MRF CIVIL PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2009] WASAT 181
•18 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MRF CIVIL PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 181
MEMBER: MS M CONNOR (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 SEPTEMBER 2009
FILE NO/S: DR 51 of 2009
BETWEEN: MRF CIVIL PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town Planning - Subdivision - Land coded R20 - Minimum site area requirements of the Codes not met - Whether subdivision capable of approval - Whether appropriate to depart from Residential Design Codes of Western Australia (2008) and other policies - Adverse planning precedent
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 4.4.3
Metropolitan Region Scheme
Planning and Development Act 2005(WA), s 25, s 135, s 136, s 138, s 138(2), s 241, s 241(1), s 251(1)
Residential Design Codes of Western Australia (2008), cl 6.1, cl 3(A3)(iv), cl 3.2.3
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The application for review is dismissed
The decision of the respondent is affirmed
Category: B
Representation:
Counsel:
Applicant: Mr S Bain (Acting as Agent)
Respondent: Mr J Bouwhuis (Acting as Agent)
Solicitors:
Applicant: SJB Town Planning & Urban Design (Town Planners)
Respondent: Western Australian Planning Commission
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (unreported, Appeal No 13 of 1988)
Boulter and City of Subiaco [2007] WASAT 71
Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117
Tah Land Pty Ltd and Western Australian Planning Commission [2009] WASC 196
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
MRF Civil Pty Ltd applied to the State Administrative Tribunal for review of the decision of the Western Australian Planning Commission refusing subdivision of Lot 40 Winship Avenue, Wanneroo into five survey strata lots ranging in size from 221 square metres to 232 square metres with a common property lot of 138 square metres.
Their land was coded R20 under the City of Wanneroo District Planning Scheme No 2. The proposed subdivision would result in the creation of lots that were between 48.88% and 50.88% of the average lots size prescribed by the R20 coding.
The principal issue for determination in this review was whether discretion should be exercised to approve a subdivision that departed from the application of the Residential Design Codes of Western Australia (2008) or any other applicable instrument which on their face would not support the subdivision.
The Tribunal followed Landpark Holding Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 which, amongst other things, determined that it was open to the Tribunal to approve a subdivision which involved allotments that are smaller than the minimum site area that corresponded to the residential density code that applied to the land for development purposes.
The Tribunal determined that there was no cogent and adequate reason in the circumstances of this case as to why the planning principles that found expression in the relevant planning policy should be departed from and the proposal approved. The application for review was dismissed and the decision of the respondent affirmed.
Introduction
MRF Civil Pty Ltd (applicant) made an application to the Western Australian Planning Commission (respondent or WAPC), on 26 September 2008, for approval to subdivide Lot 40 Winship Avenue, Wanneroo (subject land). The proposal envisaged subdividing the existing lot of 1261 square metres into five survey strata lots ranging in size from 221 square metres to 232 square metres with a common property lot of 138 square metres. The common property lot is intended for access and is 4 metres in width.
The respondent refused the application on 2 January 2009 for the following reasons:
1.The Commission is unable to approve the proposed subdivision as an approval would contravene Section 138(2) of the Planning and Development Act 2005.
Section 138(2) stipulates that subject to subsections (3), in giving its approval under Section 135 or 136, the Commission is to have 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.
The proposed subdivision conflicts with the provisions of the City of Wanneroo District Town Planning Scheme No. 2. In this regard the land is zoned Residential and coded R20.
The proposed subdivision would create five lots substantially below the minimum site area requirements of the Residential Design Codes (2008) as specified in Table 1 for areas coded R20. The proposed subdivision also does not comply with the average site area requirement.
2.The survey strata subdivision proposal is not afforded any of the circumstances contained in subsection (3) of Section 138 of the Planning and Development Act 2005 as:
3(a)An approval would be inconsistent with the Commission's Development Control Policy 2.2 Residential Subdivision;
3(b)Is not relevant to the subdivision proposal under evaluation;
3(c)In the opinion of the Commission the conflict with the provisions of City of Wanneroo District Planning Scheme No. 2 is substantial and an approval would be inconsistent with the general intent of that scheme;
3(d)The City of Wanneroo District Planning Scheme No. 2 does not include provisions permitting a variation that would remove the conflict;
3(e)The City of Wanneroo has recommended that the proposed subdivision be refused; and
3(f)Is not relevant to the subdivision proposal under evaluation.
3.Approval to the subdivision would set an undesirable precedent for further subdivision of surrounding lots which do not meet the average lot size requirements of the Residential Design Codes (2008).
The applicant, on 22 January 2009, made application under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.
Subject land and its context
The subject land is more particularly described as Lot 40 Winship Avenue, Wanneroo, being the land comprised in Certificate of Title Volume 336 Folio 37A. A locality plan showing the location of the subject land is attached as Attachment 1.
The site is relatively flat ranging from 39 metres AHD to 42 metres AHD. An existing dwelling, surrounded by vegetation, is situated approximately in the centre of the subject land. A 1.8 metre high brick wall is located along the front boundary with a gate providing vehicular and pedestrian access.
Development surrounding the subject land predominantly comprises modest quality single residences generally between 35 and 40 years of age. Wanneroo Road is located approximately 30 metres east of the subject land and is accessible via Winship Avenue into Hart Court.
The Wanneroo Town Centre is located to the south (south of Church Street) and east (east of Wanneroo Road) and provides a variety of commercial businesses including fast food outlets, a shopping centre and numerous businesses and offices.
Planning framework
Subdivision in this State is, under the PD Act exclusively controlled by the respondent (see Boulter and City of Subiaco [2007] WASAT 71 at [61]).
Section 138(2) of the (PD Act) provides as follows:
Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provision of any local planning scheme that applies to the land under consideration and is not to give approval that conflicts with the provisions of a local planning scheme.
The subject land is zoned 'Urban' in the Metropolitan Region Scheme (MRS) and 'Residential' with a density coding of R20 under the City of Wanneroo District Planning Scheme No 2 (DPS 2 or Scheme). Clause 4.4.3 of DPS 2 states that:
Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Design Codes shall conform to the provisions of those Codes.
Table 1 - General site requirements of the Residential Design Codes of Western Australia 2008 (Codes) specifies in column 3 that the minimum site area per dwelling required for a single house or grouped dwelling for a lot coded R20 is a minimum of 440 square metres and an average of 500 square metres. However, cl 6.1.3(A3)(iv) of the Codes provides for a concession 'in the case of grouped dwellings in areas coded R 20 as at 4 October 2002, the average site area will be 450 square metres'. According to the respondent, which was not disputed by the applicant, the proposed subdivision would result in the creation of lots that are between 48.88% and 50.88% of the average lot size prescribed by the Codes.
The Tribunal in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark) found that as development does not include subdivision and the relevant provision of the Scheme relates to the 'development of land', a subdivision that does not conform with the minimum site area requirements of the Codes does not 'conflict' with the provision of the local Scheme. The Tribunal, at [26], observed that 'the Codes contemplate that the Commission and the Tribunal on review may approve a subdivision which involves allotments that are smaller than the minimum site area that corresponds to the residential density code that applies to the land for development purposes'. The Tribunal has adopted this approach to the application of s 138 of the PD Act.
Additionally, the Tribunal has had regard to the following relevant planning documents that have been prepared by the respondent relating to growth management and residential subdivision in the metropolitan area:
•State Planning Policy - State Planning Framework Policy (Variation 2)
•State Planning Policy 3 - Urban Growth and Settlement (SPP 3);
•Network City (2006) (Draft SPP);
•Liveable Neighbourhoods; and
•Development Control Policy DC 2.2 Residential Subdivision (DC2.2)
A further document, referred to by the applicant, that the Tribunal has had regard to is the City of Wanneroo's Local Housing Strategy (LHS).
Issues
The principal issue therefore to be considered is as follows. Whether the correct and preferable decision is to approve the subdivision, having regard to the discretion given to the Tribunal under the planning framework just outlined, and depart from the application of the Codes or any other applicable instrument which on their face would not support the subdivision.
The applicant relied on the findings of Landpark (see para 17 above) and argued that based on the substantial merits of the case a subdivision that resulted in the creation of lots that would equate to an R40 coding could be supported. The applicant advanced the following argument in support of the proposed subdivision:
•The subject land was purchased based on information that other lots within the locality were been recoded from R20 to R40 by way of an amendment to DPS 2. The applicant sought an amendment to the Scheme but to date an amendment has not been initiated by the City of Wanneroo. The applicant submitted that it is open to the City of Wanneroo, WAPC and to the Minister to initiate and finalise the scheme amendment and the fact that rezoning has not been initiated is not a relevant consideration, citing Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522, and Water Corporation v Western Australian Planning Commission [2004]WATPAT 78.
•DC2.2 is only a policy and should not be implemented inflexibly;
•A precedent has been established by the City of Wanneroo 'spot' rezoning lots within the locality.
•SPP 3, Network City and Liveable Neighbourhoods advocate higher densities in locations accessible to transport, services and activity corridors and in close proximity to major employment and commercial centres. The applicant considers that the existing coding for the area is inappropriate given its location to Wanneroo Road and the Wanneroo Town Centre and that an R40 coding would be more appropriate. The applicant submitted that the proposed subdivision reflects the principles advocated by the respondent's growth management strategies.
•Given the age and condition of housing, the locality is considered suitable for redevelopment/subdivision. An R40 coding would facilitate redevelopment, which would redefine the character and amenity of the area.
•The proposed subdivision is consistent with the second objective of the 'Residential' zone as contained in DPS 2 and satisfies the principles of Liveable Neighbourhoods in that it will provide for medium density grouped housing and will increase the choice of housing available.
The applicant was also at pains to inform the Tribunal of the rejected rezoning application and how the decision-makers had made an erroneous decision not to support an amendment to DPS 2 to recode the subject land to R40. It is not appropriate for the Tribunal to offer any comments in relation to this aspect of the applicant's evidence as the PD Act does not confer any powers on the Tribunal to review decisions relating to amending local planning schemes. Further, the fact that the applicant purchased the land on the basis that other lots in the area were being recoded is an irrelevant consideration in the determination of this matter.
The Tribunal's considerations
The planning framework that has been established to guide decision‑making in relation to residential development and associated matters is comprehensive and encompasses both strategic and statutory instruments. This framework consists of broad strategic policies that establish general principles and considerations to be applied to planning for urban growth and settlement in the metropolitan region which inform the more detailed planning that takes account of the regional and local context and reflects local needs and aspirations.
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.
SSP 3 is an approved statement of planning policy prepared under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) and continues in force as a State planning policy under the PD Act s 25. Under s 241 of the PD Act, the Tribunal is required to have due regard to any State planning policy which may affect the subject matter of an application for review. The overall aim of SPP 3 is 'to facilitate sustainable patterns of urban growth and settlement by setting out the requirements of sustainable settlement and communities and the broad policy in accommodating growth and change'. SPP 3 states that future metropolitan growth be planning and managed in accordance with Network City, which promotes 'locating higher residential densities in locations accessible to transport and services, such as in and around … activity corridors …' It also endorses the principles set out in Liveable Neighbourhoods, which includes the need to provide 'a variety of lot sizes and housing types to cater for the diverse housing needs of the community at a density that can ultimately support the provision of local services'.
As identified in Tah Land Pty Ltd and Western Australian Planning Commission [2009] WASC 196 at [56], Network City is one of the 'relevant planning considerations' to which the Tribunal is required by s 241(1) of the PD Act to have 'due regard'. A draft Statement of Planning PolicyNetwork City (draft SPP) has been prepared to confirm the status of the Network City Framework (September 2004), the Network City Action Plan (September 2004) and the document Community Planning Strategy for Perth and Peel (September 2004) as the metropolitan strategy for Perth and Peel, to set out the ways in which the strategy will be used by the WAPC and to explain the WAPC's policy making program. It is clear from the draft SPP that Network City establishes the fundamental directions for Perth and Peel and is intended to be 'the foundation for active policy and plan making, not a blueprint or master plan simply to be carried out: cl 6.3 of the draft SPP. Further, the Network City spatial framework (Figure 1) is in diagrammatic form and graphically indicates how the principles of Network City might be applied. Figure 1 identifies the Wanneroo Town Centre as an 'activity centre' on an 'activity corridor', namely Wanneroo Road, indicating that future communities will be designed around networks and centres.
The relevance of Liveable Neighbourhoods in this case is minimal given that Liveable Neighbourhoods 'is an operational policy for the design and assessment of structure plans (regional, district and local) and subdivision for new urban (predominantly residential) areas in the metropolitan area and country centres, on 'greenfield' and large urban infill sites. Clearly, the subject land does not fall with these specified parameters. However, it is noted that Liveable Neighbourhoods supports the principles of achieving density targets and lot diversity, particularly around activity centres and public transport nodes.
The planning instruments that the respondent relies on (the Codes, DC2.2 and DPS2) 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 SSP 3 and Network City. 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 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 DC2.2 as it is a provision of State Planning Policy 1 State Planning Framework Policy (Variation 2). DC2.2 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.
Barker J held in Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24], 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. 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.
The Tribunal is not persuaded by the applicant's assertion that DPS 2 is not reflective of the vision, values, principles and objectives advocated by SPP 3 and Network City as DPS 2 designates the existing Wanneroo Town Centre and significant land holdings surrounding the town centre as 'Centre' zone. This zoning enables the preparation of an agreed structure plan providing for the coordinated planning and development of this 'activity centre'. As the permissibility of uses is to be determined by the agreed structure plan, the opportunity is available to achieve higher residential densities within the activity centre as advocated by SPP 3 and Network City. Further, the LHS supports the increase of residential density within 800 metres of town centres, and one would ordinarily expect that the principles set out in this document would find expression in any contemplated agreed structure plan for the town centre. The fact that the residential zoned land to the north of Church Street is not included in the 'Centre' zone does not translate into the scheme being inconsistent with SPP3 or Network City.
Furthermore, the recoding of three adjoining lots in Clarkside Court, Wanneroo to R40 does not further the applicant's arguments as the circumstances relating to those lots are not identical to the subject land and nor does it imply support for higher coding in the general locality.
The Tribunal finds that there is no cogent and adequate reason, in the circumstances of this case, as to why the planning principles that find expression in DPS 2 and DC 2.2 should be departed from and the proposal approved.
Further, the issue of adverse planning precedent was raised by the respondent. The applicant cited Aspen Pty Ltd v State Planning Commission (unreported, Appeal No 13 of 1988) at [10], where the former Town Planning Appeal Tribunal found that precedent is not a 'stand alone' argument for refusing an application.
The circumstances in which precedent is a relevant consideration in a planning assessment has been detailed in Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 at [74]. In this case, each of the criteria is met. The proposed subdivision, for the reasons expressed above, is 'objectionable' and given the lot sizes in the locality, there is more than a mere chance or possibility that there may be later undistinguishable applications. Therefore, adverse planning precedent is a relevant consideration. Further subdivision of surrounding lots that did not meet the site requirements of the R20 coding would be tantamount to a recoding of the locality without the benefit of the consultative process necessary to bring about an amendment. In the circumstances of this case, the consideration of adverse planning precedent also warrants refusal of the application.
Orders
For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
Attachment 1
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