CURLEWIS and CITY OF ALBANY - [2011] WASAT 169

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CURLEWIS and CITY OF ALBANY [2011] WASAT 169

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 27 SEPTEMBER 2011

DELIVERED : 25 OCTOBER 2011

FILE NO/S: DR 144 of 2011

BETWEEN: DIANE GAYE CURLEWIS
CLINTON DELAMOTTE
NATALIE DELAMOTTE
ALISON GALANTE
PETER GALANTE
STANLEY LEAM
ANNA LEAM
RAMIN MAJIDI
CAROLYN MICHELLE BELL
PETER JOHN BELL
CLAIRE TWADDLE
PAULA ARCHER
LINDSAY JOYCE
SUZANNE JOYCE SEELEY
MARK RICHARD ROBINSON
GAIL KILPATRICK
VICTORIA EYRE
JONATHAN ERIC HOSKIN
PAMELA MARGARET HOSKIN
Applicants
AND
CITY OF ALBANY
Respondent
GROVE 20 PTY LTD
Intervener

Catchwords:

Town planning - Development application - Grouped dwellings - Single bedroom dwellings - Residential density - Development approval granted by responsible authority - Third party review application - Preliminary issue - Whether the density of the proposed development is capable of approval - Planning scheme stated that 'Density as depicted on the endorsed Structure Plan' and Structure Plan stated that the land 'may be developed for residential purposes at a density of 1 dwelling per 500 [square metres]' - Whether Structure Plan implicitly imposed R20 density coding - Structure Plan also stated that 'The Council will support land ... being subdivided into lot sizes not less than 300 [square metres] ...' - Whether Structure Plan implicitly varied minimum site area in R20 code from 440 square metres to 300 square metres - Whether there is discretion to reduce minimum average site area of 500 square metres and minimum site area of 300 square metres by up to one third for the purposes of a single bedroom dwelling - Whether common driveway and communal open space is to be included in the calculation of average site area

Legislation:

City of Albany Town Planning Scheme No 3,cl 5.7, cl 5.7(c), cl 6.7, Table III
Residential Design Codes of Western Australia (2010), cl 6.1.3A3, cl 6.1.3A3i, cl 6.11.3, Pt 6, Table 1, Appendix 1
State Administrative Tribunal Act 2004(WA), s 37(3)

Result:

The density of the proposed development is capable of approval

Category: B

Representation:

Counsel:

Applicants:     Mr LE James with Mr EF Samec
Respondent:     Mr CA Slarke
Intervener:     Mr GR Donaldson SC with Ms BA Moharich

Solicitors:

Applicants:     Samec Legal
Respondent:     McLeods
Intervener:     Flint Moharich

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

Curlewis and City of Albany [2011] WASAT 85

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal was called upon to determine a preliminary issue in a third party planning review proceeding as to whether the density of the proposed development is capable of approval. The proposed development comprises 28 grouped dwellings that are 'single bedroom dwellings' within the meaning of that term in the Residential Design Codes of Western Australia (2010) (Codes). A structure plan contained 'density provisions' stating that the site 'may be developed for residential purposes at a density of one dwelling per 500 [square metres]' and that the local authority will support subdivision 'into lot sizes not less than 300 [square metres]'. The average site area of the proposed development is 370.53 square metres (if common areas are included) or 237.1 square metres (if common areas are excluded) and the minimum site area of the proposed development is 203.7 square metres.
The resolution of the preliminary issue required determinations as to:
(1)the meaning and effect of the 'density provisions' in the structure plan;
(2)whether discretion is available under cl 6.1.3A3 of the Codes to reduce the minimum and average site areas for the purposes of a single bedroom dwelling; and
(3)whether common areas are included in the calculation of the average site area.
The Tribunal determined that, on its proper interpretation, when read in the context of relevant provisions of the local planning scheme, the 'density provisions' in the structure plan refers to the residential density code imposed, expressively or by implication, by the structure plan. In particular, the Tribunal determined that, by implication, the structure plan imposed a residential density code of R20 and varied the minimum site area that would otherwise be applicable in the R20 code from 440 square metres to 300 square metres.
The Tribunal also determined that there is discretion to reduce the average and minimum site areas by up to one third for the purposes of a single bedroom dwelling. In particular, although the structure plan varied the minimum site area from 440 square metres to 300 square metres, it did not disclose any intention to exclude an incentive to achieve the beneficial planning purpose of dwellings being designed to accommodate one or twoperson households that now make up over half of all households in Western Australia.
Finally, the Tribunal determined that common areas are properly included in the calculation of the average site area, having regard to the nature of 'density' control and the Explanatory Guidelines of the Codes.
The Tribunal therefore concluded that the density of the proposed development, which involves a minimum site area of 203.7 square metres and an average site area of 370.53 square metres, is capable of approval.

Introduction

This proceeding involves a third party review application brought by Diane Gaye Curlewis and 18 others (applicants), pursuant to cl 6.7 of the City of Albany Town Planning Scheme No 3 (TPS 3 or Scheme), in relation to the decision of the City of Albany (City or Council) to grant development approval for the construction of 28 grouped dwellings at No 20 (now Lot 98 on Deposited Plan 69917) Grove Street, Little Grove (site). The site is owned by Grove 20 Pty Ltd (Grove 20) which sought, and was granted, leave to intervene in the proceeding pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA): see Curlewis and City of Albany [2011] WASAT 85 at [111] - [119].
The site is zoned Residential Development under TPS 3 and is also subject to the Little Grove Structure Plan (LGSP) which is an outline development or structure plan approved by the Council and the Western Australian Planning Commission (Commission) under TPS 3. Clause 5.7 of TPS 3 states as follows:
(a)A copy of the Residential Design Codes is to be kept and made available for public inspection at the offices of the local government.
(b)Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential [D]esign Codes is to conform with the provisions of the Codes.
(c)The Residential [D]esign Codes density applicable to land within the Scheme Area is set out in Table [III].
Table III of TPS 3 is entitled 'RESIDENTIAL DESIGN CODES DENSITY APPLICABLE TO LAND WITHIN THE SCHEME AREA' and states as follows:

Lots connected to sewerage	R20
Lots not connected to sewerage	R5 subject to the Country Sewerage Policy
Part Lot 376 La Perouse Road, Goode Beach	R12.5
Lots Zoned Residential Development	Density as depicted on the endorsed Structure Plan

Clause 4.3 of the LGSP states, in part, as follows:
The density provisions as conferred by the Town Planning Scheme are hereby varied such that the following density provisions apply:
AThe Council will support land within Precincts 1 and 2 being subdivided into lot sizes not less than 300 [square metres] with a min average of 500 [square metres];
BLand within Precincts 1 and 2 may be developed for residential purposes at a density of one dwelling per 500 [square metres];
…
The site is located within Precinct 2 of the LGSP. The area occupied by and for the exclusive use or benefit of each dwelling proposed in the development application ranges from 203.7 square metres to 501.95 square metres. In addition, the proposed development includes a common driveway of 973.59 square metres and common open space of 2,762.14 square metres. The average of the areas occupied by and for the exclusive use or benefit of each dwelling (excluding the common driveway and communal open space) is 237.1 square metres. However, if the common driveway and communal open space were included in the calculation of the average site area, then the average site area of the proposed dwellings is 370.53 square metres.
Each of the 28 dwellings proposed in the development application is a 'single bedroom dwelling' within the meaning of that term in the Residential Design Codes of Western Australia (2010) (Codes). The term 'single bedroom dwelling' is defined in Appendix 1 of the Codes as follows:
A dwelling that contains a living room and no more than one other habitable room that is capable of use as a bedroom.
Clause 6.1.3A3 of the Codes includes the following acceptable development provision:
Subject to 6.1.2 only, the following variations to the minimum and average site areas set out in table 1 may be made:
ifor the purposes of an aged or dependent persons' dwelling or a single bedroom dwelling, the minimum site area may be reduced by up to one third, in accordance with part 6.11.2 and 6.11.3; …
Clause 6.11.3 of the Codes concerns single bedroom dwellings and contains the following acceptable development provision (A3) and corresponding performance criteria (P3):
A3Single bedroom dwellings with a maximum plot ratio area of 60 sq m.
P3Dwellings that provide limited accommodation, suitable for one or two persons.
Although, initially, the applicants raised a number of planning issues in relation to the proposed development, as a result of amendments and clarifications to the plans made through mediation, the sole issue remaining between the parties concerns the density of the proposal. The parties have identified the following preliminary issue for determination by the Tribunal:
Whether the density of the proposed development is capable of approval.
Mr GR Donaldson SC, who appeared with Ms BA Moharich on behalf of Grove 20, and Mr CA Slarke, who appeared on behalf of the City, submitted that, on the proper interpretation of cl 4.3 of the LGSP and relevant provisions of TPS 3 and the Codes, the density of the proposed development is capable of approval. In particular, Grove 20 and the City submitted that there is discretion under cl 6.1.3A3i of the Codes to reduce the otherwise applicable minimum site area of 300 square metres to 200 square metres, and to reduce the otherwise applicable minimum average site area of 500 square metres to 333.33 square metres (and that the common driveway and communal open space is properly to be included in the calculation of the average site area). Grove 20 and the City argued, therefore, that the density of the proposed development is capable of approval with a minimum site area for the proposed dwellings of 203.7 square metres and an average site area of 370.53 square metres.
In contrast, Mr LE James, who appeared with Mr EF Samec on behalf of the applicants, submitted that, on the proper interpretation of cl 4.3 of the LGSP and relevant provisions of TPS 3 and the Codes, the density of the proposed development is not capable of approval. In particular, the applicants submitted that the minimum site area that is applicable to the proposed development is 300 square metres per dwelling and that the applicable minimum average site area is 500 square metres per dwelling. The applicants submitted that discretion is not available under cl 6.1.3A3i of the Codes to reduce the applicable minimum and average site areas by up to one third. Alternatively, the applicants submitted that, if there was discretion to reduce the applicable minimum and average site areas by up to one third, the communal driveway and common open space is excluded from the calculation of average site area, with the consequence that the average site area of the proposed development (that is, 237.1 square metres) is less than the average site area of 500 square metres less one third (that is, 333.33 square metres). The applicants' principal arguments in support of their submissions will be addressed below.

Is the density of the proposed development capable of approval?

The resolution of the preliminary issue requires determinations as to:
(1)the meaning and effect of cl 4.3 of the LGSP;
(2)whether discretion is available under cl 6.1.3A3 of the Codes to reduce the minimum and average site areas; and
(3)whether common areas are included in the calculation of the average site area.
For reasons which follow, the Tribunal considers that, on its proper interpretation, when read in the context of relevant provisions of TPS 3, cl 4.3 of the LGSP relevantly:
(a)imposes a residential coding of R20 in respect of the site; and
(b)varies the minimum site area that would otherwise be applicable under Table 1 of the Codes in the R20 code by reducing it from 440 square metres to 300 square metres.
The introductory words of cl 4.3 of the LGSP, namely 'The density provisions as conferred by the Town Planning Scheme are hereby varied such that …', are erroneous and unnecessary for the purposes of the Scheme and the LGSP. The LGSP does not 'vary' the 'density provisions as conferred by the Town Planning Scheme'. Rather, in accordance with cl 5.7(c) and Table III of TPS 3, cl 4.3 of the LGSP specifies the 'density provisions' that apply in relation to Precincts 1 and 2, including the site. The 'density provisions' in cl 4.3 of the LGSP constitutes the 'Density as depicted on the endorsed Structure Plan' in relation to lots zoned Residential Development stated in Table III of TPS 3 which, in turn, is a reference to 'the Residential [D]esign Codes density applicable to land in the Scheme Area' stated in cl 5.7(c) of TPS 3. Read in the context of the words 'the Residential [D]esign Codes density applicable to land within the Scheme Area' in cl 5.7(c) of TPS 3, which authorises the provisions in Table III of the Scheme and, in turn, cl 4.3 of the LGSP, the expressions 'Density as depicted on the endorsed Structure Plan' in Table III of TPS 3 and 'density provisions' in cl 4.3 of the LGSP, refer to the residential density code imposed, expressly or by implication, by the applicable Structure Plan.
This interpretation is also supported by the Explanatory Guidelines of the Codes in relation to density control which identifies the R-Code number set out in Table 1 of the Codes as the primary control on 'density' of development. The Explanatory Guidelines states at page 3 as follows:
The R-Code number provides a guide to the permissible maximum density of development. For example, R20 generally indicates a density of 20 dwelling units per hectare. …
A guide to the minimum site area required per dwelling unit is obtained by inversion of the R-Code density. For example R20, 20 dwellings per hectare, indicates a site area of 500 sq m per dwelling. This is a guide only, for reasons that are set out below. …
By implication, cl 4.3 of the LGSP imposes a residential density coding of R20 for land in Precincts 1 and 2, including the site. Table 1 of the Codes lists 14 'R-Codes', ranging from R2 to R60. Column 3 of Table 1 of the Codes prescribes 'a minimum site area per dwelling ([square metres])' in terms of minimum area (referred to as 'Min') or both minimum area (referred to as 'Min') and average area (referred to as 'Av'). The only R-Code listed in Table 1 of the Codes in respect of which 'a density of one dwelling per 500 [square metres]' (cl 4.3 of the LGSP) is specified (in the form of an average site area of 500 square metres) is the R20 code. The implication that cl 4.3 of the LGSP imposes a residential density code of R20 is strengthened by the provision in cl 4.3A that the Council will support land within Precincts 1 and 2 being subdivided into lots 'with a min average of 500 [square metres]'.
Column 3 of Table 1 of the Codes prescribes a minimum site area per dwelling of 440 square metres in the R20 code. However, given that cl 4.3A of the LGSP states that the Council will support land within Precincts 1 and 2 being subdivided 'into lot sizes not less than 300 [square metres]' and that the purpose of subdivision within Precincts 1 and 2 is to facilitate residential development, by implication, cl 4.3 of the LGSP varies and, in particular, reduces the minimum site area that would otherwise be applicable under Table 1 of the Codes in the R20 code from 440 square metres to 300 square metres.
The applicants submitted that, on its proper interpretation, cl 4.3 of the LGSP does not impose a residential density coding of R20 for the purposes of Table 1 of the Codes, but rather itself prescribes density standards of a minimum site area of 300 square metres and an average site area of 500 square metres, relevantly replacing Table 1 of the Codes in the case of land within Precincts 1 and 2 of the LGSP. However, even putting aside the interpretation of cl 4.3 of the LGSP arrived at earlier, based on the terms of cl 5.7(c) and Table III of TPS 3 and the nature of density control under the Codes, it is unlikely to have been the intention of the LGSP to not apply a residential density code for the purposes of the Codes. This is because the imposition of an R-Code is the means by which the Codes regulates not only minimum and average site areas, but also, under various provisions and Table 1 of the Codes, other general site requirements in relation to minimum lot area for battleaxe allotments, minimum frontage, minimum open space and minimum set backs. While, in cl 4.9C, the LGSP imposes a minimum front setback development standard, it is silent in relation to other general site requirements imposed, through the application of the relevant R-Code, under Table 1 of the Codes. It is unlikely to have been the intention of the LGSP for development in the Structure Plan area to be unregulated in relation to the general site requirements set out in Table 1 of the Codes through the application of an R-Code.
As noted earlier, Grove 20 and the City contended that there is discretion under cl 6.1.3A3i of the Codes to reduce the average site area of 500 square metres and the minimum site area of 300 square metres by up to one third, because the proposed development comprises 28 'single bedroom dwellings'. In contrast, the applicants argued that this discretion is not available, because it is not relevantly a variation 'to the minimum and average site areas set out in table 1', within the meaning of cl 6.1.3A3 of the Codes. Rather, the applicants argued, the applicable minimum and average site areas that are sought to be varied are set out in cl 4.3 of the LGSP, which replaces Table 1 of the Codes.
However, as discussed earlier, on its proper interpretation, cl 4.3 of the LGSP implicitly imposes a residential density coding of R20 in relation to the site. Column 3 of Table 1 of the Codes prescribes minimum and average site areas for each RCode. Furthermore, although cl 4.3 of the LGSP varies the minimum site area of 440 square metres that would otherwise be applicable in the R20 code by reducing it to 300 square metres, the varied minimum site area is relevantly 'set out in table 1' of the Codes. This is because, although the LGSP varies the minimum site area that would otherwise be applicable in relation to the R20 code, it does not disclose any intention to exclude the availability of the discretion to reduce the minimum site area by up to one third for the purposes of a single bedroom dwelling. To the contrary, cl 4.13 of the LGSP provides that:
Unless stated otherwise in the plan, all development within the plan area shall comply with the adopted Residential Design Codes (2008) or any Act/order/document revoking or re-enacting the Residential Design Codes 2008.

Moreover, as the Explanatory Guidelines of the Codes indicates, the discretion in cl 6.1.3A3i of the Codes, to reduce the minimum and average site areas by up to one third for the purposes of a single bedroom dwelling, serves to promote a beneficial planning purpose, which it does not appear to be the intention of the LGSP to exclude in the Structure Plan area. The Explanatory Guidelines of the Codes states at page 40 as follows:
Single bedroom dwellings
This type of dwelling is designed to accommodate the one or two-person households that now make up over half of all households in Western Australia. Because dwellings of this nature result in a low population density per dwelling unit, they do not generate the same demands for car parking as two- or three-bedroom dwellings, and result in less building bulk, the codes allow the same concessions as for aged or dependent persons' dwellings. However, there are no constraints on the age of occupants and there is not requirement for special facilities.
Although the LGSP varies the minimum site area that would otherwise be required in the R20 code to 300 square metres, dwellings that meet this minimum site area may (subject to other development standards and planning controls) contain two or more bedrooms. Unless the discretion in cl 6.1.3A3i of the Codes were available to reduce the minimum site area by up to one third for the purposes of a single bedroom dwelling, there would be no incentive to achieve the beneficial planning purpose of dwellings being designed to accommodate 'the one or twoperson households that now make up over half of all households in Western Australia'. While, of course, one or twoperson households could occupy two or more bedrooms, the construction of a second or subsequent bedroom is likely to add to the cost of the development and consequently, the purchase price or rent for a dwelling. As noted, there does not appear to be any intention disclosed in the LGSP to exclude an incentive to construct single bedroom dwellings designed to accommodate one or twoperson households.
It follows that the Council (and the Tribunal on review) has discretion under cl 6.1.3A3i of the Codes to reduce the minimum site area of 300 square metres and the average site area of 500 square metres by up to one third in relation to the proposed development. As noted earlier, the areas occupied by and for the exclusive use or benefit of each of the proposed dwellings ranges from 203.7 square metres to 501.95 square metres, thus exceeding 200 square metres, which is the minimum site area of 300 square metres reduced by one third. The average site area of 500 square metres reduced by one third is 333.33 square metres. As noted earlier, if the common driveway and communal open space is included in the calculation of the average site area, then the average site area is 370.53 square metres, which exceeds the average site area reduced by one third. However, if the common driveway and communal open space is excluded from the calculation of the average site area, then the average site area is 237.1 square metres, which is less than the average site area reduced by one third.
The applicants submitted that common areas are excluded from the calculation of average site area and relied, in support of this submission, on the definitions of 'site' and 'survey strata lot' in Appendix 1 of the Codes. In contrast, Grove 20 and the City submitted that common areas are included in the calculation of average site area and relied, in support of this submission, on the nature of 'density' control and the Explanatory Guidelines of the Codes in relation to the interpretation of minimum site area.
The term 'site area' is defined in Appendix 1 of the Codes as follows:
The area of land required for the construction of a dwelling to satisfy the requirements of the codes.
As noted earlier, the Explanatory Guidelines of the Codes states at page 3 that:
A guide to the minimum site area required per dwelling unit is obtained by inversion of the R-Code density. For example R20, 20 dwellings per hectare, indicates a site area of 500 sq m per dwelling.
The 20 dwellings per hectare referred to in the example in the Explanatory Guidelines of the Codes that indicates an average 'site area of 500 sq m per dwelling' may well include common areas that are necessary, such as a communal driveway, or that are beneficial, such as communal open space. The definition of 'grouped dwelling' in Appendix 1 of the Codes includes 'a dwelling on a survey strata with common property' and the definition of 'lot' in Appendix 1 of the Codes is, for grouped dwellings, 'the parent lot, inclusive of common areas …'. As Mr Donaldson submitted:
Density properly is to be calculated on the whole of the land holding in respect of which the DA is made. This includes the area of common driveway and communal open space.
The following statement in relation to the interpretation of minimum site area at pages 3 - 4 of the Explanatory Guidelines of the Codes also supports the submission made by Grove 20 and the City:
The minimum site areas set out in column 3 of table 1 relate to different housing types as follows:
…
Grouped dwellings - the area of a defined site for each dwelling; that is, the area occupied by the dwelling itself, together with other areas set aside for the exclusive use of that dwelling, but excluding, any areas of common property (although these are included in the calculation of the average site area). This corresponds to the area defined in a strata title, although there is no necessity for a grouped dwelling to be strata-titled.
(Emphasis in bold added)
As noted earlier, the applicants relied on the definitions of 'site' and 'survey strata lot' in Appendix 1 of the Codes. These definitions are in the following terms:
Site
…
•In the case of a grouped dwelling, the area occupied by the dwelling together with any area allocated (whether by way of strata title or otherwise) for the exclusive use or benefit of that dwelling.
…
Survey strata lot
Land that is shown as an ordinary lot consisting of two or more lots on a survey strata plan and does not include a lot shown as common property prepared in accordance with section 3 of the Strata Titles Act 1985.
However, as the expression 'site area' is itself defined in terms that do not include the word 'site' within the definition, it is not appropriate to apply the defined meaning of 'site'. As is apparent from the nature of 'density' control under the Codes and the Explanatory Guidelines of the Codes, 'site area' includes common areas in the calculation of the average site area. Furthermore, the definition of 'survey strata lot' is inapplicable, because the housing density requirements in Pt 6 and Table 1 of the Codes do not relevantly refer to this term and, as stated in the Explanatory Guidelines in relation to the interpretation of minimum site area set out above, 'there is no necessity for a grouped dwelling to be strata-titled'. It is the case, as the applicants pointed out, that on 16 June 2011, the Commission granted survey strata subdivision approval of the site in a form that is consistent with the proposed development. However, the definition of 'survey strata lot' in Appendix 1 of the Codes does not properly bear on the calculation of the average site area under the Codes.
It follows that the density of the proposed development is capable of approval if discretion is exercised by the consent authority under cl 6.1.3A3i of the Codes to reduce the minimum site area to 203.7 square metres and to reduce the average site area to 370.53 square metres.

Conclusion

The preliminary issue is answered as follows:
The density of the proposed development, which involves a minimum site area of 203.7 square metres and an average site area of 370.53 square metres, is capable of approval if the consent authority exercises its discretion under cl 6.1.3A3i of the Codes.
As noted earlier, although the applicants originally raised a number of planning issues in relation to the proposed development, all of the issues other than density have been satisfactorily resolved through mediation and the submission of amended plans and clarifications. At the hearing of the preliminary issue, Mr James requested that, if the Tribunal determines that the density of the proposed development is capable of approval, then the matter should be adjourned to a directions hearing in order to enable the applicants to consider their position in relation to whether to contend that discretion should not be exercised by the consent authority under cl 6.1.3A3i of the Codes to reduce the minimum and average site areas. Accordingly, the matter is adjourned to a directions hearing.

Orders

The Tribunal makes the following orders:
1.The preliminary issue is answered as follows:
The density of the proposed development, which involves a minimum site area of 203.7 square metres and an average site area of 370.53 square metres, is capable of approval if the consent authority exercises its discretion under cl 6.1.3A3i of the Residential Design Codes of Western Australia (2010).
2.The proceeding is adjourned to a directions hearing at 11.00 am on 11 November 2011 in order to enable the applicants to consider their position in light of the determination of the preliminary issue.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT