| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PENFOLD and SHIRE OF EXMOUTH [2014] WASAT 23 MEMBER : MS L EDDY (MEMBER) MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 25 FEBRUARY 2014 FILE NO/S : DR 103 of 2013 BETWEEN : JAMES PENFOLD Applicant
AND
SHIRE OF EXMOUTH
Respondent
Catchwords: Town planning Development Deemed refusal to approve proposed aircraft hangar Preliminary issue Whether proposed development within existing lease area Relevance of lease area to planning merits of development application Legislation: Shire of Exmouth Town Planning Scheme No 3, cl 9.2, cl 9.2.1, Sch 7 Result: The preliminary issue is dismissed
Summary of Tribunal's decision: The proceedings involve an application for review of the respondent's deemed refusal of the applicant's development application to build a proposed aircraft hangar. The proposed building is to be built on land that is within Crown land that is reserved for the purpose of 'Aerial Landing Ground'. The applicant holds a lease over land within the Reserve.
After unsuccessful mediation, the parties agreed that the Tribunal should determine a preliminary issue, being 'whether the applicant's lease area should be the lesser or greater area as depicted on the plan prepared by Hille Thompson Delfos Surveyors & Planners Ref 54612LO1-1-0'. There is dispute between the parties as to the dimensions of the applicant's current lease area. The relevance of this dispute is that, if the lease area is the smaller area, the applicant's proposed development is proposed to be built partly outside of that area.
The Tribunal determined that the preliminary issue is not a matter that affects the planning merits of the development application and therefore the issue is not within the Tribunal's jurisdiction.
Category: B
Representation: Counsel:
Applicant : Ms C Gleeson
Respondent : Mr D Nicholson
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Adbooth Pty Ltd and City Of Perth [2006] WASAT 343
Bridle and City of Stirling [2010] WASAT 49; (2010) 71 SR (WA) 89
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71
Parker and City of South Perth [2010] WASAT 35
Springmist Pty Ltd and Shire of AugustaMargaret River [2005] WASAT 143
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 In March 2013, Mr James Penfold (applicant) applied to the Tribunal for a review of the Shire of Exmouth's (respondent) deemed refusal of a development application (Subject Application). In that application, the applicant sought permission to build an aircraft hangar (Second Hangar) located adjacent (west) to an existing aircraft hangar. The land on which the Second Hangar was proposed to be built was a part of a larger area of reserved Crown land, formally known as Reserve 32867, being Lot 73 on site on Deposited Plan 211885 (Reserve). As shown on the Certificate of Title, the Reserve is reserved for the purpose of 'Aerial Landing Ground'. 2 The matter was the subject of mediation on 6 June 2013 and on 19 June 2013 at the Tribunal without resolution. At the conclusion of the mediation, the parties agreed to an order that there should be the determination of a preliminary issue by the Tribunal. That issue, as agreed by the parties, was 'whether the applicant's lease area should be the lesser or greater area as depicted on the plan prepared by Hille Thompson Delfos Surveyors & Planners (HTD Surveyors or HTD) Ref 54612LO110'. The parties further agreed that the preliminary issue was to be determined by the same member of the Tribunal who had conducted the mediation. Orders were made by the Tribunal at a subsequent directions hearing that the preliminary issue was to be determined on the papers by the mediator and a legally qualified member of the Tribunal. 3 The parties lodged an agreed statement of facts for the purposes of determination of the preliminary issue and each party's submissions on the preliminary issue in August 2013. The respondent filed a witness statement of Mr Andrew Forte, a civil engineer and the director of Forte Airport Management, on or around 30 August 2013. The applicant filed a witness statement of Mr Gavin Cole Penfold, proprietor of Bird Eye View Ningaloo, on 19 September 2013. The parties also rely on, for the purposes of determination of the preliminary issue, an agreed bundle of documents filed on 4 December 2013. 4 These are the reasons for decision on the preliminary issue.
Background 5 Under a management order, the respondent is vested with the care, control and management of the Reserve and has the power to lease portions of the Reserve. The applicant originally sought and obtained a lease of a portion of the Reserve in 2008 for the purpose of conducting microlight flying training as a commercial operation. Some other portions of the Reserve have been leased by the respondent to parties other than the applicant. The applicant's lease area was depicted in Annexure 1 of the lease as a cross hatched area, omitting the dimensions. Also in 2008, the respondent granted planning approval for the applicant to build an aircraft hangar within the applicant's lease area. Pursuant to that planning approval, a building licence submitted by the applicant showed the proposed hangar on a dimensioned site plan, with the lease area depicted as a parallelogram with sides of 78.3 metres. The building licence for the hangar was granted on 10 November 2008. 6 In 2009, the applicant sought the approval of the respondent to extend the lease area boundaries. There is no evidence before the Tribunal as to what, if any, decision was made by the respondent in relation to that application. 7 In 2010, an agent of the respondent prepared a survey plan of the Reserve for the respondent. That plan identified buildings and infrastructure located within the Reserve, including those that had been built by the applicant, but did not depict the surveyed lease area of the various leases within the Reserve that existed at that time. The plan did show an area of shading that was referred to as the 'Building Area' that encompassed an approximate area of land around each of the leaseholders' buildings (including the applicant's building) that were then located within the Reserve. In April 2011, that plan was amended to show an amended shaded 'Building Area' around the applicant's building. 8 The applicant sought planning approval from the respondent to build further buildings within the Reserve that the respondent (in its decision) summarised as a '[h]elicopter landing site, ancillary works and office use'. The plan attached to that application depicted what was described as the 'Lease Boundary' at that time. In April 2011, the respondent approved the planning application, subject to conditions. One of those conditions required the applicant to construct all development wholly within the applicant's lease area. The same plan depicting what was described as the applicant's lease area was attached to the respondent's conditional approval of the planning application. 9 In October 2012, the applicant lodged the Subject Application for the proposed Second Hangar. The Subject Application included a plan which showed the lease area on a dimensioned site plan containing the existing buildings and the proposed Second Hangar. 10 In the course of preparing a Master Plan for the Reserve, the respondent engaged HTD Surveyors to prepare a plan of the existing leases and infrastructure within the Reserve. The survey plan prepared by HTD Surveyors depicted two variations of the applicant's lease area within the Reserve. One was a smaller scaled lease area (Smaller Lease Area) of 2,871m², which was said to be drawn by reference to the plan annexed to the lease documents. The second was a larger scaled lease area (Larger Lease Area) of 5,897m², which was based on the lease as depicted on the building site plan that the applicant had supplied to the respondent with his application for a building licence pursuant to the planning approval to build the first airplane hangar. 11 The HTD survey plan showed that some of the applicant's existing improvements are situated outside the Smaller Lease Area, although they are within the Larger Lease Area. In addition, and relevantly for these proceedings, the Second Hangar is proposed to be built in a location that is partly outside of the Smaller Lease Area but within the Larger Lease Area. 12 The respondent has adopted the position that the applicant's existing lease area is the Smaller Lease Area on the HTD survey plan. The applicant's position is that his existing lease area is the Larger Lease Area on the HTD survey plan. The applicant commissioned a report from Thompson Surveying Consultants, and their report dated 27 May 2013 supports the applicant's interpretation of the existing lease area. 13 In March 2013, the respondent adopted a Master Plan that provided a planning framework for the adjustment and rationalisation of the existing lease areas within the Reserve and the development of new lots and operational precincts within the Reserve. The respondent delegated authority to the Chief Executive Officer to negotiate variations to the lease areas with the relevant lessees in accordance with the Master Plan. The area proposed to be the new lease area granted to the applicant in the Master Plan was labelled as 'Lot 11'. The development proposed in the Subject Application would be contained within the area described as 'Lot 11' on the Master Plan.
Relevance of the identified preliminary issue to the planning merits of the development proposed in the Subject Application 14 It is apparent that the determination of the area of the applicant's existing lease is, at least potentially, of commercial relevance to the parties. However, on this application, the Tribunal is concerned only with the planning merits of the Subject Application. 15 In this case, the respondent has power to grant leases over portions of the Reserve. It has exercised that power to grant a lease to the applicant. A term of that lease provides that the lessee must not erect or construct any building in the lease area without the consent of the respondent. Separately to the respondent's permission as lessor, in order to erect or construct any building, the applicant also needs development approval from the respondent under the Shire of Exmouth Town Planning Scheme No 3 (TPS 3). 16 Clause 9.2 of TPS 3 provides that '[e]very application for planning approval shall be made in the form prescribed in Schedule 7 and shall be accompanied by such plans and other information as is required by the Scheme'. Clause 9.2.1 goes on to specify a number of things required to be submitted with a development application. The consent of the owner of the land is not one of the things specified in cl 9.2.1. However, the form prescribed in Sch 7 of TPS 3 has a space for identifying the name of the applicant and the owner, and a space for the signature of both of those people. A note underneath the space for signatures states '[b]oth signatures are required if applicant is not the owner'. It is implicit, therefore, that the owner of the land on which the development is to occur must sign the development application form. Such a requirement is consistent with the need to ensure the landowner has an opportunity to object to proposed development on land: see Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71. 17 The form submitted by the applicant when making the Subject Application specifies the owner of the land as the applicant. It appears to be signed by the applicant as 'owner'. 18 The term 'owner' is defined in TPS 3 as: owner: in relation to any land includes the Crown and every person who jointly or severally whether at law or in equity: (a) is entitled to the land for an estate in fee simple in possession; or (b) is a person to whom the Crown has lawfully contracted to grant the fee simple of the land; or (c) is a lessor or licensee from the Crown; or (d) is entitled to receive or is in receipt of, or if the land were let to a tenant, would be entitled to receive the rents and profits thereof, whether as a beneficial owner, trustee, mortgagee in possession, or otherwise. Therefore, to the extent that the Subject Application concerns development within the area of the applicant's lease, the applicant comes within the meaning of 'owner' and, as such, can make the development application without any further 'owner' signature. To the extent that the proposed development is to occur on land that is outside the area of the applicant's lease, the applicant would not come within the definition of 'owner' in TPS 3. 19 However, the Tribunal is satisfied that the respondent would come within the meaning of paragraph (d) of the definition of 'owner' in TPS 3 in relation to the Reserve. Even if that were not the case, the vesting of the Reserve in the respondent in this case provides authority for the respondent to sign a development application as an agent of the proprietor of the land: see Bridle and City of Stirling [2010] WASAT 49; (2010) 71 SR (WA) 89; Adbooth Pty Ltd and City Of Perth [2006] WASAT 343 at [52]. 20 In its submissions filed in August 2013, the respondent stated that it does not presently have any substantive objection on planning grounds to the Subject Application. It might be assumed, therefore, that if its consent were necessary, the respondent would be willing to give consent to the making of the Subject Application. If that assumption is not correct, the Tribunal has power if necessary to give owner's consent to the Subject Application: see Springmist Pty Ltd and Shire of AugustaMargaret River [2005] WASAT 143 at [17] [21]. Therefore, in this case, whether or not the Subject Applicant proposes development wholly within, or partly within and partly outside of the applicant's leave area, there is no substantive issue with the owner's consent to the Subject Application. 21 It is an established planning principle that a single development should not extend across lot boundaries: see Parker and City of South Perth [2010] WASAT 35 at [46]. In this case, the development proposed by the Subject Application is within a single lot, namely the Reserve, and does not cross any lot boundaries. Further, the respondent has stated that if the proposed development is outside of the applicant's existing lease area, it is willing to increase the lease area so as to include the proposed development. Thus, even if the Second Hangar is proposed to be built partly outside of the applicant's lease area, this will not affect the planning merits of the Subject Application.
Conclusion 22 In the circumstances of this case, the true extent of the applicant's lease area is irrelevant to the planning merits of the Subject Application. Therefore, the preliminary issue that the parties consented to having determined by the Tribunal is not a matter that is properly within the Tribunal's jurisdiction to determine.
Orders |