Western Australian Planning Commission and Diggins
[2008] WASAT 9
•29 JANUARY 2008
WESTERN AUSTRALIAN PLANNING COMMISSION and DIGGINS [2008] WASAT 9
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 9 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:342/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 28/01/08 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Determination of Tribunal in DR 153 of 2007 revoked and determination substituted that subdivision approval is refused | ||
| B | |||
| PDF Version |
| Parties: | WESTERN AUSTRALIAN PLANNING COMMISSION SEAN KEENAN DIGGINS |
Catchwords: | Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 Tribunal granted subdivision approval for battleaxe rural residential subdivision Current lot configuration generally consistent with and created pursuant to development guide plan Local planning scheme states that no further subdivision will be permitted of lots created pursuant to development guide plan Whether Tribunal erred in law Whether subdivision is incapable of approval Whether approval of subdivision conflicts with provision of local planning scheme Whether statutory exception established to enable approval notwithstanding conflict Whether hardship enables approval |
Legislation: | Planning and Development Act 2005 (WA), s 138, s 241(3), s 244 Shire of Busselton District Town Planning Scheme No 20, cl 85 State Administrative Tribunal Act 2004 (WA), s 3(1) State Administrative Tribunal Rules (WA), r 10 Town Planning and Development Act 1928 (WA), s 20(5) |
Case References: | Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110 |
Orders | 1. The application for review by the President in relation to the determination made on 11 September 2007 in proceedings DR 153 of 2007 is allowed.,2. The decision and orders made by the Tribunal on 11 September 2007 in proceedings DR 153 of 2007 are revoked.,3. The application for review of the decision of the Western Australian Planning Commission to refuse subdivision approval of Lot 204 Autumn Rise, Yallingup into two lots is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WESTERN AUSTRALIAN PLANNING COMMISSION and DIGGINS [2008] WASAT 9 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 JANUARY 2008 FILE NO/S : DR 342 of 2007 BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION
- Applicant
AND
SEAN KEENAN DIGGINS
Respondent
Catchwords:
Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Tribunal granted subdivision approval for battleaxe rural residential subdivision - Current lot configuration generally consistent with and created pursuant to development guide plan - Local planning scheme states that no further subdivision will be permitted of lots created pursuant to development guide plan - Whether Tribunal erred in law - Whether subdivision is incapable of approval - Whether approval of subdivision conflicts with provision of local planning scheme - Whether statutory exception established to enable approval notwithstanding conflict - Whether hardship enables approval
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Legislation:
Planning and Development Act 2005 (WA), s 138, s 241(3), s 244
Shire of Busselton District Town Planning Scheme No 20, cl 85
State Administrative Tribunal Act 2004 (WA), s 3(1)
State Administrative Tribunal Rules (WA), r 10
Town Planning and Development Act 1928 (WA), s 20(5)
Result:
Application for review allowed
Determination of Tribunal in DR 153 of 2007 revoked and determination substituted that subdivision approval is refused
Category: B
Representation:
Counsel:
Applicant : Ms CA Ide
Respondent : Mr MJ Hardy
Solicitors:
Applicant : State Solicitor's Office
Respondent : Hardy Bowen
Case(s) referred to in decision(s):
Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110
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Summary of President's decision
1 The Western Australian Planning Commission sought review by the President of a determination of the Tribunal in which it granted subdivision approval for a two-lot subdivision. The Commission argued that the Tribunal erred in law, because it failed to conclude that it had no power to approve the subdivision.
2 The President determined that the Tribunal erred in law. The approval of the subdivision conflicts with a clause of the applicable local planning scheme, because the subdivision is inconsistent with the approved and adopted development guide plan, which does not provide for further subdivision, and because the site was created pursuant to the scheme. None of the exceptions that would enable approval of the subdivision, notwithstanding the conflict, were established. Consequently, the proposed subdivision is prohibited or incapable of approval.
3 The determination of the Tribunal was revoked and a determination was substituted that subdivision approval is refused.
Application for review by President
4 The Western Australian Planning Commission (Commission) has applied under s 244 of the of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 11 September 2007 in which the Tribunal granted subdivision approval under s 135 of the PD Act for a rural residential two-lot battleaxe subdivision of land known as Lot 204 Autumn Rise, Yallingup (site) – see Diggins and Western Australian Planning Commission [2007] WASAT 235.
5 Section 244 of the PD Act enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr L Graham who is not a legally qualified member.
6 In an application for review in the Tribunal's prescribed form, filed on 11 October 2007, the Commission sought an order under r 10 of the State Administrative Tribunal Rules 2004 (WA) extending time by one day for the
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- commencement of these proceedings. Section 244(3) of the PD Act requires that an application for review by the President under that section must be made by a party within one month after the determination is given to the party. However, on 10 October 2007, that is, within one month of the date of the determination, the Commission filed a document entitled "Application for review under s 244 of the Planning and Development Act 2005" which set out the Commission's ground for review with particulars. Although the filing fee was not paid on 10 October 2007, it appears that this document was accepted by the executive officer as an application. In any case, the determination in this case was posted by the Tribunal to the parties. The determination was, therefore, not "given" to the Commission until it was received in the post, probably on 12 September 2007. For these reasons, the application for review by the President is not out of time, and an extension of time is not required.
Background
7 Mr SK Diggins, who is the owner of the site, lodged the subdivision application for approval to subdivide the site into two lots with the Commission on 1 January 2007. The subdivision application was refused by the Commission on 30 March 2007 for six reasons which were set out in full by Mr Graham at [9] of the Tribunal's reasons for decision. The first two reasons for refusal were as follows:
"1. The subject land is located within the 'Rural Residential' zone in the Shire of Busselton District Town Planning Scheme No 20. Clause 85(1) of the Scheme states that 'subdivision and development shall be generally in accordance with the Rural Strategy adopted by the Council and the Western Australian Planning Commission for the district, and where applicable, the Development Guide Plan approved and adopted by the Council and the Western Australian Planning Commission'. The proposed subdivision is inconsistent with the endorsed development guide plan for the locality, which identifies the subject land as a single rural residential lot.
2. Clause 85(2) of the Shire of Busselton District Town Planning Scheme No 20 states that 'Except in the case of expressly approved stage subdivision, no further subdivision of lots created pursuant to sub-clause (1) will be permitted'. The subject applicant is inconsistent with
- Clause 85(2) as it proposes the further subdivision of a rural residential lot identified on an endorsed Development Guide Plan."
8 On 26 April 2007, Mr Diggins sought review under s 251(1) of the PD Act of the Commission's decision to refuse the proposed subdivision. At [15] and [16] of the Tribunal's reasons for decision, Mr Graham summarised the parties' positions in the review. The respondent's position included the following:
"Under section 138(2) of the PD Act an approval cannot be given to a proposal that conflicts with the provisions of a local planning scheme, unless criteria listed under section 138(3) apply. None of the criteria under s 138(3) apply, and the proposed subdivision directly conflicts with clause 85(1) and clause 85(2) of [the Shire of Busselton District Town Planning Scheme No 20 (TPS 20)]." ([15](c)).
9 Mr Graham set out cl 85 of TPS 20 at [25] of the reasons. Subclauses (1) and (2) of cl 85 are quoted in the Commission's first two reasons for refusal set out earlier. Subclause (3) of cl 85 is in the following terms:
"Where the subdivision of lots either:
(a) Not included within an approved Subdivision or Development Guide Plan; or
(b) Where no lot size is prescribed in the Rural Strategy adopted by Council and the WA Planning Commission; or
(c) Comprising re-subdivision of lots included within an approved subdivision or Development Guide Plan is proposed, Council shall not recommend approval of such subdivision prior to approval by Council and the WA Planning Commission of a Development Guide Plan prepared consistent with Clause 25 of the Scheme."
10 At [48] of the reasons, Mr Graham set out extracts from s 138(2) and s 138(3) of the PD Act. These subsections state, in part, as follows:
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- "(2) Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.
(3) The Commission may give approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if -
(a) the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding five years and the approval is consistent with a State planning policy that deals with substantially the same matter; …
(c) in the opinion of the Commission -
(i) the conflict is of a minor nature; …"
"(a) Would an approval to allow the proposed subdivision be contrary to orderly and proper planning?
(b) Would an approval be likely to create a precedent for landowners of similar sized lots to seek subdivision in the Commonage Precinct?
(c) Is there an argument to approve the application on the grounds of hardship?"
12 Significantly, Mr Graham failed to identify - and subsequently failed directly to address - the threshold issue raised in the Commission's first two reasons for refusal and in its position summarised by the senior sessional member at [15(c)], namely whether approval of the proposed subdivision conflicts with cl 85(1) and cl 85(2) of TPS 20 and, therefore, whether the proposed subdivision is incapable of approval. For reasons which follow, in my opinion, this omission was fundamental, because if, as the Commission contends, the subdivision is incapable of approval under
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- s 138 of the PD Act, the three merit planning issues identified by Mr Graham at [17] of the reasons do not arise for determination.
13 Mr Graham subsequently, at [27] - [28] and [92] - [95], referred briefly in passing to the Commission's contention that the proposed subdivision is in conflict with cl 85 of TPS 20. He expressed the view that the Tribunal is not "fettered" (at [28]) or "constrained" (at [95]) by that clause. For reasons discussed below, this view reflects a misunderstanding of s 138(2) and s 138(3) of the PD Act and involves legal error. As Senior Member Mr D Parry said in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 at [21]:
"Section 138 of the PD Act effected a significant change in planning law concerning subdivision in Western Australia. Where approval of a subdivision conflicts with a provision of a local planning scheme such as TPS 20 the subdivision is prohibited unless one of the six exceptions set out in s 138(3) is established.": see also Rocca & Anor and Western Australian Planning Commission [2007] WASAT 110 at [29].
14 Mr Graham's view that the Tribunal is not "fettered" or "constrained" by cl 85 of TPS 20 was a correct statement of the law as it stood under s 20(5) of the Town Planning and Development Act 1928 (WA) (TPD Act). However, it is an incorrect statement of the law in relation to a subdivision application which is to be determined in accordance with the PD Act which replaced the TPD Act on 9 April 2006.
Ground for review by President
15 The sole ground for review under s 244 of the PD Act is that Senior Sessional Member Graham "erred in law by failing to conclude that the Tribunal had no power to approve the proposed subdivision". In support of this ground, the Commission relies on the following particulars:
"(a) Pursuant to clause 85(2) of [TPS 20], further subdivision of lots created pursuant to clause 85(1) is not permitted except in the context of approved staged subdivision.
(b) The subject land was created pursuant to clause 85(1).
(c) The proposed subdivision is not an approved staged subdivision.
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- (d) Pursuant to clause 85(1), subdivision must be consistent with a development guide plan adopted by the Shire Council and the [Commission].
(e) The relevant development guide plan does not provide for further subdivision of the subject land.
(f) Pursuant to section 138(2) of the [PD Act], the Tribunal cannot approve the proposed subdivision where it is inconsistent with TPS 20 unless at least one of the criteria listed under section 138(3) apply.
(g) None of the criteria listed under section 138(3) apply."
Review of determination
16 Senior Sessional Member Graham erred in law in relation to cl 85 of TPS 20 and s 138 of the PD Act. Mr Graham erred in failing to identify and directly address a fundamental, threshold issue, namely whether the proposed subdivision is incapable of approval. Insofar as he referred, in passing, to cl 85 of TPS 20, Mr Graham erred in expressing the view that the Tribunal is not "fettered" or "constrained" by that provision. Finally, having regard to his findings in relation to a development guide plan, which he referred to as the "Lot 1 DGP" and the site, Mr Graham erred in law, as alleged by the Commission, by failing to conclude that the Tribunal had no power to approve the proposed subdivision. Mr Graham's relevant findings in relation to the Lot 1 DGP and the site were that the Lot 1 DGP -
• "is a 'site-specific' DGP and includes the subject land" (at [98]);
• "outlines a detailed design and subdivision for Lot 1 [including the site]" (at [37]);
• "was approved by the [Commission] on 28 March 2002 and created the subject land" (at [37])/the site "was created … in accordance with the Lot 1 DGP" ([18]); and
• advises that "no further subdivision will be supported by Council" (at [98]; see also [38]).
17 Having regard to these findings -
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- • approval of the proposed subdivision conflicts with cl 85(1) of TPS 20, because subdivision is inconsistent with the approved and adopted development guide plan which does not provide for further subdivision of the site; and
• approval of the proposed subdivision conflicts with cl 85(2) of TPS 20, because the site was created pursuant to cl 85(1) and does not involve an expressly approved staged subdivision; and
• none of the exceptions set out in s 138(3) of the PD Act is relevantly established.
18 Mr MJ Hardy, counsel for Mr Diggins, makes three submissions in opposition to the application for review of the Tribunal's determination.
19 First, Mr Hardy submits that -
• "there is a conflict between cl 85(2) insofar as it purports to have general application and cl 85(3)(c) which deals with the specifics of a re-subdivision of the land the subject of this application which, it is acknowledged, falls within an existing approved subdivision and is within the scope of Precinct 5B DGP and the Lot 1 DGP";
• "the inconsistency arises because of the purported prohibition imposed by cl 85(2) but a lesser 'constraint' on recommendation" in cl 85(3)(c)";
• "the present application falls within the scope of cl 85(3), in that it comprises a re-subdivision of a lot included within an approved subdivision and DGP"; and
• "as a consequence, the erstwhile prohibition created by cl 85(2) is ameliorated by the lesser prohibition encompassed in cl 85(3)(c), dealing specifically with the concept of 're-subdivision', which is applicable in this instance."
20 However, while the drafting of cl 85 of TPS 20 leaves something to be desired, there is no conflict or inconsistency between cl 85(2) and cl 85(3)(c). The expressions "further subdivision" in cl 85(2) and "re-subdivision"
(Page 10)
- "re-subdivision" in cl 85(3)(c) are relevantly synonymous. The existence of the two subclauses is explicable, because they are directed to different authorities; subclause (2) is directed to the Commission as the authority responsible for subdivision in Western Australia, whereas subclause (3)(c) is directed to the Shire of Busselton (Shire), which authority is restricted to making recommendations in relation to subdivision. However, the subclauses are consistent with one another, because they both contemplate that no further subdivision/re-subdivision of a lot created pursuant to cl 85(1) can occur unless and until a further development guide plan that contemplates the further subdivision/re-subdivision is approved by the Shire and the Commission. In circumstances where a further development guide plan that contemplates further subdivision/re-subdivision of a lot is approved, cl 85(1) and cl 85(2) would not preclude the Commission from granting approval to a further subdivision/re-subdivision that is generally in accordance with the further, adopted development guide plan. Similarly, cl 85(3)(c) would not preclude the Shire from recommending approval of such a subdivision.
21 Mr Hardy's second, and alternative, submission is that either or both of two exceptions set out in s 138(3) of the PD Act are established, namely the exceptions in par (a) and par (c)(i), such that the proposed subdivision is capable of approval, notwithstanding conflict with cl 85 of TPS 20.
22 In relation to the exception in par (a) of s 138(3), it is common ground that TPS 20 was first published more than five years ago and that a consolidation of TPS 20 has not been published for over five years. Mr Hardy submits that "the approval is consistent with a State planning policy that deals with substantially the same matter" (to quote par (a)), namely the Leeuwin Naturaliste Ridge Statement Planning Policy 6.1 (SPP 6.1). Mr Hardy refers in this regard to Mr Graham's finding at [84] that "SPP 6.1 [is] of little assistance now as rural/residential zoning has already been put into place and the resulting Development Guide Plans (DGP) have adopted the 'cluster principles' advocated in SPP 6.1".
23 However, the aspects of SPP 6.1 referred to in the finding by Mr Graham do not "deal with substantially the same matter" as cl 85(1) and cl 85(2) of TPS 20. It is not sufficient, in order to invoke the exception set out in par (a), for the approval to be consistent with a State planning policy generally. The approval must be consistent with a State planning policy "that deals with substantially the same matter" as the provision of the local planning scheme with which approval is in conflict.
(Page 11)
24 Further, or in the alternative, Mr Hardy submits that "the conflict is of a minor nature" within the meaning of par (c) of s 138(3), because the application seeks approval for only two lots with areas of marginally over one hectare each, there is only a "modest deviation" from an applicable, but more general, development guide plan than the Lot 1 DGP, namely the Precinct 5B Development Guide Plan, which contemplates an average lot size of 3.1 hectares whereas the resulting average lot size would be 2.9 hectares, there are other one hectare lots in the area and there have been other examples of re-subdivision of rural residential lots.
25 However, the relevant "conflict" is with provisions of the local planning scheme which require that subdivision is to be generally in accordance with, among other documents, the Lot 1 DGP that provides that no further subdivision will be supported, and which precludes further subdivision of the site (without approval of a further development guide plan that contemplates the further subdivision). The conflict between approval of the proposed subdivision and the relevant provisions of the local planning scheme is fundamental and not of a minor nature.
26 Mr Hardy's third submission is that s 241(3) of the PD Act entitles the Tribunal to override provisions of a local planning scheme. Section 241(3) states as follows:
"In determining an application for a review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than three lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles."
27 At [76] of the reasons, Mr Graham found that Mr Diggins "suffers from genuine chronic health problems which, although not life-threatening, seriously jeopardise his long term health, wellbeing and capacity to work full-time". It also appears from [111] - [113] of the reasons that the senior sessional member found that regard to hardship in the circumstances of the case will not affect the application of sound planning principles.
28 However, s 241(3) of the PD Act requires the Tribunal to take into account a consideration of hardship in the exercise of planning discretion as to whether to approve an application to subdivide a lot into not more than three lots.
(Page 12)
- The subsection has no application where planning discretion does not arise.
29 As noted earlier, the introduction of s 138 of the PD Act has effected a significant change in planning law concerning subdivision in Western Australia. Whereas previously no subdivision was prohibited or incapable of approval, with the result that a planning discretion to approve a subdivision was enlivened in every case, since the commencement of the PD Act, a subdivision application will be prohibited or incapable of approval where approval conflicts with a provision of a local planning scheme, unless one of the exceptions set out in s 138(3) is established. In this case, for reasons discussed earlier, the proposed subdivision is incapable of approval because of the conflict with cl 85 of TPS 20. As the subdivision cannot be approved in the exercise of planning discretion, considerations that would otherwise guide or inform the exercise of discretion are not relevant.
Conclusion
30 Senior Sessional Member Graham erred in law by failing to conclude that the Tribunal had no power to approve the proposed subdivision. The approval of the proposed subdivision conflicts with cl 85 of TPS 20. None of the exceptions set out in s 138(3) of the PD Act, which would enable the approval of the proposed subdivision notwithstanding the conflict, have been established. Consequently, the proposed subdivision is incapable of approval.
31 It follows that the determination of the Tribunal made on 11 September 2007 granting subdivision approval should be revoked and a determination should be substituted that subdivision approval is refused.
Orders
32 I make the following orders:
1. The application for review by the President in relation to the determination made on 11 September 2007 in proceedings DR 153 of 2007 is allowed.
2. The decision and orders made by the Tribunal on 11 September 2007 in proceedings DR 153 of 2007 are revoked.
3. The application for review of the decision of the Western Australian Planning Commission to refuse subdivision approval of Lot 204 Autumn Rise, Yallingup into two lots is affirmed.
- I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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