BILECKI and WESTERN AUSTRALIAN PLANNING COMMISSION
[2019] WASAT 26
•9 MAY 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: BILECKI and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 26
MEMBER: MS L EDDY, SENIOR MEMBER
HEARD: 22 JANUARY 2019
DELIVERED : 9 MAY 2019
FILE NO/S: DR 106 of 2018
BETWEEN: EDWARD MICHAEL BILECKI
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Review of condition requiring provision of public open space - Land to be subdivided within larger structure plan area - Relevant locality for calculation of whether sufficient public open space already exists - Whether condition valid - Whether condition sufficiently certain - Whether any reason to depart from policy in this case
Legislation:
Greater Bunbury Regional Scheme
Planning and Development Act 2005 (WA), s 138(2), s 138(3), s 143, s 241(1), s 251(2), Pt 14
Shire of Dardanup Local Planning Scheme No 3
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application allowed in part
Summary of Tribunal's decision:
The applicant sought review of a number of conditions imposed by the respondent in giving approval to the subdivision of land in Burekup into 31 lots. Only one condition remained in dispute by the time the matter came for hearing. The condition in dispute was a requirement that the applicant show on the diagram or plan of survey an area of land of at least 10% in area as a reserve for public open space and vested in the Crown, such land to be ceded free of cost without payment of any compensation.
The applicant argued that the condition did not fairly and reasonably relate to the proposed subdivision and should not be imposed because there already existed 10% public open space in the locality of the site. The Tribunal determined that, because there was an endorsed structure plan that contemplated a greenfield subdivision of a large area of land, part of which included the site, in circumstances where the strategic planning contemplated by the structure plan remained the local authority's current strategy, the relevant locality to consider, in determining if there already existed sufficient public open space, was the structure plan area. The structure plan contemplated the provision of 10% of public open space within the area to be subdivided and equal contribution to provision of that public open space by all of the owners of the land within the structure plan area. Currently there is no public open space within that area. The Tribunal determined that the condition in question had a proper planning purpose, did fairly and reasonably relate to the proposed subdivision and was not unreasonable. The Tribunal found also that the condition was sufficiently certain. The Tribunal was not satisfied that there was any reason to depart from the policy position arising from the planning framework in this case.
Category: B
Representation:
Counsel:
| Applicant | : | Mr I McKellar (as agent) |
| Respondent | : | Ms B Loftus and Mr J Misso |
Solicitors:
| Applicant | : | Civil Technology |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Reid v Western Australian Planning Commission [2016] WASCA 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 25 November 2016, Civil Technology, on behalf of Mr Edward Michael Bilecki (applicant) and Burekup Developments Pty Ltd, applied for subdivision of Lot 75 Clark Street, Burekup (site) into 32 lots (subdivision application). The applicant is the registered proprietor of the site and entered into a contract for sale of a portion of the land with Burekup Developments Pty Ltd in April 2016.
On 20 April 2018, the Western Australian Planning Commission (respondent) granted approval of the subdivision application, approving 31 residential lots with a remaining balance lot of 11,459m² subject to 21 conditions (subdivision approval).
On 3 May 2018, the applicant applied to the Tribunal for review of 15 of the conditions of approval pursuant to s 251(2) of the Planning and Development Act 2005 (WA) (PD Act). On 3 August 2018, following an invitation to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent amended the subdivision approval by deleting or modifying a number of the disputed conditions. Following that reconsideration, two conditions, condition 14 and condition 18, remained in dispute. By the time the matter came to hearing, only condition 14 of the subdivision approval remained in dispute. Condition 14 of the subdivision approval states:
An area of land at least 10% in area, in a position to be agreed with the Western Australian Planning Commission, being shown on the diagram or plan of survey (deposited plan) as a reserve for public open space 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)
An advice note to the subdivision approval states:
With regard to condition 14, provisions of section 153 of the Planning and Development Act 2005 provide that arrangements can be made, subject to further approval of the Western Australian Planning Commission, for a cash-in-lieu contribution by the landowner/applicant to the local government.
The applicant contends that condition 14 of the subdivision approval should be deleted on the basis that further public open space (POS) is not necessary because there is already sufficient POS in the locality.
Agreed facts
The following facts are agreed by the parties and are taken from the respondent's Statement of Issues Facts and Contentions (Exhibit 1).
The site is located in the township of Burekup, approximately 20 kilometres from the Bunbury Central Business District, within the Shire of Dardanup. The site is approximately 4 hectares and is rectangular in shape. The zoning of the site is different for the portion that is to become the balance lot (Lot 32 on the approved plan of subdivision) from the remainder of the site. Proposed Lot 32 is zoned 'Urban Deferred' under the Greater Bunbury Region Scheme (GBRS) and 'General Farming' under the Shire of Dardanup Local Planning Scheme No 3 (LPS 3 or Scheme). The remainder of the site is zoned 'Urban' under the GBRS and 'Residential', with a residential density coding of 'R15' under LPS 3.
Within 800 metres of the site there are two areas which provide for unrestricted POS. Firstly, Gardiner Street Reserve which is located approximately 140 metres from the site and measures 1.3096 hectares. Gardiner Street Reserve is reserved for 'Recreation' by LPS 3 and was ceded to the Crown to satisfy a POS contribution requirement imposed on an unrelated subdivision application approval (WAPC 112753). It contains a large open area (non-irrigated) that contains a skate park and gazebo.
Secondly, the Town Hall POS, which is on Lot 4 Russell Road, Burekup, located approximately 240 metres from the site. The Town Hall POS is reserved for recreation by LPS 3 and is owned by the local government. It has three tennis courts, a basketball/netball court, a playground and the Burekup Hall and Country Club on the land. The parties are in dispute as to whether only a portion of the land, or all of the land in Lot 4 Russell Road should be included in calculations of existing POS.
There are two other areas of land that the parties agree are relevant to the calculation of POS within 800 metres of the site. Firstly, Lot 8001 Sykes Avenue, Burekup (Sykes Avenue POS), which is located approximately 100 metres from the site. The Sykes Avenue POS is 0.121 hectares in area and contains a landscaped and engineered basin to accommodate stormwater flows, with grassed and vegetated areas. The Sykes Avenue POS was created as a condition of an unrelated subdivision (WAPC 132899) and was ceded to the Crown free of cost.
Secondly, Lot 6203 Shier Rise Burekup (Shier Rise POS), which is located approximately 300 metres from the site. The Shier Rise POS is 3.2001 hectares and is primarily a foreshore reserve of a creek line. It is reserved for 'Recreation' by the Scheme. The parties disagree as to what portion of the Shier Rise POS is useable for recreation purposes.
The parties disagree as to what is the correct calculation of all of the existing POS in the vicinity of the site.
Planning framework
Section 143 of the PD Act provides that the respondent, after considering any objections or recommendations in relation to a proposed subdivision forwarded to it, as well as any advice of a relevant environmental condition forwarded to it, may either: approve the plan of subdivision; refuse to approve the plan of subdivision or approve the plan of subdivision and require the applicant for approval to comply with such conditions as the respondent thinks fit. In giving approval to subdivide land, the respondent is required to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme unless one of the exceptions in s 138(3) of the PD Act apply: s138(2) of the PD Act.
Where, as is the case here, the respondent has decided to approve a plan of subdivision and require the applicant to comply with conditions of approval, the applicant may apply to the Tribunal for a review of any of those conditions: s 251(2) of the PD Act. Section 241(1) of the PD Act provides that in determining an application for review in accordance with Pt 14 of the PD Act (which this application is), the 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[.]
Relevant State policies for this matter include State Planning Policy 1: State Planning Framework (SPP 1) and State Planning Policy 3.6: Development Contributions for Infrastructure (SPP 3.6). Other relevant planning considerations are contained in the following documents:
•the respondent's Development Control Policy 1.1: Subdivision of Land General Principles (DC 1.1);
•the respondent's Development Control Policy 2.3: Public Open Space in Residential Areas (DC 2.3);
•the respondent's operational policy Liveable Neighbourhoods; and
•the Shire of Dardanup's Burekup Townsite Expansion Strategy 2009 (Expansion Strategy)
The applicant asserts that Chapter six of the Stephenson-Hepburn Report, a report created to plan and coordinate the growth of the Perth Metropolitan area in 1955, is a relevant document.
Respondent's argument
The respondent submits that condition 14 is a valid and proper condition, which is imposed for a proper planning purpose, reasonably and fairly relates to the proposed subdivision and is not manifestly unreasonable: citing Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury), which in turn was cited with approval in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30, at 55.
The need for POS is identified repeatedly in the planning framework and the respondent has consistently imposed similar conditions on residential subdivision since 1956 in accordance with that planning framework. The creation of 31 residential lots will bring increased residents to the area, and it has long been accepted that such residents need POS to provide means of recreation in the public realm. The proposed subdivision will create additional demand for POS in the area.
The respondent submits that there is not currently 10% of POS in the area based on its calculation of existing POS within 800 metres of the site. However, it is also submitted in the alternative that, even if there is 10% of POS in the area, the addition of extra people residing in the area may require improvements on existing POS to meet the extra demand placed on the POS.
The respondent also submits that the site is part of a larger area identified in the Expansion Strategy (which is, or at least includes, an endorsed structure plan) for future expansion of the townsite by way of residential subdivision similar to the current proposed subdivision. There is additional POS identified within this larger area that occupies 10% of the whole area identified in the Expansion Strategy. The contribution sought by the respondent in condition 14 is in reality a cash-in-lieu contribution that would go towards this new POS when it is ultimately created.
It is submitted that there is no sound reason to depart from policy in this matter.
The respondent submits that if there is any lack of certainty in condition 14 because it requires a contribution in terms of percentage and does not necessarily identify what amount of land that percentage relates to, it would suggest that the condition could be amended to identify an area of POS of 2900m², which reflects 10% of the part of the site which is to become residential lots, that is, proposed Lots 1 to 31.
Applicant's argument
The applicant submits that the overarching policy objective in the planning framework is to ensure that 10% of any locality is available as POS. If there is, in the relevant locality, already 10% of POS then the policy objective is already met and there is no need to impose a condition requiring a contribution to POS. According to the calculations of the applicant's witness, there is already 10% POS in the Burekup townsite, which is the relevant locality to refer to in this matter.
In the alternative, if there is not currently 10% POS, the applicant should only have to provide a contribution to POS to make up any shortfall.
The applicant submits that the calculation of POS should not have regard to the locality as identified on the Expansion Strategy because all of the land in the area identified for expansion in the structure plan in the Expansion Strategy is still zoned 'Urban Deferred' under the GBRS, except for the part of the site that is to become proposed Lots 1 to 31, which is zoned 'Residential'. It is submitted that this means that it is only the site that is able to be subdivided presently and the rest of the expansion area currently has no such potential because of its zoning.
Finally, the applicant submits that condition 14 is void for uncertainty as it is not clear from what area of the site the 10% calculation contemplated by condition 14 is to occur.
Determination
The test for the validity of conditions of subdivision approval enunciated in Newbury is well accepted as the correct test: Reid v Western Australian Planning Commission [2016] WASCA 181, at [17] to [35]. For convenience I will refer to it as the Newbury test.
The fact that a condition requiring the provision of land for POS where a proposed subdivision is creating residential lots is for a proper planning purpose is also well accepted: Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142; Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 (Empire); Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15 (Bestry). The content of the planning framework that supports this conclusion is thoroughly explained in the very recent decision of Bestry, at [50] to [84], and this framework remains current. Indeed, the applicant did not seek to argue that condition 14 was not imposed for a proper planning purpose in this case.
The applicant's argument focused on the second limb of the Newbury test; that condition 14 does not reasonably and fairly relate to the proposed subdivision. The applicant's argument relied on the evidence of town planning consultant Mr Paul William Talbot Bashall, to the effect that there is currently 10% of POS in the locality that includes the site. According to Mr Bashall, the relevant locality is the existing townsite of Burekup.
Mr Scott Dean Penfold, a town planner employed within the Department of Planning, Lands and Heritage, carried out a calculation of the existing POS within 800 metres of the site. He did this in response to Mr Bashall's calculations, which Mr Penfold considered to be incorrect. However, Mr Penfold said that he would not normally carry out such a calculation when assessing whether a condition requiring POS should be imposed.
The Tribunal does not accept that the locality used by Mr Bashall and Mr Penfold in their calculations of existing POS is the correct locality to use for the purpose of determining whether condition 14 reasonably and fairly relates to the proposed subdivision or for the question, which arises only if condition 14 is determined to be a lawful condition, whether the policy position of contribution of 10% of subdividable land as POS, should be departed from.
In Bestry, the Tribunal determined that the locality to be used for the calculation of existing POS in that matter was not the area identified on a map that the local government in that case asserted was a structure plan. The reason for that determination was because the map in question was not established, on the evidence, to be an endorsed structure plan: Bestry at [130]. In this case, there is, within the Expansion Strategy, a document that is stamped with the usual stamp seen on endorsed structure plans:
ENDORSED STRUCTURE PLAN
To provide a framework for future detailed planning at the subdivision and development stage
Followed by a date and signature, underneath which are the words:
Delegated under s 16 of the Planning & Development Act 2005
There was no suggestion by Mr Bashall or Mr Penfold that this is not an endorsed structure plan, and neither party argued that to be the case.
The structure plan shows the existing Burekup townsite with a large area abutting Hutchinson Road on the West and Crampton Road to the south, extending to the north and east to the edge of the existing residential development of the townsite. This area is coloured red, which the key indicates means 'residential'. There are two areas of POS located within the red area and the words 'Stage 1', 'Stage 2' and 'Stage 3' are placed at different sections of the larger area. The words 'Stage 1' are located at the northern end of the red area, on the opposite side of Clarke Street (which divides the larger area into two parts) from the site.
A number of 'Planning Policy Statements' are listed on the structure plan, which relevantly include:
1.This Plan serves as a guide to future detailed structure planning and rezoning amendments.
2.Urban development is to occur in accordance with the Strategy Plan[.]
3.Subdivision and development within the identified expansion area is not to occur until such time as the land is appropriately zoned in both the Greater Bunbury Region Scheme and the Local Planning Scheme and a detailed Structure plan has been endorsed by the Shire and the WAPC.
4.Structure Plans and Scheme amendments may apply to ether the whole expansion area or parts thereof.
5.Subdivision of land will only be supported where consistent with the strategy requirements of this Strategy.
…
7.Structure Plans are to be prepared in accordance with the provisions of Local Planning Scheme No 3 applicable to the Development Zone and Liveable Neighbourhoods design policy.
8.If a Structure Plan is submitted for a portion of the identified expansion area only it is to be accompanied by a Contract Plan for the balance of the expansion area which identifies how the proposal will link with, and be complimentary to, the future planning of surrounding and adjoining Structure Plan areas.
9.As a minimum, the areas of public open space as shown on the Strategy Plan are to be identified for public open space purposes on any Structure Plan and ceded to the Crown as a condition of subdivision. The vesting and long term management of POS area is to be resolved at the Structure Plan stage[.]
The Expansion Strategy is dated December 2009 and its purpose is explained in the Executive Summary as follows:
The purpose of this Burekup Townsite Expansion Strategy 2009 is to provide a framework for the orderly expansion of the Burekup Townsite. The Strategy details the Dardanup Shire Council's and the community's expectations for the future expansion of the Burekup townsite[.]
At cl 2.11.4 of the Expansion Strategy the following statements are made about POS:
Council requires the 10% of public open space provision from subdivision to be in the form of areas that are useable for active recreation and located in accordance with Liveable Neighbourhoods. The expansion Strategy 2009 does propose some pockets of public open space to also serve a drainage function.
In accordance with Liveable Neighbourhoods, the existing recreational area on Russell Road would be sufficient in size to cater for the expected future population of the townsite expansion area.
It is estimated that three local parks each of approximately 3,000m² will be required to service townsite expansion area. The Expansion Strategy 2009 also includes provision for two parcels of public open space that will incorporate drainage basins.
It is acknowledged that the proposed future expansion of Burekup under the Draft Local Planning Strategy to 15,000 will also require substantial areas of public open space.
At appendix three of the Expansion Strategy is attached what is described as 'Town Planning Officer Report' that is stated to be part of the unconfirmed minutes of council held 24 June 2009. On the third page of that report, at point 6 are the following statements:
6
Current facilities (such as the school and public open space) can't withstand any more usage.
[E]ach developer is required to give up 10% of their land for pubic open space. This can be either a parcel of land within a subdivision to be developed as a park (as an example) or the equivalent in cash can be given to be put towards buying land to create a larger parcel elsewhere in the Burekup townsite. Two pockets of public open space have been shown on the Expansion Strategy Plan as these will also serve a drainage function but additional land (or cash-in-lieu) will be required. It is likely that additional pubic open space areas will be allocated during the preparation of a Structure Plan.
Mr Bashall asserted that the fact that the site is located within the area identified in the Expansion Strategy and in the structure plan for the townsite expansion could be disregarded because no other sites were currently zoned 'Urban' under the GBRS or 'Residential' under LPS 3 and therefore there was no realistic possibility for any other site to be subdivided presently.
The Tribunal is not persuaded that the fact that part of the site is currently zoned differently to the rest of the area identified in the Expansion Strategy is relevant. The Expansion Strategy and the structure plan specifically envisages a staged process of the townsite expansion and that rezoning of land will happen incrementally.
The Shire of Dardanup's Local Planning Strategy 2015 (Strategy 2015) is endorsed by the respondent and can be viewed on the respondent's website. Map 2.3 of Strategy 2015 depicts the area identified in the structure plan for townsite expansion as 'urban' together with the existing Burekup townsite. At Part 4 of Strategy 2015, under the heading 'Implementation', in relation to Burekup, at point three, the strategy is stated to be 'Townsite expansion in accordance with the Townsite Expansion Strategy' and under the column 'implementation' it says 'Identify land within the expansion area in LPS 9 as "Development" within a "Special Control Area" for structure planning'. The strategic planning encompassed in the Expansion Strategy are very much still part of the local government's strategy for the area. It would be inconsistent with orderly and proper planning to not have due regard to the Expansion Strategy and the structure plan.
As a side note, it is perplexing to the Tribunal why the applicant was not required to provide a more detailed structure plan, together with a concept plan for the remaining townsite expansion area, as required by the structure plan before the proposed subdivision was supported. Without that planning, how was the respondent able to satisfy itself that part of the envisaged POS for expansion of the townsite should not actually be located with, or partly located within, the applicant's land? In any event, the respondent has indicated by its advice note that it will accept cash-in-lieu rather than land for the POS, so presumably it is satisfied that the required POS should be located outside the site.
The proposed subdivision will create 31 new residential lots. It is axiomatic that this will have the likely or possible consequence of bringing additional residents to the locality. Mr Penfold asserts that these additional residents will need POS. Mr Bashall considers that the additional residents will need POS, but asserts that there is sufficient POS in the townsite already that they can use. However, the strategic planning that has been done identifies that the relevant area to look for POS facilities for residents brought to the area by the proposed subdivision, is the townsite expansion area identified by red colouring in the structure plan. This proposed subdivision is the first step in what is intended to be a staged expansion of the Burekup townsite. There is currently no POS in that townsite expansion area at all.
When looking at greenfield subdivision, it is inconsistent with orderly and proper planning to consider what POS may or may not be located within a 400 metre, or 800 metre ring around the site. This would undermine the ability to strategically plan and coordinate such areas through the use of structure plans. Any landowners who hold land located on the periphery of the larger greenfield site would be able to argue, as the applicant has done here, that there is no need to contribute to POS if there is existing POS outside the greenfield site. It also undermines the policy intent that is contained in the planning framework. In addition, it would be highly inequitable. As is apparent from Bestry, at [182] to [185], the need to ensure development contributions, including POS, are charged equitably is part of the planning framework.
The Tribunal is satisfied that condition 14 reasonably and fairly relates to the proposed subdivision.
The applicant made no assertion that condition 14 was invalid having regard to the third limb of the Newbury test. Given that the proposed subdivision will create 31 new residential lots, and given that there is currently no POS within the strategic planning area within which is located, the Tribunal is not satisfied that there is any argument that condition 14 fails the last limb of the Newbury test.
Finally, it is necessary to deal with the applicant's submission that condition 14 is uncertain and therefore invalid. The condition requires identification of an area of land at least 10% in area being shown on the diagram or plan of survey as a reserve. Although it is not stated, it is necessarily implicit that the reference to 10% is a reference to 10% of the land to which the subdivision approval relates. The conditions attach to the subdivision approval, which relates to an identified area of land. If no other reference point is given, it must then relate to that entire area of land. In addition, given that the policies that identify the respondent's positon in relation to POS contributions are publically available and identify that the contribution is to be 10% of the gross subdividable area, this informs the understanding of the words used in condition 14. The Tribunal is satisfied that condition 14 is sufficiently certain.
However, based on the respondent's submission at hearing, that is in fact not what the respondent is seeking. Rather it seeks an area of land that is 10% of the gross subdividable area of the part of the site that is to become proposed Lots 1 to 31. The respondent submitted that it would consent to amendment of the condition to identify that position. In fairness to the applicant, if the condition is otherwise appropriate, the Tribunal should amend the condition to ensure that the applicant's obligation in relation to POS is narrowed to that intended by the respondent.
Having determined that condition 14 is a lawful condition, it is necessary to consider whether the correct and preferable decision is to impose condition 14 in the circumstances of this matter, or not.
As indicated above, it is clear from the Expansion Strategy and from Strategy 2015, that the strategic vision for future expansion of the Burekup townsite as envisaged in the Expansion Strategy is still maintained. There is planning, albeit at the present time of a quite general nature, for the provision of additional POS within the townsite expansion area. The policy position is that all of the developers who will ultimately subdivide land within the townsite expansion area will equitably share in contributing to the necessary POS that each of the subdivsions will contribute to the need for by providing a contribution of 10% of their subdividable land, either as land or cash-in-lieu. The Tribunal has long accepted, and still accepts based on the uncontradicted assertion of the respondent in this matter, that the respondent has consistently applied conditions such as condition 14 in accordance with its policies: see Empire at [22]; Bestry at [67]. The fact that the applicant is the first person to seek to subdivide part of the townsite expansion area does not provide any basis to depart from that longheld policy position, which has sound basis in planning principles.
The Tribunal is also not satisfied that the fact that the site is located on the periphery of the townsite expansion area and next to the existing townsite area, which contains some existing POS, provides any reason to depart from policy. In fact, as indicated above, to do so would be inconsistent with orderly and proper planning.
The applicant has not provided any evidence of having already contributed to POS by way of an earlier subdivision of land that included the site. The respondent asserts that in fact the applicant has not done so.
The Tribunal is not satisfied that there is any reason to depart from the policy position in this case.
The correct and preferable decision in this matter is that the decision of the respondent, upon its reconsideration of the proposed subdivision on 1 August 2018, to retain condition 14 of the subdivision approval is affirmed.
Orders
The Tribunal makes the following orders:
1.The decision of the respondent, made on 1 August 2018, to retain condition 14 to the subdivision approval WAPC 154553, is set aside and instead, condition 14 is to be amended as follows:
An area of land of at least 10% of the gross subdividable area of the part of the site that is proposed to become Lots 1 to 31 (10% of which is 2900 m² in area) in a position to be agreed with the Western Australian Planning Commission, being shown on the diagram or plan of survey (deposited plan) as a reserve for public open space and vested in the Crown under section 152 of the Planning and Development Act 2005 (WA), such land to be ceded free of cost and without any payment of compensation by the Crown. (Local Government)
2.The application is allowed in part.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
9 MAY 2019
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