LE and CITY OF STIRLING
[2017] WASAT 63
•26 APRIL 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT (LOCAL PLANNING SCHEMES) REGULATIONS 2015 (WA)
CITATION: LE and CITY OF STIRLING [2017] WASAT 63
MEMBER: MR T CAREY (MEMBER)
HEARD: 21 FEBRUARY AND 17 MARCH 2017
DELIVERED : 26 APRIL 2017
FILE NO/S: DR 366 of 2016
BETWEEN: TUAN MINH LE
Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Planning - Development - Conditions requiring truncation of right of way and land to be ceded to allow widening of right of way - Whether conditions able to be applied under planning scheme and policy documents - Whether conditions valid - Legitimate planning purpose - Whether conditions reasonably and fairly relate to proposed development
Legislation:
City of Stirling Local Planning Scheme No 3, cl 5.11
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 67, cl 67(s)
Result:
Application successful
Decision under review varied by revoking conditions of development approval
Summary of Tribunal's decision:
The applicant applied for development approval to enable extension of an existing house and construction of a carport. The carport is to be accessed from a right of way at the rear of the property.
The respondent granted the approval sought but imposed conditions for a 2 metre by 2 metre truncation at the intersection of the right of way and a side street, to be transferred to the Crown free of cost, and for the further ceding of land adjoining the right of way for the purpose of widening it. The applicant sought review of both conditions.
The Tribunal considered whether each condition was capable of application in accordance with the City of Stirling Local Planning Scheme No 3 and a local planning policy and management strategy pertaining to rights of way. The Tribunal concluded that the condition requiring the truncation was so capable. In relation to ceding land to allow the right of way widening, it found that such a condition, applicable in the case of subdivision, did not apply to redevelopment, as here.
The Tribunal then dealt with validity of each condition. The Tribunal found that the truncation condition served a legitimate planning purpose related to management of vehicular traffic in the right of way. However, there was no evidence that the approved development would itself have any particular impact on any such planning purpose. Therefore, consistent with legal authority, the condition could not be upheld, as it could not be said to reasonably and fairly relate to the proposed development (nexus test).
The condition to facilitate the right of way widening, according to the Tribunal, failed the legitimate planning purpose test because the respondent's own planning documents did not warrant imposing the condition. It also failed the nexus test, due to the lack of evidence that the redevelopment would lead to an increased use of, or other reason for widening, the right-of-way.
The Tribunal varied the responden'’s decision to approve the development by revoking the two conditions in question. It also declined the respondent's invitation to direct that a restrictive covenant be placed on the title prohibiting development on the land sought for right of way widening, regarding the review application as an inappropriate occasion to impose such a restriction.
Category: B
Representation:
Counsel:
Applicant: Self Represented
Respondent: Ms P Wojcik (Acting as Agent)
Solicitors:
Applicant: Self Represented
Respondent: Self Represented
Case(s) referred to in decision(s):
BarrettLennard and Western Australian Planning Commission [2006] WASAT 319
Newbury District Council v Secretary of State for the Environment (1981) AC 578
Reid v Western Australian Planning Commission [2016] WASCA 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Tuan Minh Le (Le) seeks review of two conditions of a development approval relating to Le's residence at 18 Walcott Street, Mount Lawley (land). The proposed development consists of partial demolition of Le's existing house, an extension to the house, and at the rear of the property, construction of a freestanding carport. The carport will be accessed from a right of way (Bercove Lane).
The land is bound by a residential property to the west, Clotilde Street to the east, Walcott Street to the south and Bercove Lane to the north. Bercove Lane adjoins Clotilde Street at right angles.
The two conditions of approval imposed by the City of Stirling (City) to which Le objects are:
Condition 5:
Prior to occupation of the development, a 2.0m x 2.0m truncation at the intersection of the right of way and Clotilde Street shall be transferred to the Crown free of cost in accordance with the City's Local Planning Policy No. 6.5 Development Abutting Rights of Way.
Condition 7:
The right of way Bercove Lane along the north boundary of the subject land to be widened by 0.485m and the required land ceded free of costs to the Crown, prior to occupation of development.
The land is located in a low density residential area consisting primarily of single houses. It is zoned Residential R20 under the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme). The land is located within a heritage protection area designated by the City's heritage protection policy.
Planning framework
Clause 67 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provides relevantly:
67.Matters to be considered by local government
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning[;]
…
(g)any local planning policy for the Scheme area;
…
(s)the adequacy of
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety[.]
LPS 3 was approved by the Minister for Planning on 19 July 2010 and gazetted on 6 August 2010.
Clause 5.11 of LPS 3 provides for the ceding of land to allow widening of rights of way. It states:
The owner of any site affected by a right of way widening under the Local Planning Policy relating to Right of Ways shall cede such right of way widening free of cost as a condition of development approval or as a condition of subdivision or strata subdivision supported by the Council.
Since 2010, the City's relevant local planning policy has been Local Planning Policy 6.5 Development Abutting Rights of Way (LPP 6.5).
LPP 6.5 provides for rights of way to be allocated a 'category' according to the City's ROW Category Designation System, based on assessment of the relative suitability for use and strategic benefits of the right of way (ROW).
The City's Category Designation System is set out in its Rights of Way Management Strategy, adopted in 2009 (ROW Management Strategy). The ROW Management Strategy identifies differing management approaches to the City's rights of way depending upon their category. In respect of Category 1 rights of way, according to the ROW Management Strategy:
ROWs in this category have high strategic value and should be in public ownership. These ROWs are generally considered to have significant traffic management benefits, in particular ROWs that provide access to commercial properties and those parallel to regional roads[.]
It is an agreed fact that Bercove Lane is a dedicated laneway, which, at least for current purposes, qualifies it as a Category 1 ROW.
Section 6 of LPP 6.5, entitled 'General Development Provisions', contains the following provision which, on its face, is applicable to the land:
The following provisions shall apply to developments abutting all ROW.
…
6.4Provide corner truncations free of costs to the Crown for corner lots abutting ROW including:
…
6.4.22.0m x 2.0m corner truncations for lots at the intersection of a ROW at least 5.0m wide and a street[.]
Bercove Lane is 5.03 metres wide.
Section 7 of LPP 6.5, entitled 'Specific Development Provisions', contains the following provisions to apply to Category 1 rights of way:
Setbacks
7.1.5.2All setback provisions from the ROW are to be determined after allowing for any ROW widening requirement from the lot[.]
…
Widening of ROW
7.1.9.1The City is seeking to widen Rights of Way to which it has committed to upgrading to 6.0m. The City will seek to have Subdivisions abutting the Category 1 ROW transfer an appropriate widening (in the majority of cases, 0.5m) along the ROW boundary to the City free of cost as a condition of subdivision[.]
The ROW Management Strategy contains a series of principles of the City's approach to the management of Category 1 ROWs, including to:
C1.2acquire, dedicate and upgrade (including lighting) the remaining Category 1 ROWs, with the owners of abutting lots being required to make financial contributions towards the ROW upgrade works program in the form of development contributions;
…
C1.5progressively widen these ROWs to 6 metres as land is ceded free of cost from adjoining developments; and
C1.6assess all development applications abutting Category 1 ROWs according to their impact on and use of the ROWs, as follows:
…
• Developments on all corner lots abutting ROWs must provide corner truncations to the satisfaction of the City's Engineering Business Design Unit to ensure reasonable sightline and turning area for vehicles using the ROWs[.]
Issues for determination
The City contends in respect of both of Condition 5 and Condition 7 that the condition is able to be applied in accordance with the Scheme, relevant local planning policy and management strategy. Further, it contends that each condition is a valid exercise of its planning approval power. I am satisfied that these two broad issues fall to be determined in deciding the application before me. If either is determined in the negative, the condition must be revoked.
Are the conditions applicable under the planning instruments?
a) Condition 5
In my view, Condition 5 is capable of being applied upon consideration of Le's development application by reason of LPP 6.5 section 6.4, which reflects the principle in ROW Management Strategy clause C1.6 requiring that corner truncations be provided for developments on all corner lots abutting rights of way.
