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[2016] WASAT 6
General information, not legal advice.
State Administrative Tribunal (WA)
2016-02-04
Original judgment source is linked above.
The applicant sought the amendment of a detailed area plan (now known as a local development plan) so as to render the plan consistent with a development approval that had been given in relation to one of the buildings proposed in the plan. The Tribunal considered whether the principle of consistency of decisionmaking applied where there is on the one hand a decision to approve a development application on part of the site and, on the other hand, and subsequently, an application is made to amend a local development plan covering the whole of the site. The Tribunal determined that the principle did not apply because of the different type and focus of the decisions involved. As no argument was put forward that the changes to the building approved in the development application did, or should, cause a change to the desired planning for the remainder of the site, the Tribunal determined that the proposed amendment was unnecessary and should not be approved.
Bruhn and City of Joondalup [2014] WASAT 174
Dilatte v MacTiernan [2002] WASCA 100
Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129
Rossi and City of Bayswater [2010] WASAT 33
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194
1 On 2 May 2014 the Bethanie Group Pty Ltd (applicant) submitted a proposed amendment to the existing detailed area plan for Lot 14691 (HN2) Plantation Street, Menora (site). On 11 November 2014 the City of Stirling (respondent) decided to refuse to adopt the amendment. On 6 January 2015 the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision. By order of the Tribunal made on 20 March 2015 the respondent was invited to reconsider its decision. On 19 May 2015 the respondent affirmed its initial decision to refuse to adopt the amendment to the detailed area plan.
2 After a hearing on 22 September 2015 the Tribunal reserved its decision. Following are the reasons for decision and the decision of the Tribunal.
4 The Detailed Area Plan (DAP) for the site was prepared by the applicant and adopted by the respondent on 2 November 2010. The DAP proposed an aged care and retirement facility for the site. The main elements of the DAP are:
5 The proposed buildings in the DAP are arranged on the site so that the taller four and five storey buildings are located either in the centre of the site or near the boundary, with Yokine Reserve to the north. The heights of the buildings with frontage to Planation Street are either two storey (Buildings G and H) or three storey (Building F). Directly opposite the location of Building G, at the corner of Planation Street and Freeman Road, is the Perth Synagogue.
6 The applicant's proposed amendments to the DAP relate only to Building G. The amendments to Building G include:
7 a) an increase in height from a two storey to a four storey building including an undercroft level of car parking for 48 vehicles; and
8 b) an increase in the number of serviced apartments from 37 to 48.
9 Due to the proposed undercroft parking and the slope of the site in the location of Building G, the proposed building will present as a 3.5 storey building viewed from Planation Street. Having regard to the definition of 'storey' under the City of Stirling Local Planning Scheme No 3 (LPS 3), the proposed amended Building G is a four storey building. The applicant's explanation for the amendment was that its serviced apartment model required between 40 and 60 apartments in order for meals and hospitality services to be delivered in a cost effective manner.
10 The respondent's Planning and Development Committee considered the proposed amendment at its meeting on 4 November 2014 and resolved to recommend that the amendment be refused because:
11 a) the proposal was not consistent with the general scale, form and design of the singlestorey homes which constitute the predominant style in a number of buildings in the immediate locality; and
12 b) the proposal will have a detrimental impact on the amenity of the immediate area.
13 When the respondent considered the proposed amendment at its meeting on 11 November 2014, it refused to adopt the amendment.
14 On 18 December 2014 the applicant submitted a development application for Building G in the form of that building as in the proposed amendment to the DAP. On 11 March 2015, the Metropolitan North-West Joint Development Assessment Panel (JDAP) granted development approval for Building G.
15 The single issue raised in this application is whether the adopted DAP for the site should be amended to incorporate the form of Building G that was granted development approval by the Metropolitan North-West Joint Development Assessment Panel.
16 The site is zoned 'Private Institutions' under LPS 3. Clause 4.2.10 of LPS 3 states that the objectives of that zone are:
17 Clause 5.3.2 of LPS 3 requires that residential development not in the 'Residential' zone is to comply with the requirements for multiple dwellings under the R80 density coding.
18 Clause 5.12 of LPS 3 requires that all development on land the subject of an adopted detailed area plan is to comply with that detailed area plan. This requirement was inserted into LPS 3 by an amendment gazetted on 24 March 2015. However, this requirement is affected by cl 56(1) of the deemed provisions for local planning schemes incorporated into LPS 3 by the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) which came into force on 19 October 2015 under s 256(1) of the PD Act.
19 The PD Act provides for the making of regulations which prescribe provisions that are 'model provisions' or 'deemed provisions': s 257A and s 257B of the PD Act. Relevantly to this matter, 'deemed provisions' are applicable to all town planning schemes and prevail over any inconsistent existing provision on the scheme: s 257B of the PD Act. Regulation 10(4) of the LPS Regulations states as follows:
The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]
Furthermore, reg 8(1)(c) of the LPS Regulations expressly states that:
The documents that comprise a local planning scheme are the following
...
if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text those provisions[.]
Clause 56(1) of Sch 2 of the LPS Regulations states as follows:
A decision-maker for an application for development approval in an area that is covered by a local development plan that has been approved by the local government must have due regard to, but is not bound by, the local development plan when deciding the application.
20 A 'local development plan' is defined in cl 46 of Sch 2 of the LPS Regulations as:
In this Part
local development plan means a plan setting out specific and detailed guidance for a future development including one or more of the following
(a) site and development standards that are to apply to the development;
(b) specifying exemptions from the requirement to obtain development approval for development in the area to which the plan relates.
21 The DAP applicable to the site meets that definition. In addition, reg 79(2) of the LPS Regulations provides expressly that a 'detailed area plan' is to be taken to be the same type of planning instrument as a local development plan. Regulation 79(1) of the LPS Regulations provides that a 'planning instrument' made under the PD Act before the 'commencement day' (that is, 19 October 2015) and in accordance with the Town Planning Regulations 1967 (WA) (TP Regulations) (which were repealed by reg 78 of the LPS Regulations) 'continues in force as if it were a planning instrument of the same type made under the [PD] Act in accordance with these regulations'. The definition of 'planning instrument' in reg 77 of the LPS Regulations includes 'a local development plan': paragraph (d).
22 The requirement of cl 56(1) of Sch 2 of the LPS Regulations for the decision maker to have 'due regard to' the DAP when deciding a development application is inconsistent with the requirement of cl 5.12 of LPS 3 (that the development must 'comply with' the DAP). Therefore, to the extent that cl 5.12 of LPS 3 requires development to comply with the DAP, it is of no effect: see Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134, at [41] [51].
23 Part 6A of LPS 3 deals with 'Development (Structure Plan) Areas'. Within that part is cl 6A.16, which deals with detailed area plans. Clause 6A.16.8 permits variations to detailed area plans. However, cl 59 of Sch 2 of the LPS Regulations makes provision for amendment of a local development plan. The procedures for advertising a proposed amendment to a local development plan required by the LPS Regulations are substantially similar to those required under LPS 3, although there are some minor variations. Nothing turns on this.
24 The respondent also has a relevant local planning policy, the Private Institution Design Guidelines (PI Guidelines) that were adopted on 24 May 2011. That policy contains building height standards which restrict development to two storeys above natural ground level adjacent to lot boundaries and a maximum of four storeys above natural ground level on the remainder of the site. The PI Guidelines allow variations to its standards and requirements subject to satisfaction of the policy's objectives. Those objectives are:
25 The respondent submits that the proposed amendment to the DAP should be refused primarily because it would serve no useful purpose. The DAP forms part of the respondent's strategic planning framework and, as such, is conceptually and temporally distinct from the process of development assessment: see Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129, at [15] [17]; WA Plantation Resources Pty Ltd and City of Bunbury & Anor [2005] WASAT 194, at [50]. As such, the purpose of the DAP is to provide the relevant criteria or guidance for development on the site. Once development approval has been granted for any part of the site, that aspect of the DAP's work is effectively completed.
26 The applicant disagrees with this submission. It asserts that the DAP relates to the whole site and there is still a large part of the site yet to be built out. The applicant submits that there may be future development applications in relation to Building G, and asserts that any such application cannot be properly considered if the DAP does not accurately reflect the reality of what has been built, or at least approved to be built, on site. In addition, the applicant submits that the DAP is not a true strategic document but rather something between a strategic document and a development approval. It also asserts that the proposed amendment to the DAP will not change the planned overall strategy for the site.
27 The respondent submits that amending the DAP to reflect the development approval in relation to Building G would render the DAP at odds with the PI Guidelines. Given its role as a strategic planning document, the DAP should not be inconsistent with the respondent's policies. The applicant submits that it is not uncommon for a document such as the DAP to include variations from existing policy and this is not a reason to refuse the proposed amendment.
28 Primarily, the applicant submits that it is important that the DAP reflect the reality of what has been, or approved to be, constructed on the site in the interest of orderly and proper planning. As much of the development that is to occur on the site has yet to occur, it is important that the DAP stay current. In addition, given that planning approval has been given by the JDAP, the applicant submits the DAP needs to be amended to ensure consistency in decisionmaking. In support of this submission the applicant refers to the reasons for decision in Dilatte v MacTiernan [2002] WASCA 100, at [61] [62] (Dilatte) and Rossi and City of Bayswater [2010] WASAT 33, at [23] (Rossi).
29 The applicant submits that the planning framework is the same in relation to the development application for Building G and the application to amend the DAP, with no relevant change occurring since the JDAP's decision. It says the circumstances that apply to both decisions amount to a 'virtual duplication':(Dilatte at [62]) and therefore there must be consistency between the two decisions.
30 The respondent submits that the principle of consistency in decisionmaking as outlined in the cases relied upon by the applicant does not apply to the current circumstances. The circumstances under consideration in both Dilatte and Rossi concerned consistency between an initial and a subsequent development application. In this matter, on the one hand, there is a decision concerning a development application and, on the other, a decision concerning a DAP.
31 The Tribunal accepts, and there is really no dispute, that if the principle of consistency in decisionmaking applies, orderly and proper planning requires that the decision in relation to the application to amend the DAP must be consistent with the decision that has already been made in relation to the development application.
32 The two decisions under consideration here both relate to the same site. They involve consideration of the same building to be constructed on the same part of the site. Nonetheless, the circumstances under consideration in each decision are not the same. They do not involve a 'virtual duplication of circumstances and conditions': Dilatte at [62]. The principle of consistency in decisionmaking does not apply to the circumstances of this application.
33 Firstly, the focus of each decision is very different. The DAP, and any decision in relation to it, must be focused on the entire area of the DAP. The DAP's purpose is to coordinate and plan for development of the site as a whole. If there were no need for this, there would be no need for a local development plan. The focus of a development application is the development the subject of the application. Of course, it takes into account the context of the proposed development on the site as a whole and within the locality, but these are considerations rather than the focus.
34 Secondly, the role of each of the applications the subject of decision are different. The planning framework contemplates the development of a local development plan which will then guide individual aspects of development within the area the subject of the plan. In this way it does have somewhat of a strategic role. The fact that decisions in relation to a local development plan may be the subject of an application for review by an affected landowner does not change this. The point is, the local development plan is plainly intended to provide a guide, or plan, for an area, and due regard must be had to this planning when considering any development application within the plan area. The decision in relation to the development application for Building G must have been made having regard to the DAP, amongst other things.
35 The application to amend the DAP to make it consistent with the existing development application decision is, using a colloquial phrase, seeking to have the tail wag the dog. The DAP, as a local development plan, is the instrument that is intended to guide development of the site. In accordance with this, the development application in relation to Building G had to be determined having due regard to the DAP as it then existed. The applicant may, or may not, choose to construct Building G in accordance with the current planning approval. It could also decide to lodge an alternative development application for Building G. Any such application should be determined having due regard to the DAP as it exists at the time of the determination. Once Building G is constructed, the form of that development will be, to a varying extent, a relevant consideration when determining development applications for any other part of the site. However, this does not mean that the DAP needs to be amended to reflect the development approval for Building G. The DAP would need to be amended if the desired planning outcomes for the site, or part of the site, have or should be changed. The fact that lawful development may occur that is different to the currently expressed desired planning outcome for Building G in the DAP does not necessarily have this result.
36 It is not necessary for every development constructed on the site to be exactly the same as that foreshadowed by the DAP. This is because the approval of a development application in relation to some part of the area covered by a local development plan does not, at least since the commencement of the TP Regulations, require exact conformity with the local development plan. The current development approval in relation to Building G is an example of exactly that point. In that context, it would be absurd if a developer were required to apply to amend the related local development plan every time a development application was granted that included some variation in outcome to that proposed by the local development plan.
37 If an individual development application strays so far from a local development plan that it would be refused if one had due regard to the local development plan, then an applicant might seek to have the local development plan amended prior to lodging the development application. The determination of any such application would need to consider the proposed amendment within the broader context of the local development plan area as whole. That process was obviously not necessary in this case.
38 It might be that in some circumstances, the variation between a local development plan and a development approval given with respect to some part of the area of that plan has a consequential effect on the desired planning for the remainder of the area the subject of the plan. This is not such a case. No evidence was led to establish that the variation in Building G from the form of that building proposed by the DAP resulted in, or should result in, some change to the desired planning for the remainder of the site as contemplated by the DAP.
39 For all of these reasons, the application to amend the DAP is unnecessary and should be dismissed.
40 The applicant submits that the respondent should be ordered to pay the applicant's costs of the application fixed in the amount of $6,358. In making this application the applicant relies on s 87(4)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It says that the approval granted by the JDAP and the role the detailed area plan is required to play in the planning framework means that refusing to amend the DAP to accord with the JDAP approval amounts to inconsistency in decisionmaking, and is unreasonable. Given the Tribunal's findings above, this assertion cannot be supported.
41 In addition, the applicant submits that despite the warning given by the respondent's consultant in relation to the likelihood of cost consequences in its report to the respondent's council before it reconsidered the application to amend the DAP, the respondent still refused the application. Implicitly, the applicant is submitting that the respondent rejected reasoned professional advice in making its decision, one of the factors relevant to the exercise of the discretion in s 87(4)(b) of the SAT Act: see Bruhn and City of Joondalup [2014] WASAT 174 at [9].
42 In my view, the resolution of the issue in this matter depended significantly on the legal issue of whether the principle concerning consistency of decision making applied. This was not a matter apparently within the realm of expertise of the consultant who prepared the report the applicant refers to. The applicant also points to the reference in the consultant's report with respect to the respondent's legal advice in relation to the risks of a costs order. The reference pointed to does not, on its face, indicate that the respondent ignored its own legal advice. Legal advice to a party in relation to the risks of its case, or to a risk of a costs order being made, do not necessarily mean that the party acts unreasonably in choosing to defend its position.
43 In this case, a reasonably arguable legal submission was put forward on behalf of the respondent in support of its position. The issue for determination was one in relation to which reasonable arguments on both sides could be, and were, fully canvassed in the Tribunal. As such, even if the respondent had not been successful in terms of the outcome in this matter, this was not a matter that attracted consideration of a costs order pursuant to s 87(4)(b) of the SAT Act.
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2004) 137 LGERA 129