BASTICK and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 223
•7 AUGUST 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: BASTICK and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 223
MEMBER: JUSTICE M L BARKER (PRESIDENT)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 7 AUGUST 2006
FILE NO/S: DR 129 of 2006
BETWEEN: SANDRA BASTICK
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure – Application for extension of time in which to commence application for review – Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 – Survey strata subdivision application – Minimum site area requirement under Residential Design Codes of Western Australia (2002), cl 3.1.3 – Transitional provision permitting variation to the minimum site areas set out in Table 1 of Residential Design Codes for grouped dwellings as permitted under Table 1 of the Residential Planning Codes of Western Australia (1991) – Subdivision application made within transitional period – Whether performance criteria allows up to 5% variation of minimum site area permitted under Table 1 of the Residential Planning Codes – Literal and purposive interpretation – Whether proper, genuine and realistic consideration given to policy – Policy amended when Residential Planning Codes were replaced by Residential Design Codes – Whether consideration should have been given to policy prior to amendment – Whether failure to consider planning merits – Leave to extend time granted – No error of law disclosed in determination – Application for review dismissed
Legislation:
City of Canning Town Planning Scheme No 40
Planning and Development Act 2005 (WA), s 244, s 244(3)
Residential Design Codes of Western Australia (2002), cl 3.1.1, cl 3.1 A1.1, cl 3.1.2, cl 3.1.2 A2, cl 3.1.3, cl 3.1.3 A3iv, Table 1
State Administrative Tribunal Act 2004 (WA), s 3(1), s 27(2), s 60(2), s 77(2)
State Administrative Tribunal Rules 2004 (WA), r 10
Town Planning and Development Act 1928 (WA), s 66
Result:
Application for extension of time granted
Application for review dismissed and determination of Tribunal affirmed
Category: B
Representation:
Counsel:
Applicant: Mr KA Adam (Acting as Agent)
Respondent: Mr T Sharp
Solicitors:
Applicant: KA Adam & Associates
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Addvalue and Western Australian Planning Commission [2005] WASAT 335
Bastick and Western Australian Planning Commission [2006] WASAT 20
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Lawson v Shire of Mundaring (2005) 41 SR (WA) 67
Nicholls and Western Australian Planning Commission [2005] WASAT 40
O'Connor and Town of Victoria Park [2005] WASAT 161
Case(s) also cited:
Kyrwood v Western Australian Planning Commission [2002] WATPAT 15
Salotti & Anor v Western Australian Planning Commission [2004] WATPAT 79
Smith and Western Australian Planning Commission [2005] WASAT 166
Falc & Ors v State Planning Commission [1991] WAR 522
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
Ms Bastick sought an extension of time to make an application for review of a determination of the Tribunal in relation to a subdivision application.
The President granted the extension of time, but dismissed the application for review.
The President determined that the Tribunal had not made any legal error. On the proper interpretation of the housing density provisions of the Residential Design Codes of Western Australia (2002), the proposed subdivision was deficient in minimum site area and a variation was not relevantly available. The Tribunal also did not fail to give proper, genuine and realistic consideration to an applicable policy, planning merit or precedent.
The President affirmed the decision of the Tribunal.
Introduction
Ms Sandra Bastick seeks an extension of the period within which she may make an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination of the Tribunal upon a matter involving a question of law. Section 244(3) imposes a one month time period within which a party may make an application for review under the section. Ms Bastick sought review of the determination of the Tribunal approximately 34 days out of time. The Tribunal has power under r 10 of the State Administrative Tribunal Rules 2004 (WA) to extend the period in question: O'Connor and Town of Victoria Park [2005] WASAT 161 at [32] [37].
The determination of the Tribunal, which Ms Bastick wishes me to review, involves an application for review of the decision of the Western Australian Planning Commission (Commission) to refuse approval for subdivision of Ms Bastick's property at Lot 778 (No 58) Bull Creek Road, Rossmoyne (site) into two survey strata lots of 475 square metres and 482 square metres with common property of 2 square metres.
The Commission refused the subdivision application for two reasons. First, the Commission considered that the proposal does not satisfy the site area requirements for grouped dwelling subdivision under the Residential Design Codes of Western Australia (2002) (Residential Design Codes) and the provisions of the Commission's Residential Subdivision Policy (Policy DC 2.2). Secondly, the Commission considered that approval for the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
The application for review was determined by Sessional Member Graham entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The sessional member dismissed the application for review and affirmed the Commission's decision to refuse subdivision approval: Bastick and Western Australian Planning Commission [2006] WASAT 20. The sessional member's reasons for decision carefully described the site, the legislative and policy framework, the Commission's position and Ms Bastick's position, before addressing the planning issues under the headings "[Residential Design] Codes and [Policy] DC 2.2", "Precedent" and "Planning merits of the proposal".
When Ms Bastick applied for an extension of time in which to seek review under s 244 of the PD Act, I made an order that, subject to any further order, the application to extend time and, if an extension were granted, the application for review, will be determined entirely on the documents, namely, the reasons for decision, the parties' grounds and written submissions, and any exhibit or planning instrument expressly identified in the written submissions, pursuant to s 60(2) of the SAT Act. Neither party sought an oral hearing.
Application for extension of time
I identified and considered the principal considerations in relation to an application for an extension of time in O'Connor and Town of Victoria Park at [38] – [51].
The Commission opposes an extension of time on the basis that Ms Bastick does not have an arguable case for review.
I am prepared to grant the required extension of time in this case. My findings in relation to the principal matters for consideration are as follows.
Length of delay: The 34 day delay in this case is similar to the delay in O'Connor and Town of Victoria Park which I considered to be "borderline".
Explanation for delay: Ms Bastick has given a satisfactory explanation for the delay. The subdivision application means a great deal to her personally as well as financially. She was highly distressed and unable to fully appreciate the implications of the determination when she received it from her agent, Mr Ken Adam, a consultant town planner. She was also unwell at the time and underwent minor surgery shortly after learning of the determination.
Mr Adam was not initially aware that a right of review on a question of law was available under s 66 of the Town Planning and Development Act 1928 (WA) until its repeal with effect from 9 April 2006 and thereafter under s 244 of the PD Act. When Mr Adam became aware of Ms Bastick's right and communicated it to her, he explained that, although he believed that Sessional Member Graham had incorrectly interpreted the Residential Design Codes, he was not qualified to give legal advice. Ms Bastick considered that she could not afford a lawyer to act for her. When Mr Adam indicated to Ms Bastick that he would prepare review documents at no cost to her, Ms Bastick ultimately determined to proceed in relation to a review after "some agonising on her part", in Mr Adam's words.
Whether proposed grounds of review are arguable: Having the benefit of full written argument in relation to Ms Bastick's proposed grounds of review, I am satisfied that her grounds in relation to the interpretation of cl 3.1.3 of the Residential Design Codes and whether the Tribunal considered the planning merits of the proposal are arguable.
However, as I have considered the application to extend time and the proposed substantive review grounds together, it is convenient to address each of Ms Bastick's grounds, whether leave to extend time would be granted in relation to it or not.
Prejudice to respondent: There would be no real prejudice to the Commission if leave to extend time were granted. In contrast, there would be potentially very significant prejudice to Ms Bastick if leave to extend time were not granted, as she would lose whatever benefit was available to her during the transition period under cl 3.1.3 A3iv of the Residential Design Codes.
Application for review under PD Act s 244
As I explained in Lawson v Shire of Mundaring (2005) 41 SR (WA) 67; [2005] WASAT 1 at [7] [8], in relation to the predecessor of s 244 of the PD Act which was in essentially the same terms, there are two preconditions which must be satisfied by an applicant in order to found jurisdiction to review a determination of the Tribunal.
The first precondition is that the determination must be made by the Tribunal when constituted without a member who is a legally qualified member as defined in s 3(1) of the SAT Act. Sessional Member Graham is not a legally qualified member.
The second precondition is that the determination must have been made upon a matter involving a question of law. In her letter dated 10 April 2006, in which she initially sought review of the sessional member's determination, Ms Bastick challenged the determination on a number of grounds, many of which involve questions of fact, rather than law. However, Mr Adam subsequently filed six grounds for review which clearly identify questions of law upon which the determination was made. Mr Adam's six grounds encapsulate the following four complaints:
1)The Tribunal erred in the interpretation of cl 3.1.3 of the Residential Design Codes.
2)The Tribunal erred in not giving proper, genuine and realistic consideration to Policy DC 2.2 as it applied when the Residential Planning Codes of Western Australia (1991) (Residential Planning Codes) operated.
3)The Tribunal erred in not giving proper, genuine and realistic consideration to the planning merits of the proposed subdivision.
4)The Tribunal erred in failing to give proper, genuine and realistic consideration to "precedents" identified by Ms Bastick or to the fact that approval of the application could not itself create a further precedent.
In her letter dated 10 April 2006, Ms Bastick also refers to "irregularities of process in this determination". In particular, she refers to two examples in which she says the Commission lodged its submissions late, and a further example in which the Commission "quoted the case it wished to have taken into consideration, adding an element of potential prejudice". Mr Adam did not include a ground for review concerning the Tribunal process and I accord it no weight.
Having reviewed the Tribunal file in relation to the determination, I am satisfied that there were no "irregularities of process". Although the Commission may have filed submissions outside the period specified in an order, this did not create any real prejudice to Ms Bastick. The Commission's request that the Tribunal consider its decision in Addvalue and Western Australian Planning Commission [2005] WASAT 335, which was delivered on 15 December 2005 while the determination in this case was pending, was rejected by the Tribunal: see determination at [8].
I will address each of the four reformulated grounds for review set out at [21] above in turn.
Did the Tribunal err in the interpretation of cl 3.1.3 of the Residential Design Codes?
Clause 3.1.3 forms part of Element 1 – Housing Density of the Residential Design Codes. The "note" to the acceptable development provisions of the housing density requirements states that the minimum area stipulated in Column 3 of Table 1 is not subject to variation except as set out under cl 3.1.2 and cl 3.1.3. The acceptable development provision in cl 3.1.1 A1.1, compliance with which is deemed to meet the relevant performance criteria, states as follows:
"Development which complies with the dwelling type and site area requirements set out in Columns 2, 3 and 4 of Table 1 against the relevant R-Code in Column 1, and the following provisions … "
The corresponding performance criteria in cl 3.1.1 P1 states as follows:
"Development of dwellings of the type and density indicated by the R-Code designated in the Scheme."
Subject to variations permitted by cl 3.1.2 and cl 3.1.3, therefore, both the acceptable development provision and the performance criteria for housing density in cl 3.1.1 of the Residential Design Codes require compliance with the minimum site area requirements specified in Table 1.
The site has a residential density coding of "R17.5" under the City of Canning Town Planning Scheme No 40. Column 3 of Table 1 of the Residential Design Codes specifies a minimum site area of 500 square metres and an average site area of 571 square metres for single house or grouped dwelling development on land coded "R17.5".
Clause 3.1.2 A2 of the Residential Design Codes provides that, for the purposes of assessing compliance of a proposed development with the minimum site areas set out in Columns 3 and 4 of Table 1, in the case of a lot with a corner truncation, up to a maximum of 20 square metres of that truncation shall be added to the area of the adjoining lot, survey strata lot or strata lot, as the case may be.
The site is a corner lot. In accordance with cl 3.1.2 A2 of the Residential Design Codes, it is common ground that the area of the truncation, namely 18 square metres, should be added to the site area of 959 square metres, resulting in an effective site area of 977 square metres. Whereas the acceptable development provision in cl 3.1.1 A1.1 of the Residential Design Codes specifies a minimum site area of 500 square metres and an average area of 571 square metres for each single house or grouped dwelling in the "R17.5" coding, the subdivision proposed by Ms Bastick involves a minimum site area of 475 square metres and an average area of 488.5 square metres. The minimum site area is 25 square metres or 5% less than the minimum area and the average area is 86.5 square metres or 14.4% less than the average area specified in Column 3 of Table 1.
Clause 3.1.3 A3 states, in part, as follows:
"Subject to [cl] 3.1.2 only, the following variations to the minimum site areas set out in Column 3 of Table 1 may be made:
…
iv.in the case of Grouped Dwellings in areas coded R12.5 – R17.5 and R60, the minimum site area shall be as permitted under Table 1 of the Residential Planning Codes, December 1991, where applications are made prior to 31 December 2004."
Ms Bastick's subdivision application was made prior to 31 December 2004 in reliance on the variation in cl 3.1.3 A3iv of the Residential Design Codes. In contrast to Table 1 of the Residential Design Codes, which, as noted earlier, specifies a minimum site area of 500 square metres and an average site area of 571 square metres for a grouped dwelling on land coded "R17.5", Table 1 of the Residential Planning Codes did not specify an average site area, but rather only a minimum site area of 500 square metres.
The corresponding performance criteria in cl 3.1.3 of the Residential Design Codes states, in part, as follows:
"The Commission may approve the creation of a lot of a lesser area and the Commission or a Council may approve a minimum site area of a Grouped Dwelling on a site area less than that specified on Table 1 provided that the proposed variation would meet the following criteria:
•be no more than five per cent less in area than that specified on Table 1; … "
Sessional Member Graham refused Ms Bastick's subdivision application, because although the variation she requires from the minimum site area specified in Table 1 of the Residential Planning Codes is "relatively minor" (at [50]), the maximum 5% variation in the performance criteria in cl 3.1.3 of the Residential Design Codes is not relevantly available to her, and the sessional member was not satisfied that the minimum site area provisions should not be strictly applied in the particular circumstances of the case.
Ms Bastick submits that the effect of cl 3.1.3 A3iv of the Residential Design Codes is "simply to substitute the relevant figures in Table 1, Column 3 of the [Residential Design Codes] with those of Table 1, Column 3 of the [Residential Planning Codes]. Provision 3.1.3 A3iv does not go beyond that. It is neither stated nor implied that any other provisions of the [Residential Design Codes] are affected by the provision.". Ms Bastick submits, therefore, that Sessional Member Graham erred in not taking into account the scope for a 5% variation in minimum site area allowed by the first bullet point of the performance criteria in cl 3.1.3.
As noted earlier, Table 1 of the Residential Planning Codes did not specify an average area for grouped dwellings on land coded "R17.5". As also noted earlier, the minimum lot size proposed in Ms Bastick's subdivision is 475 square metres, which is 5% less than the minimum site area specified on Table 1 of the Residential Planning Codes. If, on the proper interpretation and application of cl 3.1.3 of the Residential Design Codes, Ms Bastick could obtain the benefit of both:
(i)variation of Table 1 of the Residential Design Codes in terms of the minimum site area permitted under Table 1 of the Residential Planning Codes; and
(ii)a 5% variation from the minimum site area specified under Table 1 of the Residential Planning Codes in accordance with the first bullet point of the performance criteria in cl 3.1.3 of the Residential Design Codes,
it is within the discretion of the Commission (and the Tribunal on review) to approve Ms Bastick's proposed subdivision.
Mr Adam made essentially the same submission as that set out at [35] above to Sessional Member Graham. The sessional member described this argument at [31] as follows:
"What Mr Adam is seeking, is to apply the variation provision of clause 3.1.3 of the [Residential Design] Codes to the minimum site area requirements of the [Residential Planning] Codes in order to achieve a concession on a concession."
At [32], the sessional member determined as follows:
"The difficulty that the Tribunal has with this argument is that it attempts to take the best of both the performance criteria and acceptable development provisions and meld them to produce a permissible outcome. It is not the view of this body that a concession granted under clause 3.1.3 [A3iv] should be advantaged further by a second concession in order to advance the requirements of the replaced [Residential Planning] Codes."
The interpretation of cl 3.1.3 of the Residential Design Codes adopted by Sessional Member Graham is correct, although for a reason not specifically addressed by him.
The performance criteria in cl 3.1.3 confer a discretion on the Commission to approve the creation of a lot "of a lesser area … than that specified on Table 1 provided that the proposed variation would … be no more than five per cent less in area than that specified on Table 1" (emphasis added). Table 1 in this context is clearly a reference to Table 1 of the Residential Design Codes. Clause 3.1.3 A3iv provides that, in the case of applications made prior to 31 December 2004 in relation to grouped dwellings on land coded "R17.5", a variation to the minimum site areas set out in Column 3 of Table 1 is made in terms of the minimum site area permitted under Table 1 of the Residential Planning Codes. However, the varied minimum site area for the purposes of such a transitional application is not the site area "specified on Table 1" as referred to in the performance criteria. On a literal interpretation of cl 3.1.3, therefore, the 5% variation in the performance criteria is not available in relation to a minimum site area permitted under Table 1 of the Residential Planning Codes.
An interpretation of cl 3.1.3 that has regard to its purpose arrives at the same result as a literal interpretation. The purpose of the transitional variation in cl 3.1.3 Aiv is apparent from the following explanatory text at page 43 of the Residential Design Codes:
"The Codes have merged the Single House and Grouped Dwelling requirements under Table 1. The superseded Residential Planning Codes established lesser requirements for Grouped Dwellings than the current requirements. For a limited duration, to ensure that landowners are not disadvantaged by the introduction of the Residential Design Codes, the provisions of the [Residential Planning] Codes may be applied in the R12.5 R17.5 and R60 Codes."
The Residential Planning Codes did not contain an equivalent percentage discretion to the performance criteria in cl 3.1.3 to allow variation of the minimum site areas specified in Table 1. The purpose of the transitional provision is to ensure that landowners are not disadvantaged by the introduction of the Residential Design Codes by permitting the provisions of the Residential Planning Codes to be applied for a limited period. The purpose is not to ensure that landowners are advantaged by the introduction of the Residential Design Codes. The effect of Ms Bastick's argument would be that she would be advantaged, rather than not disadvantaged, by the introduction of the Residential Design Codes, because she would retain the benefit of the minimum site area provisions of the replaced Codes and obtain the further benefit of up to 5% less in area than the minimum area specified under those Codes, by virtue of the new Codes.
Ms Bastick also submits that, in Mr Adam's words, "the pre2002 RCodes position includes both Table 1 of the [Residential Planning] Codes and the 10% variation provision of Policy DC 2.2". Ms Bastick contends that the purpose of the transitional provision, "to ensure that landowners are not disadvantaged by the introduction of the Residential Design Codes", could not be achieved unless the 5% variation in the performance criteria were available, given that a 10% variation was previously available under Policy DC 2.2.
Ms Bastick's submission is flawed in two respects.
First, although Sessional Member Graham made a finding at [39] that "from an examination of the submissions by the parties it is clear that from 1992, Policy DC 2.2 included a provision to provide a 10% variation to the [Residential Planning] Codes minimum and average site areas", it appears that this variation was not available in the case of grouped dwellings. Clause 3.2.3 of Policy DC 2.2 dated May 1999, which the Commission attached to its submissions in these proceedings, states that the 10% variation was available only in relation to single houses.
It appears that neither party provided Sessional Member Graham with a copy of Policy DC 2.2 as it stood prior to amendments made following the replacement of the Residential Planning Codes by the Residential Design Codes in 2002. The finding at [39] appears to be based on Ms Bastick's statement at par [23] of her witness statement dated 15 August 2005 that "the 1992 [Policy] DC 2.2 allowed for a 10% variation in lot sizes (Planning Bulletin 50)". In her response to the statement of evidence of Lindsay Baxter dated 26 August 2005, Ms Bastick again relied on Planning Bulletin 50 as evidence that Policy DC 2.2 previously permitted a 10% variation in site area, and attached a copy of the Planning Bulletin. Planning Bulletin 50 is expressed in very general terms and might reasonably be read as saying that the 10% variation available under Policy DC 2.2 prior to the Residential Design Codes applied to grouped dwellings as well as single houses; see Planning Bulletin 50 at page 3. Although the Commission filed a response to the witness statement of Ms Bastick on 30 August 2005, it did not contest Ms Bastick's evidence that Policy DC 2.2 relevantly provided a 10% discretion prior to its amendment. Sessional Member Graham's apparent error at [39] is, therefore, readily explicable.
Secondly, even if Policy DC 2.2 did allow a variation of up to 10% in the case of grouped dwellings, the Policy was separate from, although it operated in conjunction with, the Residential Planning Codes. Importantly, in terms of the purpose of the transitional provision in cl 3.1.3 A3iv of the Residential Design Codes, set out at [41] above, the 10% variation in Policy DC 2.2, even if available in relation to grouped dwellings while the Residential Planning Codes were operative, did not form part of "the provisions of the [Residential Planning] Codes". The 10% variation, if it was available, cannot bear on a purposive interpretation of cl 3.1.3 of the Residential Design Codes.
It follows that the first ground for review does not succeed.
Did the Tribunal err in not giving proper, genuine and realistic consideration to Policy DC 2.2?
Ms Bastick submits that the Tribunal erred in failing to give proper, genuine and realistic consideration to the variation of up to 10% which she says was contemplated by Policy DC 2.2. She submits that the Tribunal ought to have upheld the application, because the proposed lot sizes fall within the scope of the 10% variation.
Ms Bastick's submission is flawed in two respects.
First, as discussed in relation to the first ground for review, it seems that Policy DC 2.2 did not relevantly contain a discretion of up to 10% in relation to grouped dwellings prior to its amendment.
Secondly, even if Policy DC 2.2 had contained a variation of up to 10%, Sessional Member Graham did not err in failing to apply the provisions of the Policy prior to its amendment, but rather applying the current terms of the Policy. Indeed, to have applied the provisions of Policy DC 2.2 which are no longer operative would involve an error.
The purpose of the review conducted by the sessional member was "to produce the correct and preferable decision at the time of the decision upon the review": SAT Act s 27(2). Unless the current Policy contains a corresponding transitional provision to cl 3.1.3 A3iv of the Residential Design Codes, the sessional member could not lawfully have applied provisions which are no longer in force. Moreover, to apply deleted provisions of Policy DC 2.2 would be tantamount to making a strategic planning decision that the deleted provisions should continue to apply in relation to a transitional application contemplated by cl 3.1.3 of the Residential Design Codes. The Tribunal is a substitute consent authority, but is not a strategic planning authority.
It follows that the second ground for review does not succeed.
Did the Tribunal err in failing to give proper, genuine and realistic consideration to planning merit?
Sessional Member Graham addressed the planning merits of the proposal at [43] – [50] of his reasons. At [44], the sessional member acknowledged that "the case should be determined on the intrinsic planning merits of the application and not wholly on the scope or limits of the transition provisions of the [Residential Design] Codes". Having summarised the principal aspects of Ms Bastick's evidence in relation to the planning merits of the proposal at [19(b) and (i)] and [43], and Mr Adam's evidence at [20(f)] and [46], the sessional member concluded his assessment of the planning merits of the proposal at [49] – [50] as follows:
"In the view of this Tribunal, the Codes are based upon a properly considered rationale which encourages the widest possible range of dwelling types. No argument has been advanced by the applicant on the planning merits of the proposed development which could not also be argued in favour of adherence to the Codes.
Although the Codes may often, as has been said before, appear to have harsh consequences, especially when the variation sought is relatively minor, the Tribunal has not been convinced that a compelling planning reason or counterveiling planning principle has been advanced under the precedent or planning merits argument of the applicant that is sufficiently convincing to dispense with the provisions of the Codes."
Ms Bastick submits that Sessional Member Graham "did not fairly and comprehensively address the specific planning merits of the application" as put forward by her. She submits that significant evidence as to the appropriateness and acceptability, and indeed desirability, of the proposed subdivision was put forward. However, there is nothing in the reasons for decision to demonstrate that the sessional member had regard to any of the specific planning merits advanced by Ms Bastick or Mr Adam.
It is apparent from his reasons that what Sessional Member Graham did was, in effect, ask why the minimum area provisions in Table 1 of the Residential Planning Codes should not be applied in the circumstances of the case. Those provisions, and the Residential Design Codes generally, relevantly operated as a policy (in accordance with cl 3.2.1 of Policy DC 2.2) to guide the exercise of planning discretion in relation to the subdivision application. As I observed in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], "[g]ood public administration demands no less an approach" than that adopted by the sessional member.
It is clear that the sessional member did consider merit arguments in favour of the grant of subdivision approval which might indicate that the planning principles that find expression in Table 1 of the Residential Planning Codes and the Residential Design Codes generally should not be applied in the circumstances of the case. The reasoning makes it clear that the sessional member had regard to the arguments advanced on behalf of Ms Bastick, but nevertheless took the view, which was reasonably open to him, that he was not satisfied that the precedent or planning merits arguments warranted a departure from the minimum site area requirement, even by 5%. This does not involve any error of law.
The Tribunal's reasons for a final decision must include its findings on material questions of fact, referring to the evidence or other material on which those findings are based: SAT Act s 77(2). I am satisfied that Sessional Member Graham's reasons meet these requirements. Having summarised Ms Bastick's precedent and planning merits arguments, it was reasonably open to the sessional member to express himself in the summary manner in which he did. It is clear that he had regard to the specific planning merits advanced on behalf of Ms Bastick, but was not satisfied by these arguments that the minimum site area provisions should not be applied.
It follows that the third ground for review does not succeed.
Did the Tribunal err in failing to give proper, genuine and realistic consideration to precedent?
Sessional Member Graham considered the issue of precedent [36] [42] of his reasons. At [42], the sessional member, in effect, rejected the Commission's contention that the application warranted refusal on the basis of adverse planning precedent, noting that "precedent is not of itself a stand-alone argument and is only one factor to be taken into account in determining the merits of the matter".
Ms Bastick submits that, having acknowledged that precedent is a factor, however small, "the Tribunal made no attempt to assess the precedent arguments put to it by the applicant and respondent or to reach any conclusion on the matter". She submits that the evidence put forward on her behalf shows that numerous favourable "precedents" for the application exist in the locality and that there is no possibility of approval to the application creating a precedent of any kind, because of the lapse of the transitional period.
However, it is apparent that in the part of the reasons referred to by Ms Bastick, the sessional member was concerned with the issue, raised by the Commission, of adverse planning precedent, not the argument of "precedent" in support of the application advanced by her. The Tribunal gave detailed consideration to the issue of adverse planning precedent in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71] – [77]. Sessional Member Graham's reasons are broadly consistent with that analysis. Moreover, it is clear that the sessional member did not refuse subdivision approval on the basis of adverse planning precedent.
In relation to "precedent" in support of the application, it is apparent from [50] of his reasons that Sessional Member Graham had regard to Ms Bastick's argument, but was not persuaded that it or the other merit arguments warranted a departure from the minimum site area requirements. Even if there are "numerous favourable precedents for the application in the locality", it was within the planning discretion of the sessional member, having regard to the merits of the case before him, to refuse subdivision approval.
It follows that the fourth ground for review does not succeed.
Conclusion
I consider that the required extension of time to apply for review should be granted in this case in relation to two of the four grounds advanced. Ultimately, as the application to extend time and the application for review were dealt with together, it has been convenient to address each of the grounds for review as though the application was made in time.
The determination under review, while made upon a matter involving a question or questions of law, does not disclose any legal error.
On both a literal and purposive interpretation of cl 3.1.3 of the Residential Design Codes, Ms Bastick cannot obtain what Sessional Member Graham described, at [31] of his reasons, as "a concession on a concession" in relation to minimum site area. Acceptable development provision A3iv satisfies the purpose of the transition period by applying the minimum site area provisions of Table 1 of the Residential Planning Codes as a variation to the equivalent provisions of the Residential Design Codes to ensure that landowners are not disadvantaged by the replacement of the Residential Planning Codes by the Residential Design Codes. However, the minimum site area permitted under Table 1 of the Residential Planning Codes is not "specified on Table 1" of the Residential Design Codes such that the variation of up to 5% in the performance criteria is available. Moreover, if the 5% variation were available on top of the variation provided for in acceptable development provision A3iv, the effect would be that landowners would be advantaged, rather than not disadvantaged, by the change in Codes.
Sessional Member Graham also did not fail to give proper, genuine and realistic consideration to Policy DC 2.2, the planning merits of the proposed subdivision or precedent.
Orders
I make the following orders:
1.The application made pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) to extend the time in which an application for review under s 244 of the Planning and Development Act 2005 (WA) may be made is granted.
2.The application for review is dismissed.
3.The determination of the Tribunal in Bastick and Western Australian Planning Commission [2006] WASAT 20 is affirmed.
I certify that this and the preceding [70] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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