions and the concept of broadscale exemptions from development approval.[77]
[77] Respondent's Outline of Submissions as to Preliminary Issues, para 78.
It remains the case that development approval is required under the MRS, notwithstanding any exemption under the local planning scheme.[78]

Issue 3: disposition

[78] Respondent's Outline of Submissions as to Preliminary Issues, para 77.

It is accepted that planning schemes should be interpreted broadly and applied in a practical and common-sense manner. However, the fact remains that in Western Australia, in areas covered by a region planning schemes, it will often be the case that two separate development approvals will be required: one under the region planning scheme and one under the local planning scheme.
Since the decision of her Honour Pritchard J in Lenz, it has been made clear to responsible authorities and developers that separate applications for development approval under each scheme must be lodged.[79]
[79] Lenz [31].
The MRS text is plainly a product of its time. In places, it still references the 'Town Planning Act'[80] and the 'Scheme Act',[81] both of which ceased on 9 April 2006.
[80] Being the former Town Planning and Development Act 1928 (WA).
[81] Being the former Metropolitan Region Town Planning Scheme Act 1959 (WA).
Unlike more recent region planning schemes, the MRS requires approval to develop on all zoned land.[82] In the context of the MRS, the term 'development' is the same as in PD Act and includes both use and works. The only exemptions to the requirement that development must be approved by the MRS are a single house on a single lot or the carrying out of works under a road or street by a public authority pursuant to a written law.[83] Every other 'development' requires approval.
[82] MRS, cl 24(1).
[83] MRS, cl 24(2).
My point is that the MRS already includes exemptions from the need to obtain development approval. There is nothing further in the MRS text that supports a submission that an exemption granted under a local planning scheme has the effect that that same development is exempt from approval under the MRS. In fact, the MRS text points the other way. For example, for zoned land, cl 24(1) expressly provides that the approval of the 'responsible authority' is 'required' for development.[84] No broadscale exemptions can be inferred from that language.
[84] Except if cl 24(2) applies which relates to single houses and works by a public authority.
The Deemed Provisions, which do contain exemptions from approval, operate only in the context of local planning schemes. They do not inform the interpretation of the MRS.
It is also the case that an exemption from requiring approval is not the same as a development approval. They are simply different things. In circumstances where a use commences on the basis that it is permitted, it is not of the same species as a use commenced under the authority of a development approval. Different rights attach to such uses. For example, a development approval cannot, as a matter of law, be abandoned, but a use based on permitted use right can be.[85] As a result, I am unable to accept the Applicant's submission that an exempt development (on the basis that the use is permitted) is the same as an approved development.
[85] Warr and Town of Cambridge [2020] WASAT 126 [104].
Because permitted uses and development approvals are not one and the same, I cannot accept that the fact that a use is permitted and therefore exempt from approval under LPS 3 has the effect, by reason of cl 26(1), that it is also exempt from approval under the MRS. Clause 26(1) of the MRS simply does not speak of exemptions. In my view, the Applicant seeks to read much, indeed too much, into the language of cl 26(1).
Furthermore, cl 26(1) of the MRS operates in circumstances where the local authority has undertaken its own assessment into the merits of the proposed development and determined that approval should be granted. That is to say, the operation of cl 26(1) is premised on there being a planning assessment and an approval based on that assessment. In such circumstances, the drafters of the MRS saw fit to deem that approval to also be an approval for the purposes of the MRS.

However, no assessment of a proposed development has taken place in the context of a use that is permitted by the local planning scheme. That is to say, there has been no planning assessment undertaken by which it can be inferred that approval under the MRS ought to be deemed to have been given.
No doubt this is why Parliament saw fit to enact s 32 of the COVID Response Act to, in effect, regularise the range of approvals under region planning schemes that should have been, but were not, obtained during the COVID-19 pandemic.
Ms Moharich, counsel for the Applicant, referred to cl 21 of the MRS, which provides that a local planning scheme provision prevails over a provision in Pt III of the MRS if there is any variance between the two. However, this is not a case where there is a variance between the two schemes. LPS 3 simply provides an exemption for a particular development in circumstances where the MRS does not.
As I raised with the parties, at least in my view, Issue 3 draws attention to an inconvenient truth in relation to development that does not require approval under a local planning scheme and what that means in the context of the MRS. That inconvenient truth has existed for many years.[86] My answer to Issue 3 is 'No'.
[86] ts 35, 20 June 2023.
Having answered those preliminary questions, the matter should be listed for further directions.

Orders

The Tribunal orders:
1.The answers to the preliminary issues are as follows:
(a)Issue 1: No.
(b)Issue 2: Yes.
(c)Issue 3: No.

2.The matter is listed to a directions hearing on a date to be advised.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
17 JULY 2023