Lawrence and Western Australian Planning Commission - [2008] WASAT 269

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LAWRENCE and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 269

MEMBER: MR M SPILLANE (MEMBER)

HEARD: 12 JUNE 2008

DELIVERED : 14 NOVEMBER 2008

FILE NO/S: DR 98 of 2008

BETWEEN: BEVAN LAWRENCE
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Corner lot - Residential Design Codes of Western Australia (2008) - R10 density coding - Average and minimum lot size requirements - Town planning scheme - Section 138 of Planning and Development Act 2005 (WA)

Legislation:

City of Nedlands Town Planning Scheme No 2, cl 5.3.3
City of Nedlands Town Planning Scheme No 3 (draft)
Planning and Development Act 2005 (WA), s 138, s 138(2), s 138(3), s 241, s 252(2)
Residential Design Codes of Western Australia (2002), cl 3.1.3 A3
Residential Design Codes of Western Australia (2008), cl 6.1, cl 6.1.3 A3, cl 6.1.6 A3

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant: Mr T Moran (Acting as Agent)
Respondent: Mr J Bouwhuis (Acting as Agent)

Solicitors:

Applicant: Landvision
Respondent: Western Australian Planning Commission

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Bevan Lawrence sought a review of the refusal by the Western Australian Planning Commission of a two lot subdivision. The land was coded R10 under the local planning scheme and both proposed allotments were less than the minimum site area set by Table 1 of the Residential Design Codes of Western Australia (2008).
The Tribunal confirmed that although it had the discretion to approve allotments which are smaller than the minimum set if the circumstances are warranted. In the present case, it was not convinced that there were sufficient planning reasons to depart from the policy and support the application, and the application was refused.

Introduction

The matter involves an application pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to review a decision of the Western Australian Planning Commission (respondent or Commission) to refuse an application by Mr Bevan Lawrence (applicant) to subdivide his property at No 35 (Lot 3) Waratah Avenue, Dalkeith (property), an area of 1,598 square metres (excluding truncation) into two lots being 800 square metres and 798 square metres respectively.
The respondent's reasons for refusing the application were:
1.The proposed subdivision does not comply with Commission Policy DC 2.2 - Residential Subdivision, a provision of Statement of Planning Policy No 1 - State Planning Framework (Variation No 2), by reason of the minimum and average lot sizes being below the area nominated by the R10 Residential Planning Code for the subject land.
2.The proposed subdivision does not comply with the City of Nedlands Town Planning Scheme No 2 by reason of the proposed lots being below the minimum and average lot size requirement for the R10 coding applying to the land.
3.Although there are some smaller lots nearby, the lots proposed are smaller than the prevailing lot size in the locality. Approval to the subdivision would set an undesirable precedent for other similar subdivisions nearby.

Submissions

Applicant's submissions

The applicant put forward three main propositions in support of the application, namely:
1.The R Code provisions of the City of Nedlands TPS No 2 which are controls for the development and use of land have been wrongly used by both the WAPC and the City of Nedlands as the sole means by which to adjudge the proposed subdivision.
2.The proposed subdivision is not in conflict with the provisions of the City of Nedlands Town Planning Scheme No 2 and in any event is capable of approval under the provisions of Section 138(3) of the Planning and Development Act 2005; and
3.Approval of the proposed subdivision would not set an undesirable precedent for other similar subdivisions locally.
Apart from the application documents and the oral evidence presented at the hearing, the applicant filed a number of written submissions namely:
a)A 'Submission to Support an Application to Review', dated March 2008.
b)A Response to the Respondent's Statement of Issues, Facts and Contentions, dated April 2008.
c)The applicant's Statement of Issues, Facts and Contentions, dated May 2008.
d)A statement of evidence by Mr Trevor Moran, town planner and licensed surveyor, dated 6 June 2008.
The applicant referred, in particular, to the case of Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark) where the Tribunal determined it appropriate in the circumstances of that case, to approve allotments which were smaller than the minimum area for the coding of the land.
The applicant submitted that the circumstances in the present case would also allow for such a departure as there would be no significant streetscape impact from the current proposal and the proposed lot sizes would, in the applicant's view, be consistent with many corner lots in the locality. The applicant also submitted that there are many more lots in the general area that do not meet the R10 minimum lot sizes.
In 1982, the previous owner of the property applied to the Town Planning Board, as it then was, to subdivide the property into two allotments in a battleaxe configuration. The Town Planning Board, in refusing that application, commented:
The Board would, however, be prepared to consider subdivision of the land into two regular shaped and equal sized lots.
No further application was made at that time.
The applicant submitted that the current proposal would result in lots of 800 square metres and 798 square metres respectively which would provide for low density living equivalent to R12 development density and if approved would retain an overall average density of R10 for the street block in which the proposed subdivision falls.
In Mr Moran's opinion, any perceived conflict between the proposal and the Residential Design Codes of Western Australia (2008) (2008 Codes) was of a minor nature and if approved:
•the average density of R10 would be maintained for the street block;
•the frontage of each of the lots would exceed the 20 metre minimum required for an R10 development;
•any development of the lots would be restricted to single dwellings set back 9 metres from the primary road consistent with development of the surrounding areas as per TPS 2; and
•corner lots in the City of Nedlands have been subdivided previously in a manner similar to the subject land.
Furthermore, in Mr Moran's view, the potential for future subdivision applications to be approved, using an approval for this subdivision as a precedent would need to exhibit similar characteristics and he believed there are very few lots which have similar characteristics.

Respondent's submissions

Mr Jason Bouwhuis gave oral evidence and provided a witness statement opposing the application on behalf of the respondent.
He argued that the proposed subdivision would impact on the existing streetscape characterised by larger lots, particularly large corner lots, wide frontages and a perception of openness and spaciousness along Waratah Avenue.
He stated:
In my view, in the interests of orderly and proper planning, there is an obvious expectation that for land which is coded R 10, that lots less than an average of 1,000 m2 or minimum of 875 m2 will generally not be approved. This view is supported by clause 3.2.1 of the Respondent's Development Control Policy 2.2 - Residential Subdivision ('DC 2.2') which provides that the minimum lot size and frontage requirements of the relevant Code will form the basis for the subdivision of residential land.
The exercise of discretion to approve a lot less than the average or minimum lot size is guided by clause 6.1.3 of the Residential Design Codes ('RCodes') which provides for a variation to the minimum site area up to 5% less than specified in Table 1 subject to various criteria. ...
The percentage variation for both proposed lots exceeds the 5% minimum variation permitted by the RCodes and DC 2.2 …
Mr Bouwhuis produced a table which showed that the two proposed lots were 8.6% and 6.5% respectively smaller than the minimum lot size and that together they are approximately 19% smaller than the average lot size. He considered that a 19% variation to the average lot size requirement is not minor but significant.
Mr Bouwhis agreed with the proposition put by the applicant that the proposed subdivision was not in conflict with City of Nedlands Town Planning Scheme No 2 (TPS 2) and stated:
47.The Applicant in its SIFC has addressed in great detail the operation of s 138(3) of the PD Act. Given the Respondent has not argued that the Proposed Subdivision is in 'conflict' with TPS No 2 for the purposes of s 138(2) of the PD Act, in my opinion, there is no requirement to address the application of the s 138(3) of the PD Act.
48.Notwithstanding my view of the relevance of the Applicant's argument regarding s 138(3) of the PD Act, I am of the view that the proposed subdivision is generally inconsistent with the RCode applicable to the Subject Land.
Mr Bouwhuis further submitted that the proposed subdivision in creating two undersized lots would contribute to a change of character in the area, creating a more intense form of residential development that is not readily evident in the surrounding properties to which the subject land relates.
Mr Bouwhuis went on to state that the subject land is located amongst properties that substantially comply with the minimum 1,000 square metre requirement (especially within the street block) and in its current size, the property contributes to the existing low scale character of the area.

Consideration

Should the proposed subdivision be approved in the exercise of planning discretion?

As outlined above, it was common ground between the parties that the proposed subdivision is not in conflict with TPS 2 for the purposes of s 138(2) of the PD Act for largely the same reasons as outlined by Senior Member Parry in Landpark at [21] [28].
To use the words of Senior Member Parry in the context of this case, although approval of the subdivision does not conflict with TPS 2, as a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act, in the exercising of planning discretion, the Commission and the Tribunal on review must give due regard to TPS 2 and to its obvious expectations that generally the development of a single house on land coded R10 under the TPS 2 requires an average site area of 1,000 square metres, a minimum site area of 875 square metres and a minimum frontage of 20 metres and the Commission will not, therefore, generally approve an allotment of a lesser size or frontage.
The Tribunal has the discretion to allow a subdivision below the average or minimum site areas and the density provisions of the 2008 Codes are intended to be guidelines for the Commission and the Tribunal on review in considering applications.
Clause 6.1 of the 2008 Codes under 'Acceptable Development' notes:
The minimum areas stipulated in table 1 are not subject to variation except to set out in clauses 6.1.2 and 6.1.3 of this element.
At cl 6.1.3 under the heading 'Variations to the minimum site area requirements', under 'Performance Criteria' the 2008 Codes state:
The WAPC may approve the creation of a lot survey strata lot or strata lot of a lesser minimum and/or average site area than that specified in table 1, and the WAPC or a council may approve the creation of a survey strata lot or a grouped dwelling of a lesser minimum site area than that specified in table 1 provided that the proposed variation would meet the following criteria:
•be no more than five percent less in area than that specified in table 1; and
•facilitate the protection of an environmental or heritage feature; or
•facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention; or
•facilitate the development of lots with separate and sufficient frontage to more than one public street; or
•overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature; or
•allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or
•achieve specific objectives of the local government's scheme and, where applicable, the local planning strategy.
Apart from the 2008 Codes, the Tribunal is also required to give due consideration to the Commission's Development Control Policy 2.2 - Residential Subdivision (DC 2.2) as it is a provision of State Planning Policy 1 - State Policy Framework.
Clause 3.2 of DC 2.2 under the heading 'Lot Sizes' states:
3.2.1Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land. ...
Clause 3.2.3 states:
In existing residential areas, the Commission will only consider subdivision or survey-strata applications proposing variations to lot sizes for Single Houses and Grouped Dwellings below the minimum site area requirements (i.e. below the minimum and below the average lot sizes) prescribed in Table 1 of the RCodes, or elsewhere in the RCodes, where the following criteria are met:
Site Area Variations to the Average Lot Size Only
For Single Houses, and Grouped Dwellings on land not subject to the transition provisions under Acceptable Development Provisions 3.1.3 A3 iv or v on p.45 of the R-Codes:
•all lots in the subdivision meet the minimum lot size requirements;
•the variation reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the RCodes; and
•the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the Commission forms the opinion that it will have a particular beneficial outcome for the community.
and under the heading 'Site Area Variations to the Minimum and Average Lot Size' at cl 3.2.3, it states:
For Single Houses, and Grouped Dwellings on land not subject to the transition provisions under Acceptable Development Provisions 3.1.3 A3 iv or v on p.45 of the R-Codes:
•the minimum lot size variation only applies to one lot in the subdivision;
•the variation reduces the area of that one lot by no more than 5% of the minimum area specified in Table 1 or elsewhere in the RCodes;
•the variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the RCodes; and
•the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the Commission forms the opinion that it will have a particular beneficial outcome for the community.
DC 2.2 is dated July 2003 and refers to the 2002 Codes and to date, has not been amended to take into account the 2008 Codes. However, the Tribunal, in determining this matter, notes that it was common ground between the parties that the 2002 Codes have been amended and updated as the 2008 Codes, and the current reference in DC 2.2 should now be read to refer to cl 6.1.3 A3 of the 2008 Codes.
The expectation that land zoned R10 requires a minimum area of 875 metres and an average of 1,000 metres needs to be carefully considered, as do the provisions of DC 2.2. As outlined above, the subdivision as proposed does not comply with the requirements of the 2008 Codes or the variations allowed within the performance criteria or DC 2.2.
Section 241 of the PD Act must also be noted in that it requires the Tribunal to have due regard to relevant planning considerations including 'any state planning policy which may affect the subject matter of the application'.
Although the policies guide the exercise of planning discretion they do not replace it and are not to be inflexibly applied. However, as Barker J stated in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24] :
... the relevant consideration in many applications will by why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. ...
It is accepted that the frontage of both the proposed lots will comply with the R10 coding standard and in respect of streetscape, it is clear from the plans, photographs and submissions that what is proposed in the present case is that the area of land currently occupied by a tennis court, will form a new lot on which a new dwelling would be built.
It is also accepted that any dwelling would comply with cl 5.3.3 of TPS 2 and be set back a distance of at least 9 metres from the street.
At the conclusion of the hearing, the parties agreed to provide the Tribunal with historical data of the subdivision of the Dalkeith locality together with evidence of the lot sizes in the Dalkeith locality.
A document dated 24 July 2008 and headed 'Submission of information requested by Tribunal in Order dated 19-6-08' was lodged which attached two plans titled:
1)A plan of the Dalkeith locality showing lot sizes in accordance with the June 2008 update of Landgate's records; and
2)A plan showing historical subdivision in the Dalkeith locality which has been complied from original survey records.
A copy of both of these plans are attached to these reasons.
That submission explained:
This part of Dalkeith was subdivided incrementally. The subject land and the area to the west was subdivided in 1913. Land to the east was part subdivided in 1902 and part subdivided in 1921. Land provided initially for a school site was subsequently subdivided in 1936.
Apart from the major historical subdivisions, nine twolot subdivisions appear to that have taken place in the Dalkeith locality since the last of the original major subdivisions in 1936 and eight of these have been corner lots. Eight lots were also amalgamated during this time and some boundary adjustments and one strata conversion also took place.
The Tribunal notes that all of the nine subdivisions referred to appear to have taken place prior to the introduction of TPS 2 in April 1985.
The smaller lots along Joyce Street referred to by the applicant were part of a particular subdivision in 1913 as were the smaller lots in or around Bellevue Avenue in 1936.
Minimum and average lot sizes are generally used in planning schemes such as TPS 2 as a planning tool.
As the 2008 Codes Explanatory Guidelines explain:
The process of allocating an R-Code in the local planning scheme requires a careful assessment of the relationship between the lot sizes prevailing in a locality, current trends in demand for particular types of housing and any adopted strategic planning policy relevant to residential density. The relationship of these factors allows a predication of the type of development or redevelopment likely to result from selection of a particular code.
Under the heading 'Residential Precincts or Localities' it states:
Planning by precincts is particularly relevant in older areas where redevelopment or infill development is taking place and there is generally an established character that, in most cases, is valued.

All of the Dalkeith locality is coded R10 meaning that across the entire locality, the general rule is that the average lot size will be 1,000 square metres and the minimum 875 square metres.
An examination of the plan headed 'Lot Sizes Dalkeith Locality' shows that generally to be the case with a limited number of exceptions.
For the purposes of considering this application, if one looks only at the northern half of the Dalkeith locality on the plan titled 'Historical Subdivision - Dalkeith Locality' by drawing a line east to west along Carroll Street and Circe Circle North, it would appear that of the 336 lots in that northern portion only 11, or approximately 3%, would be equal to or less than the two lots proposed.
Of those 11 lots, four abut Joyce Street and were created by the 1913 subdivision, the others were created in 1959, 1964 and 1967 respectively and there is no record of when the final three, all of which abut Adelma Road between Waratah Avenue and Circe Circle North were created.
The applicant, in giving evidence, confirmed that he was a member of City of Nedlands' Council between 1999 and 2003, and throughout that time, Council, to his knowledge, did not support any subdivision applications that did not comply with the policy because they were waiting for the City of Nedlands Town Planning Scheme No 3 (draft TPS 3) which was then and still is in draft form.
As to Council's view in respect of corner lot subdivision in Dalkeith, he explained that that 'went to Council and went on 8/7 vote with me voting against it, because I felt I was obliged to because they had had public meetings and I wasn't sure I had a mandate for it ...'.
Mr Bouwhuis, for the respondent, confirmed that draft TPS 3 has not yet been adopted by the City of Nedlands.
Mr Bouwhuis also explained that the City of Nedlands has longterm planning objectives to increase residential densities in carefully planned strategic locations and that arising from a housing diversity study carried out by the City of Nedlands in 2006, Council identified precincts where increased density and housing diversity are actively supported and encouraged but the subject land is not included within any of those precincts.
It is recognised by the Tribunal that the process undertaken by Council has included public consultation and as the applicant explained action groups both for and against have been formed. However, it is unfortunate those processes have been ongoing for so long and as yet, no clear end date is in sight which would give residents certainty.
As stated in the 2008 Codes and referred to earlier, '[p]lanning by precincts is particularly relevant in older areas where redevelopment or infill development is taking place and there is generally an established character that, in most cases, is valued' and so the process currently being undertaken by Council needs to be recognised and given some weight.
The locality is currently characterised by large lots that have substantial dwellings surrounded by gardens and the R10 coding appropriately reflects the overall pattern and density of the locality.
Given the character of the locality, the Tribunal does not agree that there would be no significant streetscape impact from the current proposal. The proposed subdivision is not considered to be consistent with the lot pattern of the locality and would, in the Tribunal's view, be contrary to orderly and proper planning.
Furthermore, given the extremely limited history of subdivision in the area and there being nearly as many amalgamations to form even larger lots, no cogent planning reason currently exists to depart from or not to apply the long established planning policies referred to.
Neither should the City's ongoing efforts to introduce precincts where subdivision will be supported, be preempted at a time when densities under the local scheme are under active review, and input by both Council and the local community are ongoing.
There is nothing in the present circumstances that make this case exceptional or give adequate reasons why the policies should not be followed in this case.
In all the circumstances the Tribunal is not persuaded that there are sufficient planning reasons why the current application should be supported and the application is therefore refused.

Orders

For the above reasons, the Tribunal therefore orders:
1.The application for review is dismissed.
2.The decision under review is affirmed.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M SPILLANE, MEMBER

Attachment 1

Attachment 2