O'BRIEN and CITY OF COCKBURN - [2010] WASAT 101

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: O'BRIEN and CITY OF COCKBURN [2010] WASAT 101

MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD: 15 JUNE 2010

DELIVERED : 12 JULY 2010

FILE NO/S: DR 378 of 2009

BETWEEN: MURRAY O'BRIEN
Applicant
AND
CITY OF COCKBURN
Respondent

Catchwords:

Town planning - Structure plan - Advertising Development area Odour buffer Whether proposal is different from earlier structure plan refused by the Tribunal on grounds of being contrary to the interest of orderly and proper planning Grounds of hardship

Legislation:

City of Cockburn Town Planning Scheme No 3, cl 4.9.3, cl 4.11.1, cl 6.2.2, cl 6.2.2.1, cl 6.2.4.2, cl 6.2.5.2, cl 6.2.6, cl 6.2.6.1(e), cl 6.2.8, cl 6.2.8.1, cl 6.7, cl 6.8, cl 8.2.1(i), Sch 11
Environmental Protection Act 1986 (WA)
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 172, s 241(3)
State Administrative Tribunal Act 2004 (WA), s 47

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Mrs R O'Brien (Representative)
Respondent: Mr D McLeod

Solicitors:

Applicant: N/A
Respondent: McLeods Barristers & Solicitors

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

O'Brien & Anor and City of Cockburn [2008] WASAT 24

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This is a review of the City of Cockburn's decision to refuse advertising of a proposed Local Structure Plan intended to coordinate subdivision and development of land in Munster in the City of Cockburn.
The land falls within the odour buffer of the Woodman Point Waste Water Treatment Plant.
The City of Cockburn submitted that the proposed structure plan should not be advertised on grounds that the proposal did not comply with the requirements for a structure plan under the City of Cockburn's Town Planning Scheme No 3. The proposal represented residential development which, in accordance with the scheme, is not supported within the buffer of the Woodman Waste Water Treatment Plant. Further, the City argued that the proposal was factually the same as a proposal to advertise a proposed structure plan on land, including the subject land, refused by the Tribunal in 2008 and should therefore be dismissed on that basis.
The applicant argued that the proposed structure plan was entirely different from that previously reviewed by the Tribunal and that the planning circumstances and context had changed.
The applicant submitted that the proposed structure plan applying to a single lot and designed to effect a subdivision to create one additional lot, met the planning scheme requirements but would be minimal in its impact so as to be inconsequential to future planning for the area.
The applicant submitted evidence that improvements to the Woodman Waste Water Treatment Plant had rendered odour emissions negligible and that there was a reasonable expectation that the odour buffer would be modified.
The applicant presented evidence as to grounds of hardship and requested the Tribunal exercise favourable discretion in its determination under s 241(3) of the Planning and Development Act 2005 (WA).
The Tribunal concluded that the proposed structure plan was not a plan that met the objectives for comprehensive and coordinated planning of land required by the City of Cockburn's Town Planning Scheme No 3. To allow the proposal would set an undesirable precedent for fragmented development of an area otherwise requiring comprehensive and coordinated planning.
The Tribunal found that there was no change in the planning circumstances to allow a departure from the consideration for orderly and proper planning of the area as determined in the Tribunal's previous decision O'Brien & Anor and City of Cockburn [2008] WASAT 240. In particular, the necessary and rigorous procedures for modelling and analysing the odour emissions of the Woodman Waste Water Treatment Plant and any consideration of modification of the odour buffer have not been completed and accordingly the proposal would still be contrary to the interest of orderly and proper planning of the area.
The Tribunal declined to exercise a discretion in regard to the claim of hardship because to do so would have contradicted the application of sound town planning principles.
The Tribunal concluded that the application for review should be dismissed.

Introduction

This is a review of the City of Cockburn's (respondent) decision to refuse advertising of a proposed Local Structure Plan (LPS) intended to coordinate subdivision and development of Lot 5 Fawcett Road, Munster (Lot 5) in the City of Cockburn.
The application seeking approval for advertising of the LPS was submitted to the respondent on 24 October 2008 by Michael Swift and Associates, Town Planners, acting on behalf of Mr Murray O'Brien (applicant) and Mrs Robyn O'Brien. The required application fee was not, however, paid until 14 July 2009.
Following referral to, and receipt of advice from the Western Australian Planning Commission (WAPC), the respondent refused the application on 3 September 2009.
The applicant lodged an application for review of the respondent's decision with the Tribunal on 3 October 2009.

The proposal and its context

Lot 5 is a small rural residential property of 1.094 hectares on the corner of Fawcett Road and Albion Avenue, Munster. The property is situated at the eastern margin of Lake Coogee, and enjoys views across the lake.
The property is occupied by two dwellings. The main dwelling is located in the northwestern corner of the property and the other in the southeastern sector. The latter dwelling is described as ancillary accommodation and in accordance with development approval conditions, is limited to occupancy by a member of the family of the occupier of the main dwelling.
Other properties in the surrounding locality are of similar size to Lot 5. They are also rural residential in character mostly with single dwellings, some operating small market gardens.
The Woodman Point Waste Water Treatment Plant (Woodman Point WWTP or plant) is situated about 500 metres away from Lot 5 on land on the western side of Lake Coogee. The plant is responsible for processing waste water generated in the southern portion of the Perth metropolitan area.
The proposed Local Structure Plan, (LSP) the subject of the application, applies solely to Lot 5. The LSP illustrates that Lot 5 is proposed to be subdivided into two lots, such that the main house would be excised and contained upon a small lot of 0.105 hectares in the northwest corner of the property. The LSP depicts the remaining area of 0.989 hectares accommodating the ancillary dwelling.
A comprehensive planning report in support of the proposed LSP has been submitted by the applicant.
Accompanying the LSP is a plan of the surrounding area described as a Context Plan. It illustrates how the lands east of Lake Coogee, including Lot 5, might be developed as an urban precinct and demonstrates a context in which the proposed subdivision and development of Lot 5 would be compatible.
The applicant is seeking that the proposed LSP be progressed by the respondent in accordance with appropriate provisions of the City of Cockburn Town Planning Scheme No 3 (TPS 3 or Scheme). In particular, the respondent is requested to conduct public advertising of the LSP in accordance with cl 6.2.8, 'Advertising of Structure Plan', and cl 6.7 and cl 6.8 of the TPS 3.

Statutory and policy instruments

Under the Metropolitan Region Scheme (MRS), Lot 5 is situated within an area zoned 'Urban Deferred'.
Lot 5 is zoned 'Development' under the provisions of the TPS 3.
Lot 5 is identified as being located within Development Area DA5 Munster (DA5) under Sch 11 of TPS 3.
Clause 6.2.2.1 of TPS 3 identifies that the purposes of Development Areas are to:
a)identify areas requiring comprehensive planning; and
b)coordinate subdivision and development in areas requiring comprehensive planning.
Particular provisions identified in TPS 3 relating to DA5 are recited as follows:
1.An approved structure plan together with all approved amendments shall apply to the land in order to guide subdivision and development.
2.To provide for residential development except within the buffers to the Woodman Point WWTP, Munster Pump Station and Cockburn Cement.
3)The local government will not recommend subdivision approval or approve land use and development for residential purposes contrary to Western Australian Planning Commission and Environmental Protection Authority Policy on land within the Cockburn Cement buffer zone.
Clause 6.2.6 of TPS 3 describes the detail requirements of a proposed structure plan cl 6.2.6(e) specifies that a local structure plan should incorporate a map showing proposals for:
(i)neighbourhoods around neighbourhoods and town centres;
(ii)existing and proposed commercial centres;
(iii)natural features to be retained;
(iv)street block layouts;
(v)the street network including street types;
(vi)transportation corridors, public transport network and cycle and pedestrian networks;
(vii)land uses including residential densities and estimates of population;
(viii)schools and community facilities;
(ix)public parklands; and
(x)urban water management areas.
The City of Cockburn prepared an LPS in 1999 designed to support and be read in conjunction with TPS 3.
The LPS identifies that the Woodman Point WWTP has a substantial odour buffer which represents a constraint to residential development in the Munster locality (see cl 4.11.1, 'Sewerage').
The Development Constraints Map of the LPS (Figure 18) illustrates the extent of the WWTP odour pollution buffer and identifies that Lot 5 is within that buffer area.

The applicant's previous proposal and subsequent review by the Tribunal

Mr and Mrs O'Brien made an application to the respondent in 2007 seeking public advertisement of a plan titled the Munster DA5 (Development Zone) Local Structure Plan.
The plan covered an area of about 25.8 hectares involving 23 properties, including Lot 5, and demonstrated a planned development of residential lots, public open spaces, conservation areas and roads.
The respondent refused to advertise the proposed plan under cl 6.2.8.1 of TPS 3.
The Tribunal undertook a review of the respondent's decision and delivered its decision on 16 October 2008 in O'Brien & Anor and City of Cockburn [2008] WASAT 240 (O'Brien).
In its summary of the decision, the Tribunal said:
Mr and Mrs O'Brien sought review by the State Administrative Tribunal of the City of Cockburn's refusal to advertise a structure plan to enable residential development in the Munster locality on the eastern shore of Lake Coogee. In order for the structure plan to be advertised, the Council or the Tribunal on review must be of the opinion that the structure plan is consistent with orderly and proper planning.
The Tribunal determined that the structure plan is not consistent with orderly and proper planning. The local planning scheme says that the area is to provide for residential development 'except within the buffers to the Woodman Point [Wastewater Treatment Plant]' which is the largest wastewater treatment plant in the State, currently treating the equivalent of 48 Olympicsized swimming pools of wastewater a day. Substantially, the whole of the structure plan area is within the buffers to the wastewater treatment plant.
Furthermore, although odour upgrade works are currently being undertaken at the wastewater treatment plant to reduce odour by 50%, the Environmental Protection Authority has advised that the current buffer should be retained until after the completion of these works and subsequent modelling and groundtruthing. The technical odour evidence presented to the Tribunal supported this advice. Until the outcome of this process is known, the structure plan proposing residential development is premature and contrary to orderly and proper planning.
The Tribunal therefore refused to allow the structure plan to be advertised.

The respondent's decision

The respondent refused advertising of the proposed LSP for Lot 5 because the LSP fails to satisfy the following:
1.The prerequisite orderly and proper planning test required by cl 6.2.6.4 of the Scheme.
2.Scheme requirements for a proposed Structure Plan.
3.Scheme TPS 3 provisions relating to Development Areas and specific land use restrictions contained in Schedule 11 of the Scheme relevant to Development Area 5 Munster.
4.Western Australian Planning Commission policies and guidelines relating to land zoned 'Urban Deferred' under the MRS and the WAPC having expressed the view that the proposed LSP is premature and contrary to orderly and proper planning.

The respondent's argument

The respondent argued the following contentions:
1)The proposed structure plan for Lot 5 is intended to result in residential development.
2)Lot 5 is still within the WWTP buffer as determined by the Tribunal in O'Brien.
3)Residential development within the WWTP buffer is contrary to the intent of Sch 11 of TPS 3.
4)The proposed structure plan does not fulfil the function of comprehensive planning required by TPS 3 and does not include the expected components of a local structure plan required by TPS 3. For these reasons the structure plan is not consistent with orderly and proper planning, and should not be advertised.
5)Approval of the structure plan could make the future assembly of land, the provision of services and facilities more costly and difficult.
6)The application for review contains the same factual elements as O'Brien. The applicant is therefore estopped from arguing that Lot 5 is not within the WWTP buffer. In such circumstance, the proceedings are unjustified under s 47 of the SAT Act and should be dismissed on that basis.
Witness for the respondent, Mr M Herbert, a Water Corporation employee and Business Manager for the Wastewater Treatment Branch, Water Technologies Division, provided evidence of the history of the Woodman Point WWTP since its establishment in 1966. The WWTP serves the wastewater treatment needs of the whole southern metropolitan region of Perth.
Mr Herbert advised the Tribunal that in 2009, Stage 1 Odour Control Works were completed in accordance with the Environmental Protection Act1986 (WA) Licence Odour Improvement Plan for the plant. This work was designed to reduce odour emissions (from the 2005 level) by 50%.
In early 2010, odour sampling was completed and the data collected was referred for odour modelling. It is expected that it will take at least a further three months to complete the necessary modelling and analysis for submission to the Department of Environment and Conservation.
In response to examination, Mr Herbert agreed that monitoring of the performance of the plant's tower biological and chemical odour scrubbers during the first half of 2010 demonstrated that odour emissions were, for the most part, contained within the limits prescribed by the licence requirements. There were, though, still some occasions when the limits were exceeded.
Mr Herbert confirmed that most, but not all, odour emanations generated by the plant were channelled through the tower scrubbers.
Questioned as to when any decision could be expected as to a conclusion on whether the WWTP odour buffer might be modified, Mr Herbert was unable to assist other than to state that it would be dependent on the outcome of the odour modelling process.
Mr Herbert advised the Tribunal that the plant has substantial capacity for additional waste water treatment.
The respondent's second witness, Mr A Trosic, a qualified town planner, provided town planning evidence to assist the review. Mr Trosic is employed as Manager of Strategic Planning at the City of Cockburn.
Mr Trosic explained that there is a history of the area surrounding the Woodman Point WWTP being affected by odours from the plant.
Mr Trosic drew attention to the Tribunal's earlier review, O'Brien, wherein a proposed structure plan over the area, including Lot 5, was refused permission to advertise on the basis that the area was within the odour buffer of the WWTP.
Under TPS 3, Lot 5 is zoned 'Development' and lies within DA5.
The provisions applicable to DA5 under Sch 11 of TPS 3 signify the need for an approved structure plan to guide subdivision and development but specifically excludes residential development within the buffer of the Woodman Point WWTP.
Mr Trosic identified that Lot 5 lies within the Woodman Point WWTP buffer as illustrated at Fig 18 of the LSP.
Mr Trosic described his consideration of the proposed structure plan in relation to relevant TPS 3 requirements at length.
The proposed structure plan, according to Mr Trosic was designed to permit a twolot residential subdivision and would have the effect of changing the status of the ancillary accommodation on Lot 5 Fawcett Road to a single house. The creation of a new residential title is, in effect, residential development/subdivision of the land.
Significant aspects of Mr Trosic's evidence include his observation that a proposed structure plan should 'extend to at least cover discrete and logical planning cells'. Further, Mr Trosic stated that he was 'of the view that having a proposed structure plan for a single lot does not demonstrate any degree of appropriate guiding of subdivision and development, much less comprehensive planning'.
The proposed structure plan does not show structure plan elements, such as proposed land uses and residential densities as required under cl 6.2.6.1(e) of TPS 3. Mr Trosic referred to advice from the WAPC on the proposed structure plan. The WAPC had expressed a view regarding the presumptuous nature of the proposal given that the land is within the 'Urban Deferred' zone under the MRS. The WAPC considered that the proposal would promote ad hoc residential subdivision in the 'Urban Deferred' zone contrary to the purpose and intent of the zone.
Given the circumstances as evidenced, Mr Trosic concluded that the proposed structure plan did not constitute orderly and proper planning in accordance with the requirements of TPS 3, and should not therefore be approved for advertising.
Under examination, Mr Trosic reaffirmed his view that the proposed structure plan, which would allow creation of a new residential title, constituted residential development. The present condition of Lot 5 was limited to a single residence and ancillary accommodation legally limited to occupancy by members of the family of the prime residence.
To allow the proposal would set an undesirable precedent that the presence of ancillary accommodation on a parcel of land might be a basis for justifying future subdivision. Such a circumstance would compromise the integrity of the City's future determination of applications for ancillary accommodation because of the possibility that it might lead to subdivision.
Mr Trosic was questioned as to the occurrence of residential development eastwards of Lot 5 but still within the boundary of the WWTP buffer. The development is evident from an aerial photograph submitted to the Tribunal. Mr Trosic explained that the development was within the MRS Urban zone and was consistent with TPS 3. The establishment of the Urban zone boundary and the Urban Deferred zone to the west, in which Lot 5 is situated, had been set by amendment to the MRS in 1997.

The applicant's argument

The applicant's argument in support of the application to advertise the proposed structure plan for Lot 5 was based on the following propositions:
1)The proposal is entirely different from that considered by the Tribunal in O'Brien.
2)The proposal is so minor as to be of no consequence to planning for the area.
3)The proposal meets the criteria of TPS 3 whereby a change to a nonconforming use could be allowed.
4)Recent monitoring of the WWTP indicates that there are no odour emissions impacting Lot 5 or surrounding lands.
5)The applicant is suffering financial hardship, in part as a result of being unable to realise expectations for the use of residential improvements built on the property.
6)The proposal reflects orderly and proper planning and therefore is suitable to advance to public advertising under the provisions of TPS 3.

Mr Michael Swift, a qualified and experienced town planner, gave evidence on behalf of the applicant. Mr Swift is a director of the firm Michael Swift and Associates, Town Planners Pty Ltd.
Mr Swift described preliminary discussions he had held with employees of the respondent and the Water Corporation as to the nature of the proposed structure plan and its suitability for proceeding to advertising. It was Mr Swift's belief that the officers were amenable to the proposal and it was for this reason that the application had been progressed in its present form.
Mr Swift advised that there was no technical bar to approval of a structure plan, subdivision or development under the Urban Deferred zone. In any case, the lifting of 'Urban Deferred' status could coincide with subdivision or development later in the process bearing in mind that the application is presently only at the pre-advertising stage.
Attention was drawn by Mr Swift to provisions of TPS 3 which signal the requirement for an approved structure plan prior to approval of subdivision or development, although cl 6.2.4.2 of TPS 3 does allow the local government, in certain circumstances, discretion to recommend subdivision or development approval in the absence of a structure plan. Mr Swift was of the opinion that there was an apparent conflict in the scheme and that it would be prudent to assume the more certain course of submitting a structure plan proposal.
Mr Swift was of the opinion that the existing residential use of Lot 5 in the WWTP buffer is a 'nonconforming use' as defined in s 172 of the Planning and Development Act 2005 (WA) (PD Act). Accordingly, progressing the structure plan through advertising would be consistent with an application for alteration to a nonconforming use under cl 4.9.3 of TPS 3.
Mr Swift argued that the proposed changes to 'nonconforming use' of the land matched the relevant criteria cited in cl 4.9.3 of being 'less detrimental to the amenity of the locality' and 'closer to the intended purpose of the zone'.
On the question of whether this proposal is consistent with orderly and proper planning, and distinct from the proposal previously considered by the Tribunal, Mr Swift argued that the presently proposed LSP is entirely different. The miniscule nature of change and very targeted approach proposed in the LSP ensure that there will be no disruption to the amenity of the area, to the provision of services and facilities or to the operation of the WWTP. The proposal will not frustrate or disrupt the implementation of future plans for the area, nor will it be susceptible to compromised amenity, health or safety associated with the operation of the WWTP.
To illustrate these points, Mr Swift drew attention to the following circumstances:
•The proposed subdivision to excise a small lot containing the existing primary residence reflects existing access and servicing arrangements with no changes required.
•Any complication associated with one additional ownership of land would be of no concern because there is no change to the status quo of built improvements on the land, and in any case the overall area is already very fragmented.
•The previously prepared context plan demonstrates how the proposed LSP co-ordinates with pre-planning for the area.
•If new owners need to be alerted to any issue regarding amenity, it is open to attach a memorial on title to that effect.
•The proposal does not create the opportunity for additional residents to move into the buffer area of the WWTP.
•Compliance with the operating licence conditions for the WWTP protects public amenity. Weekly reports measuring compliance with emission standards over a 5.5 month period during 20092010 demonstrated only three instances of very minor noncompliance. The Department of Environment and Conservation had not recorded any odour complaints from 19 May 2008 until 21 May 2010.
Under examination, Mr Swift emphasised the uniqueness of the proposal in that it addressed a problem relating to a particular arrangement of ancillary accommodation. No other examples of this nature occurred in the area. He did not agree that there was any detrimental precedent triggered for the area if the proposal was to proceed.
Asked if the proposed structure plan facilitated comprehensive planning of the area, Mr Swift responded that the proposal conformed with the requirements of TPS 3. Officers of the local government had supported the approach. He was aware of other circumstances in his experience where a structure plan prepared over a single lot had been acceptable.
Questioned as to whether the proposed structure plan provides for residential development, Mr Swift agreed that it does.
Mr Swift also acknowledged that the context plan accompanying the proposed structure plan has not been approved and has no particular status.
Asked what benefit might be derived from public advertising of the proposed structure plan, Mr Swift referred to the opportunity for the range of relevant authorities to consider the proposal and provide advice to the decision maker.
Mrs O'Brien, gave evidence on behalf of the owners of Lot 5.
Mrs O'Brien provided a history of residency on the property since purchase in April 2000, including the reasons and circumstances of building the ancillary accommodation on the land.
The ancillary accommodation is no longer occupied by members of the family.
Odour management of the WWTP has improved markedly and there have been no incidents of odour nuisance at Lot 5 since 2008.
Mrs O'Brien felt that the respondent had not acted fairly in respect of their application. Advice of previous officers of the respondent had not included reference to the WWTP buffer. The actions of the respondent to refuse advertising of the present application was inconsistent with earlier advice obtained from officers who have since left the employ of the respondent.
Mrs O'Brien asked that the Tribunal exercise its discretion to approve the application on its merits rather than rely on specific planning policy.
Commenting on the respondent's contention that there are only single dwellings on properties in the area, Mrs O'Brien pointed out that there are several duplex developments and four subdivided houses on 800 metre square blocks.
Mrs O'Brien advised that the local government's formally adopted position is that the buffer should be reduced to 500 metres and that the council supports residential development to the lake.
Mrs O'Brien expressed the view that if advertising is allowed at this juncture, a final decision on the proposed subdivision could coincide with completion of the anticipated odour study.
Circumstances of personal financial hardship for the applicants were described at length by Mrs O'Brien. Substantial expenses relating to the conduct of planning applications and appeals have compounded with other unforeseen personal financial costs, to the extent that there is a serious risk that the property will have to be sold to recoup costs. Mrs O'Brien conveyed that the hardship being experienced is both financially and emotionally devastating for her family.
Mrs O'Brien asked that the Tribunal consider the application with due regard to s 241(3) of the PD Act which allows discretion in the case of hardship.

Analysis of the issues arising

Two issues arise from the arguments presented:
1)Does the application satisfy the requirements of TPS 3 that it constitutes a structure plan that would be reasonable to advertise?
2)Are there changes to the nature and circumstances of the application, including grounds of hardship and planning context that would enable the Tribunal to arrive at a different conclusion from its decision in O'Brien?
Considering what should be expected of a structure plan, it is helpful that the common dictionary meaning of the term 'structure' is 'the arrangement of parts to make up a whole' (The Macquarie Dictionary (4th ed, 2005)). Hence 'structure plan' would reasonably be understood to mean a plan illustrating the arrangement of parts that make up a whole.
Examination of the text of TPS 3 appears to confirm that the commonly understood meaning of 'structure plan' is indeed what is intended by the scheme in so far as it applies to 'development areas'.
Under cl 6.2.2, the purpose of development areas are to:
(a)identify areas requiring comprehensive planning; and
(b)coordinate subdivision and development in areas requiring comprehensive planning.
The expressions 'comprehensive planning' and 'coordinate subdivision and development in areas requiring comprehensive planning' signify an intention for planning of development areas to be conducted at a scale that involves either the whole area or at least a substantial part thereof. It would be very difficult to imagine that comprehensive planning of a development area could be achieved by anything other than a plan for at least a substantial part of that area.
Clause 6.2.5.2 states that a structure plan may be prepared for all or part of a development area. In this regard, the reference to a 'part of a development area' should be read in the context of cl 6.2.6 of TPS 3 and its references to what a structure plan should comprise. The lists of structure plan components, involving neighbourhoods, commercial centres, street block layouts, street networks and transportation corridors, land uses, schools, community facilities, parklands and urban water management areas, strongly suggests that the structure plan should apply at a scale where these components can be comprehensively planned.
The applicant contended that the proposed structure plan apparently satisfied the requirements of officers of the respondent when put to them in 2008.
However, the Tribunal is unable to give this proposition any weight because of its hearsay nature and because whatever those opinions of the day were, they do not ultimately represent the position of the respondent in determining the application.
The applicant has submitted a proposed structure plan that is deliberately minimal in its purpose and consequentially is almost totally devoid of any of the planning components required for comprehensive planning of the development area as described in cl 6.2.6.
The fact that it was seen as appropriate to submit a supplementary, wider scale context plan to illustrate a possible coordination of planning elements, demonstrates the shortcomings of the actual structure plan.
On the other hand, the respondent argued that the proposed structure plan only applies to a single lot in the DA5 Development Area. There are 17 or more lots in the area which should comprise the structure plan precinct. The proposed structure plan fails to coordinate subdivision and development of the overall area.
The question arises also as to the purpose of advertising the proposed structure plan. The minimal scale and purpose of the plan and therefore its lack of immediate relevance to adjoining landowners would seem to render public advertising somewhat pointless. In other circumstances, for limited scale proposals such as this, normal referral to affected public instrumentalities would achieve the necessary opportunities for tendering advice and comment to the responsible authority.
In summary, it is apparent that the proposed structure plan:
•fails to conform with a reasonable understanding of the purpose of a structure plan;
•does not comprise the expected planning elements of a structure plan as required by TPS 3;
•would not achieve the purpose of comprehensive planning and coordinating subdivision and development in development areas as required by TPS 3; and
•would achieve little or no benefit by its public advertisement.
Turning to the second issue as to whether changes to the nature and circumstances of the application including grounds of hardship and planning context would lead to a different conclusion than that arrived at in O'Brien, the applicant has argued that this is the case for three reasons.
Firstly, the application comprises a different structure plan to effect a simple subdivision and residential development with minimal consequence in respect of any impact on services, environment and future planning for the area. An approval of the application would be consistent with an alteration of nonconforming use as provided for under TPS 3.
Secondly, the circumstances surrounding the application have changed in that improvements to the Woodman Point WWTP odour emissions controls since 2008, have resulted in conditions that odour nuisance is now negligible and that there is a reasonable prospect that the odour buffer could and should be modified to allow residential development of the area.
Thirdly, the applicant has demonstrated an untenable level of financial hardship, such that the Tribunal should exercise a favourable discretion of its powers under s 241(3) of the PD Act.
Contrary to these submissions, the respondent has argued that there is no fundamental change to the substance of the matter as previously considered in O'Brien. The land within the structure plan is still within the buffer. The provisions of TPS 3 have not changed. Analysis and modelling of odour emissions to review the WWTP buffer are still in progress and will not be completed before completion of this review.
Considering these arguments, it is instructive to turn firstly to the previous decision of 2008. In that decision, the Tribunal found that:
... the proposed structure plan was inconsistent with orderly and proper planning, having regard to the odour evidence, not because of the time involved in the process advised by the EPA, but because the formulation of the structure plan in the first place should be informed by the outcome of that process. The process will indicate whether the buffers on Figure 18 of the LPS will move and, if so, in which direction and to what extent. The structure plan proposing residential development in the proposed structure plan area is premature until the outcome of the process is known. (O'Brien at [74].)
The Tribunal made no judgement as to the qualitative aspects of the structure plan. That is, no reference to its composition, scale or planning merits was made. The decision of 2008 is based solely on the consideration of an orderly and proper planning process.
The applicant has suggested that the minimal scale of the presently proposed structure plan should differentiate it from the previous application, but based on the argument quoted above, such a distinction would be untenable and contradict the previous finding.
The applicant has acknowledged that the proposed structure plan is designed for the purpose of residential development, but that it is inconsequential to servicing, environmental considerations and future planning for the area. Because the nature of the application, seeking to divide a dwelling from a balance portion of land containing ancillary accommodation, is unique in circumstance, the proposal would not cause any issue of undesirable precedence.
The Tribunal is not satisfied, however, that the proposal is inconsequential. An approval of a structure plan for a single lot, such as this case, is, in the Tribunal's view, likely to raise expectations that further applications for approval of similar scale structure plans for low key residential development on individual lots in the locality could occur. Whilst there may be variations in the reasons behind future applications and varied degrees of merit, there is nevertheless a high degree of homogeneity of property character in the area, such that an approval of subdivision now, could well be an undesirable signal and precedent for further ad hoc subdivision and fragmentation of an area, otherwise identified under TPS 3 for comprehensive planning.
Additionally, the Tribunal concurs with the respondent's concern that an approval of subdivision would set another form of consequence in undermining the integrity of the local government's discretion to allow ancillary accommodation on a property, without the risk of that approval being used as a means of entitlement to future subdivision of the land.
The applicant's contention that the proposal is consistent with an alteration of nonconforming use under TPS 3 rests on the proposition that residential use is nonconforming in the Development zone because residential development is excluded in the WWTP buffer area. It is not clear how the principles affecting alteration of a nonconforming use affect the subdivision of the land proposed in this application, but in any case there is some difficulty with the argument because, in fact, the erection of a single house is a permitted development in the Development zone (cl 8.2.1(i) of TPS 3). Residential use is permitted in the zone and is therefore a conforming use. It would appear from this circumstance that the nonconforming use provisions of the Scheme would not be relevant.
The applicant argued that circumstances are changed from 2008 in that odour emissions are now negligible and that there should be a modification of the WWTP odour buffer. The applicant relied on recent data demonstrating compliance with operating licence standards and records showing an absence of nuisance complaints.
The Tribunal accepts the evidence that system modifications and management of the WWTP has shown improvement of the control of emissions.
The improvements may well illustrate that a review of the odour buffer could be contemplated, but at this point, the Tribunal notes that further rigorous process is still required in order to reach a considered and safe conclusion. This process, involving odour modelling and analysis, is necessary and has been identified as such to the parties to this review since 2008.
The Tribunal is aware that the Woodman Point WWTP is a major service facility fundamentally important to the urban infrastructure needs of the southern metropolitan area. It will have an ongoing function and a likelihood of greater demands for waste water treatment service in coming years. In the circumstances, it is important not to anticipate a reduction of its buffer requirements prematurely in the absence of sound, sciencebased reasoning. That reasoning is not yet to hand. In this regard, circumstances have not changed from the O'Brien review.
Summarising the analysis of the issues at this point it is clear to the Tribunal that:
1)the application does not satisfy the requirements of TPS 3 that it constitutes a structure plan that should be advertised; and
2)there are no changes to the objective circumstances pertaining to the application for review that warrant reaching a different conclusion to that reached in O'Brien.
The final consideration of this analysis relates to the applicant's submission regarding financial hardship.
The Tribunal acknowledges and accepts that the applicant is enduring financial hardship.
The relevant provision of the PD Act, s 241(3) provides that the Tribunal may have regard to claims of hardship when determining an application for subdivision of a lot into not more than three lots. Such regard must not, however, affect the application of sound planning principles.
In effect, the latitude afforded to the Tribunal exercising a discretion, having regard to a claim of hardship, is limited within the parameters of sound town planning practise. It is therefore not open to the Tribunal to determine in favour of a proposal that is contrary to the interests of orderly and proper planning, which would not, of course, accord with sound planning principles.
It has already been demonstrated in the course of this review that the proposed structure plan does not constitute a structure plan that should be advertised. It has also been demonstrated that other circumstances have not changed such that a different conclusion should be reached from that determined by O'Brien. For these reasons the application is contrary to the interest of orderly and proper planning.

There is, therefore, no latitude for the Tribunal to exercise a favourable discretion with regard to the claim of hardship.

Conclusion

Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse advertising of the proposed Structure Plan for Lot 5 Fawcett Road, Munster should be dismissed.

Order

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 3 September 2009 to refuse advertising of the proposed Structure Plan for Lot 5 Fawcett Road, Munster is affirmed.

I certify that this and the preceding [123] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER