STEWART and TOWN OF COTTESLOE
[2019] WASAT 100
•29 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: STEWART and TOWN OF COTTESLOE [2019] WASAT 100
MEMBER: MS M CONNOR, MEMBER
MR S WILLEY, MEMBER
HEARD: 6 & 7 FEBRUARY AND 15 & 16 JULY 2019
DELIVERED : 29 OCTOBER 2019
FILE NO/S: DR 206 of 2018
DR 212 of 2017
CC 1772 of 2018
BETWEEN: NATHAN LUKE STEWART AND JARRYD LEE STEWART
Applicants
AND
TOWN OF COTTESLOE
Respondent
Catchwords:
Town planning - Development application - Development - Local government land - Vehicle crossover - Pedestrian bridge - Verge embankment works - Whether review right available - Piecemeal applications - Proposal must be assessed on its merits - Traffic safety - Pedestrian safety - Streetscape - Amenity - Compatibility - Vegetation - Relevant planning considerations - Limitations of split planning system
Legislation:
Land Administration Act 1997 (WA), s 55(2)
Local Government (Functions and General) Regulations 1996 (WA), reg 32A, reg 32A(2)(b)(ii)
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 3, reg 12, reg 17, reg 17(3), reg 23, reg 23(b)
Local Government Act 1995 (WA), s 1.4, s 9.1(1), s 9.1(3), s 9.1(7), s 9.2, Pt 9 Div 1, Sch 9.1, cl 7, cl 8
Metropolitan Region Scheme
Planning and Development (Local Planning Scheme) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, cl 1, cl 60, cl 67
Planning and Development Act 2005 (WA), s 4, s 87(4), s 138(1), s 148, s241(1), s 241(1)(a), s 241(3), s 242, s 251(5), s 257B(2), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 9(a), s 24, s 27(1), s 27(2), s 31, s 91
State Planning Policy 7.3 Residential Design Codes Volume 1, cl 5.2.3, cl 5.2.5, cl 5.3.5
Town of Cottesloe Local Planning Scheme No 3, cl 1.5(d), cl 1.6(f), cl 5.2.3, cl 8.1, Sch 1
Result:
Applications dismissed
Summary of Tribunal's decision:
Nathan Luke Stewart and Jarryd Lee Stewart (the applicants) sought approval from the Town of Cottesloe (Town) to construct a vehicle crossover directly through the Deane Street verge embankment in Cottesloe to access their land (Lot 506). The Deane Street verge embankment is heavily vegetated and is steep. Lot 506 is almost three metres higher than the Deane Street pavement. Lot 506 was created via a subdivision in 2014 and a vehicle crossover was provided in order to satisfy the subdivision conditions.
The existing crossover for Lot 506 does not cut directly through the Deane Street embankment. Rather it is a shared crossover with adjoining Lot 505 in the form of a serpentine curve or chicane which requires vehicles to travel parallel to Deane Street up the embankment for approximately 12 to 13 metres (adjacent to a pedestrian footpath) before entering Lot 506.
The proposed works (which comprise a vehicle crossover, a pedestrian bridge over the crossover and verge embankment works to ensure adequate sightlines) provide a more direct access but require the excavation of at least 90m3 of the Deane Street embankment and the loss of five mature trees as well as other vegetation. The verge embankment works would extend for over 20 metres of the Deane Street verge to allow for adequate sightlines for vehicles using the proposed crossover. A pedestrian bridge over the future crossover is also proposed. The applicants only seek approval for the vehicle crossover and related works. No dwelling is yet proposed on Lot 506.
The parties agree that the proposed works constitute 'development' and therefore require approval under the Town of Cottesloe Local Planning Scheme No 3 (LPS 3). The parties also agree that the proposed crossover requires approval pursuant to reg 12 of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (LGUP Regulations). The Town refused both these applications.
The applicants also applied to the Town under reg 17 of the LGUP Regulations to undertake works on public land but, in these proceedings, denied that the proposed works required consent under reg 17 of the LGUP Regulations. The Town was of the view that 'permission' under reg 17 was required but there was no right of review from its decision to refuse that 'permission'.
The focus of the Tribunal proceedings was on the development application. This is because both parties agreed that the determination of the planning issues would inform how the remaining review applications could be dealt with.
Having heard both traffic engineering and planning evidence the Tribunal determined that the correct and preferable decision was to dismiss the application for review of the development application under LPS 3 and also application for a crossover made under reg 12 of the LGUP Regulations.
While the proposed crossover would be safe from a traffic engineering perspective, the Tribunal found that there would be significant adverse amenity impacts caused by the proposed works. The Tribunal considered the Deane Street locality to be a high quality residential environment. The verge embankment is striking and Deane Street effectively cuts through the landscape. The Tribunal found that the streetscape and amenity impacts that would result from the excavation of over 90m3 from the Deane Street embankment would not be acceptable from a planning perspective. While a verge replanting program was proposed, the Tribunal considered that the existing trees in the Deane Street verge embankment contributed strongly to the streetscape and amenity of the locality and were worthy of protection.
The Tribunal did not agree with the applicants that the proper approach was to the compare the proposed works against the existing crossover. The Tribunal considered that, while comparisons to the existing crossover could be made, the proposed works needed to be assessed on their merits. The Tribunal also found that the absence of any proposed dwelling on Lot 506 made it more difficult to fully assess the amenity impacts that would result from the proposed works.
Weighing the various planning considerations, the Tribunal determined that the correct and preferable decision was to refuse the development application under LPS 3 as well as the application made under reg 12 of the LGUP Regulations. The Tribunal considered while that 'permission' under reg 17 of the LGUP Regulations, it was not necessary to determine the review application made under reg 17 nor the question as to whether a right of review arises in relation to such applications.
Category: B
Representation:
Counsel:
| Applicants | : | Mr K Pettit SC |
| Respondent | : | Mr J Skinner |
Solicitors:
| Applicants | : | Lawton Gillon |
| Respondent | : | Thomson Geer - Perth |
Case(s) referred to in decision(s):
Antunovich and City of Stirling [2011] WASAT 90
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR(WA) 84
City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; 74 LGRA 68
Haladhar Holdings Pty Ltd and Shire of Kalamunda [2012] WASAT 143
Hill v State Planning Commission (1994) 10 SR(WA) 354
Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414
Land Alliance Pty Ltd and City of Belmont [2005] WASAT 100; (2005) 39 SR(WA) 119
Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115; (2003) 127 LGERA 36
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Moore and City of Cottesloe [2016] WASAT 118
Pioneer Concrete (Q) Pty Ltd v Brisbane City Council [1980] HCA 1; (1980) 145 CLR 485; 44 LGRA 346
Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1
Rigg v Western Australian Planning Commission [2017] WASAT 19; (2017) 90 SR (WA) 384
Ringtank v Ballina Shire Council [2007] NSWLEC 580
Russell v State Planning Commission (1984) 53 LGRA 403
Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42
SPB (Australia) v Town of Claremont [2003] WATPAT 138; (2003) 35 SR(WA) 32
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and background
These proceedings relate to three separate applications to provide a vehicle crossover and for related works at Lot 506 (house number 20A) Deane Street, Cottesloe (Lot 506).
Lot 506 was created via a subdivision approval granted by the Western Australian Planning Commission (WAPC) dated 23 April 2014 (WAPC Ref 149321) (Subdivision Approval).
Between Deane Street and Lot 506 there is limestone embankment which is densely vegetated. The embankment rises steeply up from Deane Street towards Lot 506.
As part of the Subdivision Approval a crossover was provided to Lot 506. The provision of a crossover, or the making of suitable arrangements for the provision of a crossover, was condition 5 of the Subdivision Approval. The crossover that was provided for the purposes of condition 5 is a shared access arrangement with adjoining Lot 505 which was also created via the Subdivision Approval (Existing Crossover). Lot 505 is immediately west of Lot 506. The background to the Existing Crossover is set out at [17]-[27].
The Existing Crossover provides access and egress to Lot 506 via a serpentine curve or chicane which requires vehicles to travel parallel to Deane Street on the verge embankment for a length of approximately 12 to 13 metres. The Existing Crossover is adjacent to the pedestrian footpath on Deane Street and is constructed but is not currently being used as significant further works are required to make it functional. The levels of the Existing Crossover need to be lowered in order to integrate with the crossover that was established for Lot 505: ts 64, 6 February 2019.
Nathan Luke Stewart and Jarryd Lee Stewart (applicants) requested the Town of Cottesloe (Town or respondent) not complete the remedial works to the Existing Crossover while the matter was before the Tribunal: ts 201, 16 July 2019. The Town agreed with this request.
The applicants seek to provide a direct crossover between Deane Street to Lot 506 in a manner which involves the removal of the existing landform on the Deane Street verge to provide for future access to a basement garage (Proposed Crossover). Due to the topography of the verge area, the footpath along this portion of Deane Street is proposed to be grade separated from the Proposed Crossover in the form of a concrete bridge for pedestrians at a height of approximately 2.2 to 2.7 metres (Proposed Pedestrian Bridge). The Proposed Pedestrian Bridge includes a pedestrian handrail.
The Proposed Crossover with the associated Proposed Pedestrian Bridge will result in a significant gap or break in the verge embankment when viewed from Deane Street. It is also the case that the verge area will need further excavation and vegetation removed in order to provide adequate sight lines along Deane Street. These verge works for sightlines will be referred to as the Proposed Verge Embankment Works.
These works together will be referred to as the Proposed Works.
It is not in contest that in order to undertake the Proposed Works the applicants require approval under the Town of Cottesloe Local Planning Scheme No 3 (LPS 3) on the basis that such works constitute 'development' in the sense contemplated by s 4 of the Planning and Development Act 2005 (WA) (PD Act). The application for development approval was refused by the Town on 24 July 2018 and is proceeding DR 206 of 2018 (Development Application).
Likewise, the parties agree that the Proposed Works require approval under reg 12 of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (LGUP Regulations) which regulate the establishment of crossovers between 'public thoroughfares' and private land. The Town refused the reg 12 application on 24 May 2017 and again on reconsideration under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on 24 July 2018. The reg 12 application is proceeding DR 212 of 2017 (Reg 12 Application).
There is a contest as to whether the Proposed Works also require approval pursuant to reg 17 of the LGUP Regulations. Regulation 17 addresses works undertaken on, over or under a 'public thoroughfare'. The applicants have applied under reg 17 but dispute that 'permission' under reg 17 is actually required (in addition to approval under reg 12 of the LGUP Regulations). There is also a question as to whether a review right to the Tribunal arises under reg 17 of the LGUP Regulations. The reg 17 application was refused on 24 July 2018 and is proceeding CC 1772 of 2018 (Reg 17 Application).
For the reasons that follow, the Tribunal affirms the Town's decision to refuse the Proposed Works. The correct and preferable decision is to dismiss the Development Application and the Reg 12 Application. For reasons that will be explained, we consider that permission is required under reg 17 of the LGUP Regulations but that it is unnecessary for the Tribunal to determine whether there is a right of review for the Reg 17 Application.
Issues for determination
The following issues arise for the Tribunal's determination:
Issue 1Does reg 17(3) of the LGUP Regulations apply to the Proposed Works (either in their entirety or individual elements)? If reg 17(3) is applicable to only elements of the Proposed Works, which elements does reg 17(3) apply to?
Issue 2If reg 17 of the LGUP Regulations does apply to any of the Proposed Works, is the decision of the Town not to grant permission reviewable by the Tribunal?
Issue 3Whether it is the correct and preferable decision to approve the Proposed Works in circumstances where the Proposed Crossover and the Proposed Pedestrian Bridge are not conventional and where they relate to an as yet unspecified (nor approved) form of development on Lot 506?
Issue 4Whether the Proposed Works should be approved having regard to the relevant matters set out in cl 67 of Sch 2 to the Planning and Development (Local Planning Schemes Regulations) 2015 (WA) (hereafter referred to as the 'deemed provisions')?
Issue 5Should approval be granted to the Reg 12 Application, the Reg 17 Application (if applicable) and the Development Application having regard to:
a)the applicable planning framework; and
b)the General Crossover Specifications and Concrete Crossover Specifications?
The applicants say that a further issue arises for consideration, namely:
Issue 6Whether the Existing Crossover is an authorised development and is consistent with orderly and proper planning
For reasons that will be explained, the Tribunal does not consider that Issue 6 arises for consideration nor does the Tribunal have jurisdiction to reach any binding determination in relation to the Existing Crossover. For this reason, we deal with Issue 6 first in our reasons.
Background to the Existing Crossover
One of the central planks in the applicants' case is that the Existing Crossover is inadequate. In order to address the applicants' case, the relevant background to the establishment of the Existing Crossover needs to be set out. This background is drawn largely from the respective statements of issues, facts and contentions (SIFCs) (particularly the respondent's), the respondent's bundle of materials provided pursuant to s 24 of the SAT Act, the applicants' bundle of materials and the parties' respective submissions.
As stated, the Subdivision Approval was granted on 23 April 2014 to the then owner Ms Sharon Alice Johns (the subdivision applicant). The Subdivision Approval was conditional. The conditions of approval are to be carried out before a subdivision approval becomes effective: s 138(1) of the PD Act. Condition 5 of the Subdivision Approval required the provision of a vehicular crossing for the lots proposed. The Town was the relevant clearing authority for condition 5.
Whilst the WAPC is ultimately responsible for determining whether the conditions of a subdivision approval have been adequately carried out, it is common practice for local governments and service authorities to be responsible for liaising with subdividers and then advising the WAPC that the condition has been adequately carried out such that the condition can be 'cleared'. In this regard the decision of the former Town Planning Appeal Tribunal (TPAT) in Hill v State Planning Commission (1994) 10 SR(WA) 354 is instructive.
The subdivision applicant sought desire to create Lot 506 without constructing physical access through the payment of a bond.
On 8 August 2014 an application for development approval for a dwelling on Proposed Lot G (which subsequently became Lot 506) was made to the Town. The application form was signed by the subdivision applicant as land owner. The applicant for the development was identified as Henriette Stewart. The proposed access arrangements for the dwelling were similar to the Proposed Works (Proposed Lot 506 Development).
On 31 March 2015 the Town advised the subdivision applicant that the Town was not prepared to 'clear' condition 5 of the Subdivision Approval and that proposed access arrangements for Lot 506 (which were, in effect, the Proposed Works) were not acceptable to the Town on the basis of the increased cost (to the Town) and also the detrimental visual impact on the streetscape. The Town did note, however, that no formal application for such a crossover had yet been made.
The Proposed Lot 506 Development was withdrawn on 11 May 2015.
The background of the Existing Crossover was further explained in an email sent to the Town's councillors on 19 August 2015. The email states:
In summary, the [subdivision applicant] was required to arrange access to the lot as part of the subdivision approval. The [T]own developed a solution, and the [subdivision applicant] agreed to bond the solution and enter into a legally binding agreement to construct the access at a later date. The [subdivision applicant] lodged a bond, and then asked the WAPC to clear the condition, over the Town, on the basis of the lodged bond, without entering into the binding agreement.
In the absence of any agreement, the outstanding conditions of subdivision needs to be bought into compliance, as the lot has now been created. The town provided the [subdivision applicant] an opportunity to make good on the original commitment to enter into a legally binding agreement, or alternatively, to complete the works. The [subdivision applicant] has chosen to do neither, and, in accordance with the commitment made by the Town, the Town has engaged a contractor to complete the outstanding works.
As can be discerned from the Town's email, the WAPC cleared condition 5 even though there was no agreement between the Town and the subdivision applicant as to when the crossover would be constructed. Because the WAPC permitted Lot 506 to be created as a separate lot without any formal access, the Town then established the Existing Crossover.
The Tribunal pauses to observe that despite there being an express right to challenge the clearance of subdivision conditions by s 251(5) of the PD Act, no such application was made to the Tribunal to resolve access arrangements for Lot 506 at the time of the clearance of condition 5. Presumably no such application was made because the WAPC ultimately agreed to clear condition 5 despite the Town's concerns.
Following the WAPC's clearance of condition 5, in August 2015 the Town made arrangements for the crossover for Lot 506 to be constructed. The Existing Crossover had been established at the time Lot 506 was transferred to the applicants on 1 October 2015.
Statutory planning framework
LPS 3 is a local planning scheme that has full force and effect as if enacted by the PD Act: s 87(4) of the PD Act. The purposes of LPS 3 include 'control[ing] and guid[ing] land use and development': cl 1.5(d). The aims of LPS 3 include to 'sustain the amenity, character and streetscape quality of the Scheme area': cl 1.6(f).
Lot 506 is zoned 'Residential' (with a density coding of R30) in LPS 3 and has an area of 515m2. The verge area the subject of the Proposed Works is not zoned or reserved in LPS 3. Lot 506 and Deane Street are zoned 'Urban' in the Metropolitan Region Scheme.
Clause 8.1 of LPS 3 provides that 'development' on all land which is zoned or reserved in LPS 3 requires approval. Deane Street is not zoned or reserved. However, cl 8.1 of LPS 3 is inconsistent with cl 60 of the deemed provisions. Clause 60 of the deemed provisions requires approval for 'any works on' or to 'use' any 'land' in the area covered by LPS 3.
By reason of s 257B(2) of the PD Act (together with reg 8(1)(c) and reg 10(4) of the LPS Regulations) the deemed provisions have effect and may be enforced as part of each local planning scheme. Therefore the deemed provisions form part of LPS 3. Section 257B(3) of the PD Act provides that to the extent of any inconsistency between a deemed provision and another provision of LPS 3, the deemed provision prevails: Puma Energy Australia and City of Cockburn [2016] WASAT 36; (2016) 89 SR (WA) 1 at [30].
Pursuant to cl 60 of the deemed provisions, approval is required to develop 'land' (that is, to undertake works on land) within the area covered by LPS 3 even where that land is neither zoned nor reserved. It follows that development approval is required for the Proposed Works. As stated, it is not in contest that the Proposed Works constitute development in a town planning sense such that approval is required.
The Town (and now the Tribunal) is required by cl 67 of the deemed provisions to have 'due regard' to a range of matters. In the context of the PD Act the term 'due regard' has been interpreted to mean that a decision-maker must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH Group Property Holdings Pty Ltd [2016]WASC141 at[46] (City of South Perth v ALH). The Town submits that the following cl 67 matters are engaged by the Proposed Works:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
(p)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
…
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
…
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application[.]
Statutory framework for vehicle crossovers
The provision of a crossover requires the approval of a local government pursuant to reg 12 of the LGUP Regulations. Regulation 12(1) provides for the making of the application for a crossover.
Regulation 12 of the LGUP Regulations is in the following terms:
(1)Upon the application of the sole owner, or a majority of the owners, of private land the local government may, in writing and subject to regulation 14(2)
(a)approve the construction, under the supervision of, and to the satisfaction of, the local government, of a crossing giving access from a public thoroughfare to
(i)the land; or
(ii)a private thoroughfare serving the land; or
(b)agree to construct for the applicant a crossing giving access from a public thoroughfare to
(i)the land; or
(ii)a private thoroughfare serving the land.
(2)A person is not to construct a crossing for vehicles from a public thoroughfare that is a Government road to —
(a)land on which premises have been or are about to be constructed; or
(b)a private thoroughfare serving the land,
unless the construction of the crossing has been approved by the local government under subregulation (1) and the crossing is constructed in accordance with the approval.
Penalty: a fine of $5 000.
The power to make reg 12 is found in cl 7 of Sch 9.1 to the Local Government Act 1995 (WA) (LG Act).
Regulation 12(2) of the LGUP Regulations prohibits the construction of a crossover other than in an accordance with an approval granted under reg 12(1). The LGUP Regulations operate as if they were local laws: reg 3. Regulation 23(b) states that Pt 9 Div 1 of the LG Act applies to a decision under reg 12 and that the applicant is an 'affected person'.
Part 9, Div 1 of the LG Act deals with 'objections and review'. It provides as follows:
(1)This Division applies when a local government makes a decision under this Act as to whether it will
(a)grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or
(b)renew, vary, or cancel an authorisation that a person has under any of those provisions.
(2)This Division also applies whenever a local government gives a person a notice under section 3.25, and for the purposes of this Division the giving of a notice under that section is to be regarded as the making of a decision.
(3)This Division also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division.
The term 'authorisation' is defined in s 9.2 of the LG Act to mean:
a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition.
Section 9.1(3) of the LG Act applies where a regulation that is to operate as a local law states that a decision under it is one to which this Division applies and that the person is specified as an 'affected person'. A right of review to the Tribunal for an 'affected person' is provided by s 9.1(7) of the LG Act. Regulation 23 of the LGUP Regulations operates as a local law and specifies that the applicant for, in this instance, a crossover is an 'affected person'. The Tribunal therefore has jurisdiction to review the Town's decision on the Reg 12 Application. Neither party submitted otherwise.
Regulation 17 of the LGUP Regulations
Whilst the jurisdiction to deal with the reg 12 proceedings are not in dispute, the reg 17 proceedings are less clear. The applicants' case is that only approval under reg 12 of the LGUP Regulations is required. The Town says approval under both reg 12 and reg 17 of the LGUP Regulations is required.
In terms of the statutory scheme, reg 17(1) provides that a person is not to, without lawful authority, construct anything on, over, or under a 'public thoroughfare' or other public place that is local government property. The power to make reg 17 derives from cl 8 of Sch 9.1 to the LG Act.
Reg 17 of the LGUP Regulations is in the following terms:
(1)A person must not, without lawful authority, construct anything on, over, or under a public thoroughfare or other public place that is local government property.
Penalty: a fine of $5 000.
…
(3)A person may apply to the local government for permission to construct a specified thing on, over, or under a specified public thoroughfare or public place that is local government property.
(4)Permission granted by the local government under this regulation
(a)must be in writing; and
(b)must specify the period for which it is granted; and
(c)must specify each condition imposed under subregulation (5); and
(d)may be renewed from time to time; and
(e)may be cancelled by giving written notice to the person to whom the permission was granted.
(5)The local government may impose such conditions as it thinks fit on granting permission under this regulation including, but not limited to, any of the following
(a)a condition imposing a charge for any damage to the public thoroughfare or public place resulting from the construction;
(b)a condition requiring the applicant to deposit with the local government a sum sufficient in the opinion of the CEO of the local government to cover the cost of repairing damage to the public thoroughfare or public place resulting from the construction, on the basis that the local government may retain from that sum the amount required for the cost of repairs by the local government if the damage is not made good by the applicant.
(6)It is a condition of the permission granted under this regulation that
(a)the ordinary and reasonable use of the public thoroughfare or public place for the purpose to which it is dedicated is not to be permanently or unreasonably obstructed; and
(b)the person carrying out the construction work ensures that a footpath of a public thoroughfare or other public place that is local government property is covered during the period specified in writing by the local government so as to
(i)prevent damage to the footpath; or
(ii)prevent inconvenience to the public or danger from falling materials;
and
(c)damage to the public thoroughfare or public place resulting from the construction is repaired to the satisfaction of the CEO of the local government.
(7)A person granted permission under this regulation must comply with each condition of the permission.
Penalty: a fine of $5 000 and a daily penalty of $500 for each day during which the offence continues.
(8)A person who constructs anything in accordance with permission granted under this regulation must
(a)maintain it; and
(b)obtain from an insurance company approved by the local government an insurance policy, in the joint names of the local government and the person, indemnifying the local government against any claim for damages which may arise in, or out of, its construction, maintenance or use.
Deane Street, including the verge area, is Crown land which, pursuant to s 55(2) of the Land Administration Act 1997 (WA) is under the care, control and management of the Town. Section 1.4 of the LG Act defines 'local government property' to mean 'anything, whether land or not, that belongs to, or is vested in, or under the care, control or management of, the local government'. It follows that the Deane Street verge is 'local government property' for the purposes of reg 17 of the LGUP Regulations.
Regulation 17(3) of the LGUP Regulations allows a person to apply to the local government for 'permission' to construct a specified thing on, over, or under a specified public thoroughfare or public place that is 'local government property'. Regulation 17(4) outlines the requirements for the granting of such 'permission'. Regulation 17(6) includes conditions that may apply to any permission granted. Regulation 17(6)(b) provides that the person carrying out construction work is to ensure that the 'footpath of a public thoroughfare' is covered as required by the local government in order to inter alia prevent damage to the footpath. Regulation 17(8) relates to maintenance and insurance.
Regulation 23 of the LGUP Regulations does not include reg 17 as one of the regulations that Pt 9 Div 1 of the LG Act applies to. The applicants say instead that the right of review is provided by the terms of s 9.1(1) of the LG Act (set out above at [38]).
Regulation 32A of the Local Government (Functions and General) Regulations 1996 (WA) (LGFR Regulations) states:
(1)The following are excluded from being authorisations for the purposes of the definition of authorisation in section 9.2 of the Act
(a)an authority to carry out private works on local government property;
(b)an authority allowing the use of local government land or premises, or the use of local government goods or equipment.
(2)Despite subregulation (1), an authority set out in paragraph (a) or (b) of that subregulation is to be regarded as an authorisation under section 9.2 of the Act if
(a)a local law, or regulation that is to operate as if it were a local law, states that a decision in relation to that authority is one to which Division 9 of the Act applies and that a person specified in it is an affected person for the purposes of that Division; or
(b)a person has
(i)by virtue of that authority, a reasonable expectation of the enjoyment (or the continued enjoyment) of a right or interest conferred by that authority; or
(ii)by virtue of the usual circumstances surrounding the grant of an authority of that type, a reasonable expectation of successfully applying for the right or interest conferred by that authority.
The Tribunal's decision in Moore and City of Cottesloe
A previous development application to, in effect, cut through the Deane Street embankment to provide for basement access to a proposed new residence was considered by the Tribunal in Moore and City of Cottesloe [2016] WASAT 118 (Moore).
The relevant property was 21 Deane Street which is (in an approximate sense) opposite Lot 506. The review was dismissed. Both parties referred the Tribunal to Moore in their respective submissions. It will be necessary to refer to the Tribunal's analysis in Moore later in these reasons.
The Deane Street verge area
At a number of points in these reasons, the Deane Street verge area and in particular the impact of the Proposed Works on the verge area will be discussed. It is therefore important that the Tribunal describe the Deane Street verge embankment, especially on the northern side.
The embankment is limestone and rises sharply to about 3 metres on each side of Deane Street. On the northern side, which Lot 506 'fronts', the embankment is heavily vegetated with mature trees (which extend to a height of approximately 6 metres above the Deane Street pavement) and groundcover plants as well as limestone outcrops. The verge area is, as will be explained, quite a striking feature of this locality. The heavily vegetated area of the embankment extends for a length of approximately 80 metres on the northern side of Deane Street.
The fact that Deane Street is narrow (a 4.8 metre wide road surface) adds to the effect created by the vegetated embankment because it creates a sense of enclosure when one is on Deane Street.
On the southern side of Deane Street there is a limestone wall which is far less vegetated. 17 Deane Street has an access ramp up the embankment similar to what has been established for the Existing Crossover.
Parties' submissions
Applicants' submissions
The applicants' submissions start from the premise that, in practical terms, there is no existing crossover for Lot 506. They submit that what currently exists is 'just a collection of partly broken pieces of concrete': ts 172, 16 July 2019. The applicants submit that the Existing Crossover is 'silly … [and] poor planning': ts 172, 16 July 2019. The decision to install the crossover before approval of a residence was contrary to good sense and good planning: ts 172, 16 July 2019.
The applicants urge the Tribunal to consider what the applicants and the local residents would be left with if the Proposed Works are refused and what would be better or worse?: ts 173, 16 July 2019.
The applicants' case is that the Proposed Works produce a better planning outcome than the existing situation. The applicants also submit that they are entitled to a crossover: ts 174, 16 July 2019.
The applicants submit that the Proposed Works produce a safer option for pedestrians and cyclists as there will no longer be a requirement for vehicles to as it were share and cross the footpath as one accesses and egresses Lot 506.
The applicants further submit that the Tribunal should focus on safety and not be 'more concerned about the trees, and the landscape': ts 176, 16 July 2019. As a matter of risk, the Proposed Works should be preferred. The applicants also submit that safety trumps amenity in terms of balancing considerations: ts 178, 16 July 2019. In any event, any amenity impact arising from the Proposed Works will be short-term and only until the revegetation occurs as would be required by approval conditions.
In his closing address, Mr K Pettit SC, counsel for the applicants, submitted that on the question of amenity, the Proposed Works 'does not diminish the steep verge character of [the locality]. It is on the contrary, it is an enhancement an emphasis of that character': ts 178, 16 July 2019.
The applicants also submit that if the Proposed Works are not approved and they are made to utilise the Existing Crossover it will result in significant inconvenience to the ultimate development of Lot 506 for residential purposes. That is because a significant part of the ground floor will need to be dedicated to the garaging of motor vehicles unless a car lift is installed to enable a basement garage to be established. That will be costly and inconvenient for the applicants.
The applicants referred to the Tribunal's decision in Moore whereby an application for review of a similar proposal on the opposite side of Deane Street was refused. The applicants' submit that Moore is distinguishable from the facts that arise in these proceedings because rear access was already available to that lot via a right-of-way.
The applicants submit that the impact of the Proposed Works will be significant but the impact is 'justified in all of the circumstances': ts 211, 16 July 2019. Whatever the impact is, the applicants submit it should be evaluated taking account of the verge area after it has been relandscaped: ts 211, 16 July 2019.
Respondent's submissions
The respondent's submissions highlighted that the Tribunal has before it three applications: the Development Application; the Reg 12 Application and the Reg 17 Application.
The Town considers that if the physical works required to allow the Proposed Crossover to be constructed are approved by the Tribunal (the physical works proposed by the Development Application which are necessary to establish the Proposed Crossover) then the Town will not object to the Reg 12 Application also being approved: ts 191, 16 July 2019.
The Town maintains that approval under reg 17 of the LGUP Regulations is required. In its closing submissions, the Town outlined its position as to why it considers there is no right of review arising from a decision to not allow private works on what is, in effect, local government land. Mr J Skinner, counsel for the Town, observed that it was '[n]ot surprising that there would be a very limited right of review [to] the Tribunal from that sort of decision': ts 194, 16 July 2019.
On the question of whether the Tribunal review could be sustained if approval under reg 17 of the LGUP Regulations is required and no right of review arises, the Town submitted that the issue should not disrupt the proceedings for two reasons.
The first is that the applicants consider that approval under reg 17 is not required. That is a dispute that may take place in a different place and it is an issue that the Tribunal does not need to determine. The second is that, whatever the position is in relation to reg 17, there is the opportunity to apply again for that permission. It may also be the case that approval of the Development Application (and the Reg 12 Application) may give rise to a 'reasonable expectation' for the purposes of reg 32A(2)(b)(ii) of the LGFR Regulations which may then give rise to a review right.
The Town submits that the Tribunal needs to focus on the Development Application because everything else flows from that planning determination.
The Town submits that the history of the Existing Crossover is inextricably tied to the Subdivision Approval which created Lot 506. The crossover that was approved (and ultimately constructed) by the Town in relation to the Subdivision Approval was the Existing Crossover.
The Existing Crossover was constructed by the Town in order to ensure condition 5 was satisfied and is extant. The Town does not consider that the proceedings are, in effect, a choice between two crossover proposals. There is one application that is before the Tribunal for approval. That application is for the Proposed Works (which comprises the Proposed Crossing, the Proposed Pedestrian Bridge and the Proposed Verge Embankment Works).
The respondent submits that the applicants' attempt to make the planning proceedings a contest of crossovers offends one of the fundamental principles of planning law by inviting the Tribunal to assess something (the Existing Crossover) which is simply not before it. The Tribunal must assess the merits of the Proposed Works. The Tribunal is not being asked to approve the Existing Crossover.
Mr Skinner outlined that the Tribunal must consider LPS 3 (including the deemed provisions) and whether the Proposed Works are consistent with orderly and proper planning and whether there will be an adverse impact on the streetscape and amenity. The question is not whether the Proposed Works 'are better or worse than something else': ts 198, 16 July 2019. The proceedings are also not just about engineering issues. A planning decision 'is about more than engineering risk': ts 199, 16 July 2019.
The Town further submits that if the applicants do want to create a basement garage, it should be provided for within their own property (and not by removing the existing verge to create basement access). The question is not what arrangements are the most convenient for the applicants. If the applicants desire a basement garage, then they can design that based around the Existing Crossover.
Ultimately the Town agrees that if the Proposed Works are appropriately implemented, the traffic and safety risks are acceptable: ts 202, 16 July 2019. However, the Proposed Works would have a significant adverse impact on the streetscape and amenity of the locality. The Town referred to Moore where the Tribunal stated:
[53]The proposed verge works introduce a driveway that requires the complete removal of a section of the existing embankment in the verge adjacent to the site. The proposal would also require cutting back sections of the face of the embankment to provide sightlines[.]
[56]The proposed development would introduce a gap in the embankment where before there was no gap. There are no other similar gaps cut into the embankment to the road level on Deane Street. We are satisfied that such a change would have a significant impact on the appearance of the streetscape.
The Town submits that exactly the same findings can, and should be, made in relation to the Proposed Works.
The Town stressed that its concern in relation to the impacts of the Proposed Works is not solely about vegetation. The Town fundamentally opposes the Proposed Works because:
[it] involves the removal of a section of the existing embankment and the verge, cutting back sections of the face of the embankment to provide sightlines, introducing a gap where there is none at the moment and where there are no other similar gaps cut into the embankment of what is a significant existing visual feature in the streetscape.
(ts 204, 16 July 2019)
The Town also considers that while the Existing Crossover has risks, those risks are acceptable and (it is submitted), are consistent with the risks that would apply to every crossing that crosses a footpath.
Submissions pursuant to s 242 of the PD Act
Various landowners on Deane Street and Avonmore Terrace were granted leave pursuant to s 242 of the PD Act to make submissions. One submission, drafted by the town planning firm Allerding and Associates, was submitted on behalf of these landowners.
The overall thrust of the s 242 submission is that the Proposed Works would constitute an unacceptable planning outcome for reasons associated with traffic and pedestrian safety, the impacts on amenity and the loss of vegetation on the Deane Street embankment.
The evidence
The Tribunal heard from five witnesses. The Town called Mr Leigh Dawson (a traffic engineer), Mr Aaron Lohman (a town planner) and Ms Vivienne Jagger (a nearby resident). Ms Jagger did not need to appear at the final hearing.
The applicants called Mr Colin Ryk Kleweg (a traffic engineer) and Mr Edward O'Connell (a town planner).
The traffic experts also prepared joint statements.
The traffic engineering evidence
As is apparent from Issue 6, the applicants' case is that these proceedings are, in effect, a contest between the Existing Crossover and the Proposed Crossover. The Tribunal will address that contest later in these reasons.
The traffic engineering evidence focused on the question of traffic safety in relation to the Proposed Works and the Existing Crossover.
The quantity of excavation and vegetation removal required
As has been explained, the Proposed Crossover seeks to in effect cut through the existing elevated embankment within the verge to allow access to a future basement carpark. Because the Proposed Crossover will need to cut into the verge the maintenance of vehicle sightlines are an issue. The issue being that to provide adequate sight lines the verge area east and west of the Proposed Crossover would need to be excavated, cut back and vegetation would need to removed (and then relandscaped).
The sight lines for entering Deane Street in forward gear were calculated from 2.5 metres back from the Deane Street pavement (not the boundary of the road reserve) and at an assumed driver height of 1.1 metres.
In relation to the Proposed Crossover, the experts agreed that in order to comply with the sightline requirements in Australian/New Zealand Standard 2890.1:2004 Parking Facilities: Part 1: Off Street Parking, a minimum of 40 metres for sight distance on roads with a posted speed of 50 kilometres per hour is required.
Due to Deane Street sloping 9% in the vicinity of the Proposed Crossover, Austroads Guide to Road Design (Part 3 Geometric Design) requires that an additional 8 metres sight distance be provided in areas where there is a 9% gradient in a 50 kilometre posted area.
It follows that a sight distance of 48 metres is required in order to comply with these road engineering standards. The traffic experts agree that in order to provide adequate sight lines, the Proposed Verge Embankment Works are necessary.
The applicants prepared a revised 'crossover design and sight distance plan' (Drawing C301 Rev A) (Exhibit 25) which outlined how much verge area was proposed to be cut back (and some further re-planting was proposed). The amount of excavation and cutting required to maintain sight lines to Deane Street reduces with distance from the Proposed Crossover.
East of the Proposed Crossover the additional cutting would extend to more than 9 metres from the Proposed Crossover. West of the Proposed Crossover the cutting would extend for more than 6 metres. The cutting extended into the 'frontages' of adjoining Lot 505 and 20 Deane Street. The volume of material required to be excavated from the verge area to provide these sight lines is approximately 90m3.
The excavation and removal of vegetation that is shown on the 'crossover design and sight distance plan' would result in a total length of almost 20 metres of cutting and excavation on the Deane Street verge embankment. However, as stated, the 'crossover design and sight distance plan' that is before the Tribunal only provides for cars to enter Deane Street in forward gear. The verge area would then be revegetated.
These further works to allow for sight distances on Deane Street comprise what we term the Proposed Verge Embankment Works. Furthermore, in order to allow for cars to reverse out of the Proposed Crossover the parties agree that some additional excavation and vegetation would be required.
The traffic experts agreed that the Proposed Verge Embankment Works provided sight lines for vehicles entering Deane Street in forward gear that meet all sight distance engineering requirements applicable in Western Australia.
If the Proposed Crossover was engineered to allow for vehicles to reverse onto Deane Street, the traffic engineers estimate that the excavation of an additional third of material would be required. However, the experts disagreed whether the additional one-third excavation was based on the overall 90m3 or whether it was only one-third of the excavation required only for the sight lines: ts 21, 29, 30 and 46, 15 July 2019.
It is unnecessary for the Tribunal to resolve this issue. It is accepted by the parties that the Tribunal does not have before it a plan showing the full extent of excavation and clearing that would be required in order to allow a vehicle to reverse out of the Proposed Crossover. The parties each agree that some further excavation and clearing would be required.
The issue of cars reversing onto Deane Street
The applicants point to the respondent's draft without prejudice conditions as providing the answer to the issue of cars reversing out onto Deane Street.
The draft conditions restrict the use of the Proposed Crossover until a residential development with a facility which enables a vehicle to turn 180 degrees is provided (condition 1a) and there is also a condition that vehicles may only enter Deane Street in forward gear (condition 11).
As was made plain during the hearing, the Tribunal was concerned that it is by no means certain that every driver will have access to the future (as yet unspecified) basement garage in order to ensure that a vehicle can always access Deane Street in a forward gear. People making deliveries to Lot 506, or even friends, may not be able to access the future basement carpark in order to turn their vehicles around especially if the occupants are not home.
It is the view of the Tribunal that, if approved, the Proposed Works should be designed to allow a vehicle to reverse from the Proposed Crossover onto Deane Street. We do not consider that condition 11 which provides that vehicles may only enter Deane Street from Lot 506 in forward gear - is appropriate to manage traffic safety. It is a condition that is impossible to police. Planning authorities should not impose conditions that are not workable or enforceable: Land Alliance Pty Ltd and City of Belmont [2005]WASAT100; (2005) 39 SR(WA) 119 at [42]-[44]; Kipa Freeholds Pty Ltd v Development Assessment Commission (1999)101LGERA414 at[39] (DebelleJ).
In Ringtank v Ballina Shire Council [2007] NSWLEC 580, Senior Commissioner Roseth of the New South Wales Land and Environment Court said, at [25]: 'It is not good policy to impose conditions that are unlikely to be complied with'. We agree. See also Haladhar Holdings Pty Ltd and Shire of Kalamunda [2012]WASAT143 at[108] in this regard.
The Tribunal considers that if the Proposed Works are to be approved it should be on the basis that vehicles are capable of reversing out onto Deane Street.
As has been explained, in order to achieve adequate sight lines for a reversing vehicle the engineers were only able to estimate how much additional cutting would be required. As stated, the 'off the cuff' answers of the experts were that between one-third to one-half of additional excavation and cutting would be required: ts 30 and 46, 15 July 2019.
The Existing Crossover compared against the Proposed Works
The applicants' case is essentially that in a contest between the Existing Crossover and the Proposed Crossover, the Proposed Crossover should be preferred essentially because it is safer from a traffic and pedestrian perspective.
Mr Pettit suggested on the issue of reversing out of the Proposed Crossover that it was equally possible that an 'Uber Eats' driver would attempt to reverse down the Existing Crossover back on to Deane Street.
Mr Dawson agreed that the risk of reversing out of the Proposed Crossover was 'slightly' less than the risk of reversing out of the Existing Crossover: ts 29, 15 July 2019.
However, Mr Kleweg, the applicants' traffic engineer, accepted, quite properly, that there were risks associated with the Proposed Pedestrian Bridge such as children climbing over railings: ts 97, 15 July 2019. There would also be issues with the ongoing maintenance of appropriate sight lines along Deane Street: ts 99100, 15 July 2019.
The applicants' case is that the overall risk of a mishap is greater with the Existing Crossover. This is in part due to the manoeuvring required to navigate the serpentine curve; the capacity of the proposed 'w beam' railing to prevent a vehicle from falling down the embankment in the event of a collision; the fact that the Existing Crossover will be a shared environment in the sense that it will cross a footpath that will be used by pedestrians and cyclists; the angle at which the Existing Crossover meets Deane Street; and the proximity of the Existing Crossover with the intersection of Deane Street and Avonmore Terrace.
We will return to discuss traffic issues at [213]-[220].
Planning evidence
The evidence of the planning experts focused primarily on the amenity and streetscape impacts of the Proposed Crossover on the Deane Street locality. The planners' evidence will be discussed in detail in Issue 4 at [153]-[212].
Nature and purpose of the review
In undertaking a review of the Town's decisions, the Tribunal hears the matters de novo: s 27(1) of the SAT Act. The purposes of a review is to produce the correct and preferable decision: s 27(2) of the SAT Act.
Analysis and disposition
Issue 6: Whether the Existing Crossover is an authorised development and is consistent with orderly and proper planning
We will begin by addressing the applicants' Issue 6. This goes to the heart of the applicants' case that these proceedings are, in effect, a contest between the Existing Crossover and the Proposed Works and associated Proposed Verge Embankment Works.
It is important to stress that the applicants have a right (subject to the question of landowner consent as the application involves the verge area) to apply for a crossover so that they do not need to rely on or utilise the Existing Crossover. It is also the case that the applicants are entitled to attempt to demonstrate by way of evidence and in submissions that the proposed alternate access arrangements (being the Proposed Works) are meritorious from a planning point of view (which includes the full range of applicable planning considerations).
The applicants are also entitled to seek to demonstrate the merits of their proposal by reference to the Existing Crossover. However, the Tribunal has no power to make any determination as to whether the Existing Crossover is consistent with orderly and proper planning or is otherwise appropriate from a planning viewpoint. The Tribunal is a creature of statute and the Existing Crossover is simply not a matter that is before it in any formal sense. The Town has made no reviewable decision in relation to the Existing Crossover: The Match Group v Metropolitan South West Joint Development Assessment Panel [2014]WASCA50; (2014)200LGERA227 [20] to [23] (Pullin, Newnes and Murphy JJA).
If the Tribunal considers that the correct and preferable decision is that the Proposed Works warrant approval, then approval should be granted. The consequence would be that the verge area that occupies the Existing Crossover would then be removed and revegetated by the applicants in accordance with conditions agreed between the parties.
The point is that, ultimately, the Tribunal must evaluate the Proposed Works on its merits. Section 9(a) of the SAT Act requires the Tribunal to make review decisions fairly 'and according to the substantial merits of the case'.
Likewise, the clear ratio decidendi of the decision of the Full Court in Falc Pty Ltd v State Planning Commission (1991)5WAR522; 74LGRA68 (Pidgeon, Nicholson and IppJJ) (Falc) is that a planning proposal must be assessed on its merits in accordance with applicable town planning considerations: at 79 (per Ipp J).
The principle that formed the basis of Falc was reiterated by the former TPAT in SPB (Australia) v Town of Claremont [2003] WATPAT 138; (2003) 35 SR(WA) 32 where it found (at [70]) that:
The appellants are entitled to have an application for development of their land determined on its merits, and in the light of operative planning instruments and seriously entertained planning proposals as they exist at the time of the application[.]
Whilst we agree that in seeking to persuade the Tribunal, the applicants are entitled to demonstrate the merits of their proposal and even the demerits of the Existing Crossover, we do not accept that these proceedings reduce to a contest with the Existing Crossover. Despite the applicants' invitation, it is not for the Tribunal to, as it were, unpick or review the decision of the Town to establish the Existing Crossover.
The Existing Crossover was established as part of the Proposed Subdivision. On account of the Proposed Lot 506 Development (which was ultimately withdrawn), it was plain that the Town did not support access proposals that would cut through the Deane Street verge adjacent to Lot 506.
As we explained, s 251(5) of the PD Act provides an express right of review in relation to the performance of, and compliance with, subdivision conditions. The subdivision applicant could have sought a review by the Tribunal as to the appropriate location of a vehicle crossover for Lot 506 as part of the Subdivision Approval.
The subdivision applicant chose not to press her claims that the access for Lot 506 should be provided directly from Deane Street through the verge area and instead requested the WAPC to simply clear condition 5 on the strength of the bond. Contrary to the Town's position, the WAPC agreed and cleared the condition. The Town then constructed the Existing Crossover.
The Town's actions in subsequently constructing the Existing Crossover are not the subject of these reviews. However, having regard to that background, we consider that it was reasonable for the Town to construct the Existing Crossover given that Lot 506 had been created without any form of physical access and without an agreement from the subdivider ensuring performance at some future point.
Of course, these measures will not eliminate all risk. However, we do not regard the risks arising from the Existing Crossover to be unacceptable. In terms of risk, it is also the case, as Mr Kleyweg properly accepted, that there are inherent risks associated with the Proposed Pedestrian Bridge: ts 97, 15 July 2019.
The experts considered, and the Tribunal agrees, that the Proposed Crossover would be safer than the Existing Crossover from a traffic safety perspective. We therefore find that the Proposed Works would ultimately provide an improved outcome when viewed from a traffic and safety perspective (subject to additional excavation and clearing being included to allow vehicles to reverse out of the Proposed Crossover onto Deane Street).
Tribunal's conclusions on Issue 4
While we have found that the Proposed Crossover would be safer from a traffic safety perspective it does not follow that, for that reason, it is axiomatic that the Proposed Works should be approved in the exercise of planning discretion.
Having regard to the range of matters in cl 67 of the deemed provisions, pedestrian and traffic safety are no doubt important considerations. But they are not the only considerations. A range of considerations have to be weighed and balanced in any planning decision.
The Tribunal is particularly concerned about the degree of impact the Proposed Works will have on the existing Deane Street streetscape and amenity.
Balancing the range of considerations set out in cl 67 of the deemed provisions, the Tribunal considers that in this instance the overall impact of the Proposed Works is too significant on the amenity and streetscape of Deane Street to warrant approval. The introduction of a 5.5 metre wide crossover into this is unusual, if not unique, Deane Street environment together with the further excavation and clearing of vegetation in order to provide for sightlines is unacceptable from a streetscape and amenity viewpoint.
Whilst the remaining verge area will be replanted, in our view that replanting cannot restore the verge embankment to reflect that which exists. It is simply impossible to do that because the 5.5 metre wide Proposed Crossover is proposed to sit in the landscape. There is no amount of replanting that can address that 'gap' in the embankment that will result from the Proposed Crossover.
Furthermore, the Proposed Pedestrian Bridge will introduce a further 'foreign' element into this streetscape. It is also the case that the ultimate residential development on Lot 506 will appear in this landscape as the vegetation that existed in the area of the Proposed Crossover cannot be replanted. In the fullness of time a garage door is also likely once development on Lot 506 progresses. Of course, we do not know that nor can we properly evaluate it because of the piecemeal manner in which the applicants have chosen to proceed.
Issue 5: Should approval be granted to the Reg 12 Application, the Reg 17 Application (if applicable) and the Development Application:
(a) having regard to the applicable planning framework; and
(b) consistency with the General Crossover Specifications and Concrete Crossover Specifications?
In addressing what may be regarded as the ultimate issue, it is only necessary for us to determine the Development Application because, as Mr Skinner observed, everything else flows from that determination.
In considering the ultimate issue, we are mindful that consideration of the cl 67 matters does not displace the discretion that it to be exercised in relation to the Proposed Works.
It is also the case that we are required to give 'due regard' to any 'relevant planning considerations' pursuant to s 241(1) of the PD Act. In Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 (Pullin JA, Buss JA and Martin J) (Zampatti) Martin J found that the term 'relevant planning considerations' is a term of broad import: at [121].
As stated, in the context of the PD Act 'due regard' has been interpreted to mean that we must give 'proper, genuine and realistic' consideration to such matters: City of South Perth v ALH at[46].
The term 'due regard', as applied in the context of the PD Act, does not require any particular, or minimum weight, to be given to the cl 67 matters or any other relevant planning consideration. A flexible weighing process, in the sense set out by Mason J in Minister forAboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41], is the applicable (and correct) approach to s 241(1) of the PD Act: Zampatti at [137] (Martin J); Atlas Point Pty Ltd v Western Australian Planning Commission [2014]WASC26 at[114] (SimmondsJ).
It follows that regardless of our findings in relation to each of the cl 67 matters we have discussed in these reasons, there remains discretion to approve the Proposed Works.
Notwithstanding those observations, the applicants' case was premised on the argument that the Proposed Works warranted approval having regard to the cl 67 matters. No submissions were put to the Tribunal that approval should be granted notwithstanding any findings we reached in relation to the cl 67 matters. No other 'relevant planning considerations' were put forward by the applicants pursuant to s 241(1) of the PD Act that were not encompassed by the cl 67 matters.
Ultimately we have found that the Existing Crossover provides for safe vehicle access and pedestrian movement (although there are risks that need to be managed). However, the Existing Crossover better preserves the Deane Street streetscape and amenity. Even if this proceeding were a contest between the two crossovers, our preferred crossover would be the Existing Crossover because, on balance, it better balances the range of planning considerations that arise.
For the reasons we have explained, the Proposed Works are unacceptable from a planning viewpoint. The Deane Street streetscape and amenity which we find to be very attractive and pleasant would be significantly eroded by the Proposed Works.
In our view, there is no planning reason to, in effect, allow the relocation and replacement of the Existing Crossover which was implemented as part of the Subdivision Approval.
We are mindful that the Existing Crossover makes the achievement of a future basement garage more difficult if indeed the applicants intend to pursue that option. However, a desire on the part of the applicants to create for themselves a basement garage is not a relevant planning consideration for the Tribunal.
It is settled law that the personal circumstances or desires of an applicant are generally not relevant planning considerations: Low v Swan Cove at [181]; Russell v State Planning Commission (1984) 53 LGRA 403 at 408-9 (Matheson J); Antunovich and City of Stirling [2011] WASAT 90 at [37].
In Western Australia, questions of hardship can sometimes be taken account of, but not in relation to the Proposed Works: s 241(3) of the PD Act; see also Rigg v Western Australian Planning Commission [2017] WASAT 19; (2017) 90 SR (WA) 384 at [69]-[71]. In any event, inconvenience in creating a basement garage should not be equated with hardship.
The Existing Crossover had been constructed when Lot 506 was transferred to the applicants. Absent any further applications for alternate access, the applicants should expect to access Lot 506 via the Existing Crossover.
For the reasons we have set out, we consider that the Proposed Works are, on balance, contrary to the applicable planning framework and would result in a poor planning outcome. While the Proposed Works may result in crossover that is regarded as safe from a traffic engineering perspective (leaving aside the inherent risks associated with the Proposed Pedestrian Bridge), broader planning considerations such as amenity, streetscape and compatibility weigh heavily against approval.
Because we find that the Proposed Works are unacceptable having regard to the applicable planning framework it is unnecessary for the Tribunal to address the General Crossover Specifications and Concrete Crossover Specifications.
The limitations of a split planning system: a comment on the Subdivision Approval
We are mindful that the jurisdiction we are exercising relates to development and not the Subdivision Approval granted in 2014. Nevertheless, we feel it necessary to observe that the circumstances of this case evince one of the potential shortcomings of the 'split' system of subdivision and development control in Western Australia: Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR(WA) 84 at [60][66]; Bestry Property Group Pty Ltd v WAPC [2019] WASAT 15; 96 SR(WA) 311 at [37].
Western Australia's planning system is unique in that subdivision control rests with the central planning body (the WAPC) and decisions on development are, in large part, left to local governments (or, for more significant developments, Development Assessment Panels). The WAPC makes decisions on subdivisions applications largely in isolation from the ultimate development on the land (aside from where a subdivision condition is imposed under s 148 of the PD Act).
The question of access to Lot 506 that now confronts the applicants and the Town should have been addressed at the time that the Subdivision Approval was granted. The topography of Deane Street is such that vehicular access was always going to be a significant challenge to that land that now comprises Lot 506.
In our view, it is no real answer for the WAPC to grant subdivision approval, impose a condition and then accept a bond as demonstrating sufficient access can be made available at some point in the future. This dispute over access requires resolution now because it was not adequately addressed at the time of the clearance of conditions relating to the Subdivision Approval.
As a matter of orderly and proper planning, we consider that it is an issue that should have been resolved before Lot 506 was formally created.
Conclusion
For these reasons, the Tribunal finds that the correct and preferable decision is to:
(a)affirm the Town's decision to refuse the Development Application;
(b)affirm the Town's decision to refuse the Reg 12 Application; and
(c)make no determination on the Reg 17 application.
Order
1.The applications for review in proceedings DR 206 of 2018, DR 212 of 2017 and CC 1772 of 2018 are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, MEMBER
29 OCTOBER 2019
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