Brake and Western Australian Planning Commission
[2016] WASAT 132
•9 NOVEMBER 2016
BRAKE and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 132
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 132 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:230/2015 | 17 AUGUST 2016 | |
| Coram: | MS C WALLACE (SENIOR MEMBER) | 9/11/16 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application approved with conditions | ||
| B | |||
| PDF Version |
| Parties: | RICHARD BRAKE ANDREA SCREAIGH WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision application Government Sewerage Policy Perth Metropolitan Region 1995 Proper and orderly planning Whether 'significant' departure from policy Whether adverse planning precedent |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 144, s 165, s 241(1)(a), s 251(3) Shire of Kalamunda Local Planning Scheme No 3 State Administrative Tribunal Act 2004 (WA), s 31, s 32(4), s 32(7)(a) Residential Design Codes Transfer of Land Act 1893 (WA), s 70A |
Case References: | Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) LGERA 68 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 Nicholls and Western Australian Planning Commission [2005] 149 LGERA 117 |
Orders | 1. The decision of the respondent made on 25 November 2015 to refuse the application is set aside and substituted for the following order.,2. The application for approval to subdivide land at No 57 (Lot 6) Cotherstone Road, Kalamunda in the Shire of Kalamunda is granted subject to the following conditions:,a) All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under relevant legislation including the Shire of Kalamunda Local Planning Scheme No 3 and Building Regulations of Australia (Local Government).,b) Other than buildings, outbuildings and/or structures shown on the approved plan for retention, all buildings, outbuildings and/or structures present on proposed Lot 2 at the time of subdivision approval being demolished and materials removed from the lot (Local Government).,c) The existing dwelling being retained on proposed Lot 1 is to comply with the requirements of the Residential Design Codes (Local Government).,d) The land being filled, stabilised, drained and/or graded as required to ensure that:,(i) Lots can accommodate their intended development;,(ii) Finished ground levels at the boundaries of the lot(s) the subject of this approval match or otherwise coordinate with the existing and/or proposed finished ground levels of the land abutting; and,(iii) Stormwater is contained on-site, or appropriately treated and connected to the local drainage system (Local Government).,e) Suitable arrangements being made with the local government for the provision of vehicular crossover(s) to service the lot(s) shown on the approved plan of subdivision (Local Government).,f) The battle-axe access way being constructed and drained at the landowner/applicants cost to the specifications of the local government (Local Government).,g) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply to the lot(s) shown on the approved plan of subdivision (Western Power).,h) Arrangements being made with the Water Corporation so that the provision of a suitable water supply service will be available to the lot(s) shown on the approved plan of subdivision (Water Corporation).,i) Suitable arrangements being made with the Water Corporation for the drainage of the land either directly or indirectly into a drain under the control of that body (Water Corporation).,j) A notification, pursuant to s 70A of the Transfer of Land Act 1893 (WA) is to be placed on the certificate(s) of title of the proposed lot(s). Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows:,'A reticulated sewerage service is not available on this lot' (Local Government).,k) A notification, pursuant to s 165 of the Planning and Development Act 2005 (WA), is to be placed on the certificate(s) of title of the proposed lots advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows:,'This land is within a bushfire prone area as designated by an Order made by the Fire and Emergency Services Commissioner. Additional planning and building requirements may apply to development on this land' (Western Australian Planning Commission). |
Summary | The application for review was in relation to the respondent's decision to refuse an application to subdivide land at No 57 Cotherstone Road in the Shire of Kalamunda. The respondent had refused the application on the basis that it was inconsistent with provisions contained in the Government Sewerage Policy Perth Metropolitan Region 1995 on the basis that provision for a reticulated sewer was not available. The respondent was also concerned that any approval would result in an adverse planning precedent. The applicants contended that the application was consistent with the underlying objectives of the policy, met the R10 zoning and could safely accommodate an aerobic treatment unit in circumstances where there were no current plans for reticulated sewerage in the locality.,The Tribunal found that the respondent was inflexibly applying the relevant policy without exercising its discretion. The Tribunal accepted the expert evidence relied upon by the applicants, that their proposal would meet the objectives of the policy and would not create a discernible risk to public safety or the environment.,The Tribunal found that approving the application would be consistent with the principles of proper and orderly planning and would not create an adverse planning precedent. The application was therefore approved with conditions. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BRAKE and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 132 MEMBER : MS C WALLACE (SENIOR MEMBER) HEARD : 17 AUGUST 2016 DELIVERED : 9 NOVEMBER 2016 FILE NO/S : DR 230 of 2015 BETWEEN : RICHARD BRAKE
- First Applicant
ANDREA SCREAIGH
Second Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision application Government Sewerage Policy Perth Metropolitan Region 1995 Proper and orderly planning Whether 'significant' departure from policy Whether adverse planning precedent
Legislation:
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 144, s 165, s 241(1)(a), s 251(3)
Shire of Kalamunda Local Planning Scheme No 3
State Administrative Tribunal Act 2004 (WA), s 31, s 32(4), s 32(7)(a)
Residential Design Codes
Transfer of Land Act 1893 (WA), s 70A
Result:
Application approved with conditions
Summary of Tribunal's decision:
The application for review was in relation to the respondent's decision to refuse an application to subdivide land at No 57 Cotherstone Road in the Shire of Kalamunda. The respondent had refused the application on the basis that it was inconsistent with provisions contained in the Government Sewerage Policy Perth Metropolitan Region 1995 on the basis that provision for a reticulated sewer was not available. The respondent was also concerned that any approval would result in an adverse planning precedent. The applicants contended that the application was consistent with the underlying objectives of the policy, met the R10 zoning and could safely accommodate an aerobic treatment unit in circumstances where there were no current plans for reticulated sewerage in the locality.
The Tribunal found that the respondent was inflexibly applying the relevant policy without exercising its discretion. The Tribunal accepted the expert evidence relied upon by the applicants, that their proposal would meet the objectives of the policy and would not create a discernible risk to public safety or the environment.
The Tribunal found that approving the application would be consistent with the principles of proper and orderly planning and would not create an adverse planning precedent. The application was therefore approved with conditions.
Category: B
Representation:
Counsel:
First Applicant : Mr Dobson
Second Applicant : Mr Dobson
Respondent : Ms Paljetak
Solicitors:
First Applicant : Hotchkin Hanly
Second Applicant : Hotchkin Hanly
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
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; (1991) LGERA 68
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Nicholls and Western Australian Planning Commission [2005] 149 LGERA 117
Introduction
1 Mr Richard Brake and Ms Andrea Screaigh (applicants) made application to the Western Australian Planning Commission (respondent) on 10 November 2014 for approval to subdivide land at No 57 (Lot 6) Cotherstone Road, Kalamunda in the Shire of Kalamunda (the subject land). The subject land has an area of 2,059m² and is currently occupied by a single dwelling serviced by a septic sewerage system. The subject land is located approximately 1.2 kilometres southwest of the Kalamunda town centre.
2 The application was refused by the respondent on 23 January 2015 for the following reasons:
a) the proposal for subdivision is inconsistent with the provisions contained in the Government Sewerage Policy Perth Metropolitan Region 1995 (Sewerage Policy) on the basis that provision for a reticulated sewer is not available to service the proposed subdivided lots and there are no special circumstances to justify exemption from the mandatory sewer condition; and
b) approval to the proposed subdivision would result in an undesirable precedent for the future subdivision of lots of a similar size within the locality.
3 On 18 February 2016, the applicants lodged a reconsideration request pursuant to s 144 of the Planning and Development Act 2005 (WA) (PD Act) submitting that the application ought to be approved on the following basis:
a) there is no current intention to extend the deep sewer reticulation to the locality;
b) the Sewerage Policy is outdated and does not reflect changes in technology for Aerobic Treatment Units (ATUs);
c) an ATU was approved and installed on a neighbouring lot in 2014;
d) an analysis of the subject land and its soil concluded that an ATU irrigation area could easily and safely be accommodated; and
e) the subdivision proposal meets the R10 zoning of the subject land.
4 The respondent confirmed its earlier refusal upon reconsideration on 15 June 2015 for the same reasons as set out above.
5 On 10 July 2015, the applicants filed an application with the Tribunal seeking review of the reconsidered decision pursuant to s 251(3) of the PD Act on the following grounds:
a) the Sewerage Policy is outdated and has not been updated in order to take into account the current deep sewer infill program;
b) the subject land is already zoned R10 and is therefore suitable for subdivision;
c) the Department of Health has assessed the subject land as suitable for an ATU; and
d) the respondent has already approved subdivision and second dwellings in the street of the subject land.
6 During the Tribunal proceedings, the respondent was invited to formally reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 25 November 2015, the respondent again confirmed its position of refusal on the basis of the following reasons:
a) The subdivision proposal does not satisfy any of the exemptions to the mandatory sewer provisions in the Sewerage Policy and Development Control Policy 2.2 Residential Subdivision (DCP 2.2).
b) If the respondent granted approval of the subdivision it would create an undesirable precedent for the future subdivision of lots of a similar size within the locality.
Site and locality
7 As previously mentioned, the subject land has an area of 2,059m², and is occupied by a single dwelling serviced by a septic sewerage system. It is located approximately 1.2 kilometres southwest of the Kalamunda town centre. The surrounding area is generally a low density residential area with lots within the immediate vicinity ranging in size of between 1,000m² to 2,000m².
8 It is accepted by the parties that the subject land and the majority of the surrounding locality is not connected to a reticulated sewerage system and that there are no current plans for such connection.
Statutory framework
Metropolitan Region Scheme
9 The subject land is zoned 'Urban' under the Metropolitan Region Scheme.
Shire of Kalamunda Local Planning Scheme No 3 (LPS 3)
10 The subject land is zoned 'Residential R10' under LPS 3, as is the majority of the surrounding locality.
State Planning Policy 3.1 Residential Design Codes (RCodes)
11 The minimum lot size requirements for single houses on land with a density coding of R10 as set out in Table 1 of the RCodes are:
Minimum lot size: 875m²
Average lot size: 1,000m²
Minimum lot size for rear battleaxe lot: 925m²
Development Control Policy 1.1 Subdivision of Land General Principles (DCP 1.1)
12 The Policy objectives of DCP 1.1 relevantly include the following:
• To ensure that all lots created have regard to the provisions of the relevant local government town planning scheme.
• To ensure the subdivision pattern is responsive to the characteristics of the site and the local planning context.
• To ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
• To facilitate development which achieves appropriate community standards of health, safety and amenity.
• To secure public utility services to each new lot appropriate for intended use of the lot.
13 In respect of public utility services, cl 3.6.1 of DCP 1.1 provides the following:
The WAPC will ensure that each new lot is provided with a standard of public utility services, or that provided by a licensed private service provider, appropriate for its intended use. The level of such services will be determined by the WAPC in the light of the intended use, the size of the lot, soil conditions, the provisions of the town planning scheme and the Government Sewerage Policy Perth Metropolitan Region and the Country Sewerage Policy, together with the provisions of any other published policy that may be relevant.
Development Control Policy 2.2 Residential Subdivision (DCP 2.2)
14 The Policy Objectives of DCP 2.2 are as follows:
• 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.
15 Clause 3.3 of DCP 2.2 states that the respondent will apply the Sewerage Policy for the creation of residential lots in unsewered areas of the metropolitan region. Clause 3.3.1 refers to the Sewerage Policy and the circumstances in which that policy requires the provision of reticulated sewerage to new residential subdivisions.
Sewerage Policy
16 The subject land is part of the 'outer metropolitan area' as shown on Map 1 of the Sewerage Policy. The Policy Objectives of the Sewerage Policy, as set out in clause 1, include the following:
• to protect public health;
• to prevent adverse environmental impacts;
• to reduce the extent of reticulated infill sewerage required in already developed areas and cost to the community in providing it; and
• to provide flexibility in the control of subdivision or density development for which reticulated sewerage is unlikely to be available for some time.
17 Clause 4 of the Sewerage Policy contains what are described as 'mandatory' provisions that state that all subdivision must be provided with reticulated sewerage except where certain discretionary provisions apply. The discretionary provisions do not apply in any of the following circumstances:
4.1 extensive broadacre subdivision, involving the creation of lots or dwellings in areas not currently developed for urban purposes, other than remote or isolated subdivision or density development in the outer metropolitan area (see section 5.2.3);
4.2 subdivision or density development in areas served by reticulated sewerage or which the responsible authorities determine can reasonably be connected to sewer;
4.3 subdivision or density development in areas identified as unsuitable areas for onsite wastewater disposal (see Map 1);
4.4 Subdivision or density development where the absence of sewerage is considered by the responsible authorities to endanger public health, the environment or the quality of underground and surface water supplies; [or]
4.5 subdivision or density development where the absence of sewerage is considered by the responsible authorities to prejudice, physically or financially, the ability to provide sewerage to adjoining areas.
18 Clause 5 of the Sewerage Policy contains the discretionary provisions and states that the only exceptions to the requirements for providing reticulated sewerage are those specified in clause 5. In relation to the outer metropolitan area, the exceptions are as follows:
5.2 Subdivision or Density Development in the Outer Metropolitan Area
Subdivision or density development without sewer in the outer metropolitan area may be permitted by the responsible authorities in the following circumstances, where subsections 4.1 to 4.5 do not apply:
5.2.1 Small Infill
- proposals for small infill subdivision or development do not have potential for the creation of more than four additional lots, dwellings or single residential equivalents respectively, in the immediate vicinity (generally interpreted as within the street block), so that the proposal completes rather than extends an existing pattern of subdivision or development. Lot sizes and land use shall be consistent with the existing pattern of subdivision or development;
5.2.2 Large Lots
proposals for large lot subdivision do not involve the creation of lots less than 2,000m², or density development exceeding R5, provided the responsible authorities are satisfied that no significant detriment to the environment is likely and there is no further opportunity for subdivision without sewerage;
5.2.3 Remote and Isolated
proposals for remote and isolated subdivision or density development do not involve the potential for the creation of more than 25 lots, dwellings or single residential equivalents respectively, and the applicant can demonstrate to the satisfaction of the responsible authorities that:
i site conditions allow for the effective onsite disposal of wastewater on a longterm basis;
ii residential developments do not exceed R12.5 and no individual lot on which wastewater is to be disposed is less than 700m² in area;
iii where in the assessment of the Water Authority of Western Australia it is not economical or practical, within the foreseeable future, to provide sewerage that is connected to its reticulated sewerage system;
5.2.4 Aged Persons Accommodation Developments
proposals for aged or dependant persons' accommodation where:
i the developments do not exceed an R12.5 residential equivalent;
ii the proponent has demonstrated to the satisfaction of the local authority a community need for such development in a particular location, and that location is suitable for such accommodation;
iii the local authority is satisfied that no better alternative site is available in a particular locality for such development which could reasonably be connected to reticulated sewerage;
iv an appropriate wastewater treatment system approved by the Executive Director, Public Health is used. The system must be capable of satisfying the conditions of Appendix 2 in relation to:
• final effluent quality criteria;
• irrigation area requirements;
v the wastewater treatment and disposal system is owned and operated by a single identifiable person or body (e.g. owner or strata body) and an acceptable maintenance program is in place for the system and disposal area; [and]
vi the internal wastewater reticulation system installed is of a standard acceptable to the Water Authority of Western Australia and includes provision for connection to sewer when it becomes available.
Draft Government Sewerage Policy (Draft GSP)
20 The applicants submitted to the Tribunal that pursuant to s 32(4) of the SAT Act, which provision empowers the Tribunal to inform itself on any matter as it sees fit, the Tribunal ought to seek production of the Draft GSP from the respondent. Additionally, the Tribunal notes that s 32(7)(a) of the SAT Act requires the Tribunal to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding. The Tribunal therefore enquired of the respondent whether it intended to provide a copy of the Draft GSP and, if not, the basis on which it contended that that document was not relevant to the Tribunal's determination.
21 In response to the Tribunal's enquiry, the respondent submitted that having regard to the principles set out in Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 (Nicholls), that the Draft GSP is not a relevant planning consideration as it is not seriously entertained. This is because it requires further advertising and therefore cannot be regarded as certain and imminent. An earlier iteration of the Draft GSP was advertised by the Department of Health in 2011. However, the respondent submitted to the Tribunal that the current draft is significantly different to what was released in 2011 and will require further formal advertising and eventually will require Cabinet and Ministerial approval.
22 In Nicholls the Tribunal analysed the authorities dealing with the extent to which planning proposals should be taken into consideration and what is generally referred to as the 'Coty principle' (Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117). It is not necessary to repeat that detailed analysis in these reasons. In summary, the principle is that where a draft planning instrument or policy has reached a stage that it constitutes a seriously entertained planning proposal, it becomes a relevant factor to be taken into consideration as to orderly and proper planning, and should be allocated such weight as is appropriate having regard to the four principal criteria identified at [59] of Nichollsin making a planning decision to which the draft instrument or policy relates.
23 I am not satisfied that the Draft GSP is a policy document which could be regarded as seriously entertained for the reasons submitted on behalf of the respondent. I accept that it is not a seriously entertained planning proposal. Its production was therefore not seen as necessary by the Tribunal, nor was its production pressed by the applicants at the hearing.
Issues for determination
24 The following issues require determination by the Tribunal:
1) If the Tribunal approved the proposed subdivision, would such an approval be consistent with the principles of proper and orderly planning?
2) If the Tribunal approved the proposed subdivision, would such an approval create an adverse planning precedent?
Determination
Issue 1: Would approval of the proposed subdivision be consistent with proper and orderly planning principles?
25 It was not in contention between the parties that the proposed subdivision does not comply with the provisions of the Sewerage Policy. It was also not in contention between the parties that that position in and of itself does not prevent the respondent or this Tribunal from granting approval.
26 It is well established that a policy is but one factor to take into account in the exercise of the relevant decision-maker's discretion in considering whether to approve a planning application. In this regard the following discussion of Justice Barker is helpful (Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission[2002] WASCA 276; (2002) 122 LGERA 433 [24] - [26], referring to Falc Pty Ltd v State Planning Commission(1991) 5 WAR 522; (1991) LGERA 68):
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by [sic] why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach.
… an administrator exercising discretionary power will be found to have acted ultra vires if the discretion is exercised inflexibly, by application of a policy without regard to the merits of a particular case …
A relevant policy, provided it is not ultra vires, may therefore be regarded as one relevant consideration which the administrator is, effectively, bound to take into account.
Evidence
27 The witness evidence relevant to this issue before the Tribunal consisted of three expert witness statements:
• Statement of Evidence of Ms Rachel Angela Riley (town planner) dated 15 July 2016 (Exhibit C) filed on behalf of the respondent;
• Expert Report of Dr Ross Mars (environmental scientist) dated 29 July 2016 (Exhibit D) filed on behalf of the applicants; and
• Witness Statement of Ms Amanda Jane Butterworth (town planner) dated 1 August 2016 (Exhibit E) also filed on behalf of the applicants.
28 The Tribunal also received oral evidence from each of the witnesses during the course of the hearing.
Respondent's position
29 The respondent contends that approval in the circumstances of the present case would be inconsistent with the principles of proper and orderly planning for the following five reasons:
1) Firstly, because the proposed subdivision departs from the Sewerage Policy to a significant degree such that it undermines and puts at risk the objectives of that policy.
2) Secondly, and related to the first point, the departure from the Sewerage Policy in the present circumstances would be unprecedented in that although there have been other departures, those have been minor in nature to what is currently being proposed.
3) The Sewerage Policy is suitably flexible to accommodate new effluent disposal technologies and thus could accommodate what is presently being proposed if appropriate in all the circumstances.
4) The capacity of the subject land to accommodate an ATU is not in and of itself a sufficient reason to support approval for the subdivision, that is, all the relevant objectives of the Sewerage Policy need to be met for the 'greater good'.
5) The relevant planning framework evidences no intention to introduce higher density development in the locality of the subject land.
Applicants' position
30 In summary, the applicants' position is that their proposal for subdivision is consistent with proper and orderly planning principles for the following reasons:
1) The proposal meets the objectives of the Sewerage Policy as well as the objectives of the applicable planning framework.
2) Approval of the proposed subdivision would result in a number of benefits including efficient use of land, lots which are consistent with the R10 coding, onsite effluent disposal, no adverse environmental impact and thus maintenance of protection of public health.
3) Approval would provide flexibility in the control of subdivision or density development in circumstances where reticulated sewerage is unlikely to be available for some time.
4) The respondent has already departed from the specific discretionary provisions of the Sewerage Policy and orderly and proper planning requires an assessment of a planning proposal on its own individual merits.
5) The existing Sewerage Policy does not specifically address the use of ATU systems and has not been updated to address advances in the development and use of such systems over time.
Consideration
31 What one must have regard to in assessing whether a proposal is consistent with orderly and proper planning principles was discussed in detail by Justice Pritchard in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [179] [182]. Although that case arose in a different statutory context, the discussion of her Honour on this point is very helpful:
… to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious.
… the exercise of discretion would clearly need to have regard to any applicable legislation, subsidiary legislation and planning schemes (such as region schemes, town planning schemes, local planning schemes) and policy instruments. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies 'so that the legitimate aspirations found in the planning framework may be translated into reality'. (Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 [87]).
However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. …
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
32 It is not in dispute that the proposed subdivision is consistent with the minimum and average lot sizes required by R10 density coding and is also consistent with LPS 3 (paragraph 36 of Exhibit C). The main concern of the respondent is that the proposal does not satisfy the provisions of the Sewerage Policy, and it is therefore, on the respondent's evidence, 'not orderly and proper planning to support the proposed subdivision' (paragraphs 37 and 38 of Exhibit C). The expert evidence relied upon by the respondent in this regard is of concern to the Tribunal, as it illustrates an inflexible application of the Sewerage Policy. This inflexible application of the relevant policy was mirrored by the Department of Health in its correspondence with the applicants (page 34 of Exhibit A):
… the unsewered subdivision proposal is contrary to the provisions of the Government Sewerage Policy Perth Metropolitan Region (Sewerage Policy) as the subdivision is not consistent with the pattern of subdivision on the street block. Also, the subdivision can potentially set an undesirable precedent for many lots in the locality. Whilst the site suitability for effluent disposal is a prerequisite for unsewered subdivision under the Sewerage Policy, the Discretionary Provisions of the Policy must also be complied with.
The proposed subdivision does not satisfy the 'small infill' criterion (clause 5.2.1) of the Discretionary Provisions of the Sewerage Policy to qualify for the unsewered subdivision. For this reason, the Department of Health does not support the subdivision.
33 Whilst the Tribunal accepts that the Sewerage Policy should not be lightly departed from, the relevant analysis required does not simply begin and end at that departure itself but whether there has been a demonstration of a sound basis for departing. A number of considerations are taken into account in this analysis, including an objective consideration as to whether the relevant policy objectives can be met.
34 It is accepted by the parties that there is no possibility, presently nor likely in the foreseeable future, for the applicants to connect to reticulated sewerage in this particular locality. Thus in accordance with the objectives of the Sewerage Policy it is appropriate to afford some flexibility to the applicants in these circumstances.
35 Ms Riley, in her oral evidence at the hearing focussed on the alleged inability of the proposed subdivision to meet two of the primary objectives of the Sewerage Policy, that being to protect public health and to prevent an adverse environmental impact. It was the position of the respondent that it ought not depart from the provisions of the Sewerage Policy in circumstances where it could not be certain that those significant community based objectives could be met. Thus, in the respondent's position, there was no sound basis to depart from the relevant provisions of the Sewerage Policy and that if approval were granted it would not be consistent with proper and orderly planning principles.
36 The Tribunal was assisted in the area of public health and environmental matters by the expert report and oral evidence of Dr Mars. The respondent did not file any expert evidence from an environmental scientist and thus the applicants' expert was the only source of evidence in this area of specialty. It was not in contention that Dr Mars was indeed an appropriate witness to speak of environmental and public health matters in relation to the use of ATUs in the relevant locality.
37 In Exhibit D, Dr Mars dealt with the various advantages that ATU systems provide when compared with the prevailing technology in use at the time that the Sewerage Policy was initially adopted. The advantages provided in Dr Mars' report include the following (pages 3 and 4 of Exhibit D):
• superior water quality, which is disinfected and able to be used as drip or spray irrigation of gardens;
• smaller footprint of land use requirement in installation;
• ATUs are required by law to have regular servicing undertaken;
• no leaching of effluent into the soil and groundwater which is a common problem with septic systems and especially leach drains;
• ATUs are approved for use and are tested to a relevant Australian Standard to ensure high quality of water and consistent performance; and
• ATUs seldom emit offensive odours.
38 Further, in the report of Dr Mars, he notes, having conducted a soil analysis sample at the subject land, that the most appropriate nonreticulated system for waste disposal on the particular site is an ATU (Exhibit D, page 5). In relation to whether an ATU can meet the policy objectives of the Sewerage Policy, Dr Mars noted the following (pages 5 and 6 of Exhibit D):
a) ATUs, if serviced and maintained as required, offer better protection to public health and the environment compared with septic and leach drain systems. The final effluent is disinfected and thus poses minimal risk. ATUs treat wastewater to a secondary standard, ensuring public safety.
b) There is better scope to design ATU systems based on the particular land and soil type and the hydraulic loading. This will mean that ATU systems will have their irrigation designed for each specific site.
c) Onsite wastewater treatment plants are more costeffective than largescale infill. It is therefore an installation which is more costeffective with less ongoing costs in relation to the running, maintenance and replacement costs.
d) Greater flexibility in housing density development is possible with an ATU compared to septic tank systems. The installation of ATUs will enable higher density housing and the production of safer, treated effluent, thus minimising nutrient loading in soils and waterways.
39 The Tribunal notes that the respondent did not crossexamine Dr Mars on the evidence set out above. Also, as previously mentioned, the respondent did not call an environmental scientist to give evidence which would contradict that of Dr Mars. The Tribunal further notes that the respondent's town planner, Ms Riley, was initially unable to comment on the evidence of Dr Mars as she had not read that evidence prior to the hearing. The hearing was adjourned to allow Ms Riley to read Exhibit D and then resumed. Ms Riley then conceded in oral evidence that the evidence of Dr Mars was that the objectives of the Sewerage Policy could indeed be met by the installation of an ATU on the subject land (T:44; 17.08.16). Ms Riley also informed the Tribunal that the respondent was not an expert in the field of ATUs and was reliant on the Department of Health. Ms Riley conceded that the Department of Health did not have any specific concerns in respect of the accommodation of an ATU on the relevant site (T:44; 17.08.16 and page 34 of Exhibit A).
40 Ms Butterworth, the town planning expert who gave evidence at the hearing on behalf of the applicants, was satisfied on the basis of the evidence of Dr Mars that the installation of an ATU at the subject land would offer protection to public health and the environment and that in this and all other aspects the subdivision proposal meets the objectives of the Sewerage Policy (T:42; 17.08.16). Essentially, Ms Butterworth concluded that there was justification to depart from the Sewerage Policy on the basis that there were no current or foreseeable plans for reticulated sewerage in the locality and on the basis that the objectives of the Sewerage Policy were met and there were no potential adverse impacts on public health or the environment.
41 Indeed, the Tribunal notes that there was no evidence of any potential risk to public health or the environment relied upon by the respondent in these proceedings. Its position was simply that the applicants had not provided sufficient evidence to definitively exclude potential of an adverse impact. I disagree with this contention. The uncontested independent expert evidence of Dr Mars supports the proposition that the installation and maintenance of an ATU in the relevant locality would have no adverse impact on public health or the environment, on an individual basis and, indeed, on an accumulative basis assuming that other subdivision applications were made in identical terms (page 7 of Exhibit D).
42 The second main contention of the respondent that granting approval to the proposed subdivision would be contrary to the principles of proper and orderly planning is that the departure from the Sewerage Policy would be 'significant'. The Tribunal is unaware of any legal principle such that significance of departure is a relevant consideration in the exercise of discretion. It seems to the Tribunal that the only relevant application of this issue is the extent to which a departure from the policy has any adverse impact on satisfying the underlying objectives of the policy. It is therefore on this premise that this matter was considered.
43 There was some discussion during the course of the hearing as to what constituted a 'significant departure'. The parties were in agreement, and the respondent conceded, that a significant departure could not simply be assessed on the basis of a statistical analysis, that is, on the basis of the number of other lots in the relevant street block which could make a similar subdivision application. It was not in contention that there are a number of other lots in the street block which could make a similar application and thus any approval could arguably set a precedent for further subdivision without connection to a reticulated sewer.
44 The respondent's position is that it is the intent of the Sewerage Policy to limit the extent of such development in circumstances where there is no reticulated sewerage to effectively reduce development density in those areas. However, as mentioned, it was conceded at the hearing that the reasons behind those provisions of the Sewerage Policy is based on concerns in respect of public health and potential adverse impact on the environment. Indeed, Ms Riley conceded that the mere fact that there could be approximately 15 additional lots created is not the issue in and of itself. The issue is the potential environmental accumulative effect of each of those sites using an ATU.
45 Counsel for the respondent submitted that the applicants would need to have evidence of the individual soil and land capability studies for all other properties in the street block to address the potential accumulative effects of multiple ATUs in use (T:78; 17.08.16). However, not only is such an analysis not achievable by the applicants, in the Tribunal's view it was not necessary evidence to address the issue. The answer is straight forward assuming the soil and land capability results are substantially the same as the subject land, Dr Mars gives evidence on the point (page 7 of Exhibit D). If they differ, then the respondent will need to assess each application on its individual merits on the basis of the information provided at the relevant time. Ms Riley agreed in her evidence at the hearing that in each future hypothetical application there would need to be an onsite analysis of the soil and land capability and that each application would need to be assessed on their individual merits (T:45; 17.08.16). In summary, those hypothetical applications (which may or may not be made at some future point) cannot form part of the applicants' application nor be assessed as part and parcel of the applicants' application.
46 In the Tribunal's view, the mere fact that there is potential for the creation of additional lots unconnected to reticulated sewerage does not lead to a conclusion that this is a 'significant' departure from the Sewerage Policy. Whether it is a significant or minor departure must necessarily involve an analysis of whether and to what extent a particular proposal meets the underlying objectives, that is, does the proposal evidence a minor departure because the risk to the environment is negligible? Is the departure significant because there is a real discernible risk to public health? It is the view of the Tribunal that a departure from the provisions of an applicable policy is not 'minor' or 'significant' on the basis of lot numbers alone, but the assessment of the impact of those additional lot numbers on the policy objectives as shown in these examples.
47 The Tribunal finds that the departure from the Sewerage Policy on the basis of the individual merits of this particular proposal is not a significant departure and is justified on the basis that it accepts the evidence of Dr Mars that any risk of adverse impact on the environment or public health is negligible (pages 5-7 of Exhibit D).
48 The Tribunal agrees that the current Sewerage Policy does have a degree of flexibility to accommodate new effluent disposal technologies. However, that in and of itself does not mean that granting approval to the current proposal would not be consistent with proper and orderly planning principles. The Tribunal is also in agreement with the respondent that the capacity of the subject land to accommodate an ATU in and of itself is not sufficient justification to depart from the provisions of the Sewerage Policy. However, as already articulated, the departure is justifiable for a number of reasons, including its adherence to the policy objectives generally, the subject land's ability to be subdivided due to its relevant coding and the fact that there are no foreseeable plans for reticulated sewerage in the relevant locality.
49 In conclusion, the Tribunal finds that granting subdivision approval would be consistent with the principles of orderly and proper planning.
Issue 2: The subdivision would create an adverse planning precedent
50 As was reiterated by his Honour Judge Parry in Nichollsat [72], the undesirable precedent argument is not an argument in and of itself to defeat a planning application. It is simply another consideration to be taken into account when the Tribunal is exercising its discretion. The criteria to be applied when considering whether granting approval would create an adverse planning precedent is as follows:
1) that the proposed development or subdivision is itself objectionable; and
2) there is more than a mere chance or possibility that there may be later indistinguishable applications (Nicholls at [74]).
51 In relation to the first point as to whether the proposed subdivision is in and of itself objectionable, as illustrated by the above analysis, it is the Tribunal's view that it is not in and of itself objectionable. As accepted by the parties, a departure in and of itself from the provisions of the Sewerage Policy does not in isolation mean that the proposed subdivision is objectionable. Much evidence was received by the Tribunal at the hearing in relation to whether the underlying objectives of the Sewerage Policy could in any event be met. The main issue of contention was in respect to whether some hypothetical accumulative adverse impact on the environment would be a consequence of granting approval to the current subdivision proposal. In respect of that matter, the only evidence before the Tribunal was that of Dr Mars, to the effect that if identical applications were made there would be no accumulative adverse impact on the environment or public health (page 7 of Exhibit D). Otherwise, the evidence of Ms Riley at the hearing was that all other objectives of the Sewerage Policy were met based on the individual merits of the current application and that any other application in the locality for subdivision approval would need to be assessed on its individual merits (T:21, 22, 45; 17.08.16).
52 The Tribunal therefore finds that the proposed subdivision is itself not objectionable. On the basis that the proposed subdivision is not of itself objectionable, it is immaterial whether there is a mere chance or possibility that later applications may be indistinguishable.
Orders
53 The correct and preferable decision is that the application for subdivision approval should be approved. The Tribunal has considered the proposed conditions provided by the respondent, and which have been agreed by the applicants, and finds them to be appropriate. The Tribunal will therefore impose those conditions as part of the approval. The Tribunal therefore makes the following orders.
1. The decision of the respondent made on 25 November 2015 to refuse the application is set aside and substituted for the following order.
2. The application for approval to subdivide land at No 57 (Lot 6) Cotherstone Road, Kalamunda in the Shire of Kalamunda is granted subject to the following conditions:
a) All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under relevant legislation including the Shire of Kalamunda Local Planning Scheme No 3 and Building Regulations of Australia (Local Government).
b) Other than buildings, outbuildings and/or structures shown on the approved plan for retention, all buildings, outbuildings and/or structures present on proposed Lot 2 at the time of subdivision approval being demolished and materials removed from the lot (Local Government).
c) The existing dwelling being retained on proposed Lot 1 is to comply with the requirements of the Residential Design Codes (Local Government).
d) The land being filled, stabilised, drained and/or graded as required to ensure that:
(i) Lots can accommodate their intended development;
(ii) Finished ground levels at the boundaries of the lot(s) the subject of this approval match or otherwise coordinate with the existing and/or proposed finished ground levels of the land abutting; and
(iii) Stormwater is contained on-site, or appropriately treated and connected to the local drainage system (Local Government).
e) Suitable arrangements being made with the local government for the provision of vehicular crossover(s) to service the lot(s) shown on the approved plan of subdivision (Local Government).
f) The battle-axe access way being constructed and drained at the landowner/applicants cost to the specifications of the local government (Local Government).
g) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply to the lot(s) shown on the approved plan of subdivision (Western Power).
h) Arrangements being made with the Water Corporation so that the provision of a suitable water supply service will be available to the lot(s) shown on the approved plan of subdivision (Water Corporation).
i) Suitable arrangements being made with the Water Corporation for the drainage of the land either directly or indirectly into a drain under the control of that body (Water Corporation).
j) A notification, pursuant to s 70A of the Transfer of Land Act 1893 (WA) is to be placed on the certificate(s) of title of the proposed lot(s). Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows:
'A reticulated sewerage service is not available on this lot' (Local Government).
k) A notification, pursuant to s 165 of the Planning and Development Act 2005 (WA), is to be placed on the certificate(s) of title of the proposed lots advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows:
'This land is within a bushfire prone area as designated by an Order made by the Fire and Emergency Services Commissioner. Additional planning and building requirements may apply to development on this land' (Western Australian Planning Commission).
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER
1
3
6