Penfold and Western Australian Planning Commission - [2009] WASAT 69

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PENFOLD and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 69

MEMBER: MR P McNAB (MEMBER)

HEARD: 5 NOVEMBER 2008

DELIVERED : 6 MARCH 2009

FILE NO/S: DR 315 of 2008

BETWEEN: RAYMOND DOUGLAS PENFOLD
IRENE MAY PENFOLD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Two lot subdivision Rural residential land - Land coded R2.5 Scheme requiring that the use or development of land for any of the residential purposes dealt with by the Residential Design Codes of Western Australia (2008) was to conform to those Codes Minimum site area per Table 1 of Residential Design Codes of Western Australia (2008) for R2.5 code not met Whether subdivision capable of approval Whether appropriate to depart from Residential Design Codes of Western Australia (2008) and other policies 'Rounding off' subdivision and allotment pattern put forward by applicants - Substantial weight to be given to planning framework - Planning framework did not favour further subdivision - No circumstances justifying departure from planning framework - Application dismissed

Legislation:

Planning and Development Act 2005 (WA), s 138, s 138(2), s 241(1)
Residential Design Codes of Western Australia (2002)
Residential Design Codes of Western Australia (2008), Table 1
Shire of Busselton District Town Planning Scheme No 20, cl 6, cl 13, cl 13.1, cl 30

Result:

The application for review is dismissed
The decision under review is affirmed

Category: B

Representation:

Counsel:

Applicants: Mr J Algeri
Respondent: Mr M Cuthbert (Acting as Agent)

Solicitors:

Applicants: Property Planning and Appeals Consultants (Town Planners)
Respondent: Western Australian Planning Commission

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

Boterhoven De Haan and Western Australian Planning Commission [2006] WASAT 27
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Marshall v Western Australian Planning Commission (1995) 15 SR (WA)
Missikos and Gonzalez v Western Australian Planning Commission [2001] WATPAT 9
Waddell and Western Australian Planning Commission [2007] WASAT 87; (2007) 52 SR (WA) 1

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Penfold sought a review of the refusal of the Western Australian Planning Commission to approve a two‑lot subdivision of their property in Caves Road, Quindalup.
Their land was coded R2.5 under the Shire's local planning scheme. The minimum site area set by Table 1 of the Residential Design Codes of Western Australia (2008), which was applicable to the subject land, was not met by the proposed subdivision.
A number of local policies, apart from the Residential Design Codes of Western Australia (2008), on their face, operated so as to prevent further subdivisions. The Commission therefore contended that the proposed subdivision was inconsistent with both State and local policies and that significant weight should be given to the planning framework's aims in this regard.
The Tribunal followed Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 which, amongst other things, discussed the interrelationship between the Planning and Development Act 2005 (WA) and the Residential Design Codes of Western Australia (2008).
In short, the Tribunal found that there existed discretion to permit the proposed subdivision, but that a compelling planning case was needed in order to do so.
The Tribunal determined that the applicants had not made out such a case and the application for review was dismissed. Here, in particular, there were none of the 'unusual circumstances' that were to be found in the Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 case.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.

Introduction: the applicants' proposal

The proposal put forward by the applicants is to subdivide Lot 3 Caves Road, Quindalup, comprising some 7195 square metres, into two lots of 3310 square metres and 2807 square metres respectively. These proposed lot sizes do not reach the minimum 'prescribed' lot sizes under the existing planning framework of 4,000 square metres, having regard to the zoning of R2.5 which has been applied to the subject land (see Table 1 of the Residential Design Codes of Western Australia (2008) (2008 Codes)). The Western Australian Planning Commission (respondent) and the Shire of Busselton (Shire) oppose the subdivision, which is otherwise compliant with the 2008 Codes.
The competing arguments on this central issue of minimum lot size comprise the scope of this review.

The subject land

The subject land is located between Caves Road to the south and Toby Inlet to the north. It is located approximately 4 kilometres from the Dunsborough Town Centre. The land is currently improved by the erection of a dwelling house and a separate large outbuilding. Large peppermint trees exist in the frontage abutting Caves Road.
The applicants' proposal cedes certain land to the State as a recreation reserve adjacent to Toby Inlet, thus completing an existing recreation reserve to the east and the west of the subject land. The ceded land would be a strip some 10 metres wide approximately on the northern rear boundary, comprising some 1078 square metres.
In 1976, a road widening took place for the purposes of Caves Road and excepting that event, the land would have been some 8094 square metres in size. However, that event occurred several decades ago and is, in my opinion, irrelevant to this review, as the planning framework, particularly the residential zoning of R2.5, was established well after 1976.

History of the matter in the Tribunal

This matter commenced as an application to the respondent on 30 January 2008. Statutory consultation with the Shire took place on 17 April 2008. The decision of the respondent, with reasons, was given on 8 August 2008. The matter was commenced in this Tribunal on 27 August 2008 and heard by me on 5 November 2008. Some further historical submissions and finalised draft conditions were sought, the last of which arrived in the Tribunal on 19 November 2008.

Planning framework

So far as it is relevant, and except where indicated below, I adopt the analysis of the planning framework, including the relevance of s 138 of the Planning and Development Act 2005 (WA) (PD Act), as it appears in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark), a case involving the Shire and its Shire of Busselton Town Planning Scheme No 20 (TPS 20). The adoption by this Tribunal of the analysis in Landpark extends to the relevant provisions of the PD Act, the Residential Design Codes of Western Australia (2002) (2002 Codes) and TPS 20. Nothing has been materially altered by the coming into force of the new 2008 Codes.
The effect of Landpark is that because subdivision in this State is, under the PD Act, exclusively controlled by the respondent, references in s 138(2) of the PD Act to the respondent not being permitted to give approval to a subdivision which 'conflicts' with a provision of TPS 20 (an instrument itself having the force of law), does not extend to the case where the conflict comes about by TPS 20 incorporating or applying the purported subdivision controls found in the 2008 Codes (see Table 1). The 2008 Codes do, however, remain relevant as an instrument of policy (see the discussion below).
Additionally, the Tribunal has had regard to the Dunsborough Structure Plan (August 1990), particularly cl 7, dealing with the 'Broadwater' policy area. It was common ground that the Dunsborough Structure Plan was a relevant instrument within the meaning of cl 13 of TPS 20, dealing with matters to be considered in planning decisions.
The Tribunal has also had regard to the Quindalup Special Character Area Policy adopted by the Shire in February 1996. The relevant part of that policy is s 4, cl 3.3.2(ii), which states that there will be 'no further subdivision' between Caves Road and Toby Inlet (see also pg 2 of that policy). It is noted that this policy has special status under cl 30 of TPS 20.
The Tribunal has also had regard, of course, to TPS 20 and the zoning therein, which, as has been mentioned, assigns a density coding of R2.5 under both the 2002 Codes and 2008 Codes. The 2008 Codes are a relevant policy under TPS 20, cl 13.1 and cl 6, and are otherwise applicable to this review, not the least by reason of s 241(1) of the PD Act, dealing with policies to be taken into account by this Tribunal. Regard has also been had to Policy DC 2.2 (Residential Subdivision), at cl 3.2.
In my view, the policies just referred to are a relevant consideration in exercising any discretion apart from the minimum lot size provisions prescribed under the 2008 Codes.

The relevant principles to be applied

I have already mentioned Landpark and unless and until a court rules otherwise, that case, as I have mentioned, provides the proper approach to the application of s 138 of the PD Act; how the 2008 Codes are to be applied as instruments of policy (capable of being departed from in exceptional or compelling cases); and how the 2008 Codes do not necessarily prohibit subdivision where their provisions are not met, and examples of the circumstances where that may be the case.
However, it is worth recalling a key decision of the previous Town Planning Appeals Tribunal, Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 where it was said (at 178, emphasis added):
The R-Codes can be relied upon as the fundamental basis for establishing subdivision patterns in residential areas and the Commission is entitled to exercise their discretion to depart sparingly, to maintain the integrity of an existing subdivision pattern which reflects the R coding.
I also refer to what the previous Tribunal has said in Missikos and Gonzalez v Western Australian Planning Commission [2001] WATPAT 9 (Missikos), a decision dealing with the City of Stirling, (cited with approval in this Tribunal in Boterhoven De Haan and Western Australian Planning Commission [2006] WASAT 27. In Missikos, at [25], the Tribunal said (emphasis added):
Whilst we do not suggest that a departure from the minimum or average lot sizes prescribed by the R-Codes for the purpose of the subdivision application could 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 be only made where some compelling planning reason exists. There is otherwise the potential for existing planning controls to be gradually subverted without the benefit of the consultative process necessary to bring about a scheme amendment.
I myself have elsewhere decried using the Tribunal's processes to achieve what are in effect ad hoc rezonings; see, for example, Waddell and Western Australian Planning Commission [2007] WASAT 87; (2007) 52 SR (WA) 1 at [76].
There is nothing said in Landpark which, in my view, detracts from these statements of principle.
The issue therefore to be considered is as follows. It is the correct and preferable decision to approve the subdivision, having regard to the discretion given to the Tribunal under the planning framework just outlined, and to disregard the application of the 2008 Codes or any other applicable instrument which on their face would prevent the subdivision?

Why the subdivision should not be approved

I am not persuaded that it is appropriate to depart from the planning framework in this case to approve the proposed subdivision. This is so for the following reasons.
First, as I have already indicated, the planning framework establishes in effect a clear and deliberate restriction on density and related development (including subdivision) by the adoption of a low density coding. The 2008 Codes are, as has been seen, a crucial planning instrument and are central to this review.
The coding is in turn consistent with the statement in the Dunsborough Structure Plan that, 'No further subdivision should be allowed in the area' (cl 7.5, already mentioned). Whatever the ambiguities in the rest of that clause, caused perhaps by some aspirational drafting, it indicates that restrictions on subdivision were contemplated. This position was affirmed in 1996 in the statement in cl 3.3.2(iii) in the Quindalup Special Character Area Policy that 'no further subdivision between Caves Road and Toby Inlet beyond R2.5' is to take place. These planning instruments were drafted in the full knowledge of the existing lot arrangements or layout.
The full range of these subsidiary interlocking planning instruments was, I note, missing in Landpark. In any event, their cumulative impact is to bolster the planning framework's 'opposition' to subdivision; that is, very significant weight should be attached to their combined effect. Although they do not, of course, cease to be policy and may be varied, a very compelling planning case is needed to depart from them.
Secondly, the motivation or purpose of such indirect subdivision controls is, according to the Shire in their letter to the WAPC dated 17 April 2008, as follows:
[W]hen assigning a density R-Coding for this area, the Shire deliberately assigned a lower coding than the prevailing lot size to ensure that there was limited opportunity for further subdivision … The lot sizes prevailing in the vicinity have come about due to the winding nature of Toby's Inlet [sic] and the location of Caves Road, rather than any planning for a particular, consistent lot size. The argument that this subdivision should be allowed to reflect the prevailing pattern is therefore not a compelling one, as the pattern is the result of historical and land form considerations, rather than deliberate planning decisions to allow smaller lot sizes in a fragile and sensitive environment.
This formal statement is not relevantly or necessarily inconsistent with an officer's statement in 2004, in earlier correspondence, which recognised that subdivision would be inconsistent with TPS 20, although not otherwise objectionable perhaps as a spot rezoning. A spot rezoning would be, of course, a 'consultative process' of the type noted earlier in Missikos.
As I have already mentioned, the planning controls just discussed were overlaid upon a known lot configuration, and in the full knowledge of the particular locality. The motivation of the Shire, just mentioned, although contestable amongst those holding competing opinions, is nevertheless rational and can hardly be said to be unusual so far as planning decisions are concerned. As a rational regulatory goal, it avoids potential increases in density and any 'knock-on' effect in the locality.
The applicants have not, as I understand it, sought to attack this statement of motivation or purpose, only to suggest that its implementation relies in part on now outdated planning instruments or outdated notions or both. The applicants' view is that, paradoxically, better amenity and environmental outcomes could be achieved by permitting subdivision, ceding land for a reserve and requiring subsequent development, most likely another dwelling, to comply with, for example, 'modern standards' that provide for greater environmental supervision as regards vegetation removal and the interaction with Toby Inlet.
However, with respect, such outcomes are in a truth a matter of speculation on the applicants' part. They are largely rejected by the respondent's expert witnesses and are not relevantly demonstrated to be necessarily any better than the R2.5 zoning subdivision control regime which is already in place and which has preserved, and will most likely continue to preserve, the status quo. The fact that a better regulatory outcome might be hypothesised is in my opinion insufficient to displace these deliberate controls already in place.
The common desire on the part of the applicants, the respondent and the Shire as regards to such matters as preserving amenity, managing the interface between this lot and Toby Inlet, are currently achieved by a standard, often‑used, regular planning device; that is, subdivision controls expressed as fairly rigid low density zoning.
A very compelling case therefore needs to be made to show that this device either does not achieve its evident purposes, or could be bettered. The applicants have, in my view, failed to establish a case that warrants setting aside these collective policies. To put it another way, once the motivation for and the device itself are accepted as lawful and rational in a planning sense and otherwise applicable to the subject land, as here, the applicants may only seek to remove themselves from their control by showing in effect some relevantly exceptional circumstance, such as occurred, for example, in Landpark.
There, the principal argument advanced by the applicants was that the subject land and its surrounding lots formed a pattern of lot arrangement which would be naturally 'rounded off' or otherwise relevantly completed by the proposed subdivision. With respect to those who wish to apply this argument here, I do not see such a pattern - if there be one - as needing completion or rounding off. I accept that the resulting effect on the streetscape is not an issue. However, a pattern ordinarily suggests an intentional, regular and deliberate outcome, and I do not see such a pattern emerging, still less the need for any completion or rounding off of what is on the ground.
For example, the lot sizes in the relevant immediate 'cell', that is Lots 1, 3, 12, 13, 15, 16, 20 and 21, range from 1777 square metres (Lot 12), to 8479 square metres (Lot 21). Even notionally subdividing Lot 21 into two lots, which might be achievable, given its size, what is left shows lot sizes significantly varying across the cell. To the extent that there is any regularity, it is most likely to be the result of the land available between Caves Road and the inlet, hardly the orderly planning process that we are here concerned with as a 'finishing off' exercise.
Landpark also emphasised the 'particular and somewhat unusual circumstances of [that] case' (at [55]). Chief amongst these was the historical circumstance that prior to 1992 the subject land had itself been comprised of two allotments and that there was a return to that historical position by the subdivision. Something of this nature is needed to prevent the application of a framework designed to prevent further subdivision.

Conclusion

The applicants have not made out a case for departing from the subdivision controls set out above, which were evidently designed to prevent subdivision of their land. For all of the reasons given above, I have made the following orders dismissing the review.

Orders

1.The application for review is dismissed.
2.The decision under review is affirmed.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER