Starnes and Western Australian Planning Commission
[2012] WASAT 238
•10 DECEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: STARNES and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 238
MEMBER: MR J JORDAN (MEMBER)
HEARD: HEARING 4 SEPTEMBER 2012 - FINAL SUBMISSION 24 SEPTEMBER 2012
DELIVERED : 10 DECEMBER 2012
FILE NO/S: DR 163 of 2012
BETWEEN: ELIZABETH STARNES
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Survey strata subdivision Refusal Residential zoned land adjacent to Perth airport Requirement for a structure plan Subdivision possible without structure plan Two housing lots proposed under R20 density coding Existing house on proposed front lot Development control area under local planning scheme Preparation of structure plan requires cooperation between local, State and Federal governments and airport operator Master plan for Perth airport Specialised centre proposal under 'Directions 2031 and Beyond' Transitorientated development Proposed new heavy railway link to Midland line Precedent Orderly and proper planning
Legislation:
City of Belmont Local Planning Scheme No 15, cl 6.1, cl 6.1.1(a), cl 6.1.2, cl 6.2.4, cl 6.2.4.1, cl 6.2.4.2, Sch 14
Planning and Development Act 2005 (WA), s 241(3), s 251(1), Pt 8
Transfer of Land Act 1893 (WA), s 136C, Sch 9A
Result:
Application for review allowed
Conditional approval granted for proposed survey strata subdivision
Summary of Tribunal's decision:
This was an application for review of the refusal of a proposed survey strata subdivision in the suburb of Redcliffe, adjacent to the Perth airport. The concern raised about the proposed subdivision was that it was within a development area and the preference was that, as provided for in the local planning scheme, a structure plan be prepared. The structure plan was considered necessary because the area around the domestic terminal has been identified as a 'Specialised Centre' for the metropolitan region. It is planned to eventually relocate the domestic terminal to the site of the international terminal, redevelop airport and neighbouring land and to introduce a heavy railway link from the Midland line to serve the locality. The concern of the respondent was that subdivisions of the type proposed would make more difficult the planning of the locality and set an undesirable precedent.
The Tribunal found that the development of airport land was proceeding under its own master plan, and there was no prospect of a structure plan being prepared for the development area in the short to medium term. The proposed subdivision would be consistent with the zoning and density controls of the local planning scheme and with the development and subdivision pattern in the locality.
The Tribunal decided to grant conditional approval for the subdivision.
Category: B
Representation:
Counsel:
Applicant: Mr J Algeri (Acting as Agent)
Respondent: Mr S Allerding (Acting as Agent)
Solicitors:
Applicant: Algeri Planning & Appeals (Town Planners)
Respondent: Allerding & Associates (Town Planning Consultants)
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involve an application brought by Ms Elizabeth Starnes (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision by the Western Australian Planning Commission (Commission or respondent) to refuse an application for approval to subdivide into two survey strata lots and a common property lot to be used as an access leg, No 165 Coolgardie Avenue, Redcliffe (site).
Site and locality
The site has an area of 1,014 square metres and contains a single brick and tile house. To the rear of the site is an industrial lot of approximately 5 hectares used for longterm car parking associated with the Perth domestic airport. Between the paved car parking area and the back fence of the site is a drainage swale approximately 20 metres wide. The land to the rear of the site is owned by the Commonwealth of Australia.
The site is one of a number of lots zoned and used for residential purposes in an area bounded by the longterm car park to the northeast, Great Eastern Highway to the northwest, Tonkin Highway to the southwest and Perth airport to the east. The site is approximately 800 metres from the domestic airport terminal. Brearley Avenue, the main road approach to Perth domestic airport, dissects this Residential zoned area. The land reserved for the airport commences about 100 metres to the east of the site. The airport land between the residential locality and the domestic terminal is being developed for commercial and industrial purposes.
The residential area is comprised of some 250 lots of between 800 square metres and 1,000 square metres, some of which are developed with grouped dwellings.
Planning framework
The site is zoned Residential under City of Belmont Local Planning Scheme No 15 (LPS 15) with a density coding of R20.
Clause 6.1 of LPS 15 provides that Special Control Areas may be shown on the LPS 15 scheme map. Such areas include, at cl 6.1.1(a), 'Development Areas', to be shown on the scheme map with the designation 'DA' and a number. A DA is then listed in Sch 14 of LPS 15. The site is located within DA6, which has an area of about 160 hectares bounded by Great Eastern Highway, Tonkin Highway, Fauntleroy Avenue to the northeast and a line about 600 metres within the airport reserve to the east. Approximately two thirds of DA6 consists of land subject to the 'Perth Airport Master Plan 2009' (Perth Airport Master Plan).
Clause 6.1.2 of LPS 15 provides that provisions applying to special control areas apply in addition to the provisions applying to the underlying zoning.
Clause 6.2.4.1 of LPS 15 provides that the local government is not to consider recommending subdivision or approving development of land within a development control area, unless there is a structure plan prepared and adopted.
Clause 6.2.4.2 of LPS 15, however, provides that the local government may recommend subdivision if it is satisfied this will not prejudice the specific purposes and requirements of the development area. The Tribunal notes that there is no structure plan prepared under LPS 15 for DA6.
The City of Belmont (City) has produced the City of Belmont Local Planning Scheme No 15 Local Housing Strategy Report (LHS Report) to support LPS 15. Part 8.1.2 of the LHS Report provides:
Low density R20 should continue to apply at this stage to the Redcliffe area … This aims to maintain the predominant single residential lots of 800 [square metres] 850 [square metres], on the basis that to encourage increased development and subdivision at this stage may prejudice future structure planning which is intended for this area … The Perth Airport Master Plan will have implications for this area and therefore[,] changes in density should await further implementation of the Perth Airport Master Plan. It is expected that increased densities will occur in the medium to longer term with the structure planning process … in the interim the low density will continue to apply and this will maintain family type housing in this area to support the Redcliffe Primary School to the south.
The parties agreed that relevant to this matter were a list of some seven planning documents, including three separate state planning policies, two of the Commission's development control policies: 'Directions 2031 and Beyond' and the 'Draft Central Metropolitan Perth SubRegional Strategy'. The parties also listed documents prepared by the Department of Transport and the Westralia Airports Corporation, which has prepared the Perth Airport Master Plan.
The Perth Airport Master Plan includes a proposal to combine all passenger terminals at the current international terminal, and to develop airport land in DA6 for a full range of urban uses, which include:
•commercial;
•industrial;
•bulk goods show rooms;
•aircraft and cargo associated industries;
•accommodation;
•shops;
•consulting rooms;
•restaurants; and
•educational establishments.
Where appropriate, the Tribunal will cite the relevant passages from the considerable list of documents in the discussion of this matter.
Proposed subdivision
The proposed survey strata subdivision is for a 448 square metre lot containing the existing house with frontage to Coolgardie Avenue, a rear vacant lot of 441 square metres and, adjacent to the western boundary of the site, a 3.5 metre wide common property access leg with an area of 126 square metres.
Refusal
The Commission refused the proposed survey strata subdivision for the following reasons:
1.The proposed subdivision does not comply with the City of Belmont Local Planning Scheme No 15 by reason that the proposed lots are located within Development Area 6, which is a special control area under the Scheme, for which a structure plan is required to be in place before subdivision or development can occur.
2.Approval of the subdivision would set an undesirable precedent for the further subdivision of similar lots in the area.
The issues
The issues agreed between the parties can be restated as follows:
1)Whether the proposed subdivision should be approved, having regard to the relevant local government and State government town planning instruments.
2)Whether the proposed subdivision in DA6 may impact upon the future planning proposed in the policy documents of the Department of Transport and Westralia Airports Corporation that concern the future development of Perth airport.
3)Whether approval of the subdivision would set an undesirable precedent.
Discussion
State Planning Policy 4.2 Activity Centres for Perth and Peel (SPP 4.2) identifies Perth airport as a 'Specialised Centre' in the list of activity centres. Clause 5.1.1 of SPP 4.2 states that specialised centres focus on regionally significant economic or industrial activities that require a high level of transport accessibility. At cl 5.1.1(d) of SPP 4.2 there are listed key requirements for implementation, and these include preparation and review of local planning strategies.
There is no local planning strategy for the area controlled by the City within DA6 of LPS 15. Mr Wilmot Loh, a town planner for the City who appeared as a witness, cited cl 8.1.2 of the LHS Report, which states that low density housing should continue to apply in DA6 and single residential lots should be maintained, because increased development and subdivision at this stage may prejudice future structure planning. Reference was made to cl 9.1.1 of the LHS Report which refers to implementation of a strategy for DA6, which includes R20 zoning being maintained, pending a structure plan process that could allow up to R100 density.
In July 2011, the City wrote to the respondent asking that it consider declaring DA6 as an 'Improvement Plan Area' under Pt 8 of the PD Act, because the City considered substantial land use change or land assembly could only occur through this method of implementation.
Mr Loh was of the view that the declaration of an 'Improvement Plan Area' would assist in integrating development in the local planning area with the development occurring on the adjoining airport and Commonwealth government owned land. The Tribunal notes that the response from the Commission to date can be characterised as not much more than an acknowledgement of the request.
The evidence of Mr Jason Gordon, a planner from the Department of Planning, and Mr Loh was that the airport authority has commenced, and will continue for the next 10 to 20 years, to implement its proposals for the airport land, having regard to the Perth Airport Master Plan.
The Tribunal notes that, at present, as set out in the Perth Airport Master Plan, the development on airport land is proceeding without the benefit of a structure plan for DA6. Mr Loh said the City had asked for a contribution from the airport authority to help pay for the structure plan; that request is still being considered.
The Perth Airport Master Plan refers to a heavy rail spur from the Midland line near Bayswater to a station near where the current domestic air terminal now is, and then via tunnels to a second station at the proposed combined passenger terminal. The Western Australian government has released media statements restating support for the rail link. The rail link is also set out in the respondent's strategic regional framework 'Directions 2031 and Beyond', in the 'Draft Central Metropolitan Perth SubRegional Strategy' and in the Department of Transport documents 'Preliminary Perth Airport Transport Master Plan' and 'Draft Public Transport for Perth in 2031'. From the various statements and the press releases, it would appear that planning for the railway has commenced, and it might be built between the years 2020 and 2031.
To date, there has been comment on the 'final' alignment of the railway along the Tonkin Highway reserve and Stanton Street to the domestic terminal site, but no release of any technical detail.
The respondent cited SPP 4.2 where, at cl 5.3.1(3), it is stated that activity centres 'should be planned in line with transitorientated development principles'. In support of these principles, Mr Gordon emphasised in his evidence that the site was about 800 metres from the current domestic passenger terminal and the site of the potential railway station. Under transitorientated development principles, the R20 coded residential areas in DA6 would best be developed at densities up to R100.
It was the submission of the respondent that subdivision of the site should not occur until a structure plan has been adopted for DA6, as required by cl 6.2.4 of LPS 15, to ensure coordination of development that best achieves the objectives of the various plans and policies. It was the submission of the City and the respondent that every additional lot and residence would make more difficult achieving the desired transitorientated development for DA6.
The respondent pointed out that there are 38 lots of sufficient size within DA6 for battleaxe subdivision into two residential lots at R20. In the submission of the respondent, this would increase significantly the complexity of coordinating planning in DA6, and particularly in the catchment of the proposed railway stations.
The Tribunal is concerned that DA6 is 174 hectares but, of that, 105 hectares is within the airport or is Commonwealth land and is beyond the jurisdiction of the City. Within the City's jurisdiction under LPS 15, 69 hectares are within DA6 and, of this, 28 hectares is currently zoned Residential.
The Tribunal has no confidence structure planning is going to occur for DA6 in the short to medium term. There has been no advancement of a structure plan for DA6 since it was introduced with Amendment 95 to LPS 15 in 2006. There was also no evidence that the airport authority was ready to participate in a structure planning exercise for DA6 that included land outside its control. The evidence was that the development of airport land had commenced and will be continuing over the next 20 years, and that the railway, if it is going to be developed, would be constructed between 2020 and 2030, even without a structure plan for DA6.
Mr Allerding, making submissions for the respondent, said that it was not a timing issue. In the respondent's submission, the question was whether the proposed subdivision, and others that might follow as a consequence of any approval, would prejudice future planning. The respondent and the City said there had been virtually no support for subdivision in DA6 since its introduction in 2006.
The Tribunal is concerned that there has been adopted by the responsible authorities a considerable list of policy documents, which are consistent in the planning objectives for DA6, with no clear prospect of any statutory requirements within LPS 15 or under the PD Act being completed, such as preparation of a structure plan, or introduced to achieve these planning goals.
The Tribunal is aware that planning must have longterm goals, with timeframes, in some instances, over decades. Orderly and proper planning would not be served, however, if development of an R20 lot at a higher density were allowed, as ultimately proposed in various planning studies, without express provision within LPS 15. Such development, as well as being in conflict with LPS 15, would best require a structure plan for DA6, changes to LPS 15 and a high level of coordination with the development of adjoining properties to achieve the desired high density residential development.
This application, however, is not seeking a departure from the current coding or land use in this locality. The proposed subdivision satisfies the standards for the existing R20 coding for the land under LPS 15.
It was the respondent's submission that the planning circumstances of this proposal were no different from most of the other 38 lots of similar area. The respondent said the precedent created by an approval would make more difficult the structure planning necessary to achieve the best planning outcome for DA6.
Mr Algeri, the planning consultant for the applicant, pointed out that the proposed subdivision was consistent with the R20 standards under LPS 15 and so, in that regard, precedent was not a consideration. The submission was also made that this proposal may be distinguished from others because of the particular personal circumstances of the applicant. In that respect, a submission was made to consider the proposal as resolving a matter of hardship, as provided for under s 241(3) of the PD Act.
The Tribunal would make the comment that the subdivision would certainly ease the applicant's burden in caring for a brother and maintaining the land. The Tribunal was not satisfied, however, that the applicant's circumstances were sufficient to make hardship a significant and distinguishing factor in this matter.
Conclusion
The first issue in this matter, as set out above was:
Whether the proposed subdivision should be approved having regard to the relevant local government and State government town planning instruments.
It is of concern to the Tribunal that in the statutory provisions of LPS 15, most weight has been given to the requirement for a structure plan when there does not appear to be any realistic prospect for a structure plan to be prepared and adopted in the short to medium term, or even longer, for the area of DA6 that is within the jurisdiction of the City.
It is also of concern to the Tribunal that in this matter, subdivision and development control is being exercised on the basis of policy documents, albeit that they contain sound planning objectives, without there being undertaken, or being in reasonable prospect, any steps that would put into the local planning scheme specific planning controls to set aside the current zoning and residential density coding.
The proposed subdivision is consistent with the existing density coding and the zoning of LPS 15. The Tribunal does not consider it appropriate to effectively enforce for an unknown period of time a moratorium on existing planning controls which, in essence, were not changed when LPS 15 was amended six years ago. As stated in the LHS Report, low density residential at R20 is appropriate until such time as structure planning is carried out. This proposal does no more than that, without any concessions being sought to vary standards.
The Tribunal has concluded that, in the circumstances, the subdivision should be approved.
The second issue above is expressed as:
Whether the proposed subdivision in DA6 may impact upon the future planning proposed in the policy documents of the Department of Transport and Westralia Airports Corporation that concern the future development of Perth airport.
On this issue, the Tribunal has noted, from the evidence, that the development of Perth airport land, including between the residential area of Redcliffe and the domestic terminal, has proceeded consistent with the Perth Airport Master Plan, despite the absence of any structure plan for DA6. This development has proceeded in full knowledge of the Residential zoning of much of Redcliffe.
The evidence also is that the proposed route of the future rail line does not include any Residential zoned land. The evidence was that, if the railway proceeds, as with the development of the airport land, this will occur whether or not the development of Redcliffe at a higher density has been provided for in LPS 15.
The proposed subdivision may complicate achieving the proposed future high density residential development for the residential area of DA6; however, achieving an ultimate residential density of R100, as suggested in the various policy documents, will require fundamental restructuring of the subdivision and development pattern in this locality. The Tribunal considers that the impact of the proposed subdivision will not be significant in a residential locality subdivided into about 250 lots at an R20 density and, in turn, will have marginal impact on the future planning outlined in the policy documents of the Department of Transport and the Westralia Airports Corporation.
The third issue was:
Whether approval of subdivision would set an undesirable precedent.
The respondent is correct in that there is not any specific quality that would distinguish the proposed development from any of the other 38 lots within DA6 similar in size to the site. Some, or even many, of those landowners might seek to subdivide if this subdivision is allowed. As submitted by the applicant, however, such subdivision would be consistent with the density coding for this Residential zoned locality.
As stated above, the Tribunal is concerned that the absence of a structure plan is being cited as the basis for refusing subdivisions consistent with the density coding, in circumstances where there has been no such plan prepared in the six years since cl 6.2.4.1 requiring such a plan was included in LPS 15, and where there is no apparent prospect of such a structure plan being prepared.
The Tribunal accepts that an approval might be viewed as a precedent for others to follow but, in the context of the planning of this locality, as stated in respect of issue 2, this is likely to have only a marginal effect on the development of airport land and on the fundamental changes that would be necessary to achieve the stated planning objective of R100 for the Residential zoned land of DA6.
In the circumstances, the Tribunal has concluded that the subdivision can be allowed.
Conditions
As ordered by the Tribunal, the respondent filed a schedule of conditions without prejudice to its position in the matter. The applicant responded that it had no objection to the list of conditions. The Tribunal has determined that the conditions recommended are appropriate in the circumstances.
Orders
The Tribunal makes the following orders.
1.The application for review is allowed.
2.The decision of the respondent to refuse survey strata subdivision approval of No 165 (Lot 370) Coolgardie Avenue, Redcliffe is set aside and approval is granted for subdivision in accordance with the Algeri Planning and Appeals Plan, dated 29 November 2011, subject to the following conditions:
(a)all buildings, outbuildings and/or structures being demolished and materials removed from proposed Lot 2 and the common property lot;
(b)the land being filled and/or drained;
(c)the existing dwelling to comply with the requirements of the Residential Design Codes for a grouped dwelling;
(d)a 1.5 metre truncation to be provided at the junction of the accessway and the Coolgardie Avenue road reserve;
(e)the common property lot accessway being constructed and drained at the applicant's/owner's cost to the specifications of the local government;
(f)all septic sewer systems, including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems, are to be decommissioned, removed, filled with clean sand and compacted;
(g)suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to lots shown on the approved plan of subdivision;
(h)suitable arrangements being made with the Water Corporation so that provision of a sewerage service will be available to the lots shown on the approved plan of subdivision;
(i)the provision of easements for existing or future water, sewerage and/or drainage infrastructure as may be required by the Water Corporation being granted free of cost to that body; and
(j)arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an electricity supply service to the survey strata lot shown on the approved plan of subdivision, which may include the provision of necessary service access rights, either as an easement under s 136C and Sch 9A of the Transfer of Land 1893 (WA) for the transmission of electricity by underground cable, or (in the case of approvals containing common property) by a portion of the common property suitable for consumer mains.
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
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