WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2011] WASAT 94

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 94

MEMBER: MR J JORDAN (MEMBER)

HEARD: 6 APRIL 2011

DELIVERED : 23 JUNE 2011

FILE NO/S: DR 2 of 2011

BETWEEN: ROSS WILLIAMSON
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision - Refusal - Proposed creation of 27 lots of approximately 4,000 square metres plus new road - Subdivision site and surrounding lots zoned General Rural - Draft local planning scheme to rezone site to residential and allow lot sizes proposed - Weight to be given to draft local planning scheme - Requirement for structure plan in draft local planning scheme - Impact of subdivision on neighbouring land use potential - Impact of subdivision on future subdivision of neighbouring lots - Precedent - Orderly and proper planning

Legislation:

Environmental Protection Act 1986 (WA)
Environmental Protection (Noise) Regulations 1997 (WA)
Environmental Protection Regulations 1987 (WA)
Planning and Development Act 2005 (WA), s 138, s 138(3), s 138(3)(a), s 138(3)(e), s 253(3)
Residential Design Codes of Western Australia (2010), Table 1
Shire of Chapman Valley Town Planning Scheme No 1, Zoning and Development Table, Appendix 5A
State Administrative Tribunal Act 2004 (WA), s 31
Transfer of Land Act 1893 (WA), s 70A

Result:

The application for review is dismissed
The refusal of the subdivision application is affirmed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr P Spragg

Solicitors:

Applicant: Self-represented
Respondent: State Solicitor's Office

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

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the Western Australian Planning Commission to approve the subdivision of a rural zoned lot at Buller, a locality immediately to the north of Geraldton into 27 lots of about 4,000 square metres. The lot is in an area known as the Richards Road cell.
Relevant to the consideration of the matter was a recently advertised draft local planning scheme that included the site and neighbouring lots in a residential zone. Raised as an issue was whether the residential use of the proposed lots would result in a potential land use conflict with neighbouring rural zoned lots. Also considered was the weight to be afforded the draft local planning scheme and whether the preparation of a structure plan, referred to in the draft local planning scheme, was necessary before subdivision into residential lots could be considered.
The Tribunal formed the view that the likelihood of uses incompatible with residential subdivision being developed on lots neighbouring the site was minimal. This of itself was not considered sufficient, however, to support the creation of residential sized lots in a rural zone. For subdivision to be considered more was required. In this matter a relevant consideration was the draft local planning scheme which included the Richards Road cell in a residential zone.
The Tribunal formed the view that the draft local planning scheme was sufficiently 'seriously entertained' for the future residential use of the Richards Road cell to be settled and so provided a basis for the consideration of whether the proposed subdivision might be allowed.
The Tribunal further formed the view that the draft local planning scheme, if gazetted, would require the preparation of a structure plan before subdivision could be supported in the Richards Road cell. The question for the Tribunal was whether, because the local planning scheme was a draft, it would be appropriate to allow subdivision of the site without there first being in place a structure plan prepared and consistent with the requirements of the draft structure plan.
The Tribunal concluded that, to allow the proposed subdivision of the site without a form of structure plan available to illustrate the relationship between the proposed subdivision of the site and the future residential development of the Richards Road cell, would not be consistent with orderly and proper planning.
The Tribunal dismissed the application for review and affirmed the refusal of the respondent.

Introduction

These proceedings involve an application brought by Mr Ross Williamson (applicant), pursuant to s 253(3) of the Planning and Development Act 2005 (WA) (PD Act), for review of the deemed refusal of the Western Australian Planning Commission (Commission or respondent) of an application for approval to subdivide Lot 2 Wokarena Road, Buller (site) into 27 lots.
On 8 February 2011, the respondent, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) reconsidered its deemed refusal and resolved to again refuse the subdivision application.

Site and locality

The site has an area of 11.5242 hectares with a frontage of about 271 metres to North West Coastal Highway at the western boundary, a frontage of about 400 metres to Wokarena Road to the north and a frontage of 268 metres to Richards Road at the eastern boundary. The site has a common boundary of about 437 metres with Lot 1 to the south. The site is generally flat and cleared of vegetation. It is currently used for the agistment of horses and there is a two storey house in the northeast corner.
The site is one of 11 lots situated both sides of Richards Road, a northsouth road with a cul de sac at each end (the Richards Road cell). From about the centre of Richards Road, Wokarena Road extends westward to connect to North West Coastal Highway. Each lot in the Richards Road cell is between about 11.6 hectares and 12.7 hectares except for Lot 1 adjoining the site to the south which is about 20.9 hectares.
The Richards Road cell is bounded to the east by a reserve that once contained the Geraldton to Northampton Railway and which is to be the future alignment of a relocated North West Coastal Highway. To the east of that reserve is a special rural subdivision of lots of 2 hectares to 3 hectares. To the north of the Richards Road cell is a subdivision of lots also of about 2 hectares and to the south is a subdivision of 4,000 square metre lots. To the west, on the opposite side of North West Coastal Highway extending to the coast, are lots of about 9 hectares except for the lot immediately opposite the site which is 43 hectares.
The southern boundary of the Richards Road cell is the boundary between the Shire of Chapman Valley (Shire or Council), within which the site is located, and the City of GeraldtonGreenough (City). To the southwest in the City between Chapman Road and the coast is the residential suburb of Drummond Cove.

Planning framework

The site is zoned 'General Farming' in the Shire of Chapman Valley Town Planning Scheme No 1 (TPS 1). TPS 1 was gazetted on 20 August 1982. The 'Zoning and Development Table' of TPS 1 provides a policy statement for the 'General Farming Zone' as follows:
This zone embraces the broad acre farming areas of the Shire. It is intended to protect the economic liability of those areas generally and to preserve the rural character and appearance of the area. The lot sizes shall be at the discretion of Council based on what is locally accepted as a viable farm unit, or where a nonfarming use is proposed on the amount of land required for that purpose.
TPS 1 provides that a 'P' use is one which is '... permitted subject to compliance with Development Standards'. The Zoning and Development Table of TPS 1 includes as 'P' uses within the General Farming zone:
•Dwelling house
•Place of Worship
•Horse stables
•Veterinary hospital and consulting rooms
•Rural pursuit
•Industry - rural
•Stockyards
'Rural Pursuit' is defined in TPS 1 as follows:
Means the use of land for any of the purposes set out hereunder for trade, commercial reward or gain, including such buildings normally associated therewith -
(a)the growing of vegetables, fruit (except grapes), nuts, cereals or food crops;
(b)the rearing or agistment of goats, sheep, cattle or beasts of burden in accordance with stocking rates recommended by Agriculture WA;
(c)the stabling, agistment or training of horses;
(d)the growing of trees, plants, shrubs or flowers for replanting in a domestic, commercial or industrial gardens;
(e)the sale of produce grown locally on the lot;
but does not include the following except as approved by the Council:
(i)the keeping of pigs;
(ii)poultry farming;
(iii)the processing, treatment or packing of produce;
(iv)the breeding, rearing or boarding of domestic pets;
(v)Lot feeding.
'Industry - Rural' is defined in TPS 1 as follows:
Means an industry handling, treating, processing or packing primary products grown, reared or produced in the region and a workshop servicing plant or equipment used for rural purposes in the region.
Relevant to the consideration of this matter was the Shire's currently processing of its draft Local Planning Scheme No 2 (draft LPS 2) which, when gazetted, would replace TPS 1. The advertising of draft LPS 2 ceased on 23 February 2011. Draft LPS 2 proposes that the site and the lots within the Richards Road cell be rezoned from 'General Farming' to 'Residential R2.5'.
Revision of TPS 1 commenced in 1999 and draft LPS 2 was first advertised in 2006. At that time, the Richards Road cell was proposed to be rezoned to 'Rural Residential'. During that advertising period, the owners of most of the lots in the cell made a submission in support of the cell being 'Residential R2.5'. The Shire agreed and draft LPS 2 was amended to include the Richards Road cell as R2.5, along with other amendments not related to the site.
The modifications to draft LPS 2 in 2006 triggered the Environmental Protection Authority (EPA) to require an environmental assessment of draft LPS 2. This assessment related specifically to a proposal to rezone to 'Development' zone an area of approximately 200 hectares south of the Buller River and west of North West Coastal Highway. This area, although nearby, does not include the site. The advertising of the environmental assessment of draft LPS 2 was also completed on 23 February 2011.
Clause 5.2.4 of draft LPS 2 requires that:
Prior to the subdivision and development of land on the western and eastern side of Richards road zone Residential R2.5, a detailed structure plan shall be prepared pursuant to the provisions of clause 5.22 Structure Plan Areas.
Clause 5.22.2.1 of draft LPS 2 provides that:
The purpose of Structure Planning Areas are to:
(a)identify areas requiring comprehensive planning; and
(b)coordinate subdivision and development in areas requiring comprehensive planning.
Clause 5.22.4.1 requires that:
The local government is not to:
(a)consider recommending subdivision; or
(b)approve development of land within a Structure Planning Area unless there is a structure plan for the area or for the relevant part of that area that adequately defines the comprehensive planning detail required to guide orderly subdivision and development for urban land use.
Clause 5.22.4.2 of draft LPS 2, however, provides that:
Notwithstanding clause 5.22.4.1 a local government may recommend subdivision or approve the development of land within a Structure Planning Area prior to a structure plan coming into effect in relation to that land, if the local government is satisfied that this will not prejudice the specific purposes and requirements for the Structure Planning Area.
Clause 5.22.5 of draft LPS 2 provides that:
...
A proposed structure plan may be required by the:
(a)Local Government; or
(b)Western Australian Planning Commission[.]
A proposed structure plan may be required and prepared for all, or part of, any zone or development area.
Clause 5.22.6.1 of draft LPS 2 lists matters that are required to be detailed in a structure plan, including, at subclause (e):
...
(iv)street block layouts;
(v)the street network including street types;
(vi)transportation corridors, public transport network, and cycle and pedestrian networks;
(vii)land uses including residential densities and estimates of population;
(viii)schools and community facilities;
(ix)public parklands; and
(x)urban water management areas[.]
The parties referred to other planning documents and relevant provisions of these are addressed in the discussion below. These documents included:
•Draft Northern Geraldton District Structure Plan - 2006
•Shire of Chapman Valley Local Planning Strategy - 2007
•Greater Geraldton Structure Plan Update - draft Report November 2010
•Shire of Chapman Valley Moresby Range Management Plan - 2010
•Statement of Planning Policy No 3 - Urban Growth and Settlement
•Liveable Neighbourhoods - January 2009 Update 2
•Western Australian Planning Commission Development Control Policy 1.1 - Subdivision of Land - General Principles (DC 1.1)
•Western Australian Planning Commission Development Control Policy 2.2 - Residential Subdivision (DC 2.2)
•Western Australian Planning Commission Development Control Policy 2.3 - Public Open Space in Residential Areas (DC 2.3)
•Western Australian Planning Commission Development Control Policy 2.4 - School Sites (DC 2.4)
•Western Australian Planning Commission Development Control Policy 2.5 - Special Residential Zones (DC 2.5)
Also relevant to the matter is s 138 of the PD Act, which relevantly states:
...
(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 an 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 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter; or
(b)the approval is consistent with a region planning scheme that deals with substantially the same matter; or
(c)in the opinion of the Commission -
(i)the conflict is of a minor nature; or
(ii)the approval is consistent with the general intent of the local planning scheme;
or
(d)the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict; or
(e)in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or
(f)the approval is given in circumstances set out in the regulations.
...
The Residential Design Codes of Western Australia (2010) (Codes) at Table 1, lists for land with the residential density coding of R2.5 a minimum site area per dwelling of 4,000 square metres and minimum frontage of 40 metres.

Proposed subdivision

Proposed is the subdivision of the site into 27 lots of 4,000 square metres. A new subdivision road would be built running west from Richards Road parallel to and about 79 metres from the southern boundary. This road would turn south about 110 metres from the western boundary to finish at the common boundary of the site with Lot 1. The new lots would have frontage to and access from Wokarena Road, Richards Road and the internal access road. Lots would back onto, but not have access to, North West Coastal Highway.
The proposed lots fronting the northern side of the internal road and Wokarena Road would generally have frontages of about 46 metres and a depth of about 88 metres. The lots south of the new road which back onto the boundary with Lot 1 would have a frontage of about 51 metres and a depth of about 79 metres. The existing house would be retained on a 4,000 square metre lot at the northeast corner of the site.

The issues

The issues identified by the parties can be stated as:
1)Whether approval of the proposed subdivision having regard to the current zoning of general farming under TPS 1 has the potential to result in land use conflicts;
2)Whether draft LPS 2 can be considered as a 'seriously entertained planning proposal' for the purposes of assessing and determining the subdivision, and if so, what weight ought to be applied to its content;
3)Whether draft LPS 2 would require the preparation and endorsement of a structure plan prior to the approval of the proposed subdivision;
4)Whether approval of the proposed subdivision without an endorsed structure plan would be consistent with orderly and proper planning.

Issue 1 - whether approval of the proposed subdivision having regard to the current zoning of 'General Farming' under TPS 1, has the potential to result in land use conflicts

If the proposed subdivision were allowed, the Richards Road cell would consist of 27 lots of 4,000 square metres on the site, nine lots of 12 hectares to the north and east of the site, and to the south of the site a 20.9 hectare lot. All of these lots would be zoned 'General Farming' under TPS 1.
The Tribunal has noted that it was essentially common ground between the parties that if uses allowed in the general farming zone of TPS 1 were approved on other lots in the Richards Road cell, these uses could give rise to land use conflict with the intended residential use of the proposed lots. The parties differed, however, on the significance of this in the consideration of the proposed subdivision.
Mr Jerom Hurley, a town planning consultant, was called as a witness by the applicant. He said that 'P' uses incompatible with residential subdivision had not been established in the Richards Road cell in the 29 years since the gazettal of TPS 1. He was of the opinion that uses incompatible with residential use would either not be established in the Richards Road cell or that the likelihood was so remote that, from a planning point of view, the possibility of land use conflict occurring was negligible.
Mr Hurley produced a table (Exhibit 12) which he says sets out a series of questions he asked and the answers that were given by the owners of Lot 1, Lot 3, Lot 8, Lot 9 and Lot 10 neighbouring the site. These neighbours, he said, would know about the proposed zoning of the Richards Road cell under draft LPS 2 and they were reminded of the land uses that can be considered under the general farming zone of TPS 1. Mr Hurley said the answers given by these owners in relation to their future intentions show that there is no reasonable prospect of any surrounding owners using their land in a way that will conflict with the residential use of the new lots proposed for the site.
The applicant also expressed the opinion that a landowner in the Richards Road cell was unlikely to favour a use such as rural industry that would prejudice that owner's potential return from the likely future residential zoning of the cell.
Mr Hurley pointed out that, any application for a 'P' use in the general farming zone under TPS 1 must comply with relevant development standards, regulations and policies. He referred to the Shire's 'Rural Industry Policy' that prescribes 40 metre setbacks from all boundaries and 200 metre separation from residences. Mr Hurley attached to his witness statement a plan with these setbacks drawn relative to existing lot boundaries and houses. The buffer distances were not shown for a house on a lot on which a Rural Industry use might be proposed. Mr Hurley interpreted the resultant sketch as restricting the area available for Rural Industry on the lots of the owners interviewed.

Mr Hurley produced an email he received from Mr Simon Lancaster, the town planner employed by the Shire. Mr Hurley drew attention to Mr Lancaster's opinion that it would be highly likely that an application for Rural Industry on lots in the Richards Road cell 'would have to be refused'. This, it was said, was because of the need to have regard to future rural residential use in the Richards Road cell referred to in the Geraldton Region Plan 1999 and the Greater Geraldton Structure Plan 2010, and to the proposed residential use in draft LPS 2. Mr Lancaster also made reference to the setback requirements for rural industry and the absence of locally grown primary products due to the very poor quality of the soil.
Mr Hurley further argued that it would be difficult to locate a business operation in the Richards Road cell because the need to comply with the Environmental Protection Act 1986 (WA) (EP Act), the Environmental Protection Regulations 1987 (WA) and the Environmental Protection (Noise) Regulations 1997 (WA) which control emissions such as noise, dust, odour, waste water, gas and vibration from premises.
Mr Hurley said that in any event, in his opinion, there would be little opportunity for any adjoining land owner to prepare and make an application for an incompatible land use and, if approved, commence that use before draft LPS 2 was gazetted and the rezoning to Residential R2.5 finalised. Before rezoning occurred, land uses to be allowed on the proposed lots could be controlled by the use of restrictive covenants notified to owners under s 70A of the Transfer of Land Act 1893 (WA).
Mr Jason Gordon, a town planner of the Department of Planning was called as a witness by the respondent. He was of the opinion that there was a possibility of 'P' uses allowed in the general farming zone of TPS 1 being established in the Richards Road cell. He considered the Richards Road cell would be attractive for a business such as a rural pursuit or a rural industry because of the ready access to Geraldton via nearby major roads. Mr Gordon said that because of the uncertainty surrounding the timeframes for endorsement of draft LPS 2 by the Minister for Planning and the EPA, the potential for land use conflict was not negligible and must be given serious consideration.
Mr Gordon considered that the answers given by the neighbouring owners to the questions asked by Mr Hurley, while not currently objecting to the proposed subdivision, could not be interpreted as a commitment not to undertake any particular activity in the future. The ownership of any of the Richards Road cell lots could also change between now and when draft LPS 2 was gazetted.
Mr Gordon interpreted the sketch showing setback requirements and buffers from houses differently from Mr Hurley. Mr Gordon said that there was ample room left on the neighbours' lots for industryrural uses incompatible with residential use on neighbouring lots and once established, the newly created lots would be in the buffer zone of these incompatible uses.
Mr Gordon acknowledged that any development of neighbouring lots would have to comply with the EP Act and related regulations, but in his experience, levels of noise, odour and dust permitted by the regulations generally exceeded the tolerance levels of land owners in residential areas.
Mr Gordon said restrictive covenants may be suitable for preventing potentially conflicting land uses on the new residential lots, but it would not prevent an incompatible land use being established on the lots neighbouring the site within the Richards Road cell. Mr Gordon expressed the view that, rather than restrictive covenants, having appropriate town planning scheme provisions in place to prevent land use conflict was the appropriate course. Mr Gordon said that given the potentially serious consequences, the likelihood of land use conflicts should be considered as a 'real' issue.
The Tribunal has noted the applicant has argued, citing Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 535 (Falc), that zoning 'should not to be elevated to the position of absolute arbiter of subdivision approvals'. It was also found in Falc, however, at 535, that the implications of zoning are a most important factor and the planning consequences may also involve the 'orderly development of land, the maintenance of the character of the area, the aesthetics of the proposed development, environmental risks of any kind, the size of the proposed lots in relation to others in the locality and the control over the use of the land'.
The Tribunal does not agree with Mr Lancaster's comment that any application for general farming use on neighbouring lots 'would have to be refused'. Under TPS 1 a 'P' use would be assessed against the existing development standards. The potential future zoning of the Richards Road cell would be a consideration, but not determinative of the matter.
The Tribunal would also add that it considers that it would not be consistent with orderly planning to use restrictive covenants to control types of land use on the proposed lots as suggested by the applicant. A restrictive covenant might be used to control items such as access to a regional road, building envelopes or obligations to a local government. A subdivider might use restrictive covenants in estate planning to control development standards such as building height and materials. The Tribunal does not consider it to be orderly and proper planning to use restrictive covenants on title to prohibit the land uses that the town planning scheme expressly states are permitted in the zone. The Tribunal considers sound the planning practice that scheme provisions are used as the means to control land use in a zone rather than using restrictive covenants as a means of changing land use controls to the extent that a site is effectively rezoned without a planning scheme being amended.
Falc also held that it is required that the Tribunal 'exercise its own discretion in relation to [an application] in the light of the evidence in the particular case according to sound town planning considerations'.
The applicant has argued that there are sound town planning considerations in support of subdivision in this instance. In addition to the submission that it would be unlikely subdivision would result in land use conflict in the Richards Road cell, the applicant has also referred to the planned residential zoning of the Richards Road cell under draft LPS 2, the Shire's support for the subdivision and its submission that subdivision of the site would have no impact on the subdivision potential of neighbouring lots under the future residential zoning.
The Tribunal's position is that it would not usually approve 4,000 square metre lots in a general farming zone under TPS 1. This is because, under the general farming zone certain 'P' uses require setbacks that would deny for the new lots any useful purpose consistent with the objectives of the zone under TPS 1. This is accentuated by a 'Dwelling House' being a 'P' use in the zone which reinforces the need for the setback requirements. The effect of residential development of residential sized lots would be to restrict the potential of neighbouring lots to be considered for the uses allowed in the general farming zone, even though the likelihood of that potential being pursued is considered slight. This would be in conflict with the objectives of the zoning under TPS 1.
The Tribunal has formed the view that the likelihood of a 'P' use incompatible with residential subdivision being proposed for a lot neighbouring the site is minimal, as submitted by the applicant. This is because of the history of land use in the Richards Road cell and the well established and widely known planned future residential use of lots in the cell. This alone, however, is not sufficient to set aside the usual approach of maintaining lot sizes appropriate to the general farming zone under TPS 1 until such time as the cell is rezoned. The Tribunal considers more is required. It is necessary to consider the likely timing of any residential zoning occurring and the manner in which subdivision might occur consistent with the proposed residential zoning. This leads to the consideration of the following issues.

Issue 2 - whether draft LPS 2 can be considered as a 'seriously entertained planning proposal' for the purposes of assessing and determining the subdivision, and if so, what weight ought to be applied to its content

Draft LPS 2, as advertised, includes the Richards Road cell in the Residential Zone with a density coding of R2.5. Mr Hurley and Mr Gordon, in their joint witness statement, agreed that 'the reasons LPS 2 [has] been delayed have nothing to do with the suitability of this area for subdivision and that once issues causing the uncertainty for LPS 2 are resolved, the Richards Road cell will be zoned Residential R2.5'.
The advertising for draft LPS 2 ceased on 23 February 2011 but the parties did not have any information on the number or content of any submissions lodged. The experts speculated it may be 12 months, but it might be anywhere up to two to four years, before draft LPS 2 is finalised.
It was the respondent's submission that, particularly because of the need to address the environmental issues, the timing of the finalisation of draft LPS 2 was uncertain. The respondent further said, however, that even if not imminent, provisions of draft LPS 2 could be considered as relevant because they set out the matters to be considered and the processes required before subdivision could be considered, including the requirement for structure planning in the Richards Road cell.
The applicant highlighted the inherent tension in the respondent relying on both the content of draft LPS 2 in respect of the need for a structure plan to be prepared before subdivision and the uncertainty of the finalisation of draft LPS 2 in respect of the potential for land use conflict if subdivision were allowed. The applicant's submission was that if draft LPS 2 is to be given weight, cl 5.22.4.2 provides that in certain circumstances, such as support from the local government, the need for a structure plan can be waived. In the applicant's submission, this was such a circumstance, because the Shire had recommended conditional approval of the subdivision.
The Tribunal, in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls), at [59], identified four principles which should be utilised to determine the weight which should appropriately be given to a draft planning instrument. These were:
(1)The degree to which the draft addresses the specific application.
(2)The degree to which the draft is based on sound town planning principles.
(3)The degree to which its ultimate approval could be regarded as 'certain'.
(4)The degree to which its ultimate approval could be regarded as 'imminent'.
In respect of these criteria, draft LPS 2 addresses the proposed subdivision directly, referring to the Richards Road cell at cl 5.2.4, which provides that prior to subdivision a detailed structure plan shall be prepared pursuant to the provisions of cl 5.22. There was no dispute between the parties that draft LPS 2 was based on sound town planning principles in respect of the Richards Road cell. As to item 3 of the criteria in Nicholls, both parties agreed that residential use of the Richards Road cell was as certain as could be predicted at this stage in the town planning scheme approval process given that the background to the advertising of draft LPS 2.
The difference between the parties was in respect of item four in Nicholls, that is, the degree to which draft LPS 2 could be regarded as imminent. Mr Hurley was hopeful that draft LPS 2 would be finalised within 12 months. Mr Gordon was inclined to the view that it might be up to four years before finalisation because of consideration of land use controls south of Oakajee.
The Tribunal has formed the view that draft LPS 2 as it relates to the site and the Richards Road cell might be considered as a seriously entertained planning proposal. This is because after draft LPS 2 was first advertised, in 2006, the currently proposed residential zoning was adopted and has been endorsed by the Commission and the Shire for the purposes of the recently completed advertising. Consistent with this, the Greater Geraldton Structure Plan Update - draft Report November 2010, which was advertised in December 2010, identified the site as 'Future Urban'.
The review of TPS 1 apparently commenced some 12 years ago and so the Tribunal is cautious before considering draft LPS 2 as a whole as certain and imminent. Draft LPS 2, however, on the evidence before the Tribunal, can be viewed as far as is possible in the circumstances as settled in respect of the zoning change to the Richards Road cell.
While it cannot be said to be certain that the finalisation of draft LPS 2 will occur in the next few months, the Tribunal considers draft LPS 2 a relevant consideration. Without draft LPS 2 the structure planning documents are not sufficiently refined to provide guidance to support a subdivision that would be inconsistent with the current zoning and which would have a direct bearing on setting local land use and character ahead of town planning scheme changes. Draft LPS 2 sets out provisions to assist in assessing whether the proposed subdivision would be consistent with the planning goals for residential subdivision in the Richards Road cell. That is, the Tribunal is of the view that draft LPS 2 is sufficiently 'seriously entertained' to provide a basis for the consideration of whether the proposed subdivision might be allowed.
As to the weight to be given to the content of draft LPS 2, the parties have particularly disagreed in respect of the relevance of the provisions of draft LPS 2 that refer to the requirement for a structure plan to be prepared before subdivision can be considered. This leads to the next issue.

Issue 3 - whether draft LPS 2 would require the preparation and endorsement of a structure plan prior to the approval of the proposed subdivision

Draft LPS 2 at cl 5.2.4 specifically provides that prior to the subdivision of the Richards Road cell, a detailed structure plan shall be prepared pursuant to the provisions of cl 5.22 'structure plan areas'. Clause 5.22.6.1 of draft LPS 2 at subclause (e) sets out items a structure plan should address and these include street block layouts, street networks, networks for public transport, cyclists and pedestrians, land uses, school and community facilities, and public open space. As referred to above, cl 5.22.4.2 of draft LPS 2 provides that the local government may recommend a subdivision without a structure plan if it is satisfied that the subdivision would not prejudice the specific purpose and requirements for the selected structure planning area.
The Tribunal notes that in draft LPS 2, the Richards Road cell is the only locality specifically mentioned as requiring the preparation of a structure plan.
It was not clear to the Tribunal on the submissions why draft LPS 2 would explicitly require a structure plan for the Richards Road cell, but then provide a more general discretion to exempt all or part of the Richards Road cell from having a structure plan prepared for it. The representatives of both parties initially made comment that cl 5.22.4.2 provided discretion to set aside the requirement for a structure plan in the Richards Road cell. Mr Spragg, for the respondent, however, in closing submissions, retreated from that position stating that the Richards Road cell was separate from the declaration of a structure planning area and so the discretion that there not be a structure plan before subdivision was in question.
Clause 5.2.4 of draft LPS 2 is curious because it makes reference to the need for a structure plan in the Richards Road cell as a subclause under cl 5.2 which otherwise has three other subclauses concerned only with the Codes. The Tribunal has formed the view, however, that draft LPS 2, if gazetted, would require the preparation of a structure plan before subdivision could be supported in the Richards Road cell.
Clause 5.22 of draft LPS 2, which is headed 'Structure Plan Areas', reveals at cl 5.22.2.1 that the purpose of a structure plan area is to coordinate subdivision and development. At cl 5.22.4, the local government is not to consider recommending subdivision or approving development unless there is a structure plan. Clause 5.22.4.2 of LPS 2 provides that the local government may recommend subdivision prior to a structure plan coming into effect. The Tribunal notes that at cl 5.22.5, a structure plan may be required by either the local government or the Commission. It follows that if draft LPS 2 were gazetted, it would be open to the Commission, or the Tribunal on review, to accept the Shire recommendation and allow subdivision, or to reject the Shire's recommendation and the reasons for it and to require a structure plan.
Draft LPS 2 has been under consideration for many years. The present form of draft LPS 2 was adopted specifically to deal with, among other matters, subdivision of the Richards Road cell into residential lots. As stated by the applicant, the placement of the requirement for the structure plan for the Richards Road cell at cl 5.2 of draft LPS 2 is curious in the overall structure of draft LPS 2. The Tribunal is of the view, however, that it makes no planning sense for the local government to have decided that the Richards Road cell is of such significance that a special clause was required in draft LPS 2 with particular reference to subdivision. Draft LPS 2 otherwise leaves open to the Shire the discretion to select structure plan areas.
The Tribunal is only able to make a comment on this issue as draft LPS 2 is just that, a draft. The Tribunal notes, however, that if the usual principles of statutory interpretation are followed, then a particular requirement that a structure plan shall be required for the Richards Road cell is to be read as a proviso to the general clause that subdivision might be allowed in a selected structure plan area prior to a structure plan coming into effect. A further comment that might be made is that the Tribunal, if it is wrong in its interpretation of draft LPS 2, is concerned how it might give consideration to identifying a lot that need not be included within a declared structure plan area without as at least preliminary work having commenced on the form of the structure plan.
The Tribunal is of the view that, before subdivision in the Richards Road cell would be considered, draft LPS 2 would require a structure plan, if not in place, then at least to be significantly advanced.
A relevant consideration is whether, as a consequence of the advertising of draft LPS 2, changes might be made to the provisions relevant to the Richards Road cell. This is unknown because of the absence of knowledge about the submissions made.
Because LPS 2 is only a draft, the relevant question for the Tribunal in this matter is whether it would be appropriate to allow subdivision of the site without there first being in place a structure plan prepared consistent with the requirements of cl 5.22.6.1(e) of draft LPS 2. This is addressed in the next issue.

Issue 4 - Whether approval of the proposed subdivision without an endorsed structure plan would be consistent with orderly and proper planning

There is no provision in TPS 1 requiring a structure plan to be prepared prior to the subdivision of the Richards Road precinct under the current general farming zoning. There is no apparent mechanism under TPS 1 for endorsement of a structure plan of the detail discussed by the parties for the Richards Road cell. To be assessed, however, is a proposed subdivision based on the planned residential R2.5 zoning under draft LPS 2.

The difference between the parties was whether or not subdivision of the site might be allowed without there first being in place a structure plan for the Richards Road cell. Mr Gordon was of the view that a structure plan would be necessary prior to consideration of any subdivision of the site to ensure the orderly and proper planning of the Richards Road cell.
Mr Gordon did not agree with Mr Hurley that the site was substantially physically disconnected from the remainder of the Richards Road cell because it was bounded on three sides by roads. He said the road reserves were not a physical or visual obstruction and the roads were a part of the overall movement network that served the site and the remainder of the Richards Road cell. Mr Gordon considered that the road linkage to adjoining Lot 1 to the south shown on the proposed subdivision plan did not provide that adjoining land owner with flexibility in how Lot 1 might be subdivided.
Mr Gordon and Mr Hurley agreed that the remnant vegetation located on Lot 1 was the likely location for a large proportion of public open space to be provided within the Richards Road cell, and that the payment of cashinlieu of public open space was a common way of dealing with public open space requirements. Mr Gordon's concern, however, was that the Richards Road cell has an area of about 140 hectares and the area of remnant vegetation was about 10 hectares. He considered it appropriate that there be a structure plan to determine the need for and location of an additional 4 hectares of open space. He made the comment that any additional open space might be required adjacent to the remnant vegetation, affecting the site, but this would not be known without a structure plan.
Mr Gordon noted that the proposed lots would have reticulated water, electricity and frontage to constructed roads. He considered, however, that a structure plan was required because, in summary:
•the proposed subdivision would prejudice the layout of the future road network in the Richards Road cell;
•the proposed subdivision would prejudice the location, if required, of public open space, school sites, community facilities, public transport and any commercial site within the Richards Road cell;
•of the need to identify the route of any dual use path required to link the Richards Road cell with the various facilities within and external to the cell; and
•a structure plan would include the preparation of design guidelines which would ensure houses were located and designed to take account of the prominence of the site relative to the Moresby Range and North West Coastal Highway.
Mr Hurley did not object to a structure plan being prepared for the Richards Road cell, but did not believe that a structure plan was required prior to the proposed subdivision of the site being approved. This was because the site was bounded by roads on three sides and planning for the site could occur without affecting subdivision potential of other lots. He referred to the site's frontage of about 270 metres to Richards Road and how the selected junction of the subdivision road with Richards Road need not prevent suitable subdivision of lots to the east of Richards Road, which had similar frontages to the road.
Mr Hurley referred to the existing lots in the Richards Road cell having an eastwest orientation and commented that it would be likely there will be more roads oriented on an eastwest axis. He said (T: 43, 06.04.11):
... [R]ather than have a scenario where roads cross multiple lot boundaries in different ownership, thereby tying subdivision of one lot to the subdivision of another lot, landowners, in their interests of being able to independently develop their land, would seek to have an independent access point onto the existing road network so that subdivision of their land is not tied, or the time frame for subdivision is not tied, to what happens on the property next door.
Mr Hurley went on to talk about a north south road parallel to and east of Richards Road and potential change to the cul de sac at the southern end of Richards Road. He said access to the cul de sac through Lot 1 was problematical because of the remnant vegetation, but in any event the proposed subdivision provided the owner of Lot 1 with the flexibility to subdivide his land.
It was the submission of the applicant that conditions of subdivision approval requiring appropriate cashinlieu contributions for public open space, dual use path construction and school site acquisition would satisfy requirements in that regard.
Mr Hurley said that the preparation of design guidelines could also be a condition of subdivision and that it was appropriate that this lot have its own set of design guidelines rather than be subject to general guidelines for the whole of the Richards Road cell. This was because each lot in the cell had different characteristics and, particularly in respect of the site, these could best be addressed by guidelines developed specifically for the site.
Mr Hurley referred to the Shire's recommendation for approval of the subdivision as indicating that a structure plan was not required, relating this to the discretion to vary the requirement for a structure plan at cl 5.22.4.2 of draft LPS 2.
The applicant said that, in any event, it was not necessary to rely on the future residential zoning and cl 5.22.4.2 of draft LPS 2. The applicant said that the proposed subdivision can be considered under the provisions of s 138(3) of the PD Act, which provide circumstances in which an approval to subdivide may be granted in conflict with the provisions of the local planning scheme.
In support of this submission, the applicant said TPS 1 was gazetted in 1982 and has not been consolidated in the last five years (s 138(3)(a) of the PD Act). The Tribunal notes, however, there is not a State planning policy under which the proposed subdivision could be considered in the current zone under TPS 1, which is also required by s 138(3)(a) of the PD Act. The applicant also emphasised that the Shire had recommended approval of the subdivision, which is listed at s 138(3)(e) of the PD Act as a consideration for granting subdivision approval in conflict with the provisions of a local planning scheme.
The Tribunal notes that the Shire's 'non objection', as required under s 138(3)(e) of the PD Act, was explained in its letter to the Commission on 17 December 2010. The Shire's support was based on the proposed residential zoning under draft LPS 2. The letter also referred to reasons why the Shire considered it appropriate to exercise the discretion it considered available at cl 5.22.4.2 of draft LPS 2 and not require a structure plan be prepared for the subdivision of the site.
The Tribunal has formed the view that if subdivision of the site is to be considered, it is necessary to rely on the existence of draft LPS 2, as this is the document that provides a basis for consideration of a subdivision in conflict with TPS 1. It appears to the Tribunal that the Shire is of the same view. The Tribunal has also formed the view, however, that, if draft LPS 2 is to be relied on, then it is not just the proposed zoning that is relevant. Regard must also be had to the provisions of draft LPS 2 that are relevant to the objectives of the proposed residential zoning of the Richards Road cell being achieved. As discussed under issue 3 above, the Tribunal has formed the opinion that if regard is to be had to the provisions of draft LPS 2, the subdivision into residential lots in the Richards Road cell first requires the preparation of a structure plan.
In light of the conclusion reached under issue 3 and having regard to the evidence of the respective planning witnesses, the Tribunal has formed the view that subdivision of the site cannot be supported without there being available a 'structure plan' against which to assess the proposed subdivision. The term 'structure plan' has been used because there is not yet any process for the formal adoption of a structure plan.
As stated by Mr Hurley in his comments on the subdivision of neighbouring lots, there are 'a number' of subdivision design options for the site and how the Richards Road cell might be subdivided. Mr Hurley asserted that the proposed subdivision of the site would not compromise an overall plan for the cell. The Tribunal is concerned, however, that there is no illustration of how the proposed subdivision would relate to the subdivision of other lots in the Richards Road cell and whether simply making a cash contribution would be sufficient to ensure that the matters identified by Mr Gordon can be addressed so that the creation of a residential Richards Road cell is not compromised. It might be that the site is not eventually required for the infrastructure items referred to, but this is not known. Approval of the subdivision as proposed would, however, remove the site from any consideration of where items such as open space and dual use paths might be appropriately located in the Richards Road cell.
The Tribunal notes that the owner of Lot 1 adjoining to the south did not object to the proposed road connection at his northern boundary. Mr Hurley's evidence was, however, that the sketch of a possible subdivision of Lot 1 shown to the Tribunal was not considered by the owner of Lot 1. The Tribunal was not satisfied that there has been sufficiently demonstrated that the road layout in the proposed subdivision would not have an unacceptable influence on the road layout for other lots in the Richards Road cell. Mr Hurley's evidence about other lots potentially being able to subdivide without affecting adjoining lots is a concern when the interests of orderly and proper planning would be better served by there being identified a road network that achieves an acceptable subdivision layout and provision of residential amenities for the Richards Road cell.
It would be possible for each lot in the Richards Road cell to have an individual subdivision guide plan as asserted by the applicant. The Tribunal is of the view, however, that the site is similar to all other lots in the cell in respect of topography and vegetation, except for Lot 1. The Richard Road cell is at the foot of the Moresby Range. Design guidelines would have to have regard to the requirements at Appendix 5A of TPS 1 and the Moresby Range Management Plan which are concerned with this location. It was not clear to the Tribunal whether guidelines for the Richards Road cell consistent with these documents would impact on the proposed subdivision and the subdivision of neighbouring lots to the extent that the overall subdivision pattern would be guided in some way to achieve the planning objectives.
It is sound planning practice to require that residential localities be developed in a coordinated way to provide an acceptable level of amenity, services and access for vehicles and pedestrians.
The Tribunal has concluded that to allow the proposed subdivision of the site without a form of structure plan available to illustrate the relationship between the subdivision of the site and the future residential development of the Richards Road cell would not be consistent with orderly and proper planning.

Conclusion

The Tribunal has formed the view that, the likelihood of a 'P' use incompatible with residential subdivision being proposed for a lot neighbouring the site, is minimal. The Tribunal would not, however, support subdivision of the site into 4,000 square metre lots if the provisions of TPS 1 were the only consideration because, however remote conflicting land uses might be, the proposed subdivision would be in conflict with the objectives for the general farming zone.
For subdivision to be considered more is required. In this matter, a relevant consideration is draft LPS 2. Draft LPS 2 includes the Richards Road cell, which includes the site, in a residential R2.5 zone. The Tribunal has formed the view that draft LPS 2 is sufficiently 'seriously entertained' for the future residential use of the Richards Road cell to be settled and so provides a basis for the consideration of whether the proposed subdivision might be allowed.
The Tribunal has formed the view that draft LPS 2, if gazetted, would require the preparation of a structure plan before subdivision could be supported in the Richards Road cell. The question for the Tribunal was whether because LPS 2 is a draft, it would be appropriate to allow subdivision of the site without there first being in place a structure plan prepared consistent with the requirements of draft LPS 2.
The Tribunal has concluded that to allow the proposed subdivision of the site without a form of structure plan available to illustrate the relationship between the proposed subdivision of the site and the future residential development of the Richards Road cell, would not be consistent with orderly and proper planning.
The Tribunal has decided to dismiss the application for review and to affirm the refusal of the respondent.

Orders

1.The application for review is dismissed.
2.The decision of the respondent to refuse the application for subdivision of Lot 2 Wokarena Road, Buller, is affirmed.

I certify that this and the preceding [100] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER