| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HILL and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 195 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 AUGUST 2013 PUBLISHED : 28 NOVEMBER 2013 FILE NO/S : DR 67 of 2013 BETWEEN : BENJAMIN DALLAS HILL First Applicant
CHARLES HILL
Second Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning - Subdivision application - Preliminary issues - Two lot subdivision in Albany - Scheme states subdivision should not proceed unless it accords with an approved local structure plan - No such local structure plan yet in existence - Whether subdivision is capable of approval - Whether clauses in scheme can be read down or construed to permit proposed subdivision - Whether related clauses invalid - Whether scheme amendment valid - Tribunal holding intent of scheme clear and unambiguous - Tribunal finding conflict between Planning and Development Act 2005 (WA) and proposed subdivision - No jurisdiction to approve subdivision - No jurisdiction to quash scheme amendment - Application for review dismissed - Observations on costs in unmeritorious cases Legislation: City of Albany Town Planning Scheme No 1A, cl 4.36H, cl 4.36I, cl 4.36N, cl 4.36O
Planning and Development Act 2005 (WA), s 138, s 138(2), s 138(3)
Residential Design Codes of Western Australia Result: Preliminary issues determined in favour of respondent; subdivision refused
Summary of Tribunal's decision: The applicants owned land in Yakamia in the City of Albany. They wished to subdivide their large lot into two smaller parcels for residential development. The City of Albany's town planning scheme said that land in the Future Urban Zone (as this land was) was not to be developed, used, or subdivided, otherwise than in accordance with an approved structure plan. No such plan yet existed in respect of this land.
The Planning and Development Act 2005 (WA) did not permit the subdivision of land where to do so, as here, would conflict with the provisions of a local town planning scheme.
Amongst other arguments, it was submitted by the applicants that the relevant scheme clauses could be read down or otherwise interpreted so as to permit the subdivision to take place. The Tribunal rejected the various arguments put forward on behalf of the applicants, describing them as fanciful and unmeritorious.
The language, intent and effect of the scheme were plain and unambiguous.
The combined effect of the scheme and the statute meant that the subdivision could not be approved. The application for review was therefore dismissed.
Category: B
Representation: Counsel:
First Applicant : Mr I McKellar - Agent
Second Applicant : Mr I McKellar - Agent
Respondent : Mr I A Repper
Solicitors:
First Applicant : N/A
Second Applicant : N/A
Respondent : State Solicitor for Western Australia
Case(s) referred to in decision(s):
Landpark Holdings Pty Ltd v Western Australian Planning Commission [2007] WASAT 130
Rocca & Anor v Western Australia Planning Commission [2007] WASAT 110
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 In 2012, the applicants applied to subdivide certain land in Yakamia, Albany into two lots. The subdivision was refused and the review in this Tribunal has raised certain preliminary issues. In short, these matters relate to whether the subdivision can be permitted as a matter of law. 2 The Tribunal has, for the reasons that follow, concluded that the respondent Western Australia Planning Commission was correct to refuse the application for subdivision. 3 The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Statement of preliminary issues 4 The preliminary issues appear more formally in the respondent’s document dated 25 March 2013, namely the 'Statement of Preliminary Issues for Determination'. These issues are agreed between the parties. The preliminary issues are as follows: Factual background 5 The essential facts, history of the application and zoning (which are common ground) are set out at paragraphs 1 to 8 of the respondent's submissions in relation to the preliminary issue, dated 23 April 2013. They are as follows: Background 1. The land the subject of these proceedings (the subject land) is located at Lot 19 Barnesby Drive, Yakamia, in the City of Albany (the City).
2. The applicant[s] applied, pursuant to section 135 of the Planning and Development Act 2005 (the PD Act), to subdivide land into two lots of 1198 square metres (Lot A) and 1142 square metres (Lot B) (the application for subdivision). An existing house on Lot A is to be retained.
3. The application for subdivision was received by the respondent on 6 November 2012, and refused on 29 January 2013.
4. On 27 February 2013 the applicant[s] applied to the Tribunal for review of the respondent's decision to refuse the application for subdivision.
5. Pursuant to orders made by the Tribunal on 13 May 2013, a preliminary issue arises for determination by the Tribunal (the preliminary issue). The preliminary issue is in two parts, and is set out in the respondent's Statement of Preliminary Issues for Determination of 25 March 2013 [see above].
Relevant facts and legislation
6. The subject land is zoned 'Future Urban' by the City of Albany Town Planning Scheme 1A (TPS 1A).
7. Clauses 4.36 to 4.36O of TPS 1A apply to land within the 'Future Urban' zone. These clauses were inserted into TPS 1A by amendment 176, gazetted on 26 June 2012. These clauses read as follows: FUTURE URBAN PROVISIONS Purpose and intent of Future Urban Zone 4.36 The Future Urban Zone is intended to provide for residential and urban related development after comprehensive planning of the relevant area has been carried out resulting in a local structure plan approved by the Council and endorsed by the Western Australian Planning Commission (Approved LSP). Adoption and Approval of Local Structure Plan 4.36A When a proposed LSP has been prepared to the satisfaction of the local government, the local government shall advertise the plan for not less than 28 days. 4.36B The local government shall consider any submissions made in regard to the proposed LSP. 4.36C In determining the proposed LSP the local government may: 4.36D After approving the proposed LSP, the local government shall forward the plan to the Commission, together with a summary of all submissions and any other relevant information, and shall request the Commission to endorse the plan. 4.36E The Commission is to either endorse the proposed LSP with or without modifications; or refuse to endorse the proposed LSP and give reasons for its decision to Council and the proponent. 4.36F [Rights of review]. 4.36G Any departure from or alteration to the LSP may be permitted by Council or the Commission if it is considered the departure is minor in nature, would not prejudice the progressive development of the area, and is consistent with the objectives of the zone and the LSP. Development and Subdivision to Accord with LSP 4.36H Subject to Clause 4.36I, land in the Future Urban Zone shall not be developed, used or subdivided, otherwise than in accordance with an Approved LSP. 4.36I The Council may approve an application to develop land within the Future Urban Zone for a Single House, Ancillary Accommodation, Bed and Breakfast, Home Business, Home Occupation or Home Office notwithstanding [that] no Approved LSP applies to that land, but once an Approved LSP comes into operation, clause 4.36H shall thereafter apply. 4.36J Where application is made in the Future Urban zone for a use which is to be considered under S3.6 of the Scheme and a Local Structure Plan is not in place, Council will not approve the use unless satisfied that it will not prejudice or compromise the future comprehensive planning of the area in which the use is proposed. Permissibility of Use and Development Standards 4.36K An Approved LSP may specify the permissibility of land uses, applicable residential density codes and standards or requirements for the development and subdivision of land. 4.36L Where an Approved LSP classifies land in a manner which corresponds to a zone or reserve designated by the Scheme, the provisions of the Scheme which relate to that zone or reserve, including as to use class permissibility and development standards, shall apply to that land except to the extent any such provision is modified by the Approved LSP. Operation of Approved LSP 4.36M An Approved LSP comes into effect on the day following its endorsement by the Western Australian Planning Commission. 4.36N An Approved LSP shall have the same force and effect as if enacted as part of the Scheme but subject to anything expressed or implied in the Approved LSP to the contrary. The provisions of an Approved LSP shall prevail to the extent of any inconsistency with the Scheme, but otherwise the Scheme continues to apply to land within the Future Urban Zone. 4.36O A Local Structure Plan prepared for the purpose of Clause 4.36: (a) shall include a checklist identifying how it achieves the objectives of the Western Australian Planning Commission’s Liveable Neighbourhoods document, as amended from time to time; (b) may indicate which of its provisions are intended to take effect as part of the Scheme, and which are not; (c) may be prepared by the Council or by an owner of land within the Future Urban Zone; and (d) may deal with any matter which may be dealt with by a local planning scheme.
Statutory background 6 Key to the resolution of these issues is s 138 of the Planning and Development Act 2005 (WA) (PD Act). So far as is relevant, that provision is as follows (emphasis added): 138. Commission’s functions when approving subdivision etc. (1) The Commission may give its approval under section 135 [that is, for subdivision] … subject to conditions which are to be carried out before the approval becomes effective. (2) Subject to subsection (3), in giving its approval under section 135 … the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration andis not to give an approval that conflicts with the provisions of a local planning scheme. (3) The Commission may give an approval under section 135 … that conflicts with the provisions of a local planning scheme if - (a) the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter; or (b) the approval is consistent with a region planning scheme that deals with substantially the same matter; or (c) in the opinion of the Commission - or (d) the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict; or (e) in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or (f) the approval is given in circumstances set out in the regulations. (4) Despite subsection (3), the Commission is to ensure that an approval under section 135 … complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration.
First issue: conflict with s 138 of the PD Act 7 The first substantive issue is whether the proposed subdivision relevantly conflicts with s 138(2), read as maybe necessary with the exceptions in s 138(3) of the PD Act, in that cl 4.36H of the City of AlbanyTown Planning Scheme 1A (TPS 1A), on its face, proscribes subdivision otherwise than in accordance with an approved local structure plan. 8 At the time of the determination of these issues there is still no approved local structure plan (LSP) in force. This fact, in the circumstances of the case, would seem to be fatal to the applicants’ review by application of two previous decisions of the Tribunal: Landpark Holdings Pty Ltd v Western Australian Planning Commission [2007] WASAT 130 (Landpark) and, more relevantly, Rocca & Anor v Western Australia Planning Commission [2007] WASAT 110 (Rocca). 9 These two cases were decided by a former senior member of this Tribunal and are, unsurprisingly, relied upon by the respondent to submit that the preliminary issues ought to be determined in its favour. 10 Unlike the situation here, the respondent in Landpark had argued, unsuccessfully, that the Residential Design Codes of Western Australia (RCodes) (as then in force), the use of which were mandated by the relevant town planning scheme in respect of the 'use or development of land', controlled subdivision directly under s 138(2) of the PD Act. The Tribunal held that the use or development of land did not extend to the subdivision of land. 11 Importantly, Rocca held that the application of s 138(2) of the PD Act prevented a subdivision where a town planning scheme 'impose[d] a mandatory requirement for approval by the [respondent] of an outline development plan before its determination of a subdivision application' and that step had not been taken (at [22]).
Applicants' arguments regarding the interpretation of TPS 1A 12 The first argument of the applicants is that cl 4.36H is, in effect, controlled by cl 4.36I. Those two clauses read as follows: 4.36H Subject to Clause 4.36I, land in the Future Urban Zone shall not be developed, used, or subdivided, otherwise than in accordance with an Approved LSP. 4.36I The Council may approve an application to develop land within the Future Urban Zone for a Single House, Ancillary Accommodation, Bed and Breakfast, Home Business, Home Occupation or Home Office notwithstanding [that] no Approved LSP applies to that land, but once an Approved LSP comes into operation, clause 4.36H shall thereafter apply. 13 The applicants argue that cl 4.36I, on its proper construction, suggests that cl 4.36H only applies or operates after an approved LSP comes into operation. It is further contended that to read the clause otherwise would suggest that a ban or prohibition applies to any development, including existing development, when the scheme amendment containing these clauses came into effect. 14 With respect, these readings are fanciful. 15 The prohibition ('shall not be … subdivided') in cl 4.36H is plain and unambiguous, and plainly made subject to a clear exception ('Subject to Clause 4.36I …'). 16 The clauses are otherwise drafted against the common law and statutory requirements that, in effect, protect any vested right, entitlement or interest. Clear words would be needed to set aside any such vested right. Thus, in respect of an approved lawful development existing at the time of the gazettal, the clauses must be taken to have been drafted in accordance with the usual canons of drafting against a backdrop of common legal assumptions. 17 I therefore do not accept the applicants’ contentions on this point. 18 Next, the applicants rely on the actual drafting of the clause, in effect contrasting its terms with the apparently more mandatory terms that its counterpart clause had in Rocca. There, the relevant clause, found at [7], provided as follows: … The subdivision and development of land zoned 'Residential Development' should not proceed unless it accords with a properly prepared and approved 'Outline Development Plan'. 19 This argument is, with respect, without merit. 20 A particular drafting style or form adopted by another local government cannot control the form in which the prohibition found in cl 4.36H must be expressed or, for that matter, interpreted. Both clauses are aimed at the same target, preventing subdivision other than the terms of a controlling planning instrument. This is the only relevant point of any comparison between the two formulations. 21 Next, the applicants attack the lawfulness of both cl 4.36N (an approved LSP '[has] the same force and effect as if enacted as part of the Scheme') and cl 4.36O (relationship of an approved LSP to other instruments). They are both said to be repugnant to the powers and discretions given to the local government under the PD Act itself, the ultimate source of these amendments. 22 Now, even if the applicants were to be found correct in their contentions, such clauses would likely be severable and, in any case, do not relevantly affect the operation of cl 4.36H as a LSP of albeit reduced or changed status would still be required to permit subdivision. 23 Finally the applicants argue that the LSP is '[n]ot going to introduce anything determinative which would alter the final planning outcome.' 24 This argument, amongst other problems, is wholly speculative and must also be rejected. It will be the terms of the LSP itself, as finally approved, which will determine the subdivision outcome.
Applicants' further arguments 25 In the applicants’ responsive submissions, the first argument referred to above is apparently further refined by assertions allegedly supported by apparent ambiguities in the scheme amendment report. It is said that '[n]othing at all is said about preventing all subdivision of land as soon as the amendment was made.' 26 This submission appears to be bolstered or perhaps based upon the proviso that is found in cl 4.36I ('Council may approve an application to develop land … for a Single House [etc]'), which is described as the council 'reserving for itself' the power to approve development of a single house. 27 These contentions stand in the face of the plain wording and obvious intention of cl 4.36H, which has already been referred to in these reasons (see above). The clause simply attempts to regulate development, use and subdivision, apart from any express exception found elsewhere, in accordance with an approved LSP. 28 The contentions on this point made by the applicants must also be rejected. 29 The next responsive argument is a variation on a theme already advanced. The contention appears to be that so long as no new roads are created, which would be proscribed development, then there would be no conflict between the proposed subdivision and the intent of TPS 1A, as single residential development (which may be permitted), including any necessary subdivision to effect that development, is contemplated or must be said to have been contemplated by the scheme. 30 Again, this argument flies in the face of the construction that the Tribunal has already given to the scheme amendment referred to above. It must also be rejected. 31 Finally, the applicants reiterate an invalidity argument that this time asserts that the entire amendment 176 to TPS 1A is void and of no effect. Now, only a superior court can quash a scheme amendment and unless and until that event occurs, the amendment must be considered as valid and must be applied according to its terms. 32 The applicants, I note, do not seek to rely on any of the exceptions found in s 138(3).
Conclusion 33 To conclude, the Tribunal intends to follow Rocca and Landpark and apply amendment 176 in its terms. Therefore, the preliminary issues must be determined in the respondent’s favour. 34 The answers to the preliminary issues will be to the effect that the application for subdivision would conflict with cl 4.36H of the scheme. It is therefore not capable of approval by the respondent or, on review, this Tribunal. 35 Subject to what the parties submit, the corollary of this would appear to be that I should dismiss the application. 36 I have not otherwise raised or addressed the question of costs, subject to anything that the respondent wishes to say. But, I want to put it on record that if we were to have future exercises of this nature, with largely unmeritorious and speculative arguments that seek to undermine very clear decisions of the Tribunal applying clear legislative rules (such as this case, and its relevant predecessors), then such unsuccessful arguments might be met with cost implications.
Orders For the reasons given above, the orders of the Tribunal are: 1. The preliminary questions are answered adverse to the applicants. 2. The proposed subdivision under review is incapable of approval by reason of the application of s 138(2) of the Planning and Development Act 2005 (WA). 3. The decision under review is affirmed. 4. The application for review is dismissed. |