High Street Medical Centre Pty Ltd and Western Australian Planning Commission
[2009] WASAT 147
•4 AUGUST 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: HIGH STREET MEDICAL CENTRE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 147
MEMBER: MR D R PARRY (SENIOR MEMBER)
DELIVERED : 4 AUGUST 2009
FILE NO/S: DR 120 of 2009
BETWEEN: HIGH STREET MEDICAL CENTRE PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Survey strata subdivision - Existing authorised grouped dwelling development - Proposed survey strata subdivision into two lots - Interpretation and application of cl 6.1.3 P3.2 of the Residential Design Codes of Western Australia (2008) - Whether 'the development on the resulting survey strata ... lots is consistent with the objectives of the relevant design elements of the codes, and the orderly and proper planning of the locality' - Whether the expression 'the development' includes likely future development or only existing development - Whether proposed lots are reasonably capable of development - Precedent
Legislation:
City of Nedlands Town Planning Scheme No 2, cl 1.3, cl 4.1, cl 5.3.1(b), cl 5.3.1(d)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 135, s 251(1)
Residential Design Codes of Western Australia (2002)
Residential Design Codes of Western Australia (2008), cl 6.1.1 A1.1, cl 6.1, cl 6.1.3 A3iv, cl 6.1.3 P3.1, cl 6.1.3 P3.2, Table 1
Result:
Application for review allowed and survey strata subdivision approval granted subject to conditions
Category: A
Representation:
Counsel:
Applicant: Mr J Algeri (Agent)
Respondent: Mr M Logan (Public Sector Employee)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Cornhill and Western Australian Planning Commission [2009] WASAT 9
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Sweetland and Town of Cambridge [2005] WASAT 278
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This case concerned an application for the survey strata subdivision of a lot into two survey strata lots and common property. The lot contained an approved grouped dwelling development built in the 1960s.
The application was largely based on cl 6.1.3 P3.2 of the Residential Design Codes of Western Australia (2008) which was a new provision introduced in 2008 and which had not previously been the subject of consideration by the Tribunal. Clause 6.1.3 P3.2 stated as follows:
The [Western Australian Planning Commission] or a council may approve the creation of a survey strata lot or strata lot for an existing authorised grouped dwelling or multiple dwelling development of a lesser minimum and average site area than that specified in table 1, where, in the opinion of the [Western Australian Planning Commission] or the council, the development on the resulting survey strata or strata lots is consistent with the objectives of the relevant design elements of the codes, and the orderly and proper planning of the locality.
The parties agreed that the existing grouped dwelling development is 'an existing authorised grouped dwelling … development of a lesser minimum and average site area than that specified in table 1'. The site was subject to a split coding of 'R12.5/R20'. The site area of one of the proposed survey strata lots was equivalent to the minimum site area for the R25 code and the site area of the other proposed survey strata lot and the average area of the lots was marginally less than that relevantly contemplated by the R20 code.
The Tribunal determined that the term 'the development' in cl 6.1.3 P3.2 of the Residential Design Codes of Western Australia (2008) refers to the 'existing authorised grouped dwelling … development' and does not refer to likely future development on the resulting survey strata lots. The Tribunal also observed that cl 6.1.3 P3.2 of the Residential Design Codes of Western Australia (2008) is premised on the fact that an existing authorised grouped dwelling development is deficient in comparison to the minimum and average lot sizes specified for the relevant code and that the clause does not limit the extent of variation to the minimum lot sizes.
The Tribunal found that the development on the resulting survey strata lots is consistent with the objectives of the relevant design elements of the Residential Design Codes of Western Australia (2008). In particular, it is in line with community expectations about the type and density of residential development. The Tribunal also found that the development is consistent with the orderly and proper planning of the locality. The existing character and density of residential land would be retained and the development would have little impact on amenity.
The Tribunal found that the proposed lots are reasonably capable of development in accordance with applicable planning controls and that, if redevelopment occurred following survey strata subdivision, then it will lead to an improvement in the visual amenity of the site and locality by replacing two nondescript 1960s dwellings with two contemporary dwellings.
The Tribunal concluded that the proposal was consistent with orderly and proper planning and warranted conditional approval.
Background
On 21 April 1964, the City of Nedlands (City or Council) approved the construction of a single‑storey building comprising two attached dwellings, then known as a 'duplex development' and now referred to as a 'grouped dwelling development', at No 28 (Lot 74) Odern Crescent, Swanbourne (site). The grouped dwelling development was constructed and remains on the site.
The site has a frontage of 19.82 metres, a depth of approximately 50 metres and an area of 852 square metres. The site is located directly across the road from Swanbourne beach and foreshore reserve.
The street block in which the site is located is characterised by large dwellings, built in a variety of architectural styles and in different periods, on lots ranging in size from 819 square metres to 1,017 square metres. Four of the 22 lots in the street block, including the site, comprise grouped dwelling developments.
The site is zoned 'Urban' under the Metropolitan Region Scheme and 'Residential' with a residential density coding of 'R12.5/R20' under the City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme). Clause 5.3.1(b) of the Scheme states that the Council may approve a grouped dwelling development containing a maximum of two dwellings 'subject to R20 requirements' on land coded 'R12.5/R20' if the following three conditions are satisfied:
(i)grouped dwellings do not occur at a frequency greater than one lot in five of all lots within the area bounded by four streets or other natural boundary;
(ii)grouped dwellings are separated from any other grouped dwelling by not less than two single dwellings in the same street frontage; and
(iii)the setback requirements of the first-mentioned R.Code designation are observed.
'R20 requirements' under the Residential Design Codes of Western Australia (2008) (Codes) include a minimum site area of 440 square metres and an average site area of 500 square metres (or, in the case of grouped dwellings in areas coded R20 as at 4 October 2002, which relevantly includes the site, 450 square metres) (cl 6.1.1 A1.1, cl 6.1.3 A3iv and Table 1 of the Codes).
Although the average site area in the existing grouped dwelling development on the site is 426 square metres, rather than 450 square metres, the City has certified that the site has the benefit of 'non-conforming use rights' under cl 4.1 of the Scheme, because it was being lawfully used for a grouped dwelling development at the time when the Scheme commenced.
It is common ground in these proceedings, and a view shared by Ms Coralie Anderson, the City's Senior Statutory Planner who gave evidence on behalf of the Western Australian Planning Commission (Commission), that the existing grouped dwelling on the site satisfies the three conditions stated in cl 5.3.1(b) of TPS 2.
Survey strata subdivision application
In April 2008, the Codes commenced and replaced the Residential Design Codes of Western Australia (2002). The Codes introduced the following new provision in relation to variation to minimum and average site area requirements:
The [Commission] or a council may approve the creation of a survey strata lot or strata lot for an existing authorised grouped dwelling or multiple dwelling development of a lesser minimum and average site area than that specified in table 1, where, in the opinion of the [Commission] or the council, the development on the resulting survey strata or strata lots is consistent with the objectives of the relevant design elements of the codes, and the orderly and proper planning of the locality. (Clause 6.1.3 P3.2)
On 13 November 2008, the owner of the site, High Street Medical Centre Pty Ltd, applied to the Commission for approval for the survey strata subdivision of the site into two survey strata lots and common property under s 135 of the Planning and Development Act 2005 (WA) (PD Act). The survey strata subdivision application was largely based on cl 6.1.3 P3.2 of the Codes.
Proposed Lot 1 would have an area of 331 square metres and would comprise the front existing grouped dwelling. Proposed Lot 2 would have an area of 425 square metres and would comprise the rear half of the site including the rear existing grouped dwelling. The proposed boundary between Lot 1 and Lot 2 would traverse, in part, the centre line of the internal wall between the two existing grouped dwellings. The remaining 96 square metres of the site, comprising part of the driveway, is proposed as common property.
On 9 December 2008, the Council resolved that it does not support the proposed survey strata subdivision for the following reasons:
(i)Given its density coding the lot is not large enough to be subdivided into two lots.
(ii)The resulting lots are smaller than the average or minimum areas required under the density codes applicable to the lot.
