Auswide International Investments Southern River Pty Ltd and City Of Gosnells

[2007] WASAT 290

AUSWIDE INTERNATIONAL INVESTMENTS SOUTHERN RIVER PTY LTD and CITY OF GOSNELLS [2007] WASAT 290

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 290
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:264/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	5/11/07
No of pages:	8	Judgment Part:	1 of 1
Result:	The development application is incapable of approval in the absence of an Outline Development Plan Development application refused
Category:	B
PDF Version

Parties:	AUSWIDE INTERNATIONAL INVESTMENTS SOUTHERN RIVER PTY LTD CITY OF GOSNELLS
Catchwords:	Town planning Development application Place of public worship Preliminary issue Council may require an Outline Development Plan before issuing development approval Council made a planning policy requiring an Outline Development Plan Whether the development application is capable of approval in the absence of an Outline Development Plan Jurisdiction Whether Tribunal has power to determine that an Outline Development Plan is not required in proceedings concerning development application
Legislation:	City of Gosnells Town Planning Scheme No 6, cl 2.2, Pt 7 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 29(1)
Case References:	Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194
Orders	1. The absence of an Outline Development Plan for the area leads inevitably to the conclusion that the development application which is the subject of these proceedings should be refused on that ground alone.,2. The application for review is dismissed.,3. The decision of the respondent to refuse development approval for a place of public worship at Lot 1526 Leslie Street, Southern River is affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : AUSWIDE INTERNATIONAL INVESTMENTS SOUTHERN RIVER PTY LTD and CITY OF GOSNELLS [2007] WASAT 290 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 6 NOVEMBER 2007 FILE NO/S : DR 264 of 2007 BETWEEN : AUSWIDE INTERNATIONAL INVESTMENTS SOUTHERN RIVER PTY LTD

Applicant

AND

CITY OF GOSNELLS
Respondent

Catchwords:

Town planning - Development application - Place of public worship - Preliminary issue - Council may require an Outline Development Plan before issuing development approval - Council made a planning policy requiring an Outline Development Plan - Whether the development application is capable of approval in the absence of an Outline Development Plan - Jurisdiction - Whether Tribunal has power to determine that an Outline Development Plan is not required in proceedings concerning development application

(Page 2)

Legislation:

City of Gosnells Town Planning Scheme No 6, cl 2.2, Pt 7

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(1)

Result:

The development application is incapable of approval in the absence of an Outline Development Plan

Development application refused

Category: B

Representation:

Counsel:

Applicant : Mr MJ Hardy
Respondent : Mr T Price (Public sector employee)

Solicitors:

Applicant : Hardy Bowen
Respondent : City of Gosnells

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

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This case involved the review of the refusal of a development application for a place of public worship. Under the local planning scheme, the Council could require an Outline Development Plan, before issuing approval for development of land, where it determined that fragmented land ownership occurs and/or a framework is required for development. The Council adopted a planning policy which required an Outline Development Plan as one of the tasks that must be completed in the planning process of the area. An Outline Development Plan has not yet been prepared and adopted.

2 The Council identified a preliminary issue in the proceedings as to whether the absence of an Outline Development Plan leads inevitably to the conclusion that the application should be refused on that ground alone. The Tribunal determined that the development application is incapable of approval in the absence of an Outline Development Plan and that it does not have power in these proceedings to review the Council's requirement that there must be an Outline Development Plan. The Tribunal therefore affirmed the Council's decision to refuse development approval.

Preliminary issue

3 Auswide International Investments Southern River Pty Ltd (Auswide) seeks review under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision of the City of Gosnells (City or Council) to refuse Auswide's development application for a place of public worship at Lot 1526 Leslie Street, Southern River (site). The site is primarily zoned "Urban Deferred" under the Metropolitan Region Scheme (MRS). A part of the site is reserved for "Parks and Recreation" under the MRS. The site is zoned "General Rural" under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme).

4 In January 2001, the Western Australian Planning Commission released the Southern River/Forrestdale/Brookdale/Wungong District Structure Plan (DSP) to provide a broad framework for land use and development within the localities specified. The DSP identified the site as "Urban". Following release of the DSP, the City resolved to divide the locality of Southern River into five separate precincts. The site is located within Southern River Precinct 3.

(Page 4)

5 Part 7 of TPS 6 concerns Outline Development Plans. One of the purposes of Pt 7 is:

"To require an Outline Development Plan in any zone where the Council identifies the need for a framework to coordinate subdivision, development and use of land due to fragmented land ownership or other matters that may impact the orderly and proper planning of an area." (Clause 7.1(b))

6 Clause 7.2.2 of the Scheme states as follows:

"The Council may require an Outline Development Plan for land in zones other than Residential Development, before recommending subdivision or issuing planning approval for development or use of any land, where Council has determined that fragmented land ownership occurs and/or a framework is required for subdivision, development and land use co­ordination."

7 On 28 November 2006, the Council adopted Local Planning Policy No 6.3.3.1 – Southern River Precinct 3 Planning Framework (Policy) "to establish a local planning framework for Southern River Precinct 3". Clause 1 of the Policy states as follows in relation to "background and application":

"For development of [Southern River] Precinct 3 to occur in an orderly and proper manner, there are various planning requirements that need to be addressed, including amendments [to] the Metropolitan Region Scheme (MRS) and Town Planning Scheme No. 6 (TPS 6) and preparation of localised structure plans and applications for subdivision.

This Policy establishes a local planning framework to appropriately address these requirements."

8 Clause 2.1 of the Policy states that:

"Table 1 outlines the planning information that is required and the tasks that must be completed at various stages of the planning process within [Southern River] Precinct 3."

9 Table 1 identifies the planning process as comprising lifting urban deferment, local planning scheme amendment, local structure plan for the whole of Precinct 3 and Outline Development Plan (ODP), and indicates
(Page 5)

the information required or task to be completed at each stage of the process in Columns A, B, C and D respectively. Clause 2.5 of the Policy states that the City will not adopt an ODP for any area geographically smaller than the sub­precincts depicted on Figure 2, unless it is required to bring the Scheme into compliance with the MRS. The site is located in sub-precinct 3B on Figure 2. An ODP has not been prepared and adopted in relation to sub-precinct 3B.

10 In this context, the Council has identified a preliminary issue in the proceedings as to whether the absence of an ODP for the area leads inevitably to the conclusion that the application should be refused on that ground alone. The City contends that approval of the proposed development would be contrary to cl 7.2.2 of the Scheme, because the Council required an ODP for the area which includes the site by its adoption of the Policy. Auswide contends that, although the Council may require an ODP before granting development approval, the Policy itself does not have that effect.

Is the development application capable of approval in the absence of an ODP?

11 Although the Policy does not expressly require an ODP prior to granting development approval in relation to the site, I consider that it implicitly does so for the following three reasons.

12 First, cl 1 of the Policy states that "for development of [Southern River] Precinct 3 to occur in an orderly and proper manner, there are various planning requirements that need to be addressed …". Although cl 1 does not specifically refer to an ODP, Table 1 identifies an ODP as one of the planning requirements that needs to be addressed. The clear implication from cl 1 and Table 1 of the Policy is that an ODP must be adopted prior to approval of any development application in the relevant area.

13 Second, cl 2.1 states that Table 1 outlines "the tasks that must be completed at various stages of the planning process". As I said in Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10]:

"The purpose of an ODP is to provide comprehensive strategic planning prior to the formulation, or at least approval, of specific subdivision or development applications in relation to land."

(Page 6)

14 An ODP forms part of the detailed strategic planning stage of the planning process. Where required, an ODP precedes and guides the formulation and planning assessment of a specific development application. A development application therefore involves a subsequent stage of the planning process to an ODP. As the Policy refers to tasks that must be completed at various stages of the planning process, it implies that an ODP is required before development approval can be granted.

15 Third, the Policy is a local planning policy prepared and adopted by the Council in accordance with cl 2.2 of the Scheme. The reference in the Policy to an ODP is therefore to be understood in the context of the provisions of Pt 7 of the Scheme which concern ODPs. Clause 7.2.2 of the Scheme permits the Council to require an ODP, before issuing development approval, where it has determined that fragmented land ownership occurs and/or a framework is required for development. It is clear from this clause that, where the Council makes a planning policy requiring an ODP for land, the Council is precluded from granting development approval in relation to the land until an ODP has been prepared and adopted.

16 It follows that the development application is incapable of approval in the absence of an ODP.

Does the Tribunal have power to determine whether an ODP is required?

17 Section 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states as follows:

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

18 In WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194 at [41], I identified the following two-stage process of assessment under s 29(1) of the SAT Act:

1. What is the reviewable decision?

2. Is the function or discretion in question exercisable by the original decision-maker in making the reviewable decision?

19 In WA Plantation Resources Pty Ltd and City of Bunbury & Anor, WA Plantation Resources Pty Ltd contended that the Tribunal had power
(Page 7)

under s 29(1) of the SAT Act to adopt a structure plan in proceedings for review of the Council's decision to refuse development approval for a woodchip mill at Bunbury Port. At [42], I found that the reviewable decision in that case was the Council's determination of the planning application, which involved a development assessment. Similarly, the reviewable decision in this case is the Council's determination of the development application, which involved a development assessment.

20 In relation to whether the function or discretion was exercisable by the original decision-maker in making the reviewable decision, I determined in WA Plantation Resources Pty Ltd and City of Bunbury & Anor at [45] that "the function and discretion involved in adoption of a structure plan is conceptually and temporally distinct from the making of the reviewable decision". I have come to a similar view in this case. Whereas the reviewable decision in this case involved a development assessment, the Council's requirement in the Policy for an ODP involved a strategic planning decision which is quite distinct from the determination of the development application. Furthermore, the strategic planning decision of requiring an ODP necessarily occurs prior to the determination of a development application, because an ODP informs the formulation of a development application and its planning assessment. This is recognised by cl 7.2.2 of TPS 6 which authorises the Council to require an ODP "before … issuing planning approval for development" (emphasis added).

21 It follows that the Tribunal does not have power under s 29(1) of the SAT Act in these proceedings to exercise the function and discretion of the Council to require or not to require an ODP before granting development approval.

Conclusion

22 The development application is not capable of approval under cl 7.2.2 of TPS 6 in the absence of an ODP. The Tribunal does not have power in these proceedings to exercise the function and discretion of the Council to require or not to require an ODP.

23 Consequently, the absence of an ODP for the area leads inevitably to the conclusion that the development application should be refused on that ground alone. The decision of the Council to refuse development approval should be affirmed.

(Page 8)

Orders

24 The Tribunal makes the following orders:

1. The absence of an Outline Development Plan for the area leads inevitably to the conclusion that the development application which is the subject of these proceedings should be refused on that ground alone.

2. The application for review is dismissed.

3. The decision of the respondent to refuse development approval for a place of public worship at Lot 1526 Leslie Street, Southern River is affirmed.

I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER