The Scheme contained provisions, in particular, cl 7.7.2, cl 7.7.3 and cl 7.7.4, that allowed for specified provisions of an outline development plan, or detailed area plan to have effect as if they were incorporated within the Scheme. In this way, the Scheme allowed for, relevantly to this matter, zoning and residential development of land to be contained within an outline development plan or detailed area plan. However, the Tribunal determined that cl 7.7.2, cl 7.7.3 and cl 7.7.4 of the Scheme were inconsistent with cl 27 of the deemed provisions incorporated into the Scheme by the Regulations and the Planning and Development Act 2005 (WA). As such these clauses of the Scheme were determined to be of no effect. Consequently, the zoning of the site remained 'Residential Development' and did not change to 'Local Centre' as specified in the relevant outline development plan.

Puma Energy Australia and City of Cockburn [2016] WASAT 36

Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134

1 On 29 January 2015, Amherst Developments Pty Ltd (applicant) lodged an application with the respondent seeking development approval to construct 27 multiple dwellings on Lot 520 (site) and a restaurant and an office complex on Lot 522, both on Crow Lane, Southern River. The application was refused by the respondent on 13 October 2015. On 16 November 2015, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision. On 12 January 2016, the proposed development application was amended by the removal of the restaurant and office aspects of the proposal.

2 The application was listed for a final hearing to commence on 26 July 2016. However, at a directions hearing held on 21 July 2016, the Tribunal raised with the parties' representatives that there may be a question in relation to the zoning of the site that the parties had not identified in the documents that had been lodged in preparation for the hearing. At the request of the parties, the listed final hearing dates were vacated, and the matter was adjourned to another directions hearing on 5 August 2016.

3 At the directions hearing on 5 August 2016, the Tribunal ordered that that a preliminary issue was to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). By order dated 2 September 2016, the Tribunal identified that there were the following two preliminary issues:

1. what effect, if any, do the deemed provisions concerning structure plans contained in the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) have on the operation of cl 7.7 of the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme); and
2. having regard to the answer to (a) above, what is the current zoning of the site under TPS 6?

4 The respondent's submissions on the preliminary issue were received by the Tribunal on 14 September 2016. The applicant's submissions were received on 14 October 2016. What follows are the Tribunals reasons for decision and its decision in relation to those preliminary issues.

5 On the relevant scheme map of TPS 6 the site is zoned 'Residential Development'. Land within the Residential Development zone is required to have an outline development plan in place before subdivision or the issuing of any planning approval for development or use of that land: cl 7.2 of TPS 6.

6 The Southern River Outline Development Plan, Precinct 1F (Southern River ­ 1F ODP) was adopted on 19 July 2012. In the Southern River ­ 1F ODP the site is identified as 'Local Centre'. Under TPS 6, Local Centre is one of the identified zones or classifications of land: cl 4.2 of TPS 6.

7 Pursuant to cl 7.7.2 of TPS 6, where an outline development plan imposes a classification on the land included in it by reference to reserves, zones, or residential design codes, until it is replaced by a subsequent amendment to the scheme or a new scheme imposing such classifications:

(a) the provisions of the Outline Development Plan apply to the land within the Outline Development Plan area as if its provisions were incorporated into the Scheme and it is binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and

(b) provisions in the Scheme applicable to land in those classifications under the Scheme are to apply to the Outline Development Plan area.

8 Clause 7.7.3 and cl 7.7.4 of TPS 6 relevantly provide:

7.7.3 Without limiting the generality of clause 7.7.2, under an Outline Development Plan:

(a) in the areas designated as zones, the permissibility of uses is to be the same as set out in the Zoning Table as if those areas were zones under the Scheme having the same designation;

(b) the standards and requirements applicable to the zones and R-Codings under the Scheme apply to the areas having corresponding designations under the Outline Development Plan;

(c) the development control procedures including (without limitation) the procedures for the approval of uses and developments under the Scheme are to apply as if the land was correspondingly zoned or reserved under the Scheme;

(d) any other provision, standard or requirement in the Outline Development Plan is to be given the same force and effect as if it were a provision, standard or requirement of the Scheme.

7.7.4 An Outline Development Plan may distinguish between the provisions, requirements or standards which are intended to have effect as if included in the Scheme, and any provisions, requirements, or standards which are only for guidance or such other purposes as stipulated in the Outline Development Plan.

9 Therefore, based on the identification in the Southern River ­ 1F ODP of the site as within a Local Centre zone, the parties asserted in their respective documents lodged with the Tribunal in preparation for the final hearing of this matter, that the site is zoned 'Local Centre' and the provisions within the Scheme in relation to that zone are applicable to this application.

10 Since the respondent's determination of the application, the LPS Regulations came into effect. The LPS Regulations contain, amongst other things, a number of deemed provisions that are incorporated into TPS 6 pursuant to s 257B of the PD Act (deemed provisions). A number of the deemed provisions relate to the making and operation of structure plans. Pursuant to s 257B of the PD Act, to the extent that any of the provisions of TPS 6 (existing provisions) are inconsistent with the deemed provisions, the existing provisions are of no effect.

11 Even though the application for planning approval the subject of these proceedings was made before the deemed provisions came into effect, the effect of reg 79 and reg 81 of the LPS Regulations is that TPS 6, including the deemed provisions, apply and the Tribunal is required to determine the review having due regard to the provisions of TPS 6 as modified to include the deemed provisions: see Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [48] ­ [51]. Pursuant to cl 79 of the LPS Regulations, following the commencement of the LPS Regulations, the Southern River ­ 1F ODP continues in force as if it were a structure plan made under the LPS Regulations.

12 It is necessary therefore, to determine whether cl 7.7 of TPS 6 is inconsistent with any of the deemed provisions. In relation to what is meant by 'inconsistent', the Tribunal made the following comments in Puma Energy Australia and City of Cockburn [2016] WASAT 36 at [40] ­ [44]:

The words 'inconsistent' and 'inconsistency' in s 257B(3) of the PD Act bear their ordinary meanings. ...

...

In Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 (Castle Constructions), an appeal before the New South Wales Court of Appeal turned on whether one provision of a local planning scheme ... was inconsistent with another provision of the same local planning scheme ... . If [so], then, [one of the clauses] 'prevail[ed] over [the other], to the extent of any inconsistency ...'. Tobias JA (with whom Bell J agreed at [145]) delivered the judgment of the majority, holding [there was an inconsistency].

At [41] Tobias JA said the following:

It was ultimately common ground that the term 'inconsistency' in cl 28A was to be construed in the manner adopted by Kirby P in Coffs Harbour Environment Centre Inc v Minister for Planning & Anor (1994) 84 LGERA 324 at 331 where he observed that the term 'inconsistency' in s 36 of the [Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)] was to be construed having regard to the ordinary meaning of that word. His Honour therefore rejected an argument that the term ought to be approached in a manner similar to that adopted when considering the operation of s 109 of the Constitution. He considered that s 36 concerned, to the extent of any inconsistency, which of at least two laws enacted by or made under the same legislature was to prevail. The resolution of that dispute required only that the word 'inconsistency' be give its ordinary natural meaning without the gloss which had necessarily developed around the meaning of the word in a constitutional setting. The President continued in those terms:

Upon that basis, there will be an inconsistency if, in the provisions of one environmental planning instrument, there is 'want of consistency or congruity'; 'lack of accordance or harmony' or 'incompatibility, contrariety, or opposition' with another environmental planning instrument.

The question in the present case is whether one provision in an instrument made by the Minister as delegated legislation prevails over a different provision in the same instrument. Were it not for the eschewing by Kirby P in Coffs Harbour of the approach based on s 109 of the Constitution to the operation of s 36 of the EPA Act, it would be tempting to adopt the 'covering the field' test as the appellant in its written submissions pressed upon the Court, notwithstanding that it appears to have fallen out of favour in some contexts not presently relevant: cf Sweedman v Transport Accident Commission [2006] HCA 8; (2006) 224 ALR 625 at 636 [48]; [2006] HCA 8 at [48]. Close attention to the particular and complex provisions of [the relevant clause] indicate[s] an appearance of exhaustiveness on the subject ... thereby creating an incompatibility and inconsistency between it and [the other clause]. I do not think that one is departing from the ordinary natural meaning of 'inconsistency' which, as Kirby P points out in Coffs Harbour, involves incongruity as well as incompatibility, by concluding that that incompatibility or incongruity or lack of harmony between the substance of the two provisions results not only from a comparison of the objectives and controls of each but also from the 'appearance of exhaustiveness' on the same subject matter ... .

13 Clause 27(1) of the LPS Regulations provides that:

A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.

14 The respondent submits, in my view correctly, that this provision is inconsistent, in the ordinary meaning of the word, with cl 7.7.2 of TPS 6. Under that clause, the provisions of a structure plan have effect as if they were contained in the Scheme, that is, as if contained in subsidiary legislation. A decision­maker is bound to follow any requirements imposed by subsidiary legislation; it is not something which the decision­maker need have only 'due regard' for.

15 The applicant does not dispute that following commencement of the LPS Regulations, a decision­maker is to have due regard to any relevant structure plan and is not bound by its provisions. However, it submits that this does not mean that cl 7.7.2 of TPS 6 is of no effect. Rather, the applicant submits, cl 7.7.2 of TPS 6 can be read down so as to require the decision­maker to have due regard to the structure plan. It is submitted this means that the decision­maker should apply the provisions of the structure plan unless there is a good planning reason to depart from it. It is not clear how this submission answers the preliminary issues before the Tribunal. The applicant seems to accept in its submissions that the zoning of the site is not changed by the provisions of the Southern River ­ 1F ODP.

16 In any event, the plain language of s 257B(3) of the PD Act is clear:

If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.

17 Clause 7.7.2, cl 7.7.3 and cl 7.7.4 of TPS 6 are entirely directed to the operation, or effect of, the provisions of a structure plan. Nothing else is dealt with in those clauses. These clauses are, in my view, entirely inconsistent with cl 27 of the deemed provisions that were incorporated into the Scheme by the LPS Regulations. Therefore, cl 7.7.2, cl 7.7.3 and cl 7.7.4 of TPS 6 no longer have any effect.

18 Although nothing turns on the matter, for the sake of completeness, I have also considered cl 7.7.1 of TPS 6, which relates to when a structure plan is taken to commence.

19 The deemed provisions do not contain any provision that is inconsistent with identification of the operational commencement of an outline development plan made under TPS 6 prior to the commencement of the LPS Regulations. However, cl 28 of the deemed provisions provides that structure plans have effect for a period of 10 years. For structure plans that were in existence prior to the commencement of the LPS Regulations, cl 28(2) provides that the commencement day from which the 10 year duration of a structure plan is to be calculated, is to be taken to be 19 October 2015. To the extent that cl 7.7.1 of TPS 6 might otherwise have specified the date of commencement of the Southern River ­ 1F ODP for the purposes of determining the duration of that structure plan, the definition in cl 7.7.1 of TPS 6 of that date of commencement is of no effect. Rather, the Southern River ­ 1F ODP will have effect for a period of 10 years commencing on 19 October 2015.

20 As stated above, the relevant scheme map of TPS 6 identifies the site as within the zone 'Residential Development'. Although the Southern River ­ 1F ODP indicates that the site is within the 'Local Centre' zone, this does not alter the zoning of the site under the Scheme. Given that the structure plan cannot have the effect of altering the site's zoning, all it can do is indicate, as a matter of strategic planning, the planned future zoning of the site.

21 Multiple dwellings are a 'D' use under TPS 6 in the Residential Development zone. Clause 4.3.2 of TPS 6 identifies that a 'D' use is one that is not permitted unless the local government has exercised its discretion by granting planning approval.

5.2.2 Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.

5.2.3 The Residential Design Codes density applicable to land within the Scheme area is to be determined by reference to the Residential Design Codes density number superimposed on the particular areas contained within the borders shown on the Scheme Map or where such an area abuts another area having a Residential Planning Code density, as being contained within the area defined by the centre­line of those borders.

23 There is no density number superimposed within the borders of the relevant area of the Scheme map that includes the site.

24 A residential zoned area contained within borders shown on the Scheme map does abut the relevant area that contains the site. That area has a density number of R17.5 superimposed. However, I must admit to having great difficulty with the application of that fact to the words used in the second half of the provision in cl 5.2.3 of TPS 6 so as to work out whether the abutting area of R17.5 density land has any effect on the density applicable to the site. It may be that cl 5.3.3 has the effect that the relevant area that includes the site has no density coding identified by the Scheme map or that it has a R17.5 density. If the R17.5 density applied to the site, any specification of a higher density in the Southern River ­ 1F ODP (or any detailed area plan) could not, without some other scheme provision, allow development of the land to any greater density. Alternatively, if no density was allocated to the site, one could have due regard to the density identified in the Southern River ­ 1F ODP (or any detailed area plan) in determining what density of development might be appropriate on the site.

25 However, as it happens, the site is a corner lot, and there is another specific provision within TPS 6 that potentially affects the development density of the site. Clause 5.3.9 of TPS 6 relevantly provides that:

(ii) For land within the 'Residential' zone or 'Residential Development' zone, in accordance with Clause 7.1, the Council may support development or subdivision to a maximum density of R30 where the lot is located on a corner, complies with the provisions of the R30 density coding, an approved development approval and any related Local Planning Policy.

26 Thus, whether the site is within an area that has no relevant density coding applied to it, or has the R17.5 density code, as a corner lot within the Residential Development zone, development to a maximum density of R30 may be supported pursuant to the provisions of TPS 6. While the decision­maker would have due regard to any indication of density within any relevant structure plan or detailed area plan, those indications could not authorise departure from the maximum density imposed by cl 5.3.9 of TPS 6 unless some other provision within the Scheme allowed for such departure or variation from a Scheme requirement.

27 In the material initially provided to the Tribunal by the parties, the parties relied upon cl 5.8 of TPS 6 to apply an R80 density code to the site. This was on the basis that it was submitted in those documents that the Southern River ­ 1F ODP allocated a Commercial zoning to the site and therefore the proposed development was to be treated as residential development in a Commercial zone.

28 Having regard to the Tribunal's determination above as to the zoning of the site, this proposition can no longer be accepted. The proposed development involves residential development within the Residential Development zone and not within a Commercial zone. The fact that the Southern River ­ 1F ODP and at least one detailed area plan indicate that the strategic planning for the site is that it is to become a Commercial zone (in particular a Local Centre zone) does not alter those facts. Clause 5.8 of TPS 6 has no application to the proposed development.

29 For the reasons indicated above, the Tribunal has determined the preliminary issues as follows:

1. Clause 7.7.2, cl 7.7.3 and cl 7.7.4 of the City of Gosnells Town Planning Scheme No 6 are entirely inconsistent with cl 27 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) and as such, cl 7.7.2, cl 7.7.3 and cl 7.7.4 of the City of Gosnells Town Planning Scheme No 6 are of no effect; and
2. The current zoning of the site under the City of Gosnells Town Planning Scheme No 6 is 'Residential Development'.

1. The proceeding is adjourned to a further directions hearing at 2 pm on 3 February 2017 at 565 Hay Street, Perth, Western Australia in order to program the matter to a final hearing now the preliminary issues have been determined.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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