Crystal Lakes Pty Ltd and City Of Subiaco
[2006] WASAT 15
•27 JANUARY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: CRYSTAL LAKES PTY LTD and CITY OF SUBIACO [2006] WASAT 15
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 19 JANUARY 2006
DELIVERED : 27 JANUARY 2006
FILE NO/S: DR 616 of 2005
DR 617 of 2005
BETWEEN: CRYSTAL LAKES PTY LTD
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Development application Alterations and additions to dwelling house Height of external walls Variation to Residential Design Codes Method of calculation of "wall height" Whether determined from natural ground level at boundary or at wall Interpretation of planning instrument Incorporation of definitions from Residential Design Codes into planning scheme Whether qualification to defined meanings in Residential Design Codes "unless the context requires otherwise" also incorporated into scheme Literal and purposive interpretation Whether context requires that "wall height" does not have defined meaning Whether discretion available to allow exceedance of maximum wall height Draft amendment to definition of "wall height" Coty principle Significance of draft amendment Words and phrases: "building height", "wall height"
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 12(1), cl 12(3), cl 28(1), cl 39(3), cl 42(1), cl 78(1), cl 78(8), Sch 1 definitions "Height, Building" and "Height, Wall"
Interpretation Act 1984 (WA), s 18, s 32(2)
Residential Design Codes of Western Australia (2002), cl 2.2, definitions "Height, Building" and "Height, Wall", Figures 2A, 2B and 2C
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
1. Application for review upheld.
2. Development approval for demolition of a building at no 24 (lot 27) Union Street, Subiaco, partial rear demolition of a building at no 105 (lots 29 and 30) Heytesbury Road, Subiaco, alterations and additions including two storey extension to the building at no 105 Heytesbury Road and erection of a detached garage and pool at no 24 Union Street granted subject to conditions.
Category: B
Representation:
Counsel:
Applicant: Ms MMJ Tannock and Ms K Barrass
Respondent: Mr LA Tsaknis
Solicitors:
Applicant: Minter Ellison
Respondent: Watts & Woodhouse
Case(s) referred to in decision(s):
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) (1981) 147 CLR 297
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Hodge & Collard Pty Ltd and City of South Perth [2005] WASAT 295
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Robert Baccala and City of Fremantle (2005) 39 SR (WA) 21
Tangelo Design Consultants and Town of Vincent [2005] WASAT 67
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Crystal Lakes Pty Ltd sought development approval for alterations and additions to a dwelling house in Subiaco. The principal issue was whether wall height was to be determined by reference to natural ground level at the boundary or at the wall. This turned on whether, on its proper interpretation, the town planning scheme required that the definition of "Height, Wall" in the Residential Design Codes of Western Australia (2002) apply to the words "wall height" when used in a provision of the scheme.
The Tribunal determined that the definition did not apply, because the planning context and purpose of the scheme provision was different to the planning context and purpose of the definition. As the scheme was silent in relation to the method of calculating wall height, the Tribunal had regard to the method prescribed in an adopted planning policy.
The development complied with the maximum wall height when calculated in accordance with the planning policy. The Tribunal granted development approval subject to conditions.
Introduction
These proceedings involve an application brought by Crystal Lakes Pty Ltd pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) for review of the deemed refusal of a development application by the City of Subiaco. The development application proposes the demolition of a building at no 24 (lot 27) Union Street, Subiaco, the demolition of two storey additions at the rear of a dwelling house at no 105 (lots 29 and 30) Heytesbury Road, Subiaco, alterations and additions including a two storey extension to the house at no 105 Heytesbury Road and the erection of a detached garage and pool at no 24 Union Street.
The site is located at the southeastern corner of the intersection of Heytesbury Road and Union Street, Subiaco. It also has rear lane access to an unnamed laneway.
The site comprises three allotments. Two of the allotments have historically formed a single private residential property with its primary address to Heytesbury Road to the north and a secondary street frontage to Union Street to the west. The existing dwelling house straddles these allotments. The third allotment is to the south of the other two and comprises a building previously used as a surgery. This allotment has its primary address to Union Street to the west and also has access to the rear lane to the east. The total site area is approximately 1551 square metres.
The site falls approximately 1.5 to 2.0 metres from north to south and approximately 0.6 metre to 1.2 metres from east to west. As a result, natural ground levels at the southern and western external walls of the proposed two storey extension are higher than natural ground levels at the southern and western boundaries of the site, respectively.
