BOYNTON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2018] WASAT 60

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   BOYNTON and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 60
MEMBER:   MS L EDDY (MEMBER)
MR J JORDAN (SENIOR SESSIONAL MEMBER)

HEARD:   17 APRIL 2018
DELIVERED          :   11 JULY 2018
FILE NO/S:   DR 224 of 2017
BETWEEN:   ALAN ROBERT BOYNTON
First Applicant
RICK HENDERSON BRUCE
Second Applicant
SANDRA HELEN BRUCE
Third Applicant
JOHN CECIL GOLDNEY
Fourth Applicant
ANNEKE PATRICIA HAMILTON
Fifth Applicant
NEVILLE PHILLIP HAMILTON
Sixth Applicant
IRENE WENDY JARZABEK
Seventh Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Four lot subdivision - No access to public dedicated road - Bushfire prone area - State Planning Policy 3.7 Planning in Bushfire Prone Areas - whether conflicts with local planning scheme - turns on own facts

Legislation:

Planning and Development Act 2005 (WA), s 135, s 138, s 142, s 143, s 241(1)(a), s 251(1), Div 1, Div 2, Div 3 Pt 10, Pt 14
Shire of Nannup Local Planning Scheme No 3, cl 4.5, Sch 2
State Planning Policy 3.1 - Residential Design Codes, App 1
Strata Titles Act 1985 (WA), s 4, s 25B(1), s 25B(2)

Result:

Decision of respondent to refuse to approve proposed subdivision affirmed
Application otherwise dismissed

Summary of Tribunal's decision:

The applicants together own land in Darradup as tenants in common. In order to access the site it is necessary to leave Brockman Highway and travel down an access track through Crown land. The site contains five existing dwellings on it, and the applicants wish to subdivide the site into four lots, three lots with a single dwelling and one lot with two dwellings within it. When they applied to the respondent for subdivision approval, the respondent refused to grant that approval. The applicants sought review of that decision in the Tribunal.
The main issues in dispute were whether the proposed subdivision should be approved where:

the proposed lots did not front onto a public road;
the information required by SPP 3.7 to accompany any subdivision application had not been provided; and
the proposed subdivision was in conflict with the provisions of the local planning scheme because each of the lots created by the proposed subdivision would contain a group dwelling within the meaning of the Scheme and group dwelling is an 'X' use under the Scheme.

The applicants submitted that although the site did not front onto a public road, the existing access road, Poison Swamp Road, was a road in relation to which the applicants had a legal right to continued, uninterrupted access. They also submitted that the fact of subdivision did not change the access arrangement. The Tribunal was not persuaded by either of these arguments and determined that in the circumstances of this case the proposed subdivision should not be approved because the proposed lots would not be guaranteed to have vehicular access from a public road.
In relation to bushfire, the Tribunal determined that it was not appropriate to approve the subdivision application absent information about bushfire risk and any mitigation measures required.
On the final issue, the Tribunal was satisfied that the proposed subdivision did conflict with the provisions of the local planning Scheme. However, it was also satisfied that the exemption to the prohibition on approving subdivision where there is such conflict contained in s 138(3)(c) of the Planning and Development Act 2005 (WA) applied. The Tribunal would, absent any other issue with the proposed subdivision, have approved the proposed subdivision despite the technical conflict with the local planning Scheme.

Category: B

Representation:

Counsel:

First Applicant	:	Mr I McKellar as agent
Second Applicant	:	Mr I McKellar as agent
Third Applicant	:	Mr I McKellar as agent
Fourth Applicant	:	Mr I McKellar as agent
Fifth Applicant	:	Mr I McKellar as agent
Sixth Applicant	:	Mr I McKellar as agent
Seventh Applicant	:	Mr I McKellar as agent
Respondent	:	C Chapman

Solicitors:

First Applicant	:	Civil Technology
Second Applicant	:	Civil Technology
Third Applicant	:	Civil Technology
Fourth Applicant	:	Civil Technology
Fifth Applicant	:	Civil Technology
Sixth Applicant	:	Civil Technology
Seventh Applicant	:	Civil Technology
Respondent	:	State Solicitor's Office

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

Adelaide City Corporation v Attorney General (SA) (1931) 45 CLR 517
Shire of Narracan v Leviston (1906) 3 CLR 846

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In March 2017, the applicants applied for subdivision of Lot 11864 Poison Swamp Road, Darradup (site) into four survey-strata lots. The site is a large lot that is currently jointly owned in four equal shares by the applicants as tenants in common. Mr Neville Hamilton and Ms Anneke Hamilton own one quarter share; Mr Rick Bruce and Ms Sandra Bruce own one quarter share; Mr John Goldney and Ms Irene Jarzabek own one quarter share; and Mr Alan Boynton owns one quarter share. There are currently five dwellings on the site and the proposed subdivision seeks to create four lots, three of which will have one of the existing single dwellings and one of which will have two of the existing single dwellings within it. There will also be a common property lot of 9564m² that provides an access leg across the frontage of the proposed lots.
On 8 June 2017, the Western Australian Planning Commission (Commission or respondent) refused the proposed subdivision for the following reasons:
1.The proposed subdivision, with respect to the inherent bushfire hazards and access constraints, is inconsistent with State Planning Policy No. 3.7 Planning in Bushfire Prone Areas (2015), which requires that the proposal is accompanied by a BAL contour map an assessment against the bushfire protection criteria requirements.
2.The proposed subdivision is inconsistent with Development Control Policy 1.1 Subdivision of Land General Principles (section 3.7), which requires that new lots are to be provided with direct frontage access to a constructed public road. Approval of the subdivision, in the absence of public road access to the lots, would be inconsistent with orderly and proper planning.
3.Approval to the subdivision would set an undesirable precedent for the subdivision of similarly constrained lots.
On 5 July 2017, the applicants applied to the Tribunal for a review of the respondent's decision pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act). That application was made within the time allowed by r 9 of the State Administrative Tribunal Rules 2004.
Section 4 of the Strata Titles Act 1985 (ST Act) provides that land may be subdivided into lots, or lots and common property, by the registration of a strata plan or a survey-strata plan. Section 25B(1) of the ST Act relevantly provides that the provisions of Div 1, Div 2 (other than s 141) and Div 3 of Pt 10 of the PD Act apply to the subdivision of land by a surveystrata plan. In addition, s 25B(2) of the ST Act requires that every survey-strata plan lodged for registration under the ST Act must have endorsed on it a statement that the approval of the Commission has been granted. Where no such statement is endorsed on the survey-strata plan, the Registrar of Tiles may nonetheless accept for registration such a plan if the plan is accompanied by a certificate from the Executive Officer of the Tribunal to the effect that a successful application has been made to the Tribunal for a review of the Commission's refusal or failure to give an approval and the proposed subdivision otherwise complies with the ST Act.
Divisions 1, 2 and 3 of Pt 10 of the PD Act contain a number of provisions that are relevant to this matter. Section 135 of the PD Act prohibits the subdivision of a lot without the approval of the Commission. Section 138(1) of the PD Act gives the Commission the ability to make any approval of subdivision subject to conditions. Section 138(2) of the PD Act requires the Commission, in giving an approval to subdivide, to have due regard to the provisions of any local planning scheme that applies to the land and provides that the Commission is not to give an approval that conflicts with the provisions of a local planning scheme. Limited exceptions to this prohibition are contained in s 138(3) of the PD Act. Section 142 of the PD Act provides for the Commission to receive objections or recommendations in relation to a proposed subdivision by the relevant local government, any public authority or utility services provider where the Commission is of the opinion that the proposed subdivision may affect the functions of any of those bodies.
Part 10 of the PD Act does not contain any provisions that allow for the review of the Commission's decision to refuse a proposed subdivision. Those provisions are contained in Pt 14 of the PD Act. Although the ST Act does not expressly state that Pt 14 of the PD Act applies in relation to subdivision by way of surveystrata, it is not necessary that it does so. The PD Act, and relevantly for this application, s 251(1) of the PD Act in particular, provides for the review to the Tribunal of a decision of the Commission to refuse to approve a plan of subdivision.
Relevantly to this application, when determining an application for review made in accordance with Pt 14 of the PD Act, the Tribunal is to have due regard to relevant planning considerations including any State planning policy which may affect the subject matter of the application: s 241(1)(a) of the PD Act.
If, in the opinion of the Commission, a plan of subdivision may affect the functions of local government, a public authority or a utility service provider, the Commission is to forward the plan to the entity so affected in order to obtain any objections or recommendations in relation to the proposed subdivision: s 142 of the PD Act
After considering any objection or recommendations received, the respondent may approve, refuse to approve or conditionally approve a subdivision application: s 143 of the PD Act

Site and locality

The parties agreed the following facts in relation to the site and its locality.
The site is approximately 28.8 hectares in area. The site is irregular in shape. The eastern and western boundaries substantially follow the course of the Blackwood River which abuts the western boundary of the site. The northern and eastern boundaries abut State Forest. The southern boundary abuts privately owned lots.
There are currently five dwellings on the site. The land is substantially cleared, but there is some remaining remnant of vegetation.
The site is accessed via Poison Swamp Road which connects to the site at the south-east boundary and traverses the State Forest to connect with Brockman Highway. Poison Swamp Road is of gravel construction and is not contained within a dedicated road reserve. No easement access to the site is registered on the Certificate of Title.
The Shire of Nannup (Shire) advised the respondent that Poison Swamp Road is a forestry track, located on land managed by the Department of Parks and Wildlife and is not a gazetted public road. The Shire also advised that the Council resolved to initiate dedication of the road at its meeting on 24 August 2017 subject to certain conditions, but has not indicated the timeframe in which the road will be dedicated.
The Department of Parks and Wildlife has indicated to the Shire that it is in agreement with Poison Swamp Road becoming a dedicated road.
The site is located within the Shire. It is approximately 24 kilometres west of the Nannup townsite.
With the exception of a special rural development to the east of the site, the surrounding land is extensively covered in remnant vegetation.
The site is within a designated bush fire prone area as defined in State Planning Policy 3.7 Planning in Bushfire Prone Areas (SPP 3.7).

Planning framework

The parties agree that the relevant planning framework is as follows.
The Shire of Nannup Local Planning Scheme No. 3 (LPS 3 or Scheme) was gazetted in 2007. The site is zoned 'Agriculture' under LPS 3. A single dwelling is a 'P' (permitted) use and a grouped dwelling is an 'X' (prohibited) use in the Agriculture zone.
Clause 4.5 of LPS 3 states:
Notwithstanding anything contained in the zoning table, the land specified in schedule two may be use for the specific use or uses that are listed in addition to any uses permissible in the zone in which the land is situated subject to the conditions set out in schedule two with respect to that land.
Note: an additional use is a land use that is permitted on a specific portion of land in addition to the uses already permissible in the zone that applies to the land.
Schedule 2 of LPS 3 provides for additional use A5, which applies to the site. Additional use A5 allows the site to be used for 'additional dwellings (to allow for a maximum of four dwellings)' subject to four conditions. Relevantly, conditions three and four state:
3.In considering any applications for subdivision of the land the local government's recommendation to the Commission will be to only support applications proposing a maximum of four lots with a minimum lot size of five hectares.
4.At the time of considering any applications for subdivision of the subject land the local government will consider requesting the Commission impose conditions addressing the following matters:
(v)upgrading of feeder road servicing the land; and
(i)the need for a fire management plan.
The Shire of Nannup Local Planning Strategy (Strategy) was endorsed by the respondent in 2007. The Strategy is to be read in conjunction with LPS 3 and sets out the long-term planning goals and principles for the Shire.
The relevant state planning policies include State Planning Policy 2.5 Rural Planning (SPP 2.5) and SPP 3.7. – Planning in Bushfire Prone Areas (SPP 3.7). The Guidelines for Planning in Bushfire Prone Areas (Guidelines) provide information to assist in the interpretation of the objectives and policy measures outlined in SPP 3.7.
In addition, the Commission's policies Development Control Policy 3.4 Subdivision of Rural Land (DC 3.4) and Development Control Policy 1.3 Strata Titles (DC 1.3) are relevant to the proposed subdivision.

