VAN HOVE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION

[2005] WASAT 253

VAN HOVE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 253

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2005] WASAT 253
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:401/2005	Heard:	ON THE PAPERS
Coram:	MR D BROWN (SESSIONAL MEMBER)	Delivered:	19/09/05
No of pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	JJ VAN HOVE AD VAN HOVE WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Strata subdivision – Conditional approval – Requirement for restrictive covenant Development Control Policy DC 2.6 – Planning Bulletin No 33 (right of ways in established areas) – Reasonable condition imposed on subdivision
Legislation:	Town Planning and Development Act 1928 (WA), s
Case References:	Aspen Pty Ltd v State Planning Commission 21 October 1988 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Nil
Orders	1.  The application to have Condition 8 of the approval to subdivision of Lot 995 Wilding Street, Doubleview dated 14 November 2004 deleted is dismissed.,2.  The decision of the respondent is affirmed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : VAN HOVE & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 253 MEMBER : MR D BROWN (SESSIONAL MEMBER) HEARD : ON THE PAPERS DELIVERED : 19 SEPTEMBER 2005 FILE NO/S : DR 401 of 2005 BETWEEN : JJ VAN HOVE

AD VAN HOVE
Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Strata subdivision – Conditional approval – Requirement for restrictive covenant - Development Control Policy DC 2.6 – Planning Bulletin No 33 (right of ways in established areas) – Reasonable conditionimposed on subdivision

Legislation:

Town Planning and Development Act 1928 (WA), s

(Page 2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Self­represented
Respondent : Self­represented

Solicitors:

Applicant : Self-represented
Respondent : Self-represented

Case(s) referred to in decision(s):

Aspen Pty Ltd v State Planning Commission 21 October 1988
Newbury District Council v Secretary of State for the Environment [1981] AC 578

Case(s) also cited:

Nil


(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 The applicant was granted local planning approval and issued with a building license for a second house on his property in Doubleview. The new house was completed and an application made to the Western Australian Planning Commission for approval to create separate lots for each house and a driveway to the new house at the rear of the site.

2 Conditional approval was granted requiring that a notice be placed on the certificate of title to the new house indicating that part of the lot may be required in the future to widen the right-of-way at the rear of the site. Since the new house does not use the right-of-way for access the owner applied for the condition to be deleted, claiming the condition was unreasonable and not required by the subdivision. Consideration of the request resulted in a slightly modified condition, but one that still required the notice on title.

3 Planning for the area shows the possible future need to widen the right-of-way to provide for safe vehicular and pedestrian movement, and to allow an enhanced streetscape, as more properties are subdivided and demand for access to and from the right-of-way increases. Taking land for the widening as a condition of subdivision would have a considerable impact on the entertainment area of the new house, and require works to ensure its structural stability.

4 The decision requiring the notice on title has no physical impact on the site, but requires that current and future owners be advised that part of the site, as defined in the notice, may be affected by a future widening, and that no new development should occur on the affected land.

5 The need for a possible future widening requires that the right-of-way be considered in its entirety, and not on a site-by-site basis. The condition regarding the widening is considered a reasonable compromise that satisfies long-term planning for the area, and allows the owner to enjoy the new house without the need for the disruption that would accompany a requirement for the widening to be given up as part of the subdivision approval.

6 The approval as granted is consistent with orderly and proper planning, and with a well-established practice of the Commission of warning owners of possible future impacts.

(Page 4)

Introduction

7 This application for review relates to a condition imposed on an approval to subdivision granted by the Western Australian Planning Commission (the respondent). The land in question is situated at No 164 Wilding Street, Doubleview, and can more particularly be described as portion of Swan Location 959, being Lot 995 the whole of the land in certificate of title volume 2153 folio 16 (the site).

8 The site has a frontage of 15.09 metres to Wilding Street, a depth of 42.75 metres and contains 645 square metres. A sealed right of way 5.03 metres wide abuts the rear boundary of the site (the ROW). Current improvements on the site consist of the original weatherboard and tile house fronting Wilding Street, and a new brick and tile, two-storey dwelling (the new house) at the rear approved by the City of Stirling (the council) on 26 July 2002. Access to the new building is via a common property driveway from Wilding Street.

9 On 14 November 2004, the respondent conditionally approved an application for a survey strata subdivision of the site to create a separate lot for each of the houses, and separate access way to the rear lot from Wilding Street (the proposed subdivision). Condition 8 of the approval required that a restrictive covenant be placed on the certificate of title of the lot containing the new house.

Decision subject of review

10 Following a request for reconsideration of the decision, the respondent advised the applicant on 18 March 2005 that Condition 8 had been modified to read as follows:

"A restrictive covenant for the benefit of the City of Stirling to be placed on the Certificates of Title of all lots abutting the right-of-way advising of a restriction on the use of the land, in accordance with section 129BA of the Transfer of Land Act 1893, and notice of this restriction to be included on the Diagram or Plan of Survey, to the satisfaction of the Commission and at the applicant's cost. (WAPC)

The restrictive covenant to state as follows:

No development of the subject lot shall occur within 0.49 metres of the right-of-way abutting the rear boundary of the lot to accommodate widening of the right-of-way should it be required in the future."

(Page 5)

11 It is this decision that gives rise to the application for review.

Nature of existing development

12 The evidence shows that the new house does not take advantage of the ROW for access, having instead a driveway from Wilding Street on the proposed common property. A 1.0 metre high retaining wall has been built on the rear boundary of the site, on which sits a masonry wall that appears to be about 1.6 metres to 1.8 metres high. The finished level of the rear of the site between this fence and the new house is 1.0 metre higher than the ROW. The rear of the site has been extensively paved and landscaped as an entertainment area. This part of the site forms part of the approval to the new house as required by the outdoor living area requirement of the Residential Design Codes of Western Australia 2002 (the codes).

Legislative framework

13 The site is zoned Urban in the Metropolitan Region Scheme and "Residential R 40" in the council's Town Planning Scheme No 2 (the scheme). It was common ground that the subdivision satisfies the requirements of the codes.

Other Considerations

14 The respondent has adopted a development control policy No 2.6 relating to residential road planning(DC 2.6) containing guidelines for the safe passage of vehicles, cyclists and pedestrians, including use of rear access ways. DC 2.6 calls for a minimum 6.0 metre width for rear access ways.

15 The respondent's Planning Bulletin No 33 Rights-of-Ways or Laneways in Established Areas-Guidelines July 1999 (PB 33) provides at cl 5.1:

"The Commission's Policy [DC2.6] requires a minimum width of 6 metres for a right-of-way for vehicular access. This is based upon the minimum space required to manoeuvre a car into or out of a garage, carport or parking space at right angles to the right-of-way. It allows sufficient width for vehicles to pass safely, whilst also allowing room for pedestrians and cyclists."

16 PB 33 indicates that vehicles can pass safely (at low speed) in 5.0 metre wide right-of-ways but that 6.0 metres is the preferred width.

(Page 6)

According to PB 33, this requirement should only to be waived where alternative pedestrian access to a public street can be provided, and where all developments in a street block are likely to follow the same pattern.

17 The council has a policy for this type of development (council's ROW policy) which categorises right-of-ways according to their development potential. In this case, the ROW is a Category 2 Development Potential Right-of-Way where abutting development is encouraged to orient to (and use) the right-of-way as the principal means of access, or to ensure that developments will not detract from the long-term objectives of good traffic management, passive surveillance, and creation of a pleasant streetscape in the ROW.

18 Application of the above policies is not mandatory, but is one of the matters for which decision-makers should have regard in determining applications of this type.

Applicant's position

19 The applicant's position can be summarised as follows:

• The development on the site meets the requirements of the codes, and complies with approvals granted by the council. It is also consistent with similar new developments in the area, and with the amenity of the locality.

• The possible future need to widen the ROW is not generated by the proposed subdivision of the site into two lots.

• Widening of the ROW would destroy a feature of the development required by the codes: that is, an adequate outdoor living area.

• The subdivision reflects the current development on the site, including levels, fencing and landscaping. Condition 8 affects an area containing expensive landscaping, and lacks certainty as to whether the existing improvements can remain. To have to remove improvements recently approved by the council, and reduce an area required by the codes, would be onerous.

• The condition is unreasonable because the widening may never be required.

• There is nothing in the scheme or council policy requiring that the ROW be widened, and the council has no intentions in this regard.

(Page 7)

• PB 33 recognises that vehicles can pass safely in a 5.0 metre wide right-of-way, and that widening might not be necessary, particularly where there is access from a public street.

Respondent's position

20 The respondent's position can be summarised as follows:

• Condition 8 is consistent with the requirements of DC 2.6 and PB 33, and the respondent's planning for safe, efficient, alternative means of access to new developments on existing right-of-ways, and as a means of achieving a high level of residential amenity in these areas. DC 2.6 calls for a minimum carriageway width of 6.0 metres.

• PB 33 highlights the policy and practice for subdivisions adjoining existing right-of-ways, including the need to ensure their use as a primary means of access for new abutting development.

• While PB 33 recognises that vehicles can pass safely (at low speed) in a 5.0 metre wide right-of-way, approval for access of less than 6.0 metres wide should only be given where alternative pedestrian access to a public street can be provided, and where all potential development in the street block is likely to follow this pattern.

• The Fire and Emergency Services Authority indicates that a minimum appropriate width for this type of access way is 6.0 metres.

• The ROW is classified as a Category 2 right-of-way in council's ROW policy, where abutting new development is encouraged to orient to, and use, the ROW for primary access, or to ensure that development will not detract from the long term objectives of good traffic management, passive surveillance and the creation of a pleasant streetscape.

• The street block has a potential for further development, and similar future subdivisions are likely to lead to increased use of the ROW.

• Current policy aims to have all subdividers abutting onto this type of right-of-way contribute towards their improvement;

(Page 8)

• The 0.49 metre widening requirement is half of the full widening required to achieve a 6.0 metre ROW. Owners on the other side of the ROW will contribute a similar widening. Condition 8 is simply a notice and does not require the land to be given. As such it will not affect current improvements, does not affect approvals given by the council, and is aimed at any future, further development on the site.

• Approval of the application without Condition 8 would establish an undesirable precedent, would be inconsistent with orderly and proper planning, and undermine the intent of current policies.

Conclusions

21 Although not in evidence, it is clear from the council's consent to the new house, and subsequent issue of a building licence, that the council, for one reason or another, did not intend to implement its policy on new development abutting the ROW, given that the plans show the new house turns its back on the ROW, and obtains access from Wilding Street. There was nothing to suggest any form of access to the ROW.

22 It is equally clear that in determining the application to subdivide, the respondent was expressing its long-term objective of having the ROW provide the principal means of access for new developments abutting the ROW. The respondent's decision not to take the widening as a condition of subdivision was, in the Tribunal's view, a recognition of the existence of the new house and, since vehicles can pass safely in the ROW at the current level of use, it was not necessary to implement a widening to 6.0 metres at this time. Clearly, the respondent's expectation is that, in time, the need for a safe alignment, ease of manoeuvring and pedestrian movement, may require the ROW to be widened to 6.0 metres, and that the burden of providing the widening should be shared equally between all owners adjoining the ROW. Widening of the ROW to 6.0 metres would require 0.49 metres to be taken from the site.

23 The applicant does not dispute the general principles espoused in DC 2.6, arguing instead that the current 5.0 metres width of the ROW is sufficient for vehicles to pass safely, and that widening is impractical in this case because it would intrude into the outdoor living area of the new house. There is also the 1.0 metre height difference between the ROW and the finished level of the backyard of the new house to be considered, given the possible threat to the structural stability of the dwelling. The

(Page 9)

applicant also argues that since the Council has no plans to implement the widening, it may never occur and, because of this uncertainty, it is unreasonable to impose the condition.

24 Contrary to the applicant's argument, a requirement that future owners be warned of a possible future widening does not impact on the landscaped area, and does not require the land for the widening to be given up as part of the subdivision. It simply requires that a warning be placed on the certificate of title for the new lot that a widening may be required.

25 The respondent's position is that good planning requires that provision be made for improved access to new developments along the length of the ROW, and that future owners should be aware of this possibility through a notice on title to the land. The argument is also made that to allow the subdivision without the notice would create an undesirable precedent that would undermine policy for achieving alternative access to new residential development in established areas.

26 Dealing first with the respondent's argument that approval to the subdivision without the condition would establish "an undesirable precedent", it is sufficient to refer to Aspen Pty Ltd v State Planning Commission (unreported, WA Town Planning Appeal Tribunal, 21 October 1988) where Chairman RJM Anderson QC said (at 10):

"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 maytend to result in other applications being made for similar kinds of developments should not be a reason why the appeal should be dismissed … "

27 The Tribunal has confirmed on a number of occasions that each application should be treated on its merits, and that the issue of precedent is but one of the issues to be considered, regardless of whether an approval might lead to other applications of a similar nature.

28 The test in determining whether a condition of subdivision has been properly applied is best found by reference to Newbury District Council v Secretary of State for the Environment [1981] AC 578 where it was found that for a planning condition to be valid it must:

(a) have a planning purpose;

(b) fairly and reasonably relate to the development; and

(Page 10)

(c) be not so unreasonable that no reasonable planning authority could have imposed it.

29 The condition in this instance has been imposed in accordance with a policy framework adopted by the respondent as a guide to in-fill development in areas abutting established right-of-ways, and is aimed at ensuring the safe movement of vehicles and pedestrians, and the creation of improved amenity in the ROW and similar forms of access. The policy aims to ensure that all new development along the length of the ROW has the opportunity to use the ROW for access. This, in the Tribunal's view, is consistent with good planning and represents a proper purpose for which a condition might be imposed on an approval to subdivide.

30 The evidence shows that the new house does not require the ROW for access, and that widening would impact adversely on the backyard of the new house. The applicant submits that, for this reason, a widening contribution from the site is unreasonable. This, in my view, is not a proper test of whether the condition fairly and reasonably relates to the subdivision. The possible need for future widening has been clearly demonstrated, and it was open to the respondent to require the widening to be provided as part of the approval, and as part of an incremental widening of the complete length of the ROW. The decision not to require the widening as part of the approval recognized the impact that this would have on the current development and that, for the time being, the ROW could operate at its current width. This, in the Tribunal's view, was a concession granted to the applicant conditional upon a warning to the applicant and future owners that a widening was a clear possibility in the future. For these reasons, the Tribunal believes the condition is consistent with orderly and proper planning, and a matter that fairly and reasonably relates to the development.

31 The practice of warning potential owners of some situation that could possibly affect lots in a subdivision is a well established (and generally accepted) practice of the Western Australian Planning Commission in approving subdivision. Similar notices on title warning of matters likely to affect a property can be found in areas where there is a risk of things such as undetected, unexploded ordnance or, in areas near waterways prone to mosquito infestations, where there is a possibility of residents contracting insect borne disease. In the Tribunal's view, warning a potential owner that a property may be affected by a need to take land is a similar situation, and one that can be justified in the pursuit of a proper planning outcome.

(Page 11)

32 It could be argued that the condition could be omitted because the widening might not be required. However, the respondent would lay itself open to criticism if it allowed the subdivision and did not bring the possibility of the need to take land in the future to the attention of potential owners. In the Tribunal's view, the respondent was correct in not taking the widening as a condition of subdivision, and equally correct in requiring that this possibility be brought to the notice of future purchasers.

33 For the above reasons, the Tribunal finds that the condition requiring a notice on title advising of the possible need to widen the ROW was properly made, is not unreasonable, and that the decision is consistent with orderly and proper planning.

Order

34 The orders of the Tribunal are:

1. The application to have Condition 8 of the approval to subdivision of Lot 995 Wilding Street, Doubleview dated 14 November 2004 deleted is dismissed.

2. The decision of the respondent is affirmed.









I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.









___________________________________

MR D BROWN, SESSIONAL MEMBER