Town planning - Development application - Grouped dwellings - Preliminary issue - Housing density - Development standards and requirements - Variation of development standards and requirements - Whether residential density code that applies to land or minimum and average site areas stipulated by Residential Design Codes of Western Australia (2002) can be varied under local planning scheme - Whether residential density code that applies to land or minimum and average site areas stipulated by Residential Design Codes of Western Australia (2002) are standards or requirements prescribed by the local planning scheme

Planning and Development Act 2005 (WA)

Residential Design Codes of Western Australia (2002), cl 3.1.1, cl 3.1.3, Table 1

Shire of Mundaring Town Planning Scheme No 3, cl 1.5, cl 4.1, cl 4.2, cl 4.3, cl 8.15, Pt 4

The residential density code and the minimum and average site areas stipulated by the Residential Design Codes of Western Australia (2002) cannot be varied under the local planning scheme

1 Mainbush Pty Ltd sought development approval for 37 grouped dwellings. This involved a housing density greater than that contemplated by the minimum and average site areas stipulated by the Residential Design Codes of Western Australia (2002) in relation to the residential density code that applied to the land under the local planning scheme. A preliminary issue arose as to whether the residential density code or the minimum and average site areas stipulated by the Codes in relation to that code could be varied under the scheme. The scheme allowed the variation of a standard or requirement prescribed by the scheme or set out in a clause of the scheme that also specified an objective.

2 Following the hearing, the Tribunal gave an oral decision. The Tribunal determined that the residential density code and the minimum and average site areas could not be varied under the scheme. The residential density code is not a standard or requirement prescribed by the scheme, but rather is a mechanism by which standards or requirements prescribed by the Codes are made applicable to land under the scheme. The minimum and average site areas are standards or requirements prescribed by the Codes, not by the scheme. Furthermore, if the minimum and average site areas were standards or requirements prescribed by the scheme, the prescription would include the limited power to vary these standards by up to 5% in certain circumstances under the Codes, which would exclude the general power of variation under the scheme. The development application was refused.

3 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

4 The Shire of Mundaring (Shire) has raised a preliminary issue for determination in planning review proceedings. The proceedings involve an application for review brought by Mainbush Pty Ltd (Mainbush) in relation to the Shire's decision to refuse approval to a development application for 37 grouped dwellings at No 1425 Jacoby Street, Mundaring (site).

5 The site is zoned "Residential" under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3 or Scheme). Clause 4.2(3) of the Scheme provides as follows:

"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Residential Design Codes of Western Australia (2002) (Codes)] shall conform to the provisions of those Codes and the Schedules to those Codes."

"The Residential Planning Code density applicable to land within the Scheme Area shall be determined by reference to the Residential Planning Code density numbers superimposed on the particular areas shown on the Scheme Maps as being contained within the outer edges of the solid black line borders or, where such an area abuts another area having a Residential Planning Code density, as being contained within the centre lines of those borders."

7 The Residential Planning Code density number that is superimposed on the area shown on the Scheme map that includes the site is "R12.5/R20".

8 Clause 4.3 of TPS 3 contains provisions for the special application of the Codes. Subclause (2) sets out requirements for dual-coded land such as the site for development in accordance with the higher code. The Shire accepts that the site is capable of development at the higher coding under cl 4.3(2) in this case, that is, at R20. The Scheme provisions for special application of the Codes are otherwise not relevant to the proposed development.

9 Clause 3.1.1 and Table 1 of the Codes prescribe a minimum site area for a dwelling of 440 square metres and an average site area per dwelling of 500 square metres for a grouped dwelling on land coded R20, although cl 3.1.3 of the Codes permits a variation of these minima by 5% if one of five criteria stated in that clause is met.

10 The minimum and average site areas of the grouped dwellings in the proposed development are below the minimum and average site areas specified in Table 1 of the Codes for the R20 code, even if a 5% variation were granted under cl 3.1.3. Consequently, the proposed development does not conform to the housing density provision of the Codes, contrary to cl 4.2(3) of the Scheme.

11 However, cl 8.15(1) of the Scheme states as follows:

"If a proposal, the subject of an application for Planning Approval, does not comply with a standard or requirement prescribed by the Scheme with respect to that development, the Council may, notwithstanding that non-compliance, approve the application subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied that:

approval of the proposal would be consistent with stated objectives and policies in the Scheme and the orderly and proper planning of the locality; and

the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the existing and future amenity of the locality." (Emphasis in bold added.)

12 In this context, the Shire has raised the following preliminary issue:

the residential density code that applies to the site; or

the minimum and average site areas stipulated by the Codes,

a "standard or requirement prescribed by the Scheme" capable of variation under cl 8.15(1) of the Scheme?

13 In its submissions, Mainbush has raised a second preliminary issue as to whether the minimum and average site areas stipulated by the Codes can be varied under cl 4.1 of the Scheme.

14 It is common ground that if the answer to either of these preliminary issues is "yes", then the proposed development is capable of approval, and that if the answer to each of the preliminary issues is "no", then the proposed development is not capable of approval, with the result that the application for review must be dismissed.

Is the residential density code a standard or requirement prescribed by the Scheme?

15 In its written submissions, and again today, Mainbush indicates that it does not contest the Shire's proposition that the residential density code which applies to the land is not a standard or requirement prescribed by the Scheme. Rather, Mainbush seeks a variation under cl 8.15(1) or, alternatively, under cl 4.1 of the Scheme of the minimum and average site areas stipulated by the Codes.

16 I agree with the joint position of the parties. The residential density code is not, in itself, a "standard or requirement". It is not "a level which is regarded as normal, adequate or acceptable" or "something which is demanded, obligatory or needed" - see O'Donovan and Town of Vincent [2005] WASAT 120 at [39]. Indeed, in itself, the residential density code is meaningless. Rather than being a standard or requirement prescribed by the Scheme, the residential density code is the mechanism by which standards or requirements prescribed by the Codes are made applicable to land governed by the Scheme. The answer to par (a) of the Shire's preliminary issue is "no".

Are the minimum and average site areas stipulated by the Codes a standard or requirement prescribed by the Scheme?

17 Mainbush submits that the minimum and average site areas set out in Table 1 of the Codes is a standard or requirement which regulates an aspect of the proposed grouped dwelling development. I agree. However, the minimum and average site areas set out in Table 1 of the Codes are standards or requirements prescribed by the Codes, not by the Scheme, and are therefore not amenable to a variation under cl 8.15(1) of the Scheme.

18 The verb "prescribe" is relevantly defined in The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 1125 as "to lay down, in writing or otherwise, as a rule or a course to be followed". In this case, the minimum and average site areas are laid down in writing as a rule to be followed in cl 3.1.1 and Table 1 of the Codes. As noted earlier, cl 4.2(3) of the Scheme requires that:

"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of those Codes ..."

19 This means that the proposed development is required to conform to the housing density provisions of the Codes. However, it does not mean that the minimum and average site areas set out in Table 1 of the Codes are "prescribed by the Scheme". Clause 1.5 of the Scheme indicates what documents comprise the Scheme, and does not include the Codes.

20 Mainbush submits that if the site area requirements of the Codes are not "prescribed by the Scheme", then they are not applicable at all and the preliminary issue falls away. However, the site area requirements of the Codes are applicable because cl 4.2(3) of the Scheme requires residential development to conform to the Codes, including the housing density requirements. The requirement to conform to a standard set by the Codes is not relevantly equivalent to a prescription of the standard. Rather, the standard is prescribed by the Codes, and the Scheme requires conformity to the Codes.

21 Furthermore, although the words "[u]nless otherwise prescribed in the Scheme" in cl 4.2(3) allow the Scheme to, in effect, vary the minimum and average site area requirements set out in Table 1 of the Codes in their application to residential development under the Scheme, the Scheme does not relevantly specify any variation in this case. In particular, contrary to Mainbush's submission, cl 8.15 is not a prescription referred to in cl 4.2(3). Clause 8.15 permits variation of standards or requirements prescribed by the Scheme. However, cl 4.2(3) contemplates variation of standards or requirements prescribed by the Codes and made applicable to land within the Scheme area by that clause.

22 Mainbush also submits that cl 8.15 "expressly carves out what is excluded from the ambit of its discretion" by subclause (3). That subclause is as follows:

"Without affecting the generality of the foregoing, and for the purpose of clarification, this clause does not permit the Council to vary any of the permissibility designations in the Zoning Table (including such provisions in clauses 3.2 to 3.5 inclusive), or to permit a use or development which would be prohibited, or otherwise would not be permitted by reason of Part VI of the Scheme."

23 However, the minimum and average site areas set out in Table 1 of the Codes is excluded from the ambit of the discretion conferred by cl 8.15(1) by the words of that subclause, namely, "prescribed by the Scheme". Furthermore, subclause (3) does not purport to exhaustively state the categories of exclusion from variation under the clause.

24 Finally, Mainbush submits that had the Council wished to exclude from the ambit of cl 8.15(1) variation of standards or requirements stated in the Codes, it could have done so expressly, and gives examples of other planning schemes in which that has been done. However, while other schemes may expressly exclude variations of standards or requirements stated in the Codes, if the Council had done so in this case, it would be, in my opinion, for more abundant caution only. The words of cl 8.15(1) in themselves exclude their application in the circumstances of this case.

25 Finally, in relation to this aspect of the matter, I note that even if the minimum and average site areas stipulated by the Codes were a standard or requirement prescribed by the Scheme, on the proper interpretation of cl 8.15(1), that clause would not enable a variation to be made, because, as I noted earlier, cl 3.1.3 of the Codes itself confers a prescribed and limited discretion to vary minimum and average site areas.

26 In Anthony Hordern and Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1 at 7, Gavan Duffy CJ and Dixon J held as follows:

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

27 In this case, cl 3.1.3 of the Codes prescribes the mode, conditions and restrictions for varying the minimum and average site areas set out in Table 1. Consequently, if the minimum and average site areas were standards or requirements prescribed by the Scheme, cl 8.15(1) of the Scheme would be read in the context of cl 3.1.3 of the Codes, such that the general expression of cl 8.15(1) of the Scheme would be relevantly excluded.

28 In other words, if the minimum and average site areas were standards or requirements prescribed by the Scheme, their prescription would include cl 3.1.1 and cl 3.1.3 of the Codes, and they could only be varied in accordance with the prescribed and limited power in cl 3.1.3 and not in accordance with cl 8.15(1) of the Scheme. I note that this is consistent with the notation in the housing density requirements of the Codes stated at page 44:

"The minimum areas stipulated in Column 3 or 4 of Table 1 are not subject to variation except as set out under 3.1.2 and 3.1.3 of this Element."

Can the minimum and average site areas stipulated by the Codes be varied under cl 4.1 of the Scheme?

Where the Development Standards in this Part identify objectives, the intent is for the Council to apply those objectives to encourage better design, siting of buildings and land management. Where minimum spatial requirements have been specified, the intent is to ensure that at least minimal standards are maintained.

In assessing applications for Planning Approval, the Council shall apply the general objective of encouraging quality development and good design. The Council may relax any minimum standard or requirement to achieve that general objective, if in the opinion of the Council the proposed development satisfies the objectives stated in the relevant clauses of this Part."

30 It is apparent, in my opinion, from the terms of cl 4.1(2) itself and also when that subclause is read in the context of subclause (1), that it only allows relaxation of any minimum standard or requirement specified in a clause of Pt IV of the Scheme that also identifies the objective sought to be achieved by the standard or requirement in question. Clause 4.1(2) only permits the Council to relax any requirement or standard to achieve the general objective of encouraging quality development and good design if, in the opinion of the Council, the proposed development "satisfies the objectives stated in the relevant clauses of this Part". These quoted words plainly indicate that cl 4.1(2) can only be used to vary a standard or requirement specified in a clause in Pt IV of the Scheme which has a corresponding objective stated in that clause.

31 The minimum and average site areas in question in these proceedings are not stated in a clause in Pt IV of the Scheme that contains a corresponding objective. The minimum and average site areas specified in the Codes cannot, therefore, be varied under cl 4.1 of the Scheme.

32 Neither the residential density code that applies to the site nor the minimum and average site areas stipulated by the Codes is a standard or requirement prescribed by the Scheme capable of variation under cl 8.15(1) of the Scheme. Furthermore, the minimum and average site areas stipulated by the Codes cannot be varied under cl 4.1 of the Scheme. As the proposed development does not conform to the housing density provisions of the Codes, the development application must be refused.

1. The preliminary issues are both answered in the negative.
2. The application for review is dismissed.
3. The decision of the respondent to refuse development approval for 37 grouped dwellings at No 1425 Jacoby Street, Mundaring is affirmed.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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