SEATTLE BAY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 261
•31 AUGUST 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: SEATTLE BAY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 261
MEMBER: MR J JORDAN (MEMBER)
HEARD: 2 JUNE 2006
DELIVERED : 31 AUGUST 2006
FILE NO/S: DR 75 of 2006
BETWEEN: SEATTLE BAY PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning – Survey strata subdivision – Refusal – R5 coding under Residential Design Codes – Lots proposed half R5 density standard – Structure plan for locality – Lot size pattern in street – Application to subdivide determined and application for review filed before Town Planning and Development Act 1928 revoked – Continued application of s 20(5) of the Town Planning and Development Act 1928 (WA) – Lot size pattern in cul-de-sac – Impact of subdivision – Limited extent of any precedent considerations
Legislation:
Interpretation Act 1984 (WA), s 37
Planning and Development (Consequential and Transitional Provisions) Act 2005, (WA) s 4, s 17, Sch 1
Planning and Development Act 2005 (WA), s 138(2), s 138(3),s 165, s 251(1)
Residential Design Codes of Western Australia 2002(WA), Table 1, cl 3.1.3, cl 3.3.1, Pt 3
Shire of Busselton Town Planning Scheme No 20, cl 6(3), cl 10(3), cl 27, cl 27(1), cl 27(3), cl 61(1)
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)
Town Planning and Development Act 1928 (WA), s 20(5), s 20(5)(1)(a), s 26(1)(a)(i)
Transfer of Land Act 1893 (WA), s 70A
Result:
The application for review be allowed
The survey strata subdivision be granted conditional approval
Category: B
Representation:
Counsel:
Applicant: Mr P McQueen
Respondent: Ms C Ide
Solicitors:
Applicant: Lavan Legal
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)
Goldin v Minister for Transport (2002) 121 LGERA 101
Ingram v Western Australian Planning Commission [2003] WASCA 77
Nicholls and Western Australian Planning Commission [2005] WASAT 40
WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd and Western Australian Planning Commission [2006] WASAT 200
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal’s decision
Seattle Bay Pty Ltd applied to subdivide Lot 61 Ella Gladstone Drive, Eagle Bay into two vacant survey strata lots, one of 950 square metres and one of 1050 square metres.
The Western Australian Planning Commission refused the application because the lots would be half the size required for the R5 coding of the land.
The Tribunal found that the proposed lots would be consistent in size with most of the other lots in Ella Gladstone Drive, that an approval would not have a significant impact on the character of the street and that there would be limited precedent for other subdivision in this cul-de-sac. The Tribunal granted the subdivision conditional approval.
Introduction
Seattle Bay Pty Ltd (applicant), brought proceedings pursuant to s 26(1)(a)(i) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act) s 251(1)), for review of the decision of the Western Australian Planning Commission (respondent) to refuse to approve a plan of subdivision into survey strata lots of Lot 61 Ella Gladstone Drive, Eagle Bay (subject land).
Nearby subdivision and joint hearing
An application for a similar form of subdivision by the owners of nearby Lot 63 Ella Gladstone Drive was refused by the respondent at the same meeting in February 2006 that the application for subdivision of the subject land was refused. That refusal is also the subject of an application to the Tribunal for review (DR 72 of 2006). At directions on 5 April 2006, the Tribunal ordered:
"By consent of the parties and in accordance with s 51(1)(b) of the State Administrative Tribunal Act 2004, application DR 72 of 2006 and application DR 75 of 2006 are to remain separate proceedings, but are to be heard together".
Consistent with that order, these two proceedings were heard together by the Tribunal on 2 June 2006. Both matters were concerned with essentially the same planning issues. Lot 63 varied from the subject land in that it had vegetation at the northern end and an existing house at the southern end. As there were submissions common to both proceedings, some of the passages and findings in the judgment on DR 72 of 2006 have been repeated hereunder in this judgment.
The locality and the proposed subdivision
Eagle Bay is a small coastal node facing east toward Geographe Bay north west of Dunsborough in the Shire of Busselton (Shire). Within a street block bordered by Eagle Bay Road to the west, Eagle Bay‑Meelup Road to the north and Gypsy Street to the east and south, is Ella Gladstone Drive, a cul‑de‑sac which runs west from Gypsy Street about 225 metres and then due south for 75 metres to the cul‑de‑sac head. The subject land is at the eastern edge of the head of the cul-de-sac, is vacant of development and is mostly cleared of vegetation.
Of the 28 lots in Ella Gladstone Drive, 23 average between 800 square metres and 900 square metres. At the head of the cul‑de‑sac Lot 60, the subject land and Lot 63 are 2000 square metres in area. Lot 62 has been subdivided into two survey strata lots of 1000 square metres each. To note is that Lot 60 is a battleaxe lot with only a 5 metres frontage to Ella Gladstone Drive. From the roadway only Lot 61 and Lot 62 of the larger lots are apparent as Lot 60 is behind the subject land and at a slightly lower contour.
The applicant lodged the application to subdivide the subject land into two survey strata lots with the respondent in November 2005 (proposal). The proposal would result in one lot of 950 square metres and one of 1050 square metres, each with a 10 metre frontage to the cul-de-sac head of Ella Gladstone Drive. The respondent refused the application on 21 February 2006 and this application to the Tribunal for review of the respondent's decision was filed on 17 March 2006.
The refusal
The respondent refused the application to subdivide the subject land for the following reasons:
"1. The subdivision does not comply with Table 1 of the Residential Design Codes (2002), in that the proposed lots do not comply with the minimum lot size and frontage requirements applicable to the 'R5' density code.
2. The subdivision does not comply with Clause 6 (3) of the Shire of Busselton Town Planning Scheme No. 20, by way that it does not comply with the Residential Design Codes (2002).
3. The subdivision does not comply with the 'Eagle Bay Precinct Structure Plan' as endorsed by the WAPC, which identifies the subject lot as having an 'R5' density code.
4. The subdivision does not comply with Clause 61 (1) of the Shire of Busselton Town Planning Scheme No. 20, by way that it does not comply with the 'Eagle Bay Precinct Structure Plan'.
5. Approval to the subdivision would create an undesirable precedent for further subdivision of surrounding lots with an R5 density code. The cumulative effect would be detrimental to the existing character of the area."
Planning framework
When this application for review was filed, s 20(5) of the TPD Act provided that the discretion of the respondent is relevantly not fettered by the provisions of a town planning scheme. Although the TPD Act was repealed by s 4 and Sch 1 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) (PD(CTP) Act) before the hearing and the publication of these reasons, the effect of s 17 of the PD(CTP) Act and s 37 of the Interpretation Act 1984 (WA) is that s 20(5) of the TPD Act continues to apply in relation to the determination of the review: WR Carpenter Properties Pty Ltd and Griffin Coal Pty Ltd and Western Australian Planning Commission [2006] WASAT 200 [16].
Section 20(5) of the TPD Act states:
"(5) In giving its approval under subsection (1)(a), 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."
It is common ground the Shire of Busselton's Town Planning Scheme No 20 (TPS 20) and the "Meelup to Bunker Bay Structure Plan - Eagle Bay Precinct" (1996) (Eagle Bay structure plan) are of principal significance to the proposal and must be taken into account by the Tribunal in the determination of the review. Not withstanding s 20(5) of the TPD Act, the principles of orderly and proper planning require that the proposal be considered in the light of the planning framework in place.
The subject land is zoned Residential in TPS 20. Clause 6(3) of TPS 20 provides:
"Except as otherwise provided for by the Scheme, the use or development of for any of the residential purposes dealt with by the Residential [Design] Codes shall conform to the provisions of those Codes."
The subject land has a density coding of R5. Table 1 of the Residential Design Codes (Codes) specifies that for R5 the minimum site area for a single house is 2000 square metres and minimum frontage is 30 metres. Clause 3.1.3 of the Codes, under Performance Criteria, provides that the respondent or the local government may provide a minimum site area less than that specified in Table 1 provided the proposed variation meets certain prescribed criteria, including that the proposed variation be no more than five percent.
Clause 61(1) of TPS 20 relating to low density residential development including land having an R5 coding states:
"Subdivision and development shall be generally in accordance with a Development Guide Plan, Subdivision Guide Plan or other plan approved and adopted by Council and the WA Planning Commission to guide the subdivision and development of the land where such plan exists".
The Eagle Bay structure plan codes the three larger lots as R5, including the subject land and the two strata lots on Lot 61 at the head of Ella Gladstone Drive. The 23 lots with an average area of about 800 square metres are coded R12.5. To note is that in TPS 20 all lots in Ella Gladstone Drive are coded R5.
Discussion
Clause 6(3) of TPS 20 – conformity with the provisions of the codes
Mr Matthew Cuthbert, a town planner who appeared for the respondent, said the proposal was in conflict with cl 6(3) of TPS 20 because the new lots would not satisfy the minimum lot area or frontage requirements for R5 under the Codes. He also pointed out that the lot size variation would be greater than the 5% variation allowed under the performance criteria of cl 3.3.1 of the Codes.
Mr Cuthbert said that if the subdivision were allowed, the density of development would double. The lots at the southern end of Ella Gladstone Drive were of higher elevation and therefore more visually prominent than those at the northern end and the R5 density should be retained to maintain the visual amenity. One of the photographs attached to Mr Cuthbert's evidence showed a house in Gypsy Street to the south and vegetation to the ridge beyond and he said this illustrated the intrusive impact that would result if the departure from the Codes were to be allowed.
The applicant asserted that there was no requirement under TPS 20 that subdivision conform to the provisions of the Codes. Clause 6(3) referred only to the 'development' and 'use' of the land, not subdivision. The ultimate form of development was unknown and so no meaningful consideration could be afforded as to whether development would be compatible with the maintenance of the existing character of the locality. In the submission of the applicant, at most TPS 20 required a general compliance with the R Codes and this was not an impediment to subdivision.
The Tribunal agrees with the respondent that subdivision can not be simply divorced from the planning consequences that would directly flow from that subdivision. The Codes at Part 3, 'Design Elements', 3.1 'Element 1 ‑ Housing Density' 'Undersized Lots' provide that the Codes shall not restrict development of lots smaller than the minimum prescribed, created by prior subdivision of an area. The Tribunal noted, however, that the contour plans put into evidence showed the subject land was at least in part on the same contours as two of the 800 square metre lots immediately to the north west. This helped support he applicant's submission that it would be houses on the higher land to the south, closer to the ridgeline, that would have an impact, not houses on the subject land.
The applicant submitted that variance from the Codes was appropriate as the broad objectives of TPS 20 would be met. The Tribunal acknowledges that variation of the Codes can be contemplated. The variation being sought, however, is significantly greater than the 5% contemplated by the Codes. The Tribunal considers that if there were a lot size pattern in the cul-de-sac more consistent with the R5 coding, the variation to the Codes of about 50% contemplated by the proposal would be fatal to the application. There are, however, other issues raised by the applicant that also must be weighed and it is these, discussed below, that assist in determining whether an acceptable planning outcome can be achieved by allowing subdivision into the lot sizes proposed.
Clause 61(1) of TPS 20 - compliance with a guide plan
Mr Cuthbert submitted that the Eagle Bay structure plan endorsed in 1996 was the type of plan contemplated by cl 61(1) with which subdivision shall be "generally" in compliance. The subject land was coded R5 in the Eagle Bay structure plan, as in TPS 20. He noted that the 23 lots of about 800 square metres to the north of the subject land were coded R12.5 in the Eagle Bay structure plan, but have been coded R5 in TPS 20. This, he argued, was inconsequential because in both the Eagle Bay structure plan and TPS 20 the practical effect of the coding was that subdivision of any lots was not supported.
The applicant pointed out that TPS 20 does not define what was intended by the word "generally' in cl 61(1) and so, pursuant to cl 10(3) of TPS 20, must have its normal and common meaning. It was asserted that the proposal was 'generally', in the ordinary sense of the word, in accordance with the Eagle Bay structure plan because the lots would be consistent in size with 25 of 28 lots in Ella Gladstone Drive, including the adjoining strata lots. There was therefore no conflict with cl 61(1) of TPS 20.
The Tribunal notes that normally, a structure plan provides guidance as to the ultimate planning form by annotations, colours, notes and key, not necessarily by the underlying cadastral information, as suggested by the applicant. The planning rationale for having the two different codings in the cul-de-sac was not readily apparent, but they were nonetheless adopted for the plan.
It is considered relevant in this context that, notwithstanding the Eagle Bay structure plan, the Shire approved the development of two grouped dwellings on Lot 62 at the head of the cul-de-sac and the respondent subsequently approved the two survey strata lots of 1000 square metres now in place. This has resulted in 25 of 28 lots being of the 800 square metres to 1000 square metres in area. It is acknowledged that the Shire is now of a different view in respect of the subject land and the proposal under consideration for nearby Lot 61, but the resultant lot size pattern is such that the planning objectives of the Eagle Bay structure plan could now only be accomplished if amalgamation of most of the lots in the cul-de-sac were to occur. It is correct that the proposal for the subject land would not be in accordance with the Eagle bay structure plan, but, while it is speculation, the Tribunal is of the view that the potential for achieving the planning objectives of the Eagle Bay structure plan for Ella Gladstone Drive are remote and any development of the two lots proposed would be consistent with the firmly established development pattern in this cul-de-sac.
Policy DC 2.2 – Residential subdivision
Mr Cuthbert also referred to the respondent's Policy DC 2.2 "Residential Subdivision" (DC 2.2) which states that "generally" the minimum lot sizes of the Codes will form the basis for the subdivision of residential land. The use of the word "generally", he said, acknowledged that the respondent was prepared to consider variations in lot size, but that DC 2.2 reflected the Codes in this regard and a variation of 5% in lot size might be considered. In this case the variation was close to 50%, residential density would be doubled and so, in the opinion of Mr Cuthbert, the proposal should not be supported because it was in conflict with the provisions of DC 2.2.
The applicant submitted that DC 2.2 was a policy and policies should not be applied inflexibly so that the circumstances of a case which suggest that a variance from a policy may be appropriate on a particular occasion are not ignored: Ingram v Western Australian Planning Commission [2003] WASCA 77 at [14].
The Tribunal would make the comment that, in the normal course of events, flexibility would not extend to the relaxation of a standard by 50%. The applicant must look to other factors to support its position.
Merit of the proposal
The strongest argument the applicant has provided in support of the proposal is that the subdivision would simply be the 'rounding off' of the lot size pattern of Ella Gladstone Drive. The evidence by Mr Moran was that the proposed subdivision would have little impact on the character and amenity of Ella Gladstone Drive because 25 of 28 lots in the street are similar in size to the lots proposed. The subject land adjoins a 1000 square metre lot and is only separated from Lot 15 of 880 square metres by the 5 metre wide access leg to Lot 60.
Mr Moran also referred to the application before the Tribunal to similarly subdivide Lot 63, which, if approved, would effectively complete the subdivision pattern of Ella Gladstone Drive. Lot 60, the remaining lot, it is noted, is a battleaxe lot with a frontage of just 5 metres to the cul-de-sac and which is behind and lower than the subject land. Lot 60 is arguably a lot that does not contribute to the immediate streetscape character of the cul-de-sac.
Mr Cuthbert relied on the strict application of the provisions of TPS 20 and considered what impact there might be if there were similar subdivisions beyond Ella Gladstone Drive. Mr Cuthbert also made the observation that all the smaller lots in Ella Gladstone Drive, including a grouped dwelling approval for Lot 62, were the result of planning controls that predated TPS 20 and so should not be used as a precedent for the subdivision of the subject land. He argued that the density coding for Eagle Bay was the result of proper planning processes and should not be revised through incremental subdivision proposals. Eagle Bay has a particular character resulting from factors including the coastal location, absence of most services, including reticulated water, and lot size. The proper basis for reviewing the density coding would be through a comprehensive review of the planning controls in place in TPS 20. This process, he said, would properly include an opportunity for input on any change by the residents and land owners of Eagle Bay. He pointed out that the Shire had recommended refusal because of the conflict of the proposal with the policies and planning controls in place.
Precedent
Mr Cuthbert submitted that an approval of the proposed subdivision would set a precedent for the subdivision of the considerable number of 2000 square metre lots coded R5 in Eagle Bay. This would be undesirable because the cumulative effect would mean the density standard set in TPS 20 would become irrelevant and the low density character planned for the area would be eroded. Mr Cuthbert said the planning controls of TPS 20 should be maintained to ensure a degree of certainty for landowners and the general community regarding the density and type of residential environment likely to result in the locality.
The applicant's submission was that the proposal would not set a precedent as there was a unique set of circumstances applicable to only three lots in Ella Gladstone Drive, two of which are presently before the Tribunal.
The applicant submitted that, although it is accepted that a particular subdivision can result in an undesirable precedent and that it is a valid consideration, 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.
Precedent was considered by the Tribunal, in an analysis of authorities, including Aspen Pty Ltd v State Planning Commission, in Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [71 - 75]. In that analysis, Senior Member Parry respectfully adopted from Goldin v Minister for Transport(2002) 121 LGERA 101 as consistent with Western Australian authority, criteria as to the circumstances in which precedent is a relevant consideration in a planning assessment, namely:
"(1) That the proposed development or subdivision is not in itself unobjectionable; and
(2) That there is more than a mere chance or possibility that there may be later undistinguishable applications."
In considering this matter, this Tribunal has respectfully adopted the same approach to precedent. The Tribunal is of the view that the lots created would not in themselves be objectionable in respect of the impact on the adjoining lots and Ella Gladstone Drive, for the reasons set out in the discussion above.
There is certainly a chance there would be later applications for subdivision in Eagle Bay, given that it is a desirable coastal location in which to have a house. The Tribunal is of the view, however, that this subdivision proposal, and the subdivision of nearby Lot 63 in Ella Gladstone Drive (DR 72 of 2006), could be distinguished from other subdivision applications that might be made. This is because the lots are at the head of cul-de-sac in which 25 of the 28 lots are already of a size equal to or less than the lots proposed. The respondent has not identified, and the Tribunal has not been able to identify, similar circumstances on the cadastral map for Eagle Bay. The Tribunal does not therefore place great weight on the undesirable and broad reaching precedent argument advanced by the respondent in this particular instance.
Conclusion
It is common ground with the parties that the proposal is in conflict with the lot size provisions of TPS 20, particularly as the resultant density would be 50% greater than that that would normally result under a R5 coding. The Tribunal, however, in weighing all aspects of the proposal, has concluded that any development of the new lots created by the subdivision would not have a significant impact on the character of the immediate locality and the neighbours. For the reasons indicated, the Tribunal is also of the view that an approval of the proposed subdivision could not be interpreted as a general precedent for the breakdown of the planning controls for the wider area of Eagle Bay. Any precedent for such a reduction in lot area would be limited to very few lots and confined to the Ella Gladstone Drive cul-de-sac.
Final comment
In the course of the hearing, both parties referred to s 138(2) of the PD Act, which provides that the respondent is not to give a subdivision approval that conflicts with the provisions of a local planning scheme. They both also referred to s 138(3) of the PD Act which provides that an approval may be given that conflicts with the provisions of the local planning scheme if some of particular circumstances listed are applicable to the proposal.
The parties made submissions on whether or not the listed circumstances where applicable to the proposal. It is appropriate in this context to repeat what was said under 'planning framework' above. The TPD Act was repealed by s 4 and Sch 1 of the PD(CTP) Act, which became valid on 9 April 2006. This was before the hearing and the publication of these reasons, but after the application was made to and determined by the respondent and after the application for review was filed. When these respective applications were made s 20(5) of the TPD Act was still in force, and it provided that the discretion of the respondent is relevantly not fettered by the provisions of a town planning scheme. The effect of s 17 of the PD(CTP) Act and s 37 of the Interpretation Act 1984 (WA) is that s 20(5) of the TPD Act continues to apply in relation to the determination of this review.
It is not therefore necessary for the Tribunal to make an assessment of the proposal in the light of the particular circumstances listed in s 138(3) that provide an exception to the requirement that a subdivision approval cannot be in conflict with a local planning scheme. The Tribunal would, however, comment that under s 138(3) it is only certain circumstances that would provide the discretion to allow subdivision. It is arguable that the proposal would not fit within any circumstances listed, but it was not necessary for this to be explored by the Tribunal.
The Tribunal was, however, satisfied from its analysis of the proposal as set out above, that, in the circumstances relevant in this instance, there is a case for the proposed subdivision being allowed to proceed.
Orders
1.The application for review be allowed.
2.Approval of the subdivision of Lot 61 Ella Gladstone Drive into two survey strata lots of 1050 square metres and 950 square metres, respectively, as set out in the plan date stamped 8 November 2005 by the Department for Planning and Infrastructure, be granted subject to the following conditions:
1. Arrangements being made with the local government for a financial contribution of $971 per lot to be made for the upgrading of Ella Gladstone Drive. (Local Government)
2. The land being graded and stabilised. (Local Government)
3. The land being filled and/or drained at the subdivider's cost to the satisfaction of the Western Australian Planning Commission and any easements and/or reserves necessary for the implementation thereof, being granted free of cost. (Local Government)
4. Uniform fencing between the proposed lots being constructed. (Local Government)
5. The applicant providing a geotechnical report certifying that any filling or backfilling has been adequately compacted. (Local Government)
6. A Notification, pursuant to s 165 of the Planning and Development Act 2005 (WA) is to be placed on the Certificates of Title of the proposed lot(s) advising of the existence of a hazard or other factor. Notice of this notification to be included on the Deposited Plan. (Local Government). The notification to state as follows:
Reticulated sewerage connection is not available to the lots, and a suitable on‑site effluent disposal system complying with the specifications of the Shire of Busselton designed for long term use will be required to service any new development on each lot.
7. Notification in the form of a s 70A notification, pursuant to the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the Certificate(s) of Title of the proposed lot(s) advising that no reticulated water supply can be provided to the land by a licensed water service supplier and as a consequence owners will be required to make their own arrangements to provide an adequate water supply of portable water of not less than 135 000 litres. (Local Government).
I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
3
3
8