DAY & ORS and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 146
•8 JUNE 2006
DAY & ORS and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 146
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 146 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:615/2005 | 10 MARCH 2006 | |
| Coram: | MS J SMITHSON (SESSIONAL MEMBER) | 8/06/06 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application for review be upheld The submissions approved subsequent to conditions | ||
| B | |||
| PDF Version |
| Parties: | MARTIN DENNIS DAY JOSPEHINE PATRICE DAY RAYMOND DENNIS DAY SILVIA AUDREY DAY WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning – Special rural subdivision – Consideration of draft town planning scheme as seriously entertained proposal – Subdivision without zoning – Land capability – Precedent – Watercourse easement – Use of restrictive covenants – Application upheld |
Legislation: | Draft Shire of Kalamunda Town Planning Scheme No 3 Foothills Structure Plan 1992 Metropolitan Region Scheme Planning and Development Act 2005 (WA) Shire of Kalamunda Town Planning Scheme No 2, cl 6.17 Town Planning and Development Act 1928 (WA) Transfer of Land Act 1893 (WA), s 70A, s 129BA |
Case References: | Nil Rykers v Western Australian Planning Commission [2004] WATPAT 122 |
Orders | On the application heard before Sessional Member Jenny Smithson on 8 June 2006, it is ordered that:,1. The application for review is upheld.,2. The subdivision application is approved subject to the following conditions:,(i) All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation (local government);,(ii) No lot being less than 1.0 hectare in area (local government);,(iii) Prior to commencement of site works, a detailed plan identifying building envelope/s and effluent disposal envelope/s on all lots on the approved plan of subdivision is to be prepared in consultation with the local government which provides for a minimum distance of 30 metres for effluent disposal systems from the water course (local government);,(iv) Notification in the form of a section 70A notification, pursuant to the Transfer of Lands Act 1893 (as amended) is to be placed on the Certificates of Title of the proposed lot/s advising of the approved building envelope plan (local government);,(v) A restrictive covenant being created, pursuant to section 129BA of the Transfer of Land Act 1893 in favour of the Shire of Kalamunda, to the satisfaction of the Western Australian Planning Commission, to restrict the uses permitted on the proposed lots to those uses permitted in the "Special Rural Zone" within the Shire of Kalamunda Town Planning Scheme No 2 and to those provided within the provisions contained in cl 6.17 of the Shire of Kalamunda Town Planning Scheme No 2 relating to special rural zones. The covenant is to remain in force until appropriate land use controls are included in the Shire of Kalamunda's operative town planning scheme for the subject lots (local government);,(vi) Any bridge construction across the creek is to be undertaken to the specifications of the Shire of Kalamunda (local government);,(vii) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Synergy (formerly Western Power) for the provision of an underground electricity supply service to the lot/s shown on the approved plan of subdivision (Synergy, formerly Western Power);,(viii) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Synergy (formerly Western Power) for the removal, relocation and/or replacement of electricity supply infrastructure, including plant and equipment, located on or near the lots shown on the approved plan (Synergy, formerly Western Power);,(ix) Prior to commencement of site works, investigation for soil and ground water contamination is to be carried out to the specifications of the Department of Environment (Department of Environment);,(x) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to lot/s shown on the approved plan of subdivision (Water Corporation); and,(xi) The subdivider shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that provision of a reticulated service will not be available to the lots and that all future dwellings on the lots will need to be connected to on site effluent disposal system/s (local government). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : DAY & ORS and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 146 MEMBER : MS J SMITHSON (SESSIONAL MEMBER) HEARD : 10 MARCH 2006 DELIVERED : 8 JUNE 2006 FILE NO/S : DR 615 of 2005 BETWEEN : MARTIN DENNIS DAY
- JOSPEHINE PATRICE DAY
RAYMOND DENNIS DAY
SILVIA AUDREY DAY
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning – Special rural subdivision – Consideration of draft town planning scheme as seriously entertained proposal – Subdivision without zoning – Land capability – Precedent – Watercourse easement – Use of restrictive covenants – Application upheld
(Page 2)
Legislation:
Draft Shire of Kalamunda Town Planning Scheme No 3
Foothills Structure Plan 1992
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
Shire of Kalamunda Town Planning Scheme No 2, cl 6.17
Town Planning and Development Act 1928 (WA)
Transfer of Land Act 1893 (WA), s 70A, s 129BA
Result:
The application for review be upheld
The submissions approved subsequent to conditions
Category: B
Representation:
Counsel:
Applicants : Mr Brokenshire
Respondent : Ms Ide
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Rykers v Western Australian Planning Commission [2004] WATPAT 122
(Page 3)
Summary of Tribunal's decision
1 These proceedings concerned an application for review of the refusal by the Western Australian Planning Commission for subdivision of Lot 545 Holmes Road, Forrestfield.
2 The application proposed the creation of two lots of approximately 1.14 hectares on "Rural" zoned land that was earmarked for "Special Rural" rezoning under the draft Shire of Kalamunda Town Planning Scheme No 3 in an area where precedent existed for similarly zoned land to be subdivided into similarly sized lots.
3 The application refused by the Western Australian Planning Commission was also not supported by the Shire of Kalamunda. In essence the grounds for refusal included the current "Rural" zoning of the land, that it pre-empted draft Shire of Kalamunda Town Planning Scheme No 3, and that it would create an unacceptable precedent.
4 The Tribunal found that the application should be approved. There was precedent for similar subdivisions, subject to restrictive covenants referencing draft Shire of Kalamunda Town Planning Scheme No 3, having been elsewhere supported by both the Shire and Western Australian Planning Commission and the subdivision was located within an area which contained comparable lot sizes. Furthermore, the site adjoined land zoned "Special Rural" and was proposed to be zoned "Special Rural" under draft Shire of Kalamunda Town Planning Scheme No 3 which is close to finalisation.
5 The application for review was upheld.
Introduction
6 The applicants are Mr Martin Day, Mrs Josephine Day, Mr Raymond Day and Mrs Silvia Day (applicants). The respondent is the Western Australian Planning Commission (WAPC).
7 In July 2005, the applicants submitted a subdivision application to the WAPC to subdivide an existing 2.2796 hectare rural lot into two lots of equal size being 1.1398 hectares (proposed Lot 1 and proposed Lot 2). The property is Lot 545 (No 302) Holmes Road, Forrestdale (the site).
(Page 4)
8 The purpose of the subdivision was stated as being to enable a second residence on the Day property to enable the Days to live adjacent to their ageing parents.
9 On 7 October 2005, the application was refused by the WAPC for the following reasons:
"1) The proposed subdivision does not comply with the Commission's Policy 3.4, a provision of State Planning Policy No 1 – State Planning Framework, by reason that it would result in subdivision of rural land, which is not provided for in the current Town Planning Scheme, an endorsed local planning strategy or an endorsed local rural strategy.
2) The proposed subdivision is premature and would pre-empt the outcomes of draft Town Planning Scheme No 3. Approval of the subdivision is not considered to be in the interests of orderly and proper planning.
3) The land is zoned 'Rural' in the Metropolitan Region Scheme and Council's Planning Scheme where the Commission does not favour further fragmentation as this leads to smaller lots sizes and closer development which would conflict with the intent of the rural zoning of both these Schemes.
4) The proposed subdivision is inconsistent with the 'Rural' zoning of the land, the principle purpose of which is to preserve its rural use and density of development. The subdivision, if permitted, would result in an unplanned breakdown of land holdings [sic].
5) Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the rural zone of this locality."
The site
10 The site is zoned "Rural" under the Metropolitan Region Scheme and under Shire of Kalamunda Town Planning Scheme No 2 (TPS 2). It is proposed to be rezoned to "Special Rural" under draft Shire of Kalamunda Town Planning Scheme No 3 (draft TPS 3). Draft TPS 3 has been advertised following consent from the WAPC and has been given final
(Page 5)
- approval by the Shire. It is currently with the WAPC awaiting a recommendation for finalisation.
11 The site is adjoined by land predominantly zoned "Special Rural" to the east and south. The Forrestdale townsite containing residential development is to the west, whilst land zoned for future urban development predominates to the north.
12 Lots adjoining the site, or within close proximity, have a range of sizes from 9847 square metres (Lot 1 opposite the site) to 4.049 hectares (adjoining lot to the north). The prevailing lot sizes are between 1.0 hectare and 2.3 hectares. There is no minimum lot size for the "Rural" zone specified in TPS 2. The minimum lot size for the "Special Rural" zone is 1.0 hectare where reticulated water can be provided. Reticulated water could be provided to the proposed subdivision.
13 Two watercourses traverse Lot 545; Whistlepipe Gully and Woodlupine Brook, and render approximately half of the site incapable of further development. The watercourses are important landscape elements and support vegetation and wildlife.
14 The site was part of a former subdivision, created in 2002, which resulted in the watercourses being contained within an easement with associated restrictive covenants protecting the existing flora and fauna by precluding vegetation clearance and development within the easement. The easement is traversed by a footbridge providing access to the rear of the site. The proposed subdivision retains the easement and associated covenants over the two proposed lots, and provides reciprocal rights of access over the footbridge. An existing residence is to be retained on proposed Lot 1 and a new residence built on proposed Lot 2.
Planning context
15 The site is in a relatively isolated pocket of "Rural" zoned land situated generally between the Forrestfield residential area (coded R12.5) and future urban areas, and land with a "Special Rural" zoning. Rather than being a transition zone between rural and residential areas, it appears to be an anomalous zoning given the closer development that surrounds it and the prevailing existing lot sizes which tend to be more akin to those of a "Special Rural" area. It is noted that properties immediately opposite the site in Holmes Road are zoned "Special Rural".
(Page 6)
16 It was not readily evident as to why the land retains a "Rural" zoning whilst surrounding areas are generally zoned "Special Rural" or for urban purposes.
17 The Shire has indicated its strategic intent by proposing to rezone the area "Special Rural" under draft TPS 3. Draft TPS 3 is a seriously entertained proposal having been given final approval by the Shire following advertising. No objections were raised during advertising to the rezoning of the subject site or its environs and the respondent did not object to this zoning. There is nothing to suggest that the zoning of the site under draft TPS 3 will not be finalised in the foreseeable future, in which case the respondent's grounds for refusal would no longer be relevant.
18 The site is designated as "Landscape Protection" under the Foothills Structure Plan where the intent is to prevent the merging of urban areas, preserve significant landscape features by sympathetic development, and discourage fragmentation of land holdings. There is nothing in the application which suggests that landscape features will be compromised and it appears that there is already a significant merging of rural and residential areas in the vicinity of the site.
19 The "Rural" zoning under the MRS does not preclude subdivision in the manner proposed by this application. Land zoned "Special Rural" in the metropolitan region is generally zoned "Rural" under the MRS.
20 The applicants reasonably question why the proposed subdivision is not in accordance with orderly and proper planning, when the most current strategic document for the area, being draft TPS 3, has substantially progressed and promotes the form of development for the area proposed by this application.
Precedent
21 Both the respondent and the Shire raised a concern with the precedent arising if the subdivision was approved.
22 In 1999, a subdivision proposal for minimum 1.0 hectare lots, which included the site, was refused by the respondent but approved under Ministerial appeal. However, the subdivision did not proceed, as a condition requiring a sewer connection rendered the subdivision not viable, as the sewer had to be extended across the two watercourses. A modified proposal with on site effluent disposal, and proposing five lots ranging from 1.0 hectare to 2.2796 hectares instead, eventuated in 2002
(Page 7)
- and created the site. It is noted, therefore, that precedent was established for 1.0 hectare lots under the 2002 approval.
23 The applicant provided examples of precedent whereby a number of "Rural" zoned lots in the Shire had been approved for subdivision into minimum 1.0 hectare lots. Conditions of approval included a requirement that restrictive covenants be placed on the new titles. The covenants restrict the uses permitted on the new lots to be those permitted within the "Special Rural" zone under TPS 2. The respondent argued that the examples provided were not relevant as the lots were physically different (that is, not constrained by watercourse easements). However, the Tribunal noted that the physical constraints of the site were not given as an initial ground for refusing the application.
24 Whilst it is accepted that approval to this subdivision could result in pressure for subdivision of a number of "Rural" zoned properties in the vicinity, it appears that precedent already exists. The WAPC has previously issued approval for "Special Rural" type subdivision of "Rural" zoned land elsewhere in the Shire and in fact for similar sized lots incorporating the site.
25 The Shire argued that the existing vegetated watercourses on the site limited its ability for further subdivision and development. The applicants argued that there was sufficient area to accommodate a new dwelling on the second lot with minimal vegetation clearance and without impacting on the watercourse easement, and therefore the landscape or environmental values of the property.
26 These sites' landscape values were seen by the applicants to be qualities that enhanced the property. The intent was to use the two proposed lots as essentially "rural retreats".
27 The respondent argued that no capability analysis had been submitted demonstrating land capability for sustainable agricultural use of the two lots. However, the applicants stated it was not their intent to use the additional lot for agricultural purposes. The only development proposed as part of the subdivision application was to construct a second residence on the additional lot on a part of the site which was not within the easement, heavily vegetated or otherwise constrained for development.
28 There was no evidence that more intensive or alternative rural use of the site was a preferred planning outcome or that the land was suitable for agricultural or rural production purposes. On the contrary, there was
(Page 8)
- agreement between the parties that the site's environmental features (particularly the vegetated watercourses) should be preserved.
29 The respondent raised a concern that the subdivision would detract from the rural landscape and amenity of the locality. However, only one additional residence was proposed on a substantially cleared portion of the site and largely screened from Holmes Road by existing vegetation, which would be retained. Indeed, more intense rural activities would likely have an adverse impact on landscape amenity requiring vegetation removal.
Other issues
30 The respondent raised the Shire's concern with the shape and configuration of the subdivision, in that the narrow width of the lots would not allow for sufficient spacing and configuration between the existing and proposed dwellings. The applicants demonstrated, however, that the new residence could be constructed to readily comply with town planning scheme requirements, and could be screened from both the road and the adjoining residences by existing vegetation. Furthermore, lots with narrower frontages could be found in the immediate vicinity of the site.
31 Possible difficulties were also raised with the proposed subdivision in terms of road access and effluent disposal. In terms of access, two access points already existed and there was no evidence to suggest that there were any safety issues associated with the locations proposed. In terms of effluent disposal, the proposed method of disposal was in accordance with a condition recommended by the EPA.
32 Concern was also raised that access across the watercourse easement to the rear of both lots would be via a single bridge proposed to have reciprocal rights of access. As it is not intended to undertake any form of development at the rear of either lots requiring vehicular access, and the bridge is already the only form of pedestrian access to the rear of the existing site, no major concerns were seen to arise with this arrangement.
33 The respondent stated that it was not appropriate to use restrictive covenants under s 129BA of the Transfer of Land Act 1893 (WA) to override town planning scheme provisions. The Tribunal agrees as a general principle. However, numerous examples were cited of subdivision approvals issued by the respondent in the "Rural" zones of the Shire using this mechanism, including recent approvals, and accordingly, this concern was not seen to be sufficient justification to refuse the application.
(Page 9)
34 The respondent also argued that subdivision should not proceed without the prior preparation of a "Subdivision Guide Plan". However, given that options for an alternative subdivision design for the site, or for the further subdivision of adjacent lots, would be substantially constrained by the existing watercourses, a new vehicular crossing, which is unlikely to be supported or viable, is the only likely option; without adversely impacting on the site's environmental features, to that sought by the proposed subdivision.
Findings and conclusion
35 For the reasons summarised below, the Tribunal determines that the application for review be upheld:
i) WAPC Policy DC 3.4 "Subdivision of Rural Land" contains a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, planning strategy or rural strategy. However, a general presumption does not remove the requirement for applications to be considered on their merits. Given the advanced nature of draft TPS 3 which would facilitate this subdivision, the precedent established by previous approval for a subdivision at this density for the site, the prevailing lot size in the area and the precedent created by approvals for similar lot sizes in the same zone, the Tribunal forms the view that the presumption should not apply in this instance.
ii) A special rural lot can be used for residential purposes within a landscaped or natural setting without the need for the land to be used for some other rural purpose.
iii) There is nothing to suggest that an additional lot or second residence will have an adverse impact on the environmental features of the property, given there is no proposal to remove, or impact upon, the watercourse easement or significantly affect vegetated areas. To the contrary, the proposed subdivision and use is likely to be more sustainable in terms of protecting the existing watercourses and vegetated landscape features than intensification of rural or agricultural use of the property.
iv) There is precedent for the subdivision proposed and it would not be out of character with development in the area or the area's rural landscape features.
(Page 10)
Orders
36 The Tribunal makes the following orders:
1. The application for review is upheld.
2. The subdivision application is approved subject to the following conditions:
1) All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation (local government);
2) No lot being less than 1.0 hectare in area (local government);
3) Prior to commencement of site works, a detailed plan identifying building envelope/s and effluent disposal envelope/s on all lots on the approved plan of subdivision is to be prepared in consultation with the local government which provides for a minimum distance of 30 metres for effluent disposal systems from the water course (local government);
4) Notification in the form of a section 70A notification, pursuant to the Transfer of Lands Act 1893 (as amended) is to be placed on the Certificates of Title of the proposed lot/s advising of the approved building envelope plan (local government);
5) A restrictive covenant being created, pursuant to section 129BA of the Transfer of Land Act 1893 in favour of the Shire of Kalamunda, to the satisfaction of the Western Australian Planning Commission, to restrict the uses permitted on the proposed lots to those uses permitted in the "Special Rural Zone" within the Shire of Kalamunda Town Planning Scheme No 2 and to those provided within the provisions contained in cl 6.17 of the Shire of Kalamunda Town Planning Scheme No 2 relating to special rural zones. The covenant is to remain in force until appropriate land use controls are included in the Shire of Kalamunda's operative town planning scheme for the subject lots (local government);
- 6) Any bridge construction across the creek is to be undertaken to the specifications of the Shire of Kalamunda (local government);
7) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Synergy (formerly Western Power) for the provision of an underground electricity supply service to the lot/s shown on the approved plan of subdivision (Synergy, formerly Western Power);
8) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Synergy (formerly Western Power) for the removal, relocation and/or replacement of electricity supply infrastructure, including plant and equipment, located on or near the lots shown on the approved plan (Synergy, formerly Western Power);
9) Prior to commencement of site works, investigation for soil and ground water contamination is to be carried out to the specifications of the Department of Environment (Department of Environment);
10) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to lot/s shown on the approved plan of subdivision (Water Corporation); and
11) The subdivider shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that provision of a reticulated service will not be available to the lots and that all future dwellings on the lots will need to be connected to on site effluent disposal system/s (local government).
- I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J SMITHSON, SESSIONAL MEMBER
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