SIKH ASSOCIATION OF WESTERN AUSTRALIA and CITY OF GOSNELLS
[2014] WASAT 163
•3 DECEMBER 2014
SIKH ASSOCIATION OF WESTERN AUSTRALIA and CITY OF GOSNELLS [2014] WASAT 163
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 163 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:393/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS N OWEN-CONWAY (MEMBER) | 3/12/14 | |
| 44 | Judgment Part: | 1 of 1 | |
| Result: | Upon review: a) the respondent's decision that the applicant's proposed change to the Canning Vale Outline Development Plan is not a minor change to or departure from the Canning Vale Outline Development Plan within the meaning of cl 7.5.1 of the City Of Gosnells Town Planning Scheme No 6 is affirmed b) the respondent's decision to determine that the applicant's proposal was not satisfactory for advertising, made 25 February 2014, is set aside c) the Tribunal substituted its own decision made pursuant to cl 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6 | ||
| B | |||
| PDF Version |
| Parties: | SIKH ASSOCIATION OF WESTERN AUSTRALIA CITY OF GOSNELLS |
Catchwords: | Change to or departure from Outline Development Plan 'Minor' Material alteration Intent of Outline Development Plan Modification Development Contribution Plan Relevance to intent of outline development plan |
Legislation: | City of Gosnells Town Planning Scheme No 6, cl 6.4, cl 7.2.3, cl 7.3, cl 7.4, cl 7.4.2 cl 7.5.1, cl 7.5.3, cl 7.8.2, cl 10.4, cl 11.10, Sch 12 Interpretation Act 1984 (WA), s 16(1), s 36, s 38 Local Government Act 1995 (WA), s 2, s 6.26(2)(d) Metropolitan Region Scheme Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 17, s 19 Planning and Development Act 2005, s 3, s 236, s 252 State Administrative Tribunal Act 2004 (WA), s 17, s 29(3)(c)(i), s 31 Town Planning and Development Act 1928 (WA) |
Case References: | Nil |
Orders | On the application determined on the documents by Member Natasha Owen-Conway, it is on 3 December 2014 ordered that:,1. Upon review:,(a) Pursuant to s 29(3)(a) of the State Administrative Tribunal Act 2005 (WA), the respondent's decision that the applicant's proposed change to or departure from the Canning Vale Outline Development Plan made on 19 March 2013 is not a minor change to or departure from the Canning Vale Outline Development Plan within the meaning of cl 7.5.1 of the City of Gosnells Town Planning Scheme No 6, is affirmed.,(b) Pursuant to s 29(3)(c) of the State Administrative Tribunal Act 2005 (WA), the respondent's decision made on 25 February 2014 is set aside.,(c) Pursuant to s 29(3)(c) of the State Administrative Tribunal Act 2005 (WA), the Tribunal determines pursuant to cl 7.4.2(b) of the TPS 6 that the applicant's proposed change to or departure from the Canning Vale Outline Development Plan made on 19 March 2013 is not to be advertised until the applicant undertakes modification to its proposal by reducing proposed Place of Worship Precinct to that portion of Lot 123 Shreeve Road. |
Summary | The Sikh Association of Western Australia Inc proposed a change to or departure from the Canning Vale Outline Development Plan. The City of Gosnells considered that the Association's proposal was not a minor change to or departure from the Canning Vale Outline Development Plan within the meaning of that expression in cl 7.5.1 of the City of Gosnells Town Planning Scheme No 6. The Tribunal affirmed that decision. ,As a consequence of that decision the City of Gosnells was obliged to consider the applicant's proposal pursuant to cl 7.4 of the City of Gosnells Town Planning Scheme No 6. The City of Gosnells purported to determine that the Association's proposal was not satisfactory for advertising until the Association advanced specific modifications to the proposal, which modifications were precisely identified. The City of Gosnells purported to make the determination pursuant to cl 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6. The Tribunal set aside the City of Gosnells' decision purportedly made pursuant to Clause 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6 and substituted its own decision made pursuant to cl 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6 and s 29(3)(c)(i) of the State Administrative Tribunal Act 2004 (WA) that the Association's proposal was not to be advertised until specific modifications are made to the Association's proposal to change or depart from the Outline Development Plan, and specifically to the Outline Development Plan Map concerning the spatial extent of the site to be designated a 'Place of Worship Precinct'. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SIKH ASSOCIATION OF WESTERN AUSTRALIA and CITY OF GOSNELLS [2014] WASAT 163 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 3 DECEMBER 2014 FILE NO/S : DR 393 of 2013 BETWEEN : SIKH ASSOCIATION OF WESTERN AUSTRALIA
- Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Change to or departure from Outline Development Plan 'Minor' Material alteration Intent of Outline Development Plan Modification Development Contribution Plan Relevance to intent of outline development plan
Legislation:
City of Gosnells Town Planning Scheme No 6, cl 6.4, cl 7.2.3, cl 7.3, cl 7.4, cl 7.4.2 cl 7.5.1, cl 7.5.3, cl 7.8.2, cl 10.4, cl 11.10, Sch 12
Interpretation Act 1984 (WA), s 16(1), s 36, s 38
Local Government Act 1995 (WA), s 2, s 6.26(2)(d)
Metropolitan Region Scheme
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 17, s 19
Planning and Development Act 2005, s 3, s 236, s 252
State Administrative Tribunal Act 2004 (WA), s 17, s 29(3)(c)(i), s 31
Town Planning and Development Act 1928 (WA)
Result:
Upon review:
- a) the respondent's decision that the applicant's proposed change to the Canning Vale Outline Development Plan is not a minor change to or departure from the Canning Vale Outline Development Plan within the meaning of cl 7.5.1 of the City Of Gosnells Town Planning Scheme No 6 is affirmed
b) the respondent's decision to determine that the applicant's proposal was not satisfactory for advertising, made 25 February 2014, is set aside
c) the Tribunal substituted its own decision made pursuant to cl 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6
Summary of Tribunal's decision:
The Sikh Association of Western Australia Inc proposed a change to or departure from the Canning Vale Outline Development Plan. The City of Gosnells considered that the Association's proposal was not a minor change to or departure from the Canning Vale Outline Development Plan within the meaning of that expression in cl 7.5.1 of the City of Gosnells Town Planning Scheme No 6. The Tribunal affirmed that decision.
As a consequence of that decision the City of Gosnells was obliged to consider the applicant's proposal pursuant to cl 7.4 of the City of Gosnells Town Planning Scheme No 6. The City of Gosnells purported to determine that the Association's proposal was not satisfactory for advertising until the Association advanced specific modifications to the proposal, which modifications were precisely identified. The City of Gosnells purported to make the determination pursuant to cl 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6. The Tribunal set aside the City of Gosnells' decision purportedly made pursuant to Clause 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6 and substituted its own decision made pursuant to cl 7.4.2(b) of the City of Gosnells Town Planning Scheme No 6 and s 29(3)(c)(i) of the State Administrative Tribunal Act 2004 (WA) that the Association's proposal was not to be advertised until specific modifications are made to the Association's proposal to change or depart from the Outline Development Plan, and specifically to the Outline Development Plan Map concerning the spatial extent of the site to be designated a 'Place of Worship Precinct'.
Category: B
Representation:
Counsel:
Applicant : Mr C O'Neill (Acting as Agent)
Respondent : Ms L Langford
Solicitors:
Applicant : N/A
Respondent : City of Gosnells
Case(s) referred to in decision(s):
Nil
Introduction
1 On 19 March 2013, the Sikh Association of Western Australia (applicant) applied to the City of Gosnells (respondent) to adopt the applicant's proposal for a change to or departure from the Canning Vale Outline Development Plan (ODP) to designate the whole of the applicant's property, situate at 280 (Lot 123) Shreeve Road, Canning Vale (site), as a 'Place of Worship Precinct'. On 24 September 2013, the respondent made a decision pursuant to cl 7.4.2(c) of the City of Gosnells Town Planning Scheme No 6 (TPS 6) that the proposal was not satisfactory for advertising (decision).
2 On 22 October 2014, the applicant lodged an application in the Tribunal for review of the respondent's implicit refusal to adopt the proposal as a 'minor' change to or departure from the ODP, pursuant to cl 7.5.1 TPS 6.
3 The applicant sought an order from the Tribunal to set aside the decision and substitute it with a decision by the Tribunal:
a) adopting the proposal; and
b) directing the respondent to:
… forward, a copy of the change to the ODP to the WA Planning Commission in accordance with the provisions of clause 7.5.2 of [TPS6].
