BESTRY PROPERTY GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2019] WASAT 15
•3 APRIL 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BESTRY PROPERTY GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 15
MEMBER: JUDGE D PARRY, DEPUTY PRESIDENT
MR P DE VILLIERS, MEMBER
HEARD: 6 AND 7 FEBRUARY 2019
DELIVERED : 3 APRIL 2019
FILE NO/S: DR 162 of 2017
BETWEEN: ALAN BESTRY
First Applicant
PETER ANTHONY BESTRY
Second Applicant
ROY BESTRY
Third Applicant
LAUREL BESTRY
Fourth Applicant
JULIE ANNE BESTRY
Fifth Applicant
BESTRY PROPERTY GROUP PTY LTD
Sixth Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision Conditions of subdivision approval Development contributions Public Open Space Planning policy requiring 10 per cent of gross subdivisible area to be given up for Public Open Space Site includes 3,525m2 area reserved for 'Public Open Space and Local Authority Purposes' under local planning scheme Disputed condition requires '[t]he 1390m2 proposed reserve shown on the plan of subdivision ... being … vested in the Crown …, such land to be ceded free of cost and without any payment of compensation by the Crown' 'The 1390m2 proposed reserve' forms part of the land reserved for 'Public Open Space and Local Authority Purposes' under local planning scheme Applicants claimed compensation for injurious affection from local government in relation to reserved part of the site following refusal of development application in relation to that land Local government elected to acquire land instead of paying compensation for injurious affection Whether condition can lawfully be imposed Whether condition is for ulterior purpose to defeat a vested right to compensation for injurious affection Nexus Whether condition fairly and reasonably relates to subdivision Whether sufficient Public Open Space in locality of site Determination of relevant 'locality' for Public Open Space purposes Whether Public Open Space includes Regional Open Space reserved under region planning scheme Weight to be given to local government Public Open Space Strategy which is relevantly inconsistent with State planning policy and Development Control Policy of Western Australian Planning Commission Split planning system in Western Australia between subdivision control and assessment and development control and assessment under which subdivision is under exclusive authority of Western Australian Planning Commission (and not local governments) Whether condition is manifestly unreasonable Exercise of discretion Whether reasonable and appropriate to impose condition in circumstances of the case Whether any cogent reason to depart from planning policy requiring 10 per cent of gross subdivisible area to be given up for Public Open Space Proximity and utility of Regional Open Space for Public Open Space purpose Development contributions to be charged 'equitably' Words & phrases: 'Public Open Space', 'Regional Open Space'
Legislation:
City of Stirling District Planning Scheme No. 2
City of Stirling Local Planning Scheme No. 3, cl 1.1.2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 26, s 29, s 61(1), s 135, s 135(1), s 138(1), s 143(1), s 143(1)(c), s 143(2), s 152, s 152(1), s 153, s 153(1), s 154, s 154(1), s 154(2), s 154(2)(a), s 154(2)(b), s 187, s 187(1), s 187(2), s 188, s 188(1), s 241, s 241(1), s 241(1)(a), s 253(2), s 253(3), Pt 3, Pt 10, Div 2, Div 3, Pt 11, Div 2, Div 4
State Administrative Tribunal Act 2004 (WA), s 27, s 31, s 31(1), s 31(2), s 31(2)(c), s 46(1)
Town Planning and Development Act 1928 (WA)
Result:
Respondent's decision made on 16 November 2018 to impose conditions 1 and 19 on subdivision approval affirmed
Summary of Tribunal's decision:
The applicants sought review by the Tribunal of two conditions of subdivision approval imposed by the Western Australian Planning Commission which required the applicants to denote and cede a particular part of the land the subject of the subdivision application to the Crown, free of cost and without any payment of compensation, for Public Open Space. The area required to be given up for Public Open Space equates to 10 per cent of the gross subdivisible area (with certain adjustments) and forms part of a larger area which is reserved for 'Public Open Space and Local Authority Purposes' under the local planning scheme. Having been refused development approval in relation to the reserved land, the applicants claimed compensation for injurious affection from the responsible local government. The local government elected to acquire the reserved land instead of paying compensation for injurious affection.
The applicants submitted that the disputed conditions cannot lawfully be imposed by the Tribunal, because they are for an ulterior purpose of defeating their accrued right to compensation for injurious affection, particularly given the local government's election to acquire the land. The Tribunal did not accept the applicants' submission, because it conflates two separate, independent and distinct statutory processes. The first statutory process involves the application for approval and the assessment and determination of the proposed subdivision and, if it merits approval, the imposition of appropriate conditions, including development contribution conditions, which are to be carried out before the subdivision approval becomes effective. This is a planning process and the Tribunal found that the disputed conditions reflect and accord with the planning principles set out in the State planning framework for a subdivider to cede to the Crown, free of cost and without any payment of compensation, 10 per cent of the gross subdivisible area for Public Open Space to meet the recreational needs of the incoming population of the subdivision and are therefore for a planning purpose. The second (separate, independent and distinct) statutory process involves the applicants' claim for compensation and the local government's election to acquire the reserved land instead of paying compensation. This does not involve a planning process, but rather a process of acquisition of reserved land and the determination of the price at which the land may be acquired by the local government. Although the effect of the second process is that the applicants will be unable to vest the particular part of the land referred to in the disputed conditions in the Crown, because the local government will become the owner of that part under its election to acquire, the conditions are capable of clearance by the Commission accepting cash in lieu. The clearance of the disputed conditions by the payment of cash in lieu (as part of the first process) does not deny or interfere with the applicants' right to receive from the local government the value of the reserved land (as part of the second process).
The Tribunal also determined that the disputed conditions fairly and reasonably relate to the subdivision, are not so unreasonable that no reasonable planning authority could impose them, and are reasonable and appropriate in the exercise of planning discretion in the circumstances of the case.
The Tribunal therefore affirmed the Commission's decision to impose the disputed conditions.
Category: B
Representation:
Counsel:
| First Applicant | : | Mr PG McGowan and Ms L Rowley |
| Second Applicant | : | Mr PG McGowan and Ms L Rowley |
| Third Applicant | : | Mr PG McGowan and Ms L Rowley |
| Fourth Applicant | : | Mr PG McGowan and Ms L Rowley |
| Fifth Applicant | : | Mr PG McGowan and Ms L Rowley |
| Sixth Applicant | : | Mr PG McGowan and Ms L Rowley |
| Respondent | : | Mr IA Repper and Ms E O'Keeffe |
Solicitors:
| First Applicant | : | Rowley Legal |
| Second Applicant | : | Rowley Legal |
| Third Applicant | : | Rowley Legal |
| Fourth Applicant | : | Rowley Legal |
| Fifth Applicant | : | Rowley Legal |
| Sixth Applicant | : | Rowley Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126; (2014) 86 SR (WA) 114
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98
Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305
Lloyd v Robinson [1962] HCA 36; (1962) 109 CLR 142; (1962) 8 LGRA 247
Love and Western Australian Planning Commission [1999] WATPAT 4
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Reid v Western Australian Planning Commission [2016] WASCA 181
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
Tierney and Western Australian Planning Commission [2011] WASAT 153
Tierney and Western Australian Planning Commission [2011] WASAT 192
Western Australian Planning Commission and Hogan [2018] WASAT 25
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Alan Bestry, Peter Anthony Bestry, Roy Bestry, Laurel Bestry, Julie Anne Bestry and Bestry Property Group Pty Ltd (applicants) seek review by the Tribunal of two conditions of subdivision approval imposed by the Western Australian Planning Commission (Commission). The disputed conditions require the applicants to denote and cede a particular part of the land the subject of the subdivision application to the Crown, free of cost and without any payment of compensation, for Public Open Space. The area required to be ceded forms part of a larger portion of the applicants' land which is reserved for 'Public Open Space and Local Authority Purposes' under the City of Stirling Local Planning Scheme No. 3 (LPS 3 or Scheme).
Having been refused development approval by the City of Stirling (City or Council) in relation to the part of the site that is reserved for 'Public Open Space and Local Authority Purposes', the applicants claimed compensation from the City for injurious affection to the reserved land, due to or arising out of the reservation. The City elected to acquire the reserved land instead of paying compensation for injurious affection.
Although the applicants challenge the disputed conditions on other grounds as well, a principal ground of challenge and issue in this review is whether the disputed conditions are for an ulterior purpose of defeating the applicants' accrued right to compensation for injurious affection, particularly given the City's election to acquire the land, and therefore whether the conditions can lawfully be imposed by the Tribunal.
Site and locality
The land the subject of the subdivision application comprises three lots known as Lot 6 Lancelot Street, Carine (Lot 6), Lot 400 Lancelot Street, Carine (Lot 400) and Lot 9000 Balcatta Road, Balcatta (Lot 9000)[1] (site). The site has road frontages to Duffy Road (to the west), Peruvale Street (in the middle of the site, to the north) and Lancelot Street (to the north-east). Lot 6 has an area of 12,545m2, Lot 400 has an area of 1,839m2 and Lot 9000 has an area of 4,920m2. The total area of the site is 19,304m2.
[1] In these reasons, 'Lot 9000' refers to the portion of Lot 9000 Balcatta Road, Balcatta (Deposited Plan No. 39498, Certificate of Title Volume 2770 Folio 371) that lies to the north of Reid Highway.
The site is located immediately to the north-west of the intersection of Reid Highway (which runs east-west) and Mitchell Freeway (which runs north-south) in the suburb of Carine. However, the site has no direct access to either of those major regional roads.
Lot 6, Lot 400 and the eastern part of Lot 9000 (which has an area of 1,395m2) is zoned 'Residential' with a residential density coding of 'R20' under LPS 3. The western and central part of Lot 9000 (which has an area of 3,525m2)[2] is reserved for 'Public Open Space and Local Authority Purposes' under the Scheme (reserved land).
[2] Parties' Agreed Bundle of Documents (Exhibit 3) tab 72 page 1143. This document is a Report and Valuation prepared by MMJ Real Estate (WA) Pty Ltd on behalf of Alan Bestry, Laurel Bestry, Roy Bestry, Peter Bestry and Julie Anne Bestry dated 13 August 2018 and states that the 'portion of Lot 9000 reserved for [Public Open Space]' has an area of 3,525m2. In the evidence and submissions, the parties generally referred to the reserved land as having this area and, consequently, so do we in these reasons. However, we note that in its 'Election to acquire land instead of paying compensation for injurious affection' (Exhibit 12) dated 5 February 2019, the City identifies the portion of Lot 9000 to which its election to acquire relates as having an area of 3,522m2 (at [5] and in Attachment 1).
The reserved land is covered by mature bush comprising a variety of native trees and plants. The reserved land abuts Arbuckle Reserve (to the north) which is a local reserve with an area of 10,852m2 and is also reserved for 'Public Open Space and Local Authority Purposes' under the Scheme. Although there are a series of small posts used to delineate the boundary of Arbuckle Reserve, there is no fence restricting movement between Arbuckle Reserve and Lot 9000. Mr Peter Wright, who is a town planner with 14 years' experience and is employed as a Senior Planning Officer by the Department of Planning, Lands and Heritage, and who was called by the Commission, gave evidence that whereas Arbuckle Reserve is 'substantially grassed and reticulated which allows for active recreational use',[3] the area the subject of the disputed conditions 'will provide increased passive recreational opportunities for future residents [of the site]'[4] and 'will allow complementary passive recreational opportunities' to the active recreational opportunities in Arbuckle Reserve.[5] Mr Wright's evidence in this regard was not questioned or contradicted, and we accept it. Although Mr Paul Bashall, who is a consultant town planner with 40 years' experience and who was called by the applicants, gave evidence that 'there is no pressing need to secure the land [the subject of the disputed conditions] into the hands of the Crown', he acknowledged that this land would provide 'passive recreation' and, indeed, observed that 'the land is not fenced off from Arbuckle reserve and no doubt the locals use it passively already'.[6]
[3] Witness statement of Peter Graham Wright dated 21 January 2019 (Exhibit 6) at [79].
[4] Witness statement of Peter Graham Wright dated 21 January 2019 (Exhibit 6) at [78].
[5] Witness statement of Peter Graham Wright dated 21 January 2019 (Exhibit 6) at [79].
[6] Witness statement of Paul William Talbot Bashall (Exhibit 7) at [55].
The site comprises 'the last substantial portion of remaining land to be developed'[7] in the area bounded by Reid Highway (to the south), Mitchell Freeway (to the east), Beach Road (to the north) and the Carine Regional Open Space (to the west). This area is zoned 'Residential' with a residential density coding of 'R20' under LPS 3, with the exception of a property at the intersection of Beach Road and Duffy Road (at the northern end of this area) which is zoned 'Service Station'.
[7] Witness statement of Peter Graham Wright dated 21 January 2019 (Exhibit 6) at [30].
The area bounded by Reid Highway, Mitchell Freeway, Beach Road and the Carine Regional Open Space also includes five local reserves which are reserved for 'Public Open Space and Local Authority Purposes' under the Scheme and are in public ownership, one of which is Arbuckle Reserve.[8] These locations (and the reserved land) were first reserved for 'Public Open Space and Local Authority Purposes' under the City of Stirling District Planning Scheme No. 2 (TPS 2), which commenced upon gazettal on 13 September 1985.[9] The reserved land is the last land reserved for Public Open Space under LPS 3, in the area bounded by Reid Highway, Mitchell Freeway, Beach Road and the Carine Regional Open Space, in private ownership.
[8] Parties' Agreed Bundle of Documents (Exhibit 3) tab 23 page 404.
[9] Parties' Agreed Bundle of Documents (Exhibit 3) tab 19 page 222.
Reid Highway and Mitchell Freeway are reserved for 'Primary Regional Road' under the Metropolitan Region Scheme (MRS). The Carine Regional Open Space is reserved for 'Parks and Recreation' under the MRS.[10]
Subdivision application, review proceeding, reconsiderations and conditions in dispute
[10] Parties' Agreed Bundle of Documents (Exhibit 3) tab 23 page 404.
On 15 December 2016, the applicants applied to the Commission, under s 135 of the Planning and Development Act 2005 (WA) (PD Act), for approval to subdivide the site into 23 residential lots and a balance lot of 4,624m2 (subdivision application). As the Commission had not approved or refused to approve the subdivision application within the period of 90 days specified in s 143(2) of the PD Act, on 12 May 2017, the applicants gave a written notice of default to the Commission, under s 253(2) of the PD Act. On 17 May 2017, the applicants commenced this proceeding in the Tribunal, at that stage seeking review of the deemed refusal of the subdivision application, under s 253(3) of the PD Act.
On 1 June 2017, at the request of the parties, the first directions hearing (which had been listed for 2 June 2017) was vacated and the matter was referred directly for mediation. Following mediation on 28 July 2017 and 21 August 2017, the Tribunal made an order, under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), inviting the Commission to reconsider its decision (that is, to make an actual decision in relation to the subdivision application) at its meeting on or before 18 September 2017.
On 15 September 2017, the Commission granted approval to the subdivision application, subject to 28 conditions.[11]
[11] Parties' Agreed Bundle of Documents (Exhibit 3) tab 9 pages 84 92.
On 20 October 2017, the Tribunal ordered the applicants, by 27 October 2017, to identify any of the conditions which had been imposed by the Commission on 15 September 2017 they objected to, give brief reasons for each objection and set out any alternative or additional conditions they would contend should be imposed, and referred the matter for mediation in relation to any disputed conditions. On 27 October 2017, the applicants filed a document in which they disputed 20 of the 28 conditions of approval.[12]
[12] Parties' Agreed Bundle of Documents (Exhibit 3) tab 10 pages 110 116.
Following mediation on 15 November 2017, 22 January 2018 and 8 March 2018, the Tribunal made a further order, under s 31(1) of the SAT Act, inviting the Commission to reconsider its decision (made on 15 September 2017) on or before 6 April 2018. The Tribunal also made an order requiring the applicants to file and serve a statement of conditions that remained in dispute by 20 April 2018.
On 4 April 2018, the Commission decided to retain, modify or delete certain conditions of subdivision approval.[13] On 20 April 2018, the applicants filed a document in which they objected to eight of the remaining 23 conditions of approval.
[13] Parties' Agreed Bundle of Documents (Exhibit 3) tab 10 pages 93-96 and tab 11 pages 133 138.
Following mediation on 14 May 2018 and 18 September 2018, the Tribunal made a further order, under s 31(1) of the SAT Act, inviting the Commission to reconsider its decision (made on 4 April 2018) on or before 23 October 2018. The date by which the Commission was invited to reconsider its decision was subsequently extended by the Tribunal to 6 November 2018 and then to 27 November 2018. On 16 November 2018, the Commission decided to retain, replace or delete certain conditions of subdivision approval.[14] Because a number of conditions had been deleted in the reconsiderations on 4 April 2018 and 16 November 2018, the Commission produced a 'Schedule of Consolidated Conditions' which it imposed on approval of the subdivision application setting out 20 remaining conditions of approval.[15]
[14] Parties' Agreed Bundle of Documents (Exhibit 3) tab 14 pages 168 170.
[15] Parties' Agreed Bundle of Documents (Exhibit 3) tab 15 pages 172 177.
At a directions hearing on 23 November 2018, the applicants indicated that they dispute two of the 20 remaining conditions. The conditions in dispute, as numbered in the 'Schedule of Consolidated Conditions', are conditions 1 and 19, which state as follows:[16]
1.The plan of subdivision is to be modified in accordance with the attached plan date stamped 10 October 2018, which includes the denotation of 1390m2 of Lot 9000 as Public Open Space. (Western Australian Planning Commission)
19.The 1390m2 proposed reserve shown on the plan of subdivision date stamped 10 October 2018 (attached) being shown on the diagram or plan of survey (deposited plan) as reserve for Recreation and vested in the Crown under Section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown. (Western Australian Planning Commission)
[16] Parties' Agreed Bundle of Documents (Exhibit 3) tab 15 pages 172 and 176.
Condition 1 is 'only disputed [by the applicants] to the extent that it requires modification of the plan of subdivision to accord with Condition [19]'.[17] Thus, the only matter in dispute between the parties in this review relates to the requirement of the Commission that the applicants must show the 1,390m2 area as 'reserve for Recreation' (that is, for Public Open Space) on the deposited plan and vest it in the Crown under s 152 of the PD Act 'free of cost and without any payment of compensation by the Crown'. The 1,390m2 area forms the eastern part of the reserved land. As discussed later in these reasons, the applicants contend that a condition requiring the ceding 'free of cost and without any payment of compensation by the Crown' of the specified part of the reserved land cannot lawfully be imposed by the Tribunal on review and, further or alternatively, that it would not be reasonable and appropriate to impose such a condition in the exercise of planning discretion in the circumstances of this case.
[17] Applicant's [sic] statement of issues, facts and contentions dated 3 December 2018 (Exhibit 1) at [15].
The 'attached plan date stamped 10 October 2018' (referred to in condition 1) and the 'plan of subdivision date stamped 10 October 2018 (attached)' (referred to in condition 19) is reproduced as an attachment to these reasons. The plan identifies the area of the site with a dashed line which is referred to in the legend as 'application area boundary'. The plan identifies the 1,390m2 area, which is referred to in conditions 1 and 19 (disputed conditions), with a solid line which is referred to on the plan as 'Public Open Space To Be Ceded 1390m2 *Not To Scale' (1,390m2 area).
The 1,390m2 area and the part of the site to its west together constitute the reserved land.
The area of 1,390m2, referred to in the disputed conditions, was calculated and nominated by the Commission on the basis that it equates to 10 per cent of the gross subdivisible area of the site, excluding the reserved land and the area of Lot 400, rounded down to the nearest 10m2.[18] The reserved land (which, as indicated earlier, has an area of 3,525m2) has been excluded from the gross subdivisible area for the purposes of Public Open Space contribution, because, as it is reserved for 'Public Open Space and Local Authority Purposes' under LPS 3, it is not subdivisible for residential purposes. The area of Lot 400 (1,839m2) has been excluded from the gross subdivisible area for the purposes of Public Open Space contribution, because a 10 per cent Public Open Space contribution was already obtained for what is now Lot 400 under a subdivision approval in 1975.[19] Mr Wright set out the calculation process for the required Public Open Space contribution in the disputed conditions in the following table:[20]
[18] Witness statement of Peter Graham Wright dated 21 January 2019 (Exhibit 6) Attachment 'PGW11' and ts 10-11, 6 February 2019.
[19] Applicant's [sic] statement of issues, facts and contentions dated 3 December 2018 (Exhibit 1) at [39] [41] and respondent's responsive statement of issues, facts and contentions dated 21 December 2018 (Exhibit 2) at [43].
[20] Witness statement of Peter Graham Wright dated 21 January 2019 (Exhibit 6) Attachment 'PGW11'.
PROPOSED SUBDIVISION PUBLIC OPEN SPACE CALCULATION
Lot sizes
Area (m2)
Lot 6 (45) Lancelot Street, Carine
12545
Lot 400 (46) Lancelot Street, Carine
1839
Lot 9000 (139) Balcatta Road, Balcatta
4920
Total application area
19304
Public Open Space calculation - Subdivision area
Area (m2)
Total area of subdivision application
19304
Public Open Space (POS) Reserved Land
-3525
Lot 400 (46) Lancelot Street, Carine
-1839
Remaining subdivisible land (Gross)
13940
POS contribution -10% of Gross subdivisible area
1394
Compensation application and City's election to acquire the reserved land
Part 11 of the PD Act (s 171 s 197 inclusive) concerns compensation and acquisition. In particular, Div 2 of Pt 11 of the PD Act (s 172 s 183 inclusive) concerns compensation where land is 'injuriously affected' by a planning scheme. Section 173(1) of the PD Act confers a right on any person whose land is 'injuriously affected' by the making or amendment of a planning scheme to obtain compensation in the following terms:
Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.
Section 174 of the PD Act prescribes the circumstances in which land is 'injuriously affected' by the making or amendment of a planning scheme in terms which relevantly state as follows in subsection (1):
Subject to subsection (2), land is injuriously affected by reason of the making or amendment of a planning scheme if, and only if —
(a)that land is reserved (whether before or after the coming into operation of this section) under the planning scheme for a public purpose; …
As indicated earlier, the western and central part of Lot 9000, which has an area of 3,525m2, was initially reserved under TPS 2 for 'Public Open Space and Local Authority Purposes'. As also indicated earlier, this reservation was continued under LPS 3, which commenced upon gazettal on 6 August 2010 and which, by cl 1.1.2, revoked TPS 2. 'Public Open Space and Local Authority Purposes' is a 'public purpose' within the meaning of s 174(1)(a) of the PD Act. Thus, the reserved land is 'injuriously affected' under s 174(1)(a) of the PD Act for the purposes of Pt 11 of that Act.
Section 177 of the PD Act prescribes and limits when compensation is payable for injurious affection where land is reserved for a public purpose under a planning scheme. Section 177(1) of the PD Act states as follows:[21]
Subject to subsection (3), when under a planning scheme any land has been reserved for a public purpose, no compensation is payable by the responsible authority for injurious affection to that land alleged to be due to or arising out of such reservation until —
(a)the land is first sold following the date of the reservation; or
(b)the responsible authority —
(i)refuses an application made under the planning scheme for approval of development on the land; or
(ii)grants approval of development on the land subject to conditions that are unacceptable to the applicant.
[21] Emphasis added.
Section 178 of the PD Act prescribes and limits the time for making a claim for compensation for injurious affection to land by the making or amendment of a planning scheme in terms which include, in subsection (1), the following:[22]
[22] Emphasis added.
A claim for compensation for injurious affection to land by the making or amendment of a planning scheme is to be made —
(a)in the case of a claim in respect of injurious affection referred to in section 174(1)(a) or (b), at any time within 6 months after —
(i)the land is sold; or
(ii)the application for approval of development on the land is refused; or
(iii)the approval is granted subject to conditions that are unacceptable to the applicant;
…
Since land including the site was purchased on 24 September 1926 by John Bestry, who was the father and father-in-law of Roy and Laurel Bestry and the grandfather of Alan, Julie and Peter Bestry, the site has been held in the Bestry family and has not been sold.
On 15 March 2018, the applicants lodged a development application with the City seeking approval under LPS 3 for the construction of three grouped dwellings on Lot 9000, in particular, on the reserved land. On 7 August 2018, the Council refused the development application for 10 reasons of which seven relate to the reservation of the land for Public Open Space and the inconsistency of the proposed development with that reservation.[23] Consequently, a 'triggering event' for a compensation claim against the City, which is the responsible authority, occurred under s 177(1)(b)(i) of the PD Act upon the refusal of the development application on 7 August 2018. Under s 178(1)(a)(ii) of the PD Act, a claim for compensation for injurious affection had to be made within six months after the application for development approval was refused, that is by 7 February 2019.
[23] Parties' Agreed Bundle of Documents (Exhibit 3) tab 71, pages 1139-1140.
On 31 October 2018, the applicants claimed compensation from the City for injurious affection to the reserved land by the reservation of that land for a public purpose under LPS 3.[24]
[24] Parties' Agreed Bundle of Documents (Exhibit 3) tab 73, pages 1188-1189.
Section 179 of the PD Act concerns the amount of compensation for injurious affection due to land being reserved and states as follows:
(1)Subject to this Division, the compensation payable for injurious affection due to or arising out of the land being reserved under a planning scheme, where no part of the land is purchased or acquired by the responsible authority, is not to exceed the difference between —
(a)the value of the land as so affected by the existence of such reservation; and
(b)the value of the land as not so affected.
(2)The values referred to in subsection (1)(a) and (b) are to be assessed as at the date on which —
(a)the land is sold as referred to in section 178(1)(a); or
(b)the application for approval of development on the land is refused; or
(c)the approval is granted subject to conditions that are unacceptable to the applicant.
Section 187 of the PD Act enables the responsible authority to elect to acquire the land which is the subject of a claim for compensation for injurious affection instead of paying compensation. Section 187 of the PD Act states as follows:
(1)Where compensation for injurious affection is claimed as a result of the operation of the provisions of section 174(1), the responsible authority may at its option elect to acquire the land so affected instead of paying compensation.
(2)The responsible authority, within 3 months of the claim for injurious affection being made, is to by written notice given to the claimant —
(a)elect to acquire the land; or
(b)advise that it does not intend to acquire the land.
(3)Where the responsible authority elects to acquire the land as provided in subsections (1) and (2), if the responsible authority and the owner of the land are unable to agree as to the price to be paid for the land by the responsible authority, the price at which the land may be acquired by the responsible authority is to be the value of the land as determined in accordance with section 188.
(4)If —
(a)an owner of land claims compensation and the responsible authority elects to purchase the land instead of paying compensation; and
(b)the price to be paid for the land by the responsible authority has not been determined for the purposes of subsection (3),
the owner of the land may withdraw the claim for compensation and, upon that withdrawal, the election has no effect.
On 5 February 2019, the City elected to acquire the reserved land, under s 187(1) of the PD Act, instead of paying compensation.[25] The election was made within the three month period prescribed in s 187(2) of the PD Act. As provided in s 187(3) of the PD Act, if the City and the applicants are:
… unable to agree as to the price to be paid for the land by the [City], the price at which the land may be acquired by the [City] is to be the value of the land as determined in accordance with section 188.
[25] Election to acquire land instead of paying compensation for injurious affection dated 5 February 2019 (Exhibit 12).
Section 188 of the PD Act states as follows:
(1)The value of the land referred to in section 187(3) is to be —
(a)the value of the land on the date the responsible authority elects to acquire the land under that section; and
(b)determined without regard to any increase or decrease, if any, in value attributable wholly or in part to the planning scheme.
(2)Subject to subsection (4), the value of the land referred to in section 187(3) is to be determined —
(a)by arbitration in accordance with the Commercial Arbitration Act 2012; or
(b)by the State Administrative Tribunal on the owner of the land applying to it for a determination of that value; or
(c)by some other method agreed upon by the responsible authority and the owner of the land.
(3)If arbitration has not commenced under subsection (2)(a), an application has not been made under subsection (2)(b), and no method has been agreed under subsection (2)(c), within 12 months of the date on which the responsible authority elected to acquire the land, the responsible authority may —
(a)refer the matter for determination by arbitration in accordance with the Commercial Arbitration Act 2012; or
(b)apply to the State Administrative Tribunal for a determination of that value,
and the value determined under this subsection is to be the value of the land for the purposes of section 187.
(4)Where a dispute is referred for determination under subsection (3)(a) there is to be taken to be, for the purposes of the Commercial Arbitration Act 2012, an arbitration agreement to refer the dispute, and the parties to the agreement are to be taken to be the owner of the land and the responsible authority.
Under s 187(4) of the PD Act, if the price to be paid by the City for the purchase of the reserved land has not been determined for the purposes of s 187(3), then the applicants 'may withdraw the claim for compensation' and, upon that withdrawal, 'the election has no effect'. However, it is common ground between the parties that although this is a theoretical possibility, it is unlikely. Rather, it is likely that the price to be paid by the City for the purchase of the reserved land will be determined in one of the three ways set out in s 188(2) of the PD Act and that the land will be acquired by the City and incorporated into Arbuckle Reserve.
Legal and planning framework and principles
Subdivision control and assessment under the PD Act
Part 10 of the PD Act (s 133 - s 170 inclusive) concerns subdivision and development control.
As the Tribunal observed in Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 at [60] [61], Western Australia has a 'split planning system':
… under which subdivision control and assessment is undertaken by the Commission at State level whereas development control and assessment is generally undertaken by local governments [and, since 25 March 2011, by Development Assessment Panels under the Planning and Development (Development Assessment Panels) Regulations 2011 (WA)] applying local planning schemes and policies at local level. The Commission also undertakes some development control and assessment under region planning schemes, although certain of these functions are delegated to the relevant local government.
Subdivision control in Western Australia is regulated by Div 2, Div 3 and Div 4 of Pt 10 of the PD Act, whereas development control is regulated by Div 5 of the PD Act and local and region planning schemes. This split planning system is unique to Western Australia among Australian planning systems. In the other States and the Northern Territory, "development" relevantly includes subdivision of land so that development approval is required for subdivision and there is a single system of development/subdivision control and assessment which is generally administered by local governments: see Environmental Planning and Assessment Act 1979 (NSW) s 4 [now, s 1.5]; Planning and Environment Act 1987 (Vic) s 3; Integrated Planning Act 1997 (Qld) s 1.3.2 [now, Planning Act 2016 (Qld) s 6 and Sch 2 ('development' includes 'reconfiguring a lot' which includes 'creating lots by subdividing another lot')]; Development Act 1993 (SA) s 4; Land Use Planning and Approvals Act 1993 (Tas) s 3; and Planning Act 1993 [now, Planning Act] (NT) s 3. The Australian Capital Territory has a unique leasehold system of land tenure and primary land use control is through lease use clauses.
Thus, as the Tribunal said in Western Australian Planning Commission and Hogan [2018] WASAT 25 at [44]:[26]
… subdivision control and assessment in Western Australia falls within the exclusive authority (subject to review by the Tribunal) of the Commission (and not local governments).
[26] However, the relevant local government is required to be consulted, under s 142(1) of the PD Act, if the Commission is of the opinion that a plan of subdivision may affect the local government's functions, and the Commission is bound, by s 143(1) of the PD Act, to take into consideration any objections or recommendations contained in a memorandum forwarded by the relevant local government to the Commission under s 142.
Division 2 of Pt 10 of the PD Act (s 135 - 147 inclusive) concerns the requirement for approval to subdivide land and the determination of an application for subdivision approval and Div 3 of Pt 10 of the PD Act (s 148 s 157 inclusive) concerns conditions of subdivision approval. Section 135 of the PD Act requires the approval of the Commission to subdivide land in this State. Section 135(1) of the PD Act states as follows:
A person is not to –
(a)subdivide any lot; or
(b)amalgamate any lot with any other lot, whether within the same district or otherwise; or
(c)lay out, grant or convey a road,
without the approval of the Commission.
Section 138(1) of the PD Act enables the Commission to impose conditions on a grant of subdivision approval which are to be complied with before the Commission will endorse a diagram or plan of survey (also referred to as a 'deposited plan') to effect the subdivision. Section 138(1) of the PD Act states, in part, as follows:
The Commission may give its approval under section 135 … subject to conditions which are to be carried out before the approval becomes effective.
Further to s 138(1) of the PD Act authorising the imposition of conditions on subdivision approval 'which are to be carried out before the approval becomes effective', s 143(1)(c) of the PD Act also expressly authorises the imposition of conditions on subdivision approval in the context of setting out how the Commission is to determine a subdivision application. Section 143(1) of the PD Act states that the Commission is to determine a subdivision application in one of the following three ways:
… 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.
Conditions of subdivision approval which may be imposed under s 138(1) and s 143(1)(c) of the PD Act include conditions requiring the subdivider to provide or fund infrastructure and facilities to meet the demands arising from the development of the land the subject of the subdivision application.[27] Such conditions are generally referred to as 'development contributions' or 'developer contributions' conditions.
[27] See, in relation to development contributions for Public Open Space, for example, Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98, Tierney and Western Australian Planning Commission [2011] WASAT 153 (affirmed: Tierney and Western Australian Planning Commission [2011] WASAT 192) and Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126; (2014) 86 SR (WA) 114.
Section 152(1) of the PD Act specifically contemplates, and provides effect to, a condition of subdivision approval requiring land shown on a diagram or plan of survey relating to a subdivision being set aside and vested in the Crown for a nominated public purpose. Section 152(1) of the PD Act states, in part, as follows:
If the Commission has approved a subdivision of land subject to a condition that one or more portions of land shown on a diagram or plan of survey relating to the subdivision … are to vest in the Crown for any one or more of the following purposes —
…
(e)a reserve for … recreation;
…
then, subject to the encumbrances referred to in subsection (5), the land subject to the condition vests in the Crown by force of this section without any conveyance, transfer or assignment or the payment of any fee.
As discussed below, the 'standard development contribution requirement' for Public Open Space set out in Appendix 1 to State Planning Policy 3.6 Development Contributions for Infrastructure (SPP 3.6) is as follows:
Public open space equivalent to 10 per cent of the gross subdivisible area, or alternatively, a cash-in-lieu contribution, in accordance with WAPC policies and the Planning and Development Act 2005.
Section 153 of the PD Act provides for payment of money in lieu of giving up land for Public Open Space as follows:
(1)If the Commission has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown for parks, recreation grounds or open spaces generally and —
(a)the Commission, after consultation with the local government in whose district the portion is situated, so requires; or
(b)the Commission, the local government in whose district the portion is situated and the owner of the land so agree,
the owner of that land is to, in lieu of setting aside the portion, pay to that local government a sum that represents the value of the portion.
(2)The Commission is not to impose a requirement referred to in subsection (1)(a) in respect of a plan of subdivision that creates less than 3 lots.
Section 154 of the PD Act creates a statutory trust for money paid in lieu of giving up land for Public Open Space and provides for the operation of the statutory trust as follows:
(1)All money received by a local government under section 153 is to be paid into a separate account of the trust fund of the local government established under section 6.9 of the Local Government Act 1995.
(2)The money is to be applied —
(a)for the purchase of land by the local government for parks, recreation grounds or open spaces generally, in the locality in which the land included in the plan of subdivision referred to in section 153 is situated; or
(b)in repaying any loans raised by the local government for the purchase of any such land; or
(c)with the approval of the Minister, for the improvement or development as parks, recreation grounds or open spaces generally of any land in that locality vested in or administered by the local government for any of those purposes; or
(d)with the approval of the Commission, in reimbursing an owner (the first owner) of land included in a joint subdivision agreement for land that has been set aside and vested for parks, recreation grounds or open space where —
(i)the first owner set aside a greater proportion of land than another owner (the second owner); and
(ii)as a consequence, the local government and the Commission approved of the second owner paying to the local government a sum in lieu of land being set aside for that purpose and that sum, or the relevant proportion of that sum, being reimbursed to the first owner for the excess proportion of land set aside by the first owner.
(3)If interest is earned from the investment of moneys held under subsection (1), that money is to be applied for a purpose set out in subsection (2).
In Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98, the Tribunal held, in relation to a decision by the Commission to accept payment of money in lieu of giving up land for Public Open Space under the provisions of the Town Planning and Development Act 1928 (WA) (TPD Act), at [54] as follows:
In my opinion, the decision of the respondent to approve a cashinlieu payment under s 20C of the TPD Act did not involve the exercise of a discretion by the respondent "in making the reviewable decision", within the meaning of those words in s 29(1) of the [SAT] Act. The "reviewable decision" in the present case was the decision of the respondent to require the applicant to comply with certain conditions the respondent thought fit to impose before approving the plan of subdivision: TPD Act s 24(3). It is apparent from the terms of s 20C of the TPD Act that the respondent's discretion to approve a cashinlieu payment only arose where it "has approved a plan of subdivision of land upon condition that portion thereof be set aside and vested in the Crown". In other words, the respondent's discretion under s 20C of the TPD Act to approve a cashinlieu payment only arose after, and in consequence of, the exercise of its discretion under s 24(3) of the TPD Act to require the applicant to comply with conditions before approving the plan. As the discretion to approve a cashinlieu payment was not exercisable by the respondent "in making the reviewable decision", the Tribunal does not have power to exercise that discretion in its review of the relevant "reviewable decision" under s 29(1) of the [SAT] Act. Moreover, as neither s 26 of the TPD Act nor any other provision of an enabling Act gives the Tribunal jurisdiction to review the respondent's decision to approve a cashinlieu payment, that decision is not a "reviewable decision" amenable to the Tribunal's review jurisdiction.
The TPD Act was replaced by the PD Act on 9 April 2006.[28] In Tierney and Western Australian Planning Commission [2011] WASAT 192 (Tierney and Western Australian Planning Commission (No. 2)),[29] the Tribunal determined that the reasoning in Empire Securities Pty Ltd and Western Australian Planning Commission at [54] is also applicable in relation to a decision of the Commission to accept payment of money in lieu of giving up land for Public Open Space under the provisions of the PD Act. In Tierney and Western Australian Planning Commission (No. 2), the Tribunal said the following at [28]:
While there are differences between s 153 of the PD Act and s 20C of the TPD Act, their terms, for the purposes of the analysis at [54] of the decision in Empire Securities, are relevantly identical. In particular, under s 153 of the PD Act, the Commission's discretion to require or agree to a cash in lieu payment only arises where it 'has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown …'. In the review application determined by Member Moore, the Tribunal had no power or function in relation to the payment of cash in lieu of setting aside land for open space. The decision of the Commission to approve a cash in lieu payment under s 153 of the PD Act did not involve the exercise of a discretion by the Commission 'in making the reviewable decision' which was the subject of the review proceeding, within the meaning of those words in s 29(1) of the SAT Act. Moreover, there is no provision of an enabling Act which gives the Tribunal jurisdiction to review the Commission's decision to approve a cash in lieu payment.
[28] Gazette 21 March 2006 page 1077.
[29] Tierney and Western Australian Planning Commission (No. 2) involved an application for review by a judicial member under s 244 of the PD Act of the determination of the Tribunal in Tierney and Western Australian Planning Commission [2011] WASAT 153.
However, as the Tribunal said in Tierney and Western Australian Planning Commission (No. 2) at [23], although SAT does not have jurisdiction or power to require payment of cash in lieu of giving up land for Public Open Space, where it is lawful, and reasonable and appropriate, to do so, the Tribunal may impose a condition of subdivision approval requiring an area of land to be shown on the deposited plan as a 'reserve for recreation' and vested in the Crown under s 152 of the PD Act, and ceded free of cost and without any payment or compensation by the Crown, 'in order to facilitate a cash in lieu payment under s 153 of the PD Act'.[30] In Tierney and Western Australian Planning Commission (No. 2) the Tribunal observed and held at [23] as follows:[31]
… [I]n many subdivisions, including the subdivision that was before the Tribunal, the size or location of the land make it inappropriate for the owner to, in fact, cede 10% of the gross subdivisible area as public open space. It is for this reason that s 153 of the PD Act (and, prior to the commencement of the PD Act, s 20C of the Town Planning and Development Act 1928 (WA) (TPD Act)) enables the Commission to require or agree to the payment of cash in lieu of the actual ceding of land for public open space. In cases where the consent authority decides that 'the 10 per cent requirement' should not be departed from, but the size or location of the land make it inappropriate for the owner to, in fact, cede part of the land as open space, the imposition of a standard condition in the form of condition 7 is appropriate and necessary in order to facilitate a cash in lieu payment under s 153 of the PD Act. However, it is not necessary for the Commission to have already determined or agreed to the payment of cash in lieu or for there to have been an agreement that the Commission will require cash in lieu, in order for the standard condition requiring the vesting of a specified area for public open space to be imposed.
Planning framework in relation to development contributions for Public Open Space
[30] The relevant condition (condition 7) considered in Tierney and Western Australian Planning Commission (No. 2) stated as follows ([8]):
An area(s) of land at least 404.7 [square metres] in area, in a position to be agreed with the WAPC, being shown on the Deposit Plan as 'Reserve for Recreation' and vested in the Crown under section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown. (Local Government).
[31] Emphasis added.
SPP 3.6 is a State planning policy made under Pt 3 of the PD Act (s 26 s 32 inclusive) which commenced upon gazettal on 20 November 2009. Section 26(1) of the PD Act states as follows:
The Commission may, with the approval or on the direction of the Minister, prepare State planning policies.
Section 29 of the PD Act concerns the approval of State planning policies and states as follows:
(1)The Governor may approve a State planning policy prepared by the Commission with or without such modifications as the Minister may recommend and the Governor thinks necessary to make and which the Governor is by this subsection authorised to make.
(2)A State planning policy has no force or effect until it is approved by the Governor and published in the Gazette.
Section 241(1) of the PD Act states, in part, as follows:
In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including —
(a)any State planning policy which may affect the subject matter of the application; …
In determining this proceeding, the Tribunal is required by s 241(1)(a) of the PD Act to have 'due regard' to SPP 3.6. Under 'Introduction and Background', SPP 3.6 states, in part, as follows:[32]
…
This policy sets out the principles and considerations that apply to development contributions for the provision of infrastructure in new and established urban areas.
The careful planning and coordination of infrastructure is fundamental to the economic and social well-being of any community. New urban development and redevelopment needs to ensure the cost-efficient provision of infrastructure and facilities, such as … open space … and recreation facilities. All of these utilities and services greatly influence the standard of living, mobility and lifestyle choices of a community.
Public infrastructure is funded through various sources including state government taxes, local government property rates, federal assistance grants, user and access charges, fees and charges, and development contributions. In Western Australia, development contributions for infrastructure have long been accepted as an essential part of the planning system. Land developers are responsible … for some community infrastructure, including public open space … which are necessary for the development.
…
This policy follows a joint study into development contributions undertaken by the Urban Development Institute of Australia (UDIA), Western Australia Local Government Association (WALGA) and the Department for Planning and Infrastructure (DPI). It replaces Planning Bulletins 18 and 41 and sets out the standard development contributions for infrastructure applied by the WAPC on the subdivision, strata subdivision, or development of land. It also provides a consistent, accountable and transparent system for local governments to plan and charge for development contributions over and above the standard provisions through development contribution plans.
…
[32] Parties' Agreed Bundle of Documents (Exhibit 3) tab 27 pages 581-582.
Clause 4 of SPP 3.6 sets out the objectives of the policy in the following terms:[33]
The objectives of this policy are –
•to promote the efficient and effective provision of public infrastructure and facilities to meet the demands arising from new growth and development;
•to ensure that development contributions are necessary and relevant to the development to be permitted and are charged equitably among those benefiting from the infrastructure and facilities to be provided;
•to ensure consistency and transparency in the system for apportioning, collecting and spending development contributions;
•to ensure the social well-being of communities arising from, or affected by, development.
[33] Parties' Agreed Bundle of Documents (Exhibit 3) tab 27 page 582.
Clause 5 of SPP 3.6 sets out policy measures, including, in cl 5.3, imposition of development contributions. Clause 5.3 of SPP 3.6 states, in part, as follows:[34]
…
Where local governments are seeking development contributions beyond the standard provisions outlined in appendix 1, they must be supported by a development contribution plan which identifies the need for such infrastructure for the relevant development contribution area or by a voluntary agreement between a developer and the relevant local government.
…
[34] Parties' Agreed Bundle of Documents (Exhibit 3) tab 27 page 583 (emphasis added).
Clause 5.3.2 of SPP 3.6 states as follows in relation to the calculation and application of development contributions:[35]
Development contributions are generally calculated and applied by way of conditions of subdivision, strata subdivision or development, particularly in greenfield areas. Development contributions may also be sought in infill and redevelopment areas at the time of subdivision, strata subdivision or development.
They may be calculated and applied as –
•standard conditions of subdivision or strata subdivision;
•conditions of development.
…
[35] Parties' Agreed Bundle of Documents (Exhibit 3) tab 27 page 583 (emphasis added).
One of the 'standard provisions' referred to in cl 5.3 of SPP 3.6 and 'standard conditions of subdivision' referred to in cl 5.3.2 of SPP 3.6, set out in Appendix 1 to SPP 3.6 (which is entitled 'Standard development contribution requirements') under the column 'Land contributions', is as follows:[36]
Public open space
Public open space equivalent to 10 per cent of the gross subdivisible area, or alternatively, a cash-in-lieu contribution, in accordance with WAPC policies and the Planning and Development Act 2005.
[36] Parties' Agreed Bundle of Documents (Exhibit 3) tab 27 page 586.
The effect of cl 5.3, cl 5.3.2 and Appendix 1 in SPP 3.6 is that a development contribution plan is not required in order for the Commission (or the Tribunal on review) to impose the 'standard condition' of subdivision approval requiring the subdivider to give up 10 per cent of the gross subdivisional area for Public Open Space.
In July 2016, the Commission published a draft replacement of SPP 3.6. Mr Wright gave evidence, which was not questioned or contradicted, and which we accept, that 'there are no changes from the current SPP 3.6 which are relevant to the proposed subdivision'.[37]
[37] Witness statement of Peter Graham Wright dated 21 January 2019 (Exhibit 6) at [46].
The Commission has adopted Development Control Policies for the purposes of subdivision control and assessment. Although not expressly referred to in the PD Act, the planning principles set out in Development Control Policies adopted by the Commission are 'relevant planning considerations' to which the Tribunal is required to have 'due regard' under s 241(1) of the PD Act. More broadly, as the Tribunal held in relation to State planning policies and Development Control Policies in Western Australian Planning Commission and Hogan at [48]:[38]
… under Western Australian planning law, a State planning policy concerning subdivision will generally guide the Commission (and the Tribunal on review) in the exercise of its discretion as to whether to grant subdivision approval and, if so, subject to what conditions: Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 [24] (Barker J). Similarly, although not referred to in the PD Act, a Development Control Policy adopted by the Commission for the purposes of subdivision control and assessment will also generally guide the exercise of the Commission's (and, on review, the Tribunal's) discretion as to whether to grant subdivision approval to a proposed subdivision and, if so, subject to what conditions. …
[38] Footnote omitted.
The Development Control Policies adopted by the Commission which are relevant in this review are Development Control Policy 1.1 Subdivision of Land General Principles (DCP 1.1) which was published in June 2004, Development Control Policy 2.2 Residential Subdivision (DCP 2.2) which was published in October 2017 and Development Control Policy 2.3 Public Open Space in Residential Areas (DCP 2.3) which was published in May 2002. In addition, Liveable Neighbourhoods a Western Australian Government sustainable cities initiative (Liveable Neighbourhoods), which was published by the Commission in October 2007 and updated in January 2009, is an operational policy of the Commission which contains provisions in relation to walkable catchments, Public Open Space and Regional Open Space.
Clause 3.9.1 of DCP 1.1 states as follows:[39]
[39] Parties' Agreed Bundle of Documents (Exhibit 3) tab 29 page 612.
The WAPC may impose conditions requiring developer contributions (including the ceding of land) for the provision of infrastructure and services which are necessary and relevant to the subdivision.
These contributions may be in the form of:
•ceding of land for … public open space, … ;
…
•monetary contributions to acquire land or undertake works by public authorities or others.
The scope and arrangements for developer contributions are set out in WAPC policies.
In the 'background notes', DCP 2.2 states as follows:[40]
…
This policy complements and is to be read in conjunction with the following relevant policies and planning instruments.
…
State Planning Policy 3.6 Development Contributions for Infrastructure
…
Liveable Neighbourhoods
…
[40] Parties' Agreed Bundle of Documents (Exhibit 3) tab 30 page 615.
Clause 4.1.3 of DCP 2.2 states, in part, as follows:[41]
All new residential lots will be:
…
•convenient to areas of passive and active open space in accordance with Liveable Neighbourhoods and Development Control Policy 2.3 Public Open Space, in terms of appropriate location and configuration, and having regard for the existing and proposed distribution of open space in the immediate locality[.]
…
[41] Parties' Agreed Bundle of Documents (Exhibit 3) tab 30 pages 616-617.
Clause 3.1 of DCP 2.3 sets out general requirements in relation to Public Open Space in residential areas including the following:[42]
3.1.1The Commission's normal requirement in residential areas is that, where practicable, 10 percent of the gross subdivisible area be given up free of cost by the subdivider and vested in the Crown under the provisions of Section 20A of the Town Planning and Development Act, 1928 (as amended) as a Reserve for Recreation. In determining the gross subdivisible area the Commission deducts any land which is surveyed for schools, major regional roads, public utility sites, municipal use sites, or, at its discretion, any other non-residential use site.
3.1.2The 10 per cent requirement is derived from the recommendations contained in the Stephenson-Hepburn Plan. That report states that for most areas a standard of 3.36 hectares per 1,000 population (excluding school playing fields) is recommended as sufficient for public open space.
On the basis of a uniform density of 30 persons per hectare, a standard contribution of 10 percent of the gross residential area for public open space has been applied since 1956. This requirement remains valid, as gross residential densities have remained much the same since that time, with smaller lot sizes being offset by declining household occupancies.
3.1.3In terms of the location and distribution of public open space, the Commission favours an overall balance between incidental open space, readily accessible to all residents, and recreational open space in larger units suitable for active leisure pursuits. In this regard it will seek the advice and comment of the relevant local government. It will also seek local government advice upon the suitability in physical terms of land shown upon plans of proposed subdivision for development as open space.
3.1.4The Commission may require that the public open space for the whole of a parcel of land be met entirely from the first stage of subdivision, or from any succeeding stage, if it considers this desirable.
…
[42] Parties' Agreed Bundle of Documents (Exhibit 3) tab 31 page 624 (emphasis added).
As the Tribunal observed in Empire Securities Pty Ltd and Western Australian Planning Commission at [22]:
… the "10 per cent requirement" [referred to in cl 3.1.2 of DCP 2.3] appears to be soundly based and has been consistently applied in this State for almost 50 years.
That observation was made by the Tribunal almost 14 years ago and before SPP 3.6 was made. The Tribunal's observation in Empire Securities Pty Ltd and Western Australian Planning Commission at [22] is now underscored by SPP 3.6. As indicated earlier, under cl 5.3 of SPP 3.6 and Appendix 1 to SPP 3.6, the provision of '[p]ublic open space equivalent to 10 per cent of the gross subdivisible area, or alternatively, a cash-in-lieu contribution, in accordance with [Commission] policies and the [PD Act]' is now referred to in State planning policy as a 'standard development contribution requirement'.
Clause 3.3 of DCP 2.3 concerns whether land which is reserved for Parks and Recreation under the MRS or another region scheme may be included in a subdivider's 10 per cent Public Open Space contribution. Although the site does not include any land reserved for Parks and Recreation under the MRS, as discussed below, cl 3.3 of DCP 2.3 (and provisions of Liveable Neighbourhoods referred to later in these reasons) is significant in assessing Mr Bashall's evidence that the parts of the Carine Regional Open Space which are within 400-metre and 800-metre walkable catchments of the site should be included in the calculation of 'Public Open Space' when determining whether there is already sufficient Public Open Space in the locality of the site without the 1,390m2 area referred to in the disputed conditions.
Significantly, cl 3.3 of DCP 2.3 (and provisions of Liveable Neighbourhoods referred to later in these reasons) distinguishes between Regional Open Space, on the one hand, and Public Open Space, on the other hand, thereby indicating that Regional Open Space within the locality of the land the subject of a subdivision application is generally not to be included in the calculation of 'Public Open Space' in the locality (except where the Commission accepts Regional Open Space as part of the subdivider's Public Open Space contribution in a particular case). Clause 3.3 of DCP 2.3 states as follows:[43]
[43] Parties' Agreed Bundle of Documents (Exhibit 3) tab 31 pages 625-626 (emphasis added).
3.3.1Where a proposed subdivision includes land which is designated as a Parks and Recreation reserve under the Metropolitan Region Scheme, or a regional planning scheme, and cannot be dealt with as either a foreshore reserve under the provisions of Section 3.2, or as part of a subdivider's 10 percent public open space contribution under the provisions of sub-clause 3.3.2, the Commission will require that the land so reserved shall be shown on the survey documents as a separate lot pending acquisition by the Commission pursuant to that scheme.
3.3.2The Commission may accept that land reserved for Parks and Recreation under the Metropolitan Region Scheme or a regional planning scheme (excluding land dealt with as a foreshore reserve) may be included in the subdivider's 10 percent public open space contribution where it can be demonstrated to the satisfaction of the Commission and the local government that the subject land can be used for an appropriate local (as well as a regional) purpose. In such instances the Commission shall require the subdivider's public open space contribution to be either:
•vested in the Crown free of cost as a Section 20A reserve for the purpose of recreation, or
•transferred to the Commission in fee simple.
Prior to accepting a subdivider's public open space contribution in accordance with this sub-clause, the Commission may require a management plan which demonstrates that the subject land can be used for an appropriate local (as well as a regional) purpose and may require the local government's agreement to accept responsibility for management of the land.
Clause 4.3 of DCP 2.3 concerns payment of money in lieu of giving up land for Public Open Space. Clause 4.3 of DCP 2.3 states, in part, as follows:[44]
[44] Parties' Agreed Bundle of Documents (Exhibit 3) tab 31 page 628.
4.3.1Sections 20C (1) to 20C (7) of the [TPD] Act [now s 153 and s 154 of the PD Act] contain provisions under which a cash payment can be made by the subdivider in lieu of providing land for open space. The Commission recognises that in certain circumstance the use of these provisions should be encouraged. These circumstances include subdivisions where:
•the land area is such that a 10 percent contribution would be too small to be of practical use;
•there may be sufficient public open space already in the locality;
•public open space is planned in another location by way of a town planning scheme or local structure plan.
…
4.3.5All money received by the local government in this way is required by the Act to be paid into a separate account of that authority, which under the Local Government Financial Management Regulations, 1996 should clearly set out the purposes for which the money is held, the landholding from which it was obtained and the date on which it was paid to the local government. The money should be applied:
a)for the purchase of land by the local government for parks, recreation grounds or open spaces generally, in the locality in which the land included in the plan of subdivision is situated;
b)in repaying any loans raised by the local government for the purchase of any such land; or
c)with the approval of the Minister for Planning, for the improvement or development as parks, recreation grounds or open spaces generally or any land in the said locality vested in or administered by the local government for any of those purposes.
…
Liveable Neighbourhoods states that it is:[45]
… an operational policy for the design and assessment of structure plans (regional, district and local) and subdivision for new urban (predominantly residential) areas in the metropolitan area and country centres, on greenfield and large urban infill sites.
[45] Parties' Agreed Bundle of Documents (Exhibit 3) tab 33 page 771.
This proceeding does not concern a 'structure plan' and the proposed subdivision in this case is not on a 'greenfield' or 'large urban infill' site. Nevertheless, two aspects of Liveable Neighbourhoods are relevant to our assessment in this proceeding of the delineation of the 'locality' of the site, for the purpose of determining the amount of Public Open Space within that locality, and whether there is sufficient Public Open Space within the locality of the site without the imposition of the disputed conditions.
The first aspect of Liveable Neighbourhoods that is relevant in this review is the reference to 'Walkable catchment (ped shed) efficiency' in relation to which Liveable Neighbourhoods states under Element 2 Movement network as follows:[46]
…
Typically, most people will consider walking up to 400 m (five minutes) to daily activities, or 800 m (10 minutes) to a train station or town centre. A well-connected street network should achieve at least 60 per cent efficiency (meaning 60 per cent of the area in a 400 m radius of the destination can be reached by a 400 m walk along streets).
[46] Parties' Agreed Bundle of Documents (Exhibit 3) tab 33 page 818.
In September 2015, the Commission published a draft updated version of Liveable Neighbourhoods. The draft updated version proposes to revise the provision set out in the preceding paragraph under the heading 'Walkable Neighbourhoods' in Element 2 Movement network as follows:[47]
Walkable neighbourhoods are typically characterised by having a range of community services within 5-10 minutes (400-800 metres) walking distance of residential areas which residents may access on foot. Liveable Neighbourhoods encourages a reduction in travel by private motor vehicles through the creation of mixed-use neighbourhoods with interconnected street patterns, where community services and facilities are within walking distance of most residents.
[47] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 662.
The second aspect of Liveable Neighbourhoods that is relevant to this review is that (like cl 3.3 of DCP 2.3) it clearly distinguishes between Regional Open Space, on the one hand, and Public Open Space, on the other hand, and indicates that Regional Open Space is generally not to be included in the calculation of Public Open Space (except where the Commission accepts Regional Open Space as part of a subdivider's Public Open Space contribution in a particular case).
The provisions in relation to Public Open Space are contained in Element 4 Public parkland in the current version of Liveable Neighbourhoods and in Element 5 Public Open Space in the draft update of Liveable Neighbourhoods. Provision R4 of Element 4 of the current version of Liveable Neighbourhoods states that '[a] minimum contribution of 10 per cent of the gross subdivisible area must be given up free of cost by the subdivider for public open space'.[48] Under 'Public open space provision' in Element 5, the draft updated document similarly states that '[i]n residential areas 10 per cent of the gross subdivisible area must be provided free of cost by the subdivider and vested in the Crown … for POS …'.[49] Table 11 in Element 4 of the current version of Liveable Neighbourhoods and Table 16 in Element 5 of the draft updated version both provide an example of the calculation of gross subdivisible area and Public Open Space provision of 10 per cent of that gross subdivisible area, in which Regional Open Space is excluded from the gross subdivisible area.
[48] Parties' Agreed Bundle of Documents (Exhibit 3) tab 33 page 866.
[49] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 728.
Furthermore, the Introduction to Element 4 of the current version of Liveable Neighbourhoods expressly distinguishes between Regional Open Space and Public Open Space as different 'types' of 'public parkland' as follows:[50]
There are three types of public parkland.
•Regional open space as defined under a regional or sub-regional structure plan and/or included in a region scheme and set aside for acquisition. Regional open space should accommodate active and passive recreation such as major playing fields as well as conservation and environmental features.
•Foreshore reserves which are contributed free of cost by the owner through the subdivision process (eg land abutting a river, creek, lake or coast).
•Public open space which is contributed free of cost by the owner through the subdivision process (eg district park, neighbourhood park, local park, special purpose parks, playing fields, community purpose sites.).
[50] Parties' Agreed Bundle of Documents (Exhibit 3) tab 33 page 862.
The term 'public open space' is defined in the Glossary of the current version of Liveable Neighbourhoods as follows:[51]
Public open space means land used or intended for use for recreational purposes by the public and includes parks, public gardens, foreshore reserves, playgrounds, and sports fields but does not include regional open space and foreshore reserves.
[51] Parties' Agreed Bundle of Documents (Exhibit 3) tab 33 page 943 (emphasis added).
The draft updated version of Liveable Neighbourhoods does not contain the same provision as set out at [77] above distinguishing between different 'types' of 'public parkland'. Furthermore, the definition of the term 'public open space' in the Glossary is different in the draft updated version to the current version in that it does not state 'but does not include regional open space …' and contains, in its second sentence, the words: 'In certain circumstances it can include regional open space, but does not include foreshore reserves'. The full definition of 'public open space' in the Glossary of the draft updated version of Liveable Neighbourhoods states as follows:[52]
Public open space (POS): land used or intended for use for recreational purposes by the public and includes parks, public gardens, playgrounds, and sports fields. In certain circumstances it can include regional open space, but does not include foreshore reserves.
[52] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 764.
Under the heading 'Regional open space' in Element 5, the draft updated version of Liveable Neighbourhoods states as follows:[53]
Land for regional open space purposes is usually reserved under a region scheme and is obtained through negotiated purchase. Regional open space contributes towards overall public open space provision and is crucial for the overall network of POS providing sport, nature and recreation functions for residents and the wider community. In some cases, where regional open space is identified in a sub-regional structure plan but has not been acquired by the State, it can instead form part of the POS contribution in the same way as if it was a site identified in a local government POS strategy.
[53] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 736.
Furthermore, the draft updated version of Liveable Neighbourhoods states under the heading 'Public open space function' in Element 5 as follows:[54]
All publicly accessible land can contribute to function, even if it is not a POS site. For example, a regional sporting facility on regional open space (ROS) providing sport opportunities, a BushForever site providing a nature function and a walking trail on an easement providing recreation opportunities.
[54] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 719.
Notwithstanding the differences between the current version of Liveable Neighbourhoods and the draft updated version referred to above, it is clear that both provisions:
•'minimum contribution of 10 per cent of the gross subdivisible area must be given up free of cost by the subdivider for public open space' (provision R4 of Element 4 of the current version of Liveable Neighbourhoods);[55] and
•'10 per cent of the gross subdivisible area must be provided free of cost by the subdivider' ('Public open space provision' in Element 5 of draft updated version),[56]
exclude Regional Open Space, unless the Commission accepts Regional Open Space:
•'as part of the subdivider's 10 per cent public open space contribution' (provision R8 of Element 4 of the current version of Liveable Neighbourhoods);[57] or
•'where regional open space is identified in a subregional structure plan but has not been acquired by the State, it can instead form part of the POS contribution in the same way as if it was a site identified in a local government POS strategy' (as stated under Element 5 of the draft updated version).[58]
[55] Parties' Agreed Bundle of Documents (Exhibit 3) tab 33 page 866.
[56] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 728.
[57] Parties' Agreed Bundle of Documents (Exhibit 3) tab 33 page 867.
[58] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 736.
Furthermore, although the draft updated version of Liveable Neighbourhoods recognises that '[r]egional open space contributes towards overall public open space provision and is crucial for the overall network of POS[59] and that '[a]ll publicly accessible land can contribute to function, even if it is not a POS site',[60] it does not indicate that Regional Open Space within the locality of land which is proposed to be subdivided may be included within the calculation of 'Public Open Space' within the locality of the site for the purpose of determining whether there is sufficient Public Open Space in the locality without the subdivider having to contribute land or cash in lieu for Public Open Space.
[59] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 736.
[60] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 719.
The second sentence of the definition of 'public open space' in the draft updated version of Liveable Neighbourhoods ('[i]n certain circumstances it can include regional open space, but does not include foreshore reserves') appears to refer to a situation where the Commission accepts the contribution of Regional Open Space identified in a subregional structure plan which, as indicated earlier, 'can instead form part of the POS contribution in the same way as if it was a site identified in a local government POS strategy'.[61] Of course, as discussed in relation to issue 4 below (as to whether it is reasonable and appropriate to impose the disputed conditions in the exercise of planning discretion), publicly accessible Regional Open Space within the locality of land the subject of a subdivision application 'can contribute to function, even if it not a POS site' (as stated under 'Public open space function' in Element 5 of the draft updated version of Liveable Neighbourhoods).[62] This was recognised and discussed in Empire Securities Pty Ltd and Western Australian Planning Commission at [27]-[33]. However, as indicated in Empire Securities Pty Ltd and Western Australian Planning Commission at [27] and [31], and as discussed in relation to issue 4 below, evidence is required to establish that the relevant Regional Open Space (taken together with Public Open Space proposed on the land the subject of the subdivision application and in the locality) is sufficient 'to satisfy the planning principles reflected in DC[P] 2.3'.[63]
[61] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 736.
[62] Parties' Agreed Bundle of Documents (Exhibit 3) tab 32 page 719.
[63] Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98 at [27].
We have, therefore, addressed the evidence and submissions put forward for the applicants in terms of sufficiency of Public Open Space in the locality of the site in the context of the second Newbury test (as well as considering the proximity and utility of the Carine Regional Open Space in relation to the issue of whether the disputed conditions are reasonable and appropriate in the circumstances, which is issue 4 discussed below). We leave open for determination on another occasion, when it can be fully argued and considered, whether evidence and submissions to the effect that there is already sufficient Public Open Space in the locality of a subdivision properly goes to the validity of a disputed Public Open Space contribution condition in terms of nexus or, rather, (only) to a merit assessment as to whether it is reasonable and appropriate to impose a condition in the circumstances of the case.
Are the disputed conditions so unreasonable that no reasonable planning authority could impose them and therefore cannot lawfully be imposed by the Tribunal?
As indicated earlier, although it was not referred to at the hearing, in their statement of issues, facts and contentions, the applicants rely on the decision of the former Town Planning Appeal Tribunal in Love and Western Australian Planning Commission. On the basis of that decision, the applicants contend in the statement of issues, facts and contentions that 'it is unreasonable to impose a condition requiring a reservation be set aside free of cost when a claim for compensation had been made'.[140]
[140] Applicant's [sic] statement of issues, facts and contentions (Exhibit 1) at [55].
Love and Western Australian Planning Commission involved an appeal against the following condition of subdivision approval (at [2]):
The land shown on the attached plan (Job No. 3933) for public open space being shown on the Diagram or Plan of Survey as a 'Reserve For Recreation' and vested in the Crown under section 20A of the Town Planning & Development Act (as amended), such land to be ceded free of cost and without any payment of compensation by the Crown.
At [3], the Town Planning Appeal Tribunal said the following:
The essence of the Appeal is that the condition is unreasonable on the grounds that may be summarised as:
•the land to be ceded is already reserved as Parks and Recreation under the Metropolitan Region Scheme ('MRS') in respect of which there is an entitlement to compensation that should not be taken away;
•the course of dealings with the Appellant by the relevant authorities led to an expectation that the reserved land would be purchased, an opportunity that will be lost by the ceding;
•the ceding of land is unnecessary as a matter of fact;
•the ceding is unnecessary because the controls required are already in place under an amendment to the City town planning scheme that rezoned the land to Special Rural.
Ultimately, although the Town Planning Appeal Tribunal found that the disputed condition 'is reasonably related to the subdivision, is not unreasonable and accords with general planning principles' (at [106]), it also determined at [106] that the disputed condition:
… is not a condition that is reasonable to impose as a matter of orderly and proper planning[,] because the zoning provisions contained in the Scheme, supplemented by an easement in gross, are sufficient to carry out the purposes to be served by the ceding free of cost for the benefit of the public.
Further to the first and second bullet points set out at [3], the Town Planning Appeal Tribunal referred to the appellant's key contention at [58] as follows:
The Appellant relied principally upon the proposition that the condition was 'unreasonable' in the [Wednesbury] sense because there was a 'legitimate expectation' of compensation and the condition could be regarded (in part) as the WAPC attempting to avoid its duty to pay compensation.
The reasoning of the Town Planning Appeal Tribunal in relation to this contention, which is relied on by the applicants in their statement of issues, facts and contentions in this case, was as follows at [66]-[67]:[141]
It is the opinion of the Tribunal that when land is reserved and no claim for compensation has been made, the owner of the land is not thereby losing a right of compensation because the financial loss or injurious affection has not crystallized by means of an actual loss. When an application for subdivision is made at this stage, the owner cannot claim that the ceding of the land is unjust, anymore than an owner of zoned land can so claim. However, if a claim for compensation has been made, then it would be unjust for the Commission to require the land be ceded free of cost denying the right to compensation which is inchoate. In the later case, the condition would be 'unreasonable' in the Wednesbury sense.
In this case, as mentioned, a claim for compensation was made dated 6 January 1997. No claim for compensation arises in respect of a reservation by s.36(3) [of the Metropolitan Region Town Planning Scheme Act 1959 (WA)] until the land is first sold or an application is made for development permission that is refused. As neither event occurred in this case, the claim for compensation was of no effect and compensation remained incipient and undeveloped. Accordingly, it cannot be said that the condition was, on this basis, unjust or unreasonable.
[141] Emphasis added.
It is apparent from [67] of the Town Planning Appeal Tribunal's reasons that its statements in the penultimate and final sentences of [66] were obiter. Love and Western Australian Planning Commission is also generally distinguishable, because it involved land which was the subject of an MRS reserve, rather than land reserved for 'Public Open Space and Local Authority Purposes' under a local planning scheme.
While correctly observing that the penultimate and final sentences of [66] in Love and Western Australian Planning Commission are clearly obiter and distinguishable, Mr Repper also submits that those statements by the former Town Planning Appeal Tribunal are 'wrong':[142]
It's wrong, because if a claim for compensation has been made, the right to compensation would not be denied, because the compensation is payable to the owner of the land as at the date of the triggering event.
[142] ts 139, 7 February 2019.
As the Tribunal held in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 at [31]:
For reasons of comity and consistency, a member of SAT should also generally follow a decision of another member of the Tribunal (or a member of a former Tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499. …
In our view, for the reasons given in relation to issue 1 above, it would be an error to apply the statements in the penultimate and final sentences of [66] in Love and Western Australian Planning Commission to a development contribution condition requiring a subdivider to give up land for Public Open Space when the land is reserved for Public Open Space under the applicable local planning scheme and an application for compensation for injurious affection has been made under Pt 11 of the PD Act. As we explained in relation to issue 1, subdivision assessment and the imposition of conditions of subdivision approval involves a separate, independent and distinct statutory process to a claim for compensation for injurious affection and payment by the responsible authority of the value of the land where it elects to acquire the land instead of paying compensation for injurious affection.
The disputed conditions are not so unreasonable that no reasonable planning authority could impose them or unreasonable in the Wednesbury sense.
Are the disputed conditions reasonable and appropriate?
The correct approach to the application of planning policy in planning assessment and review was stated by Barker J in Clive Elliot Jennings & Co Pty Ltd v Western Australia Planning Commission at [24] in a passage we set out above at [99]. For convenience, we repeat principles stated by his Honour here:
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a "policy" and which is stated to be relevant to subdivision applications. In such cases, the document is not a "policy" given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a "policy", and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a "policy" is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by [sic] why the "policy" should not be applied; why the planning principles that find expression in the "policy" are not relevant to the particular application. Good public administration demands no less an approach.
These principles were stated by Barker J in the context of the TPD Act which was replaced by the PD Act on 9 April 2006. As indicated earlier, State planning policies, such as SPP 3.6, have statutory force and effect under Pt 3 of the PD Act and, under s 241 of the PD Act, the Tribunal 'is to have due regard to relevant planning considerations including … any State planning policy which may affect the subject matter of the application' in determining a planning review application in accordance with Pt 14 of the PD Act. Consequently, as we said earlier, under s 241(1) of the PD Act, the Tribunal is bound to have 'due regard' to both a 'State planning policy which may affect the subject matter of the application', such as, in this case, SPP 3.6, and to other 'relevant planning considerations', which include planning principles set out in relevant provisions of Development Control Policies and operational policies formulated and adopted by the Commission, such as, in this case, DCP 2.2, DCP 2.3 and Liveable Neighbourhoods. Notwithstanding these changes to the planning legislation, the principles stated by Barker J in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission remain, with respect, sound and applicable law.
Empire Securities Pty Ltd and Western Australian Planning Commission involved an application for review of development contribution conditions requiring the subdivider to identify and vest in the Crown 10 per cent of the gross subdivisible area for Public Open Space, 'such land to be ceded free of cost and without any payment or compensation by the Crown'. In Empire Securities Pty Ltd and Western Australian Planning Commission, after setting out at [20] the passage from Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission at [24], the Tribunal then said the following at [21]-[22]:
21Mr Bydder [who was counsel for the Commission] submitted that, applying these principles to the present case, the relevant question is:
"Why should the policy of 10 per cent contribution for public open space not be applied?"
22I accept that this is the relevant starting point, as the "10 per cent requirement" appears to be soundly based and has been consistently applied in this State for almost 50 years. Indeed, Mr McKellar, who represented the applicants, did not question this approach, but put forward essentially five arguments as to why the provision of 10 per cent of the area of the site for public open space was not necessary or reasonable.
So too, in this case, having regard to the principles in relation to the application of planning policy, the question that the Tribunal must determine in the exercise of planning discretion is whether there is any cogent reason to depart from the application of the planning principle stated in the planning policy framework requiring an area equivalent to 10 per cent of gross subdivisible area to be given up and vested in the Crown for Public Open Space, and ceded free of cost and without any payment of compensation by the Crown, in the circumstances of this case. The expression '10 per cent requirement' in Empire Securities Pty Ltd and Western Australian Planning Commission at [22] was taken from cl 3.1.2 of DCP 2.3, which remains an applicable policy. SPP 3.6 and Liveable Neighbourhoods, which both contain the same policy requirement that 10 per cent of the gross subdivisible area is to be given up by the subdivider for Public Open Space, vested in the Crown and ceded free of cost and without any payment of compensation by the Crown, have both come into effect since the publication of the decision in Empire Securities Pty Ltd and Western Australian Planning Commission. The formulation and adoption of SPP 3.6 and Liveable Neighbourhoods since that time only underscores that the key issue in the exercise of discretion in relation to the disputed conditions is whether there is any cogent reason to depart from the clear contemplation of the State planning framework in relation to development contributions for Public Open Space, that 10 per cent of the gross subdivisible area is to be given up and vested in the Crown for Public Open Space, and ceded free of cost and without any payment of compensation by the Crown, in the particular circumstances of this case.
In our view, there is no cogent reason, on the evidence before the Tribunal, to depart from the planning principle stated in the policy framework requiring 10 per cent of gross subdivisible area to be ceded for Public Open Space in the circumstances of this case.
As we found earlier, the subdivision gives rise to a need for Public Open Space, because the incoming population in the 23 residential lots requires adequate Public Open Space for recreational purposes. As we also found earlier, the amount of Public Open Space available in the locality (including the reserved land) is insufficient even for the existing population in the area, because it is less than the 10 per cent of gross subdivisible area in the locality of the site contemplated by the policy framework (9.53 per cent within 400 metres and 8.79 per cent within 800 metres). The development of the lots in the proposed subdivision will bring in additional residents to the area which will only exacerbate the insufficiency of Public Open Space in the locality of the site.
However, as also indicated earlier, 0.6015 hectare of the Carine Regional Open Space is located within 400 metres of the site and 33.8542 hectares of the Carine Regional Open Space is located within 800 metres of the site. In Empire Securities Pty Ltd and Western Australian Planning Commission, the Tribunal determined at [27] that 'the fact, proximity and likely use of the whole of the contiguous Foreshore Reserve by future occupants of the proposed subdivision is clearly a highly relevant consideration' in relation to whether, in the facts and circumstances of that case, 'a lesser provision than 10 per cent of the site area for public open space is appropriate'. The Tribunal also said at [27] that for 'the Foreshore Reserve [to be regarded as] adequate, when taken together with the public open space proposed on site, to satisfy the planning principles reflected in DC[P] 2.3', this must be demonstrated 'on the evidence'. At [31], the Tribunal determined that there was 'no specific evidence about how the Foreshore Reserve land could be used by residents of the proposed subdivision, nor … [as to] how such use could be reconciled with the character and environmental qualities of the adjoining land'.
Referring to [27] and [31] of Empire Securities Pty Ltd and Western Australian Planning Commission, in his closing submissions, Mr McGowan said that the 'lack of evidence' in that case is:[143]
… to be contrasted with Mr Bashall's evidence, not only with the analysis that he undertook, but with the photographic evidence that he produced, both as appendix 1 and as exhibit 8, 45 photographs, which provide in a complete and pictorial fashion how the various areas are understood, how they operate and how the uses may be appreciated.
[143] ts 144, 7 February 2019.
However, we are not satisfied on the evidence, including Mr Bashall's evidence and the photographic evidence he produced, that the areas of the Carine Regional Open Space which are located within 400 metres and 800 metres of the site, or the Carine Regional Open Space generally, would effectively fulfil a Public Open Space function for future residents of the site.
In his witness statement, Mr Bashall gave evidence that the Carine Regional Open Space:[144]
… amounts to nearly 90 hectares of well serviced recreational facilities providing a wide range of activities, both active and passive, formal and informal … [and] also provides a significant amount of land for public parklands including conservation areas, swamps, lakes and other vegetated areas that has been identified as a Bush Forever Site (Site 203, 88.79ha).
[144] Witness statement of Paul William Talbot Bashall (Exhibit 7) at [27].
Mr Bashall also gave the following evidence in relation to the Carine Regional Open Space:[145]
Anybody can use it. Yes. I think you can go and kick a football there and you can marvel at the conservation, the lakes, the swamps, the walkways, the it's all very well provided. It's a very good asset for the local residents as well as people from further away, presumably further than 800 metres.
[145] ts 77, 6 February 2019.
In contrast, Mr Wright does not consider that the Carine Regional Open Space is intended to, or would in fact, effectively fulfil a Public Open Space function. Mr Wright said that:[146]
Any local open space benefit for the residents of the area from the regional open space would be incidental to its provision, rather than the purpose for it.
[146] ts 48, 6 February 2019.
Furthermore, when asked whether he had 'a view as to any of the actual functions'[147] of the Carine Regional Open Space, Mr Wright gave the following evidence:[148]
Regional open space is for the region. The people within that area are part of the region and they, obviously, would go and use it. But its intention and purpose is served if it it could be city-wide. It could be metropolitan-wide. I notice in Mr Bashall's photographs he has got a photograph of a green regional of a space where it has got disabled horse-riding facilities.
I would very much doubt you would have many disabled people in within this area who are who are utilising that service. That's that would be a metropolitan-wide service if if people in the area would utilise it as part of the regional thing, but certainly not as part of just their own little area. Their own little area is the very subdivisional area where the subdivide has provided public open space.
…
There's quite a bit of
…
environmental functions. There are swamps, there's Careniup's feeding areas. Actually, there was I think back in yes, Department of Water and Environmental Regulations have got clearing regulations that it's a sensitive area (indistinct) and it's a draft site of strategic environmental significance. So it's essential environmental issue function there a regional environmental function, which, of course, the locals can probably walk through and enjoy the environment as well.
There's nothing stopping them from doing that. There's, as I say, the regional facility that Mr Bashall has identified, swamp and other environmental significance. So the actual I mean, you could probably go in there and kick a football, but the actual areas for doing that is the public open space provided by the subdividers.
[147] ts 75, 6 February 2019
[148] ts 76, 6 February 2019.
There are three photographs in evidence which depict the Carine Regional Open Space. Appendix 1 to Mr Bashall's witness statement contains an aerial photograph of the Carine Regional Open Space. Consistently with Mr Wright's evidence, the aerial photograph of the Carine Regional Open Space shows extensive areas of thick bush, swamps or lakes, and also some cleared areas with buildings around them which appear to be sports fields. Photograph 1 in a bundle of photographs produced by Mr Wright[149] shows a carpark and a sign stating 'Carine Regional Open Space Riding For The Disabled' and bearing the City's logo. Photograph 2 in the bundle of photographs[150] shows a carpark, a building which appears to have covered seating behind a white balustrade overlooking what appears to be a sportsground of some sort and a sign stating 'Carine Regional Open Space Monyash Reserve' and bearing the City's logo.
[149] Exhibit 8.
[150] Exhibit 8.
On the whole of the evidence, it appears that the Carine Regional Open Space serves important regional functions, in terms of environmental conservation and sport, including a regional facility for horse riding by people with disabilities. Although Mr Bashall and Mr Wright agree that one could go to the Carine Regional Open Space and 'kick a football',[151] it primarily, if not exclusively, serves regional, rather than local, functions. Furthermore, although one can kick a football at the Carine Regional Open Space, it would be much more convenient for the future residents of the subdivision to walk the short distance to Arbuckle Reserve, rather than walk 400 metres to the Carine Regional Open Space (and from there to a sports field or other open area), in order to kick a football.
[151] ts 76 (Mr Wright) and 77(Mr Bashall), 6 February 2019.
We are, therefore, not satisfied on the evidence that the proximity and likely use of the Carine Regional Open Space is a cogent reason to depart from the application of the '10 per cent requirement' under the planning framework in the circumstances of this case.
Finally, we accept the Commission's submission that it would be 'inequitable if the applicants were not required to contribute their proportionate 10 per cent contribution'.[152] As Mr Repper said in opening the Commission's case:[153]
Now, we say of course the locality by this time has very close to 10 per cent public open space. That's because the applicant is the last subdivider. All the other subdividers have provided their proportionate contribution.
[152] ts 133, 7 February 2019.
[153] ts 9, 6 February 2019.
The evidence indicates that historical subdivisions in the locality, in particular the subdivision which created Lot 400 and the 'Avalon Rise' subdivision to the immediate south-west of the site, contributed 10 per cent gross subdivisible area for Public Open Space, either in land or by cash in lieu.
As indicated earlier, the objectives of SPP 3.6 stated in cl 4 of the policy include:[154]
to ensure that development contributions … are charged equitably among those benefitting from the infrastructure and facilities to be provided[.]
[154] Parties' Agreed Bundle of Documents (Exhibit 3) tab 27 page 582.
Deleting the disputed conditions would be inequitable to subdividers in the locality who have contributed land or cash in lieu for Public Open Space in accordance with the long-standing State planning framework for development contributions and therefore inconsistent with an objective of SPP 3.6.
The disputed conditions are consistent with the applicable and long-standing State planning framework in relation to development contributions for Public Open Space. There is no cogent reason, on the evidence, to depart from the planning principle stated in the policy framework that a subdivider should give up 10 per cent gross subdivisible area for Public Open Space. We consider that the disputed conditions are reasonable and appropriate in the circumstances of this case.
Conclusion
The disputed conditions can lawfully be imposed, because they are for a planning purpose and not for any ulterior purpose, fairly and reasonably relate to the subdivision and are not so unreasonable that no reasonable planning authority could impose them. The conditions are also reasonable and appropriate in the circumstances of this case. The correct and preferable decision is, therefore, to affirm the Commission's decision to impose the disputed conditions.
For these reasons we make the following orders:
1.The decision made by the Western Australian Planning Commission on 16 November 2018 to impose conditions 1 and 19 on approval of Application No. 1543634 is affirmed.
2.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA), the applicants otherwise have leave to withdraw this proceeding and the proceeding is withdrawn.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry
3 APRIL 2019
Annexure
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