CITY OF GOSNELLS -v- REID [2024] WASCA 155 | Case summary

[3]

Planning and development - Judicial review - Whether the classification of 'uses' for the purposes of assessing a proposed development is a jurisdictional fact - Whether sufficient to accept that the classification of 'uses' was open or reasonably open to the local government decision-maker - Principles to be applied in determining classification of 'uses' for a proposed development

CITY OF GOSNELLS -v- REID [2024] WASCA 155 | Case summary | Zoe

[27]

We have had the considerable advantage of reading the draft reasons of Lundberg J. For the following reasons we would allow ground 6 but dismiss each remaining ground of appeal. We would also dismiss the first respondent's notice of contention.
The relevant factual and procedural background, as well as the applicable statutory provisions, are set out in the reasons of Lundberg J. These reasons assume familiarity with and use the terms defined in those reasons.
This appeal is concerned with a decision made by the appellant on 21 January 2022 to approve an application made under the Planning and Development Act 2005 (WA) to develop the Wattle Grove Site. Somewhat unusually, the appellant was both the applicant and the decision‑maker in relation to the approval sought. No issue was raised before the primary judge or on appeal about that circumstance.
By grounds 3 to 6 the appellant argues that the primary judge made several errors of law, or of law and fact, in respect of findings that were critical to her Honour's conclusion that the appellant did not have the power to grant development approval for the Proposed Development. The appellant's evident purpose in pursuing grounds 3 to 6 is to obtain a ruling from this court that, contrary to the primary judge's conclusion, the appellant did have the power to grant that development approval.
Grounds 3 to 5 relate to findings made by the primary judge that the appellant did not have the power to grant development approval for the Proposed Development having regard to its proper 'classification' under TPS 6. Ground 6 raises a separate, although related, issue about the scope of the appellant's grant of development approval, and whether it extended to approving a use of the Wattle Grove Site that was not permitted by TPS 6.
Grounds 1 and 2 are not concerned with whether the appellant had the power to grant development approval for the Proposed Development. These grounds only arise for consideration if the appellant fails to establish that the trial judge wrongly decided that the appellant did not have the power to approve the Proposed Development. By grounds 1 and 2, the appellant contends that if the trial judge correctly concluded that the appellant did not have power to grant development approval for the Proposed Development, the first respondent's application for judicial review of the appellant's decision should have been dismissed in the exercise of her Honour's discretion because the remedies sought by the appellant were inutile.
Having regard to the issues raised by the grounds of appeal, it is convenient to deal with them out of order. In that regard, it is appropriate to commence consideration of the appellant's contentions with ground 6. This is because ground 6 concerns the scope of the appellant's decision to approve the Proposed Development. It will then be necessary to deal with grounds 3 to 5, before finally dealing with grounds 1 and 2.

[28]

This ground is concerned with the scope of the appellant's decision to grant development approval for the Proposed Development.
The primary judge found that on 21 January 2022, the appellant granted itself development approval to engage in compost manufacturing and soil blending in the terms described in category 67A of sch 1 of the Environmental Protection Regulations 1987 (WA).[1] This was a significant finding in the context of the first respondent's claim that the appellant did not have the power to grant development approval for the Proposed Development. As Lundberg J has explained, the appellant did not have the power to approve a development with respect to the Wattle Grove Site that involved compost manufacturing and soil blending in the terms described in category 67A of sch 1 of the Environmental Protection Regulations (compost manufacturing and soil blending). This is because such a use would amount to an 'Industry - Noxious' use under TPS 6. By operation of cl 67 of the deemed provisions,[2] read with the Zoning Table in TPS 6, development approval could not be granted for that type of land use on the Wattle Grove Site.
Her Honour's finding that the appellant gave itself development approval to engage in compost manufacturing and soil blending was based entirely on some red-coloured notations that appear on what was referred to in the primary reasons as the 'Marked Plan'. In that regard, her Honour found at [315] of the primary reasons that she considered that 'due to the red notations on the Marked Plan approved by the WAPC, the [appellant] sought, and was given, approval to engage in compost manufacturing and soil blending in the terms described in Category 67A of the Environmental Protection Regulations'.
The Marked Plan appears as Attachment C to these reasons for ease of reference. The red notations with which this ground of appeal is concerned are those that appear on the Marked Plan adjacent to that part of the plan marked 'Waste Transfer Facility Area', in an area denoted by the words 'Green Waste Grinding Location'. The red markings also include the arrow that points towards that area, as well as the words 'Proposed Location for Category 67A Green Waste Grinding Area 3, 100 m2'.[3]
It was not in dispute that the reference in the red notations on the Marked Plan to 'Category 67A' is a reference to category 67A of sch 1 of the Environmental Protection Regulations.

[29]

By ground 6 the appellant contends that the primary judge erred in law in concluding that by reason of the red notations on the Marked Plan, the appellant sought, and was given, development approval to use the Wattle Grove Site to engage in compost manufacturing and soil blending.
In support of its contention, the appellant relies on the decision of the New South Wales Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services,[4] and on the line of authority referred to in that case. The appellant submits that those cases establish that the content and scope of a grant of development approval depends on the terms of the approval, construed in their context and having regard to the fact that the approval has an enduring function as a public document that is intended to be relied on by persons other than just the appellant. The appellant also submits that these cases establish, as a general principle, that the content and scope of a grant of development approval may extend to documents other than the approval itself, but only to the extent that they are incorporated into the development approval expressly or by necessary implication.
The appellant also referred to the more recent case of the New South Wales Court of Appeal in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council.[5] In that case, Basten JA (Gleeson JA & Preston CJ of LEC agreeing) concluded, in the context of the Environmental Planning and Assessment Act 1979 (NSW), that it should generally be permissible to have regard to a development application for the purpose of determining the scope and nature of the proposed development for which consent was sought, if that is a matter in issue.
Basten JA reached this conclusion because he considered that to do so was consistent with the relevant statutory scheme.[6] However, his Honour also noted that if it were necessary to find that the development application in that case had been 'incorporated' into the development consent, the proper conclusion was that it had been.[7]
In commenting on the cases that had considered the issue of the use that may properly be made of documents other than a council resolution granting development consent under the applicable legislation, Basten JA said:[8]

[37]

Accordingly, by operation of cl 60(a) of the deemed provisions, the appellant was prohibited from commencing or carrying out works on, or from using the Wattle Grove Site, for the purposes of the Proposed Development until, relevantly, it granted itself development approval under pt 8 of the deemed provisions.
Part 8 of the deemed provisions, headed 'Applications for development approval', contained various provisions concerned with the form of an application for development approval. Importantly, cl 62 made provision for how an application for a development approval 'must' be made.[13] In that regard, an application for development approval was required to be made in the form set out in cl 86(1), the form was required to be signed by the owner of the relevant land, the application had to be 'accompanied' by any prescribed fee, and (importantly) it had to be 'accompanied' by the 'plans and information specified in clause 63'.
It is unnecessary for the purposes of this appeal to determine whether the requirement that a development application be accompanied by the plans and information specified in cl 63 creates a condition regulating the grant of a development approval.[14]
According to cl 63, an application for development approval was required to 'be accompanied by' a plan or plans in a form approved by the local government. The plans were required to show several things, including the proposed use of the site, as well as the buildings and structures to be erected on the site.
Clause 63 also stipulated that an application for a grant of development approval was also required to be accompanied by a report on any specialist studies in respect of the development that the local government required the applicant to undertake, such as site surveys or traffic, heritage, environmental, engineering, or urban design studies, as well as any other plan or information that the local government reasonably required.
After receiving the documents specified in cl 62 and cl 63 of the deemed provisions, pursuant to cl 64 the local government may be required to then advertise, or require the applicant to advertise, the application for development approval in one of several specified ways. If a development application was advertised, then the local government was required to make 'the application and the material accompanying it available for public inspection' and could also publish it on the local government's website.
Amendments were made to the deemed provisions in February 2021,[15] after the appellant made its application for development approval. In particular, cl 63A was introduced into the deemed provisions. Clause 63A now places a limit on the time local governments are allowed to make a determination about whether an application for development approval should be accepted for assessment or whether amendments to the application were required to be made before it could be accepted.
Clause 63A(2) also provides that if a local government does not give the proponent of a development application written advice about whether the application has been accepted or whether an amendment is required within seven days, the application is taken to have been accepted for assessment.
At the time the appellant made its application for development approval in June 2020, cl 67 of the deemed provisions provided that in considering an application for development approval a local government was to have due regard to a wide range of matters that were identified in that provision, 'to the extent that, in the opinion of the local government, those matters [were] relevant to the development the subject of the application'.
By the time the appellant granted itself development approval in January 2022, cl 67 of the deemed provisions had also been amended.[16] While a local government was still required to have due regard to several specific considerations, cl 67(1) was inserted into the deemed provisions. Relevantly, cl 67(1) provides as follows:

[48]

It can be seen that cl 73 expressly marks out the scope of a development approval that may be granted by reference to the 'development for which approval is sought'. Significantly, development approval is sought by making an application in accordance with cl 62, 'accompanied' by the documents prescribed in cl 63.
The only extent to which the scope of a development approval may differ from the scope of a development for which approval is sought, is where approval is granted for a part or aspect of the development for which approval is sought, in the manner provided for in cl 73(b) and cl 73(c). In those circumstances, development approval may be granted for the development for which approval is sought, except for a part or aspect of the development. Further, approval may be granted for a part or aspect of the development. In either case, the terms of cl 73(b) and cl 73(c) make it clear that the relevant parts or aspects must be specified in the approval itself.
Accordingly, it is the development for which development approval is sought that will mark out the boundaries of any development approval that is granted under the relevant statutory scheme,[19] subject to anything specified in an approval granted under cl 73(b) or 73(c) of the deemed provisions. The development for which approval is sought is the development described in any application for a grant of development approval made in accordance with cl 62, and in the documents that accompany that application that are required under cl 63.
Before examining the merits of ground 6 in light of this review of the relevant statutory scheme, it must be noted that cl 65A of the deemed provisions now provides[20] that if an application for development approval has been accepted for assessment, the local government may, by written notice given to the applicant, request the applicant to provide any further information or material that the local government reasonably requires to determine the application. Further, cl 65A(4)(d) contemplates that an applicant for development approval may submit further information and material, on their own initiative, and after an application has been accepted for assessment.
There is no evidence that the appellant requested any further information or material by written notice pursuant to cl 65A. There is certainly nothing to suggest that the Marked Plan was provided as a result of any such request. Accordingly, it is unnecessary to determine whether the boundaries of a development approval may be affected by any additional information or material provided to a local government under cl 65A after an application has been accepted for assessment, and whether that information and material forms part of a development for which approval is sought, for the purposes of cl 73 of the deemed provisions.
Before dealing with the merits of ground 6, it is also necessary to say something about the place the Marked Plan occupies in the history of this matter.

[49]

The appellant applied for a grant of development approval in accordance with TPS 6 under cover of a letter dated 24 June 2020. Copies of the application,[21] its covering letter, and the documents that accompanied the application,[22] were attached to the affidavit of Connor Martin Fisher,[23] sworn 24 November 2021.[24]
It is common ground that the documents that accompanied the application for development approval did not include the Marked Plan. However, according to Mr Fisher's affidavit, the application (or the accompanying documents) stated that the Wattle Grove Site was 'intended to be used for the storage of green waste and for processing of green waste into mulch'.[25]
The application for a grant of development approval was given an 'Application Number', 'DA20/00317'. After the application was received it was given 'initial consideration by the appellant's relevant technical assessment team', on 24 June 2020.[26]
Based on Mr Terelinck's evidence, at an early stage in the development application process, officers employed by the appellant had been discussing the Proposed Development with the WAPC.[27] In that context, but for reasons that do not need to be explored in any detail, the appellant made a separate application to the WAPC for planning approval under the MRS on or about 6 July 2020.[28] According to Mr Fisher's affidavit, the plans attached to the application for development approval under the MRS were the same plans that were 'attached to' the application for a grant of development approval the appellant had made under TPS 6 in June 2020.[29]
In his affidavit, Mr Terelinck also said that the application for a grant of development approval made on 24 June 2020 was 'held over pending the determination of the application under the MRS'.[30] At that time, local governments were not required adhere to the time limit that now applies under cl 63A of the deemed provisions.[31]
According to the Agreed Facts, after the appellant made its application to the WAPC, the WAPC then 'called in' the appellant's application for a grant of development approval, pursuant to cl 32(1) of the MRS. The Agreed Facts stated that the WAPC 'called in' the development application 'on the expressed [sic] basis that it would be in the public interest that a decision under the MRS on the [development application] be made by the WAPC rather than by the [appellant] under delegation'.[32]
It is not necessary to deal with the legislative basis on which the development application was 'called in' by the WAPC. It is enough to note that it was common ground that any approval given by the WAPC would not have constituted an approval under TPS 6. In any event, the WAPC refused to approve the development application under the MRS.
After the WAPC communicated to the appellant its decision to refuse to approve the development application, the appellant then sought a review of the WAPC's decision in the State Administrative Tribunal (SAT). While the application for a review in the SAT was still on foot there was a mediation, after which the WAPC was directed by the SAT to reconsider its refusal to approve the development application under the MRS.
The appellant provided additional information to the WAPC to assist with its reconsideration of the development application under the MRS. Part of that information included a 'Planning Report, Development Application - Proposed Operations Centre and Waste Transfer Facility', prepared by the appellant. Attached to that report were various documents, including a plan marked 'Site Bund and Greenwaste Plan (Rev A)'. This was the plan the primary judge referred to as the 'Marked Plan'.[33]
The WAPC gave its approval to the development application under the MRS on 11 August 2021. In that approval, the WAPC said:

[51]

Accordingly, the WAPC approved 'the use and development' of the Wattle Grove Site 'as set out in' various documents that were attached to the approval. The primary judge found that the reference in the WAPC approval to a plan '10381-A026-C' was a typographical error, and that it should have referred to plan '10381-A02b-C'. The primary judge also found that plan '10381-A02b-C' was the Marked Plan, that this plan was attached to the WAPC approval, and that it had been stamped as having been approved by the WAPC on 3 August 2021.[34]
According to the Agreed Facts, on 14 September 2021 the appellant authorised its Chief Executive Officer to determine all development applications that required the approval of the WAPC and the appellant, where relevant consultation had been undertaken and where the application had been determined by the WAPC.[35]
Although Mr Fisher's affidavit said that the appellant's Chief Executive Officer approved the development application on 28 September 2021,[36] the evidence before the primary judge clearly established that it was Mr Terelinck who purported to approve the application pursuant to a sub‑delegation from the Chief Executive Officer.
Attached to Mr Fisher's affidavit was 'CMF-12', which was a copy of a letter to the appellant signed by Mr Terelinck on 18 October 2021, in which he advised the appellant that its application for a grant of development approval had been considered and approved. The letter also stated that a 'Notice of Determination on Application for Development Approval' was attached.
A copy of that notice, signed by Mr Terelinck on 18 October 2021, but noting that the determination had previously been made on 28 September 2021, referred to the application number 'DA20/00317' and to the date on which that application had been made, namely, 25 June 2020. It also contained several conditions and 'advice notes' that were in terms that effectively mirrored the conditions and advice notes set out in the WAPC approval.
Neither the notice of determination nor the letter signed by Mr Terelinck referred to any plans that accompanied the application for the grant of development approval.[37] However, several plans formed part of 'CMF‑12' that was attached to Mr Fisher's affidavit. Mr Fisher's evidence was that these plans were 'the approved development plans'.[38]
There were 14 plans that formed part of 'CMF-12'. Each of them was stamped in the following manner:

[60]

Her Honour also observed that the appellant 'accepted ... that what was recorded on the Marked Plan accurately reflected the things that the [appellant] was seeking to get approval to put on the land, although it said it accepted this "[o]nly in the sense that they are what is intended to be included in the operation centre"'.[44]
In our view, the primary judge received no assistance from the parties in identifying that the question to be resolved was whether the Marked Plan formed part of or accompanied the application for development approval that was granted on 21 January 2022. Unfortunately, as her Honour's reasons demonstrate, that question was never addressed.
In the context of the statutory scheme as we have explained it, and on the assumption that the red-coloured notations that appeared on the Marked Plan did in fact describe a proposed use of the Wattle Grove Site,[45] the critical question for the purposes of ground 6 is whether the Marked Plan formed part of the application for development for the purposes of cl 62 of the deemed provisions, or whether it 'accompanied' that application for the purposes of cl 63 of those provisions.
As there was no relevant agreed fact about that matter, the question of whether the Marked Plan formed part of or accompanied the application for development approval that was granted on 21 January 2022 was required to be resolved on the basis of the evidence that was before the primary judge.
In our view, the evidence comfortably establishes that the Marked Plan did not form part of or accompany the application for development approval that was granted, within the meaning of cl 63 or cl 64 of the deemed provisions.
The unchallenged evidence of Mr Fisher, to which reference has already been made, establishes that the appellant made only one application for a grant of development approval in accordance with the scheme established under the Planning and Development Act. That was the application, made under cover of a letter dated 24 June 2020, and formally made in a form prescribed for the purposes of cl 62 of the deemed provisions, together with the other documents that were also attached to that letter. According to the record of the planning proposal, which was attached to Mr Terelinck's affidavit as 'CBT 1', the application was assigned a number, 'DA20/00317'.[46]
Importantly, Mr Fisher's unchallenged evidence established that the Marked Plan did not form part of or 'accompany' application DA20/00317.
Based on the affidavits of Mr Fisher and of Sally Patricia Grebe[47] (the Director Planning Appeals, employed by the Department of Planning, Lands and Heritage), and the Agreed Facts, the application for development approval, DA20/00317, was 'called in' by the WAPC on 2 October 2020. After that application was refused by the WAPC under the MRS, the appellant sought a review of that decision in the SAT. When the SAT then required the WAPC to reconsider its decision, the appellant provided further information to the WAPC. That further information included the Marked Plan.[48] Further, and as has already been explained, the Marked Plan was one of the plans ultimately approved by the WAPC under the MRS.
In that context, the first respondent argued before the primary judge that the Marked Plan was the only plan that could have been approved by the appellant because it was one of the plans that was approved by the WAPC.[49]
However, the scope and nature of the appellant's application for a grant of development approval under the MRS that was made to the WAPC, the fact that that the appellant provided the Marked Plan to the WAPC reconsidering the application, and the fact that the Marked Plan was ultimately approved by the WAPC are all matters that are completely irrelevant to the question of whether the Marked Plan formed part of or accompanied the application for development approval that was granted on 21 January 2022. The appellant's dealings with the WAPC were not capable of, in effect, constituting a fresh application for development approval.
There was also no evidence before the primary judge that the appellant made any other application for a grant of development approval under the scheme established by the Planning and Development Act between 24 June 2020 and the eventual grant of development approval on 21 January 2022.
Further, there was nothing in the January 2022 Notice of Determination, or in the Chief Executive Officer's covering letter, that suggested that the grant of development approval made on 21 January 2022 related to anything other than the development for which approval was sought on 25 June 2020 in DA20/00317. On the contrary, the evidence established that the Chief Executive Officer acted in accordance with cl 73(a) of the deemed provisions by granting development approval 'for the development for which the approval is sought', namely the development described in 'DA20/00317'.
That the grant of development approval made on 21 January 2022 was not concerned with a different application for grant of development approval that was accompanied by the Marked Plan, is supported by the fact that the Marked Plan was not among the 14 stamped plans referred to at [60] and [61] of these reasons that were ultimately approved by the appellant.[50]
Accordingly, we are of the view that the primary judge erred in concluding that, due to the red-coloured notations on the Marked Plan that was approved by the WAPC, the appellant sought, and was given, approval to engage in compost manufacturing and soil blending.
In written submissions filed with leave after the hearing of the appeal, the first respondent submitted, in effect, that the appellant's application to amend its grounds of appeal to include ground 6 should be refused. In that regard, the first respondent argued that the application to amend the grounds of appeal caused prejudice because had the issue raised by ground 6 been raised earlier then further documents could have been included in the appeal books.
The first respondent also argued that ground 6 raised an issue that was not litigated before the primary judge. The first respondent submitted that the parties proceeded at the hearing before the primary judge on the shared assumption that the Marked Plan was the document that assembled all uses in respect of which the appellant sought, and then gave, development approval. In that context, the first respondent argued that had the appellant purported to 'disown' the Marked Plan at the hearing before the primary judge, then the first respondent could have made submissions about the affidavits on which the appellant relied. The first respondent also argued that it 'could have made further inquiry as to the provenance of the Marked Plan and the [appellant's] acceptance of it, and possibly the [appellant's] incapacity to avoid it, which may have led to cross-examination of [the appellant's] deponents'.[51]
The court has access to all the exhibits that were tendered in the proceedings before the primary judge. To the extent that the first respondent would have included further documents in the appeal books, the appellant did not object to the court receiving those documents in any event. Accordingly, the first basis on which the first respondent sought to resist the application to amend the grounds of appeal must be rejected.
The question of whether the application to amend should be refused on the second basis relied on by the first respondent must also be rejected.
It was common ground that the Marked Plan did not accompany the application for development approval that was granted on 21 January 2021. Accordingly, having regard to our reasons for concluding that the primary judge fell into error, any shared assumption that the Marked Plan was the document that assembled all uses in respect of which the appellant sought, and then gave, development approval, was misplaced.
Further, any enquiries the first respondent might otherwise have made about the provenance of the Marked Plan and the appellant's 'acceptance' of it, could not have affected the conclusion that the Marked Plan did not form part of or accompany the application for development approval that was granted on 21 January 2021.
Accordingly, we would allow the appellant's application to amend ground 6. We would also allow ground 6.
As we have said, the Marked Plan was the only basis on which the primary judge found that the appellant granted itself development approval to engage in compost manufacturing and soil blending. Because we have concluded that the primary judge erred in reaching that finding, it necessarily follows that her Honour's conclusion that the appellant fell into jurisdictional error in granting development approval in respect of that use was also erroneous.
However, and as will be seen, we are of the view that the balance of the grounds of appeal must be dismissed. This means that although the appellant has been successful in the context of ground 6, that success can have no effect on the primary judge's orders.
Further, and for the avoidance of doubt, it should not be concluded that because we would allow ground 6, the appellant will then be permitted to engage in green waste grinding on the Wattle Grove Site. In that regard, in allowing ground 6 we have not determined whether green waste grinding amounts to compost manufacturing and soil blending in the terms described in category 67A of the Environmental Protections Regulations, or whether it would be an 'Industry-Noxious' use under TPS 6 and therefore a prohibited use at the Wattle Grove Site.

[61]

By ground 5 the appellant contends that the primary judge erroneously found that the green waste grinding facility was properly classified as an 'Industry - Noxious' use and that it was therefore a prohibited land use for the purposes of TPS 6. Having regard to our conclusion in relation to ground 6, it is strictly unnecessary to determine this ground. In any event, ground 5 must be dismissed because it challenges a finding that the primary judge did not in fact make.
The primary judge found that the appellant had sought, and then obtained a grant of development approval which purported to allow it to engage in an 'Industry - Noxious' use, because it approved compost manufacturing and soil blending.[52] It was on this basis that her Honour found that the appellant had fallen into jurisdictional error because it had given itself approval to use the Wattle Grove Site for a use that was not permitted by TPS 6.
However, and contrary to the premise of ground 5, the primary judge did not determine whether the green waste grinding facility the appellant wanted to provide for on the Wattle Grove Site was an 'Industry - Noxious' use. Whether the facility the appellant intended to provide for was an 'Industry - Noxious' use under TPS 6 was beside the point. What the primary judge found was that the appellant had been granted development approval to engage in compost manufacturing and soil blending in the terms described in category 67A of sch 1 of the Environmental Protection Regulations (an 'industry-noxious' use). Her Honour made that finding because she considered that was the effect of the red-coloured notations that appeared on the Marked Plan.
It follows that it is of no consequence that there may have been evidence, unchallenged or otherwise, that the appellant has not, does not and will not engage in compost manufacturing and soil blending. That evidence was incapable of rationally affecting, directly or indirectly, the primary judge's assessment of whether the appellant had decided to grant development approval for the Wattle Grove Site to be used for such a purpose.
Ground 5 must be dismissed.

[64]

The appellant contended before the primary judge that, for various reasons, the whole of the Proposed Development constituted premises that satisfied this definition. As will be seen, the primary judge rejected that contention.
On appeal, the appellant argues that the primary judge erred in her approach to the question of whether the Proposed Development was a 'civic use' for the purposes of TPS 6. In particular, the appellant contends that questions about whether an activity falls within a land use classification under TPS 6, and whether an activity is permissible as being incidental to a use classification, involve issues of fact and degree about which reasonable minds may differ. Accordingly, the appellant argues that the relevant question for the primary judge was not whether the Proposed Development was within the civic use classification for the purposes of TPS 6, but whether it was open to the appellant to have reached that conclusion.
In support of those contentions, the appellant relies on Lizzio v Ryde Municipal Council;[53] Re Minister for Planning; Ex parte City of Canning;[54] and Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd.[55] However, as Lundberg J has pointed out, there is now a line of authority, commencing with Woolworths Ltd v Pallas Newco Pty Ltd,[56] that suggests that the appellant's approach to this ground of appeal is misconceived.
The question of whether a decision about the proper classification of a land use under a town planning scheme is a jurisdictional fact for the purposes of a grant of development approval under the statutory scheme under the umbrella of the Planning and Development Act turns on a question of statutory construction. However, the court did not receive any submissions about that issue by reference to the relevant statutory provisions. The parties also did not refer to, or have the opportunity to address the court about the application of Pallas Newco in the context of the statutory scheme under which the appellant granted development approval on 21 January 2022.
In those circumstances, it would be inappropriate to determine this ground on the basis that it is misconceived, as Pallas Newco appears to suggest.
The primary judge ultimately found, in effect, that the whole of the Proposed Development was not a 'civic use'. In that regard, her Honour concluded, firstly, that the phrase 'or other purposes' used in the meaning of the land use 'civic use', is constrained by the words 'administrative' and 'recreational'. However, her Honour found it was unnecessary to determine the extent to which the phrase 'or other purpose' is so constrained. Secondly, her Honour found that the Proposed Development would permit, among other things, compost manufacturing and soil blending, and a kennel, and that a 'civic use' did not capture those uses, having regard to the definition of 'civic use', the context of TPS 6 and the Planning and Development Act.
In our view, the primary judge was correct to conclude that the whole of the Proposed Development was not a civic use. We are also of the view that it was not open to the appellant to have reached a conclusion that it was a civic use. Given our conclusion in relation to ground 6, it is appropriate that we explain why we have reached that view on the assumption that the only land use the appellant approved that was not permitted under TPS 6 was a 'kennels' use.
Whether the appellant did approve a 'kennels' use is the subject of ground 4. As will be seen, we are of the view that ground 4 must be dismissed.
As senior counsel who appeared at the hearing of the appeal accepted,[57] the appellant conducted its case before the primary judge on the basis that the whole of the Proposed Development was a 'civic use' because, having regards to the definition of that land use in TPS 6, the Wattle Grove Site was to be used by the appellant for 'other purposes'.[58] In that regard, the appellant did not rely on that part of the definition of 'civic use' that is concerned with uses for 'administrative' and 'recreational' purposes.
However, at the hearing of the appeal, senior counsel for the appellant raised two new arguments.
Firstly, he appeared to argue that it was open to the appellant to decide that the whole of the Proposed Development was a 'civic use' because the Wattle Grove Site was to be used by the appellant for administrative purposes. Senior counsel submitted, in that regard, that the word 'administrative' has a broader meaning than a clerical or office‑based activity. He submitted that it means activities directed to the administration of the local government and its functions.[59]
Secondly, senior counsel appeared to contend that the animal facility was 'ancillary' to a 'civic use' and therefore did not constitute a separate land use. By the use of the word 'ancillary', it appeared that senior counsel was contending that development approval was not required for the animal facility because it was 'incidental' to the 'civic use' component of the Proposed Development.
Although senior counsel did not develop this submission to any significant degree, he appeared to be relying on what has been said elsewhere to amount to an 'established planning law concept that an incidental, ancillary or subordinate activity to a dominant land use is not in itself a land use requiring development approval' but is considered to be part and parcel of the primary use.[60]
In our view, none of the appellant's contentions should be accepted.
The operation of cl 3.4.1 of TPS 6 is critical to the determination of this ground of appeal.
Clause 3.4.1 appears in pt 3.4 of TPS 6, which is entitled 'Interpretation of the Zoning Table', and is in the following terms:

[66]

As can be seen, cl 3.4.1 plays an important role in the proper construction of the definitions of the various land uses that appear in the Zoning Table. Pursuant to cl 3.4.1, where general terms are used to describe a land use that is mentioned in the Zoning Table, all other specific land uses also mentioned in that table are excluded from those general terms. Accordingly, cl 3.4.1 restricts or cuts back the otherwise potentially broad reach of the more general terms used to define land uses, by excluding from those general terms the specific land uses mentioned in the Zoning Table that might otherwise have fallen within those terms.
The evident purpose of cl 3.4.1 is to ensure that where the Zoning Table provides that specific uses are prohibited in specific Zones, that prohibition will be maintained even if those land uses might otherwise fall within the more general terms used to describe other land uses.
Importantly, in the context of this case cl 3.4.1 deems that all the specific land uses mentioned in the Zoning Table are excluded from the general terms used to describe a 'civic use'. In that regard, general terms are used in the definition of 'civic use'. The words 'or other purposes' are of the most general nature. The terms 'administrative' and 'recreational' are also very general terms. Indeed, the appellant's submission that the word 'administrative' should be construed in a broad sense to extend to administration of the local government area and functions, supports rather than detracts from that conclusion.
There is no question that 'kennels' use is a specific land use mentioned in the Zoning Table. It is a use concerned with 'any land or buildings used for the boarding, keeping and/or breeding of more than two dogs'. See the definition of 'kennels' in sch 1 of TPS 6. It is deemed under cl 3.4.1 of TPS 6 to be excluded from the terms 'administrative, recreational or other purposes' that are used in the definition of 'civic use'.
Accordingly, on the assumption that the primary judge was correct to find that the Proposed Development involved a 'kennels' use, she was also correct to find that the whole of the Proposed Development was not a 'civic use' for the purposes of TPS 6. She was also correct to conclude that it followed that the Proposed Development was not capable of being approved.
The primary judge found that the animal facility that formed part of the Proposed Development could not sensibly be described as an activity that would be incidental to a 'civic use'. Her Honour concluded that this use was properly characterised as a separate use.[61] Her Honour's reasons for reaching that conclusion were as follows:[62]

[73]

In arriving at a conclusion that the animal facility amounted to a 'kennels' use, the primary judge also referred to evidence that established that materials provided by the City to the WAPC for its reconsideration of the City's Application included a 'Pound and Waste Transfer Facility - Plans' (Animal Facility Plan).[67] According to her Honour, that plan showed three sections of what were labelled 'kennels': 'Kennel 1' contained 4 kennels, 'Kennel 2' contained 14 kennels and 'Quarantine' contained 4 kennels. There were also three exercise yards attached to the building, and it was also to include various staff facilities.[68]
None of these findings are challenged by any of the grounds of appeal. However, having regard to our conclusion in relation to ground 6, the primary judge ought not to have made findings about the scope and nature of the development approval granted on 21 January 2022 by reference to the materials that were put before, or produced by, the WAPC as part of the process by which the WAPC reconsidered the appellant's application for development approval under the MRS. Those documents did not form part of, and did not accompany, the application for development approval that was granted on 21 January 2022.
Nevertheless, as the primary judge noted,[69] the plans that were approved as part of the appellant's decision to grant development approval, which we referred to in the context of ground 6, included the Animal Facility Plan. Accordingly, the fact that the primary judge erroneously relied on an identical document that was put before the WAPC is not material to the outcome of this ground of appeal.[70]
The primary judge also relied on a 'WAPC Reconsideration Report' which noted that the Proposed Development was to include 'a 280m2 dog pound building for a maximum of 10 dogs (able to accommodate 22 dogs) and administration building'.[71] However, the parties did not contest this case on the basis that the animal facility would not accommodate more than two dogs.
Her Honour ultimately found that keeping dogs in the manner proposed in the application for a grant of development approval that was approved by the appellant would constitute a 'kennels' land use under TPS 6.[72] As it was never suggested that the animal facility was to be used for boarding or for breeding dogs, her Honour reached that conclusion based on what she considered to be the ordinary meaning of the word 'keeping'.
The appellant's sole argument on appeal is that the word 'keeping', when used in the definition of the 'kennels' land use, means 'to have habitually in stock or for sale'.[73] The appellant contends that this is because to 'keep' two or more dogs, for the purposes of a 'kennels' land use, the dogs must be kept for some commercial purpose. The appellant argues that as the animal facility that formed part of the Proposed Development that it approved was not for any commercial purpose, the primary judge was wrong to hold that it constituted a 'kennels' use.
It must immediately be noted that this argument was not made to the primary judge. As recorded at [331] of her Honour's reasons, the appellant contended at first instance that the proposed animal facility that it had approved would not amount to a use that involved 'keeping' more than two dogs because 'keeping' dogs meant keeping them 'for their own sake, rather than being kept as prisoners'. In making this argument, the appellant was evidently attempting to avoid a finding that more than two dogs would be 'kept' at the proposed animal facility, and that it would therefore constitute a 'kennels' use, because the facility was, in effect, proposed to be a pound.
In support of the new argument it put on appeal, the appellant makes three points.
Firstly, it says the immediate context in which the word 'keeping' is used suggests that the dogs must be 'kept' for a commercial purpose. In that regard, the appellant points to the fact that the words 'boarding' and 'breeding' are words that have a commercial connotation.
Secondly, the appellant draws attention to the fact that the only land within the area covered by TPS 6 where a 'kennels' use is a permitted use, is land within the Kennels Zone. In his written submissions, senior counsel drew attention to cl 3.2 of TPS 6, highlighting that it provides that the objectives of the Kennels Zone are to 'provide for dog kennels in appropriate locations, to meet the needs of the community with respect to animal boarding and commercial animal breeding' (emphasis in original).
Thirdly, the appellant says that if 'keeping' is to be given its ordinary meaning then it would render 'boarding' and 'breeding' otiose, because both 'boarding' and 'breeding' would amount to 'keeping' in any event.
In our view, the appellant's contentions cannot be accepted.
The relevant principles that govern the construction of a town planning scheme, such as TPS 6, are well established. They were referred to by this court in Australian Unity Property Limited as Responsible Entity for the Australian Unity Diversified Property Fund v City of Busselton,[74] and may be summarised as follows:

