Eastwell and ORS and City Of Swan

[2007] WASAT 173

EASTWELL & ORS and CITY OF SWAN [2007] WASAT 173

Last Update :10/07/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 173
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:443/2006	Heard:	4 APRIL 2007
Coram:	MR J JORDAN (MEMBER)	Delivered:	03/07/2007
No Pages:	24	Judgment Part:	1 of 1
Result:	The application is dismissed
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : EASTWELL & ORS and CITY OF SWAN [2007] WASAT 173 MEMBER : MR J JORDAN (MEMBER) HEARD : 4 APRIL 2007 DELIVERED : 3 JULY 2007 FILE NO/S : DR 443 of 2006 BETWEEN : RUSSELL GRANT EASTWELL

VANESSA SCARAMOZZINO
BRYAN JOHN DALE
Applicants

AND

CITY OF SWAN
Respondent

Catchwords:

Town planning - Development application - Single house - Land designated both "Landscape" zone and "Special Rural" zone in Town Planning Scheme - Conflict of provisions of zonings - Subdivision guide plan designation of private recreation (tennis court) - Lot smaller than standard lot size for zone - Impact of proposal on amenity of locality

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Legislation:

City of Swan Town Planning Scheme No 9 (WA), cl 1.7, cl 1.11, cl 2.2.3, cl 2.2.3(b), cl 2.3, cl 2.3.1.3, cl 2.3.6.1, cl 2.3.6.4, cl 2.4.6.1, cl 7.2.3, cl 8.2.1, cl 8.2.1.6, cl 8.2.6, cl 8.2.6.1, cl 8.2.6.2, cl 8.2.6.2(e), cl 8.2.6.3, cl 8.2.6.4, cl 8.2.6.7, Table 3(B), Appendix 7 Special Rural Zone 8 cl 1, cl 2(a), cl 2(b), cl 3(c), cl 7.2(a), cl 7.3(c)
Planning and Development Act 2005 (WA), s 252(1)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicants : Mr M Hardy
Respondent : Mr C Slarke

Solicitors:

Applicants : Hardy Bowen
Respondent : McLeods

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

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Lot 31 is located on the corner of Campersic Road and Connemara Drive at Brigadoon in the City of Swan. A subdivision guide plan prepared for Brigadoon identified what is now Lot 31 as land to be both given up to the Crown as a reserve for recreation and as private recreation (tennis court). In 1989, the Western Australian Planning Commission approved the subdivision of Stage 2 of Brigadoon, but the approval did not require Lot 31 to be given up and it was created as a freehold lot. Lot 31 had a tennis court built on it and as other lots were sold, new residents made an agreement with the subdivider to use the tennis court.

2 In 1996, the City of Swan rezoned this locality of Brigadoon from "Special Rural" to "Landscape". For reasons not clear, the Special Rural zone requirements that previously related to Lot 31 were not deleted from the town planning scheme. No steps have ever been taken to acquire Lot 31 for public open space and under the Landscape zone, the private recreation use became non-conforming and it has now ceased.

3 Lot 31 is no longer owned by the original subdivider. In 2006, an application was made to build a house on Lot 31. The City of Swan refused the application because it considered that the change of use from private recreation (tennis court) to residential was inconsistent with the intent of the subdivision guide plan and that the house would negatively impact on the amenity of the locality.

4 The applicants argued that a house was a permitted use under the Landscape zoning and that the development would not have an adverse impact on the amenity of the locality.

5 The Tribunal found that the town planning scheme provided for the development of a house on Lot 31, but that the development proposed could not be supported because it did not sufficiently address the development requirements of the town planning scheme. The application for the house before the Tribunal was refused.

Introduction

6 These proceedings involve an application pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the City of Swan (respondent or Council) made on 29 November 2006 to refuse an application for approval to develop a

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single house on Lot 31 Campersic Road, corner Connemara Drive, Brigadoon (Lot 31 or site). The application for review was filed by Mr R Eastwell and Ms V Scaramozzino who made the application to the Council for approval to build the house, and who are negotiating to buy Lot 31 from Mr B Dale.

Lot 31 and the locality

7 Lot 31 is within the Brigadoon Estate (Brigadoon) at the north-eastern edge of the Swan Valley. Brigadoon is situated at the top of the Darling Scarp. Originally it also included areas of the scarp face and the flood plain of the Swan River, but in the late 1980s much of this land was transferred to the Western Australian Planning Commission (Commission) to become Regional Open Space.

8 Lot 31 is essentially a trapezoid shaped lot of 7557 square metres at the north-west corner of the junction of Connemara Drive and Campersic Road, the main access road to the locality. The south-western boundary of Lot 31 has a frontage of 92.4 metres to Campersic Road and the south-eastern boundary has a 102 metre frontage to Connemara Drive. There is a corner truncation of 14.1 metres. The north-west boundary is 45 metres and abuts a public open space reserve while the north-eastern boundary of 95 metres is shared with Lot 299, a 1.63 hectare lot containing a single house.

9 On the site about 14 metres from the boundary with Lot 299 and between 30 metres and 15 metres from Connemara Drive is a former hard surface tennis court (the fence has been removed). Between the tennis court and Lot 299 is a gravel car park with a driveway from Connemara Drive. Lot 31 slopes gently from north and east to the south and in the south-west corner is a dam, adjacent to which was previously picnic tables. A drainage easement extends across the south-eastern edge of Lot 31 from near the truncation to the open space reserve. Vegetation is mostly concentrated in the south-western corner.

10 The public open space reserve is about 45 metres wide and extends from Lot 31 to the north-west adjacent to Campersic Road. It includes a winter creek, and about 550 metres to the north-west, this open space significantly widens and branches to follow along other water courses, one of which is beyond the residential lots to the north of Lot 31.

11 Lots to the north-east on the other side of Connemara Drive and to the south across Campersic Road are all of between 1.5 hectares and about

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3 hectares with vegetation of varying density and with most containing a single house. The fences between the lots are simple post and wire.

Proposed development

12 On 11 August 2006, Mr Eastwell and Ms Scaramozzino applied for approval to commence the development of a single storey single house on Lot 31. A copy of the development application filed with the Tribunal did not include elevations and the site plan was not to scale and was partly hand drawn. The house would be in the location of the former tennis court setback at its closest point, it is estimated, about 20 metres from Connemara Drive. Between the proposed house and the boundary of Lot 299 to the north on part of the former gravel car park would be a 54 square metre shed, and adjacent to that boundary, the on-site effluent disposal system. Vehicle access to the new development would be via the existing car park crossover from Connemara Drive about 8 metres from the northern boundary.

Planning framework

13 Lot 31 is zoned "Rural" under the Metropolitan Region Scheme (MRS). Under City of SwanTown Planning Scheme No 9 (TPS 9 or Scheme) Lot 31 is zoned "Landscape". TPS 9 includes provisions relevant to the determination of applications for approval to commence development in the Landscape zone. These are further identified below in the discussion on the issues.

14 TPS 9 also includes Appendix 7 "Special Rural Zones – Provisions Relating to Specified Area". Within Appendix 7 is "Special Rural Zone No 8 – Swan Valley Special Rural and Recreation" (SRZ 8). The first column of SRZ 8 lists the specified area of this Special Rural Zone and included is Swan Location 2. Lot 31 is within Swan Location 2. The SRZ 8 provisions include subdivision and development controls.

15 The unusual situation of two different and in parts conflicting sets of provisions in TPS 9 referring to or being relevant to Lot 31 is the result of changes that have been made to TPS 9 since the 1980s.

16 In the early to mid-1980s Brigadoon was within SRZ 8, provisions for which were contained in Sch 7 of TPS 9. In September 1989, Amendment 45 to TPS 9 was gazetted. This amended some parts of the text of SRZ 8 and included reference to an endorsed subdivision guide plan which is Subdivision Guide Plan 8A (SG Plan 8A). A brochure put into evidence showed Brigadoon as being in six stages. Stage 1 to the

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south of Lot 31 appears to have been approved for subdivision during the 1980s. SG Plan 8A covered Stages 2 to 6 and included lots with building envelopes and roads. Also shown were areas identified in a key as:
• "Area A to be transferred to the SPC" (the Commission). This area was marked "Reserve for Recreation";
• "Area B to be transferred to the Council"; and
• "Area C to be transferred to the Crown", also marked "Reserve for Recreation". Area C was shown crosshatched and was odd shaped as it generally followed drainage lines between the lots at the top of the scarp.

17 The land that was to become Lot 31 was at the extremity of one branch of Area C was crosshatched, but also with "private recreation (tennis court)" written on it.

18 In October 1989, the Commission granted subdivision approval for Stage 2, which reflected the lot pattern on SG Plan 8A, but also included the creation of Lot 31. Condition 14 of the approval read:

"The portions of the subject land depicted as Area 'C' on the plan dated October 3 1989 (attached), being shown on the Diagram or Plan of Survey as a 'Reserve for Recreation' vested in the Crown under [s] 20A of the Town Planning and Development Act (as amended), with such land being ceded free of cost and without any payment of compensation by the Crown."

19 The land shown on the plan, dated 3 October 1989, as required to be given up did not include Lot 31. As a result of this approval, Lot 31 was created as a separate freehold lot zoned "Special Rural", but also shown on SG Plan 8A crosshatched the same as land in Area C, now a reserve for recreation, and with the private recreation (tennis court) designation. The deposited plan for the lots in Stage 2, which includes Lot 31, is dated 1992 and the creation of the titles now appears to be completed. Stages 3 to 6 have yet to be subdivided.

20 In 1993, the respondent adopted the Gidgegannup Rural Strategy. This identified Stages 2 to 6 of Brigadoon as within Landscape 4 Precinct. The principal objective was to retain high visual amenity and vegetation along the Darling Scarp ridge forming a link between John Forrest and Walyunga National Parks. Further planning identified in this strategy was to place precinct 4 into a Landscape Protection zone.

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21 In response to the Gidgegannup Rural Strategy, TPS 9 was amended and the amendments included amendment 174 gazetted in February 1996. This amendment rezoned Stages 2 to 6 of Brigadoon from "Special Rural" to "Landscape". The amendment deleted three Special Rural zones from Sch 7 of TPS 9, but left in Appendix 7 SRZ 8 with its reference to specified land which included Lot 31.

22 Dealing first with the Landscape zone, TPS 9 includes Part VIII – Rural Development Provisions in which provisions refer to the subdivision and development in the Landscape zone, particularly cl 8.2.6 and the following subclauses. Provisions relevant to the proposed development are addressed in the discussion of the issues below. At cl 8.2.6.1 the purpose and intent of the Landscape zone is given as:

"[T]o ensure that development is compatible with and will enhance the landscape and environmental qualities of the locality".

23 TPS 9 includes zoning table 3(B). Under the Landscape zone the use class "dwelling: single house" is shown as a "P" use. Pursuant to cl 2.2.3, a "P" use is a use that is permitted. Clause 2.3 of TPS 9 is titled "Development and Use of Land". Subclause 2.3.6.1 states:

"'P' uses – if an application under this Scheme for approval to commence or carry out any development involves a 'P' use, the Council shall not refuse the application by reason of the unsuitability of that use, but notwithstanding that the Council may in its discretion impose conditions upon the approval to commence or carry out the use, and if the application proposes or necessarily involves any building or other work, the Council upon considering that application or other work may exercise its discretion as to the approval or refusal and the conditions to be attached to the proposed development."

24 Zoning table 3(B) shows "Recreation: Private" and "Recreation: Public" with no designation for the Landscape zone. This is stated to mean a "not permitted use" and it is required that these uses must be refused development approval.

25 Turning next toSRZ 8, Part VIII – Rural Development Provisions of TPS 9 also includes at cl 8.2.1 provisions relevant to Special Rural zones. Zoning table 3B, under Special Rural states in respect of the listed use classes "As per Appendix [No 7]". In Appendix 7 under SRZ 8, which is relevant to this matter, it provides that:

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"1) Subdivision of Special Rural Zone No 8 shall be in accordance with the Subdivision Guide Plan as endorsed by the Shire Clerk.
2) (a) The following uses are permitted within the Special Rural Zone – Swan Valley Special Rural and Recreation – 'P':
• Dwelling House
(b) The following uses are not permitted unless Council gives its approval in writing – 'AA':
• Home Occupation
• Private Recreation
• Public Assembly
• Public Recreation
• Public Utility
• Rural Pursuit
• Stable
• Veterinary Hospital
(c) ...
3) ...
(c) The land depicted on the Subdivision Guide Plan No 8A as Area 'C' being transferred free of cost to the Crown for revesting in Her Majesty as of Her Former Estate for the purposes of Reserve for Recreation.
… "

26 The respective Landscape zone and SRZ 8 provisions relevant to the proposed development and the inconsistencies between them are addressed in the discussion on the issues below.

The refusal

27 The Council deferred making a determination of the application at its meetings of 18 October 2006 and 8 November 2006, to obtain further information and enable consultation with the parties and local residents.

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28 At its meeting of 29 November 2006, the Council had before it a report from an officer with a recommendation that the proposed development be granted conditional approval. The Council resolved to:

"1) Refuse the proposed modification to Subdivision Guide Plan 8A to change the use of the lot from 'Private Recreation (tennis court)' to 'Residential' to incorporate a single dwelling.

2) Record that the reason for changing the Recommendation is that it is inconsistent with the intent of the Guide Plan, will negatively impact on the amenity of the locality as currently enjoyed by residents and is therefore contrary to orderly and proper planning."

The issues

29 The parties identified issues to be considered and they are restated as follows:

(1) Do the SRZ 8 provisions and SG Plan 8A continue to have effect with respect to Lot 31?

(2) If the answer to issue (1) is "yes", how should TPS 9 be construed, having regard to:

(a) the requirement in cl 3(c) SRZ 8 provisions to transfer Lot 31 to the Crown for a reserve for recreation;

(b) the designation of Lot 31 as "private recreation (tennis court)" in SG Plan 8A;

(c) the requirement in cl 8.2.6.3 of TPS 9 for the preparation and adoption of an outline development plan (ODP) prior to the assessment of any proposal to develop land within the Landscape zone; and

(d) the fact that in the Landscape zone a single house is a "P" use and cl 2.3.6.1 of TPS 9 provides that a "P" use shall not be refused by reason of the unsuitability of that use?

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(3) If the answer to issue (1) is "no", must an ODP be prepared and adopted prior to the application being determined?

(4) How are the usual planning principles, relating to matters such as orderly and proper planning, and the preservation of the amenities of the locality, to be accommodated in the determination of the proposal?

(5) Should the development be refused because of its impact on amenity?

Discussion of the issues

Do the SRZ 8 provisions and SG Plan 8A continue to have effect with respect to Lot 31?

30 Mr Slarke, for the respondent, submitted that the provisions of SRZ 8 and SG Plan 8A continue to operate on Lot 31 although Lot 31 is shown on the zoning map of TPS 9 as being in the Landscape zone. When the Landscape zone was introduced, the SRZ 8 provisions in Appendix 7 were not revoked. Mr Slarke referred to cl 8.2.1.6 of TPS 9, which is a subsection concerned with Special Rural zones, which states:

"The provisions set out in Appendix 7 shall apply to the control of the land uses and development in the specified areas referred to therein. The Subdivisional Guide Plan for any specific area referred to in Appendix 7 shall form part of the Scheme, and future subdivision within any such specific area shall be in accordance with such Subdivisional Guide Plan."

31 Mr Slarke also referred to cl 1.7 and cl 1.11 of TPS 9 which respectively state that SRZ subdivisional guide plans and the appendices form part of the Scheme. He respectfully reminded the Tribunal the TPS 9 provisions have effect as if enacted in the PD Act.

32 Mr Hardy, for the applicants, took no issue with these submissions of Mr Slarke. Mr Hardy noted specifically the last sentence of cl 8.2.1.6 and that SG Plan 8A remains in place.

33 The Tribunal notes that cl 8.2.6.3 of TPS 9 requires that within the Landscape zone, "generally, all development or subdivision of the land shall be in accordance with the adopted outline and development plan for the locality". The Tribunal is of the view that there is nothing to prevent subdivision being generally in accordance with a relevant ODP already in

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place prior to the creation of a particular zone. It was common ground at the hearing that SG Plan 8A was a form of ODP.

34 In the 1980s, Brigadoon comprised a number of broad acre lots. It was zoned "Special Rural" and SG Plan 8A was prepared to ensure the orderly and proper subdivision of Stages 2 to 6 of Brigadoon. Stage 2 was created consistent with the subdivision layout set out in SG Plan 8A which was directly tied to Stage 2 through the specified area description for SRZ 8.

35 The Tribunal considers the answer to issue (1) is "yes", particularly, however, in respect to cl 1 of SRZ 8 which is concerned with subdivision of land. The question then arises as to the effect of SRZ 8 provisions and SG Plan 8A in respect of the use and development of land, specifically Lot 31. This is the second of the issues identified by the parties.

36 As the Tribunal has answered "yes" to issue (1), issue (2) has been rephrased as set out hereunder.

As the answer to issue (1) is "yes", how should TPS 9 be construed having regard to:

(a) the requirement in cl 3(c) of SRZ 8 to transfer Lot 31 to the Crown for a reserve for recreation?

37 Lot 31 is zoned "Landscape" and is a freehold lot. It is also shown on SG Plan 8A as crosshatched, the same crosshatching as in the key denoting "Area C to be transferred to the Crown". The remainder of Area C in Stage 2, which was marked "Reserve for Recreation", was ceded to the Crown as a condition of the 1989 subdivision approval.

38 It was Mr Slarke's submission that it was in fact open to the Crown or the Council to write to the titleholder asking that Lot 31 be transferred to the Crown in accordance with the TPS 9 provisions. There would be no need to reserve the land or to purchase it for value.

39 The Tribunal, however, is persuaded by the submission of Mr Hardy, for the applicant, that it would be beyond power for the State of Western Australia or the Council to simply say to the registered proprietor that Lot 31 must now be handed over because of cl 3(c). As Mr Hardy stated, there is nothing in the schedules of the PD Act that can provide this power. Mr Hardy also stated, and the Tribunal respectfully concurs:

"The position in that respect is reinforced by s 68 of the Transfer of Land Act which provides for indefeasibility of title

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and there is no exception to s 68 of that Act which allows for freehold title to be abrogated because of a provision such as this in a town planning scheme."

40 The copy of the diagram resulting from the 1989 subdivision approval that created Lot 31 supplied to the Tribunal bears a stamp that shows the conditions of approval had been complied with to the satisfaction of the referral bodies, including the respondent and the Commission. The Tribunal is of the view that the subdivider could have been required to cede Lot 31 free of cost as public recreation in 1989 and this did not occur. In 1996, when Amendment 174 to TPS 9 was adopted there was another opportunity to reserve Lot 31 for public recreation. Again this opportunity was not taken. The State or Council has failed to take any steps to secure the use of the land either as a reserve or for the use of the general community since then. There is nothing remaining, as Mr Hardy indicated, to compel Lot 31 to be given up. Short of acquisition by the Crown or the Council or the altruistic surrendering of the title by the owners, Lot 31 will remain a freehold lot.

41 The Tribunal is of the view that, while Lot 31 still has the Area C hatching, with the passage of time, changes of ownership and the TPS 9 amendments that have confused the planning framework, this designation does not prevent continued private ownership and the opportunity of the owners to consider the different potential uses available to Landscape zoned land under TPS 9. For the Area C designation to have pre-eminence in the hierarchy of planning controls would be to freeze the use of Lot 31 and render meaningless the array of other Scheme provisions relevant to the use and development of this freehold lot.

42 If the Tribunal is wrong in this and it is open to the Council or the Crown to simply ask for Lot 31 to be transferred, it is noted the Council or the Crown has not taken such a step in 18 years. The Tribunal would offer the comment that it is considered unreasonable that the titleholder should be prevented from using the site for uses available to owners of other lots zoned "Landscape"; that the landowner only be allowed to use the land for a purpose consistent with the possible future use by the public as open space; and that the landowner be required to simply wait for the Council or the Crown to demand the land be given up at some future unknown time of their own choosing.

43 The Tribunal has formed the view that TPS 9 is to be construed so that SRZ 8 cl 3(c) does not constrain the applicants from making an application for a use allowed in the Landscape zone and having that

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application determined on its merits in accordance with all the relevant land use provisions of TPS 9.

As the answer to issue (1) is "yes", how should TPS 9 be construed having regard to:

(b) the designation of Lot 31 as "private recreation (tennis court)" in SG Plan 8A?

44 SG Plan 8A shows Lot 31 with the designation "private recreation (tennis court)". Clause 2(b) of SRZ 8 lists private recreation as an AA use, or use prohibited unless approved by Council. The private recreation (tennis court) use continued from about 1988 to 2006. From 1996, under zoning table 3B this was as a non-conforming use within the Landscape zone.

45 Mr Jonathon Burgess, a town planner who is also a local resident and who gave evidence on behalf of the respondent, made the submission that Amendment 45 of TPS 9 which resulted in Lot 31 being depicted as private recreation (tennis court) confirmed an intention to provide this site as a facility for Brigadoon residents. He provided evidence that the availability of the tennis court was a selling point emphasised by those advertising surrounding lots for sale. Use of it was the subject of private agreement between the sellers and buyers and in his opinion, those buyers had a reasonable expectation that the tennis court would remain available for their use consistent with the promises made.

46 Councillors Charlie Zanino and Frank Alban made submissions on behalf of the respondent. They said they had examined the documents and had received representations from local residents. They said they were satisfied from the evidence that the tennis court had been promoted as a community facility and had been available to the local residents for nearly 20 years. They considered the use of Lot 31 should remain as private recreation (tennis court) for use by local residents.

47 Mr Alan Stewart, a town planner who gave evidence on behalf of the applicants, referred to the private recreation use being a non-conforming use under the Landscape zone. He pointed out that under cl 2.4.6.1 of TPS 9 if the use ceased for more than six months, the land can thereafter only be used in conformity with TPS 9. The private recreation use could only recommence if Lot 31 was rezoned. He referred to tennis courts at Lot 48 Boulonnaise Drive that the Council had rezoned "private Clubs and Institutions" in which the use was permissible.

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48 Mr Hardy submitted that this matter was about the merits of the single residential use applied for by the applicants. It is not about the expectations that local residents might have as a consequence of the way in which Lot 31 was developed and subsequently dealt with and the way in which their land was developed and subsequently dealt with. To be considered is what can be done on the site, what uses are available and how the hierarchy created by the statutory planning framework is to be interpreted and applied.

49 The Tribunal notes the disappointment of nearby residents at now not having what they consider they were entitled to expect because of their dealings with their land. The Tribunal is also of the view that it is not its role to maintain the ongoing arrangements that were in place between the selling agents and nearby land buyers. It is not normal planning practice that a landowner be required to maintain a private recreation use, not for their own private use or as a commercial operation such as is usual with private recreation, but as a free community facility that would otherwise be provided as a public facility in the ownership of the public by an appropriate means. That such an arrangement for public use of a private recreation facility was in place in Brigadoon is noted, but in the absence of any steps having been made to have a statutory underpinning for the provision of what was viewed by others as essentially a public recreation facility, it remains open to the owners to pursue applications for other land uses that might be allowed on a Landscape zoned lot.

50 When Amendment 174 to TPS 9 was gazetted in 1996 it introduced a hierarchy of controls relevant to the use of Lot 31. The additional controls did not include specific provisions which contradicted the requirement that subdivision be in accordance with SG Plan 8A or that a single house was a "P" use. It did, however, introduce with the Landscape zone certain changes contrary to the provisions applicable to SRZ 8. These included identifying in zoning table 3B prohibited uses that under SRZ8 were discretionary, or AA, uses such as private recreation, public recreation and veterinary hospital. Under zoning table 3B for the Landscape zone, "recreation: private" became a use that "shall not be permitted" (cl 2.2.3(b)). Clause 2.3.6.4 of TPS 9 states that:

"the Council shall refuse development approval or so much of any development which involves a use which is not permitted."

51 Lot 31 still has the designation "private recreation (tennis court)" under SG Plan 8A. The Tribunal, however, is now inclined to construe the hierarchy of land use controls in place in TPS 9 so that private (Page 15)

recreation becomes a lawful nonconforming use as this is considered to be consistent with the intent of introducing the Landscape zoning. The tennis court use has now ceased and were a fresh application for private recreation to be lodged it would be necessary to refuse it as a prohibited use.

As the answer to issue (1) is "yes", how should TPS 9 be construed having regard to:

(c) the requirement in cl 8.2.6.3 of TPS 9 for the preparation and adoption of an outline development plan prior to the assessment of any proposal to develop land within the Landscape zone?

52 Clause 8.2.6.3 of TPS 9 states:

"Subdivision or development within a Landscape zone shall take place only after comprehensive planning. The Council, before assessing any proposal for subdivision or development of land within the zone, shall require the preparation and adoption of an outline development plan in accordance with this, the succeeding provisions of this subclause. Generally, all development or subdivision of the land shall be in accordance with the adopted outline and development plan for the locality."

53 Mr Slarke made the submission that in order to fix up the anomalies that prevail in the planning controls, development should be refused to enable the ODP process to take place with respect to Lot 31. Rezoning would not be required as an ODP could stipulate uses permitted and they need not be consistent with the use classes of the Landscape zone in zoning table 3B of TPS 9.

54 Mr Hardy made the submission that it would be novel in the planning context for there to be an ODP created for the construction of a single level, single residence on a single lot. In support of this Mr Hardy referred to the language in cl 8.2.6.4, which identifies matters to be addressed in the preparation of an ODP. He said it was clear that an ODP was to address issues which were of a much wider ambit than the proposed development. He referred to references in that subclause to subdivision and a subdivisional guide plan, proposed population numbers, community facilities in a general sense, projected traffic, rural land use development controls and buffer areas.

55 Mr Hardy also referred to cl 8.2.6.7 which he said reinforced the applicants' approach to the issue and which states:

(Page 16)

"the requirement of the preparation and adoption of an outline development plan may be waived in the case of subdivisions resulting in the creation of not more than three lots if the three criteria specified in par (a)(2)(c) are satisfied."

56 This, it was said, created an exception to the creation of an ODP. If an ODP was not required where not more than three lots were created, it would be a surprising result if an ODP was required for a single lot residential development which is a "P" use.

57 Mr Slarke said that cl 8.2.6.7 was concerned with subdivision proposals and in this matter the concern was development. He acknowledged that it would not be necessary in ordinary circumstances to prepare an ODP for a single lot development, but that process would be one way to fix the problem of which development control provisions prevail.

58 The Tribunal is not persuaded that a development proposal different from that currently existing on a lot requires a fresh ODP for just that lot. For example, Lot 299 to the north has been developed with a single house. That owner could look to TPS 9 and apply to the respondent for development approval for uses, under the Landscape zoning, such as restaurant, rural pursuit, bed and breakfast, horticultural pursuit or a reception lodge. The Tribunal has not been persuaded an ODP for that lot would be required before such an application could be determined by the respondent. A normal planning assessment would be brought to bear on any application for such a proposal and the Council would then make a decision.

59 Two uses conflicting with each other, private recreation and public recreation, were shown for Lot 31 on SG Plan 8A. The Tribunal does not support the view that this prevents an owner from lodging a development application for a different use allowable in the Landscape zone under TPS 9 or that, should such an application be lodged, a new ODP just for Lot 31 would be required before an application could be determined.

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As the answer to issue (1) is "yes" how should TPS 9 be construed having regard to:

(d) the fact that in the Landscape zone a single house is a "P" use and the cl 2.3.6.1 of TPS 9 provides that a "P" use shall not be refused by reason of the unsuitability of that use?

60 In zoning table 3B of TPS 9, a single house is a "P" use. To note is that also under cl 2(a) of SRZ 8 a dwelling house is a "P" use.

61 Clause 2.3.6.1 of TPS 9 bears repeating. It reads:

"If an application under this scheme for approval to commence or carry out any development involves a 'P' use, the Council shall not refuse the application by reason of the unsuitability of that use, but notwithstanding that the Council may in its discretion impose conditions upon the approval to commence or carry out the use, and if the application proposes or necessarily involves any building or other work the Council, upon considering that building or other work may exercise its discretion as to the approval or refusal and the conditions to be attached to the proposed development."

62 Mr Burgess and Mr Stewart, in their joint report, agreed that cl 2.3.6.1 prevents the respondent from refusing an application on the grounds of unsuitability of that use for Lot 31. In consideration of the proposed building or other works, however, the respondent may exercise discretion and either approve or refuse the proposed development.

63 The respondent could only exercise its discretion if it has an application before it. Clause 2.3.1.3 and Appendix 8 provide exemptions from the need for a development application. For a dwelling in the Landscape zone building envelopes and setbacks are relevant considerations in respect of an exemption. Table 8B provides that for the Landscape zone minimum setbacks shall be:

• Front 30 metres;

• Side 20 metres;

• Rear 30 metres.

64 The proposed development is not exempt from being the subject of a development application because there is no building envelope and the setbacks of Table 8B are not complied with. The application for approval (Page 18)

to commence development cannot be refused, however, because the use proposed is residential, but must be assessed on its merits as a development involving a building.

65 The Tribunal considers that the provisions of the Landscape zone or SRZ 8 provisions do not affect the straightforward application of cl 2.3.6.1. The use of Lot 31 as residential is not prevented and it now remains for the proposed development to be considered and determined on its merits.

If the answer to issue (1) is "no", must an ODP be prepared and adopted prior to the application being determined?

66 The Tribunal has concluded that the answer to issue (1) is "yes."

67 The Tribunal would comment, however, that if the answer to issue (1) were "no", then a fresh ODP would be required before Stages 3 to 6 of Brigadoon could be subdivided. The Tribunal is of the view that Stage 2, having already been subdivided, would not need to be included in any fresh ODP for Stages 3 to 6 other than to make certain that no change to the lot size layout in place would be supported.

68 The TPS 9 amendment of 1996 introduced development control provisions to TPS 9 that could be used in respect of the already created lots of Stage 2. As discussed under issue 1(b) above, the Tribunal considers that the development proposal can be determined subject to the matters it is required be considered under the Landscape zone of TPS 9 without the preparation of an ODP for the site.

How are the usual principles relating to matters such as orderly and proper planning and the preservation of the amenities of the locality to be accommodated in the determination of the proposal?

69 Mr Burgess argued that Lot 31 was created as a recreation lot, not a residential lot and there has never been consent for the creation of undersized lots for residential purposes.

70 It is acknowledged that since 1989 there has been generated an expectation among new residents that Lot 31 would remain available in perpetuity as a public facility, either as a public reserve or as a community tennis court. The respondent had rejected attempts of previous owners of Lot 31 to have it included in amalgamation and resubdivision proposals, and to change its designation on SG Plan 8A. The Commission also insisted, in 1998, that Areas A, B and C remain on SG Plan 8A. It must be said, however, that the State or the Council have never taken the

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necessary additional steps to secure either of these uses for the community, as discussed above in respect of issue 1(b).

71 The Tribunal does not accept that it would be consistent with orderly and proper planning for the provisions associated with land use in the Landscape zone to be set aside and it be required that successors in title of Lot 31 be required to either provide a facility to the wider community in accordance with private arrangements entered into by others or that the title holder do nothing until the authorities decide at a time of their choosing to secure the lot for the use for the wider community.

72 Lot 31 remains a freehold lot zoned "Landscape". The provisions of TPS 9 concerned with this zoning dictate what uses can be applied for and provide discretion as to whether they should be approved. In this regard zoning table 3B depicts private recreation as a prohibited use and single house as a "P" use in the Landscape zone. In exercising that discretion it is necessary to have regard to TPS 9 development control provisions for the Landscape zone and the relevant policies.

73 At 7558 square metres, Lot 31 is about half the size of adjoining Lot 299 which is a typically sized lot for the locality. The Tribunal is of the view, however, that Lot 31 has been created and its size is not sufficient of itself to be a reason to refuse the proposed development. It is necessary to consider how the proposed house will sit on the lot and the impact on the locality this would have.

74 The two expert planners produced and put into evidence as part of their joint report a plan depicting a building envelope with the Landscape zone setbacks from Table 8B of 30 metres front, 20 metres side and 30-metres rear. Connemara Drive was selected as the front. In the course of the hearing, reference was made to the setback requirements set out at cl 8 of SRZ 8 in Appendix 7. This states that no building should be constructed closer than 15 metres to a lot boundary except that Council may approve a lesser distance in certain circumstances. The Tribunal does not consider these setbacks are applicable consistent with the approach that Lot 31 is in the Landscape zone, and in the hierarchy of development control provisions, those relevant to the Landscape zone are applicable to any application for approval to commence development on Lot 31.

75 The sketch produced by the two expert planners included an outline of the estimated location of the proposed house and shed. This showed that about half the house would be outside the building envelope. The

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shed would be 14 metres instead of 20 metres from the side boundary common with Lot 299 to the north. The locations for these two structures relate directly to the level area of the former tennis court and parking area respectively. Mr Stewart made the comment that the setback variation would have little impact on the rural residential setting of the locality. Mr Burgess argued that due to the high visibility of the corner and lack of vegetation, the proposed setback would have an impact on the rural residential setting. He referred to an aerial photograph attached to his witness statement that showed estimated front setbacks in the locality. The Tribunal noted that for Lot 299 to the north, the front setback of the house is 30 metres with front setbacks on other lots of 40 metres or more.

76 The experts' site sketch shows it is possible on Lot 31 to define a building envelope consistent with Landscape zone setback standards. The Tribunal is not convinced that the proposed house and shed should be allowed to be sited as proposed relative to the identified envelope merely because the former tennis court and car park are available as level building sites.

77 On this issue, the Tribunal is of the view that orderly and proper planning requires that the proposed development on Lot 31 be considered in the light of the planning provisions that control use and development in the Landscape zone. These assist also in determining whether the proposed development would be consistent with preserving the amenity of the locality.

Should the development be refused because of its impact on amenity?

78 The proposed development of Lot 31 would result in retention of the dam, re-use of the gravel car park and crossover and the construction of the house where there was previously the tennis court.

79 Consistent with the submission by Mr Burgess, it is acknowledged that the tennis court, when there, provided a recreational facility that added to the enjoyment others had of living in the locality. The neighbours object to the replacement of the tennis court with a house because of the impact this will have on that enjoyment.

80 The tennis court use has already ceased and the fence has been removed. The alternative to the proposed house on this freehold lot is not necessarily the return of the tennis court or a replacement community recreational facility of the neighbourhood's choice. Therefore, the amenity related to such uses is not something that the neighbours should expect could be automatically restored. The Tribunal does not believe

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that the impact of the provision or otherwise of a community tennis court is the measure of whether development could be allowed on Lot 31.

81 As stated more than once above, a single house is a permitted use in the Landscape zone. Mr Stewart and Mr Burgess agreed that a house of the floor plan proposed would be consistent with the rural residential character of the locality, and conditions could be imposed in respect of the lack in elevations and schedules of external materials and finishes. Mr Burgess went on to point out, however, that Lot 31 is smaller than the standard lot size of the locality, is on a prominent corner, and photographs put into evidence revealed the only vegetation on the lot is clustered around the dam and not the proposed house site. He also referred to examples to show that the setback to most other houses in the locality was well in excess of the minimum standard, although the actual setback to building envelopes was not clear.

82 A house would certainly have a greater impact on the locality than no development at all. The Tribunal considers, however, that this, of itself, is not a reason for refusing a complying development. There is no building envelope for Lot 31 but TPS 9 provides minimum setback standards. Bearing in mind a house is a "P" use, the Tribunal is of the opinion that a house development of appropriate design in a defined building envelope that reasonably addressed setback standards and the matters to be addressed under cl 8.2.6.2, particularly an appropriate level of strategic revegetation, might well be consistent with the objectives of the Landscape zone.

83 TPS 9 states the purpose and intent of the Landscape zone is to ensure that development is compatible with and will enhance the landscape and environmental qualities of the locality.

84 In considering the development as proposed, the Tribunal has formed the view that it does not sufficiently address the matters necessary for discretion to be exercised in favour of it proceeding. The fact that the house would be on the former tennis court is not, of itself, sufficient reason to relax setbacks. There might be a case for some variation when defining a building envelope, but nothing was presented for the Tribunal to support this. The site sketch submitted had markings that could be assumed to be proposed vegetation, and the applicants advised the Council that they would hire a firm to make the site environmentally friendly, promote wildlife and to eradicate weeds. Nothing was provided beyond this comment to address cl 8.2.6.2(e) that requires that there be

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"strategic revegetation of cleared or degraded areas in order to blend development into the landscape".

85 This raises the question of whether conditions could be imposed so that the proposed development could be allowed subject to it being changed and enhanced to address sufficiently the impact it would have on that locality. The Tribunal is of the view that it is not clear what form of development would result if approval was given to a house with conditions that would change significantly the proposal put before the Tribunal. If a building envelope is to be defined, the house design assessed and relocated and the matters of cl 8.2.6.2 addressed, particularly an integrated landscape plan, the development should be the subject of a fresh application.

86 In response to issue 5, the Tribunal has concluded that the development proposal as presented to the Tribunal would have an adverse impact on the amenity of the locality.

Conclusion

87 Lot 31 is currently zoned "Landscape" in the respondent's TPS 9. When Lot 31 was created by the subdivision of Brigadoon Stage 2 in 1989, it was within SRZ 8. SG Plan 8A adopted under the provisions of SRZ 8 set out the subdivision pattern for Stage 2. SG Plan 8A identified the land that became Lot 31 as being required for both of the usually contradictory uses of being given up to the Crown as a reserve for recreation and private recreation (tennis court). The subdivision approval did not require that Lot 31 be ceded to the Crown, but created it as a freehold lot. The development and use of lots created were at that time subject to the provisions of SRZ 8.

88 In 1996, Stage 2, and neighbouring Stages 3 to 6 Brigadoon, were rezoned to "Landscape." The scheme amendment introduced land use controls for lots zoned "Landscape," but curiously, the amendment did not delete any of the provisions of SRZ 8 that referred to Lot 31. This set an anomalous situation where different land use controls each apparently relevant to Lot 31 directly contradicted each other.

89 The Tribunal has found that Lot 31 is still referred to as part of the specified area of SRZ 8. As SG Plan 8A is still in place and there is no other ODP for the Landscape zone, the subdivision guidance to be found in SG Plan 8A still has effect. The subdivision of Stage 2 of Brigadoon is complete and it is considered no other ODP is necessary for development of Lot 31 to be considered.

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90 Under both the Landscape zone and SRZ 8, a single house is a permitted use. TPS 9 provides that a permitted use cannot be refused because of the unsuitability of the use, but discretion can be exercised to refuse or impose a condition when there is a building proposed.

91 As the development control provisions of the Landscape zone and SRZ 8 contradict each other, it has been necessary for the Tribunal to identify a hierarchy of land use controls when determining the proposal.

92 The Tribunal has concluded that, notwithstanding the designation of land uses for Lot 31 on SG Plan 8A, it is open to the owners to make an application for approval to develop a house and, because of the zoning of the site, to have that application assessed according to its merits in the light of the development control requirements of the Landscape zone. The Tribunal noted that no steps have been taken by the respondent or the Crown to affect the taking of Lot 31 as a reserve for public recreation in nearly 20 years. It is not considered reasonable that the use of Lot 31 should be frozen on the basis of this SG Plan 8A designation when there is no evidence that it is ever to be accomplished. The private recreation use has now ceased and under the Landscape zone is now a prohibited use. Local residents had expectations raised in the past that Lot 31 would remain a community facility, apparently in perpetuity, but there is not now any statutory basis for this.

93 TPS 9 provides standards and guidance for the assessment of development proposals in the Landscape zone. While the use of Lot 31 for residential use cannot be refused on the basis of the unsuitability of that use, the Tribunal has found that the development as proposed cannot be supported.

94 The purpose and intent of the Landscape zone of Brigadoon is to ensure development is compatible with the landscape and environmental qualities of the locality. Lot 31 is smaller than other lots in the Landscape zone, but it is considered to be of a size that if standards are properly addressed, a house could be developed on the lot. The development proposal before the Tribunal did not sufficiently address the development standards of the Landscape zone, and so the Tribunal has determined that the application before the Tribunal is refused.

Orders

95 The Tribunal makes the following orders:

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1. The application for review of the refusal of the proposed development of the house shown on the plans date stamped 11 August 2006 by the City of Swan is dismissed.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR J JORDAN, MEMBER