BGC (AUSTRALIA) PTY LTD and TOWN OF KWINANA
[2011] WASAT 71
•29 APRIL 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BGC (AUSTRALIA) PTY LTD and TOWN OF KWINANA [2011] WASAT 71
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 29 APRIL 2011
FILE NO/S: DR 5 of 2011
BETWEEN: BGC (AUSTRALIA) PTY LTD
Applicant
AND
TOWN OF KWINANA
Respondent
Catchwords:
Town planning - Preliminary issue - Development application - Erection of warehouse for processing, bagging and storage of cement dry mix product on land used for cement manufacturing and processing - Front building setback - Whether there is discretion to vary the front setback requirement under the local planning scheme
Legislation:
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31
Town of Kwinana Town Planning Scheme No 2, cl 1.6(c), cl 6.2, cl 6.3.1, cl 6.3.2, cl 6.8.5
Result:
There is discretion under cl 6.3.2 of the Town of Kwinana Town Planning Scheme No 2 (TPS 2) to vary the minimum front setback requirement prescribed by cl 6.3.1 and Table 2 of TPS 2
Category: B
Representation:
Counsel:
Applicant: Mr MC Hotchkin
Respondent: Mr DP Gillett
Solicitors:
Applicant: Hotchkin Hanly
Respondent: McLeods
Case(s) referred to in decision(s):
Anthony Hordern and Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal was called upon to determine, as a preliminary issue, whether there is discretion under a local planning scheme to vary the front setback requirement of the scheme in relation to a proposed development. The scheme contains:
•a provision allowing approval of a development that does not comply with a development standard prescribed by the scheme;
•a provision applying to all land in the scheme area enabling the variation of any building setback standard and requiring due regard to be given to nominated matters when considering an application for approval to a setback variation; and
•a provision applying to land in two zones, including the site, enabling the variation of 'minimum side and rear boundary setbacks' (but silent in relation to minimum front setbacks) provided that four nominated requirements are met 'in addition to the requirements of [the provision referred to in the preceding bullet point]'.
The Tribunal determined that, on the proper interpretation of the scheme:
•the provisions referred to in the second and third bullet points in paragraph 1 apply to the exclusion of the provision referred to in the first bullet point; and
•the provision referred to in the third bullet point in paragraph 1 does not exclude variation of minimum front setback requirements under the provision referred to in the second bullet point, because its intention is to supplement, not to exclude or replace, the other provision, and because both provisions are intended to be beneficial for development.
The Tribunal, therefore, determined that there is discretion under the provision referred to in the second bullet point in paragraph 1 to vary the front setback requirement in relation to the proposed development. The Tribunal invited the local authority to reconsider its decision so that it could determine whether to vary the front setback requirement to the extent necessary to approve the proposed development.
Introduction
BGC (Australia) Pty Ltd (BGC) has sought review by the Tribunal of the decision of the Town of Kwinana (Town or Council) to refuse BGC's development application under the Town of Kwinana Town Planning Scheme No 2 (TPS 2 or Scheme) for the erection of a concrete and steel framed colorbond clad warehouse and for the processing, bagging and storage of cement dry mix product at Lot 32 Beard Street, Naval Base (site). The site has an area of over 6 hectares and is used by BGC for the purpose of cement manufacturing and processing. The site is zoned General Industry under TPS 2.
The proposed building would have a length of 60.96 metres, a width of 51.6 metres and an area of 3,145 square metres. Clause 6.3.1 of TPS 2 states that, in determining a development application, 'Council shall apply the minimum setback requirements as specified by Table No. 2'. The minimum front setback requirement specified by Table No 2 within the General Industry zone is 15 metres. However, Table No 2 also states that '[w]here the proposed use is consistent with light industry use the setback for the light industrial zone may apply'. The minimum front setback specified by Table No 2 for development within the Light Industry zone is 9 metres. The proposed building would have a setback of 3 metres from the front, that is, the Beard Street boundary, of the site. Approximately 1,830 square metres of the area of the proposed building would be located within 15 metres of the Beard Street boundary.
Clause 6.2 of TPS 2 states as follows:
6.2DISCRETION TO MODIFY DEVELOPMENT STANDARDS
If a development, other than a residential development, the subject of an application for Planning Approval, does not comply with a standard or requirement prescribed by the Scheme with respect to that development the Council may, notwithstanding that noncompliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied that:-
(a)approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenity of the locality;
(b)the noncompliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality; and
(c)the spirit and purpose of the requirement or standard will not be unreasonably departed from thereby.
Clause 6.3.2 of TPS 2 states as follows:
6.3.2Notwithstanding Clause 6.3.1, Council may by absolute majority of Council approve a variation in building setback less than that shown in Table No.2.
When considering an application for approval to setback variations, Council shall have due regard to the following:
(i)The effect on the privacy of adjoining lots.
(ii)The effect on the amenity of adjoining land through overshadowing.
(iii)The extent of noise transmission.
(iv)The effect on the streetscape.
(v)Possible obstruction or hindrance to movement, use or activity on adjacent land.
(vi)Undercutting or overbearing of development on adjoining land.
(vii)The discharge of stormwater runoff onto adjoining land.
(viii)Obstruction of the safe movement of traffic.
(ix)The position of existing buildings and structures.
(x)The requirements of any servicing authority.
Clause 6.8.5 of TPS 2 states as follows:
6.8.5Minimum Setbacks from Boundaries
Within the Industrial Zones, Council may, at its absolute discretion, vary minimum side and rear boundary setbacks less than that shown in Table 2, provided the following requirements are met, in addition to the requirements of Clause 6.3.2:
(i)The reduced setback applies to not more than one lot boundary per free standing building and not more than two boundaries per lot;
(ii)The development on the lot does not exceed the maximum permissible site coverage and maximum permissible plot ratio specified in Clause 6.8.1;
(iii)The method of construction and materials used comply with fire resistance level requirements of the Building Code of Australia;
(iv)The wall facing the boundary to which a reduced setback is granted does not exceed six (6) metres in height.
The Town's sole reason for refusal of the proposed development was as follows:
The proposed front setback of the Warehouse does not comply with the minimum 15m setback required under Clause 6.3.1 Table 2 Minimum Setbacks from Boundaries of the Town of Kwinana Town Planning Scheme No. 2.
At the first directions hearing, the parties identified the following two preliminary issues for determination on the documents:
1)What is the minimum front setback requirement in relation to the proposed development under cl 6.3.1 of TPS 2?
2)Is there discretion under TPS 2 to vary the front setback requirement in relation to the proposed development?
Parties' submissions
BGC raised the first preliminary issue at a time when it was represented by a town planning consultant, rather than by a lawyer. In his submissions in relation to the preliminary issues, Mr MC Hotchkin, counsel for BGC, submitted, correctly, that the Tribunal cannot determine whether the proposed use is 'consistent with light industry use', within the meaning of Table No 2, and therefore cannot determine whether the minimum front setback requirement in relation to the proposed development under cl 6.3.1 and Table No 2 of TPS 2 is 15 metres (General Industry) or 9 metres (Light Industry), as a preliminary issue. As Mr Hotchkin said, this issue 'requires evidence of what the proposed use entails, and findings of fact in respect of the proposed use'.
In relation to the issue of whether there is discretion under TPS 2 to vary the front setback requirement in relation to the proposed development, Mr Hotchkin submitted that 'the issue is not whether this Tribunal has discretion to "vary" the minimum front setback requirement, but rather whether it has discretion to "approve" any proposed development which has a front setback requirement that is less than the minimum standard specified in Table II of TPS 2'. Mr Hotchkin suggested that 'the question ought properly to be phrased in terms of a discretion to grant approval, rather than a discretion to "vary" the standard, in order to directly address the issue required for determination'. Mr Hotchkin submitted that there is discretion to approve the proposed development under both cl 6.2 and cl 6.3.2 of TPS 2.
Mr DP Gillett, counsel for the Town, submitted that there is no discretion under the Scheme to approve development in the General Industry zone which does not comply with the front setback requirement specified in Table No 2. In particular, Mr Gillett submitted that, on the proper interpretation of TPS 2, 'clauses 6.8.5 and 6.3.2 of the Scheme apply to the exclusion of clause 6.2'. Mr Gillett also submitted that the effect of cl 6.8.5 of TPS 2, which refers only to the variation '[w]ithin the Industrial Zones … [of] minimum side and rear boundary setbacks less than that shown in Table No 2 … ', and is silent in relation to the variation of minimum front boundary setbacks, is that there is no discretion available under the Scheme to vary the front boundary setbacks prescribed by cl 6.3.1 and Table No 2 within the General Industry and Light Industry zones.
Mr Gillett submitted that, to interpret cl 6.8.5 of the Scheme in a manner that would enable the exercise of discretion in relation to the minimum front setback requirements of Table No 2 in the General Industry zone 'would lead to an absurd and unintended result which, in effect, makes it easier to vary the front setback for development on land zoned General Industry than it is to vary the side and rear setbacks in that zone'. Mr Gillett submitted that 'such an interpretation would be contrary to the intent and purpose of the Scheme and would produce a result which is contrary to the objectives of the Scheme'. He referred, in this regard in particular, to the objective of the Scheme, stated in cl 1.6(c), of 'providing development controls for the purpose of securing and maintaining an orderly and proper planned use and development of land within the Scheme Area'. Mr Gillett also referred to paragraph (g) of the Policy Statement for Area 15 Kwinana Industrial Strip, which applies to the site, that '[i]ndustrial developments shall be designed and constructed so as to minimise their visual impact on the locality and to blend harmoniously with the locality'. Mr Gillett submitted that the minimum setback requirement prescribed by cl 6.3.1 and Table No 2 of TPS 2 'is consistent with … [this] Policy Statement and ensures development within the General Industry zone presents a streetscape which is designed and constructed in a way that minimises visual impact of development within that zone and ensures that development blends harmoniously within that zone'.
Is there discretion to vary the front setback requirement?
The Town is correct in its contention that, on the proper interpretation of the Scheme, cl 6.3.2 and cl 6.8.5 apply to the exclusion of cl 6.2. As Gavan Duffy CJ and Dixon J held in Anthony Hordern and Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
Clause 6.3.2 and cl 6.8.5 of TPS 2 enable the variation of setback requirements prescribed by cl 6.3.1 and Table No 2 subject to restrictions, in terms of matters for consideration or requirements to be met, which are not contained within the more general provision conferring discretion to modify development standards in cl 6.2 of the Scheme.
Contrary to BGC's submission, the second issue identified earlier, namely, whether there is 'discretion under TPS 2 to vary the front setback requirement in relation to the proposed development', is correctly expressed in terms of the relevant provisions of the Scheme. Both cl 6.3.2 and cl 6.8.5 of TPS 2 use the term 'vary' in relation to building setbacks prescribed by cl 6.3.1 and Table No 2. If there is discretion under the Scheme to vary the minimum front setback requirement prescribed by cl 6.3.1 and Table No 2 of TPS 2 in relation to the proposed development, then the Council (and the Tribunal on review) is empowered by the Scheme to grant development approval for the proposed development under the Scheme.
The Tribunal considers that, on its proper interpretation, cl 6.8.5 of TPS 2 does not exclude variation, under cl 6.3.2 of the Scheme, of the minimum front setback requirement prescribed by cl 6.3.1 and Table No 2 of the Scheme in relation to the proposed development, for two reasons. First, it is apparent from the text of cl 6.8.5 of TPS 2 that this clause is intended to supplement cl 6.3.2 within the Industrial zones, not to exclude or replace it; cl 6.8.5 specifies four requirements 'in addition to the requirements of Clause 6.3.2', in relation to the variation of minimum side and rear boundary setbacks. Secondly, both cl 6.3.2 and cl 6.8.5 of TPS 2 are clearly intended to be beneficial for development by conferring discretion to vary development standards prescribed by cl 6.3.1 and Table No 2, subject to specific matters for consideration or requirements to be met. It would be contrary to the beneficial intent of these provisions to interpret the absence of reference to variation of front setback requirements in cl 6.8.5 of TPS 2 as intending to exclude the availability of any discretion under the Scheme to vary front setback requirements within the Industrial zones.
This interpretation does not lead to an 'absurd and unintended result'. It is not 'absurd' to impose additional requirements to vary side and rear boundary setback standards in the Industrial zones. Clause 6.3.2 of TPS 2 itself imposes requirements for consideration of matters clearly relevant to front setbacks, for example 'the effect on the streetscape', 'obstruction of the safe movement of traffic' and 'the requirements of any servicing authority'. These required matters for consideration may well have been thought sufficient for the variation of front setback standards at the time when cl 6.8.5 was introduced into the Scheme. Furthermore, as evidenced by cl 6.3.2 and cl 6.8.5 of TPS 2, the Scheme does not consider it necessary to secure and maintain an orderly and proper planned use of development of land to preclude any variation to setback requirements on land within the General Industry zone. In particular, a lesser setback than 15 metres may, depending on the circumstances of a development site, still minimise visual impact on the locality and blend harmoniously with the locality.
Whether, having due regard to relevant matters set out in cl 6.3.2 of TPS 2, the front setback requirement should be varied so as to enable approval of the proposed development is a matter which now requires consideration. As the Town has not turned its mind to this issue, it is appropriate to invite the Council to reconsider its decision in accordance with s 31 of the State Administrative Tribunal Act 2004 (WA).
Orders
The Tribunal makes the following orders:
1.There is discretion under cl 6.3.2 of the Town of Kwinana Town Planning Scheme No 2 to vary the front setback requirement prescribed by cl 6.3.1 and Table No 2 of the Scheme in relation to the proposed development.
2.Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision on or before 25 May 2011.
3.The proceeding is adjourned to a directions hearing at 11.30 am on 27 May 2011 in order to await the reconsideration.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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