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[2007] WASAT 247
State Administrative Tribunal (WA)
2007-09-25
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : MILLER and CITY OF STIRLING [2007] WASAT 247
Town planning - Development application - Aged persons' housing - Preliminary issue - Whether development application is capable of approval - Special scheme provision specifying greater maximum density for aged persons' dwellings than otherwise applicable residential density coding - Special provision deleted from scheme after lodgement, but prior to determination, of development application - Proceedings commenced following refusal - Whether special provision continues to apply in determination of proceedings - Whether applicant has an accrued right or power to have the application determined on the basis of the special provision
City of Stirling District Planning Scheme No 2, cl 1.1.6.2, cl 1.3.5.1(f), cl 1.3.5.1(k), cl 1.4.3.1, cl 1.4.3.2, cl 2.2.8, cl 2.2.8.5
Interpretation Act 1984 (WA), s 5, s 37(1)
Residential Design Codes of Western Australia (2002), cl 3.1.1, cl 4.1.2, Table 1
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Clause 2.2.8 of the City of Stirling District Planning Scheme No 2 does not continue to apply in the determination of the proceedings
The proposed development is not capable of approval as the minimum and average site areas for the dwellings are less than the average and minimum site areas prescribed by the Residential Design Codes of Western Australia (2002)
Proceedings are adjourned to a directions hearing to enable the applicants to consider whether to amend the proposed developments as to be capable of approval having regard to the housing density requirements of the Residential Design Codes of Western Australia (2002)
1 A preliminary issue was identified in each of two proceedings that involve similar circumstances as to whether a proposed aged persons' housing development is capable of approval having regard to housing density requirements. To answer this preliminary issue the Tribunal needed to determine an underlying preliminary issue as to whether a special scheme provision that specified a greater maximum density for aged persons' dwellings than was otherwise applicable, and which was deleted from the scheme after lodgement of the development applications but before their determination, continues to apply in the determination of the proceedings.
2 The Tribunal determined that the applicants did not have an accrued right to have the applications determined on review on the basis of the deleted special provision. Although the applicants had a right to seek review of the deemed refusal of their applications at the time when the provision was deleted, they did not exercise that right. While it was unnecessary to express a concluded view, the Tribunal also observed that it may well be the case that even if the applicants had exercised the right to seek review of the deemed refusal, the review would be determined on the basis of the law as it stands at the time of the determination, that is excluding the deleted provision.
3 The Tribunal also determined that the applicants did not have an exercisable right or power to have the applications determined, and the responsible authority did not have an exercisable power to determine the applications, on the basis of the deleted special provision. Rather, the applicants had a right to have the applications determined, and the responsible authority had the power to determine the applications, on the basis of the law as it exists from time to time. The law no longer includes the special provision.
4 The Tribunal, therefore, determined that the special provision does not continue to apply in the determination of the proceedings and the development applications are not capable of approval having regard to the housing density provisions.
5 The proceedings were adjourned to enable the applicants to consider whether to seek leave to amend the applications so as to be capable of approval having regard to the housing density provisions.
6 The same preliminary issue has been identified for determination in two proceedings before the Tribunal. Both proceedings involve an application for review made under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the City of Stirling (City or Council) to refuse approval for a development application for aged persons' dwellings. The Tribunal directed that the preliminary issue in each proceeding is to be determined together and entirely on the documents under s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
7 After all documents and submissions had been filed in DR 181 of 2007, and after all documents and submissions other than submissions in reply had been filed in DR 237 of 2007, the City's solicitors advised the Tribunal that a similar preliminary issue has arisen in proceedings between McDonalds Australia Ltd and the City of Fremantle (DR 339 of 2006) and has been referred to President Justice Barker for determination. The City's solicitors conveyed their instructions that the City is agreeable to the Tribunal delaying its decision in the present proceedings until the President has determined the issue in the McDonalds proceedings.
8 Mr Noel Miller, who is the self-represented applicant in DR 181 of 2007, and Ourwise Investments Pty Ltd (Ourwise), the applicant in DR 237 of 2007 which is represented by counsel, each indicated disagreement to delaying this decision until the President has made his decision. In particular, Mr Miller opposes any delay in deciding the preliminary issue in his case, because "there have already been many costly delays and another adjournment would cause me further financial hardship". Mr Miller says that delays that have already occurred in relation to his development application "have put my self - funded retirement plans on hold".
9 As it turned out, the McDonalds proceedings were withdrawn on the day prior to the publication of these reasons. However, I had determined earlier that I should not delay this decision for two reasons. The first reason is the financial consequences of delay for Mr Miller. Mr Miller commenced his proceedings approximately four months ago. The preliminary issue was identified and listed for determination on the documents approximately three months ago. The last document was received approximately two months ago and, were it not for the commencement of DR 237 of 2007 and the identification of the common preliminary issue just over two months ago, it is likely that the preliminary issue in Mr Miller's proceedings would have been decided by now. The second reason is that it is in the public interest that the preliminary issue should be determined promptly, because it is or may be of significance in other proceedings before the Tribunal and in the determination of development applications by responsible primary authorities.
10 On 7 December 2006, Mr Miller applied to the City for development approval under the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme) for the development of eight aged persons' dwellings at Nos 252-254 Erindale Road, Hamersley (Miller property). The area of the Miller property proposed to be allocated for each of the dwellings ranges from 152.52 square metres to 178.50 square metres. The average area for the proposed dwellings is 170.52 square metres.
11 On 12 December 2006, Ourwise applied to the City for development approval under DPS 2 for the development of 13 aged persons' dwellings at No 47 Drabant Way, Hamersley and Nos 51-55 Glendale Avenue, Hamersley (Ourwise property). The area of the Ourwise property proposed to be allocated for each of the dwellings ranges from 161 square metres to 264 square metres. The average area for the proposed dwellings is 194.5 square metres.
12 The Miller property and the Ourwise property are each zoned "Low Density Residential" and subject to a residential density coding of R20 under DPS 2. Clause 1.1.6.2 of DPS 2 requires that "the use or development of land for any of the residential purposes dealt with by the [Residential Design Codes of Western Australian (2002) (Codes)] shall conform to the provisions of the [Codes]". The Acceptable Development housing density provision in cl 3.1.1 of the Codes requires compliance with the minimum and average site area per dwelling stated in Table 1 in relation to each code (see par A1.1), but permits the minimum and average site area to be reduced by up to one-third in accordance with cl 4.1.2 for the purposes of an aged or dependent persons' dwelling (see par A3). The corresponding Performance Criteria permits a reduction of the minimum and average site area per dwelling stated in Table 1 by up to 5% if one of five criteria is met.
13 The minimum and average site areas proposed in both the Miller and Ourwise applications are less than the minimum and average site areas specified in Table 1 for the R20 code reduced by one-third. Therefore, even if the discretion conferred on the City in the case of an aged or dependent persons' dwelling were exercised in relation to these development applications, the developments would not conform to the provisions of the Codes in relation to housing density.
14 However, at the time when the development applications were made to the City, DPS 2 contained the following provision in cl 2.2.8:
"Development of a lot for aged or dependent persons' dwellings shall be in all respect in accordance with the standards and requirements of the Residential Planning Code R40 or such other R-Code designation of higher density within which the lot may be located."
15 None of the proposed eight dwellings in the Miller application and only four of the 13 dwellings proposed in the Ourwise application satisfy the minimum site area specified in Table 1 of the Codes for the R40 code. The average site area per dwelling proposed in each development application is less than the average site area specified in Table 1 of the Codes for the R40 code. However, if the discretion under the Acceptable Development housing density provision in cl 3.1.1 of the Codes to reduce the minimum and average site areas per dwelling by up to one-third were exercised in favour of the proposed developments, the minimum and average site areas would conform to the housing density requirements of the Codes.
16 As the Council did not convey a decision in relation to the development applications within 60 days of their receipt, the applications were deemed to have been refused under cl 1.3.5.1(k) of the Scheme 61 days after they were lodged. Mr Miller's development application was deemed to have been refused by the Council on 6 February 2007. The Ourwise development application was deemed to have been refused by the Council on 12 February 2007.
17 Clause 2.2.8 of DPS 2 was deleted from the Scheme upon the publication in the Government Gazette of Western Australia of Scheme Amendment No 514 on 2 March 2007.
18 The Council refused Mr Miller's development application on 23 April 2007 and Ourwise's development application on 15 June 2007. Each development application was refused for the following reason:
"The proposed development does not comply with the density requirements of the Residential Design Codes, specifically Clause 3.1.3 of Element 1 - housing density."
19 Mr Miller commenced the proceedings for review of the Council's decision to refuse his development application on 18 May 2007. Ourwise commenced the proceedings for review of the Council's decision to refuse its development application on 13 July 2007.
20 The City has identified the following preliminary issue for determination in each of the proceedings:
Whether the proposed development is capable of approval if the minimum and average site areas for the dwellings are less than the minimum and average site areas prescribed by the Codes.
21 In order to answer this preliminary issue, it is necessary to at first answer the following underlying preliminary issue in each case, namely:
Whether cl 2.2.8 of DPS 2 continues to apply in the determination of these proceedings.
22 I will at first address this underlying preliminary issue and then the preliminary issue identified by the City.
23 Mr Miller and Ourwise each contend that cl 2.2.8 of DPS 2 continues to apply in relation to the determination of their proceedings - notwithstanding its deletion from the Scheme several months before the commencement of the proceedings - and that consequently their development application is capable of approval having regard to the housing density requirements.
24 Ourwise relies on the general savings provision in s 37(1) of the Interpretation Act 1984 (WA) (Interpretation Act), with particular reference to par (c) of that subsection. Section 37(1) of the Interpretation Act states, in part, as follows:
Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."
25 The term "enactment" is defined in s 5 of the Interpretation Act as "a written law or any portion of a written law".
26 Ourwise submits, in terms of s 37(1)(c) of the Interpretation Act, that at the time of the deletion of cl 2.2.8 from DPS 2 on 2 March 2007 -
27 Ourwise relies on the President's decision in Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 (CPP). In that decision, the President confirmed an earlier ruling of the Tribunal that a review application lodged under the Town Planning and Development Act 1928 (WA) (TPD Act), before the TPD Act was repealed, should be determined on the basis that s 20(5) of the TPD Act continued to apply to the review proceedings notwithstanding the repeal of the TPD Act. Section 20(5) of the TPD Act stated that the discretion to approve a subdivision application was not relevantly "fettered" by a provision of a town planning scheme. Section 20(5) of the TPD Act was not re-enacted by the PD Act. Rather, s 138(2) of the PD Act states that, subject to any one of six exceptions set out in s 138(3), the consent authority "is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme".
28 The President determined that an applicant for subdivision approval that had commenced an application for review in the Tribunal of the decision of the Western Australian Planning Commission (Commission) to refuse subdivision approval prior to the repeal of the TPD Act had an accrued "right", within the meaning of s 37(1)(c) of the Interpretation Act, to have the Commission's decision to refuse subdivision approval reviewed. The President concluded, at [78], that the Tribunal was correct in ruling that the review proceedings should be determined by reference to s 20(5) of the TPD Act. The President came to this conclusion for the following reasons at [77]:
"Thus, while I consider there is a strong case to be made in support of the view that no right, interest, title, power or privilege is thereby created, acquired, established or exercisable prior to the operation of the repealing law in circumstances where an owner of land -
the decision in [Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430 (Esber)] stands as high authority in support of the contrary view and I can see no persuasive ground to distinguish Esber from the case before me. It is not for me, as a single judge, to purport effectively to set aside the decision in Esber. As a result, I should follow Esber."
29 At [49]-[51], the President summarised the facts and decision in Esber v Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430 (Esber) as follows:
"Esber was a case that, in part, dealt with s 8 of the Acts Interpretation Act 1991 (Cth), which is similar to s 37 of the Interpretation Act. In Esber, Mr Esber, a former member of the defence forces, received weekly payments in excess of $50 as compensation under the relevant Commonwealth compensation legislation as a result of an injury suffered while a member of the Forces. He applied to redeem his weekly payments pursuant to a provision of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) so that he might receive a lump sum in lieu of weekly payments. The application for redemption was rejected by the responsible officer under the 1971 Act. The applicant then applied out of time to the Commonwealth Administrative Appeals Tribunal (AAT) to review that decision, as he was entitled to do. Time to apply was extended. After the application for review was made, but before the hearing by the AAT, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (1988 Act). The 1988 Act provided that weekly payments over $50 were not redeemable. However, a provision of the 1988 Act provided that proceedings instituted under the 1971 Act but not completed upon the repeal of that Act may be continued on or after that day, and where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings.
Section 8 of the Acts Interpretation Act 1901 (Cth) relevantly provided that, unless the contrary intention appeared, an Act repealing a former Act would not '(c) affect any right ... acquired ... under any Act so repealed' or '(e) affect any investigation, legal proceeding or remedy in respect of any such right ...'.
On the face of it, the majority of the High Court (Brennan J dissenting) held that the 1971 Act applied to the application for review for two reasons:
30 At [52] the President set out a passage from the decision of Mason CJ, Deane, Toohey and Gaurdron JJ in Esber at 440. Part of this passage is as follows:
"Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment' [footnote omitted]. Nor was it a mere matter of procedure [footnote omitted]; it was a substantive right [footnote omitted]."
31 Ourwise concedes that there is a difference between CPP and Esber, on the one hand, and the circumstances of this case, on the other hand, because it filed its application for review in the Tribunal after cl 2.2.8 was deleted from DPS 2. However, Ourwise submits that at the time of the deletion of cl 2.2.8 it had an accrued "right" to have the subdivision application determined on review on the basis of the law at the time of the deemed refusal of the application, that is, on the basis of cl 2.2.8.
32 The applicant's accrued right argument is incorrect. Assuming that Ourwise (and Mr Miller) had an accrued right, when cl 2.2.8 was deleted from DPS 2, to have the application determined on review on the basis of the law at the time of the deemed refusal of the application, Ourwise (and Mr Miller) did not seek review of the deemed refusal of the development application, and the present proceedings are for review of the actual refusal of the development application, which took place approximately 14 weeks (and, in the case of Mr Miller, approximately seven weeks) after the deletion of the clause from the Scheme.
33 As noted earlier, Mr Miller's development application was deemed to have been refused under the Scheme on 6 February 2007 and Ourwise's development application was deemed to have been refused on 12 February 2007. Rule 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) required that an application for review of the deemed refusal of a development application had to be made within 28 days of the day on which the deemed refusal took place (see par (c)). Therefore, r 9 of the SAT Rules required Mr Miller to commence any application for review of the deemed refusal of his development application by 7 March 2007 and Ourwise to commence any application for review of the deemed refusal of its development application by 13 March 2007. Neither Mr Miller nor Ourwise commenced an application for review of the deemed refusal by the relevant respective date. Furthermore, although r 10 of the SAT Rules enables the Tribunal, on application by an applicant, to extend the time fixed under r 9 for the commencement of a proceeding, before or after the expiry of the period, neither Mr Miller nor Ourwise made an application to extend the time. Rather, they each filed an application for review of the actual refusal of the development after the deletion of cl 2.2.8 from DPS 2.
34 The foregoing reasons are sufficient to dispose of the accrued right argument in this case. While it is therefore unnecessary to express a concluded view in relation to the following analysis, it may well be the case that even if Ourwise (or Mr Miller) had commenced proceedings for review of the deemed refusal of the development application in accordance with r 9 and r 10 of the SAT Rules, they would not have had an accrued right to have the development application determined on review on the basis of the law at the time of the deemed refusal of the application.
35 It is well established in Australian planning law that a development or subdivision application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decision-maker or on review/appeal by a court or a tribunal such as SAT. The New South Wales Court of Appeal (Giles JA with whom Sheller and Santow JJA agreed) stated the law in The Dubler Group Pty Ltd v The Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178 (The Dubler Group), at [20], as follows:
"The power to amend an environmental planning instrument by a subsequent environmental planning instrument is undoubted, see s 74 of the [Environmental Planning and Assessment Act 1979 (NSW) (EP & A Act)]. A development application [which includes, in New South Wales, a subdivision application; see EP & A Act s 4(1)] is determined on the law as it stands at the time of the determination, including when it is determined on appeal to the [Land and Environment Court, which exercises equivalent jurisdiction to SAT in planning review/appeal proceedings]: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614; (1975) 31 LGRA 416; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630; (1980) 42 LGRA 111."
36 At [21] and [22], the New South Wales Court of Appeal referred to the Victorian decisions of Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819; (1973) 29 LGRA 44 and Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259 which demonstrate that the law stated by the New South Wales Court of Appeal also applies in Victoria. In the latter case, the Full Court of the Supreme Court of Victoria held at 265 as follows:
"In the present case the institution of the appeal by the appellant gave him no more than a hope or expectation that his appeal would succeed and that he would be granted a permit. But, as the Appeals Tribunal had a discretion as to whether or not it would grant a permit, the question was open and unresolved. No right or privilege had been acquired by the appellant nor had any right or privilege accrued to him. The investigation by the Appeals Tribunal was not in respect of some right of the appellant but was to decide whether some right should or should not be given. Hence, as the appellant had no right or privilege when the law was changed to make it illegal to grant a permit for a commercial vehicle park for 33 Peverill Street, the Appeals Tribunal was bound to refuse to give such a permit to the appellant."
37 Similarly, the Queensland Planning and Environment Court held, in a case in which a planning scheme was amended in an attempt to preclude the proposed development after the appeal to the Court was commenced, as follows:
"If the planning scheme is relevant to the determination of this appeal, it must be considered in its amended form. In the absence of express legislative provision to the contrary, an appeal of this kind must be decided having regard to the law in force at the time of its determination. It could not be suggested that the amendments to the planning scheme were such as to cause s 20(2)(c) of the Interpretation Act [which is expressed in similar terms to s 37(1)(c) of the WA Act] to apply. [Citations omitted]" (Beaudesert Shire Council v Smith [1998] QPELR 368 at 370)
38 Although the New South Wales and Victorian cases referred to in The Dubler Group were decided before Esber, The Dubler Group was decided after Esber. Indeed, the Court in The Dubler Group referred to and discussed Esber at [31]-[36]. The Court did not consider that Esber called into question the established principle of planning law set out earlier. The Queensland decision referred to above did not discuss Esber although it came after it.
39 The principle stated in the New South Wales, Victorian and Queensland decisions has also been assumed to be correct by the Full Court of the Supreme Court of Western Australia in Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission & Ors [2005] WASCA 56; (2005) 30 WAR 97. In that case Carcione Nominees Pty Ltd (Carcione) appealed to the Town Planning Appeals Tribunal against a decision of the City of South Perth to reject an application for town planning approval for development of a shopping centre. The City of South Perth developed a scheme amendment which would result in Carcione's land being zoned "Residential". Recommendations were made to the Minister for Planning and Infrastructure by the Department for Planning and Infrastructure and the Commission supporting the adoption of the scheme amendment. Carcione sought to challenge the recommendations on various grounds, including the grounds that the Commission acted for an improper purpose or took into account an irrelevant consideration. In support of these grounds, Carcione relied on the fact that the Commission's decision to recommend the approval of the amendment was "taken at the time and in the manner it was at the express request of the City ... for the express purpose of stultifying the applicant's appeal to the Tribunal" (see [88]). At [90] the Full Court rejected these grounds as follows:
"[I]t seems to us that a decision, to recommend that the Minister should approve a scheme amendment, even if hastily made in order to avoid the possibility that a pending decision of the Tribunal will result in the approval of a development which is seen to be inimical to proper planning principles, could not be said to be made in bad faith or to take into account an irrelevant consideration."
40 The Full Court also said at [113] that neither the Commission nor the Minister was bound to await the decision of the Tribunal on the appeal.
41 It is clear, therefore, that the Full Court assumed the correctness of the principle of planning law referred to earlier. Although the Full Court did not discuss Esber in its decision, it was referred to both Esber and Ungar v City of Malvern in argument (see pages 99 and 100).
42 The principle of planning law referred to earlier has also been regarded as applicable and correct in Western Australia by SAT's predecessors since at least 1982. In Bonton Pty Ltd v City of South Perth [No 2] (1982) 4 APA 108, the Town Planning Appeals Tribunal, chaired by Mr DK Malcolm QC, determined an appeal against the refusal to grant planning approval for a block of high rise flats. During the course of the hearing of the appeal an amendment was made to the relevant planning scheme that imposed a height restriction that was substantially lower than the proposed height of the building. The Tribunal determined at 111 that "in this case [the new height] restrictions have been given the force of law and the Tribunal is bound by them" and, therefore, refused the appeal. Similarly, having referred briefly to Esber, the Town Planning Appeals Tribunal determined in Hillgrove Pty Ltd v Town of Claremont (1996) 18 SR (WA) 376 at 382 that an applicant was not entitled to rely on the law as it stood at the time the application was made.
43 Having regard to the established position in Australian planning law, it may well ultimately be determined that CPP (and Esber) should only be applied in strictly comparable circumstances to the facts of those cases, namely circumstances in which a written law repeals both an enactment that confers a right to seek review/appeal and an enactment that regulates the way in which the application is to be determined, including on review/appeal. In both CPP and Esber, a written law repealed an enactment that conferred a review/appeal right, which is a "right" within the meaning of s 37(1)(c) of the Interpretation Act, and an enactment that regulated the way in which the application was to be determined, including on review/appeal.
44 The effect of Esber, as applied by the President in CPP, appears to be that where a written law repeals an enactment that confers a right to seek review by the Tribunal, the repeal does not, unless the contrary intention appears, affect the review right. A SAT review proceeding, whether instituted before the repeal of an enactment that confers a review right or after the repeal, but in accordance with r 9 and r 10 of the SAT Rules, is relevantly an "investigation ... or remedy in respect of any such [review] right", within the meaning of par (f) and the concluding words of s 37(1) of the Interpretation Act. Section 37(1) has the effect that the review proceeding "may be instituted [or] continued ... as if the repealing written law had not been passed or made".
45 This appears to be, in effect, what occurred in CPP. The review right that was exercised in CPP was conferred by s 26(1)(a)(i) of the TPD Act. The repealing written law in that case repealed the whole of the TPD Act, including both s 26(1)(a)(i) - the enactment that conferred the review right - and s 20(5) - the enactment that regulated the way in which the application was to be determined, including on review. The effect of s 37(1) of the Interpretation Act was that the repeal of s 26(1)(a)(i) of the TPD Act did not affect the review "right" or the proceeding in respect of the review right, and the proceeding could be continued as if the repealing law had not been passed. Had the repealing law in CPP not been passed, s 20(5) of the TPD Act would have continued in operation, and the Tribunal was therefore correct in ruling that the proceeding should be determined by reference to it.
46 However, in the present case, the written law did not repeal an enactment that conferred a right to seek review. Rather, it repealed an enactment to which the Council, and the Tribunal on review, was required to have regard while it remained a provision of DPS 2, but not after it was deleted from DPS 2.
47 It may, therefore, ultimately be determined that although CPP qualifies the principle of planning law referred to earlier, the qualification is of limited practical significance in relation to the repeal of provisions of planning instruments. The qualification may be restricted to cases in which a planning instrument, which both confers a review right and also regulates the way in which an application is to be determined, is repealed, and an application for review has been or is subsequently commenced under the repealed provision. Although most planning instruments confer a right to seek review of a decision made under the instrument, most applications for review of the refusal or conditional approval of a development application are made under s 252(1) of the PD Act, not under the right conferred by the planning instrument. Section 252(3) of the PD Act states that the exercise of the right to seek review under s 252(1) of the PD Act extinguishes any right to seek review under a planning scheme.
48 Ourwise relies on the dictionary meaning of the adjective "exercisable" namely "able to be exercised, employed, or enforced" (The Short Oxford English Dictionary 5th ed). Ourwise submits, correctly, that the word "exercisable";
"does not seem to [involve] a requirement that such a right or power had actually been exercised, in the sense of being completed. Rather, it merely had to be able to be exercised prior to the appeal."
49 However, Ourwise (and Mr Miller) did not have an exercisable right or power to have the development application determined on the basis of cl 2.2.8, including on review. Rather, Ourwise (and Mr Miller) had - and continue to have:
"A public law right to require the [Council/SAT] to observe its duty to comply with the law as it exists from time to time. A right of that nature, where it exists, is a right to have a claim or application considered in accordance with the statute that governs its determination." (Attorney-General for the State of Queensland & Anor v Australian Industrial Relations Commission & Ors (2002) 213 CLR 485 at [40].)
50 Clause 1.3.5(f) of DPS 2 requires the Council, in considering an application for development approval, to have "due regard" to "the objectives and provisions of the Scheme". Therefore, while cl 2.2.8 was a provision of the Scheme, the Council was required to have regard to it in the determination of the application. However, after cl 2.2.8 was deleted from the Scheme, the Council was not required to - and, indeed, could not lawfully - have regard to that clause. The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the original decision-maker in making the reviewable decision: SAT Act s 29(1). Therefore, the Tribunal is also required to determine the application having regard to the Scheme as it exists at the date of determination, that is now without cl 2.2.8.
51 The Council did not have an exercisable power to determine the development application on the basis of cl 2.2.8. Rather, it had an exercisable power to determine the development application having due regard to the provisions of the Scheme at the date of its determination. Although the Council was required to have regard to cl 2.2.8 prior to its deletion from the Scheme in exercising the power to determine the development application, after the deletion of the clause, the Council was not required - and, indeed, was not lawfully able - to have regard to cl 2.2.8 in exercising its power to determine the development application.
52 Mr Miller submits that cl 2.2.8 should continue to apply in the determination of the proceedings, because the City failed to inform him of the proposal to delete cl 2.2.8 and unreasonably delayed the determination of the development application while cl 2.2.8 continued in operation. However, these arguments do not bear on the determination on whether cl 2.2.8 continues to apply in the determination of these proceedings as a matter of law.
53 It follows that cl 2.2.8 of DPS 2 does not apply in the determination in these proceedings.
54 As the proposed developments do not conform to the housing density requirements of the Codes, they are incapable of approval having regard to cl 1.1.6.2 of DPS 2. Although cl 1.4.3.1 of the Scheme confers a discretion to modify certain requirements or standards, cl 1.4.3.2 expressly excludes modification in respect of the residential density code shown on the Scheme Map.
55 The Tribunal has determined that cl 2.2.8 of DPS 2, which was deleted on 2 March 2007 from the Scheme, does not continue to apply in the determination of these proceedings. Consequently, each development application is incapable of approval under the Scheme.
56 In its submissions in reply, Ourwise requested that, if the Tribunal determines that cl 2.2.8 of DSP 2 does not apply to the application for review, the matter should be adjourned to enable it to consider amending the proposal. Although Mr Miller has not made a similar request, it is appropriate to extend the same opportunity to him.
57 However, any revised plan to comply with the housing density requirements for the R20 code must not be "so different from the original plan as to effectively convert the proposal into a new proposal": Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269 at [24]. If the changes that are necessary in order to reduce the density of the proposed development to conform to the Codes are such that the application becomes, in substance, a different proposal, the proceedings must be dismissed and a fresh development application made to the Council.
58 The Tribunal makes the following orders in each proceeding:
I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
(2005) 30 WAR 97
(1992) 174 CLR 430
(2004) 137 LGERA 178
(2002) 213 CLR 485