Mitra and Ors and Green and Ors
[2006] WASAT 42
•21 FEBRUARY 2006
MITRA & ORS and GREEN & ORS [2006] WASAT 42
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 42 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:2999/2005 | 25 NOVEMBER 2005 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 21/02/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | JIM MITRA LESLIE JACOBS J & L PROPERTY GROUP PTY TLD WALTER HOLDINGS PTY LTD CRAIG BRIAN GREEN BONNIE-VALE PTY LTD ALLEN ARDLEY |
Catchwords: | Strata titles Whether lot used as office constitutes a change of use Whether in breach of strata rules and/or restriction on use endorsed on strata plan |
Legislation: | City of Mandurah Town Planning Scheme No 3, cl 3.1.1, cl 3.2, cl 3.2.1, cl 4.10, cl 4.10.2, cl 7.1.1, cl 7.1.2 Liquor Licensing Act 1988 (WA) Strata Titles Act 1985 (WA), s 6, s 83(1) Town Planning and Development Act 1928 (WA), s 2, s 73 |
Case References: | Bonnie-Vale Pty Ltd and Walter Holdings Pty Ltd & Anor [2005] WASAT 267 Lizzio v Ryde Municipal Council (1983) 48 ALR 11 MacKay Conservation Group Inc v Mackay City Council [2005] QPEC 94 Moss and the Owners of Bijou Marina Village-Strata Plan 36747 & Others [2005] WASAT 180 Re Minister for Planning; ex parte City of Canning (Supreme Court of Western Australia (Full Court)) 101 LGERA 284 Wasaga & Ors v Torres Shire Council & Anor [2003] QPELR 191 Nil |
Orders | For the above reasons, the Tribunal orders as follows:,1. Subject to further order:,1.1 Bonnie-Vale Pty Ltd, its officers, servants or agents are to refrain from:,1.1.1 storing any goods in lot 26 on strata plan 36239;,1.1.2 using the said lot 26 as an office/reception;,1.1.3 using the said lot 26 for any other purpose than for short term tourist accommodation.,1.2 Allen Ardley is to refrain from permitting the said lot 26 to be used:,1.2.1 to store any goods;,1.2.2 as an office/reception;,1.2.3 for any other purpose than for short term tourist accommodation.,2. Order 1 is to take effect on a date six months from the date of this order or from such earlier, or later date, as the Tribunal may direct on good cause.,3. The parties have liberty to apply. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : MITRA & ORS and GREEN & ORS [2006] WASAT 42 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 25 NOVEMBER 2005 DELIVERED : 21 FEBRUARY 2006 FILE NO/S : CC 2999 of 2005 BETWEEN : JIM MITRA
- LESLIE JACOBS
J & L PROPERTY GROUP PTY TLD
WALTER HOLDINGS PTY LTD
Applicants
AND
CRAIG BRIAN GREEN
BONNIE-VALE PTY LTD
First and Third Respondents
ALLEN ARDLEY
Second Respondent
Catchwords:
Strata titles Whether lot used as office constitutes a change of use Whether in breach of strata rules and/or restriction on use endorsed on strata plan
(Page 2)
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 3.1.1, cl 3.2, cl 3.2.1, cl 4.10, cl 4.10.2, cl 7.1.1, cl 7.1.2
Liquor Licensing Act 1988 (WA)
Strata Titles Act 1985 (WA), s 6, s 83(1)
Town Planning and Development Act 1928 (WA), s 2, s 73
Result:
Application granted
Category: B
Representation:
Counsel:
Applicants : Mr M Buss QC
First and Third Respondents : Mr M Hardy
Second Respondent : Mr A Shaw
Solicitors:
Applicants : Talbot & Olivier
First and Third Respondents : Hardy Bowen
Second Respondent : Atkinson and Associates
Case(s) referred to in decision(s):
Bonnie-Vale Pty Ltd and Walter Holdings Pty Ltd & Anor [2005] WASAT 267
Lizzio v Ryde Municipal Council (1983) 48 ALR 11
MacKay Conservation Group Inc v Mackay City Council [2005] QPEC 94
Moss and the Owners of Bijou Marina Village-Strata Plan 36747 & Others [2005] WASAT 180
Re Minister for Planning; ex parte City of Canning (Supreme Court of Western Australia (Full Court)) 101 LGERA 284
Wasaga & Ors v Torres Shire Council & Anor [2003] QPELR 191
(Page 3)
Case(s) also cited:
Nil
(Page 4)
Summary of Tribunal's decision
1 The applicants applied for orders restraining the first and third named respondents from carrying on the business of making available lots in the parcel for accommodation and from making use of lot 26 for storing goods, as an office/reception and for any purpose other than short-term tourist accommodation. An order was sought against the second named respondent restraining him from permitting lot 26 to be used to store goods, as an office/reception, or for any other purpose than for short-term tourist accommodation.
2 The applicants' case was founded on two main contentions. Firstly, it was contended that the use of the whole of the parcel was restricted to that of a tourist resort. Until about March 2005, the parcel had been operated under lease and management agreement terms by a single operator. Thereafter the respondents and a majority of lot owners had set up a separate business allegedly in breach of such restriction.
3 Secondly, reliance was placed on a by-law of the strata company prohibiting the use of any lot for any purpose which may be in breach of any local government regulation or by-law, or any other government and regulating authority law. It was contended that the respondents had effected a change in use of lot 26, from the provision of short stay accommodation, to use for storage and as an office/reception area for the operation of the business in which the first and second respondents were engaged. Further, that this was a change of use for which approval was required from the Council of the City of Mandurah pursuant to its applicable town planning scheme and that, as such consent had not been obtained, the use of lot 26 in this manner constituted a breach of a regulating authority law and consequently also of the by-law.
4 The Tribunal concluded that on a proper construction of the restriction endorsed on the strata plan and the by-laws, a change in the operating structure did not result in the use of the parcel as a whole being other than that of a tourist resort. However, the change in the use of lot 26 was held to constitute a change in use for which the approval for the Council of the City of Mandurah was required and that such use without approval constituted both a breach of the town planning scheme and the by-laws of the strata company. The Tribunal determined that appropriate orders should issue to take effect immediately following the expiry of a six month period from the date of the orders, or from such earlier or later date as the Tribunal might direct on good cause, with liberty to apply, in
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- the event that the third named respondent failed to lodge the necessary application for Council approval within one month of the date of the orders, or if the six month period required to be extended to enable the application to be finalised. Orders were made on this basis because a significant majority of lot owners supported the respondents operation and there was a reasonable prospect that an application to the City Council for approval of the change in use would be approved.
The application
5 In these reasons all of the applicants will be referred to jointly as such, unless the context requires them to be named individually, but the respondents will be referred to as either Mr Green, Mr Ardley or Bonnie-Vale, unless in context it is more convenient to refer to them jointly as the respondents.
6 On 8 August 2005, the applicants lodged an application seeking substantive and interim relief in effect restraining the respondents from storing goods in lot 26 on strata plan 36239 and from operating or managing any of the lots in the strata plan under the name "Mandurah Motel and Apartments" together with other incidental orders.
7 The interim orders were not pursued following the decision of the Tribunal in a related matter which resulted in Bonnie-Vale obtaining interim orders against Walter Holdings Pty Ltd and J & L Property Group Pty Ltd and their officers, servants or agents ensuring access to services: see Bonnie-Vale Pty Ltd and Walter Holdings Pty Ltd & Anor [2005] WASAT 267.
8 In the applicants' Statement of Issues, Facts and Contentions the orders sought were amended in form although they remained within the parameters of the orders originally sought. The respondents raised no objection to the amended form of orders and accordingly it is the relief set out in the applicants' Statement of Issues, Facts and Contentions which will fall to be considered by the Tribunal. The orders sought are as follows.
9 "Relief sought by applicants
1. Mr Green be restrained from:
1.1 carrying on the business of making available the Terminated Lots for accommodation;
1.2 storing any goods in Lot 26;
- 1.3 using Lot 26 as an office/reception; and
1.4 using Lot 26 or any other lot on the Strata Plan for any other purpose than for short term tourist accommodation.
- 2. Bonnie-Vale be restricted from:
2.1 carrying on the business of making available the Terminated Lots for accommodation;
2.2 storing any goods in Lot 26;
2.3 using Lot 26 as an office/reception; and
2.4 using Lot 26 or any other lot on the Strata Plan for any other purpose than for short term tourist accommodation.
3. Mr Ardley be restrained from permitting Lot 26 to be used:
3.1 to store any goods;
3.2 as an office/reception;
3.3 for any other purpose than for short term tourist accommodation."
10 Walter Holdings Pty Ltd is the registered proprietor of lot 20 on strata plan 36239. The strata scheme is known as the Mandurah Gates Resort and the strata company is called the Owners of Mandurah Gates Resort Strata Plan 36239. The strata plan was first registered on or about 30 April 1999 and then comprised 19 lots. A plan of re-subdivision of lot 1 and common property on strata plan 36239 was registered on 7 September 2001 in terms of which lot 1 was re-subdivided into 37 separate lots being lots no 20 – 57. At or about the time of re-subdivision, the purchasers of the lots entered into a lease-back arrangement with a company which operated the parcel as a tourist resort. As a result of dissatisfaction with that arrangement the owners of lots 2 – 6, 8 – 9, 12, 15 – 17, 19, 21 – 25, 28 – 30, 32 – 36, 38 – 48, 50 – 54 and 56, that is the owners of 42 lots out of 56 lots, terminated the leases.
(Page 7)
11 With effect from 18 February 2005, J & L Property Group Pty Ltd has been the lessee of lot 20 and in terms of lease agreements with the remaining lot owners continues the operation of the Mandurah Gates Resort business.
12 Mr Mitra and Mr Jacobs are directors of J & L Property Group Pty Ltd and are also the registered proprietors of lot 57 on the strata plan.
13 It is common cause that since about 18 April 2005, Bonnie-Vale has had exclusive possession of or has been in occupation of lot 26. At all material times Mr Green has been and is a director of Bonnie-Vale and manages the business conducted by it under the style Mandurah Motel and Apartments. The 42 lot owners have entered into leases with Bonnie-Vale so that these lots are now made available for short stay accommodation through Bonnie-Vale. For that purpose Bonnie-Vale has leased from Mr Ardley lot 26 and uses that lot for storage and as an office/reception for the conduct of its business.
14 The applicants contend, as more fully set out below, that the operations undertaken by Bonnie-Vale constitute a breach of restrictions on the use of the parcel duly registered pursuant to s 6 of the Strata Titles Act 1985 (WA) (the ST Act) and further that the use of lot 26 constitutes a breach of the applicable town planning scheme and therefore the by-laws of the strata company. Consequently they seek the orders as set out above.
15 There are very few facts in dispute between the parties, and to a large extent where there are disputes of facts they relate to incidental detail such that it is not necessary to resolve such disputes in order to determine the matter.
16 The issues identified by the parties in their respective Statements of Issues, Facts and Contentions are subsumed by the following issues which must be considered in order to determine the application.
The issues for determination
1. Does the use of lot 26 for storage and as an office/reception for the conduct of Bonnie-Vale's business as Mandurah Motel and Apartments constitute a breach of the restrictions on use imposed under the strata plan?
2. Does such use of lot 26 constitute a change of use for which the approval of the Council of the City of Mandurah is required?
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- 3. If so, does the use of lot 26 without such approval constitute a breach of the by-laws?
4. If a breach of the restrictive use condition or by-law is established, what is the appropriate relief to be granted?
17 It is necessary to set out the factual background and regulatory framework against which the consideration of the above issues must be made.
The strata plan and by-laws
18 The strata plan registered on 9 August 1999 was endorsed with the following:
"USE RESTRICTION
Pursuant to s 6(1) of the Strata Titles Act the whole of this
parcel of land is restricted in use to a tourist resort.
The registered proprietors of the lots 2 – 19 are restricted in use and occupancy of their lots by the terms and conditions of their lease-back arrangements."
19 The plan of re-subdivision registered on 20 September 2001 contains the following endorsement.
"USE RESTRICTION
Pursuant to s 6(1) of the Strata Titles Act the whole of this
parcel of land is restricted in use to a tourist resort.
The registered proprietors of the lots 21 – 56 are restricted in use and occupancy of their lots by the terms and conditions of their lease-back arrangements.
Pursuant to s 6(1) of the Strata Titles Act the use of lot 57 is restricted to the Managers Accommodation."
20 A notification of change of by-law H167356 was registered on 14 July 1999. The notification reflects that both the standard Sch 1 and Sch 2 by-laws were repealed and replaced. The applicants relied upon the following provisions of the changed by-laws:
"Schedule 1 by-laws
1. THEME OF DEVELOPMENT
- It is intended that the strata scheme operates as a tourist resort and function centre. The swimming pools, the communal lawns and gardens provide amenities for the use of the occupiers or other residents in relaxed landscaped surroundings. It is the responsibility of the strata company and the managing agent to use their best endeavours to ensure that the purpose and the appearance of the scheme is maintained.
- Schedule 2 by-laws
1. BEHAVIOUR OF PROPRIETORS, OCCUPIERS AND TENANTS WITHIN THE SCHEME.
Proprietors, occupiers or tenants of a lot shall not: -
(a) use any lot or part of the common property for any purpose which may be a breach of any strata company by-law applying to this scheme, any local government regulation or by-law, or any other government and regulating authority law."
"15. STRATA COMPANY MANAGEMENT
The strata company may employ the services of a managing agent for the purposes of administering the affairs of the strata company in respect to the responsibilities and obligations of the strata company as contained in sections 35 and 38(1) of the Act and also to perform those duties of the strata company as contained in 36(2) of the Act together with exercising the powers of the strata company in accordance with section 37 of the Act and schedule 1 by-law 7(2)(b) as may be required from time to time, and the strata company will enter into an agreement with the managing agent for these and other management purposes."
22 Included in the applicants' bundle of documents is a copy of part of the City of Mandurah Town Planning Scheme No 3 (the Scheme). It is not a complete copy, but no objection was taken to that and there was no
(Page 10)
- suggestion that the omitted portions would have any relevance to the determination of the matters in issue.
23 The Scheme was adopted by resolution of council on 12 October 1993. The applicants' counsel submitted that in accordance with s 73 of the Town Planning and Development Act 1928 (WA), the Scheme had been approved by the Minister and published in the Government Gazette, that it was in full force and effect and applied to the land comprised in the strata plan. No issue was taken with this submission. Counsel further informed the Tribunal that it was agreed that the land comprised in the strata plan is located within the tourist zone referred to in cl 3.1.1 of the Scheme.
24 Clause 3.1.1 provides for the land the subject of the Scheme to be classified into zones as set out and those zones include a tourist zone. Clause 3.2 of the Scheme provides that the zoning tables and the scheme indicate, subject to the provision of the Scheme, the permissible uses in the various zones. Clause 3.2.1 explains the symbols used in the zoning table and relevantly "P" means that the use is consistent with the objectives of the Scheme and may be developed after council has granted planning approval. "IP" means a use that is not permitted unless such use is incidental to the predominant use as decided and approved by council.
25 Clause 4.10 deals with the tourist zone and by cl 4.10.2 the permissible uses in the tourist zone and the relevant development and subdivision standards are specified in zoning table 10.
26 Zoning table 10 reflects that motel is a "permitted use" while an office is not permitted unless such use is incidental to the predominant use as decided and approved by council ("IP").
27 Clause 7.1.1 provides:
"In order to give full effect to the provisions and objectives of the Scheme, all development, including a change in the use of land, accept as otherwise provided, requires the prior approval of the council in each case. Accordingly, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtaining the planning approval of the Council pursuant to the provisions of this Part."
(Page 11)
28 Clause 7.1.2 sets out the circumstances in which it is otherwise provided that planning approval is not required. None of the circumstances there set out have any relevance to the application.
29 Appendix 1 to the Scheme sets out a number of definitions. The following are relevant.
"act: means the Town Planning and Development Act 1928 (as amended).
development: shall have the same meaning given to it in and for the purposes of the Act…
land: shall have the same meaning given to the term in and for the purposes of the Act.
motel: means any land or buildings used or intended to be used to accommodate patrons in a manner similar to a hotel but in which a special provision is made for the accommodation of patrons with motor vehicles and to which a licence under the Liquor Licensing Act 1988 has been granted.
office: means a building or part of a building used for the conduct of administration, the practise or a profession, the carrying on of agencies, a post office, a bank, building society, insurance office, estate agency, typist and secretarial services, or services of a similar nature, and where not conducted on the site thereof, the administration of the accounting in connection with a commercial or industrial undertaking."
30 It was not disputed that development approval was obtained under the classification "motel". The actual approval was not tendered in evidence but no objection was taken to the applicants' counsel's submissions that the drawings reflected at page 141 of the applicants' bundle of documents reflected the floor plan of the proposed motel development. The plan referred to is a copy of the actual plan submitted to the liquor licensing authorities as part of a liquor licence application. The only qualification made on behalf of the respondents is that the building plans held by the City of Mandurah do not show lot 25 or lot 26. By comparing the strata plan with the above plan it is possible to identify that lot 25 and lot 26 are the areas of the above plan shown as disabled units.
(Page 12)
31 In the circumstances in which the facts have been agreed between the parties, subject only to minor qualifications on matters which I have already indicated are incidental, and with the case having been conducted on this basis, I consider that it is appropriate to infer that the development approval was consistent with the above plan (ABOD141). I consider this is appropriate for the additional reason that all of the parties submissions, in one form or another, referred to the above plan. Counsel for Mr Green and Bonnie-Vale, Mr Hardy, in particular referred to the office area shown on the above plan to support an argument that an office is incidental to the predominant use as a motel and that the Council would have formed a view to that effect, and all of Mr Hardy's submissions were adopted by counsel for Mr Ardley. But for the case having been conducted in this way it would have been very difficult for the Tribunal to determine the town planning issues, as referred to further below.
32 As stated above the town planning scheme definitions of "development" and "land" refer back to the Town Planning and Development Act 1928. That Act defines those terms, to the extent relevant, as follows:
"Development" is the development or use of any land ...
"Land" includes land, tenements and hereditaments and any interest therein, and also houses, buildings, and other works and structures.
The use of the parcel and lot 26
33 I refer to the introduction above. It is not necessary to repeat what is there set out in relation to the use of the parcel. It is, however, necessary to give some further detail because it is part of the applicants' case that Mr Green and Bonnie-Vale have no legal right to use some of the facilities which it is submitted affects their ability to operate within the restricted use as a tourist resort. Further reference is made to this below.
34 There are a number of facilities which are provided upon or which constitute common property, namely garden areas around and in the centre of the buildings, a swimming pool, a tennis court, mini golf course and hallways and stairs providing access to the accommodation units. There are however, other facilities which are contained within lot 20, namely the restaurant, bar, cafe, games room, cabana, fixed barbecues and the terrace area. Since about 1 October 2005 occupiers of the lots controlled by Bonnie-Vale have not been permitted access to the cabana, restaurant, bar and barbecue areas.
(Page 13)
35 In so far as lot 26 is concerned, while there is some disagreement as to what fixtures/facilities were originally included in the lot, it is common cause that it is no longer available for short-term accommodation and that it has been used by Bonnie-Vale and Mr Green for storage and as an office/reception area for the conduct of Bonnie-Vale's business.
36 Save to the extent of any minor qualification referred to above, none of the facts outlined are in dispute although the parties contentions based on those facts differ markedly. To avoid prolixity I shall not attempt to summarise the parties submissions, all of which, both written and oral, have been taken into account, but I shall refer to the submissions to the extent necessary in considering the issues identified for determination.
Does the use of lot 26 and the conduct of Bonnie-Vale's business as Mandurah Motel and Apartments constitute a breach of the restrictions on use imposed under the strata plan?
37 Section 6(1) of the ST Act provides that a strata/survey - strata plan lodged for registration under the Act may, by an appropriate endorsement that delineates the area or space affected and refers to that section, restrict the use to which the parcel or part of the parcel may be put. By subsection (2) where a plan restricts the use to which the parcel or part of the parcel may be put, a proprietor, occupier or other resident of any lot that is part of the parcel shall not use, or permit to be used, the parcel or part of the parcel in any manner that contravenes the restriction.
38 The endorsements to which reference has been made above reflects that the whole of the parcel of land is restricted in use to a tourist resort. The restriction also refers to the proprietors being restricted to use and occupancy in accordance with their lease-back agreements. Although the grounds stated in the application referred to this last mentioned restriction, the applicants placed no reliance upon it in their Statement of Issues Facts and Contentions and that aspect of the matter was not pursued.
39 The applicants press that the use of the indefinite article "a" tourist resort reflects that there can be only one resort, and that in effect, Bonnie-Vale and Mr Green, and those owners of units aligned with them are operating a second business.
40 The argument is that as some facilities are being used without any legal entitlement to do so, namely the café, games room and cabana while the bar, restaurant and barbecue area are not available to Bonnie-Vale's guests, Bonnie-Vale is not providing the full facilities required of a tourist resort. Further that Bonnie-Vale is only really entitled to offer short-term
(Page 14)
- accommodation provided that this is done as part of a business development which cannot properly be characterised as a tourist resort or part of a tourist resort. This is understood to be a reference to the ability to obtain approval under the category chalets, holiday flats, cabins which is a permitted use within the tourist zone.
41 What constitutes a tourist resort is not defined in the by-laws of the strata company. The applicants referred to Wasaga & Ors v Torres Shire Council & Anor [2003] QPELR 191 in which it was held, after considering various dictionary definitions, that to constitute a tourist resort it is necessary to provide a comprehensive range of facilities for accommodation, meals, entertainment and recreation so that tourists may visit that resort, stay for significant periods which might be for some days to weeks and be able to have their holidays without leaving the resort.
42 Counsel for Bonnie-Vale and Mr Green referred to MacKay Conservation Group Inc v Mackay City Council [2005] QPEC 94 in which consideration was also given as to what constituted a tourist resort. The decision reflects that while a "resort" is capable of easy definition, as being a place frequented for holidays or for a specified purpose or quality (seaside resort, health resort), what constituted a tourist resort gave rise to more difficulty. Reference was made to the definition of tourism used by the World Tourism Organisation being "the activities of persons travelling to and staying in places outside their usual environment, for not more than one consecutive year for leisure, business and any other purpose not related to the exercise of an activity remunerated from within the place visited."
43 In the context of considering resort living, the court held that there must be proximity to one or more features producing an environment with a holiday or work free atmosphere, whether it be natural such as water or a national park, or constructed, such as a golf course, marina, hotel which may be associated with restaurants, retailing attractive to tourists, a casino or theme park "it is those things that justify the use of the descriptor, resort...".
44 In circumstances in which the occupier of the lots managed by Bonnie-Vale have access to gardens, a swimming pool, a tennis court and a mini golf course, I consider that it remains open as a matter of ordinary grammatical meaning to describe the accommodation facility provided by Bonnie-Vale as a tourist resort.
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45 That leaves for consideration, whether Bonnie-Vale is entitled to operate what is said to be a second operation whereas the restriction by its terms, so it is submitted, permits only one tourist resort to be operated.
46 The respondents do not challenge that the language of the restriction refers to use in the singular to a tourist resort. But, it is submitted that while there is a more constrained access to the use of facilities which are controlled by the applicants, there is nothing in the way in which this has been constructed and the way in which the devolution of proprietorship into two separate businesses has robbed the entire development of its nature and status as a permitted use, in this context, as a tourist resort.
47 I accept these submissions and find that the change in the structure of proprietorship and management of the individual lots, or group of lots, does not result in a change in the use of the parcel as a tourist resort.
48 To the extent that the applicants relied upon Sch 1 by-law 1, set out above, I do not accept that it takes the applicants' argument any further. It does refer in a singular sense to the theme of the development but that is met by the Respondents' argument which I have accepted. The references to the strata company and the responsibility of a managing agent also takes it no further. The managing agent is the agent contemplated in by-law 15 to perform certain obligations of the Strata Company – which are quite distinct from those of the operator, or operators of a business or businesses within parcel.
49 It follows that on these findings I determine in relation to the first issue identified that the use of lot 26 and the conduct of Bonnie-Vale's business as Mandurah Motel and Apartments does not constitute a breach of the restriction on use imposed under the strata plan.
Does the use of lot 26 constitute a change of use for which the approval of the Council of the City of Mandurah is required?
50 As mentioned above, counsel for Mr Green and Bonnie-Vale referred to the series of plans at ABOD141 and following when submitting that the whole of the land, including the multiplicity of uses which are encompassed in that, received one approval. In referring to the above plan, counsel emphasised the different uses which are encompassed within lot 20 including a conference room, a cafe, a restaurant, a reception foyer and an office.
51 Counsel referred to the definition of motel which includes the requirement that a licence under the Liquor Licensing Act 1988 (WA) has
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- been granted and pointed out that the liquor licence attached to the whole of the property. Thus it was contended that the use made of the whole of the land therefore satisfies the definition of what is a motel and therefore falls within the scope of the permitted and approved use.
52 I accept that when development approval was sought, for reasons given above, the planning authorities would have taken into account the different uses to which areas of the building would be used. As previously noted, the terms of the approval and the actual plans approved have not been established, but it can be inferred that the Council would have taken into account the incidental use of an area of the building as an office. The use must have been disclosed to Council and a determination must have been made as to whether that use was incidental to the predominant use in order to meet the requirements of the Scheme. That approval would in turn have been on the basis of the submitted plans which would have shown what areas of the buildings were to be used for accommodation purposes.
53 While it has been pointed out by the respondents that lots 25 and 26 were not shown on the original plans but were dealt with by way of a subsequent amended plan, I do not consider that this is of significance. It must be inferred, for the reasons which I have already outlined above, that development approval was obtained for those amendments. Clause 7.1.1 makes plain that all development, including any change in the use of land requires the approval of Council. The case has been conducted by all parties on the assumption that there was no issue concerning the initial development approval or approvals. The definitions of development and land under the scheme and under the Town Planning and Development Act 1928 support the applicants' argument that a change in the use of the buildings requires planning approval. Counsel for Mr Green and Bonnie-Vale referred me to Lizzio v Ryde Municipal Council(1983) 48 ALR 11 and Re Minister for Planning; ex parte City of Canning (Supreme Court of Western Australia (Full Court)) 101 LGERA 284 in support of his submissions but I can find nothing therein which militates against the clear stipulation of cl 7.1.1 of the Town Planning Scheme requiring a change in use to be submitted to Council for approval.
54 Clause 3.2.1 demonstrates that when considering an application for planning approval where a use is intended, which is not a permitted use unless incidental to the predominant use, that the Council is to decide whether the use is incidental. So much was recognised by counsel in pointing to the various areas to be used for particular purposes as shown on the plan and in submitting that the Council would have considered
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- such uses as being incidental to the predominant use as a motel. If then, at a later date, there was a change in the use of a building, there seems to be no reason why Council would not wish to consider, in a situation as exists in this case, whether the degree of not permitted use remains at a degree which can be judged to be incidental.
55 I accordingly find that the use of lot 26 constitutes a change of use for which the approval of the Council of the City of Mandurah is required.
Does the change in use of lot 26 without planning approval constitute a breach of the strata by-laws?
56 The Schedule 2 By-law 1(a) is expressed in wide terms in prescribing that proprietors, occupiers or tenants of a lot shall not use any lot for any purpose which may be a breach of any local government regulation or by-law, or any other government and regulating authority law which in my view encompasses a breach of cl 7.1.1 of the Scheme which I find has occurred by reason of the change of the use of lot 26 without prior planning approval.
57 It follows that Bonnie-Vale is in breach of by-law 1(a): see Moss and the Owners of Bijou Marina Village-Strata Plan 36747 & Others [2005] WASAT 180 in which breach of a town planning scheme was also held to be in breach of a similarly worded by-law. While Mr Green is a person involved in that contravention, he is not a proprietor, occupier or tenant of the lot and is therefore not in breach. Any order requiring Bonnie-Vale to refrain from acting in breach of the by-law must, however, of necessity be expressed in terms to include its officers, servants or agents.
The appropriate relief
58 The correspondence reflects that Bonnie-Vale was involved in initially making an application for planning approval for a change of use in relation to lot 26 (ABOD 322). A letter from the City of Mandurah dated 12 May 2005 reflects that there was some difficulty in proceeding with the application without the strata company seal on the application. It is far from clear as to why that is a requirement of the Council given that the change of use relates to a lot in which the strata company has no interest. In any event, the letter from the City of Mandurah further reflects that the proposal may be satisfactory from a town planning perspective but there was a need to consider the strata by-laws and the management restrictions. This decision may be helpful in the Council reaching a view on those matters.
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59 A significant majority of lot owners have chosen to lease their lots to Bonnie-Vale rather than J & L Property Group Pty Ltd.
60 In these circumstances, while it has been found that Bonnie-Vale is in breach of the strata company by-laws it is necessary to fashion a remedy, consistent with the orders sought, but which does not go further than is necessary to achieve a just result. Any order having immediate effect is however likely to cause inconvenience while arrangements are put in place to provide similar services from outside the parcel, given that if planning approval is subsequently given, the existing arrangements are likely to be reinstated.
61 In the circumstances the Tribunal considers that an appropriate order should issue, but that it should take effect on a date six months from the date of publication of these reasons for decision. Liberty to apply will be granted to the parties so that consideration can be given to extending the date on which the order is to take effect if there is a delay in the finalisation of the application for planning approval, for which any of the Respondents are not responsible, or on the other hand to have the order take immediate effect should Bonnie-Vale and or Mr Ardley not have made the necessary application, without good reason, within one month of the date of publication of these reasons for decision.
Orders
62 For the above reasons, the Tribunal orders as follows:
1. Subject to further order:
1.1 Bonnie-Vale Pty Ltd, its officers, servants or agents are to refrain from:
1.1.1 storing any goods in lot 26 on strata plan 36239;
1.1.2 using the said lot 26 as an office/reception;
1.1.3 using the said lot 26 for any other purpose than for short term tourist accommodation.
1.2 Allen Ardley is to refrain from permitting the said lot 26 to be used:
1.2.1 to store any goods;
- 1.2.2 as an office/reception;
1.2.3 for any other purpose than for short term tourist accommodation.
- 2. Order 1 is to take effect on a date six months from the date of this order or from such earlier, or later date, as the Tribunal may direct on good cause.
3. The parties have liberty to apply.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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