Bridle and Anor and City of Stirling - [2010] WASAT 49

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BRIDLE & ANOR and CITY OF STIRLING [2010] WASAT 49

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 20 OCTOBER 2009

DELIVERED : 9 APRIL 2010

FILE NO/S: DR 467 of 2008

BETWEEN: GARY BRIDLE
RIC VAN DER FELTZ
Applicants
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Validity of development application - Requirement that application be signed by owner - Whether signature of agent sufficient - Whether lessee authorised to sign on behalf of owner

Legislation:

City of Perth Planning Scheme No 2, cl 37
City of Stirling Planning Scheme No 2, cl 1.3.5, cl 1.3.5.1, cl 1.3.5.1(c), cl 1.3.5.1(c)(ii)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Declaration that application is valid

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Self-represented

Solicitors:

Applicants: Self-represented
Respondent: Self-represented

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

Adbooth Pty Ltd and City of Perth [2006] WASAT 343
Bridle and City of Stirling [2009] WASAT 62
Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd (2002) 121 LGERA 176
Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71
Van der Feltz v City of Stirling [2009] WASC 142

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal was called upon to determine whether an application for development approval under the City of Stirling District Planning Scheme No 2 was valid.
The Scheme requires that applications be signed by the owner of the property the subject of the proposed development. In this case the application was signed by a lessee of the property as agent for the owner.
The Tribunal considered whether signature by an agent of the owners was sufficient for the purposes of the Scheme and if so whether the lessee had the authority to sign on behalf of the owner in this case. It concluded that signature by an agent did satisfy the scheme requirement, and on the facts of this case, the lessee was duly authorised to sign the application.

The issue for determination

Clause 1.3.5.1 of the City of Stirling District Planning Scheme No 2 (DPS 2) requires an application for approval under DPS 2 to be made in a prescribed form and to be signed by the owner of the land subject of the application. On 10 April 2008, an application for approval to commence development by way of a change of use of a property within the City of Stirling (City) was lodged. The application was signed by a tenant of the property on the basis that he purported to have the authority of the owner to lodge the application.
The application went through the City's assessment process. Before a decision was made, the City was advised that the property's owner had not authorised, and did not consent, to the proposed change of use.
In light of that advice, the City's officers formed the view that the application may not be valid. The City sought a declaration from the Tribunal as to the validity of the application. It is that question which falls for determination as a preliminary issue.

Background facts

This matter now has a long and involved history. It concerns a property at Lot 118, No 3, Guthrie Street, Osborne Park (Lot 118). The property is owned by Mrs Rosa Rispoli. By a lease dated 11 April 2006, Mrs Rispoli leased the property to Stephan Matthaus and D A (Ric) van der Feltz. The term of the lease was five years commencing on 1 May 2006, with two options to renew for further periods of five years. The lease contained a clause which restricted the use of the premises by the lessee for any purpose other than as specified in Item 5 of the schedule without the written consent of the lessor. Item 5 of the schedule permitted the following uses:
•production and sale of timber, steel and other products
•storage
•parking
•goods transfer
•other uses permitted within the zoning
The lease also contained a consent on the lessor's part to the assignment, subletting or parting with possession of the premises or any part of the premises.
It is apparent that at some stage in 2006, the lessees sublet a portion of the premises to Mr Gary Bridle for the purpose of conducting a drive through takeaway coffee outlet (coffee business).
In December 2006, a compliance officer with the City held a site inspection and discussions with Mr van der Feltz. In a letter from the compliance officer to Mrs Rispoli dated 3 January 2007, the construction of a building and decking to be used for the coffee business was noted. The letter indicated that the proposed business would not be permitted under the current zoning of the property, and that the structures appear to have been constructed without development approval or a building licence. The letter sought a response within 21 days.
On 14 March 2007, the City again wrote to the owner. The letter noted that no response had been received to the letter of 3 January 2007 and sought a response within seven days.
In early 2007, Mr Tony Italiano, a principal in the firm Market Realty was acting as property manager for the owner. According to Mr Italiano, who gave evidence at the hearing of the preliminary issue, which evidence I accept, he acted at all times on the instruction of Mrs Rispoli's son, Enrico Rispoli. Mr Italiano had known Enrico Rispoli for many years. Although Mr Italiano had met Mrs Rispoli at the time of his appointment, all his dealings in relation to Lot 118 and certain other properties which he managed on behalf of Mrs Rispoli, came from Enrico Rispoli. Enrico Rispoli is, himself, a real estate sales representative with a long experience in the real estate industry.
In March 2007, Enrico Rispoli brought the two letters from the City to Mr Italiano. Enrico Rispoli told Mr Italiano that neither his mother nor he wished to deal with the City in relation to the issues raised, and asked him to take care of the matter. Mr Italiano said that he was instructed to write to the City informing it that the tenants had the authority to deal with the property. Accordingly on 28 March 2007, Mr Italiano wrote to the City advising that his firm acted as property managers for the owner of Lot 118 and that the property was leased to Mr Matthaus and Mr van der Feltz. The letter continued:
Please refer all future correspondence etc relating to any of the compliance and development issues directly with the tenants as they have taken over the right to deal on the property as per the lease agreement.
Mr Italiano was in possession of a handwritten authority by Mrs Rispoli authorising him to 'act as managing agent for the property'. The date on that authority is not clear, but was either 1 March 2006 or 1 August 2006.
Eventually, in early May 2008, the application the subject of these proceedings was lodged with the City. The application was dated 10 April 2008, but appears to have been lodged with the respondent on 5 May 2008. The application shows Rosa Rispoli as owner of the land. The proposed development is described as a change of use for takeaway coffee. In the section marked 'signed by owner' Mr van der Feltz's signature appears with the words 'as authorised by owner see attached letters'. The letters attached were the letter to the City dated 28 March 2007 from Mr Italiano, and a copy of the handwritten authority appointing Mr Italiano as managing agent. The application for development was initially refused under delegated authority by the City on 14 November 2008 on the basis that the proposed business was properly classified as an 'X' use (a use not permitted) in the applicable zoning for the site. An application for a review of that decision was made to the Tribunal. That application was determined by a decision delivered on 8 April 2009 when the City's classification of the proposed use as a 'drive through fast food outlet' (being a prohibited use) was upheld by the Tribunal - see Bridle and City of Stirling [2009] WASAT 62.
An appeal was lodged against the Tribunal's decision, and on 22 May 2009, that appeal was upheld by the Supreme Court - see Van der Feltz v City of Stirling [2009] WASC 142. The Supreme Court held that the proposed use did not come within any of the defined uses in the use class table of DPS 2, and thus should be characterised as a 'use not lifted'. As such, the application for development was capable of approval by the respondent subject to compliance with certain notice and advertising requirements.
The matter was then referred back to the Tribunal in light of the Supreme Court's decision. Given that the City had refused the application for development on the basis that it was incapable of approval, and thus had not considered the planning merits of the application, the Tribunal invited the respondent to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)
At a meeting on 8 September 2009, the City further considered the application. At that stage, however, certain further information that had been requested by the respondent had not been received from the applicants for approval. Accordingly, the matter was held over to a council meeting to be held on 22 September 2009 to allow the officers to have further discussions with the applicant regarding the provision of certain further information and documents.
It was shortly after that meeting, that the City received contact from solicitors acting for 'Maria Rosa and Enrico Rispoli' suggesting that their clients had not authorised the change of use and had never done so.
Maria Rispoli is the daughter of Mrs Rispoli. According to Mr van der Feltz, in late 2008, Maria Rispoli, who, with Enrico Rispoli, holds a power of attorney for Mrs Rispoli, began creating problems for the tenants of Lot 118. He advised the Tribunal that up until that time, and in particular when the application for development approval was lodged, he enjoyed a good relationship with Enrico Rispoli, and had never received any complaints about the use of Lot 118.
It was at that point that the City referred the matter back to the Tribunal for clarification as to whether there was a valid application capable of being considered by the City. Mrs Rispoli was given notice of the hearing to determine the preliminary issue as to whether or not the application for development approval was valid. She did not appear at the hearing but did provide a letter to the Tribunal prior to the hearing. In the letter, she refers to her receipt of the letter from the City concerning the coffee business. She said that she did not understand the contents of the letter, so passed it on to her son Enrico who presented it to Mr Italiano. That is, of course, consistent with Mr Italiano's evidence that Mr Enrico Rispoli brought the correspondence from the City to him to deal with. Mrs Rispoli's letter then asserts that she and her daughter were shocked when, in late 2007, they drove past the property and noticed that a drive through coffee outlet had been established. The letter then refers to proceedings which were on foot between Mr van der Feltz and Ms Maria Rispoli. Mrs Rispoli denies any knowledge of the establishment of the coffee business, and says that in the period that Mr Italiano managed the property, he never informed her of any changes of activity at the property.
Mr Italiano's evidence was that, during the period that he managed the property, which ended in June 2008, he had many meetings on site with Mr Enrico Rispoli at which the coffee business was discussed or was established and operating from the site. He said that Mr Enrico Rispoli never queried or raised any objection to the operation of the business. Until shortly prior to Mr Italiano's property management of Lot 118 being terminated, Mr Enrico Rispoli regularly attended the site to collect rent.

DPS 2

Clause 1.3.5 of DPS 2 imposes a requirement for the approval of Council to all use and development of lands owned or reserved under DPS 2. Clause 1.3.5.1(c) provides:
An application for the approval of Council under the Scheme is to be:
(i)made in the form prescribed in Schedule 6 of the Model Scheme text set out on Appendix B of the Town Planning Amendment Regulations, 1999, as amended from time to time;
(ii)signed by the owner of the land the subject of the application; and
(iii)accompanied by such plans and other information as is required under the Scheme.

Mr van der Feltz's authority to sign the application

The respondent accepts that cl 1.3.5.1(c)(ii) is sufficiently complied with if the application form is signed by a duly authorised agent of the owner of the land. Mr Gillot, who represented the respondent, advised the Tribunal that it was 'standard practice' to accept the signature of a duly authorised agent of the owner on applications for approval under DPS 2.
Provision for signature by a duly authorised person is sometimes found in legislation or planning schemes which deal with the form of application for planning approval. For example, in Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71, the Court considered reg 4(2) of the State Planning Commission Regulations 1962 (WA) which required an application to be in writing 'signed by the owner of the land, or by a person authorised to do so with the consent of the owner as evidenced in writing submitted to the Commission'. In Adbooth Pty Ltd and City of Perth [2006] WASAT 343, the Tribunal considered the provisions of cl 37 of City of Perth Planning Scheme No 2 which required an application 'to be signed by the owner of the land or an agent authorised in writing for that purpose by the owner of the land'. In my view, however, the absence of a reference to signature by a duly authorised agent does not necessarily require that the owner personally sign the application form. The concession made by, and the common practice of, the respondent represents the correct construction of cl 1.3.5.1(c) of DPS 2.
In Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd (2002) 121 LGERA 176, Bignold J in the Land and Environment Court of New South Wales considered whether a development consent had been granted without the owner's consent. The relevant regulations required a development application to be made by the owner of the land or any other person with the consent in writing of the owner of that land. Consent in writing of the owner was not asserted, but the question was whether the application had been 'made by the owner'. His Honour concluded (at [15]):
The first question is whether the applicants must sign personally, or whether signature by an agent on behalf the applicants was permissible. It has long been the law that, where a provision of a statute or of delegated legislation requires that a document shall be signed by a particular person, prima facie that provision does not exclude the common law rule qui facit per alium facit per se and if the person authorises another to sign on his behalf, a signature made by the other pursuant to the authority is equivalent to the signature of the person giving the authority: R v Kent Justices (1873) LR 8 QB 305; Re Whitley Partners Ltd (1886) LR 32 Ch D 337; France v Dutton [1891] 2 QB 208; Furnivall v Hudson [1893] 1 Ch 335; Dennison v Jeffs [1896] 1 Ch 611; Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430; 63 WN 277.
These observations are applicable in this case. The signature by a duly authorised agent of an owner is sufficient signature for the purposes of cl 1.3.5.1(c)(ii) of DPS 2.
The question arises as to whether Mr van der Feltz was duly authorised. Mr Gillot submits that, on the evidence available, any authority possessed by Mr van der Feltz, fell short of an authority to sign a development application on behalf of the owner. He points out the handwritten document appointing Mr Italiano was an appointment 'to act as managing agent for the property'. He submits that that authority was insufficient to enable Mr Italiano to sign a development application, and in turn insufficient to enable Mr Italiano to authorise Mr van der Feltz to sign the application on behalf of the owner.
Mr Italiano's evidence was that the authority of the managing agent varies from case to case. He indicated that a formal appointment document had been executed, but he no longer had that document because it had been returned to Mrs Rispoli upon termination of his authority to act in June 2008.
Mr Italiano's evidence was, however, that he was specifically instructed by Mr Enrico Rispoli to deal with the correspondence from the City concerning the lack of approval for the coffee business. His evidence was that, in accordance with that instruction, he wrote to the City directing it to deal with the tenants in relation to the matter. He said, and I accept, that Mr Enrico Rispoli was aware of that letter having been sent, and was generally aware of what was happening in relation to the coffee business, and the dealings with the local authority in relation to it.
I am satisfied that Enrico Rispoli was fully authorised by his mother to deal with the property. In her letter to the Tribunal, Mrs Rispoli says that she had not been to the property in over 30 years prior to driving past in late 2007. The reason she gives for that is that she had entrusted 'her late son and late husband' to take care of the property. It is clear that, at the relevant times, she had entrusted her son Enrico Rispoli, to whom she gave the letters from the City, with the task of dealing with the land.
It follows that the letter written to the City by Mr Italiano dated 28 March 2007 which specified that the City should deal with the tenants in relation to any compliance and development issues 'as they have taken over the right to deal on the property as per the lease agreement' was a statement made with the authority and concurrence of Mrs Rispoli, through her son Enrico Rispoli. In my view, that was sufficient authority to permit Mr van der Feltz to sign a development application designed as it was to regularise an existing use and development, to sign the application as agent for the owner. There is no requirement that the appointment of an agent for that purpose be in writing. It is sufficient if, as a fact, the agent is duly authorised. In this case he was.

Does the Lessee provide authority

The applicants relied upon a number of the provisions of the lease agreement as an alternative basis for the suggestion that they were authorised to sign a development application on behalf of the owner. I do not accept that an authority to sign a development application can be implied from the terms of the lease. It is true that the lease permits any use 'within the zoning' and 'goods transfer' in particular. Whether the coffee business constitutes a use as 'goods transfer' is not necessary to decide. The fact that certain uses were permitted under the terms of the lease does not, in my view, imply an authority on the part of the lessee to sign development applications on behalf of the lessor. It may be that the lease could be relied upon to require a lessor to sign a development application, but that is a different matter from constituting the lessee an agent of the lessor for that purpose.
The applicants also relied upon cl 2.3 of the lease which imposes a requirement on the part of the lessee to comply with all legislation, regulations, by-laws or orders of any competent authority affecting the use or cleanliness of the leased premises. That clause imposes obligations rather than rights, and does not give rise to an implied authority on the part of the lessee to sign a development application. Nor does the consent to assignment or subletting contained in cl 3.3 of the lease necessarily imply a right to apply for development approval.

Conclusion

For the reasons explained above, I find that Mr van der Feltz had the actual authority of the owner to sign the application for development by way of change of use of the property to a drive through takeaway coffee outlet when he signed the application in April 2008. Accordingly, the requirements of cl 1.3.5.1(c) of DPS 2 were met. The application, was therefore, a valid application which the respondent was (and is) obliged to consider and determine.
The fact that the application may no longer be supported by the owner does not affect the validity of the application. The application should be determined on its planning merits. Any dispute between the owner and the tenant is a matter to be determined in an appropriate forum, and should not affect the planning merits of the application.

Order

1.There is a declaration that the application for approval to commence development of the property at Lot 118 Guthrie Street, Osborne Park dated 10 April 2008 is a valid application in accordance with 1.3.5.1 of the City of Stirling District Planning Scheme No 2.
2.The matter is adjourned to a directions hearing to commence at 10 am on 28 May 2010 in order to consider the position in light of the respondent's consideration of the application on its merits.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT