OLIVER and WESTERN AUSTRALIAN PLANNING COMMISSION - [2007] WASAT 180

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: OLIVER and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 180

MEMBER: MR L GRAHAM (SENIOR SESSIONAL MEMBER)

HEARD: 10 MAY 2007

DELIVERED : 9 JULY 2007

FILE NO/S: DR 45 of 2007

BETWEEN: JANINE OLIVER
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town Planning - Application for subdivision - On-site effluent disposal – Undesirable precedent – Variation to minimum lot size requirements – Small infill and remote and isolated discretionary provisions – Outline development plan – Meritbased argument

Legislation:

Planning and Development Act 2005 (WA), s 251(3), s 241(1)
Residential Design Codes of Western Australia (2002), cl 3.1.3, cl 3.1.3A 3(ii), Table 1
Shire of York Town Planning Scheme No 2, cl 4.3.3, cl 4.4(a), cl 4.8.2, cl 4.8.3
State Administrative Tribunal Act 2004 (WA), s 29(3)(c), s 31

Result:

The application for review is upheld

Category: B

Representation:

Counsel:

Applicant: Mr H Dykstra (Acting as Agent)
Respondent: Mr M Logan

Solicitors:

Applicant: Dykstra Planning (Town Planners)
Respondent: Western Australian Planning Commission

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

A & SJ Missikos and JR & R Gonzalez v Western Australian Planning Commission [2001] WATPAT 09
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Hart and Anor and Western Australian Planning Commission [2007] WASAT 114
Marshall v WA Planning Commission (1985) 12 SR (WA) 170
Weir, R and Anor v Western Australian Planning Commission [2003] WATPAT 066

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application for review was lodged against a decision of the Western Australian Planning Commission to reiterate its earlier decision to not allow the subdivision of the subject land at 6 Lincoln Street, York into two lots of 1727 square metres each.
The Tribunal examined the respective arguments of the parties, the background to the matter, the legislative and policy provisions, the suitability of the soils for on-site effluent disposal and matters of precedent and streetscape.
Although the Tribunal acknowledged that the proposed subdivision was not strictly in accordance with the General Site Requirements of the Residential Design Codes of Western Australia (2002), it determined that other considerations were sufficiently compelling to justify some flexibility and an approval.
The Tribunal did not accept that an approval would lead to an undesirable precedent in the locality, as the circumstances of this case would be unlikely to be replicated elsewhere.
Also, the Tribunal determined that an approval would not jeopardise the long term planning of the area bounded by Lincoln Street, Panmure Road, New Street and Newcastle Street.
The application for review was upheld, subject to conditions.

Introduction

The application for review, dated 1 February 2007, was lodged by Dykstra Planning on behalf of Ms Janine Oliver (applicant) against a decision by the Western Australian Planning Commission (respondent) on 9 January 2007 to reiterate its original refusal of 1 September 2006 to not allow the subdivision of the subject land at 6 Lincoln Street, York.
The application for review was made under the provisions of s 251(3) of the Planning and Development Act 2005 (WA).
In its original reasons for refusal the respondent advised:
"1.The proposed subdivision does not comply with Commission Policy DC 2.2 – Residential Subdivision, by reason that the land cannot be connected to reticulated [sewerage], as required by the Country Sewerage Policy of the Water Corporation, and does not meet any of the criteria of that policy to warrant an exemption from the requirement to connect to reticulated sewerage.
2. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
In seeking a review the applicant argued on the following broad grounds:
(a) The proposal, to create two lots of 1727 square metres each, meets the "Small Infill" and "Remote or Isolated Subdivision" provisions of the "draft" Country Sewerage Policy.
(b) An approval would not set a precedent for the further subdivision of surrounding lots.
(c) The site is able to comply with the on-site effluent disposal requirements of the Department of Health.

The subject land

The subject land can be described as Lot 11 on Diagram 83201 and is contained on Certificate of Title Volume 1940 Folio 956. It was created on 15 September 1992 by way of an amalgamation of two equal size lots (Lots 53 and 54) of 1727 square metres each.
The subject land, at 3454 square metres, is located on the south side of Lincoln Street with a frontage of 55.67 metres and a depth of some 62 metres.
The property is located within the York townsite east of the Avon River. It falls within the street block bounded by Lincoln Street (north), Panmure Road (east), New Street (south) and Newcastle Street and McCarthy Place (west).
There are 33 lots within the street block with the six lots fronting Lincoln Street and Panmure Road (including the subject land) ranging in size from 1300 square metres to 4270 square metres. The middle portion of the street block contains nine lots ranging in size from 7227 square metres to 16 289 square metres, with the remaining lots to the south ranging in size from 950 square metres to 3996 square metres.
On the north side of Lincoln Street there are five lots ranging in size from 2000 square metres to 3157 square metres.
There is an existing residence located on the east side of the subject land and, from information shown on an aerial photograph made available in evidence to the Tribunal, it would appear that there are several outbuildings also. The site appears to have a number of trees and shrubs; particularly on the western two‑thirds of the property.

The legislative framework

The subject land is zoned "Residential" under the Shire of York Town Planning Scheme No 2 (the Scheme or TPS 2). It has a density coding of R5.
Of relevance in this matter is the Planning and Development Act 2005 (PD Act), the Western Australian Planning Commission's Policy DC 2.2 – Residential Subdivision (DC 2.2), a "draft" Country Sewerage Policy of September 2002 (DCSP), the Residential Design Codes of Western Australia (2002), (Codes) and the Panmure Road Precinct Outline Development Plan (ODP).
As the Codes were prepared as a State planning policy, the Tribunal is required, under s 241(1) of the PD Act, "to have due regard" to them as they specifically affect the application.

Respondent's position

The position of the respondent is outlined in a Statement of Issues, Facts and Contentions dated 26 April 2007. It contends:
(a)There is non-compliance with the minimum lot size and frontage requirements of the Codes.
(b)There is non-compliance with cl 3.1.3 of the Codes, cl 3.2.3 of DC 2.2 and the relevant provisions of the Scheme.
(c)The proposed subdivision does not satisfy the "Small Infill" criteria or any other exemption under the mandatory sewerage requirement of cl 5 of the DCSP.
(d)The fact that the subject land was previously subdivided into two 1727 square metre lots does not create a precedent as the proposed subdivision does not comply with current policies.
(e)There is considerable potential for the proposed subdivision to create an undesirable precedent in the locality.

Applicant's position

The position of the applicant is outlined in a Statement of Issues, Facts and Contentions dated 3 May 2007. It argues:
(a)Although it is acknowledged that the proposal does not strictly comply with the minimum lot size (2000 square metres) or frontage (30 metres) requirements for an R5 density coding under the Codes, or the site area variations under cl 3.2.3 of DC 2.2, this should not preclude an approval on the basis of planning merit.
(b)The proposal satisfies the "Small Infill" criteria of the DCSP as confirmed by the Department of Health, and the proposal can be considered as occurring in a "remote and isolated" location as defined by the DCSP.
(c)The fact that the subject land previously existed as two lots is not an insignificant consideration.
(d)Given the unique circumstances applicable to the application, it could not be argued that an approval could be replicated elsewhere, and thereby create an undesirable precedent.

Planning issues

The principal planning issues are:
(a)Does the proposal accord with State planning policy and local scheme provisions?
(b)Is subdivision justified on the merits of the argument?
(c)Would subdivision of the subject land be likely to create an undesirable precedent in the general locality?

Assessment of proposal

Background

The subject land previously existed as two lots (Lots 53 and 54). These were created on 21 August 1981.
On 18 August 1992, an amalgamation of Lots 53 and 54 was approved to create existing Lot 11. The owner at the time was recorded as AJ Potter.
On 2 June 2006, an application from John Bullock and Associates was lodged with the respondent to subdivide the subject land into two lots of 1727 metres each. In other words, it was proposed to revert back to the pre-August 1992 subdivisional pattern.
On 4 September 2006, the proposed subdivision was refused by the respondent.
On 3 October 2006, a request for reconsideration was lodged with the respondent by Dykstra Planning. This request was refused on 9 January 2007.
On 1 February 2007 the application for review was lodged with the Tribunal.
At a directions hearing on 21 February 2007, the respondent was invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) and did so on 3 April 2007. It resolved to reiterate its decision to refuse the application.
The matter proceeded to a formal hearing on 10 May 2007.

Legislative and policy provisions

Shire of York Town Planning Scheme No 2

Under TPS 2, the density coding applicable to the subject land is R5 which, as provided for under Table 1 (General Site Requirements) of the Codes, would allow for a minimum site area per dwelling of 2000 square metres and a minimum frontage of 30 metres.
Under cl 4.3.3 it states:
"Unless otherwise provided in the Scheme the development of land for any residential purposes dealt with by the [Codes] shall conform to [the] provisions of those Codes."
Under cl 4.4(a), which deals with the special application of the Codes, it states:
"(a)the local Government may permit an increase from R10 up to a maximum of R30 for land in the Residential zone with dual R10/30 coding where:
(i) adequate connection to reticulated sewerage is available; … "
A reasonable interpretation of this clause is that the Shire will not insist on reticulated sewerage below R10; such as exists on the subject land at an R5 coding. However, it is the respondent, and not the Shire, who determines the conditions of subdivisional approval.
Clause 4.8.2 provides that site requirements in the Residential zone are in accordance with the Codes.
Under cl 4.8.3 (Development Requirements) it states:
"In the Residential zone the local government may require preparation of an Outline Development Plan before granting and/or recommending approval to any development which involves subdivision or follows subdivision and the Outline Development Plan shall form the basis for subdivision …
(d)The local government may decide not to proceed or may submit the Outline Development Plan to the Commission together with the submissions and request the Commission to adopt the plan submitted as the basis for approval of subdivision within the area covered by the plan … "
The subject land falls within the Panmure Road Outline Development Plan area but, at the time of the hearing, had yet to be formally adopted by the Shire and submitted to the respondent for approval.

WAPC Policy DC 2.2 – Residential Subdivision

Under cl 3.2.1 it states:
"Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land ... "
The circumstances under which a variation below the minimum and average requirements specified in Table 1 of the Codes may be considered is specified in cl 3.2.3; namely, where:
"•the minimum lot size variation only applies to one lot in the subdivision;
•the variation reduces the area of that one lot by no more than 5% of the minimum area specified in Table 1 or elsewhere in the Codes;
•the variation in the area of that one lot reduces the average lot size specified in Table 1 or elsewhere in the [Codes]; and
•the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the Commission forms the opinion that it will have a particular beneficial outcome for the community."
In the statement of evidence dated 7 May 2007 of Mr Thomas Della Vedova, a qualified town planner for the respondent, he argues that the proposed subdivision would, at 1727 square metres, require a 13.65% variation to the 2000 square metre minimum lot size requirement of the Codes. Also, that at 27.83 metres, the lot frontage would be 7.2% below the minimum 30 metres specified in the Codes.
In the witness statement dated 3 May 2007 of David Anthony Maiorana, a qualified town planner for the applicant, he argues that cl 3.2.1 allows for considerations over and above the specifics of cl 3.2.3 to be taken into account in determining an application for subdivision.
A matter of some relevance is that in its reasons for refusal, the respondent referred to DC 2.2 as requiring land to be connected to sewerage under the Country Sewerage Policy, and that the proposal did not meet any of the criteria to warrant an exemption.
Under DC 2.2, it makes specific reference to country areas in this way:
"3.3.4 Similarly, outside the metropolitan region, the Commission will have regard to the Country Towns Sewerage – Subdivision Policy of the Water Corporation of Western Australia which specifies those towns, or parts of towns, where the provision of sewerage is mandatory for new subdivisions, together with exceptions."
Although there is no specific reference to DCSP in cl 3.3.4, the Tribunal interprets the clause to cover the most recent "draft" or "finalised" policy document relating to the provision of sewerage, and any exemption provisions contained within the document.

Draft Country Sewerage Policy

In the statement of evidence of Mr Della Vedova, he advises at his [24]:
(a)The DCSP was adopted by the Water Corporation on 11 January 2002.
(b)The DCSP has not been formally adopted by the respondent but had been used consistently by it since 1999 when it was first introduced.
(c)The DCSP forms part of a recognised decision-making framework and is a seriously entertained planning proposal.
The examination of the DCSP (as amended in September 2003) reveals that "The Department of Health is the Government agency with primary responsibility for administering the Policy, as the principal agency responsible for supervising and regulating onsite wastewater systems."
The objectives of the policy are contained in cl 1:
"•to protect public health;
•to protect the environment and the State's water resources;
•to reduce the extent of reticulated infill sewerage required in already developed areas and cost to the community in providing it;
•to provide flexibility in the control of subdivisions or density developments for which reticulated sewerage is unlikely to be available for some time; and
•to foster regional development, by being integrated with regional development objectives."
Of importance in this review are the discretionary provisions contained in cl 5 relating to "Small Infill" subdivision and "Remote and Isolated" subdivision:
"The only exceptions to the requirements for provision of reticulated sewerage are as set out below:
5.1Small Infill
Proposals for small infill or density development can be considered where there is no potential for the creation of more than four additional lots, dwellings or single residential equivalents in the immediate vicinity (generally interpreted as within the street block), so that the proposal completes rather than extends an existing pattern of subdivision. Lot sizes and land use shall be consistent with the existing pattern of subdivision or development …
5.3Remote and Isolated Subdivision or Remote and Isolated Residential Development
Proposals in remote and isolated locations may be supported, depending on the nature of the site and the wastewater disposal arrangements chosen, and subject to:
•the development being a maximum density of R10 and no more than 25 lots or dwelling units in total;
•the overall objectives of the policy not being compromised; and
•the statutory authority being satisfied, after considering the advice of consultative authorities, that the intended wastewater disposal arrangements are acceptable … "
In his statement of evidence, Mr Della Vedova argues:
(a)the proposed subdivision does not satisfy the "Small Infill" criteria of cl 5.1 as there is the potential to create an additional 36 lots in the street block (not including the subject land) and based on the R5 coding; and
(b)the proposed subdivision cannot be considered under the provisions of cl 5.3 (Remote and Isolated Subdivision … ) as the subject land falls within the York townsite and there is already a reticulated sewerage service in sections of the townsite.
In his witness statement, Mr Maiorana argues:
(a)the proposed subdivision is able to comply with the "Small Infill" criteria as the proposal COMPLETES rather than EXTENDS an existing pattern of subdivision; and
(b)the proposal complies with the provisions of cl 5.3 as the timeframe for extending the sewer to the subject land is a long-term proposition.
Of interest in this matter is the initial and the subsequent response of the Department of Health.
The initial response, dated 21 August 2006, advised:
"The proposed lot sizes of 1727 [square metres] do not meet any criteria to warrant consideration for exemption from the mandatory sewer condition of the Country Sewerage Policy. Accordingly, the Department does not support the proposal unless reticulated sewerage is available."
However, in the subsequent response of 22 December 2006, the Department of Health replied:
"Based on further information provided by the applicant the proposal is considered to meet the 'infill criteria' of the Country Sewerage Policy.
Furthermore, the on-site disposal of wastewater on the proposed lot is considered achievable given the information provided in the site report prepared by Bayley Environmental Services … "
The view of Mr Della Vedova on this matter is expressed in his Statement of Evidence :
"29. Further, it is my opinion that the Department of Health's ... determination that the proposed subdivision 'is considered to meet the infill criteria' is incorrect, given that there is the potential for more than four additional lots to be created in the street block."

Outline development plan

In the officer report to Council, dated 3 February 2007, the following points are made:
(a)the Panmure Road Precinct has been depicted in the Local Planning Strategy as an area suitable for further subdivision. The area is currently developed for residential purposes on the property, leaving large unused lots in the centre of the precinct;
(b)the ODP proposes a development layout suitable for R5 (2000 square metre) lots without sewerage, with the potential for further subdivision to R10/30 if and when a reticulated sewerage system is available;
(c)wherever possible the existing lot boundaries have been acknowledged; thereby minimising the need for land amalgamations;
(d)a Scheme amendment is not required at this time but may be considered when deep sewerage is available;
(e)the principles of cost sharing will apply so that each landowner/developer is treated fairly and equitably.

The "draft" ODP, dated February 2007, makes the following additional points:
(a)the Precinct is well located for more residential development in relation to the town centre and availability of services;
(b)even without deep sewerage the number of residential lots could increase to over 55 from the current 29;
(c)the provision of sewerage would allow further development if the land was coded R10/30;
(d)wherever possible the ODP uses existing lot boundaries, allowing individual lot owners to subdivide;
(e)subdivision and development shall generally be in accordance with the ODP;
(f)developers shall contribute 10% of the net subdividable area as public open space or the local authority may accept a cash-in-lieu contribution. Further contributions are required for roads and drainage or on a pro rata basis.
An examination of the "draft" ODP at Figure 3 shows an indicative subdivision, with the subject land being subdivided as proposed.
However, the respondent's view is that the proposal does not comply with the ODP as it does not meet the lot size and frontage requirements for an R5 coding.
The position of the applicant is that the "draft" ODP contemplates subdivision as proposed.

On‑site effluent disposal

In a report, dated 7 November 2006, prepared by Bayley Environmental Services for the applicant on the capability of the subject land for on-site effluent disposal, it advised:
(a)site investigations reveal that the soils of the proposed new lot (western half of subject land) have adequate infiltration capacity for effluent disposal via either a septic system with an ETA (evaporation – transpiration – absorption) bed or an ATU (aerobic treatment unit) with subsoil irrigation; and
(b)the other site characteristics (including slope, absence of shallow groundwater, rock and heavy clay) are suitable for on-site effluent disposal.
The following exchange took place at the hearing between Senior Sessional Member Graham and Mr Logan for the respondent:
"Mr Graham:
Just on that point does the respondent have an issue as far as the information on on-site effluent disposal is concerned; in other words, are you challenging whether that would, if the subdivision was to be approved, be a problem? Is that being challenged by the respondent?
Mr Logan:
No. We don't challenge the ability of the property per se from accommodating a suitable on-site system."
Based on evidence before it, the Tribunal accepts the suitability of the soils on the subject land for on-site effluent disposal.

The matter of precedent

In the statement of evidence, Mr Della Vedova argues:
(a)the fact that the subject land was previously subdivided in 1981 as now proposed again after amalgamation does not create a precedent to be followed. The planning framework has significantly changed since 1981, and the proposal does not comply with current policies;
(b)an approval would create an undesirable precedent for the subdivision of other land in the locality that does not satisfy the minimum site area requirements of TPS 2;
(c)although the Codes provide for flexibility in designating lot sizes, the degree of flexibility sought would set an undesirable precedent and constitute a departure from orderly and proper planning; and
(d)an approval would create a precedent for the remaining 10 lots in the subdivision which are greater than 4000 square metres. These 10 lots have a combined potential to create an additional 36 lots.
In his witness statement, Mr Maiorana argues:
(a)the background to this matter, whereby original Lots 53 and 54 were amalgamated in order to reduce rates payable on the property, was undertaken on economic rather than planning or environmental grounds; and
(b)it could not be argued, based on precedent, that similar circumstances would be replicated elsewhere.
In the view of the Tribunal, the matter of precedent is about the effect of a favourable decision for the applicant influencing further subdivision decisions within the street block.
However, the issue is also to do with a favourable decision being used as a precedent by others outside the street block to create lots of less than 2000 square metres in an R5 zone. This point was emphasised by Mr Della Vedova is his evidence.
In Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) , it states:
"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 application[s] being made for similar kinds of development, should not be a reason why the appeal should be dismissed."
That is the approach adopted by the Tribunal in this review where the merits of the respective arguments, including the matter of precedent, are weighed against each other in reaching a decision.

The matter of streetscape

The matter of streetscape was addressed by Mr Maiorana in his witness statement in the context of a new dwelling being built on the proposed new vacant lot:
"In my opinion, this would result in a good planning outcome in terms of further establishing an appropriate degree of uniformity within the streetscape, in terms of the placement of dwellings and width of lot frontages."
This matter was not explored to any great degree by the respondent, and will carry little weight in this review.

Conclusions

The application for review was lodged against a decision of the respondent to reiterate its earlier decision to not allow the subdivision of the subject land at 6 Lincoln Street, York, into two lots of 1727 square metres each.
In undertaking the review, the Tribunal has examined the arguments of both parties, the background to the matter, the legislative and policy provisions, the suitability of the soils for on-site effluent disposal and matters of precedent and streetscape.
The position of the respondent is that the proposal is non-compliant with the relevant provisions of the Codes, Policy DC 2.2, TPS 1 and the DCSP and that an approval would create an undesirable precedent in the locality.
The position of the applicant is largely a "merit based" argument whereby the departures from the strict provisions of the Codes, DC 2.2 and TPS 1 are acknowledged but they are put to one side in favour of the broader provisions of the statutory and policy documents, and the overall merits of the proposal.
However, the applicant also argues that the proposal does meet the discretionary provisions of the DCSP in terms of the "Small Infill" and "Remote and Isolated" exemption provisions, and that the land was previously subdivided into two 1727 square metre lots prior to its amalgamation in August, 1992.
The applicant also contends that the particular circumstances surrounding this subdivision are unlikely to be replicated elsewhere, and as such, would not create an undesirable precedent.
With respect to the Codes, the Tribunal is required to give them considerable weight but that does not mean to the exclusion of other considerations. As explained in Marshall v WA Planning Commission (1985) 12 SR (WA) 170, the Codes do not of themselves govern the outcome of an application for subdivision.
What we are looking at here are the specific requirements of the Codes, as set down in "Table 1 – General Site Requirements", as opposed to its broader provisions whereby the respondent is able to approve subdivision below the minimum size.
As explained in the Codes:
"There are three common circumstances in which it is helpful to clarify the relationship between the Codes and subdivision. Firstly, where the Commission approves subdivision of a lot that is below the minimum size, that lot may nevertheless be developed with a Single House. This provision is at 3.1.3 A3(ii) in Element 1."
This provision (cl 3.1.3 A3(ii)) is separate from that contained in the Performance Criteria (cl 3.1.3), where a 5% variation in the minimum lot size is allowed, and provides for circumstances contemplated by the proposal under review where the subdivision excises an existing Single House lot and creates a new lot below the minimum lot size (2000 square metres) for a Single House.
This matter of flexibility in the Codes is taken further in Weir, R and Anor v Western Australian Planning Commission [2003] WATPAT 066:
"The R Codes and current WAPC Policy provide a degree of flexibility to allow a variation to the standards prescribed. In my view that flexibility does not extend to a variation in standards that would amount to abandonment of those standards. The WAPC (and the Tribunal) should not accede to a proposal that would effectively ignore standards that have been developed through insightful and well-reasoned research and community involvement ... "
Again, in A & SJ Missikos and JR & R Gonzalez v Western Australian Planning Commission [2001] WATPAT 09 it states:
"Whilst we do not suggest that a departure from the minimum average lot sizes prescribed by the R Codes for the purpose of a subdivision application would not be made by the Commission (and thus the Tribunal on appeal) in appropriate circumstances, we are of the view that a departure from the requirements for the area under the relevant Town Planning Scheme should only be made where some compelling reason exists. There is otherwise the potential for existing planning controls to be gradually subverted without the benefit of consultative processes necessary to bring about scheme amendment."
In the view of the Tribunal, the Codes do provide for flexibility, but the important question is whether the circumstances in this case are sufficiently compelling to support the variation to the minimum lot size being sought.
Of interest are the discretionary provisions of the DCSP. In this case, the Tribunal cannot accept the applicant's argument that the proposal falls under the "Remote and Isolated" exemption provisions.
As outlined in Hart and Anor and Western Australian Planning Commission [2007] WASAT 114 , the York 2A infill sewerage program is scheduled south of New Street in 2008/2009. New Street borders the street block in which the subject land is contained, and so it can hardly be construed that the subject land is remote and isolated. However, the "Small Infill" exemption provisions are another matter.
As explained in [53] above the Department of Health has shifted its position and now believe that the proposal accords with the "Small Infill" exemption provisions. Just why this is so is not entirely clear, but it may be based on an interpretation of the words:
" … the proposal completes rather than extends an existing pattern of subdivision. Lot sizes and land use shall be consistent with the existing pattern of subdivision or development."
In examining the subdivision proposal, the Department of Health may have determined that those lots fronting Lincoln Street are a sub-set of all lots in the street block and could be considered separately. There is however no information before the Tribunal to confirm this assumption.
However, in examining the lots fronting Lincoln Street, we see that Lot 55 immediately to the west of the subject land is 1726 square metres and Lots 56 and 57 immediately to the east are 1302 square metres and 1301 square metres respectively. Further to the west is lot 51 at 4270 square metres.
In an overall context, the following applies:
(a)There are flexibility provisions in the Codes under cl 3.1.3 A3(ii) to allow a variation to the minimum lot size as currently being sought.
(b)The subdivision, if approved, would simply revert back to that which previously existed between 1981 and 1992.
(c)There is agreement between the parties on the suitability of the soils for on-site effluent disposal.
(d)The proposed subdivision accords with the indicative subdivision in the "draft" ODP. The Tribunal would acknowledge though that at the time of the hearing into this matter, the "draft" ODP had not reached the point of being a seriously entertained planning proposal. That is, the indicative subdivision may or may not become part of the "final" ODP.
An important matter is that of precedent, and the Tribunal would concur with the applicant's view that the specific circumstances surrounding this case, as outlined in [21(d)] above, are unlikely to be replicated elsewhere.
A further point is that there is no infill sewerage program contemplated within the Panmure Road Precinct in the short to medium term. This is in contrast to the land immediately south of New Street which falls within the York 2A infill sewerage program.
In other words, an approval in this instance will not put the State's infill sewerage program at risk. If at some future time the York 2B infill sewerage program comes into effect over the Panmure Road Precinct, then further subdivision of the subject land would be a possibility; particularly if the statutory processes eventually lead to an R10/30 coding. Subdivision at this time is therefore unlikely to jeopardise the long-term planning of the area.
The application for review is upheld, subject to conditions.

Orders

For the foregoing reasons, and in accordance with s 29(3)(c) of the State Administrative Tribunal Act 2004 (WA), the orders of the Tribunal are:
1.The application for review is upheld, subject to the following conditions:
(a)Suitable arrangements being made with the local government for the provision of vehicle crossover(s) to service the lots being shown on the approved plan of subdivision. (Local Government)
(b)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation. (Local Government)
(c)The applicant/owner of the land shall make arrangements to ensure that the prospective purchasers of the proposed lots are advised in writing that provision of a reticulated sewerage service will not be available to the lot and all future dwellings on the lot will need to be connected to an on-site effluent disposal system. (Local Government)
(d)Suitable arrangements being made with the Water Corporation, including the provision of land (for plant and works), easements and/or the payment of financial contributions towards infrastructure as may be necessary so that provision of a suitable water supply service will be available to the lots shown on the approved plan of subdivision. (Water Corporation)
(e)Arrangements being made to the satisfaction of the Western Australian Planning Commission, and to the specification of Western Power, for the provision of an underground electricity supply service to the lots on the approved plan of subdivision.
(f)If an existing aerial electricity cable servicing the land the subject of the approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements being made for the removal and relocation of the cable. (Western Power)
I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SENIOR SESSIONAL MEMBER