Rakich and Anor and Western Australian Planning Commission
[2007] WASAT 294
•13 NOVEMBER 2007
RAKICH & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 294
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 294 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:104/2007 | 15, 16 AUGUST 2007 | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 12/11/07 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed and subdivision approval refused | ||
| B | |||
| PDF Version |
| Parties: | FRANK RAKICH CECELIA RAKICH WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Outline Development Plan Existing subdivision pattern Completion of subdivision pattern Streetscape Special exemptions of s 138(3) of the Planning and Development Act 2005 (WA) Conflict with the provisions of the town planning scheme |
Legislation: | City of Gosnells Town Planning Scheme No 6, cl 7.2.2 City of Swan Draft Town Planning Scheme No 17 City of Swan Town Planning Scheme No 9, cl 2.8, cl 2.8.1, cl 2.8.2, cl 2.8.5, cl 2.8.6, cl 2.8.7.2, cl 6.2.1.1, cl 6.2.1.2, cl 6.2.1.10, cl 6.2.1.11, cl 6.2.3.1, cl 6.2.3.2, Appendix 9 Planning and Development Act 2005 (WA), s 138 State Administrative Tribunal Act 2004 (WA), s 87, s 88, s 89 Town Planning and Development Act 1928 (WA), s 5AA |
Case References: | Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Pearson & Anor and City of Gosnells [2006] WASAT 228 Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110 Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 |
Orders | 1. The application for review is dismissed,2. The decision of the Western Australian Planning Commission to refuse the application to subdivide Lot 7 Viveash Road, Middle Swan into two lots of 1036 square metres and 1046 square metres is reaffirmed,3. The respondent is to pay to the applicant $350 in costs on account of its procedural defaults |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RAKICH & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 294 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 15, 16 AUGUST 2007 DELIVERED : 13 NOVEMBER 2007 FILE NO/S : DR 104 of 2007 BETWEEN : FRANK RAKICH
- CECELIA RAKICH
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Outline Development Plan - Existing subdivision pattern - Completion of subdivision pattern - Streetscape - Special exemptions of s 138(3) of the Planning and Development Act 2005 (WA) - Conflict with the provisions of the town planning scheme
Legislation:
City of Gosnells Town Planning Scheme No 6, cl 7.2.2
City of Swan Draft Town Planning Scheme No 17
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City of Swan Town Planning Scheme No 9, cl 2.8, cl 2.8.1, cl 2.8.2, cl 2.8.5, cl 2.8.6, cl 2.8.7.2, cl 6.2.1.1, cl 6.2.1.2, cl 6.2.1.10, cl 6.2.1.11, cl 6.2.3.1, cl 6.2.3.2, Appendix 9
Planning and Development Act 2005 (WA), s 138
State Administrative Tribunal Act 2004 (WA), s 87, s 88, s 89
Town Planning and Development Act 1928 (WA), s 5AA
Result:
The application for review is dismissed and subdivision approval refused
Category: B
Representation:
Counsel:
Applicant : Mr S Ramanathan (Acting as Agent)
Respondent : Mr J Bouwhuis (Acting as Agent)
Solicitors:
Applicant : Sri-Nathan & Associates Pty Ltd (Planning Consultants)
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Pearson & Anor and City of Gosnells [2006] WASAT 228
Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110
Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96
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Summary of Tribunal's decision
1 This matter involved an application for review of the Western Australian Planning Commission's refusal of an application to subdivide Lot 7 Viveash Road, Middle Swan into two lots of 1036 square metres and 1046 square metres. The proposed subdivision was in an area of land zoned Residential Redevelopment where the provisions of the City of Swan Town Planning Scheme No 9 required comprehensive planning in the form of an Outline Development Plan prior to the approval of subdivision proposals.
2 The Tribunal found that the proposal had planning merit. The proposed subdivision was located in the south-western corner of a street block with direct access to roads and all required services and where it would be unlikely to prejudice future comprehensive planning. The subdivision would complete a pattern of subdivision and would have resulted in a streetscape consistent with the established pattern.
3 However, the tribunal found that the proposal conflicted with the requirements of the Scheme which required that subdivisions could not be approved unless there had been mandatory comprehensive planning in the form of an outline development plan approved by the respondent.
4 The Tribunal was asked to determine whether the subdivision could be approved under s 138(3) of the Planning and Development Act2005 (WA). That section would enable approval of a subdivision application that conflicted with a town planning scheme if any one of six exemptions was established. Subclause 138(3)(c) was the only relevant exemption and it provided for a choice. The exception would be achieved if either the conflict was minor or if the approval would be consistent with the intent of the scheme.
5 The Tribunal found that the conflict was not minor and that approval would not be consistent with the intent of City of SwanTown Planning Scheme No 9.
6 The application for review of the respondent's decision was dismissed and subdivision approval was refused.
Introduction
7 These proceedings involve an application brought by Frank and Cecelia Rakich for a review of the decision of the Western Australian
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- Planning Commission (WAPC or respondent) to refuse an application to subdivide Lot 7 Viveash Road, Middle Swan (subject land) into two lots of 1036 square metres and 1046 square metres.
8 The applicant lodged the application on 13 December 2006. The WAPC then referred the proposal to the Water Corporation, the Department of Environment and Conservation, Western Power and the City of Swan. None of the referral agencies objected to the proposal except for the City of Swan which advised that it did not support the proposed subdivision because:
"The proposed subdivision is premature in the context that the land is zoned Residential Redevelopment which requires the preparation of an Outline Development Plan prior to the subdivision being supported."
9 The respondent refused the application on 26 February 2007 for the following reasons:
"1. The proposed subdivision does not comply with the Commission's Policy DC 1.1 Subdivision of Land - General Principles, a provision of State Planning Policy No 1 (State Planning Framework) by reason of:
i) the proposal is inconsistent with the requirements of the City of Swan Town Planning Scheme No 9; and
ii) the subject land is located within an area requiring comprehensive planning in the form of an Outline Development Plan prior to subdivision. Approval to subdivide prior to this occurring is inconsistent with orderly and proper planning.
2. The proposed subdivision does not comply with the Local Government Town Planning Scheme by reason of there being no Outline Development Plan relating to the land as required by clause 6.2.3.2 of the Scheme.
3. The subject land forms part of a large area, which requires comprehensive planning (including agreement to an overall road pattern, the allocation of land for recreation and other public uses, provision for essential infrastructure and equitable arrangements for developer
- contributions), and approval to the subdivision would be premature and prejudice the overall planning for the area.
- 4. Approval to the subdivision would set an undesirable precedent for further subdivision of surrounding lots."
10 On 23 March 2007, the applicants lodged an application for a review of the respondent's refusal.
Subject land
11 The subject land is described as Lot 7 Viveash Road, Middle Swan. Lot 7 has a 45 metre frontage to Viveash Road and is 46.27 metres deep. The subject land has an area of 2,082 square metres and contains an existing dwelling that will be wholly contained within one of the proposed lots.
12 The subject land is located within a street block contained within the boundaries of Viveash Road and Great Northern Highway to the east, Bishop Road to the north, Railway Avenue to the west and Toodyay Road to the south. The street block generally consists of large, narrow lots approximating 4,000 square metres. The larger lots have frontages approximately 30 metres and depths generally in excess of 130 metres.
13 The subject land is part of a group of six smaller lots in the south west corner. There are two smaller lots in the south-east corner and a group of small to medium size lots in the north-east corner. The entire street block is a residential redevelopment zone except for the group of small to medium lots in the north-east corner which are zoned R20. Unlike the similar lots in the north-east corner, the smaller lots in the south-east and south-west corner are included in the redevelopment zone.
Planning Framework
14 The site is zoned "Residential Redevelopment" in the City of Swan Town Planning Scheme No 9 (2002) (TPS 9).
15 There is planning framework at both a regional and local level to guide decision-making on the subdivision of the subject site.
Regional Planning Framework
16 The Statement of Planning Policy No 1 (SPP 1) was originally prepared under s 5AA of the Town Planning and Development Act 1928 (WA) and sets out the key principles guiding planning decision-making
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- on land use and regional development. SPP 1 establishes a central framework for State and regional policies, strategies and guidelines and provides the context for decision-making by the respondent on matters of land use and development - including subdivisions. The Tribunal is required to have due regard to the provisions of this policy.
17 The relevant policy listed in SPP 1 is the WAPC's Development Control Policy DC 1.1 - Subdivision of Land - General Principles (DC 1.1).
18 Clause 3.3.1 to cl 3.3.4 of DC 1.1 set out provisions for Structure Plans. Clause 3.3.1 states that Structure Plans (also known as Outline Development Plans) "are particularly useful for co-ordinating subdivision and development in areas of fragmented ownership."
19 Clause 3.3.2 discusses the relation between Structure Plans, Local Town Planning Schemes and regional planning and states that a "Structure Plan may be required under the provisions of a Local Government Scheme." Clause 3.3.3 deals with cost-sharing arrangements.
20 Clause 3.3.4 states:
"The WAPC will have regard to any adopted structure plan and developer contribution arrangement when considering subdivision applications submitted within an area covered by a structure plan or a developer contribution arrangement."
Local Planning Framework
21 As previously mentioned, the site is zoned "Residential Redevelopment" in the City of Swan's TPS 9. Clause 6.2.1.1 provides that "subdivision of land in this zone should not proceed unless it accords with a properly prepared and approved Outline Development Plan" (ODP). The clause includes discretion for the approval of development described as a minor change of use or minor extensions to existing buildings without the need for the preparation of an ODP. However, the discretion does not extend to subdivision. Clause 6.2.1.1 applies to the residential development zone. Clause 6.2.3.2 which applies to the residential redevelopment zone incorporates the procedures of cl 6.2.1.1.
22 Clause 6.2.1.1(a) to cl 6.2.1.1(c) of TPS 9 describe the requirements for an ODP including existing land features, proposed subdivision and development components and various supporting statistics and data.
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- Clause 6.2.1.2 to cl 6.2.1.10 set out the procedures associated with approving and amending ODPs.
23 Clause 6.2.1.11 of TPS sets out various provisions for reviews associated with ODPs. However, the provisions are not against the requirement for an ODP but against the requirement for various details associated with the preparation of an ODP or in respect of the provisions of a proposed ODP.
24 Clause 6.2.3.1 of TPS 9 describes the objectives of the residential redevelopment zone including the identification of areas with redevelopment potential; the provision of an ODP to co-ordinate redevelopment of existing residential areas and the need to avoid subdivision which might compromise future co-ordinated redevelopment.
25 Clause 6.2.3.2 states that:
"Subdivision or development within the Residential Redevelopment Zone shall only take place after comprehensive planning. The Council, before assessing any proposal for subdivision or development within the zone, shall require the preparation and adoption of an Outline Development Plan in accordance with the procedures set out in sub-clause 6.2.1."
26 Clause 2.8 of TPS 9 sets out various provisions for Development Contribution Areas as shown in Appendix 9. There are no Development Contribution Areas at this stage.
27 The City of Swan Draft Town Planning Scheme No 17 is close to finalisation and is a seriously entertained document. If the proposed subdivision is to be determined on its merit, relevant provisions of this Scheme will be discussed later in these reasons.
Issues
28 The following issues arise for determination in this review:
1. Whether approval of the proposed subdivision conflicts with the provisions of TPS 9;
2. If the proposal conflicts with TPS 9, whether any of the exemptions set out in s 138(3) of the Planning and Development Act 2005 (WA) (PD Act) is established so that the proposed subdivision is capable of being approved in the exercise of planning discretion; and
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- 3. If the proposed subdivision is capable of being approved either because of the lack of conflict with TPS 9 or because an exemption is established under s 138(3) of the PD Act, whether it should be approved having due regard to:
(i) the provisions of TPS 9;
(ii) the provisions of DC 1.1; and
(iii) orderly and proper planning.
29 A summary of the respondent's argument is that TPS 9 prevents approval of subdivisions until after the adoption of an ODP. In the case of the subject land there is no ODP, therefore the respondent argues it is not possible to approve the subdivision and any approval would be in conflict with TPS 9 until after an ODP had been adopted. The respondent relies on several clauses in TPS 9 to establish the framework for the conflict.
30 Clause 6.2.1.1 states that:
"Planning for a residential neighbourhood should take account of the need to derive maximum amenity or benefit for those residents in adjacent neighbourhoods as well as for prospective residents. This planning consideration should be reflected in a plan for future subdivision and development to be known as an "Outline Development Plan". The subdivision and development of land zoned "Residential Development" should not proceed unless it accords with a properly prepared and approved "Outline Development Plan".
In certain special circumstances, Council may exercise its discretion to grant approval to development that involves a minor change of use or minor extensions to existing buildings without the preparation of an Outline Development Plan."
31 The respondent observed that the above clause states that subdivision should not proceed unless it accords with an approved ODP. Further, the exemption available in the clause only applies to minor development proposals and there is no exemption for subdivision.
32 Mr Bouwhuis, a planner employed by the respondent, argued that the requirement for an approved ODP prior to subdivision approval is
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- consistent with the objectives for the Residential Redevelopment Zone. Clause 6.2.3.1 provides that:
"The objectives of the Residential Redevelopment Zone are to:
(a) Identify existing residential areas with significant redevelopment potential for residential purposes, for which comprehensive planning is required in order to ensure a coordinated approach to the subdivision and development of land and upgrading of infrastructure;
(b) Provide for the coordinated redevelopment of existing residential areas through the application of a comprehensive plan to guide subdivision and development to be known as an ‘Outline Development Plan';
(c) Avoid the subdivision or development of land for any purposes that are likely to prejudice or compromise the future coordinated development of the land, until such time as an Outline Development Plan has been finalised for the subject areas and sufficient provisions are in place to facilitate equitable contributions from landowners to the provision of infrastructure;
(d) Take account of the need to protect the amenity and ongoing use of land within the zone and the need to provide for the requirements of future residents."
"Subdivision or development within the Residential Redevelopment Zone shall only take place after comprehensive planning. The Council before assessing any proposal for subdivision or development within the zone, shall require the preparation and adoption of an Outline Development Plan in accordance with the procedures set out in sub-clause 6.2.1."
34 The respondent argued that cl 6.2.3.2 also requires that an OPD shall be required before approval of a subdivision.
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35 It is the respondent's position that the combined effect of these clauses is that an approved ODP is an essential requirement prior to consideration and approval of a subdivision. There is no approved or draft OPD for the part of the residential redevelopment zone that contains the subject land. Therefore, any approval of a subdivision of the subject land would be in conflict with TPS 9.
36 Mr Ramanathan, a planner appearing for the appellant, presented several arguments to the effect that the proposal was not in conflict with the TPS 9. The most relevant argument was that the proposal complies with cl 6.2.3.1(c) and cl 6.2.3.1(d). Sub-clause 6.2.3.1(d) is a general requirement that by itself does not overcome the need for an ODP. However, Mr Ramanathan submitted that sub-clause 6.2.3.1(c) appears to contemplate the possibility of approving a subdivision without the need for an OPD provided that "the subdivision was not likely to prejudice or compromise the future coordinated development of the land and sufficient provisions are in place to facilitate equitable contributions from landowners to the provision of infrastructure."
37 Mr Ramanathan argued that the proposed subdivision completed a pattern of subdivision in one corner of the street block and that the completion of the subdivision would not compromise the planning of the remainder of the street block. He further argued that as all services were available to the subject land, that any contribution to the provision of infrastructure was unlikely and that even if required, it could be covered by appropriate planning conditions.
38 Before returning to the question of whether cl 6.2.3.1(c) permits the proposed subdivision, the Tribunal will briefly address certain other matters raised by Mr Ramanathan. In his witness statement, Mr Ramanathan argued that cl 2.8.7.2 of TPS 9 provides a discretion to approve the subdivision. Clause 2.8.7.2 is part of s 2.8 of TPS 9 which deals with Development Contribution Areas. Clause 2.8.7.2 provides that:
"Where a Development Contribution Plan is not in effect, the local government may support subdivision or approve development where the Owner has made other arrangements satisfactory to the local government with respect to the Owner's contribution towards the provision of infrastructure and Administrative Costs in the Development Contribution Area."
39 While an initial reading of this clause may indicate that cl 2.8.7.2 provides discretion to approve the proposed subdivision, the context of the
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- clause makes this doubtful. Clause 2.8.5 requires a Development Contribution Plan to be prepared for each Development Contribution Area. Clause 2.8.6 provides that a Development Contribution Plan does not have effect until it has been incorporated into Appendix 9 as part of the Scheme.
40 Clause 2.8.1 of TPS 9 refers to Development Contribution Areas as being shown in the Scheme Map as DCA and marked with a number and included in Appendix 9. Then cl 2.8.2 states that "in respect of a Development Contribution Area shown on the Scheme Map, the provisions applying to development contribution area apply in addition to the provisions applying to any underlying zone or reserve or any general provisions of the Scheme."
41 However, Appendix 9 states "there are no Development Contribution Areas that apply to the Scheme." Therefore, because there are no development contribution areas in the Scheme at this stage, the provisions applying to development contribution areas do not apply at this stage. Until there is a development contribution area, none of the provisions of cl 2.8 apply and there is no discretion via cl 2.8.7.2.
42 Mr Ramanathan also referred to cl 6.2.1.11 of TPS 9 which provides for Outline Development Plan reviews. However, the Tribunal finds that cl 6.2.1.11 only applies where there is an existing or proposed ODP. In this review there is no existing or proposed ODP for the locality including the subject land and therefore there is no right of review under cl 6.2.1.11. The applicant included a sketch, as an attachment to Mr Ramanathan's witness statement, showing a possible ODP of the street block including the subject land. However, the sketch ODP has not been submitted to either the respondent or the City of Swan and the Tribunal finds that no right of review is triggered by the existence of this sketch OPD.
43 As previously mentioned, the subject land is included in the residential redevelopment zone. This zone was created in January 2006 via amendment 382 to TPS 9. Mr Ramanathan challenged the validity of amendment 382 and summonsed a witness from the City of Swan and questioned the witness on matters relating to the amendment. The matter was then raised again during evidence from Mr Rakich and later while the joint expert planning witnesses were giving their evidence to the Tribunal. The Tribunal expressed concerns about the presentation of this issue and whether as a matter of procedural fairness the respondent had adequate time to prepare arguments on this issue and whether it should be dealt with as a separate issue before a reconvened Tribunal including a legal
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- member. The Tribunal asked Mr Ramanathan to take instructions from his client on whether he wanted the Tribunal to deal with the validity of amendment 382 as an issue. After an adjournment, Mr Ramanathan advised the Tribunal that the validity of amendment 382 was not an issue to be determined by the Tribunal.
44 That leaves the question of whether cl 6.2.3.1(c) provides a discretion to approve the subdivision without an ODP. The questions of the adequate provision for contributions to infrastructure and whether the proposal compromises future planning are matters of merit and only become relevant if a discretion is found.
45 The wording of cl 6.2.3.1(c) seems to indicate the possibility of approving a subdivision if the subdivision does not compromise future planning. However, cl 6.2.3.1(c) appears to be inconsistent with cl 6.2.3.2 which requires that "subdivision … shall only take place after comprehensive planning" and that "the Council before assessing any proposal for subdivision … shall require the preparation and adoption of an Outline Development Plan in accordance with the procedures set out in sub-clause 6.2.1.1."Furthermore cl 6.2.1.1 requires in partthat"the subdivision and development of land zoned 'Residential Development' should not proceed unless it accords with a properly prepared and approved Outline Development Plan".
46 This Tribunal considered a similar situation in Pearson & Anor and City of Gosnells[2006] WASAT 228. In that decision at [23] the Tribunal referred to Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 where Mason and Wilson JJ stated at [23] as follows:
"…
The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole …"
47 In Pearson [24] - [30] the Tribunal examined various clauses in the City of Gosnells Town Planning Scheme No 6 including cl 7.2.2 which stated that the City "may require an ODP" and found at [31] that:
"When read together, cl 4.2, cl 7.1(a), cl 7.2.1 and cl 7.2.2 indicate a clear contemplation in the Scheme that land in the 'Residential Development' zone requires comprehensive
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- planning in the form of an OPD so as to guide the formulation and assessment of planning applications."
48 Similarly in this review, the Tribunal finds that cl 6.2.1.1, cl 6.2.3.1(a) to cl 6.2.3.1(d) and cl 6.2.3.2 when read together require comprehensive planning in the form of an ODP before the approval of a subdivision application in the "Residential Redevelopment Zone".
49 The significance of cl 2.8.7.2 of TPS 9 must be briefly considered again. This clause appears to permit consideration and approval of subdivisions within Development Contribution Areas without the qualification of the requirement for comprehensive planning. Clause 2.8.7.2 when combined with cl 6.2.3.1(c) seem to add weight to the possibly of a discretion to approve subdivision without an ODP. However, as has previously been mentioned, under cl 2.8.6, the provisions of s 2.8 do not become applicable until the City of Swan incorporates a Development Contribution Area into Appendix 9. At this time there are no Development Contribution Areas. Furthermore, cl 2.8.2 provides that the provisions of s 2.8 apply "in addition to the provisions applying to any underlying zone …". Therefore cl 2.8.7.2 works together with cl 6.2.1.1, cl 6.2.3.1 and cl 6.2.3.2.
50 The Tribunal finds that when TPS 9 is considered as a whole, the approval of the proposed subdivision would conflict with the requirements of TPS 9 because there is no ODP for the part of the zone that contains the subject land.
If the proposed subdivision conflicts with the planning framework, whether there is a proper basis to depart from it and approve the proposed subdivision
51 A conflict had been identified with the requirements of TPS 9. The issue is whether there is a proper basis to depart from the requirements of TPS 9 where the Scheme does not provide the necessary discretion.
52 Section 138 of the PD Act gives the respondent authority to approve a subdivision that conflicts with the provisions of a local planning scheme if any one of six exceptions set out in s 138(3) of the PD Act is established.
53 Reading the exceptions in context indicates that only one of the exceptions is required to be met. This interpretation was accepted by this Tribunal in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 at [14] and [29].
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54 Relevant exceptions under s 138(3) in this review are if:
"(c) in the opinion of the Commission (and, on review, this Tribunal) -
(i) the conflict is of a minor nature; or
(ii) the approval is consistent with the general intent of the local planning scheme."
56 Mr Ramanathan argued that even if there was a conflict (which he denied) the conflict was of a minor nature. The subdivision would infill and would complete a pattern of subdivision at the southern end of Viveash Road. The proposed two lots would be consistent in size and frontage with the adjoining lots to the north and would result in the continuation of the established streetscape pattern on both sides of the road. Mr Ramanathan argued that the lack of comprehensive planning in the form of an OPD was not a barrier to approval in this case because the planning outcome at the southern end of Viveash Road is inevitable.
57 Section 138(3)(c)(ii) of the PD Act is another possible exemption. Mr Ramanathan argued that if any conflict existed, approval would not be inconsistent with the general intent of TPS 9. He noted that the intended planning outcome for the Residential Redevelopment Zone is described in the objectives at cl 6.2.3.1(a) - 6.2.3.1(d). Sub-clauses (a) and (b) are not in dispute. The relevance is that subclause (c) permits subdivision provided the subdivision is "not likely to prejudice or compromise the future coordinated development of the land." Mr Ramanathan argued that the proposal is consistent with the general intent of the Scheme which is to require ODP's for areas of land with redevelopment potential but to permit subdivision which does not compromise future comprehensive planning in the form of an ODP. Mr Ramanathan argued that the comprehensive planning of the street block, which contains the subject land, is not restricted by the proposed subdivision which merely completes an existing pattern of subdivision in the south-west corner of the street block where the lot sizes are unusually small compared to the majority of large narrow lots which have significant redevelopment potential.
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58 Mr Ramanathan also argued that the proposed subdivision is consistent with the intent of cl 6.2.3.1(d) namely "to take account of the need the amenity and ongoing use of land within the zone and the need to provide for the requirements of future residents" because the proposed subdivision completes the pattern of subdivision and removes a hole (or inconsistency) from the existing streetscape.
59 In addition, Mr Ramanathan drew the Tribunal's attention to the matter of reasonableness or fairness associated with the preparation of an ODP. The subject land is in one corner of the large street block and is insignificantly small and already fully serviced. The subject land will not benefit from an ODP and cannot improve the planning outcomes of an ODP. The City of Swan is the dominant landholder in the super block and the City's work depot is located on the land. The evidence presented to the Tribunal was that there was no timetable under consideration for the preparation of an ODP. Mr Ramanathan argued that it would be unreasonable to expect the owner of the subject land to prepare an ODP for the entire super block and it was also unreasonable to expect the owner to wait for an unspecified number of years for the City to find an alternative depot site to enable it to vacate the existing depot and prepare an ODP.
60 Mr Ramanathan concluded that the proposal is consistent with the intent of the Scheme because the proposal provides orderly and proper planning and will not prejudice future comprehensive planning.
61 Mr Bouwhuis argued in reply that the conflict is not of a minor nature and that the proposal is inconsistent with TPS 9. He argued that that the Tribunal had already established this principle in Rocca & Anor and Western Australian Planning Commission[2007] WASAT 110 at [25] - [28]. Mr Bouwhuis argued that a similar set of circumstances exist in the current review when compared to Rocca which was located within the similar residential development zone in the City of Swan.
62 The first question to be answered is whether the conflict is of a minor nature. The Tribunal dealt with very similar issues and the same planning scheme (TPS 9) and a similar zone in Rocca. In that case, the review involved a proposal in the residential development zone whereas this review is in the Residential Redevelopment Zone. The Residential Redevelopment Zone (cl 6.2.3.1 and cl 6.2.3.2) incorporates the provisions of the procedures found in cl 6.2.1 (Residential Development Zone) as they relate to ODPs. In Rocca, the Tribunal analysed the text of cl 6.2.1, cl 6.2.3.1, cl 6.2.3.2 and found, at [18] that "cl 6.2.1 imposes a
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- mandatory obligation for approval by the Commission (WAPC) of an outline development plan prior to its approval of a subdivision application."
63 Although the current review is in the Residential Redevelopment Zone the Tribunal comes to the same conclusion. Clause 6.2.3.2 states:
"Subdivision or development within the Residential Redevelopment Zone shall only take place after comprehensive planning. The Council, before assessing any proposal for subdivision or development within the zone, shall require the preparation and adoption of an Outline Development Plan in accordance with the procedures set out in sub-clause 6.2.1."
64 It is clear that cl 6.2.3.2 imposes a mandatory requirement for approval by the WAPC of an outline development plan before its determination of a subdivision application.
65 The issues and principles are similar and the Tribunal sees no valid reason to depart from Rocca where, at [27], the Tribunal stated:
"The conflict with TPS 9 is hardly of a minor nature. Approval of a subdivision application in the Residential (Redevelopment) Zone of TPS 9 in circumstances where the Commission has not approved an outline development plan in relation to the land is a critical or fundamental conflict with the Scheme."
66 It is significant that in Rocca an ODP had been prepared and that the City of Swan had approved the OPD but it had not been forwarded to the WAPC and had not been approved by the WAPC. Despite the existence of an OPD and the support from the City of Swan, the Tribunal still found that the lack of approval from the WAPC created a fundamental conflict with the Scheme. In this review, there is no ODP at all. The applicant has prepared a sketch plan which lacks the detail required by cl 6.2.1. The OPD has not been formally submitted for any degree of assessment. The lack of any comprehensive planning, regardless of the merits of the proposal, results in a fundamental conflict with TPS 9. Therefore, no exemption is established on the basis that that approval would result in a minor conflict with TPS 9.
67 The second question to answer is whether approval is consistent with the general intent of the local planning scheme. The intentions of the scheme for the Residential Redevelopment Zone are set out in cl 6.2.3.1. It is clear and consistent with the findings in Rocca at [28] that the intent
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- of the Scheme is to require that subdivision approval should only be granted after comprehensive planning in the form of an OPD approved by the WAPC.
68 Mr Ramanathan argued that the proposal is consistent with the intent of the Scheme and specifically the objective in cl 6.2.3.1(c) which states:
"Avoid the subdivision or development of land for any purposes that are likely to prejudice or compromise the future coordinated development of the land, until such time as an Outline Development Plan has been finalised for the subject areas and sufficient provisions are in place to facilitate equitable contributions from landowners to the provision of infrastructure."
69 It was Mr Ramanathan's submission that the proposal does not compromise the future coordinated development of the land and furthermore, the applicant has agreed to the draft without prejudice conditions submitted by the respondent which provide for contribution to the provision of infrastructure.
70 Although the Tribunal has some sympathy with Mr Ramanathan's client's position, objective cl 6.2.3.1(c) cannot be read in isolation. When the objective is read together with the other objectives and cl 6.2.3.2 and cl 6.2.1, the intent is clear. The Tribunal finds that the intent is to require mandatory comprehensive planning in the form of an approved ODP prior to the consideration and approval of any subdivision proposal in the Residential Redevelopment Zone.
71 Therefore, the Tribunal finds that subdivision cannot be approved and must be refused under s 138(2) of the PD Act.
72 This decision is made despite the planning merit of the proposal which completes the subdivision pattern in the immediate locality. The one reservation the Tribunal has on the merit of the proposal is the uncertainty of future zoning. If a future ODP is based on an R15 density, the proposed lot sizes will be consistent with that coding. If, however, a future ODP is based on an R20 coding (which, based on the evidence before the tribunal, is common in the area) then both lots that would be created as part of the current proposal would have potential for further subdivision. This may not be a problem because the lots created as part of this proposal would share that potential with the four lots immediately to the north which all exceed 1000 square metres. Therefore, future comprehensive planning may not necessarily be compromised because if
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- the proposal is approved, any future ODP would need to deal with six lots in the south-west corner all of a similar size and all with similar potential and limitations.
Application for costs
73 The applicant applied for a partial recovery of costs and referred to s 87, s 88 and s 89 of the State Administrative Tribunal Act 2004 (WA). The application covers the additional time incurred by the applicant because of the need to attend additional directions hearings due to the non-appearance by the respondent or because the respondent had failed to comply with various orders issued at directions hearings.
74 The applicant submitted details and evidence supporting the claim for the partial recovery of costs. However, the application did not establish a specific number of hours or actual costs.
75 The respondent did not submit a reply to the claim. However, at the hearing, the respondent's agent conceded: "I agree that [our] actions haven't been completed in relation to the requirements of the SAT orders that were set down" and later "… I can see that from [our] actions … [it] has caused delays in the procedures for the application for review."
76 The Tribunal finds that the applicant does have grounds for the partial recovery of costs related to additional time for attending extra directions hearings due to non-attendance by the respondent and due to non-compliance with orders.
77 In the Tribunal's view $350 should be awarded to the applicant in recognition of the inconvenience and disruption that the applicant has been put to because of the respondent's tardy conduct in the matter at some early points. This sum has been assessed taking into account the applicant's own conduct in causing a delay in relation to matters referred to at [43].
Conclusion
78 Based on the merit of the proposal the Tribunal would be inclined to support the applicant's proposal, despite the previously mentioned reservation on planning merit due to the potential for further subdivision of the lots if an R20 density is adopted as part of a future ODP. The arguments in support of the proposal are generally consistent with sound planning principles. This Tribunal has previously supported small infill subdivisions that complete a pattern of subdivision rather than extend a subdivision pattern. (See for exampleStrawbridge & Anor and Western
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- Australian Planning Commission [2006] WASAT 96). The applicant's proposal in this review completes the pattern of subdivision at the southern end of Viveash Road and will contribute to a homogenous streetscape.
79 However, merit alone is not sufficient to determine whether the proposal can be approved. The Tribunal found that the proposal conflicted with the requirements of TPS 9; specifically the combined requirements of cl 6.2.1.1, cl 6.2.3.1 and cl 6.2.3.2.
80 With the proposal having planning merit it was then necessary to determine whether the application could be approved under s 138(3) of the PD Act. Approval for a subdivision that conflicts with the requirements of TPS 9 can be granted if one of six exceptions is met. Subclause (c) was the only relevant exemption and it provides a choice. The exception is achieved if either the conflict is minor or if the approval is consistent with the intent of the scheme.
81 The Tribunal found that the conflict was not minor and that approval would not be consistent with the intent of TPS 9.
Orders
The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the Western Australian Planning Commission to refuse the application to subdivide Lot 7 Viveash Road, Middle Swan into two lots of 1036 square metres and 1046 square metres is reaffirmed.
3. The respondent is to pay to the applicant $350 in costs on account of its procedural defaults.
I certify that this and the preceding [81] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER
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