TAYLOR and WESTERN AUSTRALIAN PLANNING COMMISSION - [2023] WASAT 16

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 and Western Australian Planning Commission [2013] WASAT 195
Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178; (2018) 98 NSWLR 526
Kakulas and City of Stirling [2013] WASAT 168
Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Lee and Western Australian Planning Commission [2008] WASAT 100
Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160
Re Shire of Mundaring; ex parte Solomon & Ors [2007] WASCA 132
Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89
Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152; (2020) 103 NSWLR 568
Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196; (2018) 233 LGRA 299
University of Western Australia v City of Subiaco ; [1980] WASC 28; (1980) 52 LGRA 360
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Western Australian Planning Commission and Diggins [2008] WASAT 9

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicants own land at 46 Ardross Street, Applecross (Land).
By application dated 29 April 2021, they applied for permission to subdivide the Land into two lots by way of a survey strata scheme.[1]
[1] Agreed Section 24 Bundle dated 21 February 2022 (Agreed Bundle), pages 6 – 30.
The respondent refused the application for reasons that include that 'the proposed lots do not meet the minimum or average site area requirements for the R15 density code'.[2]
[2] Agreed Bundle, pages 4 – 5.
The parties agree that the proposed lots do not meet the minimum or average site area requirements for the R15 density code as provided by the R‑Codes.
The question is whether that fact and s 138(2) of the Planning and Development Act 2005 (WA) (PD Act)[3] means that the respondent was (and the Tribunal on review is) required to refuse the application.
[3] Unless otherwise stated, all sections referred to are sections of the PD Act.

Overview of the issue, the statutory provisions and the parties' positions

The Land is located within the City of Melville (City) and is subject to the City's Local Planning Scheme No. 6 (LPS6 or Scheme).
Clause 25 of LPS6 provides that the R-Codes, as modified by cl 26, 'are to be read as part of this Scheme.'
That is permitted by s 77, which allows (but does not mandate) a local government, in preparing or modifying a local planning scheme, to 'include in the scheme a provision that a specified State planning policy, with such modifications as may be set out in the scheme, is to be read as part of the scheme …'
The R-Codes are properly described as State Planning Policy 7.3 – Residential Design Codes Volumes 1 and 2.
The parties agree, and we so find, that the R-Codes are a State planning policy (SPP) made pursuant to Part 3 of the PD Act and that, pursuant to s 77, the City is entitled to incorporate them into the Scheme and has in fact has done so by cl 25.
It will be necessary to set out the various relevant provisions of the R‑Codes in more detail below. For present purposes, however, it is sufficient to note that:
(a)the deemed‑to‑comply provisions of cl 5.1.1 require compliance with Table 1 which provides for average and minimum site areas for certain types of development on land with various different R-Codings;
(b)Table 1 provides that for single houses or grouped dwellings on land with an R-Code of R15 the minimum site area is 580m² and the average site area is 666m²; and
(c)the design principles for cl 5.1.1 provides, amongst other things, that the respondent may approve the creation of a lot, survey strata or strata lot of a lesser minimum and/ or average site area than that specified in Table 1 provided that the variation is no more than 5% less in area than that specified in Table 1.
The proposed subdivision would, if approved, create two lots of 539m² (Lot 1) and 440m² (Lot 2) with common property of 93m². The total area of 1072m²means that the average site area for two lots is 536m².
Each lot is therefore, more than 5% smaller than each of the minimum size (580m²) and the average size (666m²) provided for by Table 1.
Section 138(2) of the PD Act provides as follows:
Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.[4]
[4] Section 138(3) sets out several exceptions to the rule in s 138(2) that the respondent is not to approve subdivision that conflicts with the provisions of a local planning scheme. The preliminary issue does not extend to a consideration of those exceptions. That is due to the status of the proceedings as a Class 1 matter. The parties have agreed that, if we decide that subdivisional approval would 'conflict' with the provisions of the Scheme, the matter will go to a hearing as to, amongst other things, one or more of the exceptions under s 182(3) applies. That hearing will proceed without the benefit of legal representation. The Tribunal's approach, therefore, is consistent with the principle that, ordinarily, Class 1 matters ought not to involve legal representation unless it involves a question of law or the matter raises complex or significant planning issues: s 237A & s 239.
The respondent refused to approve the proposed subdivision and the applicant seeks the Tribunal's review of that refusal. By order made 25 February 2022, the following was identified as a preliminary issue:
Whether approval of the application for subdivision would conflict with the provisions of the … [Scheme] for the purposes of s 138(2) …
The respondent submits that:
(a)the R-Codes have been incorporated into, and form part of, the Scheme;
(b)the proposed subdivision is inconsistent with, and therefore in conflict with, the R-Codes; and
(c)the proposed subdivision is therefore impermissible.
The applicant acknowledges and agrees that the R-Codes have been incorporated into, and form part of, the Scheme but submits that:
(a)the incorporation of the R-Codes by cl 25 of the Scheme is limited in its scope to the concept of 'development', which does not include subdivision; and
(b)in any event, the R-Codes are concerned with development, which (again) does not include subdivision. That is, to the extent that cl 5.1.1 of the R‑Codes is concerned with the respondent's role in approving subdivisions, the clause is for guidance only.

The agreed facts

There are no factual issues in contest that inform the preliminary issue. The following facts are agreed as between the parties and we find as follows.
The Land is formally identified as Lot 518 (No. 46) Ardross Street, Applecross on Plan 1751, Certificate of Title 1522/289 and has an area of 1072.86m².
A single dwelling has existed on the Land since at least 1953.
The Land contains an existing two storey brick and tile single dwelling. At the rear of the dwelling exists a detached garage/ carport and area of private open space containing several mature trees between 1 – 3m in height.
The Land has frontage to Ardross Street and is accessed by a single crossover to that road.
The Land was subject to a previous survey strata subdivision application for two lots, which was approved by the respondent in 1999 under the then applicable scheme, which assigned an R17.5 density coding to the Land and immediately surrounding lots.
The 1999 approval was not acted on and lapsed in October 2002.
The boundaries of the approved 1999 subdivision generally reflect those shown on the proposed subdivision.
The Land is surrounded on all sides by land that has all been subdivided and/or developed from the original parent lot size of 1072m².
The Land is also adjacent to two of three lots on the western side of Ardross Street that have been subdivided and/or developed from the original parent lot size of 1072m².

The proposed subdivision

The proposed subdivision would, if approved, create two lots and common property:
(a)proposed Lot 1 will front Ardross Street and will retain the existing dwelling; and
(b)proposed Lot 2 is located behind and to the north east of Lot 1 and will be accessed via the common property access leg which will run along Lot 1's northern boundary.
At an average site area of 536m², the variation from the average lot size (666m²) for R15 coded land is almost 20%. The variation from the minimum lot (580m²) size for Lot 1 (539m²) exceeds 7%. For Lot 2 (440m²), the variation exceeds 24%. The proposed subdivision therefore involves a variation of greater than 5% to the average and minimum lot sizes set out in the RCodes.
For the purposes of consultation under s 142, the City recommended the proposed subdivision be refused due to the failure to meet the requirements of the R-Codes and the requirements and objectives of the respondent's Development Control Policy 2.2 – Residential Subdivision.
On 5 August 2021, the respondent refused the proposed subdivision for the following reasons:
a)The proposed subdivision does not comply with the objectives or provisions of the Western Australian Planning Commission's State Planning Policy 3.1 – Residential Design Codes and Development Control Policy 2.2 – Residential Subdivision, or the City of Melville Local Planning Scheme No. 6, because:
(a)the proposed lots do not meet the minimum or average site area requirements for the R15 density code; and
(b)the width of the proposed common property access leg is insufficient.
b)The proposed subdivision is inconsistent with the Western Australian Planning Commission's Development Control Policy 1.1 – Subdivision of Land – General Principles and Development Control Policy 2.2 – Residential Subdivision, because it would result in a form of development that:
(a)would prejudice the objectives of the local planning framework;
(b)does not respond to the current planning context; and
(c)will not be consistent with the long-term character intended for the area.
c)Approval of the subdivision would set an undesirable precedent for the subdivision of other lots of a similar size and configuration in this locality, would undermine the objectives and provisions of the City of Melville Local Planning Scheme No. 6 and facilitate development out of keeping with the local context and desired future character of the area.

Procedural History

Following the refusal, the applicant sought review of that decision by an application lodged in the Tribunal on 20 August 2021.
By an order made 25 February 2022, the following was identified as a preliminary issue:
Whether approval of the application for subdivision would conflict with the provisions of the … [Scheme] for the purposes of s 138(2) …
Contemporaneous orders also listed the preliminary issue to be determined 'entirely on the documents' on the basis of written submissions to be filed by the parties.
The respondent filed written submissions on 18 March 2022. The applicant filed written submissions on 3 June 2022. The respondent filed responsive written submissions on 10 June 2022.
Having considered the parties written submissions and the issues arising, and in light of both the difficulties involved in the proper construction of the R-Codes and the breadth of the likely consequences of the determination, the Tribunal identified several matters about which it sought further submissions and the preliminary issue was listed for oral hearing on 12 December 2022.

The statutory regime

In dealing with the preliminary issue, it is unnecessary for us to traverse the applicable planning framework in close detail. The question before us is one of statutory construction. In order to resolve the preliminary issue, we will need to consider, primarily, the PD Act, LPS6 and the R‑Codes.

Strata Titles Act 1985 (WA)

In addition, it is necessary to have regard to the Strata Titles Act 1985 (WA) (STA) because, as noted above, the proposed subdivision is a survey strata subdivision.
Thankfully, that task can be completed quickly. Section 17(1) of the STA provides that each of Div 1, Div 2 (aside from s 141) and Div 3 of Pt 10 of the PD Act apply to the subdivision of land by a survey-strata scheme. Section 17(3) of the STA provides that registration of the scheme plan can only occur if the respondent's approval of it (the scheme plan) is unconditional.

PD Act

Two Parts of the PD Act have relevance to the preliminary issue – Parts 5 and 10.
Part 5 of the PD Act deals with local planning schemes.
Section 77(1)(a) provides that local governments are to, when preparing or amending a local planning scheme, have due regard to any SPP affecting its district.
As we have stated, s 77(1)(b) provides that a local government, when preparing or amending a local planning scheme, 'may include in the scheme a provision that a specified [SPP], with such modifications as may be set out in the scheme, is to be read as part of the scheme …'
Where a local planning scheme includes a provision pursuant to s 77(1)(b), s 77(2) provides that:
(a)the scheme is to have effect as if the [SPP], as from time to time amended, or any subsequent policy by which it is repealed under [the PD Act], were set out in full in the scheme; and
(b)the [SPP] is to have effect as part of the scheme subject to any modifications set out in the scheme.
Section 87(4) provides that a local planning scheme, once gazetted, has 'full force and effect as if it were enacted by the [PD Act]'. That is, a gazetted scheme (assuming that it 'can properly be described' as such) 'has the force of law as if it were enacted within' the PD Act.[5]
[5] Costa v Shire of Swan [1983] WAR 22; (1982) 52 LGRA 145 (Costa) at [29].
Part 10 of the PD Act is headed 'Subdivision and development control'.
Section 135 provides that a person is not to subdivide or amalgamate a lot without the approval of the WAPC.
As the Court of Appeal has noted, the process of subdivision occurs in three stages.[6]
[6] Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196; (2018) 233 LGRA 299 (Stream Focus), at [2] – [4].
At the first stage, the respondent may give its approval to the subdivision of lots 'subject to conditions which are to be carried out before the approval becomes effective'.[7]
[7] PD Act, s 138(1).
It does so by endorsing its approval on a plan of subdivision subject to conditions specified in a written approval. The respondent's determination (i.e. whether to approve the application for subdivision and, if so, on what conditions if any) is made following consultation under s 142 with the relevant local government and any relevant public authority or utility services provider. Any subdivisional conditions imposed are conditions precedent.
The second stage involves the developer carrying out the works that are necessary to satisfy the subdivisional conditions. In doing so, s 157 provides that, unless the respondent expressly provides otherwise, the developer is taken to have approval under a relevant planning scheme for the carrying out of necessary works required by the conditions.[8]
[8] Stream Focus at [3].
If the respondent is satisfied that the applicant has complied with the subdivisional conditions, or that they will be complied with at the time a certificate of title is created or registered, it will endorse its approval on a diagram or plan of survey.[9] Once that has occurred, the Registrar of Titles may create or register a new title for the new lots.[10] That is the third stage of the process.
[9] PD Act, s 145(4).
[10] PD Act, s 146 and Transfer of Land Act 1893, s 166.
The preliminary issue is concerned with the first stage of the subdivisional process.
Section 138(2) provides that in giving its approval under s 135, the respondent is to have due regard to the provisions of a local planning scheme that applies to the land under consideration and, subject to s 138(3), 'is not to give an approval that conflicts with the provisions of a local planning scheme'.

The Scheme/LPS6

Under LPS6, the Land is zoned 'Residential' with a density code of R15.
Part 4 of LPS6 is headed 'General development requirements'.
Clause 25(1) of LPS6 is located within Part 4 and is in the following terms:
The R-Codes, modified as set out in clause 26, are to be read as part of this Scheme.
Clause 26 of LPS6 (which is also located within Pt 4) provides for the modification of the R-Codes in three circumstances, none of which are directly relevant here, although cl 26(1) deals with subdivision and each party refers to it in their submissions. It provides as follows:
Where on the Scheme Maps, an area is identified as having two density codes in the form of a split R-Code, when considering an application for development approval, or when making a recommendation to the [respondent] in respect of subdivision, the local government is to apply the lower of the two R-Codes…'[11]
[11] Underlining added.

We note also, for completeness, that by cl 27 of the Scheme, SPP 3.6 – Infrastructure Contributions, as modified by cl 27, is also 'to be read as part of' the Scheme.
As noted above, s 87(4) provides that a gazetted scheme has the force of law as if it were enacted within the PD Act. Notwithstanding that provision, the construction of planning schemes is subject to principles that reflect its provenance. So, as her Honour President Pritchard said in Newco Mills:[12]
[31]The construction of a local planning scheme, which constitutes subsidiary legislation, involves determining the objective meaning of the terms used, by the application of recognised rules of interpretation to the text, understood as a whole and in its context. The meaning must emerge from the statutory text, understood in its context, but also having regard to the statutory purpose being pursued.
[32]It is well established that planning schemes should be construed broadly rather than pedantically, and with a sensible practical approach. That approach recognises that planning schemes are not usually drafted by parliamentary counsel and are often expressed in terms which lack the precision of a statute. That approach also recognises that the terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners, to identify the permissible uses of land to which a scheme applies. For that reason, the Court of Appeal has cautioned against placing a counter-intuitive judicial gloss on the plain language of planning schemes because to do so would reduce the capacity of the range of persons who use such schemes to comprehend their meaning. Nevertheless, the exercise of construction remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which, and purpose for which, it was enacted.[13]

R-Codes[14]

[12] Newco Mills Pty Ltd and Presiding Member of the Metro Outer Joint Development Assessment Panel [2021] WASAT 160 (Newco Mills).

[13] Newco Mills at [31] – [32]. Internal citations omitted. See also 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 (Australian Unity); at [77] and [82] – [84] (Buss P, Murphy JA and Mitchell JA); Re Shire ofMundaring; ex parte Solomon & Ors [2007] WASCA 132 at [25] (Steytler P, McLure JA and Pullin JA).

[14] At all relevant times, in relation to this application, the gazetted version of the R-Codes has been the 2021 version, incorporating amendments gazetted on 2 July 2021. Shortly before these reasons were finalised, a further version of the R-Codes was released, subject to a note indicating that they will not be gazetted until 1 September 2023. While the layout of the R-Codes will change under the new version, with consequential changes to the relevant clause numbers, there does not appear to be any material change to the relevant text of the R-Codes and we do not, therefore, refer to the 2023 version in any further detail.

As noted above, the R-Codes are an SPP made by the Governor pursuant to Pt 3 of the PD Act.[15]
[15] R-Codes, cl 1.1.
Clause 1.2 of the R-Codes states that the purpose of the R‑Codes is to 'provide a comprehensive basis for the control of residential development throughout Western Australia'.[16] Equally, cl 1.4 provides that the R-Codes 'apply to all residential development throughout Western Australia'.
[16] Bold text in the original. The use of bold text in the R-Codes indicates that the bolded term is defined in the Appendix; see cl 1.4.
'residential development' is defined in Appendix 1 of the R‑Codes as:
Development of permanent accommodation for people, and may include all dwellings, the residential component of mixed-use development, and residential buildings proposing permanent accommodation.
The term 'development' is defined in Appendix 1 as 'defined under the [PD Act]' which, at s 4 of the PD Act, is as follows:
development means the development or use of any land, including —
(a) any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b) the carrying out on the land of any excavation or other works;
(c) in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies …
It is convenient here to note three matters. First, the PD Act definition of 'development' is inclusive and, therefore, not exhaustive. Secondly, in contrast to other Australian jurisdictions, the definition of development in the PD Act does not expressly include subdivision. This is a matter returned to in more detail below. Thirdly, the PD Act includes a separate definition of 'subdivision', which is also inclusive and only includes 'amalgamation'.
Returning to the R-Codes, cl 1.3 sets out the general objectives of the R-Codes.
Part 2 of the R-Codes is headed 'R-Codes Volume 1 approval process'.
Clause 2.1.2 provides that where 'development approval is required under a scheme a development application shall be lodged with the relevant decision-maker for assessment and making a determination.'
'decision-maker', is defined in Appendix 1 as:
That body, organisation or authorised person legally vested with the power to make decisions, pursuant to relevant legislation, in respect of residential development in accordance with the RCodes.
It is necessary to note the primacy of 'residential development' to the definition of 'decision maker' which, again, requires consideration of the scope of the defined term 'development'.
Also in Part 2 of the R-Codes is cl 2.5.3 which provides:
The decision-maker shall not vary the minimum or average site area per dwelling requirements set out in Table 1 (except as provided in the R-Codes Volume 1 or the scheme).
Part 3 of the R-Codes is headed 'Accompanying information'. Clause 3.1 is headed 'Applications for development approval' with the remainder of Pt 3 setting out detailed information that must be provided by applicants.
We pause here to note that, while various provisions within Pt 2 and Pt 3 of the R-Codes (cl 2.1.2, cl 2.1.3, cl 3.1) refer to 'development approval' processes and decision-making, others refer to 'proposals' for residential development (cl 2.2.1, cl 2.2.2, cl 2.4, cl 2.5.1, cl 2.5.2), with the term 'proposal' being undefined.
Part 5 of the R-Codes sets out the design elements that apply to the relevant development, being the subject of the 'proposal'/ 'development approval' process.
The Pt 5 provisions are divided into five subheadings, namely: 5.1 Context; 5.2 Streetscape; 5.3 Site planning and design; 5.4 Building design; and 5.5 Special purpose dwellings.
Each subheading is followed by text which contains relevant objectives and a table, which sets out the 'deemed-to-comply' requirements (DTC) and 'design principles'.
If a DTC requirement is satisfied, there is no requirement for the decision-maker to look to the design principles: see cl 2.1.4 and cl 2.5.4.
Clause 2.5.1 provides that, if a DTC requirement is not satisfied, then:
Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes Volume 1.
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 580m²and 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]

- …

R-Codes Explanatory Guidelines[18]

[17] Clause P1.2 is in two parts or limbs. The first grants power to the respondent to approve the creation of a (smaller) 'lot, survey strata lot or strata lot'. There is no requirement for consultation with the relevant local government. By contrast, the second limb grants power to the respondent to approve a (smaller) lot but only in relation to a 'survey strata lot or a strata lot', not in relation to a 'lot'. In addition, the second limb requires the respondent to act 'in consultation with' the local government. There is, plainly, very considerable overlap between the two limbs, without any explanation as to when one limb is to apply, rather than the other. Neither party was able to provide any material assistance in this regard when the issue was raised at the oral hearing and an opportunity was provided for the filing of further written submissions. Given our ultimate decision and the basis for it, we are of the view that it is not necessary to address the issue any further. We note further that the overlap is removed by the 2023 version of the R-Codes, which effectively deletes the first limb.

[18] A new version of the Explanatory Guidelines has been released to accompany the 2023 version of the R‑Codes. Given the 2023 R-Codes are not yet gazetted, what follows is limited to the version of the Explanatory Guidelines that concern the 2021 version of the R-Codes.

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.
Section 4 of the Explanatory Guidelines includes explanations of various design elements of the R-Codes. Relevantly, section 4.5 of the Explanatory Guidelines is concerned with Site area.
Under the heading 'Variations to minimum and average site area requirements', section 4.5 of the Explanatory Guidelines says:
The minimum and average site areas for single houses and grouped dwellings stipulated in table 1 may not be varied, except where an application for subdivision approval is made to the [respondent] and the application satisfies certain criteria, clause 5.1.1 P1.2 of the R‑Codes Volume 1, provides for a maximum lot size variation of 5 per cent to be considered. This provides some flexibility to accommodate minor reductions to minimum and average site areas while providing a maximum of 5 per cent to make clear that flexibility is limited. The subdivision of land is also subject to other WAPC policies …[20]
[20] Underlining added.
Under the heading Land title implications, the Explanatory Guidelines state that:
There are several implications as to the use of the R-Codes Volume 1 in the subdivision process:
– The minimum site area requirements under 5.1.1 of the R-Codes Volume 1 are intended to be guidelines for the [respondent] in considering subdivision applications.
–The R-Codes Volume 1, as a consequence, include a provision which permits the approval for development on any green title lot, strata lot or survey strata lot previously approved by the [respondent] even when the lot does not meet the minimum site area or frontage … [21]
[21] Underlining added.
The underlined passages, in our view, provide opposing perspectives as to the effect of the 5% limit in cl 5.1.1 P1.2 of the R‑Codes. The passage in section 1 and the latter passage in section 4 describes the 5% limit as a guideline while the earlier passage from section 4 appears to suggest that the 5% limit cannot be exceeded.
Landpark[22] was determined in 2007, when the 2002 R‑Codes were in force. As noted above, the above passages were at that stage contained in the R-Codes themselves. At para 24, the Tribunal in Landpark said that:
The absence of conflict between approval of a subdivision application that proposes allotments with areas less than that contemplated by the residential density code that applies to the land under a local planning scheme and the scheme is recognised in the Codes.
[22] Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark), at [24] – [28].
That statement was then followed by the passage quoted above which starts '[t]here are several implications …'
The 2002 iteration of the R-Codes did not include a passage equivalent to that quoted above from the current version of the Explanatory Guidelines which appears to suggest that the 5% limit on variations cannot be exceeded. The Tribunal in Landpark did not, therefore, have to address the apparent inconsistency. Indeed, the Tribunal did not address the 5% limit on variations at all, notwithstanding that the 2002 R-Codes contained (at cl 3.1.3) a provision which was, in location and text, very similar to cl 5.1.1 P1.2.
We will address Landpark in more detail below because the applicant relied upon it and, while the respondent did not seek to 'reopen' the decision, it sought to distinguish it on the basis of differences in both the scheme text and the text of the R-Codes.[23]
[23] Respondent's Submissions on Preliminary Issue dated 18 March 2022 (Respondent's Submissions), para 11 and paras 96 – 101.

Respondent's submissions on the preliminary issue

The respondent's submissions are, effectively, in three parts.

Cl 5.1.1 of the R-Codes is concerned with the exercise of subdivisional power by the Respondent

The respondent submits that the design principles P1.2 and P1.3 of cl 5.1.1 are unambiguously directed to the exercise by the respondent of its powers of subdivision.[24]
[24] Respondent's Submissions, para 70.
That is, the respondent submits that those parts of cl 5.1.1 of the R‑Codes are not addressed to the exercise by a local government, Development Assessment Panels (DAPs) or similar of its functions to determine applications for development approval but to the respondent's functions under Div's 2–4 of Part 10 of the PD Act.
In support of that submission, the respondent also relies on other provisions of the R-Codes, including that of cl 2.5.3 which, as noted above, provides that the minimum or average site area per dwelling requirements of Table 1 cannot be varied by the relevant decision maker except in accordance with the R-Codes and the scheme.[25]
[25] Respondent's Submissions, para 77.
The respondent also submits that the R-Codes, when read as a whole support this first proposition.[26] With respect, this part of the respondent's written submissions is not easy to follow. It starts with an acknowledgment that 'the R-Codes are generally addressed towards the control of residential development' in circumstances where the respondent has previously submitted that '"development" does not include subdivision.'[27] But the respondent then notes that there is an 'inextricable link between subdivision and development standards'[28] such that:
(a)a site area that has been approved by the respondent will satisfy the DTC provisions of cl 5.1.1; and
(b)the respondent is therefore required, in considering an application for subdivision, to have regard to the expectation that development of residential land with a certain R-Coding will require lots of not less than the minimum lot size and the respondent will 'not, therefore, generally approve an allotment of a lesser size …'[29]
[26] Respondent's Submissions, paras 80 – 89.
[27] Respondent's Submissions, para 14.
[28] Respondent's Submissions, para 81 citing Landpark at [28].
[29] Landpark at [28].
With respect, the balance of this aspect of the first limb of the respondent's submission appears to be more accurately described as an attempt to overcome the respondent's initial acknowledgement that the R-Codes are, primarily addressed towards residential development, which term the respondent submits does not include subdivision.

The Terms of cl 5.1.1 Limit the Respondent's Power to Vary Minimum and Average Lot Sizes

The respondent submits that by the terms of cl 5.1.1 of the R‑Codes it (the respondent) is not permitted to vary the minimum and average lot size by more than 5 per cent. That is, the respondent submits that the express terms of P1.2 of cl 5.1.1 impose an absolute limit on the scope of the respondent's discretion to vary.[30]

Section 77 and cl 25 of LPS6 Prevent Departure from the Terms of cl 5.1.1

[30] Respondent's Submissions, paras 71 – 74.

The respondent submits that nothing outside the R-Codes permits it (the respondent, and, therefore, the Tribunal on review) to 'depart from' the terms of P1.2 of cl 5.1.1 of the R-Codes. That is because:
(a)to do so would involve a conflict between any approval and the terms of the Scheme, which by s 77 and cl 25 of LPS6 include the R‑Codes; and
(b)such a conflict is prohibited by s 138(2).[31]
[31] Respondent's Submissions, paras 71 – 76.
There are at least four aspects to this submission.
Firstly, the respondent says that the effect of s 77(1)(b) of the PD Act is to elevate a SPP (such as the R-Codes) beyond its status as 'just' a policy.
In that regard it is said that, absent s 77 of the PD Act, the R‑Codes, as an SPP, 'would in any event weigh heavily in the exercise of the discretion of the planning decision‑maker who is to give them due regard.' On that basis, it is said that s 77 and cl 25 'elevate the R‑Codes to something more than a document of "due regard" into one of legislative effect.'^[32]
[32] Respondent's Submissions, para 116.

The respondent accordingly submits that a statement in Baker Investments[33] should not be followed. The statement (at para 127) was as follows:
After all, any policy (even a SPP) which is incorporated into a town planning scheme remains just that, policy, and therefore by definition as the Tribunal said in Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111, at [23]:
… provides a guideline of the principles that the respondent [or this Tribunal] can be expected to apply when making decisions[;]… it does not provide a binding set of principles that must be applied in all cases: …[34]
[33] Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115; (2016) 90 SR (WA) 223 (Baker Investments).
[34] Emphasis in original.
In Baker Investments the R-Codes had been incorporated into the relevant scheme by cl 19(1) which provided that the R-Codes 'are to be read as part of [the scheme]' which was said to be reflected in the terms of cl 25 of the Model Provisions; i.e. in the terms of cl 25 of the Scheme in this case.[35]
[35] Baker Investments at [121].
The Tribunal in Baker Investments relied on three cases in its reasons on this point and the respondent addressed each of them in its written submissions.
As the respondent notes, two of them – Bookara[36] and Kakulas[37] – did not involve the incorporation of policy into a scheme pursuant to s 77 of the PD Act. On that basis the respondent submits that they cannot support the proposition in question contained in Baker Investments.[38]
[36] Bookara Holdings Pty Ltd and Western Australian Planning Commission [2015] WASAT 111 (Bookara).
[37] Kakulas and City of Stirling [2013] WASAT 168 (Kakulas).
[38] Respondent's Submissions, paras 107 – 109.
The third case relied upon in Baker Investments was Dumbleton.[39]
[39] Dumbleton & Anor and Town of Bassendean [2005] WASAT 145 (Dumbleton).
In that case cl 3.3.2(d) of the relevant scheme provided that:
Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the [R-Codes] shall conform to the provisions of those codes.[40]
[40] Dumbleton at [13].
The Tribunal in Dumbleton held that cl 3.3.2(d) did not have the effect of mandating approval of an application that satisfied the provisions of the R-Codes.[41]
[41] Dumbleton at [20] – [23].
In Baker Investments the Tribunal held that that conclusion (i.e. the conclusion in Dumbleton) was underpinned 'in large measure' by the status of the R-Codes as a 'policy'.[42] The respondent's submissions reject that contention. The respondent submits that the reasons in Dumbleton were silent as to the R-Codes status as 'policy'.[43]
[42] Baker Investments at [127].
[43] Respondent's Submissions, para 114.
Finally, the respondent submits that the Tribunal's reliance on s 241(1)(a) to support its conclusion in Baker Investments is flawed. At para [128] the Tribunal in Baker Investments said as follows:
… s 241(1)(a) of the PD Act enjoins the Tribunal 'to have due regard to relevant planning considerations' including 'any State planning policy which may affect the subject matter of the application'. Arguably, such a provision would have been largely unnecessary if SPPs were to be given the elevated, self-executing status that the applicant argued for here.
The respondent submits that such reasoning does not follow for two reasons:
(1) it wrongly assumes that s 77(2) of the PD Act will necessarily have the result that all SPPs are incorporated into the relevant scheme when, in fact, the section merely empowers a local government to incorporate into the scheme those SPPs it selects for the purpose; and
(2) s 241(1)(a) merely provides for additional matters to which the Tribunal must have regard in exercising its discretion; it does not detract from or limit any express provision of a scheme that imposes a constraint on the power to approve an application.
Secondly, the respondent (in apparent anticipation of an argument relied upon by the applicant) submits that the heading to Part 4 of the Scheme – 'General development requirements' – ought not to be understood as precluding subdivision from the provisions of the R‑Codes as incorporated into the Scheme by cl 25.[44]
[44] Respondent's Submissions, para 92.
Thirdly, the respondent submits that the terms of cl 25 and cl 26 of the Scheme do not limit the scope of the application of the R-Codes to 'development' (and thereby exclude subdivision). In fact the terms of cl 26 expressly anticipate the application of the R-Codes to the subdivisional process.[45]
[45] Respondent's Submissions, para 93.
Fourthly, the respondent seeks to distinguish Landpark[46] which, as noted above, held that there was no 'conflict between approval of a subdivision application that proposes allotments with areas less than that contemplated by the residential density code that applies to the land under a local planning scheme and the scheme'[47] and also held that the terms of the R-Codes themselves recognise that absence of conflict.
[46] Respondent's Submissions, para 96.
[47] Landpark at [24].
The respondent sought to distinguish Landpark on the basis of material differences in the scheme provisions by which the R-Codes are applied/incorporated[48], and on the basis of material differences in the R‑Codes themselves.[49]
[48] Respondent's Submissions, paras 97 – 98.
[49] Respondent's Submissions, paras 99 – 100.
In Landpark, cl 6(3) of the scheme stated that '… the use or development of land for any of the residential purposes dealt with by the [Codes] shall conform to the provisions of those Codes'.[50] In Landpark the Tribunal held that the phrase 'use or development' excluded subdivision and that there was therefore no conflict between the subdivisional proposal and the terms of the relevant scheme because there was no requirement for subdivision to comply with the terms of the R-Codes.[51]
[50] Landpark at [22].
[51] Landpark at [23] – [24].
By contrast, the respondent submits in the current case, cl 25(1) of the Scheme incorporates the whole of the R-Codes, which include provisions concerned with subdivisions and lot size (site area), into the Scheme.
As to the terms of the R-Codes themselves, the respondent's written submissions assert that while cl 5.1.1 P1.2 'directly address the respondent in its decision-making as to the creation of a lot (i.e. subdivision)', the 2002 iteration of the R-Codes was concerned only with 'development'.[52] That submission relied upon the Tribunal's reasons in Landpark at para 19, which quoted the Performance Criteria to cl 3.1.1 of the 2002 R-Codes.
[52] Respondent's Submissions, para 100.
However, a difficulty arises in this regard for the respondent because, in fact, the 2002 R-Codes contained, at cl 3.1.3, Performance Criteria in quite similar terms to cl 5.1.1 P1.2:
The Commission may approve the creation of a lot of a lesser area and the Commission or a Council may approve a minimum site area of a Grouped Dwelling on a site area less than that specified on Table 1 provided that the proposed variation would meet the following criteria:
·be no more than 5 per cent less in area than that specified on Table 1; and
·…
That is, the 2002 R-Codes explicitly dealt with subdivision, although that fact was not referred to at all by Parry SM (as he then was) in the Landpark decision. That appears somewhat surprising given that he quoted, at para 25, part of the Acceptable Development provisions of cl 3.1.3, being the 'equivalent' provisions to the DTC provisions of the current version.
The existence of the relevant Performance Criteria in cl 3.1.3 of the 2002 R-Codes did not become apparent to the Tribunal (or, indeed, to the parties) until prior to the oral hearing in December 2022, when the respondent helpfully provided a folder of materials which included copies of all previous versions of the R-Codes.
The short point is that the respondent's written submission that the R‑Codes in place at the time of Landpark only addressed 'development' and not 'subdivision' is incorrect.

Applicants' submissions

The applicants' put both a primary and secondary position.

Applicant's Primary Position

The applicant's primary position is that the incorporation of the R‑Codes by cl 25 of LPS6 does not include any part of the R‑Codes that concern subdivision. [53]
[53] Applicants' Submissions on Preliminary Issue dated 3 June 2022 (Applicants' Submissions), para 8.
Central to the applicant's case is the proposition that the term 'development' does not include subdivision.[54] In that regard the applicant relies upon Landpark.
[54] Applicants' Submissions, paras 18 – 19.
The applicant's case (as per the above) is supported by the following submissions.
First, it is said that for the following reasons, properly construed, Part 4 of the Scheme is (or should be) limited to development, so as not to include subdivision:
(a)The heading to Part 4 of LPS6:
(1) forms part of the Scheme;
(2) provides context for the provisions within it; and
(3) 'most significantly, has the effect that the provisions within it are dealing [only] with requirements of development'.[55]
(b)While cl 26 of the Scheme refers in its terms to subdivision, that reference is to the City's role in making recommendations to the respondent under s 142 of the PD Act, rather than to the respondent's decision-making function itself such that, in effect, cl 26 does not diminish the strength of the submission in paragraph (a) above.[56]
(c)Clause 27, which incorporates the SPP 3.6 Infrastructure Contributions, which in turn applies to both subdivision and development, 'can [and presumably ought to] be restricted to development (and not subdivision) requirements.[57] The applicant's written submissions do not explain why this is so, and at the oral hearing Mr Flint confirmed that the applicant relies in this regard upon the matters referred to in paragraphs (a) and (b) above – the heading to Part 4 of the scheme and cl 26.
(d)Clause 32 of the Scheme contains Table 7, which sets out requirements 'relating to development that are additional to those set out in the R-Codes'[58] which, the applicant submits, reinforces that Part 4 of the Scheme is concerned with development, not subdivision.
(e)The heading to Part 4 of the Scheme, as well as the terms of cl 25 itself, are both model scheme provisions. Schedule 1 of the Planning and Development (Local Planning Schemes) Regulations 2015, which set out the model scheme provisions, includes a note which states that Part 4 sets out general requirements 'which apply to land use and development within the Scheme area …' Several mentions are made to development, but not to subdivision.[59]
[55] Applicants' Submissions, paras 10 – 17.
[56] Applicants' Submissions, paras 22 – 25.
[57] Applicants' Submissions, para 26.
[58] Underlining added.
[59] Applicant's Submissions, para 31.
Secondly, the effect of s 77(2) of the PD Act and cl 25 of LPS6 is that the R-Codes, modified by cl 26, 'are set out in full in LPS6 and [apply] to development requirements', which term does not 'include subdivision'.[60]
[60] Applicant's Submissions, paras 38 – 39.
Thirdly, the current application is 'analogous' to Landpark and, therefore, no conflict arises between the approval of the application for subdivision (not development) and the terms of the Scheme because 'cl 25(1) does not operate to specify the R-Codes as requirements of subdivision'.[61]

Applicant's Secondary Submission

[61] Applicant's Submissions, para 44.

The applicant's secondary position proceeds on the assumption that, contrary to its primary case, cl 25 of the Scheme does provide for the incorporation of the R-Codes as a whole (i.e. including any subdivision requirements). In such a case, the Applicant submits that, nonetheless, approval of the application would not result in conflict with the R‑Codes.[62]
[62] Applicant's Submissions, para 46.
That is so because, it is submitted, cl 5.1.1 of the R-Codes does no more than provide 'guidance' for the respondent in considering applications for subdivisional approval.
The applicant's written submissions rely entirely, in this regard, upon Landpark. At the oral hearing, and in response to a query from the Tribunal as to the weight, if any, to be given to the location of cl 5.1.1 P1.2 as a Design Principle, Mr Flint for the applicant agreed with the submissions of the respondent to the effect that its location was of no significance and confirmed that para's 47 – 50 of his written submissions were concerned solely with the applicant's reliance on Landpark.
The applicant's written submission in this regard acknowledges, but does not address, cl 2.5.3. At the oral hearing Mr Flint advised that the applicant did not 'take the point' that that clause is addressed to the 'decision maker' in contrast to cl 5.1.1 P1.2, which is expressly addressed to the respondent by name.

Respondent's submissions in reply

The respondent also filed written Submissions in Reply,[63] much of which was by way of restatement or clarification of things said it its original submissions.
[63] Respondent's Submissions in Reply on Preliminary Issue dated 10 June 2022.
It is therefore necessary only to note the final material submission (at paras 4 – 5) to the effect that cl 5.1.1 C1.4ii of the R-Codes has the effect that, where the respondent has:
(a)approved a subdivision that varies the minimum and/or average site area by less than 5% under cl 5.1.1 P1.2; or
(b)approved a subdivision application that varies the minimum and/or average site area by greater than 5% as a result of departing from policy in:
(i)an area where the applicable scheme does not provide that the R-Codes are to be read as part of the scheme; or
(ii)circumstances where one of the exceptions in s 138(3) of the PD Act applies,
development of a dwelling will be deemed to comply with cl 5.1.1 and therefore the decision-maker on the development application will not need to apply discretion via the design principles[64] (and, in the context of single house, no development application will be required if the house is deemed to comply in all aspects).[65]

Disposition

When Incorporated into a Scheme, the R-Codes are Not 'just a policy'

[64] R-Codes, cl 2.5.1, cl 2.5.2 and cl 2.5.4.

[65] R-Codes, cl 2.2.1.

Section 77(2) is clear in its terms and in its application. Section 77(1)(b) provides that a scheme may provide that a specified SPP 'is to be read as part of the scheme' and s 77(2)(a) provides that if that occurs, the scheme has effect as if the SPP were set out in full in the scheme and s 74(2)(b) provides that the SPP is then to have effect as it were part of the scheme subject to any modifications set out in the scheme.
In addition, cl 25(1) of LPS6 is, in our view, plainly a clause of the nature anticipated and authorised by s 77 of the PD Act.
As a result, in our view it is clear, and we find, that s 77 of the PD Act and cl 25 of the Scheme combine so that the R-Codes form part of, and are to be read as part of, the Scheme at Part 4 thereof.
In our view it is also uncontroversial, and we find, that the words of a local planning scheme, such as LPS6, have 'full force and effect as if enacted by' the PD Act.[66] Accordingly, when incorporated into LPS6 by cl 25, the R-Codes also have full force and effect, as if enacted by the PD Act.
[66] PD Act, s 87(4). Costa at [25] – [29].
For those two reasons we are of the view that the Tribunal was wrong when it said in Baker Investments that despite being incorporated into a scheme the R-Codes remain 'just that, [a] policy'.[67] Section 77 of the PD Act and cl 25(1) of the Scheme have the effect of converting the R‑Codes from 'just a policy' into subsidiary legislation operating with legislative effect as part of LPS6.
[67] Baker Investments at [127].
We also agree with the respondent that the authorities cited by the Tribunal in Baker Investments (namely Bookara, Kakulas and Dumbleton) do not support the conclusions there reached. In the context of LPS6, the R-Codes are not just a policy.
It follows that we respectfully decline to follow the reasoning in Baker Investments in this regard.

'Development' does not, in all cases, exclude 'subdivision'

In this case the respective position taken by each party was that in Western Australia, 'development' does not include 'subdivision.
The leading authority for that proposition is Landpark, which was delivered by Parry SM ex tempore, and which included the following statement:
In contrast to the situation in every other Australian planning jurisdiction (see Boulter and City of Subiaco [2007] WASAT 71 at [61]), in the Shire of Busselton and in Western Australia generally "development" does not include subdivision. The subdivision of land does not, therefore, involve the use or development of any land for the purposes of cl 6(3) of TPS 20. Consequently, approval of the proposed subdivision does not conflict with the provision.[68]
[68] Landpark at [23].
The only authority cited for the finding is Boulter,[69] in which, at the paragraph cited above, Parry SM had said previously:
Subdivision control in Western Australia is regulated by Div 2, Div 3 and Div 4 of Pt 10 of the PD Act, whereas development control is regulated by Div 5 of the PD Act and local and region planning schemes. This split planning system is unique to Western Australia among Australian planning systems. In the other States and the Northern Territory, "development" relevantly includes subdivision of land so that development approval is required for subdivision and there is a single system of development/subdivision control and assessment which is generally administered by local governments …
[69] Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 (Boulter).
It is correct to say that the PD Act creates a separate regime for subdivision under Divisions 2, 3 and 4 of Pt 10 of the PD Act, while development control is addressed under Div 5 of Part 10. That 'split planning system' is also reflected in the terms of, for example, s 164A of the PD Act which provides for, in some circumstances, the 'integration' of subdivision and development. The inclusion of s 164A in the PD Act emphasises the fact that, but for that section the two processes would, otherwise, be separate.
It is also the case that in UWA v Subiaco,[70] Burt CJ said that the statutory definition of development in the predecessor to the PD Act encompassed both 'use' and 'development' with the latter concept comprising activities which result in some 'physical alteration to the land which has some degree of permanence'.[71]
[70] University of Western Australia v City of Subiaco ; [1980] WASC 28; (1980) 52 LGRA 360.
[71] See, more recently, Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89 at [39] – [41].
Plainly, the re-arrangement of title boundaries and the creation of new certificates of titles does not constitute activities which result in some physical alteration to the land. But, equally plainly, the works carried out in satisfaction of the conditions of subdivisional conditions may do so, which is a matter acknowledged by s 157.
In addition, while the statutory definition of 'development' does not expressly include subdivision, as it does in, for example, s 3 of the Planning & Environment Act 1989 (Vic), the definition in the PD Act is inclusive and, therefore, consistent with s 157(1), works carried out pursuant to subdivisional conditions are not excluded from the statutory definition of 'development'.
It is also self-evident, as was recognised in Landpark, that there is 'in practice, an inextricable link' between subdivision and development standards such that the respondent will not ordinarily grant subdivisional approval for lots that will be unsuitable for development approval.[72] In Bormolini,[73] Parry SM described the connection between subdivision and development of land as 'close and fundamental'.
[72] Landpark at [28].
[73] Bormolini and Western Australian Planning Commission [2014] WASAT 121; (2014) 86 SR (WA) 159 at [31].

In our view the foregoing provides a proper basis to find that the term 'development', when used in a planning instrument may, in some circumstances, encompass subdivision.
Put another way, we are of the view that the term 'development' ought not to be understood as excluding the concept of subdivision, and each and every aspect of it, each and every time it is used within the planning framework.
So much appears to have been accepted by Parry SM in WA Developments.[74] In that case, despite stating that 'development' does not include subdivision, he said that the principle of 'sustainable use and development' – which is expressed in s 3(1)(c) of the PD Act as a purpose of that Act – applies to the process of subdivision such that it was a matter for consideration by the respondent and, on review by the Tribunal, when exercising powers of subdivision.
[74] WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 (WA Developments) at [37].
Section 3(1)(c) of the PD Act says that it is a purpose of the PD Act to 'promote the sustainable use and development of land in the State'.[75] It was the phrase 'use and development' which in Landpark Parry SM held did not encompass subdivision. But in WA Developments, despite citing Landpark, Parry SM held that the purpose applied to the process of determining applications for subdivision.[76]
[75] Underlining added.
[76] WA Developments at [37] – [45].
Despite the position taken by the respondent (as noted above at para 149) that Landpark is authority for the proposition that 'development does not include subdivision', the respondent emphasised in its submissions the inextricable link between subdivision and development. And at the oral hearing Mr Repper, who appeared for the respondent, asked rhetorically: 'what is the purpose of subdivision if not to regulate and facilitate development of land?'
We agree. And while the PD Act establishes and implements a bifurcated system for the approval of subdivision and development, in our view that does not have the result that each and every use of the term 'development' in that Act, in planning schemes or other planning instruments is intended to exclude subdivision.
Rather, it seems to us that in some cases the term development is intended to operate more broadly. In particular, the phrase 'use and development [of land]' may well be intended to comprehensively encompass all aspects of the matters addressed by the PD Act, planning schemes and other planning instruments, including subdivision.

Part 4 of the Scheme does not exclude 'subdivision'.

As noted above, the applicant's submissions include that the heading to Part 4 of the Scheme – 'General development requirements' – was concerned only with development and, therefore, excluded subdivision. Similar submissions were made to the effect that cl 25 – cl 27 of the Scheme also do not provide for subdivision. The effect of those submissions, if they were to be accepted, would be to exclude such parts (if any) of the R-Codes that concern subdivision from incorporation into the Scheme.
We accept that the heading to Part 4 forms part of the Scheme.[77] We also accept that, as the heading, it provides a 'focus'[78] and 'context'[79] for the proper construction of Part 4 by, for example, assisting in identifying the relevant statutory purpose.[80]
[77] Interpretation Act 1984 (WA), s 32(1).
[78] Fernandez v State of New South Wales [2019] NSWSC 1736 at [141].
[79] Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178; (2018) 98 NSWLR 526 at [72].
[80] Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152; (2020) 103 NSWLR 568 (Singh) at [31].
Nonetheless, in our view, the clear meaning of cl 25(1) is that the R‑Codes as a whole are to be read as part of the Scheme. That is, after all, what cl 25(1) says.
Putting to one side the foregoing discussion about the distinction between development and subdivision, it would, in our view, be an unusual result if the clear, and clearly broad, terms of a provision were read down by reference to the heading of the part of the Scheme to which the clause belongs. None of the authorities relied upon by the applicant go so far.[81]
[81] Singh at [31].
Secondly, to accept the applicants' submission, and to limit the application of the R-Codes, would be to apply cl 25(1) of LPS6 in a manner that is inconsistent with the clear words of s 77(2)(a), which require that the Scheme is to be read as if the R-Codes are 'set out in full in the [S]cheme'. If there are provisions of the R-Codes which address the topic of subdivision, then s 77(2)(a) requires them to form part of the Scheme.
Thirdly, consistent with the reasons enunciated in the previous subsection, we are of the view that the words of the heading to Part 4, 'General development requirements', may comfortably include within their scope provisions which deal with the subdivision of land and the resulting site requirements of lots that are to accommodate development; i.e. such matters ought to be accepted as falling within the scope of 'general development requirements'.
It follows that we do not accept the applicants' submissions that the heading to Pt 4 of the Scheme has the effect of only applying to such parts of the R-Codes that relate to development in its narrow sense, i.e. development that does not include subdivision. The R-Codes are set out in full in the Scheme. If the R-Codes include some provisions directed at subdivision, then they are not excluded by the heading to Part 4 of the Scheme.
The applicant also made submissions concerning cl 26, cl 27 and cl 32 to the Scheme.
We accept the applicant's submission that the reference in cl 26 to subdivision is limited to the local government's role in making recommendations to the respondent about an application for subdivision, and does not specify a requirement as to subdivision that is directed to the respondent as decision maker.
In our view, however, that distinction does not support the contention that Part 4 of the Scheme is not concerned with subdivision. Plainly, on its face, cl 26 is concerned with subdivision, even if its scope is somewhat narrow.
Equally, the fact that cl 27 incorporates SPP 3.6 – Infrastructure Contributions, the subject matter of which addresses subdivision, supports the conclusion that Part 4 of the Scheme is not limited as to its subject matter as the applicant submits.
Finally, we are of the view that cl 32 of the Scheme, the heading of which is 'Additional site and development requirements'[82] and which deals with matters that do not include subdivision, ought to be seen in the same way as the heading to Part 4, which is addressed above.
[82] Underlining added.
For those reasons, we are of the view that the clause might properly include within its scope provisions regarding subdivision without that fact appearing at odds with the relevant context provided by the heading to the relevant Part and the surrounding clauses.
For these reasons we are of the view that there is nothing in Part 4 of the Scheme that requires any part of the R-Codes that concerns subdivision to be excluded or otherwise carved out from the incorporation of the R-Codes into the Scheme.

Properly Construed, the R-Codes Do Not Limit the Respondent's Power to Vary Lot Size to No More than 5% of the Table 1 Values

For the preceding reasons, we are of the view that the R-Codes, in their entirety, form part of the Scheme and must be given their full force and effect, as if they were enacted by the PD Act.
That means that cl 5.1.1 P1.2, which on its terms limits the respondent's discretion to vary the minimum or average lot size to no more than 5%, must be given its full force and effect.
On the respondent's case, the result is that there is an absolute limit on the power of the respondent, and the Tribunal on review, to approve the subdivision of lots; that is, there is no power to approve lots that are smaller than the minimum and average lots sizes set out in Table 1 by more than 5%.
When cl 5.1.1 P1.2 is read in isolation the respondent's submissions have considerable strength.
We agree with the respondent's submissions that cl 5.1.1 P1.2 is unambiguously directed to the exercise by the respondent of its powers to determine subdivisional applications.
We also agree with the respondent that cl 5.1.1 P1.2 is expressed in clear and unambiguous language; it very clearly states that the respondent's power to vary the minimum and average lot sizes must not be exercised in a manner that exceeds the sizes set out in Table 1 by more than 5%.[83]
[83] The lack of clarity discussed in footnote 16 above does not concern the issue in question here.
However, it cannot be ignored that there are at least three matters of context and legislative purpose which militate against the respondent's submission that we should find that the application is inconsistent with the terms of the scheme.
As noted above, it is well established that the meaning of a provision in a planning scheme 'must emerge from the statutory text, understood in its context, but also having regard to the statutory purpose being pursued'.[84]
[84] Newco Mills at [31].
The first matter of context and purpose is that the R-Codes are, clearly, directed to the question of development approvals under local planning schemes, rather than subdivisional approval under Divs 2 – 4 of Part 10 of the PD Act. So much is acknowledged by the respondent in its submissions.[85]
[85] Respondent's Submissions, para 80.
That is, while we have set out above our view that the term 'development' ought not to be seen as necessarily excluding 'subdivision' each and every time it is used, it is clear that where cl 1.2 of the R-Codes speaks of the R-Codes providing a 'comprehensive basis for the control of residential development', it is speaking of development in its narrow sense; i.e. excluding subdivision.
That is particularly evident from Parts 2 and 3 of the R-Codes. So, for example, cl 2.1.2 is concerned with circumstances where 'development approval is required under a scheme', and cl 2.1.1 sets out as a flow diagram the process for obtaining, or avoiding the need for, a development approval.
The second matter of context and purpose is that cl 2.1, cl 2.2, cl 2.4 and cl 2.5.4 all make clear that the 'design principles' contained within Part 5 of the R‑Codes only apply where the DTC provisions are not met/ satisfied. If the DTC provisions are satisfied, then the Design Principles are not engaged at all.
The third matter of context and purpose is that the DTC provisions of cl 5.1.1 are directed to applications for development approval under a scheme, rather than applications for subdivisional approval under Divisions 2 – 5 of Part 10 of the PD Act.
The terms of C1.4ii strongly support such a construction. That clause provides:
C1.1 Development which complies with the dwelling type and site area requirements set out in Table 1 and the following provisions.
…
C1.4Subject 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 WAPC.
In our view the clause, properly construed, provides that development may occur on a lot which is less than the minimum and average site areas set out in Table 1 if, and only if, the lot in question has previously been approved by the WAPC.
That sub-clause implicitly recognises that the respondent can approve lots that are smaller than the minimum and average lot sizes in Table 1.[86] But the clause does not provide the basis for that power, it merely allows development (in the narrow sense) to occur in relation to such lots following subdivisional approval.
[86] The respondent's submission, contained in its Reply Submissions and summarised at para 141 above, are to that effect.
So much follows from the fact that the sub-clause forms part of the DTC provisions; if the DTC provisions are satisfied, there is no decision-making power at all if the application is for a single house and decision-making discretion does not arise in relation to this element in all other cases.
At this point it is necessary for cl 2.5.3 to be considered. It also provides context for the true effect of P1.2 of cl 5.1.1 and on its face, it might be said to provide support for the respondent's case. It provides:
The decision-maker shall not vary the minimum or average site area per dwelling requirements set out in Table 1 (except as provided in the R-Codes Volume 1 or the scheme).
Three things can be said about cl 2.5.3:
First, it forms part of cl 2.5, which is headed 'Exercise of judgement' and which follows cl 2.4, which in turn explains that a decision maker is to exercise its judgement: (1) when (and only when) a proposal does not meet one or more DTC provisions; and (2) only in relation to those elements of the proposal which don't meet the DTC provisions. Read in context the scope of cl 2.5 is therefore limited accordingly.
Secondly, cl 2.5.3 is directed to the 'decision-maker' which is in contrast with P1.2 of cl 5.1.1 which names the respondent ('WAPC') as the object of the clause.
We accept that the definition of 'decision-maker' in Appendix 1 of the R-Codes is expressed so broadly that it is possible to read the respondent as included within it, but if that was the intention the (apparently deliberate) use of the term 'WAPC' in cl 5.1.1 (both in P1.2 and P1.3 as well as C1.4ii) would be unnecessary.
The drafting history of the R-Codes supports this view. The 2002 version of the R-Codes, at cl 2.3.4(3), contains a version of the current cl 2.5.3 which is for all intents and purposes identical to the current clause save that the earlier version refers to a 'Council' rather than to the 'decision-maker'. The later wording was incorporated in 2013, after the creation of DAPs in 2011. Mr Repper also submitted at the oral hearing that the wording change was intended to capture redevelopment authorities, which we accept.
In our view, however, the drafting change was not intended to capture the respondent. In our view the contrast between 'decision maker' in cl 2.5.3 and 'WAPC' in cl 5.1.1 is significant and strongly suggests that cl 2.5.3 is directed to the body charged with determining an application for development approval, rather than the respondent exercising its powers to determine applications for subdivision.
In our view, cl 2.5.3 acknowledges the possibility that, despite non-compliance with the DTC provisions of cl 5.1.1, approval might be granted for development on a smaller lot than allowed for by Table 1 through the exercise of discretion. So much seems to follow given its role as an exception to what is set out in cl 2.5.1.
Thirdly, and for the same reason as immediately above, the words in parentheses in cl 2.5.3 (i.e. 'except as provided in the R-Codes Volume 1 or the scheme') appear to be a reference to the DTC provisions cl 5.1.1 C1.3 and C1.4, rather than the design principle cl 5.1.1 P1.2.
That is, in our view, cl 2.5.3 appears to allow an application for development approval under a scheme to be approved by a decision‑maker despite being on a lot that is smaller than the Table 1 requirements but only if the calculation includes adjustments under cl 5.1.1 C1.3 and/ or if an exception in cl 5.1.1 C1.4 is satisfied.
That is so, in our view, because of both the status of cl 2.5.3 as an exception to cl 2.5.1 (which follows on, both logically and contextually, from cl 2.4) as well as the use of the term 'decision-maker' rather than WAPC.
To that extent, cl 2.5.3 appears to simply reiterate, and play the same role as the Note to the DTC provisions of cl 5.1.1, which provides that 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'. In our view some significance flows from the fact that the design principles (P1.1 to P1.3) are not 'below' that Note but the DTC provisions are.
The above matters of context and purpose are such that, in our view, cl 5.1.1 P1.2 plays no real, active role within the R-Codes. To be clear, that is because:
(a)The R-Codes as a whole are concerned not with applications for subdivision but for development approval;
(b)Applications for development approval are assessed by first having regard to the DTC provisions and only if the DTC provisions are not met are the design principles relevant;
(c)The DTC provisions for site area are concerned with development applications where the subdivisional process has already been completed and the resulting lot size is already known; and
(d)Cl 2.5.3, properly construed, is concerned with the power to approve development applications and is not concerned with the respondent's subdivisional decision-making power.
In such circumstances, cl 5.1.1 P1.2 appears to have no active or operational work to do under the R-Codes.
We have not placed any weight on the Explanatory Guidelines in construing cl 5.1.1 P1.2. That is for two reasons. First, as Guidelines, they merely represent the subjective view of the respondent. They cannot assist in the proper construction of the text's objective meaning.
But in any event, the terms of the Explanatory Guidelines are inherently inconsistent. As noted above, the Explanatory Guidelines contain two statements which state, in effect, that the R-Codes provide no more than guidance for the Respondent in the exercise of its subdivisional powers[87] but elsewhere they refer to cl 5.1.1 P1.2 in terms that suggest the 5% limit on the respondent's discretion is absolute.[88]
[87] See the underlined passages at paras [88] and [91] above.
[88] See the passage at para 90 above.
Before concluding our reasons in this regard it is necessary to consider the principle that planning schemes must be construed 'broadly rather than pedantically, and with a sensible practical approach'.[89]
[89] Re Shire ofMundaring; ex parte Solomon& Ors [2007] WASCA 132 at [25] (Steytler P, McLure JA, Pullin JA). Also, Newco Mills at [32] quoted above at para 60.
It might be said that allowing matters of context to 'prevail' over the clear words of the text is contrary to that principle.
Of course, that principle was never intended to operate in isolation. As the Court of Appeal said in Australian Unity, although schemes must be construed broadly, sensibly and not pedantically:
… the exercise remains one of identifying the objective meaning from a consideration of the legislative text, understood as a whole and in the context in which and purpose for which it was enacted.[90]
[90] Australian Unity at [84].
Indeed, the point being made by the Court of Appeal in Australian Unity was that, perhaps more so than many other types of legislation:
[t]he terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.[91]
[91] Australian Unity at [82].
We are confident that our construction of cl 5.1.1 P1.2 is consistent with the approach required by the above principles. While the terms of the clause are clear and unambiguous, they are located with the R‑Codes in a place that gives them no practical effect.
We are satisfied that the construction we have given cl 5.1.1 P2.1 is not 'counter-intuitive' or overly technical. The common users of the R‑Codes – the planners and government officials – understand that the R-Codes are concerned with applications for development approval and understand the role played by the DTC's and the Design Principles in the assessment of such applications.

As to the LP Strategy, the applicant submits it identifies the suitability of increased densities around activity centres (relevant because of the proximity of the Land to The Village) under cl 3.3.4 which addresses neighbourhood and local centres in the following terms:[194]
…
Gaps and opportunities that would improve performance outcomes of activity centres are:
•Increase the density and diversity of housing in and around activity centres to improve land efficiency, housing variety and support centre facilities. A more rigorous pursuit of higherdensity housing should be incorporated within and immediately adjacent to activity centres to establish a sense of community and increase activity outside normal business hours. Targets for residential density as set out in SPP 4.2 should be applied throughout the City of Melville activity centre network, with regard to the capacity of each centre to meet set targets[.]
[194] Applicant's Contentions Document, para 19, Exhibit 7 and LP Strategy, Amended Agreed s 24 Bundle of Documents, page 83, Exhibit 4.
The evidence of Mr Allerding identifies the four planning documents (beyond the R-Codes) which he says supports the proposed subdivision.[195]
[195] Witness Statement of Stephen Allerding, para 71, Exhibit 9.
First, Liveable Neighbourhoods[196] says, and I accept, anticipates higher residential densities within walking distance of local and neighbourhood centres.[197]
[196] Both in the current and draft forms.
[197] Witness Statement of Stephen Allerding, paras 58 - 61, 69 - 70, Exhibit 9.
Second, SPP 4.2 encourages increased residential densities around local and neighbourhood centres. Mr Allerding identifies that for neigbourhood centres (such as The Village) a residential density target of 25+ dwellings per gross urban zone hectare is supported within a 200metre walkable catchment.[198] It is agreed the Land is located within a 200-metre catchment, being approximately 40 metres from The Village.[199]
[198] Witness Statement of Stephen Allerding, para 55, Exhibit 9.
[199] ASIF, para 26, Exhibit 2.
Third, Mr Allerding says the proposed subdivision is consistent with a number of the aims of LPS 6 and also consistent with several objectives of the Residential zone (referred to earlier at [110] - [111]).
Fourth, the LP Strategy supports increased densities in activity centres and the implementation of density targets set out in SPP 4.2 (referred to earlier at [114]).
Apart from the design aspects of the proposed subdivision, which (as indicated earlier) are not the concern for the respondent, Mr Allerding says that the departure from the minimum and average site areas 'are justifiable and consistent with the density of development of both the immediately adjoining lots and is a rounding off of subdivision of all adjoining lots'.[200]
[200] Witness Statement of Stephen Allerding, para 71, Exhibit 9.
Under cross-examination Mr Sutherland accepts achievement of higher densities around activity centres, which are advocated in SPP 4.2 and Liveable Neighbourhoods, 'would be a proper planning outcome, as a general principle'.[201]
[201] ts 83, 8 August 2023.
In closing submissions, the respondent concedes, 'that indications are that it [being the residential density coding of the Land] might be heading, and perhaps should be heading, in the direction of an increased density', but submits 'that process needs to be followed'.[202]
[202] ts 110, 8 August 2023.
When considering process, Mr Sutherland asserts what he is not in agreement with is the way the proposed subdivision has been put forward. He says what is advocated for in the policy framework is an approach which involves a holistic review of an area through a strategy, a review of a strategy, or a preparation of new scheme, or review of a scheme or a scheme amendment.[203]
[203] ts 86, 8 August 2023.
I accept this is the process for making changes to the planning framework, such as a change to a residential density coding in a local planning scheme and I also accept this is for good reason. First, it provides the opportunity for the planning authorities at State and Local level to review the needs of a community against broader State planning objectives and policies. Second, it allows the community the opportunity, through public advertising of proposed Scheme changes, to have their say on the aspects that affect them and their community, and for these comments to be considered by the relevant planning authorities, and ultimately by the Minister for Planning (when deciding changes to a local planning scheme).
However, as Dr Stephen Willey observes in 'Planning and Environmental Law in Western Australia'[204] there is no public advertising that occurs as part of the subdivision process.[205] In any event, my decision in this matter must necessarily focus on this Application for Review and consider whether the proposed subdivision is consistent with the principles of orderly and proper planning (in the context of producing the correct and preferable decision at the time of the decision upon the review),[206] understanding the unfettered discretion available to the Commission in determining subdivision applications, and hence to the Tribunal on review.
[204] Published 2021, Thomson Reuters.
[205] At pages 236 - 237.
[206] As required by s 27(2) of the SAT Act.
Considering the evidence before me, this ultimately is a case where the respondent is not concerned with the form of the proposed subdivision per se, because the design aspects (apart from lot size) are uncontroversial. It is also accepted by the respondent the community is unlikely to be affected to an observable extent.
The residential density resulting from the proposed subdivision is, in my view, consistent with the provisions of SPP 4.2, Liveable Neighbourhoods and the aspirations in the LP Strategy.
The respondent's principal concern in respect to orderly and proper planning, supported by the evidence of Mr Sutherland, centres on an adherence to usual planning processes, which relate to making changes to planning schemes. However, in the somewhat unusual circumstances of this case, which I accept, involves creation of one additional lot which completes (or rounds off) an existing pattern of subdivision and where the Land itself is in very close proximity to a neighbourhood centre (The Village), approval of the proposed subdivision is, in my view, plainly an orderly and proper planning outcome, notwithstanding the average or minimum site areas prescribed in the R-Codes are not met.

(d) Whether approval of the proposed subdivision is objectionable

The respondent contends the proposed subdivision is objectionable for three reasons.[207] I observe the three reasons are the earlier parts (a) to (c) of the Issue for determination.
[207] Respondent's Contentions, para 30, Exhibit 3.
First, the respondent says it is not appropriate to depart from the minimum and average site areas that apply to subdivision of the Land pursuant to LPS 6 and the R-Codes. I have considered this at [55] - [85] and will return to this when determining the issue overall at [147] - [160].
Second, the respondent submits the subdivision would set an adverse precedent for the further subdivision of lots of similar size in the locality. I considered this earlier at [86] - [101] and concluded it would not.
Third, the respondent says approval of the proposed subdivision would be inconsistent with the principles of orderly and proper planning. I considered this earlier at [102] - [128] and concluded that approval would not be inconsistent with the principles of orderly and proper planning.
The applicants contend the proposal is not objectionable for three reasons.[208]
[208] Applicant's Contentions Document, paras 21 – 23.
First, Liveable Neighbourhoods and SPP 4.2 anticipate and encourage increased resident density within walking distance of local and neighbourhood centres, at a density which the applicant submits is similar to the proposed subdivision.
Second, the proposed subdivision is a logical 'rounding off' of existing subdivision in the immediate locality, notwithstanding the zoning of the Land under LPS 6 and the R15 density coding which applies.
Third, the design treatments of the proposed subdivision mean the community will experience little, if any, discernible change. As mentioned, the respondent concedes this is the case.[209]
[209] See [53].
The evidence of Mr Sutherland is that Liveable Neighbourhoods is a policy that would normally apply to 'greenfield' areas and 'brownfields' as well. But he says, '[t]his is just a small [infill] subdivision, in my eyes, so it doesn't apply'.[210]
[210] ts 55, 8 August 2023.
However, the evidence of Mr Allerding, is that the City acknowledges they do not have 'greenfield' or large 'brownfield' sites, and he says the LH Strategy states the City would seek to use Liveable Neighbourhoods 'as a guide to best practice'.[211] This, in my view, supports the applicant's submission that Liveable Neighbourhoods is relevant in this case.
[211] ts 55, 8 August 2023 and Witness Statement of Arran Sutherland, page 291, Exhibit 6.
Similarly, the evidence of Mr Sutherland is that SPP 4.2 is not a policy that applies to the proposed subdivision.[212] However, Mr Allerding's evidence is that the City's LP Strategy identifies SPP 4.2 as follows:[213]
Targets for residential density as set out in SPP 4.2 should be applied throughout the City of Melville activity centre network, with regard to the capacity of each centre to meet set targets.
[212] Witness Statement of Arran Sutherland, para 154, Exhibit 6.
[213] Witness Statement of Stephen Allerding, para 30, Exhibit 9 and Amended Agreed s 24 Bundle of Documents, page 83, Exhibit 4.
This, in my view, also supports the applicants' submission that SPP 4.2 is relevant in this case.
Under cross-examination, Mr Sutherland accepts that SPP 4.2 is relevant but only insofar as 'it would have been taken into consideration as part of the preparation of the [LP] [S]trategy and its recommendations'.[214]
[214] ts 84, 8 August 2023.
Mr Sutherland's approach, in my view, ignores DC 2.2 (at cl 4.1.1) which says '[a]pplications for residential subdivision to be assessed against (among other things):
state and local planning frameworks, including Liveable Neighbourhoods.
Earlier, I accepted the planning framework includes SPP 4.2.[215]
[215] See [65].
Mr Allerding was cross-examined on SPP 4.2 (in the context of the LP Strategy) which resulted in the following exchange.[216]
MR ALGERI: [respondent's representative]
… Mr Allerding, you're talking about – you're continuing on the same theme of densities around activity centres. But, other than in a relative sense, this subdivision is not really introducing higher density, or not even as high as some of the documents even suggest it could be. Do you accept that point?
MR ALLERDING: Yes.
[216] ts 53, 8 August 2023.
Under further cross-examination, Mr Allerding accepts a future LP Strategy may recommend a higher residential density, however he identifies the evidence of Mr Sutherland that this may not be for 'quite a number of years' and he therefore concludes the proposed subdivision is a step in the right direction.[217] In the circumstances of this case, I agree.
[217] ts 54, 8 August 2023. Mr Sutherland's evidence is that 'The approval of the [proposed subdivision] would result in the introduction of a density that is currently not intended for the area, and is not flagged for introduction in the near future', Witness statement Arran Sutherland, para 134, Exhibit 6.
Considering the analysis in parts (a) to (c), the submissions of the parties and the evidence before me, and in particular the context of the Land, there is nothing, in my view, that renders approval of the proposed subdivision objectionable from a town planning perspective.

Should the proposed subdivision be approved in the exercise of the Tribunal's planning discretion?

When considering the exercise of the Tribunal's discretion, the applicants submit the circumstances of the present case has parallels with the Tribunal's[218] decision in Landpark.
[218] SM Parry (as he then was).
Landpark also relates to a subdivision involving the creation of two lots. Although the locational context (being on Caves Road, approximately halfway between Busselton and Dunsborough) is different from the present case some factual circumstances, I accept, are similar. The concerns raised by the respondent in Landpark and in the issues for determination in that case are also similar.[219]
[219] Landpark at [12] and [14].
The extent of lot size variation under the R-Codes in Landpark was significant. As an R2.5 coded parcel of land, the subdivided lots in Landpark required a minimum site area requirement of 4000m², however lots of only 1972m² were proposed.[220] Like in the present case, in Landpark the applicant argued that the proposal was a 'rounding off' of the subdivision pattern in the locality.[221] Historically, the lots had been subdivided, and subsequently amalgamated.[222]
[220] Additionally, a minimum frontage of 40 metres was required, whereas frontages of 34.6 metres and 34.7 metres were proposed. Landpark at [20].
[221] Landpark at [48] - [49].
[222] In the present case, subdivision approval had been granted, but not acted upon and since lapsed.
Also, in that case, the evidence of the respondent's expert planning witness was 'that the planning merits do not warrant a departure from the Commission's Policy because "the policies are soundly based and should be consistently applied throughout the State to ensure that their integrity is not undermined"'. The Tribunal considered the application of policy and observed that 'this approach in essence would require an inflexible approach of policy in a manner not permitted by law'.[223]
[223] Landpark at [53].
Notwithstanding the lot size variation in Landpark, the Tribunal, after considering all the circumstances and the evidence, exercised discretion to approve the subdivision, subject to conditions.
The respondent, alternatively, submits the Tribunal's[224] decision in De Abreu and Western Australian Planning Commission [2019] WASAT 57 (De Abreu) should be relied on when considering the exercise of its discretion in this case. De Abreu involved an application for subdivision and the respondent submits it has many similarities with the current case, being a subdivision with lot sizes smaller than those prescribed and located in the City. The history of the land in that case also involved historical changes to the residential density coding.[225]
[224] SM Spillane.
[225] ts 107, 8 August 2023.
In De Abreu, the Tribunal was not satisfied that any of the criteria set out in cl 5.1.1 P1.2 of the R-Codes apply and as a matter of orderly and proper planning could find no cogent reason why, in the circumstances of that case, a variation to the average lot size should be allowed and the subdivision approved.[226]
[226] De Abreu at [139].
However, in my view, De Abreu can be distinguished from the present case because the form of subdivision proposed in De Abreu was not considered would 'facilitate and encourage high quality design and streetscapes' and/or 'maintain compatibility with general streetscape'.[227] Further, in De Abreu at [97], the Tribunal observed:
Consideration of a proposed subdivision application against the criteria is not simply a mathematical exercise and in the Tribunal's view, particularly in respect of the criterion under consideration, the physical changes proposed are important.
[227] De Abreu at [130].
The criterion under consideration involved lot frontage and its impact on the streetscape. However, in this case, when considering the criterion of lot size, I accept the principle in De Abreu that consideration is not simply a mathematical exercise and that the physical changes are important. In the present case, as already mentioned,[228] it is uncontroversial the physical changes to the streetscape or those likely to be experienced by the local community, because of the proposed subdivision are minimal.
[228] At [53].

Findings

In the present case, after considering the earlier analysis in the four subparts (a) to (d) of the Issue for determination and the evidence before me, I find the proposed subdivision should be approved for four reasons:
First, in the specific (and somewhat unusual) circumstances of this case it is, in my view, appropriate to depart from the minimum and average site areas that apply to the Land under LPS 6 and the R-Codes because:
(i)the Land is already surrounded by subdivided lots which have a similar pattern of subdivision and the proposed subdivision is reflective of the settlement pattern in the immediate locality (where residential lots have been subdivided);
(ii)the Land is in close proximity to a neighbourhood activity centre, The Village, located approximately 40 metres north;
(iii)the proposed subdivision has a form that will not cause detriment to the streetscape and will minimise impact on the community; and
(iv)the proposed lot sizes can accommodate residential development.
Second, approval of the proposed subdivision would not set an adverse precedent for similar subdivision in the broader locality because, on the evidence before me, none of the lots in the locality have the same characteristics as the Land and therefore further applications for subdivision would be distinguishable from this case.[229]
[229] See [86]-[101].
Third, approval of the proposed subdivision would be consistent with the principles of orderly and proper planning because the Land is in close proximity to The Village and an increased residential density in this location is supported by SPP 4.2, Liveable Neighbourhoods and as an aspiration in the LP Strategy and further, the form of the subdivision will not have a detrimental impact on the streetscape or the locality.[230]
[230] See [102]-[128].
Fourth, approval of the proposed subdivision is not objectionable because it will not set an adverse precedent and its form will not have a detrimental impact on the locality, because the Ardross Street streetscape will be maintained.[231]
[231] See [129]-[146].

Conclusion

For the reasons outlined, after considering the relevant planning framework, the submissions of the parties and the evidence before me, I have found the correct and preferrable decision in this case is to approve the proposed subdivision, subject to conditions. This is because approval would not set an adverse precedent and the subdivision itself is not objectionable.
I have also determined, in the specific (and somewhat unusual) circumstances of this case, that approval of the proposed subdivision is consistent with the principles of orderly and proper planning, and it is in these circumstances appropriate to depart from the minimum and average site areas that apply to the Land pursuant to LPS 6 and the R-Codes.

Conditions

In the event the Tribunal determined the proposed subdivision should be approved, the respondent provided six without prejudice draft conditions.[232] The six conditions are agreed[233] and, in my view, appropriate in this case.
[232] Respondent's Without Prejudice Draft Conditions, Exhibit 5.
[233] Applicant's Response to the Draft Without Prejudice Conditions, Exhibit 8.
For these reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:
1.The application for review is allowed.
2.The decision of the respondent on 5 August 2021 to refuse the proposed subdivision at No 46 (Lot 518) Ardross Street, Applecross is set aside, and a decision is substituted that approval is granted for the proposed subdivision under the Planning and Development Act 2005 (WA) as shown on the approved plan (drawing number 21037-APS01, version 2.0, dated 2 September 2021), subject to the following conditions:
(a)Arrangements being made to the specification of Western Power for the provision of an electricity supply to the survey strata lots shown on the approved plan of subdivision, which may include the provision of necessary service access rights either as an easement under Section 136C and the Tenth Schedule of the Transfer of Land Act 1893 for the transmission of electricity by underground cable, or (in the case of approvals containing common property) via a portion of the common property suitable for consumer mains. (Western Power).

(b)(i) Arrangements being made to the Water Corporation for the provision of a suitable water supply service to each lot shown on the approved plan of subdivision. (Water Corporation).
(ii)Additionally, arrangements are to include the provisions of a suitable water supply service to each lot in the scheme (plan). (Western Australian Planning Commission).

(c)(i) Arrangements being made with the Water Corporation for the provision of a sewerage service to each lot shown on the approved plan of subdivision. (Water Corporation).
(ii)Additionally, arrangements are to include the provision of a suitable sanitary drainage service to each lot on the strata scheme (plan) by a Licensed Plumbing Contractor. (Western Australian Planning Commission).

(d)Other than buildings, outbuildings and/or structures shown on the approved plan for retention, all buildings, outbuildings and/or structures present on Lot 2 at the time of subdivision approval being demolished and materials removed from the lot(s). (Local Government)
(e)The land being filled, stabilised, drained and/or graded as required to ensure that:
(i)lots can accommodate their intended development; and
(ii)finished ground levels at the boundaries of the lot(s) the subject of this approval match or otherwise coordinate with the existing and/or proposed finished ground levels of the land abutting; and
(iii)stormwater is contained on-site, or appropriately treated and connected to the local drainage system. (Local Government)

(f)The existing dwelling being retained is to comply with the requirements of the Residential Design Codes. (Local Government)

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MR R Povey, MEMBER

26 OCTOBER 2023