MAMMOTH NOMINEES PTY LTD and CITY OF WANNEROO
[2007] WASAT 236
•4 SEPTEMBER 2007
MAMMOTH NOMINEES PTY LTD and CITY OF WANNEROO [2007] WASAT 236
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 236 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:162/2007 | 4 SEPTEMBER 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 4/09/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Amendment No 16 to the Structure Plan is acceptable subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | MAMMOTH NOMINEES PTY LTD CITY OF WANNEROO |
Catchwords: | Town planning – Amendment of Structure Plan – Road realignment – Proper and orderly planning – Impact on amenity and safety in residential street – Legitimate expectations of residents – Costs |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 3.14.1, cl 3.14.2(c), cl 9.6.1, cl 9.6.5 Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 31, s 87(2), s 87(4)(b) |
Case References: | J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 3 April 2007 under cl 9.6.1 of the City of Wanneroo District Planning Scheme No. 2 to not support Amendment No.16 to the East Wanneroo Cell 4 Agreed Structure Plan in relation to Lot 25 Kemp Street, Pearsall is set aside and a decision is substituted that Amendment No. 16 is satisfactory subject to:,(a) Further amending the Agreed Structure Plan to:,(i) Delete the Buffer Precinct from the Zoning Map of the Agreed Structure Plan and to replace it with a Residential Precinct as relevant;,(ii) Delete the Buffer Precinct provisions from the Statutory Section of the Agreed Structure Plan,,(iii) Zoning the remaining portion of the Centre zone to Commercial; and,(iv) Include the following: "When Lot 25 Kemp Street, Pearsall is developed, or the extension of Willespie Drive to Brooklyn Avenue is carried out, whichever occurs first, the intersection of Willespie Drive, Brooklyn Avenue and Boboli Way must be treated as shown in the Detailed Area Plan for Lots 25 and 26 Kemp Street, Pearsall dated 20 June 2007 - Plan No.2982-4-001B Revision B.",(b) The submission of a suitably modified Detailed Area Plan for endorsement which provides for an improved and clear development outcome.,3. Within 7 days the respondent must submit three copies of Amendment No. 16 and these orders to the Western Australian Planning Commission for its adoption and certification of Amendment No. 16.,4. Within 7 days of receipt of the written version of the Tribunal's reasons for this decision the respondent must submit the Tribunal's reasons to the Western Australian Planning Commission.,5. Within 7 days of adoption and certification of Amendment No. 16 by the Western Australian Planning Commission the respondent must adopt, sign and seal Amendment No. 16 pursuant to cl 9.6.5 of the City of Wanneroo District Planning Scheme No. 2.,6. Each party is to pay its own costs of these proceedings. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MAMMOTH NOMINEES PTY LTD and CITY OF WANNEROO [2007] WASAT 236 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Town planning – Amendment of Structure Plan – Road realignment – Proper and orderly planning – Impact on amenity and safety in residential street – Legitimate expectations of residents – Costs
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 3.14.1, cl 3.14.2(c), cl 9.6.1, cl 9.6.5
Planning and Development Act 2005 (WA)
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 31, s 87(2), s 87(4)(b)
Result:
Amendment No 16 to the Structure Plan is acceptable subject to conditions
Category: B
Representation:
Counsel:
Applicant : Ms BA Moharich
Respondent : Mr CA Slarke
Solicitors:
Applicant : Lavan Legal
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
(Page 3)
Summary of Tribunal's decision
1 This case concerned an application to amend a structure plan by realigning a road and increasing the area designated for residential purposes. The effect of the amendment would be to increase traffic volume in a residential street. The issue was whether the amendment would be consistent with, or contrary to, orderly and proper planning, particularly having regard to the likely impact of additional traffic on residential amenity and safety, and the legitimate expectations of residents.
2 Following the hearing, the Tribunal gave an oral decision in which it determined that the amendment is acceptable subject to agreed conditions.
3 The Tribunal found that the amendment facilitates the efficient use of urban-zoned land by providing adequate area for neighbourhood and community purposes, while at the same time maximising the area available for residential purposes. The Tribunal found that the road realignment is likely to improve pedestrian and vehicular safety and minimise traffic congestion associated with a future primary school. Finally, the Tribunal found that the increase in traffic volume and risk in the residential street in question would be imperceptible and was not contrary to the reasonable expectations of residents. The local planning scheme contemplated change in the structure planning area over time.
4 Finally, the Tribunal rejected an application by the applicant for the Council to pay its costs of the proceedings. The Tribunal considered that its general approach in planning cases, under which each party pays its own costs, should not be departed from in the circumstances of this case.
5 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows:
Introduction
6 These proceedings involve an application for review under the City of Wanneroo District Planning Scheme No 2 (DPS 2) of the City of Wanneroo's decision to refuse Amendment No 16 (Amendment 16) to the East Wanneroo Cell 4 Agreed Structure Plan (Structure Plan) in relation to Lot 25 Kemp Street, Pearsall (the site).
7 The Structure Plan was initially adopted by the City of Wanneroo (Council or City) on 28 September 1999 and became effective upon
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- adoption by the Western Australian Planning Commission on 24 June 2002. Since that time the Structure Plan has been amended on 12 occasions.
8 The site has an area of 2.13 hectares and is zoned "Urban Development" under DPS 2. The Structure Plan shows 1.83 hectares of the site, or approximately 86% of its area, as "Neighbourhood Centre" and "Community Purpose". This area has an irregular shape with a curvilinear road alignment to Willespie Drive, which enters the site approximately midway on its western side boundary and then curves to the south to intersect with Kemp Street. The south-western portion of the site is shown on the approved Structure Plan as "Residential", with a residential density coding of R40.
9 Amendment 16 proposed the following:
1) The realignment of Willespie Drive to create a road which traverses the site midway from west to east, essentially bisecting the site into northern and southern halves, and the creation of a four-way intersection on the eastern boundary of the site with Willespie Drive entering from the west, Brooklyn Avenue entering from the north and south, and Boboli Way entering from the east, with access to Kemp Street via Brooklyn Avenue to the south once this section of road is constructed.
2) The identification of the area to the south of Willespie Drive as "Residential", with a residential density coding of R40, which would enable the creation of 19 residential lots.
3) The identification of the area to the north of Willespie Drive as "Neighbourhood Centre" of approximately 7800 square metres, and "Community Purpose" which has a total area of approximately 5000 square metres including a portion on the adjoining property to the west.
10 Amendment 16 was advertised for public comment for 28 days and resulted in 13 individual submissions and a petition with 57 signatures opposing the application. The 13 submissions included eight letters of objection from residents in Boboli Way, three letters of objection from residents in other streets, and two submissions from statutory authorities
(Page 5)
- which were not opposed to the proposal. The petition included residents from 19 of the 38 residential properties in Boboli Way.
11 Amendment 16 was recommended for approval by the City's professional staff, but was refused by the Council on 3 April 2007 for the following reason:
"Council rejected the recommendation on the basis that it was concerned that the changes to the road configuration in particular would adversely affect the amenity of the residents. Council does not have any objection to the issue of coding and in general is concerned about the impact on traffic movements. It would be difficult if not impossible to protect the interests of residents in road safety and in terms of amenity if the recommendation went through."
12 Following the commencement of these proceedings, the City was invited by the Tribunal to reconsider its determination under s 31 of the State Administration Tribunal Act 2004 (WA) (SAT Act). The City's professional staff again recommended approval of the application; however, the Council resolved on 17 July 2007 to again not support Amendment 16. It did so for the following three reasons:
"1. It is contrary to the Agreed Structure Plan which was the basis for many residents purchasing their properties within the area;
2. Landowners expectations were that Boboli Way was a local road and the current proposal changes its function to that of a local distributor road;
3. An amendment of this sort seeks to make significant changes to the road network contrary to proper and orderly planning."
13 The Council also gave the following reason for its motion not to support the amendment:
"This application has been before Council before and was unanimously rejected on that occasion. Council understands that the applicant was not happy with this rejection and have come back to be unanimously rejected again. The essence of the rejection is based on the fact that it adversely impacts on the amenity of the residents, that it is unsafe and whilst not a
(Page 6)
- planning condition it is a consideration of Council that it is wholly unfair on the residents."
Issue
14 The sole issue for determination in this review is whether approval of Amendment 16 would be consistent with, or contrary to, orderly and proper planning, particularly having regard to the likely impact of additional traffic on residential amenity and safety, and the legitimate expectations of residents in Boboli Way.
Is approval of Amendment 16 consistent with, or contrary to, orderly and proper planning?
15 The Tribunal considers that approval of Amendment 16 is consistent with, and is not contrary to, orderly and proper planning for the following three reasons.
16 First, as Mr Matthew Zuvela, a town planner who gave evidence on behalf of the applicant, said, the amendment facilitates the efficient use of urban-zoned land by providing adequate area for neighbourhood and community purposes, while at the same time maximising the available area for residential purposes.
17 As noted earlier, the amendment facilitates the creation of 19 residential lots. In contrast, the current Structure Plan identifies only a small area in the south-west part of the site for residential purposes. The effect of the amendment would be to facilitate the creation of 15 or 16 additional residential lots in an area which will be an established residential area, thereby mitigating urban sprawl.
18 Second, as Mr Zuvela also said, the elimination of a curvilinear road and the introduction of a straight road adjacent to the local primary school site is likely to improve pedestrian and vehicular safety and minimise traffic congestion associated with school drop-off and pick-up. The Department of Education and Training advised the City on 23 November 2006 that it "[e]xpects the traffic flow around the school site to improve with the proposed road alignment".
19 Moreover, as Mr Fernando Ferrante, who is also a town planner who gave evidence on behalf of the applicant, pointed out, residents of Boboli Way to the east "will now have a more direct, and safer route to the primary school site and community purpose site".
(Page 7)
20 Third, the Tribunal does not consider that the amendment is contrary to orderly and proper planning having regard to the likely impact of additional traffic on residential amenity and safety in Boboli Way, and on the legitimate expectations of residents in that street.
21 Mr Mark Wilson and Mr Craig Walsh, who both bought properties in Boboli Way "off the plan" about four years ago and then built their family homes, gave evidence that they purchased their properties on the understanding that Boboli Way would remain "a quiet residential street with local traffic only". Mr Wilson, in particular, spent a great deal of time researching the plans for the area. This included visiting the City's offices and obtaining all information available at that time on the Structure Plan.
22 Mr Wilson's and Mr Walsh's main concern about Amendment 16 is the impact of additional traffic on Boboli Way. They think that some traffic is likely to proceed east along Boboli Way rather than turning right from the site onto Brooklyn Avenue in order to gain access to Kemp Street. As a result of the proposed realignment, it would be possible to drive from Wanneroo Road to the west of the site to within 20 metres of Lenore Road which provides access to Perth to the east of the site, using, in part, Boboli Way, and without using a major road such as Kemp Street.
23 They fear that "through traffic", as opposed to local traffic, is likely to travel at a higher speed than is appropriate in a quiet residential street. Both Mr Wilson and Mr Walsh expressed the view that even if the likely amount of traffic in Boboli Way is within the design capacity of the road, that fact does not address their concern. Mr Wilson said that:
"It is not a question of whether the street can take the traffic, but rather the question of what the residents expected of the road when they purchased their homes."
24 Councillors Glenys Monks and Dot Newton, who are both local ward councillors, gave evidence in which they support Mr Wilson's and Mr Walsh's concern. Councillor Monks, in particular, considers that:
"Landowners' expectations were that Boboli Way was a local road and the current proposal will change this road function to that of a local distributor road, in the sense that it will carry 'through traffic' and not just local traffic."
(Page 8)
25 However, the applicant presented evidence from Mr Darren Levey, a traffic engineer, who undertook a detailed traffic assessment of the likely traffic impact of Amendment 16. That analysis was assessed by the City's traffic and transport section and found to be in order. The City did not present any traffic engineering evidence to the Tribunal in this review.
26 Mr Levey's analysis shows that the effect of Amendment 16 would be to increase maximum traffic flow in Boboli Way from approximately 220 vehicle trips per day under the approved Structure Plan once fully implemented, to a maximum of 360 vehicle trips per day under the proposed amendment. Mr Levey emphasised that an increase of 140 vehicle trips per day is the worst-case scenario, and in his professional opinion and experience the increase in traffic in Boboli Way as a result of Amendment 16 is likely to be less.
27 While an increase of 140 vehicle trips per day in Boboli Way translates to a statistically significant 64% increase in traffic volume, it involves only an additional one vehicle every four minutes in the peak hour. Mr Levey noted that Boboli Way is classified as an "Access Street D" under Liveable Neighbourhoods which is relevantly the lowest road classification and which has an indicative maximum volume of 1000 vehicles per day. He said that this volume already takes into account the desired level of amenity and safety for this type of road. A road having the dimensions of Boboli Way can accommodate 7000 to 10 000 vehicles per day. The restriction to 1000 vehicles per day under Liveable Neighbourhoods, therefore, reflects a superior amenity expectation than would be consistent with the physical characteristics of the street.
28 Mr Levey pointed out that, with the amendment, the level of traffic in Boboli Way would be a maximum of 36% and is likely to be less than the maximum acceptable volume. The level of amenity and safety in the street is therefore likely to be significantly better than the level contemplated in Liveable Neighbourhoods as the minimum level of amenity and safety in such a street.
29 Mr Levey also said that the road function of Boboli Way would not change from a local road to a local distributor road as a result of Amendment 16 as contemplated by Councillor Monks. While categorisation of a road as a local distributor road is a product of both traffic volume and character, Mr Levey said that a local distributor road will require at least 2000 to 3000 vehicles per day and may carry as much as 7000 vehicles per day.
(Page 9)
30 It is clear from Mr Levey's evidence that Boboli Way would remain not only a local road but, in fact, a local road at the lowest category of local roads if the proposed amendment were approved.
31 Mr Levey also said that "through traffic" from outside the Pearsall locality is unlikely to prefer Boboli Way over Kemp Street because of the differences in the size and character of these streets, and the differences in the maximum and likely effective maximum speed limits in these streets.
32 Mr Levey considers that Boboli Way has been designed and detailed to encourage speeds in the order of 30 to 40 kilometres per hour rather than the actual speed limit of 50 kilometres per hour. He considers that cars are unlikely to travel down the street at the maximum permitted 50 kilometres an hour, much less 60 kilometres per hour as feared by some residents.
33 In contrast, the speed limit in Kemp Street is 80 kilometres per hour, and its physical characteristics, namely, two lanes and a larger footpath, are such that vehicles travelling through the Pearsall locality from outside are unlikely to prefer to use Boboli Way over Kemp Street.
34 While the additional maximum 140 vehicles per day that are likely to be generated in Boboli Way by the proposed amendment could be described as "through traffic" in the sense that they are not from the immediate local area, the Tribunal considers, on the basis of Mr Levey's evidence, that this additional traffic is not likely to travel at speeds in excess of the 30 to 40 kilometres per hour contemplated by Mr Levey, given the physical characteristics and design of the street.
35 The Tribunal accepts Mr Levey's evidence over Councillors Monks and Newton and Mr Wilson and Mr Walsh to the extent that Mr Levey disagrees with the councillors and residents, given Mr Levey's specialist qualifications and experience. Although certain of the assumptions on which Mr Levey undertook his analysis were questioned by counsel for the City, the Tribunal is satisfied that Mr Levey adopted a generally conservative approach within his professional expertise. The Tribunal notes again that the City failed to call any expert evidence in relation to traffic, and that its own experts considered that Mr Levey's analysis was in order.
36 Mr Levey also noted that the amount of traffic in Boboli Way can be further minimised through the design of the road pavement and the overall traffic environment.
(Page 10)
37 The City has proposed that in the event that the application is approved, a condition should be imposed on the approval requiring the treatment of the four-way intersection at the eastern boundary of the site as shown in a detailed area plan submitted on behalf of the applicant by Koltasz Smith, a town planning and urban design consultancy. The detailed area plan shows paving and planting treatment at the western end of Boboli Way to discourage through traffic. The applicant accepts this condition in the review.
38 In light of the evidence outlined above, even without the modification of road pavement and environment, the Tribunal accepts Mr Levey's evidence that:
"… the estimated increase in traffic volumes and the subsequent mathematical increase in the risk of an accident will be imperceptible …"
39 However, as the applicant accepts the condition and indeed proposed essentially the same treatment, the Tribunal considers that the condition proposed by the City should be imposed. The net effect of the condition would be to reduce an imperceptible increase in traffic volume and safety risk in Boboli Way to an even lesser level.
40 In consequence of these findings, the Tribunal considers that the impact of Amendment 16 on residential amenity and safety in Boboli Way is acceptable and is consistent with orderly and proper planning.
41 In terms of legitimate expectations, the Tribunal considers that the additional traffic is not inconsistent with the legitimate expectations of residents in the locality in general and in Boboli Way in particular. The reasonable expectations of residents are that Boboli Way should remain a local road, and particularly the lowest category of local road, namely, an "Access Street D", which it will remain following the amendment.
42 Furthermore, the Structure Plan has been amended 12 times since 2002. This level of change is consistent with the purpose of the "Urban Development" zone, which as stated in cl 3.14.1 of DPS 2 is:
"… to provide for the orderly planning and development of larger areas of land in an integrated manner within a regional context whilst retaining flexibility to review planning with changing circumstances."
(Page 11)
43 While the road pattern in question in these proceedings has not previously changed, the third specific objective of the zone, as stated in cl 3.14.2(c), is to:
"… enable planning to be flexible and responsive to changing circumstances throughout the developmental stages of the area."
44 This objective clearly contemplates that change can occur in the structure planning of the area, including in relation to road pattern. It cannot, therefore, be a reasonable expectation that no change will occur in the road Structure Plan, particularly where the change is consistent with, and not contrary to, orderly and proper planning of the locality.
Costs
45 The applicant seeks an order that the City pay its professional costs of the proceedings and relies on the decision of the Tribunal in J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282. That was a case in which an applicant had applied to the Shire for approval to upgrade an existing landfill facility and to change its designation.
46 As the Tribunal recognised in its decision at [71], the starting proposition in the Tribunal is that parties bear their own costs in a proceeding. As the Tribunal also recognised at [71], s 87(2) of the SAT Act, however, clearly confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act.
47 The Tribunal's established practice in exercising its discretion as to costs under s 87(2) of the SAT Act is that ordinarily each party should bear its own costs in planning review proceedings. As the Tribunal also recognised at [72] of its decision in J & P Metals Pty Ltd and Shire of Dardanup, s 87(4)(b) of the SAT Act relevantly requires the Tribunal to consider "whether the party (being the decision-maker) genuinely attempted to make a decision on its merits" in exercising its discretion as to costs under s 87(2).
48 On the facts of the case in J & P Metals Pty Ltd and Shire of Dardanup, the Tribunal considered that an award of costs was appropriate. The Tribunal found, in particular, at [73] that the Shire did not attempt to consider the substantial merits of the application. It also found at [74] that it could not be satisfied that the exercise of discretion by the Shire was undertaken in accordance with sound planning principles or
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- in good faith. At [75] the Tribunal found that the respondent failed to genuinely attempt to make the decision on its merits.
49 It is clear from [2] and elsewhere in the Tribunal's decision in J & P Metals Pty Ltd and Shire of Dardanup that the Shire in that case failed to identify any environmental planning issues in respect of the matter that justified its decision. The Shire justified its decision purely on the basis of community opposition to the proposal.
50 The Tribunal considers that J & P Metals Pty Ltd and Shire of Dardanup is clearly distinguishable from the facts of this case. The City's reasons for its decisions have already been set out. There clearly was a planning basis for the City's refusal to accept Amendment 16, that planning basis being amenity concerns and traffic safety concerns for residents in Boboli Way. Although the Tribunal does not consider that the correct and preferable decision in this case accords with the City's decision, it accepts that there was a genuine merit assessment of the application by the City.
51 It is true, as Ms Moharich points out, that the City emphasised, particularly in its second decision, that the amendment is "wholly unfair on the residents" while acknowledging that this is not a planning matter, but it is clear that this was not the sole reason for its decision. The Tribunal therefore considers that the Tribunal's general approach to the exercise of its discretion should not be departed from in the circumstances of this case, and that each party should pay its own costs.
Conclusion and orders
52 The Tribunal finds that Amendment 16 is consistent with, and is not contrary to, orderly and proper planning. There is likely to be an imperceptible increase in traffic volume in Boboli Way, but it is not of a sufficient volume or nature to change the character of Boboli Way from a local road. The Tribunal therefore considers that the application for review should be allowed and the decision of the City not to support Amendment 16 should be set aside.
53 The Tribunal makes the following orders:
1. The application for review is allowed.
- 2. The decision of the respondent made on 3 April 2007 under cl 9.6.1 of the City of Wanneroo District Planning
- Scheme No 2 to not support Amendment No 16 to the East Wanneroo Cell 4 Agreed Structure Plan in relation to Lot 25 Kemp Street, Pearsall, is set aside, and a decision is substituted that Amendment No 16 is satisfactory subject to:
- (a) further amending the agreed Structure Plan to:
(i) delete the buffer precinct from the zoning map of the Agreed Structure Plan and replace it with a residential precinct as relevant;
(ii) delete the buffer precinct provisions from the statutory section of the agreed Structure Plan;
(iii) zone the remaining portion of the centre zone to commercial; and
(iv) include the following:
"When Lot 25 Kemp Street, Pearsall, is developed or the extension of Willespie Drive to Brooklyn Avenue is carried out, whichever occurs first, the intersection of Willespie Drive, Brooklyn Avenue and Boboli Way must be treated as shown in the detailed area plan for Lots 25 and 26 Kemp Street, Pearsall, dated 20 June 2007 - plan number 2982-4-001B revision B."
- (b) the submission of a suitably modified detailed area plan for endorsement which provides for an improved and clear development outcome.
- 3. Within seven days the respondent must submit three copies of Amendment No 16 and these orders to the Western Australian Planning Commission for its adoption and certification of Amendment No 16.
4. Within seven days of receipt of the written version of the Tribunal's reasons for this decision, the respondent must
- submit the Tribunal's reasons for decision to the Western Australian Planning Commission.
- 5. Within seven days of adoption and certification of Amendment No 16 by the Western Australian Planning Commission, the respondent must adopt, sign and seal Amendment No 16 pursuant to cl 9.6.5 of the City of Wanneroo District Planning Scheme No 2.
6. Each party is to pay its own costs of these proceedings.
I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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