1. For the following reasons, I find that both cl 4.10.11(a)(i) and cl 4.10.11(d) are lawful provisions that are to be applied according to the ordinary meaning of their terms.
2. Firstly, there is no debate that a local planning scheme can include provisions that deal with the conservation of the natural environment within the scheme area, including the protection of natural resources as well as water. That question was asked and answered in Squarcini and is now made plain by items 4(2) and (3) in Sch 7 to the PD Act.
3. Secondly, it is beyond argument that the Water Quality Policy is a policy that, by its terms, is intended to be taken account of in land use planning decision-making, including the making or amendment of planning schemes, as well as in development control. It is also a policy that reflects the principles set out in SPP 2.3, a State planning policy made pursuant to Pt 3 of the PD Act that is specifically directed to managing the Jandakot groundwater resource.
4. I note here that I am required to have due regard to 'relevant planning considerations', including any State planning policy that may affect the subject matter of the application.[48]
5. In Zampatti v WAPC (Zampatti),[49] the Court of Appeal considered the meaning of the phrase 'relevant planning considerations' in the context of s 241(1) of the PD Act. Zampatti involved an appeal from a decision of the President of the Tribunal, on a review undertaken by a judicial member pursuant to s 244 of the PD Act. Kenneth Martin J stated as follows:
   1. The term 'relevant planning considerations' is not defined within the [PD Act]. But the phrase is manifestly of broad import and obviously would include a SPP.
   2. However, 'relevant planning considerations' would also encompass, in present circumstances, those local planning considerations of a character as are identified in Mr Graham's reasons as 'policy and statutory context which affects the subject land' [80] or, in the reasons of the President, as the relevant 'planning framework'.
   3. The wide phrase 'relevant planning considerations' used in s 241(1), may therefore readily extend to embrace potentially multiple planning considerations, in any given context.
6. That judicial reasoning is apposite here. It follows that I do not accept the Applicant's argument that the Water Quality Policy is not a 'planning policy'. Given that land use planning may encompass environmental considerations, in my view, it is well within DWER's remit to prepare and adopt a policy that is to inform land use planning decisions and thus, may properly be characterised as a 'planning policy' and therefore a 'relevant planning consideration'. Indeed, SPP 2.3 itself provides that it is to be read in conjunction with the Water Quality Policy.
7. Thirdly, there is nothing in the PD Act that would suggest that a local planning scheme clause in the nature of cl 4.10.11(a) is beyond power. Nowhere in Pt 5, or elsewhere, within the PD Act, is there a provision which would make it impermissible for a local planning scheme to include a provision that directly aligns the land use permissibility of a scheme zone with a policy that has been prepared to protect and manage groundwater resources. Section 69 of the PD Act provides that a local planning scheme may be made:

(a) with the general objects of making suitable provision for the improvement, development and use of land; and

(b) may include any or all of the provisions, powers or works referred to Sch 7.

1. Those words, which inform the scope and objects of a local planning scheme, are of broad import. They are not words of limitation.
2. The decision in Costa v Shire of Swan (Costa)[50] addressed the question as to what a 'town planning scheme' was for the purposes of the TPD Act, as well as what matters a planning scheme could address. Costa involved an application for a declaration by landowners that a development scheme, being a species of town planning scheme which levied development contributions from landowners for a new industrial estate in Malaga, was not a valid 'town planning scheme' for the purposes of the TPD Act. Moreover, the landowners' case was that such a scheme was tantamount to a tax on landowners and was therefore beyond power.
3. As to whether the scheme was a valid 'town planning scheme', having reviewed the relevant scheme-making provisions of the TPD Act, Olney J approached the question broadly and explained that, in his view, and without attempting to provide an exhaustive definition, a 'town planning scheme' was any:[51]

... programme of action with respect to any land, houses, buildings or other works and structures (which may be situated in any city, town, suburb or rural area) which has the general object of improving and developing such land etc to the best possible advantage.

1. In rejecting the argument that a planning scheme mandating development contributions from landowners was unlawful, Olney J explained that, provided a planning scheme was made in a manner that accorded to the requirements of the TPD Act, 'the scope for town planning schemes is as wide and diverse as the ingenuity of planners is able to contemplate'.[52] Olney J then explained:[53]

... whenever a question arises as to the validity of a scheme the sole consideration is to determine whether the scheme can be properly described as a town planning scheme as that term is understood within the context of the [TPD Act]. If an affirmative answer is obtained then the scheme has the force of law as if it were enacted within the [TPD Act].

1. In my view, the approach taken by Olney J in Costa is instructive. That is to say, so long as the scheme provision in question has been lawfully made, and falls within the subject matter, scope and purpose of the PD Act, it should be construed so as to give it its ordinary meaning.
2. In this case, from my review of the PD Act and, in particular, the purposes, objects and contents of local planning schemes there is nothing that would render cl 4.10.11 as being a provision that is beyond power that ought not be construed in accordance with its ordinary meaning. That meaning, by reason of cl 4.10.11(a)(i) is that land use permissibility in the Resource Zone is to be as set out in the Water Quality Policy and, by reason of cl 4.10.11(d), that land uses that are identified as incompatible in the Water Quality Policy are to be regarded as prohibited 'X' uses for the purposes of the Scheme.
3. Fourthly, the express purposes of the PD Act would seem to authorise a provision such as cl 4.10.11(a)(i). That is so because, the purposes of the PD Act are to both: (i) promote the 'sustainable use and development of land'; as well as to (ii) provide for an 'efficient and effective land use planning system'.[54]
4. As to the 'sustainable use and development of land', one of its three pillars of sustainability is the environment. As is now common knowledge, at the core of sustainability, is the need for decisions to meet the needs of the present generation, without compromising the ability of future generations to meet their own needs. Clause 4.10.11(a)(i) reflects the principles set out in both SPP 2.3 and the Water Quality Policy. Clause 4.10.11(d), in turn, seeks to align land use decision-making with the broader need to manage the water resource for the longer term.
5. The objective of SPP 2.3 is to, inter alia, maximise the long-term protection and management of groundwater, in particular, for public drinking water supply purposes. The groundwater protection principles set out in SPP 2.3 emphasise:

(a) the need to apply the precautionary principle in the context of land use decisions which pose a threat to the groundwater resource; and

(b) inter-generational equity (sustainable use), the notion that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations.

1. A local planning scheme provision that gives effect to a state-level policy focused on the management of land uses over a scarce natural resource, such as public drinking water, in my view, very much aligns with the purpose of the PD Act of promoting the sustainable use and development of land.
2. Moreover, such a planning system protects the public interest in managing what is a finite natural resource for the longer term. I have elsewhere observed that the question of public drinking water quality is a matter of public health which, of itself, warrants a precautionary approach being taken.[55]
3. I turn next to consider the statutory purpose of an 'efficient and effective land use planning system'. In my view, a local planning scheme provision that, in the context of land affecting a designated groundwater area from which is sourced public drinking water, aligns land use decision-making with the land use compatibility tables established by the State's environmental regulator (DWER), can be said to provide for an efficient and effective land use planning system.
4. Were it otherwise, and land use planning decisions were able to be made in a manner contrary to the Water Quality Policy, there is plainly a risk that planning decisions would result in the public drinking water resource being eroded and the quality of the resource damaged. In my view, a land use planning system that tolerates such risks could hardly be regarded as efficient, nor effective, from a natural resource management perspective.
5. Fifthly, there is nothing in TPS 3 itself which suggests that cl 4.10.11 needs to be read down or is otherwise in conflict with any Scheme provision. Indeed, the opposite is evident. I have set out above cl 1.7.5,[56] the effect of which is, relevantly, that SPP 2.3 prevails over the use class definitions set out in the Scheme. SPP 2.3 incorporates, and operates together with, the Water Quality Policy.
6. I have also explained the subclauses in cl 4.10 in some detail.[57] Clause 4.10 applies to all rural land in the City and includes a comprehensive set of provisions which, together, work to provide for rural activities and enterprises but, at the same time, protect the environment, including wetlands and groundwater resources.
7. In terms of land use permissibility in the Resource Zone, the zoning table expressly defers to cl 4.10.11. No inconsistency is evident in that arrangement. Moreover, the express objective of the Resource Zone is to protect and manage the underground water resource in the manner envisaged by SPP 2.3.
8. I note here that, in preparing and amending the Scheme, the PD Act requires the City to give due regard to SPP 2.3.[58] SPP 2.3 itself includes a presumption against development or land uses that are inconsistent with the priority areas and is to be read in conjunction with the Water Quality Policy. Clause 4.10.11 simply gives effect to the policy intent of SPP 2.3, which directly aligns the objectives of the Resource Zone.
9. Nor can I discern any inconsistency with a deemed provision. While the deemed provisions make it plain that a structure plan[59] and a local development plan[60] cannot bind a decision-maker, there is no express, nor inferred, prohibition on other instruments having this effect.
10. Indeed, cls 67(1)(a) and (b)(i) of the deemed provisions expressly contemplate that some development well may be an 'X' use or otherwise unable to comply with a requirement of the Scheme, such that it cannot be approved. It is trite that the control and regulation of land uses, and the separation of various land uses goes to the very foundation of land use planning, in particular development control.
11. It seems to me, as a matter of planning principle, entirely appropriate that a local planning scheme has the capacity to make certain land uses incapable of approval in some, or all, zones. Clause 4.10.11(d) is simply a manifestation of such a provision. The fact that the land use incompatibility for the Resource Zone is referenced from an instrument made outside of the Scheme does not alter the result. There is no prohibition on the Scheme being drafted in such a manner.
12. Indeed, it is not uncommon for planning schemes to incorporate and utilise content from instruments that sit well outside the PD Act. For example, Div 2 of Pt 6 of the model provisions includes a number of defined land use terms. Those defined terms incorporate definitions from inter alia the Racing and Wagering Western Australia Act 2003 (WA), the Liquor Control Act 1988 (WA) and the Mining Act 1978 (WA). The point being, there is no reason why TPS 3 is unable to refer to, and rely on, content from the Water Quality Policy.
13. Finally, and most critically, the words of TPS 3, including cls 4.10.11(a)(i) and (d), have the force of law.
14. In Scutti, the Court of Appeal was dealing with a question as to whether land that was identified in a structure plan as 'public open space' (POS) was injuriously affected within the meaning of s 174 of the PD Act.
15. Section 174 relevantly provided that land is deemed to be injuriously affected by reason of the making or amendment of a planning scheme, if the land is reserved (whether before or after the coming into operation of this section) for a public purpose under the planning scheme.[61]
16. Application was made to the Tribunal for a determination as to whether the land was injuriously affected. The Tribunal, consistent with the case put by the City, found that the land was not injuriously affected.[62] The matter proceeded on appeal to the General Division of the Supreme Court where, again, the City was successful.[63]
17. On appeal from the General Division, the Court of Appeal ultimately found that the relevant structure plan imposed a 'classification' on the POS land, by reference to a reserve (a Local Reserve) for the purposes of the local planning scheme.
18. At the heart of the dispute in Scutti was whether the local planning scheme provisions set out below, had the effect of injuriously affecting the land that was identified as POS in the structure plan:

9.8.2 Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:

1. the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and
2. provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area.

9.8.3 Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:

1. where land is classified as a Local Authority Reservation, the rights, provisions and procedures, and the obligation of the Council in regard to compensation shall apply as if the land was correspondingly reserved under the Scheme[.]

1. What is relevant for present purposes is that the scheme provisions had the force of law, as if enacted by the PD Act. The Court of Appeal concluded that the meaning and effect of the relevant clauses of the scheme, which required the land to be treated as if it were reserved under the planning scheme, did not operate to bring about a direct amendment to the scheme but, nevertheless, required the planning authority to treat the land as if it were reserved for a public purpose.
2. While the structure plan indicated other possible uses could be approved on the land, the potential for such uses remained subject to the mandatory relevant consideration that the land had been classified as a reserve for POS. The mere potential for other uses to be approved, did not negate the clear meaning of the scheme clauses that required the land identified as POS to be treated as if it were reserved under the scheme.[64] The Court of Appeal stated:[65]

The classification of the appellants' land as a reserve by [the structure plan] does not directly have the force of law, because the land is not directly reserved by DPS2, or by an amendment to DPS2. However, the requirement that the land be treated as if it were reserved under DPS2, does have the force of law.

1. Accordingly, the Court of Appeal was satisfied that the land in question was injuriously affected 'by the making or amendment of a planning scheme' on the basis that it had, in practical terms, been classified and set aside as a reserve for POS.
2. The Court of Appeal's analysis of the effect of the scheme provisions is, in my view, apposite to the clauses under consideration in this matter. That is, as the Court of Appeal found in Scutti, both cls 4.10.11(a)(i) and (d) are required to be read and applied 'as if they were enacted' by the PD Act.
3. That is to say, the words in cl 4.10.11(a)(i), which state that the use and development of land in the Resource Zone 'shall' be in accordance with the Water Quality Policy have the force of law. The use of the word 'shall' require it to be interpreted as not a discretionary, but as an imperative, requirement.[66]
4. Likewise, the words in cl 4.10.11(d), the effect of which is that a land use designated as incompatible in the Water Quality Policy is to be regarded as an 'X' use in the Resource Zone, have the force of law.
5. Contrary to the Applicant's submissions, cl 4.10.11(d) is not a Henry VIII clause. This is because cl 4.10.11(a) does not operate, or purport to operate, so as to bring about a direct amendment to TPS 3, such that the Water Quality Policy is to be read as part of the Scheme. Rather, by their terms, these provisions clearly and unambiguously require the decision­maker to treat a land use which the Water Quality Policy identifies as an incompatible use, as a prohibited use in the Resource Zone.
6. The clear ratio decidendi of the Court of Appeal in Scutti, and one which I am bound to follow, is that the words of a planning scheme have the force of law and apply according to the ordinary meaning of their terms.

Conclusion on the effect of cls 4.10.11(a)(i) and (d)

1. I have set out above why, based on the subject matter, scope and purpose of the PD Act, I do not find that either cls 4.10.11(a)(i) or (d) to be repugnant, nor inconsistent with, the purpose of the PD Act. I am also satisfied that TPS 3 is authorised to include provisions which deal with the protection and management of the environment and natural resources such as groundwater.
2. Reading and applying cls 4.10.11(a)(i) and (d), in the context of TPS 3 read as a whole, I am satisfied that land uses within the Resource Zone are required to be consistent with the Water Quality Policy. These clauses have the force of law, and their ordinary meaning has the effect that a land use identified as incompatible in the Water Quality Policy, is to be treated as a prohibited use in the Resource Zone.

1. Having constructed the relevant provisions of the Scheme, I turn now to address the substantive question put forward for determination by the parties.[67] That issue is whether the Proposed Development is capable of approval under TPS 3. Resolution of that question requires the Proposed Development to be classified for the purposes of TPS 3.
2. As I have already set out, it is an agreed fact that the Proposed Development comprises:

(a) the parking of 17 x 8-tonne rigid trucks during the evening;

(b) the parking of 17 x standard B99 vehicles during the day; and

(c) a 2,000m2 hardstand area and vehicle turning bay (constructed on the eastern side of the Land).

1. Appendix A of the Water Quality Policy defines a 'transport depot' as per the definition contained in the model provisions. That definition is as follows:

transport depot means premises used primarily for the parking or garaging of 3 or more commercial vehicles including:

(a) any ancillary maintenance or refuelling of those vehicles; and

(b) any ancillary storage of goods brought to the premises by those vehicles; and

(c) the transfer of goods or persons from one vehicle to another.

1. Table 2 of the Water Quality Policy identifies a 'transport depot' as a 'commercial' land use. A 'transport depot' is an incompatible use in a P2 area.
2. The Proposed Development involves 17 B99[68] vehicles driven to the Land each day by people who live locally. Those people then each leave their (up to) 8-tonne trucks on the Land overnight.[69] That is to say, the Proposed Development allows local owners to store their trucks on the Land in the evening and to collect them for use during the day, following which they are returned.
3. It is therefore plain that the Proposed Development is a development that involves the 'parking or garaging' of up to 17 8-tonne rigid trucks during the evening, and the 'parking' of 17 standard B99 vehicles during the day. It also encompasses the transfer of drivers between their B99 vehicles and their trucks.
4. I am therefore satisfied, and I find, that the Proposed Development is a 'transport depot' for the purposes of the Water Quality Policy, a use that is incompatible in a P2 area. By reason of cl 4.10.11(d), the Proposed Development involves a use that is required to be treated as an 'X' use in the Resource Zone.
5. By reason of cl 67(1)(a) of the deemed provisions, the Proposed Development is incapable of approval. In its review jurisdiction, the Tribunal has the same functions and discretions as those exercisable by the decision-maker.[70] Accordingly, there is no capacity for the Tribunal to approve the Proposed Development.

1. For the foregoing reasons, I find that the Proposed Development is a prohibited use which is incapable of approval under TPS 3.
2. The parties should confer on the orders necessary to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] The 'deemed provisions' being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) and given effect by s 257B of the PD Act.

[5] Which were referred to as the 'general provisions'. Refer Explanatory Memorandum, Planning and Development Bill 2005 (WA), page 33.

[6] Section 256 was subsequently amended by s 74 of the Planning and Development Amendment Act 2020 (WA) to provide that the Governor, not the Minister had power to make the regulations, 'on the recommendation of the Minister'.

[8] PD Act, s 257A(3). These provisions were similar in effect to the 'Model Scheme Text' contained in reg 11(1) read with Appendix B to the Town Planning Regulations 1967 (WA).

[9] PD Act, s 257B(3); see also Puma Energy Australia and City of Cockburn [2016] WASAT 36 (2016) 89 SR (WA) 1 [46], [47].

[12] PD Regs, reg 29 (local planning schemes), reg 45 (complex amendments), reg 55 (standard amendments) and reg 60 (basic amendments).

[17] Planning codes are made pursuant to Pt 3A of the PD Act. See also the Planning and Development (Planning Codes) Regulations 2024 (WA).

[19] Squarcini and Milino Pty Ltd v State Planning Commission (unreported SCt of WA, (Scott J), Library No 960200, 17 April 1996) (Squarcini).

[20] Marford Nominees Pty Ltd v State Planning Commission (unreported, SCt of WA, (Murray J), Library No 960047, 1 February 1996).

[22] Together with the Planning and Development (State Planning Policies) Regulations 2024 (WA). The equivalent of s 5AA is now found in s 27 of the PD Act.

[25] City of Gosnells v Reid [2024] WASCA 155 [147].

[26] Australian Unity Property Limited as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333 [77] - [91].

[29] State Planning Policy 2.3 Jandakot Groundwater Protection (SPP 2.3).

[34] Which includes the Rural Zone, the Rural Living Zone and the Resource Zone.

[45] R v Secretary of State for Social Security; Ex parte Britnell [1991] 1 WLR 198, 204.

[46] Scutti v City of Wanneroo [2018] WASCA 175; (2018) 53 WAR 417 (Buss P, Murphy JA, Allanson J).

[49] Zampatti v WAPC [2010] WASCA 149; (2010) 176 LGERA 150.

[50] Costa v Shire of Swan [1983] WAR 22, 24.

[55] Al-Boraich and City of Swan [2020] WASAT 163 [104].

[59] Prepared pursuant to Pt 4 of the deemed provisions; refer cl 27.

[60] Prepared pursuant to Pt 6 of the deemed provisions, refer cl 56.

[62] City of Wanneroo v Scutti [2016] WASAT 102.

[63] Scutti v City of Wanneroo [2017] WASC 70; (2017) 221 LGERA 144 (le Miere J).

[66] Interpretation Act 1984 (WA), s 56(2).

[67] Applicant's Statement of Preliminary Issues, 10 September 2024.

[68] A B99 vehicle, as I understand it, is, in effect, a passenger vehicle which measures 5,200 millimetres in length and is 1,940 millimetres wide.

[70] State Administrative Tribunal Act 2004 (WA), s 29(1).