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[2013] WASAT 168
General information, not legal advice.
State Administrative Tribunal (WA)
2013-10-07
Mr P
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : KAKULAS and CITY OF STIRLING [2013] WASAT 168
Town planning - Development application - Conditions - Preliminary question - Whether condition 'mandatory' in nature and not reviewable in Tribunal - Policies - Parking requirements and cashinlieu policies - Special zoning and special controls in place - Town planning scheme apparently deferring to parking requirements found in complementary and interlocking local policies - Nature of policies in administrative law - Relationship of policies to the legal instruments authorising the making of and recognition of those policies - Tribunal determining that it had jurisdiction - Tribunal deciding that condition reviewable as source of parking requirements in condition found in written policy - Departure from that policy permissible where satisfactory planning case made out on the merits - Clear words needed to authorise 'quasilegislation' to in effect amend a town planning scheme - Query whether parliamentary authority would be needed in any event - Scheme not manifesting sufficient intention to elevate status of policy to controlling instrument - Preliminary question determined in applicants' favour
City of Stirling Local Planning Scheme No 3, cl 5.8, cl 5.8.1, cl 5.8.8, cl 6.9.5, cl 6.9.9, cl 10.3, cl 10.4
Preliminary question determined in applicants' favour
Tribunal has jurisdiction to review an apparently 'mandatory' condition
A preliminary question arose as to whether a condition imposed upon a development approval purporting to be a mandatory contribution of cashinlieu in relation to parking was reviewable in the Tribunal.
The parking contribution fixed by the condition and imposed by the City of Stirling arose out of the approval of a nonresidential development in a special control area which was governed by interlocking provisions of the City of Stirling's Local Planning Scheme No 3 and corresponding detailed written policies.
The relevant Scheme provisions, read with these policies, suggested, on their face, certain mandatory outcomes as regards the calculation of necessary parking and the amounts to be paid for any shortfall. However, all of the requirements were ultimately referenced to, or sourced, in written policies issued by the City of Stirling. Although the Scheme contemplated the existence of such policies, their status as policies remained just that.
The Tribunal determined that it had jurisdiction to review the disputed condition. The Tribunal held that clear legislative authority would be needed to elevate the policies to controlling instruments which effectively supplanted the Scheme. This is because a stream cannot rise higher than its source. The Scheme did not sufficiently manifest such an intention and, in any case, direct parliamentary approval might well be required.
The relevant policies were therefore capable of modification or variation in their application to the merits and the circumstances of any particular planning case. Thus the 'proportion of the required parking' will always be capable of being adjusted to produce the correct and preferable cashinlieu contribution outcome, having regard to the City of Stirling's stated policy preferences as regards parking in the special control area.
Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1
City of Subiaco v Busen Pty Ltd [2005] WASC 230
Government Employees Health Fund Ltd v Private Health Insurance Administration [2001] FCA 322; (2001) 65 ALD 377
Gray v Australian Securities and Investments Commission [2004] AATA 1235; (2004) 86 ALD 230
Municipal Council of Sydney v Commonwealth [1904] HCA 50; (1904) 1 CLR 208
Nelson v Repatriation Commission [2007] AATA 1069; (2007) 44 AAR 54
1 The preliminary issue identified by the parties requiring determination is whether the cash-inlieu contribution required by condition 1 of a planning approval issued by the City of Stirling (respondent or City) on 14 July 2012 is 'mandatory' under the City's Local Planning Scheme No 3 (LPS 3 or Scheme).
Payment of a cashinlieu for car parking contribution (construction cost) of $87,500 in accordance with clause 6.9.9(a)(iv) of Local Planning Scheme No 3 prior to the commencement of development.
3 I have had the benefit of very extensive oral and written arguments, including consideration of a number of lengthy written submissions filed between the parties. The parties' respective cases have been presented by very experienced senior and junior counsel.
4 I have concluded that the imposition of condition 1 is not mandatory and the Tribunal has jurisdiction to review the condition.
5 The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
6 The parties have agreed on a statement of agreed facts (dated 25 January 2013). That document gives the essential background and references to the planning framework relevant to the determination of the issue. So far as is relevant, that document provides as follows (references to documents filed in the Tribunal have been omitted):
'Payment of a cashinlieu of a car parking contribution (construction cost) of $87,500 in accordance with Clause [6.9.9(a)(iv)] of Local Planning Scheme No. 3 prior to the commencement of development.'
(a) located in the 'Scarborough Special Control Area'; and
(b) Local Planning Policy 5.5: Scarborough Design Guidelines - Special Beach Development Zone Design Guidelines; and
(c) Local Planning Policy 6.7: Parking and Access.
7 As appears from the statement of agreed facts (above), the site or subject land is zoned Special Beach Development and is located in the 'Scarborough Special Control Area'. The planning framework comprises three essential documents: the Scheme; the Scarborough Design Guidelines; and the Parking and Access policy.
8 The critical statutory provision is cl 6.9.9 of LPS 3. So far as is relevant, that clause provides as follows:
6.9.9 Cash-in-lieu for Car Parking
A proportion of the required parking shall be subject to a cashinlieu contribution as provided for under paragraphs a), b) and c) below, and where cash-in-lieu is required, the number of onsite parking spaces required shall be reduced by the number of spaces for which cash-in-lieu is payable.
Note: This means that where for example, 25% of the total non-residential parking requirement is to be subject to a cash-in-lieu payment, the actual cash payable will be based on only 12.5% of the requisite number of parking spaces.
Note: The purpose of this provision is to avoid a shortfall in parking contributions which would otherwise arise from a reduction in parking requirements based on assumptions of shared use of on-site parking facilities. This reduction has already been accounted for by the 50% reduction in contributions for non-residential parking.
9 Other relevant clauses found in LPS 3 include cl 10.3, which is the source of the power to impose conditions on planning approvals and cl 5.8, which deals generally with cashinlieu, particularly the limitation found in cl 5.8.8 as follows:
Where this Scheme or a local planning policy made under this Scheme contains provisions concerning the payment of cashinlieu of car parking spaces in particular parts of the Scheme area, those provisions shall apply to the exclusion of the provisions of clause 5.8.
10 The resolution of the preliminary question requires, in the first place, a proper analysis of the relationship between cl 6.9.9 of LPS 3 and the respondent's policy on parking and access (Policy 6.7). Then it will be necessary to consider that relationship in the light of some basic principles of public law.
11 It appears that it is common ground that the required parking, which is the subject of the cash-in-lieu contributions under cl 6.9.9 of LPS 3 is, as a first step, to be calculated or determined by reference to Policy 6.7. Assuming that it is applicable, cl 5.8.1 of LPS 3 makes such a link clear with the following express reference to written policies, as follows:
... an applicant for planning approval for a non-residential development or use may, if Council agrees, make a cash payment to the Council in lieu of providing all or any of the number of car parking spaces required under a Local Planning Policy ... (emphasis added).
12 In any case, Policy 5.5 contemplates, in effect, (at page 10) an interlocking regime as to parking between those guidelines, cl 6.9.9 of LPS 3 and Policy 6.7.
13 Thus, according to this framework, the following prima facie obligations appear to result with respect to the applicants' proposed development:
14 These obligations come about because of the apparently mandatory nature of the language found in cl 6.9.9(a) of LPS 3, language which is replicated at page 10 of Policy 5.5.
15 We may accept that, at least for present purposes, the mechanical application of these provisions leads to the sum of $87,500 being calculated as the amount due on this analysis.
16 However, even if one were to accept the respondent's general arguments on the mandatory nature of the cash-in-lieu obligations, this Tribunal would nevertheless have a review jurisdiction to decide whether the calculations and cost components had been correctly applied or calculated. Generally speaking, administrative law knows very few truly self-executing or self-operating administrative decisions: see Nelson v Repatriation Commission [2007] AATA 1069; (2007) 44 AAR 54 (Forgie DP).
17 I accept that cl 6.9.9 of LPS 3 cannot be read in isolation from the written policies that complement it, or are contemplated by its operation. However, there is an important issue of principle raised by the suggestion as was, in effect, advanced by Mr Pettit SC and Mr Roberts (for the respondent) here, that such policies control the scope of the clause, in that they mandate a particular outcome that both the respondent and, on review, this Tribunal must give effect to.
18 The respondent submitted that cl 6.9.9 of LPS 3 prevents any reduction in parking standards once its provisions are properly understood and applied.
19 The requirements for parking standards are ultimately, however, found in Policy 6.7. Any discretion that that parking policy contains (see, for example, clause 12 dealing with variations in the application of the policy and the fixed parking ratios to be applied 'unless otherwise approved by Council' - clause 5.1), it is submitted by the respondent, is displaced by, for example, the mandatory language found at page 10 of Policy 5.5 read with cl 6.9.9(c)(i) of LPS 3, which requires 'no reduction in parking standards otherwise applicable under the Scheme'. See also cl 5.8.8 of LPS 3 (set out above) referring to certain local planning policies on cash-in-lieu as displacing the general Scheme provisions on cash-in-lieu.
20 In my view, a number of foundational building blocks of public law militate against the interpretation contended for by the respondent.
21 The first is the axiomatic proposition that a written policy cannot by itself, and no matter how clear its terms, fetter a statutory discretion or, for that matter, alter, detract from or impair a legislative instrument. This is because policy must conform to any law.
22 Secondly, and related to this point, there is the well known public law maxim expressed as 'the spring cannot rise higher than its source': see, for example, Municipal Council of Sydney v Commonwealth [1904] HCA 50; (1904) 1 CLR 208 at 230; Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 258 - '[A] stream cannot rise higher than its source.' Thus, the parking policy that is the 'spring', as a subsidiary instrument, receives its operational validity by being issued under and being recognised by LPS 3, which is the superior 'source'.
23 To elevate this policy, in effect to controlling status, would require, I think, assuming that it were possible, legislative intention expressed in clear terms to support the legislative instrument itself being changed by what is here, in effect, fairly ephemeral 'quasi-legislation' (that is, a written policy).
24 And, to permit this to occur without appropriate legislative authority would, I think, tend to undermine the rule of law. Compare the discussion, at [1.20], in Pearce and Argument, Delegated Legislation in Australia, 4th edition (2012).
25 Public law recognises a certain distinction as to the nature of policies which was discussed, for example, in Gray v Australian Securities and Investments Commission [2004] AATA 1235; (2004) 86 ALD 230 (Gray). There, the Administrative Appeals Tribunal observed what the Federal Court had noted, at [28], in _Government Employees Health Fund Ltd v Private Health Insuranc_e Administration [2001] FCA 322; (2001) 65 ALD 377. The Tribunal said in Gray, at [34]:
... the Full Court of the Federal Court noted the distinction between a policy or guideline which limits a discretion conferred by statute, and a policy which allows for the discretion to be exercised whilst providing guidance as to how it might be exercised: Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 641. In this case, it is the second limb that applies in relation to [the relevant legislation under discussion].
26 The respondent argues for the former status (or 'first limb' status) that is, here, we have a policy or guideline which, in effect, limits any discretion otherwise arising. Essentially, the applicants contend that the relevant policy has the familiar status of the 'second limb' of that distinction.
27 In order for the respondent's argument to succeed, it would require, as I have already suggested, and assuming that it were possible, sufficient expression of legislative intendment in the authorising source (that is, LPS 3), either by express words or possibly by necessary implication. Arguably, such an intention might have to be found in the Planning and Development Act 2005 (WA) itself.
28 However, for present purposes, and in any event, I do not read cl 6.9.9 of LPS 3, or any other Scheme provision, as manifesting sufficient legislative intention to elevate written policy to the status that the respondent seeks for it. For express words something akin to the following would be, at a minimum, required in connection with, say, cl 6.9.9 of LPS 3:
Notwithstanding any provision of the Scheme to the contrary, the required parking shall be as calculated as appears in a local planning policy as made from time to time. The Council shall apply that policy without any variation being permitted. The cash-in-lieu contributions for parking calculated by reference to that policy in the scheme are also not capable of variation and shall be applied by the City.
29 There would be, of course, many better drafted variations available on this theme. However, as I have indicated, it may be doubted whether a limited legislative body such as a local government could seek to elevate policy by such an act of sub-delegation to achieve the status of effectively amending the Scheme from time to time by these means on such a significant regulatory issue.
30 Essentially the policy that would do this would then become conceptually something other than policy, as that term is currently understood and used in LPS 3.
31 Such arguments would, I think, apply a fortiori to any suggested implication to the same effect.
32 All of this is, of course, consistent with City of Subiaco v Busen Pty Ltd [2005] WASC 230 (which was cited in these proceedings) where the 'policy' on car parking requirements appeared as a table in the City's Scheme itself, and the Scheme '[did] not give rise to a general discretion to permit an applicant for development approval to make cash payments in lieu of providing car parking spaces' (at [60]).
33 If what is set out above is the correct position as regards that contended for mandatory reading of the clause, how then is the clause to be read? In other words, what work does the clause have to do?
34 In my view, the only sound way in which the clause can be read in the light of the principles discussed above is to acknowledge that the requirements in cl 6.9.9 of LPS 3 ultimately flow from the application of a written policy. And, being policy, it is always open to the decision-maker to depart from its application for any satisfactory planning case made out, having regard to the merits of the particular matter. This is essentially how Mr Jackson, for the applicants, contends that the clause should be read.
35 Thus, what is required as concerns parking in the 'Scarborough Special Control Area' and 'Special Beach Development' zone (that is, the 'proportion of the required parking ...') must always be capable of ultimately being adjusted to produce the correct and preferable cash-in-lieu contribution outcome, having regard to, of course, the City's firmly stated policy preferences as regards parking.
36 As I have reached these conclusions as to the proper interpretation of cl 6.9.9 of LPS 3, having regard to its own terms and the status of written policy generally, it is unnecessary, in my view, to consider any alleged implications that flow from other clauses of the Scheme, such as cl 6.9.5, dealing with plot ratio matters in the 'Special Beach Development' zone. Such provisions have, at best, a remote relationship to the purposes and effect of cl 6.9.9 in LPS 3.
37 Finally, I should note that, of course, nothing that I have said here should be taken as necessarily suggesting that no contribution whatever would be required from the developers. The importance of adequate parking in this special control area is readily apparent from what has been discussed above.
38 I will hear from counsel on the next steps to be taken. One possibility for the resolution of the matter would be to refer the matter for mediation to, in effect, negotiate the extent of the application of or modification, if any, of condition 1.
39 For the reasons given above, the Tribunal has determined that it has jurisdiction to review condition 1. The orders of the Tribunal will therefore be:
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1951) 83 CLR 1
(1904) 1 CLR 208