Settlers Holdings Pty Ltd v Coles Myer Property Developments Pty Ltd

[2000] WASCA 147

SETTLERS HOLDINGS PTY LTD -v- COLES MYER PROPERTY DEVELOPMENTS PTY LTD & ANOR [2000] WASCA 147

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 147
Court:	THE FULL COURT (WA)
Case No:	SJA:1104/1999	Heard:	9 MARCH 2000
Coram:	KENNEDY J PIDGEON J IPP J	Delivered:	1/06/00
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	SETTLERS HOLDINGS PTY LTD COLES MYER PROPERTY DEVELOPMENTS PTY LTD SHIRE OF AUGUSTA MARGARET RIVER
Catchwords:	Town planning Town planning scheme Application for development Discretion to grant development approval despite standard or requirement prescribed by the scheme not being met Requirement of scheme for 197 parking bays Council giving approval in principle only to development Appeal to Town Planning Appeal Tribunal Tribunal allowing appeal and modifying requirement for parking bays Whether permissible under the scheme
Legislation:	Town Planning and Development Act 1928 s 54B(2) Land Administration Act 1997 s 58
Case References:	Cloverdale v Charlton (1878) 14 QBD 104 Appin Investments Pty Ltd v Western Australian Planning Commmission; Town Planning Appeal Tribunal (WA); Appeal 55/1997; 1 May 1998 Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297 Bathurst City Council v PWC Properties Pty Ltd (1998) 157 ALR 414 City of Unley v Claude Neon Ltd (1983) 49 LGRA 65 Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 Commissioner of Taxation v Cooper (1991) 29 FCR 177 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 Eastern Waste Management Authority Inc v City of Tea Tree Gully (1996) 92 LGERA 1 Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28 Friends of Pryor Park Inc v Ryde City Council (1996) 91 LGERA 302 Hill v State Planning Commission (1994) 10 SR (WA) 354 Leichhardt Municipal Council v Minister Administering the Environmental Planning and Assessment Act 1979 (1992) 77 LGRA 64 Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Mabo v Queensland (No 2) (1992) 175 CLR 1 Packham v Minister for the Environment (1993) 31 NSWLR 65 Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165 Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 Randwick Corporation v Rutledge (1959) 102 CLR 54 Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corporation (No 2) (1980) 44 FLR 455 Remove All Rubbish Pty Ltd v The Corporation of the City of Salisbury (1989) 51 SASR 26 Scott Pools Pty Ltd v City of Salisbury (1979) 42 LGRA 366 Scott v Wollongong City Council (1992) 75 LGRA 112 Storey v North Sydney Municipal Council (1970) 123 CLR 574 Tosich Construction Pty Ltd (in liq) v Tosich (1997) 78 FCR 363 Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19 Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SETTLERS HOLDINGS PTY LTD -v- COLES MYER PROPERTY DEVELOPMENTS PTY LTD & ANOR [2000] WASCA 147 CORAM : KENNEDY J

PIDGEON J
IPP J

HEARD : 9 MARCH 2000 DELIVERED : 1 JUNE 2000 FILE NO/S : SJA 1104 of 1999 BETWEEN : SETTLERS HOLDINGS PTY LTD

Appellant

AND

COLES MYER PROPERTY DEVELOPMENTS PTY LTD
First Respondent

SHIRE OF AUGUSTA MARGARET RIVER
Second Respondent

Catchwords:

Town planning - Town planning scheme - Application for development - Discretion to grant development approval despite standard or requirement prescribed by the scheme not being met - Requirement of scheme for 197 parking bays - Council giving approval in principle only to development - Appeal to Town Planning Appeal Tribunal - Tribunal allowing appeal and modifying requirement for parking bays - Whether permissible under the scheme

(Page 2)

Legislation:

Town Planning and Development Act 1928 s 54B(2)

Land Administration Act 1997 s 58

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : Mr C B Edmonds & Mr R E Sandover
First Respondent : Mr M L Barker QC & Mr A J Carr
Second Respondent : Mr M J Buss QC & Mr M J Flint

Solicitors:

Appellant : Jackson McDonald
First Respondent : Freehill Hollingdale & Page
Second Respondent : Phillips Fox

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

Cloverdale v Charlton (1878) 14 QBD 104

Case(s) also cited:

Appin Investments Pty Ltd v Western Australian Planning Commmission; Town Planning Appeal Tribunal (WA); Appeal 55/1997; 1 May 1998
Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297
Bathurst City Council v PWC Properties Pty Ltd (1998) 157 ALR 414
City of Unley v Claude Neon Ltd (1983) 49 LGRA 65
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Commissioner of Taxation v Cooper (1991) 29 FCR 177
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5
Eastern Waste Management Authority Inc v City of Tea Tree Gully (1996) 92 LGERA 1


(Page 3)

Federal Commissioner of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd (1972) 128 CLR 28
Friends of Pryor Park Inc v Ryde City Council (1996) 91 LGERA 302
Hill v State Planning Commission (1994) 10 SR (WA) 354
Leichhardt Municipal Council v Minister Administering the Environmental Planning and Assessment Act 1979 (1992) 77 LGRA 64
Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Mabo v Queensland (No 2) (1992) 175 CLR 1
Packham v Minister for the Environment (1993) 31 NSWLR 65
Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165
Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13
Randwick Corporation v Rutledge (1959) 102 CLR 54
Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Live-stock Corporation (No 2) (1980) 44 FLR 455
Remove All Rubbish Pty Ltd v The Corporation of the City of Salisbury (1989) 51 SASR 26
Scott Pools Pty Ltd v City of Salisbury (1979) 42 LGRA 366
Scott v Wollongong City Council (1992) 75 LGRA 112
Storey v North Sydney Municipal Council (1970) 123 CLR 574
Tosich Construction Pty Ltd (in liq) v Tosich (1997) 78 FCR 363
Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710

(Page 4)

1 KENNEDY J: The facts in this matter are set out in the reasons to be published by Pidgeon J. There is no need for me to repeat those facts in full.

2 The Council of the Shire of Augusta-Margaret River, by its Town Planning Scheme No 17, has established the requirements for the development of land within the township of Margaret River. By cl 5.1.1 of the Scheme, subject to an exception which is not presently relevant, there is a prohibition against a person commencing or carrying out the development of land zoned under the scheme without first having applied for, and obtained, the planning consent of the Council. The land the subject of the application under the Scheme for approval of development in this case is located within the Town Centre Zone of the township

3 The first respondent desires to develop a shopping centre in the township of Margaret River. The Use and Development Class described as "shop" within the Town Centre is given the symbol AA which means that the Council may, at its discretion, permit that use under Table 1 of the Scheme.

4 Table 2 of the Scheme prescribes as the minimum carpark requirement for a shopping development one space per 15 square metres of Gross Leaseable Area. The proposed shopping centre, on this basis, was required to provide 197 parking bays.

5 Clause 5.2 of the Scheme, which finds its place in "Part V : Development Requirements", confers a discretion upon the Council to waive development standards or requirements in the following terms:

"If a development, other than a residential development, the subject of an application for planning consent, does not comply with a standard or requirement prescribed by the scheme with respect to that development the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks appropriate. The power conferred by this clause may only be exercised if the Council is satisfied that:

(a) Approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;

(Page 5)

(b) The non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality; and

(c) The spirit and purpose of the requirements or standards will not be unreasonably departed from."

6 By cl 5.16.1, which is headed "Car-Parking Requirements", it is provided as follows:

"No person or organisation shall develop or use land or erect, use or adapt any building, for a purpose indicated in Table No. 1 unless car parking spaces of the number specified in that Table are provided and such spaces are constructed and maintained in accordance with the provisions of this scheme."

7 Clause 5.16.4, which is headed "Variations to Provision of Parking Bays", provides as follows:

"Council may reduce the number of parking bays to be provided if such reduction results in the preservation of a landscape feature, however, under no circumstances shall the reduction in the number of parking bays be more than ten per cent (10%) of the total required under the specifications of Table No. [2]."

8 By clause 5.16.8, which is headed "Cash in Lieu of Car Parking", it is provided as follows:

"Where the Council so decides, it may accept cash payments in lieu of the provision of parking spaces but only subject to the following requirements:

(a) The cash-in-lieu payment shall not be less than the estimated cost to the owner or developer of providing and constructing the parking spaces required by the scheme, plus the value, as estimated by Council of that area of the land which would have been occupied by the parking spaces.

(b) Payments made under this clause shall be paid into a parking fund to be used for the provision of public car parking facilities. The Council may use this fund to provide public parking facilities anywhere within

(Page 6)

reasonable proximity to the subject land in respect of which a cash-in-lieu arrangement is made."

9 Clause 5.16.9 provides as follows:

"Where an appropriate parking area has been provided to a level commensurate with the approved development and an application for planning consent is lodged with Council to change a use within the development to one which generates the need for additional parking, the Council shall either:

(a) Accept a cash-in-lieu of parking payment in the event that additional parking cannot be provided on site, or

(b) Require the provision of additional parking either on site or in a position nearby acceptable to Council."

10 The Scheme clearly envisaged the establishment of a supermarket based shopping centre in the Fearn Avenue area of the Town Centre and it is noted that cl 5.2.1 of the Town Planning Scheme No 17 Scheme Report refers to the proposed Strategy for the consolidation of the Fearn Avenue lots into a large holding in association with land fronting Bussell Highway suitable for shopping centre development purposes. That consolidation was envisaged as also including the Fearn Avenue Road Reserve. The Scheme Report went on to say:

"If mechanisms can be offered which result in the Road Reserve being provided to a developer at a nominal price, this in itself may be sufficient incentive to bring forward the prospects of an early consolidation."

11 Under cl 5.2.8 of the Scheme Report, it is said:

"Traditionally, the retail precinct has been served by on-street parking along Bussell Highway.

Future commercial development on a consolidated site in the Fearn Avenue area will be required to provide parking areas in accordance with the scheme's development requirements. New commercial development on lots along the eastern portion of Bussell Highway will also be required to provide parking however access will be from the rear right-of-way. In time, the integration of these parking areas should result in reasonably accessible alternatives being available to on-street parking in

(Page 7)

Bussell Highway. Access from Bussell Highway across the footpath to parking areas will not be supported by Council in accordance with the recommendations of the Main Street Improvement Plan."

12 On 31 July 1998, the first respondent lodged with the second respondent an application for consent to commence development. The application was for the proposed construction of a supermarket, together with five specialty shops. The approximate cost of the proposed development was said to be $3.5 million. At its meeting on 22 October 1998, the Council resolved to support the first respondent's application in the following terms:

"1. That the Council, in principle, supports the Coles Supermarket and specialty shops proposal that is detailed in this report subject to:

a) Standard Conditions attached as Schedule A to this report.

b) The provision of 163 carparking spaces on:


Lots 4, 5 and 6 Fearn Avenue and Bussell Highway, Reserve 36720 Fearn Avenue Road Reserve and portion of Charles West Avenue adjacent to Reserve 40709

subject to any minor variations due to later detailed design considerations;


c) The relocation and redevelopment of the existing toilet facility incorporating a baby's changeroom to that area of the closed portion of the Charles West Avenue Reserve;

d) The construction of bus bays as referred to in this report.


2 That pursuant to the provisions of Clause 8.8 of the Shire of Augusta-Margaret River Town Planning Scheme No. 17, determination of the Coles Supermarket Proposal to (sic) the Chief Executive Officer subject to the following:

(Page 8)

c) The requirements contained in Item 1 of this resolution;

d) The imposition of appropriate cash-in-lieu conditions in the event that no agreement for the provision of car parking can be attained."

13 The resolution not amounting to an approval of the application, there was deemed to be a refusal by the second respondent of the application, and an appeal was duly instituted by notice dated 27 November 1998. The appeal came on for hearing before the Town Planning Appeal Tribunal which, on 17 May 1999, upheld the appeal and granted the application on the conditions which were set out in the first respondent's "Proposed Conditions of Approval". It would seem that these conditions had been the subject of discussion with Council officers.

14 The special conditions which are presently relevant are Conditions 44 and 45. They were as follows:

"44. The developer to provide and construct a total of 129 car parking bays generally in accordance with the Site Plan which includes a schedule of parking being -

44.1 45 car bays on Lots 4, 5 and 6 Fearn Avenue and Bussell Highway;

44.2 71 car bays on Reserve 36720 (which includes the redevelopment of the existing 18 car bays);

44.3 13 on Fearn Avenue Road Reserve.


45. Subject to the closure and appropriate reservation of a portion of Charles West Avenue by the Council in accordance with the Council's resolution dated 28 January 1999, the Developer to construct 22 car bays, three bus bays, an ablution/amenity block and a parent/child-room facility on that portion of Charles West Avenue, generally in accordance with Site Plan and Schedule of Parking and the Shires construction and engineering specifications."

15 At first sight, the power given to the Council to waive development standards and requirements is very wide indeed; but it must be appreciated that the limitations imposed by par (a), par (b) and par (c) of cl 5.2 do

(Page 9)

impose significant constraints upon the Council. The discretion is not conferred upon the Council in absolute terms.

16 Clause 5.7 of the Scheme is concerned with development proposals in the Town Centre Zone. Clause 5.7.4 provides:

"Notwithstanding the requirements of Table No 1, Council may vary plot ratio and setback requirements where, due to particular site and design considerations, it deems appropriate to do so providing such variation is not in conflict with the strategies outlined in clause 5.7.1."

That would appear to be a special power given to the Council which may be exercised without the Council's being satisfied as to the matters set out in par (a), par (b) and par (c) of cl 5.2.

17 Car parking requirements are dealt with under cl 5.16. Clause 5.16.1, unlike cl 5.2, does not refer to development approvals. It is directed to persons and organisations who develop or use land, or erect, use or adapt any building, for a purpose indicated in Table No 2 (the reference to Table No 1 in this clause as in some other clauses in the gazetted scheme is clearly erroneous) requiring them to provide car parking spaces of the number specified in that table. It is, in my opinion, significant that the reference in cl 5.16.1 is to the requirements of the Table and not to the requirements of the Scheme, which could, conceivably, have accommodated a decision of the Council under cl 5.2 to approve an application for development notwithstanding its non-compliance with the parking requirements in Table No 2. Nevertheless, cl 5.2 does not, in terms, reduce any standard or requirement prescribed by the Scheme. It merely confers upon the Council the power to approve a development notwithstanding its non-compliance with a standard or requirement prescribed by the Scheme. I do not consider that the Council has the power under that clause to override the prohibition contained in cl 5.16.1.

18 Clause 5.16.4 confers upon the Council the power to reduce the number of parking bays required by Table 2 for the particular purpose of preserving a landscape feature; but it imposes a limit of 10 per cent on any such reduction. The limitations imposed by sub-pars (a), (b) and (c) are not incorporated into cl 5.16.4. But if those sub-paragraphs are satisfied, on the respondent's argument there would be nothing to prevent the Council from reducing the required number of parking bays well beyond the limit of 10 per cent.

(Page 10)

19 Clause 5.16.8 provides for cash-in-lieu of car parking. It requires that the cash-in-lieu payment shall not be less than the estimated cost to the owner or developer of providing and constructing the parking spaces required by the Scheme, plus the value as estimated by the Council of that area of land which would have been occupied by the parking spaces. Unlike cl 5.16.1, the reference in cl 5.16.8 is to the requirements of the Scheme. It should be added that cl 5.16.8 contains another difficulty insofar as, unless it is read down, the cash-in-lieu payment is, on its face, required to be not less than the estimated cost to the owner or development of providing and constructing all of the parking spaces required by the Scheme. It is most unlikely that this was intended.

20 In the circumstances, I would allow the appeal on the basis that neither the Council nor the Tribunal had the power under the Scheme to reduce the number of car parking spaces required under Table No 2. I would set aside the decision of the Town Planning Appeal Tribunal.

21 PIDGEON J: The question which has arisen in this appeal is whether a Town Planning Scheme applying to the Margaret River townsite empowers the Council of the Shire, when approving a shopping centre development, to reduce the number of car parking bays specified by the Scheme.

22 The circumstances in which the question has arisen are that a developer applied to the Shire for approval for a shopping centre development on land on the western side of Bussell Highway in the town centre of Margaret River. The application is governed by Town Planning Scheme No 17. The Scheme required there to be 197 car parking bays. The developer did not have sufficient land available for this number of bays. There was, however, adjacent to the development a reserve vested in the Shire for the purpose of a "vehicle park" and the Shire was prepared to make this available to the developers for extra parking. To enable this reserve to be part of the land the subject of the development, the Shire joined in the application. There was accordingly before the Council of the Shire a joint application by the developers and the Shire. The Council passed a resolution stating that it supported the development in principle subject to some standard conditions, and to the provision of 163 car parking bays. Some of these were to be provided on the developer's land, some on the Shire's reserve, some on the street and the remainder on portion of a street which the Shire had taken preliminary steps to request the Minister for Lands to close. The 163 car parking spaces still fell short

(Page 11)

of the 197 required by the Scheme. As the Shire did no more than approve the development in principle, the developers took the view that this was a deemed refusal and appealed to the Town Planning Appeal Tribunal. The parties to the hearing before the Tribunal were the developer, the Shire and the appellant, who appeared as an objector.

23 The Tribunal (Messrs P McGowan, C Porter and E McKinnon) allowed the appeal and ordered that the developer's application be granted on conditions set out by the Tribunal. The conditions relevant to the appeal before this court are that the developer was to provide and construct a total of 129 car parking bays. Of these bays, 45 were on the developer's land, 71 bays were on the Shire's reserve and 13 bays were kerbside parking in the street adjacent to the development. There was a further condition which provided that subject to portion of the street which the Shire had taken steps to close being closed and the land being available to the Shire, the developer was to construct a further 22 parking bays on that closed street. This street (Charles West Avenue) was adjacent to the Shire's reserve and was the subject of the closure application to which I earlier referred. The Tribunal found that the number of bays required under the Scheme was the number I first mentioned, namely 197. It authorised a reduction in that number for reasons to which I shall later refer. The appellant is appealing to this Court in respect of the power to order a reduction to this extent.

Amendment to the grounds of appeal

24 The court reserved the question as to whether the appellant should be allowed to amend its grounds of appeal. It was submitted that some of the matters raised by the amendments did not involve a question of law and there were some matters possibly not argued before the Tribunal. I am satisfied that leave should be granted to amend as the respondents have not been prejudiced from arguing the grounds. If any new ground does not involve a question of law, that would be a matter to consider in not allowing it. It would be a matter for this Court to consider the effect of any ground with merit that was not raised before the Tribunal.

25 The grounds as amended were, in the main, argued in full on behalf of the appellant. Where not argued, the appellant relied on its written submissions. It was not possible to hear counsel for the respondents on the question of all matters raised and I am satisfied that counsel do not need to be called upon to address on those matters on which they have not addressed.

(Page 12)

Whether there is a general power to reduce parking bays (Cl 5.2 of the Scheme) (Ground 1)

26 The first thrust of ground 1 of the appeal is that the Tribunal did not have power to reduce the parking bays to the extent it did. It is accepted in this appeal that if the Council of the Shire had power, then the Tribunal, on the hearing of the appeal, could exercise that power provided it was satisfied it was proper to do so and that the conditions governing the exercise of the power were established on the evidence. There are three clauses of the Scheme which have a bearing on the possible power. The first is cl 5.2 (AB634) which reads:

"5.2 Discretion to Modify Development Standards:

If a development, other than a residential development, the subject of an application for planning consent, does not comply with a standard or requirement prescribed by the Scheme with respect to that development the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks appropriate. The power conferred by this clause may only be exercised if the Council is satisfied that:

(a) Approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;

(b) The non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality; and

(c) The spirit and purpose of the requirements or standards will not be unreasonably departed from."

27 The next clause is cl 5.16.4 which gives a specific power in limited circumstances to reduce the parking bay requirement by no more than 10 per cent. One of the arguments on behalf of the appellant is that the existence of this clause would prevent the operation of any general power that might be contained in the clause I have already set out. The particular clause reads: (AB638)

"5.16.4 Variation to Provision of Parking Bays

(Page 13)

Council may reduce the number of parking bays to be provided if such reduction results in the preservation of a landscape feature, however, under no circumstances shall the reduction in the number of parking bays be more than ten per cent (10%) of the total required under the specifications of Table No 1."

28 Some of the submissions make reference to another clause dealing with Cash-in-Lieu of car parking which the appellant claims affects the exercise of power under cl 5.2. I shall refer both to this third clause and the arguments relating to this at a later stage.

29 The first and most important question to consider is whether or not cl 5.2 gives power to grant approval when there is non-compliance with requirements to provide car parking bays. It is submitted that under the Scheme the question of car parking is dealt exclusively under cl 5.16 which commences with the heading "Car Parking". The first subclause, cl 5.16.1 provides that no developer shall develop land unless there are car parking spaces of the number specified in Table No 1. Clause 5.16.4, as I mentioned, gives authority to make a variation up to 10 per cent in the circumstances specified. The submission is that any power to authorise a reduction must be found within that part of the Scheme relating to car parking, namely cl 5.16, and it was not intended that cl 5.2 should apply.

30 Clause 5.2 is expressed very widely and is contained in a part of the Scheme dealing with general matters relating to development. It is in Part 5 headed "Development Requirements" and cl 5.1 is the heading of the section namely "Development of Land". Clause 5.2 refers to circumstances where a development does not comply with a standard requirement prescribed by the Scheme and this in itself is referring to the Scheme generally. In my view it is intended to refer to any standard or requirement of the Scheme, no matter where it appears, provided that there is not an intention in a particular circumstance to exclude it. It is an important submission on behalf of the appellant that there is such an intention insofar as it relates to parking as it is submitted that the more particular power under cl 5.16.4 would exclude the operation of the general power under cl 5.2. In particular, it is submitted, that the words appearing in cl 5.16.4, "under no circumstances shall the reduction in the number of parking bays be more than 10 per cent of the total required" applies to the whole Scheme and prevents any reduction beyond 10 per cent.

31 Clause 5.2, as I mentioned, is expressed very widely and there would be no question in my mind that if cl 5.16.4 did not exist, then the Council

(Page 14)

would have power to reduce car parking bays under cl 5.2 if it were satisfied that the matters referred to in the three sub-clauses were established. It becomes necessary, therefore, to examine the effect of cl 5.16.4. The clause is contained in that part of the Scheme providing for car parking requirements and which commences with cl 5.16.1 which refers to a table as to how the number of bays is to be calculated. The question is, therefore, whether the more limited power under cl 5.16.4 would exclude the operation of this general power. This is a matter of construction by considering the whole Scheme and the operation of the particular clause in question. Clause 5.16.4 is of very limited operation and is intended to do no more than accommodate the possibility of there being a landscape feature which ought not to be removed for the sake of carparking. If there is such a feature, there is authority to reduce the car bays by up to 10%. In this situation a council could exercise its limited power to reduce parking bays by no more than 10% without giving consideration to the matters referred to in (a), (b) and (c) of cl 5.2. There could be, on the other hand, circumstances independently of a landscape feature that may call for a reduction in the parking bays. I would see cl 5.2 as being intended to give a Council power in these circumstances. I do not consider it was intended that cl 5.16.2 would exclude the operation of cl 5.2.

32 I consider that the phrase, "Under no circumstances shall the reduction in the number of car parking bays be more than 10 per cent" is intended to refer to the reduction made under cl 5.16.4 and not to refer to the Scheme generally. The operative verb in cl 5.16.4 is the verb "reduce". The prohibition in the sentence under consideration is a prohibition against "reduction". This noun is intended to refer to the consequences of the Council exercising its power to "reduce" given by that particular clause. This, in my opinion, is strengthened by the use of the definite article before the word "reduction". I consider, therefore that the prohibition is intended to be confined to cl 5.16.4.

Cash-in-Lieu of Car Parking and other requirements under cl 5.2

33 The next aspect of ground 1 is the claim that if the Tribunal had power to approve the lesser number of parking bays, then it wrongly held that there was no unreasonable departure from the spirit and purpose of the requirements of the Scheme or of its standards. Sub-clause (c) of cl 5.2 requires the Council, and in this case the Tribunal, to be satisfied that the spirit and purpose of the requirement or standards will not be unreasonably departed from. The first particular in this area which I shall

(Page 15)

consider is a claim that the failure of the Tribunal to exercise powers it had of requiring the developer to make a cash in lieu payment for car parking resulted in the conditions referred to in sub-clauses (a), (b) and (c) of Cl 5.2 not being satisfied.

34 The clause giving the Council this power reads:

"5.16.8 Cash-in-Lieu of Car Parking:

Where the Council so decides, it may accept cash payments in lieu of the provision of parking spaces but only subject to the following requirements:

(a) The cash-in-lieu payment shall not be less than the estimated cost to the owner or developer of providing and constructing the parking spaces required by the Scheme plus the value, as estimated by Council of that area of the land which would have been occupied by the parking spaces.

(b) Payments made under this clause shall be paid into a parking fund to be used for the provision of public car parking facilities. The Council may use this fund to provide public parking facilities anywhere within reasonable proximity to the subject land in respect of which a cash-in-lieu arrangement is made."

35 The Tribunal gave consideration as to whether it should exercise its power to request cash-in-lieu of car parking. The Tribunal, in giving its reasons for not exercising the power, referred to the fact that, on some of the evidence before it, the payment that would be required would be approximately $1.4 million. The approximate cost of the development itself was $3.5m. The Tribunal said that it must be remembered that all works in relation to the provision of car parking were to be carried out by the developer at its own expense. It said that the developer was also required, again at its own expense, to demolish the existing public toilet facilities and effect the construction of replacement facilities on a portion of Charles West Avenue. It was also required to construct some new bus bays. The Tribunal considered these were matters that could be weighed up when deciding whether or not to order a cash payment. The Tribunal when considering both the question of not exercising its cash-in-lieu power and in considering whether the other matters referred to in sub clauses (a), (b) and (c) had been established expressed the view that the undisputed evidence was that the proposed development was consistent

(Page 16)

with the planning strategies and objectives of the Shire for the benefit of the community, and in particular for the benefit of the township. It did this after considering the evidence under a separate heading relating to each sub-clause. That development would not in fact be as great as those set out in the Scheme.

36 The reason why the prescribed number of parking was fixed at 197 was the application of a table. This table required one bay for every 15m² of gross leasable area. We were told by counsel that the gross leasable area of this development was 2959m² which when divided by 15 resulted in a quotient of 197. The Tribunal set out and acted on the evidence of Mr Aulabaugh which was to the effect that the requirements under the table were unduly restricted and unrealistic. Mr Aulabaugh said that his recommendation was that the parking requirements in the central business district of Margaret River be reduced to one bay per 25m² of retail use. The requirement on that recommendation would be 118 bays.

37 An appeal to this Court must involve a question of law. (Town Planning and Development Act 1928 s 54B(2)). Mr Edmonds, on behalf of the developer, submitted that the matters the subject of the ground now being considered involved a mixed question of law and fact. He submitted that if there is a question of law which is raised in the appeal, but which has associated questions of fact, then it is proper to have regard to both the question of law and the associated questions of fact. He put the submission another way by saying that if the facts referred to are associated with a question of law, then they are properly before this Court.

38 The argument advanced in respect of this ground was that it was inconsistent with the orderly and proper planning of the locality not to order cash-in-lieu in this development when a requirement of this type had been imposed as a matter of course against other developers. Two aspects of ground 1, as argued by Mr Edmonds, were directed to this question. The first referred to a Statement of Planning Policy number 8 which was issued by the Western Australian Planning Commission under s 5AA of the Town Planning and Development Act. The ground claims that the Tribunal failed to have regard to this statement and it wrongfully relied upon and gave weight to reports by Mr Aulabaugh. Mr Edmonds refers to two paragraphs of the Statement of Planning Policy which read:

"The primary aim of planning is to provide for the fair, orderly, economic and ascertainable use and development of land.

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39 He then referred to the following paragraph appearing later under the heading "Infrastructure":

Planning should ensure that physical community infrastructure by both public and private agencies is co-ordinated and provided in a way that is efficient, equitable, accessible and timely."

From this it is claimed in the grounds of appeal that the Tribunal failed to have regard to the requirements of fairness and equity provided for in the statement of policy. There is a further head of the ground which claims, generally, that the Tribunal's decision in this area was not fair and equitable.
40 The reference to "equitable" appeared under heading "Infrastructure" and is referring to the fact that infrastructure should be equitable and accessible to members of the community. Statements of this type and the earlier reference to the word "fair" could not be construed as a general direction requiring the Tribunal, at law, to have regard to the requirements of fairness and equity. The sources of that type are s 52 of the Town Planning and Development Act and any rules of common law applicable to the Tribunal. Section 52 provides that on the hearing of any appeal the Tribunal shall act according to equity and a good conscience and the substantial merits of the case without regard to technicalities or legal forms, and shall not be bound by any rules of evidence, subject to the requirements of justice, and may inform itself of any matter in such manner as it thinks fit. The substance of this section is that the Tribunal is not bound by technicalities or legal forms or the rules of evidence. The section could not be construed as saying that the Tribunal is wrong at law if it is found that one of its decisions is not in parity with an earlier decision. The essential question is whether the Tribunal has properly considered the matters the Scheme requires to be considered.

41 The Tribunal in the present case was required to determine if it was satisfied that the proposed development would be consistent with the orderly and proper planning of the locality as well as the other matters referred to in the clause. It could not exercise the power it had under cl 5.2 unless it was satisfied of the matters referred to in that clause. Reference was made in argument to its discretion miscarrying. That is inappropriate terminology. It had power provided it was satisfied on the matters referred to in the clause and the question is whether there was any error of law when it reached the decision that it was so satisfied. It heard evidence and carefully considered under separate headings each of the

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matters referred to in (a), (b) and (c). There was evidence on which it could reach its view. It considered the fact that the developer was required to incur expense in respect of providing parking bays both on its land and on Council land. It was required to do other public work. The Tribunal had evidence before it that the number of parking bays required was 118. In my view there was evidence on which the Tribunal could reach its conclusion and it has not been shown that it acted on any wrong principle of law. I have weighed up a submission of Mr Edmonds that it was not orderly and proper planning for the Tribunal to impose conditions in relation to land under the care, control and management of the local authority and to make that land available for the use by a developer. I cannot see why this should be so. If there is sufficient further parking on adjoining land, that, in itself, would be a sufficient reason to consider the reduction of parking on the land the subject of the development. Once there is adequate parking on land available for parking, then it would be consistent with orderly planning to allow a development to go ahead.

42 There is a further particular to ground 1 which claims, in the alternative, that the Tribunal was not permitted, as a matter of construction, to make a reduction without requiring cash-in-lieu under cl 5.16.8.. This particular question was considered by the Tribunal which said, in effect, that the two clauses operated independently and the latter clause could not be interpreted to deprive cl 5.2 of its purpose. I consider that each of the clauses are independent of the other. Clause 5.16.8 does no more than empower the Council to decide that it may accept cash-in-lieu of car parking and if the Council acts under this clause, there is a mandatory requirement as to how the money is to be applied. There are no words in the Scheme requiring the Council to require cash-in-lieu before exercising its powers under either 5.2 or 5.16.4. In particular I can see no intention that if power is exercised under cl 5.16.4 to reduce the number of bays in order to preserve a landscape feature, then there is a requirement to request a cash-in-lieu payment. Clause 5.16.4 makes no reference to this, nor could cl 5.16.8 be interpreted as relating back to cl 5.16.4.

Power under cl 5.16.4

43 It was submitted that the Tribunal did not fully exercise its powers under cl 5.2 as it acted in two stages, namely it considered and made the reduction of 10 per cent under cl 5.16.4 and then it exercised its powers under cl 5.2 in respect of the remainder of the bays.

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44 The Tribunal, when making a summary of the arguments before it, said (AB 14) that the evidence before the Tribunal indicated that the plan would involved the retention and maintenance of a large number of large trees which arguably involve the preservation of a landscaped feature. The Tribunal said "There seemed to be no issue as to that. That appears to be the case and we so find. Therefore the reduction permitted is to be no more than 10 per cent of the total car bays otherwise required". The Tribunal said that on that basis there would be a reduction to 177 bays. The Tribunal then said that the next step in the developer's argument was that a further reduction should be made under cl 5.2.

45 Having outlined the appellant's argument in this way, the Tribunal then considered its powers under cl 5.2 and gave consideration to the appellant's arguments as to the effect on the general power of the limited power under cl 5.16.4. It considered this latter clause did not restrict the operation of cl 5.2 and accordingly the Tribunal considered it had power to act under that clause provided that the Tribunal was satisfied on the evidence that the matters referred to in (a), (b) and (c) of cl 5.2 had been established. The Tribunal, in its reasons, under separate headings, considered the three questions raised by those three clauses. It reached the view that it was satisfied on the matters referred to in each of the clauses and it approved the development with the car bays reduced to the numbers to which I have earlier referred.

46 I consider that the Tribunal, when referring to cl 5.16.4 in the course of setting out submissions, did no more than make an incidental finding, in passing, on undisputed evidence. It said, in effect that a finding under that clause would not achieve the object of the developer and it proceeded to consider its powers under cl 5.2. I consider that the substance of the Tribunal's reasons is that it considered that it had full power to act under 5.2 and would exercise that power. The Tribunal when outlining its reasons did so under a heading called "Issue 3" and when outlining that issue, used both the words "and or" when referring to cl 5.16.4 and cl 5.2. The Tribunal then examined each of the questions raised by (a), (b) and (c) of cl 5.2 to see if they were satisfied on the matters referred to in each of those sub-clauses. The Tribunal then concluded by saying, "For all those reasons we are of the view that not only is there a discretion conferred under cl 5.2 but to grant the approval on the conditions set out … would be consistent with the criteria in 5.2 and in our view would be consistent with the 'spirit and purpose of the requirements or standards'."

47 As I consider that the Tribunal was exercising its power pursuant to cl 5.2, there is no point in examining the ground of appeal which states it

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was not open to the Tribunal to exercise powers under cl 5.16.4 on the basis that the trees to be preserved were not on the developer's land, but were on or substantially on the Council's land.

Breach of trust (Ground 2).

48 Ground 2 claims that the Council was acting in breach of trust in making Reserve 36720 available for parking for a private development. The reserve is at present being used for parking and has 18 bays. It is also possible for five further cars to park there outside the bays. Under the development the developer is required to upgrade the car park so that there are 71 bays.

49 The reserve, by a vesting order under the hand of His Excellency the Lieutenant Governor and dated 9 July 1980, was vested in the Shire in trust for a "vehicle park". It is submitted that it would be in breach of this trust to make the reserve available for the more limited purpose of parking for a private development. It is claimed, further, that it cannot be used for the purpose of enabling a private development without sufficient car parking to proceed. The ground of appeal states that it is inconsistent with the public trust for the Shire to confer a significant benefit on a private developer for its commercial advantage.

50 The question of how much of the estate in the land vests in the Shire under such an order was the subject of a discussion by Bramwell LJ in Cloverdale v Charlton (1878) 14 QBD 104 at 115. The question whether the Shire had a sufficient interest in the land to be a party to the development was raised before the Tribunal who ruled in the Shire's favour and this is not the subject of a ground of appeal. I would add, in passing, that the Tribunal's reasoning is consistent with what was said by Bramwell LJ. The question raised in the grounds is whether the Shire is in breach of the trust. There is nothing in the evidence or in the terms of the development to suggest that those persons who may park in the parking bays must do so on condition that they are a customer of the developer or its tenants. Everything points to the contrary, particularly the fact that some of the parking is street parking on the adjoining streets.

51 In my opinion, if the development proceeds, the land would be used as a vehicle park within the meaning of the vesting order. The Council is facilitating the trust by requiring the developer to perform work on the reserve to enable orderly parking to take place. It could not be seen as a breach of trust.

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52 There was a suggestion at one stage during the argument that it would be in breach of trust to make the reserve available to a developer for car parking and not to request cash-in-lieu when there is a shortfall. The suggestion was that a trustee must act in the best interests of the beneficiaries. I do not consider the trust in this instance goes as far as that. The purpose of the trust is to ensure a designated use of the land. Once the land is being used for that purpose, as I consider it is, then the trust has been complied with.

Lack of Finality (Ground 3)

53 Ground 3 refers to the requirement that the developer must construct 71 car bays on Reserve 36720 and the further requirement that subject to the closing and making available to the Shire a portion of Charles West Avenue, the developer is to construct on the closed portion 22 car park bays, three bus bays and some other buildings. It is claimed that it was not open to the Tribunal to allow the appeal on this basis as the conditions:

(1) Required the approval of another authority;

(2) Required the road reserves to remain available for parking at least for the period of the proposed development,

The ground, as amended, also refers to the fact that the Tribunal recognised that the requirement as to the 22 bays (condition 45) on the road intended to be closed might be invalid and severable. It is submitted that there is a possibility that the closure may not come about as the closure is dependent upon an act of the Minister for lands under s 58 of the Land Administration Act 1997.

54 The objection insofar as it related to the closing of Charles West Avenue was dealt with by the Tribunal in its reasons. I shall set out these reasons but shall change the terminology by referring to the parties as the objector, the Shire and the developer. The fact that this is a second appeal would make it confusing to refer to appellants and respondents. The reasons read: (AB15)

"The objector contends that such a condition is not permissible either on the basis that the conditions require the approval of another authority or specifically that a condition that a road reserve remain available for parking in the future is invalid.

In the case of the former, the objector relies upon the decision of this Tribunal in Permanent Trustee Australia Limited v

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Western Australian Planning Commission and City of Wanneroo (unreported, Town Planning Appeal Tribunal Western Australia, Appeal numbers 22 and 23 of 1997, published on 4 November 1998 at 165).

It is important to note that although the principle there espoused by the Tribunal is one for which there is judicial support, the facts of that case nevertheless led to the result which was appropriate in those circumstances.

For reasons which we describe below the factual circumstances here are quite different.

In Keenan v City of Port Lincoln (1986) 61 LGERA 58 it was held that approval to extend a motel on condition that a road reserve available for parking in the future was invalid. The condition expressed by the tribunal, the subject of the appeal, was that approval was granted on the basis that 'it would only run for so long as the road reserve were to remain available for parking purposes'.

In this case it is important to note that the Council of the Shire has by resolution dated 28 January 1999 already resolved to close the relevant portion of Charles West Avenue. It has in that sense therefore begun the process identified in s 58 of Land Administration Act.

Further it should be emphasised that it is only the Shire which could initiate and ultimately carry out the process to which that section has regard. Having thereby made that resolution, it is not a case that the development is dependent upon actions required to be undertaken by a party other than the Shire. In that respect we are of the view that the facts here are distinguishable from the authorities to which the objector refers.

In any event, in our view, condition 45 of the conditions of approval is plainly severable from the conditions of approval, if it were otherwise to be found to be invalid. Condition 44 (the requirement to provide the other parking bays) is not expressed in a way by which there is a positive obligation to provide 151 car parking bays. Instead condition 44 overtly required 129 car parking bays broken up as follow:

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'44.1 45 car bays on Lot 4, 5 and 6 Fearn Avenue and Bussell Highway:

44.2 71 car bays on Reserve 36720 (which includes the redevelopment of the existing 18 car bays):

44.3 13 car bays on Fearn Avenue road reserve.'

There is separately, and independently, an obligation within condition 45 to construct 22 car bays expressed in the following terms.

45. Subject to the closure and appropriate reservation of a portion of Charles West Avenue by the Council in accordance with the Council's resolution dated 28 January 1999, the developer to construct 22 car bays, 3 bus bays, an ablution/amenity block and a parent/child room facility on that portion of Charles West Avenue, generally in accordance with site plan and schedule of parking and the Shire's construction and engineering specifications.'

Finally for the sake of dealing completely with all the submissions raised by the objector in that regard, we are of the view that nothing that is thereby proposed would have the effect of changing the essential nature of the development application."

55 I would read these reasons as indicating that if for any reason the land for the further 22 car bays was not made available to the Shire for car parking, then the Tribunal was of the view that the Scheme could still proceed with the 129 bays and that it considered this would be consistent with the spirit and purpose of the requirements or standards of the Scheme. It was consistent with evidence before it that the parking requirement for this development was 118 bays.

56 It is submitted that the condition relating to Charles West Avenue does not impose an obligation on the developer to do anything unless and until the Shire, if it becomes able to do so, making the land available for parking and this is a matter which is beyond the control of the developer. The first answer to this proposition is that the Shire was a joint applicant for the approval of the development and, in that capacity, was a party before the Tribunal. It indicated that this reserve would be available and I would not see it as being open to the Shire to do any act of the type

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suggested to stop the development continuing. The second answer is that, if for any reason Charles West Avenue was not available, then it was the view of the Tribunal that the development could still proceed as the remaining parking bay were sufficient. We were referred to the fact that the Shire joined in the application by reason of the application including Reserve 36720. It did not include Charles West Avenue which was then a public road. I would not see this as making any difference as the Shire was still a party to the application and made it clear that this land, if made available to the Shire, would be part of the development in the sense that it would be available for parking.

57 The reasons of the Tribunal, which I have set out, related to Charles West Avenue. The grounds of appeal go further inasmuch as they make specific reference to Reserve 36720. It is claimed that it would be open to the Shire to revoke any earlier resolution in respect to this reserve. As the Shire was a joint applicant for the development with the inclusion of this reserve as part of the development, I consider that the Tribunal was entitled to act on the basis that there is finality in respect of this reserve being available for the purpose indicated. There would be many impediments to the Shire making a move inconsistent with its application.

58 The next matter referred to is the possibility that the Minister may revoke the vesting of Reserve 36720. In the original vesting order the powers reserved were those set out in s 37 of the Land Act 1933 which empowered His Excellency to change the purpose of the reserve or to amend its boundaries. The Land Act 1933 was repealed by the Land Administration Act 1997. Paragraph 16 of the second schedule of that Act provides that a vesting order continues as a Management Order under s 46 of the new Act. Section 50 gives the Minister power to revoke such an order, without consent, if it is in the public interest. There is always a theoretical possibility that title in any development may be lost for a number of reasons. These include the possibility of resumption or of warrants for non payment of rates or judgments. These are not matters to affect finality in the sense the term is being used.

59 I would allow the motion to amend the grounds but would dismiss the appeal.

60 IPP J: I agree with the reasons of Pidgeon J and have nothing further to add.