43 It is not fully clear to us whether counsel for the appellant in this case referred to the materially different wording in s 8A(1) when compared with the former s 37 and appeal rights which are expressed in equivalent terms. Unlike an "appeal" as formerly defined in s 37, an appeal (now review) under s 8A(1) is not required to be "in respect of the exercise of a discretionary power by the responsible authority under the scheme". Certainly, where a responsible authority has categorised a proposed use in such a way that approval is not possible under a scheme and has refused planning approval, a purported appeal against the refusal would not be "in respect of the exercise of a discretionary power by the responsible authority under the scheme".
44 However, s 8A(1) is expressed in different terms. As discussed earlier, under s 8A(1), an application for review of the responsible authority's decision to refuse an application may be made where each of the three conditions is satisfied. While the first condition is that approval of the application is in the discretion of the responsible authority, the review is not restricted to the exercise of a discretionary power by the authority. Under s 8A(1), the reviewable decision is the decision of the responsible authority to refuse the application or approve it subject to any condition where, as a matter of law, it is in its discretion to approve it. It is not the function of the Tribunal on review "to set aside the [responsible authority's] decision about the characterisation of use". Rather, in order to determine whether the application for review is competent, the Tribunal must determine for itself whether, under the relevant town planning scheme, the grant of approval to the application is in the discretion of the responsible authority. This may involve as a preliminary issue the classification of a proposed use for the purposes of the scheme. Moreover, the Tribunal may be required in undertaking a review within its jurisdiction to classify a proposed use in order to make the correct and preferable decision under the applicable scheme.
45 The second TPAT decision relied on by the City was Zito & Anor v Town of Cottesloe. In that case, the Deputy President of the Tribunal dismissed a planning application on the basis that the Tribunal did not have discretion to approve it in the form proposed as it exceeded the maximum permissible building height of two storeys: at [23]. Although the Deputy President observed that it was not necessary for him to deal with the remaining issues in the appeal, he made "some observations on the remaining issues" on the basis that it would be "of some assistance in relation to future applications in relation to this site": at [24].
46 One of the issues in relation to which the Deputy President made an observation was whether the Tribunal had power to determine the point from which natural ground level should be measured in circumstances where the relevant town planning scheme provision stated that the maximum building height was to be measured from the natural ground level "at the centre of the site as determined by the Council" and the Town had made a determination as to where natural ground level should be measured from. The Town contended "that that determination is not susceptible to appeal, it being a determination of a factual matter analogous to a determination of a land use classification". The Deputy President observed that "in relation to land use classifications, the Tribunal has on a number of occasions held that they do not involve discretionary decisions (see, for example, Millawa Pty Ltd v City of Swan [2003] WATPAT 78 [in which the TPAT simply applied without analysis Deepblue Enterprises Pty Ltd v Town of Port Hedland and Buttfield & Ors v City of Albany & Anor]; Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32)". He concluded that the appellants' objections to the Town's determination of natural ground level could only properly be dealt with in the context of proceedings for judicial review or declaratory relief. However, in so observing the Deputy President did not have the opportunity to consider the terms of s 8A(1) in relation to the broader issue. Moreover, unlike TPAT, depending on the terms of the control provisions in a scheme, this Tribunal may well have power under s 29(1) of the SAT Act to determine the point from which natural ground level is to be measured where that power is exercisable by the responsible authority in making the reviewable decision: Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [50]. However, as we have not considered the terms of the scheme in issue in Zito & Anor v Town of Cottesloe we do not express a view as to whether the Deputy President's observation in relation to determination of natural ground level remains correct in light of s 29(1).
47 An appeal from the Deputy President's decision to the Supreme Court was dismissed by Miller J: see Zito & Anor v Town of Cottesloe [2005] WASC 80. His Honour agreed that the appeal to TPAT was required to be refused as the proposal exceeded the maximum building height of two storeys. His Honour noted at [31] that it was, therefore, "strictly unnecessary" to deal with other grounds of appeal which related to whether the Tribunal had jurisdiction to determine natural ground level. Although his Honour ultimately dismissed these grounds (at [41]) and referred in passing to City of Cockburn v McNiece Industrial Systems Pty Ltd and Re Minister for Planning; Ex parte City of Canning, he did not consider the terms of s 8A(1) of the TPD Act.
48 The final decision relied on by the City before us was Wayne Brown and Shire of Wyndham-East Kimberley in which Member Connor followed and applied City of Cockburn v McNiece Industrial Systems Pty Ltd and Deepblue Enterprises Pty Ltd v Town of Port Hedland in determining that the classification by the Shire of a proposed use did "not involve the exercise of a discretionary power, was not a decision in respect of the exercise of discretionary power, and was not otherwise covered by s 8A(1)(a) of the [TPD Act]": at [27]. Member Connor concluded that there was no right to seek review in relation to the decision made by the Shire and dismissed the application.
49 As discussed earlier in these reasons, City of Cockburn v McNiece Industrial Systems Pty Ltd is distinguishable as it concerned a now repealed section in different terms to s 8A(1). The Tribunal, as presently constituted, considers that the construction of s 8A(1) adopted by TPAT in Deepblue Enterprises Pty Ltd v Town of Port Hedland was erroneous. In Wayne Brown and Shire of WyndhamEast Kimberley, the Tribunal was constituted by a non-legally qualified member. The Tribunal in that case followed and applied a decision which should not now be followed.
50 Finally, in City of Swan v Taylor [2005] WASCA 88, Johnson J held that "the jurisdiction of [TPAT] is confined to a review of the exercise of a discretionary power and does not extend to reviewing determinations of fact": at [31]. Her Honour considered that "such a conclusion is apparent from the legislative framework alone", although she considered that there was also "considerable authority to support that conclusion": at [31]. Having referred to MMF Holdings Pty Ltd v Town of Claremont (Town Planning Court of WA, Brinsden J, Appeal No 146 of 1977, 13 March 1978, unreported) (which concerned the construction and application of former s 37 of the Act), City of Cockburn v McNiece Industrial Systems Pty Ltd, Buttfield & Ors v City of Albany & Ors and Re Minister for Planning; Ex parte City of Canning, her Honour held at [40] as follows: