TAYLOR and WESTERN AUSTRALIAN PLANNING COMMISSION

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

CITATION:   TAYLOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2023] WASAT 16

MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT

DR S WILLEY, SENIOR MEMBER

HEARD:   12 DECEMBER 2022

DELIVERED          :   13 MARCH 2023

FILE NO/S:   DR 174 of 2021

BETWEEN:   IAN HARRY TAYLOR

First Applicant

JULIE TAYLOR

Second Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent


Catchwords:

Town planning – Application for subdivision – Preliminary issue – Whether approval of lots smaller by more than 5% than average and minimum lot sizes prescribed by the R-Codes, which are incorporated into a local planning scheme, would be inconsistent with the scheme – Statutory construction of R-Codes

Legislation:

City of Melville Local Planning Scheme No 6, cl 25, cl 25(1), cl 26, cl 26(1), cl 27, Pt 4, cl 32
Interpretation Act 1984 (WA), s 32(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 1
Planning and Development Act 2005 (WA), s 3(1)(c), s 4, s 4(1), s 74(2)(b), s 77, s 77(1)(a), s 77(1)(b), s 77(2), s 77(2)(a), s 77(2)(b), s 87(4), s 135, s 138(1), s 138(2), s 138(3), s 141, s 142, s 145(1), s 145(4), s 146, s 157, s 164A, s 237A, s 239, s 241, s 241(1)(a), Div 1, Div 2, Pt 3, Pt 4, Pt 5, Pt 10, Div 3
Planning and Environment Act 1989 (VIC), s 3
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 1.1, cl 1.2, cl 1.3, cl 1.4, cl 2.1.2, cl 2.1.3, cl 2.1.4, cl 2.2.1, cl 2.2.2, cl 2.4, cl 2.5.1, cl 2.5.2, cl 2.5.3, cl 2.5.4, cl 3.1, cl 5.1.1, Pt 1, Pt 2, Pt 3, Pt 5, Table 1, Appendix 1
Strata Titles Act 1985 (WA), s 17
Transfer of Land Act 1893, s 166

Result:

The preliminary question posed is to be answered in the negative

Category:    B

Representation:

Counsel:

First Applicant : Mr M Flint
Second Applicant : Mr M Flint
Respondent : MR I A Repper

Solicitors:

First Applicant : Flint Legal
Second Applicant : Flint Legal
Respondent : State Solicitor's Office

Cases referred to in decision:

Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38; (2018) 237 LGERA 333
Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223
Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111
Bormolini and Western Australian Planning Commission [2014] WASAT 121; (2014) 86 SR (WA) 159
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Boynton and Western Australian Planning Commission [2018] WASAT 60
Cheema and Western Australian Planning Commission [2014] WASAT 104
Costa v Shire of Swan [1983] WAR 22; (1982) 52 LGRA 145
Dumbleton & Anor and Town of Bassendean [2005] WASAT 145
Fernandez v State of New South Wales [2019] NSWSC 1736
Goyder and Walsh [2009] WASAT 108; (2009) 64 SR (WA) 251
Hill…

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Details
Case
[2023] WASAT 16
Decision Date

CaseChat Overview and Summary

Taylor and the Western Australian Planning Commission appeared before the court in a dispute regarding an application for subdivision. The central issue was whether the approval of lots smaller by more than 5% than the average and minimum lot sizes prescribed by the R-Codes, which are incorporated into a local planning scheme, would be inconsistent with the scheme. The court had to determine the correct interpretation of the relevant statutory provisions and whether the R-Codes could be varied to allow for lots smaller than the prescribed minimum and average sizes.

The court examined the provisions of the R-Codes, specifically Clause 2.5.3 and Clause 5.1.1, to ascertain whether they permitted variation in the minimum and average site areas specified in Table 1. Clause 2.5.3 stipulated that the decision-maker shall not vary the minimum or average site area per dwelling requirements, whereas Clause 5.1.1 allowed for certain variations under specific conditions. The court also considered the explanatory guidance provided in the R-Codes and the Explanatory Guidelines to interpret these clauses correctly. The design principles outlined in the R-Codes further specified that the respondent could approve lots of lesser area than specified in Table 1, provided the variation was no more than five per cent less in area.

After reviewing the statutory provisions and explanatory materials, the court concluded that Clause 2.5.3 and Clause 5.1.1 did not permit the approval of lots that were smaller by more than 5% than the minimum and average lot sizes specified in Table 1. The design principles and the explanatory guidance reinforced this interpretation, indicating that any variation must adhere strictly to the five per cent rule. The court found that the approval of lots smaller by more than 5% would indeed be inconsistent with the R-Codes and the local planning scheme. Consequently, the court ruled in favour of the Planning Commission, affirming that such approval would not be consistent with the scheme.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Clause 2.5.3, to which cl 2.5.1 is subject, provides that 'the decision‑maker shall not vary the minimum or average site area per dwelling requirements set out in Table 1'. Clause 5.1.1 of the R-Codes relates to the 'Site area' of a lot the subject of a 'proposal'/ 'development approval' application. The DTC provisions of cl 5.1.1 follow a 'Note' as follows:Note: The minimum and average site areas stipulated in Table 1 are not subject to variation except as set out in clause 5.1.1 below. That appears to be a reference to, or perhaps more accurately, mirror or replicate, the provisions of cl 2.5.3 set out above. The following are the (relevant) DTC provisions for cl 5.1.1 'Site area':C1.1Development which complies with the dwelling type and site area requirements set out in Table 1 and the following provisions.C1.2 …C1.3 …C1.4 Subject to clause 5.1.1 C1.3 only, the following variations to the minimum and average site area set out in Table 1 may be made:…ii.in the case of a single house, grouped dwelling or multiple dwelling the area of a lot, survey strata lot or strata lot approved by the [respondent];… Table 1 provides that the minimum and average site area per dwelling for R15 land is 580m2 and 666m2 respectively. The design principles for cl 5.1.1 are as follows:P1.1 Development of the type and density indicated by the density code designated in the scheme.P1.2 The [respondent] may approve the creation of a lot, survey strata lot or strata lot of a lesser minimum and/ or average site area than that specified in Table 1, and the [respondent] in consultation with the local government may approve the creation of a survey strata lot or strata lot for a single house or a grouped dwelling of a lesser minimum site area than that specified in Table 1 provided that the proposed variation would be no more than five per cent less in area than that specified in Table 1 and:[17] The version of the 2002 R-Codes contained extensive explanatory guidance material in section 1 of that document. In 2013, much of that material was removed and placed in a separate Explanatory Guidelines document. Since then, changes have been made to both the R-Codes and the Explanatory Guidelines. As is noted below, on the question raised by the preliminary issue, the current iteration of the Explanatory Guidelines contains two opposing statements. Section 1 of the Explanatory Guidelines relevantly provide as follows:The purpose of these guidelines is to explain and assist interpretation and application of the R-Codes Volume 1.The R-Codes are introduced by reference into a scheme and it is a requirement for all residential development to comply with the R‑Codes. The guidelines are designed to be read with the R‑Codes Volume 1 provisions to provide clarification and to guide proponents, decision-makers and other relevant stakeholders regarding the design, assessment and implementation of residential development in Western Australia.Together with other state planning policies and [the respondent's] operational (development control) policies, the R-Codes also guide the assessment of residential subdivision proposals by the [respondent] although they are not intended to prescribe subdivision design and standards.[19]…[19] Underlining added.

Ratio Decidendi

Legal Principle Established

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