Bormolini and Western Australian Planning Commission
[2014] WASAT 121
•19 SEPTEMBER 2014
BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 121
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 121 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:304/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 19/09/14 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Tribunal's determination affirmed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW JOHN BORMOLINI WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse subdivision approval for three lot subdivision of Residential zoned land Proposed lots 8% 12.4% below minimum site area and 22.24% below average site area prescribed in Table 1 of State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 for residential density code applicable to site for development purposes Whether Tribunal erred in law in determining that minimum and average site areas prescribed by Codes for development purposes is relevant to planning assessment of subdivision application Whether Tribunal erred in law in application of planning policy that lots of a lesser size or frontage than prescribed by Codes in respect of residential density coding of site for development purposes will not generally be approved Whether Tribunal erred in law in determining that approval of subdivision would create adverse planning precedent |
Legislation: | City of Canning Town Planning Scheme No 40, cl 1.11.3, cl 5.1.4.6, cl 5.2(a), cl 5.3.1, cl 5.4.1.2, cl 5.4.1.4, Pt V Planning and Development Act 2005 (WA), s 4(1), s 138(2), s 241(1), s 241(1)(a), s 244, s 251(1), Pt 14 Shire of Busselton Town Planning Scheme No 20, cl 6(4) State Administrative Tribunal Act 2004 (WA), s 3(1) State Planning Policy 3.1 Residential Design Codes of Western Australia 2013, cl 5.1.1, cl 5.1.1 P1.2, cl 5.1.1 C1.3, cl 5.1.1 C1.4 |
Case References: | Bormolini and Western Australian Planning Commission [2014] WASAT 88 Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68 Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 SinAusBel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67 Thomas and Town of Cambridge [2013] WASAT 206 WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 |
Orders | On the application before Deputy President, Judge Parry on 19 September 2014, it is ordered that:,1. The application for review by a judicial member is dismissed.,2. The determination of the Tribunal made on 15 July 2014 in DR 406 of 2013 is affirmed. |
Summary | Mr Matthew Bormolini sought review by a judicial member upon a matter involving a question of law of a determination made by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the Western Australian Planning Commission to refuse subdivision approval for a three lot subdivision of Residential zoned land. The proposed lots were 8% 12.4% below the minimum site area and 22.24% below the average site area prescribed in Table 1 of State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 (Codes) in respect of the residential density code which applied to the site for development purposes. The Tribunal determined that the minimum and average site areas prescribed by the Codes for development purposes is relevant to the planning assessment of the subdivision application and that, in the circumstances of the case, the subdivision application should be refused because of the residential density contemplated by the subdivision, the absence of a cogent reason to depart from the planning policy that lots of a lesser size or frontage than prescribed by the relevant residential density code for development purposes should not generally be approved, and the creation of an adverse planning precedent if subdivision approval were granted.,The judicial member determined that the Tribunal did not err in law in any of the 10 respects alleged by Mr Bormolini. In particular, the judicial member held that the Tribunal correctly determined that the minimum and average site areas prescribed by the Codes for development purposes is relevant to the planning assessment of whether to grant subdivision approval. Although, under Western Australian planning law, 'development' does not include 'subdivision', and consequently the creation of an allotment by subdivision that is smaller than the minimum and average site areas prescribed in the Codes for development purposes is not precluded as a matter of law, there is, as a matter of orderly and proper planning, a close and fundamental connection between subdivision and development and, in particular, between residential subdivision and residential development. As a matter of orderly and proper planning and having 'due regard' to the provisions of the relevant local planning scheme which requires, as is typically the case, development for any of the residential purposes dealt with by the Codes to conform to the provisions of the Codes and which identifies the residential density code applicable to the land, in the exercise of planning discretion the Western Australian Planning Commission (and the Tribunal on review) will not generally approve the creation by subdivision of an allotment of a lesser size than the minimum and average site areas prescribed by the Codes for development purposes on the allotment.,The judicial member also determined that the Tribunal correctly and properly considered whether there is a cogent reason why this planning policy should not be applied in the particular circumstances of the case.,Finally, the judicial member determined that the Tribunal did not err in law in finding that approval of the proposed subdivision would set an adverse planning precedent.,The Tribunal's determination was therefore affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 121 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 SEPTEMBER 2014 FILE NO/S : DR 304 of 2014 BETWEEN : MATTHEW JOHN BORMOLINI
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Tribunal affirmed decision to refuse subdivision approval for three lot subdivision of Residential zoned land Proposed lots 8% 12.4% below minimum site area and 22.24% below average site area prescribed in Table 1 of State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 for residential density code applicable to site for development purposes Whether Tribunal erred in law in determining that minimum and average site areas prescribed by Codes for development purposes is relevant to planning assessment of subdivision application Whether Tribunal erred in law in application of planning policy that lots of a lesser size or frontage than prescribed by Codes in respect of residential density coding of site for development purposes will not generally be approved Whether Tribunal erred in law in determining that approval of subdivision would create adverse planning precedent
Legislation:
City of Canning Town Planning Scheme No 40, cl 1.11.3, cl 5.1.4.6, cl 5.2(a), cl 5.3.1, cl 5.4.1.2, cl 5.4.1.4, Pt V
Planning and Development Act 2005 (WA), s 4(1), s 138(2), s 241(1), s 241(1)(a), s 244, s 251(1), Pt 14
Shire of Busselton Town Planning Scheme No 20, cl 6(4)
State Administrative Tribunal Act 2004 (WA), s 3(1)
State Planning Policy 3.1 Residential Design Codes of Western Australia 2013, cl 5.1.1, cl 5.1.1 P1.2, cl 5.1.1 C1.3, cl 5.1.1 C1.4
Result:
Tribunal's determination affirmed
Summary of Tribunal's decision:
Mr Matthew Bormolini sought review by a judicial member upon a matter involving a question of law of a determination made by the Tribunal when constituted without a legally qualified member. In the determination, the Tribunal affirmed the decision of the Western Australian Planning Commission to refuse subdivision approval for a three lot subdivision of Residential zoned land. The proposed lots were 8% 12.4% below the minimum site area and 22.24% below the average site area prescribed in Table 1 of State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 (Codes) in respect of the residential density code which applied to the site for development purposes. The Tribunal determined that the minimum and average site areas prescribed by the Codes for development purposes is relevant to the planning assessment of the subdivision application and that, in the circumstances of the case, the subdivision application should be refused because of the residential density contemplated by the subdivision, the absence of a cogent reason to depart from the planning policy that lots of a lesser size or frontage than prescribed by the relevant residential density code for development purposes should not generally be approved, and the creation of an adverse planning precedent if subdivision approval were granted.
The judicial member determined that the Tribunal did not err in law in any of the 10 respects alleged by Mr Bormolini. In particular, the judicial member held that the Tribunal correctly determined that the minimum and average site areas prescribed by the Codes for development purposes is relevant to the planning assessment of whether to grant subdivision approval. Although, under Western Australian planning law, 'development' does not include 'subdivision', and consequently the creation of an allotment by subdivision that is smaller than the minimum and average site areas prescribed in the Codes for development purposes is not precluded as a matter of law, there is, as a matter of orderly and proper planning, a close and fundamental connection between subdivision and development and, in particular, between residential subdivision and residential development. As a matter of orderly and proper planning and having 'due regard' to the provisions of the relevant local planning scheme which requires, as is typically the case, development for any of the residential purposes dealt with by the Codes to conform to the provisions of the Codes and which identifies the residential density code applicable to the land, in the exercise of planning discretion the Western Australian Planning Commission (and the Tribunal on review) will not generally approve the creation by subdivision of an allotment of a lesser size than the minimum and average site areas prescribed by the Codes for development purposes on the allotment.
The judicial member also determined that the Tribunal correctly and properly considered whether there is a cogent reason why this planning policy should not be applied in the particular circumstances of the case.
Finally, the judicial member determined that the Tribunal did not err in law in finding that approval of the proposed subdivision would set an adverse planning precedent.
The Tribunal's determination was therefore affirmed.
Category: B
Representation:
Counsel:
Applicant : Mr I McKellar (Acting as Agent)
Respondent : Mr I Repper
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Bormolini and Western Australian Planning Commission [2014] WASAT 88
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
SinAusBel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67
Thomas and Town of Cambridge [2013] WASAT 206
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Application for review by judicial member
1 Mr Matthew Bormolini seeks review by a judicial member, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal constituted by Member Mr J Jordan in a planning review proceeding brought by Mr Bormolini under s 251(1) of the PD Act (determination). In the planning review proceeding, Mr Bormolini sought review by the Tribunal of the refusal by the Western Australian Planning Commission (Commission) to grant approval for the subdivision of No 2 (Lot 89) Holmes Street, corner Tribute Street West, Shelley (site) into three lots. The Tribunal dismissed Mr Bormolini's application for review and affirmed the Commission's refusal of subdivision approval: Bormolini and Western Australian Planning Commission [2014] WASAT 88 (reasons).
2 The site is zoned Residential under the City of Canning Town Planning Scheme No 40 (TPS 40 or Scheme). Clause 5.4.1.2 of TPS 40 states that, unless otherwise provided for in the Scheme, 'the development of land for any of the residential purposes dealt with by the Residential Planning Codes [now State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 (Codes)] shall conform to the provisions of those Codes.' Clause 5.4.1.4 of TPS 40 states as follows:
The Residential Planning Code density applicable to the land shall be determined by reference to the Residential Planning Code density number(s) superimposed on the particular areas shown on the Scheme Map as being contained within the brownstriped areas and brown borders.
3 At [7] of the reasons, the Tribunal found that the Scheme Map 'showed the site was within a brownstriped area within a brown border with the density number of R17.5 superimposed' and the Tribunal stated that it was 'satisfied that the R17.5 density code was, and remains, applicable to the site.'
4 As the Tribunal said at [8] of the reasons, Table 1 of the Codes prescribes a minimum site area per dwelling of 500m² and an average site area per dwelling of 571m² for the development of a single house or grouped dwelling on land coded R17.5. As the Tribunal also said at [8] of the reasons, in the case of a lot with a corner truncation, cl 5.1.1 C1.3 of the Codes allows for up to 20m² of that truncation to be added to the area of the lot for the purposes of assessing compliance with Table 1.
5 The site has an area of 1,314m² and has a corner truncation. Each of the three lots proposed in the subdivision application would have an area of 438m². As the Tribunal said at [30] of the reasons, if the truncation is included in the area of the site, two of the proposed lots would be 12.4% below the minimum site area, the third lot would be 8% below the minimum site area and the proposed lots would be 22.24% below the average site area prescribed by Table 1 of the Codes for the development of a single house or grouped dwelling on land coded R17.5.
6 The Tribunal affirmed the Commission's decision to refuse subdivision approval for the proposed subdivision essentially because the Tribunal found that 'the variation in the density proposed goes beyond what might be considered as a reasonable variation to the site area requirement required by reference to the Codes under TPS 40' (at [51]), there was 'not, in this matter, particular circumstances or a history of subdivision and settlement pattern to support subdivision' (at [50]) and 'the precedent [that would be set by approval of the proposed subdivision] would be ''undesirable''' (at [65]), that is, that the approval of the subdivision would create an adverse planning precedent.
7 Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal '… upon a matter involving a question of law …' that was made in a proceeding under the PD Act by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Member Jordan is not a legally qualified member as defined in s 3(1) of the SAT Act.
8 Mr Bormolini is not legally represented. Mr Bormolini's agent filed a document setting out 10 'grounds for review by judicial member'. A number of these 'grounds' are overlapping, contain misconceptions or, in effect, challenge findings of fact, rather than determinations of law. Although I will address Mr Bormolini's principal submissions, I also note that some of his submissions go beyond the 'grounds'. Mr Bormolini's 10 'grounds for review by judicial member' are as follows:
1. The Tribunal erred in law (at para. 6) by applying the provisions of Clause 5.4.1.4 of the City of Canning's Town Planning Scheme 40 ('TPS 40') to the application before it.
2. Alternatively, even if the Applicant is wrong in Ground 1 above (which is denied), the Tribunal erred in law by incorrectly applying the criteria within the Residential Planning Code ('RDC') as it forms part of TPS 40.
3. The Tribunal erred in law (at para's. [sic] 17; 18 and 29) by holding that a Residential Planning Code ('RDC') 'density code' of R17.5 attached to the land the subject of the application (the 'Land') and as it currently exists.
4. The Tribunal erred in law (at para. 25; 27) by holding that in this matter, TPS 40 clearly identifies the Codes as a guiding document when considering residential development density and whether to grant approval.
5. The Tribunal erred in law by holding that (at para. 24) to approve the proposed lots, the 'site area per dwelling' of the RDC would have to be suspended and (at para. 31) purporting a variance to lot sizes stipulated by the RDC.
6. The Tribunal erred in law (at para. 35) by holding that the subdivision proposal, by removing the capacity to develop grouped dwellings on the site, was not consistent with TPS 40.
7. The Tribunal erred in law (at para's. [sic] 54; 55) by misconstruing the operation of TPS 40 in respect of extrinsic land and, therefore, by having regard to an irrelevant matter.
8. The Tribunal erred in law by:
a. not, in a real sense or in a proper case demonstrated [sic] a readiness to depart from policy previously adopted; and,
b. elevating to be the absolute arbiter of the proposal a policy that did not apply to the proposal and by failing to give due and proper regard to policy that did apply to the proposal.
9. The Tribunal erred in law (at para. 57; 58) by:
a. holding that the proper course (for the application to be approved) would be for TPS 40 to be first amended,
b. opting out of discharging is [sic] oblations [sic] in law; and,
c. refusing subdivision approval in circumstances where TPS 40 does not injunct subdivision in any way at all.
10. As to the question of precedent, the Tribunal erred in law:
a. (at para. 63) by purporting that (earlier versions) of the RDC applied to examples of earlier small lot subdivisions in the TPS 40 area,
b. (at para. 64) by requiring that the examples of earlier small lot subdivisions in the locality demonstrate inconsistency with TPS 40,
c. (at para. 65) by tying 'undesirability' of the precedent to:
i. the RDC,
ii. a misconceived need to amend TPS 40 before orderly and proper planning could occur[,]
d. by elevating a precedent to be a basis to dismiss the application.
Tribunal's reasons for determination
10 After referring to the site and locality and the planning framework, including provisions of the Codes and the Commission's Development Control Policy 2.2 Residential Subdivision (DC 2.2), the Tribunal identified the issues for determination in the review at [16] of the reasons in the following terms:
The issues in this matter are interrelated. It was common ground that the Tribunal on review has discretion to approve the proposed subdivision. Issues that then arise in the consideration of this matter are:
1) Whether the Codes are relevant to the determination of the application for subdivision.
2) Whether the proposed subdivision is consistent with the legislative and planning policy framework that is applicable to the subject land.
3) Whether[,] if the application for subdivision is not consistent with the applicable policy framework, it should nevertheless be approved, having regard to:
i) the extent of the proposed variation to the R17.5 density code being sought for the proposed subdivision;
ii) the requirements of orderly and proper planning;
iii) whether the proposed lot sizes are consistent with those that are characteristic in the locality; and
iv) whether the proposed subdivision would set an undesirable precedent for further subdivision in the locality.
12 In relation to whether the Codes are relevant to the determination of the application for subdivision, the Tribunal acknowledged, at [17] of the reasons, that 'TPS 40 in cl 5.4.1 refers to the Codes as a guide to development, but does not refer to the Codes as being a guide to subdivision of residential zoned lots'. However, the Tribunal then said the following at [18] of the reasons:
The Tribunal considers that the Codes are relevant to the determination of this application for subdivision. Subdivision does not occur as an activity discrete from other planning considerations. The Codes are applicable to the development of the site as it currently exists and the Codes would be a guideline when considering the development potential of any new lots created. When considering whether to permit subdivision, it is appropriate to consider the development that might then occur: Sin-Aus-Bel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67 at [44] and [46].
13 At [21] of the reasons, the Tribunal said the following:
Both parties cited Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark). In Landpark at [26] and [28], the Tribunal stated:
In other words, the Codes contemplate that the Commission and the Tribunal on review may approve a subdivision which involves allotments that are smaller than the minimum site area that corresponds to the residential density code that applies to the land for development purposes. Where, in the exercise of planning discretion, the Commission or Tribunal approves the creation of such an allotment the minimum site area required for development of a single house is varied under the Codes to the area of the approved allotment.
…
However, although approval of the proposed subdivision does not conflict with cl 6(3) of TPS 20, as cl 1.4.3 of the Codes recognises there is 'in practice, an inextricable link between subdivision and development standards in the case of Single Houses'. As a matter of orderly and proper planning … the Commission and the Tribunal on review must give due regard to cl 6(3) of TPS 20 and to its obvious expectation that generally the development of a single house on land coded R2.5 under the Scheme requires a minimum site area of 4,000 square metres and a minimum frontage of 40 metres and that the Commission will not, therefore, generally approve an allotment of a lesser size or frontage.
The Tribunal is concerned that for the lots to be approved, any reference to the site area per dwelling of the Codes would have to be suspended, and the subdivision only considered having regard to other instruments such as Directions 2031 and Liveable Neighbourhoods. When the development of new lots established at a density greater than R17.5 was then subsequently considered, the standards of the R17.5 coding would be applied as relevant to lots resulting from a 'previous subdivision'.
The Tribunal considers that in this matter, TPS 40 clearly identifies the Codes as a guiding document when considering residential development and, significantly, the density at which that development is to occur.
15 At [26] of the reasons, the Tribunal repeated that there was 'no dispute that discretion exists for the subdivision to be approved' and then referred to the established principle in relation to the application of planning policy stated by Barker J in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 (Clive Elliott Jennings) at [24] as follows:
[T]he relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles find expression in the 'policy' are not relevant to the particular application …
16 At [27] of the reasons, the Tribunal concluded that 'the Codes are relevant to the consideration of whether the discretion is to be exercised and approval granted for the proposed subdivision' and at [28] of the reasons the Tribunal said that 'this leads to consideration of the next issue, which is whether the subdivision would be consistent with the applicable statutory and policy framework'.
17 In relation to that issue, the Tribunal referred, at [31] of the reasons, to the 'design principles' set out in cl 5.1.1 P1.2 of the Codes, which, as the Tribunal said, 'provide as a guide, variation in site area of 5% in certain circumstances'. The Tribunal then found that 'the proposed lots would not be consistent with the R17.5 design principles because, in this matter, the variation from the site areas in Table 1 is too great' (at [31]).
18 The Tribunal then reviewed provisions of TPS 40, including cl 5.3.1 which states that the purpose and intent of the Residential zone is to 'provide a wide range of residential accommodation for the needs of the present and future population.'
19 The Tribunal referred to town planning expert evidence provided by Mr David Maiorana, who was called by Mr Bormolini, which the Tribunal found at [34] 'set out clearly how the proposed lots would satisfy the minimum frontage requirement of the R17.5 density code in Table 1 and how the proposed lots would retain the potential for development that would satisfy the R17.5 setback and open space standards.'
20 At [38] of the reasons, the Tribunal also referred to Mr Maiorana's evidence that the proposed subdivision is consistent with State Planning Policy No 3 Urban Growth and Settlement (SPP 3) which the Tribunal said 'promoted sustainable urban growth in the metropolitan area and that priority be given to infill development and higher density in high amenity areas, such as near to the river as in this instance' (at [38]). At [39] of the reasons, the Tribunal referred to Mr Maiorana's evidence that the principles set out in SPP 3 were also promoted in 'Liveable Neighbourhoods', a strategic planning document which the Tribunal said 'also promoted variety in lot sizes, increased density to support local services and cost effective development to promote affordable housing and maximum efficiency in the use of land' (at [39]).
21 At [40] [41] of the reasons, the Tribunal also referred to the following aspects of the evidence presented on behalf of Mr Bormolini:
The applicant cited several cases determined by the Tribunal where the principles of Liveable Neighbourhoods were a consideration in subdivisions of between two and 10 lots.
In this respect, Mr Maiorana referred to Liveable Neighbourhoods and the density targets shown in Directions 2031 as a better planning outcome than those of the TPS 40 Scheme Maps. The opinion of Mr Maiorana was that to subdivide the site into two lots (equivalent to a density of about R15) would be a lost opportunity to assist in achieving the objectives of Directions 2031, particularly once the lots created have been built on. In Mr Maiorana's opinion, the three lots proposed would still fall short of the Directions 2031 goals, because they would still be low density, but it would be preferable to the two lots in this respect.
22 The Tribunal concluded its discussion of whether the proposed subdivision would be consistent with the legislative and planning policy framework at [46] of the reasons as follows:
The proposed subdivision would add to the number of dwelling sites in a small way, and in this regard, is consistent with the overall intent of Directions 2031. Directions 2031 is, however, described on page 1 as a 'framework to guide the detailed planning and delivery of housing …'. The Tribunal is of the view that the usefulness of Directions 2031 is that it refers to achieving density targets and lot diversity. The Tribunal does not accept, however, that lot size diversity is an objective for a single street, but is an objective for a planned structure for a locality. Increasing residential density in an ad hoc way would not be consistent with Directions 2031 because it goes beyond realising the existing potential under TPS 40, and it has not yet been determined what future growth is to occur in Shelley.
23 Having reviewed the various components of the legislative and planning policy framework, it is clear that the Tribunal determined that the proposed subdivision would not be consistent with that framework. It then proceeded to determine whether the proposed subdivision 'should nevertheless be approved'. In considering, in this regard, 'the extent of the proposed variation from the R17.5 density code', the Tribunal determined as follows at [51] of the reasons:
While a three lot subdivision is all that is proposed, the Tribunal finds that the variation in the density proposed goes beyond what might be considered as a reasonable variation to the site area requirement required by reference to the Codes under TPS 40, and therefore cannot be supported.
24 In relation to 'whether the subdivision would be consistent with the requirements of orderly and proper planning', the Tribunal determined, at [57] [58] of the reasons, as follows:
Directions 2031 states that old local planning schemes need to be reviewed so that the goals of increasing residential density can be achieved, but does not advocate blanket recoding of localities without a housing strategy first being in place. In the Tribunal's view, local planning schemes remain the key mechanism through which planning is administered at the local level. It might well be that the future of this locality is one greater housing density than currently planned, but it is not the role of the Tribunal on review to replan this suburb.
The Tribunal would comment that while the 5% reduction in lot area, or very close to that percentage, might be supported, it is of the view that orderly planning requires that if it is proposed to change the residential density pattern in a local government area to the extent applied for, then the local planning scheme should be reviewed. It would not be orderly planning to attempt to implement density changes in an ad hoc manner by way of either development or subdivision application proposals for individual lots. The proper course would be for TPS 40 to be reviewed in accordance with the requirements of the PD Act, incorporating the objectives of Directions 2031, if a departure from the established development density guidelines, such as that proposed, is being sought.
25 In relation to 'whether the proposed lot sizes would be consistent with those that are characteristic of the locality', the Tribunal found that 'the character in this area is not set, but is better characterised as a locality in transition' (at [61]). The Tribunal found that the lot sizes proposed in the subdivision application 'would not be characteristic of the current development pattern in the area, but neither yet would be the development of the site to an R17.5 standard' and that the 'difference between the proposed subdivision and the existing character of the locality is not considered, by itself, to be a reason for refusal of the application' (at [61]).
26 Finally, the Tribunal addressed the issue of 'whether the proposed subdivision would set a precedent'. At [63] and [64] of the reasons, the Tribunal determined that, although there were several examples of lots less than 500m² having been created in the locality, these do not relevantly support the approval of the proposed subdivision as they were 'within the 5% variation referred to in the Codes' or were approved prior to the planning framework stipulating 'a minimum lot size for grouped dwellings under the R17.5 coding', and the creation of smaller lots in the locality did not establish 'a pattern of lot size approvals inconsistent with TPS 40, that is sufficient to be used as the basis for supporting subdivisions such as now proposed' (at [64]).
27 At [65] of the reasons, the Tribunal found that approval of the proposed subdivision would be 'undesirable', that is, it would create an adverse planning precedent.
Consideration of 'grounds for review by judicial member'
Ground 1 'The Tribunal erred in law (at para. 6) by applying the provisions of Clause 5.4.1.4 of the City of Canning's Town Planning Scheme 40 ('TPS 40') to the application before it'
28 As framed, Ground 1 is misconceived, because the Tribunal did not 'apply' cl 5.4.1.4 of TPS 40 'to the application before it', but rather determined that cl 5.4.1.4 of TPS 40 and the minimum and average site area standards imposed by the Codes for single house development on land coded R17.5 is relevant in the exercise of planning discretion as to whether to grant subdivision approval for the proposed subdivision. The Tribunal did not err in law in this respect. Clause 5.4.1.4 of TPS 40 and the minimum and average site area per dwelling for the development of a single house prescribed by the Codes was not only relevant, but material, in the exercise of discretion as to whether to grant subdivision approval to create lots of the size proposed in the subdivision application.
29 It is correct, as Mr Bormolini submits, that the planning application before the Tribunal 'did not involve development (or use) nor was it an application before the City of Canning made under TPS 40.' However, s 138(2) of the PD Act requires the Commission (and the Tribunal on review) 'to have due regard to the provisions of any local planning scheme that applies to the land under consideration' in determining whether to grant subdivision approval. TPS 40 is a local planning scheme that applies to the land under consideration in this case. Clause 5.4.1.2 of TPS 40 requires that the development of land for any of the residential purposes dealt with by the Codes 'shall conform to the provisions of those Codes' and cl 5.4.1.4 of TPS 40 and the Scheme Map prescribes a residential density code of R17.5 in respect of the site. As I explained in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark) at [28] (in a passage set out by the Tribunal in its reasons at [21]):
… As a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission and the Tribunal on review must give due regard to cl 6(3) of TPS 20 [in the present case, cl 5.4.1.2 of TPS 40, which, as is typically the case in local planning schemes, is in essentially the same terms] and to its obvious expectation that generally the development of a single house on land coded R2.5 [in the present case, R17.5] under the Scheme requires a minimum site area of 4000 square metres [in the present case, a minimum site area of 500m² and an average site area of 571m²] and a minimum frontage of 40 metres [in the present case, 12 metres] and that the Commission will not, therefore, generally approve an allotment of a lesser size or frontage. (Emphasis added)
30 Although, as I explained at [26] of Landpark, because the term 'development', as defined in s 4(1) of the PD Act (and consequently, relevantly, under cl 1.11.3 of TPS 40 for the purposes of the Scheme), does not include 'subdivision', the Commission (and the Tribunal on review) has discretion to approve a subdivision which involves allotments that are smaller than the minimum and average site areas that correspond to the residential density code applicable to the land for development purposes, nevertheless, the minimum and average site areas that would apply for residential development purposes are certainly relevant and material in the exercise of planning discretion as to whether to approve a subdivision to create residential lots. This is because, as a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act (having 'due regard' to, relevantly, cl 5.4.1.2 and cl 5.4.1.4 of TPS 40), in the exercise of planning discretion, the Commission (and the Tribunal on review) will not generally approve an allotment of a lesser size or frontage than that prescribed by the Codes for development purposes.
31 Although, under Western Australian planning law 'development' does not include 'subdivision', as recognised in Landpark and in other cases, as a matter of orderly and proper planning, there is a close and fundamental connection between subdivision and development of land.
32 As Deputy President Judge Chaney (as his Honour then was) said in SinAusBel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67 at [46] (in a passage referred to by the Tribunal in its reasons at [18]):
[I]t is appropriate and desirable, if not obligatory, for the approving authority to consider a subdivision application in the context of the likely future use of the land.
33 In Boulter and City of Subiaco[2007] WASAT 71; (2007) 52 SR (WA) 84, the Tribunal said the following at [65]:
The subdivision approval, in itself, creates reasonable expectations for development of the site. … When the local government is ultimately presented by the landowner with a development application for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls, the application must be assessed in the context of the expectations created by the approval of the subdivision.
34 In WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 at [37], having referred to the decision in Landpark as authority for the proposition that in Western Australia 'development' does not include 'subdivision', the Tribunal said:
However, subdivision generally facilitates land use and development[.]
35 The close and fundamental connection, as a matter of orderly and proper planning, between residential subdivision and development, particularly in relation to residential density and residential density coding, is also reflected in the terms of the design principles concerning site area in cl 5.1.1 (see, in particular, cl 5.1.1 P1.2) of the Codes (quoted by the Tribunal in its reasons at [11]) and in the corresponding Explanatory Guidelines of the Codes (quoted by the Tribunal at [23] of its reasons). Clause 5.1.1 of the Codes states as follows:
Development demonstrates compliance with the following design principles (P)
5.1.1 Site area
P1.1 Development of the type and density indicated by the density code designated in the scheme.
P1.2 The WAPC may approve the creation of a lot, survey strata lot or strata lot of a lesser minimum and/or average site area than that specified in Table 1, and the WAPC in consultation with the local government may approve the creation of a survey strata lot or strata lot for a single house or a grouped dwelling of a lesser minimum site area than that specified in Table 1 provided that the proposed variation would be no more than five per cent less in area than that specified in Table 1; and
• facilitate the protection of an environmental or heritage feature;
• facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention;
• facilitate the development of lots with separate and sufficient frontage to more than one public street;
• overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature;
• 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
• achieve specific objectives of the local planning framework.
P1.3 The WAPC, in consultation with the local government, may approve the creation of a survey strata lot or strata lot for an existing authorised group dwelling or multiple dwelling development of a lesser minimum and average site area than that specified in Table 1, where, in the opinion of the WAPC or the local government, the development on the resulting survey strata or strata lots is consistent with the objectives of the relevant design element in the RCodes, and the orderly and proper planning of the locality.
36 The corresponding Explanatory Guidelines of the Codes states as follows:
Variations to minimum and average site area requirements
The minimum and average site areas for single houses and grouped dwellings stipulated in table 1 may not be varied, except where an application for subdivision approval is made to the WAPC and the application satisfies certain criteria, clause 5.1.1 P1.2 of the R-Codes, provides for a maximum lot size variation of 5 per cent to be considered. This provides some flexibility to accommodate minor reductions to minimum and average site areas while providing a maximum of 5 per cent to make clear that flexibility is limited. The subdivision of land is also subject to other WAPC policies, particularly Development Control Policy 2.2 Residential Subdivision.
37 The planning principle referred to in Landpark at [28] that the Commission (and the Tribunal on review) will not generally approve a subdivision creating a residential lot of a lesser size or frontage than prescribed by the Codes in respect of the development of the land for residential purposes reflects and stems from the close and fundamental connection between residential subdivision and development as a matter of orderly and proper planning. It also reflects the crucial role in residential planning in Western Australia under the Codes and local planning schemes of density control by allocation of residential density coding on local planning scheme maps or otherwise under local planning schemes.
38 In his submissions in relation to Ground 1, Mr Bormolini contends that 'ultimate use of the land could be both residential and nonresidential in nature'. However, in his submissions in reply, Mr Bormolini says, inconsistently, that he does not dispute the Commission's submission that 'residential development will undoubtedly occur on the site following the proposed subdivision.' In any case, having regard to the Residential zoning of the site and the nature of the proposed subdivision, it is highly likely that the proposed subdivision will, if approved, facilitate residential development and use of the proposed lots.
39 Mr Bormolini also submits that the Tribunal erred in law 'by reading Clause 5.4.1.4 (at [6] of the reasons) in isolation of the preceding subsections [sic] of Clause 5.4.1 of TPS 40', because 'the words ''the land'' in Clause 5.4.1.4 refers only to a discrete parcel of land and which is the subject of a residential development proposal under Clause 5.4.1.2 which is not the case here.' However, as is apparent from [5] of the reasons, the Tribunal did not 'read' cl 5.4.1.4 'in isolation' from cl 5.4.1.2. The Tribunal said, at [5] of the reasons, that, under cl 5.4.1.2 of TPS 40, the 'development of land' for any of the residential purposes dealt with by the Codes 'shall conform to the provisions of those Codes'. The Tribunal was plainly aware that the minimum and average site area per dwelling prescribed in Table 1 of the Codes in relation to land coded R17.5 strictly applies only to residential development of a single house or grouped dwelling and that no such development has yet been proposed. Nevertheless, as explained in Landpark at [28], as a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission (and the Tribunal on review) must give due regard to cl 5.4.1.2 and cl 5.4.1.4 of TPS 40 and to the minimum and average site areas prescribed for the development of a single house or grouped dwelling on the proposed allotments if subdivision approval is granted.
40 Mr Bormolini also submits that cl 5.4.1.4 of TPS 40 is distinguishable from cl 6(4) of the Shire of Busselton Town Planning Scheme No 20 which I considered in Landpark, because whereas cl 5.4.1.4 of TPS 40 commences with the words 'The Residential Planning Code Density applicable to the land …' (emphasis added), cl 6(4) of the Scheme considered in Landpark commenced with the words 'The Residential Planning Code Density applicable to land within the Scheme Area …' (emphasis added). Mr Bormolini submits that in Landpark, 'the [residential density code] and site area requirements were blanketed over the entire locality and applied regardless of whether the application was on [sic] of subdivision, or development', whereas, under TPS 40, 'for a Code to apply, a parcel of land must first be identified by way of development application' and '[t]his does not exist as yet, thus a Code cannot apply'.
41 However, cl 5.4.1.4 of TPS 40 is relevantly indistinguishable from cl 6(4) of the local planning scheme considered in Landpark. The residential density code and site area requirements under the provision considered in Landpark were not relevantly 'blanketed over the entire locality' and did not apply 'regardless of whether the application was on [sic] of subdivision, or development'. Although the two clauses use slightly different language, they have the same meaning; namely, that the residential density code applicable to land for residential development purposes is determined by superimposition of the density code on a particular area on the Scheme Map that includes the land in question. As explained in Landpark at [26], because 'development' does not include 'subdivision', the residential density code and site area requirements do not 'apply' to a residential subdivision application as they 'apply' to a residential development application under the local planning scheme. Nevertheless, as explained at [28] of Landpark, the residential density code that would apply to residential development of an allotment proposed in a subdivision application and the minimum and average site area per dwelling for residential development under the Codes is relevant in the exercise of planning discretion as to whether to grant subdivision approval and thereby create an allotment.
42 Finally, and for completeness, I note that DC 2.2 also makes the consideration relevant. Section 241(1) of the PD Act requires the Tribunal to have 'due regard' to 'relevant planning considerations' in determining an application under Pt 14 of the PD Act, including an application for the review of the refusal of subdivision approval under s 251(1) of the PD Act. DC 2.2, being a policy regulating residential subdivision, contains 'relevant planning considerations' with respect to the subdivision application the subject of the Tribunal's determination. Furthermore, s 241(1) of the PD Act expressly includes 'any State planning policy which may affect the subject matter of the application' within the expression 'relevant planning considerations' and DC 2.2 is a component of State Planning Policy No 1 State Planning Framework Policy.
43 As the Commission submits, the Codes and the minimum and average site area prescribed in Table 1 of the Codes for development purposes is also relevant in the exercise of planning discretion as to whether to approve the proposed subdivision in consequence of DC 2.2. In its reasons for the determination, the Tribunal set out relevant extracts from DC 2.2 at [12]. The extracted clauses include cl 3.2.1, which states that '[g]enerally, the minimum lot size and frontage requirements of the relevant RCode will form the basis for the subdivision of residential land', and cl 3.2.3, which sets out detailed criteria to be met in order for the Commission (and the Tribunal on review) to 'consider subdivision … applications proposing variations to lot sizes for Single Houses and Grouped Dwellings below the minimum site area requirements (i.e. below the minimum and below the average lot sizes) prescribed in Table 1 of the [Codes] …'.
44 The Tribunal did not err in law in respect of Ground 1.
Ground 2 'Alternatively, even if the Applicant is wrong in Ground 1 above (which is denied), the Tribunal erred in law by incorrectly applying the criteria within the Residential Planning Code ('RDC') as it forms part of TPS 40'
45 As in the case of Ground 1, Ground 2, as framed, is misconceived, because the Tribunal did not 'apply' the criteria within the Codes in relation to the minimum and average site areas required by Table 1 of the Codes for development of a single house on land coded R17.5. Rather, the Tribunal correctly determined that those criteria are relevant in the exercise of planning discretion as to whether to approve the proposed subdivision. Furthermore, the Tribunal correctly and properly had regard to this relevant consideration in the exercise of planning discretion.
46 The Tribunal expressly recognised in the reasons (at [16] and [26]) that it had a discretion to approve the proposed subdivision. The Tribunal correctly set out the applicable principle in relation to application of (and departure from) planning policy in terms of the statement of Barker J in Clive Elliott Jennings at [26] of the Tribunal's reasons. The Tribunal then correctly and properly applied that principle in the exercise of planning discretion in considering whether there is a cogent reason in the circumstances of the case as to why the planning principle that finds expression in the policy that the Commission (and the Tribunal on review) will not generally approve a subdivision creating a residential lot of a lesser size or frontage than prescribed by the Codes in respect of development of the land for residential purposes should not be applied. The Tribunal found that '[t]here is not, in this matter, particular circumstances or a history of subdivision and settlement pattern to support subdivision …' (at [50]). The Tribunal's determination in this regard involved a finding of fact and is not amenable to review by a judicial member.
47 Mr Bormolini makes essentially the same erroneous submissions in relation to Ground 2 as he makes in relation to Ground 1. In particular, he submits that because 'development' does not include 'subdivision' and because TPS 40 and the Codes are 'not intended to and [do] not deal with subdivision application at all', the Codes have 'no application to assessment of the proposed subdivision at all and was irrelevant to assessment of the Application.' As discussed earlier, although it is correct that cl 5.4.1 of TPS 40 and the minimum and average site areas prescribed for development purposes in Table 1 of the Codes do not preclude approval of a subdivision application proposing the creation of a smaller residential lot than the minimum and average site areas specified in Table 1 of the Codes in relation to the coding of the land, those provisions are certainly relevant and material in the exercise of planning discretion, for reasons set out earlier. The Tribunal did not take into account an irrelevant consideration in the assessment of the subdivision application. As recognised in the planning principle referred to in Landpark at [28], although 'development' does not include 'subdivision', there is, as a matter of orderly and proper planning, a close and fundamental connection between subdivision and development and, in particular, between residential subdivision and residential development.
48 Finally, in his submissions in relation to Ground 2, Mr Bormolini contends that as the Codes 'would have application after the fact of subdivision and in circumstances where development of the proposed lots is commenced', the Tribunal 'should therefore have confined itself to only having regard to the [residential density code] as that code would have applied to the control of development after the fact of subdivision'. However, because cl 5.1.1 C1.4 of the Codes contains a deemedtocomply provision enabling variations to the minimum and average site areas set out in Table 1 of the Codes in terms of 'the area of a lot, survey strata lot or strata lot approved by the [Commission]', Mr Bormolini's argument, if correct, would effectively undermine the critical role in residential planning in Western Australia under the Codes and local planning schemes of density control by allocation of residential density coding. Given that the deemedtocomply provision understandably enables variations to the minimum and average site areas prescribed in Table 1 of the Codes in terms of the area of an approved subdivisional lot, it could not possibly have been the intention of TPS 40 or the Codes to confine the Commission (and the Tribunal on review) in considering whether to grant subdivision approval 'to the [residential density code] as that code would have applied to the control of development after the fact of subdivision.'
49 The Tribunal did not err in law in respect of Ground 2.
Ground 3 'The Tribunal erred in law (at para's. [sic] 17; 18 and 29) by holding that a Residential Planning Code ('RDC') 'density code' of R17.5 attached to the land the subject of the application (the 'Land') and as it currently exists'
50 This ground is founded upon the same erroneous submissions as are made in relation to the earlier grounds. In particular, Mr Bormolini submits that the Tribunal may only have regard to the density coding of the site and the minimum and average site area for a single house development under Table 1 of the Codes 'when a development application is before the City [of Canning], as it is only at that time that ''the development of land for any of the residential purposes dealt with by the [Codes]'' is proposed under cl 5.4.1.2 of the TPS 40 and it is only then that the residential density code applicable to that land can be determined under cl 5.4.1.4 of TPS 40'. This submission is misconceived. As the Tribunal expressly recognised at [17] of the reasons, 'TPS 40 in cl 5.4.1 refers to the Codes as a guide to development, but does not refer to the Codes as being a guide to subdivision of residential zoned lots'. Nevertheless, as the Tribunal correctly observed at [18] of the reasons, 'the Codes are relevant to the determination of this application for subdivision' as subdivision 'does not occur as an activity discrete from other planning considerations' and the Codes are 'a guideline when considering the development potential of any new lots created.'
51 The Tribunal did not err in law in respect of Ground 3.
Ground 4 'The Tribunal erred in law (at para. 25; 27) by holding that in this matter, TPS 40 clearly identifies the Codes as a guiding document when considering residential development density and whether to grant approval'
52 At [25] of the reasons, the Tribunal correctly said that 'TPS 40 clearly identifies the Codes as a guiding document when considering residential development and, significantly, the density at which that development is to occur.' At [27] of the reasons, the Tribunal correctly found that 'the Codes are relevant to the consideration of whether the discretion is to be exercised and approval granted for the proposed subdivision.' The Tribunal did not say that TPS 40 requires that the proposed subdivision must conform to the provisions of the Codes, but rather that the Codes, which, together with the allocation of density coding to land under local planning schemes, carefully regulate density in the context of residential development, is a relevant consideration under TPS 40 in the assessment of a subdivision application to create a residential allotment capable of residential development under the Codes. This reflects the close and fundamental connection between residential subdivision and development referred to earlier.
53 In support Ground 4, Mr Bormolini advances the same erroneous arguments as he makes in relation to the earlier grounds and also relies, in part, on arguments advanced in relation to Ground 7, which ground is also not made out as discussed below. Mr Bormolini also submits that 'the density at which subdivision is to occur is at the complete discretion of the [Commission].' This submission reflects a fundamental misunderstanding of orderly and proper planning and, in particular, the close and fundamental connection between residential subdivision and development. As explained in Landpark at [26], the Commission (and the Tribunal on review) is not precluded as a matter of law and therefore may approve a subdivision which involves allotments that are smaller than the minimum and average site areas prescribed in the Codes for development purposes. However, as explained in Landpark at [28], as a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission (and the Tribunal on review) must have due regard to, relevantly, cl 5.4.1.2 of TPS 40 and to its obvious expectation that generally the development of a single house or a grouped dwelling on land coded R17.5 under the Scheme requires a minimum site area of 500m² and an average site area of 571m² and that the Commission (and the Tribunal on review) will not, therefore, generally approve an allotment of a lesser size in the exercise of planning discretion.
54 The Tribunal did not err in law in respect of Ground 4.
Ground 5 'The Tribunal erred in law by holding that (at para. 24) to approve the proposed lots, the 'site area per dwelling' of the RDC would have to be suspended and (at para. 31) purporting a variance to lot sizes stipulated by the RDC'
55 The Tribunal said the following at [24] of the reasons:
The Tribunal is concerned that for the lots to be approved, any reference to the site area per dwelling of the Codes would have to be suspended, and the subdivision only considered having regard to other instruments such as Directions 2031 and Liveable Neighbourhoods. When the development of new lots established at a density greater than R17.5 was then subsequently considered, the standards of the R17.5 coding would be applied as relevant to lots resulting from a 'previous subdivision'.
56 The Tribunal said the following at [31] of the reasons:
The design principles, at cl 5.1.1 P1.2 of the Codes, provide as a guide, variation in site area of 5% in certain circumstances. The Tribunal considers that the proposed lots would not be consistent with the R17.5 design principles because, in this matter, the variation from the site areas in Table 1 is too great.
57 Mr Bormolini advances the same erroneous submissions in support of this ground as in relation to the earlier grounds. It is clear from the Tribunal's reasons read as a whole that the Tribunal understood that the proposed subdivision did not have to strictly conform to the Codes in terms of minimum and average site areas in order to be approved, but rather that the Codes were a relevant consideration in the exercise of planning discretion. The references to 'suspension' and 'variation' of the minimum site area per dwelling in the Codes at [24] and [31] (respectively) of the Tribunal's reasons does not indicate that the Tribunal considered that the Codes and the minimum and average site area per dwelling were strictly applicable to the subdivision application. Rather, the reference to 'suspension' and 'variation' indicates the Tribunal's merit view as to the extent to which the proposed subdivision would compromise the residential density prescribed by TPS 40 and the Codes for residential development on the site and, therefore, contemplated by TPS 40 as a guiding policy in relation to residential subdivision approval.
58 The Tribunal did not err in law in respect of Ground 5.
Ground 6 'The Tribunal erred in law (at para. 35) by holding that the subdivision proposal, by removing the capacity to develop grouped dwellings on the site, was not consistent with TPS 40'
59 The Tribunal said the following at [35] of the reasons:
The objective and intent for the residential zone in TPS 40 is to provide a range of residential accommodation. The Tribunal notes that, having regard to cl 5.1.4.6 of TPS 40 and Table 1 of the Codes, under R17.5, single houses or grouped dwellings can be considered. The subdivision, it would appear, would remove the capacity to develop grouped dwellings as a housing type and so, in this regard, is not consistent with TPS 40.
60 The first sentence of [35] of the reasons appears to refer to cl 5.2(a) of TPS 40 which states that the general objectives of Pt V of the Scheme relating to residential development include 'to provide a range of residential densities to encourage the provision of a wide choice of residential accommodation within the City' and to cl 5.3.1 of TPS 40 which states that '[t]he purposes and intent of the Residential zone is to provide for a wide range of residential accommodation for the needs of the present and future population within an attractive and safe residential environment'. The second sentence of [35] refers to 'cl 5.1.4.6 of TPS 40' which does not exist in the Scheme, but appears to be in fact a reference to cl 5.4.1.6 of TPS 40 which precludes multiple dwelling development on land coded less than R40 and thereby implicitly contemplates development of either single houses or grouped dwellings on land coded R17.5.
61 As Mr Bormolini correctly submits, TPS 40 does not mandate a form of residential development or subdivision (other than precluding multiple dwelling development) that should take place on the site. However, in my view, when read in the context of the immediately preceding [34] (and the related [20]) of the reasons, the statement in the third sentence of [35] is understandable and discloses no error of law. At [34], the Tribunal referred to the evidence of Mr Maiorana, the town planning expert witness called by Mr Bormolini, as to 'how the proposed lots would satisfy the minimum frontage requirement of the R17.5 density code in Table 1 and how the proposed lots would retain the potential for development that would satisfy the R17.5 setback and open space standards.' Earlier, at [20] of the reasons, the Tribunal referred to the same witness's evidence as to 'how, if the proposed lots were created, it would then be possible to develop a dwelling having regard to ''reasonable'' design elements for R17.5 coded land, other than, of course, the site area.' Viewed in the context of the immediately preceding [34] (and the related [20]), the statement in the last sentence of [35] appears to be responsive to Mr Maiorana's evidence that the proposed lots would be capable of development as contemplated by the coding. Because of their size, the proposed lots would, at most, be capable of development for a single house on each lot and would not be capable of development for grouped dwellings on any of the lots. Given that the Scheme contemplates a wide range of residential accommodation for the needs of the present and future population, the creation of lots which are only capable of development for a single house on each lot can understandably be said to be 'not consistent with TPS 40'.
62 Furthermore, and in any case, the finding in the last sentence of [35] was merely one finding in a wider discussion and determination that the proposed subdivision was not consistent with the legislative and planning policy framework applicable to the site. It does not appear to have been a significant matter in the Tribunal's determination. The finding was not referred to again and, in particular, was not referred to in the assessment and discussion by the Tribunal of whether, if the application for subdivision is not consistent with the applicable policy framework, it should nevertheless be approved. Plainly, reading the Tribunal's reasons as a whole, the key reason for refusal of the subdivision related to the residential density that would result from development of the proposed lots, even for single houses, when assessed in the context of the minimum and average site area requirements that would apply for residential development in accordance with Table 1 of the Codes and the Tribunal's finding that there was 'not, in this matter, particular circumstances or a history of subdivision and settlement pattern to support subdivision' (at [50]). In my view, therefore, the Tribunal's finding in the last sentence of [35] of the reasons would not, in any case, vitiate its determination to refuse subdivision approval for the proposed subdivision.
63 The Tribunal did not err in law in respect of Ground 6.
Ground 7 'The Tribunal erred in law (at para's. [sic] 54; 55) by misconstruing the operation of TPS 40 in respect of extrinsic land and, therefore, by having regard to an irrelevant matter'
64 Mr Bormolini's submissions in relation to this ground focus only on [54] of the reasons. In that paragraph, the Tribunal noted that the zoning map for TPS 40 'shows that about 400 metres to the east of the site and to the southeast across Leach Highway, the lots have the density coding of F17.5/25' and then said that it considered that 'the TPS 40 zoning maps show where the City of Canning has planned for different residential densities to be located.'
65 Mr Bormolini submits that the Tribunal erred in law because 'no land in the TPS 40 area is ''density coded'' until the fact of development and only relates to a specific parcel of land' and 'future subdivision density is not controlled by TPS 40 at all [but rather] entirely by the [Commission]' and therefore 'the Tribunal erred by placing a misconceived reliance on TPS 40 to determine the density of an area.' Mr Bormolini also submits that the consideration by the Tribunal of 'the purported development density' of land remote from the site is 'a factor irrelevant to the exercise of its discretion'.
66 However, Mr Bormolini's submission that land in the Scheme area is not 'density coded' until a development application is made in respect of a particular parcel of land is incorrect. For the purposes of TPS 40, land is coded once the Scheme Map identifies the land as being within a particular residential density code. For reasons discussed earlier, the residential density code applicable to land is a relevant and material consideration in the exercise of discretion as to whether to approve a subdivision. While it is correct that 'future subdivision density is not controlled by TPS 40' (emphasis added), it is nevertheless guided, in the exercise of planning discretion, by the residential density code applicable under TPS 40 for residential development of proposed allotments.
67 Finally, the reference by the Tribunal to a different coding of land about 400 metres from the site was not 'a factor irrelevant to the exercise of its discretion', given that, as recorded in the immediately preceding [53] of the reasons, Mr Bormolini argued 'that the proposed subdivision would be consistent with the intent of the planning objective of providing a range of residential accommodation … and … would be consistent with the planning objective found in Directions 2031 and Liveable Neighbourhoods of increasing the density of housing in the metropolitan region.' The reference by the Tribunal at [54] of the reasons to the higher coding of other land in the locality was plainly responsive to Mr Bormolini's argument that the subdivision should be approved because strategic planning documents contemplate increasing the density of housing in the metropolitan region. In response, the Tribunal said that the Scheme Map already provides for higher density than R17.5 in the locality. As this statement was responsive to the applicant's argument, it hardly involved taking into account an irrelevant consideration.
68 The Tribunal did not err in law in respect of Ground 7.
Ground 8 'The Tribunal erred in law by:
a. not, in a real sense or in a proper case demonstrated [sic] a readiness to depart from policy previously adopted; and,
b. elevating to be the absolute arbiter of the proposal a policy that did not apply to the proposal and by failing to give due and proper regard to policy that did apply to the proposal'
69 In support of Ground 8, Mr Bormolini relies on the decision of the Supreme Court of Western Australia in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) 74 LGRA 68 in which Ipp J held at 535 and 80 that:
While the town planning implications of a particular zoning will often be a most important factor in the approval of a subdivision, each decision made by the Tribunal will depend on all factors relevant to the land in question. Zoning should not be elevated to the position of absolute arbiter of subdivision approvals.
70 Mr Bormolini submits that:
The complete lack of readiness on the part of the Tribunal [to depart from policy] is made out by:
a. At [24] the Tribunal's contention that the [residential density code] would have to be 'suspended' to permit the approval and which the Tribunal was clearly not prepared to 'suspend',
b. At [22] and [50] by limiting itself to the requirement that facts in the subject case equate to the facts in the Landpark case as the only basis by which a departure from the [residential density code] would be available.
71 However, read as a whole, the Tribunal's reasons show that it was certainly aware that it was exercising a discretion and that, although the Codes and, in particular, the minimum and average site area per dwelling prescribed by Table 1 of the Codes for development of a single house on land coded R17.5, was a 'guiding document' (at [25]) in relation to the exercise of discretion, the planning policy, that the Commission (and the Tribunal on review) will not generally approve a residential subdivision creating a lot of a lesser size than that prescribed by the Codes in respect of residential development, may be departed from in the exercise of discretion where there is a cogent reason to do so.
72 As I held in Thomas and Town of Cambridge [2013] WASAT 206 at [5] and [23], in a review by a judicial member under s 244 of the PD Act, the reasons for determination of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. Read in this way, the Tribunal's use of the word 'suspended' in [24] of the reasons simply reflects the substantial departure from planning policy that would have to be made ('any reference to the site area per dwelling of the Codes would have to be suspended') in order for the proposed subdivision to be approved in the exercise of planning discretion.
73 Furthermore, the Tribunal did not '[limit] itself to a requirement that facts in the subject case equate to the facts in the Landpark case as the only basis by which a departure from the [residential density code] would be available'. At [22] of the reasons, the Tribunal referred to my finding in Landpark that in that case there were 'particular and somewhat unusual circumstances' for allowing the subdivision. The Tribunal correctly summarised those circumstances in that paragraph. However, when the Tribunal's reasons are read as a whole, its finding at [50] that there was 'not, in this matter, particular circumstances or a history of subdivision and settlement pattern to support subdivision as in Landpark' does not show that the Tribunal was restricting itself to the particular factors I identified as applicable in Landpark as the only circumstances in which a departure from the planning policy identified at [28] of that decision (and in DC 2.2) would be appropriate. It is clear, when the Tribunal's reasons and, in particular, its discussion of whether, if the application for subdivision is not consistent with the applicable policy framework, it should nevertheless be approved, at [47] [65] of the reasons, is read as a whole, that the Tribunal carefully considered all of the arguments presented on behalf of Mr Bormolini as to why, in the particular circumstances of the case, there was a cogent reason to depart from the planning policy that generally a residential allotment will not be created in a subdivision which is less in area than the minimum and average site area per dwelling prescribed in Table 1 of the Codes for development purposes in respect of the coding of the site. Having reviewed Mr Bormolini's principal arguments, the Tribunal did not consider there to be a cogent reason to depart from the planning policy. The Tribunal's determination in that respect involves a finding of fact and is not amenable to review by a judicial member.
74 Furthermore, contrary to Mr Bormolini's submission, the Tribunal did not impermissibly elevate a policy that guides the exercise of planning discretion in relation to subdivision to be 'the absolute arbiter of the proposal'. The minimum and average site area per dwelling for residential development purposes was a relevant and material consideration in the exercise of planning discretion as to whether to approve the proposed subdivision which would facilitate residential development of the proposed allotments. The Tribunal determined that the proposed subdivision warrants refusal principally because of the residential density contemplated by the subdivision. It was open to the Tribunal to regard this consideration as the most significant in the exercise of planning discretion.
75 Finally, Mr Bormolini submits that the Tribunal erred in law in that it 'paid no regard' to SPP 3 and, in particular, cl 6 of that policy, in its determination. Clause 6 of SPP 3 states that implementation of the policy will be through, among other things, 'the daytoday process of decisionmaking on … subdivisions …'. As Mr Bormolini correctly submits, s 241(1)(a) of the PD Act required the Tribunal to have 'due regard' to relevant planning considerations including SPP 3. However, in my view, the Tribunal's reasons demonstrate that it had due regard to SPP 3, although that policy was not advanced by either party as, in itself, a material matter in the case. Significantly, SPP 3 was not referred to in either party's statement of issues, facts and contentions. Some aspects of SPP 3 were referred to (briefly) in the witness statement of the town planning expert witness called by Mr Bormolini and there was one mention of that policy in the witness statement of the town planning expert witness called by the Commission. SPP 3 was referred to in more detail in oral evidence and was the subject of crossexamination. However, it does not appear that SPP 3 was advanced by Mr Bormolini before the Tribunal as, in itself, a significant matter for consideration.
76 Nevertheless, the Tribunal expressly referred to SPP 3 at [13] and [38] of the reasons. Furthermore, and significantly, cl 5.3 of SPP 3 states that future metropolitan growth will be planned and managed in accordance with Network City, a strategic planning document (now superseded by Directions 2031), and Mr Bormolini's expert town planning witness gave evidence, as recorded at [39] of the reasons, that the principles of sustainable urban growth in the metropolitan area and that priority be given to infill development at higher density in high amenity areas, which he said were promoted by SPP 3, were also promoted in Liveable Neighbourhoods, another strategic planning document. The Tribunal considered the principles of sustainable urban growth and infill development at higher density in high amenity areas in terms of the provisions and contemplation of Liveable Neighbourhoods and Directions 2031 extensively in the reasons at [39] [46], [50], [53] [54] and [57]. Although the Tribunal did not make express findings in relation to SPP 3, in substance and in effect, the Tribunal considered the planning principles promoted by SPP 3 in its consideration of the subdivision application in the context of Liveable Neighbourhoods and Directions 2031.
77 The Tribunal therefore had 'due regard' to relevant planning considerations, including the planning considerations promoted by SPP 3, in its determination to refuse subdivision approval for the proposed subdivision.
78 In his submissions, Mr Bormolini also refers to various provisions of the planning framework which he contends support approval of the proposed subdivision. In effect, Mr Bormolini seeks a different merits outcome than that determined by the Tribunal. However, s 244 of the PD Act does not enable a merits review of the determination.
79 The Tribunal did not err in law in respect of Ground 8.
Ground 9 'The Tribunal erred in law (at para. 57; 58) by:
a. holding that the proper course (for the application to be approved) would be for TPS 40 to be first amended,
b. opting out of discharging is [sic] oblations [sic] in law; and,
c. refusing subdivision approval in circumstances where TPS 40 does not injunct subdivision in any way at all'
80 The Tribunal said the following at [57] [58] of the reasons:
Directions 2031 states that old local planning schemes need to be reviewed so that the goals of increasing residential density can be achieved, but does not advocate blanket recoding of localities without a housing strategy first being in place. In the Tribunal's view, local planning schemes remain the key mechanism through which planning is administered at the local level. It might well be that the future of this locality is one greater housing density than currently planned, but it is not the role of the Tribunal on review to replan this suburb.
- The Tribunal would comment that while the 5% reduction in lot area, or very close to that percentage, might be supported, it is of the view that orderly planning requires that if it is proposed to change the residential density pattern in a local government area to the extent applied for, then the local planning scheme should be reviewed. It would not be orderly planning to attempt to implement density changes in an ad hoc manner by way of either development or subdivision application proposals for individual lots. The proper course would be for TPS 40 to be reviewed in accordance with the requirements of the PD Act, incorporating the objectives of Directions 2031, if a departure from the established development density guidelines, such as that proposed, is being sought.
81 Mr Bormolini submits that the Tribunal erred in law by requiring that 'rezoning first occur before it could exercise its discretion to approve [the proposed subdivision]'. Mr Bormolini also submits that the statement by the Tribunal that it is not its role on review 'to replan this suburb' (at [57]) involves an error of law in that 'the Tribunal clearly barred itself from exercising its discretion on the merits of the application itself because of the purported results it would bring' and 'the Tribunal misunderstood its role in the statutory framework'. He submits that the Tribunal also erred in 'opting out' of making a decision to approve 'merely because neither the [Commission] nor the local government has done no [sic] recent planning.' Finally, in relation to this ground, Mr Bormolini submits that the Tribunal 'should not decline an application for subdivision approval in circumstances where the local planning scheme currently does not injunct the approval in any way at all.'
82 In my view, the Tribunal did not err in law in any of these respects. As noted earlier, the reasons for determination of the Tribunal must not be read minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or phrasing. Mr Bormolini seeks to read the Tribunal's reasons in precisely such an impermissible manner.
83 The Tribunal did not require that rezoning first occur before it could exercise its discretion in relation to the proposed subdivision. Nor did the Tribunal 'bar itself' from exercising its discretion on the merits of the application, because it said that it was not the role of the Tribunal on review 'to replan this suburb'. Rather, in the exercise of planning discretion, the Tribunal determined that the proposed subdivision warranted refusal in consequence of the density of residential development contemplated by the subdivision. It was open to the Tribunal to express itself in the manner in which it did. Clearly, the Tribunal considered as it was entitled to that the degree of departure from the minimum and average site area per dwelling for residential development purposes contemplated by the proposed subdivision was so significant as to warrant refusal, given that there was no cogent reason to depart from the planning policy referred to earlier, and approval of the proposed development would set an adverse planning precedent. The Tribunal did not fail to, or bar itself from, exercising a planning discretion. Rather, it exercised a planning discretion and decided, in the circumstances of the case, that the subdivision application warranted refusal. As is clearly apparent from [58] of the reasons, in exercising its planning discretion, the Tribunal carefully considered whether the planning policy referred to earlier should be departed from in the particular circumstances of the case. However, it determined that there was no cogent reason to depart from the application of the relevant planning policy to the degree necessary for approval of the proposed subdivision. As noted earlier, the proposed subdivision involves the creation of lots significantly smaller in area than the minimum and average site area per dwelling prescribed for development purposes by the Codes in relation to the development of land coded R17.5. The Tribunal's decision in this regard was reasonably open to it. No error of law is disclosed.
84 Furthermore, the Tribunal plainly did not misunderstand its role in the statutory planning framework. It did not consider that it had to replan the density of the suburb in order to exercise a discretion in relation to subdivision approval. Quite to the contrary, the Tribunal clearly understood that its role in this proceeding was one of planning assessment, not strategic planning. The Tribunal considered, in the exercise of planning discretion, that the residential density contemplated by the proposed subdivision was so great that it was well beyond the contemplation of the current planning framework, hence, the need 'to replan this suburb' in order for Mr Bormolini's proposed subdivision to be approved in the exercise of discretion. No error of law is disclosed.
85 Similarly, the Tribunal did not 'opt out' of making a decision to approve 'merely because neither the [Commission] nor the local government has done no [sic] recent planning'. While it is correct that the local planning scheme does not preclude approval of the proposed subdivision, the residential density contemplated by the Scheme and the planning framework generally is a relevant and material consideration in the exercise of planning discretion as to whether a particular subdivision application should approved. If by the words 'the local planning scheme currently does not injunct approval in any way at all' Mr Bormolini means, as he appears to, that TPS 40 and the density coding of the site is not relevant to the assessment of the proposed subdivision, then, for reasons set out earlier, his submission is incorrect and fundamentally misconceives orderly and proper planning in relation to residential subdivision control and approval.
Ground 10 'As to the question of precedent, the Tribunal erred in law:
a. (at para. 63) by purporting that (earlier versions) of the RDC applied to examples of earlier small lot subdivisions in the TPS 40 area,
b. (at para. 64) by requiring that the examples of earlier small lot subdivisions in the locality demonstrate inconsistency with TPS 40,
c. (at para. 65) by tying 'undesirability' of the precedent to:
i. the RDC,
ii. a misconceived need to amend TPS 40 before orderly and proper planning could occur[,]
d. by elevating a precedent to be a basis to dismiss the application'
86 Ground 10 is very confusing. It also appears to involve a challenge to findings of fact, rather than to seek review upon a matter involving a question of law.
87 At [63] of the reasons, the Tribunal addressed Mr Bormolini's reference to examples of lots less than 500m² in the locality. The Tribunal said that several of the cases referred to by Mr Bormolini 'were shown to be approvals granted when versions of the Codes between 1985 and 1991 did not stipulate a minimum lot size for grouped dwellings under the R17.5 coding' and that 'there was a transition period for similar average lot densities which was not removed form the Codes until 2008'. The planning context in which other smaller allotments were created was certainly relevant in assessing the significance of those allotments in the exercise of planning discretion in relation to the proposed subdivision. Paragraph [63] of the reasons involves a factual assessment and does not involve any error of law.
88 At [64] of the reasons, the Tribunal expressed the finding that the existence of smaller lots in the locality did not establish 'a pattern for lot size approvals inconsistent with TPS 40, that is sufficient to be used as the basis for supporting subdivisions such as now proposed.' This is a finding of fact that was clearly relevant to the assessment of the significance of the existence of smaller lots in the locality in terms of the exercise of planning discretion. Contrary to Mr Bormolini's submission, the Tribunal did not, at [64], require that 'the examples of earlier smaller subdivisions in the locality be inconsistent with TPS 40 in order to demonstrate a basis for permissibility of the subject subdivision …'. Rather, the Tribunal found that the smaller lots did not establish a pattern of lot sizes inconsistent with the lot sizes contemplated by the density coding of the site under TPS 40 which could potentially be a cogent reason to depart from planning policy and approve the proposed subdivision.
89 Paragraphs (c) and (d) of Ground 9 seek to challenge the Tribunal's determination that approval of the proposed subdivision would involve an 'undesirable' precedent. As I held in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) at [74], adverse planning precedent 'is a relevant consideration in a planning assessment' if the following circumstances are met:
(1) That the proposed development or subdivision is not in itself unobjectionable; and
(2) That there is more than a mere chance or possibility that there may be later undistinguishable applications.
90 At [65] of the reasons, the Tribunal clearly found that the proposed subdivision is not in itself unobjectionable 'because, as found above, TPS 40 imposes an R17.5 density coding on the site and the locality, the lots created would vary too greatly from the R17.5 standards of the Codes, the planning objective of increasing residential density in the metropolitan region does not assist in the circumstances of this individual proposal, and the subdivision would be inconsistent with the requirements of orderly and proper planning.' For reasons given earlier, the reference by the Tribunal in its reasoning to the residential density code and to the degree of departure from the minimum and average site area per dwelling prescribed for residential development purposes by the Codes contemplated by the proposed subdivision did not involve any error of law.
91 Finally, although not raised by Ground 10 itself, Mr Bormolini submits that the Tribunal erred in law by 'failing to address at all whether there as [sic] a more than a mere chance of similar applications coming before the [Commission] as a result of approval of the application before it.'
92 Although the Tribunal did not make an express finding at [65] of the reasons in relation to the second circumstance identified in Nicholls at [74] that must be met in order for adverse planning precedent to be a relevant consideration, at [60] of the reasons the Tribunal accepted the calculation by the expert town planning witness called by the Commission that the average lot size in the street block is 948m², which it said reflects a density of about R10, and, at [61], characterised the locality as being 'in transition'. A two lot subdivision of an allotment with an area of 948m² would result in an average lot size of 474m², which is approximately 17% less in area than the average lot size prescribed for development of a single house or grouped dwelling by Table 1 of the Codes on land coded R17.5. There is, therefore, plainly more than a mere chance or possibility that there may be later undistinguishable applications for subdivision if the proposed application is approved. In determining, at [65], that approval of the proposed subdivision would set an adverse planning precedent, the Tribunal clearly formed the view that there is more than a mere chance or possibility that there may be later undistinguishable applications. This view was reasonably open.
93 The Tribunal did not err in law in respect of Ground 10.
Conclusion
94 Mr Bormolini has not made out any of the 10 grounds for review. The application for review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.
Orders
95 The Tribunal makes the following orders:
1. The application for review by a judicial member is dismissed.
2. The determination of the Tribunal made on 15 July 2014 in DR 406 of 2013 is affirmed.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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