Addvalue & Anor and Western Australian Planning Commission - [2006] WASAT 22

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: ADDVALUE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 22

MEMBER: MR J ADDERLEY (SESSIONAL MEMBER)

HEARD: 14 DECEMBER 2005

DELIVERED : 3 FEBRUARY 2006

FILE NO/S: DR 548 of 2005

BETWEEN: JAMES ADDVALUE
JENIFER ADDVALUE
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision - Residential Design Codes - City of Melville - Community Planning Scheme No 5 - "[D]own coding" - Network City - Activity centres - Activity corridors

Legislation:

City of Melville Community Planning Scheme No 5, cl 5.1(c)
City of Melville Town Planning Scheme No 3
Draft Statement of Planning Policy 3: Urban Growth and Settlement
Network City Community Planning Strategy for Perth and Peel
Policy No DC 2.2 Residential Subdivision, cl 3.1.3, cl 3.2.1, cl 3.2.3
Regional Residential Density Guidelines for the Perth Metropolitan Area
Residential Design Codes of Western Australia 2002, cl 3.1.3
Town Planning and Development Act 1928 (WA), s 5AA, s 24(5), s 61(1)(a)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants: Ms K Dehring
Respondent: Ms C Ide

Solicitors:

Applicants: Kaeser Kroon Lawyers
Respondent: State Solicitor's Office

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Western Australian Planning Commission (WAPC) refused an application for subdivision of lot 270 Kishorn Road, Applecross, in the City of Melville for reasons relating to non‑compliance with the minimum and average lot size requirements of the Residential Design Codes of Western Australia 2002 (Codes).
The applicants sought a review of the Commission's decision and presented evidence that the subdivision ought to be allowed because there was a substantial presence of similar subdivision, and higher density development in the area and refusal of the applicants' proposal would therefore be discriminatory and inequitable. The applicants also argued that the subdivision ought to be allowed because it was consistent with State Government planning goals articulated in the Network City documents (Network City) (see further below) and draft Statement of Planning Policy 3: Urban Growth and Settlement which encourage higher densities of housing along transport corridors such as Canning Highway and activity centres such as Canning Bridge.
The respondent tendered evidence that confirmed the non‑compliance of the subdivision with town planning scheme and Code standards, and which exceeded the discretionary parameters prescribed by WAPC policy. The respondent explained the history of the varied residential densities in the area which resulted when the City of Melville introduced a new town planning scheme which "down coded" residential density in the area. The WAPC's subdivision decisions in the area since down coding have consistently reflected town planning scheme and Code standards. Departure from compliance with the Code standards as proposed by the application, was demonstrated by the respondent as likely to have wide ranging and substantial implications for subdivision in the area because of the incidence of similar lots in similar circumstances in the locality.
The respondent argued that Network City, whilst highly relevant to the future planning of the area, still needed to be translated into formal policy, strategy and statutory instruments in order to be utilised as a mechanism for subdivision and development control.
The Tribunal expressed disquiet, based on the evidence before it, that an uneven distribution of residential development densities in the area and a resultant inconsistent distribution of built bulk and form seem to have led to an unsatisfactory and potentially inequitable outcome to development of street blocks in the locality.
However, the arguments by the applicants were not sufficiently persuasive to convince the Tribunal that the circumstances of subdividing lot 270 were uniquely meritorious or reasonably confined in terms of precedence to allow approval without serious consequence to future management of residential subdivision in the wider area.
The Tribunal expressed the view that the appropriate planning authorities should give early attention to addressing the residential planning anomalies in the area discussed in the report.
For the reasons set out above, and more fully in the report, the Tribunal accepted the arguments of the respondent and dismissed the application for review of the WAPC's decision to refuse subdivision of lot 270 Kishorn Road, Applecross.

Introduction

This is an application for the review of the decision of the Western Australian Planning Commission (WAPC) to refuse subdivision of lot 270 Kishorn Road, Applecross, in the City of Melville.
The application for subdivision was submitted to the WAPC by Mr and Mrs Addvalue on 11 January 2005, and the WAPC's decision of refusal and the reasons therefore were delivered by notice, dated 12 April 2005.
Following a request by the applicants to the WAPC for a reconsideration of the proposed subdivision, and following further consideration of additional information provided in support of the proposal, the WAPC by letter dated 27 July 2005, reiterated its decision of refusal previously communicated on 12 April 2005.
On 24 August 2005, an application for review of the WAPC's decision was applied for to the State Administrative Tribunal.

The proposal

Lot 270 Kishorn Road, Applecross is located in a well established residential area on a promontory of land bounded to the south by the Canning Highway and to the east, north and west by the river shoreline at the confluence of the Canning and Swan Rivers. Although featured by nodes of higher residential densities, particularly in association with the Canning Bridge Centre to the east and along the highway environs to the south, the prevailing City of Melville Community Planning Scheme No 5 (CPS 5) indicates the substantial core of the residential area, including the subject lot 270, as a "Living Area Precinct" zone with a residential density code classification of R15.
Lot 270 is located on the northern frontage of a triangular shaped street block bounded on the north by Kishorn Road, the south‑west by Ullapool Road and the south‑east by Macrae Road. Some of the lots in this block are awkward and angular in shape. There are other angular street blocks in the wider area but for the most part, blocks are regular in shape and lots are generally rectangular.
Lot 270 is presently occupied by the applicants' single storey brick and tile dwelling. Substantial two storey dwellings front the street either side of lot 270.
Lot 270 is 1012 square metres in area, of rectangular shape and with a frontage of 20.12 metres and a depth of 50.29 metres.
It is proposed to subdivide the land into two equal, rectangular lots of 506 square metres, each with a frontage of 10.06 metres to Kishorn Road. The existing dwelling will be demolished.

Town planning scheme and policy provisions

Lot 270 Kishorn Road, Applecross, is situated in a "Living Area Precinct" zone described as "Applecross A1" and accorded a residential density code of R15 under CPS 5.
The Residential Design Codes of Western Australia 2002 (formerly the Residential Planning Codes 1991) (Codes) are adopted by CPS 5 at cl 5.1(c) of the Scheme which 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."
Under the Town Planning and Development Act 1928 (WA) (TPD Act), the subdivision of land into lots is the responsibility of the WAPC. In order to guide residential subdivision, the WAPC has adopted Policy No DC 2.2 Residential Subdivision (DC 2.2), which sets out matters to be taken into account in the course of determination of an application for subdivision.
At cl 3.1.3, DC 2.2 provides, amongst other things, that new residential lots shall be:
"Capable of development in accordance with the Codes assigned to it by local town planning schemes, together with any local variations that may apply."
There are no local variations applicable to the Applecross A1 Precinct under CPS 5 that are inconsistent with the Codes.
At cl 3.2.1, DC 2.2 provides:
"Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land."
At cl 3.2.3, the DC 2.2 provides the WAPC latitude to allow variation of the minimum and average lot size requirements of the Codes where:
•the minimum lot size variation only applies to one lot in the subdivision;
•the variation reduces the area of that one lot by no more than 5% of the minimum area specified in Table 1 or elsewhere in the Codes;
•the variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the Codes; and
•the variation has been demonstrated by the applicants to have a particular beneficial outcome for the community, or the WAPC forms the opinion that it will have a particular beneficial outcome for the community.
The Codes prescribe at Table 1, that the minimum lot size for subdivision of a lot coded R15 is 580 square metres and the average lot size should be 666 square metres.
Statement of Planning Policy 3: Urban Growth and Settlement (draft SPP 3) has been drafted and was published in April 2005 by the WAPC in anticipation of adoption under s 5AA of the TPD Act. Draft SPP 3, amongst other measures, signals that one of the key requirements for sustainable communities is:
"supporting higher residential densities in and around town and neighbourhood centres, high frequency public transport nodes and interchanges ..."
Further, draft SPP 3 suggests that metropolitan growth should be planned for by:
•consolidating residential development in existing areas and directing urban expansion into the designated growth areas which are or will be well serviced by employment and public transport;
•giving priority to infill development in established urban areas, particularly through urban regeneration and intensification of development of under utilised urban land, whilst respecting neighbourhood character;
•locating higher residential densities in locations accessible to transport and services, such as in and around the CBD, regional and district centres, activity corridors and higher education campuses, and in selected areas of high amenity on the coast and river foreshores.
Draft SPP 3 anticipates that:
"Implementation of this policy will be through related statements of planning policy, regional strategies, local planning strategies and regional and local planning schemes. Implementation will also occur through the day‑to‑day process of decision making on rezoning, structure plans, subdivisions and development applications, and the actions of other State agencies in carrying out their responsibilities."
The Network City Community Planning Strategy for Perth and Peel, September 2004 (Network City) is a strategy for managing urban growth which is endorsed in principle by the State Government and the WAPC.
Network City seeks to:
•Plan with communities.
•Nurture the environment.
•Make fuller use of urban land.
•Encourage public over private transport.
•Strengthen local sense of place.
•Deliver strategies which deliver local jobs.
•Provide affordable housing.
The Network City Framework Plan identifies key features of the city that will be focussed upon in order to deliver Network City strategies. These are:
•Activity Centres which are locations where activities are encouraged such as employment, retail, living, entertainment, higher education and specialised medical services.
•Activity Corridors which are connections between activity centres that provide excellent, high frequency public transport and have a variety of land uses that support public transport.
•Transport Corridors which provide routes for higher speed through traffic including express bus services.
Network City will be implemented by a whole of government strategy including partnerships with local government with shared objectives and a clear understanding of roles and responsibilities.

The refusal by the WAPC

The WAPC refused the application for subdivision of lot 270 Kishorn Road, Applecross, for the following reasons:
"1.The Commission is not prepared to approve the subdivision as the resultant lot sizes would be below the minimum indicated by the Local Government's Town Planning Scheme.
2.Approval to the subdivision would set an undesirable precedent for further subdivision of surrounding lots."
The WAPC further advised the applicants:
"1.With regard to Reason 1 above, the R15 residential density coding of the land requires a minimum lot size of 580 m2 and the average lot size of 666 m2 for a single house lot subdivision.
2.The examples of subdivision approval provided as part of the application are noted. These approvals relate to land coded R17.5 under the previous City of Melville Town Planning Scheme No. 3. The subdivisions satisfied the site area requirements that applied at the time of approval".
The WAPC decision was reiterated after reconsideration at the request of the applicants.

The respondent's argument

The respondent's argument relies substantially on the inconsistencies of the application with the provisions and requirements of CPS 5, DC 2.2 and the Codes.
The proposed subdivision will result in a minimum lot size of 506 square metres where the required minimum lot size should be 580 square metres in accordance with the R15 Code provisions. The variation below the required standard calculates as 12.75% when the relevant provision of the WAPC Policy DC 2.2 (Cl 3.2.3) limits the maximum variation to 5%.
The subdivision will result in an average size over the two lots of 506 square metres where the required average lot size should be 666 square metres. The variation below the required standard calculates as 24.02% when the maximum variation should be 5% in accordance with cl 3.2.3 of DC 2.2.
The scale of the variation from the standard requirements for lot size are substantial and equate to the land being recoded R20 which is a significant departure from the prevailing coding of R15 under CPS 5.
The City of Melville, upon consultation in relation to the subdivision proposal, recommended that the subdivision should be refused because of non‑compliance with provisions of the Codes.
The respondent acknowledged that the street block bounded by Kishorn, Macrae and Ullapool Roads is predominantly developed at a density of R25 and above. Witness for the respondent, Mr Shau Chong, a planning officer of the Department of Planning and Infrastructure tendered evidence at attachment 9 to his witness statement, which illustrated that of 19 lots contained in the street block, only six remained developed at a density equivalent to R15. In relation to this circumstance the respondent is of the view that there is some justification for recoding of the street block to a higher density by way of an amendment to CPS 5 or as part of a scheme review.
A review of CPS 5 is understood to have been commenced by the City of Melville, which should involve a community consultation programme in early 2006. A new planning scheme resultant from the scheme review will have regard to the WAPC's planning framework, including Network City.
Mr Shau Chong's evidence, at attachment 13 to his witness statement, presented a map identifying eight R15 coded street blocks in proximity to lot 270 which illustrated properties which would have potential for subdivision if a precedent was applied consistent with the minimum and average lot size proposed for the subdivision of lot 270. Some 40 to 45 lots are so affected. Mr Shau Chong argued that the precedent was of such significance that it is possible the density standard allocated to the A1 Precinct would be compromised by ad hoc intensification of residential development and that the urban fabric would be progressively changed without regard to orderly and proper planning and with potentially uncertain consequence.
Mr Shau Chong provided evidence of a history of subdivision decisions in the locality by the respondent, which demonstrated that all decisions were consistent with the Codes requirements for lot areas in relation to the town planning scheme prevailing at the time.
Reference was made by Mr Shau Chong to Network City. The document has relevance to the subject land in respect of several of the statements of principle and particularly in relation to the position of lot 270 within 400 metres of Canning Highway which is identified as an "activity corridor" where opportunities for more housing should be encouraged. Mr Shau Chong offered the firm opinion that implementation of Network City objectives should be by way of translation into formal policy and statutory planning controls. Network City should not override existing town planning schemes, the Codes and the WAPC's subdivision policies.
Mr Shau Chong also referred to the draft SPP 3 which reflects some of the aspirations of Network City at a state level. The process of adopting draft SPP 3 as a policy under s 5AA of the TPD Act illustrates, in part, the systematic translation of statements of principle into formally adopted policy. Ultimately, in accordance with cl 6 of draft SPP 3, implementation of the policy will be effected through statements of planning policy, regional strategies, local planning strategies and regional and local planning schemes.
On the question of streetscape amenity, Mr Shau Chong was of the view that the proposed subdivision would have little impact. The resultant building bulk would likely be similar regardless of whether a new, larger dwelling was constructed on the existing lot or two new dwellings were established side by side on lots resultant from subdivision.
The respondent's argument concludes that there is no proper basis to depart from policy and that its decision to refuse the application for subdivision of lot 270 was reasonable and appropriate.

Applicants' argument

The applicants' argument in support of the proposed subdivision is largely based on the circumstance that the triangular street block, within which lot 270 is located, is already extensively subdivided and developed at a density mostly higher than the R15 code. Only four lots remain in the block that are practically capable of subdivision based on any precedent that might be set by subdivision of lot 270.
Mr Addvalue, the applicants' witness, referred to plans at page 106 and page 107 of the Section 24 Bundle submitted to the Tribunal. The plans, which were prepared by Mr Addvalue, illustrated the high level of subdivision and development present in the area, inclusive of the triangular block where lot 270 is located, as well as three street blocks immediately to the north and one to the west of the triangular block. Mr Addvalue concluded that given the extensive subdivision that has already taken place as identified on the plans, he did not understand how subdivision of lot 270 could create an undesirable precedent.
Mr Addvalue referred to the document Regional Residential Density Guidelines for the Perth Metropolitan Area, noting the reference that "local housing strategies should, ideally, look ahead to 2021, and contemplate zoning and coding provisions aimed at meeting the progressive needs for at least as far ahead as the next town planning scheme review". Mr Addvalue also referred to Network City which, in his opinion, made clear that the area around lot 270 is just the type of area the State Government has targeted for increased density.

Mr Addvalue provided advice to the Tribunal as to the history of CPS 5 which superseded the City of Melville's TPS 3. Under TPS 3, lot 270 was apparently capable of subdivision under the prevailing R17.5 coding. Mr Addvalue was very critical of the Council's consultative processes in the preparation of CPS 5, and aggrieved at the outcome whereby the residential density of the area was reduced from R17.5 to R15 when CPS 5 was gazetted in December 1999. The Minister for Planning had noted the controversy in relation to "down zoning" and recommended the areas affected should be reviewed after gazettal of the scheme.
Mr Addvalue gave evidence as to limited financial capacity for he and his wife to maintain the property. Advancing age was a concern and the apparent lack of progress of any scheme review meant that time was running out for realisation of their plans for subdivision.
Professor Newman, Professor of City Policy at Murdoch University and Chair of the WA Sustainability Round Table, gave evidence on behalf of the applicants as to the relevance of Network City and draft SPP 3 in relation to subdivision of lot 270 Kishorn Road.
Professor Newman indicated that Network City promoted high density residential and commercial development within 1 kilometre walking distance radius of major transport nodes, each with a railway station and bus services. This model of urban development has been adopted in the draft SPP 3.
Lot 270 is located close to Canning Bridge which is identified as a major transport node. A train station is being built at Canning Bridge and bus services travel to Perth via Canning Highway and Kwinana Freeway. The Canning Bridge centre is featured by a commercial precinct and residential densities, ranging from R25/40 to R150 within a short walk to the bridge.
Professor Newman noted that the City of Melville apparently perceived the Canning Bridge area as a transport node, and that high density residential and commercial development in the area and redevelopment in the vicinity of the applicants' land reflected that recognition. The Council appears to have stopped redevelopment on the applicants' doorstep.
Professor Newman was of the firm view that the present density coding applicable to lot 270 was anomalous and represented a wasted resource if development potential of the land was to be limited to only one dwelling. In the circumstances where State Government intent is clearly articulated and contradicts local planning scheme and policy requirements, then the State's interests on behalf of the wider community should prevail.
Professor Newman also expressed the view that the present streetscape of Kishorn Road was strange and inconsistent in character because the house on lot 270 was surrounded by more intensive redevelopment.

Analysis

As Professor Newman mentioned in his evidence, this matter brings into focus the "tension" between strategic and statutory planning.
The respondent's argument is founded on the notion of orderly and proper planning as conducted by compliance with the formally adopted and precise requirements of CPS 5, the Codes and DC 2.2. In this regard, it has been demonstrated that the proposed subdivision of lot 270 is clearly non‑compliant with the minimum and average lot size requirements and associated discretions of the prevailing R15 density code.
The applicants have not sought to challenge the question of compliance, but has rather, called into question the reasonability of the prevailing density code and the credibility of the consultative process conducted by the City of Melville in the preparation of CPS 5. As to this latter question, the Tribunal makes it clear that it is neither the proper forum for such a debate, nor is there in any way sufficient evidence before the Tribunal to adjudicate on the processes leading to the making of CPS 5.
As to the reasonability and appropriateness of the prevailing density code, the applicants have presented evidence that there is a significant incidence of development at higher density both in the immediate street block and in surrounding street blocks. The respondent has confirmed this circumstance, but indicated that it comes about because of the history of the area under a previous town planning scheme that lawfully allowed those higher density developments.
The Tribunal acknowledges the historical circumstance but expresses disquiet at the resultant lack of harmony in the distribution of density development in the area.
The varied application of development density standards over time in the street block containing the subject lot 270 has generated a fragmented, uncoordinated built form. As conveyed by the applicants, it has created conditions of inequity.
The Tribunal sympathises with the applicants' argument to the degree that the present application of the R15 code may well be inappropriate in order to afford a harmonious, efficient and equitable use of the land for housing.
Both the applicants and the respondent offered evidence to the Tribunal that the circumstances pertaining to the street block containing lot 270 also applied to a substantial degree to the other street blocks north and west. Each block features a mix of higher density development approved under the auspices of the previous town planning scheme along with lots presently compliant with CPS 5 R15 code development standards. For this reason the Tribunal is reluctant to conclude that the street block containing lot 270 is unique in its character and anomalies, and that any argument of precedent occasioned by approving the proposed subdivision might be confined to that street block.
It is apparent to the Tribunal that the issue of precedent would be applied to a wider environment.
The respondent tendered evidence that in the event of approval of the proposed subdivision, a precedent could flow to a substantial number of properties in the A1 Precinct that would have similar subdivisional potential to lot 270. The respondent identified more than 40 such properties in the street blocks around lot 270. The applicants' witnesses argued on the one hand, that the area was so compromised by the presence of subdivision and higher densities that the incidence of precedence was already pervasive. On the other hand, it was argued that the extent of precedence should be limited by the scope of the 1 kilometre radius zone of influence of the Canning Bridge major transport node as identified by the Network City Framework Plan.
The applicants' argument that Network City aspirations should influence the decision making process in this matter was countered by the respondent's view that the proper translation of Network City principles into planning decisions, should be by way of adoption into policies and statutory planning instruments.
The Tribunal accepts the respondent's argument which is affirmed by the process of incorporating Network City principles into draft SPP 3, and which further refers to an orderly implementation process via policies and planning instruments.
To otherwise contemplate the application of Network City principles to this particular application, brings into consideration questions of detail that were canvassed in examination of the witnesses. There was, for example, some doubt as to the geographic extent of the 1 kilometre walking distance from the Canning Bridge station and whether lot 270 was within that radius. There was speculation whether there should be a high density within the 1 kilometre radius as stated by Professor Newman in his original evidence, or a lower density at the periphery as stated during examination. The Tribunal would be confronted with a lack of certainty in detailed planning for the area, which could render any immediate decision to allow subdivision to not only generate a possibly wide ranging precedent in the A1 Precinct, but also to compromise what may ultimately be the desired development density in and around Canning Bridge.

Conclusion

This matter is influenced by a historical circumstance that has resulted in a land use development condition on the street blocks in and around lot 270 Kishorn Road that is unsatisfactory in terms of development density consistency, built form coherency and ultimately the equity of opportunity of landowners. The Tribunal reiterates the views of the WAPC, in its letter to the applicants of 27 July 2005, that the City of Melville should address the planning issues of the immediate locality by scheme amendment or scheme review. It is the Tribunal's opinion that recoding the area, by way of an amendment to CPS 5, in a manner more consistent with the predominating higher densities of the area and designed to reflect the future housing needs of the area as identified in relevant State and regional policy instruments, would serve to resolve the inequities of land development apparent in this area.
The Tribunal is otherwise concerned that the issues of undesirable precedence raised by the respondent are real risks to the orderly and proper administration of planning in the locality for the reasons set out in the analysis preceding.
The Tribunal acknowledges the evidence of the applicants in relation to Network City, but is firmly of the view that where statements of principle are to be applied at the "micro" level, they must be translated into meaningful contextual detail by means of appropriate processes of regional and local planning.
For these reasons, and those reasons amplified in the analysis section of this report, the application for review of the WAPC's decision to refuse the subdivision of lot 270 Kishorn Road, Applecross, is dismissed.

Orders

1.The application for review of the WAPC's decision to refuse the application for subdivision of lot 270 Kishorn Road, Applecross in the City of Melville is dismissed.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SESSIONAL MEMBER

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Citations

Addvalue & Anor and Western Australian Planning Commission [2006] WASAT 22

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