PETER JOHN RATTIGAN and WESTERN AUSTRALIAN PLANNING COMMISSION
[2005] WASAT 54
•7 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: PETER JOHN RATTIGAN and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 54
MEMBER: MS B MOHARICH (MEMBER)
HEARD: 4 APRIL 2005
DELIVERED : 7 APRIL 2005
FILE NO/S: RD 308 of 2005
BETWEEN: PETER JOHN RATTIGAN
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Survey strata subdivision - Right-of-way condition - Need - Nexus - Form of development
Legislation:
Land Administration Act 1997 (WA) s 195, s 196
Town Planning and Development Act 1928 (WA) s 20A, s 24(5)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Applicant: Mr K Adam
Respondent: Mr W Zimmerman
Solicitors:
Applicant:
Respondent:
Case(s) referred to in decision(s):
Cardwell Shire Council v King Ranch Australia Pty Ltd 54 LGRA 110.
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (TPAT Appeal No.9 of 1996 – unreported – 22 October 1996).
Case(s) also cited:
Nil
MS B MOHARICH (MEMBER)
REASONS FOR DECISION
This is an appeal against a condition imposed on the approval by the respondent of a survey strata subdivision of land in Cottesloe.
The land in question is located at 9 Grant Street, and is more particularly described as Lot 24 on Plan 2689, Certificate of Title Volume 1690, Folio 495, (hereinafter referred to as "Lot 24").
Lot 24 adjoins a privately owned right of way ("ROW") on its southern (rear) boundary, which has a length of 16.27 metres. The approved survey strata subdivision involves the subdivision of Lot 24 into two lots. The proposed front lot, of 368 square metres, contains the original house, and is the subject of a planning approval to replace the house with a new two-storey dwelling. This dwelling will continue to use Grant Street for both vehicular and pedestrian access.
The proposed rear lot is 371 square metres in area. This rear lot includes a 1.5 metre wide pedestrian access leg to Grant Street. It was not disputed between the parties that the house on the rear lot will continue to use Grant Street for pedestrian access, visitor car parking, as its postal address, access to utility services and for refuse collection. It contains an existing, two storey dwelling, which was constructed in 2001. The dwelling is located within 1 metre of the rear boundary adjoining the ROW at its western end, and 2.5 metres at its eastern end, where the garage is located. The dwelling on the rear lot gains vehicular access from the ROW.
Approval of the survey strata subdivision was given on 8 September 2004, and was subject to the following condition:
"The portion of right-of-way adjoining the southern boundary directly abutting the existing dwelling shall be widened by up to 2.5 metres (as shown on the attached plan date stamped 7 September 2004), such widening being shown on the Diagram or Plan of Survey as a "Public Right of Way" and vested in the Crown under section 20A of the Town Planning and Development Act, such land to be ceded free of cost and without any compensation by the Crown."
The applicant applied for a reconsideration, pursuant to s 24(5) of the Town Planning and Development Act 1928 (WA), on the basis that some of the land required to be ceded housed the footings and retaining wall of the dwelling, as well as water and sewer connections. By letter dated 1 December 2004, the respondent agreed to the condition which is now the subject of this appeal:
"The granting of an easement in gross in accordance with Sections 195 and 196 of the Land Administration Act in favour of the Western Australian Planning Commission for the provision of vehicular and pedestrian access over the area of land shown on the attached plan (date stamped 30 November 2004). The provision of this easement to be at the costs of the applicant. (WAPC)".
The area of land referred to in the above condition is all of the setback between the rear boundary adjacent to the ROW, and the rear walls of the house.
At the commencement of the hearing in this matter, Mr Zimmerman for the respondent advised the Tribunal that the respondent conceded in part the area of land it required to be subject to the easement. A plan was handed up, and it is clear from this plan that the area of land now required is that area immediately adjacent to the existing garage, that is, approximately 8 metres in length, and at its widest, approximately 2.5 metres in depth ("the easement area").
The appeal proceeded on the basis of this amended easement area.
The Right of Way
The ROW is approximately 100 metres in length, and runs east‑west, terminating at the park adjoining Lot 24. At its eastern end, it forms a T‑shape junction with another right‑of‑way, which runs north‑south between Grant and Hawkstone Streets. Unusually, therefore, the ROW does not gain any direct access from a public road. The ROW has a width of 3.62 metres over most of its length. When added to the easement area, at its widest, the ROW would be approximately 6.1 metres in width.
While not in evidence, it was common ground between the parties that the ROW is in private ownership. There is nothing on the Certificate of Title for Lot 24 which indicates that it gains any benefit from the ROW, nor any statutory right of access.
The Local Government
At the heart of this appeal, it would seem, is the fact that the Town of Cottesloe has allowed the development of land along the ROW in such a way that does not easily facilitate its widening to the standard imposed in the respondent's policies. Indeed, the Town of Cottesloe did not recommend the widening of this ROW as part of the referral process for the subdivision approval.
Neither the applicant nor the respondent called as a witness an officer of the Town of Cottesloe, the local government within which Lot 24 is located. However, Mr David Porter, who gave evidence on behalf of the applicant, tendered as an attachment to his witness statement a letter to him, from Mr Geoff Trigg, the Manager of Engineering Services at the Town of Cottesloe dated 26 November 2004. In that letter, the Town makes the following comments:
"The ROW has no water main or water hydrant in it and therefore could not be used by a fire truck to fight a fire.
It is a dead end with no room to turn around at the western end, behind Lot 24.
Any emergency access to Lot 24, rear property, would use the POS lawn area to the west or straight from Grant St, using the new 1.5m 'flag' access, for stretcher or fire hose use.
The remaining length of this ROW has a variety of recently built residences plus buildings under construction. These blocks have had no subdivision and and [sic] no conditions to widen this ROW through resumption.
Therefore, there is little chance of the total ROW width being increased to some optimal width set down by policy."
Assessment
The respondent submits that the requirement for a sufficiently wide access is required by the respondent's policies DC1.3: Strata Titles and DC2.6: Residential Road Planning, and by Planning Bulletin 33: Rights-of-Way or Laneways in Established Area – Guidelines, which together require a width of 6 metres for a rear laneway. This can be reduced to 5 metres where there are constraints which would not allow a widening to 6 metres, and where the ROW only provides access to garages, and is not the main pedestrian access.
The reason for requiring a wider ROW, the respondent says, is to allow for the passing of vehicles, and to allow for a turning circle at the terminus of the right of way.
The applicant contends that notwithstanding the requirements set out in the respondent's policies, in this case, the granting an easement is not in any way "widening" the ROW, as the land is already physically developed in a way that does not allow any further widening of the ROW. Further, the applicant says that the ROW, and the applicant's adjoining land does not allow for large vehicles to make a turn in any event, and changing the land tenure will not improve the situation.
The applicant called as witness Mr Perry Leach, an experienced civil and structural engineer, who gave evidence in relation to the capacity of vehicles to turn around in the easement area. It was his view that emergency vehicles such as ambulances would not be able to turn around even if the ROW was 6.1 metres in width. This is based on the dimensions of ambulances currently in service with the St John Ambulance Australia WA Ambulance Service Inc, which are 5.9 metres in length, with a diagonal length of 6.23 metres. Whether 6.1 metres would accommodate the turning of a domestic vehicle, it was agreed, would depend on the type of car and the skills of the driver involved. It would by no means be a simple task capable in all situations.
What follows from this, the applicant says, is that condition 5 does not achieve the outcome stated by the respondent to allow the turning of vehicles. In addition, in light of the fact the ROW terminates to the west of Lot 24, there will be no need to allow the passing of vehicles on the ROW.
Equity
A condition requiring widening of 0.69 metre has been imposed on the adjoining subdivision, and the objective of the condition is to provide for the long-term widening of the ROW to 5 metres in width. (This is on the basis of the existing 3.62 metre width, and requiring 0.69 metre widening on either side of the ROW, and land on each side of the ROW is subdivided). The respondent says that it would be inequitable to not impose a similar condition in relation to Lot 24.
It is the Tribunal's view that this is not the correct test to apply. In all circumstances the Tribunal is required to determine whether the condition is a reasonable and relevant condition to be imposed in relation to the subdivision at hand.
The test of the validity and scope of a planning condition, as espoused in Newbury District Council v Secretary of State for the Environment [1981] AC 578 requires the condition to:
(a)Have a planning purpose;
(b)Fairly and reasonably relate to the development; and
(c)Be not so unreasonable that no reasonable planning authority could have imposed it.
A condition of approval can be said to reasonably relate if it arises from changes precipitated by the development or the subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree: Perrymead Investments Pty Ltd v Western Australian Planning Commission (TPAT Appeal No.9 of 1996 – unreported – 22 October 1996).
There is no question that this condition has a planning purpose. It is a condition which has been imposed in accordance with the respondent's policy framework, which has been developed for legitimate planning purposes. It should be noted however that while it has been imposed in accordance with the respondent's policy, it is clear from the Town of Cottesloe's point of view, the condition is not required.
A condition is reasonable and relevant if the form of future development abutting the ROW will lead to an increase of traffic along the ROW, and where this particular subdivision leads to a diminishment in capacity: Cardwell Shire Council v King Ranch Australia Pty Ltd 54 LGRA 110.
This does not appear to be the case. There are eight original lots which abut the ROW capable of subdivision. Of these eight lots, three have been subdivided into side-by-side lots, that is, each with street frontage access. Of the remaining five lots, two have relatively new and substantial houses constructed on them, and are therefore unlikely to be further subdivided in the foreseeable future. These two houses have street access. This leaves Lot 24 as the only front-back subdivision accessing the ROW for a primary vehicle entrance, and two other lots which are yet to be subdivided or further developed. In light of the prevailing side‑by‑side subdivision which has occurred in this area, allowing each lot to have street frontage, it is hard to see the need for a scheme of widening for the ROW.
Further, the respondent is imposing a condition to allow the public at large to use the easement area to turn their vehicles. The need for the easement is not generated by the subdivision of Lot 24. Any person visiting the rear lot would be able to use the easement area because they would be there with the permission of the owner. It is my view, therefore, that the nexus between the need for the easement and the subdivision is not made out.
Legal Issues
Mention should be made of the management issues in relation to this ROW. The existing ROW is in private ownership. On the subdivision of 11 and 11A Grant Street (the adjoining subdivision referred to above) the respondent required the ceding of the land pursuant to s 20A of the Town Planning and Development Act 1928 (WA). In this case, the respondent has relied upon s 195 and s 196 of the Land Administration Act 1997 (WA) to give the public an easement in gross in favour of the respondent. It is not a desirable outcome to have such a patchwork of land tenure, and legal responsibility in the one thoroughfare. The applicant expressed his concern regarding the issue of legal liability in relation to an easement arrangement, particularly in this case where the easement would directly abut a residence, and in fact parts of the upper levels of the building and eaves overhang into the easement area.
Conclusion
For the foregoing reasons, I make the following orders:
1.The appeal is allowed.
2.Condition 5 is deleted from the subdivision approval dated 8 September 2004, and as amended by the reconsideration dated 1 December 2004.
I certify that this and the preceding seven pages comprise the reasons for decision of the Tribunal.
_________________________
MS B MOHARICH
MEMBER
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