WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton

[2005] WASAT 266

WR CARPENTER PROPERTIES PTY LTD & ANOR and SHIRE OF BUSSELTON [2005] WASAT 266

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 266
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:525/2005	Heard:	20 SEPTEMBER 2005
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	7/10/05
No of pages:	18	Judgment Part:	1 of 1
Result:	Proceedings dismissed
Category:	B
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Parties:	WR CARPENTER PROPERTIES PTY LTD THE GRIFFIN COAL MINING COMPANY PTY LTD SHIRE OF BUSSELTON
Catchwords:	Town planning Failure to advertise draft Development Guide Plan Preliminary issue Jurisdiction Whether review available Construction and interpretation Planning scheme Whether clause requiring approval of Development Guide Plan applies to land zoned "Agriculture" Whether provision "ambiguous" Whether extrinsic material could be considered in ascertaining meaning ­ Whether scheme provides for review of decision not to advertise draft Development Guide Plan Whether draft Development Guide Plan not required by scheme capable of approval under scheme
Legislation:	Interpretation Act 1984 (WA), s 19(1)(b)(i), s 32(2) State Administrative Tribunal Act 2004 (WA), s 29(1), s 47(2)
Case References:	Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Ors (2000) 48 NSWLR 548 Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76 WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194 Nil
Orders	1. Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), the proceedings are dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : WR CARPENTER PROPERTIES PTY LTD & ANOR and SHIRE OF BUSSELTON [2005] WASAT 266 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 20 SEPTEMBER 2005 DELIVERED : 7 OCTOBER 2005 FILE NO/S : DR 525 of 2005 BETWEEN : WR CARPENTER PROPERTIES PTY LTD

THE GRIFFIN COAL MINING COMPANY PTY LTD
Applicants

AND

SHIRE OF BUSSELTON
Respondent

Catchwords:

Town planning - Failure to advertise draft Development Guide Plan - Preliminary issue - Jurisdiction - Whether review available - Construction and interpretation - Planning scheme - Whether clause requiring approval of Development Guide Plan applies to land zoned "Agriculture" - Whether provision "ambiguous" - Whether extrinsic material could be considered in ascertaining meaning ­ Whether scheme provides for review of decision not to

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advertise draft Development Guide Plan - Whether draft Development Guide Plan not required by scheme capable of approval under scheme

Legislation:

Interpretation Act 1984 (WA), s 19(1)(b)(i), s 32(2)

State Administrative Tribunal Act 2004 (WA), s 29(1), s 47(2)

Result:

Proceedings dismissed

Category: B

Representation:

Counsel:

Applicants : Mr MJ McCusker QC with Mr MJ Hardy
Respondent : Mr A Roberts

Solicitors:

Applicants : Hardy Bowen
Respondent : Minter Ellison

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

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34
Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Ors (2000) 48 NSWLR 548
Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76
WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194




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Case(s) also cited:

Nil


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Shire of Busselton raised as a preliminary issue whether the Tribunal had jurisdiction to review the Shire's decision to refuse to advertise a so­called "Development Guide Plan" which proposed rural residential subdivision of land zoned "Agriculture". The Shire argued that the town planning scheme provision under which the document was purportedly submitted applied only to land zoned "Rural Residential". It also argued that the scheme did not confer a right to seek review of the Shire's decision to refuse to advertise a Development Guide Plan.

2 The Tribunal determined that, on its proper construction, the clause under which the document was purportedly submitted applied only to land in the "Rural Residential" zone and not to land in the "Agriculture" zone. As the document was not required by the scheme, the Shire did not have power to approve it and the Tribunal did not have jurisdiction to review the Shire's decision not to advertise it.

3 Although the question did not ultimately arise for determination, the Tribunal considered that where approval of a Development Guide Plan was required by the scheme, it conferred a right to seek review of a decision to refuse to advertise it. Lodgement of a draft Development Guide Plan for approval by the Shire implicitly and necessarily involved an application for approval under the scheme to the advertising of the document.

