KENNEDY HOLDINGS WA PTY LTD AND JCO INVESTMENTS PTY LTD and CITY OF SUBIACO
[2015] WASAT 82
•24 JULY 2015
KENNEDY HOLDINGS WA PTY LTD AND JCO INVESTMENTS PTY LTD and CITY OF SUBIACO [2015] WASAT 82
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 82 | |
| 30/07/2015 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:342/2014 | 24 JULY 2015 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 24/07/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Conditional development approval granted by Tribunal with effect from date of original refusal of development application by City of Subiaco | ||
| B | |||
| PDF Version |
| Parties: | KENNEDY HOLDINGS WA PTY LTD AND JCO INVESTMENTS PTY LTD CITY OF SUBIACO |
Catchwords: | Town planning Development application Extension of nonconforming use to second level of building Development application to regularise unlawful use Development application originally refused by respondent Applicants sought review of refusal by Tribunal Respondent commenced prosecution of applicants for unlawful use in Magistrates Court Following determination of preliminary issue by Tribunal, respondent invited to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) Respondent set aside its refusal and substituted conditional approval of development application Applicants sought order from Tribunal granting development approval with effect from date of original refusal by respondent Whether Tribunal has power to grant development approval with effect from date of original refusal by respondent when respondent subsequently set aside refusal and granted conditional approval Whether correct and preferable decision for Tribunal to grant development approval with effect from date of original refusal by respondent |
Legislation: | City of Subiaco Town Planning Scheme No 4, cl 15(2) Planning and Development Act 2005 (WA), s 218, s 252(1) State Administrative Tribunal Act 2004 (WA), s 29(3), s 29(5), s 29(5)(b), s 31(1), s 31(3) |
Case References: | Kennedy Holdings WA Pty Ltd and City of Subiaco [2015] WASAT 34 |
Summary | The applicants sought review by the Tribunal of the refusal by the City of Subiaco of a development application to regularise the use of the upper level of a building as offices. Following a preliminary decision of the Tribunal that the development application is capable of approval, the Tribunal invited the City to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA). The City then set aside its original refusal and substituted a conditional approval for the development. In the interim, after the commencement of the review proceeding and prior to its granting of development approval, the City prosecuted the applicants in the Magistrates Court in relation to the use for which development approval was sought. ,The applicants sought an order from the Tribunal that the decision to grant development approval should take effect from the date of the original refusal of development approval by the City. The City opposed such an order, contending that development approval had and should have effect from the City's decision upon reconsideration, and not earlier.,The Tribunal determined that the correct and preferable decision is for it to grant development approval, subject to the conditions imposed by the City upon reconsideration, but with effect from the date of the City's original refusal of development approval. The Tribunal determined that it has power to make this decision under s 29(3) and s 29(5)(b) of the State Administrative Tribunal Act 2004, even though the City's decision upon reconsideration to grant development approval had effect only from the date of that decision. The Tribunal determined that it is just, appropriate and consistent with the expectation of s 29(5)(b) of the State Administrative Tribunal Act 2004 for the order granting development approval to have effect from the date of the City's initial refusal of development approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : KENNEDY HOLDINGS WA PTY LTD AND JCO INVESTMENTS PTY LTD and CITY OF SUBIACO [2015] WASAT 82 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 24 JULY 2015 DELIVERED : 24 JULY 2015 PUBLISHED : 30 JULY 2015 FILE NO/S : DR 342 of 2014 BETWEEN : KENNEDY HOLDINGS WA PTY LTD AND JCO INVESTMENTS PTY LTD
- Applicants
AND
CITY OF SUBIACO
Respondent
Catchwords:
Town planning Development application Extension of nonconforming use to second level of building Development application to regularise unlawful use Development application originally refused by respondent Applicants sought review of refusal by Tribunal Respondent commenced prosecution of applicants for unlawful use in Magistrates Court Following determination of preliminary issue by Tribunal, respondent invited to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) Respondent set aside its refusal and substituted conditional approval of development application Applicants sought order from Tribunal granting development approval with effect from date of original refusal by respondent Whether Tribunal has power to grant development approval with effect from date of original refusal by respondent when respondent subsequently set aside refusal and granted conditional approval Whether correct and preferable decision for Tribunal to grant development approval with effect from date of original refusal by respondent
Legislation:
City of Subiaco Town Planning Scheme No 4, cl 15(2)
Planning and Development Act 2005 (WA), s 218, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(3), s 29(5), s 29(5)(b), s 31(1), s 31(3)
Result:
Conditional development approval granted by Tribunal with effect from date of original refusal of development application by City of Subiaco
Summary of Tribunal's decision:
The applicants sought review by the Tribunal of the refusal by the City of Subiaco of a development application to regularise the use of the upper level of a building as offices. Following a preliminary decision of the Tribunal that the development application is capable of approval, the Tribunal invited the City to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA). The City then set aside its original refusal and substituted a conditional approval for the development. In the interim, after the commencement of the review proceeding and prior to its granting of development approval, the City prosecuted the applicants in the Magistrates Court in relation to the use for which development approval was sought.
The applicants sought an order from the Tribunal that the decision to grant development approval should take effect from the date of the original refusal of development approval by the City. The City opposed such an order, contending that development approval had and should have effect from the City's decision upon reconsideration, and not earlier.
The Tribunal determined that the correct and preferable decision is for it to grant development approval, subject to the conditions imposed by the City upon reconsideration, but with effect from the date of the City's original refusal of development approval. The Tribunal determined that it has power to make this decision under s 29(3) and s 29(5)(b) of the State Administrative Tribunal Act 2004, even though the City's decision upon reconsideration to grant development approval had effect only from the date of that decision. The Tribunal determined that it is just, appropriate and consistent with the expectation of s 29(5)(b) of the State Administrative Tribunal Act 2004 for the order granting development approval to have effect from the date of the City's initial refusal of development approval.
Category: B
Representation:
Counsel:
Applicants : Mr LD Hilton-Barber
Respondent : Mr CA Slarke
Solicitors:
Applicants : Jackson McDonald
Respondent : McLeods
Case(s) referred to in decision(s):
Kennedy Holdings WA Pty Ltd and City of Subiaco [2015] WASAT 34
Background
1 On 9 September 2014, the City of Subiaco (respondent or City) refused development approval for an application to regularise the unlawful use of the second level of a building at No 34 Bagot Road, Subiaco by extending nonconforming use from the ground floor to the second level for offices. The applicants then sought review by the Tribunal of that refusal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act).
2 On 30 March 2015, the Tribunal published a decision with reasons as to whether the proposed development is capable of approval under the City of Subiaco Town Planning Scheme No 4 (TPS 4 or Scheme): see Kennedy Holdings WA Pty Ltd and City of Subiaco [2015] WASAT 34. In that decision, the Tribunal found that the local planning scheme does not preclude approval of further development that involves an extension or enlargement of the nonconforming use that operates on the ground floor of the building to other parts of the building, or other parts of the site generally. The Tribunal therefore observed that the applicants' request for development approval had to be determined on its merits, applying all the relevant factors identified under the Scheme and any other relevant legislative instrument or policy.
3 On 15 April 2015, the Tribunal, at the request of the parties, invited the City to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on or before 9 June 2015. On 18 June 2015, again, at the joint request of the parties, the Tribunal extended the date for reconsideration to 14 July 2015.
4 On 14 July 2015, the Planning and Development Services Committee of the City, acting under delegated authority from the Council, resolved in the following terms:
The Committee, in response to the invitation by the State Administrative Tribunal to review its decision under section 31(1) of the State Administrative Tribunal Act 2004, set aside the previous decision dated 9 September 2014 and substitutes a new decision as follows.
In accordance with the provisions of the Town Planning Scheme No. 4 and the Metropolitan Region Scheme, the application submitted by P D Webb date stamped 16 July 2014 for application to extend non-conforming use at 34 (Lot 7 on D/P:16101 and 200 on D/P:302377) Bagot Road, Subiaco as shown on plans date stamped 16 July 2014, be APPROVED subject to the following conditions:
1. The development shall be carried out in accordance with the plans and drawings date stamped 16 July 2014;
2. Any additional advertising signs will require a separate development approval under Town Planning Scheme No. 4.
5 In the interim, in about March 2015, the City commenced a prosecution against the applicants in the Magistrates Court pursuant to s 218 of the PD Act in respect of the use of the second level of the building as offices during the period from May 2014 to March 2015.
Parties' contentions
6 On 21 July 2015, the solicitors for the applicants applied to the Tribunal for an order that the decision of the City upon reconsideration 'take effect from the date on which the original decision being reviewed would have taken effect but for the respondent's incorrect interpretation of cl 15(2) of TPS 4, namely, the date of the respondent's original decision to refuse the application made on 9 September 2014'.
7 On 23 July 2015, the solicitors for the City responded by opposing the applicants' application. For reasons developed in submissions today and addressed below, the City 'querie[d] whether an order in the terms sought is within power' and contended further that an order to the effect that the Tribunal affirm the decision of the City made upon reconsideration is unnecessary. As the applicants are content with the conditions imposed by the City upon reconsideration, the City contended that 'the review application should simply be withdrawn'.
Can and should the Tribunal grant development approval with effect from the date of the City's original refusal of the development application?
8 Section 27(2) of the SAT Act states that the purpose of the Tribunal's review of a reviewable decision is 'to produce the correct and preferable decision at the time of the decision upon the review'. Although the applicants are content with the terms of the City's decision upon reconsideration made on 14 July 2015, they in effect contend that the correct and preferable decision is for the Tribunal to grant development approval, subject to the conditions imposed by the City on 14 July 2015, but with effect from 9 September 2014, being the date of the City's original refusal. For reasons which follow, I agree that this is the correct and preferable decision in respect of the review.
9 The application made by the applicants for an order that the decision to grant development approval is to have effect from 9 September 2014 is opposed by the City for five reasons.
10 First, Mr Slarke, on behalf of the City, submits that there is no power in the Tribunal to make an order in terms of the order sought by Mr HiltonBarber on behalf of the applicants. Mr Slarke submits correctly, with respect, that under s 31(3) of the SAT Act, the City's substituted decision granting development approval has effect from the date of the City's decision of 14 July 2015 and that, unless the review proceeding is withdrawn, it is taken to be for the review of the City's decision made on that date. This is because s 31(3) of the SAT Act states:
If the decisionmaker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.
11 In this case, the application for review has not been withdrawn. It is therefore taken to be for a review of the decision substituted on 14 July 2015. Plainly, the City's substituted decision of 14 July 2015 was only effective from that day. However, as Mr Hilton-Barber submits, s 29(5)(b) of the SAT Act enables the Tribunal to 'order otherwise', that is to say, to order that the Tribunal's decision upon review is to have effect from a date other than the date of the City's decision of 14 July 2015.
12 Section 29(3) and s 29(5) of the SAT Act state as follows:
(3) The Tribunal may
(a) affirm the decision that is being reviewed; or
(b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and
(i) substitute its own decision; or
(ii) send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
- and, in any case, may make any order the Tribunal considers appropriate.
(5) The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision
(a) is to be regarded as, and given effect as, a decision of the decisionmaker; and
(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.
(Emphasis added)
14 The second submission made by Mr Slarke is that in order for the Tribunal to make a decision to grant development approval in this case, as in effect sought by the applicants, the Tribunal would have to go through a full merits assessment of the application.
15 Section 27(1) of the SAT Act states that 'the review of a reviewable decision is to be by way of a hearing de novo'. In making the decision, as I have, to grant development approval in the same terms as the Council's determination of 14 July 2015, I am exercising a statutory discretion and, in particular, a planning discretion under the Scheme and PD Act as to whether to grant development approval and, if so, subject to what conditions.
16 However, in exercising that statutory discretion, the Tribunal is, in the ordinary course, guided by the parties' contentions as to the issues between the parties and the issues in relation to planning merit, as articulated by the parties. Although the Tribunal retains a discretion to raise planning issues, subject to affording procedural fairness to the parties, not raised by a respondent, it is unusual for the Tribunal to do so and, generally, the Tribunal will have regard to and address only the planning issues raised by a respondent in relation to a proposed development.
17 In this case, the respondent does not raise any planning issues against the granting of development approval. Indeed, the respondent has itself granted development approval, as I have said, on 14 July 2015, following the clarification of the legal position in the Tribunal's determination, published on 30 March 2015.
18 In the Tribunal's view, the situation in this case is analogous to a matter where the parties propose consent orders for the granting of development approval, subject to agreed conditions. Although, as Mr Slarke correctly points out, this is not strictly a case of consent orders, in the Tribunal's view, there is sufficient analogy in that materially the City does not raise any planning issue under its Scheme, or otherwise, against the granting of development approval, subject to the conditions that it itself imposed on 14 July 2015. In the same way as the Tribunal in addressing an application for consent orders for the granting of development approval, subject to agreed conditions, does not usually conduct a full merits assessment, so too, in this case, in the Tribunal's view, it is appropriate for the Tribunal to note that the parties and, in particular, the original decisionmaker, the City, does not raise any planning consideration or issue contrary to the granting of conditional approval. Furthermore, it is to be noted that there is a reason for the Council's change of position from refusal to conditional approval of the development application, namely, the Tribunal's clarification of the legal position in its decision of 30 March 2015.
19 Thirdly, Mr Slarke submits that it would be inappropriate to make the order sought by the applicants for the decision to grant development approval to have effect from 9 September 2014, because the City has commenced a prosecution for breach of the Scheme in the use of the upper level of the building on the site from May 2014 until March 2015, which was the date when the prosecution was commenced. Mr Slarke accepts that it would be possible for the applicants to refer to the granting of development approval by the City under s 31 of the SAT Act from 14 July 2015 in terms of penalty in the prosecution. However, Mr Slarke submits that it would be inappropriate for the applicants to be able to defend the prosecution, at least from 9 September 2014, on the basis of a planning approval granted by the Tribunal in July 2015.
20 However, the effect of the order sought by the applicants and the order that I have indicated I will make is consistent with the expectation of s 29(5)(b) of the SAT Act, which, as noted earlier, states that unless the enabling Act states otherwise, or the Tribunal orders otherwise, the decisionmaker's decision, as affirmed or varied by the Tribunal, or a decision that the Tribunal substitutes from the decisionmaker's decision, 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.'
21 The decision the subject of the application for review, as filed by the applicants, namely, a decision of the City to refuse development approval for the extension of non-conforming use rights to the upper level of the building, had effect on 9 September 2014. If the Tribunal had not made an invitation for reconsideration, then the matter would have proceeded to a determination of the substantive development application by the Tribunal and had the Tribunal granted development approval, following a contested hearing, or, indeed following an application for consent orders, the Tribunal's determination, unless it ordered otherwise, would by operation of law, and in particular by operation of s 29(5)(b) of the SAT Act, have had effect from the date of the City's original refusal of development approval on 9 September 2014.
22 In the Tribunal's view, there is nothing inappropriate and, indeed, it is entirely appropriate and consistent with the expectation of s 29(5)(b) of the SAT Act, for the order in this case to have effect granting approval from the date of the City's initial refusal of development approval.
23 Furthermore, this does not preclude the Council from seeking leave to amend its prosecution to refer to there having been unlawful development in the period from May 2014 until 9 September 2014.
24 Fourthly, Mr Slarke submits that the order sought by the applicants is 'artificiality on top of fiction'. In the Tribunal's view, it is not artificial, but is consistent with the expectation of s 29(5)(b) of the SAT Act and, furthermore, consistent with justice, for development approval to be granted with effect from the date sought by the applicants. It would be, in the Tribunal's view, highly unjust and contrary to the expectation of s 29(5)(b) of the SAT Act for the applicants to be in a worse position, having proceeded by way of an invitation by consent under s 31 of the SAT Act for the City to reconsider its decision, rather than to have the matter determined by way of consent orders. Plainly, given the City's decision of 14 July 2015, the alternative would be by way of consent orders. As I say, it would be completely unjust for the applicants to be in a worse position, having proceeded by way of s 31 of the SAT Act, rather than to seek consent orders, which would have the effect under s 29(3) and s 29(5)(b) of the SAT Act, unless the Tribunal ordered otherwise, that the development approval commenced on 9 September 2014.
25 Finally, Mr Slarke submits that it is contrary to the public interest to enable s 29(3) and s 29(5)(b) of the SAT Act to be used in the manner sought by the applicants in this case for the reason that it is common ground that the applicants carried out unlawful development in terms of the use of the upper level of the building during the period when they lodged the development application in May 2014 and throughout the period until the Council decision of 14 July 2015.
26 Mr Slarke submits that there was 'always a chance' that the result of the Tribunal review would be a refusal of development approval. Mr Slarke submits that the Tribunal should not encourage unlawful use in circumstances such as the circumstances of this case by, in effect, rewarding the applicants for having taken the chance and continued with their unlawful use of the site.
27 However, in the Tribunal's view, it is not contrary to public interest to enable s 29(3) and s 29(5)(b) to be used in the manner in effect sought by the applicants. Rather, it is consistent with the public interest, as expressed in the terms of s 29(5)(b), that an order granting development approval by the Tribunal, even in a case of a continued unlawful use, is to have effect, unless ordered otherwise, from the date of the original reviewable decision. Furthermore, the applicants in this case acted entirely appropriately in seeking to regularise the unlawful use situation. They made an application for development approval which the Council could have approved when it made its original decision on 7 September 2014. Indeed, the Council could have granted development approval at any time from May 2014 which is when the applicants sought development approval to regularise the use of the second level of the building.
Orders
1. The application for review is allowed.
2. The decision made by the respondent under s 31(1) of the State Administrative Tribunal Act 2004 (WA) on 14 July 2015 is set aside and in its place the following decision is substituted:
In accordance with the provisions of the City of Subiaco Town Planning Scheme No. 4 and the Metropolitan Region Scheme, the application submitted by P D Webb date stamped 16th July 2014 for application to extend nonconforming use at No 34 Bagot Road, Subiaco (Lot 7 on Deposited Plan 16101 and Lot 200 on Deposited Plan 302377) as shown on plans date stamped 16 July 2014 is approved with effect from 9 September 2014 subject to the following conditions:
(i) The development shall be carried out in accordance with the plans and drawings date stamped 16 July 2014.
(ii) Any additional advertising signs will require a separate development approval under Town Planning Scheme No. 4.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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