PENNY and WESTERN AUSTRALIAN PLANNING COMMISSION - [2009] WASAT 248

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PENNY and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 248

MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)

HEARD: 18 NOVEMBER 2009

DELIVERED : 16 DECEMBER 2009

FILE NO/S: DR 320 of 2009

BETWEEN: MICHAEL PENNY
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision application - Rural residential - Whether consistent with town planning scheme and subdivision guide plan - Minimum average lot size for the area - Precedent for variation from guide plan - Whether draft town planning scheme and local planning strategy should be given weight - Whether an undesirable precedent would be set - Role of respondent to determine subdivision applications that conflict with local planning scheme - Anomaly in relation to adjoining lot sizes - Whether proposal compromises orderly and proper planning of the area

Legislation:

Draft Shire of Esperance Town Planning Scheme No 23, Sch 5
Planning and Development Act 2005 (WA), Pt 10 s 138
Shire of Esperance Town Planning Scheme No 22, Appendix 7
State Administrative Tribunal Act 2004 (WA)

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Ms Bell

Solicitors:

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

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This is a review of the Western Australian Planning Commission's decision to refuse subdivision approval of Lot 46 Helms Drive, Pink Lake, Esperance into two lots of approximately 2 hectares each.
The Western Australian Planning Commission had refused the subdivision on grounds that the proposal was inconsistent with the subdivision guide plan for the area made under the Shire of Esperance Town Planning Scheme. It was also inconsistent with the Shire of Esperance's newly drafted Town Planning Scheme No 23 Sch 3 and local planning strategy. Approval of the subdivision would set an undesirable precedent for further subdivision in the area.
Mr Michael Penny argued that the departure from the subdivision guide plan was minimal, that there was a precedent for variation from the guide plan, that the proposed subdivision was unique in its characteristics, and that it would not constitute a precedent for further subdivision.
After consideration of the detailed arguments, the Tribunal took the view that the effect of the proposed departure from the subdivision guide plan was significant, that the proposal was demonstrably inconsistent with the planning framework for the area, that the proposed lot sizes were anomalous in the locality and that, if allowed, the subdivision would set an undesirable precedent for further subdivision, thus compromising the orderly and proper planning of the area.
The application for review was therefore dismissed.

Introduction

This is an application for review of the Western Australian Planning Commission (WAPC) decision to refuse subdivision of Lot 46 Helms Drive, Pink Lake, Esperance.
The application for subdivision was submitted to the respondent on 17 April 2009.
Following consultation with relevant agencies, including the Shire of Esperance (Shire or Council), the respondent issued its refusal of the subdivision application on 7 August 2009.
Mr Michael Penny (applicant) lodged an application for review of the respondent's decision with the Tribunal on 21 August 2009.

The proposed subdivision and its context

Lot 46 Helms Drive is located approximately 6 kilometres southwest of Esperance in the Pink Lake South Rural Residential Area.
The Pink Lake South Rural Residential Area is a substantial precinct of small rural residential lots lying to the south of Pink Lake, a wetland of national importance recognised by the Australian Nature Conservation Agency (ANCA).
The rural residential area is not serviced with sewerage or a reticulated water supply.
Lot 46 Helms Drive is situated well within the body of the rural residential precinct. It appears to be surrounded by lots of similar size and configurations which are used for rural residential purposes.
Lot 46 Helms Drive has an area of 4.2607 hectares. It is a corner lot with street frontages onto Helms Drive and Kingsmill Retreat. A dwelling is located centrally on the land.
The proposed subdivision seeks to divide Lot 46 Helms Drive into two lots of 2.2572 hectares and 2.0035 hectares (proposed lot 200 and lot 201 respectively).
Proposed Lot 200 will contain the house and an established water bore and maintain frontages to both streets. Proposed Lot 201 will be accessed solely from Kingsmill Retreat.

Statutory and policy instruments

Lot 46 Helms Drive is located in an area zoned Special Rural Area 2 under the Shire of Esperance Town Planning Scheme No 22 (TPS 22).
The Schedule of Special Provisions for this area at Appendix 7 of TPS 22 provides that:
…
(a)Subdivision … shall be generally in accordance with the Subdivision Guide Plan … contained in the Shire of Esperance Limited Local Strategy, and that;
(b)No lot shall be less than 2 ha in area and an average lot size of 3.5 ha shall apply.
The Shire has prepared a draft local Town Planning Scheme No 23 (draft TPS 23 or scheme) which has been advertised, adopted by the Shire Council and endorsed by the Minister for Planning for final approval.
Draft TPS 23 identifies the area in which Lot 46 Helms Drive is located as Special Provisions Area RR 2. The proposed provisions for RR 2 under Sch 5 of draft TPS 23 state that:
The local government will support development in accordance with an Outline Development Plan or Detailed Area Plan adopted by 31 December 2005, or alternatively supported by the Local Planning Strategy. Development will also be supported in accordance with a preliminary subdivision approval in place by 31 December 2005. Further subdivision of this land will not be supported.
The Shire has prepared and adopted a local planning strategy (LPS). Subject to modifications, the LPS was endorsed by the respondent on 14 July 2009.
Lot 46 Helms Drive is identified by the LPS as being located within Precinct 29 'Pink Lake South Rural Residential A.' The objective for this precinct is:
To recognise the development potential of the precinct whilst recognising that a range of constraints will limit the extent of development.
The LPS describes that:
(a)most of the precinct is located within the Lake Warden Catchment Recovery Area and/or within the Esperance Water Reserve Groundwater Protection Priority 2 Area; and
(b)Outline Development Plans have been agreed to by the Environmental Protection Authority on the basis that there would be no further subdivision.
Strategies for Precinct 29 proposed under the LPS include:
(a)To facilitate rural residential development of the precinct having due regard to the environmental impacts of development; and
(b)No further subdivision within this precinct will be supported.
The respondent has adopted State Planning Policy (SPP 2.5), which applies to rural land and requires that local governments prepare a local planning strategy to plan for change and development in rural areas.
Policy objectives of SPP 2.5 include requirements to:
(a)Plan and provide for rural settlement where it can benefit and support existing communities; and
(b)Carefully manage natural resources by discouraging development and/or subdivision that may result in land or environmental degradation and integrating land catchment and water resources management requirements with land use planning controls.
The respondent's Development Control Policy Subdivision of Rural Land (DC 3.4) sets out principles and criteria guiding the determination of applications for the subdivision of rural land.
Clause 3.1 of DC 3.4 states that:
It is WAPC policy that the subdivision of rural and agricultural land for closer settlement (ruralresidential and rural smallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.

The respondent's decision

The respondent's decision to refuse the proposed subdivision of Lot 46 Helms Drive was expressed in the following terms:
1)The proposed subdivision would be contrary to the provisions for Precinct 29 (Pink Lake South Rural Residential A) of the Shire of Esperance Local Planning Strategy which states that no further subdivision within this precinct will be supported.
2)The proposed subdivision would be contrary to Sch 5 of the Shire of Esperance Town Planning Scheme No 23 which states that further subdivision of the land will not be supported.
3)The proposed subdivision is not consistent with the approved Outline Development Plan
4)Approval to the subdivision would set an undesirable precedent for further subdivision of surrounding lots.

The respondent's argument

The substance of the respondent's argument is that the proposed subdivision is inconsistent with the statutory and policy planning framework relevant to the area and would create an undesirable precedent for further subdivision.
Mr DTD Stevens, a qualified and experienced town planner employed as a senior planning officer by the Department of Planning appeared as a witness for the respondent.
According to Mr Stevens, Lot 46 Helms Drive is characterised by sandy soils and a high water table. It is located within a Priority 2 area identified by the Esperance Public Drinking Water Protection Plan. A Priority 1 area is located 800 metres to the south.
Mr Stevens informed the Tribunal that the proposed subdivision is inconsistent with TPS 22 because it does not comply with the requirement to maintain an average lot size of 3.5 hectares within the Subdivision Guide Plan area for Special Rural Area 2. The additional lot resultant from the proposed subdivision would decrease the average lot size to 3.48 hectares.
Whilst the variation is small, in Mr Stevens' opinion it is significant because the Subdivision Guide Plan was approved by the Environmental Protection Authority (EPA) on the basis that no further subdivision should be allowed to permit an average lot size for the area below 3.5 hectares.
Mr Stevens described the progress of the Shire's TPS 23, noting that the scheme has been adopted by the Shire and that the Minister for Planning has endorsed the Scheme for final approval, subject to modifications. None of the required modifications relate to the area of the proposed subdivision.
Given the advanced state of preparation of draft TPS 23, which has included public advertising, Mr Stevens submitted that the scheme was a seriously entertained planning proposal that should be relevantly considered by the Tribunal.
Mr Stevens pointed out that Lot 46 Helms Drive is located within the Special Provisions area RR 2 under draft TPS 23 and that no further subdivision of this area will be supported according to the provisions of the new scheme. Accordingly, Mr Stevens was of the opinion that the proposed subdivision is inconsistent with the aims of draft TPS 23.
The Shire has prepared a LPS which is also a seriously entertained planning instrument according to Mr Stevens, because it has been adopted by the Council and, subject to certain modifications, has been endorsed by the respondent.
The LPS also affirms that 'no further subdivision within this precinct will be supported'.
Mr Stevens stated his view that the proposed subdivision was therefore inconsistent with the LPS prepared by the Shire.
Mr Stevens drew attention to SPP 2.5 which requires local governments to prepare local planning strategies to comprehensively plan for change and development in rural areas. SPP 2.5 seeks to discourage development and/or subdivision that may result in land or environmental degradation.
Mr Stevens concluded that the proposed subdivision was inconsistent with SPP 2.5 because the Shire's present and future planning schemes and planning strategy, which seek to integrate natural and water resource management with land use planning controls for rural settlement, do not support further subdivision of the subject land.
Mr Stevens drew attention to the DC 3.4 which provides that closer settlement of rural land should be properly planned for by the preparation of planning strategies and provided for in local planning schemes prior to subdivision being effected.
The proposed subdivision is inconsistent with DC 3.4 because it is not provided for in the Shire's local planning strategy or the local town planning scheme.
Mr Stevens made reference to the applicant's argument that in 2000 the Minister for Planning had approved the subdivision of Lot 47 Helms Drive in a form varied from the subdivision guide plan. Mr Stevens argued in response that the decision was not a precedent for consideration in this application because the subdivision of Lot 47 did not result in a lowering of the average lot size for the area below 3.5 hectares.
A more recent proposal for the subdivision of nearby Lot 7 Helms Drive in 2003 had been refused by the respondent for reasons that the resultant lot sizes would be below the minimum average lot size of 3.5 hectares specified for the area by TPS 22. Mr Stevens identified this decision as setting a valid precedent for refusal of the application for subdivision of Lot 46 Helms Drive.
The applicant claims that the proposed subdivision will not cause a precedent because the land is unique in its characteristics of being a corner lot with two road frontages and being provided with electricity and telephone services were not accepted by Mr Stevens.
Mr Stevens suggested that there were 24 other lots in the immediate street block capable of subdivision into lots of 2 hectares. More such lots occur in the Pink Lake area and many are capable of subdivision without the need for battleaxe lot configuration. Plans identifying the lots capable of further subdivision into lots of minimum 2 hectares were referred to by Mr Stevens in his witness statement.
Given the characteristics of Lot 46 are common to a number of other lots in the Pink Lake area, Mr Stevens concluded that the proposed subdivision would create an undesirable precedent for further ad hoc subdivision and thus compromise the comprehensive plan for the area.
Upon further examination, Mr Stevens acknowledged that there was no evidence that the proposed subdivision of itself would compromise environmental interests or water quality objectives of the area. He advised, however, that no land capability information accompanied the application to assist in determining its suitability.
On the question that the average lot size of the area was augmented by a considerable area of land reserved for roads and other open space which would mitigate any environmental pollution concerns regarding the intensity of land use and development, Mr Stevens responded that these land use components were already factored in to the overall assessment of the area when the original subdivision guide plan was approved by the EPA.
Questioned as to the similarity of the lot on the eastern side of Kingsmill Retreat to Lot 46, Mr Stevens agreed that it was similar in having two road frontages and would most likely have the same services available. He was not aware, however, of the location of any dwelling on site or whether that would compromise its capacity for subdivision.
Questioned as to whether there was any capacity for further subdivision of the land in the event that draft TPS 23 was to be gazetted by the end of the year, Mr Stevens affirmed that the Scheme provided that further subdivision would not be supported by the Shire.

The applicant's argument

The applicant argued that the proposed subdivision was unique in its characteristics, it was supported by the Shire and would not cause any precedent for further subdivision of the area.
The applicant did not seek to present any witness to the hearing and chose instead to rely on documentation previously submitted to the Tribunal supporting the application for review.
The applicant's reasons in support of the application are summarised as follows:
•The Shire of Esperance Council voted unanimously in favour of allowing this subdivision and Councillors were fully versed on all the reasons for and against such approval.
•The proposed lots have two road frontages and existing power and Telstra infrastructure exists to service the lots.
•No other lot in the Outline Development Plan area would meet the criteria of having flat land for building, existing two street frontages and sufficient existing infrastructure to service a subdivision. Therefore, a precedent would not be set for other subdivision of surrounding lots.
•This application is made under Draft Local Planning Scheme 22 and when Draft Planning Scheme 23 is adopted, no further subdivision of this Outline Development Plan will be considered.
•The Outline Development Plan requires the average area of lots be 3.5 hectares. Dividing Lot 46 into two will take this average to 3.483 hectares. This is very close to the requirement and should come within the discretionary power of the WAPC. The Commission has previously approved subdivision inconsistent with other Guide plans in the past as described by the previous Minister of Planning Graham Kierath in the enclosed letter.
It was emphasised by the applicant that the only planning instrument relevant to this application was TPS 22. Draft TPS 23 and the LPS were not yet valid because they had not been finalised.
When the draft TPS 23 is finalised at the end of the year, however, no further subdivision of the area will be possible. Accordingly, no precedent will be set for further subdivision in the event of this application for review being successful.

Analysis

The issues arising from the respective arguments are:
•whether the proposed subdivision is consistent with the planning framework of the area, or, if not;
•whether the proposal is acceptable on its merits and can be accommodated as a variation from the planning framework without compromising the orderly and proper planning of the area.
The respondent has argued that the proposed subdivision is inconsistent with the planning framework because the additional lot created reduces the minimum average lot size for the area below 3.5 hectares. This is contrary to the subdivision guide plan approved for the area under the auspices of TPS 22.
One of the purposes for setting minimum and minimum average lot sizes is to limit the density of rural residential development in an area of sensitivity regarding the protection of public drinking water protection areas.
The respondent has submitted that in addition to TPS 22, the Shire's draft TPS 23 and draft LPS affirm the intention that no further subdivision of the locality should be supported.
The applicant accepts that the proposed subdivision would cause a reduction of the minimum average lot size below 3.5 hectares, but suggests that the reduction to 3.483 hectares is so minimal as to be inconsequential.
The applicant has submitted that the Shire's draft scheme and draft planning strategy are not relevant because they have not yet been finalised.
Considering the two arguments, the Tribunal notes that the proposed subdivision comprises two lots of 2.0035 hectares and 2.2572 hectares. The proposed lot sizes are therefore substantially below the 3.5 hectares expected average and thus rely heavily on the presence of other, larger lots in the area to maintain the required average. The small quantitative overall reduction in the average lot size across a large number of lots masks the substantial departure from the average by this particular subdivision in its own right.

The applicant has argued, however, that Lot 46 is uniquely entitled to subdivision because of its advantageous landform, double road frontage and serviceability. The Tribunal notes, however, that plans submitted by the respondent depicting the subdivision guide plan, aerial photography and contour information of the locality suggest that there appears to be a number of comparable lots for which similar claims could be made. Indeed, lots in the immediate vicinity of Lot 46 all appear to be generally similar in area suggesting that the subdivision of Lot 46, if allowed, would be quite anomalous.
The applicant's argument as to the unique circumstance of Lot 46 are therefore rejected.
Considering the applicant's argument as to whether the Shire's draft TPS 23 and LPS are relevant, the Tribunal notes the substantial progress of these two planning instruments and the circumstance that they have been publicly advertised and subsequently conditionally endorsed by the Minister and respondent respectively. It is apparent that the draft TPS 23 and the LPS are squarely in the public domain, have been subject to community scrutiny, and the planning objectives and provisions of the instruments have received progressive approvals of the relevant authorities. In such circumstances, it would be reasonable for the Tribunal to grant the instruments substantial weight as part of the planning framework relative to consideration of this matter.
Both the draft TPS 23 and the LPS signal that further subdivision of the area should not be supported.
The Tribunal concludes that the proposed subdivision of Lot 46 into two lots of just over 2 hectares in area, if approved, would cause a small but significant reduction below the allowable minimum average lot size prescribed by the subdivision guide plan for the area. Such an outcome would be inconsistent with the present and future planning framework for the area and that inconsistency cannot be regarded as inconsequential.
Turning then to the question of whether the proposed subdivision application should succeed on its merits, notwithstanding its inconsistency with the planning framework, the question is posed whether Lot 46 can be subdivided and further developed without detriment to the physical, social and environmental sensitivities of the area.
The Tribunal notes in this regard that the Department of Water, when commenting on the proposed subdivision, advised that the area was known to have a high water table and recommended that further land capability information should be provided.
It is understood that no such land capability information has been tendered.
In the absence of certification that the land in question is capable of further development, the Tribunal would be reluctant to presume the proposed subdivision could be acceptable. It is possible however, that such a certification could be considered as a condition of approval in the event that no other issues fatal to the proposal arise.
A concern raised by the respondent has been the precedent that would arise if the application was approved. In this regard, the respondent has tendered a plan of the area identifying 24 other lots within the street block within which Lot 46 lies that are capable of being subdivided to create lots with a minimum lot size of 2 hectares. There are also a considerable number of lots within the Pink Lake area that would also have potential for further subdivision.
The applicant has countered this concern as to the potential for further subdivision by arguing that when the draft TPS 23 is gazetted at the end of 2009, the new scheme, which signals that further subdivision of the area will not be supported, will in effect prevent any further subdivision.
The Tribunal notes that the applicant queried the potential for subdivision of several of the properties cited by the respondent, but largely left the bulk of lots identified as having the possibility of similar subdivision, unchallenged. The applicant relied instead on the proposition that the draft TPS 23 would terminate the possibility of any further subdivision.
The Tribunal views the applicant's argument in respect of the effect of draft TPS 23 with some caution. It should be borne in mind that the respondent is vested with the power to approve the subdivision of land under Pt 10 of the Planning and Development Act 2005 (WA) and, in accordance with s 138 of the Act, may, in certain circumstances, give approval to a subdivision that conflicts with a local planning scheme.
In reviewing any application for subdivision, the Tribunal assumes the same authority in lieu of the respondent.
Accordingly, the applicant's argument that the Shire's draft TPS 23, when finalised and gazetted would absolutely preclude further subdivision, is not categorically the case.
Whilst any consideration of future subdivision applications in the area under the auspices of draft TPS 23 is obviously hypothetical, any circumstances of precedent which have been set, may well arise and be taken into consideration by the respondent in determining such an application.
But in any case, the Tribunal has difficulty with accepting the proposition that a subdivision should be allowed at this moment on the convenient basis that, while it would otherwise have set an undesirable precedent for further subdivision in the area, the timely transition to a new planning instrument 'tightening' subdivision controls should then cause other similar applications to fail. Such a reasoning for an approval would have to be seen to be opportunistic and inequitable.
Finally, the Tribunal notes the previously mentioned anomaly that would occur in relation to lot sizes in the immediate area of Lot 46. The surrounding lot sizes appear from the plans submitted to the Tribunal to be much the same as Lot 46. To allow subdivision of Lot 46 into much smaller lot sizes without a similar opportunity for those close by to achieve comparable outcomes could well be perceived by the community as inequitable and unreasonable.
Given all of the preceding circumstances the Tribunal is not convinced of the merits of the proposed subdivision or that there is a reasonable justification for allowing a variation to the planning framework without compromising the orderly and proper planning of the area.

Conclusion

Based on the preceding analysis, the Tribunal concludes that the application for review of the respondent's decision to refuse subdivision approval of Lot 46 Helms Drive into two lots should be dismissed.

Order

For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 7 August 2009 to refuse subdivision approval of Lot 46 Helms Drive, Pink Lake, Esperance into two lots is affirmed.

I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER