Diggins and Western Australian Planning Commission
[2007] WASAT 235
•11 SEPTEMBER 2007
DIGGINS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 235
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 235 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:153/2007 | 16 JULY 2007 | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 11/09/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is upheld | ||
| B | |||
| PDF Version |
| Parties: | SEAN KEENAN DIGGINS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Application for subdivision approval Development guide plan Resubdivision of rural/residential lots Orderly and proper planning Precedent Minimum and average lot size Significant stands of remnant revegetation Cluster principles Application of sound planning principles |
Legislation: | Planning and Development Act 2005 (WA), s 138, s 138(2), s 138(3), s 138(3)(c), s 241(3), s 251(1) Shire of Busselton District Town Planning Scheme No 20, Table 1, cl 25, cl 25(4), cl 25(8), cl 25(11), cl 85, cl 85(1), cl 85(2), cl 85(3) State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i) Transfer of Land Act 1893 (WA), s 70A |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) |
Orders | (1) The application for review is upheld subject to the following conditions:,1. The battleaxe accessway on proposed Lot 2 being constructed and drained at the applicant/owner’s cost to the specifications of the local government (Local Government);,2. The land being drained at the subdivider’s cost to the satisfaction of the Western Australian Planning Commission, and any easements and/or reserves necessary for the implementation thereof, being provided free of cost (Local Government);,3. Measures being taken to the satisfaction of the Western Australian Planning Commission to ensure identification and protection of any vegetation on the site worthy of retention prior to commencement of site works (Local Government);,4. An approved Fire Management Plan being implemented to the specifications of the Local Government and the Fire and Emergency Services Authority (Local Government);,5. The subdivider making arrangements satisfactory to the Western Australian Planning Commission to ensure that prospective purchasers are made aware of the Fire Management Plan (Local Government);,6. The applicant/owner making a contribution of $1995 towards the cost of upgrading infrastructure in accordance with the Commonage Implementation Policy adopted by the Western Australian Planning Commission in January 1995 (Local Government);,7. A written undertaking being provided to confirm that prospective purchasers of the lots created will be advised of those provisions of the Shire of Busselton’s Town Planning Scheme No 20 and the Commonage Implementation Policy and the approved building envelope plan which relates to the use and management of the land (Local Government);,8. The subdivider shall make arrangements satisfactory to the Western Australian Planning Commission, which will ensure that prospective purchasers of the lots are advised that no reticulated water supply can be provided by the Water Corporation and that purchasers will therefore be obliged to make their own arrangements to provide an adequate supply of potable water. An adequate supply is, at a minimum, 135,000 litres connected to a suitable rainfall catchment of not less than 150 metres squared fitted with a 50 mm male threaded outlet with a gate valve attached at the base of the tank so that the total tank capacity is available for fire-fighting purposes in times of emergency if required. Tanks are to be located within the building envelope and suitably painted and screened where visible from outside the lot (Local Government);,9. The subdivider of the land shall make arrangements to ensure that prospective purchasers of lots are advised in writing that a reticulated sewerage system is not available to the lots and that an onsite effluent disposal system to the satisfaction of Council’s Manager Health Services will be required (Local Government);,10. Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision and that any existing overhead consumer service be converted to underground. If an existing aerial electricity cable servicing the land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will need to be made for the removal and relocation of that cable (Western Power);,11. Prior to commencement of site works, a detailed plan identifying building envelopes on all lots on the approved plan of subdivision is to be prepared in consultation with the local government (Local Government);,12. All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government); and,13. The Applicant provide and plant 300 native plants for revegetation of proposed Lot 2 as designated by Environmental Scientist, Mr Mick McCarthy, to the satisfaction of Shire of Busselton (Local Government). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DIGGINS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 235 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : 16 JULY 2007 DELIVERED : 11 SEPTEMBER 2007 FILE NO/S : DR 153 of 2007 BETWEEN : SEAN KEENAN DIGGINS
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Application for subdivision approval - Development guide plan - Resubdivision of rural/residential lots - Orderly and proper planning - Precedent - Minimum and average lot size - Significant stands of remnant revegetation - Cluster principles - Application of sound planning principles
Legislation:
Planning and Development Act 2005 (WA), s 138, s 138(2), s 138(3), s 138(3)(c), s 241(3), s 251(1)
(Page 2)
Shire of Busselton District Town Planning Scheme No 20, Table 1, cl 25, cl 25(4), cl 25(8), cl 25(11), cl 85, cl 85(1), cl 85(2), cl 85(3)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(i)
Transfer of Land Act 1893 (WA), s 70A
Result:
The application for review is upheld
Category: B
Representation:
Counsel:
Applicant : Mr RE Diggins, Acting as Agent
Respondent : Mr M Cuthbert (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Western Australian Planning Commission to refuse the subdivision of a 2.063 hectare rural/residential lot into two lots of 1.05 hectares and 1.013 hectares at Lot 204, Summer Brace, Yallingup in the Shire of Busselton.
2 The Tribunal examined the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions at State and local level and a series of issues including the possible loss of vegetation and fauna if the proposal was to proceed. The matters of precedent and the personal "hardship" circumstances of the applicant were also examined.
3 The Tribunal found that in an overall sense the relevant provisions of statutory and policy documents were not inflexible and had allowed the respondent to approve lot sizes of 1 hectare (or less) in a "site specific" Development Guide Plan within the Commonage Policy Area.
4 It was also found that the 3 hectare "average" lot size should not be seriously compromised in the rural/residential zone, and that an approval in this instance would not undermine that objective.
5 On balance, taking into account the significant on-going "hardship" circumstances of the applicant, together with the principle of orderly and proper planning not being put at risk in this instance, the Tribunal found in favour of the applicant.
6 The application for review was upheld.
Introduction
7 The application for review, dated 26 April 2007, was lodged by Mr Sean Keenan Diggins (applicant) against a decision of the Western Australian Planning Commission (WAPC) (respondent) on 30 March 2007 to refuse the subdivision of a single 2.063 hectare "rural/residential" lot into two lots of 1.05 hectares and 1.013 hectares at Lot 204, Summer Brace, Yallingup.
8 The application was lodged under the provisions of s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
(Page 4)
9 The reasons for refusal were:
"1. The subject land is located within the 'Rural Residential' zone in the Shire of Busselton District Town Planning Scheme No 20. Clause 85(1) of the Scheme states that 'subdivision and development shall be generally in accordance with the Rural Strategy adopted by the Council and the Western Australian Planning Commission for the district, and where applicable, the Development Guide Plan approved and adopted by the Council and the Western Australian Planning Commission'. The proposed subdivision is inconsistent with the endorsed development guide plan for the locality, which identifies the subject land as a single rural residential lot.
2. Clause 85(2) of the Shire of Busselton District Town Planning Scheme No 20 states that 'Except in the case of expressly approved staged subdivision, no further subdivision of lots created pursuant to sub-clause (1) will be permitted'. The subject application is inconsistent with Clause 85(2) as it proposes the further subdivision of a rural residential lot identified on an endorsed Development Guide Plan.
3. The subject land is located in 'Policy Area 6 - Commonage' in the Shire of Busselton Rural Strategy. The Commonage Structure Plan which forms part of the Strategy specifies a minimum lot size of 2 hectares and an average lot size of 3 hectares for the parent lot ([that is] Location 473) of the subject land. The parent lot was subdivided in accordance with the aforementioned lot size and density policy standards of the Rural Strategy. Further submission in the manner proposed is not supported as it is inconsistent with the Rural Strategy and Commonage Structure Plan.
4. The proposed subdivision is subject to the provisions of the endorsed 'Commonage Policy Area Consolidated Structure Plan' (CCSP). The subject proposal does not comply with the minimum lot size of 2 hectares and average lot size of 3 hectares, as required by the CCSP.
(Page 5)
- 5. The proposed subdivision is subject to the provisions of the endorsed "Lot 1 Sussex Location 473 Marrinup Drive Development Guide Plan'. A provision of the Development Guide Plan is that 'no further subdivision shall be supported by Council.' The proposal is inconsistent with the intent and provisions of the guide plan as the proposed lots represent further subdivision to that identified under the guide plan.
6. Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Special Rural Zone of this locality."
Subject land
10 The subject land can be described as Lot 204, Autumn Rise, Yallingup, on Certificate of Title Volume 2554, Folio 874 on Diagram/Plan P0 38217/204. It is located on the corner of Autumn Rise (a cul-de-sac) and Summer Brace.
11 In the application for subdivision, as prepared by Fin Com South West on 1 January 2007, the subject land was described:
"Lot 204 is an irregular shaped corner lot having a total area of 2.063 hectares. The lot has an eastern boundary frontage of 74.84 metres to Summer Breeze, a north eastern boundary of 182.09 metres, a north boundary of 60.05 metres, a north western boundary of 228.07 metres and an irregular southern boundary frontage to Autumn Rise of 82.75 metres (including 8.48 metre truncation. The site is generally level.
Services connected to the site comprise electricity and telephone. Scheme water is unavailable, however a 90 000 litre rainwater tank is included in the existing development. Soils are sandy with vegetation dominated by sheoaks, peppermints, grass trees and sparse redgums. The site is unfenced. A gravel track runs along the rear (northern) boundary."
12 There is an existing residence on the site with an associated audio mastering studio.
The legislative framework
13 The subject land is zoned "rural residential" in the Shire of Busselton District Town Planning Scheme No 20 (TPS 20).
(Page 6)
14 Other relevant documents include:
(a) Shire of Busselton Local Strategy (LRS);
(b) West Commonage Special Rural Zone Precinct 5B Development Guide Plan (Precinct 5B DGP);
(c) Commonage Policy Area Consolidated Structure Plan (CCSP); and
(d) Lot 1 (Sussex Loc 473) Marrinup Drive Development Guide Plan (Lot 1 DGP)
(e) Statement of Planning Policy 6.1 (SPP 6.1) Leeuwin-Naturaliste Ridge Policy;
(f) Development Control Policy 3.4 - Subdivision of Rural Land (DC 3.4).
Respondent's position
15 The position of the respondent is outlined in its Statement of Issues, Facts and Contentions dated 31 May 2007. It outlines in detail the specifics behind the respondent's reasons for refusal but also contends:
(a) An approval would require the clearing of vegetation for development and access purposes. This would likely result in the loss of fauna habitat and privacy, and would be contrary to the expectations of the local community.
(b) The creation of rural/residential lots in the Commonage Policy Area is the result of a so-called "layered" approach, working from broad scale objectives and identification of issues to the development of detailed plans adapted to site specific issues. To deviate from the findings of this comprehensive process would be contrary to orderly and proper planning.
(c) Under s 138(2) of the PD Act an approval cannot be given to a proposal that conflicts with the provisions of a local planning scheme, unless criteria listed under s 138(3) apply. None of the criteria under s 138(3) apply, and the proposed subdivision directly conflicts with cl 85(1) and cl 85(2) of TPS 20.
(Page 7)
- (d) The proposed subdivision is inconsistent with cl 5.1, Settlement Heirarchy – Rural Residential of SPP 6.1, as the proposal represents further subdivision of a rural/residential lot.
(e) The proposed subdivision is inconsistent with cl 4.11 of DC 3.4 as it is not consistent with cl 85(1) and cl 85(2) of TPS 20 and cl 9.5 and cl 9.11 of the LRS which do not specifically provide for the creation of lots under 2 hectares in the location proposed.
(f) An approval would create an undesirable precedent for subdivision and development in the Commonage Policy Area and would be contrary to the LRS, TPS 20, CCSP, endorsed Development Guide Plans and the respondent's policies.
(g) The claims of "hardship" will affect the application of sound planning principles and an approval would be contrary to s 241(3) of the PD Act.
Applicant's position
16 The position of the applicant is outlined in a Statement of Issues, Facts and Contentions dated 19 June 2007. It broadly argues:
(a) The detailed position of the respondent is in regard to the simplest of proposals; namely the subdivision of a 2 hectare lot (approximately) into two generally equal parcels.
(b) The planning restrictions within the layers of documents and maps for the Commonage Precinct have been relaxed by the Shire of Busselton and the respondent in the making of planning decisions.
(c) The assessment of the proposal should have regard to the flexibility demonstrated in previous planning decisions throughout the Commonage Precinct.
(d) Several of the planning documents were prepared/issued in the early to late 1990's and are now aged.
(Page 8)
- (e) The LRS has been overtaken by subsequent planning documents. However, the proposal appears to comply with the LRS (Policy Area 6).
(f) The respondent gives six reasons for refusing the application to subdivide. These can all be contested.
(g) A precedent would not be created if subdivision was approved because:
(i) resubdivision of rural/residential lots has previously occurred in the Commonage Precinct.
(ii) an approval based on compelling hardship/compassionate grounds is already well established in Yallingup.
(iii) The subject land is not typical of most rural residential lots in the Commonage Precinct in that it is a corner site, level, has deep sandy soils and low value flora and minimal fauna.
(h) If the subdivision was approved, the "average" lot size yield would accord with previous planning decisions made by the Shire and the respondent throughout the Commonage Precinct.
(i) The proposed subdivision is generally in accordance with the relevant planning instruments and policies and there is no serious conflict with sound planning principles.
(j) Any conflict with s 138(3)(c) of the PD Act is of a minor nature and an approval would be consistent with the general intent of TPS 20.
(k) Clause 241(3) of the PD Act allows subdivision into no more than three lots where hardship is demonstrated to and accepted by the Tribunal.
Planning issues
17 The principal planning issues are:
(a) Would an approval to allow the proposed subdivision be contrary to orderly and proper planning?
(Page 9)
- (b) Would an approval be likely to create a precedent for other landowners of similar sized lots to seek subdivision in the Commonage Precinct?
(c) Is there an argument to approve the application on the grounds of hardship?
Assessment of proposal
Background
18 On 27 March 2002 the subject lot was created under subdivision approval WAPC Ref 117756 over Lot 1 Marrinup Drive, Yallingup (Sussex Location 473) and in accordance with the Lot 1 DGP and the Precinct 5B DGP.
19 On 3 January 2007, the applicant lodged an application Form 1A and subdivision plan to subdivide the subject land into two lots of 1.05 hectares and 1.013 hectares.
20 On 30 March 2007 the respondent refused the application for subdivision.
21 On 26 April 2007 the application for review was signed and lodged with the Tribunal the following day.
Legislative and policy provisions
Town Planning Scheme No 20
22 Under Table 1 the following "objective" for the Rural Residential Zone is relevant:
"(ii) To ensure that development maintains the rural character of the locality, maintains a high level of residential amenity and minimises disturbance to the landscape through construction of buildings and structures, clearing, earthworks and access roads."
23 Again, under Table 1, the following "policy" measures for the Rural Residential Zone are stated:
"(a) To encourage rural residential subdivision by permitting a range of lot sizes in conventional subdivision subject to a general minimum [lot] size of 1 hectare with an average minimum lot size of approximately 2 hectares …
- …
- (e) To encourage generally, and require specifically in rural residential subdivision, the provision of vegetation and fauna corridors and the revegetation of the land;
…
(h) To generally implement and adhere to the adopted recommendations and outcomes of the Shire of Busselton Rural Strategy as endorsed by the WA Planning Commission."
24 On the matter of a Development Guide Plan it is advised under TPS 20 cl 25:
" …
(4) Following receipt of a [DGP] which, in the opinion of the Council, adequately addresses the orderly and proper planning of the land, the Council shall cause the [DGP] to be advertised for a minimum period of 28 days.
…
(8) The [DGP] so adopted shall be endorsed by the Council and the [WAPC] and shall have no effect until such endorsements are made thereon. The subdivision or development of the land the subject of the [DGP] shall be in accordance with the endorsed [DGP], with the exception that building envelopes may be modified/relocated by Council as part of granting planning consent for development.
…
(11) A proposed modification to a [DGP] shall, for the purposes of Sub-Clauses (2) to (8) inclusive, be a [DGP].
25 Provisions relating to subdivision and development of rural residential land are covered under cl 85 and include:
"(1) Subdivision and development shall be generally in accordance with the Rural Strategy adopted by the Council and the Western Australian Planning
- Commission for the district and, where applicable the [DGP] approved and adopted by the Council and the Western Australian Planning Commission.
- (2) Except in the case of expressly approved staged subdivision, no further subdivision of lots created pursuant to Sub-Clause (1) will be permitted.
(3) Where subdivision of lots either:
(a) Not included within an approved Subdivision or [DGP]; or
(b) Where no lot size is prescribed in the Rural Strategy adopted by Council and the WA Planning Commission; or
(c) Comprising resubdivision of lots included within an approved Subdivision or [DGP] is proposed, Council shall not recommend approval of such subdivision prior to approval by Council and the WA Planning Commission of a [DGP] prepared consistent with Clause 25 of the Scheme."
" … in circumstances supported by Council and the WAPC, re-subdivision of Rural Residential lots can be approved notwithstanding clause 85(2)."
27 Although the Tribunal would agree with the applicant on this point, it is not the intent of cl 85 of TPS 20 that ad hoc subdivision occur, but rather that the processes included within cl 25 be followed if re-subdivision is to take place.
28 However, the Tribunal is not fettered by such constraints in reaching a decision.
Commonage Policy Area Consolidated Structure Plan
29 The CCSP was endorsed on 27 June 2001 and later updated and endorsed by the respondent on 18 October 2004. It consolidates all of the endorsed DGPs in the Commonage area.
(Page 12)
30 The Notes to the CCSP advise:
"1. Rezoning and subdivision of land within the Cluster Precinct for Rural Residential purposes shall be subject to the provisions of the [LRS] (average lot size 3 hectares) …
4. Additional subdivision of Rural Residential … shall not be supported by Council, except where specifically provided for on an endorsed [DGP].
5. Pursuant to [TPS 20] Council requires preparation and endorsement of a [DGP] for each parcel of land within the Policy Area prior to approving any subdivision or development of the land.
6. The [CCSP] is to be read in conjunction with the relevant Structure Plans and [DGP] adopted by Council including:
…
West Commonage Precinct 5B [DGP]."
32 The view of the applicant is that on occasions, lots of 1.0 hectare (or less) have been created within the area covered by the CCSP.
Precinct 5B Development Guide Plan
33 The Precinct 5B DGP was endorsed by the respondent on 23 September 2002 and outlined general lot size requirements for rural lots (including Lot 1 Marrinup Drive) of 2 hectares minimum and an average lot size of 3 hectares.
34 Special Condition 1 advised:
"No subdivision shall be permitted other than in accordance with this plan and any Subdivision and [DGP] which may be subsequently adopted by the Council."
35 The Precinct 5B DGP provides for further site specific DGPs, including Lot 1 Marrinup Drive, and it is assumed that the lot size criteria would carry over into the next level DGP.
(Page 13)
36 However, once again in the view of the applicant, these constraints have been put to one side by the respondent and 1.0 hectare lots created within the Precinct 5B DGP.
Lot 1 Marrinup Drive Development Guide Plan
37 The Lot 1 DGP was endorsed by the respondent on 23 April 2002 and outlines a detailed design and subdivision for Lot 1. This was approved by the respondent on 28 March 2002 and created the subject land.
38 Amongst the policy statements it advised:
"No further subdivision shall be supported by Council".
39 However, the applicant argues that this statement is open to interpretation and is in relation to:
"… the remaining 'rural production' lot of approximately 15 hectares".
40 There is no valid information before the Tribunal to support this contention.
Shire of Busselton Local Rural Strategy
41 The LRS was endorsed by the respondent in 1993 and the subject land is located within "Policy Area 6 Commonage" of the Structure Plan.
42 The subdivision of Policy Area 6 is estimated to provide approximately 1000 lots and certain principles are outlined. These include:
"That rural residential subdivision within significant stands of remnant vegetation be permitted in the form of rural retreat development with a minimum lot size of 2 hectares and an average lot size of 3 hectares".
43 Just what is meant by "significant stands of remnant vegetation" is not explained.
Statement of Planning Policy 6.1
44 Under s 5.1, Settlement Heirarchy – Rural Residential it advises:
(Page 14)
- "It is a general policy of [SPP 6.1] that new areas of Rural Residential subdivision will not be supported, therefore the Strategy does not designate new areas for such uses. Where possible, infill development within areas designated Rural Residential should adopt cluster principles that are more responsive to retaining landscape values and allowing some agricultural pursuits.
Clustered forms of development in designated Enclaves may be permitted, but there is a general presumption against further Rural Residential subdivision throughout most of the policy area … "
Development Control Policy 3.4 - Subdivision of rural land
45 Under the General Policy Measures (General Presumption against subdivision) it advises:
"3.1.1 There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy."
46 These same provisions are specified for rural/residential subdivision under cl 4.1 of the Policy.
Planning and Development Act 2005
47 Under cl 138 (Approval of Commission) it advises:
"(2) … the Commission [respondent] is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme."
48 A flexibility provision is included under cl 138(3):
"(3) The Commission may give an approval … that conflicts with the provisions of a local planning scheme if
(a) the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State
- planning policy that deals with substantially the same matter;
- (b) the approval is consistent with a region planning scheme that deals with substantially the same matter;
(c) in the opinion of the Commission -
(i) the conflict is of a minor nature; or
(ii) the approval is consistent with the general intent of the local planning scheme;
(d) the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict … "
49 In the witness statement dated 2 July 2007 of Mr Peter Alan Gianatti, a qualified town planner for the respondent, he advises:
"39 Approval cannot be given to the application …
… as none of the criteria listed under section 138(3) apply … "
"13 … the subdivision is minor and therefore can be approved …"
The matter of "average and minimum" lot size
51 In his witness statement, Mr Gianatti argues:
"41) The LRS, CCSP and Precinct 5B DGB determined that a 3 ha average lot size represented the maximum lot yield for the land subject to the Lot 1 Marrinup Drive DGP with regard to issue of retaining remnant vegetation and landscape values.
The Lot 1 Marrinup Drive DGP planned for [an] average lot size of 3.1 ha, consistent with Council policy. The application for the creation of two lots not planned for
- under the DGP results in an average lot size of 2.9 hectares, inconsistent with Council policy."
52 Mr Gianatti did acknowledge that within the Lot 1 DGP that:
(a) three lots were allowed below the 2 hectare minimum;
(b) the three lots were clustered in a cleared area where development would not be visible from travel route corridors;
(c) the three lots were permitted in agreement with the landowner, who provided a rural production lot as part of a lot size mix and to retain the rural character of the area; and
(d) the average lot size of 3 hectares was not varied.
53 The response from the applicant in his evidence statement was:
"This supports my contention that, in some subdivision applications, the Shire and WAPC have relaxed strict application of the Commonage Structure Plan, TPS 20 and other "policy layers" in order to approve subdivisions which do not strictly conform …"
The matter of 1 hectare lots (or less) in the Commonage Policy Area
54 In his witness statement Mr Gianatti advises:
"While lots of 1 hectare or less do exist within the Commonage Policy Area, the policy area has been comprehensively planned to meet the LRS objective of providing for a range of lot sizes in suitable areas. Lots of 1 hectare or less in proximity to the subject lot are located in cleared areas with minimal impact on the local landscape. Under the LRS, areas with significant stands of vegetation should be developed with a minimum lot size of 2 ha …"
55 The response from the applicant in his evidence statement was:
"Lots of 1.0 hectare or less have been created in areas in the Commonage Structure Plan where the "cells" within which they are located clearly state 2.0 hectare minimum. To vary from
(Page 17)
- this because of some local feature of the land is not consistent with the previous applicable policies …"
56 In support of this contention the applicant provided a series of appendices (Appendix A to I) to the Statement of Issues, Facts and Contentions including Appendix A (Nukklgup Loop/Corymbia Close, Yallingup). He advised:
(a) Five 1 hectare lots had been created.
(b) The subdivision is approximately 750 metres west of the subject land and contains one battleaxe lot, broadly comparable to that now being sought.
(c) The land is clearly within Commonage Precinct 5B which states "minimum lot size 2.0 hectares".
(d) Lot 6 (9984 square metres ) is densely vegetated with marri, jarrah and grass trees.
57 The difficulty the Tribunal has with this information is that the detailed planning rationale behind the various decisions outlined in Appendices A to I has not been made available to it by the respondent, other than the broad statement by Mr Gianatti in [54] above.
58 However, what appears to have taken place is that 1 hectare lots have been created in areas specified within a 2 hectare minimum, but the subdivision has occurred under the umbrella of a DGP. In other words, a degree of flexibility with respect to lot size has been introduced into the planning framework.
The matter of re-subdivision in the Commonage Policy Area
59 In his witness statement, Mr Gianatti advised:
" 44) The Commission has consistently refused applications for the re-subdivision of rural residential lots created pursuant to a DGP. It is acknowledged that a re-subdivision has been approved on Lot 6 Koorabin Drive. However, approval was granted on [M]inisterial appeal involving particular compassionate grounds …"
(Page 18)
60 However, in his Appendix E, the applicant draws attention to a re-subdivision (by strata title) in February 2006 at Lot 111 Bina Place within Commonage Policy Area 3.
61 There is no information from the respondent to explain the planning rationale behind that decision.
The matter of a "Memorial on Title"
62 In his witness statement, Mr Gianatti advises that the subject land was created out of WAPC approval Ref 117756, and that condition 14 required the subdivider to ensure that prospective purchasers of lots be advised of the relevant provisions of TPS 20, the DGP and so on.
63 This was achieved by the Shire clearing condition 14 subject to a memorial on title under s 70A of the Transfer of Land Act 1893 (WA). The memorial on title advised:
"2. Prospective purchasers of the lots created are advised that they must comply with the provisions of the Shire of Busselton District Town Planning Scheme No 20 and the approved Development (Subdivision) Guide Plan (and schedule of Planning Policy Statements) which relates to the use and management of the land, the Commonage Implementation Policy and the Shire Policy on building materials."
64 In the applicant's Statement of Evidence he disputes a contention by Mr Gianatti that the memorial on title confirms the applicant's knowledge, prior to purchase of the subject land, that was not permitted.
65 The position of the Tribunal on this matter is that cl 2 of the memorial on title appears to place the onus on the prospective purchaser to make himself/herself aware of the Shire's requirements with respect to the use and management of the land.
66 The matter of subdivision and re-subdivision approvals rests entirely with the respondent (not the Shire) and the wording of cl 2 lacks specificity. It is a serious deficiency in not making it absolutely clear that re-subdivision would not be permitted.
The matter of vegetation and fauna
67 In [15(a)] above, the respondent argues that an approval would require the clearing of vegetation and the likely loss of fauna habitat.
(Page 19)
68 The applicant refers to an environmental assessment prepared by Mr M McCarthy BSc (ENV), Cert. Hort in June 2007. Mr McCarthy advises:
(a) The native vegetation is dominated by Sheoak, Bull Banksia and Peppermints with the occasional Marri and Tea Tree. There is limited understorey.
(b) A building could be located within a building envelope positioned in the most degraded areas, and healthy vegetation conserved.
(c) The limited biodiversity and sparse understorey, together with the degraded condition of overstorey species, provides conditions that are not conducive to utilisation of the property by native birds, reptiles and mammals.
(d) The proposed battleaxe access leg has been carefully located along the western boundary to minimise the loss of vegetation.
(e) Revegetation could offset the loss of vegetation associated with the proposed subdivision.
The matter of precedent
69 In [15(b)] the respondent argues that an approval would create an undesirable precedent for subdivision and development in the Commonage Policy Area.
70 On the other hand, the applicant argues that a precedent has already been set with approvals granted elsewhere for 1 hectare lots in areas specifying a 2 hectare lot size minimum.
71 In Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) it states:
"The precedent argument is not usually treated by this Tribunal as a 'stand-alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of development should not be a reason why the appeal should be dismissed."
(Page 20)
72 The rationale applied in Aspen Pty Ltd v State Planning Commission will be followed in this case, with the respective arguments judged on their merits.
The matter of hardship
73 Under s 241(3) of the Planning and Development Act 2005 the matter of hardship is addressed:
"In determining an application for the review of a determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles."
74 The submissions from the applicant are based on personal financial circumstances and health issues, with the latter contributing in part to the former.
75 Putting financial circumstances to one side, the submissions from Dr Paul Buckeridge MB BS W.Aust, FACRRM from the Cape Naturaliste Medical Centre and Dr Sirje A Maar BSc MRCP (UK), FRACP Consultant Physician, point to a series of chronic conditions requiring continuing treatment and medication.
76 Based on these reports, the Tribunal is satisfied that the applicant suffers from genuine chronic health problems which, although not life-threatening, seriously jeopardise his long-term health, well-being and capacity to work full-time.
Conclusions
77 The application for review was lodged against a decision of the respondent to refuse the subdivision of a 2.063 hectare rural/residential lot into two lots of 1.05 hectare (front) and 1.013 hectare (rear). The front lot would contain the existing residence, and the rear lot would be in a "battleaxe" form with the access leg along the western boundary of the subject land.
78 In examining this matter the Tribunal considered the respective arguments of the parties, the background to the proposal, the relevant legislative and policy provisions at State and local level and a series of
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- issues including the possible loss of vegetation and fauna, if the proposal was to proceed, and matters of precedent and the personal "hardship" circumstances of the applicant.
79 Of prime consideration in this matter is whether an approval would be contrary to orderly and proper planning and/or whether it could lead to similar applications from nearby landowners. Also, whether an approval on "hardship" grounds could affect the application of sound planning principles.
80 The position of the respondent is that the creation of rural/residential lots in the Commonage Policy Area is the result of a comprehensive "layered" planning approach, working downwards from broad scale objectives to site-specific circumstances. Also, that the proposal conflicts with the relevant provisions of the PD Act, TPS 20 and relevant State and local plans and that an approval would not put sound planning principles at risk.
81 The position of the applicant is that both the respondent and the Shire have relaxed planning restrictions elsewhere in the Commonage Policy Area, and that rather than the application of strict standards there has been flexibility in the decision-making process. Also, that several of the planning documents were prepared years ago and have been overtaken by others, and that the proposal is generally in accord with planning policy and principles and would not create a precedent.
82 A matter that can readily be put to one side is that argued by the applicant that several of the planning documents are outdated and have been overtaken by other more recent documents.
83 In the view of the Tribunal as long as documents are still valid, and have not been formally replaced by others, they will continue to be used by public authorities and the Tribunal.
84 In examining the so-called "layered" approach, the high level State policy documents of DC 3.4 and SPP 6.1 are of little assistance now as rural/residential zoning has already been put into place and the resulting Development Guide Plans (DGP) have adopted the "cluster principles" advocated in SPP 6.1.
85 Under the LRS the subject land is located in "Policy Area 6 Commonage" and the important principle of a 2 hectare "minimum" lot size and a 3 hectare "average" lot size in the rural/residential zone is established.
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86 Of interest is the provision of allowing rural/residential subdivision "… within significant stands of vegetation."
87 Of considerable importance are the provisions of TPS 20 where, under Table 1, rural residential subdivision is encouraged by permitting a range of lot sizes in conventional subdivision subject to a minimum lot size of 1 hectare and an average minimum lot size of approximately 2 hectares.
88 Just how this is supposed to accord with the lot sizes specified in the LRS is not absolutely clear but the differences may well rely on the wording "conventional subdivision".
89 For the purposes of this review, the Tribunal accepts that the range of lot sizes within the Commonage Policy Area are not "conventional" and that the lot size criteria in the LRS should apply.
90 This view is given some credence in policy measure (h) under Table 1 of TPS 20 which seeks to generally supplement and adhere to the recommendation of the LRS.
91 Under cl 25 of TPS 20 there is provision for the preparation of a DGP, and that subdivision and development is to accord with the DGP.
92 Clause 85(2) of TPS 20 is clear in that no further lots are to be created under a DGP but, somewhat conversely, resubdivision is provided for under cl 85(3) subject to a new DGP.
93 In other words, once a DGP is established then subdivision proceeds on that basis except when a new overriding DGP comes into effect over all or a part of the original DGP.
94 Clearly, it is not the intent that ad hoc re-subdivision occur but, if it is to take place under cl 85(3), that the procedures of cl 25 to create a new DGP be followed.
95 The Tribunal is not constrained by such procedures.
96 Under the CCSP there are "flexibility" provisions built into the process whereby an increase in density to an average lot size of 2 hectares may be considered by Council. There are also the provisions for the preparation of a DGP prior to subdivision or development being approved.
97 The Precinct 5B DGP reiterates the 2 hectare "minimum" and 3 hectare "average" lot size and provides for further "sitespecific" DGPs.
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98 The Lot 1 DGP is a "site-specific" DGP and includes the subject land. It outlines a detailed subdivision design and advises that no further subdivision will be supported by Council.
99 However, what is included in the DGP are a range of lot sizes from 1.02 hectare through the 15.20 hectares with an "average" lot size in the order of 3.0 hectares to 3.1 hectares.
100 If the proposed subdivision was to proceed the "average" would fall to some 2.8 hectares to 2.9 hectares.
101 Of related interest are a series of appendices submitted by the applicant showing examples of 1 hectare lots created in the Commonage Policy Area which, although requiring a "minimum" lot size of 2 hectares, do in fact provide for lots of 1 hectare (or less).
102 The difficulty the Tribunal has with this information is that the 2 hectare "minimum" lot size appears to have been put to one side in favour of a more flexible "negotiated" approach. As advised by Mr Gianatti in his witness statement in relation to the Lot 1 Marrinup Drive DGP and the three lots below 2 hectares: "The 3 lots were permitted in agreement with the landowner …"
103 The matter of re-subdivision was addressed by Mr Gianatti:
"The Commission has consistently refused applications for the resubdivision of rural residential lots created pursuant to a DGP."
104 He advised that re-subdivision had taken place at Lot 6 Koorabin Drive following a Ministerial appeal on compassionate grounds.
105 However, the applicant advised of a re-subdivision in 2006 (by strata title) at Lot 111 Bina Place as well as further examples of on compassionate grounds. The matter of re-subdivision was also addressed by the parties with respect to a memorial on title which the respondent argues would have clarified for prospective purchasers that re-subdivision was not permitted.
106 However, in the view of the Tribunal, the wording of the relevant clause lacks specificity, and is a serious deficiency in not making it absolutely clear that re-subdivision would not be permitted in the absence of a further "site-specific" DGP.
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107 On the matter of vegetation and fauna on the subject land the Tribunal accepts the evidence of Mr M McCarthy that there are limited large trees, understorey and fauna at risk on subdivision. It also accepts that a management plan could be put into place to assist in the revegetation process.
108 On the matter of precedent, the Tribunal acknowledges that an approval could give rise to other nearby applications to subdivide 2 hectare lots, but in this case the arguments of the applicant go beyond planning considerations to matters of "hardship" as contemplated under s 241(3) of the PD Act.
109 The Tribunal is satisfied that the applicant suffers from genuine chronic health problems which, although not life-threatening, seriously jeopardise his long-term health, wellbeing and capacity to work fulltime.
110 In an overall sense the Tribunal does not find that the relevant provisions of the Scheme, and the various policy documents at State and local level, are totally inflexible. Rather, there is an element of flexibility built into various provisions which at the site-specific DCP level allow for lots as low as 1 hectare. The Lot 1 Marrinup Drive DGP is a case in point.
111 In other words, the orderly and proper planning objectives established in the various layers of planning documents are not put at risk if the proposal was to proceed.
112 What is important though is that the 3 hectare "average" lot size is not seriously compromised because if it were, the rural/residential nature of the locality could be changed forever. It is not considered that, if the proposal was to proceed, that the resulting "average" lot size of some 2.9 hectares would, in fact, be a serious compromise.
113 On balance, taking into account the significant ongoing hardship circumstances of the applicant together with the planning principle of orderly and proper planning not being put at risk, the Tribunal finds in favour of the applicant.
114 The application for review is upheld.
Orders
For the foregoing reasons, and in accordance with s 29(3)(c)(i) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
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- (1) The application for review is upheld subject to the following conditions:
1. The battleaxe accessway on proposed Lot 2 being constructed and drained at the applicant/owner’s cost to the specifications of the local government (Local Government);
2. The land being drained at the subdivider’s cost to the satisfaction of the Western Australian Planning Commission, and any easements and/or reserves necessary for the implementation thereof, being provided free of cost (Local Government);
3. Measures being taken to the satisfaction of the Western Australian Planning Commission to ensure identification and protection of any vegetation on the site worthy of retention prior to commencement of site works (Local Government);
4. An approved Fire Management Plan being implemented to the specifications of the Local Government and the Fire and Emergency Services Authority (Local Government);
5. The subdivider making arrangements satisfactory to the Western Australian Planning Commission to ensure that prospective purchasers are made aware of the Fire Management Plan (Local Government);
6. The applicant/owner making a contribution of $1995 towards the cost of upgrading infrastructure in accordance with the Commonage Implementation Policy adopted by the Western Australian Planning Commission in January 1995 (Local Government);
7. A written undertaking being provided to confirm that prospective purchasers of the lots created will be advised of those provisions of the Shire of Busselton’s Town Planning Scheme No 20 and the Commonage Implementation Policy and the
- approved building envelope plan which relates to the use and management of the land (Local Government);
- 8. The subdivider shall make arrangements satisfactory to the Western Australian Planning Commission, which will ensure that prospective purchasers of the lots are advised that no reticulated water supply can be provided by the Water Corporation and that purchasers will therefore be obliged to make their own arrangements to provide an adequate supply of potable water. An adequate supply is, at a minimum, 135,000 litres connected to a suitable rainfall catchment of not less than 150 metres squared fitted with a 50 mm male threaded outlet with a gate valve attached at the base of the tank so that the total tank capacity is available for fire-fighting purposes in times of emergency if required. Tanks are to be located within the building envelope and suitably painted and screened where visible from outside the lot (Local Government);
9. The subdivider of the land shall make arrangements to ensure that prospective purchasers of lots are advised in writing that a reticulated sewerage system is not available to the lots and that an onsite effluent disposal system to the satisfaction of Council’s Manager Health Services will be required (Local Government);
10. Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision and that any existing overhead consumer service be converted to underground. If an existing aerial electricity cable servicing the land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will
- need to be made for the removal and relocation of that cable (Western Power);
- 11. Prior to commencement of site works, a detailed plan identifying building envelopes on all lots on the approved plan of subdivision is to be prepared in consultation with the local government (Local Government);
12. All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation (Local Government); and
13. The Applicant provide and plant 300 native plants for revegetation of proposed Lot 2 as designated by Environmental Scientist, Mr Mick McCarthy, to the satisfaction of Shire of Busselton (Local Government).
I certify that this and the preceding [114] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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