Gentylbene Pty Ltd and Western Australian Planning Commission - [2006] WASAT 9

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: GENTYLBENE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 9

MEMBER: MR L GRAHAM (SESSIONAL MEMBER)

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 9 FEBRUARY 2006

FILE NO/S: DR 473 of 2005

BETWEEN: GENTYLBENE PTY LTD (ACN 009360892)
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Residential Design Codes of Western Australia 2002 - R10 - Government Sewerage Policy - Performance criteria - Variation - Undesirable precedent - Small infill - Planning merits - Average site area - Battleaxe subdivision - Circumstance justifying departure from policies

Legislation:

Metropolitan Region Scheme

Residential Design Codes of Western Australia 2002, cl 3.1.1, cl 3.1.3
Shire of Kalamunda Town Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 29(5)(b), s 82(1)

Town Planning and Development Act 1928 (WA), s 5AA, s 24, s 24(5), s 26(1)(a)(i), s 61(1)(a)

Result:

The application for review is allowed

Category: B

Representation:

Counsel:

Applicant: Mr K Adam (by leave)
Respondent: Mr J Algeri

Solicitors:

Applicant: N/A
Respondent: N/A

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

Aspen Pty Ltd v State Planning Commission, unreported; Appeal No 13 of 1988
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Milne, William and Western Australian Planning Commission [2003] WATPAT 1

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This application for review by Gentylbene Pty Ltd to the State Administrative Tribunal arises from a decision of the Western Australian Planning Commission (respondent) to refuse the subdivision of lot 62 Lyndhurst Road, Kalamunda into two lots. The rear lot is proposed in battleaxe form.
The review required an analysis of the relevant provisions of the Residential Design Codes of Western Australia 2002 (the Codes) and various planning policies and documents, together with submissions on undesirable precedent and the overall merits of the proposal. Matters of on‑site effluent disposal and the provisions of a Government sewerage policy were examined.
In the view of the Tribunal, the weight of argument fell in favour of the applicant. Critical to this assessment was the fact that the Tribunal is not relevantly fettered by cl 3.6.5 of the respondent's policy or residential subdivision policy which seeks to prevent the respondent from varying the minimum or average lot sizes set by the Codes in respect of battleaxe subdivisions.
The Tribunal was satisfied that the subject land had the capacity for on‑site effluent disposal, but that provision could be made for reticulated sewerage in the future by way of appropriate conditions.

Introduction

The application for review by Gentylbene Pty Ltd (applicant) on the 17 June 2005 arises from the decision of the Western Australian Planning Commission (respondent) on the 3 February 2005 to refuse the subdivision of lot 62 (No 35) Lyndhurst Road, Kalamunda (the subject land) into two lots of 951 square metres (front lot) and 1000 square metres (rear lot). The rear lot is of battleaxe form with a 4 metre access leg to Lyndhurst Road.
The refusal was based on the following reasons:
"1.The Commission is not prepared to approve the subdivision as proposed Lot 101 would be below the 1000 square metres average required under Table 1 of the Residential Design Codes (2002) and the Shire of Kalamunda Town Planning Scheme No 2.
2.The proposed subdivision is contrary to Clause 3.6.5 of Policy DC 2.2 'Residential Subdivision'.
3.Approval to the proposed subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the Residential R10 Zone of this locality."
A request for reconsideration of the decision was made on 3 March 2005 in accordance with the provisions of s 24(5) of the Town Planning and Development Act 1928 (WA) (the TPD Act). The respondent in a letter dated 24 May 2005 advised that:
" … it is concluded that the proposed subdivision has been determined in accordance with established Commission Policy and practice. Accordingly, the Commission reiterates its determination of 3 February 2005."
The review was determined in this Tribunal on the papers.

Subject land

The subject land is described on Certificate of Title Volume 55, Folio 174A as being portion of Canning Location 439 and being lot 62 on Diagram 33519. It has a lot area of 1951 square metres.
The site has a frontage of 23.64 metres and a depth of 82.28 metres. It is described by the Shire of Kalamunda in its letter to the respondent of 23 November 2005 as being flat, well vegetated and with access to a sealed road. There is an existing residence on‑site which is intended to remain on the proposed front lot 101.

Legislative Framework

The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "Residential" with an R10 coding in the Shire of Kalamunda Town Planning Scheme No 2 (TPS 2).
The matter is covered under s 24 of the TPD Act where the Western Australian Planning Commission can approve or refuse to approve a plan of subdivision. In this case a refusal was issued giving rise to the application for review as provided for in s 26(1)(a)(i) of the TPD Act.
Section 5AA of the TDP Act provides for statements of planning policy and this Tribunal is required "to have due regard" to such statements under s 61(1)(a) of the TPD Act.
Of importance is Statement of Planning Policy No 1 – State Planning Framework Policy – Variation No 1 (SPP 1) which unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision‑making on land use, subdivision and development in Western Australia.
Specific policies relied upon by the parties under SPP 1 include:
•Statement of Planning Policy (3.1); Residential Design Codes of Western Australia 2002 – (Codes).
•Policy DC 2.2; Residential Subdivision (DC 2.2).
•Policy DC 1.1; Subdivision of Land – General Principles (DC 1.1).
The Codes, which replaced the Residential Planning Codes of 1991 (1991 Codes), provide a comprehensive basis for the control, through local government, of residential development throughout Western Australia.
Policy DC 2.2 outlines the Commission's policy requirements for the subdivision of residential land. Clause 3.2.1 provides:
"Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land."
Policy DC 1.1 sets out the general principles to guide the respondent in determining applications for subdivision and includes amongst its policy objectives:
"To secure public utility services to each new lot appropriate for intended use of the lot."
The Government Sewerage Policy for the Perth Metropolitan Region of 1995 requires that all new subdivisions or density developments be provided with reticulated sewerage, except where the policy provides otherwise.

Respondent's position

The position of the respondent is outlined in the respondent's outline of submissions, dated 4 August 2005. It broadly argues:
(a)The application should be refused because it is inconsistent with the Codes policies, DC 1.1 and DC 2.2 and the Government Sewerage Policy, and would create an undesirable precedent.
(b)Pursuant to cl 3.1.1 and Table 1 of the Codes the average site area for dwellings must be a minimum of 1000 square metres.
(c)The performance criteria of cl 3.1.3 of the Codes allows for the creation of lots of a lesser area than the minimum specified in Table 1 provided that the lots are no more than 5% below the minimum, and the proposed variation accomplishes at least one of the five objectives set out in the performance criteria. The proposed subdivision, with an average site area of 975.5 square metres, is less than 5% below the minimum requirement but does not meet any of the five objectives specified in cl 3.1.3.
(d)The application does not meet any of the acceptable development criteria of cl 3.1.3 of the Codes.
(e)Clause 3.6.5 of DC 2.2 provides that the respondent will not permit reductions in the minimum or average lot sizes set by the Codes in respect of battleaxe subdivisions.
(f)Clause 3.2.5 of DC 2.2 should not be interpreted as allowing the creation of undersize lots in infill subdivision. That clause, properly understood, applies to large scale "Greenfield" subdivisions and is irrelevant to the present application.
(g)The proposed lots cannot be connected to reticulated sewerage and do not warrant exemption, (as small infill), from the mandatory sewerage requirement.
(h)An approval would create an undesirable precedent for subdivisions in the greater metropolitan region where battleaxe subdivisions over undersized parcels of land are proposed.
(i)The applicant has not demonstrated that the proposal has substantial merits which would justify approval.
(j)The "Liveable Neighbourhoods" policy is neither intended to override the provisions of a gazetted town planning scheme nor, in the absence of a detailed area plan (DAP), to override the Codes.

Applicant's position

The applicant's position is outlined in the application for review and broadly argues:
(a)The respondent has wrongly interpreted its planning policies by failing to take into consideration the lot sizes of surrounding properties in relation to the new two lots proposal. It has not used the relevant discretionary powers available to it.
(b)The proposed subdivision is not contrary to cl 3.2.5 of DC 2.2 if the appropriate subdivisional area is taken into consideration. In this case any subdivisional area within the R 10 coding of the Kalamunda area, which includes but is not limited to the proposed new lots applied for, satisfies the 1000 square metre average requirement.
(c)The respondent has refused to consider the merits of the proposed application.
(d)The respondent failed to exercise its discretion by allowing a 2.5% reduction to the average of the two newly created lots when the exercise of the discretion was reasonable and desirable.
(e)Any precedent created, particularly if the 1000 square metre average is maintained when adjoining lots are included in the calculations, is not undesirable and would be consistent with achieving higher densities of development with more sustainable outcomes as expressed in the "Liveable Neighbourhoods" policy.
(f)The Health Department originally confirmed that the proposed subdivision met the "small infill" criteria for exemption under the Government Sewerage Policy. It was not reasonable for them to subsequently change their mind in response to the applicant's request for reconsideration.
(g)It is understood that a sewer line will be available in reasonable proximity to the subject land within six to 12 months. Approval for on-site disposal would not then be required.

Planning issues

The planning issues in this review relate principally to the Codes and policy DC 2.2 and the planning merits of the proposal. The views of the various authorities, particularly the local authority, the Water Corporation and the Department of Health are most relevant.

Codes and DC 2.2

Table 1 (Column 3) of the Codes provides for a minimum site area per dwelling of 875 square metres minimum and a minimum average of 1000 square metres. There is no explanation in the Codes as to how the average site area is to be calculated.
In the witness statement of Mr KA Adam, a qualified architect and town planner, dated 9 September 2005 he argues:
(a)The common practice has been to calculate the average site area solely by reference to the lot or lots included in the application.
(b)A more appropriate approach, given that the proposed lots exceed the minimum, would be to calculate average site area by reference to the average lot size in the surrounding locality.
(c)In support of this approach Clause 3.2.5 of DC 2.2 assesses new or "Greenfield" subdivisions on the overall lot size, allowing individual stages to fall below the average.
(d)From a planning perspective the underlying principle is equally applicable to re‑subdivision of established areas.
In the supplementary witness statement of Mr J Algeri, a qualified town planner, dated 28 October 2005 he argues for the respondent:
"…I am not aware of any instance in which either the [respondent] or any appeal tribunal has ever accepted a principle that average lot size can be calculated by reference to anything other than the lot or lots included in the subdivision application."
The Tribunal is assisted in this matter by cl 3.2.5 of DC 2.2:
"For the purpose of calculating average site area referred to in Table 1 of the Codes, the Commission accepts that, with many large‑scale 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 Commission 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."
In the view of this Tribunal, although it would be theoretically possible to devise a planning policy or practice that calculates average site area beyond the boundaries of the subject land, no such policy or practice exists.
What is clear, however, from cl 3.2.5 of DC 2.2 is that where a particular stage of a project does not comply with the average site area requirement the respondent can still be assured that subsequent stages will restore compliance relatively quickly.
All of this implies that the subdivider of the subject land has a measure of control as to what happens to the timing of subdivision outside the subject land, so that the respondent can be satisfied that the average site area will be achieved within a reasonable period of time and within the confines of the project area. Such a situation does not exist in the circumstances relevant to this review.
As such the Tribunal accepts the argument of the respondent in this matter that the calculation of average site area is confined to the lot or lots included in the subdivision application or as is encompassed within the meaning of cl 3.2.5 of DC 2.2.
A further matter of importance to this review are the provisions of cl 3.1.3 of the Codes and cl 3.2.5 of DC 2.2.
What cl 3.1.3 of the Codes allows is a variation of no more than 5% to the minimum site area requirements of column 3 of Table 1. For this to occur, one of five specified criteria must be met.
For the proposal to comply with the variation provision of 5%, the minimum site area for an R10 coding could be as low as 831.25 square metres and the minimum average site area could be as low as 950 square metres. As the proposed subdivision contemplates the smaller of the two lots at 951 square metres, with an average site area of 975.5 square metres, the proposal falls within the allowable 5% variation.
This method of calculating a minimum site area and a minimum average site area is explained in Milne, William and Western Australian Planning Commission [2003] WATPAT 1 (at [14]):
"In closing, counsel for the Appellant, Mr Hardy suggested that the expression minimum site area was in effect a global expression incorporating both minimum area and average area as those expressions are used in table 1. There is no definition of minimum site area in the Residential Design Codes. There is a lot to be said for the submission. For our purpose we accept that that is a way in which that expression may be understood and provides a basis to deal with the relationship between clause 3.1.3 and table 1."
What remains outstanding is whether the proposal also accords with one of the five criteria specified in cl 3.1.3 of the Codes.
Mr Adam argues that the criterion (fifth dot point) which refers to "allow[ing] land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed" is met by the proposal, as a single house of the same type and form could be developed, albeit on a battleaxe lot, as land in the vicinity.
In the witness statement of Mr J Algeri, dated 26 July 2005, he argues:
"The applicant has not expressly demonstrated that the subdivision application satisfies any of the five additional criteria contained in 3.1.3 of the R Codes."
In this matter the Tribunal has not been assisted greatly by the parties on the question of the type and form of nearby housing other than that included as Annexure 8 to the application for review. This annexure is a letter from the Shire of Kalamunda to the respondent dated 23 November 2004 wherein it advises that adjacent and nearby land uses are:
"Residential, predominantly R 10."
With this information from the local authority the Tribunal does accept that the applicant meets the requirement of cl 3.1.3 of the Codes (fifth dot point).
Of additional relevance is cl 3.2.3 of DC 2.2, wherein the Commission will consider variations below the minimum and average lot sizes prescribed in Table 1 where:
(a)all lots in the subdivision meet the minimum lot size requirements.
(b)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 R Codes; and
(c)the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the Commission forms the opinion that it will have a particular beneficial outcome for the community.
As the proposal conforms to both (a) and (b), and (c) includes within it the term "beneficial outcome for the community", for land to be developed with the same form and type as land in the vicinity which would not otherwise be developed, the Tribunal is satisfied that the proposal meets the requirements of cl 3.2.3 of DC 2.2.
Of particular importance in this review is cl 3.6.5 of DC 2.2. It states:
"In areas which are subject to the Codes, the minimum lot size will be as set out in Clause 3.1.2 and Column 4 of Table 1 of the Codes. The Commission will not permit reductions in the minimum or average lot sizes set by the Residential Design Codes in respect of battleaxe subdivisions."
In his witness statement, Mr Algeri states:
"The subdivision application proposes a battleaxe configuration and a reduction to the average lot area required by the R Codes and is therefore inconsistent with clause 3.6.5 of DC 2.2. As a consequence this provision effectively disqualifies any ability to vary lot size requirements as set out in clause 3.1.3 of the R Codes or 3.2.3 of DC 2.2."
The position of the respondent appears to be that cl 3.6.5 of DC 2.2 is the most dominant provision contained in its residential policies relevant to battleaxe subdivisions.
On the other hand Mr Adam expresses his view in this way:
"It is my opinion that Clause 3.6.5 is totally void of any planning justification or merit and simply exposes an unreasonable prejudice against battleaxe lots. There is no planning principle of which I am aware, nor can I conceive one, that would exclude subdivisions involving battleaxe lots from a variation provision that applies to the average lot size, especially where the minimum lot size is satisfied. In my opinion, in the absence of any underlying planning principle or criteria, the provision should be discounted, or at the very least, given little regard."

The difficulty the Tribunal has with cl 3.6.5 of DC 2.2 is its construction. The first sentence clearly refers to Column 4 of Table 1 which requires a 925 square metre minimum lot area for a rear battleaxe lot. In this respect the proposed 1000 square metre rear battleaxe lot conforms.
The problem is the second paragraph which explains that the Commission will not permit reductions in the minimum or average lot sizes for battleaxe subdivisions. Is this a continuing reference to Column 4 or has the language changed so as to introduce the provisions of Column 3 without actually saying so? Again, if the intent is to introduce the provisions of Column 3, why does the wording refer to "lot size" instead of "site area" as contained in Column 3?
Whatever the failings of the wording of cl 3.6.5 of DC 2.2 are, it is clear that the respondent believes that there is no discretion in this matter. This is explained in a Statutory Planning Committee (SPC) meeting of the respondent on 25 January 2005:
"The reporting officer considered the shortfall in area to be negligible and recommended approval. SPC did not support the recommendations on the grounds that Clause 3.6.5 of Policy DC 2.2 clearly states that the WAPC will not permit reductions in the minimum or average lot sizes in respect of battleaxe subdivisions and that despite the particular planning merits of a proposal, it was not in the interests of proper and orderly planning to 'make policy on the run' by supporting the conditional approval recommendation."
The question of the relationship between policy and discretion and the particular merits of a proposal are addressed in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at 440:
"In some cases the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, 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. Good public administration demands no less an approach."
In the view of this Tribunal the provisions of cl 3.6.5 of Policy DC 2.2 do not prevent the respondent (and this Tribunal) from exercising its discretion within the context of the planning merits of a proposal.

Planning merits of the proposal

The merits of the proposal are outlined in a letter dated 4 November 2004 by Ms Erica Walker, the Director/Secretary for the applicant, to the Shire of Kalamunda:
(a)The minimum site area required for two lots is 2000 square metres. At 1951 square metres the subject land is 2.5% less than the minimum which is comfortably within the 5% range, which is within the respondent's discretion to allow.
(b)The minimum requirement at R 10 coding is 875 square metres. The smaller of the proposed lot at 951 square metres exceeds the minimum by 76 square metres or 8.7%. The battleaxe lot at 1000 square metres is 2.5% larger than the minimum allowed for a battleaxe lot.
(c)The proposed lots would be able to be connected in due course to the sewer line being extended to the nearby lots at the corner of Canning Road and Lyndhurst Road.
(d)The new commercial development on Canning Road will provide significant new retail and other services and benefits to new residents resulting from the subdivision. A bus route is close by.
(e)The State Government has recently announced a revised draft of its "Liveable Neighbourhoods" policy which encourages subdivisions of existing urban areas to maximise the use of public infrastructure and other amenities which already exist.
(f)In relation to the Codes, the "Liveable Neighbourhoods" policy states:
"where inconsistencies arise between Liveable Neighbourhoods and the mandatory provisions of the R Codes, detailed area plans may be used in the specific case to override the R Codes".
The respondent does not address the planning merits question such as outlined in (d) immediately above, but does respond to the "Liveable Neighbourhoods" document in Mr Algeri's witness statement as follows:
"Whilst the document is still only in draft form it is acknowledged that it is a seriously entertained proposal. Nevertheless, it is not intended to be a policy that circumvents or overrides existing, gazetted town planning schemes but, rather, an instrument that gives direction to future schemes by promoting more contemporary urban town planning principles.
Further, the [Liveable Neighbourhoods Policy] expressly recognises the primary importance that should be given to the R Codes at page 65 under the heading 'General Principles and Background to Objectives and Requirements – Lot layouts for housing diversity and density':
'Where any provision of Liveable Neighbourhoods conflicts with any mandatory specification of the R Codes, the R Codes will prevail unless varied by an approved detailed area plan (DAP)'.
No DAP exists in respect of the area in which the Subject Land is situated …"
In relation to these matters, the information on the proposed lot size relative to the provisions of the Codes has already been addressed but there is little reliable information available on the precise timing of sewerage infrastructure into the locality.
The information on new commercial development in the area is not of itself a compelling argument for subdivision, and the Tribunal accepts that in the absence of an approved detailed area plan the provisions of the Codes carry more weight than the "draft" broadly based objectives of the Liveable Neighbourhoods document.

Undesirable precedent

In the original application for review dated 17 June 2005 the applicant argues that the precedent created by allowing lots of the size proposed; particularly if the 1000 square metre average is maintained by including adjoining lots in the calculation of the average, is not undesirable. This is because it would be consistent in achieving higher densities of development in order to achieve more sustainable urban outcomes as expressed in the Liveable Neighbourhood's policy.
The respondent's outline of submissions argues that approval of the application would create an undesirable precedent in the greater metropolitan region where battleaxe subdivisions over undersized parcels of land are proposed.
It is also argued by the respondent that as there were several grounds of refusal of the subdivision that the principles in Aspen Pty Ltd v State Planning Commission, unreported; Appeal No 13 of 1988 regarding undesirable precedent as a "stand alone" argument do not apply in this case.
In that decision it stated:
" … The precedent argument is not usually treated by this [T]ribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of developments, should not be a reason why the appeal should be dismissed ..."
The principal difference between the parties is the applicant confines the argument to the immediate locality, where there is limited opportunity for battleaxe subdivision. The respondent conversely argues that an approval in this case could have wider repercussions elsewhere in the outer metropolitan region.
The view of this Tribunal is that each review is conducted on the specific merits of the case, and what might occur elsewhere as a result of an approval should not be an overriding consideration in the final determination.

The position of other agencies

The views of the Shire of Kalamunda, the Water Corporation, the Environmental Protection Authority and the Health Department are relevant.
On 23 November 2004, the Shire advised the respondent that it supported the subdivision subject to four conditions. One of these conditions was that the lots be connected to a reticulated sewer.
On 30 December 2004, in an officer‑to‑officer memorandum from the Shire to the respondent, it was advised that they no longer supported the proposed subdivision as it did not meet certain provisions of the Codes. The Shire officer was acting under delegated authority.
On 15 September 2004, the Water Corporation advised:
(a)The subdivision is located within the Kalamunda Sewerage District and is remote from the existing sewer.
(b)The proposal should be refused on the grounds that sewerage is not available unless the Health Department, the Environmental Protection Authority and the Shire all agree that on‑site effluent disposal is a satisfactory long term proposition.
(c)If the subdivision were to proceed, it would be necessary for the subdivider to make the special contribution required of all properties in the Kalamunda Sewerage District and to provide or ensure the provision of any sewers additional to those included in the notional district scheme.
(d)That in accordance with the agreement with the Shire, only single or duplex developments would be permitted on any of the lots so created.
In the witness statement of Mr Algeri, he advises that the Department of Environment (Waters and Rivers Commission) raised no objection to the proposal.
On 22 December 2004, the Department of Health advised the respondent that:
"The proposed lot sizes do not meet any criteria to warrant consideration for exemption from the mandatory sewer conditions of the Government Sewerage Policy – Perth Metropolitan Region.
Accordingly, this Department is not prepared to support the proposal unless reticulated sewerage is available."
On 11 January 2005, the Department of Health reversed its decision and advised that the proposal did meet the infill criteria to warrant consideration for exemption from the mandatory sewer condition of the Sewerage Policy. They also advised:
"It is noted that one of the lots is marginally less than the 1000 [square metres], however site conditions are suitable for on‑site wastewater disposal and accordingly, this Department has no objection to the proposal."
On 24 March 2005, the Department of Health again changed its mind and advised that its first decision was correct and the proposal did not meet the "small infill" condition of the policy as:
"… the proposed lot sizes are smaller than the lot sizes prevailing in the immediate vicinity and are therefore, not consistent with the existing pattern of subdivision in the area (cl 5.2.1). Neither does the proposal meet the other criteria of the Policy to warrant consideration for unsewered subdivision."
There are two issues for consideration here by this Tribunal: namely, the question of on‑site effluent disposal and the Government's Sewerage Policy.
It is clear from the Department of Health advice of 11 January 2005, that the subject land is suitable for on‑site effluent disposal, at least in the short term. This is confirmed from information included in the Shire's "Site Assessment to Determine Effluent Disposal Potential" where the soil description is described as:
"Sandy top soil over rock and gravel."
In response to the question "how many lots are suitable in their natural state for on‑site disposal of effluent" the answer given was "two".
On the matter of the Government's Sewerage Policy, the views of the Department of Health are finally clear in their advice of 24 March 2005 that the proposal does not conform to the policy.
This view is challenged in the original application for review on the basis that two nearby lots, 1001 and 1002, are 901 square metres and 1130 square metres respectively.
Although the information is correct it is not known whether it would have influenced the Health Department's advice. In any event the average lot size exceeds 1000 square metres in the case of lots 1001 and 1002.
In the original application for review, the point is made that reticulated sewerage will be constructed within six to 12 months to the corner of Canning Road and Lyndhurst Road and the sewer line will be available within reasonable proximity to the subject land.
The difficulty that Tribunal has with this advice is that there is no information available from the Water Corporation on the matter other than its statement of 15 September 2004 that the subject land "is remote from the existing sewer".

Assessment of proposal

The application for review by the applicant has been lodged against the decision of the respondent to not allow the subdivision of a 1951 square metre lot into two lots of 951 square metres and 1000 square metres. The larger of the two lots (the rear lot) is proposed in battleaxe form.
The reasons for refusal were based on the smaller of the two lots (front lot) being below the 1000 square metre average required by the Codes; that the proposal is contrary to the provisions of cl 3.6.5 of Policy DC 2.2 and that an approval would create an undesirable precedent for other lots of similar size in the locality.
In order to overcome the difficulty posed by the requirement of Table 1 of the Codes that the average minimum site area should be 1000 square metres, the applicant sought to extend the area beyond the boundaries of the subject land and to calculate the average site area by reference to the average lot size in the surrounding locality. The provisions of cl 3.2.5 of DC 2.2 were used to support the argument.
Based on the circumstances of this case, and as explained above, the view of the Tribunal is that the calculation of average site area must be confined to the subdivision of the subject land only.
Having determined that matter, an analysis of the provisions of Table 1 of the Codes for R10 coding is required. In that regard the minimum site area specified in column 3 is 875 square metres and the minimum average site area is 1000 square metres. The minimum lot area for a rear battleaxe as specified in Column 4 of Table 1 is 925 square metres.
The proposed subdivision of two lots of 951 square metres and 1000 square metres easily meets the minimum site area of 875 square metres and the battleaxe requirement of 925 square metres. Where the proposal fails is that its average site area is 975.5 square metres instead of 1000 square metres. In effect, it is 2.5% short of the necessary requirement.
Of relevance here is that the Codes do provide for flexibility by way of a variation under cl 3.1.3 to allow for smaller lots. The variation of up to 5% applies to both the minimum site area and the average site area.
The effect of the variation provision would be to reduce the minimum average site area to 950 square metres. The proposed subdivision would then comply.
However, there is also a provision in cl 3.1.3 that one of five other requirements in addition to the 5% variation must be met. The applicant has chosen to argue that the proposal would meet the following requirement (fifth dot point):
"allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed."
On this particular matter the respondent adds little to the argument but from information before the Tribunal it is hard to imagine how such a broad based requirement could not be met in a locality where individual residences have been built and conform to the R10 coding.
The Tribunal accepts that the proposal conforms to the provisions of cl 3.1.3 of the Codes and, as outlined above, accepts that the broadly similar provisions of cl 3.2.3 of DC 2.2 have also been met.
In submissions by the respondent it is argued that the provisions of cl 3.6.5 of DC 2.2, which state that the Commission will not permit reductions in the minimum or average lot sizes in respect of battleaxe subdivisions, effectively disqualifies any ability to vary the lot size requirements under cl 3.1.3 of the Codes or cl 3.2.3 of DC 2.2.
As outlined above, the Tribunal has some difficulty with the construction of cl 3.6.5 of DC 2.2 but would accept that it is intended to apply to the provisions of both columns 3 and 4 of Table 1 of the Codes and is meant to exclude battleaxe subdivisions from the variation provisions of the Codes.
Although the respondent may feel constrained by cl 3.6.5 of DC 2.2 this Tribunal is not of a similar mind and can see no valid reason why it should not exercise its discretion based on the merits of the particular proposal before it. As explained in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission above:
"[The] existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it."
Conversely, the same judgment also explains:
"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."
In that sense the Tribunal is unaware of the rationale behind cl 3.6.5 of DC 2.2 but has before it a proposal where the minimum site area of 875 square metres is exceeded by both of the proposed lots, and the rear battleaxe lot exceeds the 925 square metre requirement. Additionally, as outlined in above, if the variation provisions of cl 3.1.3, are applied then the proposal conforms to the resulting average site area of 950 square metres.
In the submissions of the applicant, reference is made to the proximity of the subject land to a new commercial development and the relevance of the proposal to the objectives of the respondent's "draft" Liveable Neighbourhoods document. These arguments form part of a planning merits argument but do not of themselves carry sufficient weight to determine the matter.
The issue of undesirable precedent is addressed in the main by the respondent who argues that a favourable decision could have wider repercussions elsewhere in the outer metropolitan region and that, theoretically, any lot of 1800 square metres with a R10 coding, could be eligible for battleaxe subdivision (875 square metres minimum and 925 square metres for a battleaxe lot). This assumes that the matter of minimum average site area is put aside.
In its consideration of this matter, the question of minimum average site area is not being put to one side by this Tribunal. What is being considered is whether the variation provisions of cl 3.1.3 of the Codes are applicable in which case a minimum average site area of 950 square metres (1900 square metres for two lots) would be supported.
Again, there is no information before the Tribunal that an approval in this case could give rise to a spate of similar applications for battleaxe subdivisions in the locality. Even if this were the case, each application would have to be treated on its merits.
The question of on‑site effluent disposal and the provisions of the Government's Sewerage Policy are important considerations in the determination of this matter.
Of prime importance are the health considerations resulting from on‑site effluent disposal and the Tribunal is satisfied from documentation of both the Shire of Kalamunda and the Department of Health that the subject land is suitable for on‑site effluent disposal. In all probability, the systems in place for the existing residence on‑site have been operating effectively for some time.

On the question of adherence to the Government's Sewerage Policy, the Tribunal has not been helped by the ambivalence of the Department of Health in this matter. Their latest advice states that the proposal does not meet the "small infill" criterion of the policy, as is explained above.
The difficulty that the Tribunal has with this advice is that the former lot 340 Lyndhurst Road – three lots to the east of the subject land – was granted conditional approval to subdivide by the respondent on 9 October 2000 (WAPC Reference: 114514) to create two lots of 1000 square metres and 1031 square metres. The Department of Health raised no objection and advised that the proposal did meet the "small infill" criterion.
Again, from the information before this Tribunal it would appear that there are a range of lot sizes in the Lyndhurst Road locality which, according to Mr Adam, the great majority of which fall between 800 square metres and 1500 square metres. The proposed subdivision would fall within these limits.
Of importance also is that only lot 64 Lyndhurst Road appears to have the potential for subdivision and the provisions of cl 5.2.1 of the Government Sewerage Policy may well be met in the circumstances of this case.
The policy states under cl 5.2.1 that:
"proposals for small infill subdivision or development do not have the potential for the creation of more than four additional lots, dwellings or single residential equivalents respectively, in the immediate vicinity (generally interpreted as within the street block) so that the proposal completes rather than extends the existing pattern of subdivision or development. Lot sizes and land use shall be consistent with the existing pattern of subdivision or development."
Although the applicant argues that reticulated sewerage could be available at the corner of Canning Road and Lyndhurst Road within six to twelve months there is no supporting evidence from the Water Corporation to that effect. However, in its advice to the respondent of 15 September 2004, the Corporation advised that if the proposal were to proceed, a condition should be imposed as follows:
"Certification from the Water Corporation that arrangements have been made with that body so that connection to future sewerage service will be available to the lots proposed by this application. The service is to be consistent with the Water Corporation's policy and planning for the locality and may involve the resolution of land matters and the payment of financial contributions to the satisfaction of the Water Corporation."
The Tribunal supports a condition along these lines, the intent of which has been included in a "without prejudice" schedule of conditions relayed from the respondent to the applicant on 20 October 2005.
In the view of the Tribunal the weight of argument falls in favour of the applicant. Critical to this assessment is the fact that this is not fettered generally speaking by the provisions of cl 3.6.5 of DC 2.2 which allows the proposal to be considered within the variation provisions of cl 3.1.3 of the Codes and cl 3.2.3 of DC 2.2.
The Tribunal has considered the application on the particular merits of the case and sees little substance in the respondent's argument that an approval will set an undesirable precedent in this locality. The opportunity for a spate of similar applications appears remote.
The Tribunal has paid particular regard to the provisions of the Government Sewerage Policy – Perth Metropolitan Region but has not been helped by the ambivalent views of the Department of Health in this matter.
The Tribunal is satisfied that the subject land has the capacity for on‑site effluent disposal, and that provision can be made for reticulated sewerage in the future by way of appropriate conditions.

Orders

For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is allowed and the decision under review is set aside.
2.The subdivision application lodged with the respondent on 29 July 2004 is approved subject to any such reasonable conditions to be imposed either as a result of the parties' agreement, or by determination of the Tribunal.
3.Pursuant to s 29(5)(b) and s 82(1) of the State Administrative Tribunal Act 2004 (WA), order 1 and order 2 do not come into effect until such time as the conditions referred to in order 2 are finalised, at which time the Tribunal will provide a consolidated order setting out all of the conditions of approval.
4.The applicant is to file with the Tribunal and serve on the respondent a statement agreeing to or identifying any of the draft conditions forwarded to it by the respondent on 20 October 2005 to which it objects, stating briefly the reason for each objection, within 14 days of these orders.
I certify that this and the preceding [110] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SESSIONAL MEMBER