Thio and Western Australian Planning Commission
[2008] WASAT 265
•13 NOVEMBER 2008
THIO and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 265
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 265 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:194/2008 | 25 AUGUST 2008 | |
| Coram: | MR B HUNT (SENIOR SESSIONAL MEMBER) | 12/11/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed | ||
| B | |||
| PDF Version |
| Parties: | GIM HO THIO WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Survey strata Two houses Lake Clifton catchment Proposal inconsistent with Local Planning Strategy, Coastal and Lakelands Planning Strategy and Lake Clifton/Herron Structure Plan Precedent |
Legislation: | Peel Region Scheme Planning and Development Act 2005 (WA) Shire of Waroona Town Planning Scheme No 7, cl 4.14.2(c), cl 4.14.8 |
Case References: | Maxwell and Western Australian Planning Commission [2003] WATPAT 35 WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 |
Orders | 1. The application for review of the Western Australian Planning Commission's decision to refuse subdivision of Lot 4 Newnham Road, Lake Clifton is dismissed and therefore the decision of the respondent is affirmed. |
Summary | This matter involved an application for review of the refusal of a subdivision application of Lot 4 Newnham Road, Lake Clifton into two lots by means of a survey strata.,The proposed survey strata subdivision would create lots with areas of 2.0 hectares and 3.85 hectares.,The subject land is zoned 'Rural' in the Peel Region Scheme (PRS) and 'Rural 3B Coastal Highway' in the Shire of Waroona Town Planning Scheme No 7 (TPS 7).,The subject land is within the catchment for Lake Clifton where management criteria have been prepared by the Environmental Protection Authority and published in their Guidance No 28 (EPA 28) where an overall 5 hectare lot size average is required. This density is deemed appropriate to protect the environmental sensitivities of the area.,The subject land contains two houses and the Shire of Murray have granted approval for one of the houses to be, in effect, 'relocated' to a more central position, and the subdivision is designed to facilitate this new house.,The Tribunal finds that the existing planning instruments reflect the environmental issues in the area and that the proposed subdivision, if supported, would erode those considerations. The two houses do not constitute grounds for approval, and there are environmental concerns for the area of an inappropriate precedent.,The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : THIO and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 265 MEMBER : MR B HUNT (SENIOR SESSIONAL MEMBER) HEARD : 25 AUGUST 2008 DELIVERED : 13 NOVEMBER 2008 FILE NO/S : DR 194 of 2008 BETWEEN : GIM HO THIO
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Survey strata - Two houses - Lake Clifton catchment - Proposal inconsistent with Local Planning Strategy, Coastal and Lakelands Planning Strategy and Lake Clifton/Herron Structure Plan - Precedent
Legislation:
Peel Region Scheme
Planning and Development Act 2005 (WA)
Shire of Waroona Town Planning Scheme No 7, cl 4.14.2(c), cl 4.14.8
(Page 2)
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr K Lance (Acting as Agent)
Solicitors:
Applicant : Self-represented
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Maxwell and Western Australian Planning Commission [2003] WATPAT 35
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
(Page 3)
Summary of Tribunal's decision
1 This matter involved an application for review of the refusal of a subdivision application of Lot 4 Newnham Road, Lake Clifton into two lots by means of a survey strata.
2 The proposed survey strata subdivision would create lots with areas of 2.0 hectares and 3.85 hectares.
3 The subject land is zoned 'Rural' in the Peel Region Scheme (PRS) and 'Rural 3B Coastal Highway' in the Shire of Waroona Town Planning Scheme No 7 (TPS 7).
4 The subject land is within the catchment for Lake Clifton where management criteria have been prepared by the Environmental Protection Authority and published in their Guidance No 28 (EPA 28) where an overall 5 hectare lot size average is required. This density is deemed appropriate to protect the environmental sensitivities of the area.
5 The subject land contains two houses and the Shire of Waroona have granted approval for one of the houses to be, in effect, 'relocated' to a more central position, and the subdivision is designed to facilitate this new house.
6 The Tribunal finds that the existing planning instruments reflect the environmental issues in the area and that the proposed subdivision, if supported, would erode those considerations. The two houses do not constitute grounds for approval, and there are environmental concerns for the area of an inappropriate precedent.
7 The application for review is dismissed.
Introduction
8 This is an application for the review of a decision of the respondent to refuse the application for the survey strata subdivision of Lot 4 Newnham Road, Lake Clifton into two lots of 2.0 hectares and 3.85 hectares.
9 The respondent refused the subdivision application on 29 April 2008 for the following reasons:
(Page 4)
- 1. The Commission is not prepared to approve the subdivision as the resultant lot sizes would be below the lot size requirements indicated by:
(i) the draft Shire of Waroona Local Planning Strategy;
(ii) the Coastal and Lakelands Planning Strategy; and
(iii) the Lake Clifton / Herron Structure Plan.
2. Approval to the subdivision would create an undesirable precedent for the further subdivision of other lots of a similar size in the 'Rural' zone of this locality.
10 The application for subdivision was referred to the Shire of Waroona, Western Power, Department of Environment and Conservation, Main Roads Western Australia and Water Corporation.
11 The Shire did not support the application for the following reasons:
a. The Shire of Waroona Draft Local Planning Strategy specifies the minimum lots size for the 'Rural Smallholdings' Zone as five hectares. The proposed subdivision will effectively create two lots 2.0 ha and 3.85 ha.
b. The subject land falls within the Lake Clifton Catchment area whereby an average lot area of five hectares is prescribed. The proposed subdivision is not consistent with the objectives or provisions of the catchment area.
c. The Shire of Waroona will not entertain a variation of the minimum lot size of five hectares for Rural Smallholdings under the Draft Local Planning Strategy so as not to create an undesirable precedent for future subdivision. Allowing such variation may encourage further ad-hoc fragmentation of rural land.
d. Council is not convinced that the Residential Design Codes of Western Australia (RCodes) are applicable under the Shire of Waroona Town Planning Scheme No 7 to the 'Rural 3B' Zoning of the subject lot and can be used to justify subdivision of land.
e. In accordance with Clause 4.14.2 (c) of the Scheme, Council is not satisfied that the merit of the application is such that the existence of Non-conforming Land Use right should give rise to a successful application for subdivision.
12 The other agencies have no objections, subject to conditions.
(Page 5)
The proposed subdivision
13 The application for the survey strata subdivision would create two lots by a battleaxe configuration. The eastern lot would be 2 hectares in area and contain an existing house, whilst an existing second house on the lot would be removed and a new house located centrally on the 3.85 hectare battleaxe lot. The new house would be approximately 300 metres from Lake Clifton and approximately 250 metres from Newnham Road.
14 The battleaxe access would be 7 metres wide on the northern boundary.
The site and locality
15 The site extends between Newnham Road and Lake Clifton and is one of a series of similar shaped lots to the west of Old Coast Road. There are rural living estates to the east of Old Coast Road.
16 The planning application indicates that there is scattered vegetation across the site and two dams which will remain.
Planning framework
17 The land is zoned 'Rural' in the PRS and 'Rural 3B Coastal Highway' in TPS 7. TPS 7 does not provide any guidance on lot size but does at cl 4.14.2(c) provide that in all rural zones:
Approval to develop an additional dwelling or dwellings shall not be grounds for obtaining separate titles of ownership of the two dwellings and any future subdivision application will be treated on its own merits by Council and the Commission.
18 Clause 4.14.8 of TPS 7, 'Rural 3A & 3B Coastal & Coastal Highway Zones' states:
Council's objective will be to ensure continuation of appropriate rural activities which are consistent with protection of the coastal environment, the ecology of the Yalgorup National Park, the landscape of the environs of Old Coast Road and the traffic management requirements of that road …
19 State Planning Policy No1 (SPP 1) and Development Control Policies (DC) and in particular DC 1.1 and DC 3.4 provide that, in DC 3.4:
(Page 6)
- It is WAPC policy that the subdivision of rural and agricultural land for closer settlement (ruralresidential and ruralsmallholdings) and more intensive agricultural uses should be properly planned through the preparation of regional and local planning strategies and provided for in local planning schemes prior to subdivision.
The Coastal and Lakelands Planning Strategy (DawesvilleBinningup) 1999 (the CLPS)
20 In the CLPS, the land is within the Lake Clifton catchment, and further, in the planning strategy and structure plan it is depicted as Rural 3 Highway Environs. Clause 6.2.5 states that:
Some potential exists for subdivision and, in this respect, a minimum lot size of 5ha should apply, with lot size variation which reflects, among other things, environmental considerations or strata titled clusters. Smaller lots may be considered for specific tourist or light commercial uses subject to approval by the relevant local government and the Western Australian Planning Commission.
21 The CLPS in its executive summary recommend a specific 'Highway Environs' zone which would include the subject land and states that:
Within this zone a minimum lot size of five hectares should also apply and controls relating to lake setbacks, protection of fringing vegetation, and enhancement of landscape values will be required.
22 The Draft Shire of Waroona Local Planning Strategy 2008 (LRS) has been advertised but not yet endorsed by the respondent. It states in cl 8.2.6 that the LRS would:
… allow subdivision of the larger lots along the Old Coast Road into small holding lots with a minimum size of 5 hectares in conformity with the Environmental Protection Authority Guidance No.28 and the Coastal and Lakelands Strategy.
- The subject land is depicted as 'Rural smallholdings', being part of 'Precinct G' where at cl 3.2.7 it states:
There is opportunity for subdivision into lots with a minimum of 5 hectares as per the requirements of the 'Highway Environs' zone in the Coastal and Lakelands Planning Strategy.
23 The Guidance Statement was prepared by the EPA for the protection of the Lake Clifton catchment, within which the subject land is located. EPA GS 28 seeks to develop criteria to 'limit the environmental effects of changes to land use on private land within Lake Clifton's catchment in
(Page 7)
- order to conserve the thrombolites and the environmental processes which enable the thrombolites to continue to exist'. The EPA adopted management criteria, including:
For any subdivision within the catchment, the average lot size should not be less than 5 hectares. In achieving the average lot size, no lot should have an area of less than 2 hectares. Further subdivision of the same land, or part thereof, should not be permitted where this would result in an average lot size less than the 5 hectares as originally determined.
• the average is applied to all new developments, with each new development maintaining the 5 hectare average; and
• planning controls are in place to prevent further subdivision of new lots into smaller lots, reducing the 5 hectare average by increments. Where these planning controls cannot be put in place, all new lots should be at least 5 hectares.
The issues
25 The following issues arise for determination in this review:
a) the extent to which the various planning instruments are valid to this application;
b) the relevance of the existence of two houses on the land and the recent approval from the Shire of Waroona for one of those houses to be repositioned;
c) whether precedent is relevant in determining this application; and
d) if the proposed subdivision were approved, what conditions should be applied?
The extent to which the various planning instruments are valid to this application
26 Mr Ken Lance, a senior project planner with the Department for Planning and Infrastructure, gave evidence for the respondent. He considered that the planning instruments were valid to the application as they had their basis in the protection of the Lake Clifton
(Page 8)
- catchment and the need to manage conditions appropriate to the thrombolites in particular, which are very susceptible to changes in water quality.
27 Mr Lance considered that impacts such as:
a) clearing of natural vegetation (such as for roads, service infrastructure, building envelopes, fence lines, firebreaks);
b) introduction of uses such as horticulture; and
c) residential uses with gardens and paved areas allowing run off from vehicle standing areas and the like,
- are minimised with the established lot density limit of 5 hectares and that while the subject land already has two houses, the precedent of a subdivision approval is 'extremely undesirable'.
28 The applicant contends that the lot sizes referred to in the various planning instruments are to some extent contradictory as they encompass 5 hectares as both a minimum and as an average.
29 The applicant further considers that the references to lot sizes are for the guidance of decisionmakers rather than prescriptive and cites Maxwell and Western Australian Planning Commission [2003] WATPAT 35 (Maxwell) as supporting that view.
30 The Tribunal is of the view that the decision in Maxwell is certainly different to the current application in that the subject land is a different zone, relates to a subdivision guide plan, and the proposed lot sizes complied with both the minimum and average criteria. The Tribunal further considers that the planning instruments are stronger than guidelines, and are founded in valid environmental considerations.
31 The EPA GS 28 addresses development in a broad area around Lake Clifton, and as is explained in EPA B 864, accepted the submission of the Western Australian Planning Commission that it needed to provide some flexibility in lot size determination.
32 Subsequent planning, in particular the Lake Clifton/Herron Structure Plan (LCHSP), has refined that fringing land into Rural Living (2 hectare minimum, 5 hectare average) and Rural Small Holdings (5 hectare minimum and average).
(Page 9)
33 The Tribunal is of a view that the sequence over time explains the lot size qualification in the various planning instruments, and that the subject land is clearly in an area where the nominated minimum in the CLPS, LRS and LCHSP is 5 hectares.
34 The Tribunal does consider that the various planning instruments are valid to this application.
The relevance of the existence of two houses on the land, and the recent approval from the Shire of Murray for one of those houses to be repositioned
35 The Council of the Shire of Waroona at its Ordinary Council Meeting of 27 November 2007 granted approval for a 'Grouped Dwelling' subject to conditions. The planning report identified that the existing additional dwelling on the site may be deemed to have nonconforming use rights.
36 The report considered that the proposed replacement second house would be of significantly better quality and location and therefore the proposal '… may be considered to be an improvement on the current use and nature of development present on Lot 4'.
37 The officer's report went on to state that '… the proposed dwelling is more consistent with the orderly and proper planning of the locality in comparison to the status quo'.
38 Mr Lance in his evidence raised doubt regarding the appropriateness of the Council's interpretation of the nonconforming use provisions of TPS 7. The Tribunal is not required to consider this matter.
39 The respondent relies on cl 4.14.2(c) of TPS 7 as a basis for arguing that the existence of two houses does not of itself provide grounds for subdivision. The applicant contends that cl 4.14.2(c) of TPS 7 does not apply in this situation as second dwellings in the context of 4.14.2 are:
i) for primary rural (farming) activities;
ii) only relevant from the application of TPS 7, and the second dwelling predates that; and
iii) the buildings enjoy nonconforming use rights.
40 The Tribunal considers that the principle outlined in cl 4.14.2(c) of TPS 7 is appropriate to be considered. However, as the applicant stated in
(Page 10)
- his evidence, the matter of any subdivision application must 'be treated on its own merits by Council and the Commission'.
41 The other relevance of the two houses is that they exist (or are approved to exist) and therefore the reality of development is in place.
42 The respondent acknowledges this aspect of the application; however, contends that the issue of precedent now becomes relevant.
43 The Tribunal agrees with the applicant that the approval for two houses on the subject land is a relevant planning consideration but not of itself, grounds for an approval.
Whether precedent is relevant in determining this application
44 The respondent contends that approval of the application involves 'an extremely undesirable precedent, which would be adverse to the surrounding environment, the waters of Lake Clifton and the visual or landscape character'.
45 Information was provided regarding lot sizes in the vicinity to demonstrate that the existing lot size is close to both the mean and median lot size for the 14 lots nearby extending north from the Yalgorup National Park.
46 The respondent considers that if a subdivision precedent were established, then at least 14 similar lots may also be so developed and the cumulative effects could be detrimental to Lake Clifton and its environs.
47 The applicant considers that the precedent matter is exaggerated as of the nearby lots, only 10 lots have areas in excess of 4 hectares, hence providing for 2 hectare subdivision, and none have more than one approved dwelling.
48 The Tribunal agrees with the applicant that precedent is not of itself a valid reason for the refusal of an application and that each matter needs to be treated on its merits and regard given to the particular circumstances of the site.
49 The Tribunal does, however, consider that the circumstances in this application, namely, the cumulative effects on Lake Clifton make the matter of precedent valid.
50 The Tribunal further considers that the precautionary principle expressed in WA Developments Pty Ltd and Western Australian
(Page 11)
- Planning Commission [2008] WASAT 260 is also relevant in this matter and, as noted at [44], the precautionary principle permits the taking of preventative measures without having to wait until the reality or seriousness of the threats become fully known.
Conclusion
51 The Tribunal considers that the intent of the various planning instruments, founded as they are in the environmental protection considerations of Lake Clifton, need to be supported in this instance.
52 The presence of two houses and, in effect, an established development does not provide adequate reason to approve the application and risk the intent of the planning structure in the area.
53 Consideration of conditions of approval is not relevant as the review is not supported.
54 Based on the preceding considerations, it is the conclusion of the Tribunal that the application for review be dismissed. The respondent's position is affirmed.
Order
1. The application for review of the Western Australian Planning Commission's decision to refuse subdivision of Lot 4 Newnham Road, Lake Clifton is dismissed and therefore the decision of the respondent is affirmed.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR B HUNT, SENIOR SESSIONAL MEMBER
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