Addvalue and Western Australian Planning Commission
[2005] WASAT 335
•15 DECEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: ADDVALUE and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 335
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)
HEARD: 1 DECEMBER 2005
DELIVERED : 15 DECEMBER 2005
FILE NO/S: DR 604 of 2005
BETWEEN: JAMES AND JENNIFER ADDVALUE
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
FILE NO/S :DR 455 of 2005
BETWEEN :LANCE HAROLD WIDDICOMBE
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
FILE NO/S :DR 376 of 2005
BETWEEN :KENNETH HALL
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
FILE NO/S :DR 511 of 2005
BETWEEN :VISION SURVEYS
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Survey strata subdivision Whether proposed lots capable of development Residential Design Codes Whether discretion to vary minimum lot sizes for purposes of development Whether discretion under operative town planning scheme Consequence to subdivision application if lots not capable of development
Legislation:
Intepretation Act 1984 (WA), s 19
Strata Titles Act 1985 (WA)
Town Planning and Development Act 1928 (WA)
Result:
Applications dismissed
Category: B
Representation:
DR 604 of 2005
Counsel:
Applicant: Ms M Tannock
Respondent: Ms C Ide
Solicitors:
Applicant: Minter Ellison
Respondent: State Solicitor's Office
DR 455 of 2005
Counsel:
Applicant: Mr S Colam
Respondent: Mr P Sewell
Solicitors:
Applicant: N/A
Respondent: N/A
DR 376 of 2005
Counsel:
Applicant: N/A
Respondent: Mr P Sewell
Solicitors:
Applicant: Self-represented
Respondent: N/A
DR 511 of 2005
Counsel:
Applicant: Mr S Colam
Respondent: Mr P Sewell
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Wallasley Pty Ltd (Unreported, Supreme Court of Western Australia; No 1179 of 1994)
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Each of the four applicants applied to subdivide lots within the City of Melville by way of survey strata subdivision. Each proposed subdivision involved the creation of a common property lot in addition to the survey strata lots on which residential development is eventually contemplated. If approved the survey strata lots would be more than 5% smaller than permitted by Table 1 of the Residential Design Codes.
The Western Australian Planning Commission argued that, if it were to approve the subdivisions, the lots created could not be developed for residential purposes. It contended that the City of Melville's Community Planning Scheme No 5 would not allow the City to approve a residential development. On that basis, the Commission contended that it would be contrary to orderly and proper planning to approve a subdivision of residential lots that were incapable of being approved for residential development, and that the applications were bound to fail.
The Tribunal examined the provisions of the Community Planning Scheme and the Residential Design Codes and concluded that there would be no discretion for the City to approve development if the subdivisions were granted. In view of that conclusion, the Tribunal determined that there could be no proper planning reasons to approve the subdivisions, and that the applications should all be dismissed.
The preliminary issue
Each of the four applications to which these reasons relate involves an application to subdivide lots within the City of Melville by way of survey strata subdivision. Each application involves the creation of individual survey strata lots and a common property lot. In each case, what is proposed is the creation of survey strata lots which are more than 5% below the minimum area required by Table 1 of the Residential Design Codes 2002 (the Codes) for the development of a dwelling.
In the course of preliminary hearings in relation to each of the matters, it emerged that the respondent, the Western Australian Planning Commission (the Commission), contended, in each case, that if the survey strata subdivision were approved, the approval would result in the creation of lots in respect of which it would not be open for the City of Melville to approve development. The Commission contended therefore that there could be no planning justification for the creation of lots which were incapable of development, and thus the applications have no reasonable prospect of success.
The Tribunal determined that the Commission's contention should be determined as a preliminary issue in each of the four proceedings.
The respondent was directed to formulate the issue in writing, and it did so as follows:
(a)if a proposed subdivision fails to conform to the minimum lot size requirement applicable under the Codes, can the City of Melville approve residential development on any of the proposed lots under Community Planning Scheme No 5 (CPS 5)?
(b)if the answer to the first issue is no, should the application to create lots that are incapable of residential development be approved?
The City of Melville Community Planning Scheme No. 5
Each of the lots with which we are concerned falls under the area covered by CPS 5. Clause 5.1(c) of CPS 5 provides:
"(c)Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes."
Clause 5.2 is entitled "Special Application of Residential Planning Codes" and provides for a number of exceptions or variations to the application of the Codes. Only one of those is relevant to the present issue. That is cl 5.2(f) which provides:
"(f)if prior to gazettal of this Scheme:
(i)the Commission has notified an applicant in writing that the Commission is prepared to:
approve a Diagram or Plan of Survey in accordance with the plan submitted by the applicant, or in accordance with the plan submitted once conditions have been fulfilled; or
endorse an appropriate form, prescribed under the Strata Titles General Regulations 1996, as submitted, or in accordance with the plan submitted once the conditions have been fulfilled:
('the Notification')
or
(ii)a lot (including a lot within the meaning of the Strata Titles Act 1985) has been created,
then the Council may approve an application for development approval with respect to a lot created or proposed to be created in accordance with that Notification, or with respect to a lot already in existence, which contains:
(iii)less open space than the minimum set out in column 6 of Table 1 to the Residential Planning Codes; or
(v)less area of lot per dwelling than the minimum set out in column 3 of Table 1 to the Residential Planning Codes."
Clause 4.2 of CPS 5 deals with variations to development requirements, and by cl 4.2(b) provides that, "except for development in respect of which the Codes apply, the Council may approve an application which does not comply with the standard or precinct development requirement prescribed under the scheme". Except for cl 5.2, there is no provision of CPS 5 which permits a variation from the requirements of the Codes. It follows that, if there is to be a discretion to vary standards imposed by the Codes (where they apply), it must be a discretion that arises under cl 5.2 or under the Codes themselves.
Site area requirements under the Codes
The question of minimum site areas for residential development is dealt with in Pt 3 of the Codes. The performance criteria in relation to variation of minimum site area are contained in cl 3.1.3 which reads:
"The Commission may approve the creation of a lot of a lesser area and the Commission or a Council may approve a minimum site area of a Grouped Dwelling on a site area less than that specified on Table 1 provided that the proposed variation would meet the following criteria:
•be no more than 5 percent less in area than that specified on Table 1; and
•facilitate the protection of an environmental or heritage feature; or
•facilitate the development of lots with separate and sufficient frontage to more than one public street; or
•overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature; or
•allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or
•achieve specific objectives of the local government Scheme and, where applicable, the Local Planning Strategy."
The acceptable development provisions in relation to variation of minimum site area are contained in cl 3.1.3 A3 which reads as follows:
"A3Subject to 3.1.2 only, the following variations to the minimum site areas set out in Column 3 of Table 1 may be made:
i.for the purposes of an Aged or Dependent Persons' dwelling or a Single Bedroom Dwelling, the minimum site area may be reduced by up to one third, in accordance with Section 4.1.2 and 4.1.3; or
ii.in the case of a Single House, the area of a lot approved for subdvision by the Commission; or
iii.the area of any existing lot with direct access to a public road, notwithstanding that it is less than that required in Table 1; or
iv.in the case of Grouped Dwellings in areas coded R12.5‑R17.5 and R60, the minimum site area shall be as permitted under Table 1 of the Residential Planning Codes, December 1991, where applications are made prior to 31 December 2004.
v.in the case of Grouped Dwellings in areas Coded R20 at the time of the gazettal of the Residential Design Codes the average site area shall be 450sqm."
Paragraphs (i), (iv) and (v) of cl 3.1.3 A3 are of no relevance to the present issue. Although the applications in each case are for group dwellings, and some may have been made prior to 31 December 2004, the proposed survey strata lots are still less than the areas permitted by Table 1 of the Residential Planning Codes, December 1991.
The applications cannot be brought within par 3.1.3 A3(ii) because any future residential development on the proposed lots would not come within the definition of a "Single House". That is defined by the Codes as "a dwelling standing wholly on its own green title or survey‑strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property". If these applications were approved, the titles which would subsequently be issued would include areas held in common property.
The Commission's contentions
It is common ground that the reductions in site area are more than 5% less in area than the areas specified in Table 1, and it is not suggested that any of the other performance criteria under cl 3.1.3 are applicable to any of the four applications.
The Commission argues that par 3.1.3 A3(iii) also has no application to any potential future development of the survey strata lots which would be created if the present applications were granted.
It contends that the survey strata lots which would be created by the approval of the applications are not "existing lots" for the purposes of the Codes.
The word "Lot" is defined by the Codes as "For Single Houses, a 'lot' as defined under the Town Planning and Development Act, and therefore for Multiple or Grouped Dwellings, the parent 'lot', inclusive of common areas, on [sic] which the strata scheme relates as defined under the Town Planning and Development Act".
The defined term "Lot" under the Codes is, in the case of land to which a strata scheme relates, the "parent lot", or the whole of the parcel of land to which the strata scheme relates.
The Commission's contention is, therefore, that there is no capacity to bring any of these applications within the acceptable development criteria under cl 3.1.3. The Commission further submits that not only does cl 5.2(f) of CPS 5 not provide a source of discretion to vary the requirements of the Codes in these cases, but rather it necessarily implies that there is no discretion. The principle of construction, namely that the express mention of one thing is the exclusion of another (expressio unius est exclusio alterius), is relied upon to support that submission.
Mr Widdicombe's and Vision Surveys's contentions
Mr Colam, who appeared for the applicants in matters DR 511 of 2005 and DR 455 of 2005, undertook an analysis of the provisions of the definitions of "lot" in the Strata Titles Act 1985 (WA) (the ST Act), the Town Planning and Development Act 1928 (WA) (the TPD Act), and the relationship between those definitions and the Codes. He identified, in our view correctly, that a lot for the purposes of the ST Act comes within the definition of "lot" under the TPD Act. We agree that a survey strata lot is "a defined portion of land depicted on a plan… exhibited in the public office of Department of Land Administration … for which a separate certificate of title has been or can be issued".
He then referred to the incorporation of the reference to the TPD Act in the definition of lot under the Codes to suggest that survey strata lots come within that definition, and thus within the expression "existing lot" for the purposes of cl 3.1.3 A3(iii) of the Codes.
Mr and Mrs Addvalue's contention
Ms Tannock, who appeared for the applicants, Mr and Mrs Addvalue, in matter DR 604 of 2005, argued that the construction of cl 5.2 of CPS 5 and Pt 3 of the Codes contended by the respondent leads to an unreasonable and absurd result; namely that strata survey subdivision involving the creation of common property lots would be the only form of residential subdivision in respect of which a discretion to vary the minimum site area (beyond 5%) would not arise.
She argued that cl 5.2 could not be construed in a way that effectively eliminates the respondent's discretion to grant subdivision approval, because to do so would be inconsistent with the TPD Act – Wallasley Pty Ltd (Unreported, Supreme Court of Western Australia; No 1179 of 1994).
Rather, she suggested, cl 4.2 of CPS 5 would permit a variation of the minimum site area standard because cl 3.1.3 A3 would not apply in its terms, and thus any proposed development on the survey strata lots would not be a development "in respect of which the [Codes] apply".
The meaning of "existing lot"
In an exchange with counsel for the respondent at the hearing, the Tribunal postulated that, if the expression "existing lot" is, by reason of the definition of lot in Part 2 of the Codes, a reference to an "existing parent lot", the acceptable development standard in cl 3.1.3 A3 might be met. It was postulated that, where an approved survey strata subdivision existed, the acceptable standard for Table 1 would be determined by dividing the area of the existing parent lot with the number of survey strata lots upon which dwellings are proposed. The respondent argued that that construction of the Codes was never intended. It was submitted that the approach by the respondent to cl 3.1.3 A3(iii) has been to treat any "existing lot" as a reference to a "green title" lot which existed at the time that the Codes came into force. It was suggested that the reason that cl 3.1.3 A3(iii) was inserted is to cover those situations where a coding is applied to an existing residential area and it is necessary to preserve the ability to develop lots which might then be found to be below the minimum site requirement under Table 1 for the applicable coding.
On reflection, the construction postulated by the Tribunal during the hearing is not sustainable. Although the drafting of cl 3.1.3 A3 leaves much to be desired, the intent of sub‑clause (iii) is simply to insert the area of an existing lot as the minimum site area for one dwelling within the applicable density code. By reason of the definition of "lot", where a survey strata involving common property were approved, the expression "existing lot" would remain a reference to the parent lot. It is the area of the parent lot which would be inserted into Table 1 as the minimum site requirement per dwelling. Sub‑clause (iii) cannot be construed as a basis for inserting into Table 1 as the acceptable site area for each dwelling, the area of only part of the "existing lot".
The definitions provided in Part 2 of the Codes apply "unless the context requires otherwise". We have considered whether the word "lot" in cl 3.1.3 A3(iii) should be construed as defined in Part 2, or whether the context requires some other definition. That was, in essence, the substance of Mr Colam's submissions which drew upon the definition of "lot" in the TPD Act and the ST Act as indicating the correct definition of "lot" for the purposes of sub‑clause 3.1.3 A3(iii).
The Tribunal was initially attracted to the proposition that, in order to avoid the inexplicable distinction between survey strata lots not involving common property (which could meet acceptable standards by virtue of cl 3.1.1 A3(ii)) and survey strata lots involving common property (which cannot come within cl 3.1.3 A3(ii)) a broader construction of the expression "existing lot" might be required.
The reference in cl 3.1.3 A3(iii) is not merely to "any existing lot", but is to "any existing lot with direct access to a public road". In each of the applications with which we are dealing, the rear lot or lots proposed do not have direct access to a public road, but rather have direct access to the common property in order to gain access to a public road.
In our view, it is not possible to construe the expression "existing lot" as a reference to lots as defined by the ST Act or the TPD Act. Even if "lot" is construed by reference to those definitions, cl 3.1.3 A3(iii) would not apply to the proposed subdivisions because the rear lots would not have direct access to a public road.
It follows that, in our view, the proposed developments do not meet the acceptable development standards set out in cl 3.1.3 A3. The proposed developments cannot otherwise meet the performance criteria, and accordingly there is no discretion available under the Codes for the City of Melville to grant development approval of the lots proposed in each of these applications.
Discretion under CPS 5
It is clear that, in its terms, cl 5.2(f) does not confer upon the council of the City of Melville a discretion to approve development on undersized lots approved by the respondent after gazettal of the scheme. The introductory words "if prior to gazettal of this Scheme" condition the circumstances giving rise to the discretion under cl 5.2(f).
While cl 5.2(f) cannot be a source of discretion it would not exclude the City of Melville's discretion to approve developments on these proposed lots if a discretion exists elsewhere in the scheme. We do not consider, however, that a discretion can be found elsewhere in the scheme.
Mr and Mrs Addvalue contend that the discretion may arise under cl 4.2, because, having found that there is no acceptable development standard under cl 3.1.3 A3 applicable to the proposed survey strata lots, development on the lots is not "development in respect of which the … Codes apply". That argument overlooks the clear terms of cl 5.1(c) of CPS 5 which applies the Codes to "the development of land for any of the residential purposes dealt with" by the Codes. It is suffice to note that the subdivisions proposed fall within areas to which coding has been applied. Each application involves land proposed to be used for residential purposes dealt with by the Codes, and the exception to the discretion found in cl 4.2(b) applies.
There is otherwise no source of discretion to be found in CPS 5 so that, if the survey strata subdivisions proposed in each case before us is approved, the City of Melville could not, within the terms of CPS 5, approve development on the approved survey strata lots.
Unfairness or unreasonableness
The respondent acknowledges that the construction of the Codes and CPS 5 leads to an anomaly. That is, by virtue of cl 3.1.3 A3(ii), subdivision of these lots into either "green titles" (as defined in the Codes) or survey strata lots without common areas would be capable of development whereas creation of survey strata lots with common areas would not. The Commission indicated during the hearing that it is proposing to amend the acceptable development standard to remove that anomaly. No planning justification for the distinction which the Codes create was identified during the hearing.
We do not accept, however, that that result justifies a construction of cl 5.2, cl 4.2 or the Codes in a way which creates a discretion which does not exist on the plain reading of the relevant provisions. In oral submissions, Ms Tannock asserted that, to deprive the present applicants of any scope for development of their land would amount to a "denial of natural justice" as being wholly unreasonable. Reference was made to s 19 of the Interpretation Act 1984 (WA) which permits the use of extrinsic material in interpretation of statutory provisions where the ordinary meaning conveyed by the text of a written law leads to a result that is manifestly absurd or is unreasonable. Section 19 has no application to the present matters where no party relies on any extrinsic material. Nor do rules of natural justice have any application to questions of the proper construction to statutory provisions of this nature. In this case, we are unable to identify any reasonable alternative construction of the Codes or CPS 5.
Professor Hall's submission
Professor Hall, the applicant in matter DR 376 of 05, lodged written submissions on the preliminary issue. He made reference to the development of the Raffles Hotel site for residential purposes within the City of Melville. He argued that concessions had been granted in relation to the height of that development which went beyond the standards applicable by the Codes. Professor Hall argued that if concessions could be given in relation to the Raffles Hotel site, then concessions should equally be available to the relatively small development that he proposes.
Under the Codes, the performance criteria allow many areas of discretion to vary standards. Town planning schemes often permit discretionary variations to standards. The Tribunal is unaware precisely what discretionary variations of standards may have been granted in relation the Raffles or on what basis they were granted. Whatever may have been the case, that is of no assistance to the Tribunal in determining the proper construction of CPS 5 and the Codes. The Tribunal is obliged to apply the statutory planning instruments according to their terms. Whether they have been properly applied in relation to other developments does not determine the proper construction of the provisions relevant to these cases.
Should the applications be approved
Having determined that the City of Melville cannot approve residential development on any of the proposed lots under CPS 5, the second question raised as a preliminary issue is whether the application to create lots that are incapable of residential development should be approved.
The respondent does not contend that it has no discretion to approve the survey strata subdivisions proposed. Rather its contention is that it must exercise its discretion in accordance with proper planning principles. It contends that the creation of survey strata lots which are incapable of development, within an established residential area, could not accord with proper planning principles. We agree. If the very purpose for which the subdivision is sought, namely residential development, cannot be carried out, the subdivision is pointless.
The conclusion that the City of Melville would have no capacity to approve development of the lots if the survey strata subdivision were approved leads to the conclusion that there is no reasonably arguable basis for the present applications. They are doomed to fail, and should be dismissed.
Conclusion
The answers to the two preliminary questions posed are:
(a)The City of Melville cannot approve residential development on any of the proposed lots under CPS 5.
(b)The application to create lots that are incapable of residential development should not be approved.
Orders
For the foregoing reasons, it is appropriate that, in relation to each of the applications, the Tribunal orders that the application be dismissed.
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
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