DE ABREU and WESTERN AUSTRALIAN PLANNING COMMISSION
[2019] WASAT 57
•25 JULY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DE ABREU and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 57
MEMBER: MR M SPILLANE, SENIOR MEMBER
HEARD: 14 DECEMBER 2018
FINAL WRITTEN SUBMISSIONS 14 MARCH 2019
DELIVERED : 25 JULY 2019
FILE NO/S: DR 105 of 2018
BETWEEN: MIGUEL ANGELO PEREIRA DE ABREU
First Applicant
TERESA REBOLA DE ABREU
Second Applicant
WALTER JAMES GOODING
Third Applicant
ASHWELL HOLDINGS PTY LTD
Fourth Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review of refusal of subdivision application - Surveystrata termination and conversion to freehold - Nested subdivision - Development and Control Policy 2.2 - Variation to average lot size - Consideration of proposed subdivision against criteria in cl 5.1.1 State Planning Policy 3.1 - Residential Design Codes - Having regard to changes that subdivision is likely to produce - Looking at proposal in its full context - Matter of orderly and proper planning
Legislation:
City of Melville Local Planning Scheme No 6, cl 16, cl 25(1), Pt 3
Planning and Development Act 2005 (WA), s 251(1)
State Planning Policy 3.1 - Residential Design Codes, cl 5.1.1, Table 1
Strata Titles Act 1985 (WA), s 3, s 4(1), s 4(4), s 8(1), s 30A, Pt II
Result:
Decision of respondent affirmed
Application dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr M Hotchkin |
| Second Applicant | : | Mr M Hotchkin |
| Third Applicant | : | Mr M Hotchkin |
| Fourth Applicant | : | Mr M Hotchkin |
| Respondent | : | Mr IA Repper |
Solicitors:
| First Applicant | : | Hotchkin Hanly |
| Second Applicant | : | Hotchkin Hanly |
| Third Applicant | : | Hotchkin Hanly |
| Fourth Applicant | : | Hotchkin Hanly |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bormolini and Western Australian Planning Commission [2014] WASAT 121
Crugnale and Commissioner of State Revenue [2019] WASAT 8
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
SinAusBel v Western Australian Planning Commission (2006) 45 SR (WA) 67
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 19 January 2018, Mr Miguel Angelo Pereira De Abreu, Ms Teresa Rebola De Abreu, Mr Walter James Gooding and Ashwell Holdings Pty Ltd (the applicants) applied to subdivide Lots 1 and 2 (No 1A and No 1B) Hesford Avenue, Mount Pleasant (proposed subdivision), in the City of Melville (City), (Survey Strata Plan No 3104, Certificates of Title Volume 1409, Folio 129 and Volume 1409, Folio 130) (subject land).
Lots 1 and 2 each form part of the whole of a single survey-strata scheme (Lot 1 and Lot 2 on Survey-Strata Plan 3104).
Survey-Strata Plan 3104 has been created over green title Lot 120 on Plan 5104.
On 6 April 2018, the Western Australian Planning Commission (WAPC) (respondent) refused the proposed subdivision for the following reasons (decision):
1.The proposed subdivision does not comply with Clause 5.1.1 of the Western Australian Planning Commission's State Planning Policy 3.1 - Residential Design Codes, the City of Melville Local Planning Scheme No. 6, or Clause 3.5 of the Western Australian Planning Commission's Development Control Policy 1.1 - Subdivision of Land by reason that the proposed subdivision does not meet the average lot size and minimum frontage requirement required for R20 density coding and is not considered to comply with the Design Principles outlined within PI. 2 of the Residential Design Codes to warrant a variation to the average lot size.
2.The proposed subdivision does not comply with Clause 2 of the Western Australian Planning Commission's Development Control Policy 2.2 - Residential Subdivision as the inclusion of a lot to achieve compliance with the required average lot size, but which does not result in a substantial change or adjustment to the boundary, is deemed not to be a subdivision undertaken for a legitimate purpose.
3.Approval of the subdivision would set an undesirable precedent for the further subdivision of other lots of a similar size in the locality which would undermine the objectives and provisions of the State Planning Framework and City of Melville Local Planning Scheme No. 6 for lots subject to the same density coding, and facilitate development that would be out of keeping with the character of the local area.
On 3 May 2018, the applicants applied to the Tribunal for a review of that decision (review application) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
The subject land
The subject land was first created as a separate lot in 1927 as Lot 120 by the endorsement of Plan 5014.
The multiple lots created by Plan 5014 were each approximately ¼ acre (1011m²) with a development density of approximately R10.
In the period 1965 to 1974, a single dwelling was constructed on the subject land.
In 1975, by Strata Plan 3104 a built strata was created over Lot 120, which divided the then existing dwelling into two separately titled dwelling units.
In September 1985, the City of Melville Local Planning Scheme No 3 was gazetted and the subject land was zoned R25.
In February 1998, the built strata was converted into a surveystrata.
In December 1999, the City of Melville Town Planning Scheme No 5 was gazetted and the subject land was rezoned to a density code of R12.5.
In May 2016, the City of Melville Town Planning Scheme No 6 (LPS 6 or Scheme) was gazetted and the subject land and its surrounds was again rezoned to a density code of R20 which is its current coding.
The subject land is bounded by Hesford Avenue to the north, and Curruthers Road to the east. The surrounding land is primarily residential zoned land and is largely low density.
As outlined above, SurveyStata Plan 3104 has been created over green title Lot 120 on Plan 5104 with Lots 1 and 2 each forming part of the whole of the surveystrata scheme.
Lot 1 is 593m² and surveystrata Lot 2 is 712m², which total 1,305m². Lot 1 is a corner lot with a 13.14 metre frontage to Curruthers Road and a 25.66 metre frontage to Hesford Avenue. Lot 2 has an 18.92 metre frontage to Hesford Avenue.
The proposed subdivision would result in a total of three freehold lots with the current Lot 1 retaining its existing lot area of 593m² and its existing boundaries and frontages. Lot 2, which is presently 712m², would be subdivided into two lots (proposed Lots 2 and 3), which would each be 356m² in area.
In addition to Lot 1 retaining its area, boundaries and frontages, the recently constructed dwelling located on Lot 1 would also be retained. In respect of Lot 2 it is proposed that the older dwelling located on Lot 2 would be demolished to facilitate the creation of proposed Lots 2 and 3. However, a recently build studio currently located in the southwest corner of Lot 2 would be retained at the rear of proposed Lot 3.
Comments from referral agencies
The proposed subdivision was referred to the City, the Water Corporation, Western Power and the Department of Water and Environmental Regulation for comment.
The City objected to the proposed subdivision and claimed that the application constituted a nested subdivision for the purposes of Development and Control Plan 2.2 (DCP 2.2) and in a letter dated 13 March 2018 stated:
…
In this instance 1A Hesford Ave does not change in lot area, however its lot area is being used to supplement a substantial shortfall to 1B Hesford Ave's lot area[.]
And further stated:
…
Notwithstanding the abovementioned 'nesting', the cumulative lot area of 1A and 1B Hesford Ave (1,305sqm) also does not meet the required average lot area for a three lot subdivision.
Proposed 'Portion 3' does not comply with the minimum lot frontage requirements of Residential Design Codes Table 1[.]
The other referral agencies did not object to the proposed subdivision, subject to standard servicing conditions.
Planning framework
Development and Control Policy 1.1 Subdivision of Land
Development and Control Policy 1.1 (DCP 1.1) has, amongst others, the following policy objectives (which are prescribed in cl 2):
•To ensure that the subdivision of land is consistent with Statement of Planning Policy No. 1 State Planning Framework (SPP No. 1) and relevant WAPC policies and plans.
•To ensure that all lots created have regard to the provisions of the relevant local government town planning scheme.
•To ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
Clause 3.5 of DCP 1.1 states:
… For residential development, the Residential Design Codes provide guidance on the minimum and average lot sizes which the WAPC will have regard to.
Lots which cannot be developed in accordance with relevant statutory requirements will not be approved[.]
Development and Control Policy 2.2 Residential Subdivision
Clause 2 of Development and Control Policy 2.2 (DCP 2.2) provides:
…
Nested subdivision proposals involve the inclusion of two or more original/parent lots and/or minor boundary adjustments between them to achieve the average lot size requirement.
…
Nested and staged/successive subdivision proposals are not generally supported. Where proposed, the applicant must provide justification and information to demonstrate legitimacy. A determinable difference between existing and proposed new lots must be demonstrated. Inclusion of lot/s not resulting in substantial change, to satisfy policy criteria and/or to increase the total lot size/subdivision application area to comply with the required average lot size is not a legitimate purpose.
Clause 4.2.1 of DCP 2.2 provides:
The minimum and average lot size and frontage requirements of the relevant RCode form the basis for the subdivision of residential land. Lot sizes greater than the specified minimum will be considered unless, having regard for the reasons for the selection of the particular RCode and any commitments made to service infrastructure, the uneconomic use of services or under achievement of WAPC density targets would result.
DCP 2.2 provides at cl 4.2.4:
In existing residential areas, the WAPC will only consider subdivision or surveystrata applications proposing variations to lot sizes below the minimum and average site area requirements specified in RCodes Table1 or elsewhere in the R-Codes for nonbattleaxe configured lots, where the following criteria are met:
Variations to minimum and average lot size up to five per cent criteria
•The minimum lot size variation only applies to one lot in the subdivision.
•The variation reduces the area of that one lot by no more than five per cent of the minimum lot size specified in Table 1 or elsewhere in the R-Codes.
•The variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than five per cent of the average lot size specified in Table 1 or elsewhere in the RCodes.
•In considering lot size and frontage variations, the WAPC will give regard to the recommendations of the local government.
•Where a local government objects to a variation, the objection should be supported by reasons, with reference to the provisions in this policy.
•Where a local government objects to a variation and the WAPC is of the view the application should be supported, further consultation may be undertaken with the local government before the application is determined by the WAPC[.]
State Planning Policy 3.1 Residential Design Codes
Clause 5.1.1, P1.1 of State Planning Policy 3.1 Residential Design Codes (RCodes) requires development to be of the type and density indicated by the density code designated in the local planning scheme, in this case, LPS 6 which as stated earlier in respect of the subject land, is R20.
Table 1 of the RCodes prescribes the following requirements for a subdivision of an R20 lot:
a)a minimum site area per dwelling of 350m²;
b)an average site area per dwelling of 450m²; and
c)a minimum frontage of 10 metres.
Clause 5.1.1, P1.2 of the RCodes provides for circumstances where approval may be given when a variation proposed to the minimum and/or average site area is no more than 5% and states:
The [Western Australian Planning Commission] WAPC may approve the creation of a lot, survey strata lot or strata lot of a lesser minimum and/or average site area than that specified in Table 1, and the WAPC in consultation with the local government may approve the creation of a survey strata lot or strata lot for a single house or a grouped dwelling of a lesser minimum site area than that specified in Table 1 provided that the proposed variation would be no more than five per cent less in area than that specified in Table 1; and
•facilitate the protection of an environmental or heritage feature;
•facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention;
•facilitate the development of lots with separate and sufficient frontage to more than one public street;
•overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature;
•allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or
•achieve specific objectives of the local planning framework.
(Original emphasis)
City of Melville Local Planning Scheme (LPS 6)
Part 3, cl 16 of LPS 6 sets out the objectives of each zone in the Scheme. The objectives of the Residential Zone are:
•To provide for a range of housing and a choice of residential densities to meet the needs of the community.
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
•To provide for a range of non-residential uses, which are compatible with and complementary to residential development to promote sustainable residential development.
•To maintain the compatibility with the general streetscape, for all new buildings in terms of scale, height, style, materials, street alignment and design of facades.
Clause 25(1) of LPS 6 states that the RCodes are to be read as part of LPS 6.
Issues to be determined
Although the parties outlined the issues to be determined in a slightly different manner, it became clear at the hearing that there are three issues to be determined:
1)whether Lot 1 of the subject land should be included when determining the average lot size of the lots to be created by the proposed subdivision, having regard to the provisions of cl 2 of DCP 2.2;
2)if Lot 1 is excluded, whether the proposed subdivision complies with the average lot size requirements for R20 coded land, having regard to cl 5.1.1, DP 1.1 of the R-Codes, LPS 6 and DCP 1.1; and
3)if Lot 1 is included, whether the proposed subdivision meets the criteria in cl 5.1.1, P1.2, of the R-Codes for a variation to the average lot size requirements for R20 coded land.
Issue 1
Whether Lot 1 of the subject land should be included when determining the average lot size of the lots to be created by the proposed subdivision, having regard to the provisions of cl 2 of DCP 2.2
There was a stark difference of opinion between the parties as to whether Lot 1 should be included when determining the average lotsize.
This was important because if Lot 1 was not included in the calculation there would be a variation of just over 20% from the average lot size allowed and even the applicants' planner accepted that if that was the case, it was highly unlikely that subdivision would be approved due to such a large divergence.
However, if Lot 1 was included in the calculation, the variation from the average lot size is reduced to 3.3% and therefore below the 5% referred to in cl 5.1.1, P1.2 of the RCodes.
The complicating factor in determining whether Lot 1 should be included in the calculation was the fact that the lots, as they currently stand, are not green title lots but rather surveystrata and it was how the parties believed that fact impacted on the matter which raised such stark contrast in their approaches.
In simple terms, the respondent contended that the application was caught by cl 2 of DCP 2.2 in that it was a 'nested subdivision' and therefore contrary to the policy, and should not be supported.
The applicants on the other hand argued that because the surveystrata scheme was terminated, it was not caught by the nesting provisions of cl 2 of DCP 2.2 and should be considered under the provisions of cl 5.1.1 of P1.2 of the RCodes.
Respondent's contentions
In respect of this issue, the respondent in its written submissions dated 13 July 2018, stated as follows:
Lot 1 should not be included when determining average lot sizes for the purposes of the R-Codes
25.The Respondent contends that Lot 1 should not be included when determining the average lot size of the lots to be created by the Proposed Subdivision, having regard to the provisions of clause 2 of DCP 2.2.
26.The Proposed Subdivision is a 'nested subdivision' as described in clause 2 of DCP 2.2 because it includes Lot 1 for the sole purpose of increasing the average lot size of the lots to be created by the Proposed Subdivision.
27.The Proposed Subdivision does not change the existing lot size of Lot 1 (593m²). Further, the Proposed Subdivision does not change the location of the existing common boundary between Lot 1 and Lot 2 (Refer Respondent's Bundle Tab 15).
28.The effect of clause 2 of DCP 2.2 is that, when determining average lot sizes for the purpose of ascertaining compliance with the requirements of the R-Codes, an original or parent lot will only be taken into account where there is a proper basis for including the original or parent lot in the calculation.
29.Here, no change is proposed to the size or boundaries of the existing Lot 1, and thus there is no 'determinable difference' between the existing and proposed lot. In these circumstances, the Respondent contends that there is no basis for including Lot 1 when determining the average lot size of the lots to be created by the Proposed Subdivision.
30If Lot 1 is not included, the Proposed Subdivision creates two lots - proposed Lots 2 and 3 - with an average size area of 356m². This constitutes a 20.8% variation to the 450m² average lot size required for R20 coded land under Table 1, Clause 5.1.1 of the R-Codes.
In oral submissions, counsel for the respondent stated:
… the subdivision before you includes within its scope the neighbouring corner lot which is currently Survey Strata Lot 1, and the inclusion of that lot within the subdivision application is the only thing that makes this subdivision capable of approval at law[.] … In essence, we say that Survey Strata Lot 1 is completely irrelevant to the substance of the subdivision application. … The effect of that lot being included is that the average size of the three end lots three proposed lots, will be raised to 435 square metres. Now, that isn't to get it in compliance with the minimum lot size required by the R codes of 450 square metres, but it amounts to a 3.3 percent variation rather than a greater than 20percent variation. Now, this method of including an adjacent lot in a subdivision proposal in order to raise the average site area of the lots that are actually having changes affected to them, now that is specifically and expressly dealt with by the respondent's policy DC2.2 which I will take the witnesses to later, which is at tab 8 of the respondent's bundle. The policy calls this a nested subdivision and states that they are generally not to be supported. In order to be supported there must be a determinable difference between the existing lot and the proposed lot - a 'substantial' change to justify their inclusion in the average site area calculations. In this case, Survey Strata Lot 1 is not to change at all in its dimensions or in the development on it. There is to be no change to it. And we understand that the applicant says that that Survey strata Lot 1 has to be included because what is intended to be done is to terminate the Survey Strata Scheme and you need to include all of the lots in the Survey Strata Plan in order to do that.
(ts 8 and 9, 14 December 2018)
Applicants' contentions
The applicants on the other hand in their written submissions dated 11 October 2018 submitted:
26.The Applicant contends that the subdivision of the Subject Land is not a 'nested' subdivision, because the inclusion of Strata Lot 1 was not for the sole or dominant purpose of increasing the average lot size of the proposed subdivision.
27.The inclusion of Lot 1 within the application area is necessitated by the fact that the creation of three green title lots can only occur after the termination by the Registrar of Titles of the existing survey-strata scheme, pursuant to section 3OA the Strata Titles Act 1985 ('ST Act').
28.The Termination of an existing survey-strata scheme cannot be acted upon by the Registrar unless with:
a)the unanimous resolution of all proprietors, and
b)the consent of the Respondent,
in accordance with section 3OA of the ST Act.
29.To give technical effect to the green title subdivision of the Subject Land, the survey- strata scheme must first be cancelled, which temporarily reverts Lot 1 and 2 to a single landholding. Therefore, when considering a green title subdivision of strata property, the correct and only approach in this case is to consider the whole of the original land in the survey-strata scheme as a single lot being subdivided into three lots.
30Therefore, irrespective of any proposed change to the boundaries of Lot 1, the land in Lot 1 must, as a matter of law, be included within the application area to conform with the requirements of:
a)section 135 of the Planning and Development Act 2005 (the 'PD Act'), which provides that a person is not to subdivide any lot, or amalgamate any lot without the approval of the Commission;
b)regulation 20(a) of the Planning and Development Regulations 2009 (the 'PD Regulations') which requires an application to be in the approved form;
c)Form 1A prepared by the Respondent under regulation 20(a), which requires the consent of all landowners;
d)regulation 20(b) of the PD Regulations, which requires a plan to clearly illustrate the proposed subdivision.
31.The requirements of the PD Act, the PD Regulations and the Respondent's approved form necessitate the inclusion of Lot 1, as well as the consent of that landowner, as the whole of the title underlying the current survey-strata scheme is being subdivided as part of the Proposed Subdivision.
32.Notwithstanding the contentions set out below in paragraphs 35 - 53 … regarding the calculation of average lot size, on a literal interpretation of the requirements of DC 2.2, Lot 1 has been legitimately included within the application area, therefore the subdivision is not a 'nested' subdivision for the purposes of that policy.
In oral submissions, counsel for the applicants stated:
… Firstly, the definition of nesting doesn't involve the inclusion of one parent lot, it involves the inclusion of two or more original or parent lots. Well, the original parent lot that is left after termination of the survey strata scheme is just one lot. So the misunderstanding or the misconstruction of this is then made even clearer when one looks at the example that has been given directly below that paragraph. You can see that what this policy is directed to is staged or successive subdivision proposals - involve the creation of one minimum sized lot under separate subdivision applications in order to obtain increased lot yield. You see what it's talking about here is not allowing the original parent lot to remain. What it's concerned about is the subdivision of the original lot into two lots. One is the small lot and then the balance lot. And then a further subdivision of the balance lot into another small lot with a second balance lot. And then a subdivision of the second balance lot into a small lot with a third balance lot. You can see what they're complaining there. In each of those cases there is no original lot left. There is no Lot 20 because Lot 20 would have been carved up. But here we have a Lot 20. It hasn't been carved up. The problem that the respondent has when it has approached this is conflating a survey strata lot with a parent lot. A survey strata lot is a completely different animal to a parent lot or original lot, that is the subject of this policy. And one could see then that when we talk in the third paragraph, adeterminable difference between existing and proposed new lots well, the existing lot is Lot 120 and there is no lot that is an existing lot that encompasses what has been a terminated survey strata plan on the lot overlaying the lot[.]
…
… Well, the example of the staged subdivision is how you arrive at the nesting. That's because once you do your successive subdivisions, if you go back and then start including some of the old lots that you've just subdivided, that's nesting. And, so what the example gives is how by staged subdivision proposals, if you then incorporate lots that you had already cut off, you are nesting. So that to me, that's what they're explaining is how staged or success subdivision can result in nesting if you then try ad include into your calculations what you've cut off previously.
[TRIBUNAL:] And explain then why you use the word and in the report.
Well, because I think nesting is the pejorative term for someone who has done this deliberately to get around the problem because staged or successive subdivisions aren't in any way a problem unless you start trying to include what you've previously cut off.
…
- - - cuts stages that you've already cut off. So what I'm saying here is that's completely different here. We're not doing that at all. What we are doing is transferring or converting land which is currently subject of the Strata Titles Act into land which is under the Titles Act and open to be developed under the Planning and Development Act without the constraints that are imposed by the Strata Titles Act by the issue of green titles, and this is the only way it can be done.
(ts 24 27, 14 December 2018)
Consideration of Issue 1
A clear point of difference between the parties was what actual steps were involved in moving from a two lot surveystrata through a subdivision process and ending, in this case with three freehold lots.
This difference was crucial to understanding whether the application was a 'nested' subdivision as described in DCP 2.2 making the average lot size more than 20% above the average allowed, and having little chance of being approved or, gaining the benefit of having Lot 1 included in the calculation which brought the lot size to within 3.3% of the average and therefore capable of consideration under cl 5.1.1 P1.2 of the RCodes.
Under the heading 'Introduction', cl 2 of DCP 2.2 states:
Historical lot size differences and application of contemporary RCodings results in some lots not aligning with allocated R-Code minimum and average lot sizes. Lot size variation under this policy is intended to facilitate flexibility to complete subdivision of these lots as intended under the local planning framework.
The policy is not to be used to circumvent the R-Coding of land to facilitate subdivision and increased density not intended under local planning frameworks.
Nested subdivision proposals involve the inclusion of two or more original/parent lots and/or minor boundary adjustments between them to achieve the average lot size requirement.
Staged or successive subdivision proposals involve the creation of one minimum sized lot under separate subdivision applications in order to obtain increased lot yield. …
Nested and staged/successive subdivision proposals are not generally supported. Where proposed, the applicant must provide justification and information to demonstrate legitimacy. A determinable difference between existing and proposed new lots must be demonstrated. Inclusion of lot/s not resulting in substantial change, to satisfy policy criteria and/or to increase the total lot size/subdivision application area to comply with the required average lot size is not a legitimate purpose.
In respect of those provisions as set out earlier, the respondent contended:
26.The Proposed Subdivision is a 'nested subdivision' as described in clause 2 of DCP 2.2 because it includes Lot 1 for the sole purpose of increasing the average lot size of the lots to be created by the Proposed Subdivision.
…
29.Here, no change is proposed to the size or boundaries of the existing Lot 1, and thus there is no 'determinable difference' between the existing and proposed lot. In these circumstances, the Respondent contends that there is no basis for including Lot1 when determining the average lot size of the lots to be created by the Proposed Subdivision.
Whereas the applicants contended:
26.… the subdivision of the Subject Land is not a 'nested' subdivision, because the inclusion of Strata Lot 1 was not for the sole or dominant purpose of increasing the average lot size of the proposed subdivision.
27.The inclusion of Lot 1 within the application area is necessitated by the fact that the creation of three green title lots can only occur after the termination by the Registrar of Titles of the existing survey-strata scheme, pursuant to section 3OA the Strata Titles Act 1985 ('ST Act').
28.The Termination of an existing survey-strata scheme cannot be acted upon by the Registrar unless with:
a)the unanimous resolution of all proprietors, and
b)the consent of the Respondent,
in accordance with section 3OA of the ST Act.
29.To give technical effect to the green title subdivision of the Subject Land, the survey- strata scheme must first be cancelled, which temporarily reverts Lot 1 and 2 to a single landholding. Therefore, when considering a green title subdivision of strata property, the correct and only approach in this case is to consider the whole of the original land in the survey-strata scheme as a single lot being subdivided into three lots.
The Tribunal and indeed the parties recognised that lots within a surveystrata scheme may be resubdivided pursuant to s 8(1) of the Strata Titles Act 1995 (WA) (ST Act) which states:
Lots or common property, or lots and common property, may be resubdivided by the registration of a plan under and in the manner provided by this Act as a plan of resubdivision.
However, it is acknowledged that in doing that, one is still left subject to a strata scheme, whereas, in the present case, one of the applicants' goals was to terminate the surveystrata scheme and convert the proposed lots to green title. In those circumstances, s 8(1) of the ST Act is not relevant to the present matter.
What is critical to a determination of the present matter is the process of registration that land goes through when a surveystrata scheme is terminated.
For that reason, the applicants called Mr John Higham, a licensed surveyor under the Licensed Surveyors Act 1909 (WA), as a witness.
Mr Higham gave evidence that he had prepared numerous applications to the respondent for the subdivision of built or surveystrata lots into green title lots and at paras 10 and 11 of his statement of evidence stated:
Presently, Lot 120 is subdivided into two survey-strata lots, known as Lots 1 and 2 on Survey Strata Plan 3104.
The registered proprietors of SurveyStrata Lots 1 and 2 on SurveyStrata Plan 3104 have mutually agreed to cancel SurveyStrata Plan 3104, and further subdivide underlying Lot 120.
Attached to his statement of evidence Mr Higham helpfully attached a copy of Pt 21.6 of the Strata Titles Practice Manual for Western Australia Version 9.0 April 2016 (Strata Titles Practice Manual), headed 'Termination of a SurveyStrata Scheme', which states:
Where it is intended to convert SurveyStrata Lots to Freehold Lots by termination a Form 15 is registered together with a certificate by the WAPC consenting to termination. This is a rare occurrence, however the process must be supported by a Deposited Plan with the purpose of 'Conversion' and signed by a Licensed Surveyor eligible to lodge plans at Landgate.
…
In most cases it is intended to terminate a SurveyStrata Scheme and proceed with a new development or convert the Lots in the Scheme back to what was the original parcel[.] (Tribunal emphasis)
That reference to 'original parcel' is, in the present case, important.
Section 30A of the ST Act headed 'Termination of surveystrata scheme by unanimous resolution' states:
(1)The proprietors of lots in a survey strata scheme may resolve by unanimous resolution that the scheme be terminated in accordance with this section.
(2)Upon the passing of such a resolution the strata company shall immediately lodge
(a)notice of the resolution with the Registrar of Titles in the prescribed form; and
(b)except in a case where the regulations confer an exemption from the requirement of this paragraph, a certificate given by the Commission stating that it consents to the termination of the scheme[.]
DCP 2.2, which the respondent relies on in respect of nested subdivisions not being supported, is a planning policy which sets out the WAPC's requirements for the subdivision of land into residential lots. However, it must read together with the relevant legislation.
As set out earlier, a 'nested subdivision' is described in DCP 2.2 as follows:
Nested subdivision proposals involve the inclusion of two or more original/parent lots and/or minor boundary adjustments between them to achieve the average lot size requirement. (Tribunal emphasis)
Noting that the Strata Titles Practice Manual itself recognises the converting of surveystrata lots back to freehold lots by termination as a 'rare occurrence', one must look at the initial creation of the surveystrata lots to see what the 'original parcel' referred to in the Strata Titles Practice Manual was and whether, when it reverts back to that 'original parcel' on termination, that circumstance is caught by the nesting provisions.
Section 4(1) of the ST Act under Pt II headed 'Strata schemes and surveystrata schemes' states:
Land may be subdivided into lots, or lots and common property, by the registration of a strata plan or a surveystrata plan.
Section 4(4) of the ST Act under Pt II then states:
Where a strata/survey strata plan is registered under this Act, a memorial shall be entered on the certificate of title relating to the parcel and thereupon the Registrar of Titles may create and register a separate certificate of title for each lot together with the share of common property appurtenant to that lot.
'Parcel' is defined under s 3 of the ST Act to mean 'the land comprised in a strata/surveystrata plan'.
As outlined earlier under the history of the site, in 1975 a built strata was created over Lot 120, which divided the existing dwelling at that time into two separately titled dwelling units and in February 1998, that built strata was converted into a surveystrata scheme.
It is clear from that history therefore that Lot 120 was the underlying 'original parcel' of land over which the built strata was created in 1975 and which was later converted to a surveystrata in 1998.
When the mechanics of termination of the surveystrata take place as per s 30A of the ST Act the surveystrata plan is removed and the land reverts to the original parcel, in this case, green title Lot 120 which it originally was, before being immediately resubdivided into whatever new subdivided green title lots have been approved.
This stepbystep operation of the ST Act and its consequences appears to have been recognised by the respondent in its closing submissions dated 11 March 2019 at para 39 when it stated:
The fact that, as a matter of law, the landowners of current surveystrata lots 1 and 2 may (depending on the resolution of the survey strata termination issue) instantaneously and momentarily find themselves as co-owners of the entire parcel in the course of Landgate processing a combined termination and subdivision should not have the effect of ousting the nested subdivision provisions that would otherwise be clearly applicable.
However, as it stated in DCP 2.2 outlined earlier:
Nested subdivision proposals involve the inclusion of two or more original/parent lots and/or minor boundary adjustments between them to achieve the average lot size requirement. (Tribunal emphasis)
That will not be the position in the present case as there will only be one original/parent lot on the termination of the surveystrata scheme, being Lot 120.
The Tribunal fully recognises the intention of DCP 2.2 and the mischief it is attempting to prevent. However, this is a rare occurrence as recognised by Landgate in its practice manual and a 'policy' which DCP 2.2. is, cannot override the operation of specific legislation.
Further, when the respondent was asked during hearing to identify other comparable landholdings which could benefit in the same way or for which this matter could act as a precedent, the respondent was unable to point to even one.
The critical albeit a moment in time when the surveystrata scheme is terminated and the original parcel, being Lot 120, is in effect, resurrected before again being resubdivided cannot therefore in the Tribunal's view be ignored.
Further support for such an interpretation can be found in Crugnale and Commissioner of State Revenue [2019] WASAT 8, where the Tribunal in dealing with dutiable transactions under the Duties Act 2008 (WA), found that the termination of an original strata scheme and the resultant 'acquisition' of a lot in fee simple was a dutiable transaction.
In the circumstances, although the Tribunal accepts that the proposed subdivision does not change the existing lot size of Lot 1 (being 593m²), nor the existing common boundary between Lots 1 and 2, and no determinable difference will occur in respect of Lot 1, the applicants are, in the Tribunal's view, entitled to get the benefit (in the unique circumstances they finds themselves in) of the inclusion of the area of Lot 1 in the calculations to determine the average lot size.
Therefore, the Tribunal finds that the applicants are not caught by the nesting provisions of DCP 2.2 and that the area of Lot 1 can be included when calculating the average lot size of the lots to be created by the proposed subdivision.
Issue 2
If Lot 1 is excluded, whether the proposed subdivision complies with the average lot size requirements for R20 coded land, having regard to cl 5.1.1, DP 1.1 of the RCodes, LPS 6 and DCP 1.1
As the Tribunal has found that in circumstances of the present case, Lot 1 can be included in the calculation, there is no need to consider this issue further as it was only relevant if Lot 1 was excluded.
Issue 3
If Lot 1 is included, whether the proposed subdivision meets the criteria in cl 5.1.1, P1.2, of the R-Codes for a variation to the average lot size requirements for R20 coded land
As outlined earlier, even when Lot 1 is included in the calculation of average lot size, it still represents a 3.3% shortfall from the required average of 450m² for R20 coded land and therefore the exercise of discretion is required. It is to that consideration the Tribunal must now turn.
Respondent's contentions
In its statement of issues facts and contentions (SIFC) the respondent stated:
If, contrary to the Respondent's contentions … Lot 1 is taken into account, the Proposed Subdivision would result in an average lot size of 435m².
That represents a 3.3% shortfall from the required average lot size of 450m2 for R20-coded land.
Whilst such a variation from the average lot size may be approved in certain circumstances (see clause 5.1.1, PI.2 of the R-Codes (see paragraph 20 above), the Respondent contends the Proposed Subdivision does not meet any of the criteria for variation of the average lot size specified approval set out in PI. 2 of clause 5.1.1 of the R-Codes.
In its closing written submissions dated 11 March 2019, the respondent further stated:
51.Even if the subject land is not considered 'nested', a 3.3% variation is required. The subject land does not meet any of the criteria warranting a variation of this amount, set out in Clause 5.1.1, P 1.2 of the R-Codes.
52.That is, the subject land does not achieve any of the following:
•facilitate the protection of an environmental or heritage feature;
•facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention;
•facilitate the development of lots with separate and sufficient frontage to more than one public street;
•overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature;
•allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or
•achieve specific objectives of the local planning framework.
The respondent then went on to refer to each of those six points stating:
53.The first two bullet points are not relevant.
54.In relation to the third bullet point, although Lot 120 has separate frontage to two public streets, the Proposed Subdivision would not 'facilitate the development of lots' with separate and sufficient frontage. This is because Lot 1 is already developed, and proposed Lots 2 and 3 would only have single street frontage. Mr Webb agreed with this point in oral evidence.
55.This is expressly a more specific criterion than the mere creation of lots with separate and sufficient street frontage. The R-Codes require the facilitation of development with separate frontages.
56.Regarding the fourth bullet point, there is no 'special or unusual limitation' applicable.
57.The fifth bullet point is not applicable for the reasons expressed by Mr Chivell at paragraphs [64]-[70] of his Witness Statement.
58.The sixth bullet point is not applicable, because the proposed subdivision does not achieve any specific objectives of the local planning framework. To the extent that policy and the local planning framework encourage infill and densification within the City of Melville, that aim is to be achieved through densification beyond R20 in specific areas that do not include the subject land: see Witness Statement of Mr Chivell at [35].
59.The Respondent submits that even if the Applicants only require a 3.3% variation to the average lot size, they require the Tribunal to depart from policy to do so. The Respondent submits that there is no cogent reason why the principles set out in the R-Codes are not applicable to the Proposed Subdivision, and so Tribunal should not depart from this State Planning Policy in this case.
Applicants' contentions
The applicants in dealing with the criterion outlined in P1.2 of cl 5.1.1 of the RCodes, relied on three of the six criteria outlined and stated at para 37 of their SIFC:
… the subdivision meets the following conditional tests set out in Clause 5.1.1:
a)facilitating the development of lots with separate and sufficient frontage to more than one public street;
b)allowing land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed;
c)achieving specific objectives of the local planning framework, by providing a greater variety of lot sizes within the area to assist in meeting residential density targets.
Consideration of Issue 3
As referred to by both parties, the relevant criteria to be applied in deciding whether to approve a lesser average lot size are set out at cl 5.1.1 P1.2 of the RCodes which states:
The WAPC may approve the creation of a lot … of a lesser … average site area than that specified in Table 1 … provided that the proposed variation would be no more than five per cent less in area … and
•facilitate the protection of an environmental or heritage feature;
•facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention;
•facilitate the development of lots with separate and sufficient frontage to more than one public street;
•overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature;
•allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or
•achieve specific objectives of the local planning framework.
As just outlined, the applicants identified three of the six criteria in cl 5.1.1 P1.2 of the RCodes as being relevant in the present case. The Tribunal agrees with that assessment and will deal in turn with each of those three criteria, being:
a)facilitating the development of lots with separate and sufficient frontage to more than one public street;
b)allowing land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed;
c)achieving specific objectives of the local planning framework, by providing a greater variety of lot sizes within the area to assist in meeting residential density targets.
Planning evidence on behalf of the applicants was given by Mr Peter Webb, who filed a witness statement dated 3 December 2018 and gave oral evidence at the hearing.
The respondent's planning evidence was given by Mr Gareth Chivell, who also filed a written statement dated 3 December 2018 and who also gave oral evidence.
Turning then to the three relevant criteria identified and relied on by the applicants.
a) Does the proposed subdivision 'facilitate the development of lots with separate and sufficient frontage to more than one public street?
Although Mr Walter Gooding, the owner of the current survey Lot 2 did not prepare and file a statement of evidence, he did give brief oral evidence at the start of the hearing following the site visit and in answer to a question from the Tribunal as to the purpose of the application, Mr Gooding confirmed 'It was R25 … and I bought it to build two houses on it for my grandsons'.
It is also clear from all of the evidence before the Tribunal and not disputed by the parties, that although the application included both strata Lots 1 and 2, which was a requirement for the purpose of terminating the surveystrata scheme, in fact the proposed physical subdivision was occurring entirely over the area of land covered by surveystrata Lot 2 and no physical change was planned in respect of surveystrata Lot 1 although its title would become freehold.
It was in light of that factual situation, that the respondent's counsel questioned the applicants' planner, Mr Webb in respect of whether the proposed subdivision would 'facilitate the development of lots with separate and sufficient frontage to more than one public street'?
In respect of 'separate frontages', the following exchange took place:
WITNESS, WEBB: I am aware of that policy, yes. And one of the important elements in this application that's before the [T]ribunal at the moment, of course, is the fact that this is a corner lot.
REPPER, MR: Now, it's only a corner lot if survey strata lot 1 is included in - - -
WITNESS, WEBB: Which it is, of course, in our application.
REPPER, MR: Yes. So it's in - it is technically - is actually included within the application area.
WITNESS, WEBB: Yes, it is.
REPPER, MR: And it doesn't - and I take it by 'corner lot' you're there referring to the third bullet point which says: Facilitate the development of lots with separate and sufficient frontage to more than one public street. Is that correct?
WITNESS, WEBB: Yes.
REPPER, MR: Yes. This subdivision won't facilitate the development of lots facing Curruthers Street, will it That's already developed.
WITNESS, WEBB: You mean the large corner lot?
REPPER, MR: Yes.
WITNESS, WEBB: Yes, it is already developed. Correct.
REPPER, MR: And this subdivision doesn't in any way facilitate the further development of that lot
WITNESS, WEBB: Not at the moment, no.
REPPER, MR: And the boundaries of that corner lot don't change?
WITNESS, WEBB: Not at the moment, no.
REPPER, MR: Not under this application?
WITNESS, WEBB: Not under this application.
REPPER, MR: This subdivision only facilitates the development of lots facing the other street, doesn't it, the - which is Hesford Ave.
WITNESS, WEBB: Yes.
REPPER, MR: And it facilitates two side-by-side - - -
WITNESS, WEBB: Correct.
REPPER, MR: - - - the development of two side-by-side lots there. So it doesn't tick that third bullet point.
WITNESS, WEBB: Well, it generally does, we say.
REPPER, MR: You just accepted that it only facilitates development of two side-by-side lots on Hesford Street.
WITNESS, WEBB: Facilitate the development of lots with separate - so the - the whole sentence is meant to be taken into context, so that's what I'm looking at.
REPPER, MR: Okay. Do you accept that it only facilitates the development of two side-by-side lots facing Hesford Street.
WITNESS, WEBB: The three lots need to be taken into consideration all together, in my view[.]
(ts 70 72, 14 December 2018)
In respect of the issue of 'sufficient frontage', Mr Webb at para 52 of his witness statement dealt with the issue by stating:
The Respondent has identified at paragraph 9 of its SIFC that Proposed Lot 2 has a frontage of approximately 9.2 meters at its street setback line. This is not depicted on the Application Plan at page 4 of the Bundle, however I concur with the Respondent's assessment of the frontage of Proposed Lot 2.
At para 54 Mr Webb stated:
The purpose of setting minimum lot frontage is to ensure that amenity and function of the streetscape is maintained, with adequate room for garages and driveways. Minimum frontages ensure that the landscape is not overwhelmed by garaged doors, and assists in maintaining pedestrian and driver safety with adequate space between driveways.
Mr Webb then went on to explain that in his view, there were no planning reasons to refuse a minor variation to the lot frontage and explained that it could be remedied by a minor boundary adjustment.
At para 56 of his witness statement Mr Webb further stated:
Alternatively, the Applicant has provided an alternative plan as Annexure A to its SIFC (Alternative Plan). The Alternative Plan differs slightly from the Application Plan in that it positions the proposed eastern side boundary of Proposed Lot 2 to align with the eastern face of the existing boundary fence, and modifies the boundary between Proposed Lot 2 and Proposed Lot 3. If the Tribunal determines that a reduced lot frontage is not appropriate, the Alternative Plan may be adopted by way of appropriately conditioning any approval.
Mr Chivell, who gave planning evidence on behalf of the respondent, dealt with lot frontages at para 62(c) of his witness statement, stating:
The proposal does not comply with the minimum frontage requirements under Table 1 of the RCodes (10 metres required, 9m and 9.92m proposed). The frontage implications are elaborated on in points 67 and 68 below. Furthermore, the proposal does not facilitate development of lots with sufficient frontage to more than one street. Rather Survey Strata Lot 1 maintains its frontage to Curruthers Road whilst Survey Strata Lot 2 is developed, intensifying its single frontage onto Hesford Avenue[.]
In paragraphs 67 and 68 of Mr Chivell's evidence referred to in para 62(c) above, Mr Chivell dealt in some detail with other subdivision examples in the area and the issue of lot frontages.
The Tribunal prefers Mr Chivell's evidence in respect of this issue as against that of Mr Webb.
Consideration of a proposed subdivision application against the criteria is not simply a mathematical exercise and in the Tribunal's view, particularly in respect of the criterion under consideration, the physical changes proposed are important.
This is reinforced from reading the criterion itself which states 'facilitating the development of lots'.
'Development' is defined in the RCodes to be the same as 'development' under the PD Act which states:
development means the development or use of any land, including
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building[.]
No physical change or development of any type is proposed in respect of Lot 1. The residence recently built is to remain, the area is to remain the same, the boundaries are to remain the same and Lot 1's frontage which is already on Curruthers Road is to remain. Only the type of title is to change.
The only physical development being facilitated by the current subdivision application is the division of Mr Gooding's lot, being the current surveystrata Lot 2, into two separate lots both of which would have their frontage to Hesford Avenue. All of the proposed development is take place over Lot 2 and it is to that to which the criterion should be applied.
The Tribunal's view in this regard is reinforced by the comments of Chaney J as he then was in SinAusBel v Western Australian Planning Commission (2006) 45 SR (WA) 67 at [43] [46] when dealing with what an approving authority was entitled to consider when imposing conditions on a subdivision approval, when he stated:
Although the present application is not one of a series of subdivisions of a larger parcel of land, an analogous principle applies. It is appropriate for an application for subdivision to be seen in its context. The applicant's submissions cited a passage referred to by Callinan J in Western Australian Planning Commission v Temwood Holdings Pty Ltd from the judgment of Gibbs CJ (with whom Mason, Wilson, Brennan and Dawson JJ agreed) in King Ranch Australia Pty Ltd v Cardwell Shire Council (1983) 9 APA 1 where His Honour observed:
' … the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce - for example, in such a case as the present, the increased use of the road and of the bridge - and to impose such conditions as appear to be reasonably required in those circumstances.'
Adopting that approach, it is, in my view, appropriate to have regard to 'the changes that the subdivision is likely to produce', not by looking no further than the creation of new lot boundaries, but by looking at the proposal in its full context.
In Marford Nominees Pty Ltd v State Planning Commission (unreported, Supreme Court, WA, Murray J, No 1039 of 1995, 1 February 1996) Murray J said that:
'in deciding whether to [approve] the subdivision unconditionally or subject to conditions, the Tribunal was entitled to consider the purpose of the subdivision and the nature of the use and development of the land which the appellant proposed if the subdivision was approved. In that regard it was obliged to consider the nature of the appellant's proposals and what impact they might have upon the local amenity in all its aspects, having regard to all relevant town planning consideration.'
The applicant argued that the facts in Marford differed from the present case in that the final form of the development was more progressed in Marford. That may be true to some extent, but the distinction does not alter the principle that it is appropriate and desirable, if not obligatory, for the approving authority to consider a subdivision application in the context of the likely future use of the land[.]
While recognising that His Honour was looking specifically at the imposition of conditions in that matter, this Tribunal is satisfied that the statements by His Honour that:
[I]t is, in my view, appropriate to have regard to 'the changes that the subdivision is likely to produce', not by looking no further than the creation of new lot boundaries, but by looking at the proposal in its full context' is an applicable and reasonable consideration in the present case.
And that:
[I]t is appropriate and desirable, if not obligatory, for the approving authority to consider a subdivision application in the context of the likely future use of the land[.]
are also applicable and reasonable considerations relevant to the present case.
In the circumstances, to claim that, due to the surveystrata termination and the change in title, the subdivision application under consideration, which only seeks to make physical changes to Lot 2, with both proposed lots fronting Hesford Avenue, should be seen from a planning perspective, to be 'facilitating the development of lots with separate and sufficient frontage to more than one public street', is in the Tribunal's view, stretching that criterion too far.
This subdivision, if approved, will only facilitate the 'development' of 'two new lots' both of which will front Hesford Avenue.
The Tribunal therefore finds that from a planning perspective the proposed subdivision does not facilitate the development of lots with separate and sufficient frontage to more than one public street and therefore the criterion under consideration is not met.
b) allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed
Mr Webb also dealt with this matter in the following exchange with the Tribunal and counsel for the respondent:
[TRIBUNAL]: Now, just - yes, sorry. I (indistinct) the second one is - the second last is: Allow land to be developed with housing of the same type and form as land in the vicinity, and which would not otherwise be able to be developed.
WITNESS, WEBB: That's one of our most important points, sir. Thank you. Yes.
…
WITNESS, WEBB: The second last point is the most important one, sir. I wasn't asked a question specifically about that. I just was required to answer the questions I thought that were - were put of me.
[TRIBUNAL]: No, no. That's all right. I - - -
WITNESS, WEBB: But you're absolutely right. This - this subdivision, approved, would allow the redevelopment of that site, which currently has a - a house of very questionable quality on it, which is vacant at the moment. And approval of this subdivision would facilitate the development of those two lots in a manner which is far more consistent with the residential amenity of the area, generally speaking, at the moment, as viewed by our site inspection this morning, sir.
[TRIBUNAL]: Well, if it wasn't subdivided, it would allow the land to be developed with housing of the same type and form as land in the vicinity. I'm puzzled with where you're getting the (indistinct) "and which would not otherwise be able to be developed". It would be able to be developed; it's just with one house rather than two.
WITNESS, WEBB: Correct.
[TRIBUNAL]: How do you tick that box That's - I'm just puzzled. That's why.
WITNESS, WEBB: Yes. Yes. I can - I can see that, sir. By facilitating the subdivision of course would facilitate the redevelopment of that site. There's nothing at the moment that would encourage the redevelopment of that site with that single house on it.
[TRIBUNAL]: Except putting another single house on it - bigger and better.
WITNESS, WEBB: Well, and the economics of that might be prohibitive. It's a - it's a - a - a singularly large block, and to try and create a - a - a residence to fit on that whole block, I - I would question whether that was - whether that was economic.
[TRIBUNAL]: Just bear with me. What square meterage is it
WITNESS, WEBB: Which one, sir? The - - -
…………......., MR: 713.
…
REPPER, MR: And there are - the lot right next to it, that's included within the subdivision application, so there's strata lot 1 on the corner, that's had a big house built on it, what, only two years ago, I think. We saw it this morning.
WITNESS, WEBB: Yes. And that's lot five hundred and - - -
REPPER, MR: So that's nearly 600 square metres. This one is 712 square metres. And you're saying that it currently has, I think, an extremely dated dwelling which is hard - which is not consistent with current architectural trends. I think that's what you say.
WITNESS, WEBB: Absolutely.
REPPER, MR: And yet it's next door to a 600 square metre lot that has recently been developed - redeveloped, I should say - with a big new house on it. And you're saying that this 700 square metre lot in Mount Pleasant is - will not feasibly be redeveloped other than if it's subdivided
WITNESS, WEBB: Certainly, in the short- to medium-term, yes.
REPPER, MR: I find that very difficult to believe, Mr Webb. Is that - - -
WITNESS, WEBB: Let me clarify that for you. The owner has owned this parcel of land since 1991. So we're talking nearly 30 years ago, and he hasn't been inclined to redevelop that, and is unlikely to be inclined to redevelop it in the short- to medium-term, as I've advised.
REPPER, MR: He could sell it.
WITNESS, WEBB: What if he doesn't want to
REPPER, MR: Well, the present owner's intentions aren't relevant to a planning assessment of a subdivision application, are they
WITNESS, WEBB: I'm simply providing a response to your query, or your suggestion, that it's capable of being redeveloped. I'm saying that only if the owner was inclined to do so.
REPPER, MR: You're saying that the reason why it's currently not capable of being redeveloped is because the present owner is not inclined to do so
WITNESS, WEBB: I'm not saying it's not inclined to be; it's unlikely to be. That's what I'm saying.
REPPER, MR: Okay. The reason why - just to get this clear - the reason why it is not presently likely to be developed in its current form is because the present owner is not likely to be inclined to do so
WITNESS, WEBB: Not inclined to do so. Correct[.]
(ts 72 75, 14 December 2018)
Immediately following that exchange with Mr Webb, counsel for the respondent put the same issue of developability of the lot to Mr Chivell asking:
Mr Chivell, do you have a view on the developability of this lot in its current state
And Mr Chivell stated:
I would suggest that it's - it is developable. Again, there are a number of lots within that area that are of a very similar size, new dwellings of a similar size … So, personally, I don't think that there's any issue in developing that site for a single - single dwelling.
The Tribunal agrees with Mr Chivell in this regard and again prefers his evidence in respect of this issue over that of Mr Webb.
The criterion under consideration is whether the proposed subdivision 'allows land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed' (Tribunal emphasis).
Mr Gooding's evidence and indeed, confirmed to some extent by Mr Webb, is that the reason driving the current subdivision application is principally Mr Gooding's wish to build two houses.
The desire of the owner to subdivide his or her block does not, in the Tribunal's view, qualify as 'allow[ing] land to be developed with housing of the same type and form as land in the vicinity which would not otherwise be able to be developed' (Tribunal emphasis).
This land can be developed or redeveloped however, with one house rather than two.
Both Mr Gooding and Mr Webb placed a lot of emphasis on a three lot residential subdivision which had been approved at Lot 341 Hesford Avenue, the same street on to which Mr Gooding's lot fronts.
At the site visit Mr Gooding brought the parties to that particular site on the corner of Hesford Avenue and Parkside Avenue and Mr Webb at paras 27 and 28 of his witness statement stated:
Furthermore, many older homes are being demolished in the locality of the subject site to allow for both redevelopment (with modern new homes) and closer subdivision.
I make particular reference to the recent subdivision of the land located on the northeast corner of Hesford Avenue and Parkside Avenue, formerly Lot 341 on Plan 5032 of 1098m² and now further subdivided into three lots with an average lot size of 366m²[.]
The respondent furnished the Tribunal with a copy of the approval relevant to that subdivision at Tab 2 of the respondent's supplementary s 24 bundle dated 15 November 2018 and it is noted that that application involved the subdivision of an existing single lot of 1098m² into three lots. Although it did comply with the minimum lot requirement like the present application, it did not comply with the average lot size requirement.
That proposal was assessed against the 'Interim Planning Practice' which was in effect for 12 months from December 2015 but is no longer in place.
The officer's report in that matter at page 7, commenting on the streetscape, stated:
In regard to streetscape, this is already somewhat fragmented in the immediate vicinity, and the change to the streetscape will be minimal. The proposal shall have an acceptable level of impact on the streetscape as it is a corner and due to the wide width of the proposed lots. Lot 72 will have a 11.13m frontage while Lot 71 has a 12.05m frontage while Lot 70 has a 13.21m frontage to the Hesford Avenue and 16.56m to Parkside Avenue. These frontages are not too dissimilar to adjacent properties[.]
The same cannot be said for the current application with both the proposed new lots having frontage of slightly less than 10 metres and if the alternative proposal/plan is accepted, the frontages would increase to just on 10 metres.
Mr Chivell was brought to that application in his evidence and commented:
There was an underlying parent lots and was subject to the interim practice at the time, which has now been formalised due to DC Policy for corner lots[.]
(ts 91, 14 December 2019)
Later, in reexamination by his own counsel Mr Chivell was asked:
REPPER, MR: … That subdivision of the corner of Hesford and Parkside Avenue I understand was one lot into 3; is that correct?
WITNESS, CHIVELL: That's correct, yes.
(ts 91 92, 14 December 2018)
The Tribunal can understand that, in that particular subdivision, with all of the lot physically involved in the subdivision and it being a corner lot, it could meet the requirement of criterion (a) discussed earlier in that it 'facilitated the development of lots with separate and sufficient frontage to more than one public street'. However, as the Tribunal has found earlier, the same cannot be said of the present application.
Lot 2 as it currently stands is capable of being developed, albeit with one dwelling rather than two, and the approved subdivision referred to and relied on by the applicants, had, in the Tribunal's view, very different characteristics.
On the evidence before it therefore the Tribunal finds that the proposed subdivision does not meet the criteria of 'allow[ing] land to be developed with housing of the same type and form as land in the vicinity which would not otherwise be able to be developed'.
c) achieving specific objectives of the local planning framework by providing a greater variety of lot sizes within the area to assist in meeting residential density targets
Both Mr Webb and Mr Chivell addressed this matter in their witness statements.
Mr Webb at para 34 of his statement of evidence stated:
Clause 25(1) of LPS 6 states that the RCodes are to be read as part of LPS 6.
And at para 35 stated:
In my opinion, the proposed subdivision is consistent with the purpose and intent of the residential zone … for the following reasons:
Diversity of housing choice
a.The subdivision of the subject land will facilitate in providing a greater diversity and housing choice for residents, by creating lots that are more consistent with contemporary planning practice.
…
Facilitate and encourage high quality design, build form and streetscapes
d.Refusal of the proposed subdivision will likely result in the retention of the existing dwelling[.]
e.The subdivision of the subject land will ensure the demolition of the 'tired' and outdated building currently occupying Strata Lot 2.
…
Maintain compatibility with general streetscape
…
h.It is clear from an inspection of the subject land and its surrounds that new dwellings with modern architecture are being constructed as existing ¼ acre blocks are subdivided and new lots created.
i.Several older dwellings have been renovated by rendering the facade or building a second storey.
j.The older dwellings are rapidly becoming the 'outliers', detracting from the general streetscape, as is the case with the dwelling on existing Strata Lot 2.
k.The proposed subdivision will allow for the construction of two new dwellings that meet current architectural and development standards, consistent with the transition that is occurring in this locality.
Mr Chivell, under the heading 'Impacts on the Amenity of the Streetscape', stated at paras 65 69:
… the street block and surrounding locality is characterised by larger frontages, which are complemented by extensive verges. The streetscape is subsequently characterised by established street trees throughout, wellmanicured gardens and landscaping and broadly consistent building alignments. As such, when visiting the site, there is a distinct suburban character with no significant anomalies in built form or lot design.
The subject proposal, in my opinion, results in development which is more consistent with the R25 coding. The R25 coding requires average lot sizes of 350m² (356m² proposed) and minimum 8m wide frontages (9m and 9.92m frontages proposed).
I visited sites in the City's R25 coded area to the west of the subject land and assessed the respective built form outcomes. There are a number of subdivision examples (and subsequent development approvals) at the R25 density within this area, many of which have been collated in GC8. These examples demonstrate that the built form and streetscape character changes significantly from R20 to R25, due to minimal landscaping, fewer street trees, and increased building bulk, particularly where the lot frontage is less than 10m (GC8, Row 3 and 4).
In order to facilitate dwellings on lots with frontages of 9m 9.92m, one of the limitations is the requirement to provide a sufficient garage which meets the RCodes requirements (where there is no secondary street frontage)[.]
… By introducing development that is more consistent with the R25 coding, the distinct suburban character that is apparent in this location, which comprises of open frontages, front gardens, and building separation, will be lost to increased garage dominance, loss of landscaping and dwellings types that are not consistent with the surrounding landscape.
The Tribunal again prefers the evidence of Mr Chivell and finds that the proposed development would be more consistent with R25 coding.
The Tribunal is not convinced as submitted by Mr Webb that allowing the proposed subdivision would allow a 'diversity of housing choice', 'facilitate and encourage high quality design, built form and streetscapes' and/or 'maintain compatibility with general streetscape'.
This particular site was coded R25 when Mr Gooding first purchased the property and since that time, the planning authorities have seen fit to initially reduce the coding to R12.5 in 1999 and in a more recent review in 2016 increase it to its current coding of R20.
The planning authorities did not see fit or choose to revert the subject land back to its original coding of R25. That planning decision should not be ignored and should indeed be respected.
The Tribunal finds therefore that approving the subdivision applied for in the present case would not 'achieve specific objectives of the local planning framework by providing a greater variety of lot sizes within the area to assist in meeting residential targets'.
Conclusion
This matter had an usual set of circumstances particularly in respect of Issue 1 given the nature of surveystrata and how it is dealt with on termination. However, the applicants, as the Tribunal has found, are entitled to have their proposal considered not as 'nesting' as contended by the respondent but rather under the principles set out in cl 5.1.1 P1.2 of the RCodes and due to that finding consideration of Issue 2 was unnecessary.
However, the Tribunal was then obliged as a matter of orderly and properly planning to consider Issue 3 and whether the proposed subdivision meets the criteria in cl 5.1.1. P1.2 of the RCodes to support a variation to the average lot size requirements for R20 coded land.
In exercising its discretion and applying the criteria in cl 5.1.1 P1.2 of the RCodes which is a state planning policy, the Tribunal is cognisant that it should not slavishly apply policy as many cases have pointed out, but rather is tasked with measuring the proposed application against the relevant planning principles.
In Bormolini and Western Australian Planning Commission [2014] WASAT 121 at [30], the Tribunal observed:
[T]he minimum and average site areas that would apply for residential development purposes are certainly relevant and material in the exercise of planning discretion as to whether to approve a subdivision to create residential lots. This is because, as a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act … in the exercise of planning discretion, the Commission (and the Tribunal on review) will not generally approve an allotment of a lesser size or frontage than that prescribed by the Codes for development purposes.
And in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [182], the Supreme Court stated:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle. A broad range of considerations may be relevant in that context.
In the present case, after carefully considering all of the evidence and for the reasons set out above, the Tribunal is not satisfied that any of the criteria set out in cl 5.1.1 P1.2 of the RCodes apply and as a matter of orderly and proper planning, the Tribunal can find no cogent reason why, in the particular circumstances of the present case, a variation to the average lot size should be allowed and the subdivision applied for approved.
In the circumstances, the respondent's decision to refuse the subdivision application will be affirmed, albeit for entirely different reasons to those for which the respondent refused it, and the application for review will be dismissed.
Orders
For the reasons outlined:
1.The respondent's decision dated 6 April 2018 to refuse the proposed subdivision is affirmed.
2.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR M SPILLANE, SENIOR MEMBER
25 JULY 2019
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