Vision Surveys and Western Australian Planning Commission
[2008] WASAT 110
•19 MAY 2008
VISION SURVEYS and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 110
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 110 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:400/2007 | 19 FEBRUARY 2008 - FINAL SUBMISSIONS 11 MARCH 2008 | |
| Coram: | MR J JORDAN (MEMBER) | 19/05/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | 1. DR 400 of 2007 Application allowed. Approval granted for the survey strata subdivision of Lot 54 subject to conditions including a requirement that the owner of the land enter into an agreement with the owner of Lot 55 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 55 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land 2. DR 401 of 2007 Application allowed. Approval granted for the survey strata subdivision of Lot 55 subject to conditions including a requirement that the owner of the land enter into an agreement with the owner of Lot 54 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 54 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land | ||
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| PDF Version |
| Parties: | VISION SURVEYS WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Refusal of survey strata subdivisions Two parent lots side by side Each lot to have two survey strata lots plus 1.6 metre wide common property lot to provide access to rear lot Access lots side by side Each lot to have access easement over access leg on neighbouring lot Combined access leg 3.2 metres wide Existing houses to remain on front survey strata lots Policies on access requirements |
Legislation: | City of Bayswater District Town Planning Scheme No 24, cl 1.6, cl 8.5.2.2 Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA) Planning and Development Act 2005 (WA), s 3(1)(b), s 3(1)(c), s 251(1) Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.5.4 Residential Design Codes of Western Australia (2008), cl 6.5.4, Appendix 1 State Administrative Tribunal Act 2004 (WA), s 51(1)(b) Strata Titles Act 1985 (WA) Transfer of Land Act 1893 (WA), s 9A, s 136C, s 136J, Sch 9A |
Case References: | Sheppard v Western Australian Planning Commission [2005] WASAT 233 |
Orders | In the matter of DR 400 of 2007:,1. The application for review is allowed.,2. The decision of the Western Australian Planning Commission dated 26 October 2007 is set aside and the subdivision of No 227 (Lot 54) Coode Street, Bedford as set out in the sketch dated 25/01/07 is approved subject to compliance with the following conditions:,1) Arrangements being made to the satisfaction of the respondent and to the specification of Western Power, for the provision of an underground electricity supply service to the survey strata lots shown on the approved plan of subdivision, which may include the provision of necessary service access rights either as an easement under s 136C and Sch 9A of the Transfer of Land Act 1893 (WA) for the transmission of electricity by underground cable or via a portion of the common property suitable for consumer mains. (Western Power),2) All buildings having the necessary clearance from the new boundaries as required by the City of Bayswater District Town Planning Scheme No 24. (Local Government),3) The common property lot being constructed and drained at the subdivider's cost to the specifications of the local government. (Local Government),4) The existing dwelling on Lot 1 is to comply with the requirements for grouped dwellings within an R25 coding relating to the provision of a storeroom, two car parking bays and open space under the Residential Design Codes of Western Australia (Variation 1) (2008) (Statement of Planning Policy No 3.1, gazetted 29 April 2008). (Local Government),5) All buildings, outbuildings and/or structures on Lot 2 and the common property lot being demolished and the materials removed. (Local Government),6) All septic sewer systems, including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems, are to be decommissioned, removed, filled with clean sand and compacted. A statutory declaration must be provided by the landowner declaring that these works have been undertaken in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). (Local Government),7) Suitable arrangements being made with the local government for the provision of a vehicular crossover to service the common property lot shown on the approved plan of subdivision. (Local Government),8) Suitable arrangements being made with the Water Corporation for the provision of a suitable water supply service to the lots shown on the approved plan of subdivision. (Water Corporation),9) Suitable arrangements being made with the Water Corporation for the provision of a suitable sewerage supply service to the lots shown on the approved plan of subdivision. (Water Corporation),10) Suitable arrangements being made with the Water Corporation for the drainage of the land either directly or indirectly into a drain under the control of that body. (Water Corporation),11) The owner of the land entering into an agreement with the owner of Lot 55 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 55 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land in accordance with s 136C of the Transfer of Land Act 1893 (WA). (Western Australian Planning Commission),12) Any obstructions into the 1.6 metre wide common property lot, including any obstructions created by the eaves and windows of the existing dwelling on proposed Lot 1, are to be removed.,59 In the matter of DR 401 of 2007:,1. The application for review is allowed.,2. The decision of the Western Australian Planning Commission dated 26 October 2007 is set aside and the subdivision of No 225 (Lot 55) Coode Street, Bedford as set out in the sketch dated 25/01/07 is approved subject to compliance with the following conditions:,1) Arrangements being made to the satisfaction of the respondent and to the specification of Western Power, for the provision of an underground electricity supply service to the survey strata lots shown on the approved plan of subdivision, which may include the provision of necessary service access rights either as an easement under s 136C and Sch 9A of the Transfer of Land Act 1893 (WA) for the transmission of electricity by underground cable or via a portion of the common property suitable for consumer mains. (Western Power),2) All buildings having the necessary clearance from the new boundaries as required by the City of Bayswater District Town Planning Scheme No 24. (Local Government),3) The common property lot being constructed and drained at the subdivider's cost to the specifications of the local government. (Local Government).,4) The existing dwelling on Lot 1 is to comply with the requirements for grouped dwellings within an R25 coding relating to the provision of a storeroom, two car parking bays and open space under the Residential Design Codes of Western Australia (Variation 1) (2002) (Statement of Planning Policy No 3.1, gazetted 29 April 2008). (Local Government),5) All buildings, outbuildings and/or structures on Lot 2 and the common property lot being demolished and the materials removed. (Local Government),6) All septic sewer systems, including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems, are to be decommissioned, removed, filled with clean sand and compacted. A statutory declaration must be provided by the landowner declaring that these works have been undertaken in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA) Local Government),7) Suitable arrangements being made with the local government for the provision of a vehicular crossover to service the common property lot shown on the approved plan of subdivision. (Local Government),8) Suitable arrangements being made with the Water Corporation for the provision of a suitable water supply service to the lots shown on the approved plan of subdivision. (Water Corporation),9) Suitable arrangements being made with the Water Corporation for the provision of a suitable sewerage supply service to the lots shown on the approved plan of subdivision. (Water Corporation),10) Suitable arrangements being made with the Water Corporation for the drainage of the land either directly or indirectly into a drain under the control of that body. (Water Corporation),11) The owner of the land entering into an agreement with the owner of Lot 54 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 54 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land in accordance with s 136C of the Transfer of Land Act 1893 (WA). (Western Australian Planning Commission),12) Any obstructions into the 1.6 metre wide common property lot, including any obstructions created by the eaves and windows of the existing dwelling on proposed Lot 1, are to be removed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : VISION SURVEYS and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 110 MEMBER : MR J JORDAN (MEMBER) HEARD : 19 FEBRUARY 2008 - FINAL SUBMISSIONS 11 MARCH 2008 DELIVERED : 19 MAY 2008
FILE NO/S : DR 400 of 2007
- DR 401 of 2007
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Refusal of survey strata subdivisions - Two parent lots side by side - Each lot to have two survey strata lots plus 1.6 metre wide common property lot to provide access to rear lot - Access lots side by side - Each lot to have access easement over access leg on neighbouring lot - Combined access leg 3.2 metres wide - Existing houses to remain on front survey strata lots - Policies on access requirements
Legislation:
City of Bayswater District Town Planning Scheme No 24, cl 1.6, cl 8.5.2.2
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Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA)
Planning and Development Act 2005 (WA), s 3(1)(b), s 3(1)(c), s 251(1)
Residential Design Codes of Western Australia (2002), cl 2.2, cl 3.5.4
Residential Design Codes of Western Australia (2008), cl 6.5.4, Appendix 1
State Administrative Tribunal Act 2004 (WA), s 51(1)(b)
Strata Titles Act 1985 (WA)
Transfer of Land Act 1893 (WA), s 9A, s 136C, s 136J, Sch 9A
Result:
1. DR 400 of 2007 Application allowed. Approval granted for the survey strata subdivision of Lot 54 subject to conditions including a requirement that the owner of the land enter into an agreement with the owner of Lot 55 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 55 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land
2. DR 401 of 2007 Application allowed. Approval granted for the survey strata subdivision of Lot 55 subject to conditions including a requirement that the owner of the land enter into an agreement with the owner of Lot 54 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 54 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land
Category: B
Representation:
Counsel:
Applicant : Mr S Allerding (Acting as Agent)
Respondent : Mr J Bouwhuis (Acting as Agent)
(Page 3)
Solicitors:
Applicant : Allerding & Associates (Planning Consultants)
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Sheppard v Western Australian Planning Commission [2005] WASAT 233
(Page 4)
Summary of Tribunal's decision
1 The applicant lodged two applications for review of respective refusals by the Western Australian Planning Commission to approve subdivision applications for Lot 54 and Lot 55 Coode Street, Bedford. The two lots adjoin and the subdivisions were effectively mirror images of each other, with a front survey strata lot with an existing house, a rear vacant survey strata lot and a 1.6 metre wide common property lot providing access to the rear lot. The common property access lots created by each subdivision would be side by side. It was part of each proposed subdivision that there be an access easement over the area of the 1.6 metre wide access leg on the adjoining lot to create a 3.2 metre wide vehicle access way to the rear survey strata lots.
2 The Western Australian Planning Commission refused the applications because it considered that the individual subdivisions would not be consistent with its policy of there being created as part of each subdivision a common property access lot of not less than 3 metres in width. It was concerned about the absence of a statutory mechanism to ensure existing and future landowners would maintain the required access easements for vehicle access.
3 The Tribunal found that these proposals provided an opportunity to create lots consistent with the density coding, to retain the use of two existing houses and to provide an access leg to the rear lots consistent with policy standards.
4 The Tribunal was satisfied that appropriate agreements for reciprocal rights of access and related easements would provide a workable means of access for the rear lots. The Tribunal found that the form of subdivision proposed for each lot, with the access arrangement to be agreed between the owners, to be consistent with orderly and proper planning. The applications for review were allowed, with conditions including a requirement that agreements be entered into to ensure reciprocal rights of access over the adjoining access legs.
Introduction
5 Vision Surveys (applicant), pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), lodged applications for review of two decisions made by the Western Australian Planning Commission (respondent).
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- The two decisions of the respondent and the two respective applications for review were:
1) DR 400 of 2007: Refusal to approve the subdivision of No 227 (Lot 54) Coode Street, Bedford into a front survey strata lot with the existing house, a rear vacant survey strata lot and a 1.6 metre wide common property lot adjacent to the south-eastern boundary providing access to the rear survey strata lot.
2) DR 401 of 2007: Refusal to approve the subdivision of No 225 (Lot 55) Coode Street, Bedford into a front survey strata lot with the existing house, a rear vacant survey strata lot and a common property lot 1.6 metres wide adjacent to the north-western boundary providing access to the rear survey strata lot.
7 As each subdivision, if approved, would rely on an access easement over the neighbouring lot, the Tribunal ordered that these two applications for review were to remain separate proceedings but to be heard together, pursuant to s 51(1)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The two sites and the respective subdivisions
8 Number 225 Coode Street (Lot 55) has an area of 735 square metres and No 227 Coode Street (Lot 54) has an area of 733 square metres. Both lots contain a single storey brick and tile dwelling with frontage to Coode Street. There is a drain reserve at the rear of the lots. Other lots in the street are of similar size with single houses or, in a few instances, grouped dwellings.
9 It is proposed that Lot 55 be subdivided into three lots - a front survey strata lot of 360 square metres containing the existing house, a rear survey strata lot of 326 square metres and, adjacent to the north-western boundary, a common property lot of 49 square metres. The common property lot would be 24.91 metres long with a 1.5 metre truncation at Coode Street, a width of 1.6 metres for about 18 metres of its length - mostly adjacent to the house and widening to 3.86 metres adjacent to the proposed rear lot. The application sketch shows on adjacent Lot 54 a dashed
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- outline of a lot the mirror image of the common property lot, with the label "easement".
10 Lot 54 would be subdivided into a front survey strata lot of 359 square metres containing the existing house, a rear vacant survey strata lot of 326 square metres and a common property lot of 48 square metres adjacent to the south-eastern side boundary. The common property lot on Lot 54 would also be 24.91 metres in length with a 1.5 metre truncation at the Coode Street frontage, a width of 1.6 metres for much of its length, particularly adjacent to the house, widening to 3.86 metres adjacent to the rear survey strata lot. On the application sketch for Lot 54 there is shown, marked on adjacent Lot 55 with a dashed line, a mirror image of the common property lot, again with the label "easement".
11 Included with each subdivision application was a further sketch with the endorsement "for information purposes" and the title "Easement and/or other interests over lots 54 and 55 on P7961". The sketch showed the common property boundary between Lot 54 and Lot 55 and adjacent to the boundary on each of the lots a dashed outline that mirrors the respective common property lots which abut each other. The dashed outline on Lot 55 has the letter "B" and the dashed outline on Lot 54 has the letter "A". A table on the sketch reads as follows:
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12 Although the common property lot on each of the proposed subdivisions would be shared between the front lot with the existing house and the rear lot, it is essentially designed to serve as an access leg for the rear lot including, when combined with the adjoining access easement, vehicular access from Coode Street. The combined width would
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- be 3.2 metres. Photographs provided by the applicant show a garage incorporated within each house with a separate crossover to Coode Street.
13 It is proposed that the owners of Lot 54 and Lot 55 enter into an agreement for the grant of cross-easements to ensure that they have reciprocal rights of access over the two abutting common property lots. The applicant provided copies of two unsigned Grant of Easement agreements with the subdivision applications.
Planning framework
14 Each lot is zoned "Residential R20/25" in the City of Bayswater District Town Planning Scheme No 24 (DPS 24). Clause 8.5.2.2 of DPS 24 provides:
"Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes."
15 At the hearing of these matters the Residential Design Codes (2002) (2002 Codes) were in place. Development of the lots proposed by the subdivisions would have resulted in four "grouped dwellings" within the meaning of that term in cl 2.2 of the 2002 Codes. In relation to vehicular access, a performance criterion at cl 3.5.4 P4, required that vehicular access be provided to new development so as to minimise the number of crossovers, be safe in use and not detract from the streetscape. Clause 3.5.4 A4.5 of the 2002 Codes sets out, relevantly, as acceptable development:
16 "Driveways for Multiple and Grouped Dwellings:
• with a "minimum width of 4m, which may be reduced to 3m where necessary to retain an existing dwelling
• …"
17 The 2002 Codes have been varied by the Residential Design Codes of Western Australia (Variation 1) (2008 Codes)publishedin the Government Gazette on 29 April 2008 (2008 Codes). In the 2008 Codes, the definition of Grouped Dwelling, at Appendix 1, is the same as in the 2002 Codes. The Performance Criteria for vehicle access, now cl 6.5.4 P4 of the 2008 Codes, is the same as cl 3.5.4 P4 of the 2002 Codes. Significantly, different from the 2002 Codes, cl 6.5.4 A4.5 of the 2008 Codes now provides as acceptable development:
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18 "Formed driveways for multiple and grouped dwellings:
• with a minimum width of 4m where the number of dwellings served is five or more, reduced to 3m where necessary to retain an existing dwelling;
• …"
19 In 2003, the respondent adopted the Development Control Policy 2.2 - Residential Subdivision (DC 2.2). The policy objectives of DC 2.2 are as follows:
"1. To establish a consistent and coordinated approach to the creation of residential lots throughout the State.
2. To adopt criteria for residential lots which will ensure that each lot is provided with a suitable level of amenity, services and access.
3. To facilitate the supply to residential lots of a wide range of sizes and shapes which reflect the statutory provisions of town planning schemes, the availability of reticulated sewerage and the need for frontage to public roads."
20 Clause 3.7 of DC 2.2 is concerned with access for dwellings without street frontage. It mirrors the requirements of the 2002 Codes in respect of strata development, where it relevantly provides, at the second dot point:
"In accordance with the Codes strata development (including survey-stratas with access via common property) to be provided with driveways of 4m width, or 3m width where necessary to retain an existing dwelling …"
The refusal
21 The respondent refused each application for subdivision for the same five reasons. When identifying what it considered to be the issues that arise in each matter, the respondent advised that refusal reasons 3 and 4 were not relied upon, and this left the following refusal reasons:
"1. The proposed subdivision does not comply with the Commission's Policy DC 2.2 Residential Subdivision, a provision of State Planning Policy No 1, State Planning Framework, by reasons of the reciprocal rights of carriageway easements for two abutting access legs being less that 3 metres in width each.
- 2. The Commission is not prepared to support the proposed subdivision in the absence of suitable statutory mechanisms to control the rights and obligations of existing and future landowners/developers.
…
5. Approval to the subdivision would set an undesirable precedent for the further subdivision of other lots in a similar manner in this locality."
The issue
22 The Tribunal has identified from the joint statement of the two expert witnesses that the following issue arises for consideration:
Whether it is acceptable and consistent with orderly and proper planning to provide a 3.2 metre wide vehicular access leg for the rear lot of each proposed subdivision by creating two 1.6 metre wide common property access legs abutting each other in separate ownership, with reciprocal rights of access agreements involving grant of cross-easements.
Positions of the parties on the issue
Requirements of the Codes and DC 2.2
23 The witness statements and the submissions of the parties put to the Tribunal were based on the provisions of the 2002 Codes which were in force at the time. As set out above, the 2008 Codes are essentially the same. The one significant difference is the change to the acceptable development standards for vehicular access to grouped dwellings. The minimum width of 4 metres previously required is now required as the starting width where the number of dwellings served is five or more: cl 6.5.4 A4.5 of the 2008 Codes.
24 Mr Jason Bouwhuis, a town planner of the Department for Planning and Infrastructure, both represented and appeared as a witness for the respondent. At the hearing, Mr Bouwhuis argued in favour of common property access legs 4 metres wide. This was said to be based on cl 3.7.2 of DC 2.2, which is "in accordance with the Codes". The 2008 Codes now state that only a 4 metre wide access leg is specified where five or more grouped dwellings will result.
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25 Though the standard of 4 metre wide access legs has been changed, Mr Bouwhuis, in his witness statement, did provide argument in support of individual access legs of at least 3 metres width for each subdivision. This was the subject of examination in the hearing. The Tribunal has therefore had the benefit of the respondent and the applicant engaging on this point to assist it in determining the planning merits of the proposals. In considering these matters, the Tribunal has been able to have regard to the arguments made, notwithstanding that the 2002 Codes have been varied, because the standards relevant to these matters in essence remain the same. References to the common standard found in cl 3.4.5 A4.5 and cl 3.4.5 P4 of the 2002 Codes made by the parties therefore remain relevant to the discussion on the proposals and have been retained in the discussion below.
26 Mr Bouwhuis disagreed with the applicant that the two access legs could be considered as a "combined common property lot" to meet the 3 metre minimum width requirement. He said cl 3.4.5 A4.5 of the 2002 Codes and cl 3.7.2 of DC 2.2 were to be applied separately to each of the proposals and required separate 3 metre wide minimum width access legs to the two rear survey strata lots.
27 To support his submission, Mr Bouwhuis also referred to cl 3.6.7 of DC 2.2, which requires that access legs to battleaxe lots be 4 metres wide to allow for a driveway and utility services, and cl 3.6.9 of DC 2.2, which says that where two battleaxe access legs are immediately adjacent to each other, a reduced width of 3 metres for each leg would be acceptable with reciprocal rights of access.
28 Mr Bouwhuis acknowledged that the proposals were not battleaxe subdivisions but believed the standard should be consistent for all subdivision. In his submission, the 1.6 metre wide common property lot of each subdivision proposal fell significantly short of this standard, and were individually too narrow to accommodate a constructed driveway and public utility services. He also considered the proposed access legs did not provide the safe and convenient vehicular, cyclist and pedestrian access required by the Performance Criteria in cl 3.5.4 P4 of the 2002 Codes.
29 Mr Bouwhuis referred to the findings of the Tribunal in Sheppard v Western Australian Planning Commission [2005] WASAT 233 (Sheppard) as endorsing his view that the access width for the proposed
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- subdivisions was of itself sufficient reason for refusing the applications for review. In Sheppard, it was proposed that a house be retained and that a common property lot beside the house provide vehicular access to proposed rear survey strata lots. The access leg was to be 2.7 metres, tapering to 2.6 metres at one point. No easement on the neighbouring lot and reciprocal access agreement was proposed.
30 The Tribunal refused that application finding that 3 metres was already a concession on the otherwise 4 metre minimum applicable at that time. A further concession to the concessional minimum allowed for retaining the building was not considered appropriate for a number of reasons related to the reduced width, particularly safety issues.
31 At the hearing Mr Bouwhuis argued that, while it might be desirable in some circumstances to retain existing houses, orderly and proper planning required that the two lots be amalgamated and that there be created one common property access leg of at least the minimum standard providing access to the two rear lots. If the lots were not amalgamated, it would be necessary to demolish the houses, but this was necessary in the circumstances, to ensure a single common property lot provided adequate access to the rear lots.
32 Mr Stephen Allerding, a town planner who appeared for and provided expert evidence on behalf of the applicant, said that battleaxe subdivisions were not proposed, and emphasised the provisions of the Codes and DC 2.2 which stated that for grouped dwellings, driveways may be reduced to 3 metres where necessary to retain an existing dwelling. He said that retaining the two dwellings would be consistent with the objective of promoting sustainable use and development of land at s 3(1)(c) of the PD Act, and would maintain the streetscape.
33 Mr Allerding said the proposed driveway width of 3.2 metres would exceed the acceptable criteria by 200 millimetres. It was his interpretation that it was not required that there be a 3 metre wide driveway in respect of each proposed rear lot. This, he said, would be an impractical requirement that would cause driveways with an excessive width. A single 3 metre wide driveway could serve more than one dwelling. A coordinated driveway width of 3.2 metres would result in only one crossover to Coode Street, and this would be consistent with the performance criteria of the Codes of minimising potential for pedestrian and traffic conflicts. A driveway of the required width could be provided, and the form of tenure proposed should be approved as a practical means of achieving this. Mr Allerding
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- distinguished the two proposals from Sheppard because the resultant access that would serve both subdivisions would not require a concession on the consessional minimum then applicable.
Other examples
34 Mr Stuart Colam, a director of the applicant and a licensed surveyor, was called as a witness. Mr Colam produced in evidence copies of subdivision approvals by the respondent of adjoining lots in which there was created an underwidth driveway to a proposed rear lot and a right of carriageway easement over an access leg on the adjoining lot. One example at Swansea Street, East Victoria Park (approved 6 September 2000 reference 720-00) was for two access legs each of 2.5 metres width, side by side on different lots, created as a result of individual subdivision applications. A second example was in Oats Street, East Victoria Park (approved 19 December 2006, reference 1189-06) with a 2.6 metre wide access leg on one lot and a 1.4 metre wide access leg on the adjoining lot.
35 It was Mr Colam's opinion that future removal of the easements by owners was a "what if" scenario that was highly unlikely. This was because, under the Transfer of Land Act 1893 (WA) (TL Act) or the Strata Titles Act 1985 (WA) (ST Act), any application for removal would require the approval of all the persons with an interest and the respective strata companies. In his view, the owners of the rear lots would not wish to be left without vehicular access.
36 Mr Colam explained that the lots were in different ownership, although one of the tenants in common of one lot was a brother of one of the joint tenants of the other lot. The proposed subdivision and cross-easement arrangements would be, in his view, simple, effective and consistent with policy, and would enable the owners to avoid unnecessarily complex dealings with each other and with the State Revenue Department and the Australian Taxation Office. It must be said that the Tribunal does not consider that the ownership arrangements of the two lots as explained by Mr Colam, and any potential dealings the owners might have with the taxation authorities, bear any weight in the consideration of the planning merits of these matters.
Reciprocal access arrangements and efficient use of land and resources
37 Mr Bouwhuis acknowledged that a condition requiring easements and a reciprocal access agreement can be imposed and had been imposed previously by the respondent. His submission, however, was that these previous
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- approvals had been in error, as the tenure arrangements were not consistent with orderly and proper planning. Mr Bouwhuis had reservations about imposing a condition in which individual landowners would be subject to a vehicular access arrangement that current or subsequent landowners may want in future to alter in the event of a dispute. He was of the view that landowners could vary or discharge the agreement between the parties pursuant to the TL Act or the ST Act and this could result in the access being inconsistent with DC 2.2, the Codes and DPS 24. In his opinion, the proposed access arrangements were convoluted and added an additional layer of complexity.
38 The respondent's bundle of documents included reference to the preference expressed in an officer's report to the Council of the City of Bayswater (City) on 21 August 2007 that Lot 54 and Lot 55 be amalgamated and then subdivided into four survey strata lots, retaining the houses and one 3.2 metre wide common property access leg providing vehicular access to the two rear lots. No reciprocal rights of access agreement would then be necessary. The applicant referred to this report as indicating that 3.2 metres was an acceptable width and the respondent said the report supported the need for a form of subdivision that did not rely on easements.
39 Mr Allerding said the examples of the grant of easement included with the applicant’s submission demonstrated that agreed arrangements for access were straightforward and would remain in place. He was of the view that the landowners would accept the access arrangements in the same way as if the whole access leg were a common property lot. He also said that landowners would need to reach an agreement to dissolve or extinguish the reciprocal rights of access agreement. It could not be done unilaterally as a result of a dispute as feared by the respondent. In his view, it would be most unlikely that any party would act to deny access to their own lot. In any event, a condition imposed on the subdivision approval would be enforceable.
40 Both witnesses noted the concern expressed by the City that it not be a party to the proposed reciprocal access arrangements because of the difficulty of resolving disagreements between landowners. They agreed that this could be overcome by the City not being party to any reciprocal access agreement.
41 Mr Allerding argued that, if planning were to be outcomes based, then the relevant planning policies must not be used inflexibly, which was consistent with the established planning principle that policy is not to be applied as if it were
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- a rigid rule. He restated the evidence that the respondent had supported the use of cross-easements in other subdivisions in the metropolitan region where the circumstances of subdivision were analogous. He was of the opinion that, if a good planning outcome would result, then this approach should be used.
42 Mr Allerding developed the argument that allowing the proposed subdivision and cross-easements would be consistent with the objectives at s 3(1)(b) of the PD Act, which provides for an efficient and effective land use planning system in the State. He submitted that it followed from this that the purpose of an efficient and effective land use planning system is efficient and effective land use planning. It was his submission that it would be contrary to this objective if, as contended by the respondent, there was required to be two adjoining 3 metre wide access driveways to the rear lots. A 6 metre wide access leg would be the equivalent of a residential street carriageway. In his opinion, the solution proposed by the applicant promoted sustainable use and development of the land.
43 Mr Allerding further said that the proposed access arrangements would be consistent with the objective at cl 1.6(h) of DPS 24 which is "to promote coordinated development proposals and vehicular circulation systems". The Tribunal is of the view that the overarching objectives of the PD Act and TPS 24 assist in establishing the planning framework, and while a proposal might be consistent with the objectives, this, of itself, is not sufficient to determine the matter. It is still necessary to examine the particular planning merits of the proposals.
Comment and conclusion
44 Survey strata lots that do not have frontage to a gazetted road require frontage to a common property lot which provides vehicular and pedestrian access. It is common for there to be one access leg providing access to more than one rear survey strata lot, although this is usually in circumstances where the survey strata lots are created from a single parent lot.
45 The Codes and DC 2.2 provide for a 3 metre wide access leg, particularly where a house is to be retained. If the two lots in this instance were not adjoining, then each subdivision would require a leg of this minimum width for vehicle access, and this could only be achieved by the existing house being demolished.
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46 The lots do, however, adjoin, and the photographs show brick and tile homes on each of Lot 54 and Lot 55. There was no evidence to suggest they were approaching the end of useful life. The preference of the City is that the two lots be amalgamated and re-subdivided so there is one common lot of 3.2 metres width. Mr Bouwhuis said that the lots adjoining was not relevant and the retention of the two houses should not be at the expense of a separate 3 metre minimum width accessway being provided for each rear survey strata lot.
47 The applicant has said that the owners do not wish to amalgamate. They wish to retain the houses and are seeking approval of the form of subdivision and cross-easements now before the Tribunal. This would result in the rear survey strata lots having a single 3.2 metre wide access leg for vehicles consistent with the access width normally allowable for grouped dwelling lots.
48 The Tribunal considers that a single 3.2 metre wide access leg, rather than two 3 metre wide access legs side by side, is sufficient to provide vehicular access and services to the two rear lots that will be created as a result of the two subdivisions. If the total width of the access leg is acceptable, the concern then is whether the form of tenure is acceptable in planning terms. If the proposed tenure arrangements are acceptable then Shepparddoes not provide authority for refusal of the current applications. That matter was concerned with an access leg below a 3 metre minimum standard on a subdivision that did not include reciprocal rights of carriageway on neighbouring land.
49 The Tribunal notes that access easements and reciprocal access agreements, referred to by the applicant, have been used in the circumstances sufficiently similar to this instance. In cl 3.6.9 of DC 2.2, the respondent requires reciprocal rights of access over adjoining battleaxe access legs, although it is for legs 3 metres wide. These examples reveal that use of such agreements is not novel in subdivisions.
50 The particular circumstances of this matter provide an opportunity to create lots consistent with the density coding, to retain the use of two existing houses and to provide an access leg to the rear lots of a standard provided for in the Codes and DC 2.2.
51 The Tribunal is satisfied that easements for access and appropriate agreements for reciprocal rights of access would provide a workable means of access for the rear lots. The Tribunal is also persuaded that the access
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- arrangements will endure because there can be no unilateral dissolution of the arrangements by an individual owner or by owners in dispute. Section 136J of the TL Act requires that any application to the Commissioner for discharge or alteration of any easement include the agreement of any person who has an interest in the land. The Tribunal is persuaded that it will remain in the interests of the rear lot owners to retain the easements and so retain vehicular access to their lots.
52 The Tribunal has therefore concluded that, in addressing the issue in this proceeding, the form of subdivision of each lot and the access arrangement to be agreed are consistent with orderly and proper planning.
53 Both DR 400 of 2007 and DR 401 of 2007 have been approved subject to conditions which will ensure the access arrangements are put in place.
Conditions
54 As directed by the Tribunal, the respondent provided, without prejudice to its position, a schedule of conditions it would want imposed were the subdivisions to be allowed. Mr Bouwhuis and Mr Allerding agreed that items such as windows opening onto the proposed access leg or any potential obstruction of the proposed driveway by eaves or sills could be addressed by conditions requiring modification of the existing dwelling. The Tribunal pointed out at the hearing that the recommended schedule of conditions did not address this point, particularly in respect of the eaves of each house. The respondent provided an amended schedule of conditions. Condition 12 read:
"Any obstructions into the 1.6 metre wide common property lot, including any obstructions created by the eaves and windows of the existing dwelling on proposed lot 1 are to be removed."
55 The applicant submitted that there should be added to this condition:
"… with the exception of gutters which may project no more than 100 millimetres into the common property lot."
56 It was said that this amendment would allow for a minor intrusion of 100 millimetres for gutters only. This, it was said, would not affect accessibility, as within the 3.2 metre access, there would be sufficient width to accommodate a 3 metre access leg in accordance with the Codes.
57 The Tribunal does not agree that building intrusion into this access leg from a neighbouring lot should be allowed. A potential source of disputes about rights and obligations in respect of the intrusion is therefore removed, which is
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- considered important in a situation where close to the minimum access width for an access leg is being created. The Tribunal therefore found that condition 12 should be imposed as recommended by the respondent.
Orders
58 In the matter of DR 400 of 2007:
1. The application for review is allowed.
2. The decision of the Western Australian Planning Commission dated 26 October 2007 is set aside and the subdivision of No 227 (Lot 54) Coode Street, Bedford as set out in the sketch dated 25/01/07 is approved subject to compliance with the following conditions:
1) Arrangements being made to the satisfaction of the respondent and to the specification of Western Power, for the provision of an underground electricity supply service to the survey strata lots shown on the approved plan of subdivision, which may include the provision of necessary service access rights either as an easement under s 136C and Sch 9A of the Transfer of Land Act 1893 (WA) for the transmission of electricity by underground cable or via a portion of the common property suitable for consumer mains. (Western Power)
2) All buildings having the necessary clearance from the new boundaries as required by the City of Bayswater District Town Planning Scheme No 24. (Local Government)
3) The common property lot being constructed and drained at the subdivider's cost to the specifications of the local government. (Local Government)
4) The existing dwelling on Lot 1 is to comply with the requirements for grouped dwellings within an R25 coding relating to the provision of a storeroom, two car parking bays and
- open space under the Residential Design Codes of Western Australia(Variation 1) (2008) (Statement of Planning Policy No 3.1, gazetted 29 April 2008). (Local Government)
- 5) All buildings, outbuildings and/or structures on Lot 2 and the common property lot being demolished and the materials removed. (Local Government)
6) All septic sewer systems, including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems, are to be decommissioned, removed, filled with clean sand and compacted. A statutory declaration must be provided by the landowner declaring that these works have been undertaken in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA). (Local Government)
7) Suitable arrangements being made with the local government for the provision of a vehicular crossover to service the common property lot shown on the approved plan of subdivision. (Local Government)
8) Suitable arrangements being made with the Water Corporation for the provision of a suitable water supply service to the lots shown on the approved plan of subdivision. (Water Corporation)
9) Suitable arrangements being made with the Water Corporation for the provision of a suitable sewerage supply service to the lots shown on the approved plan of subdivision. (Water Corporation)
10) Suitable arrangements being made with the Water Corporation for the drainage of the land
- either directly or indirectly into a drain under the control of that body. (Water Corporation)
- 11) The owner of the land entering into an agreement with the owner of Lot 55 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 55 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land in accordance with s 136C of the Transfer of Land Act 1893 (WA). (Western Australian Planning Commission)
12) Any obstructions into the 1.6 metre wide common property lot, including any obstructions created by the eaves and windows of the existing dwelling on proposed Lot 1, are to be removed.
59 In the matter of DR 401 of 2007:
1. The application for review is allowed.
2. The decision of the Western Australian Planning Commission dated 26 October 2007 is set aside and the subdivision of No 225 (Lot 55) Coode Street, Bedford as set out in the sketch dated 25/01/07 is approved subject to compliance with the following conditions:
1) Arrangements being made to the satisfaction of the respondent and to the specification of Western Power, for the provision of an underground electricity supply service to the survey strata lots shown on the approved plan of subdivision, which may include the provision of necessary service access rights either as an easement under s 136C and Sch 9A of the Transfer of Land Act 1893 (WA) for the transmission of electricity by underground cable or via a portion of the common property suitable for consumer mains. (Western Power)
- 2) All buildings having the necessary clearance from the new boundaries as required by the City of Bayswater District Town Planning Scheme No 24. (Local Government)
3) The common property lot being constructed and drained at the subdivider's cost to the specifications of the local government. (Local Government).
4) The existing dwelling on Lot 1 is to comply with the requirements for grouped dwellings within an R25 coding relating to the provision of a storeroom, two car parking bays and open space under the Residential Design Codes of Western Australia (Variation 1) (2002) (Statement of Planning Policy No 3.1, gazetted 29 April 2008). (Local Government)
5) All buildings, outbuildings and/or structures on Lot 2 and the common property lot being demolished and the materials removed. (Local Government)
6) All septic sewer systems, including all tanks and pipes and associated drainage systems (soakwells or leach drains) and any stormwater disposal systems, are to be decommissioned, removed, filled with clean sand and compacted. A statutory declaration must be provided by the landowner declaring that these works have been undertaken in accordance with the Health (Treatment of Sewerage and Disposal of Effluent and Liquid Waste) Regulations 1974 (WA) Local Government)
7) Suitable arrangements being made with the local government for the provision of a vehicular crossover to service the common property lot shown on the approved plan of subdivision. (Local Government)
8) Suitable arrangements being made with the Water Corporation for the provision of a suitable water supply service to the lots shown on the approved plan of subdivision. (Water Corporation)
- 9) Suitable arrangements being made with the Water Corporation for the provision of a suitable sewerage supply service to the lots shown on the approved plan of subdivision. (Water Corporation)
10) Suitable arrangements being made with the Water Corporation for the drainage of the land either directly or indirectly into a drain under the control of that body. (Water Corporation)
11) The owner of the land entering into an agreement with the owner of Lot 54 Coode Street, Bedford to ensure reciprocal rights of access over the 1.6 metre wide common property lot shown on the approved plan of subdivision and the abutting 1.6 metre wide common property lot shown on the approved plan of subdivision for Lot 54 Coode Street, Bedford. Any easements created as part of the agreement are to be noted on the survey strata plan for the land in accordance with s 136C of the Transfer of Land Act 1893 (WA). (Western Australian Planning Commission)
12) Any obstructions into the 1.6 metre wide common property lot, including any obstructions created by the eaves and windows of the existing dwelling on proposed Lot 1, are to be removed.
I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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