STARWORLD HOLDINGS PTY LTD and CITY OF MELVILLE - [2005] WASAT 86

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928

CITATION: STARWORLD HOLDINGS PTY LTD and CITY OF MELVILLE [2005] WASAT 86

MEMBER: MS B MOHARICH (MEMBER)

HEARD: 15 MARCH 2005

DELIVERED : 28 APRIL 2005

FILE NO/S: RD 317 of 2004

BETWEEN: STARWORLD HOLDINGS PTY LTD
Applicant
AND
CITY OF MELVILLE
Respondent

Catchwords:

Town planning - Development - Plot ratio - Calculation of plot ratio - Further development increasing plot ratio - Imposition of condition - Validity

Legislation:

State Administrative Tribunal Act 2004 (WA), s 83

Town Planning and Development Act 1928 (WA)

Result:

1. Appeal allowed
2. Condition 20 is deleted from the planning approval

Category: B

Representation:

Counsel:

Applicant: Mr M Hardy
Respondent: Mr C Slarke

Solicitors:

Applicant: Hardy Bowen
Respondent: McLeods

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

Beer v South Australian Planning Commission (1988) LGRA 159
Bunbury Industrial Park Pty Ltd v State Planning Commission (unreported, Appeal No.12 of 1994, published 25 November 1994)
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; 54 LGRA 110
Jetcove Pty Ltd v City of Melville [2003] WATPAT 89
Keenan v City of Port Lincoln (1986) 61 LGRA 58
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Rutland v Shoalhaven City Council (1997) LGERA 370
Twenty Seven Properties Pty Ltd v District Council of Noarlunga (1975) 11 SASR 188; 32 LGRA 407

Case(s) also cited:

Nil

MS B MOHARICH (MEMBER)
REASONS FOR DECISION

This appeal relates to a condition of planning approval imposed on the approval of an application for development of an apartment building on land at Applecross.
By order of the Tribunal at the directions hearing, the parties have provided the Tribunal with a comprehensive statement of agreed facts, which sets out the background of the appeal:
"1.The Applicant is the owner of the property situated at 13 Tweeddale Road, 26 Kintail Road and 26A Kintail Road, Applecross ("the Land").
2.The Land is comprised in:
(a) Lot 1057 on Plan 4990; and
(b) Strata Plan 822.
3.Lot 1057 has frontage to Tweeddale Road and Strata Plan 822 has frontage to Kintail Road.
4.By an application lodged on 6 July 2004 the Applicant sought approval pursuant to the provisions of the City of Melville Community Planning Scheme No. 5 ("the Scheme") for approval to commence development of a 5 level apartment building containing 7 residential units, fronting Tweeddale Road, and 2 x 2 storey commercial office buildings fronting Kintail Road ("the Initial Plans").
5.The Initial Plans did not comply with the Scheme requirements in connection with plot ratio and building height.
6.Subsequently the Applicant on 29 September 2004 submitted amended plans which amongst other things deleted the 2 x 2 storey office building fronting Kintail Road, instead depicting the relevant area as fully landscaped private gardens ("the Modified Plans"). The Modified Plans also reduced the height of the apartment building.
7.The Modified Plans comply with the provisions of the Scheme in all material respects.
8.By an approval dated 8 November 2004, but which was the subject of a determination on 19 October 2004, the Respondent approved the Modified Plans subject to conditions, including condition 4 in the following terms:
'In order to ensure a future subdivision of the land does not inappropriately enable the owner/applicant at a later time to further develop the land with an effective plot ratio which is excessive when calculated over the whole of the land, the owner/applicant shall enter into an agreement prepared by the City of Melville's solicitors at the cost of the owner/applicant, which agreement will be to the effect that the subject land cannot be subdivided without prior approval of the Council. The agreement shall, at the discretion of the Council, take the form of a restrictive covenant registered over the land, as recommended by the City of Melville's solicitors.'
9.The total area of the Land is 2024m².
10.The plot ratio of the development the subject of the Modified Plans is 0.6:1.
11.The Land falls within the "Canning Bridge Frame" identified in the Scheme, and has a residential density coding of R50."

Purpose of Condition

It should be noted that the condition is incorrectly referred to in the statement of agreed facts as condition 4. It is in fact condition 20. As stated in condition 20 itself, the respondent explained that the reason for the condition's imposition is to ensure that subdivision cannot occur, without the approval of the respondent, which would bring the lot on which the apartment building is located into non-compliance with the plot ratio standards set out in the City of Melville's Community Planning Scheme No.5 ("the Scheme").
Plot ratio is defined in Schedule 1 of the Scheme by reference to the Residential Planning Codes, now the Residential Design Codes ("the Codes"). The Codes define plot ratio to mean:
"The ratio of the gross total of the area of all the floors of buildings on a site to the area of land within the site boundaries."
The Codes also define the meaning of "site", in relation to a multiple dwelling, (which is how the apartment building is defined for the purpose of the Codes) as
" … the lot (or parent lot where the lot is subdivided under strata title) on which the dwellings stand."
The effect of allowing further subdivision of the Land would be to bring the apartment building into non-compliance with plot ratio as set out in the Scheme. In relation to any new lot created, it would reinvigorate the capacity of that new "site" to be developed separately to the maximum allowable plot ratio in the Scheme.
The condition requires that subdivision cannot occur "without the prior approval of the Council". This effectively means that, even if the Western Australian Planning Commission ("WAPC"), the decision maker in relation to subdivision under the Town Planning and Development Act 1928 (WA), approved the subdivision, new titles could not issue until such time as the restrictive covenant was lifted.
In this way, the condition does not place a fetter on the decision making power of the WAPC, although it effectively stops the implementation of that decision unless approved by the Respondent.
The existence of a restrictive covenant, or agreement evidenced by an instrument lodged on a certificate of title is not an uncommon phenomenon. Restrictive covenants are often created between landowners to ensure a particular built form of development, or to preclude the land from being used for particular activities. The question in this case is whether it is an appropriate condition to be imposed on a planning approval for a development of this nature.
The test of validity of a condition of planning approval is well known: Newbury District Council v Secretary of State for the Environment [1981] AC 578. A condition is valid if:
1.it has a planning purpose;
2.it fairly and reasonably relates to the development; and
3.it is not so unreasonable that no reasonable planning authority could have imposed it.
In this appeal, it is the second test, that condition 20 "fairly and reasonably relates to the development" which is relevant.
In most cases, this test requires an assessment as to whether the condition is related to work required because of the existence of the subdivision, such as in the case of Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; 54 LGRA 110.
However, in this case, the condition to be assessed is not generated by the actual physical development on the land itself, but by the possibility or likelihood of further things happening on the land.
In the decision of Rutland v Shoalhaven City Council(1997) LGERA 370, the NSW Land and Environment Court looked at whether an existing constraint similar to condition 20 should be taken into account in a further application for subdivision. His Honour Bignold J noted:
" … I am unpersuaded by the applicant's argument that such an approach is repugnant to the operation of the EP&A Act inasmuch as it unreasonably and unfairly fetters present and future actions under that Act by according supremacy to past actions under that Act. Translated to terms more meaningful to the present case, the applicant asks why should the development consent operate as a fetter upon the applicant's entitlement to seek a fresh consent to subdivide the subject land in the manner proposed ... The applicant's argument has superficial appeal, for it is axiomatic in planning law (i) that there can co-exist, in respect of any parcel of land, a multiplicity of development consents; (ii) that generally speaking, it is not relevant to the determination of a development application that there exists in respect of the same land either a number of existing development consents (for diverse or the same or similar developments to that for which consent is now sought); and (iii) that generally speaking, the grant of development consent will constitute a fresh chapter in the planning history of a development site.
Despite these established axioms of planning law, the fundamental weakness in the applicant's argument is that it fails to appreciate that the very legal existence of the subject land … depends upon the development consent which itself is predicated upon the stipulation that the subject land be not further subdivided."
The decision of Rutland (supra) was looking at a further subdivision of land where a condition similar to condition 20 had been imposed by an earlier subdivision approval. Therefore, the validity of the condition was not directly in question however there does appear to be an acceptance of such a condition.
In the decision of Beer v South Australian Planning Commission (1988) LGRA 159, the Supreme Court of South Australia looked at the imposition of conditions on planning approvals that had the effect of intruding into other statutory authorities' jurisdictions:
"The primary question with which planning authorities are concerned is the question of land use, whether a proposed development, including a change of use, is compatible with the relevant provisions in the Development Plan and the orderly and proper planning of the locality. It is only when that question has been answered in the affirmative that the authority should concern itself with questions of management, and indeed there has been an alarming trend on the part of some planning authorities to use planning conditions to bring the management of the land, once planning approval has been given, under planning control and in some cases thereby usurp the functions of other government or semi-government authorities."
The question of whether a condition is temporally relevant was canvassed by the Tribunal in Bunbury Industrial Park Pty Ltd v State Planning Commission (unreported, Appeal No.12 of 1994, published 25 November 1994).
"In this case, the condition as to sewerage would be invalid as being unrelated temporally to the project as it is in regard to the possibility of future re-subdivision that is not before the State Planning Commission. It may be that the State Planning Commission will not give approval to the subdivision or a super lot, the land could be sold as one entity or economic or other circumstances make subdivision of one or more lots impossible. The condition proposed is grounded and only has meaning on the basis of the occurrence of a series of events that may not happen. As a result, it would be invalid and is not therefore capable of being imposed.
A similar concept is analysed in Keenan v City of Port Lincoln(1986) 61 LGRA 58 in reliance on the decision in Twenty Seven Properties Pty Ltd v District Council of Noarlunga(1975) 11 SASR 188; 32 LGRA 407. In that case a condition was related to the availability of a carpark not yet built. The decision determined, and this Tribunal accepts, that a condition cannot be linked to the future occurrence of an event."
In this case, condition 20 is not imposing a condition linked to a future event, but is even further removed, by seeking by way of a condition, to avoid a future event, that is, to ensure that if a subdivision was to go ahead, that it could go ahead only if the applicant/owner was not able to "inappropriately further develop the land with an effective plot ratio which is excessive when calculated over the whole of the land".
The need for a condition of this nature may be generated by the respondent's concerns regarding the likelihood of the WAPC approving the future subdivision of the land. In this regard, I make reference to cl 3.5.2 of the WAPC's Development Control Policy 1.1, which provides:
"The WAPC will ensure that, by creating a new lot, it does not render an existing lot or development upon that lot illegal in terms of statutory requirements. Such matters may include lot sizes, car parking, setbacks or the provision of services."
It appears to me in this case that the condition does not fairly and reasonably relate to the development approval as it seeks to maintain strict compliance with the development standards in the Scheme into the future, rather than relating to the development being approved. To the extent that Rutland (supra) is relevant, the condition does not need to be imposed to ensure the legal existence of the development – any subsequent "planning chapters" can be dealt with on their merits, without affecting the legality of the development.
It is my view that condition 20 proposes more than the mere management of the development into the future, and as put by Jacobs J in Beer (supra), appears to, if indirectly, "usurp the functions of other government … authorities".
To allow a condition of this nature, in my view, would justify similar conditions on any development approval where the land in question remains subdivisible, and where that further subdivision may render a development approval previously granted at odds with the development standards in the Scheme. This is not a desirable outcome.

Planning Outcome

The issue of the planning outcome achieved by this approval was not before the Tribunal. It was agreed by the parties, however, that the proposed development leads to a somewhat unusual planning outcome.
The Codes use plot ratio as a means of controlling building bulk:
"Plot ratio is an indirect form of density control, although it is a relatively effective means of controlling building bulk, which is its main purpose in the Codes."
The Tribunal, in the decision of Jetcove Pty Ltd v City of Melville [2003] WATPAT 89 made the following comment about the application of plot ratio:
"In the view of this Tribunal 'plot ratio' is an independent planning control that operates in practice in conjunction with other planning controls such as building height and setbacks. All three operate to control scale and bulk."
In this case, there is no contention that the height and setbacks of the apartment building comply with the requirements in the Scheme. In addition, the seven proposed residential units is well below the eleven allowed under the R50 coding of the lots.
It therefore begs the question how the condition is relevant to the proposed development. Regardless of whether the land is further subdivided, the respondent has approved the apartment building, and its built form will remain regardless of the subdivision. If the purpose of plot ratio is as a means of controlling building bulk, then imposing the condition does not control building bulk along Tweeddale Road. The built form of the apartment building will remain. The respondent's argument is that the condition will, however, help to control the overall development on the land, by stopping the subdivision of the garden area of this proposal, which would then be able to be separately calculated in relation to plot ratio, resulting in the exceeding of the plot ratio when calculated over the apartment building lot and the garden lot. Again, however, the outcome, from a planning perspective is unusual. The hiatus of the built-up streetscape on Kintail Road caused by a garden area could not be considered to be orderly and proper planning for the locality.
The problem in this case, it seems, is a Scheme which allows a building in the context of its height and setbacks (therefore seeming to contemplate a building of a particular size), and does not seek to limit plot ratio by requiring it to be calculated using the lots sizes within the existing lot configuration in the area.
For the foregoing reasons, the Tribunal makes the following orders:
1.Appeal allowed.
2.Condition 20 is deleted from the planning approval.
Result amended pursuant to s 83 of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding nine pages comprise the reasons for decision of the State Administrative Tribunal.

_______________________________
Ms B Moharich
Member