SIA Architects Pty Ltd and Town Of Claremont

[2008] WASAT 148

SIA ARCHITECTS PTY LTD and TOWN OF CLAREMONT [2008] WASAT 148

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 148
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:70/2008	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR D R PARRY (SENIOR MEMBER)	Delivered:	27/06/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Proposed development is compliant with cl 37A of the Town of Claremont Town Planning Scheme No 3
Category:	B
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Parties:	SIA ARCHITECTS PTY LTD TOWN OF CLAREMONT
Catchwords:	Town planning Development application "Mixed use development" comprising residential, office and showroom uses Preliminary issue Whether proposed development is compliant with local planning scheme provision requiring "a development that is for a use other than a 'Dwelling Self-Contained'" to have nominated setbacks from residentially zoned land Classification of use Whether mixed use development proposal classified as a whole to determine if it is "for a use other than a 'Dwelling Self-Contained'" Whether "mixed use development" is a land "use" for the purposes of the scheme or is a composite expression referring to two or more land uses
Legislation:	Interpretation Act 1984 (WA), s 18 Residential Design Codes of Western Australia (2008), App 1 State Administrative Tribunal Act 2004 (WA), s 31 Town of Claremont Town Planning Scheme No 3, cl 9(1), cl 10, cl 28, cl 37A, Table 2
Case References:	BP Australia Pty Ltd v City of Perth [1994] WATPAT 2; (1994) 10 SR (WA) 110 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Orders	1. The preliminary issue is answered as follows:,"The development application that is the subject of these proceedings is compliant with cl 37A of the Town of Claremont Town Planning Scheme No 3.",2. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision by 31 July 2008.,3. The proceedings are adjourned to a directions hearing at 10.30 am on 1 August 2008 in order to await the respondent's reconsideration.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SIA ARCHITECTS PTY LTD and TOWN OF CLAREMONT [2008] WASAT 148 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 JUNE 2008 FILE NO/S : DR 70 of 2008 BETWEEN : SIA ARCHITECTS PTY LTD

Applicant

AND

TOWN OF CLAREMONT
Respondent

Catchwords:

Town planning - Development application - "Mixed use development" comprising residential, office and showroom uses - Preliminary issue - Whether proposed development is compliant with local planning scheme provision requiring "a development that is for a use other than a 'Dwelling Self-Contained'" to have nominated setbacks from residentially zoned land - Classification of use - Whether mixed use development proposal classified as a whole to determine if it is "for a use other than a 'Dwelling Self-Contained'" - Whether "mixed use development" is a land "use" for the purposes of the scheme or is a composite expression referring to two or more land uses

(Page 2)

Legislation:

Interpretation Act 1984 (WA), s 18

Residential Design Codes of Western Australia (2008), App 1
State Administrative Tribunal Act 2004 (WA), s 31
Town of Claremont Town Planning Scheme No 3, cl 9(1), cl 10, cl 28, cl 37A, Table 2

Result:

Proposed development is compliant with cl 37A of the Town of Claremont Town Planning Scheme No 3

Category: B

Representation:

Counsel:

Applicant : Mr MJ Hardy
Respondent : Mr CA Slarke

Solicitors:

Applicant : Hardy Bowen
Respondent : McLeods

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

BP Australia Pty Ltd v City of Perth [1994] WATPAT 2; (1994) 10 SR (WA) 110
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 This decision concerned a preliminary issue as to whether a proposed mixed use development, comprising showroom, commercial office and residential uses, is compliant with a local planning scheme provision that states that "where an application is received for a development that is for a use other than a 'Dwelling Self-Contained' and the land the subject of that application abuts land that has a zoning or use of 'Residential', Council shall not approve of that development unless" it has nominated setbacks to the residential land.

2 The residential component of the proposal does not have the nominated setbacks, but the non-residential components have the nominated setbacks. The Council contended that the development can not be approved, because the provision refers to the whole of the development proposal which is classified as "mixed use", and, therefore, not a "Dwelling Self-Contained".

3 The Tribunal determined that, on the proper interpretation of the provision, in substance, three applications have been received for developments, although by means of a single development application and in the same building. The developments involve three different and distinct uses, one of which is a Dwelling Self-Contained and two are not. The part of the development proposal that is for Dwelling Self-Contained does not require the setbacks nominated in the provision. The part of the development proposal that is for non-residential uses requires the nominated setbacks, and is compliant with those setbacks.

4 The Tribunal determined that the development application is compliant with the provision. As the Council refused the development application on an incorrect understanding of the effect of the provision, the Tribunal invited the Council to reconsider its decision.

Introduction

5 The parties in planning review proceedings concerning the refusal of a development application have identified a preliminary issue for determination as to whether the development application is compliant with cl 37A of the Town of Claremont Town Planning Scheme No 3 (TPS 3 or Scheme).

(Page 4)

Background

6 On 25 July 2007, SIA Architects Pty Limited (SIA Architects) lodged a development application with the Town of Claremont (Council) for approval under TPS 3 of development described on the development application form as "3 storey mixed use development pre-cast concrete construction, metal roof" at Nos 263 - 265 Stirling Highway, Claremont (site). The proposed building includes:

• basement comprising garage, lift, stores and end of trip facilities;

• ground floor comprising a show room and two commercial offices;

• first floor comprising a commercial office with associated terrace fronting Stirling Highway and two residential units at the rear; and

• second floor comprising three residential units.

7 At its meeting on 5 February 2008, the Council considered a report from a senior planning officer recommending that it grant conditional development approval for the proposal. However, the Council resolved to defer the application to "further consider the legal advice in relation to [cl] 37A of [TPS 3]".

8 At its meeting on 19 February 2008, the Council resolved to refuse development approval for the following two reasons:

"(i) the application is contrary to the provisions of [cl] 37A of the Scheme;

(ii) the application is contrary to the orderly and proper planning and preservation of the amenities of the locality."

9 On 26 February 2008, SIA Architects sought review of the Council's decision.

Preliminary issue

10 Clause 37A(1) of TPS 3 states in part, as follows:

"Notwithstanding the provisions of Table 2 - Development Table, where an application is received for a development that is for a use other than a 'Dwelling Self-Contained' and the land the subject of that application abuts land that has a zoning or use of 'Residential', Council shall not approve of that development unless:

(Page 5)

(a) The following building setbacks from the Residential zoned land are provided:

(i) Six (6) metres for the ground floor and first floor with all other floors being set back six (6) metres for each additional storey;"

11 The site is zoned "Highway" under TPS 3. The property that adjoins the rear boundary of the site is zoned "Residential" with a residential density coding of R 40 under the Scheme.

12 The proposed building is set back 6 metres from the common boundary with the Residential-zoned land. As the second floor of the building would not be set back by 12 metres from the Residential-zoned land, the Council contends that the development is not compliant with cl 37A(1)(a)(i) of the Scheme and, therefore, must be refused consent. In contrast, SIA Architects contends that the proposal is compliant with the clause and should be determined on its merits.

13 The Council accepts that the expression "Dwelling Self-Contained" in cl 37A(1) of the Scheme has the defined meaning of the term "Dwelling (Self-contained)" in cl 10 of the Scheme, and that the residential units in the proposed development fall within the scope of that definition. However, the Council submits that the phrase "a development that is for a use other than a 'Dwelling Self-Contained'" in cl 37A(1), "must be understood as referring to the whole of the development proposal on the land the subject of the development application abutting [R]esidential[-]zoned land". The Council argues that although part of the proposal is for a "Dwelling Self-Contained" use, the development proposal as a whole cannot be classified in this way, because it is a "mixed use development" comprising a showroom and commercial offices, as well as residential units.

14 SIA Architects does not contest the Council's contention that cl 37A of the Scheme requires a single classification for the whole of the development proposal. It agrees with the Council that the proposal is correctly classified as a "mixed use development", because of the commercial components.

15 However, SIA Architects submits that the Tribunal should adopt a purposive interpretation of cl 37A(1)(a)(i) of the Scheme, consistently with Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation(Cth) (1981) 147 CLR 297 at 320 and 321, and s 18 of the Interpretation Act 1984 (WA). SIA Architects contends that the purpose of the provision is to protect the amenity of the adjoining residential properties. It submits that the proposed

(Page 6)

development is consistent with this purpose.

Consideration of preliminary issue

16 The Tribunal does not agree with the joint position of the parties that, on its proper interpretation, the phrase "a development that is for a use other than a 'Dwelling Self-Contained'" in cl 37A(1) of the Scheme refers to the whole of the development proposal for the site. Furthermore, the Tribunal does not agree with the parties' classification of the proposed development as a "mixed use development" for the purposes of TPS 3.

17 It is apparent from the introductory words of cl 37A(1) ­ "[n]otwithstanding the provision of Table 2 ­ Development Table" ­ that the clause is intended to be supplemental to Table 2 ­ Development Table. Table 2 ­ Development Table prescribes ­ by operation of cl 28 ­ building setback, landscaped open space and car parking development standards in relation to 25 specified land uses, including "Dwelling (Self-contained)", "Office" and "Showroom".

18 While it is common parlance in town planning to refer to a development proposal comprising residential and commercial components as a "mixed use development", neither Table 2 - Development Table nor the Scheme generally recognises a "mixed use development" land use. Rather, TPS 3 recognises separate and distinct land uses of "Dwelling (Self-contained)", "Office" and "Showroom". The residential, commercial office and showroom components of the development proposal for the site satisfy the respective Scheme definitions of these terms in cl 10.

19 Where permissible in a particular zone under the Scheme, "Dwelling (Self-contained)", "Office" and "Showroom" uses can be combined in the same building. The Scheme definitions of "Office" and "Showroom" in cl 10 each expressly recognise that those land uses may occupy only part, rather than the whole, of a building. The Scheme definition of "Dwelling (Self-contained)" in cl 10 includes "Grouped Dwelling" and "Multiple Dwelling". A "Grouped Dwelling" may, and a "Multiple Dwelling" must, occupy only part, rather than the whole, of a building: see definitions of "Grouped Dwelling" and "Multiple Dwelling" in App 1 of the Residential Design Codes of Western Australia (2008) which are incorporated into the Scheme by cl 9(1) of TPS 3. The Scheme itself, in cl 37, recognises that a building can be used for "multiple purposes", that is, for different and distinct land uses, and makes special provision for the application of development standards in such cases.

(Page 7)

20 Furthermore, as the Town Planning Appeal Tribunal stated in BP Australia Pty Ltd v City of Perth [1994] WATPAT 2; (1994) 10 SR (WA) 110 at 114, in a passage referred to with approval by the Supreme Court of Western Australia (Full Court) in Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431 at [1]; [2]; [53]:

"A single development application can be considered for different and distinct uses on the one site and it is important not to lump independent uses into one dominant use for the purpose of classification."

21 The same principle applies where a single development application is made for approval for separate and distinct land uses in the same building. The separate and distinct land uses of "Dwelling (Self­contained)", "Office" and "Showroom" cannot be "lumped together" for classification purposes under the Scheme. In this case, in substance, three applications have been received for developments, although by means of a single development application and in the same building. The proposed developments involve three different and distinct uses, one of which is Dwelling Self-Contained, while the other two are not. Each of the three applications for a development must be considered separately as to whether it is for a use to which cl 37A(1) applies and, if so, whether it is compliant with the setback requirements that are set out in the clause.

22 A purposive interpretation of cl 37A(1) arrives at the same result. It is apparent from the exclusion of "Dwelling Self­Contained" use from the operation of the clause that the intention of the provision is to protect existing residential amenity in residential areas that abut non-residential areas, by requiring non­residential development - rather than residential development - to be set back by the nominated buffer distances.

23 Furthermore, the Scheme clearly does not require a wholly residential building in a non-residential area to be set back by the buffer distances stated in cl 37A(1). A "Dwelling Self­Contained" in a non­residential area that abuts Residential-zoned land is not likely to have any different or greater impact on existing residential amenity in the residential area whether it is located in a mixed-use building or in a wholly residential building.

24 It follows that, on its proper interpretation, cl 37A(1)(a)(i) precludes approval of an application for a development for a non­residential use on the ground floor or first floor of a building closer than 6 metres, or closer than 6 metres

(Page 8)

plus 6 metres at each higher level, from a boundary with Residential-zoned land. On its proper interpretation, the provision does not preclude approval of an application for a development for a residential use within these setbacks where the residential use is located in a mixed-use building.

25 In this case, the showroom and commercial offices at the ground floor of the proposed building and the commercial office at the first floor are compliant with the setback requirements in cl 37A(1)(a)(i). Although the residential units on the second floor of the building have a setback of 6 metres, rather than 12 metres, from the common boundary with the Residential-zoned land, cl 37A(1) does not apply to that component of the proposal, because it does not involve "an application … for a development that is for a use other than a 'Dwelling Self-Contained'".

Conclusion

26 The non-residential components of the proposed development are compliant with cl 37A of TPS 3. This provision does not apply to the residential components of the proposed development.

27 The application for review should, therefore, proceed to a determination of the merits of the proposed development.

28 However, as the Council refused the development application on an incorrect understanding of the effect of cl 37A, it is appropriate to at first invite the Council to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA).

Orders

29 The Tribunal makes the following orders:

1. The preliminary issue is answered as follows:

"The development application that is the subject of these proceedings is compliant with cl 37A of the Town of Claremont Town Planning Scheme No 3."

2. Pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision by 31 July 2008.

(Page 9)

3. The proceedings are adjourned to a directions hearing at 10.30 am on 1 August 2008 in order to await the respondent's reconsideration.

I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER