BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION - [2014] WASAT 88

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BORMOLINI and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 88

MEMBER: MR J JORDAN (MEMBER)

HEARD: 16 APRIL 2014

DELIVERED : 15 JULY 2014

FILE NO/S: DR 406 of 2013

BETWEEN: MATTHEW JOHN BORMOLINI
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Corner lot Residential zoning State Planning Policy 3.1 Residential Design Codes of Western Australia 2013 Whether R17.5 density coding applicable to site Codes relevant to determination of subdivision application Average and minimum lot size requirements Design principles Variation to minimum lot area - Exercise of discretion Application of policies directly relevant to subdivision Relevance of general policies related to housing density Relevance of local character Orderly and proper planning - Precedent

Legislation:

City of Canning Town Planning Scheme No 40, cl 5.2(a), cl 5.3.1, cl 5.4.1, cl 5.4.1.2, cl 5.4.1.4, cl 5.4.1.6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(1)
State Planning Policy 3.1 Residential Design Codes of Western Australia 2013, cl 1.2, cl 1.3, cl 5.1, cl 5.1.1, Pt 5

Result:

Application for review dismissed
Refusal of Western Australian Planning Commission endorsed

Summary of Tribunal's decision:

Proposed was the subdivision of a residential zoned corner lot into three lots of 438m² each.
The Tribunal determined that the site had a density coding of R17.5 under the local planning scheme. The respondent considered that the proposed lot sizes were too small compared to the average and minimum lot sizes for R17.5 coded land, and subdivision would have an adverse impact on the local streetscape, would be detrimental to the amenity of the locality, would be in conflict with the intent of the local planning scheme and would set an undesirable precedent for subdivision of other lots without the appropriate planning framework being in place.
The applicant argued that the proposed subdivision was an acceptable departure from minimum lot size for the density coding, would satisfy sufficient standards to be consistent with the existing streetscape and was a step towards achieving the planning goals for the locality and wider area consistent with the planning policies in place.
The Tribunal found that the proposed lots would vary too greatly from the standard R17.5 density coding, that the policies and strategies with the planning objective of increasing residential density in the Metropolitan Region did not assist in the circumstances of this individual proposal, that the subdivision would be inconsistent with the requirements of orderly and proper planning and that an undesirable precedent would be established.
The Tribunal decided to dismiss the application for review.

Category: B

Representation:

Counsel:

Applicant: Mr I McKeller and Ms K McKeller (Acting as Agents)
Respondent: Mr I Repper

Solicitors:

Applicant: Civil Technology (Civil Engineers, Project Managers)
Respondent: State Solicitor's Office

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Sin-Aus-Bel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter involved an application by Mr Matthew John Bormolini (applicant) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of the refusal by the Western Australian Planning Commission (respondent or Commission) to grant approval for the subdivision of No 2 (Lot 89) Holmes Street, cnr Tribute Street West, Shelley (site) into three lots.

Site and locality

The site has an area of 1,314m² with a frontage of 26.15 metres to Holmes Street, a frontage of 35.22 metres to Tribute Street West and a truncation of 8.53 metres on the street corner. The site is flat and currently developed with a two storey single dwelling which would be demolished to facilitate subdivision.
Shelley is a long established residential locality with an irregular lot size pattern resulting from the resubdivision of many lots on a gradual basis over many years. Most lots are greater than 500m², but there are some of a smaller area and a number greater than 1,000m². Most lots are developed with single houses, with a small number of grouped dwelling developments throughout the locality, some of which are on battleaxe lots.
The site is in an elongated mostly residential area between Leach Highway to the southeast and the Canning River to the northwest. The site is approximately 170 metres from the foreshore reserves of the Canning River and there is a local shopping centre about 140 metres to the east along Tribute Street West.

Planning framework

The site is zoned Residential under the City of Canning Town Planning Scheme No 40 (TPS 40) and Urban under the Metropolitan Region Scheme. Clause 5.4.1.2 of TPS 40 provides that, unless otherwise provided for in TPS 40, the development of land for any of the residential purposes dealt with by, what is now the 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:
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 brown-striped areas and brown borders.
The applicant questioned whether there was a code density number applicable to the site, because the relevant 'Scheme Map' of TPS 40 available on the City of Canning website did not include a brown border or brown hatching. During the course of the hearing, the respondent produced an authorised copy of the relevant TPS 40 Scheme Map, which included the site, prepared when TPS 40 was gazetted in 1994. The map showed the site was within a brownstriped area within a brown border with the density number of R17.5 superimposed. The Tribunal was satisfied that the R17.5 density code was, and remains, applicable to the site.
Table 1 of the Codes specifies that for the R17.5 coding for a single house or grouped dwelling, the minimum site area per dwelling is 500m², the average site area is 571m² and the minimum frontage is 12 metres. It is relevant that in respect to the site area, cl 5.1.1 of the Codes allows for up to 20m² to be added to the area of a lot with a corner truncation for the purposes of assessing compliance with Table 1.
Clause 1.2 and cl 1.3 of the Codes state:
1.2Purpose of the R-Codes
The purpose of the R-Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia.
1.3General objectives of the R-Codes
The R-Codes have the following objectives.
1.3.1Objectives for residential development
(a)To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives.
(b)To encourage design consideration of the social, environmental and economic opportunities possible from new housing and an appropriate response to local amenity and place.
(c)To encourage design which considers and respects heritage and local culture.
(d)To facilitate residential development which offers future residents the opportunities for better living choices and affordability.
Clause 5.1 of the Codes sets out the following objectives:
(a)To ensure that residential development meets community expectations in regard to appearance, use and density.
…
(e)To ensure that development and design is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing a transition, development achieves the desired future character of the area identified in local planning framework.
Part 5 of the Codes includes a heading 'Design Principles' which states:
Development demonstrates compliance with the following design principles (P)
5.1.1Site area
P1.1Development of the type and density indicated by the density code designated in the scheme.
P1.2The 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.
P1.3The 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.
The respondent's Development Control Policy 2.2 Residential Subdivision (DC 2.2) states:
1.Introduction
This policy sets out the WAPC's requirements for the subdivision of land into residential lots. It is closely related to the site area per dwelling standards contained in the R-Codes and to other WAPC policies outlined above. It is intended that, when read together, all policies create a flexible framework for the use of statutory planning powers, within which the creation of a wide range of housing types and residential environments is possible.
2.Policy Objectives
•To establish a consistent and coordinated approach to the creation of residential lots throughout the State.
•To adopt criteria for residential lots which will ensure that each lot is provided with a suitable level of amenity, services and access.
•To facilitate the supply of residential lots of a wide range of sizes and shapes which reflect the statutory provisions of local planning schemes, the availability of reticulated sewerage and the need for frontage to public roads.
…
3.1General Requirements
…
3.1.3All new residential lots shall, in addition to compliance with the general requirements for subdivision of land, be:
•Capable of development in accordance with the R-Code density assigned to it by local planning schemes, together with any local variations that may apply.
…
3.2Lot Sizes
3.2.1Generally, the minimum lot size and frontage requirements of the relevant R-Code will form the basis for the subdivision of residential land. Lot sizes greater than the specified minimum will also be considered unless the WAPC, having regard for the reasons for the selection of the particular R-Code and any commitments made to service infrastructure, considers that uneconomic use of services would result.
…
3.2.3In existing residential areas, the WAPC will only consider subdivision or survey-strata 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 R-Codes, or elsewhere in the R-Codes, where the following criteria are met:
Site Area Variations to the Average Lot Size Only
•All lots in the subdivision meet the minimum lot size requirements;
•The variation 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 applicant has provided information that demonstrates the variation will have a beneficial outcome for the community, or the WAPC forms the opinion that it will have a beneficial outcome for the community.
Site Area Variations to the Minimum and Average Lot Size
•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 lot size 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 applicant has provided information that demonstrates the variation will have a beneficial outcome for the community, or the WAPC forms the opinion that it will have a beneficial outcome for the community.
A 'beneficial outcome for the community' could include one or more of the following:
•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 (e.g. corner lots or lots with front and rear frontage);
•Overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature (e.g. past or proposed excision for an electrical substation or service easement, irregular boundary, or a distinct change in existing ground levels);
•Allow land to be developed with housing of the same type and form as land in the vicinity, which would not otherwise be able to be developed;
•Achieve specific objectives of the local government's local planning framework.
In considering variations, the WAPC will have regard to the recommendations of the local government.
Where a local government objects to a variation, the objection should be supported by reasons with reference to the criteria set out above.
Where a local government objects to a variation and the WAPC is of the view the application should be supported, further consultation will be undertaken with the local government before determining the application.
The parties also identified as relevant to the consideration of this matter the following documents:
•State Planning Policy No 1 State Planning Framework Policy (Variation No 2) (SPP 1);
•State Planning Policy No 3 Urban Growth and Settlement (SPP 3);
•Liveable Neighbourhoods (2009) (Liveable Neighbourhoods); and
•Directions 2031 and Beyond (2010) (Directions 2031).

Proposed subdivision and the refusal

The site has an area of 1,314m². The application was to subdivide the site into three lots, each of 438m². One lot would have frontage of 13.7 metres to Tribute Street West and the two other lots would front Holmes Street; one lot would have a frontage of 15.69 metres, and the other a frontage of 10.46 metres but would also include the truncation.
The respondent refused the application for the following reasons:
1.The proposed subdivision does not comply with the Western Australian Planning Commission's Development Control Policy DC 2.2 (residential subdivision), provisions of Statement of Planning Policy No 1 (variation No 2), the Residential Design Codes and the City of Canning Town Planning Scheme No 40 by reason that the proposed lots do not fulfil the minimum and average lot size requirements for the R17.5 density code as specified in Table 1 of the Residential Design Codes.
2.Approval to the subdivision would set an undesirable precedent for the further subdivision of other lots of a similar size in this locality which would undermine the objectives and provisions of the City of Canning's Town Planning Scheme No 40 for lots subject to the same density coding.

Issues

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.

Discussion

Whether the Codes are relevant to the determination of the proposed application for subdivision

As stated above, the Tribunal is satisfied that the effect of cl 5.4.1 of TPS 40 and the Scheme Map is that the Codes are applicable to the site and the site has a density coding of R17.5. 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.
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].
It was the applicant's contention that the 'fundamental link' between Table 1 and the Codes does not apply to 'any' subdivision application, but merely allows the respondent to consider whether the lot size of a potential subdivision will be suitable for development under the R17.5 density code.
Mr David Maiorana, a planner called as a witness by the applicant, explained 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.
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 applicant made reference to the subdivision being approved in Landpark, but the Tribunal notes that in Landpark, Senior Member Parry, as he then was, at [46] to [51] referred to the 'particular and somewhat unusual circumstances of this case' and listed four reasons for allowing the subdivision. The reasons related to the history of subdivision for the subject land, the lot size and settlement pattern in the locality and the acceptable impact of the development of the lots on the streetscape, and because there would be no loss of natural vegetation in the R2.5 coded locality.
In the matter currently before the Tribunal, the appropriate reference is to cl 5.4.1.4 of TPS 40 and the density coding is R17.5. Comment on subdivision is now found in the Explanatory Guidelines of the Codes, at page 30, where it states:
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.
Undersized lots, survey strata lots and strata lots
Previous subdivision of an area may have resulted in lots, survey strata lots and strata lots which are smaller than the minimum prescribed under a particular R-Code. Clause 5.1.1 C1.4iii recognises that despite this anomaly, the R-Codes should not restrict development of such properties for single houses, grouped dwellings or multiple dwellings.
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.
There is no dispute that discretion exists for the subdivision to be approved and, in this regard, policies guide the exercise of planning discretion but they do not replace it. In regard to the application, the parties referred to the finding of 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]:
[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 …
The Tribunal finds that the Codes are relevant to the consideration of whether the discretion is to be exercised and approval granted for the proposed subdivision.
This leads to consideration of the next issue, which is whether the subdivision would be consistent with the applicable statutory and policy framework.

Whether the proposed subdivision would be consistent with the legislative and planning policy framework that is applicable to the site

Clause 5.1.1 'Site area' of the Codes sets as a design principle 'Development of the type and density indicated by the density code designated in the scheme'. As found above, TPS 40 designates a density code of R17.5.
The application shows that the proposed lots would be less than the minimum 500m² site area per dwelling and average 571m² site area per dwelling standard for land coded R17.5 under Table 1 of the Codes. If the truncation is included in the area of the site, proposed Lots 101 and 102 would be 12.4% below the minimum site area for R17.5 and Lot 103 would be 8% below. The proposed lots would be 22.24% below the average site area designated in Table 1.
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.
TPS 40 also states, at cl 5.2(a), that the general objective for residential development is:
[T]o provide for a range of residential densities to encourage the provision of a wide choice of residential accommodation within the City[.]
Clause 5.3.1 of TPS 40 states:
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[.]
Mr Maiorana 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.
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.
The respondent referred to the 'Introduction' of DC 2.2 which states that DC 2.2 sets out the respondent's requirements for residential subdivision. The applicant referred to cl 3.2.1 of DC 2.2 saying that the expectation was that minimum lot sizes would be adhered to, not an average, and in this respect differs from the Codes. This is contradicted by the reference at clause 3.2.3 of DC 2.2 which, in addition, refers to average lot sizes.
In this respect, the Tribunal notes that the Codes do not restrict the variation to the minimum of one lot, singular. In the circumstances of a three lot subdivision and the principle found in Clive Elliot Jennings, the Tribunal has considered the planning merit of all lots having the proposed reduction from the minimum in Table 1.
Mr Maiorana argued that SPP 3 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.
These principles, he said, were also promoted in Liveable Neighbourhoods. Liveable Neighbourhoods 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.
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.
Ms Lee O'Donahue, a planner called by the respondent, said Directions 2031 placed emphasis on increased residential density at activity nodes, and indicated major and minor growth areas. Ms O'Donahue considered that in the absence of a housing strategy for Canning and related scheme amendments, TPS 40 was the appropriate document to determine if increased density would be appropriate in this area of Shelley.
Directions 2031 is a 'high level' strategic plan which sets out objectives for growth in the metropolitan and Peel regions. This includes accommodating growth in housing, and aspires to 47% of new dwellings to be provided by infill. The City of Canning is in 'Central Metropolitan Perth Subregion Quadrant 4'. Reference is made to 121,000 additional dwellings, with about half of these in specific major and minor growth areas, which do not include Shelley. The remaining dwellings would result from small scale incremental development by realising the potential contained in existing and future local government planning schemes and redevelopment projects.
The Tribunal recognises that Directions 2031 is a contemporary planning strategy which provides guidance to local governments when preparing local strategies and reviewing local planning schemes. Old local planning schemes, such as TPS 40, which was gazetted in 1994, are limited in their ability to deliver on the aspirations of Directions 2031, because of historically low density codes.
Directions 2031, at page 77, states:
… A particular characteristic of the sub-region is the dominance of the traditional grid form of neighbourhood subdivision, which provides important opportunities for targeted infill development and redevelopment to meet changing community needs. The 'blanket' up-coding of large areas of the inner suburbs is not favoured, as it is unlikely to enhance the character of neighbourhoods. …
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.

Whether, if the application for subdivision is not consistent with the applicable policy framework, it should nevertheless be approved

The first of the items listed in this regard is the extent of the proposed variation from the R17.5 density code being sought for the proposed subdivision.
Proposed Lots 101 and 102 would be 12.4% smaller and Lot 103 8% smaller than the minimum site area per dwelling for the R17.5 coding in Table 1 of TPS 40. As set out above, the Codes, at cl 5.1.1 P1.2, have as a design principle the potential for a variation of the minimum site area of 5%.
The Tribunal notes that the proposed density of development that would result from the subdivision would be the equivalent of about a R22.5 coding compared to the R17.5 coding for the site under TPS 40.
The Tribunal considers that Directions 2031 does not assist in overcoming a residential density increase of this size. This is because, as found above, while density would otherwise be increased, Directions 2031 does not provide sufficient support for an ad hoc increase in residential density within a locality, such as would occur in this case. There is not, in this matter, particular circumstances or a history of subdivision and settlement pattern to support subdivision as in Landpark. The Tribunal considers this to be particularly so in circumstances where a precedent would be set, as discussed below.
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.
A second item listed is whether the subdivision would be consistent with the requirements of orderly and proper planning. In determining the planning merits of the application to subdivide, the Tribunal is required by the dictates of orderly and proper planning to give proper consideration to sound town planning principles and to both the statutory and nonstatutory planning instruments that set out the procedures to be followed and the planning objectives to be achieved.
The applicant argues that the proposed subdivision would be consistent with the intent of the planning objective of providing a range of residential accommodation (cl 5.2(a) and cl 5.3.1 of TPS 40) and, in achieving that, 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 Tribunal addressed these submissions in the discussion above, but would add that the site is included within an area that extends about 1.3 kilometres eastwest, between Leach Highway and the Canning River, which has a density coding of R17.5 under TPS 40. 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 R17.5/25. The Tribunal considers the TPS 40 zoning maps show where the City of Canning has planned for different residential densities to be located.
The Tribunal accepts that while there might be a variety of housing types in a street, such as single houses and group dwellings, it would not be orderly planning to provide a range of housing densities in the one street in conflict with the depicted pattern of density coding of TPS 40.
The Tribunal acknowledges that TPS 40 was first gazetted in 1994, but does not concede that this provides a basis for approving a subdivision that would increase residential densities in an R17.5 coded area to the equivalent of a locality with an R22.5 density coding.
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.
A third question in respect of the third issue was whether the proposed lot sizes would be consistent with those that are characteristic of the locality.
Ms O'Donahue calculated that the average lot size in the street block within which the site is located is 948m² and described a locality characterised by single dwellings surrounded by garden. This is a density of about R10. Photographs and plans produced by Ms O'Donahue supported this evidence.
The Tribunal is of the view, however, that the character in this area is not set, but is better characterised as a locality in transition. This is because the R17.5 coded area in which the site is located includes what is described as older housing 'dating from the 1960s and 1970s', as well as new dwellings. The maps of the locality provided in the respondent's documents show lots with the potential to be developed consistent with an R17.5 coding. The proposed lot sizes 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. The Tribunal considers that, rather than existing character, a more appropriate comparison would be whether the proposed subdivision would result in development consistent with the locality developed to an R17.5 standard, which is the density being promoted in TPS 40. 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.
A fourth question was whether the proposed subdivision would set a precedent. The Tribunal has formed the view that the approval of the subdivision would set a precedent.
The applicant referred to several examples of lots less than 500m² having been created in the locality. Ms O'Donahue provided an explanation of the circumstances that the respondent said distinguished the respective examples given. Three examples were for lots creating green titles and were within the 5% variation referred to in the Codes. Another example was related to the conversion of built strata to survey strata and, finally, several examples cited 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. Also relevant was that there was a transition period for similar average lot densities which was not removed from the Codes until 2008.
Notwithstanding the history of smaller lots having been created, the smaller lots do contribute to the development density of the locality. The Tribunal does not consider, however, that the existence of these lots establishes 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.
The consideration is whether the precedent that would be created by the approved subdivision would be 'undesirable'. The Tribunal is of the view that the precedent would be undesirable. This is 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.
The Tribunal has decided to dismiss the application for review.

Orders

The orders of the Tribunal are:
1.The application for review is dismissed.
2.The refusal of the Western Australian Planning Commission dated 25 October 2013 is endorsed.

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