Citation : ZITO & ANOR v TOWN OF COTTESLOE [2004] WATPAT 77

Appeal - Town Planning Appeal Tribunal - Town of Cottesloe Town Planning Scheme No 2 - Meaning of "storey" - Whether workshop a storey - Whether discretion to permit development greater than two storeys on property - Whether specific limitation subject to general discretion - Whether determination of Council in relation to natural ground level within jurisdiction of Town Planning Appeal Tribunal to determine - Whether discretionary decision

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal Act 2004 (WA)

Town Planning and Development Act 1928 (WA)

Chambers v Maclean Shire Council (2003) 57 NSWLR 152

City of Cockburn v McNiece Industrial Systems Pty Ltd unreported; FCt SCt of WA; Library No 5523; 24 September 1984

Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Re City of Joondalup; Ex parte Mullaloo Progress Association [2003] WASCA 293; (2003) 132 LGERA 243

Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284

Deepblue Enterprises Pty Ltd v Town of Port Hedland [2003] WATPAT 32

Director-General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281

Millawa Pty Ltd v City of Swan [2003] WATPAT 78

Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199; (2001) 115 LGERA 152

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175

1 MILLER J: This is an appeal from a decision of the Town Planning Appeal Tribunal ("the Tribunal") delivered by Deputy President Chaney SC on 21 April 2004, when the Deputy President dismissed an appeal of the appellants from the refusal of a development application by the Council of the respondent. The development application related to the construction of a residence at 6 Clarendon Street, Cottesloe and was a second application for approval for the same residence. The first application had been refused primarily on the ground that the development exceeded the number of storeys permitted under the relevant provisions of the Town of Cottesloe Town Planning Scheme No 2 ("TPS2"). The second application, which was also refused and which was the subject of the appeal to the Tribunal, contained a modified plan for the residence, the primary modification being to the configuration of what was termed the basement level of the proposed residence.

2 The appeal to this Court was instituted at a time when the Tribunal was in existence. The provisions of s 67 of the Town Planning and Development Act 1928 (WA) ("the Act") gave a person aggrieved by a determination of the Tribunal the right to appeal to this Court against that determination. Such an appeal could only be on a question of law (s 67(2)).

3 Section 67 of the Act was repealed by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 ("the Repeal Act") s 1215. Section 1202 of the Repeal Act repealed the provisions which established the Tribunal. It therefore no longer exists.

4 However, the provisions of the State Administrative Tribunal Act 2004 ("the SAT Act") provide (s 167(4)(d)(ii)) that any "devolved matter" determined by a "former adjudicator" which was the subject of an appeal that was not determined before the transfer day (1 January 2005) is to continue to be dealt with as if the law in force immediately before the transfer day had continued to apply. A "devolved matter" would include what was previously called a Town Planning Appeal. A "former adjudicator" would include the Tribunal (s 167(1) of the SAT Act).

5 Under s 167(4)(b) of the SAT Act, where a former adjudicator does not continue to exist, any devolved matter partly or fully heard but not determined by the former adjudicator is transferred to and continues before the SAT. That is not this case, as the devolved matter was fully heard.

6 Under s 167(4)(c), if the former adjudicator continues to exist, any devolved matter fully heard before but not determined by the former adjudicator is to continue to be dealt with and determined by the former adjudicator unless transferred to the SAT. That is not this case.

7 Under s 167(8), the law in force before the transfer day continues to apply to enable a former adjudicator to continue to deal with and determine a matter under s 167(4)(c) and (my emphasis) to enable an appeal to be made, or continued, and dealt with according to s 167(4)(d) or (7). The first limb of s 167(8) is clearly inapplicable but the second limb is relevant to these proceedings. It says basically what s 167(4)(d)(ii) says, namely that appeal proceedings will continue to be dealt with by the Appeal Court in which notice of appeal has been filed, and be dealt with as if the law in force immediately before 1 January 2005 continues to apply.

8 There is nothing in the SAT Act which stipulates what powers the Appeal Court will have. The power of this Court under O 65 r 10 of the Rules of the Supreme Court 1971 (WA) is to "confirm, quash or vary the decision of the Tribunal against which the appeal is made or remit the matter to the Tribunal for rehearing". As the Tribunal no longer exists, it would not be possible to remit the matter to it for rehearing. Nothing within the SAT Act or in any other Act to which I have been referred gives that power. It follows that the power of this Court would be limited to confirming, quashing or varying the decision of the Tribunal.

9 The relevant application of the appellants was an application for planning and building approval dated 3 September 2003 and it was submitted by Hillam Architects. It was for a single residence described as a "new 2-storey and basement brick and metal residence". The approximate cost of the development was $1.5 million.

10 The application was dealt with by the Council of the respondent at its meeting on 27 October 2003 and rejected. It appears from the minute of rejection that additional plans had been submitted on 5 October 2003 but nothing turns on that.

11 The reasons for the rejection include a determination that the natural ground level at the centre of the site was 33.6 AHD for the purposes of cl 5.1.1 of TPS2. The reasons for rejection were as follows:

"(a) The proposed development exceeds the maximum number of storeys permitted under Clause 5.1.1(b)(ii) of the Town Planning Scheme text;

(b) The proposed development exceeds the maximum wall and ridge heights permitted under Clause 5.1.1(c) of the Town Planning Scheme text;

(c) The proposed development exceeds the maximum wall and ridge heights permitted under Town Planning Scheme Policy No 005 - Building Heights;

(d) The development does not comply with the objectives of the Residential Design Codes and the objectives for Design Element 3 - Setbacks as the proposed development:

(i) does not comply with the acceptable standards for this Design Element 3 along the western and eastern side boundaries;

(ii) the variations do not satisfy the performance criteria in that the development will have an adverse impact on the adjoining properties to the east and west due to the building bulk of the proposed development;

(e) Having regard to the provisions of Clause 5.1.2(a) and (d) of the Town Planning Scheme text, the proposed development and the surrounding development, Council is of the opinion that:

(i) the large bulky nature of the proposed development will adversely impact on the views and the amenity of the adjoining properties due to its length, height and set backs; and

(ii) the amenity of the adjoining properties will be adversely affected by the proposed building bulk."

12 The appellants were contending that the natural ground level at the centre of the site was 34.3 AHD. Whether this was a matter which could have been the subject of an appeal to the Tribunal is a live question.

13 It is necessary to set out the provisions of cl 5.1 of TPS2 which governed the determination of the application. Part B of TPS2 is headed "GENERAL PROVISIONS" and cl 5.1 in its entirety is as follows:

(a) General Policy

Council's general policy for development within the district favours low rise development of no more than 2 storeys to maintain privacy, views and general amenity notwithstanding that Council may consider the circumstances and merits of each case in terms of the amenity and development control provisions of this Scheme. In exercising height control policies Council will not regard as a storey undercroft space used for lift shafts, stairways, or meter rooms, bathrooms, shower rooms, laundries, water closets or other sanitary compartments or the parking of vehicles where that space is not higher than 1 metre above the footpath level measured at the centre of the site along the boundary to which the space has frontage or where that space is below the natural ground level measured at the centre of the site as determined as Council.

(b) Specific Policy

(i) Foreshore Centre Zone - Two storeys height limit except in exceptional circumstances where the amenity of the area would not be adversely affected, the Council may permit buildings up to three storeys in height.

(ii) Residential Zone - The maximum building height shall be two storeys except that Council may permit a third storey to be located within the roof space of a dwelling provided that the development complies with the maximum wall and roof height provisions stipulated at paragraph (c) of this clause and also provided that in Council's opinion, the dwelling will retain the appearance of a two storey dwelling and will not adversely affect local amenity. On lots 19 to 25 inclusive and lot 341 fronting Marine Parade between A Reserve 1203 and the northern boundary of the Foreshore Centre Zone, development shall only be single storey but may be stepped up the naturally rising ground if advantage is taken of the higher density coding nominated on the Development Guide Map. Otherwise development may only occur in accordance with the lower density coding and shall not exceed 2 storeys in height.

(iii) Hotel Zone - Refer to sub-clause 3.4.5(b)(v).

(c) Measurement of Building Height

For the purposes of measuring 'storey' and hence 'building height', Council shall generally follow the following formula, except in particular cases where natural ground forms indicate that a variation is warranted provided that the amenity of neighbouring areas is not unreasonably diminished.

The maximum building height shall be measured from the natural ground level at the centre of the site as determined by Council to the crown of the roof and shall be -

Single Storey - Roof Height: 6.0 metres

Two Storey - all Height: 6.0 metres

- Roof Height: 8.5 metres

Subsequent Storeys - Wall Height: 6.0 metres plus; 3.0 metres per storey

- Roof Height: 8.5 metres plus; 3.0 metres per storey

Variations may be permitted in the case of extension to existing buildings."

14 The grounds upon which the appellants appealed to the Tribunal were:

"1. The natural ground level is 34.3AHD.

2. The lower level should be considered 'undercroft space' within the meaning of the Town of Cottesloe Town Planning Scheme No 2 ('Scheme') and accordingly the proposal complies with clause 5.1.1(b)(ii) of the Scheme.

3. Given the natural ground level, the proposal complies with clause 5.1.1(c) of the Scheme as to maximum wall and roof height.

4. In any event, a variation is warranted pursuant to the provisions of clause 5.1.1(c) because the amenity of neighbouring areas is not unreasonably diminished.

5. On the western side of the development, the setback complies with the Residential Design Codes. For the eastern side, the wall can be considered as two parts and then split again, an interpretation open under the Residential Design Codes and therefore complies. In any event, any variation is minor.

6. The proposal is of an architectural style and quality that does not deteriorate the amenity of the locality and in fact enhances the streetscape and the variation in built form."

15 The Deputy President of the Tribunal considered that the appeal raised three primary issues:

(1) matters relating to the proposed height of the development;

(2) the question of compliance with setback requirements; and

(3) general issues of orderly and proper planning and amenity.

16 The Deputy President pointed out that the second and third issues fell for consideration only if issues arising in relation to the question of height were determined in favour of the appellant.

17 On the question of height the Deputy President saw three sub-issues:

(1) whether there was any discretion open to the Council to approve the development; and

(2) whether the proposed development included a third storey;

(3) whether the determination of the Council of the respondent of the natural ground level at the centre of the site involved the exercise of a discretion such that it might be the subject of an appeal in the Tribunal.

18 The Deputy President concluded the first issue contrary to the appellants. He held that:

(1) there was no discretion under TPS2 to permit a height of more than two storeys within a residential zone by reason of the provisions of cl 5.1(2) and there was no general discretion to approve buildings of more than two storeys in a residential zone by reason of the provisions of cl 5.1.1(a).

(2) The proposed development involved construction over three levels and the area described as a basement comprised a substantial garage, a garden store, a bathroom, cellar, laundry and workshop. Above these areas there were two storeys. By reason of the second limb of cl 5.1.1(a) of TPS2, there was an exclusion from the categorisation of "storey" of certain undercroft space, but this exclusion did not include "garden storage" and/or "workshop". There was no general discretion under TPS2 to exclude areas other than those contained in the second limb of cl 5.1.1(a) from the calculation of the number of storeys. The Council therefore had no discretion to approve the development in the form in which it was submitted.

19 Although not required to do so, the Deputy President determined that TPS2 specifically conferred upon the Council of the respondent the role of determining the natural ground level at the centre of the site and this determination did not involve any discretionary decision. The result was that an appeal against the determination of the natural ground level by the Council was not open to the Tribunal.

20 The Deputy President did not find it necessary to deal with the question of setbacks.

21 The grounds of appeal before this Court are as follows:

"1. The Tribunal erred in law in determining that the determination of natural ground level was not within the jurisdiction of the Tribunal to determine because it was not a discretionary decision;

2. The Tribunal erred in law in determining the determination of natural ground level was not an objective fact that was a precondition of the exercise of discretion on a hearing de novo before the Tribunal;

3. The Tribunal erred in law in determining that an appeal against the determination of the Council as to natural ground level when the appeal was properly before the Tribunal by the refusal of the application was not open;

4. The Tribunal erred in law in determining that the workshop proposed was a storey because of the physical attributes of the space rather than the intended use.

5. The Tribunal erred in law by asking itself the wrong question as to the number of storeys and by taking into account the provisions of clause 5.1.1.(a) of the Town of Cottesloe Town Planning Scheme No 2."

22 The thrust of the appellant's appeal to this Court was fundamentally different from that contained within the appellant's submissions to the Tribunal. Ground 5 of the grounds makes this clear. It contends that the Tribunal erred by asking itself the wrong question as to the number of storeys of the development and by taking into account the provisions of cl 5.1.1(a) of TPS2. In other words, the appellants no longer contended that they fell within the exception contained within the second limb of cl 5.1.1(a).

23 It is convenient to deal with these grounds first. They run into each other.

24 It was argued that an "undercroft space" should, for the purposes of cl 5.1.1(a) of TPS2 include uses other than those nominated, provided they are not to be used as habitable space. Accordingly, the use of a garden storage area and workshop within the proposed undercroft space should come within the exception and the area therefore not be regarded as a storey.

25 However, in my view, cl 5.1.1(a) (second limb) makes it very clear that in exercising height control policies, the Council will not regard as a storey undercroft space used for any one or more of the purposes nominated in the clause but no other. There is no basis, in my view, for arguing that the uses of garden storage and workshop can be added to the list which is contained within the clause. Whilst it may be that passageways between the nominated areas will be required but are not mentioned, that is no warrant for saying that an area such as one devoted to garden storage or workshop, although not a habitable space, is to be included in the exception of undercroft space which does not constitute a storey.

26 Ground 5 also raises the question whether the Tribunal erred in law in asking itself the wrong question as to the number of storeys. It is contended that cl 5.1.1(b)(ii) deals only with maximum building height because the opening words are "the maximum building height shall be two storeys" and under cl 5.1.1(c), it is the height of the development which indicates the number of storeys. In other words, the clause does not require a finding of a number of storeys but prescribes the maximum height in terms of metres above natural ground level. Further, it is argued that cl 5.1.1(b) is only concerned with height above natural ground level and is unconcerned with storeys below ground level. The number of storeys is thus irrelevant.

27 It is further contended that the operation of cl 5.1.1(a) is confined only to zones other than a zone for which there is a specific policy (such as foreshore centre zone and residential zone) and which prescribe the permissible number of storeys. Reference was made to other zones such as the business zone (cl 3.4.3 of TPS2) where no specific indication of the number of storeys is contained and to service stations and places of public assembly (cl 3.4.8) where, in considering development applications, the Council has to be guided by height and boundary setback of buildings in adjoining areas and amenity and parking provisions but there is no specific provision in relation to storeys.

28 The submission of the appellants on this ground should be rejected. Clause 5.1.1(b) and (c) together make it clear that the maximum permissible height of a building in metres is to be determined by the number of storeys and not vice versa. This is because there is a prescribed maximum height for a single storey and in the case of buildings containing more than two storeys, a maximum height per storey. To determine the maximum permissible height of a building it is first necessary to determine the permissible number of storeys and then, having determined the number of storeys, to go to the maximum building height of the building. In the case of a residential zone, there is a maximum building height of two storeys, save that a third storey may be permitted to be located within the roof space of a dwelling. In my view this means an attic or similar, within the roof space of a storey, thus leading to what would technically be a third storey, but limited by reason of the fact that it is required to be within the roof space of an existing storey. This is made clear by the provision that the dwelling must retain the appearance of a two-storey dwelling.

29 When measuring storeys and hence building height, the Council has a formula which it will follow except in particular cases where the natural ground levels indicate that a variation is warranted and then only provided that the amenity of neighbouring areas is unreasonably diminished. The formula is set out at the end of cl 5.1.1(c). There is a capacity for variation in the formula, but only after the number of storeys has been determined. In other words, in a two-storey development the wall height may be varied from 6.0 metres where natural ground levels indicate that a variation is warranted and provide that the amenity of neighbouring areas is not unreasonably diminished. Likewise, roof height. It is all, however, predicated on the number of storeys first being determined.

30 It follows that I cannot accept the appellant's submission that it is the height that indicates the number of storeys. In my view it is the number of storeys that indicate the height. Accordingly, I consider that grounds 4 and 5 of the grounds of appeal should be dismissed.

31 It is strictly unnecessary for me to deal with these grounds. However, in my view, there is no substance in them.

(a) The determination of the extent of any variation in cl 5.1.1(c) requires the determination of the actual height of the proposed dwelling.

(b) The application of Policy Number 005 of the respondent's Town Planning Scheme Policy ("building heights") requires a determination of the actual height of the proposed dwelling and the method by which natural ground level is determined on a site where the measurement at the centre is not appropriate.

(c) There were multiple methods for determination of the natural ground level of this site.

(d) The Tribunal, hearing the matter de novo, had to determine if the variation was to be applied under cl 5.1.1(c).

(e) The determination of the height of the proposed dwelling and the determination of the method to be applied to determine natural ground level were jurisdictional fact questions which had to be answered by the Tribunal.

(f) The Tribunal erred in law in determining the question of natural ground level on the basis that it lacked jurisdiction.

33 It is further argued that the Tribunal was required on the evidence before it to make its own determination of the natural ground level because the respondent had been in error in relation to its measurement. The argument was that the natural ground level was the level immediately prior to the development of the proposed dwelling and not the natural ground level based upon 1934 maps of the Metropolitan Water Sewerage and Draining Board which were relied upon by the respondent Council.

34 The Deputy President concluded that TPS2 specifically conferred upon the Council the role of determining the natural ground level and an appeal against that determination to the Tribunal was not open. The Deputy President took the view that whatever might be the merits of objections taken by the appellants to the method by which the natural ground level was determined, they were arguments which could only properly be dealt with in the context of proceedings for judicial review or declaratory relief. I respectfully agree with the conclusion reached by the Deputy President. I do not accept the argument of the appellants that the determination of natural ground level was a jurisdictional fact question that had to be answered by the Tribunal in order to proceed to consider the application of cl 5.1.1(c).

35 In Re City of Joondalup; Ex parte Mullaloo Progress Association [2003] WASCA 293; (2003) 132 LGERA 243, Pullin J (with whom Parker and Miller JJ agreed) concluded at [46] that the factual reference in the introductory words of a clause of the town planning scheme there under consideration raised a jurisdictional fact. It was the requirement that retail net lettable area of a development must not exceed 500 square metres. That was considered by Pullin J to be a fact governing jurisdiction. His Honour relied upon what Ipp J had said in Chambers v Maclean Shire Council (2003) 57 NSWLR 152; at [48], namely, that the question about the existence of such a fact must be answered objectively and not by reference to the subjective opinion of the Council about whether the fact exists.

36 The question whether a fact is a jurisdictional one or not is perhaps most succinctly put by Gaudron J in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [60] in the following terms:

"Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or not exist."

37 Where a scheme does not contemplate that compliance with a particular criteria, is a matter to be determined by the subjective opinion of a Council, but by an objective answer to the question, a fact is likely to be a jurisdictional one. However, in this case, the decision of the Council was to be taken subjectively on the evidence before it and, in my view, it did not constitute a jurisdictional fact. The situation was analogous to that considered in the City of Cockburn v McNiece Industrial Systems Pty Ltd unreported; FCt SCt of WA; Library No 5523; 24 September 1984 where Burt CJ at 3 - 4 said:

"The appellant's case is essentially simple. By the scheme the use of the land sought to be developed for the establishment thereon of a 'noxious industry' is not permitted. The industry proposed to be established was a 'noxious industry' and the appellant Shire had no power to give its consent to the application. Hence its refusal to consent did not involve the exercise of a discretionary power and the Minister had no authority to entertain an appeal from that refusal. In my opinion that is correct.

...

The Shire may or many not have misunderstood the concept of 'noxious industry' as for the purposes of the scheme that expression is defined. If it did not, then its decision was correct and it was a decision which did not involve the exercise of any discretion and the appeal subsequently made by the Minister is not an appeal 'in respect of the exercise of a discretionary power' within the meaning of s 37 of the Act and no appeal lies to the Minister from it. If, on the other hand, the appellant Shire misunderstood the meaning of the expression 'noxious industry' so that upon the proper construction of that expression the application did not contemplate the use of the land for an industry so described and with the result that the application was one which ought to have been dealt with by the Shire in the exercise of a discretion given to it by the scheme, then the Shire has declined to exercise its discretion and the proper remedy would be mandamus compelling it to reconsider the application and to exercise its discretion controlled by relevant criteria with reference to it."

38 Reference might also be made to Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284, where Kennedy, Murray and Anderson JJ concluded that the question whether the use of a shop as a pharmacy was incidental to the use of the balance of the land in question as a health centre was a question of fact and degree for the relevant council and did not involve the exercise of a discretion. Anderson J at 296 said:

"The question whether the use for the purposes of a pharmacy was incidental to the use for the purposes of the medical complex, was simply a question of fact and degree. It was not a discretionary decision in any relevant sense. The determination whether or not a particular use is incidental to another use had to be made by the council in accordance with the objective facts. It was not a discretionary process in the sense that the council was at liberty to make a judgment that would create rights and duties. It is not to the point to say that opinions may differ on the question."

39 The minutes of the Council of the respondent for 23 June 2003 reveal that the Council considered a number of different ways of assessing the natural ground level of the land in question. The minutes outlined seven options for the measurement of the level, the seventh of which was the appellants' proposal. The Council resolved to determine that the natural ground level at the centre of the site was 33.6AHD for the purposes of cl 5.1.1 of TPS2, accepting a recommendation made to it by the relevant committee that, having regard to changes of site levels in the area over the years on both the development site and adjoining properties, the Water Authority maps from 1934 showed the most accurate representation of site levels before the land was developed.

40 Opinion evidence on the issue was given before the Tribunal, but, in my view, it is unnecessary to refer to it. The natural ground level was a fact to be determined by the Council. It was a question of fact about which minds might have differed. It was not, however, a jurisdictional fact. If the conclusion was erroneous, relief by way of proceedings other than appeal to the Tribunal may have been appropriate.

41 In my view, grounds 1, 2 and 3 should be dismissed.

42 It follows that, the grounds submitted by the appellants have not been made out, with the result that the appeal should be dismissed and the decision of the Tribunal confirmed.