GRUBOR and WESTERN AUSTRALIAN PLANNING COMMISSION

Case •

[2011] WASAT 54

•

5 APRIL 2011

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   GRUBOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 54

MEMBER:   MR J JORDAN (MEMBER)

HEARD:   17 JANUARY 2011

DELIVERED          :   5 APRIL 2011

FILE NO/S:   DR 270 of 2010

BETWEEN:   DUSANKA GRUBOR

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning ­ Survey strata subdivision ­ Two lots and common property lot for access ­ Lot with R20 density coding under town planning scheme ­ R20 density coding changed to R30/40 density coding between 1 June 2010 and 27 August 2010 ­ Application to subdivide 9 June 2010 - Subdivision refused 1 September 2010 ­ Application for review filed with State Administrative Tribunal 9 September 2010 ­ Streetscape ­ Precedent ­ Orderly and proper planning

Legislation:

City of Perth City Planning Scheme No 1
Draft Town of Vincent Town Planning Scheme No 2
Planning and Development Act 2005 (WA), s 241(1)(a), s 251(1)
Residential Design Codes of Western Australia (2010), cl 6.1.1, cl 6.1.3, cl 6.2, Table 1
State Administrative Tribunal Act 2004 (WA), s 27(2)
Town of Vincent Town Planning Scheme No 1, cl 19(2), cl 20(4)(c)(ii)

Result:

The application for review is dismissed
The refusal of the application for the survey strata subdivision of No 66 (Lot 55) Sydney Street, North Perth, is affirmed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr J Bouwhuis

Solicitors:

Applicant:     Self-represented

Respondent:     Western Australian Planning Commission

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

Goldin v Minister for Transport (2002) 121 LGERA 101

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. This matter involved an application for review of the refusal by the Western Australian Planning Commission of a proposed survey strata subdivision of a lot in Sydney Street, North Perth, to create a 293 square metre lot with street frontage, a rear lot of 270 square metres and a 4 metre wide common property lot to provide access to the rear.  An existing house on the lot would have been demolished. 

  2. The Tribunal's starting position was that it would not normally support a subdivision that would create lots that varied as significantly as proposed from the R20 density coding.  The applicant argued that circumstances relating to existing streetscape, established precedents and orderly and proper planning of the locality supported the proposed subdivision. 

  3. The Tribunal found that, while there remain in Sydney Street some houses that retain a 1930s' character, the replacement of the existing house on the site with a new house would not be an intrusion into a streetscape of homogenous house styles.  The Tribunal further found, however, that because of the existing lot size pattern and dwelling density, the proposed subdivision would introduce into the street block north of Hobart Street an increased density of development that would be an unacceptable intrusion into the established streetscape. 

  4. The Tribunal also formed the view that the approval for the subdivision of Lot 63 Sydney Street into lots consistent with R30/40 when the density coding was R20 did not provide a basis for setting aside the density coding over the full length of Sydney Street.  Lot 63 Sydney Street was south of Hobart Street with a streetscape influenced by grouped dwelling development.  The density coding was a consideration, but so were the existing streetscape and the subdivision and development pattern north of Hobart Street, and these factors militated against the proposed subdivision of the lot.

  5. The Tribunal concluded that an approval of the proposed subdivision would create an undesirable precedent for the subdivision of other lots coded R20 north of Hobart Street.  There were no discernable distinguishing characteristics of the site that differentiated it from other lots north of Hobart Street, and the subdivision would be objectionable because it would introduce into the street block a lot size pattern and potential form of development different from that now existing, inconsistent with the subdivision and development controls in place.

  6. The Tribunal finally concluded that it would be inconsistent with orderly and proper planning to allow the proposed subdivision.  While the application to subdivide had been made when the density coding had reverted from R20 back to R30/40, the subdivision was refused and the matter came before the Tribunal for review when the town planning scheme had been amended to include the lot within an R20 density coding.  To grant approval for the proposed subdivision would be inconsistent with density provisions of the town planning scheme in a location where an increase in lot density would be inconsistent with the streetscape and set an undesirable precedent.

  7. The Tribunal decided to dismiss the application for review and affirm the refusal of the Western Australian Planning Commission.

Introduction

  1. These proceedings involve an application brought by Mrs Dusanka Grubor (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (respondent or Commission) to refuse to grant approval for the subdivision of No 66 (Lot 55) Sydney Street, North Perth (site) into three survey strata lots.

  2. The Tribunal conducted a view of the site and Sydney Street, accompanied by the applicant and the respondent's representative.

Site and locality

  1. The site is a parallelogram with an area of 680 square metres.  The site has frontage of 14.16 metres to Sydney Street at the western end and a depth of 50.69 metres.  A single-storey brick and tile house is set back about 9 metres from the front boundary and 2.42 metres from the southern side boundary.  The floor level of the house is about 2 metres higher than the road frontage of the site.  A shed of approximately 24 square metres, with a veranda, is located in the south­east corner of the site.  The driveway and crossover serving the existing dwelling abut the southern lot boundary. 

  2. Sydney Street runs north from Scarborough Beach Road to Gill Street.  It is divided into three street blocks ­ Scarborough Beach Road to Haynes Street, Haynes Street to Hobart Street, and Hobart Street to Gill Street at the northern end.  The site is in the street block north of Hobart Street.  North of Hobart Street, lots contain a single dwelling, except at the corner of Hobart Street where there are grouped dwellings.  Number 82 Sydney Street, six houses to the north of the site, has been subdivided into a battleaxe configuration but as yet the rear lot is undeveloped.  On the western side of the street, two lots are vacant. 

  3. South of Hobart Street, about seven lots have been developed with grouped dwellings.  Other than at corner lots, the grouped dwellings have been built one behind the other with internal driveway access.

Planning framework

  1. Prior to 1998, the site was within the City of Perth and, under the City of Perth City Planning Scheme No 1, was zoned Residential with a density coding of R30/40.  From December 1998, the site was within Town of Vincent Town Planning Scheme No 1 (TPS 1).  TPS 1 continued with the residential zoning and density coding of R30/40.  The Town of Vincent (Council) also included the site within Precinct 8, which extends between Charles Street to the east and Edinboro Street to the west and includes about 500 lots.  Following lobbying by the North Perth Precinct Group, a residents' group that included Precinct 8, the Council initiated Amendment No 11 to TPS 1 to change residential density in Precinct 8 to R20.  Amendment No 11 was gazetted in October 2003, but only after the Minister for Planning required, and the Council accepted, that there be inserted in TPS 1 a 'sunset clause', cl 20(4)(c)(ii).  This provided that the affected areas in Precinct 8 of TPS 1 would revert back to a density coding of R30 and R30/40 on 1 July 2006. This 'sunset clause' was inserted pending the outcome of the Council's review of its TPS 1.

  2. Since the gazettal of Amendment No 11, four subsequent amendments have occurred to extend the 'sunset clause', which now operates until 1 May 2012.  These amendments of TPS 1 are as follows:

Amendment No

Gazettal Date

Extension of Sunset Clause To

Amendment 11

7 October 2003

1 July 2006

Amendment 22

14 July 2006

30 December 2007

Amendment 24

9 May 2008

1 September 2008

Amendment 27

3 March 2009

1 June 2010

Amendment 28

27 August 2010

1 May 2012

  1. Relevant to the proposed subdivision, on 2 June 2010, the site reverted to an R30/40 density coding due to the operation of cl 20(4)(c)(ii) of TPS 1, inserted by Amendment No 27.  Prior to this, on 20 October 2009, the Council had initiated Amendment No 28 and advertised this amendment from January 2010 to March 2010. 

  2. On 10 June 2010, the Minister for Planning informed the Council that final approval would be granted to Amendment No 28 if the amendment was amended to include a further 'sunset clause' for the R20 coding for Precinct 8.  On 5 July 2010, the Council agreed to amend proposed Amendment No 28 and on 10 August 2010, the Minister for Planning granted final approval to the amendment.  As shown in the table above, Amendment No 28 was gazetted on 27 August 2010 and, by virtue of amendments to cl 20(4)(c)(ii) of TPS 1, the R20 coding now extends to 1 May 2012, which was identified as a date when the review of TPS 1 might be complete.

  3. Clause 20(4)(c)(ii) of TPS 1 now reads:

    (ii)After 1 May 2012 development and subdivision of land coded R20 will be determined in accordance with the R30/40 code and shall be subject to all provisions relevant to that coding in the North Perth Precinct.

  4. Under the Residential Design Codes of Western Australia (2010) (Codes), Table 1, 'General Site Requirements', specifies for an area coded R20, a minimum and an average lot size for grouped dwellings of 440 square metres and 500 square metres respectively.  

  5. The Commission has adopted Development Control Policy 2.2 'Residential Subdivision' (DC 2.2).  DC 2.2 lists as policy objectives:

    •To establish a consistent and co-ordinated 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 town planning schemes, the availability of reticulated sewerage and the need for frontage to public roads.

  6. Clause 3.2.1 of DC 2.2 provides that 'the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land'.

  7. The Council's review of TPS 1 is continuing and it has prepared as a preliminary draft, Town of Vincent Town Planning Scheme No 2 (draft TPS 2).  The Council is also preparing a draft local planning strategy.  The respondent said these documents currently propose that the site and neighbouring lots would remain R20, but commented that at the time of the hearing, neither of these documents could be considered as seriously entertained planning documents. 

  8. As a basis for its review of TPS 1, the Council adopted, in June 2005, 'Vincent Vision 2024', completed after extensive community consultation.  This is described in the introduction as producing a community vision for the Town as a whole and community visions for place-based areas, including North Perth.

Proposed subdivision

  1. The subdivision proposal before the Tribunal would result in the creation of three survey strata lots.  These would be a 293 square metre residential lot fronting Sydney Street, a 4 metre wide and 28.3 metre long lot of 117 square metres adjacent to the southern boundary which would be common property and provide access to the rear, and, at the rear of the site, a residential lot of 270 square metres.  The existing house and shed on the site would be demolished to allow for the proposed subdivision.  This proposed subdivision is set out on a plan designated 'Option 1'.  The Option 1 plan has the original date of '19/9/08' and has been stamped 'Department of Planning 9 June 2010'.

  2. To note is that the Commission made its decision to refuse the subdivision on 1 September 2010, having regard to a plan entitled 'Proposed Survey Strata', also dated '19/9/08' and date stamped '9 June 2010' by the Department of Planning.  This shows the house being retained on a proposed lot of 340 square metres.  The common property access leg lot would be 2.42 metres wide and would have an area of 70 square metres.  The rear lot would have an area of 270 square metres.

  3. The plans dated '19/8/09' relate to an application by the applicant in September 2008 for subdivision of the site into three survey strata lots with a 4 metre wide access lot.  This subdivision was based on the plan 'Option 1', dated '19/9/08'.  Two other plans were filed with the application, both dated '10/9/08'.  One was a plan 'Proposed Survey Strata' and the other was a plan 'Contour and Feature Survey'.  The applicant said she had no knowledge the surveyor had attached these two additional plans to the 2008 application. 

  4. The Commission refused this previous application in March 2009 because the lots were below the requirements for the R20 coding and because of concern that an undesirable precedent would be set for the subdivision of neighbouring lots.

  5. As a consequence of a directions hearing before the Tribunal on 29 September 2010, the application was referred to the respondent for reconsideration of its decision, having regard to the lot configuration shown on the plan 'Option 1'.  The Commission replied that, having reconsidered the matter on 26 October 2010, while the 4 metre wide access leg would be acceptable, it had resolved to again refuse subdivision for two of the reasons set out in the September 2010 decision.  The reasons were:

    1The proposed subdivision does not comply with the site area requirement of the R20 Residential Design Codes that applies to the subject land under the Town of Vincent Town Planning Scheme No 1.

    …

    3Approval of the subdivision would set an undesirable precedent for the further subdivision of other lots in the locality, which would undermine the objectives and provisions of the Town of Vincent Town Planning Scheme No 1.

Issues

  1. The parties raised issues in the matter that can be identified as follows:

    1)Whether the proposed subdivision would be appropriate, having regard to the density coding of the site under TPS 1.

    2)Whether the proposed subdivision would be appropriate, having regard to the impact on the streetscape.

    3)Whether the approval granted for the subdivision of Lot 63 Sydney Street creates a precedent of the proposed subdivision.

    4)Whether the proposed subdivision would create an undesirable precedent for the subdivision of other lots coded R20.

    5)Whether the proposed subdivision would be inconsistent with orderly and proper planning.

Issue 1 ­ Whether the proposed subdivision would be appropriate having regard to the density coding of the site under TPS 1

  1. Since 27 August 2010, the site and neighbouring lots in Sydney Street have had a density coding of R20 under TPS 1.  Pursuant to cl 20(4)(c)(ii) of TPS 1, this density coding will remain in place until 1 May 2012, after which it will revert to R30/40.

  2. The purpose of a selected code density, simply put, is to determine the density and development patterns of dwellings in a particular location.  By this method, a locality or streetscape of a particular character can be established and maintained.  This desired character could be enhanced further if development guidelines have been adopted.

  3. Mr Jason Bouwhuis, Senior Project Planner, Department of Planning, who appeared for and was a witness for the respondent, submitted that the proposed subdivision would result in a development potential for the site greater than intended by the R20 coding.  The Codes, at Table 1 under an R20 coding, list for single houses and grouped dwellings minimum and average lots sizes of 440 square metres and 500 square metres respectively.  The Codes, at cl 6.1.3, provide for a variation of 5% in these lot areas in certain circumstances.  The proposed subdivision would require concessions of 38.64% from the minimum lot standard for R20 under the Codes and 32% from the average lot size.

  4. Mr Bouwhuis argued that it would not be appropriate to allow the proposed subdivision in conflict with the intent of the R20 density coding of the site under TPS 1 because this would result in a density dwelling inconsistent with the desired streetscape and local residential character. 

  5. Section 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:

    The purpose of the review is to produce the correct and preferable decision at the time of the decision of the review.

  6. The Tribunal's starting position is that it would not normally support a subdivision that would create lots that varied as significantly from the established R coding, as proposed in this instance.  There might be, however, circumstances where a variation to an established R code density might be appropriate.

  7. The applicant argued that circumstances exist in this instance to support the creation of the lots in the proposed subdivision.  These circumstances are said to relate to the existing streetscape, established precedents and the orderly and proper planning of the locality.

  8. The positions of the parties in respect of whether the circumstances support a variation from the R20 coding are addressed in the issues below. 

Issue 2 ­ Whether the proposed subdivision would be appropriate having regard to the impact on the streetscape

  1. Mr Bouwhuis, when examined, said that there was nothing in TPS 1 that referred specifically to streetscapes within Precinct 8.  He said that the respondent was required to have regard to the Codes as a State Planning Policy and so was the Tribunal on review (s 241(1)(a) of the PD Act).  In the explanatory guidelines, the Codes refer to being a guide to the assessment of residential subdivisions by the Commission.  Mr Bouwhuis referred to the streetscape requirements at cl 6.2 of the Codes, where the objective is:

    To contribute towards attractive streetscapes and security for occupants and passers-by, ensure adequate privacy and open space for occupants, and provide an attractive setting for buildings.

  2. Mr Bouwhuis said subdivision was the 'precursor' to determining streetscape and cl 20(4)(c)(ii) of TPS 1 required that subdivision and development is determined in accordance with the requirements of the R20 coding until 1 May 2012.  He referred to the statements at page 31 of 'Vincent Vision 2024' where, for North Perth, reference is made to lower density areas preserving the characteristic single residential form and avoiding inappropriate infill housing.

  3. The applicant argued that there was no particular character or streetscape in Sydney Street.  The house on the site was built in 1934 and there were six other houses nearby in Sydney Street of a similar age.  However, there were also many houses built in the 1960s and others built more recently, some of which were two storey and grouped dwellings.  The applicant referred to photographs of houses to illustrate the different styles and ages.  In the applicant's opinion, Sydney Street had no particular character and the streetscape was not of uniform, older 'North Perth' house types, as found in other streets in North Perth.

  4. In the applicant's submission, even though the existing grouped dwelling developments might have been allowed when the lots were coded R30/40, they were part of the streetscape, and development of the lots in the proposed subdivision would be consistent with this established character.  The applicant also referred to Sydney Street rising up to Gill Street, and also to the east, which she said resulted in there being no constant roofline and the houses built behind those on the street frontage being barely seen.  The applicant said that the development that resulted from the proposed subdivision would not be inappropriate in this streetscape.

  1. The Tribunal has formed the view that over the length of Sydney Street, there is not a streetscape of uniform character.  This was revealed by the viewing of the street and in the photographs filed by the parties.  It is apparent to the Tribunal that south of Hobart Street, grouped dwellings influence the streetscape.  North of Hobart Street, the streetscape is characterised by single dwellings on lots of uniform size.

  2. The Tribunal agrees with the applicant that while there remain some houses that retain a 1930s' character, many of the houses in Sydney Street do not have this appearance.  As pointed out by the applicant, the Council does not have design guidelines for Sydney Street, or, it would appear, for Precinct 8.  The replacement of the existing house on the site with a new house would not, in the view of the Tribunal, be an intrusion into a homogenous streetscape but would be another example of renewal in the street.

  3. The Tribunal considers, however, that it is the lot sizes and density of dwellings, including whether or not grouped dwellings have been allowed, that influence the streetscape at different locations along Sydney Street.  The proposed subdivision would introduce into the street block north of Hobart Street a density of development found at no other lot, other than potentially at No 82 Sydney Street that remains undeveloped some 14 years after a battleaxe subdivision was approved.

  4. The current planning controls in place are directed to no increase in dwelling density north of Hobart Street.  The proposed subdivision would introduce into this section of Sydney Street a form of development that the recent amendments to TPS 1 do not contemplate until after May 2012, if draft TPS 2 has not been gazetted by that date.  The Tribunal is of the view that the proposed subdivision would not be appropriate, having regard to the impact it would have in introducing the resultant higher density of lots, with potential development to follow, in the section of Sydney Street north of Hobart Street.

  5. Also raised as an issue, however, is whether decisions made by the Commission to approve subdivision elsewhere in Sydney Street have created a precedent that supports the creation of the lots in the proposed subdivision.  This is addressed in the next two issues.

Issue 3 ­ Whether the approval granted for the subdivision on Lot 63 Sydney Street creates a precedent for the proposed subdivision

  1. Lot 63 Sydney Street (Lot 63) is about 150 metres to the south of the site in the street block between Hobart Street and Haynes Street.  Lot 63 is about the same size as the site, is on the same side of Sydney Street and also contains an existing single house.  In February 2003, Lot 63 was coded R30/40 under TPS 1.  The respondent granted conditional subdivision approval for the subdivision of Lot 63 into two green title lots, each with a frontage of 7.07 metres to Sydney Street.  This subdivision approval subsequently lapsed.

  2. In January 2009, Amendment No 24 to TPS 1 had lapsed and Lot 63 was again coded R30/40.  The respondent received a survey strata subdivision application proposing two residential lots and a common property access lot.  In March 2009, Amendment No 27 to TPS 1 was gazetted and Lot 63 was again coded R20.  In May 2009, the respondent refused the survey strata application for Lot 63. 

  3. In June 2009, the applicant for the subdivision of Lot 63 lodged an application with the Tribunal for review of the Commission's refusal.  On 11 August 2009, the respondent, on reconsideration, granted conditional approval for a period of three years for subdivision of Lot 63 into two survey strata lots of 257 square metres and 317 square metres respectively, and a common property lot, for access, of 106 square metres.  To date, the existing house on Lot 63 has not been demolished and no subdivision works have commenced.

  4. Mr Bouwhuis argued that the subdivision of Lot 63 is distinguishable from the proposed subdivision.  This was because the streetscape in the vicinity of Lot 63 is one of mixed densities, including grouped dwellings on the lot abutting Lot 63 to the north and three other sites within 100 metres.  In addition, there are five lots coded R30/40 on the south­west corner of the intersection of Sydney Street and Haynes Street.  These developments result in lots with a smaller frontage and less open space, with the majority of the dwellings being two storeys.  Mr Bouwhuis said that the traditional character on the eastern side of Sydney Street has been eroded, as original dwellings have been demolished to accommodate this development.  This redevelopment occurred prior to the gazettal of Amendment No 11 to TPS 1 in 2003 but does affect the streetscape in the vicinity of Lot 63. 

  5. Mr Bouwhuis' evidence was that, by contrast, the streetscape on the eastern side of Sydney Street, between Hobart Street and Gill Street, in the vicinity of the site, was single dwellings, mostly of original character on lots of similar size to the site.  On the western side of this street block was also lots of similar size to the site, with mostly single dwellings, except for two vacant lots.

  6. Mr Bouwhuis' submission was that the subdivision approval granted for Lot 63 does not provide a precedent for the subdivision of the site because of the characteristics that distinguish the streetscape north of Hobart Street from the streetscape south of Hobart Street.

  7. The parties also both made reference to No 82 Sydney Street, located six lots north of the site, which received survey strata subdivision approval in 1996.  This occurred when No 82 Sydney Street had a density coding of R30/40.  Mr Bouwhuis was of the opinion that the approval issued for No 82 can be distinguished because that approval was issued when there were no planning proposals for changing the density codings of the locality and the lot sizes complied with the minimum and average lot size requirements for the R30/40 density coding.  The driveway to the rear of the lot at No 82 is also under width. 

  8. The applicant said that the site and Lot 63 were subject to similar factors.  In the applicant's submission, approval of the subdivision on Lot 63, while coded R20, is a precedent of the subdivision of the site.  The proposed subdivision would also be the same as that approved for No 82 Sydney Street.

  9. The Tribunal considers that the approval granted for the subdivision of Lot 63 does not establish a precedent for the subdivision of the site.

  10. As set out under Issue 2 above, the Tribunal has formed the view that Sydney Street is not a single streetscape but is of sufficient length to present different streetscapes along its length.  Lot 63 is in that section of Sydney Street, south of Hobart Street, with a streetscape influenced by grouped dwelling development.  It might be that there would be an argument in favour of other subdivision proposals south of Hobart Street, depending upon the circumstances of the application.

  11. The Tribunal notes that the subdivision of Lot 63 into lots consistent with R30/40 was approved when the density coding was again R20.  This is not considered to provide a basis for setting aside the density coding over the full length of Sydney Street.  The density coding in place must be a consideration, but also, so must other factors, such as existing streetscape and the subdivision and development pattern.  The Tribunal has concluded that it is these additional factors that militate against support for subdivision of the site.

  12. Number 82 Sydney Street has been subdivided, but this is the only lot north of Hobart Street and no other relevant subdivision has occurred in the street block since 1996.

Issue 4 ­ Whether the proposed subdivision would create an undesirable precedent for the subdivision of other lots coded R20

  1. Mr Bouwhuis identified 22 lots on both sides of Sydney Street, north of Hobart Street, ranging in size from 565 square metres to 998 square metres.  He said approval of the proposed subdivision would set an undesirable precedent for the subdivision of these lots.  The subdivision would be undesirable because the resultant lots would significantly depart from the R20 density coding of TPS 1, would be inconsistent with the Council's proposals to down-code Precinct 8, and the additional development would further erode the streetscape.

  2. The applicant's argument was that houses on the R20 coded lots were deteriorating and owners were 'waiting for something to happen'.  It was the applicant's opinion that many older houses between Hobart Street and Gill Street required considerable repairs, were poorly maintained and some were tenanted with people who behaved badly.  Approving the proposed subdivision and any following subdivision of neighbouring lots would result in new houses with resident owners and proper garages.  This would increase property values, increase security and 'clean up' the whole street.  The effect of subdivision approval would be a precedent for improving the area. 

  3. Precedent as a consideration in development and subdivision proposals has been addressed by the Tribunal in a number of matters, including Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [71] ­ [75], where the Tribunal adopted the following criteria, from Goldin v Minister for Transport (2002) 121 LGERA 101, as the circumstances in which precedent is a relevant consideration in a planning assessment. These are:

    (1)That the proposed development or subdivision is not in itself unobjectionable; and

    (2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.

  4. In this matter, the Tribunal has formed the view that the proposed subdivision would be objectionable.  This is because it would introduce into the street block north of Hobart Street a lot size pattern different from that now existing.  This would facilitate development inconsistent with the current subdivision and development controls in place.

  5. The Tribunal is also concerned that there would be more than a mere chance of later undistinguishable applications.  This is because north of Hobart Street the lot size pattern is one of lots similar in size to the site.  There is no discernable distinguishing characteristic of the site that differentiates it from any of these other lots.  The Tribunal is of the view that an approval to subdivide the site would be viewed by other landowners as a precedent for them to follow. 

  6. The applicant, however, argued that the planning of the locality was misguided, and that there was a case for allowing subdivision and development in Sydney Street, and even Precinct 8, consistent with the lot size pattern she is seeking.  The orderly and proper planning of the locality is the next issue.

Issue 5 ­ Whether the proposed subdivision would be inconsistent with orderly and proper planning

  1. Amendment No 28 to TPS 1 was gazetted on 27 August 2010.  This amendment again included the site and much of Precinct 8 within the R20 density coding under TPS 1.  As with previous Amendment No 11, Amendment No 22, Amendment No 24 and Amendment No 27, the Minister for Planning approved Amendment No 28 on the basis that progress was being made in the review of TPS 1.  A 'sunset clause' was again included at cl 20(4)(c)(ii) of TPS 1, with the date 1 May 2012, which it was estimated would coincide with the gazettal of draft TPS 2, after which the density coding would otherwise revert to R30/40. 

  2. The amendments to recode the locality to R20 had commenced in 2002 with submissions to the Council from the resident-based North Perth Precinct Group.  The Council had subsequently, in 2005, undertaken studies for 'Vincent Vision 2024' and these studies formed the basis for the review of TPS 1 and the more recent amendments to TPS 1, including Amendment No 28.

  3. The applicant submitted that the Council was now listening to only a small number of residents in Precinct 8.  The locality should now be coded R30/40 to encourage new development in the area because that was what the applicant considered most people now wanted.  The applicant referred to figures from Mr Bouwhuis' witness statement and the Department of Planning report to the Minister for Planning on Amendment No 28 (Exhibit 2), which showed that in Precinct 8, since 2002, the number of lots had increased from 479 to 500.  The applicant also referred to the reported responses to the advertising of the amendments, which have declined from 287 signatures, with 246 people supporting the amendment in 2002, to 126 signatures with 95 people supporting the amendment in 2010.  The applicant argued that the support was not representative in the majority of landowners in Precinct 8.

  4. The applicant said that in localities where subdivision had occurred, such as in Sydney Street, the resultant development was to an accepted standard and had maintained local character.  The planning for this locality should now be for a density coding of R30/40 and her proposed subdivision should be allowed.

  5. Mr Bouwhuis said that in his opinion the proposed subdivision would not be consistent with orderly and proper planning.  This was because:

    •The subdivision would be inconsistent with cl 20(4)(c)(ii) of TPS 1 which required subdivision to be consistent with R20 coding.

    •Clause 19(2) of TPS 1 required development to comply with the Codes and the proposed lots would be smaller than the minimum and average lot sizes for R20 at Table 1 of the Codes.  The proposed variation from the lot size standards would be greater than the 5% considered acceptable at cl 6.1.1 of the Codes.

    •The proposed subdivision would be inconsistent with the vision of the community set out in 'Vincent Vision 2024'.

    •The proposed subdivision would be inconsistent with maintaining the streetscape currently dominated by single residential dwellings.

  1. The Tribunal notes that the Commission officer's report on Amendment No 28, referred to above, made reference to 'Vincent Vision 2024' which, it is said, when implemented through the review of TPS 1, will ensure higher residential density in strategic locations such as around train stations, major roads, strategic development sites and commercial areas.  That is, rather than existing inner and middle suburbs being subjected to blanket redevelopment, targeted opportunities for increased housing density and diversity would be identified and that amenity of surrounding residential areas would be preserved.  The draft local planning strategy of the Council identified the strategic locations with potential for new dwellings.  Streetscape and residential design policies would be developed so that redevelopment would be compatible with existing development and protect residential areas. 

  2. The Tribunal notes that the Town of Vincent has been granted five amendments to TPS 1 which, in effect, have resulted in a moratorium on subdivision in much of Precinct 8 while the Council completes its review of TPS 1 and develops a local planning strategy.  Why the Council has taken nearly nine years to complete this work was not the subject of evidence before the Tribunal.  The Tribunal considers, however, that, as the Minister for Planning was prepared to endorse Amendment No 28 to TPS 1, there remains merit in the review of TPS 1 being finalised.

  3. The Tribunal has formed the view that setting aside the current R20 coding in locations where an approval would impact on a streetscape and create an undesirable precedent would not be consistent with orderly and proper planning.  The respondent has identified that higher density development might be appropriate at strategic locations, but to allow Precinct 8 to remain at a blanket higher coding at the time this work was being undertaken would pre­empt the outcome of the planning deliberations.  The Tribunal considers that, particularly in areas where ultimately R20 might be decided as the appropriate density, the R20 coding now in place being the basis for decision-making is an appropriate approach to the planning of the area.  To allow a subdivision such as that proposed prior to the subdivision and development pattern being established for Precinct 8, in conflict with the planning controls in place for R20 under TPS 1, would not be consistent with orderly and proper planning.

  4. The applicant acknowledged that the site currently had an R20 coding under TPS 1 but said that when Amendment No 27 expired on 1 June 2010, she asked officers of both the Town of Vincent and the Department of Planning about the situation and was informed by both officers that it was open to her to lodge an application to subdivide the site.  The applicant did not have a plan of the proposed subdivision to attach to her form and said that, after consultation, officers at the Department of Planning had told her that the plan attached to her 2008 application to subdivide would be 'fine'. 

  5. The evidence before the Tribunal was that the surveyor, acting on behalf of the applicant in 2008, filed three plans with the then application to subdivide.  These included the plan 'Option 1' and the plan entitled 'Proposed Survey Strata', referred to above, both of which were dated '19/9/08'.  As described above, one plan showed the house being demolished and a 4 metre wide access leg, and the other plan showed the house being retained and a 2.42 metre wide access leg.  The applicant's submission was that she assumed the plan showing the house being demolished and a 4 metre wide access leg being created would be attached to the 2010 application and said she had no knowledge of any other plans lodged by the surveyor in 2008. 

  6. Evidence before the Tribunal included a copy of the applicant's Form 1A application for survey strata subdivision, dated 8 June 2010, and signed by the applicant.  On page 3 of the Form 1A under the summary of the proposal, the applicant had written that on the site there was 'one house' and 'one outbuilding'.  Boxes ticked show the house to be retained and the outbuilding to be removed.  In the report on the subdivision application from the planning officer to the Commission on 31 August 2010 provided in the respondent's bundle of documents, it states that from his conversation with the applicant he understood that the house was to be retained and, as a consequence, the plan showing the house to be retained and a 2.42 metre wide driveway was attached to the subdivision application form.

  7. The respondent's bundle of documents also included a report from the planning officer of the Town of Vincent to the Council which recommended refusal of the application because Amendment No 28 to TPS 1 was seriously entertained.  The Council noted that at the time the application was before it, the coding of the site was R30/40, and recommended approval with conditions that ensured the certificate of title would be endorsed so that the house was retained, consistent with what the Council understood the application proposed.

  8. The applicant expressed the view that because of the confusion about her proposed subdivision and because her application was submitted when the coding was R30/40, the application should have been approved as consistent with the R30/40 code requirements.

  9. Mr Bouwhuis said that even had the alternative plan showing the house to be demolished and a 4 metre wide access leg been before the Commission, the decision to refuse the application would have been the same.  This was because, by the time the application came before the Commission, Amendment No 28 was a seriously entertained planning proposal. 

  10. As set out above, the Town of Vincent proposed Amendment No 28 in December 2009, and the proposed amendment was advertised for public comment from January to March in 2010.  The Minister for Planning informed the Council that he would grant final approval to Amendment No 28 if a 'sunset clause' were included.  The Council agreed to the changes to Amendment No 28 on 5 July 2010 and then recommended to the Commission that the subdivision be approved, with the house retained, on 20 July 2010.  When the subdivision application was before the Commission in August 2010, the Minister for Planning had, on 10 August 2010, granted Amendment No 28 final approval, and all that remained was gazettal of that decision.  The advertising of Amendment No 28 to TPS 1 would have been public knowledge available to the applicant but the Tribunal appreciates that the Commission, but not the applicant, would have been aware of the final steps being taken in respect of Amendment No 28.  It is inescapable, however, that by the time the subdivision application was before the Commission, Amendment No 28 was seriously entertained and, other than gazettal, had no further steps to be completed.

  1. The Tribunal has formed the view that notwithstanding the confusion over which plan was the correct plan for the proposed subdivision, as argued by Mr Bouwhuis, there was a basis for the Commission to consider the proposed subdivision as being inconsistent with orderly and proper planning. 

  2. When the subdivision refusal came before the Tribunal, Amendment No 28 to TPS 1 had been gazetted.  The Tribunal has concluded that to favour an application inconsistent with cl 20(4)(c)(ii) of TPS 1 in a location where an increase in lot density would impact on the streetscape and set an undesirable precedent would be inconsistent with orderly and proper planning.

Conclusion

  1. The first issue was whether the proposed subdivision would be appropriate, having regard to the density coding of the site under TPS 1.  The Tribunal's starting position is that it would not normally support a subdivision that would create lots that varied as significantly from the established R coding as those proposed.  The Tribunal acknowledged, however, that there may be circumstances where a variation to lot size might be appropriate.

  2. The applicant argued that circumstances relating to existing streetscape, established precedents and orderly and proper planning of the locality exist in this instance to support the proposed subdivision. 

  3. The next issue considered was whether the proposed subdivision would be appropriate, having regard to the impact on the streetscape.  The Tribunal formed the view that while some houses in Sydney Street retain a 1930s' character, many houses do not.  The replacement of the existing house on the site with a new house would not be an intrusion into a homogenous streetscape but would be another example of redevelopment in the street.

  4. The Tribunal found, however, that it is the lot sizes and density of dwellings that influence the streetscape at different locations along Sydney Street.  The proposed subdivision would introduce into the street block north of Hobart Street a density of development found at no other lot, other than potentially at No 82, which remains undeveloped some 14 years after a battleaxe subdivision was approved.

  5. The third issue considered was whether the approval granted for the subdivision on Lot 63 Sydney Street creates a precedent for the proposed subdivision.  Lot 63 is south of Hobart Street within a streetscape influenced by grouped dwelling development.  The Tribunal notes that the subdivision of Lot 63 into lots consistent with R30/40 was approved when the density coding was again R20.  This is not considered, however, to provide a basis for setting aside the density coding over the full length of Sydney Street.  The density coding in place must be a consideration, but also must other factors, such as existing streetscape and the subdivision and development pattern.  The Tribunal has concluded that it is these additional factors that militate against support for subdivision of the site.  Number 82 Sydney Street, near the site, has been subdivided but no other relevant subdivision has occurred in the street block north of Hobart Street since 1996. 

  6. The Tribunal has concluded that the approval granted for the subdivision of Lot 63 does not establish a precedent for the subdivision of the site.

  7. The fourth issue was whether the proposed subdivision would create an undesirable precedent for the subdivision of other lots coded R20.  The Tribunal has formed the view that the proposed subdivision would create an undesirable precedent.  This is because the subdivision would be objectionable, as it would introduce into the street block north of Hobart Street a lot size pattern different from that now existing.  There would also be more than a mere chance of later undistinguishable applications.  This is because north of Hobart Street the lot size pattern is one of lots similar in size to the site.  There is no discernible distinguishing characteristic of the site that differentiates it from any of these other lots.  The Tribunal is of the view that an approval to subdivide the site would be viewed by other landowners as a precedent for them to follow.  This would be undesirable because it would facilitate development inconsistent with the current subdivision and development controls in place.

  8. The final issue considered was whether the proposed subdivision would be inconsistent with orderly and proper planning.  The application to the Commission had been made when the density coding of the site had reverted from R20 to R30/40 and there had been confusion about whether the correct plan had been attached.  When the Commission's refusal came before the Tribunal for review, however, Amendment No 28 to TPS 1 had been gazetted and the coding had again become R20.  The Tribunal has concluded that to favour the proposed subdivision which is inconsistent with cl 20(4)(c)(ii) of TPS 1, in a location where an increase in lot density would be inconsistent with the streetscape and would set an undesirable precedent, as found in the consideration of the issues above, would be inconsistent with orderly and proper planning.

  9. The Tribunal has therefore decided to dismiss the application for review and affirm the Commission's refusal of the application to subdivide the site.

Orders

1     The application for review is dismissed.

2The decision of the Western Australian Planning Commission to refuse the application for the survey strata subdivision of No 66 (Lot 55) Sydney Street, North Perth is affirmed.

I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR J JORDAN, MEMBER

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Nicholls v Western Australian Planning Commission [2005] WASAT 40