Australian Vanguard Pty Ltd and Western Australian Planning Commission
[2009] WASAT 136
•7 JULY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AUSTRALIAN VANGUARD PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 136
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS M CONNOR (MEMBER)
HEARD: 24 AND 25 FEBRUARY 2009
DELIVERED : 7 JULY 2009
FILE NO/S: DR 71 of 2008
BETWEEN: AUSTRALIAN VANGUARD PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
RespondentSHIRE OF HARVEY AND SHIRE OF DARDANUP
Intervenors
FILE NO/S :DR 191 of 2008
BETWEEN :MURRAY PIGGOTT
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
RespondentSHIRE OF HARVEY AND SHIRE OF DARDANUP
Intervenors
Catchwords:
Town planning Subdivision of land Proper construction of town planning scheme Liability to contribute to infrastructure costs Whether scheme contains implied obligation to pay shortfall on previous contributions related to earlier stages of subdivision
Legislation:
Planning and Development Act 2005 (WA), s 253(3), s 251(4)
Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme No 1, cl 8.1, cl 10.1, cl 16, cl 17, cl 17.1, cl 17.5, cl 18, cl 18.2, cl 21.1, Appendix 12
Shire of Harvey Town Planning Scheme No 10
State Administrative Tribunal Act 2004 (WA)Result:
Applicant successful
Category: B
Representation:
DR 71 of 2008
Counsel:
Applicant: Mr CG Colvin SC and Mr IC Rogers
Respondent: Ms R Young
Intervenors : Mr DR Williams QC and Mr PL Wittkuhn
Solicitors:
Applicant: Hardy Bowen
Respondent: State Solicitor's Office
Intervenors : McLeods
DR 191 of 2008
Counsel:
Applicant: Mr C Colvin SC and Mr I Rogers
Respondent: Ms I Young
Intervenors : Mr DR Williams QC and Mr P Wittkuhn
Solicitors:
Applicant: Hardy Bowen
Respondent: State Solicitor's Office
Intervenors : McLeods
Case(s) referred to in decision(s):
Lloyd v Robinson (1962) 107 CLR 142
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1These proceedings concerned an assessment of the entitlement of the Shire of Harvey and Shire of Dardanup to require subdividers to pay contributions to the cost of future construction of the Collie River Bridge and distribution roads in Eaton. Contributions to those costs are dealt with by the Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme No 1 and a cost sharing proposal contained in a report adopted by the Shires in 2007.
2A number of landowners in the area have progressively subdivided portions of their land since the mid 1990s. They have made contributions in relation to the proposed infrastructure in relation to earlier stages of subdivision, but on the basis of estimates of the likely costs of the works current at the time of payment. Those early estimates are dramatically lower than the cost now estimated.
3The two Shires sought to require that, in relation to further stages of subdivision, the landowners pay an amount towards infrastructure costs that would make up for the shortfall in respect to earlier stages. The landowners argued that they should only pay an amount calculated as a proportion that the area of the particular stage for which subdivision approval was sought bears to the whole scheme area.
4The Tribunal considered that the proper construction of the scheme led to the conclusion that the landowners' argument should be accepted.
Introduction
5There are two applications for determination in these proceedings. Matter DR 71 of 2008, Australian Vanguard Pty Ltd (Vanguard) is an application made by Australian Vanguard Pty Ltd under s 253(3) of the Planning and Development Act 2005 (WA) (PD Act) for review of the Western Australian Planning Commission's (Commission or respondent) failure to make a decision in relation to the subdivision application for Part Lot 9015 Clifton Close, Braidwood Drive, Kingston Estate, East Australind (Part Lot 9015). The proposed subdivision involves the creation of 301 residential lots in Stage 10 and portion of Stage 8B(i) of the Kingston Estate. The calculations relating to the stages are as follows:
Stage 10
Total Area:
22.3886 hectares
Gross Subdividable Area:
16.2990 hectares
Average Lot Size:
580 square metres
Number of Lots:
281 lots
Stage 8B(i)
Total Area:
1.8207 hectares
Gross Subdividable Area:
1.382 hectares
Average Lot Size:
664.1 square metres
Number of Lots:
20 lots
6The question as to whether approval should be given to the subdivision application is not an issue in dispute between the parties. The Commission does not have any objection in principle to the approval of the proposed subdivision subject to a number of conditions. The intervenors initially sought to argue that, if their submissions as to the appropriate conditions of subdivision were not accepted, then the proposed subdivision should be refused. However, they abandoned that argument at the hearing.
7The issue in dispute relates only to proposed condition 8 which relates to a requirement to contribute towards shared cost as determined by the Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme No 1 (Scheme or TPS 1), and in particular, whether provision should be made as to the amount of contribution required under the Scheme and whether the condition should expressly state that the applicant is not required to pay shared costs in respect of land other than land the subject of the application for subdivision.
8The other proceedings, matter DR 191 of 2008, concern an application made by Mr Murray Piggott under s 251(4) of the PD Act for review of the Commission's deemed refusal to endorse a deposited plan of subdivision in relation to Part Lot 43 Ditchingham Place, Australind (Part Lot 43).
9The respondent, on 20 May 2005, granted approval for the subdivision of the balance portion of Part Lot 43 subject to 12 conditions. In particular, the approval was conditional upon (condition 11):
Satisfactory arrangements being made with the Western Australian Planning Commission to contribute towards the construction of distributor roads and the Collie River Bridge and associated Administrative costs in accordance with the Shires of Dardanup and Harvey Joint Planning Scheme No 1 (LG).
10The Commission on 28 August 2007 advised that it would clear condition 11 subject to:
i)the Shire confirming that the applicant has paid the Scheme costs applicable to the subject subdivision; and
ii)the applicant confirming that a legal agreement, has been entered into with the Shire of Harvey, for the balance of payment, relating to the subject subdivision only to be paid after the Authorities have adopted an estimate pursuant to the Joint Scheme, or the Shire reimburse the subdivider for any overpayment.
11The applicant claims that he has satisfied the condition and seeks clearance of the condition which has been refused by the Commission.
12The dispute arises over the calculation of the amount that is to be paid in respect of shared costs to satisfy the condition.
13The Shire of Harvey and the Shire of Dardanup made an application under s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for leave to intervene in both of the review proceedings. The Tribunal considered that the intervention was necessary for the proper disposition of these proceedings and granted leave for both the Shire of Harvey and the Shire of Dardanup (intervenors) to intervene in both proceedings.
Historical context
14The Shires of Dardanup and Harvey have a boundary which follows the line of the Collie River. Since the early 1990s, proposals have existed for subdivision of the land on either side of the Collie River and the construction of a two-lane bridge and essential distributor roads for the benefit of commuters, as part of a structure plan for the area which is known as East Australind/Eaton.
15Both Vanguard's land and Mr Piggott's land is located in this area and in the Shire of Harvey. Vanguard's land is known as 'Kingston Estate'.
16A preliminary report prepared for the Shires by Mr Colin Evans and dated 31 October 1994 recommended that the cost of construction of the bridge over the Collie River should be apportioned between landowners within the study area based upon the 'net developable' area of each individual landholding. The report contemplated that once the base bridge construction cost had been established, it should be reviewed annually to ensure that the base cost is adjusted to take account of inflationary cost increases. The report recommended that developing landowners should be required to pay their pro rata proportion of such cost based on the costs applicable at the time of subdivision and equated to the net area being subdivided. The preliminary report also recommended the identification of parameters to provide for the basis of contribution by landowners to the cost of distributor roads.
17Those preliminary recommendations were essentially repeated in a subsequent document entitled 'East Australind Structure Plan Report' dated 23 November 1994 prepared by Mr Evans (Evans report).
18The Evans report made the following recommendations in relation to the construction of the bridge and new distributor roads:
9.2Bridge Construction
9.2.1That the cost of constructing the bridge over the Collie River be apportioned between all of the subdividing landowners within the Study area.
9.2.2The bridge construction costs be apportioned to each subdividing landowner based on the proportion that the nett developable area of each owners land bears to the total developable area of all land within the [East Australind/Eaton] study area. Such apportionment to be allocated on a value weighting factor of .5 over the area of each shopping centre site to take account of its added return value over conventional residential land values.
[The weighting factor was amended to 2.0 in the later version of the 'East Australind/Eaton Structure Plan Report' (see 594 - 626 of Intervenor's bundle of documents)].
9.2.3The estimated bridge construction cost of $2.7 million be reviewed annually in July of each year to take account of applicable inflationary cost increases.
[The cost of construction was amended to $3.4 million in the later version of the 'East Australind/Eaton Structure Plan Report'].
9.2.4Subdividing owners be required to pay the per hectare costs deemed to be applicable and as agreed by Council at the time payment is made to the Council.
[This paragraph was modified in the later version of the 'East Australind/Eaton Structure Plan Report' to the 'Subdividing owners be required to pay the nett subdividable area per hectare costs deemed to be applicable by Council at the time payment is made to the Council'.]
9.2.5Council formulate a policy to determine at what stage the bridge is to be constructed and how the difference between the contributions collected to the time of construction and the balance construction cost, is to be paid.
9.2.6Council undertake to invest the pro rata contributions as they are received at the best possible interest rate with a Local Government approved Financial Institution.
9.3Distributor Roads
…
9.3.6New Distributor Road – to be constructed at the cost of all subdividing owners within the study area from Clifton Close to Ditchingham Place and on the basis that the section located between Clifton Close and Paris Road be constructed when 50% of Barriera P/L land has been subdivided. Such costs including the value of the land required for the new road to be apportioned on the basis referred to in Item 9.[2].2. Construction of this road to allow for a 30 metre wide road reserve and 2 single lanes separated with a central median.
[Minor modifications were made to this paragraph in the later version of the 'East Australind/Eaton Structure Plan Report'].
Vanguard matter - DR 71 of 2008
19The Shire of Harvey and Barriera Pty Ltd (Vanguard's predecessor in title) entered into a deed on 13 April 1995 regarding the future planning and subdivision of Lot 48 (Barriera deed). The Barriera deed, amongst other things, recited the fact that the Shire of Harvey had commissioned a report that had made recommendations, inter alia, regarding the construction of a bridge over the Collie River and distributor roads and regarding the contributions of certain owners of land to the cost of such infrastructure.
20Clause 4 of the Barriera deed records an agreement concerning contributions for the costs of the bridge, distributor roads and administration charges as foreshadowed in the Evans report. Clause 4.3 provides:
… the Owner hereby covenants and agrees that it must pay to the Shire on a per hectare basis the final contribution that may be determined by the Shire and payable by the Owner and the other registered proprietors referred to in the Evans Report such amount to be calculated as set out in the Evans Report (being contributions to the cost of the bridge and distributor roads and administration charges) and payable at the time of seeking clearances of sub-division conditions for each stage of the subdivision of the Land.
21Clause 4.4 further provides that:
The Shire further acknowledges that this agreement on the part of the Owner is to expedite the sub-division of the Land and will in no way whatsoever limit or restrict the right of the Owner at law to appeal to any competent authority regarding the amount or proportion of any contributions determined to be payable by the Owner or any other conditions imposed.
22The first subdivision approval for Kingston Estate (stages 1A and 1B) was approved on 12 December 1996 (WAPC 101143). The area of land involved in these stages equated to 11.8569 hectares. A condition of the subdivision required 'satisfactory arrangements being made for assistance in the construction of the Collie River Bridge linking Eaton and Australind'.
23The contributions for these stages were assessed on the basis of the proportion of the subdivided area to the total developable area within the East Australind/Eaton area, which led to the total payment of $66,906 in cash and $26,377 as bond.
24In 1997, the applicant became the owner of Lot 48 and on 12 June 1997 entered into a deed with the Shire of Harvey by which it agreed to perform the provisions of the Barriera deed.
25In 1997 and 1998, there was correspondence between the Shire of Harvey and the landowner's representative. That correspondence made it clear that the figures that had been provided in relation to the costs of the bridge and roads were only estimates subject to final calculations in light of the eventual requirements of the scheme to be adopted.
26In December 1998, approval to subdivide Stage 3 of Kingston Estate was granted by the Commission subject to a condition that satisfactory arrangements were to be made with the Commission 'by contributing on a proportionate basis towards the proposed Collie River Bridge, distributor roads and associated administrative costs'.
27Consultants for the landowner sought a review by the Commission of the condition relating to the Collie River Bridge and distributor roads. As a result of those representations, the Commission agreed to a rewording of the relevant condition so that it read:
The subdivider, to the satisfaction of the Western Australian Planning Commission, contribute to the Shire of Harvey towards the proposed Collie River Bridge, distributor roadworks and associated administration costs and make arrangements to contribute additional costs if a shortfall is determined by the gazettal of the respective joint guided development scheme.
28An advice note was added in relation to that condition which read:
In relation to condition 3, the subdivider is advised that the initial contribution is $500 per lot.
29On 18 August 1999, the Shire of Harvey wrote to Vanguard's development manager concerning Stage 5. The facsimile referred to a caveat that had been lodged against the residual land to ensure that contributions were made towards the Collie River Bridge and distributor roads. Reference was made to the condition of approval concerning arrangements to be made for any shortfall in contributions. It continued:
The purpose of this fax is to request recognition from the subdivider that shortfalls in the proposed Scheme costs would need to be (if determined by the final gazettal of the Scheme) addressed in subsequent stages of subdivision. This recognition should be in a written form, similar to that provided for the public open space issue.
30On the same day, the development manager responded in the following terms:
We advise the Shire of Harvey that Australian Vanguard Pty Ltd has and will continue to contribute to the above-mentioned Collie River Bridge and Distributor Road Contribution Scheme as required by the Shire of Harvey consistent to the original legal agreement between the Shire of Harvey and Barriera Pty Ltd dated 13 April 1995, which has subsequently been transferred to Australian Vanguard Limited [sic].
This agreement clearly specifies -
'the owner hereby covenants and agrees that it must pay to the Shire on a per hectare basis the final contribution that may be determined by the Shire and payable by the owner and other registered proprietors referred to in the Evans Report, such amount to be calculated as set out in the Evans Report and payable at the time of seeking clearances of subdivision conditions for each stage of the subdivision of the land.'
This Agreement also provides for Scheme Amendments to update the current Evans Report. Under these arrangements, the Shire can adjust [its] calculations to provide for a greater or lesser amount to be contributed, hence we believe that the WAPC Condition 3 for Stage 5 has been satisfied.
31Between 1998 and 2004, seven subdivision approvals were issued for Kingston Estate relating to Stages 2A, 5, 6A, 3, 7AA, 8A - phase 1, 7AB and 4B. All of the subdivision approvals required, as a condition of approval, contribution towards the proposed Collie River Bridge, distributor roadworks and associated costs. In some of the approvals, the condition also required the subdivider to make arrangements to contribute additional costs if a shortfall was determined by TPS 1. In others, the advice note attached to the approval advised that the final contribution amount would be determined by TPS 1 or calculated using the formulas contained in TPS 1. The initial contribution was identified in each of the approvals as $500 per lot.
32The advice notes were not all in the same terms. By way of example, in relation to stage 2B, the advice note read:
In relation to condition 6, the anticipated gazettal of the draft Shire of Harvey/Dardanup Joint Town Planning Scheme Number 11 (draft scheme) in late 2001/early 2002 will provide guidance on any contributions for Eaton Drive and the Collie River Bridge construction. If clearance of condition 6 is sought prior to the gazettal of the draft scheme, the subdivider is advised to liaise with the Shire of Dardanup to make arrangements to contribute additional costs if there is a shortfall or receive a reimbursement, if appropriate, in accordance with the Shire of Harvey/Dardanup Joint Town Planning Scheme Number 1.
33In relation to stage 4B, the advice note read:
In relation to condition 3, the subdivider is advised the initial contribution is $500 per lot. The subdivider is advised that the Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme Number 1 (East Australind/Eaton Development Scheme), which is currently being considered by the Minister for Planning and Infrastructure for final approval, will determine the final contribution amount. It is expected that the guided development scheme will be finalised within the next six months.
34That approval was dated 5 February 2002.
35A total of 426 lots were created, resulting in an initial contribution amount of $213,000.
36In 2005, a series of subdivision approvals were granted relating to Stages 2B, 4C, 6B, 8A - phase 2 and 9A, involving 23.26 hectares of land. Each of these approvals required contributions towards the proposed Collie River Bridge, distributor roads and associated administrative costs on a proportionate basis, which resulted in a total of $586,398.37 being paid by the subdivider as contributions. Similar approvals were issued for the local centre and retirement stages.
37Other subdivision approvals issued in 2005 and 2006, relating to Stages 8B, 8B(i), 9B, and 9B(i), required contributions to be made towards all works associated with the proposed Collie River Bridge, Kingston Drive and Ditchingham Place and associated administration costs, calculated using the formulas contained in TPS 1 and when all costs associated with the infrastructure have been determined. To date, approximately $1,528,000 has been paid by the subdividers as contributions for Stages 8B(i) and 9B(i).
38The condition imposed on the most recent approval issued in May 2006 for Stage 7B, required:
[t]he applicant/owner complying with the terms and conditions of the Shire of Harvey and Dardanup Joint Town Planning Scheme No 1, including the payment of scheme works contributions.
39In September 2007, the Shire of Harvey adopted the Connell Wagner report "Shared Costs Administration of JTPS No. 1 Shires of Harvey and Dardanup" dated 10 September 2007 (CW report 2007) as a basis for administering TPS 1 and acknowledgement of the landowner's liability according to the scheme as at 10 September 2007. The CW report 2007 identified the following contribution requirements relating to Lot 48 (now referred to as Part Lot 9015):
| Lot No | Nett Subdividable area (ha) | Contribution Required | Contributions collected to date | Outstanding Contribution | Outstanding Contributions that can be Collected | Outstanding Contribution that cannot be collected |
| 48 | 168.7334 | $14,052,624.48 | $1,132,971.37 | $12,919,653.11 | $12,919,653.11 |
40The CW report 2007 recognised that there was only 73.9178 hectares of remaining subdivisible area for Lot 48 and as such estimates that the contribution per hectare of remaining subdivisible area is $174,784.06.
41A review of the costs was undertaken in accordance with cl 18.2 of TPS 1. The Schedule of Share Costs for the year commencing 1 July 2008 (2008 Schedule) was adopted by the Shire of Harvey at its meeting of 24 June 2008. The 2008 Schedule identifies the following contribution requirements relating to Lot 48:
| Lot No | Nett Subdividable area (ha) | Contribution Required | Contributions collected to date | Outstanding Contribution | Outstanding Contributions that can be Collected | Outstanding Contribution that cannot be collected |
| 48 | 168.7334 | $14,164,322.43 | $2,523,277.85 | $11,640,944.58 | $11,640,944.58 |
42The 2008 Schedule recognised that there was only 65.3937 hectares of remaining subdivisible area for Lot 48 and as such estimates that the contribution per hectare of remaining subdivisible area is $178,013.24.
43The intervenors contend that the total contribution required to be paid for the proposed subdivision is $4,027,097.68. The applicants say that the figure should be $1,879,410.63.
Piggott matter - DR 191 of 2008
44The documents reveal that Lot 25 Ditchingham Place, Australind (Lot 25), which was in the ownership of the Piggott family, was progressively subdivided between 1991 and 1994 without a requirement for infrastructure contributions (see DPUD ref 85582). It would appear from the Shire of Harvey's record sheet (pg 525 of the Intervenor's bundle of document) that Part Lot 43 was created by subdivision in 1991, although the Evans report calculates the Piggott's 'Nett Developable Area (ha)' by reference to Lot 23 and Lot 25 with an area of 78.3 hectares and correspondence from the Shire of Harvey, as late as 1996, refers to Lot 25.
45In December 1993, subdivision approval was granted for Lot 25 subject to a number of conditions (see DPUD ref 89715), one of which requires compliance with the terms and conditions of the Shire of Harvey Town Planning Scheme No 10. Correspondence from the Shire of Harvey in June 1995 and November 1996 reveals that the total area of Lot 25 was 47 hectares and in respect to the three stages seeking subdivision clearance (total land area of 6.4157 hectares), a total of $21,285.39 was payable as the '[o]wners cost apportionment for [these] stages of the subdivision'. The letter of 12 June 1995 also states that the payments are required in accordance with the provisions of 'Town Planning Scheme No 10 (Appendix 12) - Area 1: Australind Light Industrial Estate' and the November 1996 letter refers to 'District Planning Scheme No 1 (Schedule 5 – Area 1: Australind Light Industrial Estate'. Neither party referred in their submissions to either of those schemes, and nor were the scheme texts included in the documents submitted at the hearing. We assume that the payments required by the Shire were considered to be the full discharge of Mr Piggott's liability arising from those stages of subdivision in relation to the infrastructure costs referred to in the Evans report. Payments of the specified contributions were made by the Piggott family.
46It is not clear from the documentation when reference was first made to Part Lot 43, being 16.65219 hectares in area. The first mention of Part Lot 43 in the documents before the Tribunal can be found in the Cost Apportionment Schedules (based on 1998/1999 estimated values) in the East Australind/Eaton Joint Scheme Report (1999).
47In May 2005, approval was granted by the respondent for the subdivision of Part Lot 43 into three lots with provision for a 20 metre road reserve. Total land area of the subdivision comprised 10.2362 hectares (WAPC ref 127356). Condition 11 of the approval required:
[s]atisfactory arrangements being made with the Western Australian Planning Commission to contribute towards the construction of distributor roads and the Collie River Bridge and associated administrative costs in accordance with the Shires of Dardanup and Harvey Joint Town Planning Scheme No 1 (LG).
48TPS 1 was gazetted on 17 March 2006 and identifies the 'nett subdividable area' of Part Lot 43 as 16.6519 hectares: Sch 3.
49The Shire of Harvey in a fax dated 4 October 2006 advised that the total scheme contributions for Part Lot 43 were estimated to be $539,893, of which $21,285 had been paid previously. The remaining $518.610 (sic) comprised of:
•costs for the current stage (10.2362 hectares) - $331,872; and
•shortfall from the previous stages (6.4157 hectares) - $186,738.
50The applicant paid the sum of $331,872 to the Shire of Harvey on 11 July 2007 and a deposited plan for the subdivision was lodged with the respondent with a request for clearance of condition 11.
51The Commission informed the applicant on 28 August 2007 that it would clear condition 11 subject to the following conditions being satisfied:
i)the Shire confirming that the Applicant has paid the Scheme costs applicable to the subject subdivision; and
ii)the applicant confirming that a legal agreement has been entered into with the Shire of Harvey, for the balance of payment, relating to the subject subdivision only to be paid after the Authorities have adopted an estimate pursuant to the Joint Scheme, or the Shire reimburse the subdivider for any overpayment.
52The CW report 2007 identified the following contribution requirements relating to Part Lot 43:
Lot No
Nett Subdividable area (ha)
Contribution Required
Contributions collected to date
Outstanding Contribution
Outstanding Contributions that can be Collected
Outstanding Contribution that cannot be collected
Pt 43
16.6519
$1,386,820.26
$21,285.39
1,365,534.87
1,365,534.87
53The CW report 2007 recognised that there was only 10.2362 hectares of remaining subdivisible area for Part Lot 43 and as such estimates that the contribution per hectare of remaining subdivisible area is $133,402.52.
54In May 2008, the applicant made a further payment of $520,629.54 in respect of costs, making a total payment of $852,501.54.
55The 2008 Schedule, which was adopted by the Shire of Harvey at its meeting of 24 June 2008, identifies the following contribution requirements relating to Part Lot 43:
Lot No
Nett Subdividable area (ha)
Contribution Required
Contributions collected to date
Outstanding Contribution
Outstanding Contributions that can be Collected
Outstanding Contribution that cannot be collected
Pt 43
16.6519
$1,397,843.47
$353,157.39
$1,044,686.08
$1,044,686.08
56The 2008 Schedule produces an $11,023.21 increase in the amount of contributions required to be paid by the applicant over the figure identified in the 2007 Schedule.
57The intervenors contend that the remaining contributions required to be paid for the subdivision of the balance land equates to $1,365,535.60 less contributions already made ($852,501.54), leaving $513,034.06 to be paid.
TPS 1
58Both Part Lot 9015 and Part Lot 43 are contained within the scheme area of TPS 1, which was gazetted on 17 March 2006.
59Clause 8.1 sets out the 'General Objects' of TPS 1, which are:
a)to make provision for the construction of new roads and/or upgrading of existing roads within the Scheme Area.
b)to make provision for the construction of a new bridge over the Collie River including the approaches thereto.
c)to make provision for the respective rights and obligations of the landowners and of the Authorities.
d)to improve and secure the amenity[,] health and convenience of the Scheme Area.
e)to make provision of equitable sharing and apportionment of the shared costs between the subdividing owners deemed by the Authorities to be necessary to carry out and complete the subdivision of the Scheme Area including the allocation and/or recoupment of administration and interest costs deemed applicable thereto.
f)to make provision for any other matters which are necessary or incidental to town planning."
60Clause 10.1 of the Scheme provides that the:
… location of selected proposed distributor roads and the proposed Collie River Bridge … forms part of the Scheme for the purposes of identifying the nature of scheme works which are subject to a cost sharing arrangement …
61Clause 16 of TPS 1 addresses 'Shared Costs'. Sub-clause 16.1 identifies the costs or estimated costs that are the 'Shared Costs' for the purposes of the Scheme, including the costs of distributor roads and a bridge over the Collie River (yet to be constructed). Sub-clause 16.2 of TPS 1 requires that the owner's apportionment of shared costs be determined in accordance with Sch 2 to Sch 5 of TPS 1 inclusive and sub-clause 16.3 to sub-clause 16.5 of TPS 1 inclusive.
62Schedule 2 identifies the distributor roads subject to 'Shared Costs' and the cost apportionment. The shared costs apportionment relating to the Vanguard land, being Part Lot 9015 (previously Lot 48) and the Piggott land, Part Lot 43 are contained in Sch 3 and Sch 4 as follows:
SCHEDULE THREE SCHEDULE OF LOT TITLES - NETT SUBDIVIDABLE AREAS AND SHARED COST APPORTIONMENT
Owner
Lot No
Nett Subdividable Area (Ha)
Percentage of Precinct
(%)
Percentage of Whole Scheme Area (%)
Australian Vanguard Ltd
48
168.7334
37.007
22.827
G & J Sawyer
Pt 26
6.2130
1.363
0.841
R I E Partridge
27
6.1894
1.357
0.837
Australian Vanguard
Pt 28
10.5164
2.307
1.423
J & M Piggott (P17883)
Pt 1
3.2000
0.702
0.433
J & M Piggott
Pt 3
41.9000
9.190
5.668
J & M Piggott
Pt 43
16.6519
3.652
2.253
RP & MFW Gartrell
Pt 1
8.4000
1.842
1.136
B Bevan, J & E Bracey, K,T & G Coote, P Price, F Pike
Pt 1
155.5676
34.120
21.046
Riverland Management P/L
2
38.5746
8.460
5.218
Sub Total
455.9463 ha
100%
61.682%
SCHEDULE FOUR COLLIE RIVER BRIDGE - SCHEDULE OF LOT TITLES AND SHARED COSTS INCLUDING LAND AREAS AFFECTED BY WEIGHTING FACTOR OF 2
Owner
Lot No
Nett Subdividable Area (ha)
Percentage
(%)
Land Area Affected by Weighting Factor of 2 (Ha)
(East Australind District Shopping Centre, Mixed Business /Service [Commercial] and the Tavern/Fast Food Outlet development).
East Australind (Shire of Harvey)
Australian Vanguard Ltd
48
168.7334
22.827
G & J Sawyer
Pt 26
6.2130
0.841
R I E Partridge
27
6.1894
0.837
Australian Vanguard
Pt 28
10.5164
1.423
J & M Piggott (P17883)
Pt 1
3.2000
0.433
J & M Piggott
Pt 3
41.9000
5.668
J & M Piggott
Pt 43
16.6519
2.253
RP & MFW Gartrell
Pt 1
8.4000
1.136
3.2
B Bevan, J & E Bracey, K,T & G Coote, P Price, F Pike
Pt 1
155.5676
21.046
14.9
Riverland Management P/L
2
38.5746
5.218
Eaton (Shire of Dardanup)
Ardross Estates S A P/L
14
73.9259
10.001
Ardross Estates S A P/L
Pt 13
82.6113
11.176
Parkridge Group P/L
3
59.7834
8.088
Parkridge Group P/L
4
0.3000
0.041
Parkridge Group P/L
Pt 2
14.0398
1.899
NTC P/L
150
2.3165
0.313
Parkridge Group P/L
Pt 1009
1.0361
0.140
Parkridge Group P/L
Pt 3
21.4600
2.903
Luca Investments P/L & Newstyle Construction P/L
1003
11.8400
1.602
Parkridge Group P/L
1004
7.8864
1.067
Churches of Christ Homes & Community Services P/L
1005
6.5571
0.887
Churches of Christ Homes & Community Services P/L
1007
1.4844
0.201
Total
739.1872 ha
100%
18.1 ha
63Schedule 4 contains the following note:
Weighting factor is to be determined by dividing the total bridge cost (reviewed annually) by the total net subdividable land to ascertain a value per square metre and the later is multiplied by two. The balance of the cost of the bridge is to be paid by owners of the other titles on a proportionate basis. The owner's proportion to the balance of the Shared Cost is to be equivalent to the owner's net subdividable land area divided by the total net subdividable land area (excluding the abovementioned commercial areas).
64Schedule 5 is not applicable to the subject lots as it relates to shared costs for Eaton Drive, a cost which is not attributed to these lots.
65Sub-clauses 16.3, 16.4 and 16.5 of TPS 1 set out the formula for calculating an owner's apportionment of shared costs relating to the construction of the Collie River Bridge and associated administrative cost, the establishment of district distributor road reserve and associated administrative costs and all other administrative costs.
66Clause 17 of the TPS 1 provides for the payment of the shared costs, and amongst other things, requires that the owner's proportion of the shared costs calculated on the nett area of the super lot or the land area being subdivided, is to be paid prior to endorsement of the final approval of the Commission to the subdivision (sub-clause 17.1).
67Clause 18 of TPS 1 provides for the estimation of shared costs. If any items of the shared costs have not been paid nor ascertained at the date of the subdivision of a parcel of land, the Shire may estimate the cost of such items. Further, a schedule of shared costs is to be established as soon as practicable following the gazettal of the TPS 1 and the shared costs, including any estimated costs, are to be revised annually. The CW report 2007 constitutes the schedule contemplated by cl 18. Payment of an estimate by an owner discharges the owner's liability in respect of the item of shared costs for which the estimate was made.
68In respect to any existing agreements entered into by the Shires and landowners prior to the operation of TPS 1, cl 21.1 provides that if there is any conflict or inconsistency between the terms of the agreement and TPS 1, TPS 1 prevails.
Issues
69The following four issues were identified for consideration in the review of DR 71 of 2008 - (Vanguard matter):
1)If the subdivision is to be approved, what form of condition is appropriate upon the subdivision approval to reflect the obligation of the application to make infrastructure contributions pursuant to the Joint Scheme as properly construed;
2)(a) Is an owner obliged to make payment of the entire percentage of Shared Costs set out against that owner in the 'Percentage' column of each Sch 3, Sch 4, and Sch 5 of the Joint Scheme, with particular subdivision approvals being merely the occasion for the payments to be required to be made;
b)Can the contribution required on a later stage of an owner's subdivision (such as the present application) be calculated on a basis other than as proportionate to the Nett Subdividable Area of the land subject of the particular application for subdivision;
c)Should the infrastructure contribution condition take the form of a requirement to pay a stipulated sum of money to the Shire of Harvey in accordance with the proper construction of the Joint Scheme;
d)Is the amount which the Intervenors have required to be paid, the appropriate amount as a matter of proper construction of the Joint Scheme.
3)Should the infrastructure contribution condition contended for by the Intervenors be supported on the additional basis of the applicant having entered into contractual commitments to make such a contribution; and
70The following issue was identified for consideration in the review of DR 191 of 2008 (Piggott matter):
On the proper construction of the scheme, has Mr Piggott made satisfactory arrangements to contribute to shared costs in accordance with the joint scheme, as required by condition 11.
71Determination of these issues turns substantially upon the proper construction and effect of TPS 1. In essence, the intervenors argue that it is open to impose a condition on the approval of these later stages of subdivision which requires 'catch-up' payments of any shortfall in contributions to infrastructure paid in relation to earlier stages of subdivision. The intervenors argue that the scheme, as properly construed, imposes a liability upon land owners within the scheme area to provide their full proportionate contribution to the infrastructure costs in accordance with the Sch 3 and Sch 4 of TPS 1, and any shortfall in earlier payments must be made up at the time of a later stage of subdivision. In addition, or as an alternative, the intervenors argue that TPS 1 contains an implicit assumption that earlier subdividers have a pre-existing obligation to make up any shortfall between the amount they have paid towards infrastructure contributions, and the amount that is payable in accordance with Sch 3 and Sch 4 of TPS 1, and that that obligation will be met as the balance of the land is progressively subdivided.
72The applicants contend that properly construed, TPS 1 requires only payment of the infrastructure contribution based upon the proportion which the land the subject of the particular stage of subdivision bears to the whole of the land in the scheme area. Vanguard argues that if, which it does not accept, any liability exists in relation to infrastructure contributions for earlier stages of subdivision that is not a matter properly dealt with by the imposition of conditions.
Proper construction of TPS 1
73Clause 8.1(e) makes it clear that TPS 1 seeks to achieve an equitable sharing and apportionment of the shared costs between the subdividing owners. Clause 16.0 and Sch 3 and Sch 4 identify the proportions of the original land holdings of each owner within the scheme area as a percentage of a whole of the land in the scheme area.
74The intervenors argued that the enactment of the scheme effectively imposes an immediate obligation on land owners who had already subdivided a portion of their land to pay the proportion of shared costs which the already subdivided land bears to the whole of the land in the scheme area. We do not accept that contention.
75Some land owners within the scheme area had completed subdivision of the whole of their land prior to the enactment of TPS 1. In each case, those owners were required to pay an infrastructure contribution. In each case, the contribution paid, prior to clearance of the conditions of subdivision, fell well short of the contribution which would be payable if calculated on the basis of their percentage of the shared costs under the CW report 2007 and its subsequent annual revision. If the construction of TPS 1 for which the intervenors contend were accepted, it would logically follow that those owners who had completed subdivision prior to enactment of TPS 1 could now be called upon to meet the shortfall in their contributions as against present estimates. The intervenors, appear to accept however, that owners who have completed subdivision of the whole of their lands prior to enactment of TPS 1 have no further liability in respect to infrastructure contributions. That was the position assumed by the CW report 2007 in calculating the contributions required of various land owners. Connell Wagner treated the shortfall in respect to completed subdivisions as being irrecoverable.
76The obligation to pay for shared costs arises under cl 17.1. We accept the applicant's submission that it is that clause that is the source of the obligation to pay. It requires that:
Each owner of land shall prior to endorsement of the final approval of the Commission of the subdivision of his/her land shall (sic) pay to the authorities a proportion of the Shared Costs calculated on the nett area of the super lot or the land area being subdivided.
77The mechanism in cl 17.1 is for payment on the basis of the proportion of 'the land area being subdivided', not on the basis of the whole of the percentage of the landowners land as identified in Sch 3 and Sch 4, nor on the basis of the area of land previously subdivided by that owner.
78That the scheme does not create an immediate obligation to pay a percentage of the shared costs identified in the Schedules is borne out by cl 17.5. That clause requires a contribution to be made by any landowner who has not carried out and completed his subdivision within 20 years from the date of the scheme, and the amount of that contribution is recoverable by the Shires as a debt.
79In our view, TPS 1 simply fails to deal with the recovery of any amount of shortfall between contributions paid in previous stages of subdivision in the amount that would be payable in accordance with the CW report 2007 estimates. Rather, it contemplates recovery of proportionate amounts of shared costs as land is progressively subdivided throughout the scheme area.
80The intervenors argue that the scheme implicitly assumes that earlier subdividers have a pre-existing obligation to make up any shortfall in earlier stages of subdivision. There may well be a basis for contending that, by reason of various deeds entered into by Vanguard Australia, and the terms of various conditions of approval of earlier stages of subdivision, some obligation to pay some further contribution in relation to earlier stages of subdivision may exist. If that is so, however, it would appear to us, that if there is any implicit assumption in TPS 1, it is that those obligations will be met independently of any requirement imposed by TPS 1. In other words, any obligation to make up a shortfall in previous payments must arise by virtue of the contractual obligations contained in particular deeds, or as some other enforceable obligation arising by reason of conditions imposed upon earlier subdivisions.
81A difficulty with the notion that the scheme implicitly provides a mechanism of enforcement of some pre-existing obligation is the problem of identifying the precise nature and extent of any such obligation. The intervenors approach is to simplistically assume the pre-existing obligation in relation to each earlier stage of subdivision is to pay the difference between any amount actually paid on clearance of conditions, and the proportionate amount which would be payable on the basis of the CW report 2007 or its annual revision. In assessing that difference, no account is taken of the interest earned on the original contributions. Although the contributions presently said to be required by TPS 1 are calculated in the CW report 2007 by reference to the present value of anticipated future expenditure, nowhere do the calculations relied upon by the intervenors account for the interest earned on past contributions. The result of that approach is that the landowners who have paid past contributions would, in effect, be paying more in real terms than the amount of the proportionate contribution to the whole of the present estimate.
82Although it is not the function of this Tribunal to adjudicate upon the contractual or other liabilities of Vanguard in respect to past subdivisions, we accept Vanguard's submission that the extent of any liability is at best unclear. By way of illustration, counsel for Vanguard made reference to cl 4.3 of the Barriera deed which is set out above. That clause contained a covenant to pay a contribution 'to be calculated as set out in the Evans Report ... and payable at the time of seeking clearances of subdivision conditions for each stage of the subdivision'. The Evans Report at cl 9.2.3, provides an estimated bridge construction costs of $2.7 million (subsequently revised to $3.4 million). Clause 2.4 required subdividing owners 'to pay the per hectare costs deemed to be applicable and as agreed by Council at the time payment is made to the Council'.
83In contrast, the liability now said by the interveners to be payable as a result of the obligations assumed at earlier stages of subdivision involve shared costs totalling in excess of $54 million, including the cost of the Collie River Bridge of $20,566,250.
84Counsel for Vanguard also took us to the various forms of conditions imposed in respect of different previous stages of subdivision. Different arguments might arise in relation to different conditions and advice notes attached to those conditions. It is not necessary to canvas all of those matters in detail. An illustration of the scope for argument as to the extent of future liabilities can, however, be illustrated by reference to conditions agreed upon following a review of the condition imposed upon Stage 8B on 15 June 2005 by the Commission. The matter came to this Tribunal, and consent orders were made resolving the matter. The condition agreed upon by the parties was for satisfactory arrangements to be for contribution toward shared costs as determined under TPS 1 'proportionate to the area of the deposited plan where clearance is sought'. The condition made provision for adjustment in relation to that area on the basis of any subsequently adopted estimate. An advice note which the parties appended to their consent order specified that the Commission did not intend by that condition 'to require as a condition of approval for any stage of subdivision, that the subdivider pay any amount of shared costs relating to land where titles have been obtained prior to the application for the endorsement of the stage of the subdivision in question'.
85The intervenors correctly point out that they were not parties to the proceedings which resulted in a condition being imposed in those terms. That does not, however, detract from the Vanguard's submission that there is uncertainty as to any liability in respect to past stages of subdivision.
86If TPS 1 were to be construed as implicitly requiring payment of some pre-existing obligation to contribute to infrastructure costs, it would be necessary to identify the nature of that obligation to give a condition of approval sufficient certainly to be enforcable and clear. It is not possible on the information before us, and nor would it be appropriate, for the Tribunal to seek to resolve the issues between the parties as to the effect of earlier agreements and conditions of approval. In any event, the fact that TPS 1 does not address recovery of contributions for completed stages of subdivision, those questions are left to be determined by pursuit of whatever contractual or other rights the Commission or the intervenors may have at law.
Orderly and proper planning
87The intervenors also argue that a condition that requires any previous shortfall in infrastructure contributions should be imposed as a matter of orderly and proper planning. They argue that, if the landowners who have further land to be subdivided within the scheme area are not now called upon to pay their shortfalls on previous contributions, the possibility of construction of the Collie River Bridge and the distributor roads will be put in jeopardy. That is because, they argue, the shortfall would be so great that it is beyond the capacity of the Shires to raise sufficient funds to make up that shortfall. Accordingly, they submit, the assumption underlying the development of the scheme area, namely that the bridge will be constructed, will not be realised, with significant detrimental effects on planning for the area. Accordingly, they contend that orderly and proper planning requires that Vanguard be required now to pay an amount calculated in accordance with present estimates.
88The applicants contend that it is not open to impose a condition which, in effect, relates to earlier stages of subdivision. They argue that such a condition does not reasonably and fairly relate to the proposed subdivision, and thus would not be a valid condition.
89In Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] 221 CLR 30 at [72] McHugh J, relying on Lloyd v Robinson (1962) 107 CLR 142 at 153 - 154, said:
The condition need not relate 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 larger parcel of land as a whole.
90In Lloyd v Robinson, the court held that the Commission may impose a condition on a grant of subdivision approval that requires the giving up of another area of land for purposes relevant to the subdivision of the first. The condition must be 'imposed in good faith and not with a view to achieving ends or objects extraneous to the purposes for which the discretion exists'.
91It follows that the fact that a condition is related to requirements arising as a result of subdivision of the whole of an applicant's land holding, which is being progressively subdivided, does not result in invalidity of the condition. On the other hand, there may be an argument that the use of a condition to, in effect, enforce what is said to be contractual obligations relating to other land, might be an attempt to obtain an object extraneous to the purpose for which conditions might be imposed upon the particular subdivision area with which we are concerned. That is not a matter which we need to consider, because, in our view, the imposition of a condition which requires 'catch-up' payments would not be in the interest of orderly and proper planning. There are several reasons for that conclusion.
92First, the scheme provides for a mechanism for calculation and payment of infrastructure contributions. Provision is made for payment prior to endorsement of final approval of a plan of subdivision based upon the land area being subdivided. Our view is that it is appropriate that any condition relating to contribution to shared costs should reflect the obligation arising under the scheme, and be consistent with the way cl 17.1 of TPS 1 contemplates payment.
93Second, the approach suggested by the intervenors results in drastically different contributions per hectare being required from different owners. As we have already observed, those who have completed subdivision of the whole of their land prior to the gazettal of the scheme would have no further liability, notwithstanding significant shortfalls in the amount they have paid compared to what would have been their liability under TPS 1. With respect to those owners who have not subdivided any land prior to the enactment of TPS 1, their liability for shared costs would be $83,283 per hectare. In relation to Lot 48, Vanguard's liability for the balance of the land not yet subdivided would amount to $174,784 per hectare under the CW Report 2007 and $178,013.24 per hectare under the 2008 Schedule. Mr Piggott's liability for the remainder of his land unsubdivided would be $133,402 per hectare under the CW Report 2007 and $102,058 per hectare under the 2008 Schedule. In the Shire of Eaton, a landowner who had previously subdivided 85.11% of its land would face a further 2007 contribution of $338,550 per hectare. The imposition of the condition of the type proposed by the intervenors would result in inequity in relation to costs imposed on further subdivisions within the area.
94Third, for the reasons we have discussed above, there is considerable uncertainty as to the existence or extent of obligations arising from previous subdivisions. Conditions calculated in the manner suggested by the intervenors assume a pre-existing obligation, or an obligation created by TPS 1. Neither of those assumptions can be safely made. If, as Vanguard contends, it has fulfilled its obligation in respect to infrastructure costs relating to earlier subdivisions, or even some of the earlier stages, the imposition of the conditions sought by the intervenors would have the effect of setting aside the discharge of prior obligations so as to meet a shortfall which the intervenors might otherwise be required to meet. The use of a planning condition for that purpose, is in our view, inappropriate.
Conclusion in relation to Vanguard
95For those reasons, we consider that any condition on subdivision of Stage 10 and a portion of Stage 8B(i) of the Kingston Estate should reflect the amount payable in respect of the area of land the subject of the application for subdivisional approval. The condition should not have the effect of requiring payment of any shortfall sought to relate to any earlier stage of subdivision.
96The parties were agreed that they would formulate the terms of the appropriate condition on subdivision approval for Stage 10 and Stage 8B(i) of the Kingston Estate. The parties should file a minute of proposed orders within 21 days of the date of delivery of these reasons.
Conclusion in relation to the Piggott application
97In order to clear the conditions on the plan of subdivision on the balance of Part Lot 43, the intervenors require the full payment of the proportion of the shared costs which the whole of the original Part Lot 43 bears to the total scheme area, less the contribution of $21,285 paid by Mr Piggott in relation to the subdivision 6.4157 hectares in 1995. Mr Piggott has paid a total of $852,501.54, being the shared costs contribution attributable to that portion of land the subject of the subdivision in respect of which clearance was sought.
98For the reasons set out above, the payment made by Mr Piggott was a payment in accordance with the requirements of TPS 1. If it had been accepted, as it should have been, by the intervenors and in turn the Commission, the deposited plan would have been approved. The requirement now pressed by the intervenors goes beyond that obligation by requiring a contribution related to the area of the earlier subdivision the subject of the 1995 approval. Mr Piggott was entitled to clearance of the condition on payment of the sum of $852,501.68 and the refusal by the Commission to endorse its approval should be set aside, and the Commission should be directed to endorse its approval on the plan of subdivision submitted by Mr Piggott.
Orders
In matter DR 71 of 2008:
1.The parties are to file a minute of proposed orders reflecting these reasons within 14 days of the date of the order.
2.There is liberty to apply if the parties are unable to agree the form of proposed orders.
In matter DR 191 of 2008:
1.The deemed refusal by the Western Australian Planning Commission to endorse approval on deposited plan DP 49799 in respect to a proposed subdivision of Part Lot 43 Ditchingham Place, Australind is set aside.
2.The Western Australian Planning Commission is directed to endorse its approval on deposited plan DP 49799.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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