Nicholls v Western Australian Planning Commission - [2005] WASAT 40

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928

CITATION: NICHOLLS and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 40

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 16 MARCH 2005 (WRITTEN SUBMISSIONS 18 MARCH 2005)

DELIVERED : 30 MARCH 2005

FILE NO/S: RD 306 of 2004

BETWEEN: PL NICHOLLS
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision application Draft amendment to town planning scheme Requirement for prior comprehensive planning of area capable of significant increase in density Coty principle Seriouslyentertained planning proposal Applicable principles Weight Whether application premature Adverse planning precedent Applicable criteria Exercise of planning discretion

Legislation:

Environmental Planning and Assessment Act 1979 (NSW) s 4(1)("development"), s 76A and s 79C(1)(a)(ii)

Town Planning and Development Act 1928 (WA) s 7(1), s 7(2), s 7(3), s 20(1), s 20(5), s 24(3) and s 61(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr Sri Ramanathan (Agent)
Respondent: Mr C Bydder and Ms D Quinlan

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

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

Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported)
Albury-Wodonga Development Corporation v Fitzpatrick [1982] VR 165
Architects Haywood and Bakker Pty Ltd v North City Council [2000] NSWLEC 138
Aspen Pty Ltd v State Planning Commission (WATPAT, No 13 of 1988, unreported)
Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198
Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Davfast Pty Ltd v Ballina Shire Council [2000] NSWLEC 128
Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; 74 LGRA 68
Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193
Goldin v Minister for Transport (2002) 121 LGERA 101
Marford Nominees Pty Ltd v State Planning Commission (WATPAT, No 11 of 1994, 23 February 1995, unreported)
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Mathers v North Sydney Council [2002] NSWLEC 84
Mills v District Council of Willunga (1985) 61 LGRA 29
Nattrass v City of Perth [2001] WATPAT 2
Park v Warringah Shire Council (1970) 20 LGRA 312
Parramatta City Council v Takchi (NSWLEC, No 10401 of 1995, 17 April 1996, unreported)
Pymble Industrial Village v Ku-ring-gai Municipal Council (1975) 3 LGATR 161
Stephenson v City of Hobart (1987) 29 APA 38
Storey & Storey v Director of Planning and District Council of Yankalilla (1975) 11 SASR 227; (1975) 40 LGRA 77
Tang v City of Stirling (1981) 5 APA 161
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Ward v Warringah Shire Council (1963) 10 LGRA 114
Yellow Express Carriers Ltd v Sydney City Council (1964) 10 LGRA 330
Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306; (1996) 92 LGRA 41
Zigami v City of Kew (1984) 14 APA 453

Case(s) also cited:

Nil

MR D R PARRY (SENIOR MEMBER):
REASONS FOR DECISION

Introduction

This is a subdivision case which is unusual in two respects. First, the Western Australian Planning Commission ("the respondent"), which refused the subdivision application, conceded in essence that, when assessed against the current and applicable legislation, planning instruments and policies, the proposed subdivision is acceptable and appropriate. Second, although the respondent opposed the application principally on the basis of a draft amendment to the City of Swan Town Planning Scheme No 9 ("TPS 9") which aims to prevent subdivision of the land until the preparation and approval of an Outline Development Plan ("ODP"), the authority which prepared the draft amendment, namely the City of Swan ("the Council"), has expressly disavowed it, citing "likely insurmountable obstacles to the successful preparation of ODPs and coordinated development of the land". However, the respondent has recently advised the Minister for Planning and Infrastructure ("the Minister") that the area the subject of the draft amendment requires comprehensive planning and that the amendment should proceed subject to modifications. Most significantly, the evidence indicates that the Minister is supportive of the view expressed by the respondent.
The application before the Tribunal proposes the subdivision of Lot 27 (No 130) Swan Street, Hazelmere ("the site") to create four freehold lots. The site, which is located at the corner of Swan Street and Wynne Street, has frontages of 41.27 metres and 62.33 metres to those streets, respectively, and an area of 2,135 square metres. Each of the proposed allotments has at least one frontage to an existing street, the frontages ranging from 17.14 metres to 24.84 metres. The areas of the proposed lots are 490 square metres, 520 square metres, 562 square metres and 564 square metres.
The site is level and contains an existing dwelling‑house and associated outbuildings. The site occupies the north-western corner of a large street block bounded by Wynne Street, Swan Street, Robertson Street and James Avenue. That street block forms part of a wider low‑density residential precinct which is surrounded, on three sides, by rural land, and is bounded to the west by a railway line ("the Hazelmere Precinct"). With the exception of five allotments in the southern part of this precinct, which are irregularly shaped and significantly larger than the site, the existing allotments within the precinct appear to be generally comparably sized to the site. The precinct is separated from two pockets of more closely settled residential areas by the railway line.
The reason for the low density of development in the Hazelmere Precinct is that this area was unsewered until about five years ago. Clause 6.3.3(b) of TPS 9 provides that in unsewered areas of the subject Residential Zone, the minimum area of land per dwelling for all dwelling types is 1,000 square metres with a minimum lot frontage of 15 metres. Clause 3.1.8(b) of TPS 9 provides that, in unsewered areas, no residential development other than the erection of a single dwelling house shall be approved (unless there are exceptional circumstances).
The introduction of reticulated sewerage has removed these restrictions on development of the site and the surrounding area. The provision of reticulated sewerage in other parts of the local government area at about the same time had the same effect. Almost inevitably, landowners in the newly-sewered areas made application for subdivision approval to the respondent. It appears that a number of these applications proposed the creation of battleaxe-shaped lots. The Council determined that the removal of the density restrictions would ultimately result in a fourfold increase in the density of development in the areas in question.
In response, on 9 August 2000, the Council adopted Amendment No 382 to TPS 9 ("Amendment 382") for the purpose of advertising. The amendment has the effect, if implemented, of rezoning the newly‑sewered areas from "Residential 1" (R20) to "Residential Development". Existing provisions of TPS 9, which are set out below, require the preparation and approval of an ODP before subdivision and most development occurs in the Residential Development Zone. Advertising and community consultation in relation to the amendment took place from November 2000 to June 2001. A total of 17 submissions were received during the advertising period. According to a report to Council dated 2 March 2005, "although considerable opposition to the amendment was expressed by some landowners, many acknowledged the need for coordinated development of these areas and could see the poor outcome that would result should lots be subdivided in a battleaxe-type configuration on a wide scale".
A report to Council dated 25 June 2003 stated as follows:
"A number of subdivision applications for land within the subject areas have been referred to the City from the WAPC. These applications invariably propose the creation of battleaxe‑shaped lots as this is often the only means by which landowners can independently subdivide their land. The applications have been placed on hold by the WAPC pending the finalisation of this amendment.
The widespread use of battleaxe lot configurations is likely to result in a detrimental impact on the streetscape of the established areas and in undesirable urban form whereby a large number of dwellings do not address the street and may not be visible from the street. A four-fold increase in the density of development will lead to increased demands being placed on existing infrastructure such as roads and drainage. The provision and, where necessary, upgrading of infrastructure could be more adequately addressed through the preparation of an ODP for each of the subject areas.
It is noted that WAPC Development Control Policy does not support the widespread use of battleaxe lot configurations except in established areas where alternatives may not exist. This amendment was initiated in recognition that an alternative approach exists to guide the development of the subject areas through the rezoning of this land to Residential Development and the requirement for comprehensive planning to be undertaken in the form of ODPs prior to subdivision."
Nevertheless, at its meeting on 25 June 2003, the Council resolved not to proceed with the amendment, but rather to develop an appropriate policy framework with the State Planning Commission to facilitate coordinated subdivision proposals. It did so because it "considered that the likely impediments to the coordinated development of the areas resulting from the high number of landowners and existing and approved development constrains the likelihood of successfully coordinating development to such an extent that the amendment should no longer be supported".
However, the Council submitted Amendment 382 to the Minister for approval as it was required to do by s 7(2)(b) of the Town Planning and Development Act 1928 ("TPD Act"). It appears from a report to Council dated 2 March 2005 that the Minister has "recently" considered the amendment and has "received advice from the WAPC that the subject areas need comprehensive planning and that the amendment should proceed subject to modifications which include the insertion of planning scheme provisions for infrastructure contributions to accompany the requirement for ODPs for the subject areas". The report also states:
"The Minister is supportive of the view expressed by the WAPC and has provided the City with the opportunity to give further consideration to the WAPC's comments with a view to the City preparing and recommending to the Minister, amendment provisions consistent with the WAPC's comments while also addressing the concerns raised by the community and the Council".
Although the resolution was not in evidence, it was common ground that on 2 March 2005 the Council adopted a recommendation that:
"In light of the Minister's correspondence that Council resolve to advise the Minister that should the amendment proceed to finalisation, that a number of modifications should be made to the amendment and that these modifications should be undertaken in the manner described in this report."
The "modifications", which the Council report describes as "significant modifications", involve the introduction of the requirement for infrastructure contributions into the City of Swan Draft Town Planning Scheme No 17 ("Draft TPS 17"), which I was informed has been given approval for advertising, rather than the inclusion of such provisions in TPS 9, the removal of certain areas from the operation of Amendment 382, the addition of two areas, and the creation of a special "Residential Redevelopment Zone" for the areas the subject of Amendment 382 (in preference to the "Residential Development Zone"), which the Council apparently considered would make more explicit that it could not grant development approval until the preparation and implementation of an ODP. It is unclear why Council considered the last amendment to be necessary in light of the existing provisions of TPS 9.
Significantly, the modifications proposed by the Council on 2 March 2005 do not seek to remove the subject site from the scope of Amendment 382 or to alter its fundamental object that comprehensive planning of the Hazelmere Precinct should take place, in the form of an ODP, prior to any further subdivision.
As noted above, a number of subdivision applications have been made since the introduction of reticulated sewerage in the locality. In particular, the respondent approved seven subdivisions to create a total of 19 lots in the Hazelmere Precinct during the period 20002002. However, since that time, and in particular since the submission by the Council of Amendment 382 in 2003, no further subdivision approval has been granted in the locality.

The Legislative and Statutory Planning Context

Section 7(1) of the TPD Act permits a local government to prepare a town planning scheme, or an amendment to a town planning scheme, with reference to land within its district. Section 7(2) of the TPD Act provides relevantly that a town planning scheme prepared or adopted, or an amendment to a town planning scheme prepared, by a local government shall be advertised for public inspection in accordance with the regulations and shall thereafter be submitted to the Minister for his approval. Sub-section 7(2a) and subsection 7(3) of the TPD Act provide as follows:
"(2a)The Minister may, in relation to a town planning scheme or amendment submitted to him under subsection (2)(b)
(a)approve of a town planning scheme or amendment;
(b)require the local government concerned to modify that town planning scheme or amendment in such manner as he specifies before that town planning scheme or amendment is resubmitted for approval under this subsection; or
(c)refuse to approve of that town planning scheme or amendment.
(3)A town planning scheme or amendment of a town planning scheme, when approved by the Minister and published in the Gazette, shall have full force and effect as if it were enacted by this Act."
Section 20(1)(a) of the TPD Act relevantly requires the approval of the respondent in order to subdivide land. Section 20(5) provides that, in giving its approval under s 20(1)(a), the respondent is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration.
Section 24(1) of the TPD Act provides that when, in the opinion of the respondent, a plan of subdivision may affect the powers or functions of a local government or public body, or any government department, the respondent shall forward the plan or a copy to the local government, public body or government department, as the case may be, for suggestions or recommendations. In the present case, the respondent forwarded the subdivision application to the Council, the Department for Planning and Infrastructure - Infrastructure Corridors, the Department of Industry and Resources - Safety and Environmental Branch (Petroleum Division), Epic Energy, the Water Corporation, Western Power and Telstra. The Department for Planning and Infrastructure - Infrastructure Corridors, the Department of Industry and Resources - Safety and Environmental Branch (Petroleum Division) and Epic Energy raised no objection to the proposal. The Water Corporation and Western Power raised no objection to the proposal and recommended the imposition of standard conditions of approval.
The Council recommended refusal of the application for two reasons, which were adopted as the reasons for refusal of the respondent, and which are set out at par 36 below.
Section 24(3) of the TPD Act provides that after considering the proposed plan of subdivision and any objections or recommendations received, the respondent "shall approve or refuse to approve the plan or require the applicant for approval to comply with such conditions as the [respondent] thinks fit to impose before approving the plan".
Section 26(1) of the TPD Act confers a right on an applicant for subdivision approval to seek a review by the State Administrative Tribunal, in accordance with Pt V of that Act, of the decision of the respondent to refuse subdivision approval. Section 61(1) provides that in determining an application in accordance with Pt V of the Act, the Tribunal is to have "due regard to relevant planning considerations" including any approved statement of planning policy prepared under s 5AA of the Act.
As noted above, the site is presently zoned "Residential 1" under TPS 9 and has an RCoding of R20. Clause 6.2.2 of TPS 9 provides as follows:
"6.2.2 Residential 1, 2 and 3 Zones
6.2.2.1The purpose and intent of the Residential 1, 2 and 3 Zones is to provide for a wide range of land uses compatible respectively with low, medium and high density residential development, and to promote a residential environment in a particular locality compatible with the maximum residential density permissible in that locality.
6.2.2.2Having regard to the purpose and intent of the Zones, the Council when dealing with development applications and otherwise planning for development within the Zones shall in any particular locality only permit uses buildings and other works whose scale and intensity are compatible with the maximum residential density permitted in that locality."
Clause 6.3.2.3 of TPS 9 provides that the development of land for any of the residential purposes dealt with by the Residential Design Codes of Western Australia ("RCodes") shall conform to the provisions of those Codes. The Objective of Design Element 1 Housing Density Requirements of the RCodes is "to ensure that residential development occurs in line with community expectations about its type and density". The Acceptable Development Provisions of Element 1 of the RCodes require compliance with Table 1 to the RCodes which specifies a minimum site area per dwelling of 440 square metres, an average site area per dwelling of 500 square metres and a minimum frontage of 10 metres for the R20 coding. It is common ground that the proposed subdivision complies with the Housing Density Requirements of the RCodes.
As noted above, Amendment 382 proposes the rezoning of the site from "Residential 1" to "Residential Development". Clause 6.2 of TPS 9 provides, in part, as follows:
6.2PURPOSE AND INTENT OF ZONES
6.2.1Residential Development Zone
6.2.1.1Planning for a residential neighbourhood should take account of the need to derive maximum amenity of benefit for those residents in adjacent neighbourhoods as well as for prospective residents. This planning consideration should be reflected in a plan for future subdivision and development to be known as an "Outline Development Plan". The subdivision and development of land zoned "Residential Development" should not proceed unless it accords with a properly prepared and approved Outline Development Plan.
In certain circumstances, Council may exercise discretion to grant approval to development that involves a minor change of use or minor extensions to existing buildings without the preparation of an Outline Development Plan.
An Outline Development Plan shall include a representation of:
(a)the existing features of the land comprising:
(i)lot boundaries, roads and reserves;
(ii)land use, buildings and structures;
(iii)vegetation;
(iv)contours and slopes;
(v)drains/water courses and wetlands;
(vi)soil types;
(vii)utility services;
(viii)development constraints and opportunities;
(b)proposed subdivision and development components:
(i)roadssystem, overlaid with pedestrian, bicycle and public transport routes;
(ii)facilities (commercial, shopping, civic, educational, recreation and open space);
(iii)provision of sewerage, drainage and public utilities;
(iv)development design standards and residential code, lot sizes and total yield;
(v)environmental impact, conservation or protection measures proposed for sites;
(c)statistical data, relevant studies, development designs or other information to meet Council's planning requirements and assist in the implementation of the proposal."

The site is zoned "Urban" under the Metropolitan Region Scheme.
Statement of Planning Policy No 1 - State Planning Framework Policy ("SPP 1") (formerly known as Statement of Planning Policy No 8) was prepared by the respondent and approved by the Governor under s 5AA of the TPD Act. SPP 1 is divided into two parts, namely Pt A: General Principles for Land Use and Development and Pt B: State and Regional Provisions. The general principles in Pt A "form the basis for all other provisions of this Framework". In addition, "they will act as the underlying principles for all State and regional plans, policies and strategies". Part B lists a number of plans, policies and strategies divided into functional categories.
Paragraph 1 of Pt A states as follows:
"1.The primary aim of planning is to provide for the fair, orderly, economic and sustainable use and development of land."
Paragraph 2 of Pt A identifies "the five key principles which further define this primary aim and describe the considerations which influence good decision-making in land use planning and development". The paragraph also states that "planning should take account of and give effect to, these principles and related policies to ensure integrated decision-making throughout government." The five key principles relevantly include the following:
"Community:
To respond to social changes and facilitate the creation of vibrant, safe and self-reliant communities."
"Infrastructure:
To facilitate strategic development by making provision for efficient and equitable transport and public utilities."
In relation to planning for community, s A2 of SPP 1 provides as follows:
"Planning anticipates and responds to the needs of existing and future communities through the provision of zoned and serviced land for housing, employment, recreation and open space, commercial and community facilities. Planning should recognise the need for and, as far as practicable, contribute towards more sustainable communities by:
•housing choice and diversity to suit the needs of differing households, including specialist housing needs, and the services they require;
•providing land for a range of accessible community resources including affordable housing, places of employment, open space, education, health, cultural and community services;
•promoting patterns of land use which reduce the need to transport, promote the use of public transport and reduce the dependence on private cars;
•encouraging high standards of urban design and a sense of neighbourhood and community identity in residential suburbs; [and] …
•providing effective systems of community consultation at appropriate stages of the planning and development process."
In relation to planning for infrastructure s A4 of SPP 1 states that:
"Planning should ensure that physical and community infrastructure by both public and private agencies is coordinated and provided in a way that is efficient, equitable, accessible and timely. This means:
•planning for land use and development in a manner that allows for the logical and efficient use provision and maintenance of infrastructure … ;
•facilitating the efficient use of existing urban infrastructure and human services and preventing development in the areas which are not well-serviced, where facilities and services are difficult to provide economically and which creates unnecessary demands for infrastructure and human services; and
•encouraging the providers of infrastructure, whether public or private bodies, to have regard to planning policies and assist strategic land use planning in making their investment decisions in order to ensure that land use and development is closely integrated with the provision of infrastructure services."
Part B of SPP 1 includes operational policies which have been adopted by the respondent to guide its decision-making on subdivision and development applications. These adopted and listed policies include Development Control Policy 1.1 Subdivision of Land - General Principles ("DC 1.1"), Development Control Policy 1.7 General Road Planning ("DC 1.7"), Development Control Policy 2.2 Residential Subdivision ("DC 2.2"), Development Control Policy 2.3 Public Open Space in Residential Areas ("DC 2.3"), and Guidelines for the Preparation of Local Structure Plans for Urban Release Areas ("Local Structure Plan Guidelines").
The policy objectives set out in cl 2 of DC 1.1 include the following:
"•To ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
•To facilitate development which achieves appropriate community standards of health, safety and amenity.
•To facilitate appropriate access and movement systems for all modes of transport.
…
•To make appropriate arrangements for development contributions, where necessary and relevant, for the orderly and proper planning of the locality containing the subdivision."
Clause 2 of DC 2.2 sets out the following policy objectives:
"•To establish a consistent and coordinated approach to the creation of residential lots throughout the State.
•To adopt criteria for residential lots which will ensure that each lot is provided with a suitable level of amenity, services and access.
•To facilitate the supply of residential lots of a wide range of sizes and shapes which reflect the statutory provisions of town planning schemes, the availability of reticulated sewerage and the need for frontage to public roads."
Clause 3.1.3 of DC 2.2, which concerns general policy measures, provides as follows:
"3.1.3All 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.
•Located within an area which is suitable for subdivision in terms of its physical characteristics, such as topography, soils, drainage, vegetation and natural features, and accord with an overall plan for the area which reflects those characteristics.
•Located within a system of vehicle and pedestrian movement consistent with the principles of the Commission's policy on Residential Road Design (DC 2.6) in terms of the hierarchy of roads, matters of road safety and lot access and the provision of cycleways and pedestrian walkways.
•Convenient to areas of passive and active open space, provided in accordance with the Commission's policy on Public Open Space (DC 2.3) in appropriate locations and configurations, having regard to existing and proposed distribution of open space in the immediate locality.
•Served by a suitable level of community services, schools, retail facilities, etc as determined under other policies adopted by the Commission.
•Screened or otherwise protected from the effects of any adjacent land use that may affect the amenity of the occupants of the lot."
Clause 2 of DC 2.3 sets out the following policy objectives in relation to public open space in residential areas:
"•To ensure that all residential development in the State is complemented by adequate, well-located areas of public open space that will enhance the amenity of the development and provide for the recreation needs of local residents.
•In appropriate cases, to facilitate the provision of land for community facilities such as community centres, branch libraries and daycare centres in conjunction with land ceded for public open space."
Clause 3.1.1 of DC 2.3 provides that the respondent's normal requirement in residential areas is that, where practicable, ten per cent of the gross subdivisible area be given up free of cost as a reserve for recreation. Clause 4.3 of this Policy facilitates the payment of cashinlieu for the ten per cent requirement. In the present case, the respondent has proposed, and the applicant has accepted, a draft condition of subdivision approval to be imposed in the event that the Tribunal considers that approval of the application is appropriate, which requires a ten per cent contribution and facilitates a cashinlieu payment.
Finally, the Local Structure Plan Guidelines guide the drafting of, among other plans, ODPs.

The Issues in the Appeal

The respondent refused the subdivision application for the following two reasons:
"1.The subject land forms part of a large area, which requires comprehensive planning (including agreement to an overall road pattern, the allocation of land for recreation and other public uses, provision for essential infrastructure and equitable arrangements for developer contributions), and approval to the subdivision would be premature and prejudice to the overall planning for the area.
2.Approval to the subdivision would set an undesirable precedent for further subdivisions of surrounding lots."
The respondent has maintained these two reasons for refusal as issues in the appeal. It has also added a third issue as follows:
"Given the stage that Amendment 382 has reached, it is a seriously-entertained planning proposal. Accordingly, significant weight should be attached to Amendment 382. Further, subdivision would not be approved where it will render more difficult the ultimate decision as to the form Amendment 382 should take."
The respondent has also referred to Amendment 382 as an important consideration in relation to its two original reasons for refusal.

Amendment 382

Mr Bydder, counsel for the respondent, submitted that, while under "ordinary circumstances" the proposed subdivision would be acceptable, these are not "ordinary circumstances" because of the proposed amendment to TPS 9. He submitted that the present application should be refused, principally because of Amendment 382, which, he contended, constitutes a "seriouslyentertained planning proposal" which should be given significant weight in this case.
In making this submission, Mr Bydder relied on the socalled "Coty Principle" which derives its name from the decision of the Land and Valuation Court of New South Wales in Coty (England) Pty Ltd v Sydney City Council(1957) 2 LGRA 117. That decision has been followed or applied in a large number of cases, including in each Australian State; see, for example, Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306; (1996) 92 LGRA 41; Stephenson v City of Hobart (1987) 29 APA 38; Zigami v City of Kew (1984) 14 APA 453; Storey & Storey v Director of Planning and District Council of Yankalilla (1975) 11 SASR 227; (1975) 40 LGRA 77.
Coty (England) Pty Ltd v Sydney City Council was an appeal against a decision of the City Council to refuse an application for consent to the erection of a substantial addition to an existing factory and warehouse building in an area zoned for such development, but which was proposed to be rezoned under a draft planning instrument in a manner which would prohibit such development. The so-called "Coty principle" was established in the following two paragraphs of Hardie J's decision at 125 126 of the report:
"It is important, in the public interest, that whilst the respondent Council's local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, so far as possible, in consonance with the town planning decisions which have been embodied in the local scheme in the course of preparation.
An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my opinion, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent Council and its town planning committee that the whole of the block should be zoned "Residential Class C". Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the Council dealt with the matter."
Agnew Clough Ltd v Town Planning Board (WATPAT, No 1 of 1979, 1 May 1980, unreported) was an appeal against the refusal by the Town Planning Board (a predecessor of the respondent) to grant subdivision approval on the basis, among other reasons, that the subdivision would conflict with the "intent of the future proposals for the land" which had been "earmarked" for rural "resource protection" and for "recreation" in the Eastern Corridor Study Strategy Plan. At p 8 of the decision, the Town Planning Appeal Tribunal held as follows:
"Insofar as it may be found that the Metropolitan Region Scheme or a local authority town planning scheme has given statutory force and effect to a particular principle, the [Town Planning Board] would be bound to apply it. Where a proposal for amendment of an existing town planning scheme has been formulated and is being seriously entertained, that proposal may be evidence of that which is consistent with sound town planning principles because it is necessary for the orderly and proper planning of the area in question; see Begley v The Shire of Wanneroo (1970) WAR 91 at p 95 per Virtue SPJ and J Della-Vedora v Town Planning Board (1978) unreported, the Town Planning Court, Appeal No 137 of 1979, 8th June 1975 at p 10 per Brinsden J [sic]. It follows that provisions with statutory force and effect apart, the identification of sound town planning principles is a question of fact. Thus, where a document is put forward as a statement of policy, the question will arise whether that policy is consistent with sound town planning principles. A more difficult question is whether the TPB in considering applications for subdivision is entitled to take into account recommendations for proposals under consideration but not as yet approved or adopted by the responsible authority. In our opinion, in such a case, the TPB would be entitled to look at the document in question as possible evidence of what was required for the orderly and proper planning of the locality, giving it such weight as was consistent with its source, nature and contents. This would be part of the process of determining what were the relevant town planning principles to be applied." (Emphasis added.)
At 33 34, the Tribunal held as follows:
"The applicant for approval of a plan of subdivision is, as a matter of law, entitled to have his application determined in accordance with sound town planning principles applied in the context of existing controls on subdivision. To the extent that future planning options are mere possibilities, they should be excluded from consideration or, at best, accorded very little weight. Where matters have proceeded to the stage where future planning proposals are being "seriously entertained" they may be taken into account, the weight to be given to them depending on the circumstances. It is the duty of the TPB, and of this Tribunal on appeal, to give a decision on the merits of the application having regard to the existing planning controls applicable to the land. Where an amended planning scheme has been adopted and is currently under consideration, the contents of that scheme may be taken into account, particularly where town planning decisions have previously been made which are embodied in the scheme cf. Coty (England) Pty Ltd v Sydney City Council (supra); Stelling v Melbourne and Metropolitan Board of Works (1977) 8 VPA 243. So far as the prejudice of future planning options is concerned, we consider that the principle is to be limited to circumstances where the grant of an approval (whether it be of an application to subdivide or of an application to commence development) would impair the objectives of a 'seriously entertained planning proposal'. … A planning proposal "seriously entertained" is one that has a real likelihood of being adopted, although, in Western Australia, where planning proceeds upon the more flexible instrument of policy, it is not necessary that the policy be given legal operation unless inconsistent with the provisions of an operative town planning scheme." (Emphasis added.)
More recently, Barker J, sitting in the Supreme Court of Western Australia, held in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at 451 452 as follows:
"88.The Coty principle, socalled, makes eminent sense. Planning options seriously entertained by planning authorities should not be peremptorily cut off. With respect, the principle enunciated Agnew Clough by the Tribunal concerning the relevance of what it identified as proposals for amendment of existing town planning scheme or a statement of policy that is "seriously entertained" also makes good sense. Nonetheless, there is perhaps a danger in elevating this principle to the status it does not have, and treat it as one having a statutory basis. Rather, the principle is merely intended to enable a planning proposal that does not yet have a formal status in the planning process to be regarded as a relevant town planning factor."
It appears that, when a draft planning instrument or policy or a draft amendment to a planning instrument or policy is raised for consideration in relation to a subdivision or development application, the planning consent authority or appeal tribunal must undertake four stages of inquiry. The four stages are as follows:
(1)In jurisdictions where there is no statutory requirement to take into consideration a draft planning instrument or policy or a draft amendment to a planning instrument or policy once it has reached a certain specified stage, the authority or tribunal must consider whether the draft constitutes a seriously-entertained planning proposal. If it determines that it is a seriously‑entertained planning proposal, it is a relevant matter for consideration in relation to the planning assessment.
(2)If the draft is a relevant matter for consideration, the authority or tribunal must consider the extent to which the application before it is consistent with the planning objective or planning approach embodied or reflected in the draft. In particular, the authority or tribunal must consider whether the approval of the application is likely to impair the effective achievement of the planning objective or planning approach embodied or reflected in the draft or is likely to render more difficult the ultimate decision as to whether the draft should be made or its ultimate form.
(3)The authority or tribunal must consider the weight to be accorded to the consistency or otherwise between the application and the draft.
(4)The authority or tribunal must weigh its conclusions in relation to the foregoing matters in the balance along with all other relevant considerations relating to the application, and determine whether, in light of all relevant considerations, it is appropriate in the exercise of planning discretion to grant approval to the application and, if so, subject to what conditions.

Seriously-entertained Planning Proposal

In Tang v City of Stirling (1981) 5 APA 161, the Town Planning Appeal Tribunal held at 172 as follows:
"Where a scheme has been adopted by a formal resolution of the Council and transmitted to the Town Planning Board for consideration, it is a proposal which must be regarded as seriously entertained and relevant for consideration: Park v Warringah Shire Council (1970) 20 LGRA 312 at pp 314 - 315 per Else-Mitchell J; Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at p 125."

In Fitzwood Pty Ltd v Whittlesea City (1992) 78 LGERA 193, Smith J held in the Supreme Court of Victoria that it was open to the Administrative Appeals Tribunal to take the view that a structure plan was a seriously-entertained planning proposal where it was "a serious and important planning document which defines, for the present, what the responsible authority sees as the orderly and proper planning for the area".
In the present case, the responsible authority, namely the Council, has not adopted Amendment 382, and indeed, expressly disavowed it in June 2003. Although the Council took up the invitation of the Minister to propose modifications to Amendment 382 on 2 March 2005, it could still not be concluded that the draft amendment "defines, for the present, what the responsible authority sees as the orderly and proper planning for the area".
Although, in my opinion, Amendment 382 ceased to be a seriously‑entertained planning proposal when the Council rejected it in June 2003, as it has subsequently been endorsed by the respondent, and as the Minister is supportive of the view expressed by the respondent, there can be little doubt that Amendment 382 is again a seriously‑entertained planning proposal.

Consistency Between the Subdivision and Amendment 382

I am conscious of the fact that a motivating factor which led to the preparation of Amendment 382 in the first place was a desire to avoid the creation of battleaxe-shaped lots, whereas the proposal does not involve any battleaxe subdivision. I am also conscious of the fact that a second motivating factor behind the preparation of Amendment 382 was to facilitate, by an ODP, the provision and upgrading of infrastructure to address the demands of a fourfold increase in the density of development and that, notwithstanding the lack of an ODP, the respondent has proposed, and the applicant has accepted, draft without prejudice conditions of subdivision approval which require the applicant to make a contribution to the Council for the Hazelmere Drainage Contribution Fund and to dedicate ten per cent of the site as a reserve for recreation (or to make a cashinlieu payment).
However, the two types of developer contributions sought by the respondent, and agreed to by the applicant, in this case, do not include contribution for all of the types of infrastructure which the increased proposed density on the site is likely to require or increase the demand for, and which is likely to be identified in an ODP, if Amendment 382 is ultimately approved by the Minister and gazetted. In particular, I accept the evidence of Mr Carter that road upgrading and community facilities are likely to be required.
More fundamentally, Amendment 382 is not simply concerned with avoiding battleaxe allotments and providing for equitable developer contributions for infrastructure and infrastructure upgrade in consequence of the anticipated increase in population. Its object, as Mr Bydder submitted, is to provide coordinated planning for a locality which is plainly now capable of a significant increase in residential population. Clause 6.2.1.1 of TPS 9 identifies the broad range of subdivision and development components which would form part of an ODP, if the amendment were approved. These components include road systems, pedestrian, bicycle and public transport routes, commercial, shopping, civic, educational, recreation and open space facilities, utility provision, residential coding, lot sizes and yield, development design standards, and environmental matters.
I am satisfied that approval of the proposed subdivision is inconsistent with the planning objective embodied or reflected in Amendment 382, namely proper and coordinated planning of the Hazelmere Precinct in consequence of the anticipated significant increase in residential population. In particular, in my opinion, approval of the subdivision application is likely to impair the effective achievement or the planning objective, because it would potentially remove land from an overall area which the amendment proposes should be comprehensively planned as an entity before any subdivision is approved.
Furthermore, in my opinion, approval of the application is likely to make more difficult the ultimate decision as to the form of Amendment 382. In this regard, the Council has already recommended the removal of certain areas form the ambit of Amendment 382 in consequence of approvals which have occurred in the interim. Approval of the subject application would, incrementally, render the ultimate form of the amendment more difficult. Although, as Mr Sri Ramanathan submitted on behalf of the applicant, the approval of the application "will not inhibit the preparation of an Outline Development Plan for the surrounding land", Amendment 382 envisages that the site forms part of an integrated whole and should be itself the subject of an integrated and coordinated planning document prior to subdivision.
It is true that the site is a corner lot located at or near the edge of Hazelmere Precinct. Furthermore, Mr Carter conceded that the subdivision proposed "would be unlikely to constrain an overall road pattern and the allocation of land for recreation purposes" under an ODP. Although Mr Carter gave evidence that approval of the application "may complicate the provision of a laneway/ROW within the street block if this is identified as being necessary following comprehensive planning", I find that it is extremely unlikely that the site would be utilised for such a lane, given that the lane would emerge at or close to the intersection of two existing streets, which is likely to give rise to road safety issues.
However, in my opinion, by proposing a form of subdivision prior to the formulation and adoption of a comprehensive planning document as envisaged by Amendment 382, the application would, if approved, "cut across to a substantial degree the considered conclusion of the respondent", and apparently of the Minister, that the precinct needs comprehensive planning before subdivision is approved (to borrow the words of Hardie J in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 125).

Appropriate Weight

In Marford Nominees Pty Ltd v State Planning Commission (WATPAT, No 11 of 1994, 23 February 1995, unreported), the Town Planning Appeal Tribunal held at 8 as follows:
"The provisions of an amendment can never be determinative of an application for development or subdivision and remain an aspect of the circumstances of the case which are considered pursuant to Regulation 8 of the State Planning Commission Regulations. A proposal should be given weight according to the degree to which it addresses the specific application and is based on sound town planning principles." (Emphasis added.)
The New South Wales Land and Environment Court, and its predecessors, have considered the weight to be accorded to a draft planning instrument or to a draft amendment to a planning instrument in a long line of decisions; see, for example, Ward v Warringah Shire Council(1963) 10 LGRA 114 at 119; Pymble Industrial Village v Ku-ring-gai Municipal Council (1975) 3 LGATR 161 at 165; Mathers v North Sydney Council[2002] NSWLEC 84 at [42]; Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209at [6]; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at 297 - 298. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council(2003) 129 LGERA 195, the New South Wales Court of Appeal endorsed this line of authority and considered at 205 [47] that the principles developed and applied in these cases "are wellsummarised" in the following passage from the decision of Pearlman CJ LEC in Architects Haywood and Bakker Pty Ltd v North City Council[2000] NSWLEC 138:
"[33] Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this court as benchmarks for the attribution of weight in the consideration of a development application (see Balgownie Pty Ltd v Shoalhaven City Council(1980) 46 LGRA 198 at 202; Parramatta City Council v Takchi (NSWLEC, No 10401 of 1995, 17 April 1996, unreported) and Davfast Pty Ltd v Ballina Shire Council[2000] NSWLEC 128. As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref's evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail and not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case." (Emphasis added.)
In my opinion, the Town Planning Appeal Tribunal in Marford Nominees Pty Ltd v State Planning Commission and Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council together identify the four principal criteria which should be utilised to determine the weight which should appropriately be given to a draft planning instrument or policy or a draft amendment to such an instrument or policy in a planning assessment or appeal. These criteria are:
(1)The degree to which the draft addresses the specific application.
(2)The degree to which the draft is based on sound town planning principles.
(3)The degree to which its ultimate approval could be regarded as "certain".
(4)The degree to which its ultimate approval could be regarded as "imminent".
In the present case, Amendment 382 certainly addresses the specific application, namely subdivision in the Hazelmere Precinct. As noted above, however, s 20(5) of the TPD Act provides that the discretion of the respondent is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition. Thus, even if Amendment 382 had been approved by the Minister and gazetted, it would remain within the statutory planning discretion of the respondent, and of this Tribunal on review, to grant approval to the subdivision, notwithstanding the fact that an ODP has not been prepared and approved or, if an ODP has been prepared or approved, notwithstanding the fact that the subdivision does not accord with it. However, in the exercise of the planning direction, the respondent or the Tribunal would have appropriate regard to the planning objective or planning approach of the relevant provisions of the scheme or, as Ipp J put it in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 535; 74 LGRA 68 at 80, to the "town planning consequences" or "town planning implications" of the provisions.
Amendment 382, which is fundamentally concerned with comprehensive planning of an area which is likely to undergo a significant increase in density, is based on sound town planning principles. As noted above, par 1 of SPP 1 recognises that the primary aim of planning is to provide for the "fair, orderly, economic and sustainable use and development of land". By, in effect, requiring comprehensive planning of the areas in question, Amendment 382 promotes the orderly, economic and sustainable use and development of land. The amendment gives effect to the key planning principles of planning for community and planning for infrastructure which are identified in SPP 1 and which "further define" the primary aim stated in par 1 of the Policy. It is also entirely consistent with the policy objectives of DC 1.1 which are set out earlier in these reasons.
In relation to the criteria of "certainty" and "imminence", I respectfully adopt and apply the following passage from Pearlman J's decision in Haywood and Bakker (supra) to the present case:
"There is no doubt in my mind that [Amendment 382] will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon [consideration of the Council's resolution by the respondent and the Minister and consequent upon any submissions which might be received following any further advertising of any such endorsed amendments]. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future."
As I have noted above, the "planning approach" which Amendment 382 adopts is comprehensive planning of the locality prior to the approval of any subdivision application.
It was Mr Sri Ramanathan's evidence and submission for the applicant that Amendment 382 has gone through a "long and arduous process" which it has not in fact finally emerged from. He described the amendment as "fraught with problems", and he expressed the opinion that its ultimate approval by the Minister might take another two years, because of the need to further advertise amendments proposed by the Council. He also noted that one of the amendments proposed by the Council is that the requirement for infrastructure contributions should be contained Draft Town Planning Scheme No 17, rather than in TPS 9, and that the conflict between the Council and the respondent in this regard is likely to delay the whole process and give rise to some doubt as to where it will lead.
In my opinion, the critical facts in the present case are that the Minister is supportive of the view expressed by the respondent that there is a need for comprehensive planning in the subject locality and that the Council has not recommended the removal of the site from the ambit of Amendment 382. In light of these fundamental facts, I am satisfied that the planning approach which Amendment 382 adopts will be brought into effect within the reasonably foreseeable future. In consequence of its certainty and imminence, the degree to which the draft addresses the specific application and is based on sound town planning principles, in my opinion, it is appropriate to accord significant weight to the planning objective and planning approach of Amendment 382 and to the inconsistency between the subject application and that objective and approach.
Finally, I reject the submission put on behalf of the applicant that "no weight should be given to Amendment No 382 … as [unlike the situation in New South Wales] no head of power is provided in the Town Planning and Development Act 1928 to enable a consent authority to give consideration to an amendment (draft planning instrument)". Although, unlike New South Wales (see Environmental Planning and Assessment Act 1979 s 79C(1)(a)(ii)), in Western Australia there is no specific statutory provision which requires consideration be given to a draft amendment to a town planning scheme, it is wellrecognised in this State that such a draft is a relevant matter for consideration, where it is a seriouslyentertained proposal, as an aspect or element of orderly and proper planning. As a draft planning provision is a relevant matter for consideration where it is a seriouslyentertained proposal, it is necessary to accord appropriate weight to it in all the circumstances.

Consideration of the Amendment

As the Town Planning Appeal Tribunal held in Nattrass v City of Perth [2001] WATPAT 2:
"Because it does not have the operation of law, a seriously entertained proposal is not determinative of a planning application that complies with the existing Scheme. Instead, the Draft Scheme becomes an important factor to be considered in the determination of the Appeal. After a review of the authorities, King J in the Supreme Court of Victoria in Albury-Wodonga Development Corporation v Fitzpatrick [1982] VR 165, stated (at 170 171):
'The fact that a planning proposal is "seriously entertained" is no more than one of the circumstances to be taken into account by the court'."
With this in mind, I will consider Amendment 382 as a component of the planning assessment below.

Premature Application

I am not satisfied that, absent Amendment 382, the subdivision application would warrant refusal on the basis that approval of the application would be premature. As Mr Carter conceded during cross-examination, the present zoning and the currently applicable development control policies identified above provide a consistent and coordinated approach to the creation of residential lots in the locality. As Mr Carter also agreed, the relevant locality is not an "urban release area" in the classic sense. Rather, it is an existing residential area, with a relatively low density, but with existing roads, open space and other infrastructure.
Notwithstanding the anticipated significant increase in residential population in the locality, absent a seriouslyentertained proposal to require comprehensive planning prior to subdivision and development, the present application should not, in my opinion, be refused, simply because it would be preferable for comprehensive planning to take place.

Adverse Planning Precedent

The respondent submitted that, in the absence of comprehensive planning, the creation of new lots within the area affected by Amendment 382 should not be approved, because approval would create a precedent for further unplanned subdivision. On behalf of the applicant, it was submitted that approval of this application will not give rise to any adverse planning precedent, because of the corner position of the site, and because each application must be assessed on its own merits.
In Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, the Town Planning Appeal Tribunal stated at 177 as follows:
"The Tribunal has been reluctant to place great importance on the undesirable precedent argument in several appeals for the reason stated in Aspen Pty Ltd v State Planning Commission (WATPAT, No 13 of 1988, unreported) at 10:
'The precedent argument is not usually treated by this Tribunal as a "stand alone" argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of development, should not be a reason why the appeal should be dismissed … '
The fact that a subdivision will result in an undesirable precedent is a valid consideration that has been accepted by the Supreme Court of South Australia in Mills v District Council of Willunga (1985) 61 LGRA 29. As stated in Aspen, and applied by this Tribunal in several instances, it will not defeat, on its own, a subdivision of merit. Where, as here, there is a strong code and standard and there is no compelling reason why subdivision should proceed, the precedent argument provides a further rationale for refusing subdivision."
In Goldin v Minister for Transport(2002) 121 LGERA 101, Lloyd J comprehensively reviewed New South Wales and English authorities in relation to the relevance and significance of precedent in planning assessment. At 111, Lloyd J observed and held as follows:
"31.The authorities relied upon by Mr Hale show clearly that the precedent effect of a particular proposal is a valid consideration. In Shellcove Gardens Pty Ltd v North Sydney Municipal Council(1960) 6 LGRA 93, Sugerman J expressly referred to his earlier decision in Emmott v Ku‑ring‑gai Municipal Council (1954) 3 LGRA 77, in which he corrected the misprint in the latter judgment. Sugerman J acknowledged that "if one application were granted it might prove difficult for the council to refuse others unless the circumstances were distinguishable". In the present case there has been a finding of fact by the Senior Commissioner that there is more than a mere 'chance or possibility' of such later applications.
32.In particular, the decision of the Court of Appeal in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 is, of course, binding upon me. As noted above, that Court held that the risk of establishing a precedent readily invokable by prospective developers of other land in the vicinity is a valid consideration.
…
34.In the present case, the Senior Commissioner did not err in law by taking into consideration the fact that approval of the application would be a precedent. That was not an irrelevant consideration. It was a relevant consideration on the facts and circumstances of the case as found by the Senior Commissioner, namely that the proposed developments were not themselves unobjectionable, having, as the Senior Commissioner found, an undesirable visual impact on a largely undeveloped shoreline; and there was more than a mere chance or possibility that there may be later undistinguished development applications of the same class - or as the Senior Commissioner found, 'would lead inexorably to a further three over time' and 'pressure to achieve a further 13 shoreline facilities' also described by the Senior Commissioner as 'likely to be an inevitable consequence'."

I respectfully adopt the criteria stated by Lloyd J in Goldin v Minister for Transport (supra) as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely:
(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.
In my opinion, these criteria are consistent with Western Australian authority in Aspen Pty Ltd v State Planning Commission (supra) and Marshall v Western Australian Planning Commission (supra).
In the present case, I do not accept the evidence of Mr Carter that "approval for the application will set a precedent for further unplanned subdivision … in the form of battleaxe configuration, within the amendment area". I cannot see how subdivision of a corner lot to create four lots each with its own street frontage could be regarded as a precedent in relation to battleaxe subdivision within the street block.
However, there are a number of corner allotments within the Hazelmere Precinct which appear to have a comparable size and street frontage to the site. Given that, for reasons discussed above, the proposed subdivision is inconsistent with the planning objective of a seriously-entertained planning proposal, which is to be given significant weight, it is not "unobjectionable". Furthermore, there is plainly more than a mere chance or possibility that there may be later applications for approval to subdivide comparable corner allotments in the locality.

Assessment of the Subdivision Application

In Yellow Express Carriers Ltd v Sydney City Council (1964) 10 LGRA 330, a development appeal which turned on the Coty principle, Else-Mitchell J observed at 337 as follows:
"These considerations must, as I have said, be weighed in the balance along with other matters which by cl 27 of the Ordinance are to guide the Court in reaching a decision on the appeal. The process of balancing all relevant matters is, however, no mere mechanical one; it calls for the application of qualities of judgment which are basic to the exercise of a judicial discretion and this is particularly so when, as here, one finds a sharp competition between the private rights of a landowner and the various aspects of public interest which, according to its modern conception, town planning is designed to serve. The private rights of the appellant as owner of the land are evident enough and whilst the public interests may not be capable of equally precise statement or definition, sufficient has been said to show the importance they have in the framework of cl 27; and it is in this framework that the Court is obliged to exercise the discretion conferred upon it."
This passage, while formulated in the context of development assessment under the County of Cumberland Planning Scheme Ordinance (NSW), is, with respect, an eloquent expression of the process involved in the exercise of planning discretion, and is equally apposite in relation to the review by this Tribunal of decisions concerning development and subdivision applications in Western Australia. However, it is to be borne in mind that the exercise of planning discretion in relation to subdivision in this State is undertaken in a particular statutory context which is related to, but separate from, development control and assessment. In contrast to, for example, New South Wales, where the Environmental Planning and Assessment Act 1979 s 4(1) defines "development" to include "the subdivision of land", and where development approval to carry out subdivision is required to be obtained from a consent authority, generally the local government, if the applicable planning instrument so requires (see s 76A), in Western Australia, subdivision approval and assessment is subject to a statutory regime, set out in Pt III of the TPD Act, which is distinct from the statutory regime governing town planning, set out in Pt 1 of that Act.
Thus, Ipp J held in the Supreme Court of Western Australia in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 535; 74 LGRA 68 at 80 that:
"While the town planning implications of a particular zoning will often be a most important factor in the approval of a subdivision, each decision made by the Tribunal will depend on all factors relevant to the land in question. Zoning should not be elevated to the position of absolute arbiter of subdivision approvals."
As the Town Planning Appeal Tribunal recognised in Agnew Clough Ltd v Town Planning Board (supra) at 33 "the applicant for approval of a plan of subdivision is, as a matter of law, entitled to have his application determined in accordance with sound town planning principles applied in the context of existing controls on subdivision". If, in Western Australia, an operative provision of a town planning scheme cannot be determinative of a subdivision application, much less so can a draft amendment to a town planning scheme be determinative. However, the town planning implications of a draft provision, or as I have preferred to express it in these reasons, the planning objective or planning approach embodied or reflected in the draft provision, may be of such importance, and the inconsistency between the subdivision application and the planning objective or approach so great, that, when these considerations are weighed against all other relevant considerations, the subdivision application warrants refusal.
As I noted at the outset of these reasons, the respondent in essence conceded that the application before the Tribunal is acceptable and appropriate, when judged against the current controls. In particular, Mr Carter conceded under cross-examination that, in terms of subdivision design and lot sizes, the development complies with the relevant controls. Moreover, the proposal satisfies the third policy objective of DC 2.2, namely "to facilitate the supply of residential lots of a wide range of sizes and shapes which reflect the statutory provisions of town planning schemes, the availability of reticulated sewerage and the need for frontage to public roads".
These are important factors and significant weight needs to be attached to them in the overall assessment of the application. However, as I have found, significant weight should also be accorded to the planning objective and planning approach of Amendment 382 and to the inconsistency between the application and that objective and approach in the present circumstances. I have found that approval of the present application is likely to impair the effective achievement of the fundamental objective of Amendment 382, namely coordinated planning of the relevant precinct. I have also found that the approval of the application is likely to make the ultimate form of Amendment 382 a more difficult matter.
In the particular, and somewhat unusual circumstances of this case, I have determined that, on balance and taking into account all of the considerations, the subdivision application does not warrant approval, principally because it is so fundamentally inconsistent with the sound planning objective of Amendment 382. In this case, in my opinion, the public interest in coordinated and comprehensive planning should prevail.
I have also found that approval of the proposed subdivision would create an adverse planning precedent in relation to other corner allotments in the precinct. This finding strengthens my conclusion that the application should be dismissed.

Orders

The orders of the Tribunal are:
1.The application is dismissed.
2.The decision of the respondent to refuse subdivision approval is affirmed.

I certify that this and the preceding 33 pages comprise the reasons for decision of the Tribunal.

_____________________________

Mr D R Parry
Senior Member