| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BARTULOVIC and CITY OF STIRLING [2009] WASAT 256 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 DECEMBER 2009 FILE NO/S : DR 386 of 2009 BETWEEN : DENNIS JOHN BARTULOVIC Applicant
AND
CITY OF STIRLING
Respondent
Catchwords: Review by judicial member of determination of Tribunal upon a matter involving a question of law Town planning Signage 'Created roof sign' Whether any question of law raised Legislation: City of Stirling District Planning Scheme No 2, Sch 11 cl 4.0, cl 5.1.3, cl 5.2.1, cl 5.2.1(b), cl 6.1, cl 21, Table 11.1
Planning and Development Act 2005 (WA), s 244, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 3(1)
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Result: Application for review of Tribunal's determination dismissed Category: B
Representation: Counsel:
Applicant : Mr JCW Skinner
Respondent : Mr A Roberts
Solicitors:
Applicant : Jackson McDonald
Respondent : McLeods
Case(s) referred to in decision(s):
Bartulovic and City of Stirling [2009] WASAT 173
WR Carpenter Properties Pty Ltd and Shire of Busselton [2005] WASAT 266
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REASONS FOR DECISION:
Summary of Tribunal's (judicial member's) decision 1 Mr Dennis Bartulovic applied for review by a judicial member of the determination of the Tribunal to refuse his application for a roof sign at the corner of Hutton Street and Scarborough Beach Road, Osborne Park. Mr Bartulovic filed submissions, but failed to provide a statement of the grounds for review clearly identifying the question or questions of law said to be involved. The President therefore had to address each of Mr Bartulovic's substantive contentions under Mr Bartulovic's headings. 2 The President determined that the application for review did not disclose any question of law in relation to the determination by the Tribunal that was susceptible to review. The Tribunal had proper regard to all relevant planning considerations. It was not open to review the merits of the Tribunal's decision. 3 The President therefore affirmed the decision of the Tribunal.
Application for review by judicial member 4 Mr Dennis Bartulovic has made an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review by a judicial member of the determination made by the Tribunal on 8 September 2009 in Bartulovic and City of Stirling [2009] WASAT 173 (reasons). In its determination, the Tribunal affirmed the decision of the City of Stirling (City or Council) to refuse Mr Bartulovic's application for the approval of a 44.95 square metre 'created roof sign' as part of a sign strategy submitted for approval in accordance with the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme) in respect of the building at No 428 Scarborough Beach Road, cnr Hutton Street, Osborne Park (site). The Council granted approval to the sign strategy insofar as it proposed two other created roof signs on the site. The two created roof signs approved by the City as part of the sign strategy faced Scarborough Beach Road to the east and west. The third created roof sign refused by the Council as part of the sign strategy faced north-east to Hutton Street. The determination made by the Tribunal was in respect of Mr Bartulovic's application for review, made under s 252(1) of the PD Act, of the City's decision to refuse approval for the third sign as part of the sign strategy. 5 In about 1987, a triangular shaped frame with an apex facing Scarborough Beach Road was erected on the roof of the building on the (Page 4)
site. On this frame were attached billboards for the purpose of above roof signs. The three faces of the rooftop structure were visible from the east in Scarborough Beach Road, from the west in Scarborough Beach Road, and from Hutton Street to the northeast. Boards for signs on the three faces were each 36 square metres. In 2007, the Council granted development approval under DPS 2 for the refurbishment of the building on the site (2007 development approval). Mr Bartulovic described this work as essentially stripping the building back to its structural elements and rebuilding it: reasons at [13]. The Tribunal found that, following the carrying out of the approved refurbishment, 'the building now bears little resemblance to the previous building': reasons at [16]. 6 Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Member Jim Jordan, who is not a legally qualified member. 7 In his application for review by a judicial member, Mr Bartulovic seeks that the determination of the Tribunal should be set aside and that a decision should be substituted for it either: 8 Contrary to the requirement in para [7(a)] of Practice Note 4 Review of decisions of the Tribunal under s 244 of the Planning and Development Act 2005, Mr Bartulovic did not provide the Tribunal or the City with 'a statement of the grounds for review clearly identifying the question or questions of law said to be involved'. While the City sought, in its submissions, to formulate Mr Bartulovic's grounds for review, these grounds may not fully capture Mr Bartulovic's contentions. Ultimately, although not desirable, it is most convenient to address each of Mr Bartulovic's substantive contentions under the two headings in the attachment to his application for review, namely 'Application not necessary' and 'Grant of approval'. (Page 5)
