| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : EG CUSTODIAN SERVICES PTY LTD and TOWN OF VICTORIA PARK [2009] WASAT 237 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 25 AND 26 NOVEMBER 2009 DELIVERED : EDITED REASONS DELIVERED ORALLY ON 26 NOVEMBER 2009 FILE NO/S : DR 144 of 2009 BETWEEN : EG CUSTODIAN SERVICES PTY LTD Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords: Town planning - Development application - Residential development - Preliminary issues - Residential density - R60 code - Approval requires exercise of three discretions - Whether increase in permitted dwelling density by up to 50% if proposed development effects the discontinuance of a non-conforming use may be granted - Site specific provision in precinct plan states that development 'shall be in accordance with the standards prescribed for Residential R 60' and to be 'for medium density residential use' - Whether sitespecific provision excludes discretion - Exercise of discretion guided by sitespecific provision - Increase in dwelling density by up to 50% cannot
(Page 2)
reasonably be granted as it would involve high density residential use - Whether development application is 'a non-complying application' - Practice and procedure - Identification and adjudication of potentially determinative preliminary issues - Minimising costs to parties Legislation: Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2008), cl 6.1.3, cl 6.1.3 A3, cl 6.1.3 A3.1, cl 6.1.3 P3.1, cl 7.1.3, Pt 6, Table 1
Town of Victoria Park Town Planning Scheme No 1, cl 3(1), cl 3(2), cl 7(3), cl 11(1), cl 11(2), cl 23(1), cl 23(2), cl 23(3), cl 38, cl 38(1), cl 38(2) Result: Increase in permitted dwelling density by up to 50% cannot reasonably be granted
The development application is not relevantly 'a non-complying application' Category: B
Representation: Counsel:
Applicant : Mr MJ Hardy
Respondent : Mr DW McLeod
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272
(Page 3)
<Judge>REASONS FOR DECISION OF THE TRIBUNAL</Judge>:
Summary of Tribunal's decision 1 At the commencement of a hearing concerning a development application for a 110dwelling residential proposal, scheduled over three days, the Tribunal identified a potentially determinative preliminary issue. During discussion with the parties' representations, the Tribunal formulated a second potentially determinative preliminary issue. 2 Following the parties' submissions on the preliminary issues, the Tribunal gave an oral decision. The Tribunal determined that, guided by site-specific provisions in the relevant precinct plan that intended to comprehensively establish residential dwelling density for the land as essentially medium density housing, the necessary increase in dwelling density to enable approval of the application by up to 50% over R60 could not reasonably be granted, as it would result in a high density development. The Tribunal also determined that the development application is not relevantly 'a non-complying application' so that discretion could be exercised under the local planning scheme to increase the density to that which was proposed. 3 The consequence of the Tribunal's decision was that the proposed residential density could not be approved. The application was adjourned to enable the applicant to consider its position. 4 In its conclusion, the Tribunal observed that it was most unfortunate that the parties prepared for and were about to embark on a contested threeday hearing in relation to the merits of the application, in circumstances where there were two potentially determinative preliminary issues. The Tribunal noted that it expects parties to conduct proceedings in a way that minimises costs. The identification and adjudication of potentially determinative preliminary issues is one means by which this can occur.
Introduction 5 EG Custodian Services Pty Ltd (applicant) has sought review by the Tribunal, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), of the decision of the Town of Victoria Park (Town or Council) to refuse a development application for the construction of 110 dwellings in the form of multiple dwellings and grouped dwellings on Lot 300 on Diagram 54665 (Lot 300) and Lot 115 on Plan 757 (Lot 115), which have (Page 4)
the respective street addresses of 200 Great Eastern Highway and 5 Streatley Road, Lathlain (site). 6 Lot 300 has an area of 8,824 square metres and Lot 115 has an area of 1,102 square metres. The site has a total area of 9,832 square metres. Lot 300 is currently used as a motel, known as the Red Castle Motel, with 44 units. Most of the units are in a six storey building and the remainder in single and two storey buildings. Lot 115 comprises a single dwelling which has been used as a caretaker's dwelling. 7 The site is zoned Residential under the Town of Victoria Park Town Planning Scheme No 1 (TPS 1 or Scheme). Lot 300 has a residential density coding of R60 under the Scheme and Lot 115 has a residential density of R20 under the Scheme. The current use of Lot 300 as a motel is a nonconforming use under TPS 1. Land to the north, south and east of the site is zoned Residential, with a density coding of R20 under the Scheme. To the west of the site is Rutland Avenue and Great Eastern Highway. 8 Under cl 11(1) of the Scheme, the Scheme area is divided into 13 precincts. The site is located in Precinct P7 Lathlain. Clause 11(2) of the Scheme states that there is a Precinct Plan for each precinct. The relevant precinct plan for Precinct P7 Lathlain is Precinct Plan P7 (PP7).
Relevant Scheme provisions 9 Clause 3(1) of TPS 1 states that the Scheme comprises documents including the Scheme text and each of the precinct plans. Clause 3(2) of TPS 1 states that: If there is any inconsistency between the Scheme text and any other Scheme document, the Scheme text is to prevail. 10 Clause 7(3) of TPS 1 provides that the Residential Design Codes of Western Australia (2008) (Codes) 'are to be read as part of this Scheme'. 11 Clause 23(1) to cl 23(3) of TPS 1 state as follows: (Page 5)
proposed development effects the discontinuance of a nonconforming use. (3) Where the Council allows an increase in the permitted dwelling density, the standards and provisions of the [Codes] which relate to that higher density are to apply. 12 The density number illustrated on PP7 for Lot 300 is R60 and for Lot 115 is R20. However, PP7 also contains the following site-specific provision in relation to Lot 300: RED CASTLE MOTEL SITE: This area is currently occupied by a motel. This use may continue to operate in a manner that does not adversely affect nearby residential properties. Should redevelopment of this site be proposed[,] the appropriate new uses for the site would be those indicated in the Zoning Table and outlined for a Residential Zone such as multiple dwellings and grouped dwellings. Any specialised forms of accommodation will be subject to the advertising procedure as referred to in the Scheme Text. Development shall be in accordance with the standards prescribed for Residential R60. Priority will be given to minimising the impact of any development on adjacent residential uses or land through appropriate site layout and design. Development should be generally limited in height to 3 storeys. 13 In addition, PP7 states the following in relation to Lot 300: 14 Finally, cl 38(1) and cl 38(2) of TPS 1 state as follows: (Page 6)
(2) Subject to subclause (3), the Council may refuse or approve a noncomplying application.
Proposed residential density 15 As noted earlier, the proposed development comprises 110 dwellings. However, the residential density coding of the site contemplates a maximum of 55 dwellings, being 53 dwellings on Lot 300 and two dwellings on Lot 115. 16 It is common ground that, in order for the proposed residential density to be approved, three sources of discretion, if available, must be exercised in favour of the proposed development, namely: 1) An increase in the permitted dwelling density by 50% under cl 23(2) of TPS 1, on the basis that the proposed development effects the discontinuance of a nonconforming use; this would enable an increase in the number of dwellings from 55 to 81. 2) A reduction in the minimum site area per dwelling for the purposes of a single bedroom dwelling under cl 6.1.3 A3 and cl 7.1.3 of the Codes; this would enable an increase in the number of dwellings from 81 to 93, as there are 36 single bedroom dwellings proposed. 3) Approval of 'a noncomplying application' under cl 38 of TPS 1; this would enable an increase in the number of dwellings from 93 to the 110 that are proposed.
Preliminary issues 17 At the commencement of the final hearing, which was listed to take place over three days, the Tribunal identified a potentially determinative preliminary issue. During discussion with the parties' representatives, the Tribunal formulated a second preliminary issue, which is also potentially determinative. 18 The two preliminary issues for determination are as follows: (Page 7)
in consequence of which the residential density proposed in the development application is capable of approval. 19 Having heard initial submissions from the parties on these issues, the hearing was adjourned to the following day to enable the parties to present considered arguments. 20 The Tribunal will address each of these issues in turn.
Whether an increase in the permitted dwelling density by up to 50% may be granted 21 Mr Dennis McLeod, counsel for the Town, submitted that there is 'an extremely strong indication' within the Scheme, and, in particular, in the site-specific provisions in PP7 set out earlier, that the Residential R60 density should be applied to the site. Mr McLeod noted that the reference to this density is expressed in mandatory terms and contrasted this mandatory expression with other parts of the precinct plan. 22 Mr McLeod did not submit that, properly interpreted, PP7 precludes the operation of the discretion in cl 23(2) of the Scheme. However, he submitted that the clear indication of development density for the site in PP7 should guide the exercise of discretion under cl 23(2) of the Scheme. In this regard, Mr McLeod emphasised the words 'medium density' in PP7. 23 Mr Michael Hardy, counsel for the applicant, submitted that there is nothing in the text of the Scheme that reflects, expressly or by implication, a 'cap' on density or the nonapplication of the 'bonus' contemplated by cl 23(2) of TPS 1. Mr Hardy also submitted that the wording of the site-specific provisions does not make it clear that density should be fixed at R60. 24 In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation(Cth) (1981) 147 CLR 297, Mason and Wilson JJ stated, at 320, as follows: The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. 25 The Tribunal considers that the legislative intention manifested in the site-specific provisions in PP7 in relation to Lot 300 set out earlier is to comprehensively establish maximum residential dwelling density (Page 8)
for Lot 300 as essentially medium density housing. The Tribunal has come to this conclusion for the following three reasons. 26 Firstly, the provisions are site-specific and expressly describe the type of density of development that should occur on Lot 300 if it is redeveloped from motel use. Secondly, the provisions form part of the same planning instrument as cl 23(2) of the Scheme and were made and came into force at the same time as cl 23(2) of the Scheme, namely, on 30 September 1998. Thirdly, the provisions are expressed in mandatory terms: 'Development shall be in accordance with the standards prescribed for residential R60', and 'The site to be developed for medium density residential use as prescribed for Residential R60'. 27 It is correct, as Mr Hardy submitted, that PP7 does not state that it overrides cl 23(2) of the Scheme. However, the legislative intention to comprehensively establish residential dwelling density for Lot 300 is clear from the factors identified earlier. Nevertheless, the provisions of PP7 could not have the effect of excluding the availability of the discretion under cl 23(2) of the Scheme, because cl 3(2) of TPS 1 provides that if there is any inconsistency between the Scheme text, including cl 23(2), and any other Scheme document, including PP7, the Scheme text is to prevail. 28 The consequence is that PP7 does not exclude the availability of the discretion under cl 23(2) of the Scheme. However, the exercise of the discretion under cl 23(2) of TPS 1 is informed or guided by the clear intent of PP7 to establish the maximum residential dwelling density of Lot 300 as essentially medium density. 29 Table 1 of the Codes indicates that medium density codes are from R30 to R60 and that high density codes are from R80 to R160. Informed or guided by the intent of PP7, an increase in the permitted dwelling density by up to 50% cannot reasonably be granted, because a 50% increase would result in a high density development. 30 In practical terms, having regard to PP7, cl 23(2) of the Scheme would relevantly contemplate an increase in the permitted dwelling density by up to about onesixth to about R70, if otherwise appropriate, on Lot 300. This equates to 61 dwellings on Lot 300 in addition to the two dwellings on Lot 115, making a total of 63 dwellings. Higher density than about R70 would not be essentially medium density. 31 In addition, there is discretion under cl 6.1.3 and cl 7.1.3 of the Codes to reduce the minimum site area for the purpose of single bedroom (Page 9)
dwellings by up to onethird. The explanatory text of the Codes states that single bedroom dwellings do not generate the same demands for car parking and result in less building bulk than larger dwellings: Pt 7 at 4 of the Codes. The explanatory text also states that the exercise of a density concession for a special purpose dwelling, including a single bedroom dwelling, 'does not mean that the coding of a lot is amended;' Pt 6 at of the Codes. Therefore, reducing the maximum site area per dwelling for the purpose of a single bedroom dwelling under cl 6.1.3 and cl 7.1.3 of the Codes does not have the result that a medium density development ceases to be medium density, simply because it contains additional single bedroom dwellings as a result of the variation. 32 In the proposed development, slightly less than onethird of the dwellings are single bedroom dwellings. By way of illustration, applying the same percentage to 63 dwellings, 20 or 21 single bedroom dwellings would be proposed. This would enable an increase in the number of dwellings by six or seven to 69 or 70 dwellings. However, this is an illustration only. There is no limit to the proportion of single bedroom dwellings in a development under the Codes. Subject to merit considerations, a greater number of dwellings on the site than 69 or 70 may be possible where more than onethird of the dwellings are single bedroom dwellings.
Whether the development application is a non-complying application 33 Mr McLeod submitted, in reliance on Mainbush Pty Ltd and Shire of Mundaring [2007] WASAT 272 (Mainbush) at [16], that the permitted dwelling density per hectare of R60 illustrated on PP7 is not a 'standard or requirement' within the meaning of cl 38 of TPS 1. However, as Mr Hardy observed, in contrast to the relevant Scheme provisions considered in Mainbush, cl 23(1) of TPS 1 clearly describes the density code in terms of a standard or requirement by the words 'the permitted site dwelling density per hectare'. The decision in Mainbush at [16] is therefore distinguishable in this case. 34 Mr McLeod and Mr Hardy agreed that Mainbush is also distinguishable in this case in relation to the discussion at [17] [25] as to whether the minimum and average site areas stipulated by the Codes were a 'standard or requirement' prescribed by the local planning scheme. We agree that Mainbush is distinguishable in this case on this aspect as, in contrast to the planning scheme considered in Mainbush, under TPS 1, the Codes 'are to be read as part of this Scheme': cl 7(3) of TPS 1. (Page 10)
35 Mr Hardy made two further submissions. First, he submitted that a development application is 'a noncomplying application', within the meaning of cl 38 of the Scheme, if it does not comply with any standard or requirement set out in the Scheme or in the relevant precinct plan where that standard or requirement does not provide for any permitted variation. Furthermore, because cl 7(3) of the Scheme provides that the Codes 'are to be read as part of this Scheme', a development application is a noncomplying application if it does not comply with any standard or requirement set out in the Codes, where that standard or requirement does not provide for any permitted variation. Mr Hardy contended that, because the proposed development exceeds the maximum plot ratio of 0.7 specified in Table 1 of the Codes for the R60 code, it is 'a noncomplying application' for the purposes of cl 38 of the Scheme, and therefore, that the residential density proposed in the development application is capable of approval. 36 However, the evident purpose of cl 38 of TPS 1 is to enable discretion to be exercised in relation to a particular noncompliance with a standard or requirement, where no variation of that standard or requirement is otherwise available. The purpose is not to enable a variation to a standard or requirement that itself provides for variation, simply because the development application is also not compliant with another standard or requirement that does not itself provide for a variation. 37 Furthermore, the Tribunal said in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272; (2005) 41 SR (WA) 79, at [69], that: … On balance, it would appear that discretion is available [to vary plot ratio under cl 2.3.4 of the Residential Design Codes of Western Australia (2002); see now cl 2.5 of the Codes], although, in light of other findings, the Tribunal does not have to, and does not, come to a final view on this question. 38 Second, Mr Hardy submitted that the words 'permitted variation' referred to cl 38 should be construed as a reference to a general discretion, rather than a specific discretion of the nature contemplated by cl 23(2) of the Scheme. However, cl 38 of the Scheme uses the words 'any permitted variation'. The word 'any' is relevantly defined in the Macquarie Dictionary (4th ed) at 60 as '2. in whatever quantity or number, great or small …' and '4. (with a negative) none at all'. 39 The development application that is before the Tribunal in this case is not relevantly 'a noncomplying application' within the meaning of cl 38 (Page 11)
of the Scheme, because, as Mr McLeod submitted, the Scheme and the Codes provide for a permitted variation in relation to residential density. Indeed, these instruments provide two relevant sources of variation. The Scheme provides for a permitted variation under cl 23(2), where a proposed development effects the discontinuance of a nonconforming use. Furthermore, the Codes provide for a permitted variation under cl 6.1.3 P3.1 of the Codes in relation to grouped dwellings and under cl 6.1.3 A3.1 and cl 7.1.3 of the Codes for the purpose of a single bedroom dwelling.
Conclusion 40 Informed or guided by PP7, an increase in the permitted dwelling density by up to 50% cannot reasonably be granted under cl 23(2) of the Scheme, because a 50% increase would result in a high density development. In practical terms, if otherwise appropriate, an increase in permitted dwelling density by up to about onesixth to about R70 could be granted. This equates to 61 dwellings on Lot 300, in addition to the two dwellings on Lot 115, making a total of 63 dwellings. 41 In addition, if the same proportion of single bedroom dwellings were proposed as in the current development application, an additional six or seven single bedroom dwellings could be allowed under cl 6.1.3 and cl 7.1.3 of the Codes. This would enable 69 or 70 dwellings on the site. However, there is no limit in the Codes to the proportion of single bedroom dwellings. An increased proportion of single bedroom dwellings would, subject to merit considerations, enable a greater number of dwellings than 70 on the site. 42 The development application is not relevantly 'a noncomplying application' within the meaning of cl 38 of the Scheme. The residential density proposed in the development application is not capable of approval. 43 Consistently with this decision, about 40 dwellings, or 36% of the proposed number of dwellings in the development application, would need to be deleted. Although, in order to express a considered view, the Tribunal would need to see any modified plans, it would seem unlikely that a modified development with 40 less units would be, in substance, the same development application. However, it is appropriate to allow the applicant some time to consider its position. 44 Finally, the Tribunal notes that it is most unfortunate that the parties prepared for and were about to embark upon a contested threeday hearing (Page 12)
in relation to the merits of the application, in circumstances where there were two potentially determinative preliminary issues. Both parties are legally represented and there appears to be no reason why the preliminary issues formulated by the Tribunal at the commencement of the hearing could not have been identified much earlier by the parties, certainly well before considerable expenditure was no doubt incurred by both parties in professional costs of witnesses. 45 The parties collectively filed witness statements by eight expert witnesses and four lay witnesses. The expert witnesses conferred with one another prior to the hearing and filed joint statements. The costs of preparing these witness statements were largely wasted. While the Tribunal, having formulated the preliminary issues at the commencement of the hearing and adjudicating on these issues, has saved the parties no doubt further considerable costs, it is regrettable that the professional costs were wasted. The Tribunal expects parties to conduct proceedings in a way that minimises costs to themselves and to the public purse through the provision of the Tribunal's services. The identification and adjudication of preliminary issues, where they are potentially determinative, is one means by which this can occur. Parties and the Tribunal should be more vigilant in the future.
Orders 46 The Tribunal makes the following orders. 1. The preliminary issues are answered as follows: 2. The matter is adjourned to a directions hearing at 10.30 am on 18 December 2009. (Page 13)
|