Barrymores Pty Ltd and City Of Fremantle
[2008] WASAT 120
•26 MAY 2008
BARRYMORES PTY LTD and CITY OF FREMANTLE [2008] WASAT 120
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 120 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:80/2008 | 21 MAY 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 26/05/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | There is power to extend the completion period for the approved development | ||
| B | |||
| PDF Version |
| Parties: | BARRYMORES PTY LTD CITY OF FREMANTLE |
Catchwords: | Town planning Extension of completion period for approved development Preliminary issue Whether there is power to extend completion period Development approval granted under former planning scheme that enabled local government to extend period for completion of approved development Whether completion period can be extended under new planning scheme Whether "non-conforming use" Whether development approval impliedly conditioned to allow extension of completion period Whether provision of new planning scheme that saves development approval granted under former planning scheme has the effect of continuing provision of former planning scheme that enabled extension of period for completion of approved development |
Legislation: | City of Fremantle Local Planning Scheme No 4, cl 1.1.2, cl 1.7.4, cl 4.3, cl 4.8.1, cl 4.9.1(a), cl 9.4, cl 10.5.1, cl 10.5.2 City of Fremantle Town Planning Scheme No 3, cl 92 Planning and Development Act 2005 (WA), s 172, Sch 7 cl 6, cl 7, cl 8 State Administrative Tribunal Act 2004 (WA), s 31 Town Planning and Development Act 1928 (WA), s 7AA(1) |
Case References: | Nil |
Orders | 1. The preliminary issue is answered as follows:,"The Council has power to extend the completion period for the approved development.",2. Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision by 26 June 2008.,3. The proceedings are adjourned to a further directions hearing at 10.30 am on 27 June 2008 in order to await the reconsideration of the decision. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BARRYMORES PTY LTD and CITY OF FREMANTLE [2008] WASAT 120 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 21 MAY 2008 DELIVERED : 26 MAY 2008 FILE NO/S : DR 80 of 2008 BETWEEN : BARRYMORES PTY LTD
- Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Extension of completion period for approved development - Preliminary issue - Whether there is power to extend completion period - Development approval granted under former planning scheme that enabled local government to extend period for completion of approved development - Whether completion period can be extended under new planning scheme - Whether "non-conforming use" - Whether development approval impliedly conditioned to allow extension of completion period - Whether provision of new planning scheme that saves development approval granted under former planning scheme has the effect of continuing provision of former planning scheme that enabled extension of period for completion of approved development
(Page 2)
Legislation:
City of Fremantle Local Planning Scheme No 4, cl 1.1.2, cl 1.7.4, cl 4.3, cl 4.8.1, cl 4.9.1(a), cl 9.4, cl 10.5.1, cl 10.5.2
City of Fremantle Town Planning Scheme No 3, cl 92
Planning and Development Act 2005 (WA), s 172, Sch 7 cl 6, cl 7, cl 8
State Administrative Tribunal Act 2004 (WA), s 31
Town Planning and Development Act 1928 (WA), s 7AA(1)
Result:
There is power to extend the completion period for the approved development
Category: B
Representation:
Counsel:
Applicant : Mr MA Etherington
Respondent : Mr A Roberts
Solicitors:
Applicant : Minter Ellison
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The City of Fremantle granted planning consent to Barrymores Pty Ltd to construct a residential development in North Fremantle. The development was required to be completed by a certain date. The City of Fremantle subsequently extended the date for completion in accordance with a power conferred by the applicable planning scheme. The planning scheme was revoked and replaced by a new planning scheme that did not confer an equivalent power to extend the completion period for an approved development.
2 Barrymores Pty Ltd applied to the City of Fremantle to extend the completion date for the approved development by one year. Although the development consent remains current and operative under the new planning scheme, the City of Fremantle refused to extend the completion period on the basis that it has no power to do so.
3 Barrymores Pty Ltd sought review of this decision by the State Administrative Tribunal and the parties identified a preliminary issue for determination as to whether the City of Fremantle has power to extend the completion period.
4 The Tribunal determined that the City of Fremantle has power to extend the completion period for each of two reasons.
5 First, the legislative intention of the former planning scheme was that every consent granted under it was impliedly conditioned to enable the Council to extend the consent to preclude it from lapsing. This is because the imposition of a completion period in a planning scheme is extremely unusual, the former scheme was required to be examined and potentially replaced after five years, and consents can, as occurred in this case, straddle planning schemes. Without an implied condition enabling the Council to grant an extension, the evident intention of the extension power in the former scheme, to mitigate potentially undesirable planning consequences and to provide flexibility, would be undermined.
6 Second, a provision of the new scheme that saves current consents granted under the former scheme has the effect of continuing the power of extension conferred by the former scheme, because otherwise the new scheme might prevent the carrying out of the development by not enabling the extension of the completion period.
(Page 4)
Introduction
7 These proceedings involve an application brought by Barrymores Pty Ltd (Barrymores) for review of the decision of the City of Fremantle (City or Council) to refuse to extend the completion period for an approved development at No 86 Thompson Road, North Fremantle (site) from 7 December 2008 to 7 December 2009.
8 The parties have identified a preliminary issue in the proceedings as to whether the City - and the Tribunal on review - has power to extend the completion period for the approved development.
9 The parties agree that if the completion period cannot be extended, then the application for review must be dismissed.
10 The parties also agree that if the completion period can be extended, then the Tribunal should invite the Council to reconsider the decision under s 31 of the State Administrative Tribunal Act 2004 (WA), because the City has not considered the merits of the application.
Background
11 On 29 November 2004, the City's Development Assessments Committee, acting under delegation from the Council, granted conditional planning consent for development of the site under the City of Fremantle Town Planning Scheme No 3 (TPS 3). The approved development involves:
• demolition of all buildings on the site other than a warehouse building;
• conversion of the warehouse building into eight grouped dwellings;
• construction of an additional 16 grouped dwellings; and
• upgrading and dedication of a right of way as a public road.
12 The Development Assessments Committee did not, at least explicitly, impose a condition of planning consent requiring the approved development to be commenced and completed by specific dates. However, at the time when the consent was granted - and until TPS 3 was revoked by cl 1.1.2 of the City of Fremantle Local Planning Scheme No 4 (LPS 4) on 8 March 2007 – cl 92 of TPS 3 stated as follows:
(Page 5)
- "Every consent shall, unless extended, lapse if:
(a) where consent is given for land to be used for a specified use in accordance with Part III, such use has not commenced within six months or within such time as stipulated by the Council;
(b) where consent is for building, such building has not been commenced within six months or completed within two years or within such times as stipulated by the Council.
For the purposes of this clause a building is completed on the date of practical completion certified by an architect or the date upon which the building is occupied and used, whichever is the earlier." (Emphasis in bold added.)
13 At the time when the planning consent was granted, the Council had relevantly "stipulated" alternative commencement and completion periods to those specified in cl 92(b) of TPS 3 in its policy DA8 Time limit, extension, and reconsideration of planning approval (Policy DA8) "unless a specific time limit is set by the Council within a Planning Approval". The commencement and completion periods stipulated by the Council in Policy DA8 were two years and three years, respectively.
14 Consistently with the commencement and completion periods stipulated by the Council in Policy DA8, the Council's notice of approval to commence the approved development dated 7 December 2004 includes the following paragraph between 15 express conditions and four advisory notes:
"This consent allows you to commence the use and/or construction within two years and to complete construction within three years of 7 December 2004. If the development is not completed within these periods, you must reapply for planning consent."
15 By letter dated 8 June 2006, the City's Director Urban Management extended the last day for commencement of the approved development to 7 December 2007 and extended the last day for completion of the approved development to 7 December 2008.
16 The approved development was commenced within the extended period.
(Page 6)
17 On 5 December 2007, Barrymores' architect applied on its behalf to the Council "for an extension to the current term of [the planning consent] … to extend the expiration date out to 7 December 2009".
18 On 9 January 2008, the City's Planning Services Committee considered a report from its assessing officer that recommended that Council grant an extension of time for completion of the approved development. The Committee resolved to defer the application "to allow officers to undertake further research".
19 On 6 February 2008, the City's Planning Services Committee considered a further report from its assessing officer that referred to legal advice to the effect that the Council does not have power to approve an extension of the completion period for the approved development. In consequence of this legal advice, the officer recommended refusal of the application. The Planning Services Committee, acting under delegation from the Council, refused to grant an extension of time.
20 At the hearing of the preliminary issue, both parties contended that the application to extend the completion period for the approved development relates only to the development of the eight grouped dwellings in the retained warehouse. However, it is apparent from the terms of the letter from Barrymores' architect dated 5 December 2007 to the City that the application that was made to the Council and is now the subject of these review proceedings is for an extension of the completion period for the whole of the approved development to 7 December 2009.
21 It is true that, in one of six arguments presented in support of an extension, the architect's letter refers to the likely time period for construction of the eight grouped dwellings. However, it is clear from the heading, the introductory paragraphs and the concluding paragraph of the letter that the application is for an extension of the term of the whole planning approval. The Council construed the application correctly when its Planning Services Committee resolved to refuse to grant an extension of time for completion "for 24 residential units (grouped dwellings)", that is, for the whole of the approved development.
22 On 20 February 2008, the City gave Barrymores' architect notice of the decision. On 5 March 2008, Barrymores commenced these proceedings for review of the decision.
(Page 7)
Is there power to extend the completion period for the approved development?
23 Mr MA Etherington, counsel for Barrymores, presented three arguments in support of his contention that the City has power to extend the completion period for the approved development. The first two arguments are based on provisions of LPS 4, whereas the third argument is based on the planning consent which is relevantly saved under LPS 4.
24 Mr Etherington's first argument is that cl 10.5.2 of LPS 4 provides power to amend the commencement and completion periods that apply to planning approvals granted under TPS 3.
25 For reasons that follow, it is necessary to set out the terms of both cl 10.5.1 and cl 10.5.2 of LPS 4. These provisions state as follows:
"10.5.1 Where the Council grants planning approval for development of land -
(a) the development is to be substantially commenced within two (2) years, or such other period as specified in the approval, after the date of determination, and
(b) the approval lapses if the development has not substantially commenced before the expiration of that period.
10.5.2 A written request may be made to the Council for an extension of the term of planning approval at any time prior to the expiry of the approval period in clause 10.5.1(a)."
26 Contrary to Mr Etherington's first argument, there are three textual indications in these provisions that demonstrate that cl 10.5.2 is concerned solely with an extension of the period for substantial commencement of a development, not with extension of a period for completion of a development.
27 First, when cl 10.5.2 is read in the context of cl 10.5.1, it is clear that it provides a mechanism to extend the period set by or in accordance with cl 10.5.1(a). Clause 10.5.2 must be read in the context of cl 10.5.1, because the textual flow is from the latter to the former. Moreover, it is apparent from the numbering of these provisions that they form part of a single subclause, namely, cl 10.5. Although the heading of a subclause does not form part of or affect the construction of the Scheme (cl 1.7.4), the fact that cl 10.5.1 and cl 10.5.2 together form the text of the same subclause indicates a connection between them.
(Page 8)
28 Second, the express requirement in cl 10.5.2 that a request for an extension of the term must be made "at any time prior to the expiry of the approval period in clause 10.5.1(a)" indicates that the term which may be extended is the approval period set by or in accordance with cl 10.5.1(a).
29 Third, cl 10.5.2 uses the words "the term" - in the singular - rather than "the terms" - in the plural - and clearly contemplates an ability to extend only one term, which is necessarily the period for substantial commencement.
30 A purposive interpretation of cl 10.5.2 arrives at the same result. The evident purpose of this provision is to enable an extension of the term set by or in accordance with cl 10.5.1(a), not any other period for commencement or completion of a development.
31 Mr Etherington's second argument is that cl 4.9.1(a) of LPS 4 provides power to extend the completion period for the approved development. That provision states as follows:
"A person must not -
(a) alter or extend a non-conforming use,
..."
32 The term "non-conforming use" has the same meaning in LPS 4 as it has in s 172 of the Planning and Development Act 2005 (WA) (PD Act) (LPS 4 Sch 1), namely, "a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7".
33 Clauses 6 and 7 of Sch 7 of the PD Act concern -
• zoning of the scheme area for appropriate purposes;
• designation of uses in zones as permitted, prohibited or requiring approval; and
• controls for land or site management for matters to which the PD Act relates.
(Page 9)
34 Mr Etherington submits that the use of the site under the 2004 planning consent for grouped dwellings is a "non-conforming use", because the land is zoned "Mixed Use" and is subject to a residential density code of "R25" under LPS 4.
35 However, "grouped dwellings" is a use that is capable of approval in the exercise of planning discretion in the "Mixed Use" zone after giving special notice in accordance with cl 9.4 of LPS 4 (cl 4.3.1 - cl 4.3.3). Furthermore, the definition of "non-conforming use" does not include non-conformity with a provision of a local planning scheme that deals with density of development. Standards for development, including standards in respect of "number", are matters specified in Sch 7 cl 8 of the PD Act, not in cl 6 or cl 7. The approved use under the 2004 planning consent is not a "non-conforming use" under LPS 4.
36 Mr Etherington's third argument is that, notwithstanding the revocation of TPS 3 - including cl 92 of that scheme - the Council retains power to extend the lapsing period referred to in that clause. Mr Etherington contends that on the grant of development approval under TPS 3, "the development approval is impliedly conditioned in accordance with cl 92 of TPS 3". He submits that the extension of the validity period under cl 92 of TPS 3 is a "discretion manifested in the approval for reasons of flexibility and administration of development under TPS 3".
37 In contrast, Mr A Roberts, counsel for the City, submits that cl 92 of TPS 3 no longer confers power to extend the planning consent, because that clause was revoked on 8 March 2007, and the planning consent is the product, rather than the repository, of powers previously conferred by TPS 3.
38 Mr Etherington's argument that the development approval is impliedly conditioned in accordance with cl 92 of TPS 3 is novel. However, on balance, the Tribunal considers that it is correct for the following reasons.
39 While it is common for planning schemes to require, or to contemplate conditions of approval that require, an approved development to be commenced or substantially commenced within a nominated period, it is extremely unusual for a planning scheme to require an approved development to be completed within a nominated period. It may be appropriate, in the exercise of planning discretion, to impose such a condition, particularly where it is anticipated that the planning framework or the character of the locality may change over time. However, it is extremely
(Page 10)
- unusual for a planning scheme itself to require that an approved development must be completed within a nominated period.
40 At the time when TPS 3 was gazetted on 18 December 1987, s 7AA(1) of the Town Planning and Development Act 1928 (WA) required that a town planning scheme had to be examined in each fifth year following the date on which it was last published in the Gazette,with the approval of the Minister. Although it ultimately took 20 years to replace TPS 3, it was, therefore, reasonably anticipated when it was made that it would be reviewed, and potentially replaced, within a relatively short period of time.
41 The capacity to extend a consent referred to in cl 92 of TPS 3 was intended to mitigate potentially undesirable planning consequences - such as only partial completion of buildings - of the highly unusual requirement that an approved building must be completed within two years or within such time as stipulated by the Council at the time of the approval. It was also intended, as Mr Etherington submits, to provide flexibility in the administration of development under TPS 3.
42 These factors cause the Tribunal to determine that the legislative intention of TPS 3 was that every consent granted under it was impliedly conditioned so as to enable the Council to extend the consent to preclude it from lapsing. As the imposition of a completion period in a planning scheme is highly unusual, TPS 3 was required to be examined after five years, and current development approvals can, as occurred in this case, straddle planning schemes, TPS 3 manifested an intention that every consent under that instrument was conditioned to enable the Council to extend a current consent, even if TPS 3 was revoked by a subsequent planning instrument in the interim. Otherwise the evident beneficial intention of cl 92 of TPS 3 to mitigate potentially undesirable planning consequences and provide flexibility would be undermined in a case such as the present.
43 Furthermore, cl 4.8.1 of LPS 4 states, in part, as follows:
"Except as otherwise provided in the Scheme, no provision of the Scheme is to be taken to prevent -
…
(b) the carrying out of any development on that land for which, immediately prior to the gazettal date, an approval or approvals, lawfully required to authorise the
- development to be carried out, were duly obtained and are current,
- …"
44 During the hearing, the Tribunal explored with counsel for the parties whether this provision has the effect of continuing the power of extension conferred by cl 92 of TPS 3 in relation to a current consent granted under TPS 3, because otherwise LPS 4 might prevent the carrying out of the approved development.
45 Mr Etherington supported this proposition. In contrast, Mr Roberts submitted that LPS 4 does not prevent the approved development from being carried out. The approved development can, in fact, be carried out at present, and until 7 December 2008. Mr Roberts argued that what might prevent the approved development from being carried out is the time period for completion stipulated by the Council under cl 92 of TPS 3 and subsequently extended by the Council under that clause until 7 December 2008. Mr Roberts submitted that for a provision of LPS 4 to "prevent" the carrying out of a development, it must actively and directly have that effect, rather than indirectly by revoking a facultative provision that could have allowed an extension of the approved development.
46 The Tribunal considers that cl 4.8.1(b) of LPS 4 has the effect of continuing the power of extension conferred by cl 92 of TPS 3 in relation to a current consent granted under TPS 3. The "carrying out" of the approved development on the site includes the completion of the buildings and the use of the buildings for residential purposes. By revoking TPS 3, including cl 92, cl 1.1.2 of LPS 4 might, subject to cl 4.8.1(b) of LPS 4, prevent the completion of the approved development and residential use of the approved buildings by not enabling the Council to extend the completion period of the approved development under cl 92 of TPS 3.
47 It follows that, for each of two reasons, the City has power to extend the completion period for the approved development to 7 December 2009.
Orders
The Tribunal makes the following orders:
1. The preliminary issue is answered as follows:
"The Council has power to extend the completion period for the approved development."
(Page 12)
- 2. Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision by 26 June 2008.
3. The proceedings are adjourned to a further directions hearing at 10.30 am on 27 June 2008 in order to await the reconsideration of the decision.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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