Hay 263 Pty Ltd and Metropolitan West Joint Development Assessment Panel
[2013] WASAT 115
•23 JULY 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HAY 263 PTY LTD and METROPOLITAN WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2013] WASAT 115
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 23 MAY 2013
DELIVERED : 23 JULY 2013
FILE NO/S: DR 435 of 2012
MATTER :DR 435 of 2012
BETWEEN: HAY 263 PTY LTD
Applicant
AND
METROPOLITAN WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords:
Planning and development Development approval Variation of standards under town planning scheme Specific power to vary heights on certain lots within zone subject to maximum height of variation General power to vary standards Whether general power available
Legislation:
City of Subiaco Town Planning Scheme No 4, Pt 4 cl 28, cl 28(1), cl 28(3), Pt 5 Div 2, cl 42(1)(b), cl 42(4)(b), Pt 5 Div 3, cl 44(2), cl 45, Pt 5 Div 4, cl 48, Pt 5 Div 5, cl 51, Pt 5 Div 6, cl 53
Result:
Declaration as to construction of scheme made
Summary of Tribunal's decision:
The applicant applied for approval of a development the height of which exceeded the standards prescribed by the City of Subiaco Town Planning Scheme No 4. The City of Subiaco Town Planning Scheme No 4 contained a specific provision relating to height variations on certain lots within the relevant zone. It also provided a general power to vary requirements or standards for development under the City of Subiaco Town Planning Scheme No 4 subject to the satisfaction of certain criteria. The Council refused the proposed development.
On review before the Tribunal, the issue arose as to whether the specific provision relating to height variations within the relevant zone should be construed as a special power subject to limitations and qualifications which would exclude the exercise of the general power which is not subject to the same limitations. That question was argued as a preliminary issue.
The Tribunal considered the relevant provisions and concluded that the special power of variation excluded the exercise of the general power in relation to those lots which were specifically the subject of the specific power.
Category: B
Representation:
Counsel:
Applicant: Ms B Moharich
Respondent: Mr I Repper
Solicitors:
Applicant: Flint Moharich
Respondent: State Solicitor for Western Australia
Case(s) referred to in decision(s):
Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50
TTH 28 Pty Ltd and City of Subiaco [2008] WASAT 200
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant has applied for review of a decision of the respondent refusing to approve a proposed five storey mixed use development at 263 277 Hay Street and 17 - 19 Olive Street, Subiaco. The parties have identified a preliminary issue, namely whether a general power to approve developments which do not comply with a standard or requirement prescribed under the City of Subiaco Town Planning Scheme No 4 (TPS 4) is available in relation to building height standards in the zone in which the proposed development is located. The respondent contends that the general power is not available because there is a specific provision relating to variations in height in the relevant zone. That question turns on the proper construction of TPS 4, and whether the principle expressed in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 (Leon Fink) at 678 applies to the relevant provisions. That principle is expressed as follows:
It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.
The Proposal
For present purposes, all that needs to be said about the proposal is that the development is proposed on three lots which front Hay Street (Hay Street lots) and three lots (the Olive Street lots) which do not front Hay Street, Roberts Road or Rokeby Road. The height of the proposed development on Hay Street exceeds 12 metres overall height and 9 metres wall height, as defined in TPS 4. The height of the proposed development on the Olive Street lots also exceeds 12 metres overall height and 9 metres wall height.
The land is situated within the Commercial/Residential Zone for the purposes of TPS 4. The majority of lots in that zone have a frontage to Roberts Road, Rokeby Road and Hay Street but some do not. Most of the lots which do not front those roads adjoin lots which do.
As will be seen, if the power of variation found in the part of TPS 4 dealing with the Commercial/Residential Zone (cl 45(4)) is the only available power to vary height for the proposed development, the development would not be capable of approval. If however, the general power to vary development standards (cl 28) is available in relation to building heights in the Commercial/Residential Zone, the development could be approved if the necessary conditions are met.
Relevant provisions of TPS 4
Clause 28 is found within Pt 4 of TPS4 which deals with development approval generally. It provides:
DETERMINATION OF NON-COMPLYING APPLICATIONS
FOR DEVELOPMENT APPROVAL(1)Except for development in respect of which the Residential Planning Codes apply, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, despite the noncompliance, approve the application unconditionally or subject to such conditions as the Council thinks fit.
(2)Subject to subclause (3), the Council may refuse or approve a noncomplying application.
(3)The Council cannot grant development approval for a noncomplying application unless, if so required by the Council under clause 26, the application has been advertised and the Council is satisfied that:
(a)if approval were to be granted, the development would be consistent with:
(i)the orderly and proper planning of the locality;
(ii)the preservation of the amenity of the locality; and
(iii)the planning objectives of the particular zone and relevant precinct planning policies; and
(b)noncompliance would not have any undue adverse effect on:
(i)the occupiers or users of the development;
(ii)the property in, or the inhabitants of, the locality; or
(iii)the likely future development of the locality.
Part 5 Div 3 of TPS 4 deals with the aims and objectives of, and development of standards within, the Commercial/Residential Zone. Clause 45 deals with development standards within that zone, and relevantly provides:
DEVELOPMENT STANDARDS
Development should have due regard to the relevant planning policies contained in the Planning Policy Manual. In addition, the following standards apply:
…
(4)Building Height:
(a)In the Commercial/Residential Zone the height of a building shall not exceed 9 metres overall height and 6 metres wall;
(b)The Council may permit a variation to subclause (a) and permit buildings of up to 12 metres overall height and 9 metres wall height on lots fronting Hay Street, Roberts Road or Rokeby Road, where Council is satisfied that there is to be no undue adverse impact on the adjoining sites, streetscape or the amenity of the locality in general.
…
The issue of building height is addressed in a number of other divisions of Pt 5 of TPS 4, each division dealing with a different zone. In relation to the Residential Zone, cl 42(1)(b) permits variations in height, to a prescribed maximum, within areas where the residential density code is R15 and R20. Clause 42(4)(b) contains a similar provision relating to the area within the Residential Zone with an R Code density of R80.
Clause 48, which is found within Pt 5 Div 4 dealing with the Local Centre Zone, specifies a maximum building height, and contains a provision permitting a variation of that maximum up to a specified height 'where the Council is satisfied that there is to be no undue adverse impact on the adjoining sites, streetscape or the amenity of the locality'. Similar provisions are found in Pt 5 Div 5, cl 51 dealing with the Neighbourhood Mixed Use Zone.
The provision relating to building heights found in cl 53 in Pt 5 Div 6, dealing with the Town Centre Zone, specifies maximum heights, but contains no provision for variation of those maxima.
The respondent's arguments
The respondent relies upon the decision of the Tribunal in Crystal Lakes Pty Ltd and City of Subiaco [2006] WASAT 15 (Crystal Lakes) where the Tribunal, applying the principle expressed in LeonFink, held that the general power under cl 28(1) of TPS 4 was not available to vary maximum heights in the Residential Zone because of special power provided by cl 42(1)(b). The Tribunal said at [55]:
The principle of interpretation stated by Mason J in Leon Fink v Australian Film Commission has the consequence contended by Mr Tsaknis. The maximum building heights prescribed by the Scheme in relation to land zoned 'Residential' and coded 'R15' or 'R20' are the heights stated in cl 42(1)(a), not in cl 42(1)(b). The heights referred to in the latter subclause form part of the limitations and qualifications to the special power to vary the building heights prescribed by the former. The maximum possible building heights on land zoned 'Residential' and coded 'R15' or 'R20' under the Scheme, therefore, are 9.0 metres overall height and 6.0 metres wall height.
The respondent submits that there is no relevant difference between the provisions of cl 42(1) of TPS 4 considered in CrystalLakes and the provisions of cl 45(4) which are relevant to the present proceedings.
The respondent notes that in TTH 28 Pty Ltd and City of Subiaco [2008] WASAT 200 (TTH 28 Pty Ltd) , the Tribunal proceeded on the basis that the discretion available under cl 28 of TPS 4 was available in order to approve a development within the Commercial/Residential Zone that exceeded the heights referred to in cl 45(4)(b). It submits, however, that the decision in CrystalLakes was not referred to in that decision and it does not appear to have been brought to the Tribunal's attention. Nor were the principles set out in LeonFink considered by the Tribunal. The respondent contends that the heights referred to in cl 45(4)(b) form part of the 'limitations and qualifications' in the sense referred to in Leon Fink, of the special power to vary the height specified by cl 45(4)(a).
The respondent contends that cl 45(4)(b) should not be construed as prescribing a building height development standard for sites in the zone. Rather, it submits that the purpose of cl 45(4)(b) is to provide the discretion to approve development in excess of the maximum prescribed heights (found in cl 45(4)(a)) but only within the specified limitations. That construction is said to be supported by the objects of the Commercial/Residential Zone, and in particular the objective found in cl 44(2) which is 'to encourage smalltomedium scale mixeduse development of a type and character appropriate to Hay Street east and Rokeby Road south areas'.
The applicant's contentions
The applicant contends that the principle outlined in LeonFink has no application to the present circumstances, on the basis that the powers under cl 28 and cl 45(4) of TPS 4 do not deal with the same subject matter. It contends that cl 45(4) merely identifies the applicable standards. There is a standard of up to 9 metres height overall and 6 metres wall height (cl 45(4)(a)) or, where Council is relevantly satisfied as to the impact, up to 12 metres overall height and 9 metres wall height on lots fronting Hay Street, Roberts Road or Rokeby Road. Thus, it argues, proposals which meet either of those standards are not 'noncomplying applications' because they comply with either cl 45(4)(a) or cl 45(4)(b). It is, the applicant contends, only applications which do not comply with cl 45(4)(b) (such as the present application) which can be described as 'noncomplying applications' and which thus enliven the discretion under cl 28 of TPS 4.
In support of those contentions, the applicant relies upon the decision of Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, a case dealing with whether the power to cancel a visa in s 501(2) of the Migration Act 1958 (Cth) was restricted by the powers to deport in s 200 and s 201. In particular, it relies on the passage from the judgment of Gleeson CJ at [2] where his Honour said:
… The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said. … .
Gummow and Hayne JJ said at [59]:
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject-matter, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
The applicant contends that the power in cl 28 is distinct from the power in cl 45(4)(b). The latter involves a less onerous test to satisfy what the applicant described as a 'compliant variation'.
The applicant also submits that a construction which limits height variations in the Commercial/Residential Zone only to those permissible under cl 45(4)(b) leads to absurd consequences in relation to potential height of developments in the Commercial/Residential Zone as against developments on adjoining residentially zoned land, and in relation to the higher plot ratio standards applied in the Commercial/Residential Zone as compared with plot ration standards in other zones where greater height might be permissible.
Is cl 28 of TPS 4 available?
In my view, the rationale applied by the Tribunal in CrystalLakes is applicable to the construction of cl 45(4) and cl 28 of TPS 4, and the principle expressed in LeonFink is applicable so as to confine the discretion to vary the height of buildings fronting Hay Street, Roberts Road and Rokeby Road to that provided for in cl 45(4)(b). It is not open to Council to approve a variation to the heights provided for in cl 45(4)(a) beyond the maximum heights specified in cl 45(4)(b). To the extent that TTH 28 Pty Ltd proceeded on a different basis, I do not consider that it was correct. It would, of course, have made no difference to the outcome in TTH 28 Pty Ltd, where the proposed variation was refused on the merits.
Clause 45(4)(b) cannot be construed of prescribing a standard. The use of the words 'may permit a variation' indicates that the clause is addressing the capacity of Council to approve a development which does not comply with the height standard specified in cl 45(4)(a). It is the provision of a special power to deal with height, at least in relation to lots fronting the three named roads, within the Commercial/Residential Zone. The provisions in the present case cannot be described as two separate sources of power to deal with different circumstances. The treatment of cl 45(4)(b) as the exclusive power to deal with height on Hay Street, Rokeby Road and Roberts Road is consistent with the aim and objective of the zone described in cl 44(2).
I accept that the fact that cl 45(4)(b) deals only with lots fronting Hay Street, Roberts Road and Rokeby Road creates some uncertainty as to the position in relation to variation in heights above the standard in those lots which do not front those roads. A literal reading of cl 45(4)(b) leads to a conclusion that Pt 5 Div 3 is silent as to variation of the height standard in cl 45(4)(a) so far as it applies to lots within the Commercial/Residential Zone not fronting Hay Street, Roberts Road or Rokeby Road. That construction has the consequence that cl 28 would be available to vary the height standard in relation to such lots.
Clause 44(2) of TPS 4 identifies the aim of encouraging 'development of a type and character appropriate to Hay Street east and Rokeby Road south areas'. The focus on Hay Street east and Rokeby Road provides a context in which the limitation on permissible height variations (provided in cl 45(2)(b)) can be understood, and explains why the limitation on variation is confined to lots fronting those two roads (and Roberts Road). In my view, the ambit of the specific provision in relation to height variations found in cl 45(4)(b) is limited to lots fronting Hay Street, Roberts Road or Rokeby Road. Because cl 45(4) is silent in relation to variations on lots within the Commercial/Residential Zone which do not front those roads, the discretion under cl 28 is available in relation to those lots. Although that might potentially result (at least in theory) in higher buildings not fronting those roads, that is a result which is not necessarily inconsistent with the preservation of the scale and character appropriate to Hay Street east and Rokeby Road, since higher buildings set back at least one block from those main roads may not interfere with the scale and character of those roads.
I do not accept that the construction of cl 45(4) of TPS 4 leads to absurd results having regard to permissible height variations and plot ratio in adjoining zones. The applicant seeks to illustrate that absurdity by reference to the position in the residentially zoned areas coded R50 compared with the land zoned commercial/residential. The residential land coded R50 is not subject to any limitation on the capacity to vary heights, the discretion to vary under cl 28 being available in relation to those areas. The applicant argues that it would be absurd to have an unlimited capacity to vary height on the residentially zoned land, but the capacity to vary on the commercial/residential zoned land limited to 12 metres overall height and 9 metres wall height. Two things can be said about that argument. The first is that many of the lots immediately opposite the residential R50 land are not lots which front Hay Street. Thus, discretion under cl 28 is available in respect of those lots as it is in relation to the R50 lots. The second is that a large proportion of the residentially zoned land which adjoins the Commercial/Residential Zone is coded R20, and is subject to a maximum permissible varied height of 9 metres overall height or 6 metres wall height. That is a lesser height in the residential areas than available in the commercial/residential area. There is no absurdity in that result.
The applicant also argued that the different plot ratio designations for different zones provide a context which suggests that the construction of TPS 4 argued for by the respondent could not have been intended. That argument appears to be based on the proposition that development on lots not fronting Hay Street, Roberts Road or Rokeby Road were necessarily limited to the heights provided for in cl 45(4)(a). I have found that not to be the case, and accordingly the basis of the applicant's argument based on plot ratio falls away.
Conclusion
For those reasons, I find that a development on a lot fronting Hay Street, Roberts Road and Rokeby Road within the Commercial/Residential Zone under TPS 4 involving more than 12 metres overall height and 9 metres wall height is not capable of approval under cl 28 of TPS 4. A proposed development within that zone on a lot not fronting Hay Street, Roberts Road or Rokeby Road which involves a height exceeding 9 metres overall and 6 metres wall height is susceptible to variation under cl 28 of TPS 4 provided it satisfies the requirements of cl 28(3).
Although the unlimited discretion (other than satisfaction of the criteria) under cl 28 is available for lots not fronting Hay Street, Roberts Road or Rokeby Road, the height limit which applies in relation to lots which do front those roads may well be a factor which influences whether the decisionmaker applying cl 28 is satisfied of the criteria set out in cl 28(3) of TPS 4. That is, however, a matter which will turn on the individual merits of each application.
On the basis of the agreed facts, the proposed development is not capable of approval since it exceeds 12 metres overall height and 9 metres wall height on the Hay Street lots. The probable consequence of this decision is that the application should be dismissed. It would seem unlikely that the proposed development is capable of amendment to render it capable of approval, but rather than make an order dismissing the application, the matter should be adjourned to a directions hearing in order to enable the parties to consider these reasons and to seek orders on the basis of these reasons. If there is agreement as to the dismissal of the application, the parties can file a minute to that effect and orders can be made accordingly.
Orders
1.It is declared that:
(a)Clause 28 of the City of Subiaco Town Planning Scheme No 4 does not permit a variation of the height of a building in the Commercial/Residential Zone in respect to lots fronting Hay Street, Roberts Road or Rokeby Road (variations of which are governed solely by cl 45(4)(b));
(b)Clause 28 of the City of Subiaco Town Planning Scheme No 4 does apply to allow variation of height limits specified in cl 45(4)(a) of the City of Subiaco Town Planning Scheme No 4 in relation to lots which are within the Commercial/Residential Zone but do not front Hay Street, Roberts Street or Rokeby Road.
2.The matter is adjourned for directions at 11.30am on 2 August 2013 in order to make further orders, unless consent orders are filed in the meantime.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
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