Hart & Anor and Western Australian Planning Commission

[2007] WASAT 187

JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL
STREAM	:	DEVELOPMENT & RESOURCES
ACT	:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION	:	HART & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 187
MEMBER	:	JUSTICE M L BARKER (PRESIDENT)
HEARD	:	DETERMINED ON THE DOCUMENTS
DELIVERED	:	18 JULY 2007
FILE NO/S	:	DR 225 of 2007

BETWEEN : STEVEN JAMES HART

SHARON FREDRICA HART

Applicants

AND

WESTERN AUSTRALIAN PLANNING
COMMISSION

Respondent

Catchwords:

Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Three lot subdivision of residential zone land in country town - Subdivision application refused by Tribunal - Policy mandates reticulated sewerage subject to exceptions - Exception for small infill subdivision where there is no potential for the creation of more than four additional lots in the immediate vicinity - Whether Tribunal misconstrued provision - Whether subdivision satisfies provision

[2007] WASAT 187

Legislation:

Planning and Development Act 2005 (WA), s 138, s 138(3), s 144(2), s 244,
s 244(3)
State Administrative Tribunal Act 2004 (WA), s 3(1)
State Administrative Tribunal Rules 2004 (WA), r 10

Draft Country Sewerage Policy, cl 5.1

Result:

Application for review allowed subdivision approval is granted subject to conditions

Category: B

Representation:

Counsel:

Applicants	:	Mr Sri Ramanathan (Acting as Agent)
Respondent	:	Mr T Sharp

Solicitors:

Applicants : Sri-Nathan & Associates Pty Ltd (Planning

Consultants)

Respondent : State Solicitor's Office

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

Hart & Anor and Western Australian Planning Commission [2007] WASAT 114 Landpark Holdings Pty Ltd and Western Australian Planning Commission

[2007] WASAT 130

Nicholls and Western Australian Planning Commission [2005] WASAT 40;

(2005) 149 LGERA 117

Rocca & Anor and Western Australian Planning Commission

[2007] WASAT 110

[2007] WASAT 187

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1              Mr and Mrs Hart, who were unsuccessful in seeking review by the

Tribunal of the refusal of a subdivision application, sought review of the Tribunal's determination by the President upon a matter involving a question of law.

2              The President determined that the Tribunal erred in the interpretation

of a provision of a policy which creates an exception to the mandatory
provision of reticulated sewerage.

3              The President determined that subdivision approval should be

granted, because the proposed subdivision satisfies the policy provision which creates the exception to the mandatory provision of reticulated sewerage. There is no potential for the creation of more than four additional lots in the immediate vicinity so that the proposal completes rather than extends the existing pattern of subdivision. The proposed lot sizes are consistent with the existing pattern of subdivision.

4              The application for review was allowed. The decision and orders of

the Tribunal were revoked and a decision and orders were substituted
granting subdivision approval subject to conditions.

Application for review by President

1. On 21 June 2007, Mr and Mrs Hart filed an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 18 May 2007 in which it refused Mr and Mrs Hart's application for the subdivision of a 4036 square metre residential zoned lot in Pool Street, York into two lots of 1345 square metres and a third lot of 1346 square metres: see Hart & Anor and Western Australian Planning Commission [2007] WASAT 114. Section 244 of the PD Act enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr L Graham who is not a legally qualified member.

6              The application for review by the President was filed three days out

of time: see PD Act s 244(3). The Western Australian Planning Commission (Commission) does not oppose the grant of an extension of

[2007] WASAT 187

time to bring the application for review. I consider that it is appropriate to extend the time for commencement of these proceedings under r 10 of the State Administrative Tribunal Rules 2004 (WA), particularly given the short period of delay and that there is an arguable case for review in relation to one of Mr and Mrs Hart's grounds.

7              In their application for review by the President, Mr and Mrs Hart do

not identify the question or questions of law said to be involved as is required by par [7] of Practice Note 4. However, it appears from their application that Mr and Mrs Hart seek to raise two substantive grounds for review which can be formulated as follows:

1. The Tribunal erred in its application of s 138 of the PD Act.

2.          The Tribunal erred in its interpretation of the exception set out in cl 5.1 of the draft Country Sewerage Policy (DCSP).

8              In their application, Mr and Mrs Hart seek an oral hearing to assist

me in reviewing the determination in this matter. In contrast, the Commission's preference is for the matter to be dealt with on the papers. I do not require an oral hearing in order to resolve the application. For reasons set out below, Mr and Mrs Hart's first ground is misconceived while their second ground is made out. I consider that subdivision approval should be granted subject to conditions.

Section 138 of the PD Act

9              Mr Sri Ramanathan, a town planner who represented Mr and

Mrs Hart, contends that "the provisions of section 138 of the [PD] Act have been upheld", which I take to be a submission that one or more of the exceptions set out in s 138(3) of the PD Act have been established.

10            As the Tribunal observed in Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110 at [29], s 138 of the PD Act effected a significant change in planning law concerning subdivision in Western Australia. Where approval of a subdivision conflicts with a provision of a local planning scheme the subdivision is prohibited unless one of the six exceptions set out in s 138(3) is established; see also Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 at [16]-[28].

11            However, Mr and Mrs Hart's first ground of review is misconceived.

The Commission did not contend, and the Tribunal did not find, that the proposed subdivision conflicts with a provision of a local planning

[2007] WASAT 187

scheme. The question of whether one or more of the exceptions set out in

s 138(3) of the PD Act is established did not arise.

Clause 5.1 of the DCSP

1. The Tribunal refused subdivision approval for the following reasons set out at [77]-[78] of its reasons for decision:

   "In summary, the Tribunal concludes that, although the subdivision proposed would, of itself, accord with the lot size provisions of an R10 coding under the Codes and TPS 2, and on-site effluent disposal could be safely accommodated on each of the proposed lots, the proposal does not accord with the "Small Infill" provisions of DCSP.

   Such being the case, and having regard to the inevitability of the York 2A infill sewerage program being put into place sometime in the next year or so, any approval at this point in time could give rise to further similar applications for subdivision in the locality. This would not assist the State's infill sewerage program in York."

2. At [38], the Tribunal found that:

   "The DCSP is clearly a seriously-entertained government document and, when finalised, will represent State policy on country sewerage."

14            At [37], the Tribunal referred to the evidence of Mr AL Tan, the

officer responsible for the administration of the Country Sewerage Policies at the Department of Health, that the DCSP is expected to be finalised within five to six months. At [70], the Tribunal found "that it is the DCSP with its exemption provisions that should be an important consideration in the determination of this review".

15            The Tribunal found at [42] – and it is not in dispute before me – that

the provision of reticulated sewerage is mandatory under the DCSP, subject to stated exceptions. Mr and Mrs Hart contended before the Tribunal – and contend before me – that the proposed subdivision satisfies the exception stated in cl 5.1 of the DCSP which states as follows:

"Proposals for small infill subdivision or density development can be considered where there is no potential for the creation of more than four additional lots, dwellings or single residential equivalents in the immediate vicinity (generally interpreted as

[2007] WASAT 187

within the street block), so that the proposal completes rather than extends an existing pattern of subdivision. Lot sizes and land use shall be consistent with the existing pattern of subdivision or development."

1. The Tribunal determined that the proposed subdivision does not comply with cl 5.1 of the DCSP for the following reasons stated at [44]:

   "Taking into account the three lots the subject of this review, there is clearly the "potential" for at least two additional lots to be created elsewhere in the street block, making a total of five additional lots to be subdivided from the subject land and two of the corner lots described in [11]. Also, there is clearly the "potential" for further lots to be subdivided from the 1.4651 hectare lot "in the immediate vicinity" (directly opposite) as described in [13]."

2. It is clear from these reasons that the Tribunal erred in its interpretation of cl 5.1 of the DCSP in three respects.

18            First, the Tribunal interpreted the words "additional lots" as

including lots on the land that is the subject of the subdivision application. However, it is clear from the clause that these words refer to lots that are additional to the relevant proposal for the small infill subdivision.

19            Second, the Tribunal interpreted the words "additional lots" such that

in a subdivision of one lot into three the words refer to all three proposed lots. However, in a subdivision of one lot into three, the words "additional lots" can only refer to the number of lots additional to one.

20            Third, the Tribunal interpreted the words "immediate vicinity" as

including land on the opposite side of Pool Street, whereas the bracketed words in the clause do not relevantly allow this interpretation. Although the word "generally" would allow some flexibility, the Tribunal's reasons do not disclose why flexibility was appropriately exercised to include land outside the street block.

21            The interpretation of cl 5.1 of the DCSP is a matter involving a

question of law. It follows that I may affirm the Tribunal's decision or revoke it and substitute another decision the Tribunal could have made in relation to the matter: PD Act s 244(2).

[2007] WASAT 187

Should subdivision approval be granted?

22            Attachment A to these reasons is a caddastral plan of the street block.

Attachment B is a copy of the proposed plan of subdivision. Attachment A shows that the land that is the subject of the proposed subdivision is the largest allotment in the street block and that its size and dimensions are inconsistent with the existing pattern of subdivision in the street block.

23            As the Tribunal found at [11], the majority of lots in the street block

are in the order of 1200 square metres to 1400 square metres in area. Other than the land which is the subject of the subdivision application, there are only three lots within the street block that have a larger area, namely the lot at the corner of New Street and Panmure Road (2446 square metres), the lot to its south (2716 square metres) and the lot at the corner of Suburban Road/Newcastle Street and Pool Street (2299 square metres).

24            The streetblock is coded "R10" under the applicable local planning

scheme. Table 1 of the Residential Design Codes of Western Australia (2002) (Codes) states that the minimum area and average area per dwelling in the R10 code are 875 square metres and 1000 square metres. As the Tribunal said in Landpark Holdings Pty Ltd and Western Australian Planning Commission at [26], the Codes contemplate that the Commission – and the Tribunal on review – may approve a subdivision that involves allotments that are smaller than the minimum site area that corresponds to residential density code that applies to the land for development purposes. However, as the Tribunal went on to say at [28], the Commission – and the Tribunal on review – must give due regard to the obvious expectation in the standard planning scheme clause requiring residential development to conform to the provisions of the Codes that generally the development of a single house on land with a designated residential density coding requires the minimum site area stated for that code in Table 1 of the Codes.

25            It follows that there is relevantly only potential for the creation of

three additional lots in the immediate vicinity for the purposes of cl 5.1 of the DCSP. As noted earlier, on their proper interpretation, the words "additional lots" in the clause refer to lots that are additional to the proposed small infill subdivision. They do not relevantly include the two additional lots that would be created by the proposed subdivision.

26            As noted earlier, the Tribunal found that the proposed subdivision

would accord with the lot size provisions of an R10 coding under the

[2007] WASAT 187

Codes and the applicable local planning scheme. The Tribunal also found that on-site effluent disposal could be safely accommodated on each of the proposed lots. The Tribunal refused subdivision approval because "the proposal does not accord with the 'Small Infill' provisions of DCSP" (at [77]) and "could give rise to further similar applications for subdivision in the locality" (at [78]).

27            However, contrary to the Tribunal's finding, the proposed

subdivision satisfies the small infill subdivision exception to the mandatory provision of reticulated sewerage in cl 5.1 of the DCSP, because:

• the proposed subdivision is a "small infill subdivision";

• there is no potential for the creation of more than four additional lots in the immediate vicinity given the lot sizes and residential density coding of the land in the streetblock so that "the proposal completes rather than extends the existing pattern of subdivision"; and

• the proposed "lot sizes ... [are] consistent with the existing pattern of subdivision".

28            Furthermore, as the proposed subdivision satisfies the exception in

the policy, it is relevantly unobjectionable with the consequence that adverse planning precedence is not a relevant consideration: Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74].

1. It follows that subdivision approval should be granted subject to the conditions proposed by the Commission.

Conclusion

30            The Tribunal erred in law in its interpretation of cl 5.1 of the DCSP.

The words "additional lots" do not include lots on the land that is the subject of this subdivision application and do not include the number of existing lots on any land in the vicinity. The vicinity does not include land outside the streetblock.

31            The Tribunal's decision to refuse subdivision approval should be

revoked and a decision should be substituted granted subdivision approval
subject to conditions, because:

[2007] WASAT 187

• the subdivision accords with the lot size provisions of an R10 coding under the Codes and the applicable local planning scheme;

• on-site effluent disposal can be safely accommodated on each of the proposed lots;

• the subdivision satisfies the "Small Infill" exception to mandatory provision of reticulated sewerage in cl 5.1 of the DCSP; and

• adverse planning precedent is not a relevant consideration in the circumstances of this case.

Orders

1. I make the following orders:

1.	Pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA), the time for commencement of these proceedings is extended until 21 June 2007.
2.	The application for review by the President is allowed.
3.	The decision and orders made by the Tribunal on 18 May 2007 in Hart & Anor and Western Australian Planning Commission DR 328 of 2006 are revoked and a decision is substituted that subdivision approval is granted for the subdivision of Lot P7 (10) Pool Street, York into three allotments of 1345 square metres, 1345 square metres and 1346 square metres subject to the following conditions:

1.          Suitable arrangements being made with the local government for the provision of vehicular crossover(s) and culverts to service the lot(s) being shown on the approved plan of subdivision. (Local Government)

2.          All buildings and effluent disposal systems, having the necessary clearance from the new boundaries as required under the relevant legislation. (Local Government)

[2007] WASAT 187

3.          The applicant/owner is to provide a geotechnical report certifying that the land is physically capable of accommodating on-site effluent disposal prior to the commencement of site works. (Local Government)

4.          Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of underground electricity supply service to the lot(s) on the approved plan of subdivision. If an existing aerial electricity cable servicing the land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will need to be made for the removal and relocation of that cable. (Western Power)

5.          Suitable arrangements being made with the Water Corporation so that provision of a suitable water service will be available to lot(s) shown on the approved plan of subdivision. (Water Corporation)

6.          Notification in the form of a section 70A notification, pursuant to the Transfer of Lands Act 1892 (as amended) is to be placed on the Certificate(s) of Title of the proposed lot(s) advising that reticulated sewerage connection is not available to the lots, and a suitable on-site effluent disposal system complying with the specifications of the Health Department designed for long term use is required to service any new development on each lot. Notice of this notification is to be included on the Deposited Plan. (Western Australian Planning Commission)

7.          The applicant/owner of the land shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that provision of a reticulated sewerage service will not be available to the lots and that all

[2007] WASAT 187

future dwellings on the lots will need to be connected to on-site effluent disposal system(s). (Local Government)

[2007] WASAT 187

Attachment A – Caddastral Plan

[2007] WASAT 187

Attachment B – Proposed Plan of Subdivision

[2007] WASAT 187

I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT