WESTERN AUSTRALIAN PLANNING COMMISSION and RUFUS

[2008] WASAT 20

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   WESTERN AUSTRALIAN PLANNING COMMISSION and RUFUS [2008] WASAT 20

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   5 FEBRUARY 2008

FILE NO/S:   DR 410 of 2007

BETWEEN:   WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

GLENDA LOUISE RUFUS
Respondent

Catchwords:

Review by the President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Whether any question of law raised

Legislation:

Planning and Development Act 2005 (WA), s 244, s 251(3)
Shire of Denmark Town Planning Scheme No 3, cl 5.2.3
State Administrative Tribunal Act 2005 (WA), s 3(1)

Result:

Application for review dismissed
Determination of Tribunal in DR 196 of 2007 affirmed

Category:    B

Representation:

Counsel:

Applicant:     Ms KL Pope

Respondent:     Self-represented

Solicitors:

Applicant:     State Solicitor's Office

Respondent:     Self-represented

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

Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433

Hart and Western Australian Planning Commission [2007] WASAT 187

Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130

Lawson and Shire of Mundaring [2005] WASAT 1; (2005) 41 SR (WA) 67

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

Rufus and Western Australian Planning Commission [2007] WASAT 281

Williams and Western Australian Planning Commission [2005] WASAT 10

REASONS FOR DECISION OF THE PRESIDENT: 

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.  However, the application for review did not raise any question of law concerning the determination.  The application for review was dismissed and the determination of the Tribunal was affirmed.

Application for review by President

1. The Western Australian Planning Commission (Commission) has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 26 October 2007 in which the Tribunal granted subdivision approval for a two lot subdivision at Lot 77 Inlet Drive, Denmark (site) ‑ see Rufus and Western Australian Planning Commission [2007] WASAT 281.

2. 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 R Easton, who is not a legally qualified member. However, no question of law concerning the determination is raised in the review. What the Commission appears to ultimately seek is a factual or merits redetermination. As I said in Lawson and Shire of Mundaring [2005] WASAT 1; (2005) 41 SR (WA) 67 at [10], I do not have power to undertake such a review.

Background

1. On 23 August 2006, Ms GL Rufus sought approval from the Commission to subdivide the site into two lots with areas of 1010 square metres and 1014 square metres.

2. The site is located approximately 3.5 kilometres south of the township of Denmark and is approximately 220 metres west of the high water mark of Wilson Inlet.

3. The site originally comprised two lots, each of approximately the same size as the lots the subject of the proposed subdivision, which were amalgamated in 1984.

4. The two lots to the north of the site and three lots to the south each have an area of 1024 square metres.  The majority of the lots in the immediate vicinity are less than 1200 square metres in area.

5. On 15 March 2007, the Commission refused to approve the proposed subdivision on the basis that it is inconsistent with the relevant planning framework and would create an undesirable precedent for the subdivision of similar lots in the general locality.  On 11 April 2007, Ms Rufus sought reconsideration of the refusal, and, on 3 May 2007, the Commission reiterated its decision.

6. On 21 May 2007, Ms Rufus applied to the Tribunal for review of the Commission's decision to refuse to reconsider its decision under s 251(3) of the PD Act. The matter proceeded to a final hearing before the Tribunal constituted by Senior Sessional Member Easton on 10 August 2007. Following the hearing, the Tribunal reserved its decision.

7. On 26 October 2007, the Tribunal delivered a written decision in which it allowed the application for review and granted approval to the proposed subdivision, subject to conditions.

Grounds for review by President

The Commission has identified the following two grounds for review:

"1.The learned Senior Sessional Member erred in finding that the proposed subdivision justified departure from the R2 Coding under the Shire of Denmark Town Planning Scheme No 3 and Development Control Policy 2.2, Residential Subdivision.

2.The learned Senior Sessional Member erred in finding that the proposed subdivision is 'unobjectionable' and therefore that the issue of adverse planning precedent did not arise in relation to the proposed subdivision."

Consideration of application for review

Departure from coding

1. The site is subject to a residential density coding of "R2" under the Shire of Denmark Town Planning Scheme No 3 (TPS 3 or Scheme).  At [44], the Tribunal observed, correctly, as follows:

   "Although the subdivision proposal is not a development, the Tribunal is required to give due consideration to cl 5.2.3 of TPS 3 and its obvious expectation that residential development on land coded "R2" requires a minimum site area of 5000 square metres and a minimum frontage of 50 metres.  Furthermore, the Tribunal is required to give due consideration to [Development Control Policy DC 2.2 ‑ Residential Subdivision (DC 2.2)].  The [Residential Design Codes of Western Australia (2002) (Codes)] and DC 2.2 both provide guidelines to assist the [Commission], and therefore the Tribunal, in the exercise of discretion when considering applications for lots less than the minimum area required."

2. At [47], the Tribunal correctly identified the principles concerning the application of, and departure from, policy, by reference to my decision in Clive Elliot Jennings and Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24].

3. At [48], the Tribunal found that, in the particular review application before it, but subject to a further issue discussed at [51] to [84], it is appropriate to depart from the minimum site area and frontage contemplated by the coding, essentially because the proposed subdivision reinstates the historical subdivision pattern and facilitates the creation of an homogeneous streetscape pattern.  However, at [50], the Tribunal noted that, as the reason for the imposition of the "R2" coding in the locality is related to the need to avoid further deterioration of the water quality of Wilson Inlet from residential septic system leachates and nutrients from urban gardens, "before finally determining whether it is appropriate to depart from the requirements of TPS 3 and DC 2.2, it is now appropriate to consider the next issue".  The "next issue" identified by the Tribunal was whether the proposed subdivision should be granted approval having regard to the requirements of the Water Corporation's Draft Country Sewerage Policy (DCSP).

4. As the Tribunal noted earlier, at [25], the DCSP was prepared in September 2002 under the authority of four State Government Ministers, namely the Minister for Planning and Infrastructure, the Minister for Health, the Minister for Environment and the Minister for Local Government and Regional Development.  The DCSP was most recently amended in September 2003.  Clause 4.3 of the DCSP requires the provision of reticulated sewerage to all subdivisions "where the absence of sewerage is considered by the statutory authority, after considering the advice of consultative authorities, to endanger public health, the environment or the quality of underground or surface water supplies".  However, cl 5.1 of the DCSP provides the following exception from this requirement:

   "Proposals for small infill subdivision or density development can be considered where there is no potential for the creation of more than four additional lots, dwellings or single residential equivalents in the immediate vicinity (generally interpreted as within the street block), so that the proposal completes rather than extends an existing pattern of subdivision.  Lot sizes and land use shall be consistent with the existing pattern or subdivision or development."  (See, in relation to the meaning of this provision, Hart and Western Australian Planning Commission [2007] WASAT 187.)

5. After a detailed analysis at [51] - [83] of its reasons, the Tribunal found at [84] that the proposed subdivision meets the exemption in cl 5.1 of the DCSP, because the proposal is a small infill subdivision that completes an existing subdivision pattern where the lot size is consistent with the existing pattern of subdivision and where there is no potential for the creation of more than four additional lots in the immediate vicinity.  The Tribunal, therefore, found that it is appropriate, in the particular circumstance of the case, to depart from the provisions of TPS 3, the Codes and DC 2.2 insofar as they contemplate a minimum site area of 5000 square metres and a minimum frontage of 50 metres for residential lots on the site.

6. The Commission contends that the Tribunal erred in its consideration of the reason for imposition of the density coding "by effectively finding that if the proposed subdivision complied with the DCSP, then [it] could be satisfied that the proposed subdivision would not negatively impact on the Wilson Inlet". However, as the Tribunal noted at [54] of its reasons, cl 4.3 of the DCSP requires the provision of reticulated sewerage to all subdivisions "where the absence of sewerage is considered by the statutory authority … to endanger public health, the environment or the quality of … surface water supplies". As the reason for the density coding of the site was related to the need to avoid further deterioration of the water quality of Wilson Inlet from residential septic system leachates and nutrients from urban gardens, it was open to the Tribunal to determine that it is appropriate to depart from the minimum site area and frontage standards contemplated by the coding and grant subdivision approval in circumstances where one of the express exemptions from the requirement to provide reticulated sewerage in the DCSP is satisfied. The Tribunal's finding that the proposed subdivision meets the exemption in cl 5.1 of the DCSP involved a factual determination that is not subject to review under s 244 of the PD Act.

7. The Commission also contends that the Tribunal had evidence before it from a highly competent expert on issues relating to the potential for nutrient leaching into the Wilson Inlet, but failed to accord sufficient weight to that evidence, or alternatively, placed too much weight on compliance with the DCSP as being determinative of the fact that the minimum site area and frontage contemplated by the density coding should be departed from.  However, as I said in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17]:

   "Questions such as the adequacy of the evidence, the relevant significance or weight to be give to the evidence and appropriate findings to be made based on the evidence, are questions of fact, which are entirely within the province of the Senior [Sessional] Member to determine for himself, and do not ground any error of law (citations omitted)."

8. Finally, in relation to the first ground for review, the Commission seeks to contrast the circumstance of the case before the senior sessional member from the circumstances considered by the Tribunal in Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130. However, this contention does not involve a question of law concerning the determination.

Adverse planning precedent

1. At [88], the Tribunal referred to the decision in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 in which the Tribunal discussed, among other things, the concept of adverse planning precedent in planning assessment, and said that for precedent to be a relevant consideration, each of the following two tests must be satisfied:

   "(1) That the proposed development or subdivision is not in itself unobjectionable.

   (2) That there is more than a mere chance or possibility that there may be later undistinguished applications."

2. The Tribunal found, at [89], that the proposed subdivision is unobjectionable. This involved a finding of fact, not a determination upon a matter involving a question of law.

Conclusion

1. Neither of the Commission's grounds for review raises a question of law concerning the determination.  The Tribunal did not err in law in any respect.  Its determination was reasonably open on the evidence before it.

2. It follows that the application for review by the President should be dismissed and the determination of the Tribunal should be affirmed.

Orders

1. I make the following orders:

   1.The application for review is dismissed.

   2.The determination of the Tribunal made on 26 October 2007 in DR 196 of 2007 is affirmed.

I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT