Ross v Western Australian Planning Commission
[2000] WASCA 164
•15 JUNE 2000
ROSS & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2000] WASCA 164
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 164 | |
| Case No: | SJA:1201/1999 | 14 FEBRUARY & 25 MAY 2000 | |
| Coram: | SCOTT J | 15/06/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | CLIVE MICHAEL ROSS JENNIFER ANNE ROSS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Building control and town planning Control and regulation of erection, construction and demolition of buildings Town planning and subdivision of land Appeal of Town Planning Appeal Tribunal Standing Appellants not the registered proprietors Memorials registered on title Notification of intending purchasers by memorial entirely appropriate No error demonstrated |
Legislation: | Strata Titles Act Town Planning and Development Act 1928 (WA), s 12A, s 27A |
Case References: | Allan v Development Allowance Authority (1999) 163 ALR 31 Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 Collector of Customs v Pressure Tankers Pty Ltd (1993) 115 ALR 1 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Lloyd v Robinson (1962) 107 CLR 142 O'Sullivan v Farrer (1989) 168 CLR 210 Proctor v Brisbane City Council (1993) 81 LGERA 398 Marford Nominees Pty Ltd v State Planning Commission, unreported; SCt of WA; Library No 960047; 1 February 1996 Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- JENNIFER ANNE ROSS
Appellants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Building control and town planning - Control and regulation of erection, construction and demolition of buildings - Town planning and subdivision of land - Appeal of Town Planning Appeal Tribunal - Standing - Appellants not the registered proprietors - Memorials registered on title - Notification of intending purchasers by memorial entirely appropriate - No error demonstrated
Legislation:
Strata Titles Act
Town Planning and Development Act 1928 (WA), s 12A, s 27A
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellants : In person
Respondent : Mr M G Lundberg & Mr M A G Jenkin
Solicitors:
Appellants : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Allan v Development Allowance Authority (1999) 163 ALR 31
Case(s) also cited:
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Collector of Customs v Pressure Tankers Pty Ltd (1993) 115 ALR 1
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Lloyd v Robinson (1962) 107 CLR 142
O'Sullivan v Farrer (1989) 168 CLR 210
Proctor v Brisbane City Council (1993) 81 LGERA 398
Marford Nominees Pty Ltd v State Planning Commission, unreported; SCt of WA; Library No 960047; 1 February 1996
Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240
(Page 3)
1 SCOTT J: This is an appeal against a decision of the Town Planning Appeal Tribunal delivered on 10 September 1999.
2 The appellants were the owners of Lots 52 and 53 Harvey Street, Burswood, in the town of Victoria Park. They amalgamated the two titles relating to each of those lots to form one title and they then registered strata plan No 37106 on the amalgamated title. Following the organisation of strata plan No 37106, four separate strata titles, issued.
3 Approval was granted to the amalgamation, which included a condition which required the appellants to grant a sewer easement of 1.4 metres in width along the full length of the rear boundary of the new lot.
4 The purpose of the easement was to protect access to a sewer main which ran along the rear boundary of the new lot. The easement provided security for servicing the main and ensured that inappropriate developments were not constructed too close to the main, so as to prevent access to it.
5 It is important to note that the appellants opposed the creation of the easement and appealed to the Town Planning Appeal Tribunal on the basis that the easement should not have been made a condition of the amalgamation.
6 The appeal to the Town Planning Appeal Tribunal was allowed and the Tribunal ordered that instead of an easement the appellant should place a memorial on the titles to indicate that the rear boundary of the lots adjoin a sewer. The Town Planning Appeal Tribunal left it to the parties to determine the wording of the memorial and granted liberty to apply in the event of there being any dispute as to the wording of the memorial.
7 It is important to note that following the decision of the Town Planning Appeal Tribunal, which was delivered on 12 July 1999, the appellants complied with the condition and a memorial was prepared, executed and registered on the titles on 15 December 1999.
8 As a result of fulfilling the requisites for the registration of the strata plan, the strata plan was registered on the amalgamated title and the four strata titles issued.
9 This appeal first came on for hearing on 14 February 2000 and to the surprise of both this Court and counsel for the respondent, the appellants indicated that they had sold all of the four strata units, so that they no
(Page 4)
- longer had any interest in the land. At that time the then owners of the strata units were not parties to these proceedings and it was not known what their attitude would be to the appeal. In addition, the court made clear to the appellants that there were difficulties with this appeal in any event, as the Commissioner of Land Titles was not a party, and that any order made on appeal would be unlikely to have any effect on the Registrar of Titles or to cause removal of the memorials.
10 In addition, it was made clear to the appellants that as a result of them selling all four units, they no longer had any interest in the land so that any decision on appeal would not affect them. The appellants, through the male appellant, accepted that as being the case (see p 18 of transcript dated 14 February 2000).
11 Having been confronted with those difficulties, the appellants maintained the view that they still wished to press the appeal, apparently on the basis that they did not want to incur the costs that may be involved in having the appeal dismissed.
12 In the course of the appeal, it was also made clear to the appellants that the views of the present lot holders would be of significance to the court and that in many respects these appeals were not only moot but defective for want of parties by reason of the fact that the existing owners were not party to the proceedings.
13 The appellants sought to overcome those difficulties firstly by obtaining affidavits from the present owners, each of whom said that they did not wish the memorials to remain, and secondly by obtaining options to repurchase two of the lots, Lot 3 and Lot 4 from the present owners.
14 By affidavit of 14 March 2000, the male appellant, Clive Michael Ross, deposed that he and his wife entered into options to repurchase those two lots and exhibited the two option agreements. Those agreements in each case reveal that the options were purchased by payment of $100 with the option to be exercised on or before 22 August 2000. In each case the purchase price was shown as $250,000 with no deposit having been paid.
15 Both the circumstances surrounding the coming into existence of the options and the terms of them point almost inevitably to the conclusion that the options were simply devices to enable the appellants to overcome the problems that were made evident to them at the hearing on 14 February 2000. In any event, it is not open for this Court to conclude that the options will be exercised. The matter falls to be judged upon the
(Page 5)
- basis that the current owners are the registered proprietors of the land. The appellants only interest in the land is as option holders with respect to two of the lots.
16 Significantly also, it is important to note that the appellants acted upon the original decision of the Town Planning Appeal Tribunal and complied with the conditions to the extent of registering memorials on each of the strata titles. That was done in order for the conditions to be fulfilled so that the strata titles would issue. The issue of the strata titles enabled the appellants to sell each of the lots concerned. Having taken all of those steps and taken advantage of the conditions that were imposed by the Town Planning Appeal Tribunal, the appellants now seek to overturn a condition of the approval by way of this appeal.
17 It is of some importance to note that had the memorial condition not been complied with, the strata titles would not have issued. The appellants therefore took advantage of the decision of the Town Planning Appeal Tribunal by providing and registering the memorial on the titles. That process cannot be undone, and the present appeal is in a very real sense quite unsatisfactory. To allow the appeal in these circumstances would have the effect of deleting a condition which was a requirement of the local authority and of the Water Corporation. The memorials, in my view, do no more than provide a mechanism for notification of intending purchasers of the existence of the sewer line so as to facilitate access to that line by the Water Authority. In addition, the memorials provide notice to any prospective purchasers that it would not be possible to build over the top of the sewer line. As such, in my view, the memorials are for the benefit of any prospective purchaser. Memorials were entirely appropriate. I do not accept the appellants contention that the memorials constitute an encumbrance which was detrimental to them.
18 It should be mentioned in passing that the reason why the Town Planning Appeal Tribunal overturned the condition requiring the imposition of an easement was that an easement could only be imposed where there was an application for subdivision, cf s 27A Town Planning and Development Act 1928 ("the Town Planning Act"). As this was an application for an amalgamation, an easement was inappropriate. The Town Planning Appeal Tribunal, however, considered that the imposition of a memorial was appropriate in all the circumstances of the case and within their power to impose. The power to require a memorial is to be found in s 12A of the Town Planning Act. A memorial may be required where the Commission considers it desirable that the owners, or prospective owners of land comprised in a scheme or proposed scheme
(Page 6)
- under the Strata Titles Act should be made aware of hazards or other serious factors affecting the use or enjoyment of that land. In my opinion, the existence of the sewer main along the boundary of the relevant lots comes within that description. The memorial advised of the existence of the sewer main so as to make prospective owners aware of the need to utilise the land in such a way as not to obstruct access to the sewer main and was entirely appropriate.
19 In dealing with the matter, in the extempore reasons of the Town Planning Appeal Tribunal, the Tribunal concluded:
"It is a reasonable requirement that a memorial on title be registered that states, the wording to the satisfaction of the Commission, that the rear boundary adjoins a sewer. Notification of this memorial should be given expressly by the Commission with its consent to the Town of Victoria Park, who can take this into account in respect of any application for planning approval for development on the land, or for a building licence in respect of any works on that land."
20 In my opinion, despite the option agreements taken out by the appellants, the appeal in this case is entirely moot. The appellants have no interest in the land apart from the options which may or may not be exercised. The conclusion is open to this Court that it is highly unlikely that the options will in fact be exercised, bearing in mind the circumstances in which they were entered into. In addition there is an issue as to whether the appellants have any standing to bring this appeal in any event: see Allan v Development Allowance Authority (1999) 163 ALR 31 per Merkle J at 42 (pars 37-39) and 45 (par 50).
21 Even if those difficulties are overcome and the appellants have standing, then in my view, their conduct in taking advantage of the condition and securing the release of the strata titles was such that the appeal is no longer appropriate. It is not possible for this Court to order the severance of the amalgamated title bearing in mind that strata titles have now issued. And in any event, the memorials, which the appellants have executed, are now registered on the titles and there is no power this Court can exercise to reverse that situation in these proceedings as presently formulated. The memorials run with the land.
22 It would be quite unconscionable for this Court to set aside the memorials in all the circumstances outlined in these reasons. To do so would leave any prospective purchasers of the lots without notice on the
(Page 7)
- titles of the existence of the sewer main which alert them to the obligations which they may have.
23 In my opinion no error has been demonstrated in the reasons of the Town Planning Appeal Tribunal and the appeal should be dismissed.
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