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[2010] WASAT 79
General information, not legal advice.
State Administrative Tribunal (WA)
2010-06-03
Judge J
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : CALTEX AUSTRALIA PETROLEUM PTY LTD and TOWN OF VINCENT [2010] WASAT 79
FURTHER WRITTEN SUBMISSIONS RECEIVED 17 FEBRUARY 2010 AND 24 FEBRUARY 2010
Planning - Preliminary question - Jurisdiction of the Tribunal - Tribunal to consider the limits of its own authority when standing in the shoes of a decisionmaker - Source of the Planning Commission's power to approve development - Power of local government under delegation from Planning Commission - Construction of the Metropolitan Region Scheme Construction of the delegation by the Planning Commission
Interpretation Act 1984 (WA), s 5
Metropolitan Region Scheme, cl 1, cl 2, cl 3, cl 3.1(1), cl 4, cl 5, cl 12(1), cl 13, cl 15, cl 16, cl 16(1), cl 16(2), cl 16(3), cl 18, cl 19, cl 20, cl 24, cl 28, cl 29, cl 29(1), cl 29(1)(a), cl 29(1)(b), cl 29(2), cl 30, cl 30(1), cl 31, cl 33(1), cl(a), cl(b), Pt II, Pt III, Pt IV, Div 1, Div 2, Div 3, Sch 1
AIB Group (UK) Ltd v Martin [2001] EWCA Civ 1750; [2002] 1 WLR 94
Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316
Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60
Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658; (2004) 138 FCR 181
Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom [2006] HCA 50; [2006] 228 CLR 566
Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Adams and the Tax Agents' Board (1976) 12 ALR 239
1 On 18 August 2008, Caltex lodged an application with the Town of Vincent for planning approval for a development on land within the Town. The land is, in part, subject to a reservation for other regional roads, under the Metropolitan Region Scheme. On 25 August 2009, the Town refused approval for the development in accordance with its Town Planning Scheme, associated planning policies and the Metropolitan Region Scheme. In refusing Caltex's application under the Metropolitan Region Scheme, the Town purported to act as the delegate of the Western Australian Planning Commission.
2 Caltex sought a review of the Town's decision to refuse approval of the development application. The first ground of Caltex's application for review was its contention that the Town did not have power to determine Caltex's application for planning approval pursuant to the Metropolitan Region Scheme. The Tribunal expressed this first ground as a question to be determined as a preliminary issue in the following terms: 'whether the respondent has power under delegation to determine the development application made under the Metropolitan Region Scheme'.
3 The Tribunal determined that cl 30(1) of the Metropolitan Region Scheme contained an express power for the Planning Commission (or its delegate) to approve, refuse to approve, or to approve subject to conditions, the commencement of a development on reserved land. The Tribunal found that that power had been delegated to the Town, by virtue of a Notice of Delegation made by the Planning Commission to local governments including the Town pursuant to s 16 of the Planning and Development Act 2005 (WA). The Tribunal therefore answered the preliminary question 'yes'.
4 The Tribunal listed Caltex's review application for a directions hearing to programme a final hearing at which the Tribunal could determine whether to affirm, set aside or vary the Town's decision to refuse planning approval.
5 In coming to its decision, the Tribunal considered its jurisdiction to deal with the preliminary issue. It determined it had jurisdiction to do so, because standing in the shoes of the Town, it had jurisdiction to determine the limits of its own authority under the Delegation, the Planning and Development Act 2005 (WA) and the State Administrative Tribunal Act 2004 (WA).
6 Caltex Australia Petroleum Pty Ltd is the registered proprietor of a property at 317 321 Vincent Street, Leederville, comprising Lots 12 14 on Plan 880, Certificate of Title Volume 1051 Folio 724 (the Land). The land is located within the municipality of the Town of Vincent.
7 Part of each lot is reserved under Pt II of the Metropolitan Region Scheme (MRS) for the purpose of 'Other Regional Roads' (ORR reservation). The balance of each lot is zoned 'District Centre' under the Town of Vincent Town Planning Scheme No 1 (TPS).
8 The Land is currently the site for a service station. Caltex wants to demolish the existing service station and build a new service station and signage on the Land (the Development).
9 On 18 August 2008 Caltex lodged a Form 1 Application to Commence Development (Development Application) with the Town. On 25 August 2009 the Town decided to refuse planning approval for the Development (the Town's decision). It advised Caltex of its reasons in a letter dated 1 September 2009. The reasons for the Town's decision were:
(i) the Development is not consistent with the orderly and proper planning and preservation of the amenities of the locality;
(ii) the noncompliance with the [MRS ORR] reservation as the proposed Development is proposed to be constructed within the [ORR] reservation; and
(iii) the proposed layout of the service station is not consistent with future planning of the adjoining land comprising 'The Avenue' and Town owned carpark, which will severely compromise access for tankers accessing the site via 'The Avenue' and exiting the site via Vincent Street, as proposed, due to the proposed future planned changes to 'The Avenue' and adjoining Town owned land.
10 Planning approval for the Development was required under both the MRS and the TPS. The refusal of the Development Application by the respondent was made in accordance with the Town's TPS, associated planning policies, and the MRS.
11 In refusing the Development Application under the MRS, the Town purported to act as the delegate of the Western Australian Planning Commission (WAPC) under a Notice of Delegation by the WAPC gazetted on 19 December 2008 (the Delegation). A copy of the Delegation is set out in Appendix 1 to these reasons.
The preliminary issue and the issues raised by the preliminary issue
12 Caltex seeks a review of the Town's decision. Caltex contends that the Town did not have power, pursuant to the Delegation, to determine the Development Application under the MRS. Caltex contends that it was the WAPC which had the power to make that decision and the Town should have referred the Application for planning approval to the WAPC. In addition, Caltex contends that the correct and preferable decision is that the Development should be approved because all that is proposed is the replacement of an existing service station with a new service station, and that no change of use is involved, that the Development will only involve minor works on that part of the land subject to the ORR reservation and that the Development is consistent with planning policies applicable to the Leederville Town Centre, with orderly and proper planning and with the objectives of the TPS.
13 On 30 October 2009, Senior Member Parry ordered that the first ground of Caltex's application for review be determined as a preliminary issue. The preliminary issue was expressed in the Senior Member's Order in the following terms:
whether the Respondent has power under delegation to determine the development application made under the [MRS].
14 The parties agreed a statement of facts for the purpose of the determination of the preliminary issue. Those facts, together with aspects of the documents agreed between the parties for the purposes of the preliminary issue, are reflected in the factual background set out above.
15 The Tribunal invited the WAPC to make submissions on the preliminary issue, and the WAPC did so.
16 Caltex submitted that if its argument on the preliminary issue was accepted, the appropriate course would be for the Tribunal to refer that part of the Town's decision which pertained to its purported refusal to approve the commencement of the Development, under the MRS, to the WAPC, and to remit the remainder of the Town's decision to the Town for redetermination.
17 The WAPC's delegation of its functions to the Town was made pursuant to the power to delegate in s 16 of the Planning and Development Act 2005 (WA) (PD Act). Subsection s 16(1) permits the WAPC, by resolution, to delegate to a person or body referred to in s 16(3) 'any function of the Commission under this Act or any other written law, except this power of delegation'. The persons and bodies referred to in s 16(3) include a local government. The term 'functions' in s 16(1) 'extends, without limitation or restriction, to all of the powers, privileges, authorities, discretions, duties and responsibilities vested in or imposed on the Commission by this Act or any other written law'. It was not in dispute that the power of delegation in s 16(1) is a plenary power, extending to all of the functions of the WAPC, other than the power of delegation itself, and nor was there any suggestion that the WAPC lacked the power to delegate to the Town its function of approving (or refusing approval for) the commencement and carrying out of the Development on the Land. The question raised by the preliminary issue was whether the WAPC had in fact delegated that function.
18 Caltex submitted that in so far as the Land was subject to the ORR reservation, the power to grant an approval to commence the development of the Land was given to the WAPC under Pt II of the MRS and specifically by cl 19 of the MRS. Counsel for Caltex submitted that the powers and functions delegated under the Delegation were the functions of the WAPC under Pt IV of the MRS, and did not include the power to grant an approval under Pt II of the MRS.
19 Counsel for the Town submitted that the terms of the Delegation made clear that the power of the WAPC which was delegated to local authorities under the Delegation included the power to grant approval, or to refuse to grant approval, for the commencement of a development on land which is subject to an ORR reservation. Counsel for the Town submitted that the reference in the Delegation to the determination, 'in accordance with Pt IV of the MRS', of the applications referred to in the Delegation merely conveyed that compliance was required with the process set out in Pt IV of the MRS for dealing with applications for development.
20 Counsel for the WAPC expressed agreement with the submissions made by counsel for the Town. However, in the alternative, she submitted that the power to grant an approval for a development of land subject to an ORR reservation was given to the WAPC under cl 30 of the MRS. The power was, therefore, the subject of the Delegation because the Delegation referred to the 'determination, in accordance with Part IV', of applications for the commencement of a development on land which is subject to an ORR reservation.
21 For the reasons set out below, I am unable to accept Caltex's submissions and I ultimately prefer the alternative submission made by counsel for the WAPC.
22 In order to determine whether the Town was acting pursuant to a delegation of the WAPC's power under the MRS to approve (or in this case, to refuse approval for) the development of the Land, it is necessary first to identify the source of the WAPC's power under the MRS to approve, or refuse to approve, the commencement of the Development on the Land. Once that source of power is identified, it will then be necessary to construe the Delegation itself, so as to determine whether the functions delegated to the Town under the Delegation actually included the WAPC's power to approve, or to refuse approval for, the commencement of the Development on the Land.
23 In Caltex's application for review the preliminary issue was expressed as a contention that the Town did not have power, pursuant to the Delegation, to determine the development application under the MRS. Expressed in that way, the preliminary issue bears some similarity to an application for judicial review of the Town's decision. At the outset of the hearing of the preliminary issue I invited submissions as to whether the Tribunal has jurisdiction to deal with an issue of that kind. Accordingly, these reasons deal with the following issues:
Whether the Tribunal has jurisdiction to deal with the preliminary issue
24 The parties, and the WAPC, submitted that the Tribunal has jurisdiction to deal with the preliminary issue. I accept that the Tribunal does have jurisdiction to consider the preliminary issue, although with a small qualification, but as my reasons for that conclusion differ slightly from those advanced by the parties and the WAPC it is appropriate to briefly set out those reasons.
25 The present application is one which arises in the exercise of the Tribunal's review jurisdiction, pursuant to s 252 of the PD Act and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In the exercise of its review jurisdiction, the Tribunal conducts a merits review. That is, it stands in the shoes of the original decision maker, determines the facts following a hearing de novo and, within the legal framework of the enabling Act (and any other applicable legislation), is charged with reaching the correct and preferable decision at the time of the decision on the review: s 27 of the SAT Act.
26 The SAT Act draws a clear distinction between judicial review, and the merits review which the Tribunal exercises in its review jurisdiction: s 19 of the SAT Act. It is clear from the terms of the SAT Act as a whole, and s 19 in particular, that the Tribunal does not have jurisdiction to engage in judicial review and to pronounce, with any legal effect, on the validity of the acts of the decision makers whose decisions it is called upon to review.
27 As I have noted above, in its application Caltex contended that the Town did not have delegated power to make the decision the subject of the present application. That appears tantamount to a contention that the Town acted beyond the scope of its power in making the decision under review. The Tribunal could not pronounce on the validity of the Town's decision, in reliance on the Delegation, with any legal effect.
28 However, the manner in which the question is framed in the preliminary issue is slightly different to the contention put by Caltex. The preliminary issue raises the same issue in a somewhat less direct way, namely whether the Town had power under the Delegation to determine whether approval should be granted for the Development Application.
29 Given that the Tribunal's role is to stand in the shoes of the Town, and to reach the correct and preferable decision, in my view the preliminary issue should effectively be understood as raising the question whether the Tribunal itself, standing in the position of the Town as the original decision maker, has power under the Delegation to grant approval, or to refuse approval for, the commencement of the Development. Approached from that perspective, no issue arises of the Tribunal engaging in an exercise of purported judicial review.
30 The Tribunal (like the Town in the first instance) is required to consider the limits of its own authority to determine the Development Application in order to ensure that it does not exceed the authority given to it by the PD Act and the SAT Act. The principle was stated by Brennan J in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242 as follows:
An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.
...
Blackburn J, sitting in an administrative jurisdiction in Re Cilli's Objection (1970) 15 FLR 426 at 428 ... noted that an administrative body 'must satisfy itself that all its proceedings are in accordance with the law. It must therefore receive and consider, whenever the point is taken, an argument that it has no jurisdiction. To say that is, in truth, to say no more than that it must at all times act lawfully.
When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority upon it, the will of the legislature expressly conferring that authority would, at least for a time, be overridden. ... A consequence of such gravity throws doubt upon the proposition that an administrative body ought to consider the constitutional validity of a statute affecting its power.
31 The same principle was referred to, and applied, by his Honour Deputy President Judge Chaney (as he then was) in Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 at [21]:
Where a party raises an issue as to whether, under the enabling legislation, the original decision-maker had any authority to make the relevant decision, the Tribunal must necessarily decide, in the sense of forming an opinion, the question of whether or not any authority to make the decision exists. As the parties agreed, that proposition is supported by the conclusions expressed in Re Carey; Ex parte Exclude Holdings Pty Ltd and Ors [2006] WASCA 219 at [111] - [115] (Martin CJ, Wheeler J agreeing).
32 I respectfully agree with those observations. Accordingly, in dealing with the preliminary issue in this case, the Tribunal is engaged in the task of forming an opinion as to whether the Tribunal, standing in the shoes of the Town, and hearing the Development Application de novo, would have authority to make the decision which is the subject of the review application.
The source of the WAPC's power under the MRS to approve, or refuse approval for, the commencement or carrying out of the Development on the Land
33 The MRS was made under the Metropolitan Region Town Planning Scheme Act 1959 (WA) which has since been repealed, but the MRS is continued in force by s 33(1)(a) of the PD Act. Paragraph 33(1)(b) of the PD Act provides that the MRS 'has effect as if it were enacted by this Act'. In other words, by virtue of s 33(1)(b) of the PD Act the MRS is treated as subsidiary legislation made under the PD Act. The MRS also falls within the definition of 'subsidiary legislation' in s 5 of the Interpretation Act 1984 (WA) which includes any region planning scheme. Accordingly, the ordinary principles relating to the interpretation of legislation which apply to the interpretation of subsidiary legislation are also applicable to the MRS.
34 At the outset, three observations may be made about the MRS. The first is that, as is explained below, the meaning of a number of the clauses in the MRS is far from clear. The second observation is that the MRS has been amended on numerous occasions. Perhaps that accounts for some of the ambiguity in its terms. Thirdly, there is an acknowledgement in the MRS that the functions of the WAPC may be delegated to other persons or bodies pursuant to s 16 of the PD Act (see, for example, the express reference to that possibility in cl 29 and cl 30). However, some clauses in the MRS expressly advert to that possibility, while others are silent about it, which adds to the ambiguity in the meaning of its clauses.
35 These observations bring to mind an approach to the interpretation of subsidiary legislation which has been taken in a number of cases. Pearce and Argument in Delegated Legislation in Australia, 3rd ed, 2005 at [30.2] note that the approach was outlined by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180. His Lordship was dealing with the interpretation of regulations made under the Factories Act 1937 (UK) relating to the use of scaffolding, ladders and other such equipment. He stated (at 183):
I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry ... . They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament ... difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.
36 That same approach has been applied in a number of Australian cases, including Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 at 329 (Stone J) and Kozel v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 658; (2004) 138 FCR 181 at 187 (Ryan J).
37 Although the factual context of his Honour's remarks was different from the factual context in the present case, in my view the tenor of those remarks namely to focus on practical considerations relating to the operation of the instrument in question, and to avoid a meticulous comparison of the language of its provisions is apt in the present context.
38 The issue which emerged in submissions was whether the power to approve, or in this case to refuse to approve, the Development Application derived from Pt II or Pt IV of the MRS.
39 I note for completeness that Pt III of the MRS does not apply to the Land in so far as it is subject to an ORR reservation. Clause 24 of the MRS, which is located within Pt III of the MRS, requires that the approval of the responsible authority be obtained for the development of land within areas zoned under Pt III, and specifies when approval is not required for the development of such land. (The 'responsible authority' is either the WAPC, or 'such other authority as the [WAPC] delegates to be the responsible authority under s 16 of the PD Act': cl 5 of the MRS.)
40 Clause 24 also makes clear, however, that approval under Pt III of the MRS does not exempt the person to whom the approval is given from any other requirement under any other law to obtain permission or approval for development on the land. To the extent, then, that approval of the Development, in so far as the Land is subject to the ORR reservation, is required under other parts of the MRS, the requirement under the MRS to obtain approval for the development remained applicable.
(b) Is Part II of the MRS the source of the WAPC's power to grant approval, or to refuse approval, for the commencement of the Development on the Land?
41 Part II of the MRS is headed 'Reserved Land'. 'Reserved land' is defined in cl 3(1) of the MRS to mean land reserved for a purpose under the MRS. The land is subject to an ORR reservation under the MRS (see cl 12 and item (j) of Table 1 to cl 12 in the MRS).
42 Clause 13 of the MRS, which is in Div 1 of Pt II, contains a prohibition on commencing or carrying out any development on reserved land, other than the erection of a boundary fence, without first applying for and obtaining the written approval of the WAPC to do so. The word 'development' is defined in s 4 of the PD Act to include 'any demolition, erection, construction, alteration of or addition to any building or structure on the land'. As the Land is reserved land, cl 13 applies to the development of the Land. However, cl 13 does not contain a power to grant (or refuse) approval to commence a development, but simply prohibits commencing or carrying out a development on reserved land, except with the prior written approval of the WAPC.
43 Division 2 of Pt II of the MRS is headed 'reserved land owned by or vested in a public authority' and subclauses 16(1) and (2) deal with developments on land of that kind. As the Land is privately owned, it is not subject to cl 16 of the MRS.
44 Division 3 of Pt II of the MRS is headed 'Reserved Land Not Owned by or Vested in a Public Authority'. Division 3 of Pt II comprises three clauses: clauses 18 20. Clause 18 applies to reserved land that is not owned by or vested in a public authority. Clauses 19 and 20, which also fall in Div 3, appear to pertain to land of the same kind. Accordingly, the Land is subject to Div 3 of Pt II of the MRS.
46 Clause 18 of the MRS thus constitutes a prohibition on commencing or carrying out any development on reserved land that is not owned by or vested in a public authority, except with the written approval of the WAPC. However, cl 18 operates 'except as provided in clauses 13 and 16'. Given the similarity in the terms of cl 13 and cl 18, it appears that the exception for what is provided in cl 13 means that the erection of a boundary fence, even on reserved land, may be carried out without the prior written approval of the WAPC. The exception to cl 18 for what is provided in cl 16 appears, at first blush, to be anomalous. As cl 16(1) and cl 16(2) apply to 'reserved land owned by or vested in a public authority', and cl 18 applies to land which is not owned by or vested in a public authority it is thus not immediately apparent how there could be any intersection between cl 16 and cl 18. However, 'reserved land owned by or vested in a public authority' is defined in cl 16(3) to include 'reserved land in relation to which a public authority has an easement, right of way, right of occupation, or any other interest or right, privilege or concession'. The possession of an interest of this kind by a public authority in respect of land which is privately owned may explain the relevance of the exceptions in cl 16 to development applications for land which is subject to cl 18. The exceptions in cl 13 and cl 16 are not presently relevant.
47 Although cl 18 of the MRS clearly prohibits a development on privately owned reserved land without the WAPC's approval, cl 18 does not expressly confer a power on the WAPC to grant approval, or refuse to grant approval, for the commencement of a development on reserved land.
48 Counsel for Caltex submitted that the power to grant approval, or to refuse approval, for the commencement of a development on reserved land was given to the WAPC under cl 19 of the MRS. I am unable to accept that submission. Clause 19 does not contain any express grant of power to approve, or to refuse to approve, the commencement of a development. Clause 19 of the MRS alludes to the fact that the WAPC may give approval for a development and confirms that that approval may be subject to conditions. However that does not constitute an express grant of power to give that approval or impose those conditions. In order to conclude that cl 19 gives the WAPC the power to grant approval, whether with or without conditions, it would be necessary to imply a power into cl 19, or to read additional words into that clause. For the reasons set out below, I do not consider that such a course is warranted, having regard to the MRS as a whole, and to cl 30(1) in particular.
49 For completeness I note that cl 20 of the MRS does not contain a power for the WAPC to approve, or to refuse to approve, the commencement or carrying out of a development on reserved land. Clause 20 deals with the consequences which follow from a refusal by the WAPC of such approval, or by the grant of approval on conditions which are unacceptable to the owner, with the result that the land is injuriously affected, and the circumstances in which compensation may be payable to the owner of the land in that situation.
50 Accordingly, none of the clauses in Div 3 of Pt II of the MRS contain an express grant of power to the WAPC to grant approval for the Development on the Land.
51 There is, however, one aspect of cl 19 which might be seen to support the view that Div 3 does contain such a grant of power. The opening words of cl 19 refer to 'the approval of the [WAPC] given under this Division' (emphasis added). On one view, the inclusion of these words suggests that within Div 3 of Pt II there exists a power for the WAPC to grant an approval. If cl 19 is construed in that way, however, a difficulty arises. The terms of cl 19 appear to contemplate that the grant of the power to give approval exists independently of cl 19 itself. If that grant of power is nevertheless found within Div 3 of Pt II that leaves only cl 18 and cl 20, and as I have explained above, the ordinary and natural meaning of the words in those clauses does not permit the conclusion that they give the WAPC the power to grant approval, or to refuse to grant approval, for the commencement or carrying out of a development.
52 However, an alternative construction of the opening words in cl 19 is open, namely that the reference to 'the approval of the Commission given under this Division' refers to the approval which cl 18 confirms is required for the commencement or carrying out of a development on reserved land. That construction is consistent with the fact that the subject matter of cl 19 namely the confirmation that conditions may be imposed on the approval for development - only has relevance in the event that an approval is granted. Thus, rather than referring to the existence of a power to grant the approval which is located within Div 3 of Pt II, the opening words of cl 19 simply provide a link between the requirement for approval (which is referred to in cl 18) and the confirmation that that approval, if it is granted, may be subject to conditions (as described in cl 19).
53 In my view, the latter construction of cl 19 is to be preferred. In construing legislation (including subsidiary legislation) it is necessary to read the legislation as a whole, and to construe its terms in light of that broader statutory context: see Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 385 [80] (McHugh, Gummow, Kirby and Hayne JJ). For the reasons set out below, I have reached the conclusion that there exists within Pt IV of the MRS an express grant of power to the WAPC to grant or refuse approval for the commencement of a development, including a development on reserved land.
(c) Part IV of the MRS: the source of power for the WAPC to approve, or refuse approval for, the Development on the Land
54 The alternative source of the power of the WAPC to grant an approval, or to refuse to grant an approval, for the development of land lies in cl 30(1) of the MRS. It is convenient to set out that subclause in full:
The [WAPC] or a local authority exercising the powers of the [WAPC] so delegated to it under the [PD Act] may consult with any authority that in the circumstances it thinks appropriate; and having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality may, in respect of any application for approval to commence development, refuse its approval or may grant its approval subject to such conditions if any as it may deem fit.
55 Clause 30(1) thus contains an express power for the WAPC (or its delegate) to approve, refuse to approve, or to approve subject to conditions, the commencement of a development.
56 The next question is whether this power applies in respect of applications for the development of reserved land. Three considerations support the conclusion that it does. First, cl 30 permits the WAPC to grant or refuse approval for any application for approval to commence development. There is no suggestion that the power is limited to developments on land of a certain kind. Secondly, cl 30(1) expressly refers to the purpose for which land is reserved under the MRS. At the same time, however, cl 30(1) also refers to other matters which appear to be irrelevant to the grant or refusal of approval to commence a development on reserved land, such as the requirement that regard be had to the purpose for which the land is zoned under the MRS. However, I accept the submission of counsel for the WAPC that cl 30 refers to matters relevant to developments on zoned land because the clause applies to all applications for development which are referred to in the MRS, including applications for the development of reserved land and of zoned land.
57 Thirdly, broader contextual considerations also support the conclusion that cl 30 applies to reserved land. Clause 30(1) is located within Pt IV of the MRS which is headed 'Development'. Broadly speaking, the clauses in this Part of the MRS set out the process by which applications for development are made, considered, approved or refused, and by which decisions on such applications may be appealed. Many of the clauses within Pt IV deal with applications for the commencement of a development on reserved land and for the commencement of a development on zoned land: see, for example, cl 28, cl 29 and cl 31. Clause 33(1) of the MRS provides a right of appeal to the Minister, but only in respect of a refusal to approve the development of land zoned under Pt III of the MRS. On its face that might be viewed as militating against the conclusion that cl 30 applies to reserved land. However, that conclusion lacks force when it is recalled that a right of review of a decision made under the MRS to refuse approval for the commencement of a development is also granted by s 252 of the PD Act.
58 If cl 30 is the source of the WAPC's power to approve or refuse approval to commence a development on reserved land (as well as other land subject to the MRS), that raises a question about the relationship between cl 30 on the one hand, and cl 18 and cl 19 of the MRS on the other hand. In my view, in so far as cl 18 refers to the requirement to obtain the WAPC's approval before commencing the development of reserved land, it refers to the power of the WAPC to grant that approval pursuant to cl 30(1) of the MRS.
59 Similarly, in so far as cl 19 contemplates the grant of approval to commence a development, subject to conditions, it contemplates the WAPC's power to grant approval subject to conditions pursuant to cl 30(1) of the MRS, the requirement for which is confirmed by cl 18.
60 The power to impose conditions under cl 30(1) is a broad one: it permits the imposition of 'such conditions if any as [the WAPC] may deem fit'. The power in cl 30 to impose conditions on the approval of a development applies to both developments on reserved land and on zoned land. Clause 19 reflects the existence of this broad power, but explains how the broad power in cl 30 to approve the commencement of development, or to do so on conditions, is to be exercised in the specific case of reserved land. That is, of all the matters to which cl 30 refers, which may be taken into account in determining whether approval for any development (whether on reserved land or zoned land) should be given subject to conditions, cl 19 focuses attention on the matter specific to reserved land, namely the purpose for which the land is reserved. In that sense, cl 19 highlights which consideration referred to in cl 30(1) is pertinent to the grant of approval, subject to conditions, for a development on reserved land.
61 In addition, cl 19 provides some examples of the sorts of conditions which might be relevant to a development on reserved land. In doing so, cl 19 acknowledges the generality of the broad power to impose conditions, which derives from cl 30(1).
62 Counsel for Caltex submitted that cl 30 merely expands the power to grant an approval which is given to the WAPC under Pt II of the MRS, and that cl 30 does not, of itself, confer any power or jurisdiction on the WAPC to determine anything. I am unable to accept that submission in view of the plain meaning of the words used in cl 30(1) and in cl 18 and cl 19.
63 Counsel for Caltex submitted that Div 3 of Pt II of the MRS contains, in cl 19, an affirmative grant of power to approve, or to refuse to approve, a development on reserved land, and that this affirmative grant of power carried with it a negative implication that approval for a development of reserved land the subject of Pt II cannot be otherwise determined: Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 8 (Gavan Duffy CJ and Dixon J, McTiernan J agreeing at 20) see also Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom [2006] HCA 50; [2006] 228 CLR 566 at 586-589 (Gummow and Hayne JJ). Accordingly, counsel for Caltex submitted that cl 30 should not be construed as giving the WAPC the power to grant an approval for a development on land the subject of Pt II of the MRS. In view of my conclusion that the power to grant an approval, or to refuse to grant an approval, for the commencement of a development on reserved land is given to the WAPC under cl 30 in Pt IV of the MRS, and not under Pt II of the MRS, it is unnecessary for me to deal with this argument.
64 In my view, therefore, it is cl 30(1) which gives power to the WAPC to approve applications to commence a development on reserved land, or to refuse approval for that development, or to grant approval subject to conditions. It is that power which the Town purported to exercise in making the decision to refuse approval under the MRS for the Development on the Land.
65 The question, then, is whether the power to refuse approval for the Development, pursuant to cl 30(1), was in fact delegated to the Town pursuant to the Delegation.
66 The Delegation reproduces the terms of the resolution made by the WAPC pursuant to s 16(1) of the PD Act. The WAPC resolved, amongst other things:
to delegate to local governments ... its functions in respect of the determination, in accordance with Part IV of the [MRS], of applications for approval to commence and carry out development specified in clauses 1 and 2, within their respective districts, subject to the exceptions and conditions set out in clauses 1 to 5 and schedule 1.
67 The WAPC's resolution must be read in conjunction with what is described in the Delegation as the 'Instrument of Delegation', which is set out below the text of the WAPC's resolution. The references in the resolution to cl 1 to cl 5 and Sch 1 are to those clauses and that schedule in the 'Instrument of Delegation'.
68 One of the key issues at the hearing of the preliminary issue concerned the meaning of the words 'in accordance with Part IV of the [MRS]'. Counsel for Caltex submitted that these words indicated that the resolution delegated only the WAPC's functions in respect of determinations made by the WAPC pursuant to Pt IV of the MRS. It was his submission, therefore, that because the power to grant approval, or to refuse approval, for a development on reserved land was to be found in Pt II of the MRS, it was not the subject of the delegation.
69 I am unable to accept the latter part of counsel's submission. I accept that what are delegated under the resolution are the functions of the WAPC in respect of the determination of certain applications for approval, and that the Delegation contemplates that those determinations are made in accordance with Pt IV of the MRS. However, I do not accept the submission of counsel for Caltex that the power to approve developments on reserved land derives from Pt II of the MRS. For the reasons I have set out above the power to grant, or to refuse, the approvals which are required under other provisions of the MRS (such as cl 18) is granted to the WAPC under cl 30. Clause 30 is in Pt IV of the MRS, and the determination of applications for approval under cl 30 are therefore within the functions of the WAPC delegated by the resolution.
70 For the same reason, and contrary to the submission made by counsel for Caltex, there is no tension or inconsistency between the terms of the resolution and the applications for development referred to in cl 1 and cl 2 of the Instrument of Delegation. Relevantly for present purposes, cl 2 refers to 'applications for development on land reserved under the MRS for the purpose of a regional road'. The word 'development' is defined in Sch 1 to the Notice of Delegation to have the same meaning that it has in the PD Act. The term 'regional road' is defined in Sch 1 to the Notice of Delegation and includes land subject to an ORR reservation. As applications for developments on reserved land are determined by the WAPC pursuant to cl 30, which is in Pt IV of the MRS, the terms of the resolution, and of cl 2 of the Instrument of Delegation, are entirely consistent.
71 Accordingly, the decision to approve, or to refuse to approve, the Development on the Land was one of the functions of the WAPC which was delegated to the Town under the Delegation. I note, however, that the resolution makes clear that the functions delegated are subject to the various exceptions and conditions referred to in clauses 1 to 5 of the Instrument of Delegation, and in Sch 1 to the Instrument of Delegation.
72 Counsel for Caltex made a number of submissions based on the terms of cl 29 of the MRS. In order to understand those arguments it is convenient to set out the terms of cl 28 and cl 29 of the MRS in full:
29 (1) The local authority to which such an application is duly submitted shall, within seven days of that application, forward it to the [WAPC] for determination where -
(a) the application is for the development of land -
(ii) part of which is in the Swan development control area; or
(iii) which abuts that any part of the Swan development control area ... or
(b) the application is for the development of land zoned under Part III of the Scheme and the subject of a notice under Clause 32 of the Scheme or a declaration under section 112 of the [PD Act], or
(c) the application is for development of land (not coming under paragraph (a)(iii)) abutting reserved land and is not of a type which may be determined by that local authority under delegated powers conferred by the [WAPC] pursuant to section 16 of the [PD Act].
(2) In the case of any application for the development of land zoned under Part III of the Scheme and not required by the terms of sub-clause (1) to be determined by the [WAPC], the local authority shall determine the application in accordance with the power delegated by the [WAPC] under the [PD Act].
(3) Where under sub-clause (1) a local authority forwards an application to the [WAPC] the local authority may, within 42 days of the date of receipt of the application by the local authority (or such further period as the [WAPC] may allow) make recommendations for consideration by the [WAPC] in respect of the application.
73 Counsel for Caltex submitted that the only power to grant approval for a development, which is capable of being exercised by a local authority under Pt IV, is that referred to in cl 29(2). The basis for that submission was that cl 29(2) expressly refers to the potential delegation of the powers of the WAPC to a local authority. I understood counsel to submit that therefore cl 29 must be construed as requiring the WAPC itself to make the determinations referred to in cl 29(1)(a) to (c) that is, that determinations of that kind (including applications in respect of reserved land) could not be the subject of a delegation. Counsel for Caltex submitted that the reference in cl 30 to 'a local authority exercising the powers of the Commission so delegated' should therefore be understood as a reference to a local authority exercising the delegated power referred to in cl 29(2). He also submitted that cl 30 should therefore be interpreted distributively: cf AIB Group (UK) Ltd v Martin [2001] EWCA Civ 1750; [2002] 1 WLR 94 at 98. Consequently, he submitted that cl 30 should be understood as requiring applications for the development of reserved land to be dealt with by the WAPC, whereas applications for the development of zoned land could be dealt with by a local authority acting in accordance with delegated power.
74 I am not persuaded by those submissions. I accept that the terms of cl 29(1) are quite ambiguous. However, in my view (and applying the approach advocated by Lord Reid in Gill) the intent of cl 29(1) seems to be that ordinarily, and in the absence of a delegation of power by the WAPC to another person or body, the WAPC will deal with applications for development approval in respect of the land described in cl 29(1). However, if the WAPC delegates its power to another person or body that person or body will make the determination unless the delegation, by its terms, excludes determinations of a particular kind from the functions delegated (cf cl 29(1)(c) of the MRS).
75 In any event, in my view cl 29 does not contain a grant of power to the WAPC to make the determinations referred to in cl 29. That grant of power is contained in cl 30 of the MRS, where it is expressed in wide terms which are consistent with the power to approve developments being exercised by the WAPC or its delegate.
76 Counsel for Caltex referred to three further matters in support of the submission that the Delegation did not give to the Town the power of the WAPC under the MRS to determine the Development Application. Each of these arguments appeared to address the submission advanced by counsel for the Town that the reference in the resolution by the WAPC to 'the determination in accordance with Pt IV of the MRS, of applications for approval, indicated that development applications were to be determined in accordance with the process set out in Pt IV. That is, Caltex's submissions appeared intended to demonstrate that the Delegation was not consistent with that process, and was therefore not effective. The first of these arguments made by Caltex was that the Delegation purported to permit local authorities to make determinations of applications to commence a development on reserved land, without recourse to the WAPC, and that this was not consistent with cl 29 of the MRS. Counsel for Caltex submitted that cl 29(1) requires that certain development applications be referred to the WAPC for its determination, whereas the provisions of the Delegation (namely cl (a) and (b) of Sch 1 to the Delegation) meant that the local authority was required to submit an application to the WAPC only in very limited circumstances.
77 I am unable to accept that submission. In my view, the effect of the Delegation is that the obligations on the local authority under Pt IV of the MRS continue to apply, but references in Pt IV to determinations made by the WAPC, which determinations are of the kind referred to in cl 1 and cl 2 of the Delegation itself, must now be read as references to the WAPC's delegate (in this case, the Town). The result is that cl 29(1) effectively requires the Town to submit to itself, for its own determination, the applications for development which are referred to in cl 29(1) and which are referred to in cl 1 and cl 2 of the Delegation. Although that is a little unusual, it is simply a consequence of the fact that the delegation of the WAPC's power was made to local authorities, although the delegation could have been to any of the other persons or bodies referred to in s 16 of the PD Act. I note also that in some circumstances the Delegation itself requires that an application not be determined by the local authority as the delegate, but rather that it be referred back to the WAPC for determination (see para (a) of Sch 1 to the Instrument of Delegation).
78 Secondly, counsel for Caltex also submitted that the Delegation purported to exonerate local authorities from complying with the requirements of cl 30 of the MRS and that this could not be done. Counsel pointed to the fact that cl 3 of the Instrument of Delegation requires that development applications in relation to land subject to ORR reservations be referred to certain public authorities for comment and recommendation, before being determined by the local government in accordance with the table set out in the Instrument of Delegation. However, under the terms of the Delegation, the development application need not be referred to those public authorities at all in certain cases, and in other cases the development application may be determined by the local authority without receiving any comments from the public authorities. Counsel for Caltex also submitted that these provisions of the Delegation were inconsistent with cl 30 of the MRS. Although cl 30(1) provides that the WAPC or a local authority 'may consult with any authority that in the circumstances it thinks appropriate' counsel submitted that this should be construed as a mandatory requirement to consult, and that the consultation should involve an exchange of views, rather than merely a period of time in which an authority might provide its views.
79 I am not persuaded by this submission either. Clause 30 gives a wide discretion to consult with authorities that the decision maker (whether the WAPC or a delegate) considers appropriate in the circumstances, and the table in cl 3 of the Instrument of Delegation, and Sch 1 to that Instrument, simply provides guidance for the exercise of that discretion in certain cases.
80 Thirdly, counsel submitted that under cl 20 of the MRS compensation becomes payable when an application for approval is refused, or is approved with conditions that are unacceptable to the owner of the land. He submitted that it would be an odd outcome if a local authority, acting pursuant to power delegated by the WAPC, was able to make a decision which ultimately might result in the payment of compensation by the State. In my view, this does not warrant a construction of cl 30 which departs from its ordinary and natural meaning.
81 For the reasons set out above, in standing in the shoes of the Town for the purpose of the review application, the Tribunal has the power to grant or refuse approval for the commencement of the Development on the Land. The Tribunal has that power because the Town was acting pursuant to the power to grant or refuse approval to commence a development on reserved land. That power is given to the WAPC under cl 30(1) of the MRS, and was delegated to the Town pursuant to the Delegation. The preliminary question should therefore be answered 'yes'.
82 Whether the Tribunal should affirm, set aside or vary the decision reached by the Town in the exercise of that power now remains to be determined in the substantive hearing of the review application. The appropriate course is for the Tribunal to proceed to deal with the substantive issues arising on Caltex's application for a review of the decisions of the Town with respect to the Development Application. Accordingly, the appropriate order is to list the review application for a directions hearing to programme it for that substantive hearing.
I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1932) 47 CLR 1
(2002) 124 FCR 316
(2004) 138 FCR 181
(1998) 194 CLR 355
(1976) 12 ALR 239
(1970) 15 FLR 426