City of Nedlands Aged Persons Home Trust Inc and City of Nedlands
[2012] WASAT 75
•13 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CITY OF NEDLANDS AGED PERSONS HOME TRUST INC and CITY OF NEDLANDS [2012] WASAT 75
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 13 FEBRUARY 2012
PUBLISHED : 19 APRIL 2012
FILE NO/S: DR 210 of 2011
BETWEEN: CITY OF NEDLANDS AGED PERSONS HOME TRUST INC
Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning Development application Existing use rights Preliminary questions as to scope and extent of nonconforming uses Aged care facility Original facility comprised of both residential and nursing components Now comprised of residential and hospice elements Whether permissible under existing use rights to replace hospice with active living units Inquiry into relevant purpose End to which land is seen to serve Rights given liberal, evolutionary interpretation, including right to intensify land use Tribunal held that land was a single planning unit with both residential and nursing elements of land use Tribunal held that development proposal if proceeded with would bring to an end existing use rights Tribunal held that proposed development would exceed preserved development rights Scheme provisions permitting substitution of one nonconforming use for another nonconforming use may be available to applicant Questions answered adverse to applicant
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 4.1, cl 4.1(i), cl 4.1(ii), cl 4.2, cl 4.4, Pt IV
Residential Design Codes of Western Australia
Retirement Villages Act 1999 (NSW)
Result:
Preliminary questions answered thus:
A. The proposed development would, if proceeded with, bring to an end the whole of the nonconforming existing use rights associated with the subject land, such land being considered by the Tribunal to be a single planning unit characterised by a single lawful land use as a residential aged care facility with both nursing and residential components.
B. Such proposed development, being itself a nonconforming land use, might nevertheless be capable of a grant of planning approval as a substituted or changed nonconforming land use under cl 4.2 of the City of Nedlands Town Planning Scheme No 2, provided that the requisite opinion is formed under that clause.
Category: B
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Mr C Slarke
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
ABC Developmental Learning Centres Pty Ltd v City of Canning [2004] WATPAT 232
Bonus v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 59 ALJR 105; 54 LGRA 99
La Rosa v City of Wanneroo [2006] WASC 304; (2006) 154 LGERA 11
Sevenex v Blue Mountains City Council [2011] NSWCA 223; (2011) 183 LGERA 1
Shire of Perth v O'Keefe (1964) 110 CLR 529
Wellington v Surf Coast Shire Council [2011] VCAT 2317
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In this review, the applicant Trust proposed to redevelop a residential aged care facility in Nedlands, currently comprised of both residential and nursing/medical (nursing home) components. The facility was originally constructed around 1975. The applicant Trust sought development approval to replace the nursing home (which was now a hospice) with additional aged care dwellings (socalled, 'active living accommodation units'). The City of Nedlands has refused to permit such development.
Such activities, whether considered separately or together, would not be possible under the residential zoning found in the current City of Nedlands Town Planning Scheme No 2. They were thus 'nonconforming' uses of the land in respect of which the Scheme gave the applicant Trust extensive existing use rights. However, the parties remain at odds over the extent of such rights.
The Tribunal was asked to consider some preliminary issues arising out of the scope and extent of such rights.
The Tribunal held that nonconforming use rights initially require an assessment of the characterisation of the relevant purpose, namely, 'the end to which land is seen to serve', crystallised as at the relevant date or dates. The Tribunal discussed the nature of such rights, which are generally interpreted liberally; are recognised as having some evolutionary characteristics; and may even extend to, for example, the right to intensify such development.
In the Tribunal's view, despite the generally extensive nature of such rights, the proposed development in this case would, if proceeded with, bring to an end the whole of the nonconforming existing use rights associated with the subject land. This was because such land was considered by the Tribunal to be a single planning unit characterised by a single lawful land use as an integrated residential aged care facility with both nursing and residential components.
The Tribunal said that it matters not how these components were actually funded or managed, or the precise degree of integration or separation between the two elements, matters which may well change over time.
However, the Tribunal found that such proposed development, being itself a nonconforming land use, might, nevertheless, be capable of a grant of planning approval as a substituted or changed nonconforming land use under an express provision of the Scheme, provided that the requisite opinion were to be formed under that clause.
The preliminary issues were determined on the documents on the basis of extensive written submissions, agreed facts and documents, and an agreed chronology of key dates; oral reasons were subsequently delivered. What follows are the edited and formally revised reasons given by the Tribunal on those preliminary issues.
Introduction
Some preliminary questions arise in these proceedings concerning the extent of the existing use rights attaching to certain land in the City of Nedlands developed by the construction thereon (1974 - 1975) of a combined nursing home and aged persons' dwellings facility. The applicant Trust proposes to further develop this land by the replacement of the nursing home component (now a hospice) with additional aged care dwellings (socalled 'active living accommodation units'). The City of Nedlands has refused to permit the development.
The joint statement of preliminary issues is as follows:
1)Is the present use of No 20 (Lot 25) Betty Street, Nedlands [subject land] a nonconforming use of that land for the purposes of the City of Nedlands Town Planning Scheme No 2 (Scheme or TPS 2)?
2)If the answer to Issue 1 is 'yes':
a)does cl 4.1 of the Scheme provide a means by which the proposed use may be approved?; or
b)does cl 4.4 of the Scheme prevent the proposal from being approved?
3)If the answer to Issue 1 is 'no':
a)what is the correct classification of the proposed use?; or
b)is the proposed use capable of approval under the Scheme?
The City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme) provisions and an agreed statement of facts are set out below.
For the reasons that follow, the preliminary questions raised should be answered as follows:
1)The proposed development would, if proceeded with, bring to an end the whole of the nonconforming existing use rights associated with the subject land, such land being considered by the Tribunal to be a single planning unit characterised by a single lawful land use as a residential aged care facility with both nursing and residential components.
2)Such proposed development, being itself a nonconforming land use, might nevertheless be capable of a grant of planning approval as a substituted or changed nonconforming land use under cl 4.2 of TPS 2, provided that the requisite opinion is formed under that clause.
The agreed facts
As mentioned, the parties have agreed, for the purposes of the resolution of the preliminary issues, on certain relevant facts, as follows:
1)The land now known as No 20 (Lot 25) Betty Street, Nedlands was formerly comprised of Lots 12 17 inclusive at Betty Street, Melvista Avenue and Doonan Road.
2)Under the former City of Nedlands Town Planning Scheme No 1 (TPS 1), the land was reserved for public purposes (State Electricity Commission) until the gazettal of [the City of Nedlands] Scheme Amendment No 35 (Amendment 35) on 25 July 1973. By Amendment 35, the land was rezoned 'as Special Development Zone so as to permit the erection of homes for aged persons by the Council'.
3)In 1975 the respondent and the applicant entered into a deed which records that the land:
was transferred to the Trust upon the basis that[,] in the event of the Trust ceasing to utilise the land for an aged persons centre[,] the Trust would transfer the said land[,] together with all improvements thereon[,] back to the City free of all costs, charges and expenses … In the event of the Trust at any time hereafter ceasing to utilise the said land for an aged persons centre[,] the trust shall forthwith[,] upon written request to that effect by the City[,] transfer the said land …
4)The land has been developed with a two storey 'nursing home' or 'hospice' and 27 single storey aged persons' units.
5)The respondent has on its files approved building plans for '30 aged persons' homes and 27 bed hospital development'.
6)The land is now zoned Residential R12.5 pursuant to the [sic] TPS 2. Under TPS 2:
a)multiple dwellings are not permitted;
b)there is no use class 'Aged Persons Dwellings', 'Aged Care Facility', or similar; and
c)the use class 'Hospital' is not permitted in the residential zone.
7)The proposed development involves:
a)the relocation of the residents of the hospice facility to another site;
b)the demolition of the two storey hospice; and
c)the construction of 10 new two storey 'active living accommodation units' in place of the hospice.
The parties have also agreed on a chronology of key dates, from 1973 1985, and on a bundle of agreed documents. The key dates are as follows:
| No. | Description | Date |
| 1. | Gazettal of Amendment 35 to TPS 1 | 25 July 1973 |
| 2. | Approved building licence plans showing 27 aged persons' units and a 30 bed hospital | 14 August 1974 |
| 3. | Construction of 27 aged persons' units and a 30 bed nursing home commences | August 1974 |
| 4. | Initial development completed and first residents move into their units | 15 March 1975 |
| 5. | Deed between respondent and applicant | 15 June 1975 |
| 6. | Gazettal of TPS 2 | 18 April 1985 |
City of Nedlands Town Planning Scheme No 2
Part IV of TPS 2, so far as is relevant, provides as follows:
4.1CONTINUANCE OF NONCONFORMING USE
No provision of the Scheme prevents:
(i)The continued use of any land or building for the purpose for which it was being lawfully used at the time of the coming into force of the Scheme; or
(ii)The carrying out of development thereon for which, immediately prior to that time, any approval under any law then in force authorising the development to be carried out had been duly obtained and was current.
…
4.1.2Where in respect of land zoned under Part 3 of the Scheme a nonconforming use exists or was authorised as mentioned in Clause 4.1 of this Part on that land, and provided the prior consent in writing of the Council has been obtained, buildings may be extended to the limits prescribed by the Uniform Building ByLaws made under the Local Government Act 1960 (as amended), or by any other by-laws made under that Act for the purpose of limiting the size, location and distance from boundaries and any other matter required by law for that class of use within the boundary of the lot or lots on which the use was carried on immediately prior to the coming into force of the Scheme.
4.2CHANGE OF NONCONFORMING USE
The Council may permit the use of any land to be changed from one nonconforming use to another nonconforming use if the proposed use is in the opinion of the Council less detrimental to the amenity of the neighbourhood than the existing use or is in the opinion of the Council closer to the intended uses of the zone.
4.3DISCONTINUANCE OF NON-CONFORMING USE
4.3.1Notwithstanding the preceding provisions of this Part, except where a change of nonconforming use has been permitted by the Council under Clause 4.2, when a nonconforming use of any land or building has been discontinued for a period of six months or more, that land or building shall not thereafter be used other than in conformity with the provisions of the Scheme.
4.3.2The Council may affect the discontinuance of a nonconforming use by the purchase of the affected property, or by the payment of compensation to the owner or occupier or to both the owner and the occupier of that property, [and] may enter into an agreement with the owner, or the occupier, for that purpose.
4.4DESTRUCTION OF BUILDINGS
If any building is, at the gazettal date, being used for a nonconforming use, and is subsequently destroyed or damaged to an extent of 75% or more of its value[,] the land on which the building is built shall not thereafter be used otherwise than in conformity with the Scheme, and the buildings shall not be repaired or rebuilt, altered or added to for the purpose of being used for a nonconforming use or in a manner or position not permitted by the Scheme.
Respondent's arguments on the preliminary issue
The respondent's key arguments in opposition to the proposed development, in summary, are as follows.
First, the nursing home and aged persons' dwellings are, for planning purposes, separate land uses. In this regard, the respondent's counsel, Mr Slarke, pointed to a number of factual indicators suggesting separateness, such as their respective independent operations and their physical and managerial separation.
Secondly, the proposed development, that is, the 10 two storey active living units, will be 'Multiple Dwellings' under TPS 2 by reason of the incorporation, by reference to the definition of the same, from the relevant Residential Design Codes of Western Australia.
Thirdly, multiple dwellings are expressly not permitted under the current lowdensity zoning of Residential R12.5.
Fourthly, aged persons' dwellings and similar, and hospital land use classifications are likewise not permitted under the current zoning of Residential R12.5.
Fifthly, the proposed development is governed by the nonconforming use provisions of TPS 2 which are, in effect, controlled by the prohibitions found in cl 4.4 (dealing with the 'Destruction of buildings').
In short, on the respondent's argument, these prohibitions would apply because of the wholesale demolition proposed as part of development of the nursing home building on the subject land.
Applicant's arguments on the preliminary issue
The applicant's case in reply commences by pointing to the liberality afforded to nonconforming use rights in planning law generally.
Mr Hardy, for the applicant, submitted that a composite nonconforming use, namely, one of a broad genus of an aged care facility, aged persons' centre or aged persons' accommodation dwelling, had been established on the agreed facts and documents.
Counsel relied upon the 1973 zoning; the 1975 deed between the applicant Trust and the respondent; the Commonwealth's 1975 Nursing Homes Agreement with the applicant Trust; the respondent's Municipal Heritage and Inventory Listing; and the operator's current internet advertisements suggesting some level of integration between the running of the home and the 'retirement village'.
The central argument of the applicant was that the relevant cases permit such development, as is here proposed, because the replacement of the nursing home with active living accommodation units would not relevantly depart from the land use's purpose preserved under the Scheme. The Scheme's provisions found in Pt IV of TPS 2, in effect, bolster or complement such rights.
However, the applicant does not accept the respondent's contention that cl 4.4 of TPS 2, (that is, the clause allegedly dealing with the demolition of the nursing home), applies in the circumstances of this case, relying principally on the nature and scope of the rights afforded to the holder of nonconforming use rights under planning law.
Discussion of the case
Although the arguments in this case were relatively complex, I think that the law in this area has an underlying simplicity that is captured in, for example, a few passages of the New South Wales Supreme Court of Appeal in its recent decision of Sevenex v Blue Mountains City Council [2011] NSWCA 223; (2011) 183 LGERA 1 (Sevenex). That case dealt with existing use rights in respect of a tourist development proposal in the particular statutory context of New South Wales planning law.
In Sevenex, Young JA, at [5], with the concurrence of the other Judges, after referring to certain passages from Bonus v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375 (Sugarman J), cited Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [27] and following (citations omitted by Young JA):
In planning law, use must be for a purpose … The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued … However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose … The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes …
Young JA continued, at [6]:
Granted that the purpose should be described in liberal language, it still seems to me that describing the purpose [in the present case] as commercial development is far too vague and nebulous. What the plans showed were the sale of souvenirs and food, principally for tourists; what is now sought is to include some tourist entertainment including a mini zoo.
The passage cited above from Preston CJ in the Land and Environment Court of New South Wales is, of course, consistent with the many authorities cited to me in this case. And, the liberality of the rights to be preserved are captured in numerous cases, including cases where the High Court has considered the matter, dating as far back as, for example, Shire of Perth v O'Keefe (1964) 110 CLR 529.
They are also discussed, for example, in a recent case in the Victorian Civil and Administrative Tribunal, namely, Wellington v Surf Coast Shire Council [2011] VCAT 2317 (Wellington).
In that case, Deputy President Dwyer, in a lengthy decision, discussed the relevant principles, drawing attention to the bundle of rights that flow from preservation as a nonconforming use, including the right to intensify, and even that of permitting some adverse amenity impacts therefrom, all in the context of a 'planning unit' of relevant land use. Deputy President Dwyer referred to the relevant part of the site in the case that he was considering as an 'integrated whole': see Wellington, at [144]. Deputy President Dwyer did not rule out, however, separate land uses attracting independent nonconforming use rights.
A single planning unit is a concept well known in planning law in this State. See, for example, La Rosa v City of Wanneroo [2006] WASC 304; (2006) 154 LGERA 11.
Here, the single planning unit is, of course, the whole of No 20 (Lot 25), Betty Street. The nonconforming use rights require the characterisation of the relevant purpose, namely, 'the end to which land is seen to serve', crystallised as at the date of approval or, in this case, lawful development, and so far as is necessary as at 18 April 1985, that is, the date of commencement of TPS 2.
As the authorities make clear (see, for example, the cases collected in Wellington), we are concerned with actual use, not use measured against categories of prohibited use. Here, the 'integrated whole' of the lawful development, which probably runs at least from the date of the approved building licence (14 August 1974), was, as the plans accompanying that approval clearly show, comprised of two interrelated components; residential and hospital care.
Essentially, that situation has not changed to the present time, but the hospital part of the use has, of course, transmogrified and evolved over time through that of a nursing home to that of hospice care. Such evolutionary changes are recognised and permitted under the principles of preservation of existing use rights.
Thus, the question arises: what is the proper description or characterisation of actual use at the critical date or dates?
Other areas of the law can provide some assistance in this conceptual task. Thus, to take an example, the Retirement Villages Act 1999 (NSW) defines a 'residential aged care facility' as:
… any residential accommodation for retired people that includes:
(a)meals and cleaning services, and
(b)personal care or nursing care, or both, and
(c)appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care.
In my view, the actual use of the single planning unit at the critical dates was as a residential aged care facility with, as the plans showed, both a residential and nursing/medical component. It matters not how these components were actually funded or managed, or the precise degree of integration or separation between the two elements, matters which may well change over time.
If, at some point in the future, sufficient changes occurred, such that either or both elements of the facility, that is, nursing and residential, 'disappeared', then the actual use might well transmogrify into something else.
Accordingly, such a change as is here proposed would not be the relevant intensification or permitted evolution of the use of the land but rather, the removal of an essential, relevantly integrated component of the preserved use and, at best, might be described as an intensification of the remaining part of the preserved use.
But for the protection afforded by Pt IV of the Scheme, such a modified use, as, indeed, the use of the residential aged care facility itself, would not be in conformity with the current Scheme as, at the very least, planning approval, assuming that that could be lawfully given, would be required for either of these developments' continued use. Alternatively, they could never be approved under the current Scheme.
Extent of continuance of use
I do not think that cl 4.1 of TPS 2 ('Continuance of NonConforming Use') gives the applicant an untrammelled right to develop the land such as is here proposed. In particular, existing-use rights preserved under cl 4.1(i) of TPS 2 would not allow the destruction of the preserved and integrated nursing home element of the residential aged care facility under the guise of 'continued use'.
Also, by the application of broadly similar reasoning, cl 4.1(ii) of TPS 2 should not be read in the manner suggested by the applicant Trust, but instead should be read as is suggested by, say, the approach of the former Tribunal in ABC Developmental Learning Centres Pty Ltd v City of Canning [2004] WATPAT 232.
There, after considering and distinguishing the High Court's decision in Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 59 ALJR 105; 54 LGRA 99 (Dorrestijn), the former Tribunal rejected any suggestion that further development (here, in effect, the destruction of the preserved nursing home element) was somehow either intrinsic or 'necessary' to the non-conforming use. The former Tribunal said, at [45]:
In this appeal, there is no necessity for further development or extension of the non-conforming use in order to ensure its continuation, and therefore the views expressed in Dorrestijn are not on point.
To sum up, the application of either sub-clause of TPS 2, using broadly similar reasoning in respect of both, would not give the applicant unrestrained rights under the guise of either intensification or permitted 'redevelopment'.
Change of non-conforming use
I turn to the other issue, which was the question of the applicability of cl 4.2 of TPS 2 ('Change of nonconforming use').
In my view, such a proposed change of use could be permitted by the Council acting under cl 4.2 of TPS 2, as it would be a change from one nonconforming use to another nonconforming use, whatever new characterisation or label is placed on the new development or the proposed development.
The Council, or, on review, this Tribunal would, of course, have to form the requisite opinions required under cl 4.2 of TPS 2 for this to occur.
Demolition
Finally, I should say something about cl 4.4 of TPS 2 ('Destruction of buildings') which was relied upon by the respondent.
In my view, cl 4.4 of TPS 2 is primarily directed at the destruction of buildings by misadventure and the like. It is a prohibition, as Mr Slarke submits, but it does not control planned and approved changes of nonconforming uses to other nonconforming uses, which is a process governed and regulated, in my view, under cl 4.2 of the Scheme.
To expand cl 4.4 of TPS 2's operation beyond its express terms would seem to eat into the extensive rights given to the holders of nonconforming use rights, both at common law and otherwise, under Pt IV of the Scheme. That could not have been intended by the enactors of the Scheme.
Disposition of the matter
So, for these reasons, I have come to the conclusion that the development may be capable of being approved if the requisite opinions are formed under cl 4.2 of TPS 2.
I will hear counsel on the question of the precise formulation of the order answering the preliminary questions, and whether the matter should be sent back to the respondent for reconsideration or otherwise remitted to them, or whether the matter should be listed for further directions in this Tribunal.
Orders
The orders of the Tribunal are as follows:
1.For the reasons given, the preliminary issues identified by the parties are answered as follows:
A.The proposed development would, if proceeded with, bring to an end the whole of the nonconforming existing use rights associated with the subject land, such land being considered by the Tribunal to be a single planning unit characterised by a single lawful land use as a residential aged care facility with both nursing and residential components.
B.Such proposed development, being itself a nonconforming land use, might nevertheless be capable of a grant of planning approval as a substituted or changed nonconforming land use under cl 4.2 of the City of Nedlands Town Planning Scheme No 2, provided that the requisite opinion is formed under that clause.
2.The matter is otherwise adjourned into the class 2 directions list on 16 March 2012.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER
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