| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : STRATA TITLES ACT 1985 (WA) CITATION : DALCORP HOLDINGS PTY LTD and TOWN OF VICTORIA PARK [2013] WASAT 138 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 17 JANUARY 2013 DELIVERED : 1 MAY 2013 PUBLISHED : 29 AUGUST 2013 FILE NO/S : DR 97 of 2012 and DR 98 of 2012 BETWEEN : DALCORP HOLDINGS PTY LTD Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords: Town planning - Strata titles Subdivision - Certificate of approval for bringing of land under Strata Titles Act 1985 (WA) Conditions imposed by local authority on strata subdivision Local authority acting as delegate of Western Australian Planning Commission - 'Preliminary' approval given - Certificate issued in usual administrative form - Delegate imposing condition requiring ceding to Crown of narrow strip of land free of charge to enhance right of way - Narrow right of way the sole vehicular access to strata development - Certificate applied for after construction or modification of strata building - Act requiring application to be made prior to construction being
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completed unless 'otherwise agreed' - Tribunal holding delegate had in the circumstances 'otherwise agreed' and application was valid - Conditions could only be imposed where application made prior to construction or modification of strata building - Tribunal holding that Commission did not lose the power to impose conditions where application had been otherwise agreed - Tribunal holding that condition reflected long standing practice and subdivision standards in the State - Tribunal holding condition reasonably and fairly related to the strata subdivision Legislation: Strata Titles Act 1985 (WA), s 25, s 25(3), s 25(4), s 27(3)(b) Result: Issues of validity of condition on certificate of approval determined
Summary of Tribunal's decision: The Town of Victoria Park, as delegate of the Western Australian Planning Commission, issued an instrument of preliminary approval for the bringing of a strata subdivision plan under the provisions of the Strata Titles Act 1985 (WA). The Town had issued the certificate in the usual administrative form recognised by the Commission and other agencies. The certificate had been applied for after the strata buildings had been constructed.
One of the conditions attaching to this approval required the applicant company to give up, free of charge, to the Crown (or State) a small strip of land attaching to a right of way. This narrow right of way was the sole vehicular access to the strata development.
At the development approvals stage, the Tribunal (in earlier separate proceedings) had declined to impose a similar condition but had held that the widening of the right of way would serve a valid planning purpose. The Tribunal therefore imposed a condition in effect preventing development in the small strip of land.
The statutory provision for the granting of a certificate of approval required the application for the certificate to be made prior to the construction or modification of any strata buildings, unless the Commission or its delegate 'otherwise agreed'.
The Tribunal held that in all of the circumstances of the case the delegate must be taken to have agreed to the application for a certificate to be made after (and not prior to) the construction or modification of any strata buildings.
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Here, the Town had been a party to the development approval, had issued a building licence and had been supplied with, as part of the application for a certificate, strata plans showing the relevant buildings.
The power to impose conditions attaching to the certificate of approval was also linked to an application made prior to construction or modification of any strata buildings. However, the Tribunal found that the Commission did not lose the power to impose conditions where it had otherwise agreed to the application being made after modification or construction. The Tribunal held that the condition had been lawfully imposed under the Strata Titles Act 1985 (WA).
The Tribunal went on to hold that the condition also reflected long standing practice and subdivision standards in the State, and reasonably and fairly related to both the development as constructed and relevantly to the associated strata subdivision. The Tribunal held that the condition was a valid planning condition.
Category: B
Representation: Counsel:
Applicant : Mr P McQueen
Respondent : Mr D McLeod
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
CHS Pty Ltd and City of Cockburn [2012] WASAT 4
Dalcorp Holdings Pty Ltd and Town of Victoria Park [2011] WASAT 18
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Tillbrook and Western Australian Planning Commission [2011] WASAT 130
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 These two reviews raise the validity of a condition requiring the ceding of land to the Crown (State) without compensation, being a condition imposed by the Western Australian Planning Commission (Commission) by way of its delegate, the Town of Victoria Park (Town). 2 The condition was attached to the grant of a certificate of approval under s 25 of the Strata Titles Act 1985 (WA) (ST Act). That provision provides for the Commission to give its 'certificate of approval' in respect of every strata plan lodged under the provisions of the ST Act. 3 Two important issues are presented. 4 First, can such a condition be imposed after the construction or modification of strata buildings (as occurred here), when the language of s 25(3) and s 25(4) of the ST Act suggests otherwise? Secondly, if so, is the condition in its present form valid? 5 The answers to these questions (and the reasons therefor) were delivered orally. What follows has been taken from the transcript of those reasons and has been formally revised and edited for publication.
The relevant legislation 6 So far as is relevant, s 25 of the ST Act provides as follows: Certificate of Commission (1) Subject to this section, every strata plan and every plan of resubdivision or consolidation for a strata scheme lodged for registration under this Act shall be accompanied by a certificate of approval given by the Commission unless the proposed subdivision, resubdivision or consolidation is exempt from the requirement of such a certificate by reason of regulations made under this section. … (3) An application for a certificate under this section shall be made to the Commission in the prescribed form and manner and, where a building is to be constructed or modified for the purposes of the strata scheme or a proposed strata scheme, the application shall be made prior to the construction or modification of the building unless the Commission otherwise agrees in a particular case. (Page 5)
(4) A certificate granted by the Commission under this section shall certify the approval of the Commission to the subdivision, resubdivision or consolidation, as the case may be, and shall be in the prescribed form and in the case of an application made prior to construction or modification of a building proposed to be divided into lots under the scheme, the Commission may grant a certificate unconditionally or subject to such conditions as are specified in the certificate. 7 Thus, it will be noticed that s 25(3) of the ST Act requires the application for a certificate of approval to be 'made prior to the construction or modification of the [strata] building' (emphasis added) 'unless the Commission' (here, its delegate) 'otherwise agrees in a particular case'. Relatedly, s 25(4) of the ST Act expressly permits the imposition of conditions 'in the case of an application made prior to construction or modification of a [strata] building …'. It is common ground that here the applicant applied for such a certificate after the construction or modification of a strata building. 8 On 21 March 2012, the delegate of the Commission issued an instrument entitled 'preliminary approval of strata plan' (emphasis added) with the following condition attached: 9 I pause to note that if a 1.5 metre wide strip were to be uniformly added to the whole of the existing right of way, something that may be perhaps difficult to achieve from a practical point of view, the right of way would be 4.5 metres in width. However, that matter is not before the Tribunal, and we need not dwell on it. 10 The practice of the State that led to the issue of the preliminary approval in the form there used ('the Commission is prepared to endorse its approval on an appropriate [prescribed] form …') is explained in an exchange of emails from May 2012 between a senior officer of the Commission and Mr Robert Cruikshank, a senior officer of the Town. The practice is apparently very longstanding, and is done for administrative convenience having regard to the practice of the Registrar General and the nature of the formal instrument eventually lodged with the Land Titles Office. (Page 6)
11 It is unnecessary to go into that practice further, as the parties accept, as I understand it, that the Tribunal is solely reviewing 'the attachment of a condition under s 25(4) [of the ST Act] to the approval of the Commission' within the meaning of s 27(3)(b) of the ST Act. That provision prescribes the review jurisdiction of this Tribunal. 12 In other words, the certificate of approval issued by the delegate, apart from the validity of disputed condition 2, is agreed to be otherwise valid and effective or will become valid and effective.
The background to the present case 13 The Town, in another capacity, had issued on 4 February 2011 a building licence for the relevant buildings. This followed planning approval given by Member Jordan in this Tribunal on 31 January 2011: see Dalcorp Holdings Pty Ltd and Town of Victoria Park [2011] WASAT 18 (Dalcorp). The relevant buildings were, as I have mentioned, built before an application was made for a certificate of approval. The buildings were completed probably by late 2011. 14 The background to the present review, the setting of the subject land and some of the relevant planning principles and instruments are set out in Dalcorp. I gratefully adopt such matters as are relevant from Dalcorp for the purposes of this review. Where necessary, these reasons should be read consistently with Member Jordan's earlier reasons in Dalcorp. 15 Importantly, Dalcorp imposed, by way of a condition (replacement condition 2), a setback against development within 1.5 metres from the boundary of the right of way. This is the same land referred to in the disputed condition 2 under review here. The effect of this planning condition was to leave open the possibility of the widening of the right of way at some future point, presumably by acquisition or otherwise. It is common ground that no material development or use of the land has in fact taken place in the 1.5 metre setback of boundary land. 16 However, Member Jordan declined to impose a further condition (similar to the disputed condition 2 in this review). Originally, condition 2 in Dalcorp was in the following terms, at [22]: Provision being made for the ceding to the Crown of a 1.5 metre wide strip of land adjacent to the boundary with the right of way, for the length of the common boundary with the right of way, as shown in red on the approved site plan. Such ceding to be undertaken in conjunction with any future subdivision of the lot. (Page 7)
17 I will return to Member Jordan's reasons for not imposing such a condition in a moment. I turn now to the application of s 25(3) and s 25(4) of the ST Act.
'Otherwise agreed' 18 In my view, it is plain that in the circumstances here where application for a certificate of approval was made after the construction or modification of the relevant strata buildings, the Commission by its delegate (who had full knowledge of every relevant circumstance) has, or had, under the express proviso found in s 25(3) of the ST Act 'otherwise agree[d] in [the] particular case' to the receipt and determination of such an application. 19 These 'circumstances' were that the applicant expressly sought a s 25(3) certificate on the prescribed form (Form 24), which is the application for a certificate of approval, and the lodging of that form in January 2012 with associated documents including a proper plan showing a reference to buildings and to a strata plan (62941), and to strata boundaries and to common property. A conditional preliminary approval, as I have mentioned, was issued as a consequence of that application. 20 The combined effect of these events and instruments, in my view, is that the delegate had 'otherwise agreed' or must be taken to have 'otherwise agreed' to an application after, and not prior to, the construction or modification of relevant buildings.
Consequential power to impose conditions 21 The next issue is whether the power to impose conditions under s 25(4) of the ST Act is forfeited because the application was not 'made prior to construction' within the meaning of s 25(4) of the ST Act. The reference to 'made prior' is, prima facie, a reference back to s 25(3) of the ST Act where the same words appear. 22 However, these words must be read, of course, in the light of the Commission's power to 'otherwise agree'. It would be a curious result indeed if the Commission lost the power to impose conditions in respect of a s 25(3) application merely by permitting an applicant to apply consensually after construction or modification of any strata building. No doubt the general aim of the provision was to regulate matters, and with some degree of certainty, before the construction of buildings, but as the proviso ('otherwise agreed') suggests and the facts of this case demonstrate, this need not always be the case. (Page 8)
23 I accept that there may be some limitations, both legal and practical, on the scope of any conditions that may be imposed in such circumstances. It is unnecessary to speculate further on what they might be in any given case. All that it is necessary to observe is that such limitations, if any, do not apply here, as no construction or modification has or can take place with respect to the subject land's 1.5 metre widening strip. 24 In my view, at least in a case like the present, the Commission does not lose its important power of imposing conditions by otherwise agreeing to the application for a certificate made after, and not prior to, construction or modification of relevant buildings. 25 CHS Pty Ltd and City of Cockburn [2012] WASAT 4 (CHS) appears to suggest, at [32] and [33], that no condition may be imposed under s 25(4) of the ST Act after construction has taken place. That case dealt with a significant community infrastructure levy imposed after construction. The circumstances of that case are very different from the circumstances of this case. To the extent, if any, that CHS suggests that the Commission cannot 'otherwise agree' - a matter not actually discussed in CHS - and then cannot impose suitable conditions, the decision, with respect, should not be followed. 26 It may be, however, that CHS points rather to the type or extent of specific conditions that either cannot or ought not be imposed after the Commission otherwise agrees to an application made after, and not prior to, construction. In any case, CHS does not control the outcome of this review.
Validity of the condition 27 I turn to the final issue in dispute. If the Commission does have the power to impose condition 2, can that condition, as presently drafted, be sustained in the case at hand? I think that it can. The test for the validity of such conditions may be found in the leading judgment of McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30. 28 There, his Honour said, at [57], citing Newbury District Council v Secretary of State for the Environment [1981] AC 578 that a condition attached to a granted planning permission (or, for that matter, a condition imposed in respect of a subdivision) will not be valid unless: (Page 9)
29 The test was applied by, for example, Chaney J (sitting as the President of this Tribunal) in Tillbrook and Western Australian Planning Commission [2011] WASAT 130, at [17]. Here, in Dalcorp, Member Jordan dealt with similar issues: see Dalcorp, at [26]. 30 With respect, Member Jordan correctly identified that the relevant planning instruments cited to him disclosed that 'widening the right of way would serve a valid planning purpose': Dalcorp at [26]. Member Jordan appears to have found against the respondent Town on the second issue, the nexus question, as the Town appeared to focus on the policy aim in itself of widening rights of way, rather than relating the matter back sufficiently to the subject development. 31 However, Member Jordan did anticipate a revisiting of the issue of the ceding of the land at the subdivision stage: see Dalcorp, at [47]. Indeed, as I read his remarks, Member Jordan contemplated that that was likely to occur, reflecting no doubt the wellestablished practice in this State. 32 Here, importantly, the only vehicular access to the development is via the right of way. The detailed planning justifications for having rights of way of an appropriate width for such access, preferably 6 metres in width, are discussed in, for example, the Western Australian Planning Commission Planning Bulletin No 33 July 1999 ('Rights-of-Way or Laneways in Established Areas - Guidelines'), cited by Member Jordan, at [29] - [30] in Dalcorp. 33 Such requirements are also broadly reflected in the Commission's Model Subdivision Conditions Schedule (October 2012). Compare, for example, model condition T14 (condition imposing a 'right of way' ceded to the Crown). Generally speaking, such conditions which mandate proper standards of access as an aspect of orderly and proper planning (Page 10)
have been imposed by the Commission on relevant subdivisions in this State - and then for a considerable period of time. 34 In my view, the condition reasonably and fairly relates to both the development as constructed, and relevantly to the associated strata subdivision. Therefore, I would uphold the validity of the condition.
Conclusions 35 In summary, the two issues presented for resolution should be answered as follows. 36 I will hear counsel on the form of the orders needed to reflect today's developments.
Orders 37 The Tribunal makes the following orders: 1.The Tribunal having delivered oral reasons, the proceeding is adjourned to a further directions hearing at 11.15 am on 17 May 2013. |