PROJECT DEVELOPMENT WA PTY LTD and CITY OF BAYSWATER - [2010] WASAT 41

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PROJECT DEVELOPMENT WA PTY LTD and CITY OF BAYSWATER [2010] WASAT 41

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 23 MARCH 2010

DELIVERED : 29 MARCH 2010
Edited reasons delivered orally on 23 MARCH 2010

FILE NO/S: DR 457 of 2009

BETWEEN: PROJECT DEVELOPMENT WA PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent

Catchwords:

Town planning - Preliminary issue - Whether previous development approval included liquor store - Council resolution deleted liquor store - Notice of determination did not include liquor store - Liquor store not ruled through or deleted when plans were stamped as approved by Council and issued to applicant

Legislation:

Liquor Control Act 1988 (WA), s 40
Planning and Development Act 2005 (WA), s 252(1)

Result:

Development approval does not include liquor store

Category: B

Representation:

Counsel:

Applicant: Mr E Samec (Representative)
Respondent: Mr D McLeod

Solicitors:

Applicant: Samec Planning
Respondent: McLeods

Case(s) referred to in decision(s):

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Harding and Shire of Chittering [2006] WASAT 171
Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Project Development WA Pty Ltd commenced this proceeding for review of the refusal of a development application for use of part of an approved building as a liquor store. A preliminary use was identified as to whether a previous development approval included the approval of a liquor store thereby making the current development application otiose.
The previous development application sought approval for the construction of a building and for the use of the building for fast food outlets, liquor store and local shops. When approving the previous development application, the Council of the City of Bayswater deleted 'and liquor store with drive through facilities' from the resolution of approval. The notice of determination issued by the City of Bayswater described the 'proposed development' as 'proposed fast food outlets and local shops' only. However, the City of Bayswater stamped and issued the plans that accompanied the development application as approved, without deleting the liquor store.
Following the hearing, the Tribunal gave an oral decision in which it determined that the previous development approval did not include a liquor store. It was plain from the Council's resolution that, although Project Development WA Pty Ltd sought development approval for a liquor store, that aspect of the proposed development was not approved. Furthermore, while the liquor store had not been deleted from the plans stamped as approved, the liquor store was not part of 'the development' referred to in the condition that required compliance with the approved plans.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

Project Development WA Pty Ltd (Project Development) commenced this proceeding on 30 November 2009 for review under s 252(1) of the Planning and Development Act 2005 (WA) of the decision of the City of Bayswater (City or Council) to refuse development approval for a 'bottle shop and drive through' at Shop 2, No 497 Guildford Road, Bayswater (site).
On 15 January 2010, the Tribunal listed the following preliminary issue for determination:
On the proper construction of the City's planning approval of 16 April 2009, was there approval of a liquor store in Shop 2?
The Tribunal will address this preliminary issue after recounting the agreed background facts.

