17 Ms Callanan, counsel for the respondent, submitted that, by reason of cl 20(4)(e)(i) of TPS 1, the respondent did not have discretion to grant approval for the Application. She submitted that the stated permissibility of multiple dwelling use of the Land in the Zone Table to cl 13 is to be read, in accordance with cl 13(1), "subject to the provisions of" TPS 1, which include cl 20(4)(e)(i). She submitted that, having regard to the definitions of "multiple dwelling" and "dwelling", the permissibility of a multiple dwelling use on the Land under the Zone Table to cl 13 was subject to the specific non-permissibility of that use in the Hyde Park Precinct under cl 20(4)(e)(i).

18 Ms Callanan also submitted that the development application was not a "non­complying application", within the meaning of cl 40 of TPS 1, and that the respondent did not, therefore, have discretion to approve it under that clause, for either or both of two reasons. First, it did not satisfy par (a) of cl 40(1), because cl 20(4)(e)(i) was not a "standard" or "requirement" of the Scheme. Second, the development application was caught by cl 40(1)(b), because it was "an application involving a prohibited use". Ms Callanan submitted that the terminology "not permitted", which was used in cl 13(2) in relation to the "X" classification, was carried over into cl 20(4)(e)(i) in relation to the Hyde Park Precinct, and that, accordingly, that clause "must have the same effect as if a multiple dwelling use was designated in the Zone Table for the Land as an 'X' use". She submitted that the "normal and common meaning" of "prohibited use" was "a use that is not allowed or is not permitted". Accordingly, the development application involved "a prohibited use", because of cl 20(4)(e)(i).

19 Ms Callanan's ultimate submission was that, as the grant of consent to the development application was not in the discretion of the respondent, the applicants had no right to seek a review by the Tribunal of the respondent's determination under s 8A of the TPD Act.

20 Dr O'Donovan, who appeared for himself and Ms O'Donovan, submitted that "the proposed development of multiple dwellings is not a 'use' according to the normal or common meaning of that term". He submitted that the normal or common meaning of the term "use" was that stated by Burt CJ, in construing the meaning of that word within the definition of "development" in s 2(1) of the TPD Act in University of Western Australia v City of Subiaco (1980) 52 LGRA 361 at 363, namely "activities which are done in ... or on the land but do not interfere with the actual physical characteristics of the land". Dr O'Donovan, however, contended that " 'multiple dwelling' is a 'use class' listed (but not defined) in the Zone Table" to cl 13 of TPS 1. He submitted that "the Zone Table suggests that 'multiple dwellings' is a use 'permitted' in a 'Residential Zone' ".

21 However, Dr O'Donovan's principal submission was that, while multiple dwellings were "not permitted" in the Hyde Park Precinct, "it does not follow that multiple dwellings are a 'prohibited use' within [cl] 40(1)(b) of the Scheme". He submitted that "the normal or common meaning of 'prohibited' is unlawful or proscribed by statute: Australian Posters Pty Ltd v City of Perth (1985) 58 LGRA 57". He sought to draw a distinction between the words "not permitted" in cl 20(4)(e)(i) and "prohibited use" in cl 40(1)(b) of the Planning Scheme. He submitted that "the term 'prohibited' has a much stronger connotation in its normal or ordinary meaning than merely 'not permitted' ", and that the use of different terminology in the two clauses suggested that there was "a deliberate intention in the Scheme to deal with developments which are 'not permitted' in a different way from developments that involve a 'prohibited use' ".

22 Dr O'Donovan relied on the decision of the Town Planning Appeal Tribunal in Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71 at [36], in which, he submitted, that Tribunal "accepted that there is a discretion to approve a multiple dwelling that was 'not permitted' in the Florence locality where a similar restriction applies".

23 Dr O'Donovan also submitted that the development application was a "non-complying application" within the meaning of s 40(1)(a) of TPS 1, because cl 20(4)(e)(i) constituted a "standard". He submitted that the normal or ordinary meaning "standard" is "a rule, guideline, model or benchmark". In his oral submissions, Dr O'Donovan also said that the ordinary meaning of "standard" included "a principle".

24 Dr O'Donovan submitted that, even if a technical meaning were applied to the term "standard", "a restriction on the development of a multiple dwelling is clearly a 'development standard' ". He referred to the statutory definition of "development standards" in s 4(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("EP&A Act"), and in particular to par (e) of that definition, which refers to the "the intensity or density of the use of any land, building or work". He submitted that the "effect of the restriction in [cl] 20(4)(e) of the Scheme is that the Applicants would be able to build only 2 grouped dwellings on the site, whereas the R80 zoning allows for three multiple dwellings. In effect, therefore, the restriction relates to the density of the building on the site".

25 Finally, Dr O'Donovan submitted that, if the intention of the respondent in its Scheme had been to "prohibit" multiple dwellings in the Hyde Park Precinct, it could have said so by using the word "prohibited" in cl 20(4)(e)(i) or by incorporating a definition of the term "prohibited use" in the Scheme. He submitted that that the lack of a definition "indicates that the Respondent has a discretion to approve such developments pursuant to [cl] 40(2) of the Scheme".

26 The determination of the preliminary issue turns on the proper construction of certain clauses of TPS 1, read in the context of the provisions of that planning instrument as a whole. In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297, Mason and Wilson JJ stated at 320 as follows:

"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction."

27 In referring to the propriety of departing from the literal interpretation, Mason and Wilson JJ stated at 321:

"It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

28 The Tribunal accepts the respondent's submission that the Zone Table to cl 13 is relevantly qualified by cl 20(4)(e)(i) of the Scheme. There are several textual reasons why, discerning the legislative intention by reference to the language of TPS 1 read as a whole, this is the case.

29 First, cl 13(1) of TPS 1 states that the Zone Table indicates, "subject to the provisions of this Scheme", the uses permitted in the Scheme Area. It does not say "subject to the provision of this Part", namely Pt 2, which is entitled "Land Use". In other words, the Zone Table, which indicates the uses permitted in the various zones, is subject to any relevant provision of the Scheme. Although cl 20 is contained in Pt 3, which is entitled "Development Requirements", insofar as it provides that multiple dwellings "are not permitted" in certain Precincts or parts of Precincts, it is a provision of TPS 1 subject to which the Zone Table is to be read.

30 Second, although cl 7(5) of TPS 1 provides that a word or term used in the Scheme, which is not defined, "is to have its normal and common meaning", provisions of the Scheme itself may shed light on, or indeed indicate quite categorically, the meaning of a word or term. It is plain from the words used in cl 13(1), that although "multiple dwelling" is listed in a column entitled "USE CLASS" in the Zone Table, it is in fact relevantly a "use". Clause 13(1) states that the Zone Table "indicates, subject to the provisions of this Scheme, the uses permitted in the Scheme area" and that "the permissibility of any uses is determined by cross­reference between the uses in the Use Class column ... and the list of zones at the top of the Zone Table" (emphasis in bold added). Similarly, the description of the symbols in cl 13(2) employs the term "use". It is, therefore, apparent from cl 13 that, in TPS 1, the designation "multiple dwelling" is, or at least includes, a reference to the use of land as a "multiple dwelling", that is, according to the definition in the R­Codes as incorporated into TPS 1, "a dwelling in a group of more than one dwelling on a lot where any part of a dwelling is vertically above part of any other".

31 Third, it is significant that cl 20(4) employs the same terminology of "not permitted" as does cl 13(2) in its description of the meaning of the symbol "X" when it is used in the Zone Table. The only type of use and development which is stated in cl 20(4) to be "not permitted" is "multiple dwellings". The clause states that that use is "not permitted" in six Precincts or parts of Precincts.

32 For these reasons, on its proper construction, cl 20(4) of TPS 1 qualifies the Zone Table to cl 13 in relation to "multiple dwellings" in the six nominated Precincts or parts of Precincts by, in effect, altering the designation for the purposes of cl 13(2) of that use in relation to those areas from "P" ("the use is permitted by the Scheme") to "X" ("a use that is not permitted by the Scheme"). In addition, cl 20(4) precludes the carrying out of physical works so as to construct or create a "multiple dwelling" in the nominated Precincts or parts of Precincts.

33 A purposive interpretation, consistent with s 18 of the Interpretation Act 1984 (WA) ("Interpretation Act") and the words of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (supra), arrives at the same result. Section 18 of the Interpretation Act provides as follows:

"Purpose or object of written law, use of in interpretation

In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."

(c) To ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which ­

(i) recognises the individual character and needs of localities within the Scheme zone area; ... "

35 A construction of cl 20(4)(e)(i), such that it qualifies the Zone Table to cl 13, promotes the purpose or object underlying the Scheme "to ensure that the use and development of land" is managed in a manner which "recognises the individual character and needs of localities within the Scheme zone area". It is apparent that, by cl 20(4), TPS 1 has sought to recognise the individual character and needs of six Precincts or parts of Precincts, in light of which the use and development of multiple dwellings is "not permitted". In contrast, it would make no sense to construe cl 20(4)(e)(i) of TPS 1 such that it only precluded the carrying out of physical works to construct or create a "multiple dwelling" on certain land, while the use of that same land as a "multiple dwelling" was permitted by cl 13.

36 The Tribunal also accepts the respondent's submission that the subject development application is not a "non­complying application", within the meaning of cl 40 of TPS 1, and that accordingly the respondent did not have discretion under that provision to approve the Application notwithstanding cl 20(4)(e)(i) of the Scheme. In particular, the development application did not satisfy par (a) and fell within par (b) of cl 40(1).

37 In accordance with cl 7(5) of TPS 1, as the terms "standard" and "requirement" are not defined in the Scheme or in the R­Codes, they are to be given their normal and common meanings. According to the Macquarie Dictionary (revised 3rd edition, p 1832), the noun "standard" has a great many meanings. The most apposite meaning in the context of cl 40(1)(a) is "anything taken by general consent as a basis of comparison; an approved model" and "a level of quality which is regarded as normal, adequate, or acceptable". The noun "requirement" is defined in the same dictionary at p 1606 as:

"1. that which is required; a thing demanded or obligatory: a knowledge of Spanish is among the requirements. 2. The act or an instance of requiring. 3. A need: to meet the requirements of daily life."

"1. to have need of; need: he requires medical care. 2. to call on authoritatively, order, or enjoin (a person, etc.) To do something: to require an agent to account for money spent. 3. to ask for authoritatively or imperatively; demand. 4. to impose need or occasion for; make necessary or indispensable: the work required infinite patience. 5. to call for or exact as obligatory: the law requires annual income­tax returns. 6. to place under an obligation or necessity. 7. to wish to have: will you require tea at four o'clock?­ v.i. 8. to make demand; impose obligation or need: to do as the law requires."

39 Thus, a "standard" is a level which is regarded as normal, adequate or acceptable, and a "requirement" is something which is demanded, obligatory or needed. It is, therefore, apparent that these terms refer to something which regulates an aspect of a permitted use or development, not something which absolutely prohibits, or does not permit under any circumstances, a particular type of use or development.

40 Such a construction of the words "standard" and "requirement", and of par (a) of cl 40(1) of TPS 1 generally, is consistent with cl 18 of the Scheme, which is entitled "Source of Development Requirements". That clause provides as follows:

"Unless otherwise consistent with a planning approval, the development of land is to be in accordance with the standards and requirements contained in this Scheme Text, the Scheme Map, the policy applying to the land proposed to be developed, the planning policies and the Residential Planning Codes."

41 Clause 18 of TPS 1 clearly contemplates that "standards" and "requirements" regulate the carrying out of development. Moreover, it contemplates that the development must be permitted by the Scheme in order for it to be subject to "standards" and "requirements".

42 The distinction between regulation of an aspect of a proposed development by means of a "standard or requirement of this Scheme", on the one hand, and absolute prohibition of a particular type of use and development, on the other hand, is neatly demonstrated by the terms of par (a) of cl 20(4) of TPS 1, which concerns the Cleaver Precinct. That paragraph is as follows:

(i) Multiple dwellings are not permitted in this precinct;

(ii) Buildings shall be set back from the street frontage such distance as is generally consistent with the building set back on adjoining land and in the immediate vicinity;

(iii) A reduction in the provision on­site parking may be permitted."

43 In this paragraph, subparagraph (ii) imposes a "standard" or "requirement" within the meaning of par (a) of cl 40(1) of the Scheme. In contrast, subparagraph (i) does not impose a "standard" or "requirement", but rather precludes the carrying out of a particular type of use and development, namely "multiple dwellings", under any circumstances.

44 As noted earlier in these reasons, Dr O'Donovan referred the Tribunal to the statutory definition of the term "development standards" in s 4(1) of the New South Wales EP&A Act. That definition states, in part, as follows:

" 'Development standards' means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

...

(e) the intensity or density of the use of any land, building or work; ... "

45 In New South Wales, State Environmental Planning Policy No 1 ­ Development Standards, made under s 39 of the EP&A Act, provides flexibility by permitting a consent authority to grant development approval, notwithstanding a breach of a "development standard", where the authority is satisfied that it is unreasonable or unnecessary to require strict compliance with that standard in the circumstances of the case: see cl 6 and cl 7.