The truncation is consistent with LPS 3 cl 5.11 as 'a right of way widening under the Local Planning Policy relating to Right of Ways', which, in turn, is an exercise of the powers of the City referred to in the LPS Regulations, Sch 2 cl 67, particularly cl 67(s).
b) Condition 7
In order for this condition to apply, Le, as owner of the land, must be 'affected by a right of way widening under the Local Planning Policy relating to Right of Ways' (LPS 3 cl 5.11). It is only upon satisfaction of this requirement that the consequence of ceding land for ROW widening, as a condition of either development approval or subdivision or strata subdivision supported by Council, is invoked.
LPP 6.5 is the relevant policy relating to rights of way. Section 7.1.9.1 is the only section which discloses the mechanism by which the object referred to in the ROW Management Strategy principle C.1.5 of widening an ROW such as Bercove Lane to six metres is to be achieved. It speaks only of subdivisions as the event when this might occur, and not developments. This omission might have been unintentional, but it is not for the Tribunal to fill gaps in the City's planning regime. The omission is supported, at least to some extent, by the fact that the ROW Management Strategy, which predates LPP 6.5, contains no principle requiring the ceding of part of land proposed to be developed for ROW widening, as is the case for the compulsory truncation of corner lots up for development.
The City then argues that LPS 3 ranks higher than the City's planning policy, and cl 5.11 provides for ROW widening by ceding 'as a condition of development approval' as well as subdivision. The short answer is that it does, but only where the owner of land is affected by an ROW widening under LPP 6.5. Le is not so affected in respect of the land required by Condition 7 to be ceded for the ROW.
This is not to say that, as the City's planning instruments stand, the reference to ceding 'as a condition of development approval' in LPS 3 cl 5.11 is otiose. Condition 5 is an illustration of such a ceding.
Are the conditions valid?
In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 (Temwood) at [57] per McHugh J, the High Court endorsed the tests for validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment (1981) AC 578 (Newbury) in the following terms:
[A] condition attached to a grant of planning permission will not be valid … unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
I will consider the conditions the subject of the application with reference to each of these stipulations.
1) Planning purpose
Le did not contend that either condition is not for a planning purpose, nor that it is for some ulterior purpose.
Ms Wojcik, who appeared for the City, described the planning purpose of Condition 5 in the following terms:
[T]he truncation serves a planning purpose because it secures vehicular and pedestrian safety … It's there to ensure adequate sight lines for both vehicles and pedestrians, and also, to allow for a turning [circle] for all vehicles …
Sight lines are especially important given there is a footpath directly abutting … Clotilde Street[.]
(T:8; 17.03.17)
I have already indicated my view of Condition 5 as an exercise of the City's planning power fashioned by the matters it is required by the LPS Regulations to take into account, and, in particular, vehicular access to the land, the manoeuvring of vehicles and traffic flow.
Condition 7 is amenable to the same analysis. Ms Wojcik put the planning purpose behind Condition 7 in this way:
Requiring the widening will allow for the category 1 right of way to be retained in public ownership. This means that the [C]ity will be able to manage the right of way in its entirety once all the land is ceded. This in turn will facilitate an adequate means of access to the proposed development from the rear right of way.
(T:9; 17.03.17)
The first two sentences of this passage might be accepted (the third is concerned with the nexus question with which I deal below). However, because the ROW widening policy regime does not apply to the development in question, Condition 7 fails the planning purpose stipulation.
2) Nexus
Recently, the Western Australia Court of Appeal considered the application of the same principles identified in Temwood in relation to conditions of a subdivision of land in Reid v Western Australian Planning Commission [2016] WASCA 181 (Reid).
In Reid, the Western Australian Planning Commission granted approval of a subdivision subject to conditions requiring the appellants to provide electricity supply below ground; grant a restrictive covenant in perpetuity requiring the appellant and future proprietors to conserve an area of land in its current condition, thereby precluding any developmental use of that portion of land; and obtaining approval for a fire management plan to protect the restrictive covenant benefit. The Tribunal upheld the conditions referred to. The Court of Appeal set aside the Tribunal's decision.
In relation to the second of the Newbury conditions Martin CJ said, in Reid at [37]:
[The relevant] principles require the establishment of a connection or relationship between the planning purpose for which the condition has been imposed, and the likely or possible consequences of the proposed subdivision. That connection or relationship must be established as a matter of fact. A relevant connection or relationship will not be established merely because the application for subdivision approval provides an opportunity or occasion to impose a condition in the furtherance of a proper planning purpose. Rather, the relevant connection or relationship must be between the planning purpose to be served by the condition and the likely or possible consequences of the proposed subdivision - such as a need for public open space, or a foreshore reserve, or improved road access as a consequence of residential subdivision and development.
The Court of Appeal found that the Tribunal had erred in upholding the relevant conditions without having made any finding of fact to the effect that the proposed subdivision would, or might, have any consequences with respect to the use or development of the land which could enliven a need to achieve or promote a particular planning purpose. According to the Chief Justice in Reid at [40]:
[I]n effect, the Tribunal has concluded that because there is a general policy against the subdivision of rural land unless an environmental benefit or offset is provided as the price of the subdivision (a proper planning purpose), any application for the subdivision of rural land provides an appropriate occasion for the furtherance of that purpose, without more. However, the test enunciated in the cases … requires more than that the condition be imposed in the furtherance of a proper planning purpose. Rather, the condition and the purpose which it serves must reasonably and fairly relate to the particular development proposed. So, in the present case, the conditions imposed by the Commission in order to protect the environmental values of the land and to require electricity to be supplied below ground rather than above ground could only reasonably and fairly relate to the proposed subdivision if the likely or possible consequences of the subdivision would have some impact or effect upon the environmental values of the land or the desirability of electricity being supplied to the land below the ground rather than above it.
It is therefore necessary for me to make such findings as are open on the evidence as to the consequences of the proposed development which may, in the absence of the conditions in question, impact upon the planning purpose for which they have been imposed.
Regrettably, the City called no witness, and produced no documentary evidence, going to this vital question. The City's statement of issues, facts and contentions (Exhibit 3) simply asserts as fact:
The conditions fairly and reasonably relate to the development for which approval has been given, as the development relies of [sic] the ROW for primary vehicle access.
In the same document, the City goes on to state:
[The City] has consistently applied conditions requiring the ROW to be ceded to developments in accordance with the Scheme and LPP 6.5 provisions as guided by the [ROW Management Strategy].
Le gave some anecdotal evidence regarding relative use of Bercove Lane before and after the proposed development. He applied for the development approval shortly after purchasing the property. What he was able to say was that the land currently has an enclosed single garage and a four bay carport at the rear of the land, all accessed from Bercove Lane. By contrast, the approved development will have a double carport, thus effectively reducing the land's capacity to house cars by three bays. This, according to Le, indicated that vehicular use of Bercove Lane would be reduced as a result of Le's development.
Also, helpfully, Le provided illustrations in his statement of issues facts and contentions (Exhibit 1) of the appearances of the intersection of Bercove Lane in the events of Condition 5 being imposed or not.
When I put to Ms Wojcik that there was previously a carport in the rear of Le's property, and asked her whether the traffic generated by the new carport needed to be in addition to the previous traffic level, her response was:
Not necessarily because I guess this is an upgrade to that. I don't know how often that old garage was realistically used, because it was quite an old structure. But, obviously this will seek to upgrade it to a more permanent arrangement, because it will be upgraded to our current contemporary standards[.]
(T:9; 17.03.17)
Ms Wocjik went on to assert a nexus between impact of the redevelopment and Condition 7, thus:
[T]he proposal includes a construction of a double carport with sole access from the right of way. As the development proposes access to a category 1 laneway, which has a number of properties with rear access, regard needs to be given to achieving the ultimate objective of the [LPP] 6.5 and the right of way management strategy. Which is facilitating widening to six metres[.]
(T:9; 17.03.17)
In relation to Condition 5, Ms Wocjik said:
[T]he carport itself is coming closer to the corner than the garage, that their original garage is at the moment. The whole purpose of the two by two metre truncation is for sight lines[.]
[T]hey're bringing [the carport] closer to the corner, which is the area we are trying to maintain the sight lines in[.]
(T:1011; 17.03.17)
I do not consider that it is open on the evidence presented to find any impact of the approved development upon the planning purpose for which Condition 5 has been imposed. The amended plans showing the existing garage, on the one hand, and the proposed carport, on the other, in the City's bundle of documents (Exhibit 4) indicate the eastern boundary of the carport to be set back 2.0 metres from the eastern fenceline of the land, compared with a 2.3 metre setback in the case of the garage. Bearing in mind the City's 'whole purpose' of any truncation is to 'maintain sight lines', the evidence does not disclose any disadvantage in terms of sight lines. Whether a notional person travelling in a car, on a bicycle, or on foot is proceeding from Clotilde Street into Bercove Lane or the other direction, there is no evidence that his or her sightline at the access point to the ROW will be reduced by the built carport. A consideration of the amended plans and Le's illustrations in Exhibit 1 suggests that it is the fence, not any planned building, which has the impact. It might also be suggested that, to the extent that there is a difference as one drives along Bercove Lane towards Clotilde Street, the driver's sightline might be improved subsequent to the development due to an unenclosed carport standing very close to where an enclosed garage once stood.
There is no evidence to suggest that the development will have any particular impact on the use of Bercove Lane. Ms Wocjik was only prepared to go as far as referring to the 'upgrading to contemporary standards' which the carport represented, but did not provide any basis for suggesting that this would lead to an increased use of, or other reason for widening, the ROW.
The strong impression I have gained is that the City took the opportunity presented by Le's development application to impose both conditions in furtherance of a planning purpose. Having decided that the conditions imposed did not reasonably and fairly relate to the proposed development, both conditions fail the second Newbury test of validity.
3) Reasonableness
Given my previous findings, I will mention only briefly the third Newbury requirement, reasonableness.
Assuming the conditions in question had a legitimate planning purpose, and fairly and reasonably related to the proposed development, I consider, subject to one caveat, that each was reasonable in the required sense of not being so unreasonable that no reasonable planning authority could have imposed them. On the stated assumptions, both Condition 5 and Condition 7 would have been appropriate applications of the ROW planning regime.
The caveat concerns Le's submission that, in respect of both conditions, his is the only development where the condition has been imposed, where at least one other development to which the condition was equally applicable was not.
The Tribunal would require the full circumstances of the other development applications before determining whether it might regard the City's decision under review to be so repugnant, based on its inconsistency with other decisions, as to deserve the epithet 'so unreasonable that no reasonable planning authority could have made them'. Those circumstances are not before me. In light of my other findings and conclusions, I do not consider pursuing this aspect of the matter further to be worthwhile.
Conclusion
For the reasons I have given, I have found that Condition 5 is directed to a proper planning purpose, but does not fairly and reasonably relate to the proposed development. Condition 7 does not satisfy the proper planning purpose test, and does not fairly and reasonably relate to the proposed development. The correct and preferable decision, in my opinion, is therefore to vary the City's decision in respect of Le's development application by revoking both conditions.
The City, in oral submissions, sought a further variation in the event that Condition 7 was not upheld whereby a restrictive covenant be placed on the title of the land prohibiting any development within the area sought to be ceded for the ROW widening. It was pointed out that such a condition has been affirmed in at least one previous review matter before the Tribunal.
My decision in this case represents the rejection of a condition in purported furtherance of a planning objective (ROW widening). Caution needs to be exercised in those circumstances before acceding to a request that the planning objective be met, or partially met, in some other way. In BarrettLennard and Western Australian Planning Commission [2006] WASAT 319 at [49], the Tribunal said:
[T]he Tribunal as a general principle does not support the use of restrictive covenants as a land use control in substitute for planning provisions[.]
There is no building within the relevant area currently, and none proposed in the approved development. I do not regard this review as an appropriate occasion to impose a restriction to facilitate invocation of the ROW widening policy sometime (possibly many years) in the future.
Order
The Tribunal will issue the following order:
1.The respondent's Determination on Application for Planning Approval dated 14 October 2016 in respect of the applicant's proposed development at 18 Walcott Street, Mount Lawley is varied by revoking Condition 5 and Condition 7.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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