Drake and City of South Perth and Anor
[2005] WASAT 128
•8 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND
DEVELOPMENT ACT 1928
CITATION: DRAKE and CITY OF SOUTH PERTH & ANOR [2005] WASAT 128
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 27 APRIL 2005
DELIVERED : 8 JUNE 2005
FILE NO/S: RD 327 of 2004
BETWEEN: BARRIE M DRAKE
Applicant
AND
CITY OF SOUTH PERTH
First respondentBENITTA PANIZZA
Second respondent
Catchwords:
Ministerial referral of representations under Town Planning and Development Act 1928 (WA) s 18(2a) to Tribunal for report and recommendations - Application for summary determination - Whether applicant's representations to the Minister were outside the scope of s 18(2) - Whether representations concerned "failure of a local government to enforce effectively the observance of a town planning scheme" - Whether representations concerned alleged invalidity of development approval - Whether representations implicitly concerned alleged breach of conditions of approval - Proper approach to construction of representations - Whether the Minister could refer a part only of the representations to the Tribunal
Legislation:
Interpretation Act 1984 (WA), s 18
State Administrative Tribunal Act 2004 (WA), s 7, s 37(3), s 167
Town Planning and Development Act 1928 (WA),
s 18(2), 18(2a), s 18(2b), s 18(2c)
Result:
The part of the representations made by the applicant to the Minister which allege that the building exceeds a plot ratio of 0.66 is to proceed to hearing for the purposes of report and recommendations to the Minister.
At the conclusion of these proceedings, in addition to its report and recommendations in relation to the part of the representations referred to in the previous paragraph, the Tribunal will report to the Minister that the representations otherwise fell outside the scope or ambit of s 18(2) of the Town Planning and Development Act 1928 (WA).
Category: B
Representation:
Counsel:
Applicant: Mr P N Burke
First respondent : Mr C A Slarke
Second respondent : Mr C Touyz
Solicitors:
Applicant: Hardy Bowen
First respondent : McLeods
Second respondent : Hammond King Touyz
Case(s) referred to in decision(s):
Lakes Action Group Association Incorporated and Shire of Northam [2004] WATPAT 195
Lakes Action Group Association Incorporated and Shire of Northam [2005] WASAT 8
Sara Commisso and City of Gosnells [2005] WASAT 61
Case(s) also cited:
Nil
MR DR PARRY (SENIOR MEMBER):
REASONS FOR DECISION
Introduction
This is an application by the City of South Perth ("the first respondent") that these proceedings be, in effect, summarily determined and dismissed ("the application"). The particular order sought by the first respondent is that the Tribunal report to the Minister for Planning and Infrastructure ("the Minister"), in accordance with s 18(2a) of the Town Planning and Development Act 1928 (WA) ("the TPD Act"), that the representations made to her by Mr Barrie Drake ("the applicant") on 3 May 2004 and 13 September 2004, purportedly under s 18(2) of the TPD Act, did not fall within the ambit or scope of that section.
When the application was first listed for hearing, the respondent was directed to notify the Minister of the application and of the hearing date. The Minister originally advised the Tribunal that the State Solicitor would appear on her behalf and seek leave to make submissions under s 62 of the TPD Act. However, the Minister subsequently indicated that, having obtained advice, she did not intend to make submissions in relation to the application.
As the applicant only received the Minister's advice that she did not intend to make submissions shortly before the originally scheduled hearing date, that hearing date was vacated to enable the applicant to obtain legal advice and representation. He retained solicitors to act on his behalf shortly before the second scheduled hearing date.
On 27 April 2005, the Tribunal heard oral submissions in relation to the application on behalf of the applicant and the first respondent. The first respondent was subsequently directed to give notice of the proceedings and of the application to each registered proprietor of the affected land, and to provide to each such person the evidence tendered on 27 April 2005, the transcript of oral submissions made on that day, and the written submissions of the applicant and of the first respondent. At a further directions hearing, the Tribunal granted leave, under s 37(3) of the State Administrative Tribunal Act 2004 (WA) ("Tribunal Act"), to Ms Benitta Panizza, the registered proprietor of the affected land, to intervene in the proceedings as second respondent. Mr Touyz, the second respondent's solicitor, advised the Tribunal that his client endorsed the first respondent's submissions in relation to the application, but did not wish to call any evidence or make any other submission in relation to it.
Factual background
On 4 January 2001, the first respondent granted development approval for the erection of a 3 - 4 level apartment building comprising two residential units and common facilities at 11 Heppingstone Street, South Perth ("the site"), subject to 21 conditions ("the development approval"). The development approval was granted by the first respondent under both the City of South Perth Town Planning Scheme No 5 ("TPS 5") and the Metropolitan Region Scheme ("MRS"). The conditions of approval included the following:
"(7)The building shall be modified to comply with the 0.66 maximum plot ratio described by Table 1 of the Residential Planning Codes for the type of development concerned. …
(14)The finished floor level shall be no higher than 9.4m relative to the datum shown on the site plan; …
(21)The dwellings shall not be occupied until an inspection has been carried out by a Council officer and the Manager, City Planning, is satisfied the development has been completed in accordance with the approved drawings and conditions of Planning Consent."
On 26 February 2002, the respondent granted a conditional building licence for the erection of the building the subject of the development approval. It appears that the building was subsequently constructed.
On 3 May 2004, the applicant wrote to the Minister as follows:
"Dear Minister,
Re: Apartment Building at 11 Heppingstone Street, South Perth.
Corner of Lamb Street
I wish to lodge a complaint against the City of South Perth for allowing the construction of the above building on the grounds that:-
1.It exceeds the allowable height;
2.It exceeds the allowable plot ratio
3.It is too close to the adjoining properties and roads.
To support my claims and this representation to you under Section 18(2) of the Town Planning and Development Act 1928 (as amended) for there to be a full enquiry and investigation into this building and the Planning Services Department of the City of South Perth.
I have enclosed a report by Mr Ken Adam which is self-explanatory together with a number of photographs of the building.
The building is not in accordance with the relevant Town Planning Scheme and Codes.
Please make the necessary arrangements to cause this building to be made to comply with the relevant Town Planning Codes and Schemes.
If you require documentation to further prove this building is illegal I would be happy to provide that to you.
Yours faithfully
B M Drake" (Reproduced as written.)
The report by Mr Ken Adam, which the applicant enclosed with his letter of 3 May 2004 to the Minister, was entitled "Apartment Building at 11 Heppingstone Street, South Perth Report on Compliance with Town Planning Scheme No. 5, including the Residential Planning Codes" and was dated October2003 ("the Adam Report"). At par [2] of the report, Mr Adam stated that its purpose was "to examine the planning appeal [sic] granted to the development of two multiple dwellings on Lot 38 (No 11) Heppingstone Street South Perth". At par [3], Mr Adam stated that the report "focused particularly on the issues of compliance with then current town planning scheme requirements concerning plot ratio and building heights". Having briefly identified his extensive experience as a town planner at par [4] - par [7], and having identified the documents to which he had regard at par [8] - par [10] (which included the respondent's minutes which contained the resolution to approve the development application, subject to conditions), Mr Adam considered the questions of "plot ratio" and "building height" in detail at par [11] - par [31] and par [32] - par [42] of the report, respectively.
At par [26] of the report, Mr Adam said that, in his professional assessment, "the actual plot ratio of the building as depicted in [the] drawings is 0.86". He concluded his discussions of plot ratio in the following three paragraphs:
"29.I conclude that the plot ratio of the building exceeds the maximum allowed by TPS 5 and the RCodes by more than 30 per cent. As far as I am aware, the Council had no discretion to grant approval to an application that exceeded the allowable plot ratio. The validity of the approval must therefore be questioned.
30.Even if the Council had had power to approve an increase in plot ratio it is my opinion that such a variation would not have been a reasonable one to permit, because of the manifestly excessive bulk of the building in relation to others in the locality and the degree of variation required. In my opinion the Council's decision was contrary to orderly and proper planning and the amenity of the locality.
31.Further, I note that the Council's approval was subject to a standard condition requiring the building to be modified to comply with the maximum plot ratio described by Table 1 of the Residential Planning Codes for the type of development concerned. Table 1 prescribes a maximum plot ratio at Column 4 for a Multiple dwelling under the R60 code of 0.55. Table 1 makes no reference to the bonus plot ratio provisions of Clause 4.7.6 of the RCodes. The wording of the condition would seem to preclude the building being developed with a plot ratio greater than 0.55. No doubt this was an oversight on the part of the Council, but as such does not inspire confidence in the thoroughness with which the application was assessed." (Reproduced as written.)
At par [32] of the report, Mr Adam stated that, under cl 61(3)(c) of TPS 5, "the maximum building height permitted on the site was 10.5 metres". At par [33], Mr Adam stated that:
"Building height was required to be measured as set out in the definition at Clause 11. In essence, this requires measuring the vertical distance 'from the highest point of natural ground level under the building to the highest point of the external wall which extends to the highest altitude'."
Mr Adam then identified a number of breaches of this height control, the greatest by some 3.36m. He concluded his discussion of "building height" in the following three paragraphs:
"40.It is clear that the building's height exceeds the limits provided by TPS 5.
41.I note that by Clause 87(2) of TPS 5 the Council had no discretion to vary any of the height limits prescribed by the Scheme. Accordingly, the validity of the Council's approval must be questioned. This is, of course, a matter for legal submissions.
42.However, from a planning perspective it is my opinion that the Council's decision to approve the excessive height of the building was significantly contrary to orderly and proper planning and the amenities of the locality."
At par [45] of the report, Mr Adam expressed the following conclusion:
"I conclude that the building, as depicted in the drawings provided to me, does not comply with the nondiscretionary provisions of the then Town Planning Scheme No 5 and the Residential Planning Codes relating to both plot ratio and building height."
On 13 September 2004, the applicant wrote to the Minister as follows:
"Dear Minister
APARTMENT BUILDING, 11 HEPPINGSTONE STREET SOUTH PERTH
I refer to the very helpful letter from your Chief of Staff, Rob Giles, dated 19 August 2004. Perusal of his letter confirms the strength and validity of my complaint.
This will confirm my request to you, made in my letter of 3 May 2004, to take the appropriate action under S18(2) of the Town Planning and Development Act to have my complaint referred to the Town Planning Appeal Tribunal.
My interests have been affected above and beyond those of any ordinary member of the public, in the following ways:
(1)As the owner of No. 2 Scenic Crescent, which shares a common corner with 11 Heppingstone Street, I have suffered:
•a loss of view which would not have occurred had the building been built within the height limits presented by the scheme;
•excessive overshadowing, from the same cause;
•loss of privacy in my back garden as a result of overlooking from windows and balconies, which would not have occurred had the provisions of the Scheme been enforced;
•a loss of amenity as a result of visual intrusion stemming from the excessive bulk of the building, a function of significantly exceeding the plot ratio allowable (and nondiscretionary) under the scheme;
•loss of amenity due to the design of the exterior of the building which is out of keeping with the locality, contrary to the Scheme; and
•a consequential loss of monetary value of my property.
(2)As the owners and registered proprietors of the property and short-term accommodation business (Drakes Apartments with Cars) situated at 5 7 Scenic Crescent, close to 11 Heppingstone Street, Karen Ward and I have suffered:
•loss of previous uninterrupted views of the City and the Swan River enjoyed by the occupants of the top two apartments in the building of 5 7 Scenic Crescent; views which would not have been lost had the height and floor space limits of the Scheme been enforced; loss of these desirable views affect the desirability of the apartments concerned and hence our business; and
•loss of amenity for occupants of our apartments as a consequence of the excessive visual and inharmonious appearance of the building at 11 Heppingstone Street.
I have previously provided you with a copy of a report prepared by Mr Ken Adam, who is a highly experienced expert on the Rcodes and statutory planning, which demonstrates conclusively that the building does not comply with nondiscretionary provisions of the Scheme.
I have also provided you with photographs supporting my claims about loss of views, building bulk and unsightly appearance of the building.
I also have a video showing the views from our apartment both before and after the building was constructed, which is available for you to view, at your convenience.
Further to the above I enclose copies of correspondence with the City of South Perth, showing that I have attempted to have the matter dealt with by the Council and that no serious attempt has been made by the City to investigate my complaint, let alone attempt to properly enforce the provisions of the Scheme.
I appeal to you to take the appropriate and proper course, and refer this matter to the Town Planning Appeal Tribunal, so that a full and open examination of the validity of my complaint can be made.
Yours sincerely
Barrie M Drake" (Reproduced as written.)
On 22 December 2004, the Minister wrote to the applicant in response to his letter of 13 September 2004. The final paragraph of this letter, which was relevant to one of the first respondent's submissions, was as follows:
"However, at your request I have referred your enquiry to the Town Planning Appeal Tribunal for investigation to determine if there has been a technical breach of the building height provision."
On 22 December 2004, the Minister wrote to the President of the Town Planning Appeal Tribunal as follows:
"Dear Mr McGowan
SECTION 18(2) REPRESENTATION CITY OF SOUTH PERTH
Mr Barry [sic] Drake has made a representation under Section 18(2) of the Town Planning and Development Act, regarding the decision by the City of South Perth to approve an apartment building at 11 Heppingstone Street, South Perth.
In accordance with Section 18(2a) of the Town Planning and Development Act, Mr Barry [sic] Drake's representation is hereby referred to the Tribunal for a report and recommendation."
It was common ground that the applicant's "representations" to the Minister were encompassed in his letters dated 3 May 2004 and 13 September 2004 and in the Adam Report.
The Tribunal Act commenced on 1 January 2005 and, by s 7, established the State Administrative Tribunal. On that day, Div 126 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) also commenced, and repealed and amended certain provisions of the TPD Act. In consequence of these provisions, the Town Planning Appeal Tribunal ceased to exist. In accordance with s 167(4)(a) of the Tribunal Act, on 1 January 2005, these proceedings were transferred to, and are to take place before, this Tribunal.
Section 18 of the Town Planning and Development Act
The relevant parts of s 18 of the TPD Act provide as follows:
"(2)A person may make representations to the Minister if the person is aggrieved by the failure of a local government to ‑
(a)enforce effectively the observance of a town planning scheme in force under this Act, or any of the provisions of the scheme; or
(b)execute any works, which under the scheme or this Act, the local government is required to execute.
(2a)The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.
(2b)For the purpose of making a report and recommendations on a referral under subsection (2a), Pt V applies, with such modifications as may be necessary, as if the referral were an application for review.
(2c)If after holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister is satisfied that the local government has failed -
(a)to enforce effectively the observance of a scheme or a provision of a scheme; or
(b)to execute any works which the local government is required under a scheme or this Act to execute,
the Minister may order the local government to do all things necessary to enforce the observance of the scheme or provision or to execute the works."
These provisions were in substantially the same terms when the applicant made his representations to the Minister and the Minister referred the representations to the Town Planning Appeal Tribunal.
Consideration of the application
In its written submissions, the first respondent advanced two alternative arguments. First, it contended that the sole question which had been referred by the Minister to the Tribunal was that identified in the final paragraph of the Minister's letter to the applicant dated 22 December 2004, namely whether "there ha[d] been a technical breach of the building height provisions" of TPS 5, and that this "in effect ask[ed] the Tribunal to provide an advisory opinion, outside the scope of section 18(2)" of the TPD Act.
At the time when this submission was formulated, the first respondent was not aware of the fact or terms of the referral letter from the Minister to the President of the Town Planning Appeal Tribunal dated 22 December 2004. The terms of that letter make it clear that the Minister referred the whole of the representations which she had received from the applicant to the Town Planning Appeal Tribunal for report and recommendations. Moreover, in my opinion, in her letter to the applicant of 22 December 2004, the Minister simply identified one of the fundamental elements of the applicant's representations to her, namely that the building was in breach of the height limits prescribed by TPS 5.
Had the Minister sought to refer only part of representations made to her under s 18(2) of the TPD Act to the Tribunal, such referral would not have been in accordance with the power conferred on her by s 18(2a) of the TPD Act. In Sara Commisso and City of Gosnells [2005] WASAT 61, the Tribunal held at [25] as follows:
"On its proper construction, the term 'the representations' when used on two occasions in s 18(2a) of the TPD Act is a reference to the 'representations to the Minister' in s 18(2). Under the legislation, the "representations" to the Minister constitute the genesis of the process and also establish the scope of the potential referral to the Tribunal under s 18(2a) and of the Tribunal's report and recommendations following such a referral."
In Sara Commisso and City of Gosnells (supra), the Tribunal determined that, in the course of a referral of representations under s 18(2a) of the TPD Act to the Town Planning Appeal Tribunal, the Minister had purported to expand upon the scope of the representations. In consequence, part of the proceedings was struck out. However, the corollary of the point in Sara Commisso and City of Gosnells is that, if the Minister has determined to refer "the representations" to the Tribunal, she cannot limit the scope of the representations and thus of the Tribunal's inquiry. In particular, if the representations which were made to the Minister comprised a number of elements, the Minister could not, under the terms of s 18(2a), choose to refer some, but not all, of the elements of the representations to the Tribunal for report and recommendations. However, the Minister could indicate to the Tribunal that she did not intend to take any action in response to an element or elements of the representations or that she did not consider that an element or elements of the representations were substantiated.
The first respondent's second and alternative submission was that, even if the Minister did refer the applicant's representations to the Town Planning Appeal Tribunal, the representations in essence constituted an attack on the validity of its grant of the development approval. The respondent submitted, and the applicant conceded consistently with the decision of the Tribunal in Lakes Action Group Association Incorporated and Shire of Northam [2005] WASAT 8 ("Lakes Action Group No 2"), that the Tribunal did not have jurisdiction under s 18(2a) of the TPD Act to consider whether a development approval, which an approval authority purported to grant, was invalid. In that case, the Tribunal held at [15] as follows:
"The question of whether, if what Council did was to approve, or purport to approve, the quarry under TPS 2, that approval was valid is a different question. It is not susceptible to examination in the course of these proceedings. There are several reasons for that. The first is that no representation was made to the Minister to the effect that an approval given was invalid. If it had been, then that representation would not appear to fit the description of a 'failure of a local government to enforce effectively the observance of a town planning scheme in force under' the Act. It would not, therefore, be amenable to a reference by the Minister to this Tribunal under s 18(2a) of the Act. An attack on the validity of the Council's actions could only be by way of an application for prerogative relief by way of a writ of Certiorari or for declaratory relief. Proceedings referred to under subsection 18(2a) of the Act do not empower the Tribunal to grant relief of that nature. A person who holds an approval, is entitled to rely on the validity of that approval until such time as it is quashed or declared invalid by a Court of competent jurisdiction see Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436."
Mr P N Burke, counsel for the applicant, asserted, however, that the decision in Lakes Action Group No 2 (supra) was distinguishable, because the representations which were made by the applicant to the Minister and referred to the Town Planning Appeal Tribunal in the present case were that "the development as completed complies with neither the provisions of the Respondent's applicable town planning scheme nor … conditions [7 and 14 of the development approval]" (applicant's written submissions par [11]). These conditions, which are set out in full at par [5] above, required, in essence, that the building be modified to comply with a 0.66 maximum plot ratio and that the finished floor level be no higher than 9.4m.
In his oral address, Mr Burke conceded that the "dominant representation is that the approval isn't valid" and stated that that representation could not be, and was not, pursued. However, he submitted that:
"The grievance here is clear. My client has a grievance with the height and the plot ratio of the development. The way in which he's worded his grievance and the supporting documentation, we say … supports a number of representations. …
… the letter of the 3rd of May in particular the introductory comments which make no reference to the scheme and also certain parts of the letter of the 13th in their general references allow a further representation to be implied, and that's the gist of our case. …"
Mr Burke placed considerable reliance on the following passage in the decision of McGowan P in Lakes Action Group Association Incorporated and Shire of Northam [2004] WATPAT 195 ("Lakes Action Group No 1") at [11]:
"It seems to me that the nature of the underlying proceedings, and therefore, the nature of the relief to a person otherwise aggrieved, should not be approached on a strictly legalistic or black letter law basis. If upon a reasonable construction of the underlying documentation it appears that there is compliance with the statutory provisions, then that seems an adequate basis upon which to proceed."
Mr Burke submitted that this passage emphasised that it was inappropriate to "apply to a lay person a legal standard in terms of formulating the representation". It was inappropriate to apply to the applicant "a standard … that he would attempt to comply with [s] 18(2) in the way that a lawyer would". Finally, Mr Burke submitted that "it should be borne in mind that these letters were written before all of us had the benefit of The Lakes Action Group cases".
Mr C A Slarke, counsel for the first respondent, took the Tribunal through the documents that constituted the representations. He referred, in particular, to the parts of the Adam Report which are set out at par [9] par [12] of these reasons. Mr Slarke noted that Mr Adam was an experienced town planner and that he was aware of the conditions subject to which the development approval had been granted.
Mr Slarke submitted that:
"There is nothing said explicitly or which even intimates in [the] letter [of 3 May 2004] that there has been a breach of any condition of the planning approval, and that becomes even more clear when you read that letter in the context of Mr Adam's report … .
When Mr Adam's report is read reasonably it clearly both expressly and impliedly goes to whether the approval was within the power of the Council to grant. It's got nothing to do with whether the conditions of approval have been [enforced] by the City."
Mr Slarke submitted that the Minister had correctly characterised the representation, when she said, in her letter of referral to the Town Planning Appeal Tribunal, that the representations concerned "the decision by the City of South Perth to approve" the development.
At the time of the grant of development approval, the applicable planning instrument was TPS 5. Clause 86 of TPS 5 provided as follows:
"If the Council grants planning consent for a development subject to conditions the development shall be carried out and the land shall not be used for any purpose otherwise in accordance with those conditions."
Clause 94 of TPS 5 provided, among other things, that a person shall not erect a building or use a building unless all conditions imposed upon the grant or issue of any approval required by the Scheme have been and continue to be complied with.
Clause 1.7 of the City of South Perth Town Planning Scheme No 6 ("TPS 6") revoked TPS 5 after the building in question was apparently erected. Clause 9.2(b)(iii) of TPS 6 is in similar terms to cl 94 of TPS 5.
It was, therefore, open to applicant to make representations to the Minister under s 18(2) of the TPD Act, if he was aggrieved by the failure of the respondent to enforce compliance with conditions 7 or 14 of the development approval.
I adopt the approach of McGowan P to the construction of representations made under s 18(2) of the TPD Act, which I have quoted at par [27] above. Such an approach is consistent with the evident legislative purpose of s 18(2) and s 18(2a) of the TPD Act, namely to facilitate some community or third partydriven enforcement of town planning law. As the legislation provides for representations to be made by any person who is relevantly aggrieved, it is to be expected that many, if not most, representations will be written by lay members of the community who are not familiar with the intricacies of town planning law.
Section 18 of the Interpretation Act 1984 (WA) provides 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". It is implicit in s 18(2) of the TPD Act that representations to the Minister must concern or relate to an alleged failure on the part of a council to enforce effectively a town planning scheme or a provision of a scheme, or to carry out works required by a town planning scheme. However, the Parliament did not, expressly or by implication, require that representations identify, or correctly identify, the alleged failure. Given that many, if not most, representations will be written by lay members of the community, such as the applicant, this construction promotes the legislative purpose identified in the previous paragraph. A more strict reading of the section, in terms of what is required for representations to fall within its scope, would not promote that legislative purpose. It could not have been the Parliament's intention that representations be summarily rejected by the Minister or dismissed by the Tribunal on the basis that they did not fall within the scope or ambit of the section, where they did, in fact, implicitly relate to a failure to enforce a town planning scheme, although the representor did not understand or appreciate that failure, but rather mistakenly believed that the representations had a different consequence.
I do not accept Mr Burke's submission that, on a reasonable construction of the applicant's representations, his grievance was simply with the "height and the plot ratio of the development". It is apparent from his letters, that his assertion was more specific, namely that the building as constructed exceeded the maximum height and maximum plot ratio provisions of TPS 5 and the Residential Planning Codes (1991) ("the RCodes"). Although the introductory words of the applicant's letter of 3 May 2004 were, perhaps, equivocal, these words cannot be read without the rest of the letter. In the fourth paragraph of the letter, the applicant clearly asserted that the building "is not in accordance with" TPS 5 and the RCodes. The introductory words must be read in the light of that paragraph. It is also apparent from the Adam Report, which formed part of the representations, that the applicant's assertion was that the building breached the height and plot ratio controls. According to the Adam Report, the building exceeded the maximum building height control of 10.5 metres by up to 3.36 metres and exceeded the maximum plot ratio control of 0.66 by 0.20. Similarly, the applicant's letter of 13 September 2004 asserted that there was a breach of the height and plot ratio controls of TPS 5 and the RCodes, and that these breaches caused adverse impacts.
It certainly appears that the applicant and Mr Adam believed that the consequence of the alleged noncompliance with TPS 5 and the RCodes was that the development approval was invalid, because it was granted in breach of nondiscretionary standards. In fact, in relation to the maximum plot ratio of 0.66, the development approval could not have been invalid for breach of a nondiscretionary standard, because the first respondent explicitly addressed that standard by the imposition of condition 7. More fundamentally, however, on the proper construction of s 18(2) of the TPD Act, the applicant's (mistaken) belief about the legal consequences of his representations did not result in his representations falling outside the scope or ambit of that section, insofar as they concerned an alleged breach of the maximum 0.66 plot ratio. For reasons discussed earlier, the legislation does not require that a representor identify, or correctly identify, the failure on the part of the local government, so long as the representations concern or relate to a relevant failure within the contemplation of s 18(2).
Because the respondent had required, by condition 7 of the development approval, that the building be modified to comply with the 0.66 maximum plot ratio allowed in the R-Codes, the applicant's assertion in his representations that the building was erected in breach of that maximum plot ratio, implicitly concerned or related to an alleged failure to enforce the observance of a provision of a town planning scheme, which satisfied the statutory requirement in s 18 (2) of the TPD Act. The "full enquiry and investigation into this building", which the applicant sought in his first letter to the Minister, necessarily included an assessment of whether the building, as constructed, exceeded the plot ratio prescribed by condition 7 of the development approval. To borrow McGowan P's words from Lakes Action Group No 1, "upon a reasonable construction of the underlying documentation it appears that there is compliance with the statutory provisions".
However the same conclusion cannot be drawn in relation to the applicant's assertion that the building, as erected, exceeded the maximum height control prescribed by 61(3)(c) of TPS 5. As noted earlier, that clause set a non-discretionary maximum wall height of 10.5 metres. The first respondent did not require compliance with that provision by way of condition of approval. Rather, it imposed condition 14, which required that the finished floor level of the building be no higher that 9.4 metres.
The applicant's representations did not, therefore, concern or relate, whether expressly or implicitly, to an alleged failure to enforce condition 14 of the development approval. The only assertion made by the applicant in relation to height was that the building exceeds the nondiscretionary building height provision in TPS 5. This aspect of the representations did not concern an alleged failure to enforce the observance of a town planning scheme or a provision of a scheme, and therefore fell outside the scope or ambit of s 18(2) of the TPD Act.
Finally, the fact that the representations were written prior to the publication of decisions which have clarified the scope of the legislation in question does not allow a different result. The words used by a representor must be given a fair and reasonable reading according to their terms, not according to how the representations might have been framed with hindsight.
Conclusion
The Tribunal has determined that, on 22 December 2004, the Minister referred the whole of the representations which had been made to her by the applicant on 3 May 2004 and 13 September 2004 to the Town Planning Appeal Tribunal. However, part of the applicant's representations to the Minister were not competent representations under the terms of s 18(2) of the TPD Act. In particular, the representations made by the applicant to the Minister concerning the height of the building which had been erected on the site did not relate, whether expressly or implicitly, to a "failure of [the first respondent] to enforce effectively the observance of a town planning scheme in force under" the TPD Act. Rather, this aspect of the representations related only to an alleged failure of the first respondent to properly apply TPS 5 in its determination to grant the development approval. In this respect, the applicant's representations, in effect, asked the Minister to look behind a development approval in order to determine whether it had been lawfully granted. As the Tribunal held in Lakes Action Group No 2 (supra), the legislation in question does not permit such a review by either the Minister or this Tribunal.
However, the representations did fall within the scope or ambit of the legislation, insofar as the applicant asserted to the Minister that the building, as erected, was in breach of the maximum 0.66 plot ratio which was prescribed at the date of development approval by the R-Codes. As the first respondent had required, by condition of the development approval, that the development be modified to meet that plot ratio, the assertion in the representations that the building was erected in breach of that plot ratio implicitly related to a failure on the part of the first respondent to effectively enforce the observance of TPS 5 and/or TPS 6 in relation to that condition. On the proper construction of s 18(2) of the TPD Act, it was of no consequence that the applicant did not appreciate that this was, in fact, the relevant failure by which he was aggrieved, nor that he mistakenly thought that the failure lay in the grant of an invalid development approval.
The result is that this aspect of the representations should proceed to hearing. At the conclusion of the proceedings, the Tribunal will report to the Minister that a part of the representations which were made to her were not competent representations within the scope or ambit of s 18(2) of the TPD Act, in addition to its report in relation to the part of the representations which will be heard.
I certify that this and the preceding 19 pages comprise the reasons for decisions of the Tribunal.
____________________________
D R Parry, Senior Member
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