KORKMAZ and CITY OF CANNING
[2011] WASAT 92
•20 JUNE 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: KORKMAZ and CITY OF CANNING [2011] WASAT 92
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 20 JUNE 2011
FILE NO/S: DR 36 of 2011
BETWEEN: NAZIFE KORKMAZ
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Town planning Development application Three grouped dwellings Residential density Preliminary issue Whether there is discretion to approve the proposed development Dual coded site Proposed development density requires higher code of dual coding Scheme provision states that the lower code 'shall prevail as the maximum permissible residential density ... unless ... for development of more than two dwellings the minimum development site frontage is 25 metres' Whether 'development site frontage' includes frontage to open area on adjoining commercial property Whether adjoining 'open area forms an integral part of the total design' of the development Whether another scheme provision stating that 'when a site has dual coding Council may approve residential development at a density exceeding' the lower code if it is generally consistent with design criteria is an alternative source of discretion to approve the proposed development or is not applicable because of earlier provision
Legislation:
City of Canning Town Planning Scheme No 21
City of Canning Town Planning Scheme No 40, cl 5.4.1.5, cl 5.4.1.5(a), cl 5.4.1.5(b), cl 5.4.2, Appendix 1, Appendix 7
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2010)
Result:
There is no discretion to approve the proposed development
Development application refused
Category: B
Representation:
Counsel:
Applicant: Mr I McKellar (Acting as Agent)
Respondent: Mr I McLeod
Solicitors:
Applicant: N/A
Respondent: McLeods
Case(s) referred to in decision(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal was called upon to determine a preliminary issue as to whether there is discretion to approve a development comprising three grouped dwellings at a residential density of R30 on a site having a dual coding of R17.5/R30. A provision of the local planning scheme relevantly states that 'the lower code shall prevail as the maximum permissible residential density' where the 'development site frontage' is less than 25 metres. The street frontage of the site is 20.54 metres.
The Tribunal determined that there is no discretion to approve the proposed development as the development site frontage is less that 25 metres. The Tribunal rejected the applicant's submission that an open area on an adjoining property that appears to be the manoeuvring area for a loading dock, an accessway to the loading dock and a driveway is an 'open area [that] forms an integral part of the design [of the proposed development]' within the meaning of the definition of the term 'development site frontage'. In order to be included in 'development site frontage', adjoining open space must be likely to remain open space for the lifetime of the development in question. Furthermore, having regard to the design of the proposed development, the adjoining open space was not an integral part of the design.
The Tribunal also rejected the applicant's argument that another clause of the scheme provided an alternative source of discretion to approve the development. The other clause states that 'where a site has dual coding Council may approve residential development at a density exceeding that applicable to the R17.5 Code if it is generally consistent with [specified] design criteria'. Properly interpreted, this clause is a supplementary provision in relation to design that is only applicable in circumstances where there is discretion to approve a development in excess of the lower code under the former provision.
The Tribunal therefore affirmed the City of Canning's decision to refuse development approval.
Introduction
On or about 29 October 2010, Mr Nazife Korkmaz applied to the City of Canning (City or Council) for development approval for the construction of three single storey grouped dwellings at No 201 Treasure Road, Queens Park (site). The site has an area of 1,014 square metres, a frontage to Treasure Road of 20.54 metres and a depth of 49.31 metres. The site is zoned Residential with a dual residential density coding of R17.5/R30 under the City of Canning Town Planning Scheme No 40 (TPS 40 or Scheme).
The site adjoins residential properties to the southeast and southwest which are zoned and coded in the same way as the site. The site also adjoins a property to the northeast at Nos 203 207 Treasure Road that is zoned Shopping under TPS 40 and contains a liquor store and other shops.
The development of three grouped dwellings on the site would equate to a residential density of R30. By letter dated 12 January 2011, the City refused to approve the proposed development for five reasons, including the following:
A minimum development site frontage of 25m has not been provided and therefore the development does not meet the minimum and average lot area requirements of the Residential Design Codes (assessed at the R17.5 density code). In accordance with Clause 5.4.1.5 (b) of the City's Town Planning Scheme 40, for development of more than two dwellings on sites with a dual coding, the lower code shall prevail as the maximum permissible residential density for any land within the Residential zones unless a minimum frontage of 25m is provided.
On 27 January 2011, Mr Korkmaz commenced this proceeding, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), for review by the Tribunal of the City's decision. At the first directions hearing, which took place on 18 February 2011, the parties identified the following preliminary issue for determination in the proceeding:
Whether there is discretion to approve the proposed development.
The preliminary issue turns on the proper interpretation and application of cl 5.4.1.5 and cl 5.4.2 of TPS 40 which were both inserted into the Scheme by Amendment No 29 gazetted on 16 September 1997 (Amendment No 29). These provisions state as follows:
5.4.1.5Where a site has dual coding the lower code shall prevail as the maximum permissible residential density for any land within the Residential zones unless
(a)reticulated sewerage is or becomes available to any land within the zone or subject to the provisions of the Government Sewerage Policy; and
(b)for development of more than two dwellings the minimum development site frontage is 25 metres unless otherwise indicated on the Scheme Map of a gazetted Town Planning Development Scheme.
5.4.2Where a site has dual coding Council may approve residential development at a density exceeding that applicable at the R17.5 Code if it is generally consistent with the design criteria in the Residential Design Guidelines in Appendix 7.
Amendment No 29 also inserted a definition of 'development site frontage' in Appendix 1 and Residential Design Guidelines as Appendix 7 of the Scheme. The definition of 'development site frontage' in Appendix 1 of the Scheme as follows:
'development site frontage' is defined as the total continuous frontage which the development site has to public streets and may include the following:
frontage to adjoining open space where the open area forms an integral part of the total design.
frontage to Rights-of-Way as determined by Council where such ways are used to provide the primary vehicular access to one or more of the dwellings.
The Residential Design Guidelines in Appendix 7 of the Scheme contain design provisions under the following headings:
•Sympathy with Streetscape;
•Retention of Existing Dwelling;
•Relationship to Street;
•Access and Driveways;
•Fencing;
•Landscaping;
•Advantages of a Private House;
•Privacy and Overlooking; and
•Living with the Climate.
The Residential Design Guidelines state that:
…
The purpose of the Guidelines is to provide clear information to owners, residents, designers and developers on what basis development above the R17.5 Code will be supported, and to provide guidance on how development can be built in ways which protect and even improve the quality of the environment. (Original emphasis)
…
The Residential Design Guidelines also state:
These Guidelines are to be applied to all grouped and multiple dwelling development above the R17.5 Code in Precincts or on sites the subject of split coding (such as R17.5/R30).
In relation to para (a) of cl 5.4.1.5 of TPS 40, reticulated sewage is available to the site. In relation to para (b) of cl 5.4.1.5, the frontage of the site to Treasure Road is 20.54 metres. Furthermore, while the Scheme Map of the City of Canning Town Planning Scheme No 21, which applies to the site and surrounding area, identifies other properties as 'grouped dwelling site with frontage under 25 m (at upper density coding as per City Zoning Scheme)', the site is not identified as one of those properties.
Parties' submissions
Mr Ian McLeod, counsel for the City, submitted that there is no discretion to approve the proposed development, because, under cl 5.4.1.5 of TPS 40, the lower code of R17.5 'shall prevail as the maximum permissible residential density' as the site does not have the 'minimum development site frontage' of 25 metres.
In contrast, Mr Ian McKellar, Mr Korkmaz's agent, submitted that there is discretion to approve the proposed development under the Scheme for two reasons.
First, Mr McKellar submitted that although the street frontage of the site is only 20.54 metres, the term 'development site frontage' is not restricted to the street frontage and, in particular, includes 'frontage to adjoining open space where the open space area forms an integral part of the total design'. Mr McKellar submitted that, in addition to the street frontage of 20.54 metres, the site has a 'development site frontage' of 30 metres to adjoining open space on the property at Nos 203 207 Treasure Road. From the aerial photograph, the adjoining open space at Nos 203 207 Treasure Road appears to be the manoeuvring area for a loading dock, the accessway to the loading dock and a driveway from Treasure Road leading to the loading dock and car parking areas on that property.
Mr McKellar submitted that the open space at Nos 203 207 Treasure Road adjoining the common boundary with the site:
… gives rise to the at least following integrated elements:
a.no overshadowing of the proposed development (for 30 [metres] along the north[-]east boundary line from the public road); and,
b.an increase in the passage of light and air to the proposed window openings of 4 proposed bedrooms and one courtyard.
Alternatively, Mr McKellar submitted that:
Even if the R17.5 coding applies to the subject site by virtue of Clause 5.4.1.5 (which is denied), Clause 5.4.2 of TPS 40 vests in the City a discretionary power where land is dual coded, in that the City may approve development at densities higher than R17.5 Code (indeed, to any density) provided that the amenity provisions contained in Appendix 7 are met, and regardless of the length of the development site frontage. (Original emphasis)
Is there discretion to approve the proposed development?
The Tribunal's task is 'to ascertain the legislative intention [of the relevant provisions] by reference to the language of the [Scheme] viewed as a whole': Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. The Tribunal considers that, on the proper interpretation of cl 5.4.1.5 and cl 5.4.2 of TPS 40, there is no discretion under the Scheme to approve the proposed development, for the following reasons.
The term 'open space' is defined in the Residential Design Codes of Western Australia (2010) (Codes) as:
Generally that area of a lot which is not occupied by any building and includes:
…
•uncovered driveways (including access aisles in parking areas) and uncovered car bays;
…
The adjoining open area at Nos 203 207 Treasure Road is not occupied by any building and includes an uncovered driveway as well as the manoeuvring area of a loading dock. Furthermore, although it appears that earlier drafts of Amendment No 29 referred to 'public open space', rather than merely 'open space', the definition of 'development site frontage' as incorporated into the Scheme is not restricted to open space on public land and can include open space on private land.
However, para (b) of cl 5.4.1.5 and the definition of 'development site frontage' in Appendix 1 of the Scheme appear to contemplate that, in order to be included within 'development site frontage', an adjoining area must be likely to remain open space for the lifetime of the development in question. Otherwise, the open space could not form 'an integral part of the total design' of the development. This would obviously be the case in relation to public streets and private rights of way used to provide the primary vehicular access to one or more of the dwellings. It would also likely be the case in relation to public open space and, depending on factual and legal circumstances, may be the case in relation to private open space. However, in the circumstances of this case, the adjoining open space at Nos 203 207 Treasure Road is only open because of the current configuration of the development on that property. As Mr McLeod submitted:
… Development on an adjoining private lot, such as the liquor store lot in this case, could at any time be changed, so that the present liquor store driveway and parking area would at any time be covered by buildings or similar obstructions.
It would not be consistent with orderly and proper planning for approval of a particular form of development on the site to restrict future development of the adjoining property by, in effect, precluding the placement of any buildings in the area adjoining the common boundary not presently covered by buildings.
Furthermore, and even if the current absence of buildings on part of the adjoining property means that it is an 'open area' for the purposes of the definition of 'development site frontage', that area does not form 'an integral part of the total design' of the proposed development. The adjective 'integral' is relevantly defined in The Macquarie Dictionary (5th ed, 2009) at page 866 as follows:
1. of or relating to a whole; belonging as part of the whole; constituent or component: the integral parts of the human body. 2. necessary to the completeness of the whole. 3. made up of parts which together constitute a whole.
The term 'integral part of the total design', therefore, means that the open space in question must belong as part of the whole design, be a constituent or component part of the total design, or be necessary to the completeness of the whole design. Although there might be an incidental benefit to the front and part of the middle proposed grouped dwellings from the open area of the adjoining property, in terms of lack of overshadowing and interference with daylight, the design of each of the three proposed dwellings on the side of the development facing the adjoining property at Nos 203 207 Treasure Road is substantially the same. It could not be said that the part of the adjoining property not occupied by any buildings adjacent to the common boundary belongs as part of the whole design, is a constituent or congruent part of the total design, or is necessary to the completeness of the whole design, of the proposed development.
As the proposed development involves more than two dwellings and the development site frontage of the site is less than 25 metres, the lower code of R17.5 'shall prevail as the maximum permissible residential density' under cl 5.4.1.5 of TPS 40. The mandatory and emphatic language of cl 5.4.1.5 of TPS 40, together with the fact that it sets out specific requirements in relation to reticulated sewerage and minimum development site frontage which are not reflected in the Residential Design Guidelines in Appendix 7 of the Scheme, indicates that the legislative intention of cl 5.4.1.5 is to exclude the application of cl 5.4.2 in circumstances where, under the former provision, 'the lower code shall prevail as the maximum permissible residential density'.
Although the site has a dual coding, on the proper interpretation of the Scheme, the Council does not have discretion to approve residential development at a density exceeding that applicable at the R17.5 code under cl 5.4.2 of TPS 40, where, under cl 5.4.1.5 of the Scheme, 'the lower code [that is, R17.5] shall prevail as the maximum permissible residential density'. Were this not the case, then the terms and clear intent of cl 5.4.1.5 would be undermined, because development of three or more dwellings could be approved at the higher coding on a property that does not have access to reticulated sewerage or a minimum development site frontage of 25 metres (or the lesser frontage indicated on a Scheme Map).
Furthermore, the purpose and scope of the Residential Design Guidelines stated in the extracts from Appendix 7 of the Scheme set out earlier in these reasons clearly indicate that the Residential Design Guidelines are only applicable in circumstances where development at a residential density above R17.5 can be approved under the Scheme.
Properly interpreted, therefore, cl 5.4.2 of TPS 40 is not an alternative source of discretion to approve a residential development on dual coded land that involves a residential density above the lower code, but rather, is a supplementary provision in relation to design that is only applicable in circumstances where there is discretion to approve a development at a residential density in excess of the lower code under cl 5.4.1.5 of the Scheme.
Conclusion
It follows that there is no discretion to approve the proposed development and that the decision of the City to refuse development approval for the proposed development should be affirmed.
Orders
The Tribunal makes the following orders:
1.The preliminary issue is answered as follows:
There is no discretion to approve the proposed development.
2.The application for review is dismissed.
3.The decision made by the respondent on 12 January 2011 to refuse development approval for the construction of three grouped dwellings at No 201 (Lot 1) Treasure Road, Queens Park is affirmed.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT