EVANS and Shire Of Irwin
[2006] WASAT 288
•22 SEPTEMBER 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: EVANS and SHIRE OF IRWIN [2006] WASAT 288
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 22 SEPTEMBER 2006
FILE NO/S: DR 237 of 2006
BETWEEN: DARREN EVANS
Applicant
AND
SHIRE OF IRWIN
Respondent
Catchwords:
Town planning - Development application - Aged persons' housing - Density - Preliminary issue - Whether development is capable of approval - Determination of density coding applicable to site - Density coding for zone is R12.5 - Aged Persons Village is specific land use and subject to minimum area per dwelling development standard according to R30 - Whether discretion under Residential Design Codes of Western Australia (2002) to reduce minimum and average site areas by up to one-third for Aged Persons' dwelling is applicable to R12.5 or R30 density coding
Legislation:
Residential Design Codes of Western Australia (2002), cl 3.1.1 A1, cl 3.1.1 A3, cl 3.1.1 P1
Shire of Irwin Town Planning Scheme No 4, cl 1.10.3, cl 3.4.3, cl 3.4.4, cl 5.1.2, cl 5.1.3, cl 6.2
Result:
Development application is not capable of approval
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr SJ Bain (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Shire of Irwin
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Forrest and Town of Cottesloe [2005] WASAT 311
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Shire of Irwin contended that a proposed aged persons' housing development was incapable of approval, because the minimum and average site areas were less than the minimum areas prescribed in the Residential Design Codes of Western Australia (2002).
The Tribunal determined that the relevant residential density coding of the land was R12.5, as argued by the Shire, not R30, as argued by the applicant. Although a discretion to reduce the minimum and average site areas by up to one-third was available, even if the discretion were exercised, the minimum and average site areas proposed were less than those required by the Codes. Furthermore, the development did not conform to the minimum area of lot per dwelling unit development standard prescribed in the local planning scheme.
The development application was incapable of approval and the decision of the Shire to refuse development approval was affirmed.
Introduction
The Shire of Irwin (Shire) has raised a preliminary issue for determination in planning review proceedings which are pending before the Tribunal. The proceedings concern the Shire's refusal of a development application for approval to the construction of 40 aged persons' grouped dwellings and common facilities at Lot 15 Point Leander Drive, Port Denison (site) (DA).
The preliminary issue is whether the DA is capable of approval. This issue turns on the determination of the relevant density coding prescribed by the local planning scheme in relation to the site.
Relevant Scheme and Codes provisions
The site is zoned "Residential R12.5" under the Shire of Irwin Town Planning Scheme No 4 (LPS 4 or Scheme). Although the designation, R12.5, is usually simply a reference to a density coding of R12.5 for the purposes of the Residential Design Codes of Western Australia (2002) (Codes), under LPS 4, it also forms part of the title of the zone. Similarly, R2.5, R30 and R50 also form part of the titles of the other residential zones under the Scheme. In addition, for reasons discussed below in relation to the subject zone, each of these designations also determines the relevant density coding for the purposes of the Codes.
The Zoning and Development Table of the subject zone sets out the uses permitted, including Aged Persons Village. The term "Aged Persons Village" is defined in Sch 1 of the Scheme to mean "a building or a group of buildings designed for residential occupation by aged persons and includes buildings and parts of buildings used for communal facilities, food preparation, dining, recreation, laundry or medical care". The term "aged persons" is not defined in the Scheme, but, in accordance with cl 1.10.3 of LPS 4, has the meaning given to it in the Codes, namely, "a person who is aged 55 years or over".
The DA proposes an Aged Persons Village within the meaning of LPS 4. Aged Persons Village is designated by the symbol "SA" in the Zoning and Development Table of the subject zone, which means that the Shire may, at its discretion, permit the use after notice of the application has been given in accordance with cl 6.2 of the Scheme.
Clause 3.4.3 of LPS 4 states that, unless otherwise provided for in the Scheme, development of land for any of the residential purposes dealt with by the Codes shall conform to the provisions of the Codes. The dwellings proposed in the DA involve development of land for a residential purpose, namely, grouped dwellings, dealt with by the Codes.
Clause 3.4.4 of the Scheme provides as follows:
"The Residential Planning Code Density applicable to all residential land within the Scheme shall be determined by:
(a)the zones shown on the Scheme Map; and
(b)the Residential Planning Code Density Zone as stated in the Zoning and Development Table."
The zone shown on the Scheme Map in relation to the site is Residential R12.5. The Residential Planning Code Density Zone, as stated in the Zoning and Development Table of the subject zone, is "Residential (R12.5 - Single)".
The Zoning and Development Table of the subject zone also prescribes development standards. The development standard specified in relation to minimum lot area, minimum effective frontage, minimum area of lot per dwelling and minimum landscaping, is designated as R12.5, "unless otherwise specified against a particular use class below". The minimum area of lot per dwelling unit development standard prescribed for the Aged Persons Village use class is designated as R30.
Clause 5.1.2 of the Scheme provides that, subject to the provisions of cl 5.1.3, development within the Scheme area shall conform to the standards set out in the Zoning and Development Table. Clause 5.1.3 confers power to relax development standards and requirements in relation to all developments other than a residential development.
The Acceptable Development provision of the housing density requirements of the Codes, in cl 3.1.1, states, in part, as follows:
"Development which complies with the following is deemed to meet the relevant Performance Criteria. …
A1.1Development which complies with the dwelling type and site area requirements set out in Columns 2, 3 and 4 of Table 1 against the relevant R-Code in Column 1, and the following provisions:
…
[A3][T]he following variations to the minimum site areas set out in Column 3 of Table 1 may be made:
i.for the purposes of an Aged or Dependent Persons' dwelling … the minimum site area may be reduced by up to one third, in accordance with Section 4.1.2 … " (Emphasis added.)
The corresponding Performance Criteria in cl 3.1.1 P1 is "[d]evelopment of dwellings of the type and density indicated by the RCode designated in the Scheme".
Section 4.1.2 contains an Acceptable Development provision and Performance Criteria for Aged or Dependent Persons' dwellings.
Column 3 of Table 1 sets a minimum site area of 700 square metres and an average site area of 800 square metres for a grouped dwelling in the R12.5 coding, and a minimum site area of 270 square metres and an average site area of 300 square metres for a grouped dwelling in the R30 coding.
Is the DA capable of approval?
The DA is capable of approval if:
(i)the relevant residential density coding for the site is R30; and
(ii)the proposed development involves Aged Persons' dwellings for the purposes of the Codes.
If both of the conditions set out in the preceding paragraph are fulfilled, then the proposed minimum and average site areas are greater than the minimum and average site areas set out in Column 3 of Table 1 of the Codes for the R30 code, reduced by up to one-third in accordance with the discretion conferred by cl 3.1.1 A3 of the Codes. However, if the relevant density coding for the site is R12.5 and/or the proposed development does not involve Aged Persons' dwellings, then the proposed minimum and average site areas are less than the minimum and average site areas contemplated in the Codes.
Clause 3.4.4 of the Scheme sets out the mechanism for determining the relevant residential density coding of land for the purposes of cl 3.1.1 of the Codes. It is apparent from cl 3.4.4 of the Scheme that the relevant residential density coding for the site is R12.5, not R30. The density coding of R12.5 is identified in the zone shown on the Scheme Map and in the Residential Planning Code Density Zone, as stated in the Zoning and Development Table, namely, Residential (R12.5 - Single). Clause 3.4.4 of the Scheme indicates that, unusually, the relevant residential density coding of land in the Scheme area is determined by reference to the zoning, not by reference to a residential density coding overlay. Contrary to the applicant's submission, the designation, R12.5, is not merely the name of the zone, but also identifies the relevant density coding.
The Zoning and Development Table of the subject zone prescribes a development standard of minimum area of lot per dwelling unit in respect of Aged Persons Village use by a designation of R30, rather than by a designation of R12.5 which would otherwise apply. However, cl 3.4.4 of the Scheme does not provide that the relevant density coding shall be determined by reference to a development standard of minimum area of lot per dwelling unit. Rather, as noted earlier, the clause provides that the residential density coding shall be determined by the zone shown on the Scheme Map and the Residential Planning Code Density Zone as stated in the Zoning and Development Table. Therefore, the development standard of minimum area of lot per dwelling unit in relation to Aged Persons Village use does not transform the "relevant R-Code", referred to in cl 3.1.1 A.1.1 of the Codes, from R12.5 to R30.
The proposed development involves Aged Persons' dwellings for the purposes of the Codes. In consequence, the discretion to allow a variation to the minimum and average site areas specified in Column 3 of Table 1 of the Codes is available in relation to the DA.
However, as the relevant residential density coding is R12.5, even if the discretion were exercised in the circumstances of this case, the proposed minimum and average site areas are less than the minimum and average site areas set out against the R12.5 coding, reduced by one-third.
Moreover, as the density indicated by the density coding designated in the Scheme is R12.5, the DA is not "[d]evelopment of dwellings of the type and density indicated by the R-Code designated in the Scheme", referred to in the Performance Criteria in cl 3.1.1 P1 of the Codes.
The DA does not, therefore, conform to the provisions of the Codes in relation to density.
However, as noted earlier, cl 3.4.3 of the Scheme requires that development of land for any of the residential purposes dealt with by the Codes shall conform to the provisions of the Codes, unless otherwise provided for in the Scheme. The Zoning and Development Table for the subject zone provides, in effect, for development of an Aged Persons Village to not have to conform to the density provisions of the Codes, because, as noted earlier, it prescribes a specific and different development standard for minimum area of lot per dwelling unit for Aged Persons Village use to the site area requirements which would otherwise apply in relation to land coded R12.5. By specifying a minimum area of lot per dwelling unit development standard by reference to R30 in relation to Aged Persons Village use, the Zoning and Development Table of the subject zone incorporates the site area requirements set out in Column 2 of Table 1 of the Codes for the R30 density coding.
However, neither the minimum nor average site areas proposed satisfy the site area requirements set out in the Codes in relation to land coded R30. As noted earlier, cl 5.1.2 of the Scheme provides that, subject to cl 5.1.3, development shall conform to the development standards set out in the Zoning and Development Table. As also noted earlier, the power to relax development standards and requirements in cl 5.1.3 does not apply in relation to residential development.
As the DA does not conform to the provisions of the Codes in relation to density or to the minimum area of lot per dwelling unit development standard set out in the Zoning and Development Table, it is not capable of approval, and must be refused under cl 5.1.2 of the Scheme.
Conclusion
The relevant density coding of the site is R12.5. The DA involves Aged Persons' dwellings within the meaning of the Codes. However, even if the discretion under cl 3.1.1 A3 of the Codes were exercised favourably to reduce minimum site area by up to one-third, the minimum and average site areas proposed are less than the site area requirements referred to in the density Acceptable Development provision and the development is not of a density indicated by the R-Code designated in the Scheme referred to in the density Performance Criteria. The DA does not, therefore, conform to the provisions of the Codes in relation to density.
By prescribing a development standard of minimum area of lot per dwelling unit in relation to Aged Persons Village use by a designation of R30, as opposed to R12.5, the Scheme, in effect, provides that such development does not need to conform to the density provisions of the Codes. However, cl 5.1.2 of the Scheme requires that the development conform to a minimum area of lot per dwelling unit development standard which is the minimum site area per dwelling standard specified in Table 1 of the Codes in relation to the R30 coding. The DA does not conform to this development standard and there is relevantly no power to vary the standard.
It follows that the DA is not capable of approval and must be refused consent under cl 5.1.2 of the Scheme.
Orders
The Tribunal makes the following orders:
1.The proposed development is not capable of approval.
2.The application for review is dismissed.
3.The decision of the respondent to refuse development approval for an Aged Persons Village at Lot 15 Point Leander Drive, Port Denison is affirmed.
I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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