THE OWNERS OF STRATA PLAN 5517 and WESTERN AUSTRALIAN PLANNING COMMISSION
[2006] WASAT 348
•29 NOVEMBER 2006
THE OWNERS OF STRATA PLAN 5517 and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 348
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 348 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:664/2005 | DETERMINED ON THE PAPERS | |
| Coram: | MR L GRAHAM (SESSIONAL MEMBER) | 29/11/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF STRATA PLAN 5517 WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Strata units Common property Restrictive covenant Precedent Outbuildings Strata levies Codes Resolution without dissent |
Legislation: | City of Stirling District Planning Scheme No 2, cl 1.1.6.1, cl 1.1.6.2, cl 1.1.6.4, cl 1.5.4, cl 2.3.2.1 Metropolitan Region Scheme Planning and Development Act 2005 (WA) Residential Design Codes of Western Australia (2002), cl 3.1.3 A3 State Administrative Tribunal Act 2004 (WA), s 31 Strata Titles Act 1985 (WA) Strata Titles General Regulations 1996 (WA) Town Planning and Development Act 1928 (WA), s 5AA, s 26(1), s 61(1)(a) |
Case References: | Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988) Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Nil |
Orders | 1. The application for review is dismissed.,2. The decision under review is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : THE OWNERS OF STRATA PLAN 5517 and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 348 MEMBER : MR L GRAHAM (SESSIONAL MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 29 NOVEMBER 2006 FILE NO/S : DR 664 of 2005 BETWEEN : THE OWNERS OF STRATA PLAN 5517
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Strata units - Common property - Restrictive covenant - Precedent - Outbuildings - Strata levies - Codes - Resolution without dissent
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.1.6.1, cl 1.1.6.2, cl 1.1.6.4, cl 1.5.4, cl 2.3.2.1
Metropolitan Region Scheme
(Page 2)
Planning and Development Act 2005 (WA)
Residential Design Codes of Western Australia (2002), cl 3.1.3 A3
State Administrative Tribunal Act 2004 (WA), s 31
Strata Titles Act 1985 (WA)
Strata Titles General Regulations 1996 (WA)
Town Planning and Development Act 1928 (WA), s 5AA, s 26(1), s 61(1)(a)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S Bain (Acting as Agent)
Respondent : Ms N Lucas-Smith (Acting as Agent)
Solicitors:
Applicant : SJB Town Planning & Urban Design (Town Planners)
Respondent : Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988)
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The application for review relates to a proposal by the Owners of Strata Plan 5517 to subdivide their 2830 square metre property to separate off the two single dwellings at the front into two individual lots and retain a rear lot for the remaining eight multiple units.
2 The reason for the proposal is the argument by the owners of the two dwellings that they are unable to repair their homes independently from the other strata owners, or the associated outbuildings on common property but over which they have exclusive use. They argue that subdivision is the only solution to the problem.
3 In examining this matter, the Tribunal has had regard to the background to the proposal, the substance of the argument by the owners of the two front dwellings and the content of State residential policies and the district planning scheme. Matters such as a possible rezoning or restrictive covenant to prevent two storey redevelopment on the proposed front lots were also examined, along with the matter of precedent.
4 Based on the information before it, the Tribunal remains unconvinced that all avenues have been explored under the relevant Strata Titles legislation and that, in this circumstance, the provisions of the State's community based planning legislation should not be contemplated as a tool to resolve the specific problems of individual landowners.
5 The application for review is dismissed.
Introduction
6 The application for review, dated 12 December 2005, was made under the provisions of s 26(1) of the Town Planning and Development Act 1928 (WA). It was lodged by Mr Nigel Paul of Spectrum Surveys, on behalf of the Owners of Strata Plan 5517 (applicant), in Brighton Road, Scarborough, against a decision of the Western Australian Planning Commission (respondent) on 16 November 2005 to reiterate its previous decision of 29 June 2005 to refuse an application for subdivision.
7 The reasons for refusal were:
"i) The proposed subdivision does not comply with the Commission's Policy DC 1.1, DC 2.1 and DC 2.2,
- provisions of Statement of Planning Policy No. 1 (Variation No. 1), by reason that:
- • It will result in the creation of a 1581m2 lot (proposed Lot 252) and existing residential development on that lot will be significantly below the minimum and average lot size requirements for an R30 area as stipulated by the Residential Design Codes and the City of Stirling District Planning Scheme No. 2; and
• The application if approved would result in a 51.8% variation to the average lot size requirements for land coded R30 in accordance with the Residential Design Codes and the Commission considers that such a substantial variation is not justified.
- ii) The Commission is not prepared to approve the subdivision as the resultant lot sizes would be below the minimum indicated by the Local Government's Town Planning Scheme.
iii) The Commission is not prepared to approve the subdivision as it considers that it is contrary to the orderly and proper planning of this locality and would set an undesirable precedent for non-compliant development on other lots in the locality to be subdivided in the same manner."
The subject land and the proposal
8 The subject land can be described as Lot 205 of Swan Location 1134 on Certificate of Title Vol 1485, Folio 369, Strata Plan 5517. It has a total area of 2830 square metres and is located on the south side of Brighton Road.
9 There are 10 built strata units with eight multiple units at the rear (Units 1 to 8) and two separate houses (Units 9 and 10) at the front.
10 The proposal is to subdivide and separate off the two single houses from the multiple dwellings at the rear. This will result in a Lot 250 (single house) of 437 square metres, a Lot 251 (single house) of
(Page 5)
- 812 square metres and a Lot 252 (eight multiple dwellings) of 1581 square metres.
11 The net effect of the subdivision is that proposed Lot 250 would equate to current Unit 9, proposed Lot 251 would equate to current Unit 10 and proposed Lot 252 would equate to current Units 1 to 8.
12 The multiple dwellings at the rear on proposed Lot 252 are some 3 metres higher than proposed Lots 250 and 251.
13 It appears that the prime intent of the subdivision is to:
(a) extinguish the need for the owners of current Units 9 and 10 to contribute to the strata scheme common insurance by creating two 'green' title lots (Lots 250 and 251); and
(b) facilitate further development of current Unit 10 to allow the owners to extend their dwelling into their fenced rear yard which is currently defined as common property on Strata Plan 5517.
Legislative framework
14 The subject land is zoned "urban" in the Metropolitan Region Scheme (MRS) and "low density residential R30" in the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme).
15 The matter is also covered by s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) which provides for Statements of Planning Policy. The Tribunal is required "to have due regard" to such statements under s 61(1)(a).
16 Specific policies relevant to the matter under s 5AA of the TPD Act include:
(a) Statement of Planning Policy No 1: State Planning Framework – Variation No 2 (SPP 1);
(b) Development Control Policy 1.1: Subdivision of Land – General Principles (DC 1.1);
(c) Development Control Policy 2.2: Residential Subdivision (DC 2.2); and
(d) Residential Design Codes of Western Australia (2002) (Codes).
(Page 6)
Respondent's position
17 The respondent's position is contained in the Statement of Issues, Facts and Contentions dated 18 August 2006. It argues:
(a) The objective of the housing density requirement of the Codes (Part 3) is to:
"ensure that residential development occurs in line with community expectations about its type and density."
(b) The average lot size of the existing strata scheme is 283 square metres, which is below the average lot size requirement of 300 square metres for R30 as specified by the Codes (Table 1). The existing strata scheme with 10 dwellings is non-compliant with both DPS 2 and the Codes in that only nine dwellings are permitted under R30.
(c) If approved, the average lot size on proposed Lot 252 will be 197.625 square metres. This is substantially less than the existing average lot size of 283 square metres for the whole of the subject land and the 300 square metre average lot size requirement of the Codes.
(d) With an average lot size of 197.625 square metres, the minimum proposed lot size would be substantially below the minimum lot size requirement of 270 square metres for an R30 zoned area.
(e) The application, if approved, will significantly exacerbate the non-compliance of the existing strata plan.
(f) The proposed Lot 251 at 812 square metres could be subdivided under R30. It would receive a so called "conferred development right", thereby exacerbating the non-compliance of the overall development.
(g) The creation of Lot 251 to permit further subdivision is inconsistent with the aim of DPS 2 to have a prescribed density and may have a detrimental impact on the residential amenity and character of the locality.
(h) The proposal does not meet any of the criteria in cl 3.2.3 of DC 2.2.
(i) The proposal is contrary to the orderly and proper planning of the locality and would set an undesirable precedent for
- other non-compliant lots in the locality to be subdivided in a similar manner.
- (j) The suggestion that the subdivision to create Lot 251 could be approved by way of a restrictive covenant on title is not acceptable. Pursuant to cl 2.3.2.1 of DPS 2, a restrictive covenant, which purports to limit the number of dwellings to less than that permitted by DPS 2, is extinguished or varied to the extent of the inconsistency with the applicable Code (R30).
(k) It would be undesirable for the local government to enter into a private covenant with a landowner (and the landowner's successors in title) to contradict zoning rights. This could give rise to litigation to challenge or enforce compliance.
Applicant's position
18 The applicant's position is outlined in a Statement of Issues, Facts and Contentions dated 20 August 2006. It argues:
(a) The respondent, and the Tribunal, have unfettered powers to approve subdivision under the Planning and Development Act 2005 (WA).
(b) It has been established in case law that no matter what the zoning (or density in this case), the suitability of the land for the proposed subdivision is a key determinant. In this case the land is suitable as the development (and density) already exist.
(c) DPS 2 has no provision that would prevent the proposed subdivision. The non-conforming use provisions enable the existing situation to continue and cl 1.5.4 enables the existing multiple dwellings to be re-built to the existing density, no matter what the lot size.
(d) The Codes state in 3.1.3 A3:
"Subject to 3.1.2 only, the following variations to the minimum site areas set out in Column 3 of Table 1 may be made:
…
- (ii) in the case of a Single House, the area of a lot approved for subdivision by the Commission."
- (e) Policies DC 1.1, 2.1 and 2.2 do not cater for the circumstances of this application. However, the proposal does conform to other policies of the respondent in relation to medium to high densities in close proximity to strategic locations such as Scarborough.
(f) The surrounding area is currently being rezoned to R80 and R160 via Scheme Amendments 147 and 148. The existing density on the subject land would not be inconsistent with those proposed densities.
(g) The City of Stirling, who support the proposal, are undertaking a review of residential densities and there is an opportunity for the density coding to be increased in the future to address any issues of excessive density.
(h) The issue of extra development potential of proposed Lot 251 can be addressed via a restrictive covenant. This is acceptable to the owners until a suitable density coding is put in place.
(i) The proposed subdivision is the only solution to the ongoing problem of the subject land.
Planning issues
19 The principal planning issue in this case is whether, in the knowledge that the proposal does not conform to policy and scheme provisions with respect to a R30 coding, that the specific circumstances and planning merits of the proposal are sufficient to justify an approval.
Assessment of proposal
Background
20 The original application for subdivision, dated 12 January 2005, was refused by the respondent on 29 June 2005.
21 A request for reconsideration of the refusal was forwarded to the respondent on 20 July 2005. The request was referred to the City of Stirling on 29 July 2005.
(Page 9)
22 The City reiterated its original advice of 6 April 2005, which included the following comment:
"Accordingly, the City has no objection to the Green Title – Subdivision of the above lot subject to all buildings having the required boundary clearances from the new boundaries. It should be noted that considerable works will be required to meet this condition."
23 On 16 November 2005 the respondent resolved to reiterate its previous letter of refusal.
24 Following the application for review, dated 12 December 2005, the respondent was invited by the Tribunal, on 29 March 2006, to reconsider its decision under review pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
25 In order to assist this process, the applicant provided to the respondent additional information on so-called "precedents" and other information relating to the possibility of imposing a "restrictive covenant" to limit further development on proposed Lot 251.
26 In a response to the Tribunal, dated 24 May 2006, the respondent advised of its continued opposition to the proposal and addressed the additional information provided by the applicant in this way:
(a) The examples of precedent were approved under significantly different circumstances.
(b) In light of an earlier Tribunal decision the option of imposing a restrictive covenant is not supported.
(c) In order to resolve the existing non-compliance on the subject land, the density coding needs to be changed by way of an amendment to DPS 2.
27 Based on the background to this matter, it is clear that the parties have been unable to narrow their differences over time, and that the issue of subdivision must now be resolved by the Tribunal.
Submissions regarding Lot 9 and Lot 10
28 In the witness statement dated 7 September 2006 of Mr Adam Tree, the owner of Unit 9, he argues:
(Page 10)
- (a) The two houses on Units 9 and 10 were constructed in the 1940s or 1950s whereas the multiple units were built in the early 1980s. All properties were included in a strata scheme under the then strata law with the houses having exclusive use of the common areas around their houses.
(b) Unit 9 was purchased on 6 April 2000 with written confirmation that the owner did not contribute to strata levies, that a contribution was required for common insurance and that the common property enclosed by the surrounding fences to Unit 9 and Unit 10 was for the exclusive use of the respective owners.
(c) The existing Strata Plan 5517 does not comply with the Strata Titles Act 1985 (WA), and based on professional advice there is no reasonable mechanism to resolve the non-compliance.
(d) The house requires extensive renovations along with an existing carport (on common property) and a separate outbuilding comprising a laundry and outside toilet (also on common property).
(e) The owners of the strata plan are not willing to pay for modifications or structural repairs and the owner should not have to seek unanimous strata approval for every modification to the house or outbuildings.
(f) The crumbling asbestos is a possible environmental hazard and the termite damaged beams are potentially dangerous. If the carport was to collapse then the strata would be liable for any injury to persons caused.
(g) The area of Unit 9 (proposed Lot 250) is 437 square metres and under R30 there is no potential for further development. A height restriction is acceptable to allow the owners of Units 1 to 8 to continue to enjoy their views.
(h) As Units 1 to 8 are non-single tier, a merger of land to obtain ownership of the common property is not available.
(i) A Resolution without Dissent was signed by all 10 owners agreeing to the houses separating from the strata plan and pursuing Green Title.
29 In the witness statement of Josephine Nielson, dated 8 September 2006, she makes a number of points already covered in [28]
(Page 11)
- above. However, additional comments or points of clarification are also included:
(a) Mr and Mrs Nielson are the owners of Unit 10 (proposed Lot 251). They purchased the land on 6 November 1997 on the understanding that they need never contribute to strata levies but were obliged to contribute to common insurance.
(b) Strata Plan 5517 is a unique strata scheme in that it neither conforms to DPS 2 or the Strata Titles Act 1985. In order to address outstanding maintenance and day to day running of the non-conforming strata plan, the owners, under a Resolution without Dissent, agreed to excise Units 9 and 10 from the strata scheme, subject to a covenant restricting their building height to an AHD of 18.5 metres.
(c) The house requires modernisation and the outbuilding (laundry and outside toilet) is crumbling. As owners of the inner space and exclusive users of the bricks, there is a requirement to maintain the property. However, the property needs to be repaired first and the other unit holders would be unwilling to contribute to such repairs as it would be of no benefit to them.
(d) The owners agree to a restrictive covenant being placed on the land to prevent further development of the lot. This is until a more suitable density coding is placed over the site.
"(a) The strata scheme consists of 10 lots with the strata plan registered on 8 November 1977 under the aegis of the Strata Titles Act 1966. Unit entitlement is equal for each lot which does not, in my opinion, properly reflect the appropriate relationship in values between those lots in the rear unit construction and the two original houses fronting Brighton Road.
(b) Because the strata company operates in the category of non single tier, the simpler method of obtaining ownership of common property, the merger of land process, is not available.
(Page 12)
- (c) The strata company has no power to grant you approval to build over any common property. All owners share in the proprietorship of the common property as tenants-in-common in proportion to their respective unit entitlement.
(d) One point to remember is; once you own the buildings and land you do not have the unfettered right to make structural alterations. You must still make application to the strata company but there are restrictions on the other owners as to how they may object."
31 The situation is summarised in the witness statement, dated 6 September 2006, of Mr Simon J Bain, a qualified town planner, on behalf of the applicant. He explains:
"(a) The strata company has no power to grant approval to the owners of the single houses to improve and extend the existing structures on the land which is common property but over which they have exclusive use.
(b) There is no incentive for the other unit owners to contribute the costs of improving the structures on the land which is common property, but over which the owners of the single houses have exclusive control.
(c) The common property (over which the owners of the two single houses have exclusive use) is held by all unit holders as tenants in common in shares proportional to their unit entitlements. Accordingly, even if the owners of the single houses did expend money and improve the structures, the financial benefit of the improvements is not retained solely by them.
(d) Because the strata scheme is a non single tier scheme, under the Strata Titles Act 1985, there is no ability for the owners of the single houses to obtain ownership of the common property over which they have exclusive control."
32 Based on the information before the Tribunal it appears that the owners of Units 9 and 10, and the professional advisors on town planning and strata scheme matters, agree that the strata company has no power to grant approval to build on common property. In other words, the strata
(Page 13)
- company cannot grant approval for building extensions over, or modifications to existing outbuildings, on common property on Units 9 and 10.
33 What is not absolutely clear is a uniform understanding between the parties (the owners of Unit 9 and Unit 10 and the professional advisors) of the rights of both owners to modify the existing residences within the boundary walls. That is to say that providing the modifications do not involve common property, what rights do the owners have to make the modifications?
34 The position taken by the owners is that although they have exclusive use of the inner space and the outer walls, it is their understanding that they require all owners to agree to any major works to be undertaken. Also, that although they are required to maintain their property, the two properties need repair first and it is the cost of those repairs that would have to be met by all strata owners.
35 This is a critical point, and is expressed by Mr Tree in this way:
"The owners of the Strata Plan are of course not willing to pay for any of these required modifications or structural repairs as it would be of great expense and of no benefit to them."
36 However, what appears to have happened is that although competent professional advice has been sought there has been no legal advice, or at least no legal advice available on the papers before the Tribunal, on the rights of the owners of Units 9 and 10 in the circumstances of this case.
The importance of State policy and DPS 2
37 As pointed out in [15] above, the Tribunal is required "to have due regard" to statements of planning policy prepared under s 5AA of the TPD Act. DC 1.1 and DC 2.2 are two such statements.
38 Under DC 1.1 the policy objectives include:
(a) "To ensure that all lots created have regard to the provisions of the relevant local government town planning schemes"; and
(b) "To create lots that are capable of lawful development and, at the same time, ensure that existing lots or the development upon them is not rendered illegal."
(Page 14)
39 In this particular case, the proposed Lots 250 and 251 would accord with the lot size requirements of the R30 coding, but the remaining proposed Lot 252 would not. However, as pointed out in [17(b)] above, the existing strata is, as a whole, already non-compliant with both DPS 2 and the Codes, and subdivision would make proposed Lot 252 even more non-compliant.
40 Under cl 3.2.3 of DC 2.2, there are criteria which must be satisfied before the respondent will consider a variation below the lot size requirements of Table 1 of the Codes. The relevant criteria are:
(a) The minimum lot size variation applies to one lot in the subdivision.
(b) The variation reduces the area of that one lot by no more than 5% of the average lot size specified in Table 1 or elsewhere in the Codes.
(c) The variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than 5% of the average lot size specified in Table 1 or elsewhere in the Codes.
(d) The variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the respondent forms the opinion that it will have a particular beneficial outcome for the community.
41 As pointed out by the respondent in [17(h)] above, the proposal does not meet any of these criteria. This point is not challenged by the applicant.
42 The relevant provisions of DPS 2 include:
(a) Under cl 1.1.6.1 and cl 1.1.6.2 the Codes are to be read in conjunction with the Scheme as if they form part of the Scheme.
(b) Clause 1.1.6.2 provides that, except as otherwise provided for by DPS 2, the use or development of the land shall conform to the Codes.
(c) Clause 1.1.6.4 provides that the density applicable to the land within the area covered by DPS 2 shall be determined by reference to the Codes.
43 All of these provisions refer to the Codes which, along with DC 1.1 and DC 2.2, are policies which the Tribunal is required to have due
(Page 15)
- regard. But it is not bound by them and, as pointed out in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522:
"In several cases it has been held that where a tribunal attaches too much or too little importance to a 'policy' or other relevant consideration, an error of law is not thereby committed."
The matter of precedent
45 The questions of two previous matters being relevant to this case have been raised by the applicant. They refer to WAPC Ref 119349 and WAPC Ref 113703.
46 In the first instance, and based on information before the Tribunal, the former is not comparable but there are some similarities in the latter.
47 In that case (WAPC Ref 113703), the subject land contained a single dwelling and a three storey block of flats comprising 16 units. The proposal was to excise a 2225 square metre lot containing the single house and a 2383 square metre lot containing the 16 units.
48 It appears that the intention was to redevelop the smaller lot with five or six new dwellings at a R30 coding, but the matter under review in that instance did not involve the consideration of internal structural change to buildings, or the use of common property as in this case.
49 The matter of precedent was addressed in Aspen Pty Ltd v State Planning Commission (Unreported, Appeal No 13 of 1988):
"The precedent argument is not usually treated by this tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of developments, should not be a reason why the appeal should be dismissed."
50 The sentiments expressed in [49] above will also apply in this review.
(Page 16)
The matter of a restrictive covenant
51 In a letter, dated 14 July 2006, from the City of Stirling to Mr and Mrs Nielson it stated:
"To ensure proposed Lot 251 did not exceed the current non conforming density, by further developing this site, a restrictive covenant could be imposed to ensure this remained a single dwelling site, until such time as the zoning changed in the area…"
52 The idea of a restrictive covenant in these terms was canvassed in the witness statement of Mrs Neilson [29(d)].
53 In her witness statement of 8 September 2006, Ms Nicole Lucas-Smith, a qualified planner in the Department for Planning and Infrastructure, argues for the respondent:
(a) The use of a restrictive covenant to prohibit further subdivision and/or development on the proposed Lot 251 is not supported on the basis that DPS 2 is the principal planning instrument which governs development in a locality.
(b) Clause 2.3.2.1 of DPS 2 deals with restrictive covenants and provides:
" … a restrictive covenant affecting any land in the Scheme area by which, or the effect of which is that, the number of residential dwellings which may be constructed on the land is limited or restricted to less than that permitted by the Scheme, is hereby extinguished or varied to the extent that it is inconsistent with the provisions of the Residential Design Codes which apply under the Scheme."
(c) Under cl 2.3.2.1 the applicant would not be bound to observe a restrictive covenant which prohibits development on the site which would otherwise be consistent with the Codes and DPS 2.
54 In the view of the Tribunal the following is clear:
(a) The Resolution without Dissent agreed to excise Units 9 and 10 from the strata scheme, subject to a covenant
- restricting the building height to an AHD of 18.5 metres in order to protect the views of the residents in Units 1 to 8.
- (b) Both the applicant and the City of Stirling agree to a restrictive covenant until such time as the zoning is changed.
(c) If at some future date after subdivision the zoning was changed, and development proceeded with the restrictive covenant no longer in place, then the original intent to protect the views of the residents in Units 1 to 8 may be lost in part or whole.
The matter of rezoning
55 In his witness statement, Mr Bain argues that although the subject land is zoned R30 the surrounding land is currently being rezoned to R80 and R160 via Scheme Amendments No 147 and No 148.
56 In her witness statement, Ms Nicole Lucas-Smith argues:
(a) The claims by Mr Bain are incorrect.
(b) The land abutting the subject land and within the immediate locality is R30.
(c) Only land to the west of West Coast Highway has been rezoned to facilitate the redevelopment of the Scarborough Environs Area Study (SEAS) by way of a Special Beach Development zone (Scheme Amendment No 457).
(d) Land to the east of West Coast Highway should be considered in a holistic way as part of a local housing strategy, and facilitated by way of a scheme amendment.
57 The views of the City appear to support the respondent on the question of rezoning beyond the boundaries of the subject land. Their view was expressed in their letter of 14 July 2006 to M & J Nielson:
"As previously advised the City does not support spot rezonings. In this particular case, it would be fairly complex as proposed Lot 251 would require a zoning of R12.5, proposed Lot 250 could remain R30 and Lot 252 would require an R60 zoning to reflect its current density situation."
58 In the view of the Tribunal, the matter can be determined under the current zoning provisions.
(Page 18)
Conclusions
59 The application for review has been lodged by the Owners of Strata Plan 5517, Brighton Road, Scarborough against a decision of the respondent to not approve an application for subdivision of the subject land into three lots of 437 square metres, 812 square metres and 1581 square metres. The proposed smaller lots (Lots 250 and 251) would each contain an existing dwelling and the rear lot (proposed Lot 252) would contain the eight residential units at the rear.
60 In examining the matter, the Tribunal has had regard to the background to the proposal, the principal reasons for subdivision as advocated by the owners of the two single dwellings, together with the existing and relevant State residential policies and DPS. Matters such as a possible rezoning or restrictive covenant to prevent two storey redevelopment on proposed Lots 250 and 251 were also examined along with the matter of precedent.
61 The basis of the submissions from the owners of the two single dwellings is that their respective houses (not on common property) and outbuildings (on common property) require modernisation and/or maintenance and, being the owners of the inner space and external walls of the dwellings, they are required to maintain the property. However, they argue that they will maintain the property once it has been repaired and, understandably, other strata owners would not want to contribute to such repairs which would be of no benefit to them.
62 This is a critical point, but it is argued without conviction with such terminology by Mrs Nielson as:
"It is our understanding that there are no other options for this house, as it requires all owners to agree to any major work to be undertaken."
63 In the view of the Tribunal, legal advice should have been obtained or, if it was, should have been made available to the Tribunal on the rights of the owners to independently make modifications to their dwellings within the confines of the external walls. Also, the argument by Ms Lucas-Smith that the dwelling on proposed Lot 251 could be extended onto common property by way of a development application signed by all strata owners and then, once built, the strata owners could apply for a strata plan re-subdivision remains unanswered.
(Page 19)
64 In other words the argument by the respondent, which has been prepared by the State Solicitor for Western Australia, that there would be no impediment to a building extension within the Strata Titles Act 1985 or Strata Titles General Regulations 1996 (WA) has not been answered by the applicant.
65 In the view of the Tribunal, it would be a relatively simple matter for the respondent, or this Tribunal, to permit subdivision of the subject land to allow the owners of existing Units 9 and 10 to proceed with their proposals, but with the resultant effect of the average lot size of proposed Lot 252 having a variation of some 34% less than the average lot size specified in the Codes. Clearly, the weight of argument would have to be overwhelmingly in favour of the applicant for such a proposal to even be contemplated.
66 In this particular case, it appears that the owners of Units 9 and 10 were aware on purchase that they did not have to contribute to strata levies, were required to contribute to common insurance and had the exclusive use of the common property enclosed by surrounding fences to Units 9 and 10. It also appears that it is only relatively recently that they became aware of the supposed difficulties in extending or maintaining their homes, or modifying the associated outbuildings on common property.
67 The important point here is that all avenues must be explored before the State's community based planning system is contemplated in these circumstances as a tool to resolve the problems of individual landowners.
68 Although the claim is made by the applicant that subdivision is the only solution, the Tribunal, on the evidence before it, remains unconvinced that this is so.
Orders
69 For the foregoing reasons, the orders of the Tribunal are as follows:
1. The application for review is dismissed.
2. The decision under review is affirmed.
(Page 20)
- I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR L GRAHAM, SESSIONAL MEMBER
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