Application not necessary 9 Mr Bartulovic advanced two contentions under this heading. First, Mr Bartulovic argued that: The Tribunal ought to have found, and erred in law in not finding, that the effect of the [2007 development approval] was to approve the proposal to replace the existing above-roof signage structure on the existing building with the signage incorporated into the building structure for the refurbished building to provide three faces of advertisement, as proposed by the Refurbishment. 10 The first point to be made in relation to this contention is that it does not appear to have been argued before Member Jordan. The applicant in his statement of issues facts and contentions agreed that 'the application lodged with this City on 20 July 2009 did not entail any proposals relating to signage on the property'. In any case, a determination of whether a proposed development was approved by a previous development approval is not a determination upon a matter involving a question of law that is susceptible to review under s 244 of the PD Act. Unlike the issue determined by the Tribunal in WR Carpenter Properties Pty Ltd and Shire of Busselton [2005] WASAT 266 (WR Carpenter Properties), the question of whether a proposed development was previously approved is not jurisdictional. Unlike the situation in WR Carpenter Properties, the Council (and the Tribunal on review) would have power to approve a development previously approved by the Council. The approval of such a development application would not be a legal nullity, but simply unnecessary. 11 Furthermore, the effect of the 2007 development approval could not have been to approve the three created roof signs which were the subject of the subsequent sign strategy. This is because, as noted at [23] of the reasons, the proposed signs are identified by the symbol 'SS' in relation to land within the subject General Industry zone in Table 11.1 of DPS 2, meaning that 'the sign type is not permitted by the Scheme unless a sign strategy, acceptable to the Council, for the whole site is submitted': cl 5.2.1(b) of Sch 11 of DPS 2. 12 A sign strategy was not submitted to the Council prior to the granting of the 2007 development approval. Indeed, the sign strategy was not submitted until 23 October 2008. Further, while Mr Bartulovic submitted that relevant information, although not entitled 'sign strategy', was submitted to the City as part of the application for development approval granted in 2007, even assuming that this information constituted a 'sign (Page 6)
strategy' for the purposes of the Scheme, condition 7 imposed by the Council in relation to the 2007 development approval shows that the information submitted by Mr Bartulovic at that time in relation to signage was not 'acceptable to the Council' (as required by cl 5.2.1(b) of Sch 11 of the Scheme). Condition 7 was in the following terms: A separate signage strategy to be submitted to the City for approval prior to the issue of any sign licences. In addition, all unauthorised signage on the site is to be removed. 13 Second, Mr Bartulovic contended that: The Tribunal ought to have found, and erred in law in not finding, that Condition 7 of the [2007 development approval] did no more than require a signage strategy to be submitted prior to the issue of any sign licences, and in addition require the removal of unauthorised signage on the Land. Condition 7 did not require any further planning approval relating to any signage proposed (and approved) as part of the Refurbishment. (original emphasis) 14 The first point to be made in relation to this contention is that it, too, does not appear to have been addressed to the Tribunal. Accordingly, the Tribunal does not appear to have made any finding in relation to condition 7, other than that the signage strategy which gave rise to the application for review before the Tribunal was lodged by Mr Bartulovic with the City following condition 7 of the 2007 development approval. In any case, this contention does not involve any question of law that is susceptible to review under s 244 of the PD Act. As noted earlier, even if the 2007 development approval had approved the proposed created roof sign, the application before the Tribunal could still be considered on its merits. Furthermore, read in the context of cl 5.2.1 of Sch 11 of DPS 2, condition 7 simply reflected the requirement of the Scheme for the submission and approval by the Council of a sign strategy. As the Scheme requires the submission of a sign strategy acceptable to the Council in order for the proposed sign type to be permitted, the submission of a sign strategy under DPS 2 involves the making of a development application for signage.
Grant of approval 15 Mr Bartulovic contended that: The Tribunal correctly found (at par [37] – [38] of the Decision) that the Above Roof Structure had been approved and that sign licences had been previously issued by the Respondent for the west-north-west and south-south-east Above Roof Signs and so treated the north-west and south-east (Page 7)
Created Roof Signs as continuations of existing approved advertisement signs under cl 6.1 of Sch 11 of DPS 2. At par [39] to [40] of the Decision, however, the Tribunal erred in law in not reaching the same conclusion in respect of the north-east Above Roof Sign and, in relation to the north-east Created Roof Sign, stating that 'the Tribunal does not consider this matter to be merely consideration of whether to approve the continuation of an existing sign' and that 'the Tribunal considers the proposed sign should be approached differently from the respondent's approach when considering the two other created roof signs' … 16 These contentions reflect a number of misconceptions about the Tribunal's findings and, in any case, do not involve any question of law. The Tribunal did not find that the former above roof advertising structure was lawful. Indeed, at [38], the Tribunal said explicitly that it 'has not found it possible on the evidence to determine whether the above roof structure was lawful'. The Tribunal did not treat the other two created roof signs in the sign strategy 'as continuations of existing approved advertisement signs under cl 6.1 of Sch 11 of DPS 2'. Indeed, the Tribunal did not 'treat' the other signs in any way other than noting that they had been approved by the Council. While the other two signs formed part of the sign strategy, their approval or refusal was not a matter contended by either party. Furthermore, Mr Bartulovic has quoted rather selectively from the Tribunal's reasons. It is appropriate to set out the whole of [40] [41] of the reasons: (Page 8)
regard to be had to the character and amenity of the surrounding locality when considering an application. 17 It is clear from these paragraphs of the reasons that the Tribunal was well aware that there was a previous signage structure facing north-east to Hutton Street prior to the refurbishment of the building on the site. It is also apparent that the Tribunal regarded that as a relevant matter for consideration. However, the Tribunal considered that there were other relevant merit considerations beyond the fact that there was previously a signage structure facing in the same direction as the proposed sign. The other considerations included that there had not been any advertisement displayed on the northeast facing billboard since at least 2000, that the proposed sign would be 9 square metres larger than the former sign, and that the Scheme contemplated a significantly smaller sign of only 9 square metres, although there was discretion to vary that standard. Each of these considerations was relevant in the determination of the matter. 18 Next, Mr Bartulovic contended that 'the north-east face of the Created Roof Structure is a continuation of an existing approved advertisement sign under cl 6.1 of Sch 11 of DPS 2'. That clause states that 'advertisement signs' (which include 'any structure used or adapted for the display of advertisements': cl 2.1 of Sch 11 of DPS 2) which 'were lawfully erected, placed or displayed prior to the approval of this Schedule … may except as otherwise provided in the Scheme, continue to be displayed … '. However, as noted earlier, the Tribunal did not find that the former advertising structure was lawful. Furthermore, the former structure had been removed and replaced with a new structure. 19 Finally, Mr Bartulovic sought to make a number of contentions that clearly do not involve any question of law, but rather, involve a challenge to the Tribunal's findings in relation to whether to approve the proposed sign in the exercise of planning discretion. It is unnecessary to set out each of these contentions. It is sufficient to record that the Tribunal had proper regard to all relevant planning considerations, including the previous existence of an advertising structure facing northeast on the site, the previous display of advertisements on that structure, the differences between the former structure and the proposed created roof sign, and the amenity of the locality and the impact of the proposal on that amenity.
Conclusion 20 The application for review by a judicial member does not disclose any question of law in relation to the determination by the Tribunal that is susceptible to review under s 244 of the PD Act. Ultimately, (Page 9)
Mr Bartulovic seeks review of the merits of the Tribunal's decision to refuse a created roof sign on the site. Section 244 of the PD Act does not enable such a review.
Order 21 I make the following order: 1. The application for review is dismissed and the determination of the Tribunal in Bartulovic and City of Stirling [2009] WASAT 173 is affirmed. |