CITATION : SPECTATOR INVESTMENTS PTY LTD and CITY OF JOONDALUP [2005] WASAT 299

Town planning - Development application - Video shop - Preliminary issue - Jurisdiction - Construction and interpretation of planning instrument - Whether power to vary condition that shopping floor space not exceed 200 square metres - Whether condition was a "standard or requirement" - Words and phrases: "condition", "requirement", "standard"

City of Joondalup District Planning Scheme No 2, cl 3.6.3, cl 4.5.1

Town Planning and Development Act 1928 (WA), s 8A(1), s 38(5)

Preliminary issue answered "Yes". The city and the Tribunal have power to vary the condition stipulated in cl 3.6.3(e) of City of Joondalup District Planning Scheme No 2

O'Donovan and Town of Vincent [2005] WASAT 120

Woollahra Municipal Council v Carr (1985) 62 LGRA 263

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 114 CLR 672

Napoli v City of Stirling [2004] WATPAT 81

Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319

Zito & Anor v Town of Cottlesloe [2004] WATPAT 77

1 A preliminary issue arose as to whether the Tribunal had power to grant planning approval for a shop with shopping floor space greater than 200 square metres. This turned on whether the floor space limitation was a "standard or requirement".

2 The Tribunal determined that the limitation was a standard or requirement, because it regulated an aspect of a permitted type of use or development, namely a shop. The Tribunal, therefore, had power to grant planning approval.

3 The parties have raised a preliminary issue for determination in review proceedings which are pending before the Tribunal. The proceedings concern an application for review pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (Act) of the decision of the City of Joondalup to refuse development approval for alterations and additions to an existing commercial building and for use of the building as a video shop. The enlarged building would have a total area of 334 square metres.

4 The land the subject of the development application is zoned "Business" under City of Joondalup District Planning Scheme No 2 (DPS 2). It is common ground that the proposed use is classified as a "shop" for the purposes of DPS 2. The term "shop" is defined in Sch 1 to mean "premises where goods are kept exposed or offered for sale by retail or hire, but the term does not include a Showroom, Drive Through Food Outlet or a Restricted Premises".

5 The city refused the development application for the following reason:

"The proposed shop is of 304 [sic] [square metres] NLA, whereas a shop is a prohibited use in a Business zone unless under clause 3.6.3 the shop does not exceed 200 [square metres]."

6 The preliminary issue identified by the parties is whether cl 4.5.1 of DPS 2 empowers the city, and the Tribunal on review, to vary the condition stipulated in cl 3.6.3(e) that "shopping floor space does not exceed 200 [square metres] NLA". As will be seen, the determination of this issue turns on whether the specified maximum shopping floor space is "a standard or requirement prescribed under the Scheme" for the purposes of cl 4.5.1 It is common ground that if the answer to the preliminary issue is "yes", the Tribunal has power to grant development approval notwithstanding the non-compliance, whereas if the answer is "no" the application for review must be dismissed as approval of the development application is not in the discretion of the responsible authority under DPS 2 and the Tribunal would, therefore, not have jurisdiction to review the city's decision under s 8A(1) of the Act.

7 The development application the subject of the proceedings is a class 1 application which is usually required to be determined by an ordinary member sitting alone: Act s 38(4). However, the President formed the opinion under s 38(5) of the Act that the determination of the preliminary issue is likely to raise complex or significant planning issues, and listed the issue for determination on the documents before me.

8 The parties did not address the meaning of the expression "shopping floor space" in cl 3.6.3(e) of DPS 2. One possible interpretation is that it is restricted to that part of a "shop" where customers can view and consider purchasing or hiring goods. This interpretation would exclude counters, staff areas, amenities and storage areas. However, the Tribunal proceeds to determine the preliminary issue on the basis of the parties' joint position that the proposed "shopping floor space" exceeds 200 square metres net lettable area.

9 Clause 3.1.1 creates 12 zones including the "Business" zone. Clause 3.2.1 states that the Zoning Table "indicates subject to the provisions of the Scheme, the permissibility of use classes within the various zones", and that "permissibility of any use class is indicated by a symbol" determined by cross-reference between listed uses and zones in the Zoning Table. Clause 3.2.2 states that "the symbols used in [the Zoning Table] have the following meanings" and then lists four symbols, namely "P", "D", "A" and "X", together with a corresponding meaning for each. At the point determined by cross-reference between the use class "shop" and the "Business" zone in the Zoning Table appears "X*". The following text appears after the Zoning Table: "* - refer to Clause 3.5.2 and/or Clause 3.6.3 for further information".

10 It is apparent from cl 3.2.2 that the asterisk in the Zoning Table after "X" is not in fact a symbol or part of a symbol referred to in cl 3.2.1. Reading cl 3.2 as a whole, the only "symbols" used in the Zoning Table to indicate the permissibility of a use class are the four letters set out in sub-clause 2. The Zoning Table symbol determined by cross-reference between the use class "shop" and the "Business" zone is "X". Clause 3.2.2 states that the symbol "X" means "a Use Class that is not permitted except under the provisions of clause 3.1.5". Clause 3.1.5 provides that land identified in s 1 of Sch 2 may be used for the use or uses listed there. However, the land the subject of the development application is not identified in s 1 of Sch 2.

11 In consequence, under the Zoning Table, shops are not permitted on the land in question under any circumstances. However, the Zoning Table is expressed to be "subject to the provisions of the Scheme". The asterisk refers to cl 3.5.2 and cl 3.6.3. These sub-clauses are in identical terms except that the former relates to the "Mixed Use Zone" (in which, under the Zoning Table, shops are also designated as an "X" use) whereas the latter relates to the "Business" zone. Clause 3.6.3 provides as follows:

"A shop may be permitted in the Business Zone, subject to the Council's discretion after giving notice in accordance with Clause 6.7, and provided the following conditions have been met:

(e) Shopping floor space does not exceed 200 [square metres] NLA;

(f) The parcel of land is on a separate green title lot of not less that 1000 [square metres];

(g) The aggregate shopping NLA on any group of adjoining or adjacent lots in the Business and Mixed Use Zones must not exceed 1000 [square metres]; and

(h) The direct street frontage of any lot containing a shop must be at least 20 metres in width."

12 The development application was advertised for 21 days in accordance with cl 6.7 of the scheme.

13 Clause 4.5.1 provides as follows:

"Except for development in respect of which the Residential Planning Codes apply and the requirements set out in Clauses 3.7.3 and 3.11.5, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, notwithstanding the non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit."

14 Spectator Investments submits that cl 3.6.3(e) constitutes "a standard or requirement prescribed under the Scheme" for the purposes of cl 4.5.1, not an absolute prohibition on a particular type of development. The city submits that cl 3.6.3(e) does not constitute a standard amenable to variation under cl 4.5.1, as it does not merely regulate an aspect of permitted development.

15 Spectator relies on the decision of the Tribunal in O'Donovan and Town of Vincent [2005] WASAT 120. At [37] the Tribunal noted that as the terms "standard" and "requirement" were not defined in the town planning scheme under consideration or in the Residential Design Codes of Western Australia, the scheme required that they be given their normal and common meanings. As the terms are undefined in DPS 2, cl 1.9.3 also requires that they be given their normal and common meanings. Having set out the dictionary definitions of the words "standard" and "requirement" at [37] - [38], the Tribunal observed in O'Donovan and Town of Vincent at [39] as follows:

"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."

16 The Zoning Table, which by its terms relevantly absolutely prohibits use of land in the "Business" zone as a "shop", is qualified by cl 3.6.3 which provides that a "shop" may be permitted in the zone subject to the city's discretion after giving notice in accordance with cl 6.7. Significantly, the land use which is absolutely prohibited by the Zoning Table, but which is made permissible by cl 3.6.3, is a "shop" which, as noted earlier, is a defined term for the purposes of the scheme. Moreover, each of the four "conditions" set out in cl 3.6.3 specifies a level or something which is demanded, obligatory or needed in order to carry out "shop" development. Each condition regulates an aspect of a permitted type of use or development, namely a "shop". In particular, the first sub-paragraph regulates the maximum shopping floor space of a shop. Each condition is, therefore, "a standard or requirement prescribed under the Scheme".

17 The city advanced six arguments against this interpretation. First, it submits that the condition specified in cl 3.6.3(e) "defines the only permissible form of shop development in the Business zone and therefore constitutes a prohibition upon any development which does not comply with its requirements". However, the words "and provided the following conditions have been met" do not purport to be and are not definitional of a permissible type of land use. Rather, they introduce requirements for approval of "shops" in the zone.

18 The result might be different if a land use were defined in a manner which incorporates a numerical maximum; cf Woollahra Municipal Council v Carr (1985) 62 LGRA 263. DPS 2 recognises a "convenience store" and a "corner store" as separate retail land uses to a "shop". The definition of "convenience store" states that "the buildings associated with a convenience store shall not exceed 200 [square metres] net leasable area". The definition of "corner store" is "any land and building comprising a dwelling house attached to which is a shop not exceeding 100sq.m. gross floor area ...".

19 It would certainly be arguable that the maximum areas specified in these definitions do not regulate an aspect of a permitted type of use or development, but rather form part of the definition of what constitutes the use or development. In other words, a building exceeding 200 square metres cannot constitute a "convenience store" and a shop exceeding 100 square metres cannot constitute a "corner store" even though it is attached to a dwelling house. In contrast, a shop having a shopping floor space exceeding 200 square metres is still a "shop", although one which, by virtue of cl 3.6.3(e), is incapable of approval absent the dispensing power in cl 4.5.1.

20 Second, the city contends that "to use [cl] 4.5.1 to vary a condition stipulated by [cl] 3.6.3 would in effect allow an applicant to modify the Zoning Table". However, it is not cl 4.5.1 that has the effect of modifying or varying the Zoning Table, but rather the words "subject to the provisions of the Scheme" in cl 3.2.1 and the words "a shop may be permitted in the Business Zone, subject to Council's discretion after giving notice in accordance with Clause 6.7" in cl 3.6.3.

21 Third, the city contends that the interpretation it advances is "consistent with the way the Scheme functions as a whole in that [cl] 4.5.1 expressly does not apply to the requirements set out in [cl] 3.7.3 and [cl] 3.11.5". However, the express exclusion of the requirements set out in those clauses is consistent with the interpretation to which the Tribunal has arrived. The requirements set out in the excluded clauses are that "the floor space figures contained within Schedule 3 shall be adhered to except as otherwise varied by an Agreed Structure Plan for the centre locality". Schedule 3 specifies the floor space in relation to a number of locality retail centres. The exclusion of the requirements set out in the specified clauses from cl 4.5.1 indicates that floor space provisions are "a standard or requirement prescribed under the Scheme" and that, absent the exclusion, cl 4.5.1 would permit the city to vary that standard or requirement. It is to be noted that the third condition in cl 3.6.3 (ie par (g)) is similarly expressed to the requirement to adhere to the floor space figures contained within the Sch 3 in cl 3.7.3 and cl 3.11.5.

22 Fourth, the city emphasises that cl 3.6.3 uses the term "condition" (rather than "standard" or "requirement") and that this means "a precondition to the exercise of a discretionary power". In reply, Spectator submits that "the normal and common meaning of the term 'condition' encompasses standard or requirement". The Tribunal agrees with Spectator's submission. The most apposite meanings of the noun "condition" in the context of the cl 3.6.3 are as follows:

"6. a restricting, limiting or modifying circumstance. 7. A circumstance indispensable to some result; a prerequisite; that on which something else is contingent. 8. Something demanded as an essential part of an agreement." (The Macquarie Dictionary, Revised Third Edition, page 406).

23 In this context, therefore, the term "condition" is relevantly synonymous with "standard or requirement". It is correct that, absent the power to vary a standard or requirement conferred by cl 4.5.1, the "conditions" would constitute preconditions to the exercise of a discretionary power which must be satisfied before a discretion could arise. However, in this respect, the conditions are no different to the requirements specified in cl 3.6.2. That clause provides that all development in the "Business" zone "shall conform ...with the general provisions set out below" which include minimum front and side setbacks. The city accepts that these provisions are standards or requirements amenable to variation under cl 4.5.1.

24 Fifth, the city contends that the difference in wording between cl 3.6.3 and cl 3.6.2 suggests that whereas sub-clause 2 sets out various standards or requirements, sub-clause 3 "provides for the permissibility (or prohibition) of the development itself". However, it is apparent from the terms of cl 3.6.3 that that sub-clause does two things. First, it varies or modifies the Zoning Table by making shops permissible subject to discretion and after giving notice in the zone. Second, it imposes certain standards or requirements in relation to such development in the zone. In this regard, the expression "and provided the following conditions have been met" in cl 3.6.3 has an equivalent meaning and effect to "shall conform ... with the general provisions set out below" in cl 3.6.2.

25 The same result could have been achieved by designating the use class "shop" in the "Business" zone as an "A" use in the Zoning Table, that is "a Use Class that is not permitted unless the Council has exercised its discretion and has granted planning approval after giving special notice in accordance with Clause 6.7" (cl 3.2.2), and either leaving cl 3.6.3 as it is or deleting from it the words "subject to Council's discretion after giving notice in accordance with Clause 6.7, and". However, in light of the terms of cl 3.6.3 and the defined term "shop" for the purposes of the scheme, the fact that this result could have been achieved through a different designation in the Zoning Table does not require the construction advocated by the city. Moreover, given that the scheme contemplates that shop development in the "Mixed Use" and "Business" zones is subject to a special planning regime, there is some logic in both designating the use as permissible and prescribing the special requirements for approval in the same place. This is what cl 3.5.2 and cl 3.6.3 do.

26 Finally, the city drew in aid the expressly stated intent of the "Business" zone to accommodate "small scale complementary and incidental retailing uses" (cl 3.6.1), and submits that this supports its interpretation of cl 3.6.3. However, these words are equivocal in the present context. They are equally consistent with an interpretation of cl 3.6.3 under which the conditions are standards or requirements. In this regard, the fact that the city, and the Tribunal on review, has power under cl 4.5.1 to vary the requirement that shopping floor space not exceed 200 square metres does not mean that the condition is ignored. It will be incumbent on Spectator to satisfy the Tribunal that the planning purpose or objective sought to be achieved by the standard or requirement is satisfied notwithstanding the non-compliance. Moreover, the stated intent of the zone will, no doubt, be a material consideration in the exercise of discretion.

27 The answer to the preliminary issue is "Yes". The city, and the Tribunal on review, have power under cl 4.5.1 to vary the condition stipulated in cl 3.6.3(e).

(1) The preliminary issue identified at par [6] of the Tribunal's reasons for decision dated 15 November 2005 is answered "Yes".

(2) The proceedings are listed for directions in the Deputy President's list at 9.30am on 25 November 2005.

I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER