HILL and CITY OF SUBIACO - [2013] WASAT 203

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HILL and CITY OF SUBIACO [2013] WASAT 203

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 17 DECEMBER 2013

FILE NO/S: DR 332 of 2013

BETWEEN: STEPHEN GREGORY HILL
Applicant
AND
CITY OF SUBIACO
Respondent

Catchwords:

Town planning - Development application - Alterations and additions to house built in 1917 - Site comprises two lots - House straddles lots - Condition requiring amalgamation of lots - Whether condition can lawfully be imposed - Whether condition is for a planning purpose - Whether condition reasonably and fairly relates to proposed development - Whether condition is manifestly unreasonable - Whether imposition of condition is reasonable and appropriate in exercise of planning discretion

Legislation:

City of Subiaco Town Planning Scheme No 4, cl 7(g), cl 22, cl 23(1)(l), cl 27, cl 30(1), cl 37(1), cl 37(2), cl 59, cl 59(1), cl 59(3), Sch 1
Planning and Development Act 2005 (WA), s 4(1), s 244, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 87(2), s 87(4)
State Planning Policy 3.1 Residential Design Codes, cl 5.1.1 C1.1, cl 5.1.1 C1.4iii

Result:

Condition requiring amalagation of lots deleted

Summary of Tribunal's decision:

Since it was constructed in about 1917, a house has straddled two adjoining lots. When, in August 2013, the City of Subiaco granted development approval for alterations and additions to the house, the City imposed a condition requiring the amalgamation of the lots. The joint owner of the property challenged this condition on review.
The Tribunal determined that the disputed condition cannot lawfully be imposed, because it does not fairly and reasonably relate to the approved development. The condition does not fairly and reasonably relate to the approved development, because the alterations and additions are relatively minor, when viewed in the context of the existing house and outbuildings, and do not affect or alter the land use or the essential historic form or function of the development on the site.
The Tribunal also determined that, even if the disputed condition could lawfully be imposed, it should not be imposed in the exercise of planning discretion, because the alterations and additions are relatively minor and do not affect or alter the land use or the essential historic form or function of the development on the site and because the planning purposes served by the condition do not warrant its imposition in the circumstances of the case. In particular, having regard to the historical and current planning circumstances of the site, amalgamation of the lots is not necessary to ensure that the development remains a single entity, and amalgamation of the lots is not necessary to accord with the general subdivision pattern in the immediate locality of the site.
The application for review was therefore allowed and the condition requiring amalgamation of the lots was deleted.

Category: B

Representation:

Counsel:

Applicant: Mr E Samec
Respondent: Mr A Roberts

Solicitors:

Applicant: Samec Legal
Respondent: McLeods

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

Kellett and Town of Vincent [2007] WASAT 155
Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374; (2006) 48 SR (WA) 149
Parker and City of South Perth [2010] WASAT 35

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Number 25 Kershaw Street, Subiaco (site) comprises Lot 148 and Lot 299 (formerly Pt Lot 147) on Plan 504. Lot 148 has an area of 319m² and Lot 299 has an area of 182m².
In about 1917, a single storey brick and tile house was constructed straddling the interallotment boundary of the two lots comprising the site. Most of the house is on Lot 148 and a smaller section, with a width of approximately 2.2 metres, is on Lot 299. The house has not been materially altered since it was constructed.
The site also contains a workshop, driveway and garage on Lot 299, a tool shed on Lot 148, and an external toilet built partly on each lot.
The site has been owned by members of the Hill family since January 1919 when it was purchased by the current joint owner Mr Stephen Hill's grandmother. In June 2013, Mr Hill lodged a development application with the City of Subiaco (City or Council) for development approval under the City of Subiaco Town Planning Scheme No 4 (TPS 4) for alterations and additions to the house and outbuildings on the site comprising the following four elements:
(i)an approximately 28m² extension to the northwest of the house containing a family room, laundry and toilet (on Lot 148);
(ii)an approximately 1.2m² extension of the garage located in the southwest corner of the site (on Lot 299);
(iii)an approximately 5.5m² extension of the workshop in the western part of the site (on Lot 299); and
(iv)a new carport of approximately 19m² over the existing driveway to the east of the garage (on Lot 299).
On 15 August 2013, the City, by its delegate, granted development approval for the proposed alterations and additions, subject to three conditions, the third of which states as follows:
3.Prior to occupation or at such time as agreed by the City of Subiaco via the use of a legal agreement between the land owner(s) and the City of Subiaco, Lot(s) 147 [sic - Lot 299] and 148 on Plan 504 are to be amalgamated into one lot. Should a legal agreement be required, it is to be prepared by the City of Subiaco's solicitors with any legal or other associated fees being at the land owner's expense.
On 12 September 2013, Mr Hill sought review by the Tribunal of the City's decision to grant conditional development approval under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). In particular, Mr Hill challenges condition 3 of the development approval, contending that the condition cannot lawfully be imposed and that it is unreasonable and inappropriate. In contrast, the City contends that the disputed condition can and should be endorsed by the Tribunal on review.
The issues for determination in this review are:
1)Whether condition 3 can lawfully be imposed on the grant of development approval for the proposed alterations and additions; and
2)If condition 3 can lawfully be imposed, whether it is reasonable and appropriate to impose the condition in the exercise of planning discretion in the circumstances of the case.
I will address these issues in turn after referring to the applicable planning framework.

Planning framework

The site is zoned Residential with a residential density coding of R20 under TPS 4. The general planning objectives of TPS 4 include:
to promote and safeguard the special character and cultural heritage of the City by:
i)identifying, conserving and enhancing those places which are of significance to the City's cultural heritage;
ii)encouraging development that is in harmony with the cultural heritage value of an area; and
iii)promoting public awareness of cultural heritage generally. (Clause 7(g) of TPS 4)
Clause 22 of TPS 4 requires prior development approval for all 'development' other than exempted development specified in cl 23. Schedule 1 of TPS 4 states that the term 'development' has the meaning given to it in the PD Act. 'Development' is defined in s 4(1) of the PD Act to include 'any demolition … of … any building or structure on the land'. Although under cl 23(1)(l) of TPS 4, demolition of an outbuilding is exempt from development approval in certain circumstances, partial or complete demolition of the house on the site requires prior development approval of the Council under TPS 4.
Clause 30(1) of TPS 4 states that, in considering an application for or involving demolition, the Council is to have regard to matters listed in cl 27 of TPS 4 which include:
(a)the provisions of this Scheme and of any written law applying within the Scheme area including the Metropolitan Region Scheme;
(b)any relevant planning policies;
…
(f)the orderly and proper planning of the locality;
(g)the conservation of the amenity of the locality; and
(h)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure;
(i)the conservation of places and areas of cultural heritage significance as referred to in clauses 58 and 59.
Clause 37(1) of TPS 4 states that the Scheme area is divided into precincts. Clause 37(2) of TPS 4 states that there is a precinct planning policy for each precinct. The site is located within the Triangle Precinct (Precinct) under TPS 4 which precinct derives its name from its shape.
The Triangle Precinct Policy (Precinct Policy), which was adopted by the Council in 1999, describes the Precinct as 'a highly cohesive, inner urban residential area' which 'represents an excellent example of the "classic" Subiaco residential character with high quality Federation style houses on small lots set in intimate streetscapes'. The Precinct Policy states that '[t]he original Gold Boom period pattern of development, of small narrow lots (350 - 500 square metres), short front set backs of 3 - 5 metres, low fences and rear lane ways, remains largely intact' and that '[r]esidences are generally single storey houses on single lots …'. The Precinct Policy notes that the area bounded by Hamersley, Heytesbury, Rokeby and Townshend Roads (which includes the site) 'has been identified as a Conservation Area and contains many National Trust listed properties'. The Precinct Policy states the following in relation to 'Desired Future Character':
The primary nature of the Precinct is as a residential area of significant heritage character which should be reinforced. The retention and renovation of the Gold Boom and Interwar housing stock should be promoted and encouraged.
Clause 59(1) of TPS 4 states as follows:
If, in the opinion of the Council, it is necessary or appropriate to have special planning controls to conserve or enhance the cultural heritage significance of an area, the Council may, by resolution, declare that area to be a conservation area.
At its meeting on 20 February 2013, the Council declared Kershaw Street as a conservation area under cl 59(1) of TPS 4. Under cl 59(3) of TPS 4, a planning policy for the Kershaw Street Heritage Conservation Area was due to be presented to the City's Development Services Committee and subsequently to the Council for adoption in November 2013.

Can condition 3 lawfully be imposed?

As was observed in Lavenda Pty Ltd & Anor and Town of Vincent [2006] WASAT 374; (2006) 48 SR (WA) 149 at [14]:
In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
'A condition attached to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.'
These are the three so-called 'Newbury tests' for the validity of a condition of planning approval.
Mr A Roberts, counsel for the City, submits that condition 3 satisfies the first Newbury test - that the condition is for a planning purpose - for the following reasons:
A planning purpose served by condition 3 is that recognised in Parker and City of South Perth, namely to ensure that the house, garage and associated outbuildings, which comprise a single residential use, remain a single entity by the formation of a single lot. In addition, it would result in a single lot which is in keeping with the general pattern of single houses on single lots within the Triangle Precinct.
In Parker and City of South Perth [2010] WASAT 35 (Parker) the Tribunal said the following at [46]:
… It is an established planning principle that a single development in this instance, a house and its associated garage should not extend across lot boundaries to ensure that the development remains a single entity. …
The 'established planning principle' referred to by the Tribunal in Parker at [46] reflects orderly and proper planning. Lots which collectively comprise the site of a proposed development should generally be amalgamated to ensure that development approved as a single entity will operate as a single entity throughout the lifetime of the development.
Furthermore, the Precinct Policy states that '[r]esidences are generally single storey houses on single lots' (emphasis added) and condition 3 would have the effect of the house on the site being located on a single lot.
Condition 3 therefore satisfies the first Newbury test. However, for reasons discussed below, in the circumstances of this case, the planning purposes served by the condition do not warrant its imposition in the exercise of planning discretion.
Mr Roberts submits that condition 3 satisfies the second Newbury test - that the condition reasonably and fairly relates to the approved development - 'as the separate elements of the development are located entirely on one or another of 2 lots comprising a single residential property'.
However, in my view, although the separate elements of the approved alterations and additions are located entirely on one or other of the two lots comprising the site, condition 3 does not reasonably and fairly relate to the permitted development.
In Kellett and Town of Vincent [2007] WASAT 155 (Kellett) President Justice Barker reviewed a decision of the Tribunal upon a matter involving a question of law under s 244 of the PD Act. The decision made by the Tribunal was to impose a condition of development approval restricting the hours of operation of a beauty salon in circumstances where the beauty salon already existed with nine treatment rooms and the development application which was granted conditional development approval by the Tribunal involved an increase in the number of treatment rooms from nine to 10. In Kellett at [21], Barker J held as follows in relation to compliance with the second Newbury test:
Although the condition as to hours of operation may have a planning purpose, because the beauty salon is in a predominantly residential area, it arguably does not fairly and reasonably relate to the development permitted by the Tribunal, because the existing treatment rooms are not the subject of the development application for alterations and additions and already have development approval. The applicant was entitled in the circumstances to confine his application to approval of the extension without bringing into question the fact and terms of his existing use approval. In the circumstances, the nature of the development proposed did not provide the occasion to alter the existing hours of operation of the salon.
Similarly, in my view, condition 3 requiring the amalgamation of the lots forming the site does not fairly and reasonably relate to the alterations and additions to the house and outbuildings on the site permitted by the Council, because the alterations and additions are relatively minor, when viewed in the context of the existing house and outbuildings, and do not affect or alter the land use or the essential historic form or function of the development on the site. Importantly, the alterations and additions do not involve any change in land use or the way in which the house functions (other than improving the amenity of its occupants) and would have only minimal impact upon the public domain and adjoining properties.
The impact upon the public domain is limited to the view of the new carport down the existing driveway, which would have a minimum setback of approximately 19.5 metres from the street boundary, and of the northernmost approximately 1 metre wide section of the extension to the house, which would have a setback of approximately 21.5 metres from the street boundary. The impact of the alterations and additions on the adjoining property to the south is limited to a 36 centimetre extension of the existing garage and a section of the new carport (although the majority of the carport would adjoin an existing garage on the neighbouring property). The alterations and additions would have no impact on the adjoining property to the north, because that property has an existing 3.9 metre high brick parapet wall adjoining the extension to the house on the site. The impact of the extension on the neighbouring property to the west is mitigated by an existing tree and an existing tool shed in the western part of the site and a right of way between the site and the neighbouring property to the west.
As the land use and the essential form and function of the house is not the subject of, and is left unaffected by, the development application for alterations and additions, and has remained materially unaltered since the house was constructed straddling the two lots comprising the site in about 1917, a condition requiring the amalgamation of the lots does not reasonably and fairly relate to the permitted development. To adopt and adapt Barker J's words in Kellett at [21]:
The applicant was entitled in the circumstances to confine his application to approval of the [relatively minor alterations and additions] without bringing into question the fact and terms of his existing [lot configuration]. In the circumstances, the nature of the development proposed did not provide the occasion to alter the existing [lot configuration].
Condition 3 is not so unreasonable that no reasonable planning authority could have imposed it and therefore satisfies the third Newbury test. However, as condition 3 does not reasonably and fairly relate to the permitted development, it is contrary to the second Newbury test, and cannot therefore lawfully be imposed.

Is the imposition of condition 3 reasonable and appropriate in the exercise of planning discretion?

As condition 3 cannot lawfully be imposed, the issue of whether it is reasonable and appropriate to impose it in the exercise of planning discretion does not arise for consideration. However, for completeness, I note that, if condition 3 could lawfully be imposed, then, in my view, it would not be reasonable or appropriate to impose it in the exercise of planning discretion, for two reasons.
First, as discussed earlier, the alterations and additions are relatively minor and do not affect or alter the land use or the essential form or function of the development on the site.
Secondly, in the circumstances of this case, the planning purposes served by condition 3 do not warrant its imposition.
Although lots which collectively comprise the site of a proposed development should generally be amalgamated to ensure that development approved as a single entity will operate as a single entity throughout the lifetime of the development, in the circumstances of this case, the amalgamation of the lots comprising the site is not necessary to ensure that the development remains a single entity. The development of the site comprises a single house which has straddled two lots for almost a century. The site is located in an area of significant cultural heritage values which the planning framework contemplates should be conserved, enhanced and reinforced. As noted earlier, development approval would be required under TPS 4 for partial or complete demolition of the house on the site. Given the terms of the planning framework surveyed earlier and the cultural heritage values of the locality, it is highly unlikely that the City (or the Tribunal on review) would grant development approval for complete or substantial demolition of the house so as to enable the two lots comprising the site to operate as separate residential uses. Consequently, the house, garage and associated outbuildings, which comprise a single residential use, are likely to remain a single entity without amalgamation of the lots. The historical and current planning circumstances of the site are such that amalgamation of the lots is not necessary to ensure that the development remains a single entity.

Furthermore, although the Precinct Policy states that '[r]esidences are generally single storey houses on single lots … ' (emphasis added), Mr Andrew Cumming, a town planner employed by the City, gave evidence that in fact less than 30% of the houses in the area of Plan 504 (18 out of 62 houses) are on single lots and that over 80% of the lots in the area of Plan 504 (99 out of 118 lots) contain houses which straddle historic lot boundaries. Although Plan 504 comprises only a part of the Precinct and, as Mr Roberts says in the City's responsive submissions, 'is not recognised by the applicable planning framework', the statement in the Precinct Policy that houses are generally built on single lots is incorrect in relation to the area of Plan 504, which comprises the immediate locality of the site. Consequently, amalgamation of the lots comprising the site is not necessary to accord with the general subdivision pattern in the immediate locality of the site.
The City made essentially three submissions in relation to the exercise of discretion. First, the City referred to 10 development approvals granted by it for alterations and additions on properties consisting of two or more lots in the locality. In five of these cases (in 2005, 2006, 2009, 2011 and 2013), the Council granted development approval without imposing a condition requiring the amalgamation of the lots, whereas in the five other cases (all in 2012 or 2013), the Council imposed a condition requiring amalgamation of the lots.
Mr Roberts concedes that 'there is no discernable underlying rationale that explains by reference to the nature of these developments, why an amalgamation condition was imposed in some cases, but not others'. He submits, however, that it is notable that all of the approvals which include an amalgamation condition occurred recently, in 2012 or 2013, and that all were determined by the City's Development Services Committee, whereas most of the approvals which do not include an amalgamation condition occurred before this period, were (with one exception) issued under delegation by an officer of the City, and, in the case of the 2013 approval, involved alterations and additions located solely on one of two lots comprising a residential property. Mr Roberts submits, therefore, that 'the approvals indicate the City's more recent adoption and application of a consistent approach to the imposition of amalgamation conditions'.
In my view, although the City has, over the last two years, generally required the amalgamation of lots when granting development approval for alterations and additions to houses in the locality of the site, this would not warrant the imposition of a condition requiring amalgamation in the circumstances of this case, for three reasons. First, as discussed earlier, in this case, the alterations and additions are relatively minor and do not affect or alter the essential form or function of the house, and the planning purposes served by the condition do not warrant its imposition. Secondly, although the Council has generally required amalgamations of residential lots in the locality over the last two years, it has not done so invariably. Thirdly, the City has apparently not adopted a planning policy requiring or contemplating the amalgamation of historical lots when alterations and additions are proposed on properties in the locality of the site.
The second submission made by Mr Roberts in relation to the exercise of discretion is that, absent the amalgamation condition, there is a 'real' prospect 'that the two lots comprising the Site may not continue as a single entity'. This is because, although neither of the lots comprising the site complies with the minimum site area requirement set out in Table 1 of State Planning Policy 3.1 - Residential Design Codes (Codes) referred to in the deemedtocomply provision in cl 5.1.1 C1.1 of the Codes, cl 5.1.1 C1.4iii of the Codes enables a variation to the minimum site area set out in Table 1 to be made in respect of 'the area of any existing lot … with permanent legal access to a public road …'. Mr Roberts submits that '[t]he amalgamation condition forecloses this possibility and ensures all physical elements on the Site are contained within a single lot'.
However, as noted earlier, demolition of the existing house would require development approval under TPS 4 and it is highly unlikely that development approval would be granted for complete or substantial demolition of the house, having regard to the terms of the planning framework surveyed earlier and the cultural heritage values of the locality. Given that the house has straddled the lot boundary since it was built close to a century ago and that development approval for complete or substantial demolition of the house is highly unlikely, there is no real prospect that the two lots comprising the site may not continue as a single entity.
Finally, Mr Roberts refers to the Precinct Policy which, as noted earlier, states that '[r]esidences are generally single storey houses on single lots …'. Mr Roberts submits that 'the effect of the condition would be to produce a single lot more in keeping with the predominant pattern of single lots within the Triangle Precinct'. However, as found earlier, the evidence indicates that houses in the immediate locality of the site are generally located on multiple historical lots. Moreover, the 'Desired Future Character' contemplated in the Precinct Policy is 'a residential area of significant heritage character which should be reinforced'. The heritage character is relevantly reinforced by retention of the house on the site and its continued use as a residence. The approved development for alterations and additions to the house and outbuildings (without requiring amalgamation of the lots as a condition of development approval) is generally consistent with the Desired Future Character of the Precinct.

Costs

In his written submissions, Mr Hill asserts that '[t]he [City] has failed to genuinely attempt to impose condition 3 on its merits and costs should be awarded in [Mr Hill's] favour'.
The Tribunal is a generally a 'no costs' or 'costneutral' jurisdiction, although it has a broad discretion under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to make an order for the payment by a party of all or any of the costs of another party: see DR Parry and B De Villiers Guide to Proceedings in the WA State Administrative Tribunal (2012, Lawbook Co. / Thompson Reuters) at [1701] and [1702] and the cases there cited. Section 87(4) of the SAT Act states that, in review proceedings, without limiting anything else that may be considered in making an order for the payment by a party of costs of another party, the Tribunal is to have regard to:
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
Although I have determined that condition 3 cannot lawfully be imposed and that, if it could lawfully be imposed, then it would not be reasonable and appropriate to impose in the exercise of discretion, I am not satisfied that the City did not genuinely attempt to make a decision on its merits when it imposed condition 3. As the Tribunal recognised in Parker at [64], consolidation of lots to ensure that development remains a single entity is an established planning principle. As found earlier, over the last two years, the City has adopted a relatively consistent position in imposing an amalgamation condition when granting development approval for alterations and additions to houses in the locality. Furthermore, although, on the evidence presented to the Tribunal, the statement of existing character in the Precinct Policy that residences are generally 'on single lots' is incorrect in relation to the immediate locality of the site, that statement forms part of the planning policy and the disputed condition would have the effect of creating a residence on a single lot.
In the circumstances of this case, the Tribunal should exercise its discretion as to costs under s 87(2) of the SAT Act by ordering each party to pay its own costs of the proceeding.

Conclusion

Condition 3 requiring the amalgamation of the lots comprising the site cannot lawfully be imposed, because it does not satisfy the second Newbury test. Furthermore, even if the condition could lawfully be imposed, it is not reasonable and appropriate to impose it in the circumstances of the case.
The application for review should be allowed and the decision of the Council to grant conditional development approval should be varied by deleting condition 3.

Orders

For these reasons, I make the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 15 August 2013 to grant conditional development approval for alterations and additions at No 25 (Lot 148 and Lot 299) Kershaw Street, Subiaco is varied by deleting condition 3.
3.Each party is to pay its own costs of this proceeding.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT