State Administrative Tribunal (WA)|2005-11-25|Before: Burt CJ

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 (25 November 2005)

CITATION : THE OWNERS OF STRATA PLAN 18449 and CITY OF JOONDALUP [2005] WASAT 304

Town planning Planning application Change of use from "holiday village/resort" to "multiple dwellings" or "extended stay residential" Preliminary issue Jurisdiction Whether Tribunal has jurisdiction to determine "use class" of a proposed use where responsible authority has categorised use Whether development of land coded "R30" or less for "multiple dwellings" does not "conform to" Residential Design Codes Words and phrases: "conform to"

Bakker and City of Nedlands [2005] WASAT 106

Buttfield & Ors v City of Albany & Anor (2001) 27 SR (WA) 121

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272.

City of Cockburn v McNiece Industrial Systems Pty Ltd & Anor (SCWA, Burt CJ, Library No 5523, 24 September 1984, unreported)

City of Swan v Taylor [2005] WASCA 88

Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32

Federal Commissioner of Taxation v Salenger (1998) 81 ALR 25

Millawa Pty Ltd v City of Swan [2003] WATPAT 78

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24

Randall and Town of Vincent [2005] WASAT 129

Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284

Re Scott and Commissioner for Superannuation (1986) 9 ALD 491

WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194

Wayne Brown and Shire of Wyndham-East Kimberley [2005] WASAT 68

Zito & Anor v Town of Cottesloe [2004] WATPAT 77.

Zito & Anor v Town of Cottesloe [2005] WASC 80

Chehab v City of Canada Bay Council [2002] NSWLEC 220; (2002) 123 LGERA 431

Scouts Australia v Ryde City Council [2002] NSWLEC 56; (2002) 120 LGERA 98

1 The City of Joondalup raised two preliminary issues in the planning review proceedings which the Tribunal formulated as follows:

1. Whether, on the proper construction of s 8A of the Town Planning and Development Act 1928 (WA) (TPD Act), the Tribunal has jurisdiction to categorise the use proposed in a planning application which has been refused or conditionally approved by the responsible authority in circumstances where the responsible authority has categorised the proposed use.

2. Whether development of land coded "R30" or less for the purposes of "multiple dwellings" "conform[s] to" the Residential Design Codes of Western Australia (Codes).

2 The Tribunal determined that the issues were to be answered "yes" and "no", respectively.

3 Section 8A(1) of the TPD Act sets out three conditions which have to be satisfied in order for there to be a right of review. These are:

(i) approval of the application must be in the discretion of the responsible authority under the applicable town planning scheme;

(ii) a person must have applied to the authority for approval; and

(iii) the authority must have refused the application or granted it conditionally.

4 It was open to the Tribunal to categorise a proposed use to determine whether it was in the discretion of the responsible authority to approve it under the applicable scheme and, therefore, to determine whether the Tribunal had jurisdiction to entertain the application for review. The Tribunal also has the power to categorise a use in order to come to the correct and preferable decision on a review within its jurisdiction.

5 Development of multiple dwellings on land coded "R30" or less does not "conform to" the Codes as the Codes do not contemplate the possibility of approval of that dwelling type on that land. Therefore, if the proposed use were categorised by the Tribunal as "multiple dwellings", it was not within the discretion of the City to approve the application and the Tribunal did not have jurisdiction to undertake the review.

6 The City of Joondalup raised two preliminary issues for determination in review proceedings that are pending before the Tribunal. The proceedings involve an application by The Owners of Strata Plan 18449 (the strata company) for review pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) of the City's decision to refuse to grant approval to a planning application. The planning application, as originally submitted to the City, sought approval for a change of use of land from "holiday village/resort" to "multiple dwellings". Subsequently, before it was considered by the City, the strata company amended the planning application to seek approval for a change of use to "extended stay residential".

7 Notwithstanding the strata company's designation of the use it proposed, at its meeting on 15 March 2005, the City determined that the proposed change of use should be categorised as "multiple dwellings" for the purposes of the City of Joondalup District Planning Scheme No 2 (DPS 2 or Scheme). Having categorised the proposed change of use in this way, the City then resolved to refuse the application for the following reasons:

"(a) It would result in the development being classified as Multiple Dwellings under District Planning Scheme No. 2 with a resultant proposed density of R100 which does not comply with the density of R20 designated under District Planning Scheme No. 2;

(b) Approval of the development to a R100 density would be contrary to orderly and proper [planning] for the locality considering the R20 density of the site."

8 The land the subject of the planning application is zoned "Private Clubs/Recreation" under DPS 2. Clause 3.2.1 of the Scheme provides that the Zoning Table "indicates subject to the provisions of the Scheme, the permissibility of use classes within the various zones". The Zoning Table designates the use class "Multiple Dwelling" in the "Private Clubs/Recreation" zone with the symbol "D", which means "a Use Class that is not permitted, but to which the Council may grant its approval after following the procedures laid down by subclause 6.6.2": cl 3.2.2. Clause 6.6.2 provides that "in exercising its discretion as to the approval or refusal of an application for Planning Approval" in relation to a "D" use, the City shall have regard to a number of considerations set out in cl 6.8. The City may also require public notification.

9 Clause 4.2.3 provides that "unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes". Clause 4.2.1 defines the "Residential Planning Codes" as the Codes "set out in Appendix 2 to the Commission's Statement of Planning Policy No. 1, together with any amendments thereto". Clause 4.2.4 relevantly provides that the density coding applicable to land "shall be determined by reference to the legend shown on the Residential Density Codes maps which form part of this Scheme". It is common ground that the land the subject of the application has a density coding of "R20" on the relevant map.

10 In October 2002, the Residential Planning Codes were replaced by the Residential Design Codes of Western Australia (Codes). The parties' respective submissions proceeded on the sensible basis that the term "Residential Planning Codes" in DPS 2 means the Codes. Table 1 of the Codes prescribes general site requirements in relation to each of 18 density codings. In relation to land coded "R30" or less, Table 1 prescribes general site requirements only in relation to dwelling types "single house" or "grouped dwelling". In relation to land coded "R35" or higher, Table 1 prescribes general site requirements for the dwelling types "single house", "grouped dwelling" and "multiple dwelling". The term "multiple dwelling" is defined in cl 2.2 of the Codes (and by incorporation for the purposes of DPS 2: cl 1.9, Sch 1) to mean "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 but does not include a Grouped Dwelling". The term "dwelling" is defined as "a building or portion of a building being used, adapted or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family or not more than six persons who do not comprise a single family".

11 In this context, the City raised two preliminary issues which can be stated as follows:

1. Whether, on the proper construction of s 8A of the TPD Act, the Tribunal has jurisdiction to categorise the use proposed in a planning application which has been refused or conditionally approved by the responsible authority in circumstances where the responsible authority has categorised the proposed use.

2. Whether development of land coded "R30" or less for the purposes of "multiple dwellings" "conform[s] to" the Codes.

12 The preliminary issues were listed for determination entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The proceedings are in respect of a planning application to commence development with a value of less than $250 000. Under s 38(4) of the TPD Act, when dealing with such an application, the Tribunal is to be constituted by an ordinary member sitting alone unless subsection (5) applies. In this case the President formed the opinion under s 38(5) that the application is likely to raise complex or significant planning issues, and listed the determination of the preliminary issues before himself and Senior Member Parry.

13 For reasons set out below, the Tribunal considers that the preliminary issues are to be answered "yes" and "no", respectively.

Preliminary Issue 1 - Does the Tribunal have jurisdiction to categorise a proposed use where the responsible authority has already done so?

14 The City submits that its categorisation of the proposed use as "multiple dwellings" "is a question of fact or law (or a combination of both) and involves no exercise of discretion", and relies on the decisions of the former Town Planning Appeal Tribunal (TPAT) in Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32 and Zito & Anor v Town of Cottesloe [2004] WATPAT 77 and on the decision of this Tribunal in Wayne Brown and Shire of Wyndham-East Kimberley [2005] WASAT 68. The City submits that, accordingly, "as a matter of law there can be no review of the determination of the use class by the Tribunal".

15 The strata company submits that each of the decisions relied on by the City, and the Supreme Court judgment on which they were based (City of Cockburn v McNiece Industrial Systems Pty Ltd & Anor (SCWA, Burt CJ, Library No 5523, 24 September 1984, unreported)), concerned "the law as it stood prior to the introduction of the [SAT Act] or, in the case of [Brown and Shire of Wyndham-East Kimberley], made no reference to the [SAT] Act". It submits that the SAT Act confers jurisdiction on the Tribunal to categorise a land use in planning review proceedings which was not available to TPAT and, prior to the commencement of the Planning Appeals Amendment Act 2002 (WA), to the Minister for Planning. In particular, the strata company relies on s 29(1) of the SAT Act which provides as follows:

"The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision."

16 In reply, the City contends that s 29 does not change the long established position "that section 8A [of the TPD Act] confers no jurisdiction to review a decision as to the application of a town planning scheme that does not involve the exercise of discretion", because the section "applies only to matters being dealt with by the Tribunal 'in the exercise of its review jurisdiction'". Under the terms of s 8A of the TPD Act, "the review jurisdiction of the Tribunal is confined to discretionary decisions under town planning schemes".

17 Section 8A of the TPD Act provides as follows:

"(1) Subject to this section, if

(a) under a town planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of the responsible authority;

(b) a person has applied to the authority for such a grant; and

(c) the authority has refused the application or has granted it subject to any condition,

the applicant may apply to the State Administrative Tribunal for a review, in accordance with Part V, of the responsible authority's decision.

(2) Subsection (1) does not affect the operation of a right given or taken to be given by a town planning scheme to apply for a review of a decision; but, where rights are given or taken to be given by a scheme and under subsection (1), the exercise of one of those rights extinguishes the other right to apply for a review of the same decision."

18 Section 8A(1) of the Act sets out the following three conditions which must be satisfied in order for an applicant to have a right to seek review of a responsible authority's decision in relation to a planning application:

(i) Paragraph (a) requires that the grant of the consent, permission, approval or other authorisation (approval) sought by the applicant must be in the discretion of the responsible authority under a town planning scheme;

(ii) Paragraph (b) requires that a person must have applied to the responsible authority for the grant of the approval; and

(iii) Paragraph (c) requires that the authority must have refused the application or granted it subject to one or more conditions.

19 Section 8A(1)(a) does not say that a determination by a responsible authority that it does not have discretion to grant approval under a town planning scheme, because of the way it has categorised the use, is determinative of the issue. The first condition is simply that approval is in the discretion of the responsible authority under a town planning scheme. This is a question of fact or a mixed question of fact and law which is able to be determined by the Tribunal as a jurisdictional issue in review proceedings. Depending on the extent of evidence required for the determination of this issue and what other issues are identified in the proceedings, it may or may not be most expeditious and cost-effective to determine the issue as a preliminary question.

20 An applicant who applies to a responsible authority for the grant of a planning approval under a town planning scheme necessarily, although perhaps implicitly, contends that the authority has discretion to approve the application.

21 The City's submissions misconstrue the meaning of s 8A(1) of the Act; in particular, the meaning of the words "a review ... of the responsible authority's decision". Read in the context of the section as a whole, and in particular the reference to "the application" in par (c), the words "the responsible authority's decision" refer to the decision to refuse the application or to grant it subject to one or more conditions. They are not a reference to a determination by the responsible authority as to how to categorise the proposed use in the planning application, even though it might have categorised the use in making its decision to refuse the application and might have referred to the categorisation or the consequence under the scheme of the categorisation as a reason for making its decision. The relevant "decision" is the decision to refuse or to conditionally approve an application, whatever the reasoning for that decision might be.

22 Moreover, the "review" for which an applicant may apply to the Tribunal under s 8A(1) is of the decision to refuse the application or to grant it conditionally, not the categorisation of a proposed use by the responsible authority or the authority's express reasons for its decision.

23 However, it may be necessary in undertaking a review of the responsible authority's decision to refuse or to conditionally grant planning approval for the Tribunal to categorise the proposed use. It will certainly be necessary for it to do so as a jurisdictional issue where the authority contends that the grant of the approval sought by the applicant is not within its discretion under the relevant scheme.

24 On a literal interpretation of the wording of s 8A(1) of the TPD Act, therefore, the answer to the first preliminary issue is "yes". The Tribunal has jurisdiction to categorise the use proposed in a planning application in circumstances where the responsible authority has categorised the proposed use. Although the section is headed "Review of exercise of discretionary power under a scheme", s 32(2) of the Interpretation Act 1984 (WA) provides that "a heading to a section ... of a written law ... shall be taken not to be part of the written law". The natural and ordinary meaning of the words used in the section itself do not restrict a review by the Tribunal to circumstances where a responsible authority has determined that it has discretion to approve an application and has exercised that discretion to refuse it or to approve it conditionally.

25 A purposive interpretation of s 8A(1) under s 18 of the Interpretation Act 1984 arrives at the same result. The evident purpose or object of the section is to confer a right to seek administrative review of a responsible authority's decision to refuse an application or to grant conditional approval to it by an independent review tribunal. The literal interpretation of s 8A(1) would promote that purpose or object. In contrast, the interpretation advocated by the City would have the opposite effect; it would confer on a responsible authority the power to, in effect, "veto" independent administrative review of its decision even though that decision was based on an incorrect categorisation of a proposed use. Although, even if the City's proposed construction were correct, an applicant would have the right to seek judicial review of the authority's classification determination before the Supreme Court, such review is of an entirely different character and is not a substitute for administrative review: Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24. Whereas judicial review is substantially concerned with the process of making an administration decision, s 27(2) of the SAT Act provides that "the purpose of the review [by the Tribunal] is to produce the correct and preferable decision at the time of the decision upon the review".

26 The interpretation of s 8A(1) arrived at by the Tribunal does not affect the primary position of the responsible authority as the original decisionmaker. The Tribunal cannot consider an application which was not put to to the responsible authority: SAT Act s 29(9); Randall and Town of Vincent [2005] WASAT 129 at [72]; Bakker and City of Nedlands [2005] WASAT 106 at [53]. As a practical matter, s 31(1) of the SAT Act permits the Tribunal, at any stage of a review of a reviewable decision, to invite the original decisionmaker to reconsider its decision. In any case where the decisionmaker has incorrectly determined that it does not have discretion to approve the application and, therefore, failed to turn its mind to the merits of the application, the Tribunal could refer the application to the decision-maker under s 31(1) for consideration on the merits. Moreover, as the review of a reviewable decision is by way of a hearing de novo (or anew) (SAT Act s 27(1)), a decisionmaker which has incorrectly determined that the grant of planning approval is not in its discretion under a town planning scheme can identify and pursue issues of planning discretion in review proceedings irrespective of its reasons for refusal or conditional approval of the application.

27 Section 29(1) of the SAT Act also confers power on the Tribunal to determine for itself the proper categorisation of a use proposed in a planning application. In WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194, the Tribunal held at [41] that the determination of whether a power is conferred on the Tribunal under s 29(1) requires a two stage inquiry:

(ii) Whether the function of the City to determine whether it has discretion to grant approval to the planning application was exercisable by it in making the reviewable decision.

28 A "reviewable decision" is a decision of an original decisionmaker which the Tribunal has jurisdiction to review: SAT Act s 17. The "reviewable decision" in this case is the City's determination of the planning application by refusal. The City's function of determining whether it has discretion to approve the planning application was exercisable by it in making the reviewable decision.

29 However, it is to be noted that s 5 of the SAT Act provides that if there is any inconsistency between that Act and an enabling Act, such as the TPD Act, the enabling Act prevails. Therefore, if s 8A had the effect contended by the City (which we have found it does not) then s 29 of the SAT Act would not confer jurisdiction on the Tribunal to categorise the proposed use for the purposes of DPS 2.

30 On careful analysis, the three decisions relied on by the City and other decisions in the same line of authority do not dictate a different result from the construction arrived at on a literal and purposive approach in these reasons. As noted earlier, the City relied on Deepblue Enterprises Pty Ltd v Town of Port Hedland and Zito & Anor v Town of Cottesloe (both decisions of TPAT) and Wayne Brown and Shire of Wyndham-East Kimberley (a decision of this Tribunal). Each of these decisions was ultimately premised on the judgment of Burt CJ in City of Cockburn v McNiece Industrial Systems Pty Ltd & Anor. That judgment has also been applied or referred to in three other decisions of the Supreme Court. The Tribunal is conscious that it is bound by any decision of the Full Court or the Court of Appeal which is directly in point: Federal Commissioner of Taxation v Salenger (1998) 81 ALR 25 at 34. While, as presently constituted, the Tribunal is not bound to follow a decision of a single Judge of the Supreme Court, comity and consistency require that any decision which is in point should be followed unless the Tribunal considers that it is clearly wrong. However, it appears that the ratio of each of these Supreme Court decisions concerned the interpretation and application of a differently worded statutory provision.

31 For reasons of comity and consistency, a member of SAT should also generally follow a decision of another member of the Tribunal (or a member of a former Tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499. However, as the President is a judicial member and may review a decision of a non-legally qualified member on a question of law under s 66 of the TPD Act, the Tribunal constituted by or comprising the President may depart from a decision of a non-legally qualified member or indeed a legally qualified member on a question of law. The President may in this way provide appropriate guidance to the Tribunal on questions of law, subject to any further guidance the Court of Appeal may give from time to time.

32 In City of Cockburn v McNiece Industrial Systems Pty Ltd the appellant City sought a writ of prohibition to prevent the Minister for Planning from hearing and determining an appeal instituted by McNiece against the City's decision to refuse consent to the commencement of development. The City was of the opinion that the proposed development constituted a "noxious industry" within the meaning of the applicable town planning scheme. Under the scheme, the use of the land for the establishment of a "noxious industry" was not permitted. The planning application was refused by the City on that basis.

33 This decision turned on the proper construction and application of a part of the definition of the term "appeal" which was then contained in s 37 of the TPD Act. The relevant part of the definition was in the following terms:

"'Appeal' means

(a) an appeal to the Minister under

(i) a town planning scheme that has effect under section 7, if the appeal is in respect of the exercise of a discretionary power by the responsible authority under the scheme; ... "

34 Burt CJ held that, on the assumption that the City had not misunderstood the meaning of "noxious industry" under the scheme, "then its decision was correct and it was a decision which did not involve the exercise of any discretion and the appeal subsequently made by [sic] the Minister is not an appeal 'in respect of the exercise of a discretionary power' within the meaning of s.37 of the Act and no appeal lies to the Minister from it".

35 This definition of the term "appeal" in s 37 of the Act was repealed together with the rest of Part V by s 11 of the Planning Appeals Amendment Act 2002 (WA) with effect from 18 April 2003. The new Part V of the Act inserted by the Planning Appeals Amendment Act did not contain an equivalent definition. However, many town planning schemes which were prepared and gazetted prior to the repeal of s 37, and which remain in force, use equivalent terminology to that section in conferring a right to appeal (or review: TPD Act s 36(2)) a decision of a responsible authority. For example, cl 8.4 of DPS 2 confers a right to seek review of a decision given by the City "on the exercise of a discretionary power under the Scheme". As is apparent from s 8A(2), s 8A(1) does not affect the operation of a review right given by a town planning scheme, although the exercise of one review right extinguishes the other in relation to the same decision. As noted earlier in these reasons, the application for review in this case was made under s 8A(1) of the Act rather than under a right conferred by DPS 2.

36 In Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284, the City of Canning sought prohibition against the Minister to preclude him from considering and determining a planning appeal against the decision of the City to refuse to grant planning approval for the development of land as a "health centre incorporating medical consulting rooms and a pharmacy". In the relevant zone, use of land as a "health centre" was "not permitted unless approval was granted by the council". However, under the scheme, a pharmacy was a "shop" which was a use "not permitted unless it is determined by the council to be incidental to a use determined by the council to be the predominant use and is approved as such by the council".

37 The application for development approval was refused by the City for reasons including that "the pharmacy is not considered ... to constitute an incidental use to the medical complex ... ". The question before the Court was whether the developer had a right of appeal to the Minister from the City's decision to refuse the application. The Court determined that the question of whether or not the pharmacy use was incidental to the medical complex use was a question of fact and degree, and was not a "discretionary decision". Nonetheless, the appeal to the Minister was competent, because the decision to refuse approval to a health centre was made in the exercise of a discretionary judgment: at 288 (Kennedy J); at 288 289 and 290 291 (Murray J); at 295 (Anderson J).

38 However, it is apparent that although s 8A(1) formed part of the TPD Act at the date of the Court's decision and was in substantially the same terms as it is currently, the Court's decision was not concerned with the interpretation and application of that section, but rather turned on the definition of "appeal" in s 37 and the clause of the town planning scheme which conferred a right of appeal for the purposes of that definition: see 287 (Kennedy J); 292 294 (Murray J). That scheme clause conferred a right of appeal on a person who was "aggrieved by a decision of the Council exercising a discretionary power under the Scheme".

39 In the course of his judgment, Murray J set out the terms of s 8A(1) and noted that he had "raised the question whether the wording of that section would provide a wider right of appeal in this case than would [the relevant provision] of the scheme": at 292. His Honour set out the general terms of an argument that, in the circumstances of that case, the grant or refusal or conditioning of approval of the application for development approval before the City "was clearly overall 'in the discretion of' the council". As the application had been made to the City and had been refused by it, "the right of appeal which was thereby conferred by the Act, section 8A(1), would be against the whole of the decision". His Honour considered that, on this argument, "the Minister would have jurisdiction to hear and determine the whole of the appeal and he would not be restricted to a consideration only of those aspects of council's decision which, in themselves, involve the exercise of a discretion". However, his Honour noted that as the proposition did not attract the support of the parties and was not fully argued, "the resolution of the question of the ambit of the right of appeal conferred by section 8A(1) of the Act should await another day". His Honour's observations highlight the point that the ratio of the Court's decision was concerned with the expression "exercise of a discretionary power" in the now repealed s 37 and a correspondingly worded town planning scheme provision. The determination of the proper construction and application of s 8A(1) remained open following the Supreme Court's decision.

40 Buttfield & Ors v City of Albany & Anor (2001) 27 SR (WA) 121 was a third party appeal to the predecessor of TPAT against a decision of the City of Albany to grant planning approval for firewood cutting and storage. In its assessment of the application, the City took a twostep approach. First, it categorised the proposed use as falling within a particular use class under the town planning scheme. Second, it determined whether that use should be permitted and, if so, subject to what conditions. The Tribunal applied City of Cockburn v McNiece Industrial Systems Pty Ltd and determined that "the decision by the [City] to categorise the proposed use of the land as a rural industry under the scheme did not involve the exercise of a discretionary power". It held that "the jurisdiction of this Tribunal is limited to circumstances which involve the exercise of discretionary power": at [13].

41 However, it is apparent from the former Tribunal's decision at [3] that the appellants sought to commence the appeal, not under s 8A(1) of the Act (no doubt because that section does not confer third party rights), but rather under a provision of the town planning scheme which was in the following terms:

"A person aggrieved by a decision of the Council in the exercise of discretionary powers conferred on it by the Scheme, may appeal in accordance with Part V of the Town Planning and Development Act."

42 As noted earlier, before us the City relied on the decision of TPAT in Deepblue Enterprises Pty Ltd v Town of Port Hedland. In that decision, TPAT held in terms that s 8A(1) conferred only the same jurisdiction on that Tribunal as provisions of town planning schemes which conferred rights of appeal restricted to the "exercise of a discretionary power under the scheme". The Tribunal observed and held at [25] [26] as follows:

"Counsel for the Appellant sought to contend that section 8A(1)(a) of the Act in effect gave some different or other right to the Appellant than would have otherwise been the case under either clause 9.6 TPS 5 or Section 47(1) of the Act [which at that time provided that a person could appeal to TPAT if a right to appeal was conferred by, among other things, 'any town planning scheme in force under this Act'].

We agree with the analysis offered by Counsel for the Respondent in response. The argument advanced by the Appellant seems in many respects to assume the matter with which we are concerned is the exercise of a discretionary power or even the exercise of a discretion. The short point is that once Council has made a classification of use and that use is not permitted then there is no discretion to be addressed. To get [to] the discretion part of the role played by the Respondent [it] would be necessary to set aside the Respondent's decision about the characterisation of use. That is not a means by which section 8A(1)(a) aids the Appellant nor is it a means by which directly or indirectly this Tribunal's jurisdiction would be enlarged."

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:

"Thus, the law on the subject is clear. An appeal lies to the Tribunal only in relation to the exercise of a discretionary judgment. Mere questions of fact and degree are not properly the subject of an appeal. This conclusion creates a difficulty for the appellant."

51 Although Johnson J did not set out the terms of s 8A(1) of the TPD Act, her Honour did refer to it at [29] in the following terms:

"The only other section of the ... Act which confers a right to appeal decisions made pursuant to town planning schemes, limits the right to appeal to decisions involving the exercise of a discretion by the responsible authority: s 8A of the ... Act."

52 In the next paragraph of the decision, her Honour set out a clause of the applicable town planning scheme which conferred a right of appeal where an applicant was aggrieved "by a decision of the Council exercising a discretionary power under the Scheme": at [30].

53 It appears from her Honour's decision at [62] [63] that the appeal to the TPAT was commenced under the provision of the town planning scheme, rather than under s 8A(1) of the Act, as her Honour expressly refers to the town planning scheme provision in expressing her conclusions. Therefore, it appears that although strongly expressed, her Honour's observation in relation to s 8A, at [29], was strictly obiter. In consequence and as the decision did not contain any further analysis of s 8A(1) beyond the quoted paragraph, we would not apply her Honour's interpretation of the section.

54 The answer to the first preliminary issue identified at [11] above is "yes". On the proper construction of s 8A of the Act, the Tribunal has jurisdiction to categorise a proposed land use for the purposes of the applicable town planning scheme.

Preliminary Issue 2 - Does development of land coded "R30" or less for multiple dwellings "conform to" the Codes?

55 The City submits that the discretion to approve "multiple dwellings" in the "Private Clubs/Recreation" zone under cl 3.2.1 and cl 6.2.2 of DPS 2 is controlled by the mandatory requirement in cl 4.2.3 of the Scheme that such development "shall conform to the provisions of [the] Codes". A residential use will not "conform" to the Codes unless it meets the requirements specified in the Codes. The proposed development does not conform to the requirements of the Codes, because it involves the use of "R20" coded land for multiple dwellings. Alternatively, on its proper construction, the Codes prohibit multiple dwellings on land with a density coding of "R20".

56 The strata company submits that conformity does not require an identical form, but rather embodies a concept of similarity. It contends that conformity is a question of fact and degree not limited to one or more individual elements such as the relevant coding attached to the land.

57 The term "conform to" is not defined in DPS 2 or in the Codes. The verb "conform" is relevantly defined in The Macquarie Dictionary (Revised Third Edition, page 409) as "(sometimes followed by to) to act in accord or harmony; comply". On this definition, cl 4.2.3 requires that any development for residential purposes be in accordance with, or comply with, the provisions of the Codes.

58 Contrary to the strata company's submission, a proposed residential development would not "conform to" the provisions of the Codes where it does not accord or comply with any applicable provision of the Codes: Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [53], [66] and [72]. To adopt the approach suggested by the strata company would largely render ineffective the prescriptive intent of the Codes.

59 Table 1 of the Codes clearly contemplates that multiple dwellings may not occur on land coded "R30" or less as no site requirements are specified in relation to that dwelling type on land with that coding. The primary aim of planning is "to provide for the fair, orderly, economic and sustainable use and development of land": Statement of Planning Policy No 1 cl A1. Plainly, if the Codes contemplated that development of multiple dwellings was possible in the low density coding of "R30" or less, site requirements would be specified in the interests of proper and orderly planning. Indeed, facilitating appropriate multiple dwelling development in a low density context would require very careful planning consideration if it were possible at all.

60 This interpretation of Table 1 is reinforced by the explanatory text under the heading "Restricted Coding" on page 9 of the Codes. The text states that "the assignment of a particular code to a given area will normally mean that all the varying housing types included in that code under Table 1 will be permissible within that area". The clear implication from this text is that a housing type which is not included in that code under Table 1 will not be permissible within that area. Moreover, the text states that a council may wish to secure a given density without the full range of housing types permissible under the relevant density code. It gives the example of an area containing lots of 1000 square metres occupied by single houses. If a council wishes to allow for some increase in residential density but retain the single house appearance and character of the area, the text suggests that the area could be coded "R25" and a clause inserted into the town planning scheme stating that, in a defined area, a single house or grouped dwelling may not be constructed unless it has a particular nominated frontage to a street. The example given in the text clearly contemplates that multiple dwellings are not permitted in the "R25" coding as there is not considered to be a need to exclude such development by means of a restricted coding provision in the scheme text.

61 Although the Zoning Table of DPS 2 identifies the use class of multiple dwellings as a use to which the City may grant its approval, cl 3.2.1 states that the Zoning Table indicates the permissibility of use classes "subject to the provisions of the Scheme". Clause 4.2.3 is, in consequence of the provisions of the Codes, a provision of the Scheme which relevantly qualifies the permissibility of development for multiple dwellings on land coded "R30" or less.

62 In consequence, if the proposed use were categorised as "multiple dwellings" for the purpose of DPS 2, the development would not "conform to" the provisions of the Codes. The answer to the second preliminary issue identified at [11] above is "no".

63 The result is that if the Tribunal were, like the City, to categorise the proposed use as "multiple dwellings", approval of the application is not within the discretion of the decision-maker under DPS 2 and the Tribunal would be obliged to decline to consider the strata company's application for review of the City's refusal of planning approval. If that were the case, the application to the Tribunal would be dismissed.

1. The preliminary issues identified at par [11] of the Tribunal's reasons for decision dated 25 November 2005 are answered as follows:

2. The proceedings are listed for directions before the Deputy President at 9.30am on 2 December 2005.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT

Appeals Amendment Act 2002

Planning and Development Act 1928

Administrative Tribunal Act 2004

(1998) 101 LGERA 284

(2002) 123 LGERA 431

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 (25 November 2005)

At a glance

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Judgment (67 paragraphs)

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 (25 November 2005)

Legislation Cited (3)

Cases Cited (5)