46 As the definition of "development standards" in s 4(1) of the NSW EP&A Act is a statutory definition in a particular statutory context, it is necessary to exercise caution in using any part of it to assist in the construction of a planning scheme in this State. However, the NSW definition of "development standards", and the many authorities which have construed and applied that definition, highlight the distinction, which is also apparent from the wording of par (a) of cl 40(1) of TPS 1, between standards or requirements which regulate the carrying out of development, on the one hand, and absolute prohibition of a particular type of use and development, on the other hand. In Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319, Giles JA, with whom Heydon JA (as his Honour then was) and Young CJ in Eq agreed, observed at pp 342 ­343 [96] as follows:

"The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) [(1990) 71 LGRA 222 at 232 ­ 233] mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard."

47 As noted earlier in these reasons, Dr O'Donovan relied in particular on par (e) of the NSW definition of the term "development standards" to support his submission that the preclusion of "multiple dwellings" in the Hyde Park Precinct constituted a standard or requirement of the Scheme. He asserted that, whereas under TPS 1 and the R­Codes, the Land could accommodate three "multiple dwellings", it could only accommodate two "grouped dwellings", and that accordingly, the preclusion of the former was a standard or requirement relating to "the density of the building on the site". Dr O'Donovan did not call any evidence to support the assertion. However, assuming it to be correct, par (e) of the NSW definition cannot assist the applicants in this case, both because of the caution referred to earlier and also because the preclusion of "multiple dwellings" on the Land by cl 20(4)(e)(i) of TPS 1 is plainly not a requirement or standard in respect of the intensity or density of the use of any land, building or work, but rather an absolute prohibition on a particular type of use and development of land. In contrast, a maximum plot ratio would be an example of a requirement or standard in respect of intensity or density of a permitted type of development.

48 The term "prohibited use", which appears in par (b) of cl 40(1) of TPS 1, is not defined in the Scheme or elsewhere in the planning legislation, and does not appear anywhere else in the Scheme. In accordance with cl 7(5) of TPS 1, the word "prohibited" is to be given its normal and common meaning. According to the Macquarie Dictionary (supra) at p 1517, the verb "prohibit" means:

"1. to forbid (an action, a thing) by authority: smoking is prohibited. 2. to forbid (a person) from doing something. 3. to prevent; to hinder."

49 A "prohibited use" is, therefore, a use which is forbidden or prevented. The adjective "forbidden" is defined in the same dictionary at p 732 as "prohibited". The verb "prevent" is relevantly defined at p 1506 as "to keep from occurring; hinder". The normal or common meaning of "prohibited" is not, therefore, as Dr O'Donovan submitted, "unlawful or proscribed by statute". However, in some contexts, such as that considered in Australian Posters Pty Ltd v City of Perth (supra), it may bear that meaning. In that case, the sections of the Local Government Act 1960 (WA) that were in issue permitted a council to make by­laws for the "prohibition" of bills, placards and advertisements. Clearly, in that statutory context, a by­law made under that provision rendered a bill, placard or advertisement contrary to its terms "unlawful or proscribed by statute".

50 As noted earlier in these reasons, cl 13 of TPS 1 identifies, subject to the provisions of the Scheme, "the uses permitted in the Scheme area", and states that "the permissibility of any uses is determined by cross reference between the uses in the Use Class column on the left hand side of the Zone Table and the list of zones at the top of the Zone Table". For the purposes of par (b) of cl 40(1), a "prohibited use" is, therefore, a use identified in the Use Class column in the Zone Table to cl 13 or elsewhere in the Scheme by a designation or words which have the effect of forbidding or preventing the use from occurring. The words used in cl 13 and elsewhere in the Scheme which have this effect are "not permitted" (under any circumstances).

51 In practical terms, under TPS 1, an application involving a "prohibited use" is an application for consent to a use identified by the symbol "X" in the Zone Table to cl 13 or elsewhere in the Scheme, such as in cl 20(4)(e)(i), by the use of the words "not permitted" (under any circumstances). Although the symbols "AA" and "SA" defined in cl 13(2), also use the words "not permitted", those words are qualified by the words "unless the Council has exercised its discretion by granting planning approval". Similarly, although the symbol "IP" refers to a use that is "not permitted", those words are also qualified by the words "unless such use is incidental to the predominant use as decided and approved by the Council".

52 While in some statutory contexts the word "prohibited" includes not only absolute prohibition, but also qualified prohibition (Country Roads Board v Neale Ads Pty Ltd [1930] HCA 5; (1930) 43 CLR 126; Taylor v Brighton Borough Council [1947] 1 KB 736), as Hope J said in Attorney General (on the relation of Goddard and Ors) v North Sydney Municipal Council and Anor [1971] 2 NSWLR 373 at 381; 22 LGRA 225 at 233, these authorities "do no more than show that the meaning to be given to the word 'prohibited' must depend upon the context". The context in the present case clearly indicates that an application involving a "prohibited use" does not include a use relevantly designated in relation to a particular zone by the symbol "AA" or "SA" or, at least where the respondent has not decided that the use is not incidental to the predominant use, by the symbol "IP", in the Zone Table to cl 13. Were it otherwise, the beneficial purpose of the discretion conferred by cl 40(2) of TPS 1 to approve a "non-complying application" would be largely undermined. Neither party contended for such a result.

53 A purposive construction of the Scheme arrives at the same result. It is apparent from cl 13 that the Scheme aims to preclude, under any circumstances, approval of certain land uses in parts of the Scheme area. This aim is consistent with the first stated objective and intention of the Scheme in cl 6(1), namely "controlling and guiding development and growth in a responsible manner", and a number of the "general objectives" of the Scheme stated in cl 6(3), including "to protect and enhance the health, safety and general welfare of the Town's inhabitants" (par (b)) and "to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework which recognises the individual character and needs of localities within the Scheme zone area" (par (c)(i)).

54 The construction of par (b) of cl 40(1) arrived at above promotes this purpose or object underlying the Scheme, because it precludes the exercise of discretion under cl 40(2) in the case of an application involving a use which the Scheme has stated is "not permitted" (under any circumstances). In contrast, the construction advanced by the applicants in this case would undermine this purpose or object of the legislation, because it would permit an assessment and approval of an application for a use which is "not permitted" (under any circumstances). Thus, for example, although "hazardous or noxious industry" is a use identified as "not permitted" (under any circumstances) in any of the five zones referred to in the Zone Table to cl 13, the effect of the applicants' submission, if correct, would be to permit applications for hazardous or noxious industry to be made and approved under cl 40.

55 Finally, the decision of the Town Planning Appeal Tribunal in Choice Constructions Pty Ltd and Town of Vincent (supra) is of no assistance to the applicants or the Tribunal. As is apparent from that decision, at [4], the application before the Tribunal was for "grouped dwellings", rather than for "multiple dwellings". In that case, the Town Planning Appeal Tribunal determined, at [18], that, under cl 40 of TPS 1, there was "an overarching and broader discretion" to approve the development there in question, notwithstanding the non-compliance with the prescribed plot ratio under the Scheme. However, that discretion is not available in the present case.

56 On its proper construction, cl 20(4)(e)(i) of TPS 1 which states that, in the Hyde Park Precinct, "multiple dwellings are not permitted" (under any circumstances), qualifies the Zone Table to cl 13 by not permitting (under any circumstances) "multiple dwelling" use in that part of the Residential Zone.

57 On the proper construction of cl 40 of TPS 1, the discretion conferred on the respondent by subclause (2) to approve a "non-complying application" was not available in relation to the applicants' development application for both of two reasons.

58 First, cl 20(4)(e)(i) did not set a "standard" or a "requirement", on the proper construction of those words in par (a) of cl 40(1). Second, the proposed "multiple dwelling" use of the Land was a "prohibited use" for the purposes of par (b) of cl 40(1), because it was a use identified in the Scheme as relevantly forbidden or prevented in relation to the Hyde Park Precinct by the use of the words "not permitted" (under any circumstances) in cl 20(4)(e)(i).

59 It follows that the applicants, who purported to apply to the Tribunal for review of the respondent's decision to refuse the application under s 8A of the TPD Act, had no right or authority to do so, because under TPS 1 the respondent did not have discretion to grant consent to the application for planning approval. Had the applicants purported to seek review under cl 46 of TPS 1, the same conclusion would have been reached, as the right to seek review under that provision is only "against the exercise by the Council of a discretion".

60 The Tribunal has power to determine whether these proceedings fall within its jurisdiction. However, it has determined that it does not have jurisdiction to entertain the review proceedings which the applicants have sought to commence. It follows from the reasons above that, had the Tribunal had jurisdiction to review the respondent's determination (eg arising from a deemed refusal), it would have arrived at the same conclusion as that reached by the respondent.

61 Accordingly, the Tribunal makes the following order:

I certify that this and the preceding 22 pages comprise the reasons for decision of the Tribunal.

______________________

D R Parry

Senior Member