MOORE and TOWN OF COTTESLOE
[2016] WASAT 58
•19 MAY 2016
MOORE and TOWN OF COTTESLOE [2016] WASAT 58
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 58 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:172/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS K WHITNEY (MEMBER) | 19/05/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Conditions of development approval varied | ||
| A | |||
| PDF Version |
| Parties: | ADRIAN MOORE TOWN OF COTTESLOE |
Catchwords: | Town planning Conditions of development approval Notification of conditions on title Circumstances in which notification on title is appropriate |
Legislation: | Local Government (Uniform Local Provisions) Regulations 1996, reg 13 Planning and Development Act 2005 (WA), s 165, s 238(4), s 252(1) Road Traffic Code 2000 (WA), reg 165, reg 166 State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 31, s 31(3), s 60(2) Town of Cottesloe Local Planning Scheme No. 3 Town of Cottesloe Parking and Parking Facilities Local Law (2009), cl 7.8, cl 7.10 Town Planning and Development Act 1928, s 12A Transfer of Land Act 1893 (WA), s 70A |
Case References: | Miragliotta and Town of Vincent [2008] WASAT 207 |
Orders | The Tribunal makes the following orders:,1. The application for review is allowed.,2. The decision of the respondent made on 22 June 2015 as varied on 2 November 2015 to grant conditional development approval for a proposed dwelling at No 28 Avonmore Terrace, Cottesloe (Lot 505) is varied by deleting condition (xv). |
Summary | The applicant sought review of a condition of development approval requiring registration of notification on title of a shared crossover.,The Tribunal determined that it was not reasonable, necessary or appropriate to impose the condition as the shared crossover was not atypical or unusual and was evident upon a visual inspection of the property. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MOORE and TOWN OF COTTESLOE [2016] WASAT 58 MEMBER : MS K WHITNEY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 MAY 2016 FILE NO/S : DR 172 of 2015 BETWEEN : ADRIAN MOORE
- Applicant
AND
TOWN OF COTTESLOE
Respondent
Catchwords:
Town planning Conditions of development approval Notification of conditions on title Circumstances in which notification on title is appropriate
Legislation:
Local Government (Uniform Local Provisions) Regulations 1996, reg 13
Planning and Development Act 2005 (WA), s 165, s 238(4), s 252(1)
Road Traffic Code 2000 (WA), reg 165, reg 166
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 31, s 31(3), s 60(2)
Town of Cottesloe Local Planning Scheme No. 3
Town of Cottesloe Parking and Parking Facilities Local Law (2009), cl 7.8, cl 7.10
Town Planning and Development Act 1928, s 12A
Transfer of Land Act 1893 (WA), s 70A
Result:
Conditions of development approval varied
Summary of Tribunal's decision:
The applicant sought review of a condition of development approval requiring registration of notification on title of a shared crossover.
The Tribunal determined that it was not reasonable, necessary or appropriate to impose the condition as the shared crossover was not atypical or unusual and was evident upon a visual inspection of the property.
Category: A
Representation:
Counsel:
Applicant : Ms D Morgan (Acting as Agent)
Respondent : Mr A Jackson (Acting as Agent)
Solicitors:
Applicant : Cardno (WA) Pty Ltd
Respondent : Town of Cottesloe
Case(s) referred to in decision(s):
Miragliotta and Town of Vincent [2008] WASAT 207
Introduction
1 On 26 May 2015, Mr Russell Stewart applied to the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of a deemed refusal by the Town of Cottesloe (Town or Council) of a development application at Lot 505 Avonmore Terrace, Cottesloe (review application).
Relevant facts
2 The following facts are agreed by the parties.
3 The subject property is situated at Lot 505 Avonmore Terrace, on the corner of Deane Street and Avonmore Terrace, Cottesloe (site or Lot 505). Under the Town of Cottesloe Local Planning Scheme No 3 (planning scheme), the site is zoned Residential R30. It has an area of 303m2. The site was sold on 16 October 2015 to Mr Adrian Moore (applicant).
4 On 8 August 2014, the Town received an application for planning approval for a twostorey dwelling on the site (development application). The site is one of six new lots located on the northeastern corner of Deane Street and Avonmore Terrace which were approved by the Western Australian Planning Commission on 8 January and 23 April 2014. Five of the six lots have planning approval for a twostorey dwelling and three of these are under construction.
5 On 22 June 2015, the Council approved the development application subject to conditions (conditional approval). The only condition under review in the review application is condition (xv):
A section 70A Notification shall be placed on the title of the new Lot 505 to advise any owner or purchaser that access may be required to be shared with the proposed rear lot (Lot 506), that no parking will be allowed on the crossover, and that future maintenance and replacement costs will need to be shared in the event that the proposed rear lot is developed. Details evidencing this shall be lodged with the application for a building permit, to the satisfaction of the Town.
6 The review application was the subject of Tribunal mediations on 30 September and 15 October 2015. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Council was invited to reconsider the conditional approval on or before 2 November 2015.
7 On 2 November 2015 the Council resolved to:
Note the Officer report on the SAT mediation of the review of the subject condition of approval for a two-storey dwelling at 28 (Lot 505) Avonmore Terrace and resolve to modify condition (xv) as follows, and that officers advise the SAT accordingly:
(xv) A Section 70A Notification shall be placed on the title of the new Lot 505 to advise any owner or purchaser that access may be required to be shared with the proposed rear lot (Lot 506), that no parking will be allowed on the crossover, and that future maintenance and replacement costs will need to be shared in the event that the proposed rear lot is developed. Details evidencing this shall be lodged prior to occupation of the development on Lot 505, to the satisfaction of the Town.
8 The Town attended a directions hearing before the Tribunal on 6 November 2015 where Deputy President Judge Parry ordered that the matter be determined entirely on the documents pursuant to s 60(2) of the SAT Act. The final submissions were lodged on 18 March 2016 and the Tribunal's decision was reserved.
Statutory framework
9 Section 252(1) of the PD Act provides as follows:
Subject to subsection (3), if
(a) under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b) a person has applied to the responsible authority for such a grant; and
(c) the responsible authority has
(i) refused the application; or
(ii) granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision.
10 In the present matter, the review application proceeded on the basis that the decision under review is the Council's decision as varied on 2 November 2015: s 31(3) of the SAT Act.
11 Section 27(1) of the SAT Act provides that the Tribunal's review of a reviewable decision is by way of a hearing de novo, and is not confined to the matters that were before the original decisionmaker but may involve consideration of new material, whether or not it existed at the time the original decision was made.
12 Section 27(2) of the SAT Act provides that the purpose of a review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review. The Tribunal's task is to make a fresh decision in place of the original decisionmaker, and s 29(1) of the SAT Act provides that the Tribunal, when dealing with a matter in the exercise of its review jurisdiction, has functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
13 Section 70A of the Transfer of Land Act 1893 (WA) (TL Act) provides relevantly as follows:
(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;
…
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 … may, on payment of a 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.
14 The Tribunal considered the circumstances in which notification on the title pursuant to s 70A of the TL Act may be reasonable or appropriate in Miragliotta and Town of Vincent [2008] WASAT 207 (Miragliotta) at [17] [31]:
[17] In Compliance Admin Services Pty Ltd v Town of Claremont[2004] WATPAT 198; (2004) 37 SR (WA) 28, the Town Planning Appeal Tribunal held at [34] [36] as follows:
Section 70A [of the TL Act] insofar as it deals with notification is concerned solely with that. It is not intended to create legal rights. It does not of itself effect planning approval. It does not change in any way, shape or form the statutory obligations imposed upon the Respondent in relation to its Scheme observance and enforcement.
Put shortly, the Appellant is necessarily limited to and bound by the terms of the present approval. Its successors in title are equally bound as a matter of law.
Notification on title cannot change that legal outcome.
[18] This aspect of the decision of the Town Planning Appeal Tribunal is clearly correct. In consequence, condition (i), as imposed by the Council, is misconceived. By its terms the condition seeks to impose legal obligations through notification on title under s 70A of the TL Act, whereas s 70A is concerned solely with notification of factors affecting the use or enjoyment of land, not the imposition of legal obligations. However, it appears that the intention, although not the expression, of condition (i) is to both impose legal obligations by way of conditions of development approval under TPS 1 and the TPD Act and to require notification of these conditions of development approval on title under s 70A of the TL Act.
[19] In Compliance Admin Services Pty Ltd v Town of Claremont at [42] the Town Planning Appeal Tribunal held that:
[a] condition [that] serves to do no more than recall on title that which has already been approved … cannot … be a proper basis upon which the specific powers of section 70A [of the TL Act] are to be utilised.
[20] In Antonas and Town of Vincent [2006] WASAT 303; (2006) 45 SR (WA) 327 at [39], the Tribunal held that this aspect of the decision in Compliance Admin Services Pty Ltd v Town of Claremont was:
clearly in error, because a condition of development approval which requires notification on title of the continuing effect of another condition can, in certain circumstances, have a proper planning purpose, be reasonably referable to the proposed development and be reasonable and appropriate.
[21] In Antonas and Town of Vincent at [40] the Tribunal described the circumstances in which a condition of development approval can properly require notification on title of other conditions of approval as follows:
In circumstances where a condition of development approval imposes a continuing obligation on the owner or occupier for the time being of the land, which affects the use or enjoyment of the land, and is unusual, it may be appropriate to impose a further condition requiring the proponent to provide written consent to the local government to the notification of the terms of the condition on the title under section 70A of the TL Act. (emphasis added)
[22] In that case, the Tribunal determined at [42] that:
[b]ecause a continuing obligation under a development approval, to retain and maintain the existing dwelling while the proposed dwelling remains on the site, affects the use and enjoyment of the land comprising the existing dwelling, and is unusual, it is appropriate to impose a condition facilitating notification of the condition on title.
[23] In Antonas and Town of Vincent the Tribunal imposed the unusual condition that the existing dwelling must be retained and maintained while the proposed dwelling remains, because it exercised a discretion under cl 20(2) of TPS 1 to grant a 50% increase in the permitted dwelling density that is available only if 'the proposed development conserves or enhances an existing dwelling … worthy of retention'.
[24] However, the planning conditions contemplated by condition (i) imposed by the Council in this case regulating the approved office use involve typical, and certainly not unusual, continuing obligations under a development approval for a commercial development. While a condition of development approval imposing a continuing obligation on the owner or occupier for the time being of land is a 'factor affecting the use or enjoyment of the land' for the purposes of s 70A of the TL Act, to require typical or usual conditions of development approval to be notified on title would impose a significant and unnecessary burden on the carrying out of development in Western Australia and would be contrary to the purpose of the PD Act to 'provide for an efficient and effective land use planning system in the State' (s 3(1)(b)).
[25] Furthermore, if typical or usual conditions of development approval were required to be notified on title, and if a use were regulated by a development approval granted before the introduction of s 70A of the TL Act, or if a planning authority failed to impose a condition requiring notification in a particular case, proprietors or prospective proprietors of land may be misled into thinking that the absence of notification of conditions on title means that there are no planning conditions regulating use of the land.
[26] The conditions contemplated by condition (i) imposed by the Council, if expressly imposed as conditions of development approval, would run with the land and bind future owners and occupiers. The conditions are enforceable under the provisions of TPS 1 and the PD Act.
[27] It is therefore not reasonable or appropriate to impose a further condition requiring notification of the contemplated conditions on title under s 70A of the TL Act.
[28] There is nothing unusual in the particular circumstances of this case that might, as Cr Maier apprehends, make future purchasers of the site mistakenly believe that further intensification of the approved development can take place without further development approval.
[29] The examples of conditions requiring notifications on title 'relating to the enjoyment of the property being affected by noise, traffic and car parking of nearby commercial or nonresidential activities' referred to by Cr Maier, are distinguishable because they involve notification of potential external impacts of commercial or nonresidential activities which may affect residential amenity, rather than notification of a condition of development approval regulating use of the site itself.
[30] The Tribunal does not consider that requiring notification on title relating to 'the issue of residential or visitor parking permits' is reasonable or appropriate. Such factors affecting use or enjoyment of land are not unusual and are matters of policy. Rather, in determining whether to grant development approval, the Council must be satisfied that a proposed development provides adequate car parking to meet the demand generated by the development and may, where appropriate, impose a condition on the approval that residents, employees or visitors to the development must park their cars in the onsite bays.
[31] In relation to Mr Bothwell's contentions, there is no doubt about the proposed floor plan, because it is clearly shown on the approved plans. The fact that the site may be subdivided in the future is not, in itself, an unusual factor warranting the imposition of a notification on title. The conditions will continue to bind the owners and occupiers of the subdivided lot where relevant. The other points raised by Mr Bothwell are appropriately the subject of conditions of development approval to regulate the approved development, not properly the subject of a notification on title.
Issue
15 Whether the Town's decision to issue planning approval subject to condition (xv) as varied on 2 November 2015 is the correct and preferable decision: s 27(2) of the SAT Act.
Parties' contentions
16 The applicant opposes condition (xv) and maintains that the correct and preferable decision is that condition (xv) be removed. The applicant contends that a notification pursuant to s 70A of the TL Act is unnecessary, inconsistent with normal practice, and will unfairly burden his property compared with other properties for the following reasons:
• Parking on a crossover and obstructing a footpath are already prohibited by clauses 7.8 and 7.10 of the Town of CottesloeParking and Parking Facilities Local Law (2009) (Local Law) as well as reg 165 and reg 166 of the Road Traffic Code 2000 (WA). The requirement not to obstruct access to a driveway is not unusual and is expected to be understood by all drivers. It is therefore unnecessary to place a notification to this effect on the title.
• Under reg 13 of the Local Government (Uniform Local Provisions) Regulations1996 (LG Regulations), the Town may require the owner of land to construct or repair a crossover giving access to their land. It is therefore unnecessary to place a notification relating to maintenance of the crossover on the title.
• The Town has already constructed the crossover, which is visually prominent and is obviously for the purpose of serving both Lots 505 and 506. Furthermore, shared crossovers are not unusual and are evident upon inspection of the site. It is unnecessary to place a notification on the title to the effect that the crossover may be required to be shared.
• The Tribunal may be guided by the principles set out at 4(iii) and 4(v) in the Western Australia Planning Commission's Planning Bulletin No 3 (June 1995) as to what justifies a section 70A notification (notwithstanding Planning Bulletin No 3 was intended to deal with subdivision applications and refers to former s 12A of the Town Planning and Development Act 1928 (replaced by s 165 of the PD Act)):
Relevancy
The memorial must relate to the purposes referred to in section 12A, i.e. a hazard or other factor which would seriously affect the use or enjoyment of the land. Other land use matters such as development requirements or constraints, which are found in town planning schemes and other statutory documents, are not to be the subject of memorials.
- …
Necessity
A memorial should only be used where the prospective owner would not, under normal circumstances, otherwise be aware of the hazard or other factor. The situations referred to above - aircraft noise, unexploded ordnance, insects - would not necessarily be obvious on inspection of the land and a memorial would, therefore, be appropriate.
• A section 70A notification is neither necessary nor relevant in the present case because the 'hazard or other factor' in this case is already addressed in other statutory documents and it is evident upon inspection of the land. Furthermore, there is nothing unusual about the proposed development that warrants notification on the title. The condition does not serve a meaningful planning purpose and is unfair.
17 The Town contends that a section 70A notification is necessary by reason of the unusual requirement for the approved vehicle access to the site to be shared with the owners/occupiers of Lot 506, the adjoining eastern lot, which is currently vacant. Condition 5 of the subdivision approval dated 23 April 2014 required the applicant to make 'suitable arrangements' with the local government for the provision of a vehicular crossover to service the lot shown on the approved plan of subdivision. The Town approved and constructed the crossover to both proposed Lots 505 and 506 because steep topography in Deane Street prevented suitable alternative direct vehicular access to Lot 506. The Town contends that a section 70A notification is necessary to ensure that the owner or prospective owners of Lot 505 are aware of this shared vehicle access arrangement.
Whether the disputed condition should be imposed
18 In the present case, the Town has imposed a condition on development of Lot 505 which requires that prior to occupation of the development on Lot 505, a section 70A notification be placed on the title of Lot 505 to the effect that in the event that the proposed rear lot (Lot 506) is developed:
• the vehicle crossing which provides access from the public thoroughfare to Lot 505 may be shared with Lot 506;
• no parking will be allowed on the vehicle crossing which provides access from the public thoroughfare to Lot 505; and
• replacement costs in respect of the vehicle crossing which provides access from the public thoroughfare to Lot 505 may need to be shared with the owner of Lot 506.
- Section 70A of the TL Act permits such a notification on a title only where the local government 'considers it desirable that proprietors and prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land' (emphasis added).
19 In the present matter, 'the land or part of the land' in question is the land within the boundaries of Lot 505.
20 The 'factor affecting the use and enjoyment' of Lot 505 of the land is that:
• the crossover for Lot 505 may be shared with Lot 506;
• no parking will be permitted on the crossover; and
• replacement costs for the crossover may be shared with Lot 506.
21 In Miragliotta, the Tribunal confirmed that it will only be appropriate to impose a condition of development approval requiring the proponent to provide written consent to the local government of the notification of matters on title under s 70A of the TL Act if the factors affecting the use and enjoyment of the land are atypical or unusual, and are not evident to future purchasers of the site. In Miragliotta, the Tribunal did not consider that requiring notification on title relating to 'the issue of residential or visitor parking permits' was reasonable or appropriate, noting that '[s]uch factors affecting use or enjoyment of land are not unusual and are matters of policy'.
22 In the present matter, the Tribunal is satisfied that it would be evident to the prospective proprietors of Lot 505, upon a visual inspection of the location and perusal of the title documents, that:
• the vehicle crossing which connects Lots 505 and 506 to Deane Street is constructed outside the boundaries of either lot, and does not form part of either lot;
• apart from the vehicle crossing which connects Lots 505 and 506 to Deane Street, neither lot has any vehicular access to the street; and
• the eastern end of the vehicle crossing which connects Lots 505 and 506 to Deane Street narrows and joins to the existing concrete footpath on the northern side of Deane Street, creating a continuous path for pedestrian traffic from Deane Street to the footpath.
- From this information, it is reasonable to expect that prospective proprietors of Lot 505 would be aware that the crossover must be shared between Lots 505 and 506 (and with pedestrian traffic as well). Whilst this particular configuration is clearly unique to the topography of the land, there is nothing unusual about shared crossovers, particularly where large blocks have been subdivided. For these reasons, the Tribunal is not satisfied that a section 70A notification to the proprietor of Lot 505 'that access may be required to be shared with the proposed rear lot' (Lot 506) is necessary, reasonable, or appropriate in all the circumstances.
23 Furthermore, as noted by the applicant, stopping and/or parking vehicles on footpaths, nature strips/verges, and across driveways are matters which fall within the Road Traffic Code 2000 (WA), the Local Law and the Town's Residential Parking Policy. The Tribunal is satisfied that it is reasonable to expect that prospective proprietors of Lot 505 would be aware that parking restrictions may apply in respect of land which falls outside the boundaries of the lot, whether that be a crossover, a verge, or the street. Such restrictions will vary from council to council, and there is nothing unusual about this. For these reasons, the Tribunal is not satisfied that a section 70A notification to the effect that no parking will be allowed on the crossover is necessary, reasonable, or appropriate in all the circumstances.
24 Likewise, as noted by the applicant, the obligation of an owner or an occupier of private land to construct or repair a vehicle crossing from a public thoroughfare to their land is provided for by reg 13 of the LG Regulations. There is nothing unusual about this obligation, which requires notification on the title as to its existence, or that, in circumstances where the vehicle crossing is shared, contributions by Lots 505 and 506 might be shared. For these reasons, the Tribunal is not satisfied that a section 70A notification to the effect that 'future maintenance and replacement costs will need to be shared' is necessary, reasonable, or appropriate in all the circumstances.
Conclusion
25 The Tribunal has previously determined that it will only be appropriate to impose a condition of development approval requiring the proponent to provide written consent to the local government of the notification of matters on title under s 70A of the TL Act if such matters impose a continuing obligation which affects the use or enjoyment of the land and which is unusual. The section 70A notification sought to be imposed by the Town in the present case concerns matters which are evident and not unusual. It is therefore not reasonable or appropriate to impose condition (xv).
Orders
The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 22 June 2015 as varied on 2 November 2015 to grant conditional development approval for a proposed dwelling at No 28 Avonmore Terrace, Cottesloe (Lot 505) is varied by deleting condition (xv).
- I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS K WHITNEY, MEMBER
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