On 3 March 2009, the Commission refused the survey strata subdivision application for the following reasons:
1.The proposed subdivision does not comply with the Western Australian Planning Commission's Policy DC 1.3: 'Strata Titles' and Policy DC 2.2: 'Residential Subdivision', provisions of Statement of Planning Policy No 1 'State Planning Framework' (Variation No. 2), by reason that:
(i)the proposed lot sizes do not comply with the minimum or average lot size requirement for grouped dwelling lots in an area coded R12.5 as specified by the Residential Design Codes (2008); and
(ii)the proposed minimum and average lot sizes would result in a variation greater than the variation provisions set out in the Residential Design Codes (2008).
2.The proposed survey strata does not comply with the City of Nedlands Town Planning Scheme No. 2 by reason that:
(i)the proposed strata lots [are] below both the minimum and average areas of lot per dwelling required by the R12.5 coding in the City of Nedlands Town Planning Scheme No. 2; and
(ii)specific provisions of the Scheme only supports [sic] survey strata or green title subdivision of land in dual‑coded areas in accordance with the lower coding.
3.Approval of the subdivision would set an undesirable precedent for further subdivision of other lots in the locality which would undermine the objectives and provisions of the City of Nedlands Town Planning Scheme No. 2.
On 2 April 2009, High Street Medical Centre Pty Ltd sought review by the Tribunal of the Commission's decision in accordance with s 251(1) of the PD Act.
It is common ground between the parties that a key consideration in relation to whether the survey strata subdivision application should be approved is whether the proposal satisfies cl 6.1.3 P3.2 of the Codes. It is convenient, therefore, to commence with an analysis of this issue.
Does the proposal satisfy cl 6.1.3 P3.2 of the Codes?
As noted earlier, cl 6.1.3 P3.2 of the Codes was introduced in April 2008. This is the first review application in which the interpretation and application of this provision has arisen.
It is common ground between the parties that the existing grouped dwelling development on the site is 'an existing authorised grouped dwelling … development of a lesser minimum and average site area than that specified in table 1'. The parties disagreed, however, in relation to whether 'the development on the resulting survey strata … lots is consistent with the objectives of the relevant design elements of the Codes, and the orderly and proper planning of the locality'.
The parties also disagreed in relation to the proper interpretation of the term 'the development'. High Street Medical Centre Pty Ltd argued that the expression 'the development' refers to the 'existing authorised grouped dwelling … development', whereas the Commission argued that the expression refers, or refers also, to likely future development. The parties agreed, however, that approval of the proposed survey strata subdivision is likely to facilitate redevelopment of each of the proposed lots for a new dwelling.
On its proper interpretation, the expression 'the development' in cl 6.1.3 P3.2 of the Codes refers to the 'existing authorised grouped dwelling … development'. The expression does not refer to likely future development on the resulting survey strata lots. There are three textual indications which support this interpretation.
First, the interpretation is supported by the flow of the clause. When the provision is read from beginning to end, it is apparent that 'the development' and the 'existing authorised grouped dwelling … development' are intended to refer to the same building or buildings.
Second, the clause states that the Commission may approve the creation of a survey strata lot 'for an existing authorised grouped dwelling … development' (emphasis added). As the resulting survey strata lot is for the existing authorised grouped dwelling development, 'the development on the resulting survey strata … lots' is the existing development.
Third, the clause requires the Commission to be of the opinion that the development on the resulting survey strata lots 'is consistent with' (emphasis added) relevant objectives and the orderly and proper planning of the locality. The use of the present tense ‑ 'is' ‑ indicates that 'the development' refers to the existing development.
A purposive interpretation of the provision arrives at the same result. The apparent purpose of the clause is to enable each dwelling in an existing authorised grouped dwelling or multiple dwelling development of lesser minimum or average site area than specified in Table 1 to be the subject of an individual strata land title and, therefore, separate disposition. If survey strata or strata approval is granted for an existing development, then no further planning approval is required for the continued use of each dwelling on its separate title. It is sensible, therefore, for the provision to require an assessment as to whether the existing grouped or multiple dwelling development on the resulting survey strata or strata lots is consistent with the objectives of the relevant design elements of the Codes and the orderly and proper planning of the locality. However, if, ultimately, a redevelopment of a resulting survey strata or strata lot is proposed, then a development application will be required to be lodged and assessed.
This is not to say, however, that likely future development of the resulting survey strata lots is irrelevant in relation to whether strata subdivision approval should be granted; far from it. As discussed below, the question of whether a proposed survey strata lot is reasonably capable of development in accordance with applicable planning controls is a matter for consideration in the exercise of planning discretion. However, it is not a consideration under cl 6.1.3 P3.2 of the Codes.
Each of the three town planning expert witnesses who gave evidence, Mr Joe Algeri, a consultant town planner who gave evidence for High Street Medical Centre Pty Ltd, Mr Jason Bouwhuis, a town planner and officer of the Department of Planning called on behalf of the Commission, and Ms Anderson, agreed that the existing grouped dwelling development on the site is broadly consistent with the objectives of the relevant design elements of the Codes. In particular, the expert witnesses agreed that the existing grouped dwelling development satisfies the objective of the housing density requirements in cl 6.1 of the Codes 'to ensure that residential development occurs in line with community expectations about its type and density'. The Tribunal concurs.
However, Mr Bouwhuis considered that the development on the resulting survey strata lots would not be consistent with the orderly and proper planning of the locality. Mr Bouwhuis noted that, although the existing development satisfies the three requirements set out in cl 5.3.1(b) of TPS 2, the development does not accord with 'R.20 requirements'. In particular, the area of proposed Lot 1 reflects an R25, rather than R20, density coding. Furthermore, the area of proposed Lot 2 is approximately 3% less than the minimum site area of 440 square metres specified for the R20 code in Table 1 of the Codes, and the average site area of 426 square metres is approximately 5% less than the average site area of 450 square metres specified by cl 6.1.3 A3iv of the Codes.
Mr Bouwhuis also referred to cl 5.3.1(d) of TPS 2 which states as follows:
Recognising that the [Commission] determines subdivision applications, in order to protect the amenity of dual-coded areas (R10/R20, R12.5/R20 and R12.5/R40) Council will only support Survey Strata or Green Title subdivision of land in accordance with the lower coding.
Mr Bouwhuis noted that the proposed minimum and average lot sizes are substantially deficient in comparison to the minimum and average lot sizes specified for the R12.5 code in Table 1 of the Codes. Proposed Lot 1 is 52.7% deficient, proposed Lot 2 is 39.3% deficient, and the average lot size proposed is approximately half that which is required.
However, it is important to note that cl 6.1.3 P3.2 of the Codes is premised on the fact that an existing authorised grouped dwelling or multiple dwelling development is 'of a lesser minimum and average site area than that specified in Table 1'. Furthermore, in contrast to cl 6.1.3 P3.1 of the Codes, which limits discretion in relation to variation to minimum and average site areas to no more than 5%, cl 6.1.3 P3.2 of the Codes does not limit the extent of variation.
Clause 1.3 of TPS 2 states, in relation to the intent of the Scheme, that 'it is proposed to maintain the existing character and density of residential land … '. The proposed survey strata subdivision would maintain the existing character and density of the site as a grouped dwelling development site and the existing character and density of the locality of the site. In this regard, the definition of 'grouped dwelling' in the Codes 'includes a dwelling on a survey strata with common property'. Consequently, each of the existing grouped dwellings would remain 'grouped dwellings' following survey strata subdivision.
Clause 5.3.1(d) of TPS 2 appears to be inconsistent with cl 5.3.1(b) of the Scheme and the intent of the Scheme expressed in cl 1.3. In any case, cl 5.3.1(d) refers only to Council's support for a proposed subdivision. It does not fetter the discretion of the Commission, or the Tribunal on review, to approve an appropriate survey strata subdivision. Furthermore, the stated intent of cl 5.3.1(d) of TPS 2 is 'to protect the amenity of the dual-coded areas'. As Mr Algeri observed, the proposed survey strata subdivision will not change the density of the site and 'will have little impact on amenity or community expectations of residential development'. This evidence was not questioned or contradicted. Land that has been used for the past 45 years to accommodate two dwellings will continue to be used for that purpose.
The Tribunal, therefore, finds that the development on the resulting survey strata lots is consistent with the objectives of the relevant design elements of the Codes and with the orderly and proper planning of the locality. Clause 6.1.3 P3.2 of the Codes is, therefore, satisfied in the circumstances of this case.
Should the proposed survey strata subdivision be approved in the exercise of planning discretion?
The Commission presented four principal arguments as to why the proposal would be contrary to orderly and proper planning and should, therefore, be refused in the exercise of planning discretion.
First, the Commission argued that the proposal would create significantly undersized lots, well below the lot sizes contemplated in TPS 2 and well below characteristic lot sizes in the locality. The Commission contended that the area has a stable character and density and that the proposal would be contrary to those qualities. It relied on Mr Bouwhuis' evidence that 'the creation of two survey strata lots of this size will generate an aberration in the lot size characteristics of the street block'.
However, as noted earlier, the street block includes four properties, including the site, that comprise grouped dwelling developments. Two of these developments predate TPS 2 and two were approved under cl 5.3.1(b) of TPS 2. While it is correct, as Mr Bouwhuis observed, that the average lot size in the street block, namely, 894 square metres, is more than double the lot sizes proposed in this application, the housing density reflected in the proposed survey strata subdivision is consistent with the character and density of the site and of the three other properties in the street block on which this form of development has been approved. Furthermore, the conditions in cl 5.3.1(b) of TPS 2 have ensured that the grouped dwelling developments in the street block have not substantially altered the predominant character of the locality, namely, large dwellings on large lots.
Second, the Commission argued, relying in particular on Ms Anderson's evidence, that the proposed survey strata subdivision would create constrained development sites, particularly proposed Lot 1 with an area of 331 square metres. Ms Anderson gave evidence that, having regard to setback requirements, the proposed lot sizes of 331 square metres and 425 square metres 'will effectively be reduced to building envelopes of 126 square metres for the front lot and 336 square metres for the rear lot'. Ms Anderson considered that any future development proposal consistent with the expectations of the Swanbourne locality:
… is likely to require significant variations from the Acceptable Development provisions of the [Codes], to such an extent that the objectives of the Design Elements may no longer be met, significantly increasing the likelihood of refusals and subsequent appeals.
Ms Anderson referred, in particular, to the boundary setback requirements, open space requirements and design for climate requirements of the Codes.
In contrast, while Mr Algeri acknowledged that the building envelope for Lot 1 would be relatively small, he considered that it would not negate the ability to develop an appropriate two‑storey dwelling on that lot. Mr Algeri also expressed concerns in relation to Ms Anderson's reference to 'variations from the Acceptable Development provisions of the [Codes]'. Mr Algeri observed that the Acceptable Development provisions of the Codes are but one way of achieving the associated Performance Criteria. In Mr Algeri's opinion, the proposed lot sizes are not 'unduly restrictive'.
The Tribunal prefers Mr Algeri's evidence over Ms Anderson's evidence in relation to this issue for the following three reasons.
First, Ms Anderson's evidence proceeded on a misunderstanding as to the proper interpretation and application of the Codes. As the Tribunal held in Sweetland and Town of Cambridge [2005] WASAT 278 at [36]:
[W]here there is non-compliance with the Acceptable Development provisions, it is not appropriate to test the matter by reference to the departure from those requirements. Rather, the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective: Choice Constructions Pty Ltd v Town of Vincent [2003] WATPAT 71; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4.
This statement was endorsed in Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 at [30]. Similarly, the following explanatory guideline to the Codes is correct:
Given that the acceptable development provisions illustrate only one way of satisfactorily meeting the corresponding performance criterion, the use of an acceptable development provision as a yardstick or evaluation standard during a performance criteria assessment is generally not appropriate. (Explanatory Guidelines Pt 1 page 4).
An Acceptable Development provision of the Codes is only one way to achieve the objective of the relevant element. The objective can also be achieved by satisfaction of the Performance Criteria. In assessing whether a proposed development satisfies the Performance Criteria because it does not conform to the Acceptable Development provision in relation to an element, it is wrong to consider that the development requires 'variations' in relation to the Acceptable Development provision. The extent to which a proposal 'exceeds' the Acceptable Development provision is not a relevant consideration, as a starting point or otherwise, in relation to whether it satisfies the corresponding Performance Criteria.
Second, Mr Algeri has considerably longer and broader experience as a town planner than Ms Anderson, having worked variously not only in local government, but also for the Department of Planning and Infrastructure and as a consultant, over 17 years.
Third, cl 3.3.4(d) of the Commission's Policy No. DC 1.3 ‑ Strata Titles (DC 1.3) states that, in the case of survey‑strata lots of less than 350 square metres in area, 'the Commission may require information regarding the arrangement of existing and proposed buildings' in order to assess whether the proposed lot or lots are of such a shape and size as to permit development in accordance with appropriate development standards. However, the Commission did not seek such information in this case.
In consequence, the Tribunal finds that the proposed lots in this case are reasonably capable of development in accordance with applicable planning controls. As Mr Algeri said, while a building envelope of 126 square metres for the proposed Lot 1 is a constraint, it would not preclude the construction of a single two‑storey house on the site. Furthermore, any development application would need to be determined having regard to the Performance Criteria and objectives of the relevant elements of the Codes. When assessing a particular proposal, the consent authority may be satisfied that a more substantial dwelling still conforms to the Codes.
Third, the Commission argued that the Tribunal should place significant weight on the draft City of Nedlands Town Planning Scheme No 3 (draft TPS 3). Ms Anderson gave evidence that, on 27 July 2009, the Council resolved to seek approval from the Commission to advertise draft TPS 3 in a form which would code the site and locality 'R12.5'. Ms Anderson explained that this would not be a 'down coding', because the conditions in cl 5.3.1(b) of TPS 2 would not allow any further grouped dwelling development in the locality.
However, it is not known at this stage whether the Commission will allow draft TPS 3 to be advertised. While it is true that there has been an extensive history in relation to the Council's attempts to progress a new local planning scheme, until the Commission's position in relation to advertising is known, draft TPS 3 could not be regarded as a seriously‑entertained planning proposal. It is, therefore, not a relevant matter for consideration: Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) at [45].
However, even if draft TPS 3 were a seriously‑entertained planning proposal, the proposed coding of the site could only be given very little weight, as advertising and consideration of submissions has not yet taken place.
Finally, in relation to this issue, even if significant weight were given to the proposed coding of the site, as noted earlier, cl 6.1.3 P3.2 of the Codes is premised on the fact that an existing authorised grouped dwelling or multiple dwelling development is 'of a lesser minimum and average site area than that specified in table 1'. Furthermore, as noted earlier, unlike cl 6.1.3 P3.1 of the Codes, cl 6.1.3 P3.2 of the Codes does not specify the extent of variation that is possible. In the circumstances of this case, even if the site were recoded R12.5, having regard to the terms of cl 6.1.3 P3.2 of the Codes, the existing character and density of the site, and the character and density of development in the street block, it would be appropriate to grant approval for survey strata subdivision of the site.
Finally, the Commission argued that approval of the proposed survey strata subdivision would create an adverse planning precedent. However, for reasons discussed earlier, the proposed survey strata subdivision is not objectionable: see Nicholls at [59]; Cornhill and Western Australian Planning Commission [2009] WASAT 9 at [57] ‑ [59]. Precedent is not, therefore, a relevant planning consideration. Furthermore, the Commission has only referred to a single property which has relevantly indistinguishable circumstances from the site, namely, a grouped dwelling development at No 20 and No 20A (Lot 70) Odern Crescent, Swanbourne, to the north of the site. Even if precedent were relevant, therefore, it would not militate against approval.
As the Tribunal found earlier, the proposed survey strata subdivision satisfies cl 6.1.3 P3.2 of the Codes. As also found earlier, survey strata subdivivision of the site would have little impact on amenity or community expectations of residential development. Finally, if, as the planning experts considered likely, approval of the proposal will facilitate redevelopment of the site, then, as Mr Algeri said, it will lead to an improvement in the visual amenity of the site and locality by replacing two nondescript 1960s dwellings with two contemporary dwellings.
It follows that the proposal is consistent with orderly and proper planning and warrants approval.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 3 March 2009 to refuse survey strata plan application no 1949‑08 is set aside and a decision is substituted that approval is granted to the application subject to the following conditions:
1)Measures being taken to the satisfaction of the Western Australian Planning Commission to ensure the identification and protection of any vegetation on the site worthy of retention prior to commencement to site works. (Local Government)
2)All buildings, having the necessary clearance from the new boundaries as required under the relevant legislation. (Local Government)
3)The existing dwellings are to comply with the grouped dwelling requirements of the Residential Design Codes of Western Australia (2008). (Local Government)
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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