Court of Appeal (WA)|2018-04-06|Before: Buss P, Murphy JA, Mitchell JA, Miere J

For the reasons which follow, the answer to question 1 is 'no' and the answer to question 2 is 'yes'. It follows that the third question does not arise and the appeal must be dismissed. If it were necessary to answer the third question, the answer to that question would be 'yes'.

Issue 1: jurisdiction of the City to determine the development applications Statutory context

Part 11A of the Planning and Development Act 2005 (WA) (Act) makes provision for DAPs. Under s 171A(2)(a):[5]

(a) providing that, despite any other provision of this Act or a planning instrument, a development application of a class or kind prescribed for the purposes of this paragraph -

(i) must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and

(ii) cannot be determined by a local government or the Commission.

Division 2 of pt 11A provides for the establishment of Local Development Assessment Panels (LDAPs) for a local government district and Joint Development Assessment Panels (JDAPs) for two or more districts.
Under reg 5(c) of the Regulations, subject to presently immaterial exceptions:[6]

a development application that:

...

(c) in the case of an application for development in a district outside of the district of the City of Perth - is for the approval of development that has an estimated cost of $10 million or more,

is of a class prescribed under section 171A(2)(a) of the Act.

Despite any other provision of the Act or a planning instrument, any DAP application for approval of development within a district for which a DAP is established:

(a) must be determined by the DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and

(b) cannot be determined by the local government for the district or the Commission.

The Regulations go on to make specific provision in relation to the content and determination of a 'DAP application'. The phrase 'DAP application' is defined to include a development application prescribed under reg 5 of the Regulations.[7] The requirements include that:

(1) The applicant must, when lodging a DAP application, give to the relevant local government a completed notice in the form of Form 1 in Sch 3 and pay the relevant fee in Sch 1 to the Regulations.[8] The form requires the applicant to state the '[e]stimated cost of development'. The fees are specified by reference to the 'estimated cost of the development'.[9]

(2) On receipt of a DAP application, the local government must consider the application and all accompanying material and may require further specified information or documents.[10]

(3) Within seven days after the date on which it receives a DAP application, the local government must give a copy of the application and certain other material to the administrative officer of the relevant DAP.[11]

(4) The local government must give a report on a DAP application to the presiding member of the relevant DAP within a defined period.[12]

(5) Subject to presently immaterial exceptions, the provisions of the Act and the planning instrument under which a DAP application is made apply to the making and notification of a determination by the relevant DAP as if it were the responsible authority in relation to the planning instrument.[13]

The term 'development' is relevantly defined in s 4(1) of the Act to mean:

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.

The phrase 'development application' is relevantly defined to mean an application under a planning scheme for approval of development.

The primary judge initially identified this branch of the appellants' case as involving two alternative propositions:

(1) The City had no jurisdiction to determine the KMart Application because the estimated cost of the KMart development in truth included the estimated cost of the site works necessary for the development and was more than $10 million.

(2) In substance the Site Works Application, the KMart Application and the ALDI Application comprised applications for a single development with an estimated cost of $13.5 million plus GST and therefore met the $10 million threshold.[14]

The primary judge then identified the construction of reg 5 advanced by the appellant as being:[15]

that a development application will be prescribed if the estimated cost of the 'development' is $10 million or more, whether approval for the entire works comprising that development is sought in one or more development applications.

The primary judge concluded that the correct or preferable interpretation of the Regulations does not require that the Site Works Application and the KMart Application (or the KMart Application and the ALDI Application) be considered as one application for the purposes of reg 5 of the Regulations.[16] His Honour held that a 'development application' in its ordinary meaning and in the context of the Act and the Regulations is a formal application to the responsible authority for approval of a specified development. The Regulations do not provide for separate formal applications to be deemed to be a combined or composite application for the purposes of reg 5. The primary judge said that there is no foothold in the text of the regulation to construe it in that manner.[17]
The primary judge also accepted that an applicant for development may determine what is to be the subject matter of the application.[18] The Act did not authorise the making of regulations as to what may be the subject of a development application nor what constitutes a development application. Those were matters for the relevant planning instrument.[19] The Act and Regulations did not require a local government to combine or amalgamate separate development applications for the purposes of a referral to a DAP, rather than considering each development application on its merits.[20]
The primary judge viewed various provisions of the Regulations as showing that the development application referred to and considered by a DAP will be a single development application that reaches the statutory $10 million threshold, unaffected by any other development application.[21]
The primary judge rejected the appellants' submission that the purpose of s 171A(2)(a) and reg 5 would be undermined if applications for separate developments are treated as separate developments notwithstanding that they are, or may be, sequential developments of the same land or related developments of adjoining land. His Honour said that, if each application is capable of being presented and considered as a separate development and is the subject of a separate formal application, then the local government may consider each application in accordance with relevant statutory instruments and planning principles.[22] He concluded that the Explanatory Memorandum to the Approval and Related Reforms (No 4) (Planning) Act 2010 (WA), which introduced the DAP provisions into the Act, does not disclose any purpose which requires the statutory provisions to be construed in the manner advocated by the appellants.[23] His Honour said:[24]

The object of the DAP provisions is to streamline the development process, not to constrain the applications for development which a developer may make. It is not contrary to the purpose or objects of the DAP model to permit a developer to apply to a local government for approval of a development on a site and then subsequently apply to the local government for a further development on the site where each development application considered separately is not a mandatory DAP application, that is a development application which must be determined by a DAP.

The primary judge also considered the construction contended for by the appellants to be unworkable. His Honour said:[25]

It would require the local government to assess whether all aspects of the 'development application' are included in each application that is lodged. What criteria are to be applied given that the legislation does not say what forms part of a single development and what may be separate developments? If it is to be determined objectively, such a requirement will in effect mean that landowners will be confined as to the development approvals that they can seek by some unguided assessment made by a local authority of what the application should be for. An incorrect assessment would mean that it is determined by a local authority without jurisdiction resulting in invalidity. What is to happen where applications in respect of the same land are lodged weeks or months later? Are they then to be evaluated to see whether they form part of the same development? What if approval has been given of the earlier application in the meantime?

The appellants submit that their preferred construction flows from the ordinary meaning of the reference to the 'estimated cost' of development for which approval is sought. The appellants submit that this reference necessarily encompasses the estimated cost of all works required to carry out the physical alterations identified in the development application.[26] The appellants further submit that the 'development' for which approval is sought includes the proposed use to which the land is to be put. They say that the estimated cost of such development necessarily includes the estimated cost of all works which the developer proposes to carry out in order to render the land capable of being approved for, and put to, the proposed use. The appellants submit that this is so even if those works are not identified in the development application.[27] The appellants say:[28]

[T]o identify the estimated cost of 'development' for which approval is sought necessarily requires the identification of the estimated cost to carry out all works which the developer intends to carry out in order to complete the proposed physical alterations to the land so as to be able to put the land to the proposed use for which development approval is sought.

The appellants submit that their preferred construction would advance, and the construction adopted by the primary judge undermines, the purpose of the legislation. The purposive argument is advanced at two levels.
More broadly, it is contended that the purpose of requiring approval to be obtained is to enable the entirety of the proposed development, both as to the proposed physical alterations and the proposed use, to be assessed against applicable planning criteria. It is submitted that the legislative scheme does not contemplate the approval process being fragmented by discrete aspects of the works necessary for the proposed development being made the subject of separate development applications and approvals.[29]
More narrowly, the appellants submit that the purpose of s 171A(2)(a) of the Act is to require that developments of a certain magnitude or significance (measured by reference to the estimated cost of the proposed works) be determined by a DAP, as a specialist planning body, rather than by the responsible authority. The appellants submit that it may properly be inferred that this is, amongst other things, to ensure consistency in planning decisions across local governments with respect to developments of sufficient size.[30] The appellants submit that the primary judge's construction would enable a developer to split proposed works having an estimated cost of $10 million or more across two or more development applications, for determination on a piecemeal basis by the responsible authority. It is said such a construction would undermine the legislative purpose of s 171A(2)(a) and reg 5, and should not be adopted unless the words of reg 5 are incapable of bearing a construction which gives effect to its purpose.[31]
The appellants submit that the 'unworkable'[32] consequences which the primary judge identified can only arise in a very narrow subset of applications, namely where the developer wishes to split development with an estimated cost of $10 million or more across more than one development application.[33] They submit that the primary judge's construction itself has the potential for practical difficulties in operation, for example where a developer increases the scope of the proposed works before the responsible authority determines the application.[34]

The statutory criterion for determining the respective jurisdiction of local governments and DAPs to determine a development application is the estimated cost of the development for which approval is sought. The structure of the Regulations, in particular the requirement for action to be taken when an application is lodged,[35] indicates that the character of a development application as a 'DAP application' must be ascertainable at the point in time at which it is lodged.
The reference to an 'estimated cost' is to the outcome of a process of estimation which must have been undertaken by someone. At least ordinarily, at the point when the development application is lodged, that process will have been undertaken by or on behalf of the person seeking to undertake the development and who is applying for approval to do so. Irrespective of who undertakes that estimation process, the character of a development application as a DAP application will depend on the outcome of a process of estimating cost undertaken at or prior to the time at which the development application is lodged.
The difficulty of estimating construction costs is illustrated by the notorious frequency with which significant construction works run over budget. A variety of approaches to estimating cost may be undertaken, from the application of a notional cost per square metre of constructing certain kinds of building to an analysis by a quantity surveyor of a detailed construction plan. Different allowances for contingencies may be made. Development costs may be significantly affected by the conditions imposed on a development approval. A genuine estimation of development costs may be regarded as wildly inaccurate when compared with the actual costs ultimately incurred.
It may be accepted that the reference to 'estimated costs' is to costs which have been genuinely estimated; ie to an estimation which is not colourable. The appellants say that the estimation must also be reasonable. We doubt whether that is the case, but if there is an implicit requirement of reasonableness then such a requirement will not necessarily be transgressed merely because the person making the estimation has not accounted for a cost which will be involved in the development.
In the present case, the only evidence of an estimation of the costs of the development for which approval was sought in the KMart Application, at the time that application was made, is the $9 million indicated in the application itself. As noted above, the appellants' submission is that the reference in reg 5 to 'cost' is to the cost of all works which the developer proposes to carry out in order to complete the proposed physical alterations to the land so as to be able to put the land to the proposed use. Even if that submission is accepted, it does not deny the $9 million estimation the character of the estimated cost of the development for which approval was sought in the KMart Application. If the appellants' submission is accepted, the consequence would be that the estimated cost of $9 million would fail to take into account the cost of some of the physical alterations required for the relevant part of Lot 17 to be put to the proposed use. However, the estimate would remain an estimation of the cost of the development for which approval was sought by the KMart Application.
The appellants submit that the estimated cost of development for which approval was sought in the KMart Application is the sum of the development costs estimated in the KMart Application and the Site Works Application.[36] We do not accept that submission. The development for which approval was sought in the Site Works Application was that which was required to subdivide Lot 17 into 10 new lots. The development for which approval was sought by the KMart Application was located on only one of those lots (proposed lot 10).[37] The development for which approval was sought in the Site Works Application was clearly not confined to works on proposed lot 10 and other works required for putting proposed lot 10 to the uses of a discount department store and showrooms.
Even if the appellants' construction of the Regulations were to be accepted, there was no evidence before the primary judge that the estimated cost of the development for which approval was sought in the KMart Application exceeded $10 million. The failure by the appellants to demonstrate the existence of such an estimate at the time the KMart Application was made means that they have not established that the KMart Application was a 'DAP application' which the City lacked jurisdiction to determine.
In any event, as a matter of construction, the reference to 'estimated cost' in reg 5(b) is confined to the cost of undertaking the development for which approval is sought in the development application. The reference does not extend to work for which approval is not sought by the development application, even where that work is a necessary precursor to the development proposed in the development application. In the present case, the works on the site and other works identified in the Site Works Application were specifically excluded from the scope of the KMart Application.[38] The cost of undertaking development for which approval was not sought in, and which was specifically excluded from, the Kmart Application cannot properly form part of the estimated cost of undertaking the development for which approval was sought for the purposes of reg 5(b) of the Regulations.
The construction we have adopted reflects the natural and ordinary meaning of the language used in the Regulations, considered as a whole and understood in the context of the Act. It is consistent with the stated purpose of the Act to provide for an efficient and effective land use planning system in the State.[39] The appellants' construction would tend to defeat that object by making it more difficult to ascertain the jurisdiction of local governments and DAPs to determine development applications in marginal cases. Recognising that the Regulations define DAP applications by reference to the estimated cost of only the development for which approval is sought reduces the scope for jurisdictional disputes which are apt to delay the determination of applications and create doubts about the validity of approvals which are granted.
The appellants' submissions are largely driven by a concern to prevent a developer fragmenting the approval process by making separate development applications in respect of discrete aspects of a development, and thereby avoid mandatory determination by a DAP.[40] There is no express anti-avoidance provision in the Act, and we see no warrant for implying such a statutory purpose. Neither the Act nor the Regulations create any obvious incentive for a developer to adopt such an approach. The quantum of the estimated cost of development for which approval is sought does not affect the planning legislation and policies which are to be applied in determining the application. The only change caused by a lower estimated cost of development is the identity of the public authority which will determine the development application.
Further, as the primary judge correctly recognised,[41] s 171A(2)(a) of the Act authorises the making of regulations identifying the class or kind of development application which must be determined by a DAP. It does not authorise the making of regulations which constrain the scope of a development application which an applicant may choose to make. Any limits on the permissible scope of development applications will depend on the terms of the relevant planning scheme. Absent such a provision in the relevant planning scheme, there is nothing in the Act or Regulations to limit the choices which a developer may make as to the scope of a development application or the different stages at which approval may be sought. There is no basis for identifying a legislative policy against the fragmentation of development applications.
It should also be noted that the appellants' construction would involve the differential treatment of development applications which are of the same substantive effect from a planning perspective. For example, in the present case, on the appellants' construction, the City would have jurisdiction to determine the KMart Application if that application had been made after the development authorised by the approval of the Site Works Application had been completed. On this construction, the City would also have jurisdiction to determine the KMart Application if it had been conducted by a developer other than Realview (for example, by KMart pursuant to the terms of a development lease or following an agreement for the sale of proposed lot 10 to KMart). From a planning policy perspective, it is difficult to see the justification for treating applications for what will ultimately result in an identical development differently by reason of such differences.
We do not accept the appellants' submission that there is to be inferred from the terms of the legislation a purpose of ensuring consistency in planning decisions across local governments with respect to developments of sufficient size. Developments in different local government districts are regulated by the different provisions of planning schemes applicable in each district, and the different planning policies made under those schemes. Further, the DAP which determines a development application may be an LDAP, which is created for a single local government district, or a JDAP in the case of two or more government districts. There is no reason to suppose that the variance in approach between different LDAPs or JDAPs dealing with development applications made under a variety of different planning schemes is any greater than that of different local governments.
We also agree with the conclusion of the primary judge, for the reasons his Honour gave,[42] that the Regulations did not require that the Site Works Application and the KMart Application be considered as a single application for the purposes of reg 5 of the Regulations.
For these reasons, the KMart Application was not a development application for the approval of 'development that has an estimated cost of $10 million or more', within the meaning of reg 5(c) of the Regulations. Ground of appeal 1, which in effect alleges that the primary judge erred in reaching a contrary conclusion, is not established.

Issue 2: permitted uses under cl 4.4.2 of LPS 21 Provisions of the Act

Section 69 of the Act provides for the making of local planning schemes with respect to land, with the general objects of making suitable provision for the improvement, development and use of land in the scheme area. A planning scheme may also make provision in relation to matters referred to in Sch 7 to the Act. Those matters include the zoning of the scheme area for appropriate purposes, and the designation of uses in zones as permitted, prohibited or requiring approval.[43] They also include:[44]

Approval, refusal or approval subject to conditions of any use or class or kind of development by a consideration of any matter to which the Act relates including the public interest.

A local planning scheme may be prepared or adopted by a local government under s 72 of the Act. After advertising and consultation, and subject to environmental assessment, a local planning scheme is submitted to the Minister for his or her approval under s 87(1) of the Act. The Minister may approve the scheme, require the relevant local government to modify and resubmit the scheme for approval, or refuse to approve the scheme.[45] A similar process is prescribed for amendments to a local planning scheme.[46] By s 87(4) of the Act:

A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act.

Section 68 of the Act provides that, on the day on which the section comes into operation (which was 9 April 2006), a town planning scheme in force under the former Town Planning and Development Act 1928 (WA) continued in force as a local planning scheme under the Act. By this means, Busselton Shire Council District Town Planning Scheme No. 20 (TPS 20), to which reference is made later in these reasons, continued as a local planning scheme after 9 April 2006.

LPS 21 is a local planning scheme made under the Act which came into force on 15 October 2014.
Clause 4.1 of LPS 21 classifies the Scheme area into zones shown on the Scheme map, including the 'Business' and 'Restricted Business' zones.
Clause 4.2.2 provides for the objectives and policies for the 'Business Zone'. The objectives of that zone are:

(a) To provide for conveniently-located shopping and other service associated commercial activities to service each centre's catchment area, as determined by the relevant planning framework.

(b) To maintain and reinforce the viability of existing commercial centres, including those supporting adjoining agricultural areas.

Clause 4.2.3 identifies the following objectives and policies of the 'Restricted Business Zone':

Objective

To make adequate provision for other commercial needs and opportunities not ideally located in the town centres of Busselton and Dunsborough whilst having regard to the strategic importance and need to maintain the commercial primacy of the town centres.

Policies

(a) To provide for development having relatively low traffic-generating characteristics, but not high turnover shops and offices that might more properly be located in the Business zone.

(b) To provide for relatively low intensity commercial and retail uses with extensive floor space requirements which, by the nature of the activity conducted, require relatively direct and easy access to motor vehicle parking areas for loading purposes.

(c) To provide for development which will not result in a detrimental impact on surrounding commercial centres or an overall adverse impact on commercial centres.

(d) To restrict development which is likely to contribute to ribbon development, the spread of town centres, or otherwise detrimentally impact the efficiency of main or arterial roads.

Clause 4.3 provides that the Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones.
Under cl 4.3.2, a 'P' designation in the Zoning Table means that the use is permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme. 'X' means a use that is not permitted by the Scheme.
'Showroom' is a 'P' use in the Restricted Business Zone. 'Shop' is a 'P' use only in the Business Zone, and an 'X' use (not permitted) in all other zones. 'Discount Department Store' and 'Supermarket', while defined in Sch 1 to LPS 21, are not referred to in the Zoning Table.
Clause 4.4 provides:

4.4.1. Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.

4.4.2. If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the local government may:

(a) determine that the use is consistent with the objectives of the particular zone and is therefore permitted; or

(b) determine that the use may be consistent with the objectives and policies of the particular zone and thereafter follow the advertising procedures of clause 10.4 in considering an application for planning approval; or

(c) determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.

Under cl 4.5.1, notwithstanding the provisions of clause 4.3 and 'Table 1', the City may approve any development consistent with a Development Guide Plan adopted pursuant to Part 7 of the Scheme. There is no evidence that a Development Guide Plan has been adopted by the City with which the development is consistent.
Clause 4.7 provides:

Notwithstanding anything contained in the Zoning Table, the land specified in Schedule 2 may be used for the specific use or uses that are listed in addition to any uses permissible in the zone in which land is situated subject to the conditions set out in Schedule 2 with respect to that land.

Item A64 of Sch 2 and the Scheme map identify a 'Discount Department Store' as an additional specified use the A64 Area. The 'Conditions' column of item A64 contains the following provisions:
1. The additional use specified shall be deemed to be a 'D' use for the purpose of Part 4 of the Scheme.
2. Development shall be in accordance with a Land Use Concept Plan adopted by Council.

The additional use specified shall comprise a single discount department store with a gross leasable floor area of not less than 5,000m² and not more than 8,000m².

Under cl 4.3.2, a 'D' use is a use that is not permitted unless the City has exercised its discretion by granting planning approval.

Part 6 makes provision in relation to Special Control Areas. Clause 6.1.1 provides for a number of different kinds of special control areas, including 'Special Provision' areas. Clause 6.1.2 provides:

In respect of a special control area shown on a Scheme map, or otherwise set out in the Scheme, the provisions applying to the special control area apply in addition to the provisions applying to any underlying zone or reserve and any general provisions of the Scheme.

Clause 6.3.1 makes the following provisions in relation to Special Provision areas:

Notwithstanding any other provisions of the Scheme, use and development of land identified on the Scheme map within a Special Provision area and specified in Schedule 3, shall be subject to those provisions listed within Schedule 3 specific to the land in addition to any provisions which are generally more applicable to such land under the Scheme.

Item SP26 of Sch 3 identifies Lot 17 and the adjacent Lot 16 for the purposes of this provision. That item provides that development shall be in accordance with a Land Use Concept Plan adopted by Council. Item SP26 also contains a number of specific requirements for development on Lots 16 and 17.
Clause 9.1 provides that, subject to cl 9.2:

[A]ll development on land zoned and reserved under the Scheme requires the prior approval of the local government. A person must not commence or carry out any development without first having applied for and obtained the planning approval of the local government under Part 10.

Clause 9.2 identifies 'permitted development' which, except as otherwise provided in the Scheme, does not require the planning approval of the City. Clearly, none of the development that is proposed on Lot 17 is identified as permitted development by cl 9.2 of LPS 21.

Part 10 deals with the requirements of an application for approval of development. Clause 11.2 identifies the matters to which the City must have due regard in considering an application for planning approval, including the aims and provisions of LPS 21. Clause 11.3 empowers the City to grant its approval with or without conditions or refuse to grant its approval. By cl 11.7:

Planning approval may be granted:

(a) for the use or development for which the approval is sought;

(b) for that use or development, except for a specified part or aspect of that use or development; or

(c) for a specified part or aspect of that use or development.

Sch 1 to LPS 21 contains the following relevant definitions:

"Discount Department Store" means a premises wherein a substantial range of consumer goods are kept in a substantial number of different departments and offered for sale by a single retailer but does not include a supermarket nor a supermarket component.

"Shop" means any building wherein goods are kept, exposed or offered for sale by retail, or within which services of a personal nature are provided (including a hairdresser, beauty therapist or manicurist) but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.

"Showroom" means any building or part of a building used or intended for use for the purpose of displaying or offering for sale by wholesale or retail, automotive spare parts, carpets, large electrical appliances, furniture, hardware or bulky goods but does not include the sale by retail of foodstuffs, liquor or beverages, items of clothing or apparel, magazines, newspapers, books or paper products, china, glassware or domestic hardware, or items of personal adornment.

"Supermarket" means premises used to sell a range of food and household convenience goods by retail but does not include a discount department store, showroom or takeaway food outlet.

The definition of 'Shop' excludes from its scope 'any other premises specifically defined elsewhere in' pt 13 of LPS 21. 'Discount Department Store' and 'Supermarket' are both premises specifically defined elsewhere in pt 13 of LPS 21. The primary judge held that the latter premises were expressly excluded from the scope of the definition of 'Shop'. As 'Discount Department Store' and 'Supermarket' were not referred to in the Zoning Table of LPS 21, those uses could be permitted under cl 4.4.2 of LPS 21.
The primary judge gave three reasons for this conclusion:

(1) The construction of 'Shop' as including a 'Discount Department Store' and a 'Supermarket' was not reasonably open on the text of cl 4.4.2, the Zoning Table and the definition of 'Shop' in pt 13 of LPS 21. The meaning that a 'Shop' includes a 'Discount Department Store' and a 'Supermarket' can only be achieved by rewriting cl 4.4.2, the relevant definitions or the relevant entries in the Zoning Table or some combination of those provisions.

(2) The construction advanced by the respondents is not absurd or unreasonable. A 'Discount Department Store' and a 'Supermarket' are 'D' uses in both the 'Business' and 'Restricted Business' zones. In each case the City can make a determination in accordance with cl 4.4.2 as to whether the use is permitted.

(3) The appellants did not state how the City and the Minister would have changed the text of cl 4.4.2, the Zoning Table and the definitions in pt 13 so as to give effect to the intention which the applicants attribute to the City and the Minister. Even if the court considers that the natural and ordinary meaning of the relevant statutory provisions produces a result that is unintended or the result of a drafting mistake or oversight, the court may only overcome the error or oversight if it is possible to state with certainty what words would have been adopted by the City and approved by the Minister had their attention been drawn to the problem. This principle constitutes an insurmountable hurdle for the appellants.

On appeal, the appellants advance three bases for contending that the use of Lot 17 as a 'Discount Department Store' or 'Supermarket' could not be permitted under cl 4.4.2 of LPS 21.
First, the appellants submit that the term 'Shop' in the Zoning Table is not used in the same sense in which that term is defined in Sch 1 to LPS 21. This is on the basis that the concluding exclusionary words of the definition of 'Shop' in Sch 1 were not intended to be imported. Clause 4.4.1 of LPS 21 deals with the question of overlap, providing that:

Where a specific use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.

The appellants submit that cl 4.4.1 renders the concluding words of the definition of 'Shop', underlined in the following quote, unnecessary:

"Shop" means any building wherein goods are kept ... but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.

The appellants say that, not only is the adoption of the underlined part of the definition unnecessary, but adoption of it into the Zoning Table would have a radically different effect to that of avoiding overlapping use descriptions. It would exclude some uses from the Zoning Table altogether. The appellants therefore submit that the underlined words do not apply where the term 'Shop' is used in the Zoning Table. If that underlined part of the definition is not applied to the Zoning Table, both a 'Discount Department Store' and 'Supermarket' are a 'Shop' for the purposes of the Zoning Table.
Second, the appellants submit that use as a 'Discount Department Store' and 'Supermarket' fall within the 'type, class or genus of activity of' a 'Shop' for the purposes of cl 4.4.2 of LPS 21. That is so even if 'Shop' is employed in the Zoning Table in the sense in which that term is defined by Sch 1. Therefore, even if a 'Discount Department Store' or 'Supermarket' is not a 'Shop', as that term is used in the Zoning Table, neither of those two uses can be permitted under cl 4.4.2 of LPS 21.
However, the appellants do not contend that, if cl 4.4.2 was otherwise applicable, it was not open to the City to determine that the uses of 'Discount Department Store' and 'Supermarket' were or may be consistent with the objectives, or objectives and policies, of the Restricted Business Zone.[47]
The third basis for the appellants' contention depends on the acceptance of its submissions as to the purpose of making Amendment No. 72 to TPS 20 (Amendment 72). The appellants submit that LPS 21 substantively adopted the relevant provisions of TPS 20 as affected by Amendment 72.
Prior to the making of Amendment 72, Lots 16 and 17 were zoned 'Residential' under TPS 20. 'Shop' was defined in the same terms as in LPS 21. 'Shop' was a permitted use in the 'Business' Zone, and prohibited in all other zones unless specifically permitted elsewhere in the Scheme.
Amendment 72 made the following amendments to TPS 20:[48]

(1) Lots 16 and 17 were rezoned 'Restricted Business' and 'Recreation', as depicted on the Scheme amendment map;

(2) There was a realignment of the boundary of a wetland on Lots 16 and 17 and nearby land, as depicted on the Scheme amendment map;

(3) Lots 16 and 17 were included in the 'Special Provision Area' under the equivalent to cl 6.3.1 of LPS 21 in terms reflecting those noted at [57] above;

(4) 'Additional Use' provisions were added allowing the use of the A64 Area as a 'Discount Department Store' subject to conditions;

(5) Definitions of 'Discount Department Store' and 'Supermarket', reflecting the current definitions in LPS 21, were added into Sch 1.

The appellants submit that the purpose of Amendment 72 was to re-zone Lots 16 and 17 as Restricted Business and to provide for the future commercial development of a defined part of Lot 17 as a 'Discount Department Store'.
The appellants submit that the legislative purpose of introducing the definition of 'Discount Department Store' was to make clear what was to be permitted on the A64 Area. The definition of 'Discount Department Store' expressly excluded a 'Supermarket'. Amendment 72 introduced the definition of 'Supermarket' at the same time to make clear the extent of that exclusion. The appellants submit that the introduction of those two definitions was not intended to have the effect of either permitting use of land as a 'Discount Department Store' outside the A64 Area, nor of permitting the use of any part of Lot 17 as a 'Supermarket'.
The appellants submit that the definition of 'Shop' in Sch 1 should be read into the substantive provision (the Zoning Table) and then the Zoning Table construed in its context and having regard to its purpose or object. The structure and general policy of LPS 21 is inconsistent with an intention that use of an area of land as a 'Supermarket' or 'Discount Department Store' would be left unallocated in the Zoning Table, to be governed exclusively by cl 4.4.2. The appellants say that a literal reading of the provisions does not conform to the relevant intent as ascertained from the provisions of the instrument, including the policy which may be discerned from those provisions. They say that there is no uncertainty as to how the text of the definition would be changed to give effect to its true intent. The appellants submit that the relevant context requires that, when it is used in the Zoning Table, the term 'Shop' bears a modified meaning which does not exclude use as a 'Discount Department Store' or 'Supermarket'.
This submission requires that words either be added to or deleted from the text of LPS 21. One mechanism which could achieve the substantive effect for which the appellants contend would be to read the following underlined words into the definition:[49]

'Shop' means any building wherein goods are kept, exposed or offered for sale by retail ... but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part other than a 'Discount Department Store' or 'Supermarket'.

Another mechanism raised during the course of oral argument would be to read the following underlined words into the definition:[50]

'Shop' means any building including a 'Discount Department Store' or 'Supermarket' wherein goods are kept, exposed or offered for sale by retail ... but does not include a showroom, fast food outlet or any other premises specifically defined elsewhere in this part.

The submissions in this case were directed to establishing legislative intention. The relevant intention which is identified by the process of statutory construction is not the subjective understanding or motives of persons exercising delegated legislative power. Much less is it the subjective understanding or motivation of the officials charged with drafting the legislative text. Rather, the construction of LPS 21 is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai:[51]

It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws ... the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. (citations omitted)

Three aspects of that constitutional relationship between the arms of government are of particular significance in the present case.

The first aspect is the imperative to give primacy to the language which the legislating body has chosen to use. As the plurality observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[52]

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (citations omitted)

This focus on the statutory text may be seen as an aspect of the rule of law. It recognises and preserves the role of the legislature, acting within constitutional constraints, in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text. This point was noted by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:[53]

The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature' ... it may lead judges to put their own ideas of justice or social policy in place of the words of the statute.

Additionally, focus on the statutory text facilitates the comprehension of the meaning of legislation by persons whose conduct it regulates. As French CJ observed in Alcan:[54]

The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [(1991) [1991] HCA 28; 172 CLR 319 at [340] as: 'dictated by elementary considerations of fairness, for, after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.' In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy. (some citations omitted)

These considerations are no less important when the legislative instrument being construed is a planning scheme. The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
That is not to say that the statutory text is to be read divorced from its context and purpose. Context and purpose may affect the meaning of the language that Parliament has chosen to use. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words are used with other than their ordinary meaning.[55] The task of construction is not to make a fortress out of the dictionary.[56] However, the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.
In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach.[57] But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.

The second aspect of the constitutional relationship is that the legislative purpose which informs the proper construction of legislation is itself ascertained by a process of statutory construction, rather than the mere attribution to the legislature of what the court might regard as a desirable policy outcome. That is, legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions.[58] Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted.[59] Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.[60] To do so would be inconsistent with the constitutional role of the courts and their proper relationship with Australian parliaments.

The third aspect of the constitutional relationship between the different arms of government which is of particular significance in this case concerns the circumstances in which courts may address what are alleged to be drafting errors.
In Taylor v The Owners - Strata Plan 11564,[61] the High Court recognised that there are some circumstances in which purposive construction may allow for the reading of a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. French CJ, Crennan and Bell JJ observed:[62]

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.(citations omitted)

Their Honours referred to three conditions identified by Lord Diplock in Wentworth Securities v Jones,[63] as modified by Lord Nicholls in Inco Europe Ltd v First Choice Distribution.[64] Those conditions were summarised by French CJ and Bell J in Minister for Immigration v SZJGV as follows:[65]

Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of "crucial importance". Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.

In Taylor, French CJ, Crennan and Bell JJ went on to note:[66]

However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that 'the modified construction is reasonably open having regard to the statutory scheme' because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd [(1997) [1997] HCA 53; 191 CLR 85 at 113], the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, '[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances'.

Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be 'too far-reaching'. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution. (some citations omitted)

Identification of purpose and drafting errors is therefore a matter of statutory construction, giving effect to the whole of the statutory text in its context. Where there is an obvious drafting error, the true meaning of the language is apparent from the statutory text understood as a whole in its relevant context, even though that meaning is not literal or grammatical. The objective legislative intention is revealed by the statutory text, even if the manner in which the intention is revealed involves an ungrammatical use of language in other than its ordinary sense. The objectively intended meaning must be apparent from the perspective of the reader, as opposed to the author, of the statutory text.
This concept was explained by Gageler and Keane JJ in Taylor:[67]

Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always'. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. (citations omitted)

While their Honours were in dissent in Taylor, nothing in the majority judgment was inconsistent with the above statement of principle.

Appellants' submission as to the meaning of 'Shop' in the Zoning Table

There is no merit in the appellants' first submission that the term 'Shop' in the Zoning Table is not used in the sense in which that term is defined in Sch 1 to LPS 21. The structure of LPS 21 is to identify uses in the Zoning Table by single words or short phrases, all of which are defined in Sch 1 to LPS 21. There is no other point at which the term 'Shop' is defined, and no textual basis for concluding that only the first half of the definition in Sch 1 is applicable to the Zoning Table. The meaning of the definition is plain and unambiguous; the term 'Shop' does not include premises specifically defined elsewhere in pt 13 of the Scheme. 'Discount Department Store' and 'Supermarket' are both specifically defined elsewhere in Sch 1, which is in pt 13 of LPS 21. They are not a 'Shop' as that term is used in the Zoning Table.
The appellants rely on the fact that the phrase 'Discount Department Store' is only used in the schedules to LPS 21,[68] and does not appear in the Zoning Table. However, there are other instances in LPS 21 where terms defined in Sch 1 do not appear in the Zoning Table but nonetheless have significance for the operation of the main body of the Scheme text, including the Zoning Table. A number of defined terms affect the meaning of other defined terms used in the Zoning Table.[69] Other defined terms have a more general operation,[70] or are used in specific provisions of the scheme text.[71]
The terms 'Caretaker's Residence' and 'Manager's Residence' and 'Research and Development Facility' are defined in Sch 1 but appear only in Sch 2 to the Scheme. The former two definitions may also operate to limit the meaning of 'Tourist Accommodation', the definition of which also excludes places used for a purpose elsewhere specifically defined in Sch 1, but that is not their only function. It may also be noted that some terms are defined but are not evidently used elsewhere in the Scheme.[72]
The term 'Shop' appears in the Zoning Table, in cl 5.20.1, the definitions of 'Corner Shop' and 'Hospital' in Sch 1, certain items in Sch 2[73] and other schedules.[74]
In our view, there is nothing in the use of the terms described above which suggests that 'Shop' is used in the Zoning Table in other than the sense defined in Sch 1 to LPS 21.
We do not accept that the words 'but does not includes a showroom, fast food outlet or any other premises specifically defined elsewhere in this part' in the definition of 'Shop' are implicitly excluded on the basis that they are made redundant by cl 4.4.1 of LPS 21. Clause 4.4.1 deals with general and specific uses mentioned in the Zoning Table. Some, but not all, of the terms used in the Zoning Table are defined in a way that excludes other buildings or places specifically defined in Sch 1.[75] While there is some overlap in the provisions, their function is different. Clause 4.4.1 is concerned with uses specified in the Zoning Table while the exclusionary components of the definitions are concerned with the meaning of other defined terms in pt 13. No intention to use defined terms other than in their defined sense can be inferred from the presence of cl 4.4.1 of LPS 21.
The operation which is produced by applying the defined terms to the Zoning Table is not irrational or absurd. The result is that the uses of 'Discount Department Store' and 'Supermarket' are not regulated by the Zoning Table. The permissibility of those uses in any zone is to be determined by the City under cl 4.4.2, by reference to the consistency of those uses with the objectives, or objectives and policies, of the particular zone in which those uses are proposed. Regardless of the permissibility of the uses in a particular zone which is determined under cl 4.4.2, development comprising a 'Discount Department Store' or 'Supermarket' still requires development approval, which may be granted or refused having regard to the matters specified in cl 11.2 of LPS 21. There is nothing about that planning outcome which suggests that it could not have been intended.
This is not a case where the appellants can succeed on the basis that the statutory context or legislative purpose shows that the words in LPS 21 are invested with a meaning that differs from their ordinary meaning. Having regard to the structure of LPS 21, the statutory language employed, the context and purposes of LPS 21, the objective meaning of the words is clear. The primary judge was correct to find that the only meaning reasonably open on the language of the relevant provisions of LPS 21, considered in their context, was that neither a 'Discount Department Store' nor a 'Supermarket' was a 'Shop' for the purposes of the Zoning Table.

Nor is there any merit in the appellants' second submission that a 'Discount Department Store' and 'Supermarket' fall with the 'type, class or genus of activity of' a 'Shop' for the purposes of cl 4.4.2 of LPS 21. As 'Discount Department Store' and 'Supermarket' are expressly excluded from the definition of 'Shop', those uses cannot be regarded as falling in the same type, class or genus of activity as the use defined as 'Shop'. In any event, merely excluding 'Discount Department Store' and 'Supermarket' from the scope of cl 4.4.2 in this manner would not assist the appellants. On this argument, no provision would be made in relation the permissibility of the uses of 'Discount Department Store' and 'Supermarket', either in the Zoning Table or cl 4.4.2 of LPS 21. The City's discretion to grant development approval for works designed to facilitate such a use would not be affected by any provision in LPS 21 as to the permissible use of land. There would therefore be no basis on which to impugn the grant of development approval, under cl 11.3 of LPS 21, for those uses on Lot 17.

This leaves the third submission which the appellants advance, which is based on the alleged obvious drafting error made in the course of adopting Amendment 72.
We cannot be satisfied that it was an intended purpose of LPS 21 to provide that use of land as a 'Discount Department Store' is not permitted outside the Business Zone and the A64 Area, and that use of land as a 'Supermarket' is not permitted outside the Business Zone. We therefore cannot be satisfied that the draftsperson of LPS 21, the City and the Minister failed, through inadvertence, to give effect to that purpose.
It is important to recognise that the statutory instrument being construed is LPS 21 and not Amendment 72 to TPS 20. While many of the provisions of TPS 20 are reflected in LPS 21, there are also substantial differences. LPS 21 was not merely a re-enactment of TPS 20. As is the case when construing any piece of legislation, the legislative history preceding the making of LPS 21 is part of the context in which the current statutory text may be understood. However, any failure of Amendment 72 to give effect to its objectively ascertained purpose cannot be simply imputed to LPS 21. There is nothing in the terms of LPS 21, or the circumstances existing when LPS 21 was made, to indicate that LPS 21 was made other than for the objective purpose of giving effect to the plain meaning of its text. It cannot be concluded that LPS 21 was made for the same purpose as Amendment 72, which was Gazetted over 7 years previously.
Further, focussing on Amendment 72 does not lead to success for the appellants. It is clear from the text of Amendment 72 that it was made for the purpose of designating 'Discount Department Store' as a 'discretionary' use in the A64 Area. There is no question that Amendment 72 achieved that object. It is far less clear that Amendment 72 was made for the purpose of maintaining the status of 'Discount Department Store' and 'Supermarket' as uses which were not permitted on other land. That purpose was not reflected in the language actually used in Amendment 72, understood in the context of the provisions of TPS 20 which were in force at that time. It may be the case that the form of Amendment 72 produced consequences which were not subjectively anticipated by the draftsperson or those who approved the drafting. However, that is not to say that the legislation failed to give effect to the objectively ascertained purpose. Much legislation produces consequences which may not be subjectively anticipated by those who draft and enact it. But it is one thing to say that legislation produces unanticipated consequences. It is a very different thing to say that there was an inadvertent failure to give effect to the objectively ascertained legislative purpose.
Further, the clear meaning of the text of TPS 20, as amended by Amendment 72, did not produce a result which is manifestly absurd or unreasonable. The outcome reflects that achieved in LPS 21, noted above. 'Discount Department Store' was identified as a 'discretionary' use in the A64 Area.[76] The City could determine 'Discount Department Store' and 'Supermarket' to be a permitted use in other locations by reference to the consistency of the use with the objectives and purposes of the relevant zone.[77] This planning outcome cannot be regarded as irrational.
The appellants sought to rely on a precis, evidently prepared by an officer of the City, which appeared in the Agenda for the meeting of the Council of the City in which Amendment 72 was adopted for final approval. In the precis, the relevant officer indicated that the proposal was to 'permit a DDS only on the site via an additional use provision', and that the then proposed amendment would 'limit any future endeavours to seek an "out-of-town" location for a similar retail centre'.[78] The appellants seek to rely on the Agenda as extrinsic material which may be used under s 19 of the Interpretation Act 1984 (WA) in the interpretation of a provision of a written law.[79] In our view, the Agenda is not admissible for this purpose for two reasons:

(1) The Agenda is not capable of assisting in ascertaining the meaning of Amendment 72. The Agenda is not one of the kinds of material identified in s 19(2) of the Interpretation Act. Further, at the time that Amendment 72 was made, the Act did not require the Agenda to be provided to the Minister when the amendment was forwarded to her for approval.[80] There is no evidence that the Agenda was in fact placed before the Minister. As noted above, the legislative effect of Amendment 72 required action by both the Minister and the City. In our view, a document which has not been proven to be before one of the officers exercising delegated legislative power does not assist in ascertaining the meaning of Amendment 72. Nor does it assist in ascertaining the meaning of LPS 21, which was made 7 years later.

(2) The proposed use of the Agenda is not one of the uses provided for by s 19(1) of the Interpretation Act, which enables consideration to be given to material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.

As explained above, the provisions of LPS 21 and Amendment 72 are not ambiguous or obscure, and the ordinary meaning conveyed by the relevant text does not lead to a result that is manifestly absurd or unreasonable. The Agenda is, in substance, sought to be used to reverse the ordinary meaning conveyed by the text of LPS 21 and Amendment 72, rather than to confirm that meaning.

In addition, even if an 'obvious drafting error' were to be established, the words which would need to be inserted to give effect to the alleged purpose are too much at variance with the Scheme text of LPS 21. The added words would not merely supplement or explain the meaning of the language used in the Scheme text. Rather, they would reverse its meaning. The plain and unambiguous meaning of the Scheme text is that neither a 'Discount Department Store' nor a 'Supermarket' is a 'Shop', and therefore a use which may be permitted under cl 4.4.2 where consistent with the objectives and policies of a zone. The effect of the words which the appellants seek to add is that those uses involve use as a 'Shop', which is not permitted outside the Business Zone and, in the case of a 'Discount Department Store', the A64 Area. Adding the proposed words is not consistent with the judicial task of construing the legislation.
In oral submissions, senior counsel for the appellant placed considerable reliance on the decision of the High Court in Cooper Brookes. That case dealt with the construction of taxation legislation which was not comparable to TPS 20 or LPS 21. There are three significant distinguishing features between the present case and Cooper Brookes:

(1) In Cooper Brookes, the literal meaning of a provision produced a result which was regarded by a majority of the High Court as 'incongruous',[81] 'irrational'[82] and 'capricious and irrational'.[83] Such a result is not apparent in the present case.

(2) The history of amendments to the legislation under consideration in Cooper Brookes enabled an identification of the process by which one provision had become an 'anachronism'.[84] In the present case, the amendment on which the appellants rely was not made to the legislation being construed, but rather to its predecessor, and does not definitively reveal any obvious drafting error even at the point in time when the amendment was made.

(3) In Cooper Brookes, there was no rewriting of the unambiguous meaning of the text of the provisions. Rather a deeming provision was held not to apply to one part of the Act.

The appellants submit that a different approach to statutory construction may be justified where definitional provisions are concerned. We do not accept that submission. It is established that the function of a statutory definition is to provide an aid in construing the statute. Generally, the proper course is to read the words of the definition into the relevant provision and then construe the latter.[85] Undertaking that ordinary process in the present case, having regard to the context and purpose of the legislation, there is no ambiguity. Whether or not an 'obvious drafting error' has occurred in a definitional or a substantive provision, the question is ultimately whether the alleged intended meaning emerges with sufficient clarity from an examination of the legislation considered as a whole in its context, and whether the invited departure from the statutory text is too great.

For the above reasons, use of Lot 17 as a 'Discount Department Store' and 'Supermarket' can be permitted under cl 4.4.2 of LPS 21 on the basis that those uses are not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category. Appeal grounds 2 and 3, which raise this second issue, are not established.

Our rejection of grounds 2 and 3 makes it unnecessary to deal with the third issue identified above, which is raised by ground of appeal 4. However, had it been necessary to do so, we would also have rejected ground 4. Even if it is assumed that the use of that part of Lot 17 standing outside the A64 Area as a 'Discount Department Store' was not permitted under the Zoning Table, it would nevertheless be permitted under cl 6.3.1 of LPS 21.
Clause 6.3.1 applies '[n]otwithstanding any other provisions of the Scheme'. These opening words contemplate that the provisions in Sch 3 may be inconsistent with other provisions of the Scheme and provide for the terms of Sch 3 to prevail to the extent of such inconsistency. Clause 6.3.1 applies to both the 'use and development of land' identified on the Scheme map within a Special Provision area and specified in Sch 3. Under cl 6.3.1, the use and development of that land 'shall be subject to those provisions listed within Schedule 3 specific to the land in addition to any provisions which are generally more applicable to such land under the Scheme'.
Lot 17 lies within a Special Provision area, and is subject to the provisions in item SP26 in Sch 3 to LPS 21. Special provision 1 in that item requires that '[d]evelopment shall be in accordance with a Land Use Concept Plan adopted by Council'. The Land Use Concept Plan adopted by Council on 24 June 2015 shows a 'Discount Department Store' in the area proposed in the KMart Application, which extends beyond the A64 Area on Lot 17.[86] There was no challenge to the validity of the adopted Land Use Concept Plan. The KMart Application meets the requirement that development of Lot 17 be in accordance with the Land Use Concept Plan.
The requirement that development of Lot 17 be in accordance with the Land Use Concept Plan is necessarily inconsistent with other provisions of the Scheme to the extent that they provide that use as a 'Discount Department Store' is not permitted outside the A64 Area. The adopted Land Use Concept Plan shows a 'Discount Department Store' extending beyond the A64 Area. Development of a 'Discount Department Store' which was confined to the A64 Area would not be in accordance with the adopted Land Use Concept Plan. However, development of a 'Discount Department Store' in accordance with the adopted Land Use Concept Plan would extend beyond the A64 Area in a manner prohibited by the other provisions.
The opening words of cl 6.3.1 resolve any such inconsistency in favour of item SP26 in Sch 3 and the Land Use Concept Plan. When the City came to determine the KMart Application having due regard to the provisions of LPS 21, it would appropriately have applied cl 6.3.1, item SP26 in Sch 3 and the Land Use Concept Plan. The validity of the development approval cannot be impugned in the manner proposed by ground 4.

Given the rejection of the grounds of appeal, it is unnecessary to determine Realview's application in an appeal to adduce additional evidence to support its submission that relief should be refused in the exercise of the court's discretion even if one or more of the grounds of appeal were established.
As none of the grounds of appeal is established, the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[3] References to the Regulations are to the Regulations as at the date of the approval of the development applications. The Regulations have been subsequently amended.

[5] Section 171A(1)(ba) makes similar provision for regulations allowing an applicant for development approval to elect to have a development of prescribed classes determined by a DAP.

[6] Reg 6 of the Regulations prescribes development applications for approval of developments outside the district of the City of Perth that have an estimated cost of $2 million or more and less than $10 million under s 171A(2)(ba) of the Act.

[14] Australian Unity Property Ltd as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton [2017] WASC 236 (primary decision) [6].

[33] Appellants' submissions pars 42 - 43.

[37] See Green AB 276. The subsequently approved subdivision plan is at Green AB 486.

[42] Primary decision [22] - [32], summarised above.

[45] Planning and Development Act s 87(2).

[46] Planning and Development Act s 75, s 87.

[48] Government Gazette 22 June 2007 p 2896 - 97 (Green AB 576 - 577).

[51] Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 [28], in an observation adopted and applied in Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [43]; Queensland v Congoo [2015] HCA 17; (2015) 256 CLR 239; Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247.

[52] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]. To similar effect, see Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] - [23]; SZTAL v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936 [14], [38].

[53] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 305. See also, Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1991) 172 CLR 319, 340.

[57] Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132 [25].

[58] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26].

[59] Certain Lloyd's Underwriters v Cross [25].

[60] Australian Education Union v Department of Education [2012] HCA 3; (2012) 248 CLR 1 [26] - [28].

[61] Taylor v The Owners - Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531.

[63] Wentworth Securities v Jones [1980] AC 74, 105.

[64] Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586, 592; [2000] UKHL 15; [2000] 2 All ER 109, 115.

[65] Minister for Immigration v SZJGV [2009] HCA 40; (2009) 238 CLR 642 [9].

[68] The term is only used in item A64 of Sch 2 and special conditions 8(b) and 15 in item SP39 of Sch 3 to LPS 21. In the latter case "Discount Department Store' is given its own specific definition.

[69] 'Amusement Machine' (used in the definition of 'Amusement Parlour'), 'Bulky Goods' (used in the definition of 'Showroom'), 'Dwelling' (which is used in a variety of definitions and elsewhere in LPS 21), 'Health Care Professional' (used in the definition of 'Professional Consulting Rooms'), 'Net Lettable Area' (used in the definition of 'Convenience Store', 'Rural Tourist Accommodation' (used in various definitions).

[70] 'The Act', 'Advertisement', 'Applicant', 'Building', 'Canal Frontage', 'Commission', 'Council', 'Dam', 'Floodway', 'Gazettal Date', 'Incidental Development', 'Mean High Water Mark', 'Natural Ground Level', 'Owner', 'Place', 'Stabilised Canal Edge', 'Waterway Frontage', 'Vegetation'.

[71] 'Entry Statement' is used in cl 5.35.5. 'Prime Agricultural Land' is used in Policy (a) of cl 4.2.6.

[72] 'Dry Industry', 'Generating Works', 'Jetty and Mooring Envelope', 'Major Road Frontage', 'Retirement Village', 'Stabilised Surface of a Lot'. The term 'Communal and Cluster Farming' is also defined in Sch 1 without being used elsewhere, although Objective (i) of cl 4.2.6 identifies encouraging 'the development of cluster or communal farming' as an Objective of the Agriculture Zone.

[73] Items A31, A39, A46 A60, A73. The term is also used in items A2 A14, and A21, but in a context that clearly excludes a 'Discount Department Store' or 'Supermarket'.

[74] Item SP39 in Sch 3 (conditions 8, 14 and 15) and item 15 in Sch 14.

[75] 'Club', 'Community Centre', 'Recreation Establishment' and 'Tourist Accommodation' have definitions with exclusionary components similar to the definition of 'Shop'.

[76] Clause 23 of, and item 64 of Sch 4 to, TPS 20.

[77] Clause 22 of TPS 20 read with the definitions of 'Shop' and 'Discount Department Store' in Sch 1 to TPS 20.

[80] The material to be forwarded to the Minister was identified by regs 13, 18 and 19 of the Town Planning Regulations 1967 (WA), which were in force when Amendment 72 was made.

[81] Cooper Brookes (305) per Gibbs CJ.

[82] Cooper Brookes (310) per Stephen J.

[83] Cooper Brookes (321) per Mason and Wilson JJ. At 318 - 319, their Honours also referred to judges in the Federal Court referring to the result as 'capricious and unjust'.

[84] Cooper Brookes (306 - 307), (311 - 312). For Stephen J this was critical: see (310).

[85] Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [42], [150], [218] and cases there cited.

Development Act 2005

Reforms (No 4) (Planning) Act 2010

Planning and Development Act 1928

Development (Development Assessment Panels) Regulations 2011

Planning Regulations 1967

AUSTRALIAN UNITY PROPERTY LIMITED as responsible entity for the AUSTRALIAN UNITY DIVERSIFIED PROPERTY FUND -v- CITY OF BUSSELTON [2018] WASCA 38 (6 April 2018)

Citation : AUSTRALIAN UNITY PROPERTY LTD As Responsible Entity for the Australian Unity Diversified Property Fund -v- CITY OF BUSSELTON [2017] WASC 236

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247

Australian Education Union v Department of Education [2012] HCA 3; (2012) 248 CLR 1

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297

Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1991) 172 CLR 319

Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186

Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586, 592; [2000] UKHL 15; [2000] 2 All ER 109

Lacey v Attorney General (Qld) [2011] HCA 10; (2011) 242 CLR 573

Minister for Immigration v SZJGV [2009] HCA 40; (2009) 238 CLR 642

Queensland v Congoo [2015] HCA 17; (2015) 256 CLR 239

Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132

SZTAL v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936

Taylor v The Owners - Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

Wentworth Securities v Jones [1980] AC 74

AUSTRALIAN UNITY PROPERTY LIMITED as responsible entity for the AUSTRALIAN UNITY DIVERSIFIED PROPERTY FUND -v- CITY OF BUSSELTON [2018] WASCA 38 (23 March 2018)

At a glance

Court

Decision date

Before

Source

Judgment (152 paragraphs)

Appellants' submission as to the meaning of 'Shop' in the Zoning Table

Legislation Cited (5)

Cases Cited (33)

AUSTRALIAN UNITY PROPERTY LIMITED as responsible entity for the AUSTRALIAN UNITY DIVERSIFIED PROPERTY FUND -v- CITY OF BUSSELTON [2018] WASCA 38 (6 April 2018)