O'Brien and City Of Cockburn

[2012] WASAT 113

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   O'BRIEN and CITY OF COCKBURN [2012] WASAT 113

MEMBER:   JUDGE T SHARP (DEPUTY PRESIDENT)

MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD:   3 APRIL 2012

WRITTEN SUBMISSIONS FILED ON 14 MAY 2012 AND 31 MAY 2012

DELIVERED          :   11 JUNE 2012

FILE NO/S:   DR 423 of 2011

BETWEEN:   ROBYN JOY O'BRIEN

MURRAY PHILLIP O'BRIEN
Applicants

AND

CITY OF COCKBURN
Respondent

Catchwords:

Town planning ­ Compensation for injurious affection where land is reserved for a public purpose ­ Whether an odour pollution buffer zone is a reservation of land ­ Whether a planning scheme prohibits a non­conforming use of land ­ Proper construction of s 174 Planning and Development Act 2005 (WA)

Legislation:

City of Cockburn Town Planning Scheme No 3, cl 6.2.2.1, cl 6.2.6, cl 6.2.6(e)
Planning and Development Act 2005 (WA), s 112, s 173, s 174, s 176, s 177(1)(b), s 186, Pt II

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicants:     Self-represented

Respondent:     Mr D McLeod

Solicitors:

Applicants:     N/A

Respondent:     McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

City of Canning and Avon Capital Estates (Australia) Ltd [2008] WASAT 46

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211

O'Brien and City of Cockburn [2010] WASAT 101

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicants, Mr and Mrs O'Brien, applied to the Tribunal to make a determination that their property in Munster, within the City of Cockburn, had been injuriously affected by the imposition through the City of Cockburn's planning scheme of an odour pollution buffer zone around the Woodman Point Waste Water Treatment Plant.  The applicants' property is within the buffer zone as it is presently imposed.

2. The application was made under s 176(1) of the Planning and Development Act 2005 (WA), which gives the Tribunal power upon application to determine 'any question as to whether land is injuriously affected'.

3. The Tribunal considered the matter and concluded that the applicants' property was not injuriously affected for the purposes of Part 11 of the Planning and Development Act 2005 by the making of that planning scheme.  The Tribunal found that the land has not been reserved under the planning scheme for a public purpose, the scheme does not restrict development to a public purpose and the applicants' present use of the land is not a non­conforming use.

4. The Tribunal therefore dismissed the applicants' application.

Introduction

1. This is an application under s 176(1) of the Planning and Development Act 2005 (WA) (Planning Act) for a determination by the Tribunal as to whether the applicants' land is injuriously affected by the making or amendment of the City of Cockburn's local planning scheme and, if so, whether the applicants are entitled to obtain compensation from the responsible authority, the respondent.

Facts

1. The applicants are the registered proprietors of Lot 5 on Diagram 22961 being No 153 Fawcett Road, Munster, which is a residential property on the corner of Fawcett Road and Albion Avenue within the City of Cockburn (Lot 5).  Lot 5 is situated at the eastern margin of Lake Coogee.

2. Lot 5 is occupied by a single dwelling on one part of the property and by self­contained living accommodation on another part.  The latter is described as ancillary accommodation and in accordance with development approval conditions, is limited to occupancy by a member of the family of the occupier of the main dwelling.

3. The Woodman Point Waste Water Treatment Plant (WWTP) is situated approximately 500 metres from Lot 5 on land on the western side of Lake Coogee.  The plant is responsible for processing waste water generated in the southern portion of the Perth metropolitan area.

4. In September 2009, the respondent refused to advertise a proposed local structure plan intended to coordinate subdivision and development of Lot 5.  The applicants applied to the Tribunal for a review of that decision.  On 12 July 2010 (see O'Brien and City of Cockburn [2010] WASAT 101) (O'Brien) the Tribunal dismissed that application on the basis, in essence, that the proposal would be contrary to the interest of orderly and proper planning of the area.

Planning background

1. In O'Brien, the Tribunal set out the planning background to this matter and for convenience it is repeated here.

2. Under the Metropolitan Region Scheme (MRS), Lot 5 is situated within an area zoned 'Urban Deferred'.

3. Lot 5 is zoned 'Development' under the provisions of the City of Cockburn Town Planning Scheme No 3 (TPS 3).

4. Lot 5 is identified as being located within Development Area DA5 ­ Munster (DA5) under Sch 11 of TPS 3.

5. Clause 6.2.2.1 of TPS 3 identifies that the purposes of Development Areas are to:

   a)identify areas requiring comprehensive planning; and

   b)coordinate subdivision and development in areas requiring comprehensive planning.

6. Particular provisions identified in TPS 3 relating to DA5 are recited as follows:

   1.An approved Structure Plan together with all approved amendments shall apply to the land in order to guide subdivision and development.

   2.To provide for residential development except within the buffers to the Woodman Point WWTP, Munster Pump Station and Cockburn Cement.

   3.The local government will not recommend subdivision approval or approve land use and development for residential purposes contrary to Western Australian Planning Commission and Environmental Protection Authority Policy on land within the Cockburn Cement buffer zone.

7. Clause 6.2.6 of TPS 3 describes the detail requirements of any proposed structure plan.  Clause 6.2.6(e) specifies that a local structure plan should incorporate a map showing proposals for:

   (i)neighbourhoods around neighbourhoods and town centres;

   (ii)existing and proposed commercial centres;

   (iii)natural features to be retained;

   (iv)street block layouts;

   (v)the street network including street types;

   (vi)transportation corridors, public transport network and cycle and pedestrian networks;

   (vii)land uses including residential densities and estimates of population;

   (viii)schools and community facilities;

   (ix)public parklands; and

   (x)urban water management areas.

8. The City of Cockburn prepared a Local Planning Strategy (LPS) in 1999 designed to support and be read in conjunction with TPS 3.

9. The LPS identifies that the Woodman Point WWTP has a substantial odour buffer which represents a constraint to residential development in the Munster locality (see cl 4.11.1, 'Sewerage').

10. The Development Constraints Map of the LPS (Figure 18) illustrates the extent of the WWTP odour pollution buffer and identifies that Lot 5 is within that buffer area.

The application

1. The applicants' application dated 30 November 2011 seeks the following order:

   That Lot 153 Fawcett Road, Munster is injuriously affected by the provisions of the City of Cockburn Town Planning Scheme No 3 and the related Local Planning Scheme applying to the subject land.

2. The grounds for seeking that order are set out in the application as follows:

   1.SAT has ruled that the odour buffer depicted on Figure 18 of the 1999 Local Planning Strategy is a 'prescribed buffer' for the purposes of TPS 3;

   2.The odour buffer is a buffer preventing the development of the land in the manner that would normally occur without the buffer;

   3.The odour buffer has been imposed for a 'public purpose' relating to protection of the Woodman Point Waste Water Treatment Plant; and therefore

   4.The odour buffer and associated controls under TPS 3 is tantamount to a reservation of the land to prevent further development to the advantage of the Water Corporation and the significant disadvantage and cost of the affected landowners.

The relevant legislation

1. Part 11 (which comprises s 171 to s 197 inclusive) of the Planning Act contains the provisions which confer the right to compensation for injurious affection.

2. Section 173 of the Planning Act provides as follows:

   Injurious affection, compensation for

   (1)Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.

   (2)Despite subsection (1) a person is not entitled to obtain compensation under this section on account of any building erected, or any contract made, or other thing done with respect to land included in a planning scheme after the date of the approval of a planning scheme or amendment, or after such other date as the Minister may fix for the purpose, being not earlier than the date of the approval of the scheme or amendment.

   (3)A responsible authority may make agreements with owners for the development of their land during the time that the planning scheme or amendment is being prepared.

3. Section 174 of the Planning Act then provides as follows:

   When land is injuriously affected

   (1)Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if ­

   (a)that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose; or

   (b)the scheme permits development on that land for no purpose other than a public purpose; or

   (c)the scheme prohibits wholly or partially ­

   (i)the continuance of any non­conforming use of that land; or

   (ii)the erection, alteration or extension on the land of any building in connection with or in furtherance of, any non­conforming use of the land, which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the local government within whose district the land is situated.

   (2)Despite subsection (1)(c)(ii), a planning scheme which prescribes any requirement to be complied with in respect of a class or kind of building is not to be taken to have the effect of so prohibiting the erection, alteration or extension of a building of that class or kind in connection with, or in furtherance of that class or kind in connection with, or in furtherance of, non­conforming use.

   (3)Where a planning scheme wholly or partially prohibits the continuance of any non­conforming use of any land or the erection, alteration or extension of any building in connection with or in furtherance of a non­conforming use of any land, no compensation for injurious affection is payable in respect of any part of the land which immediately prior to the coming into operation of the scheme or amendment does not comprise ­

   (a)the lot or lots on which the non­conforming use is in fact being carried on; or

   (b)if the prohibition relates to a building or buildings standing on one lot, the lot on which the building stands or the buildings stand; or

   (c)if the prohibition relates to a building or buildings standing on more than one lot, the land on which the building stands or the buildings stand and such land, which is adjacent to the building or buildings, and not being used for any other purpose authorised by the scheme, as is reasonably required for the purpose for which the building or buildings is or are being used.

   (4)If any question arises under subsection (3) as to whether at any particular date, any land ­

   (a)does or does not comprise the lot or lots on which a non­conforming use is being carried on; or

   (b)is or is not being used for any purpose authorised by a scheme; or

   (c)is or is not reasonably required for the purpose for which any building is being used,

   the claimant or responsible authority may apply to the State Administrative Tribunal for determination of that question.

4. Section 176(1) of the Planning Act provides that a claimant or responsible authority may apply to the Tribunal for determination of any question as to whether land is injuriously affected.

5. Section 177(1)(b) of the Planning Act provides that no compensation is payable by the responsible authority for injurious affection to land alleged to be due until the responsible authority refuses an application made under the planning scheme for approval of development on the land, or grants approval of development on the land subject to conditions that are unacceptable to the applicant.

The issues raised by the applicants

1. The applicants open their statement of issues and contentions by saying that they 'rely on section 174(1)(a) and (c) and section 174(3) but not be limited to them'.

2. The applicants then go on to state their issues as follows:

   1)Request the Tribunal to determine that [Lot 5] is injuriously affected by the provisions of [TPS 3] and the related [LPS] applying to [Lot 5].

   2)What constitutes injurious affection in planning and environment law?

   3)Does the [WWTP odour pollution buffer] constitute injurious affection on [Lot 5]?

   4)What agency or authority placed a prescribed and statutory odour buffer of 750 metres to the east of Lake Coogee over [Lot 5]?

   5)Has a Development Application for [Lot 5] been refused as a result of the [WWTP odour pollution buffer]?

   6)Are there effects [sic] of an injurious nature that the owners of [Lot 5] have suffered as a result of the placement of an odour buffer by the respondent?

   7)Would the property value, and use of the property have been different if no odour buffer was placed by the respondent on [Lot 5]?

3. The applicants provided the Tribunal with a great number of documents which they consider to be in support of their application, including a copy of the Western Australian Planning Commission's State Industrial Buffer Policy, a copy of the Water Authority's licence to operate the WWTP, copies of various Planning Commission planning bulletins, a copy of a document entitled 'Role and Functions of the EPA', a copy of a Discussion Paper from the Law Reform Commission of Western Australia entitled 'Compensation for Injurious Affection' issued in October 2007 and a copy of the Environmental Protection Authority's draft 'Guidance for the Assessment of Environmental Factors' dated June 2004.  They also tendered a copy of a paper entitled 'Western Australian Environmental Planning Law' written in 2009 by counsel for the respondent.  Counsel for the respondent objected to the inclusion of this latter document on the basis that the paper was prepared for use by students and could be of no assistance to the Tribunal.  The Tribunal agreed, but the applicants then included the paper as part of their final submissions.

4. Leaving aside issue 1, which is simply a re-wording of the application, the applicants' 'issues' are, in fact, mostly questions about injurious affection.  These are not issues for determination by the Tribunal.  It follows that the applicants' contentions in support of their application are largely irrelevant.

5. The Tribunal's approach is therefore first to settle the issues which need to be considered and then respond to them, taking into account the applicants' contentions insofar as they are relevant to those issues.  Any of the applicants' issues and contentions which are not specifically dealt with in these reasons should be taken as being rejected.

6. The basis of the application is the applicants' contention that Lot 5 is injuriously affected by reference to s 174(1)(a) or (c) and s 174(3) of the Planning Act and they seek a determination accordingly. It should be said, however, that at the hearing of this proceeding the applicants stated that they are relying on s 174(1)(a); (see T:54; 03.04.12 and T:64; 03.04.12). Later in the hearing they emphasised that with the following statement:

   Most of Mr McLeod's arguments were talking about Town Planning Scheme 3, 4.2.1, or non­conforming use or industrial and commercial as related to the minutes of the meeting in 2005. I am just a bit confused, because the grounds of our application were based on section 174(1)(a), which was the reservation of the land for public use. We weren't claiming (c) non-conforming or anything else and in talking about the commercial and industrial, we were responding to Mr Andrew Trosic's statement, where he said that he didn't think it was injuriously affected because we could perhaps in the future have commercial and industrial. We thought that our application to SAT was specific and because of the development application that was refused for residential. So I don't see why we're talking about possible industrial and commercial when our application is only dealing with this.

   (T:63; 03.04.12)

7. Despite this, we consider that we should have regard to the whole of the provisions of s 174(1).

8. The first issue is whether or not the effect of TPS 3 and the LPS is to reserve Lot 5 under the planning scheme for a public purpose, as contemplated by s 174(1)(a) of the Planning Act.

9. If not, the next issue is whether or not TPS 3 and the LPS permit development of Lot 5 for no other purpose than a public purpose; s 174(1)(b) of the Planning Act.

10. If not, the next issue is whether or not TPS 3 and the LPS prohibit wholly or partly the continuance of any non­conforming use of Lot 5 or the erection, alteration or extension on Lot 5 of any building in connection with or in furtherance of, any non­conforming use of Lot 5 which, but for that prohibition, would not have been an unlawful erection, alteration or extension under the laws of the State or the local laws of the respondent; s 174(1)(c) of the Planning Act.

11. If not, the final issue is whether or not any other provision of Pt 11 of the Planning Act could lead to a determination that Lot 5 has been injuriously affected.

12. These, we consider, are the determinative issues.

Is Lot 5 reserved under the planning scheme for a public purpose?

1. As Judge Chaney (as he then was) said in City of Canning and Avon Capital Estates (Australia) Ltd [2008] WASAT 46 at [26] ­ [27] the words of s 174(1)(a) are unambiguous and a determination as to whether land is reserved under a planning scheme for a public purpose is a matter easily resolved by reference to public documents. The Tribunal has the power under s 174(1)(a) of the Planning Act to determine a question as to whether land is injuriously affected, but this should not be construed as a power to make a finding that there has been something included in a planning scheme which is 'tantamount to a reservation'. Reservation is a matter of fact.

2. In Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 McLure JA said (at [47]) that the purpose of a reservation is to indicate the intention that the land will be purchased or be taken by government for public purposes.

3. There is nothing before us to indicate that there is any intention that Lot 5 is to be acquired for a public purpose.

4. There is no doubt that the WWTP odour pollution buffer zone places constraints on Lot 5 and that residential development of Lot 5 is restricted. However, those restrictions do not constitute a reservation. The plain fact is that Lot 5 is not reserved under a planning scheme for a public purpose and is therefore not injuriously affected under s 174(1)(a) of the Planning Act.

Does the planning scheme permit development of Lot 5 for no purpose other than a public purpose?

1. Again, the simple answer to this question is that the planning scheme does in fact permit development of Lot 5 for purposes other than a public purpose.  The applicants do not argue otherwise and, even if they were to do so, this issue is easily resolved by reference to TPS 3 and DA5 where it is clear that development is not precluded within the WWTP odour pollution buffer zone except that residential development is restricted within that zone.

Does the planning scheme prohibit wholly or partly the continuance of any non­conforming use of Lot 5?

1. This issue is answered in the negative.  The applicants' use of Lot 5 is not a non­conforming use under TPS 3 because the planning scheme does not prohibit the use of Lot 5 for residential purposes.  What is not likely to be approved in the exercise of planning discretion, as a matter of orderly and proper planning, within the WWTP odour pollution buffer zone is further development which would increase residential development within the area of the buffer.

2. It follows therefore that s 174(3) has no application in this case.

Are there any other provisions of the Planning Act giving rise to a claim that Lot 5 has been injuriously affected?

1. The only other provision in Pt 11 of the Planning Act which could possibly apply in this case is s 186, which provides that compensation is payable in respect of land injuriously affected by the declaration of a planning control area. However, the WWTP odour pollution buffer zone does not create a planning control area because it has not been declared and is not in force under s 112 of the Planning Act.

Conclusion

1. For the foregoing reasons, we are of the view that because the land is not reserved under TPS 3 for a public purpose, because TPS 3 permits development on Lot 5 for purposes other than a public purpose and because TPS 3 does not prohibit wholly or partially the continuance of any current non­conforming use of that land, Lot 5 is not by operation of s 174(1) of the Planning Act injuriously affected by reason of the making of that scheme.

Orders

1.The Tribunal finds that Lot 5 Fawcett Road, Munster in the City of Cockburn is not injuriously affected by the City of Cockburn Town Planning Scheme No 3 for the purposes of Pt 11 of the Planning and Development Act 2005 (WA).

2.The application is dismissed.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE T SHARP, DEPUTY PRESIDENT