PITASSI and CITY OF JOONDALUP
[2011] WASAT 6
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PITASSI and CITY OF JOONDALUP [2011] WASAT 6
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 14 JANUARY 2011
FILE NO/S: DR 373 of 2010
BETWEEN: JOSEPHINE PITASSI
Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Town planning - Development application - Preliminary issue - Whether there is discretion to approve a proposed development - Applicable structure plan states that 'Tower elements with plan dimensions no greater than 6 metres by 6 metres may exceed the building height requirements ... ' - Dimensions of tower element as constructed are 6.83 metres by 7.44 metres - Scheme provision states 'Except for development in respect of which the [Residential Design Codes of Western Australia (2008)] apply ... , if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, notwithstanding that noncompliance, approve the application ... ' - Whether dimensions of tower element capable of variation under this provision
Legislation:
City of Joondalup District Planning Scheme No 2, cl 1.4(d), cl 3.12.2, cl 4.1, cl 4.2.3, cl 4.3.2, cl 4.5.1, cl 9.8.3(f)
City of Mandurah Town Planning Scheme No 3, cl 5.1.3, cl 5.3.1, Table 11
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 31(1)
Result:
There is discretion to approve the proposed development
Category: B
Representation:
Counsel:
Applicant: Mr E Samec
Respondent: Mr CA Slarke
Solicitors:
Applicant: E Samec Lawyer
Respondent: McLeods
Case(s) referred to in decision(s):
Kokshoorn and City of Mandurah [2005] WASAT 251
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms Josephine Pitassi obtained development approval from the City of Joondalup for the construction of a single house with a third level 'tower element' having plan dimensions of 6 metres by 6 metres. However, the 'tower element', as constructed, has dimensions of 6.83 metres by 7.44 metres. Ms Pitassi applied for retrospective development approval for the 'tower element' as constructed. The City of Joondalup refused to grant development approval on the basis that it does not have discretion to vary a development standard in an Agreed Structure Plan that is included in the City of Joondalup District Planning Scheme No 2 specifying the maximum plan dimensions of a 'tower element' as 6 metres by 6 metres.
The parties identified a preliminary issue as to whether there is discretion to approve the proposed development. This issue turned on whether cl 4.5.1 of the City of Joondalup District Planning Scheme No 2 enables the consent authority to vary the development standard imposing the maximum plan dimensions of 6 metres by 6 metres for a 'tower element'. Clause 4.5.1 of the Scheme states that 'Except for development in respect of which the [Residential Design Codes of Western Australia (2008)] apply … , if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, notwithstanding that noncompliance, approve the application … '. The key question for the Tribunal was whether the opening words of cl 4.5.1 preclude its application to the development standard in question.
The Tribunal determined that there is discretion to approve the proposed development. The Tribunal followed the earlier decision in Kokshoorn and City of Mandurah [2005] WASAT 251 which involved the determination of an identical preliminary issue in circumstances where there was no relevant distinction in the planning scheme provisions from the present case. Applying the reasoning in Kokshoorn and City of Mandurah, the opening words of cl 4.5.1 of the City of Joondalup District Planning Scheme No 2 refer to standards or requirements applicable to development by reason of the Residential Design Codes of Western Australia (2008) which are measured by performance criteria. Other standards or requirements, whether applying to residential development or any other development, that are prescribed not by the Codes, but by the Scheme (including an Agreed Structure Plan), are susceptible to discretion under cl 4.5.1. The reasoning in Kokshoorn and City of Mandurah was also supported by cl 4.1 of the Scheme, which says that provisions including cl 4.5.1 'shall apply to all development other than development controlled by the [Codes]'. The 'tower element' in question is not relevantly 'controlled by' the Codes, but rather, by the Agreed Structure Plan which is included in the Scheme.
The Tribunal invited the City of Joondalup to reconsider its decision and determine whether it would vary the maximum dimensions of the 'tower element'.
Preliminary issue
This proceeding involves an application for review brought by Ms Josephine Pitassi, pursuant to s 252(1) of the Planning and Development Act 2005 (WA), of the decision of the City of Joondalup (City or Council) to refuse Ms Pitassi's development application for retrospective development approval of a third level 'tower element' which forms part of Ms Pitassi's single house constructed at No 25 (Lot 377) Curacao Lane, Hillarys (site).
On 3 July 2006, the Council granted development approval under the City of Joondalup District Planning Scheme No 2 (DPS 2 or Scheme) for the construction of a single house, including a third level 'tower element' with plan dimensions of 6 metres by 6 metres, designated on the approved plans as 'games room', on the site. On 18 December 2006, the City issued a building licence for the construction of the single house with the 'tower element' and a 'roof storage' space to its rear.
Ms Pitassi constructed the single house. However, the 'tower element' does not accord with the development approval in that its dimensions are 6.83 metres by 7.44 metres. On 1 September 2010, Ms Pitassi applied for retrospective development approval under DPS 2 for the 'tower element' as constructed. On 27 October 2010, the Council refused to grant development approval for the 'tower element' for the following reasons:
1.A tower element of plan dimensions greater than 6m x 6m is not permitted under clause [6.1.3](n) of the Hillarys Structure Plan[.]
2.The City does not have the legislative authority to vary a standard as stipulated within an Agreed [Structure] Plan under the District Planning Scheme No 2.
The site is zoned Urban Development under DPS 2 and is subject to the Hillarys Structure Plan Structure Plan No 20 (HSP) which is an 'Agreed Structure Plan' for the purposes of DPS 2. Clause 1.4(d) of DPS 2 states that the Scheme includes Agreed Structure Plans. The Structure Plan Map of the HSP includes the site within the General Residential Precinct.
Clause 3.12.2 of DPS 2 states, in part, as follows:
… [N]o … development shall be commenced or carried out [in the Urban Development Zone] otherwise than in conformity with an Agreed Structure Plan.
Clause 9.8.3(f) of DPS 2 states, in part, as follows:
Any … provision, standard or requirement in [an Agreed Structure Plan] shall be given the same force and effect as if it was a provision[,] standard or requirement of this Scheme, but in the event of there being any inconsistency or conflict between any provision, requirement or standard of the Scheme and any provision[,] requirement or standard of an Agreed Structure Plan, the provision[,] requirement or standard of the Scheme shall prevail;
Clause 4.2.3 of DPS 2 states as follows:
Unless otherwise provided for in the Scheme[,] the development of land for any of the residential purposes dealt with by the [Residential Design Codes of Western Australia (2008) (Codes)] shall conform to the provisions of those Codes.
Clause 4.3.2 of DPS 2 states as follows:
In areas that are covered by an Agreed Structure Plan[,] the provisions of the [Codes] may be varied by the provisions of the Agreed Structure Plan set out under clause 9.8.3(b).
Clause 5.0 of the HSP states as follows:
Tower elements may be permitted in the General Residential and Small Lot precincts but must be approved as the subject of a development application. The size of a tower element shall be as set out in the provisions for each precinct. The application for development approval shall be accompanied by an explanation of the likely impact of the height and location of the tower element on the amenity of surrounding areas and adjacent residential lots, having particular regard to:
•overshadowing and sun shading; and
•the protection of privacy for private outdoor areas and internal spaces.
The term 'tower element' is defined in cl 2.0 of the HSP as follows:
'TOWER ELEMENT' means any building element that takes the form of an additional storey over and above the height limits that is [sic] permitted in certain precincts and is limited to:
•in the case of the additional wall height, not more than 3 metres higher than the maximum wall height; and
•in the case of the roof ridge, not greater than 3 metres higher than the maximum roof ridge height.
Clause 6.1.3 of the HSP sets out 'criteria to be satisfied' in the General Residential Precinct, including:
(m)Tower elements with plan dimensions no greater than 6 metres by 6 metres may exceed the building height requirements but air conditioners, solar panels and satellite dishes may not. A tower element must contribute to the landmark quality of the building. This can take the form of towers, roof lanterns, windows walks, lookouts[,] etc.
Clause 4.5.1 of DPS 2 states as follows:
Except for development in respect of which the [Codes] apply and the requirements set out in Clauses 3.7.3 and 3.11.5, if a development is the subject of an application for planning approval and does not comply with a standard or requirement prescribed under the Scheme, the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit.
In this context, the parties have identified the following preliminary issue for determination:
Whether there is discretion to approve the proposed development.
Parties' submissions in relation to preliminary issue
Ms Pitassi contended that the consent authority has discretion under cl 4.5.1 of DPS 2 to approve a 'tower element' with plan dimensions greater than 6 metres by 6 metres and, therefore, has discretion to approve the proposed development. Relying on the decision of the Tribunal constituted by Judge Chaney (as his Honour then was) in Kokshoorn and City of Mandurah [2005] WASAT 251 (Kokshoorn), Mr E Samec, counsel for Ms Pitassi, submitted that:
The exception of 'development in respect of which the [Codes] apply' in clause 4.5.1 [of DPS 2] merely prevents the Council from applying the discretionary powers of clause 4.5.1 to relax [Codes] requirements. This intention is clear from the fact that the discretion is already available under the Performance Criteria of the [Codes] for 'development in respect of which the [Codes] apply'.
Mr Samec submitted that cl 6.1.3(m) of the HSP is a Scheme requirement, not a Codes requirement, and that, consequently, the maximum plan dimensions of 6 metres by 6 metres in the case of 'tower elements' is amenable to variation under cl 4.5.1 of the Scheme.
Mr CA Slarke, counsel for the City, conceded that the maximum plan dimensions for 'tower elements' set out in cl 6.1.3(m) of the HSP is a 'standard or requirement prescribed under the Scheme', for the purposes of cl 4.5.1 of DPS 2. However, Mr Slarke submitted that this standard is not capable of variation pursuant to cl 4.5.1 of DPS 2, because:
(a)the development for which approval is sought is development to which the [Codes] apply; and
(b)it is the manifest intention of the HSP, when read together with the Scheme, that the limitation is not to be capable of variation.
In support of this submission, Mr Slarke noted that the 'tower element' for which development approval is sought forms part of a single house, which is development to which the Codes applies. Mr Slarke also referred to cl 4.0 of the HSP which states as follows:
Residential land within the Structure Plan area shall be developed in conformity with the provisions of the [Codes], unless otherwise provided for by specific requirements in this Structure Plan. …
Mr Slarke submitted that the HSP relevantly intends to vary the provisions of the Codes that would otherwise apply. In the General Residential Precinct of the HSP, 'the criteria set by clause 6.1.3 replace the Codes performance criteria that would otherwise apply, or add further development standards or requirements that go beyond the performance criteria of the Codes'. Mr Slarke submitted that the HSP 'makes detailed, precinct specific provision for built form requirements within one part of the Urban Development Zone designated by the Scheme'. Having established the maximum standard of plan dimensions for 'tower elements' of 6 metres by 6 metres, 'the HSP does not provide any means by which the requirements … may be varied'. Further, Mr Slarke submitted that, as, pursuant to cl 3.12.2 of DPS 2, 'no … development shall be commenced or carried out [in the Urban Development zone] otherwise than in conformity with an Agreed Structure Plan', 'as the tower element is not in conformity with the HSP, it is not capable of approval'.
Finally, Mr Slarke submitted that Kokshoorn is distinguishable from the present case 'as a consequence of the fact [that] the inter-relationship between the HSP and the Scheme is quite different to the facts of Kokshoorn'. Mr Slarke submitted that the HSP 'evinces an intention to vary the Codes in relation to the tower element in a prescriptive manner which is not capable of variation; an intention which was not replicated by the scheme provisions in Kokshoorn'.
Consideration of preliminary issue
Kokshoorn involved the determination of an identical preliminary issue to the preliminary issue identified in this case in respect of a residential development set back less than 6 metres from a canal waterway wall on land in the Port Mandurah Stage 1 area of the Canal zone under the City of Mandurah Town Planning Scheme No 3 (TPS 3). As noted by the Tribunal at [14], the 'Other Requirements' column of Table 11 of TPS 3 contained the following provision applicable to the proposed development:
No building or load bearing structure shall be closer than 6m to any waterway wall.
Engineering certification will be required for any variance to the minimum 6m setback (except for Waterside and Port Mandurah Stage 1, where no variance will be granted) to a minimum of 4 metres, with an average of 6 metres.
Clause 5.1.3 of TPS 3 was in identical terms to cl 4.2.3 of DPS 2 and cl 5.3.1 of TPS 3 was in relevantly identical terms to cl 4.5.1 of DPS 2. In particular, cl 5.3.1 of TPS 3 commenced with the words:
Except for development in respect of which the [Codes] apply under this Scheme …
The Tribunal determined that there was discretion under cl 5.3.1 of TPS 3 to vary the minimum 6 metre setback requirement and the consent authority, therefore, had discretion to approve the proposed development. The Tribunal's reasoning, at [27] [29], was as follows:
27.[The Codes] … apply to developments within the Canal zone. In my view, however, that does not prevent variation to a standard prescribed not by the [Codes], but by the Scheme. Clause 5.1.3 requires residential development dealt with by the [Codes] to conform with the provisions of those [C]odes. The [Codes] do not prescribe inflexible development standards. Although acceptable development standards are identified, standards are prescribed by performance criteria which can be met other than by meeting the identified acceptable development standards. The [Codes] contemplate a discretion on the part of the approving authority to be exercised against specific performance criteria.
28.That inherent discretion within the [Codes] explains the exception in the opening words of cl 5.3.1. It is entirely consistent with the application of the Codes to preserve the nature and extent of the discretion inherent in the Codes, and not, by a provision in a Town Planning Scheme, to provide some potentially inconsistent discretion in relation to development standards. Clause 5.3.1 is otherwise unqualified as to the extent to which the discretion applies to standards prescribed by the Scheme.
29.In this case, the Codes apply to dwellings within the Canal zone. There are, however, additional development standards prescribed by the 'Other Requirements' column of Table 11. In the context of the Scheme as a whole, my view is that the proper construction of cl 5.3.1 is that the words 'except for development in respect of which the [Codes] apply under this Scheme' is a reference to the standards applicable to a development by reason of the Codes which are measured by performance criteria. Other standards, whether applying for residential development or any other development, that are prescribed not by the [Codes], but by the Scheme itself, are susceptible [to] a discretion to vary under cl 5.3.1.
The present case is not relevantly distinguishable from Kokshoorn. While not in the form of an Agreed Structure Plan, the relevant development standard in Kokshoorn was also a prescriptive variation by the local planning scheme of a provision of the Codes. Further, as in the present case, the local planning scheme provision imposing the prescriptive development standard in Kokshoorn distinguished between different areas of the zone. Specifically, in relation to the Port Mandurah Stage 1 area, the 'Other Requirements' column of Table 11 of TPS 3 stated that 'no variance [of the minimum 6 metre setback development standard] will be granted'. There is, therefore, no relevant distinction between the planning scheme provisions in issue in Kokshoorn and in this case.
The decision in Kokshoorn is not strictly binding on the Tribunal as presently constituted. However, as the Tribunal said in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 at [31]:
For reasons of comity and consistency, a member of SAT should … generally follow a decision of another member of the Tribunal … that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499.
It was not contended on behalf of the City, nor do I consider, that the decision in Kokshoorn was 'clearly in error'. For reasons of comity and consistency, the Tribunal as presently constituted should follow the decision in Kokshoorn. Applying the reasoning in Kokshoorn, the opening words of cl 4.5.1 of DPS 2 refer to standards or requirements applicable to development by reason of the Codes which are measured by performance criteria. Other standards or requirements, whether applying to residential development or any other development, that are prescribed not by the Codes, but by the Scheme (including an Agreed Structure Plan), are susceptible to discretion under cl 4.5.1 of the Scheme.
Furthermore, the reasoning in Kokshoorn is supported by cl 4.1 of DPS 2, which states, in part, as follows:
The development requirements or standards specified in clauses 4.5 and 4.7 to 4.12 inclusive shall apply to all development other than development controlled by the [Codes].
The variation provision in cl 4.5.1 of the Scheme is not a 'development requirement or standard', but rather, confers discretion in relation to development requirements and standards. However, cl 4.5.1 forms part of the provisions referred to in cl 4.1 of DPS 2. While, as was the case in Kokshoorn, the provisions of the Codes apply to development of the site (unless varied by or under the local planning scheme), the development in question, namely, the 'tower element', is not relevantly 'controlled by the [Codes]'. Rather, the 'tower element' is relevantly 'controlled by' the HSP, particularly cl 6.1.3(m) of the HSP, which forms part of and is a standard or requirement prescribed under the Scheme. Clause 4.1 of DPS 2 therefore provides textual support for the determination that there is discretion, under cl 4.5.1 of DPS 2, to vary a provision relevantly 'controlling' residential development that is prescribed by the Scheme, rather than by the Codes.
Finally, cl 3.12.2 of DPS 2 does not require a different result. While, under cl 3.12.2, 'no … development shall be commenced or carried out otherwise than in conformity with an Agreed Structure Plan', as there is discretion, under cl 4.5.1 of DPS 2, to vary the maximum plan dimensions of 6 metres by 6 metres prescribed in cl 6.1.3(m) of the HSP, if the consent authority varies this development standard and approves a development involving greater dimensions, then the development would be in conformity with the HSP.
Conclusion
The consent authority has discretion, under cl 4.5.1 of DPS 2, to vary the maximum plan dimensions of 6 metres by 6 metres in respect of a third level 'tower element' prescribed by cl 6.1.3(m) of the HSP. Consequently, there is discretion to approve the proposed development.
At the first directions hearing, the parties agreed that, if the preliminary issue is answered in the affirmative, then the City should be invited by the Tribunal to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), so that it can consider whether to exercise the discretion available under cl 4.5.1 of the Scheme. Given that the development application was refused by the City on the basis that there is no discretion to approve it, it is appropriate for the City to be invited to reconsider its decision and determine whether it would vary the maximum dimensions of the 'tower element' under cl 6.1.3(m) of the HSP in the circumstances of this case.
Orders
1.The preliminary issue is answered as follows:
There is discretion to approve the proposed development.
2.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision by 23 February 2011.
3.The proceeding is adjourned to a directions hearing at 11 am on 25 February 2011 in order to await the reconsideration.
I certify that this and the preceding [34] 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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