43 MCGREGOR ROAD PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL - [2017] WASAT 127

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: 43 MCGREGOR ROAD PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 127

MEMBER: MS L EDDY (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 28 SEPTEMBER 2017

FILE NO/S: DR 160 of 2017

BETWEEN: 43 MCGREGOR ROAD PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Town planning - Development - Condition requiring notification to be lodged on certificate of title pursuant to s 70A of the Transfer of Lands Act in relation to potential amenity impacts on the site arising from activities off site - Whether JDAP is a public authority within meaning of the Transfer of Land Acts - Whether amenity impacts on land the subject of a development application caused by factors outside of that land may be the subject of a notification under s 70A of the Transfer of land Act - Whether condition requiring notification under s 70A of the Transfer of Land Act has proper planning purpose in this case

Legislation:

Interpretation Act 1984 (WA), s 5
Local Government Act 1995 (WA), s 3.1(1), s 3.4
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 11, reg 12, reg 17, reg 18, reg 19
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 68
Planning and Development Act 2005 (WA), s 165, s 171A, s 171C(1)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Transfer of Land Act 1893 (WA), s 4, s 70A, s 70A(1), s 129BA, s 129BB, s 129C, Pt IVA s 136C, s 136J

Result:

Condition 9 of the conditional development approval is not valid
Adjourned to directions hearing for parties to be heard as to appropriate order

Summary of Tribunal's decision:

The applicant sought review of the respondent's decision to grant approval for the development of approximately 250 multiple dwellings on a site near to Leach Highway, Palmyra. In particular, the applicant sought removal of condition 9 of the approval, which required a notification pursuant to s 70A of the Transfer of Land Act 1983 (WA) (TLA) to be lodged on the relevant certificates of title to alert prospective buyers that the residences may be affected by transport noise and odour which may occur in certain weather conditions (south-easterly winds) approximately five times a year for approximately three hours at a time during daylight hours.
In determining the application, the Tribunal was required to consider a number of substantive questions. The first question was whether a Metropolitan Central Joint Development Assessment Panel (JDAP) is a 'public authority' within the meaning of s 70A of the TLA, so as to be able to lodge a notification under s 70A of the TLA with the Registrar. The Tribunal determined that the JDAP was not a public authority within the meaning of the TLA. The second question was whether a 'factor affecting the use or enjoyment of land' could include something arising from another site that could cause a subjective loss of enjoyment in the land because of an impact on amenity. The Tribunal found that the words used in s 70A were ones of plain and ordinary meaning and were broad in scope. There is no reason, in principle, why a s 70A notification could not be lodged in relation to a factor that arises from activities off site that cause an impact on amenity and therefore affects the use or enjoyment of the site. The third question was whether a local government or public authority could compel a landowner, by way of a condition of development approval, to provide written consent to a notification on the owner's title under s 70A of the TLA. The Tribunal determined that it was not appropriate to determine this question in the context of this application because it had determined that this particular condition had no proper planning purpose in the context of this development application and because determination of this question may require the Tribunal to consider whether a number of previous decisions of the Tribunal were 'clearly wrong' and should not be followed. The fourth and final question was whether, in the circumstances of this development application, condition 9 had a proper planning purpose and fairly and reasonably related to the proposed development. The Tribunal found that in this case the condition did not have any proper planning purpose.
The Tribunal concluded that condition 9 should not be imposed as a condition of development on this particular development approval.

Category: B

Representation:

Counsel:

Applicant: N/A
Respondent: N/A

Solicitors:

Applicant: Hotchkin Hanly
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

AttorneyGeneral for N.S.W v Brewery Employees Union of N.S.W. (1908) 6 CLR 469
Brake and Western Australian Planning Commission [2016] WASAT 132
Canal Rocks Pty Ltd and Western Australian Planning Commission [2013] WASAT 104
Maraldi and City of Rockingham [2007] WASAT 225
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63
Reid v Western Australian Planning Commission [2016] WASCA 181
Smith and City of Belmont [2014] WASAT 97

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

By application dated 4 October 2016, 43 McGregor Road Pty Ltd (applicant), requested development approval to construct 258 multiple dwellings, contained in nine separate buildings at 43 and 43A McGregor Road, Palmyra (site).
On 12 January 2017, the Metropolitan Central Joint Development Assessment Panel (JDAP) approved the application subject to a number of conditions. Relevantly to this application, condition 9 provided:
Prior to occupation of development, a notification pursuant to section 70A of the Transfer of Land Act 1983 is required to be lodged on the relevant Certificates of Title to alert prospective buyers that the residences may be affected by transport noise and odours emanating from nearby industrial land uses.
On 17 March 2017, the applicant applied to the JDAP to amend a number of conditions, including condition 9. On 11 May 2017, the JDAP resolved to amend condition 9 to read:
Prior to occupation of development, a notification pursuant to section 70A of the Transfer of Land Act 1983 is required to be lodged on the relevant Certificates of Title to alert prospective buyers that the residences may be affected by transport noise and odours may occur in certain weather conditions (south-easterly winds) approximately five times a year for approximately three hours at a time during daylight hours.
On 16 May 2017, the applicant lodged an application with the Tribunal pursuant to reg 18 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations) seeking review of the respondent's decision.
On 26 May 2017, the Tribunal ordered that the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The Tribunal has before it the following documents:
1)Application for review lodged with the Tribunal on 16 May 2017;
2)Statement of Agreed Facts lodged with the Tribunal on 12 June 2017;
3)Agreed Bundle of Documents lodged with the Tribunal on 12 June 2017;
4)Respondent's Submissions and List of Decided Cases lodged with the Tribunal on 19 June 2017;
5)Applicant's Submissions and List of Authorities lodged with the Tribunal 19 June 2017;
6)Applicant's Responsive Submission to Those of the Respondent lodged with the Tribunal on 21 June 2017; and
7)Respondent's Submissions in Reply lodged with the Tribunal on 26 June 2017.

The issue

The issue raised on this application is whether condition 9 of the JDAP's conditional approval of the development application is a valid condition.

Submissions

The applicant makes, in essence, five submissions.
The first is a somewhat technical submission. As currently worded, condition 9 purports to require a notification to be lodged under the Transfer of Land Act 1893 (WA) (TLA). Technically, only the Registrar is able to endorse a notification on a certificate of title under s 70A of the TLA. The Registrar is required to do so if a notification has been lodged by a local government or public authority and is accompanied by a written consent from the landowner. Patently, the applicant is correct. If it is otherwise valid, condition 9 would have to be reworded to direct attention to what the applicant is required to do, that is, to give its consent to a notification to be lodged by the local government or a public authority.
The applicant's second submission is that the JDAP is not a 'public authority' within the meaning of s 70A of the TLA and is therefore not itself able to lodge a notification under that section. It is therefore unclear from the condition as to who is required to lodge the notification. The applicant submits that if, as appears to be implicit in the condition, it is intended that the City of Melville (City) is to lodge the notification, how is it that the JDAP can direct the City to form the relevant opinion under s 70A(1) of the TLA and to take action to lodge a notification as contemplated by condition 9?
The respondent submits that the power to impose condition 9 arises from the local scheme, in particular the deemed provision in cl 68 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2005 (WA), and not from s 70A of the TLA. The respondent points to a number of previous Tribunal decisions where similar conditions have been imposed by the Tribunal: see Maraldi and City of Rockingham [2007] WASAT 225; Canal Rocks Pty Ltd and Western Australian Planning Commission [2013] WASAT 104; Brake and Western Australian Planning Commission [2016] WASAT 132; Smith and City of Belmont [2014] WASAT 97. The respondent then points to the recommendation of the imposition of condition 9 in the Responsible Authority Report and submits that this means that the City of Melville has concluded that it is desirable for a s 70A of TLA notification to be lodged in this case. It is submitted that it is therefore unnecessary to determine whether the JDAP is a 'public authority' within the meaning of s 70A of the TLA.
The applicant's third submission relates to the factors which can be the subject of a notification under s 70A of the TLA. The applicant submits that, properly understood, s 70A of the TLA only permits notification in relation to factors which the owner, or some future owner of the land, is otherwise unaware. In addition, s 70A of the TLA is intended to apply only to the manner in which land is to be used or enjoyed and not to matters that might affect a person's 'enjoyment' of his or her land. That is, notification on a title under s 70A of the TLA may be directed at a restriction or obligation on the manner in which the land may be used but not towards matters of subjective amenity impact.
The respondent submits that the limitation argued by the applicant is not supported by the ordinary meaning of the statutory text of s 70A of the TLA. In addition, it is submitted that the words 'use and enjoyment' have a specific legal meaning when used in the context of a private nuisance. The respondent submits that it should be presumed that Parliament used these words as it intended that the words would bear that specific legal meaning: citing AttorneyGeneral for N.S.W v Brewery Employees Union of N.S.W. (1908) 6 CLR 469 at 531; DC Pearce and RS Geddes, Statutory Interpretation in Australia (7th ed, 2011), at [4.13].
The applicant's fourth submission is that s 70A of the TLA either cannot, or should not, be used by way of a condition on development approval to compel a landowner to consent to notification on the title of his/her/its land. The applicant submits that the Tribunal ought not to follow previous Tribunal decisions that took the view that a condition requiring an owner to consent to a notification being lodged under s 70A of the TLA could be for a proper planning purpose.
The respondent submits that it is proper to compel a landowner to consent to the lodging of a notification on title under s 70A of the TLA if in the circumstances there is a proper planning purpose. The respondent also submits that on the facts of this case, the landowner should be taken to have consented to the imposition of just such a condition.
The respondent further submits that just because a condition of development approval affects the vested proprietary rights of a landowner does not render the condition invalid, so long as the condition has a proper planning purpose. The respondent submits that notification of amenity and odour impacts that are unusual in a residential area in circumstances where the development will see the creation of a significant number of residences has a proper planning purpose.
Finally, the applicant submits that condition 9 is not a reasonable or fairly referable condition in the circumstances of this case.

Is the JDAP a 'public authority' within the meaning of s 70A of the TLA?

