Lommond Properties Pty Ltd and Town Of Vincent
[2007] WASAT 25
•1 FEBRUARY 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LOMMOND PROPERTIES PTY LTD and TOWN OF VINCENT [2007] WASAT 25
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
HEARD: 30 JANUARY 2007
DELIVERED : 1 FEBRUARY 2007
FILE NO/S: DR 378 of 2006
BETWEEN: LOMMOND PROPERTIES PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Planning and development Application for declaration that consent approval exists for proposed use motel premises Application to use part of premises for office independent of motel Relevant portion of premises previously designated as office, staff facilities and warehouse Premises previously used for travel agency Proper construction of approval of use as office
Legislation:
City of Perth City Planning Scheme, cl 31, cl 32
State Administrative Tribunal Act 2004 (WA), s 91
Town of Vincent Town Planning Scheme No 1, cl 37
Result:
Application for a declaration is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr KA Adam (Acting as Agent)
Respondent: Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant: KA Adam & Associates (Planners)
Respondent: SJB Planning and Urban Design (Planners)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought review of a refusal to allow part of an existing building on its land to be used as an office. The other part of the land was intended to be used as a lodging house. However in the course of the proceedings the applicant formed the view that no approval was necessary because an existing planning approval, granted in 1997, permitted the proposed use.
The Tribunal was requested to make a declaration to that effect. Accordingly, the Tribunal examined the circumstances leading to the approval in 1997, and its terms. In doing so, the Tribunal took account of the fact that the earlier approval was given under different planning instruments.
Having examined the available documents, the Tribunal concluded that the 1997 approval did not authorise the use proposed by the applicant, and declined to make the declaration. The matter was listed for a hearing as to the merits of the application.
Introduction
In May 2006, the applicant lodged an application for planning approval in respect to premises situated at 103 Harold Street, Highgate. The application sought approval for use of part of the premises as a lodging house, another part of the premises as an office, and for relocation of a swimming pool. The application was refused, and the applicant sought a review of that refusal by the Tribunal.
The applicant proposes that the office premises will be used for the conduct of an architectural practice unrelated to the lodging house, or motel, to be established in another portion of the land. Indeed, I was advised that the proposal is that a strata title subdivision is proposed so that the office portion of the land will become a separate strata title lot.
In the course of the review proceedings, it emerged that the portion of the property proposed for use as an office had previously been used for that purpose when a travel agency business was conducted from the premises between 9 April 1998 and August 2003. It also emerged that approval had been given by the respondent in 1997 for certain alterations to the existing motel, and for the use of part of the premises for "office staff facilities and warehouse/storage". The applicant formed the view that, approval having been given in 1997 for the relevant part of the premises to be used as an office, and that approval having been implemented by the use of the relevant portion as a travel agent's office, no further approval for office use was required. The applicant therefore sought a declaration by the Tribunal, under s 91 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that:
"•the portion of the application development [sic] for which a change of use has been sought by the applicant was previously the subject of approval by the respondent Council for that use;
•the approval was acted upon and the relevant portion of the building used for the approved purpose; and
•consequently, there is a current approval in place for the proposed use."
There was no dispute that approval for a development which included an office use was given by the respondent in 1997 (the 1997 approval), nor is the evidence of the use of the premises as a travel agency between April 1998 and August 2003 in dispute. The respondent contends, however, that the 1997 approval was only for the use of the office area in conjunction with the existing motel business, and did not permit the separate use of that part of the premises as an office, unrelated to the motel. Accordingly, the Town's position is that the travel agency office use was not authorised. It is common ground that the premises have not been used as an office since the travel agency vacated in August 2003.
The application for a declaration was listed, in effect as a preliminary issue, on the basis that the only matter in issue was that portion of the application related to the use of the premises as an office.
The parties approached the hearing of the declaration proceedings on the basis that the relevant issue was a question of the proper construction of the 1997 approval. The applicant's position was that approval was given for an office use, and that that approval stood independent of the use of the balance of the land. The office use having been commenced in 1998, the approval remains current. The respondent's position is that the approved use was for a motel, which necessarily involves a portion of the premises being used for an office, but no separate office use has ever been approved.
On a close review of the 1997 approval, it became evident that the matter was not quite as simple as the parties had anticipated. That is because the 1997 approval was not granted under the present operative town planning scheme, but rather under its predecessor. In order to characterise the nature of the 1997 approval, it is necessary to understand the statutory context in which that approval was granted. Unfortunately, because the parties had not anticipated this difficulty, the evidence available as to the full circumstances of the 1997 approval was not as complete as it might have been. Rather than adjourn the application to enable further enquiries to be made, however, the applicant asked the Tribunal to rule on the declaration on the basis of information presently available, rather than delay the proceedings. At the applicant's request, the Tribunal has made programming orders so that the application can be dealt with on the merits, in the event that the Tribunal declines to make the declaration sought. In the event that the declaration sought is made, then the further programming orders, and the listing order, will be vacated.
Town of Vincent Town Planning Scheme No 1
The operative town planning scheme for the land is the Town of Vincent Town Planning Scheme No 1 (TPS 1). Under TPS 1 the property is zoned residential R80. Sch 1 of TPS 1 defines "office building" to mean:
"Premises used for:
(a)the conduct of the administration requirements or the secretarial or accounting services of a business or industry;
(b)the practice of a profession; or
(c)the provision of business services."
Office building is an "SA" use under the zone table of TPS 1. "SA" means that the use is not permitted unless Council has exercised its discretion and has granted planning approval after giving special notice in accordance with cl 37. Clause 37 contains a requirement to advertise an application and to receive submissions within a prescribed period.
The original application for development approval sought to use a designated portion of the premises for an "office building" use.
The previous planning regime
TPS 1 was published in the Government Gazette on 4 December 1998. It repealed the City of Perth City Planning Scheme (CPS) published on 20 December 1985, and a number of zoning by‑laws applicable to different areas of what formerly comprised the City of Perth boundaries. The former City of Perth was split into four municipalities in 1994, one of them being the Town of Vincent. I am informed by the parties that, prior to TPS 1 coming into force, the Town of Vincent applied the CPS as governing development within its municipal boundaries.
It would appear from the minutes of the meeting at which the 1997 approval was granted, that the zoning for the subject land under the CPS was also residential R80 under the "Suburban Area Use Classes Table" contained in the CPS, "office building" was a prohibited use in the residential R80 zone. The use "motel" was an "SA" use.
The CPS contained the usual long conforming use provisions. Clause 31 of the CPS permitted the Council to permit a change of non‑conforming use, "if the proposed use is, in the opinion of Council, less detrimental to the amenities of the neighbourhood than the non‑conforming use". Clause 32 provided that "when a non‑conforming use or a use approved by the Council under cl 31 has ceased for a period of 12 consecutive months the land and any building thereon shall not thereafter be used otherwise than in conformity with the scheme".
The 1997 approval
The evidence before me as to the historical use of the subject land is fairly limited. It consists of little more than what can be gleaned from the officer's report to the Council of the respondent, as recorded in its minutes of 11 August 1997. At that meeting, the Council adopted the officer's recommendation which was in the following terms:
"Recommendation:
That;
in accordance with the provisions of the Town of Vincent Town Planning Scheme and the Metropolitan Region Scheme the Council APPROVES the application submitted by Bollig Design Group on behalf of the landowners Pacific Motel (WA) Pty Ltd for the refurbishment of the motel and the addition of a new foyer and change of use of a reception centre to office, staff facilities and warehouse/storage on Lot 10 (No. 103) Harold Street corner Stirling Street, Mount Lawley and as shown on plans received on 17 June 1997, subject to:
(i)the submission of a schedule of finishes for approval (including materials, colour scheme and details) at the time of submitting a Building Licence Application;
(ii)the submission of a detailed landscaping plan prior to the issue of a Building Licence; and
(iii)compliance with Environmental Health conditions;
to the satisfaction of the Chief Executive Office."
The report records that the site was currently occupied by the "Pacific Motel and Reception Centre". It records that the application was advertised to immediate adjoining landowners for a period of 14 days, and one submission was received. Under the heading "details", the report states:
"Approval is sought for the refurbishment of the existing motel, including the addition of a new foyer and the change of use of a reception centre area to offices, staff facilities and warehouse/storage. The application proposes to enclose the existing vehicle accessway between the two sections of the motel to create a new foyer. The existing reception centre area (287 square metres) is proposed to be converted for use by the motel business only."
The minutes refer to a report submitted by the applicant in support of the application. Neither that document, nor the application itself, has been produced by either party for the purpose of these proceedings. It might have been helpful in the context of endeavouring to construe the approval, to have had those documents available. The officer's report does, however, purport to summarise the applicant's report in the following terms:
"(i)the development will benefit the residents and users of the area in the following ways:
(a)reduction in street parking demands;
(b)less intensive uses of the area; and
(c)upgrading of the motel frontage;
(ii)the development results in an increase in public areas in order to provide better amenities to the guests of the motel; and
(iii)the change of use of the existing function centre to an office/warehouse use will significantly reduce the existing car parking requirements to the site and adjoining locality."
The officer's report then comments that "the existing motel and reception centre have established non‑conforming use rights and as such are required to be considered by the Council for any changes of use, and/or alterations/additions to existing buildings". The report suggests that the removal of the reception centre might improve the amenity of the neighbourhood by reducing car parking demand.
It can be seen that the recommendation refers to the "Town of Vincent Town Planning Scheme". Mr Bain, on behalf of the Town, suggested that that should be construed as a reference to the CPS based on his understanding that the Town simply applied the CPS as its own town planning scheme pending the enactment of TPS 1. There would not appear to be any other reasonable inference open. Although it is not clear from the minutes, it does appear that the respondent treated the application as an application for a change of non‑conforming use under cl 31 of the CPS.
It would appear, therefore, that, as at December 1998, the approved office use was a non‑conforming use under the CPS. If TPS 1 had not been enacted, the cessation of the office use in 2003 (assuming it was permitted under the 1997 approval) would have resulted, by virtue of cl 32 of CPS, in the loss of the right to use the land for office purpose. The position is complicated, however, because under TPS 1 the office use (being an SA use) was no longer prohibited where Council had exercised its discretion and granted planning approval after the necessary advertising.
The issues
In the circumstances, two issues arise in the application for a declaration.
The first is whether, by reason of the 1997 approval following advertising, the requirements of a "SA" use under TPS 1 were met so that the office use is a permitted use for the land, or whether the office use remained a non‑conforming use which ceased when the premises were vacated by the travel agent in 2003.
The second issue is whether the 1997 approval permitted an office use independent of the motel use. If not, then there is no present approval for the use proposed by the applicant.
Having considered both issues, I have concluded that it is not necessary to determine the first. That is because, I have concluded that, on the basis of the materials before me, there is insufficient foundation to make the declaration sought. That is because I have reached the view that, on a proper construction, the 1997 approval was, as the respondent contends, for the use of the office portions of the building as part of the motel business. That conclusion flows from the description of the application as contained in the officer's report, the relevant passages of which are set out above.
The applicant contends that, if the office use was only as part of the motel business, then an appropriate condition to that effect would have appeared in the approval. However, the description of the application, particularly when read in conjunction with the approved plans, contemplates a single enterprise. The background to the application appears to have been that the previous motel and reception centre business were run as a single enterprise. The motel building, and the former reception building, appear to have previously been separated by a laneway. The alterations to the building enclosed that laneway and converted the area to a "new foyer", providing direct connection between the motel area and the office areas. The approved plan describes the large area subsequently used by the travel agency as "new office/back of house". The area ultimately used by the travel agency includes a room, opening off the new foyer, described on the approved plan as "new baggage store". A baggage store is logically related to the motel operation. Another portion of the area, described as "new office", also opens directly off the "new foyer". There is nothing on the plan, nor in the details of the application disclosed from the Council minutes, which suggests that a separate business might operate from the office space.
In my view, the 1997 approval was, in substance, an approval for modifications to the existing motel business having the effect of removing the reception centre, and replacing it with additional office and storage facilities for use in the context of the motel business. It follows that, on the basis of the information before me, it would appear that the use of the space for a travel agency was not subject to approval under the applicable town planning schemes.
It follows that there is no current approval that would permit to proposed use as an architectural office by the applicant.
In view of that conclusion, it is not necessary to address the first issue described above. On the basis of the conclusions I have reached as to the proper construction of the 1997 approval, I decline to make the declaration sought. The matter should now proceed to a hearing on the merits.
Order
The application for declaration is dismissed.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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