Commercial Properties Pty Ltd and Western Australian Planning Commission
[2008] WASAT 278
•21 NOVEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: COMMERCIAL PROPERTIES PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 278
MEMBER: MR P McNAB (MEMBER)
MR R EASTON (SENIOR SESSIONAL MEMBER)
HEARD: 19 AUGUST 2008
DELIVERED : 21 NOVEMBER 2008
FILE NO/S: DR 113 of 2008
BETWEEN: COMMERCIAL PROPERTIES PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision of land - Aged care and retirement facility - Staged development - Local government approved facility - Strata title sought by owner - Western Australian Planning Commission (WAPC) refusing to consent to subdivision - Survey-strata approval sought by applicant - WAPC insisting upon built strata - No specific written policy in existence - WAPC motivated by amenity impact of separate titles leading to uncoordinated construction occurring over time - Impact on elderly persons - Noisesensitive premises ('Meditation Centre') adjacent to site - Whether surveystrata subdivision inconsistent with local government approval for one integrated facility - Whether surveystrata might lead to vacant lots and endanger funding and maintenance of communal facilities - Tribunal found no planning principle offended by staged development through surveystrata - Land use restrictions and obligations would continue to apply to strata owners - Amenity and other concerns could be addressed by application of proper conditions - Application allowed - Decision of WAPC set aside - Conditional approval for surveystrata subdivision given
Legislation:
Metropolitan Rural Policy, cl 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 218, s 242
Shire of Mundaring Town Planning Scheme No 1
Shire of Mundaring Town Planning Scheme No 3, cl 3.1, cl 3.1.8, cl 3.1.10, Sch 1
Strata Titles Act 1973 (NSW
Strata Titles Act 1985 (WA), s 5C, s 6, Sch 1, Sch 2
Result:
Application for review allowed
Category: B
Representation:
Counsel:
Applicant: Mr M Hardy
Respondent: Ms C Ide
Solicitors:
Applicant: Hardy Bowen
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Goldin v Minister for Transport (2002) 121 LGERA 101
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Teller Properties Pty Limited v Randwick City Council [1994] NSWLEC 97
Woodlands v Sutherland Shire Council [1994] NSWLEC 28
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Commercial Properties Pty Ltd sought a review of the refusal of the Western Australian Planning Commission to give its approval for the subdivision of a rural lot in Mundaring into 34 surveystrata lots. The lot had a special purposes zoning related to aged care.
The applicant had obtained development approval from the Shire of Mundaring to develop 34 aged persons dwellings with various communal facilities on the site.
Next door to the proposed facility was a noisesensitive site, namely a meditation centre. The centre had earlier unsuccessfully challenged the development approval in the Supreme Court of Western Australia. The centre was given leave to make submissions in this matter.
The Western Australian Planning Commission refused to grant its consent for subdivision, as Commercial Properties had sought a surveystrata. However, the Western Australian Planning Commission would have approved a built strata subdivision.
The Tribunal noted that 'survey strata titles [would] enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots'.
The Western Australian Planning Commission was concerned that without buildings being in place prior to subdivision there might be an amenity impact arising from the existence of separate titles (and vacant lots), leading to uncoordinated construction occurring over time, and endangering the funding and maintenance of communal facilities.
The Commission did not have in place any written policy governing such a case.
The Tribunal decided that on the facts of the case there was insufficient justification in terms of underlying planning values or principles 'to warrant the imposition of a significant restraint upon the owner/developer's otherwise lawful and approved use of its land'.
Therefore, the Tribunal set aside the decision under review and surveystrata subdivision approval was given by the Tribunal upon extensive conditions.
Introduction
These proceedings involve an application brought by Commercial Properties Pty Ltd (applicant) for a review of the decision of the Western Australian Planning Commission (Commission or respondent) made on 18 March 2008 to refuse subdivision approval of Lot 77 Jacoby Street, Mundaring (site) into surveystrata lots.
The applicant had obtained development approval from the Shire of Mundaring (Shire or Council) to develop 34 aged persons dwellings, a community centre and a manager's residence on the site.
The subdivision application to the respondent had sought approval to create 34 surveystrata lots and one common property lot. The common property lot was proposed to contain the driveway, visitor parking bays, the community centre and open space.
For the reasons that follow, we have concluded that the respondent ought not to have refused survey-strata subdivision.
Site and locality
The site has a rectangular shape with a street frontage of approximately 98 metres, a depth of approximately 300 metres, and an area of 2.9180 hectares.
The land is located in a rural environment between the localities of Mahogany Creek and Mundaring and currently accommodates a vacant building that formed part of the Mundaring Rest Home, established in 1973.
The locality is generally typical of a rural residential lifestyle. The relevant exceptions to this observation are the subject site itself and the adjoining site to the east (Lot 78). The adjoining lot, Lot 78, is a meditation centre and has been the source of objections to the proposed development. These are considered further below.
Planning framework
The site is zoned 'Rural' under the Metropolitan Region Scheme (MRS) and the surrounding locality is zoned 'Rural Landscape Living' under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3). The site and the adjoining meditation centre are the exceptions to the zoning in the locality, for they each have special purposes zoning.
The site is zoned 'Special Purpose - Rest Home'. Schedule 1 of TPS 3 describes the permissible uses for the site as 'AA'; that is, 'a use that is not permitted unless special permission is granted by the Council'. The 'AA' uses permitted in Schedule 1 are 'Aged and Dependent Persons' Home, Rest home, Retirement Centre, Caretaker's residence, Manager's residence, Incidental and admin[istrative] uses'.
The adjoining Lot 78 is zoned 'Special Purpose - Meditation'. Schedule 1 of TPS 3 describes the permissible uses for the site as 'AA' with the uses being described as 'Meditation Centre, Meditation room building, Kitchen/dining/store building, Laundry/workshop building'.
Clause 3.1 of TPS 3 describes the objectives for the various zones, including that for rural landscape living (in cl 3.1.8 of TPS 3) and that for special purpose zones (see cl 3.1.10 of TPS 3).
Relevant to this review are the objectives of the respondent's 1995 Metropolitan Rural Policy (MRP). In cl 2, a relevant objective is to 'safeguard the operations of existing and future special uses.' Also relevant are the respondent's development control policies: Development Control 1.1: Subdivision of Land - General Principles (DC 1.1) and Development Control 1.3: Strata Titles (DC 1.3). See also, Development Control 3.4: Subdivision of Rural Land (DC 3.4).
We will return to elements of the planning framework later in these reasons.
History of development on the site
The background to this review is somewhat lengthy and complex. It commences in 1973 when the 'Mundaring Rest Home' (Rest Home) was approved and subsequently built on the site which was then zoned 'Rural' in the Shire of Mundaring Town Planning Scheme No 1 (TPS 1). The Rest Home provided accommodation for approximately 15 frail aged persons.
In 1979, an application was made to the Shire to add 30 retirement units to the site. The Shire resolved to support the application subject to an amendment to TPS 1 amendment changing the zoning form 'Rural' to 'Special Purpose - Aged Persons Homes'. The amendment took effect on 18 January 1980.
However, the approval for the 30 retirement units eventually lapsed. Thereafter, numerous other development applications were approved by the Shire for the site over the years but these also all eventually lapsed.
In the early to mid-1990s the then existing rest home ceased operations.
TPS 3 commenced in March 1994 and modified the form but essentially not the substance of the zoning of the land. In 1998, a planning appeal successfully removed a planning condition imposed by the Shire that the units were not to be strata titled: see the history recited in Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 (Re Shire of Mundaring) at [18] [22].
On 6 October 2000, the respondent approved a built strata application for subdivision in respect of 36 built strata units of 187 square metres and common property. This approval was consistent with a development approval issued by the Shire at around the same time. Again, these approvals were not acted upon.
In January 2005, the applicant lodged an application with the respondent for 34 surveystrata lots and common property. This application was deferred at the request of the Shire.
In March 2005, the Shire received an application for 34 aged and dependent persons units, together with community facilities and services, and a fivebed respite care facility. In July 2005, the application was deferred until such time as:
a)the applicant provided information describing the manner in which the development will be operated and managed (including proposed tenure arrangements) to demonstrate to Council's satisfaction that use of the land will occur for the bona fide use of a 'Rest Home'; and
b)legal advice has been obtained from Council's Solicitors in respect of the current application for 34 aged and dependent persons units and amenities building on the subject lot, including the additional information received pursuant to a) above.
The additional information sought was subsequently received and Council resolved on 27 September 2005 to approve the application. The conditions attached to the approval contained detailed requirements with reference to the management of the site.
At its meeting on 13 December 2005, the Shire dealt with a parallel application to the respondent for the proposed surveystrata subdivision into 34 lots with common property. The Council resolved to advise the respondent that it recommended that the application be refused for the following reason:
The survey-strata titling of the proposed 34 unit aged [and] dependent grouped dwelling development approved by Council on 27 September 2005 would result in individually owned dwellings within the lot. It is considered by Council that this would be contrary to the intent of the Special Purpose zoning of the subject lot, envisaging a single entire facility under central management and control providing services to persons as occupants of the home.
Just after the Shire's September 2005 approval, the owners of the adjoining Lot 78 contested in the Supreme Court of Western Australia the validity of the Shire's development approval for 34 units.
On 28 June 2007, the Supreme Court, in Re Shire of Mundaring, declined to invalidate the Shire's decision.
Following the Supreme Court's decision, on 29 June 2007, the applicant wrote to the respondent and requested that the deferred decision on the surveystrata application be processed. The matter was again referred to the Shire and on 25 September 2007, the Council resolved to recommend to the respondent that it support the surveystrata application subject to various conditions including:
(i)the preparation of a management statement in accordance with s 5C of the Strata Titles Act 1985 (WA); and
(ii)that the applicant submit 'a revised plan to the Shire of Mundaring which reflect[s] the most recent application for planning approval dated October 2006, illustrating 32 aged persons units and a 15 bed rest home facility'.
A draft management statement has been submitted to the respondent.
At the time that this application for review was lodged there were, it appears, two current planning approvals each purporting to be valid in respect of the site: one for 34 units expiring in October 2008 and one for 32 units expiring in September 2009.
In February 2008, the Shire issued a building licence for an upgrade and extension to the existing building. The facilities proposed were consistent with the conditions of the 34 unit development approval and included a fivebed respite facility, community facilities, a doctor's room, a gymnasium, craft room, dining room and lounge.
In May 2008, the Shire granted approval for site works associated with the overall development of the site.
It is unnecessary in these proceedings to resolve any questions that may arise out of these apparently 'competing' approvals. For present purposes, it is sufficient to observe that no party suggests that any development approval (particularly, say, for the 34 lots reflected in the building licence) or support for a corresponding surveystrata, is somehow invalid administrative action on the part of the Shire.
Finally, we note that Mr AA Stewart, an expert planner appearing as a witness for the applicant, stated that he had visited the site and that he had observed these works under construction.
The proposed subdivision
The proposed subdivision is to create 34 surveystrata lots varying in size from 310 square metres to 479 square metres. This is in addition to the common property which will contain the facilities such as the access road and the central building.
The significant difference between this application and the earlier approval by the respondent in 2005, in respect of a built strata application, is that the surveystrata titles will enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots.
The respondent's decision
The respondent received the application on 7 January 2005 but, as has been mentioned, deferred a decision until after the result of the Supreme Court action referred to above. On 18 March 2008, the respondent refused the application for the following three reasons:
(1)The proposed survey-strata subdivision does not comply with the Commission's Policy DC 1.1, a provision of State Planning Policy No 1 (State Planning Framework) by reason of the proposal being inconsistent with orderly and proper planning. The development of the site in accordance with the Shire of Mundaring Town Planning Scheme No 3 is reliant on the coordinated development of the site as approved by the Shire of Mundaring.
(2)The creation of 34 vacant survey-strata lots could impact on the provision of the communal services required by the Shire of Mundaring's approval to commence development on site and have an adverse impact on the amenity of the [residents] of the proposed survey-strata scheme …
(3)Approval to the strata title application would set an undesirable precedent for the further subdivision of surrounding lots.
The notice of refusal contained the following advice note explaining the respondent's position:
The applicant is advised that the Commission does not consider the creation of vacant survey-strata lots as being suitable for the form of development approved on site. Support of the proposal is dependent on the development of the site in accordance with the Town Planning Scheme provisions and the approval issued by the Shire of Mundaring. That applicant is advised that the Commission considers the appropriate form of tenure to be a built strata application.
The central issue
Thus, the following issue arises for determination in this review: Is it a proper exercise of discretion in the circumstances of the case to obligate the applicant to build the proposed facility before the issue of strata titles in respect of subdivision?
The respondent's case
The respondent alleges that questions of amenity are a particular concern in this case because the occupants of the site will be old and frail, and because there is a noisesensitive premises on the adjoining lot (that is, the meditation centre).
The respondent's concerns ultimately may be found, albeit at a most general level, in parts of its existing policy framework, mentioned above. Relevant objectives of the MRP thus include the following aims:
•[to] remove or reduce existing and potential conflicts between incompatible land uses;
•[to] safeguard the operations of existing and future special uses.
Similarly, objectives of DC 1.1 include the following aims:
•to ensure that subdivision is consistent with orderly and proper planning;
•to facilitate development which achieves appropriate standards of health, safety and amenity.
Mr MS Logan, a senior town planner and team leader of the respondent's planning appeals unit, submitted expert opinion evidence on behalf of the respondent. He told the Tribunal that the respondent accepted that the proposal was capable of subdivision as had been proposed, but he nevertheless argued in favour of a built strata rather than a surveystrata.
Mr Logan acknowledged during the hearing that the respondent did not have a written policy that dealt specifically with this issue, namely when it was appropriate to favour the use of a built strata over a surveystrata. However, Mr Logan argued that the lack of a written policy was not so significant because, in this particular case, the land use was unusual because of both its special zoning (that is, special purpose - rest home) and because it adjoined another lot with land use that was also unusually zoned (that is, special purpose - meditation). Consequently, the situation was created where amenity had itself become a very significant issue. The lack of a written policy was less important because the unusualness of the situation would have been unlikely to have ever been contemplated by such a policy.
The respondent's view, supported by Mr Logan, was that the 2005 development approval issued for the site was, in effect, an integrated scheme designed specifically to meet the requirements of the special use associated with the site.
Mr Logan said in his witness statement, at [15], that:
[T]he proposed development can only be considered 'complete' when all the components of the scheme have been established (in accordance with the provisions of the 2005 [development approval]). When this stage is reached, the [development] will … be able to operate at an optimum level, in support of the goal of orderly and proper planning, and [the] benefits that will flow are likely to relate to matters including those of health, safety, order, amenity, convenience and [the] general welfare, as well as efficiency and economy. Because of the scale and magnitude of the proposed development, it will inevitably take a period of time before it is fully implemented, and during this period the scheme is likely to operate at sub-optimal levels.
Mr Logan argued that a built strata was more likely to result in the early construction and completion of the 34 dwelling units. He noted that the applicant had sought comfort in the staged development of similar projects. However, he argued that the other projects relied on by the applicant were larger but regardless of size, the minimum stage in them was some 20 dwelling units. Hence, if a similar scale of building operations were to be applied here then this project could be completed in just two stages. He further observed that:
[I]n considering this matter, it is necessary to be mindful of the fact that the communal and respite facilities will be constructed and operational ahead of the occupation of the proposed 34 dwelling units, and particularly as the respite centre is likely to accommodate the aged, frail and ill, amenity considerations are likely to rank highly.
Mr Logan argued that a major problem with 34 surveystrata lots was the potential for 34 individual owners to enter into 34 individual building contracts with construction occurring randomly around the site and for many years to come. Therefore, he suggested that any amenity loss (for example, caused by construction work) would not be a temporary amenity loss, but a continuing or longterm amenity loss.
Thus, in addition to general amenity concerns, it could be easily imagined a situation where a series of builders were operating on the site at any given time with potential damage to the internal roads, soakwells and services, but with no necessarily clear line of responsibility attached to any particular builder. The respondent's preference for built strata, if imposed, would involve one builder for any one stage and a clear line of responsibility for managing issues such as amenity and damage.
Finally, the respondent was concerned that a surveystrata might increase the probability of a failure to provide the respite facilities.
The concern was that a surveystrata subdivision is more likely than a built strata subdivision to result in a situation where the body corporate finds that it cannot support the respite facilities because the owners of vacant lots will be less willing to support facilities that they are not using.
The draft management statement outlines the theme and objects of the estate (see By-Law 21) including:
1.To establish on the parcel an enclave of privately owned homes for the occupancy by persons aged 55 years and over only[,] and a communal social centre ('Community Centre') located on common property, all of which are linked together by a footpath network, are secure, are sympathetic to the local environment and more generally to the Mundaring 'hills' environment and which facilitate a socially interactive and rewarding lifestyle for senior citizens.
2.To provide a residential environment with facilities that allow, facilitate and enhance a Resident's independent living and supports the concept of ageing in place …
In the respondent's internal report leading to a decision on the application, it was observed that:
[T]he Supreme Court found [in Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132] that a 'rest home' use is a necessary component of any broader development under the permissibility of uses within the 'Special Purpose - Rest Home' [TPS 3] provisions. The development of aged accommodation without the inclusion of respite beds and facilities is contrary to the requirements of the scheme … There is also no provision for the ongoing funding and management of these facilities … The Management Statement refers to the management of the community centre by the strata company at all times in a manner that is consistent with ByLaw 21. However, there is no reference anywhere within the draft management statement to the continued provision of the 5 bed respite care facility.
Given the alleged lack of certainty of funding and the Supreme Court's finding that a 'rest home' component is a necessary part of the proposal, the respondent argued that if the Tribunal supported a survey-strata subdivision, then amongst the conditions of approval should be a condition that required the management statement to address the management and continued provision of the respite care facility and related matters, such as the onsite manager and the funding of the operation and maintenance of the community and respite care facilities through a strata levy. The draft conditions submitted by the respondent fully develops this requirement in condition 11, parts a) to d) - see below.
Third party's submissions
The trustees of the owner of the neighbouring Lot 78, the Sayagyi U Ba Khin Memorial Trust (which runs the meditation centre), were given leave by the Tribunal pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act) to make limited written submissions in the matter.
One of the trustees, Mr DH Solomon, provided extensive written submissions on questions of both the law and the practicalities of the proposed development, mainly centred on the enforceability of certain conditions of the subdivision. In this context, there were concerns with the management of the operation, its facilities and related amenity issues. The concerns advanced by the trustees are not, speaking generally, inconsistent with the respondent's arguments, although the trustees were critical of the respondent's presentation or view of certain of the issues. The third party also sought to have certain conditions made in its favour, if the subdivision were approved.
The third party also sought to agitate, it appears, the issue of the consistency of the development with its development approval. These matters are not within our jurisdiction and, in any case, appear to have been mostly resolved by the decision in Re Shire of Mundaring.
Both the applicant and the respondent filed responsive written submissions.
With respect to the third party and its submissions, we do not share the view that any conditions that we could possibly impose (if any) would have no real prospect of enforceability into the future. Such conditions would govern land use (as does the existing zoning and development approval), would run with the land, and would be enforceable in the usual way against any owner or developer of the land, including a person holding a survey-strata title: cf s 218 of the PD Act. Thus, in Teller Properties Pty Limited v Randwick City Council [1994] NSWLEC 97 Bannon J said (emphasis added):
Development consent to use the whole property as a motel does not carry any mandatory requirement for such use. It need not be used for any thing. The permitted use of the property is a relevant consideration in granting strata development. If there was a requirement for positive acts of use for example under conditions of consent requiring performance of duties it would be in my opinion a ground for refusal, where performance of the positive acts depended on private agreement and was not controlled by conditions imposed under the [Environmental Planning and Assessment Act 1979 (NSW)]. The exclusive planning regime imposed by the Act requires control under the Act and not under private agreement.
However as I have said planning permission in this case does not require positive acts. It only regulates use. I do not see that granting strata plan approval will alter the permitted use of the whole in any way. It will not alter the permitted use of the parts created by the grant of strata approval, although it will make it necessary for the owners of the parts to co-operate if they wish to use the land and the building thereon.
More specifically, and relating directly to the present case, in Re Shire of Mundaring McLure JA (Steytler P, Pullin JA agreeing) observed, at [34] [36] (emphasis added):
The applicants [the third party here] did not rely on any evidence or clearly identify the basis for their assertion that a survey-strata title development is inconsistent with the permissible primary uses or their related claim that a strata title development was incapable of satisfying condition 18 ['To preserve the character of the development as a rest home …'] of the approval. As I understand the submission, the substance of the objection is to individual ownership of the units (and any associated limitations on management and control) not the means for achieving ownership.
I am not satisfied that owner occupation of the proposed units is inconsistent with an aged and dependent persons' home, rest home or retirement centre. The conditions of [development] approval of the proposed development, in particular conditions 18 and 20 ['All occupants of each grouped dwelling unit shall be aged over 55 years'], give the development the requisite status. Further, there is no necessary inconsistency between ownership of the units and ongoing compliance with conditions 18 and 20 upon which the continuing occupation of the development will depend. Regardless of who owns the units, all the occupants will no doubt be called upon, directly or indirectly, to bear the cost of the facilities the subject of condition 18 whether or not the occupants choose to avail themselves of their entitlement to use them.
I accept that the mechanism for securing continued compliance with condition 18 will in due course require close consideration. That mechanism will be the detailed management statement in which issues of ongoing use and management will be addressed (see s 5C, s 6, s 6A and s 42 of the Strata Titles Act). Whether the proposed survey-strata scheme (including the detailed management statement) is adequate to ensure continuing compliance with the conditions of planning approval is a relevant consideration in determining whether to approve any proposed survey-strata scheme. However, the application considered by the Council of the Shire was an application for planning approval. It was not an application to approve a survey-strata scheme. The Council does not have the power to approve such an application. Further, the planning approval does not endorse or approve the development on the basis that it is to be strata titled. The subdivision of land by a survey-strata scheme requires approval by the Western Australian Planning Commission ('Commission'): s 25B of the Strata Titles Act. The Shire's role is to provide comment to the Commission on the scheme which would include the scheme's ability to secure continuing compliance with the conditions of planning approval.
These judicial observations, taken together, suggest that land use restrictions and obligations are quite capable of continued enforcement. Further, we do not think that the third party ought to have any conditions made specially 'in its favour' which seek to insulate it from the ordinary consequences of development.
We reject the third party's contentions.
Applicant's case
The applicant called its Director and Principal, Mr CR Hartz, who gave evidence about the nature of similar developments to the one under review. In short, he suggested that staged developments were not an unusual arrangement, and that there were advantages for both the developer and for buyers in a survey-strata proposal. His views were backed up by the evidence of Mr AI Pagett, a legal practitioner involved extensively 'in providing legal advice to proponents and operators of retirement villages'.
Mr AA Stewart, a senior town planner employed by Greg Rowe and Associates, gave expert evidence for the applicant. In summary, he told the Tribunal that:
a)There was, in his opinion, no impediment in either TPS 3 or any associated planning instrument to the approval of a surveystrata.
b)To the extent that any of the following instruments had any relevance, the proposal was not inconsistent with either SPP 2.5, the MRP, DC 1.1, DC 3.4.
c)The proposal was consistent with any regulatory factor identified in DC 1.3 (dealing with strata titles). Thus, there was compliance with TPS 3 and matters such as water and sewerage, lot layout, access and the like.
d)Notions of 'orderly and proper planning' were essentially met by compliance with TPS 3.
e)The survey-strata application 'present[ed] the [r]espondent with an opportunity to impose an extra level of control to ensure [that] the site is developed in accordance with the Shire's approval'.
f)The Shire's approval 'will require the community facilities to be constructed and maintained whilst any of the dwellings are occupied, regardless of the ownership or the timing of construction of [the] dwellings on the remaining vacant lots'.
g)Any loss of amenity would be 'temporary'.
h)He agreed with the observation recorded in an internal email from one of the respondent's senior officers (Ms L Baxter) that 'this type of development lends itself to surveystrata …'
Discussion of the case
The unique nature of the proposed development and the site's drawn out (and, perhaps, peculiar) context and history makes the application of the respondent's broad land use policies' objectives in this area problematic. The respondent's specific policy on strata titles (DC 1.3) does not address this particular situation. Accordingly, Mr Logan properly concedes that either strata path is legally and administratively available for the land. He also thought, however, that this context meant that it might be difficult to regulate such cases by a written policy; in any event, notions of proper and orderly planning were a sufficient basis to underwrite the respondent's concerns.
On the formulation of a written policy, we are not so sure. It can be reasonably imagined that the Commission might wish to formulate guidelines (for itself and local government) wherever questions arise about staged development and amenity and infrastructure concerns, especially perhaps given the growth market of facilities for aged and frail persons. The notion of orderly and proper planning is an overarching principle that might be the basis for such a policy exercise, but it does not offer much direct assistance in addressing the specific issues in this case.
Accordingly, absent such considered work, the matter boils down to an exercise of discretion as to whether in this case sufficient justification in terms of underlying planning values or principles has been advanced to warrant the imposition of a significant restraint upon the owner/developer's otherwise lawful and approved use of its land.
In Woodlands v Sutherland Shire Council [1994] NSWLEC 28, Bannon J said (emphasis added):
The [Hebron Retirement] Village [there under consideration] is so built and arranged that it is suitable for strata subdivision. To approve a strata plan does not appear to me to be inconsistent with the status of Hebron as a retirement village, nor with the terms of the [governing] Corella Trust. There is nothing in the objectives of the Corella Trust to prevent it applying equally to land the subject of a strata plan, or land which is not so subject. Mr Malcolm's fears of profit making are not for this Court to decide. Building units, selling them and utilisation of the moneys obtained, to build more units, does not appear to me to be inconsistent with the objectives of the Corella Trust nor with the housing needs of the Local Government area, for elderly persons.
Although these observations were made in the context of a public charity and under a different regulatory regime (a deemed refusal in respect of development approval, under the Strata Titles Act 1973 (NSW)) they suggest that there is no reason why strata arrangements leading to the '[b]uilding [of] units, [the subsequent] selling [of] them and [the] utilisation of the moneys obtained, to build more units' offends any basic planning principle or value.
We are of the view that the respondent's position cannot be maintained. There is of course merit in Mr Logan's various concerns summarised above. However, these regulatory concerns are, in our respectful opinion, insufficient to warrant refusal of a surveystrata. This is so because we think that:
a)no essential planning principle is breached;
b)there is no directly applicable, or sufficiently specific, written policy in place demonstrating why a survey-strata subdivision might be inappropriate;
c)the respondent's expert properly and fairly concedes that a built strata is a desirable (but not necessarily a critical) outcome;
d)conditional development approval has been given by the local government (consistent with a long history of similar approved uses for the land);
e)there are significant land use controls in place at the Shire level; and
f)at least some of the respondent's concerns can be sufficiently regulated directly or indirectly through the application of proper conditions.
One of the other reasons for refusal was the respondent's concern (see above) that approval would set an undesirable precedent for the further subdivision of surrounding lots. Precedent was considered by the Tribunal in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [71] [75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent might be a relevant consideration in a planning assessment applying Goldin v Minister for Transport (2002) 121 LGERA 101, as consistent with Western Australian authority:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
For precedent to be a relevant limiting factor both tests must be satisfied. In this instance, for the reasons discussed earlier, the proposed subdivision is 'unobjectionable'. No adverse precedent issues therefore arise.
Conclusion and orders
For the reasons given above, the decision under review should be set aside and in its place there should be substituted a decision giving the applicant survey-strata subdivision approval upon certain conditions. We accept Mr Logan's expert evidence as to what conditions are in this matter necessary, usual or reasonable. Moreover, the applicant consented to all of the respondent's proposed conditions 'save that there should be an exception for spouses or partners of persons who may not be 55 years of age'. We agree with that exception.
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision under review is set aside and in substitution therefor there will be an approval for a surveystrata subdivision in terms of the applicant's application for the same, upon the following conditions:
CONDITIONS
(i)The balance of Lot 77, including the driveway and community centre, being shown on the surveystrata plan as a common property lot. (Local Government)
(ii)The land being filled and/or drained at the subdivider's cost to the satisfaction of the Western Australian Planning Commission and any easements and/or reserves necessary for the implementation thereof being granted free of cost. (Local Government)
(iii)The land being graded and stabilised. (Local Government)
(iv)Arrangements being made with the local government for the upgrading of Jacoby Street. (Local Government)
(v)The common property access driveway and car parking bays being constructed and drained to the specification of the Shire of Mundaring. (Local Government)
(vi)The community centre/respite care facility and associated development within the common property lot being constructed in accordance with a valid approval to commence development issued by the Shire of Mundaring. (Local Government)
(vii)Suitable arrangements being made with the Shire of Mundaring for the provision of vehicular crossovers to service the lots shown on the approved plan of subdivision. (Local Government)
(viii)All existing buildings, outbuildings and/or structures, with the exception of the existing rest home building (to be converted), being demolished and materials removed from the proposed lots. (Local Government)
(ix)All existing redundant septic sewer systems including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems are to be decommissioned, removed, filled with clean sand and compacted. (Local Government)
(x)Wastewater treatment and disposal systems to service the proposed lots being provided prior to the submission of the survey-strata plan. All wastewater treatment and disposal systems are to be located within the common property. (Department of Health)
(xi)A management statement being prepared and submitted for the Western Australian Planning Commission's consideration and written confirmation in accordance with s 5C of the Strata Titles Act 1985 (WA), to include the following additions to the bylaws contained in Schedule 1 and Schedule 2 of that Act:
(a)Development or redevelopment on the surveystrata lots is to comply with a development approval issued by the local government.
(b)The management and maintenance of the strata scheme shall include the continued provision of services and facilities for the residents including the provision of the respite care facility, an onsite manager, medical services and social and personal services in accordance with the approval to commence development issued by the Shire of Mundaring. This is to include the funding of the operation and maintenance of the community/respite care facilities and common property areas through a strata levy.
(c)The development may only be occupied while it provides the communal facilities/medical services/respite care in accordance with the approval to commence development issued by the Shire of Mundaring.
(d)Amendment to or repeal of the above provision cannot be effected without the Western Australian Planning Commission's agreement. (Local Government)
(xii)Notification in the form of a s 6 restriction of use, pursuant to the Strata Titles Act 1985 (WA), is to be placed on the surveystrata plan stipulating that:
'Dwellings may only be occupied or leased by aged or dependent persons of 55 years or over (which shall include the spouse or partner of such a person even if that person is not of that age), provided that this provision shall also not prevent a transfer to persons married or partnered to each other, one of whom is over the age of 55.'
(Local Government)
(xiii)The provision of uniform screen fencing along the north, west and east boundaries of the site (Lot 77 Jacoby Street) to the specifications of the Shire of Mundaring. (Local Government)
(xiv)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under any relevant legislation. (Local Government)
(xv)Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lots shown on the approved plan of subdivision. (Water Corporation)
(xvi)Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision. (Western Power)
(xvii)Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the removal, relocation and/or replacement of electricity supply infrastructure, including plant and equipment, located on or near the lots shown on the approved plan. (Western Power)
(xviii)The transfer of land as a Crown Reserve, free of cost to Western Power for the provision of electricity supply infrastructure. (Western Power)
(xix)The applicant/owner shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that monetary contributions to the ongoing maintenance of the communal facilities will be required in the future. (Western Australian Planning Commission)
I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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