TERRA SPEI PTY LTD and SHIRE OF KALAMUNDA [2015] WASAT 134 (3 December 2015)

In the course of its reasons, the Tribunal discussed aspects of the new Planning and Development (Local Planning Schemes) Regulations 2015 (WA) including 'deemed provisions' in all local planning schemes under Sch 2 of the Regulations which commenced on 19 October 2015. The Tribunal found that a provision of the applicable local planning scheme that purported to require that the proposed development be 'generally ... in accordance with' a structure plan is inconsistent with a deemed provision which requires that the consent authority merely have 'due regard to' a structure plan and therefore that the deemed provision prevails over the other provision and the requirement that the development be 'generally ... in accordance with' a structure plan is of no effect. The Tribunal also determined that cl 67(b) of the deemed provisions is a legislative expression of the so­called 'Coty principle' which has the effect that a draft local planning scheme or a draft amendment to the applicable local planning scheme is a relevant matter for consideration in a planning assessment once the draft 'has been advertised', rendering the former assessment of whether it is a 'seriously­entertained planning proposal' otiose. The Tribunal therefore determined that the first stage of the four stage inquiry when a draft local planning scheme or a draft amendment to the applicable local planning scheme is raised for consideration in relation to a development application discussed in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [45] has been overtaken in relation to development assessment under a local planning scheme in Western Australia. However, the Tribunal also determined that once a draft local planning scheme or a draft amendment to the applicable local planning scheme has been advertised and is therefore a relevant matter for consideration in the assessment of a development application, the other three stages of the four stage inquiry discussed in Nicholls at [45], including, in relation to the third stage ('the weight to be accorded to the consistency or otherwise between the application and the draft'), the four principal criteria which should be utilised to determine weight set out in Nicholls at [59], remain applicable.

GMF Contractors Pty Ltd and Shire of Serpentine­Jarrahdale [2006] WASAT 353; (2006) 48 SR (WA) 1

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187

St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318

The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46­47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78]. (City of Kwinana v Lamont [2014] WASCA 112 at [47]).

(Chiefari v Brisbane City Council [2005] QPEC 9; [2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).

(2005) 149 LGERA 117

(1987) 11 NSWLR 67

(1998) 194 CLR 355

(2012) 87 ALJR 98

(2009) 239 CLR 27