Branca and City Of Stirling
[2008] WASAT 31
•12 FEBRUARY 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BRANCA and CITY OF STIRLING [2008] WASAT 31
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 12 FEBRUARY 2008
FILE NO/S: DR 333 of 2007
BETWEEN: RAFFAELE BRANCA
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Question of law - Town planning - Development application - Demolition of house and erection of grouped dwellings - Heritage Protection Area - Interpretation - Whether local planning scheme permits approval of development application for demolition of house without approval of development application for replacement building(s) - Practice and procedure - Applicant's agent stated in SAT application that application is "class 1 planning application" about development with a value of less than $250 000, whereas applicant stated in development application that the approximate cost of the development is $600 000 - Applicant elected in SAT application that no party be represented by a legal practitioner - If cost of development is $600 000, SAT application is "class 2 planning application" and election not available - Proceedings referred to President for consideration as to whether application is "class 1 planning application" or "class 2 planning application" and consequent matters
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.1.11.2, cl 1.3.5.1, cl 2.2.3.2, cl 2.2.3.4, Sch B, Sch 17
Planning and Development Act 2005 (WA), s 238(3)(a), s 238(3)(a)(i), s 239(1), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 24, s 59
State Administrative Tribunal Regulations 2004 (WA), reg 10
Result:
Local planning scheme permits approval to commence development to be granted for the demolition of an existing building without an earlier or simultaneous approval being granted for the construction of a new building on the same site
Category: B
Representation:
Counsel:
Applicant: Mr SJ Bain (Acting as Agent)
Respondent: Ms L McGrath (Public Sector Employee)
Solicitors:
Applicant: SJB Town Planning & Urban Design (Town Planners)
Respondent: City of Stirling
Case(s) referred to in decision(s):
Fryer and City of Subiaco [2006] WASAT 199
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
A question of law emerged during the final hearing of an application for review of the refusal of a development application for demolition of a house and erection of two grouped dwellings on land in a Heritage Protection Area. The question of law is whether the local planning scheme permits approval of a development application for demolition in the absence of approval of a development application for a replacement building.
The member who conducted the hearing is not a legally qualified member. The member concluded the hearing in relation to the merits of the application, referred the question of law to the President, and reserved his decision with effect from the determination of the question of law. The President gave the question of law to a legally qualified senior member for determination.
The Tribunal determined that the scheme permits approval to commence development to be granted for the demolition of an existing building without an earlier or simultaneous approval being granted to commence construction of a new building on the same site. However, without commenting on the merits of the case, the Tribunal noted that, in appropriate circumstances, it is within the planning discretion of a consent authority to refuse a development application for demolition in a Heritage Protection Area in the absence of approval of an appropriate replacement building and the conditioning of the demolition on the erection of the replacement building within a reasonable period of demolition.
The Tribunal noted that the proceedings were commenced as a "class 1 planning application" with a nominated value of less than $250 000 and, in consequence, the applicant elected that no party is to be represented by a legal practitioner. However, the development application indicated that the value of the development is $600 000, in which case the applicant could not elect that no party is to be represented by a legal practitioner. The proceedings were, therefore, referred to the President to consider the "class" of the application and consequent matters.
Question of law
The following question of law has been identified for determination in planning review proceedings before the Tribunal:
Whether cl 2.2.3.4 of the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme) permits approval to commence development to be granted for the demolition of an existing building without an earlier or simultaneous approval being granted for the construction of a new building on the same site.
A senior sessional member of the Tribunal, who is not a legally qualified member, referred this question of law to the President for determination in accordance with s 59(8) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The President, in turn, gave the question of law to me to determine in accordance with s 59(10)(a) of the SAT Act.
Background
On 6 March 2007, Mr R Branca made a development application to the City of Stirling (City or Council) for approval for "demolition and construction of two dwellings" at No 203 Ninth Avenue, Inglewood (site). The site is a corner lot with frontage to both Ninth Avenue and Clifton Crescent. The site is located in the Inglewood Heritage Protection Area (HPA) under the Scheme.
The development application form signed by Mr Branca states that the approximate cost of the development (excluding land) is $600 000.
On 31 August 2007, the City refused development approval for the proposed development for the reason that it is not in accordance with cl 2.2.3.2 of DPS 2 and does not conform to the objectives of the Character Retention Design Guidelines adopted by the Council and referred to in that clause.
On 2 October 2007, Mr Branca applied to the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the City's decision. The application to the Tribunal appears to have been signed and completed by Mr SJ Bain, Mr Branca's consultant town planner. The decision sought in the application is "approve the proposed development". The application states that it is a "class 1 planning application", and in particular, that it is about "development of a value less than $250 000" (see PD Act s 238(3)(a)(i)). Section 239(1) of the PD Act enables an applicant in a
"class 1 planning application" to elect, at the time the application is made, that no party to the application is to be represented by a legal practitioner. Mr Branca elected in the application that no party is to be represented by a legal practitioner.
The matter proceeded to a final hearing before Senior Sessional Member Mr P de Villiers on 5 December 2007 and 16 January 2008. It appears that, on the first hearing day, there was discussion between the senior sessional member and the parties' representatives in relation to the meaning and effect of cl 2.2.3.4 of the Scheme. This clause states as follows:
"In addition to the provisions of Clause 1.3.5, an application to demolish a building in a Heritage Protection Area must be accompanied by an application for Council's prior approval to commence development for that site. The Council shall not issue a demolition licence for a site, if the application for Council's prior approval to commence development for that site has not been approved."
It appears that the senior sessional member indicated that this clause may mean that the City may not issue a development approval for the demolition of a house in a Heritage Protection Area without first, or simultaneously, issuing a development approval for a replacement building. Both parties disagreed with this interpretation. Following the first hearing day, the City requested the senior sessional member to refer the question of law stated at [5] above to the President in accordance with s 59(8) of the SAT Act.
Following the second hearing day, Senior Sessional Member de Villiers referred the question of law to the President and reserved the Tribunal's decision in relation to the merits of the review application with effect from the publication of the decision in relation to the question of law.
As noted earlier, the President gave the question of law to me for determination in accordance with s 59(10)(a) of the SAT Act. The City has filed submissions in relation to the question of law with which Mr Bain, on behalf of Mr Branca, agrees.
Can a development application for demolition be approved in the absence of approval of a development application for a replacement building?
I agree with the joint position of the parties that cl 2.2.3.4 of the Scheme permits approval of a development application for demolition of a house in a Heritage Protection Area without prior or simultaneous approval of a development application for a replacement building on the same land.
In order for cl 2.2.3.4 to preclude approval of a development application for demolition in the absence of a prior or simultaneous approval of a development application for a replacement building:
(a)the expression "an application to demolish a building" in the first sentence must refer to a development application for demolition, or using the terminology of the Scheme, "an application for Council's prior approval to commence development" for demolition;
and
(b)the expression "an application for Council's prior approval to commence development for that site" in the first and second sentences cannot include a development application for demolition.
On the proper interpretation of the clause, neither of these propositions is correct.
The expression "an application to demolish a building" in the first sentence of cl 2.2.3.4 is a reference to an application for a demolition licence and not to a development application for demolition. This is apparent from:
(a)the parallel reference to a "demolition licence" in the second sentence of cl 2.2.3.4; and
(b)the use of the separate expression "approval to commence development" in cl 2.2.3.4, which is the expression used in the Scheme for a development application (see cl 1.3.5.1(h), cl 1.3.5.1(i) and Sch 1B).
Furthermore, the expression "an application for Council's prior approval to commence development" in the first and second sentences of cl 2.2.3.4 includes a development application for demolition.
Clause 1.3.5.1(a) of the Scheme states that, subject to par (b), "all use or development of land zoned or reserved under this Scheme requires the prior approval of the Council". Clause 1.1.11.2 of DPS 2 defines the term "development" in the Scheme, unless the context otherwise requires, to include "… demolition … of any building …". Although cl 1.3.5.1(b) of DPS 2 states that the development listed in Sch 17 does not require approval, and cl 2.1.2 of Sch 17 excludes "demolition of a building" from the need to obtain development approval, an exception to this exclusion is "where the building is … located on land within a Heritage Protection Area".
It follows that development approval is required under the Scheme to demolish a building in a Heritage Protection Area. The expression "an application for Council's prior approval to commence development" in cl 2.2.3.4 of the Scheme, therefore, includes a development application for demolition.
On its literal interpretation, cl 2.2.3.4 of the Scheme precludes the Council from issuing a demolition licence for a site in a Heritage Protection Area unless it has previously or simultaneously approved a development application for demolition of the building in question. The clause does not preclude the Council from granting development approval for demolition in the absence of development approval for a replacement building on the site.
A purposive interpretation of cl 2.2.3.4 does not indicate a contrary result. The purpose of the clause appears to be to preclude the approval of a demolition licence for a building in a Heritage Protection Area without the Council having turned its mind to, and be satisfied that it is appropriate to approve, a development application for demolition in accordance with the Scheme.
The planning merit of the proposed development is a matter for the Tribunal constituted by Senior Sessional Member de Villiers. However, I note that, although cl 2.2.3.4 permits approval of a development application for demolition in the absence of prior or simultaneous approval of a development application for a replacement building, it is within the planning discretion of a development consent authority, in appropriate circumstances, to refuse development approval for demolition of a building in a Heritage Protection Area (or equivalent) in the absence of a linked, appropriate replacement building. In Fryer and City of Subiaco [2006] WASAT 199 at [38] ‑ [46], I considered an argument as to whether demolition of an early 20th Century single storey dwelling house in a street generally characterised by such houses is appropriate in the absence of approval of a replacement building or buildings. I determined, at [41] ‑ [42], as follows:
"In the circumstances of this case, it would be contrary to the orderly and proper planning of the locality and the conservation of the streetscape character of the locality, and therefore the conservation of its amenity, to allow demolition without also approving an appropriate replacement building, and the conditioning of the demolition on the erection of the replacement building within a reasonable period of demolition.
Whether the building has cultural heritage significance or not, it forms part of a relatively homogenous and consistent streetscape on Hammersley Road."
Depending on the circumstances of the case, similar considerations may arise in the exercise of planning discretion under DPS 2, having regard to the matters for consideration in cl 1.3.5.1(f), which relates to development applications generally, and cl 2.2.3.1 of DPS 2, which states the intention of the Council in relation to Heritage Protection Areas.
What "class" is the application?
As noted earlier, the application to the Tribunal states that the proceedings involve a "class 1 planning application" about "development of a value less than $250 000". However, as also noted earlier, the development application states that the approximate cost of the development (excluding land) is $600 000. Contrary to the Tribunal's Practice Note 1 ‑ Filing Supporting Documents, the application to SAT was not accompanied by a copy of the development application. Rather, the development application was only provided to SAT in the bundle of relevant documents filed by the City under s 24 of the SAT Act on 25 October 2007, after the directions hearing and before the final hearing in the proceedings.
If the application for review is of the determination of a development application to commence a development with a value of $250 000 or more, it is a "class 2 planning application" rather than a "class 1 planning application": see PD Act s 238(3)(a) and State Administrative Tribunal Regulations 2004 (WA) reg 10. If the application for review is a class 2 planning application, then Mr Branca could not elect, under s 239(1) of the PD Act, that no party to the application is to be represented by a legal practitioner. However, Mr Branca purported to make that election in the application and the matter has proceeded to a concluded final hearing on the assumption that the City is precluded from being represented by a legal practitioner in the proceedings.
In the circumstances, I consider that it is appropriate for the matter to be referred to the President to consider the "class" of the application, the circumstances in which the application was nominated as a "class 1 planning application" and consequent matters.
Conclusion
On its proper interpretation, cl 2.2.3.4 of DPS 2 permits approval to commence development to be granted for demolition of an existing building in a Heritage Protection Area without an earlier or simultaneous approval being granted for the construction of a new building on the same site.
The matter is referred to the President to consider the "class" of the application, the circumstances in which the application was identified as a "class 1 planning application" on the application form and consequent matters.
Orders
I make the following orders:
1.The question of law referred by Senior Sessional Member Mr P de Villiers to the President under s 59(8) of the State Administrative Tribunal Act 2004 (WA) and given by the President to Senior Member Mr David Parry for resolution under s 59(10)(a) of the State Administrative Tribunal Act 2004 is answered as follows:
On its proper interpretation, cl 2.2.3.4 of the City of Stirling District Planning Scheme No 2 permits approval to commence development to be granted for demolition of an existing building in a Heritage Protection Area without an earlier or simultaneous approval being granted to commence development for the construction of a new building on the site.
2.The proceedings are listed for a directions hearing before the President at 10.30 am on 19 February 2008 in order to consider whether the proceedings involve a "class 1 planning application" or a "class 2 planning application", the circumstances in which the proceedings were identified as a "class 1 planning application" on the application form and consequent matters.
3.The date with effect from which the Tribunal's decision in relation to the merits of the review application is reserved is extended to a date to be determined by the President.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER