Undervan Holdings Pty Ltd and Western Australian Planning Commission
[2012] WASAT 49
•12 MARCH 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: UNDERVAN HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 49
MEMBER: MR J JORDAN (MEMBER)
HEARD: 12 OCTOBER 2011
LAST DOCUMENTS FILED 2 DECEMBER 2011
DELIVERED : 12 MARCH 2012
FILE NO/S: DR 45 of 2011
DR 46 of 2011
BETWEEN: UNDERVAN HOLDINGS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Two separate subdivision applications for same lot One application to subdivide the lot into two Second application to subdivide the lot into 37 rural smallholding lots Refusal of both applications Whether proposed subdivisions would generally be in accordance with an endorsed subdivision guide plan Objective of the rural smallholding zone Orderly and proper planning Battleaxe lots Emergency access for fire escape Shape of building envelopes
Legislation:
Interpretation Act 1984 (WA), s 18
Planning and Development Act 2005(WA), s 251(1)
Shire of Northam Town Planning Scheme No 3, cl 2.7.1(a), cl 4.2, cl 5.20, cl 5.20.1, cl 5.20.2(b), cl 5.20.3, cl 5.20.4, cl 5.21, cl 5.21.1, cl 5.21.5, Pt 5, Sch 11
State Administrative Tribunal Act 2004 (WA), s 51(1)
State Administrative Tribunal Rules 2004 (WA), r 15(1)
Transfer of Land Act 1893 (WA), s 129BA, s 136C
Result:
DR 45 of 2011:
Application for review dismissed
Refusal to grant approval for subdivision of Lot 6468 Oyston Road, Bakers Hill into two lots affirmed
DR 46 of 2011:
Conditional approval granted for subdivision of Lot 6468 Oyston Road, Bakers Hill into 37 lots
Category: B
Representation:
Counsel:
Applicant: Mr I McKellar (Acting as Agent)
Respondent: Ms B Allen
Solicitors:
Applicant: Civil Technology (Civil Engineers, Project Managers)
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Randall and Town of Vincent [2005] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Two different applications were made to subdivide an 80 hectare rural smallholding zoned lot at Bakers Hill. One application was for subdivision of the lot into two lots of 34.4 hectares and 46.4 hectares respectively. The second application was to subdivide the lot into 37 lots of about 2 hectares each plus roads, with three lots being in a battleaxe configuration.
The Western Australian Planning Commission refused both proposed subdivisions because it considered they were not generally in accordance with a subdivision guide plan adopted by the local government and endorsed by the Western Australian Planning Commission.
The Tribunal found that the proposed 37 lot subdivision would generally be consistent with the subdivision guide plan prepared for the site, would satisfy the objective for the rural smallholding zoning of the site and would be consistent with orderly and proper planning.
The Tribunal further found that the proposed two lot subdivision would not be consistent with the subdivision guide plan, with the objective for the rural smallholding zone or with the orderly and proper planning of the locality.
The Tribunal dismissed the application for review of the refusal of the two lot subdivision. The Tribunal granted conditional approval for the proposed 37 lot subdivision of the site.
Introduction
These proceedings involve two separate applications brought by Undervan Holdings Pty Ltd (applicant) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of respective decisions of the Western Australian Planning Commission (Commission or respondent) to refuse two different applications to subdivide Lot 6468 Oyston Road, corner Cook Road, Bakers Hill (site).
The two applications for review were:
1)DR 45 of 2011: application for review of the refusal of the Commission of an application to subdivide the site into two lots of 34.4 hectares and 46.4 hectares; and
2)DR 46 of 2011: application for review of the refusal of the Commission of an application to subdivide the site into 37 lots each of about 2 hectares plus roads.
At a directions hearing on 25 February 2011 the Tribunal ordered that, pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA), the applications for review were to remain separate proceedings but were to be heard together, and the evidence in one was to be evidence in the other.
Site and the locality
The site has an area of 80.7 hectares and is almost square in shape with a frontage of 885.94 metres to Cook Road at the northern boundary, and about 886 metres to Oyston Road on the western boundary. The site has predominantly been cleared for agricultural pursuits with the exception of small pockets of mature vegetation, mostly near the eastern boundary, and vegetation along Coates Gully, which is a watercourse that dissects the site running from the northwestern corner to just south of, approximately, the centre of the eastern boundary of the site. Coates Gully is a small intermittent tributary of Wooroloo Brook which eventually runs into the Avon River.
Oyston Road has a bitumen carriageway one vehicle wide with gravel verges in a 20 metre wide road reserve. Cook Road also has a 20 metre road reserve with a bitumen carriageway wide enough for two vehicles.
To the north, west and south of the site are rural lots ranging in size from 11 hectares to 289 hectares. An approval has been granted, but subdivision work has not been completed, for the subdivision of the lot to the west into 14 lots ranging in size from 2 hectares to 6.6 hectares. Adjoining the site to the east is a subdivision containing 65 rural smallholding lots ranging in size from 2 hectares to 5.2 hectares.
The respondent advised that lots within a 5 kilometre radius of the Bakers Hill townsite are progressively being rezoned to accommodate rural smallholding and rural residential sized lots, and the locality of the site is characterised by the gradual influx of these additional landholdings.
Planning framework
The site is within the rural smallholding zone of the Shire of Northam Town Planning Scheme No 3 (TPS 3). Clause 4.2 of TPS 3 sets out objectives for the zones, and for the rural smallholding zone states:
To provide for residential accommodation in association with rural pursuits on smaller land holdings. This zone provides for home businesses, cottage industries, home offices and activities in combination with conservation of remnant vegetation in accordance with the capability of the land.
Part 5 of TPS 3 sets out 'General Development Requirements' for zones and cl 5.20 is concerned with the rural smallholding zone.
Schedule 11 of TPS 3 has the heading 'Rural Smallholding Zones'. Item 13 in Sch 11 has the land description 'Lot 6468 Oyston Road, Bakers Hill' and lists 'Conditions' which can be summarised as:
1.Subdivision shall generally be in accordance with a subdivision guide plan as adopted by the local government and endorsed by the Western Australian Planning Commission and any approved modification thereto.
2.Minimum lot size shall be two hectares.
3.The subdivider shall prepare and implement an environmental management plan … The plan shall include:
a)Vegetation protection …
b)Drainage, nutrient and salinity management; and
c)A 'Watercourse Protection Area' …
4.All buildings and on-site effluent disposal envelopes shall be:
a)Shown on the subdivision guide plan;
b)Located to avoid any native vegetation or any area recognised for protection or rehabilitation …
c)Located to ensure on-site effluent disposal meets the minimum setback requirements from watercourses and wetlands.
5.Landscape buffers are to be provided and maintained along Oyston Road to preserve the rural amenity …
6.The subdivider shall prepare a Fire Management Plan …
7.The permissibility of uses shall be:
• Single House (P)
• Home Occupation (D)
• Rural Pursuit (D)
All other uses are not permitted.
8.The application for a rural pursuit that involves the stabling and keeping of stock (includes horses) is to be accompanied by a stock management plan …
9.These conditions are to be read in conjunction with the Scheme requirements for the Rural Smallholding zone. Where conflicts exist, the conditions of this Schedule shall prevail.
On 8 February 2011 Amendment 20 to TPS 3 was gazetted and this inserted into TPS 3 as cl 5.21 'Structure Plans'. Clause 5.21.1 states:
5.21.1The [l]ocal government or the Western Australian Planning Commission may require the preparation of a structure plan prior to considering a subdivision or development proposal for any area or zone in the scheme.
5.21.2Subdivision and development should generally be in accordance with an approved structure plan.
5.21.3A departure from, or alteration to, a structure plan may be permitted if the local government and Western Australian Planning Commission considers the proposed departure or alteration to be minor in nature and it will not prejudice the future subdivision and development of the area.
…
A subdivision guide plan for the site was adopted by the Shire of Northam (Shire) on 16 December 2009 and endorsed by the Commission on 16 June 2010. This A3 sized document includes a subdivision layout for 31 lots showing lot sizes, dimensions and building envelopes, a stream protection area for Coates Gully, a landscape buffer along the Oyston Road frontage and subdivisional roads. The subdivisional roads include an eastwest road one lot removed from the southern boundary, a culdesac south from the eastwest road to the southern boundary and a northsouth subdivisional road from the eastwest road north to Cook Road. The subdivision guide plan also includes, what the respondent called, a link road that, north of Coates Gully, extends westward from the northsouth road then curves northward to a junction with Cook Road.
In addition to the subdivision layout, the subdivision guide plan sheet includes nine conditions repeated from item 13 of Sch 11 of TPS 3.
The respondent has adopted Development Control Policy DC 1.1 'Subdivision of Land' General Principles (DC 1.1), the relevant provisions of which are the subject of discussion below.
The Commission, the Department of Planning and the Fire and Emergency Services Authority Western Australia have together published Planning for Bush Fire Protection Guidelines (2nd ed, May 2010) (PBFP guidelines). The PBFP guidelines were published as a foundation for fire risk management planning at a community and land development level in Western Australia.
Appendix 2 of the PBFP guidelines sets out performance criteria and acceptable solutions for fire risks associated with subdivision within rural areas. Under Element 2 'Vehicular Access' the intent is safe access and egress by vehicles in the event of a fire. Under 'Performance Criteria' it states:
P2
The internal layout, design and construction of public and private vehicular access in the subdivision/development allows emergency and other vehicles to move through it easily and safely at all times.
Under 'Acceptable Solutions', one example of meeting the Performance Criteria is:
A2.1 Two Access Routes
Two different vehicular access routes, both of which connect to the public road network, are available to all residents/the public at all times;
And
A2.2 Public Roads
Public roads meet the following requirements:
•minimum trafficable surface: 6 metres[.]
…
And
A2.4 Battle axes
Battle axe access legs meet the following requirements:
•maximum length: 600 metres[;]
•minimum width: 6 metres[; and]
•minimum trafficable surface: 4 metres[.]
…
And
A2.6 Emergency access ways
Emergency access ways, providing alternative links to public roads during emergencies meeting the following requirements
•minimum trafficable surface: 6 metres
•horizontal clearance: 6 metres
•vertical clearance: 4 metres
•…
•minimum weight capacity: 15 tonnes
•…
•must be signposted.
The PBFP guidelines explain that it is essential that the public and fire services appliances have an alternative access to public roads so that residents can evacuate and fire services can enter when one route is blocked by fire.
The Shire has adopted Local Planning Policy 1.16 'Battleaxe Subdivision' (LPP 1.16), which is relevant to the rural smallholding zone. LPP 1.16 provides that: '[e]xtensive use of the battleaxe configuration … is not favoured' and refusal shall be recommended. One reason for recommending refusal is:
(a)Creation of this type of subdivision results in not being able to provide for twoway access and egress to residents[.]
LPP 1.16 says that if the Commission should approve a battleaxe subdivision, a minimum requirement would be a 6 metre wide sealed and drained access leg with truncation at the front property boundary to allow for access sightlines.
Proposed subdivisions
DR 46 of 2011 37 lots
The subdivision plan originally before the Tribunal was dated 7 April 2011. At the hearing, by consent of the parties, the Tribunal granted leave to the applicant to replace that subdivision plan with an amended plan dated 11 October 2011 pursuant to r 15(1) of the State Administrative Tribunal Rules 2004 (WA).
Proposed in DR 46 of 2011 is a subdivision to create 37 lots plus roads. Thirtyfive of the lots would be between 2 hectares and 2.1 hectares, and two lots would be about 2.8 hectares. Each lot would have a designated building envelope of 2,000 square metres. Coates Gully and its fringing vegetation would not be in a separate lot or reserve. The watercourse would traverse proposed lots and would be the subject of a watercourse protection area.
The proposed subdivision would include three new 20 metre wide subdivisional roads. One road would run eastwest between Oyston Road and the eastern boundary of the site, one lot depth removed from the southern boundary. About 420 metres from Oyston Road a culdesac about 180 metres long would extend south from the new eastwest road to the southern boundary of the site.
About 530 metres from Oyston Road would be a subdivisional road running north from the eastwest road to a junction with Cook Road about 150 metres from the eastern boundary of the site.
The subdivision includes three battleaxe lots. Two of these battleaxe lots, Lot 120 and Lot 121, would include sections of, and be to the north of, Coates Gully. The two lots would have adjacent 4 metre wide access legs to Cook Road with reciprocal rights of access easements, and would share a 6 metre wide fire escape easement eastward across neighbouring Lot 135 to the northsouth subdivisional road.
The third battleaxe lot, Lot 126, would be south of Coates Gully and generally to the rear of the lot that would contain the existing house and sheds fronting Oyston Road. The battleaxe lot would have a 6 metre wide access leg to Oyston Road and a 6 metre wide fire escape easement southward across Lot 131 to the eastwest subdivisional road.
The proposed subdivision includes 3 metre widening of both Cook Road and Oyston Road road reserves. The applicant said this was to enable the installation of services without disturbing existing verge vegetation.
DR 45 of 2011 2 lots
This application proposed subdividing the site into two lots, namely, Lot 1 of 34.4 hectares and Lot 2 of 46.4 hectares. Proposed Lot 1 would be in two parts tied across Lot 2 and would be equivalent in shape and area to what would become, if DR 46 of 2011 were to proceed, the total area of all but one of the lots that would have road frontage to Cook Road and Oyston Road, the three battleaxe lots and the beginning sections of the new subdivisional roads serving the future internal lots.
The area around the existing house and outbuildings fronting Oyston Road would be included in Lot 2 and this would divide Lot 1 into two parts. The larger portion of Lot 1, about 28 hectares, would be at the northern and northwestern road frontage of the site, with about 6.4 hectares at the southwest road frontage of the site.
Proposed Lot 2, about 46.16 hectares, would comprise the remainder 'internal' area of the site with only a 121 metre road frontage to Oyston Road at the area around the house and outbuildings.
The refusals
The two subdivision applications were refused for essentially the same reasons, which can be summarised as:
1)The application is inconsistent with TPS 3 because it would be a significant departure from the subdivision guide plan adopted by the local government and endorsed by the Commission.
2)The application is inconsistent with DC 1.1 because it is not supported by a subdivision guide plan as required by TPS 3 and would be prejudicial to the orderly and proper planning of the locality.
3)Approval for the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
Issues
The applicant identified as an issue:
1) Whether item 13 of Sch 11 of TPS 3 has any application to the assessment of the proposed subdivisions.
The parties agreed that if item 13 of Sch 11 of TPS 3 has application to the proposed subdivisions then issues to be considered were:
2)Whether the proposed subdivisions would generally be in accordance with the subdivision guide plan as required by condition 1 of item 13 of Sch 11 of TPS 3;
3)Whether the proposed subdivisions would be consistent with the objective for the rural smallholding zone and other requirements of item 13 of Sch 11 of TPS 3;
4)Whether the proposed subdivisions would be consistent with DC 1.1 in terms of the orderly and proper planning for the site.
It was common ground that other areas of concern originally listed by the respondent still relevant to the current subdivisions plan might be dealt with by conditions if either or both of the subdivisions were allowed. These included preparation of plans for fire management and environmental management, landscape buffers, access leg truncations and access easements.
The parties' respective statements of issues, facts and contentions, and the witness statements of the experts called by the parties, had addressed other matters in dispute before the filing of the plan dated 11 October 2011. The Tribunal decided that, rather than adjourn the hearing to have the parties and witnesses redraft their documents, or spend considerable time identifying and deleting from the documents the passages specific to the items no longer in issue, the documents could be put into evidence, with consideration given to those passages still relevant to the issues remaining between the parties.
Discussion
Issue 1 whether item 13 of Sch 11 of TPS 3 has any application to the assessment of the proposed subdivisions
The applicant cited cl 5.20.1 of TPS 3 which states:
Development in the Rural Smallholding zone shall comply with the objectives for that zone as outlined in Part 4 and any other requirements as laid out in Schedule 11.
It was the applicant's submission that, by virtue of the wording of cl 5.20.1, item 13 of Sch 11 only comes into operation where 'development' of land is considered for approval. There were no 'triggers' in TPS 3 to bring item 13 of Sch 11 into operation when considering an application to subdivide. The applicant said that if someone proposing subdivision was reading TPS 3 and read cl 5.20.1, they would not turn to the provisions in Sch 11.
In support of this submission, the applicant cited Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark). The Tribunal, in Landpark at [23] observed:
In contrast to the situation in every other Australian planning jurisdiction [citation deleted], 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 …
Under cl 2.7.1(a) of TPS 3 'development' has the same meaning as in the PD Act.
The respondent said that the conditions contained in item 13 of Sch 11 of TPS 3 relate to issues to be taken into account when considering a subdivision application for the site. Item 13 of Sch 11 would be rendered meaningless if it were to operate only in the consideration of a development application and to be ignored when subdivision of the site was proposed. This cannot have been the intention of the drafters of TPS 3.
The respondent said that cl 5.20.1, and any other relevant clause of TPS 3, must be read in conjunction with the conditions of item 13 of Sch 11 and, as provided at condition 9 of item 13 of Sch 11, where conflict exists, the conditions of the Schedule will prevail.
The Tribunal is of the opinion that item 13 of Sch 11 of TPS 3 is relevant to the assessment of the proposed subdivision. The applicant made the comment that it might be 'bad drafting', but went on to rely on the literal interpretation of cl 5.20.1 of TPS 3 in isolation. The Tribunal considers that TPS 3 might be more clear if better drafted, but the absence of the word 'subdivision' in cl 5.20.1 does not mean that other references to subdivision in a rural smallholding zone under TPS 3 are to be ignored. By s 18 of the Interpretation Act 1984 (WA) the Tribunal is obliged to consider:
… a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote the purpose or object.
The Tribunal's approach to statutory interpretation has consistently been to ascertain the legislative intention by reference to the language of the instrument viewed as a whole: Randall and Town of Vincent [2005] WASAT 129 at [75] [77].
The Tribunal does not accept that cl 5.20.1 of TPS 3 should be read in isolation. When read as a whole, the Tribunal interprets TPS 3 as providing for the rezoning of particular parcels of land to rural smallholding with the objective at cl 4.2 of TPS 3 of providing residential accommodation in association with rural pursuits on 'small landholdings'. When a rural smallholding zone is created by amending TPS 3 an item is added to Sch 11 to determine the pattern and standard of residential accommodation and associated pursuits.
Item 13 of Sch 11 of TPS 3 sets out conditions for the rural residential use of the site. This includes the creation of lots for residential accommodation generally in accordance with a subdivision guide plan and with particular subdivision and development standards. The proposed subdivision, and ultimately the development of any lots created, is to be considered in light of the conditions set out at item 13 of Sch 11 of TPS 3 as well as the other relevant provisions of TPS 3.
Issue 2 whether the proposed subdivisions would generally be in accordance with the subdivision guide plan as required by condition 1 of item 13 of Sch 11 of TPS 3
Condition 1 of item 13 of Sch 11 of TPS 3 states:
Subdivision shall generally be in accordance with a subdivision guide plan as adopted by the local government and endorsed by the Western Australian Planning Commission and any approved modification thereto.
Thirtyseven lot subdivision
The respondent said the proposed 37 lot subdivision departed from the subdivision guide plan in the following respects:
•37 lots in lieu of 31 lots;
•proposed Lot 120 and Lot 121 Cook Road and Lot 126 Oyston Road being in a battleaxe configuration with a 6 metre wide emergency access track in lieu of no battleaxe lots;
•proposed Lot 120 and Lot 121 Cook Road sharing a 6 metre wide battleaxe access right of carriageway easement for 153 metres;
•triangular and elongated rectangular building envelopes that are impractical for building purposes;
•internal link road missing;
•four points of connectivity in lieu of five; and
•six lots having direct access onto Cook Road in lieu of one.
It was the applicant's submission that a subdivision guide plan is just that, a guide. It forms the basis from which to 'launch into' an application to subdivide. It is not fatal to depart from a subdivision guide plan.
The applicant argued that the proposed subdivision would generally be in accordance with the subdivision guide plan. The proposed departures from the subdivision guide plan would not affect environmental outcomes because there would still be a watercourse protection area over the creek, an environmental management plan would still protect remnant vegetation, and there would be a landscape buffer on Oyston Road. The applicant emphasised that the proposed subdivision would satisfy the 2 hectare minimum lot size requirements of the subdivision guide plan, and each lot would have a building envelope of 2,000 square metres.
The applicant pointed out that the subdivision would have two connecting points to the existing road system in lieu of three, and the two road connections to neighbouring lots would be maintained. The subdivision would have the required fire management plan with access legs to the battleaxe lots sealed and drained, and the escape routes for those lots constructed to the standard required by the PBFP guidelines. It was the applicant's submission that the proposed subdivision would result in, effectively, the same outcome as would have been provided by the link road.
Mr Zachary Wells, a civil design and construction manager called by the applicant, referred to examples of rural smallholding subdivision in other local governments where battleaxe lots had been included as a variation to a subdivision guide plan. Mr Wells had also examined remnant vegetation to be retained and said the fire escape route proposed for Lot 120 and Lot 121 would require removal of less vegetation than the creation of a 20 metre reserve for the link road.
Mr Jerom Hurley, a town planner called by the applicant, referred to battleaxe lots in subdivisions elsewhere in the Shire, although acknowledging that most likely those subdivisions predated LPP 1.16. Mr Hurley said he did not consider that three proposed battleaxe lots was 'extensive use of battleaxe subdivision', and so the proposed subdivision would not be in conflict with LPP1.16.
Mr Jason Bouwhuis, a town planner called by the respondent as a witness, said the proposed subdivision could not be considered to generally be in accordance with the subdivision guide plan. He argued that, before the proposed subdivision could be considered for approval, there would have to be an approved modification to the subdivision guide plan as provided for in condition 1 of item 13 of Sch 11 of TPS 3. Mr Bouwhuis said any proposed modification would have to follow the same process that produced the existing subdivision guide plan, and this required advertising and the ultimate adoption of the modified plan by the Shire and endorsement by the Commission.
Mr Bouwhuis conceded that the new link road reserve might remove more remnant vegetation than an escape route, but said the Shire and the Commission had adopted the link road as the most appropriate form of access for the lots of the subdivision guide plan.
Mr William Baston, a planner for the Shire who was called by the respondent, made reference to his understanding of the history of Amendment 11 to TPS 3 that rezoned the site to rural smallholding. He emphasised from LPP 1.16 that the Shire did not favour the creation of battleaxe lots in the zone. He was concerned that it would be difficult to maintain the alternative escape routes for the battleaxe lots and believed the proposed triangular shaped building envelopes were unsuitable for sensible development of buildings. He was concerned that both the battleaxe access leg and the escape route should be capable of twoway traffic.
The Victorian Civil and Administrative Tribunal made comment on 'generally in accordance with' in Casey Gardens Developments Pty Ltd v Casey CC [2009] VCAT 2489 at [9] [ 13], as follows:
There are numerous decisions of the Tribunal that have applied the test contained in the Development Plan Overlay, most notably Canet v Brimbank City Council [2003] 13. This decision was relied on by each of the parties in this proceeding, although applied differently.
Essentially, case authorities including Canet provide that:
General accordance is a question of fact, to be assessed on the facts and circumstances of each case;
The less precision there is in the primary document/s, the more flexibility is given by the phrase 'generally in accordance with';
'Generally in accordance' does not require the proposed development to be identical to that described in the development or master plan; and
It is appropriate to read the development or master plan as a whole when making this assessment.
In our view, while the application of the 'generally in accordance with' test will vary according to the facts and circumstances of each case, we do not think that this should involve an assessment akin to laying an application plan on a light box above an approved development plan and then undertaking a 'spot the difference' examination.
Rather, the question before us is whether the departures identified by the responsible authority are sufficiently confined and otherwise acceptable having regard to the objectives, responses and plans comprising the approved development plan. We agree with Mr Taylor that this stage of the process can usefully be described as being a 'gateway test'.
It is expected that there will be a progression or refinement of numerous aspects of a development plan between its approval and the preparation of detailed application plans. To this extent, it is relevant that the requirement in the planning scheme is not that any permit issued be strictly 'in accordance with' a development plan. As a minimum, however, there must be a fair degree of uniformity between the key aspects of a development plan, particularly where they are provided in detail, and the proposal for which a permit is sought.
And at [15]:
With the exception of one key component of the plan, being the pedestrian/bicycle path and open space area within the western portion of the site, we would have formed the view that in all other respects, the proposal was generally in accordance with the approved development plan. At the same time, we note that some additional refinements will still be necessary before a permit issues in order to arrive at a finding that the proposal satisfies the operative provision of the Development Plan Overlay.
The Tribunal is of the view that, with respect, the same considerations are relevant to this matter.
The Tribunal notes that the subdivision guide plan for the site is set out as a whole on an A3 plan adopted by the Shire on 16 December 2009 and endorsed by the Commission on 16 June 2010, and includes both a subdivision layout and nine conditions, which are repeated from item 13 of Sch 11 of TPS 3.
The Tribunal considers that the critical items in deciding this issue are whether the deletion of the link road, the creation of the additional lots and the introduction of battleaxe lots into the subdivision design can be supported in this instance as being generally in accordance with the subdivision guide plan.
The Tribunal considers that the proposed 37 lot subdivision could be made, by way of subdivision conditions, to comply with certain the conditions of the subdivision guide plan relevant to a subdivision. The form of the proposed subdivision would not make impossible compliance with the conditions requiring the preparation and implementation of an environmental plan, the provision of a landscape buffer and the preparation of a fire management plan. The lots proposed would comply with the condition of the subdivision guide plan requiring a minimum lot size of 2 hectares.
On the items the respondent listed as departures, from the evidence of the planning witnesses, the Tribunal has accepted that the elongated rectangular building envelopes are of dimensions that would permit reasonable development for a rural smallholding use. The concern about triangular building envelopes could be cured by a condition of approval requiring a redrawing of those envelopes.
The proposed subdivision would increase the number of lots on the site to 37 by reducing the area of each of the lots shown in the subdivision guide plan, by deleting the link road and by introducing three battleaxe lots. Proportionally, this is a significant increase above the 31 lots of the subdivision guide plan. The Tribunal considers, however, an absolute increase of six lots could be accommodated because of the limited impact additional development and traffic from those lots is likely have on the amenity of this rural smallholding zone.
The evidence of Mr Wells shows that the site has no more than 'gentle' slopes. Lot size is not dictated by topography. Condition 7 of the subdivision guide plan only grants discretion to allow 'rural pursuits', which include animal rearing and agistment and the growing of fruit and flowers. Intensive and extensive agriculture are prohibited.
The Tribunal has formed the view that the proposed reduction in lot size, spread over the whole of the site, would not frustrate the objective for the rural smallholding zone at cl 4.2 of TPS 3 of providing 'residential accommodation in association with rural pursuits on smaller land holdings … in combination with conservation of remnant vegetation'.
Deletion of the link road is an obvious change from the subdivision guide plan. There was no evidence, however, of why five additional lots having road frontage only to Cook Road would be a planning concern. The evidence was that the extension of Cook Road provides direct road frontage to some 20 rural smallholding lots adjoining the site to the east. The Tribunal finds acceptable, refinement that would result in a number of lots having only single road frontage rather than the dual road frontage of the subdivision guide plan.
The link road provides sole road frontage for three lots under the subdivision guide plan. The proposed subdivision shows that one of those lots might be reorientated to provide frontage to the northsouth subdivisional road. The Tribunal is of the opinion that deleting the link road, which arguably is required for road access to two lots, is an acceptable variation, particularly in circumstances where more remnant vegetation might be protected consistent with the requirement to prepare an environmental management plan under the subdivision guide plan.
The deletion of the link road results in the creation of two battleaxe lots, which, with the battleaxe lot to the rear of the existing house, are also an obvious variation from the subdivision guide plan. The Tribunal agrees with Mr Hurley that three battleaxe lots is not an 'extensive use of the battleaxe configuration' that LPP 1.16 is directed against. The Tribunal was satisfied, on the evidence of the planners and Mr Wells, that the battleaxe lots could provide 'residential accommodation in association with rural pursuits' and could satisfy the condition for a fire management plan which would achieve the requirements of the PFBP guidelines.
The subdivision layout of the subdivision guide plan for the site has a degree of precision. The Tribunal is aware that there might, therefore, be less flexibility in the phrase 'generally be in accordance with' than where a subdivision guide plan is more an indicative plan. The Tribunal has weighed the proposed subdivision in the light of, as a whole, the subdivision guide plan, which includes the conditions of item 13 of Sch 11 of TPS 3, and the objective for the rural smallholding zone at cl 4.2 of TPS 3.
If the proposed subdivision plan and the subdivision guide plan are subject to a comparison akin to laying one plan over the other, then the deletion of the link road and the introduction of battleaxe lots can be seen as significant departures from the subdivision guide plan. The Tribunal has concluded, however, that those departures do not prevent the prescribed conditions for subdivision and development being satisfied and the planning objectives for the rural smallholding zone under TPS 3 being achieved.
The Tribunal has found that, in the facts and circumstances of this matter, the proposed 37 lot subdivision, if subject to appropriate conditions, which are addressed below, can be considered to generally be in accordance with the subdivision guide plan.
To be clear, the Tribunal would add that the 37 lot proposal would not replace the existing subdivision guide plan. If the approval for the 37 lot proposal lapses, the existing subdivision guide plan remains in place. If there is an application to modify the 37 lot proposal then the resultant subdivision would, again, have to be assessed against the existing subdivision guide plan.
Two lot subdivision
Mr Bouwhuis' evidence was that the proposed two lot subdivision would be a significant departure from, and therefore would not generally be consistent with, the 31 lots shown in the subdivision guide plan. The two lots would also be inconsistent with the provisions for the rural smallholding zone under TPS 3 because of the significant reduction in the intended density of development for the site. Mr Bouwhuis said a subdivision should only be allowed that would result in achieving the subdivision guide plan.
The applicant said that nothing in TPS 3 or the PD Act prohibited staged subdivisions. The proposed two lot subdivision could be considered as equivalent to staging the proposed 37 lot subdivision. The two lot subdivision would not prevent the eventual subdivision of Lot 1 into those of the proposed 37 lot subdivision that have frontage to Oyston Road and Cook Road. The applicant said '… you would build the roads to those lots that didn’t have road frontage and put your water supply and power on just the lots you're creating' (T:59, 12.10.11). If an approval was granted to the 37 lot proposal, and, as a first stage only, lots with frontage to the existing roads were created, the remnant lot would be the same as proposed Lot 2.
The Tribunal acknowledges that the 37 lot subdivision has dictated the location of the boundaries of the two proposed lots. The Tribunal considers, however, that the proposed two lot subdivision would not generally be in accordance with the subdivision guide plan, as required by condition 1 of item 13 of Sch 11 of TPS 3.
The two lot application is a discrete proposal for the creation of two large rural smallholding zoned lots, namely Lot 1 of 34.4 hectares and Lot 2 of 46.4 hectares. The Tribunal considers the creation of lots of this size is inconsistent with the objective for the zone of providing for residential accommodation on smaller landholdings. In addition, the Tribunal does not consider it would be orderly planning to create the proposed Lot 1 in two parts tied across Lot 2 with use of the public road system required to manage the two parts.
The Tribunal has concluded that the two lot proposal will not achieve, as a matter of course, the same result as a staged implementation of the 37 lot proposal. Of particular concern to the Tribunal is that if the two lots were created, the future subdivision of Lot 2 would be completely dependent upon the subdivision of Lot 1 occurring first if the proposed 37 lot subdivision is to be achieved. This is because there can be no road access to any 2 hectare lots proposed to be created from Lot 2, other than the one lot around the existing house, without there first being, approved and completed, the subdivision of Lot 1.
It was common ground between the parties that if the two lot proposal were approved, conditions that might reasonably be imposed related to widening Oyston Road, a fire management plan and boundary clearances. None of these conditions would allow any future owner of Lot 2 to subdivide into 2 hectare lots independently of Lot 1, because there is no obligation in these conditions for Lot 1 to provide subdivision road connections between Lot 2 and the existing roads.
If conditions were included in an approval of the two lot proposal that included creating the public road reserves, at least as far as they would traverse Lot 1, to provide a future independent opportunity to subdivide Lot 2, then Lot 1 would not be in two parts but in four separated parts tied across a public road reserve and Lot 2. The two lot proposal is not supported by the Tribunal because it would be in conflict with the subdivision guide plan and is not considered to constitute orderly planning in this rural smallholding zone.
As stated by the applicant, if the 37 lot subdivision was approved and was implemented in stages, then the equivalent of the proposed Lot 2 might eventuate. The difference in such circumstances is that, for a 37 lot approval, the appropriate conditions will have been imposed. As each stage of the subdivision is progressed, consideration can be given to requiring the necessary conditions to be cleared to ensure the ultimate orderly subdivision of the site as a whole is achievable, consistent with the purpose of the amendment to TPS 3 that rezoned the site.
The Tribunal has concluded that the proposed two lot subdivision would be inconsistent with the orderly and proper planning and would not generally be in accordance with the subdivision guide plan as required by condition 1 of item 13 of Sch 11 of TPS 3 .
Issue 3: whether the proposed subdivisions would be consistent with the objective of the rural smallholding zone and other requirements of item 13 of Sch 11 of TPS 3
The objective for the rural smallholding zone is at cl 4.2 of TPS 3 and is set out in full above. Item 13 of Sch 11 of TPS 3 is also set out above.
As discussed under Issue 2 above, the Tribunal has found that the proposed 37 lot subdivision would be capable of providing smaller lots suitable for residential accommodation and rural pursuits as required by the objective for the zone under TPS 3, and could be made to satisfy the conditions of item 13 of Sch 11 of TPS 3.
The Tribunal considers that, for the two lot subdivision, conditions 2 to 8 of item 13 of Sch 11 of TPS 3 might be satisfied. The Tribunal found in Issue 2, however, that the two lot subdivision would not satisfy the objective of the rural smallholding zone or condition 1 of item 13 of Sch 11 of TPS 3, and this is considered to be fatal to the application.
Issue 4: whether the proposed subdivisions would be consistent with DC 1.1 in terms of the orderly and proper planning for the site
Clause 2 of DC 1.1 sets out 13 policy objectives and these include:
•To control the subdivision of land within the framework of the relevant legislation and regulations.
•To ensure that all lots created have regard to the provisions of the relevant local government Town Planning Scheme.
•To ensure the subdivision pattern is responsive to the characteristics of the site and the local planning context.
•To ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
The Tribunal considers the proposed 37 lot subdivision of the site would satisfy the orderly and proper planning objective of DC 1.1. This is because the Tribunal found under Issue 2 and Issue 3 above that, in respect to the provisions of TPS 3, the proposed 37 lot subdivision would be able to satisfy the conditions of item 13 of Sch 11, would address the relevant requirements for the zone at cl 5.20 and would satisfy the objectives for the zone at cl 4.2. The proposed subdivision is considered to be responsive to the characteristics of the site and to generally reflect the character of rural smallholding subdivisions in the district.
In respect of the two lot subdivision, the Tribunal considers that this would not satisfy the DC 1.1 objective of orderly and proper planning. This is because, as concluded by the Tribunal under Issue 2 and Issue 3 above, the two lot proposal would not satisfy condition 1 of item 13 of Sch 11 of TPS 3 or meet the objective for the zone at cl 4.2 of TPS 3.
In addition, the Tribunal also found that the two lot proposal would not be consistent with the DC 1.1 objective of orderly and proper planning because, once the two lots are created, an owner wishing to subdivide Lot 2 into rural smallholdings consistent with the zoning would be completely dependent on the prior subdivision of Lot 1.
The parties addressed a further provision of DC 1.1 that is relevant to orderly and proper planning, and that was in respect to what process would be required if there was to be a modification approved for the subdivision guide plan, as referred to in condition 1 of item 13 of Sch 11 of TPS 3. It was the respondent's argument that the subdivision guide plan was required to be modified before the proposed 37 lot subdivision might be allowed.
Clause 3.3.4 of DC 1.1 states:
The WAPC will have regard to any adopted structure plan and developer contribution arrangement when considering subdivision applications submitted within an area covered by the structure plan or developer contribution arrangement.
The respondent said it considered the subdivision guide plan to be a structure plan for the purpose of cl 3.3.4 of DC 1.1. Mr Bouwhuis made reference to the Commission's 'Draft structure plan preparation guidelines' of August 2011, which defined structure plans as including subdivision guide plans. He said any modification to the subdivision guide plan should, therefore, be subject to the procedures for amending a structure plan at cl 5.21 of TPS 3. If a modified subdivision guide plan was approved, the proposed 37 lot subdivision could be allowed as being generally in accordance with it.
The subdivision guide plan was adopted subsequent to the gazettal of Amendment 11 to TPS 3 that rezoned the site to rural smallholding, but prior to the gazettal of the TPS 3 amendment to include cl 5.21. The applicant said cl 5.21 of TPS 3 was not relevant because the subdivision guide plan was not a structure plan, but a 'lower level' of plan. There was nothing in TPS 3 setting out how a subdivision guide plan was to be adopted or modified, particularly requiring advertising as suggested by the respondent.
It is not necessary for the Tribunal to determine what process is required to modify the subdivision guide plan because it has determined that the 37 lot proposal can be allowed. The Tribunal would offer the comment, however, that item 13 of Sch 11 of TPS 3, which, at condition 1, includes reference to the subdivision guide plan for the site, was the result of an amendment to TPS 3 which requires Ministerial approval and gazettal. The report prepared to support a scheme amendment should include reference to any of the four or so items that cl 5.21.5 of TPS 3 requires to be included in a structure plan approval or amendment.
The Tribunal found in the draft structure plan guidelines that the relevant level of plan appeared to be a 'local structure plan', which, at page 8 of the draft guidelines, was said to provide 'the general basis for subdivision'. At page 22, the example of such a plan does not include a guide to a particular subdivision layout.
The Tribunal is of the opinion that it is not appropriate at this stage in the preparation of the draft structure plan guidelines to borrow a definition and provisions from the draft guidelines and apply them to TPS 3. It is not apparent that complying with the provisions for amending a structure plan under cl 5.21 of TPS 3 is required for modifications of a subdivision guide plan inserted as a result of a rural smallholding zone included in Sch 11 of TPS 3. The purpose of a rezoning and of cl 5.20 and Sch 11 of TPS 3 appears different from that of a structure plan prepared under cl 5.21. In any event, the Tribunal has concluded that no modification of the subdivision guide plan is required.
Conclusion
The Tribunal has concluded from the examination of the issues identified in these matters that item 13 of Sch 11 of TPS 3 is applicable to the proposed subdivisions of the site.
The Tribunal found that the proposed 37 lot subdivision would generally be consistent with the subdivision guide plan of item 13 of Sch 11 of TPS 3. The Tribunal found that the proposed two lot subdivision would not be consistent with the subdivision guide plan.
The Tribunal further found that, with appropriate conditions, the 37 lot subdivision could be made consistent with the objective of the rural smallholding zone and with the conditions of item 13 of Sch 11 of TPS 3. The two lot subdivision was found to be inconsistent with the objective for the rural smallholding zone.
The conclusions reached on the respective issues led the Tribunal to conclude that the 37 lot subdivision would be consistent with DC 1.1 in terms of orderly and proper planning. The two lot proposal would not be consistent with orderly and proper planning.
The Tribunal has decided to dismiss the application for review of the decision on the two lot subdivision in DR 45 of 2011 and to approve, subject to conditions, the 37 lot subdivision proposal of DR 46 of 2011.
Conditions
The respondent filed a schedule of conditions it would want imposed if the 37 lot subdivision were allowed. The parties agreed most conditions, either as originally recommended or with some modification. Certain conditions could not be agreed between the parties.
Recommended condition 9 reads:
Roads that have been designed to connect with existing or proposed roads abutting the subject land are to coordinate such that the road reserve location and width match and connect seamlessly.
The applicant said there was no evidence of 'proposed roads', so that part of the condition was vague and ambulatory.
The respondent said that the condition was not to require modification of the road alignments after they had been agreed with the Shire. However, in particular, the lot adjoining to the south was zoned for rural smallholding subdivision and if a subdivision of that land was approved and constructed prior to the finalisation of the roads on the site, there was potential for the roads not to match seamlessly without the condition.
As stated by the applicant, there was no evidence of any proposed subdivision of the lot to the south being discussed with the Shire or the respondent. The respondent or the Shire did not argue that the subdivisional roads extending to the eastern and southern boundaries of the site were inappropriately located. The Tribunal considers that any future subdivision of an adjoining lot must have regard to the roads approved for the site. If there is a reasonable requirement for minor adjustment of the roads on the site prior to plans for them being endorsed by the Shire because of the progress of an adjoining subdivision, then this could be accommodated. The Tribunal considers the words '… connect with existing roads or with proposed roads on a deposited plan for the subdivision of a lot abutting the land' would better reflect the intent of the condition.
Recommended condition 14 requires that, prior to subdivision works, there be provided a 'detailed plan identifying building envelopes not exceeding 2000 square metres in consultation with the local government'.
The respondent says that the exact location of the building envelopes is determined through negotiations with the Shire. The applicant said the proposed subdivision plan describes 2,000 square metre building envelopes, and uncertainty should be taken out of the condition.
Clause 5.20.3 of TPS 3 requires that a building on a lot be contained within a defined building envelope. The Tribunal considers that more is required than is shown on the subdivision plan, such as setbacks and dimensions, to 'define' where the building envelopes are to be situated on the proposed lots. This would remove the uncertainty of having to scale from the subdivision plan.
From the evidence of the expert planners, the Tribunal accepts that the rectangular building envelopes shown on the subdivision plan are of suitable dimensions for development. The triangular building envelopes of Lots 120, 121 and 134 are considered unsuitable because the shape reduces the effective building area. The triangles should be replaced with either a rectangular or, perhaps, trapezium shaped building envelopes. A building envelope is also required around the existing house for the purpose of directing the location of future development on Lot 128. Condition 19 can be reworded accordingly.
Recommended condition 16 would require the installation of street lighting. The respondent said street lighting was requested by the Shire and was required for road safety and amenity reasons. Both parties cited examples of recent subdivision approvals in the locality which respectively included or did not include a condition for street lighting.
The Tribunal noted that there appeared to be no consistency in the Shire requesting this condition. The photographs provided by the parties of other subdivisions, including adjoining to the east, revealed no evidence of street lighting. The Tribunal decided to delete this condition.
Recommended condition 17 reads:
Measures being taken to ensure the identification and protection of any vegetation on the site worthy of retention prior to the commencement of site works.
As the Tribunal understood the respondent's position, the purpose of the condition was to avoid vegetation identified on site as worthy of retention being affected by subdivision works. The subdivision works include road construction and it might be necessary to modify the subdivision design to accommodate any slight adjustments to the road reserve alignments. The deposited plan would then include the slightly modified subdivision design.
The applicant said some clearing will be required for subdivision works and there was no desire to otherwise clear the land.
The Tribunal notes that recommended condition 18 requires an environmental management plan which is to include vegetation protection for the site. Condition 17 is poorly worded if the intention is only to encourage minor adjustment of subdivision design, to avoid vegetation that is worthy of retention being removed by those works. The condition, which would become condition 16 with the deletion of recommended condition 16, could be reworded to reflect this intent.
Recommended condition 19 states:
Landscape buffers are to be provided along Oyston Road in accordance with the provisions of the approved Subdivision Guide Plan to the specifications of the Local Government.
The subdivision guide plan shows a 50 metre wide 'Landscape Buffer' for Oyston Road. The respondent said that condition 5 of the subdivision guide plan requires the landscape buffer to be 'provided and maintained' and this is to be interpreted as landscaping works to be undertaken to 'preserve' rural amenity otherwise affected by the change to the local amenity that would result from the subdivision.
The applicant said that condition 5 of the subdivision guide plan requires a landscape buffer to be 'provided' which, it was said, means to 'preserve' the existing landscape.
Clause 5.20.2(b) of TPS 3 requires a setback of 20 metres from the front boundary and cl 5.20.4 provides that no vegetation may be removed outside building envelopes or firebreaks. The buffer of condition 5 appears to be a replacement for the otherwise required 20 metre setback. The Tribunal considers 50 metres to be too wide for an open ended requirement for additional landscaping, particularly in the absence of any requirement for a landscaping plan to be prepared, implemented and maintained. The Tribunal is of the view that condition 19, to become condition 18, can be amended to reflect that the intention is to preserve the existing landscape.
Recommended condition 21, which would be renumbered condition 20, requires that '[s]uitable arrangements be made with the Shire of Northam for the provision of vehicular crossovers to service all lots'.
The Tribunal notes that attachment ZW16 of Mr Wells' witness statement was a typical crosssection of a 6 metre wide sealed road within an 18 metre road reserve for the subdivisional roads. These road reserves are now to be 20 metres wide. The crosssection shows a swale drain in each verge of '400 mm minimum depth'. The photographs of Oyston Road at Mr Wells' ZW14 and ZW15 show a swale drain along the frontage of the site. The Tribunal is concerned that there be available reasonable access to newly created lots for maintenance and firebreak purposes that does not require driving into a drain. The Tribunal considers the condition should remain.
Orders
The Tribunal makes the following orders for the two matters under review:
DR 45 of 2011
1.The application for review is dismissed.
2.The refusal of the Western Australian Planning Commission dated 28 January 2011 to grant approval for the subdivision of Lot 6468 Oyston Road, Bakers Hill into two lots is affirmed.
DR 46 of 2011
1.The application for review is upheld.
2.The refusal of the Western Australian Planning Commission issued on 28 January 2011 is set aside and approval is granted for the subdivision of Lot 6468 Oyston Road, Bakers Hill into 37 lots in accordance with the plan dated 11 October 2011 subject to compliance with the following conditions:
1)An urban water management plan to be prepared prior to commencement of ground disturbing activities, consistent with the Department of Water's Stormwater Management Manual for Western Australia to the satisfaction of the Western Australian Planning Commission on advice from the Department of Water. (Department of Water)
2)The approved urban water management plan shall be implemented by the landowner, including construction of the identified stormwater management systems, to the satisfaction of the Western Australian Planning Commission on advice from the local government. (Local government)
3)Those lots not fronting an existing road being provided with frontage to constructed roads connected by constructed roads to the local road system, and such roads being constructed and drained at the applicant/owner's cost. As an alternative, the Western Australian Planning Commission is prepared to accept the applicant/owner paying to the local government the cost of such roadworks as estimated by the local government subject to the local government providing formal assurance to the Western Australian Planning Commission confirming that the works will be completed within a reasonable period as agreed by the Western Australian Planning Commission. (Local government)
4)All roads having a minimum road reserve width of 20 metres. (Local government)
5)The land being filled and/or drained at the applicant/owner's cost to the satisfaction and specifications of the Shire of Northam, and any easements and/or reserves necessary for the implementation thereof, being provided free of cost. (Local government)
6)The land being graded and stabilised. (Local government)
7)The applicant widening Oyston Road to a 6 metre wide sealed rural standard road to the satisfaction of the Western Australian Planning Commission. (Local government)
8)No lot being less than 2 hectares in area. (Local government)
9)Roads that have been designed to connect with existing roads or with proposed roads on a deposited plan for the subdivision of a lot abutting the land are to coordinate such that the road reserve location and width match and connect seamlessly. (Local government)
10)An easement in accordance with s 136C of the Transfer of Land Act 1893 (WA) for emergency fire access purposes is to be placed on the certificates of title of proposed Lots 131, 120 and 135, specifying access rights through the lots to the northsouth and eastwest subdivisional roads respectively. Notice of this easement is to be included on the deposited plan. (Local government)
11)The area subject to the proposed fire access easement is to be constructed to the specifications of the Planning for Bushfire Protection and Guidelines (2nd edition). (Local government)
12)The applicant/owner entering into an agreement with the local government under s 136C of the Transfer of Land Act1893 (WA) to ensure reciprocal rights of access over the adjoining battleaxe accessways. (Local government)
13)The subdivider providing a written undertaking to ensure that prospective purchasers of the lots created will be advised of:
i)the provisions of the Shire of Northam Town Planning Scheme No 3 which relate to the use and management of the land; and
ii)in respect of lots including or located adjacent to Coates Gully, the use of ATU on-site effluent disposal systems will be required to be used in lieu of conventional septic tank systems. (Local government)
14)Prior to the commencement of subdivision works, a detailed plan is to be prepared in consultation with the local government and lodged with the respondent and local government identifying by dimensions and setbacks the location of the building envelopes. The building envelopes are not to exceed 2,000 square metres, the triangular building envelopes on Lots 120, 121 and 134 are to be replaced with a rectangular or trapezium shaped building envelope, and a building envelope is to be depicted around the existing house on the site. (Local government)
15)A restrictive covenant, pursuant to s 129BA of the Transfer of Land Act 1893 (WA) (as amended) is to be placed on the certificates of title of the proposed lots advising of the existence of a restriction on the use of land. Notice of this restriction is to be included on the deposited plan. The restrictive covenant is to state as follows:
No development is to take place outside the defined building envelopes unless otherwise approved by the local government.
16)Measures being taken in consultation with the local government prior to the commencement of subdivision works to identify vegetation on site worthy of retention that would be affected by subdivision works, and to ensure the protection of that vegetation by minor variation of the subdivision layout if required. The subdivider is to ensure clearing does not extend to any vegetation beyond the minimum required to complete the subdivision works. (Local government)
17)The subdivider shall prepare and implement an environmental management plan to the satisfaction and approval of the local government prior to the subdivision of the land. The plan shall include:
a)vegetation protection, including the registering of conservation covenants on the certificate of title of lots with significant areas of native vegetation to ensure that purchasers are aware that remnant vegetation is to be managed;
b)drainage, nutrient and salinity management; and
c)a 'Watercourse Protection Area', the extent of which is to be determined after consultation with the relevant government agency, which requires the protection and rehabilitation of the seasonal watercourse, associated wetland and landscape buffers and does not permit any development including buildings, dams or any stream modification and the keeping of livestock. (Local government)
18)A landscape buffer to ensure existing vegetation is preserved is to be provided along Oyston Road in accordance with the provisions of the approved subdivision guide plan to the specifications of the local government. (Local government)
19)Roads and vehicle/pedestrian crossings over waterways are to be designed and constructed to minimise detrimental impact on the waterway(s) form and function. (Local government)
20)Suitable arrangements being made with the Shire of Northam for the provision of vehicular crossovers to service all lots. (Local government)
21)The battleaxe accessways being constructed and drained to the applicant/owner's cost to the satisfaction of the Western Australian Planning Commission. (Local government)
22)A fire management plan being prepared and implemented to the satisfaction of the Western Australian Planning Commission. (Local government)
23)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation. (Local government)
24)Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lots shown on the approved plan of subdivision. (Western Power)
25)A transfer of land as a Crown reserve, free of cost to Western Power for the provision of electricity supply infrastructure. The specific location and area of land required is to be to the satisfaction of the Western Australian Planning Commission. (Western Power)
26)Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the removal, relocation and/or replacement of electricity supply infrastructure, including plant and/or equipment located on or near the lots shown on the approved plan. (Western Power)
27)Suitable arrangements being made with the Water Corporation so that provision of a suitable water supply service will be available to the lots as shown on the approved plan of subdivision. (Water Corporation)
I certify that this and the preceding [126] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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