Issues

Although the parties disagreed in relation to the proper wording of the issues that arise for determination in this matter, in substance they were not in dispute as to the nature of the issues. The main issues for determination relate to access to the site; bushfire and whether the proposed subdivision is consistent with SPP 3.7 and the Guidelines; and whether approval of the proposed subdivision would create an undesirable precedent.
The respondent submitted that there was also an issue as to whether the proposed subdivision is capable of approval having regard to s 138 of the PD Act.

Access to the site

The respondent submits that ensuring that all lots created by way of subdivision have access to a dedicated and constructed public road is a fundamental tenant of planning. This is because road access is necessary to connect to the wider locality and also provides the means by which service infrastructure is provided to the lots. It is submitted that in this instance, there is no legal access to the proposed lots from the public road network. Although there is a track (called Poison Swamp Road) that traverses the national park and connects the site to the Brockman Highway, there is no requirement on the Crown to keep that track open.
In addition, the respondent points to the Strategy, DC 1.1 and DC 1.3 as providing a strong policy basis to support the proposition that legal access to any newly created lot is required.
The applicants submit that Poison Swamp Road is presumed to be a dedicated road at common law on the basis that it had a long history of uninterrupted use and had been maintained and repaired at public expense: Shire of Narracan v Leviston (1906) 3 CLR 846; Adelaide City Corporation v Attorney General (SA) (1931) 45 CLR 517.
The difficulty with this argument is that the Tribunal has no jurisdiction to make a declaration on the status of Poison Swamp Road based on common law rights. Whatever the applicants' rights may, or may not, be in relation to the road, for the purposes of these proceedings, the Tribunal has to act on the basis that it is not a dedicated road and, unless or until a Court declares otherwise, the owner of the land could prevent access along Poison Swamp Road at will.
The applicants further submit that the subdivision of the site does not alter the position in relation to access to the site. As it currently exists, the site can only be accessed via Poison Swamp Road. Similarly, if the site is subdivided into four lots, those lots could only be accessed via Poison Swamp Road.
The Tribunal is not persuaded by this proposition for two reasons. Firstly, the Tribunal does not know what the relevant planning framework was at the time the site was created. However, the planning framework now in place does contain a policy objective of not creating new lots without access to a dedicated public road: cl 13.7 of the Strategy and cl 2 and cl 3.7 of DC 1.1. That policy has a proper planning purpose and is eminently sensible. Secondly, the fact that a lot has been historically created without legal access to a public road, which, on the face of it, is somewhat inexplicable, does not provide any basis to support a decision to create more lots that do not have any legal access to a public road. In other words, just because a decision has been made in the past is no reason, in itself, in the circumstances, to make the same decision now. There is no impediment on a planning basis, to the current arrangements on the site continuing, however, the applicants have applied to subdivide the site into four lots. In that context, it is not appropriate to ignore the planning framework currently in place simply because of the history of the creation of the site. The fact of the proposed subdivision is in itself a change to the site, in terms of the creation of additional lots. The proposed subdivision must be assessed in light of the current planning framework, including relevant policies: s 241(a) of the PD Act.
That the proposed subdivision, in relation to vehicle access, is not consistent with the Strategy and DC 1.1. is self-evident. However, it remains to consider whether there is reason to depart from policy in this case.
The planning consultants called by the parties, Mr Peter Wright and Mr Paul Bashall, disagree in relation to whether there was a reason to depart from policy in this case. Mr Wright is of the opinion that there was no reason to depart from the policy in this case and that the proposed subdivision should not be approved because the site did not have access to a dedicated road. Mr Bashall is of the opposite opinion.
Mr Bashall's reason for disagreeing appears to be based on his belief that the applicants have legal rights to uninterrupted access along Poison Swamp Road on the basis that it is a public road at common law: Exhibit 8. As stated earlier, this may, or may not, be the case. The fact is, the applicants have not to date commenced any proceedings for a declaration in relation to their rights with respect to continued access along Poison Swamp Road. Therefore, they have not, at least at this point in time, actually established any ongoing legal rights to continued access the site via Poison Swamp Road. Therefore, Mr Bashall's opinion on this topic is without foundation.
The Tribunal does accept that Poison Swamp Road is labelled as a road and has historically been kept open for use by any person wishing to access the site. The Tribunal also accepts that the respondent and the relevant department have indicated that it is planned for Poison Swamp Road to become a legally dedicated road.

However, local governments and government departments have been known to change positions. Both are subject to changes in leadership, which may result in different views or priorities which in turn may result in different policy or management decisions.
The fact remains that the applicants have not currently established any legal right capable of ensuring that Poison Swamp Road remains open, available and suitable for vehicles to obtain access to the site. There is no guarantee that the proposed new lots would have access to Brockman Highway. To approve a subdivision in those circumstances can only be described as poor planning. The fact that there are currently dwellings on the site and the applicants have to rely on Poison Swamp Road for vehicular access to the site, is no basis to depart from a sound policy position that has a clear, logical planning purpose and is consistently applied. Even absent such a policy position, the proposition that newly created lots, particularly in a rural area, must be connected to a public road in order to ensure vehicular access to the lots is, in the Tribunal's view, a matter of common sense.
Despite the current and historical fact of access via Poison Swamp Road to the site, the Tribunal is not satisfied that it is appropriate to depart from the policy position in the Strategy and DC1.1 in this case.

Bushfire

The respondent submits that as the applicants have submitted no information in relation to bushfire with the subdivision application, the proposed subdivision does not comply with SPP 3.7 and on this basis should be refused. In addition, the respondent submits that the access to the site is by a long cul-de-sac and as such approval of subdivision of the site would be inconsistent with SPP 3.7 and the Guidelines.
The applicants rely on Planning Bulletin 111/2016 (PB 111/2016) as a basis for taking a pragmatic approach to the requirements of SPP 3.7. The applicants submit that in this case, as the proposed subdivision does not result in an increase of development of the site, there should be no need to provide a Bushfire Attack Level (BAL) assessment or any other requirements specified in SPP 3.7
It is not in dispute that SPP 3.7 provides that any subdivision application to which policy measure 6.2 applies 'is to be accompanied' by (policy measure 6.4 of SPP 3.7):
a)a BAL Contour Map to determine the indicative acceptable BAL ratings across the subject site, in accordance with the Guidelines. BAL Contour Maps should be prepared by an accredited Bushfire Planning Practitioner;
b)the identification of any bushfire hazard issues arising from the BAL Contour Map; and
c)an assessment against the bushfire protection criteria requirements contained within the Guidelines demonstrating compliance within the boundary of the subdivision site.
It is also not in dispute that the proposed subdivision is one to which policy measure 6.2 of SPP 3.7 applies, and that the proposed subdivision was not accompanied by the information required by policy measure 6.4 of SPP 3.7.
Mr Wright states that the need to address bushfire hazard in the proposed subdivision application stems from (Exhibit 5, paragraph 46):
(a)The creation of new lots with new lot boundaries, which will impact on the need to address any bushfire hazard within the new boundaries;
(b)Protection of current development as required under clause 5 of SPP 3.7; and
(c)The potential for change/intensification of land use[.]
Mr Wright's view is that without the information required by SPP 3.7, the threat to human life and property from bushfires cannot be assessed and mitigation measures cannot be identified and implemented.
In Mr Wright's opinion, the proposed subdivision would allow for more intense development to occur as there are a number of permissible uses that could occur on each separate lot, whereas at present there is only a single lot. Mr Bashall was initially of the view that, as the proposed subdivision will not result in any increased development, there is no need for a BAL assessment to accompany the development application in this case. However, Mr Bashall agreed, upon questioning, that Mr Wright’s view was theoretically correct.
Mr Wright stated that, in the absence of further information, it was not possible to identify whether there would be any difficulty implementing required mitigation measures within the boundaries of each new lot.
No bushfire expert was called to give evidence by either party.
The applicants submit that the proposed subdivision does not give rise to any intensification of development on the site, does not increase the number of residents or employees, does not involve the occupation for employees on site and does not result in an increase in bushfire threat and therefore, having regard to PB 111/2016, there is no need to comply with the requirement in cl 6.4 of SPP 3.7 in this case.
The policy intent of SPP 3.7 is stated at Exhibit 2, page 283:
The intent of this policy is to implement effective, risk-based land use planning and development to preserve life and reduce the impact of bushfire on property and infrastructure.
The policy objectives of SPP 3.7 are identified in cl 5 of SPP 3.7 (Exhibit 2, page 284):
The objectives of this policy are to:
5.1Avoid any increase in the threat of bushfire to people, property and infrastructure. The preservation of life and the management of bushfire impact are paramount.
5.2Reduce vulnerability to bushfire through the identification and consideration of bushfire risks in decision-making at all stages of the planning and development process.
5.3Ensure that higher order strategic planning documents, strategic planning proposals, subdivision and development applications take into account bushfire protection requirements and include specified bushfire protection measures.
5.4Achieve an appropriate balance between bushfire risk management measures and, biodiversity conservation values, environmental protection and biodiversity management and landscape amenity, with consideration of the potential impacts of climate change.
At cl 6.11 of SPP 3.7 the precautionary principle is stated (Exhibit 2, page 287) as follows:
Where a landowner/proponent has not satisfactorily demonstrated that the relevant policy measures have been addressed, responsible decisionmakers should apply the precautionary principle to all strategic planning proposals, subdivision and development applications in designated bushfire prone areas. For example, if a landowner/proponent cannot satisfy the performance principles of the relevant policy measures through either the application of the acceptable solutions outlined in the Guidelines, or through the alternative solutions endorsed by the WAPC and State authority/relevant authority responsible for emergency services, the application may not be approved.
PB 111/2016 provides at cl 2 that its purpose is (Exhibit 4):
This Planning Bulletin has been prepared to address key issues raised by local governments, developers and landowners; and to assist with the interpretation and implementation of the above mentioned policy reforms [which include SPP 3.7]
At cl 3 of PB 111/2016 the 'overarching policy intent for planning in bushfire prone areas' is described as (Exhibit 4):
Strategic planning documents or proposals, subdivision and development applications within a bushfire prone area, should demonstrate a Bushfire Attack Level (BAL) of 29 or below. Proposals that on completion, are extreme and/or BAL-40 or BAL-Flame Zone will generally not be supported (subject to exemptions relating to minor or unavoidable development).
Clause 5 of PB 111/2016 is headed 'exemptions' and states:
Exemptions from the requirements of SPP 3.7 and the deemed provisions should be applied pragmatically by the decision maker. If the proposal does not result in the intensification of development (or land use), does not result in an increase of residents or employees; or does not involve the occupation of employees on site for any considerable amount of time, then there may not be any practicable reason to require a BAL Assessment.
…
Exemptions also apply to single houses and ancillary dwellings on lots less than 1,100m². This exemption does not include grouped or multiple dwellings.
…
Ultimately, the planners both accepted that the proposed subdivision does potentially allow for an intensification of development on the site. Thus the applicants' submission to the contrary was not supported by the evidence before the Tribunal. In addition, as the proposed subdivision is a stratasurvey subdivision, the dwellings on all of the lots will remain group dwellings.
The Tribunal is not persuaded that the proposed subdivision fits within the 'exemptions' identified in PB 111/2016.
The purpose and objectives of SPP 3.7 are important ones. The potentially devastating consequences of bushfire on property and people have been seen a number of times in the recent past in Western Australia. The weight that should be given to this policy, which seeks to ensure planning decisions take bushfire risk and mitigation into account, should generally be significant.
The fact that the site was created and five dwellings constructed on it at a time prior to the adoption of SPP 3.7 is no reason to disregard that policy in determining the current subdivision application. The owners may have made arrangements between themselves and put up fences or other physical barriers on the site but that does not change the fact that the site is a single lot to which each of the owners has a legal right to access and to influence the management of all parts of the site. In terms of bushfire, once the site is subdivided the fact is that each owner of each lot will no longer have the same rights in relation to the other lots. Bushfire management within each lot will become the sole province of each lot owner, subject to any relevant provisions of the ST Act. This is a significant change when considering the issue of bushfire.
The Tribunal is not satisfied that the mere fact that the subdivision does not itself incorporate any development work and does not, of itself, change the number of dwellings located on the site, is a reason to depart from the policy in this case. In addition, the need for a fire management plan is a condition of subdivision of the site as contemplated by Sch 2 of LPS 3.
The Tribunal accepts the evidence of Mr Wright, which was not contradicted, that without the information required by SPP 3.7 it is not possible to determine what the bushfire threat is for each proposed new lot, nor is it possible to know whether any required mitigation measures are able to be carried out within the boundaries of each lot.
It would not be appropriate to grant approval to a proposed subdivision in those circumstances.

Conflict with LPS 3

The respondent submits that, based on the definition of 'group dwelling' in LPS 3, if the proposed subdivision proceeded, each of the new lots would have a group dwelling on the lot. As 'group dwelling' is an 'X' (prohibited) use in the Agricultural zone, the proposed new lots would conflict with the provisions of LPS 3 and therefore the proposed subdivision is incapable of approval. The respondent also submits that the creation of new lots that are rendered illegal in terms of statutory requirements is inconsistent with cl 3.5.2 of DC 1.1.
The definition of 'group dwelling' in Sch 1 of LPS 3 is 'the meaning given to the term in the Residential Planning Codes'. Although 'Residential Planning Codes' is not defined in LPS 3, this would appear to be a reference to what is now State Planning Policy 3.1 Residential Design Codes (R-codes), particularly in light of the age of this Scheme. The history of the R-codes involves a number of differently named documents, some of which have been State planning policies and some not. In 1985, State Planning Policy No 1 Residential Planning Codes was gazetted. The description 'Residential Planning Codes' was retained in 1991 when the Residential Planning Codes of Western Australia was produced as a manual and codes. This was replaced in 2002 with the Residential Design Codes. Since that time, while there have been significant changes to the text of the codes, the title to the various documents has retained the words 'Residential Design Codes'. While at the time of gazettal of LPS 3 the relevant document in place was the Residential Design Codes, the reference to the Residential Planning Codes, which had at that time only relatively recently been replaced, is not entirely inexplicable.
Appendix 1 of the RCodes provides that 'grouped dwelling' means:
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property.
The proposed subdivision is a surveystrata subdivision with common property, which provides the access leg to each of the lots. Thus, if subdivided by way of surveystrata, each of the new lots will contain at least one group dwelling within the meaning of LPS 3. If the lots were proposed to be created by green title subdivision, only proposed lot two would contain a group dwelling within the meaning of LPS 3.
The provision in Sch 2 of LPS 3 that renders group dwellings on the site permissible applies to Nelson location 11864 Brockman Highway. According to Mr Wright, a lot meeting this description will no longer exist if the proposed subdivision is carried out. The new lots therefore will be subject to the prohibition on group dwellings in the Agriculture zone with no additional use provision that applies to those lots.
The applicants submit that the proposed subdivision does not conflict with the Scheme. The applicants do not address the argument raised by the respondent directly but simply say the fifth dwellings is a nonconforming use and its lawfulness on that basis is not altered by the fact of subdivision. The respondent has not disputed the applicants' claim that the fifth dwelling on the site is a non-conforming use within the meaning of the Scheme. The Tribunal therefore has no basis to find that it is not.
The Tribunal accepts that the position in relation to proposed lot two will not be inconsistent with LPS 3 on the basis that, while a group dwelling on a single lot is a prohibited use within the Agriculture zone, the Scheme expressly allows for the continuation of non-conforming uses: cl 4.8 of LPS 3. The Tribunal is not satisfied that the creation of proposed lot two, which has two dwellings on it, conflicts with the Scheme.
The situation is different, however, in relation to the argument that there is a conflict with LPS 3 caused by subdividing the site by way of surveystrata with common property. The Tribunal is satisfied that if the site is subdivided so as to create a surveystrata with common property, the additional use provision in Sch 2 of LPS 3 will no longer apply. This will have the result that each of the dwellings in each of the proposed new lots will be a 'group dwelling' within the meaning of LPS 3. As 'group dwelling' is an 'X' use in the Agriculture zone, this means that the newly created lots would be in conflict with LPS 3.
The respondent submits that none of the exceptions in s 138(3) of the PD Act apply and therefore the proposed subdivision is incapable of approval. The Tribunal is not persuaded by that submission.
It is clear from condition 3 of the A5 additional use that the Scheme expressly contemplates subdivision of the site into four lots each with a minimum of 5 hectares in area. At the time LPS 3 was gazetted, the site had four or five dwellings on it.
If the subdivision was proposed to occur by way of green title subdivision, there would be no conflict with the Scheme. It is not stated in the Scheme in relation to additional use A5 that the contemplated subdivision must be by way of green title.
In addition, there is nothing in the number of dwellings in relation to the area of land in each proposed new lot that alters the density of development on the proposed new lots because of the surveystrata subdivision as opposed to green title subdivision.
The Tribunal is satisfied that the conflict with the Scheme is minor and that, at least in relation to this issue, approval of the proposed subdivision is consistent with the general intent of LPS 3. Therefore, if this were the only issue before the Tribunal in relation to the proposed subdivision, there would be no barrier to approval of it because of the exception in s 138(3)(c) of the PD Act.

Undesirable precedent

In light of the conclusions of the Tribunal in relation to the issues of access and bushfire, it is unnecessary to address this issue.

Conclusion

While it seems that access to the site from Brockman Highway via a public road and a bushfire plan were not required when the site was created, this is no basis to ignore the current planning framework that is in place now, at a time when the applicants seek to subdivide the site into four lots. The Tribunal has concluded that the creation of the four lots involves change, as set out in the reasons above, and that change warrants assessment of the proposal in light of the current planning framework. The Tribunal is not satisfied that it is appropriate to approve the proposed subdivision in circumstances where the proposed lots do not have access to a public road and where the information required by SPP 3.7 in relation to bushfire has not been provided. The correct and preferable decision is that the decision of the respondent to refuse to approve the proposed subdivision should be affirmed.

Orders

The Tribunal orders that:
1.The decision of the respondent made on 8 June 2017 to refuse to approve the proposed subdivision is affirmed.
2.The application for review is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, MEMBER
11 JULY 2018