Curtis and Western Australian Planning Commission
[2008] WASAT 147
•27 JUNE 2008
CURTIS and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 147
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 147 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:39/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 27/06/08 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | IAN STANLEY CURTIS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town Planning Application for subdivision for rural/residential lots Battleaxe lots Orderly and proper planning Nutrients entering the surface and/or sub-surface water systems Alternative treatment units Environmental and/or health risks Water prone areas Reticulated water and sewerage services Separation between the natural ground surface and the highest known groundwater level Need for further information Undesirable precedent |
Legislation: | Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 241, s 251(1) Shire of Chittering Town Planning Scheme No 6, cl 1.6, cl 2.2, cl 2.3 cl 4.2.6, cl 5.8, cl 6.3, Pt 6 |
Case References: | Aspen Pty Ltd v State Planning Commission (unreported, Town Planning Appeals Tribunal (WA), Appeal No 13 of 1988, 21 October 1988) |
Orders | The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CURTIS and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 147 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 27 JUNE 2008 FILE NO/S : DR 39 of 2008 BETWEEN : IAN STANLEY CURTIS
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town Planning - Application for subdivision for rural/residential lots - Battleaxe lots - Orderly and proper planning - Nutrients entering the surface and/or sub-surface water systems - Alternative treatment units - Environmental and/or health risks - Water prone areas - Reticulated water and sewerage services - Separation between the natural ground surface and the highest known groundwater level - Need for further information - Undesirable precedent
Legislation:
Metropolitan Region Scheme
(Page 2)
Planning and Development Act 2005 (WA), s 241, s 251(1)
Shire of Chittering Town Planning Scheme No 6, cl 1.6, cl 2.2, cl 2.3 cl 4.2.6, cl 5.8, cl 6.3, Pt 6
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr Denis Millan
Solicitors:
Applicant : Self-represented
Respondent : Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported, Town Planning Appeals Tribunal (WA), Appeal No 13 of 1988, 21 October 1988)
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Western Australian Planning Commission to refuse the subdivision of a 6 hectare "rural/residential" zoned lot into three lots of two hectares each at 21 Peters Road, Muchea. Two of the proposed lots were in "battleaxe" form.
2 The State Administrative Tribunal examined the background to the proposal, the respective position of the parties, the relevant provisions of statutory and policy documents and matters of orderly and proper planning, public health and precedent.
3 It was determined that as the subject land was within the Ellen Brook Catchment and known to be waterlogged in winter that it would be necessary for the applicant to prove that, for an unsewered subdivision, there was a minimum clearance of 500 millimetres between the natural ground level and, desirably, the highest known groundwater level.
4 Until that information was provided it was not possible to determine whether the proposed subdivision would be in the interests of orderly and proper planning and/or whether there would be an environmental or health risk.
5 The State Administrative Tribunal also determined that to approve the subdivision without the required technical information would create an undesirable precedent that could lead to other similar and premature applications from within the Peters Road Precinct.
6 The application for review was dismissed.
Introduction
7 The application for review, dated 31 January 2008, was lodged by Mr Ian Stanley Curtis (applicant) under the provisions of s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) against a decision of the Western Australian Planning Commission (respondent or WAPC) on 7 January 2008 to refuse a three lot subdivision at No 21 (Lot 15) Peters Road, Muchea in the Shire of Chittering.
8 The reasons for refusal were:
(Page 4)
- "1. The proposed subdivision does not comply with the Local Government Local Planning Strategy by reason that further subdivision is restricted until such time as the provision of services (water supply and sewerage scheme) are installed.
2. The proposed subdivision does not comply with the Local Government Scheme provisions for the Peters Road Subdivision and Muchea Village by reason that the subject site is such that subdivision may increase the amount of nutrients entering the surface and/or subsurface water systems and further subdivision is restricted.
3. The land is unsuitable for closer development until such time as it is served by a comprehensive drainage or deep sewerage system.
4. The subject land is located within the Ellen Brook Catchment where the Commission is opposed to further subdivision and subsequent development of rural land that could lead to pollution of water supplies.
5. Approval of the subdivision would set an undesirable precedent for the further subdivision of surrounding lots which could have a cumulative impact on the surface and/or sub-surface water systems in Muchea Townsite."
Subject land
9 The subject land can be described as No 21 (Lot 15) Peters Road, Muchea on Certificate of Title Volume 1904, Folio 851 and on Diagram 46012. It has an area of 6.0079 hectares.
10 The site has a battleaxe shape which is oriented east-west and there is an existing brick residence, shed and water tank positioned towards Peters Road. The western frontage to Peters Road is some 69.8 metres with the length of the southern boundary some 519 metres. The rear dimension to the adjacent Reserve 45225 is some 174 metres long.
11 The subject land is relatively level and falls within an essentially rural locality. It is immediately south of and adjacent to a "bed and breakfast" facility.
(Page 5)
Legislative and policy framework
12 The subject land is zoned "rural" in the Metropolitan Region Scheme (MRS) and "rural/residential" in the Shire of Chittering Town Planning Scheme No 6 (Scheme or TPS 6). It abuts Ellen Brook (a "parks and recreation" reserve) along its eastern boundary.
13 Of relevance in this matter are:
(a) Shire of Chittering Local Planning Strategy (LPS);
(b) Shire of Chittering Local Planning Policy No 2 - Muchea Village (LPP 2);
(c) Western Australian Planning Commission - Statement of Planning Policy No 2.5 (SPP 2.5);
(d) Western Australian Planning Commission - Development Control Policy 3.4 (Subdivision of Rural Land) (DC 3.4);
(e) Western Australian Planning Commission - Development Control Policy 3.7 (Fire Planning) (DC 3.7); and
(f) Draft Country Sewerage Policy (DCSP).
Respondent's position
14 The position of the respondent is outlined in a "Statement of Issues, Facts and Contentions" dated 29 February 2008. The respondent contends:
(a) TPS 6
(i) The proposal does not comply with cl 5.8.1 as there is no development plan for the subdivision.
(ii) The proposal does not comply with cl 6.3.1 as it is inconsistent with the Scheme.
(iii) The proposal does not comply with cl 6.3.2 as it proposes lots which, when developed may:
• increase the amount of nutrients entering the surface and/or sub-surface water systems; and
- • cause detriment to the environment by adversely impacting on groundwater in the area.
- (b) LPS
(i) The proposal conflicts with cl 6.4.2 being:
• the prohibition of non-agricultural development which may contribute to pollution of the surface water or subsurface water regimes; and
• limiting subdivision and development in the Muchea Townsite to retain low occupation density.
(ii) The proposal conflicts with cl 9.2 being:
• the need to restrict further subdivision until the provision of essential services such as water and sewerage. There are no plans to provide such services in the short to medium term; and
• it conflicts with the strategies and actions set out for Muchea in that it is inconsistent with the emphasis on low density development to arrest nutrient export into the Ellen Brook Catchment.
(i) The proposal conflicts with the stated objective for the Peters Road Precinct which is to retain the present subdivision pattern by not supporting additional subdivision, as it would result in a change in the subdivision pattern.
(d) SPP 2.5
(i) As the proposal may result in contamination of the water supply it conflicts with objective 4, which is to discourage development and
- subdivision which may result in environmental degradation.
- (ii) If the proposal was approved, it would create a precedent for the subdivision of the surrounding lots, and the cumulative impact of the increased occupation density could be detrimental to the water supply of the Muchea Townsite.
(iii) The proposed subdivision does not comply with cl 5.3.2 as there is no reticulated water supply.
- (e) DC 3.4
(i) The proposal does not comply to cl 1 because it does not accord with TPS 6 or the LPS.
(ii) Although the proposal accords with the lot size requirements of cl 3.2, it does not accord with the policy in that there is no connection to a reticulated water supply where it would be reasonable and practical, given the limited potential for the construction of dams or the use of bores.
(iii) The proposal does not comply with cl 6 because it does not include the necessary information requirements on services and adverse environmental impacts.
(f) DCSP
(i) The proposal does not comply with cl 4 as there is no reticulated sewerage.
(ii) The proposed subdivision does not meet the criteria for a discretionary exemption under cl 5.3 because there is opportunity within the area for further subdivision without sewerage.
(iii) The issue must be considered in the wider context of the objectives of the policy which are to consider the possible impacts on public health and the State's water resources if further subdivision were to occur.
- (iv) Under cl 6, where an exemption is sought, the applicant must provide information to demonstrate that the proposal meets the minimum requirements. The applicant has refused to provide a report containing such information.
(v) The risk of on-site effluent disposal is exacerbated by the fact that the subject land is below the 65 metre contour. This is a limit set to prevent contamination of the water supply.
- (g) DC 3.7
(i) The proposed subdivision does not comply with cl 4.5, which states that more intensive land use and development should only take place in areas where the performance criteria and acceptable solutions set out in the document "Planning for Bush Fire Protection" can be achieved. Clause 3.3 of that document requires a battleaxe access leg to be a minimum of 6 metres wide, whereas the proposed lots 2 and 3 have adjoining battleaxe legs of 4 metres wide only.
(h) Precedent
(i) Approval of the proposed subdivision could set a precedent for the further subdivision of surrounding lots in the Muchea Townsite which would have a detrimental cumulative impact on the water supply to the townsite.
