Adams and Ors and Western Australian Planning Commission
[2007] WASAT 109
•16 MAY 2007
ADAMS & ORS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 109
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 109 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:461/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR B HUNT (SENIOR SESSIONAL MEMBER) | 16/05/07 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN ROBERT ADAMS LORRAINE JUNE ADAMS JUSTIN RAYMOND LIMBRICK KIM AMANDA LIMBRICK WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Subdivision City of Gosnells Draft Foothills Regional Study General rural zone Rural character Quarry buffer area |
Legislation: | City of Gosnells Town Planning Scheme No 6 Metropolitan Region Scheme Planning and Development Act 2005 (WA) |
Case References: | Longman and Anor v Western Australian Planning Commission [2004] WATPAT 68 Luzny & Anor and Western Australian Planning Commission [2006] WASAT 35 |
Orders | The application for review of the Western Australian Planning Commission’s decision to refuse subdivision of lot 12 Grant Street, Orange Grove is dismissed and therefore the decision of the Respondent is affirmed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ADAMS & ORS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 109 MEMBER : MR B HUNT (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 16 MAY 2007 FILE NO/S : DR 461 of 2006 BETWEEN : STEPHEN ROBERT ADAMS
- LORRAINE JUNE ADAMS
JUSTIN RAYMOND LIMBRICK
KIM AMANDA LIMBRICK
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Subdivision - City of Gosnells - Draft Foothills Regional Study - General rural zone - Rural character - Quarry buffer area
Legislation:
City of Gosnells Town Planning Scheme No 6
Metropolitan Region Scheme
(Page 2)
Planning and Development Act 2005 (WA)
Result:
Application for review is dismissed
Category: B
Representation:
Counsel:
Applicants : Mr SJ Bain (Acting as Agent)
Respondent : Mr JR Bouwhuis
Solicitors:
Applicants : SJB Town Planning & Urban Design (Town Planners)
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Longman and Anor v Western Australian Planning Commission [2004] WATPAT 68
Luzny & Anor and Western Australian Planning Commission [2006] WASAT 35
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal of a subdivision application by the Western Australian Planning Commission (respondent) of Lot 12 Grant Street, Orange Grove in the City of Gosnells. The subdivision application was refused on the grounds that the proposal was for lots of area less than 1.0 hectare which was inconsistent with orderly and proper planning as required by State and local policies for the area.
2 The applicants sought review of the respondent's decision on the grounds that the lot sizes were only a minor reduction in area and that planning policies should be applied flexibly and with consideration of the specific site and locality.
3 The State Administrative Tribunal (Tribunal) considered that the policies of the respondent had been consistently applied over time and were well founded. The only situation where lots of less than 1.0 hectare had been approved in this locality was where this reflected an established non-conforming situation of two houses.
4 The Tribunal was not satisfied that there was appropriate basis for variation and flexibility in the planning policies and were not persuaded that an undesirable precedent would not be set in relation to unplanned subdivision of similarity sized lots in the vicinity of Lot 12, if that lot was subdivided.
5 The application for review of the respondent's decision was accordingly dismissed and the decision of the respondent to refuse subdivision of Lot 12 Grant Street, Orange Grove is affirmed.
Introduction
6 This is an application for the review of a decision of the respondent to refuse the subdivision of Lot 12 Grant Street, Orange Grove into two lots of areas 9240 square metres and 10 539 square metres in a battleaxe configuration.
7 The application was originally for two lots side by side, each of 9800 square metres and with a street frontage of 36.82 metres.
(Page 4)
8 The applicants have lodged a revised plan with their witness statement, and the battleaxe lot arrangement is accepted by the respondent as the basis of this review.
9 The application for subdivision was received by the respondent on 12 September 2006 and referred for comment to the City of Gosnells (City), the Water Corporation, Western Power and the former Department of Environment.
The City recommended that the proposal be refused for the following reasons:
"(i) Lots below 1.0 hectare in area are not viewed as maintaining an outcome consistent with rural zoned land, being a size that is more of an urban nature and form.
(ii) A minimum lot size of 1.0 hectare as specified in the City of Gosnells draft Foothill Rural Strategy is seen to maintain the rural break to the adjacent urban area (west of Tonkin Highway), while allowing for some subdivision into smaller allotments subject to the consideration of sensitive land uses (quarries, poultry farms, service infrastructure etc), landscape amenity and rural character, lot and settlement pattern, land capability and site specific considerations (as may be applicable to individual proposals).
(iii) Lots less than 1.0 hectare are not conducive to maintaining the rural character and amenity provided by a non-urban (rural) break and will result in:
• More intensive housing development that will have the potential to adversely impact the rural amenity and landscape character;
• An incoherent settlement pattern and form;
• Attract non-rural land uses and create additional conflict with sensitive uses;
• Necessitate the provision of expensive unplanned service infrastructure and community service; and
• Facilitate environmental degradation from more intensive human activity.
(Page 5)
- (iv) The creation of lots less than 1.0 hectare represents a more intensive urban form of settlement that is not supported by the regional and local planning strategies and policies.
(v) Approval to the subdivision would create an undesirable precedent for similar lots to be subdivided in the manner proposed and would be contrary to the orderly and proper planning of the area.
(vi) The subject land is in close proximity to the Boral Quarry and within the 1 kilometre Quarry Buffer area. Approval would lead to the introduction of a sensitive land use (that is, a residence) leading to potential land use conflict."
10 The other referral agencies raised no objection, subject to conditions.
11 The respondent refused to approve the subdivision, and by letter dated 5 December 2006, advised that:
"1. The plan of subdivision is inconsistent with orderly and proper planning for the following reasons:
(a) It proposes the creation of a lot less than 1.0 hectare which will be contrary and inconsistent with the regional planning strategies and policies to secure an appropriate settlement pattern for the Orange Grove locality; and
(b) Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
2. As a consequence of the above, the plan of subdivision is inconsistent with:
(a) the Metropolitan Region Scheme;
(b) the City of Gosnells Town Planning Scheme No 6;
(c) the respondent's Foothills Structure Plan 1992;
(d) the City of Gosnells' Draft Foothills Rural Strategy (March 2004);
- (e) Development Control Policy 3.4 Subdivision of Rural Land (March 2002);
(f) Development Control Policy2.5 Special Residential Zones (June 1998); and
(g) Development Control Policy1.1 Subdivision of Land - General Principles (June 2004)".
12 On 17 December 2006 an application for review of the respondent's decision was lodged with the Tribunal.
The site and locality
13 While the majority of land holdings within the area comprise rural lifestyle activities there are a variety and mix of other rural related land uses such as a poultry farm, several nurseries, orchards, a winery, rural industrial uses, a primary school, caravan parks and a horse and pony club.
14 The lot size pattern in the locality varies from 0.4 hectare to 4 hectares with many lots of 1.8 hectares to 2.0 hectares. Lots to the immediate north are 1.9 hectares and to the south 0.94 hectare and 1.04 hectares.
15 The locality is serviced with scheme water, electricity and telephone services; however, it is not serviced by reticulated sewer.
16 The site rises by approximately 10 metres from the south-western corner along Grant Street to the opposite eastern corner. There are numerous trees, a dwelling and associated outbuildings.
17 There is a 60 metre wide Western Power easement diagonally crossing the lot.
18 An operational quarry abuts the subject land and is within the 1 kilometre buffer area. The respondent has advised that lots to the south-east of the subject land have a memorial on the Certificates of Title advising of the potential for nuisance from noise, dust and vibrations due to the operation of the quarry.
Planning framework
19 The land is zoned "Rural" in the Metropolitan Region Scheme (MRS) and "General Rural" in the City ofGosnells District Zoning SchemeNo 6 (DZS 6). TPS 6 provides no guidance on rural lot sizes.
(Page 7)
20 The City has adopted the City of Gosnells Draft Foothills Rural Strategy (March 2004) (draft FRS). The draft FRS proposes that the minimum lot size requirement of 1.0 hectare will be introduced onto the TPS 6 map for the area included in Rural Planning Precinct No 2 and No 3, as part of any future review of TPS 6.
21 The draft FRS places the subject land in "Rural Planning Precinct No 3 – Tonkin Highway East". This precinct comprises 331 existing lots and accommodates rural-residential, hobby farms, agricultural lots, rural industrial uses on a variety of lot sizes ranging from 0.4 hectare up to 5.0 hectares, with a prevailing settlement pattern of approximately 2.0 hectare lots. This precinct is serviced with scheme water, electricity and telephone; however, it is not serviced by reticulated sewer. The availability of scheme water in particular has facilitated the prescribed minimum lot size of 1.0 hectare within this precinct.
22 The draft FRS identifies that the intensification of land use and development in Rural Planning PrecinctNo 3 in the form of lots less than 1.0 hectares in area is contrary to the underlying objectives of the respondent's Foothills Structure Plan (1992) and the draft FRS, as it is not conducive to maintaining the rural character and amenity provided by a non-urban (rural) break. Lots of less than 1.0 hectare will result in:
"• more intensive housing development that will have the potential to adversely impact the rural amenity and landscape character;
• an incoherent settlement pattern and form;
• attract non-rural land uses, create additional conflict with sensitive uses;
• necessitate the provision of expensive unplanned service infrastructure and community service; and
• facilitate environmental degradation from ore intensive human activity."
23 The respondent's Policy DC 3.4 - Subdivision of Rural Land -cl 3.1states there is a presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or endorsed local rural strategy.
(Page 8)
24 The respondent's Policy DC 2.5 - Special Residential Zones - characterises lots between 2000 square metres and 1.0 hectare as a different form of land use referred to as "Special Residential". Clause 3.1.3 of Policy DC 2.5 states that special residential lots are considered to be essentially residential and are to be located adjacent to existing or planned residential areas.
25 The adjacent Boral quarry has been identified as a "Key Extraction Area" by the respondent as "an area of recognised regional resources providing for the long-term supply of basic raw materials". The respondent's current quarry buffer study seeks to define the nature and extent of impacts associated with the quarry operations, and it is intended that the findings will guide the planning response in respect of the preferred land use in areas in proximity to the quarry operation via the City of Gosnells "Foothills Rural Strategy" and possible modifications to the Commission's Basic Raw Materials Policy.
26 Clause 5.11.1 of TPS 6 requires Council to have regard to any potential conflict with existing uses in the locality.
The respondent's argument
27 The respondent's argument opposing the proposed subdivision centred substantially on the lot sizes being less than 1 hectare, a minimum area that had been consistently applied both prior to and since the City's adoption of the draft FRS.
28 Applications to subdivide land to the north-west of the subject land, Lot 10 and Lot 11 Reservoir Road, that would create similar sized lots that are less than 1 hectare, have not been supported by the City, and were refused by the respondent.
29 The respondent said that the one exception has been the approval of subdivision to the immediate south-east where recognition was given to the presence of two houses enjoying a non-conforming use right.
30 In his witness statement, Mr Jason Bouwhuis, a senior planning officer with the Department for Planning and Infrastructure, considered that this one exception caused by a distinguishable non-conforming use did not represent any precedent.
31 Mr Bouwhuis considered that the approval to subdivision of lots of less than 1.0 hectare would adversely impact on the rural amenity of the area and the landscape quality of the locality.
(Page 9)
32 Mr Bouwhuis was of the view that the Water Corporation calculations for the provision of services were related to the maintenance of the 1.0 hectare lot size, and that any intensification of subdivision would not only place strain on that service but also on-site effluent disposal and other community services. It is noted, however, that in this instance the Water Corporation had no objection.
33 Mr Bouwhuis also referred to other respondent policies Subdivision of Rural Land (DC 3.4), Statement of Planning PolicyNo 2.5 (SPP 2.5) and Statement of Planning PolicyNo 2.4 – Basic Raw Materials (SPP 2.4) to support his view that the subdivision of rural land in a manner not consistent with established policies and practice should not be supported.
The applicants' argument
34 The applicants' argument as presented by Mr Simon Bain, a qualified and experienced town planning consultant, is that the respondent, and thus the Tribunal, have unfettered powers to approve subdivisions and thus to consider applications on their merits.
35 Mr Bain suggested that policies should be applied flexibly and within context.
36 Mr Bain considers that the flexibility provided for in the respondent's policy the Residential Design Codesof Western Australia (2002) (the Codes) gives opportunity for a 5% variance to the minimum area, and that, in this circumstance, the lot areas comply.
37 It is further argued in Mr Bain's witness statement that there has been no adverse impact on the amenity of the area by the adjacent subdivision, and that the Tribunal should not be concerned with precedent matters.
38 The applicants argued that several matters, like careful siting of building and effluent disposal envelopes, retention of remnant bushland, extra tree planting, drainage management and the proposed use of "environmentally friendly" building materials, demonstrate how the proposal can be considered appropriate for the area.
Discussion
39 The respondent's argument relies heavily on the minimum lot size of 1.0 hectare which has been maintained in this locality in all but one determination over many years.
(Page 10)
40 The exception to the 1.0 hectare minimum is considered to not be a precedent due to its exceptional circumstances, where there was an established non conforming situation of two houses.
41 The 1.0 hectare minimum lot size is recommended by the draft FRS, and the Tribunal, in Luzny & Anor and Western Australian Planning Commission [2006] WASAT 35, found that the draft FRS must be accorded considerable weight as a planning tool of the local authority given its history of preparation, institutional and expert input, community consultation and expected imminent endorsement.
42 There are no planning instruments that characterise the general locality for special residential development or provide for the intensification of development below 1.0 hectare in area. Consequently, the subdivision proposal bears no relationship to the long-term planning strategies to retain the rural locality east of the Tonkin Highway reserve as a non urban (rural) break.
43 The land is within the nominated buffer area for the adjacent Boral quarry, and the adjacent subdivision has memorials on the titles to notify prospective purchasers of the potential for nuisance caused by dust, noise and vibration from the quarry. The Tribunal agrees with the respondent that the need for such a memorial identifies that such adverse impacts on the amenity may occur.
44 The Town Planning Appeal Tribunal has concluded (in Appeal 289 of 2003 Longman and Anor v Western Australian Planning Commission [2004] WATPAT 68 (refer WAPC Ref: 121331)) that there is no evidence regarding any impact of the quarry operations on or from rural-residential subdivision proposals in the proximity of the Boral quarry and required an appropriate memorial be imposed. It is also noted that the Commission, following the Tribunal's determination, has approved 1 ha subdivision (refer WAPC Ref: 118191) in the proximity of the quarry (also subject to the imposition of a memorial condition), where applications have otherwise been determined to be consistent with Commission policy and practice. The creation of lots less than 1.0 hectare represents a more intensive urban form of settlement that is not supported by the regional and local planning strategies and policies (including protecting the quarry operations from sensitive residential land use).
45 There are lots adjacent to the north-west and nearby that have recently sought subdivision and been refused that are of similar area to the subject land.
(Page 11)
46 The applicants argued that, in the circumstances, the policies of the planning agencies are able to be varied and should be considered with flexibility and varied to allow the subdivision to proceed. The Tribunal is, however, required to have regard to the planning framework and does not have unfettered powers to approve subdivision as referred to by the applicants.
47 The Tribunal is not persuaded that there is statutory backing for a variation as proposed by the applicants, and considers that the creation of lots that are more akin to rural-residential development in this area is inappropriate for the amenity of the area and the long term management of the quarry buffer and therefore the orderly and proper planning in the area.
48 In the circumstances, the Tribunal considers that the argument for maintaining lots of 1.0 hectare minimum in this locality is soundly based.
49 It follows that the application for review should be dismissed and the decision of the respondent to refuse subdivision should be affirmed.
Orders
1. The application for review of the Western Australian Planning Commission's decision to refuse subdivision of Lot 12 Grant Street, Orange Grove is dismissed and therefore the decision of the respondent is affirmed.
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR B HUNT, SENIOR SESSIONAL MEMBER
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