Sunbay Developments Pty Ltd and Shire Of Kalamunda

[2006] WASAT 74

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   SUNBAY DEVELOPMENTS PTY LTD and SHIRE OF KALAMUNDA [2006] WASAT 74

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   27 MARCH 2006

FILE NO/S:   DR 26 of 2006

BETWEEN:   SUNBAY DEVELOPMENTS PTY LTD

Applicant

AND

SHIRE OF KALAMUNDA
Respondent

Catchwords:

Town planning ­ Review by President of determination of development application by non­legally qualified member ­ Whether determination involves a question of law - Failure to articulate grounds for review ­ Childcare centre ­ "Urban Development" zone ­ Site adjoins approved but undeveloped residential lots ­ Impact of development on residential amenity ­ Likely future amenity of locality ­ Whether it is open to focus on impact on discrete landholdings ­ Whether lack of objection precludes refusal of application on account of impact ­ Community need ­ Orderly and proper planning ­ Proposed condition of approval requiring covenant on title of adjoining lots restricting built form ­ Whether determination that it is too uncertain that condition will ensure acceptable impact on residential amenity involves a question of law ­ Whether proposed condition contrary to orderly and proper planning ­ Words and phrases: "amenity", "preservation of the amenity of the locality"

Legislation:

Environment Protection Act 1986 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Shire of Kalamunda District Planning Scheme No. 2, cl 1.13, cl 5.10.1
State Administrative Tribunal Act 2004 (WA), s 3(1), s 60(2)
Town Planning and Development Act 1928 (WA), s 66, s 66(3)

Town Planning Regulations 1967 (WA), App B

Result:

Application for review of member's determination dismissed.

Category:    B

Representation:

Counsel:

Applicant:     Mr Mark Etherington

Respondent:     Mr David Nicholson

Solicitors:

Applicant:     Phillips Fox

Respondent:     McLeods

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 10

BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272

Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

Focus Video v City of Enfield (1985) 55 LGRA 214

Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd & Anor (1996) 90 LGERA 68

Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100

Lawson & Anor and Shire of Mundaring [2005] WASAT 1

Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 206

Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79

North Sydney Municipal Council v Ligon 302 Pty Ltd (1996) 185 CLR 470

Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165

Randall and Town of Vincent [2005] WASAT 129

Shell Co of Australia Ltd v City of Frankston (1983) 8 APA 126

Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346

Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341

Williams and Western Australian Planning Commission [2005] WASAT 10

Case(s) also cited:

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433

Cole and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Sunbay Developments Pty Ltd sought review by the President of a member's decision to refuse development approval for a childcare centre.  The member refused the development application because of the acoustic impact of the development on likely future residences on adjoining land.  The member considered that a proposed condition of approval which would require restrictions to be placed on the form of future buildings on the adjoining land was too uncertain to ensure an appropriate level of amenity.

2. The President determined that the member had not made any determination that "involved a question of law".  The member was required to consider the impact of the development on the likely future amenity of the locality and, provided that he took into account the whole of the locality - which he did - it was open to him to focus attention on a particular part, namely the adjoining land.  Furthermore, the absence of objection by the present owner of an affected property did not preclude refusal of an application on account of the impact on that property.

3. It was open to the Tribunal member on the merits of the case not to be satisfied that the proposed condition would ensure an appropriate level of acoustic amenity on the adjoining land.  Furthermore, the imposition of the proposed building condition would be contrary to orderly and proper planning of the locality.

4. Thus, while forceful arguments had been presented in favour of the proposed development, Sunbay Developments had failed to demonstrate that the Tribunal member had made a determination that involved a question of law.  For this reason, the review application was dismissed.

The member's determination

1. This is an application made by Sunbay Developments Pty Ltd (Sunbay Developments) under s 66(3) of the Town Planning and Development Act 1928 (WA) (TPD Act) for review of a determination of Member Jordan in which he refused development approval for a 98­place childcare centre: see Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346.

2. The site of the proposed development (site) occupies approximately one­quarter of land known as Lot 36 (No 356) Hale Road, Wattle Grove (Lot 36).  In May 2005, the Western Australian Planning Commission granted conditional approval for the subdivision of Lot 36 into seven residential lots, a road extension, public open space and the site.  The site adjoins the rear boundaries of four of the residential lots, each of which has an area of 380 square metres, and a side boundary of another residential lot, which has an area of 312 square metres.  The conditions of subdivision approval have not yet been "cleared" and, therefore, the deposited plan of subdivision has not been issued.

3. The Shire of Kalamunda (Shire) argued that the development application warranted refusal for essentially two reasons.  First, it submitted that the proposed use is contrary to the intent of an applicable Outline Development Plan (ODP) which designates the area as residential.  Second, it submitted that the development would have an adverse impact on the amenity of future residential development on the adjoining lots.

4. Member Jordan determined that the proposed development was not contrary to the intent of the ODP. He accepted that non­residential and institutional uses, often found in residential areas, "can be allowed in the residential areas … where planning circumstances are appropriate": at [33]. He noted that the proposed use "will be single storey, modest in appearance, landscaped and with residential style fencing", and concluded that "extension of non­residential use of this character and in this location is not such a departure from the intent of the ODP and will not have such an adverse impact on Hale Road as to provide of itself a reason for refusing this application": at [35]. However, the member observed that "[b]efore a decision can be made as to whether a use such as this is to be allowed to proceed … it is necessary to first examine the impact it will have on the amenity of the immediate locality": at [36].

5. Each party presented qualified acoustic evidence.  Both acoustics experts concluded that the development would exceed the noise levels prescribed by the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) at the five approved, adjoining residential lots. To address this, the acoustics expert who gave evidence on behalf of Sunbay Developments made a number of recommendations, including the following:

   "Restrictions be placed on the houses on the five lots with common northern boundary: service and wet areas to face the childcare centre; bedroom areas to face away from the childcare centre; windows to be laminated glass 6.38mm thick; and the residences to be single storey."

6. Member Jordan found, on the unanimous evidence of the acoustics experts, that the proposed development would have an unacceptable noise impact on future residential development on the approved, adjoining lots. He considered that "it is too uncertain that any conditions imposed on the developers of the childcare centre will ensure the development of neighbouring houses at an acceptable level of amenity": summary at [4]. He, therefore, refused development approval.

Review by President under s 66 Town Planning and Development Act 1928

1. As I noted in Lawson & Anor and Shire of Mundaring [2005] WASAT 1 at [7] ­ [8], s 66 of the TPD Act sets out two pre­conditions which must be satisfied in order to found jurisdiction in the President to review a determination of a member of the Tribunal. First, the determination must have been made by the Tribunal when constituted without a member who is a "legally qualified member". Member Jordan is not a "legally qualified member" as that expression is defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Second, the determination must have been made upon a matter involving a question of law.

2. Paragraph 7 of Practice Note 4 ­ Review of Decisions of the Tribunal Under Section 66 of the Town Planning and Development Act 1928 (Practice Note 4) requires an applicant for review under s 66 to file, among other documents, "a statement of the grounds for review, clearly identifying the question or questions of law said to be involved". Sunbay Developments did not comply with this requirement. Rather, it filed a document, styled "Grounds of Appeal", in which it raised a series of complaints about the member's determination without clearly articulating the grounds for review or identifying the question or questions of law said to be involved. The complaints are set out under four headings, namely, "amenity", "noise modelling", "need" and "uncertainty of condition".

3. Paragraph 7 of Practice Note 4 also requires "written submissions in support of [an] application for review".  Sunbay Developments filed written submissions and written submissions in response which employ the four headings set out in the "Grounds of Appeal".  However, the submissions are not able to be readily cross­referenced or fully reconciled with the complaints raised in the earlier document.

4. Although I considered the task of reformulating Sunbay Developments' complaints into grounds for review, in the end I chose to address its principal complaints under its nominated four headings and to endeavour to ascertain whether any matter involving a question of law arose.

5. In accordance with par 11 of Practice Note 4, as neither party has sought an oral hearing in its written submissions, I have proceeded to determine the application for review entirely on the documents, namely, the member's reasons for decision and the written submissions, pursuant to s 60(2) of the SAT Act.

"Amenity" complaints

1. The site and land in the vicinity is zoned "Urban Development" under the Shire of Kalamunda District Planning Scheme No 2 (DPS 2).  Clause 5.10.1 of DPS 2 requires the Shire (and the Tribunal on review) to have "due regard" to, among other things, "the nature of the proposed development and its relationship to development of other land within the locality" and "the interests of orderly and proper planning and the preservation of the amenity of the locality".  The term "amenity" is relevantly defined for the purposes of DPS 2 (see cl 1.13) in the Model Scheme Text in Appendix B of the Town Planning Regulations 1967 (WA) in the following terms:

   "'Amenity' means all those factors which combine to form the character of an area and include the present and likely future amenity."

2. As the Shire submits, it follows from these provisions that the member was required to consider the proposed development having regard to the preservation of both the present and likely future amenity of the locality.  In particular, the member was required to have regard to the impact of the proposed development upon the likely future amenity of the locality.  Clearly, the fact that subdivision approval to create residential lots immediately adjoining the site has been granted is a material consideration in assessing the impact of the proposed development on the likely future amenity of the locality.  Moreover, as the Shire submits, the objective of the zone, that the area "be progressively developed for residential purposes", bears upon this consideration.  It is apparent from Member Jordan's reasons for decision that he approached the consideration of the impact of the proposed development on the likely future amenity of the locality correctly under the applicable planning instrument.

3. Sunbay Developments seeks to impugn the member's decision in relation to "amenity" on essentially seven bases.

4. First, Sunbay Developments contends that, having correctly determined at [37] of his reasons that the test for impact on amenity is that stated in Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 at 304, the member "erred in not applying that test (that is, the impact on the existing amenity of the locality) but rather a test based on the perceived impact on the future amenity of the locality".

5. As the Shire correctly submits, the decision of the Town Planning Appeal Tribunal in Tempora v Shire of Kalamunda "simply outlines an approach to considering or assessing amenity" which was formulated in a case "which did not raise the issue of future amenity".  In Tempora v Shire of Kalamunda, the Tribunal observed at 304 that "the determination of the amenity of the locality is a question of fact and consists of three parts: the existing amenity, the manner in which the proposed use will affect the existing amenity and the degree of impact on the locality".  The Tribunal emphasised that the first part of the inquiry involves a determination, "as a matter of fact, [of] the objective character of the area that represents the present state of amenity".

6. The general approach to the assessment of amenity impact set out in Tempora v Shire of Kalamunda is sensible and should be followed.  However, as the State Administrative Tribunal recognised in Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48], "in undertaking [the] objective inquiry [as to the character of the area that represents the state of amenity] a specialist planning tribunal is assisted not only by the expert opinions of town planners, but also by the views of residents. Indeed, residents of a locality are often well­placed to identify the particular qualities and characteristics which contribute to their residential amenity". Thus, the decision in Tempora v Shire of Kalamunda plainly is not correct, and should not be followed, insofar as the Town Planning Appeal Tribunal suggested that an objective inquiry as to the character of an area can only be informed by expert witnesses (see 304, but cf 305) and not by lay residents.

7. However, the approach in Tempora v Shire of Kalamunda to the consideration of the impact of a proposed development on existing amenity does not preclude an assessment, required by an applicable planning instrument, of the impact of the development on likely future amenity.  As the Shire correctly submits, "there is no suggestion in the statutory scheme that the consideration or regard that the Tribunal is required to afford likely future amenity is any less than that afforded to present amenity".  Moreover, the member approached the consideration of the impact of the development on likely future amenity in a similar, sensible, objective manner to the approach to the impact on existing amenity in Tempora v Shire of Kalamunda.

8. Second, Sunbay Developments contends that "the Tribunal's consideration of future amenity is limited (notwithstanding the reference to future amenity within the definition of amenity) to an assessment of the general appropriateness of the proposed use or development in terms of potential land use conflict (that is, the extent that land use conflict may prevent the fulfilment of the Outline Development Plan or the future planning intentions for the locality)".

9. However, there does not appear to be any basis for limiting the consideration of the impact of a development on likely future amenity of the locality to general appropriateness in terms of potential land use conflict.  Potential land use conflict is a separate matter for consideration in terms of orderly and proper planning.

10. Third, Sunbay Developments contends that, as the Tribunal found that the proposed development is not contrary to the intent of the ODP, it "was not entitled to conclude that the proposed development could not be supported on amenity grounds".  This contention involves a challenge to a finding of fact, not a determination of law.  In any case, a finding that the development is not contrary to the intent of the ODP, because non­residential and institutional uses are often found and may be approved within residential areas, does not necessitate a finding that a particular childcare centre proximate to a particular residential use is acceptable where its impacts on the residential use are not able to be appropriately mitigated on site.

11. Fourth, Sunbay Developments submits that, even if the Tribunal was entitled to consider the impact of the development on the likely future amenity of the locality, it was not entitled to focus on discrete landholdings within the locality.  Sunbay Developments relies on the statement by Jacobs JA in Focus Video v City of Enfield (1985) 55 LGRA 214 at 220 that "the extent of the relevant 'locality' for planning purposes varies from case to case, but care must be always … taken not [to] unduly … restrict the locality, for the tighter the locality [is] defined, the greater [the] impact of the impugned subject matter … and the greater is the risk of distorting the relevant planning criteria".

12. It is apparent from Member Jordan's reasons that he did not "unduly … restrict the locality".  He recognised that, for the purposes of both present and future amenity impact, the locality comprises not only the approved, adjoining residential lots, but also residences under construction across Hale Road, which he noted is a district distributor road, mostly vacant residential lots adjacent to the site and a commercial and mixed use precinct on the far side of public open space from the site.  However, as the member observed at [38], "[t]he areas of concern identified by the parties are the adjacent residential and future residential lots".  The member was satisfied, on the evidence, that the existing and future amenity of the adjacent residential lots will be safeguarded by conditions requiring mitigating works and measures within the site.  However, as noted earlier, he considered that the proposed development would have an unacceptable noise impact on future residential development on the approved, adjoining lots which he referred to as the "future residential lots".

13. Provided that the "locality" to which a site is related and of which it forms part is properly determined, it is open in a planning assessment to focus on the impact of a development on a particular part of the locality.  Indeed, experience in planning assessment suggests that this will often be the case.  Although an assessment of the impact of a development on the existing or likely future amenity of the locality must take into consideration positive, negative and neutral impacts on all parts of the locality, it is open in planning assessment to refuse an application because of the extent of the impact on a part of the locality or on a single property.  Were it otherwise, the overall amenity of a locality would be undermined incrementally, application by application.

1. Fifth, Sunbay Developments contends that it was not open to the member to conclude that the development would have an unacceptable noise impact, because there was no objection by the present owner of the adjoining lots and the approval of buildings on those lots would involve "building design, siting and scale considerations that will take account of the operation of the proposed development".  Sunbay Developments also submits that the development of future residences was an irrelevant consideration given that it "bears the commercial risk that the proposed development will reduce the value of those neighbouring lots once subdivided (that is, the purchasers of that land will factor into the purchase price any perceived reduction in amenity or enjoyment of land)".

2. These contentions lack cogency in three respects.  First, the fact that no objection is made by the present owner of a property which is objectively, detrimentally affected by a proposed development, while potentially a relevant consideration, does not obviate planning consideration of the impact and, where appropriate, refusal of an application in consequence of the impact.  Planning law "is concerned with the use of land – and not with the identity of the user": per Cripps J in Moslem Alaway Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. The identity of those who undertake development and those who are affected by it are likely to change during the lifetime of a development. The task of a planning consent authority, including the Tribunal on review, is to consider the objective impact of a development on the existing and, where relevant, likely future amenity of the locality, including impact on adjoining or adjacent properties, irrespective of current ownership arrangements.

3. Second, assessment of the impact of a development on the likely future amenity of the locality should not necessarily proceed on the assumption that the development is operating and, therefore, that likely future residences will be designed to take into account the operation of the development.  Indeed, under DPS 2, such an approach is not open and would undermine the efficacy of the proper assessment of the proposal.  An assessment of the impact of a proposed development on the likely future amenity of the locality involves an objective determination of the likely future amenity, on the assumption that the development does not operate, an objective assessment of the manner in which the development will affect likely future amenity and the degree of impact.

4. Third, the likelihood that, if the development were approved, purchasers of the approved, adjoining lots would take into account in the purchasing decision a perceived reduction in amenity or enjoyment, does not make the development of future residences an irrelevant consideration.  This argument proceeds on the same misconception as that addressed in the preceding paragraph, namely, that the operation of the proposed development is an assumed fact in the assessment, whereas the assessment should ordinarily assume that the proposed development does not operate and that the likely future amenity of the locality is not affected by it.

5. In its written submissions in response to the Shire's written submissions, Sunbay Developments seeks to advance two fresh grounds not articulated or referred to in its "Grounds of Appeal" or submissions in chief.  Seeking to raise fresh grounds by way of submissions in reply is inappropriate and unfair to the Shire.  In any case, both grounds should be rejected.

6. First, Sunbay Developments contends that, on the proper interpretation of cl 5.10.1 of DPS 2, notwithstanding the definition of the term "amenity" which includes "the present and future amenity", the use of the word "preservation" of amenity has the result that "it is only existing amenity that is elevated to the status that requires 'due regard' being given to it for the reason that it is nonsensical to [speak] of preserving the amenity that may or may not ultimately arise in the future".

7. The verb "preserve" is relevantly defined in The Macquarie Dictionary (4th Edition, Macquarie, 2005) as "to … make lasting", "to keep safe from harm or injury; save" and "maintain".  It is not "nonsensical" to make lasting, keep safe from harm or injury or maintain the likely future amenity of a locality.  Clause 5.10.1 requires "due regard" to be given to this consideration.

8. Second, Sunbay Developments submits that "the Tribunal in exercising … overall discretion has placed such weight on the issue of future amenity of the relevant locality and as a consequence has failed to have due regard to the actual merits of the proposal contrary to the general proposition of law in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522". As I noted in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17], "the relative significance or weight be given to the evidence, and appropriate findings to be made based on the evidence, are questions of fact, which were entirely within the province of the [member] to determine for himself, and do not ground any error of law" (citations omitted).

9. It follows that the member's consideration of the impact of the development on amenity did not involve any question of law.  The conclusion to which he came on this issue and the significance which he accorded to it in the overall exercise of planning discretion was properly and reasonably open.

"Noise modelling" complaints

1. Sunbay Developments appears to have essentially three complaints in relation to "noise modelling".

2. First, Sunbay Developments contends that the Tribunal erred because the noise modelling undertaken by each of the acoustics experts did not take into account future noise which is likely to be generated by Hale Road and the commercial and mixed use precinct or the design and nature of the likely development on the approved, adjoining residential lots.  These complaints allege errors of fact, not of law.

3. Second, Sunbay Developments contends that the Tribunal erred by misdirecting itself in substituting compliance with the Noise Regulations for a proper determination of amenity impact under DPS 2.  Sunbay Developments submits that the Tribunal acted "as a quasi­regulator" under the Environmental Protection Act 1986 (WA) (EP Act).

4. I do not consider member Jordan misdirected himself in relation to the issue of noise assessment.  In Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100, the Tribunal recognised at [39] that "compliance with the Noise Regulations does not necessarily mean that the noise does not constitute an adverse impact on the existing amenity of the locality in a planning sense". However, subject to any applicable planning provision to the contrary, evidence of likely non­compliance by a development with the Noise Regulations in a planning assessment might well indicate that the noise generation of the development will give rise to an adverse impact on the amenity of the locality. In his planning assessment of the development application, Member Jordan did not act as a "quasi­regulator" under the EP Act. Rather, he properly took into consideration the unanimous acoustics evidence which demonstrated that the development would not comply with the Noise Regulations without necessitating ameliorative measures on the affected, adjoining land. It was open to the member to, in effect, take compliance with the Noise Regulations as a minimum measure of acceptable acoustic amenity.

5. Third, Sunbay Developments contends (for the first time in its submissions in response to the Shire's submissions; see my earlier observations on such an approach) that as the experts agreed that a boundary wall would provide sufficient acoustic protection for single storey dwellings on the adjoining land, "the Tribunal was not at liberty as a matter of reasonableness at law to conclude that the noise modelling alone established an adverse impact on the amenity".  Although it is unstated, I assume that the argument is put in terms of Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. However, it was not manifestly unreasonable for the member to consider that likely future dwellings on allotments of 312 square metres and 380 square metres would include two storey components.

"Need" complaint

1. Sunbay Developments contends that, having found at [25] that there was a demand for the childcare places proposed, the Tribunal erred in not determining that the demand constituted a public need which was sufficient to "overcome any amenity impact that the proposed development has on the surrounding locality".  Sunbay Developments relies on observations of the Town Planning Appeal Tribunal in BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 at 118 in which the Tribunal said that it is "possible that a 'community need' for a commercial use becomes a matter of public interest and should be taken into account in certain circumstances". The Tribunal in that case referred to the Victorian decision of Shell Co of Australia Ltd v City of Frankston (1983) 8 APA 126 in which it was said at 133 that "if an applicant can show a need for a proposed use then this factor may outweigh other considerations adverse to use"; see also discussion in Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165 at 171 – 175 per Malcolm CJ. These decisions however, in emphasising this balancing exercise, were primarily referring to those cases where a proposed public use gave rise to adverse amenity considerations.

2. The Shire contests whether Sunbay Developments asserted before Member Jordan that the demand or need for the proposed use is so significant as to exceed other considerations adverse to the use.  It is unnecessary for me to reach a view as to whether the issue was sufficiently raised, as it is clear from [25] of the reasons that the member took into consideration the fact that there is likely to be sufficient population in the locality of the site to accommodate a childcare centre.  Nevertheless, the member concluded that the likely impact of the development in terms of noise on future amenity of the locality warranted refusal.  In light of the unanimous acoustics evidence it was certainly reasonably open to the member to conclude that the amenity impact warranted refusal of the application, notwithstanding likely demand for the use.

"Uncertainty of condition" complaint

1. Sunbay Developments contends that the Tribunal erred "in concluding that any condition would be uncertain or would 'not survive changes in ownership or disparity in timing of lot creation and development'".  Sunbay Developments submits that any restrictive covenant imposed on the adjoining land by way of design guidelines "will be certain, valid and will run with the land in perpetuity".  It also submits that, as land titles have not yet been created in relation to the adjoining land, "the Tribunal could legally condition those proposed lots by conditioning the entirety of the existing lot (although only part [of] the existing lot is proposed to be developed as a childcare centre)".

2. The Shire submits that it is uncertain whether a restrictive covenant of the nature suggested by the acoustics expert could be put in place and could regulate built form on the adjoining land.  In particular, the Shire contends that it is unclear to whom the benefit of such a restrictive covenant would flow.  Furthermore, the Shire "doubts that a restriction of this nature would be enforceable given that under DPS 2 a single house is exempt from development approval".  The Shire would not, therefore, have the opportunity to assess the planning merits of applications for single residential dwellings and thereby to ensure compliance with the restrictive covenant.  The Shire also makes the following submission:

   "Whilst the imposition of such restrictions might ensure the proposed development complies with the Noise Regulations, it is not in the interests of orderly and proper planning to impose such restrictions upon the development of land adjoining the development site so as to ensure that the proposed development itself complies with amenity standards … [T]he fact that the proposed development cannot satisfy minimum standards of amenity relating to noise without significantly restricting the residential development of adjoining lots on land designated as residential in the ODP, was sufficient evidence for the Tribunal to conclude that the location of the proposed development was unsuitable on planning grounds."

3. In its formulation of the complaint, Sunbay Developments focuses on a particular phrase used by Member Jordan in a part of his reasons, namely, that the suggested condition would "not survive changes of ownership or disparity in timing of lot creation and development": at [50]. It is important, however, to read these words in the wider context of the reasoning. In particular, it is instructive to read the words in the context of the five paragraphs of which they form the final phrase, which are as follows:

   "There was a considerable exchange between Counsel for the two parties as to how restrictions could be placed on the proposed lots to the north.  The discussion included various forms of covenants, notices, agreements, endorsements and undertakings potentially involving the landowners, the respondent and the proponents of the childcare centre.

   Relevant to the discussion was that there was as yet no deposited plan for the approved subdivision and no certificates of title had been issued.  It was said the childcare centre was a joint venture and one of the joint venturers was a director of the company that owned the subject land.  Counsel for the applicant referred to the willingness of the applicant to enter into any agreement considered necessary by the respondent, the common ownership elements between the subject land and the proposed residential lots, the desire to be good neighbours, and the single storey character of the locality.

   Counsel for the respondent expressed doubt about the legality of any covenants or agreements put in place and the capacity for enforcement in certain circumstances where there was uncertainty over the timing of completion of the subdivision process, the future ownership of both the subject land and the individual residential lots, and when development might take place on any of the lots.

   The Tribunal notes the lots to the north have not yet been created and the subject land has not been developed, so this colours the measure of the existing amenity.  Clearly, were the subdivision to proceed and the childcare centre built, there would be an impact on the amenity of the residential lots, particularly by noise.  The noise experts have made estimates of what that impact would be and have set out measures that would have to be taken to ensure that the impact on the amenity of any new houses is acceptable.

   The Tribunal accepts that development can be allowed if, with enforceable conditions, the future amenity of the neighbouring lots is not compromised.  From the evidence, the Tribunal has concluded that the capacity to ensure the appropriate measure of amenity in the new residential lots is too uncertain.  Required are conditions of approval for the childcare centre that will bind unknown future owners of separate yet to be created residential lots to the building of houses with quite specific and constricting design features.  The Tribunal has not been satisfied that, even if this were a reasonable approach to the planning of the locality, conditions can be put in place that would survive changes of ownership or disparity in timing of lot creation and development."

4. It appears that there was considerable uncertainty at the hearing as to the form of condition Sunbay Developments sought in response to its expert's evidence.  It also appears that Member Jordan accepted the submission put by counsel for the Shire that there was uncertainty as to whether a covenant on the title of the adjoining land would be enforceable by the Shire.  The member concluded, in essence, that there remained uncertainty as to whether a mechanism of restrictive covenants required by conditions of approval would ensure appropriate residential amenity.  This conclusion was reasonably open.

5. Sunbay Developments correctly submits that restrictive covenants would "run with the land in perpetuity".  The Shire's concern that it is unclear to whom the benefit of a restrictive covenant would flow is misplaced as it could benefit the registered proprietor of the site.  However, the Shire's concern that it could not "enforce" a covenant where no development approval is required is sufficient to raise uncertainty as to whether residential amenity would be ensured through the mechanism contemplated.  While a covenant could be enforced by the owner of the site through Supreme Court proceedings, it could not be "enforced" by the Shire as the responsible planning authority in circumstances where development approval is not required for the erection of a house.

6. Sunbay Developments' second submission, that the Tribunal "could legally condition those proposed lots by conditioning the entirety of the existing lot", is rejected.  Although the site and the approved, adjoining residential lots formed a single title at the date of the Tribunal's determination, the land the subject of the development application did not include the residential lots: cf North Sydney Municipal Council v Ligon 302 Pty Ltd (1996) 185 CLR 470.

7. Furthermore, even if Member Jordan had erred in law in relation to the proposed condition and it would have been open to "substitute another … determination that the … Tribunal could have made in relation to that matter" (TPD Act s 66(2)(b)), I would have come to the conclusion that the proposed condition should not be imposed. As the Shire submits in the quotation set out at [45] above, "it is not in the interests of orderly and proper planning to impose such restrictions upon the development of land adjoining the development site so as to ensure that the proposed development itself complies with amenity standards".

8. In Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd & Anor (1996) 90 LGERA 68, Cole JA held in the New South Wales Court of Appeal at 70 ­ 71 as follows:

   "It is not, however, any part of the function of [a development] authority (or the Court when acting in substitution for the authority) … to be concerned, as his Honour was, with the prospect that the holder of the land adjoining the proposed development could or should be expected to make adjustments to its land use to accommodate the new development."

9. It is fundamental to orderly and proper planning that a proposed development should generally provide appropriate mitigation for its impacts within its site and not require adjoining developments to "make adjustments" (to borrow Cole JA's words) or limit the development potential of adjoining land below that reasonably contemplated by the zoning and planning controls.  However, there are exceptions to this general principle, for example where the applicable zoning and planning controls reasonably contemplate certain impacts across boundaries (see, for example, Big Country Australia Pty Ltd and Shire of Serpentine-Jarrahdale [2006] WASAT 10 at [55] ­ [59]) or use of public land or facilities either with or without payment (see, for example, Randall and Town of Vincent [2005] WASAT 129 at [128] ­ [129]).

10. Sunbay Developments contends, in essence, that the reasonable development potential of the adjoining lots should be constrained so as to permit its development to be approved.  This would allow what is, on the evidence, an overdevelopment of the site by requiring underdevelopment of adjoining land.  This approach is inconsistent with orderly and proper planning and the overall intent of the ODP that the land should be progressively developed for residential purposes.

Conclusion

1. While Sunbay Developments has forcefully reiterated on this review a number of grounds as to why, on its merits, the member should have allowed the initial review of the Council's decision, it has not established that the Tribunal's determination involved any question of law.    Under DPS 2, the Tribunal was required to have regard to the impact of the proposed development on the likely future amenity of the locality.  The member had regard to this factual consideration.  It was open to him to focus his attention on the impact of the development on the likely future amenity of approved, adjoining residential lots and to determine that the development would have an unacceptable acoustic impact.  It was open to conclude that the development application warranted refusal for this reason.

2. Furthermore, the Tribunal did not err in law in its consideration that a proposed condition of approval which requires the placement of restrictive covenants on the titles of the approved, adjoining residential lots should not be imposed.  In any event, in the circumstances of this case, the imposition of such a condition would have been contrary to proper and orderly planning of the locality.

3. The parties did not address the question of costs of the application for review under s 66 of the TPD Act in their submissions. Although the established practice of the Tribunal in review, including planning review, proceedings is that generally each party should bear its own costs (see Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341 and Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53), it might be argued that different considerations should apply where review proceedings are in respect of a determination of the Tribunal upon a matter involving a question of law which, absent a provision such as s 66 of the TPD Act, would be the subject of appeal to the Supreme Court. In this regard I note Memel Holdings Pty Ltd v Pittwater Council [2000] NSWLEC 206 at [26] and that the established practice of the Land and Environment Court of New South Wales in an equivalent internal review jurisdiction restricted to questions of law, is that costs generally follow the result. I would however take the view that ordinarily s 87(1) of the SAT Act applies to such a proceeding and, accordingly, costs should not be awarded against the party that is unsuccessful on this type of review proceeding.

Order

1. I make the following order:

   1.The application for review pursuant to s 66 of the Town Planning and Development Act 1928 (WA) of the determination of the Tribunal in Sunbay Developments Pty Ltd and Shire of Kalamunda [2005] WASAT 346 is dismissed.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT