ZORZI and TOWN OF CAMBRIDGE
[2025] WASAT 77
•28 JULY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: ZORZI and TOWN OF CAMBRIDGE [2025] WASAT 77
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 20 MAY 2025
DELIVERED : 28 JULY 2025
FILE NO/S: DR 28 of 2025
BETWEEN: LISA MAREE ZORZI
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Town planning - Development control - Written direction - Preliminary issue - Development approval - Principles to be applied in the construction of a development approval - Consideration of High Court's decision in Sunland Group v Gold Coast City Council - Extent of works authorised by the development approval
Legislation:
City of Perth Endowment Lands Act 1920 (WA)
City of Perth Restructuring Act 1993 (WA)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Protection Act 1986 (WA), s 51A, s 63, Sch 6, Div 2, Pt 5
Integrated Planning Act 1997 (Qld), s 6.1.31(2)(c)
Interpretation Act 1984 (WA), s 5, s 18
Metropolitan Region Scheme
Metropolitan Region Town Planning Scheme Act 1959 (WA)
National Security (Price) Regulations 1939 (Cth), reg 23
National Security Act 1939 (Cth)
Planning Act 2016 (Qld)
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 11, Sch 2, cl 1, cl 2, cl 60, cl 61, cl 61(1), cl 67, cl 67(2), cl 67(2)(fa), cl 67(2)(o), cl 67(2)(p), cl 67(2)(w), cl 68(1), cl 68(2), cl 73, cl 73(a), cl 73(b), cl 73(c), Div 2, Pt 2, Pt 3, Pt 7, Pt 8, Pt 9
Planning and Development Act 2005 (WA), s 3(1)(c), s 4(1), s 157, s 157(1), s 214(2), s 218, s 223, Pt 5, Pt 11A
Residential Design Codes Volume 1, P1.2.1(ii)
Sustainable Planning Act 2009 (Qld)
Town and Country Planning Act 1971 (UK)
Town of Cambridge Local Planning Scheme No 1, cl 8, cl 8(3), cl 9, cl 16(2), cl 25, cl 25(1), cl 37, cl 37(2)
Town of Cambridge Local Planning Strategy
Town Planning and Development Act 1928 (WA), s 7(3)
Town Planning and Development Act Amendment Act 1955 (WA), s 3
Result:
Application allowed
Written direction set aside
Category: A
Representation:
Counsel:
| Applicant | : | Ms V Saragih |
| Respondent | : | Mr C Slarke |
Solicitors:
| Applicant | : | Green Arc Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149; (2013) 84 SR (WA) 256
Agricorp Australia Pty Ltd t/as VMS Contractors and Shire of West Arthur [2025] WASAT 40
Aliraja v Susan Dukes, Commissioner of Titles [2025] WASCA 103
Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [No 2] [2024] WASC 250
Auburn Municpial Council v Szabo (1971) 67 LGRA 427
Australian Unity Property Limited as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Azar and City of Cockburn [2025] WASAT 56
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Bio-Organics Pty Ltd v The Chief Executive Officer, Department of Water and Environment Regulation [2018] WASC 236
Bradshaw and City of Joondalup [2020] WASAT 156
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 226 LGERA 54
Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301
Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210
Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150
City of Gosnells v Reid [2024] WASCA 155
City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 200
City of Noarlunga v Fraser (1986) 61 LGRA 324
City of Perth v Food Plus Pty Ltd (unreported, Supreme Court, WA, Full Court, Library No 4862 19 April 1983)
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96
City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228
Claude Neon Ltd v City of Perth [1983] WAR 147
Cockburn Cement Ltd v Cowie [2023] WASC 343
Conomos v Chryssochoides (1997) 97 LGERA 113
Daniele v Shire of Swan (1998) 20 WAR 164
Drake and City of South Perth [2005] WASAT 271
Edge Visionary Living Pty Ltd v Nairn [2016] WASCA 211 (2016) 221 LGERA 309
Fawcett Properties Ltd v Buckingham County Council [1961] AC 636
Forrest v City of Busselton [2024] WASC 478
Future Design Holdings Pty Ltd and City of Kalamunda [2022] WASAT 114
George v Shire of Irwin [2024] WASC 418
Glenbrook Nominees Pty Ltd and City of Perth [2009] WASAT 3; (2009) 61 SR (WA) 266
Glowpace Pty Ltd v South Sydney City Council [2000] NSWLEC 220; (2000) 111 LGERA 84
Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1; [1964] 1 WLR 240
Happy Cruising Pty Ltd v Magistrates Court of Western Australia [2025] WASCA 106
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
Hutchings and Shire of Augusta-Margaret River [2023] WASAT 96
Kemstone Investments Pty Ltd and City of Joondalup [2020] WASAT 115
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184
Kriticos v Paramatta City Council (1971) 21 LGRA 404
Landcorp and City of Stirling [2011] WASAT 202
Landpark and WAPC [2023] WASAT 130
Lovegrove Investments Pty Ltd and Shire of Waroona [2023] WASAT 99
Lovegrove Investments Pty Ltd and Shire of Waroona [2024] WASC 321
Matijesevic v Logan City Council [1984] 1 Qd R 599, (1983) 51 LGRA 51
Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349
Moles and City of Armadale [2021] WASAT 140
Mulcahy v Blue Mountains City Council (1993) 81 LGRA 302
Nairn v Metro-Central Joint Development Assessment Panel [2018] WASCA 18; (2018) 53 WAR 20
OMSB Pty Ltd and Shire of Ashburton [2025] WASAT 24
Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368
Oztran Aust Pty Ltd v Town of Port Hedland [2017] WASC 28; (2017) 220 LGERA 278
Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223
Parkes v Secretary of State for the Environment [1978] 1 WLR 1308
Parramatta City Council v Shell Company of Australia Ltd [1972] 1 NSWLR 483; (1972) 26 LGRA 25
Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337; (2007) 12 BPR 23793
Rainforests Reserves Australia Inc v Minister for Environment and Water [2025] FCA 532
Reid v City of Gosnells [2023] WASC 48
Roads Corporation v McCarthy [2004] VSC 369; (2004) 137 LGERA 433
Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWLR 277; (1970) 19 LGRA 321
Sanda Homes Pty Ltd v City of Whittlesea (Unreported, Supreme Court of Victoria, Eames J, 30 September 1994)
Sanders v City of South Perth [2019] WASC 226
Scott v Wollongong City Council [1992] NSWCA 227; (1992) 75 LGRA 112
Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5; [2007] QPELR 334
Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; 243 LGERA 89
Smith and City of Fremantle [2007] WASAT 153
Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88
South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160
Squarcini v State Planning Commission (unreported SCt of WA, (Scott J), Library No 960200, 17 April 1996
Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325
Taylor and WAPC [2023] WASAT 16
Television Corporation Ltd v The Commonwealth [1963] HCA 30; (1963) 109 CLR 59
Tipfast Pty Ltd v South Sydney City Council [2002] NSWLEC 85; (2002) 120 LGERA 292
Transpacific Industries Group v Ipswich City Council [2012] QPEC 69
Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598
Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59; (2019) 97 SR (WA) 270
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Van der Feltz v City of Stirling [2009] WASC 142; (2009) 167 LGERA 236
Vestey v Warrnambool City Council [2008] VCAT 963; (2008) 160 LGERA 204
Warr and Town of Cambridge [2020] WASAT 126
Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333
Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCATrans 148
Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245
Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWSC 716; (2006) ANZ ConvR 453
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
Westfield Management Ltd v Perpetual Trustee Company Limited (2005) NSWLEC 510
Westfield Management Ltd v Perpetual Trustee Company Limited [2007] HCATrans 367
Winn v Director General of National Parks [2001] NSWCA 17; (2001) 130 LGERA 508
Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51
REASONS FOR DECISION OF THE TRIBUNAL:
These reasons deal with a preliminary issue as to whether a development approval (Approval) granted to Ms Lisa Zorzi (Applicant) by the Town of Cambridge (Town or Respondent) on 8 October 2024, authorised the removal of a large tuart tree (Eucalyptus gomphocephala) (Tuart Tree) at the rear of her property, located in City Beach (Land).
Following the grant of the Approval, on 7 March 2025, the Applicant engaged a contractor to undertake felling works on the Tuart Tree.
The Respondent became aware of the tree felling, and, on 11 March 2025, issued the Applicant with a written direction (Direction) pursuant to s 214(2) of the Planning and Development Act 2005 (WA) (PD Act) to cease such works.
In issuing the Direction, the Respondent alleges that the Approval did not authorise the removal of the Tuart Tree and that, by undertaking such works, the Applicant was carrying out a 'tree damaging activity', contrary to the Town of Cambridge Local Planning Scheme No 1 (LPS 1 or Scheme).
The Applicant seeks a review of the decision to issue the Direction.
For the reasons that follow, I am satisfied that:
(a)the removal of the Tuart Tree involved 'works' which constituted 'development' for the purposes of LPS 1, and therefore required development approval, either by way of a standalone application, or as an aspect of an overall development approval for the Land;
(b)properly construed, the Approval authorises the removal of the Tuart Tree; with the result that,
(c)the Direction must be set aside.
Background
The following facts are not in contest.
The Approval
On 13 May 2024, the Applicant applied for development approval for a single house on the Land under both LPS 1 and the Metropolitan Region Scheme (MRS).
The Land is zoned Residential under LPS 1.
The Town issued the Approval on 8 October 2024, which incorporated a set of plans (Approved Plans). The Approved Plans did not expressly state that the Tuart Tree would be removed. However, a 'new' tree was shown in almost precisely the same location as the Tuart Tree. I will return to discuss, and construe, the Approval later in these reasons.
Local Planning Policy 3.25: Tree Retention
On 17 September 2024, the Town adopted Local Planning Policy 3.25: Tree Retention (LPP 3.25) for the purposes of advertising, pursuant to Div 2 of Pt 2 of the deemed provisions, which have effect as part of LPS 1.[1] On 10 December 2024, the Town formally adopted LPP 3.25.
[1] The deemed provisions are contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA); see also Azar and City of Cockburn [2025] WASAT 56 [23] - [24].
LPP 3.25 applies to:
(a)all privately owned lots zoned 'Residential' under LPS 1;
(b)applications for development approval (including applications to undertake 'tree-damaging activity' to a 'regulated tree') as well as subdivision proposals; and
(c)strategic planning proposals, such as proposed amendments to LPS 1 and structure plans.
LPP 3.25, seeks to inter alia protect 'regulated trees' from 'tree damaging activity'. Those terms are defined as follows:
Regulated tree
A living tree which has a:
a) Height of 8m or greater; and/or
b) Canopy width of 6m or greater; and/or
c) In the case of a tree with a single trunk, a total trunk circumference of 1m or greater, measured 1.4m above natural ground level; and/or
d) In the case of a tree with multiple trunks, a total trunk circumference of 1m or greater, with an average trunk circumference of 625mm or greater, measured 1.4m above natural ground level.
but excludes trees identified as a weed of national significance or a declared pest plant or as a diseased tree by an authorised Government agency.