Background

On 3 October 2007, the City received an MRS Form 1 and plans for the construction of a proposed tavern and showrooms, including a drive through bottle shop, on the site. On 15 November 2007, the City received a facsimile advising that the showroom component of the development would be modified to shops, to comply with the zoning of the site. On 25 March 2008, the application was presented to the Council and, at that meeting, the Council resolved that the proposed development be advertised for public comment for 21 days.
The minutes of the City's ordinary council meeting of 22 April 2008 record that Project Development sought to place the development application on hold and provide amended plans for 'a bottle shop, two shop tenancies and a stand alone Red Rooster outlet'. On 22 April 2008, the Council resolved to receive the information regarding the development of the site and for members of the community 'that have notified Council of their objections to the proposed tavern be notified by correspondence of the decision to amend the plans to incorporate of a fast food outlet'.
The proposed development was brought before Council at its ordinary meeting on 24 February 2009. The minutes of the City's ordinary council meeting of 24 February 2009 record that:
The proposal comprises the development of four (4) separate tenancies as follows:
(a) two (2) fast food outlets (drive through chicken franchise (206sqm)) and drive through coffee outlet (19sqm);
(b) liquor store (204sqm) with drive through bottle shop component (71sqm); and
(c) shop (205sqm).
The City's minutes of the ordinary meeting of 24 February 2009 describe the proposed development as follows:
Size/nature of proposed development: proposed fast food outlets and liquor store with drive through facilities and local shop.
The officers reported as follows in the City's minutes of 24 February 2009 regarding public submissions received during the advertising period in 2008:
…
(b) Enough liquor store outlets in area.
(1) The proposal for fast food outlets and liquor store with drive through facilities and local shop is considered to have merit.
…
The City's officers made the following recommendation to Council on 24 February 2009:
(1)Planning approval be granted for the construction of the proposed commercial development (fast food outlets and liquor store with drive through facilities and local shop) at Lot 101, No 497 Guildford Road, Bayswater in accordance with the revised plans dated 6 November 2008 and subject to the following planning conditions.
The recommendation then went on to list 20 conditions of development approval numbered (a) to (t). The officers' recommendation was not adopted by Council, and lapsed. An alternative motion was moved and adopted by Council as follows:
(1)Planning approval be granted for the construction of the proposed commercial development (fast food outlets and local shop) at Lot 101, No 497 Guildford Road, Bayswater in accordance with the revised plans dated 6 November 2008 and subject to the following planning conditions
...
(b) The development shall be carried out only in accordance with the terms of the application as approved herein and any approved plan including any notations in red on the approved plan.
...
(2)The applicant be advised that a Liquor Licensing outlet will be refused.
The Council's resolution on 24 February 2009 was identical to the officers' recommendation, with two exceptions. First, item 1 was changed to delete the words 'and liquor store with drive through facilities' from the approval. Second, the following item was added:
(2)The applicant be advised that a Liquor Licensing outlet will be refused.
Other than these two changes, the resolution was the same as the recommendation, including the 20 conditions numbered (a) to (t). Before the Council issued a notice of determination in relation to the development approval, the City received a written request from three councillors to rescind the planning approval of 24 February 2009. The rescission motion was put to a special Council meeting on 15 April 2009, where it was lost. As a result, the Council's substantive resolution of planning approval of 24 February 2009 took effect.
On 16 April 2009, the Council issued its notice of determination of planning approval, subject to 20 conditions. The notice of determination described the 'proposed development' as 'proposed fast food outlets and local shop', and stated that the application is 'granted subject to the following conditions'. The description of the proposed development for which approval was granted was consistent with the Council resolution of 24 February 2009. Significantly, the description of the proposed development did not include a liquor store or bottle shop and drive through facilities.
In their agreed statement of facts, the parties noted that the City's notice of determination of 16 April 2009 contained five advice notes, of which advice note 1 stated that:
(1)The applicant be advised that a Liquor Licensing outlet will be refused.
However, an advice note is not a condition of development approval: see Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98. In any case, nothing in this matter turns on the fact of this advice note. On 16 April 2009, the City also issued to Project Development the plans of the development bearing the City's planning approval stamp. The stamp, including handwritten annotations, stated as follows:
DEVELOPMENT APPLICATION APPROVED AT COUNCIL MEETING 24/2/09 SUBJECT TO THE ENDORSEMENTS HEREON AND COMPLIANCE WITH THE CONDITIONS OF APPROVAL TO COMMENCE DEVELOPMENT NUMBERED 1 TO 20 DATED 16/4/09 APPLICATION NO DA070553.
The plans stamped in this way showed Shop 2 as a 'bottle shop 204 square metres' and the adjoining area as 'drive through 71 square metres'. These depictions on the plans stamped by the City were unamended and remained the same as the plan submitted by Project Development to the City.

Was there an approval of a liquor store?

As the City correctly submitted, 'What the Council determined in dealing with the application for planning approval is the critical thing'. Although the determination of the development application was only communicated by the City to Project Development on 16 April 2009, because of the rescission motion and subsequent Council meeting, the determination itself occurred on 24 February 2009.
It is plain from the Council's resolution on 24 February 2009 that, although Project Development sought development approval for the construction of a building and for the use of designated parts of the building as a fast food chicken franchise, a drive through coffee outlet, a liquor store or bottle shop with drive through facility, and a local shop, and, although Council's officers recommended that the Council should grant development approval for the construction and for the carrying out of each of the proposed land uses, the Council granted development approval for each element of the proposal except for the use of Shop 2 as a liquor store or bottle shop with drive through facility.
The Council refused to grant development approval for that land use on the site. This is necessarily implicit in each paragraph of its resolution made on 24 February 2009. In para 1, the proposed land uses were identified as 'fast food outlets and local shop', whereas in the proposed resolution in the officers' report, the land uses were described as 'fast food outlets and liquor store with drive through facilities and local shop'. As noted earlier, para 2 of the Council's resolution stated:
The applicant be advised that a Liquor Licensing outlet will be refused.
It appears, from the use of the future tense in para 2 of the resolution, that it was intended as a reference to a future application for a certificate under s 40 of the Liquor Control Act 1988 (WA). It is implicit in the statement that the Council will not support a liquor licensing outlet on the site that the proposed use of the site as a liquor store or bottle shop and associated drive through facility was refused by the Council at its meeting on 24 February 2009. As the City submitted:
There can be no doubt as to what the Council resolved. There can be no suggestion that the Council intended to resolve in a way which involved the approval of a Liquor Licensing outlet. The words used and the deletion of the liquor store from the recommended resolution leaves no doubt.
In support of its contention that, on its proper interpretation, the City's planning approval of 16 April 2009 approved a liquor store on the site, Project Development referred in particular to, and relied upon, the terms of condition 2 of the development approval as stated in the notice of determination, which was identical to the terms of condition (b) of para 1 of the Council's resolution of 24 February 2009, and on the annotations on the approved plans 'bottle shop 204sqm' and 'drive through 71sqm'. Those annotations were not struck out or ruled through in red or any other colour on the copy of the plans stamped by the Council and provided to Project Development on 16 April 2009.
However, these aspects do not assist Project Development for three reasons. First, condition 2 requires that 'the development' shall be carried out in accordance with any approved plan. The words 'the development' in condition 2 do not include use of the site as a bottle shop or liquor store. As found earlier, it is necessarily implicit in each of the two paragraphs of the Council's resolution made on 24 February 2009 that 'the development' that it approved at that meeting did not include the liquor store or bottle shop and drive through facility. Moreover, the description of the proposed development in the notice of determination, namely, 'proposed fast food outlets and local shop', confirm that 'the development' referred to in condition 2 does not include a liquor store or bottle shop and drive through facility. While the plan stamped as approved was annotated with reference to 'bottle shop' and that reference had not been deleted in red or in any other colour on the plans issued by the City to Project Development, the 'bottle shop' use was not part of 'the development' to which condition 2 refers.
Secondly, and similarly, the bottle shop use was not part of the 'development application approved at Council meeting 24/2/09 subject to the endorsements hereon and compliance with conditions of approval to commence development numbered 1 20' referred to in the stamp on the approved plans. The liquor store or bottle shop use of the site was refused at the meeting on 24 February 2009.
Thirdly, while the plan stamped as approved included the annotations referred to earlier, those annotations were not in fact part of 'any approved plan' for the purposes of condition 2. Insofar as the plan stamped as approved contained these annotations, it was not an 'approved plan'. It appears that the annotations were not ruled through in red, or in any colour, through an administrative oversight on the part of Council staff. However, that oversight by staff could not have the legal effect of supplementing or overriding the resolution of the Council compare further Harding and Shire of Chittering [2006] WASAT 171, at [14].
Having said that, in order to avoid potential confusion, particularly if land which is subject to a development approval is sold and the purchaser or prospective purchaser has only the plan stamped as approved and not the terms of the Council resolution or the notice of determination, it is appropriate for Council's officers to carefully review plans in a situation such as this, where the Council rejects part of the officers' advice to approve one or more aspect of a development proposal, and ensure that the plan stamped as approved deletes by annotation any aspect of the applicant's proposal that is rejected by the Council.
Project Development also submitted that it is 'entitled to rely on the approved plans dated 16 April 2009 of Shop 2 as a "bottle shop 204sqm" and "drive through 71sqm" as a right in rem binding the whole world'. While it is correct that a development approval operates in rem - that is, it is not personal to the applicant for approval, but runs with the land: see Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115, at [182] neither the applicant nor anyone else can rely on the plans stamped as approved without being bound by the terms of the development approval itself and, in particular, 'the development' that was actually approved by the Council. That development did not include the liquor store or bottle shop.
Finally, Project Development submitted that if the Council wishes to reject part of a development application, it must do so in 'clear and unambiguous language' and, in particular, by a condition of approval. In the Tribunal's opinion, the Council's resolution of 24 February 2009 was clear and unambiguous in its description of the uses that were approved by the Council. The resolution was correctly understood by Council's officers in stating the description of the proposed development on the notice of determination.
A specific condition stating that the liquor store or bottle shop and associated drive through facility was not approved was not strictly required. Furthermore, while it would have been desirable for the Council's officers to have annotated the approved plans in the manner suggested by Project Development, that also was not strictly required, having regard to the terms of the Council's approval as correctly understood and reflected in the description of 'proposed development' in the notice of determination.

Conclusion

The answer to the preliminary issue is, 'On the proper construction of the City's planning approval of 16 April 2009, there was no approval of the liquor store in Shop 2', and I will make an order to that effect.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER