DALCORP HOLDINGS PTY LTD and TOWN OF VICTORIA PARK - [2011] WASAT 18

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: DALCORP HOLDINGS PTY LTD and TOWN OF VICTORIA PARK [2011] WASAT 18

MEMBER: MR J JORDAN (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 31 JANUARY 2011

FILE NO/S: DR 172 of 2010

BETWEEN: DALCORP HOLDINGS PTY LTD
ANNA MARIA COCI
Applicants
AND
TOWN OF VICTORIA PARK
Respondent

Catchwords:

Town planning - Development - Approval of three single bedroom multiple dwellings, four two bedroom multiple dwellings and one office - Review of conditions - Condition requiring ceding of 1.5 metre wide strip of land adjacent to right of way on future subdivision - No development to encroach on the 1.5 metre wide strip - Policy on widening rights of way - Policy on use of right of way for access - Tests for validity of a condition - Whether condition is for a valid planning purpose - Whether condition reasonably relates to the development - Whether it is reasonable to impose the condition - Development not to militate against achieving planning objectives for the locality

Legislation:

Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Town of Victoria Park Town Planning Scheme No 1, cl 3(1)(b), cl 36(1), cl 36(5)

Result:

Application for review upheld in part
Condition requiring ceding of land for widening of right of way deleted and replaced with condition requiring development to be set back to provide for future widening of right of way

Category: B

Representation:

Counsel:

Applicants: Mr P McQueen
Respondent: Mr R Cruickshank (Acting as Agent)

Solicitors:

Applicants: Lavan Legal
Respondent: Town of Victoria Park

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

Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Real Estate Institute of Western Australia and City of Subiaco [2009] WASAT 111
Starworld Holdings Pty Ltd and City of Melville [2005] WASAT 86

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of two conditions imposed by the Town of Victoria Park on a development comprising two twostorey buildings of multiple dwellings and an office separated by an internal car park with vehicular access off a 3 metre wide right of way adjacent to the side boundary of the lot.
The Town of Victoria Park imposed a condition of approval which required that provision be made for the ceding to the Crown a 1.5 metre wide strip of land adjacent to the boundary with the right of way, with the ceding to be undertaken in conjunction with any future subdivision of the lot. A further condition required that no buildings or other development encroach within the area of the 1.5 metre wide strip.
The Tribunal found that widening the right of way would serve a valid planning purpose, but that, on the submissions before the Tribunal, the future widening of the right of way did not directly and reasonably relate to the current impact of the proposed development. The Tribunal further found, however, that because there was a planning basis for the widening of the right of way, the proposed development should not be so located as to prevent this planning objective being achieved.
The Tribunal decided to uphold the application for review in part. The Tribunal deleted the condition requiring that provision be made for the land required for the widening of the right of way be ceded free of cost upon future subdivision of the land and replaced it with a condition that required that the development be set back to enable future widening of the right of way to be pursued.

Introduction

These proceedings involve an application by Dalcorp Holdings Pty Ltd and Ms Anna Maria Coci (applicants) for review of condition 2 and condition 3 imposed by the Town of Victoria Park (respondent or Council) on granting planning approval for a development comprising an office and multiple dwellings at No 3 (Lot 70) McMillan Street, Victoria Park (site).

Site and locality

The site is rectangular with an area of 1,012 square metres and a frontage of 20.16 metres to McMillan Street at the southeastern boundary. The side boundaries are 50.29 metres, with the northeastern side boundary having frontage to a 3 metre wide right of way.
The right of way extends about 101 metres between McMillan Street and Leonard Street to the north and has twoway traffic. Abutting the right of way to the northeast are lots which have commercial premises fronting Albany Highway and unfenced rear parking and service areas with access off the right of way. These commercial premises are part of the commercial and retail strip along Albany Highway.
Adjoining the site to the southwest is a lot developed with 11 grouped dwellings. To the rear of the site to the northwest is No 6 Leonard Street developed with 10 grouped dwellings. The grouped dwellings to the northwest include a garage with a parapet wall on the boundary of the right of way, outbuildings within 1 metre of the right of way and a boundary wall about 2 metres high along the boundary with the right of way.
McMillan Street is a local distributor road, and the junction of McMillan Street, and Albany Highway is controlled by traffic lights.

Planning framework

The site is zoned Urban under the Metropolitan Region Scheme and District Centre under Town of Victoria Park Town Planning Scheme No 1 (TPS 1). The Council's 'Precinct Plan P11 Albany Highway Precinct' (Precinct Plan P11) is applicable to the site pursuant to cl 3(1)(b) of TPS 1. Clause 36(5) of TPS 1 provides that, in exercising discretion, regard is to be had to:
(a)the provisions of this Scheme …
(b)any relevant planning policy;
(c)any relevant precinct plan;
(d)any statement of planning policy of the Western Australian Planning Commission;
…
(f)any submission accompanying or related to the application;
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality; and
(i)the design, scale and relationship to existing buildings and surroundings of any proposed building or structure.
Precinct P11 states:
6.Carparking: Carparking areas are to be provided at the rear of developments. Where possible, new parking areas and vehicular access points shall be linked with existing facilities.
The Council has adopted Local Planning Policy Streetscape (Streetscape Policy). Clause 3.2.11 A6 'Development abutting rights of way' states, at cl 3.2.11 A6.1(i)(d):
Provides for the widening of underwidth rights of way.
Under performance criteria at cl 3.2.11 of the Streetscape Policy, it states:
Design of new development abutting rights of way consistent with the following criteria:
•promotes the creation of new streetscape environments with a high level of amenity that also respects the character of the primary street and the locality;
•provides a more desirable design outcome for infill residential development;
•ensures that the integrity of the built form is protected and the scale of new development is compatible with that in the locality;
•contributes positively to the creation of a new street environment in terms of function, quality and appearance, as well as the safety and security of the street user;
•creates a pleasant living environment for the occupants of the new development;
•strives to achieve a high degree of sustainability through energy conscious site design, building design and materials choice; and
•strives to achieve excellence through sound architectural and site design.
The respondent also made reference to Western Australian Planning Commission Planning Bulletin No 33 July 1999 'Rightsofway or Laneways in Established Areas Guidelines' (PB 33) which 'encourages the adoption of a coordinated longterm approach to the use and upgrading of rights of way in areas undergoing redevelopment'. Clause 6.2 of PB 33 includes the statement:
Wherever a subdivision (including strata title or survey strata) or development gains access from a right of way less than 6 metres wide (or 5 metres, if appropriate), the approval may require that the land required to widen the laneway to 6 metres (assuming equal widening on both sides of the right of way, where appropriate) will be given up free of cost to be dedicated as public use.

Proposed development

Proposed is a development which comprises two twostorey buildings, 'block A' and 'block B', separated by a car park. Proposed block A would be set back 4 metres from the McMillan Street front boundary and would have on the ground floor an office on the eastern side, adjacent to the right of way, and a onebedroom multiple dwelling on the western side. On the first floor of block A would be two onebedroom multiple dwellings.
Block B would be set back 2 metres from the rear boundary and would have two twobedroom multiple dwellings on the ground floor and two twobedroom multiple dwellings on the first floor.
Between the two buildings would be six carports at the rear of block A and six carports at the front of block B separated by a 6 metre wide central accessway. Vehicular access to this parking area would be from the adjacent right of way about 25 metres from the front boundary of the site. There would also be a parking space between the front of the office and McMillan Street, with access from the right of way.
The side of block B would be set back 2.5 metres from the right of way. In that setback would be a 1 metre wide landscaped strip adjacent to the right of way, then a twometre high wall, then a 1.5 metre wide path providing access between the front and rear of the building.
The side of the carports would be set back 1.75 metres from the right of way. This setback would include the 1 metre wide landscape strip, the 2 metre high wall and 0.75 metre of landscaping to the edge of the carport. An automatic gate to a 4 metre wide gateway in the wall would provide access to the car park.
Block A would also be set back 2.5 metres from the right of way. The landscape strip would be 1.3 metres wide and there would be a 1.2 metre wide footpath from the front to the rear of the building. There would be no fence adjacent to block A.
At the southwestern side boundary of the site, the buildings would be set back 1.5 metres from the common boundary with the nextdoor lot of grouped dwellings. The carports would be set back 0.75 metres from this boundary.

Council's decision and the application for review

The Council granted planning approval for the proposed development on 4 May 2010. The application for review relates to condition 2 and condition 3 imposed by the Council, which are expressed in the following terms:
2.Provision being made for the ceding to the Crown of a 1.5 metre wide strip of land adjacent to the boundary with the right of way, for the length of the common boundary with the right of way, as shown in red on the approved site plan. Such ceding to be undertaken in conjunction with any future subdivision of the lot.
3.No buildings, structures, landscaping etc are to encroach within the area referred to in condition 2 above.
Pursuant to s 60(2) of the SAT Act, the Tribunal ordered that the matter be determined entirely on the documents. On 22 October 2010, the Tribunal visited the site and surrounds in the company of representatives of both parties.

The issue

The issue in this matter is:
Whether the requirement that provisions be made for the future ceding of a 1.5 metre wide strip of land adjacent to the site boundary with the right of way in conjunction with any future subdivision of the lot is appropriate and reasonable.

Discussion

The test for the validity of a condition of planning approval, as Mr Paul McQueen, counsel for the applicants, pointed out, is wellknown. In Newbury District Council v Secretary of State for the Environment [1981] AC 578, it was held that, for a condition of planning consent to be valid, it must:
i)be for a planning purpose, not for any ulterior purpose;
ii)fairly and reasonably relate to the development permitted; and
iii)not be so unreasonable that no reasonable planning authority would have imposed such a condition.
In respect of the first test, the Tribunal has formed the view from the planning instruments and the submissions made that widening the right of way would serve a valid planning purpose. This planning purpose the Tribunal considers is found, as required by the first Newbury test, in reference to the planning instruments and the Council's planning objectives for the locality, not just in what might be considered a general notion of what constitutes planning.
The applicants said the respondent's rationale was to impose condition 2 in all cases rather than in consideration of relevant planning factors affecting the development. It was submitted that the condition on widening of the right of way was simply a blanket application of the respondent's administrative practices.
Mr Paul Kotsoglo, a planner who made submissions on behalf of the applicants, submitted that the Streetscape Policy was not applicable. Mr Kotsoglo said the Streetscape Policy was concerned with residential development and the site and lots on the opposite side of the right of way were zoned District Centre. Mr Kotsoglo cited from the Streetscape Policy the reference to the creation of new streetscapes not being feasible in situations where residential zoned land faced the rear of non-residential properties across a right of way.
Mr Robert Cruickshank, a town planner who made submissions on behalf of the respondent, referred to the Council's consistent application of PB 33 and the Streetscape Policy. It was his submission that the Council has been applying its policy on right of way widening since 2001 and imposing as a condition of development approval a requirement for the widening of adjacent rights of way. The longterm vision was to facilitate improved access for existing and future development adjacent to the right of way by requiring the right of way to be 6 metres wide. He said it would therefore be fair and reasonable for the development to make provision for the future widening of the right of way.
The Tribunal considers there is a basis for planning for a 6 metre wide right of way consistent with PB 33. PB 33 has been a relevant planning consideration since its publication in July 1999. It is directed to residential and commercial development as well as subdivision. In this matter, the Tribunal considers PB 33 is to be given weight because of the number of lots zoned District Centre, which will include the proposed development, which use the right of way for access to parking and service areas.
The Streetscape Policy is dated May 2005. The Tribunal considers it relevant because the proposal is for a largely residential development. Of the performance criteria at cl 3.2.11 of the Streetscape Policy, relevant is that the design of new development:
… contributes positively to the creation of a new street environment in terms of function, quality in appearance, as well as the safety and security of the street user.
Under the Streetscape Policy, reference is made at cl 3.2.11 A6.1(i)(b) that acceptable development:
Provides for the widening of underwidth rights of way.
The Tribunal has formed the view that, having regard to the location of the site and the use of the neighbouring lots, a development on the site that provided for the widening of the right of way would meet the performance criteria of the Streetscape Policy.
The Tribunal has had before it a submission from Mr Donald Veal, a traffic and transport consultant called by the applicants. The Tribunal, in considering the planning objectives for the locality, found unconvincing the points made by Mr Veal in support of there being no widening of the right of way. Mr Veal identified six sections where vehicles are able to 'pull in' on the eastern side of the right of way to allow opposing traffic to pass. The sections where vehicles can 'pull in' are identified by Mr Veal as parking aisles or accessways to parking spaces, spaces adjacent to tandem bays and then the 6.3 metre wide section of right of way at the Leonard Street end. Mr Veal says the right of way has 'passing opportunities' totalling 59.2 metres, with 41.2 metres restricted to a single lane. This arrangement is said to satisfy the requirements for slow points and driveway links associated with local traffic managed devices in Austroads (2008) 'Guide to traffic management Part 8: Local Area Traffic Management'.
Mr Veal said this arrangement is adequate and appropriate for selfenforcing low speeds and is recognised as a solution to use of a right of way for access in s 5.1 of PB 33.
Mr Cruickshank's response was that:
The need for vehicles to drive on to privately owned properties to enable other vehicles to pass is unacceptable, particularly when the owners of these private properties have the right to secure their property.
The Tribunal does not accept that current use made of the right of way by vehicles is a reason why widening need not be required. Relying on vehicles being able to drive over privately owned neighbouring land so that an opposing vehicle can pass is not an acceptable longterm planning solution to traffic movement. The Tribunal is of the view that the Council's planning objective of having a 6 metre wide right of way which would enable opposing vehicles to pass, including when vehicles were waiting to enter driveways to adjoining properties, is a planning solution that has merit.
The Tribunal would comment at this point that, consistent with finding that the widening of the right of way has planning merit, it follows that development should not be allowed that will militate against that planning objective being achieved. The respondent acknowledges that, in its current form, the development on No 6 Leonard Street prevents widening of the right of way. This development was approved by the City of Perth prior to PB 33 and the adoption by the Council of its current approach to access from rights of way.
The Tribunal does not accept that the development on No 6 Leonard Street means that the process of land being identified for right of way widening should not commence. One 20 metre long section of the right of way has been widened to 6 metres near Leonard Street. It is not unusual that there be a long timeframe associated with achieving planning outcomes. The ability to have future widening adjacent to other properties should not be ignored because of the time it will ultimately take to achieve the completed widening of the right of way.
Next to be addressed is the second 'Newbury test', which is whether condition 2 fairly and reasonably relates to the proposed development.
The Tribunal would first state that, if it were to be found that there was a nexus between the intensity of the use made of the right of way by the proposed development and the need therefore to widen the right of way, then a condition requiring the right of way widening being ceded would be considered appropriate. In Real Estate Institute of Western Australia and City of Subiaco [2009] WASAT 111, the City of Subiaco refused to grant approval for a development that would use a rear right of way for vehicle access. The development was allowed on review by the Tribunal and a condition was imposed requiring that the rear laneway be widened by 1.5 metres on each side where it abuts the site, and this was to be shown on a diagram or plan of survey and ceded free of cost to the Crown. This condition was not the subject of the application for review and so no more can be said than it was imposed and must be satisfied to enable the proposed development to be completed.

The Tribunal would add that, as found by the Town Planning Appeal Tribunal in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181, if, in addition to providing for the development, the condition were also to benefit the public at large to a greater or lesser degree, that would not be fatal to the imposition of the condition.
In this matter, Mr Cruickshank in his submission said, at [24]:
The arguments put forward by Mr Kotsoglo at paragraph 13.1.6 as to why the proposed development does not in itself require the widening of the right of way are understood, however the requirement for widening is not necessarily to accommodate the proposed development, but rather[,] part of a long-term view taking into account the further future development of the sites adjacent to the right of way.
This concession and the wording of condition 2 as imposed has led the Tribunal to conclude that proposed condition 2 fails the second Newbury test. It is found from the documents that the respondent has not considered that the effect of traffic using the right of way as a result of the development is sufficient to warrant the widening of the right of way before development commences.
The Tribunal finds this conclusion is reflected in the wording of condition 2 as imposed by the Council. The widening is not required to enable the proposed development to proceed but at some unspecified time in the future when subdivision occurs.
As submitted by Counsel for the applicant, there is required a temporal connection between the proposed development and the requirements of the condition. That is, a condition of development must relate to the application and not attempt to circumscribe future decisions by others involving the land: Starworld Holdings Pty Ltd and City of Melville [2005] WASAT 86.
The Tribunal's concern is that, if subdivision did not occur in the future, the land required for widening the right of way would not be obtained. More significantly, the condition purports to require that, in the future, the Western Australian Planning Commission agree to allow subdivision to occur and agree that imposing a condition requiring the ceding free of cost of land required for widening the right of way is appropriate. It might be that, on considering a future subdivision application for the site, the Western Australian Planning Commission considers the ceding of land to widen the right of way is appropriate, but that is a decision for the Western Australian Planning Commission at that time.
The requirements of condition 2 are considered by the Tribunal to go beyond requirements involving a third party sometimes imposed on a subdivision or development approval. Such conditions can, for example, involve work such as a median strip or a sewerage connection. Conditions of this type might be imposed when there is a genuine likelihood that the condition can be satisfied within the life of the approval granted and are not speculation. Such is not the case with condition 2.
The Tribunal is also of the view that condition 2 as imposed is uncertain. It was not apparent from the documents what would be required to satisfy 'provision being made for the ceding to the Crown of a 1.5m wide strip of land' from the site as required by condition 2.
The Tribunal has formed the view that, because of the wording of condition 2 and the absence of evidence that there is a nexus between the condition and the development, condition 2 fails the second of the Newbury tests.
In turning to the third of the Newbury tests, the Tribunal is of the opinion that, in the form it has been imposed, condition 2 is unreasonable. This is because of the absence of evidence of the right of way being required specifically because of the proposed development and the wording of condition 2.
The Tribunal is of the view, however, as stated above, that there is a planning purpose in the right of way being widened as part of the future development of the locality. In this regard, the Tribunal considers it appropriate and reasonable that the development of the site not prevent the ultimate achievement of the planning objectives for the locality.
The Tribunal considers the development should be set back from the right of way, including of the 2 metre high screen wall. This would enable the planning objectives for the locality, which include the widening of the right of way, to ultimately be achieved. The plans of the proposed development show that a setback of 1.5 metres from the right of way within which there would be no development can be achieved without affecting the number of dwellings created. A setback of this type would enable the Council to pursue options for future right of way widening with the owners of the site.

Conclusion

The Tribunal has found that the widening of the right of way adjacent to the site has merit as a planning objective for the locality. This planning objective has been in place for at least the last five years. There has not been sustained before the Tribunal, however, argument that supports the widening being ceded free of cost by the applicants as part of the proposed development.
The Tribunal has concluded that condition 2 as imposed cannot be reasonably sustained, but that it would be appropriate to impose a different condition that would ensure that development did not occur in the area where the future right of way widening would occur. Condition 3 could be amended accordingly. Landscaping of the setback area, if the applicants consider it appropriate, would be on the understanding that, if and when the widening of the right of way occurs, the landscaping would be removed.

Orders

1.The application for review is upheld in part.
2.Condition 2 imposed by the Town of Victoria Park in its approval issued 4 May 2010 is deleted and replaced with the following new condition 2:
All development is to be set back 1.5 metres from the rightofway for the length of the common boundary with the rightofway to allow for the future widening of the rightofway.
3.Condition 3 imposed by the Town of Victoria Park in its approval issued 4 May 2010 is amended to read:
No building, structure, or other development is to encroach within the area referred to in condition 2 above, unless planning approval is obtained from the Council.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER