Nguyen and Anor and Western Australian Planning Commission

Case •

[2005] WASAT 167

•

8 JULY 2005

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   NGUYEN & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 167

MEMBER:   MR P McNAB (MEMBER)

HEARD:   12 APRIL 2005

DELIVERED          :   8 JULY 2005

FILE NO/S:   RD 329 of 2005

BETWEEN:   VAN NHUNG NGUYEN

THI NAM VO
Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision approval - Dual coding of land - Approval denied on basis of planning instruments and policies restricting density bonus to cases where existing house retained - Proper interpretation of planning instruments and R Codes - Substantial part of existing house to be demolished - Whether existing house in fact retained - Development application not made available to decision­makers - Words and phrases: "existing house"; "retained"

Legislation:

Statement of Planning Policy No 3.1

Metropolitan Region Scheme
Residential Design Codes of Western Australia
Statement of Planning Policy No 1 ­ State Planning Framework
Town of Vincent Planning and Building Policy Manual
Town of Vincent Town Planning Scheme, cl 20(4)(c)(i)

Town Planning and Development Act 1928 (WA), s 5, s 26

Result:

  1. The application for review is dismissed

  2. The decision under review be affirmed

Category:    B

Representation:

Counsel:

Applicants:     Mr DJ Caddy (by leave)

Respondent:     Mr J Algeri

Solicitors:

Applicants:     N/A

Respondent:     N/A

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

Taylor v Town of Vincent [2004] WATPAT 149

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

  1. This is an application for a review by this Tribunal of a refusal by the Western Australian Planning Commission ("the respondent") to refuse consent to a proposal by the applicants to amalgamate two adjoining lots of land owned by them and thereafter to subdivide that land.  The applicants propose to demolish part of an existing house which straddles both lots and they also propose that the land be subdivided to create three survey‑strata lots.

  2. The respondent refused its consent on 12 January 2005 and the applicants sought a review by this Tribunal on 8 February 2005, in accordance with their rights under s 26 of the Town and Planning Development Act 1928 (WA).

The subject land

  1. The subject land is more particularly described as Lots 39 and 193 shown on Plan 3784 and Deposited Plan 30270, being the whole of the land comprised in Certificate of Title Volume 2224 Folio 705.  The street address of the subject land, as shown on the applicants' plans, is No 14 Blake Street, North Perth.

  2. The following description of the subject land is largely drawn from the applicants' case.  The respondent does not dispute any of these material facts.

    1.The subject land is rectangular in shape and has a street frontage at both its southern frontage (Blake Street) and its northern frontage (Redfern Street).  The frontage to both these streets measures 18.29 metres whilst the subject land is 45.61 metres deep.

    2.The subject land comprises in area some 834 square metres and is occupied by an existing single dwelling, which is lived in by the applicants.  The dwelling has an aspect to both street frontages and accesses both street frontages by way of a driveway and crossover to the respective streets.  The subject land at its Blake Street frontage sits at a level of approximately 47 metres above sea level.  The land at its Redfern Street frontage maintains an approximate level of 44 metres above sea level.  Between the Blake Street and Redfern Street frontages over a distance of 45.61 metres, being the length of the lot, the land falls through a height of about 3.4 metres.

    3.It is due to this fall across the subject land that the house on the subject land presents as a single storey façade to the Blake Street frontage and a two‑storey façade to the Redfern Street frontage.

    4.It would appear that the original house was a single storey construction fronting Redfern Street and that more lately a more substantial addition has resulted in the two storey portion of the house which now has an aspect to Redfern Street.

  3. Following the survey-strata subdivision, proposed Lot 1 will have an area of 434 square metres, while proposed Lots 2 and 3 will each have an area of 200 square metres.  Proposed Lot 1 will comprise the northern half of the subject land (facing Redfern Street) and proposed Lots 2 and 3 will comprise the southern half of the subject land (facing Blake Street).

  4. It is proposed that vehicle access to proposed Lot 1 would be from Redfern Street, while vehicle access to proposed Lots 2 and 3 would be from Blake Street.  After partial demolition of the existing house (that part facing Blake Street) it is proposed that the land will be redeveloped and used for "grouped dwelling" purposes.  However, no development application has yet been lodged with the local government, the Town of Vincent.

The planning framework

  1. It is not in dispute that subdivision, planning and development control of the subject land is governed by some seven planning or policy instruments.  These are: the Metropolitan Region Scheme; the Town of Vincent Town Planning Scheme No 1 ("TPS 1"); the "North Perth Precinct – Scheme Map 8" of the Town of Vincent (Policy No 3.1.8); the "Knutsford Locality Plan 18" of the Town of Vincent (Policy No 3.3.18); the respondent's Statement of Planning Policy No 1 – State Planning Framework and certain policies referred to therein, namely Policy DC 1.3 (Strata Titles) and Policy DC 2.2 (Residential Subdivision).  In addition, it will be necessary to refer to the residential design codes, namely the Statement of Planning Policy No 3.1 Residential Design Codes of Western Australia ("the R Codes").

  2. The following summary of the most relevant instruments (so far as they are applicable), as applied to the relevant facts, is largely drawn from the respondent's case.  However, this planning framework summary is common ground between the parties.

    1.The subject land is zoned "Residential R30/40" (ie, a "dual coding") and falls within the "North Perth Precinct" under TPS 1.

    2.Clause 20(4)(c)(i) of TPS 1 provides as follows in regard to the North Perth Precinct:

    "Dual Coding: Within the area coded R30/40, development will only be permitted to R40 standards where the existing house is retained and where criteria specified in the precinct document is satisfied."  (Emphasis added.)

    3.Clause 3.1.1 and Table 1 of the R Codes impose a minimum site area of 270 square metres and an average site area of 300 square metres for an R30 coding.  The proposal creates lots that do not comply with these minimums and average lot size requirements under the R30 coding.

    4.Clause 3.1.1 and Table 1 of the R Codes impose a minimum site area of 200 square metres and an average site area of 220 square metres for an R40 coding.  The applicants' proposal is consistent with both the minimum and average lot size requirements under an R40 coding.

    5.Therefore, on the face of it, strata-subdivision of the subject land is primarily dependent upon the application of the higher R40 coding or a departure from the R Codes.

    6.As outlined above, a determination under the R40 standard may only be made where the existing house is to be retained.  (As appears below, approximately 25% of the existing house is proposed to be demolished.)  In addition, for the R40 standard to apply, the criteria specified in the precinct document would have to be satisfied.

    7.The relevant precinct document is the "North Perth Precinct – Scheme Map 8" (Policy No 3.1.8).  This document is contained in the Town of Vincent Planning and Building Policy Manual, which contains policies adopted by the Town pursuant to cl 47 of TPS 1.

    8.Clause 1 of the this precinct document specifies that:

    "All residential development is to comply with the Policies relating to Residential Design Guidelines and Residential Development, and [cl 20 of TPS 1]."

    9.The "Policies relating to Residential Design Guidelines" referred to above include Policy No 3.3.18, "Knutsford – Locality Plan 18" (which is also contained in the Town of Vincent Planning and Building Policy Manual).

    10.The relevant sections of this Knutsford policy document are as follows:

    "Clause 2 – Desired future character

    The retention and/or restoration of established houses which are indicative of the era in which the Locality was developed and generally contribute to its existing character, will be encouraged.  An increase in housing density for new infill development will be permitted, where certain criteria can be met.

    New contemporary developments are encouraged provided that the design responds to the established character.  The selected use of elements such as roof pitch, building materials and wall and eaves height can be used to augment the elements of particular importance, building location an orientation.

    Buildings are to be setback from all boundaries in generously landscaped – including the use of water conservation measures and appropriate local and native plant species – gardens.  Additionally, priority will be given to ensuring that new infill and group housing developments do not result in a loss of privacy or amenity for existing residents.  Infill development in the form of splitting the wider frontage lots down the middle is encouraged.

    Generally, any redevelopment is to respect and maintain the existing character of the area.  Front setback areas are to be landscaped and, preferably, devoid of parking spaces.  Where available, on-site parking is to be accessed from a right-of-way.

    Clause 3(iv) – Density

    In areas of split coding, where an established dwelling which contributes to the identifiable character of the Knutsford Locality is to be retained and/or restored, infill development to the rear of the lot may be permitted at the standards consistent with a higher density code subject to the development meeting the following criteria:

    (a)no unreasonable significant adverse impact on adjacent residences in terms of privacy and amenity;

    (b)no unreasonable loss of healthy, mature trees; and

    (c)the design responds to the design and character of the existing dwelling on the lot and the streetscape in general". (Emphasis added).

    12.Statement of Planning Policy No 1 – State Planning Framework ("SPP No 1") is relevant to the present review. (Statements of Planning Policy are prepared by the respondent as statutory policies under the provisions of s 5AA of the Town and Planning Development Act 1928.)

    13.SPP No 1 includes an extensive list of planning policies and strategies endorsed by the respondent that are to be used in making planning decisions.  The respondent and local governments (and generally on review, this Tribunal as well) must have due regard to these provisions, including policies and strategies, in preparing town planning schemes and when making decisions on planning matters, including subdivisions.

    14.SPP No 1 includes reference to Policy DC 1.3 (Strata Titles).  (Development Control Policies, such as this one, are operational policies that have been endorsed by the respondent to guide its decision-making on subdivision and development applications.  They are also relevant to the Tribunal's task on review.)

    15.Relevant provisions contained in Policy DC 1.3 (Strata Titles) include the following:

    "Clause 3.2.2:

    The [respondent] will consider all strata subdivision having regard to this policy and to the advice received from the relevant local government town planning scheme and that the lots proposed will be capable of development."

    16.In the case of the creation of vacant strata subdivision or survey-strata lots, the respondent (and other decision-makers) must be satisfied as to a number of matters:

    "(a)The proposed lot or lots will not result in any conflict with any statutory requirement or provision of a town planning scheme, including residential densities applicable to the land involved.

    (b)The proposed lot or lots are of such a shape and size as to permit development in accordance with appropriate development standards.

    (c)The proposed lot or lots will have adequate access and will be able to accommodate car parking in accordance with relevant standards."

    17.Included in Policy DC 2.2 (Residential Subdivision) are the following provisions, which draw attention to the importance of compliance with the R Codes in assessing applications for residential subdivision (including survey-strata subdivisions):

    "Clause 3.1.3

    All new residential lots shall, in addition to compliance with the general requirements for subdivision of land … be capable of development in accordance with the Codes assigned to it by local town planning schemes, together with any local variations that may apply.

    Clause 3.2.1

    Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land."

  3. It is readily apparent from this survey of the applicable planning instruments and policies that there is presented to the potential developer (and any regulatory decision-maker) an interlocking grid of controls with particular emphasis on the R Codes standards, which in themselves are relatively prescriptive and tolerably clear.  The applicants however, as appears below, advance a contrary interpretation of them.

The refusal by the respondent

  1. The respondent consulted with the Town of Vincent who opposed the proposed survey-strata application for the following reasons:

    1.non-compliance with cl 20(4)(c)(i) of TPS 1 on the basis that a significant portion of the existing dwelling house was proposed to be demolished and therefore development (ie, subdivision) was not permitted to R40 standards.

    2.non-compliance with the R Codes, by reason of a significant variation to the minimum site area requirements under the R30 Code applicable to the property.

    3.the approval of the proposed subdivision "could create an undesirable precedent for subdivision of lots with some of the sizes within the area [in cases] where a significant portion of the existing house [was proposed to be] demolished".

  2. The reasons for the refusal given by the respondent are as follows:

    1.The proposed strata scheme does not comply with the respondent's Policy DC 1.3 by reason that the lot sizes proposed are less than the minimum and average lot size required to meet the provisions of the R30 coding of the subject land.

    2.The proposed survey-strata subdivision does not comply with cl 20(4)(c)(i) of TPS 1, in that a significant portion of the existing house is to be demolished and therefore subdivision to the density permitted under the R40 coding cannot be considered.

    3.Approval to the strata title application would set an undesirable precedent for the further subdivision of surrounding lots.

    4.The proposed survey-strata subdivision is not consistent with orderly and proper planning.

The applicants' case

  1. It will be recalled that the applicable clause of TPS 1 (cl 20(4)(c)(i)) permits development to R40 standards in this case "where the existing house is retained".  It is common ground that the interpretation and application of this clause is crucial to this review.  On its face, the applicants propose a strata-subdivision with site areas that are only permitted at an R40 coding.  If so, the "existing house [must be] retained", unless it is permissible to depart from the R Codes generally or they can be appropriately read down.  This issue of a possible departure from the R Codes is a matter that will be returned to below.

  2. The essential thrust of the applicants' case is that the respondent had wrongly given a "literal" reading to the relevant limitation (ie, the apparently controlling phrase "where the existing house is retained"), as in the broader context of the relevant planning instruments (and particularly the local planning policies; see, eg, that pertaining to Knutsford) the proposed subdivision and development (including the retention of a significant part of the house) satisfied the intent of the relevant standards and policies, or otherwise had merit.

  3. The applicants appear to assume, correctly in the Tribunal's view, that unless such an approach is open to the Tribunal the applicants' proposal must fail at the threshold as it appears to run directly counter to the clear stipulations imposed by cl 20(4)(c)(i).

The "existing house" issue

  1. A threshold question therefore arises as to the proper interpretation to be given to the controlling phase "where the existing house is retained".

  2. On the applicants' own description of the subject land in their evidence to the Tribunal there is but one "existing house", despite its twofold aspects.  This is also the description that appears on the relevant plans submitted to the Tribunal.  Originally, the applicants' grounds of appeal estimated that some 40 per cent of the existing house was to be removed, but a lower figure emerged at the hearing.  The applicants produced expert evidence – and such evidence was not contradicted – that only 26 per cent of the floor space of the existing structure was to be removed in the proposed demolition of the existing house.

  3. Assuming for the moment that actual departure from the R Codes is not possible, it will be necessary for the applicants to satisfy the Tribunal that the retention of 74 per cent of an existing house amounts to "retain[ing]" that existing house, on a proper construction of the clause.  The respondent itself appears to acknowledge something in that argument by its reference to "a significant portion of the existing house is to be demolished" (emphasis added).  Thus, it may be inferred that an insignificant portion of the house could be demolished or removed and the house could still be "retained" for the purposes of compliance with the relevant standard.  It is unnecessary to express any final view on this proposition.

  4. "Retained" is not relevantly defined in or elucidated by reference to any instrument or policy referred to above.  It is not a term of art and its ordinary plain meaning as an English word should be the starting point in ascertaining its meaning.  Ordinarily, to "retain" something means to keep it on or to preserve it (see the "Oxford English Dictionary Online" 2nd ed. 1989).  Similarly: "not [to] lose; continue to have … or [to] recognise; not [to] abolish, discard or alter … [to] hold fixed" (Moore, B, (ed) "Australian Oxford Dictionary" Oxford University Press, Victoria, 1999); and "to hold or keep in possession …[or] to keep in a fixed state or condition" (Webster's New World Dictionary, 1988).

  5. The Tribunal is not persuaded that the retention of less than three‑quarters of the existing house here can be said to be "retaining" that structure within the ordinary meaning of that expression.  It should be stressed, however, that neither a particular mathematical proportion of destruction or the fact of which end of a structure is to be demolished necessarily controls the essentially impressionistic judgment that needs to be made as to whether a structure has in fact been retained.

  6. Further, the Tribunal is not persuaded that there is any proper way in which the controlling phrase can be "read down", whether in a broader context of the totality of the relevant instruments, or otherwise.  It is also not to the point to talk about a "literal" interpretation of the phrase when the task of the decision-maker (including this Tribunal) is to give effect to the purpose of the clause by the application of its plain meaning, unless its context clearly indicates otherwise.

  7. The evident purpose of the clause which is expressed with sufficient clarity is, in effect, to give a developer a density bonus if an existing house is to be retained.  That purpose would be undermined if a density bonus were to be awarded where in fact an existing house was not retained.  As a matter of fact, the Tribunal has found that the existing house would not be retained under the proposal under review.

  1. Further, it is not to the point to speculate on the wisdom of the restriction (as it has been interpreted by the Tribunal above), or the character of the particular streetscape or precinct or the quality of the existing residence or the potential of the proposed development, as the applicants apparently wished to do.  Such matters are either essentially irrelevant to the proper interpretation of cl 20(4)(c)(i) or in any case relatively difficult to pursue without the basic foundational material such as a development application and appropriate plans and specifications.  Cf Taylor v Town of Vincent [2004] WATPAT 149 at [58].

  2. Neither party has suggested that TPS 1 or any other instrument in this case gives to this Tribunal a general discretion to depart generally from the R Codes' restrictions set out above.  And, even if such a provision were available the lack of basic foundational material already adverted to would make the applicants' task in this regard problematic, to say the least.

Conclusion

  1. It therefore follows that the application for review must be dismissed and the decision under review affirmed.

Orders

  1. The orders of the Tribunal are:

    1.The application for review be dismissed.

    2.The decision under review be affirmed.

    I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

    ___________________________________

    MR P McNAB, MEMBER

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

0

Cases Cited

0

Statutory Material Cited

7