[77]

The Shorter Oxford English Dictionary (5th ed) has other definitions, which include, amongst other things, '[c]onfinement, imprisonment, prison', as well as '[t]he action of retaining as one's own; the owning and managing of animals'. In that regard, a pound involves both the confinement and management of dogs.
The ordinary use of the words 'boarding' and 'breeding' connotes an activity that has a particular purpose. 'Boarding', for example, suggests that it involves the provision of a service, including but not exclusively on commercial terms, by which several different dogs are cared for over short periods of time while the dog's owners are otherwise unable to care for them. 'Breeding', in the context of a 'kennels' use, is concerned with an activity in which dogs are used to produce puppies, including but not limited to for a commercial purpose. However, the ordinary meaning of the word 'keeping', by contrast, does not necessarily connote activity that takes place for any particular purpose. For example, a person may 'keep' more than two dogs for no particular purpose other than because they like dogs.
It may be accepted that 'boarding' and 'breeding' are both activities that are capable of amounting to 'keeping'. In that regard, 'boarding' a dog may be understood as requiring a form of 'keeping', particularly in the sense that 'keeping' extends to looking after and taking care of a dog. Equally, an activity involving the 'breeding' of dogs may also be understood as requiring dogs to be kept. However, it is axiomatic that the word 'keeping' must be construed in its context. Specifically, it must be construed in a context in which the 'kennels' land use is expressed in the definition to be concerned with the 'boarding, keeping and/or breeding' of more than two dogs.
The use of the grammatical conjunction 'and/or' in the definition of 'kennels' use is significant. In our view, the phrase 'and/or' is used to indicate that a use of land or buildings to undertake any one of 'boarding', 'keeping' or 'breeding' more than two dogs will constitute a 'kennels' use. Further, it demonstrates that a 'kennels' use may include a use that is constituted by a combination of two or more activities that individually amount to 'boarding', 'breeding' or 'keeping', which, overall, involve two or more dogs. In our view, it follows that the words, 'boarding', 'keeping' and 'breeding', when used in the definition of 'kennels' in TPS 6, have distinct and separate meanings. Accordingly, the word 'keeping' used in the definition of the land use 'kennels' in TPS 6 must be read down so that it does not extend to 'boarding' or 'breeding'.
However, there is nothing in the context in which the 'kennels' land use definition appears to suggest that the ordinary meaning of the word 'keeping' should be read down any further. There is, in particular, no warrant for concluding that the reach of that word, when used in the definition of 'kennels' use, should be confined to circumstances in which there is a habitual having of more than two dogs in stock or for sale, or for it to be confined to a 'keeping' that is for a commercial purpose only, as the appellant submits.
In our view, having regard to the ordinary meaning of the word 'keeping', the evident purpose of deploying that word in the definition of 'kennels' land use is to ensure that the definition will capture a wide range of circumstances in which land or buildings may be used that involves the presence of two or more dogs, other than land uses that would otherwise amount to 'boarding' or 'breeding'.
To read the word 'keeping' in the restrictive way in which the appellant contends would undermine, rather than promote, that purpose.
Further, as Lundberg J has observed, the policy of TPS 6 is to 'corral' land or buildings used for 'boarding, keeping and/or breeding of more than two dogs' into the Kennel Zone. It is notorious that all dogs can cause noise, especially by barking. Common sense suggests that barking is more likely to have a greater adverse effect on the amenity of an area when more than two dogs are 'kept' on land or in a building in that area. It is also obvious that when more than two dogs are kept on land or in a building, there will be an increased risk of harm to persons who may encounter those dogs.
There is no reason to conclude that a purpose of TPS 6 is to manage these potential adverse effects in relation to the land to which it applies, but only when there is a commercial purpose for 'keeping' more than two dogs on land or in a building.
The fact that TPS 6 states that the objective of the Kennels Zone is to provide for dog kennels in appropriate locations to meet the needs of the community with respect to animal boarding and commercial animal breeding is beside the point. The Kennels Zone is comprised of areas of land to which TPS 6 applies which have been set aside for the purposes of housing potentially large numbers of dogs. The fact that a 'kennels' use is not permitted other than in the Kennels Zone does not drive the proper construction of that use definition. It simply demonstrates that a planning decision has been made that all 'kennels' land uses must take place alongside other similar land uses, and in the same zone.
There is at least one further reason why the 'keeping' of more than two dogs for the purposes of the definition of 'kennels' use is not confined to a 'keeping' that is for a commercial purpose only. However, it is only necessary to make brief reference to that reason.
Amongst the other land use definitions that appear in the Dictionary of Defined Words and Expressions in sch 1 of TPS 6 is the 'animal establishment' use. That use is defined as

[79]

It may immediately be noted that this definition refers, relevantly, to both 'breeding' and 'boarding'. However, unlike the definition of 'kennels' use, 'breeding' and 'boarding' are expressly limited to those activities carried out for 'commercial purposes'.
Further, although two specific land uses are expressly excluded from an 'animal establishment' use, namely, 'animal husbandry - intensive' and 'veterinary care', and no reference is made to 'kennels' use, it is important to appreciate that cl 3.4.1, which was discussed earlier in these reasons, also has work to do in construing this use definition.
To the extent that the word 'animals' is used in the 'animal establishment' use, it may be concluded that general terms are used to describe that use. Accordingly, by operation of cl 3.4.1, the specific use of 'kennels', which is only concerned with dogs, is deemed to be excluded from the general terms used to define the 'animal establishment' land use. This provides further support for the conclusion that the appellant's contention that the word 'keeping' in the 'kennels' use must have a commercial connotation cannot be accepted.
Reference was made by both parties to the Dog Act 1976 (WA) in support of their respective arguments about the proper construction of the 'kennels' use definition in TPS 6.
As we understand it, the appellant contends that TPS 6 and the 'kennels' use definition fall to be construed in the context of the Dog Act. Specifically, it is submitted that as certain provisions of the Dog Act already address the mischief of noise and other potential nuisances associated with keeping dogs, the 'kennels' use definition should be construed more narrowly such that it only captures the keeping of more than two dogs for commercial purposes. In support of his argument, senior counsel for the appellant referred to s 26 and s 27 of the Dog Act.
Section 26(1) provides, relevantly, that a local government may by a local law limit the number of dogs that can be kept in or at premises in the local government's district. Section 26(2)(a) further provides that such a local law may limit the number of dogs that can be kept in or at premises to two, three, four, five or six dogs only. However, the court was not referred to any relevant local law made by the appellant.
Certain exemptions may be granted by a local government under s 26(3)(a) of the Dog Act, and s 27 places an obligation on a person who proposes to keep in or at a premises more than the number of dogs allowed under the local law, where no exemption applies, to apply for the premises in question to be licensed as an approved kennel establishment.
It is difficult to see how the provisions of the Dog Act assist the appellant's argument. Even if, as the appellant submits, the word 'keeping' used in the 'kennels' use definition in TPS 6 is construed in the narrow sense it propounds, such keeping would also be subject to a requirement to comply with any local law made by the appellant under s 26 of the Dog Act. This is because s 26 of the Dog Act does not, by its terms, purport to apply only to the keeping of dogs that does not involve some commercial purpose. In that regard, s 33 contains special provisions that apply to greyhounds. There are also provisions, including s 16, s 33GA and s 33K, that are concerned with the exercise of control over 'commercial security dogs', a phrase that is defined in s 3 to mean 'a dog that is kept primarily for the purpose of guarding or protecting premises that are not dwellings and that are not the premises of the dog's owner, whether or not accompanied by a dog handler'.
There is also nothing inconsistent between the conferral of a power under s 26 to make a local law that limits the number of dogs that may be kept at a premises, and a definition of 'kennels' use in TPS 6 that embraces the ordinary meaning of the word 'keeping' as we have explained it. Section 26(1) of the Dog Act does not require the appellant to make a local law, much less require it to make a local law that is inconsistent with TPS 6.
In our view the primary judge was correct to hold that the animal facility that formed part of the Proposed Development approved by the appellant was a 'kennels' use.
Ground 4 must be dismissed.
In the proceedings conducted before the primary judge, neither party contended that in the event that it was concluded that the Proposed Development included a use that was prohibited under the Zoning Table in TPS 6, any invalid part of the development approval should be severed. Indeed, the primary judge made it clear that her understanding was that the application for judicial review was to be dealt with on an 'all-or-nothing basis'.[76]
Further, senior counsel for the appellant properly accepted at the hearing of the appeal that it was open to the appellant to argue before the primary judge that any invalid parts of the development approval should be severed but that it had not done so. In effect, senior counsel conceded that the appellant was bound by the forensic choices that it made in the court below.
Accordingly, and subject to the outcome of grounds 1 and 2, the dismissal of ground 4 means that the primary judge's orders are to remain undisturbed.

[90]

In other words, her Honour was not satisfied that the relief sought by the appellant in relation to the development approval granted by the appellant in respect of the Proposed Development was futile.
At the hearing of the appeal, senior counsel for the appellant confirmed that grounds 1 and 2 were concerned only with establishing that the relief sought by the first respondent was inutile.[84] Accordingly, both of these grounds proceed on the assumption that the primary judge correctly concluded that the appellant's decision to grant development approval was infected by jurisdictional error. As senior counsel put it, grounds 1 and 2 are 'an alternative pathway to success... at the stage of futility... rather than being a reason for supporting the validity of the development approval'.[85]
In the context of grounds 1 and 2 the appellant sought to establish that the Proposed Development is a 'public work', contrary to the primary judge's conclusion. However, even if this court were to conclude that the Proposed Development is a public work, the appellant must also establish that the relief sought by the first respondent is futile and that this court should therefore exercise the inherent discretion to refuse that relief.
In our view it is unnecessary to decide whether the primary judge was correct to conclude that the Proposed Development was not a 'public work' for the purposes of s 6 of the Planning and Development Act. This is because the relief sought by the first respondent would not be rendered inutile even if the Proposed Development is a 'public work'.
We infer from the history of this matter that the appellant is yet to commence undertaking, constructing or providing the Proposed Development. This means that in the absence of a declaration in the terms made by the primary judge, and the order setting aside the appellant's decision on 21 January 2022 to grant itself development approval, the appellant would be free to carry out the Proposed Development in accordance with the terms of that approval.
In those circumstances, the relief granted by the primary judge has practical utility. The effect of the orders made by the primary judge is that the appellant is prohibited from commencing to undertake, construct and provide the Proposed Development under the development approval granted on 21 January 2022. This means that the appellant must, instead, either obtain a different validly granted development approval, or, as a responsible local government operating under the Local Government Act, decide whether it is open to proceed with the Proposed Development by exercising different powers, including by deciding whether it has the right to undertake, construct or provide the Proposed Development as a 'public work'.
A further reason why it is not necessary to determine whether the Proposed Development is a 'public work', or whether the appellant has the 'right' to undertake the development as a public work for the purposes of s 6 of the Planning and Development Act, is that the appellant has failed to establish a critical premise of its argument.
Underlying the appellant's argument that the relief sought by the first respondent is futile is a contention that the setting aside of the appellant's decision to grant the development approval will be of no practical effect because it is inevitable that the appellant will proceed with the Proposed Development and that it will do so in the proper exercise of its right to undertake, construct or provide any 'public work'.
However, it would not have been open to her Honour to have concluded that the appellant would inevitably proceed with the Proposed Development as a public work that it had the right to undertake, construct or provide for the purposes of s 6 of the Planning and Development Act. There is also nothing before this court that would persuade us to reach that conclusion. To reach a finding that completion of the Proposed Development is inevitable would involve engaging in an exercise of speculation. Further, the remedies sought by the first respondent are not rendered futile simply because it might otherwise be open to the appellant to proceed with the Proposed Development as a public work.
In any event, s 6(2) of the Planning and Development Act provides that any right the appellant may have to undertake, construct or provide public works is to be 'exercised having due regard' to the matters referred to in s 6(2)(a), s 6(2)(b) and s 6(2)(c). The primary judge found that the appellant had not complied with s 6(2), and that finding has not been challenged by any of the grounds of appeal.
It is also plainly not possible for this court to predict in advance whether the appellant will (and will be able to) comply with s 6(2) of the Planning and Development Act if it purports to exercise any rights it may have to undertake, construct or provide the Proposed Development as a 'public work'. The question of whether the appellant complies with s 6(2) is a question that can only be answered having regard to all of the relevant facts and circumstances that exist if and when those rights may or may purportedly be exercised.
We would dismiss grounds 1 and 2.

[93]

(a) The first issue to be addressed, having regard to the grounds of appeal, is whether or not the City's proposal for development is properly to be characterised as the exercise of a right to undertake a 'public work' under the exemption which exists in s 6(1) of the PD Act.

(b) The issue as to the application of the 'public work' exemption falls to be assessed on the basis of the proper construction of s 6(1) of the PD Act, when read with the associated definitions of 'public work' in s 4(1) of the PD Act and s 2 of the Public Works Act 1902 (WA) (PW Act). The latter provision was amended with effect on and from 10 August 2023. The particular form of the legislation to be examined on this appeal is the legislation as it existed at the date of the hearing of the appeal.

(c) On a proper construction of the legislation, I consider the City is not seeking to exercise a right to undertake a 'public work' within the meaning of s 6(1) of the PD Act, when read with the associated definitions, and so the Proposed Development is not exempt from the requirements of the PD Act and TPS 6. In this regard, I agree with the ultimate conclusion of the primary judge and would dismiss ground 1.

(d) As to ground 2, by which the appellant contends the primary judge ought to have refused to grant the relief sought by the first respondent on the basis it lacked utility (given the 'public work' contention), that must also be dismissed given the conclusions I have reached in relation to ground 1 and as to the 'use' classification questions raised by the remaining grounds. The relief granted by the primary judge, to set aside the approval granted by the City, had practical utility.

(e) As to the 'use' classification issues, the appellant's suggested approach to the examination of this issue is flawed. The appellant urges upon the Court an approach by which the Court on a judicial review application should confine itself to a consideration as to whether it was 'open' to the primary decision‑maker to grant the approval it did, or whether the approval was 'capable of being given'. On the City's suggested approach, the City would be permitted to err within jurisdiction. That is not the correct approach, in my view. Rather, I consider the correct position is that, within the context of the terms and structure of the PD Act and TPS 6, the question of characterisation as to whether a proposed development is for a permissible 'use' is a jurisdictional fact. That question is to be objectively examined by the Court. The primary judge, in my view, approached the judicial review task in the correct manner.

(f) Further, I agree with the conclusion of the primary judge as to the characterisation of the proposed development, in that I consider the proposed development involves separate uses, each of which requires assessment against the requirements of TPS 6, rather than one integrated use. The appellant's contention that the whole of the proposed development should be classified as a 'civic use', which forms the basis of ground 3, should be rejected.

(g) Further, the primary judge did not err in concluding that the animal holding facility within the proposed development was properly classified under TPS 6 as a 'kennels' use, which is a prohibited use in the 'General Rural Zone'. Ground 4 must be dismissed. As the appellant did not put its case, below or on appeal, that any invalid parts of the City's approval might be severed, the conclusion as to ground 4 is determinative of the appeal, given the views I have reached as to grounds 1 and 2. On that basis, it is unnecessary to address the first respondent's notice of contentions.

(h) Further, the appellant's challenge by ground 5 to the primary judge's conclusion that the green waste grinding facility within the proposed development was properly classified as an 'industry noxious' use, which is a prohibited use in the 'General Rural Zone', should be rejected. The premise of that ground is that the subjective intention of the appellant's officers as to the intended use of the site should be determinative, rather than the terms of the approval. Such an approach would be flawed. The focus of the inquiry, to determine as a jurisdictional fact the 'uses' of a proposed development, is upon the terms of the approval, as understood within the statutory context.

(i) Finally, and consistent with the point just made, it should be noted that the proposed ground of appeal which the appellant has sought leave to add (being proposed ground 6), focuses attention on the proper inquiry, which is the terms of the development approval within the statuory context. The proposed ground challenges the primary judge's conclusion that the approval of the Proposed Development included the green waste grinding facility. This finding was based on her Honour's understanding that the document referred to as the 'Marked Plan' formed part of the approval which was given. That document contains red‑coloured notations referring to 'green waste grinding' and the prescribed premises category of compost manufacturing and soil blending. For the reasons given by Buss P and Vandongen JA, leave should be given to the appellant to add proposed ground 6, and the ground should be allowed. The primary judge's conclusion that the City fell into jurisdictional error in granting the approval (a conclusion to which her Honour was led by the approach adopted by the parties) was incorrect.

[95]

The City is a local government authority established for the district of Gosnells under s 2.5 of the Local Government Act 1995 (WA) (LG Act). The City is the decision‑making authority for the purposes of TPS 6. That scheme takes effect by reason of the provisions of the PD Act.
In addition to being the decision‑maker, the City is the proponent of the development with which this appeal is concerned. For some time, both the operations centre and the works depot for the City have been located in Maddington. The City wishes to replace those facilities as the location is said to be no longer suitable.[87] For this purpose, the City is proposing to develop a rural area of land in Wattle Grove (Wattle Grove Site) so as to enable the City's operations and certain additional activities to be carried out at the new location (Proposed Development).
The relative location of the Wattle Grove Site to the existing operations centre, and the adjacent zonings, can be seen in the Regional Context Plan which was tendered by the appellant in the proceedings below.[88] A copy of that Regional Context Plan is included as Attachment A to these reasons.
The structure which forms the basis of the Proposed Development at the Wattle Grove Site is typically referred to in the appellant's documents as the 'Operations Centre and Waste Transfer Facility'. In general terms, the structure includes an administration building, workshops, a waste transfer facility, a dog pound building, a short term livestock impound facility, a vehicle impound yard, parking bays, and an effluent disposal system.[89] It is a sizeable development, with a footprint of around 19 hectares and a development value of approximately $16 million.[90]
A broad sense of the Proposed Development can be obtained from the site plan which shows the proposed site layout, included as Attachment B to these reasons.[91]
The Proposed Development would provide services and facilities to the community of the district of Gosnells.[92] The lots which form the Wattle Grove Land are all held in fee simple by the appellant and located wholly within the local government district of the appellant.[93]
The City approved its own development application pursuant to the terms of TPS 6. The entire area of the development site is zoned 'General Rural' under TPS 6. The 'General Rural Zone' is one of the Rural zones under TPS 6, which also includes the 'Special Rural Zone' and the 'Kennels Zone'.[94]
Separately, the City also sought, and obtained, approval from the Western Australian Planning Commission (WAPC) under the applicable region planning scheme for the development, which is the Metropolitan Region Scheme (MRS). The WAPC is the decision‑making authority for the purposes of the region planning scheme. The entire area of the development site is zoned Rural under the MRS.[95]
Even though the appellant sought approval under the applicable local planning scheme, and in fact granted that approval, it nonetheless maintains that it was, and is, entitled to undertake and construct the development without obtaining any such approval in accordance with the PD Act. The appellant has relied, and continues to rely, on the 'public work' exemption which is established by s 6(1) of the PD Act, which adopts the definition of the term 'public work' in s 2 of the PW Act.

[100]

It is convenient to say something at the outset of these reasons about the framework for the approval of developments in Western Australia. That framework is generally to be found within the provisions of the PD Act, the subsidiary legislation prescribed thereunder, and the terms of the planning schemes which are promulgated under that regime. The subsidiary legislation includes the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (PD Regulations).
There are two types of planning schemes relevant to the present development, namely region planning schemes (in this case, the MRS) and local planning schemes (in this case, TPS 6).[100] These instruments both have force of law by reason of the PD Act.[101]
Typically, a local planning scheme will detail the approval requirements and limits on uses which apply in the district to which the scheme relates. Indeed, there are provisions to this effect which are deemed into such schemes by force of the PD Regulations. All local planning schemes must incorporate the deemed provisions which are set out in sch 2 of the PD Regulations.[102] This includes cl 67(1) of sch 2 which provides, in general terms and with some exceptions, that development approval cannot be granted on (a) an application for approval of a development that is a class 'X' use in relation to the zone in which the development is located, or (b) a development that otherwise does not comply with a requirement of the scheme.
Further, all local planning schemes must incorporate the model provisions set out in sch 1 of the PD Regulations, unless the Minister approves otherwise.[103] This includes, for example, the inclusion of a zoning table for controlling the orderly use of land in the particular district.
The requirement that approval must be obtained before a development is commenced or carried out is reinforced by s 162 of the PD Act, which is headed 'No development except with approval'. The provision forms part of div 5 pt 10 of the PD Act, which concerns 'Development Controls'. In substance, s 162(1) of the PD Act states that, where a planning scheme provides that a particular development is not to be commenced or carried out without approval being obtained, a person must not commence or carry out that development on land to which the planning scheme applies unless the approval has been obtained under the planning scheme (and is in force) and the development is carried out in accordance with applicable conditions.
Section 162(2) provides that nothing within s 162(1) 'limits or otherwise affects a right or entitlement under any other written law'.
Within the deemed provisions in sch 2 to the PD Regulations, the provisions within pt 7 further address the requirement for development approval. Clause 60 of sch 2 provides as follows:
1. Requirement for development approval

[106]

The City seeks orders on this appeal to have the primary judge's orders set aside and to have the first respondent's judicial review application dismissed.[106] The first respondent opposes the appeal and has filed a notice of contentions.[107] The second respondent, the WAPC, has filed a submitting appearance.
The appellant has applied to amend its grounds of appeal, by abandoning grounds 6 and 7 and adding a fresh ground, which I will refer to as proposed ground 6.[108] The application to amend was filed the day before the appeal was heard. The proposed ground relates to the status of a particular plan which was an issue addressed by the primary judge at [292] ‑ [315] of the Primary Reasons.
The grounds of appeal are set out below:
1. The learned primary judge erred in law in concluding that the proposed development (the Proposed Development) is not a 'public work' within the meaning of s 6 of the Planning and Development Act 2005 (WA) (the PD Act) (PJ [151]).
2. Further to ground 1, the learned primary judge erred in fact and in law in failing to refuse the grant of the relief sought on a discretionary ground, namely inutility.
3. Further and alternatively, the learned primary judge erred in law in concluding that the whole of the Proposed Development was not capable of being properly classified as a 'civic use' within the meaning of the City of Gosnells Town Planning Scheme No 6 (TPS 6) and therefore capable of being approved on that basis (PJ [266] ‑ [273]).
4. Further and alternatively, the learned primary judge erred in law in concluding that that part of the Proposed Development consisting of the 'animal holding facility' (or part thereof) was properly classified as a 'Kennels' use within the meaning of TPS 6 and therefore a prohibited use on the site (PJ [336]).
5. Further and alternatively, the learned primary judge erred in law and in fact in concluding that the green waste grinding facility was properly classified as an 'Industry‑Noxious' use within the meaning of TPS 6 and therefore a prohibited use on the site because the City had sought and been given approval to engage in compost manufacturing and soil blending pursuant to category 67A of Schedule 1 of the Environmental Protection Regulations 1987 (WA) (Category 67A) (PJ [359]), when the unchallenged evidence was that the City has not, does not and will not engage in compost manufacturing and soil blending on the land within Category 67A.
6. Further and alternatively, the learned primary judge erred in law in concluding that the City bore the onus of proving that the green waste grinding facility on the site was an existing non‑conforming use within cl 3.8(a) of TPS 6 (PJ [375 ‑ 378]).
7. Further and alternatively, if (which is denied) the City bore the onus of proving that the green waste grinding facility on the site was an existing non‑ conforming use, the learned primary judge erred in fact in failing to find that it had not been discontinued for a period of 6 months (PJ [379]).
8. Further and alternatively, the learned primary judged erred in law in concluding, by reason of notations on a site plan which formed part of the WAPC approval ('the Marked Plan'), that the development approval permits compost manufacturing and soil blending in the terms described in Category 67A, when (as the learned primary judge found) the plans which formed part of the development approval did not include the Marked Plan, and the learned primary judge should have found that the Marked Plan did not form part of the development approval and in any event was a site plan only and not a land use plan (PJ [292], [295], [296], [308], [309], [315], [321], [351], [359], [360], [365]).
The application for leave to include proposed ground 6 was opposed by the first respondent. Having heard from senior counsel for both parties at the hearing of the appeal in relation to the amendment, the Court made directions to allow the parties an opportunity to file additional written submissions on the question of leave.[109] Further submissions were subsequently filed.[110] I will address the question of leave when dealing with the proposed ground.

[131]

By appeal ground 1, the appellant contends the primary judge erred in law in concluding that the Proposed Development was not a 'public work' within the meaning of s 6(1) of the PD Act.[150] The primary judge addressed this issue at [47] ‑ [152] of the Primary Reasons, essentially as an exercise in statutory construction.
There are two preliminary matters which should be examined before the substance of this first issue is addressed.
First, the amendments to the legislation effected by the 2023 Amendment Act raise a question as to which legislative regime is to be examined for the purposes of this appeal. As the parties' written submissions were all filed prior to the amending legislation being passed, the impact of the 2023 Amendment Act was not addressed in those submissions.
During the course of the hearing of the appeal, the Court raised the significance of the 2023 Amendment Act with both senior counsel.[151] It was accepted by the parties that this Court ought have regard to the terms of the legislation as it presently stands, rather than the pre‑existing regime.[152] This is consistent with orthodox principle and should be accepted. As this is an appeal by way of rehearing,[153] it is necessary for the law to be examined as it stands at the date of the appeal decision,[154] having regard to the evidence adduced before the primary judge, and subject to any further evidence this Court may allow to be adduced on the appeal.
Second, there are features of this appeal which raise for consideration whether it is strictly necessary for this Court to express an opinion as to the proper construction of the 'public work' exemption in s 6(1) of the PD Act, having regard to the principles of judicial economy.[155]
A significant feature of the appeal which gives rise to this question is the primary judge's conclusion concerning the requirements of s 6(2) and s 6(3) of the PD Act. At [165] of the Primary Reasons, the primary judge concluded that even if the Proposed Development was a 'public work', her Honour would not find that the City complied with s 6(2) of the PD Act. This issue was highlighted by the first respondent in his submissions.[156] This point is important because the steps required by s 6(2) and s 6(3) of the PD Act expressly form part of the statutory exemption established by s 6(1) of the PD Act, upon which the appellant relies. This is clear from the opening words of s 6(1), which state that the provision is subject to subsections (2) ‑ (4) thereof. As to the content of these sub‑sections, s 6(2)(b), for example, requires that the right to undertake, construct or provide any public work is to be exercised having due regard to the 'orderly and proper planning, and the preservation of the amenity, of that locality at that time'.
As matters presently stand, there is no evidence as to whether the appellant in fact complied with s 6(2) and s 6(3) of the PD Act.
The appellant's position at first instance was that compliance should be assumed by reason of cl 67(2)(b) of the Deemed Provisions, which requires that the decision‑maker have due regard to the requirements of orderly and proper planning. Alternatively, the Court should assume the appellant would comply with the relevant processes in the future.[157]
Her Honour was not satisfied that either of these approaches was a satisfactory response to the legislative requirements.
That said, the primary judge accepted at [167] of the Primary Reasons that this would not prevent the City from exercising any power it had under s 6 of the PD Act. In this regard, I understand her Honour recognised that there are timing issues associated with the exercise of the right in s 6(1) of the PD Act and with satisfaction of the steps in s 6(2) and s 6(3) of the PD Act. In essence, the appellant maintains the time for consideration of the matters in s 6(2) and s 6(3) of the PD Act has not yet fallen due.[158] The fact there remains a question as to whether the appellant will exercise the asserted right to undertake, construct or provide the public work, and whether it will properly do so in accordance with these provisions, suggests that a determination by this Court of the issue raised by ground 1 would be premature.
The additional features of the appeal which give rise to the question I posed at [278] above are: (a) the fact that material amendments have been made to the applicable legislation since the hearing below, (b) the fact the appellant does not (by any ground of its appeal) directly challenge the primary judge's conclusions in relation to s 6(2) and s 6(3) o[159]he PD Act159 and, finally, (c) the fact the appellant has not sought any specific relief in relation to its asserted entitlement under s 6(1) of[160]e PD Act.160
Against the foregoing, I recognise there is a strong element of public interest associated with the issues raised by grounds 1 and 2. The subject matter of the appeal concerns a dispute between a local government and a resident as to the construction of a relatively large‑scale development, which the local government asserts is required to enable it to provide services to people in its district. The appellant has submitted to this Court that the issues raised by ground 1 are of potentially 'widespread implication as to what type of works local governments can carry out without the need for development approval'.[161] Further, it seems likely that both parties have incurred a considerable amount in legal fees and other costs in litigating these issues to date. Further still, whilst the legislation has been amended since the hearing of this matter below, the parties have had an adequate opportunity to make submissions on the legislation in its amended form.
On balance, the view I take is the Court should undertake the construction exercise. The substance of ground 1, adjusted to reflect the amended legislation, should be addressed by this Court and I propose to do so. I will start by reviewing the principal statutory instruments which are relevant to this issue, which are the PD Act, the PW Act, and the LG Act. The relevant provisions of these instruments are set out below.

[147]

The PW Act has a long history. Aspects of that history were traced by this Court in Saldanha v City of Belmont.[162]
The legislation, originally entitled the Public Works Act 1902 (WA), later the Land Acquisition and Public Works Act 1902 (WA), and now again the Public Works Act 1902 (WA), has been amended on numerous occasions over time, with portions of the regime now being found in other enactments. For example, the provisions dealing with the taking of land for public work and payment of compensation are now found in the LA Act.[163]
The PW Act provides for the ongoing operation of the Western Australian Building Management Authority, and contains powers for the establishment and improvement of roads, rivers, bridges and railways, as well as affording powers of entry onto land.
By s 11 of the PW Act, as it stood prior to 10 August 2023, the Governor was empowered to authorise the Minister to 'undertake, construct, or provide any public work except as to railways, in which case the authorisation may be given to the Public Transport Authority', and such authorisation was deemed an authority given by and under the legislation.
Part VI of the PW Act (which has not been amended by the 2023 Amendment Act) deals with the construction of railways. Section 96(1) provides that every railway shall be made only under the authority of a 'special Act'. By s 99(1), various powers are vested in the Public Transport Authority in relation to railways authorised by a 'special Act'.
The PW Act includes a definition of 'public work' in s 2. The appellant observes that this definition, apart from a number of relatively minor amendments and formatting changes, had remained largely unchanged over the years (until the passing of the 2023 Amendment Act).[164]
At the time the proceedings were heard and determined by the primary judge, s 2 of the PW Act stood in the form which appears in the Primary Reasons at [62]. For convenience, I have set out in Attachment D to these reasons this lengthy definition. The critical parts of the definition (upon which the appellant relied below) are set out below:

[167]

As is evident from the foregoing, the appellant does not point to any statutory provision which expressly identifies or characterises the Proposed Development as a 'public work'. Rather, the appellant relies upon the general provisions within the LG Act which it says confer upon it the power to carry out the Proposed Development, and which it says thereby operate to engage s 6(1)(a) of the PD Act.[166]
The appellant refers to the general function of the City which is to provide for the 'good government of persons' in its district, which is found in s 3.1(1) of the LG Act. The appellant submits that a liberal approach is to be taken to the construction of the scope of this general function, by reason of s 3.1(3) of the LG Act. Nonetheless, the appellant recognises that this is not to be read as going beyond the accepted notions of local government: Lynch v Brisbane City Council[167] and Attorney‑General (SA) v Corporation of the City of Adelaide.[168]
The appellant also refers to the broad powers in s 3.18(1) and s 3.18(2) of the LG Act. The first of these is the power to do all things that are necessary or convenient to be done for, or in connection with, performing the general function. The second is that, in performing its executive functions, the City may provide services and facilities.
The appellant's position in the proceedings before the primary judge was broader than this, it having contended, as an alternative argument, that each individual aspect of the Proposed Development was authorised in some way by statute.[169] For example, the appellant relied upon the legislative authority to establish and maintain a public pound to support the conclusion that it had been authorised to undertake 'work' under that legislation.[170] On the basis of this argument, the appellant had contended below that both pars (a) and (b) of the definition of 'public work' were engaged.
The primary judge rejected this alternative contention, concluding, correctly in my view, that the definition of 'public work' is not a source of power.[171] This alternative contention has not been agitated on appeal.
There is, however, a fresh contention raised by the appellant on the appeal, arising from the amendments to the PW Act. The appellant asserts that the various components of the Proposed Development constitute 'public work' within items 5, 14, 25 and 31 of sch 1 to the PW Act. For example, item 25 refers to 'Waste management facilities, including refuse tips, waste transfer stations, waste storage facilities, incinerators and recycling centres and depots'.
In essence, then, the appellant's contention on appeal as to the status of the Proposed Development as a 'public work' within the meaning of s 2 of the PW Act, for the purposes of s 6(1)(a) of the PD Act, has three dimensions. They are as follows:

[170]

As to the construction of the definition of 'public work' in s 2 of the PW Act, the first respondent emphasises a number of indicia in the legislative scheme which he contends supports the conclusion, correctly reached he says by the primary judge, that the engagement of s 3.1 and s 3.18 of the LG Act did not itself translate to a development constituting a 'public work'.[175] That is, merely because a development might be authorised under these provisions did not have the effect that the development was a 'public work'.
As to the scope of par (b) of the previous definition, the first respondent posits a narrow construction of this aspect of the definition, given the use of the term 'by' in contrast to 'under'. Absent the work being expressly authorised by the text of a statute, the first respondent contends that par (b) has no application.[176] The first respondent further contends that par (b) of the previous definition is limited by subject matter to railways, as found by the primary judge. The 2023 Amendment Act has effected a change to the language of this particular paragraph of the definition but, in essence, the first respondent maintains that a narrow construction is required of the language now found in item 2 of sch 1 to the PW Act.
The first respondent's submissions identify a number of reasons which are said to support his preferred approach in this matter, and which explain why the requirement for planning approval was not disengaged in relation to the Proposed Development. Without being exhaustive, the following points are advanced on behalf of the first respondent.
First, the language of s 3.1 and s 3.18 of the LG Act are said to be insufficiently specific for the purposes of the regime in the PW Act. That regime includes, it is submitted, 'distinct identification of those developments which are deemed appropriate for the status and ramifications of public works, and equally intentional exclusion of all other, less significant, developments from such status'.[177]
Second, the inclusion of the term 'works' elsewhere in the LG Act, but not within s 3.18, is said to be of significance to the legislative construction exercise.[178]
Third, the first respondent submits that the legislature has chosen a 'different empowerment path for public works by local governments'.[179] The first respondent refers to s 69(1)(b) and sch 7 of the PD Act in this regard, which have the effect, it is said, that the power to carry out public works, and only specific public works, must be found in a local planning scheme. The appellant's approach, it is submitted, would subvert that regime.
Fourth, the legislative regime for public works is said to entail 'central government oversight of public works', which would be absent if the appellant's interpretation was accepted.[180]
The first respondent addresses the utility arguments in ground 2 by reference to the language of the ground as drafted.[181] The first respondent approaches this ground on the assumption that the relevant error is said to reside in the primary judge's failure to 'refuse relief' on the discretionary ground that granting such relief was inutile.[182] However, the first respondent notes there was no 'relief' sought or granted in respect of public works. The only relief granted was in respect of the 'use' issue, which it is said has obvious utility.[183]
The first respondent also challenges the appellant's approach to s 6(2) and s 6(3) of the PD Act. The appellant appears to submit, according to the first respondent, that the Court should accept that 'the City is to be treated as having complied' with those provisions by virtue of the application for planning approval having been made.[184] This ignores, it is said, the requirement in s 6(2) of the PD Act for 'due regard' to the purpose and intent of TPS 6.
The first respondent submits that:[185]

[176]

The task of construing the relevant provisions of the PD Act, and the related legislation, is to be undertaken by reference to well‑established principes of statutory construction. Those principles are not in dispute on this appeal. They may briefly be summarised as follows, drawing on this Court's summary in Webb v Tang.[190]
The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.[191] The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision: Project Blue Sky Inc v Australian Broadcasting Authority;[192] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT);[193] Travelex Ltd v Federal Commissioner of Taxation;[194] and SZTAL v Minister for Immigration and Border Protection.[195]
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed: CIC Insurance Ltd v Bankstown Football Club Ltd.[196]
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions: Certain Lloyd's Underwriters v Cross.[197] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose: Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.[198]
The foregoing point was amplified by this Court in Prichard v M 6:8 Legal Pty Ltd.[199] 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. It is not 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.[200]
Further, s 18 of the Interpretation Act 1984 (WA) provides that in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether or not that object is expressly stated) shall be preferred to a construction that would not do so.
The orthodox approach when construing definitions in a statute is that the definition must be read into the relevant provision and then the provision must be construed.[201] As to the function of definitions in a statute, it should be remembered that their function is not to enact substantive law.[202] As explained in Kelly v The Queen,[203] the function is to provide an aid in construing the statute. Further:[204]

[181]

The parties addressed the majority of their submissions to the construction of the definition of 'public work' in s 2 of the PW Act, and to the context surrounding both this definition and the exclusion established by s 6(1) of the PD Act. In their respective written submissions filed before the hearing of the appeal, neither party dwelt on the language employed within s 6(1) itself and so neither party drew much support for their positions from the text in that sub‑section.
One aspect of the provision which the Court raised with counsel during the hearing of the appeal was the significance of the term 'right', as it appears in s 6 of the PD Act. The text of s 6(1) of the PD Act uses the term 'right' when identifying the central matter upon which the provision operates. The provision states that the PD Act is not to interfere with 'the right' which is held by the various named bodies. The term 'right' is used on several occasions within s 6(1) and s 6(2) of the PD Act. It appears in s 6(1), in the chapeau to s 6(2), in s 6(2)(a), and in s 6(2)(c). The term 'right' is also used in s 162(2) of the PD Act, together with the term 'entitlement', as earlier noted in these reasons. Section 162(2) operates to clarify that the prohibition on development without approval in s 162(1) does not limit or affect a 'right or entitlement under any other written law'.
In their primary submissions on appeal, neither party placed any particular emphasis on the use of the term 'right' within the legislation. However, in their written submissions filed with leave after the hearing of the appeal, both parties made brief submissions on the significance of the term.
The appellant preferred the view that the word was synonymous with 'power', noting that the language of s 6(1) merely reflected the language of the predecessor provision in the Town Planning and Development Act 1928 (WA).[206] Further, the appellant noted that the term 'power' was used within the PW Act, such as in s 9C and s 28, and submitted it would make little sense to construe 'right' in s 6(1) as meaning something other than a 'power'. The appellant also observed that the first respondent had not taken any point in the proceedings below as to any distinction between 'right', 'power' or, indeed, 'authority'.[207]
The first respondent, in his written submissions filed after the hearing of the appeal, emphasised that a 'power' to do something means only a lawful capacity to progress to the doing of that something. A local government, the first respondent submitted, may have a power to implement a particular public work, but if that power was subject to mandatory considerations or requirements, the local government would not have a 'right' to undertake the public work until satisfaction of those considerations or requirements.[208]
According to the first respondent, the effect of his submissions, if accepted, is that the appellant would only have a right to undertake a public work if that public work 'appears in the City's TPS 6', and s 6(2) and s 6(3) are met.[209] The submission that the public work must appear within the planning scheme is consistent with the first respondent's broad submission that there must be found within a statute or subsidiary legislation a distinct 'opting-in' to the public work regime, such as by authorising the entity to undertake the work identified in the definition of 'public work' or authorising a development as a 'public work'.[210]
The relevant source of the 'right' is not expressed within the terms of s 6(1) of the PD Act. It is reasonable to conclude, in my opinion, that the source of the 'right' must be statutory in nature, whether in a substantive enactment or in subsidiary legislation. Plainly, a mere contractual right would not suffice. I did not understand either party to submit otherwise. Of course, it must, necessarily, be a 'right' connected with the undertaking, construction or provision of 'public work'.

[185]

There are three broad features of the definition of 'public work' in s 2 of the PW Act which should be noted.
First, the definition has been, and remains following the 2023 Amendment Act, an exhaustive one.
In its previous form, the definition used the composite phrase 'means and includes'. The use of this phrase has been criticised in a leading text on statutory interpretation on the basis that the two expressions are incompatible with each other.[214] In its current form, the phrase 'means and includes' has been removed, such that the definition is now undoubtedly an exhaustive one.
Second, since the original enactment of the PW Act in 1902, a consistent approach has been adopted by which the definition selectively deems certain developments to have the status of public works (now set out in sch 1 to the PW Act), and in effect excludes those not so identified. As with the definition of 'public work' in s 4 of the PD Act, the legislative approach has not been to describe or explain the term 'public work', but rather to designate certain work as having that character. Indeed, the present definition of 'public work' in s 2 of the PW Act has introduced an additional designation, through s 2A of the PW Act, which expressly permits works to be declared as public work by the Governor.[215]
The approach adopted within the definition of 'public work' in s 2 of the PW Act remains narrow and specific in the structural sense just mentioned.
Third, the definition of 'public work' has been, and remains, a definition which is adopted in several planning and related statutes. The definition is picked up by various provisions within the PD Act and the LA Act.
When these features of the definition are taken together, it can fairly be said in my view that a narrow and specific approach to the structuring of the definition has been preferred by the legislature. The term is not defined at large but rather by reference to designated matters to which the legislature has ascribed the necessary public status. This approach has been adopted, according to the first respondent, because the status of work as 'public work' under this definition carries with it important ramifications.[216] I respectfully agree. The fact the definition is employed in several statutes emphasises this point.
Further, when construing the individual items in sch 1 to the PW Act, the whole of the terms of that schedule must be considered. In particular, a constructional approach to items 1 and 2 to sch 1 which would diminish the significance and operation of the remaining provisions, or render them otiose, should not be preferred.

[189]

In McKay, the issue which was central to the resolution of the matter was the meaning of the term 'authorised' in s 161(1) of the LA Act. In particular, whether the term meant that the relevant body must have an unqualified and unconditional presently enforceable lawful right to carry out the work, or whether the term merely connoted the existence of a legislative sanction to undertake the relevant public work, whether or not that sanction was qualified by the need to obtain further approvals or permissions before the work was carried out.[219]
The Court had regard to the statutory context and history of the provision in question, and to the ordinary and natural meanings of the term 'authorised', in assessing the proper construction. Martin CJ observed that the object of the provision, when enacted, was to 'substantially expand the range of entities having the power to take land compulsorily'.[220]
Martin CJ, with whom Steytler P and Pullin JA agreed, concluded that the latter meaning was to be preferred.[221] That is, the word 'authorised' did not require the existence of an unqualified, unconditional presently enforceable lawful right to carry out the work before the power to acquire could be exercised.
One of the principal reasons his Honour reached this conclusion was that various forms of permissions or approvals would be required in a very large number of cases involving the carrying out of a public work. A construction of the provision, according to his Honour, which would constrain the power to acquire land until each and every permission or approval required to complete the planning, development and construction of a project for carrying out a public work was obtained or satisfied, would significantly constrain and inhibit the exercise of the powers conferred by the provision.[222]
His Honour examined the legislative history of the provision, and its context in relation to the PW Act, and recognised the need to adopt a construction which accorded with a coherent legislative scheme.[223] His Honour concluded:[224]

[195]

Item 2 of sch 1 represents the successor to par (b) of the definition as it previously stood, but contains material differences. The legislation now employs the term 'under a special Act' rather than 'by special Act', and extends to 'any other works authorised under an Act', rather than 'any work whatsoever authorised by any Act'.
Whether the change of the term 'by' to 'under' in this provision was intended to alter the scope of the provision is not immediately apparent. The term 'under' may be said to have a broader reach than the term 'by', but the former word is also said to be capable of 'varied relational reach' depending on its context.[228] The secondary materials relating to the 2023 Amendment Act do not explore the issue, other than to observe the drafting has been modernised.
Certainly, the removal of the word 'whatsoever' in item 2 may be taken as a drafting device to limit the scope of the provision.
The more critical aspect of the provision which calls for analysis is the relationship between 'Railways authorised under a special Act' and the reference to 'any works authorised under an Act'. I will refer to these as the first and second limbs respectively. The primary judge rejected the component of the appellant's contention that relied on par (b) (now item 2) of the definition as it previously stood. Her Honour concluded that the phrase 'or any work whatsoever authorised by any Act' was limited to work relating to railways. If the position was otherwise, her Honour found the opening words of par (b) (now item 2) would be otiose, as would the entirety of par (a) (now item 1).
The appellant criticises the primary judge's approach to the construction of par (b).[229] The appellant submits that the second limb of par (b) is necessarily directed to something other than a railway and to read down the second limb would give it no work to do. To the extent to which the appellant's submission rest on the inclusion of the word 'whatsoever' in the second limb, the argument falls away given the removal of that term by the legislature. But the appellant's argument in this regard does not rest solely on the inclusion of that term. The appellant maintains there is no indication from the text that the second limb should be confined to the first limb, and no relevant genus can be discerned upon which the ejusdem generis maxim might fasten.[230]
In my opinion, item 2 as it now stands should be construed to ensure, to the extent possible, the second limb thereof does not render either the first limb of item 2, or item 1, as otiose. That would be an unlikely objective intention to attribute to Parliament. Whilst there may be overlap between some of the items in the schedule, it is most unlikely that there would have been an intention to establish a large overlap between item 1 and item 2. Yet this is a result which the appellant's construction would produce. Rather, the structure of the definition which is more likely to have been intended is to confine item 2 to matters connected with railways, rather than to include a broad second limb which is uncontrolled by subject matter or by context.
The removal of the term 'whatsoever' and the inclusion of the phrase 'any other works', by reason of the 2023 Amendment Act, are strongly supportive of an objective intention to this effect.
On this approach, item 2 extends to railway construction authorised under a special Act, that is, under a specific Act of Parliament (the first limb). Section 96(1) of the PW Act provides that railways shall be made 'only under the authority of a special Act'. That does not exclude the authorisation of works connected to railways under an enactment which is not a special Act, which would be caught by the second limb of item 2. Such works might also be caught by item 31 of sch 1, which extends to works which are incidental or ancillary, but the possibility of some overlap in this regard does not undermine the force of the construction. As I have noted above, I would accept there may be some degree of overlap between the items in sch 1 to the PW Act.

[199]

I have reached this view because I consider the inclusion of the term 'right' in s 6(1) of the PD Act should be attributed some significance when construing the provision, rather than treating the term as merely synonymous with the grant of a 'power' or the provision of 'authority'. The legislature may be ascribed an intention to require that the 'right' by which s 6(1) is engaged should be capable of identification with clarity and should be distinctly given. Further, even if the term 'right' in s 6(1) of the PD Act is to be construed as synonymous with the term 'authority', I would nonetheless conclude that the provision, when properly construed, requires the identification of a specific statutory source of power to undertake the works in question.
This constructional approach is thus not driven solely by the inclusion of the term 'right' in the provision, which, as I have noted, is used on more than one occasion within s 6(1) and s 6(2) of the PD Act. The construction is founded on several indicia in the text and the scheme. The construction is supported by the structure and terms of the definition of the term 'public work' in s 4(1) of the PD Act (and the definition of that term in s 2 of the PW Act) and, importantly, the context and purpose of the provision.
First, the task of construing the exemption found in s 6(1) of the PD Act, which requires resort to the definition of the term 'public work' in both s 4(1) of the PD Act and s 2 of the PW Act, must be undertaken with due regard to the existence of an interrelated legislative scheme. The process is not to be approached in a vacuum. It is notable that the detailed definition of 'public work' in the PW Act plays an important part in the broader regime concerning planning and development matters, given the definition is adopted by several statutes.
It is thus proper for this Court to endeavour to construe those regimes so as to produce a sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.[231] This point has been put in the following way by decisions of this Court:[232]

[201]

Second, it is of significance to the construction exercise that the legislative approach to the concept of 'public work' is, and has been, to define that term in a narrow and specific manner, rather than to afford the term an expansive or descriptive meaning. This is evident from the structure of the definition of the term in s 4(1) of the PD Act. It is also evident from the structure of the definition of the term in s 2 of the PW Act. Historically, the legislative approach has been consistent in this regard.
Third, the definition of 'public work' in s 4(1) of the PD Act allows three pathways for the identification of 'public work'. As noted, the first pathway is by reference to the term defined in the PW Act. The latter two are by reference to developments designated under a region planning scheme or a local planning scheme. As earlier noted, both forms of planning scheme have force of law. Consistently with this, a local government is empowered to introduce into a local planning scheme (such as TPS 6) the identification of 'public works', through the operation of s 69(1)(b) and cl 5 of sch 7 to the PD Act. I have earlier set out the terms of cl 5.
The ability of a local government to pursue the pathway under s 69(1)(b) and sch 7 does not preclude other avenues being followed by a local government to undertake, construct or provide public work. That is, I do not consider this is an exclusive pathway. However, it is relevant to the process of construction of s 6(1) of the PD Act that the legislature has designated a pathway which is of particular utility for local government authorities proposing to undertake large scale developments outside the normal planning and development requirements imposed by their own planning scheme.
In my view, there is force in the first respondent's submission that the Court should not favour a construction which would have a tendency to subvert or undermine the legislative scheme in this respect.
Fourth, an approach to the construction of the 'public work' exemption in s 6(1) of the PD Act should recognise the provision carries important ramifications. Upon the exemption being engaged, subject to satisfaction of the requirements of s 6(2) and s 6(3), the planning and development requirements which would otherwise be applicable are 'disengaged', to use the term favoured by the first respondent.
Those ordinary requirements are in effect replaced with a statutory obligation to have 'due regard' to planning principles and to 'consult' with the local government and the WAPC, as the case may be.
Thus, the benefit of the exclusionary operation of s 6(1) is made subject to subsections (2) ‑ (4), which require that the 'right' to undertake, construct or provide the public work (or to take the land) is to be exercised having due regard to the 'purpose and intent' of any planning scheme, the orderly and proper planning of the locality, and any advice provided by the responsible authority in the course of the consultation under s 6(3).
Subject to the matters just mentioned, the relevant body is able to exercise the right to undertake, construct or provide the public work, and to take land for the purposes of that public work, unconstrained. The implications of an engagement of the 'public work' exemption may therefore be significant, with serious consequences for third parties who may be affected by the actions of the relevant body.
The provision should be construed with appropriate regard to this context.
Fifth, the language employed with s 6(2) and s 6(3) of the PD Act provides some indications of the role played by the exemption. In particular, the requirements in s 6(2) and s 6(3) presuppose that the government body seeking to exercise the 'right' will have 'formulated' a 'proposal' for the public work, or for the taking of the land. The obligation to consult with the responsible authority arises at this juncture, that is prior to the exercise of the right. The regime assumes the existence of a proposal and also requires a process for consultation.
The language of s 6(3) of the PD Act also indicates there is a temporal connection between compliance with the process in s 6(2) and s 6(3), and the exercise of the right. Both s 6(2)(a) and s 6(2)(b) require that there be due regard to the planning scheme 'at the time' when the right is exercised. Further, s 6(2)(c) and s 6(3) require that the consultation process necessarily be undertaken before the right is exercised.
The inclusion of these matters, and the structure of the provision, tends to suggest the right in s 6(1) of the PD Act is directed at public works having a sufficient degree of size and importance that a proposal would be formulated in respect thereto. That is to say, the regime is directed at works of some significance, not being matters of a minor nature.[233]
Sixth, it is evident the statutory regime seeks to further two broad policy objectives. The requirements of the detailed regime in the PD Act, and the planning schemes made thereunder, are intended to provide for an efficient and effective land use planning system in the State, and to promote the sustainable use and development of land in the State.[234] The 'public work' exemption in s 6(1) of the PD Act recognises that there is a type of work which is to be undertaken by governmental bodies, the nature of which is such that it should not be directly subject to the express requirements of the ordinary planning and development regime.
Given the broader purposes of the PD Act, it is not to be thought that Parliament intended this exclusionary provision be too readily engaged. Adopting an overly broad construction to the exemption in s 6(1)(a) of the PD Act, such as in the manner proposed by the appellant, would provide a very wide basis upon which local governments could effectively authorise 'public work', with no, or no sufficient, controls in place to assess or limit that authority. It is unlikely to have been the intention of Parliament, given the text and structure of the provisions to which I have referred, and the serious implications which arise once work is designated as 'public work' in the relevant sense, to permit a generally worded empowering statutory provision to engage the exemption in s 6(1)(a) of the PD Act, and so to permit works to be undertaken without regard to the usual planning restrictions, much less to thereby give authority to take land for that purpose.
Seventh, when considering the scope of the definition of 'public work' in s 2 of the PW Act, in the context of the definition in s 4(1) of the PD Act and the substantive operation of s 6(1) of the PD Act, the orthodox approach is that the definition of 'public work' must be read into s 6(1) of the PD Act and s 6(1) must then be construed.[235]
Thus, the focal point for the construction exercise is s 6(1) of the PD Act, rather than the definition of 'public work' in s 2 of the PW Act. Neither party on this appeal suggested otherwise.
Once this process is followed, it can be seen that the approach adopted by the legislature is to retain a high degree of control over the works or developments which may be considered appropriate to be 'public works' for the purposes of the legislation. A distinct right must be identified, having a statutory basis, which sanctions the undertaking of the work in question as 'public work'.
Eighth, for the reasons earlier set out, I consider the scope of item 2 in sch 1 to the PW Act is narrower than submitted by the appellant, and should be confined to the subject matter of railways. To hold otherwise would give the second limb of the provision an extremely wide field of operation, largely rendering item 1, as well as the other items within sch 1, otiose. That would be an unlikely construction of the provision in my view.
Ninth, item 1 of sch 1 of the PW Act necessarily requires an identification of the statutory basis on which the governmental body maintains it is authorised to undertake the works in question. The language employed in the provision is quite clear - 'authorised under this Act or any other Act'. Indeed, many of the other categories of 'public work' described in sch 1 to the PW Act are matters which either expressly,[236] or necessarily given their subject matter,[237] require a statutory basis. To the extent it might be suggested that no legislative authority is expressly required by the terms of items 7, 8 and 10, for example, it must be remembered that task before the Court is to construe s 6(1) of the PD Act, rather than to construe the definition of 'public work' in the PW Act in isolation.
This is an important matter to bear in mind, given the language of s 6(1) of the PD Act and the identification by the legislature of a 'right' which is to be freed from the normal interference imposed by the PD Act.
It follows from the foregoing, that the appellant may only engage the exemption by reference to items 5, 14, 25 and 31 of sch 1 of the PW Act if it is able to identify an applicable 'right' to undertake those works.
Tenth, when the foregoing matters are considered together, it follows in my view that a government body may not permissibly engage the 'public work' exemption in s 6(1) of the PD Act by identifying only the existence of a generally worded statutory provision.
The appellant maintains it is empowered to undertake or construct the Proposed Development by reference to its general statutory function as a local government, and by reference to its executive function.[238] These functions are prescribed by s 3.1(1) and s 3.18(1) of the LG Act. On any view, the general function of the appellant to provide for the 'good government of persons' in its district, and the executive function which permits the appellant to provide 'services and facilities', are very non-specific provisions.
The provisions relied upon by the appellant provide no measure of control over the types of works which, on the appellant's suggested approach, a local government could undertake outside the planning regime which would otherwise be applicable. Almost any form of local government work would seem to qualify. I cannot accept that a construction of s 6(1) such as this would be consistent with the purposes and objects of this regime.
The appellant has not identified any specific statutory basis for the Proposed Development, such as the statutory provisions to which the primary judge referred at [103] of the Primary Reasons, and which I have identified at [230] above. It is instructive, for comparison purposes, to examine one of these examples.
Under the Port Authorities Act 1999 (WA), a port authority is expressly empowered to 'carry out port works or arrange for port works to be carried out',[239] and to 'provide, manage and operate port facilities or arrange for port facilities to be provided, managed and operated',[240] for the purpose of performing its functions under the legislation. The regime defines a port authority to be a local authority within the meaning of the PW Act for this purpose.[241]
The Port Authorities Act 1999 (WA) then expressly addresses the application of planning laws to a port authority.[242] Section 38 relevantly states as follows:

[208]

Returning to the five questions posed by her Honour, the second question was an assessment of the meaning of 'civic use' in TPS 6 and, in particular, whether, as a matter of construction, it means any governmental purpose.[250]
The third question was to identify what Proposed Development had been approved by the City.[251]
The fourth question was to assess the 'use' or 'uses' of the Proposed Development, in accordance with the principled approach her Honour identified in response to the first question above.[252]
The fifth question was specific to the green waste grinding aspect of the challenge, and involved an assessment as to whether this was an existing use such that development approval could be given even if it was a prohibited use.[253]
Her Honour proceeded to address these questions in sequence, commencing at [168] of the Primary Reasons. I will discuss her Honour's reasoning process in more detail below. Her Honour's conclusions on the issues are found at [233] ‑ [237] (first question), [266] and [273] (second question), [311] ‑ [315] (third question), [364], [365] and [381] (fourth question) and [380] (fifth question) of the Primary Reasons.
In essence, the primary judge found that the Proposed Development which was approved included the Marked Plan, such that approval was given by the City to engage in compost manufacturing and soil blending in the terms described in category 67A of the Environmental Protection Regulations 1987 (WA) (EP Regulations).[254] This issue is the subject of proposed ground 6.
Further, the primary judge concluded that the Proposed Development involved multiple uses.[255] Those uses were a 'civic use', a 'kennels' use (namely the animal holding facility), an 'industry noxious' use (namely the green waste grinding facility), and a use relating to the Waste Transfer Facility which was not a 'civic use' but which her Honour did not otherwise characterise.[256]
The primary judge held that, in approving the Proposed Development, the City purported to approve each of the above uses, noting that the 'kennels' use and the 'industry noxious' use were both prohibited in the 'General Rural Zone' under TPS 6.[257]
In the result, as the approval included prohibited uses outside the power of the City to grant approval under TPS 6, the primary judge ordered that the Development Approval be set aside.

[209]

By ground 3, the appellant contends that the primary judge erred in law in concluding that the whole of the Proposed Development was not capable of being properly classified as a 'civic use' within the meaning of TPS 6. The appellant maintains that the Proposed Development 'was capable' of being approved on this basis. Grounds 4 and 5 are expressed to be further or alternative grounds to ground 3.
By ground 4, the appellant asserts an error of law on the part of the primary judge in concluding that part of the Proposed Development (the animal holding facility) was properly classified as a 'kennels' use within the meaning of TPS 6, and thereby a prohibited use. The first respondent contends, by the first contention in the notice of contentions, that if the proper classification of this part of the Proposed Development is not 'kennels', then it should properly be classified as a use‑not‑listed under cl 3.4.2 of TPS 6.
By ground 5, the appellant asserts an error in fact and in law in concluding that the green waste grinding facility was to be classified as an 'industry noxious' use within the meaning of TPS 6 and thereby a prohibited use. The first respondent contends, by the second contention in the notice of contentions, that if the proper classification of this part of the Proposed Development is not 'industry noxious', then it should properly be classified as an industry use, either 'industry - light' or 'industry - general', both of which are prohibited under TPS 6. Allied to this, by the third contention, the first respondent contends that to engage the non-conforming use provisions, the previous use must be a use equivalent to the proposed use approved, which in the present case must include composting (which was previously denied approval by the City).
Proposed ground 6 asserts that an error of law arises from the primary judge's conclusion that the City's Development Approval permitted compost manufacturing and soil blending, which conclusion was reached by her Honour by reference to the notations on the Marked Plan.
There are three further contentions advanced by the first respondent, each of which contends that part of the Proposed Development should have been classified as a particular use which was prohibited. These parts are the Mechanical Workshop,[258] the chemical mixing activity,[259] and the waste transfer station.[260]

[241]

The appellant asserts that the primary judge approached the issue of use classification as if her Honour was the merits decision-maker at first instance. The City contends the primary judge, in effect, approached the question by undertaking the assessment process herself, rather than assessing whether it was open to the City, as the decision‑maker, to have regarded the Proposed Development as falling within one or more use classifications capable of approval.[275]
The appellant submits that in cases in which the decision-maker gave no reasons for decision, the onus is on a party in the position of the first respondent to negative or displace all paths of reasoning which were reasonably or rationally open to the decision-maker for its decision.[276] The appellant cites the decision of the New South Wales Court of Appeal in Parramatta City Council v Hale[277] in support.
The appellant contends that the role of a court on an application for judicial review is confined to determining whether it has been established that it was not open to the primary decision-maker to grant the approval it did.[278] The appellant submits that established authority supports this approach, relying on Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd.[279]
Further, the appellant advances the allied proposition in its written submissions that questions of proper use classification, particularly insofar as they involve issues of whether a particular activity is incidental to, or part of, a particular use, involve issues of fact and degree 'on which reasonable minds may differ'.[280] The appellant cites the decision of the High Court in Lizzio v Ryde Municipal Council[281] and the decision of the Full Court of the Supreme Court of Western Australia in Re Minister for Planning; Ex parte City of Canning[282] in support of this proposition.
Senior counsel for the appellant posited in argument that the 'use' classification question was not a jurisdictional fact, particularly because matters of fact and degree are involved in such an analysis, involving an evaluative judgment.[283]
On the appellant's approach, there would be no single, correct answer as to the classification of a 'use' or 'uses' within a particular development proposal. Rather, there would be a range of answers, such that if a classification was reasonably open, the decision would not be amenable to judicial review.
The first respondent strongly disputes the central proposition advanced by the City to the effect the use characterisation process is a matter for the City to determine.[284] The first respondent emphasises the roles played by cl 3.4.1 and cl 3.3.4 of TPS 6, and points to the requirement of 'reasonableness' (as a minimum criterion) found in cl 3.4.2 of TPS 6.[285]

[242]

Whether or not the determination of use classifications under TPS 6 is properly characterised as a 'jurisdictional fact' is plainly an important threshold question to address before the resolution of the applicable grounds raised by the appellant and the first respondent's contentions. I propose to address the point by first clarifying the basis on which a 'jurisdictional fact' is to be assessed, then addressing the authorities upon which the appellant relies, and finally undertaking an analysis of the legislative scheme.
Whether or not a matter is properly characterised as being a 'jurisdictional fact' is a question of statutory construction.[286] This necessitates attention being given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional: Woolworths Ltd v Pallas Newco Pty Ltd.[287]
As explained by Buss P and Murphy JA in Samsung C&T Corporation v Duro Felguera Australia Pty Ltd, where the criterion of fact is characterised as jurisdictional, and that criterion is not satisfied, a decision purportedly made in exercise of the power will have been made without the necessary statutory authority required of the decision‑maker.[288]
In City of Enfield v Development Assessment Commission,[289] the High Court had cause to consider a judicial review application arising from the operative legislation in South Australia which regulated planning and development matters. A question arose as to whether a development plan was for 'special industry' and, if so, it would be prohibited as a 'non-complying' development. The Development Assessment Commission treated the development as not being for 'special industry', a view which Debelle J assessed for himself on the evidence before him at first instance, having taken the view the question was a jurisdictional fact.
The High Court agreed with that approach, as explained in the plurality judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ. The plurality observed:[290]

[244]

The statutory regime applicable in the present case thus calls for some examination. Prior to that, I should address the authorities on which the appellant relies, namely Lizzio, City of Canning, Hale and Gull Petroleum.
The appellant's reliance on Lizzio does not assist its position, and may readily be dealt with. The passage from the judgment of Gibbs CJ in Lizzio which is relied upon establishes that questions of proper use classification are issues of fact and degree.[291] So much may be accepted. The appellant says further that these are the types of issues on 'which reasonable minds may differ'.[292] That phrasing is not employed by Gibbs CJ, nor does it follow from his Honour's reasons. Further, as will be seen, to describe something as an issue of fact and degree does not equate to a conclusion that the issue is discretionary in nature.
The appellant cites City of Canning in support of the same proposition. The development application in that case was for a 'Health centre incorporating medical consulting rooms and a pharmacy. Existing TAB'. Under the applicable planning scheme, given the zoning of the land in question, the approval of a 'health centre' was in the discretion of the council. However, a 'pharmacy' was not a discretionary use. In fact, a 'pharmacy' was a 'shop', and was designated as a particular use that was not permitted unless determined by the council to be incidental to a predominant use and approved as such by the council. The council refused the development application on the basis the pharmacy was not an incidental use to the medical complex, but could operate independently.[293]
A critical point dealt with by the Full Court (Kennedy, Murray & Anderson JJ) in City of Canning was the scope of an appeal right to the Minister from a decision of a council 'exercising a discretionary power'. All members of the Full Court concluded that the question as to whether a pharmacy was incidental to the use for the purposes of a medical complex was not discretionary in nature - it was a question of fact and degree.[294] Murray and Anderson JJ both relied on the judgment of Gibbs CJ in Lizzio in this regard. The right of appeal therefore did not extend to the determination by the council as to whether the use was a use for incidental purposes.
Anderson J's reasons on the issue were as follows:[295]

[246]

Anderson J's reference to 'opinions' differing on such matters was made en passant, does not form part of his Honour's reasoning, and plainly does not detract from his Honour's overall conclusion that the use classification question in that case was one of fact and degree and not discretionary in nature.
The appellant also cites the decision of the New South Wales Court of Appeal in Hale. The appellant relies upon that decision to support a rather broad submission that, where no reasons are provided, the onus is on a party in the position of the first respondent 'to negative or displace all paths of reasoning which were reasonably or rationally open' to the decision-maker for its decision.[296] The passages relied upon by the appellant are from the decision of Moffit P (340 and 344 ‑ 345). I will turn to those passages once I take a moment to explain the context.
In Hale, a company associated with the Parramatta Leagues Club made application to the council for consent to use land for the purposes of a sports stadium. Use of the land for the purposes of a sports ground was permissible with consent, but use as an entertainment centre was prohibited. The council considered the application at a special meeting, with much of the meeting focused on the numerous conditions recommended by the council's planner and engineer. Many of the conditions emanated from the Traffic Authority and the Department of Main Roads. The council approved the application by a majority.
The challenge to the decision focused on an alleged failure to comply with a statutory provision which required the council to have regard to relevant matters including the impact of the development on the environment and means that might be employed to protect the environment against harm. The legislative provision in focus in Hale provided that the authority 'shall take into consideration such of the following matters as are of relevance to the development', with such matters including 'the impact of that development on the environment'.[297]
In this context, Moffit P held as follows:[298]

[253]

[54] In that case there was evidence that only one in four customers who bought petrol would make a purchase in the convenience store and the convenience store use was presented to the Tribunal as an independent use which would take advantage of the trade in petrol purchases.

[55] While there was no such evidence in this case it seems to me that the development application should appropriately be classified as one for distinct uses on the same site, being 'shop' in the area marked as such on the plans and in the fast food sales area and 'service station' in that part of the site to be used as such.

[56] There was no objection to the classification of the 'shop' area as such and nor was there any objection to the classification of the service station area as such if the fast food sales area was not lumped in with it. Moreover there could not, I think, have been any objection to the fast foods sales area being classified as giving rise to a 'shop' use if it had operated from separate, but adjacent premises. The sole problem consequently centred around the fact that the fast food outlet shared a room and cashier's desk with the area used to operate the service station. That fact cannot, in my opinion, have the result that the fast food sales use which, had it been carried out from separate premises, would have been classified as a 'shop' use should no longer be classified as such. Nor can it have the result that the service station use has been so altered as to mean that it should no longer be categorised as such. The fact that the fast food outlet and service station share a cashier does nothing to alter the character of the fast food outlet as that of a shop or that of the service station as a service station. Nor does the fact that fast food is sold from a site used also for a service station alter the character of either the fast food outlet or the service station. There remain, in my opinion, two distinct uses, each maintaining its essential characteristics and neither of which subserves the other (cf Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 217). (emphasis added)

[57] Also, the fact that the definition of a shop excludes a service station has only the purpose of narrowing the very wide definition of a 'shop' and was not intended to preclude that use being conducted as such on the same site as a service station where no hybrid and distinct use results.

[58] I am consequently not persuaded that there was any jurisdictional error on the part of the Town's Council. It was open to it to approve the development on the grounds that each of the proposed uses was an AA use under the Scheme and that there was no third and distinct use falling outside the definitions of 'shop' and 'service station'. (emphasis added)[305]

[254]

His Honour's reasons demonstrate that he considered the development application in that case should be classified as being for distinct uses, being a 'shop' and a 'service station' ([55]). The designation of those uses was not altered by the fact they were being undertaken on the same premises with some shared facilities ([56]). There remained two distinct uses, neither of which subserved the other, and there was no third, distinct use ([56] ‑ [57]). It was for these reasons the development application was capable of being approved by the council in that case ([58]).
The approach adopted by Steytler J was to undertake the assessment as to the characterisation of the development for himself, as appears at [55] of his Honour's reasons. The references by his Honour to whether 'it was open' to the council to categorise the application in a particular way ([48] and [58]) do not necessarily reflect any conclusion that use characterization questions were a matter to be assessed only by the local government authority. Those are references to the availability of the power to approve the development, upon it being found the relevant use or uses were permissible, and not prohibited. As appears in [58], his Honour was first concerned to determine whether there had been any 'jurisdictional error on the part of the Town's Council'.
To at least some extent, then, I agree with the submission advanced by the first respondent that Steytler J did not expressly endorse a principle that use characterization questions were 'in the eye' of the local government authority.[306]
However, it is notable that both his Honour and the trial judge in Gull Petroleum adopted the language which had been used in an earlier decision of the New South Wales Court of Appeal, in Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc.[307] The approach adopted in that earlier decision was to enquire whether the decision of the council was 'devoid of plausible justification'.[308]
To the extent to which the reasoning of the Court in Gull Petroleum proceeds in reliance on that earlier New South Wales decision, it should be observed that Mittagong Mushrooms has been authoritatively reconsidered in New South Wales and is no longer applied in that jurisdiction. Some explanation of the authorities in that jurisdiction is therefore appropriate, although we were not taken to these authorities by either counsel.
In Pallas Newco, the New South Wales Court of Appeal, comprised of five members, considered whether the earlier decisions of that Court in Londish v Knox Grammar School[309] and Mittagong Mushrooms should be reconsidered and departed from.
The decision in Londish, which had been affirmed in Mittagong Mushrooms, had been understood to affirm a line of authorities in the planning jurisdiction to the effect, 'if the opinion formed by the decision-maker was not vitiated by irrelevant considerations and one which was reasonably open to make, the court will not review the substance of the decision'.[310]
In Mittagong Mushrooms, Meagher JA described the applicable test, for the purposes of a challenge to a land use determination by a local council under the applicable legislation, as being whether the decision was 'devoid of plausible justification'.[311] Mason P, who agreed with Meagher JA, considered that the conclusion reached by the council was 'reasonably open to it'.[312] Sheller JA was similarly satisfied the decision was 'reasonably open' to the local council and within its discretion.[313]
The approach adopted in both Londish and Mittagong Mushrooms no longer attracts support in New South Wales. In Pallas Newco, the majority of the New South Wales Court of Appeal held the earlier decisions should not be followed.[314] The decision in Pallas Newco has been consistently followed thereafter, including in Issa v Burwood Council;[315] Bardsley-Smith v Penrith City Council;[316] Cheetham and Anor v Goulburn Motorcycle Club Inc & Ors;[317] and Lahoud v Willoughby City Council.[318] We were not taken to these authorities by either party.
As to the reasoning of the Court in Pallas Newco, it is sufficient for present purposes to refer to the decision of Spigelman CJ. His Honour identified the scope and purpose of the planning regime as indicative of a conclusion that the proposed 'use' was a jurisdictional fact. The scope and purpose of the regime was to create zones and identify permissible and prohibited 'uses' within those zones, so as to segregate 'uses' from each other and to concentrate particular 'uses' within specific areas. This process of 'segregation and concentration' served a variety of social and economic purposes.[319]
A further indicia identified by his Honour was the use of the term 'prohibition' and 'prohibited development' within the regime, and the statutory implications of a development being prohibited. The terminology employed 'carried a level of force more consistent with a finding of jurisdictional fact' than with the conferral of an ability to err within jurisdiction.[320]
Pointing against a conclusion of 'jurisdictional fact', his Honour referred to the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description. However, his Honour recognised that the manner in which the classification is expressed will be important. By way of example, where an environmental planning instrument required the assessment of a wide range of matters of considerable complexity involving the formation of value judgments, the decision-making process was unlikely to involve a jurisdictional fact, according to his Honour.[321]
His Honour noted the fact that a particular use of land involves matters of fact and degree will not preclude the development 'use' being characterised as a jurisdictional fact.[322]
His Honour's analysis of these issues ultimately led him to conclude that the relevant classification under the planning regime was jurisdictional.[323] Accordingly, his Honour held that the primary judge in that case was required to determine the case on the basis of the evidence before the court and was not confined to the evidence before the planning body, being the primary decision‑maker. The court was nonetheless entitled to give weight to the opinion of the primary decision-maker.[324]
The approach presently applied in the New South Wales jurisdiction was put as follows by Sackville AJA in Bardsley‑Smith:[325]

[256]

The planning regime under consideration in Pallas Newco and Bardsley-Smith, and the other authorities mentioned above, was the regime in operation in New South Wales. The present appeal obviously concerns the Western Australian regime and the terms of TPS 6, to which I now turn.
Under the PD Act, the approval of developments in a local government district is controlled by the relevant local government authority (and, where applicable, the WAPC). Approval of developments is regulated by the applicable local planning scheme. As in the present case, any development must comply with the provisions of the scheme.[326] One of the critical approval requirements is whether a development satisfies the zoning and use criteria. As early noted in these reasons, zoning and use requirements form part of all local planning schemes by reason of the deeming provisions in the PD Act and the PD Regulations, and by reason of the model provisions in sch 1 of the PD Regulations which are to be incorporated therein.
Under the PD Act, developments which fall within the scope of a planning scheme are prohibited from being commenced or carried out in the absence of approval, by reason of s 162. I have set out the terms of this provision earlier in these reasons. There are civil and criminal consequences which arise from a failure to comply with s 162 of the PD Act, which can be seen in pt 13 of the legislation. Where the failure is on the part of a local government, s 211 permits an aggrieved person to make representations to the Minister which, among other things, can lead to an order being issued to the local government (s 211(4)). In other cases, the local government may issue a written direction to the person who is undertaking the development in contravention of a planning scheme (s 214(2)), failure to comply with which is an offence (s 214(7)).
There is a statutory injunction remedy found in the PD Act, which empowers the Supreme Court to grant an injunction to restrain a development which contravenes, or is likely to contravene, an interim development order, a planning scheme, or conditions imposed by a local government (s 216).
A contravention of a planning scheme, and the commencement, continuation or carrying out of any development otherwise than in accordance with a planning scheme, is an offence (s 218(a) and (b)). The general penalty for such an offence is a maximum fine of $200,000 with a further fine of $25,000 for each day during which the offence continues (s 223).
The determination of 'use' classifications can thus be seen as an integral aspect of the development approval process in Western Australia.
Indeed, the legislation is sufficiently similar, in terms and purpose, that the approach adopted in Pallas Newco ought equally apply in the present context. Further, as an intermediate appellate court, this Court should have regard to, and generally follow, decisions of other intermediate appellate courts of comparable jurisdiction with reference to substantially similar legislation, unless satisfied the decisions are plainly wrong.[327]

[260]

(a) Each development proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way.[330] The question is one of fact and degree.[331]

(b) Land may be used for more than one use, and more than one activity. It may be that a particular use is merely 'incidental to' another land use. This requires the identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use.[332]

(c) When assessing whether a particular land use is incidental to an approved land use, as opposed to being an independent use requiring separate approval, attention must be directed to the nature of the activity, its scale and the regularity and extent of the activities involved.[333]

(d) A single development application can be considered for different and distinct uses on the one site and it is important not to lump independent uses into one dominant use for the purpose of classification. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is irrelevant to enquire which of the multiple purposes is dominant.[334]

(e) If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the planning scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the planning scheme, then there should be no such categorisation.[335]

(f) Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them, there is no reason why the categorisation of each use should be any different than if each had been effected from its own site.[336]

(g) If either use is unacceptable within the particular location it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site.[337]

(h) Further, where the land is used for activities, processes or transactions of widely differing kinds, and those activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose.[338]

[267]

As noted above, the premise of ground 3 is incorrect. The burden on the appellant is to demonstrate that the primary judge erred in her conclusion that the Proposed Development involved multiple uses and that all of those uses did not fall within the meaning of 'civic use'.
As to this, the appellant asserts on appeal that the Proposed Development is 'of a single or integrated Operations Centre or Operations Centre and Waste Transfer Facility'.[346] It is said that the unchallenged evidence below was that the development would be a 'composite use' and that all of the activities to be carried on at the Operations Centre would be carried on as part of a single enterprise.[347] By ground 3, the appellant implicitly contends that the primary judge erred in approaching the 'use' classification question other than on the basis there was one composite use inherent in the Proposed Development.
Ultimately, the appellant contended that all of the uses of the Proposed Development would fall within the meaning of 'civic use' because they were all 'other purposes', further submitting that the genus established by the definition was 'governmental purposes'.[348] The appellant submits the primary judge construed the term ejusdem generis and incorrectly read down the meaning of the words 'other purposes'.[349]
The first respondent submits that the appellant's arguments overlook the operation of cl 3.4.1, which it says requires the proposed development to be characterised under the most specific of two or more possible use categories.[350] The first respondent further submits that the conclusion that the Proposed Development does not constitute one composite use is incontestable, given the various activities are 'obviously not one use, or part of one use'.
The first respondent emphasizes the inclusion within the Proposed Development of the following matters - 'waste transfer, dog pound, administration, chemical mixing, and vehicle servicing'.[351] The first respondent's submissions continue:[352]

[272]

Further, as is evident from authorities such as Foodbarn Pty Ltd v Solicitor-General[357] and Lizzio, which I have explained at [525] above, it is important not to aggregate independent uses which form part of a development into one dominant use for the purpose of a classification exercise. Where the whole of the premises is to be used for two or more purposes, none of which can properly be said to subserve the others, it is irrelevant to enquire which of the various purposes is dominant. Moreover, where the character of each use remains unaffected by the fact they are being undertaken on one site, the classification exercise should be no different than if each use was undertaken from its own, separate site. The decision of the Full Court in Gull Petroleum provides a good example of such a case.
In the present case, her Honour was unable to accept the proposition that the animal facility or the waste transfer facility aspects of the development could be regarded as merely incidental to the broader 'civic use' involved with the administration building (putting the green waste grinding aspects to one side for now). The nature of those activities, their scale and their extent, pointed against such a conclusion, in her Honour's view.[358] I respectfully agree.
The summary of the various aspects of the Proposed Development set out earlier in these reasons, as further explained at [534] above, support the conclusion that the development cannot be reduced to one, simple description. Such an approach would be counter to the principles identified at [524] above.
The appellant's simplistic approach would require the Court to ignore the fact the Proposed Development contemplates that the animal holding facility will be a substantial building with exercise yards, designed to hold up to 22 dogs and, by its nature, would likely have a distinctly different impact on the environment to the activities associated with the administration building of the local government.
The Court would also need to ignore the fact the Proposed Development contemplates that the waste transfer facility would be a large part of the development and, by its nature, will involve large vehicles entering and exiting the site, resulting in the possibility of increased traffic and noise.
The primary judge correctly considered both of these uses were properly characterized as separate uses.[359] They each involved distinctly different activities, each being of an appreciable size and significance in the context of the overall Proposed Development. The primary judge's conclusion that none of these uses could sensibly be described as activities that would be incidental to a broad 'civic use' involves no error, in my view.
The appellant's ultimate contention that the Proposed Development consists of one broad 'civic use' advances no further when the definition of that term in TPS 6 is closely examined. The appellant contends that all of the uses of the Proposed Development would fall within the meaning of 'civic use' because they were all 'other purposes', further submitting that the genus established by the definition was 'governmental purposes'.[360]
The primary judge rejected this submission, with her conclusion in this regard being founded on her assessment of the scope of the defined term, as a matter of construction.[361]
In her reasons, the primary judge identified the competing arguments of the parties as to the proper construction of the term, noting that the appellant's position as to the proper construction of this aspect of TPS 6 was modified during the course of the hearing.[362]
The appellant submits the primary judge construed the term ejusdem generis and incorrectly read down the meaning of the words 'other purposes'.[363] This oversimplifies her Honour's reasoning.
Her Honour rejected the appellant's submissions, explaining that the ejusdem generis rule was not the appropriate starting point for the construction exercise as to the meaning of the phrase 'other purposes', although her Honour returned to this rule as part of the overall analysis. Her Honour further explained that the intent of TPS 6 and its context were inconsistent with a construction by which the 'purposes' phrase is unconstrained, or constrained only to the extent of meaning 'governmental purposes'.[364]
The primary judge made reference to the terms of cl 3.4.1 of TPS 6 in this regard, the effect of which is that a use specifically mentioned in the Zoning Table (such as 'kennels' or 'industry noxious') is deemed to be excluded from the general terms used within the definition of 'civic use'.[365] Further, the primary judge observed that, as 'civic use' is a permissible use in every zone in the Zoning Table, a wide construction of the phrase 'other purposes' would give the City the ability to approve its own development applications for extreme uses, such as a rubbish tip in a residential area.[366] Finally, the primary judge noted the language used in the definition, including the use of the terms 'administrative' and 'recreational', would be redundant on the City's preferred construction.[367]
It is not in issue on this appeal that the primary judge correctly summarised the principles which guide the construction of local planning schemes. As to the constructional approach to adopt, the primary judge cited[368] the observations of Pritchard J in Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel.[369] In that case, Pritchard J applied the principles expressed by this Court in Australian Unity Property Limited v City of Busselton.[370] Pritchard J summarised the principles as follows:[371]

[276]

The foregoing represent orthodox principles applicable to the construction of planning schemes such as TPS 6. Thus, the meaning of the language employed in the definition in question requires a consideration of the context, including the general purpose and policy of the definition when applied to the provisions of TPS 6. The definition cannot be viewed in isolation.
In my view, the primary judge's approach to the construction of the term 'civic use' was correct. On a proper construction of TPS 6, in its context, the definition of 'civic use' does not have the wide and unconstrained meaning contended for by the appellant.
An appropriate starting point for the analysis is cl 1.7 of TPS 6, which provides that words and expressions in the scheme have the same meaning as they have in the PD Act or, if not defined in the PD Act, in the Dictionary in sch 1 to TPS 6, 'unless the context otherwise requires'. The term 'civic use' is not defined in the PD Act, so, unless the context otherwise requires, resort should be had to the definition in sch 1 to TPS 6.
The context in which the definition of 'civic use' is employed in TPS 6 is within the Zoning Table in cl 3.3. That table is to be interpreted in accordance with cl 3.4. I have earlier set out the terms of this clause. Clause 3.4.1 provides that where a specific use is mentioned in the table, it is deemed to be excluded from the general terms used to described any other use, and so essentially requires that a proposed development be characterised under the most specific of two or more possible use categories.
In the present circumstances, the interpretation of 'civic use' and the general words 'or other purposes' which conclude the definition, must be construed by reference to cl 3.4.1. That is, appropriate recognition must be given to the existence of other specific uses in the table, such as the 'kennels' use and the various industry uses, such as 'industry noxious' use. If the 'use' to be ascribed to a particular development is properly within one of these specific uses, it should be excluded from the general words which are employed in the definition of 'civic use'.
This context is important having regard to the appellant's reliance on s 17 of the Interpretation Act 1984 (WA) (Interpretation Act). That provision indicates that the words 'or', 'other' and 'otherwise' shall be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added. As with all provisions of the Interpretation Act, this provision is subject to any expression provision in a written law to the contrary, or in the case of subsidiary legislation (such as TPS 6), subject to the intent and object of the Act under which the subsidiary legislation is made is inconsistent with such application.[375]
It is apparent that, by cl 3.4.1 of TPS 6, express provision has been made to the contrary for the purposes of s 3(1)(a), such that the phrase 'other purpose' may be construed, in context, as implying similarity with the words which precede it. That is, the legislative presumption in s 17 of the Interpretation Act is displaced.
The search for the meaning of the definition may then proceed having regard to the ordinary tools of construction, including, where applicable, the use of maxims of construction. The primary judge approached the matter on this basis, as I have noted above, and concluded that the ejusdem generis rule ultimately assisted in the exercise of construction. I respectfully agree.
The words 'or other purposes' should be read ejusdem generis with the reference to 'administrative' and 'recreational' in the definition, so as to be confined thereto. To approach the concluding words of the definition as being unconstrained would, as the primary judge correctly observed, give the local government in question the ability to approve its own development applications for extreme uses and would largely render the use of the terms 'administrative' and 'recreational' as redundant. That would be an unlikely construction of the provision, in my view.
Her Honour's approach to the construction of the term 'civic use' was correct, in my view, and no error has been demonstrated in this regard. The whole of the Proposed Development was not able to be approved as a 'civic use' under TPS 6. Properly construed, the whole of the Proposed Development was not able to be classified under TPS 6 as being only for 'administrative' or 'recreational' or other similar purposes.
Ground 3 must be dismissed.

[282]

The appellant submits that the word 'keeping' in the definition should not bear its ordinary meaning, but rather should be construed to mean 'to have habitually in stock or for sale'. That is, the word should be given a commercial meaning, particularly having regard to the co-location of the words 'boarding' and 'breeding' which are said to have a commercial connotation.[381]
Further, when examined in the context of the scheme as a whole, the appellant contends the concept of 'kennels' is directed to 'animal boarding and commercial animal breeding', which phrase appears in the explanation of the 'Kennels Zone' in cl 3.2 of TPS 6.[382]
The absence of any commercial purpose on the part of the City is thus said by the appellant to be decisive of this question. The appellant draws a distinction between an 'animal pound' where animals are kept as prisoners, on the one hand, and a 'kennel' where animals are kept for their own sake.[383] The appellant says there is no commercial use involved in the 'animal facility' which is intended to form part of the Proposed Development.
The first respondent draw attention to an additional defined use in TPS 6, namely that of an 'animal establishment'. This use is defined to mean 'premises used for the breeding, boarding, training or caring of animals for commercial purposes but does not include animal husbandry - intensive or veterinary centre'.[384] The first respondent emphasises the presence of the term 'commercial purposes' in that definition.
The first respondent further submits that it is wrong to approach the concept of 'kennels' on the assumption the mischief is the commerciality of keeping dogs. Rather, the relevant mischief is said to be the nuisance of having more than two dogs, as appears from the concluding words of the definition. The policy objective behind the provision is that, according to the first respondent, a balance is reached by allowing families to keep two dogs but not allowing more than that given the likely amenity and nuisance issues which might arise in a residential area if more than two dogs were generally permitted.
The first respondent recognises this interpretation of the planning scheme is not wholly consistent with the provisions of the local law passed by the appellant under the Dog Act 1976 (WA) (Dog Act). Section 26 of the Dog Act provides that a local government may, by a local law, limit the number of dogs at domestic premises to 2, 3, 4, 5 or 6. The local law which is operative in the Gosnells district, the Dogs Local Law 2020 (WA) (Dogs Local Law), provides that homeowners may keep four dogs if the home is within the 'Kennels Zone'.[385] The manner in which the provisions are to be read, according to the first respondent, is that it can be seen that it will not be an offence under the Dogs Local Law to keep three dogs at premises larger than 2,000 square metres, but it will remain beyond the power of the appellant to grant planning permission to do so other than in a 'Kennels Zone'.[386]

[283]

The scope of the term 'kennels' in TPS 6 requires a consideration of the context, including the general purpose and policy of the definition when applied to the provisions of TPS 6. As with the definition of 'civic use', the definition of 'kennels' cannot be viewed in isolation and the question must be approached objectively, the 'use' classification being a jurisdictional fact.
The appellant's arguments on this ground of appeal place considerable reliance on the contention that the word 'keeping' in the definition of 'kennels' must be regarded as implying a commercial use. That requires one to accept that the term should not be ascribed its ordinary meaning, to 'take care of a thing or person' or the 'giving of attention so as to maintain in good order or condition'.[387]
I accept there are indications within the definition that the term is directed to commercial operations, particularly through the inclusion of the terms 'boarding' and 'breeding'. But the term 'keeping' within the definition must be given significance and operation. It is not to be subsumed by the words which surround it within the definition.
Further, the appellant's argument as to an implied commercial purpose within the 'kennels' definition is weakened by the express inclusion of a reference to 'commercial purposes' in the definition of 'animal establishment', and its absence in the definition of 'kennels'. That said, one should bear in mind the need to construe instruments such as a planning scheme in a broad manner, and not in an overly pedantic fashion.
Accordingly, rather than seeking to draw fine distinctions between the drafting of these two particular 'uses', a sounder approach in the context of a planning scheme such as this would be to consider the policy objectives which may be inferred to underpin the prohibition on 'kennels' use. That prohibition is applicable in every zone other than a 'Kennels Zone'. The policy is, one can safely infer, the planning imperative to minimise the impact on persons within the district of the noise and smell which would likely emanate from a facility or from premises which house more than 2 dogs on a regular basis. The Zoning Table corrals 'kennels' into specifically zoned areas for this particular reason. In this regard, I agree with the primary judge's reasons that this policy objective is likely to underpin the drafting and structure of TPS 6, more so than a commercial imperative associated with the keeping of animals.
The first respondent, in his submissions, offers a meaning of the term 'keeping', namely that it addresses the duration of having more than two dogs at a premises. For example, one does not keep a dog if the dog is temporarily housed at a dog grooming salon. Further, one is not keeping a third dog if the owner of two dogs permits that third dog, owned by a visitor perhaps, to stay at a residence over a short period. While there is some logic in this approach, it would introduce some uncertainty as to the length of time which triggers this type of 'use'. For my part, I accept that the holding of more than two dogs at the 'animal facility' on the site of the Proposed Development, even though only for a short period, would amount to the 'keeping' of those dogs, and so constitute a 'kennels' use within the meaning of TPS 6. There is no express or implied requirement for the 'keeping' to be driven by a commercial purpose. In any event, it is to be borne in mind that although the animal holding facility is designed to hold particular dogs for short periods, the facility itself will likely hold more than two dogs on a regular basis.
The appellant also places reliance on the definition of 'Kennels Zone' in TPS 6 as an aid to the construction of the term 'kennels' use, and as a basis to confine the reach of that use. The scheme defines 'Kennels Zone' as a zone 'to provide for dog kennels in appropriate locations, to meet the needs of the community with respect to animal boarding and commercial animal breeding'.[388] The formulation of the zone might suggest that the concept of 'kennels' use should be construed in a similar fashion, with an emphasis on boarding and breeding.
I do not accept that the description of this 'zone' and this particular 'use' within TPS 6 must be viewed as being correlative. As earlier noted, fine distinctions should not readily be drawn when construing planning schemes such as this. In any event, as Buss P and Vandongen JA have observed, the definitions reveal nothing more than a planning decision that uses of a 'kennels' nature must take place alongside other similar land uses, in the same zone.
Further, I do not accept that the appellant's reliance on the regimes under the Dog Act and the Dogs Local Law provide an answer to the question of construction of a 'use' classification under the local planning scheme regime. The regimes are directed towards securing different policy objectives, with respect, and one should not regard an inconsistency between the regimes as indicative of an intention to confine the natural reading of the language employed. In any event, as senior counsel for the first respondent observed,[389] cl 1.8 of TPS 6 operates to control the hierarchy between the provisions of the scheme and a provision of a local law, such that the former prevails.
The primary judge's assessment of the animal facility use aspect of the Proposed Development was correct, in my view. The term 'kennels' in TPS 6 should be construed in its ordinary sense, such that the animal facility would be a 'kennels' use (in the sense of constituting the 'keeping' of animals) and thus a prohibited use in the General Rural Zone under TPS 6.
Ground 4 must be dismissed.

[293]

Proposed ground 6 contends that the primary judge erred in law in concluding that, by reason of the notations on the Marked Plan, the Development Approval given by the City on 21 January 2022 permitted compost manufacturing and soil blending in terms described in category 67A. The appellant submits the primary judge should have found the Marked Plan did not form any part of the Development Approval.
The appellant requires leave to advance this ground given notice was given of the proposed amendment only on the day before the hearing of the appeal. The application to amend the grounds was thus made very late in the proceedings. The Court has power to add a ground of appeal, pursuant to r 43(2)(e) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The first respondent opposes leave being granted.
There were, in substance and so far as I can discern from the competing submissions, three bases for the opposition, which overlap to some degree.
First, it is asserted by the first respondent that this issue was not raised below.[394] Second, it is said by the first respondent that the proposed ground would involve the appellant resiling from a concession made in the proceedings below.[395] Third, the first respondent submits that, but for the concession below, the reasons and circumstances in which the Marked Plan was prepared might have been explored in cross-examination and the first respondent would be prejudiced by the grant of leave on appeal to allow the appellant to agitate this issue.[396]
As these grounds of opposition suggest, the parties submissions on the question of leave, and in relation to the merits of proposed ground 6, raise what appear to be a number of contentious factual questions, including as to the course of the proceedings below.
At [274] of the Primary Reasons, the primary judge addressed the sixth issue, described as 'What was approved?'. In some detail, the primary judge traversed the 'considerable material' which had been adduced by the City below, seeking to isolate and identify what had been approved by the appellant as the Proposed Development. This issue formed part of the agreed list of issues the parties had prepared, as appears from [22] of the Primary Reasons.
The primary judge's analysis reveals the identification of the instrument or instruments which were approved by the City is not straightforward. The complexity arises because there were two approval processes, seeking approval from the City and from the WAPC. Further, an error arose in the course of the City's consideration of the Development Application, springing from an initial approval which was given beyond power.[397] Additionally, there are misdescriptions in the WAPC approval instrument, which mistakenly refers to an application with the wrong date and uses the wrong plan number for the Marked Plan.[398]
The primary judge's reasons in fact demonstrate that the battleground below was relatively narrow insofar as the Marked Plan was concerned. The appellant appeared to confine its objection to whether the uses identified within the plan should be taken as separate uses, not whether the plan correctly reflected the development in respect of which approval was being sought from the City.
The primary judge concluded that:

[295]

However, it must be said there is nothing by way of factual material to support the primary judge's finding that the Marked Plan was incorporated into the appellant's Development Application to the City. This is largely explicable given the matters recorded by the primary judge, including, most importantly, that the City 'accepted, however, that what was recorded on the Marked Plan accurately reflected the things that the City was seeking to get approval to put on the land' ([312]). The City's approach to the proceedings below in this regard was not consistent with the statutory context.
In considering this proposed ground of the appeal, I am greatly assisted by the reasons of Buss P and Vandongen JA. As the reasons of their Honours explain, the factual analysis which the parties urge upon this Court, in their supplementary submissions filed following the hearing of the appeal, appears to be wholly divorced from the statutory context which applies. Their Honours correctly draw attention to the deemed provisions which apply to TPS 6, by reason of the PD Regulations, and in particular to cl 60(a), cl 63, cl 67(1), cl 68 and cl 73 of sch 2 to those regulations. I adopt their Honours' analysis in this regard.
As their Honours have concluded, and subject to the legislative changes which have occurred since the Development Application in this matter was lodged, which do not bear upon this appeal, it is the development for which approval is sought which marks out the boundaries of any approval given under the statutory regime.
Further, I respectfully agree with the conclusion reached by Buss P and Vandongen JA that, once the evidence before the primary judge (as supplemented by the parties on appeal) is carefully assessed, it is clear that the Marked Plan did not form part of, nor did it accompany, the Development Application which was the subject of the Development Approval given by the City on 21 January 2021. To the extent a broader factual inquiry was encouraged by the parties as to the provenance of the Marked Plan, it was simply irrelevant.
So, when these factual materials are viewed within the proper statutory context, I agree with their Honours that the grounds of opposition mounted by the first respondent, in opposing the grant of leave to proposed ground 6, carry little weight and, indeed, are misplaced.
Once the statutory context is appreciated, as their Honours explain, it is irrelevant whether the Marked Plan formed part of the approval given by the WAPC.
Critically, the Marked Plan did not form part of the City's Development Approval. As the Marked Plan was the only basis on which primary judge concluded that the City's approval included approval to engage in compost manufacturing and soil blending, the primary judge was led into error by the approach adopted by the parties in concluding that the City had acted beyond jurisdiction in approving a development which incorporated a 'use' which was beyond power.
The appellant should have leave to add this ground, and the ground should be upheld.

[300]

(a) every work which the Crown, or the Governor, or the Government of Western Australia, or any Minister of the Crown, or any local authority is authorised to undertake under this or any other Act;

(b) any railway authorised by special Act or any work whatsoever authorised by any Act;

(c) tramways;

(d) any works for or in connection with the supply of water to, or for or in connection with the sewerage of, any city, town, or district, including all reticulations;

(e) buildings for the occupation of either or both of the Houses of Parliament or for public offices;

(f) hospitals, medical clinics, hostels and institutions including residences for staff, court‑houses, gaols, watch‑houses, lock‑ups, police barracks, or quarters;

(g) observatory;

(h) public schools or any other schools authorised to be established wholly or in part at the public cost by any Act in force for the time being, universities, colleges, technical and other educational institutions, including residences or hostels for teachers or students, and play‑grounds;

(i) public libraries, mechanics' or miners' institutes, agricultural halls, or schools of art;

(j) public housing;

(k) wharves, ferries, piers, jetties and bridges;

(l) parks or gardens or grounds for public recreation or places for bathing, and for the reclamation of land for or in connection therewith;

(m) public cemeteries;

(n) public wells or works for the conservation of water;

(o) the protection and preservation of any cave or place of scientific or historical interest;

(p) the protection and preservation of indigenous flora and fauna;

(q) the establishment of public abattoirs;

(r) harbours and ports, including the provision of storage, handling and wharfage areas and other facilities normally ancillary to the conduct of shipping operations, break‑waters, leading marks, navigational aids, docks, slips, the alteration or improvement of channels, waterways and rivers, the protection of foreshores and banks, the provision of new channels and related works, including the landing and disposal of silt;

(s) quarries or works for procuring stone, gravel, earth, or any other material required for the construction of, or any purpose connected with any public work as aforesaid;

(t) the procuring from land (other than Crown lands and public reserves) of timber, stone, gravel, earth and any other material required by or for the State for or in connection with the carrying on of any industrial or other undertaking or activity which is being carried on by or for the State under any law authorising the same;

(u) buildings and structures required for fire brigade purposes;

(v) the establishment and the extension by the Governor of sites for towns;

(w) the establishment and the extension by the Governor of agricultural research stations;

(x) drainage works in connection with any city, town, or district, and the improvement of rivers, watercourses, lakes, or inlets, including deepening, widening, straightening or otherwise altering, and disposal of silt;

(y) any building or structure of whatsoever kind which, in the opinion of the Governor, is necessary for any public purpose;

(za) any road, stock route, viaduct, or canal;

(zb) any work incidental to any of the aforesaid works;

(zc) any land required for or in connection with any work as aforesaid;

(zd) any survey in connection with any proposed public work[.]

CITY OF GOSNELLS -v- REID [2024] WASCA 155 (17 December 2024)

At a glance

Court

Decision date

Before

Source

Judgment (559 paragraphs)

The Public Works Act (on and from 10 August 2023)

Legislation Cited (31)

Cases Cited (44)