The site is zoned "Residential" with a density coding of "R20" under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme).
The proceedings turn on the proper interpretation and application of cl 12(3) and cl 42(1) of TPS 4. The critical question is whether cl 12(3) has the effect that the definition of the term "Height, Wall" in cl 2.2 of the Residential Design Codes of Western Australia (2002) (Codes) applies to the words "wall height" when used in cl 42(1) of the Scheme. If that definition applies, then it is common ground that the proposed development exceeds the maximum "wall height" capable of approval under cl 42(1)(b) of TPS 4 and, subject to the potential availability of a discretion to vary maximum height, must be refused consent under the Scheme. However, if the definition of "Height, Wall" in the Codes does not apply to the words "wall height" when used in cl 42(1) of TPS 4 and if the method of calculating wall height set out in an adopted policy of the City applies, then it is common ground that the proposed development does not exceed the maximum "wall height" capable of approval and warrants consent subject to agreed conditions.
In these reasons, the Tribunal will at first set out relevant planning provisions of TPS 4, the Codes and the City's Residential Height (R15 and R20 Zones) Local Planning Policy (Height Policy), before considering how wall height is to be calculated under the applicable provisions, whether there is a discretion to vary maximum wall height and the significance in this review of a draft amendment to the definition of "Height, Wall" in TPS 4.
For reasons set out below, the Tribunal considers that the definition of "Height, Wall" in the Codes does not apply to the words "wall height" when used in cl 42(1) of the Scheme. In significant contrast to the definition of "Height, Wall", the term "wall height" in cl 42(1) relevantly refers to the height of an external wall in the context of regulating the maximum height of a building rather than in the context of regulating setback to a boundary. Under the applicable planning provisions, wall height is to be calculated in accordance with the Height Policy, that is, as the vertical distance between natural ground level at any point along the length of a wall and the uppermost part of the wall above that point (underside of the eaves or the top of the parapet, excluding minor projections).
As the proposed development complies with the maximum wall height capable of approval under cl 42(1)(b) of TPS 4, would not have any undue adverse impact on adjoining residential sites or the general amenity of the locality and meets the requirements of the Height Policy, the application warrants conditional development approval.
Relevant planning provisions
Clause 39(3) of TPS 4 states that "unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Codes] is to conform to the provisions of those Codes". Clause 42 of the Scheme sets out express "variations" to the provisions of the Codes. Clause 42(1) provides as follows:
"(a)Notwithstanding any provisions of the [Codes] to the contrary, buildings on land within the Residential Zone having an R Code density of R15 or R20 shall not exceed 6.5 metres overall height and 3.6 metres wall height;
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 9 metres overall height and 6 metres wall height, where the Council is satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality."
Clause 12(1) of TPS 4 provides that, "in this Scheme, unless the context otherwise requires, the words and expressions used have the meanings set out in Schedule 1". Schedule 1 contains the following definitions:
"Height, Building: has the same meaning given to it in the Residential Design Codes and the term "overall height" shall have the same meaning."
"Height, Wall: has the same meaning given to it in the Residential Design Codes."
On 25 October 2005, the City resolved to advertise an amendment to TPS 4 to replace the definition of "Height, Wall" in Sch 1 with a definition which measures wall height from natural ground level immediately below the wall, rather than from natural ground level at the boundary. The advertising period ended on 23 January 2006.
Clause 12(3) of TPS 4 provides as follows:
"Where a word or term is defined in the [Codes] then, notwithstanding anything else in the Scheme, that word or term when used in respect of residential development has the meaning given to it in the [Codes]."
Clause 2.2 of the Codes sets out definitions of words and expressions including "Height, Building" and "Height, Wall". Clause 2.2 begins with the following provision:
"In the case of residential development under the Codes, unless the context requires otherwise, words and expressions have the meaning given to them below."
The definitions of "Height, Building" and "Height, Wall" in cl 2.2 of the Codes are in the following terms:
"Height, Building
The vertical distance at any point from natural ground level to the uppermost part of the building above that point (roof ridge, parapet or wall), excluding minor projections above that point."
"Height, Wall
The vertical distance from natural ground level to the roof or parapet at any point in accordance with Figures 2A, 2B and 2C."
Figures 2A, 2B and 2C of the Codes are entitled "Measurements of Boundary Setbacks". The text below and next to the Figures states that the Figures are concerned with "[m]easurement of height for purposes of calculating setbacks" The explanatory text to the Figures states, in part, as follows:
"In the determination of setbacks, the following rules shall apply:
•In Figure 2A, 2B and 2C wall height (H) is the distance between the natural ground level at the boundary and the highest point immediately above the wall." (page 114)
The Figures show diagrammatically that wall height, which is designated by the symbol "H", is calculated for the purpose of determining minimum setback required from a boundary as the vertical distance from natural ground level at the boundary to the prolongation at the boundary of the height of the roof immediately above the wall, irrespective of any change in topography from the boundary to the wall.
The corresponding "element" in Pt 3 of the Codes to the definition of "Height, Wall" is "Element 3 Boundary Setbacks", whereas the corresponding "element" to the definition of "Height, Building" is "Element 7 Building Height". The explanatory text to Element 3 states that "the distance required to set back a wall from a boundary is a function of the height and length of the wall and whether there are major openings in the wall" (page 56). It also states that "[t]he matters to take into account in establishing the height and the length of walls for the purpose of determining side setbacks is illustrated on Figure 2" (page 56). Figure 2 includes Figures 2A, 2B and 2C.
The explanatory text to Element 7 emphasises the different planning context and purpose of the definitions of "Height, Building" and "Height, Wall" in the following passage:
"[T]he Codes refer [in the context of regulating building height] to the height of the structure at any point above the natural ground level immediately below that point. This distinguishes it from the measurement of the height of walls for the purpose of setbacks, where the height is measured from natural ground level at points on the boundary corresponding to the wall in question." (page 74)
The Acceptable Development provision of the building height requirements in Element 7 of the Codes is in the following terms:
"Except where otherwise provided for in an adopted Local Planning Policy, development that complies with the following is deemed to meet the relevant Performance Criteria:
A1.1Buildings which comply with Table 3 for Category B area buildings, except where stated otherwise in a Local Planning Policy or equivalent."
Table 3 is as follows:
| TABLE 3 Maximum Building Heights Area | |||
| Category A B C | |||
| Top of external wall (roof above) | 3m | 6m | 9m |
| Top of external wall (concealed roof) | 4m | 7m | 10m |
| Top of pitched roof | 6m | 9m | 12m |
Clause 78(1) of TPS 4 authorises the City to make planning policies in relation to any aspect of development control or any other matter relevant to the Scheme. Clause 78(8) provides that:
"A planning policy prepared under this clause shall be consistent with the Scheme and where any inconsistency arises the Scheme shall prevail".
The Height Policy was adopted by the City pursuant to cl 78 of the Scheme. The Objective of the Height Policy is "[t]o ensure that residential properties adjoining a development site and the locality within which the site is situated are protected from unacceptable amenity impacts caused by residential development which exceeds the height limit in Clause 42(1)(a) of the [Scheme]". The Policy is in the following terms:
"Any proposal for a new dwelling or for extensions to an existing dwelling, which results in a height greater than that permissible under Clause 42(1)(a) of the [Scheme] must achieve ALL the requirements of the following sections."
The sections of the Policy which follow contain requirements in relation to "wall height", "boundary setbacks (side and rear)", "bulk and scale", "open space", "privacy", "overshadowing" and "streetscape". The wall height requirement includes the following:
"The height of external walls as measured to the underside of the eaves must not exceed 6 metres above natural ground level."
Under the heading "DEFINITIONS", the Height Policy states, in part, as follows:
"For the purposes of this policy, the relevant terms are defined as follows:
…
Height (wall)
At any point along the length of a wall, the vertical distance between natural ground level at that point and the uppermost part of the wall above that point (underside of the eaves or the top of the parapet, excluding minor projections). *Please refer to note at the end of this policy.
Height (overall)
At any point the vertical distance between natural ground level at that point and the uppermost part of the building above that point (roof ridge, parapet or wall, excluding minor projections). *Please refer to note at the end of this policy."
The following footnote appears at the end of the Height Policy:
"* Note on the Calculation of Wall Height
The Mechanism used to measure wall height as described within this document is not legally correct and is in the process of being amended.
Please contact the City's Planning Services on 9237 9288 to discuss your proposal with a Planning Officer who will be able to assist you further and explain the legally correct mechanism used to measure wall height."
How is wall height calculated?
Mr LA Tsaknis, counsel for the City, concedes that it is apparent from the context in which Figures 2A, 2B and 2C appear in the Codes that "the wall height is an expression used in the context of determining boundary setbacks". However, Mr Tsaknis submits that "that does not negate the application and interpolation of the definition of wall height in the Codes to clause 42 of the Scheme". He contends that:
"It is to be observed that the interpolation of the definitions in the Codes to Scheme admits of no exception. It is not subject to the not uncommon exception 'unless the context indicates to the contrary' or similar qualification to the statutory definition."
Mr Tsaknis' submission is, in essence, that the literal meaning of cl 12(3) of the Scheme has the effect that the definition of "Height, Wall" in the Codes must apply to the determination of "wall height" under cl 42(1).
Ms MMJ Tannock and Ms K Barrass, counsel for Crystal Lakes, rely on the definition of "Height (wall)" in the Height Policy as the applicable, logical and rational mechanism to determine "wall height" for the purposes of cl 42(1) of the Scheme. Ms Tannock submits that the Codes permit and contemplate the adoption of local planning policies in relation to the regulation of wall height and that a local policy, such as the Height Policy, takes precedence over the "default" wall height provisions in the Codes. In the course of her reply to Mr Tsaknis' submissions, Ms Tannock also adopted an argument reflecting a proposition explored by the Tribunal with Mr Tsaknis during his address, namely, whether cl 12(3) of the Scheme imports the qualification to the definitions in cl 2.2 of the Codes that the terms have the defined meanings "unless the context requires otherwise". She submits that the context in which the words "wall height" are used in cl 42(1) requires that the definition of "Height, Wall" not apply to them.
Clause 42(1) regulates the maximum height of buildings on land zoned "Residential" and coded "R15" or "R20" under the Scheme and is a variation to the otherwise applicable building height provisions in Element 7 of the Codes. Whereas, absent cl 42(1), the applicable Acceptable Development provision in relation to building height (Category B in Table 3) would permit, without the need to resort to the Performance Criteria, a maximum wall height (with roof above) of 6.0 metres and a maximum roof height of 9.0 metres, the effect of cl 42(1) is to set maximum wall and roof heights which are lower than the Acceptable Development Category B heights, but to permit a variation up to Category B heights where the City (or the Tribunal on review) is "satisfied that there is to be no undue adverse impact on adjoining residential sites or the general amenity of the locality". Clause 42(1) also removes the potential for application of the Performance Criteria in Element 7 of the Codes.
It is clear from the definitions of "Height, Building" and "Height, Wall" in cl 2.2 (see [18]), Figures 2A, 2B and 2C (see [19] – [20]) and the explanatory text to Element 3 (see [21]) and to Element 7 (see [22]) that the definitions and their corresponding "elements" are concerned with fundamentally different planning contexts and purposes. Whereas the definition of "Height, Wall" and corresponding Element 3 operate in the planning context and have the planning purpose of regulating the minimum setback of walls from boundaries, the definition of "Height, Building", corresponding Element 7 and the variation to that Element in cl 42(1) of the Scheme operate in the planning context and have the planning purpose of regulating the maximum height of buildings, including their external walls, irrespective of setbacks to boundaries.
This difference in planning context and purpose does not mean that the definition of "Height, Building" in cl 2.2 of the Codes applies to the words "wall height" in cl 42(1) of the Scheme; TPS 4 does not, by its terms, define "wall height" by reference to the definition of "Height, Building" in the Codes. However, the difference demonstrates that the context in which the words "wall height" appear in cl 42(1) requires that the definition of "Height, Wall" has no application to them. In other words, the context clearly indicates that "wall height" in cl 42(1) does not mean "Height, Wall" as defined in the Codes.
The Tribunal rejects the City's submission that the planning context of the definition of "Height, Wall" does not negate its application to the words "wall height" in cl 42(1). On both a literal and purposive interpretation, cl 12(3) of TPS 4 imports the qualification subject to which the terms in cl 2.2 of the Codes are defined, namely, "unless the context requires otherwise".
On a literal interpretation, cl 12(3) imports the meaning given to a defined term in the Codes. The meaning given to a defined term in the Codes is not the defined meaning where the context requires otherwise.
Furthermore, in referring to the propriety of departing from the literal interpretation of legislation, Mason and Wilson JJ stated in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 321:
"It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."
In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, McHugh JA held at 423 424 as follows:
"A purposive and not a literal approach is the method of statutory construction which now prevails: cf Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272 273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. …
Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it insofar as, by addition or omission or clarification, the provision is capable of achieving the purpose or object."
Similarly, s 18 of the Interpretation Act 1984 (WA) states that, in the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object.
The purpose or object of cl 12(3) of TPS 4 is to ensure that words and terms used in respect of residential development in the Scheme are interpreted and applied in the same way as when used in respect of residential development in the Codes. It is the duty of the Tribunal to give effect to that purpose or object "by addition or omission or clarification". The purpose or object would be promoted if the qualification to the definitions in cl 2.2 of the Codes is imported with the definitions, because it would result in a word or term used in the same context in the Scheme and in the Codes having the same meaning and being applied in the same way. In contrast, the interpretation advanced by the City would not promote that purpose or object, because it would result in a word or term used in the same context in the Scheme and in the Codes bearing a different meaning and being applied differently. Thus, while Table 3 of the Codes (see [24]) does not use the words "wall height" in terms, it refers to "top of external wall" as a component of "maximum building height" and clearly sets a maximum Acceptable Development "wall height" in the same planning context and for the same planning purpose as cl 42(1) sets a maximum "wall height". If Table 3 used the words "wall height" in terms, the definition of "Height, Wall" would not apply to those words, because the context would require otherwise. A purposive if not a literal interpretation of cl 12(3) requires that the same result follow in relation to the meaning and application of the words "wall height" in cl 42(1).
For these reasons, the definition of "Height, Wall" in the Codes does not apply to the words "wall height" when used in cl 42(1) of the Scheme. Moreover, although the expression "Height, Wall" is defined in Sch 1 of the Scheme as having "the same meaning given to it in the Residential Design Codes", that definition only applies "unless the context otherwise requires": cl 12(1) TPS 4. For reasons discussed, the Tribunal considers that the context does require otherwise.
It follows that the Scheme is silent in relation to the method for calculation of "wall height" under cl 42(1). However, the City adopted the Height Policy for the purposes of cl 42(1). The Policy prescribes, as Ms Tannock submits, a logical and rational method for calculation of wall height, namely, "the vertical distance between natural ground level at [the relevant point along the length of the wall] and the uppermost part of the wall above that point (underside of the eaves or the top of the parapet, excluding minor projections)". In contrast, calculation of wall height for the purposes of cl 42(1) by reference to natural ground level at the boundary of a site makes little practical planning sense. As Ms Natalie Goode, the City's Senior Strategic Planning Officer, stated in a report to the City dated 11 October 2005, taking the reference point "from the level at the boundary and not immediately below the wall … causes significant design constraints on topographically variable sites". In particular, if natural ground level at the boundary is lower than at the wall, as is the case in relation to the site, calculating wall height relative to the boundary might unreasonably constrain built form and even preclude a second storey or require excavation. Conversely, if natural ground level at the boundary is higher than at the wall, calculating wall height relative to the boundary level might result in an uncharacteristically tall building.
It is common ground that the height of the external walls of the proposed development, when measured in accordance with the method prescribed in the Height Policy, complies with the maximum wall height of 6.0 metres above natural ground level.
The City (and the Tribunal on review) is required to have regard to the Height Policy when determining the development application: cl 27(4)(b) TPS 4.
The footnote to the Height Policy which states that "the mechanism used to measure wall height as described within this document is not legally correct" does not form part of the Policy. Section 32(2) of the Interpretation Act1984 provides that "a marginal note or footnote to a written law … shall be taken not to be part of the written law". Furthermore, as the Scheme is silent in relation to the mechanism to be used to calculate "wall height" for the purposes of cl 42(1), the mechanism prescribed in the Policy is not inconsistent with the Scheme. The footnote is erroneous in its statement that the mechanism used to measure wall height in the document "is not legally correct".
Having regard to the Height Policy, therefore, the proposed development complies with the maximum wall height of 6.0 metres capable of approval under cl 42(1)(b) of the Scheme.
Is there a discretion to vary maximum wall height?
Ms Tannock made an alternative submission that the City (and the Tribunal on review) has a discretion to approve the erection of a building which exceeds 9.0 metres overall height or 6.0 metres wall height. It is strictly unnecessary to determine this point in light of the Tribunal's other reasons and findings. However, as it was argued and is of wider significance in relation to residential development under the Scheme, the Tribunal will address it.
Ms Tannock advances three propositions. First, she contends that cl 28(1) of TPS 4 confers an express discretion to vary the maximum heights prescribed by cl 42(1). Clause 28(1) provides as follows:
"Except for development in respect of which the [Codes] apply, if a development is the subject of an application of a planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, despite the non‑compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit."
Second, Ms Tannock contends that cl 2.3 of the Codes relevantly confers discretion.
Third, she suggests that, by extension of the reasoning expressed by the Tribunal in Dumbleton & Anor and Town of Bassendean [2005] WASAT 145, there is a residual discretion to approve an application which does not comply with a provision of a town planning scheme.
Mr Tsaknis submits that cl 28(1) does not confer a discretion for either of two reasons.
First, the subclause, being a general power, cannot be used to vary the maximum heights prescribed by cl 42(1)(a), namely 6.5 metres overall height and 3.6 metres wall height, because the Scheme confers a special power to vary these heights with limitations in cl 42(1)(b). In support of this submission, Mr Tsaknis relies on the following statement of principle in the judgment of Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678:
"It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power."
Second, the opening words of cl 28(1), namely "except for development in respect of which the [Codes] apply", expressly exclude the application of the discretion to the circumstances of this case.
The principle of interpretation stated by Mason J in Leon Fink v Australian Film Commission has the consequence contended by Mr Tsaknis. The maximum building heights prescribed by the Scheme in relation to land zoned "Residential" and coded "R15" or "R20" are the heights stated in cl 42(1)(a), not in cl 42(1)(b). The heights referred to in the latter subclause form part of the limitations and qualifications to the special power to vary the building heights prescribed by the former. The maximum possible building heights on land zoned "Residential" and coded "R15" or "R20" under the Scheme, therefore, are 9.0 metres overall height and 6.0 metres wall height.
However, on their proper interpretation, the opening words of cl 28(1) would otherwise not exclude the application of the discretion. The proposed development is not one "in respect of which the [Codes] apply" in relation to the Scheme standard or requirement sought to be varied. Moreover, the apparent purpose of the opening words is to preclude variation under the Scheme of standards or requirements of the Codes. Absent the introductory word, it would be arguable that, because cl 39(3) of TPS 4 requires conformity with the Codes, a standard or requirement of the Codes is one which is "prescribed under the Scheme" within the meaning of cl 28(1). The apparent purpose or object of the subclause as a whole is to provide flexibility in the application of standards or requirements prescribed under the Scheme. That purpose or object would not be promoted if a Scheme provision regulating residential development could not be varied. Consequently, if the Scheme prescribes a standard or requirement as a variation to the Codes, but does not contain a special power subject to limitations to permit flexibility in relation to it, cl 28(1) would confer a discretion.
The Tribunal rejects the other arguments in relation to discretion put forward on behalf of Crystal Lakes. In Hodge & Collard Pty Ltd and City of South Perth [2005] WASAT 295, the President, having referred to the Tribunal's consideration of the meaning of cl 2.3.4 of the Codes in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [69], observed, at [34], that "[o]n balance, it does appear that discretion is available under cl 2.3.4". However, if such discretion is available in relation to requirements in the Codes, it could not be applied to vary a provision of a town planning scheme, even where the scheme provision is a variation of a Codes provision.
Finally, Ms Tannock's reference to Dumbleton and Town of Bassendean is misplaced. In that decision, the Tribunal endorsed the approach and principle which was stated in Tangelo Design Consultants and Town of Vincent [2005] WASAT 67 at [42] as follows:
"In most planning assessments, the fact that a development conforms to a relevant provision of the [Codes] is likely to be significant in relation to a related required matter for consideration under a town planning scheme, although it cannot be in itself determinative of such a consideration." (See also Robert Baccala and City of Fremantle (2005) 39 SR (WA) 21; [2005] WASAT 55 at [24]).
The Tribunal, therefore, recognised that, depending on the terms of the applicable town planning scheme, a responsible authority may retain a residual discretion to refuse a residential development application which conforms to the Codes, although conformity to a relevant Codes provision is likely to be a significant consideration in the exercise of planning discretion. However, there is no converse provision in TPS 4 which would allow the City (or the Tribunal on review) to approve a development which exceeds 9.0 metres overall height or 6.0 metres wall height on land zoned "Residential" and coded "R15" or "R20".
What is the significance in this case of the draft amendment to the definition of "wall height"?
As noted earlier, the City has advertised a draft amendment to the definition of "wall height" which specifies natural ground level at the wall, rather than at the boundary. Relying on the socalled "Coty principle", which derives its name from the decision of the Land and Valuation Court of New South Wales in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, Ms Tannock submits that the draft amendment is a "seriously entertained planning proposal" and should be given weight in the exercise of discretion. Mr Tsaknis contends that the amendment is not a seriously entertained planning proposal and, alternatively, that little if any weight should be given to it in the circumstances of the case.
In Nicholls and Western Australian Planning Commission [2005] WASAT 40, the Tribunal considered Coty (England) Pty Ltd v Sydney City Council and the leading Western Australian authorities at [40] [44]. At [45], the Tribunal determined that, when a draft planning instrument or policy or a draft amendment to a planning instrument or policy is raised for consideration in relation to a subdivision or development application, the planning consent authority or appeal tribunal must undertake a four stage inquiry. It is unnecessary to restate the four stages in these reasons. It is sufficient to say that the Tribunal considers that the draft amendment to TPS 4, while seriously entertained, should be given minimal weight in light of its lack of certainty or imminence. In particular, it has only just come off exhibition and the City has yet to consider any submissions received. As Mr Patrick Gersch, a town planner employed by the City, stated in evidence, "it may yet be abandoned". Indeed, in light of this decision, there is some prospect that that will be the case.
Conclusion
The Tribunal has determined that cl 12(3) of TPS 4 does not have the effect that the definition of the term "Height, Wall" in cl 2.2 of the Codes applies to the words "wall height" when used in cl 42(1) of the Scheme. The Scheme is silent in relation to the method of calculating "wall height". However, in accordance with cl 78 of TPS 4, the City adopted the Height Policy for the purposes of cl 42(1) which prescribes a logical and rational method for calculating wall height. This method calculates wall height from natural ground level at the wall, rather than from natural ground level at the boundary from which the wall is set back.
Applying this method of calculation, it is common ground that the proposed development satisfies the maximum wall height capable of approval under cl 42(1)(b), namely 6.0 metres above natural ground level. The Tribunal is satisfied that approval of the application would have no undue adverse impact on adjoining residential sites or the general amenity of the locality and that each of the requirements of the policy control in the Height Policy are met. Accordingly, the proposed development warrants approval subject to the conditions agreed between the parties.
Orders
The Tribunal makes the following orders:
1.The application for review is upheld.
2.Development approval is granted for the demolition of a building at no 24 (lot 27) Union Street, Subiaco, partial rear demolition of a building at no 105 (lots 29 and 30) Heytesbury Road, Subiaco, alterations and additions including a two storey extension to the building at no 105 Heytesbury Road and the erection of a detached garage and pool at no 24 Union Street, subject to the conditions in the Annexure.
3.Exhibit 7 (model of proposed development) may be returned.
ANNEXURE
CRYSTAL LAKES PTY LTD AND CITY OF SUBIACO
SAT PROCEEDINGS NOS: DR 616 and 617 of 2005
Approved Plans
1.The development shall be carried out in accordance with the six sheets of plans drawn by Ariane Prevost entitled "GILCHRIST RESIDENCE LOT 29 & 30 (NO: 105) HEYTESBURY RD AND LOT 27 (NO: 24) UNION ST ADDITIONS AND ALTERNATIONS TO RESIDENCE" Job No 04118 dated 30 May 2005 being site plan, basement plan, ground floor plan, first floor plan, elevations and street elevations.
Demolition
2.Prior to the commencement of demolition, two copies of appropriately labelled archival records of the existing building(s) on the subject properties are to be provided to the City and are to consist of the following information:
i)A site plan prepared at a scale of 1:200 showing the location of the building/s on the lot which is/are to be demolished.
ii)The submission of photographs of all four elevations of the building/s, the interior and any special architectural features. These are to be printed on appropriate black and white film, appropriately labelled and secured in separate plastic envelopes expressly designed for this purpose.
iii)Any available historical information on the building.
3.Pending, and subsequent to, any demolition of existing improvements on the site, the site is to be kept secured and maintained to a reasonable standard.
4.As soon as practicable after completion of demolition, the cleared block is to be stabilised to reduce the likelihood of airborne dust lift off.
Alterations and additions
5.Lots 29 and 30 (no 105 Heytesbury Road, Subiaco) are to be amalgamated into one lot shown on one certificate of title prior to commencement of the development.
6.Onsite car parking for the development on lots 29 and 30 (no 105 Heytesbury Road which is required to be amalgamated) is to be provided and retained on lot 27 (no 24 Union Street, Subiaco) in accordance with the approved development plans. If lot 27 is onsold or redeveloped at some point in the future, an alternative car parking location for two vehicles is to be approved by the City on lots 29 and 30 to service the residential development on this site.
7.A notification under s 70A of the Transfer of Land Act is to be prepared and lodged with the Registrar of Titles for endorsement on the certificate of title for lots 29 and 30 (no 105 Heytesbury Road, Subiaco) prior to commencement of the development. This notification is to provide advice to interested stakeholders including potential purchasers of the requirements of condition 6 above. The notification is to be prepared by the City's solicitors with any legal or other fees being at the owner's expense.
8.The removal of and making good of the carport and driveway on lot 29 (no 105 Heytesbury Road, Subiaco) prior to the occupancy of the new additions.
9.The redundant crossover located to Heytesbury Road and bituminised verge to Union Street are to be removed and the verge and the kerbing are to be reinstated at the owner's expense prior to the occupancy of the new additions.
10.The proposed basement and garage are to be used for nonhabitable purposes only.
11.All external fixtures such as TV and radio antennae, satellite dishes, plumbing vents and pipes, solar panels, air conditioners and hot water systems are to be located in accordance with the Residential Design Codes of Western Australia (2002) and the City's relevant policies.
12.The wall and roof materials of the extension are to be consistent with those of the existing dwelling, details of which are to be submitted prior to commencement of the development.
13.All fencing is required to conform to the requirements of the City's Perimeter Fencing Policy. In this regard the following is required to be achieved:
The front fence (including side fencing forward of the building line to Heytesbury Road) is not to exceed 1.8 metres in height from natural ground level and is to be visually permeable above 0.9 metre in height from natural ground level; and
Fencing to the secondary street behind the building line of the existing house facing Heytesbury Road is not to exceed 1.8 metres in height from natural ground level of the adjacent footpath and is to be modified to reduce the bulk, scale and materials of the unbroken fence along the length of the two existing lots. Details are to be submitted for approval prior to the occupancy of the new additions.
14.Brickwork and finishes on or adjacent to boundaries, including exposed parapet walls, are to be finished externally to the same standard as the rest of the development, details of which are to be submitted prior to commencement of the development.
15.All service meters and related infrastructure are not to be placed on the street side of a fence abutting the street.
16.All stormwater generated on site is to be retained on site. No stormwater will be permitted to enter the City's stormwater drainage system unless otherwise approved.
17.All infrastructure in the road reserve adjacent to and bounding the development site is to be protected from damage for the duration of the construction of the development, and at the conclusion of construction, reinstated to the condition that existed prior to the construction of the development commencing. The manner in which the infrastructure is to be protected and reinstated is to be to the satisfaction of the Director Technical Services.
18.The car parking area is to be provided with a manoeuvring depth of at least 6.0 metres.
19.Where the finished floor level of the garage is lower than the boundary levels at the point of access, drainage must be provided at the garage entrance to prevent stormwater entering the garage.
20.Existing ground levels at all proposed vehicle and pedestrian access points are to remain unaltered. No change in footpath, verge or rightofway levels will be permitted.
21.Existing ground levels at lot boundaries are to remain unaltered or, alternatively, any fill or excavation required as a result of any alteration of these levels is to be retained. Details of any proposed retaining walls are required to be submitted for approval prior to commencement of the development. Development approval may also be required for any proposed retaining walls greater than 0.5 metre in height above natural ground level.
22.All mechanical service systems including airconditioners and pool filters etc are to be designed and installed to prevent emitted noise levels from exceeding the relevant decibel levels as set out in the Environmental Protection (Noise) Regulations 1997 (as amended).
23.The handling and removal of any asbestos material must be carried out in accordance with the Health (Asbestos) Regulations 1992. Safe work procedures are required to be adhered to and all material must be disposed of at an approved landfill facility.
24.All swimming pool wastewater, including backwash, is to be contained on site.
25.The verge/footpath/rightofway is to be kept free from obstruction during construction of the development. No building materials, bins or equipment etc are to be stored on the verge/footpath/rightofway.
26.The applicant is to ensure that the verge trees are protected during the demolition/ construction/undertaking of the development. Any damage to or unauthorised removal of the verge trees will require rectification at the owner's expense. Prior to commencement of the development, the applicant should liase with the City's Parks Services to determine appropriate protection measures for the verge trees.
27.In relation to the parking of vehicles associated with the construction of the development, parking time restrictions apply to onstreet parking. Consideration should be given to making an application for short term reserved parking to the City's field services.
28.Vehicles associated with the undertaking of the development are not to be parked in the rightofway.
I certify that this and the preceding [64] 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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