BASTICK and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 20
•1 FEBRUARY 2006
BASTICK and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 20
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 20 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:444/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 1/02/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | 1. The application for review is dismissed 2. The decision of the respondent is affirmed | ||
| B | |||
| PDF Version |
| Parties: | SANDRA BASTICK WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Grouped dwelling Design Codes 1991 Codes R17.5 Transition provisions Planning merits Acceptable development Performance criteria Undesirable precedent Variation |
Legislation: | City of Canning Town Planning Scheme No 40 Residential Design Codes of Western Australia 2002, cl 3.1.3 Town Planning and Development Act 1928 (WA), s 5AA, s 24(5), s 61(1)(a) |
Case References: | Nil Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : BASTICK and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 20 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 1 FEBRUARY 2006 FILE NO/S : DR 444 of 2005 BETWEEN : SANDRA BASTICK
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Grouped dwelling - Design Codes - 1991 Codes - R17.5 - Transition provisions - Planning merits - Acceptable development - Performance criteria - Undesirable precedent - Variation
Legislation:
City of Canning Town Planning Scheme No 40
Residential Design Codes of Western Australia 2002, cl 3.1.3
Town Planning and Development Act 1928 (WA), s 5AA, s 24(5), s 61(1)(a)
(Page 2)
Result:
1. The application for review is dismissed
2. The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Addvalue and Western Australian Planning Commission [2005] WASAT 335
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Kyrwood v Western Australian Planning Commission [2002] WATPAT 15
Missikos and Gonzalez v Western Australian Planning Commission [2001] WATPAT 9
Salotti and Anor v Western Australian Planning Commission [2004] WATPAT 79
Smith and Western Australian Planning Commission [2005] WASAT 166
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review by Ms Sandra Bastick arises from a decision of the Western Australian Planning Commission to refuse the subdivision of lot 778 Bull Creek Road, Rossmoyne, in the City of Canning into two survey-strata lots.
2 The review required an analysis of the relevant provisions of the Residential Design Codes of Western Australia 2002 (Codes), and various planning documents, together with submissions relating to examples of precedent and the overall merits of the proposal.
3 In its analysis the Tribunal could find no compelling planning reason or planning principle to set the provisions of the Codes to one side, and determined that the application for review should be dismissed and the decision of the respondent affirmed.
Introduction
4 The application for review by Ms Sandra Bastick (applicant) arises from the decision of the Western Australian Planning Commission (respondent) on 10 December 2004 to refuse the subdivision of lot 778 (No 58) Bull Creek Road, Rossmoyne (the subject land) into two survey-strata lots of 475 square metres and 482 square metres with common property of 2 square metres.
5 The refusal was based on the following reasons:
"1. The proposal does not satisfy the site area requirements for grouped dwelling subdivision pursuant to the provisions of the Residential Design Codes 2002 and the provisions of the Commission's Residential Subdivision Policy DC 2.2.
2. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
6 On 24 December 2004, a request for reconsideration of the decision was made in accordance with the provisions of the s 24(5) of the Town Planning and Development Act 1928 (WA) (the Act). The respondent, in a letter dated 18 April 2005, reiterated its previous decision to refuse the application, stating:
(Page 4)
- " … the Commission has concluded that its decision to refuse the application is soundly based … "
7 Later that year after various directions hearings, the Tribunal proceeded to determine the review on the papers.
8 The Tribunal declined an application by the respondent to re-open the argument in the light of Addvalue and Western Australian Planning Commission [2005] WASAT 335 published on 15 December 2005.
Subject land
9 The subject land is described as lot 778 (Canning Location 25) on Plan 7654 on Certificate of Title Volume 1482, Folio 942. It has a legal area on title of 959 square metres.
10 The site is located at the corner of Nicholas Street and Bull Creek Road with frontages of 36.1 metres and 13.08 metres respectively with an 8.53 metre truncation. For the purposes of subdivision and development, the area of the truncation (18 square metres) has been added; bringing the effective site area to 977 square metres.
11 According to the City of Canning, the site is generally level with an existing residence and residential gardens. There is access from both Nicholas Street and Bull Creek Road.
Legislative and non-legislative framework
12 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" with an R17.5 coding under the City of Canning Town Planning Scheme No 40 (TPS 40).
13 The matter is covered under Statement of Planning Policy No 1 – State Planning Framework Policy (SPP 1), which unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision-making on land use, subdivision and development in Western Australia. The policy has been formulated under s 5AA of the Act and as such, the Tribunal is required to have "due regard" to such policies under s 61(1)(a) of the Act.
14 The most relevant policies relied on by the parties under SPP 1 include:
(Page 5)
- • Statement of Planning Policy (3.1) Residential Design Codes 2002 – (Codes); and
• Policy No DC 2.2 Residential Subdivision (DC 2.2)
15 The Codes, which replace the Residential Planning Codes of 1991 (1991 Codes), provide a comprehensive basis for the control, through local government, of residential development throughout Western Australia.
16 Policy DC 2.2 outlines the Commission's policy requirements for the subdivision of land. Clause 3.2.1 provides that:
"Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land."
17 The applicant also relied in part on various Commission policies, planning bulletins, press reports on property trends and urban renewal, Ministerial statements and the Australian Bureau of Statistics publication "Australian Social Trends 2005".
Respondent's position
18 The position of the respondent is outlined in the response of the State Solicitor's Office, dated 31 May 2005 to the application for review. The response argues:
(a) Clause 3.1.3(A3)(iv) of the Codes provides that Grouped Dwellings in areas coded R17.5 shall use the minimum site area as permitted under Table 1 of the 1991 Codes for applications made prior to 31 December 2004.
(b) Table 1 of the 1991 Codes requires the average site area to be at least 500 square metres for Grouped Dwellings in areas coded R17.5. The average site area for the proposed subdivision at 488.5 square metres is below the requirement of Table 1.
(c) Even if the proposed subdivision had been applied for after 31 December 2004 under Table 1 of the Codes it would not have complied with the minimum or average site requirements. Table 1 of the Codes requires a minimum lot size of 500 square metres and an average site area of not less than 571 square metres for an R17.5 coding. The proposed subdivision contemplates a minimum lot size area of 475 square metres and an average site area of 488.5 square metres.
(Page 6)
- (d) Clause 3.2.3 of DC 2.2 permits a maximum variation of 5% to the minimum and average site area requirements if one or more other criteria are met. It states that the site area variations only apply to Grouped Dwellings on land not subject to the transition provisions under Acceptable Development Provisions 3.1.3(A3)(iv) or (v) on page 45 of the Codes.
(e) Approvals for subdivisions and developments within the vicinity of the subject land appear to have complied with the requirements that were in place at the relevant time.
(f) Approval of the proposed subdivision would constitute an undesirable precedent for the subdivision of surrounding lots which do not accord with the average site area requirements.
Applicant's position
19 The applicant's position is outlined in her witness statement dated 15 August 2005. She argues that:
(a) The application for subdivision was lodged in September 2004 before the 31 December 2004 deadline in order to take advantage of the transitional provisions of cl 3.1.3(A3)(iv) of the Codes.
(b) At no stage was the application for subdivision assessed on its planning merits; nor against the performance criteria within the Codes or the broader policy objectives and strategies of the Commission and the Government.
(c) The proposed subdivision fully complies with the Codes with a 5% variation applied, allowable at cl 3.1.3 and subclauses 3.1.3(A3)(iii) and 3.1.3(A3)(iv).
(d) The Codes were developed with the ability to have more flexibility in planning decisions with consideration to meeting performance criteria.
(e) The respondent has the legal capacity to approve applications that are of a lesser site area than both the minimum and the average area as long as specified performance criteria have been met. The respondent has a legal obligation to consider each application on its merits.
(f) Although DC 2.2 is a guide to decision-making, it should not be used exclusively. The proposed subdivision meets all the policy objectives of DC 2.2, the general requirements at 3.1 and a series
(Page 7)
- of other criteria designed to achieve a beneficial outcome for the community.
- (g) The application could not set a precedent as the period for applications under the transitional arrangements has ended.
(h) The assertion that the development would cause an undesirable precedent in the local area is invalid as there are many other precedents, predominantly on green title lots, where allowance has been made to parent lot size to enable subdivision.
(i) The proposed development accords with various high level State and City of Canning planning documents in either draft or final form; predominantly in terms of better utilisation of land, proximity to services, use and proximity to public transport, schools, hospitals and other facilities.
20 The position of the applicant is supported by Mr Ken Adam, a qualified architect and town planner, in his witness statement dated 15 August2005. He argues that:
(a) Table 1 of the 1991 Codes requires a parent lot of 1000 square metres for a Grouped Dwelling on land with an R17.5 coding. At 977 square metres, the subject lot results in a shortfall of 23 square metres or just 2.3%.
(b) Approval of the subdivision would require the exercise of discretion on the part of the respondent or this Tribunal.
(c) The respondent has the power to exercise its discretion on the planning merits of the application.
(d) It is beyond dispute that, except to the extent that cl 3.1.3(A3)(iv) may contradict directly any other provision of the Codes, all other provisions apply. The effect of cl 3.1.3(A3)(iv) is to substitute the relevant portion of Table 1 of the 1991 Codes for the corresponding portion of the Codes. All other provisions apply.
(e) The Objective and Performance Criteria of Element 1 of the Codes apply, including the performance criteria at cl 3.1.3 on page 45 of the Codes. This conclusion is supported by the Commission's "R Codes Advice Notes Volume 1" issued 6 June 2003 – R Codes Frequently Asked Questions (FAQ):
"Q43: If a minimum site area variation has been obtained under Acceptable Development Provisions 3.1.3 A3 iv on p.45 of the R-Codes, can a further 5% variation be
(Page 8)
- obtained under Performance Criterion 3.1.3 (i.e. is a variation to a variation possible under the R-Codes)?
- A. Yes, but only in the circumstances where the further variation proposed can meet the criteria set out in Performance Criterion 3.1.3.
It should be noted that the extent to which the WAPC will exercise its discretion in approving variations to lot sizes for single houses and grouped dwellings below the minimum site requirements (i.e. below the minimum and below the average size lots) prescribed in Table 1 of the R-Codes, or elsewhere in the R-Codes, is limited. These limitations are set out in Clause 3.2.3 of the WAPC policy DC 2.2: Residential Subdivision." (As written)
Mr Adam argues that the answer should have been stopped after the first sentence for reasons explained in par 34 to par 43 of his submissions.
- (f) The respondent has taken an excessively prescriptive approach to the interpretation of both the Codes and its policies at the expense of an approach founded on planning principles and the intensive planning merits of the proposed subdivision. In Smith and Western Australian Planning Commission [2005] WASAT 166 the Tribunal said (at [33]):
"As articulated in Marshall v WA Planning Commission (1985) 2 SR(WA) 170, the Design Codes do not of themselves govern the outcome of an application for subdivision."
21 In this case the applicant seeks a departure from the limitations contained in Table 1 of the Codes and brings to bear on the argument other provisions of the Codes and DC 2.2, together with the matters of precedent and the overall planning merits of the proposal.
Codes and DC 2.2
22 The Codes require all residential development to conform to their provisions and are formulated as follows:
(Page 9)
- (a) first, the aim or "Objective" of the design element is stated;
(b) second, a set of "Performance Criteria" is provided that must be satisfied if the objective is to be met; and
(c) third, a set of "Acceptable Development" provisions related to the performance criteria is established.
23 As stated under cl 1.1.2 of the Codes:
"The Acceptable Development provisions contained in the Codes provide a means by which development can be 'deemed to comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
24 In Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4 the operation of the Codes is expressed in this way (at [19]):
"As the Codes themselves make clear and as this Tribunal has observed on other occasions, the starting point is to have regard to the objective and then the performance criteria. Acceptable development represents examples which of themselves are deemed to meet the relevant performance criteria."
25 In this matter the applicant chose firstly the acceptable development path in order to take advantage of a special transition provision cl 3.1.3(A3)(iv) which states:
"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 December 2004."
26 Table 1 of the 1991 Codes provides for a minimum average site area of 500 square metres compared to Table 1 of the Codes which provides for a minimum site area of 500 square metres and a minimum average of 571 square metres for areas coded R17.5.
27 In her witness statement of 16 August 2005, Ms Lindsay Baxter, a qualified town planner, explains for the respondent:
"8. The transitional provision was inserted into the 2002 [Codes] so that lots greater than 1000 square metres
(Page 10)
- but less than 1142 square metres would not be disadvantaged by the changes to the lot size requirements of the 2002 [Codes] and would still be capable of being developed for two grouped dwellings."
28 It is clear to the Tribunal that the intent of the Codes is to move to a larger lot size requirement for areas coded R17.5 with a minimum average of 571 square metres, than that contemplated in the 1991 Codes with a minimum site area of 500 square metres only. It is also clear that as the proposed subdivision contemplates a minimum lot size area of 475 square metres, and an average site area of 488.5 square metres, that it does not meet the provisions of the 1991 Codes. This point is acknowledged by Mr Adam on behalf of the applicant.
29 However, in his submissions, Mr Adam argues that the performance criteria outlined in cl 3.1.3 of the Codes (Variation to the minimum site area required) also apply to the present application. Clause 3.1.3 states:
"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 5 per cent less in area than that specified on Table 1; and
• facilitate the protection of an environmental or heritage feature; or
• facilitate the development of lots with separate and sufficient frontage to more than one public street; or
• overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature; or
• allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or
(Page 11)
- • achieve specific objectives of the local government Scheme and, where applicable, the Local Planning Strategy."
30 Mr Adam takes comfort from the answer given to question 43 of the FAQ document outlined above. He argues that the answer should have stopped after the first paragraph and that the second paragraph has created some confusion. In contrast, the response to the witness statements of the applicant and Mr Adam for the respondent and dated 29 August 2005 argues:
"15. The Respondent is of the view that the first paragraph of the response to the FAQ is incorrect. The Respondent refers to the second paragraph of the response to the FAQ which makes clear reference to clause 3.2.3 of DC 2.2 which sets out the correct position. DC 2.2 is a gazetted policy that is consistent with the terms and underlying purpose of the transitional provision." (As written)
31 What Mr Adam is seeking, is to apply the variation provision of cl 3.1.3 of the Codes to the minimum site area requirements of the 1991 Codes in order to achieve a concession on a concession. In other words, he argues that the 5% variation under the performance criteria of cl 3.1.3 should apply to the 500 square metre minimum site area of the 1991 Codes. If so, this would have the effect of reducing the minimum site area to 475 square metres or 950 square metres for two lots. As the effective site area of the subject site is 977 square metres, it would then comply.
32 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 cl 3.1.3(A3)(iv) should be advantaged further by a second concession in order to advance the requirements of the replaced 1991 Codes.
33 As explained in Salotti and Anor v Western Australian Planning Commission [2004] WATPAT 79 (at [18] – [19]):
"If there is a departure however or difference from what appears under the heading of Acceptable Development, one cannot cure such defect by seeking to rely upon variations which relate to Performance Criteria. Performance Criteria in all operable
(Page 12)
- respects operate independently from that which appears under Acceptable Development.
In [the Tribunal's] view, it is plainly not open to construe a deemed-to-comply example on the basis that one could incorporate a variation which appears under the heading "Performance Criteria"."
34 This argument is further advanced by the provisions of cl 3.2.3 of DC 2.2 which states:
"Because the purpose of the transition provision is to retain the same development rights that existed under the 1991 Codes, and it was not possible to vary the average lot size requirement for Grouped Dwellings under the 1991 Codes, there is no scope for any variation to the average lot size for Grouped Dwellings on land subject to the transition provisions under Acceptable Development Provisions 3.1.3A3iv or v on p 45 of the R-Codes."
35 In the view of the Tribunal, there is no scope for variation of the minimum site area of the 1991 Codes under the variation provisions of the Codes.
Precedent
36 In its reasons for refusal, the respondent argues that approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
37 In contrast, the applicant argues that a precedent could not be set, as the period for applications under the transitional arrangements had ended on 31 December 2004. However, a selection of developments which appeared to have been granted variation concessions were detailed in Ms Bastick's witness statement at par 27 to par 30.
38 In response, the respondent summarised its findings into each of the selected developments and concluded that they appeared to comply with the requirements that were in place at the relevant time.
39 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 1991 Codes minimum and average site areas. Some of the selected developments were covered by those provisions.
(Page 13)
40 With the introduction of the Codes and a revision of DC 2.2 in July 2003, a 5% variation was introduced under the provisions of cl 3.2.3. However, this variation only applies to land not subject to the variation provisions under acceptable development provisions, cl 3.1.3(A3)(iv) or (v) on page 45 of the Codes.
41 In its response to the applicant's further submissions in response dated 5 September 2005, the respondent argues:
"If approval is given to the proposed subdivision, the subject land would be at a density commensurate with a R20 coding which is a departure from the applicable coding under TPS 40 and therefore inconsistent with the community expectations for the area."
- This, it argues, would create an undesirable precedent.
42 The Tribunal notes all of these submissions but, as it has determined on many occasions, 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.
Planning merits of the proposal
43 The applicant argues that the proposed development supports the broad policy objectives of government to achieve a more consolidated and sustainable City as outlined in the draft Network City Plan. She argues that the proposal caters for the needs of all age groups in terms of locally available community services, facilities and infrastructure.
44 These arguments are supported by Mr Adam, who quite properly points out 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 Codes.
45 This approach is explained in Kyrwood v Western Australian Planning Commission[2002] WATPAT 15 (at [9]):
"The approach of the Tribunal and the Commission to an application for variation is to take the R Coding as a starting point and not as the end of the deliberation. The duty of all planning authorities is to make a proper planning decision even if this is in conflict with the requirements of Table 1 … "
(Page 14)
46 A critical point that must be made is that one cannot divorce the Codes from the planning merits of a proposal since it is largely the Codes, and the provisions of the earlier 1991 Codes, that have given rise to the numerous subdivisions and Grouped Housing developments in the locality as shown on attachment SB 2 to the applicant's witness statement. Clearly these changes to the built form, which have been comprehensively explained in Mr Adams' witness statement under "The Locality: its Character and Amenity", are precisely in line with achieving a more consolidated and sustainable City.
47 A point at issue is how far do you erode the site area requirements of a particular "R" coding in order to achieve the applicant's objective of subdivision and still maintain the integrity of the Code. In this case, an allowable concession of 18 square metres was granted for a corner lot under cl 3.1.2(A2) of the Codes followed by a concession under the Codes provision cl 3.1.3(A3)(iv). A further concession under the variation provision of cl 3.1.3 was then sought which, as argued by the respondent would, if approved, create lots at a density of an R20 coding. This, it is argued, would be a departure from the intent of the R17.5 coding under TPS 40.
48 In the matter of Missikos and Gonzalez v Western Australian Planning Commission [2001] WATPAT 9 in the City of Stirling a cautionary note was sounded in assessing the Codes as opposed to the merits of a proposal (at [25]):
"Whilst we do not suggest that a departure from the minimum or average lot sizes prescribed by the R Codes for the purpose of a subdivision application could not be made by the Commission (and thus the Tribunal on appeal) in appropriate circumstances, we are of the view that a departure from the requirements for the area under the relevant Town Planning Scheme should only be made where some compelling planning reason exists. There is otherwise the potential for existing planning controls to be gradually subverted without the benefit of the consultative processes necessary to bring about scheme amendment."
49 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.
(Page 15)
50 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 countervailing 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.
Orders
51 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
2. The decision of the respondent is affirmed.
I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
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