WOLLINSKI and WESTERN AUSTRALIAN PLANNING COMMISSION [2026] WASAT 44

[2026] WASAT 44 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WOLLINSKI and WESTERN AUSTRALIAN PLANNING COMMISSION [2026] WASAT 44 MEMBER : MR R POVEY, MEMBER HEARD : 23 AND 24 FEBRUARY 2026 DELIVERED : 1 MAY 2026 FILE NO/S : DR 136 of 2025 BETWEEN : BENJAMIN WOLLINSKI Applicant AND WESTERN AUSTRALIAN PLANNING COMMISSION Respondent Catchwords: Planning and development - Subdivision - Proposed three lot survey strata subdivision - Land coded R50 - Proposed variation to minimum and average site area requirements - Orderly and proper planning - Concept plan - Integration of subdivision and development - Planning precedent Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 33 City of Kalgoorlie-Boulder Local Planning Scheme No 2 Interpretation Act 1984 (WA) -- 1 of 44 -- [2026] WASAT 44 Page 2 Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2) Planning and Development Act 2005 (WA), s 3(1), s 32C(1), s 135, s 135(1), s 138, s 157(1), s 164A, s 241, s 241(1)(a), s 251(1), Pt 3A, Pt 10, Div 2, Div 3, Div 4, Div 5 Planning and Development Regulations 2009 (WA), reg 21, reg 21(a) Residential Design Codes Volume 1, Pt A, cl 1.2, cl 2.2.2, Pt C, C3.1.1, cl 1.1, cl 1.2, cl 2.1, cl 2.3, cl 3.1, cl 3.6, Pt D, cl 1.1, P.1.1.1, P1.1.2, P1.1.3, Table D State Administrative Tribunal Act 2004 (WA), s 27(2), s 32, s 32(2) Result: The application for review is dismissed The decision of the respondent is affirmed Category: B Representation: Counsel: Applicant : In Person Respondent : Mr R Shaw (acting as Planning Advocate) Solicitors: Applicant : N/A Respondent : Department of Planning, Lands and Heritage (acting as Agent) Case(s) referred to in decision(s): Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 (2002) 122 LGERA 433 Harper Investments WA Pty Ltd and Presiding Member of Metro Inner-North Joint Development Assessment Panel [2023] WASAT 130 Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Martin v Western Australian Planning Commission [2018] WASC 42 -- 2 of 44 -- [2026] WASAT 44 Page 3 Moussalli and Western Australian Planning Commission [2026] WASAT 9 Nicholls and Western Australian Planning Commission [2005] WASAT 40 Rodriguez v Telstra Corporation Ltd [2002] FCA 30 Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 Taylor and Western Australian Planning Commission [2023] WASAT 16 Taylor and Western Australian Planning Commission [2023] WASAT 16 (S) -- 3 of 44 -- [2026] WASAT 44 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 This case deals with an application for survey strata subdivision to create three survey strata lots and one common property lot (proposed subdivision) at No 136 (Lot 33) Burt Street, Boulder (subject land). 2 On 10 September 2025, the Western Australian Planning Commission (WAPC or respondent) refused the proposed subdivision. 3 Mr Benjamin Wollinski seeks review of that decision pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act). The review is conducted by the Tribunal by way of a hearing de novo for the purpose of producing the correct and preferable decision based on the information and evidence before it at the time of the review. 4 For the reasons given below, I have determined that the 'correct and preferable decision', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), is to dismiss the application for review and affirm the decision of the respondent. The subject land and the proposed subdivision 5 The subject land, I find: (a) is zoned 'Residential' under City of Kalgoorlie-Boulder Local Planning Scheme No 2 (LPS 2) with a density code of R50; (b) is rectangular, with an area of 506m2, a street frontage of 10.06 metres and a depth of 50.29 metres; (c) fronts the southern side of Burt Street and has a right of way (or laneway) at the rear;1 (d) has a downward slope of approximately 760 millimetres from the street boundary to the rear laneway;2 and (e) is currently developed with a single storey weatherboard and tile roofed single dwelling which is to be demolished if the proposed subdivision is approved. 6 The subject land is proposed to be subdivided as follows:3 1 The parties agree the laneway provides public access to the subject site. 2 Witness Statement of Jessica Birbeck, para 15, Exhibit 5. -- 4 of 44 -- [2026] WASAT 44 Page 5 (a) Lot 1 - 105.04m2; (b) Lot 2 - 103.1m2; (c) Lot 3 - 103.43m2; and (d) Common property lot - 194.09m2. 7 Lots 1 to 3 are generally rectangular but with irregular, narrower, parts. The boundaries between the three lots are not identified on the survey strata plan; however, the plan identifies the areas proposed for each lot.4 8 The common property lot is an irregular shape. It is primarily intended for vehicle and pedestrian access to Lots 1 to 3 and runs along the western side of the subject land for its length, connecting the Burt Street front boundary to the boundary with the rear laneway. This access has a minimum width of 3 metres and widens a further 1.816 metres in two locations. The widenings are intended to provide access to the vehicle parking area on each lot. The common property lot also widens to extend along the entire Burt Street frontage for a width of 2 metres and along the entire laneway frontage for a width of 1 metre. The concept plan 9 The proposed subdivision is accompanied by a development concept plan (concept plan). This is described as 'the intended built form development plans'5 and shows three single storey dwellings, each with two bedrooms, two bathrooms and one car parking space.6 The three dwellings are accessed from the common property lot. 10 The concept plan, or proposed subdivision, does not propose any 'special purpose dwellings' as that term is defined in the Residential Design Codes Volume 1 (R-Codes). 11 The concept plan is not an application for development approval and, on the evidence before me, Mr Wollinski has not lodged a development application with the City of Kalgoorlie-Boulder (City) seeking approval under LPS 2 for the development depicted on the concept plan. 3 Respondent's s 24 Bundle of Documents, page 4, Exhibit 3. 4 Respondent's s 24 Bundle of Documents, page 7, Exhibit 3. 5 Respondent's s 24 Bundle of Documents, page 35, Exhibit 3. 6 Respondent's Statement of Issues, Facts and Contentions (SIFC), para 2, Exhibit 2. -- 5 of 44 -- [2026] WASAT 44 Page 6 12 I will return to consider the concept plan, in the context of the proposed subdivision, later.7 The locality and streetscape of Burt Street 13 It is uncontroversial that the relevant locality is the area bounded by Lionel Street to the west, Moran Street to the north, Brookman Street to the east and Piesse Street to the south.8 The properties within the locality are, like the subject land, zoned 'Residential' under LPS 2 with a density code of R50, except for the Recreation Hotel at No 140 Burt Street, on the corner of Burt Street and Lionel Street, which is zoned 'Commercial' and coded R40. 14 Other non-residential uses exist in Burt Street, in the locality, as follows: (a) Nos 125 - 127, the former Palace Theatre; (b) No 134, a Masonic Temple, adjoining the subject land to the west; and (c) No 137, a single house that appears to be used as an office. 15 The Recreation Hotel, the Masonic Temple and the Palace Theatre are heritage listed buildings. 16 The other buildings in Burt Street, in the relevant locality, are primarily low density, single storey weatherboard cottages9 with low or open style street fencing. Four lots have been redeveloped with grouped dwellings, being: (a) No 128 - six grouped dwellings; (b) No 133 - six grouped dwellings; (c) No 135 - four grouped dwellings; and (d) No 141 - three grouped dwellings. 17 On the northern side of Burt Street, within the locality, all but two lots have a street frontage of approximately 20 metres. On the southern side, the same side as the subject land, six of the 13 lots have narrower 7 Commencing at [146]. 8 As depicted in the Respondent's SIFC, Annexure 1, Exhibit 2. 9 The applicant submits the single storey cottages are dilapidated (Applicant's SIFC, para 17, Exhibit 7). However, there is no evidence before me, including photographs, that provides foundation to this submission. -- 6 of 44 -- [2026] WASAT 44 Page 7 frontages of approximately 10 metres, with these lots located in the western half of the street block. Also, within the locality are four lots in Moran Street and three lots in Piesse Street with a narrower 10 metre frontage.10 18 Burt Street, within the locality, is line marked with on-street car parking bays and nine of the 24 lots have a vehicle crossover from Burt Street. There are also street trees within the verge. 19 Beyond the locality, approximately 170 metres to the west in Burt Street, is the Boulder Activity Centre, the commercial and social hub of Boulder, characterised by one and two storey commercial and civic buildings with nil street setbacks and pedestrian awnings. 20 LPS 2 includes 'Special Control Area 10' (SCA 10) which is a character protection area. SCA 10 primarily covers the Burt Street properties in the Boulder Activity Centre but it also extends westwards into the locality to include the Palace Theatre and several residential lots at the eastern end of the locality, including the corner lot at the intersection of Moran Street and Brookman Street and the corner lot at the intersection of Piesse Street and Brookman Street. The subject land sits outside the SCA 10 boundary, which is approximately 80 metres to the east. Procedural history and the final hearing 21 The WAPC refused the proposed subdivision on 10 September 2025 and, in doing so, identified four reasons:11 1. The proposed subdivision does not comply with the Western Australian Planning Commission's Operational Policy 1.1 Subdivision of land - General Principles, Operational Policy 2.2 - Residential Subdivision and the Residential Design Codes Volume 1 by reason that it has not been demonstrated that the proposed lots are capable of lawful development. 2. The proposed subdivision does not comply with Western Australian Planning Commission's Operational Policy 2.2 - Residential Subdivision and the Residential Design Codes Volume 1 by reason that the proposed lots do not fulfil the average and minimum site area of the R50 density code. 3. The proposed subdivision does not comply with the Western Australian Planning Commission's Operational Policy 2.2 - 10 Respondent's SIFC, Annexure 1, Exhibit 2. 11 Exhibit 3, page 3. -- 7 of 44 -- [2026] WASAT 44 Page 8 Residential Subdivision, and the Residential Design Codes Volume 1 by reason that the proposed lots do not provide a suitable level of amenity, services and access. 4. Approval of the application would set an undesirable precedent for further subdivision of other similar lots in this locality which would undermine the objectives and provisions of the Western Australian Planning Commission's Operational Policy 2.2 - Residential Subdivision [and] the Residential Design Codes Volume 1 for lots subject to the same density coding. 22 Mr Wollinski lodged an Application for Review of the WAPC's decision with the Tribunal on 11 September 2025 and, following mediation, the matter was programmed for final hearing (hearing). The hearing took place at the Tribunal on 23 and 24 February 2026. 23 At the hearing, I heard expert evidence from Ms Jessica Birbeck, a qualified town planner with nearly 13 years' experience who holds a Bachelor of Science (Urban and Regional Planning). Ms Birbeck was called by the WAPC and is currently employed by the Department of Planning, Lands and Heritage (DPLH) in the role of Principal Planning Officer, Planning Appeals. Prior to the hearing she filed a witness statement, which at the hearing she adopted as her evidence-in-chief and she was cross-examined. 24 At the hearing, Mr Wollinski did not adduce witness evidence, expert or otherwise. Instead, he relies on two bundles of documents accepted into evidence at the hearing,12 and he cross-examined Ms Birbeck. Should the evidence of Ms Birbeck be accepted and accorded weight? 25 Mr Wollinski submits that Ms Birbeck's expert evidence is not impartial or independent because she is an employee of DPLH and in her role is a direct report to Mr Ryan Shaw, the WAPC's planning advocate at the hearing. Further, in preparation for the hearing, Ms Birbeck and Mr Shaw, together undertook a visit to the subject land and locality in Boulder and met with an officer at the City. Mr Wollinski also submits, Ms Birbeck's witness statement amounts to an 'advocacy document' and identifies his various reasons for this.13 12 Exhibit 8 and Exhibit 9. 13 Applicant's response to and critique of the witness statement of Jessica Birbeck, para 9.2, Exhibit 11. -- 8 of 44 -- [2026] WASAT 44 Page 9 As a consequence, Mr Wollinski further submits that Ms Birbeck's evidence should be accorded no weight.14 26 I observe that Mr Wollinski formed these opinions, and conveyed them in his opening submissions, prior to cross-examination of Ms Birbeck.15 27 In the recent decision of Moussalli and Western Australian Planning Commission (Moussalli), at [66] - [67], Deputy President Jackson considers a complaint as to the independence of the witness called by the WAPC. In that case, Mr Moussalli also complains that the witness should not have been permitted to give evidence.16 28 In Moussalli, DP Jackson observes that, '[i]n the case of evidence given by an expert, less weight may be given to it if the expert is found to be less than independent and objective'.17 He continues:18 I should say that it is not uncommon for expert evidence to be given by planners employed by a respondent government body. In saying so, I should not be taken to either endorse or criticise the practice. Rather, I simply note that, in my view, Mr Moussalli's complaint is misconceived. The appropriate way for Mr Moussalli to have challenged Mr McCluggage's independence was through cross-examination and in submissions to Member Lavery as to the weight that should be given to it. 29 Here, Mr Wollinski correctly identifies the relevant consideration before me is the 'weight' that I should accord Ms Birbeck's evidence. 30 Having considered Mr Wollinski's submissions, and Ms Birbeck's written evidence and her oral responses under cross-examination to questions which challenge her independence and objectivity, it is clear to me that Ms Birbeck well understands her role and her responsibilities as an expert witness in this proceeding, notwithstanding she is an employee of the DPLH, usually supervised by Mr Shaw and visited the locality in Boulder and the City's offices with him in preparation for the hearing. 31 Ms Birbeck's written evidence includes three statements. 14 Applicant's response to and critique of the witness statement of Jessica Birbeck, para 9.3, Exhibit 11. 15 ts 7, 23 February 2026. 16 Moussalli and Western Australian Planning Commission [2026] WASAT 9 at [58(b)]. 17 Moussalli at [66]. 18 Moussalli at [67]. Footnote omitted. -- 9 of 44 -- [2026] WASAT 44 Page 10 32 Firstly, in her written evidence she acknowledges that although she is an employee of DPLH, her role in this proceeding is to be independent and her duty as a planning witness is to assist the Tribunal impartially and not act as an advocate for the WAPC.19 33 Secondly, Ms Birbeck acknowledges that she has read the Tribunal's 'Info Sheet 11 - Guide for experts giving evidence' and, importantly in my view, she agrees to be bound by the expert's obligations contained in that document.20 34 Thirdly, Ms Birbeck confirms that the contents of her witness statement are a true and accurate record of her own views and opinions.21 35 Further, Ms Birbeck, under her affirmation to tell the whole truth, under cross-examination gives similar forthright responses as to her independence. She confirms her views are her own professional opinions and states her role 'is to provide an independent and objective assessment of the subdivision proposal'22. She says, 'I fully understand my role in this proceeding as the expert witness and take those responsibilities extremely seriously'23 and 'I've conducted myself in accordance with my obligations to the [T]ribunal'.24 36 While Ms Birbeck's evidence is generally consistent with the WAPC's case, I have considered her written and oral evidence carefully and it does not raise, in my mind, concerns as to a lack of independent reasoning or objectivity. 37 Her written opinions are, in my view, explained and supported with reasoning. Similarly, her responses to questioning were direct and supported by reference to relevant documents, the subject land, the locality and relevant examples and explanations drawn from her professional experience. 38 Ms Birbeck is, in my view, appropriately qualified and sufficiently experienced to form an opinion and give expert evidence as a town planning expert in this matter. I found Ms Birbeck to be a credible and reliable witness and I accept her evidence is admissible. 19 Witness Statement of Jessica Birbeck, para 5, Exhibit 5. 20 Witness Statement of Jessica Birbeck, para 10, Exhibit 5. 21 Witness Statement of Jessica Birbeck, para 11, Exhibit 5. 22 ts 131, 24 February 2026. 23 ts 132, 24 February 2026. 24 ts 133, 24 February 2026. -- 10 of 44 -- [2026] WASAT 44 Page 11 39 Given Ms Birbeck's forthright written and oral evidence which, in my view, demonstrate she well understands her overriding duty to assist the Tribunal, I accord her expert evidence significant weight in this proceeding. The absence of witness evidence adduced by Mr Wollinski 40 In the absence of witness evidence, expert or otherwise, adduced by Mr Wollinski, I observe, Ms Birbeck's expert evidence is, in effect, uncontested. Mr Wollinski was content to proceed without witness evidence,25 despite the contested nature of the hearing. While s 32(2) of the SAT Act means the Tribunal is not bound by the rules of evidence, as her Honour Kiefel J states, '[t]he more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force'.26 41 While not evidence, Mr Wollinski also provided a number of written submissions addressing various matters from the applicant's perspective which largely supplement his oral submissions made at the hearing.27 The planning framework and other documents 42 The relevant planning framework which I have considered in determining this application includes: (a) PD Act; (b) Planning and Development Regulations 2009 (WA) (PD Regulations); (c) LPS 2 which incorporates Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions); (d) State Planning Policy 1 - State Planning Framework (SPP 1); (e) Operational Policy 1.1 - Subdivision of land - general principles (OP 1.1); 25 ts 3, 23 February 2026. 26 In Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [25], relating to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) cited in Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 at [40] referencing to s 32 of the SAT Act. 27 Mr Wollinski's written submissions, in addition to the Applicant's SIFC, are at Exhibit 10, Exhibit 11, Exhibit 12, Exhibit 13, which includes Exhibit 13.1 to Exhibit 13.6. -- 11 of 44 -- [2026] WASAT 44 Page 12 (f) Operational Policy 2.2 - Residential Subdivision (OP 2.2); (g) Development Control Policy 1.3 - Strata Titles (DCP 1.3); (h) Planning Code - Residential Design Codes Volume 1 (R-Codes); 28 43 The now superseded 2024 version of the R-Codes, current at the time of the hearing, contained, at Pt C, cl 4.0 and cl 5.0, 'special transitional provisions' which ceased to have effect from 10 April 2026. At the time of the hearing a special transitional provision relating to 'Open Space', at cl 5.1, replaced the deemed-to-comply (DTC) provision at Pt C, cl 3.1, C3.1.1, which addresses 'Site cover'. However, as the special transitional provisions no longer form part of the R-Codes,29 I have not taken them into account in arriving at my decision. The parties, being aware of this impending change to the planning framework at the time of the hearing, addressed or acknowledged it in their submissions.30 Likewise, Ms Birbeck addresses it in her evidence.31 44 In addition, Mr Wollinski identifies the following documents which I have considered: (a) Development Control DC 2.6 - Residential Road Planning; (b) Liveable Neighbourhoods - Appendix 3, which addresses 'The walkable catchment technique'; and (c) WA Housing Strategy 2020 - 2030 (WAHS). 45 As to the WAHS, Mr Wollinski submits this must be given due regard because it 'forms part of the State Planning Framework and is expressly referenced in [SPP 1].32 I do not agree, as I will explain. 46 While SPP 1 references planning for a range of uses, including housing, it does not 'expressly reference' the WAHS and, therefore, it is not a document to which I am required to have due regard. 47 Further, the WAHS is a broad strategy published by the Department of Communities (DoC) addressing the diverse housing 28 Including the R-Codes Practice Notes (April 2024) and R-Codes Explanatory Guidelines (March 2024). 29 The current, 2026 version, of the R-Codes came into force on 10 April 2026 and no longer includes the 'Special transitional provisions'. 30 See Respondent's SIFC, para 64, Exhibit 2, and acknowledged in the Applicant's SIFC, para 64, Exhibit 7. 31 Witness Statement of Jessica Birbeck, Attachment JB5 - 3.1 Site Cover, Exhibit 5. 32 Applicant's response to and critique of the witness statement of Jessica Birbeck, para 4.2, Exhibit 11. -- 12 of 44 -- [2026] WASAT 44 Page 13 needs for the entire State for the period 2020 to 2030. It is not, in my view, intended to inform the assessment of an individual application for subdivision approval. 48 Mr Wollinski's submission is, therefore, misguided and this document is of no assistance, in my view, to the present case, which involves a three lot survey strata subdivision. I accord it no weight. The statutory power to approve subdivision 49 It is necessary to briefly set out the sections of the PD Act, and associated PD Regulations, relevant to the approval of subdivision. 50 The power to approve subdivision is in s 135(1) of the PD Act: (1) A person is not to - (a) subdivide any lot; or (b) amalgamate any lot with any other lot, whether within the same district or otherwise; or (c) lay out, grant or convey a road, without the approval of the Commission. 51 The WAPC's functions when approving subdivision are set out in s 138 of the PD Act which provides: (1) The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective. (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 -- 13 of 44 -- [2026] WASAT 44 Page 14 (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. (4) Despite subsection (3), the Commission is to ensure that an approval under section 135 or 136 complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration. 52 His Honour Chaney J observes in Martin v Western Australian Planning Commission [2018] WASC 42 (Martin) that the discretion that arises under s 135 'is unfettered save that it must be exercised having regard to the scope and purpose of the PD Act'.33 53 For completeness, the overarching scope of the PD Act is 'An Act to provide for a system of land use planning and development in the State and for related purposes'.34 The purpose of the PD Act set out in s 3(1), which is relevant is: … (c) promote the sustainable use and development of land in the State. 33 Martin at [33]. 34 PD Act, page 1. -- 14 of 44 -- [2026] WASAT 44 Page 15 54 Additionally, in Martin Chaney J identifies reg 21 of the PD Regulations being the matters to be considered on an application for subdivision.35 The regulation provides: Matters to be considered on application for subdivision When considering a section 135 application, the Commission must have regard to all relevant matters including but not limited to these - (a) the size, shape and dimensions of each lot; (b) the services available to each lot; (c) drainage of the land; (d) access to each lot; (e) the amount of public open space to be provided; (f) any relevant planning scheme; (g) any relevant regulations made by the Minister under the Act; (h) any relevant local laws relating to town planning. 55 Further, s 241 of the PD Act identifies the Tribunal is to have regard to certain matters and s 241(1)(a) is relevant in this case: (1) In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including - (a) any State planning policy which may affect the subject matter of the application[.] Is cl 67(2) of the Deemed Provisions applicable? 56 Mr Wollinski submits that cl 67(2) of the Deemed Provisions contains matters relevant to the exercise of discretion in this case because he submits, in essence, 'development'36 includes 'subdivision'.37 57 However, in other apparently contradictory submissions, Mr Wollinski, citing the Tribunal's decision in Landpark,38 accepts, correctly in my view, 'that a subdivision application is a separate 35 Martin at [33]. 36 As that term is defined in the PD Act. 37 Para 3.2 b), Exhibit 11. 38 Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130, see Landpark at [3] and [23]. -- 15 of 44 -- [2026] WASAT 44 Page 16 process from development approval'.39 He also accepts the 'decision-maker in respects to development is the [City]/Development Assessment Panel and not the WAPC'.40 58 In the context of this proceeding, cl 67(2) of the Deemed Provisions is not applicable, in my view, as I will explain. 59 The Deemed Provisions form part of LPS 2. The chapeau of cl 67(2) makes it plain that the matters listed are matters 'the local government is to have due regard to' when considering 'an application for development approval'. The WAPC, or the Tribunal on review, is not a local government and the matter before me concerns an application for subdivision approval, not an application for development approval. 60 The question whether the term 'development' excludes 'subdivision' was addressed by DP Jackson and Senior Member Willey in Taylor and Western Australian Planning Commission [2023] WASAT 16 (Taylor) at [149] to [163]. The Tribunal held, in summary, 'the term "development", when used in a planning instrument may, in some circumstances, encompass subdivision'.41 However, DP Jackson and Senior Member Willey later continue:42 … it is clear that where cl 1.2 of the R-Codes speaks of the R-Codes providing a 'comprehensive basis for the control of residential development', it is speaking of development in its narrow sense; i.e. excluding subdivision. 61 As the matter before me is confined to an application for subdivision approval and does not encompass development or 'works', outside of those ordinarily contemplated by s 157(1) of the PD Act, the proposed subdivision does not include 'development'. 62 As such, there is no basis for cl 67(2) of the Deemed Provisions to be engaged when considering the proposed subdivision before me. 63 Further, in Taylor, the Tribunal explains the PD Act creates a separate regime for subdivision under Divisions 2, 3 and 4 of Pt 10 of the PD Act, while development control is addressed under 39 The Commission's persistent disregard of Tribunal guidance: Taylor and Landpark, para 3, Exhibit 13.6. 40 Applicant's SIFC, para 169, Exhibit 7. 41 Taylor at [157]. 42 Taylor at [187]. Clause 1.2 of the 2026 version of the R-Codes contains the same wording. -- 16 of 44 -- [2026] WASAT 44 Page 17 Div 5 of Pt 10.43 DP Jackson and Senior Member Willey observe in Taylor:44 … That 'split planning system' is also reflected in the terms of, for example, s 164A of the PD Act which provides for, in some circumstances, the 'integration' of subdivision and development. The inclusion of s 164A in the PD Act emphasises the fact that, but for that section the two processes would, otherwise, be separate. 64 Mr Wollinski acknowledges s 164A and accepts it 'is irrelevant as the [WAPC] did not apply this section of the PD Act and refused the application'.45 However, in a de novo review proceeding such as this, where I have the same powers and discretions as the WAPC, I will consider, in the circumstances of this case, whether s 164A should be engaged. 65 I will address this at sub-issue 1(b) in the context of orderly and proper planning and also consider cl 3.7.3 of OP 1.1, which provides guidance on the integration of subdivision and development.46 Are other documents guiding the exercise of discretion relevant? 66 Mr Wollinski also submits a number of other documents are relevant to the exercise of discretion in this case and identifies:47 (a) Development Assessment Panel Practice Notes: Making Good Planning Decisions (DAP-MGPD); (b) Development Application Exercise of Discretion Guidelines (DAEDG); and (c) Residential Design Codes Volume 1 Explanatory Guidelines (Explanatory Guidelines). 67 I observe the DAP-MGPD and the DAEDG are documents that address the exercise of discretion in relation to an application for development approval, not subdivision. While the guiding principles48 relevant to the exercise of discretion are undoubtedly sound, these 43 Taylor at [152]. 44 Ibid. 45 Applicant's SIFC, paras 41 - 42, Exhibit 7. 46 At [151]. 47 Applicant's SIFC, paras 131, 135 and 142 - 157, Exhibit 7. 48 See for example the 'Guiding Principles for the Exercised of Discretion' at cl 4 of the DAEDG. These principles are derived from Supreme Court's decision in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226, to which I will later refer at [140] - [141]. -- 17 of 44 -- [2026] WASAT 44 Page 18 documents do not have application here and Mr Wollinski's reliance on them is, in my view, misplaced, as I will explain. 68 Development Assessment Panels in Western Australia do not have a role in the approval of subdivisions. That responsibility rests with the WAPC, as the DAP-MGPD plainly sets out.49 Therefore, a practice note directed to the decision making of a Development Assessment Panel is not relevant here. 69 Similarly, and although the DAEDG is part of the State Planning Framework set out in SPP 1, the DAEDG makes it clear, at cl 3, 'The scope of the Guidelines applies only in the context of the exercise of discretion in the assessment and determination of applications for development approval'.50 70 Turning to the Explanatory Guidelines, the purpose of this document 'is to explain and assist in the interpretation and application of the [R-Codes]'.51 As the Tribunal observes in Taylor,52 I also bear in mind that the Explanatory Guidelines 'merely represent the subjective view of the [WAPC] [and] they cannot assist in the proper construction of the text's objective meaning'. However, Pt D, at Section 1.1, of the Explanatory Guidelines addresses site area, including site area variations, and states as follows:53 The minimum and average site area in Table D may not be varied except where the WAPC is satisfied that the proposal addresses P1.1.2 and P1.1.3 and approves the application. This provides some flexibility to accommodate minor reductions to minimum and average site areas and includes the creation of a green title lot, survey-strata lot, or strata lot for an existing authorised grouped and multiple dwelling development that does not meet the minimum and average area requirements specified in Table D. As the WAPC is the only decision-maker that may approve a variation to the minimum or average site area, multiple dwelling development approved by the local government (including where a Joint Development Assessment Panel is the decision-maker), will need to comply with the average site area requirement. This is distinct from multiple dwelling development subject to the R-Codes Volume 2 where all decision-makers have discretion to vary the plot ratio requirements. Grouped dwelling development in advance of an approved subdivision 49 Development Assessment Panel Practice Notes: Making Good Planning Decisions, March 2021, page 6. 50 Applicant's Bundle of Documents, Attachment I, page 1, Exhibit 8. 51 Explanatory Guidelines, Pt A, Section 1.1 Purpose. 52 Taylor at [209]. 53 Original emphasis. -- 18 of 44 -- [2026] WASAT 44 Page 19 is similarly required to comply with the minimum and average site area requirements where the local government is the decision-maker. Notwithstanding this, there are a range of site area concessions available for proponents to use to gain additional dwelling yield, subject to meeting certain criteria. The subdivision of land and ability to vary minimum and average site area requirements is also subject to other WAPC polices [sic], in particular Operational Policy 2.2. Residential Subdivision. 71 The Explanatory Guidelines do not, in my view, have a broader use in this case, because this matter is confined to an application for subdivision approval. Further, in Taylor, the Tribunal observes that P1.1.254 'appears to have no active or operational work to do'55 and it 'plays no real, active role, in the R-Codes' because:56 (a) The R-Codes as a whole are concerned not with applications for subdivision but for development approval; (b) Applications for development approval are assessed by first having regard to the DTC provisions and only if the DTC provisions are not met are the design principles relevant; (c) The DTC provisions for site area are concerned with development applications where the subdivisional process has already been completed and the resulting lot size is already known[.] 72 However, I accept P1.1.2 is of relevance on its own because it is identified as a consideration in OP 2.2 which I will address later.57 73 The R-Codes itself is, I accept, of some further utility in this case because of the concept plan which, to be clear, is not a development application. Whether the concept plan demonstrates that the proposed lots are capable of development in accordance with R50 requirements and, therefore, whether the lots in the proposed subdivision may be lawfully developed, is one factor which informs my decision.58 However, I bear in mind it is not within my role to exercise discretion, 54 At Pt D, cl 1.1. The decision in Taylor relates to the earlier 2021 version of the R-Codes, which numbered this clause cl 5.1.1, P1.2. However, the provision is effectively identical. 55 Tayor at [208]. 56 Taylor at [207]. Note: 'DTC' - refers to Deemed-to-comply criteria of the R-Codes. A fourth reason is no longer relevant as it identifies cl 2.5.3 of the 2021 version of the R-Codes which does not appear in the current R-Codes. 57 Commencing at [84]. 58 See OP 1.1 at cl 3.7. -- 19 of 44 -- [2026] WASAT 44 Page 20 or make a decision, as to any development application as this is not a matter before me in this proceeding. Issue for determination 74 The following issue, with three sub-issues, arises for determination by the Tribunal: 1. Should the proposed subdivision be approved, in the exercise of the Tribunal's planning discretion, having regard to: (a) Whether the proposed subdivision satisfies the variation criteria at cl 4.2.4 of OP 2.2 in relation to the minimum and average size of the proposed lots, which includes consideration of the design principles for R50 development under cl 1.1 of Pt D of the R-Codes, or if it does not whether, in the circumstances of this case, there is a cogent reason to depart from the policy. (b) Whether the proposed subdivision is consistent with orderly and proper planning. (c) Whether approval of the proposed subdivision would create an undesirable precedent. 75 Mr Wollinski, in his Statement of Issues, Facts and Contentions (SIFC), identifies the 'applicant's main issues'.59 These issues, in my view, go almost entirely to his concerns with how the WAPC made their original decision to refuse the proposed subdivision. The reporting and decision-making processes of the WAPC are not for me to investigate, or consider, in the context of a de novo hearing because I am required to consider the proposed subdivision afresh. At the hearing, Mr Wollinski, accepted this.60 76 Mr Wollinski also submits consideration of cl 3.7 of OP 1.1 relating to 'lawful development' should be a separate sub-issue.61 However, in my view, OP 1.1, including cl 3.7, is a consideration relevant to orderly and proper planning which I will address at sub-issue 1(b).62 59 Applicant's SIFC, paras 93 - 99, Exhibit 7. 60 ts 22, 23 February 2026. 61 ts 15, 23 February 2026. 62 Commencing at [136]. -- 20 of 44 -- [2026] WASAT 44 Page 21 77 I will now address sub-issues 1(a) to 1(c) in turn, before considering and determining the matter overall. Sub-issue 1(a) - Whether the proposed subdivision satisfies the variation criteria at cl 4.2.4 of OP 2.2 in relation to the minimum and average size of the proposed lots, which includes consideration of the design principles for R50 development under cl 1.1 of Pt D of the R-Codes, or if it does not whether, in the circumstances of this case, there is a cogent reason to depart from the policy 78 The parties agree that the proposed subdivision does not meet the minimum or average site area requirements of the R50 density code.63 The DTC requirements in the R-Codes, at Table D, provide minimum site area and average site area requirements. Table 1, below, illustrates the variations to the DTC requirements sought by the proposed subdivision.64 Table 1 - Variations to DTC site area requirements of the R-Codes R50 site area requirements Proposed subdivision Variation Minimum site area 160m2 Lot 1 - 105.04m2 Lot 2 - 103.1m2 Lot 3 - 103.43m2 Lot 1 - 34.35% Lot 2 - 35.56% Lot 3 - 35.36% Average site area 180m2 168.7m2 6.3% 79 Average site area is calculated taking into account the entire area of the subject land, whereas the minimum site area is 'the area of land occupied by the dwelling itself, together with all other areas whether contiguous or not, designated for the exclusive use of the occupants of that dwelling'.65 63 Respondent's SIFC, para 65, Exhibit 2 and Applicant's SIFC, para 65, Exhibit 7. 64 The data for Table 1 is set out in the Respondent's SIFC, para 65, Exhibit 2. This is accepted by the applicant (Applicant's SIFC, para 65, Exhibit 7) and identified in the Witness Statement of Jessica Birbeck, para 51, Exhibit 5. 65 R-Codes, cl 1.1, C1.1.2. Respondent's s 24 Bundle of Documents, page 322, Exhibit 3. Original emphasis. -- 21 of 44 -- [2026] WASAT 44 Page 22 80 It is uncontroversial that discretion exists for the WAPC, and therefore the Tribunal on review, to consider and approve the variations and the proposed subdivision.66 OP 2.2, at cl 4.2, addresses 'Lot sizes'. Variations to lot sizes are to be considered against the criteria in cl 4.2.4(a) and cl 4.2.4(b) of OP 2.2. Is cl 4.2.4(a) of OP 2.2 satisfied? 81 Notwithstanding the proposed subdivision seeks variations to both the minimum and average site areas of greater than 5%, Ms Birbeck's expert evidence is that it is necessary to consider whether the proposed subdivision may satisfy the relevant criteria.67 I accept that consideration of the proposed subdivision against the criteria in cl 4.2.4(a) may inform the exercise of discretion in this case. 82 Clause 4.2.4(a) addresses variations to minimum and average lot size up to 5% and provides seven criteria, as follows:68 [1] the proposal satisfies the relevant design principles of the R-Codes Volume 1 Part D, clause 1.1 Site Area. [2] the minimum lot size variation only applies to one lot in the subdivision. [3] the variation reduces the area of that one lot by no more than five per cent of the minimum lot size specified in R-Codes Volume 1 Table D or elsewhere in the R-Codes. [4] the variation in the area of that one lot reduces the average lot size of the overall subdivision by no more than five per cent of the average lot size specified in the R-Codes Volume 1 Table D or elsewhere in the R-Codes. [5] in considering lot size and frontage variations, the WAPC will give regard to the recommendations of the local government. [6] where a local government objects to a variation, the objection should be supported by reasons, with reference to the provisions in this policy. [7] where a local government objects to a variation and the WAPC is of the view the application should be supported, further consultation may be undertaken with the local government before the application is determined by the WAPC. 66 ts 149, 24 February 2026. 67 Witness Statement of Jessica Birbeck, para 54, Exhibit 5. 68 Respondent's s 24 Bundle, page 366, Exhibit 3. Numbering added. -- 22 of 44 -- [2026] WASAT 44 Page 23 83 The seventh criterion does not arise for consideration in the circumstances of this case. I will now consider the remaining six criteria of cl 4.2.4(a). 84 As to the first criterion, the R-Codes, at cl 1.1 of Pt D, provides three design principles and the proposed subdivision is required to satisfy the relevant criteria. Two of the design principles are not relevant, in my view, being P1.1.1 and P1.1.3, as I will explain. 85 Design Principle P1.1.1 is limited to consideration of 'development' and not applicable to an application for subdivision approval.69 Further, unlike P1.1.2 and P1.1.3, it is not directed at the WAPC as the decision-maker for subdivision in the present circumstances. 86 Design Principle P1.1.3 is also not relevant in this case because it is only applicable to the approval of strata lots, among other types of lots, in circumstances where there is an existing authorised grouped dwelling or multiple dwelling. There is no existing grouped or multiple dwelling on the subject land. 87 Design Principle P1.1.2 provides that the WAPC, in consultation with the local government, may approve a survey strata lot, among other forms of subdivision, of a lesser minimum and/or average site area than specified in Table D, provided that the proposed variation would be no more than 5% less in area than that specified in Table D and will:70 i. facilitate the protection of an environmental or heritage feature; ii. facilitate the retention of a significant element that contributes toward an existing streetscape worthy of retention; iii. facilitate the development of lots with separate and sufficient frontage to more than one public street; iv. overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature; v. allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed; or vi. achieve specific objectives of the local planning framework. 69 Consistent with the Explanatory Guidelines, which identifies P1.1.2 and P1.1.3 as relevant, see [70]. 70 Respondent's s 24 Bundle of Documents, page 322, Exhibit 3. Original emphasis. -- 23 of 44 -- [2026] WASAT 44 Page 24 88 Ms Birbeck's uncontested expert evidence provides a detailed assessment against P1.1.271 and she opines that the proposed subdivision 'would not satisfy any of the six criteria listed under design principle P1.1.2'.72 Considering this evidence, which I accept, I am satisfied, and I find, that P1.1.2 is not met. 89 In respect to the second criterion of cl 4.2.4(a), it is uncontroversial that the minimum lot size variation does not apply to just one lot in the proposed subdivision. Therefore, I find this criterion, is not met. 90 The third criterion, I find, is not met because the variation is sought to the minimum lot size for all three lots and, in any event, the variations sought significantly exceed 5%, ranging between 34.35% and 35.56%. 91 The fourth criterion, I find, is not met because the variation to the average lot size exceeds 5%, being 6.3%. 92 The fifth criterion, I find, is not met, having regard to the recommendation of the City to refuse the proposed subdivision due to concerns with the minimum and average lot area requirements and the width of the common property lot to be used for access.73 93 Similarly, considering the sixth criterion, the City has identified its concerns and supports these concerns with reasons which, in my view, are relevant to OP 2.2.74 Therefore, the proposed subdivision, I find, does not meet this criterion. 94 Considering the above, I am satisfied, and I find, that the proposed subdivision does not satisfy cl 4.2.4(a) of OP 2.2. Is cl 4.2.4(b) of OP 2.2 satisfied? 95 As the proposed subdivision involves a 6.3% variation to the average site area, cl 4.2.4(b) is relevant in this case. Clause 4.2.4(b) operates in addition to cl 4.2.4(a) to consider 'any average lot size variation greater than five percent'. 71 Witness Statement of Jessica Birbeck, para 58 - 66, Exhibit 5. 72 Witness Statement of Jessica Birbeck, para 57, Exhibit 5. 73 Respondent's s 24 Bundle, page 73, Exhibit 3. 74 Respondent's s 24 Bundle, page 73, Exhibit 3 and Respondent's Supplementary Bundle, page 1, Exhibit 4. -- 24 of 44 -- [2026] WASAT 44 Page 25 96 Clause 4.2.4(b) provides six criteria, as follows, and all need to be met:75 - a single residential coding of R10 to R35 applies to the land. … - the site is a corner lot with frontage to two different streets or any other lot with frontage to more than one dedicated street (excluding a primary (red), other regional (blue) or any other major road, including state and federal highways, with access restrictions). - all proposed lots comply with the minimum lot size and frontage requirements specified in the R-Codes Volume 1 Table D. - the width and frontage of the new lots will enable dwellings to have their primary frontage to the different streets. - crossovers and driveways to proposed lots are provided in accordance with Australian Standard (AS) 2890 and the R-Codes Volume 1. - any corner truncation, pedestrian access way, vehicle right of way or laneway widening is excluded from the calculation of the minimum lot size. 97 The sixth criterion of cl 4.2.4(b), I accept, is not relevant here, because the factors in that criterion do not arise at the subject land. 98 Ms Birbeck's uncontested expert evidence is that the proposed subdivision meets only one of the remaining five criteria, being the second criterion. She says, and I accept, that because the subject land has frontage to more than one dedicated street this criterion is satisfied.76 99 I accept Ms Birbeck's expert evidence that the proposed subdivision does not satisfy the remaining four criteria.77 As cl 4.2.4(b) requires all relevant criteria be met, I am satisfied, and I find, the proposed subdivision does not satisfy this clause. 100 It is therefore necessary to consider whether there is a cogent reason, in the circumstances of this case, to depart from OP 2.2. Before doing this, I will briefly outline the correct application of policy. 75 Respondent's s 24 Bundle, page 366, Exhibit 3. 76 Witness Statement of Jessica Birbeck, para 69, Exhibit 5. 77 Witness Statement of Jessica Birbeck, para 68, Exhibit 5. -- 25 of 44 -- [2026] WASAT 44 Page 26 The correct application of policy 101 The correct application of policy is well settled. His Honour, Barker J, observes in Clive Elliott Jennings and Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 (2002) 122 LGERA 433 (Clive Elliot Jennings):78 In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a "policy" and which is stated to be relevant to subdivision applications. In such cases, the document is not a "policy" given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a "policy", and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a "policy" is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application. Good public administration demands no less an approach. 102 Further, in relation to the exercise of discretion when considering an application for subdivision, Barker J observes:79 The range of considerations that may go to inform the discretion of the Commission as to whether or not a subdivision should be approved may be numerous, indeed[.] 103 In Taylor, the Tribunal also observes:80 Read as a whole, and in context, the R-Codes make very plain the preference for new lots created by subdivision to be not less than certain, stated, sizes. As a matter of orderly and proper planning, to give 'due regard' (as is required by s 138(2) of the PD Act) requires that, in the absence of sound planning policy or another cogent reason, subdivisional approval ought not to be granted which would create lots smaller than the stated sizes. 104 OP 2.2 is an operational policy of the WAPC and as such it would be unlawful for this policy to be inflexibly applied. However, I accept, the policy is to be given 'due regard'. 'Due regard' requires the 78 Clive Elliott Jennings at [24]. 79 Clive Elliot Jennings at [22]. 80 Taylor at [226]. -- 26 of 44 -- [2026] WASAT 44 Page 27 decision-maker give 'active and positive consideration' to a relevant policy.81 105 The R-Codes, since 2024, is a Planning Code made under Pt 3A of the PD Act and has the status of subsidiary legislation for the purpose of the Interpretation Act 1984 (WA).82 However, in the context of an application for subdivision in the circumstances of the present case, the R-Codes, in effect, are a guide to the WAPC (and the Tribunal on review) in decision-making on the appropriate size of proposed lots and do not operate to fetter discretion to approve lots of a lesser size than specified in the R-Codes. 106 I do not accept Mr Wollinski's submission that cl 2.2.2, at Pt A of the R-Codes, which addresses 'judging the merit of a proposal', is relevant here.83 In my view, cl 2.2.2 is directed at decision-making relevant to the purpose of the R-Codes which, as outlined at Pt A, cl 1.2, is to 'provide a comprehensive basis for the guidance and control of residential development throughout Western Australia'.84 'Residential development' is defined in the R-Codes to mean:85 development of permanent accommodation for people, and may include all dwellings, the residential component of mixed use development, and residential buildings proposing permanent accommodation. 107 'Residential development', in the context of this case, does not include subdivision.86 Mr Wollinski's reasons to depart from policy 108 Notwithstanding that the proposed subdivision does not meet the relevant provisions of OP 2.2, which includes consideration of the relevant design principle at Pt D, cl 1.1, of the R-Codes, Mr Wollinski submits there is justification to support approval and advances the following reasons:87 81 Harper Investments WA Pty Ltd and Presiding Member of Metro Inner-North Joint Development Assessment Panel [2023] WASAT 130 at [75]. 82 PD Act at s 32C(1). 83 Applicant's SIFC, paras 95, 132, 154 and 164 - 165. 84 Respondent's s 24 Bundle of Documents, page 202, Exhibit 3. Original emphasis. 85 Respondent's s 24 Bundle of Documents, page 331, Exhibit 3. Original emphasis. 86 Also see earlier at [60] - [61] and [71] and Taylor at [186] - [193] which deals with this consideration, albeit under the 2021 version of the R-Codes, however those observations remain relevant here. 87 Applicant's SIFC, page 1 and para 146, Exhibit 7. -- 27 of 44 -- [2026] WASAT 44 Page 28 (1) The subject land is constrained because it is narrow, 10 metres wide, which is restrictive for development, with only laneway access and this is a feature which should be considered a 'special or unusual limitation' under the R-Codes design principle P1.1.2 that justifies a variation to standard lot sizes. (2) The design is responsive because the layout is the product of extensive modelling with the City and traffic engineers and it provides functional vehicle access, with vehicles able to exit onto Burt Street in a forward gear, which improves the amenity of the laneway and maximises usable lot area. (3) The proposed subdivision is consistent with the locality because the density is identical to recent developments at No 128 Burt Street (No 128) and No 133 Burt Street (No 133) which have the same R50 coding. Further it is consistent with the LP Strategy's intent for increased density and urban renewal. Mr Wollinski also identifies the development at No 135 Burt Street (No 135) as reflecting a similar site layout and density.88 (4) The WAPC and the City have not demonstrated any material adverse impact on public, neighbour or occupant amenity that would arise from 'the specific non-compliances'. (5) Financial constraints of delivering infill development require the proposed three by two bedroom dwellings to be constructed. (6) The siting of neighbouring buildings and non-compliance with fire separation requirements under the National Construction Code. (7) Access to postal and waste services. (8) Addressing a shortage of housing with dwellings that are well located and fit for purpose. Do these reasons provide a cogent basis to depart from OP 2.2? 109 Before turning to consider Mr Wollinski's reasons, I observe that the policy objectives of OP 2.2, at cl 3, are as follows:89 3.1. To establish a consistent and coordinated approach to the creation of residential lots throughout Western Australia. 88 Applicant's SIFC, paras 76 and 119, Exhibit 7. 89 Respondent's s 24 Bundle of Documents, page 365, Exhibit 3. -- 28 of 44 -- [2026] WASAT 44 Page 29 3.2. To adopt criteria for residential lots that will ensure each lot has a suitable level of amenity, services and access. 3.3. To facilitate the supply of residential lots in regular shapes and size ranges that reflect the statutory provisions of local planning schemes - including the R-Codes, the availability of reticulated sewerage, electricity and water and the need for frontage to public streets for access. 110 I will now consider the applicant's reasons, and whether these, individually or collectively, constitute a cogent reason to depart from OP 2.2,90 bearing in mind the policy objectives. 111 First, I accept the subject land has a frontage of 10.06 metres. However, Ms Birbeck's uncontested expert evidence is that this is not a special or unique limitation.91 It is not, I observe, unique in the locality because six of the 13 lots on the southern side of Burt Street, including the subject land, have frontages of approximately 10 metres and similar access arrangements from the rear laneway. Another seven lots in the locality also have similar frontages and access arrangements.92 Therefore, I do not accept the frontage of the subject land, together with considerations of access, is a cogent reason to depart from OP 2.2 because it is not a special or unique limitation for lots in the locality. 112 Ms Birbeck also addresses the size of the subject land, being 506m2. She says this 'constrains the ability to develop the [subject] land for more dwellings than permitted under the assigned density'.93 Under cross-examination she explains this means 'you can't fit as many dwellings as what you want, is an inherent constraint' of the subject land.94 I agree and, it follows, the size of the subject land, does not constitute a special or unique limitation. This factor, therefore, is not a basis to depart from OP 2.2. 113 Second, the proposed subdivision, does not, on the evidence before me, demonstrate a suitable solution to vehicle access. Mr Wollinski relies on swept path diagrams to demonstrate access for vehicles to car parking shown on the concept plan.95 He submits these diagrams were prepared by a traffic engineer. However, at the hearing, 90 Which includes consideration of cl 1.1 of Pt D of the R-Codes. 91 Witness Statement of Jessica Birbeck, para 64, Exhibit 5 and ts 79, 23 February 2026. 92 The locality includes the southern side of Moran Street and the northern side of Piesse Street. 93 Witness Statement of Jessica Birbeck, para 64, Exhibit 5. 94 ts 86, 23 February 2026. 95 Respondent's s 24 Bundle of Documents, pages 28 - 29, Exhibit 3. -- 29 of 44 -- [2026] WASAT 44 Page 30 Mr Wollinski did not adduce traffic engineering expert witness evidence. 114 Ms Birbeck, who is not a traffic engineer, but as a town planner, I accept, can interpret the swept path diagrams and the concept plan, asserts that 'the proposed carports/vehicle parking spaces do not provide sufficient length to accommodate a vehicle within the lot boundaries' and approximately 660 millimetres of the car bay extends into the common property.96 She also says that the swept path diagrams show that vehicle manoeuvring will conflict with hot water units, rainwater tanks and landscaped areas and observes that the carport structures are proposed within the common property and that no swept path diagram is provided for Unit 3.97 I accept the swept path diagrams contain these deficiencies, which considering the evidence of Ms Birbeck, are, in my view, significant. 115 As to Mr Wollinski's submission that being able to exit the subject land in a forward gear is a positive planning outcome, Ms Birbeck accepts this. However, she took this into account when considering the manoeuvring shown and when she looked at whether vehicle movements could be accommodated within the subject land, she found they could not.98 116 Further, the evidence before me is that the driveway, shown within the common property lot, does not comply with the DTC requirements of the R-Codes as it has a width of 2.4 metres in lieu of 3 metres.99 117 Given the evidence above, I do not accept that the proposed subdivision demonstrates that suitable access and car parking arrangements are achieved. Therefore, this cannot form a cogent basis to depart from OP 2.2, as it does not meet the objective 3.2 of cl 3 in respect to amenity and access. I also observe that 'access to each lot' is a relevant consideration at reg 21(d) of the PD Regulations. 118 Third, as to other developments at No 128 and No 133, which are within the locality, these do not form a cogent reason to depart from the policy, as I will explain. 119 On the evidence before me No 128 and No 133 were developed under different statutory planning frameworks. Significantly, they also 96 Witness Statement of Jessica Birbeck, Annexure JB5, page 46, Exhibit 5. 97 Ibid. 98 ts 91, 23 February 2026. 99 Witness Statement of Jessica Birbeck, para 68, Exhibit 5. -- 30 of 44 -- [2026] WASAT 44 Page 31 each have a 20 metre lot frontage. Ms Birbeck opines, '[this] is much larger than the 10 [metre] frontage of the subject land, and enables a single consolidated vehicle access (resulting in a greater site area for the dwellings)'.100 120 No 128 contains six grouped dwellings and was approved by the City in 1994 (32 years ago) under a former town planning scheme which classified the development as 'flats' and each has a single bedroom.101 Ms Birbeck asserts that in approving the strata plan for No 128, the WAPC 'would have given regard to the approved development'.102 As there is no approved development for the subject land, this circumstance does not apply here. Further, given that No 128 was approved 32 years ago under a different town planning scheme, I do not accept Mr Wollinski's submission that it is a recent development which reflects the current R50 density requirements. 121 No 133, which contains six grouped dwellings, is not strata titled and is owned by the DoC. Ms Birbeck's uncontested expert evidence, which I accept, is that approval was granted under a separate statutory process which did not require compliance with the applicable local planning scheme because the DoC was the responsible approval authority under their 'Public Works Authority'.103 Given this, I do not accept No 133 reflects the current statutory planning framework and, as it is not strata titled, it is also of limited relevance, in my view, to the determination of this case. 122 As mentioned, Mr Wollinski submits No 135, which contains four grouped dwellings,104 with a single central vehicle accessway, is also relevant.105 The evidence before me is that the strata plan for this development was approved in 1998, subsequent to development approval granted by the City.106 This strata plan, approved 28 years ago and, like No 128, was granted under a former town planning scheme. While, like No 128 and No 133, the development at No 135 is on a larger, 1012m2, lot with a 20 metre frontage, it only contains four grouped dwellings. Considering these factors, No 135 can be distinguished from the proposed subdivision. 100 Witness Statement of Jessica Birbeck, para 65, Exhibit 5. 101 Exhibit 9, page 8. This page is headed '-398-'. 102 ts 135, 24 February 2025. 103 ts 108, 24 February 2025. 104 Witness Statement of Jessica Birbeck, paras 20 ii and 22 iii, Exhibit 5. 105 Applicant's SIFC, paras 76 and 119, Exhibit 7. 106 Exhibit 9, pages 1 - 7. The approval date of this development is not entirely clear; however, it appears this occurred in 1996 or 1997. -- 31 of 44 -- [2026] WASAT 44 Page 32 123 Further, the present case is also plainly distinguishable from the circumstances in Taylor which involved the subdivision of a lot to complete a pattern of subdivision consistent with all adjoining lots and which did not give rise to the possibility of an adverse planning precedent in the locality.107 124 As to Mr Wollinski's submission that the proposed subdivision is consistent with the LP Strategy, this document was endorsed by the WAPC on 9 July 2013,108 almost 13 years ago. More recently, on 31 October 2023, LPS 2 was gazetted. LPS 2, therefore, provides a contemporary statutory planning framework for the City. Ms Birbeck argues, and given the timelines outlined above, I accept, 'the LP Strategy has been implemented for this precinct through the range of zoning changes and density increases through the recent gazettal of LPS 2'.109 125 Considering the above, I do not accept that the existing developments at No 128, No 133 and No 135 or the LP Strategy provide a cogent reason to depart from OP 2.2. 126 Fourthly, as to Mr Wollinski's submission that the respondent or the City has not demonstrated any adverse amenity impact that arise out of 'the specific non-compliances', I do not accept this forms a cogent reason to depart from OP 2.2. This is because, in my view, there is no onus on the WAPC or the City, who is not a party in this matter, to do so. 127 As the Tribunal110 observes in Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 (Sharon Property):111 … while there is no onus in review proceedings, as a very general proposition, it is for the applicant to demonstrate that the town planning impacts that arise from a proposed development are acceptable having regard to the applicable planning framework. This is in order to persuade the Tribunal that the correct and preferable decision is to approve a proposed development in circumstances where it is the proponent wishing to change the status quo. 107 See Taylor at [26] and Taylor and Western Australian Planning Commission [2023] WASAT 16 (S) at [89], [101] and [120]. 108 Respondent's s 24 Bundle, page 152, Exhibit 3 and Witness Statement of Jessica Birbeck, para 31, Exhibit 5. 109 Witness Statement of Jessica Birbeck, para 66, Exhibit 5. 110 SM Willey and SSM Jordan. 111 Sharon Property at [263]. -- 32 of 44 -- [2026] WASAT 44 Page 33 128 While Sharon Property relates to a development application and not to an application for subdivision, there is no reason, in my view, why the same principle does not apply here. 129 Even if I am wrong about this, there is evidence before me, which I accept, that demonstrates the proposed subdivision will not provide an outcome consistent with the existing amenity of the area or suitable access. As identified,112 this includes deficiencies in access and car parking. It also includes certain aspects of the concept plan which, on the evidence before me, indicates the proposed subdivision may facilitate an adverse streetscape impact and a lack of private open space. 130 These factors lead me to conclude that the proposed subdivision, if approved, will lead to a negative impact for future occupants and the local community. 131 Fifth, as to the financial constraints of delivering infill development, the evidence of Ms Birbeck is that this factor does not arise as a relevant consideration.113 The difficulty for Mr Wollinski, is that even if it was relevant, which I accept it is not, there is no evidence before me to provide support for his submission. 132 Sixth, as to the siting and proximity of neighbouring dwellings, Mr Wollinski adduces no evidence to provide a basis for this submission. Ms Birbeck's uncontested evidence, which I accept, is that this consideration does not generally prevent redevelopment of a site because it is addressed as a building code/building permit matter.114 133 Seventh, access to postal and waste services do not provide a cogent reason to depart from OP 2.2 in this case considering the context of the subject land. There is no evidence before me which demonstrates any insurmountable difficulty gaining access to these services. The expert evidence of Ms Birbeck, which I accept, is that a pedestrian access leg could facilitate rubbish collection and postal services from the street.115 134 Eighth, as to addressing a housing shortage, the expert evidence of Ms Birbeck is that when considering this factor, it is necessary to consider what the outcomes are of each particular subdivision or 112 At [114] - [117]. 113 ts 92, 23 February 2026. 114 Witness Statement of Jessica Birbeck, para 89, Exhibit 5. 115 Witness Statement of Jessica Birbeck, para 89 b), Exhibit 5. -- 33 of 44 -- [2026] WASAT 44 Page 34 development.116 I agree. The proposed subdivision, when considered against the planning framework, relevantly including objective 3.3 of OP 2.2 and LPS 2 which, in my view, is a contemporary planning scheme,117 results in a planning outcome inconsistent with the anticipated residential density under that scheme for this locality. Therefore, this factor does not provide a cogent reason to depart from the policy. There is no cogent reason to depart from OP 2.2 135 Having considered Mr Wollinski's reasons and submissions, individually and collectively, against the evidence before me, I am satisfied, and I find, for the reasons outlined above, there is no cogent reason to depart from OP 2.2. Sub-issue 1(b) - Whether the proposed subdivision is consistent with orderly and proper planning 136 In considering this issue, the WAPC submits regard should be had to: (a) the R50 density code designated under LPS 2; (b) the LP Strategy; (c) OP 1.1; (d) DCP 1.3;118 (e) Parts C and D of the R-Codes; and (f) the concept plan, in the context of the planning framework outlined in (a) to (e) above. 137 Mr Wollinski, on the other hand, submits that the 'WAPC's legitimate concern about future development can be, and should have been, addressed through conditional approval' of the proposed subdivision.119 He further submits that this is what is envisioned by OP 1.1 at cl 3.7.3 and that a condition requiring development approval to be obtained prior to the issue of titles would:120 116 ts 92, 23 February 2026. 117 Gazetted 31 October 2023. 118 Clause 3.3.4 is identified as relevant, ts 42, 23 February 2026. 119 Applicant's SIFC, page 1, Exhibit 7. 120 Ibid. -- 34 of 44 -- [2026] WASAT 44 Page 35 (a) safeguard the WAPC's role in ensuring lots are capable of development; and (b) respect the proper role of the City as the decision maker for a development application. 138 Related to this submission, I will also consider, in the circumstances of this case, whether s 164A of the PD Act should be engaged.121 139 My findings to this sub-issue will also necessarily be informed by my findings to sub-issue 1(a) because the relevant planning framework is a consideration that arises in the context of orderly and proper planning. Orderly and proper planning 140 Her Honour Pritchard J observes in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 (Marshall), at [178], that the phrase 'orderly and proper planning' is used extensively within the planning context, as a touchstone for the exercise of discretion by decision-makers. However, it is a term that is not defined in any Western Australian legislation. Pritchard J explains:122 … The ordinary meaning of the word 'proper' includes 'suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right'. The ordinary meaning of the word 'orderly' includes 'characterised by or observant of order, rule, or discipline'. In other words, to be orderly and proper, the exercise of a discretion within the planning context should be conducted in an orderly way - that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious (footnotes omitted). 141 When considering the exercise of discretion, Pritchard J continues:123 While the exercise of discretion will involve a judgment about what is suitable, appropriate, or apt or correct in a particular case, that judgment must (if it is to be 'orderly') be an objective one. If the exercise of discretion is to be an orderly one, the planning principles identified as relevant to an application should not be lightly departed from without the demonstration of a sound basis for doing so, which basis is itself 121 Identified earlier at [63] - [64]. 122 Marshall at [179]. Footnotes omitted. 123 Marshall at [182]. -- 35 of 44 -- [2026] WASAT 44 Page 36 grounded in planning law or principle. A broad range of considerations may be relevant in that context (footnotes omitted). Is the proposed subdivision consistent with orderly and proper planning? 142 The WAPC contends that the minimum site area requirements should not be lightly departed from without the demonstration of a sound basis for doing so.124 143 This submission, I observe, largely reflects the Tribunal's observations in Taylor, to which I referred earlier at [103]. 144 The WAPC submits the concept plan should be given regard when considering whether the proposed subdivision is consistent with orderly and proper planning as it indicates the likely future development outcome.125 145 Relevantly, cl 3.7.2 of OP 1.1, provides, in part: Lots that cannot be developed in accordance with relevant statutory requirements will not be approved. 146 In his application, Mr Wollinski relies on the concept plan to illustrate the development that it 'will facilitate'.126 He also accepts the WAPC (and therefore the Tribunal on review) has a responsibility, under OP 1.1 at cl 3.7, to consider whether proposed lots are capable of lawful development.127 147 Notwithstanding that the lot sizes do not meet the minimum or average lot sizes stated in the R-Codes, and my findings to sub-issue 1(a), I will consider the concept plan to determine if it demonstrates that the proposed lots can be developed in accordance with the relevant statutory requirements and, therefore, may be capable of lawful development. I also bear in mind, it is not for me to consider alternative 'hypothetical' concept plan scenarios or whether modifications may be made to the current concept plan, as these are not in evidence before me.128 148 Ms Birbeck's uncontested expert evidence includes an assessment of the concept plan against the relevant DTC criteria and design principles of the R-Codes for the R50 density code applicable to the 124 Respondent's SIFC, para 74, Exhibit 2. 125 Respondent's SIFC, para 80, Exhibit 2. 126 Respondent's s 24 Bundle of Documents, page 35, Exhibit 3. 127 Applicant's SIFC, para 219, Exhibit 7. 128 ts 117-118, 24 February 2026. -- 36 of 44 -- [2026] WASAT 44 Page 37 subject land.129 Her evidence, which I accept, in summary, is that the concept plan would not meet the R-Codes Pt C design principles, as follows: (a) Clause 1.1. Private open space - design principles P1.1.1 and P1.1.2, as no private open space is provided. (b) Clause 1.2 Trees and landscaping - P1.2.2, as no trees are provided. (c) Clause 2.1 Size and layout of dwellings - P2.1.5, as no storage is provided. (d) Clause 2.3 Parking - P2.3.2, as adequate on site parking has not been provided. (e) Clause 3.1 Site cover - P3.1.1, as the site cover restricts provision of outdoor living areas and landscaping and deep soil areas on each lot and also contributes to building bulk on the neighbouring eastern lot. (f) Clause 3.6 - Streetscape P3.6.1, P3.6.2 and P3.6.4, as blank walls of the façades face the street, the building design does not address the street and there is no visual connectivity between the dwelling and the street or passive surveillance of the street. 149 I also have regard for the City's advice on the concept plan which is, in my view, relevant when considering orderly and proper planning in respect to the proposed subdivision.130 This advice indicates the concept plan does not provide an acceptable level of amenity and access for each of the proposed lots and would compromise a range of factors including privacy, landscaping, private open space and solar access, manoeuvrability and turning circles.131 150 Considering the above evidence before me, which I accept, I am satisfied, and I find, the concept plan fails to demonstrate the lots can be developed in accordance with relevant R50 requirements of the R-Codes and, therefore, that lots in the proposed subdivision are capable of lawful development. 129 Witness Statement of Jessica Birbeck, Attachment JB5, Exhibit 5. 130 See cl 4.1 of OP 1.1. 131 Respondent's Supplementary s 24 Bundle of Documents, page 1, Exhibit 4. -- 37 of 44 -- [2026] WASAT 44 Page 38 Is integration of subdivision and development approvals a remedy in this case? 151 As mentioned, the power to require integration of subdivision and development approvals is found in s 164A of the PD Act and states, in part: (1) This section applies if, on an application for subdivision approval or development approval, the Commission or responsible authority forms the opinion that the integration of subdivision and development approvals or multiple subdivision or development approvals is necessary or desirable - (a) due to the size of the lots and potential impact on the amenity of the locality; or (b) for other reasons associated with the achievement of orderly and proper planning, and the preservation of the amenity, of the locality. … 152 Further, OP 1.1, at cl 3.7.3, provides guidance on the integration of subdivision and development, as follows: Residential lots of less than 260m2 in size and/or irregular configuration may need to demonstrate whether the site can accommodate a dwelling, through a development application and/or building plans being lodged with the local government. The WAPC may, where appropriate, impose conditions of approval relating to obtaining and implementing development approvals required to integrate subdivision and development. 153 Mr Wollinski submits the 'WAPC's legitimate concern about future development' can be addressed through conditional approval of the proposed subdivision because, he submits, this is what is envisaged by OP 1.1, cl 3.7.3.132 He asks the Tribunal to approve the proposed subdivision and '[i]nclude a condition requiring development approval prior to strata titling, ensuring proper integration of subdivision and development processes'.133 154 The expert evidence of Ms Birbeck is that the imposition of a condition requiring development approval to be obtained may be appropriate in circumstances where an applicant has demonstrated that the proposed lots are capable of lawful development through a concept 132 Applicant's SIFC, page 1, Exhibit 7. 133 Applicant's SIFC, para 272, Exhibit 7. -- 38 of 44 -- [2026] WASAT 44 Page 39 plan.134 Here, this means demonstrating that lots in the proposed subdivision can be developed in accordance with R50 requirements. 155 On the evidence before me, I have found the concept plan fails to do this.135 Therefore, it follows, that it would be inappropriate to grant approval for the proposed subdivision subject to a condition requiring development approval to be obtained. To do so, in my view, would be contrary to orderly and proper planning. 156 Further, where a subdivision proposal does not meet the requirements of the planning framework and where there is no cogent reason to depart from the relevant policy, which, considering my earlier findings to sub-issue 1(a), is the case here, it is also plainly contrary to orderly and proper planning to grant approval for the proposed subdivision conditional on the applicant obtaining a development approval. 157 Therefore, I am satisfied, and I find, there is no basis for s 164A of the PD Act, which can require the integration of subdivision and development approvals, to be engaged in the circumstances of this case. Approval is contrary to orderly and proper planning 158 Considering the above, I am satisfied, and I find, approval of the proposed subdivision would be contrary to orderly and proper planning for three related reasons. 159 First, considering my findings to sub-issue 1(a), I found that the proposed subdivision does not meet the requirements of OP 2.2 at cl 4.2.4, which included consideration of a relevant design principle of the R-Codes, and that there is no cogent reason to depart from the policy. 160 Second, the concept plan fails to demonstrate that the proposed lots can be developed in accordance with the relevant statutory planning requirements, being the R50 requirements of the R-Codes, and, therefore, that the lots in the proposed subdivision would be capable of lawful development. 161 Third, given reasons one and two, it is inappropriate to exercise discretion to approve the proposed subdivision on the basis of imposing a condition requiring that development approval be obtained. 134 ts 98 - 99, 23 February 2026. 135 See [150]. -- 39 of 44 -- [2026] WASAT 44 Page 40 Sub-issue 1(c) - Whether approval of the proposed subdivision would create an undesirable precedent 162 The established test when considering adverse, or undesirable, precedent is found in Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls) and has two limbs which need to be satisfied:136 (1) That the proposed development or subdivision is not in itself unobjectionable; and (2) That there is more than a mere chance or possibility that there may be later undistinguishable applications. 163 In Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170, cited in Nicholls at [72], the question of undesirable precedent is accepted as a valid planning consideration but there has been a reluctance to place great importance on it as an argument. To summarise, undesirable precedent will not defeat, on its own, a subdivision of merit, but where 'there is a strong code and standard and there is no compelling reason why subdivision should proceed, the precedent argument provides a further rationale for refusing subdivision'. 164 The WAPC contends that approval of the proposed subdivision would establish an undesirable precedent because the proposed subdivision is itself objectionable and the locality contains 12 sites that are undistinguishable from the proposed subdivision.137 165 Mr Wollinski submits, the proposed subdivision has 'justifiable merits' and it is 'distinguishable' and that, '[t]he possibility of future applications cannot justify refusing a meritorious proposal'.138 Will the proposed subdivision create an undesirable precedent? 166 Ms Birbeck considers the two limbs of the test in Nicholls and her evidence in relation to the first limb, is that the proposed subdivision itself is objectionable when considered against the relevant planning framework.139 Given my earlier findings to sub-issues 1(a) and 1(b), I agree that the first limb of the test in Nicholls is satisfied. 136 Nicholls at [74]. 137 Respondent's SIFC, paras 86 and 89, Exhibit 3. 138 Applicant's SIFC, para 254, Exhibit 7. 139 Witness Statement of Jessica Birbeck, para 85, Exhibit 5. -- 40 of 44 -- [2026] WASAT 44 Page 41 167 As to the second limb, Ms Birbeck sets out that her assessment is informed by a visit to the locality and a GIS mapping review.140 She says she considered 50 properties in the locality and identifies 12 properties having an undistinguishable Residential R50 zoning, lot area and lot frontage to that of the subject land.141 168 However, Ms Birbeck identifies that two of the properties, Lot 50 Moran Street and adjoining Lot 51 Moran Street, are developed with four grouped dwellings which straddle the boundaries of the two lots.142 Ms Birbeck opines, based on the age of these dwellings, the likelihood of redevelopment is low and, fairly in my view, she excludes them from her precedent assessment.143 169 Ms Birbeck also considers sites in the locality identified by Mr Wollinski, which he submits are distinguishable because of the proximity of neighbouring buildings and trees in the verge. After considering these factors, Ms Birbeck asserts that redevelopment of these sites would not be limited and they are, therefore, undistinguishable from the subject land because:144 (a) the location of the street trees would not necessarily prevent access to those sites; (b) access is available from the rear laneway and pedestrian access can be provided to the street for rubbish collection and postal services; (c) there is an ability for the City to consider removal of trees in the verge; and (d) the proximity of neighbouring dwellings to a shared side boundary does not generally prevent redevelopment of a site as it is a building code/building permit matter. 170 Considering the expert evidence above, which I accept, there are 10 other properties in the locality that could give rise to more than a mere chance or possibility of later undistinguishable subdivision applications. This, in my view, satisfies the second limb of the test in Nicholls. 140 Witness Statement of Jessica Birbeck, para 86, Exhibit 5. 141 Ibid. 142 Witness Statement of Jessica Birbeck, para 86, Exhibit 5. 143 Witness Statement of Jessica Birbeck, para 87, Exhibit 5. 144 Witness Statement of Jessica Birbeck, para 89, Exhibit 5. -- 41 of 44 -- [2026] WASAT 44 Page 42 Approval will create an undesirable precedent 171 As the two limbs of the test for adverse planning precedent set out in Nicholls are met, I am satisfied, and I find, that the proposed subdivision, if approved, would create an adverse precedent. 172 Further, considering my findings to sub-issues 1(a) and 1(b) which identify no compelling reason for approval, I am satisfied, and I find, adverse precedent provides further rationale for refusal of the proposed subdivision. Should the proposed subdivision be approved, in the exercise of the Tribunal's planning discretion? 173 I return now to consider and determine the ultimate issue before me. 174 Having considered the relevant planning framework, including reg 21 of the PD Regulations, and considering and weighing my findings to sub-issues 1(a), 1(b) and 1(c), and the largely unfettered discretion afforded me as the decision-maker in this case, I conclude the 'correct and preferable decision at the time of the decision upon the review'145 is to dismiss the application for review and affirm the decision of the WAPC to refuse the proposed subdivision. 175 This is because my findings to sub-issues 1(a), 1(b) and 1(c) do not support approval of the proposed subdivision and, considering all the circumstances of this case, there is no cogent basis upon which planning discretion should be exercised to approve the proposed subdivision. Conclusion 176 The proposed subdivision seeks approval to create three survey strata lots and one common property lot at the subject land. 177 I accept approval of the proposed subdivision is possible, even in circumstances where it conflicts with the minimum and average lot size requirements for R50 density specified in the R-Codes and the policy provisions of cl 4.2.4 of OP 2.2 and cl 3.7.2 of OP 1.1. 178 While approval is possible, the proposed subdivision fails when considered on its merits. The justifications advanced by Mr Wollinski, when considered individually or collectively, in my view, do not rise to 145 Under s 27(2) of the SAT Act. -- 42 of 44 -- [2026] WASAT 44 Page 43 provide a cogent reason to depart from the planning framework, including the policy provisions of OP 2.2 and OP 1.1. 179 I also found the concept plan fails to demonstrate that the lots in the proposed subdivision are capable of lawful development in accordance with the relevant R50 requirements, a consideration under OP 1.1. 180 As a result, I found approval of the proposed subdivision would be contrary to orderly and proper planning. Further, applying the test in Nicholls, I found approval would create an adverse planning precedent and that this provides further rationale to support refusal. 181 Therefore, notwithstanding the discretion afforded me to approve the proposed subdivision, I have concluded the 'correct and preferable decision at the time of the decision upon the review',146 for the reasons I have outlined, is to dismiss the application for review and affirm the decision of the WAPC to refuse the proposed subdivision. 182 For these reasons, the Tribunal makes the following orders: Orders The Tribunal orders: 1. The application for review is dismissed. 2. The decision of the respondent is affirmed. 146 Under s 27(2) of the SAT Act. -- 43 of 44 -- [2026] WASAT 44 Page 44 I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MR R Povey, MEMBER 1 MAY 2026 -- 44 of 44 --