CARDOZO and WESTERN AUSTRALIAN PLANNING COMMISSION - [2010] WASAT 139

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CARDOZO and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 139

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 16 MARCH 2010

DELIVERED : 30 SEPTEMBER 2010

FILE NO/S: DR 325 of 2009

BETWEEN: MARTIN CARDOZO
JAMES HUNTER
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Whether conflict with Scheme of a minor nature Whether approval is consistent with general intent of Scheme

Legislation:

City of Belmont Town Planning Scheme No 14, cl 10.2.2, cl 10.2.2.1, cl 10.2.2.1(a), cl 10.2.2.2, cl 10.2.2.3
Metropolitan Region Scheme

Planning and Development Act 2005 (WA), s 138, s 138(3)(c), s 138(3)(c)(i)

Result:

Application dismissed
Decision of the respondent affirmed

Category: B

Representation:

Counsel:

Applicants: Mr J Algeri (Representative)
Respondent: Ms R Young

Solicitors:

Applicants: Algeri Planning & Appeals (Town Planners)
Respondent: State Solicitor's Office

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application to review a decision by the Western Australian Planning Commission who had refused an application to amalgamate two lots on Belmont Avenue into one and then subdivide the amalgamated lot into three separate lots.
The key issue between the parties was that the City of Belmont's planning scheme requires demolition of the existing dwelling in circumstances such as the present. However, the applicants wished to retain the two existing dwellings and create one new vacant lot.
Section 138 of the Planning and Development Act 2005 (WA) allows the Western Australian Planning Commission to approve the amalgamation and subdivision if they were of the opinion that the conflict between what was proposed and the scheme was of a minor nature, or if what was proposed would be consistent with the general intent of the scheme.
The Tribunal, having considered all of the issues, found that in the present case, the conflict between what was proposed and the local scheme was not of a minor nature nor was it consistent with the general intent of the scheme and the application for review was therefore dismissed and the decision of the Western Australian Planning Commission affirmed.

Introduction

The Western Australian Planning Commission (Commission) refused an application by Mr Martin Cardozo and Mr James Hunter (applicants) for approval to amalgamate Lot 37 and Lot 38, Belmont Avenue, Kewdale and resubdivide the amalgamated lot into three lots with areas of 283 square metres (Lot 1), 333 square metres (Lot 2) and 312 square metres (Lot 3) respectively.
The two existing dwellings on Lot 37 and Lot 38 are to be retained within the proposed new Lots 2 and 3, and an existing shed and garage are to be demolished, leaving the proposed Lot 1 as a vacant lot.
The subject land is zoned 'Residential' with a density code of 'R20/R40' under the City of Belmont Town Planning Scheme No 14 (TPS 14) and 'Urban' under the Metropolitan Region Scheme.
The existing dwellings can, in the words of Mr Joe Algeri, the planner for the respondent, be best described as nondescript, single storey brick and tile homes akin to the majority of the existing housing stock in the area.
Mr Algeri described the character of the locality as:
Single residential with sporadic incidences of medium density and group dwelling development. Dwellings are predominantly single storey, brick and tile dwellings not dissimilar to the existing dwellings of the subject land. It appears that the residential component of Kewdale still retains most of its original housing stock that dates from post-war onwards. Many of these original homes are in poor to fair condition. Scattered among them are more contemporary redevelopments, some of which appear to be at a density slightly higher than R20.
One of the respondent's reasons for refusal was that the application did not comply with cl 10.2.2.1 of the TPS 14.
Initially, this issue became the subject of a preliminary question before the Tribunal as to whether or not there was discretion to approve the application in light of cl 10.2.2 of TPS 14 which states:
10.2.2Residential Zone
10.2.2.1The Council may permit the development, or support the subdivision of an existing flexiblecoded or R20coded corner lot to a maximum density of R30 provided:
(a)All existing improvements are demolished;
(b)The lot has frontage to two constructed roads; and
(c)The created lots are not of an irregular shape.
10.2.2.2The amalgamation of abutting lots with an existing corner lot in order to create a larger lot for the purpose of development and/or re-subdivision at a higher density is not consistent with the intent of the provisions and the R20 code shall apply to the amalgamated lot.
10.2.2.3Subdivision up to a maximum of R30 shall only be permitted for existing flexible coded corner lots. Where a flexible coded corner lot is amalgamated to create a larger lot, the base coding of R20 shall apply for subdivision. Densities above the base coding of R20 shall only apply to grouped dwelling applications in accordance with subclause 10.3.1.5.
Following submissions by both parties, it was agreed by consent, prior to the Tribunal ruling on the matter, that the Tribunal did have the discretion to approve the subdivision as applied for, and the question was whether, in all the circumstances, the Tribunal should exercise its discretion in the present case.

Issue for determination

At the beginning of the substantive hearing on 16 March 2010, Mr Algeri, on behalf of the applicants, outlined the issue as follows:
The question before the [T]ribunal today is essentially whether it should exercise its discretion to approve a subdivision at the R30 Code that the parties have agreed is capable of approval in the context of the relevant statutory framework …

Applicants' submissions

The applicants submitted that approval of the proposal would be consistent with, as they put it, the appropriate planning mechanisms and the overall direction of urban planning in Western Australia. They submitted that cl 10.2.2 of TPS 14 was ambiguous and that, in any event, flexibility had been shown in other applications and similar subdivision proposals granted. In particular, they referred to the subdivision approval for Lot 10, Sydenham Street, Kewdale (10 Sydenham Street) which had previously been approved by the respondent. Furthermore, as the proposed subdivision would only result in a single additional dwelling, it should be considered as a minor variation.
Mr Algeri gave evidence as an expert planner on behalf of the applicants. He furnished a statement of evidence and also prepared a joint expert report with the two planners called on behalf of the respondents.
Mr Cardozo, one of the applicants, also gave evidence and had undertaken extensive research in respect of previous subdivisions in the area.
The applicants pointed out that in the case of 10 Sydenham Street, the respondent had supported a departure from the scheme based on the quality of refurbishments to the existing dwelling.
That was borne out in the respondent's planner's report dated 30 July 2009, in considering the present application under the heading 'Previous Applications', which stated:
On 7 July 2009, the Statutory Planning Committee resolved to approve an application to subdivide a flexible coded corner lot to a density of R30 (WAPC Ref: 176808). The City of Belmont were not supportive as the proposal incorporated retention of an existing dwelling which is contrary to Clause 10.2.2.1 of TPS 14. However, in that instance the existing dwelling had been extensively renovated internally and externally to the equivalent maintenance standard of a new dwelling. In this instance the dwellings to be retained have not been upgraded and the City of Belmont is not supportive of the applicant entering into a legal agreement to upgrade the dwellings.
The applicants dealt with that view at some length and took issue with the comment that, in the present instance, the dwellings to be retained have not been upgraded. They gave evidence of work that had been done on the properties and further work that was proposed, and submitted that all of the improvements would produce a superior finished product.
Mr Algeri, on behalf of the applicants, stated:
… the applicant does not see what is so catastrophic about a proposal that retains and refurbishes two existing dwellings and potentially allows for a new dwelling with street frontage on a secondary street where there is currently nothing more than a fence and a garage.
In respect of the provisions of TPS 14, and in particular cl 10.2.2, Mr Cardozo stated:
… to be truly consistent with the principles of proper and orderly planning, the said scheme, and/or policy provisions, should perhaps be amended to expressly allow for this type of situation.
And later:
… the applicant sincerely believes that district zoning scheme 14, and particularly clause 10.2, does not appropriately deal with the circumstances of the proposal and does not result in a net planning benefit if it is to approve. So I understand what the scheme says, the applicant understands that, but through an evolution of amendments we feel that it was not catered specifically for this type of application. So if it is to be truly considered on its merits there is cause for the application to be approved.

Respondent's submissions

Mr Jason Bouwhuis, the Senior Project Planner at the Department of Planning gave evidence on behalf of the respondent, as did Ms Juliette Gillan, the Manger of Planning Services at the City of Belmont (City).
Mr Bouwhuis was of the view that although the respondent has the discretion to approve an application, it is contrary to the R Codes, TPS 14 and the State's Development Control Policies, and would require, in his words, 'exceptional circumstances to depart from orderly and proper planning to do so'.
Ms Gillan, on the other hand, was of the view that the improvement proposed to the two existing dwellings at Lot 37 and Lot 38, Belmont Avenue does not meet the intent of TPS 14. She was of the view that the requirement for the demolition of the existing dwellings as per the Scheme was the preferable outcome.
In respect of the precedent referred to by the applicants at 10 Sydenham Street, Mr Bouwhuis believed that approval was warranted in that case and that approval represented a minor variation from the provisions of TPS 14 as the existing dwelling had already been externally upgraded, no amalgamation was proposed and the vacant lot created was on the corner.
Ms Gillan, on the other hand, explained that departure from the requirement of cl 10.2.2.1 was not supported by the City in that case, as it is not supported in the present case. Ms Gillan explained that the intent of the Scheme provisions was to facilitate a higher standard of development for corner lots.
In answer to a question from the Tribunal in respect of the City's view of the respondent's approval for 10 Sydenham Street, Ms Gillan stated:
The city was opposed to the subdivision, notwithstanding the upgrading of the building, which we did acknowledge, in that particular case, was of a high standard. I guess for the reason that we have been consistently opposed to the development without the demolition on the corner lots, we were still opposed to it later.
While acknowledging the approval given in respect of 10 Sydenham Street, the respondent argued that the present application, in circumstances where an amalgamation was taking place and the vacant lot created would not be a corner lot, should be distinguished from that approval and that, furthermore, approval of this application would set an undesirable precedent in respect of other corner lots.

Consideration

As part of the Tribunal processes, the three planning experts, Ms Gillan, Mr Bouwhuis and Mr Algeri conferred and produced a joint expert report dated 12 March 2010.
At para 3 of that report, they jointly state:
a)The experts agree that the retention of the two existing dwellings at Lot 38 and Lot 37 Belmont Avenue, Kewdale is inconsistent with specific objectives of the City of Belmont ('City') District Zoning Scheme No. 14 ('DZS 14') and Local Planning Policy No. 1 titled City Performance Criteria - Medium Density Residential Development. ('LPP 1')
b)The experts agree that subdivision and/or development of corner lots at a density higher than those surrounding cannot be considered an unusual or rare occurrence in the City given the objectives of DZS 14.
c)The experts agree that the existing dwellings on Lots [sic] 37 and Lot 38 are in fair condition with no substantial external modifications since their construction and are representative of the housing stock in the locality.
Each of the planners went on to outline what they described as their additional concerns which covered, among other things, issues such as consistency in decisionmaking with various statutory planning instruments, streetscape and precedent.
Mr Bouwhuis explained that 10 Sydenham Street had been extensively renovated and no amalgamation had been proposed which, in his opinion, allowed the respondent to deal with that matter as a conflict of a minor nature with the provisions of TPS 14 as per s 138(3)(c)(i) of the Planning and Development Act 2005 (WA).
Section 138(3)(c) of the PD Act states:
The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if
…
(c)in the opinion of the Commission
(i)the conflict is of a minor nature; or
(ii)the approval is consistent with the general intent of the local planning scheme;
…
Ms Gillan, in her statement of evidence to the Tribunal, when discussing TPS 14, and in particular cl 10.2.2.2, stated at para 24 c):
Clause 10.2.2.2 of DZS was included under Amendment No. 4 to ensure that the density bonus applicable to corner lots in R20 Coded areas was not abused for the purpose of creating small lot on a larger scale than was ever intended. When Clause 10.2.2.1 was amended under Amendment No. 32 the provisions of 10.2.2.2 thereby applied to all split coded lots also despite the fact that the concern related originally only to R20 Coded corner lots.
And at 24 d):
I was responsible for the drafting of Amendment No. 32 (which modified Clause 10.2.2.1 among other things) to DZS 14. The requirement to demolish all existing improvements was extended to apply not only to corner lots in the R20 coded areas but also to where a split coding applies under Amendment 32 to DZS 14. …
Ms Gillan was of the opinion that although the renovations proposed would improve the appearance of the dwellings, they would not in her opinion, enhance the character and amenity of the locality.
The requirement under cl 10.2.2.1, referred to by Ms Gillan, that all existing improvements are to be demolished in the event that Council supports the subdivision of existing flexibly-coded or R20coded corner lots to a density of R30, appears plain on its face, and one can understand the planning rationale of attempting to get corner lots upgraded in this way.
Furthermore, the restriction that an R20 code shall apply when lots have been amalgamated with an existing corner lot to create a larger lot for the purposes of the subdivision, as per cl 10.2.2.3, is also understandable.
In her statement of evidence, Ms Gillan explained the rationale for wanting new dwellings on corner lots by stating:
… it was thought that any new dwelling on a corner lot would maximise the opportunities afforded by two street frontages by addressing both frontages; locating outdoor areas away from highly trafficked roads; and vehicle access from quieter roads.
The Tribunal, sitting in the shoes of the Commission, must be satisfied, pursuant to s 138(3)(c), that any conflict between what is proposed and the Scheme is of a minor nature or that an approval would be consistent with the general intent of the local planning scheme.
Much was said in respect of the Commission's earlier approval of 10 Sydenham Street where an upgraded dwelling was allowed to remain. However, in the present case, two older dwellings are being retained, although upgraded, an amalgamation is necessary, and the experts confirmed that the three lot sizes that would be created would fall into the R30 coding rather than R20.
The applicants in their submission relied heavily on the previous approval the respondent had given in respect of 10 Sydenham Street.
But 10 Sydenham Street qualified to be considered for subdivision in its own right, whereas Lot 38, which is the existing corner lot in the present application, would not qualify for subdivision without being amalgamated with Lot 37.
Furthermore, with 10 Sydenham Street, the vacant lot created was a corner lot, while in the present application the existing house on Lot 38, which is the corner lot, would remain, albeit upgraded, with the vacant lot being created not as a corner lot but facing directly onto Ross Street.
In the present case, in light of the Scheme provisions to approve the proposed subdivision, discretion needs to be exercised in respect of two issues; namely:
1)that the size of the resulting lots could comply with the R30 coding requirements rather than the R20 as is required by cl 10.2.2.3 of TPS 14; and
2)the existing houses on Lots 37 and 38 could remain rather than be demolished, as per cl 10.2.2.1(a) of TPS 14.
It is noted that the respondent believed that the conflict with TPS 14 in the case of 10 Sydenham Street was minor, and the applicants in the present case submit that any conflict between this application and TPS 14 should also be considered to be minor.
The Tribunal is not of the same view.
The Tribunal agrees with the City's reasoning and, in light of the present application, in hindsight the respondent may see its decision in respect of 10 Sydenham Street to be an unfortunate departure from considered Scheme provisions.
Ms Gillan stated in direct evidence:
… we keep referring to the Knutsford example and I think that did provide an example of where we're retaining the existing houses has raised the question of whether it should be permitted elsewhere. I think once you start retaining dwellings on corner lots, whether they're amalgamated or not, it opens the floodgates throughout the city in the R20 areas as well as the split-coded areas.
In commenting on that, Mr Bouwhuis stated:
The other consideration in relation to lot 10 Knutsford, it's the house that has been retained is not on the corner and the city is going to - they're anticipating serving a new model dwelling on the corner of that - what was previously lot 10 …
Mr Algeri, in evidence, stated:
Yes, to be truly consistent with the principles of proper and orderly planning, the said scheme, and/or policy provisions, should perhaps be amended to expressly allow for this type of situation.
And later:
… the applicant sincerely believes that district zoning scheme 14, and particularly clause 10.2, does not appropriately deal with the circumstances of the proposal and does not result in a net planning benefit if it is to approve.
In answering the core question in the present case as to whether an amalgamation and subdivision should be approved without -
a)requiring the demolition of the existing buildings, as required by cl 10.2.2.1(a) of TPS 14, and
b)allowing an R coding of R30 rather than the R20.
the Tribunal is of the view that, based on all of the evidence before it, that is not a conflict with the provisions of TPS 14 that should be considered minor, nor is it an approval that would be consistent with the general intent of TPS 14.

Clause 10.2.2.2 of TPS 14 itself tells us what is not consistent by stating:
The amalgamation of abutting lots with an existing corner lot in order to create a larger lot for the purpose of development and/or resubdivision at a higher density is not consistent with the intent of the provisions and the R20 code shall apply to the amalgamated lot. (Tribunal emphasis)
Further, the three planning experts at para 3(a) of their joint report agreed:
… that the retention of the two existing dwellings at Lot 38 and Lot 37 Belmont Avenue, Kewdale is inconsistent with specific objectives of the City of Belmont ('City') District Zoning Scheme No. 14 ('DZS 14') under Local Planning Policy No. 1 titled City Performance Criteria - Medium Density Residential Development. ('LPP 1') (Tribunal emphasis)
Ms Gillan, on behalf of the City, was clear as to the intent of the Scheme and what the City was trying to achieve.
Clause 10.2.2 seeks to attain particular planning objectives in respect of corner lots, and clearly the City has revised and refined its thinking by means of the various amendments to that clause.
To say that the respondent has approved a similar application at 10 Sydenham Street, and so it can or should be done again, is not enough, particularly when the circumstances are clearly not the same. Decisionmaking consistent with the general intent of the local planning scheme is important.
By allowing subdivision of 10 Sydenham Street, the respondent has allowed the applicants in this matter to argue that a precedent has already been set. By approving this application, it would only strengthen that argument, and allow parties in similar situations in the City to apply in the same way as the applicants.
To do so risks one being reduced to arguing the merits of various upgrades and renovations and whether they reach an unknown subjective standard, that is not good planning.
As Ms Gillan stated:
I think once you start retaining dwellings on corner lots, whether they are amalgamated or not, it opens the floodgates throughout the City in the R20 areas as well as the splitcoded areas.
In all the circumstances, the Tribunal, for the reasons outlined above, is not prepared to exercise its discretion in line with s 138(3)(c) of the PD Act, to allow the application for review, which will be dismissed, and the respondent's decision of 31 July 2009 affirmed.

Orders

1.The application for review is dismissed.
2.The decision of the respondent dated 31 July 2009 is affirmed.

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER