PFEFFERLE and WESTERN AUSTRALIAN PLANNING COMMISSION
[2005] WASAT 220
•22 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: PFEFFERLE and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 220
MEMBER: MR J JORDAN (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 22 AUGUST 2005
FILE NO/S: RD 63 of 2005
BETWEEN: GAYLEEN FRANCIS PFEFFERLE
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Subdivision - Green title lots - Refusal - Residential Design Codes 2002 Clause 3.1.3A3(v) variation of average site area - Use of Residential Planning Codes 1991 - Subdivision for single houses not grouped dwellings
Legislation:
Residential Design Codes of Western Australia 2002 (WA)
Residential Planning Codes of Western Australia 1991 (WA)
Result:
Application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr SJ Bain
Respondent: Selfrepresented
Solicitors:
Applicant: As Agent
Respondent: Self-represented
Case(s) referred to in decision(s):
Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of decision
Proposed was the amalgamation of two Residential R20 lots and re‑subdivision into three green title lots. The lots to be created were 458 square metres, 458 square metres and 457 square metres.
The land is subject to the Residential Design Codes of Western Australia 2002, cl 3.1.3 A3(v) which stipulates an average lot area for grouped dwellings of 450 square metres. The standard in the Residential Design Codes for single houses is 500 square metres. The subdivision would result in lots too small for two or more houses as grouped dwellings. This leaves each lot for consideration as a single house lot.
The Residential Design Codes at cl 3.1.3 provide for a 5 per cent variation in lot size if performance criteria are met. In this instance, the concession required for a single house lot is 8.47 per cent and the site characteristics such that the performance criteria cannot be met. The concession required is considered to be too great in the circumstances and so the application has not been allowed.
Application
This is an application for review of the refusal by the respondent to grant approval for the amalgamation and re-subdivision of Lot 229 and Lot 230 Huntingdon Street, East Victoria Park.
The re‑subdivision proposed was to create three green title lots, each with a frontage of 10.85 metres to Huntingdon Street. Two of the lots would have an area of 458 square metres with the central lot having an area of 457 square metres. The houses on the two existing lots would be demolished.
Planning framework
The subject land is zoned Residential under Town of Victoria Park Town Planning Scheme No 1 (TPS 1) with a density coding of R20.
Clause 3.1.4 of TPS 1 provides that the Residential Design Codes of Western Australia 2002 (Design Codes 2002) are to be read as forming part of TPS 1. The Design Codes 2002 recognise three main dwelling types: single houses, grouped dwellings, and multiple dwellings. The respective definitions of the first two types are:
"Single house: a dwelling standing wholly on its own green title or survey‑strata lot, together with any easement over adjoining land for support of a wall or for access or services and excludes dwellings on titles with areas held in common property.
Grouped dwelling: a dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property."
The applicant makes direct reference to the development potential of the land. Table 1 of the Design Codes 2002 sets out general site requirements for various types of development. For R20 Coded land, it states in column three that for a single house or grouped dwelling the required minimum site area is 440 square metres, and the required average site area is 500 square metres.
Table 1, however, must be read with Part Three of the Design Codes 2002, this being "Element 1 – Housing Density". Clause 3.1.3 "Variation to the Minimum Site Area Required" of Element 1 states:
"The Commission may approve the creation of a lot of a lesser area and the Commission or a Council may approve a minimum site area of a Grouped Dwelling on a site area less than that specified on Table 1 provided that the proposed variation would meet the following criteria:
•be no more than 5 per cent less in area than that specified on Table 1; and
•facilitate the protection of an environmental or heritage feature; or
•facilitate the development of lots with separate and sufficient frontage to more than one public street; or
•overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature; or
•allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or
•achieve specific objectives of the local government Scheme and, where applicable, the Local Planning Strategy."
At cl 3.1.3 A3 of Element 1 it states:
"Subject to 3.1.2 only, the following variations to the minimum site areas set out in Column 3 of Table 1 may be made:
…
v.in the case of Grouped Dwellings in areas Coded R20 at the time of the gazettal of the Residential Design Codes the average site area shall be 450 sqm."
It is not in dispute that the subject land was coded R20 at the time of the gazettal of the Residential Design Codes in 2002.
The explanatory text of the Design Codes 2002 states at [43]:
"Because of the historic acceptance of duplex development on lots between 900 sqm and 1000 sqm in areas generally coded R20, provision has been made for the 1991 Codes site area requirements to continue to apply."
The Residential Planning Codes of Western Australia (1991) ("1991 Codes") at Table 1 set out for R20 coded land:
Minimum area of lot per dwelling (sqm)
Single house:
minimum
450
average not less than
500
Grouped dwelling:
450
For grouped dwellings under the 1991 Codes, there is no differentiation made between required minimum area and average area per dwelling. The average site area for a single house was the same then as now required under the Design Codes 2002.
The respondent's decision
The respondent refused the application for the following reasons:
"1.The Commission is not prepared to approve the subdivision as the resultant lot sizes would be below the minimum indicated by the Local Government's Town Planning Scheme.
2.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
The respondent also included in the decision letter an advice to the applicant which read:
"The proposed average lot size of 457.6 m2 does not comply with the average of 500 m2 required for green title subdivision under the R20 density coding of the subject land. Furthermore, since the short fall is greater than five per cent, the proposal does not qualify for the variation provisions applicable under cl 3.1.3 of the Residential Design Codes."
The applicant's position
Mr Simon Bain, an experienced planning consultant made a submission on behalf of the applicant. Mr Bain said that the proposed subdivision meets the minimum frontage requirement of 10 metres for R20 lots under the Design Codes 2002 and minimum total open space and outdoor living area requirements of the Design Codes 2002 can be achieved at the development application stage. The proposal complies with all development standards with the exception of the average site area requirement of 500 square metres.
Mr Bain pointed out that the subject land was coded R20 at the time of the gazettal of the Design Codes 2002. Under cl 3.1.3A3(v) of the Design Codes 2002, therefore, if group dwellings were proposed the required average site area would be 450 square metres.
Mr Bain accepted that the proposal is for green title lots but submitted that a subdivision for strata lots in accordance with the 450 square metres minimum would comply with requirements. He went on to say that the development that would result on a green title lot would be exactly the same as on a strata lot. Single houses and grouped dwellings have been grouped together on Table 1 of the Design Codes 2002 and similar developments standards apply to each. From this, he says, it should be concluded that there will be no difference in terms of impact on the amenity of the locality.
Mr Bain also referred to the support in "Liveable Neighbourhoods" for lots capable of supporting higher density being located close to town and neighbourhood centres, public transport and adjacent to high amenity areas such as parks. He pointed to the park directly opposite the subject land.
Mr Bain cited Dalla Riva (Australia) Pty Ltd and Town of Vincent [2004] WATPAT 4 (16 January 2004), which he said highlights that minor variations to minimum site area can be supported, particularly when considering the object of Element 1 of the Design Codes 2002, which is "to ensure that residential development occurs in line with community expectations about its type and density". He argued that the objective is met in that the community expectation would be for grouped dwellings on 450 square metre lots, that is, three dwellings on 1350 square metres and this is satisfied as there would be three dwellings on a total of 1373 square metres if the proposed subdivision into three "green title lots" proceeded.
As to the proposed subdivision setting a precedent, Mr Bain submitted that precedent of itself is not a reason why the appeal should be dismissed as each proposal is to be considered on its merits.
The respondent's position
The respondent provided a submission from Mr Giancarlo Di Rosso, a planning officer of the Department for Planning and Infrastructure. Mr Di Rosso submitted that 1500 square metres is required to satisfy the site area provisions for three single dwellings on this R20 coded site. The subject land has a site area of 1373 square metres, an overall shortfall of 127 square metres or 8.47 per cent. He acknowledged that each proposed lot is in excess of the required minimum of 440 square metres, but said each is well below the average lot size of 500 square metres.
Mr Di Rosso said that the applicant had not demonstrated that any of the criteria for relaxation of the lot size standard in cl 3.1.3 had been met. Mr Di Rosso also referred to Precinct Plan P12 of TPS 1, which states for Residential zoned land:
"The retention of existing housing, particularly whole street blocks or streetscapes will be encouraged and promoted. Redevelopment shall be consistent with existing style, character and scale of dwellings throughout the precinct."
In regard to this policy, Mr Di Rosso said the proposed lots would be significantly smaller and therefore, not consistent with than the 650 to 750 square metre lots common in the locality. He also made reference to the proposed 10.8 metre lot frontages being less than the existing pattern of lot frontages. In his opinion, any approval would be seen by other owners as a precedent to follow and this would undermine the application of the planning instruments which regulate lot sizes and subdivision form.
The respondent also provided a submission from Mr Robert Cruickshank, a planning officer of the Town of Victoria Park. Mr Cruickshank said the Town opposed the proposed subdivision because the resulting lots would be of a size and frontage inconsistent with the type and form of housing on land in the vicinity of the subject site. There would be a loss of wide lot frontages and a change to the streetscape rhythm. He said narrow lots led to car parking facilities being a dominant feature. Mr Cruickshank referred to a draft policy adopted by the Council, PLNG 14 "Draft Local Planning Policy – Streetscape", which comments on the width of garages relative to street frontages. He said that in the Town's view a battleaxe subdivision better preserves existing streetscape characteristics.
Comment
It is agreed with Mr Bain that a policy that emphasises maintaining general lot sizes in the area should not be given greater emphasis than the standards of the Design Codes 2002, as was submitted by Mr Di Rosso and Mr Cruickshank. It is not agreed with the respondent that the statutory requirements should be set‑aside simply because the predominant frontage and lot area in the locality is larger than the standard required by the statutory instrument.
If there is to be a standard different from that in the Design Codes 2002 allocated to the locality under TPS 1, this should be included in the TPS1 as an exception. There is no such exception in TPS 1. In this regard, it is noted Precinct Plan P12 of TPS 1 also states in addition to the quote offered by Mr Di Rosso:
"Predominantly, development shall be in accordance with the standards specified for Residential R20 and R30 under the Residential Planning Codes."
The policy should inform the Design Codes 2002 standard, not contradict it. To determine otherwise in circumstances where it is difficult to distinguish lots as having any particular characteristics that warrant different treatment would simply mean that the statutory standards identified in TPS 1 could never be achieved.
Mr Bain emphasised the definition of a Grouped Dwelling in the 1991 Codes which did not refer to common property. This is not accepted as relevant to the consideration of the proposed subdivision. Clause 3.1.3 A3(v) of the Design Codes 2002 simply refers to an average site area of 450 square metres. While the explanatory text points out why this area has been repeated from the 1991 Codes, no provisions in the Design Codes 2002 relevant to this matter direct that reference be made to the 1991 Codes for any definition or development control standard. Once a group dwelling development is applied for, the provisions of the Design Codes 2002 are invoked, but with the concession of 450 square metres average site area in the circumstances of cl 3.1.3 A3(v). This Tribunal does not agree that an application involving these particular R20 lots provides authority to borrow the definition of grouped dwelling from the 1991 Codes. As a consequence, the 1991 Codes do not assist this application.
For those R20 lots the subject of cl 3.1.3 A3(v) of the Design Codes 2002 the average site area for a single house is 500 square metres and the average site area for grouped dwellings is 450 square metres. This has the consequence of a marked differentiation between the lot size requirements for single houses and for grouped dwellings.
The application here is not for lots that can result in the development of grouped dwellings. Under the Design Codes 2002, by definition, two or more dwellings are required on one lot, or are dwelling each on survey strata lots with common property, before the development can be considered as grouped dwellings. For R20 transitional lots a minimum of 440 square metres and an average of 450 square metres per dwelling unit is required for grouped dwellings. The individual green title lots proposed, at 458 square metres and 457 square metres, are too small to accommodate two dwellings and survey strata lots with common property have not been applied for. The grouped dwelling standards are therefore not applicable.
The question then arises whether the proposed lots can be utilised for single house purposes. The applicant asks that a concession be granted on the average lots size for single house purposes. The respondent has argued that the concession being requested is too great a departure from the standard set out in the Design Codes 2002.
The Design Codes 2002 require an average lot size per dwelling of 500 square metres for a single house. The applicant is seeking a concession of 8.47 per cent from this standard. A relaxation of 5 per cent can be contemplated under cl 3.1.3 if the performance criteria set out are addressed. The particular issues in the performance criteria cannot be identified in this proposal. The comment can be made, that nothing has been identified that distinguishes the subject land from neighbouring lots that support these lots being treated differently from any others in the locality.
The objective of Design Element 3 refers to residential development occurring "in line with community expectations about its type and density". TPS 1 must be considered as an expression of community expectations. It is not seen as consistent with this objective to apply grouped dwelling standards to lots that cannot result in grouped dwelling development. If single house development only can result, then single house standards are applicable.
Della Riva (supra), referred to by Mr Bain, is not considered to assist the applicant. In that development, four grouped dwellings were proposed. One of the grouped dwellings would have a lot area 2 square metres, or 1.1 per cent, less than the minimum lot area allowed once a 5 per cent concession is included. The other grouped dwellings had lot areas in excess of the requirement. Such a difference for one grouped dwelling of four was found not to result in lots inconsistent with community objectives.
In the proposal before this Tribunal, the development is for lots that can only be developed for single houses. The shortfall is 42 square metres or 8.47 per cent for each lot (3.4 per cent if a 5 per cent variation were allowed). This does not meet the standard of the Design Codes 2002 for single houses and nothing can be found in any event to satisfy the criteria for a 5 per cent variation to the site area as required by cl 3.1.3.
Conclusion
The subject lots were coded R20 at the gazettal of the Design Codes 2002, but this does not assist the applicant. The concession available under cl 3.1.3 A3(v) applies only to grouped dwellings and there is in the Design Codes 2002, a marked distinction between the average site area for grouped dwellings and for single houses.
The green title lots proposed can each only be developed for single houses. The lots do not, however, meet the average lot size requirements for single houses in the Design Codes 2002. It has not been demonstrated that circumstances or lot characteristics exist to warrant a 5 per cent relaxation in the site as provided in cl 3.1.3 of the Design Codes 2002 and, in any event, a greater concession of 8.47 per cent would be required. While it is difficult to identify a threshold beyond which subdivision should never be considered, the absence of any mitigating circumstances and the need for concession for all three proposed lots leads to the conclusion that the proposed subdivision cannot be supported.
Order
The order of the Tribunal is:
1.The application for review seeking approval to amalgamate and re‑subdivide Lot 229 and Lot 230 Huntingdon Street as proposed is dismissed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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