Certiorari and prohibition - Town planning - Grant of application for development approval - Large water mains beneath subject land - Failure to consider objections by Water Corporation - Structure Plan - Public reserve over pipeline corridor - Whether reserve subject to Structure Plan - Interest of Water Authority in pipeline and in corridor reserve - City of Canning: Town Planning Scheme No 40 - Proper planning considerations

Interpretation Act 1984, s 18

Local Government Act 1995

Metropolitan Water Supply Sewerage and Drainage Act 1909, s 50A

Rules of the Supreme Court 1971 (WA), O 60 r 1(b)

Water Boards Act 1904, s 46

First Respondent : Mr P L Wittkuhn (Mr G Owen appearing on morning of 29 April 2005)

Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41; (1967) 120 CLR 118

Envestra Ltd v Port Adelaide Enfield [2003] SASC 171; (2003) 86 SASR 155

Newcastle-under-Lyme Corporation v Wolstanton Ltd [1947] Ch 427

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490

Bonton Pty Ltd v City of South Perth [1982] WAR 213

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Department of Conservation and Land Management (1997) 18 WAR 126

Carcione Nominees Pty Ltd & Anor v Western Australian Planning Commission [2005] WASCA 56

Centro Properties Limited v Hurtsville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257

Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42; (1986) 161 CLR 47

Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161

Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446

Flynn v Shire of Berwick [1974] VPA 344

Greenberg v Sydney City Council (1958) 3 LGRA 223

Hale v Parramatta City Council (1982) 47 LGRA 269

Hill v Woollahra Municipal Council (2003) 127 LGERA 7

Hooper v Lucas (1990) 71 LGRA 27

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142

Makucha v Albert Shire Council (No 2) (1993) 81 LGERA 250

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

Parramatta City Council v Hale (1982) 47 LGRA 319

R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22

Re City of Perth; Ex parte Lord [2002] WASCA 254

Re Minister for Local Government; Ex parte the Buddhist Society of Western Australia (Inc) [2001] WASCA 380

Re Smith, Ex parte Rundle (1992) 5 WAR 295

Re Warden Boothman; Ex parte Peko Exploration Ltd, unreported; SCt of WA; Library No 970613; 14 November 1997

Renstone Nominees Pty Ltd v Metropolitan Region Planning Authority (1986) 21 APA 12

Somerville v Dalby (1990) 69 LGRA 422

South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161

Squarcini & Anor v State Planning Commission, unreported; SCt of WA (Scott J); Library No 960200; 17 April 1996

Tobacco Institute of Australia v National Health & Medical Research Council [1996] FCA 1150; (1996) 71 FCR 265

TVW Enterprises Ltd v Duffy & Ors (No2) (1985) 7 FCR 172

Wardley Aust Ltd v Attorney-General of Western Australia (1991) 5 WAR 453

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 211 ALR 472

1 EM HEENAN J: There is before the court what is said to be the return of an order nisi for the issue of writs of certiorari and prohibition to quash certain decisions made by the City of Canning involving the grant of a development approval for the construction of dwellings on five lots of land within its municipality.

2 This application for an order nisi came before a Master of this Court sitting in Chambers on 6 December 2004, at a time when, because of the pressure of business a large amount of the Chamber's work usually performed by Judges was being performed by Masters. There is some question over whether or not there was a specific allocation of this matter to the Master's jurisdiction as would be required for the Master to exercise power under O 60 r 1(b) of the Supreme Court Rules. Nevertheless, I am assured by counsel and accept that after hearing submissions the learned Master decided to grant an order nisi and left the matter on the basis that the parties would submit an agreed minute, or a minute for settling by the court, which would incorporate the final terms.

3 A minute was in due course submitted by counsel for the applicants and that was followed up in some correspondence with the registry, but for reasons which do not appear, but no doubt do have some explanation, the order was never settled in a final form, nor was it extracted. There is no record among the formal documents of the court of an order nisi ever being made, except for a manuscript note of the Master's fiat.

4 One of the issues of contention before the learned Master at that stage of the application for an order nisi was whether or not any order nisi which might issue should be made returnable before a single Judge or before the Full Court. Counsel for the first respondent, the City of Canning, pressed for the matter to be made returnable before the Court of Appeal - Civil in view of the importance of the issues and the provisions in the Rules of Court providing that that is the normal case except in matters of urgency. Yet the learned Master evidently decided that, in view of the urgency associated with this matter, it should be made returnable before a single Judge.

5 Hence, the matter came on for hearing before me after extensive affidavits had been filed by all parties, detailed written submissions had been prepared and filed and counsel were retained and instructed to make detailed submissions. At the beginning of the hearing some issue arose as to whether or not I should treat the application as if an order nisi had been made, as it appears it had been made, or whether I should treat the matter afresh. It seems to me that, as a matter of caution, it is preferable for me to reconsider the matter entirely as if it were an application for an order nisi in the first instance, particularly in view of the concurrent application being made by the applicant to amend the terms of the order nisi thought to have been issued.

6 I am satisfied, for reasons which will emerge later in this judgment, that there is a strong arguable case to examine the decisions made by the City of Canning in this respect and that an order nisi should issue. To the extent that this may already have been decided by the learned Master that is a decision which I entirely endorse.

7 I will, however, order and direct that an order nisi for certiorari and prohibition, in the terms of the minute of order nisi as proposed to be amended by the applicants' chamber summons of 19 April 2005 should issue. I have also treated the present proceedings as requiring a consideration of whether or not an order nisi in those terms should now be made absolute. In doing so I have considered the submissions maintained by the first respondent, under instructions, that the City of Canning would prefer this matter to go before the Court of Appeal as originally maintained. However, having regard to the fact that four months have elapsed due to what appears to be some misunderstanding about the procedural steps which have been followed and also because detailed affidavits have now been filed; counsel have been fully instructed and have made full submissions, and because of the urgency, I consider that I should determine the matter rather than order that it should be heard by the Court of Appeal - Civil which would only involve further delay and expense.

8 I have considerable sympathy for the submissions made on behalf of the City of Canning that a matter of this importance should, all other things being equal, be heard by the Court of Appeal, but there is no prospect of the matter being brought before the Court of Appeal in the immediate future, and if I proceed to deal with this matter and any party is aggrieved by my decision then that party will have an unrestricted right of appeal and will thus be able to bring the matter before the Court of Appeal no later than if I were simply to refer the matter to the Court of Appeal. For that reason I shall proceed to deal with the substance of the issues which have been argued before me. They involve some initial preliminary explanation as to the background.

9 The City of Canning, a municipality under the Local Government Act 1995 has a Town Planning Scheme, Number 40, applying to certain land within its municipality. Details of some of the areas covered by Town Planning Scheme Number 40 are in a plan or diagram which can be found at pages 123 to 125 of the affidavit of Mr Todd sworn 22 November 2004. Generally speaking, this land is in the south-eastern corridor on the outer margins of residential development in Perth, south of the Gosnells/Kelmscott area.

10 Within the area of the Town Plan there is a portion of land which has been referred to, somewhat informally, in the documents and by the parties as the "Randford Estate", presumably as a reference to the former owners of this outer metropolitan rural land which, over recent times, has been found to be suitable for subdivision for residential and other associated uses.

11 This particular area, the Randford Estate, can be found within a quadrilateral, referred to by the parties as a "diamond", bounded by Nicholson Road, Clifton Road, Wilfred Road and Randford Road. Within the perimeters of that diamond there is land covered by a Structure Plan, which was prepared in accordance with the City of Canning Town Planning Scheme Number 40 and which is part of the documents associated with the Town Planning Scheme. There is an issue in these proceedings as to whether that Structure Plan covers or applies to all the land within the diagram, the contentious question being whether or not it applies to what I shall call "the utilities corridor" which runs generally north-south from the apex of the intersection of Nicholson and Clifton Roads in the south to just west of the apex of the intersection of Randford and Wilfred Roads in the north. This is shown in a mustard-coloured hatched manner on the Town Planning Scheme referred to in Mr Todd's affidavit already quoted.

12 I shall defer further attention to that controversy for the moment. What is plain, however, is that this utilities corridor is a reserve within the terms of the Town Planning Scheme and, if it applies, the Structure Plan. It is a reserve of a kind referred to in Pt 2 of the Town Planning Scheme and, in particular, it is a local authority reservation. The evidence indicates that it was reserved for public purposes. The most obvious original public purpose for which this land was reserved was the preservation of two large subterranean water mains which run the length of the corridor and much further beyond, both to the north and to the south. These are large-diameter high-pressure water mains which were installed in the area at some time between approximately 1959 and 1965, although the precise dates are not material. I have been informed that they carry water from the Serpentine Dam and irrigation works to distribution points further north in the metropolitan area.

13 Despite the fact that those important water mains run beneath this land and that the corridor is the subject of a regional reserve, and quite surprisingly in that setting, the ownership of most of the corridor remains with the land owner, the second respondent, who acquired the Randford Estate and then subsequently undertook the subdivision and development which is depicted within the structure plan. When I say most of the utilities corridor remains in the ownership of that land owner, I exclude a number, perhaps half a dozen, relatively small crossing points which were the routes of earlier roadways, most of which seem to have disappeared in the subsequent subdivision and redevelopment. At the time of the subdivision the title to the lands comprising those road crossings was transferred to the Water Corporation in the belief (mistaken at the time but an enduring mistake which has bedeviled much of the history of the events which led to this litigation), that the Water Corporation or its predecessors owned the utilities corridor. So relatively small parts of the corridor, insignificant for the outcome of the present application, are owned by the Water Corporation. The remainder continues in the ownership of the former proprietor of the surrounding land, the second respondent.

14 A little more needs to be said about this pipeline and the corridor. When installed in 1959 or 1965 or whenever it was, the pipeline was constructed pursuant to powers available to the then water authority under the Water Boards Act 1904. Some of those powers can be found in Pt III of the Water Boards Act 1904. In particular s 39 of that Act provided that:

"The whole of the works [including laying the pipes of this character - see definition in s 4] and all water which at any time is in any reservoir, pipe or other part of the works, under the control of the Water Board, and all moneys received by it under the authority of this Act, shall be the property of the Water Board, and shall be used by it for the purposes of the Act."

15 It follows that the two subterranean pipelines at all times remained the property of the applicant or its statutory predecessor. This is somewhat inconsistent with the position of the parties, who maintain that the Water Corporation has no proprietary interest in the corridor, excluding of course those small crossings, which I have already referred to and which were transferred to it at the time of subdivision. It seems to me that by virtue of s 39 of the Water Boards Act (1904) the Water Corporation plainly has a species of property in the pipeline and rights of access to it which may qualify for some form of statutory easement or, if not, are tantamount to an easement - see Windeyer J in Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41; (1967) 120 CLR 118 at 131 - 134.

16 The location of this pipeline long pre-dated the expansion of the metropolitan area for residential purposes in these environs but when it became apparent that major redevelopment, including residential development, in the area was suitable, the Town Planning Scheme Number 40 made provision for this reservation, as I have already described. But some time later a gas main was laid along the western edge of most of this corridor by a different power and utility authority. In relation to the gas main, an actual easement was sought and granted in favour of the gas authority. It is outside, immediately adjacent to, the reserve. When the subdivisional application for the Randford Estate was approved, one of the considerations which received attention was the necessity, as in all residential subdivisions, for the landowner/developer to cede portions of the land for public open space within or adjacent to the area developed.

17 At the time this issue was under consideration, the local authority, the Water Corporation and other relevant authorities still laboured under the mistaken apprehension that the land which was the subject of the reserve over the corridor, was vested in the Water Corporation and had passed out of private ownership. That perhaps explains why there was no condition imposed on the grant of subdivision that the private landowner should cede to the Corporation or to any other public body all its estate or interest in the corridor land, which might otherwise have been expected to be required.

18 However, under this misapprehension as I have described it, the local authority and the State Planning Commission accepted that part of the area of the corridor could be treated as a credit towards the landowner/developer's contribution to public open space required by the subdivision. Something in the order of 50 per cent of the aggregate area of the corridor was credited for this purpose.

19 The result was that the corridor from then on and now, served several purposes. It remained as a reserve under which these important water mains ran and significantly, by being reserved land, permitted access by the Water Corporation to the main for maintenance or repairs or to give access if there was any disruption to the supply, breakdown or bursting, which might threaten the area. But as well, it provided a domain of open space that would benefit all the developments in the area which, as I have said, were mainly residential.

20 The designation of the purpose of the reserve was for public purposes. That is the situation which remained until the second respondent, the landowner, came to appreciate that it retained freehold title, except for the subterranean water mains, in all the corridor except for those parts which had been transferred because they comprised old road crossings.

21 With this new realisation, the second respondent naturally turned its intention to what use could be made of the land which it, unexpectedly, had retained. A series of negotiations were entered into with the Water Corporation, inviting the Corporation to purchase or acquire the land for the preservation of access to the water main and for other purposes associated with its maintenance. At first, there were encouraging signs that the Water Corporation might exercise its power to purchase or to acquire the land, in either event providing money or compensation to the second respondent for the value of the land acquired.

22 However, those initiatives died on the vine and when it became apparent there was likely to be no response from the Water Corporation in that regard, the second respondent adopted another expedient. It applied for development approval for proposed lots within the corridor, the development approval being for the construction of residential dwellings. A detailed application was prepared and submitted. This is what I will call the 2003 application.

23 It came under consideration by officers of the City of Canning and, as they were obliged to do under the Town Planning Scheme, they gave notice of the application and conferred with the Water Corporation about it. The application resulted in opposition from the Water Corporation which, for reasons which must be obvious, desired to maintain unimpaired access to the entire route of the pipelines and put forward submissions to the effect that building of residences over or adjacent to the pipelines would impede that access and might result in adverse consequences to the buildings, their inhabitants and to other persons in the vicinity in the event of a bursting pipeline. Those objections and the response of the officers of the Council were assimilated and passed through the decision-making process in the City of Canning. The applications for development approval were approved by the Council, notwithstanding the objections of the Water Corporation.

24 However, at that time, it was thought that, because the corridor was within the area of the Structure Plan and because the proposed development involved a use of the corridor not contemplated by the Structure Plan, it was essential before approval could be regarded as effective, for the matter to be referred to the State Planning Commission under the terms of the Town Planning Scheme and for the State Planning Commission to approve the departure from the Structure Plan. This was put to the Planning Commission but their assent was not forthcoming and hence the application was refused.

25 Time went by and, perhaps enlivened by a different strategy, the second respondent made subsequent applications for development approval for more residences within the corridor. There were two applications. The first was for four new lots, which were to be part of lot 191, and the second was for one lot, which was to be part of lot 194. The first application for approval, involving four proposed lots, came up for consideration and was approved by the City of Canning, at a meeting attended by eight councillors including the mayor, on 24 August 2004. The minutes of that meeting are to be found at page 161 of the affidavit of Mr Todd.

26 The application for the fifth development approval came before the Council of the City of Canning on 28 September 2005 and was also approved. The minutes and the resolution relating to that approval are to be found at pages 171 to 175 of the affidavit of Mr Todd. As with the earlier applications, the City of Canning had intimated to the Water Corporation that these applications had been made and had invited submissions or a process of conferral. In relation to the first four applications, a letter of objection was received, but was not passed on to the members of the Council who considered the application. Nevertheless, the papers indicate that the members of the Council were informed, by their briefing process and by a report prepared for them, that the Water Corporation had objected in the past to use of land within the corridor, but that on this occasion no submission had been received from the Water Corporation. That statement that no submission had been received was wrong. Indeed, there had been one, and the members of the Council did not hear of it. But the meeting purported to address the known objections of the Water Corporation as they had arisen from the consideration of the 2003 application. A similar process occurred in relation to the approval by the Council for the fifth lot, part of lot 191, except that in this case a letter of objection from the Water Corporation was made known.

27 In the papers before the Council relating to the decision to approve and grant the development applications for the first four lots, there is the following passage in the report which addresses, in particular, the significance of these water mains and the apprehended opposition from the Water Corporation. I quote:

"The matter of State and regional significance is the Serpentine trunk main. No submission has been received from the Water Corporation however. The Water Corporation's position on the development in the area reserved for public purposes is known from its submission on the earlier application for lots 174 and 175 Wilfred Road."

"The Water Corporation has indicated that it has operational considerations that require that the main not be built near. Council must give due consideration to this. However, it must be balanced against other orderly and proper planning considerations including fairness to the applicant. On the one hand, the effect of the Water Corporation's position would be to sterilise development on the site. On the other hand, the Water Corporation does not presently have any proprietary interest in the land either as owner or holder of an easement or the benefit of a restrictive covenant.

In this situation is not considered orderly and proper planning that development rights should be sterilised by a State government's agency's non-proprietary interest in the land in circumstances where that government agency has it within its power to compulsorily acquire the land on just terms, but has not deemed it necessary to do so.

In view of the above circumstances, approval of the application with standard conditions is recommended. A further condition is recommended requiring a notification to be placed on the title advising owners of the sites of the existence of the Serpentine water trunk main and possible implications such as maintenance access. Conditional approval is recommended accordingly."

28 On that recommendation, the councillors granted conditional approval in those terms. The situation was similar in relation to the subsequent grant of approval for lot 191, although the minutes there are slightly different and include a passage:

"The relevant matters of public interest to which regard must be had under the reservation are matters of State or regional significance. It is considered that other mechanisms available to a State agency, namely, the Water Corporation are sufficient to protect those matters of State or regional significance. Accordingly, having regard to the purpose of the reservation and the mechanisms available to the State government to protect matters of regional significance, it is considered in this particular case that the purpose of the reservation is not sufficient to justify refusal of the application."

29 A number of points can be recognised in those passages from the minutes of Council as warranting remark. First of all, there is the observation that the Water Corporation had no proprietary interest in the land. In my view, that is a dubious statement having regard to the rights which it had to the retention and preservation of this pipeline and its ownership under the statutory regime which I have already described. Whether its interest was truly proprietary may be debatable, but it certainly had an interest and a right to the protection of this interest under its statutory regime: compare Newcastle-under-Lyme Corporation v Wolstanton Ltd [1947] Ch 427 and Envestra Ltd v Port Adelaide Enfield [2003] SASC 171; (2003) 86 SASR 155 at 159. The significance of the pipeline and the need for its preservation could not, in my view, be avoided or diminished by this underestimation of the nature of the interest.

30 Secondly, on a fair reading of the minutes, I am satisfied that there was a recognition by the Council of the need to take some steps to protect this pipeline, but material considerations in the decision of the Council was that this could be accomplished by the Water Corporation acting alone under its statutory powers and that because of that it would not be orderly and proper planning to restrict the development uses out of considerations for the actual or potential present or future effect of the pipeline.

31 In my view that is a serious error of law in that the need for the protection and the preservation of this pipeline, including future access, was plainly a matter of public interest and general amenity, not only for residents or landowners within the Randford Estate, but for those within the area of the Town Planning Scheme generally and in the wider community. The view which these observations reflect, namely, that the presence and preservation of the pipeline was a matter which did not affect the orderly and proper planning of the area because it could be left to the initiative of the Water Corporation, seriously underestimates the proper scope of the planning and development considerations which the Council was required to consider, so much so as to constitute an error of law amounting to a failure to consider a relevant matter.

32 Whether or not the Water Corporation did have or still has sufficient alternative remedies for the preservation and protection of its interest in this pipeline was the subject of further submissions before me. My attention was drawn to the powers of compulsory acquisition for such a water authority contained in s 46(2) of the Water Boards Act 1904; to the prospect of obtaining a prescription limiting access or building within a limited area of the pipeline, which might be granted under powers recognised by s 50A(1) of the Metropolitan Water Supply Sewerage and Drainage Act 1909; and to an assertion that development of a kind which might impede access to, or the preservation of, a pipeline could be prevented by Water Corporation refusing consent under s 148 of the MWSS & D Act to any building application submitted by an owner.

33 I am by no means persuaded that the process of consent contemplated by s 148 is apt to include a refusal based upon a deep major water main which does not reticulate to the particular location. But I do accept that there are in existence the potential for compulsory acquisition under the Water Boards Act 1904 which I have mentioned, and an opportunity for a prescriptive order to be made by the Minister, not by the Corporation, to enliven the prohibition under s 50A of the MWSS & D Act.

34 In my view, the existence of these alternative methods of dealing with the need to protect and preserve the pipeline are certainly matters for consideration in regard to how this dilemma should best be addressed. However, they do not detract from the fact that a question of building over or near the pipeline reserve gives rise to planning considerations which should be considered by the Council and which were not, I am satisfied, considered on these decisions.

35 I am satisfied that in relation to the development applications for the first four lots there was a failure to accord natural justice to the Water Corporation which would require reconsideration of this matter. In reaching that conclusion I do not overlook the submissions made both by the Council and by the second respondent that the subject matter of the objections was known from the 2003 application and that attention to that subject matter was given in the briefing paper. The fact is that the actual letter of objection was not received by the decision-makers and there were some differences between the 2003 application and the present application in relation to the extent to which a particular building was proposed and the nature of engineering advice which was available to justify what was contemplated. In rebuttal of the potential significance of that last factor Council submits that the 2003 applications involved a more extensive imposition on the reserve from the point of view of access to the pipeline than these four applications did. That is true, but the fact remains that what was considered in 2003 was not the same as what was considered on the objected occasion. I am not by any means persuaded that the familiarity with the general subject matter of the objection derived from that first occasion is sufficient to discharge the obligation under the Town Planning Scheme, and otherwise, to accord a hearing to the Water Corporation.

36 At present I am not in a position, through lack of time, to analyse closely whether there was the same degree, or any degree, of lack of procedural fairness in relation to objections from the Water Corporation to the fifth application. That appears to be of comparatively small significance in view of my general conclusion that there was an error of law in relation to the significance of planning considerations.

37 There remains another issue, and it is whether or not the fact that this reserve passed through the middle of the area covered by the Structure Plan meant that it was subject to the Structure Plan, and that, therefore, any use of the land within the reserve which involved a departure from the use contemplated by the Structure Plan could not be approved without the endorsement of the State Planning Commission.

38 In effect this issue is whether or not the process followed in relation to the 2003 applications which resulted in their refusal, after rejection by the WSPC, was really mandatory. The submissions for the applicant are that the Structure Plan did control the use of land within this corridor, that it could not be approved by the City of Canning unless it was also approved by the State Planning Commission; and that the approval of the State Planning Commission was neither sought nor obtained. Hence the purported approvals were all invalid simply on that basis, which the applicant advances as one of several invalidating factors. The position argued for the second respondent involves a detailed scrutiny of the terms of the Town Planning Scheme.

39 The substance of the submissions made by counsel for the second respondent in this regard are that the provisions of Pt 5 of the Town Planning Scheme which deal with residential development and significantly, the provisions of cl 5.3.3.1 which reads:

"The council may adopt a Structure Plan subject to the approval of the commission in relation to any land with or without modifications:

(a) as the basis for the preparation of a Town Planning Scheme involving the land; or

(b) as the basis for determining its attitude to the subdivision of, or for dealing with any other development of the land, are confined to areas which are zoned residential."

40 Counsel supports this argument by pointing to Pt 2 of the Town Planning Scheme which deals with reservations which he submits contains an exclusive regime dealing with reservations in a manner which would deprive Pt 5 (dealing with residential land) of any application to reserves. Mr Stein argues, and is well supported by authority, that land which is the subject of a reserve, in particular a local authority reserve as this land is, is not zoned and consequently, cannot be regarded as residential. That fact, so his argument goes, immediately places all the corridor land, the subject of this reserve, outside the scope of Pt 5 of the Scheme and outside the limits, controls or subject matter of any Structure Plan notwithstanding that of necessity, a Structure Plan dealing with adjacent land may make reference to it.

41 That argument requires clause 5.3.3.1 which empowers a council to adopt a Structure Plan in relation to any land to be interpreted as confined to any residential land. It is quite true, as Mr Stein has said, that Pt 5 deals with residential land but the language of cl 5.3.3.1 is not expressly so limited and the question is whether or not it is impliedly limited or should be read down having regard to the limited subject matter which it addresses.

42 It is here that great stress is made by the second respondent on the content of Pt 2 of the Town Planning Scheme. In answer to that submission, counsel for the applicant points out that cl 2.1.7 of the Town Planning Scheme dealing with applications concerning any reservations reads:

"The general provisions in clause 2.3 and elsewhere in the scheme relating to developments and applications for development approval shall insofar as they are not inconsistent with the provisions of this clause, apply to local authority reservations."

43 The applicant's argument is that all parts of the Scheme including Pt 5 have application in relation to reservations. At this point, and if there were nothing more, I would incline to the view that Pt 5 in referring to Structure Plans and in particular cl 5.3.3.1 when referring to any land, must refer to all types of land because, inevitably, as in this case the area within a Structure Plan will accommodate usages of the land which are not entirely residential.

44 This obvious hypothesis is confirmed by the content of the Structure Plan in this case which includes a proposed primary school site, drainage areas, neighbourhood commercial centres, a health centre and other non residential usage. Quite so, but Mr Stein submits that those different usages do not detract from the fact that all that land is, or was, zoned residential and these are particular types of land use within a residential zone which may be permitted. Hence, he submits the distinction between zoned land subject to the Structure Plan whose use must conform to the predicted indications of the Structure Plan unless otherwise approved by both the Council and the State Planning Commission and unzoned land, stands.

45 As an aid to construction of these provisions I consider that I should have regard to the purpose for which these legislative provisions were apparently made, bearing in mind the requirements for a purposive construction compelled by s 18 of the Interpretation Act 1984 and by common law. The need for approval by the State Planning Commission for departures from land use contemplated by a Structure Plan seems to be predicated on the basis that a wider perspective as to the suitability of the proposed use needs to be taken than would be given by the local municipal authority, because the suitability of the Structure Plan has originally been passed upon by the State Planning Commission and may, and probably will have involved regional considerations extending beyond the domain of the local authority.

46 Accordingly, if within a Structure Plan there is a process for development or land use which takes place in parallel with; with reference to; or which is shaped by the use of a particular reserve, even a local reserve, one can assume, from the fact that there is a Structure Plan adopted, that this has had endorsement because of the wider planning perspective resulting from the scrutiny by the State Planning Commission. And, further, because of any departure from that configuration, including departures from the proposed use of this reserve, would likewise require planning approval from a wider perspective. It seems that the purpose of these policies is in favour of the applicant's submissions and against the second respondent's submissions. I am not able to identify any considerations of policy, or any purposes of a nature, which would favour the limited construction and which has been put forward by the second respondent. Such an interpretation I consider, could lead to inimical consequences for co-ordinated planning.

47 Accordingly, I conclude that in this case because residential development of land within this corridor and local reserve is a use which is plainly not contemplated by the Structure Plan and is a departure from what is obviously intended to be the preservation of an area for unrestricted access to the pipeline, it is not competent for the local authority to approve that use without reference for an approval by the State Planning Commission. For that reason as well, these decisions involved a mistake of law and should be quashed.

48 There are other incidental grounds which have been urged upon me to invalidate these decisions or which support the grant of certiorari or prohibition. It is unnecessary for me to attend to these as they will have no determinative consequences in the light of the conclusions which I have already reached.

49 There is little escape from the conclusion which has been suggested from these papers that major questions of planning and orderly development arose over whether or not housing should be permitted over or adjacent to this pipeline. I am not satisfied that those planning considerations have been directly addressed by the City of Canning. In fact, it is my view that that consideration of them has been deflected by the thought that that could be addressed and that development could be prevented by the Water Corporation. The implicit expectation of the Council was that action could be taken by the Water Corporation to prevent the development so approved or to acquire the land.

50 Those conclusions arising from the records of the Council strongly suggest that it is undesirable for residential dwellings to be constructed on, or close to, these pipelines - but, ultimately, that is a decision for the planning authorities. This recognition of those prospects however, by the Council and the inactivity by the applicant to respond to overtures from the second respondent to consider the purchase of the land or the compulsory acquisition of it for the preservation of the pipeline, also strongly suggests (and there has been no denial of this) that an influential factor in the decision-making process so far has been thought of the financial responsibility which the Council would have to shoulder to pay compensation for injurious affection to the land owner if development approval were refused for these lots.

51 When I say the Council would have to pay, my attention was drawn to passages in the Town Planning Scheme which, on one reading, would suggest that if the decision to refuse development was dictated by a refusal of the State Planning Commission to endorse a departure from the Structure Plan, that would not be an event which would trigger an entitlement to compensation for injurious affection. That is not an issue which has been fully argued before me, it is not directly in context in these proceedings, and I should say no more about it except that I am not presently disposed to accept without question that it is correct.

52 If by approving these applications for development approval, the first respondent escapes from any obligation to pay compensation for injurious affection, it effectively passes the buck in this regard to the Water Corporation, leaving as one of its options, the prospect of compulsory acquisition and the need to pay compensation for that acquisition.

53 Having regard to the history of these matters and the language in which the report of the Council is framed, I am also satisfied that advertence to the financial consequences of refusing development approval was a material and influential factor in the decision to approve these five applications. That was an irrelevant and impermissible factor on the basis of the authorities which have been cited to me and this provides a further ground to quash the decisions.

54 I am satisfied that the applicant has made out grounds for the grant of a writ of certiorari to quash all five development approvals. In the light of that, it seems to me to be doubtful whether or not writs of prohibition or other relief are needed.