MATTER : An application for a Declaration as to Questions of Law, pursuant to Order 58 Rule 11 of the Rules of the Supreme Court 1971 against the Honourable Alannah MacTiernan, Minister for Planning and Infrastructure

An application for leave pursuant to Section 47A of the Limitation Act 1935

THE HONOURABLE ALANNAH MACTIERNAN MLA MINISTER FOR PLANNING AND INFRASTRUCTURE

Town planning - Validity of Town Planning Scheme - Relationship of Town Planning Scheme to Metropolitan Regional Planning Scheme - Turns on own facts

Metropolitan Region Town Planning Scheme Act 1959, s 34, s 35

Town Planning and Development Act 1928, s 7

Bonton Pty Ltd v City of South Perth, unreported; SCt of WA; Library No 4382; 23 December 1981

Ex parte Helena Valley/Boya Association Inc v State Planning Commission & Beggs (1989) 2 WAR 422

Foster v Aloni [1951] VicLawRp 69; [1951] VLR 481

Minister of Health v R; Ex parte Yaffe [1931] AC 494

Pearse v City of South Perth [1968] WAR 130

The King v Minister of Health; Ex parte Davis [1929] 1 KB 619

1 MASTER SANDERSON: This is the plaintiffs' application for certain declarations in relation to the validity of the City of Perth Town Planning Scheme No 5. The originating summons was issued on 28 May 2001 and first came on before Pidgeon J on 6 July 2001, when an amendment to the amended originating summons was allowed with the effect that the principle relief sought by the plaintiffs was a declaration that:

"The City of South Perth Town Planning Scheme No 5 is required by law to be consistent with, complementary to and not a substitute for the Metropolitan Region Scheme and its effects: ss 34 and 35 Metropolitan Region Scheme Act, 1959."

2 The plaintiffs are the owners of a block of land in Susan Street, Kensington which is located in the City of South Perth. They applied for approval to construct a second dwelling on the block and there was a deemed refusal by the City of South Perth of their application. There followed lengthy correspondence between the plaintiffs and the City of South Perth and subsequently the Minister for Planning and Infrastructure ("the Minister"). Eventually the plaintiffs attempted to appeal to the Minister against the decision of the City of South Perth but the then Minister refused to consider their appeal. He considered he did not have jurisdiction to do so. The plaintiffs in a previous action then applied for writs of certiorari and mandamus to enforce what they said was their right to have the Minister consider their appeal. The matter came on before the Full Court and the plaintiffs' applications were dismissed: see Marshall & Anor v The Honourable Graham Kierath MLA, Minister for Planning [2001] WASCA 70. In the course of his reasons, Wallwork J set out facts and background to the prerogative writ applications. Although the question for determination on this originating summons is different to the question before the Full Court on the application for prerogative writs, the facts and background set out by his Honour put the nature of the present application in context. His Honour said (at par 4 to par 10):

"4 The applicants claim that by virtue of the uniform general by-laws of June 1961 their block was declared to be suitable for the construction on it of two dwellings. Further, that since that time, although a number of town planning schemes have become operative in South Perth, they have retained their right to apply for approval for the relevant development pursuant to the provisions of the metropolitan region scheme, which they say are still applicable.

5 The applicants contend that the presently operative Town Planning Scheme in South Perth (No 5) is complimentary to, and not a substitute for, the provisions in the Metropolitan Region Scheme and that as their application for approval to commence development has been deemed to have been refused by the City of South Perth, they now have a right of appeal to the Minister pursuant to cl 33(1) and cl 33(2) of the Metropolitan Region Scheme.

6 The relevant application was lodged with the City of South Perth on 5 August 1999. It was an application to construct a second dwelling on the block for "a separate family occupancy". The second dwelling was to be separate from the already existing dwelling and both dwellings would have street frontages. The Council of the City of South Perth took the view that it could not consider the application as the proposed construction was prohibited by its Town Planning Scheme No 5.

7 The applicants accept that the construction of the proposed dwelling would not be in conformity with the R.15 density code which the City says is applicable to their land pursuant to Town Planning Scheme No 5. However, the applicants say that the density code does not, in all the circumstances, have the effect of preventing their application from succeeding. They claim that the City has a discretion to allow the application pursuant to the provisions of the Metropolitan Region Scheme which they claim is still applicable.

8 The applicants concede that if the provisions of Town Planning Scheme No 5 govern the construction of the building on their land, the Council would not have had a discretion to allow the application to be approved because the proposed building would not comply with the density code. However, they say that as their application is in accord with the Metropolitan Region Scheme, a discretion to allow the development does exist because of cl 30 of the Metropolitan Region Scheme.

9 The applicants claim that as their applications have been refused, they have a right of appeal to the Minister pursuant to cl 33 of the Metropolitan Region Scheme.

10 The applicants contend that they originally had had a right to apply to build a duplex on their block pursuant to cl 11.4 of the Uniform Building By-Laws. They say that the town planning schemes which the City of South Perth later introduced did not take away their rights under cl 11 of the by-laws because nothing in the schemes, including the presently relevant scheme No 5, has been inconsistent with their right to construct a duplex pursuant to the building by-laws. The applicants claim that the 1989 Town Planning (Buildings) Uniform General By-Laws have succeeded the earlier by-laws (now repealed) and that their rights under the original by-laws still prevail."

3 (This application is not one which is generally speaking, within the jurisdiction of a Master: see O 60 r 1(1)(a)(iv). The matter was, however, referred to a Master by the Judge in charge of the civil list pursuant to O 60 r 1(1BA).)

4 At the hearing of the application the plaintiffs who appeared in person, through Mr Marshall, presented a detailed argument in support of their application. They had earlier filed written submissions. Having read those written submissions and listened carefully to the argument put by Mr Marshall, and having re-read a transcript of the proceedings, I am not entirely sure of the basis upon which it is said that the Town Planning Scheme is invalid. For convenience sake I will refer to the 1986 City of South Perth's Town Planning Scheme No 5 as simply "the Town Planning Scheme". As I understand the position adopted by the plaintiffs, they say that the Town Planning Scheme is inconsistent with either the Metropolitan Region Town Planning Scheme Act 1959 ("Metropolitan Region Scheme") and/or the by-laws made under that scheme. In an attempt to adequately address all points raised by the plaintiffs I have approached the matter by examining broadly the question of whether the Town Planning Scheme is in all respects valid and operative.

5 The first argument put by the plaintiffs was that the Town Planning Scheme was never actually adopted by the Council of the City of South Perth in its amended form. The plaintiffs allege that the Town Planning Scheme has two deficiencies. First, there are differences between the draft scheme which was adopted in 1981 and secondly that the Town Planning Scheme map is not properly stamped.

6 Dealing with the first of these complaints it is clear that the Town Planning Scheme was adopted by a resolution of the Council of the City of South Perth on 26 August 1986. A copy of the resolution of the Council was tendered by the defendant without objection during the course of the hearing. The Town Planning Scheme was granted final approval by the then Minister, pursuant to the provisions of s 7 of the Town Planning and Development Act 1928 on 27 August 1986. Notice of that approval was published in the Government Gazette on 25 September 1986. Whatever may have been the differences between the draft scheme first published in 1981 and the Town Planning Scheme adopted in 1986, there can be no question but that the Town Planning Scheme was properly adopted according to law.

7 Turning then to the second point, the Town Planning Scheme map which appears as annexure "A" to the affidavit of Mr James Griffith Jordan, sworn 5 December 2000 (in the previous action) has on it two stamps. One stamp has not been completed. The space left which should have been filled in with the date of the Council meeting is left blank and the space for the signature is also blank. However, there is a further stamp which has been completed and reads as follows:

"The common seal of the City of Perth was hereunto affixed on this 13th day of August 1986 pursuant to a resolution passed this 13th day of August 1986 in the presence of ..."

8 The signature of the Deputy Mayor and the Town Clerk appear under this seal. Clearly the Council has approved the Town Planning Scheme. There is no substance to this aspect of the challenge to the validity of the Town Planning Scheme.

9 That then leads to the broader question of whether or not the Town Planning Scheme is inconsistent with the Metropolitan Region Scheme. As I understand the plaintiffs' argument it was not suggested that the zonings provided for under the Town Planning Scheme were inconsistent with the zonings under the Metropolitan Region Scheme. The zoning of the area in question under the Metropolitan Region Scheme is urban and under the Town Planning Scheme, residential. There is clearly no conflict between these two zonings. Nor is there any doubt that there is a concurrent requirement for approval for development under the Town Planning Scheme and the Metropolitan Region Scheme. The Metropolitan Region Scheme contemplates that there will be a requirement under a Town Planning Scheme for approval under the Metropolitan Region Scheme in addition to approval under the Town Planning Scheme. Clause 26 of the Metropolitan Regional Scheme says that an approval under a Town Planning Scheme will be an approval, or taken to be an approval, under the Metropolitan Region Scheme. As I say, there was no dispute between the parties on either of these two points. What I understand to be the plaintiffs' complaint is that the incorporation of the R Codes in the Town Planning Scheme is inconsistent with the site requirements in some or all of the uniform building by-laws which were or have been incorporated in the Metropolitan Region Scheme. Given that inconsistency the plaintiffs say that the Town Planning Scheme cannot stand.

10 It is the plaintiffs' position that in 1961 under the regulatory regime then applying, they could have obtained approval to build a duplex on the land. It is useful then to trace through changes that have been made to the uniform by-laws and how these by-laws now relate to the Town Planning Scheme. The starting point is s 433 of the Local Government Act 1960. This section empowers a Council to make by-laws. These by-laws could cover a range of matters including at s 433(25):

"for prescribing the minimum area and the minimum depth and the width and frontage of land upon which buildings of a specified class may be erected;"

11 Section 433A provides that the Governor may publish in the Gazette uniform general by-laws on any of the topics on which by-laws may be made by the Council. In the Gazette of 23 June 1961 notice was published of an Order in Council setting out uniform general by-laws. These by-laws were made under s 433A and were to apply to Council specified in the second schedule to the by-laws. The City of South Perth was one of the cities specified in the second schedule. By cl 22(a), the by-laws applied to private dwellings. Under cl 34(a) site restrictions for private dwellings, including duplexes were specified. The specifications are given in imperial measurements but it is conceded by the defendants that cl 34 would have allowed construction of a duplex on the plaintiffs' land.

12 The Uniform Building By-laws 1961 were repealed by proclamation which was published in the Gazette on 25 August 1965 and the Uniform Building By-laws 1965 were promulgated. By-law 204(a) deals with private dwellings, including duplexes, and once again the specifications would have allowed the plaintiffs to erect a duplex on the property. It would appear that for one reason or another these by-laws lapsed on 16 September 1965 and were repromulgated on 15 October 1965. Nothing turns on the apparent hiatus in the operation of the by-laws.

13 In 1974 a new set of Uniform Building By-laws were introduced. They were published in the Gazette of 19 December 1974. Under these by-laws the term "General residential zone" was defined to mean "that portion of the district that has been declared as such by the council acting pursuant to Part 11:"

14 By-law 6.1 deals with Classes of Buildings. It is not entirely clear into which classification the plaintiffs proposed development would fall - it is either Class I or Class IA. By-law 11.4(1)(a) provides that buildings of Class I or IA shall not be constructed:

"on any site having an area, in the case of a Class I building of less than 557m2 or a frontage of less than 15m, or in the case of a Class IA building, an area of less than 911m2 or a frontage of less than 20m, except as provided by by-law 11.10;"

15 As I understand the plaintiffs' position, what they are seeking to construct on the property are two self-contained non-joined duplexes. Whether that understanding is correct or not, it is clear that the development proposed by the plaintiffs falls into either Class I or Class IA within the terms of the 1974 by-laws. That means that any right which the plaintiffs may have had to construct a duplex on the property was lost to them by the introduction of the 1974 Uniform Building By-laws.

16 By-law 11.4 notes as an exception cl 11.10. This clause is, in effect, a sunset clause which allowed a Council to permit a Class I building, but not a Class IA building, to be constructed on a site smaller in area than 557 square metres if the site comprised the whole of a lot shown on a plan of subdivision approved by the appropriate authority before the date on which the 1974 by-laws came into force in the district. What the clause is dealing with is lots of less than 557 square metres where approval has already been obtained. The plaintiffs do not fall within this exemption.

17 In 1989 s 433A of the Local Government Act was repealed and substituted. The new s 433A allowed the Governor to make regulations, as opposed to by-laws, for all or any Part of the purposes for which by-laws could have been made by a council. Consequent upon this amendment, the Building Regulations 1989 were introduced. Clause 5(1) of these regulations was in the following terms:

"Subject to these regulations, the Building Code applies to and in relation to any building that can be classified according to use under Part A(3) of that Code and to any work referred to in Part XV of the Act and in the Building Code."

18 Clause 4 of the regulations provided exemptions to the operation of cl 5. The only exemption which could be relevant to these proceedings was, in effect, a sunset clause to be found in cl 4(1)(b) which exempted buildings approved before the regulations came into effect. Once again, the plaintiffs do not fall within the exemption.

19 The Building Regulations 1989 did not deal with what were considered to be Town Planning matters such as lot sizes and boundary set-backs. This was left to individual Councils to deal with through Town Planning Schemes. However, it was found that some Councils did not have Town Planning Schemes and it was therefore necessary for the Government to make some general provision covering such matters. That was done by the Town Planning (Buildings) Uniform General By-laws 1989 which were introduced pursuant to the provisions of the Town Planning and Development Act 1928. Pursuant to cl 4(1) of these by-laws, the by-laws were to apply throughout the State. The by-laws then provide for General Residential Codes and lot sizes which have minimums for various classifications. As indicated above, the by-laws were made under the Town Planning and Development Act. The power to make these by-laws is to be found in s 31(1) of that Act. Section 31(2) is in the following terms:

"Where any by-law made under section 248 of the Local Government Act 1960, or under the last preceding subsection of this section, is inconsistent with any town planning scheme approved before or after the making of such by-law, and having effect in the district, or in part of the district, in which such by-law is in force, then to the extent of such inconsistency, and in the part of the district in which such scheme has effect, the provisions of such scheme shall prevail."

20 The effect then is that if there is any conflict between the current by-law regime and the Town Planning Scheme, the Town Planning Scheme is to prevail. There is no basis upon which it can be said that any by-laws have been incorporated into the Metropolitan Region Scheme. If that had been done there may be a difficulty because pursuant to s 34 of the Town Planning and Development Scheme Act, Town Planning Schemes must be consistent with the Metropolitan Region Scheme.

21 The plaintiffs did raise an argument in relation to s 35 of the Metropolitan Region Scheme. That is a transitional provision which deals with two contingencies. In par 1(a) it deals with a situation where there is no Town Planning Scheme in force and where it is necessary for a scheme to be prepared. In that case the scheme is required to be consistent with the provisions of the Metropolitan Region Scheme. In par 1(b) where a scheme is operating and is inconsistent with the Metropolitan Region Scheme, then it must be amended to bring it into line with the scheme. In my view there is nothing in s 35 which in any way advances the plaintiffs' case.

22 The Town Planning Scheme cl 2 itself says that it is to apply to the whole of Municipal District of the City of South Perth. This area is defined as the "scheme area". By cl 4 the 1972 Town Planning Scheme No 2 is revoked. By cl 6 the provisions of the Town Planning Scheme are declared to apply where they are inconsistent with the provisions of any by-law. Clause 7 incorporates the Residential Planning Codes and makes some variation to these codes which are not presently relevant. The effect of all this is that the Town Planning Scheme is a scheme for the whole of the District made under s 7 of the Town Planning and Development Act which has the force of law. It has not been shown by the plaintiffs that it is in any respect inconsistent with the Metropolitan Region Scheme. Moreover, cl 21 of the Metropolitan Region Scheme is in the following terms:

"Where any provision of a Town Planning Scheme of a local authority that has been duly made subsequent to this Scheme having the force of law, and which has been approved by the Minister and published in the Government Gazette, is at variance with any provision of this Part, the provision of the Town Planning scheme of the local authority shall prevail."

23 If there was any conflict between the Metropolitan Region Scheme and the Town Planning Scheme, and as I have said I can find none, the Town Planning Scheme would prevail. This clause effectively undermines the plaintiffs' argument.

24 The plaintiffs also referred to the provisions of the Interpretation Act 1984. In particular, reference was made to s 37(1)(c) of that Act which is in the following terms:

"Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears, effect any right, interest, title, power or privilege created, acquired, accrued or established or exercisable or any status or capacity existing prior to the repeal."

25 As I understand the plaintiffs' position, they say that in 1961 they could have constructed a duplex dwelling on the land. Subsequent amendments to and repeals of various by-laws have meant that they can no longer construct such a dwelling. It was submitted that by virtue of s 37(1)(c) their formerly existing right subsists. It is clear, however, that various enactments have exhibited a contrary intention to that put forward by the plaintiffs. Perhaps more importantly, various amendments and repeals did not affect any right which had accrued to the plaintiffs. Rather, in 1961 there was simply an absence of a prohibition under the terms of the by-laws as they applied at that time. The position may have been different if an approval had been obtained in 1961. However, even then, the sunset provisions of various subsequent enactments would have protected the plaintiffs' position. In the present situation, the Interpretation Act is of no assistance to the plaintiffs.

26 As a subsidiary point the defendants relied upon s 47A of the Limitation Act 1935. Having reached the conclusion that the plaintiffs' application must be dismissed, I need not deal with this aspect of the case in any detail. However, I note in passing that the Town Planning Scheme has been in effect since 1986 and the plaintiffs have been attempting to develop their land since 1994. In the circumstances, it seems to me that s 47A would operate to prevent this claim succeeding. That reasoning is consistent, I think, with the High Court decision in Yougarla v The State of Western Australia [2001] HCA 47.

27 For these reasons the plaintiffs' originating summons ought be dismissed. The plaintiffs ought pay the defendant's costs on the summons, including reserved costs.