4 On 25 February 2014, following an invitation extended by the Tribunal pursuant to s 31 of the State Administrative Tribunal Act2004 (WA) (SAT Act), the respondent reconsidered the decision, and following its reconsideration, the respondent:
i) set aside the decision; and
ii) substituted the decision with a new decision (reviewable decision) that the respondent:
… pursuant to Clause 7.4.2(b) of [TPS6], determine the proposed modification to the [ODP] as contained in Appendix 13.5.4C is not satisfactory for advertising, until the proposal is modified as follows:
1. The spatial extent of the Place of Worship Precincts are modified in accordance with Appendix 13.5.4D.
2. The ODP text is modified in accordance with Appendix 13.5.4E.
5 The ODP Map modification sought by the respondent reduces the proposed Place of Worship Precinct designation of the site to the area currently developed as a Temple and two car parks. The ODP text modification sought by the respondent exempts the area of any Place of Worship Precinct that is used for worship and associated or ancillary purposes from payment of contributions in accordance with the Development Contributions Plan, which forms part of the ODP along with the ODP Map and text (and is otherwise referred to as the Schedule of Common Infrastructure works) (DCP), where the development is for worship or associated or ancillary uses. The respondent's modification to the ODP text also clarifies that any subdivision or development of the land within the Place of Worship Precinct that is not for worship or associated or ancillary uses will attract DCP contributions commensurate with the area of land that is the subject of the subdivision or development.
The statutory framework
6 Clause 7.5.1 of TPS 6 provides:
The Council may adopt a minor change to or departure from an Outline Development Plan if, in the opinion of the Council, the change or departure does not materially alter the intent of the Outline Development Plan.
7 Clause 7.8.2 of TPS 6 confers a specific right of 'appeal' from any decision by the respondent, upon the proponent of a proposal for change to or departure from an ODP. Although the appeal is said to be pursuant to or in accordance with the Town Planning and Development Act 1928 (WA), which was repealed and replaced with the Planning and Development Act 2005 (WA) (PD Act), the provisions of s 17 and s 19 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 3 and s 236 of the PD Act, s 16(1), s 36, and s 38 of the Interpretation Act1984 (WA) and the definition of 'written law' and 'subsidiary legislation' therein, cl 7.8.2 of TPS 6 confers upon the applicant a right of review of any decision made pursuant to cl 7.5.1 of TPS 6 in accordance with the PD Act.
8 Clause 7.5.3 of TPS 6 provides:
Any change to or departure from an Outline Development Plan that is not within clause 7.5.1 is to follow the procedures set out in clause 7.4.
9 Clause 7.4.2 of TPS 6 provides:
Upon receiving a Proposed Outline Development Plan, the Council is to either:
(a) determine that the Proposed Outline Development Plan is satisfactory for advertising;
(b) determine that the Proposed Outline Development Plan is not to be advertised until further details have been provided or modifications undertaken; or
(c) determine that the Proposed Outline Development Plan is not satisfactory for advertising and give reasons for this to the Proponent.
10 Clause 7.4.4 of TPS 6 confers on the proponent a right to refer the proposal to the Western Australian Planning Commission (WAPC) to make a fresh determination under cl 7.4.2 of TPS 6 on the merits of the proposal if the respondent made a determination pursuant to cl 7.4.2 of TPS 6. That right is, in effect, a right of review of the respondent's determination made pursuant to cl 7.4.2(b) or 7.4.2(c) of TPS 6, albeit to the WAPC. Section 236 of the PD Act provides, relevantly:
(1) In this section
planning scheme includes any other instrument that regulations made under the State Administrative Tribunal Act 2004 specify to be a planning scheme for the purposes of subsection (3).
(2) This Part [Part 14] applies if a written law or a planning scheme or any other written law gives the State Administrative Tribunal jurisdiction to carry out a review in accordance with this Part.
(3) Even if a planning scheme does not expressly give a person a right to apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision or matter, the planning scheme is to be taken to give that right if
…
(b) the planning scheme is expressed as conferring on the person a right to appeal or apply for review in respect of the matter and the matter involves the exercise by the responsible authority of a discretionary power.
(4) Subsection (3) applies even if the planning scheme provides for the appeal, referral or application to be made otherwise than to the State Administrative Tribunal or, in the circumstances described in paragraph (b) of that subsection, otherwise than in accordance with this Part.
…
(Tribunal emphasis)
11 Although cl 7.4.4(a) of TPS 6 confers a right of review by the WAPC on the applicant, the operation of s 236(3)(b) and s 236(4) of the PD Act confers on the applicant a right of review by the Tribunal of any decision made pursuant to cl 7.4.2 of TPS 6.
12 In any event cl 11.10 of TPS 6 provides:
An applicant aggrieved by a determination of the local government in respect of the exercise of a discretionary power under the Scheme may appeal under Part V of the Town Planning Act.
13 Again the provision of s 236(3)(b) and s 236(4) of the PD Act confer on the applicant a right of review by the Tribunal of any decision resulting from the exercise of any discretionary power conferred upon the respondent under TPS 6.
14 Section 252 of the PD Act alternatively provides:
(1) Subject to subsection (3), if
(a) under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b) a person has applied to the responsible authority for such a grant; and
(c) the responsible authority has
(i) refused the application; or
(ii) granted it subject to any condition,
15 The determination made by the respondent pursuant to cl 7.4.2(b) of TPS 6 constitutes a refusal of the applicant's application to the respondent to adopt the proposal pursuant to s 7.5.1 of TPS 6 and a refusal of the applicant's alternative (implicit) application for a determination pursuant to cl 7.4.2(a) that the proposal is satisfactory for advertising.
16 For these reasons the Tribunal concludes that the application for review of the refusal to adopt the applicant's proposal pursuant to cl 7.5.1 of TPS 6 and the decision that the proposal is not satisfactory for advertising pursuant to cl 7.4.2(c) of TPS 6 are both decisions in respect of which TPS 6 confers, upon the applicant, a right of review to the Tribunal and such review falls within the Tribunal's jurisdiction as provided for by s 17 of the SAT Act.
The site
17 The site is zoned as Urban under the Metropolitan Region Scheme and zoned Residential Development under TPS 6, with a residential density coding of R20. The site is positioned on the corner of Nicholson Road and Shreeve Road, Canning Vale. The site currently accommodates a Temple and two car parking areas and comprises 2.058 hectares of land within the ODP area.
Relevant history of development of the site
18 On 24 January 1997, the applicant obtained planning approval to commence development of the site for a community and cultural centre and Place of Worship, pursuant to an application dated 20 December 1996. That approval lapsed, and on 27 August 1998, a fresh approval was granted by the respondent to the applicant to commence development pursuant to a fresh application dated 17 August 1998 for a 'Sikh Temple and Community Hall' in terms of the plans then proposed. It is common cause that the Temple was constructed, but the community hall has not been constructed.
19 On 13 May 2003, the respondent granted the applicant a rates exemption for the site pursuant to 'section 2' which was intended, no doubt to be a reference to s 6.26(2)(d) of the Local Government Act 1995 (WA), upon the basis that the site was used by a religious body as a place of public worship. The minutes of the respondent's meeting on 13 May 2003 record that the respondent resolved to exempt the site from rates 'for the years 1998, 1999, 2000 and 2001' and for a refund of the rates paid for those years. The basis of the grant of the rates exemption was recorded in the respondent's minutes as follows:
That the Sikh church be dealt with the same as other churches within the City that hold money raising events as their intention was to raise money for their building only.
20 The area of the site that is developed amounts to approximately 1.35 hectares, leaving approximately 0.7082 hectares undeveloped. Although approval has twice before been granted by the respondent to the applicant (see above) for further development of part of the site by the construction of a community hall, such a hall has not been constructed to date.
21 An occupancy permit relating to the Temple was granted on 26 February 2001 and limited to 400 people. A further occupancy permit relating to the Temple was granted on 10 January 2011, which increased the capacity of the Temple to 677 people. The increased occupancy capacity of the Temple and use of the Temple produced an increased need for car parking for worshippers attending the Temple. The grant of approval made on 27 August 1998 had included approval to use a portion of the then undeveloped land within the site for overflow car parking. To meet the regular and increased need for car parking, the applicant sealed the overflow car parking area at sometime prior to April 2011. This area now comprised the 1.357 hectares of development of the site.
22 On 22 February 2011, the respondent granted approval to the applicant for the development of part of the site with an ancillary meeting room/storage facility.
23 The applicant submits (at paragraph 10 of the applicant's submissions dated 21 July 2014):
Up until this time, the Applicant had no reason to believe its site was to be treated any differently from those preexisting Place of Worship sites on Warton Road.
24 In April 2011, the applicant made application for retrospective planning approval to use the overflow parking area as a car park (the applicant having sealed the overflow car parking area for use as a car park). On 23 August 2011, the respondent resolved to approve the applicant's application for planning approval to seal the overflow parking area for use as a car park subject to, inter alia, a condition that:
7. Arrangements be made to the satisfaction of the City of Gosnells, within 60 days of the date of this approval, for the payment of a requisite developer cost contribution applicable to the land under the Canning Vale Outline Development Plan Development Contribution Arrangement, in accordance with Schedule 12 of the Town Planning Scheme No. 6.
25 The applicant submits (at paragraph 14, applicant's submissions 21 July 2014) that the applicant was informed by the respondent that the DCP contribution, was to relate to the whole of the site, including the area on which the Temple had been constructed. The applicant submits (at paragraphs 14 – 17 of the applicant's submission dated 21 July 2014) that the decision to impose upon the applicant an obligation to pay contributions in accordance with the DCP is inconsistent with:
a) the respondent's decision to exempt the site from the payment of rates upon the basis that the site is used as a Place of Worship;
b) the respondent's decisions to allow development of the site without the imposition of an obligation to pay DCP contributions; and
c) clause 4.3 Sch 12 of TPS 6.
26 The applicant also submits that the value of the DCP contribution on the whole of the site at that time amounted to 'approximately $450,000'.
27 In May 2013, the applicant lodged a new application for retrospective planning approval of the sealed overflow car parking area and requested that the respondent 'set aside the requirements to make contributions under the ODP' (at paragraph 19 of the applicant's submissions 21 July 2014). That is, the applicant sought planning approval for the use of the overflow car parking area as a carpark but without the burden of the condition that had been imposed upon the applicant by the approval in August 2011, referred to above.
28 On 12 February 2013, the respondent resolved to approve the second extended car parking application on the basis that it was not conditional upon the applicant paying DCP contributions. However, at the respondent's meeting it was further resolved:
That [the respondent] adopt the following approach to the collection of contributions for Lot 123:
i) no contributions are payable at this point in time;
ii) when the undeveloped portion of the site is developed for residential purposes, contributions will be payable for the whole site, regardless of the extent of the residential development. (Tribunal's emphasis).
29 The applicant submits (at paragraph 21 of the applicant's submissions dated 21 July 2014):
… while [the respondent's] adopted approach at this time would suggest that no contribution would be payable in the absence of residential development, it does not make this explicit.
30 The applicant concedes, in paragraph 22 of its submissions of 21 July 2014, that the respondent's officers have stated, in a report to the respondent on the applicant's application to amend the ODP to designate the site as a Place of Worship Precinct, that no contribution under the ODP, including the DCP, would be payable unless residential development were to be undertaken. However, such a statement in a report does not have the benefit of being a planning decision that binds the respondent and attaches to the site that the applicant seeks.
The reviewable decision
31 The respondent states that the reviewable decision evinces an intention on the part of the respondent to treat the site in the same manner as the existing Place of Worship Precinct on Warton Road. The respondent concedes that 'this includes exempting a portion of the site which contains existing development at that time' (25 February 2014 minutes) from being liable to pay contributions. It is clear to the Tribunal, from this submission and from the decisions, that the respondent intends to treat the site in the same manner as the sites within the existing Place of Worship Precinct on Warton Road. That is, those parts of the lots within the existing Place of Worship Precinct on Warton Road will be exempted from liability to pay DCP contributions, provided that those parts continue to be used as a Place of Worship or for associated or ancillary purposes.
32 However, the respondent asserts that there must be an alteration to:
a) the ODP Map, to the extent that the area of the existing Place of Worship Precinct on Warton Road must be reduced to coincide with the area in fact used as a Place of Worship and for associated or ancillary purposes;
b) The ODP text to expressly provide that DCP contributions will not be payable if development in the reduced Place of Worship Precinct is undertaken and it is for worship or associated or related purposes, and if subdivision or development occurs on any part that is not so related, DCP contributions will be payable only in respect of the area of land so subdivided or developed.
- These alterations to the applicant's proposal are ones that the respondent proposes. The Tribunal notes that the respondent's position represents a substantial change in position to that articulated by the respondent in the minutes of meeting on 12 February 2013 referred to above.
33 The respondent, by making the reviewable decision, purports to impose the obligation of altering the ODP to the extent as proposed by the respondent upon the applicant. The respondent's proposal directly affects land not owned or controlled by the applicant and with which the applicant has no nexus (that is, the property within the existing Place of Worship Precinct on Warton Road).
34 Although the respondent purports to have made the reviewable decision pursuant to cl 7.4.2(b) of TPS 6, it is not one that can be made pursuant to that clause. The power to make a determination pursuant to cl 7.4.2(b) of TPS 6 does not include a power to determine that a proposal is not satisfactory for advertising until a desired modification to the proposal is made. The power conferred by cl 7.4.2(b) of TPS 6 is to make a determination that a proposal before the respondent:
… is not to be advertised until further details have been provided or modifications undertaken.
35 Clause 7.4.2(b) of TPS 6 does not empower the respondent to assess whether the proposal before any modification is satisfactory for advertising or not. Implicitly in any determination made pursuant to the power conferred by cl 7.4.2(b) of TPS 6, the respondent is taken to have decided that the specific details or modifications sought and identified by the respondent will render the proposal, as supplemented or amended by the details provided or modifications made, as satisfactory for advertising.
36 The reviewable decision in this matter is therefore not an exercise of the power conferred by cl 7.4.2(b) of TPS 6 but, rather, the exercise of the power conferred by cl 7.4.2(c) of TPS 6 to determine that the application's proposal is not satisfactory for advertising with the expression of the respondent's view of what might be considered by the respondent to be satisfactory for advertising. The Tribunal determines that the reviewable decision was therefore made pursuant to the power conferred by cl 7.4.2(c) of TPS 6.
37 Whether a proposal is 'satisfactory' for advertising must, in the Tribunal's view, be considered in the context of cl 10.4.3, 10.4.4 and 10.4.5 of TPS 6, which provisions are intended to ensure affected third party owners are notified of the proposal and are able to make submissions upon the same.
The issues
38 On 9 May 2014, Parry J noted by order made on that day:
1 that the issues for determination in this proceeding are as follows:
(a) Is the applicant's proposal for an amendment of the Canning Vale outline development plan (ODP) to designate the applicant's property as a 'Place of Worship Precinct' a 'minor change' within the meaning of clause 7.5.1 of the City of Gosnells Town Planning Scheme No. 6 (TPS 6).
(b) If the answer to issue (1) is 'yes', whether the Tribunal should exercise discretion (if available) to advertise the proposed amendment to the ODP.
(c) If the answer to issue (1) is 'yes' and if the answer to issue (2) is 'no', whether the Tribunal should adopt the proposed amendment to the ODP.
(d) If the answer to issue (1) is 'yes' and if the answer to issue (2) is 'yes', whether the Tribunal should adopt the amendment to the ODP after considering any submissions made in response to the advertising and any further submissions of the parties.
(e) If the answer to issue (1) is 'no', then what decision should the Tribunal make under clause 7.4.2 of TPS 6.
40 For the reasons referred to below, the Tribunal's answer to the question raised by issue (a) is 'no'. The Tribunal concludes that the applicant's, proposal for a change to or departure from the ODP to designate the site as a 'Place of Worship Precinct' is not a 'minor change or departure from the [OPD]' within the meaning of clause 7.5.1 of TPS 6.
41 For the reasons referred to below and in answer to the issue raised by the question referred to in (e), the Tribunal concludes that the correct and preferable decision is that the reviewable decision be set aside and a determination pursuant to cl 7.4.2(b) of TPS 6 should be substituted in its place.
The proceeding
42 As stated, the application was made on 22 October 2013. The matter was listed for mediation on 27 November 2013 and as a result, the Tribunal extended an invitation to the respondent to reconsider its original decision pursuant to s 31 of the SAT Act. The matter remained in mediation until 9 May 2014 when, at a directions hearing, the Tribunal ordered the filing of additional documents and a statement of agreed facts. All interlocutory proceedings were to have been completed by 4 August 2014 after which the Tribunal ordered (subject to further order) that the matter be determined on the documents. In the interim, the matter was referred again to mediation, which failed to produce a resolution of the dispute.
43 On 23 July 2014, the parties filed a statement of agreed facts and a bundle of attached agreed documents. The agreed facts are stated in full in these reasons.
44 Additionally, and incompliance with the Tribunal's orders made on 9 May 2014, the parties filed:
a) the applicant's submissions;
b) the respondent's submissions;
c) the applicant's submissions in response to the respondent’s submission;
d) the respondent's submissions in response to the applicant’s submissions; and
e) the respondent's letter dated 22 July 2014.
45 Subject to some additional documents, which the parties agreed were to be substituted in the agreed bundle, the facts and documents that the parties identified as relevant to this proceeding were all agreed.
Agreed facts
1.0 SITE AND APPLICATION HISTORY
1.1 On 3 September 1995, the landowners, Sikh Association of WA (SAWA), put in an offer to purchase the subject site, being 280 (Lot 123) Shreeve Road, Canning Vale (formerly known as Lot 123 Saddleback Grove), for the purposes of building:
• A Place of Worship and associated services
• Educational and Community facilities
• Retirement homes
1.2 On 6 September 1995, SAWA submitted an application to develop the site in three stages:
• Stage 1 - A two-storey (temple) to be used for worship, religious education and other activities.
• Stage 2 - Separate buildings to house the education, library and community facilities.
• Stage 3 - Aged persons units to be built in the longer term (i.e. it did not form a key element to the Association's plans).
A copy of the application is contained as Attachment 1.
1.3 On 24 October 1995, Council resolved (Resolution 214) to adopt recommendation 297 of the Planning Services Committee Meeting held on 10 October 1995, which stated "That Council decline to consider the Educational, Cultural/Community Centre, Worship and Senior Citizen Accommodation activity, for Lot 123 Saddleback Grove, Canning Vale, until the Minister for Planning determines the future zonings of the Canning Vale locality. "A copy of the minutes from Planning Services Committee Meeting on 10 October 1995 and the Council Minutes on 24 October 1995 are contained as Attachment 2.
1.4 The landowners subsequently appealed the non-decision (deemed refusal) of Council to the Minister for Planning and Heritage. On 12 February 1996, the Minister for Planning and Heritage upheld the appeal in part, granting approval for Stages 1 and 2, but refused Stage 3. A copy of the Minister's decision is contained as Attachment 3.
1.5 Following the Minister's decision, Council was required to determine the conditions of approval appropriate for the proposal. The landowners subsequently lodged an application on 20 December 1996 containing detailed drawings for assessment, which was subsequently approved by Council on 24 January 1997. A copy of Council's approval and the approved plan is contained as Attachment 4.
1.5 [sic] Following the expiration of the Minister's and Council's prior approvals, the landowner's lodged an application for a temple and community hall on the subject site (similar to the Stage 1 and 2 approvals issued in 1996/7). On 27 August 1998, the City approved the application, and the Stage 1 component was subsequently constructed and occupied in 2001. The approval letter is contained as Attachment 5. It should be noted that the associated approved plan was unable to be located by the City or the applicant.
1.6 Following the construction of the temple (Stage 1), the City, on 26 February 2001, issued an occupancy permit for the building which permitted a maximum occupation of 400 persons. A copy of the permit is contained as Attachment 6.
1.7 On 13 May 2003, the Council granted a rates exemption for the site, in accordance with section 2 of the Local Government Act, which stipulates:
(2) The following land is not rateable land -
(d) land used or held exclusively by a religious body as a place of public worship…
- A copy of the rates exemption notice is contained as Attachment 7.
1.8 On 10 January 2011, the City issued a revised occupancy permit for the temple which increased the maximum allowable occupation capacity of the building from 400 to 677 persons. A copy of the permit is contained as Attachment 8.
1.9 On 22 February 2011, Council resolved (Resolution 54) to approve an application for a meeting room and storage facility. This approval did not impose a condition requiring the payment of the requisite developer cost contributions applicable under the Canning Vale Outline Development Plan (ODP) Development Contribution Plan (DCP). An extract of the Council Minutes from 22 February 2011, the associated approval letter and approved plan are contained as Attachment 9.
1.10 As a result of the increase in the maximum allowable occupancy of the temple building, the landowners sought to increase the size of the car park to accommodate an increased demand for parking. The landowners' bituminised an area previously used for the purposes of an over-flow car parking area.
1.11 In April 2011, the landowners of the subject site lodged an application which sought retrospective approval for the car parking modifications and the construction of the bitumen parking area. On 23 August 2011, Council resolved (Resolution 390) to approve the application subject to a number of conditions, including the payment of the requisite developer cost contributions applicable under the Canning Vale ODP DCP. An extract of the Council Minutes from 23 August 2011, the associated approval letter and approved plan are contained as Attachment 10. At the time of the determination, the developer contribution rates applicable under the DCP were $50,532/ha and 12.74% public open space at a rate of $135/m², which would have equated to approximately $450,000 for the subject site.
1.12 Following discussions with Council Officers, the landowners lodged an application in May 2012 seeking to modify the car parking layout, and also sought Council's consent to set aside the requirements to make contributions under the Canning Vale ODP DCP. On 12 February 2013, Council resolved (Resolution 27) to approve the application without a condition requiring the payment of the requisite developer cost contributions. Instead, Council resolved (Resolution 29) to adopt an alternative approach to the collection of contributions for the subject site, as follows:
That Council adopt the following approach to the collection of contributions for Lot 123:
i) No contributions are payable at this point in time.
ii) When the undeveloped portion of the site is developed for residential purposes, contributions will be payable for the whole site, regardless of the extent of that residential development.
- A copy the supporting letter accompanying the application, an extract of the Council Minutes from 12 February 2013, the associated approval letter and approved plan are contained as Attachment 11.
1.13 In March 2013, the applicant lodged an application seeking to modify the Canning Vale ODP and associated Development Contribution Plan Report to have the subject site designated as a 'Place of Worship Precinct' and made exempt from the requirement to contribute to the DCA. A copy of the applicant's amendment application is contained as Attachment 12, and a plan depicting the modification on the ODP map is contained as Attachment 13.
1.14 In assessing the application, the City deemed that the modification was not a 'minor change' in accordance with Clause 7.5.1 of TPS 6, and as such the assessment procedures/process set out in Clause 7.4 of TPS 6 was followed. The modification was not considered to be a minor change due to the implications that it would have on the final balance of the Canning Vale ODP DCP and its ability to deliver the necessary infrastructure to the ODP area, thereby undermining the objective of the ODP in its ability to provide a framework for the progressive and planned urban development of the ODP area.
Applicant's Note: The applicant notes that the issue of classification (minor/major) was not addressed in the officer's report to Council nor in the Council's resolution. As such, it questions whether the information in 1.14 can be accepted as part of this statement of facts, although it is accepted as the view of the City.
1.15 On 24 September 2013, pursuant to Clause 7.4.2 of TPS 6 Council considered whether the proposal was satisfactory for advertising, and resolved (Resolution 398) as follows:
That Council, pursuant to Clause 7.4.2 (c) of Town Planning Scheme No. 6 determine that the proposed modified Canning Vale Outline Development Plan, as contained in Appendix 13.5.1C, is not satisfactory for the purposes of advertising due to the implications that it would have on the final balance of the Canning Vale Outline Development Plan Developer Contribution Arrangement and its ability to deliver the necessary infrastructure to the ODP area.
An extract of the Council Minutes from 24 September 2013 is contained as Attachment 14.
1.16 Pursuant to Section 31 of the State Administrative Tribunal Act 2004, Council was invited to reconsider its decision of 24 September 2014, and subsequently, Council reconsidered the application at its meeting of 25 February 2014, and resolved (Resolution 40) as follows:
That Council, pursuant to Section 31 of the State Administrative Tribunal Act 2004, sets aside its previous decision of 24 September 2013, and substitute a new decision that Council, pursuant to Clause 7.4.2(b) of Town Planning Scheme No. 6, determine the proposed modification to the Canning Vale ODP as contained as Appendix 13.5.4C is not satisfactory for advertising, until the proposal is modified as follows:
1. The spatial extent of the Place of Worship Precincts are modified in accordance with Appendix 13.5.4D.
2. The ODP text is modified in accordance with Appendix 13.5.4E.
- An extract of the Council Minutes and associated appendices from 25 February 2014 is contained as Attachment 15.
2.1 The subject site is zoned 'Residential Development' under the City of Gosnells TPS 6, and is subject to the Canning Vale ODP which designates the property as Residential with a density coding of R20. An extract of the TPS 6 Scheme Map is contained as Attachment 16, and a copy of the current Canning Vale ODP and associated text is contained as Attachment 17.
2.2 The subject site is 2.0582ha in area, and is located on the corner of Nicholson Road, Shreeve Road and Urquhart Court. It contains an existing two-storey Place of Worship (Sikh Temple), caretakers' dwelling and a bitumen parking area abutting the northern boundary facing Nicholson Road. The remainder of the site is vacant. The site is surrounded by low-density residential properties in all directions, with the exception of a large, mostly vacant lot to the north-east of the property. A location plan is contained as Attachment 18.
3.0 PLANNING FRAMEWORK - TPS 1, TPS 6, CANNING VALE ODP, DCP AND DCPR
3.1 On 6 April 2001, the Canning Vale ODP, the associated DCP (formerly known as a Developer Contribution Arrangement or DCA), and the DCPR (formerly known as a Development Contribution Plan, or Schedule of Common Infrastructure Works), were approved. A copy of the original Canning Vale ODP is contained as Attachment 19. A copy of the DCPR is contained as Attachment 20.
3.2 Amendment No. 478 to Town Planning Scheme No. 1 (TPS 1) was gazetted on 6 April 2001 (coinciding with the Canning Vale ODP adoption date) and involved rezoning the ODP area from 'Rural' to 'Residential Development', and also established a statutory mechanism for obtaining contributions from developers through the DCP and DCPR. An extract from the Government Gazetted, WA, 6 April 2001, is contained as Attachment 21.
3.3 In relation to the term of approvals issued under TPS 1, Clause 41 of TPS 1 stipulated:
Every consent given pursuant to the Scheme by the Responsible Authority shall, unless extended by the Responsible Authority, lapse at the expiration of twelve (12) months) from the date upon which that consent is given, if -
a) where consent is given for land to be used for a specific purpose, that use has not commenced; or
b) where consent is given for the erection carrying out enlargement rebuilding or extension of any building or works, that erection carrying out enlargement rebuilding or extension (as the case may be) has not been commenced.
3.4 On 15 February 2002, TPS 1 was revoked and replaced by a new town planning scheme covering the entire local government district of the City of Gosnells, Town Planning Scheme No. 6 (TPS 6).
3.5 TPS 1 carried to TPS 6 enabling provisions for the preparation of ODPs, as well as provisions governing the administration of ODPs, including amendment and appeal (review) provisions, as well as Common Infrastructure provisions. These provisions are contained under Parts 6 and 7 and Schedule 12 of TPS 6, and are used for the purpose of providing a framework for planned urban development of the ODP area, providing a means for equitable sharing of costs of infrastructure and administrative costs between owners, and to ensure the timely provision of infrastructure. An extract of TPS 6 containing Parts 6 and 7, and Schedule 12 is contained as Attachment 22.
3.6 The Canning Vale ODP covers 469.53ha of land bound by Garden Street, Nicholson Road, Dumbarton Road, Campbell Road, Amherst Road and Warton Road.
3.7 The objective of the Canning Vale ODP is 'to provide a framework for the progressive and planned urban development of the ODP area.'
3.8 The ODP plan illustrates existing subdivision layouts, identifies zones, reserves, public school sites, areas for drainage, indicative road layouts and a 'Place of Worship Precinct' (formerly known as a Church Precinct following a modification in 2007).
3.9 The Place of Worship Precinct covers four parent lots along Warton Road (south-eastern portion of the ODP area). Three of the lots contained or had approval for a Place of Worship use prior to the ODP's adoption. It should be noted that the precinct does not extend for the full length of all the properties within the precinct. The ODP principle behind the 'Place of Worship Precinct' is covered by Clause 5.10 of the ODP text, which states the following:
The ODP Map recognises the existence of several religious institutions on land fronting Warton Road and provides for either the continuation of these uses or redevelopment for residential purposes.
- A plan showing the precinct is contained as Attachment 23.
3.10 State Planning Policy 3.6 - Development Contributions for Infrastructure (SPP 3.6) (gazetted 20 November 2009) sets out the objectives, measures and principles underlying the requirements for development contributions as well as a model for the Development Contribution Plans in which the detail for the application of contributions is to be provided for. It was accompanied by a Planning Bulletin (PB 100) which provided an explanation of SPP 3.6. SPP 3.6 represented a formalisation of draft model provisions for local planning schemes published by the Western Australian Planning Commission (WAPC) as Planning Bulletin (PB 41) in 2000. SPP 3.6 and the associated Planning Bulletin is contained as Attachment 24.
3.11 The Canning Vale DCP requires developing landowners to contribute to the cost of providing common infrastructure and public open space. Out of the 469.52ha of land in the ODP area, 76.24ha of that area has been excluded from being required to contribute to the DCP. The land which is excluded from contributing to the DCP includes land in the Place of Worship Precinct, existing road reserves, road widening, wetlands, school sites and commercial land. The Place of Worship Precinct, as mapped on the ODP, has been allocated a total of 6ha of land that is not required to contribute to the DCP.
3.12 The subject site was not designated as a 'Place of Worship Precinct', despite the facility being approved in 1998, and constructed in 2000, prior to the ODP's adoption. On 7 October 2013, the applicant wrote to the City and queried the reasons for this (prior to the lodgement of the current application for review), the City advised the following:
'The City has undertaken an extensive search of its records and has been unable to ascertain the reason for the creation of the Place or Worship Precinct and the reasons for Lot 123 not being included as part of this designation.'
- A copy of the applicant's letter and the City's response is contained as Attachment 25.
3.13 In reviewing the ODP, it became apparent that the 6ha figure does not accurately represent the actual land area as mapped on the ODP as forming the Place of Worship Precinct. Instead, it has been determined that the Place of Worship Precinct as mapped on the ODP comprises only approximately 5.45ha of land. As such, the DCPR has overestimated the amount of land that is exempt from contributing to the DCP by approximately 0.55ha.
3.14 The following table outlines whether contributions have been paid in association with subdivision or development of the lots within the Place of Worship Precinct, as well as those instances in which contributions have not been paid in respect of development outside the Precinct.
Original Lot Number | Development or Subdivision Undertaken | Contributions Paid for Land Outside PoW Precinct | Contributions paid for PoW Precinct |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As indicated in the table, former Lot 62 has undertaken subdivision over the whole site (including the portion within the designated Place of Worship Precinct). Former Lots 40 and 42 have maintained their existing places of worship on the portion of the site which fall within the Place of Worship Precinct, but have undertaken a residential subdivision on the remainder of their site. Lot 41 has not been subdivided, however some minor development relating to the existing place of worship use has been undertaken, including on areas which fall outside the Place of Worship Precinct. It should be noted that cost contributions were not collected for the minor development that occurred outside the Place of Worship Precinct.
- 3.15 It has been standard practice for lots within the Place of Worship Precinct to contribute to the DCA when residential development is undertaken, due to the demand that new urban development places on infrastructure, services and public open space. Given that former Lot 62 was completely subdivided for residential purposes, the City collected ODP contributions for the entire 1.2513ha of land within the Place of Worship Precinct designation. As such, the amount of exempted land (for DCP purposes) is adjusted to 4.1987ha (being 5.45ha, minus 1.2513ha).
3.16 Clause 6.4 - Development Contribution Areas of TPS 6 provides statutory parameters for the establishment of DCPs and DCPRs under the Scheme. Schedule 12 of TPS 6 contains the DCP created through the provisions of Clause 6.4 of TPS 6. This clause can be found in Attachment 17 (as previously referenced).
3.17 Clause 6.4.2 of TPS 6 stipulates the purpose of having development contributions areas is to:
(a) provide for the equitable sharing of the costs of infrastructure and administrative costs between owners; and
(b) ensure that cost contributions are reasonably required as result of the subdivision and development of land in the development contribution area; and
(c) coordinate the timely provision of infrastructure.
3.18 Clause 6.4.6 of TPS 6 outlines the guiding principles for DCPs, and stipulates that any DCPR for any DCP area should be prepared in accordance with the following principles:
(a) Need and nexus
The need for the infrastructure included in the plan must be clearly demonstrated (need) and the connection between the development and the demand created should be clearly established (nexus).
(b) Transparency
Both the method for calculating the development contribution and the manner in which it is applied should be clear, transparent and simple to understand and administer.
(c) Equity
Development contributions should be levied from all developments within a development contribution area, based on their relative contribution to need.
(d) Certainty
All development contributions should be clearly identified and methods of accounting for cost adjustments determined at the commencement of a development.
(e) Efficiency
Development contributions should be justified on a whole of life capital cost basis consistent with maintaining financial discipline on service providers by precluding over recovery of costs.
(f) Consistency
Development contributions should be applied uniformly across a development contribution area and the methodology for applying contributions should be consistent.
(g) Right of consultation and review
Owners have the right to be consulted on the manner in which development contributions are determined. They also have the opportunity to seek a review by an independent third party if they believe the calculation of the costs of the contributions is not reasonable.
(h) Accountable
There must be accountability in the manner in which development contributions are determined and expended.
(a) road designated under the Metropolitan Region Scheme as primary regional roads and other regional roads.
(b) existing public open space;
(c) existing government primary and secondary schools; and
(d) such other land as is set out in a development contribution plan.
3.20 Clause 6.4.13.2 stipulates an owner's liability to pay the owner's cost contribution to the local government arises on the earlier of:
(a) the Western Australian Planning Commission endorsing its approval on the deposited plan or survey strata plan of the subdivision of the owner's land within the development contribution area.
(b) the commencement of any development on the owner's land within the development contribution area;
(c) the approval of any strata plan by the local government or Western Australian Planning Commission on the owner's land within the development contribution area; or
(d) the approval of a change or extension of use by the local government on the owner's land within the development contribution area.
- 4.0 PLANNING FRAMEWORK - ODP MODIFICATION PROCESS
4.1 As previously mentioned, Part 7 of TPS 6 contains provisions relating to the preparation, approval and modification of ODPs. It contains statutory provisions relating to where an ODP is required, how an ODP is prepared, the adoption and approval process of an ODP, changes and/or departures from ODPs, and the appeal process of decisions made by the WAPC or Council relating to ODPs. Part 7 of TPS 6 can be found as Attachment 17 (as previously referenced).
4.2 Clause 7.5 of TPS 6 relates to changes or departures from ODPs. Clause 7.5.1 of TPS 6 stipulates:
The Council may adopt a minor change to or departure from an Outline Development Plan if in the opinion of the Council, the change or departure does not materially alter the intent of the Outline Development Plan.
4.3 When a request to modify an ODP is received by the local government, it needs to identify whether the change is a minor change or departure from an ODP. This determination is guided by Local Planning Policy 3.1 - Outline Development Plans (LPP 3.1). LPP 3.1 is contained as Attachment 26.
4.4 LPP 3.1 was adopted for the following reasons:
• To establish standards for the identification, assessment and determination of a minor change to or departure from an ODP pursuant to Clause 7.5 of TPS 6.
• To elaborate on the provisions of TPS 6 regarding a minor change to or departure from an ODP.
• To elaborate on the provisions of TPS 6 regarding land use classifications contained within an ODP.
• To establish standards for the assessment and determination of applications for planning approval and for making recommendations on subdivision applications in areas subject to a classification of 'Residential Density Greater than R17.5', 'Residential Density Greater Than R20' or 'Higher Density Node' on an ODP.
• To establish standards for the assessment and determination of whether a proposed ODP or proposed major change to an ODP is satisfactory for advertising, pursuant to Clause 7.4.2 of TPS 6.
4.5 Part 1 of LPP 3.1 provides guidance on whether a minor change to an ODP materially alters the intent of an ODP. Clause 3.3 of LPP 3.1 stipulates:
3.3 For the purpose of Clause 7.5 of TPS 6, a minor change to an ODP is considered to not materially alter the intent of the ODP is the change:
3.3.1 Is in accordance with the stated principles, aims and/or objectives of the ODP;
3.3.2 Would achieve a development outcome which is the same or similar in principle to that of the ODP;
3.3.3 In the opinion of the City, proposes a more appropriate development outcome than that identified in the ODP;
3.3.4 Relates to only a minor relocation or reorientation of proposed roads;
3.3.5 Only marginally varies the shape, size, function or location of public open space;
3.3.6 Only marginally varies the boundary and/or location of land use classifications and/or residential densities.
3.5 A proposed minor change to an ODP will be advertised for public comment in accordance with provision 3.6 of this Part, prior to being determined, except where:
3.5.1 The applicant submits 'no objection' forms/letters, or similar, from directly affected and immediately surrounding landowners, relevant authorities and/or other relevant persons or bodies to the satisfaction of the City; or
3.5.2 In the opinion of the City, the proposed minor change would not detrimentally affect the persons/parties stated in provision 3.5.1 above in the context of relevant planning considerations.
3.6 Advertising of a proposed minor change to an ODP will be conducted as follows:
3.6.1 Written invitation to comment on the proposal being sent to directly affected and immediately surrounding landowners, relevant authorities and/or other relevant persons or bodies as deemed necessary by the City.
3.6.2 The period within which comments may be submitted shall be at least 14 days, or such longer period as deemed appropriate by the City.
(a) The Council is to forward a copy of the minor change or departure to the Commission within 10 days from the date of adopting the minor change or departure.
(b) If the Commission considers that the change or departure adopted by the Council under clause 7.5.1 materially alters the intent of the Outline Development Plan, then the Commission:
(i) may require the Council to follow the procedures set out in Clause 7.4 in relation to the change or departure; and
(ii) is to notify the Council of this requirement within 10 days.
Any change to or departure from an Outline Development Plan that is not within clause 7.5.1 is to follow the procedures set out in clause 7.4.
4.9 Clause 7.8.2 of TPS 6 relates to a situation where an applicant is aggrieved by the determination under Clause 7.5.1 (refer to 4.2 above). Clause 7.8.2 stipulates the following:
The proponent may appeal in accordance with Part V of the Town Planning and Development Act 1928 any decision made by the Council under clause 7.5.1.
4.10 Clause 7.4 of TPS 6 relates to the adoption and approval of ODPs, and also by virtue of Clause 7.5.3, any change or departure from an ODP that is not within clause 7.5.1. For the purpose of this document, any change or departure from an ODP that is not within clause 7.5.1 will be referred to as a 'major modification'.
4.11 In accordance with Clause 7.4.2 of TPS 6, upon receiving a major modification to an ODP, Council is to either:
(a) determine that the Proposed Outline Development Plan is satisfactory for advertising;
(b) determine that the Proposed Outline Development Plan is not to be advertised until further details have been provided or modifications undertaken; or
(c) determine that the Proposed Outline Development Plan is not satisfactory for advertising and given reasons for this and to the Proponent.
In the event that Council does not make one of the determinations referred to in Clause 7.4.2 within 60 days of receiving the modification, Clause 7.4.3 of TPS 6 stipulates that the Council has then in effect deemed to have determined that the modification is not satisfactory for advertising.
4.12 Part 4 of LPP 3.1 establishes standards for the assessment and determination of whether a proposed ODP or proposed major change to an ODP is satisfactory for advertising, pursuant to Clause 7.4.2 of TPS 6. Clause 3.1 of LPP 3.1 stipulates that an ODP is considered satisfactory for advertising where the proposal:
3.1.1 Is consistent with TPS 6 and the Metropolitan Region Scheme;
3.1.2 Is generally consistent with relevant Local Planning Policies;
3.1.3 Is generally consistent with relevant Local Planning Strategies;
3.1.4 Is generally consistent with applicable broader ODP(s) or Structure Plan(s);
3.1.5 Is generally consistent with relevant State Government planning and related documentation including, but not limited to, relevant State Planning Policies, Development Control Policies, Regional Planning Strategies, District Structure Plans and any other plans, policies or strategies whether draft or finalised;
3.1.6 Demonstrates, in the opinion of the City, consistency with the principles of orderly and proper planning.
4.13 Clause 7.4.4 of TPS 6 relates to a situation where an applicant is aggrieved by the determination under Clause 7.4.2. Clause 7.4.4 stipulates the following:
(a) Where the Proponent is aggrieved by a determination of the Council under clause 7.4.2(b) or (c) or clause 7.4.3, the Proponent may request the Council by notice in writing to forward the Proposed Outline Development Plan to the Commission.
(b) Within 21 days of receiving notice from the Proponent under clause 7.4.4(a), the Council is to forward to the Commission:
(i) a copy of the Proposed Outline Development Plan.
(ii) details of the Council's determination including any modifications to the Proposed Outline Development Plan required by the Council; and
(iii) any other information the Council considers may be relevant to the Commission's consideration of approval of the Proposed Outline Development Plan for advertising.
- (d) If the Commission requires modifications to the Proposed Outline Development Plan, the Commission is to consult with the Council prior to making its determination under Clause 7.4.4(c).
(e) If within 60 days of receiving a Proposed Outline Development Plan under clause 7.4.4(b), or such longer period as may be agreed in writing between the Proponent and the Commission, the Commission has not made one of the determinations referred to in clause 7.4.2, the Commission is deemed to have determination that the Proposed Outline Development Plan is not satisfactory for advertising.
- 4.14 In the event that Council or the Commission has determined that a modification is satisfactory for advertising, Clause 7.4.5 of TPS 6 stipulates that Council is then required to:
(a) advertise, or require the Proponent to advertise, the Proposed Outline Development Plan for public inspection by one or more of the methods of advertising proposals for development as set out in clause 10.4 of the Scheme; and
(b) give notice or require the Proponent to give notice in writing to:
(i) all landowners affected by the Proposed Outline Development Plan; and
(ii) such public authorities and other persons as the Council nominates,
and such advertisement and notice are to explain the scope and purpose of the Proposed Outline Development Plan, when and where it may be inspected, and invite submissions to the Council by a specific date being at least 21 days from the date of the notice and advertisement.
4.15 In terms of advertising a major change or departure to an ODP, Clause 3.4 of LPP 3.1 stipulates that that advertising shall be conducted as follows:
3.4.1 Written invitation to comment on the proposal being sent to all directly affected and immediately surrounding landowners and relevant authorities and/or other persons or bodies as deemed necessary by the City.
3.4.2 An advertisement being placed in a local newspaper.
3.4.3 Display on the City's website.
3.4.4 Where deemed necessary by the City, placement of a sign on site, giving notice of the proposal.
4.16 Clauses 7.4.7 - 7.4.16 of TPS 6 outline the process for modifications to ODPs after advertising has occurred. As such, this includes the process of adoption by the Council and approval by the Commission.
Submissions
The applicant's submissions
46 The applicant submits the following to advance the contention that the proposal is a 'minor' change or departure from the ODP which may be and should be adopted pursuant to cl 7.5.1 of TPS 6:
1) The omission of the site as a 'Place of Worship Precinct' from the ODP approved by the WAPC in about 2001 was 'clearly' an oversight in the preparation of the ODP. The applicant's application is intended to remedy the oversight (submission 21 July 2014 summary; paragraphs 5, 6 and 7 and annexures 25 - letters between the parties dated 7 and 25 October 2013 respectively).
2) The respondent's past decisions have indicated that it has been prepared to deal with the applicant's applications for development of the site for worship related uses arbitrarily or inconsistently, and adoption of the proposal would prevent that occurring in the future (submissions 21 July 2014, summary and paragraph 47).
3) The proposal would place the site on an equal footing with the properties within the Place of Worship Precinct (submissions 21 July 2014 summary, paragraph 50).
4) The proposal does not materially alter the intent of the ODP (cl 7.5.1 of TPS 6) because the manner in which the respondent concedes it should treat the site and the manner in which it would treat the site if it were to be designated a Place of Worship Precinct are the same.
5) Whilst the applicant disputes the relevance of DCP contributions (submissions filed 21 July 2014 paragraph 43) to the question whether the proposal is within cl 7.5.1 of TPS 6, it submits:
a) The additional land that would be exempted from DCP contributions, if the site were to be designated a 'Place of Worship Precinct', from that allowed for in the DCP (6.0 hectares), is 0.2547 hectares and that additional area 'would result in a marginal increase in the noncontribution area' (submissions 21 July 2014, paragraphs 43 and 44).
b) If there is a shortfall in contributions caused by designation of the site as a 'Place of Worship Precinct', the shortfall could be met by the respondent itself or by landholders entering into agreement with the respondent to make additional contributions, or the respondent could borrow the shortfall. At the outset, the Tribunal rejects this proposition as it plainly ignores the fact that the outcome would be to move the obligation to pay DCP contributions from the applicant as a landowner of the site onto the respondent (and indirectly on to all other landowners of land within the ODP area) or other particular unidentified owners. This outcome, in the Tribunal's opinion, is the antithesis of what is intended by the ODP, which is to provide for longer term planning and development of land within the ODP area to give some certainty as to land use, and contributions towards the future costs of infrastructure and services associated with the expected land use and development.
47 The respondent submits the following propositions to advance the contention that it is not a 'minor' change to or departure from the ODP and is not one that is permitted by the terms of cl 7.5.1 of TPS 6:
1) Central to the operation of the ODP is the funding of infrastructure and services to complement or support and sustain the planned developments. The DCP identifies the basis of contributions by developers in the future to fund the future needs for infrastructure and services. Therefore, any change or departure from the ODP that has an impact on the planned funding of the future needs for infrastructure and services constitutes a change to or departure from the ODP. In this case, the respondent asserts that the area of the site, which the applicant seeks to be adopted as a 'Place or Worship Precinct', would become exempt from contributions and the current position is that this would have an impact on the raising of funds required for future infrastructure and services to support the future development of land within the ODP area.
2) The respondent asserts that the proposal would have a material impact on the intent of the ODP in that 2.0582 hectares would be removed from the ODP area from which the respondent had expected the future cost of infrastructure and services to be drawn.
3) The respondent asserts that in order to diminish the future financial impact on the respondent (and the community represented by the respondent) by the site being designated as a 'Place of Worship', the respondent must:
a) First, change or depart from the ODP (ODP Map in particular) by reducing the total land area that is the subject of the current Place of Worship Precinct on Warton Road to exclude those areas that are not currently used as a Place of Worship, or for associated or ancillary purposes.
b) Secondly, modify the proposal by designating only part of the site that is currently used as a Place or Worship or for purposes ancillary thereto as a Place of Worship Precinct.
c) Thirdly, change or depart from the ODP (ODP text in particular) to clarify the circumstances when DCP contributions will be payable in the case of development or subdivision of land within a 'Place or Worship Precinct' and when DCP contributions will not be payable and how any DCP contributions will be calculated.
Consideration
49 The applicant's submission that the failure to designate the site as a Place of Worship in the ODP was an oversight is:
a) not supported by any facts; and
b) not relevant.
50 The respondent in its responsive submissions filed 6 August 2014 at paragraph 5, contends that the mere fact that no document recording the reasons for the omission of the site as a Place of Worship in the ODP could be located, does not give rise to an inference that the omission of the site as a Place or Worship in the ODP occurred by way of oversight. The Tribunal agrees with that proposition.
51 The respondent, at paragraph 5 of its responsive submissions filed 6 August 2014, asserts as a fact:
Extensive advertising and consultation was undertaken prior to the establishment of the ODP, DCP and DCPR. Council's records indicate that landowners of lot 123 did not provide a submission requesting inclusion in the Place of Worship Precinct.
52 This is a fact from which the, respondent seeks to imply a possible reason why the site was not designated as 'Place of Worship Precinct' in the ODP. The quoted asserted fact has not been proved and has not been agreed. The Tribunal cannot therefore find as a primary fact that the applicant failed to advance submissions for the site to be designated as a 'Place of Worship' site in the ODP. If the respondent intended to advance such a fact, it was obliged to adduce evidence of the primary fact asserted, or obtain the applicant's agreement as to that fact. The Tribunal does not draw any inference in favour of the respondent, as submitted, to explain the reasoning behind the omission of the site as a Place or Worship from the ODP.
53 However, the Tribunal does not draw any inference in favour of the applicant that the omission of the site as a Place or Worship from the ODP was an oversight.
54 In any event, whether the site should have been included or not as a 'Place of Worship Precinct' in the ODP, for whatever reason, does not render the proposal to now include the site as a 'Place of Worship Precinct' in the ODP, a 'minor' change to or departure from the ODP. An oversight might be a significant oversight or might have a significant (or more than material) impact on the intent of the ODP and as such, it cannot be adopted pursuant to cl 7.5.1 of TPS 6.
55 The ODP comprises the ODP Map, the ODP text and the DCP, which is revised annually. The ODP text provides:
2. Content of the ODP
… the ODP is comprised of the following:
• ODP Map
• ODP Text
• Schedule of Common Infrastructure Works
The ODP text should be read in conjunction with the ODP MAP and the provisions of TPS 6.
Where there is any inconsistency between the ODP text and TPS 6, the provisions of TPS 6 shall prevail.
3. Purpose of the ODP text
The purpose of the ODP text is to detail the principles upon which the ODP has been formulated and the manner in which the ODP will be applied by the City when considering applications for subdivision or development of land in the ODP area.
4. Objective of the ODP
5. The main objectives of the ODP is to provide a framework for the progressive and planned urban development of the ODP area.
56 TPS 6 relevantly provides:
PART 7 - OUTLINE DEVELOPMENT PLANS
7.1 PURPOSE
(a) To require an Outline Development Plan for areas zoned Development, Residential Development or Business Development where the Council determines there is a need for comprehensive planning prior to subdivision, development and use of land within the area covered by the plan.
(b) To require an Outline Development Plan in any zone where the Council identifies the need for a framework to coordinate subdivision, development and use of land due to fragmented land ownership or other matters that may impact the orderly and proper planning of an area.
(c) For the adopted Outline Development Plan to constitute the basis for the orderly and coordinated subdivision, development and use of land within the area covered by the plan.
7.2 PLANNING REQUIREMENTS
…
7.2.3 Where there is an adopted Outline Development Plan, the subdivision and development of land is to generally be in accordance with the adopted Outline Development Plan and the provisions contained in Schedules 10 (Environmental Conditions) and 12 (Common Infrastructure Provisions), shall, as applicable, be complied with.
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58 In addition to the ODP being expressed to include the 'Schedule of Common Infrastructure Works' (which is the essence of the DCP and the DCP report as provided by cl 6.4 of TPS 6), cl 7.2.3 and Sch 12 of TPS 6 provide that the DCP is to operate 'in association' with the ODP. The Tribunal concludes that the TPS 6 and the ODP expressly provide that the ODP text, the ODP Map and the DCP are to be read together. It is these three documents from which the intent of the ODP is to be discerned. Therefore, a change to or departure from the DCP will have an impact on the intent of the ODP. The question is whether it is a 'material' impact on the intent of the ODP.
59 The DCP, last revised in July 2014, provides an estimated budget for such works, and the area of land able to be used to derive contributions to those estimated costs excludes the 6.0 hectares allocated to the current Place of Worship Precinct on Warton Road. The DCP, as at July 2014, calculates the contributions per hectare as $59,049 by reference to the area of land from which the respondent expects to be paid contributions when the liability for payment is triggered. This per hectare figure is arrived at by undertaking a calculation of the expected total future infrastructure and services costs of the ODP area and dividing that figure by the area of land from which the respondent expects to receive contributions towards such costs. The DCP excludes 6.0 hectares associated with the Place of Worship Precinct ('Church Precinct') from the ODP area when undertaking the calculation. Put shortly, the cost of the future infrastructure and services for the ODP area will fall on the shoulders of the landowners of 354.89 hectares of the total 469.53 hectares of land within the ODP area, after excluding land committed to existing road reserves, future road widening, schools, public open space, future reserves for public open space and the Place of Worship Precinct.
60 The Tribunal finds that the current Place of Worship Precinct on Warton Road comprises 5.157 hectares of the ODP area. The respondent has over allocated for the current Place of Worship Precinct on Warton Road by 0.843 hectares in the DCP 2014 (6.0 less 5.157 hectares). However, the proposal would see the DCP to have underallocated for Place or Worship Precincts by 1.739 hectares.
61 The respondent asserts that notwithstanding that its estimate for the Place of Worship Precinct of 6.0 hectares is not fully committed at the moment, the addition of a further 2.058 hectares as a Place of Worship Precinct places an increased burden for contributions on the landowners of the land currently planned to carry the burden of contributions for future infrastructure and services. It is obvious that as the cost of future infrastructure and services increase, that burden will become greater as seen in the difference in estimated future costs between June 2013 and June 2014. The respondent asserts such an increased burden is inequitable.
62 Based upon the express words of the ODP text and cl 7.3 and Sch 12 of TPS 6, the intent of the ODP is interpreted to provide for a concrete basis for the progressive and coordinated development of the land within the ODP area, which includes a formulaic basis for meeting the anticipated future costs for infrastructure and services to accompany the future development of the land within the ODP. It is necessary to include the DCP aims and projections when considering the intent of the ODP. The Tribunal concludes that it is relevant, and indeed necessary, to consider:
a) the projected contributions referred to in the DCP; and
b) whether any proposed change to or departure from the ODP will impact on those projected contributions,
63 when considering whether the proposed change to or departure from the ODP materially alters 'the intent' of the ODP or not for the purposes of cl 7.5.1 of TPS 6.
64 As to whether the proposal alters the intent of the ODP, the Tribunal concludes that it does, because the effect of the change would be a surcharge of contributions on other landowners of developable land within the ODP area, but it will remove from the ODP area 2.058 hectares of land that was zoned for residential use. The effect is that residential development of the site will not be permitted unless, in the future, the respondent exercises its discretion by granting planning approval after giving special notice in accordance with cl 10.4 of TPS 6 (see item 55, of Table 1 TPS 6). The fact that the applicant as the current owner of the site states that it currently has no intention of developing any part of the site for residential use is not relevant when determining the intent of the ODP. The applicant's statement is relevant to the applicant's stated current intent, not the intent of the ODP.
65 The submission that the applicant's stated current intention is relevant to the ODP is inconsistent with the long term planning purpose evinced by the ODP. The purpose of the ODP is to settle upon a long term vision and plan for the ODP area which is not subject to individual landowner's plans that will inevitably change over shorter periods of time. The Tribunal notes that the applicant did in 1998 hold the intention of developing part of the site as a community hall and aged care facility or residential facility, and the applicant's intention as to use of the land has apparently changed since that date.
66 The applicant contends that as the respondent has agreed with the applicant to 'treat' the applicant and the site as of or on an equal footing with the landowners of the land within the Place of Worship Precinct on Warton Road, the position should be formalised by designating the site a 'Place of Worship Precinct'. The basis of the respondent's agreement referred to above and the discretion vested in the respondent to make such an agreement is not the issue before the Tribunal. The fact of the agreement is not relevant to whether the proposal constitutes a 'minor' change to or departure from the ODP in the sense referred to in cl 7.5.1 of TPS 6. The Tribunal considers, however, that this submission is relevant to what determination should be made pursuant to cl 7.4.2 of TPS 6. As to the applicant's submission that it is beneficial to the applicant for the site to be designated a 'Place of Worship Precinct', again, it is not relevant to the central issue before the Tribunal of whether the proposal is a 'minor' change to or departure from the ODP in the sense referred to in cl 7.5.1 of TPS 6. Again, the Tribunal considers that this submission is relevant to what determination should be made pursuant to cl 7.4.2 of TPS 6.
67 For these reasons the Tribunal concludes that the proposal is not a minor change to or departure from the ODP within the meaning of that expression in cl 7.5.1 of TPS both as to the Map and the DCP. Accordingly the Tribunal shall affirm the implicit decision made by the respondent that the proposal is not one that may be adopted by the respondent pursuant to cl 7.5.1 of TPS 6.
68 As to the question whether the respondent made the correct and preferable decision in determining that the proposal was not satisfactory for advertising pursuant to cl 7.2.4(c) of TPS 6, the respondent contends:
a) The whole of the site should not be designated a 'Place of Worship Precinct' because the whole site is not currently used for Worship or associated or ancillary uses, and that 0.7082 hectares should be excluded from any 'Place of Worship Precinct' designation of the site. This modification, along with the respondent's other proposed modifications, will assist in minimising the impact on the future contributions pursuant to the DCP.
b) In order to make allowances for the additional land that will be excluded from DCP contributions in the future, and to minimise the financial burden on other landowners in the ODP area, the respondent contends that it must first reduce the current Place of Worship Precinct on Warton Road from that area identified in the ODP Map (approximately 5.1578 hectares) to 4.2365 hectares, and limit the current Place of Worship Precinct on Warton Road to the area of the lots in question (40, 41, 42 and 62) which is currently used for Worship or associated or ancillary purposes.
c) The ODP text is to be modified to reflect the respondent's current intention (expressed as 'principles') to:
i)exclude from DCP contributions any development of the land within a 'Place of Worship Precinct' that is used for worship or associated or ancillary uses; and
ii) to recover DCP contributions when the land within any 'Place of Worship Precinct' is the subject of subdivision or development that is not for worship, or associated or ancillary purposes, and that such contributions shall be calculated by reference to the spatial extent of the subdivision or development (and not as was proposed in 12 February 2013in relation to the whole site).
70 However, the respondent is empowered by cl 7.4.1 of TPS 6 to generate a proposal for a change to the ODP. The applicant is not as well placed as the respondent to modify its proposal in such a way as to cut across the current rights that the landowners of Lots 40, 41, 42 and 62 have in relation to the current Place of Worship Precinct on Warton Road. That change to the ODP is really one that the respondent seeks to make to the ODP Map. The change to the text proposed by the respondent is entirely to clarify when the respondent intends for DCP contributions to be made by landowners within any Place of Worship Precinct and, in truth, the respondent's suggested change to the ODP text and the ODP Map is designed to perfect an imperfect regulatory scheme that is within the respondent's power to advance and prosecute. The Tribunal notes that the respondent was or should have been aware that it had granted approval in 1998 for the development of the site for 'Place or Worship' and associated or ancillary uses and the failure to build that existing fact into the ODP should be borne by the respondent to some extent. The modifications to the proposal called for by the respondent referred to in b) and c) above can be made by the respondent and in circumstances in which the respondent has made the concession that it intends to treat the applicant on the same footing as the landowners within the Place of Worship Precinct on Warton Road the Tribunal considers that the burden of changing or departing from the ODP so that it conforms to what has actually been agreed to by the respondent should rest on the respondent.
71 As to the respondent's modification to the proposal referred to in a) above, the Tribunal can see no good reason why that should not remain. It is entirely consistent with the respondent's current long term intentions and with all past approvals for development of the site. Whilst the Tribunal considers that the applicant's submissions that the change would be beneficial and would regularise the ODP Map so as to coincide with the reality created by the respondent's past approvals and its recent concession to treat the site on the same footing as the current Place of Worship Precinct are not relevant to whether the proposal is a 'minor' change to or departure from the ODP, these facts are relevant to how the Tribunal should determine the proposal pursuant to cl 7.4.2 of TPS 6. A determination under cl 7.4.2(c) of TPS 6 because the respondent must advance its proposals for change to or departure from the ODP as identified in b) and c) above, may not ever see the changes to the ODP take place. This would be inequitable to the applicant. If a determination is made pursuant to cl 7.4.2(b) of TPS 6 in terms of requiring the applicant to modify its proposal in terms of the respondent’s desired modification a) above, the applicant will have the opportunity of achieving the change via the process afforded by cl 7.4 of TPS 6 which may be supplemented by a proposal for change by the respondent.
Conclusion
72 For the reasons expressed above, the Tribunal concludes that the respondent did make the correct and preferable decision in this matter on 25 February 2014 in deciding that the proposal was not a 'minor' change or alteration to the ODP and that it was obliged to consider the proposal pursuant to cl 7.4 of TPS 6. That decision shall be affirmed.
73 For the reasons expressed above, the Tribunal concludes that the respondent did not make the correct and preferable decision in this matter on 25 February 2014 in determining that the proposal was not satisfactory for advertising until various modifications were made purportedly pursuant to cl 7.4.2(b) of TPS 6. That decision shall be set aside upon the basis that it was an incorrect exercise of cl 7.4.2(b) of TPS 6 and that the correct and preferable decision is one made pursuant to cl 7.4.2(b) of TPS 6 that the proposal is not to be advertised until the applicant modifies the proposal by reducing the area of the proposed Place of Worship Precinct on the site to coincide with the existing and current development of the site.
Orders
1. Upon review:
(a) Pursuant to s 29(3)(a) of the State Administrative Tribunal Act 2005 (WA), the respondent's decision that the applicant's proposed change to or departure from the Canning Vale Outline Development Plan made on 19 March 2013 is not a minor change to or departure from the Canning Vale Outline Development Plan within the meaning of cl 7.5.1 of the City of Gosnells Town Planning Scheme No 6, is affirmed.
(b) Pursuant to s 29(3)(c) of the State Administrative Tribunal Act 2005 (WA), the respondent's decision made on 25 February 2014 is set aside.
(c) Pursuant to s 29 (3)(c) of the State Administrative Tribunal Act 2005 (WA), the Tribunal determines pursuant to cl 7.4.2(b) of the TPS 6 that the applicant's proposed change to or departure from the Canning Vale Outline Development Plan made on 19 March 2013 is not to be advertised until the applicant undertakes modification to its proposal by reducing proposed Place of Worship Precinct to that portion of Lot 123 Shreeve Road that coincides with the existing and current development of Lot 123 Shreeve Road.
I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS N OWEN-CONWAY, MEMBER
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