| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PHILLIPS and CITY OF CANNING [2014] WASAT 35 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 MARCH 2014 FILE NO/S : DR 150 of 2013 BETWEEN : SHIRLEY PHILLIPS Applicant
AND
CITY OF CANNING
Respondent
Catchwords: Town planning Development approval Preliminary issue Change of use Aged persons' dwellings Strata subdivision into three lots Special purposes development Residential zone Low density zoning Restrictions on use and restrictions on title Concessions on site area requirements by reason of special purposes development Whether lots capable of development Whether change of use permitted to grouped dwellings Residential Design Codes Whether discretion to vary minimum and average lot sized for purposes of proposed change of use Apparent exception for strata lots with access to a public road Principles of statutory interpretation of Residential Design Codes Tribunal determining that change of use not permissible given previous concessions and intent of exception to only permit anomalous lots to be developed with standard development Exception to be read purposively so as not to undermine concessionary planning framework Words and phrases: 'permanent legal access to a public road'; 'direct access to a public road' Legislation: City of Canning Town Planning Scheme No 40, cl 2.3.6.2, cl 2.3.8, cl 5.3.1, cl 5.4.1.2, Appendix 1, Table 3
Interpretation Act 1984 (WA), s 18
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes 2008
Residential Design Codes 2013, cl 1.3.1(a), cl 1.5, cl 5.1(a), cl 5.1.1 C1.4, cl 5.1.1 C1.4iii, cl 5.1.1 P1.2, cl 5.5.2 C2.4, Table 1
Residential Planning Codes 1991
State Administrative Tribunal Act 2004 (WA), s 60(2)
Strata Titles Act 1985 (WA), Sch 2 Result: Preliminary issue resolved in respondent's favour
Summary of Tribunal's decision: Approval was given in 1995 for the building of three aged persons' dwellings on the applicant's land in Rossmoyne. In 1997, approval was given for a strata subdivision of that land into three strata lots. A statutory restriction on occupation, apposite to aged persons' accommodation, was noted on the certificates of title. The restriction was, so far as is relevant, that persons over 55 years of age must reside on the strata lots.
Special concessions to site area requirements flowed from the fact that special accommodation (namely, aged persons' dwellings) was contemplated. In other circumstances, only two grouped dwellings may have been permissible on the site, given the size of the parent lot.
In 1998, approval was sought for a change in the use of one of the three aged persons' dwellings (Lot 3) from aged persons' dwelling to grouped dwelling. The application was refused by the City of Canning, but was subsequently, on appeal, approved by the then Minister for Planning. The statutory restriction on the use of the strata lots was accordingly amended so as to only apply to the remaining lots, namely Lots 1 and 2.
In 2013, the applicant proposed a change of use for Lot 1 from aged and dependent persons' dwelling to grouped dwelling. The purpose of the development application for a change of use was to allow the applicant's son (then aged 50) to move into the premises and then eventually to take over ownership of the property if the applicant were to pass away before the son reached the age of 55.
Such a change of use to Lot 1 would constitute development regulated by the City of Canning's town planning scheme and the Residential Design Codes. The City of Canning refused to give its approval to the change of use and review of that decision was sought in the Tribunal.
A preliminary issue arose concerning the proper interpretation of a restriction in the Residential Design Codes which, on its face, might prevent the change of use because of noncompliance with the minimum and average site area requirements connected with the lot's density coding. These were set out in Table 1 of the Residential Design Codes.
However, in certain circumstances, this restriction could be avoided notwithstanding that site areas were less than that required under Table 1. In such a case, the mandated area requirements could be the actual area of any 'existing lot, survey strata lot or strata lot' that had 'permanent legal access to a public road'.
The applicant argued that Lot 1 literally fell within this exception in that it was a strata lot with access to a public road via the Strata Plan's common property.
The Tribunal held that such arrangements for access might comply with the requirement for permanent legal access to a public road, given the enduring legal effect of a Strata Plan and the strata bylaws' regulation of access to common property. However, the Tribunal did not need to finally resolve that issue because of the Tribunal's conclusion on the underlying purpose of the exception and the effect that such a literal interpretation might have on other provisions of the Residential Design Codes.
The Tribunal took a purposive approach to the interpretation issue. In the Tribunal's view, the exception had no application to the case where, as here, a change in use was proposed that would annul the special restrictions placed upon the lot in a context where significant concessions had already been granted in respect of the relevant lot. The purpose of the exception was to generally permit in anomalous cases 'more or less standards, usual, normal or expected development', and no more.
The Tribunal went on to hold that the purpose of the concessionary provisions and the restrictions on occupancy in aged or dependent persons' dwellings found elsewhere in the Residential Design Codes would be significantly, and unjustifiably, undermined by the giving of a literal and expansive interpretation to the exception as the applicant had contended for.
The preliminary issue was therefore resolved in the respondent's favour.
Category: B
Representation: Counsel:
Applicant : Mr H Chew
Respondent : Mr D Nicholson
Solicitors:
Applicant : Success Legal
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Addvalue and Western Australian Planning Commission [2005] WASAT 335
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Chen v Minister for Immigration, Local Government and Ethnic Affairs (1992) 110 ALR 192
Randall and Town of Vincent [2005] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Ms Shirley Phillips (applicant) made an application to the City of Canning (respondent or City) in February 2013 for a partial change of use of certain land, described as Strata Lot 1 on Strata Plan No 33083, Lot 24 (No 16) Passmore Street, Rossmoyne (site or premises). 2 The proposed change of use category was from Aged and Dependent Persons' Dwelling to Grouped Dwelling. According to the applicant's written submissions, the purpose of the development application was to allow Ms Phillips' son (then aged 50) to move in to the premises and then eventually, to take over ownership of the property if she were to pass away before he reached the age of 55. 3 The application was refused under delegated authority by the respondent on 26 March 2013 for the following reasons: … The conversion from Aged Dependent Persons' Dwelling to Grouped Dwelling does not comply with the Performance Criteria and Acceptable Development Provisions of clause 6.1.3 of the [Residential Design Codes, (R-Codes), as then in force] as follows: a) The development does not comply with the minimum and average site area requirements for the R17.5 density code in accordance with Table 1 [of the R-Codes]; and b) The variation to the minimum and average site area requirement substantially exceeds the five per cent variation specified in the Performance Criteria (P3.1) [of the R-Codes]. 4 On 24 April 2013, the applicant made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have this decision reviewed.
The preliminary issue 5 A preliminary issue has arisen in the proceeding: whether there is discretion to approve the proposed change of use under the City of Canning Town Planning Scheme No 40 (TPS 40 or Scheme) and the Residential Design Codes 2013 (R-Codes) given that: a) clause 5.4.1.2 of the Scheme provides that the development of land for any of the residential purposes dealt with by the R-Codes 'shall conform to the provisions of' the R-Codes; and b) the site does not comply with the minimum and average site area requirement for the R17.5 density code, as stipulated in Table 1 of the R-Codes; and c) the proposed variation to the minimum and average site area requirements is 'more than [5%] less' in respect of relevant the area specified in Table 1, apparently contrary to cl 5.1.1 P1.2 of the R-Codes; and d) the existing area of the site resulted from a previous variation of minimum and average site area requirements granted under the former Residential Planning Codes 1991 on the basis of the site's use for the special purpose of Aged or Dependent Persons' Dwellings. 6 The matter originally proceeded on the basis of the Residential Design Codes 2008, as amended and as in force at the time that the respondent's decision was made (that is, March 2013). 7 Subsequently, the Tribunal invited the parties to file and exchange supplementary submissions on the effect, if any, of the new R-Codes which came into force in early August 2013. 8 The effect of the parties' supplementary submissions in relation to the new R-Codes was that notwithstanding the substantial consolidation and reworking effected by the new R-Codes, the material provisions in relation to the new R-Codes did not affect the essential arguments and reasoning previously advanced. 9 Accordingly, references in these reasons to the R-Codes should be taken to be, unless the context otherwise indicates, a reference to the provisions of the new R-Codes. 10 The preliminary issue is being determined on the documents, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
Factual background 11 To assist the Tribunal in its determination of the preliminary issue the parties have filed a statement of agreed facts and a bundle of agreed documents that together set out the factual background of the matter. The agreed statement of facts, so far as is relevant and edited in minor respects, is as follows: Development approval of three aged persons' dwellings 1. The applicant is the registered proprietor of Unit 1, 16 Passmore Street, Rossmoyne, being land more particularly described as Lot 1 on Strata Plan 33083 (Lot 1). Lot 1 originally comprised part of Lot 24 (No 16) Passmore Street, Rossmoyne (Parent Lot). 2. In 1995 the applicant, then the joint owner of the Parent Lot, applied for approval to construct 3 single-storey dwellings for aged persons on the Parent Lot. 3. At the time of the application the Parent Lot, which comprised an area of 1214m², was zoned Residential with a density of R17.5 under the City of Canning Town Planning Scheme No 40 (Scheme), which would have permitted the development of two grouped dwellings for normal residential use. 4. The application proposed the development of three dwellings on the Parent Lot on the basis of a 50% density bonus applicable to the special purpose dwellings for aged persons under cl 5.1.3 of the former Residential Planning Codes 1991. 5. The respondent approved the application for three aged persons' dwellings at its meeting on 12 September 1995. The approval granted by the City was subject to various conditions including the following condition, which sought to restrict the use of the dwellings to aged persons: '5. Prior to the issue of a Building Licence, the owners of the subject site to enter into a Legal Agreement with the Council [...] to ensure that the dwellings will be occupied by persons who have attained the age of 55 years or who are or were at the time of the initial permanent occupation of a unit in the proposed development the spouse of such a person; and this Agreement being registered as a Caveat on the Certificate of Title; or other alternative arrangements to the satisfaction of the City Planner.' Strata subdivision of Parent Lot 6. Subsequent to completion of the three aged persons' dwellings, the applicant sought approval for a strata subdivision of the Parent Lot into three strata lots. Being a strata subdivision of less than five lots, the proposed subdivision did not require approval of the Western Australian Planning Commission, in accordance with reg 15 of the Strata Titles General Regulations 1996 (WA). 7. The respondent issued a certificate of local government for the proposed strata subdivision on 6 May 1997. Strata Plan 33083 was registered on 19 August 1997. 8. The Strata Plan noted the restriction on the use of the strata lots registered under s 6(1) of the Strata Titles Act 1985 (WA), which limited use of the lots to use as a dwelling for elderly people. Change of use for Unit 3 9. In or about 1998 approval was sought for a change in the use of one of the three aged persons' dwellings (Unit 3) from aged persons' dwelling to grouped dwelling. The application was refused by the City on 17 April 1998, but was subsequently approved by the then Minister for Planning (on appeal) on 27 July 1998. 10. The s 6(1) restriction on the use of the strata lots was accordingly amended so as to only apply to Lots 1 and 2. Proposed change of use for Unit 1 11. On 25 February 2013 the City received an application for approval of a proposed change of use for Unit 1 from aged persons' to grouped dwelling. 12. The application was refused by the City under delegated authority on 26 March 2013 for the reasons stated above.
Planning framework 12 The subject land is under TPS 40 zoned Residential with a density code of R17.5. The purpose and intent of the Residential zone 'is to provide for a wide range of residential accommodation for the needs of the present and future population within an attractive and safe residential environment': cl 5.3.1 of TPS 40. 13 The two land use classes relevant to these proceeding are, as has been mentioned, Aged and Dependent Persons' Dwelling and Grouped Dwelling. For the purposes of the Scheme, both use classes have the same meaning as is given to each phrase in the R-Codes: see the referential definitions set out in Appendix 1 ('Definitions') of TPS 40. 14 'Aged and dependent persons' dwelling' is not in fact included in the definitions which appear in Appendix 1 of the R-Codes, although 'aged person' is defined there as '[a] person who is aged 55 years or over'. 'Grouped dwelling' is defined as follows in Appendix 1 of the R-Codes: 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. 15 Both use categories are designated as 'AA' uses in the Residential zone: see Table 3, the Zoning Table found in the Scheme. And, as such, in exercising discretion as to the approval or refusal of an application for development approval, regard is to be given to the provisions of cl 2.3.8 of the Scheme, that is 'Matters to be Considered when Council Exercises Discretion': see cl 2.3.6.2 of TPS 40 ('AA' Uses). 16 As has already been mentioned, cl 5.4.1.2 of the Scheme states that: Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [R-Codes] shall conform to the provisions of those Codes. 17 Table 1 of the R-Codes contains the 'General site requirements for all single houses and group dwellings; and multiple dwellings in areas coded less than R30'. Table 1 specifies the 'minimum site area per dwelling' for a single house or group dwelling with an R17.5 coding as a minimum 500m2 and an average 571m2. 18 Here, the average lot size on Strata Plan 33083 is 404.6m2 and Lot 1 is only 298m2 in area.
Applicant's submissions 19 The applicant contends that there is discretion under both the Scheme and the R-Codes to approve the development application to vary the minimum and average site area. 20 The applicant submits that as the proposed use is an 'AA' Use there is a general discretionary power, subject to the provisions of the R-Codes and a number of formal or general matters outlined in cl 2.3.8 of the Scheme, to vary the use of the property under the Scheme. 21 The applicant focusses on the point that the development application and site both appear to satisfy the deemed-to-comply provision of cl 5.1.1 C1.4iii of the R-Codes, which gives rise to a circumstance whereby a variation to the minimum and average site areas may be made. Clause 5.1.1 C1.4iii states: 22 The applicant argues that the literal and ordinary meanings of the key words found in the text of cl 5.1.1 Cl.4iii, when applied to the facts of the case, permits a variation authorising a change of use. 23 The applicant submits that orthodox principles of statutory interpretation emphasise the importance of applying the text of a provision. Thus, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, four Judges of the Court said, at [47] (internal citations omitted): This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. 24 In order to satisfy the deemed-to-comply provision (cl 5.1.1 C1.4iii), the applicant submits that the property must be an existing lot, survey lot or strata lot and have permanent legal access to a public road. The applicant highlights that it is not a requirement of this provision that the lot have 'direct access' to a public road but rather that the lot has 'permanent legal access'. 25 The Tribunal has been informed that access arrangement for Lot 1 is by way of a brick driveway over sections of both common property and a Council crossover and that driveway access to the applicant's garage, whilst over common property, is not practically shared with the access to the other two lots, as the driveway to those lots is diverted past the applicant's property. 26 Thus, the applicant contends that the site was an existing strata lot (Lot 1 on Strata Plan 33083, registered on 19 August 1997) prior to the R Codes coming into effect and at the time the development application was submitted the lot had permanent legal access to a public road, that being Passmore Street. 27 On this basis, the applicant submits that the development application satisfies the deemed-to-comply provisions of cl 5.1.1 C1.4iii of the R-Codes, thereby providing, in effect, discretion to vary the minimum and average site area requirements of the R-Codes permitting approval of the use of the site as a Grouped Dwelling.
Respondent's submissions 28 The respondent submits that the proposed application is required to comply with the R-Codes by reason of cl 5.4.1.2 of TPS 40 and that there are no relevant variations to the R-Codes made in, or by the Scheme, that apply in the present circumstances. This position is common ground. 29 As is clear from what is set out above (see 'Applicant's Submissions') the applicant has brought her case solely under C1.4iii of the R-Codes. 30 In short, the respondent contends that only cl 5.1.1 C1.4iii could, in any event, possibly apply in the circumstances of the case (in terms of the three alternatives found in cl 5.1.1 C1.4 of the R-Codes) but that C1.4iii does not apply, as Lot 1 does not have direct vehicle access to a public road, as access is only achieved via common property. 31 The respondent further argues that even if cl 5.1.1 C1.4iii could have application in a literal sense, a purposive interpretation of the R-Codes should be instead adopted, given that the R-Codes are incorporated by reference and given legal effect by cl 5.4.1.2 of TPS 40. 32 The respondent relies upon s 18 of the Interpretation Act 1984 (WA) which provides as follows: Purpose or object of written law, use of in interpretation In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. 33 The respondent also relies upon, for instance, the previous acknowledgement by the Tribunal in Randall and Town of Vincent [2005] WASAT 129 (Randall) of the importance of a purposive approach to statutory interpretation: see, for example, Randall, at [134]. 34 First, the respondent argues that the R-Codes deliberately make quite separate provisions for aged and dependent persons' dwellings and other conventional forms of residential development, such as single houses, grouped dwellings and multiple dwellings. Aged and dependent persons' dwellings are expressly identified as Special Purpose dwellings and attract concessions relating to site area and car parking requirements. 35 The respondent accordingly contends that it was never the purpose of the R-Codes to permit the development concessions afforded to aged or dependent persons' dwellings to be used (indirectly through the change of use application) as a 'back door way' of increasing density for standard housing without a 're-coding' (that is, a direct change in density controls) in respect of the relevant area. In support thereof, the respondent refers to the Explanatory Guidelines, which, at [8.2], state: … To prevent these concessions from being abused, for example as a back door way of increasing density for standard housing without re-coding an area, the concessions are subject to four constraints: • there is a limit on the size of such dwellings; • they must be purpose-designed; • there is a minimum of five dwellings in a single development; and • they are subject to a legal agreement to restrict occupancy. 36 The interpretative use of the Explanatory Guidelines is both authorised and regulated under cl 1.5 of the R-Codes. 37 Similarly, the respondent submits that the R-Codes express a clear intention to prevent a change of use of aged or dependent persons' dwellings by restricting the future use of such dwellings: cl 5.5.2 C2.4 (restrictions on occupancy in aged or dependent persons' dwellings). Any variation to minimum site area granted for an aged or dependent persons' dwelling is therefore granted on the basis that in effect the special purpose use will be maintained. 38 Secondly, as to the purpose underlying cl 5.1.1 C1.4iii of the R-Codes, the respondent submits that the variation was intended to ensure that 'undersized' lots, survey strata lots or strata lots created by a prior subdivision, were not precluded or sterilised from development by reason of the non-compliance of those lots with the minimum or average site area requirements set out in Table 1 of the R-Codes. Thus, the clause was intended to apply to undeveloped lots rather than lots that have already been developed. 39 The respondent contends that this is not a case of an 'undersized lot' resulting from a prior subdivision of land that was only capable of development pursuant to a variation under cl 5.1.1 C1.4iii. Rather, here, the strata subdivision of the Parent Lot was preceded by approval for and development of the Parent Lot for the special purpose of aged persons' dwellings. In this case, subdivision followed and was possible because of prior development approval. Clause 5.1.1 C1.4iii was intended, it was submitted, to apply to a situation where subdivision precedes development and development of the subdivided lot is not possible without a variation to the minimum site area requirement in Table 1. 40 Importantly, the respondent argues that where one concession has already been obtained, that being a variation to the minimum site area to allow aged persons' dwellings, it cannot have been intended by the drafter of the R-Codes that a further concession could be obtained simply by reason of the fact of subdivision. The respondent submits that there is no indication that this clause was intended to apply to a proposed change of use of a strata lot previously approved and developed for use as an aged or dependent persons' dwelling, as this would amount to the grant of a concession based upon the fact of strata subdivision on top of a concession based on special purpose use. 41 Finally, the respondent argues that the application of cl 5.1.1 Cl.4iii in relation to the proposed change of use would be, in any event, inconsistent with certain specific and general objectives of the R-Codes as it would: Tribunal's analysis 42 Essentially, the question before the Tribunal is whether, in the circumstances of the case, cl 5.1.1 C1.4iii of the R-Codes, on its true interpretation, provides, in effect, discretion to vary the minimum and average site area requirements of Table 1 of the R-Codes. 43 It is convenient to first deal with the requirement that there be 'permanent legal access to a public road'. The respondent argues that the standard implied is 'direct vehicle access'. Indeed, in the previous R-Codes, dating from 2002, the equivalent clause to cl 5.1.1 C1.4iii of the present R-Codes contained the expression 'direct access to a public road'. In Addvalue and Western Australian Planning Commission [2005] WASAT 335 (Addvalue) the Tribunal said, at [30]-[31]: The reference in cl 3.1.3 A3(iii) [of the R-Codes 2002, a 'predecessor' of cl 5.1.1 C1.4iii] is not merely to 'any existing lot', but is to 'any existing lot with direct access to a public road'. In each of the applications with which we are dealing, the rear lot or lots proposed do not have direct access to a public road, but rather have direct access to the common property in order to gain access to a public road[.]… [Clause] 3.1.3 A3(iii) would not apply to the proposed subdivisions because the rear lots would not have direct access to a public road. 44 However, the R-Codes were subsequently re-drafted to include a different standard - that is, '… with permanent legal access to a public road'. Whether the redrafting was in response to Addvalue is not clear. 45 'Permanent' in this context would ordinarily suggest that a situation is 'likely to continue indefinitely, that is for a substantial but undetermined period': Chen v Minister for Immigration, Local Government and Ethnic Affairs (1992) 110 ALR 192 at 194. Legal access, as well as permanency so defined, could, it seems, be satisfied by reason of the usual obligations imposed upon strata owners with respect to common property (particularly guaranteeing access to other lot holders through common property): cf the strata by-laws set out in Sch 2 of the Strata Titles Act 1985 (WA); By-law 1 ('Vehicles') and By-law 2 ('Obstruction of common property'). Here, such access directly abuts a public road. Thus, the requirement of adequate access found in cl 5.1.1 Cl.4iii might well be satisfied. 46 However, it is unnecessary to finally resolve this point, as the Tribunal is not satisfied that the applicant's circumstances otherwise attract the variation in effect permitted by cl 5.1.1 C1.4iii of the R-Codes. 47 In the Tribunal's view, cl 5.1.1 C1.4iii is neither directed, nor has application, to the case where a change in use is proposed that would annul the special restrictions placed upon the lot in a context where significant concessions have already been granted in respect of the relevant lot. Thus, a purposive approach should be adopted with respect to the interpretation of the clause. That purpose is, I think, to generally permit in anomalous cases more or less standard, usual, normal or expected development, and no more. As the Explanatory Guidelines state, at [4.5]: Previous subdivision of an area may have resulted in lots, survey strata lots and strata lots which are smaller than the minimum prescribed under a particular R-Code. Clause 5.1.1 C1.4iii recognises that despite this anomaly, the R-Codes should not restrict development of such properties for single housing, grouped dwellings or multiple dwellings. 48 Further, the purpose of the other concessionary provisions under the current and previous R-Codes (such as cl 5.5.2 C2.4 of the R-Codes and related provisions, regulating, amongst other matters, restrictions on occupancy in aged or dependent persons' dwellings) would be, as the respondent correctly submits, significantly (and unjustifiably) undermined by giving a literal and expansive interpretation to cl 5.1.1 C1.4iii, as the applicant invites the Tribunal to do.
Conclusion 49 For these reasons, the preliminary issues must be resolved in the respondent's favour.
Orders 50 The orders of the Tribunal will be: 1. The preliminary issue of whether there is, in the circumstances of the case, discretion to approve the proposed change of use under the City of Canning Town Planning Scheme No 40 and the Residential Design Codes2013 is answered as follows: 2. The proceeding is to be listed for directions on 11 April 2014. |