ANKETELL SOUTH INVESTMENT PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION

[2018] WASAT 100

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

CITATION:   ANKETELL SOUTH INVESTMENT PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 100

MEMBER:   MS L EDDY (MEMBER)

MR J JORDAN (SENIOR SESSIONAL MEMBER)

HEARD:   1 MAY 2018

DELIVERED          :   8 OCTOBER 2018

FILE NO/S:   DR 104 of 2015

BETWEEN:   ANKETELL COMMERCIAL PTY LTD

First Applicant

ANKETELL SOUTH INVESTMENT PTY LTD

Second Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

FILE NO/S:   DR 136 of 2015

BETWEEN:   ANKETELL COMMERCIAL PTY LTD

First Applicant

ANKETELL SOUTH INVESTMENT PTY LTD

Second Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Planning and Development - Review of conditional approval of subdivision - Validity of conditions - Need for covenant on title in relation to access to road - Need for notification on title in relation to transport noise - Need for urban water management plan - Whether information in urban water management plan will be provided as a result of other conditions - Landscaping condition - Whether condition sufficiently clear as to standard of development of public open space required - Condition requiring maintenance of public open space for two years after subdivision - Contribution to school site condition - Whether condition uncertain
Planning and Development - Review of conditional approval of subdivision - Validity of conditions -  Requirement to build subdivision road - where no subdivision road in proposed subdivision plan - whether proposed subdivision a step in a series of subdivision - Requirement to set aside land for future road widening - Need for covenant on title in relation to access to road - Turns on own facts

Legislation:

Land Administration Act 1997 (WA), s 46(1)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 27(1)
Planning and Development Act 2005 (WA), s 143(1), s 152(1), s 241(1)(a), s 251(2), s 253(1), Pt 10, Pt 14
School Education Act 1999 (WA)
Town of Kwinana Local Planning Scheme No 2 (WA), cl 6.15.1, 6.15.3
Transfer of Land Act 1893 (WA), s 70A

Result:

Applications partly allowed.

Category:    B

Representation:

DR 104 of 2015

Counsel:

First Applicant	:	Mr I McKellar
Second Applicant	:	Mr I McKellar
Respondent	:	Mr E Fearis

Solicitors:

First Applicant	:	Civil Technology
Second Applicant	:	Civil Technology
Respondent	:	State Solicitor's Office

DR 136 of 2015

Counsel:

First Applicant	:	Mr I McKellar
Second Applicant	:	Mr I McKellar
Respondent	:	Mr E Fearis

Solicitors:

First Applicant	:	Civil Technology
Second Applicant	:	Civil Technology
Respondent	:	State Solicitor's Office

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

Hill v State Planning Commission (1994) 10 SR (WA) 354

Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142

LWP Property Group Pty Ltd and City of Swan [2006] WASAT 308

Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83

Randall and Town of Vincent [2005] WASAT 147

Reid v Western Australian Planning Commission [2016] WASCA 181

Sin­Aus­Bel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266

Tillbrook and Western Australian Planning Commission [2011] WASAT 130

Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 1 July 2014, Anketell Commercial Pty Ltd and Anketell South Investment Pty Ltd (applicants) sought approval from the Western Australian Planning Commission (WAPC or respondent) for the subdivision of Lots 1, 2 and 3 Thomas Road and part Lot 13 Thomas Road, Anketell (site) to create 143 lots for residential purposes, a 'service commercial' lot, public purposes lots for a community facility, for public open space reserves, balance title lots and associated road reserves (residential subdivision application).  At the same time the applicants also sought approval from the respondent for the amalgamation and re­subdivision of Lots 2 and 3 Thomas Road, Anketell (site 2) to create a commercial lot and a balance title lot which is in two parts (commercial subdivision application).

2. The respondent approved the residential subdivision application subject to 39 conditions on 10 February 2015.  On 27 March 2015, the applicants applied to the Tribunal for review of 22 of those conditions (DR 104/2015).  Following an invitation to reconsider its decision, only 12 conditions remained the subject of the review proceedings.

3. On 23 April 2015, the applicants issued the respondent with the notice of default under s 253(1) of the Planning and Development Act 2005 (WA) (PD Act). On the same day the applicants applied to the Tribunal for review of the respondent's deemed refusal of the commercial subdivision application (DR 136/2015). An invitation to reconsider its decision, the respondent approved the commercial subdivision application subject to conditions. Subsequently the applicants sought review of six of those conditions. By the time the matter was heard, only three conditions remained in dispute.

4. Both DR 104/2015 and DR 136/2015 were heard together on 1 and 2 November 2017 and on 1 May 2018.

Issues

DR 104/2015 residential subdivision approval

1. The broad issue arising in DR 104/2015, as identified by the parties in their statements of issues facts and contentions (Exhibit 1 and Exhibit 3) is whether the correct and preferable decision is to impose conditions 5, 6, 8, 11, 15, 17, 26, 30, 31, 33, 34 and 36 on the residential subdivision approval.  However, at the commencement of the final hearing, the parties advised that they had resolved their differences in relation to conditions 5, 6, 11, 30, 31, 33 and 34.  The parties agreed that condition 6 should be deleted, condition 5 should be amended as proposed by the respondent in its amended statement of issues facts and contentions (Exhibit 1), the wording of conditions 11, 30, 33 and 34 should be amended as proposed by the applicants in their statement of issues facts and contentions (Exhibit 3) and the applicants no longer contested condition 31.  The conditions in dispute were ultimately only conditions 8, 15, 17, 26 and 36.

2. Condition 8 requires a covenant on the certificates of title preventing vehicular access on to Thomas Road.  The applicants submit this condition is ultra vires and has no proper planning purpose. 

3. Conditions 15 and 17 require the preparation of an Urban Water Management Plan (UWMP) and the preparation of engineering drawings and specifications for the filling and/or draining of the land in accordance with an approved UWMP for the site.  The applicants submit that there is no need for an UWMP as the information that would be put into such a document has already been provided by the applicants.  Therefore, it is submitted, these conditions, to the extent that they refer to an UWMP, have no planning purpose.

4. Condition 26 requires arrangements to be made for the proposed public open spaces to be developed and to be maintained for two years after subdivision.  The applicants submit this condition is ultra vires on the basis that conditions of subdivision approval have to be able to be cleared before subdivision can be effected by the issuing of certificates of title.  The applicants are only able to obtain certificates of title if they receive endorsement by the respondent of the deposited plan of subdivision, which requires the respondent to be satisfied that all conditions have been satisfied.  It is submitted that condition 26, which requires work post subdivision, is not able to be cleared prior to subdivision occurring.

5. Condition 36 requires a pro rata contribution towards the cost of the acquisition of the primary school site.  The applicants submit that the need for a school site arises from the fact of population growth, not from the fact of any subdivision.  The applicant also submits that it is the Minister for Education's statutory duty to provide schools and private citizens cannot be required to carry out this public duty.  Further, the applicants submit that there is no nexus between this condition and the proposed subdivision.

DR 136/2015 commercial subdivision approval

1. The broad issue arising in DR 136/2015, as identified in the parties' statements of issues facts and contentions (Exhibit 1 and Exhibit 3) is whether the correct and preferable decision is to impose conditions 1, 2, 3, 5, 6 and 7 of the commercial subdivision approval.  However, at the commencement of the final hearing the parties had advised that only conditions 1, 2 and 5 remained in dispute.  The parties agreed that conditions 3, 6 and 7 should be deleted. 

2. Condition 1 requires a subdivisional road to be constructed in order to provide proposed Lot 1 with frontage to a constructed road other than Thomas Road.  The applicants submit that this condition is vague and unenforceable as there is no subdivision road shown on the subdivision plan.  The applicants also submit that the condition has no nexus with the commercial subdivision as the proposed lots already have frontage to a gazetted road, being Thomas Road. 

3. Condition 2 requires land to be set aside as a separate lot in order to allow for future widening of Thomas Road.  The applicants submit that this condition is vague and unenforceable as there are no conditions specifying the extent of the area sought to be set aside as a separate lot.  The applicant also submits that this condition has no nexus with the commercial subdivision.

4. Condition 5 requires a covenant on the certificates of title of the lots preventing vehicular access from the lots onto Thomas Road.  The applicants submit that the commercial subdivision does not propose any change to the connection of site 2 to Thomas Road.  The applicants also submit that this condition has no nexus with the commercial subdivision.

Planning framework

1. The power to impose conditions on a subdivision approval arises from s 143(1) of the PD Act, which provides:

   After considering any objections or recommendations contained in a memorandum forwarded to the Commission under section 142, and any advice of a relevant environmental condition forwarded to it under that section, the Commission is to ­

   (a)approve the plan of subdivision; or

   (b)refuse to approve the plan of subdivision; or

   (c)approve the plan of subdivision and require the applicant for approval to comply with such conditions as the Commission thinks fit before the diagram or plan of survey will be endorsed with the approval of the Commission.

2. Pursuant to s 251(2) of the PD Act an applicant may apply to the Tribunal for review of conditions affixed to the granting of an approval of subdivision. In determining an application for review made under Pt 14 of the PD Act the Tribunal is to have due regard to, relevantly to this matter, relevant planning considerations including any State planning policy which may affect the subject matter of the application: s 241(1)(a) of the PD Act.

3. The site and site 2 are zoned 'Urban' and 'Urban Deferred' under the Metropolitan Region Scheme (MRS).  The 'Urban Deferred' portion has been identified as required for the widening of Thomas Road.

4. The site and site 2 are zoned 'Development' under the Town of Kwinana' Local Planning Scheme No 2 (LPS 2).  The purpose of the Development Zone is identified in cl 6.15.1 of LPS 2 as:

   The purpose of the Development Zone is to provide for the orderly planning and development of larger areas of land in an integrated manner within a regional context whilst retaining flexibility to review planning with changing circumstances.  In considering applications for development and changes to residential density codings in areas near existing and proposed future railway stations the Council will have due regard to the desirability of higher residential densities, transit related development and good pedestrian and vehicular access to stations in order to promote public transport usage.

5. Clause 6.15.3 of LPS 2 provides:

   Subject to Clause 6.17.2, the subdivision, use and development of land is to generally be in accordance with a Structure Plan that has been prepared and adopted under the provisions of Clause 6.17 of the Scheme.

6. However this has been overtaken by the insertion of the deemed provision in cl 27(1) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), which provides:

   A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.

7. The Anketell South Local Structure Plan (Anketell South Structure Plan) was endorsed by the respondent on 22 May 2014.

8. Policies that are relevant to this matter include:

   •State Planning Policy 2.1 ­ Peel-Harvey Coastal Plain Catchment (SPP 2.1);

   •State Planning Policy 3.6 Development Contributions for Infrastructure (SPP 3.6);

   •State Planning Policy 4.2 Activity Centres for Perth and Peel (SPP 4.2);

   •Development Control Policy 1.7 ­ General Road Planning (DC 1.7);

   •Development Control Policy 5.1 ­ Regional Roads (Vehicular Access) (DC 5.1);

   •Development Control Policy 2.3 ­ Public Open Space in Residential Areas (DC 2.3);

   •Development Control Policy 2.4 ­ School Sites (DC 2.4);

   •Liveable Neighbourhoods (Draft 2015) (Liveable Neighbourhoods);

   •The Better Urban Water Management guidelines (BUWM guidelines).

Principles

1. The test for determining the validity of a condition imposed upon a subdivision approval is well settled.  In Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, at [57] the High Court summarised that for a condition to be valid the condition must:

   1)be for a planning purpose and not for any ulterior purpose.  A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning;

   2)be reasonably and fairly relate to the subdivision proposed; and

   3)not be so unreasonable that no reasonable planning authority could have imposed it.

2. More recently, in Reid v Western Australian Planning Commission [2016] WASCA 181, at [22] and [26] the Court of Appeal (WA) emphasised that for a condition to be valid, there must be a real connection between the condition imposed and the proposed subdivision, with the connection being between the purpose for which the condition is imposed and the likely or possible consequences of the subdivision if approved.

3. However, a condition need not relate directly to the subdivision in question if the subdivision is one of a series of subdivisions of a larger parcel of land and the condition relates to the larger parcel of land as a whole:  Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142.

4. A condition will not be valid if it is uncertain:  Randall and Town of Vincent [2005] WASAT 147 at [14] to [19]; see also Hill v State Planning Commission (1994) 10 SR (WA) 354 at 367.

DR 104/2015 residential subdivision

Condition 8 ­ covenant on certificates of title

1. Mr Frank Andrew Ness, Senior Planning Officer of the Department of Planning, Lands and Heritage gave evidence on behalf of the respondent.  Mr Paul William Bashall, a consultant town planner, gave evidence on behalf of the applicants.  Mr Justin Paul McKirdy, Manager of Statutory Road Planning at Main Roads Western Australia (Main Roads WA) also gave evidence in relation to the need for condition 8, which he says is aimed at preventing access from any of the lots directly on to Thomas Road.

2. Mr McKirdy states that Thomas Road is currently reserved in the MRS as an 'Other Regional Road' but substantial progress has been achieved on the path to making Thomas Road a 'Primary Regional Road'.  Mr Ness stated at the hearing that the amendment to the MRS that makes Thomas Road into a 'Primary Regional Road' had now been approved by the Minister and would come into effect imminently.

3. Thomas Road provides for the movement of freight in heavy vehicles up to 27.5 metres long, and has a posted speed limit of 90 kilometres per hour to a point adjacent to Lot 17, Thomas Road, where the speed limit to the west reduces to 70 kilometres per hour.  Mr McKirdy notes that it is probable that the posted speed limit will reduce to 70 kilometres per hour where Thomas Road abuts the residential lots and the commercial lots of the proposed subdivision once the land is developed.  The road is a four lane dual carriageway to a point approximately 250 metres from the eastern intersection of Thomas Road with the interchange at Kwinana Freeway, after which it becomes a two lane single carriageway.

4. Mr McKirdy describes Thomas Road as a key strategic transport link extending from Rockingham Road in the west to the South West Highway in the east, which connects along the length to strategic links such as Kwinana Freeway and Tonkin Highway.  The section of Thomas Road west of the Kwinana Freeway is identified in the Perth Transport Plan as a secondary Freight Network route, which means it is in the second most important category of freight routes.  Mr McKirdy also notes that the current planning being progressed for the Outer Harbour identifies Thomas Road as one of three east­west freight corridors that will provide opportunity for freight traffic to travel to and from the Outer Harbour and associated activities when developed.

5. According to Mr McKirdy, Thomas Road currently carries in the order of 15,000 to 16,000 vehicles per day, with approximately 18% of this being heavy vehicles.

6. In Mr McKirdy's opinion it is important to minimise the number of access points to distributor roads such as Thomas Road.  Mr McKirdy relies on Austroads Guide to Traffic Management and Liveable Neighbourhoods in support of this proposition.  Mr McKirdy says that allowing direct access to Thomas Road from any of the lots in the proposed subdivision that abut Thomas Road would also be inconsistent with DC 5.1.  Further, Mr McKirdy is of the view that allowing direct access from those lots to Thomas Road would have efficiency and safety implications.  Mr McKirdy points to the Anketell South Structure Plan, which contemplates three access points to Thomas Road for the whole structure plan area.

7. None of this evidence was contested.

8. Mr Bashall says that there will be only two residential lots that would abut Thomas Road after the future road widening had occurred.  He notes that, as a matter of normal road construction, it is likely that the widened Thomas Road would have curbs and drains, et cetera, which would not invite vehicular access onto those lots.  Mr Bashall is of the view that if an owner of either of those two lots requested permission to install a crossover, in order to obtain direct vehicular access to Thomas Road, they would not be granted any such permission.  Similarly, the 'service commercial' lot (Lot 144) would not be granted permission to directly access a future widened Thomas Road.  In those circumstances, Mr Bashall says there is no need for a requirement for a covenant to be put on any titles.

9. Mr Ness agreed that it would be likely that the future widened Thomas Road would have structures that would provide physical barriers to access onto Thomas Road.  Mr Bashall and Mr Ness agreed that it was very unlikely that the local government would develop and use the public open space in a way that would encourage direct vehicular access from the future widened Thomas Road onto the public open space, although they accept that it is possible that it could do so.

10. The Tribunal notes that condition 30 requires fencing to be constructed along the boundary of lots abutting the Thomas Road reserve.  Therefore there will be fences on the lot boundaries that abut the future widened road. 

1. Given that there will be a physical barrier between the two residential lots and the future widened Thomas Road, and given that it is likely that the road itself will present physical barriers to access from the road to these two lots, the Tribunal is not persuaded that there is any need for a covenant of the type contemplated in relation to these two lots.

2. The 'service commercial' lot will need development approval for any development to occur.  It is inconceivable that the local government would allow any development to occur that proposes direct vehicular access onto Thomas Road.  Any such application would have to be referred to Main Roads WA and that body would not support such a proposal.  The Tribunal is therefore not persuaded that there is any need for any covenant on the title to Lot 144. 

3. The remaining lot referred to in condition 8, the public open space lot, is not required to have any fence on the boundary with the future widened Thomas Road.  However, the entity with the care and control of that space will be the local government.  There is no evidence before the Tribunal to suggest that the relevant local government would not be aware of the need to obtain permission from Main Roads WA if it wishes to have direct access to the public open space from the future widened Thomas Road.  The future road would no doubt have curbs and drainage infrastructure and would not invite access directly from Thomas Road onto the public open space.  The Tribunal is not persuaded that there is any utility in requiring a covenant on the title to land that will be crown land as contemplated by condition 8.

4. Condition 8 is not appropriate and should be deleted.

Conditions 15 and 17 ­ urban water management plan

1. Mr Antonino Scidone, a Development Engineer employed by the City of Kwinana (City) gave evidence in relation to the need for an UWMP.  Mr Scidone has a Diploma of Civil Engineering and experience in relation to assessing and inspecting engineering, stormwater, traffic and landscaping matters relating to subdivision.

2. Mr Scidone states that the residential subdivision will impact on the groundwater in two ways.  Firstly, the public open space will need to be irrigated and water for this is likely to be obtained via a bore from groundwater.  It is also likely that groundwater from a bore would be used for dust compression purposes during construction and earth works.  Secondly, stormwater will collect on paved surfaces and be conveyed via roads and piped drainage systems to drainage infiltration basins, swales and rain gardens, potentially conveying nutrients, heavy metals, hydrocarbons and other pollutants collected on paved surfaces to the groundwater.  The site drains to the Peel Sub P Drain, a constructed open drain traversing the southern portion of the site at Thomas Road.  That drain is part of the larger Peel Main Drain Catchment, which in turn discharges into the Serpentine River sub­catchment of the Peel-Harvey Estuary (Exhibit 6).  The Peel Main Drain passes through a number of wetlands and swamps, including Bollard Bulrush swamp in Wellard.  Mr Scidone states that nutrients and pollutants collected at the site following subdivision have the potential to enter these downstream water sources and potentially impact the ecology and water quality.

3. Mr Scidone refers to the BUWM guidelines at part 4.6 (Exhibit 2 page 593) which indicates when a subdivision application should be supported by an UWMP.  In Mr Scidone's opinion, the residential subdivision is one that presents significant risks to the groundwater resources in the locality as well as the local and downstream drain, wetland and estuary systems.  The Local Water Management Plan (LWMP) prepared in relation to the Anketell South Urban Cell Local Structure Plan states that development of the site will result in a significant increase in impervious surfaces and therefore runoff volumes leaving the site (Exhibit 2 page 649).  The LWMP states, in relation to stormwater management strategy, that the drainage concept plan for the subdivision is an indicative plan only with final levels and inlet and outlet structure locations to be determined in an UWMP (Exhibit 2 page 674).  The LWMP also states that the use of 'PRI amended soils' should be investigated in the UWMP (Exhibit 2 page 691).  In addition, the exact levels of basins in the LWMP are indicative only and 'are to be refined during the UWMP' (Exhibit 1 page 692).  At part 8 of the LWMP, the main areas which will require further details at UWMP stage are identified in 14 bullet points (Exhibit 2 page 694 to 695).

4. The applicants did not submit that there was no requirement for an UWMP per se in this case, but rather submitted that the LWMP, plus information that would be provided in complying with various other conditions of the residential subdivision approval would effectively provide all the information that would otherwise be contained in an UWMP.  Mr Scidone does not agree with the applicants' proposition.  He maintained that there was a number of matters of information and detail that would not otherwise be provided if an UWMP was not required.  Of the matters put to him in cross­examination, Mr Scidone did not accept that the groundwater levels provided in the LWMP were sufficient as they were several years, and in some cases 11 years, out of date and could well be significantly different at this point in time and the details of the calculations supporting the necessary diameters of drainage pipes had not been carried out.  Mr Scidone further identified the following information, that the LWMP anticipated would be provided in an UWMP, would not be provided if an UWMP was not produced (ts 75, 1 November 2017):

   FEARIS, MR:  … engineering drawings, nor a geotechnical report? - - - Sorry, repeat the question. 

   So you've listed a numbers of matters in paragraph - - - ? - - - 27.

   [SCIDONE, MR]:  Yes, in subparagraphs (a) through (g). 

   [FEARIS, MR:]  Are any of those matters covered in ­ well, I think 27 says they're not covered in the local water management strategy.  Are they covered in the proposed geotechnical report or engineering drawings? - - -

   [SCIDONE, MR:]  Some of the information will be, as discussed with Mr McKellar.  Some of that information will be, and yes, some of it won't be. 

   So perhaps I have a thought second to the question then? - - - Yes, so back to that question.  Yes.  So there was those two items that I mentioned.  And then paragraph (e).  I was just going for paragraph (e) which refers to page 694 in the LWMS, which refers to the 14 dot points that will be provided:

   …further details provided in an urban water management stage. 

   There's a couple more items there.  However some of those items - and Mr McKellar has indicated, will be providing the geotech report also, or in the hydraulic spreadsheet accompanying engineering drawings.  Additional items that won't be covered in those - by those items or within the LWMS is: 

   Best management practices in regards to water quality; water sensitive and design elements; location of park sections on the ESP to be located within the verges where possible; the exact locations to be determined. 

   Another one is: 

   Ascertain final non-structural water quality improvement measures and treatment frames to be implemented to a minimum two per cent of the connected impervious surface area. 

   So in regards to that point, the urban water management plan would detail areas of treating the stormwater, being to extent of areas of all the roads and footpaths of the area that they are treating.  That information is provided within the urban water management plan.  The next point: 

   Detailed earthworks and stormwater management design including size, location, and design of public open space areas, and integrated flood management capability be provided within the urban water management plan. 

   So there, yes, is a number of items in there that, yes, will be required within the urban water management plan that wouldn't be provided either within the geotechnical report, the engineering drawings, or within the LWMS. 

   [FEARIS, MR:]  Perhaps just to clarify your evidence before under cross-examination, is the reason for redoing the ground water levels that they were last done between nine and 11 years ago? - - -

   [SCIDONE, MR:] Again, I would have to have a look at what the Department of Water's requirements are for how current that information needs to be.  But there is reason in regards to changes in our climate and rainfall levels, yes. 

   And that being the case, the annual average that was referred to? - - - Correct. 

   Is it possible - - - ? - - - The very last - - -

   Sorry - - - Sorry. 

   Please continue? - - - It's very likely that average annual maximum ground water level would differ. 

   [FEARIS, MR:]  Thank you.  I've got no further questions.

5. Mr Ian Bruce McKellar also gave evidence in relation to the need for an UWMP.  Mr McKellar is a Project Manager and Senior Partner in Civil Technology Consulting Civil and Structural Engineers, Land Planners and Licenced Land Surveyor (Civil Technology).  He has considerable experience with road construction and broad acre land subdivisions.  Mr McKellar states that using his engineering expertise and in consultation with other engineers and environmental scientists employed at Civil Technology, he has been the primary author of about 20 Local Water Management Strategies and UWMPs and other reports of similar nature for 21 subdivisions.  The Tribunal is not satisfied that this qualifies Mr McKellar as an expert in relation to the subject matter of urban water management.  The Tribunal does not know to what extent Mr McKellar relied on the appropriately qualified personnel in drafting the water management documents, nor is it aware of the quality of those reports from an engineering and environmental scientist's point of view.  The Tribunal therefore gives greater weight to the opinions of Mr Scidone in relation to this topic.

6. It is made plain by the LWMP that the residential subdivision will result in significant increase in impervious surfaces and therefore runoff volumes leaving the site and that it is necessary to ensure that pre­development peak discharges are maintained.  At page 650 of Exhibit 2, in the LWMP, it is stated:

   Stormwater management is paramount in all levels of planning.  It endeavours to protect the environment, avoid flooding and meet the requirement of sustainable use of water resources. … This [LWMP] provides concept designs, guideline controls and management measures for:

   •Water Quality:  maintain or improve surface and ground water quality.

   •Water Quantity:  maintain the total water cycle balance within developments relative to the pre-development conditions.

   •Water Conservation:  maximise the efficient use of water resources.

   •Ecosystem health:  retain natural drainage systems and protect ecosystem health.

   •Economic Viability:  implement long term economically viable stormwater management systems.

   •Public Health:  minimise public risk, including risk of injury or loss of life.

   •Protection of Property:  protect the built environment from flooding and water logging.

   •Social Values:  recognise and maintain social, aesthetic and cultural values.

   •Development:  deliver best practice stormwater management taking due cognisance of sustainability and precautionary principles.

7. All but the second last of the above dot points are appropriate and reasonable aims to mitigate against the changes that would or might be brought about by the proposed subdivision.  The measures identified in the LWMP that address those aims have a proper planning purpose and are necessary because of the changes brought about by the residential subdivision.

8. The Tribunal is satisfied that there is information that is expressly stated as being necessary to be produced in an UWMP by the LWMP in relation to the site.  The LWMP was drafted by Bisoscience Pty Ltd, which the Tribunal is aware is a company that engages Dr Keating, a well-qualified environmental scientist, to carry out work of this kind.  The Tribunal accepts the evidence of Mr Scidone, which was not effectively challenged, that there is information that would be contained within an UWMP that has not otherwise been produced and will not be produced as part of compliance with one of the other conditions of the residential subdivision approval. 

9. In addition, the design of the residential subdivision as shown in the LWMP (Exhibit 2 page 708) is not identical to the final version of the residential subdivision.  Mr McKellar agreed, in response to questions from Senior Sessional Member Jordan, and it would seem logical, that there would be a need to refine calculations and to further refine the assumptions used in the LWMP (ts 88 ­ 89, 1 November 2017).  While Mr McKellar did not think that those refinements would materially alter any of the planned drainage arrangements, as he is not an expert environmental scientist, the Tribunal is not satisfied that it can rely on this being the case.  The fact that the residential subdivision, in its approved version, is not identical to the form of proposed subdivision on which the LWMP is based, is another reason why the UWMP is necessary to ensure that appropriate stormwater management will in fact occur.

10. As stated above, the applicants did not argue that the information that would be expected in an UWMP is not necessary or appropriate in this case.  In any event, the Tribunal is satisfied that the information, which is necessary to ensure that stormwater is appropriately managed and that groundwater is not contaminated, has a proper planning purpose and has nexus with the residential subdivision.

Condition 26 - landscaping 

1. Ms Dana Kristine Eidsvold, a landscape architect employed by the City gave evidence in relation to condition 26.  Mr Ness, also gave evidence.  The applicants relied on the evidence of their representative, Mr McKellar and of Mr Bashall, in relation to this condition.

2. Mr Bashall and Mr Ness agree that the residential subdivision gives rise to a need to provide public open space for the purposes of providing recreational areas.

3. Ms Eidsvold referred to Element 4 - R37 of Liveable Neighbourhoods (Exhibit 2, page 472) where it states:

   The WAPC will generally require public open space to be developed by a subdivider to a minimum standard that may include full earthworks, basic reticulation, grassing of key areas, pathways that form part of the overall pedestrian and/or cycle network, and maintenance for two summers.  Development of public open space should be carried out in accordance with a landscape plan first approved by the local government.  The WAPC may not require development of public open space where land is in fragmented ownership, where it is restricted use public open space, and where climatic variations do not require such development.

4. Ms Eidsvold went on to explain that Liveable Neighbourhoods classifies open space into three main categories based on the size of the space.  The classification of public open space is used to determine the minimum standard of what is required to be provided within the space to accommodate the activities that Liveable Neighbourhoods contemplates in each classification of public open space.

5. Ms Eidsvold stated that the public open space identified within the residential lot subdivision would be classified as a neighbourhood park under Liveable Neighbourhoods as it is 4,241m² in area.  Liveable Neighbourhoods, at Element 4 - R15, provides the following in relation to Neighbourhood parks (Exhibit 2, page 469):

   Neighbourhood parks of around 3000-5000m² or larger should be provided, each serving about 600-800 dwellings, and be a maximum 400 m walk from most dwellings.  These larger parks should be located between or towards the edge of neighbourhoods rather than at the core.

6. In Ms Eidsvold's opinion, based on what is contained in Liveable Neighbourhoods in relation to public open space, and current industry practice (based on subdivisions within the City over the previous five years), is that the function of a neighbourhood park is to provide a space for both active and passive recreational use and service the needs of a neighbourhood, not just the immediate surrounding residents.  Neighbourhood parks are to provide for active recreation, which means that a large irrigated turf area should be provided and/or some formal sports equipment to encourage more structured recreation, such as a half-court basketball court and AFL goal posts.  It should also provide for children's play, which means that a playground should be provided.  Ms Eidsvold also considered a neighbourhood park should contain a formalised picnic area with tables, a shelter and barbeque provided.

7. However, in cross-examination Ms Eidsvold clarified that the things identified above are what she has commonly seen in landscape plans for public open space presented to the City and are not necessarily what would be required as a minimum standard of landscaping (ts 49 ­ 53, 1 November 2017).

8. Mr Bashall did not disagree that the provision of public open space has a proper planning purpose and a requirement for public open space in this case is brought about by the introduction of more residential lots to the area.  However, Mr Bashall is of the view that the minimum standard for recreational areas, as required by Liveable Neighbourhoods, is turf, reticulation and footpaths.  Mr Bashall says that most developers choose to provide more than the minimum standard in order to make their lots more desirable, but that higher standard is not required under the policy framework. 

9. Having regard to R37 of Liveable Neighbourhoods, which is the only policy that gives any guidance on what standard of development of recreational areas is required, the Tribunal agrees with Mr Bashall.  However, Liveable Neighbourhoods refers to earthworks as well, so we would add that any necessary earthworks (particularly if the space is also to be used for the purposes of drainage) are also part of the minimum standard identified in Liveable Neighbourhoods.

10. The Tribunal is satisfied that the requirement to develop public open space so as to be useable as public open space has a proper planning purpose and has sufficient nexus with the proposed subdivision. 

11. The applicants submit that the fact that condition 26 does not specify which public open space is to be developed and precisely how each piece of public open space should be developed means that the condition is void for uncertainty.  Having regard to the Tribunal's finding in relation to the minimum standard of landscaping required below, the Tribunal is not persuaded by this submission.  The minimum standard of landscaping is the standard of development required and it is required in relation to all of the public open spaces.  This is necessary so that they can act as public open spaces for the people brought to the area by the creation of 143 residential lots. 

12. The applicants also submit that the condition should be deleted because the respondent has not satisfied the Tribunal that the exceptions in Liveable Neighbourhoods and DC 2.3 where the respondent may not require development of public open space do not apply in this case. 

13. Two things might be said to that submission.  Firstly, in review proceedings in the Tribunal no party has an onus, or burden, of proving its case, unless the statutory provisions conferring the original decision­maker's power impart a requirement for such an onus or burden or proof:  Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83, at [115] ­ [125]. There is nothing in Pt 10 of the PD Act (in which the provisions relating to subdivision approval are contained) or Pt 14 of the PD Act (which contains the provisions relating to applications to the Tribunal for review) that create any onus or burden of proof on any party. The Tribunal is charged with determining the correct and preferable decision.

1. Secondly, both expert town planners agreed that the need to provide public open space when creating residential subdivisions has a proper planning purpose and in this case the creation of 143 lots provides a need to provide public open space.  There was no evidence before the Tribunal that could provide any foundation for a submission that the amount of public open space and/or the location of the public open space was in some way unreasonable.  If the open space is not developed to a minimum standard it is not able to be effective in providing the recreation space that is needed for the increased residents brought to the area.  The provision of public open space is meaningless if it is not suitable to be used for its intended purpose.  The policy framework, and in particular Liveable Neighbourhoods, make it clear that public open space needs to be more than just dirt.  It is to a large degree a matter of common sense that for a public area to work as a recreational space it needs to be developed in some way.  The Tribunal is satisfied, and finds, that the development of open space, to at least a minimum standard as identified in Liveable Neighbourhoods, has a proper planning purpose founded in the planning framework and reasonably and fairly relates to likely consequences of this subdivision.

2. Mr Bashall considers that, while most developers will choose to provide a higher standard of landscaping, the minimum standard is identified in Liveable Neighbourhoods and needs no further explanation.  In those circumstances, subject to what we say below in relation to the lack of clarity of the condition, the Tribunal is satisfied that the requirement to develop the public open space is not an inherently unknowable requirement.

3. The Tribunal is satisfied that condition 26, as currently worded, is too vague and lacks clarity.  Having said that, if it is amended to identify that the public open space must be developed to at least the minimum standard identified in R37 of Liveable Neighbourhoods, then it will be sufficiently clear what is required as a minimum, whilst still allowing for flexibility for the developer to provide additional landscaping and structures if it wishes to do so.

4. The applicants submit that the Tribunal may only consider the conditions as imposed, and that it may not consider amending them other than as proposed by the parties by consent.  The applicants assert, without providing any explanation as to why or how, that to consider a condition that is different to either the condition imposed or one identified in the parties' statements of issues facts and contentions is somehow a denial of procedural fairness.

5. Mr Bashall, the town planner engaged by the applicants, plainly and clearly asserted that the condition should be understood as requiring the minimum level of development in accordance with the terms of R37 of Liveable Neighbourhoods.  To assert that for the Tribunal to amend the condition on the basis that the Tribunal accepts Mr Bashall's position on this issue to be correct, cannot be anything other than one of a number of potential outcomes that the parties must have expected.  We are at a loss to understand how it can be said that to make a finding based on the evidence lead by the applicants, that does not depart from the evidence, is somehow surprising or in any way prejudicial.

6. In relation to the two year maintenance requirement, Ms Eidsvold stated that there were a number of reasons for this.  Firstly, it ensures that proper landscape specifications, installation methods and horticultural practices have been adhered to during the construction of the public open space and installation of the landscaping.  Secondly, the two year period helps to ensure that the landscaping is properly established prior to the City accepting handover of the public open space.  Adequate landscape establishment is critical for the long-term health and performance of plants, trees and turf and generally a two summer period is the desired time frame required to ensure that landscaping is established from a horticultural perspective.  Thirdly, the two year time period allows the City to undertake forward planning for future asset management of the public open space and allows time for the local government to prepare budget estimates for the ongoing maintenance of the public open space.

7. Mr McKellar has considerable experience with road construction and broad acre land subdivisions.  He does not have any landscape or horticultural qualifications or experience.

8. Mr McKellar stated in his witness statement (Exhibit 9) that in this case the site is held by two owners and the location of the public open space is such that only one of the owners will bear the expense involved in satisfying condition 26, which he believes is unfair.  In the Tribunal's view, the proposed subdivision is a single proposal and how the landowners choose to frame their separate obligations in their collaborative subdivision application is a matter for them. 

9. Mr McKellar also states that the requirement to maintain public open space after subdivision is unreasonable because a subdivider should be obliged only to handover capital works at completion of the subdivision and the City is then obliged to take over maintenance of the space.  Other than the statement as to the ownership of land, none of these statements are evidence; rather they are submissions and the Tribunal accepts them as such.

10. Mr McKellar makes a number of other statements in his witness statement in relation to his understanding of what is required by Liveable Neighbourhoods.  Although Mr McKellar does have considerable experience, from a developer's perspective, of broadacre subdivision, he does not state that he has any particular experience or qualifications that would allow him to give an expert opinion in relation to the interpretation of town planning policies concerning subdivision.  Indeed, the question of how the text of a policy should be interpreted is not one that can be the subject of any such expert evidence in any event.  A town planner may give evidence in relation to how a local government applies a policy provision, and that may be relevant to the determination of how much weight should be given to a particular policy or policy provision, or may be relevant to issues such as consistency in decision­making, but those are different matters.  The Tribunal therefore gives no weight to this evidence.

11. The Tribunal is satisfied that a two year maintenance period is identified as expected in Liveable Neighbourhoods.  The reasoning for that requirement as identified by Ms Eidsvold is rational and reasonable.  The Tribunal has previously stated that a requirement on a developer to maintain public open space for a period of two years is a reasonable and valid condition:  LWP Property Group Pty Ltd and City of Swan [2006] WASAT 308 at [17] ­ [20]. However, it appears that in that case submissions of the type made in this case as follows, were not considered.

12. The applicants submit that a condition cannot require the developer to carry out work after the subdivision has been completed, as conditions have to be 'cleared' or completed before separate titles for each of the new lots can be obtained.  While it is correct that all the conditions of a subdivision approval must be carried out before the respondent will issue an endorsed plan, which is in turn necessary to obtain separate titles, this is not necessarily an impediment to a condition such as condition 26.  Condition 26 requires 'arrangements' to be made for the maintenance of the public open space 'through the implementation of an approved landscape plan'.  These things can be done and the condition 'cleared' at the time the subdivision is complete.  The Tribunal is not satisfied that, just because the landscape plan will envisage tasks to be carried out after the subdivision has been approved, this somehow makes an otherwise valid condition invalid.

13. The applicants also submit that pursuant to s 46(1) of the Land Administration Act 1997 (WA) it is for the Minister to decide who has the care, control and management of the public open spaces once the land is ceded as required by condition 25. It is submitted that until such a decision is made, no party can lawfully implement any plan for maintenance of the public open spaces. In addition, if an order is made, presumably vesting care and control of the public open space to the local government, the obligation to care, control and manage the public open spaces legally belongs to the person/entity who is vested with it. The applicant submits that in light of those things, it is unreasonable and unlawful to 'thrust upon a private citizen the public duty of the local government to maintain the park'.

14. The Tribunal accepts this submission.  Having said that, one of the purposes of the condition, of ensuring that developers carry out the development of public open spaces properly, is a sound and reasonable one.  The other apparent purpose of ensuring that the local government has a two year period to arrange to have funding in place to take over the maintenance is not a proper planning purpose.  As the need for the public open space is brought about by the residential lots created by it, it is reasonable that the identified proper planning purpose should be implemented in some way.

15. The Tribunal would be satisfied that a condition that required entry into a deed of agreement between the applicants and the relevant local government whereby the developer is required to reimburse the local government for any replacements of landscaping and/or vegetation within a two year period caused by unsatisfactory, improper or inadequate development works and vegetation would address the proper planning purpose of ensuring public open spaces are developed satisfactorily and are appropriately established and would fairly and reasonably relate to the subdivision.

16. The applicants submit that the Tribunal is required to consider only the conditions before it, and if they are invalid, the Tribunal's only option is to delete the condition.  The Tribunal is not persuaded that this is correct.  The Tribunal's task is to make the correct and preferable decision, standing in the shoes of the decision­maker, based on the law and the evidence at the time of its decision, so long as the Tribunal is not asked to consider something in substance different from the application before it.  In our view, consideration of the amendment of condition 26 as contemplated above is not in substance different to the current condition 26. 

17. The correct and preferable decision is that condition 26 should be amended in a way as contemplated above.

Condition 36 ­ contribution towards cost of school site

1. Mr Michael Gordon Cooper, an employee of the Department of Education (Department) working in the Strategic Asset Planning branch, gave evidence in relation to condition 36.

2. Mr Cooper stated that when subdivision applications are referred to the Department it has three standard conditions that it considers requesting be imposed on subdivision approval.  The standard conditions require either:

   a)the transfer of land free of cost to the Department for the provision of a primary school site;

   b)the setting aside land as a separate lot for acquisition of the land by the Department; or

   c)a pro-rata contribution towards the cost of the acquisition of a primary school site. 

3. He stated that the Department used these conditions to ensure that the cost of providing necessary primary schools sites was fairly shared between subdividers in the relevant locality. 

4. The Tribunal notes that, while the first standard condition is not the condition that was imposed in this case, it was initially difficult to understand when that condition would be imposed or how it works in reality.  Mr Cooper was asked about the condition in evidence and he stated that the condition would be imposed when the subdivider did not have the primary school site within the land being subdivided (on which the condition is imposed) but that it requires the landowner to cede some other land at some future time.  The Tribunal did not understand what Mr Cooper meant by this as the statement appears, on its face, to be nonsensical.  However, the Tribunal suspects that Mr Cooper was mistaken about, or misunderstood, when that standard condition is applicable.  Logically, if the Department's aim is to ensure fair distribution of the cost of acquiring a primary school site, which Mr Cooper stated is the case, a condition requiring ceding of land should be imposed if the subdivider is subdividing land that includes part of the school site in circumstances where the contribution that the landowner would otherwise need to pay (having regard to the amount of land outside the school site being subdivided) was equal to the value of the part of the land that was within the school site.  In this way, the landowner's ceding of part of his/her land without compensation is set off against the pro-rata contribution that would otherwise have been payable in respect of the remainder of the owner's land.  Mr Cooper's responses in cross­examination in relation to whether the Department would potentially obtain the primary school site for free was entirely consistent with this understanding of the standard condition (ts 106, 1 November 2017).

5. In relation to the process for the determination of catchment boundaries for primary schools, Mr Cooper explains as follows.  The Department works on the basis that one primary school site is required for every 1,500 to 1,800 housing units.  The Department identifies the catchment boundary for a particular school site based on a number of factors including the proposed housing unit yield, principles in Liveable Neighbourhoods in relation to walking distance from housing units and physical barriers such as waterways, parks, railways and major roads.  The catchment boundary is also based on the estimated number of primary school students expected to come from the housing units to be built in the area.  The ratio of primary school students per dwelling is based on data from the Australian Bureau of Statistics for the particular area in question.  Mr Cooper explains that the catchment boundary for a school site is different to the local intake area boundary.  The former is used by the Department for planning purposes.  The local intake area boundary is the boundary that determines which students may be enrolled in a particular school and is determined much closer to the point when the school is constructed.  The catchment boundary and the local intake area for a school site may not necessarily be the same.

6. Mr Cooper explains that a four hectare site for a primary school was identified in the Anketell North Local Structure Plan, which was endorsed by the WAPC in 2015.  That site is located on three separate parcels of land, none of which is owned by the applicants.  Mr Cooper stated that the primary school site would not be acquired until the land on which the site is located is itself subdivided.  In the meantime, the Department requests that conditions requiring pro-rata contributions from other landowners who subdivide land within the catchment area. 

7. Mr Cooper stated that the owners of the land identified for the primary school site would, in the future, be required to cede the land free of cost or set the land aside for acquisition by the Department (Exhibit 5 page 48).  However, when it was put to him that the Department may obtain the primary school site for free, he denied that proposition (ts 106, 1 November 2017).  Mr Cooper went on to say (ts 106, 1 November 2017):

   So therefore, you will condition the approval of those lots to give it up for a cost.  Is that correct? - - - The lots that own the ­ have the portion of the primary school site on their land ownership.

   Will be required to give it up - - - ? - - - Yes.

   - - - free of cost.  Yes? - - - Yes.

   So what money do you need if you're getting it free of cost? - - - Because they don't ­ the principal is based on a principal called oversupply.  So let's take, say, lot 35.  It has half the primary school site.  And they may be developing 50 lots.  So their free-of-cost portion is relative to their 50 lots. 

8. Although Mr Cooper then agrees that this means that 'in principle, the whole site is given up free of cost' (ts 106, 1 November 2017), in context the Tribunal did not understand this to mean that the landowners are not paid for the land.  Rather, it means that the Department is reimbursed for its acquisition of the land for the primary school site by way of the pro-rata contributions or the ceding of a portion of land (where a larger portion is being subdivided) of other subdividers in the area.  This was confirmed by Mr Cooper's further explanation of his answer on further questioning by the applicants' representative (ts 107, 1 November 2017).

9. It was clarified in questioning that Mr Cooper's calculations in his witness statement (Exhibit 5) are based on a mistake in relation to the number of lots within the catchment area.  While he states there are 1,330 lots in the catchment area in his witness statement, it was put to him, and ultimately he accepted, that in fact there are more lots in the catchment area.  In addition, there are three areas in the catchment area that Mr Cooper did not include as capable of producing additional lots.  Mr Ness and Mr Bashall agree that this area of land is not incapable of development and therefore there is potential for further residential lots to be created from this land.  It is not currently known how many such lots might be yielded.  Mr Ness considers that the ultimate use of this land is quite unknown at this time as it may be used for purposes other than residential and development as residential land would require appropriate zoning and structure planning before it could occur.

10. The applicants submit that condition 36 should be removed for a number of reasons.  Firstly, the Department has a statutory duty to provide schools and therefore there is no nexus between the condition and the proposed subdivision.  Secondly, the calculation of the amount of the contribution is arbitary, based on incorrect figures and has no transparency or means of review making condition 36 an unreasonable one.

11. The applicants' argument in relation to nexus is misconceived.  The fact that the Department has a requirement to provide schools under the School Education Act 1999 (WA) does not detract from the fact that the proposed subdivision will create 143 new residential lots out of three lots, thereby significantly increasing the number of children to whom education must be provided in the area. It is submitted that residents in the proposed new lots will initially attend an existing school in the area and this proves that there is no need for a school created by the proposed subdivision. As Mr Cooper said in evidence, however, the introduction of more residents will create the need to open more schools in the future.

12. Mr Ness and Mr Bashall accepted, as 'a general concept' that requiring contributions towards infrastructure, such as primary schools, when a subdivision is creating extra residential lots has a proper planning purpose:  see Exhibit 5 and ts 59 ­ 90, 2 November 2017.

13. The PD Act contemplates that a condition can be imposed requiring a portion of land to be vested in the Crown for a public purpose related to the subdivision: s 152(1) of the PD Act. In addition, there has long been a policy framework that supports a requirement that residential subdivisions should contribute to the cost of a primary school site in proportion to the numbers of residential lots created: see SPP 3.6, DC 1.1, DC 2.4 and Liveable Neighbourhoods. The Tribunal has long held that this planning framework supports the imposition of a condition such as condition 36 is a condition imposed for a proper planning purpose: Tillbrook and Western Australian Planning Commission [2011] WASAT 130, at [32], [34] and [52] (Tillbrook). 

1. For a condition of this kind to be reasonable, there is a need for the calculation of the contribution to be proportionate to the demand potentially created having regard to the number of residential lots created.  Where the condition lacks transparency, does not accurately reflect the relevant proportion of the actual cost of the school site that is to be purchased and is not proportionate to the demand created by the subdivision, the condition will not fairly and reasonably relate to the proposed subdivision:  Tillbrook, [47] ­ [51].

2. Condition 36 is, as the applicants submit, unascertainable in its current form.  It is apparent, from the evidence before the Tribunal, that if the applicants had attempted to meet that condition, they would have been asked to pay a contribution that the Tribunal cannot ascertain would fairly and reasonably relate to the demand created by the proposed subdivision. 

3. In this way, the situation in this matter is similar to that in the Tillbrook case.  In that case, the Tribunal determined that, as the condition had a proper planning purpose, was based on a sound and consistently applied policy basis, and was aimed at fairly and equitably sharing costs amongst all relevant developers in the area, a new condition should be substituted that revealed the actual contribution required to be paid.  The Tribunal accepts that the reasoning underlying the decision in Tillbrook still stands.  However, the Department and the respondent have known, since Tillbrook was decided in 2011, that it is necessary for a condition requiring a contribution towards a school site to specifically identify the contribution required and/or the standard or formula from which the calculation will be arrived at, and to require a contribution that properly relates to the proposed subdivision.  Yet it appears nothing has been done to address those issues.  There is no public document or policy which identifies clearly how contributions to school sites will be calculated, nor is there any publication of the amount paid for a school site, or where it is not yet purchased, the valuation of the land identified for a school site.  In addition, given the opportunity to bring evidence that could satisfactorily identify a calculation that does require a contribution that fairly and reasonably relates to the proposed subdivision, the respondent was not able to satisfy the Tribunal that the condition in this case does in fact do so.  The respondent (with advice from the Department) could have chosen to adopt some different type of calculation or standard if, as was the case in this instance, where the exact lot yield of the catchment area is unable to be ascertained, which allowed calculation of a contribution that was proportionate the demand created by the proposed subdivision ­ yet it did not do so.  It would not have been necessary, and the Tribunal should not be taken as requiring, to identify the exact yield of lots within the relevant catchment area.  There is some room for estimation, as we are of the view that for the condition to reasonably and fairly relate will not require an unreasonable level of exactitude.  However, in this case, there was simply no attempt to make any assessment of the potential lot yield of a not insignificant area of land within the catchment area or, alternatively, identify some other basis for fairly and reasonably linking the proportionate cost of the schools site to the demand created by the proposed subdivision.

4. In these unusual circumstances, where it was not possible to establish, even after receiving evidence at a hearing, what contribution is required by the condition, or how that contribution relates to the demand created by the proposed subdivision, the Tribunal is not persuaded that it is appropriate to require the parties to agree to an amended condition as contemplated in the Tillbrook decision. 

5. While it would not ordinarily be the correct and preferable decision to delete a condition that does have a proper planning purpose and, in most cases will have a proper nexus with a proposed subdivision, the circumstances in this case are such that, perhaps almost uniquely, in this case the opposite is true.  While it is not fair and equitable that the applicants will thereby avoid having to pay their fair share of the cost of the necessary school site, at least this will not cause unfairness on later developers.  This is because it is the State that will have to provide the applicants' share of the school site as the contributions of any later developers could not include this part of the cost because if this was sought, those later contributions would not reasonably relate to the demand created by those subdivisions.

6. Condition 36 is uncertain and in fact, on the evidence, unascertainable, and the Tribunal is not able to ascertain that it fairly and reasonably relates to the demand actually created by the proposed subdivision.  It is therefore not a valid condition and should be deleted.

DR 136/2015

1. Mr McKirdy's evidence in relation to conditions 2 and 5 has been summarised above already.

2. In essence, he says that Thomas Road is a busy and strategically important freight link that will become increasingly busy in the future.  It is important, in terms of safety and efficiency for the number of access points to Thomas Road to be minimised.  The Anketell South Structure Plan identifies three access points to Thomas Road in the structure plan area and these are sufficient for the structure plan area.

3. Allowing direct access from proposed Lot 1 (the commercial lot) will compromise the intended road network planning because it will mean that traffic accessing the commercial business(es) that will be developed in the commercial lot will enter the commercial lot directly from Thomas Road rather than from the spine road as envisaged in the local structure plan.

4. In addition, creating an access point from Thomas Road into proposed Lot 1, in circumstances where there will ultimately also be the spine road access point as envisaged in the local structure plan (because this access point is contained in the residential subdivision) means that there will be two intersections on Thomas Road in very close proximity to each other.  This potentially causes confusion and unsafe movements where drivers attempt to correct mistakes in relation to which access point they need to use.

5. The applicants' submission is that the commercial subdivision involves merely a boundary realignment.  There currently exists two lots with each having access to Thomas Road and after the proposed subdivision is completed there will remain two lots, each having access to Thomas Road.  There is, therefore, no change caused or likely to be caused by the subdivision that warrants a requirement to construct all or part of the spine road, which sits outside of proposed Lot 1.

6. In support of this submission, it was put to Mr McKirdy that the commercial subdivision did not propose any new road and did not in any way change the existing situation in relation to access from Thomas Road.  Mr McKirdy accepted that the proposed subdivision did not propose any internal subdivision roads.  However, he did not accept the proposition that it did not change the existing situation in relation to access from Thomas Road.  Mr McKirdy said (ts 126, 1  November 2017):

   … So it's the use of the land.  So the existing land is undeveloped.  So the volume of traffic coming and going from it is negligible, before the access arrangement.  They are very simple.  If a commercial development was developed on this site, then it would necessarily have a much more formalised access arrangement.

7. The Tribunal then asked Mr McKirdy whether it was the subdivision, or the consequential development that would follow subdivision that would create the need for additional vehicles to access proposed Lot 1, to which Mr McKirdy replied (ts 126 ­ 127, 1 November 2017):

   … Yes, but I suppose in a ­ I suppose a road engineering area, what we would like to set up is a situation through orderly planning, that we understand the access strategy for an area.  That's what works through the structure planning process.  And, then, from there, that informs the subdivision.  And, then, the subdivision then informs obviously the next stage, being the development.  If you can line all of those up in an orderly manner, then the whole system can be processed much easier, and much more effectively.  If this site was to develop in isolation of all of that other planning at some point in the future, and contemplate a different access arrangement, then we're in an area of real problem.

8. And further on (ts 127 ­ 128, 1 November 2017):

   It's not separating it into two lots that's an issue.  I think Mr McKellar has identified that there is no road.  Unfortunately, what this sets up is exactly what Mr McKellar is saying, is that it then sets up a situation where two lots have direct access, and one of those potentially could be developed in isolation of the other and, therefore, in isolation of the proposed access strategy for that broader area.

9. Later, in response to questioning from the Tribunal, Mr McKirdy agreed that although there would only be two lots if the commercial subdivision proceeded, there would in fact by three areas of land that would each need access from Thomas Road because the 'balance lot' is in two separate and nonadjacent parts.  However, as was ultimately clarified by the Tribunal, if the Tribunal is persuaded that condition 5 should be imposed on the commercial subdivision, there would remain only two access points off Thomas Road as access from the small balance lot onto Thomas Road would be prohibited.

10. Mr Ness states that the purpose of condition 8 is to limit direct vehicular access from the proposed lots on to Thomas Road.  In his view, the condition as currently worded does not fully achieve this purpose.  Mr Ness proposes that condition 8 should be amended to refer to the proposed balance lot as well as proposed Lot 1.

11. The applicants' submission in relation to condition 2 is that the proposed subdivision does not bring about a need to set aside land for future acquisition. 

12. Mr Ness states that separating the land identified for the widening of Thomas Road is consistent with orderly and proper planning as it will make the future acquisition process more efficient and will assist the owners of the new lots to understand what land they can and cannot develop on.  Mr Ness accepted that any potential owners of the proposed lots would be able to identify that land is reserved for the future widening of Thomas Road by looking at the MRS and the Structure Plan, however he considered that it would be appropriate to take the 'next step' by separating out the land.  Mr Ness considered the setting aside of this land appropriate in the context of requiring access to proposed Lot 1 from a new subdivisional road rather than from Thomas Road.

13. Mr Ness is of the view that the creation of proposed Lot 1 would be likely to increase the prospect of commercial development on that lot and as a result it would cause increased traffic to the area.  That increased traffic may bring forward the need to widen Thomas Road according to Mr Ness.

14. The Tribunal is satisfied that Thomas Road is, or imminently will be, a Primary Regional Road.  The Tribunal accepts Mr Ness' uncontradicted evidence that it is desirable, in terms of safety and efficiency, to minimise direct vehicular access from Thomas Road. 

15. The Tribunal is also satisfied that an area of land has been identified in the MRS, and has also been identified in the Anketell South Structure Plan, for the purposes of future road widening of Thomas Road.  However, there is no indication of when that work will occur.  It is not on any current works list.

16. The Tribunal is not persuaded that there is anything brought about by the commercial subdivision that warrants creation of new lots to reflect the proposed road widening shown on the MRS.  Any purchaser of the new lots can easily find out about the proposed road widening with ordinary due diligence.  The local government can be expected to take the proposed road widening into account in making any development application decisions.  The commercial subdivision does not, of itself, potentially impact or prejudice the ability for the proposed future road widening to occur.

17. Condition 2 should be deleted.

18. Unlike in the residential subdivision, there will not be, at least until Thomas Road is widened, any physical barrier to direct vehicular access from Thomas Road by way of fencing.  However, the Tribunal accepts the applicants' submission that it is not until the proposed Lot 1 is developed that there will be any need to prevent access directly from Thomas Road.  While the proposed Lot 1 is being used in the same way as it is currently being used, there is no reason that can be linked to the fact of subdivision, to prevent the existing right of access. For this reason condition 5 should be deleted.

Condition 1 ­ subdivisional road

1. The applicants submit that there is nothing in the commercial subdivision, which is simply a boundary realignment, which creates a need for any subdivisional road.  Further there is no subdivisional road identified in the plan of the commercial subdivision, and no basis to insert one.

2. Mr Bashall is of the view that development of a commercial nature could be approved on the part of the site that is intended to become proposed Lot 1 currently as well as if the subdivision proceeds.  Therefore, he says, there is no change brought about by the commercial subdivsion that warrants the requirement of a subdivisional road.

3. The fact is, if condition 1 were not imposed, once proposed Lot 1 becomes a separate lot, access to the lot would have to come directly off Thomas Road, unless/until the proposed subdivisional road in the residential subdivision is built.  The applicants say that is the existing situation and should remain the situation following the subdivision.

4. In Mr Bashall's opinion, development approval is likely to occur for commercial development on proposed Lot 1 with access directly off Thomas Road given that the lot would, at least for the time being, have no other possible access.  Mr Ness considers that the decision­maker would have regard to the structure plan and the identified access of the proposed subdivisional road in the balance lot and refuse development that proposed access off Thomas Road directly. 

5. The Tribunal is of the view that Mr Bashall's view is the more likely outcome given that, if the commercial subdivision is approved without condition 1 in place, proposed Lot 1 has no access other than off Thomas Road and it would not be reasonable to in effect sterilise proposed Lot 1 from any development until a road on a separate lot and presumably in different ownership is built.

6. Both of the town planners agree, and the Tribunal finds that the commercial subdivision is likely to facilitate commercial development of proposed Lot 1.

7. The Tribunal is satisfied that the strategic planning that has occurred, through the structure plan process, plans for access to proposed Lot 1 to occur from a new subdivisional road that abuts the boundaries of proposed Lot 1. 

8. The Tribunal is satisfied that the commercial subdivision is a step in the process of implementing the planning identified in Anketell North Structure Plan.  The Tribunal accepts that it is, in some cases, appropriate to have regard to the changes that a proposed subdivision is likely to produce by looking at the subdivision in its full context: Sin­Aus­Bel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67 at [44].

9. Unless the residential subdivision occurs at the same time as the commercial subdivision, which of course cannot be guaranteed, if that step proceeds without providing for access to proposed Lot 1 from a subdivisional road in the balance lot, it is likely that the planned access as contemplated in the structure plan will not occur, or at least has a real prospect of not occurring.  That is because development of proposed Lot 1 would have to incorporate access directly from Thomas Road, as the lot has no other road frontage.  If any substantial development occurs, the risk is that it will no longer be physically possible to obtain access from the subdivisional road when it is built sometime in the future.  This is the antithesis of proper and orderly planning.

10. The Tribunal is satisfied that the proposed subdivision does, by facilitation commercial development of proposed Lot 1, bring about a need to provide access to proposed Lot 1 from the subdivisional road contemplated in the structure plan.  It would be unreasonable to require development of all of the proposed subdivisional road, as the need for all of that road does not arise from this subdivision.  There is a need to construct just as much of that subdivisional road as is necessary to provide access into the proposed lot via the subdivisional road.  It can, at least until the residential subdivision proceeds, terminate in a temporary cul-de-sac sufficient in size to allow service vehicles to turn if necessary.

11. In order to provide sufficient clarity, the Tribunal considers condition 1 should be amended to make clear that the subdivisional road that is required to be constructed is to be in the location of the subdivisional road identified in the Anketell South Structure Plan but only need be as long as necessary to reasonably facilitate vehicular access into proposed Lot 1 from the subdivisional road and provide for a sufficient turning head for any service vehicles.

Orders

DR 104 of 2015

With the consent of both parties the Tribunal orders that:

1.The respondent's decision to conditionally approve subdivision of Lots 1, 2 and 3 Thomas Road and part Lot 13 Thomas Road, Anketell for 43 lots for residential purposes, a service commercial lot, a public purposes Lot for a community facility, for public open space reserves, to balance title lots and associated road reserves dated 11 December 2015 is varied as follows:

a)Conditions 5 is amended as follows:

The land required for the widening of Thomas Road as determined by the plan of subdivision is to be set aside as a separate lot(s) for acquisition pending future road widening requirements. (Western Australian Planning Commission);

b)Condition 6 of subdivision approval for 43 lots for residential purposes, a service commercial lot, a public purposes Lot for a community facility, for public open space reserves, to balance title lots and associated road reserves dated 11 December 2015 is deleted;

c)Condition 11 of subdivision approval for 43 lots for residential purposes, a service commercial lot, a public purposes lot for a community facility, for public open space reserves, to balance title lots and associated road reserves dated 11 December 2015 is amended as follows:

A notification, pursuant to s 70A of the Transfer of Land Act 1893 (WA) is to be placed on the certificates of title of the proposed lots affected by noise beyond the target prescribed in State Planning Policy 5.4 ­ Road and Rail Transport Noise and Freight Considerations in Land Use Planning, as identified in the approved Transport Noise Assessment required by Condition 10, advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows:

The lot is situated in the vicinity of transport corridor and is affected by transport noise;

d)Condition 30 of subdivision approval for 43 lots for residential purposes, a service commercial lot, a public purposes  Lot for a community facility, for public open space reserves, to balance title lots and associated road reserves dated 11 December 2015 is amended as follows:

Uniform fencing being constructed along the boundary of all lots abutting public open space, the south side boundaries of proposed Lots 55 and 56 and the pedestrian access way (Local Government).

The Tribunal further orders that:

1.The respondent's decision to conditionally approve subdivision of Lots 1, 2 and 3 Thomas Road and part Lot 13 Thomas Road, Anketell for 43 lots for residential purposes, a service commercial lot, a public purposes Lot for a community facility, for public open space reserves, to balance title lots and associated road reserves dated 11 December 2015 is further varied as follows:

a)     Condition 8 is deleted;

b)    Condition 26 is to be varied in order to require an agreement between the parties whereby the developer is required to reimburse the local government for any replacements of landscaping and/or vegetation within a two year period caused by unsatisfactory, improper or inadequate development works and vegetation as agreed by the parties, or if unable to be agreed as determined by the Tribunal after hearing from the parties; and

c)     Condition 36 is deleted.

2.The application to vary the approval by deleting condition 15 and part of condition 17 is dismissed.

3.The time within which to complete the subdivision commences from the date of these orders.

DR 136/2015

With the consent of both parties the Tribunal orders that:

1.The respondent's decision to conditionally approve the amalgamation and re-subdivision of Lots 2 and 3 Thomas Road, Anketell to create a commercial lot and a balance title lot dated 11 December 2015 is varied as follows:

a)        Condition 3 is deleted;

b)Condition 6 is deleted; and

c)Condition 7 is deleted.

The Tribunal further orders that:

2.      The respondent's decision to conditionally approve the amalgamation and re-subdivision of Lots 2 and 3 Thomas Road, Anketell to create a commercial lot and a balance title lot dated 11 December 2015 is further varied as follows:

a)Condition 1 is varied as follows:

Engineering drawings and specifications of a subdivisional road are to be submitted, approved and subdivisional works undertaken in accordance with the Anketell South Structure Plan to ensure that proposed Lot 1 has access to a constructed road connected to the local road system, such road being of sufficient length to provide vehicular access to the site and ending in a temporary cul-de-sac until such time as the rest of the subdivisional road identified in the Anketell South Structure Plan is constructed, and such road constructed and drained at the applicant's cost.

b)Condition 2 is deleted; and

3.The time within which to complete the subdivision commences from the date of these orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS L EDDY, MEMBER

8 OCTOBER 2018