FIRKINS and TOWN OF CLAREMONT - [2011] WASAT 207

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: FIRKINS and TOWN OF CLAREMONT [2011] WASAT 207

MEMBER: MS M CONNOR (MEMBER)

HEARD: ON THE DOCUMENTS

DELIVERED : 22 DECEMBER 2011

FILE NO/S: DR 227 of 2011

BETWEEN: KEVIN FIRKINS
CAROLINE FIRKINS
Applicants
AND
TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning Condition of planning approval Notification of condition on title Whether condition has a proper planning purpose and is reasonable and appropriate Condition seeking to impose legal obligations Continuing effect of another condition

Legislation:

Residential Planning Codes of Western Australia (1991), cl 1.3.1
Town of Claremont Town Planning Scheme No 3, cl 14(5), Table 1
Transfer of Land Act 1893 (WA), s 70A

Result:

Application for review allowed
Decision of respondent varied

Category: B

Representation:

Counsel:

Applicants: Peter D Webb
Respondent: Richard Bairstow

Solicitors:

Applicants: Peter D Webb & Associates (Town Planners)
Respondent: Town of Claremont

Case(s) referred to in decision(s):

Antonas and Town of Vincent (2006) 45 SR (WA) 327
Compliance Admin Services Pty Ltd v Town of Claremont (2004) 37 SR (WA) 28
L R Archibald & Co Pty Ltd and Western Australian Planning Commission [2010] WASAT 129
Miragliotta and Town of Vincent [2008] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The proceedings concerned a review of a condition of planning approval granted for 'alteration to an existing pool house' at No 29 (Lot 50) Reserve Street, Claremont. The subject condition required the registration of a notification on title, under s 70A of the Transfer of Land Act 1893 (WA), of a planning condition prohibiting use of the pool house for the purposes of ancillary accommodation.
The Tribunal determined that the planning condition did not have a proper planning purpose and was not reasonable or appropriate in the circumstances of this case, as the condition did no more than recall on title one of the land use classifications prohibited in the Residential zone under Town of Claremont Town Planning Scheme No 3, thereby seeking to impose legal obligations already found in the applicable planning instrument. Further, the Tribunal found that condition 1.2 was not a condition that would impose a relevantly continuing obligation relating to the approved use which affected the use of enjoyment of the land, but only served to identify a particular alternate use to which the building could not be used.
The Tribunal also found that the description of the structure as 'outbuilding' was incorrect and that condition 1.2 and the description of the development approved should be amended. Consequently, it was ordered that the word 'outbuilding' be substituted with 'pool house building'.
The application for review was allowed and the decision of the respondent varied.

Introduction

Kevin and Caroline Firkins (applicants), submitted a series of plans to the Town of Claremont (respondent or Council) for planning approval for alterations to an existing pool house at No 29 (Lot 50) Reserve Street, Claremont (subject land).
The single storey pool house, which was approved by the respondent in 2002, comprised one room, incorporating a sink and bar fridge plus a bathroom, with entrance gained from the enclosed pool area. The recent applications involved changing the roof line to include a loft, comprising a study and storage area.
The decision under review in this proceeding relates to the decision made by the respondent, at its meeting of 7 June 2011, granting planning approval for 'proposed pool house alterations to the Dwelling 'Single House' 'Outbuilding'', subject to six conditions and five advice notes. The only issue in dispute is condition 1.3, which reads as follows:
1.3In regard to condition 1.2, a Section 70A [of the Transfer of Land Act 1893 (WA)] being lodged on the title to advise future owners of the restricted use of the Dwelling Single House Outbuilding addition; all to the specification of the Town of Claremont solicitors and to the satisfaction of the Executive Manager Planning and Development.
For ease of reference, condition 1.2 states:
The outbuilding not to be used for the purposes of ancillary accommodation as defined by the Residential Design Codes[.]

Agreed facts

The matter proceeded on the basis of the following agreed facts:
2.1The [subject land] is situated at Lot 50 (SN 29) Reserve Street, Claremont.
2.2The applicant[s] did not make an Application for Ancillary Accommodation. (A single drawing (which had been prepared by others for use by the Applicant[s'] Designer) and which was attached to the initial Development Application as a whole, erroneously defined the pool house as, 'Brick and Galv Granny Flat'.)
2.3The Applicants subsequently corrected this error in various items of correspondence to the Respondent.
2.4The Respondent did not accept the Applicant's Submissions and continued to refer to this structure as 'Ancillary Accommodation'.
2.5'Ancillary Accommodation' is not a Use Class mentioned in Table 1 Land Use Table of the Respondent's Town Planning Scheme No 3 (TPS 3).
2.6Further, at Clause 10 of TPS 3, 'Ancillary Accommodation' is not a defined Use Class.
2.7At Clause 14(5) of the Respondent's Scheme, it is advised that, '… if a particular use is not mentioned in this list of Use Classes in Table No. 1 or is not included in the general terms of any of the Use Classes, that use shall be deemed to be prohibited'.
2.8As part of its consideration of the Application, the Respondent reviewed the Administration's report which advised inter alia, that 'The poolhouse is considered an outbuilding that is incidental to the single house. The Application is being presented to Council because[:]
•Variation to the requirements of the outbuilding['.]
2.9In its decision dated June 8, 2011 the Respondent included the term 'outbuilding' on three occasions.
2.10An 'outbuilding' is a specific structure defined pursuant to Clause 6.10.1 of the Residential Design Codes of WA (Rcodes).
2.11This is not an accurate description of [the] building as the material aspect of an 'outbuilding' is a space which is 'non habitable['.] The spaces within this pool house structure are able to be '… used for normal domestic activities that includes:
a bedroom, living room, lounge room, music room, sitting room, television room, kitchen, dining room, sewing room, study, playroom, sunroom, gymnasium, fully enclosed swimming pool or patio; but excludes
a bathroom, laundry, water closet, food storage pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes drying room, verandah [sic] and enclosed swimming pool and patio and other spaces of a specialised natures [sic] occupied neither frequently nor for extended periods.'
2.12The structure the subject of this Application for review is quite simply, an extension (albeit not attached) of the existing dwelling on [the] property.
2.13It is able to be used, '… for normal domestic activities…' and might be similar in character to a 'sunroom' or a 'gymnasium' or indeed, any of the other rooms defined as being (habitable) rooms capable of being used, '… for normal domestic activities …'.
2.14Further the space is not of a specialised nature and it is able to be occupied frequently and for extended periods.
2.15This Application therefore, is able to be described as being a proposal consistent with the definition of 'habitable room' and therefore, cannot be described as an 'out building'.

Issue

The parties agreed the following issue to be determined by the Tribunal in this proceeding:
[Whether] the Respondent's proposal to require the inclusion of a Section 70A notification (under the Transfer of Land Act 1893 (WA)) [is] reasonable in all of the circumstances of this proposal and of the Respondent's conditional approval of a proposed extension to the existing pool house at the rear of the subject land[.]
The Tribunal accepts the parties' agreed position that ancillary accommodation is a prohibited use under Town of Claremont Town Planning Scheme No 3 (TPS 3 or Scheme) for the following reasons. Firstly, as the parties correctly identified, ancillary accommodation is a use class not specifically listed in Table 1 - Land Use Table (Table 1) of TPS 3 and therefore satisfies the first leg of cl 14(5) of the Scheme; that is, a particular use not mentioned in the list of use classes in Table 1.
In accepting this, the Tribunal recognises that at the time of gazettal of TPS 3 (1999), it was established in planning law that ancillary accommodation was available as a land use classification (see, for example, cl 1.3.1 of the Residential Planning Codes of Western Australian (1991) Interpretations ancillary accommodation) and therefore could have been included in Table 1 as a specific use class.
Secondly, ancillary accommodation cannot be said to be included in the general terms of any of the land use classifications identified in Table 1, thereby satisfying the second leg of cl 14(5) of the Scheme; that is, '… is not included in the general terms of any of the Use Classes …'.
In considering this question, the Tribunal contemplated the use class 'Dwelling (Selfcontained)' and formed the view that ancillary accommodation could not be said to fall within this land use classification, as ancillary accommodation in itself is not a dwelling but rather living accommodation provided in combination with a dwelling.
It would appear that the purpose of condition 1.3 as submitted by the respondent is to 'serve to notify anyone with reason to view the certificate of title of the restriction on the use [as set out in condition 1.2 of the approval] of the pool house'.
The respondent argued that there are two tests that a condition regarding a s 70A notification, made pursuant to the Transfer of Land Act 1893 (WA) (TL Act), must satisfy to be a condition appropriate in its application, that being:
•[t]he matter dealt with needs to impose a continuing obligation that affects the use or enjoyment of the land; and
•[t]he circumstance that the notice reflects needs to be unusual.
The respondent submitted that the tests are met, as the condition proposes to inform of the restrictions of the use of the pool house which will affect the use or enjoyment of the land, and a reasonable person may wrongly interpret the building to be ancillary accommodation and, therefore, given the unusual circumstance, it is reasonable to impose such a condition.
This Tribunal, and the former Town Planning Appeal Tribunal, have considered the issue of s 70A notifications made pursuant to the TL Act in a number of decisions: (see Compliance Admin Services Pty Ltd v Town of Claremont (2004) 37 SR (WA) 28; Antonas and Town of Vincent (2006) 45 SR (WA) 327 (Antonas); Miragliotta and Town of Vincent [2008] WASAT 207 (Miragliotta); L R Archibald & Co Pty Ltd and Western Australian Planning Commission [2010] WASAT 129).
Section 70A of the TL Act provides, in part, as follows:
Record on title of factors affecting use and enjoyment of land
(1)Where, in relation to land under the operation of this Act
(a)the local government of the district in which the land is situated; or
(b)a public authority,
considers it desirable that proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land, the local government or the public authority may, on payment of the prescribed fee, cause a notification of the factor to be prepared in an approved form and lodged with the Registrar.
(2) Where
(a)a notification is lodged under subsection (1); and
(b)the written consent of the proprietor of the land accompanies the notification,
the Registrar shall endorse the certificate of title for the land to that effect.
…
The Tribunal does not consider condition 1.3, in the circumstance of this case, to have a proper planning purpose, and is not reasonable or appropriate. The Tribunal has consistently held that notifications should not be used as a substitute for, or amplification of, other matters, such as development constraints and controls found normally in town planning schemes. Condition 1.3 does no more than recall on title one of the land use classifications prohibited in the Residential zone under TPS 3. As was said in Miragliotta '[b]y its terms the condition seeks to impose legal obligations through notification on title under s 70A of the TL Act, whereas s 70A is concerned solely with notification of factors affecting the use or enjoyment of land, not the imposition of legal obligations'. Should a compliance issue arise in the use of the building, remedy is available under the applicable planning instrument.
In contrast, the Tribunal in Antonas found that '[i]n circumstances where a condition of development approval imposes a continuing obligation on the owner or occupier for the time being of the land, which affects the use or enjoyment of the land, and is unusual, it may be appropriate to impose a further condition requiring the proponent to provide written consent to the local government to the notification of the terms of the condition on the title under s 70 A of the TL Act'. However, condition 1.2 is not such a condition as it does not impose a relevantly continuing obligation relating to the approved use which affects the use or enjoyment of the land, but serves only to identify a particular alternate use to which the building cannot be used. Therefore, Antonas is of no assistance to the respondent.
With respect to condition 1.2, as agreed in the facts of this case, the classification of the structure as an outbuilding is incorrect. Although condition 1.2 was not identified as a condition in dispute, the Tribunal considers that the wording of the condition should be amended to properly reflect the characteristics of the structure, as should the description of the development approved. Consequently, the word 'outbuilding' should be substituted with 'pool house building'. There may also have been an argument as to whether such a condition should be imposed as a condition of approval, given that ancillary accommodation is a prohibited use in the Residential zone under TPS 3. However, as condition 1.2 was not identified as a condition in dispute in the review of the matter, the Tribunal does not intend to consider or express findings in respect to the appropriateness of this condition.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent, made on 8 June 2011, granting planning approval for the proposed pool house alterations to the dwelling 'Single House' 'Outbuilding' situated at No 29 (Lot 50) Reserve Street, Claremont, is varied as follows:
(i)the word 'outbuilding' in the description of the development approved is substituted with the words 'pool house building';
(ii)the word 'outbuilding' in condition 1.2 is substituted with the words 'pool house building'; and
(iii) condition 1.3 is deleted.

I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER