GALLEA and WESTERN AUSTRALIAN PLANNING COMMISSION

[2006] WASAT 109

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   GALLEA and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 109

MEMBER:   MS M CONNOR (MEMBER)

HEARD:   ON THE DOCUMENTS

DELIVERED          :   4 MAY 2006

FILE NO/S:   DR 631 of 2005

BETWEEN:   JOHN GALLEA

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning ­ Subdivision ­ Survey strata ­ Conditional approval ­ Requirement for restrictive covenant ­ Whether existing 5.03 metre wide right­of­way requires widening in the future ­ Likely pattern of development in the context of state and local policies

Legislation:

City of Stirling District Planning Scheme No 2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 135, s 138

Town Planning and Development Act 1928 (WA), s 5AA, s 20, s 24(5), s 26(1)(a)(ii)

Result:

1. The application for review is allowed.

2. The decision under review is varied as follows:
            i) Condition 3 is deleted.

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr R Duckham (as agent)

Solicitors:

Applicant:     N/A

Respondent:     N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of the Tribunal's decision

1. John Gallea sought review of amended condition 3 of the Western Australian Planning Commission's decision of 26 October 2005 relating to the subdivision of No 196 St Brigids Terrace, Doubleview.  The condition required:

   "A Restrictive Covenant, pursuant to section 129BA of the Transfer of Land Act 1893 (as amended) is to be placed on the Certificates of Title of the proposed lot/s advising of the existence of a restriction on the use of the land.  Notice of this restriction to be included on the Deposited Plan.  The restrictive covenant is to state the following:

   No new development shall occur within 0.485 metres of the right­of­way abutting the northern boundary of the lot to accommodate widening of the right­of­way should it be required in the future."

2. The issue before the Tribunal was whether the existing 5.03 metre right­of­way provided adequate access and vehicle manoeuvrability to the proposed rear lot.  The findings on this issue would determine whether it was necessary to impose a condition requiring a restrictive covenant warning future owners of a possible future widening.

3. The Tribunal found that the proposed subdivision was consistent with the alternative design solution advocated in the Western Australian Planning Commission's Planning Bulletin 33 Rights­Of­Way or Laneways in Established Areas ­ Guidelines and that the proposed lots would have adequate access and be able to accommodate car parking in accordance with relevant standards.  The Tribunal concluded that, given the unlikelihood of future widening of the existing 5.03 metre right­of­way, condition 3 was unnecessary in the circumstances of this case.

Introduction

1. Mr John Gallea, Ms Annamarie Willet and Mr Craig Willet (owners) of Lot 653 (No 196) Brigids Terrace, Doubleview (subject land) made application to the Western Australian Planning Commission (respondent) on 11 April 2005 for approval to subdivide the subject land to create two survey strata lots of 393 square metres and 426 square metres and a common property lot of 33 square metres.

2. The respondent approved the application on 18 July 2005 subject to nine conditions and five advice notes.

3. The owners elected to request the respondent to reconsider conditions 3 and 4 of its decision in accordance with the provisions of s 24(5) of the Town Planning and Development Act 1928 (WA) (TPD Act). The conditions read as follows:

   "3.The right­of­way adjoining the northern boundary of the subject land shall be widened by 0.485 metres, such widening being shown on the Deposited Plan as a 'Right­of­Way', and such land to be ceded free of cost and without any compensation by the Crown.

   4.The portion of the right­of­way adjoining the northern boundary of the subject land, including the portion to be widened, being sealed, drained and paved full width and the remaining portion of the right­of­way from the western boundary to the existing Herbert Street carriageway being made trafficable."

4. On reconsideration of the matter, the respondent resolved to delete condition 4 and replace condition 3 with the following:

   "3.A Restrictive Covenant, pursuant to section 129BA of the Transfer of Land Act 1893 (as amended) is to be placed on the Certificates of Title of the proposed lot/s advising of the existence of a restriction on the use of the land.  Notice of this restriction to be included on the Deposited Plan.  The restrictive covenant is to state the following:

   No new development shall occur within 0.485 metres of the right­of­way abutting the northern boundary of the lot to accommodate widening of the right­of­way should it be required in the future."

5. Mr Gallea (applicant) on 20 November 2005 made application under s 26(1)(a)(ii) of the TPD Act to have amended condition 3 reviewed.

Subject land

1. The subject land is more particularly described as Lot 653 on Plan 3697 comprised in Certificate of Title Volume 115 Folio 679 and is 852 square metres in area.

2. Lot 653 is rectangular in shape with a frontage of 18.85 metres to St Brigids Terrace and a depth of 45.26 metres.  The subject land falls within the street block defined by St Brigids Terrace, Herbert Street, Grand Promenade and Scarborough Beach Road.  The street block was originally serviced by three rights­of­way, forming an "I" configuration within the street block (see Annexure 1).  However, portions of two of the rights­of­way have been closed, interrupting access within the street block.

3. Right­of­way No 16034 (ROW 16034), which abuts the rear boundary of the subject land, originally provided an east­west link between Grand Promenade and Herbert Street.  Portions of the right­of­way abutting Lots 654, 655 and 744 have recently been closed and amalgamated into the adjoining properties, and consequently, the right­of­way only provides a link to Grand Promenade.

4. Right­of­way No 16033 (ROW 16033) runs north­south between the lots that front Grand Promenade and Herbert Street linking into ROW 16034, giving access to Grand Promenade.  The evidence shows that portions of the right­of­way abutting Lots 640 & 754; 641 & 753; 642 & 752; 643 & 751; 644 & 750; 645 & 749 have been subsequently closed and amalgamated into the adjoining lots (see Annexure 1).

5. It is common ground between the parties that ROW 16034 is in private ownership.

Proposal

1. The proposed subdivision will result in the creation of two survey strata lots and a common property lot.  Proposed Lot 1 (front lot) is 393 square metres in area with a 17.35 metre frontage to St Brigids Terrace.  Proposed Lot 2 (rear lot) is 426 square metres in area fronting onto ROW 16034.  The purpose of the proposed common property lot is to provide pedestrian access from the rear lot through to St Brigids Terrace (see Annexure 2).

Planning framework

1. The subject land is zoned "Urban" in the Metropolitan Region Scheme (MRS) and "Low Density Residential" with a permitted site density of R30 under the City of Stirling District Planning Scheme No 2  (DPS 2).

2. The respondent has prepared a number of planning documents for the purpose of exercising its power under s 20 of the TPD Act (see now s 135 and s 138 of Planning and Development Act 2005) (WA) to approve a plan of subdivision.  Statement of Planning Policy No. 1 State Planning Framework Policy (Variation No. 1) (SPP 1) is a policy made under s 5AA of the TPD Act for the purpose of uniting existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision­making on land use, subdivision and development in Western Australia. The policies listed in SPP 1 relevant to this matter include:

   •Policy No DC 1.3 Strata Titles (September 2003) (DC 1.3); and

   •Policy No DC 2.6 Residential Road Planning (June 1998) (DC 2.6).

3. Planning Bulletin No 33 Rights­Of­Way or Laneways in Established Areas ­ Guidelines (July 1999) (PB 33) was also referred to by the parties.  According to Mr Duckham, an acting Senior Planning Officer of the Department of Planning and Infrastructure, PB 33 is not contained in SPP 1 but is a policy that has been developed and endorsed by the respondent.

4. Policy N101301 Developments Abutting Rights­of­Way (April 2005) (City's policy) is also of relevance to this matter.

Respondent's position

1. The respondent contends that the proposed subdivision does not comply with cl 3.5.3 of DC 2.6 or PB 33.  The respondent argues that the right­of­way is 0.97 metres short of the required width specified in its policies, and therefore, any garage or carport on the proposed rear lot would need to be set back at least 0.97 metres from the existing boundary to achieve acceptable manoeuvring space for on­site parking.  The respondent contends that a restrictive covenant must be placed over the rear lot, stating that there be no development within 0.485 metres of the existing boundary.  This would allow for future widening of the right­of­way, which will enable a suitable level of pedestrian, bicycle and vehicular access to be achieved for all lots which stand to benefit from right­of­way access, including the lots proposed in this survey strata subdivision.

2. The respondent asserts that the restrictive covenant fairly and reasonably relates to the proposed subdivision, as it seeks to improve the quality of access provided by the right­of­way which provides sole vehicular access to the rear lot.  The respondent maintains that it has consistently required widening of rights­of­way or restrictive covenants providing for the widening of rights­of­way in this locality for the last two years.  To substantiate this claim, the respondent provided a list of subdivision applications relating to properties in Doubleview and Scarborough that had been granted preliminary approval since 1 December 2003.  The list indicated whether the subdivision application had as a condition of approval a memorial advising of future widening, a restrictive covenant, widening requirement or no such condition imposed on the approval.

Applicant's position

1. The applicant submitted the following arguments in support of his application:

   •The City of Stirling (City) did not require the imposition of this condition and in response to a query from the applicant, stated:

   "The City does not object to the ROW widening intent contained in WAPC Bulletin No 33, it simply sees it as very long term and somewhat ineffective given the scope and scale of the ROW situation in the City."

   •The need to widen the right­of­way as a result of increased density within the street block is not an issue as the Council has no interest in supporting development with primary vehicle access via ROW 16033.  The reason for the Council position is that ROW 16033 is listed as a "Category 4 ­ Minimal Strategic Benefit Rights of Way", in the City's policy.  The applicant asserts that, based on the City's policy, Lots 646, 647, 648, 649, 748, 747, 746, 745 and 103 will be required to take access from their respective primary streets.  Therefore, the increase in the density of these lots will not result in the need to increase the width of the right­of­way.

   •Portion of ROW 16034 has been closed, which prevents Lot 101 and Lot 102 St Brigids Terrace gaining access via the right­of­way, thus reducing demand.

   •Lot 650 has been subdivided, and the approved rear lot fronts onto and uses ROW 16034 for access.  This lot was not required to cede 0.48 metres along its southern boundary to widen the right­of­way.

   •Lot 1 St Brigids Terrace is the only property left that could possibly increase density on ROW 16034.  Given the intensity of possible development, there is no need to widen the right­of­way.

   •The imposition of a restrictive covenant to widen the right­of­way is inequitable as many subdivisions have occurred in the municipality that have not been required to meet such a condition.  The applicant cited Kulin Lane, the rights­of­way between Grand Promenade and Fulford Street, Hancock and Flamorough Streets, Hancock and Lynton Streets, and Lynton and Auborough Streets as rights­of­way demonstrating developments that have occurred that are non­compliant with the respondent's policies.

   •Manoeuvrability is not an issue as the City has required that the garage of the proposed residence be set back 5.0 metres from the boundary to ensure adequate space for vehicles to pass, manoeuvre, reverse or park.

Consideration

1. In determining these proceedings, it is essential to understand the comprehensive planning framework that has been developed, both at the State and local level, in respect to development and subdivision of land abutting existing rights­of­way in established areas.

2. As referred to above, there have been a number of policies that have been prepared and adopted by the respondent to guide decision­making.  DC 1.3 sets out the criteria to be used in determining applications for strata title proposals.  Of relevance is cl 3.3.4(e) which provides that the respondent must be satisfied that the proposed lot(s) will have adequate access and be able to accommodate car parking in accordance with relevant standards.

3. Further, DC 2.6 sets out the respondent's requirements for the planning and design of roads in residential areas and provides guidelines for the design and layout of residential roads.  Clause 3.5.3 specifies a minimum carriageway of 6.0 metres for rear laneways.

4. The respondent has also prepared an advice publication, PD 33, which provides guidelines outlining the respondent's policy, practice and procedures regarding residential and commercial development adjoining existing rights­of­way or laneways in established areas.  The bulletin encourages the adoption of a coordinated long­term approach to the use and upgrading of rights­of­way in areas undergoing redevelopment and outlines some of the key issues and approaches to be generally applied.

5. One of the issues considered by the guidelines is the width of rights­of­way.  There is an acknowledgment of the requirement for a minimum width of 6.0 metres for a right­of­way specified in DC 2.6 but there is also recognition that vehicles can pass safely (at low speed) in a 5.0 metre right­of­way.  There is also an acceptance that existing 5.0 metre wide rights-of-way may not require widening if they only provide (vehicular) access to garages, and are not the main (pedestrian) access to dwellings adjoining the right­of­way and that the street block is likely to follow this pattern.  The bulletin also provides illustrations of acceptable design solutions associated with 5.0 and 6.0 metre wide rights­of­way in established areas.

6. Furthermore, the bulletin advocates local governments refining the guidelines to take into consideration local circumstances so that such matters can be taken into account in the consideration of subdivision and strata applications.

7. At the local level, the City has prepared Policy N101301 Developments Abutting Rights­of­Way to coordinate and guide development abutting rights­of­way.  Each right­of­way within the municipality has been designated a "category", based on assessment of the relative suitability and benefits of use of the right­of­way.  There are five categories, and essentially, the City seeks to promote the use of category 1 and category 2 rights­of­way for primary access, the use of category 3 rights­of­way for secondary access where this facilitates protection of the streetscape, and to discourage further use of category 4 and category 5 rights­of­way, to allow for future closure.

8. Under this policy, ROW 16034 is classified as a category 2 right­of­way, suitable for primary access.  ROW 16033 is classified as a category 4 right­of­way.

9. The proposed subdivision is configured so that the rear lot has vehicular access via ROW 16034 and is provided with a 1.5 metre pedestrian access leg to St Brigids Terrace.  ROW 16034 is 5.03 metres in width.  This configuration satisfies the design solutions advocated in PB 33 for existing rights­of­way 5.0 metres in width.  The issue is whether all development in the street block is likely to follow this pattern.

10. The respondent is dismissive of the City's policy and argues that, whilst the policy is relevant as a guide to the possible future use of ROW 16034 and ROW 16033, it is not determinative, and little weight should be attributed to the categorisation of rights­of­way.  The respondent submits that its relevance to the consideration of the appropriateness of condition 3 is marginal at best.

11. The Tribunal is not of the same view.  The City's policy, together with the respondent's policies, forms part of a comprehensive planning framework set out to guide decision­making on this particular planning issue.  The respondent's policies provide the general strategic approach to be applied across the State, while the City's policy refines the strategic approach to accommodate local circumstances, an approach encouraged by the respondent's policy.  Local policies play an important role, as they provide local context and an added dimension to the planning matrix.  The City's policy clearly defines the future management directions of rights­of­way within the municipality and should be taken into consideration in the determination of this matter.

12. The respondent argues that there are currently 10 properties abutting ROW 16033 and, should any of those lots be subdivided in such a manner as to provide sole vehicular access from the right­of­way, the right­of­way would require upgrading and would cease to be of "minimal strategic value" for the purposes of the City's categorisation.  Therefore, the categorisation of ROW 16033 is irrelevant to the consideration of condition 3.

1. The respondent justifies the imposition of condition 3 on the basis that all lots abutting ROW 16034 and ROW 16033 that have an area greater than 600 square metres may potentially be subdivided taking access from the right­of­way, thus resulting in an increased use of both rights­of­way and a need to widen the rights­of­way.

2. The applicant contends that the City's policy discourages the use of ROW 16033 for access which, together with the recent closure of portion of ROW 16034, demonstrates that there is no planning need for widening of ROW 16034, and therefore no need to impose a condition requiring the restrictive covenant.

3. To substantiate this claim, the applicant provided an email from an officer of the City stating the City's position in relation to the potential use of ROW 16033:

   "Category 4 ROW's are deemed to have no strategic value, which means that the City has no interest in retaining them for either town planning or traffic management benefits.  Therefore closure will usually be supported subject to the support of all owners abutting the ROW.  It is for this reason that [it] is unlikely that the City would support a development application from the owners of the properties listed above [being house numbers 244, 246, 248, 250, 252 Grand Promenade and Nos 259, 261, 263, 265, 267 Herbert Street] whereby primary access was via the Right­of­way (ROW 16033).

   The properties abutting ROW 16033 (listed above) are all zoned R30, having duplex development potential.  It is likely that should the owners of the properties listed above wish to develop, vehicle access to the properties on each Lot would be via Grand Promenade or Herbert Street."

4. The City has adopted a coordinated approach to the management of rights­of­way within the municipality.  The local policy recommends that ROW 16033 not be used for primary access to allow for future closure of the right­of­way.  The evidence demonstrates that this recommendation is progressively being implemented through the closure of a substantial portion of the right­of­way (approximately 42%).  This evidence is critical in assessing the weight to be attributed to the local policy and determining the likely future pattern of development within the street block as it demonstrates application of the policy.

1. Based on the local policy and the City's past endeavours and present attitude in implementing the policy's recommendations in respect to this street block, it is reasonable to conclude that developments in the future will be discouraged from using ROW 16033 for primary access and that further closures will be likely.  Even if this is not the case for some lots, the provision of a 1.5 pedestrian access leg is a viable alternative to widening the right­of­way, which would be consistent with the respondent's policy.  Given this position, it is unlikely that there will be any need to widen this particular right-of-way in the future.

2. The evidence shows that portion of ROW 16034 has been recently closed.  This action further reduces the potential use of this particular right­of­way for primary vehicular access by lots abutting the right­of­way.  It is considered likely that the remaining undeveloped lots that could use the right­of­way for primary vehicular access would be capable of providing alternative pedestrian access to a public street.

3. The Tribunal finds that the proposed subdivision is consistent with the alternative design solution advocated in PB 33 for existing 5.0 metre rights­of­way.  The concern expressed relating to vehicle manoeuvrability is satisfactorily addressed as a condition of approval of the development issued by the City requiring that the proposed garage be set back 5.0 metres from the existing boundary.  This setback requirement accords with the City's policy and offers further evidence of the implementation of this policy at the local level.  The required setback of the City more than adequately satisfies relevant standards of manoeuvring depths.  The Tribunal is satisfied the proposed lots will have adequate access and be able to accommodate car parking in accordance with relevant standards.  Given the unlikelihood of future widening of the right­of­way in this instance, the Tribunal concludes that condition 3 is unnecessary in the circumstances of this case.

4. For the above reasons the Tribunal makes the following orders:

   1.The application for review is allowed.

   2.The decision under review is varied as follows:

   i)    Condition 3 is deleted.

   I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   MS M CONNOR, MEMBER

Annexure 1

Annexure 2