Gurgone and Anor and Western Australian Planning Commission
[2006] WASAT 92
•6 APRIL 2006
GURGONE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 92
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 92 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:542/2005 | 14 FEBRUARY 2006 | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 6/04/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALDO GURGONE MARY GURGONE WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Right-of-way – Condition 14 – Modified Condition 14 – Orderly and proper planning – Developer contributions – Fair and reasonable |
Legislation: | Metropolitan Region Scheme Residential Design Codes of Western Australia 2002 Town of Vincent Town Planning Scheme No 1, cl 47 Town Planning and Development Act 1928 (WA), s 5AA, s 24(5), s 26(1)(a)(i), s 61(1)(a) |
Case References: | Hill v State Planning Commission (1994) 10 SR (WA) 354 Nil |
Orders | 1. The application for review is dismissed.,2. That the modified Condition 14 issued by the respondent on 20 July 2005 be amended to read:,"That in the absence of an upgraded sealed and drained rightofway adjacent to the subject land that the portion of the rightofway abutting it from the southern boundary of the proposed 271 square metre lot to the crossover for the proposed 313 square metre lot, as depicted on a development approval issued by the Town of Vincent, to be constructed and drained full width and the remaining portion of the rightofway to the existing Walcott Street carriageway being made trafficable at the subdivider's cost and to the satisfaction of the Western Australian Planning Commission. (LG)",3. In relation to Order 2, the respondent is to file with the Tribunal and serve on the applicant a revised set of conditions within 14 days of this order. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : GURGONE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 92 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : 14 FEBRUARY 2006 DELIVERED : 6 APRIL 2006 FILE NO/S : DR 542 of 2005 BETWEEN : ALDO GURGONE
- MARY GURGONE
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Right-of-way – Condition 14 – Modified Condition 14 – Orderly and proper planning – Developer contributions – Fair and reasonable
Legislation:
Metropolitan Region Scheme
Residential Design Codes of Western Australia 2002
(Page 2)
Town of Vincent Town Planning Scheme No 1, cl 47
Town Planning and Development Act 1928 (WA), s 5AA, s 24(5), s 26(1)(a)(i), s 61(1)(a)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicants : Selfrepresented
Respondent : Mr J Algeri
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Hill v State Planning Commission (1994) 10 SR (WA) 354
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review by Aldo and Mary Gurgone to the State Administrative Tribunal arises from a decision of the Western Australian Planning Commission to impose a modified Condition 14, resulting from a request for reconsideration, that is unacceptable to the applicants.
2 The review required an analysis of both the State, and local authority policies and practices in relation to the provision of vehicle access from the public road system to lots with access to a right-of-way, and the matter of developer contributors towards the upgrading of a right-of-way.
3 The principal questions addressed were whether the modified Condition 14 is in the interests of orderly and proper planning, and whether the imposition of the modified Condition 14, requiring the sealing and drainage of a portion of the right-of-way full width, is fair and reasonable in the circumstances of this case.
4 In the view of the Tribunal, the weight of argument falls in favour of the respondent but, if the applicants choose to wait until the right-of-way is upgraded by the local authority adjacent to the subject land, the need for the modified Condition 14 falls away.
Introduction
5 The application for review by Mr A and Mrs M Gurgone (applicants) on 17 August 2005, arises from the decision letter of the Western Australian Planning Commission (respondent) on 20 July 2005 to impose a modified Condition 14 on the subdivision of land at Lot 235 Walcott Street, Coolbinia (subject land), that is unacceptable to the applicants.
6 Earlier, on 2 April 2005, the respondent had approved the application for subdivision dated 7 December 2004, into two strata lots of 271 square metres and 313 square metres subject to the imposition of fourteen conditions. Conditions numbered 13 and 14 were the subject of a request for reconsideration dated 2 May 2005, in accordance with the provisions of s 24(5) of the Town Planning and Development Act 1928 (WA) (the TPD Act).
7 In its letter of 20 July 2005, the respondent advised:
(Page 4)
- "Condition 13 states:
'13. The portion of the right-of-way abutting the subject land being widened by 0.485 metres by the subdivider transferring the land required to the Crown free of cost for revesting in Her Majesty as of Her former Estate for the purpose of road widening. (LG)'
…
Having considered the grounds for reconsideration of this condition, the Commission has resolved to delete Condition 13 …"
8 In relation to Condition 14, the respondent advised:
"Condition 14 states:
'14. The portion of the right-of-way abutting the subject land, including the portion to be widened, to be constructed and drained full width at the subdivider's cost and to the satisfaction of the Western Australian Planning Commission. (LG)'
…
Having considered the grounds for reconsideration of this condition, the Commission has resolved to modify Condition 14 to read as follows:
'14. The portion of the right-of-way abutting the subject land from the southern boundary of the proposed 271 [square metre] lot to the crossover for the proposed 313 [square metre] lot, as depicted on a development approval issued by the Town of Vincent, to be constructed and drained full width and the remaining portion of the right-of-way to the existing Walcott Street carriageway being made trafficable at the subdivider's cost and to the satisfaction of the Western Australian Planning Commission. (LG)' "
9 The overall effect of this decision on 20 July 2005, was to delete Condition 13 and modify Condition 14, but also to give rise to the application for review as provided for under s 26(1)(a)(i) of the TPD Act.
(Page 5)
Subject land
10 The subject land is described as Lot 235 on Certificate of Title Volume 1753 Folio 887. It has an area of 594 square metres.
11 The site is triangular in shape and has a front boundary to Walcott Street at 48.54 metres, with a single side boundary of 24.48 metres and a rear boundary of 54.38 metres. The rear boundary adjoins a 5.03 metre wide unconstructed right-of-way and there is an existing dwelling on-site which will be retained.
Legislative framework
12 The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "residential" with an R60 coding in the Town of Vincent Town Planning Scheme No 1 (TPS 1). Walcott Street is reserved in the MRS as "Other Regional Roads".
13 Section 5AA of the TPD Act provides for statements of planning policy and the Tribunal is required "to have due regard" to such statements under s 61(1)(a).
14 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 to provide a context for decision-making on land use, subdivision and development in Western Australia.
15 Specific policies relevant to this matter under SPP 1 include:
• Statement of Planning Policy (3.1);
• Residential Design Codes of Western Australia 2002 (Codes);
• Development Control Policy 1.1 – Subdivision of Land – General Principles. (DC 1.1)
• Development Control Policy 1.3 – Strata Titles. (DC 1.3)
• Development Control Policy – Residential Subdivision. (DC 2.2)
• Development Control Policy Residential Road Planning. (DC 2.6)
16 Again, planning bulletins issued by the respondent that are relevant include:
(Page 6)
- • Planning Bulletin 18 – Developer Contributions for Infrastructure (PB 18); and
• Planning Bulletin 33 – Rights-of-Way or Laneways in Established Areas – Guidelines. (PB 33)
17 The provisions of TPS 1 are important in this matter, as are the provisions of the Planning and Building Policy Manual (manual) which contains policies adopted by Council pursuant to cl 47 of TPS 1. The most relevant to this review are:
• Policy No 3.1.8 – North Perth Precinct (P 3.1.8); and
• Policy No 3.1.62 – Vehicle Access to Dwellings via a Right of Way (P 3.1.62)
Respondent's position
18 The respondent's position is outlined in the summary and conclusions to the statement of evidence, dated 24 January 2006, of Mr Malcolm Logan, a qualified town planner for the Department of Planning and Infrastructure. He argues:
a) Vehicular access to the proposed lots is solely from the right-of-way and the aim of modified Condition 14 is to ensure that the lots are serviced with an access-way that is developed to a standard that is acceptable to the respondent. The condition has a proper planning purpose in that it will assist in preventing a situation where lots without proper access are created.
b) An approval without the imposition of modified Condition 14 would result in the creation of lots that are reliant on a non-constructed road for vehicular access purposes. This is contrary to proper and orderly development.
c) The respondent is entitled to seek a development contribution for the required upgrading of the right-of-way.
d) In fulfilling its responsibilities, the respondent is guided by the policy provisions and the principles for land use and development in SPP 1, the provisions of TPS 1 and the provisions of PB 18 and PB 13.
e) In resolving to modify the original Condition 14 in response to the request for reconsideration, the respondent sought to
- accommodate the wishes of the applicants in so far as it reasonably could.
- f) Whilst the Town of Vincent will carry out the upgrading of the right-of-way in due course as part of its right-of-way upgrading programme, any lots that are created beforehand require alternative arrangements to be put in place to achieve the necessary upgrading. Condition 14 as modified achieves this.
g) An approval without modified Condition 14 would set an undesirable precedent for further subdivision of other similar lots in the vicinity.
Applicants' position
19 The applicants' position is broadly outlined in a letter dated 16 August 2005, accompanying the application for review. It argues:
a) The modified Condition 14, as outlined in the respondent's reply of 20 July 2005 to the request for reconsideration, should be waived. It is unfair and lacks common sense to construct and drain the specified portion of the right-of-way full width.
b) At no point in the numerous discussions with the Town were the applicants, or their representative from Classique Designer Homes, ever advised that the upgrading of the right-of-way would be part of the requirements of subdivision.
c) As the right-of-way abuts the applicants' property, and the properties on the other side of the right-of-way, there should not be a requirement to shoulder the total cost.
d) The construction and drainage of a small section of the right-of-way with undrained sandy soil at either end would be an exercise in futility. Over a period of 12 months, the constructed section would be destroyed and would then need to be repaired.
e) As a right-of-way is usually the property of the local authority, they should arrange the work to be done in an organised and thorough fashion so that it is a solid and firm structure and does not become easily eroded.
(Page 8)
- f) If the local authority undertakes the work and requires property owners to pay for the work, the costing should be fair and proportionate for those owners whose property abuts the right-of-way.
20 In the applicants' letter of 8 March 2006, the following additional points were made:
a) The right-of-way belongs to the Town of Vincent and serves a total of twelve garages to existing residences. There are several other driveway entrances to the rear of properties which back onto the right-of-way.
b) The right-of-way is scheduled for construction and drainage in 2006/2007. By the time any approval for subdivision was possible, the period for construction and drainage would be fast approaching.
c) In a letter to the respondent from the Town of Vincent dated 17 June 2005, they advised that the Town did not require the portion of the right-of-way abutting the subject land to be constructed and drained full width at the subdivider's cost.
21 In an earlier advice of 2 May 2005, as part of the request for reconsideration, the applicants advised:
" … if we are required to construct and drain the section of right of way [sic] abutting … our property, that we be required to bear the cost of the half of the right of way, and do not need to bear the cost of the portion abutting the properties behind our property."
22 A peripheral issue relating to the preparation of several papers by the State Solicitor's Office, for the respondent, when the applicants chose that no party be represented by a lawyer, was also raised in the applicants' letter of 8 March 2006.
Planning issues
23 The principal planning issues in this matter relate to the provision of vehicle access from the public road system to the proposed lots and the question of developer contributions.
Vehicle access
24 The relevant provisions of State and local policies include:
(Page 9)
- a) DC 1.1 (Section 2)
"• To ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
• To ensure constructed vehicle access from the gazetted public road system to each new lot."
b) DC 1.3:
"3.3.4 …
(e) The proposed lot or lots will have adequate access …"
3.7.1 New green title lots will be created only where each lot has, or can be, provided with direct frontage access to a constructed public road, which is connected to the road system of the locality. This is to ensure the provision of public utility and other services as well as to provide vehicular and pedestrian access to the lot.
3.7.2 … The WAPC may also require existing roads or [rights-of-way] to be widened, constructed, upgraded or dedicated to ensure compliance with this policy."
c) DC 2.6:
"1.3.2 Rear laneways provide vehicular access to the rear of lots. They can be used where there are parking and/or access difficulties along frontage roads such as where the lots are narrow or along busy local distributors …"
d) PB 33 (section 4):
"The upgrading of rights-of-way to a sealed and drained standard should be required in areas of intensification of residential and commercial development. It is suggested that the proponents of development with sole vehicular access via the rights-of-way should be required to seal and drain the portion of the rights-of-way abutting the subject property (if not already constructed to that standard) and make trafficable (to the satisfaction of the local government) the rest of the rights-of-way to the closest public street. In other cases contributions towards rights-of-way upgrading may be required as a
- condition of subdivision or development approval. Such contributions may be set aside in a trust fund by the local government for the exclusive use of right-of-way upgrading in the locality."
- e) P 3.1.8:
"Vehicular access to properties abutting ... Walcott Street is to be taken from another road or lane way where possible …"
f) P 3.1.21:
" … it is the Town of Vincent's aim to require utilization [sic] of rear rights of way wherever possible, and with that, to reduce the number and width of crossovers to the street."
g) P 3.1.62:
In allowing for sole vehicular access via a right-of-way, the policy relevantly requires:
"Compliance with the Western Australian Planning Commission's Planning Bulletin No. 33 dated July 1999 relating to Rights-of-way or Laneways in Established Areas – Guidelines."
Developer contributions
26 The relevant provisions of State policy include:
a) DC 1.1 (Section 2):
"• To make appropriate arrangements for development contributions, where necessary and relevant, for the orderly and proper planning of the locality containing the subdivision.
b) PB 18 (Section 3):
(Page 11)
- "It is generally accepted that the following principles should apply in determining the validity of contributions:
• The subject subdivision must create or contribute to the need for the particular infrastructure or facility for which the contribution is sought.
• The contribution must be fair and reasonable and reflect the true costs of the infrastructure or facility.
• The contribution should be fairly apportioned between multiple landowners proportional to the share of the need created by each landowner's subdivision.
27 It is clear to the Tribunal that the two basic principles which apply where developer contributions are sought are that the subdivision must itself generate the need for the infrastructure or facility, and that the contribution costs should be equitably shared between all landowners.
Assessment of proposal
28 In assessing the applicants' proposal that the modified Condition 14 be waived, the following two questions are relevant:
a) Is the modified Condition 14 in the interests of orderly and proper planning?
b) If the modified Condition 14 is retained as is, would that be a fair and reasonable decision in the circumstances of this case?
29 On the question of orderly and proper planning it would certainly not be proper for landowners of existing or recently purchased lots to have to negotiate a sandy right-of-way to access their property, particularly in a well established local authority area like the Town of Vincent.
30 Although those exact circumstances may not apply in this case, as the base of the right-of-way has probably been consolidated over the years and is apparently well used at present, it would certainly be in the interests of orderly and proper planning in an R60 coded residential zone for the right-of-way to be sealed and drained, and linked to the road system of the locality. This is particularly so for properties, such as the subject land, which face a heavily trafficked road and attempts are being made to limit traffic movement onto Walcott Street in favour of the right-of-way. There is certainly a body of public policy, as outlined at [24] and [25] above, that support the upgrading of a right-of-way in areas of residential intensification.
(Page 12)
31 On the question of the fairness of the modified Condition 14, the principles which emerge from Hill v State Planning Commission (1994) 10 SR (WA) 354 are helpful in that conditions imposed:
"1. must fairly and reasonably relate to the development;
2. must be reasonably capable of being regarded as relevant to the implementation of planning policy;
3. may not be so unreasonable that no reasonable planning authority could have imposed them;
4. cannot leave open the consideration of an essential element to another authority which may have the effect of altering the proposed development significantly."
32 What would appear fair and reasonable in this case is that a landowner whose property backs onto the right-of-way should be obliged to pay the cost of sealing and drainage for half the width of that section of the right-of-way adjacent to their property. This is in effect the position put by the applicants in an advice to the respondent of 2 May 2005 in relation to the original Condition 14. That condition had required that the cost of sealing and drainage of the half the width of the right-of-way adjacent to the subject land was to be met by the applicant.
33 One way in which a fair and equitable arrangement can be put in place, is by way of a development scheme in which individual owners meet costs on a pro-rata basis. However, no such scheme is in place and nor is one contemplated. In fact, according to the Town's advice to the respondent of 17 June 2005, it had no objection to the removal of the original Condition 14. A possible reason for this may be found in point 5 of the applicants' letter of 8 March 2006 that construction and drainage of the right-of-way is in the Council's work programme for 2006/07.
34 The Tribunal's position is that there is no information before it to substantiate this claim and, if the upgrade did not proceed on schedule, it would not be the first time that a public work was delayed or deferred indefinitely.
35 One option available to the parties would be for the financial contribution from the applicants to go towards the total cost of upgrading the right-of-way by way of a trust fund. If, for the sake of the argument, the applicants' property boundary of 54.38 metres adjacent to the right-of-way took up approximately 34% of the total length of the
(Page 13)
- right-of-way between Walcott Street and Hilda Street (which it does), then the applicants' contribution towards half the width of the right-of-way would be approximately 17% of the total cost of the upgrading. However, such a contribution may well be in excess of the financial requirement of the modified Condition 14.
36 As explained in the witness statement of Mr Logan:
"77. Whilst the Applicants were responsible for the 'construction and drainage full width' of a length of some 54 metres in terms of the original Condition [No] 14, this requirement was reduced to a length which could be of the order of some 21 metres in terms of the modified Condition [No] 14. The precise distance will however be dependent on the location of the cross over for the proposed 313 square metres lot as shown on the development approval."
37 It would seem to the Tribunal that such a financial contribution, together with the costs of the remainder of the right-of-way being made trafficable as required by modified Condition 14, would not in total be that far removed from meeting the cost of sealing and drainage of half the width of the right-of-way along the applicants lot boundary of 54.38 metres as suggested by Mr Gurgone in his request for reconsideration letter of 2 May 2005.
38 A difficulty that the Tribunal has with an actual financial contribution in this case is that other owners of property along the right-of-way may have no intention to subdivide in either the short or long term, and indeed, the shape and dimensions of their individual lots may prevent them from doing so. Also, if it is the intention of Council to seal and drain the right-of-way without individual contributions to the cost then the whole exercise of collecting contributions would be pointless.
39 However, if the applicants wish to take advantage of the subdivisional potential of the subject land in the short term then, in the interests of orderly and proper planning, the imposition of the modified Condition 14, or a similar condition, would be necessary. If, on the other hand, they were to choose to delay their decision to proceed until after the right-of-way was sealed and drained past their property, then the relevant costs would be met by the ratepayers of the Town and not themselves.
(Page 14)
Conclusions
40 The Tribunal believes that the modified Condition 14 imposed by the respondent on 20 July 2005 must be assessed on the basis of whether it is fair and reasonable, and whether it is in the interests of orderly and proper planning. On the latter question, the weight of argument is with the respondent but on the former, the situation is not so clear.
41 If all landowners were contributing to the cost of sealing and drainage of the right-of-way, then it would be fair and reasonable for the applicants to pay for the cost of half the width of the right-of-way adjacent to the subject land. This in fact is the view of the applicants.
42 However, the reality of the situation is that the right-of-way has yet to be upgraded by the local authority and it would appear from their letter to the respondent of 17 June 2005, that they have no intention of recouping the costs directly from the affected landowners. In those circumstances, the applicants may choose to delay proceeding with their subdivision until the right-of-way is upgraded past their property.
43 If the applicants wish to pursue the subdivision in the short term, then the view of the Tribunal is that on balance, the modified Condition 14 is fair and reasonable in the interests of orderly and proper planning and in the particular circumstances of this review. However, a slight change to the wording of the condition is required to make it perfectly clear that in the event that the right-of-way is constructed before subdivision that modified Condition 14 no longer applies.
44 On a peripheral issue raised by the applicants in [22] above, in relation to the respondent being represented by the State Solicitor's Office when the applicants elected that no party be represented by a lawyer, it should be made clear that what is meant by such an election is that it precludes legal representation at the formal hearing of the case.
Orders
45 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
2. That the modified Condition 14 issued by the respondent on 20 July 2005 be amended to read:
"That in the absence of an upgraded sealed and drained right-of-way adjacent to the subject land that the portion of the right-of-way abutting it from the southern
- boundary of the proposed 271 square metre lot to the crossover for the proposed 313 square metre lot, as depicted on a development approval issued by the Town of Vincent, to be constructed and drained full width and the remaining portion of the right-of-way to the existing Walcott Street carriageway being made trafficable at the subdivider's cost and to the satisfaction of the Western Australian Planning Commission. (LG)"
- 3. In relation to Order 2, the respondent is to file with the Tribunal and serve on the applicant a revised set of conditions within 14 days of this order.
- I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
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