Tree-damaging activity
Includes:
a) The killing or destruction of a tree;
b) The removal of a tree;
c) The severing of branches, limbs, stems or trunk of a tree;
d) The ringbarking, topping or lopping of a tree; and/or
e) Any other substantial damage to a tree.
LPP 3.25 includes a number of exemptions from the need to obtain development approval, including works undertaken in the context of bushfire management as well as maintenance pruning. These exemptions are to be read as part of the table of exemptions from the need to obtain development approval for 'works' provided for in cl 61(1) of the deemed provisions.
The Direction
On 18 December 2024, after the Approval had been granted, the Town emailed the Applicant and advised:
(a)it had adopted LPP 3.25;
(b)the Approval did not authorise the removal of the Tuart Tree;
(c)the Tuart Tree must be protected from any 'tree damaging activity', unless otherwise authorised by a further development approval; and
(d)any development application seeking to remove the Tuart Tree would need to be supported by an arborist report.
The Applicant did not make any further development application and as explained, engaged a contractor to fell several limbs off the Tuart Tree.
Those works were regarded by the Town as works comprising a 'tree damaging activity'. As a result, the Town issued the Direction requiring the 'tree damaging activity' to cease.
Case overview
The contest in this proceeding is whether the Approval, properly construed, authorises the removal of the Tuart Tree. The arguments put by each of the parties can be summarised as follows.
On the one hand, the Applicant submits that the Approval authorises the removal of the Tuart Tree. She says that the Approved Plans, which form part of the Approval, show a 'new' tree in, almost precisely, the same location as the Tuart Tree. Hence, the removal of the Tuart Tree was an aspect of the 'works' authorised by the Approval.
On the other hand, the Respondent's case is that it did not assess the Tuart Tree at the time it issued the Approval. That is so because, at that time, the Town did not assess the town planning consequences of the removal of trees on private land under its applicable planning framework.
Therefore, notwithstanding that a 'new' tree was shown on the Approved Plans, the Approval was not directed to, and did not engage with, the proposal to replace the Tuart Tree with a new tree. The Town says that is evinced by the fact that it did not impose a condition requiring the proposed new tree to be planted and maintained.
In the same way that the Approved Plans show furniture and other features, the Town submits that the proposed new tree, as well as other incidental aspects of the plans, did not form part of the 'development' approved by the Town under the Approval.
However, once LPP 3.25 was adopted, the Respondent commenced regulating 'tree damaging activities' being undertaken, or proposed to be undertaken, on residential land. Because, the Respondent submits, the Approval did not assess, and consequentially did not authorise, the removal of the Tuart Tree, LPP 3.25 applies.
Therefore, if the Applicant now intends to engage in 'tree damaging activity' with respect to the Tuart Tree, development approval is needed.
Applicable planning framework
LPS 1
For many years, the Land was within the City of Perth.
Following the passage of the Metropolitan Region Town Planning Scheme Act 1959 (WA), which led to the MRS, many metropolitan local governments, including the City of Perth, adopted by-laws as an interim planning measure.[2]
[2] See, for example, Warr and Town of Cambridge [2020] WASAT 126 [80(21)].
In 1971, the City of Perth adopted its first Planning Scheme which was replaced in 1985 by the City Planning Scheme.
On, and from, 1 July 1994, the City of Perth Restructuring Act 1993 (WA) had the effect of transferring the suburbs of City Beach, Floreat and Wembley from the City of Perth to the newly created Town of Cambridge. Thereafter, the Town commenced preparing a new local planning scheme for its municipal district.
LPS 1 commenced on 31 March 1998 and was made pursuant to the then Town Planning and Development Act 1928 (WA) (TPD Act). Once published, LPS 1 had 'full force and effect as if it were enacted by the [TPD Act]'.[3]
[3] TPD Act, s 7(3).
On 9 April 2006, the PD Act commenced and the TPD Act was repealed pursuant to s 4 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA). LPS 1 continued in force as a 'local planning scheme' and had effect as if enacted by the PD Act.[4]
[4] PD Act, s 68(1).
The aims of LPS 1 include: [5]
[5] LPS 1, cl 9.
(a)to control and guide development in a responsible manner …;
…
(d)to protect and enhance the health, safety and general welfare of the Town's inhabitants and the social, physical and cultural environment;
…
(i)… [to] ensure that development is carried out in an efficient and environmentally responsible manner which:
…
(iii)respects the natural environment;
…
(k)to facilitate the achievement of the objectives of an adopted Local Planning Strategy.
The objectives of the Residential Zone include 'to facilitate and encourage high quality design, built form and streetscapes throughout residential areas'.[6] The term 'streetscape' is defined to include, relevantly, 'the total visual impression gained from any one location within a street including the natural and man-made elements'.[7]
[6] LPS 1, cl 16(2).
[7] LPS 1, cl 37.
A word or expression not defined in LPS 1 has the same meaning as set out in the PD Act.[8] The PD Act defines 'development' as follows:[9]
development means the development or use of any land, including —
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works[.]
[8] LPS 1, cl 37(2).
[9] PD Act, s 4(1).
The Residential Design Codes (R Codes) are to be read as part of LPS 1.[10]
Deemed provisions
[10] LPS 1, cl 25.
The definition of 'development' in the PD Act, as it relates to activities which alter land, is picked up by the definition of 'works' in the deemed provisions, as follows:[11]
works, in relation to land, means:
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land; and
(b)the carrying out on the land of any excavation or other works[.]
[11] Deemed provisions, cl 1.
The regulation of 'development' is addressed in Pt 7 of the deemed provisions. Parts 8 and 9 deal with the making and assessment of applications for development approval.
Clause 60 provides that a person must not commence or carry out any works on, or use, land [within LPS 1] unless:
(a)a development approval has been obtained; or
(b)development approval is not required for the development under cl 61.
Clause 61(1) includes a Table that sets out an extensive range of works that do not require development approval, provided that any relevant conditions set out in the Table are complied with. The Table includes the following works.
Column 1
Works
Column 2
Conditions
The demolition or removal of any of the following —
(a) a single house;
(b) an ancillary dwelling;
(c) an outbuilding;
The works are not located in a heritage‑protected place.
…
…
The demolition or removal of a cubbyhouse.
The works are not located in a heritage‑protected place.
…
…
The erection of, or alterations or additions to, a single house on a lot.
(a) The R‑Codes apply to the works.
(b) The works comply with the deemed‑to‑comply provisions of the R‑Codes.
(c) The works are not located in a heritage‑protected place.
The erection or installation of, or alterations or additions to, any of the following on the same lot as a single house or a grouped dwelling —
(a) an ancillary dwelling;
(b) an outbuilding;
…
(e) a patio
(f) a pergola
(a) The R‑Codes apply to the works.
(b) The works comply with the deemed‑to‑comply provisions of the R‑Codes.
(c) The works are not located in a heritage‑protected place.
The installation of, or alterations or additions to, any of the following on the same lot as a single house or a grouped dwelling —
(a) a swimming pool;
(b) shade sails.
The works are not located in a heritage‑protected place.
…
…
The installation of a water tank.
(a) The water tank is not installed in the street setback area of a building.
(b) The volume of the water tank is no more than 5 000 L.
(c) The height of the water tank is no more than —
(i) for a tank fixed to a building — the height of the eaves of the building; or
(ii) for a tank that is not fixed to a building and is more than 1 m from each boundary of the lot — 2.4 m; or
(iii) for a tank that is not fixed to a building and is 1 m or less from a boundary of the lot — 1.8 m.
(d) The works are not located in a heritage‑protected place.
The erection or installation of a cubbyhouse.
(a) The cubbyhouse is not erected or installed in the street setback area of a building.
(b) The floor of the cubbyhouse is no more than 1 m above the natural ground level.
(c) The wall height of the cubbyhouse is no more than 2.4 m above the natural ground level.
(d) The building height of the cubbyhouse is no more than 3 m above the natural ground level.
(e) The area of the floor of the cubbyhouse is no more than 10m2.
(f) The cubbyhouse is not erected or installed within 1 m of more than 1 boundary of the lot
The erection or installation of a flagpole.
(a) The height of the flagpole is no more than 6 m above the natural ground level.
(b) The flagpole is no more than 200 mm in diameter.
(c) The flagpole is not used for advertising.
(d) There is no more than 1 flagpole on the lot.
(e) The works are not located in a heritage‑protected place.
The installation of solar panels on the roof of a building.
(a) The solar panels are parallel to the angle of the roof.
(b) The works are not located in a heritage‑protected place.
Maintenance and repair works.
Either —
(a) the works are not located in a heritage‑protected place; or
(b) the maintenance and repair works are of a kind referred to in the Heritage Regulations 2019 regulation 41(1)(b) to (i).
Clause 67(2) of the deemed provisions sets out the range of matters that the decisionmaker 'is to have due regard to', in determining an application for development approval. The chapeau to cl 67(2) provides that 'the local government is to have due regard to the following matters [which, where relevant, are listed below] to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application'.
As to the meaning of 'due regard', in City of South Perth v ALH Group Property Holdings Pty Ltd,[12] Martino J, found that, in the context of the PD Act, 'due regard' means to give that matter 'proper, genuine and realistic consideration'.
[12] In City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96, [46].
The matters identified in cl 67(2) include:
(a)the aims and provisions of this Scheme …;
(b)the requirements of orderly and proper planning including …;
…
(f)any policy of the State;
(fa)any local planning strategy for this Scheme endorsed by the Commission;
(g)any local planning policy for the Scheme area;
…
(n)the amenity of the locality including the following —
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
(p)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
…
(w)the history of the site where the development is to be located[.]
Clause 68(2) provides that a local government may determine an application for development approval by either granting approval with, or without, conditions or refusing to grant approval.
Clause 73 of the deemed provisions sets out the scope of the development approval, which may be granted:
(a)for the development for which the approval is sought; or
(b)for the development for which the approval is sought, except for a part or aspect of that development specified in the approval; or
(c)for a part or aspect of the development for which approval is sought that is specified in the approval.
Local planning strategy
By reason of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA),[13] the Town is required to prepare a local planning strategy for LPS 1. A local planning strategy sets out the longterm planning directions for the scheme area.[14] The Town's Local Planning Strategy (Strategy) was endorsed by the Western Australian Planning Commission (WAPC) on 29 April 2021.
[13] Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Pt 3, reg 11.
[14] Deemed provisions, cl 2.
The Strategy notes that City Beach and Floreat are both suburbs designed on what are known as 'garden city' principles, and that City Beach is characterised by open and landscaped spaces and reserves integrated with residential developments.[15] Indeed, taking account of the history of the site,[16] the land that now comprises City Beach and Floreat was transferred to the (then) City of Perth via the City of Perth Endowment Lands Act 1920 (WA), which predated the TPD Act and has been recognised as being the State's first town planning legislation.[17]
[15] Strategy, page 27.
[16] Deemed provisions, cl 67(2)(w).
[17] Robert Freestone, Model Communities: The Garden City Movement in Australia, 1989, Thomas Nelson, Melbourne, page 206 (Model Communities).
In the 1920s, the City of Perth consulted the then Town Planning Association of Western Australia (TPAWA) on the development of the Endowment Lands. At that time, the TPAWA, and its members, were very much promoting garden city principles.[18] History notes that 'a strong commitment to garden city principles pervaded all planning discussions' as to the development of the Endowment Lands.[19]
[18] Jenny Gregory, (2009) 'Let our watchword be 'order' and our beacon 'beauty': achieving town planning legislation in Western Australia', Cities, Citizens and Environmental Reform, edited by R Freestone, Sydney UP, Sydney, page 181.
[19] Model Communities, page 207.
Garden cities are premised on the utopian idea of Ebenezer Howard,[20] an English town planner. The garden city principles seek to, in effect, blend urban and rural life, and to provide a clear and tangible separation between residential estates and industrial factories.
[20] Ebenezer Howard, (1902) Garden Cities of Tomorrow, Random House, USA.
Howard's garden city concept was a reaction against, and a response to, the heavy pollution evident in industrial cities in 19th Century Britain, where workers routinely lived in overcrowded, substandard, and poorly constructed housing, in chronically congested areas, close to the industrial factories where they worked.[21]
[21] See, for example, Hall P (1988) 'Chapter 2: the City of Dreadful Night' in Cities of Tomorrow: An Intellectual History of Urban Planning and Design Since 1880, Wiley Blackwell Publishers Inc, Massachusetts, USA.
As its name suggests, the garden city ideal embodies the notion that, relevantly, residential estates should have the tranquil appearance, and feel, of a garden setting. These estates should appear green and landscaped to mark the contradistinction between residential areas and the polluted industrial locations where people worked. Axiomatically, the notion of living in a garden estate speaks to the presence of a landscape comprising green open spaces, vegetation and trees.
Since their conception, City Beach and Floreat have been planned, designed and delivered as residential areas which embody and reflect garden city principles. Their garden city heritage is expressly recognised, even embraced, in the Strategy.[22] Perhaps more importantly though, there is nothing in the Strategy that suggests that the underlying garden city principles, upon which City Beach has been planned and designed, have been abandoned.
[22] Strategy, pages 27 and 30.
Indeed, the Strategy expressly identifies 'the key features of attractive streetscapes found in the Town include significant tree canopy'.[23] Under the theme 'public realm and open space' the Strategy sets out the following objective:[24]
Tree Canopy: To maintain and expand upon the tree canopy throughout all suburban and urban precincts.
[23] Strategy, page 28.
[24] Strategy, page 9.
LPS 1 provides that it is to be read in conjunction with the Strategy.[25] Furthermore, the Strategy is a matter identified in cl 67(2) as being relevant in the exercise of planning discretion.[26]
[25] LPS 1, cl 8(3).
[26] Clause 67(2)(fa).
The town planning concept of 'development'
The TPD Act commenced on 1 November 1929. However, a definition of 'development' was not included in the TPD Act until the Town Planning and Development Act Amendment Act 1955 (WA),[27] which introduced the following:
'development' means the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works on any land[.]
[27] Town Planning and Development Act Amendment Act 1955 (WA), s 3.
The case of University of Western Australia v City of Subiaco (UWA),[28] focused on an argument that the University did not need development approval for the construction of a new human movement and recreation building at its Crawley campus. The University's argument was that approval was not required because the campus was reserved for university purposes in the MRS.
[28] University of Western Australia v City of Subiaco (1980) 52 LGRA 360.
In finding that development approval under the MRS was required for the erection of the proposed buildings, Burt CJ explained that the term 'development', as used in the TPD Act, made use of, and encompassed, two ideas:[29]
The first is the 'use' of land which 'comprises activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself'.
[29] UWA, 364.
That is, while the use of the Crawley campus for university uses was authorised as of right under the MRS, development approval was still required for the erection of buildings associated with that use. That is, the second limb of 'development', being activities that bring about some level of permanent physical alteration to land, did require approval notwithstanding the right to use the campus for university purposes.
In UWA, Burt CJ referred to the decision of the UK Court of Appeal in Parkes v Secretary of State for the Environment,[30] where Lord Denning MR, found that the 'storing, sorting and processing of scrap metal', which involved no physical alteration to land, nevertheless amounted to the 'use of land' for the purposes of the Town and Country Planning Act 1971 (UK).
[30] Parkes v Secretary of State for the Environment [1978] 1 WLR 1308, 1311.
Burt CJ's explanation and application of the term 'development', in the context of the TPD Act, was subsequently approved by the Full Court in City of Perth v Food Plus Pty Ltd[31] (a case involving the conversion of two service station sites into 'convenience stores') and later in Daniele v Shire of Swan[32] (a case involving the placement of 20 derelict railway carriages on rural living land).
[31] City of Perth v Food Plus Pty Ltd (unreported, Supreme Court, WA, Full Court, Library No 4862 19 April 1983), pages 1 - 2 (Wickham, Wallace and Pidgeon JJ).
[32] Daniele v Shire of Swan (1998) 20 WAR 164, 168 - 169 (Ipp J, Pidgeon J and Owen J agreeing).
Claude Neon Ltd v City of Perth (Claude Neon),[33] involved a proposal to erect two neon signs on buildings in the City of Perth. In Claude Neon, Pidgeon J also adopted Burt CJ's analysis from UWA, but emphasised that, in all instances, the question of whether the threshold point of whether the proposed use or development of land was 'development' is a matter of degree. That is to say, the common law principle of de minimis applies, as well as the fact that written laws are required to be constructed in a purposive manner.[34] Pidgeon J set out the following:[35]
I consider the matter before me must be approached on the basis that the definition makes use of and encompasses the two ideas referred to by the Chief Justice.
If one applied the two ideas disjunctively and went to extremes then development could comprise almost any activity down to a professional man displaying his name on a small sign on the wall of his office or it could be comprised in the change in tenancy of part of a building from a person of one profession to another. I do not consider that this is a proper result. The Chief Justice was not, in my view, providing any complete or exhaustive definition but was referring to two ideas encompassed by the definition of development and applying that distinction to the case before him. I would consider that there is an element of degree to be considered before an activity reached the stage of its being a development.
The Chief Justice referred to the concept of 'some degree of permanence to the land itself' when referring to 'activities which result in some physical alteration to the land'. The Tribunal also considered the question of degree in the case before it.
I would consider that it is at all times a matter of degree. Work could be of such a minor nature that it could not have been intended that it be encompassed within the concept of Town Planning and Development.
…
I consider therefore that the answer to the first question is dependent upon a finding of fact as to the degree of change of use or physical alteration to the land and it would include as envisaged by the Chief Justice an examination of the degree of permanence of the physical alteration. It must be looked at subjectively having regard to the location of the land concerned and the area it is in[.]
[33] Claude Neon Ltd v City of Perth [1983] WAR 147.
[34] In this regard see Mulcahy v Blue Mountains City Council (1993) 81 LGRA 302, 305 - 308 (Mahoney JA).
[35] Claude Neon, 149 - 150.
Pidgeon J also referred to the decision of Street J in Parramatta City Council v Shell Company of Australia Ltd (Parramatta CC),[36] a decision relating to whether the depositing of 1,200 cubic yards of fill on certain land constituted 'development'. Street J stated as follows:[37]
As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a 'work', and thus a 'development', within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a 'work'. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a 'work'. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a 'work'. But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point 8 feet 6 inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this, is, in my view, a 'work' within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to 'development' …
[36] Parramatta City Council v Shell Company of Australia Ltd [1972] 1 NSWLR 483; (1972) 26 LGRA 25.
[37] Paramatta CC, 31.
Burt CJ's analysis of the concept of 'development' in UWA has been endorsed by the Court of Appeal on many occasions, including in Shire of Murray v IVO Nominees Pty Ltd (IVO Nominees),[38] which involved the clearing of 11 hectares of vegetation, as well as drainage works, on a farming property. Indeed, UWA continues to be the locus classicus in relation to understanding the concept of 'development' for town planning purposes in this State.
[38] Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; 243 LGERA 89 [39] (Buss P, Mazza and Beech JJA); see also Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [107] - [110] (Buss P, Mitchell JA); Happy Cruising Pty Ltd v Magistrates Court of Western Australia [2025] WASCA 106 [9] - [10] (Mitchell JA, Hall JA, Archer JA).
Development approvals: general principles
In general terms, a development approval, once acted upon, attaches to the land and operates as a right in rem for the benefit of future owners and occupiers. Unless expressed to be time-limited, a development approval will generally endure for as long as the user wishes to rely on it.
The terms of a development approval may not always be clear. Over time, questions may arise as to the scope and effect of a development approval. Those questions may relate to precisely what activities or, as is the case here, works are, authorised by the approval. There may also be uncertainty as to how approval conditions are to operate.
When interpreting a development approval, there may be a need to identify what documents form part of the approval so as to determine its scope and effect. For example, questions may arise as to whether the development approval incorporates the application for approval, associated plans as well as other documents that are referred to by its terms.
The documents that comprise a development approval
In OMSB Pty Ltd v Shire of Ashburton (OMSB),[39] Jackson DP recently cited the following passage of Spigelman CJ in Winn v Director National Parks and Wildlife (Winn) on the nature of a development approval:[40]
A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has ... an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.
[39] OMSB Pty Ltd and Shire of Ashburton [2025] WASAT 24 [113].
[40] Winn v Director General of National Parks [2001] NSWCA 17; (2001) 130 LGERA 508 [4].
In general terms, the question as to what documents comprise a development approval must be answered by focusing on the approval itself. The approval will generally include conditions that must be complied with, as well as the references to plans.
A development approval will often expressly incorporate the approved plans by stamping them 'approved' or otherwise identifying, by its terms, those plans which have been approved. In such instances, the approved plans are incorporated into and are to be read and applied as part of, the approval. Other documents may be incorporated into a development approval either expressly, or by necessary implication.
In City of Gosnells v Reid (Reid Appeal),[41] the Court of Appeal set out that, in Western Australia, the content and scope of a development approval, granted under a local planning scheme, is addressed by cl 73 of the deemed provisions.[42] Buss P and Vandongen JA stated:
… it is the development for which development approval is sought that will mark out the boundaries of any development approval that is granted under the relevant statutory scheme, subject to anything specified in an approval granted under cl 73(b) or 73(c) of the deemed provisions[.]
[41] City of Gosnells v Reid [2024] WASCA 155 (Buss P & Vandongen JA) [44]; [615] - [616] (Lundburg J).
[42] Set out at [43] above.
In OMSB,[43] Jackson DP, consistent with the Court of Appeal's analysis in the Reid Appeal, explained that the effect of cl 73 of the deemed provisions, is that the application for approval itself forms part of the development approval, and, accordingly, must be taken account of when construing its scope and terms. That is, it is the development that has been applied for, and which is consequently approved, that marks out the metes and bounds of the development approval.
[43] OMSB [98].
Whether a development approval, by its terms, incorporates any extrinsic documents must be construed objectively consistent with the applicable principles of interpretation. For reasons which will become apparent, it is necessary for me to canvass those principles, which I turn to next, in some detail in these reasons.
Interpreting development approvals
In Forrest v City of Busselton (Forrest),[44] Musikanth J recently recited a number of well-known principles that apply to the construction of a development approval. Those principles include that a development approval:
(a)is a unilateral act of the planning authority 'expressed in a formal manner, required and intended to operate in accordance with its own terms';[45]
(b)has an 'inherent quality that it will be used for the benefit of subsequent owners and occupiers … [and] … must be construed in accordance with its enduring functions';[46]
(c)is not the result of a bargaining process between the parties. The meaning of a development approval 'must be determined objectively, having regard to those matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority';[47]
(d)has an enduring quality such as to encourage a fair but liberal reading of the rights it confers upon a landowner, who may spend considerable money acting upon it and who is likely, at some point, to seek to sell the land in question;[48]
(e)and its conditions, 'are to be construed, not as documents drafted with legal expertise, but to achieve practical results';[49]and
(f)applies according to its terms, and not on the basis of any understanding (or misunderstanding) of the planning authority in granting the approval.[50]
[44] Forrest v City of Busselton [2024] WASC 478 [34] - [38].
[45] Winn [4].
[46] Winn [4].
[47] Allandale [42]; see also Aquila Steel Pty Ltd v BHP Minerals Pty Ltd [No 2] [2024] WASC 250 [152] (Archer J).
[48] House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 [41]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) [2017] NSWCA 263; (2017) 226 LGERA 54 [158(2)].
[49] Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 [36] (Hodgson JA, Tobias JA and Basten JA agreeing); Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 [96] (Tobias JA, Young JA and Bergin CJ in Eq agreeing).
[50] Drake and City of South Perth [2005] WASAT 271 [86].
In addition, the Tribunal has also endorsed a number of principles that apply to the construction of development approvals.
In Snowdale Holdings Pty Ltd v City of Swan (Snowdale),[51] by reference to the Planning and Environment Court of Queensland's decision in Serenity Lakes Noosa Pty Ltd v Noosa Shire Council (Serenity Lakes)[52] (then) McNab SM adopted, relevantly, the following principles (internal citations omitted):
(a)where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the landowner;
(b)if a condition is imposed which restricts an approval, it should be expressed fairly;
…
(f)in construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for. The words should not be scrutinised in the same way as words used by the parliamentary draftspersons;
[51] Snowdale Holdings Pty Ltd and City of Swan [2015] WASAT 88 [14].
[52] Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5; [2007] QPELR 334 [6] (Wilson DCJ).
The principles adopted by the Tribunal in Snowdale were later endorsed by (then) Parry DP in Castle and City of Rockingham (Castle). They were also subsequently approved by Archer J (as her Honour then was) in Reid v City of Gosnells (Reid).[53]
[53] Reid v City of Gosnells [2023] WASC 48 [220] - [221].
In Snowdale, McNab SM, by reference to his earlier decision in AAA Egg Company Pty Ltd and Shire of Gingin,[54] explained that, in circumstances where the terms of a development approval were ambiguous or unclear, the approval should be, in effect, construed against the planning authority, was 'well-established [as a principle of] planning law in Queensland'.[55]
[54] AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149; (2013) 84 SR (WA) 256 [28] citing Transpacific Industries Group v Ipswich City Council [2012] QPEC 69 [14] (Robin J).
[55] Snowdale [48].
In this regard, McNab SM's observation was undoubtedly correct. The relevant principle derived from the decision of the Full Court of the Supreme Court of Queensland in Matijesevic v Logan City Council (Matijesevic).[56]
[56] Matijesevic v Logan City Council [1984] 1 Qd R 599, (1983) 51 LGRA 51.
In Matijesevic, an approval was issued in 1970 to allow a building to be used for the 'purpose of light industry - spray-painting or panel beating'. The use of the building commenced for the approved purpose. In 1976, an application was made to '[extend the] existing workshop' and to allow the extended building to be used for a 'panel beating and spraypainting workshop'. An approval condition stated that the 'consent is valid for five years after which the use of the site for panel beating and spray painting shall cease, and no further extensions of time will be approved'.
The planning authority subsequently contended that the 1976 approval nullified the 1970 approval such that the time-limit applied to the entire site.
The landowner sought a declaration. Connolly J (Campbell CJ and Matthews agreeing) found, inter alia, that the two approvals had to be read together and were not inconsistent. Accordingly, the time-limit only applied to the extension granted in 1976. Connolly J stated:[57]
Planning decisions are apt to have considerable effects on the value of property and in my judgment, it would accord with principle, where planning approvals are ambiguous, to construe them in the way which places the least burden on the landowner.
[57] Matijesevic [57].
The decision in Matijesevic is broadly consistent with the principles enunciated in the earlier decision of the Supreme Court of New South Wales in Ryde Municipal Council v Royal Ryde Homes (Ryde MC),[58] in relation to the hours of operation for a hospital laundry.
[58] Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWLR 277; (1970) 19 LGRA 321 (ElseMitchell J).
In that case, the application for approval provided that the laundry's proposed hours of operation were to be '7:30 - 4:30 weekdays'. The council advised the applicant that, after consultation with the State Planning Authority, no objection was raised to the proposal. However, no formal consent, or any other documents purporting to authorise the laundry, was issued. The fact of the approval was recorded only in a council ledger. The only reference to operating hours was in the original application made for approval. Following the laundry's commencement, the council took legal action, alleging non-compliance with the approved hours of operation.
In Ryde MC, Else-Mitchell J stated:[59]
It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but endures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.
I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.
[59] Ryde MC, 324.
The above analysis from Ryde MC was cited with approval by Tobias JA (Young JA and Bergin CJ in EQ agreeing) in the New South Wales Court of Appeal decision in Baulkham Hills Shire Council v Koveda Holiday Park Estate (Baulkham Hills).[60]
[60] Baulkham Hills Shire Council v Ko-veda Holiday Park Estate [2009] NSWCA 160; (2009) 167 LGERA 395 [95].
The High Court's decision in Sunland
The principles that apply to the construction of development approvals were considered by the High Court in the 2021 decision of Sunland Group Ltd v Gold Coast City Council (Sunland).[61]
[61] Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 274 CLR 325.
In Sunland, two High Court justices (Stewart J and Gordon J) discussed the principles that apply to the construction of the terms of a development approval. In my view, their Honours' reasons warrant some reflection having regard to the principles that have been endorsed in this State, including in cases such as Snowdale, Castle and Reid, to which I have referred.
It is therefore timely to consider the implications, if any, that arise from the High Court's reasons in Sunland.
The dispute in Sunland
Sunland involved a challenge to four 'conditions', relating to infrastructure contributions, that were imposed on the developer in the granting of a 'preliminary [development] approval'.
The regime for development contributions in Queensland was amended via the Integrated Planning Act 1997 (Qld) (IP Act). The effect of such amendments was that, rather than requiring development contributions to be imposed via conditions on a development approval, they could instead be levied by issuing a notice.
However, as an interim measure, s 6.1.31(2)(c) of the IP Act preserved the capacity of a local government to impose a condition on a development approval requiring a contribution towards the cost of infrastructure. The new regime for infrastructure contributions was maintained in the transition from the IP Act to the Sustainable Planning Act 2009 (Qld) and later the Planning Act 2016 (Qld) (Planning Act).
The disputed conditions provided that '[infrastructure] contributions shall apply at the time application is made for a Development Permit' and would be 'calculated at rates current at due date of payment'.
Arguments put to the High Court
In Sunland, the developer alleged, and the Council disputed, that the conditions in question were an invalid attempt to levy an infrastructure contribution pursuant to s 6.1.31(2)(c) of the IP Act. The developer's case, consistent with principles set out in Serenity Lakes, was that the conditions for infrastructure contributions were ambiguous and thus should be resolved in its favour.
By reference to the decision in Matijesevic, the developer framed its case before the High Court on the basis that the disputed conditions should be given 'a sensible and operative construction, and to the extent necessary, to construe them contra proferentem - that is, in the way which places the least burden on the landowner'.[62]
[62] Appellants' Submissions, 1 December 2020, para 42; >
On the other hand, the Council contended that the requirement for the infrastructure contribution arose under the Planning Act, in accordance with the new regime for such contributions, and not via conditions imposed on a preliminary development approval. The disputed conditions merely had the effect of advising the developer of the basis on which a contribution for infrastructure would become payable at a later point.
The High Court's decision in Sunland
The High Court, by majority, held that the conditions set out in the preliminary approval did not purport to be, and were not, conditions of the kind authorised by s 6.1.31(2)(c) of the IP Act. The conditions did not seek to, nor did they, create any liability by which the developers were required to pay infrastructure contributions.
Rather, the conditions served as notice of the Council's then intention to require contributions to infrastructure at the time an application was made for a development permit.
Furthermore, the High Court unanimously held that even if the conditions did purport to create a liability to pay infrastructure contributions pursuant to s 6.1.31(2)(c), they were not a valid exercise of that power. That is because the conditions failed to specify a date or time for the making of the contribution and were thus too uncertain.
However, what is important for present purposes is the discussion on the principles that apply to the construction of a development approval. In this regard, Sunland comprised three written judgments.
The plurality
The majority (Kiefel CJ, Keane and Gleeson JJ) agreed with the conclusions of Stewart J, and adopted his summary, but set out their own reasons as to why the appeal should be dismissed.[63]
[63] Sunland [1].
The plurality explains that, based on the 'ordinary and natural meaning' of the disputed conditions, they 'did not purport to impose a condition … requiring … a contribution towards the cost of supplying infrastructure'.[64] While their Honours said nothing further about the principles which govern the construction of a development approval, the reference to the 'ordinary and natural meaning' of the disputed conditions itself constitutes the orthodox approach to construction.
Stewart J
[64] Sunland [2].
Stewart J did not accept the developer's submissions that a development approval, including the disputed conditions, should:
(a)be construed, in a manner akin to a contract, to preserve its validity and to avoid uncertainty;;[65] and,
(b)not be scrutinised 'in the same way as the words used by a parliamentary draftsperson'.[66]
[65] Sunland [50].
[66] Sunland [51].
In rejecting the developer's submission as to the applicable principles governing development approvals, Stewart J set out that:[67]
[The disputed conditions] are not to be construed like any other contract, but rather in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments.
[67] Sunland [58].
In support of that principle, Stewart J[68] referred to the ex-tempore oral reasons of the High Court, where it refused to grant special leave in Westfield Management Ltd v Perpetual Trustee Company Ltd (Perpetual Trustee).[69]
Gordon J
[68] Sunland [58].
[69] Westfield Management Ltdv Perpetual Trustee Company Limited [2007] HCATrans 367 (1 August 2007) at 126 - 127 (Gleeson CJ, Gummow J, Kirby J, Hayne J and Heydon J).
Gordon J[70] published dissenting reasons. Relevantly, her Honour also rejected the developer's approach to the construction of development approvals. Like Stewart J, Gordon J concluded that development approvals are to be construed in accordance with the principles set out in King Gee Clothing and Cann's Pty Ltd,[71] and stated further:
[The appellant's] contention that the existence of ambiguity in the instrument does not itself result in invalidity and that, where possible, ambiguity should be resolved against the Council as the drafter of the Preliminary Approval is contrary to principle and precedent … Where there is an exercise of power for the imposition of a charge, the very nature of the power usually necessitates certainty in the imposition of the charge.[72]
The background to Sunland: the Glasshouse litigation
[70] Sunland [21].
[71] King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 and Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210.
[72] Internal citations omitted.
In Sunland, both Stewart J and Gordon J endorsed, and followed, the oral reasons of the High Court in refusing special leave in Perpetual Trustee. Accordingly, to properly understand Sunland, it is necessary to say something more about Perpetual Trustee.
Perpetual Trustee arose from a protracted dispute relating to the access arrangements for four commercial sites, each of which fronted the Pitt Street Mall in Sydney. At the heart of the dispute was an easement which burdened a site (Glasshouse) and provided access for the benefit of an adjoining property (Skygarden).
Perpetual Trustee Company Ltd (PTC) owned the Glasshouse site, for which development approval was granted in 1986. The development approval included a condition requiring access to be provided for the benefit of an adjoining lot. That condition became known as Condition 56, the effect of which was that an existing right-of-way, that serviced the basement level parking within the Glasshouse, be extended for the benefit of not only Skygarden, but the adjoining additional properties (Imperial Arcade and Centrepoint). Skygarden, Imperial Arcade and Centrepoint were all owned by Westfield Management Ltd (WML). The planning purpose of Condition 56 was to limit the movement of vehicular traffic around the Pitt Street Mall. Condition 56 stated as follows:
Documentary evidence shall be provided, to the satisfaction of the City's Solicitor, that the right of way currently applicable to the subject property in favour of the adjoining property, is extended to cover the right of way to the 'Imperial Arcade' site and the 'Centrepoint' site, with reciprocal rights where necessary and such rights shall embody a provision ensuring their application in perpetuity except with the consent of the council.
At first instance, before Talbot ACJ in the Land & Environment Court,[73] WML were unsuccessful in seeking a declaration that PTC had failed to comply with the requirements of Condition 56. However, PTC successfully obtained a declaration that Condition 56 was invalid, on the basis that it was uncertain.
[73] Westfield Management Ltd v Perpetual Trustee Company Limited (2005) NSWLEC 510.
WML appealed and Talbot ACJ's decision was overturned by the Court of Appeal in Westfield Management Ltd v Perpetual Trustee Co Ltd (Westfield Management).[74] The Court of Appeal took the view that Condition 56 ought to be construed like a contract, so as to preserve its validity and that it should not be too carefully scrutinised, in the way that a written law would be. Hodgson JA ultimately concluded:[75]
Plainly, the Council intended to achieve something substantive by condition 56, and it should be construed if possible so as to give effect to that intention.
[74] Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 [40] (Hodgson JA, Tobias and Basten JJA agreeing).
[75] Westfield Management [40].
It was the Court of Appeal's decision in Westfield Management, that a development approval was to be construed in a manner akin to a contract, so as to preserve its validity, that would proceed to the High Court for consideration in Perpetual Trustee.
However, at the same time, proceedings were commenced by WML in the Equity Division of the New South Wales Supreme Court, relating to the construction of the terms of the easement.[76] WML sought a declaration that the easement permitted it, as the owner of the Glasshouse, to allow persons or vehicles to use the driveway to continue over (more precisely, under) Skygarden, to access the adjoining basements of both Imperial Arcade and Centrepoint. WML argued that because it also owned these adjoining lots, they too should be permitted to utilise the easement across the Glasshouse site.
[76] Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWSC 716; (2006) ANZ ConvR 453.
At first instance, Brereton J granted the declaratory relief sought by WML. However, that decision was overturned by the Court of Appeal.[77]
[77] Perpetual Trustee Co Limited v Westfield Management Limited [2006] NSWCA 337; (2007) 12 BPR 23793.
Accordingly, there were two related matters between PTC and WML being litigated concurrently. The first being the validity of Condition 56, the second being the proper construction of the easement instrument between Glasshouse and Skygarden.
In each matter, an application for special leave was made to the High Court. Special leave was granted for the dispute relating to the construction of the easement on 24 April 2007.[78] On 21 June 2007, when the application for special leave relating to the validity of Condition 56[79] came on, the bench declined to hear oral argument. Rather, the question of special leave was to be heard together with the substantive hearing in relation to the easement dispute.
[78] Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCATrans 148.
[79] No S166 of 2007.
The hearing proceeded over two days. At the conclusion of oral argument on the second day, while the High Court reserved judgment in the easement matter, which was later published as Westfield Management Ltd v Perpetual Trustee Co Ltd,[80] it gave ex tempore reasons refusing special leave in relation to Condition 56 as follows:[81]
We are in a position to give judgment now in matter S166 of 2007, which is the application for special leave to appeal. There are insufficient prospects of success in disturbing the outcome in the New South Wales Court of Appeal to warrant a grant of special leave. [The disputed condition] is to be construed and its validity assessed in accordance with the principles explained by Justice Dixon in [King Gee Clothing] and [Cann's Pty Ltd], and not by recourse to those principles directed to saving bargains between consensual parties and stated by Chief Justice Barwick in Upper Hunter County District Council v Australian Chilling and Freezing Company Limited (1968) 118 CLR 429 at 436 to 437.
[80] Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
[81] Perpetual Trustee Company Limited and Westfield Management Limited 2007 HCATrans 367.
It is this reasoning that was later followed by both Stewart J and Gordon J in Sunland.
Implications from Sunland
While Sunland is no doubt significant in planning law terms, in my view, its implications for the construction of development approvals in this State is not yet clear.
That is because there was no majority decision that authoritatively sets out the principles which govern the construction of development approvals. The plurality did not adopt the reasons of Stewart J, only his conclusions. Gordon J dissented.
Nevertheless, a number of issues arising from Sunland warrant discussion. It is these issues which I now turn to.
Issue A: the doctrine of uncertainty in development approval conditions
It is important to appreciate that at the core of Sunland was the developer's argument that the disputed conditions, which were broadly directed toward the need for it to make, at some point, significant infrastructure contributions, were uncertain and therefore invalid. That argument was premised on the common law conception of uncertainty.[82]
[82] Rainforests Reserves Australia Inc v Minister for Environment and Water [2025] FCA 532 [177] (Shariff J).
If the developer's argument had succeeded, the practical consequence was that it would escape liability to make the relevant contributions for infrastructure, in the context of what was a significant multi-staged residential development on the Gold Coast named 'Lakeview at Mermaid'.
Accordingly, the relevant principle that arises most crisply from Sunland, and which is consistent with a long line of authorities, is that mere ambiguity in a development approval or condition does not, of itself, result in invalidity.[83]
[83] For example: Weigall 351 - 352; Sanda Homes Pty Ltd v City of Whittlesea (Unreported, Supreme Court of Victoria, Eames J, 30 September 1994) 14 - 15; Roads Corporation v McCarthy [2004] VSC 369; (2004) 137 LGERA 433 [56] (Osborn J); City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228 [18] - [19] (Blaxell J); Scott v Wollongong City Council (1992) 75 LGRA 112, 119 (Samuels AP); Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51, 56 (Holland J).
In this sense, Sunland says nothing new. Courts have, for many years now, iterated and reiterated that, while difficult at times, they must not sacrifice their task of constructing an apparently unclear development approval too readily on the altar of uncertainty. Rather, they must, if possible, strive to give meaning to the words used.
As Lord Denning said in Fawcett Properties Ltd v Buckingham County Council:[84]
The duty of the court is to put a fair meaning on the terms used, and not, as was said in one case, to repose on the easy pillow of saying that that whole is void for uncertainty …
I am of opinion that a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them. And this applies to conditions in planning permissions as well as to other documents.
[84] Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, 678.
As was also emphasised by Gordon J in Sunland,[85] 'the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' and that that task remains, even where ambiguity or uncertainty arises. There is no general principle in Australian law that uncertainty in an executive instrument equates to legal invalidity.[86]
[85] Sunland [18] - [19].
[86] Sunland [21] (Gordon J); Television Corporation Ltd v The Commonwealth [1963] HCA 30; (1963) 109 CLR 59, 71 (Kitto J); Bio-Organics Pty Ltd v The Chief Executive Officer, Department of Water and Environment Regulation [2018] WASC 236 [27] (Allanson J).
It is the rejection of the argument that an apparently ambiguous approval condition ought to be construed against the planning authority and declared invalid, the practical consequence of which would be to relieve the developer of its burden to pay infrastructure contributions, which emerges most clearly from Sunland.
However, in rejecting that argument, the reasons of both Stewart J and Gordon J also constitute a rejection of what was, in Sunland, termed the principle of contra proferentem. Their Honours refused to endorse the contra proferentem argument, as urged by the developer, on the basis that it is a principle that derives from contract law, and not the unilateral exercise of administrative power, as is the case with the grant of a development approval. Gordon J characterised the developer's submission in that regard as 'contrary to principle and precedent'.[87]
[87] Sunland [21].
Accordingly, while there were no majority reasons in Sunland, to the extent that cases such as Snowdale, Castle and Reid endorse the principle that an ambiguous development approval should be construed against the planning authority, in a manner that places the least burden on the developer, these authorities should now, in my view, be approached with caution.
In this sense, I note that in Cockburn Cement Ltd v Cowie (Cockburn Cement),[88] Derrick J, without needing to refer to Sunland, rejected a contra proferentem argument that ambiguous licence conditions issued under the Environmental Protection Act 1986 (WA) (EP Act) should, based on the principles in Snowdale, 'not be construed in an overly technical manner' and 'resolved so as to place the least burden on the operator'.[89]
[88] Cockburn Cement Ltd v Cowie [2023] WASC 343.
[89] Cockburn Cement [153].
His Honour stated:[90]
The Licence is a statutory regulatory instrument. It is issued pursuant to the provisions of the Act and has as its essential purpose ensuring that the appellant operates the premises in accordance with the purposes and provisions of the Act. The contravention of the Licence is itself a criminal offence. Accordingly, in my opinion the approach to be adopted in construing a condition of the Licence is not materially different to the process of statutory construction. Although it can appropriately be borne in mind that the Licence is not an Act of Parliament and is unlikely to have been drafted with the same rigour as an Act of Parliament, it nonetheless remains necessary to focus on the wording of the relevant condition considered in the context of the terms of the Licence as a whole and the objectively discerned purpose of the Licence and the Act.
Issue B: whether Sunland constitutes a change in approach to the principles which govern the construction of development approvals
[90] Cockburn Cement [161] (internal citations omitted).
Before Sunland, the accepted approach to the construction of development approvals was set out by Blaxell J in City of Swan v Investments (WA) Pty Ltd (Investments WA),[91] where his Honour endorsed and applied the reasoning set out by Wilmer LJ, of the English Court of Appeal, in Hall & Co Ltd v Shoreham-by-Sea Urban District Council (Hall & Co),[92] where he stated:
But I do not think that the words used by a local authority in imposing [planning] conditions are to be scrutinised in the same way as the words used by a parliamentary draftsman. It seems to me that conditions imposed by a local authority, like by-laws, should be benevolently construed …
[91] City of Swan v Investments (WA) Pty Ltd [2011] WASC 17; (2011) 181 LGERA 228 [18].
[92] Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 All ER 1; [1964] 1 WLR 240, 245.
Wilmer LJ's analysis in Hall & Co has also been referred to with approval by other courts and tribunals, including the Supreme Court of Victoria,[93] the Victorian Civil and Administrative Tribunal,[94] the New South Wales Land & Environment Court[95] and the Tribunal.[96]
[93] Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333, 351-352 (Pape J) (Weigall).
[94] Vestey v Warrnambool City Council [2008] VCAT 963; (2008) 160 LGERA 204 [54] (Bell P).
[95] Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51, 56 (Holland J) (Australian Iron & Steel).
[96] Castle, [28].
Closely allied with the principle that development approvals are not to be treated as the work of Parliamentary counsel, is the notion that it is 'not always appropriate to adopt an over-technical approach to their construction'. Again, while being a principle that has been widely applied across multiple jurisdictions,[97] it was not endorsed in Sunland.
[97] Investments (WA) [18]; Weigall, 351, Australian Iron & Steel, 56.
As I have explained, Sunland was a dispute largely directed to the question of whether a development approval should be construed, as it was by the New South Wales Court of Appeal in Westfield Management, as if it were akin to a contractual arrangement.
However, on that point, in this State, development approvals have never been so interpreted. As I set out above,[98] and consistent with the decision of Spigelman CJ in Winn, development approvals in this jurisdiction have long been regarded, not as the product of a contractual negotiation or bargaining process, but rather as a unilateral step taken by the planning authority, presented in a formal manner, intended to endure according to its terms, and which attaches to the land.[99]
[98] Refer [65] above.
[99] See for example, Forrest [34]; OMSB [113]; Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59; (2019) 97 SR (WA) 270 [294]; Moles and City of Armadale [2021] WASAT 140 [478].
The High Court's reasons in Perpetual Trustee, and later in Sunland, both reference the principles arising in King Gee Clothing and Cann's Pty Ltd as being applicable to the construction of a development approval.
King Gee Clothing and Cann's Pty Ltd both concerned the validity of Price Regulation Orders made pursuant to regulations,[100] which enabled the maximum price of declared goods (in Cann's Pty Ltd, 'outerwear for women and girls') to be 'fixed'. For present purposes, there seems to be little room for argument that a by-law made pursuant to regulations is a written law that ought to be interpreted accordingly.
[100] National Security (Prices) Regulations (Cth), reg 23. The regulations had effect as Statutory Rules 1940, No 176; 1944; No 113, made pursuant to the National Security Act 1939 (Cth).
On the other hand, development approvals are issued by planning authorities, namely either the WAPC, Development Assessment Panels[101] or local governments. Their terms are settled, in large part, by town planners without the assistance of legal advice. Unlike a by-law or a Price Regulation Order, the terms of such development approvals are not standard nor are they of general application.
[101] Established pursuant to PD Act, Pt 11A.
On the contrary, development approvals are bespoke, permissive in nature and intended to regulate both the built form, and consequent activities, on an ongoing basis. Unlike a by-law, a development approval is not a static instrument.
Indeed, part of the reason why a pragmatic approach has been taken to the construction of development approvals is, for example, that what may strictly be regarded as ambulatory conditions are often imposed to ensure effective environmental management practices can be adopted and able to, if needed, evolve over time. Accordingly, courts, including the Supreme Court, have long recognised that approval conditions ought not prohibit some ongoing flexibility nor third-party supervision of a development, or a phase thereof.[102]
[102] South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160 [52] (Chaney J) (South of Perth Yacht Club); Winn [17] - [18]; Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 [117] (Mason P, Sheller JA agreeing); Scott v Wollongong City Council [1992] NSWCA 227; (1992) 75 LGRA 112, 118 (Samuels JA); Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 215 FCR 301 [168], [169] and [179] (Gilmour, Foster and Barker JJ).
Only where the effect of an approval condition is such that it would significantly alter the development or leave open the possibility that the development carried out will be significantly different from that applied for, will the line of invalidity be crossed. That is so because, in such instances, the reality is that the development approval does not operate as a consent to the development that was applied for.[103]
[103] South of Perth Yacht Club [52]; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 [28] (Basten JA, Handley JA and Hunt AJA agreeing); Mison v Randwick Municipal Council (1991) 23 NSWLR 734; (1991) 73 LGRA 349, 352 (Priestley JA, Clarke and Meagher JJA agreeing); Glowpace Pty Ltd v South Sydney City Council [2000] NSWLEC 220; (2000) 111 LGERA 84 [20] (Pearlman J); Kriticos vParamatta City Council (1971) 21 LGRA 404, 408 (Asprey JA, Holmes and Moffitt JJA agreeing).
The enduring nature of a development approval can also be contrasted with works approvals and licences for prescribed premises under the EP Act, which are generally of limited duration, historically between one and five years.[104]
[104] EP Act, s 63; >
However, while the parallels between a by-law and the terms of a development approval may not be immediately apparent, it is important to consider the key principles that derive from King Gee Clothing and Cann's Pty Ltd in terms of the construction of written instruments.
In Cann's Pty Ltd Dixon J stated:[105]
The interpretation of all written documents is liable to be attended with difficulty, and it is not my opinion that doubts and misgivings as to what the instrument intends, however heavily they may weigh upon a court of construction, authorize the conclusion that an order made under reg 23 is ultra vires or otherwise void. If in some respects its meaning is unascertainable, then, no doubt, it fails to that extent to prescribe effectively rights or liabilities, but that is because no particular act or thing can be brought within the scope of what is expressed unintelligibly. But to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise ... the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document[.]
[105] Cann's Pty Limited, 227 - 228.
In my view, there is nothing in Dixon J's analysis that should be regarded as a departure from, or offensive to, the principles that would ordinarily apply to the construction of a development approval.
The point being, perhaps Sunland merely highlights, and reiterates, that the construction of development approvals requires, and has always required, their meaning to be determined objectively. Viewed in that way, it is hard to argue against a proposition that acknowledges that the surest method by which to determine the objective meaning of a development approval, is by the application of the established principles of construction. That is especially so given their enduring quality.[106]
[106] Auburn Municpial Council v Szabo (1971) 67 LGRA 427, 433 - 434 (Hope J); Tipfast Pty Ltd v South Sydney City Council [2002] NSWLEC 85; (2002) 120 LGERA 292 [14] (Pain J).
And, it must be said, while development approvals may be the work of town planners, they are also instruments that carry significant consequences and are intended to have legal effect. It is trite to observe that the legal consequences that flow from a development approval are so important that much care needs to be taken in the drafting of the terms by which they will operate.[107] Non-compliance with a planning scheme, a development approval, or a condition thereof, is an offence under the PD Act.[108] Significant penalties may be, and in fact are, imposed.[109]
[107] Ryde MC, 323-324; Tipfast [13].
[108] PD Act, s 218.
[109] PD Act, s 223; see for example Oztran Aust Pty Ltd v Town of Port Hedland [2017] WASC 28; (2017) 220 LGERA 278 [94] - [111] (Banks-Smith J) and the cases discussion therein.
Indeed, this proceeding, which arises from an allegation that the Applicant has undertaken unauthorised 'works' on the Tuart Tree, which may constitute an offence under the PD Act, is a case in point.
As I have explained, Musikanth J has, in Forrest, purportedly at least,[110] endorsed Stewart J's analysis in Sunland, the implications of which are that development approvals in this State are to be construed on the basis that they written laws.
[110] I say 'purportedly' because while his Honour does cite Sunland as authority for the principle that a development approval is to be construed as if it is a written law, he does so by reference to the majority reasons of Kiefel CJ, Keane and Gleeson JJ. However, the plurality did not discuss, in any detail, the principles that apply to the construction of development approvals. The relevant paragraph cited by his Honour, being [58], forms part of Stewart J's reasons for decision.
Assuming that to be the case, whether that reality requires any realignment of the principles which are applied, on a daily basis, by developers, landowners, homeowners, businesses, community groups, charitable organisations and planning authorities alike, to the interpretation of development approvals in this jurisdiction, I have two things to say.
The first is that, until such time as the superior courts in this State have occasion to directly visit upon this issue, there will be a degree of uncertainty as to the implications, if any, arising from Sunland.
The second is that, in my view, leaving to one side the contra proferentem principle endorsed in decisions such as Snowdale and Reid, I am not at all certain that Sunland, in real and practical terms, represents anything of a material departure from the status quo.
In the wake of the High Court's refusal to grant special leave in Perpetual Trustee, Tobias JA, in Baulkham Hills stated that:[111]
The references [in the High Court's reasons to refuse special leave in Perpetual Trustee] of Dixon J in [King Gee Clothing and Cann's Pty Ltd] make it clear that circumstances of uncertainty of expression are to play no part in construing a condition of development consent and do not affect the validity thereof. The ordinary rules of construction and the principles of interpretation are to apply as with any other document or statutory instrument.
[111] BaulkhamHills [99].
Beyond rejecting the argument that uncertainty in a development approval, of itself, spells legal invalidity, Sunland simply emphasises that the surest method by which to determine the meaning of development approvals is by the application of the ordinary canons of construction.
For the reasons set out below, I do not regard that as a novel, nor radical, proposition in this State.
In Aliraja v Commissioner of Titles,[112] Quinlan CJ recently observed that (citation omitted):
The principles of statutory construction are well settled. Statutory construction involves the attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.
[112] Aliraja v Susan Dukes, Commissioner of Titles [2025] WASCA 103 [23].
In my view, the orthodox canons of construction are not inconsistent with the principles of interpretation for development approvals that have evolved, over many decades now, in this State. Regardless of what label is applied, the approach in this State has long been directed toward an objective interpretation of the relevant terms, focusing on their ordinary and natural, or, where applicable, technical, meaning, in a manner which recognises both purpose and context.
As to the need to construe a development approval in a manner that would promote its legislative purpose,[113] such approvals are granted under a local planning scheme, which has been made pursuant to Pt 5 of the PD Act. That is to say, the relevant legislative purpose is a town planning purpose.[114] One of the longstanding aims of local planning schemes, including LPS 1, is to 'control and guide development'. That legislative intent speaks to the need to construe development approvals pragmatically, practically and sensibly.
[113] Optus Mobile Pty Ltd v City of Swan [2017] WASC 251; (2017) 227 LGERA 368 [37] (Banks-Smith J).
[114] Landcorp and City of Stirling [2011] WASAT 202 [44]; Agricorp Australia Pty Ltd t/as VMS Contractors and Shire of West Arthur [2025] WASAT 40 [121].
Accordingly, Part C of the R Codes, read as part of LPS 1, directed the Town to consider the proposed landscaping arrangements, including the question of whether or not any trees on the Land ought to be preserved in its determination of the proposed development.
Landscaping is, quite properly, a fundamental consideration in the exercise of planning discretion. Proposed residential developments have been refused on account of what were found to be inadequate landscaping arrangements. For example, in Kemstone Investments Pty Ltd and City of Joondalup,[134] I dismissed a review for a residential development on the basis that the proposed landscaping arrangements were manifestly inadequate. I found there that the proposed landscaping, in practical terms, had been treated as a 'design afterthought,' and that such an approach to planning and landscape design was no longer acceptable:
In short, planning and design experts need to do better. The day has long passed where landscaping concepts, in the context of medium and high density proposals under the R Codes, can be dealt with as a design afterthought.
[134] Kemstone Investments Pty Ltd and City of Joondalup [2020] WASAT 115 [125]; see also Bradshaw and City of Joondalup [2020] WASAT 156.
The second question under cl 67(2)(p), which arises by the words, 'whether any trees or other vegetation on the land should be preserved', is not prospective in nature, but is instead protective in its focus. It directs attention to the existing state of the land on which the development is proposed and requires an assessment as to whether there are any trees, or other vegetation, which ought to be preserved in the development control process.
It follows that, in this case, cl 67(2)(p) of the deemed provisions required the Town to have due regard as to whether there were any trees on the Land that ought to be preserved in the development control process. That necessitated the Town, or at least should have, to make an evaluative judgment as to whether there are any trees or other vegetation that are present on the Land that ought to be protected.
The significance of trees and/or vegetation can arise from the contribution that they make to the character and amenity of the locality and its sense of place. However, they may also be significant, and warrant preservation, other than based on anthropocentric values but instead, having regard to, for example, environmental or ecological factors. In the context of this case, that evaluative exercise required the Town, in undertaking its planning assessment, to also contemplate the broader objectives of LPS 1, the residential zone and the Strategy.
If the Town considered that the Tuart Tree was significant and warranted preservation, it was authorised, by reason of cl 73(b) of the deemed provisions, to specify in the Approval that the Tuart Tree was to remain.
Accordingly, I am somewhat surprised to hear the Town's explanation, as set out in the evidence of Mr Laming, as to why it did not consider the fate of the Tuart Tree in its planning assessment. I can see no logical planning explanation as to why, at the time the Approval was granted, the preservation of trees on private land was not regarded by the Town as a relevant planning consideration.
Issue 1: the 'works' to fell the Tuart Tree constituted 'development'
The question of whether the felling of the Tuart Tree was 'development' that required approval is to be resolved by the application of the orthodox principles of planning law.
Based on my understanding of those principles and leaving to one side the R Codes and cl 67(2)(p) of the deemed provisions, in my view, the felling of a tree may, in some circumstances, fall comfortably within the definition of 'development' in the PD Act. That is so because treefelling works may well constitute 'the carrying out on the land of any excavation or other works' for the purposes of the PD Act. Certainly, as a matter of principle, if the excavation of land has town planning consequences so as to be regarded as 'development' so too does, in some instances, the removal of trees and vegetation. Of course, that is not a new, nor novel, proposition.
Indeed, the PD Act has long recognised that the clearing of vegetation, including trees, is, or at least can be, 'development'. Noting that the definition of 'development' does not expressly include 'subdivision',[135] s 157(1) of the PD Act operates to ensure the development 'works' necessary to carry out a subdivision approval granted by the WAPC, are taken to have been approved by the responsible authority[136] for the purposes of the relevant planning scheme.
[135] See for example, Landpark and WAPC [2023] WASAT 130 [23]; cf Taylor and WAPC [2023] WASAT 16 [150] - [161].
[136] PD Act, s 4(1).
Such subdivision works can, of course, include the removal of vegetation. This is reinforced by the EP Act which, in Sch 6 sets out the circumstances in the clearing[137] of vegetation which does not require a clearing permit under Div 2 of Pt 5. Item 9 of Sch 6 provides that no clearing permit is required for 'clearing for the purpose of any development' that is deemed by s 157 of the PD Act to have been approved.
[137] Defined in s 51A of the EP Act to include the killing, destruction or removal of 'native vegetation'.
Perhaps more significantly, item 2(b) in Sch 6 to the EP Act also provides that a clearing permit is not required for the removal of vegetation undertaken in the implementation of, relevantly, a development approval.
As I have earlier set out,[138] cl 61(1) of the deemed provisions sets out a detailed suite of works that comprise development, but which do not require development approval. Two things can be said about that.
[138] Refer [38] above.
The first is that the deemed provisions plainly recognise that what might be regarded as relatively minor structures, for example, solar panels, flag poles and cubby houses can in fact be 'development', even in a suburban context, but which, if consistent with the conditions specified in Column 2 to the Table in cl 61(1), do not need development approval.
The second is that, despite providing an extensive set of exemptions for works from the need to obtain development approval, no attempt has been made by the legislature to provide any kind of exemption for the felling of trees, and the clearing of vegetation, from requiring development approval under a local planning scheme. Indeed, it might be said that such an exemption would hardly align with the statutory purpose of the PD Act, which is, relevantly, to provide a sustainable land use planning system.[139]
[139] PD Act, s 3(1)(c).
The fact that the clearing of trees and vegetation can be 'development' is also well-established in case law.
In Palos Verdes Estates Pty Ltd v Carbon,[140] Malcolm CJ observed that while bulldozing a 7 kilometre long by ~5-metre-wide stretch of vegetation on the Nullaki Peninsula near Albany was not 'pollution' for the purposes of the EP Act, the physical change to the environment was 'excavation or other works on any land' so as to constitute 'development' within the meaning of the TPD Act.
[140] Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223.
Likewise, in Hutchings and Shire of Augusta-Margaret River,[141] a proposal to remove 97 mature peppermint trees (Agonis flexuosa) as part of a farming operation was 'development' requiring approval. I have already referred to Ivo Nominees which involved the clearing of 11 hectares of native vegetation on a farming property.
[141] Hutchings and Shire of Augusta-Margaret River [2023] WASAT 96.
The decision in Lovegrove Investments Pty Ltd and Shire of Waroona,[142] involved what was alleged to be the unauthorised clearing of 1 hectare of native vegetation on rural land. Carbone Bros Pty Ltd and Shire of Harvey,[143] involved a proposal to vary a development approval to authorise the removal of six Tuart trees to facilitate future limestone extraction.
The Tuart Tree: relevant findings
[142] Lovegrove Investments Pty Ltd and Shire of Waroona [2023] WASAT 99; affirmed on appeal Lovegrove Investments Pty Ltd and Shire of Waroona [2024] WASC 321 (Glancy J).
[143] Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150.
I turn now to consider the Tuart Tree. As I have explained, the question of whether the felling of a tree constitutes 'works', and is thus 'development', is always context dependent. There can be no hard and fast rules. It is also the case that in a residential context such as this, de minimis arises for consideration.
I am satisfied that, in the ordinary course, Parliament did not intend the PD Act, and the tentacles of planning law, to intrude too far into the activities and works undertaken in one's backyard. That is especially so when there are no tangible town planning impacts, such as adverse effects on neighbours or the amenity of the locality, arising from such works. Accordingly, the felling of a tree in a suburban backyard will not ordinarily raise any issues of town planning consequence, such that development approval is required.
But there are some exceptions to that general position.
It is beyond argument, and I find, that the Tuart Tree was, and remains, a significant tree. It is, plainly, a large, mature tree standing more than 12 metres in height, with, until recently, a thick trunk and a broad canopy, which spread well beyond the boundaries of the Land. It was, and remains, a very prominent tree in its context, that is highly visible from the street, and the immediate locality generally, even taking account of the fact there once was, and will again be, a dwelling on the Land. So much is evident from the photographs that were filed by the parties.
It is also the case that Tuart trees are endemic to the south-west of Western Australia, including the Swan Coastal Plain. Furthermore, Tuart Woodlands and Forests of the Swan Coastal Plain have, from 4 July 2019, been declared to be 'critically endangered' for the purposes of s 181 of the Environment Protection and Biodiversity and Conservation Act 1999 (Cth).[144] Tuart trees are identified as the primary defining feature of this ecological community.[145] It has also long been recognised that the environmental consequences of a proposal may be a relevant consideration in the exercise of planning discretion.[146]
[144] page 9.
[146] Squarcini v State Planning Commission (unreported SCt of WA, (Scott J), Library No 960200, 17 April 1996; see also deemed provisions, cl 67(2)(o).
In my view, the relevant planning context only heightens the significance of the Tuart Tree. The Land is zoned for residential purposes in a suburb which was conceived as, delivered and which remains, an enduring example of a garden suburb. The landscaping on private land, I find, contributes to the 'garden feel' of these localities and reinforces their amenity and sense of place. The notion of green open spaces, landscaping and the presence of substantial trees (on both public and private land) has long been a discernibly important aspect of the planning aspirations for the locality. So much is made clear by the Strategy, to which I have referred.
The significance of trees is also implicitly recognised by reason of cl 67(2)(p) of the deemed provisions, which applies to all applications for development approval under local planning schemes in this State, including LPS 1.
More generally, leaving to one side the fact that the Land sits within a longstanding garden suburb, urban trees are now recognised as being an important community asset. On 29 May 2025, the WAPC released its most recent tree canopy data for Perth and Peel.[147] In doing so, the WAPC explains that:
The leafy cover provided by tree canopy (trees 3 metres or taller) provides significant community, environmental and economic benefits. This valuable community asset, collectively known as the 'urban forest', includes all trees across public and private land.
[147] >
Along with the matters in cl 67(2) that I have already addressed, the exercise of development control required 'due regard' to be given to 'the amenity of the area' including:
(i)environmental impacts of the development;
(ii)the character of the locality;[148]
[148] Deemed provisions, cl 67(2)(n).
Under the deemed provisions, consideration of 'amenity' directs attention to 'all those factors which combine to form the character of an area and include the present and likely future amenity'.[149]
[149] Deemed provisions, cl 1.
The Tuart Tree was, I find, a significant aspect of the amenity of this particular locality, arising from:
(a)its physical size, height and presence in the streetscape and the locality generally; together with
(b)its location in City Beach, a suburb which was planned, and is intended to remain, a garden suburb, where the presence of landscaping and trees are an important aspect of the residential amenity; and
(c)to a lesser extent, its ecological significance as a mature specimen of an endemic species that is in environmental decline.
Applying the orthodox principles of planning law and taking account of the planning context of the Land, I am satisfied, and I find, that the removal of the Tuart Tree, or more particularly, the works to remove the Tuart Tree, constituted 'development' which required approval under LPS 1.
That is because the 'works' to remove the Tuart Tree would result in a permanent alteration to the Land to such an extent that it would have consequential town planning impacts on the relevant locality, including, but not limited to, visual amenity. The degree of alteration, in the circumstances of this case, cannot, I find, be regarded as de minimis.
Consistent with the evidence of Mr Mrdja, I find that the Tuart Tree was a substantial tree, that was significant in its context, as and when the Town undertook its planning assessment before it granted the Approval.
The point being that the works to remove the Tuart Tree were 'works' that constituted 'development' prior to the application for development approval being made for the Land, and the Approval being granted. The fact that the Town, like many other local governments in this State, have chosen to, in effect, look the other way on such works, does not alter the meaning, nor application, of what are orthodox principles of planning law.
It is plain, from the evidence of Mr Laming, that the Town's planning assessment was blind to, or simply ignored, its obligation under cl 67(2)(p) of the deemed provisions to evaluate whether the Tuart Tree ought to be preserved. The 'proposed site and ground floor plan' identified the proposed dwelling, swimming pool and open space areas (including the new tree). The Tuart Tree was not shown on this 'proposed plan' as remaining on the Land. Accordingly, I find the Town was squarely on notice that a 'new' tree was proposed to be planted and, as a result, the existing Tuart Tree would need to be removed.
The Town's adoption of LPP 3.25 did no more than belatedly recognise what really should have been acknowledged long ago. That is, significant trees are a community asset, the removal of which may have town planning consequences.
As the WAPC has identified, trees can be significant community assets, regardless of whether they are located on public or private land. Indeed, as the Better Urban Forest Planning Guidelines[150] outline, 85% of Perth's tree canopy is located on private land.[151] If the State Government's target of increasing Perth and Peel's urban tree canopy from 16% in 2020, to 40% by 2040, is to be achieved, the 'battle' to maintain and improve urban tree canopy is one that must, primarily, be won on private land. The simple fact is that those who are charged with administering planning laws need to be much more cognisant of the community value that attaches to landscape and trees.
[150] Published jointly by the WAPC, DPLH and WALGA in 2018.
[151] >
With some restraint, I would characterise it as surprising and unfortunate that a planning authority which, since 1994, has been responsible for the administration of planning laws in longstanding 'garden suburbs' such as City Beach and Floreat, was not more cognisant of the town planning significance of substantial mature trees in preserving amenity, protecting character and in maintaining a sense of place.
To reiterate, in the circumstances of this case, LPP 3.25 did not make 'tree damaging activities' works that constituted development. The works necessary to remove the Tuart Tree were, based on the orthodox principles of planning law, 'development' that required approval long before LPP 3.25 was adopted.
That is not to say, however, that LPP 3.25 is a policy without merit. To the contrary, the fact that the Town has now taken the step, for the purposes of administering its planning framework, to provide some level of guidance as to how it is going to approach the question as to the trees it will regard as significant, is no doubt appropriate. However, as I have stated, in the circumstances of this case, LPP 3.25 did not make the works to fell the Tuart Tree 'development'.
Issue 2: the Approval authorised the removal of the Tuart Tree
I turn, finally, to consider the Approval and whether it, by its terms, authorises the removal of the Tuart Tree.
The Approval: procedural history and its terms
The Applicant lodged a set of plans, stamped 12 June 2024, with the Town. Those plans included an 'existing site plan' showing the Tuart Tree (and specified its height of 12 metres) towards the rear of the Land. The 'proposed site and ground floor plan' showed a lawn area in the vicinity of the Tuart Tree. None of these plans expressly specified that the Tuart Tree was to be removed.
Amended plans were then lodged with the Town on 8 October 2024. It is these plans that are incorporated into the Approval and thus are the Approved Plans.
The Approval is for a '[t]wo storey single house with undercroft garage'.
The Approval, relevantly, includes the following conditions:
1.The development must be strictly in accordance with the details of the application as approved herein and the approved plans.
…
4.Within six months of occupation of the development, the landscaping area within the 7.5 metre street setback area (as shown on the approved plans) must be installed and reticulated and must include at least one advanced growth tree, being a minimum 45L bag size or 2m in height and diameter, within the primary street setback area and thereafter maintained for the life of the development to the Town's satisfaction.
Why the Approval authorised felling of the Tuart Tree
To determine whether the Approval authorised the removal of the Tuart Tree, I find it is unnecessary for me to embark on an exhaustive analysis and application of the principles which govern the construction of development approvals.
That is because those principles, which I have discussed at length in these reasons, are largely directed to circumstances where the terms or effect of a development approval may be said to be vague, unclear or uncertain.
However, in the context of the Approval, there is no need for me to resolve any ambiguity or uncertainty. In my view, the terms and effect of the Approval are clear and unequivocal.
The Approved Plans, referred to, and incorporated by, condition 1 of the Approval, include:
(a)an existing site plan which identified the presence of a 12metretall Tuart Tree; and
(b)the 'proposed site and ground floor plan', which identifies two 'new' trees. One in the front setback area and another in the rear, in almost precisely the same location as the Tuart Tree.
I am satisfied, and I find, that the Approval authorised the felling and removal of the Tuart Tree. That is because:
(a)at all relevant times, the Tuart Tree was an endemic, mature and very substantial, tree. It was visible from the public realm and was an important aspect of the streetscape and amenity of the immediate locality. The loss of the Tuart Tree would bring about a significant, and permanent, change to the amenity of the locality which would have (in my view, adverse) town planning consequences. As I have already addressed, the applicable planning framework did not provide an exemption for such works and the removal of the Tuart Tree was not de minimis. Accordingly, the 'works' to fell the Tuart Tree constituted 'development' under LPS 1;
(b)the Approved Plans, read together, show the Tuart Tree as an existing feature on the Land (on the existing site plan) which is then to be replaced by a 'new' tree (as shown on the 'proposed site and ground floor plan'). In oral argument, the Town conceded, properly in my view, that the Tuart Tree and the approved new tree could not co-exist;
(c)Condition 1 of the Approval, by its terms:
(i)expressly incorporates the Approved Plans (which are stamped 'approved' and dated 8 October 2024); and
(ii)requires 'all development' to be undertaken strictly in accordance with the 'approved plans';[152]
[152] ts 47 - 48, 20 May 2025.
(d)the Approved Plans, construed objectively, sought development approval for inter alia, the removal of the Tuart Tree and to plant the 'new' tree as an aspect of the Approval;
(e)by reason of cl 73(a) of the deemed provisions, the scope of the Approval is to be determined by reference to, 'the development for which [approval was sought]';
(f)the Town could have specified within the terms of the Approval, or on the Approved Plans, that the removal of the Tuart Tree was not approved. However, there is nothing excepted or specified in the Approval, including the Approved Plans, which limits or restricts the scope of the development that is taken to be authorised;
(g)while I accept that the Approved Plans should have, but did not, expressly state that the Tuart Tree was to be felled as part of the Approval, that omission does not save the Respondent. The Town was nevertheless obliged, in the administration of LPS 1, to undertake its own planning assessment of the proposed development in the context of the Land and, in doing so, to consider whether the Tuart Tree warranted preservation (as it was directed to give due regard to under cl 67(2)(p) of the deemed provisions). Even a cursory review of the 'proposed site and ground floor plan' would have made it apparent that the Tuart Tree was proposed to be replaced by a 'new' tree;
(h)LPP 3.25 does not purport to, nor could it, operate with retrospective effect so as to alter the manner in which the Approval is to be interpreted. The Approval applies according to its terms, and not based on the shifting sands of refinements to the Town's planning framework that were made after it was granted;
(i)nevertheless, I pause to observe here that the fact that the Town felt it necessary to advise the Applicant on 18 December 2024 of its recent adoption of LPP 3.25, very much suggests that the Town was aware that the Tuart Tree was a significant tree and that the Approval, at the very least, contemplated its removal;
(j)the fact that Condition 4 of the Approval required the Applicant to plant and maintain the 'new' tree shown in the front street setback area does not alter the outcome. The planting of a new tree in the front setback was proposed in the Approved Plans, as was the removal of the Tuart Tree. Condition 4 flows from the need to landscape the front setback area consistent with the Town's policy framework. However, the absence of a corresponding condition relating to the maintenance of the new tree in the rear, does not mean the Approval did not, read and interpreted objectively, authorise the removal of the Tuart Tree;
(k)by failing to specify in the Approval that the Tuart Tree was to be preserved in circumstances where it was expressly empowered to give that matter 'due regard', the Approval must be construed on the basis that the Town did not consider that the Land contained any trees or vegetation that warranted protection;
(l)by the terms of the Approval, the Applicant is entitled to implement the Approved Plans without exception nor restriction, including the removal of the Tuart Tree;
(m)whatever the reason the Town purports to offer as to why it did not consider the fate of the Tuart Tree at the time it undertook its planning assessment does not alter how the Approval is to be objectively construed; and
(n)it is impermissible, at least in this case, for the Town to seek to retrospectively assert the significance of the Tuart Tree by the device of LPP 3.25. In issuing the Approval in the terms that it did, the Town, in effect, let the genie escape from its bottle.
Conclusion
This Review does not involve an evaluation of whether I consider the Applicant should be entitled to fell the Tuart Tree. That question was before the Town; it is not before me. The jurisdiction I am exercising arises from the Direction and my only task is to interpret the terms of the Approval.
For the reasons I have explained, the conclusion that I am compelled to reach is that the works necessary to remove the Tuart Tree were authorised by the Approval. That is sufficient to dispose of this proceeding. The Direction must be set aside.
Looking beyond the horizon of this proceeding, consideration of applications for development approval for, or that necessitate, the removal of a significant tree, will no doubt require a myriad of factors to be weighed and balanced, including, whether the tree in question can realistically be preserved, while taking account of the entitlement of landowners to the reasonable use and enjoyment of what is, after all, their property.
However, if there is now a desire or expectation for landowners to maintain significant trees in the development control process, then appropriate and reasonable design concessions may need to be agreed so as to incentivise their preservation. If positive strides in the battle to maintain and improve tree canopy on private land in residential areas are to be taken, local governments, and the broader community, should brace for that reality.
Finally, it is undoubtedly the case that, at some level, the loss of the Tuart Tree is a most deplorable result for many in the local community. The simple fact is that it will take decades for the 'new' tree to make anything near the contribution to the sense of place and amenity of the locality that the Tuart Tree did. The fact that, on the evidence before me, the Town authorised its removal without even pausing to give that issue any attention, in circumstances where it was expressly authorised to, will no doubt only compound this loss. However, that failure is not one that can, nor should, be held against the Applicant.
The parties should confer and agree orders that give effect to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
28 JULY 2025
Cases Citing This Decision0
Cases Cited61
Statutory Material Cited21
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