RICHES and WESTERN AUSTRALIAN PLANNING COMMISSION - [2006] WASAT 100

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: RICHES and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 100

MEMBER: MR L GRAHAM (SESSIONAL MEMBER)

HEARD: 13 FEBRUARY 2006

DELIVERED : 24 APRIL 2006

FILE NO/S: DR 591 of 2005

BETWEEN: WAYNE AND LINDA RICHES
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Battleaxe lot - Heritage and conservation objectives - Streetscape - Nonconforming use rights - Undesirable precedent - R5, R20

Legislation:

City of Swan Town Planning Scheme No 9, cl 2.5.1
Metropolitan Region Scheme
Residential Design Codes of Western Australia 2002, cl 3.1.2, cl 3.1.3, Table 1
State Administrative Tribunal Act 2004 (WA), s 29(5)(b), s 82(1)

Town Planning and Development Act 1928 (WA), s 5AA, s 24(3), s 26(1)(a)(i), s 61(1)(a)

Result:

The application for review is allowed

Category: B

Representation:

Counsel:

Applicants: Mr S Ramanthan (Agent)
Respondent: Mr J Algeri

Solicitors:

Applicants: N/A
Respondent: N/A

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

Aspen Pty Ltd v State Planning Commission, (Unreported; Appeal No 13 of 1988, 21 October 1988)
J & K Kyrwood v Western Australian Planning Commission [2002] WATPAT 15
Peter J and Janet C Moulin and Town of Cottesloe [2002] WATPAT 23

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The application for review by Wayne and Linda Riches to the State Administrative Tribunal (Tribunal) arises from a decision of the Western Australian Planning Commission to refuse the amalgamation of two rectangular shaped Lots 8 and 9, Johnson Street, Guildford and their re‑subdivision into two same sized Lots of battleaxe configuration.
The review required an analysis of existing land use along with the various legislative provisions, policies and guidelines as well as matters of streetscape, nonconforming use rights, precedent and the overall merits of the proposal.
In the view of the Tribunal, the principal issue to address is whether an approval would prejudice the prime intent of the public authorities involved to preserve the historic character of Guildford. No compelling planning reason could be found that this would be so, and that an approval with properly constructed conditions and the sensitive handling of their implementation, would not compromise heritage or conservation objectives.
The application for review is allowed and the decision under review set aside.

Introduction

The application for review by Wayne and Linda Riches (applicants) on 5 October 2005, arises from a decision of the Western Australian Planning Commission (respondent) on 6 September 2005 to refuse the application dated 4 May 2005 to amalgamate Lots 8 and 9, Johnson Road, Guildford and to re‑subdivide into proposed Lots 101 and 102 with a battleaxe configuration.
The refusal was based on the following reasons:
"1.The proposed subdivision does not comply with the Commission's Policy Design Codes 2.2 Residential Subdivision, a provision of statement of Planning Policy No 1, State Planning Framework, by reason of the minimum and average sizes of the proposed Lots being below the area nominated by the R5 Residential Planning Code for the subject land.
2.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.
3.The proposal does not comply with the provisions of the City of Swan's Town Planning Scheme No 9 as it does not reflect the character of the Guildford Conservation Precinct, and is inconsistent with the Guildford Design and Development Guide.
4.Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding Lots."

Subject land

The subject land is described on Certificate of Title Volume 1790, Folio 700 as being Lot 8 on Plan 1760 and Certificate of Title Volume 1658, Folio 979 and being Lot 9 on Plan 1760. Lot 8 is 668 square metres in area and the adjacent Lot 9 is 685 square metres giving a combined area of 1353 square metres.
The Lots have a combined frontage to Johnson Street of 26.94 metres, a combined rear boundary of 26.91 metres and a depth of 50.29 metres. There is an existing shop (Swan Valley Boutique) on Lot 8 dating back to the period 1900 – 1920 with an associated residential use. The adjacent Lot 9 has been partially filled and levelled and is used for parking ancillary to the uses on Lot 8.

Legislative framework

The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "residential 1" with an R5 coding in the City of Swan (City) Town Planning Scheme No 9 (TPS 9). It abuts the regional parks and recreation reserve on both its east and south side, is adjacent to the Helena River flood plain and fronts Johnson Road, a primary regional road to the west.
Both Lots 8 and 9 fall within the Guildford Conservation Precinct (GC Precinct) as identified in the Guildford Conservation Policy (GC Policy) and are covered by the provisions of the Guildford Design and Development Guide (GDD Guide). They abut the Swan River Trust Management Area and any future development on the land would be subject to the Swan River Trust's development policies.
On 28 September 2005, the City adopted its Draft Guildford Hazelmere Place Plan (DGHP Plan) for the purpose of advertising and community comment. The draft has yet to be finalised.
The matter is covered under s 24(3) of the Town Planning and Development Act 1928 (WA) (TPD Act) where the Respondent can approve or refuse to approve a plan of subdivision. In this case a refusal was issued, giving rise to the application of review as provided for in s 26(1)(a)(i) of the TDP Act.
Section 5AA of the TPD Act provides for statements of planning policy and the Tribunal is required "to have due regard" to such statements under s 61(1)(a) of the TPD Act.
Of importance is Statement of Planning Policy No 1 – State Planning Framework Policy – Variation No 1 (SPP1) which unites various state and regional policies, strategies and guidelines to provide a context for decision making on land use, subdivision and development.
Specific policies relevant to this matter under SPP1 include:
•Statement of Planning Policy (3.1); Residential Design Codes of Western Australia 2002 – (Codes).
•Policy DC 2.2; Residential Subdivision (DC 2.2).

Respondent's Position

The position of the respondent is outlined in the respondent's Statement of Issues, Facts and Contentions prepared by the State Solicitor for Western Australia dated 14 December 2005. It broadly contends:
(a)The provisions of TPS 9, the GC Policy, the GDD Guide and the DGHP Plan all place significant emphasis on the issue of conservation and heritage and the maintenance of the historic character of the town.
(b)The lot configuration and streetscape are important factors in the maintenance and heritage of the town with the typical lot configuration in the immediate locality being of parallel rectangular Lots. The proposed battleaxe configuration would be contrary to cl 3.2 and cl 3.4 of the GC Policy as it does not accord with the town's subdivision pattern, street layout of the town or typical orientation and configuration of Lots.
(c)The prevailing historic streetscape within the GC Precinct consists of a building line in close proximity to the road frontage to provide a distinct street wall. The battleaxe configuration is contrary to Key Objective No 1 of the GC Precinct which is to encourage the conservation of buildings and streetscapes of townscape and heritage significance.
(d)The proposed car park will result in a formal arrangement of hard surfacing and could require the removal of at least one centrally positioned tree which forms part of the existing streetscape.
(e)The proposed car park will be obtrusive rather than the existing informal area with its existing vegetation which creates an overall impression of soft, natural landscaping which is visually non‑intrusive.
(f)The proposed subdivision does not satisfy the minimum site area of 2000 square metres for an R5 coding. The proposed smaller lot of 668 square metres is 66.6% below the minimum lot size requirement for R5.
(g)One of the purposes of Amendment 292 to TPS 9 to recode the GC Precinct to R5 was to limit battleaxe subdivision in Guildford.
(h)The prevailing residential lot pattern within the immediate locality and the wider GC Precinct is historic and consists primarily of parallel rectangular Lots with road frontage. Approval of this subdivision would undermine the City's long term objective to conserve and enhance the character of the GC Precinct and would set an undesirable precedent for planning in the area.

Applicant's position

The position of the applicants is outlined in both the application for review and the applicants' Statement of Issues, Facts and Contentions dated 10 January 2006. They argue:
(a)The existing Lots 8 and 9 are capable of being developed in their own right individually, notwithstanding that their areas are below the minimum indicated in TPS 9.
(b)As the proposal is to rationalise the boundaries of the two existing Lots only and does not create an additional lot, the Respondent's Policy DC 2.2 has to be applied having regard to the specific circumstances relating to the land.
(c)The rationalisation of lot boundaries will uphold the existing development strategy for the shop and its associated parking on proposed Lot 101. The shop is a permissible use in a residential zone under TPS 9.
(d)The applicants acknowledge that they are required to seek planning approval for a residence on proposed Lot 102 complying with an R20 coding, and to meet the requirements of the Department of Environment and Swan River Trust.
(e)The existing streetscape composition in Johnson Street south of James Street is variable and is composed of the Guildford Hotel, eight houses, and the Guildford Primary School and oval to the west. On the east side of Johnson Street is a disused service station/car yard, a heritage cafe/restaurant, single houses and a petrol filling station/convenience store at the intersection of Helena Street. South of Helena Street are some houses, the subject land and an open space reserve.
(f)The existing development pattern on the subject site has existed for about 30 years and provides some order and balance at the interface with the open space reserve to the south.
(g)The proposed lot configuration would maintain and enhance the existing streetscape composition because any new development on the proposed Lot 102 would be located behind the Swan Valley Boutique on proposed Lot 101 and not have a detrimental impact on the existing streetscape.
(h)The proposal will uphold the character of the GC Precinct and the GDD Guide provisions.
(i)The new car park on proposed Lot 101 will maintain the status quo of the existing parking area and retain the existing landscape areas with some modifications.
(j)The proposal will protect the visual quality of the area and will not create an undesirable precedent for subdivision in the locality.

Planning issues

The principal issue in this review is whether an approval of the subdivision proposal would prejudice the prime intent of the public authorities involved to preserve the historic character of Guildford. An examination of relevant provisions of TPS 9, the GC Policy, the GDD Guide and the DGHP Plan is necessary along with the issues of streetscape, nonconforming use and undesirable precedent. An examination of the respondent's draft set of subdivision conditions is also required.

TPS 9

The provisions of cl 2.5.1 of TPS 9 allow for the designation of conservation precincts. The subject land falls within the GC Precinct as identified in the GC Policy.
In 1996, the subject land was rezoned from a previous R20 coding to R5. The action was part of Amendment 292 to TPS 9 and the Scheme Amendment Report states:
"The Scheme Amendment is the result of Council's review of its Guildford Conservation Policy …. This review identified the inadequacy of the existing TPS in achieving Policy objectives of conserving the historic subdivision pattern …streetscapes and architectural character of the Guildford historic town.
The TPS has Residential Planning Codes that do not preclude battleaxe subdivision, subdivision or grouped dwellings occurring within Guildford. In contrast, cl 3.2, cl 3.3 and 3.5 of the Guildford Conservation Policy, generally precludes battleaxe subdivision, subdivision or grouped dwellings occurring within Guildford.
The Guildford Conservation Policy does not have the status of positive law. The Policy must be referred to by Council and the Commission must have regard to the policy when dealing with planning proposals, [but] are not bound by it.
The Minister for Planning has given an opportunity for Council to prepare this amendment to the TPS No 9, to address the inconsistency between the R‑Codes and the Guildford Conservation Policy.
It was recognised that an amendment to the scheme was needed to introduce a new R‑Coding in Guildford to bring the TPS R‑Codes into line with Council's Guildford Conservation Policy."
It is clear to the Tribunal that Amendment 292 to TPS 9 was specifically designed to provide statutory support to the broad objectives of the GC Policy and to overcome the inconsistencies between the two documents.

Guildford Conservation Policy

The GC Policy recommends general principles for the conservation of the Town. It provides:
"3.2The subdivision pattern and street layout of the town be protected from further subdivision wherever possible;
3.3Residential subdivisions be only permitted in certain circumstances such as in areas which have been degraded by industrial uses… and which would not result in the loss of historic buildings, their gardens or setting;
3.4Where subdivisions are permitted, they are to reflect the orientation and configuration of Lots and the street layout of the town which would have been typical of the Town's character prior to 1930 …"
The GC Policy is supported by various strategies which aim to ensure that new developments respect the historic fabric of the town and that infill developments do not impact detrimentally on the character of streetscapes or the integrity of heritage places.

Guildford Design and Development Guide

A key objective of the GDD Guide is as follows:
"Heritage: encourage the conservation of buildings and streetscapes of townscape and heritage significance."
The principal point of relevance here is that the proposed subdivision should not detract from the existing streetscape.

Draft Guildford Hazelmere Place Plan

One of the objectives of the DGHP Plan is to:
"retain and strengthen the heritage values and village character of the Guildford Hazelmere place area."
Once again the intent is to ensure that subdivision and development proposals do not destroy the historic character of Guildford by detracting from the existing streetscape.

Residential Design Codes of Western Australia 2002 (Codes)

Under cl 3.1.3 of the Codes the respondent or a council may approve a minimum site area less than that specified in Table 1 provided that the proposed variation meets certain criteria. The criteria include a provision that the proposed variation be no more than 5% less in area than that specified in Table 1.
Under column 3 of Table 1 in areas coded R5, the average lot size for a single house or grouped dwelling must be a minimum of 2000 square metres. As the proposed lots will be 668 square metres and 685 square metres, the lot size requirements of the R5 code, even accounting for the 5% provision, cannot be met.

Residential subdivision (DC 2.2)

The respondent's policy in relation to battleaxe subdivision is outlined in cl 3.6.4 and cl 3.6.5 of DC 2.2. Clause 3.6.4 states:
"Where local governments consider that battleaxe subdivisions are likely to seriously threaten the character of an established residential area which ought to be protected (for example, heritage precincts or special design control areas) density controls and other policies may be included in town planning schemes to limit or otherwise ensure that battleaxe subdivisions are in keeping with their surroundings. Policies should take into account the character of the particular area but should not be unduly prescriptive."
Clause 3.6.5 states:
"In areas which are subject to the Codes, the minimum lot size will be as set out in Clause 3.1.2 and Column 4 of Table 1 of the Codes. The Commission will not permit reductions in the minimum or average lot sizes set by the Residential Design Codes in respect of battleaxe subdivisions."
In this matter, cl 3.6.4 directly relates to the circumstances contemplated by Amendment 292 to TPS 9. However, cl 3.6.5 has no relevance in the case of an R5 coding as Column 4 of Table 1 does not specify a minimum lot area for a rear battleaxe lot.
There is a curiosity here with respect to the "R" codings and subdivision and development as explained in par 23 on page 5 of the respondent's section 24 bundle:
"As the City of Swan generally applies R20 coding when assessing applications for development within R5 coded Lots of the conservation precinct, it has confirmed that the development capability of the rear lot is not so constrained as to prohibit the construction of a dwelling meeting Codes requirements on that lot."
The effect of this advice is that it appears that if the proposed rear battleaxe lot was approved by the Tribunal, any residential development on the lot would be assessed against the R20 criteria of the Codes.

Streetscape

The Codes explain streetscape in the following way under Design Element 3.2, Element 2 – Streetscape:
"Several factors that are important to streetscape and local character do come within the scope of residential control…These include the appearance of buildings, street setbacks, lot frontages, setbacks between buildings, driveways, and fences, walls, carports, and other developments within the street setback area."
It is clear from the witness statement of Mr S Ramanathan, a qualified town planner and agent for the applicants, that in his cl 8.1.1 he argues that streetscape should be assessed south from the intersection of Johnson Street and James Street to the regional parks and recreation reserve, and that both sides of Johnson Street should be included in that assessment.
The view of the respondent is explained by Ms K Zagwocki, a qualified town planner with the Department of Planning and Infrastructure (DPI), under cross‑examination from Mr Ramanathan:
"We're looking at the streetscape block in the immediate vicinity of the subject land."
In the view of the Tribunal, an assessment of the overall streetscape can only be made if both sides of Johnson Street south of James Street to the regional parks and recreation reserve are taken into account.

Non conforming use rights

On 21 February 1992, an approval was given by the City for the sale of antiques, curios and ladies clothing for Lots 8 and 9, Johnson Street. The effect of this approval is that the shop operates from Lot 8 with associated parking on Lot 9.
In answer to a question on nonconforming use rights from Mr Ramanathan, Mr S Tan, Principal Planner for the City, answered "yes" to the following question:
"So, that means that the non‑conforming use for the carparking and the shop, Swan Valley Boutique, are on proposed lot 101 and it doesn't extend to proposed lot 102?"
Although not a lot turns on this point, the Tribunal accepts that, if the subdivision was to proceed, the existing shop and associated car parking could continue on the proposed Lot 101.

Undesirable precedent

The question of precedent is outlined in the witness statement of Ms K Zagwocki, for the respondent at par 45. She states:
"Approval of the application may set an undesirable precedent for the approval of similar applications within the locality which are inconsistent with the standard provisions of the R Codes. The cumulative effect of any such approvals would be detrimental to the amenity and character of the locality and undermine the heritage objectives for the Guildford Townsite."
In his witness statement, Mr S Ramanathan argues that the proposal will not create an undesirable precedent because of the specific circumstances of the case. His arguments revolve around the point that the proposal is simply a reconfiguration of existing lot boundaries and will uphold the existing development pattern and streetscape composition along Johnson Street.
The Tribunal's view is that this particular case must be considered on its specific merits, and that the matter of precedent is only one issue to be taken into account.

Draft subdivision conditions

A draft set of "without prejudice" subdivision conditions was received by the Tribunal from the respondent on 24 January 2006.
Of the 16 draft conditions listed, only conditions 3, 4, 5, 8, 11, 14, 15 and 16, were not challenged by the applicants in their response of 6 February 2006.
In the view of the Tribunal, the critical issue to be resolved, if the subdivision was to proceed, is that of the number and location of crossovers from the proposed lots onto Johnson Street.

Assessment of proposal

The application for review before the Tribunal relates to Lot 8 (668 square metres) and Lot 9 (685 square metres) located on the eastern side of Johnson Street, Guildford. The two adjacent lots are at the southern edge of a group of seven residential zoned lots south of Helena Street. Lot 8 contains an existing shop (Swan Valley Boutique) for the sale of ladies clothing, whilst Lot 9 is predominantly used for associated car parking purposes. Both lots contain established eucalypt trees with one large tree in line with the single existing crossover into Lot 9.
What is proposed, is to reconfigure the existing lot boundaries to create Lot 101 (668 square metres) and Lot 102 (685 square metres) in battleaxe form with Lot 101 to contain the existing shop and car parking area and Lot 102 to gain access via a 4 metre wide access leg to an effective lot area at the rear of some 565 square metres. It is intended that a new residence would be built on proposed Lot 102, which would have its southern and eastern boundaries adjacent to the existing regional parks and recreation reserve.
The important question of heritage is addressed in the witness statement dated 24 January 2006 of Ms M Trlin, a qualified town planner with the City. She explained that in 1983, the "Guildford Historic Town" was placed on the National Trust's classified list and on the register of the National Estate in 1989. In 1993, the Guildford townsite was designated as a Conservation Precinct under TPS 9, giving it special heritage significance.
The existing building on Lot 8 is listed on the City's Municipal Inventory of Heritage Places and is on the interim list for the State Register for the Heritage Council of Western Australia.
The importance of heritage places and their conservation can be seen by the efforts of the City to include relevant provisions in its TPS 9 to allow for the designation of conservation precincts, and through a succession of planning documents in the form of the GC Policy, the GDD Guide and the DGHP Plan.
In 1996, an Amendment No 292 to TPS 9 was specifically designed to conserve the historic subdivision pattern, streetscapes and architectural character of Guildford. The introduction of an R5 coding as part of the amendment was seen as a way of supporting the broad objectives of the GC Policy.
The importance of historic considerations was addressed in Peter J and Janet C Moulin and Town of Cottesloe [2002] WATPAT 23; 2 August 2002:
"19 … there is no justification for allowing historic considerations for precincts to be the sole criterion of the amenity of the locality. Historic considerations should not dominate the planning agenda. To do so is an error that is not within the purview of proper planning principles."
The point to be made here is that historic considerations, as important as they are, are just one factor along with other aspects of amenity such as noise, traffic, safety, privacy, streetscape and so on, that need to be taken into account in an overall planning assessment. It is a matter of judgment as to the weight given to each factor.
On the question of the Codes, it has been explained in [28] and [29] above, that the proposed subdivision cannot meet the minimum lot size requirement of 2000 square metres in a residential zone with an R5 coding as specified in Table 1 of the Codes.
However, as mentioned in [33] above, the curiosity here is that the City applies the provisions of the R20 coding when assessing applications for development in areas coded R5 and, as already advised by the City, a dwelling could be constructed on the proposed Lot 102.
Again, on the question of subdivision and development, the Swan River Trust raised no opposition to the proposal other than requiring a development to be setback 10 metres or 20% of the average depth of the lot, whichever is the lesser from the landward boundary of the parks and recreation reserve. These requirements could be met by the subject land which, although within the so called 1 in 100 year flood fringe, does not fall within the floodway itself.
The importance of the Codes in guiding subdivision and development decisions by public authorities in Western Australia, and influencing decisions by the Tribunal, is not in question. However, they are put in context in J & K Kyrwood v Western Australian Planning Commission [2002] WATPAT 15:
"9The approach of the Tribunal and the Commission …is to take the R Coding as a starting point and not as the end of the deliberation. The duty of all planning authorities is to make a proper planning decision even if this is in conflict with the requirements of Table 1."
On the question of DC 2.2, the respondent puts great weight on the provisions of cl 3.6.4 in relation to battleaxe subdivisions. However, a careful reading of the clause shows that its intent is to limit the number of battleaxe Lots in heritage precincts, or to ensure that they are in keeping with their surroundings. The intent is not necessarily to eliminate them altogether.
On the matter of streetscape both parties produced photographs of properties within Johnson Street which were of assistance to the Tribunal in assessing the likely effect of a battleaxe subdivision on the surrounding streetscape. As explained in Peter J and Janet C Moulin and Town of Cottesloe:
"20The mistake made by the Town is to require that the streetscape be preserved by a rigid adherence to the existing historic elements. This is a mistake because the proper task of the Council is to determine whether the overall amenity is preserved. It is possible that this may encompass developments that do not conform to the existing historic elements yet still allow the amenity to be maintained. It may be that what is proposed will be congruent with the existing streetscape even though it introduces a new element or architectural device."
In the view of the Tribunal, it is hard to imagine that if the existing shop and parking area are retained on the proposed Lot 101, that the 4 metre wide access leg of proposed Lot 102 fronting Johnson Street would not be congruent with the existing streetscape, even though a new element (access leg) has been introduced. This would be particularly so if access to both Lots was limited to a single crossover via the battleaxe leg of proposed Lot 102 with reciprocal rights of access with proposed Lot 101. The existing large tree close to and opposite the existing crossover could then be preserved.
On nonconforming use, it has already been explained in [40] above that if the proposal was to proceed, the existing nonconforming use rights would be retained on proposed Lot 101 only. However, as advised by the City in their response to the respondent on the subdivision on 21 July 2005, a development application for the car parking area would be required.
Although outside the matter under consideration at this time, it would seem prudent, in view of information before the Tribunal, that an informal parking area in sympathy with the surroundings to accommodate the required seven to eight parking spaces would be more desirable than a formal sealed area.
On the matter of precedent, the respondent submitted that if the proposed subdivision was allowed, it could give rise to similar applications and in so doing undermine the heritage objectives of the Guildford Townsite. The Tribunal is reluctant to place great weight on the precedent argument, given that the circumstances relating to this case are unlikely to be repeated elsewhere in the immediate locality. The Tribunal accepts that a particular subdivision can result in an undesirable precedent and that it is a valid consideration but, as explained in Aspen Pty Ltd v State Planning Commission, (Unreported; Appeal No 13 of 1988, 21 October 1988) it is not treated as a "stand alone" argument and is but one factor to take into account.
If the subdivision was to proceed, the Tribunal takes the view that the proper planning decision is to restrict access onto Johnson Road to one crossover only via the battleaxe access leg of proposed Lot 102. This is because of the relatively fast moving traffic at this point. The issue between the parties over draft conditions 1, 2, 6 and 7 would then fall away in favour of the respondent.
The Tribunal has no difficulty with draft conditions 9, 12 and 13 as their relevance would be assessed by the City, although it concurs with the applicant that draft condition 10 requires clarification to include reference to the use of the R20 code by the City in assessing development applications.
The Tribunal also takes the view that an additional condition requiring a development application over proposed Lot 102 would assist in ensuring that the proposed building setbacks would meet the requirements of both the City and the Swan River Trust, and that a nominated building envelope would help assess the effect of a proposed building on existing vegetation. An approval to a development application should be obtained prior to this new condition being cleared by Council.

Conclusions

An important consideration before the Tribunal is that it has always been possible to construct a residence on existing Lot 9, but the effect of this would have been to eliminate the parking associated with the existing shop on Lot 8. If this had in fact occurred, it is a matter of conjecture whether the existing shop would have continued to operate without easy access for clients to park, or whether it would have closed and an application made for another use or a proposal to demolish the shop and build a residence on Lot 8.
In his evidence before the hearing on the heritage value of the shop, which is listed on the City's Municipal Inventory for Heritage Places, Mr Tan for the City replied:
"…we will not support demolition or new development to replace that building there."
Although this may be so, the matter would still be the subject of much public debate; with proper process eventually deciding the issue.
In his closing statements Mr J Algeri for the respondent explained:
"… the subdivision would not necessarily retain the existing shop."
This is a fair point to make but it would seem to the Tribunal that if the proposed subdivision was to occur, that there is more likelihood that the shop and its associated parking would remain than not.
What should have occurred when the current uses on Lots 8 and 9 were approved, was an amalgamation of the two lots as a condition of development approval. This did not happen.
The principal consideration in this review is whether an approval would prejudice the prime intent of the relevant public authorities to preserve the historic character of Guildford. The Tribunal acknowledges the importance to these bodies and the wider community as to the value of this place and has no desire to erode a succession of planning documents designed to support the conservation objectives for Guildford. However, each case must be determined on its particular merits.
In the view of the Tribunal, whether the matter is examined from the point of view of existing policy or guidelines, streetscape or the question of undesirable precedent, it is hard to see how the creation of a single battleaxe lot with an associated residence at this specific location could prejudice the historic character of Guildford. In fact, the specific subdivisional conditions put in place may assist.
What should be contemplated by the conditions, if sensitivity to the environmental surroundings is followed by both parties and the City, is that the existing shop with a non‑intrusive car park will continue, a single crossover to Johnson Street will provide access to both proposed lots in order to limit ingress and egress to one point only, and the existing large tree opposite the present crossover will be retained. Also, an approval should be required for a new residence on proposed Lot 102 which meets the building setback requirements of the City and the Swan River Trust. A building envelope should be specified and some judicious planting required in order to complement the existing vegetation on site. What should not occur is an approval for a building completely out of character with the historic surroundings such as that on Lot 6 Johnson Street, which is located two lots north of the subject land.

Orders

For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is allowed and the decision under review set aside.
2.The subdivision application lodged with the respondent on 19 May 2005 is approved, subject to conditions.
3.Pursuant to s 29(5)(b) and s 82(1) of the State Administrative Tribunal Act 2004 O 1 and O 2 do not come into effect until such time as the conditions referred to in O 2 are finalised, at which time the Tribunal will provide a consolidated order setting out all of the conditions of approval.
4.The respondent is to file with the Tribunal and serve on the applicant, a revised set of conditions within 14 days of this order, and the applicants are to file with the Tribunal and serve on the respondent a statement agreeing to or identifying any of the draft conditions which they object to, stating briefly the reason for each objection within seven days thereafter.
5.The parties are to have regard to [66] to [68] of this review in relation to O 4.

I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER