Mews and Western Australian Planning Commission - [2012] WASAT 35

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MEWS and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 35

MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)

HEARD: 16 DECEMBER 2011

DELIVERED : 23 FEBRUARY 2012

FILE NO/S: DR 376 of 2011

BETWEEN: GEOFFREY MEWS
YVONNE MEWS
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Whether proposed subdivision is consistent with character of neighbourhood Undesirable precedent Hardship Residential Planning Codes R10 code Amenity Development does not include subdivision Community consultation process Streetscape Commission to have regard to local planning scheme Subdivision inconsistent with sound planning principles Sustainable use and development of land

Legislation:

Planning and Development Act 2005 (WA), s 135, s 138, s 138(2), s 138(3)
City of Nedlands Town Planning Scheme No 2, cl 5.2.3, cl 5.3.1(a)

Result:

Application for review dismissed
Decision of respondent to refuse subdivision affirmed

Category: B

Representation:

Counsel:

Applicants: Mr A Stewart
Respondent: Mr S Allerding

Solicitors:

Applicants: Greg Rowe & Associates (Town Planners)
Respondent: Allerding & Associates

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

Aspen Pty Ltd v State Planning Commission (unreported; WATPAT, Appeal No 13 of 1988, 21 October 1988)
Goldin v Minister for Transport (2002) 121 LGERA 101
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Lawrence and Western Australian Planning Commission [2008] WASAT 269
Marshall v Western Australian Planning Commission (1995) 15 SR(WA) 170
MRF Civil Pty Ltd and Western Australian Planning Commission [2009] WASAT 181
Nicholls v Western Australian Planning Commission (2005) 149 LGERA 117
Tipping and Western Australian Planning Commission [2010] WASAT 149

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of a refusal by the Western Australian Planning Commission to grant approval to the subdivision of a 1,337 square metre residential lot into two lots, one of 704 square metres and the other of 633 square metres at No 38 (Lot 136) Brockman Avenue, Dalkeith.
In undertaking this review the Tribunal examined the overall planning framework applicable to this matter and a number of issues in dispute. These issues included an assessment of the proposal against the relevant provisions of both State and local planning policy and legislation, and whether the proposed subdivision was consistent with the existing character of the neighbourhood. The issues of hardship and precedent were also examined.
The Tribunal found that an approval to subdivide would be likely to compromise the landscape character of the neighbourhood, and would set an undesirable precedent.
The application for review was dismissed and the decision of the respondent to refuse the subdivision was affirmed.
The Tribunal's reasons taken from the transcript, and edited in minor respects, are as follows.

Introduction

This matter is an application for review of a decision of the Western Australian Planning Commission (WAPC or Commission) to refuse to approve a subdivision application submitted by Dr Geoffrey Mews and Dr Yvonne Mews (applicants).
Mr A Stewart appeared as counsel for the applicants and Mr S Allerding appeared as counsel for the respondent. The Tribunal had the benefit of expert evidence from two planners: Mr G Rowe for the applicants, and Ms L O'Donohue for the respondent. One of the applicants provided a witness statement to the Tribunal.
The Tribunal also had the benefit of a viewing of the site and the locality in the company of the parties.
The most relevant facts are summarised below.
The application proposes to subdivide No 38 (Lot 136) Brockman Avenue, Dalkeith, on the corner of Murray Street, from an existing lot of 1,337 square metres into two freehold lots, with one at 704 square metres and the other at 633 square metres. The larger lot will remain a corner lot and will contain an existing two storey dwelling. The smaller lot will be the vacant lot facing Murray Street but with a secondary frontage to Bee Eater Lane.

Planning framework

The following relevant planning framework was considered by the Tribunal in reaching a determination for this review:
•Planning and Development Act 2005 (WA) (PD Act), with particular reference to s 138;
•WAPC Statement of Planning Policy No 1: State Planning Framework Policy (Variation No 2) (SPP 1);
•WAPC Statement of Planning Policy No 3: Urban Growth and Settlement (SPP 3);
•WAPC State Planning Policy 3.1 Residential Design Codes (SPP 3.1 Codes);
•State Planning Strategy 1997 (Strategy);
•Directions 2031;
•Draft Central Metropolitan Perth Subregional Strategy 2010 (Subregional Strategy);
•WAPC Liveable Neighbourhoods (Liveable Neighbourhoods);
•WAPC Policy No DC 2.2 Residential Subdivision (2003) (DC 2.2);
•WAPC Planning Bulletin No 76 (January 2006); Planning Bulletin No 78 (May 2006); and Planning Bulletin No 103/2010;
•City of Nedlands Town Planning Scheme No 2 (TPS 2 or Scheme) where the site is zoned Residential and has a density coding of R10; and
•City of Nedlands Housing Diversity Study (2006) (Housing Diversity Study).

Issues

The parties agreed there were seven issues which the Tribunal will deal with in the following order:
1)The assessment of the proposal against the provisions of TPS 2.
2)The assessment of the proposal against the State planning framework.
3)The relevance of the Housing Diversity Study.
4)Whether the proposed subdivision is consistent with the character of the neighbourhood.
5)Precedence.
6)The appropriateness of utilising s 138 of the PD Act to approve the application.
7)Hardship.

Issue 1: the assessment of the proposal against the provisions of TPS 2

Clause 5.2.3 of TPS 2 provides that:
Unless otherwise provided for in the Scheme[,] the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes.
Under the Codes, development for R10 requires a minimum site area of 875 square metres and an average site area of 1,000 square metres. The respondent argues that the proposal will result in minimum site area variations of 17% and 27%, and an average site area variation of 33%.
The respondent also argued that the existing development on Lot 1 would result in a rear setback of 2 metres in lieu of the required 6 metres, and open space provisions of 54% in lieu of the required 60%. These considerations, together with other Scheme requirements relating to amenity, will be dealt with in the issue relating to neighbourhood character.
Mr Rowe strongly argued that TPS 2 has little relevance because it is the oldest scheme in the metropolitan area (27 years), has failed to respond to contemporary planning needs and does not reflect current planning requirements as described in the various State planning policies and strategies.
Nevertheless, he noted that the proposed subdivision creates two lots, each for a single residence, which is consistent with the requirements of cl 5.3.1(a) of TPS 2 which states:
[W]here an area is designated with an R. Code of R.10 or R12.5, no [residential] development other than a single dwelling house or a [sic] ancillary accommodation unit is permitted[.]
It is common ground between the parties that the proposal is not in conflict with TPS 2 in view of the decision of this Tribunal in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark) where it was found that the Scheme relates to development of land and that development does not include subdivision. Therefore, a subdivision that does not conform with the minimum site area requirements of the Codes incorporated into the Scheme does not conflict with the provision of the Scheme that relates to minimum site areas for development.
This matter was further considered in Lawrence and Western Australian Planning Commission [2008] WASAT 269 (Lawrence) in an application for a two lot subdivision in an R10 coded area in Waratah Avenue, Dalkeith where, after referring to Landpark and the lack of conflict in the Scheme at [21], the Tribunal observed in [22] and [23]:
To use the words of Senior Member Parry [as he was then] 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.
Therefore, the Tribunal finds, subject to later findings dealing with the impact of the proposal on the character of the neighbourhood, that there is no conflict with the Scheme for the purposes of s 138(2) of the PD Act. However, consistent with the findings in Lawrence, the WAPC and the Tribunal on review must give due regard to TPS 2 and the expectation that generally development of a single house in an R10 coded area will take place on land with an average site area of 1,000 square metres and a minimum site area of 875 square metres. The WAPC and the Tribunal will not therefore generally approve an allotment of lesser size.
This finding is not necessarily fatal for the applicants because a substantial component of their case rests on arguments that limited weight should be given to TPS 2.

Issue 2: the assessment of the proposal against the State planning framework

Mr Rowe presented very thorough and detailed arguments that State government planning policies and legislation should be given significantly greater weight than TPS 2 in assessing the application. Part of that argument related to the content of the State policies and partly related to the outdated nature of TPS 2. Appropriately, Mr Rowe started with a detailed analysis of SPP 1. The significance of this policy was summarised in the applicants' closing arguments as follows:
… SPP1 is the Respondent's 'overarching Statement of Planning Policy' … that 'unites existing State and regional policies, strategies and guidelines within a central framework which provides a context for decisionmaking …'. Section 3.1(a) of SPP1 requires the Respondent, and therefore the Tribunal, to have 'due regard to the provisions' of the framework when 'making decisions on planning matters'. It was agreed by the planning experts at the Hearing that the subdivision of the Review site is a 'planning matter' and therefore due regard must be given to the 'provisions' of SPP1 in the determination of this Review. It is important to emphasise that in accordance with Clause 4.1 of SPP1, the term 'provisions' is a reference to the various policies, strategies and guidelines that are contained in Part B of SPP1. In the event of any conflict between those provisions, the Tribunal is required to resolve any conflict in accordance with the guidelines provided by Clause 5.1 of SPP1.
Mr Rowe's analysis of the State planning framework may be summarised into two main argument streams: one relating to weight, that is, which elements of the planning framework take priority over other elements; and his main argument stream relating to the State planning framework's emphasis on the sustainable use and development of land, as stated in closing arguments:
In our view what this translates to in planning terms is a widely accepted planning principle that in accommodating the future population growth in Perth, greater emphasis must be placed on housing diversity and infill housing within established urban areas and all [l]ocal [a]uthorities have a role to play, regardless of location or socioeconomic structure.
Mr Rowe provided maps and tables detailing amenities, services and facilities within 1.5 kilometres of the review site including one map showing 10 bus stops within 400 metres of the site on two bus routes that provide access to the Claremont town centre and central Perth. He argued that the site is well located for urban infill and is consistent with policy measure cl 5.3 of SPP 3, where the criteria for urban growth in Perth is described as 'giving priority to infill development in established urban areas …'. Mr Rowe observed that it is clear that SPP 3 targets urban consolidation in a cohesive manner across existing urban localities:
… It is my view that the proposed subdivision would contribute to the efficient use of underutilised land, given the subdivision seeks to change an unused tennis court into a residential allotment, and is therefore consistent with the objectives and policy measures of SPP 3.
In referring to his review of the State Planning Strategy and associated discussion papers Mr Rowe concluded that the proposed subdivision was consistent with the objectives of the Strategy because it will result in increased utilisation of local facilities and contribute to more efficient use of transport and local commercial and employment facilities.
Mr Rowe's expert opinions on Directions 2031 and the Subregional Strategy are particularly relevant to this review. Mr Rowe also argues that TPS 2 is outdated and lacks relevance to contemporary planning needs. He describes the relevant general provisions of these documents at para 7.45 para 7.46 of his witness statement as follows:
Directions 2031 (D2031) provides strategic directives for the future growth of Metropolitan Perth to the year 2031. An important purpose of this strategic planning document, is to place a much stronger emphasis upon urban consolidation than previously undertaken or considered for metropolitan Perth. Directions 2031 provides a target of 47% of all new dwellings to be provided within existing urban areas (i.e. through various forms of urban consolidation).
D2031 provides overall growth directives. Several substrategies, including the draft Central Metropolitan Perth Subregional Strategy (SubRegional Strategy) identify further the locations within each municipality where infill may occur. The SubRegional Strategy bases growth outcomes in each Local Government at 85% achievement for each of the locations identified. This result is effected by identifying higher dwelling targets within the growth locations than the total projected dwelling growth anticipated to be achieved for each [m]unicipality. The SubRegional Strategy identifies that 3,000 additional residential dwellings are to be accommodated within the City of Nedlands municipal area, and provides six (6) discrete locations for this to occur, with the corresponding dwelling targets for each location:
•UWAQE 2 Specialised Centre 1,600 dwellings;
•Stirling Highway Urban Corridor 1,400 dwellings;
•Balance of precincts City of Nedlands Housing Diversity Study precincts 200 dwellings;
•Swanbourne High School Site 131 dwellings;
•Old Swanbourne Hospital Precinct 61 dwellings;
•Waratah Avenue Shops 40 dwellings.
Based on the above, there are a total 3,432 potential dwellings (target) provided for within the SubRegional Strategy within the City of Nedlands. The additional dwelling yield target of 3,000 dwellings represents an 87% realisation from the six (6) potential growth locations.
…
However, Mr Rowe expressed serious doubt as to whether these targets could be met. He referred to several practical difficulties for large urban consolidation projects, with particular reference to constraints along Stirling Highway, where he argued that it was unlikely that the target of 1,400 dwellings would be achieved by 2031. Significantly, he observed at para 7.49 of his witness statement:
Given the SubRegional Strategy is strategic in nature, and provides indicative locations for infill development, I consider that carefully planned infill projects, such as the proposed subdivision, will serve to assist the City of Nedlands with the delivery of the additional dwelling target of 3,000 dwellings.
During the hearing discussion arose questioning whether Liveable Neighbourhoods, which is listed as a document in Part B State and Regional Provisions of SPP 1, applied to small scale infill subdivision. Although accepting that much of Liveable Neighbourhoods focuses on large scale subdivision, Mr Rowe argued that one of the purposes of Liveable Neighbourhoods is to encourage a more compact city, and that it contains objectives and requirements intended to achieve higher densities within existing urban areas, including those close to bus services. Therefore, he argued the proposal is consistent with Liveable Neighbourhoods.
Finally, on the question of weight, Mr Rowe argued that the respondent relied heavily and placed excessive weight on SPP 3.1 (R Codes) and DC 2.2. In reference to the Codes the applicants' summary position is:
… simply one of a number of considerations the Tribunal must weigh up in its determination of this Review. No greater weight should be given to the provisions of SPP3.1 and the provisions of any other SPP, such as SPP1 and SPP3. And in the context of the City of Nedlands TPS2, being an out-of-date local planning scheme, we consider the weight to be given to the provisions of the RD Codes as contained in SPP3.1 is considerably less than the weight that might otherwise be given to the RD Codes in circumstances where a local planning scheme was not out-of-date and had recently introduced density codes to an established residential area.
With reference to DC 2.2 the applicants argue that this is an outdated policy (2003) which is under review and should receive little, if any, weight. The Tribunal should prefer higher order documents, including the PD Act and State planning policies such as SPP 1 and SPP 3 which all promote the sustainable use of urban land in the metropolitan area. This, the applicants argue, resonates through the respondent's more recent planning policies, including SPP 3, and more recent contemporary nonstatutory policies including Liveable Neighbourhoods and Directions 2031.
Even if DC 2.2 is given weight, the applicants argued that less weight should be given to requirements for lot sizes under cl 3.2.3, and more weight given to the criteria for residential subdivision listed under cl 3.1.3 which includes that all new residential lots shall be:
•capable of development;
•located in an area suitable for subdivision;
•convenient to areas of open space; and
•served by a suitable level of community services.
The applicants argue that the proposal meets all these criteria. Furthermore, the applicants contend that although the proposal does not meet the specific requirements of cl 3.2.3, discretion exists within the policy at cl 3.2.1 which states in part:
Generally, the minimum lot size [and frontage requirements] of the relevant code will form the basis for the subdivision of residential land. … [Tribunal's emphasis]
Emphasis was added to the word 'Generally', which is presumed to be a qualifier providing the discretion.

The respondent, in principle, agreed with the broad structure of the applicants' argument, the importance and hierarchy of the State's planning framework and the need for sustainable land use with consequential infill development and increasing densities in urban areas. However, there were two significant differences in emphasis. Ms O'Donohue stated at para 42 para 44 of her witness statement:
I understand that the applicant maintains that the development can be approved because the Respondent's SPP 1, SPP. 3 and Directions 2031 encourage more intense development and infill.
…
The abovementioned policies … were developed as broad sector policies to provide an overall framework and set of principles for more detailed planning to be carried out at local government level.
These broad range, strategic policies are intended to provide a guide to key planning issues facing state and local government[s]. Whilst these policies make reference to creating sustainable communities, encouraging infill development and urban consolidation[,] I do not believe that it is appropriate to apply them to small scale, individual planning proposals such as the Proposed Subdivision. In particular, I do not believe that they are intended to justify or support small scale, ad hoc subdivision of land.
Furthermore, Ms O'Donohue argues that the applicants have failed to place appropriate weight on the State planning framework's consistent reference to the consultative process with local governments and communities.
Finally, the respondent does not agree that DC 2.2 has limited weight and referred to the findings of this Tribunal in MRF Civil Pty Ltd and Western Australian Planning Commission [2009] WASAT 181 (MRF Civil). That matter involved a proposal to subdivide a property into five survey strata lots that were less than 60% of the average lot sizes described by the R 20 coding. In that matter, similar to this review, the Tribunal observed at [24]:
The applicant places great reliance on the broad strategic policies to support the subdivision at the higher density coding and argues that the more detailed planning instruments do not reflect the principles advocated in these policies.
The Tribunal then found at [28] and [29]:
The planning instruments that the respondent relies on (the Codes[,] DC 2.2 and DPS 2) are what could be considered as second and third tiered policies within the planning framework, that is, they have been developed incorporating the vision, values, principles and objectives of the broader strategic direction of SPP 3 and Network City [which the Tribunal notes has been subsequently replaced by Directions 2031]. Clearly, this layer of the planning framework does not support the subdivision of the subject land as proposed. By the terms of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission and the Tribunal on review must give due regard to cl 4.4.3 of DPS 2 and to its obvious expectation that generally the development of a grouped dwelling on land coded R20 under the Scheme requires an average site area of 450 square metres.
Further, as the Codes state, the density provisions of the Codes are intended to be guidelines for the Commission, and therefore the Tribunal, in considering subdivision applications. In addition, the Tribunal is required to give due consideration to DC 2.2 as it is a provision of the State Planning Policy 1 State Planning Framework Policy (Variation 2). DC 2.2 establishes the policy requirements for the subdivision of land for residential purposes. It is closely related to the development standards for residential development contained in the Codes and sets out circumstances in which the Commission may consider a variation below the minimum site area requirements prescribed in the Codes at cl 3.2.3. None of these apply in this instance.
For similar reasons the Tribunal finds that DC 2.2 is a relevant planning instrument that should be given considerable weight. Also, as was the case in MRF Civil, none of the existing criteria in cl 3.2.3 of DC 2.2 are met. The terms of the policy are quite clear in that 'in existing residential areas the Commission will only consider subdivision applications proposing variations to lot sizes for single houses below the minimum site requirements where the following criteria are met'. There are four criteria which must all be met:
1)The minimum site lot size variation only applies to one lot in the subdivision. The application fails because both lots require a variation.
2)The variation reduces that lot by not more than 5%. This application fails because the variations are 17% and 27%.
3)The variation in the average lot size is no more than 5%. This application fails because the variation is 33%.
4)The final criterion requires the applicants to demonstrate a particular beneficial outcome for the community. The applicants dispute that the application fails this criterion. The Tribunal does not agree with the applicants for reasons explained elsewhere in these findings.
The Tribunal acknowledges the applicants' argument that TPS 2 is an old scheme and does not necessarily reflect contemporary planning principles relating to sustainable land use, effective use of infrastructure and urban infill. During the hearing Mr Rowe, in response to a question from the Tribunal, confirmed that he does not agree with the R10 coding for the area. However, in the view of this Tribunal, the age of the scheme is not a sufficient reason to give it limited weight and ignore the R10 coding of the site and the locality.

Issue 3: the relevance of the Housing Diversity Study

It is appropriate at this stage, when considering the State planning framework, to also consider the issue dealing with the relevance of the Housing Diversity Study. Although the Scheme is 27 years old, Nedlands has not existed in a planning vacuum, totally isolated from developing planning strategies within Perth. The Housing Diversity Study should be considered in the context of Directions 2031 and the Subregional Strategy. Although the precise link between the Housing Diversity Study and the Subregional Strategy is not clear, a number of areas identified in the Study are included in the Sub-regional Strategy, including the increased density around the area described as the 'Dalkeith Village'.
During the hearing there was reference to a new draft planning scheme for Nedlands that has been through a community consultative process but is awaiting further progress due to issues raised by the respondent. Mr Rowe noted that one of the problems with the draft planning scheme was that relating to density, and that the respondent had advised that 'the scheme still requires further modifications particularly in respect to increasing residential densities before it is advertised'.
What is clear to the Tribunal is that a process of community consultation has begun where the City of Nedlands, together with the community, has identified precincts suitable for increased density. One of those precincts is logically located around an established small community village in Dalkeith, which contains a range of services and retail outlets. The review site is almost a kilometre away from the Dalkeith Village.
At this point it is appropriate to again consider the relevance of Liveable Neighbourhoods. The Tribunal finds it has limited relevance to this review since it is an operational policy for the design and structure plans and generally applies to 'Greenfield' sites or larger urban infill sites. However, it is relevant in that it supports urban infill (which could apply on a small scale) around activity centres and public transport nodes. If the principles of Liveable Neighbourhoods are to be applied in identifying opportunities for increased density in Nedlands, the locality around the view site is likely to be of low priority due to its distance from the small scale activity centre (Dalkeith Village), and that the only public transport services are bus services generally typical of low density suburbs in Perth.
It would be preemptive to determine that this proposal for a oneoff small scale infill project is consistent with the overall thrust of the State planning framework when there is an ongoing community consultative process reviewing locations for appropriate density increases within the City of Nedlands.
Nevertheless, Mr Rowe strongly advocates that this particular subdivision could proceed because it is consistent with the principles of the State planning framework for increased density, and that it could proceed without any adverse impact on the character of the neighbourhood.
The Tribunal finds that the proposal is inconsistent with DC 2.2 and SPP 3.1. These findings are not inconsistent with the rules in SPP 1 for resolving conflict between the various layers of the State planning framework for the reasons described above; particularly with reference to the need for consultation described in the higher documents and the findings in MRF Civil and Lawrence.

Issue 4: whether the proposed subdivision is consistent with the character of the neighbourhood

On this issue Mr Rowe stated that although he did not agree with the R10 coding for the site, he noted the respondent's concerns about the impact of the proposal on neighbourhood character. He had instructed an architect to prepare a proposal for a house on Lot 2 (the proposed lot which is the current location of an unused tennis court). Mr Rowe was able to demonstrate that it was reasonably possible to develop a large two storey, four bedroom, three bathroom dwelling that complied entirely with the acceptable development standards of the Codes.
In addition, Mr Rowe provided evidence of several undersized lots in the immediate locality. There was a dispute during the hearing as to the timing of these subdivisions, with the respondent arguing that they were all approved prior to the gazettal of the Scheme, with the exception of a couple of subdivisions which were approved because they were boundary adjustments. The Tribunal accepts the evidence of the respondent, that there have been no nearby subdivisions approved since the gazettal of the Scheme. Furthermore, the respondent submitted that the locality includes several lots that have been amalgamated during the life of the Scheme. The Tribunal notes that the evidence relating to the creation of larger lots for a single residence did not include the house adjoining the review site on the corner of Brockman Avenue and Carroll Street where a single dwelling has been built across two lots.
Mr Rowe also provided some statistical evidence of the lack of impact on the average density of this locality if the subdivision proceeded. Furthermore, his statistical information indicated that if all the potential precedents identified by the respondent proceeded to subdivision, the average density for the suburb still remained at R10. In addition, Mr Rowe provided a list of 73 undersized lots in the Dalkeith suburb with reference to the R10 coding. Some of them were part of the original 1913 and 1936 subdivisions, and many were located a considerable distance from the review site on the other side of the Dalkeith Village.
Nevertheless, there were about a dozen lots within easy walking distance of the review site that were created as two lot subdivisions after the original subdivision. The Tribunal, in the company of the parties, viewed most of these sites. Mr Rowe argues that the dwellings located on undersized lots are:
… generally provided with appropriate setbacks and landscaping, which from the street, present a consistent built form and streetscape outcome when compared with dwellings located on lot sizes consistent with the minimum lot size requirement of the Residential R10 density coding.
Furthermore, he argues that there are improved outcomes for the secondary street because the rear lot created from the corner lot faces the street and improves the streetscape and activation of the street. He concluded that not only will the proposal not have a negative impact on the character of the area, it would improve the streetscape by making a positive contribution to Murray Street.
The respondent focused on the streetscape character within a five minute walk or 400 metre radius of the site. This distance was based on the walkable neighbourhood distance in Liveable Neighbourhoods. Ms O'Donohue stated:
At present, the Subject Land and surrounding properties are characterised by low scale density development comprising large lots developed with substantial single dwellings and extensive gardens. The intensity and form of development on these properties, particularly corner lots, provides a perception of space and openness. At the intersection of Brockman Avenue and Murray Street, where the Subject Land is located, the perception of green open space is reinforced by a centrally located park, around which five street blocks are positioned. Many of the residential properties developed along the streets surrounding the park are orientated toward the park. Many have large, well maintained verges, established trees and lush gardens which add to the overall impression of a leafy, garden city character that is not typical of many other suburbs.
Ms O'Donohue argued that approval of the subdivision would be likely to result in a change to the character and the streetscape of the locality by permitting more intense residential development. Although Ms O'Donohue acknowledged that Mr Rowe had demonstrated it was possible to develop a dwelling that complied with the Codes, she felt that land values in the area would be more likely to result in larger dwellings on large lots, as typified in the locality. Furthermore, she noted that the existing two storey dwelling was located only 2 metres from the proposed boundary rather than the minimum rear setback of 6 metres. The likely impact on the streetscape was two large two storey dwellings in close proximity to each other, rather than a single dwelling on a corner lot with a substantial setback from the rear neighbour, which is typical of corner lots in the locality.
On balance, the Tribunal agrees with the respondent. Although Mr Rowe was able to demonstrate the lack of statistical impact on the average density if this and other subdivisions proceeded, he was not able to demonstrate a lack of impact on the character. This particular locality is characterised by large dwellings in a garden setting on large lots. The landscape character of the area, the openness and the separation between dwellings, especially down secondary streets, is likely to be compromised by facilitating the development of a large dwelling on a small lot.

Issue 5: precedence

Bearing in mind the previous findings, it is now appropriate to deal with the issue of precedence. Precedence was considered by the Tribunal in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (unreported; WATPAT, Appeal No 13 of 1988, 21 October 1988) (Aspen) and Marshall v Western Australian Planning Commission (1995) 15 SR(WA) 170 (Marshall), in Nicholls v Western Australian Planning Commission (2005) 149 LGERA 117 (Nicholls) at [71] and [75]. In Nicholls the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in the planning assessment. Also, from Goldin v Minister for Transport (2002) 121 LGERA 101 (Goldin), as consistent with Western Australian authority:
(1)That the proposed development or subdivision is not in itself unobjectionable; and
(2)That there is more than a mere chance or possibility that there may be later undistinguishable applications.
For a precedent to be a relevant factor, both tests must be satisfied.
In this instance, for reasons discussed earlier, the proposed subdivision is not unobjectionable and therefore the first test for precedent is satisfied.
Furthermore, it is quite clear that within the locality of this review site (approximately a 500 metre radius) there were over 20 corner lots which are indistinguishable in principle; that is, the lots are a similar size and have three street frontages (with the third street being former rights of way that are now named streets). Mr Rowe argued that the subject site is almost unique due to other characteristics, such as the ability to retain the existing dwelling and the existence of a large area of cleared land suitable for redevelopment without any loss of vegetation or a garden setting. The Tribunal finds that these details do not significantly change the potential for other subdivision applications.
Therefore, the Tribunal finds that the second test for a precedent has been satisfied because there is more than a mere chance or possibility that there may be later undistinguishable applications. Hence, the Tribunal finds that approval of the proposed subdivision would set an undesirable precedent.

Issue 6: the appropriateness of utilising s 138 of the PD Act to approve the application

Section 138(2) of the PD Act provides that, subject to s 138(3), in giving its approval under s 135, the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and 'is not to give an approval that conflicts with the provisions of a local planning scheme'. Section 138(3) of the PD Act sets out the six circumstances in which the Commission may give an approval under s 135 that conflicts with the provisions of a local planning scheme.
Because of earlier findings of this Tribunal, as described above, this issue does not arise for the following reasons: by reference to Landpark it was found that the proposal did not conflict with the Scheme and that there was discretion within the Scheme and the State planning framework to approve the application. Also, for reasons described above, the Tribunal has found it is not appropriate to exercise discretion.

Issue 7: hardship

The Tribunal received a witness statement from one of the two applicants describing their particular circumstances. Those circumstances were not challenged by the respondent. Recently, this Tribunal summarised key aspects of hardship as an issue in Tipping and Western Australian Planning Commission [2010] WASAT 149 at [84] and [89] where it stated:
Section 241(3) of the PD Act provides:
In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than three lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.
…
The Tribunal is conscious that caution is required when having regard to a claim of hardship. It is important to emphasise that the claim is one of hardship[,] not a claim that the application is to be treated compassionately or determined on compassionate grounds: Tyrell v Western Australian Planning Commission [2004] WATPAT 172 (Tyrell) at [33]. Hardship has an element of objectivity[,] hence the express reference to the need to prove hardship to the satisfaction of the Tribunal: Tyrell at [35]. Development and subdivision approvals remain with the land. The Tribunal must be satisfied the hardship is related to the present planning situation and that having regard to the hardship considerations would not affect the application of sound planning principles.
In this instance, it is not necessary to assess whether hardship has been established to the satisfaction of the Tribunal because the Tribunal has found, for reasons stated earlier, that approval of the subdivision would be inconsistent with the application of sound planning principles.

Conclusion

For the above reasons the Tribunal finds that the application for review has been unsuccessful and issues the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to refuse subdivision approval is affirmed.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER