Cityway Holdings Pty Ltd and City Of Armadale
[2006] WASAT 102
•28 APRIL 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
CITATION: CITYWAY HOLDINGS PTY LTD and CITY OF ARMADALE [2006] WASAT 102
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 28 APRIL 2006
FILE NO/S: CC 302 of 2006
BETWEEN: CITYWAY HOLDINGS PTY LTD
Applicant
AND
CITY OF ARMADALE
Respondent
Catchwords:
Local government Subdivisional roads Drainage Subdivider submitted plans to local government showing adequate subdivisional roads and drainage system for approved subdivision Local government purported to require subdivider to connect subdivisional drainage system to recently constructed drainage system on adjoining upstream property Preliminary issue Whether requirement beyond power of local government
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 295, s 295(3), s 295(3)(a), s 295(3)(a)(i), s 295(3)(a)(ii), s 295(3)(a)(iv), s 295(3)(b)(i), s 295(3)(b)(iv), s 295(3)(d)
Planning and Development Act 2005 (WA), s 170
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4)(b)
Result:
1. Requirement of respondent was beyond power
2. Decision of respondent set aside
Category: B
Representation:
Counsel:
Applicant: Mr I McKellar (Director)
Respondent: Mr RG Davies (Authorised Public Sector Employee)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
Cityway Holdings Pty Ltd argued that the City of Armadale (City) did not have power to require it to connect its subdivisional drainage system to a drainage system on adjoining, upstream land. The subdivisional drainage system would adequately drain the subdivisional roads to an existing public drainage system in a public road downstream of the subdivision.
The Tribunal determined that the City's requirement was beyond power in the circumstances of this case. Although the City had power to require connection of a subdivisional drainage system which drains subdivisional roads to an off‑site drainage system where the connection is necessary for the proper drainage of the roads, in the circumstances of this case the connection was unrelated to the proper drainage of the roads.
The City's decision was set aside.
Introduction
Cityway Holdings Pty Ltd (Cityway) has raised a preliminary issue in review proceedings which are pending before the Tribunal. Cityway owns the land comprised in Lot 9000 on Deposited Plan 48693 and known as Lot 7 Raeburn Road, Roleystone (Cityway land). Cityway obtained subdivision approval of its land into 17 residential lots. Conditions of subdivision approval require that the subdivisional roads are to be constructed and drained at Cityway's cost, the land is to be provided with an adequate outlet drainage system at Cityway's cost and that drainage easements are to be granted free of cost to the City of Armadale (City) in accordance with the easements shown on the approved subdivision plan.
Pursuant to s 295(3) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act) Cityway's consultant engineer delivered drawings to the City showing the proposed subdivisional roads and drainage. Prior to its repeal by s 14(2) of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), with effect from 9 April 2006, s 295 of the LG(MP) Act provided, in part, as follows:
"(1)Where a person who is the owner of land in a district proposes to subdivide the land into lots for disposal, if the proposal is to include in the subdivision a street or streets for use by the public, he shall not commence to put the proposal into effect until he has notified the local government of the proposal in writing and delivered to the local government with the notification a plan of the subdivision, and received the approval prescribed by the Town Planning and Development Act 1928 to do so.
…
(3)(a)Where a person so delivers a plan of subdivision of land in a city, town, or townsite, and the proposed subdivision includes the provision of a street for use by the public, he shall also deliver to the local government –
(i)drawings showing longitudinal and cross sections of the proposed street;
(ii)specifications of the proposed street;
(iii)the name proposed to be given to the street; and
(iv)such other information including information relating to levels, drainage, nature of soil, and physical features, as the local government requires.
(b)the local government may require the person so subdividing the land –
(i)to amend the drawings or specifications or both;
(ii)to assign a name to the proposed street or, if a name has already been assigned, to alter or change that name;
(iii)to assign a name to the area the subject of the proposed subdivision, or if a name has already been assigned, to alter or change that name; and
(iv)to comply with such further conditions as the local government thinks fit to impose in respect of the proposed street."
It is common ground that the plans of the subdivisional roads and drainage delivered to the City accord with the conditions of subdivision approval referred to earlier. The plans show that the subdivisional drainage system for the subdivisional roads would drain downhill and connect to the existing public drainage system in a public road to the south‑west of the Cityway land.
By letter dated 30 January 2006 the City, in effect, approved the plans of the subdivisional roads and drainage but purported to impose a condition that Cityway "agree to undertake the required works to complete the drainage works in the area i.e. connect to the recently constructed system in Kobus Heights". The "recently constructed system in Kobus Heights" is a drainage system constructed by the subdivider of the adjoining, upstream property to the east of the Cityway land. In practical terms this would require Cityway to extend the proposed subdivisional drainage system by 1.0 metre to the common boundary and by approximately 2.0 metres beyond the common boundary to a temporary sump constructed by the subdivider of the adjoining land. During the proceedings the City proposed an alternative connection between Cityway's subdivisional drainage system and the drainage works on the adjoining land which would involve an extension of the drainage system on the Cityway land by approximately 15.0 metres to a different point along the common boundary, and the subdivider of the adjoining land extending the drainage system on that land to the same point.
Pursuant to s 295(3)(d) of the LG(MP) Act Cityway has sought review by the Tribunal of the City's requirement. The preliminary issue identified by Cityway is whether the requirement is beyond the power of the City under s 295(3). For reasons set out below the Tribunal considers that the requirement is beyond power and should be set aside.
The parties' submissions
Mr McKellar, who is the principal of Cityway, submits that s 295(3) of the LG(MP) Act relevantly limits the power of a local government to impose conditions in relation to proposed subdivisional roads. He submits that "there is no legal basis to require [Cityway] to drain anything more than [its] subdivision and/or subdivisional streets".
Mr RG Davies, who is the City's Manager Technical Services, does not make any submission as to whether the requirement is within power. Rather, Mr Davies contends that the necessary drainage works to give effect to the City's requirement are "minor" and notes that the consultant engineer of the adjoining subdivider has agreed in principle to Cityway entering its land to carry out these works. Mr Davies also submits that the alternative proposal put forward during the proceedings which would require each subdivider to extend its subdivisional drainage system to a common point along the boundary is "in line with the WAPC approval for the development, which stipulated that drainage easements would be necessary" and "would seem to be the fairest compromise to both developers and would result in Council receiving a complete drainage system, rather than that which Council faces, if a connection is not made". He also contends that the most appropriate time to complete works to connect the drainage systems is while contractors are on site and boundary fences and other structures are not yet in place.
Consideration of the preliminary issue
Mr McKellar's contention that the City's requirement for connection to the adjoining, upstream drainage system is beyond the power conferred by s 295(3) of the LG(MP) Act is correct. The section authorised a local government to require a subdivider "to amend the drawings or specifications or both" (s 295(3)(b)(i)). However, read in the context of the section as a whole, and in particular the words in subsection (3)(a)(i) and (ii), the words "drawings and specifications" refer to "drawings and specifications of proposed streets". The power of a local government to require an amendment to the drawings or specifications does not extend to an amendment in relation to drainage beyond the drainage associated with subdivisional roads and certainly does not extend to requiring connection of an adequate drainage system serving proposed subdivisional roads and an upstream drainage system. Moreover, the requirement in subsection (3)(a)(iv) that the subdivider deliver to the local government "such other information including information relating to … drainage … as the local government requires" does not relevantly result in the City's requirement being within power. Read in the context of the subsection and the section as a whole, the words "information relating to … drainage" refer to "drainage associated with or relevant to proposed subdivisional roads".
Finally, the power of a local government to require a subdivider "to comply with such further conditions as the local government thinks fit to impose in respect of the proposed street" (s 295(3)(b)(iv)) is self‑evidently limited to conditions "in respect of the proposed street". As noted earlier in these reasons, it is common ground that the road and drainage plans delivered to the City accord with conditions of subdivision approval which require that subdivisional roads are to be constructed and drained and that the land the subject of the subdivision is to be provided with an adequate outlet drainage system at Cityway's cost. The requirement which the City purported to impose is not "in respect of the proposed [subdivisional] street[s]". Rather the requirement is in respect of a wider public purpose of "Council receiving a complete drainage system" to quote Mr Davies. However, the City was not authorised by s 295(3) of the LG(MP) Act to impose a requirement in the circumstances of this case to give effect to this purpose.
As noted earlier s 295(3) of the LG(MP) Act was recently repealed. Section 170 of the Planning and Development Act 2005 (WA) (PD Act) confers similar powers on a local government to those previously conferred by s 295(3). The requirement of the City would also be beyond the power of a local government under s 170 of the PD Act in the circumstances of this case.
Conclusion
The Tribunal considers that the City's requirement that Cityway "agree to undertake the required works to complete the drainage works in this area i.e. connect to the recently constructed system in Kobus Heights" is beyond the power which was conferred on a local government under s 295(3) of the LG(MP) Act and would be beyond the power conferred on a local government under s 170 of the PD Act in the circumstances of this case.
Although the City's desire to receive "a complete drainage system" is understandable and reflects a broader public interest, it cannot lawfully be achieved in the circumstances of this case by the requirement in question. Section 295(3) of the LG(MP) Act authorised a local government (and s 170 of the PD Act now authorises a local government) to require connection of a subdivisional drainage system which drains subdivisional roads to an off‑site drainage system where the connection is necessary for the proper drainage of the subdivisional roads. However, in the circumstances of this case the connection to the upstream drainage system required by the City is unrelated to the drainage or any other aspect of the proposed subdivisional roads. The requirement is, therefore, beyond power.
It follows that the application for review should be upheld and the decision of the City to impose the requirement the subject of these proceedings should be set aside.
Costs
Mr McKellar applies for an order that the City pay Cityway's costs of the proceedings. As the Tribunal has said in a number of cases, the starting position before it is that each party bears its own costs in a proceeding: see State Administrative Tribunal Act 2004 (WA) (SAT Act) s 87(1). However, s 87(2) clearly confers a discretion on the Tribunal to make an order for the payment by a party of any of the costs of another party unless otherwise specified in the enabling Act: Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341 at [12]; Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53 at [28].
The established practice of the Tribunal in review proceedings is that normally the discretion as to costs will be exercised such that each party should bear its own costs of the proceedings. There does not appear to be any reason in this case as to why the Tribunal's discretion should be exercised differently. Although the Tribunal has found that the City acted beyond power, it has not been suggested that it did so for any ulterior purpose nor that it acted unreasonably in defending the proceedings. I am also satisfied that the City genuinely attempted to make a decision on its merits: SAT Act s 87(4)(b).
Orders
The Tribunal makes the following orders:
1.The application for review is upheld.
2.The decision of the respondent communicated to Civil Technology by letter dated 30 January 2006 that the applicant "agree to undertake the required works to complete the drainage works in this area i.e. connect to the recently constructed system in Kobus Heights" is set aside.
3.Each party is to pay its own costs of the proceedings.
I certify that this and the preceding [19] 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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