Smith and Western Australian Planning Commission
[2008] WASAT 129
•5 JUNE 2008
SMITH and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 129
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 129 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:40/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 5/06/08 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | The application for review was dismissed and the decision of the respondent confirmed | ||
| B | |||
| PDF Version |
| Parties: | LIAM GEORGE SMITH WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Application for subdivision Conditions of subdivisional approval Provision of a sewerage service Sewer will provide a more reliable and environmentally acceptable means of wastewater disposal long-term Amount of remnant vegetation requiring clearing Cost of providing reticulated sewerage Availability of sewer Proposed lots can reasonably be connected to the existing sewer line Mandatory provisions of the sewerage policy Exemption provisions of the sewerage policy |
Legislation: | Health Act 1911 (WA), s 72, s 81 Planning and Development Act 2005 (WA), s 251(2) Shire of Augusta-Margaret River Town Planning Scheme No 17, cl 5.6.1 Town Planning and Development (Subdivisions) Regulations 2000 (WA), cl 5 |
Case References: | Newbury District Council v Secretary of State for the Environment [1981] AC 578 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent is confirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SMITH and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 129 MEMBER : MR L GRAHAM (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 5 JUNE 2008 FILE NO/S : DR 40 of 2008 BETWEEN : LIAM GEORGE SMITH
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Application for subdivision - Conditions of subdivisional approval - Provision of a sewerage service - Sewer will provide a more reliable and environmentally acceptable means of wastewater disposal long-term - Amount of remnant vegetation requiring clearing - Cost of providing reticulated sewerage - Availability of sewer - Proposed lots can reasonably be connected to the existing sewer line - Mandatory provisions of the sewerage policy - Exemption provisions of the sewerage policy
(Page 2)
Legislation:
Health Act 1911 (WA), s 72, s 81
Planning and Development Act 2005 (WA), s 251(2)
Shire of Augusta-Margaret River Town Planning Scheme No 17, cl 5.6.1
Town Planning and Development (Subdivisions) Regulations 2000 (WA), cl 5
Result:
The application for review was dismissed and the decision of the respondent confirmed
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Newbury District Council v Secretary of State for the Environment [1981] AC 578
(Page 3)
Summary of Tribunal's decision
1 The application for review was lodged against a decision of the Western Australian Planning Commission to impose a Condition 2 on subdivision requiring the provision of a sewerage service to two proposed "special residential" lots at No 16 Wise Road, Margaret River.
2 The applicant sought a modified Condition 2 to provide reticulated sewerage to the rear battleaxe lot only, in close proximity to an existing sewer line.
3 The State Administrative Tribunal examined the respective positions of the parties, the background to the proposal, the relevant legislative and policy provisions and the particular views of the Department of Health. Also, the matter of nearby subdivision approvals and the prospect of environmental damage to existing remnant vegetation if reticulated sewerage was provided to the front lot was also examined.
4 Attention was paid to the State Government's Draft Country Sewerage Policy; particularly the mandatory sewerage provisions and those circumstances where exceptions could apply for large lots.
5 The Tribunal determined that the mandatory sewerage provisions applied in this case, and that the purpose of the policy would be defeated if both of the proposed new lots were not connected to the nearby sewer.
6 The Tribunal also determined that even putting the provisions of the Draft Country Sewerage Policy to one side, the respondent's proposed Condition 2 was reasonable because of the availability of the nearby sewer, and that a connection to it would provide a more reliable and environmentally acceptable means of wastewater disposal long term. It also determined that, although some remnant vegetation would be affected by a new sewer line, these effects could be minimised over time by way of a replanting programme.
7 The application for review was dismissed and the decision of the respondent confirmed.
Introduction
8 The application for review, dated 30 January 2008, was lodged by Mr Liam Smith (applicant) against a decision of the Western Australian Planning Commission (respondent or WAPC) on 2 January 2008 to approve an application
(Page 4)
- for subdivision at No 16 Wise Road, Margaret River (subject land) subject to five conditions. It is Condition 2 relating to the provision of a sewerage service to both of the proposed lots that is objected to by the applicant.
9 The application for review was made under the provisions of s 251(2) of the Planning and Development Act 2005 (WA) (PD Act).
10 The wording of the WAPC Condition 2 states:
"Suitable arrangements being made with the Water Corporation so that provision of a sewerage service will be available to the lot/s shown on the approved plan of subdivision." (Water Corporation)."
11 The decision sought by the applicant from the Tribunal is that a sewerage service be provided to the proposed rear lot only (proposed Lot 701) adjacent to an existing sewer line, and not to the proposed front lot (proposed Lot 700).
12 The proposed rewording of Condition 2, as advanced by the applicant, is:
"Suitable arrangements being made with the Water Corporation so that provision of a sewerage service will be available to proposed lot 701 only as shown on the approved plan of subdivision."
Subject land
13 The subject land can be described as No 16 (Lot 31) Wise Road, Margaret River, on Certificate of Title Volume 1551, Folio 182 (Plan No 12963). It has an area of 5385 square metres with an eastern frontage to Wise Road of some 38.96 metres, a rear western boundary of 39 metres and side boundaries of 133.09 metres (north) and 138.03 metres (south).
14 The subject land, which is located some two kilometres south-west of the Margaret River townsite, is oriented east-west and has a gradual downward slope to the rear of the lot of approximately 1.1 metres.
15 There is an existing single storey brick residence located towards the front of the existing lot and a metal shed some 5 metres from the rear boundary. There are sporadic stands of trees, with the predominant areas of vegetation
(Page 5)
- being immediately to the rear of the existing home and along the rear boundary; principally in the north-west corner.
16 Of importance in this matter is the location of an existing sewer line positioned along the rear boundary with a north-south orientation.
Legislative and policy framework
17 The subject land is zoned "special residential" under the Shire of Augusta-Margaret River Town Planning Scheme No 17 (Scheme). The Scheme was gazetted on 9 August 1991.
18 Of relevance in this matter are:
(a) Town Planning and Development (Subdivisions) Regulations 2000 (WA) (TPDR);
(b) Western Australian Planning Commission Development Control Policy No 1.1 (Subdivision of Land - general principles) (DC 1.1);
(c) Western Australian Planning Commission Development Control Policy No 2.2(Residential Subdivision) (DC 2.2);
(d) Western Australian Planning Commission Development Control Policy No 2.5(Special Residential Zones) (DC 2.5);
(e) Department of Health Draft Country Sewerage Policy (DCSP);
(f) Water Corporation Country Sewer Policy (WCCSP); and
(g) Shire of Augusta-Margaret River PE 26 - Sewerage Policy (PE 26).
Respondent's position
19 The position of the respondent is outlined in a Statement of Issues, Facts and Contentions dated 5 March 2008. The respondent contends:
(a) The connection of both proposed lots to reticulated sewerage is a mandatory requirement under the Western Australian Planning Commission policy framework, the DCSP and the WCCSP.
(Page 6)
- (b) Both of the proposed lots can reasonably be connected to the existing sewer line positioned along the rear boundary of the subject land.
(c) The estimated cost of providing reticulated sewerage to both of the proposed lots is reasonable.
(d) The applicant has not provided sufficient information to indicate why the mandatory provisions of the DCSP and WCCSP should not apply, nor how the stated objectives of the policies will not be prejudiced as a result of the mandatory provisions not being applied.
(e) The Department of Environment and Conservation has advised that whilst retention of vegetation is a key objective, the vegetation on the subject land does not have any formal recognition requiring its conservation under relevant legislation.
(f) The amount of remnant vegetation requiring clearing to facilitate infrastructure works under Condition 2 is minor.
(g) Where nearby subdivision applications have been made, and reticulated sewerage is available, a condition requiring connection to the system has been imposed.
(h) A nearby subdivision application at No 9 (Lot 22) Wise Road, Margaret River was approved without a condition requiring connection to a reticulated sewerage system because such a system was not available.
Applicant's position
20 The position of the applicant is outlined in a Statement of Issues, Facts and Contentions dated 18 March 2008. The applicant contends:
(a) Earlier advice from the Water Corporation indicated that the subject land was not served by the sewer.
(b) Just because a lot is adjacent to a sewer does not mean that it is served by it. The existing residence on the subject land is too far from the sewer to consider it available.
(Page 7)
- (c) Although the Department of Health has advised that under the Health Act 1911 (WA) (Health Act) a local government can refuse unsewered developments when sewer is available or available within 91 metres, and sewage is capable of being drained, the existing residence is over 110 metres from the sewer.
(d) The subject land is not defined as a "Public Drinking Water Source" and, with its loam soils, is excellent for on-site effluent disposal. Also, nutrients are likely to be absorbed by the existing trees on the property.
(e) The estimated cost of providing reticulated sewerage ($50,000 plus) is unreasonable for a single income family, and will probably do more harm than good.
(f) The respondent has not provided sufficient information as to why the discretionary provisions of relevant policies should not be applied to allow subdivision to proceed.
(g) The remnant vegetation, which would be cleared to facilitate infrastructure works, is part of a wildlife corridor for kangaroos, native birds, frogs and other fauna. It also acts as a privacy screen.
(h) The nearby examples quoted by the respondent, where reticulated sewerage was imposed as a condition of subdivision, are irrelevant as they were either already connected to deep sewerage or there was an existing residence close to the main sewer (within 10 metres), and the mandatory provisions of the DCSP should apply.
(i) The situation relating to No 9 (Lot 22) Wise Road, Margaret River where subdivision was approved without a condition requiring reticulated sewerage should be used as a precedent for the current application and approved under s 5 of the DCSP and WCCSP.
(j) The Department of Health is being driven, not just by policy, but by a fear that by allowing the discretionary options available under s 5 of the WCCSP, a precedent will be set for other lots.
(Page 8)
- (k) The Department of Health has not supplied any evidence that an approval would affect health in the area. If the subject land and a few surrounding lots were allowed to subdivide with the minor changes suggested for Condition 2, not one new on-site effluent plant would be created. The same conditions that have existed for the last 20 years on these lots would continue.
(l) The owners of the subject land and neighbouring lots deserve special consideration, as the Water Corporation has maintained until recently that the sewer was not available. This has led to extra expense to the owners, as they have had to maintain and improve on-site effluent systems which, in some cases, would not have been necessary as the sewer was available all the time.
Planning issues
21 The principal planning issues are:
1. Is Condition 2 (provision of a sewerage service) as imposed by the respondent a reasonable requirement in the circumstances of this case?
2. If Condition 2 was not imposed, would that decision be likely to generate applications for unsewered subdivision from nearby landowners?
Assessment of the proposal
Background
22 The following background is relevant:
(a) The subject land was purchased in 2004 by the applicant in joint ownership with a second party.
(b) The intention of the applicant is to live in the existing residence and, following subdivision, to eventually build a home on the rear lot (proposed Lot 701) and to move into the new residence with his family.
(c) The application to subdivide the subject land into two lots was lodged with the WAPC on 29 October 2007. The front lot (Lot 700) was proposed at 2020 square metres and the rear
- battleaxe lot (Lot 701) proposed at 3265 square metres.
- (d) On 2 November 2007, the WAPC referred the subdivision to other agencies for comment. The responses were broadly as follows:
(i) Shire of Augusta-Margaret River (Shire) - subdivision supported.
(ii) Department of Environment and Conservation - no objection to proposal.
(iii) Fire and Emergency Services Authority of Western Australia - request for a specific fire hydrant condition to be imposed on an approval.
(iv) Western Power - request for a specific underground electricity supply service condition to be imposed on an approval.
(v) Water Corporation - request for a specific water supply service condition to be imposed on an approval. Also advised that, as the proposed lots were greater than 2000 square metres in area, a sewerage condition had not been requested.
(vi) Department of Health - no objection to the proposed subdivision, subject to a sewer condition being imposed in compliance with the Country Sewerage Policy.
(e) On 2 January 2008, the WAPC issued an approval for the creation of two lots, subject to five conditions including a Condition 2 requiring the provision of a sewerage service.
(f) On 31 January 2008, an application for review of Condition 2 of the WAPC approval was signed by the applicant. This was received by the Tribunal on 1 February 2008.
(Page 10)
Legislative and policy provisions
Shire of Augusta-Margaret River Town Planning Scheme No 17
23 Under cl 5.6.1 it states:
"Development in a special residential zone shall comply with the requirements of the following in addition to meeting the objectives of the zone outlined in Clause 3.2.2:
…
(i) No lot shall be created with an area less than 2000 square metres, a frontage less than 20 metres or have greater than one fifth of the lot built upon."
Town Planning and Development (Subdivisions) Regulations 2000
25 Under cl 5 of the TPDR it states:
"When considering a subdivision application the Commission is to have regard to all relevant matters including -
…
(b) the provision of services to each lot;
…"
26 It is clear to the Tribunal that the respondent has met the intent of cl 5 of the TPDR, but that it is the comprehensive nature of those intentions to provide a sewerage service that is under challenge from the applicant.
Western Australian Planning Commission Development Control Policy No 1.1 (Subdivision of Land - General Principles)
27 The policy objectives under cl 2 include:
"• To ensure that all lots created have regard to the relevant local government town planning scheme.
…
(Page 11)
- • To secure public utility services to each new lot appropriate for intended use of the lot.
…"
28 Under cl 3.6 (Public utility services) the policy advises:
"The WAPC will ensure that each new lot is provided with a standard of public utility services, or that provided by a licensed private service provider, appropriate for its intended use. The level of such services will be determined by the WAPC in the light of the intended use, the size of the lot, soil conditions, the provisions of the town planning scheme and the Government Sewerage Policy - Perth Metropolitan Region and the Country Sewerage Policy, together with the provisions of any other published policy that may be relevant."
29 In this case, the respondent has approved the subdivision having regard to the lot size and frontage provisions of the Scheme but has required those public utility services that it considers appropriate, including the provision of a sewerage service to both of the proposed lots. In taking this decision, it has had regard to the DCSP.
Western Australian Planning Commission Development Control Policy No 2.2 (Residential Subdivision)
30 The various policy measures under cl 3 (subclause 3.3.4) include the connection of lots to sewerage:
"Similarly, 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 exceptions."
31 Under both the WCCSP and the DCSP, the Margaret River locality is listed as having an established sewerage scheme under the operation of the Water Corporation. There are mandatory provisions requiring reticulated sewerage in both policies, as well as discretionary provisions to allow exceptions in certain circumstances.
(Page 12)
Western Australian Planning Commission Development Control Policy No 2.5 (Special Residential Zones)
32 Under cl 3.2 (Design and Servicing Requirements) the policy advises:
"3.2.1 Lots in Special Residential zones should have a range of sizes between 2,000 square metres and one hectare, related to the nature and purpose of the particular zone. The lower lot size generally equates to the lower density range provided for in residential subdivisions, while the larger lot size equates to the minimum acceptable to the Commission in Special Rural zones where reticulated water is provided. The relevant Residential Planning Codes are those up to R5.
…
3.2.3 Design and servicing considerations which should be applied to Special Residential zones are as follows:
a) Because they are essentially residential, the Commission considers that Special Residential zones should be provided with the type and standard of services typical of normal Residential zones. In particular, reticulated water will be required as a condition of subdivision approval. Provided that the land is suitable for on-site effluent disposal, connection to a reticulated sewerage system may not be required.
…"
Draft Country Sewerage Policy
34 The foreword to the policy advises:
"Under the Policy reticulated sewerage is required for all subdivision or development, except where certain discretionary provisions may apply … While there have been improvements in the technology
(Page 13)
- associated with on-site wastewater treatment, reticulated sewerage remains the most reliable, efficiently managed and environmentally acceptable means of wastewater disposal.
…
The Department of Health is the Government agency with primary responsibility for administering the Policy, as the principal agency responsible for supervising and regulating on-site wastewater systems.
The Policy's requirements that all new subdivisions and developments shall be provided with reticulated sewerage, except where the discretionary provisions of this Policy allow otherwise, are endorsed."
35 Under cl 4 the mandatory provisions advise:
"The Policy requires the provision of reticulated sewerage to the subdivision or density development (except for those exemptions permitted under the discretionary provisions of Section 5), and includes the following:
…
4.2 subdivision or density developments in towns listed in Schedule 1 and which the statutory authority, after considering the advice of consultative authorities, determines can reasonably be connected to sewer;
…"
36 Under cl 5 the discretionary provisions advise:
"The only exceptions to the requirement[s] for [the] provision of reticulated sewerage are set out below:
…
5.2 Large Lots
Proposals for large lot subdivision or density development can be considered if they do not involve the creation of lots less than 2000 [square metres], or density development at a density
- greater than R5, provided the statutory authority, after considering the advice of consultative authorities, is satisfied that there is no opportunity within the area covered by the proposal for further subdivision without sewerage."
37 Under cl 7 the policy implementation provisions advise:
"...
7.6 The determination of whether a subdivision or density development can reasonably be connected to sewer, as referred to in Section 4.2, will be considered having regard to the type and scale of the proposal, and the cost and alternative options available, subject to the overall objectives of the Policy.
..."
Country Sewer Policy
38 The discretionary provisions of the WCCSP, which provide for exceptions to the provision of reticulated sewerage, are almost identical with respect to large lots as outlined in the DCSP at [36] above.
Shire of Augusta-Margaret River PE 26 - Sewerage Policy
39 The discretionary provisions of PE 26, which provide for exceptions to the provision of reticulated sewerage, follow a similar wording to the DCSP and WCCSP with respect to large lot subdivision. The provisions advise:
"The only exceptions to the requirement[s] for the provision of reticulated sewerage are as set out below:
...
4.2 Large Lots
Proposals for large lot subdivision can be considered if they do not involve the creation of lots less than 2000 [square metres] or density development at a density greater than R5, provided the responsible authorities are satisfied that no significant detriment to the environment is likely and there is no further opportunity for subdivision without sewerage."
(Page 15)
40 The only difference in the wording from the relevant provisions of the DCSP and WCCSP is the inclusion of environmental considerations in the assessment process.
The views of the Department of Health
41 The views of the Department of Health on this matter are important as they have the primary carriage of the DCSP. These views are expressed in the statement of evidence, dated 1 April 2007, of Mr Allen Tan. Mr Tan is a Scientific Officer in the employ of the Department of Health, and is responsible for the administration of both the Country and Perth Metropolitan Sewerage Policies.
42 In his evidence Mr Tan advises:
(a) The DCSP is an important Government policy to facilitate the orderly provision of sewerage services to allow expansion of country towns.
(b) The Department of Health uses the 'LiteSpatial' program provided by the Water Corporation for the assessment of subdivision applications. The program provides desktop information on sewerage reticulation, details of infill sewerage programmes, contours of land, watercourses, and dimensions and areas of land.
(c) With a sewer line along the rear boundary of the subject land, it is possible to provide a sewer connection.
(d) The contours on the subject land, as detected by the 'LiteSpatial' program, indicate that wastewater from developments on the subject land can drain into the sewer by gravity extension.
(e) Measurements indicate that a sewer extension of less than 91 metres can serve both proposed lots. This distance is relevant in assessing whether lots can reasonably be connected to a sewer and is guided by the provisions of the Health Act.
(f) Section 72(1) of the Health Act provides that owners, or occupiers, may be compelled by the local government to connect premises to the sewer when the sewer is complete and ready to use. In addition, s 81(1) of the Health Act, which is subject to s 72, provides that a local government can require premises to connect to the sewer when sewer connection is available and capable of being drained into within 91 metres of the sewer.
- (g) A cost of $50,000 plus to provide sewerage is reasonable because:
(i) the works could be constructed by a gravity feed connection (not a pump station) which is cost-effective; and
(ii) of the high value of the development (that is the newly created lot) following its subdivision (approximately $700,000).
(h) Having regard to cl 7.6 of the DCSP, the mandatory provisions of cl 4.1 and cl 4.2 of the DCSP would apply in this case. As such, the discretionary provisions of cl 5 of the DCSP are no longer an option.
(i) In any case, the proposal would not satisfy cl 5.2 (large lots) of the discretionary provisions because there is further opportunity for four other lots (Lot 28, Lot 30, Lot 32 and Lot 33) in the same street, and in similar circumstances, to subdivide without sewerage.
(j) The purpose of the DCSP would be defeated if a sewer is available and developments capable of connecting to it are not required to do so.
(k) The connection to sewer represents a better health outcome.
43 Clearly, the position taken by Mr Tan is that because of the location of the existing sewer at the rear of the subject land that the sewer is available, and that the proposed lots can reasonably be connected to it via gravity feed. His argument is therefore that the circumstances are captured by the mandatory provisions of the Policy, and that the exemption provisions do not apply.
The matter of nearby subdivisions
44 This matter is addressed in the witness statement, dated 2 April 2008, of Mr Peter Gianatti, a Senior Planning Officer in the Department for Planning and Infrastructure. He explains:
(a) Examples of similar subdivision proposals nearby include No 37 (Lot 221) Mansfield Road and No 12 (Lot 29) and No 23 (Lot 3) Wise Road. A reticulated sewerage service was required in each instance.
- (b) It is not known whether No 37 Mansfield Road and No 23 Wise Road were already connected to reticulated sewerage prior to subdivision. In the case of No 12 Wise Road, it already had connection to reticulated sewerage, but an extension of sewer main of some 50 metres to 60 metres was required to service one of the two lots proposed.
(c) In the case of No 9 Wise Road, the subdivision was approved without a condition requiring a connection to reticulated sewerage because the lots were at least 2000 square metres, and the relevant consultative authorities had advised that on-site effluent disposal was achievable. Also, it was considered that, at some 250 metres from the sewer line, connection to reticulated sewerage would require an unreasonable amount of works and cost.
45 In the applicant's response of 8 April 2008 to the witness statements of Messrs Gianatti and Tan, he does not take issue with the respondent's decision to impose a sewerage condition on No 37 Mansfield Road or No 12 and No 23 Wise Road. He argues that, in each case, the residences were much closer to the sewer than the existing residence on the subject land.
46 The applicant also argues that the circumstances applicable to the subject land are more relevant to those of No 9 Wise Road where a reticulated sewerage condition was not imposed on subdivision.
47 In the view of the Tribunal, although the various examples of nearby subdivisions are of interest, it is of far more importance that this case be judged on the particular circumstances of the proposal relevant to the subject land.
The matter of the Health Act
48 Both parties have regard to the provisions of s 72 and s 81 of the Health Act.
49 Section 72 states:
"72. Owners or occupiers may be compelled to connect premises when works complete[.]
(Page 18)
- (1) As soon as any sewer or any part of the sewer is complete and ready for use, the local government may by notice in writing demand that the owner or occupier of any land situate[d] in its district and capable, in the opinion of the local government, of being drained into such sewer, shall construct such drains and fittings from and in connection with such land to connect with the sewer as the local government may determine.
(2) Such drains and fittings shall be made and attached and be supplied with water according to such plans and directions as the local government shall deem proper for effectually carrying off all impurities from the land."
50 Section 81 states:
"81. Owner may be required to connect premises with public sewer[.]
(1) Subject to the express provisions of section 72, when there exists in any district any sewer (whether constructed by or under the control of the local government or not) ready for use and suitable for the removal of sewage on the water-carriage system, then the local government may, by notice in writing, require the owner of any house or land situated in the district within 91 metres of the sewer, and capable, in the opinion of the local government, of being drained into such sewer, to provide for the removal of sewage from such house or land, and for that purpose[,] to construct and provide, within a time specified in the notice, such drains and fittings as the authority having control of such sewer shall deem necessary, and to connect such drains with the sewer.
(2) Such drains and fittings shall be constructed and connected and be supplied with water in accordance with the laws and regulations applicable to the sewer, and in conformity with any directions given by the authority controlling the sewer ..."
(Page 19)
51 In his witness statement, Mr Tan argues at [15]:
"Measurements indicate that a sewer extension of less than 91 metres can serve both proposed lots. This distance is, in my view, relevant in assessing whether the lots can reasonably be connected to the sewer. This conclusion is guided by provisions of the Health Act, which although they are not directly applicable to an application for subdivision, in my opinion, give assistance in determining when a sewer can reasonably be connected."
52 In the applicant's response to the witness statements of Messrs Gianatti and Tan, he argues:
"25) I need to reiterate that to meet the health objectives of the DCSP one actually has to connect the point of production of sewerage (the existing residence) to the sewer. The sewer works I need to complete to do this are over 110 [metres] in length.
…
30) ... I'm going to be required to drain the existing residence, not the land as the land creates no sewerage. So in application of Section 81)1 one needs to consider it states 'to provide for removal of sewerage from such house or land', it is the residence creating the sewerage so it should be the measured point to the sewer."
53 In his witness statement, Mr Gianatti appears at his [30] to support the view of Mr Tan that if there is a pre-existing sewer, the local government could exercise its power under s 81(1) of the Health Act to require an owner to connect to the sewer if the "land" is within 91 metres.
54 However, he goes on to say:
"31) This application relates to the subdivision of the subject land, ss 72 and 81 of the Health Act are not concerned with subdivision. Rather, they operate independently to empower local governments to require connection to reticulated sewerage at the relevant times. These provisions do not relate to Condition 2 of this proposal.
(Page 20)
- 32) This application requires application of the DCSP not of the Health Act. The DCSP requires mandatory connection to reticulated sewerage for this subdivision.
33) The DCSP is clear in this regard in stating that if the statutory authority decides that it is reasonable for those lots proposed to connect to a reticulated sewerage service on the advice of relevant consultative authorities, then connection is a mandatory requirement under section 4.2. It does not impose a length limit of what is reasonable."
55 In the view of the Tribunal, the introduction of s 72 and s 81 of the Health Act is of limited assistance because:
(a) the matter before the Tribunal is concerned with the subdivision of the subject land and is not an issue over the development of a structure and the drainage of sewage from it; and
(b) the respondent in this matter is the WAPC and not the local government (Shire) as specified in s 72 and s 81 of the Health Act.
56 Nevertheless, Mr Tan has used the provisions of the Health Act to argue a case of "reasonableness" of a sewerage condition on subdivision. He has concluded that a sewer extension of less than 91 metres from the existing sewer line would reach the subject land, and is reasonable. However, he does not say whether an extension of some 110 metres to reach the existing residence on proposed Lot 700 would also be a reasonable requirement.
57 What is clear from the evidence of Mr Gianatti is that, in the case of No 9 Wise Road, the consultative authorities (Department of Housing, Water Corporation and Shire) advised that connection to sewer of some 250 metres was unreasonable in terms of works and cost.
58 The broad conclusion to be drawn from this is that, somewhere between the western boundary of proposed Lot 700 (some 80 metres from the sewer line) and a point 250 metres from the sewer line (as was the case with No 9 Wise Road), the consultative authorities would determine that excavation works and cost would switch from being "reasonable" to "unreasonable".
(Page 21)
59 The question of reasonableness is now the principal issue for determination by the Tribunal.
The matter of environmental damage
60 In the respondent's Statement of Issues, Facts and Contentions, it advises:
"16) To connect the rear lot to the reticulated sewerage service[,] there would need to be a cut in the junction of the reticulated sewer.
17) To connect the reticulated sewerage to the front lot, the Applicant will have to arrange an extension of the Water Corporation sewerage pipe by approximately 80 metres along one side of the boundary.
18) This would require a trench about 3 - 4 metres wide allowing for benching.
19) Aerial photography indicates an approximate length of only 30 [metres] of the lot would require removal of remnant vegetation. The width of removal of vegetation would need to be 3 - 4 [metres] to accommodate the width of the trench."
61 The overall position of the respondent as outlined at [19(f)] above is that the amount of remnant vegetation requiring clearing is relatively minor, but the position of the applicant is that the forest clearing (160 square metres) is significant and represents a large percentage of the remnant forest on the subject land.
62 From the applicant's Bundle of Documents, there are photographs showing a number of large to medium size trees. However, the Tribunal is unaware of the precise alignment of any sewer extension to the proposed Lot 700, or the number of trees or other vegetation that would be affected.
63 However, from an aerial photograph provided to the Tribunal of the subject land and other lots in the immediate area, it is clear that the amount of vegetation, other than around the residence and in the north-west corner, is relatively sparse in comparison to all lots south to Samworth Street and to the west of Wise Road. The same observation could be made for all lots on both sides of Wise Road north of Croft Road, and for the two lots to the east of Wise Road
(Page 22)
- near, and at the corner of, Samworth Street.
64 The point here is that it may be possible to align a new sewer line to minimise the effect on existing vegetation, or to undertake a replanting programme following tree removal.
Conclusions
65 The application for review was lodged against a decision of the WAPC to impose a condition of approval (Condition 2) on subdivision requiring the provision of a sewerage service to a proposed Lot 700 (containing an existing house) and a proposed Lot 701 (rear battleaxe lot). The applicant seeks a modified Condition 2 to provide reticulated sewerage to the rear battleaxe lot only which is close to an existing sewer line.
66 In undertaking this review, the Tribunal has examined the respective positions of the parties, the background to the proposal, the relevant legislative and policy provisions, the particular views of the Department of Health, the matter of nearby subdivision approvals, and the prospect of environmental damage if reticulated sewerage was to be provided to a proposed Lot 700, some 80 metres from the existing sewer line.
67 The position of the applicant is that earlier advice from the Water Corporation was that the existing sewer line running along the rear of the property was not available, and the applicant has provided witness statements from Mr Malcolm Fairbrass at Lot 32 Wise Road and Mrs Lucy Cartell (joint proprietor of the subject land) to that effect. Just why such advice would have been given by the Water Corporation is not known to the Tribunal.
68 The applicant also argues that the existing house on the subject land is too far from the sewer to consider it available to be serviced, and that the cost of providing reticulated sewerage in the order of $50,000 plus is unreasonable. Also, that nearby examples quoted by the respondent where sewerage was imposed as a condition of subdivision are irrelevant, because those original lots were either already connected to deep sewerage, or an existing residence was closer to the main sewer line (and could be more easily serviced) than the residence on the subject land, which is only some 16 metres from Wise Road.
69 There is also an argument that no information has come forward that the existing septic tank serving the residence would be detrimental to health. However, to extend the sewer to the residence would have detrimental effects on the existing remnant vegetation.
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70 The position of the respondent is that the connection of both proposed lots to reticulated sewerage is a mandatory requirement dictated by policy, and that, in any event, the cost of doing so is reasonable.
71 It is also argued that, where applications for subdivision on nearby land have been made and reticulated sewerage was available, a sewerage condition has been imposed. There is also the view that the amount of remnant vegetation to be removed for the laying of the sewerage mains is minor, and there has been no formal recognition by the Department of Environment and Conservation for its conservation.
72 On the matter of relevant legislative and policy provisions, the proposed subdivision aims to create lots greater than 2000 square metres in area and with frontages greater than 20 metres. Accordingly, there was no opposition from the Shire, as the proposal accords with the "special residential" zone requirements of the Scheme.
73 Regarding State subdivision policy, there is a clear intent to provide for the proper provision of services to each new lot. However, it is the extent or range of those services that is the issue before the Tribunal, and the DCSP is highly relevant here; particularly the mandatory provisions of the policy (s 4) and the exemption provisions (s 5).
74 A policy of interest is Policy DC 2.2, where it specifically states that, providing land for special residential purposes is suitable for on-site effluent disposal, reticulated sewerage may not be required. Clearly, these provisions need to be read in concert with the DCSP.
75 On the matter of on-site effluent disposal, the applicant argues that the loam soils on the subject land are excellent for this purpose. However, in the witness statement dated 28 March 2008 of Mr Fairbrass, who owns the adjoining property to the south, he advises:
"5. I contacted the Water Corporation after purchasing the property I reside at and asked to join the sewer located a short distance from my house at the rear of my property. I was told that the sewer was not available to me and I could not connect to it.
6. This information led me to spending a significant amount of money upgrading my septic system."
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76 Just what conclusions can be drawn from this advice relative to the subject land is not entirely clear, but it does appear that some difficulties with septic systems have occurred towards the rear of Lot 32, and could occur on the subject land. However, although there is no information before the Tribunal to confirm or dispute this point, the applicant has provided no scientific evidence on the suitability of the soils on the subject land for long-term effluent disposal.
77 On the matter of the DCSP and the WCCSP, the Tribunal believes that they essentially convey the same message; that is to say that reticulated sewerage is required to all subdivisions, except where exemptions are permitted under the discretionary provisions of policy (s 5).
78 What s 4 of the Policy says is that reticulated sewerage should be provided in those country towns listed in Sch 1 (which includes Margaret River), and where the statutory authority (in this case the respondent), after considering the advice of the consultative authorities, determines that the lots can reasonably be connected to power. The respondent believes that s 4 supports its position to reticulate both proposed lots as conveyed in its Condition 2 of approval.
79 The position of the applicant is that he is covered by s 5 (specifically s 5.2), as the lots are greater than 2000 square metres and there is no opportunity for further subdivision (below 2000 square metres) without sewerage.
80 Before making this assessment, one matter that needs to be put to one side is the question of the availability of the sewer, and despite some earlier reported advice by the Water Corporation that the sewer was not available, the Tribunal has no doubt that it is, as evidenced at [13] in Mr Tan's statement of evidence. In other words, there is no question that if the applicant wished to connect into the sewer, as indeed some landowners to the north in Wise Road have done, then he would be permitted to do so.
81 Just why Mr Fairbrass and Ms Cartell, as evidenced in their witness statements, would have been advised to the contrary is not known to the Tribunal.
82 The question of whether it is "reasonable" to require the proposed lots to be sewered is another matter, and in the statement of evidence of Mr Tan, he seems to derive some comfort in the definition of "reasonableness" from s 72 and s 81 of the Health Act, where a local government can require persons to connect to a sewer where such connection is within 91 metres.
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83 Mr Tan contends that the proposed Lot 700 is within 91 metres of the sewer but, as pointed out by the applicant, the existing residence is at least 110 metres away. Whether Mr Tan would consider an extension of 110 metres as reasonable is not known to the Tribunal.
84 What is clear though is that, in the case of No 9 Wise Road, as detailed in [57] and [58] above, it was determined that a connection to sewer of some 250 metres was unreasonable in terms of works and cost.
85 In making its assessment in this case, the Tribunal also needs to consider the matter of environmental effect, and the precedent effect if proposed Condition 2 of the approval was deleted, or modified as suggested by the applicant.
86 On the matter of the environmental effect on the subject land, if a 3 - 4 metre wide trench was dug from the existing sewer line to the residence, the Tribunal would acknowledge that remnant vegetation would be affected but, as pointed out in [64] above, it may be possible to align a new sewer to minimise these effects and to undertake a subsequent replanting programme if required.
87 On the matter of Condition 2 being deleted or modified, it is, in the view of the Tribunal, highly likely that other owners in Wise Road, or elsewhere in the locality in broadly similar circumstances, would seek a similar concession.
88 With regard to the question of the $50,000-plus cost of the extension and the arguments of the respondent and Mr Tan on the likely high selling price of a newly created lot, the Tribunal makes no comment other than to say that a residence within 2 kilometres of the Margaret River Townsite, and connected to sewer, is likely to be a more saleable proposition than one without the connection. However, the Tribunal has no documentary evidence to prove or disprove this contention.
89 On the matter of the validity or reasonableness of a planning condition, this was addressed by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
"A condition attached to a grant of planning permission will not be valid therefore unless:
- (1) The condition is for a planning purpose and not for any ulterior purpose.
(2) The condition reasonably and fairly relates to the development permitted.
(3) The condition is not so unreasonable that no reasonable planning authority could have imposed it."
90 In the circumstances of this case, the condition is for a planning purpose and directly relates to the proposed subdivision. Also, if it can be construed that a 91 metre distance to connect to a sewer is reasonable in terms of the Health Act, would an additional 20 metre extension of the sewer to 110 metres make the situation unreasonable? In the view of the Tribunal, it would not.
91 However, even if one puts the logic of [90] to one side, the Tribunal would agree with the contention of Mr Tan that the whole purpose of the DCSP would be defeated if a sewer is available and developments capable of being connected to it are not required to do so. This is particularly the case for lots on the west side of Wise Road in the vicinity of the existing sewer line.
92 One further matter that needs to be addressed is s 5 (discretionary provisions) of the DCSP, which advises that for lots to be created without reticulated sewerage they must be at least 2000 square metres, and the statutory authority, after considering the relevant advice, must be satisfied that there is no opportunity within the area covered by the proposal for further subdivision without sewerage.
93 Just what is meant by "... further subdivision without sewerage" in the context of the DCSP is not entirely clear to the Tribunal, but it does appear to contemplate a circumstance where special residential lots, without access to sewerage, can be created in country areas on the understanding that there is no prospect in future for smaller size lots without the provision of sewerage. In the circumstance here, there are existing special residential lots of some 5000 square metres which already have access to a sewer along the rear boundary of their properties, and the sewer is most certainly available to be utilised on subdivision.
94 A final point is that, although the Tribunal is not bound by the DCSP, it does take into consideration its policy objectives, and to that end, it is satisfied that proposed Condition 2 imposed by the respondent is a reasonable
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- requirement in the circumstances of this case, is advantageous to the community in terms of providing a more reliable and environmentally acceptable means of wastewater disposal, and may prove to be more advantageous to the applicant over time in terms of the sale of a lot with reticulated sewerage.
Order
95 For the foregoing reasons, the Tribunal orders that:
1. The application for review is dismissed.
2. The decision of the respondent is confirmed.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SENIOR SESSIONAL MEMBER
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