LANDVISION and WESTERN AUSTRALIAN PLANNING COMMISSION - [2010] WASAT 3

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LANDVISION and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 3

MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: 18 NOVEMBER 2009

DELIVERED : 13 JANUARY 2010

FILE NO/S: DR 336 of 2009

BETWEEN: LANDVISION
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Application for subdivision - Orderly and proper planning - Residential amenity - Undesirable precedent - Minimum and average lot size requirements - Alternative approach to implementing the local housing strategy - Corner lots and density bonus

Legislation:

City of Gosnells Town Planning Scheme No 6, cl 1.6, cl 1.6(d), cl 2.1, cl 2.2, cl 2.3, cl 4.2, cl 5.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 26, s 138(3)(a), s 241(1), s 251(1)
Residential Design Codes of Western Australia (2008), Table 1
Western Australian Planning Commission Development Control Policy No DC 2.2, cl 3.2.3, cl 3.4.1

Result:

The application for review was dismissed

Category: B

Representation:

Counsel:

Applicant: Mr T Moran (Representative)
Respondent: Mr JR Bouwhuis (Representative)

Solicitors:

Applicant: Landvision
Respondent: Western Australian Planning Commission

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

Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL

Summary of Tribunal's decision

The application for review was lodged against a decision of the Western Australian Planning Commission to refuse a two lot subdivision at No 2 (Lot 41) Nethercott Street, Huntingdale.
In undertaking this review, the Tribunal examined the respective position of the parties, the background to the proposal, the relevant legislation and policy provisions and matters relating to orderly and proper planning, residential amenity, undesirable precedent and residential bonuses for corner lots.
The Tribunal determined that a favourable decision to the applicants, no matter how inoffensive or innocuous a two lot subdivision may appear to be, would help to erode the orderly and proper planning process and create an undesirable precedent for other similar lots elsewhere in the City of Gosnells. This could prove disadvantageous to the City of Gosnells' current long overdue planning programme to advance its Local Housing Strategy within the statutory framework.
The application for review was dismissed.

Introduction

The application for review, dated 4 September 2009, was lodged by Landvision on behalf of Damien Moran and Economic Consultants (applicants) against a decision of the Western Australian Planning Commission (respondent, WAPC or Commission) on 7 August 2009 to refuse an application for subdivision of No 2 (Lot 41) Nethercott Street, Huntingdale (subject land) in the City of Gosnells.
The application for review was lodged under the provisions of s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).
Although there were three reasons for refusal included in a letter relayed from the respondent to the applicants on 10 August 2009, the Tribunal was advised at the hearing into the matter on 18 November 2009 that only reason 1 would be pursued by the respondent. Reason 1 states:
The Commission is not prepared to approve the subdivision as the resultant lot sizes would be below the minimum indicated by the Local Government Town Planning Scheme and approval to the subdivision would set an undesirable precedent for the creation of further lots below the minimum requirements.
Advice to the Applicant
1.The Commission notes that although the City of Gosnells' Local Housing Strategy does identify the subject land as potentially suitable for 'R35', the North Huntingdale Housing Precinct Plan states that the density is only suggested. Any increase in zoning density should not be exempt from the usual and proper planning process, in this case a scheme amendment to rezone the land and a proper assessment of any impacts of an increase in residential density.
Section 7.3 of the Local Housing Strategy states that while corner lots connected to sewer with a minimum lots size of 600 [square metres] are eligible for a density bonus, the application of said density bonuses will not occur immediately but rather through Town Planning Scheme processes. It also states 'Provisions for the density bonuses will need to be incorporated into Town Planning Scheme No 6. This will be facilitated via an amendment to modify the Scheme text accordingly'.
2.Approval to the subdivision on the grounds of either point presented as part of the subdivision application would create precedent for the further subdivision of other lots within the area identified as 'R35' on the North Huntingdale Housing Precinct Plan or any other corner lot within areas identified in the City's Local Housing Strategy.

Subject land and immediate locality

The subject land is located on the corner of Nethercott Street and Mildenhall Street, Huntingdale, and can be found on Certificate of Title Volume 1342, Folio 732 on Plan Number 10410.
The subject land has an area of 712 square metres, or 730 square metres inclusive of the corner truncation. It has a northern (rear) boundary of 19.51 metres, an eastern (side) boundary of 36.43 metres, a southern (front) boundary of 14.74 metres with an 8.53 metre truncation to the western (side) boundary of 29.87 metres.
There is an existing dwelling facing Nethercott Street and a small metal shed in the north-east corner of the site. It is intended that the existing residence would remain, but the attached rear pergola would be removed if the subdivision were to proceed.
Abutting the subject land, and on the opposite side of Mildenhall Street, is the Huntingdale shopping centre which principally serves the local community.
Within the street block, which contains the subject land, are 28 lots of 683 square metres and another corner lot of 689 square metres, inclusive of an 18 square metre truncation. The street block, together with nearby adjacent land to the north, comprises the North Huntingdale Housing Precinct 8.11 (NHHP).

Legislation and policy framework

The subject land is zoned 'urban' in the Metropolitan Region Scheme and 'residential' in the City of Gosnells Town Planning Scheme No 6 (TPS 6 or Scheme). It has a coding of R17.5.
Of relevance are the following additional planning documents:
a)Development Control Policy No 2.2 - 'Residential Subdivision' (DC 2.2);
b)City of Gosnells Local Housing Strategy (LHS);
c)Residential Design Codes of Western Australia (2008) (Codes); and
d)City of Gosnells Planning Implementation Framework for Local Housing Strategy and Large Lot Outline Development Plan (ODP) Areas - Policy No 6.4.2.1 (PIFP)

Respondent's position

The position of the respondent is outlined in a statement of issues, facts and contentions (SIFC) dated 14 October 2009. The statement contends:
1)As the Codes have been prepared as a State Planning Policy, the Tribunal is required under s 241(1) of the PD Act to have regard to them in determining a matter. The Codes have also been adopted as part of TPS 6.
2)The proposed subdivision is inconsistent with the minimum and average lot size requirements of the R17.5 coding.
3)The R17.5 coding is a guide for the density of lots in Huntingdale. It has been determined after a rigorous process of weighing the competing goals and needs of the City, the respondent and the community, and gained Ministerial approval.
4)Ad hoc departure from the density guide, where the criteria for such departure in DC 2.2 are not satisfied, would detract from the orderly planning of the locality in the absence of some cogent reason to depart from policy. There is no cogent reason in this case.
5)The appropriate mechanism to facilitate rezoning is to amend TPS 6. The mere fact that the LHS suggests a density code of R35 for the NHHP does not mean that rezoning can be bypassed.
6)Approving the subdivision, as sought by the applicant before rezoning, would undermine cl 1.6(d) of TPS 6.
7)The proposed subdivision does not satisfy the criteria expressed in cl 3.2.3 of DC 2.2, and there is no beneficial outcome for the community if the subdivision was approved.
8)Although the LHS has been adopted by the City, and endorsed by the respondent, it properly anticipates that approval of higher density subdivision would be preceded by an amendment to TPS 6. It is acknowledged that the policy can be departed from for a cogent reason.
9)One of the objectives of the LHS is to encourage development that will enhance the amenity of residential areas to ensure that new housing relates to the character and style of existing residential development. Creating lots substantially below the minimum and average lot size requirement of the R17.5 coding is inconsistent with this objective, especially considering the subject land is opposite the Huntingdale shopping centre, in a relatively prominent location.
10)The creation of undersize lots will generate residential development that is not in keeping with the existing character of the locality, which is based on substantially larger lot sizes.
11)An approval to the subdivision would be inconsistent with the intent of LHS, as expressed in cl 6.6.2, which contemplates density change by way of an amendment to TPS 6.
12)An approval to the subdivision would be inconsistent with the PIFP which refers to the need for amendments to TPS 6 in order for recommended density increases to come into effect, and provides that until such amendments are gazetted, proposals for subdivision will only be supported if compliant with the current residential density code.
13)An approval to the subdivision would create an undesirable precedent for the ad hoc subdivision of land within the City, and this is likely to undermine the Scheme and the orderly and proper administration of planning in the locality.
14)An approval to the subdivision would be a departure from the objectives of established policy and practice.

Applicants' position

The position of the applicants is outlined in their response to the respondent's SIFC. The response, as prepared by Landvision in October 2009, contends in the summary:
1)The respondent's determination relies on the current R17.5 coding in the Scheme and not on the proposed R35 coding in its LHS, which it argues can only be achieved by way of an amendment to TPS 6.
2)A refusal based on (1) above serves only to delay a desirable outcome consistent with the intent of the Scheme and the Government's redevelopment policies.
3)The LHS was subject to public consultation and submissions, and was endorsed by the WAPC. Accordingly, the public are aware of its contents and the implications of their implementation.
4)The proposal does not detract from the orderly planning of the locality as the LHS envisages development of the type that approval to the subdivision will enable. As a corner lot, it can be subdivided without any impact on adjoining lots.
5)An approval to the subdivision would not conflict with the intent of TPS 6 as expressed in the Scheme Report. Also, it would be consistent with the LHS and government policy in respect to redevelopment of inner areas in selected localities, which include the subject land.
6)The Scheme Report, which forms part of the Scheme, allows for medium density development in selected locations without the need for an amendment.
7)There is no need for a Scheme amendment to precede an approval as:
a)the LHS makes provision for development at the proposed density and has already been advertised and accepted by Council and endorsed by the WAPC;
b)there are no drainage or infrastructure issues relating to the proposal but, in any event, Council has the authority under the Scheme to impose conditions in this regard if necessary;
c)an amendment for the lot in isolation would be contrary to the spirit of the Scheme where greater control is not needed. An amendment would also be in conflict with one of the objectives of TPS 6 to reduce rezoning amendments;
d)an amendment for the whole of the precinct would serve little purpose as the proposal has no adverse or ongoing consequences for neighbouring property and amenity; and
e)had there been the need for an amendment as a 'high priority', it would have already been initiated by the City.
8)An amendment to TPS 6 will not ensure orderly development, only an orderly administration of the redevelopment of the City.
9)An approval to the subdivision will not create a precedent but, if it did, it would be a desirable precedent as implementation of the LHS may be a slow process and, in the short and medium term, may be confined to corner lots. In any event, the proposal is consistent with the criteria for the development of corner lots.
10)The proposal will improve the residential amenity of the streetscape that currently comprises side fences with no surveillance over the adjoining public area.
11)The proposal is consistent with government infill development policies which promote higher density development in selected and identified areas.

Planning issues

The principal planning issues are:
1)Should the proposed subdivision be approved, having regard to the relevant provisions of the statutory and policy documents?
2)Would the proposed subdivision, if approved, set an undesirable precedent?

Assessment of the proposal

Background

On 1 May 2009, an application for approval of a freehold subdivision was lodged with the respondent and subsequently referred to Western Power, the Water Corporation, the Fire and Emergency Services Authority of Western Australia (FESA) and the City of Gosnells.
The subsequent advice from these agencies showed that both the Water Corporation and Western Power had no objection to the subdivision, subject to the imposition of appropriate conditions. FESA raised no objection to the subdivision.
The response from the City of Gosnells, dated 14 July 2009, advised:
1.The proposed subdivision does not comply with the minimum and average (effective) lot sizes prescribed for the R17.5 density coded land in the Residential Design Codes (2008) and WAPC Policy DC 2.2.
2.The proposed lots do not comply with the maximum, 5% minimum site area variations of up to 5% provided for at clause 3.2.3 of DC 2.2.
3.Approval for the subdivision would be contrary to the orderly and proper planning of the area and the effective implementation of the City of Gosnells Town Planning Scheme No 6.
Advice Note:
1.The Commission and proponent are advised that the subject land is within the City's Local Housing Strategy North Huntingdale Sub Precinct B for which R35 density is proposed. The necessary planning requirements, in this case a scheme amendment to recode the precinct to a higher density, have not yet occurred.
On 7 August 2009, the Commission refused the application for subdivision in the terms of [7] above.
The application for review was signed and lodged with the Tribunal on 4 September 2009.

Legislation and policy provisions

City of Gosnells Town Planning Scheme No 6 (2002)

The following clauses of the Scheme are relevant to this matter:
1.6The aims of the Scheme are:
a)To provide for a range of housing in neighbourhoods, with a community identity and high levels of amenity.
…
d)To ensure the orderly and proper use and development of land within the District.
…
f)To assist in the effective implementation of regional plans and policies …
…
2.1Scheme determinations to conform with local planning strategy
Except to the extent that the Scheme Report is inconsistent with the Scheme, determinations of local government under the Scheme are to be consistent with the Scheme Report.
(The Scheme Report shall replace the Local Planning Strategy until a Local Planning Strategy has been prepared and endorsed under the Town Planning Regulations 1967. When the Local Planning Strategy has been endorsed, the Scheme Report shall be read as Local Planning Strategy.)
2.2Local planning policies
The local government may prepare a Local Planning Policy in respect of any matter related to the planning and development of the Scheme area …
…
2.3Relationship of local planning policies to Scheme
2.3.1If a provision of a Local Planning Policy is inconsistent with the Scheme, the Scheme prevails.
2.3.2A local Planning Policy is not part of the Scheme and does not bind the local government in respect of any application for planning approval but the local government is to have due regard to the provisions of the Policy and the objectives which the Policy is designed to achieve before making its determination.
…
4.2Objectives of the Zones
•Residential Zone
To provide for residential development at a range of densities with a variety of housing to meet the need of different households through the application of the Residential Design Codes (2002).
…
5.2Residential Design Codes
…
5.2.2Unless otherwise provided by the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.

City of Gosnells Scheme Report (2001)

Under the heading of 'Local Planning Strategy', the Scheme Report advises:
…
As an overall strategy for residential densities and to reflect the WA Planning Commission's Regional Residential Density Guidelines, it is proposed that there be increased residential densities, generally within 800 metres of railway stations and other activity nodes.
…
For areas outside of the Station Precincts it is proposed to also allow for some medium density development in order to provide for a range of housing types to address the needs of changing household and age structure within the population and to allow for the efficient use of urban land i.e. maximising use of existing infrastructure. Council has adopted a position that 10% of the remaining areas can be developed at the R30/40 standard. This is an arbitrary figure which is currently being reassessed as part of the detailed review of Council's Local Housing Strategy. The review will examine the opportunities for increased densities around activity nodes such as retail areas, public open space and transport centres, taking into account inter-alia the age and type of housing stock, lot sizes, the availability of established community facilities including private infrastructure. For the present time the emphasis will be on satisfaction of defined locational criteria applied to specific geographical locations as opposed to the imposition of an arbitrary 10% of the housing stock. This may well lead to the need to undertake amendments to Scheme No 6 particularly in relation to the mix of residential densities.
The locational criteria Council uses in determining proposals seeking the higher R30/40 densities outside the Strategic Residential Localities are:
•sewer facilities;
•drainage;
•proximity to public transport; and
•retail, cultural, medical and open space facilities and services.
Apart from allowing for R30/40 densities outside of the Strategic Residential Localities, these areas are otherwise earmarked to provide for traditional family housing and to preserve the existing densities and residential amenities. This in effect complies with the WA Planning Commission's Regional Residential Density Guidelines in that R30/40 densities are also promoted in areas around shopping precincts, schools and recreation facilities. The only difference is that specific sites are not coded on the Scheme Maps. This has been done so as to give Council greater control, particularly where there are drainage or servicing problems as to not allow redevelopment as of right to the detriment of the amenity and character of established residential areas. This also limits ad hoc unco-ordinated redevelopment. The review of the Local Housing Strategy will provide greater guidance and direction in identifying the geographic locations that are most suited for higher densities.

City of Gosnells Local Housing Strategy (2006)

The LHS was endorsed by the Commission in October 2005 and formally adopted by the City in February 2006.
The methodology used to develop the strategy included the identification of 16 housing precincts. Eleven of these were advertised as Local Housing Strategy Plans, including the NHHP within which the subject land falls.
The key recommendations were:
•That residential densities included within the City's District Zoning Scheme shall generally reflect those as identified in the endorsed Local Housing Strategy Plans for each Precinct.
•That an Implementation and Monitoring Program (Program) is required to ensure the Strategy is implemented in a coordinated and planned manner. This Program will:
1)provide likely timeframes and recommendations for the progression of development within the areas identified for higher densities through the use of guided development schemes, outline development plans and/or policies, and
2)outline the process to monitor the implementation of the key recommendations, the effectiveness of the Strategy and the process or reviewing the document.
The implementation of the recommendations for each precinct was addressed in cl 6.6.2:
The City should pursue residential densities reflecting those as identified in the endorsed Local Housing Strategy Plans for each Housing Precinct. The implementation will ultimately be carried out via amendments to Town Planning Scheme No 6.

City of Gosnells Planning Implementation Framework for Local Housing Strategy and Large Lot Outline Development Plan (ODP) Areas - Policy No 6.4.2.1

The reason for this policy is to provide a framework for implementing the LHS recommendations for land identified for increased residential density.
Under the LHS, there are 11 Housing Precincts advertised as Local Housing Strategy Plans with each precinct containing one or more areas identified for an increase in density. For the purpose of defining a minimum area which an amendment to a higher density should cover, the areas of higher density have been divided into sub-precincts.
On the matter of higher density, and the need for a Scheme amendment, the policy addresses this in cl 1.2:
For recommended density increases to come into effect, amendments need to be made to [TPS 6] …
The subdivision of land at the existing zoning is addressed at cl 1.3:
Until such time as an amendment for a precinct or part of a precinct is gazetted, proposals for subdivision and development will only be supported where compliant with the current residential density code and meeting all other requirements of TPS 6 and relevant policies.
The prospect of Council supporting an application for subdivision included in an area identified for higher density is addressed in cl 1.10, where subdivision would:
i)Not prejudice the future planning and development of the surrounding area
ii)Create regular shaped blocks
iii)Not be of a lesser or higher density than the current density coding and enable further subdivision or development in accordance with that density coding
iv)Create lots or dwellings with direct road frontage
v)Be of a density that is consistent with the density of development on existing adjoining lots
vi)Accommodate the continuation, construction or connection (as the case may be) of existing, future or unfinished roads, infrastructure or open space.
In the Policy Table, the subject land falls into the North Huntingdale Precinct and into the North Huntingdale B Sub Precinct. It falls into a Priority 1 category (the highest priority) for implementation.

Development Control Policy No 2.2 - 'Residential Subdivision'

This policy sets out the Commission's requirements for the subdivision of land into residential lots, and generally follows the standards set down in the Codes.
Under cl 3.2.3, the Commission will consider variations to minimum and average lot sizes specified in the Codes, provided the variation is no more than 5% and provided the variation has been demonstrated to have a particular beneficial outcome for the community.

Residential Design Codes of Western Australia (2008)

The Codes were prepared as a State Planning Policy by the Commission under the provisions of s 26 of the PD Act.
The General Site Requirements are outlined in Table 1 which requires a 'minimum' lot size of 500 square metres and an 'average' lot size of 571 square metres in an area coded R17.5.

The matter of an alternative approach to implementing the Local Housing Strategy

At the hearing on 18 November 2009, Mr JR Bouwhuis, a qualified town planner and Senior Project Planner for the Department of Planning, tabled the Minutes of the Ordinary Council Meeting of the City (Exhibit 2), dated 27 October 2009. Mr Bouwhuis pointed out that although a proposal to amend TPS 6 by way of Amendment 111 had been adopted: ' … it's not a seriously entertained planning proposal yet, because it hasn't been out for advertising'.
Nevertheless, it is the case that at that meeting, the Council resolved, among other things, to initiate Amendment 111 to TPS 6 and to adopt a draft 'Local Planning Policy - Subdivision and Development of Land' with a Split Density Coding for the purposes of advertising.
It appears that Amendment 111 proposes to implement the recommendations of the LHS for those lots zoned Residential R17.5 (which would include the subject land), R40 and R60 to the split codings of R20/25, R20/30, R20/35, R20/40 and R20/60. These proposals are to be the subject of advertising and public information campaigns throughout the City up until mid-January 2010.

The matter of undesirable precedent

The matter of undesirable precedent was addressed in the respondent's SIFC as outlined at [15(13)] above.
At the hearing, and in response to a question on the matter from Mr T Moran for the applicants, Mr Bouwhuis advised:
The consequences of approval on the ground would be that other lots within the North Huntingdale Housing Precinct that exist on a corner that have been earmarked for an R35 code would also want to do a similar subdivision and depart from the regime that upholds the R17.5 code. … so you would have numerous lots within the housing precinct applying for a demolition licence and subdividing to a similar density, and there's no cogent reason to say that the undesirable precedent would just be limited to the North Huntingdale Housing Precinct because there's 15 other precincts that propose density increases of some magnitude within the City of Gosnells.
The position of the applicants' is expressed in their response to the respondent's SIFC:
3.1We do not accept that any decision of the WAPC or the Tribunal sets a precedent as each case should, and is in our experience, determined on its merits.
3.2Notwithstanding in the North Huntingdale Precinct, there are four corner lots to which a precedent could be argued … .
…
3.4If the corner lots were to be subdivided this would be an interim step and if replicated in other similar circumstances in other precincts, we submit would be a desirable precedent, as it would meet the intent of the Scheme and the Government's infill policies in desirable locations.
The matter of adverse planning precedent was addressed in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls) at [74] where the following circumstances were listed in which precedent is a relevant planning consideration:
(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.
Although the Tribunal would agree with the applicants that each case should be determined on its merits, there is certainly no reason why the Nicholls test cannot be applied in this determination.

The matter of orderly and proper planning

The position of the respondent is that orderly and proper planning is best achieved by adherence to the provisions of the Codes and TPS 6 and if any change to the R17.5 code is contemplated, it should be done by way of a Scheme amendment.
At the hearing, the following exchange took place:
Mr Moran:Mr Bouwhuis, coming back to the matter of orderly and proper planning, if an amendment occurs in the North Huntingdale precinct, how will that facilitate orderly and proper planning? How will things be different to approving this proposal now?
Mr Bouwhuis: Because you would implement and then gazette the amendment, which would uphold the provisions of the town planning scheme to ensure that the use and development of land accords with orderly and proper planning, and you would have the correct density on the subject land to facilitate the proposed subdivision and you would also have an advertising procedure that was in place to facilitate the precedents in the area that would be able to comment on the proposed amendment prior to it being gazetted. So you would orchestrate an orderly and proper planning process to increase the density of the subject land.
The position of the applicants is that the LHS sets the direction for medium density development within the North Huntingdale Housing Precinct and that this direction accords with the strategic direction of the higher order government policy documents, Network City and Directions 2031.
The applicants also argue that the Commission has the authority to approve a subdivision contrary to the R17.5 coding as provided for under s 138(3)(a) of the PD Act:
The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if -
(a)the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State Planning Policy that deals with substantially the same matter.
At the hearing, the following exchange took place:
Mr Bouwhuis: So, then, what is the statutory requirement to facilitate a town planning scheme amendment?
Mr Moran:I'm saying that no amendment is necessary here. The Commission has the power, the authority, to determine a subdivision application in its strategic interests and, effectively, the local authority will then manage the development resulting from that subdivision in accordance with the R Codes, in accordance with its policies and in accordance with its regulations.
In Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark), the Tribunal determined that approval of the two lot subdivision in the Shire of Busselton was appropriate in the particular and somewhat unusual circumstances of the case. This was because the proposed lots, which were considerably less in size than specified in the Codes:
• … formerly comprised two allotments of approximately the size of the proposed allotments;
•the proposed allotment sizes were consistent with that which is characterised in the locality;
•there would not be any significant streetscape impact; and
•there would not be any loss of natural vegetation.
It was also determined that neither of the criteria listed in Nicholls at [45] applied, with the result that precedent was not a relevant planning consideration in that case.
The test for the Tribunal in this matter is to determine whether the particular circumstances of the case provide a cogent reason to uphold the application for review.

The matter of residential amenity

The matter of residential amenity was raised in the witness statement of Mr Bouwhuis in the context of cl 3.4.1 of DC 2.2 wherein single residential lots are preferred as rectangular blocks with a greater depth than width to maximise private space, privacy and amenity.
Mr Bouwhuis argued:
In my view, the proposed subdivision will generally create square shaped lots with the area of private open space associated with each proposed lot compromised compared to the private open space to other single houses within the R17.5 zoning in the locality, resulting in the development of land that is inconsistent with clause 1.6(d) of TPS 6 and DC 2.2.
In my opinion, the residential amenity of the locality is likely to be compromised for this reason.
The position of the applicants was oriented towards streetscape, and the likely improvement to residential amenity resulting from a new residence built on the proposed rear 308 square metres lot facing Mildenhall Street.
The applicants provided photographic evidence of a site at the corner of Onslow Road and Fortune Street, Shenton Park in the City of Subiaco of the amalgamation of Lot 72 with part of Lot 71 to produce two lots (Lot 152 and Lot 153) of 371 square metres each. There were new residences built on the two new lots.
The point the applicants were making to the Tribunal was the improvement to the streetscape of the redevelopment compared to the side fences of properties on the opposite (west) side of Fortune Street, and the existing side fence on the subject land facing Mildenhall Street.
Although the Tribunal acknowledges the substance of the arguments put by the parties, the issues before it are not to do with 'development', but rather the consequences of 'subdivision' in terms of policy, statutory context and precedent.

The matter or corner lots and density bonuses

Under cl 7.3.3 of the LHS, it advises that where a landowner owns a corner lot that can only be developed with a single dwelling under TPS 6, Council may support the development of a second dwelling as a means of improving passive surveillance.
However, in order to qualify for this 'density bonus', any corner lot would need to have a minimum area of 600 square metres, be connected to a sewer, achieve improved passive surveillance and satisfy relevant design guidelines.
The policy also advises that the coding of lots will not change, rezoning will not be supported and an R30 code will be used for assessing development standards for any proposal.
As the clause is silent on the question of subdivision, it is of little assistance to the Tribunal in assessing this matter.

Conclusions

The application for review was lodged against a decision of the respondent to refuse a two lot subdivision on the subject land on the grounds that the resultant lot sizes would be below the minimum specified in TPS 6, and that an approval would create an undesirable precedent.
In undertaking this review, the Tribunal examined the respective position of the parties, the background to the proposal, the relevant legislation and policy provisions, and matters relating to orderly and proper planning, residential amenity, undesirable precedent and residential bonuses for corner lots.
The position of the respondent is that the prime planning documents are the Codes and TPS 6; that the proposed subdivision is inconsistent with the minimum and average lot size requirements of the R17.5 coding, and to grant an approval without an amendment to the Scheme would be contrary to orderly and proper planning. Also, it was argued that to approve an ad hoc subdivision would create an undesirable precedent within the City.
The position of the applicants is that an approval would be consistent with higher-order government settlement policy to redevelop inner areas in selected localities, and would not conflict with the intent of TPS 6 as expressed in the Scheme Report and the LHS. It is also argued that the Scheme is outdated and that the proposed subdivision, at a density coding of R30, would accord with the extensively advertised LHS and with orderly and proper planning.
The applicants claim that there is no need for a Scheme amendment to precede subdivision approval, that the subdivision would not create an undesirable precedent and that it would be consistent with the criteria for the development of corner lots. Also, that the subsequent development on the proposed rear lot would help to improve the residential amenity of the existing streetscape.
In examining this matter, the Tribunal is satisfied that the overall intent of the Scheme, the LHS and the PIFP is that the orderly and proper planning process to increase density within the City is to be achieved by way of an amendment to TPS 6. The processes of subdivision and development at the appropriate coding would then follow.
However, what is clear from the Council Minutes of 27 October 2009 is that the implementation timelines to amend the Scheme, as expressed at 50 of the LHS, have not been met. It was expressed in the Minutes in this way:
The City has reviewed the current approach to implementation of the LHS in light of the difficulties and delays being experienced in this regard. The current approach is considered cumbersome, administratively difficult and ineffective.
Other relevant points made in the report to Council include:
(a)There are approximately 3,500 properties throughout the City that have been identified in the LHS for an increase in residential density, based on their proximity to commercial centres, public transport nodes or community facilities.
(b)Development of these properties at the appropriate coding in the LHS would yield approximately 11,000 additional dwellings.
(c)An implementation programme in line with (a) and (b) above would accord with regional planning strategies expressed in Network City and Directions 2031.
(d)TPS 6 needs to be amended for the density increases identified in the LHS to come into effect.
(e)Responding to landowner complaints about lack of progress on the implementation programme of the LHS is preventing progress on that programme.
(f)A timeline of between 12 to 18 months to finalise Amendment 111 is anticipated.
What is encouraging to the Tribunal is that the ponderous administrative processes to date to implement the LHS should be considerably advanced by way of the omnibus Amendment 111, but specific staff allocations at both State and Local level would be needed to streamline, and hopefully reduce, the anticipated 12 to 18 months timeline.
On the matter of undesirable precedent, although the Tribunal accepts that each case needs to be treated on its merits, it finds that there is no compelling reason(s), as appears in Landpark, to depart from the Codes or the limited flexibility provisions of DC 2.2. To do so would find the result so far removed from the minimum and average lot size provisions of the R17.5 code as to be objectionable under the first criterion of undesirable precedent in Nicholls.
Again, as far as the second criterion in Nicholls is concerned, the Tribunal considers that if an approval were given at this point in time, there is more than a mere chance or possibility that later undistinguishable applications could come forward, not merely within the NHHP, but elsewhere within the City. The matter of precedent is, therefore, a relevant planning consideration in this case.
The Tribunal believes that a favourable decision to the applicants, no matter how inoffensive or innocuous a two lot subdivision may appear to be, would help to erode the orderly and proper planning process and create a precedent elsewhere in the City that could prove undesirable in the current long overdue planning context of advancing the LHS within the statutory framework.

Order

The Tribunal makes the following order:
The application for review is dismissed.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER

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Citations

LANDVISION and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 3

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Nicholls v Western Australian Planning Commission [2005] WASAT 40

Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130