Court of Appeal (WA)|2002-10-04|Before: Parker J, Murray J, Anderson J

Marshall & Anor v The Honourable Alannah Mactiernan Mla Minister for Planning and Infrastructure [2002] WASCA 274 (4 October 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MARSHALL & ANOR -v- THE HONOURABLE ALANNAH MACTIERNAN MLA MINISTER FOR PLANNING AND INFRASTRUCTURE [2002] WASCA 274

THE HONOURABLE ALANNAH MACTIERNAN MLA MINISTER FOR PLANNING AND INFRASTRUCTURE

Local Government - Town Planning - Appeal to Minister - Residential R zoning under local government scheme - Whether inconsistent with Urban zoning under Metropolitan Region Scheme - Whether development approval required under both local government and Metropolitan Region Scheme - Whether inconsistency between approval and appeal provisions of local government scheme and Metropolitan Region Scheme

Baker v Shire of Albany (1994) 14 WAR 46

Bingham v England (1996) 17 WAR 226

Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253

Clyde Engineering Co Ltd v Cowburn [1926] HCA 6; (1926) 37 CLR 466

Marshall v MacTiernan [2001] WASC 294

Pilbara Iron Ltd v Bonotto (1994) 11 WAR 348

R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia [1977] HCA 34; (1977) 137 CLR 545

R v Shire of Perth; Ex Dewar & Burridge [1968] WAR 149

Yougarla & Ors v Western Australia & Anor [2001] HCA 47; (2001) 181 ALR 371

Yougarla v The State of Western Australia (1999) 21 WAR 488

1 MURRAY J: I have had the advantage of reading in draft the reasons for decision of Parker J. I am in complete agreement with them. They explain for me the reasons why this appeal should be dismissed.

2 ANDERSON J: I have read the judgment of Parker J and agree with it. There is nothing I can usefully add.

3 PARKER J: The appellants are the owners of land at the corner of Susan Street and Gwenyfred Road, Kensington which is within the local government district of the City of South Perth.

4 By originating summons issued on 28 May 2001, as amended, the appellants sought by declaratory relief to have a number of questions of law determined by the Court. It is unnecessary to spell out their full terms and effect but the general purport was to seek declarations to the effect that for relevant purposes the provisions of the Metropolitan Region Scheme ("MRS") applied to the development of their land and not the City of South Perth Town Planning Scheme No 5 ("TPS5"), and that the Minister had a duty to determine an appeal, which the appellants had taken to the Minister from a deemed refusal of development approval by the City of South Perth, on that basis. In particular, a declaration was sought by the appellants that TPS5 is required by law to be consistent with, complementary to, and not a substitute for the MRS and its effects.

5 There had been a failure to comply with the requirements of the Limitation Act 1935 (WA) so that the appellants also sought leave to bring the application pursuant to s 47A(3) of that Act.

6 The learned Master in his reserved decision delivered 24 October 2001 dealt with the substantial merits that were raised by the questions of law posed in the application and determined on the merits that the originating summons should be dismissed. The reasons do not specifically consider whether leave to bring the proceedings should be granted although the learned Master did refer to a difficulty which he saw with that application.

7 The appellants proceeded by notice dated 9 November 2001 to appeal from that decision. While counsel for the appellants at the hearing sought to advance the view that the hearing before the Master ought properly to be viewed as merely an application for leave to institute the proceedings pursuant to the Limitation Act, the notice of appeal does not treat the Master's decision as merely an interlocutory one. Nor does it raise the failure expressly to consider the application for leave as a ground

of appeal, although ground 8 raises s 47A of the Limitation Act for a different purpose. The notice of appeal proceeds on the basis that the full merits of the appellants' case were heard and determined by the Master and each of the first seven extensively particularised and supported grounds of appeal are directed to the merits of the appellants' case. The appellants' and respondent's submissions before this Court, as had the submissions before the Master, canvassed the merits fully. In the circumstances the proper course is to proceed on the basis that the full merits of the appellants' case are in issue on this appeal, as they were before the Master, and to deal with those merits. This procedure, of course, avoids the appellants incurring further unnecessary costs. The critical issues are all issues of law and do not turn on matters of fact. To the extent that matters of fact have any relevance to subsidiary issues, the evidentiary materials that are before this Court on affidavit are extensive and adequate for this purpose.

8 The full statement of the grounds of appeal and the particulars in support occupy some seven typed pages and it is unnecessary to set them out in full. Ground 3 was not pursued and it was accepted that nothing turns on ground 1. The issues raised by each of the remaining grounds will be sufficiently identified in the course of these reasons.

9 It is undisputed that the land of the appellants is, and at all material times was, zoned:

• "Urban" under the Metropolitan Region Scheme ("the MRS"), and

• "Residential R", with an R-Code Density of "R15", under the TPS5.

10 There is presently an old, small, single storey dwelling constructed on the land and that has been the case at all material times.

11 On 27 July 1999 the appellants applied to the City of South Perth ("the City") on MRS Form 1 for approval to commence development on the land. The description of the proposed development was:

"Extension of existing house to provide accommodation for separate family occupancy. Addition of carport to Gwenyfred Road frontage and demolition of existing outbuilding."

This description is, to say the least, inaccurate and misleading as the plan submitted with the application clearly provided for the construction of a separate complete dwelling of two floors, the upper floor being within the roof loft of that dwelling. There was to be a new double carport on the Gwenyfred Road frontage to serve the existing dwelling, and also a new double garage on the Susan Street frontage, to serve the proposed new dwelling. The proposed double garage was to be constructed between the proposed new dwelling and the existing dwelling. While each of the existing and proposed dwellings and the proposed garage and carport would be distinct, self-contained and separate structures of differing architectural styles, a non-functional architectural feature, namely a small raised wall at above head height of reinforced brickwork, would connect each of the two dwellings to the proposed garage.

12 The application dated 27 July 1999 was returned to the appellants under cover of a letter dated 30 July 1999 from the City in which inter alia the view was advanced that the proposed development was incorrectly described and was really for a proposed addition of one grouped dwelling to an existing residence to form two grouped dwellings, and further that the use of MRS Form 1 by the appellants was incorrect, the correct form being the TPS5 Schedule E Form - Application for Planning Consent. The appellants sent the original application back to the City under cover of a letter dated 5 August 1999, although noting that the drawings now accompanying the application were slightly different. The differences were not material for present purposes. Whether this was a fresh application or the maintenance of the earlier application of 27 July 1999 is not an issue of substance. By letter dated 16 August 1999 the application and plans were again returned, the City repeating the observations contained in its earlier letter. It was also said that the Council of the City was unable to consider the proposal because it had not been correctly submitted, and that, even had the correct application form been used, the Council would have been obliged to refuse the application because, in essence, an additional grouped dwelling on the appellants' land could not be approved as this did not comply with the Residential Planning Codes. TPS5 incorporated the Residential Planning Codes.

13 The application for planning approval not having been approved within the statutory period it was deemed to be refused. On that basis the appellants appealed against the refusal to the then Minister for Planning by notice dated 26 November 1999. The then Minister gave his decision on 14 April 2000. In essence, the Minister concluded there was no right of appeal as a proper application had not been lodged with or accepted by the City, and further, that had there been a right of appeal, the appeal would have been rejected as the intended development was not permitted under "current and operative legislation".

14 By decision delivered on 13 March 2001 this Court refused an application for writs of certiorari and mandamus in respect of that decision of the then Minister: Marshall & Anor v The Honourable Graham Keirath MLA, Minister for Planning [2001] WASCA 70. There had been two possible avenues of appeal to the Minister. By cl 33 of the MRS an appeal might be brought in relation to the refusal of a development application under the MRS "... except where the refusal ... is in accordance with the provisions of an operative town planning scheme ...". By cl 96 of TPS5 an appeal lay in relation to "the exercise of a discretionary power under TPS5". The decision of this Court on 13 March 2001 dealt with each of these. Paragraphs 22 and 23 provide a convenient summary:

"22. ... there is therefore no discretion in the City to grant approval for an application which does not comply with the requirements of the Residential Planning Codes.

23. The refusal of the application by the City of South Perth was in accordance with the Town Planning Scheme No 5 and did not involve any element of discretion. For those reasons, the City could not have approved the application. There is therefore no permissible appeal to the Minister ...."

15 While in many respects the arguments considered and dealt with by this Court in the decision on 13 March 2001 are, in substance, the same as arguments advanced on this present appeal, the appellants point out that the hearing before this Court in 2001 proceeded on the basis of an assumption, by way of concession, that "if" the provisions of TPS5 governed the construction of the building on the appellants' land the Council would not have a discretion to allow the application because the building would not comply with the Residential Planning Codes. The appellants having failed on that basis, they now seek, in effect, to challenge the validity of the TPS5, or at least the validity of its incorporation of the Residential Planning Codes. While there may be issues of res judicata or issue estoppel, it is clear that the previous decision proceeded on an assumption or concession which is now disputed as a matter of law. In the circumstances, and especially in view of the prolonged history of this dispute between the appellants and the City and the Minister, it is preferable in my view to deal with the substance of the matter at this stage.

16 The Metropolitan Region Scheme ("MRS") came into effect on 30 October 1963 but has been amended many times since then. The MRS was made pursuant to s 30 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) ("the MRS Act"). By s 32(2) of the MRS Act the MRS has effect "as though its provisions were enacted by this Act". By s 30 the MRS applies in respect of the whole of the metropolitan region as described in the third schedule of the Act which may be loosely described as the extended or greater metropolitan area of Perth. By the first schedule to the Act the City of South Perth is one of some 28 local governments the districts of responsibility of which, in combination, comprise the metropolitan region.

17 It is the effect of s 5 of the MRS Act that it, and therefore the MRS itself, applies only to the metropolitan region. In addition, however, by s 5(2), the provisions of the Town Planning and Development Act 1928 (WA) (the "Planning Act") "except as modified by this Act, apply to the metropolitan region". Hence, save for modifications made by the MRS Act, both the Planning Act and the MRS Act apply to the district of the City of South Perth. TPS5 is made by the City pursuant to the Planning Act.

18 Section 3 of the MRS Act provides:

"This Act shall be construed in conjunction with the Town Planning Act, as if the provisions of this Act were incorporated with and formed part of that Act, but where the provisions of this Act are in conflict or are inconsistent with the provisions of that Act, the provisions of this Act prevail to the extent to which they are so in conflict or inconsistent."

19 Section 35 of the MRS Act required local governments within the metropolitan region to take steps, within three years from the day the MRS first had the force of law, to amend an existing local scheme so that it conformed with the provisions of the MRS or, where there was no local scheme operating in the district of the local government, to prepare and submit to the Minister for approval a local scheme which is in accordance and consistent with the provisions of the MRS. There were provisions to ensure compliance with those requirements, either within the three year period, or within an extended period authorised by the Minister. Thereafter by s 35A of the MRS Act, where the MRS is amended, the local government of a district affected by the amendment is required, no later than three months after the date upon which the MRS amendment has the force of law, to resolve to amend its local scheme to accord with and be consistent with the amendment to the MRS, and to forward within a reasonable time directed by the Minister such an amendment for approval. By s 35A(2a) the Minister may require a local government to modify such an amendment to ensure that it is in accordance with and consistent with the MRS. If the local government fails to comply with such a requirement the Minister is empowered to implement it by s 35A(iii).

20 Thus it is the scheme of the MRS Act that local schemes made under the Planning Act should be brought into conformity with the MRS. With respect to new local schemes made after the MRS had the force of law, such as TPS5, s 34 of the MRS Act provides that a local government shall not make a new local scheme and a new local scheme "shall not be approved by the Minister" unless its provisions "are in accordance with and consistent with" the MRS.

21 In the present case it is submitted by the appellants that by virtue of what they contend are inconsistencies between TPS5 and the MRS, within the meaning of s 34 MRS Act, the Minister ought not to have approved TPS5. The consequence, it is submitted, is that TPS5 is invalid and of no force or effect, or, alternatively, that at least to the extent of those inconsistencies TPS5 is invalid and of no force or effect.

22 It is a question of some complexity whether it was the intended operation and effect of s 34 that, a failure by the Minster to identify what may later be found to be an inconsistency between a local scheme and the MRS, and to require the modification of the proposed local scheme to remove the inconsistency pursuant to Planning Act s 7(2a), before approving the local scheme, should result in the invalidity of the local scheme or the inconsistent part of it. That is so, in particular, because s 3 of the MRS Act expressly provides that to the extent of any inconsistency the provisions of the MRS prevail over the provisions of a local scheme. That is the effect of MRS Act, s 3 because, by the Interpretation Act, s 46(1) and (2), the references to "this Act" and "that Act" in s 3 include respectively the MRS and a local scheme such as TPS 5 made under the Planning Act, they each being "subsidiary legislation" as defined by s 5 of the Interpretation Act. That being so, there appears to be no need or reason for a failure of the Minister to identify and secure the removal of an inconsistency with the MRS before approving a local scheme to result in invalidity, as s 3 MRS deals entirely and effectively with the consequences of any failure by the Minister to observe s 34. Invalidity, in particular, of a whole local scheme, could produce consequences of such significance that it is not lightly to be assumed that invalidity was the consequence intended by the parliament.

23 In this case, however, I do not need to finally resolve this issue as, for reasons which will appear, I am not persuaded there was or is any inconsistency between TPS5 and the MRS within the meaning of s 34 MRS Act. Nevertheless, for present purposes, I will proceed on the assumption (which is contrary to my present view of the matter) that TPS5 would be invalid, had there been a failure by the Minister to observe s 34, at least to the extent of the inconsistency.

24 By cl 23(1) of the MRS, land in the metropolitan region is classified into zones identified by colours on the MRS map. Table 2 in cl 23(2) sets out those zones. By this means the metropolitan region is classified into eight zones namely, Urban, Urban Deferred, Central City Area, Industrial, Special Industrial, Rural, Private Recreational and Rural-Water Protection. The land of the appellants is zoned as "Urban" for this purpose. By cl 24(1) approval is required for the development of land within areas zoned, however, by cl 24(2), approval is not required if the development consists inter alia of the erection on a lot of a single dwelling house which will be the only building on that lot. This part of cl 24(2) can have no application to the present case. Hence, approval under the MRS was required for the development proposed by the appellants in this case. It is further provided by cl 24(2) that:

"Approval under this Part does not exempt the person to whom the approval is granted from the requirement, if any, to obtain permission or approval for development on the land under any other law."

25 TPS5 is another law for the purposes of this provision by virtue of s 7(3) of the Planning Act. It is common ground, and it is the clear effect of TPS5, cf cl 2, that its provisions, if valid, apply to the appellants' land. That was so at all material times. By cl 7(3) "the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes" unless otherwise provided in TPS5. There is no such other provision relevant for present purposes. As provided by cl 7(1) of TPS5, the Residential Planning Codes are those prepared under s 5AA of the Planning Act and published in the Government Gazette of 13 December 1991, as amended from time to time. By cl 7(4) of TPS5 the density of development applicable to land within the residential zones of TPS5 is determined by reference to the density numbers superimposed on the TPS5 Scheme map. The density applicable to the appellants' land is "R15". The Residential Planning Codes make no provision for duplex dwellings. By Code 1.3.1 the appellants' planned development is a "grouped dwelling", ie "... one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above the other ...". By Table 1 of the Residential Planning Codes an R15 density requires a minimum lot area per dwelling of 550m2, ie a minimum lot size of 1100m2 is required for the appellants' proposed group dwelling development comprising two dwellings on the same lot. As the appellants' land has only a lot size of 1034m2 it falls short of this minimum requirement by 66m2.

26 By cl 82(1A) of TPS5 an application in the form prescribed in Schedule E to TPS5 is required and the consent of the Council is necessary before a person commences development of any land in the Scheme area. It is thus clearly the effect of TPS5, if it is valid, that an application and approval under TPS5 is required before the present appellants could commence the proposed development which they contemplate on their land. There are exceptions to this requirement but none of them are applicable. As has been indicated, by cl 96 of TPS5, an applicant who is aggrieved by a decision of the Council "in respect of the exercise of a discretionary power under this Scheme" has a right of appeal under Part V of the Planning Act. That includes a right of appeal to the Minister. This right of appeal is only in respect of the exercise of a discretionary power.

27 By cl 26 of the MRS, relevantly, it is provided that where a local authority has prepared a town planning scheme in accordance with s 35 of the MRS Act "that has been approved and published in the Government Gazette" (which is the case in respect of TPS5):

"... an approval given by the local authority to develop land comprised in the Scheme which has been zoned under this Part shall be deemed to be an approval under this Scheme."

Clause 26 is in the same Part of the MRS as cl 23. Thus, it is the effect of cl 26 that an approval given by the City to develop the appellants' land under TPS5 "shall be deemed to be an approval" under the MRS. It is clear from this provision that the MRS expressly contemplates that an approval may be required for a development under a local scheme as well as approval being required for that same development under the MRS. In the circumstances applicable to the present case, however, approval under the MRS is deemed if approval is given by the City under TPS5. (It should be noted that "local authority" was the correct description for a local government body such as the City of South Perth when the MRS was prepared, but the present statutory description is "local government").

28 Quite apart from cl 26 of the MRS, s 20 of the Planning Act makes provision for the delegation of powers of approval from the State Planning Commission to local governments. By this means many approvals for development under the MRS are in fact given by local governments in the exercise of delegated authority from the State Planning Commission which is otherwise the approving authority for the purposes of the MRS. To this end, it is provided by cl 28 of the MRS that an application for approval to commence and carry out development shall be made in Form 1 as prescribed in the MRS "and shall be submitted in duplicate to the local authority in whose district the land the subject of the application is situate ...". Where that occurs, by cl 29(2), in the case of any application for the development of land zoned under Part III of the MRS (the appellants' land is such land), "the local authority shall determine the application in accordance with the power delegated by the Commission ...". There is an exception to this which is not relevant. Hence, it was for the City to approve this development for the purposes of the MRS although, by virtue of cl 26, the approval of the City under TPS5 would of course be a deemed approval under the MRS.

29 It is the effect of cl 31 of the MRS that where a decision of the local government in respect of an application is not conveyed to the applicant within 60 days the application shall be deemed to have been refused. From such a refusal there is a right of appeal provided by cl 33 to the Minister "except where the refusal or conditional approval is in accordance with the provisions of an operative town planning scheme ...".

30 Clause 33 of MRS provides further clear confirmation that it is in accordance with the deliberate legislative structure provided by the Planning Act and the MRS Act, for both the MRS and a local scheme such as TPS5 to regulate development on the land of the appellants at the relevant times.

31 It is apparent from the MRS Act and the Planning Act that it is not the legislative scheme that the MRS and a town planning scheme of a local government perform precisely the same role. The MRS is clearly intended to provide a broad general blueprint to guide and coordinate the overall planning and development of the metropolitan region. Within that broad and general blueprint, it is left to the very many town planning schemes of the local governments within the metropolitan region to regulate that planning and development in a more particular and detailed manner, and with appropriately greater attention to the precise local planning needs of particular localities and communities. As Kennedy J observed in City of Bayswater v Minister for Family and Children's Services & Ors [2000] WASCA 151, 108 LGERA 182 at 185 [5]:

"The Metropolitan Region Town Planning Scheme Act 1959 (WA) provides for the planning and development of land within the metropolitan region. It is concerned with the broader aspects of town planning, and, by s 34, town planning schemes made by local authorities within the metropolitan region are required to be consistent with the provisions of the Metropolitan Region Scheme."

32 In that case, the Court was concerned with a direct conflict between the MRS Act and the Planning Act, in that the MRS Act provided by s 45 that the MRS was binding on the Crown whereas the effect of s 32 of the Planning Act was to entitle the Crown to undertake a public work without approval. As was observed by Steytler J at 193 [47], the effect of s 3 of the MRS Act is that "the provisions of the Planning Act and those of the Scheme Act have to be read together as if they were one enactment." In the view of Kennedy J at 186 [8] and Steytler J at 193 [48] when the two Acts were read together as one there was necessarily a direct inconsistency, within the meaning of s 3 of the MRS Act, between the provisions of the MRS Act that the Crown should be bound and those of the Planning Act that the Crown should not. That inconsistency was resolved by the provisions of the MRS Act and its Scheme prevailing as provided by s 3 of the MRS Act.

Inconsistency between the MRS and the City's Planning Scheme?

33 In the present case it is the submission of the appellants that there is inconsistency between the MRS and TPS5, within the meaning of s 34 of the MRS Act, in that the appellants' land is zoned Urban under the MRS but Residential R under TPS5. Were the MRS considered alone, it would be open to approve the development of two separate dwellings on the appellants' land. The only requirement is that the development be Urban. Therefore the erection of more that one residence, seemingly without limitation as to number save for the practical limitation provided by the area of the land in question, is consistent with the "Urban" zoning. By contrast, and in the submission of the appellants with the consequence of "inconsistency" for the purposes of s 34 MRS Act, TPS5 expressly restricts the nature and number of dwellings that may be constructed on the appellants' land, especially by its requirement that the Residential Planning Codes be conformed with and the prescription of an R15 density on the appellants land for that purpose.

34 I am unable to accept the contention for the appellants that this reveals an inconsistency between the MRS and TPS5 within the meaning of s 34 of the MRS Act. TPS5 allows the use of appellants' land for Residential R purposes. That appears to me to be entirely consistent with an Urban zoning under the more broad blueprint of the MRS. The fact that TPS5 does not allow every possible type of development that might be authorised by the very general Urban zoning under the MRS, and restricts by type and number the construction of dwellings on the appellants' land, appears to be entirely within the contemplation of the combined statutory scheme which emerges from the MRS Act and the Planning Act. It is the role of TPS5 as a town planning scheme of a local government within the metropolitan region to make more precise provision for the development and planning of land within the City's responsibility. It must do so consistently with the MRS. It is in my view entirely consistent with the requirement of the MRS that substantial portions of the district within the City's responsibility be zoned Urban, that the City's scheme should deal more precisely and in accordance with local needs and circumstances, to provide with greater precision the types of Urban development that might be permitted on the various parts of those areas within the City's responsibility which are required by the MRS to be Urban. Rather than evidencing inconsistency, there is a harmonious working out of the combined statutory scheme of the two statutes and the two planning schemes.

35 There is a further difficulty in the way of acceptance of the appellants' submissions. Ground of appeal 3, which had asserted that it had not been established that TPS5 had been made, approved and gazetted as required by the Planning Act, has been abandoned. Hence, leaving aside the question of inconsistency, there is no longer any dispute that TPS5 has been shown to be duly made according to the required statutory procedures and has been approved by the Minister and published in the Government Gazette. Clause 21 of the MRS provides:

"21. 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."

Clause 21 is in Part III of the MRS which deals with zoning. It is cl 23 in Part III which provides for the Urban zoning of the appellants' land.

36 It is clear from cl 21 that the MRS specifically contemplated that there might be variance between its general and broader provision and the subsequent and more particular provision of a local scheme. In that situation, provided the local scheme has been duly made and approved by the Minister and published in the Government Gazette, it is the effect of cl 21 that the earlier and more general provision of the MRS should no longer prevail. In effect, where there is a variance, the provision of Part III of the MRS is modified to the extent necessary to remove the variance. The provision of the subsequent local scheme prevails. That being so, there would not be any inconsistency or want of accord between the local scheme and the MRS because, by the terms of cl 21 of the MRS itself, the MRS provision effectively retreats so as to remove the variance.

37 The appellants advanced two submissions against this. First, it is submitted that TPS5 cannot be said to have been "duly made" if its terms were inconsistent with the MRS when it was made, because that would not be a compliance with s 34 of the MRS Act. There are two difficulties with this. In the context of cl 21, the notion of "duly made" appears to be a reference to compliance with the requirements for the making of a town planning scheme under the provisions of the Planning Act. Given that the subject matter of cl 21 is the removal of a variance between a local scheme and the MRS, it would be a self-defeating nonsense for cl 21 to intend, by "duly made", that the local scheme be "in accordance with and consistent with" the MRS as required by s 34 of the MRS Act without first taking into account the effect to cl 21. Secondly, it is submitted that there are really two grades of conflict or difference between the MRS and a local scheme, on the one hand an inconsistency and on the other a variance. The submission of the appellants appears to be that a "variance" is necessarily a lesser degree of difference than an "inconsistency" and, because of the difference in effect between an Urban and a Residential R zoning, that can only be an inconsistency, and not a mere variance. The words used do not offer support for this submission as a variance is treated by the Shorter Oxford Dictionary as including a "difference", a "divergence", "inconsistent (with)" and "incompatible (with)". I am not able to accept the view that for a provision of a town planning scheme to be at variance with a provision of Part III of the MRS, necessarily and always there must be a difference which is less in degree than an inconsistency between the two provisions. It appears to me that the legislative scheme revealed by cl 21 of MRS was that it anticipated that subsequent local schemes, duly made and approved by the Minister and Gazetted, might be at variance with a provision of Part III of the MRS. In that event the MRS itself provided that the provision of the subsequent local scheme should prevail. That would remove any scope for inconsistency in respect of Part III of the MRS, ie zoning, before it arose.

38 In this context I should add that I found no direct assistance with the notions of "consistent with" in s 34, or "inconsistent" in s 3 of the MRS Act, and the numerous decisions dealing with an inconsistency between Federal and State laws in the context of s 109 of the Federal Constitution. For the purposes of the MRS Act and the Planning Act we are concerned with laws of the one legislature which are intended by that legislature to be read and operate as one. The issue is to discern how that legislature intended the two laws to operate together. Notions of consistency and variance must be understood in that context.

39 To summarise the position. There is no inconsistency for the purposes of s 34 of the MRS Act, or for the purposes of s 3 of that Act, between an Urban zoning of the appellants' land under the MRS and the more particular Residential R zoning under TPS5. Residential R is quite consistent with the Urban zoning under the MRS. While I am not persuaded it is the case, if it could correctly be said that the Residential R zoning is inconsistent with the Urban zoning then cl 21 of the MRS is effective to ensure that the Residential R zoning under TPS5 prevails. Clause 21 is stipulating the extent of the operation of Part III of the MRS in face of a subsequent local scheme. Its effect is to remove any variance (whether or not an inconsistency) between the provisions of the two schemes by, in effect, providing for the MRS provision to retreat so that the local scheme provision prevails.

40 As a quite separate submission the appellants contend that there is a necessary inconsistency within the meaning of s 34 of the MRS Act by virtue of the approval and appeal provisions of the MRS and TPS5. These provisions have been sufficiently set out earlier in these reasons. It appears to be the submission that MRS provides a complete procedure in respect of development approvals, and for appeals should approval be refused. The appellants submit that approval for their proposed development is required under the MRS and, by cl 30(1) in a case where the City exercises the powers of the Planning Commission delegated to it under the MRS, the City is required to reach a decision:

"... having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality ..."

It is the appellants' submission that it duly applied to the City in accordance with the procedure provided by the MRS, using MRS Form 1, and that the City's decision in respect of that application should have been made in accordance with cl 30(1). That having not been done, and not done within the time required, there was a deemed refusal of the MRS application. Hence the appellants contend they have a right of appeal to the Minister under MRS cl 33(1). While cl 33(1) would preclude an appeal "where the refusal ... is in accordance with the provisions of an operative Town Planning Scheme", that is not the present case in the appellants' submission because TPS5 is not an operative town planning scheme because the relevant provisions of TPS5 are not valid. Hence, it is submitted the appellants are entitled to have their appeal heard and determined by the Minister under the provisions of the MRS.

41 The appellants then refer to TPS5. They point to the requirement of cl 82(1A) which purports to preclude development of any land without the planning consent of the Council of the City under TPS5, by cl 82(5) which provides that where the Council has delegated authority under the MRS to determine an application for development on land zoned under Part III of the MRS, the application for that approval shall be made in the form prescribed in Schedule E of TPS5, and in particular cl 84(4) which deals with the decision of the Council in respect of an application for planning approval. It requires the Council of the City to have regard to any matter which is required by TPS5 to be considered, the purpose for which the land is zoned under TPS5, and under the MRS, and the purpose for which land in the locality is used, as well as the orderly and proper planning of the locality and the preservation of the amenities of the locality.

42 The appellants contend that these provisions, and in particular cl 84(4), purport to apply to an application for development approval under the MRS. To the extent that they vary the provisions of the MRS and in particular the considerations relevant to decision as set out in cl 84(4), it is submitted there is an inconsistency with the MRS, an inconsistency which necessarily gives rise to invalidity of TPS5 or at least those parts of it that are affected by the invalidity.

43 For reasons already sufficiently explained there is no inconsistency with a requirement that there be approval under TPS5 before development can occur on land within the scope of its operation, as well as the requirement under the MRS for development approval for the purposes of that scheme. To the extent that cl 82(5) of TPS5 varies the procedure, ie the prescribed form for an application for development approval in respect of land zoned under Part III of the MRS, that appears to be a variance within the meaning of cl 21 of MRS. Hence, the MRS provisions effectively cease to apply and the TPS5 provisions prevail.

44 The terms and context of cl 84(4) suggests it is dealing with an application for approval under TPS5 and is not to be read as intended to apply to an application under the MRS. Nevertheless, insofar as cl 30(1) of the MRS requires consideration among other things of the orderly and proper planning of the locality and the preservation of the amenities of the locality, it would seem to be open to the decision-maker, whether it be the City or the State Planning Commission, to have regard to the requirements of a local scheme which also applies to the land.

45 In that event it would be open to the decision-maker, in the exercise of discretion, to have regard to the fact that approval could not be granted under TPS5 in deciding whether or not approval should be granted under the MRS. This potential for interrelationship between the provisions of the schemes receives further recognition in cl 33(1) MRS, insofar as it provides that there should be no right of appeal to the Minister if the decision to refuse an application for development "is in accordance with the provisions of an operative town planning scheme". Clause 33(1) has, of course, force and effect "as though enacted" in the MRS Act itself, by virtue of s 32(2) of that Act.

46 The appellants also referred to cl 84(5) of TPS5 by which inter alia it is provided that nothing in TPS5 which requires or enables the Council of the City to take any particular step shall affect or restrict the generality of the provisions of cl 84(4) which have been set out earlier. In other words, the matters to be considered by the Council of the City in the exercise of its discretion whether or not to approve an application for planning consent are not affected or restricted by a requirement of TPS5 that the Council of the City take a particular step. There are other matters similarly dealt with by cl 84(5), but I will confine my comments to the taking of the particular step on which the appellants rely.

47 It is submitted that cl 87(1) enables the Council to take a "particular step" within the meaning of cl 84(5)(a), in that it authorises the Council to grant planning consent notwithstanding that the development does not comply with the requirements of TPS5. This is a submission which appears to me to strain the provisions and their intended effect too far. Clause 87(1) provides that a development, which does not comply with a requirement prescribed by TPS5, may nevertheless be the subject of a grant of planning consent, but the power to do so may only be exercised if the Council is satisfied of three matters. But cl 87(1) is expressly subject to cl 87(2), which says that the power conferred by cl 87(1) "shall not be exercised by the Council with respect to the requirements prescribed ... (c) under the Codes" (the Residential Planning Codes). It is the clear effect of cl 87(2) that the Council is not empowered by cl 87(1), or enabled, to take the step of consenting to an application for planning consent which does not comply with a requirement prescribed under the Residential Planning Codes.

48 When cl 87 is read for its total effect, it cannot be said that cl 87(1) enables the Council to take the particular step of approving the appellants' application, because it is an application for planning consent which does not comply with the requirements prescribed under the Residential Planning Codes. That being so, it is not the case that by cl 84(5) the Council may exercise its discretion under cl 84(4) to approve this present application by the appellants, notwithstanding non-compliance with the Residential Planning Codes. As was held by this Court in Marshall v Keirath (supra) cf [21] and [22] and [23] there is no discretion in the Council of the City to allow a departure from the requirements of the Residential Planning Codes under TPS5.

49 What I have said is sufficient to dispose of ground of appeal 2 which sought to question whether TPS5 legitimately prevails over the MRS so as to validly control development of the appellants' land, and ground of appeal 7 which asserted that there was inconsistency between the MRS and TPS5 and that the learned Master erred in law and fact in finding to the contrary.

50 By ground of appeal 4 the appellants relied on the effect, as they saw it, of the Town Planning (Buildings) Uniform General By-laws 1989 to support the proposition that the proposed development could be constructed on the appellants' land today, subject only to approval under the MRS. However, by By-law 4 of the 1989 By-laws and s 31(2) of the Planning Act, the provisions of TPS5 prevail over the 1989 By-laws to the extent of any inconsistency. For the reasons already canvassed, TPS5 is valid and effective to preclude the proposed development because of non-compliance with the Residential Planning Codes as required by TPS5.

51 The appellants also appear to assert that under the history of regulation under the uniform building by-laws which preceded the 1989 By-laws they now had a "right" to develop the land in the way they propose.

52 The history of regulation dealing with the density of residential development on the appellants' land was considered by the learned Master in his reasons. Both parties have placed summaries of that history before us. Leaving out matters of immaterial detail, the Master's summary of the position is correct save in respect of one issue which does not affect the outcome of these proceedings. The essential features of the history are as follows:

(a) By the Uniform Building By-laws 1961 the erection of a second dwelling, such as that now proposed by the appellants, was prohibited by By-laws 22(a) and 34(a) unless the site had an area of not less than 8,000 square feet, ie 743 m2, and a frontage of 66 feet. Hence, had the appellants then sought a building license to construct what they now propose, the 1961 By-laws would not have prohibited the proposed development on the appellants' land which is of 1034 m2 with the necessary frontage.

(b) The 1961 By-laws were repealed, but replaced in essentially the same terms for present purposes, by the Uniform Building By-laws 1965. These made no material change for present purposes.

(c) The Uniform Building By-laws 1974 came into effect on 19 December 1974. These repealed the 1965 By-laws. By-law 6.1(i) provided for a number of classifications of buildings. These included a Class 1 building which was "a single dwelling-house", and a Class 1A which was "a duplex, being two attached domiciles, each being complete and self-contained, and, when erected in a single occupancy residential area, being so designed as to give an external appearance of a single dwelling-house".

Counsel for the appellants submitted that it was unnecessary for the purposes of this appeal to finally determine whether the development now proposed by the appellants would have been permitted under the 1974 By-laws. That is true enough because, for reasons given elsewhere, the 1974 By-laws have no possible application to the present case. Nevertheless, so as to put an end to one other part of this controversy, the very obvious conclusion should be stated that what the appellants now propose would not constitute a Class 1A building for the purpose of the 1974 By-laws; while the two proposed residences are each complete and self-contained, they are not designed as to give an external appearance of a single dwelling-house by any stretch of imagination. The two dwellings are in contrasting architectural styles and external materials, and would stand quite apart from each other on the site. It is also difficult to see that they are "attached domiciles" despite the device of the small raised brick wall, which links each dwelling to the double garage that otherwise separates them. Even if there be some possible uncertainty about the second issue, there can be none about the first. What is now proposed by the appellants would not have been a Class 1A building for the purposes of the 1974 By-laws.

By the 1974 By-laws a Class 1A "duplex", as defined in By-law 6.1(i), could be erected on the appellants' land but not a Class 1 building. By-law 11.4(i)(a) of the 1974 By-laws required a site area of 557 m2 for each Class 1 building, ie a total lot size of 1,114 m2 for the erection of two Class 1 buildings, which is what is now proposed by the appellants. Hence, it was the position that the development now proposed by the appellants could not have been approved on the appellants' land from the commencement of the 1974 By-laws. I note that the Master in his decision took the view that the construction of a Class 1A "duplex" building was also prohibited by the 1974 By-laws, but this appears not to be correct. That is not material to the decision in this case, however, as what is now proposed was not a Class 1A building for the purposes of the 1974 By-laws and, further, the 1974 By-laws have no present operation relevant to this case.

(d) The 1974 By-laws were repealed by the Building Regulations 1989 made pursuant to the Local Government Act 1960 (WA), s 433A. The 1989 Building Regulations did not make provision for lot sizes.

(e) However, lot sizes were prescribed the Town Planning (Buildings) Uniform General By-Laws 1989 which were made pursuant to the Planning Act, s 31(1). By the 1989 By-laws the site requirement for a Class 1 single dwelling building was prescribed 550 m2, ie 1100 m2 for two Class 1 dwellings. The classification of buildings for this purpose was made pursuant to the 1989 Building Regulations which did not continue the separate classification of a "duplex" dwelling and described Class 1 as "one or more attached dwellings". Hence, what the appellants now propose is not permitted under the regime established in 1989, in place of the 1974 By-laws which were repealed at that time. Further, by s 31(2) of the Planning Act, the provisions of any local scheme approved before or after the making of by-laws under the Planning Act, and having effect in the district, or in part of the district, shall prevail over the 1989 By-laws "to the extent of ... inconsistency". TPS5 is such a local scheme. Its provisions would therefore have prevailed over the 1989 By-laws to the extent of any inconsistency in any event.

53 To the extent that the appellants submit that the 1989 By-laws permit, or at least do not prevent, the development they propose, the conclusion reached earlier in these reasons that TPS5 is valid and applies to the appellants' land is a complete answer to the proposition by virtue of s 31(2) of the Planning Act.

54 To the extent that the appellants appear to seek to rely on by-laws that had operation before the 1989 By-laws, but which are now repealed, it appears that the appellants misunderstand the effects of s 36 and s 37 of the Interpretation Act 1984 (WA). Section 36 and s 37 do not support the contention that the appellants have a continuing "right" to build the additional dwelling which they propose, whether or not it would have been a "duplex" within the meaning of any earlier by-laws, simply because some earlier by-laws may not have prevented what is now proposed. All relevant earlier by-laws required an application to the City (with plans and specifications) for a building permit, which had to issue before development could have been commenced on the land. The appellants did not seek or receive a building permit for the development they now propose while any pre-1989 By-laws were in force. If it is assumed that they could have obtained approval under pre-1989 by-laws (which I do not decide) it cannot be said that the appellants had any "right" which was "created, acquired, accrued, established or exercisable" within the meaning of s 37(1)(c) of the Interpretation Act. The relevant operation of s 36 of the Interpretation Act depends on the repeal and re-enactment of a written law and its effect is to preserve and continue in force or operation the matters set out in s 36(a) to (e) in that situation. Even if it be assumed that there is a repeal and re-enactment within the meaning of s 36, none of the matters in s 36(a) to (e) have any relevance or application to the present case. As to the operation of s 37(1)(c) see the discussion in Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131 at [50]- [59] and the cases there considered, cf [57] and [59].

55 I find nothing in the 1989 By-laws which in any way affects or inhibits the provisions of TPS5 insofar as they prohibit the development now proposed by the appellants. There is a question, however, whether the 1989 By-laws, and in particular By-law 5, would also prohibit the proposed development. That need not be considered further in these circumstances.

56 Grounds of appeal 5 and 6 each concern the construction of previous by-laws, in particular the 1974 By-laws. For reasons which I have already sufficiently canvassed, these have no present effect to override the operation of TPS5 or to authorise the construction of a development which does not comply with TPS5. That is enough to dispose of these two grounds.

57 The one remaining ground of appeal 8 concerns s 47A of the Limitation Act 1935 (WA). The relevant effect of s 47A is to require notice as soon as practicable after a cause of action accrues, and the commencement of the action before the expiration of one year from the date on which the cause of action accrues. The appellants delayed a little beyond one year from the Minister's refusal. By s 47A(3)(a) and (b) the Court may grant leave to bring the action at any time before the expiration of six years from the date on which the cause of action accrues inter alia where the failure to give the required notice or the delay in bringing the action has not materially prejudiced the defendant. Apparently because of the appellants' challenge to the validity of TPS5 the respondent submitted that the relevant six years ran from 1986 when TPS5 came into force, and hence that leave could not be given under s 47A(3).

58 In the reasons of the learned Master he indicated that, in view of the conclusions he had reached on the merits, the proceedings before him must be dismissed. For that reason, he said that he "need not deal with this aspect of the case in any detail". However, he went on to "note in passing" that TPS5 had been in effect since 1986 and the plaintiffs had been attempting to develop their land since 1994. He then said "In the circumstances, it seems to me that s 47A would operate to prevent this claim succeeding."

59 Like the learned Master, it is my view that there is no need to deal in any detail with this issue. It appears to me, however, that the cause of action in this case is not the invalidity of TPS5 by virtue of s 34 of the MRS Act. That is relevantly a ground upon which the appellants seek to rely in support of their contention that the Minister, in 2000, wrongly refused or declined to exercise the jurisdiction conferred on the Minister under the MRS. That refusal was communicated by the Minister's letter of 14 April 2000. That is the date on which the relevant cause of action arose. While the present proceedings were not instituted within 12 months of that date, these proceedings were instituted well within six years of the Minister's refusal. In my view, therefore, it would be open to the Court to grant leave to bring these proceedings outside the 12 month period. The delay appears substantially to be attributable to the earlier proceedings in this Court which were the subject of the decision on 13 March 2001. There is no reason in the circumstances to apprehend that there has been any material prejudice occasioned by the delay.

60 However, having considered the merits of the proposed action exhaustively, I am persuaded that it must fail. In the circumstances, while the Master might properly have granted leave, there is no basis upon which it has been shown that his order dismissing the originating summons ought to be disturbed.

61 For these reasons the appeal should be dismissed.

Region Town Planning Scheme Act 1959

Planning and Development Act 1928

By the Uniform Building By-laws 1961

Uniform Building By-laws 1974

Town Planning (Buildings) Uniform General By-Laws 1989

Planning (Buildings) Uniform General By-laws 1989

Uniform Building By-laws 1965

Marshall & Anor v The Honourable Alannah Mactiernan Mla Minister for Planning and Infrastructure [2002] WASCA 274

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (100 paragraphs)

Marshall & Anor v The Honourable Alannah Mactiernan Mla Minister for Planning and Infrastructure [2002] WASCA 274 (4 October 2002)

Inconsistency between the MRS and the City's Planning Scheme?

Parties

Legislation Cited (8)

Cases Cited (8)