Boterhoven De Haan and Western Australian Planning Commission
[2006] WASAT 27
•9 FEBRUARY 2006
BOTERHOVEN DE HAAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 27
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 27 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:515/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 9/02/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is dismissed and the decision under review is affirmed | ||
| B | |||
| PDF Version |
| Parties: | GARY BOTERHOVEN DE HAAN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Strata Title Grouped dwelling Residential Design Codes 2002 1991 Codes R20 Performance Criteria Acceptable Development Provisions Transitional provisions Undesirable precedent Planning merits |
Legislation: | City of Stirling District Planning Scheme No 2 Metropolitan Region Scheme Residential Design Codes of Western Australia 2002 Strata Titles Act 1966 (WA) Strata Titles Act 1985 (WA) Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a) |
Case References: | A & SJ Missikos and JR & R Gonzalez v Western Australian Planning Commission [2001] WATPAT 9 J & K Kyrwood v Western Australian Planning Commission [2002] WATPAT 15 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Weir, R and Anor v Western Australian Planning Commission [2003] WATPAT 66 Nil |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : BOTERHOVEN DE HAAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 27 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 9 FEBRUARY 2006 FILE NO/S : DR 515 of 2005 BETWEEN : GARY BOTERHOVEN DE HAAN
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Strata Title Grouped dwelling Residential Design Codes 2002 1991 Codes R20 Performance Criteria Acceptable Development Provisions Transitional provisions Undesirable precedent Planning merits
Legislation:
City of Stirling District Planning Scheme No 2
Metropolitan Region Scheme
(Page 2)
Residential Design Codes of Western Australia 2002
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA)
Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a)
Result:
Application for review is dismissed and the decision under review is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr S Colam (by leave)
Respondent : Mr MS Logan
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
A & SJ Missikos and JR & R Gonzalez v Western Australian Planning Commission [2001] WATPAT 9
J & K Kyrwood v Western Australian Planning Commission [2002] WATPAT 15
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Weir, R and Anor v Western Australian Planning Commission [2003] WATPAT 66
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review by Mr G Boterhoven De Haan to the State Administrative Tribunal (the Tribunal) arises from a decision of the Western Australian Planning Commission to refuse the subdivision of Lot 978 Gladman Way, Karrinyup, in the City of Stirling into two survey-strata lots.
2 The review required an analysis of the relevant provisions of the Residential Design Codes of Western Australia 2002 (Codes), and various planning documents, together with submissions relating to examples of precedent and the overall merits of the proposal.
3 In its analysis, the Tribunal could find no compelling planning reason or principle to set the provisions of the Codes to one side, and determined that the application for review should be dismissed and the decision of the respondent affirmed.
Introduction
4 The application for review by Mr G Boterhoven De Haan (applicant) dated 26 July 2005 arises from a decision of the Western Australian Planning Commission (WAPC) (respondent) on the 30 June 2005 to refuse the subdivision of Lot 978 (No 19) Gladman Way, Karrinyup (subject land) into two survey-strata lots of 444 square metres and 446 square metres with a common property lot of 1 square metre. The proposed lots include an additional 18 square metres for the corner truncation as allowed for under cl 3.1.2(A2)(i) of the Residential Design Codes of Western Australia 2002 (Codes) giving a total effective site area of 891 square metres.
5 The refusal was based on the following reasons:
"1. The proposed strata scheme does not comply with the Commission's Policy DC 1.3 'Strata Titles' and DC 2.2 'Residential Subdivision', provisions of Statement of Planning Policy No 1 (Variation No. 1), by reason that the resultant proposed Grouped Dwelling Lots would be below the average lot size of 450 [square metres] specified in the Residential Design Codes (2002) and the City of Stirling District Planning Scheme No. 2 for land coded 'R20'.
(Page 4)
- 2. Approval to the strata title application would set an undesirable precedent for the further subdivision of the surrounding lots."
6 The parties requested that the matter be determined on the papers.
Subject land
7 The subject land is described as Lot 978 contained on Diagram 7449, certificate of title volume 1280 folio 943. It has an area of 873 square metres.
8 The site is a corner location within Gladman Way and has street frontages of 34.20 metres and 10.06 metres with an 8.54 metre truncation. It is intended that the existing single storey brick and tile dwelling will be demolished and replaced by a single residential house on each of the two survey-strata lots.
Legislative framework
9 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Low Density Residential" with a density coding of R20 in the City of Stirling District Planning Scheme No 2 (DPS 2).
10 Under cl 1.1.6.2 of DPS 2 it states:
"The R-Codes shall be read in conjunction with the Scheme as if they form part of the Scheme. Except as otherwise provided for by the Scheme, the use or development of land for any of the residential purposes dealt with by the R-Codes shall conform to the provisions of the R-Codes."
11 The matter is covered under Statement of Planning Policy No 1: State Planning Framework Policy (SPP 1) which consolidates all existing State and regional policies, strategies and guidelines within a central framework providing a context for decision-making on land use and development. The policy has been formulated under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) and the Tribunal is required to have "due regard" to the policy provisions as required under s 61(1)(a) of the TPD Act).
12 The relevant policies relied on by the parties under SPP 1 include:
(a) Policy No DC 1.1 Subdivision of Land General Principles (DC1.1)
(Page 5)
- (b) Policy No DC 1.3 Strata Titles (DC 1.3)
(c) Policy No DC 2.2 Residential Subdivision (DC 2.2)
(d) Statement of Planning Policy (3.1) Residential Design Codes (2002).
13 Under cl 2 of DC 1.1 the policy objectives include the following:
(a) To control the subdivision of land within the framework of the relevant legislation and regulations;
(b) To ensure that all lots created have regard to the provisions of the relevant local government town planning scheme;
(c) To ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
14 Under cl 3.3.4 of DC 1.3 it states:
"In the case of the creation of vacant strata subdivision or survey-strata lots, the Commission will be required to be satisfied on a number of points as follows:
(a) The proposed lot or lots will not result in any conflict with any statutory requirements or provisions of a town planning scheme, including residential densities applicable to the land involved … ."
15 Policy DC 2.2 outlines the respondent's policy requirements for the subdivision of land. Clause 3.2.1 provides that:
"Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land."
16 The Codes, which replace the Residential Planning Codes of 1991 (1991 Codes), provide a comprehensive basis for the control, through local government, of residential development throughout Western Australia. "Table 1 – General Site Requirements" lists the various site requirements (minimum site area, etc) for the relevant "R" coding applicable to the subject land.
Respondent's position
17 The position of the respondent is best outlined in the Statement of Evidence of Mr MS Logan, dated 3 October 2005. He argues that:
(Page 6)
- (a) The Codes under Table 1 impose a minimum site area of 440 square metres and a minimum average site area of 500 square metres.
(b) The proposed lots have a minimum site area of 446 square metres and an average site area of 445.5 square metres which is 10.9% short of the minimum average site area of 500 square metres.
(c) Under cl 3.1.3 of the Codes a variation to the minimum site area may be allowed by the respondent under the performance criteria subject to the following:
(i) to be no more than 5% less in area than that specified on Table 1; and
(ii) to facilitate the protection of an environmental or heritage feature; or
(iii) to facilitate the development of lots with separate and sufficient frontage to more than one public street; or
(iv) to overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature; or
(v) to 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
(vi) to achieve specific objectives of the local government scheme and, where applicable, the local planning strategy.
The variation sought at 10.9% is greater than the allowable 5% and no other criterion applies with the possible exception of (iii).
(d) Under the acceptable development provisions of the Codes, cl 3.1.3 (A3)(v) provides:
"in the case of Grouped Dwellings in area Coded R20 at the time of the gazettal of the Residential Design Codes the average site area shall be 450 [square metres]."
(Page 7)
- As the proposed lots have an average site area of 445.5 square metres, they do not meet the 450 square metre requirement, and there is no allowance for variation under cl 3.1.3(A3)(v).
(e) Although under the acceptable development provisions the average site area of the proposed lots is only 1% below that specified in cl 3.1.3(A3)(v), the property owners in the immediate neighbourhood would have a reasonable expectation that the provisions of the operative scheme would be upheld.
(f) If the proposed lots were approved, they would be about half the size of other existing lots in the neighbourhood, would be markedly out of character with other properties and may act as an inducement for others with undersized lots to seek subdivision.
18 The applicant's position is outlined in a submission prepared by Mr Colam of Vision Surveys on 26 July 2005. It argues that:
(a) Although the proposed lots would be below the average lot size of 450 square metres, both lots would be above the minimum lot size of 440 square metres as stipulated in Table 1 of the Codes for an R20 coding.
(b) Although nearby strata developments comply with the average lot size, many - such as at the corner of Thomas Way and Rockcliff Avenue - create lots below the minimum stated in the Codes.
(c) Other nearby strata developments create a battleaxe lot, which means up to 100 square metres is lost for a driveway. The proposed development on a corner lot would have independent driveways.
(d) The respondent, and this Tribunal, have "unfettered" powers to approve subdivisions.
(e) The City of Stirling supports the proposal subject to certain conditions which would be complied with.
(f) The subject land is close to a park and open bushland, the Karrinyup Shopping Centre, public transport and schools, and being on the highest point of the street, would not affect the views of neighbours.
(Page 8)
- (g) Numerous lots in the nearby subdivision of Ocean Rise have lots of less than 440 square metres.
(h) On the opposite side of Gladman Way is the Chrystal Halliday Nursing Home which has numerous units devoted to independent living and high density.
(i) The proposed subdivision has merit, and discretion should be exercised to approve it.
Planning issues
19 In this case, the applicant seeks a concession to the acceptable development provisions of cl 3.1.3(A3)(v) of the Codes and uses some of the performance criteria of cl 3.1.3 to support the argument. Matters of precedent are raised, as are the overall merits of the proposal.
Codes and DC 2.2
20 The Codes require all residential development to conform to their provisions and are formulated as follows:
(a) first, the aim or "objective" of the design element is stated;
(b) second, a set of "performance criteria" is provided that must be satisfied if the "objective" is to be met; and
(c ) third, a set of "acceptable development" provisions related to the performance criteria is established.
21 As stated under cl 1.1.2 of the Codes:
"The Acceptable Development provisions contained in the Codes provide a means by which development can be 'deemed to comply' and therefore provide a speedy and certain path to approval, while the Performance Criteria allow the possibility of other, perhaps more innovative, ways of achieving an acceptable outcome."
22 In this matter, the applicant has chosen the acceptable development provision path in order to take advantage of a special transitional provision (cl 3.1.3(A3)(v)) which states:
"v. in the case of Grouped Dwellings in areas Coded R20 at the time of the gazettal of the Residential Design Codes the average site area shall be 450 [square metres]."
(Page 9)
23 The advantage to the applicant of this provision is that Table 1 of the Codes specifies a higher minimum average site area of 500 square metres.
24 The matter is further explored under cl 3.2.3 of DC 2.2 in relation to site area variations involving grouped dwellings in transition areas where the 1991 Codes apply.
"Because the purpose of the transition provisions is to retain the same development rights that existed under the 1991 Codes, and it was not possible to vary the average lot size requirement for Grouped Dwellings under the 1991 Codes, there is no scope for any variation to the average lot size for Grouped Dwellings on land subject to the transition provisions under Acceptable Development Provisions 3.1.3 A3 iv or v on p.45 of the R-Codes."
25 The Tribunal would therefore agree with the respondent that as there is no allowance for variation to the 450 square metre requirement of cl 3.1.3(A3)(v), the average site area proposed at 445.5 square metres does not comply.
26 A further point argued by the applicant is that the proposed lots both exceed the minimum site area of 440 square metres for an R20 Coding in Table 1. This is undoubtedly true, but if the applicant seeks to invoke Table 1, it is that Table that also requires a minimum average site area of 500 square metres, and at 445.5 square metres average, the proposal is clearly deficient.
Precedent
27 In his further submission dated 12 October 2005, the applicant argues that nearby lots are generally between 720 square metres and 820 square metres and there would be limited opportunities for owners to benefit if this subdivision was approved. Accordingly, the undesirable precedent argument of the respondent was deemed invalid.
28 The applicant argues the effect of Aspen v State Planning Commission (Unreported, WATPAT No 13, 21 October 1998) where the then Chair, Mr RJM Anderson QC, said (at page 10):
"The precedent argument is not usually treated by this tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for
(Page 10)
- similar kinds of developments should not be a reason why the appeal should be dismissed … ."
29 What the applicant appears to be doing is to put the Tribunal's mind at rest by arguing that an approval in this case would not necessarily lead to a spate of similar applications but then proceeds to list a number of nearby properties in Wheeler Road and Thomas Way where grouped dwellings, duplex and battleaxe duplex developments have taken place and where neither the minimum nor average lot size criteria are satisfied. One example is the case of 2A and 2B Thomas Way where the existing duplex development has a lot area of 905 square metres. However, one lot is 387 square metres and falls below the minimum lot size designated in Table 1 of the Codes.
30 In his submissions Mr Logan argues:
(a) The lots (nos 1 and 2) were created by way of a conversion to a survey-strata scheme on strata plan 4744 under the provisions of "Division 5. Conversion of strata schemes to survey-strata schemes of Part III of the Strata Titles Act1985 (Division 3)".
(b) Survey-strata plan 4744 was created in 1997 under provisions that only applied to strata schemes registered before 1 January 1998 and the regulatory framework is different to that under which the subject application is made. In any event, the average lot size is above 450 square metres required under cl 3.1.3(A3)(v) of the Design Codes.
31 In further submissions Mr Logan argues:
(a) Other examples quoted by the applicant (strata plan 4968, 5825, 4626, 4262 and 7410) provided for an existing building to be divided into two lots pursuant to the provisions of the Strata Titles Act 1966 (WA). They were not subject to survey-strata.
(b) Several of the examples quoted by the applicant were in areas coded R25 or R30.
32 In response to these submissions, the applicant contends that it is irrelevant whether a lot is a built strata or survey-strata as the option is available to convert to survey-strata. This would create lots smaller than those proposed.
(Page 11)
33 A particular example of interest to the Tribunal, one cited by the applicant, was at the corner of Ewan Street and Sydenham Road in Doubleview on strata plan 44487 where two lots coded R20 were created at 446 square metres and 429 square metres. The matter was not addressed by the respondent and so the particular circumstances are not available to the Tribunal. In any event, the example is outside the locality of this review.
Merits of the proposal
34 The applicant argues:
(a) The land is within 400 metres of the Karrinyup Shopping Centre with good public transport to the city.
(b) There are public and private schools close by.
(c) The land is in close proximity to the beach, open space and a nearby sports centre.
(d) The subdivision would result in an improvement to the streetscape by way of improved maintenance.
(e) The subdivision would facilitate the development of lots with separate and sufficient frontage to more than one public street.
(f) The proposal would not adversely affect neighbouring properties or their views towards the ocean to the west.
35 From the viewpoint of the Tribunal, there can be no argument that the subject land is strategically located near a major shopping complex comprised of both public and private facilities. Also, its proximity to public transport and open space may be conceded.
36 An examination of attachment 23 to the applicant's submission shows an extract of the City of Stirling DPS 2 marked "Planning Management Area 5 Scheme Plan". This shows the subject land towards the northeastern extremity of the R20 coding and in close proximity to the R30 coding to the east. Large areas of R30 coding are provided for both north and south of Karrinyup Road and in close proximity to the Karrinyup Shopping Centre.
37 Again, from the papers available to this Tribunal, it is clear that residential density has increased in the locality by way of built strata, survey-strata and battleaxe subdivisions. This trend will probably
(Page 12)
- continue in line with the appropriate density codings and where existing owners wish to maximise on their residential investments.
Assessment of proposal
38 This review requires an assessment of the Codes, precedent and the merits of the proposal.
39 The Codes are a statement of planning policy made under s 5AA of the TPD Act and the Tribunal, under s 61 of the TPD Act, is required to have due regard to them in the determination of this application.
40 The matter was explained in Weir, R and Anor v Western Australian Planning Commission [2003] WATPAT 66:
"As the principal guide to residential design, the Codes must be given the greatest weight in determining subdivision design."
41 The merits of a proposal was introduced in Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 when it was explained that the Codes do not of themselves govern the outcome of an application for subdivision.
42 Both the Codes and the merits of a proposal were brought together in J & K Kyrwood v Western Australian Planning Commission [2002] WATPAT 15 and explained in this way (at [9]):
"The duty of all planning authorities is to make a proper planning decision even if this is a conflict with the requirements of Table 1."
43 In the matter of A & SJ Missikos and JR & R Gonzalez v Western Australian Planning Commission [2001] WATPAT 9, in the City of Stirling, a cautionary note was sounded in assessing the Codes as opposed to the merits of a proposal (at [25]):
"A thorough review of Residential Density Codings within the City of Stirling was undertaken commencing in April 1994 concluding with formal approval to Amendment No 248 in June 1996. That review led to the recoding of some areas, but no change to the R20 Code applying to the site the subjective of this appeal, and surrounding lots. That process of review involved several opportunities for public submission which is inherent in any scheme amendment. Whilst we do not suggest that a departure from the minimum or average lot sizes
(Page 13)
- prescribed by the R Codes for the purpose of a subdivision application could not be made by the Commission (and thus the Tribunal on appeal) in appropriate circumstances, we are of the view that a departure from the requirements for the area under the relevant Town Planning Scheme should be only made where some compelling planning reason exists. There is otherwise the potential for existing planning controls to be gradually subverted without the benefit of the consultative process necessary to bring about scheme amendment."
44 In this particular case the subject land is 873 square metres to which an allowable concession of 18 square metres has been added under the provisions of cl 3.1.2A2 of the Codes. Although an allowable concession, it must be pointed out that the 18 square metres is not actually available for building development.
45 A further concession that is granted is in respect of cl 3.1.3(A3)(v) where an average site area of 450 square metres is allowed. This concession applies to the subject land because it was coded R20 under the 1991 Codes and before the 2002 Codes came into effect.
46 What is now being sought, after allowing for the 18 square metre concession, is a further concession under the provisions of cl 3.1.3(A3)(v). However, as is made clear above, at an average site area of 445.5 square metres, the proposal does not comply.
47 It must also be said that the Codes, although allowing for a 440 square metre minimum site area for grouped dwellings under the R20 coding, have increased the minimum average from the previous 450 square metres under the 1991 Codes to the higher figure of 500 square metres. In other words, the emphasis under the 2002 Codes is towards a higher average site area per dwelling figure than that which previously existed, and in that respect the proposal is clearly deficient.
48 The arguments on precedent have been noted by the Tribunal but in almost every case raised by the applicant the relevant coding was either R25 or R30 or the existing developments on-site were of duplex form or the legislative circumstances under the Strata Titles Act 1966 were different. The examples relating to battleaxe subdivisions carried little weight with the Tribunal.
49 On the planning merits of the application this body would concur with the reasoning of the applicant regarding the close proximity of both public and private services and facilities and infrastructure. However, it is
(Page 14)
- this reasoning which would in all probability have influenced the objectives of DPS 2 in locating R20, R25, R30 and R40 coding both north and south of Karrinyup Road within Planning Management Area 5. There is certainly no argument by the applicant that the grouped dwellings proposed would help fulfil an unmet demand in the locality, as the areas coded R20 and above are most extensive and provide many opportunities for grouped dwellings to occur.
50 What can be said, as argued by the applicant, is that the opportunity for subdivision in accordance with the R20 coding is limited in Gladman Way because lots are mainly in the 720 square metre to 820 square metre range and would not qualify for subdivision under R20 of the Codes. Although this is undoubtedly true, it only lends strength to the argument that it would be more appropriate that a higher coding than R20 exist in Gladman Way before the subdivision of lots, including the subject land, could be justified.
51 In this respect, it must be pointed out that the Codes are based on a properly and carefully considered rationale and although a variation sought may, as in this case, be only minor there needs to be a compelling planning reason or planning principle in order to set their provisions to one side. In this case a compelling planning reason of sufficient merit has not been found by the Tribunal.
Orders
52 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
2. The decision of the respondent under review is affirmed.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
(Page 15)
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