Barrett-Lennard and Western Australian Planning Commission
[2006] WASAT 319
•31 OCTOBER 2006
BARRETT-LENNARD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 319
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 319 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:643/2005 | 3 AUGUST 2006 | |
| Coram: | MR J JORDAN (MEMBER) | 31/10/06 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The application for subdivision not allowed. | ||
| B | |||
| PDF Version |
| Parties: | JOHN BARRETT-LENNARD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Special rural zone Rezoned to rural residential Swan Valley Planning Act 1995 'Area A' Proposal inconsistent with original subdivision guide plan No outline development plan for the subject land Draft Town Planning Scheme under preparation Land subject to additional use of restaurant, wine-making and display, sale and consumption of wine Attempt to lift additional uses unsuccessful Use of restrictive covenants to control land use not supported Additional uses on smaller lots not supported |
Legislation: | City of Swan Town Planning Scheme No 9, cl 2.2.3, cl 8.2.5.3, cl 8.2.5.4, cl 8.2.5.7, App 6(B) Interpretation Act 1984 (WA), s 37 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 137(3), s 138, s 138(2), s 251(1) Planning and Development (Consequential and Transitional Provisions Act) 2005 (WA), s 4, s 17, Sch 1 Swan Valley Planning Act 1995 (WA), s 7 Town Planning and Development Act 1928 (WA), s 20(5), s 26(1)(a)(i) Transfer of Land Act 1893 (WA), s 129 BA |
Case References: | Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 Koltasz Smith and Partners v Western Australian Planning Commission [2000] WATPAT 1 WR Carpenter Properties Pty Ltd and Griffin Cole Pty Ltd and Western Australian Planning Commission [2006] WASAT 200 [16] Nil |
Orders | 1. The application for review of the respondent's decision to refuse the subdivision of Lot 108 and Pt Lot 109 Corona Way, Belhus, is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BARRETT-LENNARD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 319 MEMBER : MR J JORDAN (MEMBER) HEARD : 3 AUGUST 2006 DELIVERED : 31 OCTOBER 2006 FILE NO/S : DR 643 of 2005 BETWEEN : JOHN BARRETT-LENNARD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Special rural zone - Rezoned to rural residential - Swan Valley Planning Act 1995 'Area A' - Proposal inconsistent with original subdivision guide plan - No outline development plan for the subject land - Draft Town Planning Scheme under preparation - Land subject to additional use of restaurant, wine-making and display, sale and consumption of wine - Attempt to lift additional uses unsuccessful - Use of restrictive covenants to control land use not supported - Additional uses on smaller lots not supported
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Legislation:
City of Swan Town Planning Scheme No 9, cl 2.2.3, cl 8.2.5.3, cl 8.2.5.4,
cl 8.2.5.7, App 6(B)
Interpretation Act 1984 (WA), s 37
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 137(3), s 138, s 138(2), s 251(1)
Planning and Development (Consequential and Transitional Provisions Act) 2005 (WA), s 4, s 17, Sch 1
Swan Valley Planning Act 1995 (WA), s 7
Town Planning and Development Act 1928 (WA), s 20(5), s 26(1)(a)(i)
Transfer of Land Act 1893 (WA), s 129 BA
Result:
The application for subdivision not allowed.
Category: B
Representation:
Counsel:
Applicant : Mr K Adam (Acting as Agent)
Respondent : Mr A Shuy
Solicitors:
Applicant : KA Adam & Associates
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Koltasz Smith and Partners v Western Australian Planning Commission [2000] WATPAT 1
WR Carpenter Properties Pty Ltd and Griffin Cole Pty Ltd and Western Australian Planning Commission [2006] WASAT 200 [16]
(Page 3)
Case(s) also cited:
Nil
(Page 4)
Summary of Tribunal's decision
1 Mr John Barrett-Lennard applied to subdivide Pt Lot 109, and Lot 108 Corona Way, Belhus into four lots of one hectare each and one lot of 1.31 hectares. The Western Australian Planning Commission opposed subdivision because it considered an outline development plan was required, the lots would be inconsistent with the objectives for Area A of the Swan Valley Planning Act 1995 (WA), and the lot sizes would be too small for the additional uses that would be allowed under the existing additional use designation of Pt Lot 9.
2 The Tribunal found that an outline development plan was not critical and the lots would be consistent with Area A objectives. The Tribunal further found, however, having four 1 hectare lots instead of one 4 hectare lot with the additional use designation was not acceptable. The Tribunal also did not support the applicant's suggested use of restrictive covenants to prevent the development of the additional uses on the new lots until amendments could be made to the provisions of the town planning scheme.
3 The application for review was refused.
Introduction
4 These proceedings were brought by Mr John Barrett-Lennard (applicant), pursuant to s 26(1)(a)(i) of the Town Planning and Development Act 1928 (WA) (TPD Act) (now Planning and Development Act 2005 (WA) (PD Act) s 251(1)), for review of the decision of the Western Australian Planning Commission (the respondent) to refuse the application for the proposed subdivision involving Lot 108 and Pt Lot 109 Corona Way, Belhus (subject land).
5 The subject land rises steeply at its eastern edge from a reserve for public recreation within which runs Ellen Brook, and then slopes moderately up to the north-west. Lot 108 has an area of 1.32 hectares with a house and outbuildings. Pt Lot 109 has an area of 4.01 hectares with scattered vegetation, a shed and a water tank. Corona Way is a cul-de-sac which runs north-west to south-east. Pt Lot 109 has frontage to the north-east side of the road but extends to the east beyond the head of the cul-de-sac. The smaller Lot 108 extends from the head of the cul-de-sac to the east and south and has a common boundary with Pt Lot 109. There was comment that the shed on Pt Lot 109 might have
(Page 5)
- been used as a winery and for wine tasting, but there was no evidence of an approval for the actual conduct of such uses.
The proposed subdivision
6 The application was essentially for the subdivision of Pt Lot 109, but included a strip of the northern edge of Lot 108 not more than 1 metre wide at its northern boundary. The remainder of Lot 108 of 1.3148 hectares would contain the house.
7 Pt Lot 109 would become four lots. Two western lots would be Lot 11, a 1 hectare lot containing the shed, with an 84.46 metre frontage to Corona Way at the south-western boundary and, behind, Lot 12, a battleaxe lot of 1 hectare. To the east would be Lot 14, a 1 hectare lot with a 10 metre frontage to the Corona Way cul-de-sac head and behind Lot 13, a 1 hectare battleaxe lot. Both Lot 13 and Lot 14 would have a common boundary with and overlook the Ellen Brook reserve.
Planning framework
8 The subject land is zoned 'Rural' in the Metropolitan Region Scheme. In April 2003 when the application to subdivide was lodged, the subject land was zoned 'Special Rural Zone No 7 - Belhus Estate' in City of Swan Town Planning Scheme No 9 (TPS 9). The subject land and neighbouring lots had been created consistent with subdivision guide plans. The plan which included Pt Lot 109 was adopted in 1994, to accord with an area designated in 1992 as 'Additional Use 21'. The additional uses of Additional Use 21 are set out in Appendix 6(B) of TPS 9:
"The following are additional uses;
'P' use – wine-making
'IP' use – home business
'P' use – display, sale and consumption of wine
'IP' use – kiosk
'AA' use – restaurant."
9 The following are special conditions:
"c) approval to the restaurant use as an 'AA' use will relate to a singular site only and is not to be construed as approval
- for two restaurant sites as indicated on the plan of 'potential site development' in the Scheme Text."
10 Clause 2.2.3 of TPS 9 provides that 'P' is a permitted use, 'IP' is a use not permitted unless incidental to the predominant use and 'AA' is not permitted unless special permission is granted by council.
11 The subject land was re-zoned to 'Rural Residential' by Amendment 246 to TPS 9 in June 2004. The Additional Use 21 designation was retained for Pt Lot 109. The stated purpose of the Rural Residential zone is "to provide the opportunity for site-sensitive rural residential development."
12 Clause 8.2.5.3 of TPS 9 provides that:
"Subdivision or development within the Rural Residential Zone shall take place only after comprehensive planning. The Council, before assessing any proposal for subdivision or development of land within the zone, shall require the preparation and adoption of an Outline Development Plan in accordance with the succeeding provisions of this sub-clause. Generally all development or subdivision of land shall be in accordance with the adopted Outline Development Plan for the locality."
13 Clause 8.2.5.4 lists matters to be addressed in the preparation of an outline development plan (ODP).
14 Clause 8.2.5.7 provides that:
"Without affecting the generality of paragraph 8.2.5.3, the requirement of the preparation and adoption of an Outline Development Plan may be waived in the case of subdivisions resulting in the creation of not more than three lots, if, in the opinion of Council, the proposal:
a) complies with the intent of paragraph 8.2.5.4;
b) does not require and it is unlikely to create the requirement for additional services; and
c) does not prejudice the subsequent preparation and adoption of an Outline Development Plan."
(Page 7)
15 The City has prepared draft Town Planning Scheme No. 17 (TPS 17) which was said to be currently with the respondent for submission to the Minister for Planning and Infrastructure for final approval. TPS 17 maintains the zoning and additional use designation of the subject land.
16 The subject land is located within 'Area A' of the Swan Valley Planning Act 1995 (WA) (SVP Act). Section 7 of the SVP Act provides planning objectives for any development in Area A. The relevant objectives are addressed below in the submissions of the parties.
17 In the submissions on this matter, the respondent also referred to:
State Planning Policy No 1 – State Planning Framework (SPP 1)
State Planning Policy No 2.5 – Agriculture and Rural Land Use Planning (SPP 2.5)
Development Control Policy 1.1 – Subdivision of Land – General Principles (DC 1.1)
Development Control Policy 3.4 – Subdivision of Rural Land (DC 3.4).
Issues
18 The parties identified the following as the issues to be considered in the determination of this matter:
1. Whether approval to subdivide the subject land would be in conflict with TPS 9:
(i) without an Outline and Development Plan; and
(ii) given the Additional Use designation relating to Pt Lot 109 and the subject land;
2. If the proposed subdivision is in conflict with the local town planning scheme, whether approval to subdivide the subject land would be permissible under s 138 of the PD Act;
3. Whether approval to subdivide the subject land would be inconsistent with the SVP Act;
4. Whether the proposed subdivision overcomes the general presumption against subdivision of rural land;
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- 5. Whether approval to subdivide the subject land would be inconsistent with the principles of orderly and proper planning; and
6. If the application should be granted, whether conditions should be imposed upon the grant of approval.
TPS 9 and the proposed subdivision
19 The first point under this heading is whether subdivision absent an ODP would be in conflict with TPS 9. Ms Sarah Cosstick, a town planner who appeared as a witness for the respondent, argued that the proposed subdivision fails to comply with cl 8.2.5.3 because no new ODP for the subject land has been prepared to replace the 1994 subdivision guide plan. She identified as potential issues to be addressed in the preparation of a new ODP, in part from cl 8.2.5.4:
• Revegetation to address landscape, environmental impacts and erosion, particularly in relation to Ellen Brook.
• Drainage design, particularly in respect of Ellen Brook.
• Location of building envelopes.
• Land use controls for the additional uses permitted on the lots.
21 Mr Ken Adam, a town planner who appeared for the applicant, said the 1994 subdivision guide plan reflected the intention of the owner in 1992 to use Pt Lot 109 for the purposes set out in Appendix 6(B) of TPS 9. The lot size was not the result of the land being unsuitable for subdivision and so this should not preclude subdivision now. Investigation had revealed the land is suitable for subdivision, there being no dispute that effluent disposal was not a concern, and the lots proposed were consistent with lot sizes in the locality.
22 Mr Adam argued that the requirement for an ODP should be waived under cl 8.2.5.7 as the strip from Lot 108 was very small and so effectively only three lots in addition to the two existing were created.
(Page 9)
23 Ms Cosstick submitted that the ODP requirement could not be waived as the subdivision would result in the creation of five lots in total. She said that, even were the Tribunal to accept that the proposed subdivision only created three lots, the application was not considered to comply with the intent of TPS 9 as it had not addressed the design matters listed in cl 8.2.5.4.
24 Mr Shuy, counsel for the respondent, referred to Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98, in which the Tribunal criticised as undesirable planning practice, the approval of a subdivision without the preparation of the ODP required in the town planning scheme. The Tribunal notes, with respect, that Empire Securities was concerned with the creation of 99 residential lots. Lot 108 would remain virtually the same size and there would be created four lots consistent in size and character with the adjacent lot sizes created as a result of the 1994 subdivision guide plan. In this instance the limited size, the particular location and the known characteristics of the subject land support a conclusion that a formal ODP process would add little. Pt Lot 109 is bound on two sides by 1 hectare lots, one side by a road and on the fourth by the recreation reserve, such that there is limited scope for a different lot configuration. A further ODP in addition to the original subdivision guide plan is not considered essential and there is an argument that the proposed subdivision is 'generally' consistent with that overall plan, as allowed for in cl 8.2.5.3.
25 The second point under this heading is the additional use designation of Pt Lot 109. Ms Cosstick's concern was that the proposed subdivision would result in the creation of four lots with the additional uses designation, and this would be contrary to TPS 9. Appendix 6(B) specifically states that a restaurant use was for one site only and Ms Cosstick said that the one site was Pt Lot 109 in its present 4 hectare configuration. She considered it necessary for TPS 9 to be amended to remove the additional use designation prior to approval of the proposed subdivision, otherwise future land owners would have an expectation that the additional uses would be allowed for each of the four lots created and this would be an inappropriate level of development for the zone. In her opinion, the lots created would be too small for the additional uses to be carried out in an acceptable manner, and this would give rise to potential land use conflicts both between the new lots and with the neighbouring lots.
(Page 10)
26 Mr Adam argued strongly that the lots proposed were of sufficient area to accommodate the uses in Appendix 6(B), and the two lots overlooking the reserve, particularly proposed Lot 14, were particularly suited. He pointed out that a restaurant was, in any event, a discretionary use in the rural residential zone of TPS 9. He believed it most unlikely all four lots would be used for all the additional uses and there would be little land use conflict because of distance from neighbours. If it were considered essential, Mr Adam said the restaurant use could be restricted to Lot 14 by a local planning policy or a restrictive covenant, and ultimately by way of an amendment to TPS 9 or the City's proposed TPS 17.
27 The Tribunal notes that TPS 9 has particularly designated one lot of 4 hectares as additional use. It is considered that to create four lots of 1 hectare with the additional use designation with no other change in development control would be in conflict with TPS 9.
Section 138 of the Planning and Development Act 2005
28 The next issue was whether an approval to subdivide would be permissible if it were found the subdivision was in conflict with the provision of TPS 9, given that s 138(2) of the PD Act provides that the respondent is not to give a subdivision approval in such circumstances. The Tribunal noted that when this application for review was filed, s 20(5) of the TPD Act provided that the discretion of the respondent is relevantly not fettered by the provisions of the local government's town planning scheme. Although the TPD Act was repealed by s 4 and Sch 1 of the Planning and Development (Consequential and Transitional Provisions Act) 2005 (WA) (PDCTP Act) before the hearing and the publication of these reasons, the effect of s 17 of the PDCTP Act and s 37 of the Interpretation Act 1984 (WA) is that s 20(5) of the TPD Act continues to apply in relation to the determination of the review: WR Carpenter Properties Pty Ltd and Griffin Cole Pty Ltd and Western Australian Planning Commission [2006] WASAT 200 [16]. It was therefore not necessary to address the issue of whether there would be discretion to approve the subdivision under s 137(3) of the PD Act as the subdivision was considered in the light of s 20(5) of the TPD Act.
The Swan Valley Planning Act 1995
29 Ms Cosstick argued that in respect of the SVP Act, the most relevant objectives for Area A, as set out in s 7, that fall for consideration are:
(Page 11)
- "2. Encouragement of viticulture, horticulture, hobby farming and rural activities compatible with rural residential uses in the area.
3. The encouragement of tourism that complements the rural character of the area.
6. The subdivision of rural land and, in particular, the subdivision of rural land into lots of less than two hectares, only when it is consistent with the objectives set out in this section or the size of the proposed lots is not substantially different from prevailing lot sizes in the area."
30 Ms Cosstick acknowledged that the proposed lots were consistent with lot sizes in the immediate locality, but was of the view that the lots were too small for the uses listed in objective 2 and failure to remove the additional use designation from the smaller lots created would result in a concentration of uses inconsistent with the requirement of objective 3 that the rural character be complemented.
31 Mr Adam noted the Swan Valley Planning Committee originally had not objected to the subdivision, but had changed its recommendation when informed that the respondent was moved to reach a different conclusion because of concerns about the implications of the additional uses and lack of an ODP. He disagreed that the subdivision would not promote viticulture or tourist related activities. Mr Adam said wine tasting, winery, restaurant, rural residential were all uses that would be 'encouraged', the word used in s 7 of the SVP Act, by the subdivision.
32 The Tribunal is of the view that a subdivision to create 1 hectare lots for rural residential use only would be consistent with the objectives in s 7. The uses in Appendix 6(B) of TPS 9 are allowed on the existing 4 hectare lot and so at that density would be consistent with the objectives. Of concern to the Tribunal, however, is whether the proposed subdivision would result in a potential for development of the additional uses at a density that might be otherwise than contemplated in Area A.
General presumption against subdivision of rural land
33 Clause 3.1 of DC 3.4 contains a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, and endorsed local planning strategy or an endorsed local rural strategy.
(Page 12)
34 It was the respondent's submission that, although the subject land is zoned Rural Residential, subdivision would be inconsistent with DC 3.4 because of the absence of a supporting ODP.
35 Ms Cosstick traced this same ground for objection, the absence of an ODP, through Statement of Planning Policy No 1 and Statement of Planning Policy No 2.5, both of which are concerned with the protection of productive agricultural land by identifying less productive areas suitable for subdivision and the preparation of an ODP before subdivision occurs. DC 1.1 is concerned with the orderly subdivision of land and in her submission this could not be properly achieved without an ODP.
36 As indicated above, the Tribunal does not consider the absence of an ODP in this instance is of itself fatal to the subdivision of the subject land. This is not prime agricultural land, it is already zoned for rural residential use, just three additional lots will result and it is in an area of lots similar in size to those proposed. The Tribunal is of the view that the general presumption against the subdivision of rural land as a principle of general application has little bearing on the determination of this matter because of the area to be subdivided, the location, the zoning, the surrounding land use and the site characteristics.
Orderly and proper planning
37 Ms Cosstick's submission was that the proposed subdivision was unplanned and ad-hoc and therefore contrary to the orderly and proper planning of the area. The proposed subdivision would result in four lots with the existing additional use provisions applicable to each lot, a planning outcome which had not been envisaged. This, it was said, would give rise to land use conflict, inappropriate development, confusion for future land owners and be out of character with the locality. In her submission, orderly planning required an ODP and changes to the land use controls, which would prevent over-development at the expense of the environment, landscape, amenity and land capability.
38 Ms Cosstick said TPS 17 must be considered as a seriously entertained planning proposal and it contained the same zoning and planning controls for the subject land as TPS 9. She was of the opinion that the issues of the additional use designation and lot size would be more appropriately dealt with by way of an amendment to TPS 17, once it was gazetted.
39 Mr Adam argued that the subject land was suitable for subdivision and the additional uses provided for in TPS 9 were consistent with the
(Page 13)
- objectives of the SVP Act. All of the uses could be physically accommodated on any of the four proposed lots, although proposed Lots 11 and 14 would be most suitable because they have direct road frontage. In his opinion Lot 14 would be ideal for the restaurant use because of its larger developable area, its separation from the closest residence and it being adjacent to Lot 11 containing the shed for the potential winery. The restaurant use could be restricted to this lot by way of a restrictive covenant on the other lots with control eventually being included as an amendment to TPS 9 or upcoming TPS 17. The use of Lot 11 and Lot 14 in this way would be the desirable planning outcome, and would be an attractive complement to the short stay accommodation existing on nearby Lot 107.
40 It was Mr Adam's submission that the subdivision and focus on development control should always be on the substantial planning merits of a proposal, with the interpretation of instruments directed to that purpose. He believed the respondent's approach had placed undue emphasis on compliance with an overly literal and negative interpretation and, in his view, the proposal complied with the spirit and intent of all the relevant planning instruments.
41 Mr Adam explained how his client's application to the City to lift the additional use designation had come to nothing because of the City working to first finalise TPS 17. He said it was still open to the City to initiate and appropriate amendment to TPS 9 and his client would be willing to not act on an approval for six months to give the City that opportunity. A restrictive covenant could, if necessary, be imposed as an interim measure to control development. In Mr Adam's opinion it would be contrary to orderly and proper planning to refuse the application pending an amendment to future TPS 17 because of the unnecessary uncertainty and delay involved, to no demonstrable public benefit.
42 The Tribunal is of the view that orderly planning would normally be to first amend a town planning scheme if there were concerns about the planning consequences of subdividing with particular land use controls in place. The applicant in this instance considers he is being particularly disadvantaged by the cumbersome town planning scheme amendment process, combined with a scheme review in this instance. He has suggested restrictive covenants as a condition of subdivision as a means of overcoming the concerns about land use arising from the creation of the additional lots. The use of restrictive covenants as a condition of subdivision is considered below.
(Page 14)
Conditions to be imposed if the subdivision were to proceed
43 As ordered by the Tribunal, the respondent filed a schedule of conditions, without prejudice to its position, to be imposed if the Tribunal were minded to approve the subdivision. All but condition 1 were of little controversy.
44 Condition 1 was an attempted response to the applicant's suggested use of a restrictive covenant were the subdivision allowed. The condition required that a restrictive covenant be imposed on the proposed lots under s 129 BA of the Transfer of Land Act 1893 (WA) for the benefit of the City of Swan. The restrictive covenant would have at 1(a) a requirement that no development be outside designated building envelopes. At 1(b) the restrictive covenant would restrict development on the resultant lots to those permissible in the Rural Residential zone and not allow development of any of the additional uses listed in the City's town planning scheme in force from time to time.
45 At the hearing, the parties discussed at length what the condition was to achieve and how it might be worded. Concerns raised included how an owner of the new lots, particularly Lots 11 and 14, the most suitable for the additional uses, might have the opportunity to use their sites for one of the additional uses, but not both lots the same use. Separate restrictive covenants for each lot were discussed to provide for different developments suited to each lot that furthered the tourism objectives of the SVP Act but which did not result in impact on neighbours. Noted was that while restaurant was a discretionary use in Appendix 6(B), it was also a discretionary use under the basic rural residential zoning.
46 One concern was that such a restrictive covenant condition imposed on a subdivision approval might improperly fetter the City's discretion to determine future development applications. Mr Shuy referred to the former Town Planning Appeal Tribunal deleting a condition of subdivision approval imposing a restrictive covenant because it had this effect: Koltasz Smith and Partners v Western Australian Planning Commission [2000] WATPAT 1.
47 Ms Cosstick highlighted the potential confusion to owners and third parties of having development controls in each of the zoning table, an appendix to the text and on the certificate of title. She argued it was not good planning practice to have a specific scheme provision allowing uses additional to those allowed under the basic zoning and yet a further overriding control on another document preventing the development of those uses.
(Page 15)
48 Mr Adam said the restrictive covenant could be viewed as a temporary measure as eventually the town planning scheme in force would have appropriate land use controls. He referred to restrictive covenants such as those restricting the height of a building. The Tribunal considers care should be taken to distinguish between restrictive covenants where private landowners only are involved and those where the local government is made a party as part of the planning process.
49 No clear wording for condition 1(b) could be distilled from the submissions of the parties. The alternatives ranged from restrictive covenants tailored for each lot to simply not allowing the additional uses on any lots. The Tribunal has not attempted to settle on the most appropriate wording for a condition imposing a restrictive covenant on this subdivision. This is because the Tribunal as a general principle does not support the use of restrictive covenants as a land use control in substitute for planning provisions and in this instance does not find the circumstances so exceptional such that a condition of the type discussed can be supported.
50 As Mr Adam pointed out, subdivisions elsewhere have on occasion been allowed with conditions imposing a restrictive covenant. As submitted by Ms Cosstick, however, these can be generally characterised as conditions directed to further supplementing land use restrictions that would already be in the contemplation of the local authority and those seeking to develop the land. In this instance the restrictive covenant would be a device to proscribe additional uses the town planning scheme would otherwise contemplate being allowed in addition to those permitted under the base zoning. The Tribunal does not consider the use of such a condition would be consistent with sound planning practice in the circumstances of a subdivision of this type.
Conclusion
51 As set out above, the Tribunal concluded that, if there were nothing more, the absence of an ODP specifically for the subject land would not of itself be fatal to the contemplation of the proposed subdivision.
52 There is something more. In addition to the ODP issue there is the additional use designation for Pt Lot 109 and the uses allowed listed in Appendix 6(B) of TPS 9. The original subdivision guide plan showed that 4 hectares was the lot size for these uses. This distinguishes Pt Lot 9 from most of the remainder of the nearby Rural Residential lots. The proposed subdivision would result in four lots of 1 hectare each with the potential for development of the additional uses. It is acknowledged that it is
(Page 16)
- unlikely all four would be developed with one or other of the additional uses but it is a possibility nonetheless.
53 The Tribunal is of the view, and the parties acknowledged, that the preferred planning solution is to amend scheme provisions to remove the additional use designation from the subject land prior to subdivision. Proper consideration can then be given to whether certain of the lots can be subject to particular land use controls under the scheme. The applicant's recent attempts to initiate this process have been stalled as the process of finalising draft TPS 17 is completed. The applicant's frustration at the speed of the process is understood. The applicant suggested 'temporary' measure of imposition of restricted covenants on the new lots to prevent development of the additional uses otherwise especially provided for is not supported by the Tribunal as the best planning solution for the locality. The Tribunal has formed the view that the proper planning course in this instance is for the applicable town planning scheme provisions to be amended before subdivision occurs. The Tribunal has therefore determined that the application be refused.
Orders
54 The application for review of the respondent's decision to refuse the subdivision of Lot 108 and Pt Lot 109 Corona Way, Belhus, is dismissed.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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