15 The position of the applicant is outlined in a response to the respondent's "Statement of Issues, Facts and Contentions". The response was received by the State Administrative Tribunal (Tribunal) on 17 March 2008 and broadly argues:
(a) Both TPS 6 and LPP 2 are "objective" oriented documents;
(b) The existing Peters Road Precinct does not have reticulated water. The landholders, in the main, rely on large storage tanks filled by rainwater run-off for general household use, with bore water servicing water closets.
- (c) Each proposed dwelling would have its own water storage tank, with capacity in excess of 75,000 litres. The Fire and Emergency Services Authority of Western Australia (FESA) water requirement for fire service units would be preserved.
(d) Reticulated sewerage in a small subdivision like the Peters Road precinct is not an option because the cost to landowners and local government would be prohibitive.
(e) The respondent constantly refers to the proposed subdivision and effluent disposal affecting groundwater. However, the installation of alternative treatment units within the building envelope would prevent nutrients leaching into the surface and sub-surface soils and stop the groundwater from being polluted.
(f) The proposed building envelopes would be 150 metres to 160 metres from Ellen Brook which exceeds a suggested 100 metres re-afforestation buffer for nutrient stripping purposes.
(g) The entire Peters Road "rural/residential" precinct is below the 65 metre contour and subdivisions have been approved in the past (Ref 88401, 81509 and 82882).
(h) The Shire of Chittering (Shire) has advised that there are no perceived social or environmental implications resulting from the proposed subdivision.
(i) The argument of limiting subdivision and development in the Muchea Townsite seems to be in complete contradiction to the Shire's support for the subdivision of Lot 1924 Payne Street, Muchea, where it was argued that the subdivision would increase population and generate additional facilities and infrastructure.
(j) The proposed subdivision meets the guidelines for the rural/residential zone (such as a 2,000 square metre minimum lot size).
(Page 10)
- (k) The mention of bush fire risk is applicable to the whole of Western Australia. However, the Peters Road Precinct is mainly cleared farmland and is more at risk of grass fires than bush fires which need high density fuel.
(l) The proposed two rear lots would have a shared driveway of 8 metres which would allow ease of evacuation. It is totally unreasonable to require each access leg to be 6 metres wide.
(m) A precedent has been set in the following ways:
• rezoning of the subject land and nearby properties within the Peters Road Precinct from rural to rural/residential;
• in 2006 the Shire approved a "bed and breakfast" development on the adjoining property to the north at 15 Peters Road. The development has four bathrooms and five water closets with the use of an ATU;
• the residence at 95 Brand Highway (adjacent to and north of 15 Peters Road) is at least 30 years old and has not suffered water inundation or a malfunction of the septic system due to water inundation; and
• the Shire is approving estates in the hills east of Great Northern Highway where there is no access to groundwater and, when required, water has to be carted in by truck.
(n) The respondent argues that the applicant has refused to provide a report with relevant information. At no stage has such a request been received.
Planning issues
16 The principal planning issues are:
(a) Is the proposed subdivision in accordance with orderly and proper planning?
(Page 11)
- (b) Would the proposed subdivision be likely to impose an environmental and/or health risk?
(c) Would the proposed subdivision, if approved, be likely to create a precedent for similar applications in the locality?
Assessment of proposal
Background
17 The applicant purchased the subject land in 2003 and an application for subdivision was lodged on 17 September 2007 with the WAPC on his behalf by the firm of Wilson and MacKay, licensed surveyors.
18 The land was rezoned from "Rural 2 – General Farming" to "Rural-Residential" in 2004.
19 On 20 September 2007 the WAPC forwarded the proposal to a number of government agencies and the Shire for comment. These comments can be broadly summarised as follows:
(a) Western Power
Requested the provisions of underground power if the subdivision was to proceed.
(b) Water Corporation
Advised that they had no objection to the subdivision proceeding but pointed out that:
• the proposed subdivision is remote from a reticulated water supply and sewerage service; and
• comments should be obtained from the local authority and the Department of Health (DoH) regarding on-site effluent disposal.
Advised that the proposal had no impact on the Department or its clients.
(d) Shire of Chittering
- Recommended refusal on the following grounds:
• not consistent with LPP 2;
• could affect the amenity of the area, which is to create a rural living;
• a battleaxe lot is not preferred due to fire safety and emergency access;
• further interruption of the land may adversely affect the groundwater;
• may result in a proliferation of other smaller subdivisions which cumulatively may affect the sustainability of the Muchea Townsite.
- (e) Department of Health (DoH)
Advise in the following terms:
• the subject land is located within an area known to be waterlogged in winter;
• the DCSP requires a site to have a minimum clearance of 500 millimetres between the natural ground surface and the winter water table for unsewered subdivisions;
• this requirement may be achievable on the subject land given the large lot sizes proposed but would need to be demonstrated via an investigation of the winter water table in August/September;
• the site investigation and report can be undertaken by the Shire's Environmental Health Officer or a suitably qualified consultant; and
• until such time as the report is available for consideration, the DoH does not support the proposal.
(Page 13)
21 On 31 January 2008 the application for review was lodged with the Tribunal.
Legislative and policy requirements
Shire of Chittering Town Planing Scheme No 6
22 Under cl 1.6 the aims of the Scheme include:
"…
d. To maintain the rural lifestyle as part of the community structure and well being;
…
f. To provide for rural residential development in controlled settlement areas;
g. To protect and improve areas of remnant vegetation and, waterways from further degradation;
…
o. To provide for essential infrastructure consistent with and as needed to support the other aims of the Scheme."
23 The preparation of local planning policies is covered under cl 2.2:
"The local government may prepare a Local Planning Policy in respect of any matter related to the planning and development of the Scheme Area so as to apply -
(a) generally or for a particular class or classes of matters;
…"
24 The relationship of local planning policies to the Scheme is covered under cl 2.3:
"If a provision of a Local Planning Policy is inconsistent with the Scheme, the Scheme prevails."
25 The objectives of the rural/residential zone are covered under cl 4.2.6:
"Rural Residential Zone
(Page 14)
- 4.2.6.1 Objectives
To designate areas where rural residential developments can be accommodated without detriment to the environment or the rural character of the area.
To meet the demand for a rural lifestyle on small lots, generally in excess of 5,000 [square metres].
To maintain and enhance the rural character and amenity of the locality."
"Subdivision and development of rural land for rural residential, rural retreat or small rural holding purposes will require an amendment to the town planning scheme.
…
5.8.1 Requirements for a Development Plan
Subdivision shall generally be in accordance with a Development Plan or any subsequent variation approved by the Council.
An application for subdivision of land in these zones is to be accompanied by a Development Plan which indicates and addresses the following but is not limited to:
…
(g) any facilities which the purchasers of the lots will be required to provide (eg their own potable water supply, liquid or solid waste disposal, etc);
(h) areas where conventional septic tanks may not be suitable;
…
(k) location of watercourses, drainage lines and areas of inundation and the distance of any infrastructure from these.
(Page 15)
- 5.8.2 Building Envelopes/Setbacks
Development will only be permitted in the areas identified as building envelopes …
Clearing of remnant vegetation for the construction of buildings within the defined envelope shall not exceed 2,000 [square metres] without prior approval of Council.
…
5.8.5 Non-Potable Water Supply
All buildings intended for residential use must include provision for the storage of water in tanks of not less than 120,000 litres capacity unless satisfactory arrangements have been made for connection to a reticulated water supply provided by a licensed water provider. Council may permit the reduction in the size of storage tanks if the quality of water on-site meets or is treated to potable water standards.
…
5.8.9 Fire Control
…
A Bush Fire Management Plan shall be prepared by the developer/subdivider to the satisfaction of Council and Fire Emergency Services Authority …
5.8.10 Effluent Disposal
Appropriate disposal systems are required to be installed to the satisfaction of the Council and the Health Department.
…"
27 Under Pt 6 there is provision for "Special Control Areas" (SCA) and these include the "Water Prone" SCA. This is addressed in cl 6.3:
"6.3.1 Land subject to inundation or flooding are delineated on the Scheme Map. Planning approval is required for any development within the Special Control Area.
(Page 16)
- 6.3.2 Purpose
a. To manage development in areas where there is a high risk of inundation so as to protect people and property from undue damage and where there is a potential risk to human health.
b. To preclude development and the use of land which may increase the amount of nutrients from entering the surface and/or sub-surface water systems.
…
6.3.3 Planning Requirements
The Local Government will impose conditions on any Planning Approval relating to …
…
(b) the type of effluent disposal system used in this area shall be high performance with bacterial and nutrient stripping capabilities …"
28 The LPS is a Strategy prepared for the years 2001 - 2015 and was endorsed by the WAPC on 29 June 2004. It should be read in conjunction with TPS 6.
29 One of the objectives of the Strategy is to:
"Retain Muchea as a rural village with a mixture of compatible land uses and activities, to retain the unique character of the townsite."
30 The principal issues are outlined in cl 5.3 and include:
"Nutrient export in the Ellen Brook Catchment is a major contributor to algae blooms in the Swan River from excessive phosphate and nitrate loadings; …"
31 The Ellen Brook Palusplain (EBP), located west of the Gingin Fault, is described under cl 6.4.1 as being one of the most environmentally
(Page 17)
- sensitive areas in the Shire. Muchea Townsite is located in the south-west corner of the EBP.
32 The planning aims for the EBP include:
"6.4.2 Aims
…
To prohibit any non-agricultural development which may contribute to pollution of the surface water or sub-surface water regimes.
…
To limit subdivision and development in the Muchea Townsite to retain low occupation density.
…"
"Potable Scheme Water is only available to the Bindoon Town and adjunct Country Club Rural Residential Estate. All other rural residential estates rely on self-sustaining roof catchment or shallow bores. Residents of Muchea Townsite, similarly, are reliant on water from private bores."
…
There is no deep sewerage scheme in the Shire."
34 The aim of the policy on scheme water is:
"7.6.3 Aims
To pursue the provision of a scheme water supply to all residential precincts to augment supply from roof catchments."
"8.2.1 Townsite and Peters Road
- The townsite area is confined by the existing townsite boundaries on the Brand Highway and includes the Peters Road subdivision.
- 8.2.2 Aims
To retain the rural living character of the town;
To restrict subdivision and development to its current form until reticulated water and deep sewerage systems are provided;
…"
"9.2 Muchea
Muchea has strict limitations to any additional subdivision and development due to the absence of essential services.
Strategies and Actions
…
Prepare and implement a detached Development Plan and Local Planning Strategy for the townsite including Peters Road with the intent of retaining the existing rural village character.
To restrict further subdivision until such time as the provisions of services (water supply and sewerage scheme) are installed."
"10.2 Water Prone Areas
This control refers specifically to the Ellen Brook palusplain where seasonal flooding or waterlogging occurs and incidentally to the minor flood plains of the Brookman River System.
The intent is to protect people from the risk to health because of flooding, high water tables and their association with septic disposal systems and to manage the susceptible areas from undue
- discharge of excess nutrients into the drainage systems."
38 The overall intent of the Strategy of the so-called Muchea Village (which includes the Peters Road Precinct) appears to be to try to retain its unique village character and to recognise the environmental sensitivity of the EBP. This intent is complemented by a limitation on any additional subdivision until such time as water and sewerage services are installed and available.
Local Planning Policy No 2 – Muchea Village
39 This policy, dated January 2005, divides the Muchea Village Area into seven precincts. The Peters Road area is Precinct 6.
40 On health issues the policy advises:
(a) Most residences in Muchea depend upon shallow bores, which are often located close to the septic system disposal areas for their domestic water needs.
(b) These circumstances allow for contaminants and pathogens to transfer from the leach drains into the drinking water supply with consequential serious health problems.
(c) The problem is exacerbated by the high water table during winter, which can flood the septic systems bringing untreated fluids to the surface water areas.
(d) ATU's are now compulsory for all new developments.
(e) The higher the density the greater the health risk. This led to an embargo in the late 1990's on further subdivision and development until scheme water and reticulated sewerage was provided.
(f) The policy will support limited subdivision and development where adequate provisions are made to ensure safety for future residents from further health risk.
41 The question of water supply is addressed under cl 3.3.2:
(Page 20)
- "The plentiful supply of groundwater from shallow domestic bores is the fresh water source for nearly all developments.
There are no plans to provide a reticulated water scheme in the immediate future."
42 The question of sewerage is addressed under cl 3.3.3:
"There is no deep sewerage reticulation system in Muchea.
…
It is highly unlikely that a deep sewerage system will be installed in the coming decade without substantial financial assistance from the government.
…"
43 Clause 4.8 addresses the Peters Road Precinct 6. It advises:
"(a) There are 22 lots ranging in size from under 2 hectares to over 11 hectares.
(b) The close proximity of Ellen Brook is of concern when considering surface and sub-surface discharge of water into the brook and the carriage of excessive nutrients and organic matter.
(c) Two of the lots have been subdivided into battleaxe lots of about two hectares.
(d) The overall intent is to retain the subdivision pattern in its present form.
(e) To encourage the re-afforestation of a 100 metre buffer strip from Ellen Brook for nutrient stripping purposes."
44 From the foregoing there is a recognition of the health issues in Muchea; particularly in close proximity to Ellen Brook. There is also an overall resistance to further subdivision but support for limited subdivision if health risks can be avoided.
Statement of Planning Policy No 2.5
45 This policy is used in conjunction with DC 3.4 as a basis for determining applications for the subdivision of rural land by the WAPC.
(Page 21)
46 Although the policy seeks to minimise the ad hoc fragmentation of rural land it does provide for rural/residential lots that are appropriately zoned under a town planning scheme. It suggests certain provisions which include under cl 5.3.1(ii):
"(a) the requirement for a subdivisional guide plan; …"
47 Under cl 5.3.2 it lists further provisions that should apply in the town planning scheme:
"(a) the lot size should range from 1 ha to 4 ha depending on local conditions; and
(b) mandatory provision of a reticulated potable water supply."
Development Control Policy 3.4 (Subdivision of Rural Land)
48 The policy advises that the subdivision of rural land should be properly planned through the preparation of local strategies and provided for in a local planning scheme prior to subdivision.
49 On the matter of water supply the policy advises:
"When approving lots for rural residential development
(1 – 4 ha) the WAPC will generally require connection to a reticulated water supply where it is practical and reasonable to do so. Where it is not practical or reasonable for lots to connect to a reticulated water supply the WAPC may consider an alternative water supply."
50 The need for additional information to be provided by the subdivider is outlined in cl 6 and Appendix 2. These requirements include:
"…
(c) Whether each lot has a sustainable water supply for domestic fire management and agricultural purposes …
…
(e) Whether a proposal complies with the performance criteria and standards specified in the WAPC's DC Policy 3.7 Fire Planning Policy, including appropriate access and egress in case of emergency.
(Page 22)
- …"
51 It is clear that the policy does allow for the creation of rural/residential lots without a connection to a reticulated water supply where it is not practical to do so.
Development Control Policy 3.7 (Fire Planning)
52 This policy is a response to the increase in rural subdivisions in areas subject to extreme, high and medium bush fire hazard. The subject land appears to fall into the "medium" category.
53 The policy is to be read in conjunction with the performance criteria and acceptable solutions contained in the 2001 document "Planning for Bush Fire Protection". It contains "performance criteria" and "acceptable solutions".
54 The 2001 document advises that in bush fire prone areas battleaxe lots should be generally avoided but, where they are used they should comply with minimum standards for driveways. These standards include a minimum access leg width of 6 metres and a minimum trafficable surface of 4 metres.
Draft Country Sewerage Policy
55 The DCSP is a government endorsed policy that sets out the wastewater disposal requirements for new subdivisions and developments to proceed. The DoH has primary responsibility for administering the policy.
56 Under the policy, reticulated sewerage is required for all subdivision or development, except where certain discretionary provisions may apply.
57 The policy advises:
"While there have been improvements in the technology associated with on-site wastewater treatment, reticulated sewerage remains the most reliable, efficiently managed and environmentally acceptable means of wastewater disposal."
58 Under the discretionary provisions the policy advises:
"5.2 Large Lots
Proposals for large lot subdivision or density development can be considered if they do not involve the creation of lots of less than 2,000 [square metres], or density development at a density
- greater than R5, provided the statutory authority, after considering the advice of statutory authorities is satisfied that there is no opportunity within the area covered by the proposal for further subdivision without sewerage."
59 The matter of on-site wastewater disposal requirements is addressed in s 6:
"Statutory authorities considering proposals under the discretionary provisions of Section 5, after considering the advice of consultative authorities, must be satisfied the minimum requirements for onsite wastewater disposal as prescribed in Appendix 1 are met prior to issuing approval.
Where permission for a proposal is being sought from the statutory authority under the discretionary provisions of Section 5, it is the applicant's responsibility to provide the required information to demonstrate the minimum site requirements as prescribed in Appendix 1, can be met, and the intended methods of wastewater disposal will satisfy any special requirements of Appendix 1."
60 Under Appendix 1 (On-site Wastewater Disposal Requirements) it states under "Minimum Site Requirements":
"• Irrespective of the type of on-site wastewater disposal system proposed, there should be at least 0.5 metres separation between the natural ground surface and the highest known groundwater level. Correctly engineered drainage solutions may be used to increase the clearance between the natural surface and the highest known groundwater level, subject to such drainage works being environmentally acceptable.
…"
61 Again, under Appendix 1 (Minimum Wastewater System Installation Requirements) it states:
"• The wastewater disposal site should not be subject to inundation or flooding at a probability greater than 10 years.
(Page 24)
- • No wastewater system shall be constructed so that effluent or liquid wastes will be discharged into the ground at a distance less than 30 metres from any well, stream or private water supplies intended for consumption by humans.
…"
62 There is no information before the Tribunal on the natural ground surface level of the whole of the subject land, the highest known groundwater level or the probability of flooding.
The matter of orderly and proper planning
63 This matter is best addressed by assessing the proposal against the relevant provisions of both the statutory and policy documents.
64 However, in making its decision under review although the Tribunal must have regard to certain matters as outlined in s 241 of the PD Act, and any other State government or local planning policy, it is not constrained by them.
The matter of public health
65 In the witness statement dated 8 April 2008 of Ms Diane Daze, a qualified planner in the Department of Planning and Infrastructure (DPI) she advises:
(a) The DCSP requires a minimum distance of 0.5 metres between the natural ground surface and the highest known groundwater level.
(b) In a record of discussion on 11 December 2007 between DPI and DoH the latter advised that a 65 metre contour level and above was recommended for Muchea but that the subdivision was at the 46 metre contour level. Accordingly, the 0.5 metre separation distance required in (a) above may not be achievable.
(c) It is the applicant's responsibility to provide the required information to demonstrate compliance with (a) above.
(d) A report dated 4 February 2008, from G W Farrell of Agro-Nutritional Research Laboratory shows details of nutrient levels in soil samples from the subject land and from nearby
- No 95 (Lot 105) Brand Highway. The circumstances at the latter site are significantly different to those proposed on the subject land.
- (e) The report does not provide evidence of nutrient levels in winter, was not presented to DoH for analysis and no witness statement has been provided by the research laboratory.
66 In the applicant's response of 17 April 2008 to the witness statement of Ms Daze he advises:
(a) As the application for subdivision was made on 17 September 2007, and the refusal made on 7 January 2008, it has not been possible to produce a report on on-site winter conditions.
(b) The analysis undertaken was of water samples from an existing bore on the subject land and from No 95 (Lot 105) Brand Highway. Both lots have existing septic systems.
67 In the view of the Tribunal the requirements of the DoH, as outlined in [19(e)] above, have not been addressed by the applicant.
The matter of precedent
68 In his submissions the applicant refers to previous nearby subdivision approvals in Peters Road as a basis for establishing precedent.
69 However, in her witness statement Ms Daze advises:
(a) The applicant's reference to WAPC subdivision applications 88401, 81509 and 82882 were made prior to 2000 and predate TPS 6. Also, they were for larger lot sizes (2.16 hectares to 6.59 hectares).
(b) The reference to Lot 1924 Payne Street, Muchea was for a 54 lot subdivision in the Townsite with lot sizes varying from 4000 square metres to 4 hectares and all of the land was above the 65 metre contour.
(c) The respondent refused subdivisions WAPC Ref 100956 (1996) and WAPC Ref 95446 (1994) in the Peters Road Precinct under the former Town Planning Scheme No 5.
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- (d) The respondent has not approved any applications for subdivision under the current planning framework."
70 The matter of precedent was addressed in Aspen Pty Ltd v State Planning Commission (unreported, Town Planning Appeals Tribunal (WA), Appeal No 13 of 1988, 21 October 1988) (Aspen) wherein it was explained that precedent is not to be treated as a "stand alone" argument and is but one factor to be taken into account in reaching a decision.
71 The approach adopted in Aspen will be continued in this review.
Conclusions
72 The application for review was lodged against a decision of the respondent to refuse the subdivision of the subject land of some 6 hectares into three lots (two of which are in battleaxe form) of some two hectares each. The land is zoned "rural/residential" in the Scheme.
73 The reasons for refusal were broadly that the land is unsuitable for closer development until such time as it is served by a comprehensive drainage or deep sewerage system and that the subdivision did not comply with the relevant provisions of the Scheme, the LPS and the LPP 2 due principally to the absence of services and the risk of pollution to surface and sub-surface water systems in the Muchea Townsite. Also, there was the belief that an approval would set an undesirable precedent.
74 In undertaking this review the Tribunal has examined the background to the proposal, the respective position of the parties, the relevant provisions of the statutory and policy documents and matters of orderly and proper planning, public health and precedent.
75 The position taken by the applicant is that as the subject land is zoned "rural/residential" that the subdivision should be allowed to proceed, and that matters of water supply and on-site effluent disposal can easily be accommodated by way of a water storage tank and an ATU for wastewater.
76 The applicant also argues that a new residence on each of the two battleaxe lots could be set well back from the Ellen Brook reserve and could gain access to Peters Road via two adjacent access legs of 4 metres each. Also, that precedent has been set by way of nearby subdivisions.
77 The position of the respondent is that there is no development plan to guide subdivision and development, that there is a risk of nutrients entering the surface and sub-surface water systems and that there is a need to restrict
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- subdivision until such time as water and sewerage services are available. Also, that the proposal would conflict with an objective of the LPP 2 which is to retain the present subdivisional pattern in the Peters Road Precinct.
78 Of prime importance to the respondent was that the applicant had not provided sufficient information to support the proposal; particularly in respect of proving a minimum clearance of 500 millimetres between the natural ground surface and the highest known groundwater level in accordance with the requirements of the DCSP. It was argued that these requirements would be difficult to achieve as the subject land is below the 65 metre contour level and is in an area known to be waterlogged in winter. A similar view was expressed in the Statement of Evidence, dated 8 April 2008, of Mr Allen Loke Tan, a Scientific Officer in the DoH.
79 The respondent also argued that the battleaxe access legs would need to be widened to 6 metres each if the subdivision was to proceed but that an approval would set an undesirable precedent.
80 In an examination of TPS 6 it is clear that it provides for the creation of "rural/residential" zones, with lots generally in excess of 5,000 square metres, and that there is a requirement for a development plan; presumably to guide the subdivision process and to highlight such things as on-site locations where conventional septic tanks may not be suitable.
81 The Scheme also addresses matters of building envelopes, water supply, fire control and effluent disposal as well as "Water Prone" Special Control Areas (into which the subject land falls) in order to manage development in areas where there is a high risk of inundation and nutrient export.
82 An examination of the LPS, which is a complementary document to the Scheme, shows that its prime intent is to retain the unique rural character of the Muchea Townsite (which includes the Peters Road Precinct) and to recognise the environmental sensitivity of the EBP. This intent is complemented by a limitation on any additional subdivision until such time as water and sewerage services are installed and available.
83 The LPP 2 specifically addresses the Muchea Village and details a range of health issues resulting from a high water table; particularly in winter with the risk of untreated fluids from septic systems contaminating water supplies and surface water areas.
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84 However, although the policy talks of an embargo on subdivisions until scheme water and reticulated sewerage are available, it does support limited subdivision and development where adequate provisions are made to ensure the safety of future residents from health risks. Presumably this is recognition that neither a reticulated water supply or deep sewerage system is contemplated in the foreseeable future.
85 An examination of SPP 2.5 does provide for the creation of "rural/residential" lots but contemplates subdivision within a "subdivisional guide plan". It also talks of the mandatory provision of a reticulated water supply.
86 However, DC 3.4 addresses the provision of water supply by generally requiring its connection to rural/residential lots but:
"Where it is not practical or reasonable for lots to connect to a reticulated water supply the WAPC may consider an alternative water supply."
87 Policy DC 3.4 also flags the need for a subdivider to provide additional relevant information to support a subdivision proposal.
88 Of importance in this matter is the DCSP which includes discretionary provisions to allow the creation of large lots (2,000 square metres or greater) providing there is no opportunity for further subdivision without sewerage and providing the minimum requirements for on-site wastewater disposal can be met.
89 These minimum requirements are set down in Appendix 1 of DCSP and advise:
"Irrespective of the type of wastewater disposal system proposed, there should be at least 0.5 metres separation between the natural ground surface and the highest known groundwater level …"
90 The difficulty the Tribunal has in addressing this issue is that it has no quantifiable information on groundwater levels, particularly in winter. It is however, understood that the natural ground surface is at RL 46.0 AHD, which is well below the 65 metre contour level recommended for subdivision.
91 In the examination of the various statutory and policy documents relevant to this case, what is not clear to the Tribunal is that if there was a wish by the planning authorities to try and retain the unique character of the
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- Muchea Village, and to retain the existing pattern of subdivision, just why was the Peters Road Precinct rezoned to "rural/residential"?
92 The decision to rezone is even more difficult to understand in the knowledge that the Precinct is in an area subject to flooding, is below the 65 metre contour level and there is the risk of pollution of the surface and sub-surface water systems. Also, there is no prospect of a reticulated water or sewerage service in the foreseeable future.
93 In the view of the Tribunal it is axiomatic that once rural land is rezoned to "rural/residential" that there would be an expectation by landowners that the public authorities would be supportive of subdivision, subject to owners meeting minimum lot size and other criteria.
94 Just how this rezoning was allowed to proceed through the system, and then to deny an owner the right to subdivide for reasons that should have been sorted out prior to rezoning, is bordering on the incomprehensible.
95 However, putting that argument to one side, the simple fact of the matter is that the subject land is located in an area known to be waterlogged in winter, and it would be necessary for the applicant to prove that for an unsewered subdivision there is a minimum clearance of 500 millimetres between the natural ground level and the highest known groundwater level. Such information could then guide the decision making process.
96 Until this information is provided it is not possible to determine whether the proposed subdivision would be in the interests of orderly and proper planning, and/or whether there would be an environmental or health risk.
97 What is clear to the Tribunal though is that to approve the subdivision without this technical information, to be assessed by the DoH in particular, would create an undesirable precedent that could lead to other similar and premature applications from within the Peters Road Precinct.
Orders
For the foregoing reasons the Tribunal orders that:
The application for review is dismissed.
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I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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