KOKSHOORN and CITY OF MANDURAH

[2005] WASAT 251

KOKSHOORN and CITY OF MANDURAH [2005] WASAT 251

Last Update :28/09/2005

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 251
Published:
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:99/2004	Heard:	DETERMINED ON THE PAPERS
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	23/09/2005
No Pages:	12	Judgment Part:	1 of 1
Result:	Conclusion that discretion to approve arises under scheme
Category:	B

Parties & Catchwords


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : KOKSHOORN and CITY OF MANDURAH [2005] WASAT 251 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE PAPERS DELIVERED : 23 SEPTEMBER 2005 FILE NO/S : DR 99 of 2004 BETWEEN : ROBERT KOKSHOORN

Applicant

AND

CITY OF MANDURAH
Respondent

Catchwords:

Town planning ­ Preliminary issue ­ Whether power under town planning scheme to approve development ­ Construction of scheme

Legislation:

City of Mandurah Town Planning Scheme No 3
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Town Planning and Development Act 1928 (WA), s 66

(Page 2)

Result:

Conclusion that discretion to approve arises under scheme

Category: B

Representation:

Counsel:

Applicant : Mr PS Remta
Respondent : Mr C Slarke

Solicitors:

Applicant : PJA Remta
Respondent : McLeods

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

Robert Kokshoorn and City of Mandurah [2004] WATPAT 179

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of decision

1 The parties to this appeal have identified a preliminary issue that is capable of disposing of the application if decided in the respondent's favour. The issue is whether there is any discretion exercisable by the respondent, and thus by the Tribunal to approve the development the subject of the application. The City of Mandurah contends that, in the area of the applicant's development, there is no discretion under its town planning scheme to approve a development setback less than six metres from a canal waterway wall. It is common ground that the development the subject of the application is setback less than six metres from the canal wall.

2 The Tribunal reviewed relevant provision of the scheme and has concluded that, on a proper construction of cl 5.3.1 of the respondent's town planning scheme, there is a discretion to vary the relevant setback requirement, that being a development standard imposed under the scheme and not by the Residential Design Codes. Accordingly, the Tribunal determined that it is open to deal with the application for review on its merits.

Introduction

3 The applicant is the owner of Lt 63 Cambria Island Retreat, a property located on a canal development within the City of Mandurah. There is a house constructed on that land. The rear boundary of the land abuts a canal waterway.

4 Sometime prior to April 2003, a builder engaged by the applicant carried out additions to the property by extending and enclosing a balcony at the rear of the property. That addition was carried out without planning approval from the respondent. When the lack of approval was drawn to Mr Kokshoorn's attention, he applied for retrospective approval under the City of MandurahTown Planning Scheme No 3 (TPS 3).

5 On 5 March 2004, the application for approval was refused by the respondent for three reasons. The first of those was that "the proposed balcony does not comply with the setbacks for buildings or load bearing structures as required under table 11 – Canal zone of the City Of Mandurah Town Planning Scheme No 3". The other two grounds related to matters of amenity and orderly and proper planning.

(Page 4)

6 The applicant then brought an application to the Town Planning Appeal Tribunal. That appeal was heard by Ms Connor, a member of the Town Planning Appeal Tribunal, on 30 July 2004, and was dismissed on 6 October 2004 (see Robert Kokshoorn and City of Mandurah [2004] WATPAT 179). The applicant sought a review pursuant to s 66 of the Town Planning and Development Act 1928 (WA). The President of the Town Planning Appeal Tribunal concluded that the requirements of s 66 were satisfied in that the Tribunal member who initially dealt with the matter was not a legal practitioner, and her decision involved a question of law, namely whether procedural fairness had been extended to the applicant in the hearing. The President reviewed the matter, made an order setting aside the order of 6 October 2004 and adjourned the matter for further hearing before a different member of the Tribunal. The matter was not resolved by the Town Planning Appeal Tribunal prior to its abolition by the amendments to the Town Planning and Development Act contained in the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA). Pursuant to that legislation this Tribunal assumed the functions of the former Town Planning Appeal Tribunal.

7 When the matter came before this Tribunal, the respondent sought to argue a preliminary issue, namely:

"Is there any power under TPS 3 to vary the Development Standard for a single house in the Port Mandurah Stage 1 area of the Canal zone for a building set back from the canal waterway wall, where the 'Other Requirements' section of Table 11 relating to the Canal zones stipulates that 'no variance will be granted' to the minimum six metre setback."

8 The respondent's contention is that there is no discretion to vary the setback in respect to the building on the applicant's land, with the result that the development in respect of which the applicant seeks approval is incapable of being approved.

9 The parties agreed that this matter should be dealt with as a preliminary issue, and these reasons are directed solely to that issue.

Issue estoppel

10 The preliminary issue was argued before the Town Planning Appeal Tribunal at the initial hearing. The tribunal concluded that the provisions of the Scheme dealing with setbacks from the Canal in the area known as "Port Mandurah Stage 1" within the Canal zone was subject to a discretion

(Page 5)

under sub-clause 5.31 of TPS 3 to modify development standards and the respondent therefore had a discretion to vary.

11 When the matter came on for directions before this Tribunal on 1 February 2005, the applicant's counsel made submissions to the effect that the question of the existence of a discretion having been determined by Ms Connor as a member of the Town Planning Appeals Tribunal, that matter should not be further agitated. The applicant's position was that only factors going to the exercise of that discretion should be the subject of argument and determination in the Tribunal's hearing. I rejected that contention at that time and gave oral reasons for doing so. In essence, I took the view that the effect of the former President's review was that the whole matter was to be considered afresh by a different member of the Tribunal. There was no basis to conclude that the fresh consideration should be limited to only some aspects of the earlier decision.

12 In its written submissions in relation to the preliminary issue before this Tribunal, the applicant sought to reargue the contention that this Tribunal is estopped again from determining the issue already determined by the former Tribunal. The ruling having been given in respect to that matter on 1 February 2005 for reasons then given orally, it is not now appropriate to revisit that issue. That is not to say that I have completely ignored Ms Connor's reasons for the conclusion she drew. Although I have approached the issue on the basis of my own analysis of the submissions and materials provided to me, it has been helpful to review and consider the reasoning that led to Ms Connor's conclusion.

The planning framework

13 The applicant's property lies within the "Canal" zone of TPS 3. It is within the area of the Canal zone known as "Port Mandurah Stage 1". Part 4.1.1 of TPS 3 is concerned with the Canal zone. Clause 4.11.3 deals with specific provisions for the Canal zone. It contains the following sub-clauses:

"4.11.3.2 Residential Development
Residential development shall comply with the standards specified in Zoning Table 11 and otherwise with the standards specified in the Residential Planning Codes according to the density coding shown on the Scheme Maps, unless a variation is adopted by Council.

(Page 6)

Residential development shall also comply with provisions relating to the Residential Zone.
4.11.3 .3 Variation of Density Coding
Council may permit residential subdivision and development to a density higher than that specified on the Scheme Maps to a maximum of R40 where the development:

a) site has an area of 2,000 square metres or greater with a frontage of least 40 metres;

b) is connected to reticulated sewer;

c) complies with all the Scheme requirements and relevant policies of the Council; and

d) has been advertised for public comment in accordance with the procedure for 'SA' uses and no significant objections have been received during this period."

14 Table 11 of TPS 3 deals with the Canal zone. It expresses the policy that "The Canal zone is intended to provide for the development of Canal Estates that have a high standard of amenity and have minimal impacts upon the environmental qualities of the area". The Table contains development standards, set out in a series of columns. One is headed "Other Requirements". Although the Table is oddly constructed, it must be read on the basis that the "Other Requirements" are applicable to each of the uses set out subsequently in the Table. Paragraph 2 of the "Other Requirements" column reads:

"No building or load bearing structure shall be closer than 6m to any waterway wall.

Engineering certification will be required for any variance to the minimum 6m setback (except for Waterside and Port Mandurah Stage 1, where no variance will be granted) to a minimum of 4 metres, with an average of 6 metres."

15 The Table contains six other columns setting out development standards dealing with minimum lot areas, minimum effective frontage, maximum plot ratio, minimum boundary setbacks, minimum car parking
(Page 7)

and landscaping. In relation to those six columns, for dwellings, the Table specifies:
"As per Residential Planning Codes according to density shown on Scheme Maps or on an approved Outline Development Plan except where a boundary abuts and [sic] a waterway where the setback shall be a minimum of 4m with an average of 6m (see Other Requirements)".

16 Part V of the Scheme deals with general development requirements. Clause 5.1.3 provides that:

"Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes."

17 Clause 5.3 is headed "Discretion To Modify Development Standards". It reads relevantly:

"5.3.1Except for development in respect of which the Residential Planning Codes apply under this Scheme, if a development the subject of an application for planning approval does not comply with a standard prescribed by the Scheme with respect to minimum lot sizes, building height, setbacks, site coverage, car parking, landscaping and related matters, the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council thinks fit. The power conferred by this clause may only be exercised if the Council is satisfied that:
(a) approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;

(b) the non-compliance will not have any adverse effect upon the occupiers or users of the development or the inhabitants of the locality or upon the likely future development of the locality."

(Page 8)

Clause 4.11.3.2

18 The applicant contends that cl 4.11.3.2 provides a general power to vary Zoning Table 11. He relies on the presence of the words "unless a variation is adopted by Council" within that clause.

19 The respondent contends that the words "unless a variation is adopted by Council", relate only to "the density coding shown on the Scheme Maps", and do not qualify the earlier part of the sentence which prescribes that "Residential development shall comply with the standards specified in the Zoning Table 11". The respondent points to the fact that the very next sub-clause, cl 4.11.3.3 empowers the Council to permit residential development to a density higher than that specified on the Scheme Maps. It contends that the presence of that sub-clause creates a need for the words in cl 4.11.3.2 so that the two sub-clauses are consistent.

20 In my view, the words "unless a variation is adopted by Council" are a reference to any variation which might be adopted by Council, whether of the density coding shown on the Scheme Maps, or standards specified in Zoning Table 11. Table 11 specifically contemplates variation to minimum setbacks, at least in areas other than Waterside and Port Mandurah Stage 1 areas. The variation of that nature is an example of a potential variation adopted by Council as contemplated in cl 4.11.3.2. That does not mean, however, that cl 4.11.3.2 is itself a source of power for the Council to vary. The words in that clause are merely a reference to a variation which might be adopted by Council pursuant to some other provision of the Scheme. Powers of variation are found, for example, in cl 4.11.3.3, and cl 5.3.1. I do not accept therefore the applicant's contention that cl 4.11.3.2 is a source of power to vary.

Clause 5.3.1

21 The applicant also relies on cl 5.3.1. In doing so, he contends that the application of that clause is not excluded by the exception in the opening phrase of the clause. Initially, the applicant contended that there is presently no requirement in any operative codes which applies under TPS 3. That contention was based on the proposition that the Residential Planning Codes, which are referred to expressly in the Scheme, have now been replaced by the Residential Design Codes, of which no mention is made in the Scheme. Subsequently, in reply to the respondent's submissions, the applicant conceded that the Residential Planning Codes had been replaced by the Residential Design Codes gazettal on

(Page 9)

4 October 2002. The applicant maintained, however, that it is arguable that the Residential Design Codes may not automatically apply to TPS 3.

22 Clause 3 of Statement of Planning Policy No 1 Residential Design Codes provides that:

"3. References in a Town Planning Scheme to "Statement of Planning Policy No 1 Residential Planning Codes" shall be read as reference [sic] to this Statement of Planning Policy."

23 The applicant submitted that that provision related only to Town Planning Schemes prepared in accordance with the model scheme text provisions as published in the Government Gazette on 22 October 1999. There is no basis for reading down the words "a Town Planning Scheme" as being only a reference to Schemes published after 22 October 1999 using the model Scheme text provisions. The reference to the Residential Planning Codes in TPS 3 must now be read as a reference to the Residential Design Codes.

24 When this matter was argued before Ms Connor in the Town Planning Appeal Tribunal, she concluded that the discretion to modify development standards provided under cl 5.3.1 of TPS 3 was applicable to the setback requirement of six metres to any waterway wall within the Port Mandurah Stage 1 area, as prescribed in par 2 of the "Other Requirements" in Table 11. She reached that conclusion on the basis that the six metre requirement was properly construed as a development standard. She concluded:

"When considered in context with the whole of the Table, it would appear that the 'Other Requirements' provision is further defining the setback standards which are set out in the general development standards relating to boundaries abutting a waterway. In essence, all 'Other Requirement No 2' is establishing is that the setback requirement for Waterside and Port Mandurah Stage 1 is a minimum six metres from any waterway wall whereas in other canal estates, the minimum setback, providing engineering certification is four metres, with an average of six metres."

25 I agree with that characterisation of the setback requirement within the Port Mandurah Stage 1 area as contained in Table 11. The "Other Requirements" do not only apply to residential uses within the Canal zone. They are development standards which apply to all permitted or
(Page 10)

discretionary uses referred to in the Table. At least in respect to all uses other than dwellings, there is a clear inconsistency between the discretion to vary development standards found in cl 5.3.1 and the suggestion that "no variance will be granted" within Waterside and Port Mandurah Stage 1. That inconsistency is resolved if par 2 of the "Other Requirements" is construed in the manner adopted by Ms Connor in the passage set out above. It would have been simple to provide an exception in cl 5.3.1 so that the discretion conferred by that sub-clause was not to exist where otherwise provided in the Scheme. In the absence of any such exception, the conclusion that par 2 of the "Other Requirements" does no more than prescribe development standards, albeit somewhat inelegantly, is to be preferred.

26 The respondent contends that, even if the "Other Requirements" provision is merely a development standard, cl 5.3.1 has no application because this is a development "in respect of which the Residential Planning Codes apply under this Scheme". Thus, the respondent contends, the development standard prescribed in Table 11 cannot be varied under cl 5.3.1.

27 As I have previously concluded, the Residential Design Codes replace the Residential Planning Codes, and do apply to developments within the Canal zone. In my view, however, that does not prevent variation to a standard prescribed not by the Residential Design Codes, but by the Scheme. Clause 5.1.3 requires residential development dealt with by the Residential Design Codes to conform with the provisions of those codes. The Residential Design Codes do not prescribe inflexible development standards. Although acceptable development standards are identified, standards are prescribed by performance criteria which can be met other than by meeting the identified acceptable development standards. The Residential Design Codes contemplate a discretion on the part of an approving authority to be exercised against specific performance criteria.

28 That inherent discretion within the Residential Planning Codes explains the exception in the opening words of cl 5.3.1. It is entirely consistent with the application of the Codes to preserve the nature and extent of the discretion inherent in the Codes, and not, by a provision in a Town Planning Scheme, to provide some potentially inconsistent discretion in relation to development standards. Clause 5.3.1 is otherwise unqualified as to the extent to which the discretion applies to standards prescribed by the Scheme.

(Page 11)

29 In this case, the Codes apply to dwellings within the Canal zone. There are, however, additional development standards prescribed by the "Other Requirements" column of Table 11. In the context of the Scheme as a whole, my view is that the proper construction of cl 5.3.1 is that the words "except for development in respect of which the Residential Planning Codes apply under this Scheme" is a reference to the standards applicable to a development by reason of the Codes which are measured by performance criteria. Other standards, whether applying for residential development or any other development, that are prescribed not by the codes, but by the Scheme itself, are susceptible a discretion to vary under cl 5.3.1.

30 On that basis, it follows that the answer to the question posed by the preliminary issue is "yes".

Other approved developments

31 In his submissions in relation to the preliminary issue, the solicitor for Mr Kokshoorn submitted that certain other developments within the Port Mandurah Stage 1 area had been approved with setbacks less than six metres. That assertion was relied upon to contend either that the respondent considers it has the necessary power to vary the development standards contained in Table 11, or if it does not have that power, then it has acted wrongly and improperly in approving those buildings.

32 As the respondent submitted, those matters are irrelevant to the outcome of the preliminary issue. Had I concluded that the respondent had no discretion to vary the setback standard, the fact that it had wrongly done so in other cases would not create a power that could be relied upon by this applicant. That would be so whether or not the respondent considered that it had the power at the time that it gave the approvals in question. Similarly, the contention that the respondent has acted wrongly or improperly could not affect the proper construction of the Scheme.

33 I have therefore given no consideration or weight to the submissions on that point, nor to the affidavit of Mr Kokshoorn sworn 15 August 2005 dealing with that issue.

34 The construction of other developments within the vicinity the applicant's property may be relevant to the consideration of those matters affecting the exercise of a discretion to vary the setback requirements. They are matters to be dealt with when the merits of the application are dealt with in due course.

(Page 12)

Conclusion

35 The decision of the Tribunal on the preliminary issue is that there is power, under the City of Mandurah District Town Planning Scheme No 3, to vary the development standard for a single house in the Port Mandurah Stage 1 area of the Canal zone for a building setback from the Canal waterway wall.

36 Directions should now be given for the further conduct of the application.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE J CHANEY, DEPUTY PRESIDENT