Drakeley and City Of Canning
[2007] WASAT 160
•22 JUNE 2007
DRAKELEY and CITY OF CANNING [2007] WASAT 160
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 160 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:21/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 22/06/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The imposition of the public open space contribution requirement can be waived in limited circumstances but is otherwise mandatory | ||
| B | |||
| PDF Version |
| Parties: | MARTIN JOHN DRAKELEY CITY OF CANNING |
Catchwords: | Town planning Conditional approval of development application Redevelopment of caravan park Condition that applicant "is to satisfy all requirements of" guided development town planning scheme Scheme states that "Council shall require as a condition of planning consent that the developer pay to it a sum equal to...10%...of the value of the parcel of land" for public open space Preliminary issue Whether imposition of public open space contribution condition is mandatory Whether there is an "earlier" preliminary issue as to whether the condition, by its terms, requires payment of the public open space contribution Powers of Tribunal on review Distinction between administrative review and judicial review |
Legislation: | City of Canning Town Planning Scheme No 21 - Queens Park/East Cannington Guided Development Scheme, cl 5(a), c 5(g), cl 21, cl 24, cl 26, cl 26(1)(b), cl 26(4), cl 27, cl 28, cl 29, cl 30(1) Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 13(3)(b), s 27(2), s 29(1), s 29(5), s 91, s 91(1), s 91(2) |
Case References: | Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143 Randall and Town of Vincent [2005] WASAT 147 |
Orders | 1. The preliminary issue raised by the respondent is answered as follows: "The imposition of the public open space contribution requirement under cl 27 of the City of Canning Town Planning Scheme No 21 - Queens Park/East Cannington Guided Development Scheme can be waived in limited circumstances but is otherwise mandatory.",2. The proceedings are listed for directions at 11.30 am on 6 July 2007 in order to consider the further conduct of the matter. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DRAKELEY and CITY OF CANNING [2007] WASAT 160 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 JUNE 2007 FILE NO/S : DR 21 of 2007 BETWEEN : MARTIN JOHN DRAKELEY
- Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Town planning - Conditional approval of development application - Redevelopment of caravan park - Condition that applicant "is to satisfy all requirements of" guided development town planning scheme - Scheme states that "Council shall require as a condition of planning consent that the developer pay to it a sum equal to ... 10% ... of the value of the parcel of land" for public open space - Preliminary issue - Whether imposition of public open space contribution condition is mandatory - Whether there is an "earlier" preliminary issue as to whether the condition, by its terms, requires payment of the public open space contribution - Powers of Tribunal on review - Distinction between administrative review and judicial review
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Legislation:
City of Canning Town Planning Scheme No 21 - Queens Park/East Cannington Guided Development Scheme, cl 5(a), c 5(g), cl 21, cl 24, cl 26, cl 26(1)(b), cl 26(4), cl 27, cl 28, cl 29, cl 30(1)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 13(3)(b), s 27(2), s 29(1), s 29(5), s 91, s 91(1), s 91(2)
Result:
The imposition of the public open space contribution requirement can be waived in limited circumstances but is otherwise mandatory
Category: B
Representation:
Counsel:
Applicant : Mr JCW Skinner
Respondent : Mr DW McLeod
Solicitors:
Applicant : Jackson MacDonald
Respondent : McLeods
Case(s) referred to in decision(s):
Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143
Randall and Town of Vincent [2005] WASAT 147
(Page 3)
Summary of Tribunal's decision
1 The Tribunal was called upon to determine a preliminary issue as to whether the imposition of a public open space contribution requirement is mandatory on approval of the redevelopment of a caravan park in a guided development area.
2 The Tribunal determined that the imposition of a public open space contribution requirement can be waived in limited circumstances but is otherwise mandatory. The circumstances in which the contribution can be waived are where the development is not residential and where the development will not increase residential density on the parcel of land.
Introduction
3 Mr Martin Drakeley seeks review by the Tribunal of the decision of the City of Canning (City or Council) to grant conditional development approval for the redevelopment of a caravan park at No 230 (Lot 16) Treasure Road, Queens Park (Lot 16). In particular, Mr Drakeley would like condition 8 of the development approval to be waived. Mr Drakeley's right to seek review is conferred by s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
4 The City raised a preliminary issue which can be stated as follows:
Whether the imposition of the public open space contribution requirement under cl 27 of the City of Canning Town Planning Scheme No 21 – Queens Park/East Cannington Guided Development Scheme (TPS 21 or Scheme) is mandatory.
5 Mr Drakeley then asserted that there is "an earlier preliminary issue inherent in the [City's] formulation of the preliminary issue", namely:
Whether condition 8, by its terms, requires payment of the public open space contribution sought by the City by reference to cl 27 of TPS 21.
6 Mr Drakeley says that if the answer to the "earlier" preliminary issue is "no", he seeks to amend his application for review to seek a declaration pursuant to s 91 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the planning consent issued by the City does not require him to pay a public open space contribution.
(Page 4)
7 In these reasons for decision, I will at first set out the agreed facts on the basis of which the matter has proceeded, before considering whether Mr Drakeley's "earlier" preliminary issue properly arises for determination and determining the preliminary issue raised by the City.
Agreed facts
8 The matter has proceeded on the basis of the following agreed facts:
"1. No 230 (Lot 16) Treasure Road, Queens Park ('Lot 16') is located within the local government area of the City of Canning.
2. Lot 16 is within the area governed by the City of Canning Town Planning Scheme No 21 ('TPS 21').
3. There is an existing caravan park on Lot 16.
4. On 9 November 2005, the City received an application for Council's development approval for 'redevelopment of caravan park'. The application plans refer to 39 'chalets', 'communal facilities' and two 'short-stay units'.
5. Council considered the application at its meeting held on 19 December 2006 and resolved to grant conditional approval to 'proposed development of existing caravan park for 39 park homes, two short-stay accommodation units and manager's unit'.
6. Condition 8 of the approval states –
'Prior to the issue of a building licence for the proposed development the subject of this application, the applicant/owner is to satisfy all requirements of Council's Development Scheme No 21. (See Note K)'
7. Note K reads -
'In regard to condition 8 please contact Council's Land Administration Officer on
- 9231 0700 in reference to satisfying the requirement of the subject development scheme.'
- 8. The only development scheme that applies to Lot 16 is TPS 21.
9. TPS 21 contains various provisions setting out requirements to be complied with in relation to the subdivision and/or development of land within the Scheme Area.
10. Clause 27 of TPS 1 provides –
'With the exception of land referred to in Clause 30A hereof, where development is proposed on a parcel of land not less than 2000 square metres (2000 [square metres]) in area and no public [open] space contribution has been made in respect thereof as a condition of its subdivision from a larger area of land the Council shall require as a condition of planning consent that the developer pay to it a sum equal to ten per centum (10%) of the value of the parcel of land as at the date of the granting of the approval to the development.'
11. The term 'development' in TPS 21 has the same meaning as in the Planning and Development Act 2005, and includes the Applicant's proposed caravan park development.
12. Lot 16 is not land referred to in Clause 30A of TPS 21.
13. Lot 16 has an area of greater than 2000 [square metres]
14. No public open space contribution has previously been made in respect of Lot 16 as a condition of Lot 16's subdivision from a larger area of land.
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- 15. The Council of the Respondent on 14 December 1994 gave development approval for 'Use of Caravan Park Bays 1,2 and 10 for parking of three mobile/park homes'.
16. The Council of the Respondent on 9 December 1999 gave development approval for 'Caravan park – Convert two caravan bays to two cabins'.
17. The approvals on 14 December 1994 and 9 December 1999 did not include a condition such as Condition 8 above, and the applicants in each case were not required to pay to the Respondent a sum of 10% of the value of Lot 16.
18. On 16 January 2007, the application under section 252(1) of the Planning and Development Act 2005 for review of a decision under a local planning scheme was filed with the State Administrative Tribunal by Martin J Drakeley for Perth City Caravan Park Pty Ltd.
19. The decision sought by the application is 'waivering of condition 8 as listed on development approval dated 19 December 2006'."
Preliminary issue or preliminary issues?
9 As noted earlier, Mr Drakeley contends that there is an "earlier" preliminary issue to the preliminary issue raised by the City. As put by Mr JCW Skinner, counsel for Mr Drakeley, "[t]he first preliminary issue is to ascertain the scope of Condition 8 – in other words, whether compliance with Condition 8 actually requires the payment sought by the Respondent". Mr Skinner went on to say that his client "seeks a declaration that the planning consent issued by the Respondent on 20 December 2006 does not require the Applicant to pay to the Respondent a sum equal to 10% of the value of the parcel of land".
10 Section 91(1) of the SAT Act states that the Tribunal "may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding". However, s 91(2) states that the Tribunal's power to make a declaration under subsection (1) is exercisable only by a judicial member. The parties
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- were aware through directions hearings that the preliminary issue or issues were listed by determination on the documents by me and not by a judicial member.
11 In any case, the "earlier" preliminary issue identified by Mr Drakeley does not properly arise for determination in these review proceedings. The issue confuses administrative review and judicial review.
12 As noted earlier, these proceedings involve an application for review under s 252(1) of the PD Act of the City's decision to grant conditional development approval for the redevelopment of the caravan park. The Tribunal's task in review proceedings is not to undertake judicial review of an administrative decision, but rather to engage in an administrative review of the decision. Indeed, s 19(3)(b) of the SAT Act states that if a Tribunal proceeding for the review of a reviewable decision has commenced, judicial review proceedings cannot subsequently be commenced in relation to the decision. The purpose of the Tribunal's review "is to produce the correct and preferable decision at the time of the decision upon the review": SAT Act s 27(2). In this regard, the Tribunal has "functions and discretions corresponding to those exercisable by the [City] in making the reviewable decision": SAT Act s 29(1).
13 Consequently, if, as the City asserts, the imposition of a public open space contribution requirement is mandatory under cl 27 of TPS 21, the Tribunal, charged with producing the correct and preferable decision at the time of the decision upon the review, and exercising the functions and discretions of the City in making the reviewable decision, must impose a condition which gives effect to cl 27. Even if condition 8 as imposed by the City does not, by its terms, require the payment sought by the City, or is not sufficiently certain to be capable of imposition, in the event that a public open space contribution condition is mandatory, the Tribunal must vary the condition in determining the proceedings so that is gives effect to cl 27.
14 In contrast, the preliminary issue identified by the City as to whether the imposition of the public open space contribution requirement under cl 27 of TPS 1 is mandatory does properly arise, and, if decided in the City's favour, is determinative of the application.
Is the imposition of the public open space contribution requirement mandatory?
15 Mr DW McLeod, counsel for the City, submits that the imposition of the public open space contribution requirement under cl 27 of TPS 21 is
(Page 8)
- mandatory and that development approval cannot be lawfully given to the proposed development without imposing a condition requiring the 10% public open space contribution.
16 Mr Skinner accepts that, on the literal interpretation of cl 27, the City is correct. However, Mr Skinner submits that the literal interpretation would be "contrary to the clear purpose and effect of TPS 21". He reasons that, interpreted literally, cl 27 would require a landowner to pay to the City a sum equal to 10% of the value of the land in question "each and every time that any development on the land is approved". This is "an absurd and unreasonable result and cannot have been the purpose or intention" of the clause. Mr Skinner submits that "a reasonable interpretation of cl 27 of TPS 21, which accords with the effect of other provisions of TPS 21, is that the payment referred to is to be required only in circumstances where the approved development is such that represents a fundamental change to the nature of the landholding similar to that of subdivision". Alternatively, Mr Skinner contends that words should be implied into cl 27 to the effect that the City "shall have regard to the nature of the development proposed in determining when to impose the condition requiring payment of the 10% contribution". Mr Skinner submits that the Council's own conduct in approving the use of caravan park bays 1, 2 and 10 for parking of three mobile/park homes in 1994 and the conversion of two caravan bays to two cabins in 1999, without requiring by condition the payment of a sum equal to 10% of the value of the parcel, confirms that there is an element of discretion in cl 27 when properly interpreted.
17 The Tribunal has acknowledged in a number of decisions, most recently in Cityrun Pty Ltd and Town of Cambridge [2007] WASAT 143 at [38] – [41], that it must read a provision of a planning scheme in its statutory context and give effect to the purpose or object of the provision in determining its meaning.
18 The general objects of TPS 21 include "to facilitate and encourage the progressive subdivision and development of the land within the Scheme Area for residential[,] business and recreational purposes" (cl 5(a)) and "to make provision for land to be used for public open space, recreation and local centre purposes" (cl 5(g)). Clause 24 states that "it is intended that the land shown on the Scheme Map as local open space shall be reserved to public open space". The clauses that follow provide for the acquisition of this land by the City. Clause 26(1)(b) states that, subject to sub-clauses (2), (4) and (5), "each owner when subdividing [their] land shall contribute towards public open space" by, if no part of the owner's
(Page 9)
- land is shown as local open space on the Scheme Map, paying to the Council 10% of the value of the land the subject of the subdivision. Clause 26(4), to which the obligation stated in cl 26(1)(b) is subject, states as follows:
"For the purpose of this Clause, where Council is of the opinion that the proposed subdivision will not increase the residential density of a development, or where the subdivision is required as a prerequisite to rezoning of land for purposes other than residential, Council may, subject to approval by the State Planning Commission, waive the requirement for public open space contribution under the preceding clauses. The provisions of this clause may be applied retrospectively."
20 When cl 27 is read in this statutory context it is apparent that its purpose or object is to ensure that the City receives 10% of the value of a development site at development stage where it did not receive 10% of the value of the development site at subdivision stage in order to fund the acquisition and development of the land shown as local open space on the Scheme Map. The payment at development stage, where required by the Scheme, is a substitute for the payment at subdivision stage. It is implicit, therefore, in cl 27 that the Council may waive the requirement for a public open space contribution which is otherwise required by the Scheme at development stage in circumstances which correspond to those in which the Council is expressly authorised by cl 26(4) to waive the requirement for a public open space contribution, subject to the approval of the Western Australian Planning Commission (Commission), at subdivision stage. It is implicit in cl 27 that the approval of the Commission is not necessary for the Council to waive the requirement for a public open space contribution at development stage, because, in contrast to
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- subdivision, the Council, rather than the Commission, is the responsible authority for consideration and approval of a development application.
21 The circumstances in which the Council may, with the approval of the Commission, waive the requirement for a public open space contribution at subdivision stage are:
• where the Council is of the opinion that the proposed subdivision will not increase the residential density of a development; and
• where the subdivision is required as a pre-requisite to rezoning of the land for purposes other than residential.
22 It follows that the circumstances in which the Council may waive the requirement for a public open space contribution at development stage are:
• where the Council is of the opinion that the proposed development will not increase the residential density of the parcel of land; and
• where the development is not residential.
23 In relation to Mr Skinner's submissions, it is implicit in cl 27 that this provision does not require a landowner to pay to the Council 10% of the value of the land in question each time any development on the land is approved. Such an interpretation would not accord with the purpose or object of the provision, because it would result in the City receiving more than 10% of the value of the development site over time. Where development approval is granted for development of a parcel of 2000 square metres or more in area, subject to a condition requiring the developer to pay a sum equal to 10% of the value of the parcel, and the development is commenced, on its proper interpretation, cl 27 does not permit the Council to charge a subsequent developer of the same parcel 10% of the then value of the parcel.
24 However, there is no basis in the text, context or purpose of cl 27 for Mr Skinner's suggested interpretation of the clause that it is only when there is "a fundamental change in the nature of the landholding" that a condition requiring the public open space contribution can be imposed.
(Page 11)
25 Mr Skinner's alternative submission that, on the proper interpretation of cl 27, the Council must have regard to the nature of the development proposed in determining when to impose the condition requiring payment of the 10% contribution is partly correct. For reasons discussed earlier, the imposition of the public open space contribution requirement can be waived where the Council (or the Tribunal review) is of the opinion that the proposed development will not increase the residential density of the parcel or where the development is not residential. The Council must have regard to the nature of the development in order to determine whether it is open to waive the requirement and, if so, whether it should be waived in the exercise of discretion.
26 However, the Council's actions in granting previous development applications do not bear on the proper interpretation of cl 27. Furthermore, the 1994 and 1999 development applications related to small and discrete parts of Lot 16. The development in each case was proposed on parcels of land less than 2000 square metres in area. The Council was not, therefore, required or permitted by cl 27 of TPS 21 to impose a condition requiring the payment to it of a sum equal to 10% of the value of the land the subject of each development application. In contrast, the development that is the subject of these proceedings is proposed on Lot 16 as a whole, which is relevantly a parcel of land not less than 2000 square metres in area.
Conclusion
27 Clause 27 of TPS 21 allows the public open space requirement to be waived in limited circumstances. The circumstances are where the proposed development will not increase the residential density of the parcel or is not residential. If one of these criteria is established, there is a discretion to waive the requirement. Although the discretion is not limited or qualified, it would be expected that the establishment of the relevant criterion would be a material consideration in the exercise of discretion. However, if the requirement cannot be or is not waived in this way, it is mandatory.
28 The matter should now proceed to a determination as to whether the requirement for the public open space contribution can and should be waived in the circumstances of this case.
29 Finally, I note that if the public open space contribution requirement is not ultimately waived in this case, condition 8 as imposed by the City is not sufficiently certain in its terms to be imposed by the Tribunal; see Randall and Town of Vincent [2005] WASAT 147 at
(Page 12)
- [14] - [19]. However, exercising the functions and discretions of the Council, the Tribunal may vary condition 8 to reflect the terms of cl 27 of TPS 21. Section 29(5) of the SAT Act provides relevantly that, unless the PD Act states otherwise or the Tribunal orders otherwise, the City's decision as varied by the Tribunal is to be regarded as having effect, or having had effect, from the time when the decision under review would have, or would have had, effect. It follows that the date of the approval of the development which should be referred to in condition 8 as varied if imposed by the Tribunal is 19 December 2006, rather than the date of the Tribunal's decision.
30 If the public open space contribution requirement is not waived by the Tribunal, condition 8 imposed by the Council should be deleted and the following condition inserted in its place:
"8. Prior to the issue of a building licence for the approved development, the developer must pay to the City of Canning a sum equal to 10% of the value of No 230 (Lot 16) Treasure Road, Queens Park as at 19 December 2006."
Orders
31 The Tribunal makes the following orders:
1. The preliminary issue raised by the respondent is answered as follows:
"The imposition of the public open space contribution requirement under cl 27 of the City of Canning Town Planning Scheme No 21 - Queens Park/East Cannington Guided Development Scheme can be waived in limited circumstances but is otherwise mandatory."
2. The proceedings are listed for directions at 11.30 am on 6 July 2007 in order to consider the further conduct of the matter.
(Page 13)
- I certify that this and the preceding [31] 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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