DIMASI and WESTERN AUSTRALIAN PLANNING COMMISSION
[2007] WASAT 200
•08/06/2007
DIMASI and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 200
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 200 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:67/2006 | 6 MARCH 2007 (FURTHER WRITTEN SUBMISSIONS RECEIVED 12 APRIL 2007, 16 APRIL 2007 AND 8 MAY 2007) | |
| Coram: | MS M CONNOR (MEMBER) MR B HUNT (SENIOR SESSIONAL MEMBER) MR P CURRY (SESSIONAL MEMBER) | 6/08/07 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is allowed The subdivision approval is granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | ROBERT DIMASI WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision to create seven freehold lots EPA advise that proposal should be treated as "Not Assessed Public Advice Given" Land zoned "Urban" in MRS and "Residential" in TPS 2 Rural Strategy designates subject land as "Rural Living 'A'" and identifies the need for structure planning for the Serpentine locality Located within the Peel-Harvey Plain Catchment Whether structure planning is required as a prerequisite to further residential subdivision in this locality Issues relating to density, water management, road patterns, POS and further fragmentation of land Precedent |
Legislation: | Environmental Protection Act 1986 (WA), s 38 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 25, s 135, s 138, s 253, s 241 Residential Design Codes of Western Australia (2002) Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 1.6(b), cl 5.3 Town Planning and Development Act 1928 (WA), s 26(1)(ab), s 5AA |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Goldin & Anor v Minster for Transport (2002) 121 LGERA 101 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 |
Orders | 1. The application for review is allowed.,2. Approval is granted for the subdivision of Lot 94 Tonkin Street, Serpentine into seven freehold lots as shown on Plan Ref 04/328/01 prepared by Dykstra Planning, subject to the following conditions:,i) The lots not fronting an existing road being provided with frontage to a constructed road(s) which is connected by a constructed road(s) to the local road system with such road(s) being constructed and drained at the applicant/owner's cost. Alternatively, the application/owner may pay to the local government the cost of such road works, as estimated by the local government.,ii) Street corners within the subdivision are to be truncated to the standard truncation of 8.5 metres. (Local Government),iii) A temporary cul-de-sac head being designed and constructed to the satisfaction of the local government. (Local Government),iv) Street intersections being designed and constructed to the satisfaction of the local government. (Local Government),v) Arrangements being made with the local government for the upgrading of Lefroy Street and Tonkin Street where they abut the proposed lots. This should not be interpreted to imply that the WAPC requires the upgrading to be at the subdivider's expense alone but that this is a matter of negotiation between the subdivider and the local government. (Local Government),vi) Construction drawing shall be submitted to, and approved by, the Shire of Serpentine-Jarrahdale prior to the commencement of site works. (Local Government),vii) The applicant/owner is to provide a geotechnical report certifying that the land is physically capable of development prior to the commencement of site works. (Local Government),viii) The land being filled and/or drained at the applicant's cost to the satisfaction of the WAPC and any easements and/or reserves necessary for the implementation thereof being granted free of cost. (Local Government),ix) The applicant providing a geotechnical report certifying that any filling or backfilling has been adequately compacted.,x) Suitable arrangements being made for connection of the land to the comprehensive district drainage system at the applicant/owner's coats. (Local Government),xi) The land is to be provided with an adequate outlet drainage system at the applicant/owner's cost. (Local Government),xii) The land being graded and stabilised. (Local Government),xiii) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lots shown on the approved plan of subdivision. This may require, where necessary, the provision of land (for plant and works), easements and/or the payment of financial contributions towards infrastructure. (Water Corporation),xiv) Arrangements being made to the satisfaction of the WAPC and in accordance with the specification of Western Power for the provision of an underground electricity supply service to the lot(s) shown on the approved plan of subdivision. Only one point of supply per freehold (green title) lot shall be provided and any overhead power supply shall be converted to underground. (Western Power),xv) The transfer of land as a Crown Reserve, free of cost, to Western Power for the provision of electricity supply infrastructure. The specific location and area of land required is to be to the satisfaction of the local government and Western Power. (Western Power),xvi) Street lighting to be installed on all new subdivisonal roads to the satisfaction of the WAPC. (Local Government),xvii) An area(s) of land of at least 2026 square metres in area, in a position to be agreed with the WAPC, being shown on the Deposited Plan as a "Reserve for Recreation" and vested in the Crown under s 152 of the Planning and Development Act 2005 (WA), such land to be ceded free of cost and without payment of compensation by the Crown.,xviii) A Drainage and Nutrient Management Plan being prepared and implemented to the satisfaction of the local government. (Local Government),xix) Measures being taken to the satisfaction of the WAPC to ensure the identification and protection of any vegetation on the site worthy or retention prior to commencement of site works. (Local Government),xx) All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation. (Local Government),xxi) A section 70A notification, pursuant to the Transfer of Land Act 1983 (WA), is to be placed on the Certificate of Title of the proposed lot(s) at the applicant's cost advising that reticulated sewerage connection is not available to this lot and the lot must be serviced by an Alternative Domestic Wastewater Treatment System with an adequate phosphorus retention capacity, as determined by the Department of Water. The base of the system or the modified irrigation area shall be the required distance above the highest known water table. (Local Government),xxii) The applicant/owner shall provide a geotechnical report of the site's physical characteristics that demonstrates that the proposed method of wastewater effluent disposal can be accommodated on site without detrimental impact on groundwater quality. (Department of Water),xxiii) The applicant/owner shall prepare and implement a Wastewater Management Plan to the satisfaction of the Department of Water. The management plan shall address the issue of on-site wastewater disposal and nutrient management to ensure that there is no detrimental impact on groundwater quality. The plan should include the proposed wastewater disposal method and technical justification that nutrient leaching will not affect groundwater quality. (Department of Water) |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : DIMASI and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 200 MEMBER : MS M CONNOR (MEMBER)
- MR B HUNT (SENIOR SESSIONAL MEMBER)
MR P CURRY (SESSIONAL MEMBER)
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision to create seven freehold lots EPA advise that proposal should be treated as "Not Assessed Public Advice Given" Land zoned "Urban" in MRS and "Residential" in TPS 2 Rural Strategy designates subject land as "Rural Living 'A'" and identifies the need for structure planning for the Serpentine locality Located within the Peel-Harvey Plain Catchment
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Whether structure planning is required as a prerequisite to further residential subdivision in this locality Issues relating to density, water management, road patterns, POS and further fragmentation of land Precedent
Legislation:
Environmental Protection Act 1986 (WA), s 38
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 25, s 135, s 138, s 253, s 241
Residential Design Codes of Western Australia (2002)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2, cl 1.6(b), cl 5.3
Town Planning and Development Act 1928 (WA), s 26(1)(ab), s 5AA
Result:
The application for review is allowed
The subdivision approval is granted subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr M Hardy
Respondent : Ms F Seaward
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Goldin & Anor v Minster for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117
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Summary of Tribunal's decision
1 Mr Dimasi applied to the State Administrative Tribunal for review of the decision of the Western Australian Planning Commission refusing approval to subdivide Lot 94 Tonkin Street, Serpentine into seven freehold lots, including a new road to service three of the proposed lots.
2 The subject land is zoned "Urban" in the Metropolitan Region Scheme and "Residential" with a density coding of R5 under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2. In the Shire of Serpentine-Jarrahdale Rural Strategy, the subject land is identified as "Rural Living 'A'", which envisages a variety of lot sizes ranging from 4000 square metres to one hectare. The Rural Strategy also designates an extensive area of the Serpentine locality, including the subject land, as "Subject to Future Structure Planning". There has been no attempt by the Shire of Serpentine- Jarrahdale to reconcile the strategic goals for this locality, as contained in the Rural Strategy, with the statutory planning framework.
3 The principal issue for consideration in these proceedings was whether structure planning was required as a prerequisite to further residential subdivision in this locality.
4 The Tribunal determined that structure planning for this area was generally desirable given the anticipated pressure for development within this locality, together with the fragmentation of ownership and the level of infrastructure needed to service the anticipated demand. However, the Tribunal considered that if it could be demonstrated that the proposed subdivision would not prejudice the future orderly planning of the area without structure planning, the Tribunal would be prepared to support the proposed subdivision.
5 The Tribunal considered the impacts of all the identified issues that the respondent contended necessitated structure planning prior to subdivision, that being water management, increase in densities, road patterns, POS, and the further fragmentation of land. The Tribunal was not persuaded in this instance, that the future orderly planning of the area would be prejudice by the subdivision of the subject land prior to structure planning being undertaken for the locality. However, by approving this application the Tribunal was not indicating that structure planning is not necessary prior to further subdivision of "Residential" zoned land in the
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- Serpentine town site, as each case would need to be considered and determined on its own merits.
Introduction
6 Robert Dimasi (applicant), the owner of Lot 94 Tonkin Street, Serpentine (subject land) made application to the Western Australian Planning Commission (respondent), on 3 November 2004, for approval to subdivide the subject land to create seven freehold lots, consisting of six lots of between 2170 square metres and 2188 square metres, and one lot of 4377 square metres and a 16 metre wide road (the proposed subdivision) (see Attachment A). The proposed 4377 square metre lot is intended to accommodate the existing dwelling.
7 The application for review arises from a notice of default lodged by the applicant on 28 February 2006, against the respondent's failure to determine the proposed subdivision.
8 On 3 March 2006, the applicant made application under s 26(1)(ab) of the Town Planning and Development Act 1928 (WA) (TPD Act) which enables review where a notice of default has been given. Given that the Planning and Development Act 2005 (PD Act) repealed the TPD Act in April 2005; the Tribunal proceeded as if the application had been made under s 253 of the PD Act.
9 The respondent, on 10 April 2006, referred the proposed subdivision to the Environmental Protection Authority (EPA) pursuant to s 38 of the Environmental Protection Act 1986 (WA). The EPA subsequently advised on 13 June 2006 that the proposal should be treated as "Not Assessed – Public Advice Given". That decision was made on the basis that the likely environmental impacts were not so severe as to warrant formal environmental assessment.
Subject land
10 The subject land is more particularly described as Lot 94 on deposited Plan 230311 comprised in Certificate of Title Volume 1389 Folio 600 andis 2.0260 hectares in area.
11 The subject land is located on the south-eastern corner of Tonkin Street and Lefroy Street. Lot 94 is rectangular in shape with a 117.48 metre frontage to Lefroy Street and 172 metres along the Tonkin Street frontage. The subject land contains an existing dwelling and associated outbuildings which are situated adjacent to the Tonkin Street frontage. A dam is located within the south-west corner of
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- the lot. The site is predominantly cleared with isolated trees and boundary planting. The topography is relatively flat, sloping downwards slightly from north to south. There are three identified swale drains; a partial drain on the northern boundary of the subject land within the road reserve; a further swale drain that runs down the western boundary, also located in the road reserve; and another swale drain that runs continuously along the southern boundary of the subject land.
12 The subject land is located within the Serpentine town site, gazetted in 1893. The town site is situated 55 kilometres south-east of Perth and seven kilometres south of the Mundijong town site.
13 The existing Serpentine town site is characterised by older housing generally on lots of 2000 square metres, but some being as small as 1000 square metres. Lots in the immediate vicinity of the subject land, to the south of Tonkin Street, are generally two hectares or greater and remain largely undeveloped. There are other lots to the south of Serpentine town site that are 4000 square metres in area.
Planning framework
14 The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Residential" with a density coding of R5 under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (TPS 2 or Scheme).
Regional
15 The respondent has prepared a number of planning documents relating to the subdivision of residential land for the purpose of exercising the power of the WAPC under s 135 and s 138 of the PD Act to approve a plan of subdivision. These are as follows:
16 Statement of Planning Policy No 1-State Planning Framework Policy (SPP1) unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision-making on land use, subdivision and development in Western Australia. It informs decision-makers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decision-making across all spheres of planning. SPP1 is an approved statement of planning policy prepared under s 5AA of the TPD Act and continues in force as a State planning policy under the PD Act: s 25. Under s 241 of the PD Act, the Tribunal is required to have due regard to
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- any State planning policy which may affect the subject matter of an application for review.
17 The plans, policies and strategy that form the State Planning Framework are listed in Part B of SPP1. The following policies and strategies listed in SPP1 are relevant in the consideration and determination of this matter:
• Statement of Planning Policy No 2 – Environment and Natural Resources Policy (SPP2);
• Statement of Planning Policy No 2.1 – The Peel-Harvey Coastal Plain Catchment (SPP2.1);
• Statement of Planning Policy No 3 – Urban Growth and Settlement (SPP3); and
• Policy No DC 1.1 – Subdivision of Land – General Principles (DC1.1)
18 SPP2 provides a broad state level planning policy associated with the protection and management of environment and natural resources. It defines the principles and considerations that represent good and responsible planning in terms of environment and natural resource issues within the framework of the State Planning Strategy. The policy considers sustainability in terms of the natural environment and resources and sets out the key principles of how this can be achieved with environmental and natural resource issues. An objective of SPP2 is to integrate environmental and natural resource management with broader land use planning and decision-making.
19 Clause 5.1 of SPP2 set outs general measures that should be considered in planning decisions relating to matters that could have an impact on the environment and other natural resources. More particularly, cl 5.2 identifies Water Resource issues that should be addressed. SPP2 is supplemented by more detailed planning policies, of particular relevance is SPP2.1, as the subject land is located within the Peel-Harvey Coastal Plain Catchment Area.
20 One of the objectives of SPP2.1 is to ensure that land use changes within the catchment are controlled so as to avoid and minimised environmental damage. Another objective is to prevent land uses likely to result in excessive nutrient export into the drainage system. Clause 5.5 requires that subdivision proposals make provision for a drainage system
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- which maximises the consumption and retention of drainage on site and, as provided for in SPP2, should be achieved through water sensitive urban design approaches. Further, cl 5.7 provides that small-scale subdivisional developments with alternative wastewater treatment and effluent disposal systems may be considered provided that it be demonstrated that the proposed alternative systems or site modifications remove any adverse effects on public, health, water resources or the environment while not detrimentally impacting on the character of the area.
21 Bayley Environmental Services, environmental consultants engaged by the applicant, prepared a report on the "Land Capability for On-Site Effluent Disposal". This report was subsequently considered by the Health Department of Western Australia (HDWA) and in correspondence dated 22 December 2006, the HDWA advised the respondent that it had no objection to the subdivision as "the on-site disposal of wastewater is considered achievable on the lots proposed." The respondent accepted that on-site effluent disposal was not at issue, however, pressed the issue that incremental development could have wider implications on water management in the Serpentine locality and therefore the proposed subdivision was contrary to SPP2 and SPP2.1.
22 SPP3 is a broad sector policy that sets out the principles and considerations which apply to planning for urban growth and settlement in Western Australia. The overall aim of the policy is to facilitate sustainable patterns of urban growth and settlement by setting out the requirements of sustainable settlements and communities and the broad policy in accommodation growth and change. The objectives of the SSP3 are:
"• To promote a sustainable and well-planned pattern of settlement across the State, with sufficient and suitable land to provide for a wide variety of housing, employment, recreation facilities and open space.
• To build on existing communities with established local and regional economies, concentrate investment in the improvement of services and infrastructure and enable the quality of life in those communities.
• To manage the growth and development of urban areas in response to the social and economic needs of the community and in recognition of relevant climatic,
- environmental, heritage and community values and constraints.
- • To promote the development of a sustainable and liveable neighbourhood form which reduces energy, water and travel demand whilst ensuring safe and convenient access to employment and services by all modes, provides choice and affordability of housing and creates an identifiable sense of place for each community.
• To coordinate new development with the efficient, economic and timely provision of infrastructure and services."
23 SPP3 envisages that the State Planning Framework will provide the direction for the future pattern of urban growth and settlements and the basis for decision-making on urban development proposals. Regional and local planning strategies are integral to the planning framework in providing guidance on future direction. SPP3 also considers that the orderly planning of urban growth and settlement should be facilitated by structure plans. Furthermore, SPP3 identifies that future metropolitan growth will be planned and managed in accordance with Network City.
24 In relation to implementation, SPP3 states that:
"[i]mplementation of this policy will be through related statement of planning policy, regional strategies, local planning strategies and regional and local planning schemes. Implementation will also occur through the day-to-day process of decision-making on … subdivisions and development applications, and the action of other State agencies in carrying out their responsibilities."
25 DC1.1 sets out the general principles for determining applications for the subdivision of land which include:
• to control the subdivision of land within the framework of the relevant legislation and regulations;
• to ensure that the subdivision of land is consistent with SPP1 and relevant WAPC policies and plans;
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- • to ensure that all lots created have regard to the provisions of the relevant local government town planning scheme;
• to ensure that a comprehensive and co-ordinated approach to the subdivision of urban expansion area in metropolitan Perth … ;
• to ensure the subdivision pattern is responsive to the characteristics of the site and the local planning context; and
• to ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
26 Clause 3.3 of DC1.1 recognises structure planning as a process for developing a framework for the integrated subdivision and development of a major residential area, and is particularly useful for co-ordinating subdivision and development in areas of fragmented ownership.
Local
27 TPS 2 was gazetted in 1989. An objective of TPS 2 is "to zone land for the purposes described in the Scheme so as to promote the orderly development of the land by making suitable provisions for land use" (cl 1.6(b)). The scheme maps designated the subject land as "Residential" with a density coding of R5.
28 The Residential Design Codes of Western Australia (2002) (Codes) are incorporated into TPS 2 under cl 5.3 of the Scheme. The proposed lot sizes comply with the minimum site area per dwelling (2000 square metres) and frontage (30 metres) prescribed for the R5 coding under the Codes.
29 The Shire of Serpentine-Jarrahdale (the Shire or Council) prepared a Rural Strategy which was endorsed by the Shire and the respondent in 1994. The Rural Strategy states that "[it] is concerned primarily with detailed forward planning of rural areas to allow for development and growth, protect and appropriately use rural resources and preserve the character, heritage and natural features of the Shire". The Rural Strategy is unusual as it encompassed the whole of the municipality, which included land that was not zoned "Rural" under TPS 2. It was intended that the policies contained in the Rural Strategy would ultimately be translated into the Shire's town planning scheme.
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30 One of the universal objectives of the Rural Strategy is "to ensure that urban development has a nodal, village-urban form that maximises the use of existing services and infrastructures, in particular at existing towns and villages".
31 The Rural Strategy envisages some expansion of the existing town of Byford, Serpentine and Mundijong and states that:
"The existing town of Serpentine, villages of Jarrahdale and Keysbrook will remain as single development 'nodes' focused on their existing urban centres. They are to expand as distinct, tightly developed urban centres, servicing the needs of their local communities, and largely surrounding by rural lands."
32 It would appear from the maps that form part of the Rural Strategy that only portion of the land zoned "Residential" under TPS 2 within the Serpentine town site has been included in the "Town and Village" Policy area of the Rural Strategy and does not include the subject land.
33 The original maps were published in black and white and there is some uncertainty as to whether the subject land was shown within the "Rural Living 'A'" or "Rural Living 'B'" Policy area. This is of no consequence and is clarified in the 1996 review of the Rural Strategy, which clearly shows the land "Rural Living 'A'". There has been no change to the designation of the land in subsequent reviews.
34 Rural Living 'A' Policy areas envisage a variety of lot sizes in the range from 4000 square metres to about one hectare. This classification is inconsistent with the "Residential" zoning of the land under TPS 2, which permits a minimum site area per dwelling of 2000 square metres. There has been no attempted by the Shire to reconcile the strategic goals for the locality with the statutory framework.
35 Map 9 - "Development Staging Plan" identified the subject land in Stage 1 area, which estimates land for release within 5 years.
36 The Implementation Section of the Rural Strategy refers to Map 6 "Structure Plan Boundary", which identifies the Byford and Mundijong town sites. It would appear that the 2002 review of the Rural Strategy identified a considerable number of other areas subject to future structure planning. There was a further revision in the 2003 review which designated an extensive area of the Serpentine locality subject to future structure planning, including the subject land.
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The principal issue
37 The principal issue for consideration in this proceeding is whether structure planning is required as a prerequisite to further residential subdivision in this locality.
38 The respondent contended that as the subject land is located in an area of fragmented land ownership and within the Peel-Harvey Plain Catchment it is critical that structure planning precede subdivision to ensure the orderly and proper planning of the locality. The respondent argued that it is important that all growth and development promote sustainable and well-planned patterns of settlement and that managing growth ensures that the appropriate infrastructure and other facilities are available in the area. Structure planning for this locality would define the urban expansion limits of the town site, address issues of urban form by considering densities, dwelling types and the mix of uses, as well as resolve infrastructure issues relating to stormwater management, effluent disposal, drainage, road patterns and recreation. The respondent asserted that without such planning in place the co-ordinated development of nearby landholdings and the town site would be compromised.
39 The respondent argued that the established planning framework both at a State and local level supported the need for structure planning in this locality to ensure the orderly and proper planning of the area (relying on SPP3; DC1.1; and Rural Strategy). The respondent conceded that there was some degree of inconsistency and confusion between the statutory and strategic regime in place at the local level, which it asserted only highlighted the need for structure planning to ensure that the area was developed in accordance with principles of orderly and proper planning. Ms Tothill, a senior planning officer with the Department for Planning and Infrastructure, was called by the respondent to give evidence. Ms Tothill considered that the designation of the Serpentine town site as "Subject to Future Structure Planning" in the Rural Strategy in the 2002/2003 review was a clear indicator of the "recognition of the need to plan for future urban areas, including ultimate size or extent of the town site, and to provide guidelines for orderly development having regard to servicing and environmental constraints."
40 She maintained that incremental subdivision of the nature proposed has the potential to significantly increase residential development in the town site, which could prejudice the overall planning of the locality and hinder future infill developments should reticulated sewer become available in the future. It was clear from the evidence of both Ms Tothill
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- and Mr Daymond, a planning officer of the Shire of Serpentine-Jarrahdale, that both planning authorities envisaged that the future development/subdivision of the locality, subject to the provision of services, would be at higher densities than that provided for in the Rural Strategy or TPS 2.
41 The Tribunal is cognisant that the town site, inclusive of the subject land, has been zoned "Urban" in the MRS since its inception in 1963 and "Residential" with a permitted density of R5 since its gazettal in 1989. There has been some awareness by the authorities for some time that structure planning is desirable within this locality. Although the Shire's strategic document supports this proposition the Shire has failed to take any further steps to reflect this approach within the statutory framework.
42 SPP3 promotes the use of structure plans as an instrument to facilitate orderly planning of urban growth and settlement. Furthermore, DC 1.1 advocates the use of structure plans for co-ordinating subdivision and development in areas of fragmented ownership, generally implemented through the local planning scheme. Presently, the statutory planning framework does not require structure planning to be undertaken prior to subdivision. It is noted that the Rural Strategy envisages the preparation of a structure plan for the Serpentine town site; however, this strategic objective has not been given effect to in the local planning scheme. The Tribunal is also cognisant that any increase in density from the R5 coding necessitates the provision of sewer.
43 The Tribunal considers that structure planning for this area is generally desirable given the anticipated pressure for development within this locality, together with the fragmentation of ownership and the level of infrastructure needed to service the demand. However, if it can be demonstrated that the proposed subdivision will not prejudice the future orderly planning of the area without structure planning, the Tribunal would be prepared to support the proposed subdivision.
Issues identified necessitating structure planning
44 The respondent argued that issues such as stormwater management, drainage, effluent disposal, road patterns, densities and recreation were matters that require structure planning to facilitate a co-ordinated approach to development.
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Waste water management
45 Although the respondent accepted that on site effluent disposal was not an issue for the subject land, it was concerned that incremental development could have wider implications on water management within the locality. The respondent considered that in order to minimise the impact of development of this area on the environment, a coordinated approach was needed in the management of water and that this should be applied to the whole catchment area and not merely to isolated lots. The respondent asserted that incremental subdivision placed reliance upon the established drainage system and prejudiced future implementation of water sensitive urban design principles as a part of any intensification of development in the locality.
46 The EPA determined that that the proposal should be treated as "Not Assessed – Public Advice Given". In the advice given, the EPA considered that the proposal itself did not have a significant impact on the environment warranting assessment but was particularly concerned about the cumulative environmental impacts of further subdivision in the Serpentine town site area. The EPA considered that small scale un-sewered subdivisions have the potential to cause continued environmental degradation of the Peel-Harvey Estuary, fragment future planning of the area and affect the quality of a future public drinking water supply. The advice included the following statement about drainage:
"Whilst SPP2.1 provides for small scale subdivisional development, the EPA is concerned that the incremental subdivision of the area in the absence of proper land planning will impede the management of environmental issues, both on and off site. In particular, surface and groundwater quality and quantity which are significant environmental issues. The development of a total water cycle management approach including implementation of best practice water sensitive urban design (WSUD) will be necessary for the future development of the area. This approach is consistent with the policy measures of the EPA's draft Guidance Statement 33: Environmental Guidance for Planning and Development (2005)[,] the draft SPP 2.9 Water Resources and principles of the Department of Environment's Stormwater Management Manual for Western Australia.
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- To implement WSUD, it is necessary that appropriately located land is available to enable stormwater to be integrated into the landscape, usually through the development of vegetated swales and constructed wetlands located within road reserves and lineal area of public open space. Incremental subdivision will impact the ability of WSUD to be implemented."
47 The applicant led evidence from Mr Maiorana, who is a town planning consultant. Mr Maiorana referred to the reports prepared by Bayley Environmental Services which he considered indicated that a suitable drainage management strategy for the site could be integrated on a broader scale with the surrounds.
48 More specifically, the "Fill and Drainage Requirements" report prepared by Bayley Environmental Services states:
"The drainage in the vicinity of Lot 94 can be briefly summarised as follows:
• Regional drainage is northerly towards the Serpentine River.
• Local drainage is south-westerly towards a local low point.
• Site drainage is southerly towards the site boundary and then west to the road side drain on Lefroy Street.
The closest defined natural drainage line is a poorly-defined creek line about 280m south-east, which flows north-east and then north through paddocks to the Serpentine River. This drain appears (from regional 5m topographic contours) to be at an elevation of about 32.5m where it passes closest to Lot 94.
A regional drainage strategy would logically realign the eastern drainage line into the road reserve located about 170m east of Lot 94. Drainage for Lot 94 and adjacent lots would logically be directed either into this drainage line or into the low point to the west. Both of these scenarios are well provided for by the proposed road reserve along the southern boundary of Lot 94.
Any filling of Lot 94 would be expected to assist in the overall drainage of the neighbourhood, as it would increase the degree of fall from the lot to the district drains."
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49 The respondent did not dispute the claims made in the "Fill and Drainage Requirements" report. The evidence is that there are alternatives available to resolving this issue.
50 Mr Maiorana, during the hearing, indicated that detailed examination of drainage had not been undertaken as the focus had been directed to the technical issue relating to on-site effluent disposal. He was of the view that it was possible to address this issue as a condition of subdivision and that it was not necessary to rely on broad scale planning through a structure plan to arrive at a satisfactory and suitable drainage strategy. He envisaged the drainage strategy addressing site specific issues as well as containing strategies that would have regard for the broader drainage management issues. He considered that this approach would satisfactorily respond to the density being proposed and that a more sophisticated drainage management strategy could be implemented if higher densities were proposed through the structure planning process. He contended that the proposed subdivision did not prohibit or compromise the ability to achieve the end aims.
51 The Tribunal is satisfied that at the present densities, as designated in the Scheme, an appropriate Drainage and Nutrient Management plan can be prepared and implemented that satisfactorily addresses the potential impacts of the site and the surrounding drainage system and catchment(s) using WSUD principles, thereby satisfying the objectives of SPP2 and SPP2.1 and the public advice given by the EPA on this proposal. However, the Shire has indicated, although not formally stated in any strategic or statutory documents, a desire to increase the density of residential development within this locality to R20-R30 range. Such a change will no doubt have significant implications on the orderly and proper planning of the area and necessitate structure planning to ensure a co-ordinated approach. The question therefore is: knowing that there is an intention to increase density within this area should the proposed subdivision, which is otherwise compliant with the statutory framework, be refused on the basis that it may impede future water management within the locality?
52 The Tribunal is this instance is not persuaded that there is sufficient cause for concern to answer that question in the negative, as the evidence here suggests there are suitable alternative design options available that can be considered during any future structure planning process and that the design of the subdivision will not impinge on these alternatives and as such, is not considered toprejudice the future orderly planning of the area.
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POS and road patterns
53 In relation to the provision of public open space (POS) and roads, the respondent argued that an integrated approach was needed to ensure that development/subdivision proceeded in accordance with the future plans for the locality and that in the absence of this plan the proposed subdivision would prejudice the orderly planning and provision of POS and agreement to the overall road pattern.
54 It is understood that the future provision of POS in this locality would be considered in the context of multi-use corridors which would integrate the multiple purposes of water quantity and quality management, nature conservation and ecological function, recreational and educational opportunities (refer to LLP6 Water Sensitive Design). The respondent argued that without structure planning preceding subdivision, the ability to implement this approach throughout the locality would be jeopardised.
55 The applicant argued that the overall road pattern has already been established in this part of the Serpentine town site and submitted a plan which demonstrated how the proposed lots could be further subdivided in the future, if permissible, in the context of existing street block. In regard to POS, the applicant submitted that a cash-in-lieu contribution was entirely appropriate in this instance given that there was no significant environmental feature within the subject land that would require the provision of land and that there were recreational areas in the near vicinity of the subject land. These were identified as the Serpentine Primary School, which has extensive areas of developed open space and the Serpentine recreation centre and ground, which is located approximately 300 metres from the subject land.
56 The Tribunal is supportive of the multi-use corridor approach and agrees that subdivision of the land in the locality should not prejudice the implementation of such an approach. The evidence here indicates that although there may be some requirement within the street block for a multi-use corridor (refer to LPP6 Water Sensitive Design), the subject land does not appear to be affected and, as such, the proposed subdivision of the subject land would not prejudice the future implementation of multi-use corridors within the locality. Furthermore, the Tribunal is not convinced that the provision of POS within the subject land or a cash-in-lieu contribution, on its own, would prejudice the future and orderly planning of the area.
57 The applicant's plan of possible future subdivision of the proposed lots demonstrates the potential for further subdivision with minimal
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- impact on the future road patterns within the street block and/or the locality. The Tribunal does not consider the subdivision warrants refusal on this aspect.
Collective consideration
58 Considering the possible impacts of all the identified elements collectively, that being water management, increase in densities, road patterns, POS, and further fragmentation of land, the Tribunal is not persuaded in this instance that the future orderly planning of the area would be prejudiced by the subdivision of the subject land prior to structure planning being undertaken for the locality. By approving this application, the Tribunal is not indicating that structure planning is not necessary prior to further subdivision of "Residential" zoned land in the Serpentine town site. All it is saying is that in this case, based on the evidence and arguments presented relating to this piece of land, subdivision as proposed can precede structure planning being undertaken without prejudicing the future orderly planning of the locality.
Precedent
59 The respondent argued there were a least 12 other similar properties in the area with a similar coding that could potentially be subject to the same form of subdivision. The respondent contended that approval of this subdivision would create an undesirable precedent for similar subdivision of urban land in the Serpentine town site.
60 The applicant submitted that the application must be considered on its merits and that there was nothing in the evidence which says that on a meritorious basis the application must be refused.
61 Precedent was considered by the Tribunal, in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, in Nicholls and Western Australian Planning Commission (2006) 149 LGERA 117 at [71]-[75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin & Anor v Minster for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
"(1) That the proposed development or subdivision is not in itself unobjectionable; and
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- (2) That there is more than a mere chance or possibility that there may be later undistinguishable applications."
62 For precedent to be a relevant factor both tests must be satisfied. In this instance, for reasons discussed earlier, the proposed subdivision is unobjectionable. Therefore, the adverse precedent argument is not a relevant consideration in this case as each subsequent case will be considered and determined on its own merits.
Conditions
63 For the above reasons, the Tribunal considers that approval for the subdivision of Lot 94 Tonkin Street, Serpentine as shown on Plan Ref: 04/328/01 as prepared by Dykstra Planning, is warranted.
64 As required by the Tribunal, the respondent prepared "without prejudice" conditions (draft conditions) to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriated. The suggested 21 conditions were accepted by the applicant.
65 However, the draft conditions had not been referred to the EPA for comment and as such the Tribunal forwarded the draft conditions to the EPA for comment. The EPA recommended modification to draft condition 21 and an additional two conditions. Both parties agreed with the suggestions made by the EPA.
Orders
66 For the above reasons, the Tribunal makes the following orders:
1. The application for review is allowed.
2. Approval is granted for the subdivision of Lot 94 Tonkin Street, Serpentine into seven freehold lots as shown on Plan Ref 04/328/01 prepared by Dykstra Planning, subject to the following conditions:
i) The lots not fronting an existing road being provided with frontage to a constructed road(s) which is connected by a constructed road(s) to the local road system with such road(s) being constructed and drained at the applicant/owner's cost. Alternatively, the
- application/owner may pay to the local government the cost of such road works, as estimated by the local government.
- ii) Street corners within the subdivision are to be truncated to the standard truncation of 8.5 metres. (Local Government)
iii) A temporary cul-de-sac head being designed and constructed to the satisfaction of the local government. (Local Government)
iv) Street intersections being designed and constructed to the satisfaction of the local government. (Local Government)
v) Arrangements being made with the local government for the upgrading of Lefroy Street and Tonkin Street where they abut the proposed lots. This should not be interpreted to imply that the WAPC requires the upgrading to be at the subdivider's expense alone but that this is a matter of negotiation between the subdivider and the local government. (Local Government)
vi) Construction drawing shall be submitted to, and approved by, the Shire of Serpentine-Jarrahdale prior to the commencement of site works. (Local Government)
vii) The applicant/owner is to provide a geotechnical report certifying that the land is physically capable of development prior to the commencement of site works. (Local Government)
viii) The land being filled and/or drained at the applicant's cost to the satisfaction of the WAPC and any easements and/or reserves necessary for the implementation thereof being granted free of cost. (Local Government)
- ix) The applicant providing a geotechnical report certifying that any filling or backfilling has been adequately compacted.
x) Suitable arrangements being made for connection of the land to the comprehensive district drainage system at the applicant/owner's coats. (Local Government)
xi) The land is to be provided with an adequate outlet drainage system at the applicant/owner's cost. (Local Government)
xii) The land being graded and stabilised. (Local Government)
xiii) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lots shown on the approved plan of subdivision. This may require, where necessary, the provision of land (for plant and works), easements and/or the payment of financial contributions towards infrastructure. (Water Corporation)
xiv) Arrangements being made to the satisfaction of the WAPC and in accordance with the specification of Western Power for the provision of an underground electricity supply service to the lot(s) shown on the approved plan of subdivision. Only one point of supply per freehold (green title) lot shall be provided and any overhead power supply shall be converted to underground. (Western Power)
xv) The transfer of land as a Crown Reserve, free of cost, to Western Power for the provision of electricity supply
- infrastructure. The specific location and area of land required is to be to the satisfaction of the local government and Western Power. (Western Power)
- xvi) Street lighting to be installed on all new subdivisonal roads to the satisfaction of the WAPC. (Local Government)
xvii) An area(s) of land of at least 2026 square metres in area, in a position to be agreed with the WAPC, being shown on the Deposited Plan as a "Reserve for Recreation" and vested in the Crown under s 152 of the Planning and Development Act 2005 (WA), such land to be ceded free of cost and without payment of compensation by the Crown.
xviii) A Drainage and Nutrient Management Plan being prepared and implemented to the satisfaction of the local government. (Local Government)
xix) Measures being taken to the satisfaction of the WAPC to ensure the identification and protection of any vegetation on the site worthy or retention prior to commencement of site works. (Local Government)
xx) All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation. (Local Government)
xxi) A section 70A notification, pursuant to the Transfer of Land Act 1983 (WA), is to be placed on the Certificate of Title of the proposed lot(s) at the applicant's cost advising that reticulated sewerage connection is not available to this lot and the lot must be serviced by an Alternative
- Domestic Wastewater Treatment System with an adequate phosphorus retention capacity, as determined by the Department of Water. The base of the system or the modified irrigation area shall be the required distance above the highest known water table. (Local Government)
- xxii) The applicant/owner shall provide a geotechnical report of the site's physical characteristics that demonstrates that the proposed method of wastewater effluent disposal can be accommodated on site without detrimental impact on groundwater quality. (Department of Water)
xxiii) The applicant/owner shall prepare and implement a Wastewater Management Plan to the satisfaction of the Department of Water. The management plan shall address the issue of on-site wastewater disposal and nutrient management to ensure that there is no detrimental impact on groundwater quality. The plan should include the proposed wastewater disposal method and technical justification that nutrient leaching will not affect groundwater quality. (Department of Water)
- I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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Attachment A
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