Nicholls and Western Australian Planning Commission [2005] WASAT 40 (30 March 2005)

Nicholls and Western Australian Planning Commission [2005] WASAT 40 (30 March 2005) - WASAT 2005 case summary — Zoe

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1 This is a subdivision case which is unusual in two respects. First, the Western Australian Planning Commission ("the respondent"), which refused the subdivision application, conceded in essence that, when assessed against the current and applicable legislation, planning instruments and policies, the proposed subdivision is acceptable and appropriate. Second, although the respondent opposed the application principally on the basis of a draft amendment to the City of Swan Town Planning Scheme No 9 ("TPS 9") which aims to prevent subdivision of the land until the preparation and approval of an Outline Development Plan ("ODP"), the authority which prepared the draft amendment, namely the City of Swan ("the Council"), has expressly disavowed it, citing "likely insurmountable obstacles to the successful preparation of ODPs and coordinated development of the land". However, the respondent has recently advised the Minister for Planning and Infrastructure ("the Minister") that the area the subject of the draft amendment requires comprehensive planning and that the amendment should proceed subject to modifications. Most significantly, the evidence indicates that the Minister is supportive of the view expressed by the respondent.

2 The application before the Tribunal proposes the subdivision of Lot 27 (No 130) Swan Street, Hazelmere ("the site") to create four freehold lots. The site, which is located at the corner of Swan Street and Wynne Street, has frontages of 41.27 metres and 62.33 metres to those streets, respectively, and an area of 2,135 square metres. Each of the proposed allotments has at least one frontage to an existing street, the frontages ranging from 17.14 metres to 24.84 metres. The areas of the proposed lots are 490 square metres, 520 square metres, 562 square metres and 564 square metres.

3 The site is level and contains an existing dwelling-house and associated outbuildings. The site occupies the north-western corner of a large street block bounded by Wynne Street, Swan Street, Robertson Street and James Avenue. That street block forms part of a wider low-density residential precinct which is surrounded, on three sides, by rural land, and is bounded to the west by a railway line ("the Hazelmere Precinct"). With the exception of five allotments in the southern part of this precinct, which are irregularly shaped and significantly larger than the site, the existing allotments within the precinct appear to be generally comparably sized to the site. The precinct is separated from two pockets of more closely settled residential areas by the railway line.

4 The reason for the low density of development in the Hazelmere Precinct is that this area was unsewered until about five years ago. Clause 6.3.3(b) of TPS 9 provides that in unsewered areas of the subject Residential Zone, the minimum area of land per dwelling for all dwelling types is 1,000 square metres with a minimum lot frontage of 15 metres. Clause 3.1.8(b) of TPS 9 provides that, in unsewered areas, no residential development other than the erection of a single dwelling house shall be approved (unless there are exceptional circumstances).

5 The introduction of reticulated sewerage has removed these restrictions on development of the site and the surrounding area. The provision of reticulated sewerage in other parts of the local government area at about the same time had the same effect. Almost inevitably, landowners in the newly-sewered areas made application for subdivision approval to the respondent. It appears that a number of these applications proposed the creation of battleaxe-shaped lots. The Council determined that the removal of the density restrictions would ultimately result in a fourfold increase in the density of development in the areas in question.

6 In response, on 9 August 2000, the Council adopted Amendment No 382 to TPS 9 ("Amendment 382") for the purpose of advertising. The amendment has the effect, if implemented, of rezoning the newly-sewered areas from "Residential 1" (R20) to "Residential Development". Existing provisions of TPS 9, which are set out below, require the preparation and approval of an ODP before subdivision and most development occurs in the Residential Development Zone. Advertising and community consultation in relation to the amendment took place from November 2000 to June 2001. A total of 17 submissions were received during the advertising period. According to a report to Council dated 2 March 2005, "although considerable opposition to the amendment was expressed by some landowners, many acknowledged the need for coordinated development of these areas and could see the poor outcome that would result should lots be subdivided in a battleaxe-type configuration on a wide scale".

7 A report to Council dated 25 June 2003 stated as follows:

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15 Section 20(1)(a) of the TPD Act relevantly requires the approval of the respondent in order to subdivide land. Section 20(5) provides that, in giving its approval under s 20(1)(a), the respondent is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration.

16 Section 24(1) of the TPD Act provides that when, in the opinion of the respondent, a plan of subdivision may affect the powers or functions of a local government or public body, or any government department, the respondent shall forward the plan or a copy to the local government, public body or government department, as the case may be, for suggestions or recommendations. In the present case, the respondent forwarded the subdivision application to the Council, the Department for Planning and Infrastructure - Infrastructure Corridors, the Department of Industry and Resources - Safety and Environmental Branch (Petroleum Division), Epic Energy, the Water Corporation, Western Power and Telstra. The Department for Planning and Infrastructure - Infrastructure Corridors, the Department of Industry and Resources - Safety and Environmental Branch (Petroleum Division) and Epic Energy raised no objection to the proposal. The Water Corporation and Western Power raised no objection to the proposal and recommended the imposition of standard conditions of approval.

17 The Council recommended refusal of the application for two reasons, which were adopted as the reasons for refusal of the respondent, and which are set out at par 36 below.

18 Section 24(3) of the TPD Act provides that after considering the proposed plan of subdivision and any objections or recommendations received, the respondent "shall approve or refuse to approve the plan or require the applicant for approval to comply with such conditions as the [respondent] thinks fit to impose before approving the plan".

19 Section 26(1) of the TPD Act confers a right on an applicant for subdivision approval to seek a review by the State Administrative Tribunal, in accordance with Pt V of that Act, of the decision of the respondent to refuse subdivision approval. Section 61(1) provides that in determining an application in accordance with Pt V of the Act, the Tribunal is to have "due regard to relevant planning considerations" including any approved statement of planning policy prepared under s 5AA of the Act.

20 As noted above, the site is presently zoned "Residential 1" under TPS 9 and has an RCoding of R20. Clause 6.2.2 of TPS 9 provides as follows:

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50 I am conscious of the fact that a motivating factor which led to the preparation of Amendment 382 in the first place was a desire to avoid the creation of battleaxe-shaped lots, whereas the proposal does not involve any battleaxe subdivision. I am also conscious of the fact that a second motivating factor behind the preparation of Amendment 382 was to facilitate, by an ODP, the provision and upgrading of infrastructure to address the demands of a fourfold increase in the density of development and that, notwithstanding the lack of an ODP, the respondent has proposed, and the applicant has accepted, draft without prejudice conditions of subdivision approval which require the applicant to make a contribution to the Council for the Hazelmere Drainage Contribution Fund and to dedicate ten per cent of the site as a reserve for recreation (or to make a cashinlieu payment).

51 However, the two types of developer contributions sought by the respondent, and agreed to by the applicant, in this case, do not include contribution for all of the types of infrastructure which the increased proposed density on the site is likely to require or increase the demand for, and which is likely to be identified in an ODP, if Amendment 382 is ultimately approved by the Minister and gazetted. In particular, I accept the evidence of Mr Carter that road upgrading and community facilities are likely to be required.

52 More fundamentally, Amendment 382 is not simply concerned with avoiding battleaxe allotments and providing for equitable developer contributions for infrastructure and infrastructure upgrade in consequence of the anticipated increase in population. Its object, as Mr Bydder submitted, is to provide coordinated planning for a locality which is plainly now capable of a significant increase in residential population. Clause 6.2.1.1 of TPS 9 identifies the broad range of subdivision and development components which would form part of an ODP, if the amendment were approved. These components include road systems, pedestrian, bicycle and public transport routes, commercial, shopping, civic, educational, recreation and open space facilities, utility provision, residential coding, lot sizes and yield, development design standards, and environmental matters.

53 I am satisfied that approval of the proposed subdivision is inconsistent with the planning objective embodied or reflected in Amendment 382, namely proper and coordinated planning of the Hazelmere Precinct in consequence of the anticipated significant increase in residential population. In particular, in my opinion, approval of the subdivision application is likely to impair the effective achievement or the planning objective, because it would potentially remove land from an overall area which the amendment proposes should be comprehensively planned as an entity before any subdivision is approved.

54 Furthermore, in my opinion, approval of the application is likely to make more difficult the ultimate decision as to the form of Amendment 382. In this regard, the Council has already recommended the removal of certain areas form the ambit of Amendment 382 in consequence of approvals which have occurred in the interim. Approval of the subject application would, incrementally, render the ultimate form of the amendment more difficult. Although, as Mr Sri Ramanathan submitted on behalf of the applicant, the approval of the application "will not inhibit the preparation of an Outline Development Plan for the surrounding land", Amendment 382 envisages that the site forms part of an integrated whole and should be itself the subject of an integrated and coordinated planning document prior to subdivision.

55 It is true that the site is a corner lot located at or near the edge of Hazelmere Precinct. Furthermore, Mr Carter conceded that the subdivision proposed "would be unlikely to constrain an overall road pattern and the allocation of land for recreation purposes" under an ODP. Although Mr Carter gave evidence that approval of the application "may complicate the provision of a laneway/ROW within the street block if this is identified as being necessary following comprehensive planning", I find that it is extremely unlikely that the site would be utilised for such a lane, given that the lane would emerge at or close to the intersection of two existing streets, which is likely to give rise to road safety issues.

56 However, in my opinion, by proposing a form of subdivision prior to the formulation and adoption of a comprehensive planning document as envisaged by Amendment 382, the application would, if approved, "cut across to a substantial degree the considered conclusion of the respondent", and apparently of the Minister, that the precinct needs comprehensive planning before subdivision is approved (to borrow the words of Hardie J in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 125).

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60 In the present case, Amendment 382 certainly addresses the specific application, namely subdivision in the Hazelmere Precinct. As noted above, however, s 20(5) of the TPD Act provides that the discretion of the respondent is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition. Thus, even if Amendment 382 had been approved by the Minister and gazetted, it would remain within the statutory planning discretion of the respondent, and of this Tribunal on review, to grant approval to the subdivision, notwithstanding the fact that an ODP has not been prepared and approved or, if an ODP has been prepared or approved, notwithstanding the fact that the subdivision does not accord with it. However, in the exercise of the planning direction, the respondent or the Tribunal would have appropriate regard to the planning objective or planning approach of the relevant provisions of the scheme or, as Ipp J put it in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 at 535; 74 LGRA 68 at 80, to the "town planning consequences" or "town planning implications" of the provisions.

61 Amendment 382, which is fundamentally concerned with comprehensive planning of an area which is likely to undergo a significant increase in density, is based on sound town planning principles. As noted above, par 1 of SPP 1 recognises that the primary aim of planning is to provide for the "fair, orderly, economic and sustainable use and development of land". By, in effect, requiring comprehensive planning of the areas in question, Amendment 382 promotes the orderly, economic and sustainable use and development of land. The amendment gives effect to the key planning principles of planning for community and planning for infrastructure which are identified in SPP 1 and which "further define" the primary aim stated in par 1 of the Policy. It is also entirely consistent with the policy objectives of DC 1.1 which are set out earlier in these reasons.

62 In relation to the criteria of "certainty" and "imminence", I respectfully adopt and apply the following passage from Pearlman J's decision in Haywood and Bakker (supra) to the present case:

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63 As I have noted above, the "planning approach" which Amendment 382 adopts is comprehensive planning of the locality prior to the approval of any subdivision application.

64 It was Mr Sri Ramanathan's evidence and submission for the applicant that Amendment 382 has gone through a "long and arduous process" which it has not in fact finally emerged from. He described the amendment as "fraught with problems", and he expressed the opinion that its ultimate approval by the Minister might take another two years, because of the need to further advertise amendments proposed by the Council. He also noted that one of the amendments proposed by the Council is that the requirement for infrastructure contributions should be contained Draft Town Planning Scheme No 17, rather than in TPS 9, and that the conflict between the Council and the respondent in this regard is likely to delay the whole process and give rise to some doubt as to where it will lead.

65 In my opinion, the critical facts in the present case are that the Minister is supportive of the view expressed by the respondent that there is a need for comprehensive planning in the subject locality and that the Council has not recommended the removal of the site from the ambit of Amendment 382. In light of these fundamental facts, I am satisfied that the planning approach which Amendment 382 adopts will be brought into effect within the reasonably foreseeable future. In consequence of its certainty and imminence, the degree to which the draft addresses the specific application and is based on sound town planning principles, in my opinion, it is appropriate to accord significant weight to the planning objective and planning approach of Amendment 382 and to the inconsistency between the subject application and that objective and approach.

66 Finally, I reject the submission put on behalf of the applicant that "no weight should be given to Amendment No 382 ... as [unlike the situation in New South Wales] no head of power is provided in the Town Planning and Development Act 1928 to enable a consent authority to give consideration to an amendment (draft planning instrument)". Although, unlike New South Wales (see Environmental Planning and Assessment Act 1979 s 79C(1)(a)(ii)), in Western Australia there is no specific statutory provision which requires consideration be given to a draft amendment to a town planning scheme, it is wellrecognised in this State that such a draft is a relevant matter for consideration, where it is a seriouslyentertained proposal, as an aspect or element of orderly and proper planning. As a draft planning provision is a relevant matter for consideration where it is a seriouslyentertained proposal, it is necessary to accord appropriate weight to it in all the circumstances.

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81 As the Town Planning Appeal Tribunal recognised in Agnew Clough Ltd v Town Planning Board (supra) at 33 "the applicant for approval of a plan of subdivision is, as a matter of law, entitled to have his application determined in accordance with sound town planning principles applied in the context of existing controls on subdivision". If, in Western Australia, an operative provision of a town planning scheme cannot be determinative of a subdivision application, much less so can a draft amendment to a town planning scheme be determinative. However, the town planning implications of a draft provision, or as I have preferred to express it in these reasons, the planning objective or planning approach embodied or reflected in the draft provision, may be of such importance, and the inconsistency between the subdivision application and the planning objective or approach so great, that, when these considerations are weighed against all other relevant considerations, the subdivision application warrants refusal.

82 As I noted at the outset of these reasons, the respondent in essence conceded that the application before the Tribunal is acceptable and appropriate, when judged against the current controls. In particular, Mr Carter conceded under cross-examination that, in terms of subdivision design and lot sizes, the development complies with the relevant controls. Moreover, the proposal satisfies the third policy objective of DC 2.2, namely "to facilitate the supply of residential lots of a wide range of sizes and shapes which reflect the statutory provisions of town planning schemes, the availability of reticulated sewerage and the need for frontage to public roads".

83 These are important factors and significant weight needs to be attached to them in the overall assessment of the application. However, as I have found, significant weight should also be accorded to the planning objective and planning approach of Amendment 382 and to the inconsistency between the application and that objective and approach in the present circumstances. I have found that approval of the present application is likely to impair the effective achievement of the fundamental objective of Amendment 382, namely coordinated planning of the relevant precinct. I have also found that the approval of the application is likely to make the ultimate form of Amendment 382 a more difficult matter.

84 In the particular, and somewhat unusual circumstances of this case, I have determined that, on balance and taking into account all of the considerations, the subdivision application does not warrant approval, principally because it is so fundamentally inconsistent with the sound planning objective of Amendment 382. In this case, in my opinion, the public interest in coordinated and comprehensive planning should prevail.

85 I have also found that approval of the proposed subdivision would create an adverse planning precedent in relation to other corner allotments in the precinct. This finding strengthens my conclusion that the application should be dismissed.

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Nicholls and Western Australian Planning Commission [2005] WASAT 40 (30 March 2005)

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