RUFUS and WESTERN AUSTRALIAN PLANNING COMMISSION
[2007] WASAT 281
•26 OCTOBER 2007
RUFUS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 281
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 281 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:196/2007 | 10 AUGUST 2007 | |
| Coram: | MR R EASTON (SENIOR SESSIONAL MEMBER) | 26/10/07 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application for review is allowed and subdivision approval granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | GLENDA LOUISE RUFUS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Townsite SPP 1 Development Control Policy DC 2.2 Residential Design Codes R2 coding 5% variation to minimum lot size Existing subdivision pattern Continuation of the subdivision pattern Extension of the subdivision pattern Immediate vicinity Draft Country Sewerage Policy Mandatory sewerage connection On-site effluent disposal systems Alternative Treatment Units (ATUs) Water quality in the Wilson Inlet – Wilson Inlet Nutrient Management Plan Nitrogen and phosphorus nutrients Small infill exemption Precedent |
Legislation: | Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), Sch 8 Planning and Development Act 2005 (WA), s 25, s 138, s 144(1), s 251(1), s 251(3) Residential Design Codes of Western Australia (2002), cl 3.1.3, Table 1 Shire of Denmark Town Planning Scheme No 2 Shire of Denmark Town Planning Scheme No 3, cl 5.2 Town Planning and Development Act 1928 (WA), s 5AA Waterways Conservation Act 1976 (WA) |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) Bojanich and Western Australian Planning Commission [2006] WASAT 315 Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101 Hart and Western Australian Planning Commission [2007] WASAT 187 Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 T & K McGregor v Western Australian Planning Commission (Town Planning Appeal No 103 of 2003) |
Orders | 1. The application for review is allowed.,2. The decision of the respondent to refuse the application to approve the subdivision of Lot 77 Inlet Drive, Denmark into two lots is set aside and a decision is substituted that subdivision approval is granted subject to the following conditions:,(1) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision (Western Power).,(2) Western Power provides only one point of electricity supply per freehold (green title) lot and requires that any existing overhead consumer service is required to be converted to underground (Western Power).,(3) If an existing aerial electricity cable servicing that land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will need to be made for the removal and relocation of that cable (Western Power).,(4) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lot(s) shown on the approved plan of subdivision (Water Corporation).,(5) At the applicant's expense, a site investigation is to be carried out under late winter (September/October) conditions to the satisfaction of the Local Government and the Health Department in order to verify the most suitable location for an on-site effluent disposal system on the proposed lots.,The site investigation is to be undertaken by a qualified consultant and tests performed consistently with the procedures laid out under Australian Standard 1547 (2000) or Sch 8 of the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA).,The qualified consultant is required to prepare a geotechnical report which includes:,• soil profile to a depth of at least 2.0 metres;,• soil permeability;,• water table encountered to a depth of 2.0 metres; and,• site topography and any other features such as rock outcrops and water courses (Local Government).,(6) Establishment of building envelopes that ensure all buildings and effluent disposal systems will be appropriately set back from new lot boundaries, areas of inundation and minimise the removal of vegetation to the specifications of the Shire of Denmark and satisfaction of the Department of Conservation and Environment (Local Government).,(7) Both proposed lots are to be serviced by an ATU for on-site effluent disposal to the specifications of the Local Government and Department of Health. The applicant is to replace the existing septic tank servicing the existing dwelling on the land with an ATU (Local Government).,(8) All existing septic sewer systems on the subject land including all tanks and pipes and associated drainage systems are to be decommissioned, removed, filled with clean sand and compacted (Local Government).,(9) The existing on-site effluent disposal system(s) are to be decommissioned in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). A pump out receipt from a licensed liquid waste contractor is to be provided to the Local Government as proof of decommissioning (Local Government).,(10) The applicant is to notify in writing prospective purchasers and successors in title of the lots created that reticulated sewerage is not provided and an ATU for on-site effluent disposal system, to the specifications of the Local Government and the Department of Health, will be required (Local Government).,(11) Construction of a crossover to service the new lot to the specifications of the Local Government (Local Government).,(12) Suitable arrangements being made for the drainage of the land to the specifications of the Local Government (Local Government). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RUFUS and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 281 MEMBER : MR R EASTON (SENIOR SESSIONAL MEMBER) HEARD : 10 AUGUST 2007 DELIVERED : 26 OCTOBER 2007 FILE NO/S : DR 196 of 2007 BETWEEN : GLENDA LOUISE RUFUS
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision Townsite SPP 1 Development Control Policy DC 2.2 - Residential Design Codes R2 coding - 5% variation to minimum lot size - Existing subdivision pattern - Continuation of the subdivision pattern - Extension of the subdivision pattern - Immediate vicinity - Draft Country Sewerage Policy - Mandatory sewerage connection - On-site effluent disposal systems - Alternative Treatment Units (ATUs) - Water quality in the Wilson Inlet – Wilson Inlet Nutrient Management Plan - Nitrogen and phosphorus nutrients - Small infill exemption - Precedent
(Page 2)
Legislation:
Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA), Sch 8
Planning and Development Act 2005 (WA), s 25, s 138, s 144(1), s 251(1), s 251(3)
Residential Design Codes of Western Australia (2002), cl 3.1.3, Table 1
Shire of Denmark Town Planning Scheme No 2
Shire of Denmark Town Planning Scheme No 3, cl 5.2
Town Planning and Development Act 1928 (WA), s 5AA
Waterways Conservation Act 1976 (WA)
Result:
Application for review is allowed and subdivision approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr A Funk (Acting as Agent)
Respondent : Mr K Pope
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988)
Bojanich and Western Australian Planning Commission [2006] WASAT 315
Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101
(Page 3)
Hart & Anor and Western Australian Planning Commission [2007] WASAT 187
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117
Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96
T & K McGregor v Western Australian Planning Commission (Town Planning Appeal No 103 of 2003)
(Page 4)
Summary of Tribunal's decision
1 This matter involved an application for review of the Western Australian Planning Commission's refusal of a subdivision application to subdivide Lot 77 Inlet Drive, Denmark into two lots; one being 1010 square metres and the other being 1014 square metres. Lot 77 was coded "R2" under the Shire of Denmark Town Planning Scheme No 3 and required a minimum site area of 5000 square metres. Lot 77, in close proximity to Wilson Inlet, was required to comply with the provisions of the Draft Country Sewerage Policy.
2 The particular circumstances of this case warranted a departure from the requirements of the local planning scheme and the Commission's policies. The proposal was to subdivide the lot similar to the original configuration of two lots which were approximately the same size as the proposed lots. The proposed subdivision would result in lots that were consistent in size and frontage with adjoining and nearby lots.
3 The Tribunal also determined that the proposal met the policy requirements that permitted an exemption to the mandatory sewerage provisions of the Draft Country Sewerage Policy. The Tribunal found that the proposal was a small infill subdivision that would complete an existing subdivision pattern where the lot sizes would be consistent with the existing pattern of subdivision and where there would be no potential for the creation of more than four additional lots in the immediate vicinity.
4 The application for review of the Commission's decision was allowed and conditional subdivision approval granted.
Introduction
5 These proceedings involve an application brought by Glenda Louise Rufus (applicant) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act). The Tribunal noted the application should have been made under s 251(3) of the PD Act and proceeded on that basis. The application was for a review of the decision of the Western Australian Planning Commission (respondent or WAPC) to refuse an application to subdivide Lot 77 Inlet Drive, Denmark (subject land) into two lots of 1010 square metres and 1014 square metres (Attachment 1).
6 The application was received by the respondent on 23 August 2006 and was refused on 15 March 2007 for the following reasons:
(Page 5)
- 1. The proposal does not meet the minimum 5000 square metre site area specified for the "R2" density code in Table 1 of the Residential Design Codes of Western Australia (2002) (Codes) and is therefore contrary to the Shire of Denmark's Town Planning Scheme No 3 (TPS 3 or Scheme), which applies an "R2" coding to the land.
2. The proposal does not comply with the small infill exemption available under the Country Sewerage Policy and cannot comply with the minimum site requirements of the Country Sewerage Policy required for large lot (2000 square metre) exemption from a mandatory sewer condition.
3. Approval to the subdivision would create a precedent for similar subdivision contrary to the "R2" coding, resulting in an unacceptable level of intensified unsewered development in the immediate locality which adjoins Wilson Inlet.
7 The applicant requested the respondent to reconsider its decision in accordance with the provisions of s 144(1) of the PD Act. The request for reconsideration was received by the respondent on 11 April, 2007. In a letter dated 3 May 2007, the respondent advised that it had decided to reiterate its previous decision. The letter stated in part:
"None of the grounds for reconsideration cited negated the issues listed on the refusal letter which are: (The respondent then listed the original three reasons of refusal)."
8 On 24 May 2007, the applicant lodged an application for a review of the respondent's reiteration of its earlier refusal.
Subject land
9 The subject land is described as Lot 77 Inlet Drive, Denmark. It has a 49.71 metre frontage to Inlet Drive (the western boundary), and the depth varies from 40 metres to 43.64 metres. The subject land has an area of 2024 square metres. There is a small fall of approximately 500 millimetres across the width of Lot 77.
(Page 6)
10 The subject land is approximately 3.5 kilometres south of the Denmark townsite and is approximately 220 metres west of the high water mark of Wilson Inlet.
11 The subject land contains an existing dwelling which will be contained within the proposed northern lot. The proposed southern lot is vacant.
12 The subject land was originally part of a 43 lot subdivision that was approved in two stages in 1967 and 1978, with Lunan Road and Harper Street being internal roads in the subdivision (refer to Attachment 2, which shows the current subdivision pattern after some amalgamations and the subdivision of Lot 151 into Lot 152 and Lot 153). The subject land was part of the 1978 subdivision and consisted of two approximately equal lots, Lot 69 and Lot 70 (refer to Attachment 3). A density coding equivalent to "R10" (average lot size of 1000 square metres) applied at the time of the original subdivision approvals.
13 Lot sizes in the subdivision vary from 12 528 square metres to 1011 square metres. The two lots to the north of the subject land and the three lots to the south are all 1024 square metres. The majority of the lots in the subdivision, which is located between Wilson Inlet and Inlet Drive, are less than 1200 square metres in area.
14 In 1984, Lot 69 and Lot 70 were amalgamated and became Lot 77.
15 A series of lots south of the subdivision between the road and the inlet are around 4500 square metres, and a series of lots on the other side of Inlet Drive are typically between 5000 and 6000 square metres.
Legislative Framework
16 The site is zoned "Residential - R2" in TPS 3.
17 There is planning framework at both a regional and Shire level to guide decision-making on the subdivision of this land.
Regional planning framework
18 The Statement of Planning Policy No 1 (SPP 1) was prepared under s 5AA of the now repealed Town Planning and Development Act 1928 (WA) (TPD Act) and has continued in existence under s 25 of the PD Act. SPP 1 sets out the key principles guiding planning decisionmaking on land use and regional development. SPP 1 establishes a central framework for State and regional policies, strategies and guidelines,
(Page 7)
- 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.
19 The Codes were also prepared under s 5AA of the TPD Act and have continued in existence under s 25 of the PD Act. One of the functions of the Codes is to set minimum lot sizes for land coded at the various residential densities ranging from "R2" (subject site) to "R160". The Codes have been adopted into TPS 3 and will be further discussed in the context of local planning framework.
20 Development Control Policy DC 2.2 Residential Subdivision (DC 2.2)is adopted under the provisions of SPP 1, and sets out the general principles to be used by the WAPC in determining applications for subdivision of Residential zoned land.
21 Clause 3.2.1 of DC 2.2 provides that the minimum lot size requirements of the relevant Code density will form the basis for the subdivision of residential land.
22 Clause 3.2.3 of DC 2.2 sets out the criteria to be used by the WAPC when considering an application where the proposed lot sizes are less than the minimum site area requirements of Table 1 of the Codes. The relevant criteria are where:
(a) the minimum lot size variation only applies to one lot in the subdivision;
(b) the variation reduces the area of that lot by no more than 5% of the average lot size specified in Table 1 or elsewhere in the Codes;
(c) the variation of the area of that one lot reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the Codes; and
(d) the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the Commission forms the opinion that it will have a particular beneficial outcome for the community.
(Page 8)
23 Clause 3.3.4 of DC 2.2 requires the WAPC to have regard to the Water Corporation's Draft Country Sewerage Policy (DCSP). It provides that:
"Outside the metropolitan region, the Commission will have regard to the Country Towns Sewerage - Subdivision Policy of the Water Corporation of Western Australia which specifies those towns or parts of towns, where the provision of sewerage is mandatory for new subdivisions, together with exemptions."
24 Clause 3.3.5 of DC 2.2 further provides that:
"(w)here the Commission is prepared to approve new residential lots without sewerage, it will need to be satisfied that a minimum unencumbered area of 150sqm of suitable shape is available for each dwelling for the installation of a suitable onsite effluent disposal system."
25 The DCSP was prepared in September 2002 under the authority of the four State Government Ministers, being: the Minister for Planning and Infrastructure; the Minister for Health; The Minister for Environment; and the Minister for Local Government and Regional Development. The DCSP was amended in September 2003.
26 Clause 7.3.1 provides that the WAPC will issue a planning policy adopting the DCSP by reference. Clause 7.3.2 provides that:
"The Executive Director, Public Health, will take this policy into consideration when deciding on the acceptability of applications for onsite wastewater disposal."
27 Clause 8 deals with the date of implementation but remains undated at this stage. The respondent contends that the DCSP is a seriouslyentertained proposal, and refers to T & K McGregor v Western Australian Planning Commission (Town Planning Appeal No 103 of 2003) where the then President, Mr P McGowan, stated at par 8 that:
"there can be no doubt that not only is [the Country Sewerage Policy] a seriously-entertained proposal in its own right … but in addition it has been formally elevated in terms of its application by reason of Clause 3.3.4 of DC 2.2."
28 Section 4 of the DCSP specifies where the provision of sewer is mandatory. Section 5 deals with exemptions. Section 6 and Appendix 1
(Page 9)
- set requirements for considering on-site wastewater disposal where discretion is granted under the exemptions of s 5. Relevant detailed provisions of the DCSP will be discussed later in these reasons.
Local planning framework
29 TPS 3 provides the framework for development of land within the Shire of Denmark (Shire).
30 Clause 5.2 adopts the Codes for the development of land for any of the residential purposes dealt with by the Codes. Clause 5.2.3 states:
"Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those Codes."
31 Table 1 of the Codes sets out the minimum site area requirements for the various density codings. The subject land is zoned "Residential" with an "R2" density coding under TPS 3, and the minimum site area requirement for "R2" coded land is 5000 square metres.
32 Clause 3.1.3 of the Codes provide that the respondent may approve a minimum site area less than that specified in Table 1 on condition that the variation is no more than 5% less in area than the area specified in Table 1.
33 In s 10 "Urban Policies and Strategies" of the Shire of Denmark Town Planning Scheme No 3 Scheme Report (TPS 3 Report), cl 10.1.4 "Densities" explains the reasons for the down coding introduced with the Scheme in 1994. The relevant part of this clause is quoted later in these reasons.
Issues
34 Before the hearing, the parties described the issues to be determined as follows:
A: Whether the proposed subdivision should be granted, having regard to:
(i) the "R2" coding of the site under TPS 3;
(ii) the minimum lot size provision in cl 3.2.3 of DC 2.2;
- (iii) the requirements of the Draft Country Sewerage Policy;
(iv) the possible creation of an undesirable precedent; and
- B: If the proposed subdivision conflicts with the planning framework, whether there is a proper basis to depart from them and approve the proposed subdivision.
35 These issues were initially identified by the respondent and discussed in the reasons for refusing the application for reconsideration. During the hearing, the respondent agreed to withdraw from the issue raised in relation to s 138 of the PD Act, being that the proposed subdivision conflicts with the provision of the local planning scheme, as the claim of conflict was very similar to that raised in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130, where the Tribunal found that approval of the proposed subdivision did not conflict with the provision of the Scheme.
36 All the other issues identified by the parties remain as matters to be determined by the Tribunal.
Whether the proposed subdivision should be granted having regard to:
(i) the "R2" coding of the site under TPS 3; and
(ii) the minimum lot size provision in cl 3.2.3 of DC 2.2
37 These two issues will be considered together because they involve similar principles, facts and contentions.
38 Ms Folvig, a senior planning officer employed by the Department for Planning and Infrastructure in Albany, stated that the proposed subdivision was a major variation from the intended requirements for the subject land and locality. TPS 3 and the Codes contemplate variations from the minimum lot size, but those variations are generally restricted to a 5% variation by cl 3.1.3 of the Codes. The proposed subdivision is an 80% variation. Ms Folvig stated that such a variation would not be consistent with the principal objective of TPS 3, which is to promote orderly and proper development of the Shire: "A variation of the magnitude sought by the proposed subdivision would result in a doubling of the density on the lots and cannot be considered minor".
(Page 11)
39 Ms Folvig gave evidence that the area has been progressively down coded from the zoning at the time of the creation of the original lots when lot sizes of 1000 square metres were permitted. This first change was the introduction of the Shire of Denmark's Town Planning Scheme No 2 (TPS 2) in 1980, where the zoning of the subject land and immediate locality was zoned "Residential 1", which required a minimum lot size of 2000 square metres. The second change was the gazettal of the current TPS 3, where the zoning density was further reduced to a density of "R2", which requires a minimum lot size of 5000 square metres.
40 Ms Folvig argued that the reason for the reduced density is explained in the TPS 3 Report, where the intent was to reduce potential for the creation of unsewered lots outside the sewerage pump station catchment areas. Clause 10.1.4 of the TPS 3 Report states:
"A substantial portion of the existing residential zoned area lies outside the catchment of the sewerage pump stations. It is considered that any extension of the sewerage network before the existing infrastructure is suitably utilized would be an inappropriate use of resources. Accordingly, the code densities for those areas outside the catchment of the existing pump stations have been selected to ensure that any new lots will be created at the R2 and R2.5 densities. These measures are designed to avoid further deterioration of the water quality of the Wilson Inlet from residential septic system leachates and nutrients from urban gardens."
41 Finally, Ms Folvig argued the proposed subdivision is inconsistent with the requirements of DC 2.2, where cl 3.2.1 provides that the minimum lot size requirements of the relevant density code will form the basis for the subdivision of residential land. Clause 3.2.2 of DC 2.2 lists criteria which are relevant to the respondent's consideration of an application below the minimum site area. Ms Folvig argued that the variation failed to meet the criteria because it applied to more than one lot; it would not have a particular beneficial outcome for the community; and at 80%, it was significantly beyond the 5% variation contemplated by the policy.
42 Mr Funk, for the applicant, argued that the application was unusual because it was the resubdivision of a lot created from the amalgamation of two lots. The proposed subdivision reinstated the original planning intentions for this part of the street. Furthermore, Mr Funk argued, the proposal would have a positive benefit because it would reinstate the
(Page 12)
- streetscape pattern of lots with similar frontages and sizes. The three lots immediately south of the subject land (Lots 71 - 73) are 1012 square metres, with frontages of less than 25 metres. The seven lots to the north of the subject land (Lots 68 - 67 and Lots 43 - 47) have similar frontages and sizes.
43 The applicant also argued that the site was sufficiently removed from Wilson Inlet not to be an environmental problem because the distance of approximately 250 metres would be sufficient to ensure that an Alternative Treatment Unit (ATU) would deal effectively with wastes without significant risk of leaching into Wilson Inlet. The applicant explained that ATUs are an alternative to septic tanks and are the preferred treatment system near environmentally sensitive areas.
44 Although the subdivision proposal is not a development, the Tribunal is required to give due consideration to cl 5.2.3 of TPS 3 and its obvious expectation that residential development on land coded "R2" requires a minimum site area of 5000 square metres and a minimum frontage of 50 metres. Furthermore, the Tribunal is required to give due consideration to DC 2.2. The Codes and DC 2.2 both provide guidelines to assist the respondent, and therefore the Tribunal, in the exercise of discretion when considering applications for lots less than the minimum required area.
45 Bullet point five of the Codes' Performance Criteria 3.1.3 permits the WAPC to approve the creation of a lot of lesser area if the proposed variation would "allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed." The proposal would facilitate the continuation of the streetscape pattern of housing on lots of around 1000 square metres and frontages of around 20 25 metres. However, cl 3.1.3 applies to the creation of "a" lot, and it works together with the first bullet point of cl 3.1.3 which indicates the variation is limited to 5%. The proposal involves the creation of two lots and the variation exceeds 5%. The way cl 3.1.3 is written suggests that a variation to the required lot area must meet the first bullet point "and" one of the subsequent five bullet points.
46 Clearly, the proposed subdivision does not meet the suggested criteria of either the Codes or DC 2.2. There is no defined particular community benefit. The proposal does not facilitate the protection of a heritage or environmental feature, and notably, it falls a long way short of the indicated variation of up to 5%.
(Page 13)
47 In the unusual circumstances of this application and where the proposal has planning merit, it is necessary to decide whether there is a valid reason to depart from policy requirements. This is a situation described in Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at 24, where:
"… the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant [to] the particular application."
48 The Tribunal finds that in this particular application it is appropriate to depart from the requirements of DC 2.2 and the generally parallel requirements of the Code's performance criteria cl 3.1.3 for the following reasons.
• The proposal reinstates the historical subdivision pattern. The subject land was originally two lots of 1012 square metres each. The proposal, with a minor variation to the original, creates two lots: one of 1014 square metres and the other of 1010 square metres.
• Before the subject land was amalgamated, it was part of a row of 12 lots, all with frontages of approximately 20 25 metres of Inlet Drive and all with site areas between 1012 square metres and 1118 square metres. The subdivision pattern facilitated the creation of an homogeneous streetscape pattern. After the amalgamation of the subject land into one lot, the streetscape pattern was potentially disrupted by the creation of a lot with a 50 metre frontage and greater than 2000 square metres in area.
• The proposed subdivision enables an existing dwelling to be fully contained within one lot and creates a second lot consistent with adjoining lot sizes. The proposal reestablishes the potential for an homogeneous streetscape pattern and is consistent with orderly and proper planning.
49 Based on the above planning grounds, it is appropriate on this occasion to depart from the requirements of TPS 3, the Codes and DC 2.2.
(Page 14)
50 However, there is one major and significant qualification. The reason for reduced density in this locality is related to the need to avoid further deterioration of the water quality of Wilson Inlet from residential septic system leachates and nutrients from urban gardens. Therefore, before finally determining whether it is appropriate to depart from the requirements of TPS 3 and DC 2.2, it is now appropriate to consider the next issue.
Whether the proposed subdivision should be granted having regard to the requirements of DCSP
51 This issue is of fundamental significance to the outcome of this review. The DCSP obtains its significance for two reasons:
1. the respondent is required to have regard to the DCSP by cl 3.3.4 of DC 2.2;
2. the TPS 3 Report specifically connected the reduced residential densities of R2 and R2.5 with need to protect the water quality in Wilson Inlet.
52 The respondent notes that the DCSP applies to all urban areas outside Perth and requires all new subdivisions to be provided with reticulated sewerage except where the discretionary provisions of the DCSP provide exemptions.
53 The respondent argues the proposal must be refused because the subject land does not have access to reticulated sewerage; the proposed subdivision does not qualify for any of the exemptions described in the DCSP; and because the proposed subdivision will cause a risk to the quality of water in Wilson Inlet.
54 Section 4 of the DCSP lists the mandatory provisions, and in cl 4.3, requires the provision of reticulated sewerage to all subdivisions "where the absence of sewerage is considered by the statutory authority, after considering the advice of consultative authorities, to endanger public health, the environment or the quality of underground or surface water supplies."
55 The respondent argues that any further increase in the density in the locality of the subject land, because of further subdivision, will present a risk to the quality of the water in Wilson Inlet.
56 The respondent referred the application to various third parties and recorded that both the Shire of Denmark and the Department of Health did
(Page 15)
- not support the proposal unless reticulated sewerage was available. The respondent also stated that the Department of Water (DoW) advised the proposed subdivision presented a threat to the quality of water in Wilson Inlet.
57 Section 5 of the DCSP describes various exemptions. The Tribunal accepts the respondent's contention that of the five listed exemptions, the only exemption applicable to the subject land is the exemption described in cl 5.1.
58 Clause 5.1 provides an exemption for Small Infill:
"Proposals for small infill subdivision or density development can be considered where there is no potential for the creation of more than four additional lots, dwellings or single residential equivalents in the immediate vicinity (generally interpreted as within the street block), so that the proposal completes rather than extends an existing pattern of subdivision. Lot sizes and land use shall be consistent with the existing pattern of subdivision or development."
59 The respondent argues that the exemption in cl 5.1 should not apply because:
"The logical completion of the existing pattern of subdivision in the immediate vicinity is the completion of the subdivision of former location 5430 and Lot 25 … on the basis of the proposed 1000 [square metres] lot size.
In addition to the subject land, this would provide for the subdivision of Lot 78 Inlet Drive and Lot 1 Lunan Road into two lots each, Lot 152 Lunan Road (measuring 5515 [square metres]) into five lots and Lot 153 (measuring 1.2527 hectares) into 10 lots (after allowing for the extension of Lunan Road), thus resulting in a total of 23 lots … the creation of 16 additional lots in the immediate vicinity."
60 The applicant argued that the exemption does apply in this particular situation because the proposed subdivision completes the subdivision pattern, whereas any subdivision of the large Lots 152 and 153 Lunan Road would extend the subdivision pattern. The applicant noted that Lot 152 and Lot 153 (formerly Lot 151) were intended as stage 3 of the subdivision plan for the locality and that stage 3 was never approved.
(Page 16)
61 The applicant then argued that apart from the subject land, there are only two other lots in the immediate vicinity (street block) that have the potential for subdivision: Lot 78 Inlet Drive (possible two lots) and Lot 1 Lunan Road (possible two lots). Therefore, there is only potential to create two additional lots and the proposal fits within the exemption permitted by cl 5.1 of the DCSP.
62 The applicant explained that the proposal involves the use of ATUs which the applicant asserted are superior to conventional septic tank systems. The proposal is to provide an ATU not only to the new lot, but to replace the septic system of the exiting dwelling with an ATU. The applicant concluded that the proposal will improve the environmental consequences of housing on the subject land rather than increasing the risk to Wilson Inlet.
63 Mr Gunby, the Program Manager and Acting Regional Manager for DoW, appeared as a witness for the respondent. Mr Gunby stated that since 1994, he had continuous involvement with the management of south coast estuaries, particularly the Albany harbours and Wilson Inlet. Mr Gunby stated that although the respondent did not seek the DoW's advice on the subdivision, the DoW was later asked for opinions by the respondent on the application of the DCSP in respect to the proposed subdivision and to comment on the condition of Wilson Inlet.
64 Mr Gunby explained that Wilson Inlet is affected by nutrient enrichment which has resulted in the increase of growth of seagrass and algae. The environmental problems of the inlet resulted in the establishment of a management authority under the Waterways Conservation Act 1976 (WA). In 2003, the management authority released a management plan that highlighted the need to reduce nutrient inputs into the inlet and detailed various actions to achieve that objective. The Wilson Inlet Nutrient Reduction Action Plan (WINRA Plan) was submitted as part of Mr Gunby's evidence.
65 Mr Gunby observed that although the majority of nutrients result from drainage practices and agricultural activity; groundwater, urban areas and urban stormwater also provide nutrients and have a particular impact on near shore environments. Action US 2 of cl 6.1 of the WINRA Plan requires that new residential development will be expected to be connected to the sewer. However, action US 1 of cl 6.1.4 does provide for domestic on-site effluent disposal.
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66 Mr Gunby observed that while it was not possible to say whether the creation of this particular lot would have an impact on Wilson Inlet, the general principle was that intensification of land use would create the potential for increased nutrient input into Wilson Inlet.
67 On the matter of ATUs, Mr Gunby stated it was impossible to comment on whether the use of two ATUs will have a net positive environmental impact compared to one traditional (septic) system. He noted that research in Western Australia credits ATUs with phosphorus reduction, but at this stage, the State Government does not recognise the manufacturers' claims of nitrogen reduction because of the lack of independent research. Mr Gunby noted that in Wilson Inlet near the proposed subdivision, there was extensive growth of a type of algae that was sensitive to nitrogen, and that nitrogen reduction was probably more critical than phosphorus reduction in this part of the inlet. However, under cross-examination Mr Gunby conceded that ATUs were better than traditional systems, but not perfect. He also agreed that 50 metres was the minimum setback from waterways, but stated the matter was too complex to rely on distance alone, as density, soil types and land slope were also factors to be considered.
68 The Tribunal accepts that nutrient management in Wilson Inlet is important. It notes that while the WINRA Plan states the urban area of the "Denmark townsite occupies only 0.1% of the Inlet's catchment and probably contributes only a small percentage of nutrients", intensification of urban activities in or near the Denmark townsite is a risk factor that needs to be managed. From the evidence of Mr Gunby, it is clear that there is no certainty about the impact of the proposed subdivision and the use of ATUs.
69 On the matter of ATUs, the Tribunal finds that because of the uncertainty associated with nitrogen reduction, it is not possible to accept the applicant's argument that two ATUs are better than one existing traditional system. Nevertheless, if the proposal is approved, ATUs should be required on the basis that an ATU is likely to be better than a traditional system, and that two ATUs are likely to be better than two traditional systems or one traditional system and one ATU. The respondent, in the "without prejudice" draft conditions, requires ATUs, and the applicant has not objected to the condition. Therefore, the Tribunal views the use of ATUs as a minimum requirement and not as a reason to support the application.
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70 In terms of assessing the risk of whether the proposed subdivision will cross a threshold where the proposal becomes unacceptable because of potential increased nutrient input into Wilson Inlet, the Tribunal relies on the DCSP. The DCSP details exemptions for the requirements of sewer connection. The Tribunal does not see a reason to depart from that policy, and the question becomes whether the proposal meets any of the exemption provisions.
71 The Tribunal agrees with the respondent that the only applicable exemption is the exemption described in cl 5.1, and the test is whether there is no potential for the creation of more than four additional lots in the immediate vicinity. The respondent argues that the potential is for the creation of an additional 16 lots in the vicinity, whereas the applicant argues there is only potential for an additional two lots.
72 In Hart & Anor and Western Australian Planning Commission [2007] WASAT 187, the Tribunal found, at [30], that the immediate vicinity does not include land outside the street block.
73 In this instance, the street block is not easy to define because Lunan Road finishes in a cul de sac where it adjoins the two large lots: Lot 152 (5515 square metres) and Lot 153 (1.2527 hectares).
74 If Lot 152 and Lot 153 are excluded, the proposed subdivision complies with the exemption because there is only potential to create two additional lots in the "immediate vicinity" (street block). Lot 78 Inlet Drive and Lot 1 Lunan Drive are a similar size to the subject land, and if both lots were subdivided, there is potential for two additional lots. All other lots in the immediate vicinity are just over 1000 square metres and have no potential for subdivision.
75 Even if Lot 152 and Lot 153 are included as being in the immediate vicinity, it does not necessarily result in those lots having potential for subdivision. The critical words in the exemption cl 5.1 are "potential" and "so that the proposal completes rather than extends an existing pattern of subdivision".
76 Dealing first with completion or extension, there is no doubt that the subdivision of the subject land and Lot 78 Inlet Drive and Lot 1 Lunan Road falls into the category of completing the existing subdivision pattern. In the case of the subject land and Lot 78, both lots resulted from an earlier amalgamation of lots in the subdivision where all lots were a similar size. Lot 152 and Lot 153 are not as easy to classify, because a case may be made that the subdivision of Lot 152 and Lot 153
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- is either completion or extension. Future subdivision of Lot 152 and Lot 153 would be an "extension" on the basis that Lunan Road and services would need to be extended. On the other hand, it could be argued that subdivision of Lot 152 and Lot 153 is a completion because the shapes of the lots easily facilitate the extension of Lunan Road, and may even anticipate the extension of Lunan Road.
77 However, the exemption only applies to small infill. The title of the exemption in cl 5.1 gives context to the terms "completion" and "extension". The possible two lot subdivisions on the subject land, Lot 78 and Lot 1, are all infill subdivision in that they occur within the existing subdivision pattern and therefore complete the pattern. Subdivision of Lot 152 and Lot 153 are not within the existing pattern, and involve an extension to the edge of the existing pattern. This approach is consistent with the Tribunal's decision in Strawbridge & Anor and Western Australian Planning Commission [2006] WASAT 96 where, at [40], the Tribunal found that "subdivision of the subject land follows the existing approved pattern of subdivision on adjoining lots and completes the pocket of 2.0 hectare lots on the southern side of Neaves Road." Strawbridge involved an application to subdivide an existing lot into two lots of 2.0235 hectares and 2.7 hectares. It is also consistent with the Tribunal's decision in Bojanich and Western Australian Planning Commission [2006] WASAT 315 at [52] where the Tribunal found that an application to create 16 lots mostly 2.0 hectares to 2.6 hectares "does not complete a pocket of 2.0 hectare lots, but rather, involves subdivision of 14 new 2.0 [hectare] to 2.6 hectare lots."
78 Therefore, the Tribunal finds that Lot 152 and Lot 153 are not included in the consideration of potential additional lots because the subdivision of either or both of Lot 152 and Lot 153 would not be infill and would not be the completion of an existing pattern of subdivision but rather an extension of an existing pattern.
79 For completeness, even if the Tribunal had accepted that Lot 152 and Lot 153 are in the "immediate vicinity" and that their subdivision would be a completion of the existing subdivision pattern, there is one remaining component to the test: there must be no potential for the lots to be created.
80 This Tribunal found in Landpark Holdings at [26] that the "Commission and the Tribunal on review may approve a subdivision which involves allotments that are smaller than the minimum site area that corresponds to the residential density code that applies to the land for development purposes." However, at [28], the Tribunal went on to say
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- that the Commission and the Tribunal must have due regard to "obvious expectation that the development of a single house" is required to comply with the minimum site area and minimum frontage of the applicable density coding "and that the Commission will not, therefore, generally approve an allotment of lesser size or frontage." In Landpark Holdings, the Tribunal supported the application for a two lot subdivision because of "the particular and somewhat unusual circumstances of the case" that included that the site formerly comprised two allotments of approximately the size of the proposed allotments."
81 In this instance, the Codes require a minimum site area of 5000 square metres and a minimum frontage of 50 metres. Whereas the subject land, as well as Lot 78 Inlet Drive and possibly Lot 1 Lunan Road, all share some characteristics with Landpark Holdings, Lot 152 and Lot 153 involve a different scale and different issues. The subject land and Lot 78 are both lots that were formed from the amalgamation of earlier lots; their subdivision would re-establish the subdivision pattern. In the case of the subject land and Lot 1 Lunan Road, subdivision would enable the completion of the streetscape pattern by removing an inconsistent wide frontage from the streetscape pattern. The subject land and Lot 78 are further from the inlet than Lot 152 and Lot 153.
82 For the reasons above, it is reasonable to argue that in addition to the subject land, Lot 78 Inlet Drive and Lot 1 Lunan Road have the potential for the creation of additional lots, even though the creation of such lots would involve substantial variations to the minimum site area and frontage requirements.
83 However, given the obvious expectation that the development of a single house is required to comply with the minimum site area and minimum frontage of the applied density coding and that the Commission will not, therefore, generally approve an allotment of lesser size or frontage, it is difficult to make a case that Lot 152 and Lot 153 Lunan Road have potential to create additional lots because they have none of the infill characteristics of Lot 78, Lot 77 and Lot 1, and would involve an extension to the subdivision rather than a "tidying up" of a few inconsistencies within an existing subdivision pattern.
84 Therefore, the Tribunal finds that the proposed subdivision meets the exemption in cl 5.1 of the DCSP because the proposal is a small infill subdivision that completes an existing subdivision pattern where the lot size is consistent with the existing pattern of subdivision and where there
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- is no potential for the creation of more than four additional lots in the immediate vicinity.
Whether the proposed subdivision should be granted, having regard to the possible creation of an undesirable precedent of this locality
85 The respondent argued that approval of the proposed subdivision would create a precedent for the re-subdivision of four other previously amalgamated lots in the locality: Lot 1 and Lot 2 Harper Road, Lot 1 Lunan Road and Lot 78 Inlet Drive.
"Application to subdivide these lots would be indistinguishable from the proposed subdivision, as the lots were originally subdivided as part of the same staged subdivision, amalgamated pursuant to the repealed TPS 2, are in close proximity to the subject land and have frontages of 40 metres or greater."
86 The respondent was also concerned that approval would create a precedent for the completion of the original subdivision, thus resulting in an increase of 14 lots.
87 The applicant argued that the proposal had unique characteristics that enabled it to be approved on merit without risk of creating a precedent, noting that Lot 1 Harper Road and Lot 78 both have substantial brick and tile dwellings in the middle of the lots and are unlikely to be subdivided. Furthermore, the applicant argued that their proposal was a positive precedent since not only would the new lot be connected to an ATU but the existing dwelling would also be connected to an ATU.
88 Precedent was considered by the Tribunal in an analysis of authorities including Aspen Pty Ltd v State Planning Commission (Unreported; Appeal No 13 of 1988, 21 October 1988) and Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, in Nicholls and Western Australian Planning Commission (2005) 149 LGERA 117 at [71] - [75]. In that case, the Tribunal adopted the following criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment from Goldin v Minister for Transport Administering the Ports Corporation and Waterways Management Act 1995 (2002) 121 LGERA 101 as consistent with Western Australian authority:
"(1) That the proposed development or subdivision is not in itself unobjectionable.
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- (2) That there is more than a mere chance or possibility that there may be later undistinguishable applications."
89 For precedent to be a relevant factor, both tests must be satisfied. In this instance, for reasons discussed earlier, the proposed subdivision is unobjectionable.
Conclusion
90 The proposal intends to create two lots that are substantially smaller than the minimum site area that corresponds to the residential density code that applies to the land for development purposes. The proposed lot sizes are just over 1000 square metres, whereas the "R2" coding requires a minimum of 5000 square metres.
91 However, the proposal is unusual because it subdivides land that was previously amalgamated back to approximately the size of the original two lots. The proposed subdivision is consistent with the pattern of lots to the north and south of the subject land and will re-establish lot sizes and frontages that are consistent with the existing subdivision pattern.
92 Therefore, it is appropriate to vary from the requirements of TPS 3 and DC 2.2 and approve the proposal.
93 However, the proposal needed to overcome the significant obstacle of the DCSP, which requires mandatory sewerage connection for all subdivision proposals with limited exemptions. The Tribunal finds that the proposal satisfied the exemption described in cl 5.1 of the DCSP, because the proposed subdivision is a small infill subdivision that completes an existing subdivision pattern where the lot size is consistent with the existing pattern of subdivision and where there is no potential for the creation of more than four additional lots in the immediate vicinity.
94 The Tribunal finds that because the proposal is not objectionable, adverse planning precedent is not a relevant factor.
95 The applicant did not object to the draft conditions proposed by the respondent. The Tribunal finds that the conditions are reasonable and the conditions relating to effluent disposal are consistent with the requirements of the DCSP.
Orders
96 The Tribunal makes the following orders:
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- 1. The application for review is allowed.
2. The decision of the respondent to refuse the application to approve the subdivision of Lot 77 Inlet Drive, Denmark into two lots is set aside and a decision is substituted that subdivision approval is granted subject to the following conditions:
(1) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision (Western Power).
(2) Western Power provides only one point of electricity supply per freehold (green title) lot and requires that any existing overhead consumer service is required to be converted to underground (Western Power).
(3) If an existing aerial electricity cable servicing that land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision, satisfactory arrangements will need to be made for the removal and relocation of that cable (Western Power).
(4) Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lot(s) shown on the approved plan of subdivision (Water Corporation).
(5) At the applicant's expense, a site investigation is to be carried out under late winter (September/October) conditions to the satisfaction of the Local Government and the Health Department in order to verify the most suitable location for an on-site effluent disposal system on the proposed lots.
The site investigation is to be undertaken by a qualified consultant and tests performed
- consistently with the procedures laid out under Australian Standard 1547 (2000) or Sch 8 of the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA).
- The qualified consultant is required to prepare a geotechnical report which includes:
• soil profile to a depth of at least 2.0 metres;
• soil permeability;
• water table encountered to a depth of 2.0 metres; and
• site topography and any other features such as rock outcrops and water courses (Local Government).
(6) Establishment of building envelopes that ensure all buildings and effluent disposal systems will be appropriately set back from new lot boundaries, areas of inundation and minimise the removal of vegetation to the specifications of the Shire of Denmark and satisfaction of the Department of Conservation and Environment (Local Government).
(7) Both proposed lots are to be serviced by an ATU for on-site effluent disposal to the specifications of the Local Government and Department of Health. The applicant is to replace the existing septic tank servicing the existing dwelling on the land with an ATU (Local Government).
(8) All existing septic sewer systems on the subject land including all tanks and pipes and associated drainage systems are to be decommissioned, removed, filled with clean sand and compacted (Local Government).
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- (9) The existing on-site effluent disposal system(s) are to be decommissioned in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). A pump out receipt from a licensed liquid waste contractor is to be provided to the Local Government as proof of decommissioning (Local Government).
(10) The applicant is to notify in writing prospective purchasers and successors in title of the lots created that reticulated sewerage is not provided and an ATU for on-site effluent disposal system, to the specifications of the Local Government and the Department of Health, will be required (Local Government).
(11) Construction of a crossover to service the new lot to the specifications of the Local Government (Local Government).
(12) Suitable arrangements being made for the drainage of the land to the specifications of the Local Government (Local Government).
I certify that this and the preceding [96] 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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Attachment 1
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Attachment 2
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Attachment 3
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