HANHAM and WESTERN AUSTRALIAN PLANNING COMMISSION

[2016] WASAT 28

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HANHAM and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 28

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 28
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:380/2014	Heard:	19 NOVEMBER 2015
Coram:	MR M SPILLANE (SENIOR MEMBER) MR D MACLEAN (MEMBER)	Delivered:	24/03/16
No of pages:	40	Judgment Part:	1 of 1
Result:	Respondent's decision refusing subdivision application is affirmed Application for review is dismissed
Category:	B
PDF Version

Parties:	ALISON MARY HANHAM WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Town planning ­ Subdivision ­ Road width ­ Outline development plan ­ Generally in accordance with ­ Due regard ­ Orderly and proper planning
Legislation:	Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 27(1) Sch 2 Pt 4 Planning and Development Act 2005 (WA), s 159, s 159(1)(c), s 241 Shire of Kalamunda Local Planning Scheme No 3, cl 3.2, cl 4.2.1, cl 6.2.2, cl 6.2.2.2, cl 6.2.9, Sch 11 State Administrative Tribunal Act 2004 (WA), s 31
Case References:	Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 Macri and Western Australian Planning Commission [2013] WASAT 157 Macri v Western Australian Planning Commission [2014] WASC 153 Mainstay Group Pty Ltd v Moreland City Council [2005] VCAT 2189 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 Minister for Aboriginal Affairs v Peko­Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24 Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 Zampatti v Western Australian Planning Commission [2010] WASCA 149
Orders	1. The respondent's decision dated 30 June 2015 refusing the subdivision application is affirmed.,2. The application to review the respondent's decision is dismissed.
Summary	Ms Alison Hanham sought approval from the Western Australian Planning Commission for a plan of subdivision at No 40 Hardey East Road, Wattle Grove.  The subdivision proposed 26 lots of 350m² to 354m² for residential purposes.,The proposed subdivision included four new roads, three of which were supported by the respondent.,The fourth road was proposed as 12 metres wide along the north­western boundary.,The sole issue for resolution in the review was whether the proposed subdivision should be approved having regard to the width of the proposed 12 metre road on the north­western boundary of the proposed subdivision. ,The Wattle Grove Urban Cell 9 Outline Development Plan depicted a 15 metre wide road being contained within the applicant's lot.  The applicant proposed that 3 metres of the 15 metre wide road was capable of being provided when the adjoining landowner subdivided their land in the future and that it was only necessary that the applicant provide a 12 metre wide road on its land at this point in time.  ,Having heard all of the evidence and having considered the matter, the Tribunal saw no sound planning reason for departing from the Outline Development Plan for the purposes of this application.  The Tribunal therefore affirmed the Planning Commission's decision and the application for review was dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HANHAM and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 28 MEMBER : MR M SPILLANE (SENIOR MEMBER)

MR D MACLEAN (MEMBER)

HEARD : 19 NOVEMBER 2015 DELIVERED : 24 MARCH 2016 FILE NO/S : DR 380 of 2014 BETWEEN : ALISON MARY HANHAM

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning ­ Subdivision ­ Road width ­ Outline development plan ­ Generally in accordance with ­ Due regard ­ Orderly and proper planning

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 27(1) Sch 2 Pt 4

Planning and Development Act 2005 (WA), s 159, s 159(1)(c), s 241
Shire of Kalamunda Local Planning Scheme No 3, cl 3.2, cl 4.2.1, cl 6.2.2, cl 6.2.2.2, cl 6.2.9, Sch 11
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Respondent's decision refusing subdivision application is affirmed

Application for review is dismissed

Summary of Tribunal's decision:

Ms Alison Hanham sought approval from the Western Australian Planning Commission for a plan of subdivision at No 40 Hardey East Road, Wattle Grove. The subdivision proposed 26 lots of 350m² to 354m² for residential purposes.

The proposed subdivision included four new roads, three of which were supported by the respondent.
The fourth road was proposed as 12 metres wide along the north­western boundary.
The sole issue for resolution in the review was whether the proposed subdivision should be approved having regard to the width of the proposed 12 metre road on the north­western boundary of the proposed subdivision.
The Wattle Grove Urban Cell 9 Outline Development Plan depicted a 15 metre wide road being contained within the applicant's lot. The applicant proposed that 3 metres of the 15 metre wide road was capable of being provided when the adjoining landowner subdivided their land in the future and that it was only necessary that the applicant provide a 12 metre wide road on its land at this point in time.
Having heard all of the evidence and having considered the matter, the Tribunal saw no sound planning reason for departing from the Outline Development Plan for the purposes of this application. The Tribunal therefore affirmed the Planning Commission's decision and the application for review was dismissed.

Category: B

Representation:

Counsel:

Applicant : Mr K McKellar and Mr I McKellar (Acting as Agents)
Respondent : Dr S Willey and Mr G Bailey

Solicitors:

Applicant : N/A
Respondent : State Solicitor's Office

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

Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33
Macri and Western Australian Planning Commission [2013] WASAT 157
Macri v Western Australian Planning Commission [2014] WASC 153
Mainstay Group Pty Ltd v Moreland City Council [2005] VCAT 2189
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Aboriginal Affairs v Peko­Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379
Zampatti v Western Australian Planning Commission [2010] WASCA 149

REASONS FOR DECISION OF THE TRIBUNAL:

1 Prior to the hearing, the parties helpfully filed an Agreed Statement of Facts dated 9 October 2015 which the Tribunal adopts and summarises as follows:

Background

2 On 29 July 2014, Ms Alison Hanham (applicant) sought approval from the Western Australian Planning Commission (respondent) for a plan of subdivision at Lot 40 Hardey East Road, Wattle Grove (subject land).

3 On 24 October 2014, the respondent refused the application for the reasons:

1. The subject land is located within the [Western Australian Planning Commission (WAPC)] endorsed Wattle Grove Urban Cell 9 Outline Development Plan (ODP), which seeks to provide orderly and proper planning, and sets the overall design principles of the area. The application proposes under-width road reserves inconsistent with the ODP. Approval of the proposed road reserves would result in roads which will not connect seamlessly with the existing road network, specifically the connection with Fennell Crescent.

2. Under the ODP, the subject land is designated a R20 density code. The proposal is inconsistent with State Planning Policy 3.1 ­ Residential Design Codes (SPP 3.1) which specifies that for land within a R20 density code, the average lot size requirement is 450m². The application proposes an average lot size of 345m². Further, the application is inconsistent with Development Control Policy 2.2 ­ Residential Subdivision, which permits a variation to average lot size requirements under SPP 3.1, subject to criteria. The application proposes a variation greater than what is permitted under DC 2.2.

3. The application is inconsistent with State Planning Policy 5.4 ­ Road and Rail Transport Noise and Freight Considerations in land Use Planning (SPP 5.4) which seeks to protect people from unreasonable levels of transport noise. SPP 5.4 is relevant when new noise­sensitive development is proposed within the vicinity of an existing major road. In accordance with SPP 5.4, the proposal is defined as within the vicinity of Tonkin Highway and has not demonstrated compliance with the requirements of SPP 5.4.

4. Approval of the application would set an undesirable precedent for the further subdivision of the area inconsistent with provisions of SPP 34.1, SPP 5.4 and in the absence of a WAPC endorsed modification to the ODP.

4 Reasons (2) to (4) were resolved through an amended plan of subdivision ('the proposed subdivision' and the remaining issue (Reason 1) concerned a road immediately adjacent to the north-west boundary of the subject land (the proposed 12 metre road).

5 In or around the location of the proposed 12 metre road, the Wattle Grove Urban Cell 9 Outline Development Plan (ODP) depicts a 15 metre wide road to be contained within the applicant's lot.

6 The applicant proposes that 3 metres of the 15 metre wide road is capable of being provided when the adjoining landowner (Lot 164) subdivides their land in the future, so that it is only necessary that the applicant provide a 12 metre wide road reserve on its land at this point in time.

7 Following orders made by the State Administrative Tribunal on 15 May 2015, the respondent reconsidered its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (SAT Act) on 30 June 2015.

8 The respondent again refused the amended plan of subdivision for the following reasons:

1) Three metres of the proposed ultimate 15 metre wide road reserve adjacent to the north-west boundary of the subject land is outside of the application area and in the ownership of a party not a party to the application.

2) The subject land is located within the WAPC endorsed Wattle Grove Urban Cell 9 Outline Development Plan (ODP), which seeks to coordinate subdivision and the provision of infrastructure, provide orderly and proper planning, and sets the overall design principles of the area. The application proposes an under-width road reserve adjacent to the north-west boundary of the subject land (12 metres in lieu of 15 metres) which is inconsistent with the ODP.

^{3) The under-width road reserve will:}


A) Compromise the function and characteristics of the road;

B) Compromise the ability of planning authorities, utilities and local government to provide future infrastructure upgrades to the road which may be required;

C) Impact on the residential amenity of future dwellings adjacent to the road and future residents of the locality; and

D) Compromise the ability for planning authorities, utilities and local government to meet the objectives of Liveable Neighbourhoods, which includes to ensure acceptable levels of amenity, provide attractive streetscapes, enable roads and verges to perform their designated functions, and to provide a safe and pleasant environment for residents.


4) Approval of the application would set an undesirable precedent for the further subdivision of the area inconsistent with the endorsed ODP.

9 In the present proceedings the applicant seeks a review of that decision.

Facts

Subdivision application

10 On 29 July 2014 the applicant applied for subdivision of the subject land into 26 lots of 350m^² to 354m^²for residential purposes (the proposed subdivision).

11 Relevantly, the proposed subdivision was referred to the Shire of Kalamunda (Shire).

12 The Shire recommended at that time that the proposed subdivision be refused, for the reasons:

I. The subject land is coded R20 under the Wattle Grove Cell 9 Structure Plan. Accordingly, the subdivision is required to achieve on average lot size of 354m²; and

2. The proposed 11.5 metre road reserve and the southernmost 12 metre road reserve (Fennel Crescent) are not compliant with the Wattle Grove Cell 9 Structure Plan. Portions of Fennel Crescent have already been constructed over lots in the vicinity of the application area to the required 15 metre width.

13 Water Corporation and Western Power had no objection to the proposed subdivision subject to standard servicing conditions.

Subject land and surrounds

14 The subject land is 13,127m² and contains an existing dwelling in the northernmost corner of the lot.

15 It is located between Hardey East Road (north-eastern boundary) and Kelang Road (south-western boundary), with Lot 164 to the north­west and Lot 41 to the south-east of the subject land, neither of which have been subdivided.

16 The subject land and the surrounding area is subject to the ODP referred to earlier and the majority of the ODP area has been subdivided.

Outline Development Plan

17 The ODP was first adopted by the respondent on 16 March 2001 and was digitised on 2 March 2005.

18 The most recent version of the ODP depicts lot boundaries of both the subject land and the adjoining lots and shows a 15 metre wide road reserve along the north­western boundary of the subject land, within the lot boundary of the subject land.

19 The adjoining property at the north­western boundary, Lot 164 Hardey East Road, is not in the same ownership as the subject land and is not part of the proposed subdivision application.

Proposed road reserves

20 The proposed subdivision includes four new road reserves, three of which are supported by the respondent.

21 The fourth road reserve within the proposed subdivision which is not supported by the respondent is the 12 metre wide proposed road reserve along the north­western boundary of the subject land which is the subject of these proceedings.

Proposed 12 metre wide road reserve

22 A proposed 6 metre wide road pavement is depicted on the plan of proposed subdivision within the proposed 12 metre wide road reserve such that the centreline of the road pavement is located 7.5 metres from the boundary line of the proposed new lots.

23 Within the proposed 12 metre wide road reserve the applicant proposes:

a) 6.0 metre road pavement;

b) 1.5 metre wide verge on the north side of the road pavement;

c) 4.5 metre wide verge on the south side of the road pavement;

d) drainage, sewers, water mains, gas mains, underground power mains within the usual alignment corridor for such services.

24 The road, as depicted on the ODP, is proposed to be a through road which will connect Kelang Road and Fennell Crescent, both of which have 15 metre wide road reserves.

25 However, the road will be a no through road until either of the adjoining lots, Lot 164 or Lot 41, are subdivided.

26 Hardey East Road, which lies parallel with and to the north-east of Fennell Crescent, has a 20.1 metre wide road reserve.

Planning framework

27 The relevant planning framework includes:

a) Shire of Kalamunda Local Planning Scheme No 3;

b) Planning and Development (Local Planning Schemes) Regulations (WA);

c) Liveable Neighbourhoods (January 2009, Update 2);

d) Planning Bulletin 97 - Proposed Street Tree and Utility Planning Amendments to Liveable Neighbourhoods;

e) Development Control Policy 2.6 - Residential Road Planning Policy; and

f) Wattle Grove Urban Cell 9 Outline Development Plan.

Shire of Kalamunda Local Planning Scheme No 3 (LPS 3)

28 The subject land is zoned 'Urban Development' by LPS 3 and identified as a 'Development Area'.

29 The objectives of the Urban Development zone are provided at cl 4.2.l of LPS 3 which are:

• To provide orderly and proper planning through the preparation and adoption of a Structure Plan setting the overall design principles for the area.

• To permit the development of land for residential purposes and for commercial and other uses normally associated with residential development.

30 The purpose of Development Areas is provided at cl 6.2.2 of LPS 3:

(a) To identify areas requiring comprehensive planning prior to subdivision and development; and

(b) To coordinate subdivision, land use and development in areas requiring comprehensive planning.

31 With regard to Development Areas, cl 6.2.2.2 of LPS 3 provides:

Where a Structure Plan exists, the subdivision and development of land is to generally be in accordance with the Structure Plan and any associated provisions contained in Schedule 11.

32 Schedule 11 of LPS 3 provides specific provisions for Development Areas, and with regard to the Wattle Grove Urban Cell 9, cl 3.2 provides:

(Cell 9 ODP and subdivision and development) Subdivision and development (other than the development of a single residential dwelling on an existing lot) should be in accordance with the Cell 9 ODP.

33 As the ODP was adopted pursuant to a previous town planning scheme, cl 6.2.9 of LPS 3 is relevant and gives full force and effect to the ODP by stating:

Any Outline Development Plan duly approved under Town Planning Scheme No.2 is to have the full force and effect as if it was approved as an Outline Development Plan or Structure Plan under Town Planning Scheme No.3.

Any Outline Development Plan that, on the Gazettal date of this Scheme, is being prepared under Town Planning Scheme No.2, may continue to be prepared in the manner required under that Scheme, and following approval is to have the full force and effect as if it was approved as an Outline Development Plan or Structure Plan under Local Planning Scheme No.3.

34 The following paragraph was contained at paragraph 41 of the Agreed Statement of Facts dated 9 October 2015 and signed by both parties:

The operation of Clause 6.2.2.2 and 6.2.9 of LPS 3 will be affected by the introduction of Clause 27(1) of the Deemed Provisions of the Planning and Development (Local Planning Schemes) Regulations 2015, which [came] into effect on 19 October 2015.

a) Clause 27(1) of the Deemed Provisions (refer to Schedule 2 Part 4 of the Planning and Development (Local Planning Schemes) Regulations 2015) provide that:


A decision maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application

35 However, in the applicant's Submissions in Reply, paragraph 6(a) dated 19 November 2015, the applicant stated:

a) the application for the Respondent's approval was lodged before the new regulations came into effect and therefore they do not apply to assessment of the application Western Australian Planning Commission v CPP Pty Ltd (2006) WASAT 379.

36 However, the applicant then went on to say at paragraph (b) and (c):

b) in all events, by virtue of Section 138(2) of the Planning and Development Act 2005, the Respondent is required to have due regard to the provisions of a local planning scheme and which, in this case, includes:

i) Clause 6.2.2.2 and Schedule 11; Clause 3.2 of LPS 3

ii) the ODP as part of LPS 3


c) in paying due regard to LPS 3, and applying it in accordance with its terms, the Respondent cannot insist on strict compliance with the ODP, LPS 3 only requires general compliance.

Applicant's evidence and contentions

37 Evidence on behalf of the applicant was given by Mr Ian McKellar of Civil Technology who was the designer of the plan of subdivision and has had direct involvement over a number of years in the development of a significant number of other subdivisions.

38 In addition to his statement of evidence dated 13 November 2015, the applicant filed submissions dated 20 May 2015, 8 July 2015, 13 November 2015 and 19 November 2015, all of which have been considered by the Tribunal.

39 A summary of the relevant portions of Mr McKellar's evidence and the various submissions are as follows:

40 In his statement of evidence dated 13 November 2015, Mr McKellar, at paragraphs 4 to 7 under the heading 'Scope of Dispute', stated:

4. The dispute between the Applicant and the Respondent in this case is quite confined. It is all about the width of a proposed 12m wide road reserve which the Applicant proposes to dedicate along the north side boundary of the Applicant's land as part of its proposed 26 residential lot subdivision.

5. The Applicant says the proposed 12m wide road reserve is wide enough for the subdivision as contemplated. The Respondent wants a 15m wide road reserve. It is clear from the evidence that the Respondent wants a 15m wide road reserve because that is what is shown on the Wattle Grove Urban Cell 9 Outline Development Plan (ODP).

6. The Applicant does not dispute that a 15m wide road reserve is shown on the ODP generally in the location where the Applicant has shown a 12m wide road reserve on its application plan. Indeed, the parties are agreed on that point (see Paragraph 5 of the Agreed Statement of Facts).

7. It seems to me that the Respondent's position is that it wants the Applicant to set aside 15m of road reserve out of the Applicant's land merely because:


a. the north boundary of the road shown on the ODP happens to coincide (or thereabouts) with the proprietary boundary of the Applicant's land; and,

b. so the Respondent alleges, the ODP requires the whole of the 15m wide road reserve be set aside out of the Applicant's land.

41 It was clear from early submissions to the Tribunal, even before the reconsideration of the matter by the respondent, that the width of the proposed road reserve along the north­western boundary of the applicant's land was an issue.

42 In submissions to the Tribunal, dated 20 May 2015, the applicant had stated at paragraphs 11 to 13:

11. The Application Plan depicts 12/15ths of the ultimate 15 metre wide road reserve within the relevant part of the ODP area, and in that respect is entirely consistent with the ODP. The Road Reserve is not 'under-width', as alleged by the Respondent, as the further 3 metres can readily be dedicated in the future as and when the need arises, for (and upon) the subdivision of adjacent Lot 164.

12. The creation of the road verge on the north-west side of the Road Reserve has no nexus with the fact of the subdivision of Lot 40. The lots in the application area are suitably serviced with part only of the ultimate 15 metre road reserve, provided that the pavement is offset to the north-west within the 12 metre wide part) so as to accommodate being centrally placed in the ultimate 15 metre road reserve. When Lot 164 is subdivided, that subdivision can readily provide a front verge for its own lots.

13. The Road Reserve serves as the only access road for internal lots created on both Lot 40, and for the future internal lots created upon subdivision of Lot 164. Both Lot 40 and Lot 164 are equal size, therefore the burden of providing the road should be distributed amongst both landowners as equitably as possible.

43 Under the heading 'Compliance with the ODP', at paragraphs 16 and 17 of his statement of evidence dated 13 November 2015, Mr McKellar stated:

16. I am the designer of the application plan. I was fully aware of the ODP and its provisions at the time I designed the application plan. In particular, I was aware of Clause 6.2.2.2 of the Shire of Kalamunda's Town Planning Scheme No. 3 which requires a subdivision to be 'generally in accordance with' an operative outline development plan.

17. When designing the application plan, I took into account that on many prior occasions:


a. I have designed residential subdivisions where part only of an ultimate road reserve has been dedicated by one applicant for approval, that subdivision has been approved by the Respondent, the part road has been brought into effect (i.e. dedicated to the use by the public) and the balance of the road reserve has been dedicated as part of a later neighbouring subdivision;

b. I have designed, in a residential subdivision, a road reserve width down to 12m (or even less on some occasions) and those road widths have been approved by the Respondent and the associated services and pavement assets being approved by the relevant local government under s.170 of the Planning and Development Act 2005;

c. I have designed a final subdivision not strictly in accordance with a subdivision guide plan, outline development plan or a structure plan and those subdivisions have been approved by the Respondent.

44 At paragraphs 35 to 44, Mr McKellar addressed the evidence of Ms Uma Rajaram, the principal development engineer at the Shire of Kalamunda and a witness for the respondent, whose evidence Mr McKellar believed misconceived the true nature of the application before the Tribunal, and stated:

35. At no time since the application for permission to subdivide was lodged with Respondent nor at any time during these proceedings has the Applicant sought, alleged or proposed that the application involved a 'reduction of a road reserve' shown on the ODP.

36. Properly understood, the Applicant proposes the following:


a. to dedicate a proposed public road generally in accordance with the ODP;

b. since subdivision in the ODP area is incomplete, that a sufficient road to provide adequate access to only the Applicant's subdivision be the road that is so dedicated;

c. that a sufficient road for just the applicant's subdivision (i.e. before the ODP is complete) is a 12m wide road.


37. At no time has the Applicant alleged, nor is it the Applicant's case, that a 12m wide road would be a sufficient width of road when the ODP is complete.

38. So, where the witness Ms. Rajaram gives evidence in paragraphs 8 to 18 of her witness statement that a 15m wide road reserve is needed, I do not necessarily disagree with that proposition. A 15m wide road may very well be needed when further subdivision and road connectivity occurs and the ODP becomes complete. As Ms. Rajaram states at paragraph 19, the ultimate reserve could be 14 to 16m. But the final road reserve width is a matter for a later subdivision at a later date. In my view, 15m width is the most likely final outcome, given the width shown on the ODP.

39. The fact is:


a. the ODP is not complete;

b. in the interim, a 12m wide road reserve is sufficient to provide:


i. access to the lots as proposed; and,

ii. services (on a standard alignment) to the lots as proposed.

40. In respect of point ii. in paragraph [39] above, the Respondent has accepted, in the Agreed Statement of Facts at paragraph 31.d) that the services are proposed 'in the usual corridor'. I would clarify that to say, the 'usual corridor' means for an ultimate 15m wide road reserve. The parties are agreed on that point.

41. In my view, provided that the proposed 12m wide road reserve is developed in such a way such that both the services are laid in the 'usual corridor' and the proposed pavement is offset so as to suit an ultimate 15m wide reserve then the road is 'generally in accordance with' the ODP, but it is a road that is only partly complete.

42. The completion element, namely the creation of a road verge on the north-west side is not needed to service the lots as proposed in the present application. Numerous examples of similar situations that have gone before and which have been approved by the Respondent where part only of the ultimate road reserve is dedicated on the first subdivision in an area are set out in paragraphs 9 to 13 of the Agreed Statement of Facts.

43. I note that the adjoining landowners have no current application before the Respondent to assess (otherwise the Respondent would have had a duty to the Applicant to bring it forward before the Agreed Statement of Facts was prepared). The Application is therefore not in conflict with any other current subdivision proposal.

44. In my view, providing a 15m wide road reserve is way in excess of what is sufficient for the Applicant's subdivision as proposed. To require a 15m wide road reserve now is beyond the intent of the ODP provisions in TPS 3 (because it militates strict compliance with the ODP) and would only serve to provide a kerbside verge to an excessive width and that is not needed until later subdivision occurs on the north side of the road. As such, a full 15m wide road reserve lacks, in my opinion, nexus with the fact of the proposed subdivision the subject of the application.

45 At paragraphs 54 to 58 of his evidence, Mr McKellar addressed the evidence of Mr Gordon, the respondent's planner, and at paragraphs 54 to 58 stated:

54. What I would like to point out however, is that (and is made by [sic] clear [by] Mr Gordon's evidence) the Respondent is treating the alignment of original proprietary boundaries as being material to the Respondent's thinking as to how an area should be planned out and executed. That should not be the case. Whilst the Applicant is confined to execute a subdivision within her boundaries, the ultimate planning in the ODP extends beyond these boundaries and as such, the exact position of the Applicant's boundary is not germane at all to the intent of the ODP in question.

55. In my view, where an original proprietary boundary happens to lie is not a planning consideration in terms of the objects of the ODP and achieving subdivision and development over the wider area generally in accordance with it. Indeed, many an outline development plan proposes development where proprietary interests must join in to achieve the planning outcome (but which is simply not the case in order for this application to be approved).

56 I also disagree with Mr. Gordon's statement at paragraph 52 of his witness statement that the application is a departure from the ODP.

57. In my view, a 'departure' would be a case where the proposal was not 'generally in accordance with' the ODP. An example of a 'departure' might be a case where development of the ODP area (to the intent of the ODP) relied on a road shown on the ODP and a proposal was put forward by an applicant to develop strata title units on the land with small private roads and the public road was deleted entirely the effect of which would prevent the balance of the outline development plan area from being brought into effect or something similar to that. An application needs to truly part company with the general intent of the ODP before it is a 'departure' (and which is not the case with this application).

58. This application is clearly in accordance with the ODP.

46 Finally, in the applicant's Submissions in Reply dated 19 November 2015, at paragraph 9, the applicant clarified its contention by stating:

… The applicant merely contends that its application is, and can only be, confined to its land and that the proposed 12 m of road reserve is confined to its land. The Applicant contends that, on the evidence, 12m is sufficient road reserve to service the proposed subdivision but what happens to become the ultimate road reserve is a matter for another day, as applications come forward on other land and as the ODP nears completion.

47 Mr McKellar also referred to a number of previous subdivisions where he claimed the respondent had approved similar arrangements as to what was proposed here.

48 Both Mr McKellar and Mr Gordon, the principal planning witness for the respondent, addressed each of those subdivisions which the Tribunal will comment on later.

The respondent's evidence and contentions

49 Mr Jason Gordon, a senior planning officer with the Department of Planning Appeals Division, gave planning evidence on behalf of the respondent. Mr Gordon's relevant experience includes, amongst other things, the assessment and determination of residential subdivision within the metropolitan region, including in the City of Bayswater, Belmont, Cambridge, Cockburn, Gosnells, Joondalup, Kalamunda, Stirling, Swan and Wanneroo which have involved application and interpretation of the respondent's Statements of Planning Policy, Liveable Neighbourhoods and Development Control Policies.

50 The relevant portions of Mr Gordon's evidence are:

17. With regard to the road reserve in dispute, the ODP provides a high level of precision, detail and certainty. In my view there is no question regarding the intended width of the road or its intended location.

18. The ODP shows that a 15 metre wide road reserve should be provided entirely within the boundaries of the subject land[.]

19. The proposed road reserve width of 15 metres is consistent with many of the local roads proposed and already constructed within the ODP area which have similar characteristics to the road subject of this matter[.]

Proposed 12 metre wide road reserve

20. The proposed subdivision shows that the road would be designed in the following way … :


(a) 6 metre wide road pavement;

(b) 4.5 metre wide verge on the southern side of the road; and

(c) 1.5 metre wide verge on the northern side of the road.


21. If, hypothetically, the 6 metre wide road pavement were to be aligned centrally to the proposed 12 metre wide road reserve, it would result in a 3 metre wide verge on either side of the road pavement.

…

51 Under the heading 'Assessment' at paragraph 22 of his statement, Mr Gordon outlined in some detail the policies which guide decision­makers with regard to appropriate road reserves, namely:

(a) Liveable Neighbourhoods('LN') …; and

b) Development Control Policy 2.6 ('DC 2.6')[.]

52 At paragraph 27 of his statement, he referred to Planning Bulletin 97 titled 'Proposed Street Tree and Utility Planning Amendments' (PB 97).

53 At paragraphs 24 to 38, Mr Gordon went through the various obligations, considerations and requirements the Department go through when making a decision as to the appropriate road reserve width, and at paragraphs 56 to 69 observed:

56. It is important to consider the cumulative impact of narrow road reserves which are not fit-for-purpose in metropolitan Perth and the burden that will place on local authorities, state agencies and the community with regard to provision of road infrastructure and enhancements, utilities, the function of the road and its amenity.

…

60. A 15 metre wide road reserve for a local road of this nature is a typical requirement which is applied state-wide by the Respondent and is consistent with the expectations of the development industry, local government, State Government, utility providers, and the public.

…

65. A 12 metre road reserve will require the following elements of the road to be built to minimal standards and clearances, and may result in those functions of the road being compromised or being unable to be provided to accepted standards:


(a) road carriageway;

(b) the provision of car parking;

(c) pedestrian and cyclist pathways;

(d) provision of utility services;

(e) street lighting; and

(f) landscape/amenity - including street trees.


…

67. The proposed 12 metre road reserve:


(a) will compromise the amenity for residents and users of the road:

(i) space for landscaping and street trees is reduced from the standard width, and may result in street trees not being able to be provided at the typical density or size, due to alignment and setback requirements;

(ii) reduced verge widths will reduce the amenity of the street and change the character of the streetscape by bringing dwellings closer to the road pavement.


(b) will compromise the function of the road:

(i) upgrades to the road pavement in the future, such as formalised on street parking or traffic calming devices may not be able to be provided, or provided at a lesser standard;

(ii) upgrades to the pedestrian or cyclist facilities such as additional footpaths, dual use paths or cycle lanes may not be able to be provided, or provided at a lesser standard;

(iii) alignments and clearances to elements of the road reserve will be minimal


(c) will jeopardise the ability of relevant authorities to adequately provide for the present and future need of the community as the flexibility for future upgrades is reduced;

(d) will compromise safety for road users as alignments and clearances to elements of the road reserve will be minimal;

(e) is not supported by the policy framework.


68. If a 15 metre wide road reserve were to be provided:

(a) the elements of the road will be able to be provided on standard alignments;

(b) amenity for residents and users of the road will be consistent with that intended by the policy framework, to include space for street tress and adequate setbacks;

(c) will provide adequate flexibility for the provision of the present and future needs of the community;

(d) is supported by the policy framework; and

(e) is consistent with other local roads of this nature in the ODP area and the metropolitan region.


69. Approval of a 12 metre wide road reserve will prejudice the intent of the ODP and undermine its status as a document to be relied upon by landowners, local and State Government, agencies and authorities in the planning of the locality.

54 Ms Rajaram, the principal development engineer at the Shire of Kalamunda, referred to earlier, also gave evidence on behalf of the respondent and provided a witness statement dated 6 November 2015, the relevant portions of which are:

10. The Shire's requirement for a 15 metre wide road reserve would provide for:

i. 6 metre sealed road pavement;

ii. 4.5 metre wide verge on both sides of the road pavement incorporating a footpath or shared path and street trees on either side; and

iii. Drainage, sewers, water mains, gas mains, underground power mains to be placed within the usual alignment corridor for such services.


11. The surrounding road network, Kelang Road and Fennel Crescent which have the same function as the subject road have 15m wide road reserves which is consistent with the ODP.

…

13. Streetscape development creates a strong physical image for the Shire and has aesthetic, social and economic value for the community.

14. Access streets must have a footpath or shared path on one side. The Shire requires a minimum of two metre wide footpath.

15. Verges need to be wide enough to accommodate trees in locations clear of services. The Shire's long term planning for streetscape improvements involve street trees within all access roads in Wattle Grove.

16. The road functions as an Access Street with an indicative traffic volume range of approximately 1000 vehicles per day from the subject.

17. Traffic volume, speed and types of vehicles play a very important role in determining the requirement for lane widths. Larger vehicles such as garbage trucks for instance may require wider travel lanes. Reduced lane widths reduce the variation in lateral tracking of vehicles which in turn may increase pavement wear and damage. When a traffic lane is narrowed, the width of a vehicle wheel track is reduced, implying that the moving wheels are restricted to a more compact space eventually causing a reduction in pavement fatigue life.

18. A 6 metre pavement allows a car to pass a parked car or a moving car without much obstruction. Wider road width means more space for drivers getting into and out of their vehicles which reduces the risk of an opening car door hitting another vehicle.

19. Road Reserve allocation for Utility Service Providers in narrow road reserves is nominally 14.0 - 16.0 metres wide[.]

20. In conclusion, it is considered that the width of the road reserve proposed by the applicant is inconsistent with the adopted ODP and will not provide the required space for services and would detract from the overall amenity of the streetscape.

55 In closing submissions dated 19 November 2015, the respondent stated:

11. Structure plans and ODPs provide a vehicle or tool for managing the progressive development of land for urban and related purposes ­ particularly where the land is fragmented across multiple land holdings.

12. Unless there is a sound reason not to, it is not a controversial statement to suggest that ODPs should, in the ordinary course, be followed. This is because ODPs are a public instrument that sets out how a parcel or parcels of land will be developed conjointly. People make investment decisions based on the content of ODPs plans and therefore rely on that content being followed when implementing the ODP. Of course, many ODPs allow for some variation. We say that the principles that underpin an ODP [are] equity and fairness. That is, the ODP is designed in a way so that affected landowners shoulder a more or less equal burden in providing infrastructure. In this instance there is a requirement to contribute to infrastructure costs across the ODP but each landowner must provide the relevant roads within the ODP. That infrastructure is not a shared ODP item.

13. The requirement to be only 'generally in accordance with the ODP' is to give some flexibility so as to avoid situations where minor changes (or even major changes which are deemed to have no impacts) are permissible at the subdivision stage without having to formally amend the overarching ODP.

Previous subdivisions

56 As referred to earlier, the applicant raised a number of previous subdivision approvals by the respondent, details of which were set out in the Statement of Agreed Facts.

57 Mr Gordon, on behalf of the respondent, commented in respect of each of the examples given and explained or distinguished the approvals in each case.

58 In submissions dated 13 November 2015 at paragraph 5, the applicant refers to the evidence contained in paragraph 44 of Mr McKellar's witness statement outlined earlier and states:

… Mr McKellar states that 'to require a 15 metre wide road reserve now is beyond the intent of the ODP provisions in PTS 3 … and would only serve to provide a verge that is not needed until later subdivision occurs.' That is, the facts before the Tribunal are that any additional width of verge on the north side of the Applicant's proposed 12 metre road would have no relationship whatsoever to this application. Numerous prior examples of occurrences of a similar nature where part only of a road reserve is dedication in a subdivision are included in the Agreed Statement of Facts (paragraphs 9 to 13) and referred to in the evidence of Mr. McKellar.

59 At paragraphs 52 and 53 of his statement of evidence, Mr McKellar explained the context in which he raised those 'prior examples' and stated:

52. … My purpose for seeking inclusion of those earlier subdivisions was to simply demonstrate numerous examples of similar situations that have gone before and which have been approved by the Respondent …

53. I did not intend to elevate the prior subdivision examples given in paragraphs 9 to 13 of the Agreed Statement of Facts any higher than that.

Section 159 of the Planning and Development Act 2005 (WA)

60 At paragraph 13 of its submissions dated 20 May 2015 set out above, the applicant had submitted:

13. The Road Reserve serves as the only access road for internal lots created on both Lot 40 and for the future internal roads. Lots created upon subdivision of Lot 164, both Lot 40 and Lot 164, are of equal size, therefore the burden of providing the road should be distributed amongst both landowners as equitably as possible.

And at paragraphs 27 to 29 stated:

27 … the Applicant submits that, in a legal sense, there can be no 'adverse effect' on the adjoining landowner by shifting 3/15ths of the Road Reserve onto Lot 164.

28. That is because section 159 of the Planning and Development Act 2005 operates to ensure that earlier subdividers that create roads that abut an adjoining later subdivision can collect part of the cost of dedicating that road (including the value of the land) from that later subdivider. Essentially, the landowner of Lot 164 will have an obligation to contribute to half of the cost of the ultimate Road Reserve and pavement. Therefore, the contribution of a 3 metre strip for the length of the ultimate Road Reserve would offset part of the liability of the owner of Lot 164 (and the net commercial effect on the landowner of Lot 164 is nil).

29. In fact, the Road Reserve as proposed provides for a much more equitable outcome in a practical sense, as it is often the case that later subdividers resist application under section 159 necessitating costs of enforcement and which could erode the earlier subdivider's claim.

61 However, in contrast to that contention, the respondent at paragraphs 24 to 28 of its closing submissions dated 19 November 2015 submitted:

24. Finally, the Applicants in their submissions to the Tribunal on 20 May 2015 (at [27] and [28]) submit that the operation of s 159 of the Planning and Development Act 2005 (WA) will provide a neutral outcome for the landowner of Lot 164 if a 12 metre road is provided. In fact that is not the case.

25. The purpose of s 159 is to enable the original subdivider to recover from the latter subdivider one half of the costs of providing the relevant road.

26. If the Tribunal allows this arrangement to be put in place, the claim against Lot 164 under s 159 will remain.

27. In this instance if the Tribunal allows the Applicant to provide a 12 metre road with the 3 metres to be provided at a latter point by the owner of Lot 164, the following will be the result:


(a) the Applicant, [sic] will have a claim against Lot 164 for half of the cost of providing the 12 metre road reserve;

(b) that is, Lot 164 can be compelled under s 159 to contribute the cost of a 6 metre road (and the Applicant has already signalled an intent to do so);

(c) however, in addition, upon subdivision Lot 164 will then have to provide the additional 3 metres for the road to complete the 15 metre road reserve.

(d) but, under s 159, Lot 164 has no claim against the Applicant in relation to that 3 metres.


28. The practical effect is not cost neutral. In fact if the Tribunal finds for the Applicant Lot 164 will bear 60% of the cost of the road with the Applicant bearing 40%. We say that is manifestly unfair. The only way that a 50% sharing of the cost of the road is achieved is for the entire road to be constructed by the Applicant who has the benefit of s 159 as the 'original subdivider'.

Issue for determination

62 The issue for determination has been clear for some time. Indeed, Order 2 of the Tribunal's orders of 15 May 2015 identified it as 'the sole determinative issue between the parties namely whether the application should be approved having regard to the width of the road on the north western boundary of the site.'

63 At paragraph 4 of his statement of evidence under the heading 'Scope of the Dispute', Mr McKellar stated:

The dispute between the Applicant and the Respondent in this case is quite confined. It is all about the width of a proposed 12m wide road reserve which the Applicant proposes to dedicate along the north side boundary of the Applicant's land as part of its proposed 26 residential lot subdivision.

64 The respondent likewise, at paragraph 1 of its Outline of Submissions dated 13 November 2015, under a similar heading stated:

The sole issue for resolution in this matter is whether the proposed subdivision should be approved having regard to the width of the road in the north-west corner of the subdivision application.

Legal principles

Generally in accordance with

65 As set out above, cl 6.2.2.2 of TPS 3 provides:

Where a structure plan exists, the subdivision and development of land is to be generally in accordance with the structure plan and any associated provisions contained in Schedule 11. (Tribunal's emphasis)

66 Mr McKellar confirmed at paragraph 16 of his statement of evidence set out earlier:

I am the designer of the application plan. I was fully aware of the ODP and its provisions at the time I designed the application plan. In particular, I was aware of Clause 6.2.2.2 of the Shire of Kalamunda's Town Planning Scheme No. 3 which requires a subdivision to be 'generally in accordance with' an operative outline development plan.

67 The respondent, in its Outline of Submissions dated 13 November 2015 at paragraphs 7 to 9 under the heading 'The proposed subdivision is not consistent with Local Planning Scheme 3 (''LPS 3'')' addressed the words 'generally in accordance with' in cl 6.2.2.2 of TPS 3.

Due regard

68 Both parties also agreed that the decision­maker needed to have 'due regard' to a structure plan, in this case the ODP. The respondent confirmed that at paragraphs 14 to 17 of its Outline of Submissions dated 13 November 2015, at paragraph 14, stating:

Clause 27(1) Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provides:

A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.

69 As noted earlier, although both parties agreed at paragraph 41 of the Agreed Statement of Facts that the LPS Regulations would have effect, it is noted that at paragraph 6(a) of the applicant's Submissions in Reply, dated 19 November 2015, the applicant stated:

a) the application for the Respondent's approval was lodged before the new regulations came into effect and therefore they do not apply to assessment of the application Western Australian Planning Commission v CPP Pty Ltd (2006) WASAT 379.

70 The Tribunal does not agree with this contention. In Miller and City of Stirling [2007] WASAT 247; (2007) 56 SR (WA) 128, the Tribunal dealt with the earlier decision, Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 relied on by the applicant and found at [35]:

It is well established in Australian planning law that a development or subdivision application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decision-maker or on review/appeal by a court or a tribunal such as SAT. The New South Wales Court of Appeal (Giles JA with whom Sheller and Santow JJA agreed) stated the law in The Dubler Group Pty Ltd v The Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178 (The Dubler Group), at [20], as follows:

'The power to amend an environmental planning instrument by a subsequent environmental planning instrument is undoubted, see s 74 of the [Environmental Planning and Assessment Act 1979 (NSW) (EP & A Act)]. A development application [which includes, in New South Wales, a subdivision application; see EP & A Act s 4(1)] is determined on the law as it stands at the time of the determination, including when it is determined on appeal to the [Land and Environment Court, which exercises equivalent jurisdiction to SAT in planning review/appeal proceedings]: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614; (1975) 31 LGRA 416; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630; (1980) 42 LGRA 111.'

71 In its Submissions in Reply of 19 November 2015, the applicant then went on to say at paragraphs 6(b) and 6(c):

b) in all events, by virtue of Section 138(2) of the Planning and Development Act 2005, the Respondent is required to have due regard to the provisions of a local planning scheme and which, in this case, includes:

i) Clause 6.2.2.2 and Schedule 11; Clause 3.2 of LPS 3

ii) the ODP as part of LPS 3


c) in paying due regard to LPS 3, and applying it in accordance with its terms, the Respondent cannot insist on strict compliance with the ODP, LPS 3 only requires general compliance.

(Tribunal's emphasis)

72 At paragraph 18 of the respondent's Outline of Submissions dated 13 November 2015, they referred the Tribunal to the case of Zampatti v Western Australian Planning Commission [2010] WASCA 149 at [137] where Kenneth Martin J considered the meaning of 'due regard' in the context of s 241 of the (PD Act) and found that a flexible weighing process in overall context (as explained by Mason J in Minister for Aboriginal Affairs v Peko­Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24, 41 (Peko­Wallsend)) was the applicable approach required.

73 In the recent decision of Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [40] ­ [48] the Tribunal considered the effect of the new LPS Regulations on cl 6.2.2.2 of LPS 3 and stated at [40] ­ [47]:

Clause 6.2.2.2 of LPS 3 states that, where a structure plan exists, 'thesubdivision and development of land is to generally be in accordance with the Structure Plan …'. However, the requirement in cl 6.2.2.2 of the Scheme for development to be 'generally … in accordance with' a structure plan is inconsistent with cl 27(1) of the deemed provisions for local planning schemes in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) (deemed provisions) which came into force on 19 October 2015 under s 256(1) of the PD Act.

Section 256(1) and s 256(5) of the PD Act state as follows:


(1) The Minister may make regulations prescribing provisions that deal with any or all of the following ­

(a) carrying out the general objects of local planning schemes;

(b) any matter set out in Schedule 7.

…

(5) The regulations must designate each provision prescribed under subsection (1) as ­

(a) a model provision, being a provision to which section 257A applies; or

(b) a deemed provision, being a provision to which section 257B applies.

Regulation 10(4) of the LPS Regulations states as follows:

The provisions in Schedule 2 are deemed provisions, being provisions to which section 257B of the Act applies, and are applicable to all local planning schemes, whether or not they are incorporated into the local planning scheme text[.]

Furthermore, reg 8(1)(c) of the LPS Regulations expressly states that:

The documents that comprise a local planning scheme are the following ­

…


(c) if any of the provisions set out in Schedule 2 have not been incorporated into the local planning scheme text ­ those provisions[.]
Section 257B(2) and s 257B(3) of the PD Act state as follows:

(2) Deemed provisions, as amended from time to time, have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.

(3) If a deemed provision that has effect as part of a local planning scheme is inconsistent with another provision of the scheme, the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect.


Clause 27(1) of the deemed provisions states as follows:

A decision­maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.

In consequence of s 257B(2) of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations, cl 27(1) of the deemed provisions has effect as part of LPS 3. In consequence of s 257B(3) of the PD Act, as the requirement of cl 27(1) of the deemed provisions (for the Council ­ and the Tribunal on review ­ to have 'due regard to' the LSP when deciding the development application the subject of this proceeding) is inconsistent with the requirement of cl 6.2.2.2 of LPS 3 (that the development must be 'generally … in accordance with' the LSP), cl 27(1) of the deemed provisions prevails over cl 6.2.2.2 of LPS 3 and to the extent that cl 6.2.2.2 of LPS 3 requires development to be 'generally … in accordance with' the LSP, it is of no effect. In short, when deciding the development application, the Tribunal is required to have due regard to, but is not bound by the LSP, and the Scheme does not require that the proposed development is to be generally in accordance with the LSP.

Clause 67 of the deemed provisions, which, under s 257B(2) of the PD Act and reg 8(1)(c) and reg 10(4) of the LPS Regulations, has effect as part of LPS 3, states, in part, as follows:


In considering an application for development approval the local government [and the Tribunal on review] is to have due regard to the following matters to the extent that, in the opinion of the local government [or the Tribunal], those matters are relevant to the development the subject of the application ­
(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

(b) the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;

…

(h) any structure plan … that relates to the development;

…

74 In the present circumstances therefore where the Tribunal is dealing with a subdivision approval in an area covered by a structure plan that has been approved by the Commission, the correct test pursuant to cl 27(1) of the deemed provisions is that the Tribunal must have 'due regard to, but is not bound by' the ODP when deciding the matter.

Orderly and proper planning

75 Clause 4.2.1 of TPS 3 states that one of the objectives of the Urban Development zone is:

To provide orderly and proper planning through the preparation and adoption of a structure plan setting the overall design principles for the area.

76 In Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 at [87] ­ [88], the Tribunal, in commenting on the concept of both orderly and proper planning, stated:

As is well understood, the public planning process includes resolving these last­mentioned issues so that the legitimate aspirations found in the planning framework may be translated into reality. This is at the heart of orderly and proper planning. Thus, we respectfully do not accept Mr Caddy's view 'that an outcome in accordance with the policy is [not] possible'.

In the circumstances then, this case is not about the decision­maker and this Tribunal 'inflexibly' applying planning policy. It is more a case where the factors and extensive material put forward by the applicant to date, which have been carefully considered, do not negate the well­recognised presumptive authority of soundly based, transparent and directly applicable planning policies aimed at a wider public interest and reflected in the planning framework. As was recognised by this Tribunal in Hawkins and City of Joondalup [2008] WASAT 64 at [38] ­ [39]:


… it is axiomatic that modern planning laws contain many restrictions 'which they have long imposed upon an owner's right to develop and use land without regulation (including the development which is most financially beneficial)': Tolocorp Pty Ltd v Noosa Shire Council [2007] 3 QPELR 362, at 365, per Fryberg J. Similarly:

[T]he bundle of rights involved in a fee simple are greatly modified by social considerations imposed under planning laws and by many restrictions upon ownership under local government laws, health and taxing laws.

CBC Properties Limited v Parramatta City Council, (unreported, [BC9202770], Land and Environment Court of New South Wales, Bannon J, 20 November 1992), emphasis added. So too, Jacobs J in Church of England Collegiate School of St Peter v St Peters Town Council (No 2) (1990) 71 LGRA 309 at 312 (emphasis added):

Planning law is essentially for the protection of the public interest and restricts private rights only to the extent necessary to protect the public interest as expressed in the [planning framework].

77 In referring to that statement with approval, Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [180] ­ [181] stated:

180. The State Administrative Tribunal has observed that 'at the heart of orderly and proper planning' is a public planning process which permits the assessment of individual development applications against existing planning policies so that the legitimate aspirations found in the planning framework may be translated into reality.¹⁰⁷

181. However, there is no reason in principle why planning legislation and instruments will be the only matters warranting consideration in determining what is a 'proper' planning decision. The matters which warrant consideration will be a questions of fact to be determined having regard to the circumstances of each case.¹⁰⁸


[¹⁰⁷Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 [87] (Senior Member McNab and Senior Sessional Member De Villiers]

[¹⁰⁸cf Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276]

78 In another Tribunal decision, Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 Barker J observed at [52] ­ [54]:

In Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd & Anor (1996) 90 LGERA 68, Cole JA held in the New South Wales Court of Appeal at 70 ­ 71 as follows:

'It is not, however, any part of the function of [a development] authority (or the Court when acting in substitution for the authority) … to be concerned, as his Honour was, with the prospect that the holder of the land adjoining the proposed development could or should be expected to make adjustments to its land use to accommodate the new development.'

It is fundamental to orderly and proper planning that a proposed development should generally provide appropriate mitigation for its impacts within its site and not require adjoining developments to 'make adjustments' (to borrow Cole JA's words) or limit the development potential of adjoining land below that reasonably contemplated by the zoning and planning controls. However, there are exceptions to this general principle, for example where the applicable zoning and planning controls reasonably contemplate certain impacts across boundaries (see, for example, Big Country Australia Pty Ltd and Shire of Serpentine­Jarrahdale [2006] WASAT 10 at [55] ­ [59]) or use of public land or facilities either with or without payment (see, for example, Randall and Town of Vincent [2005] WASAT 129 at [128] ­ [129]).

Sunbay Developments contends, in essence, that the reasonable development potential of the adjoining lots should be constrained so as to permit its development to be approved. This would allow what is, on the evidence, an overdevelopment of the site by requiring underdevelopment of adjoining land. This approach is inconsistent with orderly and proper planning and the overall intent of the ODP that the land should be progressively developed for residential purposes.

Consideration

79 It is clear from the evidence that the ODP under consideration contemplates a 15 metre wide road on the north­western boundary of the subject land and the primary differences between the parties appear to be one of timing and due to that timing where the liability to provide the road reserve should fall.

80 Mr McKellar stated at paragraph 38 of his witness statement:

… The final road reserve width is a matter for a later subdivision at a later date. In my view, a 15 metre width is the most likely final outcome, given the width shown on the ODP.81 Further clarification of this was contained at paragraph 9 of the applicant's Submissions in Reply, dated 19 November 2015, which stated:

… The Applicant contends that, on the evidence, 12m is sufficient road reserve to service the proposed subdivision but what happens to become the ultimate road reserve is a matter for another day, as applications come forward on other land and as the ODP nears completion.

82 The respondent on the other hand sees the applicant's proposal as a departure from the ODP and at paragraph 52 of his statement of evidence Mr Gordon stated:

The proposed departure would prejudice a major component of the ODP, being the function and characteristics of the road network and in my experience it would be unusual for the Respondent to accept a departure from an ODP in those circumstances.

83 At paragraphs 24 and 25 of its Outline of Submissions dated 13 November 2015, the respondent under the heading 'Departing from the ODP is not appropriate in the context of this case' stated:

24. The proposed departure from the structure plan is not sufficiently confined so as to warrant approval of the subdivision application having due regard to the ODP and the facts and circumstances of this case.

25. The following facts and circumstances favour adherence with the road width indicated in the structure plan:


a) The proposed road reserve does not offer road verges of sufficient width to accommodate all transport requirements, street trees, utilities and services now and into the future and would compromise the function and characteristics of the road network.

b) The proposed road reserve does not provide for sufficient flexibility to accommodate potential upgrades required in the future.

c) The proposed road reserve would detract from the overall amenity of the streetscape.

d) A 15 metre road is required to service the locality and users of the road who will require access to sufficient transport requirements, street trees and footpaths.

e) There is no positive planning reason for the decrease in the width of the road.

f) The road reserve would be a different width to its connecting roads and the width of other thoroughfare roads in the locality.

g) Approval of the proposed road could establish an undesirable precedent for the metropolitan region.

84 And under the heading 'Whether Lot 164 may later be required to cede 3 metres of road reserve' at paragraphs 26 to 28, the respondent stated:

26. The applicant does not contend that 3 metres of the ultimate road reserve should be provided by Lot 164. The applicant does not seek to go outside the boundary of its application area.

27. However, the structure plan provides that a 15 metre road is necessary and other roads in the vicinity of the sit are 15 metres.

28. The underlying premise of a structure plan is to provide certainty about the nature of the proposed use, subdivision and/or development of the area to both third parties and to developers. This enables people investing in land and/or buying into an area (as well as relevant government agencies) to know that an area is under development and that the development will proceed in a certain way. A fundamental part of this consideration is the placement of roads (including their width) and other infrastructure.

85 In its Submissions in Reply, dated 19 November 2015, the applicant addressed that matter and stated at paragraphs 8 to 12 of its submission:

8. The Applicant submits that the Respondent's submissions in paragraphs 24 and 25 of its submissions wrongly presume that the Applicant is suggesting that a 12m wide roads [sic] reserve is the ultimate. The Applicant is not suggesting that at all.

9. In paragraph 26 of its submissions, the Respondent has erred somewhat as to what the [Applicant] contends. The Applicant merely contends that its application is, and can only be, confined to its land and that the proposed 12m of road reserve is confined to its land. The Applicant contends that, on the evidence, 12m is sufficient road reserve to service the proposed subdivision but what happens to become the ultimate road reserve is a matter for another day, as applications come forward on other land and as the ODP nears completion.

10. The Respondent elevates the ODP to the level of an instrument that 'promises' that a very specific outcome will result.

11. The ODP simply does not have that effect. The ODP makes no promise to any particular landowner that a road will even be dedicated in adjacent land, nor does it promise any later subdividing landowner that it will be dedicated to the ultimate width nor does it promise that the road will be constructed to any particular elevation or to any type of pavement specification. By the terms of TPS 3, later subdividers simply do not get a guilt edge guarantee from the Cell 9 ODP of a very specific outcome.

12. A later subdividing landowner, if it is required to give up road land, must simply decide whether it wishes to bear that sort of burden to see his or her land subdivided. That is a commercial consideration for the later subdivider alone Lloyd v Robinson (1962) 107 CLR 142. The commercial position of a later subdivider is not a planning consideration at all and this Tribunal should not concern itself about it.

86 As contended by the applicant the Tribunal accepts that it is not uncommon in some circumstances at subdivision to demand part of a road reserve only that is sufficient to serve the lots created by the relevant application, and some of the examples of previous subdivisions set out by the applicant show this.

87 The applicant, at paragraph 7 of its Submissions in Reply dated 19 November 2015, stated:

… what the width of the road reserve contemplated by the ODP happens to be when the ODP is complete is a different question as to what is a sufficient road reserve in the interim whilst the ODP is incomplete.

88 However, each matter must turn on its own facts and on the evidence placed before the decision­maker in each case.

89 Apart from referring to the previous subdivision examples to show that what is proposed by the applicant has in the past been approved by the respondent in other places in other subdivision applications, the only reason put forward by the applicant for a reduction in the road width by 3 metres as contemplated in the ODP appears to be that that is all that is required for the purposes of the present subdivision.

90 As summarised by Mr McKellar at paragraph 44 of his statement of evidence:

44. In my view, providing a 15m wide road reserve is way in excess of what is sufficient for the Applicant's subdivision as proposed. To require a 15m wide road reserve now is beyond the intent of the ODP provisions in TPS 3 (because it militated strict compliance with the ODP) and would only serve to provide a kerbside verge to an excessive width and that is not needed until later subdivision occurs on the north side of the road. As such, a full 15m wide road reserve lacks, in my opinion, nexus with the fact of the proposed subdivision the subject of the application.

91 Ordinary and proper planning often requires a broad view and where an Outline Development Plan or Structure Plan has been put in place to guide development, as stated earlier, the Tribunal must have due regard to it but is not bound by it.

92 A significant amount of planning over a long period of time has clearly gone into the development of the area covered by the ODP and the majority of the land within the ODP has already been developed, although not yet fully developed.

93 Parties whose land is covered by an ODP may seek an amendment to the ODP when they see what is proposed. The present ODP was first adopted approximately 15 years ago (March 2001), but no evidence was before the Tribunal of any application for any relevant amendments being made.

94 As stated at paragraphs 32 to 34 of the agreed facts:

32. The road, as depicted on the ODP is proposed to be a through road which will connect Kelang Road and Fennel Crescent.

33. The road will be a no through road until either of the adjoining Lots 164 or 41 are subdivided.

34. Kelang Road and Fennel Crescent have 15 metre wide road reserves. …

(Tribunal's emphasis)

95 What if the application is therefore approved with a 12 metre wide road reserve and Lot 164 is never subdivided but Lot 41 is. In such circumstances it is possible that the local authority, local residents and any party who had relied on the ODP, may be left with the proposed 12 metre road linking Kelang Road to Fennell Crescent, both of which have 15 metre wide road reserves, where the ODP had clearly planned for a 15 metre wide road reserve for each of those three roads. Is such a result a sound planning outcome?

96 A further issue raised was the cost burden of providing the road. The parties clearly agree that the costs imposed by an ODP should be shared equitably, with the applicant in its submissions of 20 May 2015, at paragraph 13 stating '… the burden of providing the road should be distributed amongst both landowners as equitably as possible'.

97 The parties also appear to agree that the purpose of s 159 of the PD Act is to ensure equity in cost-sharing over time and that an earlier developer who incurs costs has the ability to recover from a later developer 'a sum representing one-half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots …' (s 159(1)(c) of the PD Act).

98 The Tribunal does not agree with the applicant's contention that if the current application was approved the operation of s 159 of the PD Act would produce a 'neutral outcome'. Rather, in the circumstances of the present case and the particular wording of s 159 it may well mean that if the present application was approved and Lot 164 was later subdivided and required to cede a 3 metre strip towards the ultimate road width, the calculations as set out by the respondent in its Outline of Closing Submissions dated 19 November 2015 at paragraphs 24 to 28 set out earlier, and which the Tribunal accepts, may well apply and a larger portion of the overall cost may fall on the owner of Lot 164.

99 Further, the applicant gave evidence and it is not in issue that this was a small subdivision and that changes in a subdivision of small blocks produced changes of greater magnitude than those caused by changes in subdivisions which proposed larger blocks. It follows that if approved the impact on the adjoining land might not simply be limited to the imposition of a 3 metre road reserve, not previously required by the ODP, but it might also provide fewer options to the owner in the design of the subdivision.

100 The applicant was critical of the respondent concerning itself with the impact the approval may have on the adjoining Lot 164 at all and cited Mainstay Group Pty Ltd v Moreland City Council [2005] VCAT 2189 (Mainstay) in support of that proposition.

101 Although the issue of third party rights and notice was considered in Mainstay, the facts of that case were very different to those which are presented to the Tribunal in this case.

102 In Mainstay, VCAT reviewed a refusal by a responsible authority to grant a permit for a development where another proposal for a development had generated local community opposition and controversy where third party objectors were shut out of the process by the effect of the provisions of an Incorporated Plan Overlay which provided that an application under any provision of the scheme which was generally in accordance with the incorporated plan was exempt from notice and appeal.

103 In the context of considering the kind of third party interests in Mainstay, the VCAT found at [32] and [34]:

… so long as the land is within an Incorporated Plan Overlay, a responsible authority (and others) are bound by the provisions of the planning scheme and the responsible authority must make decisions under the planning scheme according to law.

…

… there is no basis for departing from the plan simply because some members of the community dislike some aspects of it. A responsible authority should not attempt to activate third party rights by holding that a proposal is not generally in accordance with the plan on spurious or unsubstantial grounds. Proper process must be observed.

104 That case is not an authority for the proposition that the owner of Lot 164 has no interest that the Tribunal should have regard to in the exercise of its discretion in this review. This is not an instance where the responsible authority is seeking to rescind the provisions of a planning scheme by activating third party rights, as was held in that case, on spurious or unsubstantial grounds. In the present case the responsible authority is seeking compliance with a planning instrument to preserve the integrity of a longstanding ODP where one of the consequences of the responsible authorities refusal to approve the applicant's subdivision might be to prevent an impact on a third party.

105 In Macri and Western Australian Planning Commission [2013] WASAT 157 the Tribunal was asked to determine a preliminary issue on whether a particular condition regarding potential land use conflicts could be imposed on the subdivision.

106 The Tribunal found that 'the condition had been imposed for a proper planning purpose, and had, on its face, a rational and reasonable basis in the related [Environmental Protection Authority] licence boundary'.

107 The applicant sought leave from the Supreme Court to appeal the decision: Macri v Western Australian Planning Commission [2014] WASC 153 (Macri 2014).

108 Although not entirely on all fours with the current application as it dealt with the imposition of conditions, the Supreme Court made comments as to what are relevant planning considerations.

109 In Macri 2014 the applicant argued that there had been a serious error of conflating concerns about the future ownership of the separated and subdivided lots, giving rise to possible 'land use conflicts', in circumstances where a land use conflict 'already existed'. Martin J rejected the ground as 'conceptually misconceived', and observed as follows at [42] ­ [43]:

In a context of what is or is not a relevant planning consideration for WAPC (or SAT) warranting potential imposition of a condition tied to a subdivisional approval such as condition 1, I assess it as both relevant and appropriate for a planning approval entity to have in mind possible future conflict ramifications of dividing an existing lot.

Avoiding future land use conflicts must surely be a relevant planning consideration. I reject any submission that it is unreasonable, let alone manifestly unreasonable, for a planning authority such as WAPC to have in mind as a consideration future land use conflicts. To proceed otherwise on my assessment would defy logic and commonsense, indeed strike at the very rationale for having a planning body assessing proposed subdivisions at all. By its very nature, the statutory function of a 'planning' body must involve a prospective consideration of matters that may arise in the future.

110 The Tribunal is of the view that similar reasoning is applicable in the present case, and the impact of approving the proposed 12 metre road on this occasion with the remaining 3 metres necessarily having to come from Lot 164 in the future, when a long-standing ODP had shown no plan for such a requirement is clearly a reasonable relevant consideration. A responsible planning authority's considerations are not simply limited to the boundaries of the applicant's site.

111 Furthermore, as stated by Barker J in Sunbay:

It is fundamental to orderly and proper planning that a proposed development should generally provide appropriate mitigation for its impacts within its site and not require adjoining developments to 'make adjustments' (to borrow Cole JA's words) or limit the development of the potential of adjoining land below that reasonably contemplated by the zoning and planning controls. …

112 Barker J in Sunbay went on to note that there can of course be exceptions, but the Tribunal is not satisfied that this case is or should be one of them.

113 In the present case the Tribunal is guided by all of the relevant legislation and policies and the evidence of the parties. In particular, the Tribunal is mindful of the objectives of cl 4.2.1 of TPS 3:

• To provide orderly and proper planning through the preparation and adoption of a Structure Plan setting the overall design principles for the area.

• To permit the development of land for residential purposes and for commercial and other uses normally associated with residential development.

114 The purpose of Development Areas is provided at cl 6.2.2 of LPS 3:

(a) To identify areas requiring comprehensive planning prior to subdivision and development; and

(b) To coordinate subdivision, land use and development in areas requiring comprehensive planning.

115 The applicant's proposal therefore that '3 metres of the 15 metre­wide road is capable of being provided when the adjoining landowner subdivides their land in the future (Lot 164), so it is only necessary that the applicant to provide a 12 metre­wide road reserve on its land at this point in time' (paragraph 6 of Agreed Facts) must be examined in light of all the relevant planning instruments to which the Tribunal must have due regard.

116 As the respondent stated in their Closing Submissions dated 19 November 2015, with which the Tribunal largely agrees:

Structure plans and ODPs provide a vehicle or tool for managing the progressive development of land for urban and related purposes ­ particularly where the land is fragmented across multiple land holdings.

Unless there is a sound reason not to, it is not a controversial statement to suggest that ODPs should, in the ordinary course, be followed. This is because ODPs are a public instrument that sets out how a parcel or parcels of land will be developed conjointly. People make investment decisions based on the content of ODPs plans and therefore rely on that content being followed when implementing the ODP.

117 Mr Gordon and Ms Rajaram's evidence was well reasoned and gave sound planning reasons for not allowing a 12 metre wide road reserve in the present application.

118 The Tribunal accepts their evidence as to the need for the 15 metre wide road reserve to be part of the present subdivision for which the applicant has a statutory right to be compensated under s 159 of the PD Act if future subdivision occurs on Lot 164.

119 The ODP has been in place for a significant period of time and, as per Mr Gordon's evidence, is 80 ­ 90% complete. Although this subdivision will not complete it, a significant amount of development has taken place in compliance with it. Indeed, as is clear from the Shire of Kalamunda's second reason refusing the application dated 14 August 2014, 'Portion of Fennell Crescent has already been constructed over lots in the vicinity of the application area to the required 15 metre width'.

120 To allow the current application would be to allow at a late stage in a largely developed ODP a change which may result in an undersized road reserve joining Kelang Road and Fennell Crescent which may in turn have a significant negative impact on the future road continuity of the area and be a burden on other landholders. This is not, in the Tribunal's view, in line with orderly and proper planning.

121 Furthermore, although not decisive of the matter, it is noted that if the applicant is allowed to construct a 12 metre wide road reserve and Lot 164 is later subdivided and obliged to provide a 3 metre strip to bring the 12 metre wide road reserve up to the correct final size, it may result in a higher proportion of the overall cost of providing the road falling on Lot 164. This would run counter to the provision of a longstanding ODP, and in the circumstances of the present case, is not equitable and not in line with orderly and proper planning.

122 The Tribunal therefore having considered all of the evidence before it and the relevant planning instruments, and having regard to (but not being bound by the ODP), sees no sound planning reason for departing from the ODP on this occasion.

123 In all the circumstances, therefore, and for each of the reasons outlined, the respondent's decision of 30 June 2015 will be affirmed and the application dismissed.

Orders

1. The respondent's decision dated 30 June 2015 refusing the subdivision application is affirmed.

2. The application to review the respondent's decision is dismissed.

I certify that this and the preceding [123] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, SENIOR MEMBER

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