Stock and Shire Of Victoria Plains
[2005] WASAT 347
•23 DECEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: STOCK and SHIRE OF VICTORIA PLAINS [2005] WASAT 347
MEMBER: MR J JORDAN (MEMBER)
HEARD: 21 OCTOBER 2005
DELIVERED : 23 DECEMBER 2005
FILE NO/S: DR 533 of 2005
BETWEEN: MICHAEL STOCK
Applicant
AND
SHIRE OF VICTORIA PLAINS
Respondent
Catchwords:
Development - Erection of relocated house on residential lot - Planning application called for by local authority - Town planning scheme does not require planning approval - Application of policy requiring planning approval - Policy inconsistent with town planning scheme - Town planning scheme prevails
Legislation:
Residential Planning Codes of Western Australia 1991 (WA)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i)
Town Planning and Development Act 1928 (WA), s 57(3)
Result:
The planning approval purportedly granted for the erection of the dwelling on Lot 183, George Street, Bolgart, is set aside. No planning approval need be applied for and obtained for the erection of the dwelling on this residential zoned lot under Town Planning Scheme No 4
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr Paul Bashall
Solicitors:
Applicant: Self-represented
Respondent: As Agent
Case(s) referred to in decision(s):
Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of decision
Mr Michael Stock wants to erect a dwelling by joining the two parts of an existing house transported to residential zoned lot 183 George Street, Bolgart. The house would be erected on stumps, reclad and connected to services.
Under the Shire of Victoria Plains Town Planning Scheme No 4, planning approval is not required to be obtained for the erection of a single dwelling in a residential zone. The Shire adopted a policy that does require planning approval for moveable buildings, because it is concerned about the standard of some of them.
The scheme, however, provides that if a policy is inconsistent with the scheme, the scheme prevails and there is legal support for this in decided cases.
The Tribunal has therefore found that the Council had no power to require that planning approval be applied for and obtained and because no planning approval is required, the planning conditions are not validly imposed.
Application
Mr Michael Stock (applicant) applied for review of conditions imposed by the Shire of Victoria Plains (respondent) on a planning approval dated 19 July 2005, granted for the relocation of a dwelling to lot 183 George Street, Bolgart.
Condition 3 of the conditions the applicant is seeking to have reviewed required the lodgement of a bond or bank guarantee to be returned when all of the works set out in a works schedule were completed. The works schedule included:
"1)Relocate the dwelling to the approved position, rejoin the sections and install stumps under;
2)Rewire dwelling and connect power;
3)Install septic system, internal plumbing and connect to water supply;
4)Reline sleep out, bathroom, laundry, wc and external walls with new hardiflex sheet or other approved material."
Is planning approval required?
In considering this matter, the Tribunal has found that there first needs to be answered the question of whether a planning approval is required for the development in question.
This development is considered by the Tribunal to comprise the erection of a dwelling, however it might otherwise be labelled. This is because the development involves the relocation, from the metropolitan area by truck, of two halves of a previously constructed dwelling and then placing them on lot 183 and, as noted in the works schedule, the sections must be joined, placed on stumps, reclad and connected to the water and electricity systems. These are the actions of re erecting the dwelling on lot 186. This form of erection is different from constructed from scratch with loose building materials, but it is not considered it would be of assistance if different forms of erection were identified. From the process involved, the Tribunal is satisfied that the proposed dwelling is being erected on the site.
The Shire of Victoria Plains Town Planning Scheme No 4 (TPS 4) has no definition of dwelling, but incorporates by reference the provisions of the Residential Planning Codes, which at the time of the gazettal of TPS 4 in 1999 were the Residential Planning Codes of Western Australia 1991 (R Codes). In the R Codes is the definition:
"dwelling means a building or portion of a building being used or intended, adapted or designed to be used for the purpose of human habitation on a permanent basis by –
·A single person,
·A single family, or
·No more than six (6) persons who do not comprise a single family."
Lot 83 is zoned Residential in TPS 4. In Table 1 – Zoning Table of TPS 4 under the column for the Residential zone there is cross‑referenced the use class "Dwelling" with the symbol "P".
TPS 4 provides at "Part 4 – Use and Development of Land":
"4.1 Requirement for Planning Approval
(1)In order to give full effect to the provisions and objectives of this Scheme, all development, including a change in the use of land, except as otherwise provided, requires the prior approval of the Council in each case. Accordingly, no person shall commence or carry out any development, including a change in the use of any land, without first having applied for and obtained the Planning Approval of the Council pursuant to the provisions of this part.
(2)The Planning Approval of the Council is not required for the following development of land –
…
(g)The erection on a lot of a single dwelling house including ancillary outbuildings, in a zone where the proposed use is designated with the symbol "P" in the cross reference to that zone, unless specific provisions of the Scheme requires the express approval of Council.
(3)Notwithstanding that a single house does not require the prior approval of the Council pursuant to the Scheme, any person who wishes Council to vary any particular provision of the R‑Codes relating to the erection of a single house shall, at the time of lodging an application for a building license, or earlier, apply in writing to Council, seeking Council's approval for the variation…"
In this instance, it is proposed that a single dwelling be erected on a lot in a Residential zone where the proposed use has the designation "P". Under the provisions of TPS 4, cl 4.1(2)(g) the development proposed does not require planning approval. An exception to this in cl 4.1(2)(g) is where specific provisions of TPS 4 require express approval of the Council. There are no such provisions in TPS 4. Another exception is found at cl 4.3 where approval is required if the requirements of the R Codes are to be varied. The development applied for does not require any such variation.
The respondent's position
At the commencement of the hearing the provisions of cl 4.1 were put to the respondent's agent, Mr Paul Bashall, a planning consultant. Mr Bashall acknowledged cl 4.1, but submitted that the respondent was relying upon cl 8.6 of TPS 4, which provides that the respondent may prepare policies related to planning and development in the Shire. He said the respondent had prepared a policy on moveable buildings being relocated to the town, which includes second hand dwellings as in this instance, because of past problems with second hand materials, failure to complete the development in a satisfactory manner and adverse impact on visual amenity.
Mr Bashall said the respondent had adopted policy 3.1.3 "Moveable Buildings" (policy) on 16 December 2003, after completing the prescribed steps set out in 8.6 of TPS 4. He referred to cl 3.1(a) of the policy which requires:
"All applications for moveable buildings, as defined above, shall require the Council's Planning Consent prior to the issue of a Building Licence … the Council will consider each application on its merits."
In short, Mr Bashall's argument was that TPS 4, the statutory document, provides the power to make policies. The respondent made a policy on moveable houses, the policy included a requirement that a planning application was required for moveable houses, an application was lodged and was determined by the respondent consistent with the objectives of the policy. In Mr Bashall's submission, the exercise of discretion by the respondent gave rise to the application for review now before the Tribunal.
Application of the respondent's policy
Clause 8.6 of TPS 4 provides, relevantly:
"(1)The Council may prepare a planning policy (hereinafter called 'a Policy') which may make a provision for any matter related to the planning or development of part or the whole of the Shire. The Council may amend, add to or rescind a Policy so prepared.
(2)A policy shall become operative only after the following procedures have been completed- …
…
(6)A Policy shall not bind the Council in respect of any application for planning approval but the Council shall have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making a decision.
(7)Any Policy prepared under this clause shall be consistent with the Scheme and where any inconsistency arises the Scheme shall prevail."
The Tribunal considers that the policy does not arm the respondent with the power to require a planning approval for the erection of a single dwelling in the residential zone in Bolgart, where that house does not require a variation of the R Codes.
Clause 3.1(a) of the policy, in requiring planning consent for the erection of the dwelling, is clearly in conflict with cl 4.1(2)(g) of TPS 4, which provides that planning consent is not required. Under cl 8.6(7) where there is an inconsistency "the Scheme shall prevail".
Reference was made to "Planning Appeal Casenotes", at 23 December 2005. In Part 4 General Legal Principles Applying to Planning Review it states at par 4.40.6:
"The power of a responsible authority to issue a permit derived from s 47 of the Planning and Environmental Act 1987 (Vic) can only be exercised when a planning scheme requires that a permit be obtained. Urban design guidelines not incorporated in a planning scheme and purporting to require a permit are invalid: Cernobrivec v City of Williamstown [1993] 12 AATR 54."
On the above authority, as the policy has not been incorporated into TPS 4 the policy purporting to require a planning approval is invalid. A planning application therefore was not required.
The Town Planning Appeals Tribunal (WA) has held:
"This policy is of course only a policy. It is not a part of the positive law in the sense that it is not part of the text of the town planning scheme itself. I think it is trite to say that to the extent that any planning policy would be inconsistent with the text of a town planning scheme, then the policy cannot prevail.": Kanther v State Planning Commission (1987) 5 SR (WA) at 151
TPS 4 is a statutory document by power of Town Planning and Development Act (1928) (TPD Act) s 7(3), which states:
"A town planning scheme or amendment to a town planning scheme, when approved of by the Minister and published in the Gazette, shall have full force and effect as if it were enacted by this Act."
In Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 it was held that "of course, a policy must be consistent with the statute".
At the hearing the Tribunal advised the parties that when deliberating on this matter the Tribunal would first be considering the application of cl 4.1(2)(g) to the proposed development. The parties were then given the opportunity to present their arguments on the merits of the conditions under review. From the consideration of the statutory provisions applicable to this matter, the Tribunal has found that the applicant was not required to apply for and obtain planning approval for the erection of the house. Therefore, any conditions purported to be imposed under the invalid approval are themselves a nullity. The Tribunal has not therefore come to a position on whether the conditions in question were appropriate conditions in the circumstances.
Section 29(3)(c)(i) of the State Administrative Tribunal Act 2004 provides that the Tribunal may set aside the decision that is being reviewed and substitute its own decision and, in any case, may make any orders the Tribunal considers appropriate.
The Tribunal has determined that the respondent did not have power to require that planning approval be applied for and obtained for the erection of the house on lot 183 George Street. The Tribunal has therefore decided to set aside the planning approval purported to have been granted for the erection of the house and to decide that no planning approval is required. The applicant must be aware, however, that this decision does not remove the need to obtain any approvals required under other legislation, and in particular, a building licence.
Orders
1.The decision of the Shire of Victoria Plains dated 19 July 2005 purporting to grant planning approval for the proposed erection of a dwelling at lot 183 George Street, Bolgart be set aside.
2.No planning approval need be applied for and obtained for the erection of a dwelling at lot 183 George Street, Bolgart.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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