PEARSON & ANOR and CITY OF GOSNELLS
[2006] WASAT 228
•8 AUGUST 2006
PEARSON & ANOR and CITY OF GOSNELLS [2006] WASAT 228
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 228 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:79/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 8/08/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary issues determined as follows: 1. "No" 2. Does not arise. If it did arise, then "no" Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID AND JENNIFER OLWYN PEARSON ASHMY PTY LTD CITY OF GOSNELLS |
Catchwords: | Town planning – Development application – House to replace existing house – Applicants intend to live in existing house while replacement house is constructed and to demolish and remove existing house – Preliminary issues – Jurisdiction – Whether proposed development requires development approval under local planning scheme – Characterisation – Whether proposed development characterised as grouped dwellings or as single dwelling – Whether building under construction is a "dwelling" – Whether, if development approval is required, proposed development is capable of approval in the absence of an outline development plan |
Legislation: | City of Gosnells Town Planning Scheme No 6, cl 1.7.1, cl 4.2, cl 7.1, cl 7.1(a), cl 7.1(b), cl 7.2, cl 7.2.1, cl 7.2.2, cl 7.3.4(j), cl 9.2(b), cl 9.2(b)(i), cl 9.2(c), Pt 7 Planning and Development Act 2005 (WA), s 162, s 162(1), s 252(1), Pt 13 Residential Design Codes of Western Australia (2002), cl 1.4 State Administrative Tribunal Act 2004 (WA), s 47(1)(a) Town Planning and Development Act 1928 (WA), s 8A(1) |
Case References: | Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266 Nil |
Orders | 1. The preliminary issues identified at [11] of the Tribunal's reasons for decision dated 8 August 2006 are answered as follows:,1) "No".,2) Does not arise. If it did arise, then "no".,2. The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : PEARSON & ANOR and CITY OF GOSNELLS [2006] WASAT 228 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 8 AUGUST 2006 FILE NO/S : DR 79 of 2006 BETWEEN : DAVID AND JENNIFER OLWYN PEARSON
- ASHMY PTY LTD
Applicants
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning – Development application – House to replace existing house – Applicants intend to live in existing house while replacement house is constructed and to demolish and remove existing house – Preliminary issues – Jurisdiction – Whether proposed development requires development approval under local planning scheme – Characterisation – Whether proposed development characterised as grouped dwellings or as single dwelling – Whether building under construction is a "dwelling" – Whether, if development approval is required, proposed development is capable of approval in the absence of an outline development plan
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Legislation:
City of Gosnells Town Planning Scheme No 6, cl 1.7.1, cl 4.2, cl 7.1, cl 7.1(a), cl 7.1(b), cl 7.2, cl 7.2.1, cl 7.2.2, cl 7.3.4(j), cl 9.2(b), cl 9.2(b)(i), cl 9.2(c), Pt 7
Planning and Development Act 2005 (WA), s 162, s 162(1), s 252(1), Pt 13
Residential Design Codes of Western Australia (2002), cl 1.4
State Administrative Tribunal Act 2004 (WA), s 47(1)(a)
Town Planning and Development Act 1928 (WA), s 8A(1)
Result:
Preliminary issues determined as follows:
1. "No"
2. Does not arise. If it did arise, then "no"
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants : Mr FJ van der Kooy
Respondent : Mr T Price (public sector employee)
Solicitors:
Applicants : Minter Ellison
Respondent : N/A
Case(s) referred to in decision(s):
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266
Case(s) also cited:
Nil
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Summary of the Tribunal's decision
1 The Tribunal was asked to determine two preliminary issues in proceedings which involve review of the refusal of a development application for the construction of a new house and the demolition of an existing house. As the applicants intend to live in the existing house while the new house is under construction, the City considered that the application was for a grouped dwelling. The City also considered that the application could not be approved in the absence of an adopted Outline Development Plan.
2 The Tribunal determined that the proposed development was characterised or classified as a single house, not as a grouped dwelling, because, while under construction, the proposed building would not be a "dwelling" as defined. In consequence, the proposed development did not require development approval.
3 The Tribunal also considered that a development which requires development approval in the zone is not capable of approval in the absence of an Outline Development Plan.
Preliminary issues
4 Two preliminary issues have been identified for determination in planning review proceedings which are pending before the Tribunal. The proceedings involve an application brought by Dr and Dr Pearson and their builder, Ashmy Pty Ltd, (applicants) pursuant to s 8A(1) of the Town Planning and Development Act 1928 (WA) (see now Planning and Development Act 2005 (WA) (PD Act) s 252(1)) for review of the decision of the City of Gosnells (City) to refuse development approval in relation to Pt Lot 1104 (No 36) Lissiman Street, Gosnells (site).
5 The proposed development involves the construction of a new house on the site and the demolition of the existing house. The Pearsons intend to live in the existing house while the new house is under construction.
6 The City's sole reason for refusal of the development application is as follows:
"[T]he development constitutes a group [sic] dwelling on land zoned 'Residential Development' under Town Planning Scheme No. 6 and approval would be contrary to Clause 7.2.1
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- of the Scheme given that an adopted Outline Development Plan is not in place to guide development and subdivision."
7 The site is zoned "Residential Development" under the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme). A "Single House" is a "P" use in the "Residential Development" zone, which means that it is permitted provided the use complies with the relevant development standards and the requirements of the Scheme. Under cl 9.2(b) of TPS 6, the erection of a single house does not require development approval (which is termed "planning approval" in the Scheme). It is common ground that the proposed house complies with the relevant development standards and the requirements of the Scheme. In consequence, if the proposed development is characterised as a "Single House", it does not require development approval under the Scheme.
8 A "Grouped Dwelling" is a "D" use in the "Residential Development" zone, which means that it is not permitted unless the City has exercised its discretion by granting development approval.
9 Clause 7.2.1 of TPS 6 provides as follows:
"The Council requires an Outline Development Plan for land zoned Residential Development before recommending subdivision or issuing planning approval for development or the use of any land."
10 Although, in March and April 2003, the City advertised for public comment a draft Outline Development Plan (ODP) for the area of which the site forms part, the draft ODP has not yet been adopted under the Scheme.
11 In this context, two preliminary issues have been identified for determination, the result of which is potentially determinative of the application for review. The preliminary issues can be reformulated as follows:
1) Does the proposed development require development approval under TPS 6?
2) Is the proposed development capable of approval under TPS 6 in the absence of an ODP?
12 The Tribunal will address each preliminary issue in turn.
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Does the proposed development require development approval under TPS 6?
13 This issue turns on the proper characterisation or classification of the proposed development for the purposes of the Scheme.
14 The City submits that the proposed development is a "Grouped Dwelling", because approval of the application "will lead to two dwellings being on the lot for a period of time".
15 Although the City did not retain a legal practitioner to act on its behalf in relation to the proceedings, its position in relation to the development application is based on advice it received from McLeods Barristers and Solicitors (McLeods). A copy of McLeods' advice to the City has been provided to the Tribunal. McLeods' advice is relevantly as follows:
"It follows that the [applicants'] proposal necessarily is to construct what will be a Grouped Dwelling, at least at the time of the Council's decision. The fact that the existing dwelling is to be decommissioned and services to it disconnected before the new dwelling is made habitable does not alter that fact. It will only be when the old dwelling is demolished the new dwelling will become a single house. It follows that the possibility of an exemption from the need to obtain planning approval will only arise if and when the existing dwelling is demolished."
16 Mr FW van der Kooy, counsel for the applicants, submits that the proper characterisation or classification of the proposed development is not as a "Grouped Dwelling", but rather as a "Single House". He submits that the fact that the site would comprise a completed building and a building undergoing construction for a period of time does not alter this characterisation.
17 Clause 1.7.1 of TPS 6 has the effect that the definitions of the terms "Dwelling", "Grouped Dwelling" and "Single House" in cl 1.4 of the Residential Design Codes of Western Australia (2002) (Codes) apply for the purposes of the Scheme. The definitions of these terms are as follows:
"Dwelling
A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person,
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- a single family, or no more than six persons who do not comprise a single family."
"Grouped Dwelling
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property."
"Single House
A dwelling standing wholly on its own green title or surveystrata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property."
18 The Tribunal considers that the proposed development is properly characterised or classified as a "Single House", that is "a building … being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis … " "standing wholly on its own green title … lot" to replace an existing building of that character.
19 Although, during construction of the proposed Single House, the site would comprise that building as well as the original dwelling, the proposed development does not constitute a "Grouped Dwelling". This is because the proposed building, while under construction, would not constitute a "dwelling", that is, "a building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis … ". Although the completed building is designed or intended to be used for the purpose of human habitation, the building, while under construction, is not. By the stage that the proposed building would constitute a "dwelling", as defined, the existing dwelling would be demolished under the proposal. At any given point in time, the proposed development involves only one "dwelling" on the site. The proposed development cannot, therefore, be characterised or classified as a "Grouped Dwelling", because it does not involve "a dwelling that is one of a group of two or more dwellings on the same lot … ".
20 If the proposed building is completed, or is occupied for human habitation prior to completion, while the original dwelling remains on the site, the applicants would commit a breach of s 162 of the PD Act.
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- That section states that, where a planning scheme provides that development is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme applies unless the approval has been obtained and is in force under the planning scheme. If the proposed building is completed or occupied for human habitation while the original dwelling remains on the site, the applicants would have carried out development, namely a grouped dwelling, for which prior development approval is required under the Scheme, without having obtained that approval. The City would then be able to take both civil and criminal enforcement action against the applicants under Pt 13 of the PD Act.
21 It follows that the answer to the first preliminary issue identified at [11] above is "no". The proposed development does not require development approval under TPS 6.
Is the proposed development capable of approval in the absence of an Outline Development Plan?
22 In light of the Tribunal's answer to the first preliminary issue, the second preliminary issue does not arise for determination. However, as the City submits that the second issue is of wide significance for it and other local government authorities which administer similarly expressed local planning schemes, the Tribunal will address it.
23 In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, Mason and Wilson JJ stated, at 320, as follows:
"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole."
24 Clause 7.2.1, which is set out at [9] above, if read in isolation, clearly has the effect that a development which requires development approval under the Scheme is not capable of approval in the absence of an ODP. The clause is expressed in mandatory terms and does not contemplate any discretion.
25 However, Mr van der Kooy submits that, when cl 7.2.1 is read in the context of other provisions of the Scheme, it does not have this effect. In particular, Mr van der Kooy makes three submissions based on two other provisions of the Scheme.
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26 First, Mr van der Kooy refers to cl 7.1(a) of the Scheme. Clause 7.1 and cl 7.2 are each contained within Pt 7 of the Scheme which is entitled "Outline Development Plan". Clause 7.1 is entitled "Purpose", whereas cl 7.2 is entitled "Planning Requirements". Clause 7.1(a) provides as follows:
"To require an Outline Development Plan for areas zoned Residential Development where the Council determines there is a need for comprehensive planning prior to subdivision, development and use of land within the area covered by the plan."
27 Mr van der Kooy submits that the words used in cl 7.1(a) "imply that there is a discretion available to the Council". He submits that it is open for the City to determine that there is no need for comprehensive planning in the form of an ODP before granting approval for the proposed development.
28 Second, Mr van der Kooy refers to cl 4.2 of the Scheme which sets out the objectives of the "Residential Development" zone as follows:
"To provide for the progressive and planned development of future urban areas for residential purposes and for commercial and other uses normally associated with residential development generally in accordance with an Outline Development Plan adopted pursuant to clause 7.4." (Emphasis added.)
29 Mr van der Kooy submits that the word "generally" in cl 4.2 "implies that development of future urban areas need not always be in accordance with an outline development plan".
30 A third provision of TPS 6 is also relevant in seeking to ascertain the legislative intention of cl 7.2.1 by reference to the language of the instrument viewed as a whole. In significant contrast to the language of cl 7.2.1, which says that the City "requires" an ODP for land zoned "Residential Development" before recommending subdivision or issuing planning approval, cl 7.2.2 says that the City "may require" an ODP for land in other zones before recommending subdivision or issuing planning approval. The language of cl 7.2.2 clearly confers a direction, whereas the language of cl 7.2.1 does not.
31 When read together, cl 4.2, cl 7.1(a), cl 7.2.1 and cl 7.2.2 indicate a clear contemplation in the Scheme that land in the "Residential Development" zone requires comprehensive planning in the form of
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- an ODP so as to guide the formulation and assessment of planning applications. When the provisions are read together, it is apparent that cl 7.1(a) does not confer a discretion to be exercised by the City in the context of the assessment of individual planning applications. Rather, "the Council determines there is a need for comprehensive planning prior to subdivision, development and use of land" by the strategic planning decision to zone land as "Residential Development". Furthermore, the word "generally" in cl 4.2 does not imply that development of future urban areas need not always be in accordance with an ODP, but rather that individual planning applications must, for the most part, follow the adopted ODP, although some variation from the ODP may be acceptable. The clause contemplates that an ODP is required in the "Residential Development" zone.
32 Mr van der Kooy also emphasises the use of the word "and" in the expression "prior to subdivision, development and use of land" (emphasis added) in cl 7.1(a). Mr van der Kooy submits that the use of the conjunctive indicates that the Scheme only contemplates the need for an ODP in the case of "larger scale development which involves the creation of urban areas and requires a framework to co-ordinate zoning, commercial and residential uses".
33 The Tribunal does not accept this submission. The use of the conjunctive in the context of cl 7.1(a) indicates that none of the three types of planning applications referred to, namely subdivision, development and use, should be approved before comprehensive planning is undertaken in the form of an ODP. This is consistent with the expression of the corresponding planning requirement in cl 7.2.1 which says that the City requires an ODP before recommending subdivision or issuing planning approval for development or the use of land.
34 Finally, Mr van der Kooy submits that an interpretation of cl 7.2.1 which requires an ODP before the approval of any development application "leads to an absurd result" that even minor applications cannot be assessed and approved under the Scheme. Mr van der Kooy gives as examples a single residential development which requires variations to the Codes (and which is not, therefore, exempt from the requirement to obtain development approval: see cl 9.2(b)(i)) and the demolition of a building in a Heritage Area (which is also not exempt from the requirement to obtain development approval: see cl 9.2(c)).
35 Although the practical consequences of an interpretation are relevant in order to assess whether the interpretation accords with the legislative
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- intention, the examples provided by Mr van der Kooy do not cast doubt on the correctness of the interpretation arrived at earlier. Just as an application for a single residential development which involves variations to the Codes is considered to give rise to the need for planning assessment, so too the planning assessment should not take place in an area in which there is a need for comprehensive planning prior to development, until the comprehensive planning has taken place to guide the assessment. Similarly, just as demolition of a building in a Heritage Area is considered to give rise to the need for planning assessment, so too the assessment should not take place in an area in which there is a need for comprehensive planning prior to development, until the comprehensive planning has taken place to guide the assessment. Indeed, cl 7.3.4(j) of the Scheme provides that an ODP may include details as appropriate in relation to conservation areas and heritage places.
36 It follows that, if the second preliminary issue did arise for determination, the answer would be "no". A development on land zoned "Residential Development" which requires development approval under TPS 6 is not capable of approval in the absence of an adopted ODP under the Scheme.
Conclusion
37 The proposed development is properly characterised or classified as a "Single House" under TPS 6 and does not, therefore, require development approval under the Scheme. The development application and the purported determination of it by the City are each a nullity: WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266 at [30]. In consequence, the Tribunal does not have jurisdiction to consider the development application and the proceedings must be dismissed as misconceived under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA).
38 As the proposed development does not require development approval under TPS 6, the preliminary issue as to whether the development is capable of approval in the absence of an ODP does not arise. However, as the issue is of wide significance, the Tribunal has considered it and has determined that the effect of cl 7.2.1 of TPS 6 is that any development which requires development approval cannot be approved in the "Residential Development" zone unless an ODP has been adopted under the Scheme.
(Page 11)
Orders
39 The Tribunal makes the following orders:
1. The preliminary issues identified at [11] of the Tribunal's reasons for decision dated 8 August 2006 are answered as follows:
1) "No".
2) Does not arise. If it did arise, then "no".
2. The application for review is dismissed.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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