HOCKING LAND COMPANY PTY LTD and CITY OF WANNEROO - [2009] WASAT 139

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HOCKING LAND COMPANY PTY LTD and CITY OF WANNEROO [2009] WASAT 139

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 27 MAY 2009
WRITTEN SUBMISSIONS FILED 8 JUNE 2009, 11 JUNE 2009 AND 18 JUNE 2009

DELIVERED : 20 JULY 2009

FILE NO/S: DR 254 of 2008

BETWEEN: HOCKING LAND COMPANY PTY LTD
GUCCE HOLDINGS PTY LTD
WESTEND ASSETS PTY LTD
Applicants
AND
CITY OF WANNEROO
Respondent

Catchwords:

Town planning Strategic planning Structure plan Amendment Land zoned partly 'Urban Development' and partly 'Special Residential' under local planning scheme and classified as 'Special Residential' in Agreed Structure Plan 'Special Residential' zoning and classification transition between suburban residential development and special rural development Proposed amendment of Agreed

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Structure Plan to reclassify part of land from 'Special Residential' to 'Residential R20' Whether Agreed Structure Plan can be amended to reclassify land in a manner that is inconsistent with zoning Test to be applied in structure planning review decision Whether proposed reclassification is inconsistent with orderly and proper planning Whether planning purpose of 'Special Residential' zoning and classification will continue to be met if part of land is reclassified as 'Residential R20' Residential amenity Height of retaining walls Overshadowing Privacy Urban design Battleaxe lot configuration Streetscape Consistency of streetscape Revegetation

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 1.2, cl 3.1.9, cl 3.2, cl 3.2.2, cl 3.19.5, cl 9.1.1, cl 9.7.1, cl 9.8.2, cl 9.12.3, Pt 9, Sch 14
Planning and Development Act 2005 (WA), s 3(1)(c)
State Administrative Tribunal Act 2004 (WA), s 27(2), s 29(1)

Result:

Agreed Local Structure Plan No 6, East Wanneroo Cell 4 (Hocking and Pearsall) is amended subject to the approval of the Western Australian Planning Commission

Category: A

Representation:

Counsel:

Applicants: Mr PJ McQueen with Ms EE McGrath
Respondent: Mr CA Slarke

Solicitors:

Applicants: Lavan Legal
Respondent: McLeods

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

Cornhill and Western Australian Planning Commission [2009] WASAT 9

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Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Thio and Western Australian Planning Commission [2009] WASAT 88

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned a proposal to amend an Agreed Structure Plan to reclassify a strip of land from 'Special Residential' (at a residential density of R2) to 'Residential R20' and to retain the 'Special Residential' classification for the balance of the land.
The principal issues were whether land zoned 'Special Residential' under the local planning scheme could be classified as 'Residential R20' in the Agreed Structure Plan; whether the proposal was consistent with orderly and proper planning; whether the proposal would adversely affect residential amenity; and whether the proposal represented good urban design. The Tribunal was also required to determine a threshold question as to the test that should be applied in the review of a strategic planning decision.
The Tribunal determined that land zoned 'Special Residential' could be classified as 'Residential R20' in the Agreed Structure Plan, because the local planning scheme did not preclude the adoption or amendment of a Structure Plan in the zone, and recognised the potential for conflict between the scheme and a structure plan and gave primacy to the structure plan classification in the event of conflict.
The Tribunal held that the test to be applied for determining whether to amend a structure plan is whether it would be appropriate to do so, having regard to all relevant planning scheme provisions and all relevant planning considerations.
The Tribunal found that the proposal was consistent with orderly and proper planning as the planning objective of the Special Residential zoning and classification, namely, to create a buffer or transition between suburban residential development and Special Rural development, would continue to be met if the amendment were approved, and the amendment promoted the sustainable use and development of land.
The proposal would not have an adverse effect on residential amenity, principally because of the size and orientation of the Special Residential lots and proposed revegetation of those lots.
Finally, the Tribunal determined that the proposal represented good urban design in the circumstances of the case. While two of the Special Residential lots would have a battleaxe configuration, which generally

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reflected poor urban design in suburban residential development, this configuration was appropriate in the circumstances, having regard to the location, size and orientation of the Special Residential lots and the relevant planning policies.

The creation of a balanced streetscape, with R20 housing on each side of the road, was appropriate in terms of urban design.
The Tribunal therefore decided to amend the Agreed Structure Plan subject to the approval of the Western Australian Planning Commission.

Background

Hocking Land Company Pty Ltd, Gucce Holdings Pty Ltd and Westend Assets Pty Ltd (applicants) collectively own two parcels of land in various titles (applicants' land) at the northern edge of the area that is subject to the Agreed Local Structure Plan No 6, East Wanneroo Cell 4 (Hocking and Pearsall) (ASP) under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme). The applicants' two parcels of land are separated from one another by an area classified as 'Public Open Space' under the ASP. The applicants' land and the public open space is generally cleared of vegetation.
The applicants' western parcel of land has an area of approximately 1.57 hectares, is zoned 'Urban Development' under DPS 2, and is classified as 'Special Residential' under the ASP. The western parcel is bounded by Paltara Way to the west, Stockholm Road to the south, the public open space to the east and two allotments which are zoned 'Special Rural' under DPS 2 to the north.
The applicants' eastern parcel of land has an area of approximately 1.5 hectares, is zoned partly 'Urban Development' and partly 'Special Residential' under DPS 2, and is classified as 'Special Residential' under the ASP. The eastern parcel is bounded by the public open space to the west, Stockholm Road to the south, Lenore Road to the east, and two allotments which are zoned zoned 'Special Rural' under DPS 2 to the north.
The area across Stockholm Road to the south of the applicants' land is zoned partly 'Urban Development' and partly 'Residential' under DPS 2 and is classified as 'Residential R20' under the ASP. The land across Stockholm Road to the south of the public open space is zoned 'Residential' under DPS 2 and is classified as 'Residential R30' under the ASP. It appears from an aerial photograph in evidence that subdivisional

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roads have been created in the area to the south of Stockholm Road and that some residential development has taken place in the southern part of that area.

The area to the north of the applicants' land and to the north of the Public Open Space is zoned 'Special Rural' under DPS 2 and is not included in the ASP. This area comprises allotments of approximately one to two hectares.
The objectives for the area classified as 'Special Residential' in the ASP are as follows:
It is intended that the Special Residential Precinct will provide for a low density residential subdivision, serving as an effective buffer between Special Rural Zones and Residential areas and encouraging compatible development. (cl 4.4)
Clause 4.4 of the ASP also states that the minimum lot size in the Special Residential Precinct shall be 5,000 square metres.

Proposed amendment to the ASP

Clause 9.7.1 of DPS 2 states that '[a]ny Agreed Structure Plan may, subject to the approval of the [Western Australian Planning Commission], be amended or revoked by the Council'.
Pursuant to cl 9.7.1 of DPS 2, the applicants applied to the City of Wanneroo (City or Council) to amend the ASP by reclassifying a 30 metre wide strip along most of the southern boundary of each of the applicants' eastern and western parcels of land as 'Residential R20' in place of 'Special Residential'. The remainder of the applicants' land would remain classified as 'Special Residential' under the ASP, including two battleaxe handles adjoining the eastern and western boundaries of the public open space to provide access to Special Residential lots from Stockholm Road. Attachment B to these reasons shows the proposed amendment to the ASP.
The effect of the proposed amendment to the ASP would be to reduce the number of Special Residential lots that could be accommodated on the applicants' land from six to four and to insert a strip of 10 residential lots on the western parcel and a strip of eight residential lots on the eastern parcel. The total number of lots that could be accommodated on the applicants' land would increase from six to 22.

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The proposed amendment to the ASP also depicts a building envelope for each of the four Special Residential lots and requires the owners of the land to comply with any Revegetation Plan for the Precinct approved by the City.
The City refused the applicants' application to amend the ASP for the following reasons:
aBeing separated from the abutting road, the Special Residential lots will be deprived of road frontage;
bLocated behind a row of R20 lots and sharing the rear fence of the R20 blocks as the side boundary, the amenity of the Special Residential lots will be affected;
cThe subject land is located in line with a Public Open Space (POS). Along with the POS area, the Special Residential lots with frontage to the road would provide a desirable streetscape;
dSuch a proposal would set an undesirable precedent.
The applicants sought review by the Tribunal of the City's decision in accordance with cl 9.12.3 of DPS 2.
The City advertised the proposed amendment to the ASP in accordance with cl 9.7.1 of DPS 2. Four submissions were received from residents in the Special Rural zone to the north of the applicants' land objecting to the proposal, principally on amenity grounds.

Issues for determination

The City identified the following six issues for determination:
1)Whether land zoned 'Special Residential' under DPS 2 can be classified as 'Residential R20' in the ASP.
2)Whether it is consistent with orderly and proper planning to classify the land zoned 'Special Residential' under DPS 2 as 'Residential R20' in the ASP.
3)Whether the proposal would adversely affect the amenity of the Special Rural lots to the north of the applicants' land, the proposed Special Residential lots on the applicants' land or the proposed Residential R20 lots on the applicants' land.
4)Whether the proposal represents good urban design.

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5)Whether the creation of Residential R20 lots would adversely affect the streetscape of Stockholm Road.
6)Whether approval of the proposal to create Residential R20 lots would give rise to an undesirable precedent.

The Tribunal will address each of these issues in turn.

Can land zoned 'Special Residential' be classified as' Residential R20' in the ASP?

The City contended that, on the proper interpretation of the Scheme, a Structure Plan may impose a classification on land by reference to zones, reserves or density codes only where:
… the land so classified is zoned pursuant to the Scheme as Marina Zone, Urban Development Zone, Industrial Development Zone, Rural Community Zone, or where the underlying Scheme zoning is not otherwise inconsistent with the classification imposed under the Structure Plan.
The City, therefore, submitted that a Structure Plan cannot be adopted (and, hence, cannot be amended) under the Scheme in relation to land zoned 'Special Residential' or where the Structure Plan classification of the land would be inconsistent with its zoning under the Scheme. Six of the 18 Residential R20 lots contemplated by the proposed amendment to the ASP would be on land zoned 'Special Residential' under DPS 2. Furthermore, cl 3.19.5 and Sch 14[4] of DPS 2 impose a minimum area development standard of 5,000 square metres for land zoned 'Special Residential'. This development standard contemplates residential development at one-tenth of the density in comparison to the proposed amendment to the ASP.
Mr C Slarke, counsel for the City, noted that land use permissibility in 12 of the 18 zones, including the Special Residential zone, under DPS 2 is specified in the Zoning Table under cl 3.2 of the Scheme. In contrast, cl 3.2.2 of the Scheme states that 'permissibility of uses in [the Special Use, Marina, Urban Development, Industrial Development, Rural Community and Centre] zones is to be determined by the provisions specifically applying to them in the Scheme or in any Agreed Structure Plan approved under Part 9'. Mr Slarke observed that cl 3.2.2 of DPS 2 does not refer to the Special Residential zone. He also noted that cl 3.1.9 of DPS 2, which applies to the Special Residential zone, does not refer to a Structure Plan in respect of land in that zone.

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However, cl 9.1.1 of DPS 2 states that:
The Council may require the preparation and presentation to it of a Structure Plan as a prerequisite to:
(a)the Council's support for a proposal to rezone or reclassify land in the District;
(b)the Council's support for an application to subdivide or amalgamate lots; or
(c)the Council's consideration of an application for Planning Approval.
Clause 9.1.1 of DPS 2 is expressed in general terms and does not restrict the Council's power to require the preparation and presentation to it of a Structure Plan to the six zones referred to in cl 3.2.2 of the Scheme. Indeed, the Council adopted the ASP in relation, in part, to the land zoned 'Special Residential'. Similarly, cl 9.7.1 of DPS 2, which enables any Agreed Structure Plan to be amended or revoked by the Council, is expressed in general terms and is not restricted to any particular zone or zones.
Furthermore, it is apparent from cl 9.8.2 of the Scheme that the Council is not precluded from adopting or amending a Structure Plan in circumstances where a proposed classification of land under the Structure Plan or amendment is inconsistent with the underlying Scheme zoning. Clause 9.8.2 of DPS 2 states as follows:
Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it is replaced by an amendment to the Scheme imposing such classifications:
a)the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and
b)provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area. [Emphasis in bold added]
As Mr P McQueen, who appeared with Ms E McGrath on behalf of the applicants, submitted, it is apparent from cl 9.8.2 of DPS 2, and in particular par (b), that the clause recognises the potential for conflict

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between classification under DPS 2 and in a Structure Plan, and gives primacy to Structure Plan classification in the event of conflict.

Mr Slarke submitted that cl 9.8.2 of DPS 2 is merely an enabling provision to give effect to Structure Plans in relation to the six zones requiring Structure Plans for land use permissibility purposes under cl 3.2 of the Scheme. Mr Slarke submitted that, if it had been intended by the Scheme for a Structure Plan to override the zoning, then the Scheme would have said so expressly.
However, while par (a) of cl 9.8.2 of DPS 2 could be explained in the manner proposed by Mr Slarke, par (b) of the clause cannot be. The terms of that paragraph make it clear that a Structure Plan can classify land so as to facilitate residential development at a residential density of R20, even though the residential density contemplated by other provisions in the Scheme is R2. The effect of par (b) of cl 9.8.2 of the Scheme is to give primacy to the R20 density over the R2 density.
Finally, Mr Slarke sought to draw in aid of the City's argument a textual indication derived from cl 9.1.1(a) of DPS 2 (see [29] above). Mr Slarke questioned why there would be a need for a Structure Plan to support a proposal to rezone or reclassify land if a Structure Plan can itself reclassify land. This submission might have been of significance were it not for the express contemplation in cl 9.8.2 of DPS 2 that a Structure Plan can impose a classification on land.
It follows that the Council, and the Tribunal on review, has power to amend the ASP to classify the part of the applicants' land which is zoned 'Special Residential' as 'Residential R20'. Before turning to the merit considerations of whether the Tribunal should do so, it is convenient to discuss a threshold question raised by Mr Slarke as to the test that should be applied by the Tribunal in the strategic planning review decision in this case.

What is the test to be applied?

Mr Slarke submitted that the Council ‑ not the Tribunal ‑ is the responsible authority for strategic planning under the Scheme. Consequently, he contended that the Tribunal on review should only support a change in the planning framework where it is 'demonstrably better than the existing'.
Clause 1.2 of DPS 2 states that '[t]he authority responsible for implementing and enforcement of the Scheme is the Council of the City

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of Wanneroo'. Furthermore, the Tribunal was not established as a strategic planning authority. Rather, the Tribunal is relevantly an administrative review body.

However, cl 9.12.3 of DPS 2 creates a right of review by the Tribunal of any decision of the Council in respect of a Structure Plan that is exercisable by the proponent or any landowner within the area of the Structure Plan dissatisfied with the decision. Section 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states that:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
The Tribunal has functions and discretions corresponding to those exercisable by the Council in making the reviewable decision (s 29(1) of the SAT Act).
Consequently, in this case, the Tribunal is charged by the relevant legislation to be a strategic planning body. The Tribunal is required to undertake that role exercising the same functions and discretions as were exercised or available to the Council when it made its decision to refuse the amendment to the ASP.
There is no basis in the relevant legislation to import a test that either the Council, or the Tribunal on review, can only approve an amendment to an ASP where the planning framework that would be created by the amendment would be demonstrably better than the existing planning framework. Furthermore, there is no basis to import a different test on review than that which would apply at first instance before the Council.
Clause 9.7.1 of DPS 2 confers a discretion on the Council, and on the Tribunal on review, as to whether to approve a proposed amendment to a Structure Plan. The Scheme does not state a test to be applied nor does it contain express matters for consideration in the exercise of the discretion. However, having regard to the terms and context of cl 9.7.1 of the Scheme, it would seem that the relevant test for determining whether to amend a Structure Plan under the Scheme is whether it would be appropriate to do so, having regard to all relevant provisions of the Scheme and all relevant planning considerations.

Is the proposed amendment consistent with orderly and proper planning?

Mr Timothy Dawson, the City's Senior Project Planner, gave evidence that the City's usual practice is to not adopt a Structure Plan or an amendment to a Structure Plan where the classification of the land

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proposed under the Structure Plan would conflict with the Scheme zoning. Mr Dawson expressed the opinion, and Mr Slarke submitted, that it would be inconsistent with orderly and proper planning to approve the proposed amendment without a prior or concurrent rezoning of the part of the applicants' land zoned 'Special Residential' to 'Residential' under the Scheme.

However, as discussed earlier, cl 9.8.2(b) of DPS 2 contemplates the classification of land in a Structure Plan in a manner that could be inconsistent with other provisions of the Scheme. It is, therefore, not inconsistent with orderly and proper planning, as expressed in the Scheme, to approve the proposed amendment simply because the residential density contemplated by the amendment is ten times greater than the residential density contemplated by another provision of the Scheme.
The Tribunal considers that the proposed amendment to the ASP is consistent with orderly and proper planning in light of the findings set out below in relation to the other issues and for the following reasons.
The applicants called Mr Fernando Ferrante and Mr Matthew Zuvela, who are both town planners, and Mr Malcolm McKay, who is an architect and urban designer, to give evidence. These witnesses generally agreed with Mr Dawson's evidence that the planning objective of zoning part of the applicants' land as 'Special Residential' under the Scheme and of classifying the whole of the applicants' land as 'Special Residential' in the ASP was to create a buffer or transition between the suburban residential development, at residential densities of R20 and R30, to the south of Stockholm Road, and the Special Rural lots to the north of the ASP area. Mr Dawson explained that the people living in the Special Rural zone did not want to share their rear boundaries with suburbia. Rather, they wanted a buffer or transition. The City thought this was a good idea and implemented it.
However, Mr Dawson conceded, and each of the other expert witnesses considered, that the planning objective of the Special Residential zone and precinct will continue to be met if the proposed amendment were approved. In particular, although the width of the buffer or transition would be reduced from about 77 metres to about 47 metres, the remaining buffer or transition width is adequate to achieve the planning intent of the original Scheme zoning and Structure Plan classification.

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Furthermore, whereas the applicants' land is currently generally cleared of vegetation, the proposed amendment to the ASP involves a requirement for the owners of the land to comply with any Revegetation Plan for the Special Residential precinct approved by the City. The applicants proposed that they would submit a Revegetation Plan to the City for consideration and approval within 90 days of the endorsement of the amended ASP by the Western Australian Planning Commission. Furthermore, the proposed amendment to the ASP also provides that the Council may, as a condition of development approval, require the owner or occupier of the land to plant and maintain native trees and shrubs to the City's satisfaction. Revegetation of the Special Residential lots would assist in creating a buffer or transition between suburban residential development and the Special Rural land.
Mr McKay gave evidence, which was not questioned or contradicted, that:
It is good urban design practice to treat Public Open Space as a community asset and maximise the number of residents with an aspect of the Public Open Space … and within a short (200 metre) walk of the Public Open Space.
Mr McKay observed that, in contrast, it is poor urban design practice to locate Public Open Space in the way in which it is envisaged in the ASP, namely, at the northern edge of the Structure Plan area and bounded by 0.5 hectare Special Residential lots and 1 hectare to 2 hectare Special Rural lots. However, Mr McKay said, and the Tribunal finds, that the proposed amendment to the ASP provides an opportunity in the northern portion of the cell to refine the strategic planning 'to increase the value of the Public Open Space by locating more residents within an easy walking distance of it'.
More broadly, as Mr Ferrante said, the proposal is consistent with orderly and proper planning, because it provides for 'a more efficient use of urban zoned land in close proximity to public open space and community facilities'.
The proposal is, therefore, consistent with the purpose of the Planning and Development Act 2005 (WA) (PD Act) to 'promote the sustainable use and development of land in the State' (s 3(1)(c) of the PD Act). Importantly, however, the proposed amendment satisfies this objective while also maintaining the original planning intent of providing

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a buffer or transition between suburban residential development and Special Rural development.

Amenity and urban design

It is convenient to address issue 3 and issue 4 together, because the City's concern in relation to the amenity of two of the contemplated Special Residential lots is related to its concern about the battleaxe configuration of those lots as a matter of urban design.
The town planning experts agreed that the proposal does not affect the amenity of the Special Rural lots in terms of providing a buffer between suburban residential development and those lots.
However, Mr Dawson considered that the proposal would involve adverse amenity impacts for both the contemplated Special Residential and Residential R20 lots.
Mr Dawson noted that the objectives of the Special Residential zone in the Scheme are to:
(a)accommodate a spacious style of living in a low density setting;
(b)maintain important environmental and landscape values through site-sensitive design and development.
Under cl 4.4 of the ASP, these objectives apply to all land classified as 'Special Residential' in the ASP, irrespective of its zoning under the Scheme.
As can be seen on Attachment C to these reasons, each of the Special Residential lots would adjoin between three and six Residential R20 lots. However, as can also be seen from Attachment C, the proposed building envelopes for the Special Residential lots are separated from the common boundary with the Residential R20 lots and are oriented away from the Residential R20 lots, either to the street or the Public Open Space. Furthermore, as Mr McKay observed, there is sufficient space in a 5,000 square metre lot 'to create your own amenity'. The proposed revegetation of the Special Residential lots would significantly contribute to the amenity of the Special Residential lots and also the amenity of the Residential R20 lots. Finally, the nominated building envelopes for the two western Special Residential lots would be located 4 metres to 7 metres above the levels of the Residential R20 lots, providing for views and aspect to the south. It follows that each of the

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Special Residential lots would satisfy the objectives of the Special Residential zone.

Mr Dawson raised a concern about the proposed battleaxe lot configuration of two of the four contemplated Special Residential lots. However, as Mr McKay explained, the battleaxe configuration is appropriate in the circumstances of this case, because the battleaxe lots:
(a)provide a high degree of seclusion and self-containment that matches the aspirations of the market;
(b)provide additional frontage and opportunities for passive surveillance of the new adjacent Public Open Space;
(c)avoid the use of steep driveways to elevated lots;
(d)provide improved outlook from an elevated position;
(e)make efficient use of the street infrastructure; and
(f)enable the creation of a consistent streetscape to the new subdivisional road to the south (Stockholm Road).
As Mr McKay noted, the use of battleaxe lot configuration is consistent, in the circumstances of this case, with the provisions of both Liveable Neighbourhoods and the Western Australian Planning Commission's Policy No DC 2.2 – Residential Subdivision (DC 2.2).
Liveable Neighbourhoods states in Element 3 par R21 as follows:
Battle‑axe lots should only be used where they can achieve adequate amenity for residents and neighbours, and enhance community safety, in situations including … :
•overlooking parkland;
…
•elevated views;
…
•in very limited circumstances, larger (eg. special residential 3) lots adequate for self-containment of a dwelling and its outlook.
Similarly, although cl 3.6.2 of DC 2.2 states that extensive use of battleaxe configuration in the subdivision of new or broadacre areas is not favoured:

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Exceptions may be permitted where:
•Battleaxe legs can be used to provide an alternative access for lots fronting … public open space.
•Full advantage can be taken of the views out of the site …

While battleaxe lot configuration generally reflects poor urban design in suburban residential development, its proposed use in the circumstances of this case is, therefore, appropriate.
During the hearing, the Tribunal also explored with the expert witnesses and the parties the impact of the proposal on the residential amenity of the contemplated Residential R20 lots. In particular, the Tribunal noted that the R20 lots in the applicants' western parcel of land would require retaining walls and fences of between 3 metres and 4 metres in height in order to create a flat building envelope. However, Mr Dawson explained that retaining walls and fences of these heights, or even higher, are not uncharacteristic in the area. While the overshadowing that would be caused to some of the Residential R20 lots as a result of the necessary retaining walls and rear fences would be less than optimal, it is not inconsistent with local amenity expectations, and is, therefore, acceptable.
Finally, while Mr Dawson initially raised a concern about the privacy interface between the contemplated Special Residential and Residential R20 lots, he ultimately conceded that there would be no privacy issue if the Special Residential lots were developed in accordance with the building envelopes proposed in the Structure Plan amendment. No doubt, if there were ever an application to further amend the ASP to move a building envelope, the Council would carefully consider the privacy and broader amenity consequences.
It follows that the proposal would not adversely affect the amenity of any lots and represents good urban design in the circumstances of the case.

Streetscape

Mr Dawson considered that the streetscape that would be created by the proposed amendment to the ASP would undermine the 'variety and diversity in the streetscape' that would be created under the current planning framework. The proposal would, in Mr Dawson's opinion, adversely affect the promotion of 'a legible and effective transition buffer to the Special Rural zone'. In oral evidence, Mr Dawson said that a

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purpose of the transition buffer on the applicants' land is to enable the construction of 'more obvious larger houses' which create 'a good image for the City'.

However, as Mr McKay said:
One of the main principles of good urban design practice is to create a degree of consistency to a streetscape. It is for this reason that Liveable Neighbourhoods promotes significant changes of land use or scale of development at the rear boundary rather than across a street so that a street can be framed with a similar scale and type of development on each side.
The proposed introduction of R20 suburban lots on the northern side of Stockholm Road (the new subdivisional road) places 'like' development opposite 'like' development and effectively 'balances' the streetscape. Therefore, it is a good outcome entirely consistent with prevailing urban design practice; unlike the current Structure Plan that would, if implemented, result in a 'schizophrenic' street where the two sides of the street would be completely different.
The Tribunal prefers Mr McKay's evidence over Mr Dawson's evidence on this point, given Mr McKay's significant and specialist experience in urban design. Furthermore, as Mr McKay said, the current Scheme zoning and Structure Plan classification of the applicants' land is not likely to result in large houses, but rather 'ranch type' single storey houses.
The proposal would not have an adverse effect on the streetscape of Stockholm Road. Indeed, the creation of a balanced streetscape, including R20 housing on the northern side of Stockholm Road, is appropriate in terms of good urban design of the streetscape.

Undesirable precedent

The evidence identified three other areas that are subject to a similar planning framework to the applicants' land, where a similar type of application to that which is now before the Tribunal could be proposed. Mr Dawson expressed a concern that if the proposed amendment to the ASP were approved, then landowners in these other areas might be encouraged to apply to the Council to amend the relevant Structure Plans.
In Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) at [74], the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment:

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(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.

These criteria were endorsed by Justice Barker in Cornhill and Western Australian Planning Commission [2009] WASAT 9 at [57] ‑ [65]. As Justice Chaney noted in Thio and Western Australian Planning Commission [2009] WASAT 88 at [47], these criteria have been applied consistently by the Tribunal since Nicholls.
Although the matter before the Tribunal involves an amendment to a proposed Structure Plan, not a development or subdivision application, the proposal is clearly intended to facilitate subdivision and development of the applicants' land. The criteria in Nicholls would appear to be apposite in this context as well.
For reasons set out earlier, the Tribunal does not consider that the proposal is objectionable. Rather, it is appropriate having regard to all relevant planning considerations. Adverse planning precedent is not, therefore, a relevant consideration.
However, even if precedent were relevant, it would not warrant refusal of the proposal. Other applications would need to be assessed on their own merits. On its merits, the proposal warrants approval.

Conclusion

The Tribunal has determined that the proposed amendment to the ASP is capable of approval and is appropriate having regard to all relevant provisions of the Scheme and all relevant planning considerations. The proposal, therefore, warrants approval.
The Tribunal directed the applicants to file and provide to the City a proposed form of orders in the event that the Tribunal determined to grant approval to the proposal and the City to file and provide to the applicants comments in relation to the proposed form of orders. Ultimately, the applicants filed a minute of proposed orders that reflected all but one of the City's comments. The City then made further comments in which it proposed an alternative par (g) in cl 4.4 of the ASP as amended. The Tribunal agrees that the City's proposed par (g) avoids ambiguity and should be substituted.

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Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The Agreed Local Structure Plan No 6, East Wanneroo Cell 4 (Hocking and Pearsall), 24 June 2002, (Cell 4 ASP), a copy of which is attached as 'Attachment A', be amended as follows:
(i)The Cell 4 ASP Map, dated 4 September 2007, be removed and the Cell 4 ‑ Amended Agreed Structure Plan, dated 21 April 2008, which is attached as 'Attachment B', be inserted.
(ii)Delete Section 4.4 'Special Residential Precinct' and replace it with the following:
4.4 SPECIAL RESIDENTIAL PRECINCT
The permissibility of land uses and general provisions for this zone are the same as those which apply under the provisions for the Residential Zone under the Scheme except where indicated to the contrary by the following criteria.
Objectives
It is intended that the Special Residential Precinct will provide for a low density residential subdivision, serving as an effective buffer between Special Rural Zones and Residential areas and encouraging compatible development.
Within this precinct:
(a)The minimum lot size shall be 5000 square metres;
(b)All buildings are to be contained within nominated Building Envelopes of a maximum size of 1000 square metres with minimum front setbacks of 20 metres and minimum side and rear setbacks of 10 metres, the location of which shall be generally in accordance with the Streetscape Concept Plan, a copy of which is attached as 'Attachment C';

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(c)Except to the extent necessary for the construction of approved buildings and driveways, no land shall be cleared of vegetation without prior approval of the Council;
(d)Electricity shall be provided by means of underground cables to all buildings;
(e)The Council may, as a condition of any approval granted under special provisions (b) and (c), require the owner and occupier of the land to plant and maintain to its satisfaction native trees and shrubs;
(f)At the subdivision stage, the subdivider shall construct the stormwater drainage systems necessary to contain the 1:100‑24 hour duration storm event wholly within the Special Residential lots to the specification and satisfaction of the Council;
(g)For the Special Residential lots west of the Public Open Space, at least the first 300mm above the design ground level of the dividing fence along the boundary with the adjoining Residential R20 lots shall be of brick or masonry construction to ensure that no water run[-]off to the Residential R20 lots occurs. The 300mm brick or masonry section of the dividing fence shall be constructed by the subdivider at the subdivision stage. The balance of the fence to be constructed on top of the brick/masonry section may be constructed by the subdivider but, if it is not, must be constructed when a dwelling is first built on the lot.
(h)The owners of the land within the Special Residential Precinct shall comply with any Revegetation Plan for the Precinct approved by the City prior to any of the lots within the Precinct being sold, unless another alternative satisfactory to the City is agreed.
3.The applicants shall forward to the respondent three copies of consolidated Cell 4 ASP amended in accordance with these orders, within seven days. The respondent shall then forward the amended Cell 4 ASP to the Western Australian Planning Commission for approval pursuant to cl 9.7.1 of the City of Wanneroo

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District Planning Scheme No 2, within a further seven days.
4.Within 90 days of the endorsement of the amended Cell 4 ASP by the Western Australian Planning Commission, the applicants shall forward a Revegetation Plan for the proposed Special Residential lots to the respondent for consideration and approval. The applicants shall comply with the Revegetation Plan in the form approved by the respondent.

I certify that this and the preceding [80] 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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Attachment A

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Attachment B

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Attachment C

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Citations

Hocking Land Company Pty Ltd and City Of Wanneroo [2009] WASAT 139

Most Recent Citation

QUINN and CITY OF MANDURAH [2010] WASAT 57

Cases Citing This Decision

2

QUBE BEECHBORO DEVELOPMENT PTY LTD and CITY OF SWAN [2014] WASAT 58

QUINN and CITY OF MANDURAH [2010] WASAT 57

Cases Cited

3

Statutory Material Cited

3

Nicholls v Western Australian Planning Commission [2005] WASAT 40

Cornhill and Western Australian Planning Commission [2009] WASAT 9

Thio and Western Australian Planning Commission [2009] WASAT 88