O'SULLIVAN and CITY OF SUBIACO
[2019] WASAT 9
•5 MARCH 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: O'SULLIVAN and CITY OF SUBIACO [2019] WASAT 9
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
HEARD: 11 JANUARY 2019
DELIVERED : 11 JANUARY 2019
PUBLISHED : 5 MARCH 2019
FILE NO/S: DR 306 of 2017
BETWEEN: CHANTELLE O'SULLIVAN
First Applicant
PHILIP CRESSWELL
Second Applicant
GILLIAN ANDERSON
Third Applicant
SIMON LAWTON
Eighth Applicant
LINDSAY LAWTON
Ninth Applicant
AND
CITY OF SUBIACO
First Respondent
MEDICAL PROCEDURES RESEARCH PTY LTD
Second Respondent
Catchwords:
Town planning Representations to Minister for Planning contending failure of a local government to enforce or implement effectively observance of local planning scheme Local government resolved to approve a longer period than six months since discontinuance of non-conforming use in order to enable non-conforming use to continue Representations contend failure to enforce or implement effectively observance of local planning scheme, because resolution to approve longer period made in absence of development application and without advertising proposal SAT proceeding adjourned to enable judicial review proceeding in Supreme Court challenging resolution to be heard and determined first Supreme Court dismissed application for judicial review Practice & procedure Whether applicants may contend in SAT proceeding that local government failed to effectively enforce local planning scheme, because current use of site is not authorised as non-conforming use by historical development approval Whether this issue is within scope of representations
Legislation:
City of Subiaco Local Planning Scheme No. 4, cl 15(1), cl 15(2)
City of Subiaco Town Planning Scheme No. 3
Planning and Development Act 2005 (WA), s 211, s 211(1), s 211(2)
State Administrative Tribunal Act 2004 (WA), s 37(3), s 46(1)
Result:
Issue applicants seek determination of is not within scope of representations
Summary of Tribunal's decision:
The Minister for Planning referred representations to the Tribunal for its report and recommendations under s 211 of the Planning and Development Act 2005 (WA). The representations contend that the City of Subiaco failed to enforce or implement effectively the observance of the City of Subiaco Local Planning Scheme No. 4, because the City failed to require a development application to be lodged, and failed to advertise the proposal, before a resolution was put and carried at a Council meeting to approve a longer period than six months since the discontinuance of the non-conforming use of a property as a lodging house in order to enable that non-conforming use to continue.
The applicants also commenced judicial review proceedings in the Supreme Court of Western Australia to challenge the validity of the Council resolution. The SAT proceeding was adjourned in order to await the determination of the Supreme Court. The Supreme Court dismissed the application for judicial review.
The applicants then sought to contend in the SAT proceeding that the City has failed to effectively enforce the Scheme, because the current use of the site is not authorised as a non-conforming use under a historical development approval for the use of the site as a lodging house. The City and the property owner argued that this issue does not fall within the scope of the representations to the Minister and therefore that the Tribunal does not have jurisdiction to determine it.
The Tribunal observed that the issue sought to be raised by the applicants goes to the enforcement of the Scheme. However, the Tribunal determined that this issue does not fall within the scope of the applicants' representations to the Minister and therefore that the Tribunal does not have jurisdiction to determine it.
Category: B
Representation:
Counsel:
| First Applicant | : | In Person |
| Second Applicant | : | No appearance |
| Third Applicant | : | In Person |
| Eighth Applicant | : | No appearance |
| Ninth Applicant | : | No appearance |
| First Respondent | : | Mr CA Slarke |
| Second Respondent | : | Mr J Skinner |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Third Applicant | : | N/A |
| Eighth Applicant | : | N/A |
| Ninth Applicant | : | N/A |
| First Respondent | : | McLeods |
| Second Respondent | : | LSV Borrello Lawyers |
Case(s) referred to in decision(s):
Lakes Action Group Association Inc and Shire of Northam [2004] WATPAT 195
Nicholls and City of Mandurah [2008] WASAT 141
O'Sullivan v City of Subiaco [2018] WASC 284
REPORT AND RECOMMENDATIONS OF THE TRIBUNAL:
Referral of representations for report and recommendations
On 29 September 2017, the Minister for Planning, Hon Rita Saffioti MLA (Minister), referred representations to the Tribunal, which had been made to her by Chantelle O'Sullivan, Phillip Cresswell, Gillian Anderson, Ryan and Somer Palazzolo, Thi Anh Dung Tran and Hon Hieu Le, and Simon and Lindsay Lawton, for report and recommendations by the Tribunal, pursuant to s 211 of the Planning and Development Act 2005 (WA) (PD Act).
Section 211(1) of the PD Act states as follows:
A person aggrieved by –
(a)the failure of a local government to enforce or implement effectively the observance of a local planning scheme; or
(b)the failure of a local government to execute any works which, under a local planning scheme or this Act, the local government is required to execute,
may make representations to the Minister.
Under s 211(2) of the PD Act, the Minister may refer such representations to the Tribunal for its report and recommendations. Section 211(2) provides:
The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.
The representations are in the form of the following letter dated 19 June 2017 to the Minister (representations letter):
19 June 2017
Honourable Rita Saffioti MLA
Minister for Transport; Planning; Lands
9th Floor, Dumas House
2 Havelock Street
WEST PERTH WA 6005
e-Mail: [email protected]
c.c. [email protected]To the Hon. Minister Saffioti MLA
Former Ronald McDonald House, Lot 33 (15,16-20) York St, Subiaco
We are seeking the revocation of a City of Subiaco Council decision.
BACKGROUND
A number of concerned residents within the City of Subiaco would like to raise their concerns relating to a recently endorsed motion by the City of Subiaco at its meeting of 23 May 2017, in which Cr Rowe raised an elected member's motion in relation to the subject land. As a result of this motion, we believe that Council has failed to manage and enforce its own Town Planning Scheme No 4 and we respectfully request that you use the powers outlined and provided to you in section 2.1.1 [sic] of the Planning and Development Act 2005.
The site is located at Lot 33 (15,16-20) York St, Subiaco and is zoned Residential and has an R50 density applied to the site. We believe that at some stage in the past (circa 1989) Council granted an approval for the use of the site as a specific purpose Lodging House. During the time since that approval was issued and today, Council's Scheme has been amended which has now deemed that a Lodging House, is an X use, meaning that it is not permitted. As Council has previously legally approved the use, the site continues to enjoy Non- Conforming Use rights afforded to it via clause 15 of the Scheme. The site has been vacant since December 2015 and therefore extends beyond the 6 months as outlined in the Scheme.
The site is located in an area which is zoned for residential purposes and is characterised by such residential buildings.
THE ISSUE AT HAND
Council at its recent meeting, resolved to extend the Non-Conforming use without any consultation. As outlined in clause 15 (5) of the Scheme, prior to Council considering this, the proposal must be advertised in accordance with the Scheme provisions. In addition to this fact, the Council has not received a valid application for this, which should have been lodged on a Form 3, in accordance with Council's Scheme. In short, the Council has acted in a manner which is ultra-vires and has not adhered to the processes outlined in the Scheme.
I also draw your attention to the advice provided by the City of Subiaco administration in relation to this matter. The community in close proximity to the site, and seriously concerned that the lack of planning controls (as none have been seen to date) which regulates the management and use of the site, this will have a detrimental effect on the neighbouring properties.
SUPPORTING INFORMATION
C11.3 ELECTED MEMBER['S] MOTION 15,16 - 20 YORK STREET SUBIACO - DISCRETION TO BE PROVIDED FOR AN EXTENDED PERIOD UNDER 15(2)(B) OF THE TPS4
Submitted by: Cr Murray RoweELECTED MEMBER'S MOTION/COUNCIL DECISION
- Moved Cr Rowe/seconded Cr Matheson
That Council uses its discretion under Clause 15(2)(b) of TPS4 to APPROVE a longer period of time of 24 months for the continuation of the original 1989 Approved land use of Lodging House for the Property at 16-20 York Street, Subiaco.
CARRIED 8/3 - CRS STROUD, RICHARDSON AND MUMMERY VOTED AGAINST 9.34pm
PROCEDURAL MOTION
Moved Cr Richardson/seconded Cr Mummery
This matter is of grave concern for two reasons. Firstly for the City of Subiaco's failure to enact their own Town Planning Scheme for premises that ceased occupancy and hence the permitted exemption within a R50 zoned residential area. Secondly, that this failure to enact the Scheme has resulted in Councillors voting on a Motion that appears to also go against the City of Subiaco's Council Administrations own Planning advice and recommendation for a Planning Application and consultation before any recommendation on planning compliance given the 16 month period the premise has been unoccupied and operating as usual since moving to the new Nedlands site. (See enclosed public documents confirming the timing of this cease of operations).
There is plenty of evidence Ronald McDonald House (owned by PMH Foundation) ceased operating at this site in Dec 2015. The motivations of PMH Foundation appear clear in that seeking the continuance allows for a commercial advantage to sell this property with a title permitting both residential and lodging house use to attract a wider and stronger commercial sale. The organisation continues to operate shuttle bus pick up and collection services in the carpark but has not operated within the premises at all since Dec 2015. In fact they have an alarm system which is no longer monitored and continually goes off at various times of the day - it is a completely vacated and abandoned accommodation site, not in use. WA Police have attended the empty site to move on vagrants, during this period.
Additionally it appears a specific interest may be looking to purchase this property, the Fresh Start organisation. Fresh Start Addiction Rehabilitation accommodation for men is interested in this acquisition. This is a completely different type of accommodation and lodging use and is unsuitable to be located within a residential zoned area. The surrounding land dwellings are residential with many families present in the area and this type of lodging is completely inappropriate.
Given the current State Government considerations for developing a new State High School in the same proximity to this site, along with the adjacent redevelopment of the PMH site, surely surrounding land use considerations should be of prime interest to the Minister. It seems somewhat premature that Subiaco Councillors can determine at their discretion such an exemption without thorough consultation given this state focus for redevelopment of adjacent lands. This item and planning consideration should be a matter for public consultation, including surrounding and nearby land owners and State Government authorities.
Add to this concern regarding amenity. Any new intended occupancy represents an 'alteration' to the previous non-conforming use, and therefore requires an application for planning approval. It provides for appropriate processes to be followed - that is, application made, application advertised and application determined on its merits. The strength of this approach is that, in the context of the sensitivity that this issue has raised, this approach allows a fresh, merit-based, and fair consideration of the true intentions by the proponent and a fair hearing for all.
We ask that the Ministers [sic] Office investigate and use your powers under section 2.1.1 [sic] of the Planning and Development Act 2005.
Regards
Chantelle O'Sullivan
…
Philip Cresswell and Gillian Anderson
…
Ryan and Somer Palazzolo
…
Thi Anh Dung Tran and Hong Hieu Le
…
Simon and Lindsay Lawton
…
Clause 15(1) and (2) of the City of Subiaco Local Planning Scheme No. 4 (LPS 4 or Scheme) states as follows:
(1)Unless specifically provided, this Scheme does not prevent —
(a)the continued use of any land, or any structure or building on land, for the purpose for which it was being lawfully used immediately before the commencement of this Scheme; or
(b)the carrying out of development on land if –
(i)before the commencement of this Scheme, the development was lawfully approved; and
(ii)the approval has not expired or been cancelled.
(2)Subclause (1) does not apply if —
(a)the non-conforming use of the land is discontinued; and
(b)a period of 6 months, or a longer period approval by a local government, has elapsed since the discontinuance of the non-conforming-use.
The representations contend that there was legal error on the part of the City of Subiaco (City or Council) in the consideration and determination of the elected member's motion put to the meeting of the Council on 23 May 2017 to approve a longer period than six months since the discontinuance of the lodging house non-conforming use at Nos 16-20 York Street, Subiaco (site) in order to enable that non-conforming use to continue at the site (resolution). In particular, the representations contend that 'the Council has acted in a manner which is ultra-vires and has not adhered to the processes outlined in the Scheme'. In substance, the representations contend that the Council has failed to enforce or implement effectively the observance of LPS 4, because it failed to require a development application (the form of which is set out in Sch 3 to LPS 4 and is referred to in the representations letter as a 'Form 3') to be lodged, and failed to advertise the proposal under the Scheme, before the resolution was put and carried at the Council meeting on 23 May 2017.
The representations letter also said that 'it appears [that] a specific interest may be looking to purchase [the site], [namely] the Fresh Start organisation' and expressed the following concern:
Fresh Start Addiction Rehabilitation accommodation for men is interested in this acquisition. This is a completely different type of accommodation and lodging use and is unsuitable to be located within a residential zoned area. The surrounding land dwellings are residential with many families present in the area and this type of lodging is completely inappropriate.
Conduct of SAT proceedings and Supreme Court proceedings
This proceeding was commenced on 2 October 2017. The authors of the representations letter were named as applicants and the City was named as respondent. At the initial directions hearing, which took place on 3 November 2017, Medical Procedures Research Pty Ltd, which had agreed to purchase the site, was required to file with the Tribunal and give to the parties evidence of the purchase of the property by 10 November 2017 and the applicants were required to file with the Tribunal and give to the City and Medical Procedures Research Pty Ltd a statement of the scope of the representations by 24 November 2017.
At the second directions hearing, which took place on 1 December 2017, the Tribunal was informed that the applicants were in the process of commencing judicial review proceedings in the Supreme Court of Western Australia to challenge the validity of the Council resolution which is also the subject of this proceeding (Supreme Court proceedings). At the directions hearing, the Tribunal granted leave to Medical Procedures Research Pty Ltd to intervene in the proceeding, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and named it as second respondent. The Tribunal also made programming orders requiring the respondents to file with the Tribunal and give the applicants and the Minister a reply to the applicants' statement of scope of representations by 15 December 2017, the parties to file and give to the Minister an agreed statement of facts and an agreed bundle of documents for the purposes of the Tribunal's report and recommendations by 25 January 2018, and the parties to each file, exchange and give to the Minister any evidence on which they propose to rely as to facts which are not agreed by 15 February 2018. The proceeding was adjourned to a directions hearing on 23 February 2018 'in order to review the matter and for the parties to inform the Tribunal as to the progress of the Supreme Court proceedings'.
At the directions hearing on 23 February 2018, the date for the agreed statement of facts and agreed bundle of documents was extended to 16 March 2018 and, in light of the pending Supreme Court proceedings, the order requiring the parties to file and exchange evidence in the SAT proceedings was discharged and the matter was adjourned 'in order to await the decision of the Supreme Court'. During the course of the SAT proceedings, the Tribunal granted leave to Ryan and Somer Palazzolo and Thi Anh Dung Tran and Hong Hieu Le to withdraw as applicants, pursuant to s 46(1) of the SAT Act.
The applicants in the Supreme Court proceedings included Ms O'Sullivan, Mr Cresswell and Ms Anderson and the respondents were the City and Medical Procedures Research Pty Ltd. The Supreme Court proceedings were heard by Allanson J on 23 August 2018. On 13 September 2018, his Honour dismissed the application for judicial review in relation to the Council's resolution of 23 May 2017: O'Sullivan v City of Subiaco [2018] WASC 284. In particular, his Honour did not accept the applicants' submissions that ([31]):
… on the proper construction of the [LPS 4], a decision to approve a period longer than six months for the purposes of cl 15(2)(b) is approval of a development [and] [i]t therefore requires approval pursuant to pt 7 and pt 8 of [the deemed provisions in local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)].
Following the determination of the Supreme Court proceedings, the remaining applicants considered their position and now wish to proceed with this proceeding before the Tribunal on the basis that they contend that the City has failed to effectively enforce the Scheme, because the current use of the site by Medical Procedures Research Pty Ltd, which commenced in December 2017, is not authorised as a nonconforming use under LPS 4 by the development approval granted in 1989 for the use of the site as a lodging house and, therefore, development approval is required under the Scheme for the current of the site.
Issue for determination
The City and Medical Procedures Research Pty Ltd submit that the issue now sought to be raised by the applicants does not fall within the scope of the representations made by the applicants to the Minister and therefore that the Tribunal does not have jurisdiction to determine whether the current use of the site is authorised as a non-conforming use under LPS 4.
The applicants are represented today by Ms O'Sullivan and Ms Anderson who submit, in essence, that they and the other applicants have been concerned, since before the Council resolution in May 2017, as to the prospect of the organisation which is now Medical Procedures Research Pty Ltd taking over operation of the site and concerned about whether the use of the site by that organisation would be lawful, and that, they say, is the issue they now wish the Tribunal to determine.
The City and the operator of the site, Medical Procedures Research Pty Ltd, submit that the issue now sought to be raised simply does not fall within the scope of the representation, essentially for two reasons. The first is that the issue could not logically fall within the scope of the representations, because the use commenced some six months after the representations were made. Secondly, they submit, the representations do not, in substance, concern the issue now sought to be raised.
Factual background
The following facts are agreed between the parties:
•On 6 June 1989, the City granted development approval under the City of Subiaco Town Planning Scheme No. 3 (TPS 3) which enabled the use of the site a lodging house;
•The site was developed by a former owner and was operated as a lodging house by the organisation known as 'Ronald McDonald House charity';
•On 23 March 2001, LPS 4 was gazetted and revoked TPS 3; under LPS 4, a Lodging House is a prohibited ('X') use in the Residential R50 zone;
•Upon the gazettal of LPS 4, the site was being lawfully used for the purpose of a lodging house, and that became a non-conforming use of the property under LPS 4;
•By about 9 December 2015, Ronald McDonald House charity ceased use of the site; and
•Between 9 December 2015 and 23 May 2017 (the date of the Council resolution), there were no lodgers at the site, no physical alteration or development was carried out and no other use commenced at the site.
Although it is not an agreed fact, Medical Procedures Research Pty Ltd asserts and the applicants do not dispute that it commenced the current use of the site in about December 2017.
Does the issue now sought to be raised by the applicants fall within the scope of the representations?
As I said earlier, the applicants had expressed concern in the representations letter to the Minister as to the nature of the use by the Fresh Start organisation and, in particular, the 'Fresh Start Addiction Rehabilitation accommodation for men', which operated at different premises at the time of the representations letter in June 2017. The applicants had a concern in June 2017 that that organisation would purchase the property, as it has subsequently done, and commence rehabilitation use. In particular, they expressed the concern in the representations letter that that 'is a completely different type of accommodation and lodging use', involving an alteration or a change from the authorised use.
However, in my view, the representations to the Minister do not include a contention that the City has failed to effectively enforce the Scheme, because the current use of the site does not fall within the scope of the development approval granted in 1989, for two reasons. First, as the current use had not commenced at the time of the representations, the representations could not have contended and did not contend that the City has failed to effectively enforce LPS 4, because the current use is not authorised by the development approval granted in 1989. Secondly, the substance of the representations made to the Minister clearly concerned the validity of the Council resolution made on 23 May 2017. Thus, the representations do not extend to the issue now sought to be ventilated by the applicants in this proceeding.
The Tribunal does not have jurisdiction to, in effect, allow the applicants to amend their representations to the Minister, in the same way as the Tribunal does not have jurisdiction to address any issue raised by the Minister for the Tribunal's consideration which is beyond the scope of any representations made to her: Lakes Action Group Association Inc and Shire of Northam [2004] WATPAT 195 at [18]; endorsed in Nicholls and City of Mandurah [2008] WASAT 141 at [29]. As Deputy President Judge Chaney said in Nicholls and City of Mandurah at [29], the Tribunal's jurisdiction and power is limited under s 211 of the PD Act:
… to a report and recommendation only on matters which were the subject of representations to the Minister …
I accept that the issue that the applicants now wish to raise goes to enforcement of the Scheme. However, in the circumstances, if the Tribunal were to proceed to determine that issue, then it would be acting without jurisdiction. The Tribunal cannot do so.
Conclusion and orders
In the circumstances, there is no alternative for the Tribunal other than to report to the Minister that the issue that the applicants now wish to raise does not fall within the scope of the representations, although it does raise an issue, or a potential issue, as to enforcement of the local planning scheme.
For these reasons, the Tribunal makes the following orders:
1.The Tribunal reports to the Minister for Planning that:
(a)The representations alleging a failure to effective enforce the observance of the City of Subiaco Local Planning Scheme No. 4 in terms of the resolution made on 23 May 2017 have been, in substance, addressed by the decision of the Supreme Court of Western Australia in O'Sullivan v City of Subiaco [2018] WASC 284, determining that the resolution was valid.
(b)The issue that the applicants seek determination of, namely whether the current use of the land at 16-20 York Street, Subiaco is authorised as a non-conforming use in the City of Subiaco Local Planning Scheme No. 4, although potentially concerning whether there has been a failure by the local government to enforce the observance of a local planning scheme, does not fall within the scope of the representations made to the Minister on 19 June 2017.
2.The Tribunal notes that the following persons withdrew as applicants during the course of the proceedings:
(a)Ryan and Somer Palazzolo;
(b)Thi Anh Dung Tran; and
(c)Hong Hieu Le.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry5 MARCH 2019
0
2
4