BINGWA and WESTERN AUSTRALIAN PLANNING COMMISSION

[2007] WASAT 204

BINGWA and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 204

Last Update :20/08/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 204
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:455/2006	Heard:	17 MAY 2007
Coram:	MR J JORDAN (MEMBER)	Delivered:	15/08/2007
No Pages:	16	Judgment Part:	1 of 1
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BINGWA and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 204 MEMBER : MR J JORDAN (MEMBER) HEARD : 17 MAY 2007 DELIVERED : 15 AUGUST 2007 FILE NO/S : DR 455 of 2006 BETWEEN : DORCAS BINGWA

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning ­ Subdivision refusal ­ Corner lot ­ Town planning scheme incorporates Residential Design Codes of Western Australia (2002) ­ R20 density code ­ Average and minimum lot size requirements ­ Residential zone objectives ­ Flexibility to vary lot sizes ­ Lot sizes to be below standard ­ Resultant development and character of the locality ­ Variations to local planning scheme under s 138 of Planning and Development Act 2005 (WA) ­ Precedent ­ Personal hardship

(Page 2)

Legislation:

City of South Perth Town Planning Scheme No 6, cl 1.6, cl 1.6(2), cl 4.1(3), cl 4.1(4), cl 4.3(1), cl 4.3(5), cl 4.4, Part III, Part IV
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 135, s 135(1), s 138, s 138(2), s 138(3), s 138(3)(c)(ii), s 241(3), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.1.3
Strata Titles Act 1985 (WA), s 31

Result:

Category: B

Representation:

Counsel:

Applicant : Mr P Webb (Acting as Agent)
Respondent : Mr J Bouwhuis (Acting as Agent)

Solicitors:

Applicant : Peter Webb and Associates (Town Planners)
Respondent : Western Australian Planning Commission

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

Nicholls and Western Australian Planning Commission [2005] WASAT 40

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mrs Dorcas Bingwa owns Lot 104 on the corner of Unwin Crescent and Redmond Street, Salter Point. Mrs Bingwa applied to the Western Australian Planning Commission for approval to subdivide Lot 104 into two lots, each with a developable area of about 388 square metres. Mrs Bingwa planned to demolish the existing house on the land to enable two dwellings to be built.

2 The Commission refused the application because the proposed lots would be below the minimum and average lot sizes prescribed for the residential R20 coding applicable to the land. The Commission also considered that an approval would set an undesirable precedent for the further subdivision of surrounding lots.

3 Mrs Bingwa said the proposed subdivision should be allowed as it would be consistent with the general intent of the planning objectives of the City of South Perth Town Planning SchemeNo 6. Mrs Bingwa also submitted that the subdivision would also assist her in overcoming hardship she was facing.

4 The Tribunal found that the variation of the proposed lots from the prescribed minimum lot sizes for the locality was too significant to be consistent with orderly and proper planning. Mrs Bingwa's personal situation was appreciated, but the planning circumstances were found to be determinative of the matter. The application for review was dismissed.

Introduction

5 These proceedings involve an application by Mrs Dorcas Bingwa (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (Commission, respondent) to refuse the proposed subdivision of Lot 104 (No 2) Unwin Crescent, on the corner of Redmond Street Salter Point (the site) (Lot 104).

Site and locality

6 The site has a frontage to Unwin Crescent of 10.42 metres at the southern end and a frontage of 34.22 metres to Redmond Street at the western side. The corner of the lot is an 8.54 metre truncation at the junction of the two streets. The total area is 759 square metres and if the area of the truncation is included, the total area for development purposes

(Page 4)

is 777 square metres. There is currently a single storey brick and tile single house on the site extending across what would be the boundary between the two proposed lots.

7 The locality east of Redmond Street comprises an original subdivision pattern of lots similar in size to the site. Some lots have been subdivided, including in the street block in which the site is located, and the lot immediately adjoining the northern boundary has been developed with two grouped dwellings now on survey strata lots. Immediately to the west over Redmond Street is the site of Aquinas College and fronting Redmond Street there is what appears to be group dwellings that have some association with the school.

8 The locality can be characterised as one where older houses are being replaced by modern homes, many two storey dwellings and particularly in Unwin Crescent immediately east of the site and opposite.

Planning framework

9 The site is zoned Urban under the Metropolitan Region Scheme (MRS). The City of South Perth (City) has zoned the site Residential with a density coding of R20 in its Town Planning Scheme No 6 (TPS 6). TPS 6 was gazetted on 29 April 2003. Lots to the north, east and south are also Residential R20 while the land to the west across Redmond Street is zoned Institution.

10 Clause 4.1(3) of TPS 6 provides that, unless otherwise specified, the development of land for any residential purpose shall conform to the Residential Design Codes.

11 The residential design codes referred to in TPS 6 are the Residential Design Codes of Western Australia 2002 (Codes). Table 1 of the Codes, "General Site Requirements", specifies standards for residential development under specific density codings. For R20 coded land Table 1 specifies:

(a) a minimum lot size of 440 square metres and average of 500 square metres for single houses;

(b) a minimum frontage of 10 metres; and

(c) a minimum setback from the primary street of 6 metres.

12 Clause 3.1.3 of the Codes provides that approval may be granted for a lot of a lesser area than specified in Table 1 provided that the proposed (Page 5)

variation is no more than 5% less than the area specified and that one of five other criteria is satisfied. One of the criteria is that the proposed subdivision would "facilitate the development of lots with separate and sufficient frontage to more than one public street".

13 The Commission has adopted Policy No DC2.2 "Residential Subdivision (DC2.2)". This sets out the Commission's policy requirements for the subdivision of land into residential lots. Clause 3.2.1 of DC2.2 states that:

"Generally, the minimum lot size and frontage requirement of the relevant code will form the basis for the subdivision of residential land ..."

14 Clause 3.2.3 of DC2.2 is concerned with applications proposing variations to lot sizes below the minimum and below the average lot size prescribed in Table 1 of the Codes. Criteria to be met relative to the proposed subdivision are:

"• the minimum lot size variation only applies to one lot in the subdivision;

• the variation reduces the area of that one lot by no more than 5% of the minimum area specified in Table 1 or elsewhere in the R-Codes;

• the variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the R-Codes; and

• the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the Commission forms the opinion that it will have a particularly beneficial outcome for the community."

15 Section 135(1) of the PD Actprovides that a person is not to subdivide any lot without the approval of the Commission. In respect of the approval of the Commission, s 138(2) further provides that:

"Subject to subsection (3), in giving its approval under s 135 or s 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under

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consideration and is not to give an approval that conflicts with the provisions of the local planning scheme."

16 Subsection 138(3) sets out a list of circumstances when the Commission may give an approval under s 135 which conflicts with the provisions of a local planning scheme. The respondent submitted that none of the circumstances were applicable to this matter. The applicant identified one circumstance that was relevant and this was s 138(3)(c)(ii), which reads that an approval in conflict the local planning scheme can be given if:

"(c) in the opinion of the Commission –
(i) …

(ii) the approval is consistent with the general intent of the local planning scheme."

17 The general objectives of TPS 6 are set out in cl 1.6(2). Those relevant to this matter identified by the applicant are set out below in the discussion on the issues.

18 The City has adopted local planning policy P370_T "General Design Guidelines for Residential Development" (policy P370_T) applicable to all residential development.

Proposed subdivision

19 The applicant applied to subdivide Lot 104 into two lots. Lot 1 would be at the northern end of the site with an area of 388.2 square metres and a frontage of 18.67 metres to Redmond Street. Lot 2 would be on the corner with an area of 369.9 square metres so that, together with the area of the truncation, the development area would be about 389 square metres. The frontage of Lot 2 to Unwin Crescent would be 10.42 metres, the truncation 8.54 metres and the Redmond Street frontage 15.55 metres.

20 A plan filed with the application shows the existing house which straddled the proposed boundary demolished and replaced with a two-storey single dwelling on each proposed lot.

The Refusal

21 The respondent refused the application for the reasons:

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"1. The proposed subdivision does not comply with the Commission's policy DC2.2 by reasons that the proposed lots are below the minimum and average lot size prescribed under the Residential Design Codes of Western Australia (2002) applying to the land.

2. Approval to the subdivision would set an undesirable precedent for further subdivision of surrounding lots."

The Issues

22 The following issues arise for determination in this review:

1) Whether allowing lots not complying with the average lot size requirements of the R20 coding would compromise the principles of orderly and proper planning?

2) The weight to be given to precedent as a consideration.

3) The weight to be afforded the claims of hardship made by the applicant.

Whether allowing lots not complying with the average lot size requirements of the R20 coding would compromise the principles of orderly and proper planning?

23 The Codes have been incorporated into TPS 6 by reference and the site is coded R20. The proposed subdivision would result in lots less than the minimum and average lot sizes required for a single dwelling on R20 coded land under Table 1 of the Codes. The proposed lots would have a developable area of 388 square metres and 389 square metres, respectively. This results in variations of close to 12% below the minimum lot size and 22% below the average lot size prescribed by Table 1. The creation of the two proposed lots would therefore require a departure from the lot size standards.

24 The respondent's DC2.2 at cl 3.2.3, set out under “planning framework”, above, provides for relaxation of lot sizes. Mr Jason Bouwhuis, who appeared for and gave evidence on behalf of the respondent, said the subdivision would not satisfy the requirements for relaxation of the standards under cl 3.2.3 of DC2.2 because both lots, not just one, would be below the minimum standard, and the minimum and average lot areas required would be nearly 12% and 22% respectively below the required standard, far in excess of the 5% variation provided for

(Page 8)

in cl 3.2.3. Mr Bouwhuis said the policy was soundly based and consistently applied.

25 Mr Peter Webb, a planning consultant, appeared for and gave evidence on behalf of the applicant. When cross-examined, his response was that the applicant was not relying on the discretion available in DC2.2 to support the proposed subdivision. Mr Webb said the applicant was relying on the proposal being consistent with the planning objectives of TPS 6 and therefore consistent with the principles of orderly and proper planning.

26 Mr Bouwhuis said that TPS 6 required the subdivision to satisfy the lot size requirements of the Codes. Clause 3.1.3 of the Codes also provided for a 5% variation of the minimum site area requirements but, as has been identified, the proposed lots were too small and greatly exceeded this minimum size variation. It was the submission of Mr Bouwhuis that, in addition to DC2.2, the proposed subdivision was also in conflict with TPS 6 and should therefore be refused.

27 Mr Webb gave evidence that the proposed subdivision would satisfy one of the criteria for variation listed under cl 3.1.3 of the Codes and that was to facilitate the development of lots with separate and sufficient frontage to more than one street. This, he said, was relevant to his submission that the proposed subdivision was consistent with orderly and proper planning because it would satisfy relevant general planning objectives, and therefore the intent, of TPS 6.

28 Both parties made reference to s 138 of the PD Act. Mr Bouwhuis referred to s 138(2) which provided that subdivision could not be approved if it was in conflict with the provisions of local planning scheme. He said the subdivision was in conflict with TPS 6 and so could not be approved. Section 138(3) provided for approval of a subdivision in conflict with a local planning scheme if one of a list of criteria was satisfied. In his opinion none of the listed criteria was satisfied and so an approval could not be granted.

29 Mr Webb disagreed. He cited s 138(3)(c)(ii) which provided that an approval in conflict with the local planning scheme could be granted if, in the opinion of the Commission or the Tribunal on review, "the approval is consistent with the general intent of the local planning scheme." Mr Webb said that, because the proposed subdivision would be consistent with the general intent of the local planning scheme such an opinion could and should be formed and an approval be granted for the subdivision.

(Page 9)

30 Mr Webb referred to the objectives for TPS 6 set out at cl 1.6, specifically:

"(a) maintain the City's predominant residential character and amenity;

…

(c) facilitate a diversity of dwelling styles and densities in appropriate locations on the basis of achieving performance-based objectives which retain the desired streetscape character and, in the older areas of the district, the existing built form character;

…

(f) safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development."

31 It was Mr Webb's evidence that the character of the locality was changing as older houses were replaced with modern, mainly two-storey houses. Photographs were provided of the houses extending along Unwin Crescent as examples of such development. In his submission, the new lots would facilitate the removal of an old house and the development of new dwellings consistent with the emerging character. New houses on the lots with the setbacks and open space as required by the Codes would maintain the residential character and amenity.

32 Mr Webb referred to the cadastral plan of the locality and his evidence was that the frontage of the new lots would be consistent with those of others in the locality. He referred also to the architect’s sketches of potential houses on the lots at the front setback as required by the Codes and consistent with others in the Redmond Street and Unwin Crescent. Mr Webb said the desired streetscape would be retained as required by the planning objectives.

33 On lot size, Mr Webb referred to Lot 103 adjoining to the north, which comprised two survey strata lots similar in size to those proposed by the applicant. He also referred to lots on the cadastral plan of similar size where subdivision had occurred, some of which were corner lots, particularly in the street block of Lot 104. Mr Webb said that, as with these lots, the proposed subdivision would assist in providing a diversity of densities.

(Page 10)

34 Mr Webb acknowledged that the variation in lot size was not minor, but the consequences of the development that would result from subdivision were either minor or mostly positive. That is because the resultant development would satisfy the objectives of TPS 6 that he had identified. The subdivision was, in his submission, consistent with the general intent of TPS 6 and it therefore satisfied the requirement of s 138(3)(c)(ii) of the list of exceptions where a subdivision could be allowed in conflict with the local planning scheme.

35 Mr Webb also referred to the objective in the City's policy P370_T which states:

"(a) to preserve or enhance streetscape character, and to promote strong design compatibility between existing and proposed residential buildings."

36 He restated the reasons advanced in respect of the general objectives of TPS 6, saying that the lots that would be created and the development of them would fulfil this principal policy objective and therefore the City’s planning objectives.

37 Mr Bouwhuis maintained that the subdivision would undermine the planning objectives of preserving the existing amenity and character of the precinct. This, he said, was due to the lot sizes being markedly smaller than the prevailing lot size and the planning objective of maintaining that lot size by coding the area R20. Mr Bouwhuis was of the opinion that the small square-shaped lots would result in a different character than the existing and desired rectangular shape lots and the associated open space around the houses.

Comment

38 Part IV of TPS 6 has the heading "Development Requirements for Residential Uses". Clause 4.1(3) states:

"Unless otherwise provided in the scheme, the development of land for any residential purposes dealt with by the residential design codes shall conform to the provisions of those codes."

39 The applicant has argued that the proposal can be excused from this requirement because the subdivision will result in lots that can be developed with houses consistent with the intent of TPS 6. The subdivision therefore satisfies s 138(3)(c)(ii) of the PD Act and can be allowed.

(Page 11)

40 The Tribunal accepts that houses could be designed for the proposed lots to be consistent in appearance with other new houses built nearby in recent years and would be on lots with frontages in excess of the minimum requirement for the R20 coding. The Tribunal has formed the view, however, that all of the general objectives highlighted from cl 1.6 of TPS 6 can be achieved without subdivision and therefore without contravening the requirements of the Codes. If subdivision does not occur, retaining an existing house or redeveloping on the larger lot will still be consistent with the objectives of TPS 6. It is therefore a matter of whether allowing the subdivision would be consistent with orderly and proper planning.

41 Clause 4.1(3) of TPS 6 refers to variations from the Codes being otherwise provided in the Scheme. Provision for variations from the Codes can be found, for example, at cl 4.3 “Special Application of Residential Design Codes – Variations” and cl 4.4 “Corner lot subdivision in Certain Circumstances”. The parties quite properly did not refer to these clauses as they are not applicable to the proposed subdivision. The Tribunal mentions these different clauses as illustrations that TPS 6 includes flexibility to accommodate subdivision and development that varies from the standards in the Codes. It is noted, however, that the proposed subdivision is beyond the extent of flexibility contemplated in the variations and departures specifically provided for by the City in TPS 6.

42 The locality has examples of subdivision to lot sizes similar to those proposed and grouped dwellings at a density similar to that which would result. Examination of the lot size pattern reveals, however, that most lots, including corner lots, are consistent with the density requirements of TPS 6.

43 The frontage of the proposed lots complies with the R20 coding standard, but the Tribunal considers that the amenity, character, and orderly and proper planning of the locality includes all aspects of the planning controls, including density, in place in TPS 6. The Tribunal does not accept that flexibility extends to varying lot sizes to an extent that would amount to effectively abandoning a standard developed through the proper processes of adopting a local planning scheme.

44 The proposed subdivision is therefore not supported as the Tribunal is not persuaded that it would be consistent with orderly and proper planning to allow such a significant departure from the density standard of TPS 6.

(Page 12)

The weight to be given to precedent as a consideration

45 Precedent was raised as an issue in two respects. One was whether the development on Lot 103 adjoining to the north served as a precedent for the development of the site. The other was whether an approval of the subdivision would serve as a precedent for other land owners in the locality to follow.

46 Lot 103 had two grouped dwellings approved in 1968. A survey strata for each dwelling has been approved more recently pursuant to s 31 of the Strata Titles Act 1985 (WA). The existence of this development is not considered to constitute a precedent for development of a similar type. This is because this lawful development predates the present density controls and so has the benefit of the non-conforming use provisions of Part III of TPS 6. The redevelopment of existing development greater than the prescribed density coding is also provided for at cl 4.3(1)(a) of TPS 6 as is development on lots less than the minimum required at cl 4.3(1)(b).

47 As submitted by the applicant, the development on Lot 103 is relevant as an element in the streetscape of Redmond Street. It is, however, just one element and, as discussed above, does not define the streetscape.

48 The second precedent concern raised by the respondent was that an approval would serve as an undesirable precedent for the subdivision of other lots in the locality in conflict with the coding of those lots under TPS 6. Mr Bouwhuis referred specifically to three other corner lots along Redmond Street of similar size to Lot 104.

49 It was Mr Webb’s submission that the subdivision would not set a precedent. In his view, no other site would have circumstances identical with all of the circumstances of this subdivision, such as the corner location, frontage and the cultural aspects of the applicant’s situation.

50 In Nicholls and Western Australian Planning Commission[2005] WASAT 40 at [71]-[77] Senior Member Parry examined precedent as a consideration in determining a planning application. In summary, it was adopted from the authorities that precedent was a relevant consideration in a planning assessment when:

1. The proposed development or subdivision is not in itself unobjectionable; and

(Page 13)

2. There is more than a mere chance or possibility that there may be later undistinguishable applications.

51 The Tribunal has formed the view that the lot sizes proposed are objectionable, as set out above, because of the departure from the standards of TPS 6. On lot size, it was clear from the lot size pattern in the locality, including corner lots, that there is more than a mere chance of later undistinguishable applications.

52 Mr Webb relied in part on the cultural aspects of the applicant’s situation to distinguish the proposed subdivision and so to discount precedent as a consideration. The Tribunal considers a particular personal circumstance would have to be extraordinary to be considered as the critical element in distinguishing one subdivision proposal from others of similar lot size and identical coding. On this point the Tribunal would make the comment that it is difficult to give differing weight to claims arising from customs of different cultures to distinguish between similar forms of subdivision. It is considered difficult, for the purposes of giving weight to precedent, to compare cultural issues with, for example, marital difficulties, ill health or financial concerns, all of which are argued from time to time as a basis for making a particular application distinguishable from any other. Such claims are more relevant to the consideration of hardship, which is considered further below, than to disposing of precedent as a consideration.

53 The Tribunal has formed the view that the proposed subdivision is objectionably relevant to the planning framework and that there is more than a mere chance or possibility that there may be later undistinguishable applications. The Tribunal therefore considers that precedent is a relevant consideration in this matter and the precedent that would be set is considered inconsistent with the orderly planning of the locality.

The weight to be afforded the claims of hardship made by the applicant

54 Section 241(3) of the PD Act states:

“In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.”

(Page 14)

55 The applicant gave evidence on her own behalf. Mrs Bingwa explained that she was a member of the Shona tribe of Zimbabwe. She and her husband purchased the site in the year 2000. Mrs Bingwa is now a widow.

56 Mrs Bingwa does not have the means to demolish the ageing house on her site and to rebuild. She therefore proposed the subdivision so that an adult son could acquire one of the lots and assist her with the development of modern houses on the lots. She believed her son would keep his house to stay close to support his mother consistent with their culture. The subdivision would therefore serve the purposes of fulfilling her late husband’s wishes, providing the means of building herself suitable accommodation and having family nearby to provide assistance to her in her retirement.

57 Mrs Bingwa explained that as part of her culture it was not allowed for a widow or surviving family member to sell or otherwise dispose of inherited lands and she explained the reasons why. The matter is causing her considerable anxiety. It was her submission that if the subdivision were not allowed it would cause her considerable personal as well as financial hardship.

58 The applicant made only oral submissions in support of her witness statement. The statement did not include any written material to support her submission on the cultural issues or her medical situation, but it must be said that Mrs Bingwa presented as a credible witness.

59 Under s241(3) the Tribunal can have regard to claims of hardship if it is of the opinion that such regard will not affect the application of sound planning principles. In this instance the Tribunal has considered the planning merits of this matter and has formed the view that to create lots of the size proposed on R20 coded land in this locality would be inconsistent with the application of sound planning principles. It has therefore been concluded that, while Mrs Bingwa’s personal circumstances are understood, they are not of themselves to be afforded sufficient weight to be determinative of this matter.

Conclusion

60 Proposed in this matter is a subdivision that would create lots some 12% below the minimum requirement and 22% below the average requirement for R20 coded residential zoned land. The applicant has argued that this could be allowed because the resultant development would be consistent with the general intention of TPS 6 as expressed in

(Page 15)

the scheme objectives. The houses that would result from the subdivision could be compatible with the houses now replacing older houses in the locality and on lots of similar frontage. On lot area, the applicant pointed to lots, including on two corners in the street block concerned that have been subdivided in a similar manner to that proposed. The cadastral plan shows other examples in the locality. Particular mention was also made of the effect on the streetscape of the development on the two survey strata lots adjoining the northern boundary of the site.

61 It was argued on behalf of the applicant that, as the resultant development would be consistent with aspects of the general intent of TPS 6 as expressed in the planning objectives, the subdivision would fulfil the criterion at s 138(3)(c)(ii) of the PD Act and so could be approved even though in conflict with the lot size requirement of TPS 6.

62 TPS 6 provides standards for the development of residential land. These are mostly to be found in the Codes incorporated into TPS 6 by reference, but also in clauses, some of which provide variations to the Codes, directed particularly to residential development.

63 TPS 6, the Codes and the respondent's policy DC 2.2 provide a degree of flexibility to allow variation to the standards prescribed in the Codes, including for, relevantly, lot size and corner lots. In this instance the proposed lots would be significantly beyond the degree of flexibility provided for. It is the view of the Tribunal that flexibility does not extend to a variation in standards that would amount to effectively ignoring standards that have been developed through the processes of preparing and adopting a local planning scheme.

64 Elements of the proposed subdivision, including a corner location and the extended street frontage that goes with such a location, can be argued to distinguish the site from many neighbouring lots. The Tribunal has found, however, that this is off set by the existence of unsubdivided corner lots in the locality and other lots of wider lot frontage.

65 The Tribunal is of the view that density is an important element in the character of the locality and the City has decided that R20 is the appropriate density for the locality. In the view of the Tribunal there is more than the mere possibility that other landowners in the vicinity would be able to look to any approval as a precedent they might be able to follow. The Tribunal has formed the view that in this instance precedent is relevant consideration and in the circumstances the precedent that

(Page 16)

would set would not be consistent with the orderly and proper planning of the locality.

66 The applicant made submission to the Tribunal asking that the subdivision be allowed because her personal circumstances were such that a refusal would cause her financial and personal hardship. Under s 241(3) of the PD Act the Tribunal can have regard to claims of hardship if of the opinion that such regard would not affect the application of sound town planning principles. The Tribunal has formed the view that the personal circumstances of the applicant cannot be determinative of the matter, because the departure of the proposed subdivision from the lot size provisions of TPS 6 would be inconsistent with sound planning principles in this instance.

67 The Tribunal has therefore decided to refuse the application for review and to affirm the decision of the respondent.

Orders

1. The application for review of the refusal of the proposed subdivision by the Western Australian Planning Commission is dismissed.

2. The decision of the Western Australian Planning Commission is affirmed.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J JORDAN, MEMBER