Maraldi and City Of Rockingham
[2007] WASAT 225
•3 SEPTEMBER 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)
CITATION: MARALDI and CITY OF ROCKINGHAM [2007] WASAT 225
MEMBER: MR P McNAB (MEMBER)
HEARD: 28 MAY 2007
DELIVERED : 3 SEPTEMBER 2007
FILE NO/S: CC 1821 of 2006
BETWEEN: PAUL MARALDI
Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords:
Local government - Building - Building licences - Town planning - Condition imposed on a building licence to achieve a planning outcome - Buffer zone to avoid land use conflicts - Construction of dwelling house as of right under town planning scheme - Neighbouring livestock facility - Notation on title of environmental concerns imposed as a condition on a building licence - Whether indirect planning outcome could be achieved by this condition - Interrelationship between planning and building approvals - Inconsistency to be avoided - Consideration of subject matter and the scope and purpose of the building regulation scheme - Building licences concentrated on form, construction, engineering and the like - Tribunal held condition invalid - Application for review allowed and condition set aside
Legislation:
Building Code of Australia
Building Regulations 1989(WA), reg 11, reg 10, reg 13(1)
City of Rockingham Town Planning Scheme No 2
Environmental Protection Authority's Guidance Statement No.3 - Separation Distances between Industrial and Sensitive Land Uses
Local Government (Miscellaneous Provisions) Act 1960(WA), Division 2, Part XV, s 374, s 374(1), s 374(1)(a), s 374(1a), s 374(1)(b), s 374(1b), s 374(1b)(b), s 374(2)(a)
Planning and Development Act 2005 (WA)
Residential Design Codes 2002 (WA)
Transfer of Land Act 1893 (WA), s 70A, s 70A(1), s 70A(2)
Result:
Application for review allowed and condition under review set aside
Category: B
Representation:
Counsel:
Applicant: Mr GR Dean
Respondent: Mr PD Quinlan
Solicitors:
Applicant: Dean & Rowick Barristers & Solicitors
Respondent: Woodhouse Legal
Case(s) referred to in decision(s):
Australian Goat Exporters Pty Ltd & Australian Meat & Livestock Corp, Re (1981) 4 ALD 258
John Street Marina Pty Ltd v Minister for Transport [2005] WASC 171
Macarthur Wind Farm Pty Ltd v Moyne Shire Council & Gardner (2006) VPR 48
Rossiter & Ors v City of Fremantle & Anor [2005] WASC 19
Stock v Anning [2006] WASC 275
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
A preliminary point arose in this review concerning the power of the City of Rockingham to impose a condition on a building licence issued to Mr Paul Maraldi which sought to achieve a well-intentioned and legitimate planning outcome.
The condition aimed to reduce any future possible land use conflicts arising from Mr Maraldi's decision to build a house on his land, which was situated adjacent to a neighbouring livestock holding facility. The condition would obligate Mr Maraldi to place a notation on his certificate of title to that effect.
The essential issue was whether the statutory scheme of building regulation administered by the City could be used to achieve that aim in the absence of any planning control (such as a provision in the town planning scheme).
The Tribunal examined the subject matter and the scope and purpose of the building regulation scheme and concluded that the condition could not be imposed as a matter of law. Building licences essentially dealt with design, construction, engineering, safety and the like and not land use matters, although there was some interrelationship, practical and otherwise, between the two regulatory systems.
The review was allowed and the condition was set aside.
Introduction
This review raises a short but important point concerning the scope of conditions that may be imposed by the City of Rockingham upon the issue of a building licence, conditions which seem to regulate what might ordinarily appear to be a planning issue relating to land use conflicts.
The Tribunal, constituted by Senior Member Raymond, formulated a preliminary issue for resolution as follows:
"Whether, as a matter of law, the City (and the Tribunal) has the power to impose a condition such as condition 1 on a building licence issued under section 374 of the Local Government (Miscellaneous Provisions) Act 1960 (WA)."
Subsequently, the Tribunal (as presently constituted) ordered that:
"[T]he Tribunal stays the operation of condition 1 of the building licence, namely the condition under review, to the intent that if the condition is in substance upheld in the review then the applicant shall subsequently comply with it even if the works under the licence and any other condition has or have been otherwise completed, executed or carried out (as the case requires)."
The building licence
The issue arises in the following circumstances.
The applicant, Mr Maraldi, was issued with a building licence in September 2006 which contained the following disputed condition, (that is, condition 1 referred to above, emphasis added):
"Pursuant to Section 70A of the Transfer of Land Act 1893, notification is to be placed on the Certificate of Title of Lot 473 Telephone Lane, Baldivis advising the existence of a hazard or other factor. The Notification [is] to state as follows:-
'This lot is in close proximity to a livestock holding yard and may be adversely affected by virtue of the noise, odour, dust and/or light emissions from that land use and future similar land uses.' "
Lot 473 is owned by the applicant. The licence was issued for the "Erection (or Alteration) of certain Buildings", namely a "Single Dwelling: Residential" in "accordance with the Plans and Specifications and attached conditions approved by the Surveyor". The building licence is also said to be issued "subject to the provisions of the Building Regulations 1989, the Building Code of Australia" and certain other laws and regulations.
Twenty‑four other conditions are specified, ranging over a wide area of miscellaneous and substantive matters connected with building and construction. Three conditions are specifically noticed by the respondent: condition 3 (permanent cross‑over specifications), condition 8 (rubbish control during building) and condition 21 (environmental noise during building). These will be returned to below. Interestingly, condition 5 notes that "[f]rom time to time flood waters may effect [sic] access to portions of the site."
The town planning aims of the City
In a statement of reasons for its decision furnished to the Tribunal, the respondent City said (emphasis added):
"The application proposes a two‑storey [single] dwelling on Lot 473 Telephone Lane, Baldivis, setback 30 metres from Telephone Lane and approximately 30 metres from the southern boundary of the lot. An existing livestock holding facility currently operates on Lots 1099, 200 and 733 Mundijong Road, licensed by the Department of Environment to hold a maximum of 30,000 sheep at any one time. The landholding is opposite Lot 473.
The generic separation (or buffer) distances between existing rural industry land uses (such as a livestock holding facility) and existing or proposed future sensitive land uses (such as residential dwellings) are set out in the Environmental Protection Authority's Guidance Statement No.3 - Separation Distances between Industrial and Sensitive Land Uses. The Guidance Statement, which came into effect in June 2005, recommends that in the absence of any technical study to suggest otherwise, a generic separation distance of at least 1,000 metres between a livestock holding facility and sensitive land uses be applied.
The Guidance Statement further recommends that where a sensitive land use is proposed within the generic separation distance to an industrial land use, technical studies (such as odour and/or noise studies) are to be prepared demonstrating that the lesser distance will not result in unacceptable impacts.
The Council was advised by the City's Planning Services that with respect to the existing sheep holding facility, no scientific study or assessment has been undertaken or provided that demonstrates the extent of noise and odour impacts from the facility. Therefore, the generic separation distance recommended by the EPA of 1,000 metres is applied.
The Minister for Environment and the Environmental Protection Authority indicated that the City of Rockingham is the appropriate authority for resolving potential land use conflicts.
The Council was further advised by the City's Planning Services that the whole of Lot 473 is contained within the 1,000 metre separation distance to the sheep holding facility, and as such, without scientific study or assessment demonstrating a lesser distance, Lot 473 could not contain a dwelling under the Guidance Statement.
The Council was further advised by the City's Planning Services that where intensification of land use is proposed, such as rezoning and subdivision, within prescribed buffers, it is considered appropriate for a Proponent to undertake relevant technical studies to demonstrate that the proposal would not be unreasonably impacted upon. In this instance, however, the proposed dwelling is a permitted use within the relevant zone and it was considered unreasonable to require such a technical assessment to be undertaken."
It is, as indicated above, common ground here that there are no direct planning controls available to the City (for example, discretionary conditional planning approval under the City of Rockingham Town Planning Scheme No 2 [TPS 2]) to regulate the potential land use conflict (that is, the "close proximity [of the subject land and dwelling] to a livestock holding yard [which thus] may be adversely affected by virtue of the noise, odour, dust and/or light emissions".) The applicant's proposed use or development of this land (that is, the construction of a dwelling house) is "as of right" under TPS 2.
In short, the City has used the only regulatory mechanism available to it (that is, a condition imposed upon an owner under a building licence) to protect what it saw as a legitimate matter of public interest and regulation.
The relevant statutes
Section 70A of the Transfer of Land Act 1893 (WA) (TL Act) provides an apparently consensual method of notifying the public (or any relevant section of it, such a potential future buyer) of any "factor affecting the use or enjoyment [of land]". On the face of it, a notification in the terms set out above relating to the environmental emissions originating from an adjacent livestock holding yard is consistent with s 70A of the TL Act. (So possibly would be the warning about flood waters set out above under condition 5 - although that matter is not required to be specified under s 70A).
So far as is material, s 70A of the TL Act provides as follows (emphasis added):
"70A. Record on title of factors affecting use and enjoyment of land
(1) Where, in relation to land under the operation of this Act -
(a) the local government of the district in which the land is situated; or
(b) a public authority,
considers it desirable that proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land, the local government or the public authority may, on payment of the prescribed fee, cause a notification of the factor to be prepared in an approved form and lodged with the Registrar.
(2) Where -
(a) a notification is lodged under subsection (1); and
(b) the written consent of the proprietor of the land accompanies the notification,
the Registrar shall endorse the certificate of title for the land to that effect …"
The source of the power to impose such a condition in effect obligating the applicant to consent to a s 70A TL Act notification is contended by the City to be s 374 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act). So far as is material, that section provides as follows (emphasis added):
"374. Plans of buildings to be approved by local government
(1) No person shall -
(a) lay out for building, or commence or proceed with a building on, land in a district; or
(b) in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension, or enlargement of the structure of the building, until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence in the prescribed form and on payment of the prescribed fee, a copy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built, or the amendment, alteration, extension, or enlargement proposed to be made, as the case may be, and the area of land to be occupied by each building, or by the amendment, alteration, extension or enlargement of the existing buildings, as the case may be, and the position of the privies and drains and unless he complies with the conditions, if any, that are specified in the licence.
[Penalty not reproduced]
(1a) A building licence referred to in subsection (1) may be issued subject to such conditions as are specified in it including any condition limiting the time within which the licence is valid.
(1b) The authority to approve or refuse to approve plans and specifications submitted under this section may be delegated by a local government to a person appointed to the office of building surveyor, but where a plan and specifications so submitted conform to -
(a) all local laws in force in the relevant district or part of a district in respect of building matters, and the local government's pre-determined policy in respect of building matters; and
(b) all local laws and [town planning] schemes in force in the relevant district or part of a district in respect of town and regional planning matters, and the local government's pre-determined policy in respect of town and regional planning matters, the building surveyor shall not refuse to approve that plan or those specifications without first obtaining the consent of the local government. …
(2)(a) A person who is dissatisfied with the refusal of the local government to approve the plan and specifications may apply to the State Administrative Tribunal for a review of the refusal …"
Section 374 is to be found in "Division 2 - Submission of plans, installation of electricity for lighting, depositing of materials, protective hoardings" of "Part XV - Buildings" of the LG(MP) Act (emphasis added). Such headings are sources in the task of statutory interpretation: see the discussions at par [4.38] and par [4.43] of Pearce DC and Geddes RS, Statutory Interpretation in Australia (LexisNexis, Butterworths, 6th ed, 2006). Notwithstanding these matters, it is to be noticed that the provision itself appears to contemplate, in the circumstances specified, at least some consistency with or recognition of what may be described as "planning matters": see s 374(1b)(b) set out above.
Finally, it is necessary to set out, in a truncated form at least, some relevant parts of the related Building Regulations 1989 (WA). These regulations are made under the LG(MP) Act. Pearce and Geddes, above, at par [3.41], suggest that "[i]f there are regulations that, together with the principal Act, form part of a legislative scheme, it may be useful to refer to them to ascertain the nature of the scheme." In ascertaining the scope of a building licence issued under Part XV of the LG(MP) Act, it seems helpful to refer here to the associated regulations as a statutory scheme or something closely analogous thereto.
Regulation 11 of the Building Regulations 1989 provides for the "particulars to accompany" an application for a building licence. Amongst the main obligations imposed upon an applicant are the following. The applicant must "deposit" various "Building details" (that is, various building plans); "Block details" (plans as to the site); and details of the "Specifications"; "Performance levels and requirements" and "CodeMark certificates" (mainly in relation to BCA requirements). Most of these requirements do not fall within ordinary town planning concepts focusing, as such, on land use. Rather, unsurprisingly, they appear to be very much concerned with the technical aspects of design, construction, engineering and measurement. In addition, the applicant drew attention to reg 10 and reg 13(1) of the Building Regulations 1989. The latter regulation provides as follows:
"13. Commencement of work
Buildings or alterations
(1) A builder shall not commence to construct, alter, add to or underpin any building and shall not commence any earthworks, necessary for, or incidental to, that construction, alteration, addition or underpinning until ‑
(a) the plans, drawings and specifications have been approved;
(b) the building surveyor has stamped the plans, drawings and specifications with the official stamp showing the number of the approval and the date of approval;
(c) the builder has paid the appropriate fee …; and
(d) a licence has been issued in the form [prescribed]."
The City's arguments
Mr Quinlan, of counsel, for the City, argues that the condition‑making power under s 374(1a) is "perfectly general in terms and is subject to no express constraints or limitations". The provision will, he argues, have application to a "wide range of matters" relevant to the proposed building and "the area of land occupied by each building" (picking up the language of s 374(1)(b)).
Next, he draws attention to the "planning matters" contemplated by s 374(1b)(b) ‑ mentioned above. On the key issue of whether a clear distinction (a "bright line") can ever be drawn between matters relating to the construction of a building and general planning matters, Mr Quinlan argues that the "construction of a building (including its appearance and its relationship to a locality) are necessarily [forms of such] 'planning' matters". Already several other of the conditions seem to relate to "amenity and other planning issues". He noted conditions 3, 8 and 21 mentioned above already.
On the apparently consensual nature of s 70A of the TL Act Mr Quinlan argues that such an obligation has been imposed by this Tribunal in various planning matters and is lawful and legitimate. Thus Jenkins J in John Street Marina Pty Ltd v Minister for Transport [2005] WASC 171 said, at [35] (emphasis added):
"Conditions of development approval are often secured by other conditions. For example, in this case there was a condition of development that certain land be ceded free of cost to the crown for the purpose of a public reserve. In other cases, a condition may be placed on the development approval that the proprietor consent to a notation being placed on the title, pursuant to the Act, s 70A, of a condition that affects the use or enjoyment of the land. There may also be conditions placed on a development which require the proprietor to create a covenant or easement for the benefit of the local government or a public authority … Some of those types of conditions may require the proprietor to create caveatable interests in favour of a local government or a public authority …"
The applicant's arguments
Mr Dean, for the applicant, argues that the contextual and legislative history of s 374 of the LG(MP) Act indicates that it reflects a well‑established dichotomy between planning approval and building approval. This is also reflected in the Building Regulations 1989 themselves. Thus, it is contended on behalf of the applicant that "[b]uilding approval is granted in the form of a building licence" and planning approval "is governed by the relevant town planning scheme and the Planning and Development Act 2005 (WA)" (PD Act).
Mr Dean cites in support of these contentions Stock v Anning[2006] WASC 275 (Johnson J) at [47] ‑ [48], emphasis added:
"In Western Australia, the erection of a building requires two separate types of local government approval: planning approval and building approval. The requirement for planning consent with respect to the use and development of land is a requirement of a Shire's town planning scheme which is made pursuant to the Town Planning and Development Act 1928 [the predecessor to the PD Act] and has statutory effect. Building approval is granted in the form of a building licence which is required by s 374(1) of the [LG(MP) Act] and reg 13(1) of the Building Regulations 1989. In view of the appellant's allegation that he was told he did not require a further building approval for the games room because it was appurtenant to the dwelling house, it is necessary to set out the types of structures or building works that require a building licence under s 374(1). Sub-section (1) provides that, until the prescribed form, a copy of the specifications and a plan clearly showing the proposed structure is submitted to the local government and the local government has granted approval by issuing a building licence, "[n]o person shall ‑ (a) lay out for building, or commence or proceed with a building on, land in a district; or (b) in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension or enlargement of the structure of the building". It can be seen that the provision is extremely wide in its terms and even applies to changes to a structure already erected on the land, such as the dwelling house. Even if a structure could be said to be appurtenant to another, a separate building licence would be required.
As counsel for the respondent submitted, the requirements for planning approval and for building approval are separate and independent statutory regimes, both of which must be complied with in order to lawfully erect a building on land. Therefore, even if the appellant had been granted planning approval with respect to the games room, he was still under a statutory obligation to obtain a building licence before relocating the games room to Lot 182. Although the two forms of approval are separate and independent obligations, the more usual practice in local government is for planning approval to be first obtained before a building licence issues. If planning approval is refused then the matter goes no further as there is no point in granting a building licence only as no construction can take place without both approvals being in place."
Mr Dean also suggests that as the application of s 70A leads to, in effect, an "encumbrance on title" it would require clear words of legislative intent to authorise a non-consensual obligation, at least in respect of a condition on a building licence.
Discussion of the relevant principles
There seems to be no issue that, taken alone, the motivation of the City in imposing the impugned condition is sound. The Victorian Tribunal, in Macarthur Wind Farm Pty Ltd v Moyne Shire Council & Gardner (2006) VPR 48, has observed that, at [55]:
"Planning literature is full of examples where conflict between incompatible uses leads to ongoing complaints and a souring of neighbourly relations. Often the uses [were] established prior to the introduction of planning controls or where controls were inadequate to prevent incompatible uses establishing."
Further, it seems that such a condition could arguably be imposed as a condition of planning approval. The issue is whether the scope of s 374 of the LG(MP) Act extends so far.
It may be accepted that as a general proposition there is a dichotomy between planning and building approval regimes. But, there is also, on occasion, some overlap or other interrelationship between the two regulatory schemes, both as a matter of practice and in any particular statutory scheme (such as that which we are here considering ‑ see the references to town planning schemes and policies in s 374(1b)(b)). So, in Rossiter & Ors v City of Fremantle & Anor [2005] WASC 19, EM Heenan J quashed a building licence that had been issued "based on a grant of planning approval", which itself was quashed in the same proceeding, at [68]).
The relevant principles for discovering whether a particular condition is authorised by an enactment are well established. They were summarised by the Administrative Appeals Tribunal in Australian Goat Exporters Pty Ltd & Australian Meat & Livestock Corp, Re (1981) 4 ALD 258 at 264, a case dealing with the imposition of a condition on a licence, as follows:
"Whilst the discretion [to impose a condition] is undefined, it is neither arbitrary nor completely unlimited. Its proper limits are normally to be found within the subject matter and the scope and purpose of the Act (cf Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505) unless an examination of the statute discloses that no general criteria can be inferred which will serve to limit the considerations to which the decision maker may have regard (cf Murphyores Incorporated Pty Ltd v Commonwealth of Australia (1976) 9 ALR 199 at 207 per Stephen J and at 215 per Mason J."
The statutory building regulation scheme we are here concerned with must thus be examined as to its "subject matter and [its] scope and purpose". It is tolerably clear from an examination of the provisions (both from the LG(MP) Act and the accompanying regulations) set out above, considered more or less as a statutory scheme, that the Legislature was principally concerned to regulate matters of design form, blueprints, specification, construction, engineering, safety and the like in relation to a specified construction project (which otherwise complies with any relevant planning controls).
Here, the attempted achievement, indirectly, of a land use buffer (or amelioration of future land use conflict) involving a neighbouring property by way of a notation on title (however well‑intentioned) has little, if any, connection with such matters.
It is unnecessary to fully explore what was intended to be encompassed by the reference to "schemes in force in the relevant district … in respect of town and regional planning matters, and the local government's pre‑determined policy in respect of town and regional planning matters" appearing in s 374(1b)(b). As has already been mentioned, there is some practical interrelationship or overlap between planning matters and building licences. One candidate that might illustrate that interrelationship is the comprehensive statement of planning policy known as the Residential Design Codes 2002 (WA). The need to avoid inconsistency in the approvals regime is otherwise obvious.
Neither the City (or this Tribunal on review) has the power or jurisdiction to impose condition 1.
As the answer to the preliminary question wholly determines the review in the applicant's favour it is appropriate that the Tribunal goes on to set aside the condition under review. There will be orders to that effect.
Orders
For the reasons given above, the Tribunal makes the following orders:
1.The preliminary question is wholly determined in favour of the applicant.
2.The application for review is therefore allowed.
3.Consequently, the decision to impose condition 1 is set aside and in substitution for that decision there will be a decision not to impose condition 1.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER
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