Teo and City Of Stirling - [2008] WASAT 55

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TEO and CITY OF STIRLING [2008] WASAT 55

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 21 FEBRUARY 2008

DELIVERED : 7 MARCH 2008

FILE NO/S: DR 133 of 2007

BETWEEN: TONGWOON TEO
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Preliminary issue - Application to amend structure plan - Whether low density residential use is permissible on site - Structure plan identifies site as "café/deli" - Whether low density residential use is "generally in accordance with" structure plan - Whether structure plan is invalid - Whether local government and Western Australian Planning Commission did not adopt or endorse same structure plan - Whether effect of structure plan for site is unclear - Meaning of "café/deli" - Words and phrases: "café/deli", "generally in accordance with"

Legislation:

City of Stirling District Planning Scheme No 2, cl 1.3.1.1, cl 1.3.2.1, cl 1.3.2.2, Sch 12 cl 1, cl 3, cl 4, cl 5, cl 6, cl 7

Result:

Low density residential use is not permissible on the site

Category: B

Representation:

Counsel:

Applicant: Mr PA Kyle
Respondent: Mr A Roberts

Solicitors:

Applicant: Kyle & Company
Respondent: McLeods

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

Grace Bros Pty Ltd v Willoughby Municipal Council & Ors (1980) 44 LGRA 400

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Teo sought review of the City of Stirling's decision to refuse to amend a structure plan to enable low density residential use of his property. The parties identified a preliminary issue as to whether low density residential use of the property is permissible under the existing planning framework.
The Tribunal determined that low density residential use is not permissible on the property under the existing planning framework.
The applicable structure plan identifies the property as "café/deli" which means a place where coffee and light refreshments are served and a small local shop selling a range of goods for domestic consumption. Low density residential use is not permissible on the property, because it is not generally in accordance with the structure plan. Low density residential use is fundamentally different to café/deli use. Furthermore, low density residential use of the property would deny residents of the precinct access to a café and deli to meet their immediate retail needs, whereas the development of the precinct has been planned for a number of years on the basis that residents would have access to these facilities within the precinct and, in particular, on the property.

Introduction

Mr T Teo is the owner of a property known as Lot 9000 Roselea Boulevard, Stirling (site) which is located in the Roselea Jones Street Residential Precinct (Precinct). The site has an area of 1597 square metres and is bounded by Roselea Boulevard/Coralvine Grange to the west, public open space to the north and south and a small lake to the east. Although the site is private land, it is currently developed and used as public open space in conjunction with the designated public open space to the north and south.
Mr Teo wishes to develop the site for low density residential use and consequently applied to the City of Stirling (City or Council) under cl 6 of Sch 12 of the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme) to amend the Agreed Structure Plan for the Precinct. The Council refused Mr Teo's application and Mr Teo sought review of that decision by the Tribunal.
The parties have identified the following preliminary issue for determination in the proceedings:
Whether low density residential use is permissible on the site under the existing planning framework.
For reasons set out below, low density residential use is not permissible on the site under the existing planning framework. The existing planning framework identifies the site as "café/deli" which means a place where coffee and light refreshments are served and a small local shop selling a range of goods for domestic consumption. Development of the site must be generally in accordance with these purposes.

Background

On 24 December 1999, DPS 2 Amendment No 358 was gazetted ‑
•rezoning the Precinct to "Low Density Residential" with a residential density coding of R20;
•annotating the area of the Precinct on the Scheme Map with the words "Zoning subject to Schedule 12 of District Planning Scheme No 2"; and
•inserting Sch 12 into DPS 2 (Sch 12).
Clause 1 of Sch 12 states as follows:
"The purpose of the Jones Street Precinct is to facilitate and permit the progressive development of the land for a predominantly low density residential estate."
Clause 3 of Sch 12 states as follows:
"A comprehensive Structure Plan shall be approved by the Council and endorsed by the Western Australian Planning Commission for the Precinct prior to any subdivision, strata subdivision or development of the land. The subdivision, strata subdivision or development of any land within the Precinct shall be generally in accordance with the Agreed Structure Plan and Building Design and Access Guidelines adopted for the Precinct pursuant to Clause 8 of this Schedule, as appropriate."
Clause 2 of Sch 12 defines:
"Structure Plan" to mean:
"… a plan and text making provision for the subdivision, strata subdivision and development of a specific area and which provides a framework for such future subdivision, strata subdivision and development"
and
"Agreed Structure Plan" to mean:
"… a Structure Plan adopted by the Council and endorsed by the Western Australian Planning Commission".
Clause 4 of Sch 12 requires that the Structure Plan adequately address seven matters, including:
"The proposed development, distribution of land uses and their relationship to adjacent landholdings" (cl 4(c)).
Clause 5 of Sch 12 sets out the procedure for the approval and endorsement of the Structure Plan. The final paragraph of cl 5 is as follows:
"The Council shall after the date stated in the notices, consider the proposed Structure Plan together with any comments received and may at its discretion, either adopt the Structure Plan with or without modification and subject to such conditions as it considers appropriate, or refuse the Structure Plan. The Council shall forward the Agreed Structure [P]lan to the Western Australian Planning Commission for endorsement."
Clause 6 of Sch 12 allows for amendment of the Agreed Structure Plan and states that "such amendments shall require the approval of the Council and the endorsement of the Western Australian Planning Commission".
Clause 7 of Sch 12 states, in part, as follows:
"For the purposes of Clause 1.3.2 and Table 1 – Zoning Table of the Scheme, the use and development of land within the Jones Street Precinct shall be subject to the provisions of the 'Low Density Residential' Zone except for:
…
Except as otherwise provided for under the Agreed Structure Plan and the adopted Building Design and Access Guidelines; the use, development or subdivision of land shall be in accordance with the provisions of the Scheme."
In March 1999, the City received a document entitled "Roselea Structure Plan Jones Street, Stirling" dated March 1999 prepared by Koltasz Smith & Partners (Koltasz Smith), town planners and project managers, on behalf of a company that was then in the process of acquiring the land that became the Precinct. In April 1999, the City received a document entitled "Roselea Structure Plan Jones Street, Stirling Technical Appendix", compiled by Koltasz Smith, incorporating an environmental assessment and management plan dated March 1999, an engineering report dated February 1999, a landscape master plan dated March 1999, a geotechnical investigation dated February 1999 and a hydrological evaluation dated February 1999. The document entitled "Roselea Structure Plan Jones Street, Stirling" dated March 1999 and the Technical Appendix are referred to collectively in these reasons as the "Proposed Structure Plan".
The Proposed Structure Plan includes the following text at page 27:
"A small Village Centre is proposed adjoining the northern portion of the main lake and is proposed to be integrated within the abutting Townhouse developments while capitalising on its outlook over the lake.
The Village Centre is intended to provide only for the immediate retail needs of the resident population as there are significant retail facilities in the broader locality of the site and particularly at Stirling Village, Northlands and Karrinyup.
Specifically, it is envisaged that the Centre, which is proposed to be built around a small town square adjoining the lake edge, would comprise the following retail components:
•A "super‑deli/minimart" of 250 [square metres] to 350 [square metres];
•Limited smaller specialty/boutique stores; and
•Limited takeaway fast food facilities.
Gross retail area is envisaged in the order of 750 [square metres] based on an estimated resident population of 1500 persons and a guidance per capita floor space allocation of 0.53 [square metres] …
Additionally, it is proposed that the Centre incorporate café/bistro facilities overlooking the water together with opportunities for local office space, thereby creating more of a mixed use centre with a strong 'lifestyle' bias."
Page 16 of the Proposed Structure Plan identifies the plan depicting the Structure Plan as Figure 9. Figure 9 shows that the Village Centre was proposed to be located on a peninsula projecting into the northern portion of the lake to the east of the site. Figure 9 also shows that the area that subsequently became the site was proposed to comprise public open space, including landscaping, paths and built works, together with the area to the north and south.
On 21 September 1999, the Council received a report dated 8 September 1999 and a supplementary report dated 15 September 1999 from its Acting Executive Manager Development in relation to then draft Amendment No 358 to DPS 2 and the Proposed Structure Plan. The Council accepted the officer's recommendation and made resolutions including the following:
"1.That District Planning Scheme No. 2, Amendment No. 358 be ADOPTED in a modified form, signed and the Common Seal affixed and forwarded to the Western Australian Planning Commission for final approval.
2.That subject to satisfactory modifications, in accordance with the Executive Manager Development's reports dated 8 and 15 September, the Structure Plan for the Jones Street Precinct dated March 1999 (Technical Appendix April 1999) be ENDORSED by Council and FORWARDED to the Western Australian Planning Commission for endorsement."
It appears that discussions took place subsequently between Koltasz Smith and the City, including at a meeting on 15 December 1999. On 16 December 1999, Koltasz Smith wrote to the City enclosing an amended Structure Plan incorporation "[d]eletion of three duplex site notations; Village Centre notation; and Jones St intersection amendments and notation". This version of the Structure Plan is not appended to the letter of 16 December 1999 reproduced in the evidence. However, a Western Australian Planning Commission (Commission) report dated 21 August 2001 attaches a plan entitled "Roselea Approved Structure Plan Jones Street, Stirling" drawn by Koltasz Smith dated 16 October 1999 that was received by the Commission on 30 December 1999. The Commission report describes this plan as the "Approved Structure Plan".
It appears from the time sequence disclosed in the preceding two paragraphs and the congruence between the 16 October 1999 plan and the letter of 16 December 1999 that the City accepted the 16 October 1999 plan as reflecting satisfactory modifications in accordance with the Executive Manager Development's reports dated 8 and 15 September 1999, required by its resolution of 21 September 1999, and, consequently, forwarded it to the Commission in late December 1999 for endorsement under Sch 12.
By letter dated 21 March 2000, the Commission advised the City that it had resolved to adopt the "Jones Street Precinct Structure Plan" as a guide for its decision-making subject to:
•dual use paths, footpaths, road connections and road extensions being provided in accordance with a plan dated 9 March 2000 that was attached to the letter;
•a 3 metre wide public access easement being provided over the Village Centre lot shown on the plan dated 9 March 2000;
•44 714 square metres of public open space being provided at the subdivision application stage with the size and location of public open space to be to the satisfaction of the Commission;
•the preparation of Building Design and Access Guidelines for the lots shaded on the plan dated 9 March 2000; and
•the inclusion of a future road link as shown on the plan dated 9 March 2000.
The Commission report dated 21 August 2001 identifies the 16 October 1999 plan as the Structure Plan that the Commission adopted on 21 March 2000.
In consequence, the Tribunal finds that, on 21 March 2000, the Proposed Structure Plan as modified by the 16 October 1999 plan became the Agreed Structure Plan for the Precinct under Sch 12. The Agreed Structure Plan remained in this form from 21 March 2000 until 4 September 2001.
On 26 February 2001, Koltasz Smith sought the City's support "to the modification of the Roselea Structure Plan in respect of the Village Centre and Townhouse proposals". The letter includes the following:
"With respect to the Village Centre, expressions of interest for retail tenancies within the Village Centre have been disappointing, due largely to the limited catchment and alternative facilities available within the locality. Accordingly, our client is seeking Council's support to down sizing the facility to a combined café and delicatessen and for its relocation as discussed further in this submission. …
The Plan proposes a total of 76 lots structured as follows:
•café/deli site of 1805 [square metres];
With the scaling down of the Village Centre and the re-design of the northern townhouses, it is proposed to relocate the café/deli marginally westward of the previous café position so as to improve its relationship with the main Public Open Space and the pedestrian plaza area west of the main roundabout.
As previously, the café/deli has been integrated into the overall landscape design of the Public Open Space and provision made for a pedestrian easement through the lot to facilitate pedestrian movement between the areas of lakeside Public Open Space. …"
The letter enclosed a plan depicting and entitled "Revised Structure Plan Roselea – Jones Street, Stirling" drawn by Koltasz Smith dated 5 February 2001. This plan shows the "café/deli site" referred to in the letter occupying substantially the same area as the site that is the subject of these proceedings.
On 20 March 2001, the Council resolved to approve the modifications to the Agreed Structure Plan proposed by Koltasz Smith, subject to the "Structure Plan being amended to address the concerns outlined in the Executive Manager Development's report dated 6 March 2001". On 26 March 2001, the City wrote to Koltasz Smith setting out its resolution of 20 March 2001.
On 9 April 2001, the City forwarded to the Commission a copy of the letter from Koltasz Smith dated 26 February 2001, the Executive Manager Development's report dated 6 March 2001 and the plan dated 15 February 2001.
On 4 May 2001, Koltasz Smith wrote to the City, referring to the City's letter of 26 March 2001 and to subsequent discussions, and enclosing an amended plan drawn by Koltasz Smith entitled "Revised Structure Plan Roselea – Jones Street, Stirling" dated 2 May 2001. On 15 May 2001, the City forwarded the 2 May 2001 plan to the Commission. The Commission received this plan on 17 May 2001.
It appears from the time sequence disclosed in the preceding three paragraphs that the City considered the plan dated 2 May 2001 to satisfactorily address the concerns outlined in the Executive Manager Development's report dated 6 March 2001 and consequently forwarded it to the Commission for endorsement under cl 6 of Sch 12.
On 4 September 2001, the Commission's Statutory Planning Committee accepted the reporting officer's recommendation that the Commission should "adopt" the proposed modifications to the Structure Plan subject to three matters, including "redesign of internal 'Village Centre' subject to the provision of a 3 metre wide public access easement being provided over the Village Centre lot [that is, the site]". However, the Koltasz Smith plan of 2 May 2001 already showed a pedestrian access easement over the site connecting pedestrian paths in the public open space to the north and south.
In consequence, the Tribunal finds that, on 4 September 2001, the Agreed Structure Plan for the Precinct was amended under cl 6 of Sch 12 in terms of the Koltasz Smith letter dated 26 February 2001 and the Koltasz Smith plan dated 2 May 2001. The Agreed Structure Plan remained in this form from 4 September 2001 until 8 June 2004.
By letter dated 10 May 2002, the City informed the Commission that it had received a further request to modify the Agreed Structure Plan. On 6 August 2002, the Commission adopted the modified Structure Plan submitted to it by the Council in May 2002. However, it is common ground that the Council does not appear to have approved the proposed 2002 modifications to the Agreed Structure Plan, as required by cl 6 of Sch 12, and that, consequently, the proposed 2002 modifications have no bearing on the determination of the preliminary issue in these proceedings.
On 4 February 2004, Koltasz Smith wrote to the City referring to a meeting held on the previous day regarding "the proposed redesign of the northern boundary of Roselea Estate". The letter includes the following:
"Approval is sought from Council to the design changes as shown on the enclosed plan in order that an associated revised plan of subdivision may be approved. The Structure Plan changes are minor in nature, involving redesign to create a linear parkland area along the north boundary; adjustment to Yarrow Lane; and inclusion of 3 additional town houses given the significant increase in public open space now proposed. The street layout is a logical extension of the approved plan of subdivision, with the area of change shown in blue on the enclosed plan."
The site is not included in "area of structure plan revision" shown by blue shading on the plan referred to in the letter. Furthermore, the plan appears to simply reproduce the car parking area, pedestrian access easement and buildings shown in the location of the site on the plan dated 2 May 2001 that depicted the 2001 amendments to the Agreed Structure Plan approved by the Council on 20 March 2001 and adopted by the Commission on 4 September 2001. However, the 2004 plan also superimposes the words "FUTURE CAFÉ" in red over the location of the site and contains a public open space schedule stating that the gross site area of the "café/deli site" is 1597 square metres.
It is clear that the "café/deli site" referred to in the public open space schedule is the site that is the subject of these proceedings, because the site has an area of 1597 square metres, is the only "café/deli site" referred to in the Agreed Structure Plan, as amended in 2001, and is in the location superimposed with the words "FUTURE CAFÉ" on the 2004 plan.
The design changes shown on the 2004 plan were approved by the Council on 16 March 2004 and were adopted by the Commission on 8 June 2004. The Tribunal, therefore, finds that the Agreed Structure Plan for the Precinct was further amended on 8 June 2004 under cl 6 of Sch 12 in terms of the Koltasz Smith letter of 4 February 2004 and the 2004 plan. The 2004 amendments did not change the use of the site, which remained "café/deli use". However, the area of the "café/deli site" was reduced in the 2004 amendments from 1805 square metres to 1597 square metres. In particular, it appears that the southern boundary of the "café/deli site" was moved slightly, perhaps in the order of approximately 4 metres, to the north, accounting for the 208 square metre reduction in area.

By letter dated 1 December 2005, the City informed the Commission that:
•it had received a request for clearance of subdivision conditions relating to a number of lots, including "Balance Lot 9000", that is, the site;
•certain subdivision conditions had been fulfilled; and
•"Balance Lot 9000 [that is, the site] does not form part of this clearance".
On 15 December 2005, the Commission endorsed its approval on Deposited Plan 47801, which included the site. Upon the registration of Deposited Plan 47801 by the Department of Land Information, a certificate of title appears to have been issued in relation to the site. As noted earlier, Mr Teo is now the owner of the site.

Is low density residential use permissible on the site?

Clause 1.3.2.1 of the Scheme states that "Table 1 – Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the various zones" (emphasis added). Table 1 – Zoning Table indicates that, in the Low Density Residential zone that applies to the whole Precinct, including the site, dwellings in the form of a single house or two grouped dwellings is a use that is permitted, and that dwellings in the form of more than two grouped dwellings is a use that is not permitted unless approval is granted by the Council (see description of the meaning of symbols used in Table 1 – Zoning Table in cl 1.3.2.2). Subject to the provisions of the Scheme, therefore, low density residential use is permissible on the site.
However, it is clear from the terms of Sch 12 that the indication in Table 1 – Zoning Table of the uses permitted in the Low Density Residential zone are subject, in the case of land within the Precinct, to the provisions of that Schedule. As noted earlier, cl 3 of Sch 12 states, in part, that:
"The subdivision, strata subdivision or development of any land within the Precinct shall be generally in accordance with the Agreed Structure Plan …".
The purpose of the Precinct, stated in cl 1 of Sch 12, is "to facilitate and permit the progressive development of the land for a predominantly low density residential estate". Clause 4 requires that the Structure Plan shall adequately address "the proposed development, distribution of land uses and their relationship to adjacent landholdings" (cl 4(c)).
Finally, cl 7 gives priority to the provisions of the Agreed Structure Plan over the provisions of the Scheme by stating that "[e]xcept as otherwise provided for under the Agreed Structure Plan … the use, development or subdivision of land shall be in accordance with the provisions of the Scheme".
The site is identified in the Agreed Structure Plan, as amended in 2001 and as further amended in 2004, as the location of the scaled-down and relocated "Village Centre" and as the "café/deli site". As the scaled‑down and relocated Village Centre, the site "is intended to provide … for the immediate retail needs of the resident population" ‑ as stated at page 27 of the Proposed Structure Plan ‑ although not including smaller specialty/boutique stores.
The superimposition of the words "FUTURE CAFÉ" in red over the location of the site in the 2004 plan does not involve any change of use for the site, but rather is a shorthand description of the change of use for the site effected by the 2001 amendments to the Agreed Structure Plan. This is clear from the fact that the covering letter requesting the 2004 amendments does not refer to any change of use in relation to the site and that the site is not included in "area of structure plan revision" shown by blue shading on the 2004 plan and the description of the site as "café/deli site" in the public open space schedule on the 2004 plan. However, as noted earlier, the 2004 amendments reduced the size of the "café/deli site" by 208 square metres to the current size of the site.
The meaning of the words "café/deli" is not defined in the Scheme or in the Structure Plan as amended at any relevant time. However, they are ordinary English words to be given their natural meanings.
"Café" is relevantly defined in The Macquarie Dictionary (Macquarie Sydney, 4th Ed, 2005) at page 209 as "a room or building where coffee and light refreshments are served". "Deli" is relevantly defined at page 382, chiefly in relation to Western Australia and South Australia, by reference to the definition of "corner store" which means "a small local shop selling a range of goods for domestic consumption" (at page 326).
The designation "café/deli" in the Agreed Structure Plan, as amended in 2001 and as further amended in 2004, therefore means a place where coffee and light refreshments are served and a small local shop selling a range of goods for domestic consumption. The site is intended by the Agreed Structure Plan to meet the immediate retail needs of the resident population of the Precinct in terms of a café and deli.
Low density residential use is not permissible on the site under the existing planning framework, because low density residential use is not generally in accordance with the Agreed Structure Plan. In Grace Bros Pty Ltd v Willoughby Municipal Council & Ors (1980) 44 LGRA 400, Wootten J held at 406 as follows:
"The use of the words 'generally in accordance with' are obviously intended to allow for some deviation from the drawings referred to in the interim development orders. The reasons for allowing some latitude are obvious. The significance of any particular deviation will depend on the criteria by which it is judged. In this case we are concerned with town planning. From that point of view it seems to me that the alterations required by condition (ix) are not such that the consent is to a development not generally in accordance with the relevant plans. …"
The determination of whether the proposed development of land within the Precinct is "generally in accordance with" the Agreed Structure Plan involves an assessment of fact and degree, in a town planning context. Determined in that context, low density residential use of the site is not generally in accordance with the Agreed Structure Plan which identifies the site as a place where coffee and light refreshments are served and a small local shop selling a range of goods for domestic consumption, for the immediate retail needs of the resident population. Low density residential use is fundamentally different to café/deli use. Furthermore, low density residential use of the site would deny the resident population of the Precinct access to a café and deli to meet their immediate retail needs within the Precinct, because the site is the only land in the Precinct identified for café/deli use in the Agreed Structure Plan. As noted earlier, the development of the Precinct has been planned since 1999/2000 on the basis that the resident population would be able to satisfy their immediate retail needs in a facility adjoining the lake.
Mr PA Kyle, counsel for Mr Teo, made essentially five submissions in support of his contention that low density residential use is permissible on the site under the existing planning framework.
Mr Kyle's first submission is that:
•the effect of Table 1 – Zoning Table of the Scheme "is that two grouped dwellings will be a permitted use of [the site] (unless a higher density or different zoning is identified under the Agreed Structure Plan)";
•the Agreed Structure Plan as amended "currently identifies [the site] without any special identification for higher density residential use than two grouped dwellings" and without any identification for "Village Centre or any other zoning"; and
•"it follows that regardless of the validity or otherwise of the [Agreed Structure Plan] low density (two grouped dwellings) residential use is permissible on [the site] under the existing planning framework".
This submission is misconceived. There is nothing, in either the text or policy of the Scheme, including Sch 12, that suggests that only a higher density coding or the designation of a different zoning in the Agreed Structure Plan can have the effect that low density residential use is not permissible on the site. While the purpose of the Precinct, as stated in cl 1 of Sch 12, is to "facilitate and permit the progressive development of the land for a predominantly low density residential estate", the use of the word "predominantly" and the reference to "land uses" ‑ in the plural ‑ in cl 4(c) of Sch 12, clearly indicate that the Agreed Structure Plan is not limited to designation of a higher density. Furthermore, the Agreed Structure Plan is not intended to "zone" land. There are 18 zones in the Scheme area that are designated by cl 1.3.1.1. However, it is clearly within the contemplation of Sch 12 that the Agreed Structure Plan may specify a non‑residential land use in relation to any land in the Precinct, provided that it is consistent with a predominantly low density residential estate. The identification of the site in the Agreed Structure Plan as "café/deli", in a location not adjoining residential use and bounded by roads, public open space and the lake, involves the designation and distribution of land uses consistent with a predominantly low density residential estate.
Second, Mr Kyle submits that:
•the document prepared by Koltasz Smith entitled "Roselea Structure Plan Jones Street, Stirling" dated March 1999 is not an "Agreed Structure Plan" under Sch 12, "because it has not been adopted by the Council or endorsed by the [Commission]; and, alternatively,
•if that document is an "Agreed Structure Plan" under Sch 12, "there is real doubt as to the documents that comprise the plan because the documents purporting to be the plan and amendments to it that have been approved by the Council are not the same as the documents approved by the [Commission]"; and, further or alternatively,
•"it is difficult if not impossible to identify what provisions of any structure plan apply to [the site], particularly in light of the fact that the lot was created without the express approval of either the Council or the Planning Commission"; and
•"in light of the issues relating to the validity and/or effect of the structure plan the permissible use of [the site] can only be determined by reference to the provisions of the [Scheme] itself (including [Sch 12])".
On 21 September 1999, the Council "endorsed" the document entitled "Roselea Structure Plan Jones Street, Stirling" dated March 1999 and the technical appendix dated April 1999 subject to satisfactory modifications in accordance with the Executive Manager Development's reports dated 8 and 15 September 1999, and resolved to forward the endorsed Structure Plan to the Commission for endorsement. While the Council used the word "endorsed" to describe its role under Sch 12, rather than the correct term "adopt", the terms are relevantly synonymous; "endorse" means, relevantly, "to approve; give support to" (The Macquarie Dictionary, page 470). Furthermore, cl 5 of Sch 12 authorised the Council to adopt the Structure Plan with modifications and subject to such conditions as it considers appropriate. The fact that the Council adopted the Structure Plan subject to satisfactory modifications in accordance with its officer's reports does not mean that it did not, relevantly and in substance, adopt the Structure Plan under Sch 12.
Although there is no direct evidence that the Structure Plan "adopted" by the Commission in 2000 was the document entitled "Roselea Structure Plan Jones Street, Stirling" dated March 1999 and the technical appendix dated April 1999, modified in accordance with the Council's Executive Manager Development's reports dated 8 and 15 September 1999, the Tribunal infers that this was, in fact, the case, because:
•the Council resolved to forward the Structure Plan that it adopted as modified in accordance with its officer's reports to the Commission for endorsement;
•the Council is the authority responsible for forwarding the Structure Plan that it has adopted to the Commission for endorsement under cl 5 of Sch 12;
•as discussed earlier, following the Council's resolution on 21 September 1999 to endorse the Proposed Structure Plan subject to satisfactory modifications in accordance with the Executive Manager Development's reports dated 8 and 15 September 1999, discussions took place between Koltasz Smith and the City, including a meeting on 15 December 1999, and Koltasz Smith submitted the plan dated 16 October 1999, which the City appears to have regarded as reflecting satisfactory modifications in accordance with its September 1999 resolution and consequently forwarded to the Commission for endorsement in late December 1999;
•the Commission "adopted" the Structure Plan forwarded to it subject only to the five matters referred to at [22] above, which were each matters of detail, not of substance; and
•the Structure Plan adopted by the Commission was the subject of a number of further dealings involving the landowner, the Council and the Commission, resulting in amendments that were, relevantly and in substance, adopted by the Council and endorsed by the Commission in 2001 and 2004, without any issue having been raised by any of these parties in relation to the terms of the Agreed Structure Plan.
Furthermore, while the Commission apparently used the word "adopt", rather than "endorse", in relation to its role under Sch 12, the relevant meaning of "adopt" is "to vote to accept" (The Macquarie Dictionary, page 18), which is essentially synonymous with the relevant meaning of "endorse", namely, "to approve; give support to" (page 470). It is also apparent from the Commission's letter of 21 March 2000 that it understood that it was exercising the power and discretion under Sch 12.
It is not difficult to identify what provisions of the Agreed Structure Plan apply to the site. Until its amendment in 2001, the Agreed Structure Plan comprised the Proposed Structure Plan with the modifications required by the Council in September 1999, which were ultimately reflected in the 16 October 1999 plan. In 2001, the Agreed Structure Plan was amended in terms of the letter from Koltasz Smith to the City dated 26 February 2001 and the plan dated 2 May 2001. In 2004, the Agreed Structure Plan, as amended in 2001, was further amended in terms of the letter from Koltasz Smith to the Council dated 4 February 2004 and the 2004 plan. It is clear that the Agreed Structure Plan, as originally adopted by the Council and endorsed by the Commission, depicted the site as public open space. It is also clear that the Agreed Structure Plan, as amended in 2001 and as further amended in 2004, designates the site as "café/deli site".
Mr Kyle points to differences between Figure 9 in the document entitled "Roselea Structure Plan Jones Street, Stirling" dated March 1999 and the plan depicting the Structure Plan endorsed by the Commission in 2000. However, as Mr A Roberts, counsel for the City, observed, the differences between the two plans are not surprising, because the Council adopted the Structure Plan subject to modifications.
For reasons set out below in relation to Mr Kyle's third and fourth submissions, the amendments made to the Agreed Structure Plan in 2001 and 2004 are valid and effective according to their terms.
It follows that the Agreed Structure Plan is a valid and effective document under the Scheme and, in accordance with Sch 12, regulates development and use of the site by designating the site "café/deli site" since the amendments made in 2001. I note, however, that the effect of Mr Kyle's submission ‑ if it were correct ‑ would be that no use of the site ‑ whether low density residential use or any other use ‑ would be permissible under the existing planning framework, because cl 3 of Sch 12 mandates the existence of an Agreed Structure Plan before any development in the Precinct can take place.
Mr Kyle's third submission is that the amendments made to the Agreed Structure Plan in 2001 are invalid or alternatively unclear. In support of this submission, Mr Kyle notes that:
•the Commission "adopted" the 2001 amendments whereas cl 6 of Sch 12 requires that amendments be "endorsed";
•the Council resolution of 20 March 2001 to adopt the amendments was subject to the Structure Plan being amended to address the concerns outlined in the Executive Manager Development's report dated 6 March 2001; and
•the Commission's resolution to "adopt" the amendments was subject to "redesign of the internal 'Village Centre' subject to the provision of a 3 metre wide public access easement being provided over the Village Centre lot".
However, as I found earlier, the word "adopt", relevantly meaning "to vote to accept", is essentially synonymous with "endorse", which relevantly means "to approve; give support to".
The Structure Plan was amended to address the concerns outlined in the Executive Manager Development's report dated 6 March 2001. On 4 May 2001, Koltasz Smith wrote to the City, referring to the City's letter dated 26 March 2001 in which it set out the resolution of 20 March 2001, and to subsequent discussions, and enclosed the amended plan dated 2 May 2001. It appears that the City was satisfied that the plan dated 2 May 2001 addressed the relevant concerns and forwarded it to the Commission. This plan was received by the Commission on 17 May 2001 and "adopted" on 4 September 2001.
Finally, the Commission's requirement for the redesign of the "Village Centre", that is, the area of the site, subject to the provision of a 3 metre wide public access easement being provided over that lot is not an additional requirement, but simply reflects the proposal on the plan submitted by Koltasz Smith for a "pedestrian access easement" through the site.
Mr Kyle's fourth submission is that the 2004 amendment to the Agreed Structure Plan is invalid or unclear, because "there is no indication in the amendment of the effect of the endorsement of the words 'future café' over the land comprising [the site] in the map and there is no definition of the meaning of that endorsement in the Scheme, Schedule 12 or any structure plan documents".
However, as I found at [45] above, the superimposition of the words "FUTURE CAFÉ" over the location of the site on the 2004 plan did not involve any amendment to the Agreed Structure Plan. Rather, it is clear from the fact that Koltasz Smith's letter of 4 February 2004 does not refer to any change of use in relation to the site and that the site is not included in the "area of structure plan revision" shown by blue shading on the 2004 plan, and the description of the site as "café/deli site" in the public open space schedule on the 2004 plan, that the words "FUTURE CAFÉ" are simply a shorthand reflection of the café/deli use of the site imposed by the 2001 amendments. It appears that the only amendment made to the Agreed Structure Plan in relation to the site in 2004 was to reduce the size of the site by 208 square metres.
Mr Kyle's fifth submission is that, whereas conditions of subdivision approval for the site required the ceding of part of the site comprising pedestrian or dual use paths to the Crown or alternatively an easement, as the constructed paths across the site are not subject to public ownership or an easement, there is no inhibition on Mr Teo's right to develop the site for low density residential purposes.
This submission is misconceived. The fact that a condition of subdivision approval to facilitate public access across the site has not been fulfilled does not have the effect that development can take place in a manner not allowed by the Scheme. The Agreed Structure Plan, as amended in 2001 and as further amended in 2004, identifies the use of the site as "deli/café" and shows a "pedestrian access easement" running through the site to connect pathways in the public open space to the north and south of the site. For reasons set out earlier, the Scheme requires that development of the site shall be generally in accordance with the Agreed Structure Plan.

It follows that low density residential use is not permissible on the site under the existing planning framework.

Conclusion

The Tribunal has determined that low density residential use of the site is not permissible under the existing planning framework. The Agreed Structure Plan, as amended in 2001 and as further amended in 2004, identifies the site as "café/deli" and requires a pedestrian access easement through the site to connect pathways in public open space to the north and south of the site. Low density residential use of the site is not "generally in accordance with" the designation of the site as "café/deli" in the Agreed Structure Plan, and is not, therefore, permissible.

Orders

I make the following orders:
1.The preliminary issue is answered as follows:
"Low density residential use is not permissible on Lot 9000 Roselea Boulevard, Stirling under the existing planning framework."
2.The proceedings are adjourned to a further directions hearing at 11 am on 14 March 2008 in order to consider the further conduct of the matter.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER