Court of Appeal (WA)|1998-12-18|Before: Mr P, Anderson J, Brinsden J, Burt CJ, Kennedy J, Murray J

The application for development approval is made on behalf of Australasian Aerospace Pty Ltd, to whom I shall refer as the developer. As Anderson J makes clear, the application was to use the site for a health centre incorporating medical consulting rooms and a pharmacy. The total area of the development was 2,506 sqm and of that area the pharmacy was proposed to occupy approximately 17.5%. As Anderson J observes, it was quite a large development which was proposed.

The Council of the applicant City was required to deal with the application pursuant to the terms of its Town Planning Scheme No 40. Anderson J has set out the terms of the notification of its refusal of development approval. They are consistent with the resolution of Council passed on 10 February 1998. It is to be noted that the ground of refusal was "that the pharmacy is not considered to constitute an incidental use to the medical complex as it is a use which can operate independently of the complex and does not hold a subordinate relationship to a predominant use lawfully approved on the site".

Under the Town Planning Scheme the land in question is zoned "Highway Commercial". In respect of land in that zone the use class "Health Centre" is shown as AA. So far as the pharmacy is concerned, the use class "Shop" is shown as IP. Clause 2.2.3 of the Scheme text explains that the symbol "AA" "means that the use is not permitted unless approval is granted by the Council". The symbol "IP" "means that the use is not permitted unless it is determined by the Council to be incidental to a use determined by the Council to be the predominant use and is approved as such by the Council."

It is to be noted, I think, that the developer sought development approval for a particular project which was described as a Health Centre incorporating medical consulting rooms and a pharmacy. It could not commence or carry out that development unless Council's approval had first been obtained, but it was for the project so described that approval was sought, not for part of the proposal for which, no doubt, if it was so minded, the developer might still apply for development approval.

In dealing with an application for development approval on land zoned under the Scheme, where an AA use is involved the Scheme cl 2.3.6.2 provides that "The Council in exercising its discretion as to the approval or refusal of an application for Development approval, shall have regard to the provisions of subclause 2.3.8." Clause 2.3.8 is generally concerned to set out the matters to be considered when Council exercises its discretion in respect of an application for development approval. Clause 2.3.8.3 sets out some particular matters which are concerned inter alia with an AA use application. There is no doubt, I think, that as the Scheme is framed, the question of the grant or refusal of development approval in relation to an AA use class involves the Council in making a discretionary judgment guided by the provisions of the Scheme text to which I have referred.

So far as the application for development approval involves an IP use, cl 2.3.6.3 provides that:

(a) identifying the predominant use of any land; and

(b) as to whether any use is incidental to the predominant use;

is a factual decision to be made upon the Council's assessment of the circumstances of any case. Having determined that the use involved in an application for Development Approval is properly an 'IP' use, the Council shall deal with the application in accordance with the provisions of paragraph 2.3.6.1 as if the use involved was a 'P' use."

As cl 2.2.3 in defining the symbols makes clear, the first question must be whether or not Council in the exercise of the guided discretion conferred upon it by the Scheme, is prepared to approve the AA use as the predominant use "approved as such by the Council". In this case I think Council has not addressed that question. That is made clear by the terms of its resolution notified to the developer. It refused the application solely upon the basis of its judgment about whether or not the pharmacy, considered as a shop, was an IP use within the meaning of the Scheme.

There is reason to suppose that Council might have been prepared to exercise a favourable discretionary judgment in relation to the balance of the health centre as an AA use. Part of the resolution passed by Council on 10 February 1998 was that not only should the developer be advised of its decision, but it should be further advised "that Council would be prepared to consider a revised application for a medical centre which satisfies TP Scheme No 40 and Council policy requirements." However, it seems to me to be clear that Council made no discretionary judgment about the approval of so much of the development proposal as would constitute an AA use of the site.

The first step then for Council with respect to this application was to attend to the exercise of its discretion to approve or refuse approval for so much of the development application as was concerned with the AA use as a health centre. That was undoubtedly the predominant use of the land which would result from the approval of the application. Council then had to turn its attention to the pharmacy and the "shop" use identified as an IP use in the zoning table. In identifying the predominant use and considering whether the identified IP use was incidental to it, it is clear from the Scheme text itself that no exercise of discretionary judgment was involved, merely the making of a value judgment.

I respectfully agree with Kennedy and Anderson JJ that, having regard to the authorities to which they refer, the process of categorising the pharmacy as being a shop use which was or was not properly to be regarded as incidental to the use of the land as a health centre, would as a matter of general principle involve no act of discretionary judgment of itself, although I think it should be said that I remain of the view which I expressed in my dissenting judgment in R v Busselton Shire Council, Ex p Busselton Home Entertainment Pty Ltd (1993) 83 LGERA 188 at 197-8 that it is unnecessary to consider cases such as Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211, 216-7 and Penrith City Council v Waste Management Authority (1990) 71 LGRA 376. In a case such as this where the use under consideration in respect of which approval is sought is identified in a zoning table as an IP use, the question is merely whether it is incidental to another approved use.

In the cases mentioned the question was whether approval of a particular use carried with it an approval of incidental uses without the need to separately identify and approve them under the terms of a town planning scheme. As Glass JA put it in Foodbarn at 161:

"It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts."

However, I do agree that, as Gibbs CJ said at 217 in Lizzio, the question whether a use is incidental to a predominant use will be "one of fact and degree", as a matter of general principle as well as in this case expressly by reason of the terms of the Scheme text, cl 2.3.6.3.

It is instructive for present purposes to note that under that provision, the process of categorisation of the pharmacy as an IP use in the context of this application would mean that Council was then to deal with that part of the application (the predominant AA use already having been approved) as a P use. By cl 2.2.3 a "P" use is defined as a use which is permitted by the Scheme. Clause 2.2.6.1 provides in respect of P uses that:

"If an application under this Scheme for Development Approval involves a 'P' use, the Council shall not refuse the application by reason of the unsuitability of that use, but notwithstanding that, the Council may in its discretion impose conditions upon the Development Approval and if the application proposes or necessarily involves any building or any other work the Council upon considering that building or other work may exercise its discretion as to the approval or refusal and the conditions to be attached to the proposed development."

So it is clear that an exercise of discretionary power would be involved in this case in respect of the pharmacy, if categorised as an IP use, not in determining whether to approve the use itself, for the reasons set out above, but in conditioning that approval as might be necessary and in making a judgment about any building work necessarily involved.

If, as occurred in this case, in Council's judgment the use of this land as a pharmacy was not an approved IP use because Council deemed it not to be incidental to the predominant use of the land as a health centre, then the definition of the IP symbol in cl 2.2.3 makes it clear that that use of land "is not permitted". Again by cl 2.2.3(b) and by cl 2.2.4, where in respect of a zone in the zoning table no symbol appears against a relevant use class, or a particular use is not mentioned or included at all in the list of use classes, then that use is prohibited in the relevant zone. Further, by cl 2.3.6.4:

"The Council shall refuse to approve of so much of any development which involves a use which is not permitted."

So the fact that Council did not approve the pharmacy as an IP use was not fatal to the application for development approval in its entirety, but only to so much of the proposal as involved use as a pharmacy. It seems to me that Council might have, but as I have mentioned did not, grant development approval for the health centre without the pharmacy. It should be mentioned that under cl 2.3.9.1 if Council does not defer consideration or determination of an application for development approval, it may refuse to grant its approval, it may grant approval unconditionally, or it may grant approval subject to such conditions and requirements as it deems fit. Each of those outcomes is perfectly capable of involving the exercise of discretionary judgment except in so far as the fate of the application in its entirety or in part depends upon the application of a provision such as cl 2.3.6.3 of the Scheme text.

In this case, as has been seen, Council refused to grant development approval for the whole application. The developer appealed to the Minister for Planning against that refusal. Upon the evidence before the court it is clear that the Minister proposes to embark upon the hearing and determination of the appeal. The City's application for prohibition to prevent him from doing so is made on the ground:

"...that the Minister would make a jurisdictional error if he were to entertain and determine the Appeal, as the Minister is only able to entertain an Appeal pursuant to cl 2.7.8 of the City of Canning Town Planning Scheme No 40, or pursuant to s8A of the Town Planning and Development Act 1928, against a decision of the Council of the City of Canning exercising a discretionary power, whereas the Appeal is made against a decision of the Council where no discretionary power was exercised, but rather a determination of fact was made."

Clause 2.7.8 gives a right of appeal to an applicant or the owner of the land the subject of an application who is "aggrieved by a decision of the Council exercising a discretionary power under the Scheme". The appeal is to be made in accordance with the Town Planning and Development Act 1928 (WA) Part V, but it is clear that under that clause the right of appeal is against so much of the decision of the Council as involves the exercise of discretionary power. Part V of the Act includes s37, which is a definition section. It includes a definition of the term "appeal", for the purposes of Part V. The object is not by that section to confer any right of appeal, but simply to describe the appeals, the right of appeal being conferred elsewhere, to which the provisions of Part V will apply.

Under para (a)(i) of the definition, one type of appeal governed by the provisions of Part V is an appeal to the Minister under a town planning scheme "if the appeal is in respect of the exercise of a discretionary power by the responsible authority under the scheme". The right of appeal conferred by this Scheme, cl 2.7.8 is self-evidently such an appeal and so to determine the extent of the right of appeal, it is appropriate to ask whether it is against a decision of the Council which is "in respect of the exercise of a discretionary power" in that it was a decision made by the Council "exercising a discretionary power".

In City of South Perth v Fairway Heights Pty Ltd [1981] WAR 51 the court was concerned with an appeal under the Town Planning Scheme of the City of South Perth where the provision conferring the right of appeal was worded similarly to cl 2.7.8 of this Scheme,but, importantly, the right of appeal was given against a decision of the Council which "involves the exercise of a discretion". Section 37 of the Act then took a similar form to that which it presently bears, but the question at issue in that case was different from that which arises here. The City had refused an application for development approval in circumstances where it had a discretion to approve or reject the application. Before it could approve the application Council had to be satisfied that certain conditions set out in the Scheme had been complied with and, because it was not so satisfied, the application was refused.

The matter came before the Full Court on appeal against the decision of the Town Planning Appeal Tribunal, which refused to hold that the appeal to it was incompetent upon the ground that Council's failure to be satisfied that the preconditions for the exercise of its discretionary power existed, did not itself involve the exercise of discretionary power. At 53 of the report Burt CJ said:

"When, as here, a discretionary power is conditioned by the grantee of it being satisfied as to the quality of something to be created under the authority of its exercise then the failure to be so satisfied which leads, as it must, to the refusal to exercise the power is, in my opinion, a decision which 'involves the exercise of a discretion' and an appeal from that decision is an appeal 'in respect of the exercise of a discretionary power'. The refusal to approve the design and site plan involves the exercise of a discretion at the point of satisfaction or lack of satisfaction and the power being discretionary an appeal from the refusal to exercise it is an appeal in respect of the exercise of a discretionary power. I might add, although it was not argued, that a refusal to exercise a discretionary power is in my opinion a decision in respect of the exercise of a discretionary power within the meaning of s37(a)(i) of the Act."

Lavan SPJ agreed and at 57 Brinsden J took an even more expansive view of when an appeal might be said to be available because the decision of Council "involves the exercise of a discretion" so that the appeal may be said to be "in respect of the exercise of a discretionary power".

However, in this case, so far as the determination in respect of the pharmacy was concerned, I do not think it can be said that the decision that it was not a use incidental to the predominant use of the land identified by the Council represented Council's failure to be satisfied about a precondition to the discretionary approval of that use, having regard to the fact that a contrary decision would result in the IP use being treated as a P use with the consequence that Council might not refuse the application for development approval by reason of the unsuitability of the use, despite the fact that it might exercise its discretion to impose conditions upon the approval and in respect of building or other work involved in the development application. For those admittedly discretionary elements of the rejection or conditioning of the application for approval to be brought into play to provide a right of appeal the fate of the application would, in my opinion, have to turn upon the approval being subject to particular conditions or a refusal to approve the building or other work in question, rather than upon its determination that the use of the land as a pharmacy was not incidental to the predominant use of the land as a health centre.

That being the case, in my view there could be no appeal under the Scheme, cl 2.7.8 against so much of the refusal as involved the failure to approve the pharmacy as an IP use. The decision of Council in that regard was not in my view the exercise of a discretionary power to grant or refuse, and so the appeal would at least to that extent not be in respect of the exercise of a discretionary power by Council.

However, a right of appeal in respect of so much of the decision as refused approval in respect of the health centre, the relevant AA use, did arise under the Scheme cl 2.7.8, given my analysis of the provisions of the Scheme set out above. Properly understood, Council's power to grant or refuse approval at least to the extent that the application involved an AA use, was clearly the exercise of a discretionary power. That is so I think, even though as I have noted, Council in this case did not address the exercise of that discretionary power, but rested its refusal of approval entirely upon its decision in respect of the IP use which was a part of the application. I would rest my view in this regard upon the obiter remark of Burt CJ in Fairway Heights that a refusal to exercise a discretionary power (or as in this case a failure to do so) is a decision in respect of the exercise of discretionary power. To put the matter another way, in the context of this Scheme, cl 2.7.8, Council's decision in respect of the AA use was made in the exercise of a discretionary power to grant or refuse the application in respect of that use, even though Council wrongly declined to exercise its discretion one way or the other because it misconceived its function under the Scheme in respect of the application before it.

If that view be correct, prohibition will not lie and it is unnecessary in this case to consider the alternative source of a right of appeal under the Act, s8A(1) which provides:

(a) under a town planning scheme, the grant of any consent, permission, approval or other authorization is in the discretion of the responsible authority;

(b) a person has applied to the authority for such a grant; and

the applicant may appeal to the Minister against the authority's decision in accordance with Part V."

On the return of the order nisi I raised the question whether the wording of that section would provide a wider right of appeal in this case than would the Scheme, cl 2.7.8.

The argument would be that in this case the grant, or refusal, or conditioning of approval of the application for development approval before Council was clearly overall "in the discretion of" the Council. The application had been made and Council had refused it. The right of appeal which was thereby conferred by the Act, s8A(1) would be against the whole of the decision. In those circumstances, the Minister would have jurisdiction to hear and determine the whole of the appeal and he would not be restricted to a consideration only of those aspects of Council's decision which, in themselves, involve the exercise of a discretion. The right of appeal against the whole decision would therefore include the factual determination whether or not in the circumstances the pharmacy would be incidental to the predominant use involved in the application for development approval, the health centre.

However, as this proposition attracted no support from either respondent and was not fully argued, the resolution of the question of the ambit of the right of appeal conferred by the Act s8A(1) should await another day. It is enough for present purposes that prohibition will not lie in this case because a right of appeal arises under both the Scheme and the Act, at least in respect of the exercise of discretion.

It follows however, from the above, that I too would discharge the order nisi, and in parting with the case I merely make the observation that, although it is no part of the proceedings before this Court to consider the correctness of Council's view, it would seem to me that the factual question whether the pharmacy was incidental to the predominant use of the site as a health centre could not turn on the obvious statement that a pharmacy could operate independently of a health centre.

As the merits were touched upon in argument, I think I should add that Council's resolution that the application be refused was supported and would be supportable, at least in respect of the proposed IP use, by the fact that, as the resolution was expressed, Council apparently concluded that the pharmacy was "a use which can operate independently of the complex and does not hold a subordinate relationship to a predominant use lawfully approved on the site". (My emphasis). The latter consideration by Council would appear to reflect an accurate appreciation of the terms of the Scheme, cl 2.3.6.3, but, of course, it is no part of the function of this Court to consider whether such a view was appropriately grounded in fact.

This is the return of an order nisi obtained by the City of Canning calling upon the Minister for Planning to show cause before this Court why a writ of prohibition should not issue directed to the Minister to prohibit him from considering and determining a planning appeal.

The appeal is against a decision of the City of Canning whereby the City refused to grant to a developer, Australian Aerospace Pty Ltd, approval to develop 8,735 square metres of land at 1120 Albany Highway, Bentley, for the stated purpose of:

"Health centre incorporating medical consulting rooms and a pharmacy. Existing TAB."

The reference to "Existing TAB" is a reference to one of the two existing uses, namely, a Totalisator Agency Board betting shop. The other existing use, which was not to be continued, was that of a bar and bistro. The development proposal was for a medical complex for up to five practitioners (comprising 387 square metres), 13 additional tenancies for up to 20 medical practitioners (comprising 1361 square metres), a physiotherapy and rehabilitation clinic for up to four practitioners (comprising 319 square metres) and a pharmacy (comprising 439 square metres). It was, therefore, quite a large development.

The land in question is zoned "Highway Commercial" under the applicable planning scheme, that is, the City of Canning's Town Planning Scheme No 40. Within that zoning the use class "health centre" is an AA use. This means that development or use of the land for the purpose of a health centre is discretionary. It is "not permitted unless approval is granted by the council". However, under the scheme, a pharmacy is not a discretionary use. It is a "shop" for the purposes of the scheme, and that is a use which is designated "IP" in the zoning table. An IP use "is not permitted unless it is determined by the council to be incidental to a use determined by the council to be the predominant use and is approved as such by the council".

The application for development approval was lodged with the council in December 1997. Notification of the refusal was sent out on 13 February 1998 in the following terms:

"Council's Development Approval to the proposed development described on the application ... is REFUSED for the following reasons: ...

The pharmacy is not considered pursuant to clause 2.3.6.2 of the City Zoning Scheme (TP Scheme No 40) to constitute an incidental use to the medical complex as it is a use which can operate independently of the complex and does not hold a subordinate relationship to a predominant use lawfully approved on the site."

This decision meant that the application was refused because of the inclusion in the development proposal of the pharmacy and because the pharmacy was determined by the council to be not a use which was incidental to the use for the purposes of a health centre. The council's reasoning obviously was that because the pharmacy was not an incidental use and was therefore, by force of the scheme, not permitted, the application in its entirety had to be refused.

I am not at all sure that the council was obliged to take this all-or-nothing approach. In that part of the scheme which prescribes the manner of dealing with applications for development approvals involving the various use classes, it is provided by cl 2.3.6.4:

"Not Permitted Uses - The council shall refuse to approve of so much of any development which involves a use which is not permitted."

I think that clause is wide enough to authorise a partial approval and in this case enabled the council to approve the development application with the exception of the pharmacy.

When an application is made for multiple uses on the same land some of which are discretionary or permitted uses and some of which are not, there is no reason in principle not to give consideration to the application as it relates to each of the different uses. On a true analysis, the application in question is in this category. Although there was a single development application it was really an application for different and distinct uses on the one site. See BP Australia Pty Ltd v City Of Perth (1993-1994) 10 SR (WA) 110 at 114. In my opinion this is how the application ought to have been treated once it was determined that a use of the land for the purposes of the pharmacy was a use which was not incidental to the dominant use. Consideration ought to have been given to the grant of approval for use and development as proposed but excluding the pharmacy.

But that is not how the application was disposed of and the question before this Court is whether the applicant developer has a right of appeal to the Minister from the single decision that was made encompassing both the discretionary use and the use which was not permitted.

There are two statutory provisions which give a right of appeal to the Minister against planning decisions made by local authorities. Under s8A of the Act, it is provided that:

(a) under a Town Planning Scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of the responsible authority;

(b) a person has applied to the authority for such a grant; and

the applicant may appeal to the Minister against the authority's decision in accordance with Part V."

A right of appeal is also conferred by the scheme itself. By cl 2.7.8, it is provided that:

"Should an applicant ... be aggrieved by a decision of the council exercising a discretionary power under the scheme the applicant ... may appeal in accordance with Part V of the Act and the rules and regulations made pursuant to the Act."

Plainly, therefore, there is a right of appeal against the refusal of a development application for a discretionary use, that is, a use designated AA in the scheme table. I see no basis upon which this Court can stop the Minister from proceeding to deal with the appeal in question because, when all is said and done, it is an appeal against the refusal of a discretionary use.

There is a question as to how far the Minister can go in determining the appeal. The Minister's powers are set out in s8A(3) which provides:

"(3) The Minister may allow the appeal with or without conditions, affix further conditions, or reject the appeal either in whole or in part."

Those powers are wide enough to enable the Minister to allow the appeal with the condition that the pharmacy be excised from the development or reject the appeal insofar as it involves that particular use.

Senior counsel for the developer, Mr Barker QC, argued that the Minister was perfectly entitled to simply allow the appeal unconditionally and to thereby overturn the council's determination that the use for the purposes of a pharmacy was not an incidental use of the land for the purposes of a health centre. Mr Barker QC submitted that the council's determination on the issue of incidental use was itself a discretionary decision and therefore it was an exercise of a discretionary power against which the Act and the scheme gave a a right of appeal to the Minister. I would not accept this submission. The question whether the use for the purposes of a pharmacy was incidental to the use for the purposes of the medical complex, was simply a question of fact and degree. It was not a discretionary decision in any relevant sense. The determination whether or not a particular use is incidental to another use had to be made by the council in accordance with the objective facts. It was not a discretionary process in the sense that the council was at liberty to make a judgment that would create rights and duties. It is not to the point to say that opinions may differ on the question: see the discussion in Atlantic Civil Pty Ltd v Water Administerial Corporation (1995-1996) 39 NSWLR 468 per Giles J at 483 as to the distinction between discretionary judgments and determinations of fact. See also Mitchell v The Queen [1996] HCA 45; (1995) 184 CLR 333 at 345; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 and Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211. In the latter case, Gibbs CJ said, at 216-217:

"Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purpose of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree [my emphasis]."

In my opinion, the right of appeal to the Minister against decisions of the council exercising discretionary powers does not extend to determinations by the council that a use is not a use for incidental purposes. However, for the reasons stated above, I would discharge the order nisi.

Planning and Development Act 1928

Ex Parte & Ors v Mark Anthony Conlan [1998] WASCA 339 (18 December 1998)

City of South Perth v Fairway Heights Pty Ltd [1981] WAR 51

Australian Heritage Commission v Mt Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297

Bull v Attorney General for New South Wales [1913] HCA 60; (1913) 17 CLR 370

Ex Parte & Ors v Mark Anthony Conlan [1998] WASCA 339

At a glance

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Cases Cited (12)

Ex Parte & Ors v Mark Anthony Conlan [1998] WASCA 339 (18 December 1998)