HARMER and WESTERN AUSTRALIAN PLANNING COMMISSION - [2012] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HARMER and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 142

MEMBER: MR J JORDAN (MEMBER)

HEARD: 11 APRIL 2012

DELIVERED : 9 JULY 2012

FILE NO/S: DR 240 of 2011

BETWEEN: RICHARD HARMER
CORNELIA HARMER
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Conditional approval - Review of conditions concerned with construction of a road, street lighting and footpaths - Low density residential zoning - Hills townsite location - Remnant vegetation in verge - Variation to local subdivision and infrastructure plan - Requirements to satisfy conditions - Policy on residential road standards Whether conditions have proper planning purpose Whether conditions reasonably relate to approved subdivision

Legislation:

Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA), reg 5
Environmental Protection Act 1986 (WA)
Land Administration Act 1997 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 143(1), s 145(1), s 145(2), s 158(1), s 251(1), s 252(2)
Residential Design Codes of Western Australia (2010)
Shire of Mundaring Town Planning Scheme No 3, cl 3(b), cl 4.48, cl 4.48(2)(a), cl 4.49, cl 4.50(1), cl 4.53, cl 5.3(c)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application for review upheld in part
Conditions 3, 4, 6 and 7 deleted and replaced with amended conditions 3, 4, 6 and 7 that set out with more certainty the requirements to be satisfied

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr I Repper

Solicitors:

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

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

Harmer & Anor and Western Australian Planning Commission [2007] WASAT 250

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of four of the conditions imposed on an approval granted for the subdivision of a lot with dual road frontage into eight low density residential lots, comprising six lots of about 2,000 square metres and one lot of 4,000 square metres, and an open space lot, in the townsite of Mt Helena, Shire of Mundaring. The conditions in dispute required that, at one road frontage, the subdivider construct the road and a culdesac head, install street lighting and construct a footpath. At the second frontage road, a condition required that the subdivider construct a footpath for the length of the new residential lots.
The Tribunal found that the Shire of Mundaring and the Western Australian Planning Commission have relied upon and have in recent subdivision approvals consistently been imposing subdivision conditions based upon universally applied subdivision and development policies and guidelines and a 2002 planning study that distinguished between residential areas and the rural hinterland. There are no planning instruments particularly directed to maintaining what was referred to as 'hills character' for the residential zoned localities of Mt Helena.
In this planning context, the Tribunal found that the subdivision conditions imposed, with the exception of one section of footpath, had a proper planning purpose, and fairly and reasonably related to the subdivision layout applied for and approved.
The Tribunal decided that the application for review would be upheld, only to the extent that the conditions imposed would be replaced with reworded conditions that were more certain in what was required to satisfy the condition.

Introduction

These proceedings involve an application brought by Mr Richard Harmer and Mrs Cornelia Harmer (applicants), pursuant to s 251(2) of the Planning and Development Act 2005 (WA) (PD Act), for review of four of the conditions imposed by the Western Australian Planning Commission (respondent or Commission) on the approval granted for the subdivision of Lot 221 William Road, Mt Helena (site), to create eight low density residential lots and a public open space lot.

Site and locality

The site has an area of 2.07 hectares and is triangular in shape. The site has a frontage of about 247 metres to the 20 metre wide Alfred Street road reserve at the northern boundary, a frontage of about 290 metres to the 40 metre wide William Road road reserve at the southwest boundary, and a common boundary of about 158 metres with residential zoned lots adjoining to the east. The William Road and Alfred Street road reserves merge at the 'apex' of the site at Bunning Road, a bitumen northsouth district distributor road at the west of the site. The site has on it a single dwelling with various outbuildings and scattered stands of mature remnant vegetation, including trees.
The parties described Alfred Street as constructed to a bitumen standard eastward from the eastern boundary of the site to Alison Street, a northsouth bitumen local distributor road about 300 metres to the east. Vegetation has been removed from the narrow southern verge of the carriageway, but remains along the wider northern verge. Alfred Street is unconstructed across the frontage of the site, with only a minor vehicle track through the vegetation in the road reserve between the eastern boundary of the site and Bunning Road to the west.
William Road is a formed, unsealed gravel road that extends westward from Alison Street to Samuel Street. The 40 metre wide William Road road reserve is said to have remnant vegetation each side of the road intersected by vehicle crossovers, and on the southern side, a line of clearing for overhead power lines. Samuel Street is a bitumen road that runs south towards the town centre of Mt Helena from its junction with William Road opposite the site, about 20 metres from the site's eastern boundary. Samuel Street is said to have remnant vegetation in the road verge. From the junction with Samuel Street westward, William Road is a track through the vegetation in the road reserve to near the Bunning Road and Alfred Street road reserve intersection.
Alfred Street is the northern extent of the residential zoned area associated with the hills locality of Mt Helena. Approximately 2 kilometres to the southsoutheast of the site is the centre of Mt Helena, with a shop, community centre, primary school and the district high school.
To the north of Alfred Street and west of Bunning Road are rural properties. To the east between the site and Alison Street are approved low density residential subdivisions of lots of about 2,000 square metres, with new houses built on some recentlycreated lots. On the southern side of William Road are older, low density residential subdivisions, with most lots having a house on them. This pattern of residential subdivision extends southward between Alison Street and Bunning Road, to the town centre. On the corner of Samuel Street and William Road is an area of public open space. At the corner of William Road and Alison Street is a lot with kennels.

Planning framework

The site is zoned Urban in the Metropolitan Region Scheme and Residential under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3).
Extending south of Alfred Street to the centre of Mt Helena, between Bunning Road to the west and Alison Street to the east, lots, which include the site, are zoned Residential with a density coding of R5 under TPS 3. Table 1 of the Residential Design Codes of Western Australia (2010) (Codes) lists as site requirements for a density coding of R5, a minimum site area per dwelling of 2,000 square metres, a minimum frontage of 30 metres and a minimum open space area of 70%. North of Alfred Street, the land is zoned 'Rural Landscape Living no further subdivision' under TPS 3.
TPS 3 Pt IV Div 12 is concerned with subdivision and, at cl 4.48(2)(a), provides that, subject to certain exemptions not relevant to this matter, the Shire of Mundaring (Shire) shall not support subdivision of land in the Residential and Rural Landscape Living zones, unless a Local Subdivision and Infrastructure Plan (LSIP) has been prepared. Clause 4.49 of TPS 3 sets out the procedures for an LSIP being adopted by the Shire and endorsed by the Commission. Clause 4.50(1) of TPS 3 provides that the Shire may accept partial compliance with an LSIP.
Clause 4.53 of TPS 3 provides that, in the residential zone, minimum lot sizes shall be in accordance with the Codes, unless a particular parcel of land has been included in a LSIP. Allotment sizes indicated on the LSIP shall then form the basis of subdivision.
The site is included within LSIP 249, a triangular area bounded by Alfred Street to the north, Alison Street to the east and William Road to the south-west. LSIP 249 was approved by the Shire on 17 December 1996 and endorsed by the Commission on 23 September 1997. The original version of LSIP 249 showed the site being subdivided around a cul-de-sac off William Road.
An amendment to LSIP 249 in April 2000 affected the site. This amendment deleted the culdesac and provided for the three proposed lots, with frontage only to the unconstructed Alfred Street road reserve, to have a battleaxe access leg to William Road. Two further modifications to LSIP 249, approved in June 2005 and April 2010, affected land to the east of the site, but had no impact on the site. Landowners and the Shire have proposed other amendments to LSIP 249 since 1996, but only the amendments referred to above have been endorsed by the Commission.
LSIP 249 shows a 'proposed' closure of the western end of William Road and 'incorporation' of that land into adjacent public open space. Also, on LSIP 249, a handwritten annotation states 'Denotes Samuel Street Closure' at its junction with William Road. To close a section of public road so that it is no longer part of the road reserve, a local government must make a formal application to this end under the Land Administration Act 1997 (WA). The respondent said that the local government had made no such application, and it was not now proposed to proceed with the road closures shown on LSIP 249 because of, in part, policies adopted for fire control. Samuel Street, William Road and Alfred Street remain public road reserves under the control of the Shire, even though the latter two are, in part, unconstructed.
Part V of Div 1 of TPS 3 is concerned with exemptions from tree preservation requirements. Clause 5.3(c) of TPS 3 provides that Council's approval is not required for the 'lopping, topping, ringbarking, destruction or removal of trees or natural vegetation' on lots of less than 4,000 square metres. Council approval is required for the removal of trees and natural vegetation as shown on a LSIP that includes a tree preservation area, and also in certain circumstances not relevant in this instance. The proposed lots would all be about 2,000 square metres, and LSIP 249, as it affects the site, does not include a tree preservation area.
The subdivision approval, however, includes condition 22, which is not in dispute, that requires a 'Tree Retention and Removal Plan', including 'verge trees', to be prepared and implemented to the specifications of the local government. An advice note in the subdivision approval letter also reminds the subdivider that clearing of native vegetation is prohibited, unless clearing is authorised by a clearing permit obtained from the Department of Environment and Conservation, or is of a kind that is exempt in accordance with Sch 6 of the Environmental Protection Act 1986 (WA) or reg 5 of the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA). Exemptions include clearing for firebreaks, by licensed surveyors for development sites of less than 1 hectare, and for subdivision works.
The parties referred to various of the following Commission documents, including:
•Policy DC 1.1 Subdivision of Land General Principles 2004 (DC 1.1);
•Policy DC 1.4 Functional Road Classification for Planning 1998 (DC 1.4);
•Policy DC 1.7 General Road Planning 1998 (DC 1.7);
•Policy DC 2.2 Residential Subdivision 2003 (DC 2.2);
•Policy DC 2.6 Residential Road Planning 1998 (DC 2.6);
•Liveable Neighbourhoods 2007 (Liveable Neighbourhoods);
•Planning for Bushfire Protection Guidelines Edition 2 2010 (PFBP Guidelines); and
•Northeastern Hills Settlement Pattern Plan 2002 (NHSP Plan).
Clause 2 of DC 1.1 lists policy objectives which include, at cl 2(c), 'to ensure constructed vehicle access from the gazetted public road system to each new lot'. Clause 3.7 of DC 1.1 states:
3.7.1New 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.
3.7.2Where new roads are needed, the subdivider will be required to dedicate, construct and drain these roads to the specifications and satisfaction of the WAPC on the advice of the local government. The WAPC may also require existing roads or rights of way to be widened, constructed, upgraded or dedicated to ensure compliance with this policy.
Clause 3.2 of DC 1.7 refers to upgrading and construction of existing roads, and states:
3.2.1Existing roads shall be required to be constructed or upgraded as a condition of subdivision, where the Commission and the road authority agree that the subdivision should not proceed unless the construction or upgrading occurs. In imposing this condition the Commission and the road authority should be satisfied that the existing roads are either substandard or inadequate to accommodate the additional traffic generated from the subdivision and associated development.
3.2.2The condition will normally require the applicant to enter into satisfactory arrangements with the road authority for the construction/upgrading of the relevant road. The responsibility for the design and construction of the works is a matter for negotiation between the applicant and the road authority.
3.2.3If the road authority is not in the position to immediately carry out the construction or upgrading, the subdivider may undertake either of the following to allow the subdivision to proceed:
•carry out the works to the satisfaction of the road authority;
or
•contribute to the cost of the works by either cash payment or other means acceptable to the road authority (eg bank guarantee). Contributions should be based upon an amount equal to the road authority's estimated cost to undertake the works at the date of clearance of the road for upgrading/construction condition by the local government.

Previous subdivision approvals for the site

In January 2002, the Commission approved, subject to conditions, an application for subdivision of the site into eight lots of between 2,014 square metres and 2,635 square metres, and public open space of 2,076 square metres at the western end. That approval lapsed in 2006.
On 11 January 2006, the Commission approved an application for subdivision of the site into eight lots of between 2,009 square metres and 2,826 square metres, and public open space of 2,076 square metres at the western end (WAPC Ref 129582). Two lots at the western end of the site adjacent to the open space had frontage to both Alfred Street and William Road road reserves. Three lots had frontage to the Alfred Street road reserve, but also a battleaxe access leg to William Road, and three lots had frontage only to William Road.
In January 2007, following an unsuccessful request to the respondent for review of a condition requiring 'arrangements being made with the local government' for the construction and drainage of William Road, the applicants lodged with the Tribunal an application seeking review of that condition: Harmer & Anor and Western Australian Planning Commission [2007] WASAT 250 (Harmer 2007). The determination in Harmer 2007 was to amend the road construction condition to set out the respective responsibilities of the applicants and the Shire for particular portions of the construction and drainage of William Road. The 2006 approval also lapsed and the current subdivision application was lodged with the Commission on 20 July 2010.

Current subdivision approval

On 14 July 2011, the Commission approved the subdivision of the site. Approved was a 2,067 square metre triangular area of public open space at the western end of the site, with frontage to both the Alfred Street and William Road road reserves, and eight residential lots of between 2,000 square metres and 4,130 square metres.
The approved lot layout comprised, eastward from the open space, Lots 1 and 2, with both lots having frontage to both the Alfred Street road reserve to the northern end and the William Road road reserve at the southern end, then, adjacent to those two lots, three lots, Lots 6, 7 and 8, with frontage only to the Alfred Street road reserve, and abutting the southern boundary of those three lots, Lots 3, 4 and 5, each with frontage only to the William Road road reserve.
The applicants applied for review of various of the conditions imposed on the July 2011 approval. As a consequence of mediation, the Commission was invited by the Tribunal to reconsider the conditions, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). The Commission resolved to vary certain of the conditions on 14 February 2012.

Conditions in dispute

There remain at issue between the parties, the following conditions:
…
3.Arrangements being made with the local government for the construction and drainage of Alfred Street for the frontage of the proposed Lots 68 shown on the approved plan of subdivision.
4.The culdesac head for Alfred Road [sic] being designed and constructed to the specification of the local government.
…
6.The provision of street lighting along Alfred Street abutting the proposed Lots 68 shown on the approved plan of subdivision to the specifications of the local government.
7.Arrangements being made with the local government for the provision of footpaths abutting the subdivision area to the specification of the local government. The scope and proportional share of the works and/or cost contributions shall be as follows:
(i)The applicant is responsible for contributing 100% of the cost of providing footpaths along William Road abutting proposed Lots 1 and 2.
(ii)The applicant is responsible for contributing 50% of the cost of providing footpaths along William Road abutting proposed Lots 35.
(iii)The applicant is responsible for constructing the footpaths along Alfred Street.

Issue

The issue before the Tribunal was whether the approved subdivision should be subject to the conditions in dispute, having regard to whether the conditions fairly and reasonably relate to the proposed subdivision and whether the conditions have a proper planning purpose.

Discussion

The applicants cited the April 2002 NHSP Plan prepared by the then Department for Planning and Infrastructure. They said that they shared the views expressed by the local community, following community consultation summarised at s 2.1 of the NHSP Plan, and this was relevant to their submissions on the conditions in dispute. The summarised views include:
•a strong dislike for standard suburban development, which is seen as inappropriate to the hills environment;
•expectation that rural character of the study area will remain undisturbed as much as possible;
•expectation that the community will be consulted for any plans finalised; and
•a need to protect the hills lifestyle and environment.

The applicants described the locality as an 'historic rural development' and outlined that the district was settled for timber felling and milling. The applicants described the locality as comprising 'rural developments' and said that the 'historic rural nature' of the locality is reflected in vegetated road reserves and William Road being of gravel construction.
The Tribunal acknowledges the history of settlement of the locality and the reference to visual amenity in the NHSP Plan. The Tribunal notes, however, that at s 5.5 of the NHSP Plan, Mt Helena is identified as an existing townsite within a defined rural hinterland. At s 8, it states that the NHSP Plan is to continue the Shire's desire for discrete townsites surrounded by nonurban land uses. Appendix 1 of the NHSP Plan lists matters to be addressed in future planning in association with State Planning Strategy principles. Listed road and transport issues include:
•meet local government traffic engineering standards;
•refer to Liveable Neighbourhoods for street design and construction (if applicable); and
•encourage alternatives to vehicles through provision of pedestrian, bicycle and bridle path networks.
Section 5.4 of the NHSP Plan provides that TPS 3 and any subsequent town planning scheme will continue as the principal planning document guiding development in and around the existing townsites.
The applicants acknowledged the zoning under TPS 3 and the various policy documents identified by the respondent, but stated that these planning documents should be interpreted for the 'hills context', and the standards relevant to higher density residential subdivision should be relaxed or set aside to maintain the 'historic rural character'.
Mr Jon Dooner, a Senior Design Officer within the Infrastructure Services section of the Shire, was called as a witness by the respondent. Mr Dooner and the respondent did not identify any planning policy of the Shire that was directed to establishing or maintaining a particular 'hills' character the Shire might be seeking to achieve in the residential zone of Mt Helena.
The policies relevant to this matter are those listed above and these are relied upon by the respondent and, on the basis of Mr Dooner's evidence, by the Shire in imposing subdivision conditions on subdivisions approved in the residential zoning of Mt Helena.
The Tribunal had no evidence of subdivision approvals granted in this locality prior to 2002, other than the descriptions by the parties of the appearance of the locality. The evidence before the Tribunal was that, at least since 2005, the Commission, consistent with the recommendations of the Shire, has been imposing subdivision conditions consistent with the relevant Commission policies.
The Shire's attitude to the character it is seeking to establish for Mt Helena can be gleaned from the Shire's recommendation to the Commission on a proposed amendment to LSIP 249 on 7 May 2010. The Shire recommended the amendment be approved, subject to conditions requiring Alfred Street being constructed to Bunning Road to urban standard, street lighting, upgrading of William Road, including kerbing, and construction of footpaths along both Alfred Street and William Road. This amendment to LSIP 249 was not endorsed by the Commission, and one reason given was that some of these recommended requirements would more appropriately be imposed on a subdivision approval. There was further evidence of the Shire's attitude to the desired future character of Mt Helena by Mr Dooner's submission that the subdivision conditions imposed on the residential subdivision in Alfred Street, and in the approval of a residential culdesac off Alison Street, be repeated for the subdivision of the site.
The Tribunal has formed the view that the Commission and the Shire have consistently required subdivisions to be consistent with the Commission's current policies since 2005. These conditions are not directed to maintaining the 'historic rural character' as desired by the applicants.
The Tribunal would add that, as soon as residential subdivision occurs at an R5 density, a strictly 'rural character' is severely compromised. The proposed subdivision would result in seven additional houses being built on the site. Any 'rural character' can only be achieved in such circumstances by control of the extent of clearing that might occur on each of the new lots and within the neighbouring road verges. Condition 22 of the respondent's approval appears to be the only requirement directed to that end.
The Tribunal acknowledges that the locality has a particular character because, in the past, conditions relating to roads, footpaths and lighting imposed on the subdivision of other lots were either different from those proposed for the site or not imposed at all. However, since the NHSP Plan of 2002 and particularly since 2005, the Shire and the Commission have respectively been recommending and imposing subdivision conditions that will establish the future residential amenity of the locality. It is against this planning background that the conditions in dispute have been considered by the Tribunal.
In considering the conditions that remain in dispute between the parties, the Tribunal considers that condition 3 and condition 4 are best discussed together, because the culdesac head would be the termination of a constructed Alfred Street. The conditions, respectively, state:
3.Arrangements being made with the local government for the construction and drainage of Alfred Street for the frontage of the proposed Lots 68 shown on the approved plan of subdivision.
4.The culdesac head for Alfred Road [sic] being designed and constructed to the specification of the local government.
In his statement, Mr Dooner said that in the Alfred Street road reserve adjacent to the site, a 'gravel emergencyonly track had been installed to provide an additional escape route in case of bushfire'. At the hearing, Mr Dooner described this as a 'bush track, two wheel ruts through the bush'.
Mr Dooner's submission was that the site was to be subdivided to an 'urban' standard, and therefore the construction and drainage of the currently unconstructed Alfred Street should be to an urban standard. Mr Dooner said that this standard was a 6.1 metre wide asphalt seal with semimountable kerbing on both sides and a suitable piped drainage system. This was the standard of the existing urban road in the Alfred Street road reserve to the east of the site, providing road access to the adjacent R5 density residential subdivision.
Mr Gregory Davey, a Town Planning Officer of the Department of Planning, was also called by the respondent as a witness. Mr Davey said that allowing the proposed subdivision without the imposition of condition 3 and condition 4 would result in the creation of lots for development at a residential density without any constructed road access. Mr Davey said that the need to construct Alfred Street arises solely from the subdivision of the site and the associated demand for vehicle access. The rural zoned lots to the north do not use Alfred Street for access.
The respondent's submission was that condition 3 and condition 4 are based on established policy. Mr Davey referred to the requirement for constructed road access to newly-created lots at cl 2(c) and cl 3.7 of DC 1.1 and cl 3.2 of DC 1.7.
The applicants made submissions that orderly and proper development required the preparation of a road traffic management plan, which would include the hierarchical classification of all roads in the locality. No plan has been prepared and so it was not clear what standard of road was required. The applicants said that the function of Alfred Street was not only to provide access to the residents who live on it, but also to function as a connector to Bunning Road and then to Mt Helena, Sawyers Valley, Great Eastern Highway and Toodyay Road. The applicants said that Alfred Street could not be a culdesac, because fire regulations would prohibit any closure of the link between Bunning Road, a class A district distributor, and Alison Street, a local distributor.
The applicants went on to argue, however, that the construction of Alfred Street east of the site was 'not consistent with the historical rural nature of developments in the area'. Mr Harmer said that Alfred Street, in front of the proposed lots, was as described by Mr Dooner. The applicants appreciated having trees within the road reserves, and Alfred Street did not need to be constructed. If it was to be constructed, the level of construction should retain trees and be a gravel road similar to William Road.
The applicants said that the elimination of the battleaxe legs, shown in the Harmer 2007 subdivision proposal, was a minor variation to the endorsed LSIP 249, and they had paid a road contribution for the proposed eight lots as part of that subdivision approval. It was acknowledged that the payment had been returned, but argued that that was because the Shire was not able to commit to a standard and a time for the construction of William Road.
The Tribunal notes the comment that in Alfred Street to the east of the site, no vegetation appears to have been left in the verge adjacent to the residential zoned R5 lots to the south. Mr Dooner described that the footpath is on the south side of the carriageway abutting the kerbing. The verge is said to be narrow on the southern side of the road, with a wider verge on the northern side of the roadway, and with the remnant vegetation left generally intact adjacent to the rural landscape living zoned land.
In this matter, the applicants have commented that having frontage to Alfred Street road reserve is sufficient to satisfy the requirement for road access. The Tribunal considers that it is now an established principle of orderly and proper planning that single residential lots created as part of a subdivision must have both frontage and access to a gazetted road. Access and frontage are interrelated, but raise different issues.
Frontage to a public gazetted road reserve is required for single residential lots to ensure that services such as water can be provided, and also to ensure that constructed vehicular access can be made available within the road reserve consistent with established planning practice.
The question that then arises is: what standard of constructed road access is required? The Tribunal accepts the description by Mr Dooner that fronting Lots 6, 7 and 8 is a gravel track. The Tribunal does not accept that a gravel track is the appropriate standard of vehicle access for residential lots. In this matter, in respect of residential lots, this principle is expressed in the respondent's policies DC 1.1, DC 1.7 and Liveable Neighbourhoods. The NHSP Plan, at Appendix 1, lists matters to be 'addressed' in any future planning, and requires roads to meet local government engineering standards, and in the respondent's submission, this is not the gravel road suggested by the applicants, but includes the 6.1 metre kerbed and drained road for Alfred Street.
The Tribunal accepts that it is wellestablished planning practice that, in the interests of orderly and proper planning for subdivision, access to a lot is expected to be provided to a standard for the normal use of the lot for the purpose for which it is created. The Tribunal has formed the view that, for a single residential subdivision, even in a hills location, a road constructed to a bitumen standard is necessary to provide a safe, durable, all weather access for the range of vehicles expected to visit residential lots. The Tribunal notes that the subdivision would be of only one side of the road, with the other side of the road being within a rural living zone where there is to be no further subdivision. In its existing unsubdivided configuration, the site has dual road frontage with access from gravel William Road. Construction of Alfred Street is therefore not required until subdivision occurs and Lots 6, 7 and 8 will only have access from Alfred Street.
The Shire previously set as a standard for Alfred Street to the east of the site a 6.1 metre wide carriageway with rollover kerbing and piped drainage. The respondent's submission was that this standard of road should continue across the frontage of Lots 6, 7 and 8. The culdesac head would have a radius of 9 metres, which was said by the respondent to be necessary for the turning circle for a garbage truck.
It was Mr Davey's evidence that the respondent requested advice from the Shire on the standard of road it would require to satisfy road construction conditions. Mr Davey said that, in the event that the respondent disagreed with the Shire on the standard recommended, then the respondent would, in any event, require what the respondent considered an appropriate standard.
In this matter, the Shire and the respondent are in agreement that the road construction required for frontage to Lots 6, 7 and 8 should be to the standard explained by Mr Dooner. Mr Dooner said the standard required was consistent with the standards for residential subdivision within the manual Local Government Guidelines for Subdivisional Development Edition 2009 (Guidelines for Subdivisional Development), which, in turn, were consistent with the road requirements of Liveable Neighbourhoods.
The Tribunal notes that, in this instance, the standards being pursued by the respondent and the Shire relate to concern about use of the road by garbage trucks. At the hearing, there was no acknowledgement of the applicants' concern about the roads constructed having an impact on mature vegetation within the road reserve.
The Tribunal has concluded that condition 3 and condition 4, as imposed, have a proper planning purpose. Constructed road access is required for each new lot, the standard required is consistent with residential development, and it would be unsafe for Alfred Street to be continued by a carriageway of lesser width than that existing eastward from the site. The Shire and the respondent are now pursuing the course set out in condition 3 and condition 4 in providing infrastructure in Mt Helena, and the new road is required only because the subdivision has been approved. The Tribunal has concluded that the conditions reasonably relate to the proposed subdivision.
In respect of the applicants' comments about fire access between the required culdesac head and Bunning Road, a fire management plan is required under condition 8 of the subdivision approval. Constructing a culdesac head is not an act that closes the Alfred Street road reserve between proposed Lot 8 and Bunning Road.
The Tribunal notes that Mr Dooner made explicit that the western end of the culdesac head would be adjacent to the western boundary of Lot 8; that is, the carriageway extension of Alfred Street with the culdesac head at the western end would extend across Lots 6, 7 and 8 to the western boundary of Lot 8 with the bitumen not extending beyond the western boundary of Lot 8.
The Tribunal has concluded that condition 3 and condition 4 would be more certain if reworded to specify the construction standard, the point at which the road with its cul-de-sac head terminated, the responsibility of the subdivider for the cost of the construction, and alternative arrangements for the construction of the road that might be made by agreement with the local government as provided at s 158(1) of the PD Act and restated at cl 3.2.3 of DC 1.7. Each of the conditions 3 and 4 can be worded accordingly.
Condition 6 requires:
The provision of street lighting along Alfred Street abutting the proposed Lots 6 8 shown on the approved plan of subdivision to the specifications of the local government.
Mr Dooner said that to satisfy condition 6, the Shire would require that a street light be installed adjacent to the boundary between proposed Lot 6 and Lot 7, and a second street light be installed at the head of the cul-de-sac. Mr Dooner said that these would be a continuation of the street lights in place in the constructed section of Alfred Street to the east. In his opinion, the street lights were necessary for the level of safety and amenity for pedestrians and traffic expected within a residential subdivision.
Mr Davey cited the reference in the objectives of Liveable Neighbourhoods to the provision of street lighting in residential areas. He was of the view that lighting was required to ensure that Alfred Street terminating at a cul-de-sac head would not be a 'surprise'.
The applicants said that there were no street lights on Bunning Road or Samuel Street, and that this reflected the historic rural nature of the locality. The applicants said that street lighting disturbed wildlife and had an adverse impact on the amenity of the locality. Their preference was for the bush and night sky not to be disturbed by the 'light pollution of street lighting'. In their opinion, street lighting was also not necessary because of the low traffic volume and because most traffic would be local.
The Tribunal has decided that condition 6 reasonably relates to the proposed subdivision. The Shire has set a residential standard for the construction of Alfred Street and it is a concern that this standard, including the provision of the two street lights, should be maintained at the end of the street. Alfred Street is essentially a 400 metre long culdesac, and to have the head of the cul-de-sac lit would serve a proper planning purpose. Condition 6 is consistent with the conditions imposed on recent subdivision approvals in the locality which reflect current policy documents, and this includes street lighting.
The Tribunal has formed the opinion that two additional street lights in Alfred Street are likely to have little impact additional to that of four houses about 20 metres apart along the street frontage.
Condition 6 can be reworded to be more certain by specifying the location of the two additional street lights in Alfred Street, and by requiring that the lights be provided at the subdivider's cost.
Condition 7 states:
Arrangements being made with the local government for the provision of footpaths abutting the subdivision area to the specification of the local government. The scope and proportional share of the works and/or cost contribution shall be as follows:
i)The applicant is responsible for contributing 100% of the cost of providing footpaths along William Road abutting proposed Lots 1 and 2.
ii)The applicant is responsible for contributing 50% of the cost of providing footpaths along William Road abutting proposed Lots 3 5.
iii)The applicant is responsible for constructing the footpaths along Alfred Street.
Mr Dooner said that the footpaths would ensure future residents of, and visitors to, the proposed lots were provided with a level of access, safety and amenity expected within residential subdivisions. He said that the footpath requirements were consistent with the standards for residential subdivision within the Guidelines for Subdivisional Development. These standards, he said, were consistent with the requirements of Liveable Neighbourhoods.
Mr Dooner said that to satisfy the condition, the Shire would require the existing 2 metre wide concrete footpath in Alfred Street to be extended across the frontage of proposed Lots 6, 7 and 8 to terminate at the head of the culdesac. In William Road, a new 2 metre wide footpath would have to be constructed, preferably of concrete, although the Shire would consider any suggested alternative material that was as enduring, safe and maintenance-free. Mr Dooner said that the William Road footpath could be on the southern side of the road where there was a wider verge and some clearing for the power transmission lines. The alignment would be subject to existing ground conditions and vegetation, and care would be taken to ensure minimum disruption to the existing trees.

Mr Davey said that he considered there was potential for vehicle and pedestrian conflict as a result of the proposed subdivision, and a listed objective of DC 2.6 was providing safe passage for pedestrians. He said that cl 1.2 of DC 2.6 referred to footpaths as an important aspect of verge treatment for pedestrian safety, and cl 3.6.1 of DC 2.6 required that footpaths be provided by the subdivider. Mr Davey emphasised R31 of Element 2 of Liveable Neighbourhoods, which requires access streets to have a footpath or shared path on one side, and the consideration at Appendix 1 of the NHSP Plan of providing pedestrian networks.
The applicants pointed out that there were no other footpaths in this area other than adjacent to the lots created by the neighbouring subdivisions to the east. In respect of these subdivisions however, the culdesac Boyes Court and the new culdesac off Alison Street do not include a footpath. The applicants said that constructing the proposed footpaths would destroy vegetation and the existing hills character. In their opinion, it was 'nonsense' that there would not be expected levels of access, safety and amenity for pedestrians if the footpaths were not constructed, because the roads would be equivalent to access places with low volume, local traffic. They considered the requirements of Liveable Neighbourhoods to be generalisations more applicable to high density developments on the flat sand country along the coast that did not take into account the unique and historic hills environment.
The Tribunal notes that the objectives of Element 2 of Liveable Neighbourhoods include providing safe, convenient, legible movement networks for pedestrians, and promoting walking to daily activities (O11; O14). The objectives, however, also include providing attractive streetscapes which function as important and valuable public places that add value to the amenity of adjacent housing and developments (O16; O20). The figures in Liveable Neighbourhoods, particularly Fig 19 Fig 22, include crosssections of access streets created as part of a subdivision. In this regard, street trees are identified as a verge treatment to be added to new verges. The Tribunal was not provided with any information on inserting carriageways and footpaths into existing road reserves that already contain extensive mature vegetation. The same tension between presenting attractive streetscapes and constructing footpaths also appears in cl 5.1 of Module 5 Streetscape Guidelines of the Guidelines for Subdivisional Development.
TPS 3 Sch 7 cl 3(b) provides that a LSIP should include a footpath/bicycleway/bridlepath system, but LSIP 249 does not include footpaths. The Tribunal accepts, however, that, relevant to consideration of condition 7 are the subdivisional policies of the Commission, particularly DC 2.6, Liveable Neighbourhoods and Guidelines for Subdivisional Development, relied upon by the respondent and Mr Dooner. Appendix 1 of the NHSP Plan of 2002 referred to the provision of footpaths in hills townsites.
The 2006 subdivision approval for the site included condition 8 that required footpaths to be constructed to the satisfaction of the Shire. Condition 8 referred to an attachment which showed a pink line around the road frontage of the site with an annotation 'footpath required'. Harmer 2007 did not include a review of this condition. Table 4 of Liveable Neighbourhoods includes 'access streets' and the Guidelines for Subdivisional Roads include at Table 3.4 'Access way', each of which refer to shared vehicle, bicycle and pedestrian use in particular circumstances.
In this matter, the Tribunal has formed the view that a footpath in William Road between Samuel Street and the eastern boundary of the site is appropriate. This is because this footpath, while not yet, does have the potential to be part of a footpath system connecting the William Road locality to the Mt Helena commercial and public facilities to the south. Footpaths have been required by recent subdivisions fronting Alison Street, and while there will be a gap, there will eventually be a connection to existing footpaths in Cook Street and Evans Street to the south.
William Road west of Samuel Street is a cul-de-sac. It would service two proposed residential lots on the northern side and existing open space on the southern side, and there would be very minimal traffic. The footpath east of the site might well be on the southern side of the road. In the Tribunal's view, this section of road is consistent with an access street of Liveable Neighbourhoods and an accessway of the Guidelines for Subdivisional Roads. The Tribunal considers that a footpath is not required along the section of William Road west of Samuel Street.
In Alfred Street, the proposed carriageway extension would serve only three lots, but the cul-de-sac head is the termination of what is, effectively, a very long cul-de-sac with no alternative exit for vehicles. The Tribunal considers that the potential for pedestrian/vehicle conflict would be sufficiently high to warrant the footpath being extended to the head of the cul-de-sac.
The Tribunal has concluded that footpaths in Alfred Street and William Road east of Samuel Street are required, in part, as a consequence of this approved subdivision and will contribute to achieving a proper planning purpose.
Condition 22 of the subdivision approval, referred to above, requires the applicant to prepare a tree retention and removal plan 'including, but not limited to all verge trees adjacent to the subdivision area'. In this respect, the applicant has some opportunity to contribute to a footpath alignment consistent with tree preservation.
The Tribunal has formed the view that the cost-sharing arrangements in condition 7 are appropriate given the form of the subdivision. The Tribunal has therefore concluded that condition 7 is to be supported, subject to the deletion of requirement (i) and the reordering of the remaining requirements accordingly.

Conclusion

The Shire has zoned the site Residential under TPS 3 with a density coding of R5, described as low density under the Codes. The approved subdivision is not identical to, but is consistent with LSIP 249, endorsed by the Commission, which depicts lots of about 2,000 square metres. The Tribunal has concluded that this is a zoning and a subdivision pattern that will add to the planned growth of the Mt Helena townsite, but will not maintain the 'historic rural character' of the original subdivision pattern in the district referred to by the applicants.
Mr Davey and Mr Dooner, the respondent's expert witnesses, relied upon Liveable Neighbourhoods, the Commission's policies and the Guidelines for Subdivisional Development to determine the requirements and standards of infrastructure in this locality. It has been these universallyapplied documents, now consistently being used by the authorities, which is determining the future character of Mt Helena. The applicants referred to the NHSP Plan of 2002 summary of residents' opinions, but this document cites the standards of the Commission's policies for roads and footpaths.
Condition 22 of the approved subdivision which is concerned with identifying trees for preservation is the only condition which appears to give deference to the location of the townsite in the hills. The NHSP Plan defers to TPS 3 as the controlling instrument and, other than lot size and setbacks, TPS 3 assists little, even excusing lots of the size proposed from clearing controls.
In this matter, the Tribunal has found that the responsible authorities, at least since the NHSP Plan of 2002, have consistently applied particular standards for infrastructure in Mt Helena. The Tribunal has found that the conditions under review do reasonably relate to and serve a proper planning purpose in respect of the layout of the residential subdivision applied for and approved by the respondent.
The applicants submitted that the conditions in question and the local government's processes had 'no accountability, no equity, no consistency and no transparency'. They complained that the previous subdivision approval for the land, the subject of Harmer 2007, expired because of the time taken to clarify with the respondent and obtain from the Shire the requirements to satisfy conditions and get from those authorities a response to their submissions that the requirements were unreasonable.
The respondent had no objection to the conditions being amended to state more explicitly what is required, and the Tribunal has concluded that such rewording is appropriate. The applicants' expressions of frustration on why they consider their previous subdivision approval lapsed are noted, but the Tribunal is of the view that, with the assistance of professionals with appropriate qualifications, competence and experience in subdivision, the requirements to clear the imposed conditions, as amended, can be determined and the approved subdivision can be completed.
The applicants made a submission seeking an extension of the period within which conditions imposed are to be satisfied, because of the time the conditions have been under review. Pursuant to s 143(1) of the PD Act, the respondent approved the plan of subdivision and listed the conditions it requires the subdivider to satisfy. It is not the approval of the plan of subdivision that is under review, but certain of the conditions. The Tribunal considers that it cannot vary the time to satisfy the conditions when the prescribed period for currency of the approval of the plan of subdivision is set at four years, pursuant to s 145(2) of the PD Act. In any event, there still remains three years within which the conditions imposed can be addressed and a diagram or plan of survey of the subdivision lodged with the respondent as required by s 145(1) of the PD Act.

Orders

The Tribunal has decided to uphold the application for review in part by deleting conditions 3, 4, 6 and 7 from the Western Australian Planning Commission's subdivision approval of 14 July 2011, as amended by its resolution of 14 February 2012 and imposing the following replacement conditions 3, 4, 6 and 7:
3.Alfred Street abutting proposed Lots 6 8 as shown on the approved plan of subdivision being constructed and drained at the applicant/owner's cost to a residential standard of 6.1 metre wide asphalt, semimountable kerbing with formal stormwater drainage, to detail determined at the design stage. As an alternative the WAPC is prepared to accept the applicant/owner paying to the local government the cost of such road works as estimated by the local government subject to the local government providing formal assurance to the WAPC confirming that the works will be completed within a reasonable period as agreed by the WAPC.
4.The culdesac head for Alfred Street being constructed and drained to a residential standard including a 9 metre radius, semimountable kerbing, asphalt and stormwater drainage subject to detailed design. The culdesac head is to extend only to the western boundary of Lot 8. As an alternative, the WAPC is prepared to accept the applicant/owner paying to the local government the cost of such road works as estimated by the local government subject to the local government providing formal assurance to the WAPC confirming that the works will be completed within a reasonable period as agreed by the WAPC.
6.The provision of two street lights along Alfred Street abutting the proposed Lots 6 8 shown on the approved plan of subdivision, one light adjacent to the boundary between Lot 6 and Lot 7 and one light adjacent to the culdesac head, to the specifications of the local government. As an alternative, the WAPC is prepared to accept the applicant/owner paying to the local government the cost of such works as estimated by the local government subject to the local government providing formal assurance to the WAPC confirming that the works will be completed within a reasonable period as agreed by the WAPC.
7.Arrangements being made with the local government for the provision of footpaths abutting part of the subdivision area to the specification of the local government. As an alternative, the WAPC is prepared to accept the applicant/owner paying to the local government the cost of such works as estimated by the local government subject to the local government providing formal assurance to the WAPC confirming that the works will be completed within a reasonable period as agreed by the WAPC. The scope and proportional share of the works and/or cost contributions shall be as follows:
(i)The applicant is responsible for contributing 50% of the cost of providing a footpath along William Road abutting proposed Lots 3 5.
(ii)The applicant is responsible for constructing the footpath along Alfred Street abutting Lots 6 8 to terminate at the western boundary of Lot 8.

I certify that this and the preceding [91] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER