On 13 April 2015 Judge Parry and Mr De Villiers of the State Administrative Tribunal (SAT) handed down their decision of Puma Energy Australia and City of Cockburn [2016] WASAT 36 (Puma).
This was a complex matter relating to the review of a development application for a petrol station and convenience goods store, on a site that had previously been used for a fast food restaurant in the Hamilton Hill Neighbourhood Centre. The City of Cockburn (the City) had initially refused an application by Puma Energy Australia (Puma Energy) to develop the store and Puma Energy later initiated proceedings in SAT for review of that decision pursuant to s 252(1) of the Planning and Development Act 2005 (WA).
The many issues that arose before SAT included the appropriate classification of the proposed land use under the local planning scheme, general amenity and local risk factors associated with being in close proximity to gas/fumes.
SAT ultimately approved the development as a “convenience store” with an incidental use for the retail sale of petrol and convenience goods.
Of particular interest is the fact that one of the other issues that was considered by SAT, was whether consent of the landowner of an adjoining property was required for the development approval.
In short the development proposal initially contemplated the use of an easement over a neighbouring land holding for the purpose of access/egress and deliveries. In simple terms, an easement gives a person a right of way over a parcel of land even though they are not the land owner. In this matter there was a reciprocal easement in the form of a right of carriageway with the neighbouring land which comprised of three commercial units, being two restaurants and a tattoo studio. The easement had been in place since 1983.
Puma Energy had originally proposed as part of the development that all servicing vehicles, such a petrol tankers and trucks would access the site via the carriageway easement. During the SAT proceedings, leave was granted for an alternative option to be considered where all tankers and other large and medium servicing vehicles would enter the site from the rear, and no longer make use of the carriageway. The City would still not approve the application with this variation. Puma Energy eventually elected to proceed seeking SAT approval on the basis of the alternative option, which ensured large and medium service vehicles would not access the store via the easement land.
When looking at this issue, SAT also considered whether the proposed development would be acceptable in relation to whether it would overly impact on the adjoining lot because of the easement. In this matter because Puma Energy had changed the route of service vehicles accessing the petrol station, and only a small number of non-service vehicle were likely to use the carriageway, SAT determined that the development would not have an unreasonable impact on the surrounding land.
SAT was also of the opinion that the development application was not incapable of approval if there was an absence of consent from the owner of the adjoining property, (consistent with the High Court decision of North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 (North Sydney)).
It was argued by the proprietor of the adjoining land that if the carriageway easement had been used by the larger service vehicles, it would effectively extend the “development” to the adjoining land lot. The proprietor argued that a development application under the applicable Town Planning Scheme could only occur when signed by the owner, which in this matter had not occurred, resulting in SAT lacking power to review the application.
SAT in applying the North Sydney case found this argument to be incorrect. The North Sydney case involved a proposed extension to a landlocked area which was reliant on two different easements with two different lots, of which only one owner supported the development. The other owner with the carriageway easement did not support the extension. When the Council did not approve the extension on that basis, the matter was taken to court and later appealed. The High Court of Australia unanimously found that the development application was not “incompetent” because of the absence of one owner’s consent. This is because a development application itself attaches to particular parcels of land, and consent of the adjoining land’s owners is not necessary. Only the consequence of more intense use of the easement was viewed as enough to impact on discretion to grant or refuse an application, and this itself was not a direct ground.
Of particular relevance to planning law in WA, the legislation that governed both this matter before SAT and the North Sydney case have similar terms describing what level of “connection” is needed for a development on land and an owner’s approval. The Puma case confirms that development could be limited to those parcels of land related to the land use. In the Puma case, because the easement was no longer required (even though it formed part of the application), the proposed land use could be limited to the title owned by Puma. It is noted however, that had the easement been retained as part of the application, consent from the neighbouring land owner would have been essential.
If you have any questions relating to the consequences of the SAT decision on your land or application for approval please do not hesitate to contact Craig Wallace.
