L R ARCHIBALD & CO PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2010] WASAT 129
•17 SEPTEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: L R ARCHIBALD & CO PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 129
MEMBER: MS M CONNOR (MEMBER)
HEARD: 14 JUNE 2010
DELIVERED : 17 SEPTEMBER 2010
FILE NO/S: DR 47 of 2010
BETWEEN: L R ARCHIBALD & CO PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision Conditions of approval Notification on title Existence of use obvious and discernible by prospective purchasers Appearance of legitimising unauthorised use Requirement for the lots to be serviced with reticulated sewerage Weight to be accorded Orderly and proper planning Precedent
Legislation:
Planning and Development Act 2005 (WA), s 142, s 251(2)
Residential Planning Codes of Western Australia, Table 1
Town of Narrogin Town Planning Scheme No 2
Town of Narrogin Town Planning Scheme No 7 Dellar Street Scheme, cl 9.2, cl 21, cl 22
Transfer of Land Act 1893 (WA), s 70A
Result:
Application for review is upheld
Conditions of approval varied
Category: B
Representation:
Counsel:
Applicant: Mr G Smith (Representative)
Respondent: Ms R Young
Solicitors:
Applicant: Gordon G Smith
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported; WATPAT, Appeal No 13 of 1988, 21 October 1988)
Goldin v Minister for Transport (2002) 121 LGERA 101
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The matter concerned two conditions of subdivision approval for No 7 (Lot 26) Fleay Road, Narrogin, being condition 1 and condition 10. Condition 1 required a notification being placed on the Certificate of Title of the proposed lots, advising that the lots may be impacted by noise from a nearby bus depot and mechanical servicing site. Condition 10 required the lots to be serviced with reticulated sewerage.
The following four principal issues arose for determination in this matter:
1)whether condition 1 is reasonable in the circumstances of this case;
2)whether condition 10 should be retained having regard to the relevant planning framework;
3)whether the removal of condition 10 will compromise orderly and proper planning in the Town of Narrogin; and
4)whether the removal of condition 10 will set an undesirable precedent for further subdivision.
The Tribunal did not consider condition 1 to have a proper planning purpose and was not reasonable or appropriate in the circumstances of this case as the bus depot and its operations were obvious and the associated impacts were readily discernible by prospective purchasers. Further, the Tribunal considered the notification to be giving some legitimacy to an unauthorised use that exists in contravention of the town planning scheme.
In relation to condition 10, the Tribunal found that the imposition of the condition was not reasonable in the context of the existing planning framework and that its removal would not compromise orderly and proper planning or set an undesirable precedent for further subdivision. The application for review was allowed and the conditions of approval varied.
Introduction
L R Archibald & Co Pty Ltd (applicant) made an application to the Western Australian Planning Commission (respondent or WAPC), on 18 September 2009, for approval to subdivide No 7 (Lot 26) Fleay Road, Narrogin (subject land). The proposed subdivision reflects the first stage of an overall subdivision plan which, if completed, will result in the creation of 41 residential lots. This application involves the creation of 15 residential lots ranging in size from 2,000 to 2,032 square metres and a balance lot of 6.97 hectares (see Attachment 1).
The respondent approved the application subject to 13 conditions and seven advice notes, on 11 January 2010.
The applicant, on 4 February 2010, made application under s 251(2) of the Planning and Development Act 2005 (WA) (PD Act) to have condition 10 of the approval reviewed.
Condition 10 reads as follows:
Suitable arrangements being made with the Water Corporation so that provision of a sewerage service will be available to the lot/s shown on the approved plan of subdivision.
The application for review was amended to also include a review of condition 1. This condition reads as follows:
Notification in the form of a section 70A notification, pursuant to the Transfer of Lands Act 1893 (as amended) is to be placed on the Certificates of Title of the proposed Lots advising that these Lots may be impacted by noise from a nearby bus depot and mechanical servicing site.
Subject land
The subject land is more particularly described as Lot 26 Fleay Road, Narrogin, being the land comprised in Certificate of Title Volume 1588 Folio 875 on diagram 60536, and is 9.4107 hectares in area.
The subject land is located on the northern edge of the Narrogin townsite and is bounded by Quigley Street, Narrakine Road, Fleay Road and May Street. There are currently 14 residential lots located within the same street block that are not serviced with reticulated sewerage. The land slopes down from Narrakine Road in the west to May Street in the east. The slope is not even with the slightly steeper land on the western portion of the site. There are a few mature trees on the land but, in general, it has been cleared and allowed to regrow over the last two to three years.
The subject land is surrounded by rural land to the north and west and residential land to the south and east with a density coding of R12.5. Whilst much of the residential land is yet to be developed, subdivision approval was granted in February 2010 for the creation of 61 residential lots on the property to the east of the subject land, known as Lot 123 Golf Course Parade and owned by the Town of Narrogin (Town). This approval was subject to the provision of reticulated sewerage to the lots.
Background
Pursuant to s 142 of the PD Act, the subdivision application was referred to the Town, Department of Health, Water Corporation, Western Power and Telstra.
Correspondence of 2 November 2009 (Exhibit 2, page 39) from the Town advised support of the subdivision subject to a number of conditions, including:
A geotechnical study regarding the land's capability to sustain building development, including on-site effluent disposal being submitted to the satisfaction of the Town of Narrogin.
As a part of the Town's response, it was noted that the developer had recently provided the Town with the result of a geotechnical survey which indicated that the soil conditions across the subject land were not suitable for conventional on-site waste water disposal.
The Department of Health advised that the proposal met the criteria to warrant consideration for exemption from the mandatory sewer condition of the Draft Country Sewerage Policy (DCSP). The Department of Health did not object to the proposal, based upon advice from the Town that onsite waste water disposal was achievable on the subject land.
The Water Corporation raised no objection to the proposal and did not require the provision of reticulated sewerage to the lots. Subsequently, the Water Corporation advised the WAPC that it would cost approximately $1 million to provide reticulated sewerage to the subject land. Whilst they anticipate that development of the adjoining land to the east would reduce the cost, they were unable to quantify cost savings at such a preliminary stage of the planning process.
Planning framework
Local
The Town of Narrogin Town Planning Scheme No 7 Dellar Street Scheme (TPS 7) was gazetted in May 1979. TPS 7 was intended to guide subdivision and development, and includes a scheme map which indicates an acceptable method of subdivision and development. Although an operative scheme, it would appear from the evidence that was before the Tribunal that no subdivision or development had been undertaken under this scheme. It was suggested that TPS 7 had been overtaken by the Town of Narrogin Town Planning Scheme No 2 (TPS 2) upon its gazettal in June 1994 and that there had been a failure to revoke TPS 7. This may be correct; however, TPS 7 is an operative scheme and therefore is a relevant consideration in the determination of this application.
Clause 9(2) of TPS 7 provides authority for the Council to depart from the design shown on the Scheme Map, subject to consent of the respondent, if the proposed subdivision/development is considered to be of a similar standard to that shown, but no departure shall be permitted if, in the opinion of the Council, it would impede the subdivision or development of the Scheme Area as a whole or of the sub-area in which the land is situated.
Clause 21 and cl 22 of TPS 7 relate to the provision of sewerage, and state:
21.Subject to the next succeeding clause a person shall not -
(a)subdivide land unless there is a sewer to which all new lots in the proposed subdivision may be connected; or
(b)occupy a building unless it is connected to a sewer.
22.(1) If the Council is of the opinion that the nature of the soil in any part of the Scheme Area is sufficiently absorptive to permit the efficient operation of an apparatus for the bacteriolytic treatment of sewage it may recommend to the [Western Australian Planning Commission] that the subdivision be approved or permit the development of that part of the Scheme Area and the occupation of buildings therein before the sewer is available.
(2)Permission to subdivide or develop given pursuant to this clause does not unless otherwise determined by the Council absolve an owner from his liability to pay for the connection of his land to the sewer when the sewer becomes available.
TPS 2 is the operative local planning scheme for the Town. The subject land is largely zoned 'Single Residential' with a density coding of R12.5 and contains two areas designated for 'Recreation'. It was accepted by the respondent that the proposed lots comply with the minimum (700 square metres required, 2,000 square metres provided) and average (800 square metres required, 2,202 square metres provided) lot size requirements of the R12.5 density code as set out in Table 1 of the Residential Planning Codes of Western Australia (Codes).
The Development Table for the Single Residential zone, amongst other things, specifies a minimum 850 square metres for unsewered lots for a 'Single House'. The proposed lot sizes are well in excess of this requirement.
The parties also referred to the Draft Local Planning Strategy (DLPS) and Draft Local Planning Scheme No 3 (Draft LPS 3) jointly prepared for the Town and Shire of Narrogin. In these documents, the subject land is shown as 'Residential' with a density code of R5. It was put by the respondent, and accepted by the applicant, that these documents had not reached the stage where they could not be considered as seriously entertained proposals. Notwithstanding, the applicant submitted that the R5 coding over the subject land was indicative of the Town's intention for the town centre and that the proposed subdivision was consistent with that direction.
State
Statement of Planning Policy No 1: State Planning Framework (Variation No 2) (SPP 1) unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decisionmaking on land use, subdivision and development in Western Australia. The most relevant operational policy relevant to this matter is Development Control Policy 1.1 Subdivision of Land General Principles (DC 1.1). This policy sets out the general objectives which guide the respondent in determining applications for the subdivision of land.
Clause 3.6.1 of DC 1.1 is pertinent to this application as it states that the WAPC will ensure that each new lot is provided with a standard of public utility services appropriate for its intended use. The level of service is to be determined in the light of the intended use, the size of the lot, soil conditions, the provisions of the town planning scheme, the DCSP and any other published policy that may be relevant.
The relevant provisions relating to the operative town planning schemes are detailed in paras [18] [22] above. Section 4 of the DCSP requires the provision of reticulated sewerage to all subdivision or density development, except for those exemptions permitted under the discretionary provisions of s 5.
Issues
The following four principal issues arise for determination in relation to this matter:
1)whether condition 1 is reasonable in the circumstances of this case;
2)whether condition 10 should be retained having regard to the relevant planning framework, namely:
(i)TPS 2;
(ii)TPS 7, and in particular cl 9(2);
(iii)DC 1.1;
(iv)DCSP; and
(v)Draft LPS 3 and DLPS for Narrogin Town.
3)whether the removal of condition 10 will compromise orderly and proper planning in the Town; and
4)whether the removal of condition 10 will set an undesirable precedent for further subdivision.
The Tribunal will address each of these issues in turn.
Whether condition 1 is reasonable in the circumstances of this case
According to Mr Daniel Stevens, Team Leader of Statutory Planning for Southern Region at the Department of Planning, the purpose of condition 1 is to alert prospective purchasers that the use and enjoyment of the newly created lots could be affected by the existence of a nearby bus depot and its associated mechanical servicing activities. He considered this condition to be necessary in this circumstance as it is a use that would not normally be permitted in a residential area.
The Tribunal was informed that the bus depot had been operating without planning approval and that there was no evidence to suggest that the Town intended to take action to cease its operation. Mr Archibald told the Tribunal that the bus depot was also currently utilising a portion of proposed Lot 9 (part of the subject land) and that he had advised the operator of the bus depot that it would be necessary for him to discontinue the use of that land. He also recounted discussions that he had with the operator, who advised that he had purchased land in the industrial area in the Shire of Narrogin with a view to relocating his entire operations within approximately 12 months.
Section 70A of the Transfer of Land Act 1893 (WA) was introduced in the Act in 1996. It provides, in part, as follows:
70A. Record on title of factors affecting use and enjoyment of land
(1)Where, in relation to land under the operation of this Act
(a)the local government of the district in which the land is situated; or
(b)a public authority,
considers it desirable that proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land, the local government or the public authority may, on payment of the prescribed fee, cause a notification of the factor to be prepared in an approved form and lodged with the Registrar.
(2)Where
(a)a notification is lodged under subsection (1); and
(b)the written consent of the proprietor of the land accompanies the notification,
the Registrar shall endorse the certificate of title for the land to that effect.
The Tribunal does not consider condition 1 to have a proper planning purpose and is not reasonable or appropriate in the circumstances of this case for the following reasons. Firstly, the existence of the bus depot and its operations is obvious and the associated impacts are readily discernible by prospective purchasers and secondly, the notification appears to be legitimising an unauthorised use that is in contravention of the town planning scheme. Notifications should not be used as a substitute for, or amplification of, other matters, such as development constraints and controls found normally in town planning schemes.
Whether condition 10 should be retained having regard to the relevant planning framework, namely:
TPS 2;
TPS 7, and in particular cl 9(2);
DC 1.1;
DCSP; and
Draft LPS 3 and DLPS for Narrogin Town
The respondent considered that the only practicable method of waste water disposal for the proposed subdivision was reticulated sewerage and contended that on the application of the planning framework the provision of reticulated sewerage should be imposed as a condition of this particular subdivision. The respondent relied on cl 3.6.1 of DC 1.1 and the DCSP. Mr Stevens argued that the proposed subdivision was not consistent with the objectives of DC 1.1 as the zoning of the land provided for the creation of lots at a density of R12.5 which, in his opinion, necessitated the provision of reticulated sewerage. He did, however, indicate that should the land be coded to a lower residential density then it would be appropriate to reconsider the requirement for reticulated sewerage.
Mr Stevens referenced on the DCSP, which requires the provision of reticulated sewerage to all subdivision, except for those exemptions permitted under the discretionary provisions of s 5. Mr Stevens argued, despite the Department of Health advice to the contrary, that the subdivision did not meet the criteria to warrant consideration for exemption from the mandatory sewer condition of the DCSP. The Tribunal did not have to come to a conclusion on whether one of the exemptions applied, for the following reason.
The Tribunal does not agree with the weight attributed to the DCSP by the respondent. Clearly, TPS 2 provides for the creation of lots with a minimum lot area of 700 square metres for a 'Single House' in the Single Residential zone and makes specific provision for a minimum unsewered lot area of 850 square metres. TPS 2 has effect as if it were enacted by the PD Act and, therefore, prevails over any policy provision contained in the DCSP. The Tribunal does not hold with the respondent's argument that less weight should be accorded to the Scheme because it predates the DCSP and, therefore, the provisions of the TPS 2 should be read against the provisions of the DCSP, as there has been ample opportunity in the intervening years to amend TPS 2, if that were the intention of the planning authorities.
The Tribunal considers that minimal weight should be given to the DCSP for the following four reasons. Firstly, the DCSP is only a draft policy and it is inconsistent with the operative town planning scheme for the area. Furthermore, the proposed subdivision does not offend any of the objectives contained in the DCSP. Secondly, the DCSP is a statewide policy, whereas the local planning scheme is a local planning document which specifically addresses this issue in the local context. Thirdly, the evidence presented, which was not challenged by the respondent, is that in the particular circumstances of this case, the proposed 15 lots can be adequately serviced with onsite waste water disposal. Fourthly, TPS 7 contemplates subdivision without sewer where the soil in any part of the Scheme Area is sufficiently absorptive to permit the efficient operation of an apparatus for the bacteriolytic treatment of sewerage.
The Tribunal, in its deliberations, acknowledges the existence of the DLPS and Draft LPS 3 but, given the infancy of these documents, cannot rely on the future planning options for the land with any certainty, and therefore considers them to be mere possibilities in the context of the planning framework.
The Tribunal, therefore, does not consider the imposition of condition 10 to be reasonable in the context of the planning framework.
Whether the removal of condition 10 will compromise orderly and proper planning in the Town of Narrogin
Mr Stevens considered the subject land to be ideally situated to allow for the expansion of the townsite and submitted that the removal of condition 10 would prejudice the realisation of the subdivision of the subject land and adjoining land to the density coding assigned it. This assertion was based on the argument that viability would be compromised as fewer potential lots would be available to share the cost of headworks and the proposed subdivision would prejudice the ability to provide sewerage to adjoining areas. He argued that an outcome which constrained the ability of the land to be subdivided to the density designated by the Scheme was contrary to orderly and proper planning.
The Tribunal was told by Mr Ennis, the Mayor of the Council of the Town, that there had been a decline in the population of the Town and that the Council was endeavouring to attract more people to the Town. One of the strategies being contemplated by the Council was to encourage the development of countrystyle blocks to entice people and businesses into the region, and that this approach had been reflected in the DLPS and Draft LPS 3. Mr Ennis, who has been a resident in the Town since 1947, considered there to be a definite market for lots of this size in relatively close proximity to the town centre. He submitted that the proposed subdivision would address the community's aspirations and provide for a diversity of lot sizes that would satisfy a demand that is not catered for at present.
This anecdotal evidence was accepted by the Tribunal and it would seem that in the short to medium term there is a demand for 2,000 square metre lots, and that the proposed subdivision addresses this demand and provides for diversity of lot sizes within the town centre. The Tribunal was told that the cost of connecting the subdivided lots to sewer is cost prohibitive and that the imposition of such a condition was tantamount to a refusal. The costs estimates provided to the Tribunal suggest that this may well be the case. The evidence before the Tribunal does not support that there will be any substantial prejudice to the ultimate servicing of the subject land or the surrounding land with reticulated sewerage. In fact, Mr Stevens conceded that the prejudice would be limited, given that Lot 123 Golf Parade is to be subdivided at a density of R12.5 with a requirement for the provision of reticulated sewerage. The effect of this subdivision is to bring the service progressively towards the subject land and the adjoining land. Further, the creation of the proposed lots without reticulated sewerage does not prejudice the future realisation of the ultimate pattern of subdivision, if that is the desired outcome, as there is potential for further subdivision of the lots into smaller lots if and when sewerage becomes available.
For these reasons, the Tribunal finds that the removal of condition 10 will not compromise orderly and proper planning in the Town.
Whether the removal of condition 10 will set an undesirable precedent for further subdivision
Precedent was considered by the Tribunal, in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (unreported; WATPAT, Appeal No 13 of 1988, 21 October 1988), and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [71] [75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment, from Goldin v Minister for Transport (2002) 121 LGERA 101 as consistent with Western Australian authority:
(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.
For precedent to be a relevant factor, both tests must be satisfied. In this instance, for reasons discussed earlier, deletion of condition 10 is not of itself unobjectionable. Therefore, the adverse precedent argument is not a relevant consideration in this case, as each subsequent case will be considered and determined on its own merits.
Conclusion
The Tribunal does not consider condition 1 to have a proper planning purpose and is not reasonable or appropriate in the circumstances of this case. In relation to condition 10, the Tribunal found that the imposition of the condition was not reasonable in the context of the existing planning framework and that its removal will not compromise orderly and proper planning or set an undesirable precedent for further subdivision. The application for review is allowed and the conditions of approval are varied so that condition 1 and condition 10 are deleted.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent, issued on 11 January 2010, granting approval for the subdivision of No 7 (Lot 26) Fleay Road, Narrogin is varied as follows:
i)Condition 1 is deleted.
ii)Condition 10 is deleted.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
Attachment 1
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