KAIZEN PROPERTY DEVELOPMENTS PTY LTD and CITY OF ARMADALE
[2017] WASAT 123
•14 SEPTEMBER 2017
KAIZEN PROPERTY DEVELOPMENTS PTY LTD and CITY OF ARMADALE [2017] WASAT 123
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 123 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:36/2017 | 7 JUNE AND 7 SEPTEMBER 2017 | |
| Coram: | MS D QUINLAN (MEMBER) | 14/09/17 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Review dismissed and decision to refuse proposed development affirmed | ||
| B | |||
| PDF Version |
| Parties: | KAIZEN PROPERTY DEVELOPMENTS PTY LTD CITY OF ARMADALE |
Catchwords: | Town planning Preliminary issue Development application Residential Design Codes Deemed Provisions Whether inconsistency Multiple dwelling - Grouped dwelling |
Legislation: | City of Armadale Local Planning Scheme No 4, cl 3.2.1, cl 3.3.2, cl 4.2.1, cl 4.2.2, cl 5.2.2, cl 10.2 Metropolitan Region Scheme Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, cl 25, cl 27, cl 61, cl 61(c), cl 67, cl 67(a), cl 67(c) Planning and Development Act 2005 (WA), s 52(1), s 257B(3) State Administrative Tribunal Act 2004 (WA), s 27(2), s 29(3)(c)(ii), s 31 State Planning Policy 3.1 - Residential Design Codes, Pt 5, Pt 6 Town Planning Regulations 1967 (WA) Appendix B (Model Scheme Text), cl 10.2 |
Case References: | Amherst Developments Pty Ltd and City of Gosnells [2017] WASAT 16 Christian and Town of Vincent [2005] WASAT 229 City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 Ellis and City of ,Stirling [2014] WASAT 172 Filton Pty Ltd and Town of Vincent [2006] WASAT 70 Metropolitan Management Pty Ltd and Town of Vincent [2008] WASAT 261 Puma Energy Australia and City of Cockburn [2016] WASAT 36 Shaun Arseven and Town of Vincent [2003] WATPAT 83 |
Orders | 1. The review is dismissed.,2. The decision of the respondent on 24 January 2017 refusing the proposed development is affirmed. |
Summary | The applicant made an application seeking development approval for six two storey dwellings as well as retention of the existing single residential dwelling (proposed development) on Lot 25 (No 49) Forrest Road, Armadale (subject site). The City of Armadale refused the application on the basis that the proposed development did not comply with the provisions relating to grouped dwellings under Pt 5 of State Planning Policy 3.1: Residential Design Codes (RCodes). The applicant sought a review of that refusal in the Tribunal.,The crux of the dispute between the parties which arose was regarding the applicability of, and/or weight to be afforded to, the RCodes in the circumstances of this matter and the extent to which it is necessary to classify the proposed development as a 'grouped dwelling' (grouped dwelling) or a 'multiple dwelling' (multiple dwelling). The dispute between the parties was a preliminary issue to be determined by the Tribunal which, depending on the Tribunal's findings, had the potential to finally determine the proceedings.,The Tribunal made the following findings:, a) The R-Codes have been incorporated into the City of Armadale Local Planning Scheme No 4 (LPS 4 or Scheme) in cl 4.2.2 which operates to elevate the RCodes above consideration as only policy to which 'due regard' as found in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 should be given., b) Clause 4.2.2 is not inconsistent with cl 67(c) and therefore s 257B(3) of the Planning and Development Act 2005 (WA) has no application., c) By operation of cl 4.2.2 of the Scheme, the proposed development is required to conform with the provisions of the RCodes., d) The proposed development is a grouped dwelling as defined in the RCodes because no part of any dwelling sits vertically above another., e) The proposed development does not conform with the R-Codes in that it does not satisfy the deemed to comply provisions or the design principles in Pt 5 of the RCodes.,The Tribunal found in the exercise of its discretion that it is consistent with orderly and proper planning that the correct and preferable decision on review was to refuse to approve the proposed development. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KAIZEN PROPERTY DEVELOPMENTS PTY LTD and CITY OF ARMADALE [2017] WASAT 123 MEMBER : MS D QUINLAN (MEMBER) HEARD : 7 JUNE AND 7 SEPTEMBER 2017 DELIVERED : 14 SEPTEMBER 2017 FILE NO/S : DR 36 of 2017 BETWEEN : KAIZEN PROPERTY DEVELOPMENTS PTY LTD
- Applicant
AND
CITY OF ARMADALE
Respondent
Catchwords:
Town planning - Preliminary issue - Development application - Residential Design Codes - Deemed Provisions - Whether inconsistency - Multiple dwelling - Grouped dwelling
Legislation:
City of Armadale Local Planning Scheme No 4, cl 3.2.1, cl 3.3.2, cl 4.2.1, cl 4.2.2, cl 5.2.2, cl 10.2
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1, Sch 2, cl 25, cl 27, cl 61, cl 61(c), cl 67, cl 67(a), cl 67(c)
Planning and Development Act 2005 (WA), s 52(1), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 29(3)(c)(ii), s 31
State Planning Policy 3.1 - Residential Design Codes, Pt 5, Pt 6
Town Planning Regulations 1967 (WA) Appendix B (Model Scheme Text), cl 10.2
Result:
Review dismissed and decision to refuse proposed development affirmed
Summary of Tribunal's decision:
The applicant made an application seeking development approval for six two storey dwellings as well as retention of the existing single residential dwelling (proposed development) on Lot 25 (No 49) Forrest Road, Armadale (subject site). The City of Armadale refused the application on the basis that the proposed development did not comply with the provisions relating to grouped dwellings under Pt 5 of State Planning Policy 3.1: Residential Design Codes (RCodes). The applicant sought a review of that refusal in the Tribunal.
The crux of the dispute between the parties which arose was regarding the applicability of, and/or weight to be afforded to, the RCodes in the circumstances of this matter and the extent to which it is necessary to classify the proposed development as a 'grouped dwelling' (grouped dwelling) or a 'multiple dwelling' (multiple dwelling). The dispute between the parties was a preliminary issue to be determined by the Tribunal which, depending on the Tribunal's findings, had the potential to finally determine the proceedings.
The Tribunal made the following findings:
a) The R-Codes have been incorporated into the City of Armadale Local Planning Scheme No 4 (LPS 4 or Scheme) in cl 4.2.2 which operates to elevate the RCodes above consideration as only policy to which 'due regard' as found in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 should be given.
b) Clause 4.2.2 is not inconsistent with cl 67(c) and therefore s 257B(3) of the Planning and Development Act 2005 (WA) has no application.
c) By operation of cl 4.2.2 of the Scheme, the proposed development is required to conform with the provisions of the RCodes.
d) The proposed development is a grouped dwelling as defined in the RCodes because no part of any dwelling sits vertically above another.
e) The proposed development does not conform with the R-Codes in that it does not satisfy the deemed to comply provisions or the design principles in Pt 5 of the RCodes.
The Tribunal found in the exercise of its discretion that it is consistent with orderly and proper planning that the correct and preferable decision on review was to refuse to approve the proposed development.
Category: B
Representation:
Counsel:
Applicant : Mr P G McGowan
Respondent : Ms A M Wood
Solicitors:
Applicant : Lewis Blyth & Hooper
Respondent : Kott Gunning Lawyers
Case(s) referred to in decision(s):
Amherst Developments Pty Ltd and City of Gosnells [2017] WASAT 16
Christian and Town of Vincent [2005] WASAT 229
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
Ellis and City of ,Stirling [2014] WASAT 172
Filton Pty Ltd and Town of Vincent [2006] WASAT 70
Metropolitan Management Pty Ltd and Town of Vincent [2008] WASAT 261
Puma Energy Australia and City of Cockburn [2016] WASAT 36
Shaun Arseven and Town of Vincent [2003] WATPAT 83
Introduction
1 On 24 October 2016 Kaizen Property Developments Pty Ltd (applicant) made an application to the City of Armadale (respondent or City) seeking development approval for six two storey dwellings as well as retention of the existing single residential dwelling (proposed development) on Lot 25 (No 49) Forrest Road, Armadale (subject site).
2 On 24 January 2017, the City determined that the proposed development should be refused as it did not comply with the provisions relating to grouped dwellings under Pt 5 of State Planning Policy 3.1: Residential Design Codes (R-Codes).
3 On 30 January 2017 the applicant sought a review of the respondent's refusal in the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
4 The crux of the dispute between the parties which arises in these proceedings is regarding the applicability of, and/or weight to be afforded to, the R-Codes in the circumstances of this matter and the extent to which it is necessary to classify the proposed development as a 'grouped dwelling' (grouped dwelling) or a 'multiple dwelling' (multiple dwelling) as defined under the R-Codes. The issues in dispute are detailed further later in these reasons.
5 It is also relevant for the Tribunal to give consideration in determining this matter, that the applicant had a previous approval for multiple dwellings at the subject site (previous approval). The previous approval lapsed on 31 July 2016. The previous approval and the proposed development have the same number of dwellings and appearance to the streetscape. The only substantive difference between the previous approval and the proposed development is that the internal configuration of the dwellings has changed, in that the previous approval had areas of plot ratio of dwellings which sat above the plot ratio of other dwellings and the proposed development has no part of one dwelling which sits above another dwelling.
Recent amendment to the Scheme
6 The hearing of this matter was heard in the Tribunal on 7 June 2017.
7 On 20 June 2017, amendments were made to the City of Armadale Local Planning Scheme No 4 (LPS 4 or Scheme) that were relevant to the way the parties presented their case at the hearing. Of note the numbering of cl 5.2.2 was changed to cl 4.2.2, the numbering of cl 4.2.1 was changed to 3.2.1 and, more particularly, cl 10.2 of the Scheme was deleted in its entirety.
8 Clause 10.2 derived its origins from a provision in Appendix B of the Town Planning Regulations 1967 (WA) (previous Model Scheme Text).
9 The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in Sch 2 a number of provisions which are deemed to be included in the local planning scheme text (Deemed Provisions). Pursuant to the operation of s 257B(3) of the PD Act, if a Deemed Provision is inconsistent with a provision of a local planning scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.
10 In Puma Energy Australia and City of Cockburn [2016] WASAT 36 (Puma Energy) the Tribunal found that cl 67 of the Deemed Provisions prevailed as it was found to be inconsistent with cl 10.2 of the previous Model Scheme Text as the Tribunal took the view that cl 10.2 sought to perform precisely the same function as cl 67 of the Deemed Provisions: see [38] - [47].
11 Prior to the Scheme amendment on 20 June 2017, Puma Energy would have had application to the present proceedings in that cl 10.2 of LPS 4 is identical to the cl 10.2 referred to in Puma Energy. Therefore, in adopting and following Puma Energy, cl 10.2 of LPS 4 was inconsistent with cl 67 of the Deemed Provisions and, pursuant to s 257B(3) of the PD Act, cl 67 of the Deemed Provisions would prevail over cl 10.2 of LPS 4.
12 However, in any event, the amendments to the Scheme made on 20 June 2017, have overtaken matters as cl 10.2 of LPS 4 has been deleted and can now have no effect on the Tribunal's decision at this time pursuant to the operation of s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
13 The parties at the hearing appeared to be unaware of the Tribunal's decision in Puma Energy and both focussed on the statutory construction of these two provisions of the Scheme that were amended and deleted on 20 June 2017. Therefore, in order to ensure that the parties were afforded procedural fairness prior to this decision being published, the Tribunal listed a directions hearing on 7 September 2017. The Tribunal enquired of the parties at the directions hearing as to whether any of the amendments to the Scheme affected their submissions and to allow the parties a short period to provide further submissions should they wish to do so.
14 On 12 September 2017 the applicant advised the Tribunal that the applicant does not intend to file any further submissions in relation to the Scheme amendment on 20 June 2017. The respondent also advised that it did not wish to provide any further submissions regarding the Scheme amendment other than those provided at the directions hearing on 7 September 2017.
The subject site and the proposed development
15 The proposed development is situated on the subject site which is 1,012m² in size and can be described as follows:
(a) Retention of the existing single residential dwelling; and
(b) Six two storey residential dwellings situated behind the existing dwelling which consists of:
a. Each dwelling having two bedrooms;
b. Each dwelling having an exclusive outdoor living area being six ground floor courtyards;
c. With communal car parking, bin storage area, drying area and pedestrian/vehicle access; and
d. None of the six dwellings have any part of one dwelling vertically above another dwelling.
16 The subject site is zoned 'Urban' under the Metropolitan Region Scheme. Under LPS 4 the subject site is zoned 'Residential R40'.
17 The objectives of the Residential zone are provided for in cl 3.2.1 of the Scheme as follows:
(a) To provide for a range of housing and a choice of residential densities to meet the needs of the variety of household types which make up the community.
(b) To provide for a range of associated compatible activities and development, which will assist in the creation of efficient and sustainable residential neighbourhoods.
(c) To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
18 Both multiple dwelling and grouped dwelling are classified in the Zoning Table of LPS 4 as 'D' uses at the subject site which, pursuant to cl 3.3.2 of LPS 4, means that the use is not permitted unless the City has exercised its discretion by granting planning approval.
19 Whilst the R-Codes are a State planning policy, cl 4.2.2 of LPS 4 gives the R-Codes legislative effect by providing that residential development is 'to conform with the provisions of these codes'. Relevant to these proceedings cl 4.2.2 specifically provides:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [Residential Design Codes] is to conform with the provisions of those Codes.
20 Clause 67 of the Deemed provisions provides that in considering an application for development approval the local government (with the Tribunal on review standing in the shoes of the local government) is to have due regard to a number of matters to the extent that in the opinion of the local government those matters are relevant to the proposed development.
21 The subclauses in cl 67 of the Deemed Provisions that are relevant matters for the Tribunal to have due regard to in these proceedings are: (a) aims and provisions of the Scheme; (b) requirements of orderly and proper planning; (c) any approved State planning policy; and (w) the history of the site where the development is to be located.
22 Clause 61 of the Deemed Provisions provide for a number of instances where development approval is not required. Amongst other things, these include in cl 61(c) of the Deemed Provisions the erection of a single house on a lot if the R-Codes apply to that development and the development meets the deemedtocomply requirements of the R-Codes and it is not located in a place that has been specifically excluded.
23 The headings or title of Pt 5 and Pt 6 of the R-Codes delineate which part applies to the development being assessed under the R-Codes. Part 5 and Pt 6 are entitled as follows:
Part 5 Design elements for all single house(s) and grouped dwellings; and multiple dwellings in areas coded less than R40
Part 6 Design elements for multiple dwellings in areas coded R40 or greater; within mixed use development and activity centres
24 Therefore, a multiple dwelling located in an area coded less than R40 is to be assessed under Pt 5 of the R-Codes and a multiple dwelling located in an area coded R40 or greater is to be assessed under Pt 6 of the R-Codes. All single houses and grouped dwellings, whatever their density coding, are assessed under Pt 5 of the R-Codes.
25 Both Pt 5 and Pt 6 of the R-Codes provide in relation to certain aspects of a proposed development listed criteria in two columns entitled 'Design principles' and 'Deemed-to-comply'. A proposed development, for each of the listed components in Pt 5 and Pt 6 of the R-Codes, can either satisfy the deemedtocomply component or if that is not satisfied then the proposed development is to be assessed under the corresponding design principle for that component. Proposed developments can be assessed under the applicable deemedtocomply provisions for some components and where deemedtocomply are not met, particular components of a proposed development can be assessed under the applicable design principles. The deemedtocomply column is only one way, or example of, that which is deemed to satisfy the design principles, however there are many ways other than the deemedtocomply provisions that design principles can be met. Flexibility and discretion are inherent to the exercise of applying the design principles.
26 The RCodes define a grouped dwelling as follows:
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property.
27 The R-Codes define a multiple dwelling as follows:
A dwelling in a group of more than one dwelling on a lot where any part of the plot ratio area of a dwelling is vertically above any part of the plot ratio area of any other but:
• does not include a grouped dwelling; and
• includes any dwellings above the ground floor in a mixed use development.
28 Therefore, the R-Codes provide that if a proposed development fits the definition of a grouped dwelling it cannot be defined as a multiple dwelling.
29 Both 'plot ratio' and 'plot ratio area' are also defined in the RCodes.
Cases
30 In Filton Pty Ltd and Town of Vincent [2006] WASAT 70 (Filton), the Tribunal considered whether a proposed development was to be classified as a grouped dwelling or a multiple dwelling. Some caution needs to be exercised in applying Filton to the present proceedings. When Filton was determined, the definition of a grouped dwelling was the same as the present definition in the RCodes. However, the definition of a multiple dwelling was different at the time of Filton. Relevant to these proceedings, it provided where 'any part of a dwelling is vertically above' whereas the present definition in the R-Codes provides where 'any part of the plot ratio of a dwelling is vertically above'.
31 The Tribunal held in Filton that the R-Codes intend to provide a distinction between grouped dwellings and multiple dwellings, in that each grouped dwelling occupies a separate and distinct part of a site whereas multiple dwellings occupy a site in common: see [59] - [60].
32 Having considered the legislative intention and the context the Tribunal found in Filton that 'any part of a dwelling' relevantly meant 'any substantial part of a dwelling': see [67].
33 The approach by the Tribunal in Filton was followed in Metropolitan Management Pty Ltd and Town of Vincent [2008] WASAT 261: see [87] [89].
34 In Ellis and City of Stirling [2014] WASAT 172 (Ellis), the Tribunal found that in order for a proposed development to satisfy the definition of a multiple dwelling in the RCodes, only one dwelling in the group of dwellings comprising the proposed development must have a substantial part of its plot ratio area above the plot ratio area of another dwelling: see [32], [38] - [39].
35 In Ellis the Tribunal considered the history of Tribunal decisions on this issue and the extent to which Filton still applied. The Tribunal in these proceedings agrees with and follows the reasoning in Ellis which found as follows at [38] - [39]:
I am satisfied that, overall, the Codes continue to evince a clear distinction between 'grouped dwelling' and 'multiple dwelling' as fundamentally different dwelling types. The important point from Filton, which remains a persuasive one, was effectively summarised in Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 (Ridgecity) at [36]:
… As the Tribunal determined in Filton and Town of Vincent [2006] WASAT 70, single dwellings and grouped dwellings, on the one hand, and multiple dwellings, on the other, are significantly different forms of development, in that whereas single and grouped dwellings generally occupy a separate and distinct portion of a site, multiple dwellings generally occupy a site communally.
In my view, I should continue to apply the interpretation of what is meant by a 'part' in the definition of 'multiple dwelling' as explained in Filton. Therefore, it is necessary that at least one dwelling in the group of dwellings under consideration has a substantial part of its plot ratio area vertically above the plot ratio area of another dwelling[.]
36 Prior to the introduction of the Deemed Provisions the Tribunal has held that, in schemes which incorporate the RCodes, that the R-Codes have been elevated above other State planning policies and thereby acquiring legislative effect as the scheme requires the R-Codes to now be read as part of the scheme: see for instance Shaun Arseven and Town of Vincent [2003] WATPAT 83 at [26] and Christian and Town of Vincent [2005] WASAT 229 at [16] - [19].
37 In Amherst Developments Pty Ltd and City of Gosnells [2017] WASAT 16 at [17], the Tribunal found that scheme provisions which dealt with the operation, or effect of, structure plans were inconsistent with cl 27 of the Deemed Provisions and were held under s 57B(3) of the PD Act to no longer be of any effect as cl 27 of the Deemed Provisions now prevailed.
38 The Supreme Court in City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141 (ALH Group Property Holdings) found that the obligation to give 'due regard' to a policy meant 'proper, genuine and realistic consideration': at [42] - [46].
Issues to be determined
39 These proceedings were listed for a final hearing to occur on 7 June 2017 with programming orders that the parties were to agree the issues to be determined. However, the issues as framed that were agreed were more akin to a preliminary issue and each party, in particular the respondent, prepared their case on that basis. I raised this issue with the parties at the hearing of this matter and each party took a different approach as to what orders should be made if the applicant was successful on its submissions.
40 The applicant submitted that the hearing should be converted from a final hearing to a hearing on a preliminary issue with the result being that, if the applicant was successful in convincing the Tribunal as to its submissions, that the matter would be sent back for a reconsideration under s 31 of the SAT Act in order to keep the proceedings on foot in the Tribunal should the dispute continue and a final hearing on the merits be required.
41 The respondent submitted that the matter had already been reconsidered, and that, if the applicant was successful on its submissions, that a final order under s 29(3)(c)(ii) of the SAT Act should be made sending the matter back for reconsideration with a direction that the City assess the proposed development as a multiple dwelling.
42 Therefore, dependent upon the Tribunal's findings in relation to the issues, the matter may be finally determined or, further evidence may need to be obtained.
43 The issues or questions for determination in these proceedings were agreed amongst the parties as follows:
Issue 1
When determining an application that is subject to the RCodes, is it necessary to determine whether the proposed development is a single house or a grouped dwelling or a multiple dwelling?
Issue 2
If the answer to question 1 is yes, are the buildings contained within the proposed development:
a) 'grouped dwellings' within the meaning of that term as defined in the R-Codes; or
b) 'multiple dwellings' within the meaning of that term as defined in the R-Codes?
Issue 3
If the answer to question 1 is no, what is the basis for determining a development application that is subject to the RCodes?
45 Secondly, and more importantly, there is a broader question or issue to determine in these proceedings. It is the status to which the R-Codes presently have under the Scheme and the weight to be afforded to them and the extent to which the specific provisions of the R-Codes should apply to the proposed development.
46 If the Tribunal were to find that the answer to question 1 is 'yes'; the answer to question 2 is that the proposed development is a multiple dwelling; and in circumstances where the Tribunal has no expert planning evidence to assess the merits of the proposed development as a multiple dwelling, it was agreed that further programming orders including the exchange of further expert planning evidence and a hearing would be required. The respondent submitted that its expert planner had not assessed the proposed development as a multiple dwelling and sought an opportunity to do so if the Tribunal answered question 1 in the affirmative. The applicant submitted that its expert town planner, Mr Stephen Allerding, had assessed the proposed development as both a grouped dwelling and a multiple dwelling, however, the Tribunal does not agree with this submission and finds that Mr Allerding had not undertaken such a detailed merits based assessment.
47 If the Tribunal were to find that the answer to question 1 is yes; the answer to question 2 is that the proposed development is a grouped dwelling; in circumstances where it was agreed that the proposed development does not meet either the deemedtocomply or the design principles in Pt 5 of the R-Codes for a grouped dwelling; and (in answer to the applicant's submissions) if the Tribunal finds that there is no cogent reason why the R-Codes should not be applied to the proposed development, it was agreed that final orders could be made dismissing the review proceedings.
Applicant's submissions
48 In summary, the applicant submits as follows:
a) The correct approach in assessing the proposed development is to begin with what the Scheme.
b) Outside of the specific issues to be determined prepared by the parties there exists a broader issue to be determined as to the status, or weight, to be attributed to the RCodes in assessing development applications.
c) The Scheme identifies that multiple dwellings and grouped dwellings are permissible (discretionary) uses at the subject site.
d) Clause 67 of the Deemed Provisions prevails over cl4.2.2 of the Scheme, which is limited in any event by its introductory words of '[u]nless otherwise provided for in the Scheme' resulting in the local government now only having due regard to the R-Codes rather than a proposed development being required to conform with the RCodes.
e) Then a substantive, not superficial, analysis of the proposed development should occur having regard to the objectives of the Residential zone and the extent to which the R-Codes have a role to play, the objectives of theRCodes.
f) When a 'purposive' approach is undertaken, the conclusion as indicated through the applicant's expert evidence of Mr Ron Acott and Mr Stephen Allerding, isthat there is no reason in substance why approval ought not be granted.
g) If an appellation is considered necessary to be ascribed to the proposed development (which the applicant considers is not necessary), then there is no reason why the proposed development cannot be treated as an application for multiple dwellings.
Respondent's submissions
49 In summary, the respondent submits that the proposed development should be refused for the following reasons:
a) The R-Codes have been incorporated into the Scheme by cl 4.2.2 of LPS 4.
b) Clause 4.2.2 is not inconsistent with cl 67(c) of the Deemed Provisions.
c) The more specific cl 4.2.2 should not be read down by the general cl 67 of the Deemed Provisions.
d) It would be unworkable for local governments in having consideration of the R-Codes to not first consider where a proposed development fits within the definitions of single house, grouped dwelling and multiple dwelling.
e) In applying the R-Codes, it is appropriate to define the proposed development as a grouped dwelling as no part of even one dwelling sits vertically above any part of another dwelling.
f) Where the proposed development is encompassed by the definition of grouped dwelling it cannot be a multiple dwelling as the definitions are mutually exclusive and, inany event, as no part of the plot ratio area of one dwelling sits above the plot ratio area of another the proposed development cannot be categorised as a multiple dwelling.
g) That the proposed development does not meet either the deemedtocomply or the design principles for a grouped dwelling in Pt 5 of the R-Codes and should be refused.
The evidence
50 The applicant provided a witness statement from Mr Allerding who provided expert planning evidence at paragraph 51 that:
It is accepted that if one is to take a literal interpretation of grouped dwelling, then the development could be contemplated as a grouped dwelling in circumstances where no dwelling is placed wholly or partly vertically above the other. Similarly, it is accepted that on a literal interpretation of a multiple dwelling, that it relies on the requirement for one part of the plot ratio area of a dwelling to be vertically above another.
51 Mr Allerding's evidence then largely focusses on providing expert evidence to support the applicant's submission that the R-Codes should be departed from in this instance. Mr Allerding concludes his statement with suggesting that the RCodes should be amended to allow a more flexible opportunity for this form of development.
52 The applicant also provided a witness statement from Mr Ron Acott which consists of advice he provided to the applicant as to which form of strata title should be created for the previous approval and the proposed development with both proposals consistent built form strata rather than surveystrata.
53 The respondent provided two witness statements from expert town planner Mr Christopher Valentine, Statutory Planning Officer employed by the respondent. Mr Valentine details the history of the previous approval and the proposed development as well as providing his opinion that the proposed development did not fit the definition of a multiple dwelling under the RCodes.
54 The issues in dispute between the parties on these preliminary issues are, in essence, legal issues concerning the interpretation of the Scheme. None of the witnesses were required for crossexamination on their evidence. However, there were submissions as to the weight to be afforded to the evidence, in particular concerning the fact that Mr Allerding spends a considerable portion of his statement summarising and providing an opinion on legal issues and that Mr Acott's statement only concerns legal issues.
55 The Tribunal is in agreement with the submissions of the respondent that neither Mr Allerding nor Mr Acott were qualified to provide expert legal opinion that is more appropriately dealt with by way of counsel's submissions. Indeed, counsel for the applicant made written and oral submissions on these issues.
56 Therefore, to the extent that Mr Allerding provides legal opinion or makes submissions in his statement (see paragraphs 55 - 62, 87), the Tribunal affords no weight to that portion of his statement. For the same reason, the Tribunal affords no weight to the statement of Mr Acott except to take into account that counsel made submissions on those matters. Mr Acott's statement, and counsel's submissions on this topic, may have been relevant to the Tribunal's consideration as to whether to depart from the RCodes, however for the reasons which follow that issue does not arise to be determined by the Tribunal in these proceedings.
Consideration
57 For the reasons which follow, the Tribunal has taken the view that not all of the submissions made by the applicant require consideration and determination in order to finally determine these proceedings, in particular the issue as to whether the RCodes as a State planning policy should be departed from in this instance. If the Tribunal took the view that the issue as to whether the R-Codes should be departed from was required to be determined in these proceedings, there may well be good reasons in this instance to depart. However, no findings are made in that regard as the Tribunal considers that issue is not the pertinent issue that arises to be determined in these proceedings for the reasons which follow.
58 The starting point, of course, is the Scheme which has legislative force. The ordinary principles of statutory interpretation apply to the interpretation of LPS 4, whilst bearing in mind that schemes are generally drafted by town planners, not parliamentary counsel.
59 Potentially determinative of this matter, the Tribunal must consider whether the introduction of the Deemed Provisions produces an inconsistency between cl 4.2.2 of the Scheme and cl 67(c) of the Deemed Provisions such that, by operation of s 257B(3) of the PD Act, cl 67(c) prevails over cl 4.2.2 of the Scheme.
60 Put another way, the threshold preliminary issue to be determined is the current status of the RCodes in the Scheme as it applies to the proposed development. That threshold preliminary issue arises because of the introduction of cl 67(c) of the Deemed Provisions and the question arises whether that has altered the status of the RCodes such that the Tribunal must now only have 'due regard' to the RCodes as a policy and the Tribunal may depart from the RCodes. As opposed to determining under cl 4.2.2 of the Scheme whether the proposed development conforms with the RCodes, and if it does not, that being determinative of the matter in circumstances where there is no power to vary the Scheme.
61 The Tribunal does not agree with the submission made by the applicant that the RCodes have not been incorporated into the Scheme by the operation of cl 4.2.2 of the Scheme and therefore the RCodes are simply a policy like any other policy which can be departed from if there are good reasons to do so in a particular case. The Tribunal finds that the RCodes are incorporated into the Scheme by the plain and ordinary words of cl 4.2.2 of LPS 4 and by a contextual analysis of the Scheme. By the operation of cl 4.2.2 of the Scheme the RCodes have been elevated above a State planning policy.
62 Therefore, the Tribunal finds that the critical issue in the present proceedings is the statutory interpretation of the Scheme, in particular the interrelationship between cl 4.2.2 of the Scheme and cl 67(c) of the Deemed Provisions. In this regard, the present proceedings can be distinguished from ALH Group Property Holdings.
63 In interpreting the Scheme, the Tribunal must consider first whether cl 4.2.2 of the Scheme is inconsistent with cl 67(c) of the Deemed Provisions. It is noted that LPS 4, prior to the introduction of the Deemed Provisions already had cl 10.2 from the previous Model Scheme Text and which was in almost identical terms to cl 67 of the Deemed Provisions, existing alongside cl 4.2.2 in the Scheme. Equally, cl 25 of the new 'Model Scheme Text' found in Sch 1 of the LPS Regulations (when it comes into force) will exist alongside cl 67 of the Deemed Provisions, albeit with different wording to cl 4.2.2 of LPS 4.
64 The Tribunal does not agree with the applicant's submission that the introductory words to cl 4.2.2 '[u]nless otherwise provided for in the Scheme' means that cl 67 of the Deemed Provisions, whilst not inconsistent, has preeminence over cl 4.2.2 of LPS 4 therefore the Tribunal is only to have 'due regard' to the R-Codes like any other policy. The applicant's suggested interpretation would result in cl 4.2.2 of LPS 4 having no effect, and indeed also cl 10.2 of the Scheme which existed before the introduction of the Deemed Provisions. The Tribunal is of the view that those introductory words mean that if another specific provision of the Scheme seeks to alter the requirement to comply with a particular provision of the RCodes or vary the RCodes or ability to vary the Scheme, than that clause may well prevail over the requirement in cl 4.2.2 of the Scheme. The Tribunal also agrees with the respondent's submission that cl 67 is a general provision and, as a general principle of statutory interpretation, a general provision should not be utilised to read down the specific provision found in cl 4.2.2 of LPS 4.
65 Puma Energy at [46] found that cl 67 of the Deemed Provisions 'seeks to provide a comprehensive and exhaustive set of considerations for the determination of a development application'. That finding does not mean that all of the subclauses of cl 67 of the Deemed Provisions are equal in weight to one another. The extent, or context, as to what 'due regard' means for each subclause of cl 67 of the Deemed Provisions requires detailed consideration as to the weight to be afforded a particular matter in the circumstances of each case.
66 Therefore, the Tribunal finds that 'due regard' as it is employed in the chapeau to cl 67 of the Deemed Provisions may have a different meaning or emphasis or weight afforded to it, depending on the particular facts and circumstances of a proposed development, the context and the subclause, rather than the meaning of the phrase as found in ALH Group Property Holdings.
67 For instance, cl 67(a) cannot mean that only 'due regard' as found in ALH Group Property Holdings is given to the provisions of the Scheme. The phrase 'due regard' cannot have been intended to diminish the legislative effect of the Scheme.
68 However, having given the example of cl 67(a), it would seem apparent that the meaning of 'due regard' as found in ALH Group Property Holdings would apply to consideration of policies and many of the other considerations listed in the subclauses of cl 67 of the Deemed Provisions depending on the facts and circumstances of any particular proposed development.
69 Clause 4.2.2 of the Scheme and cl 67(c) of the Deemed Provisions are not seeking to perform precisely the same function as found in Puma Energy, indeed the functions are quite different. Clause 67 of the Deemed Provisions is an exhaustive list of considerations for determining development applications and cl 4.2.2 is elevating the status of the RCodes from a State planning policy to giving it legislative effect by providing that the development of land for any residential purpose dealt with by the RCodes is to conform with the RCodes.
70 Therefore, the Tribunal finds that the functions being performed by cl 4.2.2 of the Scheme are not inconsistent with cl 67(c) of the Deemed Provisions and accordingly, s 257B(3) has no operative effect.
Issue 1: When determining an application that is subject to the RCodes, is it necessary to determine whether the proposed development is a single house or a grouped dwelling or a multiple dwelling?
71 The Tribunal finds that, when determining an application that is required to conform to the R-Codes under cl 4.2.2 of the Scheme, it is necessary to determine whether the proposed development is a single house or a grouped dwelling or a multiple dwelling.
72 The Tribunal agrees with the respondent's submission that to do otherwise would be unworkable. In circumstances, such as the present, where there is no discretion to depart from the R-Codes (noting that there is considerable discretion in applying the design principles) or any discretion to vary the Scheme, it is essential to determine which type of dwelling is proposed in order to determine which part of the R-Codes to utilise to assess the proposed development against the deemedtocomply and/or design principles in order to determine whether the proposed development conforms with the RCodes as required under cl 4.2.2 of the Scheme. It is also necessary to determine whether cl 61 of the Deemed Provisions apply which results in no approval being required.
73 Therefore, the Tribunal finds that the answer to question 1 is 'yes'.
Issue 2: If the answer to question 1 is yes, are the buildings contained within the proposed development:
(a) 'grouped dwellings' within the meaning of that term as defined in the RCodes; or
(b) 'multiple dwellings' within the meaning of that term as defined in the RCodes?
74 It is agreed amongst the parties and the expert town planners that the proposed development does not include any dwelling that is placed wholly or partly vertically above another and no evidence was provided that the remainder of the definition of grouped dwelling in the R-Codes applied to the proposed development. Therefore, the Tribunal finds that the proposed development fairly and squarely fits the definition of grouped dwelling under the R-Codes and should be classified as such.
75 Pursuant to the definition of multiple dwelling in the R-Codes, the proposed development cannot be classified as a multiple dwelling when it is classified as a grouped dwelling.
76 Therefore, the Tribunal finds that the answer to question 2 is that the proposed development is a grouped dwelling and in accordance with the other findings by the Tribunal in this matter, the proposed development should be assessed under Pt 5 of the RCodes.
77 As a result of the findings made by the Tribunal, there is no need to consider or answer question 3.
Conclusion
78 In conclusion, the Tribunal makes the following findings:
a) The R-Codes have been incorporated into the Scheme in cl 4.2.2 which operates to elevate the R-Codes above consideration as only policy to which 'due regard' as found in ALH Group Property Holdings should be given.
b) Clause 4.2.2 is not inconsistent with cl 67(c) and therefore s 257B(3) of the PD Act has no application.
c) By operation of cl 4.2.2 of the Scheme, the proposed development is required to conform with the provisions of the R-Codes.
d) The proposed development is a grouped dwelling as defined in the R-Codes because no part of any dwelling sits vertically above another.
e) The proposed development does not conform with the RCodes in that it does not satisfy the deemedtocomply provisions or the design principles in Pt 5 of the RCodes.
79 Accordingly, the Tribunal finds in the exercise of its discretion that it is consistent with orderly and proper planning that the correct and preferable decision on review is to refuse to approve the proposed development. These findings by the Tribunal finally determine the proceedings.
Orders
Therefore, the Tribunal orders as follows:
1. The review is dismissed.
2. The decision of the respondent on 24 January 2017 refusing the proposed development is affirmed.
I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D QUINLAN, MEMBER
1
8
7