BETWEEN : AVON CAPITAL ESTATES (AUSTRALIA) LIMITED

Town planning - Structure plan - Alteration of structure plan to allow single house on private land reserved for public purposes - Reserved land traversed by two trunk water mains owned by water authority - Water authority incorrectly asserted that it owned reserved land - Applicant obtained a 50% credit towards provision of public open space for subdivision of surrounding land by landscaping reserved land - Subdivision contains 11.5% public open space without reserved land - Reservation and public open space arrangements resulted from water authority's incorrect assertion of ownership - Whether alteration will not prejudice progressive development of area - Whether alteration will give rise to risk to or preclude access to and maintenance of mains - Whether alteration will give rise to risk to occupants or structure of house because of mains - Whether alteration acceptable having regard to orderly and proper planning and conservation of amenities of locality - Whether SAT should require notification of affected owners - Whether approval of Western Australian Planning Commission required - Whether application can be approved before Commission's approval has been obtained

City of Canning Town Planning Scheme No 40, cl 2.1, cl 2.1.7, cl 2.1.11, cl 2.3,

cl 2.3.5.1, cl 2.7.8, cl 5.3.3.4, cl 5.3.3.5, Pt V

Planning and Development Act 2005 (WA), Part 14, s 242,

State Administrative Tribunal Act 2004 (WA), s 29(1), s 37(3)

Deemed decision of respondent to refuse to permit alteration to structure plan to allow the erection of a single house on Pt Lot 317 Vol 1741 Fol 920 set aside and decision substituted to permit alteration of structure plan subject to the approval of the Western Australian Planning Commission

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98

Water Corporation v City of Canning & Anor [2005] WASC 109

1 Avon Capital Estates (Australia) Limited sought review of the City of Canning's deemed refusal of an application to vary a structure plan for a residential estate to allow the erection of a single house on a 4120 square metre site. The site was traversed by two water supply trunk pressure mains owned by the water authority. On the basis of the water authority's incorrect assertion that it owned the site, the site was reserved for public purposes under the local planning scheme, landscaped by the subdivider in return for a 50% public open space credit for the estate and identified as landscaped public open space in the structure plan. The subdivider subsequently discovered that it owned the site and other land traversed by the mains.

2 The Tribunal determined that the proposed alteration to the structure plan should be permitted, subject to the approval of the Western Australian Planning Commission. The engineering evidence demonstrated that the house could be constructed in a location and manner that would not give rise to any risk to or preclude access to or maintenance of the mains and that there would be no risk to the house or its occupants by reason of the mains. As the land is in private ownership, the residents of the estate have no right to traverse it. The estate contains more public open space than the normal requirement, even excluding the land traversed by the mains. Given the very low density of residential development proposed, the visual amenity and green buffer value of the site to residents of the estate will be substantially retained. It is consistent with orderly and proper planning for infill development of urban land to take place where the land is reasonably capable of development and the development is generally consistent with conservation of amenities.

3 These proceedings involve an application brought by Avon Capital Estates (Australia) Limited (Avon), pursuant to cl 2.3.5.1 and cl 2.7.8 of the City of Canning Town Planning Scheme No 40 (TPS 40 or Scheme), for review of the deemed decision of the City of Canning (City or Council) not to permit an alteration to an approved structure plan (structure plan) under cl 5.3.3.5 of the Scheme.

4 The structure plan was adopted by the City and approved by the Western Australian Planning Commission (Commission) in 1991, in accordance with the then applicable town planning scheme, as the basis

for determining the City's attitude to the subdivision and development of the land known as the Ranford Estate, which is a diamond-shaped area bounded generally by Ranford Road, Nicholson Road, Clifton Road and Wilfred Road, Canning Vale. The Ranford Estate has been progressively subdivided by Avon, in accordance with the structure plan and a series of subdivision approvals granted by the Commission, over the past 15 years. The Ranford Estate is now substantially complete and comprises approximately 1400 residential lots, a primary school, a neighbourhood centre, public open space and roads.

5 The Ranford Estate is essentially bisected by a 30 metre wide strip of land which runs north to south from a point close to the top of the diamond to a point close to the bottom. The western 10 metres of this strip comprises public open space which was landscaped and dedicated to public ownership by Avon in accordance with various subdivision approvals. This 10 metre wide section is reserved for recreation under TPS 40 and is traversed along its length by a gas main owned by Alinta Gas.

6 With the exception of five diagonal strips, which are owned by the Water Corporation, the eastern 20 metre wide section of the 30 metre wide strip bisecting the Ranford Estate is owned by Avon. This 20 metre wide section is reserved for public purposes under TPS 40 and is referred to in these reasons as the reserved land. The reserved land is traversed by two water supply trunk pressure mains, with diameters of 1370 millimetres and 1200 millimetres, which are located centrally along the length of the reserved land at a depth of between 0.5 metre and 2.0 metres below ground. The mains, which are known as the Serpentine Trunk Mains, were installed by a statutory predecessor of the Water Corporation in approximately 1959 and 1965. The mains are described by the Water Corporation as being of strategic importance in that they supply water to the Perth metropolitan region as a whole.

7 Clause 5.3.3.4 of TPS 40 states that any subdivision or other development of land within an approved structure plan, subject to cl 5.3.3.5, shall be in accordance with the structure plan. The structure plan for the Ranford Estate describes the eastern 20 metre wide section of the strip of land which bisects the estate as "Landscaped POS Serpentine Trunk Main". It is common ground that POS stands for public open space. Clause 5.3.3.5 of TPS 40 is in the following terms:

"Any departure from or alteration to an approved Structure Plan may, subject to the approval of the Commission, be permitted

by the Council if the Council considers that the proposed departure or alteration will not prejudice progressive development of the area, the subject of the Structure Plan. In considering any departure from or alteration to an approved Structure Plan, the Council may notify any owner of land it considers is affected by the proposed departure from or alteration to the Plan and may invite each owner to make a submission to the Council regarding the proposal."

8 On 15 September 2005, Avon made application to the City for alteration to the structure plan to allow the erection of a single house on Part Lot 317 Volume 1741 Folio 920 (site), which is the southernmost portion of the reserved land. The site has a frontage to Oakhill Road of approximately 150 metres, a width of approximately 20 metres, a length of approximately 200 metres and an area of 4120 square metres. The site is owned by Avon. The Serpentine Trunk Mains are located within the central strip of the site which has a width of between 6.02 metres and 6.13 metres. The western main is set back between 8.22 metres and 8.29 metres from the western boundary of the site and the eastern main set back between 5.77 and 5.85 metres from the eastern boundary of the site. Attachment A to these reasons is a plan of the Ranford Estate which shows the site as "Subject Land" and the proposed dwelling location on the site.

9 On 16 January 2006, the City requested the Commission's approval to the proposed alteration to the structure plan. On 13 February 2006, the Commission wrote to the City expressing the view that the Commission is unable to determine the City's request, because Part V of TPS 40, which includes cl 5.3.3.4 and cl 5.3.3.5, applies only to land zoned "Residential" under the Scheme and does not apply to land reserved for public purposes under the Scheme. On 22 February 2006, the City wrote to the Commission noting that the position indicated in the letter of 13 February 2006 appears to be contrary to the decision of the Supreme Court of Western Australia in Water Corporation v City of Canning & Anor [2005] WASC 109. On 10 April 2006, the Commission replied to the City's letter dated 22 February 2006 in terms including the following:

"The Commission does not concur with the position inferred by Justice Heenan in [Water Corporation v City of Canning & Anor] that structure plans pursuant to Part V of TPS 40 apply to land reserved under the Scheme.

Accordingly, the Commission reiterates its position that a structure plan can only be made, or varied, for land that is zoned Residential and this prerogative does not extend to land reserved for Public Purposes."

"(a) Note that the Commission has declined to play a role in the request from Avon Capital Estates (Australia) Limited for alteration to the Ranford Estate Structure Plan, and therefore it cannot be said that the Commission has approved of, or will approve of, the alteration.

(b) Note that it would therefore be pointless for Council to further consider the request for alteration at this time.

(c) Undertake that in the event that the Commission is compelled by legal action to consider the alteration, and if after having been so compelled, indicates it is prepared to approve the alteration, Council will further consider the alteration.

(d) Advise Avon Capital Estates (Australia) Limited and the WA Planning Commission of (a) to (c) above."

11 Clause 2.1.7 of TPS 40 states that the general provisions in cl 2.3 and elsewhere in the Scheme relating to developments and applications for development approval shall, insofar as they are not inconsistent with the provisions of cl 2.1, apply to Local Authority Reservations. The reserved land is a Local Authority Reservation. Clause 2.3.5.1 provides that an application is deemed to have been refused where a decision determining the application has not been conveyed to the applicant by the Council within 60 days of receipt of the application. Clause 2.7.8 of the Scheme provides, in effect, that an applicant who is aggrieved by a decision of the Council exercising a discretionary power under the Scheme may seek review of the decision by the Tribunal in accordance with Part 14 of the Planning and Development Act 2005 (WA) (PD Act).

12 It is common ground that Avon has a right to seek review of the City's deemed refusal of the application for alteration to the structure plan under the Scheme.

13 On 28 September 2006, the City notified the Commission and the Water Corporation of these proceedings and provided each authority with

a copy of the application for review, the orders of the Tribunal made on 7 August 2006, which included the listing of the proceedings for final hearing on 24 October 2006, and the statements of issues, facts and contentions filed on behalf of each party. Neither the Commission nor the Water Corporation sought leave to intervene in the proceedings, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA), or to make submissions in respect of the application for review, pursuant to s 242 of the PD Act. Mr DW McLeod, counsel for the City, indicated that neither the Commission nor the Water Corporation had responded to the City's letters of 28 September 2006.

14 It appears from a Department of Public Works memo dated 12 June 1961 and a letter from the General Manager of the Metropolitan Water Supply, Sewerage and Drainage Board to the Undersecretary for Lands, Department of Public Works dated 13 September 1968, that these authorities intended that the Department of Public Works would acquire, by agreement or compulsorily, the land within which the Serpentine Trunk Mains had been or were being constructed, following completion of the works. However, for reasons not disclosed by the evidence, the reserved land was not ultimately brought into public ownership. In consequence, when Avon purchased the land which is now the Ranford Estate in 1968, it acquired title to the reserved land, although it did not acquire title to the Serpentine Trunk Mains within the reserved land.

15 However, the Metropolitan Water Authority, which was the statutory predecessor to the Water Corporation, asserted to the Town Planning Board and to the City that it owned the land traversed by the Serpentine Trunk Mains in fee simple. When Avon's various land holdings in the area which is now the Ranford Estate were consolidated in 1989, titles in relation to portions of five former roads which passed over the Serpentine Trunk Mains were issued to the Water Corporation, presumably on the understanding that the Water Corporation already owned the remainder of the land traversed by the mains within the Ranford Estate.

16 On the basis of the Metropolitan Water Authority's incorrect assertion that it owned the land traversed by the Serpentine Trunk Mains, a number of planning decisions were made, including:

(i) the land traversed by the mains was reserved for public purposes under TPS 40;

(ii) Avon proposed, and the Commission and the City accepted, that if Avon landscaped the land traversed by the mains at its expense, Avon would receive a 50% public open space credit towards provision of public open space for the Ranford Estate; and

(iii) the structure plan for the Ranford Estate was approved showing the land traversed by the mains as "Landscaped POS".

17 In October 2001, by a routine title search, Avon discovered that it is the owner of the reserved land other than the five Water Corporation strips. Avon subsequently sought and obtained development approval from the City for the erection of five single dwellings on parts of the reserved land. The Water Corporation commenced proceedings in the Supreme Court challenging the validity of the development approvals.

18 In Water Corporation v City of Canning & Anor, Heenan J held that the grant of the five development approvals was vitiated by legal error in the following four respects, with the result that the development approvals were quashed:

(i) failure to take into account a relevant matter, namely "the need for the protection and the preservation of this pipeline, including future access" (at [31]; see [29]-[31]);

(ii) failure to accord natural justice to the Water Corporation (see [35]);

(iii) failure to refer the applications to the Commission, "because residential development of land within this corridor and local reserve is a use which is plainly not contemplated by the Structure Plan" (at [47]; see [37]-[47]); and

(iv) taking into consideration "an irrelevant and impermissible factor", namely "the financial consequences of refusing development approval" in terms of potential compensation under cl 2.1.11 of the Scheme (at [53]; see [50]-[53]).

19 The following five principal issues arise for consideration in this review:

(1) Whether the proposed alteration to the structure plan will not prejudice progressive development of the area the subject of the structure plan.

(2) Whether the proposed alteration to the structure plan will give rise to:

(i) any risk to or preclude access to and maintenance of the Serpentine Trunk Mains; or

(ii) any risk to the occupants or structure of a house on the site, because of the mains.

(3) Whether the proposed alteration to the structure plan is acceptable having regard to the orderly and proper planning of the locality and the conservation of the amenities of the locality.

(4) Whether the Tribunal should cause the City to notify any owner of land the Tribunal considers is affected by the proposed alteration to the structure plan and invite each owner to make a submission to the Tribunal regarding the proposal.

(5) Whether the approval of the Commission is required and, if so, whether the Tribunal can permit the proposed alteration before the Commission's approval has been obtained.

20 The Tribunal will address each of these issues in turn.

Will the proposed alteration not prejudice progressive development of the area?

21 This issue is a threshold matter for consideration under cl 5.3.3.5 of the Scheme. Unless the Tribunal considers that the proposed alteration will not prejudice progressive development of the area the subject of the structure plan, a discretion to permit the alteration does not arise.

22 The Tribunal considers that the proposed alteration will not prejudice progressive development of the area the subject of the approved structure plan, because the Ranford Estate has been otherwise fully subdivided. The City, therefore, has a discretion, in the circumstances of this case, as to whether to permit the proposed alteration to the structure plan, subject to the approval of the Commission. Under s 29(1) of the SAT Act, the Tribunal has a corresponding discretion.

Will the proposed alteration give rise to risk to or preclude maintenance of the mains or risk to a house?

23 In Water Corporation v City of Canning & Anor, Heenan J held, at [15], that "by virtue of s 39 of the Water Boards Act 1904 the Water Corporation plainly has a species of property in the pipeline and rights of access to it which may qualify for some form of statutory easement or, if not, are tantamount to an easement". At [29], his Honour held that "[w]hether [the Water Corporation's] interest [in the reserved land] was truly proprietary may be debatable, but it certainly had an interest and a right to the protection of this interest under its statutory regime". His Honour was satisfied that the Council recognised the need to take some steps to protect the pipeline, but "material considerations in the decision of the Council was [sic] that this could be accomplished by the Water Corporation acting alone under its statutory powers and that because of that it would not be orderly and proper planning to restrict the development uses out of considerations for the actual or potential present or future effect of the pipeline": at [30]. At [31], his Honour determined that "the need for the protection and preservation of this pipeline, including future access, was plainly a matter of public interest and general amenity, not only for the residents or landowners within the Randford [sic] Estate, but for those within the area of the Town Planning Scheme generally and in the wider community" and that the City's determination of the development applications in this respect was infected by "a serious error of law".

24 The parties to the proceedings before the Tribunal recognise that the potential impact of residential development on the site on the structural integrity of and access to the Serpentine Trunk Mains, and the potential impact of flooding from the mains on persons or property on the site, are material planning considerations in determining whether the proposed alteration to the structure plan should be permitted.

25 The applicant retained Mr Arcangelo Strano, a registered builder who holds qualifications in architecture and who practised as an architect for many years, to develop a design for a house on the site which takes into account the fact and location of the Serpentine Trunk Mains. Mr Strano has put forward an indicative design for a house located between the mains and the 10 metre wide public open space to the west. The indicative house has a total living area of 235 square metres and includes a double garage, kitchen, lounge/dining, entry hall, study/bedroom, separate bathroom and laundry at ground floor and three bedrooms and two bathrooms at first floor. The indicative house has a

minimum setback of 800 millimetres from the closest trunk main. Access to the house would be via a driveway from Oakhill Drive. The only structure which is proposed above the Serpentine Trunk Mains is a paved driveway.

26 It is Mr Strano's evidence that there is no architectural reason to preclude the house from being built. In his opinion, the house can easily be made to have a finish which is in harmony with the rest of the subdivision. He considers that a feature of the house is that it is in a parkland setting which makes it particularly attractive.

27 Avon retained Mr Anthony McGrath, a project engineer employed by Wood & Grieve Engineers, to formulate an engineering solution to enable the erection of the house in the location shown by Mr Strano. It is Mr McGrath's evidence that the house should be erected using a secant or contiguous pile system of construction, with each pile bored to a point below the base of the mains and ultimately forming a wall with a minimum setback of 600 millimetres from the mains. The City retained Mr Peter Airey, a structural engineer with over 45 years' experience, to review Mr McGrath's work. In accordance with the orders of the Tribunal, after exchanging statements of evidence, the engineering experts conferred with one another, in the absence of the parties and their representatives, and prepared and filed a joint statement of the matters upon which they agree, the matters upon which they disagree, and the reasons for disagreement.

28 The engineering experts agree that the technical solution proposed by Mr McGrath would ensure that the erection of a single house on the site would not give rise to any risk to the Serpentine Trunk Mains and would not preclude access to or maintenance of the mains. Mr Airey gave the following evidence in this respect:

"In my opinion the proposed secant or contiguous pile system proposed by Wood & Grieve can be installed without imposing any risk to the main pipeline as the system proposed is a cored system presumably under Bentonite which would not load the pipeline nor undermine it.

The piling system would achieve this desired result, particularly if the coring is performed using Bentonite so that there is no chance of soil collapse during individual pile installation.

The servicing of the pipeline requires access. The placement of the cored piles to the depth proposed and the tying in of the

piles on top of the floor slab of the proposed residence ensures that if the excavation on the residential side of the pipeline is required that the building will not be affected."

29 Mr Airey explained, and the Tribunal accepts, that the use of the secant system, rather than the contiguous pile system, and that the use of Bentonite, are necessary and appropriate. Mr PG McGowan of counsel, who appeared on behalf of Avon, indicated that his client is content to accept Mr Airey's preference for the use of the secant system and Bentonite. Mr Airey and Mr McGrath agree that Mr Airey's preference can be imposed by way of conditions of development approval.

30 The engineering experts also agree that, if the pile wall is returned at right angles to the pipeline at both ends of the house, preferably tied into the floor slab, and if the floor level of the house were raised above natural ground level, so that there is a freeboard above the flood level if the mains were to burst, the presence of the mains would not impose any risk to the house or to its residents. The experts consider that the level of freeboard is a detailed design issue which would need to take into account the flood routing of any potential discharge, and can be nominated at development approval stage.

31 As noted earlier, one of the four legal errors which Heenan J held vitiated the City's grant of development approval for the five houses was a failure to accord natural justice to the Water Corporation. As also noted earlier, the Water Corporation was given notice of these proceedings, but has not sought to participate or make comment.

32 However, the City tendered a letter dated 6 September 2006 to it from the Water Corporation, in which the Water Corporation made comments in relation to development applications for houses on the reserved land. The Water Corporation's letter states that it requires an "easement corridor" of a minimum of 4 metres from the centreline of each pipe.

33 Mr Airey took the Water Corporation's letter into account. However, Mr Airey agrees with Mr McGrath that a minimum setback of 600 millimetres is adequate for access and maintenance purposes. Further, Mr McGrath provided a photograph of Water Corporation employees working on one of the Serpentine Trunk Mains in Belmont which appears to confirm that 600 millimetres is adequate for access and maintenance purposes. As noted earlier, the indicative house designed by Mr Strano has a minimum setback of 800 millimetres. Access to the

mains would also require part of the paved driveway to be removed and reinstated. However, the evidence shows that the mains are covered in other locations by a sealed service station car park, roads, a freight rail crossing, industrial storage and a pre-school playground.

34 The Tribunal is, therefore, satisfied, on the joint evidence of the engineering experts, that the proposed alteration to the structure plan will not give rise to any risk to or preclude access or maintenance of the Serpentine Trunk Mains and will not give rise to any risk to the occupants or structure of a single house on the site.

Is the proposed alteration acceptable having regard to orderly and proper planning and conservation of amenities?

35 Mr Stuart Devenish, the Executive, Strategic and Regulatory Services of the City, a town planner with over 20 years' experience, provided a fair and balanced assessment of the application in the context of orderly and proper planning and conservation of amenities.

36 As Mr Devenish correctly observes, the proposed alteration to the structure plan raises a tension between two sets of considerations which are each relevant to orderly and proper planning, namely:

(i) the site is reserved for public purposes under TPS 40, was landscaped by Avon so that it would count as a 50% credit towards provision of public open space for the Ranford Estate, and is identified in the structure plan as public open space; and

(ii) the site is private, not public land, and its reservation for public purposes, landscaping by Avon, and identification in the structure plan as public open space, resulted from the Metropolitan Water Authority's incorrect assertion of ownership.

37 In relation to the first set of considerations, Mr Devenish observes that "few people would dispute that the more landscaped open space there is in a residential estate, the more pleasant it is for the amenity of the estate". It could, therefore, be said that to allow the site to be used for residential purposes, when it has been designated under the structure plan for a purpose serving the amenity of the estate, seems contrary to the public interest. Mr Devenish considers that it is a legitimate view that the mistaken understanding as to ownership must be ignored and the planning and development of the Ranford Estate has proceeded too far to enable the mistake to be redressed, given that the open space spine over the

Serpentine Trunk Mains is a design feature of the estate, may have been a consideration for purchasers of lots in the estate, and is currently available as a recreational amenity for residents of the estate.

38 In relation to the second set of considerations, Mr Devenish is of the opinion that, if Avon and the planning authorities had known the true position as to ownership, Avon would not have made the same concessions that it did in relation to public open space and the Commission would not have seen it as reasonable to require Avon to have made those concessions. Both Mr Devenish and Mr Adam Brown, a town planner who gave evidence on behalf of Avon, consider that, had the true position in relation to ownership been known in 1991 by Avon, the Commission and the City, it is likely that the Ranford Estate would have been designed to achieve a 100%, rather than a 50%, public open space credit for the site and the remainder of the reserved land, with a corresponding reduction in public open space and a higher lot yield elsewhere in the estate, or alternatively residential development within part of the reserved land. In relation to the latter option, Mr Devenish notes that, excluding the whole of the reserved land, the Ranford Estate still has 11.5% public open space as opposed to the Commission's usual requirement of 10%.

39 The Tribunal considers that the proposed alteration to the structure plan is acceptable, having regard to the orderly and proper planning of the locality and the conservation of the amenities of the locality, for the following seven reasons.

40 First, unlike the 10 metre wide strip to the west, the site is not reserved for recreation under the Scheme, but rather is reserved for public purposes. The public purposes involve facilitating the operation and maintenance of the Serpentine Trunk Mains.

41 Second, the engineering evidence addressed earlier in these reasons demonstrates that the public purposes for which the site is reserved under the Scheme can be satisfactorily accommodated notwithstanding development consistent with the alteration to the structure plan. In particular, the Water Corporation's statutory interest and right to the protection of its interest, which was recognised by Heenan J in Water Corporation v City of Canning & Anor, would be satisfactorily accommodated if the site were developed in accordance with the proposed alteration to the structure plan.

42 Third, the site is in private, not public ownership, and has never been required to be transferred into public ownership. Although the site may be currently available as a recreational amenity for residents of the estate, Avon can lawfully exclude residents from the site.

43 Fourth, although the structure plan was approved in 1991 on the understanding that Avon would landscape the site and the remainder of the reserved land in return for a 50% credit for public open space, this reflected a mistaken view that the land was in public, not private, ownership and was, therefore, available for public use and enjoyment. The Tribunal considers that the mistaken understanding as to ownership in 1991 is relevant in this respect.

44 Fifth, as the Commission confirmed in its letter to Mr Brown dated 14 August 2002, its "normal ... requirement" for public open space is 10% of the area of a residential estate. As the Tribunal determined in Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [22], "the '10% requirement' appears to be soundly based and has been consistently applied in this State for almost 50 years". Although the 10% requirement is not a maximum, and, as Mr Devenish observed, few people would dispute that the more landscaped open space there is in a residential estate, the more pleasant it is for the amenity of the estate, it is significant that, even without the reserved land, the public open space within the Ranford Estate exceeds the normal requirement in Western Australia by 1.5%. Furthermore, public access down the spine of the estate would be maintained through the 10 metre wide public open space corridor which is in public ownership. It is also to be noted that, in contrast to conditions of subdivision approval imposed before the true position in relation to ownership of the reserved land was known, the Commission has not required the landscaping of this land as a condition of the four subdivision approvals granted since that time, which include two approvals in relation to land which adjoins or is adjacent to the reserved land.

45 Sixth, as Avon has the right to exclude residents of the estate from the site, the only amenity that residents can lawfully derive from the landscaping and preservation of the site in its current state is visual amenity and a green buffer between developed areas of the estate. Given that the proposal involves a residential density less than R2.5, the visual amenity and green buffer is likely to substantially remain notwithstanding development in accordance with the alteration to the structure plan. Moreover, the house would be set back from Oakhill Road by

approximately 12 metres, in consequence of the location of the Serpentine Trunk Mains, and would be separated from the closest residential property by the 10 metre wide public open space corridor to the west.

46 Seventh, while the site is reserved for public purposes under TPS 40, it is zoned "Urban" under the Metropolitan Region Scheme. Mr Brown referred to a planning policy of which he is aware of over recent years which encourages residential infill and development in areas overlooking public open space and in close proximity to transport links. It is consistent with orderly and proper planning for infill development of urban land to take place, where the land is reasonably capable of development and the development is generally consistent with conservation of amenities.

47 Clause 5.3.3.5 confers a discretion on the City to notify any owner of land it considers is affected by the proposed alteration to the structure plan and to invite each owner to make a submission regarding the proposal. It is appropriate, in the circumstances of this case, for the Tribunal to consider whether to exercise this discretion.

48 The Tribunal agrees with the City's position that it is not necessary, in the circumstances of this case, to notify any owner of land affected by the proposed alteration. As noted earlier, Avon may lawfully exclude residents of the estate, and the public generally, from the site. In terms of direct impact on residential amenity, the site of the proposed dwelling is separated from the closest residential property to the east by a road reserve of approximately 20 metres and a setback within the site of approximately 12 metres. The site of the proposed dwelling is separated from the closest residential property to the west by the 10 metre wide strip of public open space.

Is the approval of the Commission required and, if so, is prior approval of the Commission required?

49 Mr McGowan submits that the proper characterisation of the Commission's position conveyed in its letters to the City dated 13 February 2006 and 10 April 2006 is that the Commission does not have a role to play and it is the City's decision alone as to whether to permit the alteration to the structure plan. Furthermore, Mr McGowan submits that, to interpret the Scheme in such a way that approval or prior approval of the Commission is required, in circumstances where the Commission

takes the view that it is not called upon to make a decision, would frustrate the operation of the Scheme.

50 In Water Corporation v City of Canning & Anor, Heenan J observed, at [37], as follows:

"There remains another issue, and it is whether or not the fact that this reserve passed through the middle of the area covered by the Structure Plan meant that it was subject to the Structure Plan, and that, therefore, any use of the land within the reserve which involved a departure from the use contemplated by the Structure Plan could not be approved without the endorsement of the [Western Australian] Planning Commission."

51 It is apparent from Heenan J's reasons over the following ten paragraphs of the judgment that his Honour determined, as an element of one of the four bases upon which the development approvals were quashed, that, on the proper interpretation of the Scheme, cl 5.3.3.4 precludes residential development on the reserved land, including the site, without alteration of the structure plan under cl 5.3.3.5, and that alteration of the structure plan requires endorsement by the Commission. The Tribunal, as presently constituted, is bound by these determinations.

52 Furthermore, the Tribunal does not accept the characterisation of the Commission's position advanced by Avon. The Commission has not said that it is the City's decision alone as to whether or not to permit the alteration of the structure plan. Rather, the Commission's position is that, contrary to the decision of the Supreme Court, the structure plan provisions of the Scheme do not apply in relation to the site, because it is reserved for public purposes, and is not zoned "Residential", under the Scheme.

53 However, Justice Heenan was not called upon to determine, and did not determine, whether cl 5.3.3.5 of the Scheme requires the prior approval of the Commission in order for the City to permit an alteration to an approved structure plan. Rather, his Honour determined that the City could not lawfully grant development approval for development not in accordance with the structure plan, until an alteration to the structure plan is approved by the Commission. Clause 5.3.3.5 does not expressly state that approval of the Commission before the City permits an alteration to the structure plan, subject to approval of the Commission, is required. Moreover, there does not appear to be any relevant legislative purpose which would require this construction. It follows that the Tribunal may

permit the proposed alteration to the structure plan, subject to the approval of the Commission.

54 Finally, the Tribunal notes that, anomalously, TPS 40 does not confer a right of review to the State Administrative Tribunal in relation to the Commission's deemed refusal of its approval to the proposed alteration. In the interests of public administration and consistency with other local planning schemes which require the Commission's approval or endorsement of structure plans and other strategic planning documents, consideration should be given to amending TPS 40 to confer a right of review in relation to the refusal or deemed refusal of the Commission's approval to a structure plan or a departure from or alteration to a structure plan. However, as the City's resolution made on 23 May 2006 in relation to the subject application recognised, there are potentially other remedies available to Avon.

55 The Tribunal considers that a discretion arises, in the circumstances of this case, as to whether to permit the proposed alteration to the structure plan for the Ranford Estate to allow the erection of a single house on the site. The Tribunal has also determined that the correct and preferable decision, in the circumstances of this case, is to permit the proposed alteration to the structure plan, subject to the approval of the Commission.

56 The engineering evidence demonstrates that the proposed alteration will not give rise to any risk to or preclude access to or maintenance of the Serpentine Trunk Mains which are owned by the Water Corporation and pass beneath the central portion of the site. The engineering evidence also demonstrates that the proposed alteration will not give rise to any risk to the occupants or structure of a house on the site, provided that an agreed engineering solution and conditions are imposed at the development application stage.

57 The Tribunal has determined that the proposed alteration is acceptable, having regard to orderly and proper planning and the conservation of the amenities of the locality. Although the structure plan was approved and subdivision of most of the estate proceeded on the assumption that the site and the remainder of the reserved land is in public ownership, and although the owner of the site obtained a 50% credit towards provision of open space for the estate by landscaping the reserved land, the fact is that the site is in private ownership, with the result that the public has no right to traverse it, the estate contains more public open

space than the normal requirement, including public access through the whole of the spine, and the visual amenity and green buffer value of the site to residents of the estate will be substantially retained, given the very low density residential development proposed. Further, although the site is reserved for public purposes under the Scheme, the relevant public purposes of the operation and maintenance of the Serpentine Trunk Mains can be satisfactorily accommodated, notwithstanding development in accordance with the proposed alteration to the structure plan. The site is reasonably capable of development for a single house and the development is generally consistent with the conservation of the amenities of the locality.

58 It follows that the application for review should be allowed and the deemed decision of the City to refuse to permit the alteration to the approved structure plan should be set aside and a decision substituted permitting the alteration, subject to the approval of the Commission.

2. The deemed decision of the respondent to refuse the applicant's application made on 15 September 2005 for alteration to the Ranford Estate Structure Plan to allow the erection of a single house on Pt Lot 317 Vol 1741 Fol 920 shown on the plan attached to the application is set aside and a decision is substituted permitting the proposed alteration to the Ranford Estate Structure Plan, subject to approval of the Western Australian Planning Commission.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER