O'Sullivan v City of Subiaco
[2018] WASC 284
•13 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: O'SULLIVAN -v- CITY OF SUBIACO [2018] WASC 284
CORAM: ALLANSON J
HEARD: 23 AUGUST 2018
DELIVERED : 13 SEPTEMBER 2018
FILE NO/S: CIV 3000 of 2017
BETWEEN: CHANTELLE MAREE O'SULLIVAN
First Applicant
MY PLACE FOUNDATION INC
Second Applicant
PHILIP JOHN CRESSWELL
GILLIAN ANDERSON
Third Applicants
GLEN RICHARD STEVENS
Fourth Applicant
EJJAA PTY LTD
Fifth Applicant
JIM DAVIES & ASSOCIATES PTY LTD
Sixth Applicant
LA BREA NOMINEES PTY LTD
Seventh Applicant
ARIAN INVESTMENTS PTY LTD
Eighth Applicant
AND
CITY OF SUBIACO
First Respondent
MEDICAL PROCEDURES RESEARCH PTY LTD
Second Respondent
Catchwords:
Administrative law - Planning and development - Construction of local planning scheme - Where non-conforming use discontinued - Whether development approval required
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 1, sch 2
Planning and Development Act 2005 (WA), pt 5, pt 15, s 4, s 73, s 172, s 174(1), s 187, s 252, s 257B
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr M D Cuerden SC & Mr D Chandler |
| Second Applicant | : | Mr M D Cuerden SC & Mr D Chandler |
| Third Applicants | : | Mr M D Cuerden SC & Mr D Chandler |
| Fourth Applicant | : | Mr M D Cuerden SC & Mr D Chandler |
| Fifth Applicant | : | Mr M D Cuerden SC & Mr D Chandler |
| Sixth Applicant | : | Mr M D Cuerden SC & Mr D Chandler |
| Seventh Applicant | : | Mr M D Cuerden SC & Mr D Chandler |
| Eighth Applicant | : | Mr M D Cuerden SC & Mr D Chandler |
| First Respondent | : | Mr K M Pettit SC |
| Second Respondent | : | Mr J Skinner |
Solicitors:
| First Applicant | : | Williams & Hughes |
| Second Applicant | : | Williams & Hughes |
| Third Applicants | : | Williams & Hughes |
| Fourth Applicant | : | Williams & Hughes |
| Fifth Applicant | : | Williams & Hughes |
| Sixth Applicant | : | Williams & Hughes |
| Seventh Applicant | : | Williams & Hughes |
| Eighth Applicant | : | Williams & Hughes |
| First Respondent | : | McLeods |
| Second Respondent | : | LSV Borrello Lawyers |
Case(s) referred to in decision(s):
Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
ALLANSON J:
The applicants apply for judicial review of a decision of the City of Subiaco made pursuant to the City of Subiaco Local Planning Scheme No 4 (TPS 4). The decision was made on 23 May 2017, when the City approved a period of 24 months for the continuation of the original 1989 approved land use of Lodging House for a property at 16‑20 York Street, Subiaco.
The application is brought on a single ground:
The first respondent exceeded its jurisdiction by purporting to exercise power under cl 15(2)(b) of the City of Subiaco ‑ Local Planning Scheme No. 4 ('Scheme') to approve a period of longer than 6 months since the discontinuance of the non-conforming use in the absence of an application for development approval.
The application was initially brought on four grounds, with a fifth ground later foreshadowed. On 23 January 2018, the applicants gave the other parties notice that they would discontinue ground 2. On 9 May 2018, the applicants gave the other parties notice that they would discontinue ground 3. Ground 4, and the proposed ground 5, were abandoned in early August 2018. The abandoned grounds, and the circumstances in which they were discontinued, remain relevant only to the issue of costs.
The evidence
The parties filed a bundle of agreed documents.
On 3 April 2018, the parties also filed a statement of agreed facts, which was later amended on 2 May 2018.
1.The land at 16-20 York Street, Subiaco, being the whole of Lot 33 on Diagram 78444 (Property) is zoned 'Residential R50' under the City of Subiaco Town Planning Scheme No 4 (TPS 4).
2.On 6 June 1989 the City of Subiaco (City) issued a Notice of Approval to Commence Development of the Property for a Lodging House pursuant to the former City of Subiaco Town Planning Scheme No 3 (TPS 3), and the Property was subsequently developed and used thereafter as a Lodging House.
3.On 23 March 2001 TPS 4 was gazetted and TPS 3 was revoked.
4.Under TPS 4, a Lodging House is a prohibited (X) use in the Residential R50 zone.
5.Upon the gazettal of TPS 4, the Property was being lawfully used for the purpose of a Lodging House, and that use became a non-conforming use of the Property.
6.At all material times, the City has maintained a register of non‑conforming uses.
7.At all material times prior to 9 December 2015: (a) the registered proprietor of the Property was Princess Margaret Hospital for Children Inc; and (b) the occupier of the property was Home Away From Home Inc, an incorporated association and charitable organisation operating as Ronald McDonald House (Ronald McDonald House) which provided lodgement to families with children in hospital.
8.By on or about 9 December 2015: (a) all lodgers moved out of the Property; (b) all Ronald McDonald House staff vacated the Property; and (c) Ronald McDonald House commenced operations at new premises in Nedlands.
9.On 2 May 2016, Home Away From Home Inc became the registered proprietor of the Property.
10.Between 9 December 2015 and 23 May 2017: (a) no lodgers were accommodated at the Property; (b) no physical alteration or development was carried out at the Property; and (c) no other use commenced at the Property.
11.The Second Respondent: (a) is a company duly incorporated; and (b) since 9 February 2017 has had, as one of its directors, Mark Burns (Mr Burns).
12.By offer and acceptance dated 1 May 2017, subject to conditions, the Second Respondent, as trustee for the Australian Medical Procedures Research Foundation, entered into a contract to purchase the Property and a neighbouring property at 15 Hamilton St, Subiaco, from Home Away From Home Inc.
13.Australian Medical Procedures Research Foundation Ltd (the entity referred to in the offer and acceptance) is a registered charitable organisation.
14.Since 9 February 2017, Australian Medical Procedures Research Foundation Ltd has had, as one of its directors, Mr Burns.
15.The Second Respondent became the registered proprietor of the Property on 6 November 2017.
16.By letter dated 10 May 2017 the firm TPG Place Match applied in writing to the City for approval of a longer period (of 24 months), pursuant to clause 15(2)(b) of TPS 4 (TPG application). The application was not an application for development approval. TPG Place Match were instructed by the Second Respondent.
17.The TPG application was not put to or voted on by the Council of the City of Subiaco (Council).
18.On 23 May 2017, a Council meeting was held at which an Elected Members' Motion was submitted by Councillor Murray Rowe and included in the agenda of meeting as item C11.3 a proposed resolution in the following terms: '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.' (Resolution)
19.As at 23 May 2017, Mr Burns was also an elected Councillor of the City of Subiaco.
20.At the Council meeting on 23 May 2017: (a) Mr Burns declared himself as having an interest in item C11.3 by reason of being 'a Director of a company that is the trustee of a charitable foundation that has indicated an interest in the property being the subject of the item'; (b) Mr Burns' declaration was read out at the Council meeting; (c) Mr Burns voted in favour of item C11.3; (d) By 8 votes in favour, 3 against, the Council passed the Resolution.
21.Councillor Rowe provided reasons in support of the Resolution.
22.The members of the Council were not requested to and did not make any decision under section 5.68 of the Local Government Act 1995 (WA) in respect of Mr Burns' participation in the decision-making procedures relating to Item C11.3.
23.The Council and the CEO were not requested to and did not make any application to the Minister for Local Government under section 5.69 of the Local Government Act 1995 (WA) in respect of Mr Burns' participation in the Council meeting relating to Item C11.3.
24.Each of the Applicants except the Second and Sixth Applicants are and were at all material times registered proprietors of properties in the immediate vicinity of the Property.
25.The Second and Sixth Applicants are and were at all material times lessees of properties in the immediate vicinity of the Property.
26.On 8 December 2017 the City issued a Certificate of Registration of a Lodging House for the Property, pursuant to the City of Subiaco Health Local Laws.
The applicants do not agree that the Property is being used in a continuation of the 1989 approved land use. That is not an issue for these proceedings.
Six of the applicants have also filed affidavits, the general tenor of which is that they apprehend and have witnessed anti-social behaviour attributed to the residents at the Property. The affidavits were received as relevant to the standing of the applicants to pursue the relief they seek.
Although I have had regard to the evidence, the decision turns on an issue of statutory construction.
The scheme and its statutory context
Construction of a scheme text
The proper approach to construction of a planning scheme was not in dispute. In Australian Unity Property Ltd v City of Busselton, the Court of Appeal set out the general principles.[1] In particular, their Honours emphasised the importance of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text. Particularly referring to planning schemes, the Court said:
[1] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] - [91].
These considerations are no less important when the legislative instrument being construed is a planning scheme. The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
That is not to say that the statutory text is to be read divorced from its context and purpose. Context and purpose may affect the meaning of the language that Parliament has chosen to use. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words are used with other than their ordinary meaning. The task of construction is not to make a fortress out of the dictionary. However, the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.
In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach. But the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.[2]
[2] Australian Unity Property Ltd v City of Busselton [82] - [84], citations omitted.
TPS 4
TPS 4 is a local planning scheme made in 2001, and continued in effect under pt 5 of the Planning and Development Act 2005 (WA).
The content of a local planning scheme is, to a degree, regulated by s 73 and pt 15 of the Planning and Development Act, and by the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), made pursuant to the Act.
Clause 15 of TPS 4 provides (relevantly):
(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 nonconforming-use.
(3)Subclause (1) does not apply in respect of a non-conforming use of land if, under Part 11 of the Act, the local government ‑
(a)purchases the land; or
(b)pays the compensation to the owner of the land in relation to the nonconforming use
(4)A person must not, without development approval ‑
(a)alter or extend a non-conforming use of land; or
(b)erect, alter or extend a building used for, or in conjunction with, a nonconforming use; or
(c)repair, rebuild, alter or extend a building used for a nonconforming use that is destroyed to the extent of 75% or more of its value; or
(d)change the use of land from a non-conforming use to another nonconforming use.
(5)An application for development approval for the purposes of this clause must be advertised in accordance with clause 64 of the deemed provisions.
(6)A local government may only grant development approval for a change of use of land referred to in subclause (4)(d) if, in the opinion of the local government, the proposed use ‑
(a)is less detrimental to the amenity of the locality than the existing non-conforming use; and
(b)is closer to the intended purpose of the zone in which the land is situated.
(7)The local government may prepare a register of land within the Scheme area that is being used for a non-conforming use.
(8)A register prepared by the local government must set out the following
(a)a description of each area of land that is being used for a non-conforming use;
(b)a description of any building on the land;
(c)a description of the non-conforming use;
(d)the date on which any discontinuance of the non-conforming use is noted.
(9)If the local government prepares a register under subclause (7) the local government ‑
(a)must ensure that the register is kept up-to-date; and
(b)must make a copy of the register available for public inspection during business hours at the offices of the local government; and
(c)may publish a copy of the register on the website of the local government.
(10)An entry in the register in relation to the land that is being used for a non-conforming use is evidence of the matters set out in the entry, unless the contrary is proved.
Clause 15 largely reproduces cl 22 to cl 24 of sch 1 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
TPS 4 must be read together with sch 2 to the Planning and Development (Local Planning Schemes) Regulations which contains 'deemed provisions' which have effect and may be enforced as part of the scheme, and which prevail to the extent of any inconsistency with another provision of the scheme.[3] TPS 4 contains provisions which deal with matters that are also covered by the deemed provisions. In particular, pt 4 of TPS 4 and pts 7 and 8 of sch 2 deal with development approval, and there is a degree of overlap with pt 4 of the scheme. It is unnecessary, for the purposes of this application, to resolve to what extent both apply. For the purpose of explication of my reasons, I will refer to the relevant provisions in sch 2 to the Regulations where it deals with essentially the same matter as pt 4 of TPS 4.
[3] Planning and Development Act s 257B.
Clause 14 of TPS 4 sets out the zoning table which indicates, subject to the provisions of the scheme, the uses permitted in each of the zones in the Scheme Area. Permissibility of uses is indicated by the symbols 'P',[4] 'D' and 'A',[5] and 'X'.[6]
[4] A use permitted by the Scheme providing the use complies with the relevant development standards and the requirements of the Scheme.
[5] Both of which are uses not permitted unless the local government has, in its discretion, granted planning approval.
[6] A use that is not permitted by the Scheme.
Part 7 of sch 2 to the Regulations - the deemed provisions - is headed 'Requirement for development approval'. By cl 60:
A person must not commence or carry out any works on, or use, land in the Scheme area unless ‑
(a)the person has obtained the development approval of the local government under Part 8; or
(b)the development is of a type referred to in clause 61.
Part 8, cl 62 to cl 64, prescribe the form of a development application, the required accompanying materials, and advertising requirements. Clause 64 applies those provisions to an application for development approval for development already commenced or carried out.
Schedule 1 to TPS 4 contains definitions, including definitions of the various use classes found in the zoning table.
Schedule 1 to TPS 4 also defines 'non-conforming use' to have the same meaning as it has in the Planning and Development Act.
Planning and Development Act
Non-conforming use is defined in s 172, in pt 11, div 2:
In this Division -
non-conforming use means a use of land which, though lawful immediately before the coming into operation of a planning scheme or amendment to a planning scheme, is not in conformity with a provision of that scheme which deals with a matter specified in Schedule 7 clause 6 or 7.[7]
[7] The matters specified in Sch 7 cl 6 are:
The definition in s 172 is the only definition of non-conforming use in the Act. Part 11 div 2, provides for compensation for injurious affection by a planning scheme, including where the scheme prohibits wholly or partially ‑
(i)the continuance of any non-conforming 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 non-conforming 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.[8]
[8] Planning and Development Act s 174(1)(c).
Where compensation for injurious affection is claimed as a result of the operation of the provisions of s 174(1), the responsible authority may at its option elect to acquire the land so affected instead of paying compensation.[9] This is reflected in cl 15(3) of TPS 4.
[9] Planning and Development Act s 187.
The Act also defines the following terms:
development means the development or use of any land, including ‑
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that ‑
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building;
development application means an application under a planning scheme, or under an interim development order, for approval of development;[10]
[10] Planning and Development Act s 4.
The decision
The terms of the relevant decision are set out in par 18 of the agreed statement of facts:
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.[11]
[11] While the decision does not specify from when the period of 24 months runs, it was common ground that it commenced when the relevant use was discontinued.
The issues
The parties have identified the following issues:
(1) do the applicants have standing to bring this application for review of the decision;
(2)was an application for development approval pursuant to pt 4 of TPS 4 a necessary condition for a valid decision to approve a period of longer than six months within the meaning of cl 15(2)(b)?
The question of standing was dealt with in written submissions, but not in oral argument. In effect, the hearing proceeded on the basis that if the applicants established the decision was invalid, their interest in the decision would be taken into account by the court in deciding whether relief should be granted or withheld in the exercise of the court's discretion.[12]
[12] See, for example, Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [56] ‑ [67] (Pritchard J).
The current application does not put in issue whether the present use of the property is the continued use of the land, or any structure or building on it, for the purpose for which it was being lawfully used immediately before the commencement of TPS 4. Nor did the applicants contend that the power to approve a longer period pursuant to cl 15(2) could only be exercised within six months of discontinuance of the non-conforming use.
Consideration
In written submissions, the applicants submitted that cl 15(2)(b) assumes the existence of a power to approve a period longer than six months. They contended that, on the proper construction of TPS 4, the source of the City's power to approve a period longer than six months under cl 15(2)(b) is its power to grant development approval under pt 4 of TPS 4. Accordingly, the power is subject to compliance with cl 25 and cl 26 of TPS 4.
As a general rule subsidiary legislation such as a local planning scheme may require a matter affected by the legislation to be approved to the satisfaction of a specified body, and may confer a discretionary authority on a specified person or body.[13]
[13] Interpretation Act 1984 (WA) s 43(8)(b).
As a matter of construction, I do not believe that it is necessary to identify a source of the power to approve a longer period for the purposes of cl 15(2) outside the terms of that clause.
The applicants' primary submission was that a person may not use land in a scheme area without development approval following a development application, unless the development is of a type referred to in cl 61. The approval of a period longer than six months under cl 15(2)(b) permits the use of the land for a particular purpose which would not otherwise be permitted. The use of the land for that purpose is 'development' of the land. Accordingly, on the proper construction of the scheme, a decision to approve a period longer than six months for the purposes of cl 15(2)(b) is approval of a development. It therefore requires approval pursuant to pt 7 and pt 8 of the Schedule.
I do not accept the submission.
Clause 15(1) provides that the Scheme does not prevent the continued use of land for a purpose for which it was being lawfully used, or development under an existing development approval. Subclauses (2) and (3) then prescribe two circumstances in which subcl (1) does not apply.
Clause 15(1) does not expressly refer to 'non-conforming uses' but it clearly would, and is intended to, include in its operation a non‑conforming use as defined in s 172 of the Act.
Clause 15(1) also does not deal with where a use that was lawful at the time that TPS 4 came into operation has been discontinued or interrupted.
Clause 15(2) prescribes circumstances in which subcl (1) does not apply. It does not purport to empower the City to approve or make lawful a use that would otherwise be unlawful. It does not purport to apply subcl (1) in specified circumstances. But in determining whether cl 15(1) does not apply at a particular time, subcl (2) requires consideration of two questions: is the non-conforming use currently discontinued; and has a period of six months, or a longer period approved by the City, elapsed. In approving a longer period, the City does not grant development approval for the use. It alters the period that must elapse before cl 15(1) does not apply.
The approval, if given, relates to that period while the use is discontinued. It is not an approval of the use of the land for the future. Should the non-conforming use be again discontinued, the same questions will need to be asked in determining whether cl 15(1) applies at any given time after the use is discontinued.
In my opinion, it is also relevant that the considerations governing the exercise of the power to approve a longer period are not the same considerations that would apply in considering an application for development approval. In particular, the non-conforming use is, by definition, a use that is not in conformity with a provision of the scheme. Unless cl 15(1) applies, it is a use that the City cannot permit.
Counsel for the applicants sought to rely on the later subclauses in cl 15, which require a development application and development approval to alter or extend a non-conforming use; or to erect, alter, extend or repair a building used for a non-conforming use. But those provisions operate in the context of cl 15(1) applying, so that the scheme does not prevent the continued use of the land not in conformity with the scheme.
Clause 15(4)(d) does provide for a development application to change the use of land from one non‑conforming use to another non‑conforming use. But that is a quite different approval. First, cl 15(1) applies, so the existing non-conforming use may continue. Second, the scheme expressly authorises a development application in those circumstances. Third, cl 15(6) prescribes criteria for the grant of approval: that it is a change to a non-conforming use (that is, a use that was lawful when the scheme came into operation), that the proposed use is less detrimental to the amenity of the locality, and that it is closer to the intended purpose of the zone.
In summary, I do not regard the provisions of cl 15(4) to (6) as detracting from the respondents' argument that if cl 15(2)(b) requires an application for development approval to use the land for the non-conforming use, the construction is impractical as such an application must be futile. The use could not be approved. That, in my opinion, is a strong argument against the applicants' proposed construction.
The applicants also submitted, in written submissions, that an application for approval of a period longer than 6 months within cl 15(2)(b) is also an application for an 'extension' of a non-conforming use within the meaning of cl 15(4)(a), and by cl 15(5) requires development approval on that further basis. That argument was not pressed in oral submissions. I would not, in any event, accept the submission. The approval under cl 15(2)(b) is not an extension of the use. If the longer period under cl 15(2)(b) is characterised as an extension, it is an extension of the period to be considered in determining whether cl 15(1) applies.
The applicants made subsidiary submissions. They submitted that, unless the application is a development application, an applicant for approval of a longer period under cl 15(2) would have no review of the decision. Counsel appeared to accept, however, that the review provided for discretionary decisions in s 252 of the Planning and Development Act would apply. It is not, in any event, a consideration of any weight. There may be decisions which are not subject to administrative review but may only be reviewed for lawfulness.
The applicants submitted that it would be incongruous if an application for a use not otherwise permitted by the scheme could be approved other than after a development application, simply because the property had been used in that way in the past. They submitted that it made no sense that while an application ‑ with advertising ‑ is required before approving a permitted use, it is not required before approving a use not permitted but lawful in the (perhaps distant) past. The submission is founded on the premise, which I have rejected, that approval under cl 15(2)(b) is an approval of use. It fails for the same reason the applicants' primary submission fails.
Disposition
The application for review should be dismissed. The question of standing does not need to be determined.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON13 SEPTEMBER 2018
(1) Zoning of the scheme area for appropriate purposes.
(2) Designation of uses in zones as permitted, prohibited or requiring approval.
Clause 7 is not relevant for the present purposes.
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