Introduction

4 The Shire of Busselton has raised a preliminary jurisdictional issue for determination in review proceedings which are pending before the Tribunal. The proceedings involve an application by WR Carpenter Properties Pty Ltd and The Griffin Coal Mining Company Pty Ltd for review of the Shire's decision, in effect, to refuse to advertise a document entitled "Cape Farm Development Guide Plan" (Plan) which was prepared and submitted to the Shire by Cardno BSD on behalf of WR Carpenter on 16 May 2005. The Plan proposes the rural residential subdivision of part of the land in Lots 50 and 203 and Location 683 at Cape Naturaliste Road, Bunker Bay (site) into 98 allotments.

5 On 1 July 2005 the Shire wrote to Cardno BSD stating that "[the Shire has] not sought a [Development Guide Plan] for the [site and] the proposal will not be further assessed". It is common ground that this letter

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communicated a decision, in effect, to refuse to advertise the Plan under cl 25(4) of Busselton Shire Council District Town Planning Scheme No 20 (TPS 20).

6 The preliminary jurisdictional issue is whether TPS 20 confers a right to apply for review by the Tribunal of the Shire's decision to refuse to advertise the Plan. The issue turns on the proper construction of cl 85 and cl 96 of TPS 20.

7 Clause 85 is headed "RURAL RESIDENTIAL SUBDIVISION & DEVELOPMENT REQUIREMENTS". It comprises 21 subclauses, the first three of which are as follows:

"(1) Subdivision and development shall be generally in accordance with the Rural Strategy adopted by the Council and the Western Australian Planning Commission for the district and, where applicable, the Development Guide Plan approved and adopted by the Council and the Western Australian Planning Commission.

(2) Except in the case of expressly approved staged development, no further subdivision of lots created pursuant to Sub­clause (1) will be permitted.

(3) Where subdivision of lots either ­


(a) Not included within an approved Subdivision or Development Guide Plan; or

(b) Where no lot size is prescribed in the Rural Strategy adopted by Council and the WA Planning Commission; or

(c) Comprising resubdivision of lots included within an approved Subdivision or Development Guide Plan is proposed,

Council shall not recommend approval of such subdivision prior to approval by Council and the WA Planning Commission of a Development Guide Plan prepared consistent with Clause 25 of the Scheme."

8 WR Carpenter and Griffin contend that approval by the Shire of the Plan is required by cl 85(3) in order for the Shire to be able to recommend

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approval by the Commission of the proposed subdivision. The Shire contends that, on its proper construction, cl 85 applies only to land zoned "Rural Residential" under the Scheme and that it is inapplicable to the site which is zoned "Agriculture".

9 Clause 25(3) of TPS 20 states that a Development Guide Plan is required to indicate "in a comprehensive manner, how the land is to be developed" and lists a number of specific matters which are required to be addressed. Clause 25(4) provides as follows:

"Following receipt of a Development Guide Plan which, in the opinion of the Council, adequately addresses the orderly and proper planning of the land, the Council shall cause the Development Guide Plan to be advertised for a minimum period of 28 days."

10 Clause 25(5) requires the Shire to consider any submissions made under subclause (4) and confers a discretion on it to refuse or adopt the Development Guide Plan with or without modifications and subject to such conditions as it considers appropriate.

11 WR Carpenter and Griffin contend that the proceedings are authorised by cl 96 of TPS 20 which provides as follows:

"(1) A person who is an applicant for the Council's approval or consent under the Scheme, and who is aggrieved by a decision of the Council to refuse that person's application or to attach conditions to an approval of that person's application under the Scheme, may appeal under, and in accordance with, Part V of the [Town Planning and Development Act 1928 (WA) (Act)]. In this Clause, "applicant" includes the owner of land in respect to which an application was made.

(2) Sub­Clause (1) above applies to an application for approval of a Development Guide Plan or Structure Plan pursuant to Clauses 25 and 78 in the same manner as it applies to applications for Council's approval or consent and may be applied to a determination of the Western Australian Planning Commission made pursuant to Clause [sic] 25 and 78."

12 Under s 36 of the Act, the effect of cl 96 is to confer on a person who is aggrieved by a decision of the Shire to refuse that person's application,

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a right to seek review of the decision by the Tribunal. The Shire contends, however, that even if cl 85(3) authorises the lodgement of a the Plan, cl 96 does not confer a right to seek review of its decision to refuse to advertise it.

13 It was common ground at the hearing that if cl 85(3) applies to the site and if cl 96 confers a right to seek review of the refusal to advertise the Plan, the circumstances otherwise satisfy the requirements of cl 85(3).

14 For reasons set out below, the Tribunal has determined that, on its proper construction, cl 85(3) is only applicable to land zoned "Rural Residential" under the Scheme and is not applicable to land zoned "Agriculture". There are a number of textual indications in cl 85 which, when read together with other provisions of the Scheme, strongly suggest that the application of the clause is limited in this way. Although there is no express provision at the commencement of cl 85 or in subclause (3) which states that it applies only to land zoned "Rural Residential", the meaning of subclause (3), when determined by reference to the language of the clause viewed as a whole, is not ambiguous. Resort to extrinsic material is, therefore, not available.

15 As the Plan is not required by cl 85(3), the application for review is incompetent. Although the question does not ultimately arise for determination, the Tribunal considers that cl 96 would permit the review of a decision by the Shire to refuse to advertise a Development Guide Plan where approval of the plan is required by a provision of the Scheme. Given that, on the joint position of the parties, advertising of a draft Development Guide Plan under cl 25(4) is an essential preliminary step to approval, the lodgement of a plan for approval of the Shire implicitly and necessarily involves an application for approval under the Scheme to the advertising of the plan under cl 25(4).

The parties' submissions

16 Mr Roberts, counsel for the Shire, made two alternative submissions. First, he contended that cl 85 applies only to land in the "Rural Residential" zone and does not, therefore, create a requirement for the approval of the Plan. For a right of review to arise under cl 96(2), there must be an application for approval of a Development Guide Plan which is required for the purposes of the Scheme. Equally, there can be no right to seek review of a decision to refuse to advertise a document the approval of which is not required for the purposes of the Scheme.

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17 In advancing this submission, Mr Roberts relied on textual indications in the Scheme and on extrinsic material.

18 The textual argument has four elements. The first is based on the structure of Pt 9 which comprises cl 79 to cl 91 of the Scheme and is entitled "SPECIFIC RURAL PROVISIONS". Clause 79 provides that Pt 9 "shall apply to all developments of a rural nature or which are permitted or may be permitted by the Council in any of the Rural Zones in the Scheme Area". Clause 80 identifies "Rural Zones" as "Agriculture", "Viticulture and Tourism", "Rural Residential", "Rural Landscape", "Conservation" and "Bushland Protection". Mr Roberts submitted that the remaining nine clauses of Pt 9 each fell into one of two categories, namely provisions dealing with a specific zone or provisions dealing with a specific form of development. In particular, he suggested that these categories comprise the following clauses:

Specific zone

(i) clause 81 and cl 84 which concern additional dwelling houses and setback requirements in the "Agriculture" and "Viticulture and Tourism" zones;

(ii) clause 87 which requires planning consent for a single house in the "Conservation", "Rural Landscape" and "Bushland Protection" zones;

(iii) clause 88 which imposes subdivision and development controls in the the "Rural Landscape" zone;

(iv) clause 89 which imposes subdivision and development controls on specific forms of development in the "Conservation" zone; and

(v) clause 90 which imposes subdivision and development controls in the "Bushland Protection" zone.





Specific form of development

(i) clause 82 which concerns management of nutrients and off-site impacts;

(ii) clause 83 which concerns development of dams; and

(iii) clause 86 which concerns rural tourist accommodation.

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19 Mr Roberts observed that the only remaining clause in Pt 9 is cl 85. He submitted that it is consistent with the scheme of the Part that cl 85 deals specifically with the "Rural Residential" zone which is the only designated Rural zone which does not otherwise have a specific clause imposing subdivision and development requirements.

20 The second element of the argument emphasises objective (vi) and policies (a) and (e) of the "Rural Residential" zone set out in Table 1 to cl 21 of the Scheme. Objective (vi) is as follows:

"To direct and control the form rural residential subdivision takes to prevent a demand for the unreasonable and uneconomic provision or extension of services and facilities."

21 Policies (a) and (e) of the "Rural Residential" zone are as follows:

"(a) To encourage rural residential subdivision by permitting a range of lot sizes in conventional subdivision subject to a general minimum lot size of 1 hectare with an average minimum lot size of approximately two hectares and providing greater flexibility for lots created within appropriate cluster subdivisions or by strata title subdivision, depending upon the special physical characteristics of the land."

"(e) To encourage generally, and require specifically in rural residential subdivision, the provision of vegetation and fauna corridors and the revegetation of the land."

22 The third element of the argument is that if cl 85 applies to all Rural zones, it would lead to three "conflicts" in Pt 9, because certain subclauses of cl 85 concern the same matters as do other clauses in the Part which expressly apply to certain nominated zones. The subclauses relied on by Mr Roberts are identified and discussed in the following part of these reasons. Mr Roberts submitted that a construction of cl 85 which avoids conflicts and inconsistencies should be preferred.

23 The fourth element of the argument relies on subclauses (20) and (21) of cl 85. These subclauses provide as follows:

"(20) Notwithstanding any other provisions of this Scheme, the provisions of the 'Agriculture' zone shall apply to all lots greater than 20 hectares within the 'Rural

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Residential' zone except for the use of 'Intensive Agriculture'.

(21) Notwithstanding any other provisions of this Scheme, 'Intensive Agriculture' may be permitted within the 'Rural Residential' Zone only where such lots are greater than 20 hectares or are identified for rural or primary production on an approved Subdivision or Development Guide Plan with such application being subject to advertising procedures consistent with Clause 12 of the Scheme."

24 Mr Roberts also submitted that the meaning of cl 85(3) is "ambiguous", because it is unclear whether it is intended to apply solely to land in the "Rural Residential" zone or to land in any of the Rural zones identified in cl 80. In consequence, extrinsic material may be considered under s 19(1)(b)(i) of the Interpretation Act 1984 (WA) which is "capable of assisting in the ascertainment of the meaning of [cl 85(3)]". Mr Roberts relied on the heading of cl 85 (which under s 32(2) of the Interpretation Act does not form part of the Scheme), a part of the Scheme report which was made available for consultation with the advertised version of the Scheme and a letter from the Shire's Manager of Strategic Planning to the Ministry for Planning which proposed modifications to the draft version of TPS 20 including the insertion of the subclause which became cl 85(3).

25 Mr Roberts' alternative submission was that, even if cl 85 applies to land in the "Agriculture" zone and authorised the lodgement of the Plan, cl 96 does not confer a right to seek review of the Shire's decision to refuse to advertise a Development Guide Plan.

26 Mr McCusker QC, who appeared with Mr Hardy for WR Carpenter and Griffin, also made two alternative submissions. First, he contended that it is open for a person to lodge a Development Guide Plan for approval by the Shire under the Scheme even if the Scheme does not require the approval of a plan. Clause 96, therefore, confers a right to seek review of the Shire's decision to refuse to advertise a plan even though approval of a plan is not relevantly required by the Scheme. In this regard, Mr McCusker relied on the evidence of Mr Michael Swift, a town planner, that "it is the established and consistent practice of the [Shire] to receive or to prepare and subsequently promulgate Development Guide Plans pursuant to clause 25 of [TPS 20] for a wide range of developments or subdivisional proposals notwithstanding that the

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land the subject of those proposals [is not] … subject to provisions of … [cl] 85". Mr Swift gave two examples of which he is aware.

27 Alternatively, Mr McCusker submitted that cl 85(3) requires approval of the Plan. He contended that the "threshold criterion" which "sets the tone for what follows" in Pt 9 is the statement in cl 79 that the Part "shall apply to all developments of a rural nature or which are permitted or may be permitted by the Council in any of the Rural Zones". This clause takes precedence over a construction which seeks to allocate the interpretation and application of cl 85 to the "Rural Residential" zone alone. Moreover, although subclauses (20) and (21) expressly refer to the "Rural Residential" zone, that reference is a textual indication that subclauses (1) to (3), which are not similarly expressly limited in application, apply generally to all Rural zones.

28 Mr McCusker also noted that although cl 81 applies expressly to the "Agriculture" zone, it does not deal comprehensively with land in that zone and specifically does not deal with subdivision and development in the same manner as cl 85. He submitted that it would be anomalous if subdivision of land zoned "Rural Residential" could take place only if a Development Guide Plan was approved while land zoned "Agriculture" could be subdivided without such a plan. A Development Guide Plan is at least as necessary to guide subdivision of land in the "Agriculture" zone as it is to guide subdivision in the "Rural Residential" zone.

29 Finally, Mr McCusker contended that consideration may not be given to the extrinsic material relied on by Mr Roberts as the meaning of cl 85(3) is not ambiguous.

Consideration of preliminary issue

30 The Tribunal does not accept Mr McCusker's first submission. If approval of a Development Guide Plan is not required by the Scheme, neither the submission nor approval of such document is authorised by the Scheme. The purported granting of an approval under the Scheme in those circumstances would be a legal nullity; cf Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34. Moreover, cl 96(1) emphasises that a right to appeal (now seek review) only applies in the case of "an applicant for the Council's approval or consent under the Scheme". If approval of a document is not required by the Scheme, a person who submits the document to the Shire for approval cannot be an applicant for approval under the Scheme. The purpose of cl 96(2) is to make explicit that cl 96(1) applies to applications for approval of Development Guide Plans under cl 25 and cl 78 and to extend the right of

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appeal (review) to determinations of the Commission. It does not obviate the need for the approval sought to be required by cl 25 or cl 78.

31 Mr Swift's evidence cannot alter the result. If the Shire has an "established and consistent practice" of approving Development Guide Plans pursuant to cl 25 in circumstances where approval is not required by the Scheme, it has acted beyond power. Its actions cannot inform the proper construction of the Scheme.

32 Consequently, an application for review of the Shire's decision cannot be made unless cl 85(3) applies to land in the "Agriculture" zone. For reasons which follow, on its proper construction, cl 85(3) does not apply to land in that zone and applies only to land in the "Rural Residential" zone.

33 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. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction."

34 In referring to the propriety of departing from the literal interpretation, Mason and Wilson JJ stated, at 321:

"It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

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35 Although the first element of Mr Roberts' textual argument, which emphasises the structure and scheme of Pt 9, has some logic and attraction to it, it is not a sufficiently clear basis on which to determine the meaning of the provision.

36 However, the third and fourth elements of Mr Roberts' textual argument provide a strong indication that the intention of cl 85(3) is to require the approval of a Development Guide Plan only in relation to land in the "Rural Residential" zone as a condition precedent to the Shire being able to recommend approval of subdivision in that zone.

37 As noted earlier in these reasons, the third element of Mr Roberts' argument emphasises three "conflicts" which would arise in the operation of Pt 9 if cl 85 applies more broadly than to the "Rural Residential" zone. First, cl 85(15) provides that "not more than one dwelling house may be constructed on any allotment", but the Shire may grant approval for "ancillary accommodation for the exclusive use of family members, provided such is integral to the house, contains not more than one bedroom, utilises shared laundry facilities, and does not exceed 60m2 of floor area". As Mr Roberts submitted this clause "cannot sit side by side" with cl 81 which permits the construction of an additional dwelling house on land zoned "Agriculture" if certain requirements, which are different to the terms of cl 85(15), are met. The inconsistency between cl 85(15) and cl 81 indicates that cl 85 does not apply to the "Agriculture" zone.

38 Second, whereas under the Zoning Table to cl 21 use of land in the "Agriculture" zone for the purposes of "agriculture" may be carried out without planning consent under the Scheme, cl 85(17) provides that "where not specified on an approved Development Guide Plan, the keeping and rearing of stock is prohibited on any lot less than 4 hectares in area" and cl 85(18) provides that "the keeping and rearing of any stock is prohibited on any lot less than 1 hectare". Moreover, cl 85(17) provides that "stock may be permitted with the consent of Council on allotments of larger than 4 hectares providing that this does not require removal of vegetation and that stock numbers are maintained at levels in accordance with stocking rates to the satisfaction of Agriculture WA". The term "agriculture" is defined in Sch 1 to include "any land or buildings used for the raising of stock". Although cl 21(2)(c) states that the Zoning Table lists land uses which may be carried out without planning consent "except as otherwise provided by this Scheme", it would be counter-intuitive for cl 85 to limit the agricultural potential of land specifically zoned "Agriculture" under the Scheme, particularly as the first objective of the "Agriculture" zone specified in Table 1 to cl 21 is "to conserve the

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productive potential of rural land". Subclauses (17) and (18) of cl 85, therefore, also suggest that the clause does not apply to the "Agriculture" zone.

39 Third, cl 88(1) and cl 90(1) contain separate requirements for the approval of a Subdivision and Development Guide Plan or Development Guide Plan for subdivision in the "Rural Landscape" and "Bushland Protection" zones, respectively. This is a clear indication that cl 85 does not apply to land in these zones.

40 A fourth "conflict" can be added to Mr Roberts' list. Clause 85(5) provides that dwellings and outbuildings must be located "within any building envelopes or in such other manner as may be identified on the Development Guide Plan referred to in Sub­Clause (1)". Clause 85(14) provides that "unless specified otherwise on the Development Guide Plan", dwellings and outbuildings shall not be located within 20 metres of any road (other than specified roads) or a front or rear boundary or within 15 metres of a side boundary. In contrast, cl 84(2), which expressly applies to the "Agriculture" zone, provides that "no dwelling shall be located closer than 30 metres or such other distance as may be specified in a Scheme policy to any boundary".

41 There are two inconsistencies between subclause (5) and subclause (14) of cl 85, on the one hand, and subclause (2) of cl 84, on the other. First, cl 85(14) permits lesser setbacks than does cl 84(2). Second, whereas cl 84(2) contemplates variation of the nominated setback distance only where "specified in a Scheme policy", cl 85(5) and cl 85(14) contemplate variation only where specified in the Development Guide Plan referred to in subclause (1). These inconsistencies show that cl 85 does not apply to land in the "Agriculture" zone, and that subdivision and development in that zone is not regulated by Development Guide Plans.

42 The terms of subclauses (20) and (21) of cl 85 (see [23]) are also a powerful textual indication that cl 85 does not apply to the "Agriculture" zone. These subclauses clearly contemplate that "the provisions of the 'Agriculture' Zone" are external to cl 85 and that cl 85 applies only to the 'Rural Residential' zone.

43 Clause 79 does not assist WR Carpenter's and Griffin's argument. As noted earlier, this clause states that Pt 9 applies "to all developments of a rural nature or which are permitted or may be permitted by the Council in any of the Rural Zones". Although these words contemplate that any of the provisions of the Part could apply to any such development, the

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generality of this introductory clause is subject to specific textual indications in the clauses which follow. Furthermore, the term "development" as defined in Sch 1 for the purposes of the Scheme does not include "subdivision" and subdivision may not be permitted by the Shire. Approval of subdivision in this State is within the exclusive province of the Commission.

44 Mr McCusker's argument that the absence of specific subdivision controls in cl 81 for the "Agriculture" zone indicates that subdivision in that zone is subject to sub­clauses (1) to (3) of cl 85, is answered by reference to objectives and policies for the zones set out in Table 1 to cl 21. The objective and policies of the "Rural Residential" zone quoted at [20] to [21] indicate that "rural residential subdivision" in that zone is contemplated by the Scheme and that it should be appropriately directed, controlled and encouraged. In contrast, an objective of the "Agriculture" zone is "to exclude urban development", and the objectives and policies for that zone contemplate the regulation of subdivision only so as to ensure that land is available for productive, commercial farming. There is, therefore, not the same strategic planning requirement for directing or controlling subdivision, and there is certainly absent an encouragement of subdivision, in the "Agriculture" zone in contrast to the "Rural Residential" zone. As noted earlier, cl 25(3) provides that a Development Guide Plan is required to show how the land is to be developed. Given that subdivision in the "Agriculture" zone is only contemplated by the Scheme for productive, commercial farming purposes, it is not at all surprising that approval of a Development Guide Plan is not required before the Shire can make a recommendation to the Commission in relation to subdivision in that zone.

45 Moreover, it would not be anomalous if subdivision of land zoned "Rural Residential" could take place only if a Development Guide Plan was approved while subdivision of land zoned "Agriculture" could take place without such a plan. Although under s 20(5) of the Act the Commission's discretion to approve a subdivision is not fettered by the provisions of a town planning scheme, it is clear that the Scheme does not generally contemplate subdivision of land zoned "Agriculture" for other than agricultural purposes, whereas it does clearly contemplate subdivision of the nature proposed in the Plan of land zoned "Rural Residential". Given this significant strategic difference between the two zones, the construction of cl 85(3) advanced by the Shire does not have an anomalous result.

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46 For these reasons, the Tribunal considers that cl 85(3) does not apply to the site. When read in the context of the remainder of the clause and other parts of the Scheme the application of cl 85(3) is clear.

47 In Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Ors (2000) 48 NSWLR 548 at [116] Spigelman CJ held and found as follows:

"The use of the word 'ambiguity' in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful: see Bowtell v Goldsborough Mort and Co Ltd (1905) 3 CLR 444 at 456 ­ 477; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 ­ 288; R Cross, Statutory Interpretation, 3rd ed (1995) at 83 ­ 84; and my Sir Ninian Stephen Lecture "Statutory Interpretation: Identifying the Linguistic Register" at 4 ­ 6 (1999) Newcastle Law Review 4 [1] at 1. In cases such as the present, which involve reading down general words (see R v Young (1999) 46 NSWLR 681 at 689 [23] ­ [25]), I would identify the difficulty for the interpreter as one of 'inexplicitness' rather than one of 'ambiguity'."

48 Similarly, in this case, the absence of an express provision at the commencement of cl 85 or in subclause (3) to limit the application of the subclause to the "Rural Residential" zone is an example of "inexplicitness" rather than "ambiguity". Consideration may not, therefore, be given to extrinsic material to assist in ascertaining the meaning of the provision under s 19(1)(b)(i) of the Interpretation Act.

49 As, on its proper construction, cl 85(3) does not require the approval of the Plan, cl 96 does not confer a right on WR Carpenter and Griffin to seek review of the Shire's decision to refuse to advertise it. In consequence, the proceedings are misconceived and must be dismissed.

50 The Shire's alternative submission that cl 96 does not confer a right to seek review of a decision to refuse to advertise a Development Guide Plan does not arise for determination. However, as this issue is of wider significance, it is appropriate to record that cl 96 would confer a right to seek review of the Shire's refusal to advertise in accordance with cl 25(4) where approval of a Development Guide Plan is required under the Scheme.

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51 In Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76 the Town Planning Appeal Tribunal constituted by its Deputy President upheld an appeal against the Shire's refusal to advertise a Development Guide Plan which was submitted under cl 85(3) of TPS 20 in relation to land zoned "Rural Residential" under the Scheme. It is apparent from [8] of the reasons for decision that it was the agreed position of the parties that an appeal right existed under cl 96 of TPS 20. The Deputy President did not, therefore, consider the question beyond noting the agreed position of the parties.

52 The Tribunal considers that cl 96 confers a right on an applicant for approval of a Development Guide Plan which is required to be approved under the Scheme to seek review by the Tribunal of the Shire's decision to refuse to advertise the plan under cl 25(4). Given that advertising of a draft Development Guide Plan is a necessary condition precedent to approval of the Plan under cl 25(5), an application for approval of a draft Development Guide Plan implicitly and necessarily involves an application for approval under the Scheme to the advertising of the plan under cl 25(4). An applicant who is aggrieved by a decision of the Shire to refuse to advertise a draft plan may, therefore, apply for review to the Tribunal under cl 96(1) of the Scheme.

53 Moreover, although under cl 15(3) and cl 96 an applicant may seek review of a deemed refusal of the plan after 180 days, as the formation of the requisite opinion under cl 25(4) by the Shire that the draft "adequately addresses the orderly and proper planning of the land" is not a function exercisable by it in approving a draft plan, the Tribunal would not have power under s 29(1) of the State Administrative Tribunal Act 2004 (WA) to form that opinion in order to enable advertising to take place in review proceedings concerning the deemed refusal of a draft plan: WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194 at [41]. An applicant for approval of a draft Development Guide Plan must, therefore, seek review of the Shire's refusal to advertise the plan under cl 96(1) before the Tribunal could review the deemed refusal of the plan under cl 96(1) and cl 96(2).

Order

54 It follows from these reasons that the proceedings are misconceived and must be dismissed. The Tribunal makes the following order:

Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the proceedings are dismissed.

(Page 18)

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER