GAUCI and WESTERN AUSTRALIAN PLANNING COMMISSION
[2017] WASAT 42
•10 MARCH 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: GAUCI and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 42
MEMBER: MS R PETRUCCI (MEMBER)
HEARD: 1 DECEMBER 2016
DELIVERED : 10 MARCH 2017
FILE NO/S: DR 252 of 2016
BETWEEN: EUGENIA GAUCI
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision Land coded R20 Residential zoning Whether a party may give expert evidence Average lot size requirements Calculation of average lot size Whether subdivision capable of approval Orderly and proper planning Requirement for comprehensive strategic urban planning studies in local planning strategy Weight to be given to WAPC's Interim Policy 2014 and Interim Practice 2015 Whether adverse planning precedent
Legislation:
City of Melville Community Planning Scheme No 5
City of Melville Local Planning Scheme No 6
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(b)
Planning and Development Act 2005 (WA), s 135, s 136, s 138, s 143, s 143(2)
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Planning Policy 3.1 - Residential Design Codes
Strata Titles Act 1985 (WA), s 31A
Result:
Application for review dismissed
Decision of respondent affirmed
Summary of Tribunal's decision:
The applicant purchased a residential lot in Bateman adjacent to a lot which had received approval from the Western Australian Planning Commission for subdivision into two equal lots. The applicant sought subdivision approval but it was refused.
Relevant to the consideration of the matter was the calculation of the average lot size. The Tribunal concluded that the better view is that the term 'overall subdivision' in cl 3.2.2 of the Development Control Policy 2.2 Residential Subdivision means the area of the site subject to the subdivision application (that is the two lots for the proposed site) rather than the 'street block area'. Therefore, the calculation of the average lot size in this case was limited to dividing the site area (850m²) by the number of proposed lots (two) which equates to an average lot size of 425m². Calculation of the average lot size for the 'street block area' would be relevant, for example, in considering if the average block size of the site is in keeping or consistent with the block size characteristic of the locality.
Further, relevant to the consideration of the matter was the weight to be given to the Interim Policy 2014 and the Interim Practice 2015 which the respondent described as 'unfortunate'. Both of these documents arose for internal use by the Western Australian Planning Commission in an attempt to relieve the waiting time for matters that required consideration by the Statutory Planning Committee. The Tribunal afforded no weight to the Interim Policy 2014 and its successor the Interim Practice 2015 in making its decision.
Also, relevant to the consideration of the matter was the recent City of Melville Local Planning Strategy. Also considered was whether the requirement for comprehensive strategic urban planning studies for Strategic Development Area (including the Bull Creek Station Precinct Transit Orientated Design), referred to in the local planning strategy, was necessary before subdivision of the site could be considered. The question for the Tribunal was whether, because of the local planning strategy, it would be appropriate to allow subdivision of the site without there first being in place a structure plan prepared and consistent with the requirements of the local planning strategy. The Tribunal concluded that, to allow the proposed subdivision of the site without a form of structure plan available to illustrate the relationship between the proposed subdivision of the site and the future residential development of the Bateman area, would not be consistent with orderly and proper planning.
Finally, the Tribunal found that the subdivision would set an undesirable precedent because it would not be distinguishable from any later application in this locality while the current planning controls remain in place.
The Tribunal dismissed the application for review and affirmed the refusal of the respondent.
Category: B
Representation:
Counsel:
Applicant: Mr Ian McKellar and Ms Tamasin Simon (Acting as Agents)
Respondent: Dr Stephen Willey and Ms Rachel Paljetak
Solicitors:
Applicant: N/A
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported, WATPAT, Appeal No 13 of 1988, 21 October 1988)
BGC (Australia) Pty Ltd and Shire of Murray [2010] WASAT 180
Bingwa and Western Australian Planning Commission [2007] WASAT 204
Bluepoint Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 320
Bojanich and Western Australian Planning Commission [2006] WASAT 315
Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111
Bormolini and Western Australian Planning Commission [2014] WASAT 121
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Dilatte & Anor v MacTiernan [2002] WASCA 100
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60
Landpark Holdings Pty Ltd v Western Australian Planning Commission [2007] WASAT 130
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Melvista Park Pty Ltd and Western Australian Planning Commission [2009] WASAT 52
Mills v District Council of Willunga (1986) 61 LGRA 29
Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98
Nicholls and Western Australian Planning Commission [2005] WASAT 40
Penny and Western Australian Planning Commission [2009] WASAT 248
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is an application for review of the decision of the Western Australian Planning Commission (WAPC or respondent) refusing Ms Gauci's (applicant) application, lodged in her capacity as trustee for the Gauci Family Trust, with the City of Melville on 23 May 2016, to subdivide 850m² of land at Lot 69 Electra Street, Bateman into two residential lots of 425m² each in a sidebyside configuration with a 10.06 metre frontage to Electra Street and a length of 42.24 metres for residential purposes (the site, the subject site or Lot 69). The land is more particularly described as Lot 69 on Plan 8418 comprised of Certificate of Title Volume 12 Folio 230A. The existing residential dwelling and all other improvements are to be removed.
On 31 May 2016, the City of Melville did not support the application on the basis the proposed subdivision did not meet the average lot size of 450m² per the State Planning Policy 3.1 Residential Design Codes (RCodes). Western Power and the Water Corporation raised no objection to the proposed subdivision subject to the imposition of standard servicing conditions.
On 9 August 2016, the WAPC refused the application for the following two reasons:
a)the proposed subdivision does not comply with the RCodes, the Development Control Policy 2.2 Residential Subdivision (DCP 2.2), and the City of Melville Local Planning Scheme No 6 (LPS 6 or Scheme) by reason that the proposed lots do not fulfil the average lot size requirements for the R20 density code as specified in Table 1 of the RCodes; and
b)the proposed subdivision would set an undesirable precedent for the further subdivision of other lots of a similar size in the locality which would undermine the objectives and provisions of LPS 6 for lots subject to the same density coding.
The applicant, on 22 August 2016, applied to this Tribunal for review of the WAPC's decision.
The applicant operates a real estate business in Bateman and the surrounding locality. In her written statement to the Tribunal dated 23 November 2016, the applicant wrote that she purchased the site with the full knowledge that:
a)the neighbouring property, Lot 70, is exactly the same size (850m²) as the subject site and had been approved by the WAPC for subdivision into two lots (of 425m² each) on 7 August 2015; and
b)the properties at Lot 67 Electra Street (759m²), Lot 51 Salmond Way, Bull Creek (701m²) and Lot 106 Ripple Way, Bateman (842m²) were approved by the WAPC for subdivision in 2015 and the properties at Lot 72 Flinders Crescent, Bull Creek (824m²) and Lot 193 Scandrett Way, Bateman (706m²) were approved by the WAPC for subdivision in 2016.
A directions hearing was held on 23 September 2016 where programming orders were made for filing of documents and submissions and a final hearing was listed for 1 December 2016.
Site and locality
The City of Melville is located about eight kilometres from the Perth General Post Office. It is predominantly residential with some industrial and commercial land uses. The City of Melville encompasses a total area of about 52km² including 18 kilometres of river foreshore and has a population density of approximately 18.34 people per hectare. Over 80% of dwellings are separate houses which reflects the finding that the City of Melville largely plays a residential role as an area that historically provided housing opportunities for family households (see section 4.3.11 of Pt 2 of the City of Melville Local Planning Strategy which was endorsed by the WAPC on 18 April 2016) (Local Planning Strategy).
The site is located in the suburb of Bateman which is part of the City of Melville and is bound by Leach Highway to the north, Kwinana Freeway to the east, South Street to the south and Murdoch Drive to the west. Bateman is zoned 'Urban' under the Metropolitan Region Scheme (MRS) and as residential R20 under the City of Melville Community Planning Scheme No 5 (CPS 5) (gazetted in December 1999) which was superseded by LPS 6 (gazetted on 27 May 2016).
The aerial imagery provided to the Tribunal by the respondent indicates that most of Bateman was developed in the late 70s and early 80s and by 1981 the suburb was developed with single and semidetached houses (with the exception of a unit development).
According to the Local Planning Strategy, the area has developed with a predominance of low density residential development consisting of predominantly singlestorey, older housing stock, with both single dwellings and semidetached dwellings within large curtilages which do not have a garage or carport as a dominant feature and contain low vegetated setbacks.
In line with the aims of the Central Metropolitan Perth SubRegional Strategy, the City of Melville reported in the Local Planning Strategy at page 6 that its local strategic plan has explored ways to reduce the dominance of low density residential and increase the proportion of medium to high densities. This, according to the City of Melville, is to be achieved by encouraging the intensification of the District Centres and making use of the potential of public transport nodes and corridors. Finally, the City of Melville reports that residential developments in the form of mixed use will be encouraged in line with State Planning Policy 4.2 - Activity Centres for Perth and Peel (SPP 4.2).
Consideration
Before considering the substantive issues, the Tribunal first considered two issues raised by the parties. The first issue concerns the applicant's written witness statement, and whether she can give expert evidence. The second issue concerns whether the respondent's Interim Policy 2014 and Interim Practice 2015 are relevant planning considerations.
Can a party give expert evidence?
On 30 November 2016 (the day before the hearing) Ms Angela Milne of the State Solicitor's Office, for the respondent, wrote to the Tribunal to advise that the respondent objected to the admission of the applicant's witness statement as she was seeking to give expert evidence in the field of 'real estate marketing in the locality of Bateman and surrounding areas'. The basis for the objection was that an expert witness who has a direct financial interest in the outcome of an application cannot observe the expert's obligations to the Tribunal, and in particular, the overriding duty to assist the Tribunal impartially on matters relevant to the expert's area of expertise and the paramount duty to the Tribunal and not to the engaging party: Melvista Park Pty Ltd and Western Australian Planning Commission [2009] WASAT 52 (Melvista).
In reply, Mr McKellar, for the applicant, stated that the Tribunal in Melvista allowed the witness statement of the expert witness with a financial interest in the matter into evidence. Mr McKellar stated that the Tribunal there concluded at [14]:
… [he] would not allow those parts which are in the nature of expert opinion as evidence, but rather as arguments which he can express on behalf of the applicant.
Mr McKellar submitted that the applicant in this matter had a right to be heard by the rule of natural justice and concluded that the appropriate course of action was for the Tribunal to hear the evidence of the applicant as evidence of fact, and for the Tribunal to attribute to it its own views as to whether the evidence should be considered that of an expert or not.
At the commencement of the final hearing, the Tribunal advised the parties that it would allow the applicant's witness statement into evidence but would not allow those parts which were in the nature of expert opinion in the field of real estate marketing in the locality of Bateman and surrounding areas, as evidence, but rather as arguments. This was because, following Melvista, as the applicant had a direct financial interest in the outcome of the application she could not observe the expert witness' obligations to the Tribunal, and in particular, the overriding duty to assist the Tribunal impartially on matters relevant to the expert's areas of expertise.
Are the WAPC's Interim Policy 2014 and Interim Practice 2015 relevant planning considerations?
Ms Victoria Highfield Brown, a senior planning officer of the Department of Planning, was called as a witness by the respondent. She explained that the purpose of the WAPC's Interim Policy 2014 was to change internal delegation requirements to relieve the waiting time for matters that were required to be considered by the Statutory Planning Committee (SPC). She noted that agenda leadin times for the SPC were considerable and therefore efforts were made to refine processes to ensure that where possible the WAPC could make decisions within the 90 day period for processing subdivision applications prescribed by s 143(2) of the Planning and Development Act 2005 (WA) (PD Act).
Further, Ms Brown explained the WAPC Interim Policy 2014 was adopted by the SPC on 9 December 2014 for a period of 12 months to allow officers with delegated authority to grant approval for subdivision applications that sought a variation to the average lot size of a subdivision. She reiterated it was an attempt to deal with exceptional cases that did not strictly comply with the average lot size requirements of the RCodes, but could nonetheless be supported due to site specific circumstances. Therefore, according to Ms Brown, the WAPC Interim Policy 2014 was intended to deal with those out of the ordinary applications, such as to round off a subdivision pattern in a particular area, which warranted support despite being inconsistent with the RCodes.
Ms Brown stated the WAPC's Interim Policy 2014 was not having its intended effect and was therefore 'scaled back and superseded' by the WAPC's Interim Practice 2015. She explained the effect of the Interim Practice 2015, which was adopted by the SPC on 15 December 2015, was to enable officers with delegated authority to approve subdivision proposals for a sidebyside configuration (such as the subdivision application before the Tribunal) in only two circumstances:
a)where the site is within a walkable distance of an Activity Centre (as that term is defined by SPP 4.2); or
b)where the site is located in an area where the character of the area has been altered from the original layout as a result of subdivision that occurred under a former higher density coding.
Ms Brown stated the Interim Practice 2015 made it clear that other planning matters in addition to the statutory planning framework, such as the impact of the character of the area, the subdivision potential of the locality and the strategic objectives of the local planning framework, were to be considered in determining whether to approve an application.
The respondent in its closing submissions described the WAPC's Interim Policy 2014 and the Interim Practice 2015 as 'unfortunate'. Further, the respondent noted neither the policy nor the practice statements were advertised or the subject of public debate or submissions, and therefore cannot be regarded as the WAPC's policy position. To that extent, the respondent submitted that neither the Interim Policy 2014 nor the Interim Practice 2015 can be regarded as an attempt to modify the RCodes.
Finally, the respondent acknowledged that the Tribunal, to the extent it stands in the shoes of the respondent, in reviewing the matter is entitled to have regard to the WAPC's Interim Policy 2014 and its successor, the Interim Practice 2015. However, the respondent suggested that little weight should be afforded to them because, unlike the RCodes, they are not public policy and were not conceived after considerable public discussion: Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98 citing Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1.
The Tribunal notes the WAPC Interim Policy 2014 permitted variations to cl 3.2.3 of DCP 2.2 in regards to subdivision applications for a period of 12 months from 9 December 2014 (the date of adoption by the SPC). The policy was to apply where:
a.the application is for land located within the Metropolitan Planning Central area;
b.the proposed lots meet the minimum lot area requirements as prescribed in Table 1 of the R Codes, without variation;
c.the proposal is for a corner site, a side by side lot configuration or for land that has dual frontage to dedicated road or right of way;
d.the proposal is not for a battle-axe lot configuration;
e.the proposed lots are of a regular shape;
f.the subdivision site is fully serviced;
g.the proposed lots meet the minimum frontage as prescribed in Table 1 of the R Codes;
h.the average lot area across the subdivision/survey division does not apply.
The WAPC Interim Practice 2015 permitted similar variations to the above. However, the requirements were tighter including the practice was only available for the subdivision of residential zoned land within the Metropolitan Planning Central geographical area and only for land coded R30 and below. Specifically, the following requirements had to be satisfied:
i.the proposed lots shall meet the minimum lot area requirements as prescribed in Table 1 of the R Codes, without variation; and
ii.the proposal is for a corner site, a side by side lot configuration or for land that has dual frontage to dedicated road or right of way; and
iii.the proposal is not for a battleaxe lot configuration; and
iv.the proposed lots are of a regular shape; and
v.the subdivision site is fully serviced; and
vi.the proposed lots meet the minimum frontage as prescribed in Table 1 of the R Codes.
Further, the WAPC Interim Practice 2015 provides that sidebyside configurations may be supported where the site:
•is within a walkable distance of a boundary of an activity centre as defined by State Planning Policy 4.2 Activity Centres for Perth and Peel; or
•located within an area where the character of the area has been altered from the original layout as a result of subdivision which occurred under a former higher density code.
In addition to the above, the WAPC Interim Practice 2015 requires all applications to be considered in the context of:
•the character of the area; and
•the strategic objectives of the planning framework; and
•the subdivision potential of the locality of the application site.
Finally, the WAPC Interim Practice 2015 provided that if there is a risk that the density could be undermined, as a result of exercising the discretion under the Practice, the application will either require a decision of the SPC; or be refused under delegated authority. The Tribunal was told at final hearing that the SPC was not involved in considering the application.
Although the applicant did not engage in the discussion of the legal status of the WAPC Interim Policy 2014 and its successor the WAPC Interim Practice 2015, the Tribunal must ask itself the question whether the respondent is bound by its policy and practice statements (whether interim or final) or whether there is discretion to deviate from them.
A policy 'provides a guideline of the principles that the [planning authority] can be expected to apply when making decisions … it does not provide a binding set of principles that must be applied in all cases': Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111 at [23].
The Tribunal accepts that a policy or practice is just what it says a policy or a practice, and not a law or a regulation. While a policy or a practice may, for good sense and proper government, justify adherence to a policy or a practice, it is not to be treated as a statute. Simmonds J in Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 at [37] reminded decisionmakers in the planning area that they will fall into error if they regard themselves as bound by a policy and inflexibly apply that policy.
According to the Coty principle, where matters have proceeded to the state where future planning proposals such as draft policies and instruments are being 'seriously entertained', they may be taken into account by the decisionmaker, however, the weight to be given to them will depend on the circumstances: Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 (Coty).
Following the commencement of the deemed provisions in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations), on 19 October 2015 the Coty principle has been given legislative force under cl 67(b) of Sch 2 of the Regulations as follows:
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving[.]
In cl 67(b) the term 'planning instrument' refers to a local development plan and a local planning policy that has been advertised under the Regulations: Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [204].
The Tribunal is satisfied that the WAPC's Interim Policy 2014 and Interim Practice 2015 are not a local development plan or local planning policy that has been advertised. Rather, the instruments are at best 'other proposed planning instrument[s]' which the City of Melville did not adopt or approve, however were adopted by the SPC in an attempt to relieve the waiting time for matters that required its consideration.
For these reasons, the Tribunal is satisfied that there is no cogent reason to consider the Interim Policy 2014 and the Interim Practice 2015 as relevant and to be taken into consideration in this case. Consequently, the Tribunal has afforded no weight to these documents in making its decision.
Substantive issues
The parties agreed there are two substantive issues for determination by the Tribunal, which are interrelated, as follows:
a)whether the proposed subdivision complies with the RCodes, DCP 2.2, and LPS 6 by reason that the proposed lots do not fulfil the average lot size requirements for the R20 density code as specified in Table 1 of the RCodes.
This issue requires the Tribunal to determine whether allowing lots not complying with the average lot size requirements of the R20 coding would compromise the principles of orderly and proper planning; and
b)whether the proposed subdivision would set an undesirable precedent for the further subdivision of other lots of a similar size in the locality which would undermine the objectives and provisions of LPS 6 for lots subject to the same density coding.
This issue requires the Tribunal to determine the weight to be given to precedent as a consideration.
Legislation and policy
The PD Act prohibits the subdivision of land in Western Australia without the approval of the WAPC (s 135 and s 136). The WAPC may grant its approval to subdivide any lot subject to conditions which shall be carried out before the approval becomes effective (s 138 of the PD Act). However, s 138(2) of the PD Act precludes the WAPC (and the Tribunal on review) from giving an approval that conflicts with the provisions of a local planning scheme, unless one of the seven exceptions in s 138(3) of the PD Act is established: Landpark Holdings Pty Ltd v Western Australian Planning Commission[2007] WASAT 130 (Landpark) at [29]. Finally, s 143 of the PD Act makes provision for the WAPC (and the Tribunal on review) to approve or refuse to approve a plan of subdivision or require an applicant for approval to comply with such conditions as the WAPC (and the Tribunal on review) thinks fit to impose before approving the plan.
In relation to the review of a planning decision, s 27(2) of the State Administrative Tribunal Act 2004 (WA) provides that:
the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
Accordingly, the obligation of the Tribunal is to produce the correct and preferable decision at the time of the Tribunal's decision rather, than at the time at which the reviewable decision was made by the original decisionmaker: Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 at [24].
The case was argued by reference to, and the Tribunal has had regard to, the following planning instruments as identified below:
a)State Planning Policy 1 - State Planning Framework Policy (February 2006);
b)RCodes;
c)Development Control Policy 1.1 - Subdivision of Land General Principles (June 2004);
d)DCP 2.2;
e)LPS 6; and
f)Local Planning Strategy.
In its introduction to DCP 2.2, the WAPC sets out its requirements for subdivision of land into residential lots and that it is closely related to the site area per dwelling standards contained in the RCodes and to other WAPC policies. Further, the introduction to DCP 2.2 provides that it is intended that, when read together, all policies create a flexible framework for the use of statutory planning powers, within which the creation of a wide range of housing types and residential environments is possible.
Importantly, the policy objectives of DCP 2.2 are:
•To establish a consistent and coordinated approach to the creation of residential lots throughout the State.
•To adopt criteria for residential lots which will ensure that each lot is provided with a suitable level of amenity, services and access.
•To facilitate the supply of residential lots of a wide range of sizes and shapes which reflect the statutory provisions of local planning schemes, the availability of reticulated sewerage and the need for frontage to public roads.
Clause 1.2 of the RCodes states the purpose of the RCodes is to provide a comprehensive basis for the control of residential development throughout Western Australia. Further the objectives of the RCodes are listed as:
(a)To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives.
(b)To encourage design consideration of the social, environmental and economic opportunities possible from new housing and an appropriate response to local amenity and place.
(c)To encourage design which considers and respects heritage and local culture.
(d)To facilitate residential development which offers future residents the opportunities for better living choices and affordability.
Consideration
There was no dispute between the parties that it was open to the applicant to apply for the subdivision of the site and for the Tribunal to determine whether or not to approve the subdivision.
Issue 1 Does the subdivision application comply with the RCodes, DCP 2.2 and LPS 6 by reason the proposed lots do not fulfil the average lot size for R20 density?
It was not in dispute that the proposed subdivision complies with the minimum lot size for R20 density coding (350m²). What is in dispute is how the average lot size for the site is to be calculated. To answer that question consideration of the term 'overall subdivision' in cl 3.2.3 of DCP 2.2 is required.
Clause 3.2 of DCP 2.2 is headed 'Lot Sizes'. Clause 3.2.1 is a general statement whereas cl 3.2.3 and cl 3.2.5 are specific statements. Those clauses relevantly provide:
3.2.1Generally, the minimum lot size and frontage requirements of the relevant R-Code will form the basis for the subdivision of residential land. Lot sizes greater than the specified minimum will also be considered unless the WAPC, having regard for the reasons for the selection of the particular RCode and any commitments made to service infrastructure, considers that uneconomic use of services would result.
…
3.2.3In existing residential areas, the WAPC will only consider subdivision or survey-strata applications proposing variations to lot sizes for Single Houses and Grouped Dwellings below the minimum site area requirements (i.e. below the minimum and below the average lot sizes) prescribed in Table 1 of the RCodes, or elsewhere in the RCodes, where the following criteria are met:
Site Area Variations to the Average Lot Size Only
•All lots in the subdivision meet the minimum lot size requirements;
•The variation reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the RCodes; and,
•The applicant has provided information that demonstrates the variation will have a beneficial outcome for the community, or the WAPC forms the opinion that it will have a beneficial outcome for the community.
...
3.2.5For the purpose of calculating average site area referred to in Table 1 of the R-Codes, the WAPC accepts that, with many largescale projects, subdivisions will proceed in stages following an overall structure plan for the locality or district concerned and that component stages may not separately comply with the average lot size requirement. In such cases, the WAPC is prepared to base the required calculation upon subdivision of the entire project area provided that, where a particular stage does not comply, it can be assured that subsequent stages will restore compliance, and that those stages will be completed within a reasonable period of time.
(Tribunal emphasis)
Applicant's submissions
Mr Paul Bashall, the principal of Planwest, consultants in planning, design and management was called as a witness by the applicant. He agreed with Ms Paljetak (for the respondent) that the ordinary approach of the respondent in calculating the average lot size is to only look at the site. When questioned, what he thought the term 'overall subdivision' in cl 3.2.3 of DCP 2.2 meant, Mr Bashall conceded that he did not know, but stated that if it did not include anything else except the site, the drafters of cl 3.2.3 would not have used the word 'overall'.
Mr Bashall accepted that if the 'average' is taken only over the site then the average lot size for the site is 5.55% below the desired average of 450m². However, he submitted that if the average is taken over the 'street block area', in this case 59 lots or 4.168 hectares (per figure 3 in Mr Bashall's witness statement dated 23 November 2016), the street block area average does not fall below the R20 code requirement (that is, 4.168 hectares/450m² allows for about 92 residential dwellings). Consequently, Mr Bashall submitted, contrary to Ms Brown's view (expert witness for the respondent), that calculating the average lot size in this case should be done using the 'street block area'. Further, according to Mr Bashall, the proposed subdivision brings the 'street block area' towards the desired R20 average, whereas refusal of the subdivision would result in the R20 average never being achieved over the immediate urban area.
Mr McKellar, for the applicant, contended that the respondent wrongly confined itself to a 'way too narrow' question by applying a lot size average test pursuant to Table 1 of the RCodes. He submitted that in properly applying averaging densities to a development, the respondent (and therefore the Tribunal on review) must look beyond just the borders of the site and calculate the density average over a wider area.
Further, Mr McKellar asserted that cl 3.2.3 of DCP 2.2 read with cl 3.2.5 supports his view that the term 'overall subdivision' in cl 3.2.3 contemplates an examination of a multitude of lots over a wider area which is distinguishable from looking at just the subject site. In other words, Mr McKellar is of the view that the respondent (and therefore the Tribunal on review) should look beyond the site to calculate the average lot size because the RCodes are designed to achieve an urban density across the board as opposed to just the site.
Mr McKellar submitted that based on Landpark and Bormolini and Western Australian Planning Commission [2014] WASAT 121 (Bormolini), the Tribunal has a wider discretion to part company with the RCodes.
In Mr McKellar's view, the matter is about urban development and how an urban area might evolve and part of that would be averaging an urban density over the area using the approach taken in Bormolini. That case, according to Mr McKellar, decided that while there is no strict application of the RCodes to subdivision, there is a relationship between the RCodes and subdivision and that the Tribunal is to have regard to the impacts that the subdivision will bring about on the area, for example, by asking the question, 'Is the creation of lot sizes by the fact of the approval going to be so small that they will be out of place and out of character in the area?'
In support of Mr McKellar's statements, Mr Bashall stated that it was not unheard of that the WAPC looked beyond the boundaries of the subdivision application to decide what average lot size should be met for an area.
Mr McKellar questioned whether there is a structured planning process going through the system and whether there is a resultant change. In other words, Mr McKellar asserted that if the argument is that replanning is required, the application for subdivision would have to infringe upon that in order for the respondent (or the Tribunal on review) to refuse the application. He said the City of Melville had approved higher density in the area and therefore the relevant question is, 'Would the subdivision of Lot 69 stop the City of Melville's planning process?' In his view, the answer is 'No' and therefore the application should be approved.
Finally, the applicant submitted that Element 3, requirement R12 of the WAPC's Liveable Neighbourhoods policy requires density ranging from at least 20 to 30 dwellings per site hectare within a walking distance of 800 metres of a train station (the site is approximately 760 metres walking distance from the Bull Creek station). Therefore, according to the applicant, if the current subdivision application (and like subdivisions) is not approved within the urban cell in which the site is located, that the density target under the Liveable Neighbourhoods policy will never be achieved.
Respondent's submissions
Dr Willey, for the respondent, submitted that the whole idea of a lot as it exists, which is what Table 1 of the RCodes is directed to, is regulated through subdivision. He said the purpose of the minimum lot size is the absolute minimum as to how big each allotment will be and the average lot size serves a different purpose it is to ensure a range of lot sizes for a range of people to use, noting that families are different, households are different, and people want different lot sizes. This meant, according to Dr Willey, that the RCodes provide a degree of discretion to relax the average lot size requirements.
The respondent submitted that the proposal for subdivision does not satisfy the average lot size requirement for the R20 density coding, nor does the proposal meet the criteria for variation to the average lot size requirement for the R20 density coding under cl 3.2.3 of DCP 2.2.
Further, the respondent submitted that the correct approach in determining the average lot size is to average the area of the lots proposed to be created, in this case the two lots average is 425m² (850m²/two lots) which results in a 5.55% variation below the average lot size of 450m² for R20 density coding.
Ms Brown, the expert called by the respondent, stated that when establishing the average lot size for a subdivision, the average lot size should be restricted to the subject site, or in accordance with cl 3.2.5 of DCP 2.2, or the staged development of a broader subdivisional area subject to an approved structure plan. She said the subdivision application cannot be considered to be part of a broader, structure planned area which will be further subdivided, and therefore cl 3.2.5 has no application in this case. She concluded, in this matter, the average lot size was 425m².
Conclusion
The Tribunal finds that cl 3.2.5 of DCP 2.2 is not relevant to this matter as the current application is not a largescale project.
The Tribunal notes that in Bormolini, Ms Donahue, the town planner in giving evidence for the respondent, calculated the average lot size for 'the street block' for the purpose of considering whether the proposed lot sizes before the Tribunal in that matter would be consistent with the block size characteristic of the locality. This is very different to the applicant's argument that the 'street block area' is to be used to calculate the average lot size for the subject site.
The Tribunal accepts that, in general, a 'street block area' will have a variety of lots sizes, and therefore may, overall, achieve the required average lot size, particularly where there are larger lots in the area. The consequence of this is that a small quantitative overall reduction in the average lot size across a large number of lots would mask the departure from the average lot size: Penny and Western Australian Planning Commission [2009] WASAT 248 at [65].
The Tribunal agrees with the respondent that the better view is that the term 'overall subdivision' in cl 3.2.3 of DCP 2.2 means the area of the site subject to the subdivision application (that is, the two lots which will make up Lot 69 if the application is approved) and not a 'street block area' as suggested by the applicant. Calculation of the average lot size for the 'street block area' would be relevant, for example, in considering if the average block size of the site is in keeping or consistent with the block size characteristic of the locality.
This means the average lot size for the site is 425m² (850m²/two lots) which is less than the minimum 450m² required in the RCodes. The variation is 5.55% below the average lot size. This is greater than the 5% variation provided for in cl 3.2.2 of DCP 2.2.
Even if the application for subdivision is noncompliant with the average lot size for R20 coding, as concluded by the Tribunal above, it is still open for the Tribunal, on review, to approve the application. However, in further considering the application, the Tribunal notes that planning principles should not be lightly departed from without a sound basis for doing so. In this regard, Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 stated at [182]:
While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]
Mr Bashall, the expert called by the applicant, submitted that the site is proximate to the Bull Creek rail station node which is within the area the City of Melville intends to develop, that is, areas around railway or bus stations to greater densities. He said the site was R20 prior to the introduction of the Local Planning Strategy, therefore it can be taken that the site is mooted to be a higher density of at least R25 (average lot size of 350m²) under the Local Planning Strategy which would easily accommodate the subdivision of the site.
Further, Mr Bashall noted that section 3.3.4 of Part 1 at page 18 of the Local Planning Strategy recommends:
Gaps and opportunities that would improve performance outcomes of activity centres are:
•Increase the density and diversity of housing in and around activity centres to improve land efficiency, housing variety and support centre facilities …
Mr Bashall said, in his view, these increases in the Local Planning Strategy are consistent with cl 5.3 of the Statement of Planning Policy 3 Urban Growth and Settlement (February 2006) (SPP 3) which specifies three key elements at page 1069:
•consolidating residential development in existing areas;
•giving priority to infill development in established urban areas; and
•locating higher residential densities in locations accessible to transport and services.
Finally, Mr Bashall submitted that section 3.1.1(6) of the Local Planning Strategy states that the preference in Bull Creek and Leeming is for less 500m² 800m² lots and an increase in 300m² lots.
In reply, the respondent submitted there are three related reasons why there is no sound basis to depart from the RCodes, DCP 2.2 or LPS 6 in this case. They are:
a)LPS 6 was gazetted on 27 May 2016. It is the most recent policy on how land in the City of Melville is to be used and developed. Under LPS 6 the site has retained its R20 density coding, which provides a strong indication that it is not currently intended that the site or land in the immediate locality of the site is to be the subject of residential infill. Therefore, if the application was approved, this would result in a defacto up coding of the immediate locality to R25, a result not envisioned by, or planned for in LPS 6.
b)The Local Planning Strategy (February 2016 and endorsed by the WAPC in April 2016) was prepared in conjunction with LPS 6 and contemplates that in the future there will be higher residential densities and mixed use developments in the close proximity to train and bus stations, including around Bull Creek train/bus transfer station. However, the Local Planning Strategy states expressly that:
[t]he City of Melville will be required in accordance with Western Australian Planning Commission Policy to undertake structure planning for the transit oriented precinct around the Bull Creek train/bus transfer station.
No structure planning has occurred as yet. It follows that, in circumstances where the necessary structure planning to address the context of the locality, the needs of the community, and the provision of adequate infrastructure has not occurred, approval of the application for subdivision would be neither orderly nor proper.
c)Approval of the application would lead to development inconsistent with the character of the immediate locality which is singlestorey, older housing stock with both single dwellings and semidetached dwellings within large curtilages. The older housing stock has street setbacks of 8 metres to 11 metres, providing multiple openings with opportunity for passive surveillance to the streetscape. Further, single carports or garages are not a dominant feature, being contained under the primary roof and set back in accordance with, or behind the dwelling.
The respondent submitted that the potential development of the site, consistent with contemporary housing design, would likely be of a greater bulk and scale with reduced lot boundary and street setbacks. Also, the respondent suggested that it is likely that a garage will be a more dominant feature of the potential development which may be set back from the street by as little as 4.5m². Finally, the respondent argued that this possible divergence from the existing character of the immediate locality would undermine and alter the streetscape, character and amenity of the locality in an ad hoc manner.
The Tribunal notes the variation below the average lot size in this case is 5.55% which is not as significant as the 22.24% variation in Bormolini (at [30]). Further, the Tribunal notes the site is located in Bateman, and not in the suburbs of Bull Creek or Leeming referred to by Mr Bashall, therefore the preferences of lot sizes in those suburbs is not relevant to this matter.
The Tribunal notes one of the objectives of the 'Residential' zone per LPS 6 is to:
… provide for a range of housing and a choice of residential densities to meet the needs of the community.
Therefore it is clear that the objective and intent for the residential zone in LPS 6 is to provide a range of residential accommodation.
The Tribunal also notes the planning principle referred to in Landpark at [28] that the WAPC (and the Tribunal on review), will not generally approve a subdivision creating a residential lot of a lesser size or frontage than prescribed by the RCodes in respect of the development of the land for residential purposes. This principle reflects and stems from the close and fundamental connection between residential subdivision and development as a matter of orderly and proper planning as well as reflecting the central role in residential planning in the RCodes and local planning policies of density control by allocation of residential density coding: Bormolini at [37].
As a matter of orderly and proper planning, as well as required by s 138(2) of the PD Act, in the exercise of planning discretion, the respondent (and the Tribunal on review) must give due regard to LPS 6 and to its obvious expectation that generally the development of a single house on land coded R20 under LPS 6 requires a minimum site area of 350m², and an average site area of 450m² and a minimum frontage of 10 metres and therefore will not, in general, approve an allotment of a lesser size or frontage: Landpark at [28].
However, as the RCodes state, the density provisions of the RCodes are intended to be guidelines for the WAPC, and therefore for the Tribunal in considering subdivision applications. Moreover, the Tribunal is required to give due consideration to the DCP 2.2 and other planning instruments (listed earlier).
While the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied. In Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 Barker J stated at [24]:
… the relevant consideration in many applications will [be] why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application[.]
The Local Planning Strategy supports the orderly and proper planning of the locality through increased intensity in and around Activity Centres, transport nodes and along transport corridors in order to provide a greater housing choice, improve employment and encourage sustainable transport options, without wholesale change to the suburban areas that characterise the City of Melville. Further, the Local Planning Strategy highlights the transport nodes of Canning Bridge, Bull Creek and Murdoch rail stations and Booragoon bus station to supporting an increase in densities to enhance the availability of the public transport links as well as the other facilities available in the area. Importantly, the Local Planning Strategy promotes comprehensive strategic urban planning studies to facilitate the degree of change necessary to effectively achieve an acceptable level of urban density and land use diversity.
The Tribunal was told such strategic urban planning studies are yet to take place. However, this is not a reason for a moratorium on all development. As the Tribunal stated in SITA Australia Pty Ltd and Wheatbelt Joint Development Assessment Panel [2016] WASAT 22 at [120] each case must be decided on a case by case basis, however, generally speaking planning principle would suggest caution in this area.
The Local Planning Strategy is an endorsed policy (endorsed by the WAPC in April 2016) setting the framework for local planning as well as the strategic basis for local planning and which, in planning terms, is of recent provenance. The policy is consistent with the tenor of the respondent's main case which relates to the need to promote orderly and proper planning for the City of Melville, which includes the subject site. Also central to this notion is the need to avoid ad hoc subdivisions which might prejudice wider planning considerations which are yet to be finalised.
No cogent reasons were put forward by the applicant which would disentitle that policy from the weight that it should be afforded in this review.
According to the Local Planning Strategy (section 3.1.1 of Part 2), 91% of the community living in the City of Melville were not looking to move away and only 17% were looking for a smaller home, which suggests there is no urgent need for wholesale change to density coding, but rather to provide housing variety and choice within selected locations. Further, the Local Planning Strategy reported that the majority of residents prefer a mix of standalone houses in the suburbs on 500m² to 800m² lots and that twothirds of residents support a homogeneous street character, for example, dwellings being of a similar size and type.
The Tribunal accepts the Local Planning Strategy was prepared in conjunction with LPS 6 to set a strategic framework for local planning, as well as to set out the City of Melville's objectives for future planning and development. Based on the above statements from the Local Planning Strategy and reflecting on LPS 6 and the various planning instruments (listed earlier in these reasons for decision), the Tribunal does not accept that lot size diversity is an objective for a single street (for example, Electra Street, Bateman), although it may still be an objective for a planned structure for the locality of Bateman. Therefore, in the Tribunal's view, increasing residential density in an ad hoc way would not be consistent with the Local Planning Strategy and the various planning instruments.
According to Ms Brown, for the respondent, in the immediate locality (area between Leach Highway to the north, Mandala Crescent and the rear of the lots fronting Amur Place to the east, Bill Ellison Park to the south (Adams Street/Mandala Crescent) and Murdoch Drive to the west) there are 137 lots that vary in size from 359m² to 1,394m² with the majority of lots at 758m². Of those 137 lots, Ms Brown identified only 10 lots that meet the minimum (350m²) and average (450m²) site area requirement of R20 (as set out in Attachment VB03 to Ms Brown's witness statement) and the overwhelming majority of the lots (129 lots) only meet the minimum site area (350m²) requirement of R20.
Taking into considering the above analysis, the Tribunal agrees with the respondent's submission that the proper basis for reviewing density coding is by scheme amendment or scheme review. The City of Melville recently undertook a scheme review which confirmed the R20 coding. The Tribunal notes LPS 6 was gazetted on 27 May 2016 which was just a few days after the applicant lodged her application with the City of Melville.
According to Mr Bashall, for the applicant, there are seven lots within 'the street block' that were subdivided into two equal lot portions, some with battleaxe configuration (Figures 2 and 3 in Mr Bashall's witness statement) and of those seven lots, five lots were approved for subdivision by the WAPC with lots of a similar size to the subject site. He also noted four grouped dwellings where two dwellings (previously referred to as 'duplexes') had been built, as well as seven strata titles (and at least 17 more occur within 150 metres of the site which are not within the street block). Mr Bashall submitted that the streetscape is already evolving into a redevelopment area with many lots being divided into two and new housing development occurring.
In contrast, Ms Brown gave evidence that the existing lots within the locality that have been subdivided at the R20 density do not form a significant part of the locality and either retain the original built form of a semidetached dwelling and therefore present as part of the overall streetscape, or are generally located at street corners or street bends. Ms Brown explained that the immediate locality to the site is defined by singlestorey, older housing stock with both single dwellings and semidetached dwellings within large curtilages. The older housing stock is described to have street setbacks of 8 metres to 11 metres providing multiple openings with opportunity for passive surveillance to the streetscape and that single carports or garages are not a dominant feature, being contained under the primary roof and set back in accordance with, or behind, the dwelling.
The Tribunal agrees with Ms Brown's description of the locality (as set out in the preceding paragraphs).
The Tribunal recognises the Local Planning Strategy is a contemporary planning document which provides guidance to the City of Melville for integrated and sustainable planning and development. Section 3.1.1 of Part 2 (page 86) of the Local Planning Strategy states:
The principle to be employed is to consider opportunities for grouped dwellings around shopping centres, transport nodes and corridors and perhaps in streets where the character has already changed through infill by grouped dwelling developments and battleaxe subdivision.
The Tribunal accepts that the Local Planning Strategy provides support for an increase in residential density and mixed use developments in close proximity to train and bus stations. However, importantly, the Local Planning Strategy requires that such development is to occur through appropriate strategic structure planning. The Local Planning Strategy at section 5.1.5 of Part 1 (page 44) provides:
The City of Melville will be required in accordance with Western Australian Planning Commission Policy to undertake structure planning for the transit oriented precinct around the Bull Creek train / bus transfer station.
The Local Planning Strategy is a document:
[to define] a framework of land uses and activities and provides a broad statement of intent to guide integrated and sustainable planning and development in the City of Melville[.]
Further, the Local Planning Strategy states in its introduction that:
This strategy will enable the City to accommodate the expect-+ed growth in population without wholesale change to the suburban areas that characterise the City.
SPP 3 provides at page 1069:
The orderly planning of urban growth and settlement should be facilitated by structure plans, which should take into account the strategic and physical context of the locality, provide for the development of safe, convenient and attractive neighbourhoods which meet the diverse needs of the community, and facilitate logical and timely provision of infrastructure and services. Structure plans may consist of a hierarchy of plans ranging from broad district structure plans to more detailed plans for neighbourhoods and precincts.
As noted earlier, the City of Melville is yet to undertake such strategic structure planning.
In the Tribunal's view, the usefulness of the Local Planning Strategy is that its aim is:
… to encourage increased intensity in and around Activity Centres, transport nodes and along transport corridors in order to provide a greater housing choice [and that the Local Planning Strategy] will enable the City to accommodate the expected growth in population without wholesale change to the suburban areas that characterise the City.
The Tribunal concludes that to allow the proposed subdivision of the site without a form of structure plan available to illustrate the relationship between the proposed subdivision of the site and the future residential development of the locality, would not be consistent with orderly and proper planning. In other words, approval of the subdivision application in this case, prior to the City of Melville undertaking strategic structure planning puts the application 'cart' before the comprehensive planning 'horse': Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [10].
It is no doubt frustrating for the applicant to be faced with refusal given that the process for the City of Melville to undertake structure planning of the locality will take some time to finalise. However, as the Tribunal noted in Bojanich and Western Australian Planning Commission [2006] WASAT 315 at [67]:
The Tribunal can certainly understand the applicants' frustration with the slow pace at which strategic planning … has apparently occurred. … However, orderly and proper planning is seldom simply a matter of remedying frustrations[.]
Issue 2 Would subdivision approval set an undesirable precedent?
Applicant's submissions
The applicant asserted that no precedent will be set by the Tribunal approving the application. This is because, according to the applicant, there are numerous examples of 800m² 900m² lots in the Bateman locality being subdivided into two lots.
Further, the applicant stated the respondent ignored the fact that the immediate neighbouring site to the south (Lot 70 Electra Street, Bateman) was approved by the WAPC in 2015 for a twolot subdivision of exactly the same size and same density code (R20) as for the subject site. In this regard, the applicant said that Ms Brown's (the expert called by the respondent) evidence about whether she thought a previous subdivision approval by the WAPC was a good or bad decision is irrelevant.
Finally, Mr Bashall (the expert called by the applicant) denied the respondent's submission that approval would result in a defacto upcoding of the locality. This is because, in his view, the creation of two lots of 425m² are not so small as to fall within the range of a R25 density (which have an average lot size of 350m²).
Respondent's submissions
The respondent stated that it is settled planning law that adverse planning precedent is a relevant matter for consideration in the exercise of discretion if:
(a)the proposed subdivision is itself objectionable; and
(b)there is more than a mere chance or possibility that there may be later undistinguishable applications.
In relation to the first criterion, the Tribunal notes the terminology used by the Tribunal in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71] [77] was that the proposed development 'is not in itself unobjectionable'.
In relation to the first criterion, the respondent asserted the proposed subdivision would:
a)not be consistent with the applicable legislative and policy framework;
b)result in a de-facto upcoding in the absence of appropriate structure planning and scheme amendments;
c)significantly alter the existing character and streetscape amenity of the area; and
d)have implications for the ongoing management of the locality in relation to service provision, traffic management, community services and facilities.
In relation to the second criterion, the respondent stated there is more than a mere chance that there may be later undistinguishable applications. This is because the proposed subdivision is within the area of Bateman bounded by Leach Highway to the north, Kwinana Freeway to the east, Bill Ellison Park to the south and Murdoch Drive to the west, which comprises 173 lots. Of the 173 lots, the respondent stated 129 lots (or 74.5%) cannot be distinguished from the current subdivision application in that those lots meet the minimum but not the average site area requirements for the R20 density coding.
The respondent submitted the test in relation to adverse planning precedents is forward, rather than backward looking and involves an assessment as to the likelihood of undistinguishable applications later in time. Therefore, the applicant's reference to examples of 800m² 900m² lots in the locality where subdivision approval was granted is not relevant to the current application. In any event, the respondent stated that those subdivision applications were created either through compliant subdivision applications, or in accordance with s 31A of the Strata Titles Act 1985 (WA).
Further, the respondent stated that two prior approvals in an immediate locality comprising 173 lots does not, as a question of fact, establish a precedent for that immediate locality.
In regards to Lot 70 Electra Street, Bateman the respondent submitted that the approval was not consistent with the applicable planning framework and should not have been approved and, therefore, is not a precedent for the purpose of considering whether the applicant's proposed subdivision should be approved.
In regards to Lot 67 Electra Street, Bateman the respondent submitted that subdivision did not comply with the average lot size requirements, however, that approval is distinguishable on the basis that it is a corner lot with frontage to more than one street, thereby justifying approval.
Finally, the respondent submitted that the approvals for Lot 70 Electra Street, Bateman and 14 Ripple Way, Bateman do not constitute good precedent and should not be followed insofar as those approvals were reliant on the WAPC Interim Policy 2014 as modified by the WAPC Interim Practice 2015.
Conclusion
As set out earlier, the Tribunal has not placed any weight on the WAPC Interim Policy 2014 and its successor, the Interim Practice 2015 as planning considerations in this matter.
In regards to Lot 70 Electra Street, Bateman (WAPC file number 152101), the City of Melville rejected the application for subdivision as it did not meet the average lot size (450m²) requirements of the RCodes for the designated R20 coding, being a variation of 5.55%. The WAPC agreed that the proposal did not comply with the average lot size required for R20 density code, however, decided that the proposal was to be assessed against the Interim Policy 2014. Approval for subdivision was granted by the WAPC on 29 July 2015. The WAPC stated the proposal had the following beneficial outcomes:
i)Will allow for the creation of lots that meet the minimum lot size required by the RCodes and achieve direct frontage access to a constructed public roads [sic];
ii)Assists with using residential land to its best advantage by enabling an additional lot to be created;
iii)Provides a wider choice of residential lot sizes in the locality;
iv)Makes best use of existing infrastructure and services located in close proximity to the proposal site;
v)Will contribute towards the dwelling targets of the draft Central Metropolitan Sub-regional Strategy and Directions 2031;
vi)Proposal would not be detrimental to the amenity of the locality nor contrary to orderly and proper planning.
For Lot 106 Ripple Way, Bateman (WAPC file number 152314), the City of Melville rejected the application for subdivision as it did not meet the average (450m²) site requirements of the RCodes for the designated R20 coding, being a variation of 6.4%. The WAPC reported that approval may act as a precedent for further subdivision of '80% of lots in the suburb', however, decided to grant subdivision approval on 3 November 2015 on the basis that the proposal met the criteria set out in the WAPC Interim Policy 2014. The WAPC concluded:
•the proposal will facilitate infill development in an established residential area, utilising existing infrastructure and services;
•it will allow for the creation of lots that meet the minimum lot size required by the RCodes and achieve direct frontage access to a constructed public road;
•the proposed lots are capable of being developed in accordance with the character of surrounding development;
•the proposal makes best use of existing infrastructure and services located in close proximity to the proposal site;
•the proposal will provide a wider choice of residential lot sizes in the locality;
•this small infill proposal will contribute towards the dwelling targets of the Central Metropolitan Sub-regional Strategy and Directions 2031; and
•the proposal would not be detrimental to the amenity of the locality nor contrary to orderly and proper planning.
Consistency in decisionmaking is an important planning principle: Dilatte & Anor v MacTiernan [2002] WASCA 100, as is the application of policy so that landowners and developers, and their neighbours, have a clear idea of the matters they need to address when considering the use of a parcel of land: Bluepoint Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 320 at [26]. However, the principle of consistency in decisionmaking does not follow if the earlier decision was clearly in error or there was some relevant change in the planning circumstances between the first and second decision: BGC (Australia) Pty Ltd and Shire of Murray [2010] WASAT 180 at [46].
The Tribunal notes the WAPC's decision of 3 November 2015 granting approval for the subdivision of Lot 106 Ripple Way, Bateman and the WAPC's decision of 7 August 2015 granting approval for subdivision of Lot 70 Electra Street, Bateman, were both made well before the Local Planning Strategy came into operation (February 2016 and endorsed by the WAPC in April 2016). It is clear that the Local Planning Strategy is the 'key strategic urban planning' document for the City of Melville which provides for a change in the framework for local planning as well as the strategic basis for the local planning scheme. As a result, the Tribunal is satisfied that the principle of consistency in decisionmaking may not be relevant in this case.
The fact that a subdivision will result in an undesirable precedent is a valid consideration that has been accepted by the Supreme Court of South Australia in Mills v District Council of Willunga (1986) 61 LGRA 29. However, as stated in Aspen Pty Ltd v State Planning Commission (unreported, WATPAT, Appeal No 13 of 1988, 21 October 1988), it will not defeat, on its own, a subdivision of merit.
In Wattleup Road Development Co Pty Ltd v State Administrative Tribunal [No 2] [2016] WASC 279 at [92], Chaney J stated that nothing:
… precludes consideration of planning precedent with respect to a development which is itself unobjectionable but there is a sufficient probability that there will be further applications for similar developments which, in their totality, would bring about an objectionable planning outcome provided the likelihood of those other applications is established on the evidence. The question might most commonly arise in the context of the exercise of discretion to relax a standard or depart from a planning policy as illustrated in cases like Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170.
The Tribunal concludes that density is an important element in the character of the locality as found in Bingwa and Western Australian Planning Commission [2007] WASAT 204 at [65] and that the City of Melville recently confirmed in LPS 6 that R20 is the appropriate density for the locality (which the Tribunal notes has remained unchanged since at least 1999 per CPS 5).
The Tribunal accepts Ms Brown's (expert called by the respondent) evidence that in the locality of the subject site there are 173 lots of which 129 lots (or approximately 74.5% of the lots) meet the minimum, but not the average, site area requirements under the RCodes. This evidence was not disputed by the applicant.
Further, the Tribunal accepts the respondent's concern that the cumulative effect of multiple applications similar to that of the applicant would be to change the density and streetscape of the locality of the subject site in an incremental manner in a context where the RCode of R20 has not been amended since 1999, but rather affirmed in LPS 6 (in May 2016). The applicant's application for subdivision confirms the respondent's concern. This is because the applicant stated in her written statement to the Tribunal, dated 23 November 2016, that she purchased the site in June 2016 with the full knowledge that the WAPC had granted subdivision approval for the neighbouring block (Lot 70).
The Tribunal is satisfied that there is more than the mere possibility that other landowners in the vicinity would be able to look to any approval as a precedent they might be able to follow. Therefore, the Tribunal concludes that precedent is a relevant consideration and, in the circumstances, the precedent that would be set would not be consistent with the orderly and proper planning of the locality of the subject site.
Conclusion
The Tribunal concludes that the application for review of the respondent's decision to refuse subdivision approval of Lot 69 Electra Street, Bateman into two lots should be dismissed.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the Western Australian Planning Commission dated 9 August 2016 to refuse the application to subdivide Lot 69 Electra Street, Bateman is affirmed.
I certify that this and the preceding [120] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS R PETRUCCI, MEMBER
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