Chisholm Catholic College and City of Bayswater
[2008] WASAT 73
•13 MARCH 2008
CHISHOLM CATHOLIC COLLEGE and CITY OF BAYSWATER [2008] WASAT 73
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 73 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:378/2007 | 13 MARCH 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 12/03/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Condition 23 should be varied Building licence should be granted | ||
| B | |||
| PDF Version |
| Parties: | CHISHOLM CATHOLIC COLLEGE CITY OF BAYSWATER |
Catchwords: | Building regulation Building licence Alterations and additions to school premises Building licence refused because of alleged failure to comply with condition of development approval Town planning Condition of development approval Condition required "reciprocal right-of-access or easement in gross" to enable school to use drainage reserve for car park and through traffic Twenty year licence granted to school over drainage reserve Whether condition complied with by licence agreement Whether condition relevant to issue of building licence Whether condition unreasonable and should be varied to reflect licence agreement |
Legislation: | Local Government (Miscellaneous Provisions) Act 1960, s 374 Planning and Development Act 2005 (WA), s 252(1) |
Case References: | Nil |
Orders | DR 378 of 2007,1. The matter is listed for further submissions if required at 9.30 am on 17 March 2008 in relation to the terms of the foreshadowed varied condition 23.,CC 278 of 2008,1. By 5 pm on 14 March 2008, the parties are to file agreed conditions subject to which the building licence can be granted.,2. The matter is listed for further submissions if required at 9.30 am on 17 March 2008 in relation to any condition that is not agreed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHISHOLM CATHOLIC COLLEGE and CITY OF BAYSWATER [2008] WASAT 73 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 13 MARCH 2008 DELIVERED : 13 MARCH 2008 FILE NO/S : DR 378 of 2007
- CC 268 of 2008
- Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Building regulation - Building licence - Alterations and additions to school premises - Building licence refused because of alleged failure to comply with condition of development approval - Town planning - Condition of development approval - Condition required "reciprocal right-of-access or easement in gross" to enable school to use drainage reserve for car park and through traffic - Twenty year licence granted to school over drainage reserve - Whether condition complied with by licence agreement - Whether condition relevant to issue of building licence - Whether condition unreasonable and should be varied to reflect licence agreement
(Page 2)
Legislation:
Local Government (Miscellaneous Provisions) Act 1960, s 374
Planning and Development Act 2005 (WA), s 252(1)
Result:
Condition 23 should be varied
Building licence should be granted
Category: B
Representation:
Counsel:
Applicant : Mr P McQueen
Respondent : Mr CA Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 A school applied to the responsible local government for a building licence to enable it to carry out alterations and additions. The local government opposed the grant of a building licence on the basis that the school failed to comply with a condition of the development approval that required "reciprocal right-of-access or easement in gross" to enable the school to use an abutting drainage reserve for a car park and through traffic area. The school obtained a 20 year licence to use the drainage reserve.
2 The school sought review of the deemed refusal of the building licence and review also of the condition of development approval. The school contended that:
• it had complied with the condition;
• alternatively, the condition is irrelevant to the issue of the building licence; and
• alternatively, the condition is unreasonable and should be varied.
3 The applications were listed for an expedited hearing, because building work had to commence by the end of the month for part of the development to be completed by the next school year.
4 Following the hearing, the Tribunal gave an oral decision in which it determined that:
• the licence agreement does not satisfy the condition;
• the condition is not irrelevant to the issue of the building licence; and
• the condition is unreasonable in light of the particular and unusual circumstances of the case, if an alternative condition could be formulated that is reasonable, achieves the planning objective of the condition and reflects the circumstances of the case.
5 The Tribunal formulated an alternative condition that satisfied these requirements and would enable a building licence to be granted.
(Page 4)
6 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
7 Chisholm Catholic College (school) seeks review of two decisions of the City of Bayswater (City or Council) in relation to proposed additions and alterations to the school premises at Lot 129 (No 1104) Beaufort Street, Bedford.
8 The proposed additions and alterations (proposed development) include the following:
• piping of a drain on a Water Corporation drainage reserve adjacent to the school land and construction of a new carpark and through traffic area over the drainage reserve;
• construction of a new hospitality wing and four new classrooms;
• demolition of a house containing the current uniform shop and construction of a new uniform shop below the hospitality wing; and
• construction of music and tutorial rooms.
9 The school currently has about 1350 students. However, the number of students will increase to about 1650 by the beginning of the 2010 school year to accommodate the incorporation of Year 7 into the school in accordance with State regulations.
10 The school is located in a residential area. Mr Damien Martin, the City's manager of planning services, gave evidence that the school presently experiences significant traffic flow and parking problems in the morning when students arrive and in the afternoon when students leave. He said that the problems associated with the traffic congestion and parking have caused the school to be unpopular with its neighbours.
Background
11 On 11 October 2007, the City approved the proposed development under the Planning and Development Act 2005 (WA), subject to 30 conditions.
12 On 8 November 2007, the school commenced proceedings DR 378 of 2007 seeking review of the City's decision to grant a conditional development approval. In particular, the school challenges some 12 conditions of development approval.
(Page 5)
13 The disputed conditions include condition 27, as imposed by the City on 11 October 2007, which has since become condition 23 in a consolidated set of conditions provided by the City's solicitors, McLeods Barristers and Solicitors, to the school's solicitors, Lavan Legal, on 4 February 2008. The condition, which I will refer to as condition 23, states as follows:
"The applicant must enter into an agreement with the City of Bayswater and/or the owners of Lot 129 and portion of Reserve 32229 to provide for a reciprocal right-of-access or easement in gross for vehicular and pedestrian movement between the lots together with drainage where applicable. The agreement must be executed by the applicant prior to an application for a building licence or prior to the occupation of the development where a building licence is not required. The legal agreement shall be prepared by the City's solicitors to the satisfaction of the City of Bayswater and all costs of and incidental to the preparation of the agreement and the City's solicitors' costs shall be met by the applicant or owner of the land."
14 On 4 December 2007, the City issued a building licence under the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LGMP Act), for the building works on the drainage reserve. Those building works are currently underway.
15 On 12 December 2007, the school applied for a building licence to enable the construction of the remainder of the approved development other than the music and tutorial rooms. The school has not applied for a building licence for the music and tutorial rooms, because a number of the disputed conditions of development approval are said to relate to that portion of the development.
16 As a result of a notice served by the school on the City, the City is deemed to have refused the building licence on 26 February 2008. The school then commenced proceedings CC 268 of 2008 seeking review of that deemed refusal.
17 On 7 March 2008, CC 268 of 2008 was listed for final hearing on an expedited basis before me today because building work needs to be commenced before the end of this month for facilities to be constructed in time for the 2009
(Page 6)
- school year. In addition, the part of DR 378 of 2007 that relates to condition 23 was also listed for final hearing before me today on the basis that the City contends that the building licence should be refused because the school has failed to comply with condition 23.
18 On 11 March 2008, the Roman Catholic Archbishop of Perth entered into a licence agreement with the Water Corporation that enables the school to use the Water Corporation drainage reserve for a period of 20 years from 1 June 2006 for the parking of cars on the reserve, and in addition, tennis, cricket and basketball playing areas also shown on the approved development application plans.
19 On 10 March 2008, the Water Corporation's manager, corporate real estate, wrote to Mr Bruce Callow, the designing architect for the school, in which he referred to the licence agreement that was ready for signature at that point and continued as follows:
"We note your concern that the City of Bayswater are [sic] still requiring a three-way legal agreement between the City, the college and [the] Water Corporation as a condition to be fulfilled prior to the issue of a building licence for the proposed new buildings on the college site. Previously the college has been verbally advised at a meeting in our office with Mr Stephen Ellis, manager, property management, and myself[,] that it is Water Corporation policy that it will not and cannot enter into a legal agreement with a third party, in this case[,] the City of Bayswater. We have established a 20-year lease [as written] that facilitates the college's use of the reserve and cannot foresee a situation in the future where the Water Corporation would have a use for the reserve that would not allow the college's lease [as written] to continue."
Building licence
20 Mr McQueen, counsel for the school, submits that the building licence should be granted for the following three reasons.
• First, the school has complied with condition 23 by the licence agreement between the Archbishop and the Water Corporation.
• Second and alternatively, condition 23 is irrelevant to the issue of the building licence because the building works
- for which a licence is now sought are unrelated to the carpark over the drainage reserve.
- • Third and alternatively, condition 23 is unreasonable and should be varied insofar as that is necessary in DR 378 of 2007 to reflect the terms in effect of the licence agreement.
21 The licence agreement does not, in my opinion, satisfy condition 23. As Mr Martin said, condition 23 is a standard form of condition. It is unfortunate that it is not expressed more clearly. It is also unfortunate that it was not tailored specifically to the somewhat unusual circumstances of this case. However, it is clear that the intention of condition 23 is to ensure that the school should have the legal right to use the drainage reserve for car parking and through traffic for the lifetime of the approved development.
22 This is apparent from the use of the words "reciprocal right-of-access or easement in gross" and from the fact that the condition is intended to regulate the development throughout its life. The term "right-of-access" is not defined in the conditions or, it appears, in legislation or policy. However, the words appear to reflect a legal concept, indicated by the hyphenation, and include, in particular, "right". It would, in my opinion, defeat the intention of condition 23 to treat a licence agreement terminable after 20 years as satisfying the condition.
23 Condition 23 is not, in my opinion, irrelevant to the issue of the building licence in the circumstances of this case. Mr Martin and Mr Callow agree that the approved development, excluding the car park on the drainage reserve, would result in a shortfall of 24 on-site car spaces compared to the minimum required by the applicable local planning scheme. While these experts also agreed that there is capacity to find additional car spaces on the school site, that is not part of the approved development.
24 Furthermore, as Mr Martin said, the car parking area over the drainage reserve as approved by the City would allow through traffic from May Street to Lawrence Street/Belham Street, thereby mitigating problems that would otherwise result, in terms of traffic congestion from morning drop off and afternoon pick up of students, particularly in Young Street. The car park and through area on the drainage reserve would therefore address an issue that arises in consequence of the approved development that is now the subject of the building licence application. There is, in my opinion, a direct connection between condition 23 and the proposed building works.
(Page 8)
25 Mr McQueen also submits that it is not within the contemplation of s 374 of the LGMP Act to allow the refusal of a building licence, in effect, because of the failure to comply with a condition of development approval.
26 I accept that building licence and development processes are distinct in the sense that a building licence cannot be refused for planning reasons. However, I consider that it is within the contemplation of s 374 to allow the refusal of a building licence in the exercise of discretion under that section, in circumstances where a particular condition of development approval specifically requires its fulfilment prior to the issue of a building licence.
27 Of course, in the exercise of discretion, the decision-maker might determine that, notwithstanding the noncompliance with a specific term of development approval that requires its fulfilment prior to the issue of a building licence, the building licence should be granted in the circumstances. However, in the circumstances of this case, I do not consider that a building licence should be granted if there is a noncompliance with condition 23, as I have found that there is.
Condition 23
28 That then brings me to the most difficult and troubling aspect of this matter, namely, whether condition 23 should be varied in DR 378 of 2007 in such a way that a building licence can be issued to enable construction to commence in time for the 2009 school year.
29 In itself, condition 23 is not unreasonable as a condition of planning approval. It is certainly badly worded, and should have been tailored to the particular circumstances of this case, which, as I have said earlier, are unusual, and clearly have given rise to some community concern. However, it is not, in itself, unreasonable.
30 Nevertheless, in my opinion, condition 23 is unreasonable in light of the particular circumstances of this case, if one can formulate an alternative condition in place of condition 23 that is reasonable, achieves the planning objective of condition 23, and reflects the circumstances of this case. The planning intention of condition 23, as I have said earlier, is to ensure that the school has a legal right to use the drainage reserve for car parking and through traffic for the lifetime of the approved development.
(Page 9)
31 I note Mr Martin's evidence, and Mr Slarke's submission for the City, that condition 23 is in a standard form and that there is a public interest in the application of standard form conditions. I also note the concern expressed by Mr Martin that any variation of the standard form of condition might give rise to a precedent for its variation in the future.
32 I consider, however, that there are certain aspects of this case which are unusual and which would distinguish it from the usual case. Those factors are that:
• the applicant in this case is an institution that is likely to commence and continue the approved development throughout its lifetime;
• the land required for the car park and through traffic area is owned by an institution, namely, the Water Corporation, which has statutory responsibility to maintain the drainage infrastructure in the reserve;
• the Water Corporation has expressed a clear position that it will not enter into a legal agreement with the City;
• the Water Corporation has said that it "cannot foresee a situation in the future where the Water Corporation would have a use for the reserve that would not allow the college's lease to continue"; and
• the evidence before me suggests that it would be possible, if necessary, for all of the car parking that is required in order to meet the standard in the applicable local planning scheme to be provided on the school site and, equally importantly, for the through traffic mechanism to be provided on the school site, although it may compromise the school's ability to use its oval for certain sporting activities.
33 In my opinion, provided that the intent of condition 23 can be met by different wording, it would be unreasonable in these unusual circumstances to, in effect, preclude the carrying out of an otherwise acceptable school development simply to maintain the standard form of condition.
(Page 10)
34 I very much doubt that the facts and circumstances of this case could be a precedent for any other departure from the standard form of condition. However, the Council should give consideration to an amendment to its standard form of condition so as to make it clearer, and should, in relation to applications of this nature, tailor its standard condition better to the circumstances of the case.
Alternative condition 23
35 I raised with counsel for the parties how condition 23 could be amended or varied to give effect to what I have found to be its intent in a way that would allow the school to obtain a building licence and commence construction.
36 Mr McQueen has obtained instructions from the school, and submits, that the preferred position is for the condition to require the school to give notice to the Council if the licence is terminated, or if its term or any flow-on term ends, and for the school and the Council to agree on an alternative way of achieving sufficient car parking for the school and the through traffic benefit that is provided by the reserve land. However, Mr McQueen ultimately noted that the school needs to commence the building works and would have little alternative but to agree to any condition that the Tribunal imposed in place of condition 23 that enabled a building licence to be granted.
37 Mr Slarke observed that there is no delegate of the Council with authority to consent to any alternative formulation of condition 23. He submits that it is undesirable to approve the development application on the basis that the facilities would be required to cease use in the event that the reserve land becomes unavailable for car parking and through traffic, because the additional children who are proposed to be accommodated in the approved facilities would still be at the school.
38 Mr Slarke raised a concern about the time lag that is likely to exist between the cessation of access to the reserve land, if that ultimately occurs, and the agreement with the Council through a development assessment process of an alternative for car parking and through traffic arrangements. Mr Slarke raised the concern about traffic safety and convenience during the time lag, and raised the potential for harm to schoolchildren and the community generally.
39 I have given anxious consideration to the question of how to resolve this aspect of the dispute.
(Page 11)
40 On the one hand, the school would have a real impetus to address the issue of sufficient car parking and the need to accommodate through traffic simply if it were required to cease use of the approved facilities without further development approval in the event that access to the drainage land became unavailable.
41 On the other hand, Mr Slarke's submissions raise a very real public safety concern. I have said previously that when it comes to matters of public safety, the Tribunal should take a precautionary approach, and I find that this is a case in which, ultimately, that simply needs to happen. I think, on balance, Mr Slarke is right, and it is not sufficient to simply require use of the buildings to cease. It is necessary to require student numbers at the school to be restored to their pre-development level if access to the drainage reserve becomes unavailable unless further development approval is granted.
42 In expressing that view, I am conscious of what that may well entail to an established school. All I can do in the circumstances, other than refuse to modify condition 23 and then refuse the building licence application, is to incorporate within condition 23 the variation that would allow the relevant school year to finish in the unfortunate and unlikely event that access to the drainage reserve is denied.
43 For those reasons, I consider that the appropriate outcome to the matters before me for final determination today is that condition 23 should be varied in the manner that I have outlined and then for the building licence to be granted.
Foreshadowed alternative condition 23 and final orders
44 In terms of the specific wording of the varied condition 23, because that has not been discussed with the parties, I will foreshadow a form of wording and then invite counsel to raise any issue to do with that wording.
45 I foreshadow the following orders:
In DR 378 of 2007:
1. The decision of the respondent made on 11 October 2007 to grant conditional development approval to the development of No 1104 (Lot 129) Beaufort Street, Bedford, is varied by deleting condition 23 in the consolidated set of conditions provided by McLeods to Lavan Legal on 4 February 2008 and by inserting the following condition in its place:
- "The applicant or the Roman Catholic Archbishop of Perth must enter into a lease or licence with the owner of the land known as Reserve 32229 located at Lot 8933 Lawrence Street, Bedford (reserve land) allowing the applicant to use the reserve land for car parking and through traffic as shown on the approved plans. The applicant must provide to the City a copy of the lease or licence within 14 days of its execution by the parties to it, and must provide to the City a copy of any further lease or licence within 14 days of its execution by the parties to it. If the lease or licence allowing the applicant to use the reserve land for car parking and through traffic is terminated, or if the term of the lease or licence or any subsequent term ceases without a replacement lease or licence allowing use of the reserve land for car parking and through traffic being entered into, then the use by the applicant of the other facilities the subject of this approval must cease by the end of the school year, and the number of students at the school must be reduced to 1350 by the end of the school year, unless further development approval is granted, including appropriate and adequate on-site car parking and through traffic facilities."
In CC 268 of 2008:
1. The deemed decision of the respondent on 26 February 2008 to refuse to approve the plan and specifications submitted by the applicant on 12 December 2007 and issue a building licence for the carrying out of building work at No 1104 (Lot 129) Beaufort Street, Bedford is set aside.
2. The plan and specifications submitted by the applicant to the respondent on 12 December 2007 are approved and a building licence is granted pursuant to s 374(1) of the Local Government (Miscellaneous Provisions) Act 1960 (WA).
- [The parties' representatives made suggestions in relation to the wording of the foreshadowed alternative condition 23 and final orders.]
(Page 13)
Orders
DR 378 of 2007
1. The matter is listed for further submissions if required at 9.30 am on 17 March 2008 in relation to the terms of the foreshadowed varied condition 23.
CC 278 of 2008
1. By 5 pm on 14 March 2008, the parties are to file agreed conditions subject to which the building licence can be granted.
2. The matter is listed for further submissions if required at 9.30 am on 17 March 2008 in relation to any condition that is not agreed.
I certify that this and the preceding [45] 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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