Auro Pty Ltd and Western Australian Planning Commission
[2008] WASAT 253
•23 OCTOBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AURO PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 253
MEMBER: MR D R PARRY (SENIOR MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
HEARD: 23 OCTOBER 2008
DELIVERED : 23 OCTOBER 2008
FILE NO/S: DR 65 of 2008
BETWEEN: AURO PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Endorsement of diagram of survey - Whether standard subdivision condition requiring each lot to have frontage and access to via a 'constructed road' requires a public road - Whether easement over private land is adequate - Whether 'constructed' requires constructed to an adequate standard or merely trafficable - Whether emergency access must be hard surfaced
Legislation:
Planning and Development Act 2005 (WA), s 251(4)
Shire of Gingin Town Planning Scheme No 8
Result:
Endorsement on diagram of survey refused
Category: B
Representation:
Counsel:
Applicant: Mr M J Hardy
Respondent: Ms C A Ide with Ms K A T Pedersen
Solicitors:
Applicant: Hardy Bowen
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
A subdivider sought review of the refusal to endorse a deposited plan of subdivision. Extensive areas of the constructed subdivision roads, and of subdivision roads in adjoining subdivisions intended to provide access from the subdivision to the local road system, are defective. The subdivision roads in the adjoining subdivisions are not public roads.
The key issue in the proceedings was whether a standard subdivision condition requiring lots to be provided with frontage to a 'constructed road' connected by a 'constructed road' to the local road system was satisfied so as to enable endorsement of the deposited plan. A further issue was whether an emergency access easement had to be hard surfaced.
The Tribunal gave an oral decision in which it refused to endorse the deposited plan. The Tribunal determined that a 'constructed road' relevantly means a public road constructed to an adequate standard. The Tribunal determined that it would not be appropriate to endorse the deposited plan subject to the payment of a bond to the local government to cover rectification of the roads because the scope and cost of rectification cannot be determined and the position of the local government is unknown.
The Tribunal determined that the emergency access easement should have a compacted gravel surface and erosion measures, but without drainage works, and does not require sealed asphalt.
The Tribunal's reasons for decision, taken from the transcript and edited in minor respects, for clarity and presentation, were as follows.
Introduction
These proceedings involve an application for review brought by Auro Pty Ltd (Auro) under s 251(4) of the Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Western Australian Planning Commission (Commission) to refuse to endorse its approval on a deposited plan of subdivision into 19 lots in respect of Lot 502 Cockram Road, Gingin (site).
The Commission originally refused to endorse the proposed deposited plan of subdivision on the basis that there was a failure to comply with conditions 2, 8, 11, 12, 18 and 25 of the conditions of subdivision approval. During the course of the proceedings, the Commission limited its case to a failure to comply with conditions 2, 18 and 25. The Tribunal considers that the two conditions which are critical to the proper determination of this application are condition 2 and condition 18.
The site is part of the Honneycomb Estate, which is subject to an outine development plan under the Shire of Gingin Town Planning Scheme No 8 (TPS 8). The site is zoned 'Urban Development' under TPS 8. There are three other lots that are also the subject of the outine development plan, known as Lots 501, 503 and 504. The outine development plan shows access from the site via Lot 503 and Lot 504 to Cockram Road and via Cockram Road to Honneycomb Road. There is no direct access from the site to a constructed public road.
Issues for determination
The parties helpfully identified the outstanding issues between them as follows:
1)Whether condition 2 of the conditions endorsed upon the approval issued by the Commission requires roads located within the site to be connected to a gazetted road or, rather, whether it is sufficient for the roads to be connected to other roads with lawful right to use those roads where those other roads connect to gazetted roads.
2)Whether the quality of the existing roads with respect to the site and Lot 503 and Lot 504 are adequate to satisfy condition 2.
3)Whether it is necessary for the emergency access easement to be of hard surface with erosion management control measures in place.
Does condition 2 require access to a gazetted road?
Condition 2 states as follows:
Those lots not fronting an existing road being provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system and such road(s) being constructed and drained at the applicant/owner's cost. As an alternative the WAPC is prepared to accept the applicant/owner paying to the local government the cost of such roadworks as estimated by the local government, subject to the local government providing formal assurance to the WAPC confirming that the works will be completed within a reasonable period as agreed by the WAPC. (Local Government).
Mr Michael Hardy, counsel for Auro, submits that the requirement in condition 2 for each lot to be provided with frontage to a constructed road connected by a constructed road to the local road system, does not necessitate the road at the frontage or at the connection to be a gazetted road. Rather, Mr Hardy submits, it is necessary only for there to be lawful access from the lot to a gazetted road, whether adjacent or not. Mr Hardy anticipated in his written submissions that evidence would be provided to the Tribunal of consent to use roads on Lot 503 and Lot 504 while they remain in private ownership. As it turns out, Auro was unable to provide such evidence, but Mr Hardy nevertheless submits that lawful access through an easement would be adequate to satisfy condition 2.
The Tribunal does not consider that an easement providing a right of carriageway over Lot 503 and Lot 504 would satisfy condition 2. Condition 2 is expressed in a standard way. It is implicit in condition 2 that the lots have access to a public road. This is apparent from the reference to 'road' itself, which is defined in the PD Act to mean 'a public thoroughfare for vehicles (as defined in the Road Traffic Act 1974 (WA)) or pedestrians'. Furthermore, not only is access to be obtained through roads, but services to the proposed lots are provided through roads. Public ownership of roads is generally necessary to ensure ongoing access through proper maintenance of the roads and continued provision of essential services.
This is not to say that a condition of subdivision approval could not be worded such that, because of the particular circumstances of a case, access via a nongazetted road would be contemplated. However, we do not consider that the standard condition, that is condition 2, admits such a construction. It requires access of each lot to a public road and access through public roads to the local road system in order to satisfy the condition.
Is the quality of the existing roads adequate to satisfy condition 2?
The parties jointly presented evidence from Mr Peter Royle, a civil engineer employed by McDowall Affleck, engineers. Mr Royle gave evidence that extensive areas of the constructed subdivision roads and extensive areas of the constructed subdivision roads in Lot 503 and Lot 504 are defective. The defects involve cracking in the concrete kerb, cracking in the asphalt surrounding entry side pits and sink holes approximately 100 millimetres deep in places.
Mr Royle expressed the opinion that the cause of these defects is twofold: first, movement in the kerb, because it is not supported sufficiently and in particular because the limestone sub-base and gravel base course does not appear to extend beyond the back of the kerb; second, movement in the kerb from the drainage pipes under the influence of pavement not being backfilled with sand as required in the specification for the subdivision roads. It appears from photographic evidence, as well as from the evidence of Mr Royle and the evidence of Mr John Bayly, a civil engineer with almost 40 years' experience, who is a consulting engineer for the Shire of Gingin, that clay has been used extensively for backfilling, whereas sand should have been used in accordance with the specification.
The problems have become manifest particularly over the winter months when rain has caused movement in the clay. Indeed, the three sink holes about which evidence was given, appear to have materialised over the course of the winter between about 15 August 2008 and 6 October 2008.
The problem in this case is not simply that there are extensive defects that appear to affect large parts of the kerbing and adjacent areas in the site, as well as Lot 503 and Lot 504; the problem more particularly is that the extent of these defects is not presently known.
The evidence indicates that the roads were constructed within the site and Lot 503 and Lot 504 at the same time by the same contractor. The inescapable inference, on the evidence presented to the Tribunal, is that defects will still become known throughout the site and Lot 503 and Lot 504 in the future, particularly through rain over forthcoming winters and when loads are placed on the road. It is to be noted that the extensive defects that have already materialised have become apparent without normal loads being placed on the roads.
Mr Hardy submitted that a road must merely be 'traffickable' in order for there to be a 'constructed road' in satisfaction of condition 2. The Tribunal does not accept this submission. We consider that 'constructed' relevantly requires construction to an adequate standard. This is an obvious implication from the condition without which the purpose of the condition to provide proper access to the lots could not be achieved. The roads within the site and within Lot 503 and Lot 504 are clearly not constructed to an adequate standard. This is not a case in which there is some evidence of some minor defects. There are extensive defects throughout the subdivision area and we think that there is a real prospect of those defects becoming more significant and more widespread over time.
Mr Hardy also submitted that the situation could be cured and the deposited plan approved on the basis of a bond being provided to the local government for it to deal over time with the defects. While the standard condition 2 may possibly allow for a bond in some circumstances, and in particular where the defects are fully known, we agree with Ms Catherine Ide's submission on behalf of the Commission that this is not such a case. The fundamental problem here lies in the fact that we do not at present know the extent of defects and there is a real likelihood that the defects will be signficantly greater than those which are apparent on the ground at the moment.
Furthermore, if a bond were otherwise appropriate, we consider that the local government's position should be known in the case of a major subdivision in a regional shire. It may well be that the Shire does not have the capacity even with a bond to undertake the work, but that question does not arise for ultimate determination, because we simply do not have and cannot at present determine a proper estimate of the cost of rectification so as to contemplate a bond to satisfy condition 2.
Finally, in relation to condition 2, Mr Hardy submitted that an emergency access easement in the northern part of the site which is intended to provide access from a subdivisional road to Roe Street could satisfy the requirement of condition 2 that lots be provided with frontage to a constructed road, connected by a constructed road to the local road system. Roe Street is part of the local road system, although it is constructed only to a gravel standard. However, the emergency access easement was not shown on the subdivision plan, nor is it shown on the proposed deposited plan of subdivision, as a constructed road providing access to the local road system. It is shown on the deposited plan of subdivision as simply a six metre wide emergency access easement.
Furthermore, most of the lots in the proposed deposited plan would only obtain access to the emergency access easement via one or other of the subdivision roads. Those subdivision roads, as we have found, do not comply with or satisfy condition 2.
Is it necessary for the emergency access easement to be of hard surface?
The Commission originally framed this issue in terms of compliance with condition 25 of the subdivision approval. That condition requires an easement to be implemented in favour of the Shire of Gingin. It does not require that the area of the easement be hard surfaced. Although an advice note accompanied that condition stating that sealed asphalt is required for compliance with the condition, as the Tribunal said in Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98 at [78], advice notes, although commonly appended to subdivision and development approvals in this State, have no statutory status under the predecessor to the PD Act. There is no provision in the PD Act which alters this position.
During the course of the hearing, the Commission argued that compliance with condition 18 of the subdivision approval requires construction of a roadway in the easement, not to the standard contemplated in the advice note, but rather to the standard contemplated in the Planning for Bushfire Protection document published by the Department for Planning and Infrastructure and the Fire and Emergency Services Authority of Western Australia in December 2001, namely, the access having a hard surface and erosion control measures in place. Condition 18 of the subdivision approval states:
A fire management plan being prepared and implemented to the specifications of the local government and the Fire and Emergency Services Authority. (Local Government)
The applicant prepared and submitted a fire management plan in 2007. That plan, on the evidence of Mr Michael Pimm, the chief bushfire control officer and senior ranger for the Shire, is acceptable provided that the emergency access will have a hard surface and erosion control measures in place. This evidence is consistent with that of Mr Bayly who, having viewed the site of the proposed easement, indicated that the natural ground materials are such that the area would erode if not of a hard surface. Mr Bayly indicated that a hard surface requires gravel and compaction, but not necessarily asphalt.
The Tribunal considers that, in the circumstances of this case, asphalt would not be required in order to satisfy condition 18. However, consistently with the Planning for Bushfire Protection document and the evidence of Mr Bayly, a compacted gravel surface with erosion control measures in place is required. Erosion control measures do not, on the evidence of Mr Bayly and Mr Royle, require drainage works.
The condition requires both the preparation and implementation of a fire management plan to the satisfaction of the local government and the Fire and Emergency Services Authority. If the fire management plan submitted by the applicant were amended to specify a compacted gravel surface and erosion measures, but without drainage works, and had those measures been completed, the Tribunal would have found compliance with condition 18. Although the applicant appears to be prepared to amend the fire management plan to specify compacted gravel, the condition cannot be satisfied unless the work has been completed.
Conclusion
It follows that the application for review should be dismissed and the decision of the Commission to refuse to endorse a proposed deposited plan of subdivision for the site should be affirmed. In affirming the decision, however, we note that the outstanding conditions of subdivision approval that have not been complied with are restricted to condition 2 and condition 18. We also note in relation to condition 18 that if the fire management plan were amended to specify that the easement to Roe Street is to have a compacted gravel surface and erosion control measures in place, but without drainage works, and if those works would have been completed, then that condition would have been satisfied.
Finally, an issue was raised during the course of discussion about the emergency access, as to the prospect of the public generally using that access on a daily basis, rather than only in the case of an emergency to flee the site. We do not consider that the potential use by the public of that easement for general access would warrant the applicant having to construct it other than in the manner that we have outlined, namely, compacted gravel. Sealing the road is likely to encourage use by the public, whereas the subdivision plan and the deposited plan of subdivision itself indicate public access generally by a different route. We consider that a compacted gravel surface would be adequate to provide egress from the site in the event of an emergency.
Orders
The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the Western Australian Planning Commission to refuse to clear conditions is affirmed in relation to condition 2 and condition 18.
3.The Tribunal refuses to endorse the proposed diagram of survey on the basis that condition 2 and condition 18 of the subdivision approval have not been satisfied.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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