Allsure Pty Ltd and Western Australian Planning Commission

Case •

[2006] WASAT 145

•

7 JUNE 2006

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   ALLSURE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 145

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   27 APRIL 2006 (WRITTEN SUBMISSIONS FILED ON 19 MAY 2006 AND 24 MAY 2006)

DELIVERED          :   7 JUNE 2006

FILE NO/S:   DR 687 of 2005

BETWEEN:   ALLSURE PTY LTD

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning ­ Subdivision ­ Six industrial lots ­ Application for review of condition affixed to granting of approval of plan of subdivision ­ Condition states that part of land required for proposed highway bypass be shown as a separate lot and that the balance of four proposed lots and proposed internal cul­de­sac be redistributed and/or relocated ­ Condition reflects refusal of application ­ Proceedings are in substance for review of refusal - Whether subdivision application should be approved ­ Subdivision consistent with development approval for business park ­ Planning control area declared over land required for proposed highway bypass including 40 metre wide part of site ­ Whether development approval statutorily set aside by declaration ­ Whether "development was lawfully being carried out" immediately before declaration ­ Whether preparation and submission of plan of road intersection required by condition of development approval constitutes "carrying out" of development ­ Whether development approval for lots in planning control area unlikely to be obtained ­ Sustainable use and development of land ­ Attribution of weight to highway bypass proposal in planning assessment ­ Degree of certainty ­ Degree of imminence ­ Imminence in context of major road proposal ­ Contrary to orderly and proper planning to allow subdivision where proposed lots are unlikely to be capable of development ­ Words and phrases: "development … being carried out"

Legislation:

Interpretation Act 1984 (WA), s 36
Peel Region Scheme
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4, s 17, Sch 1
Planning and Development Act 2005 (WA), s 3(1)(c), s 4(1), s 115, s 115(1), s 115(3), s 116, s 116(1), s 116(1)(b)(iii), s 118, s 118(a), s 118(b), s 112(1), s 211(2), s 220, s 251(1), s 251(2), s 253(2), Pt 7, Sch 6
Shire of Waroona Town Planning Scheme
State Administrative Tribunal Act 2004 (WA), s 17(1), s 17(3), s 27(2)
Town Planning and Development Act 1928 (WA), s 18(2a), s 26(1)(a)(i), s 26(1)(a)(ii)

Western Australian Planning Commission Act 1985 (WA), s 37B

Result:

Decision of respondent set aside and decision refusing subdivision approval substituted

Category:    B

Representation:

Counsel:

Applicant:     Mr CA Slarke

Respondent:     Ms LA Eddy

Solicitors:

Applicant:     McLeods

Respondent:     State Solicitor's Office

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

Ben-Menashe v Ku-Ring-Gai Municipal Council (2001) 115 LGERA 181

Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175

Koltasz Smith and Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266

Lakes Action Group Association (Incorporated) and Shire of Northam [2005] WASAT 8

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Nicholls and Western Australian Planning Commission [2005] WASAT 40

Randall and Town of Vincent [2005] WASAT 129

Swadling v Sutherland Shire Council (1994) 82 LGERA 431

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

Case(s) also cited:

Claude Neon Ltd v City of Perth [1983] WAR 147

Daniele v Shire of Swan (1998) 20 WAR 164

Merri Creek Quarry Pty Ltd v Foletta (1951) 82 CLR 347

Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of the Tribunal's decision

  1. Allsure Pty Ltd sought review of a condition imposed by the Western Australian Planning Commission on its purported granting of approval to a plan of subdivision.  The condition required that a 40 metre­wide strip of the land, which comprised the majority of four of the six proposed lots, was to be shown as a separate lot and the balance of the four affected lots was to be redistributed and/or relocated.  The 40 metre­wide strip formed part of a proposed highway bypass.

  2. The Tribunal considered that the condition required a significantly different subdivision to that which was shown on the subdivision plan for which approval was sought, and reflected a refusal of the plan.  The Tribunal, therefore, proceeded to determine for itself whether the subdivision plan should be approved.

  3. The Tribunal determined that subdivision approval should be refused.  A development approval, which was consistent with the subdivision plan, was statutorily set aside in relation to the 40 metre­wide strip when that area was included in a declared regional planning control area.  The Tribunal determined that it was unlikely that a further development approval would be granted for development of that land.  It was contrary to orderly and proper planning to approve a subdivision where the proposed lots were unlikely to be capable of development, because required development approval was unlikely to be obtained.

Introduction

  1. These proceedings involve an application brought by Allsure Pty Ltd (Allsure) pursuant to s 26(1)(a)(ii) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act) s 251(2)) for review of a condition affixed by the Western Australian Planning Commission (Commission) to its purported granting of approval of a plan of subdivision. The plan shows the subdivision of land known as Lot 40 South Western Highway, Waroona (site) into six industrial lots, an access road off South Western Highway terminating in a cul­de­sac and a stormwater basin.

  2. The site has an area of approximately 2.7 hectares.  It is bounded by the Perth­Bunbury railway to the west, South Western Highway to the east and developed land to the north and south.  The site is cleared, but not otherwise developed.

  3. Proposed Lots 1 and 4 have frontages to South Western Highway and areas of 4160 square metres and 8050 square metres, respectively.  Proposed Lots 2, 3, 5 and 6 are located within the western part of the site adjacent to the Perth­Bunbury railway.  These proposed lots have a width of 50.0 metres from the railway boundary and have areas of 2240 square metres, 2090 square metres, 2050 square metres and 3000 square metres, respectively.

  4. The site is zoned "Industrial" under the Peel Region Scheme (PRS) and "Urban 7 ­ Industrial" under the Shire of Waroona Town Planning Scheme No 7 (TPS 7).  TPS 7 requires a minimum lot size of 2000 square metres.

  5. The Shire of Waroona (Shire) supports the application subject to conditions.  Main Roads WA (Main Roads) recommends that the part of the site required for the proposed South Western Highway Waroona Bypass (Waroona Bypass) "be acquired for the creation of the proposed road reserve".  None of the other referral agencies raise any objection to the application subject to conditions being imposed.

  6. The Commission's professional staff recommended that it decide to endorse a deposited plan in accordance with the submitted plan of subdivision once 15 conditions have been fulfilled.  It appears that, at its meeting on 22 November 2005, the Commission's Statutory Planning Committee accepted this recommendation, but purported to impose the following additional condition as condition 4:

    "The land required for the proposed Waroona Bypass, as shown on the attached plan dated 22 November 2005, being shown as a separate lot on the Deposited Plan for future acquisition by Main Roads WA, and the balance of proposed Lots 2, 3, 5, 6, and the cul­de­sac being redistributed and/or relocated in order to ensure a suitable industrial lot configuration to the satisfaction of the Western Australian Planning Commission.  (Main Roads WA) (DPI)."

  7. The land required for the proposed Waroona Bypass, as shown on the plan referred to in condition 4, comprises an approximately 40 metre­wide strip adjoining the railway boundary.  According to the uncontested evidence of Mr John Pride, Senior Project Planner for the PRS, the effect of condition 4 is to remove over half of the area of Lot 2, leaving an area of 1040 square metres, and most of the areas of Lots 3, 5 and 6, leaving residual portions of 475 square metres, 305 square metres and 610 square metres, respectively.

  8. Condition 4 was included among 16 conditions in the Commission's formal notification of its decision to Allsure dated 1 December 2005.  Allsure subsequently commenced these proceedings for review of condition 4.

Scope of the proceedings

  1. During the hearing, I asked counsel for the parties whether condition 4, in substance and effect, reflects either a failure to determine the application for approval of the subdivision or a refusal of the application, and whether, in either case, it is open to and necessary for the Tribunal to determine the subdivision application for itself.  While neither Mr CA Slarke, counsel for Allsure, nor Ms LA Eddy, counsel for the Commission, conceded that this was the case, they did not argue against these propositions at the hearing.

  2. Ben-Menashe v Ku-Ring-Gai Municipal Council (2001) 115 LGERA 181 involved a preliminary issue raised by the respondent Council in an appeal against the imposition of a condition on the grant of development consent for a subdivision of land. The development application proposed Torrens Title subdivision. The Council purported to grant approval subject to a condition that the subdivision be by strata title. The preliminary issue was whether the New South Wales planning legislation permitted the imposition of this condition. Ben­Menashe relied on a decision of Pearlman CJ LEC in Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175. That case involved an application to clear a defined area of land of native vegetation. The application was granted by the Minister subject to a number of conditions, one of which was that a completely separate defined area be cleared, rather than the area for which the application sought approval. Pearlman CJ found that the development for which development consent was granted was significantly different to the development which was the subject of the application. In the course of her judgment, her Honour referred to the decision of the New South Wales Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 in which Priestley JA stated at 737 as follows:

    "In my opinion if a condition imposed upon a purported consent to a particular development application had the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application."

  3. After referring to Carr v Minister for Land and Water Conservation and setting out this extract from Mison v Randwick Municipal Council, Lloyd J concluded in Ben-Menashe v Ku-Ring-Gai Municipal Council, at [13], as follows:

    "In my opinion, in applying both Carr v The Minister and Mison v Randwick Municipal Council, I am led to the conclusion that there has been no consent to the application in this case.  There has in substance and in effect been either a failure to determine the application for which consent was sought or a refusal of that application.  I answer the preliminary question in the negative."

  4. Similarly, in this case, the Tribunal has come to the conclusion that there has been no consent to the application.  Condition 4 requires a significantly different subdivision to that shown in the subdivision plan for which Allsure sought approval, and reflects a refusal of the submitted plan.

  5. In Koltasz Smith and Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266, the Town Planning Appeal Tribunal held, at [47], as follows:

    "In ordinary circumstances, the Tribunal should not embark upon a review of the approval when it is a condition that is the subject of appeal.  This is because the Act gives no jurisdiction to consider an approval but only a refusal or a condition.  In addition, the approval can be acted upon and has legislative effect of constituting development consent under any town planning scheme pursuant to section 20D of the Act."

  6. However, these are not "ordinary circumstances". Section 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states that "the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review". The "reviewable decision" (see SAT Act s 17(3)), which Allsure has applied to the Tribunal to review, is the decision of the Commission to affix condition 4 to the granting of approval of the subdivision plan: see TPD Act s 26(1)(a)(ii). However, as discussed earlier, the decision to affix condition 4 reflects a refusal of the plan. The proceedings are, in substance, an application for review of the refusal of the Commission to approve the subdivision plan, even though Allsure did not appreciate that fact when it filed the application. The Tribunal has jurisdiction under s 26(1)(a)(i) of the TPD Act and s 251(1) of the PD Act to review the refusal of the Commission to approve the plan.

  7. In these unusual circumstances, it is within the jurisdiction of the Tribunal, in reviewing the Commission's decision, to determine for itself whether the proposed plan of subdivision should be approved and, if so, subject to what conditions.

  8. Consistently with this view, the parties' submissions made at the hearing proceeded on the basis that the matter in issue is not whether condition 4 should be imposed, but rather whether the plan of subdivision should be approved subject to conditions.

  9. At the conclusion of the hearing, the Tribunal made orders permitting Allsure to file further written submissions in relation to whether subdivision approval should be granted and, in effect, to consider its position.  Allsure did not subsequently seek leave to withdraw the proceedings.

  10. In his further written submissions, Mr Slarke contends that a person who holds an approval is entitled to rely on the validity of that approval until such time as it is quashed or declared invalid by a court of competent jurisdiction, and relies on the decision of the Tribunal in Lakes Action Group Association (Incorporated) and Shire of Northam [2005] WASAT 8, which cited with approval the decision of the Land and Environment Court of New South Wales in Swadling v Sutherland Shire Council (1994) 82 LGERA 431. Mr Slarke admits that "SAT cannot make a declaration of law to the effect that the approval granted by the [Commission] is invalid or ineffective, or otherwise quash the approval".

  11. However, the Tribunal does not make a declaration, or even a finding, that the approval which the Commission purported to give is invalid or ineffective, or otherwise to quash the approval.  What the Tribunal has necessarily done is to consider and construe the decision the subject of the review, and has determined that, in substance and effect, the decision was to refuse the application made to the Commission.  As the Town Planning Appeal Tribunal recognised in Koltasz Smith and Partners v Western Australian Planning Commission, at [48], in relation to subdivision approval, and as this Tribunal recognised in Randall and Town of Vincent [2005] WASAT 129, at [102] - [107], in relation to development approval, in some unusual circumstances, it is open to, and necessary for, the Tribunal to determine for itself whether approval should be granted and if so, subject to what conditions, even though the applicant only sought review of a particular condition of approval.

  12. Moreover, the decisions relied on by Allsure are distinguishable.  Lakes Action Group Association (Incorporated) and Shire of Northam concerned whether an allegation that a development approval was invalid was susceptible to examination in proceedings involving a referral by the Minister for Planning to the Tribunal of representations under s 18(2a) of the TPD Act (see now PD Act s 211(2)) for report and recommendations. The Tribunal determined, at [15], that the allegation had not been made in the representations to the Minister and that, if it had been, it would not appear to fit in the statutory description of a "failure of a local government to enforce effectively the observance of a town planning scheme in force under the [TPD Act]".

  13. Swadling v Sutherland Shire Council involved an application for judicial review of the decision of the Council to modify a development approval by deleting a condition which it believed it had invalidly imposed.  The Court held that the Council was required to treat the condition as valid, unless it had been declared invalid by a court of competent jurisdiction, and that its decision to modify the approval was vitiated by its assumption that there could be no prejudice to objectors because the condition was invalid.

Is further development approval required for development of the site?

  1. A preliminary issue which emerged is whether a development approval which was granted on 19 May 2005 by consent in review proceedings between Ms Carolyn Kirkham, who is the principal of Allsure, and the Commission, remains effective.  The development approval is for the construction of a business park comprising 17 units on the site.  The subdivision plan is consistent with the development approval.  Indeed, the boundaries of the proposed allotments are marked on the approved site plan of the development.  The approved development plans show two business/industrial units on proposed Lot 2 and a single business/industrial unit on each of proposed Lots 3, 5 and 6.

  2. The development approval was granted subject to the following three conditions:

    "(a)The development approval is valid for a period of 2 years from the date of the Orders.

    (b)The proposed new road intersection with South Western Highway being designed and constructed to the specifications and satisfaction of Main Roads Western Australia.

    (c)No drainage from the proposed development being discharged onto the South Western Highway reserve."

  3. On 10 December 2004, the Peel Region Planning Committee, acting under delegated authority from the Commission, resolved pursuant to s 37B of the Western Australian Planning Commission Act 1985 (WA) (WAPC Act) to "declare a regional planning control area over the land identified for future highway and railway purposes in the Shire of Waroona, as shown on Western Australian Planning Commission Plans 1.5488 and 1.5489". These plans include the western strip of the site, essentially corresponding with the area the subject of condition 4.

  4. On 28 February 2005, the Commission affixed its seal to the declaration of the regional planning control area in the presence of its Chairman and Secretary. The Commission then requested the approval of the Minister for Planning and Infrastructure for the declaration, as was required by s 37B. However, it appears that on 10 May 2005, the Peel Region Planning Committee, acting on behalf of the Commission, accepted the officers' recommendation that the Minister be requested not to make any determination on the earlier request, as recent advice had indicated that, contrary to an earlier view, the WAPC Act did not provide a right of compensation in relation to land in a regional planning control area. It appears that the Minister then deferred making a determination on the request for her approval for the declaration of the regional planning control area.

  5. The PD Act was assented to on 12 December 2005.  It is common ground that the PD Act provides for compensation of landowners affected by planning control areas in circumstances where the WAPC Act did not provide for compensation in relation to regional planning control areas.  On 7 February 2006, the Minister granted her approval for the declaration of the regional planning control area.  By notice published in the Gazette on 17 February 2006, the Commission declared that the land the subject of its resolution of 10 December 2004 is Regional Planning Control Area No 1 ­ Shire of Waroona ­ South Western Highway (Waroona Bypass) and Associated Railway Realignment (RPCA 1).  The gazettal notice states that RPCA 1 will remain in effect for a period of five years from the date of publication of the notice or until revoked by the Commission, with the approval of the Minister, whichever is the sooner.  The notice also states as follows:

    "Purpose of The Regional Planning Control Area

    The purpose of the regional planning control area is to protect the preferred alignment for the proposed South Western Highway (Waroona Bypass) and the associated railway realignment. The Commission considers the regional planning control area is required over the corridor to ensure no development occurs on the land that might prejudice this purpose until it may be reserved for Primary Regional Roads and Railways (as applicable) in the Peel Region Scheme."

  1. The WAPC Act was repealed with effect from 9 April 2006 by s 4 and Sch 1 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) (PD (CTP) Act). Part 7 of the PD Act (which comprises s 112 to s 118) provides for the declaration of planning control areas by the Commission with the Minister's approval, and replaces s 37B of the WAPC Act, among other provisions. RPCA 1 continues in existence as if it had been declared as a planning control area under Pt 7 of the PD Act: PD (CTP) Act s 17; Interpretation Act 1984 (WA) s 36.

  2. Section 115(1) of the PD Act provides that "[a] person who wishes to commence and carry out development in a planning control area may apply to the local government in the district of which the planning control area is situated for approval of that development". Section 115(3) requires the local government, within 30 days of receiving the application, to forward the application, together with its recommendation, to the Commission for determination. Section 116(1) provides as follows:

    "(1)After receiving an application and recommendation forwarded to it under section 115(3), the Commission may ­

    (a)consult with any authority that in the circumstances it thinks appropriate; and

    (b)having regard to ­

    (i)any relevant State planning policy;

    (ii)the purposes for which the land to which that application relates is zoned or reserved under a region planning scheme;

    (iii)any special considerations relating to the nature of the planning control area concerned and of the development to which that application relates; and

    (iv)the orderly and proper planning, and the preservation of the amenity, of the locality in which the land to which that application relates is situated,

    approve, subject to such conditions as it thinks fit, or refuse to approve, that application."

  3. Section 220 of the PD Act provides as follows:

    "A person who commences, continues or carries out development in a planning control area except ­

    (a)with the prior approval of that development obtained under section 116; and

    (b)in a manner which is in conformity with the approval referred to in paragraph (a) and in accordance with the conditions, if any, subject to which that approval is given,

    commits an offence."

  4. However, s 118 of the PD Act provides as follows:

    "Nothing in this Part or section 220 affects ­

    (a)the continued use of any land in a planning control area for the purpose for which it was lawfully being used; or

    (b)the continuation and completion of the development of any land in a planning control area, including the erection, construction, alteration or carrying out, as the case requires, of any building, excavation or other works on that land, which development was lawfully being carried out,

    immediately before the declaration of the planning control area."

  5. It is Allsure's case that it does not require a further development approval under s 115, because the development the subject of the development approval granted by consent on 19 May 2005 "was lawfully being carried out" (within the meaning of s 118) immediately before the declaration of RPCA 1. Mr Slarke submits that the ordinary meaning of the words "carried out" encompass the acts necessary to bring a development into fruition, and that if a developer has undertaken activities to comply with conditions of development approval, the development "was lawfully being carried out", within the meaning of the provision. He submits that this construction is consistent with the beneficial object of the provision to protect developers' rights where development approvals are being acted on. Mr Slarke also stresses that s 118 does not require that the development be "commenced" before the declaration.

  6. Ms Kirkham gave uncontested evidence that, since obtaining the development approval, she has "acted on the approval by attempting to satisfy conditions (b) and (c), and otherwise [has] attempted to progress the development".  On 1 July 2005, Ms Kirkham engaged an engineering consultant to prepare the plans required for the access road, highway crossover and associated drainage.  The engineering consultant had initial discussions with Main Roads as to their requirements in August 2005 and subsequently prepared the drawings.  On 7 November 2005, the consultant submitted the drawings to Main Roads and to the Shire for consideration and approval.  Allsure paid $13 750 for the consultant's work.

  7. In December 2005, oral comments were received from Main Roads in relation to possible modifications to the length of the culvert, kerb openings and kerb terminations.  No adjustments have been made to those items as yet, as the Shire has not made any comment on the plans.  Allsure's consultant spoke to the Shire's Works Manager in March 2006 regarding the plans.  The Works Manager was apparently aware that the plans had been received, but had not looked at them.  He said that the Shire was waiting for the resolution of "the subdivision or planning issues".

  8. In August 2005, Ms Kirkham requested assistance from Waroona Electrical to fill out Western Power forms for the development.  She also submitted a landscape plan to the Shire to satisfy the Shire's requirements and received comments from the Shire's Manager Planning and Development Services in relation to that plan.

  9. On 1 December 2005, Ms Kirkham sought a quotation to construct the access road and associated drainage for the development.  On 5 February 2006, Ms Kirkham received a quotation to construct the subdivision, which she regarded as excessive.

  10. Ms Eddy submits that the activities undertaken to comply with the conditions of development approval, or otherwise to progress the development, do not satisfy par (b) of s 118. She submits that, although the provision does not expressly require that a development be "commenced" before a declaration, when the section is read as a whole and in context, "it is the only way it makes sense". Ms Eddy submits that the approved development has not commenced and could not commence until at least some of the approved physical changes to the site had been carried out.

  11. The Tribunal does not consider that the activities undertaken by Allsure and/or Ms Kirkham prior to the declaration of RPCA 1 demonstrate that the "development was lawfully being carried out", on the proper interpretation of s 118, for four reasons.

  12. First, as Mr Slarke properly concedes, the "development" to which s 118 relevantly refers is the construction of 17 business/industrial units and associated infrastructure on the site. That development was not "being carried out" by undertaking the activities described earlier, which Ms Eddy correctly characterises as "merely … preparatory to development".

  13. Second, s 118 creates, in effect, exceptions to the operation of Pt 7 and s 220. It could not be reasonably suggested that development approval would be required under s 115, or that an offence has been carried out contrary to s 220, where a person undertakes the activities relied on by Allsure. The effect of Mr Slarke's submission, if correct, would be for the exception to have greater scope than the rule.

  14. Third, although it is correct that s 118 does not expressly require that approved development have "commenced" in order for the protection afforded by that section to operate, it is apparent from the wording of s 115(1) (see [31]) that the "carrying out" of development for the purposes of Pt 7 of the PD Act is necessarily preceded by its "commencement".

  15. Fourth, it is apparent that par (a) and par (b) of s 118 are intended, together, to cover both defined aspects of the term "development" in s 4(1) of the PD Act, namely "use" and physical "development" of land: see University of Western Australia v City of Subiaco (1980) 52 LGRA 360 at 363 ­ 364. In order for land in a planning control area to be "lawfully being used" for a particular purposes under par (a), the relevant use must have commenced. It could not be suggested that land was "lawfully being used" for a purpose where a developer has merely undertaken activities to comply with conditions of development approval authorising the use, but the use of the land has not actually commenced. Consistency between the two limbs of s 118 also indicates that merely acting on a condition of development approval which authorises the carrying out of physical works on land, without having actually and lawfully commenced some physical activity authorised or required by the approval on the land, does not satisfy the requirements of par (b). It is implicit in both paragraphs of s 118 that the development in question must have commenced, before the declaration of a planning control area, in order for the use to be continued, or the physical development to be continued and completed, without the need to obtain development approval under Pt 7.

  16. It follows that the development approval granted on 19 May 2005 has been statutorily set aside by the subsequent declaration of RPCA 1 in relation to the development authorised within the area of RPCA 1.

Should subdivision approval be granted?

  1. Clause 1.2 of the Commission's Development Control Policy 1.1 ­ Subdivision of Land General Principles (DC 1.1) provides that, in its determination of applications, the Commission "will seek to ensure that the broad objectives contained in section 2 of this policy are met".  The clause also provides that "[i]f the objectives cannot be complied with then the application will not be approved".  The objectives contained in s 2 include "to ensure that the subdivision is consistent with orderly and proper planning" and "to create lots that are capable of lawful development … ".

  2. Mr Pride gave unchallenged evidence that, in his opinion, "it would be highly unlikely that the [Commission] would grant approval to develop land that is within the corridor of the Waroona Bypass (that is, the land subject to RPCA 1)".  Mr Pride also gave unchallenged evidence that the part of proposed Lot 2 outside RPCA 1 would have an area below the minimum 2000 square metre lot size contemplated by TPS 7 and would have an awkward configuration such that "it would be inappropriate for industrial purposes".  The parts of proposed Lots 3, 5 and 6 outside the declaration "would be unusable for industrial lots because they are too small and have awkward configurations".

  3. Mr Slarke submits that, if further development approval were required to undertake development on the proposed allotments and if approval were refused by the Commission, Allsure would apply for review of the refusal by the Tribunal.  However, for reasons which follow, the Tribunal is satisfied that it is unlikely that approval would be granted by either the Commission or the Tribunal for business/industrial development on proposed Lots 2, 3, 5 or 6.  The Tribunal considers that it would be contrary to the objectives of DC 1.1 referred to earlier, and orderly and proper planning generally, to approve a subdivision intended for a particular purpose where the proposed lots are unlikely to be capable of development for that purpose.  Lots are unlikely to be capable of development where necessary development approval is unlikely to be obtained.

  4. Mr Slarke submits that Allsure is relevantly in the same position, in terms of obtaining development approval consistent with the subdivision, as it was in May 2005, when development approval was granted by consent.  He submits that RPCA 1 merely creates an additional level of planning control, but does not change the required matters for consideration which would exist in any case and which existed and were taken into account in the grant of the previous development approval.  He also submits that the Waroona Bypass proposal, while a "seriously­entertained planning proposal", has not progressed in any significant way since May 2005.

  5. The Tribunal considers that the declaration of RPCA 1 would have significance in two respects in relation to assessment of an application to carry out development on proposed Lots 2, 3, 5 and 6.

  6. First, as noted earlier, s 116(1)(b)(iii) of the PD Act would require the Commission (and the Tribunal on review) to determine a development application having regard to "any special considerations relating to the nature of the planning control area concerned and of the development to which that application relates". As also noted earlier, the purpose of RPCA 1 "is to protect the preferred alignment" for the Waroona Bypass, and the Commission considers that the planning control area is required "to ensure no development occurs on the land that might prejudice this purpose".

  7. Second, although it is correct, as Mr Slarke submits, that it is sufficient for the declaration of a planning control area that land "may be required" (emphasis added) for one or more of the purposes specified in Sch 6 (PD Act s 112(1)), the declaration is a step which adds to the relative certainty and imminence of the proposed bypass being implemented.

  8. Although it is common ground that the Waroona Bypass is a "seriously­entertained proposal", there was considerable debate at the hearing as to the weight which would be attributed to it in a planning assessment concerning the site.  The debate focused on the degree to which the ultimate approval and implementation of the bypass proposal could be regarded as certain or imminent: see Nicholls and Western Australian Planning Commission [2005] WASAT 40 at [59].

  9. Planning for the proposed Waroona Bypass began almost a decade ago.  Roads 2020 Regional Road Development Strategy (October 1997) (Roads 2020) recommended that provision be made for a future dual carriageway from Armadale to Bunbury and that bypasses be provided for townsites.  It indicated that bypasses will improve safety, the amenity of towns and travel times for through traffic.  The Southern Province Transport Strategy (March 1998) supported a bypass of South Western Highway at Waroona by recommending the improvement and upgrading of the road network in accordance with Roads 2020.

  10. Planning for the realignment of South Western Highway at Waroona in fact commenced prior to the publication of Roads 2020.  In 1996, Main Roads, in consultation with the Shire, initiated a study and commissioned consultant engineers to investigate a deviation at Waroona.  The initial stage of the study identified four alternative alignments, some with a number of variations.  In late 1996, the four route options and the outcomes of the preliminary assessment were subject to a comprehensive public consultation process, including direct mailing to affected stakeholders, press releases and advertising in local newspapers, a three­week public display, and discussions with the Shire.  There was approximately 60% support for "option 2" which is relevantly the alignment of what is now RPCA 1.

  11. Following further refinement of the preferred route, in June 2001, the Shire resolved that a postal ballot would be undertaken to determine the level of community support.  The postal ballot, which was conducted on behalf of the Shire by the Western Australian Electoral Commission, asked electors whether they support the development of an alternative alignment for South Western Highway at Waroona and, if an alternative alignment is to be developed, which of two options they prefer.  Approximately 56% of electors voted in the postal ballot.  Almost two­thirds of the electors who voted support the development of an alternative alignment for the highway.  Approximately 56% supported "option 2".

  12. On 7 May 2003, the Commission's Transport Committee endorsed the adoption of "option 2" as the preferred alignment option and supported Main Roads undertaking further planning and consultation with the Department for Planning and Infrastructure and the Shire to define a reservation for the Waroona Bypass.  In September 2003, the Shire supported the inclusion of the proposed bypass in the PRS subject to the preparation of an alignment definition report to the satisfaction of the Council.

  13. In July 2004, engineering consultants completed an alignment definition report for the Waroona Bypass on behalf of Main Roads.  The report states that it was prepared "to refine the concept design for [the preferred option ­ 'option 2'] taking into account constraints and other issues that have emerged since the alignment was adopted".  The preferred option generally follows the Perth­Bunbury railway reservation and necessitates a partial relocation of the railway line and associated infrastructure to the west.  The report concludes that its definition of the concept for the Waroona Bypass "achieves the necessary design guidelines and where possible avoids significant constraints".  It notes that there are "a number of unresolved impacts and issues that need further consultation and it is recommended that the plans and report be provided to stakeholders for review and comment".  In particular, the report identifies the need for consultation in relation to the impact of the proposed works and reservations on two historic buildings, a campsite used by Aboriginal workers in the first half of the twentieth century and a dampland, all of which are located in the southern part of the proposed bypass some distance to the south of the site.

  14. Mr Pride gave evidence that consultations and discussions in relation to these outstanding aspects are currently taking place.  He described the remaining task as "fine tuning", and noted that he would attend a meeting the day after the hearing "to tie down this fine tuning".  He gave evidence that this "is unlikely to affect the alignment in the vicinity of the site" and that he has "considerable confidence in the alignment".

  15. In light of this evidence, it would be reasonable to attribute considerable weight to the inconsistency between development of the proposed lots for business/industrial purposes and the proposed bypass in a planning assessment of such development.  It is correct, as Mr Slarke submits, that amendment of the PRS would be required in order to implement the proposed bypass.  Moreover, as Mr Pride fairly conceded in cross­examination, there is a possibility that the proposal would not be implemented in consequence of submissions received during the PRS amendment process.  However, in the circumstances of this case, the Tribunal is satisfied that, as Ms Eddy submits, implementation of the proposal is sufficiently certain such that considerable weight would appropriately be given to it.  In particular, although a public consultation process remains to be undertaken for the purposes of the amendment of the PRS, as noted earlier, considerable public consultation has already taken place, including a postal ballot.  On two occasions, a majority of the local community has supported the implementation of the proposed bypass alignment.

  16. The evidence indicates that the Waroona Bypass is likely to be required in approximately 15 years.  In light of the apparent length of time a major road proposal, such as the Waroona Bypass, takes to conceive, plan, refine and construct, the proposal has a sufficient degree of imminence to warrant considerable weight being given to it in a planning assessment concerning development of the land.

  17. In assessing an application for development of the proposed lots, the Commission (and the Tribunal on review) would be required to take into consideration Statement of Planning Policy No 1 ­ State Planning Framework Policy (SPP 1).  Paragraph A1 of SPP 1 states that "the primary aim of planning is to provide for the sustainable use and development of land".  Paragraph A2 states that the "State Planning Strategy identifies the five key principles which further define this primary aim and describes the considerations which influence good decision­making in land use planning and development".  One of the key principles is "infrastructure": "to facilitate strategic development by making provision for efficient and equitable transport and public utilities".  Paragraph A4 provides that "planning should ensure that physical and community infrastructure by both private and public agencies is coordinated and provided in a way that is efficient, equitable, accessible and timely", "planning for land use and development in a manner that allows for the logical and efficient provision and maintenance of infrastructure, including setting aside land for the construction of future transport routes … ", and "protecting key infrastructure, including … roads … and service corridors from inappropriate land use and development".

  1. An express purpose of the PD Act is to "promote the sustainable use and development of land in the State": s 3(1)(c). Mr Pride gave evidence that development of the parts of the site subject to RPCA 1 for business/industrial purposes would not be consistent with this purpose, because the resources which would be involved in the construction of the development and establishment of business would be wholly or partly wasted when the land is ultimately developed for the road.

  2. The Tribunal considers that the carrying out of a substantial development, such as the construction of business/industrial units, roads and associated infrastructure, for a limited life of 15 years, is inconsistent with the promotion of the sustainable use and development of land.

  3. It follows from this analysis that, having regard to SPP 1, the special considerations relating to the nature of RPCA 1, particularly its purpose and the reason it was declared, and the orderly and proper planning of the locality including the weight to be given to the Waroona Bypass proposal, and guided by the purpose of the PD Act to promote the sustainable use and development of land, it is unlikely that the Commission or the Tribunal on review would approve business/industrial development on proposed Lots 2, 3, 5 or 6.  Although regard is also required to be given to the purpose for which the land is zoned under the PRS, namely as "Industry", it is unlikely, given the other considerations referred to and the evidence recorded earlier, that development approval for business/industrial purposes would be granted.

  4. Finally, Mr Slarke submits that it would not be fair or reasonable for the Commission to refuse a new application in substantially identical terms to that approved on 19 May 2005.  It is certainly in the interests of orderly and proper planning that identical or substantially similar development applications be assessed in the same way.  However, for reasons discussed earlier, the Tribunal is satisfied that the declaration of RPCA 1 and the further "fine tuning" of the proposed bypass alignment involve sufficiently significant changes such that a different result is now likely in terms of planning assessment of the development approved in 2005.

Conclusion

  1. The development approval granted on 19 May 2005 for the construction of a business park comprising 17 units on the site has been statutorily set aside by the declaration of RPCA 1 in relation to land within the planning control area.  The result is that there is no subsisting development approval for the carrying out of development on proposed Lots 3, 5 or 6 or on over half of proposed Lot 2.  It appears that the portion of proposed Lot 2 which is outside RPCA 1 is the site of most, but not all, of one of the two units approved on 19 May 2005 on that proposed lot.  Further development approval would, therefore, be required for the development of four out of six proposed lots.

  2. It is unlikely that the Commission or the Tribunal on review would approve business/industrial development on proposed Lots 2, 3, 5 or 6, having regard to SPP 1, the nature of RPCA 1, particularly its purpose and reason, proper and orderly planning of the locality, including the weight to be given to the Waroona Bypass proposal, and the promotion of the sustainable use and development of land.

  3. In his further written submissions, Mr Slarke says that if the Tribunal does not accept the contentions made on behalf of Allsure, it "would prefer to retain the benefit of an approval subject to Condition 4 than to not have any approval at all".  In her reply, Ms Eddy contends that, if the Tribunal determines that the decision to approve the plan subject to condition 4 was in substance a decision to refuse or not to determine the plan (leading to a deemed refusal of the application), "then the review application could only be resolved by the Tribunal making a determination of whether the correct and preferable decision is refusal of the subdivision application or, alternatively, approval without condition 4".

  4. The Tribunal cannot "approve" the subdivision plan proposed by Allsure subject to condition 4.  As discussed in these reasons, the imposition of condition 4 reflects a refusal of the application.  If the Tribunal considers that an application warrants refusal, it should refuse the application directly.

  5. The correct and preferable decision at the time of the decision upon the review is that the plan of subdivision should be refused.  It would be contrary to orderly and proper planning to approve a subdivision intended for a particular purpose where the proposed lots are unlikely to be capable of development for that purpose.  Lots are unlikely to be capable of development where necessary development is unlikely to be obtained.

Orders

  1. The Tribunal makes the following orders:

    1.The decision of the respondent to grant approval subject to conditions to subdivision of Lot 40 South Western Highway, Waroona is set aside.

    2.The subdivision shown on drawing no 2003­405­C1 Rev 1 dated 17 September 2003 by Marocchi Engineering Group is refused.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER

Most Recent Citation
Cases Citing This Decision

3

BRITZA and SHIRE OF GINGIN [2022] WASAT 58
HERO PTY LTD and CITY OF KALAMUNDA [2021] WASAT 31
CHRISTIE and TOWN OF EAST FREMANTLE [2006] WASAT 270
Cases Cited

5

Statutory Material Cited

8

Weal v Bathurst City Council [2000] NSWCA 88
Ben-Menashe v Ku-ring-gai Municipal Council [2001] NSWLEC 168
Weal v Bathurst City Council [2000] NSWCA 88