MOUSSALLI and WESTERN AUSTRALIAN PLANNING COMMISSION

Case •

[2025] WASAT 98

•

17 SEPTEMBER 2025

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   MOUSSALLI and WESTERN AUSTRALIAN PLANNING COMMISSION [2025] WASAT 98

MEMBER:   MS R LAVERY, MEMBER

HEARD:   10 AND 26 JUNE 2025

DELIVERED          :   17 SEPTEMBER 2025

FILE NO/S:   DR 158 of 2024

BETWEEN:   REEF MOUSSALLI

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent


Catchwords:

Town planning - Application for subdivision - Two-lot subdivision - Survey strata subdivision - Land coded R20 - R-Codes minimum and average site area requirements - Whether appropriate to depart from policy - Orderly and proper planning - Planning precedent - Whether proposed subdivision is unobjectionable

Legislation:

City of Joondalup Local Planning Scheme No. 3, cl 16(2)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (WA), s 144(1), s 251(1)
Planning and Development Regulations 2009 (WA)
Residential Design Codes Volume 1, cl 1.1, P1.1.2
State Administrative Tribunal Act 2004 (WA), s 27(2)
Strata Titles Act 1985 (WA)

Result:

The decision of the Respondent is affirmed and the subdivision plan dated 28 April 2025 is refused
The application for review is dismissed

Category:    B

Representation:

Counsel:

Applicant : No-appearance
Respondent : Mr R Shaw (Acting as Agent)

Solicitors:

Applicant : N/A
Respondent : Department of Planning, Lands and Heritage (as Agent)

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

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

De Abreu v Western Australian Planning Commission [2019] WASAT 57

Marshall v Metropolitan Redevelopment Authority [2015] WASC 226

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

  1. This decision is in relation to the review of a decision of the Western Australian Planning Commission (WAPC, Commission or respondent) on 4 September 2024 to refuse the revised application for subdivision of land dated 28 June 2024 for Lot 167 (No. 21) Aristride Avenue, Kallaroo (the subject land). 

  2. Mr Reef Moussalli (the applicant) sought and was granted leave by the Tribunal on 16 June 2025 for a further revised plan dated 28 April 2025 (the proposed subdivision) to be the subdivision plan the subject of this Application for Review brought under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act).  The proposed subdivision is to subdivide the 858m2 subject land into two survey-strata lots with areas of 475m2 (Lot 1) and 333m2 (Lot 2), with 50m2 common property. 

  3. For the reasons given below, the Tribunal has determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), is to dismiss the application for review and affirm the decision of the respondent of 4 September 2024 to refuse the subdivision application.

Procedural history

  1. There is a history of several amended plans through the original application process and since the original application was refused by the respondent which can be summarised as follows:

    •Original Application on 3 November 2023 sought subdivision of the subject land into two survey-strata lots with areas of 485m2 (Lot 1) and 300m2 (Lot 2), with 73m2 common property.

    •On 27 January 2024, a revised plan of subdivision was submitted, replacing the original subdivision proposal.  This plan proposed lot areas of 467m2 (Lot 1) and 391m2 (Lot 2), in a battleaxe configuration with no common property.  At the time, Mev Surveys who made application on behalf of the applicant advised that the amended plan dated 27 January 2024 was intended to be lodged at the time of submission and that the plan dated 3 November 2023 was lodged inadvertently.

    •On 23 February 2024, a second revised plan of subdivision was submitted which proposed lot areas of 467m2 (Lot 1) and 350m2 (Lot 2), with 41m2 common property (Original Subdivision).

    •On 30 April 2024, the Respondent (under delegation) refused the Proposed Original Subdivision application (plan dated 23 February 2024) for the following reasons:

    1.The proposed subdivision does not comply with State Planning Policy 7.3 Residential Design Codes Volume 1 (2024) and the Western Australian Planning Commission's Development Control Policy 2.2 - Residential Subdivision by reason that:

    a)Proposed Lot 2 does not meet the minimum site area requirement for the R20 density code as specified in Part D, clause 1.1 and Table D of the Residential Design Codes, and does not meet the variation criteria as specified in clause 4.2.4 Development Control Policy 2.2 – Residential Subdivision to consider a reduction to the site area requirements;

    b)Proposed Lot 2 is irregular in shape and does not provide an effective area that is conducive for a development at an R20 density code as per clause 4.3.1 of Development Control Policy 2.2 – Residential Subdivision; and

    c)Proposed Lot 2 does not provide sufficient space for safe vehicle manoeuvring to facilitate vehicles exiting the site in forward gear as specified by clause 5.3.4 and 5.3.5 of the Residential Design Codes, and clause 4.6 of Development Control Policy 2.2 – Residential Subdivision.[1]

    [1] Respondent's Decision Letter dated 30 April 2024; Respondent's s 24 Bundle of Documents, pages 73 - 74.

    •On 28 May 2024, the Applicant applied to the Respondent to reconsider its decision dated 30 April 2024 to refuse the subdivision application (plan dated 23 February 2024), in accordance with s 144(1) of the Planning and Development Act 2005 (WA) (PD Act).

    •On 28 June 2024, the Applicant submitted a revised plan of subdivision, which proposed lot areas of 485m2 (Lot 1) and 333m2 (Lot 2), with 40m2 common property, which accompanied the initial application for review that is subject of the current review proceedings currently before the Tribunal. Lot 2, as depicted in plan of subdivision dated 28 June 2024 comprises:

    (a)an almost rectangular 234m2 area to the rear of the subject land; and

    (b)a 99m2 area between the abovementioned area to the rear of the subject land and the common property at the front of the subject land.  The respondent says this area can be broken down into two further parts:

    i.A vehicle and pedestrian access leg with a width of 4 metres and an area of 38m2; and

    ii.A 5.7 metre by 9.5 metre truncation associated with the abovementioned access leg, with an area of 71m2. The access leg begins to truncate 18.2 metres from the street boundary.

    •At its Statutory Planning Committee (SPC) meeting on 4 September 2024, the respondent refused the proposed subdivision plan dated 28 June 2024 for the following reasons:

    a)The proposed site areas do not satisfy the deemed-to-comply or performance-principle provisions for R20 development under clause 1.1 of Part D of the R-Codes and the variation criteria at section 4.2.4(a) of OP 2.2;

    b)The configuration of Lot 2 is irregular and does not provide an effective area that is conducive to development that is consistent with the R20 density code specified under LPS 3, which conflicts with clause 1.1 of Part D of the R-Codes, section 3.7 of OP 1.1, and sections 4.1.3 and 4.3.1 OP 2.2;

    c)Vehicle manoeuvring space within Lot 2 does not comply with AS2890.1 and will unreasonably constrain the effective area of the lot in a manner that is inconsistent with clauses 5.1.4 and 5.3.4 of Part B of the R-codes and section 4.3.1 of OP 2.2;

    d)The proposed common property does not accommodate sufficient manoeuvring space to facilitate vehicular access to Lot 1, which conflicts with clauses 5.3.4 and 5.3.5 of Part B of the R-Codes, section 3.7 of OP 1.1, and section 4.6.2 of OP 2.2; and

    e)Approval of the subdivision would set an undesirable precedent that undermines the objectives of the Residential zone specified at clause 16(2) of LPS 3, and the objectives of the R-Codes, OP 1.1 and OP 2.2.[2]

    •On 18 September 2024, the Applicant lodged an application for review of the respondent's decision of 28 June 2024 with the Tribunal.

    •The Applicant was granted leave by the Tribunal to file a further revised subdivision plan with the Tribunal and did so on 28 April 2025.  The 28 April 2025 plan is the proposed subdivision plan that is now before the Tribunal for review.

Proposed Subdivision

[2] Respondent's Amended Statement of Issues Facts and Contentions dated and filed 15 May 2025 (RASIFC) Document 1 - Statutory Planning Committee decision letter - RB, pages 4 - 5.

  1. The proposed subdivision plan as filed by the applicant with the Tribunal on 28 April 2025, proposed two survey-strata lots with areas of 475m2 (Lot 1) and 333m2 (Lot 2), with 50m2 common property.  The proposed subdivision shows a pedestrian gate on the boundary between Lot 1 and the common property, directly behind the existing garage.

  2. Lot 2 of the proposed subdivision is comprised of a generally rectangular 234m2 area to the rear of the subject land and a 99m2 area between the aforementioned area to the rear of the Lot 2 and the common property at the front of Lot 2.  This area 99m2 area consists of a vehicle and pedestrian access leg with a width of 5.4 metres and an area of 82.8m2 with a 4.5 metre by 7.3 metre truncation with an area of 16.2m2 associated with the access leg.  The access leg truncation commences at a point 20.5 metres from the street boundary.

Issues

  1. The parties do not dispute that the overarching issue for the Tribunal to determine is whether the proposed subdivision should be approved and that in determination of that issue the following matters are to be considered:

    (a)Whether, in relation to the minimum and average size of the proposed lots, the proposed subdivision satisfies the variation criteria at section 4.2.4 (a) of Operational Policy 2.2 - Residential Subdivision (OP 2.2) and the design principles for R20 development under clause 1.1 of Part D of the Residential Design Codes Volume 1 (R-Codes Volume 1);

    (b)Whether approval of the proposed subdivision is consistent with orderly and proper planning having regard to:

    (i)the R20 density code specified under City of Joondalup Local Planning Scheme No. 3 (LPS 3);

    (ii)Operational Policy 1.1 - Subdivision of Land - General Principles (OP 1.1);

    (iii)OP 2.2;

    (iv)Development Control Policy 1.3 - Strata Titles (DC 1.3);

    (v)Parts B and D of the R-Codes Volume 1; and

    (c)Whether approval of the proposed subdivision would create an undesirable precedent.

  1. I will describe the subject land and the proposed subdivision, with some context of the locality and then address the issues in turn.

  2. In relation to these issues the Tribunal had the benefit of expert evidence from Mr Dan McCluggage an experienced town planner on behalf of the respondent.  The applicant did not adduce expert evidence.  The parties, the respondent's witness and the Tribunal also had the benefit of a site view of the streetscape and the site with particular attention to the extent of proposed Lot 2, on the first day of the hearing.

Subject land

  1. The subject land is identified as Lot 167 (No. 21) Aristride Avenue, Kallaroo on Plan 16673, Certificate of Title 1824/929.  It is located in the established suburb of Kallaroo in the City of Joondalup municipal area.  The subject land is located at the T-junction intersection of Aristride Avenue with the southern entrance to Kebroyd Way.

  2. The existing 858m2 Lot 167 is improved with a single storey brick and tile dwelling constructed in 1989 with a finished floor level (FFL) of 14.36 metres AHD approximately 2.04 metres higher than the level at the street boundary.  The dwelling includes a double garage with an FFL approximately 1.5 metres lower than the dwelling and approximately 0.46 metre above the level at the street boundary. 

  3. The topography of the subject land rises from the front boundary to the rear boundary approximately 4.9 metres with the depth of the original Lot 167 ranging from 38.14 metres to 39 metres.  The maximum slope between the rear of the dwelling and the rear of the original lot is approximately 3.0 metres.

  4. The subject land is located approximately 655 metres north of the northern boundary of the Whitfords Activity Centre Structure Plan (WACSP) area as the crow flies and approximately 910 metres using the existing street/footpath network.

  5. Whitfords Activity Centre (WAC) is identified as a 'Secondary Centre' under the City of Joondalup Local Planning Strategy (LP Strategy) and State Planning Policy 4.2 - Activity Centres (SPP 4.2).

  6. The WAC is not associated with an existing or proposed train station.  SPP 4.2 identifies Secondary Centres that are not associated with an existing or proposed train station as having a walkable catchment of 400 metres.  The subject land is located approximately 5.3 kilometres by car from the nearest train station being Whitfords Train Station.

  7. The subject land is also not located within any of the ten existing 'Housing Opportunity Areas' (HOAs) identified under the City's Local Housing Strategy for increased density.

Proposed Subdivision

  1. The proposed subdivision in accordance with the plan dated 28 April 2025 is for two survey-strata lots with areas of 475m2 (Lot 1) and 333m2 (Lot 2), with a 50m2 common property lot.  The proposed subdivision indicates a pedestrian gate on the boundary between Lot 1 and the common property, directly behind the existing garage.  The applicant's justification for the common property lot will be discussed later in these reasons.

  2. Lot 2 in the proposed subdivision comprises:[3]

    a)An almost rectangular 234m2 area to the rear of the subject land;

    b)A 99m2 area between the abovementioned area to the rear of the subject land and the common property at the front of the subject land. This area can be broken down into two further parts:

    iA vehicle and pedestrian access leg with a width of 5.4 metres and an area of 82.8m2; and

    ii.A 4.5 metre by 7.3 metre truncation associated with the abovementioned access leg, with an area of 16.2m2. The access leg begins to truncate 20.5 metres from the street boundary.

Locality

[3] RASIFC dated and filed 15 May 2025, para 9b.

  1. Mr McCluggage in his witness statement defines the locality as the area bound by Mullaloo Drive to the north, Dampier Avenue to the east, Whitfords Avenue to the south and Northshore Drive to the west, except for the area to the south of Castlecrag Drive and east of Belrose Entrance where the properties are coded R20/40.[4]  This locality shares the same strategic planning characteristics of being coded R20 under LPS 3, outside the walkable catchment of any activity centres and train stations, and not within a HOA identified under the LP Strategy.  Mr Moussalli did not dispute the locality and I find it to be as defined by Mr McCluggage for the purposes of this case.

    [4] This area is illustrated on the map included in attachment DM3 to Witness Statement of Mr Dan Phillip McCluggage dated and filed 27 May 2025.

  2. Mr McCluggage describes, Mr Moussalli does not dispute and I find that the character of the locality can be characterised as an area in transition.  Housing consists of older more modest single storey brick and tile houses constructed in the late 1980s and early 1990s, like the house on the subject land, and newer two to three storey dwellings with either pitched or concealed rooves.  The newer larger dwellings can be found throughout the locality, but Mr McCluggage observed that they are most prevalent in the more elevated areas with ocean views.

Planning framework

  1. In determining this application, I have considered the following relevant planning framework including:

    (a)PD Act;

    (b)Strata Titles Act 1985 (WA) (ST Act);

    (c)Planning and Development Regulations 2009 (WA) (PD Regulations);

    (d)Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations);

    (e)Metropolitan Region Scheme (MRS);

    (f)City of Joondalup Local Planning Scheme No 3 (LPS 3);

    (g)State Planning Policy 1 State Planning Framework (SPP 1);

    (h)Statement of Planning Policy 3 Urban Growth and Settlement (SPP 3);

    (i)State Planning Policy 4.2 Activity Centres for Perth (SPP 4.2);

    (j)State Planning Policy 7.3 Residential Design Codes Volume 1

    (k)(R-Codes) Parts B and D;

    (l)Development Control Policy 2.2 - Residential Subdivision (DC 2.2);

    (m)Development Control Policy 1.3 - Strata Titles (DC 1.3)

    (n)Operational Policy 1.1 - Subdivision of land - general principles (OP 1.1); and

    (o)City of Joondalup Local Planning Strategy (LP Strategy).

Zoning

  1. The subject land is zoned Urban under the Metropolitan Region Scheme. The subject land and properties in the surrounding locality are zoned Residential and coded R20 under LPS 3.

  2. Clause 16(2) of LPS 3 provides the following three objectives for the Residential zone:

    •To provide for a range of housing and a choice of residential densities to meet the needs of the community.

    •To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.

    •To provide for a range of non-residential uses, which are compatible with and complementary to residential development.

SPP 1

  1. SPP 1 sets out the State Planning Framework which includes all current policies, strategies and guidelines of the respondent that provide direction on the form and method of growth and development in Western Australia.

OP 1.1

  1. OP 1.1 sets out the general principles, for determining applications for the subdivision of land.  Clause 2 of OP 1.1 provides the following relevant Policy Objectives:

    …

    •To ensure that the subdivision of land is consistent with:

    -State Planning Policy No. 1 - State Planning Framework (SPP No. 1)

    -Perth and [email protected]

    -relevant WAPC policies and plans

    - the provisions of the relevant local planning scheme

    •Orderly and proper planning and the character of the area.

    …

    •To facilitate development that achieves appropriate community standards of health, safety and amenity.

    •To support the maintenance and enhancement of the urban tree canopy.

    •To ensure constructed vehicle access from the gazetted public road system to each new lot.

    •To create lots that are capable of lawful development and, at the same time, ensure that existing lots or the development upon them is not rendered illegal[.]

  2. Clause 3.7 of OP 1.1 requires new lots to be capable of development in accordance with applicable development standards:

    3.7Lawful development

    3.7.1 Local planning schemes usually incorporate standards governing the development of lots, most commonly through minimum lot size for different land uses. Also relevant are minimum frontage requirements, the need to meet setback requirements, and compliance with open space provisions. In areas not subject to an operational scheme, similar requirements may be contained in local laws made under the Local Government Act 1995.  For residential development, State Planning Policy 7.3 Residential Design Codes - V1 provides guidance on the minimum and average lot sizes of which the WAPC will have due regard.

    3.7.2Lots that cannot be developed in accordance with relevant statutory requirements will not be approved.

    The WAPC will also ensure that, by creating a new lot, it does not render an existing lot or development upon that lot illegal in terms of statutory requirements. Such matters may include lot sizes, parking, setbacks or the provision of services.

    3.7.3Residential lots of less than 260m2 in size and/or irregular configuration may need to demonstrate whether the site can accommodate a dwelling, through a development application and/or building plans being lodged with the local government.  The WAPC may, where appropriate, impose conditions of approval relating to obtaining and implementing development approvals required to integrate subdivision and development.

    3.7.4WAPC approval of a subdivision application includes the works necessary to carry out the subdivision, but it does not include approval for subsequent development on the subdivided lots.

OP 2.2

  1. OP 2.2 provides for the requirements for subdivision of land into residential lots and is related to the site area per dwelling standards contained in the R-Codes Volume 1.  The respondent points out that cl 2 provides an introduction to the policy and outlines that '[t]his policy is not to be used to circumvent the R-Coding of land to facilitate subdivision and increased density not intended under local planning frameworks'.

  2. Policy objectives are provided under cl 3:

    3.1To establish a consistent and coordinated approach to the creation of residential lots throughout Western Australia

    3.2To adopt criteria for residential lots that will ensure each lot has a suitable level of amenity, services and access.

    3.3To facilitate the supply of residential lots in regular shapes and site ranges that reflect the statutory provisions of the local planning scheme - including the R-Codes, the availability of reticulated sewerage, electricity and water and the need for frontage to public streets for access.

  3. Clause 4.2.4(a) of OP 2.2 provides the following relevant criteria that the respondent will consider when determining whether to vary the minimum and average lot size in existing residential areas for subdivision and survey-strata subdivision (excluding battleaxe subdivision).

  4. Clause 4.2.4 (a) states:

    4.2.4. In existing residential areas, the WAPC will only consider subdivision or survey-strata applications proposing variations to lot sizes below the minimum and average site area requirements specified in R-Codes Volume 1 Table D or elsewhere in the R­Codes for non-battleaxe configured lots, where the following criteria are met:

    a)Variations to minimum and average lot size up to five per cent criteria

    •the proposal satisfies the relevant design principles of the R-Codes Volume 1 Part D, clause 1.1 Site Area.

    •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 five per cent of the minimum lot size specified in R-Codes Volume 1 Table D or elsewhere in the R-Codes.

    •the variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than five per cent of the average lot size specified in the R-Codes Volume 1 Table D or elsewhere in the R-Codes.

    •in considering lot size and frontage variations, the WAPC will give regard to the recommendations of the local government.

    •where a local government objects to a variation, the objection should be supported by reasons, with reference to the provisions in this policy.

    •where a local government objects to a variation and the WAPC is of the view the application should be supported, further consultation may be undertaken with the local government before the application is determined by the WAPC.

Tribunal's considerations

  1. It is anticipated that consideration of the parts of the issue will confirm the outcome of the overall issue.  I will address each part in turn.

Whether, in relation to the minimum and average size of the proposed lots, the Proposed Revised Subdivision satisfies the variation criteria at cl 4.2.4(a) of OP 2.2 and the design principles for R20 development under clause 1.1 of Part D of the R-Codes Volume 1

  1. The parties agree that the proposed subdivision results in a variation to the minimum lot size for only one lot being proposed Lot 2 with a variation of 4.85% to the minimum lot size and a 4.67% variation to the average site area for R20.

  2. The relevant local government being the City of Joondalup was consulted by the respondent and objected to the proposed variation to minimum and average lot sizes initially in regard to the plan dated 3 November 2023 for the following reasons:[5]

    •The proposal does not meet the deemed-to-comply requirements of clause 5.1.1 of State Planning Policy 7.3 Residential Design   Codes - Volume 1 as it does not meet the average lot size or the design principles P1.2. Proposed Lot 2 has a minimum lot size of 300m2, which exceeds the 5% minimum site area variation which can be considered under Development Control Policy 2.2 - Residential Subdivision.

    •The proposed subdivision does not demonstrate that there is sufficient vehicle manoeuvrability to enable vehicles to turn and exit from proposed Lot 2 in forward gear.  Given the lack of supporting justification for the lot layout or demonstration of vehicle manoeuvrability, the subdivision is not considered to meet clause 5.3.4 C4.1 or P4, or clause 5.3.5 C5.4 or P5.1 of the Residential Design Codes.

    [5] Respondent's s 24 Bundle dated 28 February 2025 Tab 10 - City of Joondalup response to respondent referral dated 5 January 2024.

  3. On further referral to the City for the subsequent amended plan dated 28 June 2024 with concept plans, the City reiterated its concerns with regard to the vehicle access and turning template in relation to the access to the proposed garage and also indicated that it agreed with the respondent that the amended plan resulted in an irregular shaped lot, contrary to the planning framework and in particular cl 4.3.1 of OP 2.2.[6]  The respondent contends that the proposed subdivision varies little from the 28 June 2024 amended plan and has the same relevant matters for consideration.

    [6] Respondent's s 24 Bundle dated 28 February 2025 Tab 10b - Email with City of Joondalup response to respondent dated 15 August 2024.

  4. Design Principle P1.1.2 of Part D of the R-Codes Volume 1 provides that the respondent (in consultation with the local government) may approve a variation to the minimum and/or average site area up to 5% as follows:

    P1.1.2 The WAPC, in consultation with the local government, may approve the creation of a green title lot, survey-strata lot or strata lot of a lesser minimum and/or average site area than that specified in Table D provided that the proposed variation would be no more than five per cent less in area than that specified in Table D and will:

    i.facilitate the protection of an environmental or heritage feature;

    ii.facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention;

    iii.facilitate the development of lots with separate and sufficient frontage to more than one public street;

    iv.overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature;

    v.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

    vi.achieve specific objectives of the local planning framework.

  1. It is the respondent's contention that in respect to the six criteria for consideration of an up to 5% reduction in minimum lot size under cl P1.1.2, the proposed subdivision does not meet any of the criteria for the following reasons:

    (i)The subject land does not include any registered heritage values, or propose to retain any environmental feature;

    (ii)The proposed subdivision does not facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention. They say specifically that the subject land has no distinguishable features, or significant element that contributes to the streetscape that will be retained as part of the subdivision.  They also contend that the established Aristride Avenue streetscape does not have any discernible significance in terms of built form, alignment, landscape and/or biodiversity and that this is further evidenced by the redevelopment of lots in the locality with new larger homes;

    (iii)The subject land has sole frontage and access to Aristride Avenue and therefore has no ability to facilitate the development of lots with separate and sufficient frontage to more than one public street;

    (iv)The existing dwelling does not constitute a 'special or unusual limitation' and the subject land is of regular size and shape.  The proposed subdivision does not therefore overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature;

    (v)Rather than being developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed, the future development of proposed Lot 2 is likely to be constrained by its proposed configuration and its existing topography, resulting in a considerably smaller dwelling than the established built form and character of the locality; and

    (vi)Contrary to the planning framework, the proposed subdivision results in an irregular shaped lot primarily by virtue of the elongated truncation.

  1. The respondent contends that proposed subdivision is not consistent with orderly and proper planning and is objectionable because the irregular shape and layout of proposed Lot 2 results in an effective lot area that is inconsistent with the R20 coding of the subject land.  The respondent also contends that the irregular shape and layout of the proposed Lot 2 is a result of the applicant attempting to circumvent the requirements of battleaxe subdivision.

  2. The applicant does not dispute the respondent's position in regard to points (i) to (iii) above but disputes points (iv) - (vi) in para [36] above.  I will address points (iv) - (vi) in turn.

  1. overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature

  1. Mr Moussalli says in relation to point (iv) that the subject land itself is not rectangular because it has corner angles of 88 and 92 degrees which proves it is definitely not rectangular.  He therefore argues that the subject land is not of a regular shape and that this should be considered a special or unusual limitation on the development of the subject land in the exercise of discretion.  Mr Moussalli says, 'in my view, it is something that I think the - this point 4, the shape, unusual limitation of the shape, because the shape does not allow full use'.[7]

    [7] ts 64, 26 June 2025.

  2. It is however the position of the respondent, and I accept that position, that the subject land is generally rectangular and that the variations to the angle of the corners by degree are not such that the subject land would warrant consideration as an irregular shaped lot.

  3. I therefore find I am persuaded by the respondent that the original lot for the subject land is not an irregular shaped lot, it does not represent a special or unusual limitation on the development of the subject land, it does not provide a cogent reason to depart from the minimum and average lot sizes and it does not warrant the exercise of discretion in this case.  

  4. Mr Moussalli says that another feature of the lot that could be considered an unusual limitation on the subject land is the slope.  I accept his position to the extent that the considerable slope of the subject land is an unusual limitation on the subject land, however I am not convinced that the subdivision, as proposed, overcomes that unusual limitation for two reasons.

  5. Firstly, the respondent and the City both identify issues of vehicular manoeuvrability on Lot 2 which would result in vehicles having to leave the property in reverse gear down a steeply sloping driveway, entering Aristride Avenue at the T-junction intersection with Keybroyd Way.

  6. The only solution offered by the applicant, to what is identified by the respondent as a suboptimal planning outcome, is a vehicle turntable.  In relation to the vehicle turntable, I accept the respondent's position that the provision of a vehicle turntable cannot be reasonably required at subdivision stage and may not be achievable or even desirable at development stage.  This leaves the vehicle manoeuvrability and access issue unresolved for the proposed subdivision in the current configuration.

  7. Secondly, the significant slope of the rear portion of Lot 2, which the site view showed was already subject to significant existing retaining walls, would require additional retaining to accommodate a future dwelling.  Mr Moussalli says that '[s]o because you have the retaining wall at the top and you cannot build up to the retaining wall.  You probably have to build another retaining wall, and that is a limitation of the point 4'.[8]

    [8] ts 64, 26 June 2025.

  8. In viewing the site, it was evident that the significant 4.9 metre level increase from the front to the rear of the subject land had required retaining but had been substantially managed for the existing dwelling and those dwellings on adjoining sites through the stepping of the site which occurred over the 38.14 to 39 metre depth of the lot.  Proposed Lot 2 rises up to 3.0 metres over the 15.8 metre depth of the developable portion of the lot. So it is reasonable to expect that up to an additional 3.0 metres of retaining would be required for a future dwelling on proposed Lot 2.

  9. I therefore find I am not convinced that the proposed subdivision layout assists with the constraints or limitations of the subject land, such that the subdivision outcome for such sloping land is improved by the configuration of the proposed subdivision. 

  10. It is therefore my finding that the proposed subdivision configuration does not overcome a special or unusual limitation on the development of the subject land imposed by its size, shape or other feature and exercise of discretion is not warranted on this basis.

  1. 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

  1. Mr Moussalli says that the proposed subdivision will mean that a second dwelling can be constructed at the rear of the existing dwelling and that as it will hardly be visible from the street, it does not impact on the streetscape.  Mr Moussalli references dwellings constructed on battleaxe lots at the rear of other surrounding properties, including No. 4 and No. 4A Fairlight Rise, Kallaroo within the locality.

  2. Mr Moussalli says that he understands that the R-Codes:[9]

    … generally prefer all the houses' fronts to be visible … And now, with the battle-axe blocks, because they have, generally, a narrow access way to the back, the house is not visible from the street.  And in lots of the pictures here, in these pictures, he has shown where - the battle-axe block pictures - and they're not visible, not so visible.  In my situation, it's going to be more visible because it's higher up, and pretty much the top area … which is the effective lot area, is going to be built on.

    [9] ts 131, 26 June 2025.

  3. He says that the alternative offered by the respondent of a side­by­side lot configuration with or without modification to the existing dwelling is a worse outcome than a rear 'battleaxe' configuration:[10]

    So even if I don't subdivide, I sell the whole block, someone will come along and - and because WAPC has expressly stated, in many occasions, that you can subdivide down the middle and even with partial demolition of the house, someone will do that.  And the result is going to be horrific for the street because all of a sudden, you drive along, and you've got frontage of 20 or so houses - metres or more.  And all of a sudden, you have eight-metre frontage.  Now, that is worse, if I may say, than a battle­axe block, or the house being at the back and invisible.  That is going to create a precedent.  And the objectives of the code are clearly - mentioned that a variety of house types and shapes and sizes to accommodate different budgets - that is the R-Code.

    [10] ts 132, 26 June 2025.

  4. The respondent asserts that there are currently no lots in the locality with an area of less than 350m2.  Mr McCluggage opines that in regard to whether the subdivision would 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, that the proposed subdivision would not satisfy this criteria as:[11]

    the L-shaped design of proposed Lot 2 would result in an effective lot area of approximately 234 square metres, which, in my opinion, would facilitate a much smaller dwelling footprint than land in the surrounding locality, and immediate streetscape.  In my opinion, what this could result in is, essentially, development applications being received by the local government, with different expectations to as to what can be developed, based on the fact that it is coded R20, and that could result in dwellings seeking significant discretion to deemed to comply requirements of the R-Codes, such as lot boundary setbacks, the extent of boundary walls, outdoor living area, open space and so forth.

    [11] ts 73 - 74, 26 June 2025.

  5. Mr McCluggage says that he is appreciative and empathetic to the personal circumstances Mr Moussalli has explained.  He is of the opinion that the application is principally before the Tribunal due to the applicant's specific desire to develop the site without making modifications to the existing dwelling.

  6. The housing found in the locality is generally single storey brick and tile houses of the 1980s and 1990s with newer larger houses generally in the elevated areas with ocean views facing the street.  The locality is not characterised by battleaxe form of subdivision or housing development, although it appears historically there are two battleaxe lots south-east of the subject land on Aristride Avenue that face onto public open space.  These battleaxe lots appear to be part of the original subdivision of the locality and are more of an anomaly in rather than characteristic of the locality.

  7. In relation to the irregular lot shape the respondent asserts that the creation of an irregular lot shape is contrary to the requirements of OP 2.2 cl 4.3.1 which states:

    4.3.1 Single residential lots are square or rectangular in shape, with preferably a greater depth than width to maximise space for outdoor living, gardens and trees, privacy, amenity and street frontage.  WAPC will consider lot shapes, having regard to effective lot area, existing and prevailing lot configurations, site circumstances, solar access, streetscape, retention of existing dwellings and retention of existing mature trees.

  8. They say the respondent (and therefore the Tribunal standing in the shoes of the respondent) is to have regard to the 'effective lot area' and irregular shape of the lot when it considers exercising the discretion required to approve a subdivided lot with a reduced minimum and average lot size particularly where the resultant lot is of irregular shape with an effective lot area that is not commensurate with the R20 coding of the site. 

  9. OP 2.2 adopts the R-Codes definition of 'effective lot area' being 'that part of the lot that is capable of development and excludes any vehicle or pedestrian access legs and associated truncations' which the respondent asserts means that the effective lot area in this case only includes the almost rectangular portion of the lot at the rear with an area of 234m2, and is 'akin to an R35 subdivision in an R20 coded locality'.[12]  For clarity, the R-Codes identify a minimum lot size of 220m2 and an average lot size of 260m2 for R35 coded land.

    [12] RASIFC dated and filed 15 May 2025, para 80.

  10. The respondent also contends that the designation of the 50m2 access leg shown as a common property lot to allow for a gate to access the dwelling on Lot 1 at grade has been done to circumvent the lot size requirements for battleaxe subdivision. 

  11. The R-Codes Volume 1 establishes a separate metric for 'battleaxe lots', recognising the need for larger minimum lot sizes to accommodate a suitably sized 'effective lot area' along with space for a vehicle driveway and manoeuvrability.  This is reinforced by clause 4.5.5 of OP 2.2, which provides further that subdivision approval for battleaxe lots should not be granted based on a reduction to the minimum or average lot sizes.

  1. I am persuaded by the position of the respondent and find that the use of discretion to reduce minimum and average lot sizes to create such a compromised subdivision outcome is, in my view, contrary to orderly and proper planning. 

  2. This is particularly so where there is an option to subdivide this land in a manner that does not result in such a constrained Lot 2, inconsistent with orderly and proper planning.  In that regard, the respondent's suggestion that the lot could be more appropriately subdivided and developed in a side-by-side configuration indicates that the respondent is not opposed to the subject land being appropriately subdivided as they have offered one solution that may be helpful in dealing with the topography of the site.

  3. In regard to the proposed subdivision resulting in the creation of an irregular shape lot, I am convinced by the argument of the respondent that 99m2 of the available 333m2 for the rear proposed Lot 2 is taken up in the vehicular access leg results in an effective lot area for development of the rear dwelling of only 234m2.  This effective lot area is significantly smaller than what is contemplated by the R20 coding to allow for the form of development envisaged for this locality.  Lot 2 is then further constrained by the topography of the site.

  4. Rather than being developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed, the respondent contends and I find that the future development of proposed Lot 2 is likely to be constrained by its proposed effective lot area, configuration and its existing topography, resulting in a considerably smaller dwelling form than the established built form and character of the locality.

  5. It is acknowledged by both parties that the respondent made a suggestion that a side-by-side subdivision could be an acceptable outcome in this situation, given the significant slope on the subject land.  I accept that in that case, the development outcome could result in a second dwelling facing and having direct access off Aristride Avenue rather than traversing the common property driveway and that this is considered by the respondent and the City of Joondalup as a preferrable outcome.

  6. I do acknowledge that this is not a preferred outcome for the applicant who appears to be seeking to subdivide the subject land with as little modification to the existing dwelling as possible.  It is however the view of the respondent that this is an achievable outcome and a superior planning outcome in accordance with the planning framework than that proposed by the applicant.

  7. I am convinced by the respondent's assertions that the unusual limitation of the site resulting from the excessive slope over the land is exacerbated rather than assisted by the proposed subdivision lot configuration. 

  8. I am of the view that resultant effective lot area of proposed Lot 2 and its developability is hampered by the slope of the land particularly as the strongest gradient is located over the shortest distance being from the rear of the existing dwelling to the rear boundary of the subject land.  The respondent points out that '[t]he maximum slope between the rear boundary and the rear of the existing dwelling is approximately 3 metres over a length of 15.8 metres'.[13]

    [13] RASIFC, para 12(f).

  9. I am persuaded by the respondent and the evidence of Mr McCluggage that the proposed development does not meet the criteria for the exercise of discretion being that the subdivision allows for the subject 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. 

  1. achieve specific objectives of the local planning framework

  1. Mr Moussalli has said that he rejects the respondent's position that contrary to the planning framework, the proposed subdivision results in an irregular shaped lot by virtue of the elongated truncation but provides no elaboration for this position other than to reiterate the reason for the common property and that the unusual shape will assist in accommodating a vehicle turntable to address vehicle manoeuvrability and vehicles entering Aristride Avenue in a forward gear.

  2. The respondent goes on to contend that the proposed subdivision is not consistent with orderly and proper planning and is objectionable because the irregular shape and layout of proposed Lot 2 results in an effective lot area that is inconsistent with the R20 coding of the subject land and indeed is commensurate with an R35 coding. 

  3. The respondent asserts that the irregular shape and layout of the proposed Lot 2 has resulted from the applicant's aim to retain as much of the existing dwelling as possible and more so, an attempt to circumvent the R-Codes requirements for battleaxe subdivision which would require a minimum lot area of 450m2, significantly larger than that indicated by the proposed subdivision.

  4. Mr Moussalli argues that the purpose of the common property is to achieve access to the existing dwelling into the future, so that should he become wheelchair bound he can access the existing dwelling at grade through the gate from the common property instead of having to create access from the garage.  Mr Moussalli has provided no evidence that he is likely to be wheelchair bound in the future or that this access is necessary. 

  5. The relevance of this is in relation to whether this subdivision could reasonably be considered as a survey strata subdivision or alternatively, whether it should be considered an undersized battleaxe subdivision.  An undersized battleaxe subdivision they say would otherwise also not likely be approved by the respondent due to the level of discretion required to be exercised.  The respondent while having concerns, has acknowledged that the proposal under review is a survey strata subdivision with the common property lot.

  6. Mr Moussalli has provided no medical or supporting evidence to support his wish to secure an opportunity for at grade access from the common property lot to the existing dwelling.

  7. The Tribunal accepts the evidence of Mr McCluggage that the effective lot size coupled with the slope and lot shape configuration of Lot 2 result in a lot configuration that is compromised and difficult to readily develop in a manner consistent with housing in the locality.  He asserts that the resultant effective lot area is more akin to lot sizes attributed to R35 coding under the R-Codes would result in housing form that is at odds with the character of housing in the locality.  In this regard, he says, it is inconsistent with the local planning framework and inconsistent with orderly and proper planning.

  8. Mr McCluggage draws the Tribunal's attention to De Abreu v Western Australian Planning Commission [2019] WASAT 57 (De Abreu) at [112], where the Tribunal found that:

    112The desire of the owner to subdivide his or her block does not, in the Tribunal's view, qualify as 'allow[ing] land to be developed with housing of the same type and form as land in the vicinity which would not otherwise be able to be developed'. (Original emphasis)

  9. Mr McCluggage says that in his opinion, from a planning perspective, the applicant's personal circumstances or preferences are not a relevant planning consideration when determining whether the subject land is otherwise able to be developed as is stated in the criteria.

  10. Similar to this case, DeAbreu considers whether the proposed subdivision 'allows 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' (Tribunal emphasis).  Also similar to this case, De Abreu is a situation where the subject land as it stands is capable of being developed.  In this case, the subject land is able to be subdivided and developed with two dwellings as evidenced by the respondent offering an alternative configuration.  For this reason, and as provided for in De Abreu, the proposed subdivision does not meet the criteria of 'allow[ing] land to be developed with housing of the same type and form as land in the vicinity which would not otherwise be able to be developed'.[14]

    [14] De Abreu [124].

  11. I am persuaded by the arguments of the respondent and the evidence of Mr McCluggage that the proposed subdivision does not allow development of the subject land whereby the subject land would not otherwise be able to be developed with housing of the same type and form as that in the locality. 

  12. Mr Moussalli has not identified any specific objectives of the local planning framework that are achieved by the proposed subdivision. 

  13. Mr McCluggage is of the view that LPS 3 and the LP Strategy 'do not include more specific objectives targeted at facilitating variations to the minimum or average lot sizes in this locality' than providing for subdivision and development at R20 standards under the R-Codes. 

  14. While the local planning framework identifies more specific objectives targeted at increasing density of development in the City Centre and strategically appropriate locations such as around activity centres and train stations and there are strategic objectives in the local planning framework through the 10 HOAs for higher residential density, the local planning framework specifically allows for lower density residential areas, such as this locality, to be retained to achieve housing diversity.

  15. I find that I am convinced by the evidence before me that approval of the proposed subdivision would not achieve any specific objectives of the local planning framework.

Whether approval of the subdivision would be consistent with the principles of orderly and proper planning, and is not objectionable

  1. As articulated in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission at [24],[15] Barker J held that while the policy guides the exercise of planning discretion, it does not replace the discretion in the sense that it is to be inflexibly applied.

    [15] Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 [24].

  2. His Honour said that:

    … the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application[.]

  3. In addition, as stated by Pritchard J in Marshall at [182]:[16]

    … If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself grounded in planning law or principle[.]

    [16] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [182].

  4. The respondent asserts that the proposed subdivision is inconsistent with orderly and proper planning and is objectionable for three reasons.

  5. Firstly, because the irregular shape and layout of proposed Lot 2 results in an effective lot area that is inconsistent with the R20 coding of the subject land.  They say that the longstanding principle stated in cl 4.3.2 of OP 2.2 that the shape and layout of residential lot should generally be square or rectangular, is not achieved by the irregular shape of proposed Lot 2.  This results in 99m2 of the 333m2 proposed Lot 2 being unusable other than for pedestrian and vehicular access and the remaining effective lot area being limited to only 234m2 being commensurate with R35 rather than R20 lot sizes.

  6. Secondly, the respondent says that the irregular lot size seeks to circumvent the requirements for battleaxe subdivision.  While they accept that the proposed Lot 2 does not meets the technical definition of battleaxe lot because of the inclusion of the common property lot, they also say contend that the sole purpose of including the proposed common property portion is so that the Lot 2 does not have to meet the definition of battleaxe lot (which has greater minimum site area requirements) that could not be achieved in the proposed configuration.[17]  The respondent asserts that should the proposed subdivision be assessed as a battleaxe lot with the common property forming part of Lot 2, it would require:

    a)A 48% variation to the minimum site area would be required as the access leg would be excluded from the calculation on the basis that it would contribute 33.1% of the required minimum site area;

    b)If the access leg were to be included in the calculation even though it exceeds 20% of the minimum site area required, this would require a 14.9% variation to the minimum site area required; and

    c)A site area less than the minimum site area for a rear battleaxe lot in an R40 R35 subdivision (being a minimum of 395m2).[18]

    [17] RASIFC, para 83 explains that '[t]his is because:

    [18] RASIFC, para 84

  7. Thirdly, the respondent says that the minimum lot size should not be lightly departed from without a cogent reason for so departing.  The sole reason for the departure, from the view of the respondent, is the applicant's wish to retain the existing dwelling in its current or a slightly modified form.  The respondent contends that the retention of the dwelling, which is not required from a planning perspective, is not sufficient justification to warrant the exercise of discretion in this case.

  8. Mr Moussalli rejects the respondent's position and argues that the common property is required and a gate to Lot 1 for access is required because he has had a kidney transplant and expects that that could fail at any time.  He says that this could result in the need for wheelchair access at the level of the dwelling, the provision of a gate to Lot 1 from the common property means access to the existing dwelling does not have to be achieved through the garage.  For that reason, he asserts that the common property is valid. 

  9. He says that the respondent's conclusions are based on 'wrong facts'[19] but does not elaborate further than to discuss his reasons for including a gate to the existing dwelling on proposed Lot 1.  Mr Moussalli did not provide evidence of his health issues, but it can be argued that the application before the Tribunal is a survey strata application with common property for access to both Lots 1 and 2 and the decision of the Tribunal is unlikely to turn on the validity of that common property.

    [19] ASIF, page 16.

  10. Mr Moussalli says that preserving an existing building is seen as a positive and should be encouraged.  While I acknowledge that is Mr Moussalli's position, there is nothing in the relevant planning framework that gives incentives for retaining a dwelling just because it is an existing dwelling. 

  11. Generally, incentives are provided for the retention of dwellings from a heritage perspective or as part of a streetscape deemed worthy of preservation or protection for its unique characteristics or heritage value. 

  12. The existing dwellings on Aristride Avenue and in the locality have in the position of the respondent not been classified for preservation or protection within the local planning framework and I am therefore satisfied that retention of the existing dwelling does not warrant the exercise of discretion in this case.

  13. I find that I am persuaded by the respondent and the evidence of Mr McCluggage that the approval of the proposed subdivision in this case would not be consistent with orderly and proper planning.

Whether approval of the proposed subdivision would create an undesirable precedent

  1. For precedent to be a relevant factor, both tests as set out in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74] must be satisfied:

    (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.

  2. The respondent contends and McCluggage opines that the proposed subdivision is objectionable because it results in an irregular shaped lot with an effective lot area that is inconsistent with the R20 coding of the subject land.  

  3. The respondent also contends that the proposed subdivision is objectionable because the only other lot in the locality that has a site area less than 350m2 is No. 18B Warringah Close and that is appropriate as it is a corner lot that meets the criteria for the exercise of discretion as it is subdivided from a lot with frontage to more than one street. 

  4. They therefore say that '[t]he creation of a lot of this size would not be consistent or coordinated with the creation of residential lots in the locality and would not meet community expectations in relation to density of residential development.'[20]

    [20] RASIFC, para 90.

  5. I find I am persuaded by the respondent's position and Mr McCluggage's evidence that the proposed subdivision is objectionable.

  6. Mr Moussalli has identified other surrounding properties, including No. 4 and No. 4A Fairlight Rise, Kallaroo within the locality, which he considers sets a precedent for the proposed subdivision.  Mr McCluggage's evidence is that this subdivision exceeded the minimum and average site area requirements of the R-Codes.

  7. Mr Moussalli contends that the approval of the proposed subdivision would not set a precedent as '[t]here are not a lot of blocks where the block is on a steep hill (5m from street to top), and where the owners have fully utilised the top part.  It is impracticable'.  He says that in the Applicant's Written Deputation[21] Attachment A7 shows a map with 32 lots (map actually indicates 33 lots) identified by the respondent as being at risk of being a precedent, he asserts that an aerial view identified that none were subdividable.  He did however not adduce any further evidence of his calculations in arriving at this conclusion.

    [21] Respondent's s 24 Bundle: Tab 3 pages 33 - 45.

  8. Mr McCluggage contends that the extent of undesirable precedent may be limited to lots with an existing rear yard with an area between 234m2 and 333m2 rather than the 350m2 contended by the respondent in their RASIFC.  He says his reasoning is that lots with an effective lot area of between 333m2 and 350m2 may be able to satisfy clause 4.2.4 (a) of OP 2.2. 

  9. Mr McCluggage told the Tribunal that he conducted a site view of 15 of the 33 lots originally identified by the respondent as having similar characteristics to the subject land.  He also reviewed the size of the rear yards of those 15 lots using the City's GIS mapping system Intramaps and attached individual aerial photographs of each of the 15 lots with dimensions and areas indicating rear lots between 236.9m2 and 363.9m2.[22]  Mr McCluggage says that at least 10 of the 15 lots identified would be indistinguishable from the proposed subdivision and all lots identified have existing dwellings. 

    [22] Witness Statement of Dan Philip McCluggage Attachment DM6 - Aerial Images of Properties in Surrounding Locality, pages 223- 230.

  10. Mr McCluggage contends and I find that the approval of the proposed subdivision would set a precedent for subdivision of at least those identified 10 lots within the locality.

Hardship

  1. The Tribunal may have consideration in a subdivision application in regard to claims of hardship as raised by the applicant as follows:[23]

    241.SAT to have regard to certain matters

    …

    (3)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 3 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.

    [23] PD Act, s 241(3).

  2. While Mr Moussalli sought to impress on the Tribunal that he is in poor health and that the Tribunal should have some regard to this in considering his application for subdivision approval, Mr Moussalli provided no written or witness evidence of his assertions to assist the Tribunal in determining that weight should indeed be given to his appeal for leniency in the exercise of discretion in this matter because of that contended hardship. 

  1. Mr McCluggage further see that the applicant's position is that the reason driving the current subdivision application configuration is principally their desire to remain living in the existing house, with the sale of proposed Lot 2 perceived by the applicant to be the only way to achieve this aim due to their personal health circumstances.[24]

    [24] Document 1, Applicant's Supplementary Bundle, pages 4 - 5.

  2. My finding in this regard is that the applicant has not provided evidence to the satisfaction of the Tribunal that hardship exists that would warrant the approval of this subdivision, and further, as stated in [94] above, I find that the exercise of discretion required to effect the approval of the proposed subdivision is not consistent with orderly and proper planning and would detrimentally affect the application of sound planning principles in this case.

Conclusion

  1. The purpose of the review in accordance with s 27(2) of the SAT Act is 'to produce the correct and preferable decision at the time of the decision upon the review'. The function of the Tribunal in regard to this matter is to consider the evidence before it and to form its own view as to whether the proposed subdivision should be approved having consideration of the relevant planning framework.

  2. For all the reasons above, the Tribunal concludes that the correct and preferable decision in the circumstances of this case, is that the proposed subdivision warrants refusal in the exercise of discretion and as such, the application for review is dismissed and the decision of the respondent dated 4 September 2024 is affirmed.

Orders

The Tribunal orders:

1.The decision of the Respondent is affirmed and the subdivision plan dated 28 April 2025 is refused.

2.The application for review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R Lavery, MEMBER

17 SEPTEMBER 2025



a) The common property provides no functional utility to Lot 1 as access to and from that lot is already provided by the existing garage and associated vehicle access to Aristride Avenue, which is unaffected by the Proposed Revised Subdivision; and
b) Access to and from the existing garage on Lot 1 via the proposed common property is impractical as the existing garage is only setback 4.6 metres from the south-western lot boundary of the subject land and is not compliant with manoeuvring requirements in AS2890.1.
Respondent's s 24 Bundle, Document 26 - AS2890.1 Figure 5.4 extract, page 379 and Document 27 - AS2890.1 Table B2 extract, page 380.

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0