Glenbrook Nominees Pty Ltd and City Of Perth

[2009] WASAT 3

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   GLENBROOK NOMINEES PTY LTD and CITY OF PERTH [2009] WASAT 3

MEMBER:   MR M SPILLANE (MEMBER)

HEARD:   29 AUGUST 2008

DELIVERED          :   13 JANUARY 2009

FILE NO/S:   DR 134 of 2008

BETWEEN:   GLENBROOK NOMINEES PTY LTD

Applicant

AND

CITY OF PERTH
Respondent

Catchwords:

Town planning - Local government direction - Preliminary issue - Whether installation of airconditioning unit is 'development' - Whether signature of owner of land is necessary - Development in airspace - Owner of airspace - Land to which the application relates

Legislation:

City of Perth City Planning Scheme No 2, cl 6, cl 36, cl 36(1), cl 36(2), cl 37, cl 38, cl 39, cl 39(a), Sch 4
Heritage of Western Australia Act 1990 (WA), s 59
Planning and Development Act 2005 (WA), s 4, s 4(1), s 214, s 214(3)
State Administrative Tribunal Act 2004 (WA), s 29(3)

Result:

The question 'is the installation of the airconditioning unit at the rear of No 40 ­ 44 (Lot 10) King Street, Perth (but located on No 48 (Lot 12) King Street, Perth) 'development' pursuant to CPS 2?' is answered in the affirmative
The question 'is the application for retrospective planning approval lodged by the applicant a valid application under CPS 2 is answered in the negative
The additional part of the question 'does the application require the signature of the owner of the adjacent Lot 12 upon which the airconditioning unit is located?' is answered in the affirmative

Category:    B

Representation:

Counsel:

Applicant:     Mr T Galic

Respondent:     Dr S Willey

Solicitors:

Applicant:     Galic & Co

Respondent:     Minter Ellison

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

Adbooth Pty Ltd and City of Perth [2006] WASAT 343

Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd (1987) 284 EG 625

Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464

Claude Neon Ltd v City of Perth & Metropolitan Region Planning Authority [1983] WAR 147

Daniele v Shire of Swan (1998) 20 WAR 164

Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490; (1989) Aust Torts Reports 80 ­ 269

MBF Sealink Pty Ltd v Matthews (1993) 80 LGERA 437

Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485

Randall and Town of Vincent [2005] WASAT 129

Reilly v Booth (1890) 44 Ch D 12

Smith and City of Fremantle [2007] WASAT 153

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

Wheeldon v Burrows (1879) 12 Ch D 31

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Glenbrook Holdings Pty Ltd installed an airconditioning unit at the rear of Lot 10 (No 44 - 46) King Street, Perth.  The airconditioning unit protruded into the airspace of Lot 12 (No 48) King Street, Perth.

2. The City of Perth issued a direction to remove the airconditioning unit and Glenbrook Holdings Pty Ltd applied to the Tribunal to review that decision.

3. The City of Perth contended that the erection of the airconditioning unit was a development under the City of Perth Planning Scheme No 2 that required development approval and as the development (the airconditioning unit) was on Lot 12 the signature of the owner of Lot 12 was required on the development application.

4. Glenbrook Holdings Pty Ltd disagreed with both of those contentions and the Tribunal was asked to decide both matters as preliminary issues.

5. The Tribunal found that the erection of the airconditioning unit was a development that required planning approval and as the airconditioning unit was located in the airspace of Lot 12, it was for the purposes of the City of Perth Planning Scheme No 2 on Lot 12 and the signature of the owner of Lot 12 was required.

Factual background

1)Glenbrook Nominees Pty Ltd (applicant) owns the land known as Lot 10 on Diagram 34485, which is No 40 - 44 King Street, Perth (Lot 10) contained in Certificate of Title Volume 1482 Folio 203.

2)The applicant has attached the external part of an airconditioning unit (airconditioning unit) to the rear of Lot 10 but in the airspace overhanging Lot 12 being No 48 King Street, Perth (Lot 12).

3)Lot 12 is owned by Mr and Mrs LJ Sharp who object to the airconditioning unit overhanging their land.

4)Lot 10 is the holder of an easement being a right of carriageway over the portion of Lot 12 above which the airconditioning unit overhangs.  The details of the easement are set out in a Transfer registered with Landgate as document number A732199.  The easement was created in 1973 and provides the proprietor or proprietors of Lot 10 with:

... free and uninterrupted right from time to time and at all times hereafter and for all purposes to go return pass and repass with or without vehicles over the portion of the said Lot 12 ...

5)The airconditioning unit is visible from Wolfe Lane, a public right of way owned in fee simple by the City of Perth (respondent).

6)The airconditioning unit was installed in or about September 2007.  It weighs 455 kilograms, has a length of 1.99 metres, a height of 1.84 metres, a depth of 0.887 metres and the lower surface is approximately 4.2 metres above the ground.  It is supported by two steel struts 2 metres in length which are attached to the building on Lot 10 and extend into the airspace of Lot 12.

7)The respondent received a complaint regarding the airconditioning unit and contacted the applicant advising that the installation of the airconditioning unit was 'development' which required approval pursuant to cl 36 of the City of Perth Planning Scheme No 2 (CPS 2 or Scheme).

8)On 30 October 2007, the applicant applied to the respondent for retrospective planning approval for the airconditioning unit pursuant to cl 38 of CPS 2.

9)The application form was signed by the applicant, the owner of Lot 10.  The owners of Lot 12 did not sign the application form.

10)The respondent wrote to the applicant advising that, pursuant to cl 39 of CPS 2, the application was not valid without the signature of the owner of Lot 12.

11)The applicant wrote in reply and asserted that:

(a)it has legal rights of easements, by implication of law and also by necessity, to install the [airconditioning] unit on Lot 10 which extends into the airspace of Lot 12;

(b)it has asserted those rights in response to an allegation of trespass on Lot 12 by the owners of Lot 12 who, at this time, have not taken the matter further; and

(c)clause 39(a) of CPS 2 does not require the owners of Lot 12 to sign the application form ... .

12)On 1 April 2008, the respondent served a written direction pursuant to s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) on the applicant the details of which are:

City of Perth

Written direction pursuant to section 214(3) of the Planning and Development Act 2005 (WA)

TO:Glenbrook Nominees Pty Ltd

C/o 79 Beatrice Road

DALKIETH [sic]  WA  6009

BACKGROUND

1.Glenbrook Nominees Pty Ltd (Glenbrook) is the registered proprietor of 40 - 44 King Street, Perth being Lots 10 and 11 on Diagram 34485, the whole of the land comprised in certificate of title volume 1482 folio 203 (Lot 10).

2.Lot 10 is situated in the district of the City of Perth (City).

3.Glenbrook has erected an airconditioning unit (ACU) at the rear of the building on Lot 10.

4.The ACU is not located on Lot 10 but is located on adjoining Lot 12 (house number 48) King Street, Perth (Lot 12).

5.The ACU is 'development' such that it requires the planning approval of the City pursuant to clause 36 of the City's City Planning Scheme No 2 (CPS 2).

6.The ACU is not exempt from planning approval by reason of clause 37(a) of CPS 2.

7.On 30 October 2007 Glenbrook lodged an application with the City for retrospective planning approval for the ACU.

8.The application for retrospective planning approval was not signed by the owners of Lot 12.

9.Pursuant to clause 39(a) of CPS 2, an application for planning approval must be 'signed by the owner of the land to which the application relates'.

10.In this case, the application for planning approval for the ACU 'relates' to Lot 12.

11.By reason of clause 39(a) of CPS 2, in the absence of the consent of the owners of Lot 12, the application for planning approval is not valid.

12.Accordingly, the ACU is unauthorised development.

DIRECTIONS

Pursuant to section 214(3) of the Planning and Development Act 2005 (WA) (P&D Act), Glenbrook is directed, no later than 60 days after the service of this written direction on Glenbrook to:

1.pull down and remove the ACU (and the supporting struts and other associated works) from Lot 12; and.

2.restore Lot 12, as nearly as practicable, to its condition immediately before the ACU was erected, to the satisfaction of the City.

Notes

1.Pursuant to section 214(7) of the P&D Act, a person who fails to comply with a written dirction under section 214 is guilty of an offence. The penalty for offences under the P&D Act is, on conviction, a maximum fine of $50,000 and a daily penalty of $5,000 for continuing offences (section 233 of the P&D Act). Pursuant to section 40(5) of the Sentencing Act 1995, for corporations such as Glenbrook, the maximum can be up to five times higher (ie. $250,000).

2.Pursuant to section 215 of the P&D Act, if:

(a)Glenbrook fails to carry out the directions of this written notice within the time specified in the notice (i.e. 60 days); and

(b)either:

(i)Glenbrook has not sought a review under section 255 of the P&D Act; or

(ii)Glenbrook has sought a review under section 255 of the P&D Act, and such a review has confirmed or varied any direction in the notice, and Glenbrook fails to carry out the direction as confirmed or varied within the time specified by the State Administrative Tribunal,

then the City may itself execute the works the subject of direction, and if the City incurs expenses in doing so, the City may recover those expenses from Glenbrook as a debt due in a court of competent jurisdiction.

3.Pursuant to section 255 of the P&D Act, Glenbrook may apply to the State Administrative Tribunal for a review of the decision by the City to issue a direction under section 214 of the P&D Act.

PETER MONKS

DIRECTOR, PLANNING and DEVELOPMENT

CITY OF PERTH

Dated this 1^st Day April 2008

15)On 14 April 2008, the applicant lodged an application for review with the Tribunal in relation to the decision of the respondent to issue the direction pursuant to s 214(3) of the PD Act.

16)On 9 May 2008, the Tribunal ordered that preliminary issues be listed for hearing.

17)The parties initially filed four questions for determination by the Tribunal but at the hearing on 29 August 2008, the parties agreed that only two questions needed to be answered which are:

i)Is the installation of the airconditioning unit at the rear of No 40 ­ 44 (Lot 10) King Street, Perth (but located on No 48 (Lot 12) King Street, Perth) 'development' pursuant to CPS 2?; and

ii)Is the application for retrospective planning approval lodged by the applicant a valid application under CPS 2 or does the application require the signature of the owners of the adjacent Lot 12 upon which the airconditioning unit is located?

Question 1 - Is the installation of the airconditioning unit at the rear of No 40 ­ 44 (Lot 10) King Street, Perth (but located on No 48 (Lot 12) King Street, Perth) 'development' pursuant to CPS 2?

Applicant's submissions

1. The applicant filed three sets of written submissions and also made oral submissions on the day of hearing.  The Tribunal has received and considered all of the applicant's submissions in respect of the question some of which are:

   1)Whether an ACU falls within the definition and meaning of a 'development' under the PD Act would depend on:

   i)the visual impact of the ACU on the subject site; and

   ii)how it affects the heritage significance of the building, the place or streetscape.

   2)The facts in their case are:

   i)The Building is located on King Street, Perth which is a place where a Conservation order is made under Heritage of Western Australia Act 1990 (WA) (HWA Act).

   ii)The ACU is installed at the rear of the Building in a laneway where similar ACUs are located and is not all visible from King Street.

   iii)No work is done at all externally on the facade of the Building fronting King Street, Perth which affects its external appearance.

   3)Based on these facts, the ACU at the rear of the Building has no visual impact at all and does not alter the fabric of the building or impact on the visual amenity of King Street or have a negative impact on the architectural integrity of the building or affect the heritage significance of the building.

   4)The ACU is thus not a development as it does not fall within the definition and meaning of the word 'development' in the PD Act.

2. In dealing with this matter in oral submissions, counsel for the applicant stated in reference to CPS 2:

   ... That is to protect and enhance the health, safety and general welfare of the city's inhabitants in the social, physical and cultural environment and to ensure that the use and development of land is managed in an effective and efficient manner with a flexible framework.

   Dealing with the first of those, to protect and enhance the safety and general welfare, it was going to be my submission that on its face it's clear that the - it's erected with the two­metre - I don't know if they're actually two-metre - long steel struts simply to make it safe.  One wonders how else it could have been made safer.  Certainly it looks far more sturdy and safe, on a first-glance appearance, than some of the others in the vicinity.

   So we say that this case is capable of being decided.  The tribunal can actually decide this case by determining the threshold question in my client's favour that it's not a development and we say there is nothing and we make no bones about it.  We think the visual amenity impact considerations are a nonsense.  There's always going to be situations where at the back of a building there's going to be a need to erect airconditioning units ...

3. Part of the applicant's written submissions referred to heritage issues based on the fact that it understood an order under s 59 of the HWA Act had been made. However, at the hearing, the applicant acknowledged that no such order was in existence and that those arguments fell away.

Respondent's submissions

1. The respondent filed two sets of written submissions and also made oral submissions at the hearing some of which were:

   1)In Western Australia, there are two limbs to the concept of development in a town planning sense: (i) the physical development of land; and (ii) the use of land absent any physical development: University of Western Australia v City of Subiaco (1980) 52 LGRA 360 at 363 - 364 per Burt CJ. This is made apparent by cl 36(2) of CPS 2.

   2)In this case, the erection of the airconditioning unit at the rear of Lot 10 (but on Lot 12) is physical development as it involves the erection of structure attached to the building on Lot 10 and built over Lot 12.

   3)In Claude Neon Ltd v City of Perth & Metropolitan Region Planning Authority [1983] WAR 147, Pidgeon J of the Western Australian Supreme Court stated that the question of whether an advertising sign was 'development' in the sense described by Burt CJ in University of Western Australia v City of Subiaco is:

   '... dependent upon a finding of fact as to the degree of change of use or physical alteration to the land and it would include...an examination of the degree of permanence of the physical alteration.  It must be looked at subjectively having regard to the location of the land concerned and the area it is in.'

   4)In Daniele v Shire of Swan (1998) 20 WAR 164 Ipp J found (at 176) that the determination of what constitutes 'development' in a particular context is referable to the degree to which the act or activity will impact on the amenity of the locality.

   5)In Randall and Town of Vincent [2005] WASAT 129, the Tribunal determined (at [93]) that a purposive approach to the determination of whether a particular activity constitutes a 'use' of land for the purposes of the definition of 'development' in the PD Act is appropriate.

   6)The Tribunal's 'purposive approach' in determining whether a particular activity constitutes 'development' was more recently affirmed in Smith and City of Fremantle [2007] WASAT 153 (Smith) at [21].

   7)Clause 6 of CPS 2 states that the objectives of the scheme are to, inter alia:

   '...

   (c)protect and enhance the health, safety and general welfare of the City's inhabitants and the social, physical and cultural environment of the City;

   (d)to ensure that the use and development of land is managed in an effective and efficient manner within a flexible framework.

   ...'

   8)Having regard to the legal principles set out above, and the relevant facts in this case, the airconditioning unit located at the rear of Lot 10, but located on Lot 12, is development in a town planning sense for the following reasons:

   (a)it weighs in excess of 450 kilograms;

   (b)it is attached to the building on Lot 10 by 2 metre­long steel struts which represent a high degree of physical alteration to the land;

   (c)it is a substantial structure with dimensions of 1.99 metres (length), 1.84 metres (height) and 0.887 metres (depth) such that it is not so trivial that it would attract the 'de minimus' principle (see MBF Sealink Pty Ltd v Matthews (1993) 80 LGERA 437);

   (d)by reason of its size and scale, it impacts on the amenity of the general locality as it is highly visible from the public realm (Wolfe Lane).  Wolfe Lane is a right of way held in fee simple by the respondent and which the respondent is seeking to activate (by way of its Laneway Activation Project which commenced in 2007) so as to encourage more land uses to front and utilise the public space; and

   (e)by reason of its size and scale, it impacts specifically on the amenity of the owners of Lot 12 in that it is a substantial structure that has been erected on their property without their consent.  In this way, the placement of the airconditioning unit at the rear of Lot 10 (but on Lot 12) is not consistent with objective (c) of CPS 2 because the erection of airconditioning unit (without consent of the owners of Lot 12) has the potential to impact on the 'health, safety and general welfare' of the owners of Lot 12 by reason of its bulk and physical presence, its visual impact and the noise it generates.

   9)The legal authorities set out above confirm that the question of whether a particular structure is 'development' is always context dependent.  In this case, where a party erects a structure on another person's land without their consent (as is the case here) the threshold question of whether that particular activity is 'development' in a planning sense, such that a formal application should be made and the consent of the rightful owner obtained, should be relatively low.

Consideration of question 1

1. In addition to the parties' submissions, the Tribunal has also had the benefit of a view of the airconditioning unit insitu and photographs were also submitted.

2. The relevant planning scheme is City of Perth City Planning Scheme No 2 referred to throughout this decision as CPS 2.

1. Clause 36 of CPS 2 is headed 'Need for Planning Approval' and states:

   (1)A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by clause 37, without first having applied for and obtained planning approval.

   (2)To avoid any doubt, development for which planning approval is required includes both use (which is the subject of Part 2 of this Scheme) and development (which is the subject of Part 3), which includes demolition.

2. It was accepted at the hearing that no exemptions under cl 37 of CPS 2 applied in the present case.

3. Development is defined at Sch 4 of CPS 2 as:

   [H]as the same meaning as is given to it in the Act except that it also includes any advertisement;

4. The Act referred to is the PD Act and s 4(1) states:

   Development means the development or use of any land, including -

   (a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;

   (b)the carrying out on the land of any excavation or other works;

   (c)in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that -

   (i)is likely to change the character of that place or the external appearance of any building; or

   (ii)would constitute an irreversible alteration of the fabric of any building;

5. In dealing with a similar issue in the City of Fremantle in Smith, at [14] to [21], Senior Member Parry considered the law on the matter at length and concluded that a purposive approach should be adopted in the determination of whether a particular activity constitutes 'development' in the PD Act as incorporated into the Scheme in that case.

6. In Smith, at [21], the Tribunal found that the purpose of the Scheme in that case, included 'controlling land development' and 'promoting and safeguarding the health, safety, convenience and economic and general welfare of its inhabitants and the amenities of the district' and further found that it was clearly within the scope and purpose of that Scheme to regulate, by requiring the submission of a development application and its planning assessment, the installation of the airconditioning unit.

7. The Tribunal adopts and applies the same reasoning in this matter.

8. In the present case the airconditioning unit, although located at the rear of Lot 10, is clearly visible from Wolfe Lane which is a public thoroughfare which is part of a 'Laneway Activation Project' currently being undertaken by the respondent with a view to 'activating laneways to increase economic benefit and vitality within the City'.

9. Wolfe Lane is described as:

   Owned by the City of Perth, links towards King Street, good decoration and previously physically upgraded as a revitalisation project in 2003, with aspects of lighting, painted, street furniture and has restricted parking, Pierucci introduced boutiques and a café with alfresco on the lane, menswear shop over at the rear of the Arcade 800, all building blocks are in place to create a vibrant laneway.

10. Both from the photographs produced and the site inspection it was clear that the airconditioning unit is large and, as described earlier, weighs 455 kilograms, is located approximately 4.2 metres above the ground and protrudes approximately 0.887 metres out from the building and into the airspace of Lot 12.

11. The objectives and intentions of CPS 2 are, amongst other things, to control and guide development, and to protect and enhance the health, safety and general welfare of the City's inhabitants.

12. The Tribunal is satisfied for largely the same reasons as outlined in Smith that the airconditioning unit, in this case, by reason of its size and scale, its protrusion from the rear of the building and being clearly visible from a public thoroughfare which the local authority is attempting to improve, impacts on the amenity of the locality and for that reason alone is, in the words of Senior Member Parry, 'within the clear scope and purpose' of CPS 2 to regulate, by requiring the submission of a development application.

13. The Tribunal is also of the view that the proposal clearly impacts on the amenity of Lot 12 and is clearly inconsistent with the objectives of CPS 2 which are to protect and enhance the health, safety and general welfare of the owners of Lot 12.  Both of these findings result in the inescapable conclusion that the airconditioning unit is a development under CPS 2.

14. The Tribunal has reached this view without taking into account the placement of such a substantial structure on Lot 12 without the owners consent.

15. The first question therefore is answered in the affirmative and the Tribunal finds that the erection of the airconditioning unit is a development requiring approval under CPS 2.

Question 2 - Is the application for retrospective planning approval lodged by the applicant a valid application under CPS 2 or does the application require the signature of the owners of the adjacent Lot 12 upon which the airconditioning unit is located?

1. It is noted that this question has two parts both of which the Tribunal will answer.

Applicant submissions

1. The applicant's submissions raised a number of issues including ownership of the land and what is meant by the words 'the land to which the application relates'.

2. The applicant also argued that it had an easement which allowed it to place the airconditioning unit in the position it was erected and that apart from the registered easement granting a right of way it also had:

   i)An implied easement under what is known as the rule in Wheeldon v Burrows (1879) 12 Ch D 31 (Wheeldon v Burrows).

   ii)An easement of necessity; and

   iii)An easement created under the doctrine of derogation from grant.

3. The issue of easements will be dealt with later.  The applicant's submissions in respect of the other matters were:

   1)Clause 39 CPS 2 provides:

   An application is to:

   (a)be made in the form prescribed and is to be signed by the owner of the land to which the application relates.

   2)In the context of our case, the expression 'the land to which the application relates' could mean either:

   i)Both Lot 10 and Lot 12; or

   ii)Only Lot 10.

   3)The meaning of this expression has been decided in the High Court case on Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485 (Pioneer Concrete) to mean 'the land the subject of the application which is in fact made'.

   4)In the context of our case, this would unambiguously refer to the development of Lot 10 which is 'the land the subject of the application which is in fact made'.

   5)As no development application is made in respect of Lot 12, the expression 'the land to which the application relates' could not be referring to both Lot 10 and Lot 12.

   6)It is a question of fact whether 'the air­conditioning unit has been erected on Lot 12' and is therefore a development on Lot 12 and not Lot 10.

   7)The facts of the instant case shows that:

   (i)the airconditioning unit installed comprises internal structure and external structure;

   (ii)the internal structure comprises mainly ductings and those internal airconditioning units which are concealed in the ceiling of the building which sits on Lot 10;

   (iii)the external structure comprise one airconditioning unit which is supported by two steel struts attached to the building on Lot 10;

   (iv)the external structure sits on the airspace of Lot 12 but not on the ground of Lot 12.

   8)On these facts, it is the applicant's submission that the external structure of the airconditioning plant is not erected on Lot 12 and is not a development on Lot 12 for the following reasons:

   (i)The definition of 'development' in s 4 of PD Act states:

   'Development' means the development or use of any land including any erection, construction, alternation of or addition of any building or structure on the land.

   (ii)For the development to be on Lot 12 within the meaning of s 4 of PD Act, the external structure of the airconditioning plant must be either:

   (a)'an addition to the building on the land' Lot 12; or

   (b)a structure on the land of Lot 12.

   (iii)The facts show that the external structure is attached to the building on Lot 10 and not Lot 12.  There is no addition of any structure to the building on Lot 12.

   (iv)The facts also show the external structure is not erected on the ground of Lot 12.  It does not occupy any of the ground space of Lot 12.

   (v)The external structure sits on the airspace of Lot 12.

   (vi)The applicant has substantive rights to do so and it is in law known as an easement.

Respondent's submissions

1)In this case, the airconditioning unit has been erected on Lot 12 by the owner of Lot 10 without the consent of the owners of Lot 12.

2)Clause 39 of CPS 2 provides that an application for planning approval is to:

'(a)be made in the form prescribed in Schedule 7 and is to be signed by the owner of the land to which the application relates;

...'

3)CPS 2 provides that a planning application is to be 'signed by the owner of the land to which the application relates'.

4)The meaning of the term 'land to which the application relates' was considered by the Tribunal in Adbooth Pty Ltd and City of Perth [2006] WASAT 343 (Adbooth).

5)The relevant local planning scheme in Adbooth was CPS 2.

6)In Adbooth, the Tribunal found that Telstra's ownership of phone booths and pedestals located on the road reserve did not allow Telstra to apply for planning approval (for third party advertising on the booths/pedestals) pursuant to cl 39(a) of CPS 2.  The Tribunal found that the road reserve is owned by the Crown and an application for planning consent for a structure within the road reserve requires the Crown's consent (or the consent of an authorised agent).  Likewise, in this case, the applicant's ownership of the airconditioning unit is not sufficient to satisfy the requirements of cl 39(a) of CPS 2 where that unit is located on Lot 12.  The express consent of the owner of the 'land' (that is the owners of Lot 12) is required.

7)Accordingly, as a result of Adbooth , it is settled law that for an application for planning approval to be valid under CPS 2, it must be signed by the owner of the land on which the 'specific development' is proposed.  That is, the owner of the soil upon, below or above which the development is located.

8)The rights granted to the applicant by reason of the right of carriageway recorded on Landgate registered document number A732199 do not displace the effect of CPS 2 and the PD Act.  The right of carriageway is not a right to development land without first obtaining the requisite planning consent under CPS 2.

Consideration

1. Clause 39(a) of CPS 2 states:

   39FORM OF APPLICATION

   An application is to ­ 

   (a)be made in the form prescribed in Schedule 7 and is to be signed by the owner of the land or an agent authorised in writing for that purpose by the owner of the land to which the application relates;

2. Owner is defined in Sch 4 of CPS 2 as:

   in relation to any land includes the Crown in right of the State and Commonwealth and every person who jointly or severally, whether at law or in equity ­ 

   (a)is entitled to the land for any estate of fee simple in possession; or

   (b)is a person to whom the Crown has lawfully contracted to grant the fee simple of the land; or

   (c)is entitled to receive or is in receipt of, or if the lands were let to a tenant, would be entitled to receive the rents and profits, whether as a beneficial owner, trustee, mortgagee in possession or otherwise;

3. In Adbooth, the Tribunal, in dealing with the same definition in the same scheme, stated at [41]:

   The word 'owner' is a non-technical term and bears its natural and ordinary meaning of 'someone who owns; a proprietor':  The Macquarie Dictionary (Macquarie, 4th ed, (Sydney) 2005), page 1025.  A 'proprietor' is 'someone who has the exclusive right or title to something; an owner, as of property' (page 1140) …

4. And at [42] stated:

   … Having 'most of the powers that attend ownership' is not equivalent to ownership. …

5. The definition of 'land' as it appears in cl 39 of CPS 2 was also dealt with extensively in Adbooth at [23] ­ [29] and that reasoning is again adopted in this matter.

6. In particular, at [23] the Tribunal stated:

   The Tribunal considers that there are five textual indications which evidence a contrary intention to the application of the defined, extended meaning of 'land' in cl 39(a) of the Scheme and which suggest that the term refers to land in the sense of a topographical entity, whether at ground or as a stratum below or above ground.

7. At [26] - [27] of Adbooth, the Tribunal referred to the High Court's consideration of the meaning of the words 'the land to which that development relates' which is all but identical to the wording in cl 39, and stated:

   In North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, the High Court of Australia considered the meaning of the words 'the land to which that development relates' in s 77(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). Section 77(1) of the EPA Act provides as follows:

   A development application may be made only by:

   (a)the owner of the land to which that development application relates; or

   (b)any person, with the consent in writing of the owner of the land to which that development application relates.

   The Court held at 476 as follows:

   The context of section 77(1)(b) reveals the meaning of 'relates' in that paragraph. A development application seeks consent to a development that a person would otherwise be prohibited from carrying out by section 76(2). The prohibition contained in section 76(2) is against the carrying out of a 'development on land to which [a provision of an environmental planning instrument] applies'. Such a provision applies to particular parcels of land. A 'development' can be carried out only on a particular parcel. Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application 'relates' must therefore be the land on which the specified development is proposed to be carried out.

8. At [28], the Tribunal stated:

   Similarly, cl 36(1) of CPS 2 prohibits a person from beginning or continuing development of any land or building in the Scheme area, unless exempted, without first having applied for and obtained development approval.  Under both the EPA Act and the Scheme, a 'development' can be carried out only on a particular parcel and the prohibition is against the carrying out of a specific development on that parcel.  When a development application is made under CPS 2 for consent to a specific development, the land to which the application 'relates' is the land on which the specific development is proposed.

9. In the present case, an added question that must be answered is whether a development located in the airspace above Lot 12 but attached to Lot 10 requires the consent of the owner of Lot 12.

10. In Land Law, P Butt (5th ed, 2006) at para 202 under the heading 'The Concept of "Land"' states:

    The Oxford English Dictionary gives the primary meaning of 'land' as 'the solid portion of the earth's surface, as opposed to sea, water'.  This may accord with the term's everyday meaning, but it is not an adequate definition for legal purposes.  In law, 'land' not restricted to the earth's surface, but extends below and above the surface.  Nor is it confined to solids, but can encompass such things as gases and liquids.

    In its common law meaning, 'land' is any area of three-dimensional space.  Its position is identified by natural or imaginary points located by reference to the earth's surface.  This three­dimensional space may include the earth's surface, but it is not restricted to it.  It may be wholly above the surface or wholly below it.

11. At [209] under the heading 'Permanent Intrusions' the author states:

    Cases involving permanent intrusions into airspace are more consistent.  With one early exception, the decisions appear unanimous that permanent intrusions into the airspace above the surface of land can constitute a trespass.  So, for example, trespass occurs where telephone wires or advertising signs are placed in the airspace above the surface of land without the consent of the owner or tenant of the surface.

12. There have been a number of cases dealing with intrusions into airspace.  In respect of advertising signs which project into the airspace above another person's property, McNair J in Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334, held that there was a trespass in such circumstances.

13. The issue of boom cranes operating in the airspace overhead neighbouring land has also been an issue considered by the courts.

14. In Anchor Brewhouse Developments Ltd v Berkley House (Docklands Development) Ltd (1987) 284 EG 625, Scott J in allowing injunctive relief stated at 629:

    A landowner is entitled, as an attribute of his ownership of the land, to place structures on his land and thereby to reduce into actual possession the airspace above his land.  If an adjoining owner places a structure on his (the adjoining owner's) land that overhangs his neighbour's land, he thereby takes into his possession airspace to which his neighbour is entitled.  That, in my judgment, is trespass.  It does not depend upon any balancing of rights.

15. An Australian case in respect of this issue was LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490; (1989) Aust Torts Reports 80 ­ 269 (LJP Investments).

16. At 68,871, Hodgson J stated:

    I think the relevant test is not whether the incursion actually interferes with the occupier's actual use of land at the time, but whether it is of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to undertake.  Such a rule has the advantages stated by Griffiths J. in Skyviews in (1978) 1 Q.B. 479 at p. 486:

    'Adjoining owners then know where they stand:  they have no right to erect structures overhanging or passing over their neighbours' land and there is no room for argument whether they are thereby causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty.'

17. In Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 Bryson J in following LJP Investments stated at 468:

    A recent statement which I regard as appropriate to follow of the law relating to the matter before me was made by Hodgson J in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd [1989] Aust Torts Reports 80-269. In that judgment (at 68,870-68,872) his Honour reviewed the principal modern authorities on the subjects of the acts which constituted trespass and of the court's response by way of injunction or otherwise to such acts.

    If the defendants had chosen to heap their building materials on the ground surface or on the roof of the plaintiff's property, the case would not call for a second thought, but the distinguishing factor in this case is that the operations complained of are removed many meters above the ground and indeed many metres above the plaintiff's building, ...

    ...

    I think it is quite clear from the case law to which Hodgson J referred that the owner of freehold land has a perfectly legitimate interest to decide who will come on to his land, who will build encroachments there, who will stay off and on what terms he is prepared to give leave and licence whether on payment of money or on no terms whatever.

18. It is clear therefore, that the courts recognise an owners proprietary interest in the airspace above their land and as found by Senior Member Parry at [23] in Adbooth in dealing specifically with cl 39(a) of CPS 2.

    The Tribunal considers that there are five textual indications which evidence a contrary intention to the application of the defined, extended meaning of 'land' in cl 39(a) of the Scheme and which suggest that the term refers to land in the sense of a topographical entity, whether at ground or as a stratum below or above ground.  (Emphasis added)

1. In the present case, the Tribunal is satisfied that although the external part of the airconditioning unit defined throughout as 'the airconditioning unit' is attached to Lot 10, it is located in the stratum above Lot 12 at a height of 4.2 metres which in the words of Hodgson J in LJP Investments may interfere with the ordinary uses of Lot 12 which the owners of Lot 12 may see fit to undertake.

2. The airconditioning unit is therefore 'on' Lot 12, not Lot 10 and for the purposes of cl 39(a) of CPS 2 Lot 12 is the land to which the application in respect of the airconditioning unit relates and it is the owners of Lot 12, or their authorised agent, who must sign the application as required by cl 39 of CPS 2.

3. Clause 39 is drafted in mandatory form and as it requires the signature of the owner of Lot 12, without such signature, the application is not valid.

4. Apart from being a mandatory requirement of a statutory instrument, the necessity for requiring the authorisation of an owner of land on which a development is to take place would appear to be self­evident.  As stated by Murray J in Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71 (Pacesetter Homes) at [84] when dealing with an application for subdivision:

   In general terms, and in this case in particular, it seems to me to be important that an owner should not be deprived of its capacity to object to the subdivision or to express views about conditions upon which the State Planning Commission should grant approval.  The contribution by each owner and the circumstances in relation to the proprietary rights of that person may clearly affect the conditions upon which approval may be granted for related subdivision or of adjacent land in different ownership.  To have regard to those matters would be to act accordingly to substantial merits of the case.

5. The applicant also argued based on the High Court decision in Pioneer Concrete that an application for planning approval could only relate to one parcel of land, in this case Lot 10.

6. The Tribunal is of the view that Pioneer Concrete does not support such a proposition.

7. As submitted by the respondent, Pioneer Concrete focused on whether piecemeal applications that are dependant on each other to achieve an outcome was an appropriate way of proceeding towards getting all necessary approvals in place.

8. The High Court held that where the use is a single use; in that case, the quarrying and transport of material, a piecemeal series of applications is not permissible and all the land the subject of the application must form part of a single application.

9. Pioneer Concrete is no authority for the proposition that you can develop on another person's land without that person's consent.

10. In fact, having found that the airconditioning unit is located on Lot 12, Pioneer Concrete may well be authority for the proposition that, the airconditioning unit being located on Lot 12, Lot 12 must be included in any application by Lot 10.

11. It is noted, that although the airconditioning unit is located on Lot 12, it is attached to Lot 10 and the Tribunal makes no findings as to what consent may be necessary by the owner of Lot 12 in respect of any application for a development on Lot 12 which is proposed to be attached to Lot 10.

Easements

1. One of the principal arguments put forward by the applicant, for the proposition that the consent of the owner of Lot 12 was unnecessary, was that the applicant had the benefit of an easement over Lot 12 which entitled it to erect the airconditioning unit in the airspace of Lot 12, and therefore the respondent was not entitled to insist that the owner of Lot 12 consent to the erection of the airconditioning unit.

2. It is clear from the documents filed with the Tribunal that there is a registered easement over part of Lot 12 allowing the proprietors of Lot 10 at all times and for all purposes to go, return, pass and repass with or without vehicles over the portion of Lot 12 directly under where the airconditioning unit has been erected.

3. However, the purpose of that easement could not on any plain meaning be extended to allow the erection of something such as the airconditioning unit in question above the right of way.

4. As outlined earlier, the applicant contended, without producing evidence to support such contention that it was also entitled to various other types of easements over Lot 12 which gave it the right to erect the airconditioning unit in the airspace of Lot 12.

5. The types of easements the applicant argued it had were:

   i)An implied easement under what is known as the rule in Wheeldon v Burrows.

   ii)An easement of necessity; and

   iii)An easement created under the doctrine of derogation from grant.

6. Even if the applicant was entitled to such easements, this Tribunal does not have the jurisdiction to decide whether such easements exist, and no evidence was put before the Tribunal to show such easements exist.

7. If the applicant was the holder of any such easement, would that mean that under CPS 2 the signature of the 'owner' of the land to which the application relates, namely Lot 12 was not needed?

8. The answer to that must be no.  The signature of the owner is a mandatory requirement, and as outlined earlier, 'owner' in CPS 2 is clearly defined as being a person who:

   (a)is entitled to the land for any estate of fee simple in possession; or

   (b)is a person to whom the Crown has lawfully contracted to grant the fee simple of the land; or

   (c)is entitled to receive or is in receipt of, or if the lands were let to a tenant, would be entitled to receive the rents and profits, whether as a beneficial owner, trustee, mortgagee in possession or otherwise;

9. To be an owner pursuant to that definition, one clearly needs to have a proprietary interest in the land.  As Senior Member Parry stated in Adbooth at [41]:

   The word 'owner' is a non-technical term and bears its natural and ordinary meaning of 'someone who owns; a proprietor':  The Macquarie Dictionary (Macquarie, 4th ed, (Sydney) 2005), page 1025.  A 'proprietor' is 'someone who has the exclusive right or title to something; an owner, as of property' (page 1140) …

10. And at [42] stated:

    … Having 'most of the powers that attend ownership' is not equivalent to ownership. …

11. Bradbrook, MacCallum and Moore in Australian Property Law  (3rd ed, 2002) at 679 introduce easements by referring to the definition in Halsbury's Laws of England (4th ed) Vol 14 under the heading 'Easements and Profits à Prendre' which defines an easement as:

    A right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of its soil) or to prevent the owner of the other land from utilising his land in a particular manner.

12. Bradbrook and Neave in Easements and Restrictive Covenants in Australia (2nd ed, 2000) at 5, under the heading 'The right must not amount to exclusive use of the servient tenement' refer to the basic proposition expounded by Lopes LJ in Reilly v Booth (1890) 44 Ch D 12 at 26 where he stated:

    The exclusive unrestricted use of a piece of land, I take it, beyond all question passes the property or ownership in that land, and there is no easement known to the law which gives exclusive and unrestricted use of a piece of land.  It is not an easement in such a case; it is property that passes.

13. Peter Butt in Land Law (5th ed, 2006) at 427 stated:

    The right claimed as an easement must not be inconsistent with the proprietorship of possession of the servient land.  This is because an easement confers only limited rights of use; it confers no right to possession of the land over which it is exercised.

14. The definition of owner in CPS 2 does not include the holder of an easement.  Therefore, even if the applicant had an easement which would allow the erection of the airconditioning unit, they would still not come within the definition of 'owner' in CPS 2 and the signature of the owner of Lot 12, not the holder of an easement, would still be required for an application under cl 39(a) of CPS 2.

15. The applicant also submitted that cl 39(a) of CPS 2 and the PD Act do not remove the rights of an easement holder.

16. In the Tribunal's view, cl 39 of CPS 2 in no way attempts to remove or extinguish the rights of a holder of any easement; it simply states that if you are making an application for planning approval in respect of a particular parcel of land, then of the owner of that parcel of land needs to sign the application to make it a valid application.

17. The issue of whether the owner of Lot 10 is entitled to an easement which would allow the erection of an air conditioner in the airspace of Lot 12 is therefore largely irrelevant, as it is clear that a person with the benefit of an easement is not an 'owner' as defined in CPS 2 and it is the signature of the owner that is required by cl 39 as part of the statutory framework.

18. The answer to question 2 therefore, as to whether the application for retrospective planning approval lodged by the applicant was valid, is answered in the negative; and the additional part of the question as to whether the signature of the owner of Lot 12 is required is answered in the affirmative.

Conclusion

1. Having found that:

   1)The installation of the airconditioning unit at No 40 - 44 (Lot 10) King Street, Perth is a development; and

   2)That although the development is attached to Lot 10, it is located on Lot 12 and the signature of the owner of Lot 12 is required;

2. The Tribunal answers the questions as follows:

   1)The question 'is the installation of the airconditioning unit at the rear of No 40 ­ 44 (Lot 10) King Street, Perth (but located on No 48 (Lot 12) King Street, Perth) 'development' pursuant to CPS 2?' is answered in the affirmative;

   2)(i)         The question 'is the application for retrospective planning approval lodged by the applicant a valid application under CPS 2? is answered in the negative; and

   (ii)The additional part of the question 'does the application require the signature of the owners of the adjacent Lot 12 upon which the airconditioning unit is located?' is answered in the affirmative.

3. Having answered those questions, the application for review of the s 214 Direction dated 1 April 2008 will now need to be dealt with on its merits pursuant to s 29(3) of the State Administrative Tribunal Act 2004 (WA) and the matter will be listed for further directions to progress the matter to hearing.

Orders

1. The Tribunal makes the following orders:

   The questions put to the Tribunal are answered as follows:

   1.The question 'is the installation of the airconditioning unit at the rear of No 40 ­ 44 (Lot 10) King Street, Perth (but located on No 48 (Lot 12) King Street, Perth) 'development' pursuant to CPS 2?' is answered in the affirmative;

   2.(i)         The question 'is the application for retrospective planning approval lodged by the applicant a valid application under CPS 2? is answered in the negative; and

   (ii)The additional part of the question 'does the application require the signature of the owner of the adjacent Lot 12 upon which the airconditioning unit is located?' is answered in the affirmative.

   3.This matter is listed for further directions on 17 February 2009 at 10 am.

I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR M SPILLANE, MEMBER