KAPILA and CITY OF STIRLING
[2016] WASAT 59
•24 MAY 2016
KAPILA and CITY OF STIRLING [2016] WASAT 59
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 59 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:376/2015 | 22 MARCH 2016 (FURTHER WRITTEN SUBMISSIONS FILED ON 26 APRIL 2016, 12 MAY 2016 AND 19 MAY 2016) | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) MS D QUINLAN (MEMBER) | 24/05/16 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of respondent made on 24 September 2015 to refuse to extend term of development approval granted on 30 October 2012 in relation to No 85 (Lot 209) Princess Road, Balga, affirmed | ||
| B | |||
| PDF Version |
| Parties: | SHRUTI KAPILA CITY OF STIRLING |
Catchwords: | Town planning Application for extension of term of development approval in which approved development may be substantially commenced before development approval lapses Application for further extension of term of development approval made under provision of local planning scheme enabling a written request to be made to Council for an extension of term at any time prior to the expiry of the approval period in another provision of local planning scheme Council had already granted one year extension of term of development approval Council refused further extension application Whether, on proper interpretation of provision, term of development approval can be extended more than once Relevant considerations in exercising discretion to extend term of development approval Whether planning framework changed substantially since development approval granted Whether development would likely receive approval now Whether applicant actively and relatively conscientiously pursued implementation of development approval Nature of review proceedings Whether Tribunal 'stands in the shoes' of original decisionmaker as at date when reviewable decision was made or as at date of Tribunal review |
Legislation: | City of Stirling Local Planning Scheme No 3, cl 1.4, cl 5.3.4, cl 10.5.1, cl 10.5.1(a), cl 10.5.2 Interpretation Act 1984 (WA), s 5, s 10(c), s 37(1), s 64(1) Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 71(a), cl 76(1), cl 76(2), cl 77(1), cl 77(1)(a), cl 77(2)(a), cl 77(4) Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004 (WA), s 27(2), s 29(1), s 29(5)(b) State Planning Policy 3.1 Residential Design Codes |
Case References: | Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77 Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 Scolaro and Shire of Waroona [2014] WASAT 37; (2014) 85 SR (WA) 38 Thomas and City of Stirling [2013] WASAT 110; (2013) 84 SR (WA) 240 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent made on 24 September 2015 to refuse to extend the term of the development approval granted on 30 October 2012 in relation to No 85 (Lot 209) Princess Road, Balga, is affirmed. |
Summary | Dr Shruti Kapila sought review of the decision of the City of Stirling to refuse her application for a further extension of the term of a development approval within which the approved development may be substantially commenced under a provision of the applicable local planning scheme. The term of the development approval had already been extended once by the City. The approved development involved a two storey building comprising nine onebedroom multiple dwellings.,The Tribunal determined that the application for review should be dismissed and the decision of the City to refuse to extend the term of the development approval should be affirmed.,The Tribunal held that, on the proper interpretation of the provision of the local planning scheme under which Dr Kapila sought an extension of the term of the development approval, the term of a development approval cannot be extended more than once. Dr Kapila's application for a further extension of the term of the development approval therefore had to be refused.,The Tribunal also determined that, if the term of the development approval could be extended more than once under the relevant provision, the Tribunal would refuse to further extend the term of the development approval in the exercise of discretion in the circumstances of the case. Although the Tribunal was satisfied, on balance, that Dr Kapila had actively and relatively conscientiously pursued the implementation of the development approval during the extended term, and even if the approved development were considered to be consistent with a 32 apartment multiple dwelling development on an adjacent property and would maintain a consistent streetscape, the Tribunal would decline the application for a further extension of the term, because the planning framework has changed substantially since the development approval was granted and, indeed, the development would be prohibited and would not receive development approval now.,In this regard, the Tribunal determined that a provision that has been recently inserted into the local planning scheme applies to the site and limits the maximum number of multiple dwellings that can now be approved on the site to three. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KAPILA and CITY OF STIRLING [2016] WASAT 59 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT)
- MS D QUINLAN (MEMBER)
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Application for extension of term of development approval in which approved development may be substantially commenced before development approval lapses Application for further extension of term of development approval made under provision of local planning scheme enabling a written request to be made to Council for an extension of term at any time prior to the expiry of the approval period in another provision of local planning scheme Council had already granted one year extension of term of development approval Council refused further extension application Whether, on proper interpretation of provision, term of development approval can be extended more than once Relevant considerations in exercising discretion to extend term of development approval Whether planning framework changed substantially since development approval granted Whether development would likely receive approval now Whether applicant actively and relatively conscientiously pursued implementation of development approval - Nature of review proceedings - Whether Tribunal 'stands in the shoes' of original decisionmaker as at date when reviewable decision was made or as at date of Tribunal review
Legislation:
City of Stirling Local Planning Scheme No 3, cl 1.4, cl 5.3.4, cl 10.5.1, cl 10.5.1(a), cl 10.5.2
Interpretation Act 1984 (WA), s 5, s 10(c), s 37(1), s 64(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 (deemed provisions), cl 71(a), cl 76(1), cl 76(2), cl 77(1), cl 77(1)(a), cl 77(2)(a), cl 77(4)
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 29(1), s 29(5)(b)
State Planning Policy 3.1 Residential Design Codes
Result:
Application for review dismissed
Decision of respondent made on 24 September 2015 to refuse to extend term of development approval granted on 30 October 2012 in relation to No 85 (Lot 209) Princess Road, Balga, affirmed
Summary of Tribunal's decision:
Dr Shruti Kapila sought review of the decision of the City of Stirling to refuse her application for a further extension of the term of a development approval within which the approved development may be substantially commenced under a provision of the applicable local planning scheme. The term of the development approval had already been extended once by the City. The approved development involved a two storey building comprising nine onebedroom multiple dwellings.
The Tribunal determined that the application for review should be dismissed and the decision of the City to refuse to extend the term of the development approval should be affirmed.
The Tribunal held that, on the proper interpretation of the provision of the local planning scheme under which Dr Kapila sought an extension of the term of the development approval, the term of a development approval cannot be extended more than once. Dr Kapila's application for a further extension of the term of the development approval therefore had to be refused.
The Tribunal also determined that, if the term of the development approval could be extended more than once under the relevant provision, the Tribunal would refuse to further extend the term of the development approval in the exercise of discretion in the circumstances of the case. Although the Tribunal was satisfied, on balance, that Dr Kapila had actively and relatively conscientiously pursued the implementation of the development approval during the extended term, and even if the approved development were considered to be consistent with a 32 apartment multiple dwelling development on an adjacent property and would maintain a consistent streetscape, the Tribunal would decline the application for a further extension of the term, because the planning framework has changed substantially since the development approval was granted and, indeed, the development would be prohibited and would not receive development approval now.
In this regard, the Tribunal determined that a provision that has been recently inserted into the local planning scheme applies to the site and limits the maximum number of multiple dwellings that can now be approved on the site to three.
Category: B
Representation:
Counsel:
Applicant : Mr GMG McIntyre SC
Respondent : Mr A Roberts
Solicitors:
Applicant : Rankin Ellison
Respondent : McLeods
Case(s) referred to in decision(s):
Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Scolaro and Shire of Waroona [2014] WASAT 37; (2014) 85 SR (WA) 38
Thomas and City of Stirling [2013] WASAT 110; (2013) 84 SR (WA) 240
Introduction
1 Dr Shruti Kapila seeks review, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the City of Stirling (City or Council) to refuse Dr Kapila's application for a further extension of the term of a development approval under cl 10.5.2 of the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme).
2 On 30 October 2012, the Council granted conditional development approval under LPS 3 for a two storey building comprising nine onebedroom multiple dwellings at No 85 (Lot 209) Princess Road, Balga (site) (development approval). The site has an area of 822m² and is zoned Residential with a residential density coding of R40 under the Scheme.
3 At all material times, cl 10.5.1 and cl 10.5.2 of LPS 3 have stated as follows:
10.5.1 Where the Council grants planning approval for the development of land -
a) the development approved is to be substantially commenced within 2 years, or such other period as specified in the approval, after the date of the determination; and
b) the approval lapses if the development has not substantially commenced before the expiration of that period.
10.5.2 A written request may be made to the Council for an extension of the term of planning approval at any time prior to the expiry of the approval period in Clause 10.5.1.
4 The development approval does not specify 'such other period' for the purposes of cl 10.5.1(a) of LPS 3 within which the approved development is to be substantially commenced. Consequently, subject to approval of an application for an extension of the term of the development approval under cl 10.5.2 of LPS 3, cl 10.5.1 of LPS 3 required that the approved development was to be substantially commenced 'within 2 years … after the date of the determination', that is, by 30 October 2014, and provided that 'the approval lapses if the development has not been substantially commenced before the expiration of that period'. Indeed, the development approval expressly states 'Expiry Date: 30 October 2014'.
5 By letter to the City dated 8 September 2014, Dr Kapila sought a one year extension of the term of the development approval pursuant to cl 10.5.2 of LPS 3. By letter dated 30 October 2014, the City informed Dr Kapila that the term of the development approval had been extended to 30 October 2015 pursuant to cl 10.5.2 of LPS 3. The City's letter then stated as follows:
Failure to substantially commence development before 30 October 2015 will render the subject application DA12/1507 expired. Should you wish to proceed with development after this time; a new Development Application will need to be submitted to the City for assessment.
6 By letter to the City dated 16 September 2015, Dr Kapila sought a further extension of the term of the development approval pursuant to cl 10.5.2 of LPS 3. Dr Kapila's letter is in the following terms:
I write to request extension to the [development approval] for my property at 85 Princess Road, Balga.
Extension has already been granted before. All appropriate actions were taking place to commence building when my husband was diagnosed with a critical chronic medical condition in February 2015.
As a result of this diagnosis the development was not able to commence as planned.
I have since recommenced our actions. A builder has been engaged, all reports completed, and very soon we will be applying for a demolition certificate.
I expect to have all applications to council within weeks, and therefore will be ready to substantially commence as per the requirements of the [development approval]. However, the [development approval] will expire within weeks, and we write to request an extension to the [development approval] in order to cover us in the event that there is any delay.
I thank you in advance for your help. I would be happy to supply any relevant medical certificates or specialist reports as required.
7 By letter dated 24 September 2015, the City informed Dr Kapila that her request for a further extension of the term of the development approval had been refused. The City's letter then stated as follows:
Failure to substantially commence development before 30 October 2015 will render the subject application DA12/1507 expired. Should you wish to proceed with development after this time; a new Development Application will need to be submitted to the City for assessment.
8 On 19 October 2015, Dr Kapila sought review by the Tribunal of the City's decision to refuse her request for a further extension of the term of the development approval under cl 10.5.2 of LPS 3.
9 Also on 19 October 2015, the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) came into force, including the deemed provisions in all local planning schemes (including LPS 3) in Sch 2 of the LPS Regulations (deemed provisions). Clause 77(1)(a) of the deemed provisions enables an owner of land in respect of which development approval has been granted to make an application 'requesting the local government … to amend the approval so as to extend the period within which any development approval must be substantially commenced'. Clause 77(2)(a) of the deemed provisions states that an application under cl 77(1) 'is to be made in accordance with the requirements of Part 8 and dealt with under this Part as if it were an application for development approval'. Clause 77(4) of the deemed provisions states that '[t]he local government may determine an application made under subclause (1)' by approving it, with or without conditions, or refusing it. Clause 76(2) of the deemed provisions confers a right of review by the Tribunal upon the landowner of a determination by the local government 'to refuse to amend … a development approval on an application made under clause 77' (see paragraph (c) of the definition of 'reviewable determination' in cl 76(1) of the deemed provisions).
10 The City contended that Dr Kapila's application for a further extension of the term of the development approval 'is now subject to clause 77 of the Deemed Provisions', with the consequence that, under cl 77(2)(a) of the deemed provisions, the application is to be 'dealt with … as if it were an application for development approval'.
11 However, when, on 16 September 2015, Dr Kapila applied for a further extension of the term of the development approval, she could not have done so under cl 77(1)(a) of the deemed provisions, as the deemed provisions were not then in effect. Further, when, on 24 September 2015, the City informed Dr Kapila that it had refused her request for a further extension of the term of the development approval, it could not have made that determination under cl 77(4) of the deemed provisions, as the deemed provisions were not then in effect. Furthermore, although Dr Kapila sought review of the City's determination to refuse her request for a further extension of the term of the development approval on the day that the deemed provisions came into force, she did not, in form or substance, seek review under cl 76(2) of the deemed provisions of a determination by the City 'to refuse to amend … a development approval on an application made under clause 77 [of the deemed provisions]', because she had not made an application to the City under that provision.
12 The application for review is therefore to be determined under cl 10.5.2 of LPS 3.
13 There is a threshold issue in this review as to whether, on the proper interpretation of cl 10.5.2 of LPS 3, the term of a development approval can be extended more than once. If the term of a development approval can be extended more than once, then the Tribunal must determine whether it is appropriate to grant a further extension of the term of the development approval in the exercise of its discretion.
Issues for determination
14 The following two principal issues arise for determination in this review:
1) Whether, on the proper interpretation of cl 10.5.2 of LPS 3, the term of a development approval can be extended more than once.
2) If the answer to issue (1) is 'yes', whether it is appropriate in the exercise of discretion to grant a further extension of the term of the development approval, having regard to:
i) whether the planning framework has changed substantially since the development approval was granted;
ii) whether the development would likely receive approval now;
iii) whether Dr Kapila has actively and relatively conscientiously pursued the implementation of the development approval;
iv) whether the approved development on the site is consistent with a multiple dwelling development on an adjacent property; and
v) (if relevant to the Tribunal's exercise of discretion in this case) whether (as contended by Mr Ernest Samec, a town planner called by Dr Kapila) the site is 'ideally located for higher density housing'.
Can the term of a development approval be extended more than once under cl 10.5.2 of LPS 3?
16 On the basis of submissions addressed below, Dr Kapila contends that 'there is nothing under [LPS 3] or at law that limits an extension to a first approved period only'. In contrast, the City contends that '[t]he requirements of cl 10.5.2 [of LPS 3] effectively mean that only one extension can be granted'.
17 In our view, for reasons which follow, on the proper interpretation of cl 10.5.2 of LPS 3, the term of a development approval cannot be extended more than once.
18 As noted earlier, cl 10.5.1 and cl 10.5.2 of LPS 3 state as follows:
10.5.1 Where the Council grants planning approval for the development of land -
a) the development approved is to be substantially commenced within 2 years, or such other period as specified in the approval, after the date of the determination; and
b) the approval lapses if the development has not substantially commenced before the expiration of that period.
10.5.2 A written request may be made to the Council for an extension of the term of planning approval at any time prior to the expiry of the approval period in Clause 10.5.1.
19 The principles in relation to the proper interpretation of provisions of local planning schemes were set out by the Tribunal in Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 at [20] [21] as follows:
Under s 87(4) of the PD Act, [a local planning scheme] 'has full force and effect as if it were enacted by [the PD Act]'. The Court of Appeal has recently said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 4647 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
(City of Kwinana v Lamont [2014] WASCA 112 at [47]).
In giving the words of a planning scheme the meaning that the maker of the scheme is taken to have intended them to have, the terms of the planning instrument:
… will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose.
(Chiefari v Brisbane City Council[2005] QPELR 500 at 502 (Wilson J); referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]).
20 The clear grammatical meaning of cl 10.5.2 of LPS 3 is that the term of a development approval can be extended only once. Clause 10.5.2 states that '[a] written request may be made to the Council for an extension of the term of planning approval at any time prior to the expiry of the approval period in Clause 10.5.1' (emphasis added). The 'approval period in Clause 10.5.1' is (as stated in paragraph (a) of cl 10.5.1) 'within 2 years, or such other period as specified in the approval, after the date of the determination'. This is a clear textual indication that the term of a development approval can be extended only once under cl 10.5.2 of LPS 3. In circumstances where the term of a development approval has already been extended under cl 10.5.2 of LPS 3, a written request for a further extension of the term will not be made 'prior to the expiry of the approval period in Clause 10.5.1', but rather at some point after the expiry of the approval period in cl 10.5.1 of LPS 3. This is in fact what occurred in the present case where Dr Kapila applied for a further extension of the term of the development approval on 16 September 2015, which was about 10½ months after the expiry of the approval period in cl 10.5.1 of LPS 3.
21 Furthermore, in circumstances where the term of a development approval has been extended under cl 10.5.2 of LPS 3, the extended term of the development approval is not 'such other period as specified in the approval' under cl 10.5.1 of LPS 3. Obviously, the extended term is not 'specified in the approval' or otherwise there would not have been a need for an extension of the term of the development approval.
22 As noted earlier, a provision of a planning scheme will be taken to have been intended by its maker to have a practical and commonsense meaning, which will best achieve its evident planning purpose. The grammatical meaning of cl 10.5.2 of LPS 3, under which the term of a development approval can be extended only once, is entirely consistent with reading the provision in a practical and commonsense manner, which will best achieve its evident planning purpose.
23 The evident planning purpose of cl 10.5.2 of LPS 3 is to enable an extension of the period within which an approved development must be substantially commenced without the need to obtain a fresh development approval. However, the planning framework, including the Scheme itself as well as State and local planning policies, under which a development application is to be assessed, is hardly static. Indeed, by its nature, strategic planning is fluid and continually evolving as a result of experience and new and different strategic policy approaches and emphases in environmental planning, with the consequence that the planning framework may change over time. A proposed development which was permissible at one point in time may become prohibited under the applicable planning framework at a later point in time. Furthermore, even if a proposed development remains permissible under the applicable planning framework, the likelihood of its approval, or the need for it to be modified, amended or conditioned to obtain approval, may change as the applicable planning framework evolves.
24 It is therefore entirely practical and sensible, and consistent with orderly and proper planning, for cl 10.5.2 of LPS 3 to allow the term of a development approval to be extended only once, without the approved development being subject to a fresh development assessment of a development application under the applicable planning framework as it then stands, before the development can be commenced or carried out.
25 Dr Kapila submits:
The reasonable and proper interpretation to be drawn from those provisions is that an extension may be sought and granted in relation to 'the approved [sic approval] period' and, if an extension has on one occasion been requested and granted, the period specified in that grant of the request is 'the approved [sic approval] period' for the purposes [of] clause 10.5.2 and the 'period as specified in the approval' for the purposes of clause 10.5.1.
26 However, the submission that 'the period specified in that grant of the request is ''the approved [sic approval] period'' for the purposes [of] clause 10.5.2' ignores the words that follow the words 'the approval period' in cl 10.5.2, namely 'in Clause 10.5.1'. A written request for an extension of the term of a development approval must be made under cl 10.5.2 'prior to the expiry of the approval period in Clause 10.5.1' which is '2 years, or such other period as specified in the approval, after the date of the determination'. Furthermore, 'the period specified in that grant of the request' is not the 'period as specified in the approval' for the purposes of cl 10.5.1, because, had that period been specified in the approval for the purposes of cl 10.5.1, there would have been no need for an extension of the term of the development approval in the first place.
27 Dr Kapila also submits that:
These provisions of the [Scheme] and the interpretation and application of them suggested above are not inconsistent with the Planning and Development (Local Planning Scheme) Regulations 2015, clause 71(a), which provides that
the development must be substantially commenced
(i) if no period is specified in the approval within the period of 2 years commencing on the date on which the determination is made; or
(ii) if a period is specified in the approval within that period; or
(iii) in either case within a longer period approved by the local government on an application made under clause 77(1)(a); … (emphasis added)
29 Dr Kapila relies on s 10(c) of the Interpretation Act 1984 (WA) (Interpretation Act) which states that '[i]n any written law … words in the singular number include the plural …'. Dr Kapila submits that:
[T]o the extent that a view might be taken that clause 10.5.1 of the [Scheme] and the [deemed provisions] speak in the singular of 'the approval' and might be interpreted as thus precluding more than one approval which might be the subject of a request for an extension of the approval period, [s 10(c) of the Interpretation Act] allows for an interpretation of those provisions which allows for more than one 'period' sequentially and more than one 'extension' of the term of the planning approval.
30 LPS 3 is a 'written law' for the purposes of the Interpretation Act, because the term 'written law' is defined in s 5 of the Interpretation Act to include 'subsidiary legislation' and that term is defined in the same section to include a planning scheme. However, as the City submits, '[p]luralisation must be undertaken so that the particular written law continues to operate in a logical way according to its evident purpose' and 'even if read in this way, whether there is one or more requests[,] they can only be made ''at any time prior to the expiry of the approval period in clause 10.5.1"'. As explained earlier, these words clearly indicate that the term of a development approval can only be extended once under cl 10.5.2 of LPS 3.
31 Dr Kapila also relies on s 64(1) of the Interpretation Act which states as follows:
Where in a written law a time is fixed or allowed for doing any act or thing or taking any proceeding and power is given to a court or other authority to extend that time, such power may be exercised by the court or other authority although the application for an extension is not made until after the expiration of the time fixed or allowed.
32 Dr Kapila submits that:
The application of [s 64(1) of the Interpretation Act] countermands the time limitation upon a written request for an extension set by clause 10.5.2 of the [Scheme] and supports the conclusion that the period within which substantial commencement of the approved development may be extended upon an application, which happens to be a second application, is unlimited by regard to the fact of a previous application.
33 This submission is incorrect. As explained above, LPS 3 is a 'written law' for the purpose of the Interpretation Act. However, s 64(1) of the Interpretation Act merely enables a power to extend the time fixed or allowed for doing any act or thing that is given by a written lawto be exercised although the application for an extension of the time is not made until after the expiration of the time fixed or allowed. Section 64(1) of the Interpretation Act does not itself create or confer a power to extend a time fixed or allowed for doing an act or thing where the power to extend the time fixed or allowed for doing the act or thing is not given by a written law. In this sense, s 64(1) of the Interpretation Act is procedural, rather than substantive.
34 As we have determined earlier, on its proper interpretation, cl 10.5.2 of LPS 3 gives a power to the Council (and the Tribunal on review) to extend the term of a development approval only once. The relevant effect of s 64(1) of Interpretation Act is that the power to extend the term of a development approval once may be exercised by the Council (and the Tribunal on review) even where the application for that extension was not made until after the expiration of the term of the development approval. However, s 64(1) of the Interpretation Act does not create or confer a power that is not given by cl 10.5.2 of LPS 3. As cl 10.5.2 of LPS 3 does not create or confer a power to extend the term of a development approval more than once, s 64(1) of the Interpretation Act has no application in the circumstances of this case.
35 As, on the proper interpretation of cl 10.5.2 of LPS 3, the term of a development approval cannot be extended more than once, Dr Kapila's application for a further extension of the term of the development approval must be refused.
Should the Tribunal exercise discretion to further extend the term of the development approval?
36 This issue does not arise, because the Tribunal does not have power and therefore discretion to extend the term of a development approval where the term has already been extended once. However, as the parties debated this issue at length and for completeness, we will address it.
37 If the term of the development approval could be extended more than once under cl 10.5.2 of LPS 3, the Tribunal would have refused to further extend the term of the development approval in the exercise of discretion in the circumstances of this case, for the following reasons.
38 The Scheme does not prescribe any particular matters for consideration in the exercise of discretion as to whether to extend the term of a development approval under cl 10.5.2 of LPS 3. However, it is common ground between the parties that the three considerations identified by the Tribunal in Claymont Westcapital Pty Ltd and East Perth Redevelopment Authority [2008] WASAT 77 (Claymont), in the context of determining whether to approve an application to amend a development approval by stipulating an additional period of six months for substantial commencement of the approved development under the East Perth Redevelopment Scheme, are each also relevant considerations in the exercise of the Tribunal's discretion under cl 10.5.2 of LPS 3 in this case. In Claymont, the Tribunal amended the development approval for the following reasons at [51] [53]:
The Tribunal considers that amending the development consent by stipulating an additional period of six months for substantial commencement of the development is consistent with orderly and proper planning, because:
• the planning framework has not changed substantially;
• the development would likely receive approval today; and
• Claymont has actively and relatively conscientiously pursued implementation of the development consent to the point that it has a building licence to carry out substantial commencement in terms of the basement, it has a builder, it has accepted deposits for 15 units, and it is ready to start construction within about four weeks.
While there were some delays on Claymont's part, particularly an initial five-month delay in responding to EPRA's request for information, it has generally negotiated a complex regulatory system, incorporating several statutory authorities, almost to time, in a difficult environment in terms of accessing builders and consultants. Claymont ultimately received the building licence only eight days after the end of the two-year period for substantial commencement.
Furthermore, as Mr Tsaknis submits, it would actually be contrary to orderly and proper planning to refuse to approve the amendment, because it facilitates the carrying out of an appropriate development within a relatively short period of time.
39 We agree that the three considerations identified in Claymont, namely:
• whether the planning framework has changed substantially since the development approval was granted;
• whether the development would likely receive approval now; and
• whether the holder of the development approval has actively and relatively conscientiously pursued the implementation of the development approval,
- are each relevant matters to be considered and balanced in the exercise of discretion under cl 10.5.2 of LPS 3.
40 However, the range of considerations under cl 10.5.2 of LPS 3 is not closed. Dr Kapila also raised the issue of whether the approved development on the site is consistent with a multiple dwelling development on an adjacent property as a fourth matter for consideration in the circumstances of this case. In his witness statement, Mr Samec sought, in effect, to raise a fifth matter for consideration, namely whether the site is 'ideally located for higher density housing'.
Has the planning framework changed substantially since the development approval was granted?
41 On 20 October 2015, Amendment No 32 to LPS 3 was published in the Government Gazette and inserted cl 5.3.4 into the Scheme with effect from that date. Clause 5.3.4 of LPS 3 states as follows:
Notwithstanding the provisions of the Residential Design Codes, where land with a residential density code of R40 is located outside the area of a walkable catchment of 800 metres around an activity centre, specialised centre or railway station on a high frequency rail route as shown on the Scheme Maps or as shown on a map contained in a schedule of the Scheme, the development of multiple dwellings on the land:
a) shall be subject to the average site area per grouped dwelling requirement specified by the Residential Design Codes for grouped dwellings on land with an R40 residential density code; and
b) shall not be subject to any maximum plot ratio requirements specified by the Residential Design Codes.
42 Concurrently with the insertion of cl 5.3.4 into LPS 3, the 'Scheme Maps' referred to in cl 5.3.4 were amended. It is common ground between the parties that the Scheme Map that includes the site (namely, Map 3) shows the site as located within a blue-dashed area which is identified in the legend on the Scheme Map as 'R40 areas affected by clause 5.3.4 in the scheme text'.
43 As explained below, there is a dispute between the parties as to whether, on the proper interpretation of cl 5.3.4 of LPS 3, the site 'is located outside the area of a walkable catchment of 800 metres around an activity centre, specialised centre or railway station on a high frequency rail route as shown on the Scheme Maps', within the meaning of that provision, and therefore whether that provision now applies to the site. However, it is common ground between the parties that if cl 5.3.4 of LPS 3 applies to the site, then it imposes upon the development of multiple dwellings on the site, the average site area per grouped dwelling requirement of 220m² per dwelling specified in Table 1 of State Planning Policy 3.1 Residential Design Codes (RCodes) in relation to land coded R40.
44 If cl 5.3.4 of LPS 3 applies to the site, then, as the site has an area of 822m² and applying the average site area per grouped dwelling requirement of 220m² to the development of multiple dwellings on the site, the maximum number of multiple dwellings that can be approved in a development of the site under LPS 3 is now three. If cl 5.3.4 of LPS 3 applies to the site, then the planning framework applicable to the development of multiple dwellings on the site has changed substantially since the development approval for nine multiple dwellings on the site was granted on 30 October 2012, because the number of multiple dwellings that can be approved on the site has been significantly reduced.
45 In her amended submissions in reply, filed prior to the hearing, Dr Kapila submitted that she has an 'accrued right' under s 37(1) of the Interpretation Act to have the review proceeding determined on the basis of the Scheme as it stood prior to Amendment No 32. However, at the hearing, Mr McIntyre SC, counsel for Dr Kapila, abandoned that argument and conceded that Dr Kapila does not in fact have an 'accrued right' to have the review application determined on the basis of LPS 3 as it stood prior to the insertion of cl 5.3.4 into the Scheme (T:46.347.1; 22.03.16).
46 Nevertheless, Mr McIntyre contends that Dr Kapila 'ought not to be prejudiced in relation to the consideration of the proper exercise of the discretion whether or not to grant the extension, which occurred by way of a decision made on 24 September 2015, in relation to an application made on 16 September 2015, by reason of the fact that the Scheme has since been amended on 20 October 2015.' Having abandoned the argument that Dr Kapila has an 'accrued right' under s 37(1) of the Interpretation Act to have the review application determined on the basis of the Scheme as it stood prior to Amendment No 32, Mr McIntyre relies on s 27(2), s 29(1) and s 29(5)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in support of this contention. Section 27(2) of the SAT Act states as follows:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
47 Section 29(1) and s 29(5)(b) of the SAT Act state as follows:
(1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
…
(5) The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision
…
- (b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
What was the preferable decision, if made at the time the decision was made on 24 September 2015, though looking at it from the position in time when the review decision is now to be made.
49 In support of this submission, Mr McIntyre relies on the following observation of the Tribunal in Thomas and City of Stirling [2013] WASAT 110; (2013) 84 SR (WA) 240 (Thomas) at [67]:
Under s 27 of the SAT Act, the Tribunal must arrive at the correct and preferable decision at the time of the decision upon review. By virtue of the provisions of s 29 of the SAT Act, the Tribunal effectively stands in the shoes of the City in making that decision. …
50 However, Dr Kapila's submission misconceives the nature of review proceedings under the SAT Act. Although it is correct that 'the Tribunal effectively stands in the shoes of the [original decisionmaker] in making [the reviewable] decision', as the Tribunal said in Thomas at [67], the Tribunal stands in the original decisionmaker's shoes not as at the date when the reviewable decision was made by the original decisionmaker, but rather as at the date of the Tribunal's review of that decision. The Tribunal's express statutory task on review is 'to produce the correct and preferable decision at the time of the decision upon the review' (s 27(2) of the SAT Act). The issue for the Tribunal on review is therefore not 'what was the preferable decision, if made at the time the decision was made on 24 September 2015, though looking at it from the position in time when the review decision is now to be made', but rather what is the correct and preferable decision at the time of the decision upon the review, exercising functions and discretions corresponding to those exercisable by the original decisionmaker in making the reviewable decision.
51 A very similar submission to that made by Mr McIntyre in this case was put to and rejected by the Tribunal in Scolaro and Shire of Waroona [2014] WASAT 37; (2014) 85 SR (WA) 38 at [45] [48] as follows:
The third submission advanced by Mr Hotchkin in support of the contention that the Tribunal has power to approve the development application, notwithstanding Amendment No 12, is that s 29(5)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) has the effect that 'the Scheme at the time of the reviewed decision is … applicable'. Section 29(5)(b) of the SAT Act states as follows:
The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision
…
- (b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
However, this provision does not purport to and does not have the effect that the Scheme at the time of the making of the reviewable decision is applicable in the determination of the review proceeding. Indeed, that would be inconsistent with s 27(2) of the SAT Act which describes the nature of review proceedings and states that:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. (Emphasis added).
The 'correct' decision means, or at least requires, that the decision must be legally correct at the time when it is made by the Tribunal. If, at the time of the decision upon the review, development approval cannot lawfully be granted to an application, then approval of the development application cannot be the correct and preferable decision at the time of the decision upon the review.
Furthermore, s 29(5)(b) of the SAT Act is, on its face, a procedural, rather than a substantive provision and states that the Tribunal's decision is deemed to have had effect at the time of the reviewable decision 'unless the enabling Act states otherwise or the Tribunal orders otherwise'. Such a procedural provision makes good sense in review proceedings where the review decision may modify the reviewable decision, for example, by amending operative conditions of planning approval. However, the fact that the Tribunal can order that the decision is to have effect from another date, such as the date of the decision upon the review or even subsequently, also indicates that s 29(5)(b) of the SAT Act does not have the effect that the Scheme at the time of the reviewable decision is applicable where the Scheme has been amended prior to the decision upon the review.
52 Dr Kapila submits that if the application for an extension of the term of the development approval is to be determined on review having regard to the Scheme as it now stands, including cl 5.3.4, then that provision does not subject the development of multiple dwellings on the site to the average site area per grouped dwelling requirement specified in the RCodes for grouped dwellings on land coded R40, because '[a] proper application of clause 5.3.4 of the Scheme requires defining an ''activity centre'', engaging in a land use analysis and considering planning evidence', and a planning analysis carried out by Mr Samec and discussed in his witness statement demonstrates that the site is located well within 'the area of a walkable catchment of 800 metres around an activity centre' for the purposes of cl 5.3.4 of LPS 3.
53 In his planning analysis, Mr Samec purported to define and delineate an 'activity centre' in the vicinity of the site for the purposes of cl 5.3.4 of LPS 3. The 'activity centre' defined and delineated by Mr Samec, which he termed the 'Balga Activity Centre', comprises the southeastern portion of the Princess / Wallington Reserve on Princess Road and Camberwell Road and the Balga Plaza Shopping Centre and adjoining and adjacent commercial, community, religious and recreational facilities, to the south of the Princess / Wallington Reserve in the street block bounded by Princess Road to the northwest, Fletching Street to the south, Cumping Street to the east and Balga Avenue to the north. Mr Samec gave evidence that the facilities in the area he defined and delineated as the 'Balga Activity Centre' 'have together functioned as a planned town centre for decades and continue to do so'. The site is located directly across Princess Road from the southern end of the 'Balga Activity Centre' as defined and delineated by Mr Samec and is within an approximately 600 metre walk from the furthest part of that area as defined and delineated by him.
54 In support of his definition and delineation of the 'Balga Activity Centre' as an 'activity centre' for the purposes of cl 5.3.4 of LPS 3, Mr Samec referred to the definition of the term 'activity centre' in Appendix 1 of the RCodes, namely 'community focal points … [that] include activities such as commercial, retail, higher density housing, entertainment, tourism, civic / community, higher education, and medical services', and to cl 5.1.2 of State Planning Policy No 4.2 Activity Centres for Perth and Peel (SPP 4.2), which states that '[n]eighbourhood centres are important local community focal points that help to provide for the main daily to weekly household shopping and community needs'. Mr Samec expressed the opinion that:
The Balga town centre satisfies the criteria for a neighbourhood activity centre under SPP 4.2 and falls within the meaning of a neighbourhood activity centre under the R[]Codes.
55 Dr Kapila submits that, on its proper interpretation, cl 5.3.4 of LPS 3 requires a planning analysis (such as that carried out by Mr Samec in this case) to be undertaken on a case by case basis and in every case to determine whether a proposed R40 coded development site is or is not 'located outside the area of a walkable catchment of 800 metres around an activity centre, specialised centre or railway station on a high frequency rail route', and therefore to determine whether the development of multiple dwellings on that development site is or is not subject to the average site area per grouped dwelling requirement specified in the RCodes for grouped dwellings on land with an R40 residential density code. As Mr McIntyre expressed Dr Kapila's submission in relation to the proper interpretation of cl 5.3.4 of LPS 3:
… So we say the only reasonable way in which you could give any meaning to the contents of the words which identify areas located outside the area of the walkable catchment of 800 metres around an activity centre, is to say that within what's designated on the map, within the blue line, you then need to go to the forensic exercise of working out what's within and what's outside the 800 metre walkable catchment area of what you can identify as an activity centre, using town planning information as to what is ordinarily understood as an activity centre.
(T:54.554.7; 22.03.16)
56 When the Tribunal suggested to Mr McIntyre that '[t]hat would be a very complex process in relation to each and every development application, if that were right' (T:54.8; 22.03.16), Mr McIntyre replied 'Yes' and said that '[b]ut there's no other alternative suggested' (T:54.9; 22.03.16).
57 However, as the City submits, cl 5.3.4 of LPS 3 does not contemplate or permit a planning analysis such as that carried out by Mr Samec to determine whether land coded R40 is or is not subject to the average site area per grouped dwelling requirement specified in the RCodes for grouped dwellings in relation to the development of multiple dwellings on the land. Rather, as the City also submits, 'whether any particular residential R40 lot is subject to clause 5.3.4 is determined by reference to the scheme map.' This is the clear grammatical meaning of cl 5.3.4 of LPS 3. As this provision expressly states, it applies to:
… land with a residential density code of R40 … located outside the area of a walkable catchment of 800 metres around an activity centre, specialised centre or railway station on a high frequency rail route as shown on the Scheme Maps or as shown on a map contained in a schedule of the Scheme … (emphasis added) There is relevantly no map contained in a schedule of the Scheme for the purposes of cl 5.3.4 of LPS 3.
58 Furthermore, whereas the City's proposed interpretation of cl 5.3.4 of LPS 3 accords with the clear grammatical meaning of the provision, Dr Kapila's proposed interpretation of this provision would require the Tribunal to ignore the words 'as shown on the Scheme Maps or as shown on a map contained in a schedule of the Scheme'. There is simply no basis for doing so.
59 As noted earlier, the Scheme Map that includes the site (namely, Map 3) shows that the site is located within a bluedashed area which, according to the legend on the Scheme Map, depicts 'R40 areas affected by clause 5.3.4 in the scheme text'. It is common ground between the parties and Mr Samec gave evidence that the site 'falls within the area of land affected by clause 5.3.4 of LPS 3 as depicted on the Scheme Map 3'. The site, which has a residential density coding of R40 under LPS 3, is therefore 'located outside the area of a walkable catchment of 800 metres around an activity centre, specialised centre or railway station on a high frequency rail route as shown on the Scheme Maps' under cl 5.3.4 of LPS 3.
60 Consequently, on the proper interpretation of cl 5.3.4 of LPS 3, determined by its clear grammatical meaning, that provision applies to the site and limits the maximum number of multiple dwellings that can now be approved on the site to three by the application of the average site area per grouped dwelling requirement specified in the RCodes for grouped dwellings on land with an R40 residential density code to the development of multiple dwellings on the site.
61 Furthermore, cl 1.4 of LPS 3 states that the Scheme comprises not only the Scheme Text, but also the Scheme Maps. The clear grammatical meaning of cl 5.3.4 of LPS 3, under which the determination of whether any particular residential R40 lot is subject to cl 5.3.4 is determined by reference to the Scheme Map that includes the land, is reinforced by the terms of the legend on the Scheme Map that includes the site (which forms part of the Scheme itself): 'R40 areas affected by clause 5.3.4 in the scheme text'. When read together with cl 5.3.4 of the Scheme Text, the words 'affected by' in the legend on the Scheme Map plainly mean: restricted in terms of multiple dwelling development potential by being subject to the average site area per grouped dwelling requirement specified in the RCodes for grouped dwellings on R40 coded land.
62 Finally, as noted earlier, a provision of a planning scheme will be taken to have been intended by its maker to have a practical and commonsense meaning, which will best achieve its evident planning purpose. The grammatical meaning of cl 5.3.4 of LPS 3, under which it applies to the site as the site is land coded R40 and 'located outside the area of a walkable catchment of 800 metres around an activity centre, specialised centre or railway station on a high frequency rail route as shown on the Scheme Maps', is entirely consistent with reading the provision in a practical and commonsense manner, which will best achieve its evident planning purpose. It is practical and accords with commonsense to expressly delineate on the Scheme Maps R40 coded lots which are located outside the area of a walkable catchment of 800 metres around an activity centre, specialised centre or railway station on a high frequency rail route and which are therefore restricted in their multiple dwelling development potential by cl 5.3.4 of LPS 3. It also best achieves the evident planning purpose of cl 5.3.4 of LPS 3 of limiting multiple dwelling residential density and hence multiple dwelling developments in certain areas which are shown on the Scheme Maps as 'R40 areas affected by clause 5.3.4 in the scheme text'.
63 In contrast, Dr Kapila's proposed interpretation of cl 5.3.4, under which a planning analysis would be required on a case by case basis and in every case to determine whether that provision applies to a particular R40 coded development site, including in every case 'defining an ''activity centre'', engaging in a land use analysis and considering planning evidence', would be manifestly impractical and contrary to commonsense. It would involve potentially significant costs to both developers and the Council and would result in significant confusion for them and for the community in and around R40 coded areas of the City, not least of all where there are different and competing planning analyses presented on behalf of a developer and on behalf of the Council. It could not have been the intention of the maker of cl 5.3.4 of LPS 3 to require such a complex, potentially expensive and confusing process to occur in relation to each and every development application for multiple dwellings in the areas shown on the Scheme Maps as 'R40 areas affected by clause 5.3.4 in the scheme text'.
64 As the planning framework relevant to development of the site now restricts development of multiple dwellings on the land to the average site area per group dwelling requirement specified in the RCodes for grouped dwellings, and therefore limits the number of multiple dwellings which can be approved on the site to three, as opposed to the nine multiple dwellings the subject of the development approval, it follows that the planning framework has changed substantially since the development approval was granted on 30 October 2012.
Is it likely that the development would receive approval now?
65 For reasons set out earlier, cl 5.3.4 of LPS 3 now restricts the maximum number of multiple dwellings that can be approved on the site to three. There is no power or discretion under the RCodes or the Scheme to approve nine multiple dwellings on the site. Therefore, the approved development comprising nine multiple dwellings would be prohibited and would not receive development approval now under LPS 3.
Has Dr Kapila actively and relatively conscientiously pursued the implementation of the development approval?
66 As noted earlier, in her letter dated 16 September 2015 seeking a further extension of the term of the development approval, Dr Kapila said that 'appropriate actions were taking place to commence building when my husband was diagnosed with a critical chronic medical condition in February 2015.' Dr Kapila gave evidence, which we accept, that her 'attention was diverted to attending to [her husband], and this was one of the reasons for the delay.' As she explained in crossexamination:
It was quite a devastating diagnosis, and for the first few months after the diagnosis, we were sort of running around in a sort of a haze, not quite able to focus on business things, such as this development or anything else that was happening in our life. So, I think that is the only time period in the last three years where we weren't actively pursuing every avenue that we had. But by about May [2015], I think it was, we had sort of started to get back into our business affairs, and that's when we actually were able to go through with a financier who did actually end up coming through with the finance in the end.
(T:79.579.7; 22.03.16)
67 Dr Kapila has spent $14,242 on engineering and drafting fees between the granting of the development approval and the lapsing of the extended term of the development approval which appear to relate to implementation of the development approval.
68 After having had 'difficulty in obtaining finance as I did not want to sell any of the apartments off the plan as I wished to retain all nine apartments for my retirement', on 28 September 2015 Dr Kapila received an offer from La Trobe Financial Services Pty Ltd to finance construction of the development up to $1,638,000 (although the offer subsequently lapsed). Dr Kapila gave evidence, which was not questioned and which we accept, that '[t]o reach substantial commencement pursuant to the development conditions after finance has been approved would take an estimated 6 further months.'
69 On 19 October 2015, Dr Kapila received demolition approval from the City to demolish all structures on the site. She gave evidence that the demolition company 'started doing things like taking out the ovens and the internal parts that weren't actually structural to the building' (T:78.3; 22.03.16) in October 2015, before the expiry of the extended term of the development approval. She said that the building on the site was demolished in January 2016, which was after the expiry of the extended term of the development approval.
70 We are satisfied, on balance, that by persisting with the pursuit of finance for the development project, notwithstanding the difficulty in obtaining finance, and ultimately succeeding in obtaining finance in September 2015, paying $14,242 in relation to engineering and drafting services which appear to relate to implementation of the development approval, and obtaining the demolition permit and removing nonstructural elements of the building in October 2015, Dr Kapila actively and relatively conscientiously pursued the implementation of the development approval prior to the expiry of the extended term of the development approval.
Is the approved development consistent with a multiple dwelling development on an adjacent property?
71 A multiple dwelling development consisting of 32 apartments is under construction at No 91 Princess Road, Balga, which is one property removed from the site to the northeast. Dr Kapila contends that the approved development on the site is consistent with the development on the adjacent property and that this is a factor to be taken into account in the exercise of discretion as to whether or not to grant a further extension of the term of the development approval.
72 However, the scale of the two developments and the sizes of the two properties is quite different. As Ms Giovanna Lumbaca, a town planner and a Senior Planning Officer (Approvals Business Unit) of the City, said in evidence, the development at No 91 Princess Road 'represents a large scale multiple dwelling development on a site that [has] a total of 3,270m² in land area' and a street frontage of 46 metres. In contrast, as Ms Lumbaca said, the approved development on the site 'represents a small scale multiple dwelling development on a Site that [has] a total of 882m² in land area' and a street frontage of 18.1 metres.
73 Furthermore, although Mr McIntyre submits that the approved development on the site 'would maintain a consistent streetscape' with the multiple dwelling development at No 91 Princess Road, no town planning or other evidence to this effect was presented. Further, there is no evidence that a 'consistent streetscape' requires a development on the site of nine multiple dwellings or would not be maintained by development on the site consistent with LPS 3 as it currently stands. Indeed, Ms Lumbaca gave evidence, which was not questioned or contradicted and which we accept, that the 32 multiple dwelling development on the adjacent property 'is designed to adequately address Princess Road and appears as two storey grouped dwellings as viewed from the street' (emphasis added).
Is the site 'ideally located for higher density housing'?
74 In his witness statement, Mr Samec referred to various provisions of State Planning Policy No 3 Urban Growth and Settlement (SPP 3) and the Western Australia Planning Commission's Development Control Policy 1.6 Planning to Support Transit Use and Transit Oriented Development (DC 1.6). In particular, Mr Samec referred to cl 5.1 of SPP 3 which states the 'key requirements for sustainable communities' as including:
• variety and choice in the size, type and affordability of housing to support a range of household sizes, ages and incomes and which is responsible to housing demand and preferences;
…
• supporting higher residential densities in the most local accessible locations, such as, in and around town and neighbourhood centres, high frequency public transport nodes and interchanges, major institutions and hospitals, and adjacent to high amenity areas such as foreshores and parks;
…
• access for all to employment, health, education, shops, leisure and community facilities by locating new development so as to be accessible by foot, bicycle or public transport rather than having to depend on access by car (whilst recognising the convenience of car travel for some trips and the limited potential to provide alternatives in rural and remote locations)[.]
75 Mr Samec also referred to cl 5.3 of SPP 3 which states that the 'key elements' for effective management of urban growth in Metropolitan Perth include:
• consolidating residential development in existing areas …;
• giving priority to infill development in established urban areas, particularly through urban intensification of development of underutilised urban land, whilst respecting neighbourhood character;
…
• developing an integrated land use and transport network which reduces car dependence and broadens travel options, makes it easier for people to use public transport or walk or cycle to their destinations …[.]
76 Mr Samec gave evidence that DC 1.6 'emphasises the benefits of integrated land use and transit facilities' as follows:
Higher residential densities and mixed use development in the walkable catchments of transit facilities have the potential to reduce car dependence; to increase accessibility for those without access to private cars; to reduce congestion on the road network and the demand for new road space; to reduce fuel consumption and air pollution; and to provide quality diverse and affordable forms of housing and development. These benefits combine to produce an attractive and viable alternative to carbased suburban and urban fringe development.
77 He also referred to the following statement in the Background section of DC 1.6:
The following policy measure from SPP 3 are particularly relevant to this policy:
• Supporting higher residential densities in and around neighbourhood centres, high frequency public transport nodes and interchanges.
78 Mr Samec expressed the opinion that limiting the development potential of the site to three multiple dwellings, rather than nine multiple dwellings, 'runs counter to the planning intention of … SPP 3 and … DC … 1.6 for higher densities around activity centres'. He also expressed the opinion that the site is 'ideally located for higher density housing in accordance with … SPP 3 and the walkability and reduced car dependency planning objectives of DC … 1.6'.
79 It is clear from Mr Samec's evidence that he strongly disagrees with the strategic planning decision embodied in cl 5.3.4 of LPS 3 to significantly reduce the multiple dwelling development potential of the site and other properties in the locality of the site also affected by cl 5.3.4 of the Scheme.
80 However, it is not for the Tribunal in this review of the City's decision to refuse Dr Kapila's application for a further extension of the term of the development approval to determine the optimal strategic planning for the site. Nor is it for the Tribunal in this proceeding to review the recent strategic planning decision for the site and the locality of the site in the form of Amendment No 32 to LPS 3 which plainly significantly reduces the number of multiple dwellings capable of development approval on the site. As found earlier, the approved development would be prohibited and would not receive development approval now under LPS 3.
Exercise of discretion
81 If the term of the development approval could be extended more than once under cl 10.5.2 of LPS 3, we would refuse to further extend the term of the development approval in the exercise of discretion in the circumstances of this case, because although we are satisfied, on balance, that Dr Kapila has actively and relatively conscientiously pursued the implementation of the development approval during the extended term, the planning framework has changed substantially since the development approval was granted and, indeed, the development would be prohibited and would not receive development approval now under the Scheme.
82 Furthermore, even if the approved development on the site were considered to be consistent with the 32 apartment multiple dwelling development on the adjacent property and would maintain a consistent streetscape, and if this were taken into account in support of a further extension of the term, together with Dr Kapila having actively and relatedly conscientiously pursued the implementation of the development approval during the extended term, we would still decline the application for a further extension of the term, because the planning framework has changed substantially since development approval was granted and the approved development would not now receive development approval under the Scheme.
Conclusion
83 It follows that the application for review should be dismissed and the decision of the City made on 24 September 2015 to refuse to extend the term of the development approval should be affirmed.
Orders
84 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent made on 24 September 2015 to refuse to extend the term of the development approval granted on 30 October 2012 in relation to No 85 (Lot 209) Princess Road, Balga, is affirmed.
I certify that this and the preceding [84] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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