AVODA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2017] WASAT 110
•17 AUGUST 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AVODA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 110
MEMBER: MS L EDDY (MEMBER)
HEARD: 20 APRIL 2017
DELIVERED : 17 AUGUST 2017
FILE NO/S: DR 367 of 2016
BETWEEN: AVODA PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision application - Surveystrata subdivision - Communal access roads - Sufficiency of proposed internal access roads - Whether any means of ensuring that one of the specified points of access to the site is only available on a temporary basis - Consistency of proposed subdivision with structure plan - Consistency of proposed subdivision with policies - Turns on own facts
Legislation:
Metropolitan Redevelopment Authority Act 2011 (WA), s 51, s 145
Armadale Redevelopment Act 2001 (WA)
Armadale Redevelopment Scheme 2004, cl 1.7, cl 5.2, cl 5.2(2), cl 5.4, cl 6.1, cl 7.1, cl 7.3, cl 7.4, Appendix 1, Appendix 4
Metropolitan Redevelopment Authority Regulations 2011 (WA), reg 10
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 135, s 136, s 138(2), s 142, s 183(3), s 241(1), s 251(1), Pt 14
Planning and Development Regulations 2009 (WA), reg 21
State Planning Policy 3.1 - Residential Design Codes, cl 5.2.2, cl 5.3.5,
Strata Titles Act 1985 (WA), s 5D, s 5F, s 6
Strata Titles General Regulations 1996 (WA), reg 14AResult:
Application dismissed
Decision of respondent to refuse the proposed subdivision confirmed
Summary of Tribunal's decision:
The applicant sought approval to subdivide land in Seville Grove into 31 surveystrata lots and some common property to be used for the purpose of providing communal internal access ways. The respondent refused to approve the proposed subdivision on the basis that the proposal was inconsistent with the applicable structure plan for the area and also with a number of the respondent's policies in relation to subdivision. On the evidence before it, the Tribunal determined that the proposed subdivision was inconsistent with the structure plan and a number of relevant policies. The Tribunal determined that the departure from the structure plan proposed would result in a lower level of amenity for the proposed lot owners than contemplated in the structure plan. The Tribunal was not able to identify a reason to depart from the relevant policies in the circumstances. The Tribunal determined that proposed subdivision should not be approved.
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: Mr I Repper
Solicitors:
Applicant: Walter Makoni
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Bormolini and Western Australian Planning Commission [2014] WASAT 121
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1On 13 June 2016, Avoda Pty Ltd (applicant) sought approval from the Western Australian Planning Commission (respondent or WAPC) to subdivide Lot 801 Gillam Drive, Seville Grove (site) into 35 survey-strata lots and some communal access roads (internal roads). A revised proposal to subdivide the site into 31 survey-strata lots and some internal roads was submitted to the respondent in September 2016 (proposed subdivision).
2On 8 November 2016, the respondent refused the proposed subdivision application. The reasons given for that refusal were:
1.The application is not compliant with the Champion Drive Precinct Local Structure Plan as it:
(a)proposes a new, unplanned vehicle access onto Gillam Drive, and
(b)does not provide for Predominately Single Housing adjacent to the intended/future Radley Street extension.
2.The application conflicts with Clause 5.2 of the Armadale Redevelopment Scheme by virtue of being noncompliant with the Residential Design Codes.
3.The application is inconsistent with State Planning Policy 3.1 Residential Design Codes is as it does not comply with the following elements:
(a)Part 5.3.3 (C3.2) Visitor Parking: eight parking bays are not provided on site for the strata/grouped dwelling development,
(b)Part 5.3.5 (C5.7) Communal Street: the development does not depict 12 metre wide access ways for the proposed 31 lot development,
(c)Part 5.4.5 (C5.2) Waste Services: street collection, bin store or internal collections is not provided and/or adequate.
4.The proposed subdivision is inconsistent with the principles of orderly and proper planning.
3On 23 November 2016, the applicant lodged an application with the Tribunal pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision.
Agreed facts
4The respondent identified a number of relevant facts in its Statement of Issues Facts and Contentions that were accepted as correct by the applicant. The following is taken from those agreed facts and from the plan of the proposed subdivision.
5The site is vacant land that is rectangular in shape and 9,966m² in area. Champion Drive is adjacent to the northeast boundary of the site and Gillam Drive is adjacent to the southeast boundary. The land immediately to the southwest and northwest of the site is largely vacant.
6Green title and surveystrata subdivision has occurred in the vicinity further to the south and west of the site, as contemplated in the Champion Drive Precinct Local Structure Plan (CDP Structure Plan).
7The site is located within the Armadale Redevelopment Area as defined in reg 10 of the Metropolitan Redevelopment Authority Regulations 2011 (WA).
8The proposed lots are arranged so that 17 of the proposed lots are located along the southeast, southwest and northeast boundaries of the site, facing the internal roads. The remaining lots back onto to each other in an 'island' configuration inside the internal roads, all facing the internal roads. Proposed Lots 1, 2 and 3A are located on the southwest boundary that abuts the Gillam Drive road reserve.
9The application proposes access to the site ultimately by way of full movement access ways to Radley Street, Sullivan Road and Gillam Drive. As subdivision of the relevant adjoining lots has not yet occurred, Radley Street and Sullivan Road cannot be accessed from the site at this point in time. Initially, the only access to the site, and the proposed surveystrata lots within, would be from Gillam Drive. The proposed access to Gillam Drive is between Lots 2 and 3A, approximately 15 metres from the Gillam Drive and Champion Drive intersection.
10There are four internal roads within the proposed subdivision. From the Gillam Road access way, one internal road continues in a straight line in a northwesterly direction (the parties labelled this road two) before intersecting with a perpendicular road (the parties labelled this road one). In the future road one provides the access to Radley Road from the site. There is also another future internal road at right angles to road one, along the southwest boundary of the site that is intended to connect with Sullivan Road. Road one also intersects with another internal road that abuts the boundary of the site with Champion Road (the parties labelled this road three). Road three in turn intersects with the internal road that proposed Lots 1 and 2 front (the parties labelled this road four). Road four in turn intersects with road two.
11The plan of the proposed subdivision appears to show a road block in road four approximately half way along road four. If this is a road block, it would have the effect of requiring anyone travelling from proposed Lot 1 to travel in a counter clockwise direction along road four, turning into road three, then into road one and then into road two in order to leave the site via Gillam Road. A person travelling from proposed Lot 2, however, would be able to travel in a clockwise direction along road four before turning into road two in order to access Gillam Drive.
12Proposed road one has a 15 metre road reserve within which is a 6 metre wide paved area and a 3 metre wide verge. Proposed road two has a 7.7 metre road reserve with a 6 metre wide pavement and a 1.2 metre footpath abutting the pavement on one side. Proposed road three has a 6 metre road reserve with a 5.5 metre pavement. Proposed road four has a 9 metre road reserve with a 6 metre pavement.
13Upon receipt of the subdivision application by the respondent, the application was referred to various agencies. Two of these agencies, the City of Armadale (City) and the Metropolitan Redevelopment Authority (MRA), advised that they did not support the proposed subdivision.
14The City did not support the proposed subdivision on the basis of inconsistency of various aspects of the proposed subdivision with a number of relevant State and WAPC policies, the CDP Structure Plan and the applicant's failure to provide sufficient detail to assess the suitability of the internal access ways for the City's waste services vehicles to access. The main issues of inconsistency with relevant polices related to the proposed internal roads, road reserves and footpaths. In addition, the City opposed the proposed full movement access to Gillam Drive due to its proximity with the roundabout controlled intersection at Gillam Drive and Champion Drive.
15The MRA did not support the proposed subdivision because it also was opposed to the proposed access to the site from Gillam Drive due to its proximity to the Champion Drive and Gillam Drive intersection. In addition it considered the proposed main internal road and the road reserve adjacent to Champion Drive were both of insufficient width.
16Upon further consultation, both the City and the MRA agreed to support the proposed access to the site from Gillam Drive on an interim basis only, providing a mechanism could be arranged to ensure that when a more suitable alternative access means became available, the access to Gillam Drive is removed.
Planning framework
17Section 138(2) of the PD Act provides that, in giving approval for subdivision of land under s 135 or s 136 of the PD Act, the respondent (and in its shoes the Tribunal) is required to have due regard to the provisions of any local planning scheme to the land under consideration, and is not to give an approval that conflicts with the provisions of the local planning scheme. Section 138(3) of the PD Act then provides that the respondent may give an approval for a subdivision proposal that conflicts with the provisions of a local planning scheme if one of the circumstances specified in that subsection applies.
18Regulation 21 of the Planning and Development Regulations 2009 (WA) further provides:
When considering a section 135 application, the Commission must have regard to all relevant matters including but not limited to these
(a)the size, shape and dimensions of each lot;
(b)the services available to each lot;
(c)drainage of the land;
(d)access to each lot;
(e)the amount of public open space to be provided;
(f)any relevant planning scheme;
(g)any relevant regulations made by the Minister under the Act;
(h)any relevant local laws relating to town planning.
19Section 241(1) of the PD Act provides that in determining an application for review in accordance with Pt 14 of the PD Act (which this application is), the Tribunal is to have:
… due regard to relevant planning considerations including
(a)any State planning policy which may affect the subject matter of the application[.]
…
Armadale Redevelopment Scheme
20As the site is within the Armadale Redevelopment Area, the provisions of the Metropolitan Region Scheme and the City's local planning scheme do not apply: s 51 of the Metropolitan Redevelopment Authority Act 2011 (MRA Act). The Armadale Redevelopment Scheme 2004 (AR Scheme) was prepared under the then Armadale Redevelopment Act 2001 (WA), and is continued in force by s 145 of the MRA Act. The AR Scheme divides the Armadale Redevelopment Area into precincts: cl 6.1. The site is in the Champion Drive Precinct.
21The general purposes of the AR Scheme are stated at cl 1.7 of the AR Scheme, and relevantly include:
(1)The general purposes of this Scheme are to:
(a)set out the planning aims and intentions of the Authority for the redevelopment area;
…
(d)provide for the orderly control of land use and development within the redevelopment area;
(e)ensure that individual developments can occur without detriment to the integrity of the redevelopment area and the locality as a whole;
…
(h)make provision for planning policies and design guidelines.
22The precinct table in the AR Scheme indicates permitted development in the various precincts. Both 'dwelling' and 'grouped dwelling' are permitted land uses within the Champion Drive Precinct. The applicable residential density coding of the Champion Drive Precinct is R40: cl 5.2 and Appendix 1 of the AR Scheme.
23Clause 5.4 of the AR Scheme provides that car parking shall be provided in accordance with the requirements of the residential design codes in the case of residential development.
24Pursuant to cl 7.1 and Appendix 4 of the AR Scheme, the Champion Drive precinct is identified as a structure plan area. Clause 7.3 of the AR Scheme provides that the purposes of a structure plan area are to identify areas requiring comprehensive planning and to coordinate subdivision and development in those areas. Clause 7.4 of the AR Scheme provides that when considering a plan of subdivision for objections or recommendations under s 142 of the PD Act, the MRA is to have due regard to a structure plan approved under the AR Scheme.
CDP Structure Plan
25The CDP Structure Plan was endorsed by the Armadale Redevelopment Authority in 2005 and amended in 2006 and 2007. The CDP Structure Plan map was last updated in May 2008.
26The purpose of the CDP Structure Plan is identified in cl 1.1 of the CDP Structure Plan as being to :
… provide a general planning framework in order to guide future subdivision and development of the Champion Drive precinct … as a basis for servicing and transport authorities to plan for future development of the area, and to provide a link between the required landowner contributions for infrastructure under Part 8 of the Armadale Redevelopment Scheme.
27Clause 10.2 of the CDP Structure Plan states that the CDP Structure Plan is to be used by the WAPC as the guide for future subdivision applications. It further states that the Armadale Redevelopment Authority has indicated a willingness to consider variations to the CDP Structure Plan at the subdivision stage of development, although depending on the extent of the changes there may be a requirement for readvertisement and adoption of an amended structure plan under the AR Scheme.
28At cl 5.1 of the CDP Structure Plan it is stated that the CDP Structure Plan proposes a subdivisional layout that aims to foster an efficient and permeable pattern of residential subdivision offering a direct relationship to strategically located public open space and a variety of lot product.
29Clause 5.2 of the CDP Structure Plan relevantly provides:
The road hierarchy and internal network proposed within the [CDP Structure Plan] represents a site responsive road layout that embraces the road network elements outlined in the Western Australian Planning Commission's Liveable Neighbourhoods Community Code and Council's road and traffic requirements.
…
Vehicular access into the [CDP Structure Plan area] will be provided via four access points onto the external road network, one from Lake Road and Champion Drive, and two from Gillam/Seville Drive.
…
The boulevard roads including the entrance of Lake Road, and the widening of Westfield Road, measure between 22 m and 25 m in width. The remaining connector roads running through the precinct measure 16 m in width. All other road reserves have a minimum width of 15 metres to accommodate trees within the verge on both sides of each road in addition to services, footpath and the like. The only exceptions to this rule are as follows:
•Where roads about public open space, Lake Road or Champion Drive, and a reduced verge is proposed (given there is no need for services on that side of the road); and
•All of the proposed laneways which have been designed to be a minimum of 7 metres in width. Visitor parking will be accommodated via the provision of parking embayments at a ratio of one per two lots adjacent to those lots having rear lane access. The proposed location of car parking bays will be shown on the plan of subdivision and resolved in consultation with the City of Armadale at that stage of development.
Given the highly permeable nature of the subdivisional road design proposed in the [CDP Structure Plan], a flexible and robust road network will be created that not only maximises the opportunity for creating regular shaped lots, but also provides for efficient movement of motorised traffic through the estate and nonmotorised traffic by allowing an integrated pedestrian/cycle network to be developed. The roots identified on the [CDP Structure Plan] link all of the major features within the precinct in addition to nearby centres and recreational facilities.
30The two access points into the CDP Structure Plan area from Gillam Drive are not located on the site.
31The CDP Structure Plan does not show any laneways on the site.
32Clause 5.6 of the CDP Structure Plan relevantly states that:
Rather than refine the R40 Residential Density Coding allocated by the Scheme to the total precinct, the [CDP Structure Plan] provides guidance on the areas the [Armadale Redevelopment Authority] will prefer the development of single dwellings and/or medium density development (either in the form of a grouped housing site or laneway serviced cottage product). A key objective of the [CDP Structure Plan] is the provision of a variety of lot product for an increasingly diversifying marketplace.
…
Medium density housing will also need to be supplemented by strategically located visitor parking bays provided at the rate of 1 bay per 2 lots. The locations of the car bays are a matter to be resolved of the subdivision stage of development.
33The northwest portion of the site is identified as predominantly single housing bisected by a public road connecting to the western and southern areas of the CDP Structure Plan. The south-east portion is identified as medium density grouped housing in the CDP Structure Plan.
34Clause 6.3.2 of the CDP Structure Plan refers to a proposed Gillam Drive/Precinct Intersection slightly south of the site, which was deleted from the final structure plan. The predicted traffic volume allocated to the Gillam Drive access into the precinct in the CDP Structure Plan is 200 vehicles per day. It is stated in cl 6.3.2 of the CDP Structure Plan in relation to this proposed intersection that:
…
Despite the recommendations of the GHD Traffic Report, the City of Armadale advise that partial channelisation and the creation of a right hand turning pocket are required to safely accommodate vehicles entering/leaving Gillam Drive in this location. Having assessed the cost of constructing this intersection and the associated loss of urban land against the relatively low volume of traffic predicted to use the intersection, it was decided to delete this intersection from the final [CDP Structure Plan].
Policies
35The respondent has a number of development control policies that have been prepared and adopted in order to guide decisionmaking in relation to subdivision proposals. Those that are relevant to determination of this matter are:
1)Development Control Policy 1.1: Subdivision of Land General Principles (DCP 1.1);
2)Development Control Policy 1.3: Strata Titles (DCP 1.3)
3)Development Control Policy 1.4: Functional Road Classification for Planning (DCP 1.4);
4)Development Control Policy 1.7: General Road Planning (DCP 1.7)
5)Development Control Policy 2.2: Residential Subdivision (DCP 2.2);
6)Development Control Policy 2.6: Residential Road Planning (DCP 2.6).
36The respondent, together with the Department of Planning, published a policy document entitled Liveable Neighbourhoods in 2009. This document is 'an operational policy for the design and assessment of structure plans (regional, district and local) and subdivision for new urban (predominantly residential) areas in the metropolitan area and country centres, on greenfield and large urban infill sites': Exhibit 2, page 343. Liveable Neighbourhoods contains eight 'Elements', each of which have 'objectives' and 'requirements'. 'Requirements' present a range of qualitative and quantitative responses to meeting the 'objectives' of the policy.
37The respondent endorsed Guidelines for the Design and Geometric Layout of Residential Roads in 1998, which provide suggested design criteria for each level of road in the road hierarchy. The respondent has also endorsed Transport Impact Assessment Guidelines in 2016.
38State Planning Policy 3.1 Residential Design Codes (R-Codes) are relevant when considering residential subdivision as this policy can assist in understanding the potential requirements for residential development of the lots created by a proposed subdivision.
39The Champion Drive Precinct Subdivision Guidelines were made under the AR Scheme and endorsed by the Armadale Redevelopment Authority in 2006. The revised Champion Drive Residential Guidelines were adopted by the Armadale Redevelopment Authority in 2010.
Issues
40In determining whether the proposed subdivision should be refused or approved (unconditionally or subject to conditions), in the circumstances of this application the Tribunal needs to consider, in particular, the following issues:
1)Whether the proposed internal roads and road reserves are sufficient to accommodate appropriate vehicular access, pedestrian access, services and provide sufficient amenity;
2)Whether the proposed road access onto Gillam Drive is appropriate in terms of traffic management and safety;
3)If the proposed road access onto Gillam Drive is appropriate in terms of traffic management and safety in the short term, whether it will prejudice future implementation of the CDP Structure Plan once Radley Street and Sullivan Road are connected to the site; and
4)Whether the proposed subdivision is inconsistent with the CDP Structure Plan because it does not provide for predominantly single housing adjacent to the public roads in the northwestern portion of the site, and if it is inconsistent, what weight should be given to that fact.
Internal roads
41The Tribunal has before it evidence from two engineers, Mr Colin Ryk Kleyweg and Mr Mathew Tapscott, who both have extensive civil and traffic engineering experience. The Tribunal also has evidence from two town planners, Mr James Dylon Trimble and Ms Victoria Highfield Brown.
42In the process of conferral prior to the hearing, and in the course of giving concurrent oral evidence at the hearing, it was evident that Mr Kleyweg and Mr Tapscott are largely in agreement in relation to the engineering issues raised by the proposed subdivision. Mr Kleyweg and Mr Tapscott agreed the following matters:
1)Ultimately, access to the site should be provided to Heathcote Rd via Radley St. However, on a temporary basis it would be acceptable to allow access to the site from Gillam Drive via a left-in, left-out only intersection. The temporary access should be closed when Radley Road connects to the site (Exhibit 11 and oral evidence).
2)In order to create the temporary access from Gillam Drive as a left-in, left-out only intersection, and in order to provide for necessary truncations to facilitate navigation of waste vehicles into the site, it would be necessary to utilise part of proposed Lot 3A (Exhibit 11 and oral evidence).
3)The proposed road reserves and pavement widths of the internal roads are sufficient to be able to engineer appropriately safe roads for the purposes of vehicular access within the site that are able to accommodate necessary utility services (including gas electricity and communications), street lighting and street trees if:
a)The barrier marked as 'road end' in road four is removed; and
b)It is ensured that all traffic along the internal roads is one-way only, in a clock-wise direction with a speed limit of 20 kilometres per hour.
4)There should be eight visitor parking bays provided within the site, however some bays could be safely accommodated within the internal road reserve in some places so long as the roads were all restricted to one-way traffic.
5)The pedestrian access contemplated was to provide for pedestrian and cyclist access from Radley Street to Champion Drive only.
6)No street trees can be accommodated within proposed road two or three unless a one-way system is adopted.
7)Visitor parking can only be accommodated within proposed road two, three or four if a one-way system is adopted
43Mr Kleyweg is of the opinion that, subject to the limitations agreed to above, the internal roads could be designed to ensure that the local government's waste service vehicles could safely manoeuvre the internal roads. Mr Tapscott is not satisfied that this was necessarily the case on the information currently available.
44The engineers were in agreement that part of the reason why a oneway only internal road network would be necessary was to allow the roads to be designed in such a way as to encourage, by way of the physical alignment of the road pavement, a low speed road environment that would be necessary for the proposed internal road network to be sufficiently safe in the context of the proposed road reserve and road pavement widths. They also agreed that the one-way only system is also necessary to allow for the provision of sufficient visitor parking bays and the incorporation of street trees.
45Mr Tapscott is not able to say with any certainty whether eight visitor parking bays could be incorporated into the proposed subdivision on the information currently available.
46The town planning witnesses did not reach the same level of agreement in relation to the appropriateness of the internal road design from a planning perspective.
47Ms Highfield Brown's evidence is, in summary, as follows:
Department Control Policy 1.3 (DCP 1.3) states at cl 3.1.1 that strata subdivision is required to be consistent with:
1)the relevant provisions of the local government local planning scheme;
2)long term planning goals and objectives for the area concerned; and
3)policies of the respondent regarding subdivision, and in particular, the standards for roads, public open space and residential design.
48Further, at cl 3.3.6 of DCP 1.3 it is stated that:
All strata schemes, particularly those involving the creation of vacant strata title lots, will be examined in a similar way as conventional applications for subdivision … to ensure consistency of approach and that the provisions of the Strata Titles Act are not used to circumvent the normal requirements of subdivision.
49Liveable Neighbourhoods is a policy that is applicable to the proposed subdivision. Based on expected traffic movements on the internal roads contained in the applicant's transport impact assessment (provided with the proposed subdivision) the internal roads should be categorised as Access street D under Liveable Neighbourhoods. An Access street D is a narrow yield or giveway street and according to Table 4 in Liveable Neighbourhoods should have a road reserve of 11.5 to 15 metres with a pavement of 5.5 to 6 metres.
50Ms Highfield Brown considers the internal roads in the proposed subdivision should be classified as 'access ways' for the purposes of DCP 2.6. Clause 3.3.3 of DCP 2.6 provides that, in relation to access ways:
Reserve widths should be in the range of 11.55m comprising:
•a carriageway of 5.56m in order to encourage low vehicle speeds in keeping with the character of the street;
•verges being the minimum necessary to accommodate services, parking bays and in both verges mature large canopied trees of a species specified by the local government.
51The CDP Structure Plan requires road reserves of 15 metres for the internal roads in the proposed subdivision.
52The proposed internal roads do not meet either the deemedtocomply provisions or the design principles in cl 5.3.5 of the RCodes. Clause 5.3.5 of the R-Codes states:
| Design Principles Development demonstrates compliance with the following design principles(P) | Deemedtocomply Development satisfies the following deemedtocomply requirements(C) |
| 5.3.5 Vehicular Access | |
| P5.1 Vehicular Access provided for each development site to provide: • vehicle access safety; • reduced impact of access points on the streetscape; • legible access; • pedestrian safety; • minimal crossovers; and • high quality landscaping features. | C5.1 Access to onsite car parking spaces to be provided: • where available, from a rightofway available for lawful use to access the relevant lot and which is adequately paved and drained from the property boundary to a constructed street; • from a secondary street where no rightofway exists; or • from the primary street frontage where no secondary street or rightofway exists. |
| P5.2 Development with potential to be subdivided to create 20 or more green title, strata or survey strata lots provides legible internal and external connections to the surrounding road network and accommodates traffic movement and volume, visitor parking, pedestrian access, street shade trees, utility services and access for waste collection and emergency service vehicles. | C5.2 Driveways to primary or secondary street provided as follows: • driveways serving four dwellings or less not narrower than 3m at the street boundary; • no driveway wider than 6m at the street boundary and driveways in aggregate no greater than 9m for any one property. |
| C5.3 Driveways shall be • no closer than 0.5m from a side lot boundary or street pole; • no closer than 6m to a street corner or the point at which a carriageway begins to deviate; • aligned at right angles to the street alignment; • located so as to avoid street trees, or, where this is unavoidable, the street trees replaced at the applicant's expense or replanting arrangements to be approved by the decisionmaker; and • adequately paved and drained. | |
| C5.4 Driveways designed for two way access to allow for vehicles to enter the street in forward gear where: • the driveway serves five or more dwellings; • the distance from a car space to the street is 15m or more; or • the street to which it connects is designated as a primary distributor or integrator arterial road. | |
| C5.5 Driveways for multiple and grouped dwellings where the number of dwellings is five or more, shall be: • a minimum width of 4m; and • designed to allow vehicles to pass in opposite directions at one or more points. | |
| C5.6 Driveways designed for multiple and grouped dwellings may be reduced to no less than 3m where it is necessary to retain an existing dwelling and a passing bay or similar is provided. | |
| C5.7 Where any proposed development has potential to be subdivided to create 20 or more green title, strata or survey strata lots, with each of these lots obtaining driveway access from a communal street, a minimum total width of 12 metres is required for the communal street which includes a paved vehicular carriageway with a minimum width of 5.5 metres and a pedestrian path as required by clause 5.3.6. |
53Proposed roads two and three form the majority of the length of the internal roads and they do not contain sufficient space for street trees, landscaping or visitor parking. Four of the proposed visitor parking bays are in parts of the site that would eventually be connected to Radley Street and Sullivan Street. As such, at some point they would no longer be able to be used as visitor parking bays. In addition, it is not possible to adequately assess the legibility of the proposed access into the site from the future Radley Street and Sullivan Street as neither of these roads are currently constructed to extend to the site. If the internal roads were to operate as one-way only, this would result in the occupants of the proposed subdivision traversing the entire internal road network in the course of departing from and returning to home. This would result in a network that is confusing and inconvenient to residents and visitors creating issues of legibility and potentially inviting noncompliance. A one-way only road network also creates questions about how proposed road one would connect with, and transition between, Radley Street, which is two-way.
54The amenity of the CDP Structure Plan area, both as built so far and as proposed in the CDP Structure Plan, is reasonably high with wide streetscapes. One nearby subdivision in Belches Loop is inconsistent with the wider existing and contemplated amenity for the area. However, that subdivision was approved under relevantly different planning policy framework and is unlikely to be replicated.
55Mr Trimble agrees that Liveable Neighbourhoods is a policy relevant to consideration of the proposed subdivision, however it is his view that where matters are covered by the AR Scheme and the R-Codes, the provisions of those documents apply to the exclusion of any different provision in Liveable Neighbourhoods. This is because the AR Scheme specifically refers to the RCodes. In Mr Trimble's view, the internal roads come within the meaning of 'communal streets' as defined in the RCodes. As such, they are not roads and do not involve any road reserves. Therefore all of the policy provisions in relation to roads and road reserves in Liveable Neighbourhoods, DC 1.4, DC 1.7 and DC 2.6 do not apply to the proposed subdivision.
56The Tribunal is not persuaded that Mr Trimble's view in relation to the applicability of the planning policies to the internal roads is correct.
57Subject to one of the circumstances in s 138(3) of the PD Act being established, the respondent is not able to approve a subdivision proposal that is inconsistent with the relevant local planning scheme. In this case, the AR Scheme is the relevant local planning scheme. As part of the general development requirements in the AR Scheme, it is stated that 'unless otherwise provided for in the scheme, the development of land for any of the residential purposes dealt with by the RCodes is to conform with the provisions of the Codes': cl 5.2(2) of the AR Scheme. This does not have the effect that the AR Scheme requires that a proposed subdivision comply with the requirements of the R-Codes. The fact that any later development of lots created by the proposed subdivision would be required to comply with the RCodes (unless the AR Scheme provides otherwise) is a relevant factor in determining whether or not to approve the proposed subdivision as it would not be appropriate to approve subdivision of land to create effectively undevelopable lots: see Bormolini and Western Australian Planning Commission [2014] WASAT 121 at [29] [36]. This does not mean that the R-Codes are elevated over any other policy prepared and adopted for the purpose of guiding decisionmaking in relation to proposed subdivision.
58In addition, the reasoning applied by Mr Trimble, that because the internal roads are communal access ways and will not be dedicated as public roads none of the policy provisions relating to road reserves are applicable, is entirely inconsistent with the policy position identified in DCP 1.3. That is, that strata subdivision should be consistent with the policies concerning subdivision. The Tribunal can see nothing in the planning framework, or identify anything in the reasoning offered by Mr Trimble, to support a conclusion that despite what is expressly stated in cl 3.1.1 of DCP 1.3, the provisions of the R-Codes in relation to communal access ways should be understood as entirely displacing other relevant policy provisions.
59Mr Trimble agrees that the proposed internal roads do not meet the requirements of the deemed-to-comply provisions in cl 5.3.5 of the RCodes. However, it is Mr Trimble's view that the proposed subdivision does comply with the design principles in cl 5.3.5 of the R-Codes. As stated in the joint statement of Mr Trimble and Ms Highfield Brown (Exhibit 8 at paragraph 13), this is because in Mr Trimble's view:
•The subdivision provides legible internal and external connection to Gillam Drive and future connection of Radley Street;
•The subdivision provides seven visitor parking bays;
•The subdivision provides pedestrian access footpaths that can be connected to existing footpaths on Champion Drive and Gillam Drive;
•Shade trees can be accommodated within some of the communal streets;
•[the] Transport report shows the road network can accommodate traffic network and volumes generated by the subdivision for the communal street width proposed;
•…
•Vehicle sweep path analysis conducted by [the consultant] shows that both the waste and emergency services vehicles can navigate safely and appropriately through the subdivision.
60It was apparent at the hearing that this opinion was based on the proposed internal roads being one-way only. In Mr Trimble's view, a oneway only communal access system can be enforced by appropriate signage and management strategies.
61In relation to amenity, Mr Trimble initially pointed to a number of other subdivisions in the surrounding area that had similar internal road networks, in terms of layout and dimensions, as in the proposed subdivision. However, at the hearing he accepted that only one of those was sufficiently near to the site to be of any relevance in considering whether the proposed subdivision is consistent with the established amenity, in terms of streetscape, in the locality. Mr Trimble agreed with Ms Highfield Brown that the earlier subdivision in Belches Loop did not set the existing amenity of the area.
62Mr Trimble and Ms Highfield Brown agree that proposed roads two and three will not have sufficient room within the verge to allow for rubbish bins to be placed in the verge for the purposes of rubbish collection by the City.
63The Tribunal prefers the evidence of Ms Highfield Brown in relation to the consistency of the proposed subdivision with the design principles in cl 5.3.5 of the R-Codes. Mr Trimble's opinion in relation to legibility and the sufficiency of visitor parking is based on an assumption that the proposed internal roads will be one-way only. The Tribunal is not satisfied that there is any mechanism through which the Tribunal could ensure that such an assumption was enforced after the subdivision of the lots and common property was completed. The internal roads would not be public roads and no method of requiring strata lot owners and/or the strata company to ensure the internal roads, as common property, were appropriately signed and were always utilised in a one-way direction only was pointed to, or was otherwise apparent to the Tribunal. In addition, although Mr Trimble asserted that the proposed subdivision provides legible internal and external connections to the surrounding road network, he did not state any basis on which he was satisfied that the future connection between proposed road one and Radley Street would be legible in circumstances where Radley Street is a two-way street and, at least on his assumption, the proposed internal roads were to be one-way only and where there was no design details for how that circumstance was to be dealt with.
64Finally, Mr Trimble's assertion that the sweep path analysis showed that both the waste and emergency services vehicles can navigate safely and appropriately through the subdivision was not in fact supported when close regard was had to the analysis. The sweep path analysis and the traffic impact analysis was carried out on the basis that the 'road end' identified in the plans of the proposed subdivision was in place in proposed road four. There is no analysis of the impact, if any, of the removal of the identified road end and the implementation of a circular one-way only road system.
65The Tribunal is satisfied that the proposed internal road network, other than proposed road one, does not comply with the provisions of Liveable Neighbourhoods in relation to the minimum road reserve and road pavement widths for Access street D type access ways, which are the relevant category for the purposes of determining this subdivision proposal.
66In relation to DC 2.6, the proposed internal roads, other than proposed road one, do not provide the minimum width road reserve required for an access way specified in cl 3.3.3 of DC 2.6, which is the relevant category under that policy. The Tribunal is not satisfied that proposed roads two, three and four have sufficient width in terms of proposed road reserve to accommodate required visitor parking and large trees within the verge if the internal roads are two-way.
67The Tribunal is satisfied that the proposed internal road network does not comply with the deemed-to-comply provisions in cl 5.3.5 of the RCodes. It also does not comply with the design standards in cl 5.3.5 of the R-Codes.
68The proposed internal roads have road reserves less than specified in the CDP Structure Plan. The Tribunal is satisfied that the CDP Structure Plan evinces an intent to ensure a good level of amenity in terms of open, wide access ways with sufficient verge to incorporate street trees, pedestrian paths and street lighting. The internal roads in the proposed subdivision are inconsistent with that aspect of the CDP Structure Plan.
69The Tribunal is satisfied, on the agreed evidence of the engineering experts, that it is possible to design and engineer an internal road network consistent with that indicated in the proposed subdivision, however, that would only be engineered in a sufficiently safe way if the internal road network was implemented as a one-way only network.
70The Tribunal is not satisfied, on the information before it, that such an arrangement would be safe or legible at the point where future Radley Street connects with proposed road one.
71The Tribunal is also not satisfied that there is any legally enforceable way of ensuring that the proposed internal roads are, once subdivision has occurred, adequately sign posted and managed so as to ensure that the internal roads, which would be common property, are operated into the future as oneway roads.
72If the proposed internal roads were to operate as two-way roads, it would not be possible to provide the number of visitor parking bays that the engineers considered necessary (eight) or the number of visitor parking bays that the planners considered necessary (seven). It would also not be possible to incorporate street trees along proposed roads two or three.
73While one of the engineers expressed confidence that the proposed internal roads could be designed in such a way as to ensure that waste service and emergency vehicles could safely navigate the proposed internal roads (assuming a one-way only road network), in fact no analysis is before the Tribunal to provide any basis for the Tribunal to be satisfied of this fact.
74In all of those circumstances, the Tribunal is not satisfied that there is a reason to depart from the relevant policies and from the strategic intent identified in the CDP Structure Plan in relation to the proposed internal roads.
Proposed road access onto Gillam Drive
75Mr Tapscott and Mr Kleyweg agree that the proposed access to the site from Gillam Drive should be closed once access could be obtained to the site from Radley Street or Sullivan Road. Mr Tapscott explained that two access points to higher order roads promotes the use of internal roads as a short cut through the proposed subdivision. The increased vehicular traffic using the proposed internal roads would be undesirable from a safety perspective, particularly in light of the road reserve widths of the proposed internal roads.
76Ms Highfield Brown is of the opinion that permanent access to the site from Gillam Drive is not appropriate because (Exhibit 7 at paragraph 33):
…
(a)The proposed internal road reserve connecting with Gillam Drive is 7.7 metres. The Champion Drive Structure Plan requires access road reserves to be 15 metres. … Liveable Neighbourhoods requires 14.2 metres. … The Residential Design Code requires 12 metres.
(b)Given the road network identified in the Structure Plan, the Gillam Drive access is likely to provide a rat run for properties to the west and north, who will obtain direct access to Gillam Drive, in comparison to access via Heathcote Road.
(c)The road reserve connection through the subject land will be private common property, raising management issues of this land by the strata body, including public indemnity, any necessary public traffic signage and maintenance issues.
(d)It is my opinion that the implementation of traffic management measures including different pavement materials, no through road signage, speed humps or a boom gate/chain of this will not be a sufficient deterrent for vehicles outside the strata subdivision to utilise the Gillam Drive access. Furthermore, the amenity of the residents of the subject application will be greatly impacted by the throughtraffic utilising their street network to access the broader locality, given the street widths are well below the of public roads expected in such a situation.
77Mr Trimble said at the hearing that he considered it a matter for the engineers to advise as to whether two access points into the site is appropriate for the proposed subdivision.
78The Tribunal is satisfied that two access points into the site would be inappropriate as it would potentially promote the use of the proposed internal roads by vehicles from outside the site in order to access higher order roads surrounding the site. This is undesirable for two reasons. Firstly, the proposed internal roads have insufficient road reserve widths for safe use by a higher number of vehicles than just those accessing their homes within the site. Secondly, an increased traffic flow would potentially have an adverse impact on the amenity of the lots within the site.
79Therefore, in order to be satisfied that the proposed access from Gillam Drive is acceptable, the Tribunal needs to be satisfied that there is a legally enforceable mechanism by which it can be assured that once access to the site is available from Radley Street and/or via Sullivan Road, the access from Gillam Drive is closed.
80The plan of the proposed subdivision identifies a portion of proposed internal road two as 'Future Lot 3B'. The applicant proposes that this land, which is 97m², would be created into an additional lot once the Gillam Drive access is no longer required.
81Until such time as the access from Gillam Drive is no longer required, Future Lot 3B and Lot 3A have to be available to be used by all of the future lot owners to access the internal roads and potentially to provide some of the necessary visitor parking bays.
82Once access from Gillam Drive is no longer required, it seems that Future Lot 3B is intended to become part of a single lot created by the combination of Future Lot 3B and Lot 3A, as Lot 3A would not abut any internal road after the creation of Future Lot 3B otherwise. Access to Lot 3A could be obtained directly from Gillam Drive, however, Future Lot 3B is too small to be developable for a single residence at the existing density coding of the site.
83The applicant does not identify how the proposed change in the status of this part of the site is to be achieved, or how the Tribunal can, at this point in time, be satisfied that the proposal can be enforced. If the land is identified as common property on an approved plan of subdivision, it would be necessary for the council of owners at some later point to convert that land into an additional lot.
84It is not currently known how long it might be before the site can be accessed via Radley Street or via Sullivan Road. As the applicant submits, it could be twenty years away.
85Ms Highfield Brown is of the view that in order to provide for the change in the use of Future Lot 3B and Lot 3A it would be necessary in the future for the council of owners to apply for further subdivision, and/or an amalgamation, to create a new Lot 3 out of Future Lot 3B and Lot 3A. Putting aside for the moment whether this is correct, the Tribunal agrees with Ms Highfield Brown that if the closing of access to Gillam Drive did require actions to be undertaken by the strata company in the future, it would not be possible, by way of imposing a condition of subdivision approval, to force that presently unformed strata company to take some identified future action.
86The Strata Titles Act 1985 (WA) (ST Act) provides for two mechanisms by which it might be possible to identify on the plan of subdivision a single Lot 3 (in place of Future Lot 3B and Lot 3A) that is subject to restrictions that would allow that part of the site to be used for the purposes of vehicular access and visitor parking until such time as the access from Gillam Drive is no longer required.
87A survey-strata plan may provide for easements (of a type prescribed) that have effect upon registration of the plan: s 5D of the ST Act. An easement relating to vehicle access, parking or turning is one of the types of easement that may be provided for on a survey-strata plan: reg 14A of the Strata Titles General Regulations 1996 (WA).
88However, an easement of this type may be varied or discharged with the approval of the WAPC by an instrument signed by every person who has an interest in the easement (in this case all of the future lot owners). Once the instrument is registered, the Registrar of Titles is required to amend the surveystrata plan in accordance with the instrument: s 5F of the ST Act.
89A survey or a strata-survey plan may be endorsed so as to restrict the use of an area or space as identified on the plan: s 6 of the ST Act. This process appears to only be possible after a survey or strata-survey plan has been registered, and requires a resolution without dissent by the strata company to be made. It is an offence to use the identified area or space in a manner that contravenes the restriction placed on the area or space by the endorsement.
90An endorsement restricting the use of an area or space on a survey or strata-survey plan may be varied or removed by a resolution without dissent by the strata company.
91Thus, it seems there is potential to have a lot made subject to an easement (if survey-strata is contemplated) or for the plan to be endorsed with a restriction on the relevant part of the site so as to allow that part of the site to be used for vehicular access and visitor parking. It is the case that both of the available mechanisms under the ST Act can effectively be reversed by the future strata company following subdivision occurring. It seems unlikely that a strata company would do so prior to alternative access being available to the site as that would negatively impact on all of the lot owners. However, neither of these mechanisms results in a situation that automatically changes once the access from Gillam Drive is no longer required. As stated earlier, there is no way that the Tribunal can, by way a condition of subdivision approval, require the future strata company to take any particular action.
92In the circumstances, where the proposed internal roads are to be common property and not public roads, and where the ongoing provision of access to the site from Gillam Drive once access is available to the site from Radley Street and/or Sullivan Street is undesirable in this case, the Tribunal is not satisfied that the proposed subdivision is appropriate.
Consistency with CDP Structure Plan
93Ms Highfield Brown is of the view that the proposed subdivision is not consistent with the CDP Structure Plan for a number of reasons. It is her view that the CDP Structure contemplates an extension of Radley Street (which is a public road) providing access to the site. It also contemplates the provision of predominantly single housing abutting the Radley Street extension. In Ms Highfield Brown's view, it is significant that the proposed subdivision does not provide for any public road. In addition, Ms Highfield Brown points to the requirement in the CDP Structure Plan for the road reserves to be a minimum of 15 metres in width.
94Mr Trimble did not agree. It was his view that the proposed subdivision was generally consistent with the CDP Structure Plan.
95As stated earlier, the Tribunal is satisfied that the proposed subdivision is inconsistent with the CDP Structure Plan with respect to the proposed internal roads. The CDP Structure Plan provides for wide road reserves which are sufficient to provide large verges capable of incorporating landscaping, pedestrian pathways and street lighting. The degree of departure in the proposed subdivision from what is contemplated in the CDP Structure Plan is significant and the Tribunal is satisfied this would negatively impact on the amenity of this part of the CDP Structure Plan area.
Conclusion
96For all of the reasons canvassed above, the Tribunal is satisfied that the correct and preferable decision in the circumstances of this application is to refuse the application for subdivision approval.
Orders
The Tribunal orders that:
1.The application is dismissed.
2.The decision of the respondent made on 8 November 2016 to refuse the application to subdivide Lot 801 Gillam Drive, Seville Grove in accordance with the revised plan of subdivision dated 21 September 2016 is affirmed.
I certify that this and the preceding [96] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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