Chelmsford House Pty Ltd and ANOR and Town of Vincent
[2006] WASAT 147
•8 JUNE 2006
CHELMSFORD HOUSE PTY LTD & ANOR and TOWN OF VINCENT [2006] WASAT 147
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 147 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | RD:471/2005 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (MEMBER) | 8/06/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed and decision under review affirmed | ||
| B | |||
| PDF Version |
| Parties: | CHELMSFORD HOUSE PTY LTD JAIMI PTY LTD TOWN OF VINCENT |
Catchwords: | Local Government Town planning Direction to property owner Alleged contravention of Town Planning Scheme Planning approval given for residential use as a grouped dwelling Survey strata subdivision of parent lot into two lots Rear lot containing garage Front lot containing existing dwelling Conditions contemplating residential use of rear lot Rear lot not yet developed in accordance with conditions Strata bylaws amended consistently with approvals Continued use of rear lot as garage Use unconnected with front lot Local government alleging use as a car park Residential zone where car parks prohibited Owners alleging existing use rights and prior approval from predecessor local government Owners alleging such use not inconsistent with residential area Whether inconsistent or incompatible uses Evidence led showing history and context of approvals Tribunal finding inconsistent or incompatible uses Use of land was approved for residential purposes Subsequent approval governed case Whether subsequent approvals acted upon Tribunal found issuing of titles and amending of bylaws relevant acts manifesting acting upon approval Existing use rights (if any) extinguished Decision to issue Direction affirmed whether or not use as a car park Words and Phrases: "car park" |
Legislation: | Town of East Fremantle Town Planning Scheme No 1, Sch 1 Town Planning and Development Act 1928 (WA), s 2(1), s 10, s 10(2) |
Case References: | Complete Furniture Restoration Pty Ltd v Town of Claremont (2004) 37 SR (WA) 348 Matijesevic v Logan City Council (1983) 51 LGRA 29 (SC, Qld) Matijesevic v Logan City Council [1984] 1 Qd R 599 Shire of Perth v O'Keefe (1964) 110 CLR 529 Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113 Nil |
Orders | 1. The application is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : CHELMSFORD HOUSE PTY LTD & ANOR and TOWN OF VINCENT [2006] WASAT 147 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 8 JUNE 2006 FILE NO/S : RD 471 of 2005 BETWEEN : CHELMSFORD HOUSE PTY LTD
- JAIMI PTY LTD
Applicants
AND
TOWN OF VINCENT
Respondent
Catchwords:
Local Government - Town planning - Direction to property owner - Alleged contravention of Town Planning Scheme - Planning approval given for residential use as a grouped dwelling - Survey strata subdivision of parent lot into two lots - Rear lot containing garage - Front lot containing existing dwelling Conditions contemplating residential use of rear lot - Rear lot not yet developed in accordance with conditions - Strata bylaws amended consistently with approvals - Continued use of rear lot as garage - Use unconnected with front lot - Local government alleging use as a car park - Residential zone where car parks prohibited - Owners alleging existing use rights and prior approval
(Page 2)
from predecessor local government - Owners alleging such use not inconsistent with residential area - Whether inconsistent or incompatible uses - Evidence led showing history and context of approvals - Tribunal finding inconsistent or incompatible uses - Use of land was approved for residential purposes - Subsequent approval governed case - Whether subsequent approvals acted upon - Tribunal found issuing of titles and amending of bylaws relevant acts manifesting acting upon approval - Existing use rights (if any) extinguished - Decision to issue Direction affirmed whether or not use as a car park - Words and Phrases: "car park"
Legislation:
Town of East Fremantle Town Planning Scheme No 1, Sch 1
Town Planning and Development Act 1928 (WA), s 2(1), s 10, s 10(2)
Result:
Application dismissed and decision under review affirmed
Category: B
Representation:
Counsel:
Applicants : Mr S Bain (by leave)
Respondent : Mr R Rasiah
Solicitors:
Applicants : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Complete Furniture Restoration Pty Ltd v Town of Claremont (2004) 37 SR (WA) 348
Matijesevic v Logan City Council (1983) 51 LGRA 29 (SC, Qld)
Matijesevic v Logan City Council [1984] 1 Qd R 599
Shire of Perth v O'Keefe (1964) 110 CLR 529
Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113
(Page 3)
Case(s) also cited:
Nil
(Page 4)
Summary of Tribunal's decision
1 The applicants in this review were two companies that jointly owned residential land in North Perth. The land had an existing dwelling on the front of the lot and a garage at the rear. The garage was and still is used to house vehicles. Approval for the subdivision of the land was given in late 2000 and early 2001 by both the local government (the Town of Vincent) and the Western Australian Planning Commission.
2 The land was subdivided with the approvals contemplating that the rear garage would be converted into another dwelling (and garage) and that the two lots would together (as developed) constitute a grouped dwelling.
3 No rear dwelling was ever built, but the garage continued to house vehicles.
4 The Town of Vincent claimed that the rear lot was being used as a car park, a use prohibited in the residential zone. They decided to issue a written Direction to the applicants the effect of which would be to stop that unauthorised use.
5 The applicants did not comply with the Direction and sought a review of the decision to issue it. They mainly argued that the previous local government (the City of Perth) knew of the use as a garage and had approved it. The applicants claimed that they had existing use rights and that the obligations with respect to grouped dwelling would legally apply to them only when the land was actually developed.
6 The Tribunal rejected the applicants' arguments. The Tribunal considered that town planning law would treat this as a case of inconsistency as between two incompatible uses or approvals. Evidence was led regarding the context of the approvals and how those approvals were acted upon (for example, by the issue of two certificates of title).
7 In the Tribunal's view, the approval by the Town of Vincent in 2000 governed the situation and the applicants had acted upon that approval. The Tribunal further held that whether or not the current use was that of a car park, it was a use which was inconsistent with the residential use so approved.
(Page 5)
8 Thus, there was a contravention of the town planning scheme, and the decision to issue the Direction to the applicants was, in the Tribunal's view, justified.
9 The Tribunal therefore refused to set aside the Direction and dismissed the application for review.
Introduction
10 This application for review concerns land in Grosvenor Street, North Perth which is currently occupied by a dwelling house at the front and a garage at the rear. (A more formal description of the land is set out below.) Both the front house and the garage are now on separate survey strata lots; the garage is being used to house vehicles unconnected with the front dwelling. The applicant companies (applicants) own the rear lot and were responsible for the strata subdivision.
11 The Town of Vincent (respondent) says that the current use of the land is, in fact, use as a "car park" and that a grouped dwelling should have been built on the subject land, as the various approvals contemplated would be the case. The respondent says that the current use is contrary to their town planning scheme or any use approved under it.
12 Consequently, in May 2005, the respondent decided to issue a written Direction under s 10 of the Town Planning and Development Act 1928 (WA) (TPD Act), as then in force. The Direction is based upon s 10(2) of the TPD Act, which provides as follows:
"If a development, or any part of a development, is undertaken in contravention of a town planning scheme, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the scheme."
13 No issue is taken with the form, intent or service of the Direction.
14 The applicants seek to set aside the decision to issue the Direction on the basis of certain rights that they say inhere in the subject land, which rights the applicants say entitle them to continue to use the land as a garage.
15 It is common ground between the parties that the continued enforcement of this Direction turns upon the answer to the following question:
(Page 6)
- Is the subject land being used in contravention of the respondent's town planning scheme, or otherwise so as to be contrary to any use approved under or recognised or permitted by that scheme?
16 The Tribunal ordered that the matter be determined on the papers; extensive submissions and other material (including photographs and archival material) have thus been filed.
The subject land
17 It is common ground that:
a) the subject land is No 103A (Lot 94, survey strata lot 2) Grosvenor Road, North Perth, which is the whole of the land comprised in Certificate of Title Volume 2513 Folio 808 (Folio 807 evidences survey strata lot 1);
b) the applicants are the joint owners of the subject land;
c) strata lot 1 contains the sole, existing (and original) dwelling as to the entire property (that is, the parent lot);
d) strata lot 2 (which is a separate rear lot) currently consists of a garage with frontage to the existing rightofway;
e) the garaging of vehicles is taking place there, unconnected to lot 1; and
f) the subject land is zoned residential (R40) under the Town of Vincent Planning Scheme No 1 (TPS 1) and is located in the respondent's "Norfolk Precinct".
18 The respondent says that the current land use is "grouped dwellings". The applicants say that the surrounding area is "predominantly residential" with "original and new single houses and grouped dwellings with associated car parking areas in the form of garages and carports".
19 The Tribunal turns first to consider the two principal regulatory approvals given which are relevant to the matter.
The main approvals for subdivision, use and development
20 After an initial refusal on 5 December 2000, the respondent subsequently approved, upon certain conditions, on 19 December 2000, the "proposed conversion of an existing singlestorey garage
(Page 7)
- [on the original lot] into an additional twostorey grouped dwelling to an existing dwelling at No 103 [Grosvenor Road]" (emphasis added). That approval was expressed to have been given pursuant to TPS 1.
21 This is the description of the relevant transactions offered by the respondent in these proceedings. It is mainly drawn from the notice titled "Approval to Commence Development" dated 12 January 2001 and given to the applicants, reflecting the respondent's resolution of approval on 19 December 2000. Importantly, the application for approval to commence development (dated 13 December 2000) signed by or on behalf of the applicants was for the "conversion of an existing garage into a dwelling so as to create two group [sic] dwellings on the subject land".
22 Mr Bain does not appear to disagree with the description of events offered by the respondent, but argues, as appears below, that his clients have certain rights in the land that permit the garaging of vehicles.
23 On 7 February 2001, after consultation with the respondent and in the context of the approval just mentioned and a concurrent resolution of support from the respondent, the Western Australian Planning Commission (WAPC) granted, upon certain conditions, the surveystrata subdivision of No 103, Grosvenor Road.
The respondent's argument
24 The first step in the argument of the respondent is that, in context, the approval of 19 December 2000 was intended to lead to "an additional grouped dwelling" and was to "be completed and stratatitled as such".
25 However, this has not occurred, leaving, as we have seen, a garage on a separate rear lot (that is, strata lot 2) with frontage to the existing rightofway.
26 The respondent draws attention to correspondence passing between the parties in June 1999, and March and June 2000 which is confirmatory of the respondent's position. There was no objection made to the Tribunal receiving this correspondence. The correspondence is as follows.
27 In June 1999, the then agent (Finlaysons) of the joint owners (that is, the current applicants) proposed a separate lot for the storage and parking of vehicles (that is, a proposal relating to the subject land). This was rejected by the respondent in March 2000, in short, because this would lead to a prohibited use (namely, car parking under TPS 1:
(Page 8)
- see the definition of "car park" in TPS 1, and the Zoning Table listing it as an "X" or prohibited use).
28 In essence, this position is reiterated by the respondent in these proceedings.
29 In apparent response, Finlaysons proposed in June 2000 to the WAPC that "[t]he rear lot will contain the existing garage/workshop which will be converted into a twobedroom grouped dwelling with a twocar garage, by the addition of a second storey". An identical description was provided in writing by the applicants to the respondent in September 2000.
30 Meanwhile, in an application dated 20 March 2000 (but apparently received on 8 July 2000), the applicants had applied to the WAPC for a survey strata title saying "[t]he [existing garage] will be incorporated into a new dwelling at the rear of the lot … ".
31 In October 2000, the respondent noted that, in the circumstances, it would require a development application "for a development indicating a dwelling on each of the proposed lots prior to endorsement of the surveyed plan by the [respondent]".
32 The Tribunal turns to certain other papers that make up the "paper trail" that, it is said, supports the respondent's case.
33 The original plans, datestamped 29 September 2000 (referred to in the approval of the respondent of December 2000) show a "proposed residence" at the rear. In addition, it is clear from the conditions and notations on the approved plans that some of the respondent's conditions had direct or exclusive effect or application in relation to the second proposed dwelling.
34 The concurrent resolution of the respondent in December 2000, which recommended approval by the WAPC and which refers to a survey strata plan dated 3 July 2000, is presumably to the same effect.
35 Importantly, and so far as is material, the WAPC imposed the following condition (at the recommendation of the respondent):
"5. A Management Statement being prepared and submitted in accordance with Section 5C of the Strata Titles Act 1985, to include the following additions to the bylaws contained in Schedules 1 and 2 of the Strata Titles Act:
(Page 9)
- a) Development or redevelopment on the survey strata lots must comply with an existing development approval issued by [the respondent] … which complies with the grouped dwelling requirements of the [respondent's TPS 1].
b) Amendment to or repeal of the above provision cannot be effected without the [WAPC's] agreement." (Emphasis added.)
36 Finlaysons, the then agent of the applicants, did not take issue with this condition, but did seek the review of another condition, which particular matter is immaterial to this review.
37 Consequently, in May 2001 the bylaws were amended to contain a statement reflecting the tenor of condition 5 set out above: see bylaw 16 inserted by instrument dated 30 May 2001.
38 Subsequently, after consultation with the respondent by the WAPC, written advice was issued to the applicants by the WAPC that the various conditions, including condition 5, "[had] been fulfilled to the satisfaction of [the respondent]".
39 In January 2002, the ownership of surveystrata lot 1 was transferred to third parties and certificates of title were issued.
40 On 13 April 2005, the respondent began, in effect, enforcement action which led to the issuing of the Direction under review based upon the "car park" argument referred to above.
Applicants' arguments in reply
41 Mr Bain does not take issue with any of these events outlined above, only the interpretation and effect of them.
42 In earlier representations to the respondent in May 2005 on behalf of the applicants, Mr Bain, in effect, foreshadowed various arguments to be put in these proceedings as follows (formal parts omitted):
"Please be advised that the development on strata lot 2 has approval from the City of Perth. Furthermore, we point out that the strata lot has been created in accordance with the Western Australian Planning Commission's approval dated February 2001 … The plan approved [by the WAPC] showed the development and as such it existed at that time. Of note,
(Page 10)
- there is no condition on the approval requiring demolition of the building on the lot.
The Approval to Commence Development … was issued on 12 January 2001 and has expired. There was no requirement as part of this approval for the existing use of the building to cease and in any event my client has not acted on the approval and a building licence was not issued.
Please note that the WAPC approval requires a Management Statement that ensures that any development on the lot will comply with a current development approval. As yet there has been no development. My client will comply with this requirement upon development of the lot."
43 These matters are supplemented and elaborated upon in his written submissions filed with the Tribunal. In summary, Mr Bain's arguments are as follows:
1) By reason of the application of the various definitions (such as "car park" and "garage", as appear in TPS 1 or related planning instruments) and taking TPS 1 as a whole, the use of a garage is not inconsistent with residential status.
2) Relatedly, it is argued that the garaging of motor vehicles on the subject land has been in place since at least the 1980s.
3) Relatedly, it is asserted that the former local government (the City of Perth) "approved" this use (that is, the use of the subject land as a garage).
4) In any event, it is argued that taking the whole of the land into consideration (that is, the parent lot), only a small percentage of the land (8%) is being used for parking.
5) There is a nonconforming use right to garage vehicles on the subject land (see cl 16 of TPS 1).
6) Alternatively, the use could be considered as a "use not listed" under cl 15 of TPS 1.
(Page 11)
- 7) The current use of the land is consistent with the aims and objectives of TPS 1 and otherwise there is no impact upon amenity by this continued use.
44 Despite the best efforts of both parties, no formal historical evidence of any substance could be produced supporting the contention that the City of Perth had "approved" the use as a garage. However, as will be seen, this issue falls away in light of the approach of the Tribunal set out below.
Discussion of the case
45 The critical question is whether the activities occurring on the subject land are "a development, or any part of a development … undertaken in contravention of a town planning scheme". "[D]evelopment" is, of course, defined under the TPD Act to mean "the development or use of any land": s 2(1), TPD Act (emphasis added).
46 An answer to that question mainly directs attention to the use of the land at the time that the Direction was issued, in the context of the law in force at the time of this review. In any event, in this review at any relevant point of time (including now), the material facts and the law have all remained the same.
47 In characterising "use", we may usefully employ the words of Kitto J in Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535 where his Honour framed the issue as: "[What], according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date[?]"
48 Before answering that question, it is useful to set out some basic principles where questions of superseded or concurrent use rights and approvals are concerned. Neither of the parties took the Tribunal to this material, but in the Tribunal's view, these principles are largely determinative of the issues between the parties.
49 In Matijesevic v Logan City Council (1983) 51 LGRA 29 (SC, Qld), Carter J said (at 33):
"It is in my opinion inconsistent with the provisions of the [town planning] scheme to hold that, notwithstanding a later application and approval, the land remains forever subject to some kind of residual right to which the landowner for the time being can always fall back upon if he so desires."
(Page 12)
50 As the learned authors (Messrs Fogg, Meurling and Hodgetts) of Planning and Development (Qld) (LBC, looseleaf) observe (at [1535]):
"Carter J's particular conclusions in Matijesevic were overturned on appeal, but [this] general statement is accurate of the effect of previous planning control where there is incompatibility."
51 Further, on appeal in Matijesevic v Logan City Council [1984] 1 Qd R 599, Connolly J (Campbell CJ and Matthews J concurring) said (at 603):
"The effect of planning approval (once acted upon at least) on a prior lawful but different use may well be to extinguish the prior lawful use."
52 Here, the Tribunal is satisfied that planning approval was given in relation to the subject land in December 2000 for the land to be used and developed, according to ordinary terminology, for the purposes of residential use, in particular as a dwelling with a garage, as a part of a grouped dwelling. Thus, if the land is, in fact, instead being used as a "car park", it is a use which, on its face, is necessarily inconsistent or incompatible with TPS 1, as car parks are prohibited in the residential zone applicable to the subject land (and cannot become an approved use).
53 The evidence strongly suggests that whatever the case for the parent lot, the subject land is being "used primarily for [the] parking [of] vehicles" within the meaning of TPS 1 (see the definition of "car park" set out in Schedule 1 to TPS 1). However, it is unnecessary to conclusively answer whether the "appropriate designation" of use is that of a "car park" because, even if the use were, in fact, not so characterised, the actual use now subsisting (however characterised or designated) is clearly not a use which has been relevantly approved.
54 At its simplest, the current use of garaging vehicles is inconsistent or incompatible with the approved use, when that use is properly explained and understood. In particular, there is no relevant residential purpose or connection whatever in the current use.
55 Thus, on the basis of the authorities referred to above, even assuming that there existed any "residual rights" in the land (the evidence for which is, in any event, slight), such rights must be rendered nugatory by the existence of an inconsistent right of use which supersedes such earlier rights (if there, in fact, be any).
(Page 13)
56 To the extent that such later rights must be relevantly "acted upon", the Tribunal draws attention to the amendment of the bylaws and the issue of separate certificates of strata title (both events arranged by the applicants), in the context of the relevant approvals and conditions (which called for grouped dwellings), approvals that were fully extant at these material points of action by the applicants.
57 For the sake of completeness, the Tribunal should add the observation that to the extent (if any) that Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113 gives the applicants any comfort, that case is readily distinguishable. EM Heenan J noted in that case, at [46], that he was dealing with,
"one, relatively small, suburban sized block of land in single ownership. It has not been subdivided. The provisions of the Town Planning and Development Act prevent separate development of the property, in the absence of subdivision, without the approval of the authority. There can be no subdivision without the potential loss of the non-conforming use … except at the discretion of the [local government under their] Town Planning Scheme."
58 In that case, the Supreme Court dismissed an appeal from a decision of the former Tribunal (Complete Furniture Restoration Pty Ltd v Town of Claremont (2004) 37 SR (WA) 348) wherein the President of the former Tribunal had set aside a s 10(2) Direction on the basis that certain nonconforming use rights had been made out.
59 Given the approach of the Tribunal, it is unnecessary to consider Mr Bain's other submissions.
Conclusion
60 For the reasons given above, the Tribunal has come to the conclusion that the law and the facts as viewed by the Tribunal effectively sustain the decision to issue the Direction under review. There is an existing use which contravenes TPS 1. This is so whether or not the use is actually a "car park" under TPS 1, although it seems likely that it is. No case is put forward to show that the enforcement of TPS 1 in these particular circumstances by way of the issue of the Direction under review is inappropriate. On the contrary, the history of the matter set out above tends to justify the issue of the Direction.
(Page 14)
61 The decision to issue the Direction ought to be affirmed and the application for review consequently dismissed. The consequence for the applicants is that the Direction must be complied with.
Orders
62 The orders of the Tribunal are:
1. The application is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
2
2