Maley and Anor and Western Australian Planning Commission
[2005] WASAT 181
•21 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MALEY & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 181
MEMBER: MS M CONNOR (MEMBER)
HEARD: 28 APRIL 2005
DELIVERED : 21 JULY 2005
FILE NO/S: RD 60 of 2005
BETWEEN: NEVILLE STEPHEN MALEY
ERICA NOELLE MALEY
ApplicantAND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision refusal - Lot sizes non-compliant with Coastal and Lakeland Planning Strategy, town planning scheme and Policy DC 3.4 - Undesirable precedent - Substantial planning merits - Cumulative effect of further subdivision of land
Legislation:
State Administrative Tribunal Act 2004 (WA), s 27(2)
Town Planning and Development Act 1928 (WA), s20, s20(5), s24(5), s26(1)(a)(iii), s61(1)(a)
Result:
1. Application for review dismissed
2. The decision for review be affirmed
Category: B
Representation:
Counsel:
Applicant: Mr F Ferrante
Respondent: Mr J Algeri
Solicitors:
Applicant: Self-represented
Respondent: Department of Planning and Infrastructure
Case(s) referred to in decision(s):
Falc Pty Ltd v State Planning Commission (1991) 74 LGRA 68 at 79
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Neville Stephen Maley and Erica Noelle Maley ("the applicants") applied to the Tribunal for review of the decision of the Western Australian Planning Commission ("the respondent") refusing approval to subdivide Lot 211 (No 2A) Bouvard Drive, Bouvard.
The Tribunal determined that the application for review be dismissed and the decision of the respondent be affirmed.
Introduction
The applicants are the registered proprietors of Lot 211 (No 2A) Bouvard Drive, Bouvard more particularly described as an estate in fee simple in portion of Murray Location 1792 and being Lot 211 on Diagram 92743, comprised in Certificate of Title Vol 2095 Folio 75 ("the subject land"). Lot 211 is 2.1697 hectares in area and has dual road frontage to Bouvard Drive and White Hill Road.
The applicants made application to the respondent on 17 December 2002 for approval to subdivide the subject land to create two freehold title lots of 1.0016 hectares and 1.1681 hectares in area.
The respondent refused the application on 28 March 2003 for the following reasons:
"1.The proposed subdivision does not comply with the provisions of the City of Mandurah Town Planning Scheme No 3 relating to the subdivision of Rural‑Residential zoned land.
2.Approval to the subdivision would set an undesirable precedent for further subdivision of the surrounding lots."
The applicants requested the respondent to reconsider its decision in accordance with the provisions of s 24(5) of the Town Planning and Development Act 1928 (WA) ("the Act"). The reconsideration of the matter was held in abeyance to allow the preparation of a Subdivision Guide Plan and Technical Guidelines ("the Subdivision Guide Plan") by the applicants' town planning consultants and pending consideration of the matter by the City of Mandurah. The reconsideration of the matter was reactivated in April 2004 after the City of Mandurah resolved not to adopt the Subdivision Guide Plan. The respondent, in a letter dated 15 November 2004, advised the applicants that the Subdivision Guide Plan and related subdivision application were not consistent with the Coastal and Lakelands Planning Strategy and reiterated its previous decision to refuse the subdivision application.
The applicants, on 13 January 2005, made application under s 26(1)(a)(iii) of the Act to have the decision reviewed.
The proposal
The proposal entails subdividing the existing lot to create two freehold lots of approximately one hectare each, being a northern lot which has frontage to White Hills Road and Bouvard Drive, and a southern lot that has frontage to Bouvard Drive only.
Both lots are proposed to incorporate a 2000 square metre building envelope. The building envelope on the southern lot will encompass the existing residential dwelling and outbuilding structures.
Planning Framework
The respondent has prepared a number of planning documents for the purpose of exercising the power of the Commission under s 20 of the Act.
Statement of Planning Policy No 1 – State Planning Framework Policy ("SPP1") unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision‑making on land use, subdivision and development in Western Australia. The Policy has been formulated under s 5AA of the Act and, as such, the Tribunal is required to have "due regard" to the Policy in making decisions on planning matters: see s 61(1)(a) of the Act.
The State Planning Framework includes Statements of Planning Policy prepared by the Commission under s 5AA of the Act, as well as regional strategies, regional and sub-regional structure plans, strategic policies and operational policies prepared from time to time and endorsed by the Commission. The relevant policies listed in the State Planning Framework, relied on by the respondent to guide decision-making in this instance include:
.The Coastal and Lakeland Planning Strategy ("the Strategy"); and
.Policy No DC 3.4 – Subdivision of Rural Land (March 2002) ("Policy DC3.4").
The major purpose of the Strategy is to integrate relevant environmental recommendations and requirements into a cohesive land use planning policy. The subject land is situated within the Strategy area but lies outside the Lake Clifton Catchment Area. The structure plan which forms part of this strategy, identifies the subject land as "Rural Residential".
Clause 6.2.2 of the Strategy provides that for "Rural Residential" areas outside the Lake Clifton Catchment Area:
"a maximum overall site density of one lot per 3 ha, (and a minimum lot size of 2 ha), will apply with lot size variation which reflects, among other things environmental considerations, or strata titled clusters.
The proposed subdivision does not comply with the recommended lot sizes specified in the Strategy.
Policy DC3.4 sets out the principles that are to be used by the respondent in its determination of applications for the subdivision of rural land. Clause 3.1.1 of the policy states that there is a general presumption against the subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy. Furthermore, cl 4.1.1 states that the respondent shall only approve subdivision of rural land for rural residential and rural smallholdings where it is identified in an endorsed local planning strategy and zoned in a town planning scheme.
The subject land is zoned "Rural Residential" under the City of Mandurah Town Planning Scheme No 3 ("TPS 3"). Clause 4.7.1 of TPS 3 defines the purpose and intent of the zone as:
"This zone is intended to provide the opportunity for residential living in a semi-rural atmosphere with appropriate controls to minimise clearing and encourage re-planting of indigenous vegetation."
Clause 4.7.2 of the Scheme establishes that the relevant development and subdivision standards applicable in the "Rural Residential" zone are specified in Zoning Table 7 ("Table 7"). This clause also make reference to Appendix 4 of the Scheme which may incorporate special requirements pertaining to areas zoned "Rural Residential". There are no special requirements specified for this particular locality.
Table 7 set outs "Development Standards" applicable in the "Rural Residential" zone. Under the column headed "Minimum Lot Area", the specified requirement is:
"2 ha or 1 ha with scheme water (exception [for] those areas within the Lake Clifton catchment, where generally an average lot size of 5 ha with 2 ha minimum is required)."
There is also a further column headed "Other Requirements" which provides as follows:
"Any subdivision or development shall comply with the requirements of the Commission's Coastal & Lakelands Planning Strategy & the EPA Bulletin 864 (Final criteria for Environmental acceptability for Land Use proposals within the Catchment of Lake Clifton) requirements."
Subclause 4.7.3.3.1 of the Scheme provides that prior to the subdivision of land in the "Rural Residential" zone by the respondent, the Council shall require a Subdivisional Guide Plan as set out in cl 7.11, to be approved. Such a plan for the subject land was presented to the City of Mandurah in March 2004. The Council resolved not to adopt the Subdivision Guide Plan as "the proposed lot sizes do not comply with the provisions of the Coastal and Lakelands Planning Strategy".
Respondent's position
The respondent opposed the subdivision application on the basis that the approval of the proposed subdivision would undermine both the State and local government planning framework that has been established to provide the context for decision-making. The proposal is said to be contrary to:
a)the Strategy, as the proposed lot sizes do not comply with the minimum and average lot sizes specified in cl 6.2.2 of the Strategy;
b)cl 4.7.3.3.1 of TPS 3, as no Subdivision Guide Plan has been approved by the Council;
c)Table 7 of TPS 3, which requires any subdivision to comply with the Strategy; and
d)Policy DC 3.4, as the subdivision is not specifically provided for by a Subdivision Guide Plan under the provisions of TPS 3 and is not in accordance with an approved local planning strategy or local rural strategy.
The respondent also contended that approval of the subdivision would set an undesirable precedent for similar subdivisions in the locality and would encourage the lodgement of similar ad‑hoc subdivision applications.
Mr Haine, who is a planning officer of the Department for Planning and Infrastructure, was called by the respondent to give evidence in these proceedings. Mr Haine explained that the respondent's original decision of 28 March 2003 focused on the fact that there was no Subdivision Guide Plan approved, which was contrary to the provisions of TPS 3, whereas the reconsideration of the subdivision application took into account the fact that the City of Mandurah did not adopt the Subdivision Guide Plan and that the proposal conflicted with the lot size requirements specified in the Strategy.
Mr Haine brought to the attention of the Tribunal the fact that TPS 3 has recently been amended through the gazettal of Amendment 22 on 4 February 2005. This amendment modified the "Other Requirements" column of Table 7 to ensure that all subdivision or development complied with the requirements of the Strategy, not just land in the Lake Clifton catchment area as was previously stipulated.
Mr Haine in his evidence also considered the impact of the proposed subdivision on the surrounding area and, based on his findings of the wider locality (that is, 104 of the existing 125 rural-residential lots have an area of two hectares or greater), asserted that if the subdivision was approved, it would likely encourage other land owners in the area to lodge similar subdivision applications. He contended that the cumulative effect of considerable additional similar subdivisions in the locality may have adverse environmental impacts, such as increased nutrient levels in groundwater and the removal of substantial areas of vegetation. No evidence was produced to substantiate this assertion.
Applicants' position
Mr Ferrante in his opening statement asserted that the approach and decision taken by the respondent in dealing with the subdivision application was inadequate and relied heavily upon the interpretation of a statement contained in the Strategy without proper consideration of the broader objectives of the area as outlined in TPS 3. He also contended that the respondent failed to properly assess and balance the total merits of the proposal in reaching its decision.
Mr Ferrante maintained that the subdivision is consistent with the purpose and intent of the "Rural Residential" zone and in his witness statement claimed that the proposed subdivision complied with the subdivision standards specified in Table 7 of TPS 3. During the hearing, Mr Ferrante acknowledged that Table 7 had recently been amended by the gazettal of Amendment 22. However, he asserted that at the time of the respondent's decision Table 7 was quite clear in that the minimum lot size where water was available was one hectare, with a 75 metre effective frontage and the proposed subdivision was compliant with Table 7.
The applicants acknowledged that cl 4.7.3.3 of TPS 3 requires a Subdivision Guide Plan to be approved and that the Scheme requires that all subdivision and development is to accord with that approved plan. The applicants asserted that a Subdivision Guide Plan was prepared and that it was consistent with the requirements of the Scheme and that there were no technical deficiencies identified when assessed against the special requirements of the Scheme. Mr Haine, under cross-examination, confirmed that at the time of the original decision and the reconsideration of the matter by the respondent, the lot sizes proposed were consistent with Table 7 of TPS 3.
The applicants contended that the City of Mandurah failed to properly administer the provisions of TPS 3 and should have endorsed the Subdivision Guide Plan on the basis that the proposal met the purpose, intent, standards and special provisions pertaining to subdivision in the "Rural Residential" zone. The applicants further argued that notwithstanding that the Subdivision Guide Plan had not been adopted by either the City of Mandurah or the respondent, the respondent was not fettered by the provisions of TPS 3 and based on the planning merits of the application could have approved the proposed subdivision.
The applicants contended that the respondent elevated the status of the strategy to the highest level of importance, to the point whereby the content of the Strategy overrode the subdivision provisions and standards contained in TPS 3. Mr Ferrante argued that in this instance such weight was not appropriate given that the gazettal of TPS 3 postdated the Strategy thereby demonstrating an acceptance of the lot size requirements nominated in TPS 3. It was his opinion that the minimum and average lot sizes nominated in the Strategy were not intended to prevail above the standards contained in TPS 3. Mr Ferrante further argued that the existing lot sizes in the area are inconsistent with the provisions of the Strategy, in that the average lot size within this area is 2.07 hectares and not 3 hectares as specified in the Strategy. He asserted that the affect of the subdivision would result in a minor reduction to the average lot size to 2.053 hectares.
The applicants do not consider the proposed subdivision would set an undesirable precedent for further subdivision of surrounding lots as each subdivision proposal should be assessed on its merits on a case by case basis. The applicant agrees that a majority of lots in the surrounding area are two hectares in area. However, the applicants argued that only a limited number of these lots would have the potential for further subdivision in view of the Scheme's requirement to achieve a minimum effective frontage of 75 metres.
The principal issue
The principal issue in this proceeding is whether in light of the existing planning framework that provides the context for decision‑making, the proposed two lot subdivision can be justified on the planning merits of the case.
Both the Strategy and TPS 3, as they now stand, present a consistent approach to the subdivision of land in this area. The Strategy specifies that the maximum overall density for land outside the Lake Clifton catchment area is one lot per three hectares with a minimum lot size of two hectares. Amendment 22 to TPS 3, amongst other matters, modified the Scheme to ensure that the requirements of the Strategy were reflected in the "Other Requirements" column of Table 7.
Although Mr Ferrante was able to establish from Mr Haines, under cross-examination, that at the time of the original decisions the lot sizes were consistent with Table 7, this does not further the applicants' case as the review of a decision by the Tribunal is by way of a fresh consideration of the matter in issue ("a hearing de novo"). It is not confined to the matters that were before the decision-maker, but may involve the consideration of new material whether or not it existed at the time of the original decision was made. The purpose of the review "is to produce the correct and preferable decision at the time of the decision upon review": s 27(2) of the State Administrative Tribunal Act 2004 (WA).
Mr Ferrante conceded that by virtue of the changes made by the gazettal of Amendment 22 the proposed subdivision was now non compliant with subdivision standards specified in Table 7 of TPS 3.
The Tribunal considers the gazettal of Amendment 22 to TPS 3 to be a significant step in the consolidation and implementation of the principles encompassed in a regional strategy through the utilisation of a statutory instrument. While s 20(5) of the Act provides that the respondent (and, by extension, this Tribunal) is not fettered by the provisions of a town planning scheme, that is not to imply that they should not be taken into account. Indeed, the stronger implication of that section is that the provisions of a town planning scheme will, in fact, be taken into account but in doing so they should not necessarily be regarded as being determinative. As Ipp J in Falc Pty Ltd and Others v State Planning Commission (1991) 74 LGRA 68 at 79 found, "… it is the Tribunal's statutory duty to apply sound town planning principles to the substantial merits of each particular case." Although his Honour was referring to the Tribunal's predecessor, the observation is equally applicable to this Tribunal.
Mr Ferrante, when questioned by the Tribunal as to the planning merits of the case, responded as follows:
"… if we examine some of the site constraints and site specific issues relating to the property firstly there must be the ability to connect to reticulated water which is the case. The soil types need to be able to accommodate and have the capability of accommodating on site effluent disposal. An assessment of the soil types was undertaken which confirmed that the soil types were of a suitable nature to accommodate on site effluent disposal in a manner which complied with the government Health Department requirements and also the requirement listed in the Scheme in terms separation from high … groundwater. The other technical merits related to the establishment of a building envelop and technical guidelines to control the use and development of the land through the subdivision process including restrictions on clearing, fencing and the types of land use activities which could or could not be undertaken on the proposed lot and that an assessment of those merits as is required under the scheme met all of those tests and …, there were no … deficiencies or problems identified either through the City of Mandurah or via the respondent which would suggest that the proposal did not have any planning merit apart from not complying with the lot size recommendations of the Coastal and Lakeland Planning Strategy."
In light of the existing planning framework, the proposed subdivision represents a significant departure from the site density and lot size objectives for this locality. The Tribunal in considering the particular planning merits of this case is not convinced that there is sufficient justification for such a departure. Although the Subdivision Guide Plan indicates that the subdivision of this particular lot may not have any adverse environmental impacts on the surrounding locality, there is an obvious need to consider the cumulative effects of further possible subdivision of land in the locality and the impact of intensification on the environment. Except for the inclusion of a report prepared by Landform Research, Land Capability, Proposed Subdivision, Lot 211 Bouvard Drive Bouvard, which was included as an attachment to the applicants' Application for Review, neither party led evidence as to the effect of further intensification on this locality. In the absence of such argument, the Tribunal is not prepared to support an application for subdivision that departs so significantly from the planning intent for the area. Therefore on the evidence, the Tribunal is of the view that the proposed subdivision of the subject land is not consistent with the orderly and proper planning of the area and does not accord with sound planning principles that have been formulated for the locality.
The orders of the Tribunal are:
1.The application for review is dismissed; and
2.The decision of the respondent is affirmed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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