The Tribunal is not persuaded by the respondent's submission that it is not necessary to address the issue of whether the JDAP is a 'public authority' within the meaning of s 70A of the TLA. The Responsible Authority Report is the report of an officer employed by the City, in this case Mark Scarfone, Acting Manager Statutory Planning. The Tribunal does not accept that a recommendation that condition 9 be imposed in this report equates to a determination by the City that a notification under s 70A of the TLA is desirable in the circumstances of this case, or that it is willing to lodge such a notification with the Registrar. Therefore, unless the JDAP is a 'public authority' within the meaning of s 70A of the TLA, condition 9 could only direct the owner of the land to give his/her/its consent, should the local government decide that a notification on title under s 70A of the TLA would be desirable.
Section 4 of the TLA defines 'public authority' to mean:
(a)a Minister of the Crown in right of the State; or
(b)any State Government department, State trading concern, State instrumentality or State agency; or
(c)any public statutory body, whether or not corporate, established under a written law but not including a local government[.]
In this case, the JDAP could only potentially come under the meaning of paragraph (c) of that definition.
Pursuant to s 171C(1) of the Planning and Development Act 2005 (WA) (PD Act), the Minister may, by order published in the Government Gazette, establish a JDAP for two or more districts. The Minister may revoke or amend an order made under s 171C(1) of the PD Act by further order published in the gazette. Thus a JDAP is not directly created by the PD Act, but pursuant to the authority given by s 171C(1) of the PD Act, a Minister may establish a JDAP by way of an order published in the Government Gazette.
The term 'statutory body' is not defined in the PD Act, and is not a term defined in the Interpretation Act 1984 (WA) (Interpretation Act). Its ordinary meaning would seem to be well understood, and refers to a body created by a statute. In this case, the term 'statutory body' is not used in isolation. Rather, the definition uses a fuller phrase, that is, a 'statutory body' 'established under a written law'.
Section 5 of the Interpretation Act provides that:
under, in relation to a written law or a provision of a written law, includes 'by', 'in accordance with', 'pursuant to' and 'by virtue of'[.]
Applying this definition to the phrase as a whole, it would seem that a JDAP could be a 'statutory body … established under a written law'.
This does not fully address whether a JDAP meets the definition of a 'public authority' however, because the full phrase is, relevantly, a 'public' statutory body established under a written law.
The word 'public' is one of varied meaning depending on the way it is used and upon the context.
In the context of the TLA as a whole, the term 'public authority' is used as an alternative to local government.
In s 70A of the TLA, the local government or a public authority may consider it desirable that prospective purchasers be made aware of a factor affecting the use of the land or part of the land and may cause a notification of the factor to be lodged with the Registrar.
In s 129BA of the TLA, a restrictive covenant may be created for the benefit of a local government or public authority. Under s 129BB of the TLA a restrictive covenant for the benefit of a local government or public authority may be discharged.
Pursuant to s 129C of the TLA, an application may be made to the Supreme Court to wholly or partly extinguish, discharge or modify an easement or restriction under a restrictive covenant, including an easement or restrictive covenant that benefits a local government or public authority.
Part IVA of the TLA contains a number of provisions relating to the creation of easements and restrictive covenants by notation on a subdivision plan or diagram. Section 136C of the TLA allows for such an easement that benefits a local government or public authority to be noted on the plan or diagram notwithstanding that the benefit of the easement would not be with respect to the land. Section 136J of the TLA allows for an easement or restrictive covenant created under Pt IVA of the TLA to be discharged or modified.
The function of a local government, as stated in s 3.1(1) of the Local Government Act 1995(WA) (LG Act) is:
The general function of a local government is to provide for the good government of persons in its district.
Local governments have both legislative and executive functions: s 3.4 of the LG Act.
Having regard to the nature of local government, and to that of Ministers and the State bodies listed in paragraphs (a) and (b) of the definition of 'public authority' in the TLA, and to the provisions in the TLA that refer to public authorities, in the context of the TLA as a whole, the reference to a 'public statutory body … established under a written law' is, I think, to be properly understood as a requirement that the body has a public function or a public purpose of some kind.
Section 171A of the PD Act contemplates that, pursuant to regulations made by the Governor, certain prescribed development applications must be determined by a Development Assessment Panel (DAP) or a JDAP rather than the local government. In addition, another class of prescribed development applications may be determined by a DAP or a JDAP rather than the local government if the applicant elects for that to occur.
The DAP Regulations prescribe the classes of development applications that either must, or may be elected to be, determined by a DAP or JDAP. The DAP Regulations provide for the referral of development applications of those kinds by the local government to the DAP or JDAP, and provide a mechanism for the relevant local government to provide a report to the DAP or JDAP with sufficient information in it to enable the DAP or JDAP to determine the application: reg 11 and reg 12 of the DAP Regulations. A DAP or JDAP may also determine an application for amendment or cancellation of a development approval granted by the DAP or JDAP: reg 17 of the DAP Regulations.
The only other authority given to a DAP or JDAP is the determination of development applications of a class prescribed for the purposes of reg 19 of the DAP Regulations where the local government has delegated its power to determine that class of development applications to the DAP or JDAP: reg 19 of the DAP Regulations.
Thus it can be seen that a JDAP has a limited part of the relevant local government's executive power to determine specified classes of development applications under its local planning scheme. A JDAP has no role in the creation of polices and/or legislative instruments that guide planning decisions. It is not involved in the development of strategic planning for a local government or wider area. A JDAP has no ability to enforce the need to obtain approval for the use or development of land, nor to ensure development occurs consistently with its decision on a development application. It is a decisionmaker of what is in essence a private application to develop land, albeit the relevant planning framework (created by local government or by relevant State bodies) will require that determination to be made having regard to wider community factors, from a planning perspective.

For all of these reasons, I am not satisfied it has a public function or a public purpose.
In addition, there is nothing in the PD Act or in the DAP Regulations that gives a DAP or JDAP any general functions or powers to act as a 'person', or together as individual members, to exercise the power to cause a notification to be prepared and lodged with the Registrar, or to do anything at all other than the powers or authorities described above.
For these reasons, the Tribunal is not satisfied that a JDAP is a 'public authority' for the purposes of s 70A of the TLA. As such, a JDAP could not cause a notification to be prepared and lodged with the Registrar pursuant to s 70A(1) of the TLA.
That is not to say, subject to the question of whether a landowner can be compelled to consent to a notification on the title of his/her land, the JDAP could not, in circumstances where it has been notified that the relevant local government (and not simply an officer employed by the local government) has, in fact, determined that a notification is desirable and will, at the appropriate time, lodge a notification under s 70A of the TLA, impose a condition requiring a landowner to consent to that notification being created.

Factors that can be the subject of notification on title

Section 70A of the TLA provides for a local government or public authority to prepare and lodge a notification where it considers it desirable that 'proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land'.
None of 'factor', 'affecting' or 'use or enjoyment' are terms defined by the TLA or in the Interpretation Act.
The term 'factor' is defined in the Oxford Dictionary Online (2017) ( as:
a circumstance, fact, or influence that contributes to a result.
In the Macquarie Dictionary Online (2017) ( it is defined as:
one of the elements that contribute to bringing about any given result.
The ordinary meaning of 'affecting' may be taken from 'affect', which in the Oxford Dictionary Online (2017) ( is defined as:
Have an effect on; make a difference to.
Similarly, in the Macquarie Dictionary Online (2017) ( 'affect' is defined to mean:
to act on; produce an effect or a change in.
The phrase 'use and enjoyment' of land is one that is well understood in the context of the tort of nuisance, however the Tribunal does not necessarily accept that Parliament should be taken to have meant to incorporate the meaning of the phrase from this context when using it in s 70A of the TLA. This is particularly so because the language used in s 70A of the TLA is 'use or enjoyment' and not 'use and enjoyment'. However, putting aside the particular accepted legal meaning of the phrase 'use and enjoyment' in the context of a nuisance claim, the ordinary meanings of the words 'use' and 'enjoyment' of land are plain enough.
The Tribunal is satisfied that the phrase 'a factor affecting the use or enjoyment' is a broad one. They are not words of limitation.
The Tribunal is not satisfied that there is anything in the words and grammar used, the context of s 70A within the TLA as a whole, or the apparent purpose of the provision, that would make it appropriate to interpret the provision the way contended for by the applicant. The Tribunal is not persuaded by the reference to the examples used in the Minister's second reading speech in relation to what became s 70A of the TLA that it should seek to change or narrow the plain words used in s 70A of the TLA.

Can an owner be compelled to consent to a notification on title?

The applicant submits that Parliament conferred an absolute discretion on a landowner, under s 70A of the TLA to provide his/her/its written consent to the notification or not to so provide. It is argued that:
the primary motivation for invoking s 70A of the TLA is not for planning purposes, but for commercial purposes. That view is enhanced by the fact that the power exists in the TLA rather than the PD Act. If it was intended to be primarily a planning purposes, a provision similar to s 165 of the PD Act would be inserted in the PD Act to apply to development approvals generally, or the power of the notification would not be subject to such an absolute right of refusal.
The applicant submits that, applying the reasoning in Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63 (Temwood), at [43], as there is a vested statutory proprietary right created by s 70A of the TLA to not consent to a notification under s 70A of the TLA, it is not lawful to attempt to remove, or confiscate, that proprietary right by way of a condition of planning approval.
The Tribunal does not accept that the 'motivation' for a s 70A of the TLA notification is a commercial one, nor that this is a relevant factor for determining the issue at hand.
The preparation and lodgement of a notification (in the approved form) under s 70A of the TLA is a matter entirely at the discretion of the local government or public authority. It may do these things if it considers it desirable that proprietors or prospective proprietors be made aware of a factor affecting the use or enjoyment of all or part of the land.
However, the Registrar is only required to take action to cause the notification to be lodged on the relevant title if a notification that has been lodged is accompanied by written consent of the proprietor of the land. Implicitly, the local government or public authority is required to liaise with the proprietor of the land in order to obtain the written consent that must accompany the notification if it is to be endorsed on the certification of title.
There is nothing in the TLA that requires the proprietor of land to consent to notification on the certificate of title to his/her/its land pursuant to s 70A of the TLA. The Tribunal is not persuaded that this means that s 70A of the TLA creates any vested proprietary right. All it means is that a statutory mechanism that allows for a notification to be lodged on a certificate of title can only occur with the proprietor's written consent.
There remains, however, a real question, which the applicant raises, as to whether a local government or a public authority may impose, as a condition of development approval, a requirement that an owner provide written consent to the endorsement of a notification on the title under s 70A of the TLA. This question may be affected by the presence in the PD Act of an express provision allowing for a notification to be endorsed on a certificate of title in certain situations in the context of subdivision, while it is silent about whether such a notification may be required in the context of a development application. It may also be relevant whether, on its proper construction, the PD Act, together with the relevant local planning scheme implicitly contemplates a condition that requires a proprietor to give written consent to a notification under s 70A of the TLA where the proprietor could not be required to give that consent under the TLA. It seems that these matters have not been fully ventilated and considered by the Tribunal or the Supreme Court previously.
However, given the outcome of the question of whether condition 9 is a valid condition of this particular development approval discussed below, and given that answering the question requires the Tribunal to consider whether one or more of its previous decisions are 'clearly wrong' and therefore should be departed from, it is not appropriate to answer this question in the circumstances of this case.

Is condition 9 a valid condition?

As is well known, the test for the validity of a planning condition, is as articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. That this test applies in this jurisdiction was endorsed by the High Court of Australia in Western Australia in Temwood, at [57], where it was described in the following terms:
… A condition attached to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
In Reid v Western Australian Planning Commission [2016] WASCA 181, at [37] it was further explained:
Those principles require the establishment of a connection or relationship between the planning purpose for which the condition has been imposed, and the likely or possible consequences of the proposed subdivision. That connection or relationship must be established as a matter of fact. A relevant connection or relationship will not be established merely because the application for subdivision approval provides an opportunity or occasion to impose a condition in the furtherance of a proper planning purpose. Rather, the relevant connection or relationship must be between the planning purpose to be served by the condition and the likely or possible consequences of the proposed subdivision such as a need for public open space, or a foreshore reserve, or improved road access as a consequence of residential subdivision and development.
Firstly, relevant to the terms of condition 9, it is necessary to determine whether the proposed development would have likely or possible consequences in terms of the amenity (in terms of odour issue or transport noise) of those who would live within the multiple dwellings to be constructed.
The Statement of Agreed Facts states, in relation to these matters:
Odour issues
8.At the JDAP meeting held on 11 May 2017, a report from John Consulting Services (Odour Report) was tabled by D'Orsogna and considered by the JDAP. A copy of the Odour Report appears in the Agreed Bundle at tab 6. For the purpose of this proceeding, the contents of the Odour Report are accepted by the parties.
9.D'Orsogna's operations generate wastewater which is settled to remove major solids before being delivered to the Water Authority sewer.
10.The solids are retained on site and sealed in underground pits, which are pumped out every 23 months, and the contents disposed of by a licensed contractor.
11.The pumpout activities take approximately 3 hours and generate odours which are mildly offensive.
12.Prior to the pumpout activities, D'Orsogna conducts letterdrops in the local area. D'Orsogna has been conducting letterdrops advising residents of the pumpout activities since 2002.
13.In the period since 2009, the City has received 12 complaints from residents concerning odour from the D'Orsogna site.
14.Six of these complaints were made by residents living on McGregor Road or Forrest Street. Complaints have also been received from residents living on Marmion Street and Justinian Street.
15. The most recent complaint in relation to odour from the D'Orsogna site was made in February 2017.
Transport noise
16.The applicant submitted an Acoustic Design Report (Vipac Report) with its application for development approval. The ambient outdoor noise levels for the Land, reported in the Vipac Report, exceed the target outdoor noise criteria and outdoor noise limit referred to in State Planning Policy 5.4. A copy of the Vipac Report is included in the Agreed Bundle at tab 7.
17.Main Roads Western Australia provided comments in relation to the Vipac Report in a letter to the City of Melville, which is included in the Agreed Bundle at tab 8.
On page 1 of the Odour Report, in the last paragraph on that page, it is stated that:
The proposed development involves multiple storeys, and at least some external balconies. Thus, a relatively large number of dwellings will face D'Orsogna (compared with the existing largely single-dwelling nature of developments in the area), and balconies are well-recognised traps for pockets of odorous air, particularly under calm/low wind-speed conditions.
It would seem then, that the proposed development would have the result of significantly increasing the number of residences within the locality, which will be potentially affected, from time to time, by 'odorous air'.
The Vipac Report and the letter from Main Roads Western Australia (Main Roads) commenting on that report indicate that the future residents of the proposed development may possibly be exposed to transport noise from the nearby busy transport corridors. The Vipac Report makes a number of recommendations aimed at ameliorating those impacts to what it says is a reasonable standard. The letter from Main Roads suggests some further amelioration measures be taken.
Again, the proposed development would have the result of significantly increasing the number of residences within the locality, which will possibly be affected by transport noise to varying degrees at different locations within the site.
In this case, it is difficult to see how the required notifications on title under s 70A of the TLA reasonably and fairly relate to a proper planning purpose.
There would appear to be a proper planning purpose of ameliorating any amenity impact on the increased numbers of residents who it is planned would live within the development. There is also a proper planning purpose in considering whether or not there is a sufficient conflict between the land uses, given the relevant proximities, and where the proposed development is one of relatively high density residential dwelling in close proximity to a major transport corridor and to an existing land use with known odour emissions, whether a greater buffer should be required between those uses. However, condition 9 is not directed to any of these purposes and cannot achieve any of these purposes.
In this case, it is difficult to see how a notification warning prospective buyers about those amenity impacts has a proper planning purpose.
If the amenity impacts are sufficiently ameliorated by relevant details of the proposed development, or by way of conditions of approval that add additional aspects of amelioration, then what is the purpose of the notification? On the information before the Tribunal, the answer to that question is not apparent. If the purpose is to warn of potential amenity impacts, in circumstances where those impacts have not been sufficiently and appropriately ameliorated, then why has the proposed development been approved? Warning of the impact cannot ameliorate or remove the impact, so again, what does it achieve?
In this case, it is impossible to see how a notification advising potential purchasers that there are potential amenity impacts can have any effect on the existence of those amenity impacts, or the need for there to potentially be more of a buffer between inconsistent land uses.
If the purpose of the condition is to make potential purchasers aware of a potential negative amenity impact, while that might be a desirable goal at large, the Tribunal is not persuaded, if that is all it is for, that it has any planning purpose.
The Tribunal is not satisfied that condition 9 has, in the circumstances of this case, a proper planning purpose.

Orders

The Tribunal makes the following orders:
1.The proceeding is adjourned to a directions hearing on Wednesday, 11 October 2017 at 11.30 am in order to determine if it is necessary to hear from the parties in relation to whether the decision of the respondent made on 11 May 2017, and conveyed to the applicant by way of letter dated 16 May 2015, to approve the development application for 258 multiple dwellings subject to condition 9, should be varied by deletion of condition 9, or should be set aside and a different decision substituted.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: 43 MCGREGOR ROAD PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 127 (S)

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 11 OCTOBER 2017

DELIVERED : 11 OCTOBER 2017

PUBLISHED : 31 OCTOBER 2017

FILE NO/S: DR 160 of 2017

BETWEEN: 43 MCGREGOR ROAD PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Practice and procedure Town planning Application to amend development approval by deleting condition Application by third party for adjournment of directions hearing in order to enable third party to consider whether to make application for leave to make a submission in relation to the application under s 242 of the Planning and Development Act 2005 (WA) Proceeding already substantially and finally determined on the documents Tribunal determined that condition in dispute is invalid - Tribunal convened directions hearing 'in order to determine whether it is necessary to hear from the parties' as to whether condition determined by Tribunal to be invalid should be deleted or a different decision substituted

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA) reg 17, reg 18
Planning and Development Act 2005 (WA) s 242
State Administrative Tribunal Act 2004 (WA) s 17, s 27(2), s 60(2)

Result:

Application for adjournment dismissed
Final order made

Summary of Tribunal's decision:

43 McGregor Road Pty Ltd (43 McGregor Road) sought review by the Tribunal of the decision of the Metro Central Joint Development Assessment Panel (DAP) to not delete but amend a condition of a development approval previously granted by the DAP for a major residential development. 43 McGregor Road contended that the condition is invalid and should not be imposed.
The application for review was listed for determination entirely on the documents. The Tribunal published reasons for decision in which it determined that the condition should not be imposed, because it does have a proper planning purpose and does not fairly and reasonably relate to the proposed development. However, rather than making a final order disposing of the proceeding, the member constituting the Tribunal adjourned the matter to a directions hearing in order to determine if it is necessary to hear from the parties in relation to whether the condition should be deleted or whether the decision to grant the development approval should be set aside and a different decision substituted.
At the directions hearing, 43 McGregor Road and the Presiding Member of the DAP sought a final order from the Tribunal deleting the condition. However, a third party which operated a smallgoods factory in the vicinity of the site sought an adjournment of the directions hearing to enable consideration to be given as to whether to make an application for leave to make a submission in relation to the application under s 242 of the Planning and Development Act 2005 (WA). 43 McGregor Road opposed the application for an adjournment and although the Presiding Member of the DAP did not oppose an adjournment, the Presiding Member questioned its utility, given that the merits of the matter had already been determined.
The Tribunal declined to grant the third party's application for an adjournment of the directions hearing in the exercise of its discretion. The Tribunal came to this view because of the particular statutory context in which the application for review was brought (namely, a review of a decision to amend a condition of a development approval), the fact that the Tribunal had already substantially and finally determined the application for review, the parties' joint position that the condition should therefore be deleted, and McGregor Road's position that it has the benefit of an operative development approval for a major development and wishes to act on it without delay.

The Tribunal also noted that although the order adjourning the matter to the directions hearing contemplated the potential setting aside of the development approval and a different decision being made in relation to the development application, the development approval was granted by the DAP in an earlier process and the decision to grant development approval was not a reviewable decision before the Tribunal in this case.
The Tribunal made a final order setting aside the decision of the DAP to impose the condition.

Category: B

Representation:

Counsel:

Applicant: Mr P Dobson
Respondent: Mr J Misso

Solicitors:

Applicant: Hotchkin Hanly
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

43 McGregor Road Pty Ltd and Presiding member of the Metro Central Joint Development Assessment Panel [2017] WASAT 127

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Before me this morning is a directions hearing between 43 McGregor Road Pty Ltd (43 McGregor Road) and the Presiding Member of Metro Central Joint Development Assessment Panel (DAP). The directions hearing was listed by Member Lisa Eddy as a consequent order to the member's determination of the proceeding. The proceeding involves an application for review by 43 McGregor Road of the decision of the DAP made on 11 May 2017 pursuant to reg 17 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations) to not delete but amend condition 9 of a development approval previously granted by the DAP on 12 January 2017.
The application to the DAP under reg 17 of the DAP Regulations was made on 17 March 2017, a little over two months after the DAP, on 12 January 2017, granted development approval, subject to conditions, for the construction at 43 and 43A McGregor Road, Palmyra (site) of a residential development comprising some 258 residential units.
Condition 9, as imposed by the DAP on 11 May 2017, pursuant to reg 17 of the DAP Regulations, states as follows:
Prior to occupation of development, a notification pursuant to section 70A of the Transfer of Land Act 1983 is required to be lodged on the relevant Certificates of Title to alert prospective buyers that the residences may be affected by transport noise and odours may occur in certain weather conditions (southeasterly winds) approximately five times a year for approximately three hours at a time during daylight hours.
On 16 May 2017, 43 McGregor Road sought review of the DAP's decision to impose condition 9 in that amended form pursuant to reg 17 of the DAP Regulations. The application for review was made under reg 18 of the DAP Regulations, which enables a person who made an application under reg 17 to apply to the Tribunal for a review of the determination. The 'decision sought' by 43 McGregor Road in the application for review is 'Delete condition 9 in its entirety'.
At the first directions hearing on 26 May 2017, the proceeding was listed for determination entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The only programming orders that were made were for the parties to file with the Tribunal an agreed statement of facts and an agreed bundle of documents for the determination of the matter and for the parties to each file and exchange written submissions and any decided cases on which they rely and to file and exchange written submissions in reply.
The application for review was determined by the Tribunal, constituted by Member Eddy, on 28 September 2017; see 43 McGregor Road Pty Ltd and Presiding member of the Metro Central Joint Development Assessment Panel [2017] WASAT 127. In that decision, Member Eddy determined that condition 9 should not be imposed as a condition of development approval on the development, because condition 9 was found not to have a proper planning purpose and not to fairly and reasonably relate to the proposed development. In effect, the Tribunal determined that condition 9 is invalid.
Although the only issue raised in the application for review was whether condition 9, as imposed by the DAP on 11 May 2017, was a valid condition (see [7] of Member Eddy's reasons), rather than deleting condition 9 and making final orders in relation to the application for review, Member Eddy made the following order at the conclusion of her reasons:
The proceeding is adjourned to a directions hearing on Wednesday, 11 October 2017 at 11.30 am in order to determine if it is necessary to hear from the parties in relation to whether the decision of the respondent made on 11 May 2017, and conveyed to the applicant by way of letter dated 16 May 2015 [sic], to approve the development application for 258 multiple dwellings subject to condition 9, should be varied by deletion of condition 9, or should be set aside and a different decision substituted.
At the commencement of the directions hearing this morning, the parties, that is to say, 43 McGregor Road and the Presiding Member of the DAP, both represented by counsel, sought a final order from the Tribunal that the approval of the DAP made on 11 May 2017 be varied by deleting condition 9 and an order that there be no order as to costs.
On 9 October 2017, that is, on Monday of this week, Glen McLeod Legal wrote to the Tribunal and copied the letter to both parties' solicitors, stating that Glen McLeod Legal acts for D'Orsogna Limited (D'Orsogna) and that the condition the subject of the proceeding, namely condition 9, was imposed to alert prospective purchasers of units in the development on the site to potential transport noise and also to potential odours emanating from nearby industrial land uses, including D'Orsogna's land use, which counsel for D'Orsogna, Mr Lochore, has indicated to me this morning is a smallgoods factory.
The letter also indicates that prior to the commencement of this proceeding, D'Orsogna made submissions to the DAP and to the City of Melville (City), in which local government area the site is located, regarding the potential land use conflict between the proposed residential development and the D'Orsogna factory and the lack of direct consultation or notification in relation to the development, and that by letter dated 23 March 2017, D'Orsogna requested the City to keep it informed of any application to amend the approval of the development.
In addition, the letter indicates that D'Orsogna made further submissions to the City in support of condition 9, attaching an odour report that it had commissioned, and made a deputation at the meeting of the DAP on 11 May 2017 in support of condition 9.
The letter states that despite these submissions and that deputation, D'Orsogna was not aware of this proceeding until after the decision of Member Eddy was published on the Tribunal's website on or around 3 October 2017. The letter asserts that this outcome 'is a serious breach of procedural fairness and unjust for the following reasons':
(a)[43 McGregor Road and the DAP] jointly accepted the Odour Report commissioned by D'Orsogna;
(b)D'Orsogna was denied the opportunity to supplement or comment on its Odour Report; and
(c)D'Orsogna was denied the opportunity to make submissions on the validity and purpose of Condition 9 pursuant to section 242 of the Planning and Development Act 2005 (WA).
The letter then states:
In light of the above, we respectively request the Proceedings be adjourned to a further directions hearing to enable our client to consider further its legal position. Among other things, as a final order has not been made, our client may seek leave to intervene in this matter.

Should an adjournment be granted?

It does not appear to me there has been any denial of procedural fairness to D'Orsogna, given that it has no independent standing to seek review or bring a matter to the Tribunal in relation to the approval.
However, Mr Lochore submits that at the very least, the Tribunal should not make the final order sought by the parties today, but should adjourn the matter for a period of time to enable consideration to be given as to whether an application for leave to make submissions under s 242 of the Planning and Development Act 2005 (WA) (PD Act) should be made. Section 242 of the PD Act states as follows:
The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
Mr Lochore submits that there should be an adjournment, both in the interests of fairness and for the Tribunal to acquire a contradictor in this matter, so that it can produce the correct and preferable decision. Mr Lochore submits that Member Eddy's reasons leave open possible outcomes, including additional conditions being added, or at least an additional condition being added to the approval. Mr Lochore also foreshadowed a potential argument that, without condition 9, development approval may not be given to the proposal at all.
The application for an adjournment is opposed by 43 McGregor Road. 43 McGregor Road submits that having brought the application and having been successful in its argument that condition 9 should not be imposed, it should be able to proceed now with its major residential development. It also submits that there is no need for a contradictor in this proceeding, because the parties are in agreement that condition 9 should be deleted and that is one of the outcomes contemplated in the order made by the member at the conclusion of her reasons.
The Presiding Member of the DAP does not oppose an adjournment, although questioning whether there is any utility in an adjournment being granted in the particular circumstances of this case. As Mr Misso expressed the submission on behalf of the Presiding Member of the DAP, as far as the DAP is concerned, the merits of the matter have been determined by the determination on the documents, given the scope of the proceeding.
The proceeding falls within the Tribunal's review jurisdiction under s 17 of the SAT Act. The purpose of the review, as stated in s 27(2) of the SAT Act, is 'to produce the correct and preferable decision at the time of the decision upon the review'.
The review in this case is limited by the enabling provision under which it is brought. It is not a review of the determination of the development application, which was, as I have said, determined by the DAP in January 2017. Rather, the application for review is in relation to the DAP's decision made on 11 May 2017 under reg 17 of the DAP Regulations to not delete but amend condition 9 to read in its current form.
Furthermore, the sole issue raised, for the purposes of the determination of the application, was whether condition 9 as imposed under reg 17 of the DAP Regulations on 11 May 2017 is a valid condition. The Tribunal has already finally determined that condition 9 imposed by the DAP, pursuant to reg 17 of the DAP Regulations, is not a valid condition and therefore should not be imposed.
Although the order made by Member Eddy on its face contemplates that there may be submissions from the parties as to an alternative outcome to the deletion of condition 9, and in particular contemplates that the decision made on 11 May 2017 was to approve the development application for 258 multiple dwellings subject to condition 9, and therefore that there may be a setting aside of the development approval and the substitution of a different decision, in fact, the decision of the DAP made on 11 May 2017 was not to grant development approval for the 258 multiple dwellings, but rather to delete or amend the conditions of the development approval in a certain way. On 11 May 2017, the DAP deleted two conditions (conditions 2 and 6) of the development approval and amended one condition (condition 9) to read in its current form. It is only the decision to amend condition 9 to read in its current form that is the reviewable decision the subject of this proceeding.
Given the statutory context of the decision under review, and given that the application for review was listed by the Tribunal for determination of the documents and was, in effect, determined by the Tribunal entirely on the documents, but subject to the final order being resolved at this directions hearing, and given the parties' positions, in my view, in all the circumstances, the application to adjourn the directions hearing should be dismissed.
The Tribunal has already substantially and finally determined the application for review. It has determined that condition 9 is invalid in the circumstances of this case as it does not have a proper planning purpose and therefore that the condition cannot be imposed. Given the particular statutory context in which this application for review was made, and given the Tribunal's determination of the application for review, subject to the terms of the final order being resolved, and given the parties' joint position that the matter has been resolved by the Tribunal and that condition 9 should be deleted, in my view the application for an adjournment should be dismissed in the exercise of the Tribunal's discretion.
I also bear in mind in exercising the discretion the submission of 43 McGregor Road that it has the benefit of an operative development approval for a major development and wishes to act on it without delay and that the matter that it brought before the Tribunal, which related solely to the issue of condition 9 and its validity, has been resolved. The applicant's position in that regard is a relevant matter for consideration.
I also add that given the particular statutory context in which this application for review was brought, namely a review under reg 18 of the DAP Regulations of the determination made under reg 17 of the DAP Regulations to amend condition 9 to read as it does, and given the reasons and decision of the Tribunal published on 28 September 2017 determining that condition 9 is invalid and cannot be imposed, in all the circumstances the range of potential outcomes in this matter is limited to a consideration as to whether condition 9 should be deleted.
Although, as I have said, the order the Tribunal made on 28 September 2017 contemplates the setting aside of the development approval and a different decision being made in relation to the development application, the development application was approved in an earlier process and the decision to grant development approval is not a reviewable decision before the Tribunal in this case. That is, in my view, also a relevant circumstance in the exercise of discretion as to whether to grant the adjournment sought by the third party.

Conclusion

For these reasons I decline the application for an adjournment.
I am persuaded that the orders sought by the parties should be made in terms slightly different from the orders sought by the applicant.

Orders

Subject to hearing from the parties, I propose to make the following orders.
1.Condition 9 of the development approval for the construction of 258 multiple dwellings at 43 and 43A McGregor Road, Palmyra, as imposed by the Metropolitan Central Joint Development Assessment Panel on 11 May 2017, is set aside.
2.There is no order as to costs.
[Final orders in these terms were made.]

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT