ANTONELLO and WESTERN AUSTRALIAN PLANNING COMMISSION - [2005] WASAT 212

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: ANTONELLO and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 212

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 20 MAY 2005

DELIVERED : 18 AUGUST 2005

FILE NO/S: RD 311 of 2004

BETWEEN: DARREN REMINGTON AND NATALIE SUE ANTONELLO
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision - Reticulated sewerage - Suitability of restrictive covenant - Hardship

Legislation:

State Administrative Tribunal Act 2004 (WA)

Town Planning and Development Act 1928 (WA), s 61(3)

Result:

Application for review dismissed
The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicants: Mr C Baker
Respondent: Ms A Christou

Solicitors:

Applicants: Chris Baker & Associates
Respondent: State Solicitor's Office

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

Bunbury Industrial Park Pty Ltd v State Planning Commission (unreported, Appeal No 12 of 1994, published 25 November 1994)
Keenan v City of Port Lincoln (1986) 61 LGRA 58
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants wished to subdivide their residential lot into two survey strata lots. The Western Australian Planning Commission refused the application for the reason that reticulated sewerage is not currently available to the proposed subdivided lots.
The applicant submitted that the impediment could be satisfied by entering into a restrictive covenant that no residential development would take place on the newly created lot until such time as reticulated sewerage was available.
The Western Australian Planning Commission objected to such a solution on the basis that reticulated sewerage was not planned for the proposed lot until 2008/2009 and there was no guarantee that reticulated sewerage would be provided at that time if at all and if subdivision was approved on the basis of such a condition, a lot incapable of development may well be created.
The applicant also raised the issue of hardship, however, this only becomes an issue if the Tribunal is of the opinion that having regard to hardship will not affect the application of sound planning principles.
The Tribunal decided that in the circumstances of the present case to allow the creation of a lot with such a restrictive covenant may well create a lot incapable of future residential development and such an outcome would not be consistent with orderly and proper planning.
Furthermore, to allow such a condition may well justify similar requests by other applicants waiting for the provision of services in the future and to establish such a precedent is not a desirable outcome.
The application for review was dismissed and the original decision affirmed.

Facts

This application for review relates to a refusal by the Western Australian Planning Commission (Commission) to grant subdivision approval to the applicants for the reasons contained in a letter dated 4 November 2004, which stated:
"1.Reticulated sewerage is not available in this area and the proposed lots are below the minimum size considered necessary by the Commission for the satisfactory operation of on-site effluent disposal systems.
2.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
The subject land is located at Lot 392, (10) Ashley Avenue, Quinns Rock. It is zoned "Residential" with a permitted site density of R20 under the City of Wanneroo District Planning Scheme No 2.
There is currently a single residence on the subject land, and the applicants propose to subdivide that lot to create two survey strata lots of 553.2 square metres and 627.8 square metres, with the current single residence being wholly contained on one survey strata lot and the other survey strata lot being vacant land.
The proposed lots will comply with the minimum lot area requirements for "Single Houses" under the R20 codes as contained in Table One of the Residential Density Codes 2002.
The sole impediment to subdivision is that reticulated sewerage is not currently available to the proposed subdivided lots, and under the 1995 Government Sewage Policy for the Perth Metropolitan Region, subdivision exceeding R5 in the outer metropolitan area, where this particular lot is located, is to be subject to the provision of reticulated sewerage.

Applicants' case

The applicants' first ground of appeal was based on hardship pursuant to s 61(3) of the Town Planning and Development Act 1928 (WA) (the Act).
Section 61(3) of the Act states:
"(3)In determining an application for a review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles."
The applicants' second ground of appeal stated:
"The nonavailability of reticulated sewerage to the proposed vacant Lot to be excised (the New Lot) does not, of itself, become an issue if a Restrictive Covenant prohibiting the residential or any development of the New Lot is registered on the Title of New Lot".
Ground three stated:
"The proposed terms of the Restrictive Covenant will prohibit any improvement of the New Lot until such time as sewerage is available to the said Lot."
The applicants' grounds also addressed such things as equitable mortgages and absolute caveats if it was felt that they were needed in addition to a restrictive covenant.
At the hearing on 20 May 2005, the applicants called two witnesses, namely, the firstnamed applicant, Darren Antonello, and Mr Raymond Belton, a planning and environmental consultant. A witness statement of Natalie Sue Antonello, the secondnamed applicant, was also submitted and accepted into evidence without objection. Mrs Antonello’s statement, in essence, confirmed who she was and that she had read her husband's statement and agreed with its contents.
Darren Antonello’s evidence related largely to the issue of hardship and, in essence, set out his financial position. In the course of crossexamination, he acknowledged that neither he nor his wife had applied for any Centrelink benefits, although they were both not working. His explanation for this was that, in his view, it was not appropriate for the applicants to live off Centrelink entitlements. Mr Antonello wished to obtain subdivision approval and sell the subdivided lot with the residence on it to pay debts, and retain the vacant block for the future. He also supported to the extent he could the evidence of Mr Belton in respect of blocks in the Old Quinns area which were described by Mr Belton as double development blocks.
Mr Raymond Beldon, of BeldonTaylforth Planning and Environmental Consultants, also gave evidence on behalf of the applicants. Mr Beldon was of the opinion that there was no practical reason why the proposed subdivision could not be created and a restrictive covenant entered into as proposed by the applicants. With the restrictive covenant, any development on the newlycreated vacant lot would be prohibited until such time as reticulated sewerage was available.
As an example of where a restrictive covenant had been used in the past, Mr Beldon produced a letter of approval to subdivision by the Western Australian Planning Commission relating to a decision dated 23 May 2000 in respect of land in the Shire of Boddington.
In that case, the restrictive covenant stated:
"This title is created with the condition that unless the Department of Minerals and Energy or its successor gives its prior consent in writing, there shall be no additional residential building, facility for overnight accommodation or other noisesensitive premises [as defined in the Environmental Protection (Noise) Regulations 1997 from time to time] constructed or placed on the land."
Mr Beldon’s evidence was that restrictive covenants were something that the respondent had, in the past, entertained, and there was no reason why it could not be done in the present case.
Mr Beldon also gave evidence that there were a number of lots situated in the area known as Old Quinns which appeared to be, as he described them, double development blocks. However, Mr Beldon was unable to give examples of where subdivision had been granted after the coming into operation of the Government Sewage Policy in 1995.
In his direct evidence, Mr Beldon also submitted that the restrictive covenant would not set an undesirable precedent for the future subdivision of other lots in the area.
Mr Beldon also stated that the proposed subdivision falls within the exceptions set out in par J.2.1. entitled "Small Infill" of the Development Control Policy SC1.1 - Subdivision of Land (June 2004).

Respondent’s case

The respondent called three witnesses, namely:
1.Mr Joe Algeri, an Officer of the Department of Planning and Infrastructure, currently acting in the position of Coordinator of Planning Appeals;
2.Mr Neil McGuinness, Manager of Wastewater Management with the Department of Health (the Department); and
3.Mr Mark Busher, Team Leader North, Subdivision Services, Land Development Branch of the Water Corporation (Water Corporation).
Mr Algeri, in his evidence, outlined the policies and legislation relevant to the matter. He explained that the respondent is responsible for determining subdivision applications and, in accordance with this responsibility, has prepared policies relating to subdivision which are consistent with sound planning principles and practice.
Among the policies referred to were:
(a)Statement of Planning Policy No 1 State Planning Framework Policy (Variation No 1)
Section A4 of this policy states:
"Planning should ensure that physical and community infrastructure by both public and private agencies is coordinated and provided in a way that is efficient, equitable, accessible and timely"
and this includes:
" … facilitating the efficient use of existing urban infrastructure and human services and preventing development in areas which are not well serviced, or services and facilities are difficult to provide economically in which creates unnecessary demands for infrastructure and human services … ".
(b)Government Sewage Policy Perth Metropolitan Region (1995) (Sewage Policy)
Mr Algeri explained that the Sewage Policy seeks to facilitate the orderly and flexible development of unsewered areas and to protect the capital investment in the government infill sewerage programme.
Mr Algeri explained that the Sewage Policy requires that new lots exceeding R5 in the outer metropolitan area, which includes Quinns Rock where the subject lot is located, are to be subject to the provision of reticulated sewerage. He also confirmed that there are exceptions set out in the policy but, in his view, this application did not come within any of those exceptions.
In particular, Mr Algeri did not agree with Mr Beldon's proposition that this application came within the exception of small infill subdivision. He submitted that the locality surrounding the subject land was already developed to a density consistent with R20.
(c)Development Control Policy DC1.1 - Subdivision of Land (June 2004)
Mr Algeri submitted that it was not appropriate to approve this application subject to a condition that any lot created would not be developed until some time in the future when it could be connected to reticulated sewerage for the reason that cl 3.5.2 of the Development Control Policy DC1.1 dated June 2004 provides that a lot, which cannot be developed in accordance with relevant statutory requirements, will not be approved.
In Mr Algeri's opinion, approving the proposed subdivision subject to a restrictive covenant for an indefinite period would be contrary to that policy, and, as the Water Corporation could not guarantee that reticulated sewerage would ever be provided to the subject lot, the proposed covenant may have the effect of creating a lot which could never be developed.
Mr Algeri argued that approving the applicants' application would set an undesirable precedent for the further subdivision of surrounding lots and lots throughout the metropolitan area.
Mr McGuinness from the Department confirmed that, on 1 November 2004, the Department had confirmed in writing to the respondent that the application did not meet the criteria under the Sewage Policy, and, therefore, the Department could not support it unless reticulated sewerage was available.
However, on 9 December 2004, when the Department's views were again sought and it was asked to reconsider its refusal, the request contained an offer, as he understood it, for the respondent to register a memorial on the title of the property prohibiting the construction of a dwelling on the land until such time as the land had been connected to reticulated sewerage.
Mr McGuinness confirmed that, in such circumstances, the Department would be prepared to support the proposal on the condition that the construction of a dwelling on the land would be prohibited until reticulated sewerage was available to the lot.
Mr Mark Busher from the Water Corporation confirmed that the Water Corporation had recommended that the application be refused, and even after it had been requested to reconsider the matter by letter dated 9 December 2004, it advised that its recommendation to refuse the application had not changed.
Mr Busher gave evidence that there is currently no reticulated sewerage available to the subject land, and that the nearest lots with reticulated sewerage are located approximately 300 metres away.
He explained that the sewerage infill programme is administered by the Water Corporation, and is dependent on funding from the State Government, and that it competes with other government initiatives to obtain the required funding.
Mr Busher explained that the Water Corporation could not actually confirm the commissioning of an infill area until the financial year in which the capital funds are approved.
He confirmed that, at present, the provision of reticulated sewerage to the Quinns area in which the subject lot is located is tentatively scheduled for the 2008/2009 financial year. However, the Water Corporation cannot confirm that reticulated sewerage will ever be provided to the subject land.
The respondent argued that such a proposal was not acceptable as it is contrary to orderly and proper planning and that the respondent did not wish to be a party to such a condition, and it would be inappropriate for a restrictive covenant to be imposed contrary to the will of the Commission, who may be one of the parties.
Furthermore, approval of the application would establish an undesirable precedent on the basis that where the Commission will not approve a subdivision it believes to be contrary to proper planning policy, that decision can be overcome by placing a restriction on the title indicating that no development will occur until such time as compliance can occur. This could extend to conditions requiring underground power, access by road or even reticulated water.
Approval of this application would establish a precedent that lots can be created that may never be capable of development.

Consideration

It was acknowledged by all parties that orderly and proper planning was an important concept, and that the Government’s Sewage Policy Perth Metropolitan Region (1995) was an important component of planning policy.
The central issue at the hearing was the applicants' proposition that the respondent's objections could be overcome by means of a condition on the subdivision approval which required a restrictive covenant to be placed on the title of the newly-created vacant lot which would, in effect, sterilise the new vacant lot from any residential development until reticulated sewerage was available to that lot.
The respondent, on the other hand, does not wish to be a party to such a covenant, and argues that such a condition would be contrary to orderly and proper planning.
The respondent submits that the Water Corporation, which is the body responsible for the Government infill sewerage program, states that the area where the subject lot is located is not due to undergo infill sewerage until the financial year 2008/2009, and that even then, it cannot guarantee reticulated sewerage will ever be provided to the subject lot.
The applicants planner, Mr Raymond Beldon, proposed that the fundamental assumption has to be that some time in the future, reticulated sewerage would come to the subject lot, but he was unable to be any more definite than that.
At best, therefore, with respect to when or, indeed, whether an infill sewerage program would proceed in the Old Quinns area, all parties could merely speculate.
In planning, the issue of conditions is regularly contentious and linking conditions to future events and, in particular, uncertain future events is something which has been considered by the former Town Planning Appeal Tribunal and the courts in the past.
In the case of Bunbury Industrial Park Pty Ltd v State Planning Commission (unreported, Appeal No 12 of 1994, published 25 November 1994), the question of whether a condition is temporally relevant was canvassed by the Tribunal.
"In this case, the condition as to sewerage would be invalid as being unrelated temporally to the project as it is in regard to the possibility of future re-subdivision that is not before the State Planning Commission. It may be that the State Planning Commission will not give approval to the subdivision or a super lot, the land could be sold as one entity or economic or other circumstances make subdivision of one or more lots impossible. The condition proposed is grounded, and only has meaning on the basis of the occurrence of a series of events that may not happen. As a result, it would be invalid and is not, therefore, capable of being imposed.
A similar concept is analysed in Keenan v City of Port Lincoln (1986) 61 LGRAQ 58 in reliance on the decision in Twenty Seven Properties Pty Ltd v District Council of Noarlunga (1975) 11 SASR 188; 32 LGRA 407. In that case a condition was related to the availability of a carpark not yet built. The decision determined; and this Tribunal accepts, that a condition cannot be linked to the future occurrence of an event."
In Keenan v City of Port Lincoln (1986) 61 LGRA 58, the Supreme Court of South Australia held that orderly planning should proceed on much more than speculation.
In that case, a condition was foreshadowed that would only run for so long as the road reserve were to remain available for parking purposes";
The court, in its reasons, stated:
"To anticipate that the road reserve may be required in the future for roadworks not now anticipated is merely speculation, and orderly planning should proceed and much more than speculation".
In the same case, the court stated that "the very essence of a "condition" is that one must be able to see the consequences for the proposed development if the "condition" upon which approval was granted is not complied with".
In the present case, if a restrictive covenant is placed on the title but, for whatever reason, infill sewerage is not provided to the locality or the subject site, what would have been created by this subdivision is a lot incapable of development. Mr Beldon, the applicants' expert planning witness, accepted in crossexamination that such an outcome would be "not good planning".
The only factual evidence as to the future of the sewerage infill programme came from Mr Busher who confirmed that, although tentatively planned for 2008/2009, the Water Corporation could not confirm that reticulated sewerage will ever be provided to the subject land.

It was accepted by the applicants that, for subdivision to proceed, reticulated sewerage was necessary, and this was the reason for the applicants' proposal of a restrictive covenant, which they confirmed would allow no residential development on the proposed vacant lot until such time as reticulated sewerage was provided.
To allow a condition of the nature proposed, therefore, would, in the Tribunal's view, allow the creation of a lot which may be incapable of future residential development. This is not consistent with orderly and proper planning.
Furthermore, to allow such a condition in this case may well justify similar requests by other applicants on other subdivision applications where the land in question is subdivisible but is waiting for the provision of services sometime in the future. Mr Bolton, the applicants' planner, conceded in crossexamination that, if approved, the applicants' proposal for a restrictive covenant would, in his opinion, establish a precedent. That in the Tribunal's view is not a desirable outcome.
Although the issue of the subject lot falling within the exception set out in par J.2.1 entitled "Small Infill" was canvassed, on the evidence presented, the Tribunal could not be satisfied that the proposed subdivision would fall within that exception. I found great difficulty in accepting Mr Beldon's proposition that a locality in the context of par J.2.1 could be as small as two individual lots or four divided lots.
In Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296, the Tribunal stated, in relation to the issue of locality (at page 15):
"The Tribunal prefers the definition given in Vickers v Director of Planning (1968) 16 LGRA 92, at p 25:
'The urban locality … is one to which the land, the subject of the appeal is related and of which it forms part.'
The concept of locality is flexible and is not confined by establishing a quadrilateral bounded by four streets. It requires a separate determination in each case to be able to ascribe the weight to be given to the evidence of experts or residents in relation to the area."
From the maps and photographs produced at the hearing, it is clear that the area known as Old Quinns can be described as a locality as indeed could a particularly defined part of Old Quinns.
However, to attempt to describe a locality as two individual lots or four divided lots in the Tribunal's view casts the locality too narrowly.

Hardship

Section 61(3) of the Act states that the Tribunal may have regard to claims of hardship raised by the applicants and proved to the satisfaction of the Tribunal, if the Tribunal is of the opinion that such regard will not affect the application of sound planning principles.
Therefore, to determine the matter by reference to hardship, it is necessary to demonstrate that this will not affect the application of sound planning principles.
In the circumstances of the present case, the Tribunal does not believe there are sound planning principles to allow the application for review. Indeed, it is of the view that sound planning principles dictate that the review should be dismissed. In the circumstances the question of hardship need not be decided.
However, for the sake of completeness, I will briefly comment on the issue.
The Tribunal accepts the evidence of Mr Antonello as to his financial predicament. However, it was puzzled at his refusal to accept Centrelink benefits, which he would appear to be clearly entitled to. Furthermore, although it was intimated that the applicants' may be in a better financial situation if they were allowed to subdivide the property, the Tribunal was not satisfied that this was proved to a satisfactory degree. For example, apart from some very general figures given by Mr Antonello, no detailed evidence was led as to what the applicants' situation would be if the land was sold in its current configuration, as against the outcome for the applicants if subdivision was allowed.

Conclusion

For the foregoing reasons, the Tribunal makes the following order:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER