Cole and Western Australian Planning Commission
[2014] WASAT 102
•25 AUGUST 2014
COLE and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 102
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 102 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:31/2014 | 6 AUGUST 2014 | |
| Coram: | MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 25/08/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Review dismissed and decision of respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | JOHN COLE WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision conditions Drainage requirements Vehicular access to a regional road Inconsistent application of conditions Reciprocal rights of access Location of crossovers Application of Western Australian Planning Commission policy |
Legislation: | Land Administration Act 1997 (WA), s 195, s 196 Planning and Development Act 2005 (WA), s 150, s 150(1), s 152, s 167, s 167(1)(b)(i) Planning and Development Regulations 2009 (WA), Div 3 Shire of York Town Planning Scheme No 2, Pt II State Administrative Tribunal Act 2004 (WA), s 31(1) Transfer of Land Act 1893 (WA), s 70A |
Case References: | Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Tooth and the City of Subiaco [2005] WASAT 317 Trickey and the City of Subiaco [2005] WASAT 256 |
Orders | On the application heard on 6 August 2014 before Senior Sessional Member Patric De Villiers, it is on 25 August 2014 ordered that:,1. The review is dismissed and the decision of the respondent is affirmed. |
Summary | Since 2006, a range of proposals for the subdivision of Lot 51 Panmure Road in the townsite of York has been discussed by Mr John Cole, the applicant, with both the Shire of York and the Department of Planning. A number of these have been formally assessed by the Western Australian Planning Commission and subsequent appeals have involved the Tribunal on two previous occasions.,In 2011, the lot was subdivided excising a rectangular lot in the northeastern section of the property and the current review involves a proposal to create two additional lots on the remainder of the land.,The current approval of the Western Australian Planning Commission was subject to a number of conditions which the applicant considered unacceptable, triggering the current review.,The two substantive issues were the potential requirement for drainage easements and reserves on the land, and the intention of the respondent which sought to preclude direct access from one of the proposed lots to Panmure Road.,In regard to the drainage condition, the Tribunal found that while it accepted the submission of the applicant that the drainage system in the locality was currently incomplete, it did not, given the evidence provided by the respondent, accept that the condition was not required.,In terms of restriction on access to Panmure Road sought by the respondent, while the Tribunal recognised the clearly regrettable impact on the applicant of rectifying a previous administrative oversight which had seen previous subdivisions in the locality approved without such a restriction, it accepted the convincing technical evidence of the need, on safety grounds, to minimise the number of junctions or driveways on a regional road.,For those reasons, the review was dismissed and the decision of the respondent affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : COLE and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 102 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 6 AUGUST 2014 DELIVERED : 25 AUGUST 2014 FILE NO/S : DR 31 of 2014 BETWEEN : JOHN COLE
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision conditions Drainage requirements Vehicular access to a regional road Inconsistent application of conditions Reciprocal rights of access Location of crossovers Application of Western Australian Planning Commission policy
Legislation:
Land Administration Act 1997 (WA), s 195, s 196
Planning and Development Act 2005 (WA), s 150, s 150(1), s 152, s 167, s 167(1)(b)(i)
Planning and Development Regulations 2009 (WA), Div 3
Shire of York Town Planning Scheme No 2, Pt II
State Administrative Tribunal Act 2004 (WA), s 31(1)
Transfer of Land Act 1893 (WA), s 70A
Result:
Review dismissed and decision of respondent affirmed
Summary of Tribunal's decision:
Since 2006, a range of proposals for the subdivision of Lot 51 Panmure Road in the townsite of York has been discussed by Mr John Cole, the applicant, with both the Shire of York and the Department of Planning. A number of these have been formally assessed by the Western Australian Planning Commission and subsequent appeals have involved the Tribunal on two previous occasions.
In 2011, the lot was subdivided excising a rectangular lot in the northeastern section of the property and the current review involves a proposal to create two additional lots on the remainder of the land.
The current approval of the Western Australian Planning Commission was subject to a number of conditions which the applicant considered unacceptable, triggering the current review.
The two substantive issues were the potential requirement for drainage easements and reserves on the land, and the intention of the respondent which sought to preclude direct access from one of the proposed lots to Panmure Road.
In regard to the drainage condition, the Tribunal found that while it accepted the submission of the applicant that the drainage system in the locality was currently incomplete, it did not, given the evidence provided by the respondent, accept that the condition was not required.
In terms of restriction on access to Panmure Road sought by the respondent, while the Tribunal recognised the clearly regrettable impact on the applicant of rectifying a previous administrative oversight which had seen previous subdivisions in the locality approved without such a restriction, it accepted the convincing technical evidence of the need, on safety grounds, to minimise the number of junctions or driveways on a regional road.
For those reasons, the review was dismissed and the decision of the respondent affirmed.
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr R Hodges (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Tooth and the City of Subiaco [2005] WASAT 317
Trickey and the City of Subiaco [2005] WASAT 256
Introduction
1 The site the subject of this review is Lot 51 Panmure Road, York (subject site or lot). The land is located on the western side of Panmure Road within the York townsite, and originally comprised a total area of 6,239m2.
2 In 2011, the lot was subdivided excising a rectangular lot (Lot 102) in the north-eastern section of the property facing Panmure Road and providing for a 4 metre wide drainage reserve along the southern boundary.
3 A dispute over a condition attached to that approval was resolved through mediation in the Tribunal.
4 The initial proposal for subdivision of the remainder of the lot was refused by the Western Australian Planning Commission (Commission) in August 2013 on the grounds that it did not comply with minimum lot size or frontage requirements. An application was subsequently made to the Tribunal for a review of this decision. Following mediation, the Commission was invited to reconsider its decision pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA).
5 In response, on 12 June 2014, the Commission approved a subdivision which involved dividing the remainder of the land to create a lot of 2,000m2 (Lot 104) in the south-eastern section of the property facing Panmure Road and a second battleaxe lot at the rear with an accessway located centrally between the existing Lot 102 and the proposed Lot 104.
6 This approval was subject to the following conditions:
1. Prior to the Western Australian Planning Commission's endorsement of a diagram or plan of survey (deposited plan) for the creation of lots proposed by this application, the lot that is the subject of this application being created on a separate diagram or plan of survey (deposited plan) and the plan being endorsed by the Western Australian Planning Commission. (Western Australian Planning Commission)
2. The land being filled, stabilised, drained and/or graded as required to ensure that:
a) lots can accommodate their intended development; and
b). stormwater is contained on-site, or appropriately treated and connected to the local drainage system. (Local Government)
3. Drainage easements and reserves as may be required by the local government for drainage infrastructure being shown on the diagram or plan of survey (deposited plan) as such, granted free of cost, and vested in that local government under Sections 152 and 167 of the Planning and Development Act 2005. (Local Government)
4. The proposed accessway(s) being constructed and drained at the landowner/applicant's cost to the specifications of the local government. (Local Government)
5. Suitable arrangements being made with the local government for the provision of a vehicular crossover to service the lot(s) shown on the approved plan of subdivision to the specification of Main Roads WA. (Local Government)
6. Redundant vehicle crossover(s) to be removed and the kerbing, verge, and footpath (where relevant) reinstated with grass or landscaping to the satisfaction of the Western Australian Planning Commission and to the specifications of the local government. (Local Government)
7. Easement(s) in accordance with Sections 195 and 196 of the Land Administration Act 1997 for the benefit of the Shire of York are to be placed on the certificate(s) of title of the proposed lot(s) specifying access rights. Notice of this easement(s) is to be included on the diagram or plan of survey (deposited plan). The easement(s) are to provide reciprocal right of way for all lots. (Local Government)
8. 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)
9. Pursuant to Section 150 of the Planning and Development Act 2005 and Division 3 of the Planning and Development Regulations 2009 a covenant preventing vehicular access onto Panmure Road being lodged on the certificate of title of proposed Lot 104 at the full expense of the landowner/applicant. The covenant is to prevent access, to the benefit of Main Roads, and the covenant is to specify:
No vehicular access is permitted to and from Panmure Road. (Main Roads)
10. Arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lots shown on the approved plan of subdivision. (Water Corporation)
11. A notification, pursuant to Section 70A of the Transfer of Land Act 1893 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 to the lot/s. (Local Government)
Site and locality
8 The subject site is located within the York townsite east of the Avon River and approximately 900 metres north-east of the town centre. It falls within the street block bounded by Lincoln Street (north), Panmure Road (east), New Street (south) and Newcastle Street (west).
9 There are approximately 30 lots within the street block, with smaller lots fronting Lincoln Street and New Street, while the middle portion of the street block contains larger lots ranging in size from 7,227m2 to 16,289m2.
10 The subject land slopes to the south-west and drains towards the Avon River. There are no improvements on the lot. The block immediately to the south has a residence set back approximately 30 metres from the southern boundary of the subject land, and a single residence on a large lot is located on the eastern side of Panmure Road opposite Lot 102.
11 Apart from a limited number of trees close to Panmure Road, particularly on the eastern side, the immediate area is generally devoid of any substantive vegetation.
Planning framework
12 The subject land is zoned Residential under the Shire of York Town Planning Scheme No 2 (Scheme or TPS 2). It has a density coding of R5.
13 The Commission's Development Control Policy 1.1 Subdivision of Land - General Principles at clause 3.8.2, in seeking to ensure new lots are physically capable of development, makes provision for the Commission to require 'the land being filled and drained' or 'connected to an external system of drainage'.
14 Liveable Neighbourhoods, which has been adopted by the Commission as an operational policy, deals, in Element 5, with urban water management. This policy establishes a number of objectives, which include:
O3 To protect the built environment from flooding, inundation and stormwater damage.
…
O8 To provide an urban water management system that is sustainable and that arrangements are in place for on-going maintenance and management.
15 These aspects are reflected in the application requirements which require that subdivision and development should have regard to an urban water management strategy which addresses, among other aspects, the need to protect 'people, property and the built environment from stormwater and flooding', and provides for 'on-going management arrangements (including maintenance costs) and responsibilities'.
16 The Commission's Development Control Policy 5.4 Road and Rail Transport Noise and Freight Considerations in Land Use Planning (DC 5.4), at Sch 2, classifies Panmure Road (which Main Roads WA (MRWA)) designates as Northam Cranbrook Road) as a primary freight route for the South West Region. Under the MRWA Road Hierarchy, it is classified as a primary distributor.
17 The Commission's Development Control Policy DC 1.4 Functional Road Classification for Planning categorises primary distributors as follows:
Primary Distributors form the top level network for the urban region. They carry longer distance traffic to, from, and across the urban area. Some will connect with the State or national road network running between urban areas.
18 The Commission's Development Control Policy 5.1 Regional Roads (Vehicular Access) (DC 5.1) establishes the following objectives:
To outline planning principles to be applied in the determination of proposals for vehicle access to regional roads.
…
To improve traffic flow and safety on all regional roads, either new or existing, by minimising the number of junctions or driveways.
- Clause 3.1.1 of this policy establishes the general access parameters for regional roads as follows:
3.1.1 A safe environment and an efficient road system require compatibility between development abutting the road and vehicular and pedestrian traffic movement. As regional roads are principally for traffic movement, ideally there should be no vehicular access to or from abutting properties.
… In general, the Commission will seek to minimise the creation of new driveways on regional roads and rationalise existing access arrangements.
- and, at clause 3.3.2:
… On regional roads not constructed or planned to freeway standards, there is a general presumption on traffic and safety grounds against the creation of new driveways or increased use of existing accesses to these roads. Where alternative access is or could be made available from side or rear streets or from rights of way, no access shall be permitted to the regional road unless special circumstances apply.
Without limiting section 143, the Commission may impose a condition under that section that access to and from a portion of land shown on a plan or diagram of survey relating to the subdivision to a road abutting the portion of land is to be restricted or prohibited as set out in the condition and in accordance with the regulations.
21 In addition, s 167 of the PD Act requires that where a diagram or plan of survey of a subdivision on which it is shown that any land comprised in the diagram or plan is subject to or intended to be subject to an easement in favour of:
(i) the local government in whose district the land is situated, for the purposes of sewerage or drainage or access to sewerage or drainage works; (emphasis added),
- that land shall become subject to an easement in favour of the person or authority mentioned on the plan or diagram for the purpose mentioned on the diagram or plan.
22 Section 152 of the PD Act makes provision for one or more portions of land approved for subdivision required for, among other purposes, a reserve for sewerage or drainage, and subject to a condition of the approval, to be vested in Crown without any conveyance, transfer or assignment or the payment of any fee.
23 Finally, in 2006, the Shire of York (Shire) initiated the preparation of the Panmure Road Precinct Outline Development Plan. This plan sought to limit access to Panmure Road and proposed an access road on the boundary line between Lot 51 (subject land) and Lot 52 to the south. In spite of extensive consultation and a number of modifications, the structure plan did not receive final endorsement from the Commission and was terminated in 2010.
The issues
24 The questions at issue between the parties in the matter under review relate to four conditions placed on the approval dated 12 June 2014.
25 The applicant is objecting to the following conditions:
…
3. Drainage easements and reserves as may be required by the local government for drainage infrastructure being shown on the diagram or plan of survey (deposited plan) as such, granted free of cost, and vested in that local government under Sections 152 and 167 of the Planning and Development Act 2005. (Local Government)
…
6. Redundant vehicle crossover(s) to be removed and the kerbing, verge, and footpath (where relevant) reinstated with grass or landscaping to the satisfaction of the Western Australian Planning Commission and to the specifications of the local government. (Local Government)
7. Easement(s) in accordance with Sections 195 and 196 of the Land Administration Act 1997 for the benefit of the Shire of York are to be placed on the certificate(s) of title of the proposed lot(s) specifying access rights. Notice of the easement(s) is to be included on the diagram or plan of survey (deposited plan). The easement(s) are to provide reciprocal right of way for all lots. (Local Government)
…
9. Pursuant to Section 150 of the Planning and Development Act 2005 and Division 3 of the Planning and Development Regulations 2009 a covenant preventing vehicular access onto Panmure Road being lodged on the certificate of title of proposed Lot 104 at the full expense of the landowner/applicant. The covenant is to prevent access, to the benefit of Main Roads, and the covenant is to specify:
No vehicular access is permitted to and from Panmure Road. (Main Roads)[.]
27 The objections to conditions 6, 7 and 9 are interrelated and go to the decision of the respondent in dealing with the application for subdivision to seek to preclude direct access from Lot 104 to Panmure Road.
28 The Tribunal will deal first with condition 3 and then proceed to address conditions 6, 7 and 9.
Condition 3: drainage easements and reserves as may be required
29 The applicant's submission on condition 3 is that s 167(1)(b)(i) of the PD Act, which reads 'the local government in whose district the land is situated, for the purposes of sewerage or drainage or access to sewerage or drainage works' is to allow local government access to existing drainage infrastructure for the purposes of maintenance etc'.
30 The applicant further submits that the Shire has been adequately maintaining the drainage reserve along the southern boundary of Lot 51 since its creation and has not raised the issues of access for ongoing maintenance.
31 In addition, as no such condition was attached to previous approvals on the land, the applicant is of the view that it would be inconsistent to seek such a condition on the current approval.
32 The position of the Shire on drainage was set out in an attachment to the witness statement of Ms Jacqueline Jurman, Manager of Planning Services at the Shire.
33 The Shire argues that it is essential that drainage channels are clearly identified to current and future property owners, and protected. As they are required to connect and align across property boundaries, they need to be kept clear to work effectively, and the Shire needs to have a legal right to access to ensure this is the case.
34 Mr Peter Wright, an expert planning witness for the respondent, argued that the Shire has indicated it is highly likely easements and reserves will be required along the rear boundaries of proposed Lots 105 and 102, and until such time as the applicant submits and the Shire approves drainage details for the property, the requirement for easements and reserves remains unknown. In this context, he submitted that should the need for easements and/or reserves be identified, a statutory mechanism would be required to ensure their provision, and without such a condition, local government would have no ability to ensure the drainage infrastructure was appropriately protected and maintained.
35 At the hearing, Mr Cole argued that the requirement for easements was difficult to accept, given the incomplete nature of drainage works on his property, the fact that no inundation of adjoining properties had occurred, and given that a house had been constructed to the west on the drainage alignment. In his view, there is no drainage problem in the locality and no genuine need for additional drainage infrastructure arising from the subdivision of this land.
36 While accepting the submission of the applicant that the drainage system in the locality is at present incomplete, the Tribunal accepts, on the evidence before it from the respondent, that there is a legitimate technical need to establish a comprehensive drainage system in the area in the future.
37 The respondent argued that condition 2, which required the land to be drained, had not been contested by the applicant, and evidence provided to the Tribunal established that the containment of stormwater onsite, given the soil conditions in the locality, was not feasible. In this context, the respondent submitted that condition 3 was necessary to ensure that condition 2 was implemented and that stormwater was connected to the local drainage system as required.
38 It was the evidence of Ms Jurman that condition 3 was a standard Commission condition on subdivisions and had been applied and enforced on other subdivision proposals in the municipality. Evidence provided in evidence established that a condition requiring drainage easements or reserves had been applied to two previous applications on the subject land (condition 8 on Application 132264 dated 23 July 2009 and condition 2 on Application 144541 dated 30 September 2011). While these conditions did not formally include a reference to vesting under s 152 and s 167 of the PD Act, the Tribunal accepts the submission of the respondent that this addition does not in any substantive sense alter the requirement of the condition.
39 While the Tribunal accepts the submission of the applicant that the drainage system in the locality is incomplete, given the evidence provided by the respondent in this matter, it does not accept that the condition is not required. Further, while the Tribunal accepts that the wording of the condition is somewhat different to that applied to previous approvals on the subject land, this difference is one of detail rather than substance and, based on the nature of the addition made, one cannot reasonably draw an inference of the inconsistent application of policy by the Commission in this regard.
Conditions 6, 7 and 9
40 The substantive issue in regard to conditions 6, 7 and 9 is the respondent's intention to preclude direct access from Lot 104 to Panmure Road.
41 The applicant submits that the existing crossover was installed in conjunction with the installation of drainage works by the Shire, and this location has never been disputed by MRWA. Given that this was installed without consultation, the applicant objects to removing and replacing this crossover at his expense.
42 In regard to the requirement to provide for reciprocal rights of way, the applicant submits that many other battleaxe lots have been created in the York locality without this condition being imposed. In addition, a property comprising three lots with similar access arrangements to those proposed on the subject land was recently approved directly across the road with unrestricted access from all the lots to Panmure Road.
43 The applicant also contends that the argument put by MRWA for the inclusion of these conditions is one based on a recent change of policy, and nowhere else along Panmure Road has this restriction been imposed. In addition, in his view, as most of the existing lots in the 'Panmure Precinct' have already been developed, the proposed access arrangements would not constitute an undesirable precedent in the locality.
44 Ms Hartley-West, an expert witness from MRWA called by the respondent, advised that Panmure Road (designated by MRWA as Northam Cranbrook Road) was a primary distributor road under the care and responsibility of MRWA, with a two lane carriageway within a 25 metre reservation and a posted speed limit of 60 kms.
45 Ms Hartley-West submitted that a primary distributor road is the highest classification applied by MRWA, and that the role of such roads was to provide for major regional and inter-regional traffic and to carry large volumes of generally fast moving traffic. Northam Cranbrook Road is also identified as a primary freight route under DC 5.4. In addition, she advised that a variety of truck and trailer combinations which are not normally permitted to travel on the road network at large are permitted, under the relevant permits and notices, to travel on Northam Cranbrook Road.
46 Traffic counts on the road identified a flow of 1985 vpd (November 2012), of which 289 (14%) were heavy vehicles. Accident statistics for the period 1 January 2009 to 31 December 2013 were six incidents, of which three involved vehicles turning.
47 At the hearing, Ms Hartley-West provided evidence that the period from 2009 to 2013 had seen a 5% increase in traffic and that it was her expectation that a similar increase could be expected in the next four to five years. In responding to a question from the applicant, she advised that while MRWA, in responding to changed circumstances, may reduce the speed limit on Panmure Road from 60 kms to 50 kms, this would not change their position in seeking to limit access to this road.
48 Ms Hartley-West concluded that Northam Cranbrook Road was a busy traffic route and that, in her view, the number of accidents reflected high traffic volumes and the presence of numerous conflict points. In this context, she argued that the number of potential conflict points on this road needed to be minimised where possible.
49 Mr Peter Wright, an expert planning witness for the respondent, submitted that the intentions behind conditions 6, 7 and 9 are to restrict the number of access points onto this regional road (Panmure Road) in order to enhance safety and avoid inconvenience to through traffic.
50 While he conceded that only one additional access point would be created under the proposed subdivision, he argued that if this type of subdivision was replicated, the cumulative impact in the locality was likely to be substantial. In seeking to substantiate this argument, he provided a potential subdivision plan which identified four other lots in the immediate area (that is, on the western side of Panmure Road between Lincoln Street and New Street) where such subdivision was a possibility. This plan was challenged by the applicant on the basis that the narrow frontages of such lots could preclude the suggested layout and, in his view, the fact that, as most of the lots were already developed, further subdivision in the locality was highly unlikely.
51 Mr Wright also submitted that while he conceded there has been no similar restriction placed on any other lot facing Panmure Road, this was because no other battleaxe lots had been proposed fronting Panmure Road. While such applications had been approved in the locality, none of these subdivisions took access from a regional road.
52 It emerged at the hearing that, as the applicant submitted, restrictions on access to Panmure Road had not been placed on previous subdivision applications in the locality in spite of the fact that the Commission's Development Control Policy DC 5.1 Regional Roads (Vehicular Access) has been in place since 1998. Ms Hartley-West advised that the reason was that previous applications had not been submitted to MRWA for review. Apparently, this had resulted from an administrative oversight that meant that Panmure Road (designated as 'Northbrook/Cranbrook Road' by MRWA) had not been included in the Commission's schedule of main roads which constituted the trigger for referral. MRWA is currently in discussions with the Commission to resolve this matter.
53 In this regard, the applicant submitted that, in the light of the above admission, while it might be justifiable, in his view, to seek to have the restriction on access imposed on future applications, it would be unfair to apply this restriction to the application under review, given the application had been in train for an extended period of time and previous applications on the subject land had not had this condition applied. He also submitted that, in his view, one additional access point would not have a substantial impact.
54 The applicant also suggested that he was willing to co-locate the proposed crossovers (one to Lot 102 arising from the previous subdivision and the two proposed for Lots 104 and 105) in a central position on the subject land. Ms Hartley-West advised that such a proposal would not be acceptable to MRWA as, for safety reasons, it would seek to establish the maximum possible separation between access points onto regional roads.
55 In this review, the Tribunal is required to weight the obvious inconvenience of what the applicant submits is the inconsistent application of policy against the veracity, in this case, of applying the principles set out in the Commission's policy.
56 As Barker J held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], the existence of a policy cannot replace the discretion of the decision-makerin the sense that it is to be inflexibly applied regardless of the merits of theparticular case. However, 'the relevant consideration in manyapplications will be why the "policy" should not be applied; why theplanning principles that find expression in the "policy" are not relevant tothe particular application'.
57 Decisions of the Tribunal, which include Trickey and the City of Subiaco [2005] WASAT 256 and Tooth and the City of Subiaco [2005] WASAT 317, show that a policy applied to 'hold the line' is anacceptable regulatory approach. Thus, the fact that other contraryexamples might be produced to undermine the effect of the policy does notmean that the policy has no further work to do.
58 On the basis of the evidence before it in this matter, while the Tribunal recognises the clearly regrettable impact on the applicant of rectifying a previous administrative oversight, it accepts the convincing technical evidence of the need, on safety grounds, to minimise the number of junctions or driveways on a regional road. Therefore, the Tribunal is of the view that, all matters considered, the application of the policy constitutes in this particular case the correct and preferable outcome.
Conclusion
59 The proposals to subdivide Lot 51 Panmure Road have involved protracted negotiations between the parties and the local authority, and a number of formal determinations and appeals.
60 The outcome of this process has seen an approval to subdivide granted by the Commission; the outstanding matters at issue in this review are the objections of the applicant to a number of the conditions attached to that approval.
61 In regard to the question of drainage, the Tribunal cannot, in the light of the evidence provided, accept the submission of the applicant that there is no requirement for drainage arising from the subdivision and that a standard condition, applied to other subdivisions in the municipality, should not in this case also apply.
62 The administrative oversight that has meant that previous applications on Panmure Road, including those pertaining to the subject land, have not been referred to MRWA is most unfortunate. However, in spite of the understandable frustration of the applicant, it is clear, in terms of the strength of the evidence provided in this review, that the conditions restricting access from Lot 104 to Panmure Road are required and should be applied.
63 For these reasons, the review is dismissed and the decision of the respondent affirmed.
Orders
64 The Tribunal makes the following orders:
1. The review is dismissed and the decision of the respondent is affirmed.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P DE VILLIERS, SENIOR SESSIONAL MEMBER
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