Rocca & Anor and Western Australian Planning Commission
[2007] WASAT 110
•15 MAY 2007
ROCCA & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 110
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 110 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:407/2006 | 9 MAY 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) | 15/05/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed and subdivision approval refused | ||
| B | |||
| PDF Version |
| Parties: | GUISEPPE ROCCA PAMELA MARGARET ROCCA WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision application 56 lot subdivision Scheme states subdivision should not proceed unless it accords with a properly prepared and approved outline development plan Outline development plan approved by local government Scheme states that once local government resolves to approve an outline development plan for land with potential for subdivision it shall send it to the Commission and request the Commission to endorse and adopt the plan as the basis for its approval subject to conditions of subdivision within the plan area Outline development plan not sent to and not endorsed by Commission Whether subdivision is capable of approval Whether conflict with Scheme is of a minor nature Whether approval is consistent with general intent of Scheme Whether approval of subdivision would prejudice orderly subdivision of broader development area Drainage Road pattern Public open space Infrastructure cost sharing Whether insertion of development contribution areas provisions in draft Scheme seriously-entertained planning proposal and, if so, weight to be accorded |
Legislation: | City of Swan Town Planning Scheme No 9, cl 6.2.1, cl 6.2.1.1, cl 6.2.1.5, cl 6.2.3.1(b), cl 6.2.3.1(c), cl 6.2.3.2 Draft City of Swan Local Planning Scheme No 17 Planning and Development Act 2005(WA), s 135, s 138, s 138(2), s 138(3), s 138(3)(c), s 251(1), s 253(3) Town Planning and Development Act 1928 (WA), s 20(5) |
Case References: | Barrett-Lennard and Western Australian Planning Commission [2006] WASAT 319 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 Yellow Express Carriers Ltd v Sydney City Council (1964) 10 LGRA 330 |
Orders | 1. The application for review is dismissed.,2. The deemed refusal of the subdivision of Lots 353 and 354, Orchard Avenue, Midvale into 56 lots is set aside and a decision is substituted that subdivision approval is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ROCCA & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 110 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
- PAMELA MARGARET ROCCA
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision application - 56 lot subdivision - Scheme states subdivision should not proceed unless it accords with a properly prepared and approved outline development plan - Outline development plan approved by local government - Scheme states that once local government resolves to approve an outline development plan for land with potential for subdivision it shall send it to the Commission and request the Commission to endorse and adopt the plan as the basis for its approval subject to conditions of subdivision
(Page 2)
within the plan area - Outline development plan not sent to and not endorsed by Commission - Whether subdivision is capable of approval - Whether conflict with Scheme is of a minor nature - Whether approval is consistent with general intent of Scheme - Whether approval of subdivision would prejudice orderly subdivision of broader development area - Drainage - Road pattern - Public open space - Infrastructure cost sharing - Whether insertion of development contribution areas provisions in draft Scheme seriously-entertained planning proposal and, if so, weight to be accorded
Legislation:
City of Swan Town Planning Scheme No 9, cl 6.2.1, cl 6.2.1.1, cl 6.2.1.5, cl 6.2.3.1(b), cl 6.2.3.1(c), cl 6.2.3.2
Draft City of Swan Local Planning Scheme No 17
Planning and Development Act 2005(WA), s 135, s 138, s 138(2), s 138(3), s 138(3)(c), s 251(1), s 253(3)
Town Planning and Development Act 1928 (WA), s 20(5)
Result:
Application for review dismissed and subdivision approval refused
Category: B
Representation:
Counsel:
Applicants : Mr DJ Marsh
Respondent : Ms JE Shaw
Solicitors:
Applicants : Hotchkin Hanley
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Barrett-Lennard and Western Australian Planning Commission [2006] WASAT 319
(Page 3)
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Yellow Express Carriers Ltd v Sydney City Council (1964) 10 LGRA 330
(Page 4)
Summary of Tribunal's decision
1 Mr and Mrs Rocca bought land with the intention of subdividing it for residential purposes. The local planning scheme stated that subdivision should not proceed unless it accords with a properly prepared and approved outline development plan. The local government had previously approved an outline development plan for the land, but, contrary to the scheme, had apparently not sent it to the Commission for its approval. Prior to Mr and Mrs Rocca's purchase of the land, the local government certified that the outline development plan applied to the land. Following the purchase, Mr and Mrs Rocca sought approval of a 56 lot subdivision.
2 The Commission contended that the proposed subdivision was incapable of approval in consequence of s 138(2) of the Planning and Development Act 2005 (WA) and the scheme provision. Section 138(2) precludes approval of a subdivision application that conflicts with a provision of a local planning scheme unless one of six exceptions applies. The Commission argued that the proposed subdivision was incapable of approval, because:
• it did not accord with a properly approved outline development plan; and
• it did not accord with a properly prepared outline development plan.
3 Mr and Mrs Rocca argued that one of the six exceptions was satisfied, namely, that the conflict was of a minor nature or that the approval was consistent with the general intent of the scheme.
4 The Tribunal determined that the subdivision application was not capable of approval as it did not accord with an outline development plan that had been approved by the Commission. The conflict with the scheme was fundamental and the approval was not consistent with the general intent of the scheme, which was relevantly that a subdivision approval should only be granted after comprehensive planning in the form of an outline development plan approved by the Commission. The Tribunal noted that s 138(2) had effected a significant change to planning law concerning subdivision in Western Australia.
5 However, the Tribunal also determined that, if an outline development plan had been approved by the Commission, it would not be
(Page 5)
- open to it to launch what would be, in essence, a collateral attack on the proper preparation of the plan at the subdivision approval stage.
6 The application for review was dismissed and subdivision approval was refused.
Introduction
7 On 7 July 2006, Mr and Mrs Rocca purchased Lots 353 and 354, Orchard Avenue, Midvale (site). The site has a total area of approximately 3.9 hectares and is zoned "Urban" under the Metropolitan Region Scheme and "Residential Development" under the City of Swan Town Planning Scheme No 9 (TPS 9 or Scheme). Clause 6.2.1.1 of TPS 9 states that "[t]he subdivision and development of land zoned 'Residential Development' should not proceed unless it accords with a properly prepared and approved 'Outline Development Plan'".
8 Prior to purchasing the site, Mr Rocca visited the offices of the City of Swan (City or Council) for the purpose of finding out whether the site could be subdivided. Mr Rocca spoke with a Council engineer who he informed that he was proposing to purchase the site for the purpose of developing it. The Council engineer gave Mr Rocca a copy of the Orchard Avenue Outline Development Plan dated December 1994 showing roads and residential, open space and church development on eight allotments including the two comprising the site which was approved by the City (then Shire) as Outline Development Plan No 44 (ODP 44) on 26 July 1995. On 19 June 2006, the City issued a certificate to the bank which financed Mr and Mrs Rocca's purchase of the site which stated, in relation to town planning, that an adopted outline development plan applied to the site and specifically identified ODP 44. On 20 June 2006, the bank forwarded a copy of the City's certificate to Mr and Mrs Rocca.
9 Clause 6.2.1.5 of TPS 9 states as follows:
"Once Council resolves to approve an Outline Development Plan for land with potential for subdivision, it shall as soon as practicable, sen[d] to the State Planning Commission:
(a) a copy of the Outline Development Plan including any modifications;
(b) details of any conditions;
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- (c) a precis of any submissions or responses received within the stipulated time together with the Council's decisions in respect thereof;
and a request of the Commission to endorse and adopt the Plan as the basis for its approval subject to conditions or subdivision within the Plan area."
10 However, it appears that the Council did not send ODP 44 to the Commission for its endorsement and adoption. The Commission has no record of OPD 44 ever having been sent to it for consideration. The Commission has not endorsed and adopted ODP 44. Mr and Mrs Rocca were not aware of this fact when they purchased the site.
11 On 20 July 2006, Mr and Mrs Rocca's consultant town planners applied on their behalf to the Commission for its approval under s 135 of the Planning and Development Act 2005 (WA) (PD Act) of a 56 lot subdivision of the site with lots ranging in size from 471 square metres to 590 square metres. The Commission referred the proposed subdivision for comment to the Water Corporation, Telstra, the Fire and Emergency Services Authority, the (then) Department of Environment, Western Power, the Department of Education and Training, and the City. Of these authorities, only the City objected to the grant of subdivision approval.
12 As the Commission failed to make a decision in relation to the subdivision application, Mr and Mrs Rocca sought review by the Tribunal of the Commission's deemed refusal of their application in accordance with s 251(1) and s 253(3) of the PD Act.
Issues for determination
13 The following principal issues arise for determination in this review:
1) Whether the proposed subdivision is capable of approval.
2) Whether approval of the proposed subdivision would prejudice orderly subdivision of the broader development area.
3) Whether approval of the proposed subdivision conflicts with draft City of Swan Local Planning Scheme No 17 (draft LPS 17) and, if so, the weight to be given to the conflict.
(Page 7)
Is the proposed subdivision capable of approval?
14 Ms JE Shaw, counsel for the Commission, submits that the proposed subdivision is incapable of approval in consequence of s 138(2) of the PD Act and cl 6.2.1.1 of TPS 9.
15 Section 138(2) of the PD Act states as follows:
"(2) Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme."
16 As noted earlier, cl 6.2.1.1 of TPS 9 states that subdivision "should not proceed unless it accords with a properly prepared and approved 'Outline Development Plan'".
17 Ms Shaw submits that the proposed subdivision is incapable of approval for each of two reasons. First, Ms Shaw submits that the proposed subdivision does not accord with a properly approved outline development plan. Second, she submits that the proposed subdivision does not accord with a properly prepared outline development plan. In support of both these submissions, Ms Shaw contends that, on its proper interpretation, cl 6.2.1.1 of TPS 9 imposes a mandatory requirement before a subdivision application can be approved. In contrast, Mr DJ Marsh, counsel for Mr and Mrs Rocca, contends that the provision does not impose a mandatory requirement.
18 The Tribunal's task is "to ascertain the legislative intention [of this provision] by reference to the language of the [Scheme] viewed as a whole": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth)(1981) 147 CLR 297 per Mason and Wilson JJ. The word "should" can, depending on context, indicate an obligation: TheMacquarie Dictionary (4th ed, Macquarie, Sydney, 2005). The Tribunal considers that there are four clear textual indications which show that, on its proper interpretation, cl 6.2.1.1 imposes a mandatory obligation for approval by the Commission of an outline development plan prior to its approval of a subdivision application.
19 First, the objectives of the Residential Development zone include to:
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- • "Provide for the coordinated redevelopment of existing residential areas through the application of a comprehensive plan to guide subdivision and development to be know as an 'Outline Development Plan'" (cl 6.2.3.1(b)); and
• "Avoid 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 ..." (cl 6.2.3.1(c)).
20 These objectives contemplate that subdivision may not occur until an outline development plan has been prepared and adopted. The following statement in Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98, at [10], is equally apposite in relation to the requirement for an outline development plan in the Residential Development zone under TPS 9:
"The purpose of an ODP is to provide comprehensive strategic planning prior to the formulation, or at least approval, of specific subdivision or development applications in relation to land. Approval of the subdivision application in this case, prior to the adoption of an ODP, put the application 'cart' before the comprehensive planning 'horse'."
21 Second, cl 6.2.3.2 states as follows:
"Subdivision or development within the Residential [Development] Zone shall take place only after comprehensive planning. The Council, before assessing any proposal for subdivision or development of land within the zone, shall require the preparation and adoption of an Outline Development Plan in accordance with the provisions and procedures set out in sub-clause 6.2.1."
22 As this clause precludes the Council from assessing a subdivision application until comprehensive planning, in the form of an adopted outline development plan, has taken place in accordance with cl 6.2.1, it follows that cl 6.2.1.1 imposes a mandatory requirement for approval by the Commission of an outline development plan before its determination of a subdivision application.
(Page 9)
23 Third, cl 6.2.1.5, which is set out at [9] above, requires the Council to send an outline development plan that it has resolved to approve to the Commission with a request for the Commission "to endorse and adopt the Plan as the basis for its approval subject to conditions [of] subdivision within the Plan area". This clause also contemplates that cl 6.2.1.1 imposes a mandatory requirement for the approval by the Commission of an outline development plan before it can approve a subdivision.
24 Fourth, cl 6.2.1.1 states that "[i]n 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". There is no corresponding provision enabling the Commission to approve a subdivision without the preparation of an outline development plan. The absence of a corresponding provision is a further indication that cl 6.2.1.1 imposes a mandatory requirement.
25 As the Commission did not receive ODP 44 and has not approved it, approval of the proposed subdivision conflicts with cl 6.2.1.1 of TPS 9. It follows that, subject to s 138(3) of the PD Act, the Commission and the Tribunal on review is precluded from granting approval to the proposed subdivision.
26 Section 138(3) sets out six exceptions to the prohibition under s 138(2) upon the granting of subdivision approval that conflicts with the provisions of a local planning scheme. Mr and Mrs Rocca rely solely on the third exception which is in the following terms:
"In the opinion of the Commission –
(i) the conflict is of a minor nature; or
(ii) the approval is consistent with the general intent of the local planning scheme;" (s 138(3)(c)).
27 The conflict with TPS 9 is hardly of a minor nature. Approval of a subdivision application in the Residential Development 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. The fact that the Council approved ODP 44 does not mean that the lack of approval by the Commission is of a minor nature. The Scheme relevantly requires approval of an outline development plan by the Council, before it can approve development (except in certain special circumstances), and by the Commission, before
(Page 10)
- it can approve subdivision. Moreover, these authorities may have different strategic planning requirements given that they are concerned with the assessment of different planning applications.
28 Approval is also not consistent with the general intent of the Scheme. The objectives of the zone set out at [19] above clearly indicate that the general intent for land zoned "Residential Development" under TPS 9 is that a subdivision approval should only be granted after comprehensive planning in the form of an outline development plan approved by the Commission.
29 Mr Marsh relied on the decision of the Tribunal in Barrett-Lennard and Western Australian Planning Commission [2006] WASAT 319. In that case, the Tribunal found that the absence of an outline development plan was not critical in relation to the subdivision of land in a different zone under the Scheme. However, that decision is clearly distinguishable, because it proceeded on the basis that s 20(5) of the Town Planning and Development Act 1928 (WA) (TPD Act) continued to apply in relation to the determination of the review: at [28]. Section 20(5) of the TPD Act stated that in giving subdivision approval, "the discretion of the Commission is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration". In Barrett-Lennard and Western Australian Planning Commission the Tribunal noted, at [28], that "[i]t was therefore not necessary to address the issue of whether there would be discretion to approve the subdivision under [s 138(3)] of the PD Act as the subdivision was considered in the light of s 20(5) of the TPD Act". Section 20(5) of the TPD Act was repealed with effect from 9 April 2006 and is not relevant to the determination of this review. Section 138 of the PD Act effected a significant change to planning law concerning subdivision in Western Australia.
30 It follows that the proposed subdivision is not capable of approval and must be refused under s 138(2) of the PD Act.
31 As noted earlier, the Commission also contends that the subdivision application is not capable of approval, because ODP 44 is not a properly prepared outline development plan. Ms Shaw submits that ODP 44 is substantially deficient in that it:
• deals only with the site and not with the broader development area of which the site forms part;
• fails to deal with cost sharing; and
(Page 11)
- • fails to deal with water management.
32 Assuming that the Commission had adopted ODP 44 under TPS 9, on the proper interpretation of cl 6.2.1.1 of the Scheme, it would not have been open to it to launch what would be, in essence, a collateral attack on the proper preparation of the outline development plan. The (proper) preparation of an outline development plan must necessarily occur before its approval. The intent of the provision is that the Commission as approval authority must determine whether an outline development plan is properly prepared before it approves the plan. Once approved, an outline development plan is the strategic planning tool that guides landowners in the formulation of subdivision applications and the Commission in the assessment and approval subject to conditions of subdivision applications. The approval of an outline development plan materially affects reasonable expectations of landowners and the wider community in relation to the likely form of subdivision and development. It would be contrary to the intent of the Scheme to enable the approval authority in relation to an outline development plan which has approved it to attack the proper preparation of the plan at the stage of assessment of a subdivision application which accords with the plan.
Would approval of the proposed subdivision prejudice orderly subdivision of the broader development area?
33 In light of the Tribunal's determination that the subdivision application is not capable of approval, it is strictly unnecessary to consider the remaining two principal issues. However, given that the parties devoted considerable time to these issues in their evidence and submissions, and that determination of these issues may effect future proposals in relation to the site, the Tribunal will address them.
34 The Department of Housing and Works (DHW) apparently has extensive landholdings in the locality of the site. DHW has recently commenced preliminary work on an outline development plan/local structure plan to be known as the West Stratton Local Structure Plan (WSLSP) over a 93.3 hectare area including the site which forms approximately 4.2% of the area. To this end, DHW has engaged planning and environmental consultants. In January 2007, DHW anticipated that environmental and ethnographic studies would be completed in February 2007. It then intended to appoint consultants to undertake geotechnical, hydrology/drainage and traffic and transport studies. The anticipated time frame for completion of the WSLSP is at least two years.
(Page 12)
35 Mr Jason Bouwhuis, a town planner who gave evidence on behalf of the Commission, considers that approval of the proposed subdivision would prejudice orderly subdivision of the broader West Stratton area for essentially five reasons. Ms Shaw submits that the proposed subdivision warrants refusal on this account.
36 First, Mr Bouwhuis considers that the water management plan submitted on behalf of Mr and Mrs Rocca may have implications in terms of road connections with land surrounding the site. Because the site is subject to periodic inundation, the water management plan proposes that the housing lots be filled by 1.2 metres. The Department of Water (DW) has advised that it supports the water management plan in principle on the basis that it is relatively consistent with water sensitive design and the Department's guidelines. While significant details have not been addressed or require further information, the Department is satisfied that "stormwater management can adequately be addressed at the subdivision level for this proposal". Mr Bouwhuis concedes that DW is the relevant expert on management of water issues. The water management plan clearly shows that the subdivisional roads would not be raised and would connect to adjoining properties at natural ground level. Approval of the proposed subdivision would not, therefore, prejudice orderly subdivision of the broader area in relation to road connections.
37 Second, Mr Bouwhuis considers that the approval of the proposed subdivision might preclude options other than filling for house sites on adjoining land. However, it is common practice to fill sites to overcome periodic inundation. It is likely that subdivision of adjoining properties will involve similar filling of housing sites to that which is proposed in this application. Furthermore, as Mr George Hajigabriel, a town planner who gave evidence on behalf of Mr and Mrs Rocca, observed, there are common ways of managing the interface with the site, for example, by retaining walls which would not be significant in height, or sunken rear courtyards. Approval of the proposed subdivision would not prejudice orderly subdivision of the broader development area in this respect.
38 Third, Mr Bouwhuis considers that approval of the proposed subdivision would prejudice orderly subdivision of the broader area, because the proposed subdivision does not provide public open space. However, there is plainly adequate opportunity in the remaining approximately 89 hectares of West Stratton to provide the approximately 3900 square metres of public open space necessitated be the subdivision. The subdivision approval can be conditioned so as to facilitate the payment of cash-in-lieu of on-site public open space.
(Page 13)
39 Fourth, Mr Bouwhuis considers that approval of the proposed subdivision would prejudice orderly subdivision of the broader development area, and would be contrary to orderly and proper planning in any case, because of the absence of a mechanism for equitable infrastructure cost contributions between subdividers. However, as Mr Hajigabriel pointed out, neither the Commission's Development Control Policy 1.1: Subdivision of Land – General Principles (DC 1.1) nor its Planning Bulletin No 41 preclude the approval of subdivision subject to conditions which provide for appropriate infrastructure contributions in the absence of development contributions plans. The Tribunal considers that, if the proposed subdivision were capable of approval, it would be appropriate to grant subdivision approval subject to conditions facilitating the payment of cash-in-lieu for 10% of the value of the site on account of public open space and requiring Mr and Mrs Rocca to upgrade public roads adjoining the site to an appropriate standard. There is no evidence that approval of the proposed subdivision would give rise to the need for other infrastructure contributions.
40 Finally, Mr Bouwhuis notes that the water management plan discharges stormwater into an open drain which exists in an adjoining road. Mr Bouwhuis considers that this is "something upon which the City (who manages this drain) may wish to comment". However, the Commission did not present any evidence from the City.
41 It follows that, if the subdivision application were capable of approval, it would not be refused on the basis that it would prejudice orderly subdivision of the broader area.
Does the subdivision conflict with draft LPS 17?
42 Draft LPS 17 involves a consolidation of TPS 9 and alignment with the Model Scheme Text which is Appendix B to the Town Planning Regulations 1967 (WA). Draft LPS 17 was publicly advertised for three months in 2005. On 17 October 2006, the Commission resolved to recommend that the Minister for Planning and Infrastructure require 10 modifications to be made to draft LPS 17 prior to final approval. The Minister approved this recommendation. The modifications include the replacement of the "Residential Deferred" zone with "Special Use" or "Residential Development" zone and the creation of "Development Contribution Areas" over land parcels which were zoned "Residential Deferred" in the advertised draft Scheme. As the site was zoned "Residential Development" in the advertised draft Scheme, it is not subject to this recommended modification. However, in a letter to the
(Page 14)
- Chief Executive Officer of the City, dated 28 February 2007, the Commission required the following modification to be made to draft LPS 17 for final approval by the Minister, and requested the Council to undertake the necessary modification and lodge the Scheme with the Commission for endorsement of final approval by 30 March 2007:
"In order to provide for contributions for infrastructure in the new development areas, the Commission's draft model provisions for Development Contribution Areas (Planning Bulletin No. 41) are to be inserted into Part 6 – Special Control Areas and each of the areas is to be designated as Development Contribution Area."
44 Assuming that the Commission had approved ODP 44, the Tribunal would not refuse the proposed subdivision, having regard to draft LPS 17. There is a real question as to whether the modification required by the Commission in its letter dated 28 February 2007 to the City is a seriously-entertained planning proposal in relation to areas that were not zoned "Residential Deferred" in the advertised draft Scheme, because this goes beyond the Commission's resolution and the Minister's approval. However, even if this modification were a seriously-entertained planning proposal, the inconsistency between the proposed subdivision and the modification would be given only limited weight, having regard to the principal considerations identified by the Tribunal in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [59]. In particular, although the modification addresses the proposed subdivision and appears to be based on sound town planning principles, its ultimate approval could not be regarded as relatively certain or imminent, given that the Council does not seem to have formed a view as to whether the modification requires public advertising and it was relevantly not the subject of the Commission's recommendation to, or approval by, the Minister. While the Tribunal recognises that the creation of Development Contribution Areas reflects sensible planning, the proposed subdivision would not be refused in the present circumstances for this reason.
Conclusion
45 The Tribunal has determined that the proposed subdivision is not capable of approval in consequence of s 138(2) of the PD Act and cl 6.2.1.1 of TPS 9. Section 138(2) prohibits the granting of a subdivision
(Page 15)
- approval that conflicts with the provisions of a local planning scheme unless one of the six exceptions set out in s 138(3) is established. The Tribunal considers that the exception relied on by Mr and Mrs Rocca, namely, that the conflict is of a minor nature or the approval is consistent with the general intent of the local planning scheme, is not established. The conflict in this case is fundamental, and approval would be inconsistent with the general intent of TPS 9, because the general intent of that instrument is that subdivision approval should only be granted after comprehensive planning in the form of an outline development plan approved by the Commission. Although the Council approved ODP 44, it was within the strategic planning discretion of the Commission to refuse the outline development plan or to require modifications to be made to it.
46 However, had the Commission approved ODP 44, the Tribunal would have granted subdivision approval in the circumstances of this case. The Tribunal does not consider that approval of the proposed subdivision would prejudice orderly subdivision of the broader development area. Furthermore, the Tribunal does not consider that the subdivision application should properly be refused on the basis of a conflict with draft LPS 17.
47 Mr Marsh submits, on behalf of Mr and Mrs Rocca, that the factual circumstances set in the introduction to these reasons must be weighed in the exercise of planning discretion against the issues raised by the Commission. He submits that Mr and Mrs Rocca have "done everything right" and have found themselves in an unenviable position owing to the City's apparent failure to send ODP 44 to the Commission for its approval. Mr Marsh relies on the observation of Else-Mitchell J in Yellow Express Carriers Ltd v Sydney City Council (1964) 10 LGRA 330 at 337 that the balancing of all relevant matters in a planning review "calls for the application of qualities of judgment which are basic to the exercise of judicial discretion and this is particularly so when, as here, one finds a sharp competition between the private rights of a landowner and the various aspects of public interest which, according to its modern conception, town planning is designed to serve". In Nicholls and Western Australian Planning Commission, the Tribunal, at [79], described his Honour's observation as "an eloquent expression of the process involved in the exercise of planning discretion ... concerning development and subdivision applications in Western Australia".
48 However, as the proposed subdivision is incapable of approval, an exercise of planning discretion does not arise in the circumstances of this case. If an exercise of planning discretion did arise, then, for reasons set
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- out earlier, the Tribunal would have granted subdivision approval to Mr and Mrs Rocca. The circumstances in which Mr and Mrs Rocca have found themselves are truly unfortunate. They appear to be the innocent victims of others' failings. They may well seek redress elsewhere. However, these circumstances cannot create or inform the exercise of planning discretion where discretion does not exist as a matter of law.
49 It follows that the application for review must be dismissed and the application for subdivision approval must be refused.
Orders
50 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The deemed refusal of the subdivision of Lots 353 and 354, Orchard Avenue, Midvale into 56 lots is set aside and a decision is substituted that subdivision approval is refused.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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