Bluepoint Holdings Pty Ltd and Western Australian Planning Commission
[2007] WASAT 320
•20 DECEMBER 2007
BLUEPOINT HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 320
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 320 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:103/2007 | 21 SEPTEMBER 2007 AND 24 SEPTEMBER 2007 | |
| Coram: | MR J JORDAN (MEMBER) | 19/12/07 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | The application for review is dismissed Council's decision to impose condition 3 requiring the ceding of 10% public open space is affirmed | ||
| B | |||
| PDF Version |
| Parties: | BLUEPOINT HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Survey strata subdivision Condition requiring ceding of reserve for recreation Cash-in-lieu Use of cash-in-lieu Proximity of existing public open space Open space catchment Ten percent public open space standard Percentage of open space in catchment Whether regional open space included Policy requirements for open space Bush Forever Foreshore reserve Proximity of golf course Reasonableness of open space condition |
Legislation: | City of Bayswater Town Planning Scheme No 24 Land Administration Act 1997 (WA), s 41 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 152, s 154, s 251(1) |
Case References: | Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 |
Orders | 1. The application for review be dismissed.,2. Condition 3 imposed by the respondent on its approval of the subdivision of Lot 888 Kathleen Avenue, Maylands on 26 February 2007 be affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BLUEPOINT HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 320 MEMBER : MR J JORDAN (MEMBER) HEARD : 21 SEPTEMBER 2007 AND 24 SEPTEMBER 2007 DELIVERED : 20 DECEMBER 2007 FILE NO/S : DR 103 of 2007 BETWEEN : BLUEPOINT HOLDINGS PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Survey strata subdivision - Condition requiring ceding of reserve for recreation - Cash-in-lieu - Use of cash-in-lieu - Proximity of existing public open space - Open space catchment - Ten percent public open space standard - Percentage of open space in catchment - Whether regional open space included - Policy requirements for open space - Bush Forever - Foreshore reserve - Proximity of golf course - Reasonableness of open space condition
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Legislation:
City of Bayswater Town Planning Scheme No 24
Land Administration Act 1997 (WA), s 41
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 152, s 154, s 251(1)
Result:
The application for review is dismissed
Council's decision to impose condition 3 requiring the ceding of 10% public open space is affirmed
Category: B
Representation:
Counsel:
Applicant : Mr M Turnbull (Acting as Agent)
Respondent : Mr M Tjhung
Solicitors:
Applicant : Greg Rowe & Associates (Town Planning Consultants)
Respondent : State Solicitor
Case(s) referred to in decision(s):
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
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Summary of Tribunal's decision
1 This matter involved an application for review of a requirement to cede 10% of Lot 888 Kathleen Avenue, Maylands as public open space as a condition of a subdivision approval creating 10 survey strata lots.
2 The applicant submitted that the interpretation of the respondent's policies showed that the condition was not required because there was already in existence at least the required area of public open space within the 800 metre walkable catchment of the site.
3 The respondent was of the view that there was a deficiency in public open space and the condition was required for the planning purpose of addressing that deficiency.
4 The significant difference between the parties was whether the Metropolitan Region Scheme Parks and Recreation Reserve containing Berringa Park and the Maylands Peninsula Golf Course was to be included in the open space calculation. The Tribunal concluded that the Parks and Recreation reserved land has a planning role different from that of public open space and was not to be included in the public open space calculation.
5 The Tribunal found that there was therefore a shortfall of public open space in the walkable catchment and the open space contribution should remain.
6 The appeal against the condition was dismissed.
Introduction
7 These proceedings involve an application brought by Bluepoint Holdings Pty Ltd (applicant) pursuant to s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of condition 3 imposed by the Western Australian Planning Commission (respondent or Commission) on the approval of the survey strata subdivision of Lot 888 (No 11) Kathleen Avenue, Maylands (site).
8 Condition 3 required that an area of land of at least 10% of the gross area of the subdivision be shown on the deposited plan as a "reserve for recreation" and ceded free of cost without any payment of compensation by the Crown.
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Site and locality
9 This site is vacant and has a total area of 2744 square metres. At the northern end, the site has a frontage of about 33.5 metres to Kathleen Avenue. It falls to a rear boundary of about 44.5 metres which abuts a drain reserve.
10 Approximately 120 metres to the west/north-west of the subject land on the other side of Kathleen Avenue is the Puntie Crescent Reserve of 2990 square metres with play equipment. About 250 metres to the south-east in Peninsula Road is another park of approximately 1120 square metres. These areas of open space are referred to as pocket parks by the parties. Approximately 800 metres to the north-west is a commercial and shopping area on Guildford Road. Larger areas of public open space are found 800 metres to the north-east, Gibbney Reserve near the Maylands Peninsula Primary School, and De Lacy Reserve 500 metres to the south.
11 Significant in this matter is the land reserved for Parks and Recreation (P&R Reserve) under the Metropolitan Region Scheme (MRS) between 400 metres and 800 metres to the south and south-west. The P&R Reserve includes the Maylands Peninsula Golf Course (golf course) and an area known as Berringa Park which has significant vegetation along the bank of the Swan River and a cleared strip with a footpath between the vegetation and the adjacent residential areas. A further area reserved for Parks and Recreation under the MRS is located about 800 metres to the south-east adjacent to the Swan River at one end of the Baigup wetlands. A third area of land similarly reserved is Bardon Park adjacent to the Swan River about 850 metres from the site and just beyond Berringa Park. This has been developed with landscaping and picnic facilities.
12 One further area of open space is Lake Bungana between 750 metres and 1050 metres to the south of the site adjacent to the golf course. This is not a reserve or zoned as open space, but is in the control of the City of Bayswater (City) and is available to the general public at all times. It comprises two lakes created from former clay pits surrounded by lawn, vegetation, paths and picnic facilities.
13 The locality is otherwise developed with single houses, with more recent grouped dwellings and multiple dwellings replacing single houses consistent with the high density residential zoning.
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14 A view of the site and the locality was conducted by the Tribunal on the morning of the second day in the company of representatives of the two parties and the two planning witnesses.
Planning framework
15 The site is zoned "Urban" in the MRS and "Medium and High Density Residential" "R60" within The City of Bayswater Town Planning Scheme No 24 (TPS 24).
16 The respondent has imposed condition 3 having regard to a range of operational and draft planning instruments it has adopted, including:
• Development Control Policy 1.1 - Subdivision of Land - General Principles (DC 1.1);
• Development Control Policy 1.3 - Strata Titles (DC 1.3);
• Development Control Policy 2.3 - Public Open Space in Residential Areas (DC 2.3);
• Development Control Policy 2.6 - Residential Road Planning (DC 2.6);
• Draft Statement of Planning Policy 2.8 Bushland Policy for the Perth Metropolitan Region July 2004 (Draft SPP 2.8)
• Liveable Neighbourhoods Draft Operational Policy Edition 3 2004 (Liveable Neighbourhoods); and
• Guidelines for the Preparation of Local Structure Plans for Urban Release Areas (Structure Plan Guidelines).
17 Useful in distinguishing between public open space and regional open space, which would be a P&R Reserve in the MRS, are the definitions in the introduction to Element 4 "Public Parkland" of Liveable Neighbourhoods, where it states:
"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 (POS) 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.)."
The approval and condition 3
18 In October 2005, the applicant sought approval from the respondent for the survey strata subdivision of the site into 10 lots ranging in size from 200 square metres to 257 square metres with a central vehicle driveway as a common area (proposed subdivision).
19 Following the resolution of matters not related to the issue now before the Tribunal, the respondent approved the proposed subdivision in February 2007, subject to 11 conditions. Condition 3 of the subdivision approval stated:
"An area(s) of land at least 10 percent (%) of the gross area of the subdivision, in a position to be agreed with the WAPC, being shown on the Deposited Plan as a 'Reserve for Recreation' and vested in the Crown under s 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."
20 The applicant then lodged with the Tribunal an application for review of condition 3. It was common ground that ceding a "reserve for recreation" would create what is generally described as public open space.
Issues
21 The parties listed the issues as they saw them in their respective statements of issues, facts and contentions. These are, adapted for the purpose of the discussion of the evidence and submissions:
• whether condition 3 should be imposed having regard to:
- (a) the planning framework and in particular the relevant policies of the respondent;
(b) the existing public open space in the locality, having regard to;
(i) whether a 400 metre or an 800 metre walkable catchment for open space should apply; and
(ii) whether all or part of the P&R Reserve adjacent to the Swan River is to be included in the open space calculations;
- • the impact the proposed subdivision will have on the demand for public open space within the locality; and
• whether the public open space contribution required by condition 3 would provide any real benefit to the community (and related to this is the use of the cash-in-lieu of public open space provisions).
Previous approvals and the proposed condition
22 Mr Turnbull, for the applicant, contended that because of the history of amalgamation and development approvals for the site, it would be unreasonable to impose condition 3.
23 In support of this contention, Mr George Hajigabriel, a planner called by the applicant, pointed out that two lots were amalgamated to create the site. Each of the original lots had the potential to be subdivided into five lots and the respondent's policy, set out at cl 3.1.5 of DC 2.3, was that subdivision into five or less lots generally did not generate a public open space condition.
24 The applicant also referred to the February 2004 approval by the City under TPS 24 of a development comprising 17 grouped dwellings. This approval did not include a condition requiring an open space contribution.
25 The Tribunal is not concerned with the potential for a different form of subdivision, but for which there has been no application. The Tribunal also does not accept that an approval for a different form of development by a different decision-making body - the City - necessarily constitutes a basis for not applying the established Commission policies to the applicant's proposed subdivision.
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26 Consistency in decision-making and application of policy is important so that landowners and developers, and their neighbours, have a clear idea of the matters they need to address when considering the use of a parcel of land. In this instance, the respondent has submitted, and it was not disputed, that its policies are well-established. If it had been the respondent that had approved the grouped dwelling development, the Tribunal would have required it to account for the apparent discrepancy in its approach to the use of the site. The City was not before the Tribunal for examination on the decision it made. It is perhaps a regrettable result of the planning system in Western Australia that gives rise to discrete decisions for the same site, from different decision-making bodies, that result in development approvals with different obligations.
27 It is open to the applicant to pursue the development approval issued by the City if it so wishes. Before the Tribunal is an application for review of condition 3 imposed on the subdivision approval. It is for the Tribunal to determine whether there is a case for imposing the condition in this instance, having regard to the legislative and policy instruments that are relevant to the Commission's subdivision approval powers.
The policies and the condition
28 The respondent, at par 8 of its statement of issues, facts and contention (Exhibit 8), identified that cl 3.9.1 of DC 1.1 provides that the respondent may impose conditions requiring developer contributions including the ceding of land for public open space.
29 The applicant, at par 12 of its statement of issues, facts and contentions (Exhibit 9), accepted that the respondent had this discretion.
30 The parties both made submissions on whether a public open space contribution was to be imposed relative to gross subdivisible area only or whether an increase in density as a result of subdivision also gave rise to the requirement.
31 The respondent reminded the Tribunal that the Hepburn-Stephenson Report of 50 years ago referred to open space area per head of population. The Tribunal notes that the respondent's policies, developed from that yardstick, are all expressed in terms that require a 10% open space contribution relative to gross subdivisible area. The only reference that appears relevant to density increase was to ensure an area would be adequately serviced with open space. It might be assumed that if the resulting population density increase was such that open space was inadequate, consideration might be given to requiring additional
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- open space as a condition of subdivision. The parties, however, did not identify any policy directed to open space being required as a function of population density.
32 The expert planners, in their joint statement, expressed unsubstantiated opinions on the intensity of use of open space in the catchment of the site, but without any objective evidence, no conclusion can be drawn on whether the open space is over-utilised. The Tribunal is of the view that the respondent's standard requirement of 10% of gross subdivisible area, as expressed in its policies, is the approach to be adopted in this instance to determine the open space requirement for the catchment of the site.
33 Both parties also simply noted that for strata subdivisions, cl 3.3.3 of DC 1.3 states:
"Consistent with legislation, policy and practice in respect of conventional subdivision, for a proposal involving more than a small number of lots, the Commission may require a contribution towards the provision of public facilities, such as open space, school sites and the like. The Commission may allow a maximum of 50 per cent of the total 10 per cent public open space to be provided as communal open space within the survey-strata subdivision subject to the open space being useable for and developed for general recreation purposes. The remainder of the provision may be provided outside of the subdivision or by way of cash-in-lieu. The Commission will allow up to 20 per cent of the 10 per cent contribution to be in the allocation of a site for community facilities, which may include buildings, providing the site is credited towards the communal open space. Cash-in-lieu could be provided in the same manner as it is with conventional subdivision."
34 Consideration of the relevant policies arises in the context of determining whether condition 3 should be imposed having regard to the walkable catchment of the site and what open space is within the catchment.
Walkable catchment of the site
35 To determine what open space exists in the locality of the site, it is necessary to establish how far from the site a resident might reasonably be expected to walk to make use of open space. The parties used the word "catchment" and the Tribunal notes that, rather than its
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- usual meaning of the area served from a commonly used point such as neighbourhood centre, transport stop or school, the parties used it to describe the area within different radii around the site.
36 Mr Tjhung, for the respondent, made the submission that the distance from the site was not the determinative factor. The 10% public open space requirement was proportional so 10% of the gross subdivisible area was required at any given distance. The Tribunal notes that 274 square metres ceded from the site would satisfy the 10% requirement. As discussed below, there is doubt that such an area of open space would provide any recreation benefit. At a 100 metre radius, 0.32 hectares of open space would be required, at 400 metres, on the respondent's submission, 4.049 hectares would be required, and at 800 metres' radius from the site, 14.945 hectares of open space would be required.
37 While a 10% open space contribution has been the standard imposed consistently for just over 50 years, the Tribunal accepts the applicant's submission that sound town planning practice requires attention be given to the different types of open space and the convenience of access to it by different residents.
38 General guidance in this regard is provided in the respondent's policies DC 2.3 and DC 2.6 together with Liveable Neighbourhoods. Simply put, playgrounds for small children are best located within a few minutes' walk, while playing fields might be more distant.
39 Mr Jason Bouwhuis, a planner called by the respondent, referred to the policy for public open space at page 84 of Liveable Neighbourhoods, which requires that most dwellings be located within 400 metres of a park and that larger district and neighbourhood parks be located on the edge of a neighbourhood. The accompanying sketch showed within a 400 metre catchment, local parks (up to 3000 square metres, including children's playgrounds) or neighbourhood parks (up to 1.0 hectare for active informal play and passive areas). The Tribunal notes that the district park shown extends about 400 metres to 800 metres from the centre of the neighbourhood, which is an intersection with commercial facilities. Mr Bouwhuis acknowledged when examined that in a catchment with such a focus, not all houses will have open space within these distances.
40 Mr Turnbull, agent for the applicant, submitted that DC 2.6 provided a clearer description, referring to Figure 2 - "Three Levels of Residential Neighbourhood". This showed, firstly, a "Street Neighbourhood" with houses within two minutes or 150 metres of a children's playground,
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- next, a five minute or 400 metre catchment around a corner store with four local playgrounds and then, thirdly, a 10 minute or 800 metre radius from a town centre to include "recreation".
41 Mr Hajigabriel said the site has the two small neighbourhood playgrounds within the distance set in DC 2.6, and district parks within a 10 minute walkable radius, which satisfy the planning standards. It is noted that cl 3.1.1, Policy Measures, of DC 2.6, which outlines policy measures, states:
"[Residential Neighbourhoods] should be served by an internal road network comprising local distributors and access roads designed so that ideally, no dwelling is more than 400 m from public open space, 800 metres from the primary school and local shopping centre … (see Figure 4)."
42 Figure 4 of DC 2.6 shows a neighbourhood with a road hierarchy with open space which would appear to be about 1.0 hectare to 1.5 hectares in area.
43 Mr Bouwhuis said that the critical element was that no dwelling be more than 400 metres from public open space. He acknowledged when questioned that Figure 2 of DC 2.6 showed only children's and local playgrounds within 400 metres, but said that, ideally, the full 10% open space would be within 400 metres. He acknowledged that the ideal distribution would be more likely at a greenfields site than in an existing infill situation such as near Kathleen Avenue.
44 Mr Hajigabriel was firmly of the view that the respondent's policies deal only with greenfield subdivisions, and did not provide a clear methodology for determining the extent of a public open space catchment in an infill situation.
45 The policy measures at cl 3.1.3 of DC 2.3 provide only that:
"In terms of location and distribution of public open space, the Commission favours an overall balance between incidental recreation spaces, readily accessible to all residents, and recreational open space, in large units suitable for active leisure pursuits."
46 The Tribunal is inclined to Mr Hajigabriel's submission that the Commission's policies deal predominantly with greenfield subdivisions. In this regard, it is noted that Liveable Neighbourhoods, whilst still a
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- draft, states in the introduction under the heading "Where Liveable Neighbourhoods applies":
"Liveable Neighbourhoods is an operational policy for the design and assessment of structure plans (regional, district and local), and subdivision, strata subdivision and development for new urban (predominantly residential) areas in the metropolitan area and country centres, where two or more lots are created on 'greenfields' sites at the urban edge, or on large urban infill sites in developed areas …"
48 The Tribunal is of the view that while neighbourhoods can be planned to best fit the planning ideals of appropriately located services and facilities, there must, of necessity, be a flexible and realistic approach to identifying any shortfalls in types of open space and the potential locations where any required open space can be sited. This is particularly so in an area such as Maylands where subdivision predates the respondent's policies and, it is understood, the first planning legislation of 1928.
49 The two planning witnesses acknowledged that some open space, particularly areas large enough to be developed as playing fields, might be sited beyond a five minute walk. The distance beyond that which a person should be required to travel to have access to public open space was generally accepted between the parties as being not more than 800 metres, or 10 minutes. The Commission's policies consider 800 metres the maximum walking distance for primary schools and shops. The Tribunal accepts that, in an old area such as Maylands, 800 metres is a reasonable limit for pedestrians to travel to facilities and services. The Tribunal has accepted that open space up to 800 metres, or 10 minutes from the site, particularly where developed as playing fields, can be considered as reasonably being available to serve the future residents of the site.
Public open space within a walkable distance
50 The parties provided plans and schedules identifying public open space in the locality.
51 It was accepted by the parties that the normal 10% public open space requirement is of the gross subdivisible area as provided for in DC 2.3. Gross subdivisible area is the area of land remaining after deducting the
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- area of non-residential land uses from the total area within the selected radius. These areas are deducted because they do not contribute to the demand for the use of public open space. At cl 3.1.1 of DC 2.3, non-residential land uses listed are schools, major regional roads, public utility sites, municipal use sites and other non-residential sites at discretion. An additional non-residential site deducted by the parties was the water body of the Swan River where it appeared within a catchment.
52 Mr Hajigabriel and Mr Bouwhuis disagreed on whether the P&R Reserve should be deducted from the gross subdivisible area. If it is included, as argued by Mr Hajigabriel, it can be included in the open space calculation. If it is not included, as in Mr Bouwhuis's submission, it cannot be included in the open space provision.
53 Mr Bouwhuis, maintaining that the ideal distance for all open space was 400 metres, or a five minute walk, calculated that the gross subdivisible area for that catchment was 40.0495 hectares, of which 10% would be 4.0049 hectares. Within that catchment were Puntie Crescent open space, of 2990 square metres and Peninsula Road Reserve, of 1293 square metres, which totalled only 0.4283 hectares or 1.06% of the gross subdivisible area. Mr Bouwhuis did not include as public open space the edge of the P&R Reserve - Berringa Park - within 400 metres to the south-west of the site.
54 To establish the gross subdivisible area within a radius of 800 metres, Mr Bouwhuis deducted the areas of the primary road (Guildford Road), public purpose sites, commercial sites, the Swan River and the entirety of the P&R Reserve. The respondent's total area of public open space comprised the Puntie Crescent and Peninsula Road pocket parks, part of Gibbney Reserve playing fields to the north-east and De Lacy Reserve playing field to the south-east.
55 Mr Hajigabriel contended that the whole of the P&R Reserve should be included. This would be, from Berringa Park, 5.0 hectares of grassed area adjacent to the path, and 10.77 hectares of fringing vegetation, together with 8.22 hectares at the northern end of the golf course. Both parties included a 1.3 hectare portion of the open space at Lake Bungana to the south of the site in the gross subdivisible area, but only the applicant recognised it as, and included it within, the total area of existing open space.
56 With their respective deductions, the parties made the following submissions in respect of the area within an 800 metre radius of the site:
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57 Mr Hajigabriel, at the hearing, said that, at worst, if the fringing vegetation and golf course were removed from the calculations leaving the cleared area with footpath, even then the 10% open space requirement from the gross subdivisible area was met.
58 If the applicant deducted these areas, the table would read:
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59 It is necessary, therefore, to consider what open space is to be included in the open space calculation.
Open space in the catchment to be included in the calculation
60 There was no dispute that within 800 metres of the site there was to be included in the open space calculation the two nearby pocket parks, the western two-thirds of Gibbney Reserve to the east and De Lacy Reserve playing fields to the south-east of the site. The two parties did not agree on whether there could be included the parklands of Lake Bungana to the south and the P&R Reserve which includes the northern part of the golf course and Berringa Park.
Lake Bungana
61 The respondent included Lake Bungana to the south of the site in the gross subdivisible area but did not include it as part of the area of existing open space because it is zoned "Residential". The Tribunal has been
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- persuaded by the applicant's submission that the 1.3 hectare portion of Lake Bungana within the 800 metre radius should be included in the schedule of open space available to residents of the site.
62 This open space is unusual in that it is zoned "Residential". The view conducted with the parties revealed that it comprises two lakes, with surrounding parkland developed with lawn areas, pathways, seating, gazebos, vegetation thickets, picnic facilities and, at the northern end, a preserved example of the brick kilns that once were in use in the locality.
63 Lake Bungana is in the care and control of the City; it is developed as open space as described and is available to local residents at all times. The zoning would allow residential development but, while there was no evidence to confirm such a conclusion, the view persuaded the Tribunal that there is strength in the applicant's submission that the nature of the site would make this unlikely. This area of open space is available to be used, and it is most likely to remain in place for local residents to enjoy for some time.
MRS Parks and Recreation Reserve
64 The parties disagreed on whether the P&R Reserve within 800 metres to the south-west of the site, comprising Berringa Reserve and the northern part of the golf course, should be included in the open space calculations.
65 It was Mr Tjhung's submission that it was necessary to recognise what he termed the layers of control within the P&R Reserve. The respondent put into evidence Exhibits 10A and 10B, which depicted with a red line Bush Forever site 314, which encompasses a Bush Forever Protection Area. The Bush Forever boundary appeared to coincide with the P&R Reserve boundary. The area within the red line was further subdivided into a blank portion corresponding to the grassed area with the path and, separately identified, by green colouring, a Bush Forever Reserve, which appeared to cover the vegetated area adjacent to the river.
66 The Bush Forever Reserve boundary also coincided with a conservation category wetland, and the cleared strip coincided with a multiple use category wetland identified by the Department of Environment and Conservation (Exhibit 12). The respondent said the P&R Reserve was also in the management area of the Swan River Trust (Exhibit 11).
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67 There were no submissions on procedures required relevant to each of these layers of control if a use or development was proposed. Mr Tjhung contended that the layers of control meant that if one control might allow development and use as open space, another control for the same area might not. It was asserted, however, that the common concern of the bodies responsible for the different layers was the conservation of an area of regional environmental significance. This, it was said, demonstrated that the P&R Reserve had a purpose different from that of public open space and so should not be included in the open space calculations.
68 Mr Hajigabriel contended that as the P&R Reserve is convenient, available and used by locals, it performs a local as well as a regional role and should be included in the calculation of public open space. The grassed area with the path should be considered as available, at least for passive recreation, on the basis of Draft SPP 2.8 approach to Bush Forever Protection Area. Clause cl 5.1(1)(vi) states that existing cleared areas within a Bush Forever Protection Area are not intended to be protected through Draft SPP 2.8 or excluded from development. Further, cl 5.2.2(vii) provides that whole or part of the conservation area may be accepted as a component of the open space contribution on a case-by-case basis. The mixed use designation of the conservation category wetland was also said to provide for its use as passive open space.
69 Mr Hajigabriel said the fringing vegetation provided a passive recreation use for the local residents, with overlooking seats in elevated positions for its appreciation.
70 Mr Bouwhuis said Draft SPP 2.8 cl 5.1 (1)(vi) went on to provide that development in the cleared areas may be subject to controls in accordance with Draft SPP 2.8 or other government policies where the development would have a direct adverse impact on the bushland, and he believed that would be required if use of the cleared area increased. Mr Tjhung submitted that an inadequate level of open space elsewhere might increase pressure to recreate on the cleared area of the P&R Reserve, affecting its use for the identified purposes of protecting and maintaining the foreshore.
71 Mr Bouwhuis identified that cl 5.2.2 of Draft SPP 2.8 was concerned with significant bushland in urban industrial or resource development areas, and he considered it did not apply in this case. He said cl 5.2.1 of Draft SPP 2.8 was a more relevant reference because it was concerned
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- with Bush Forever land reserved for Parks and Recreation in the MRS and did not include accepting the site as part of public open space.
72 Mr Bouwhuis said that a further consideration was the P&R Reserve being a foreshore reserve, which he identified by reference to the map at page 92 of the respondent's bundle of documents (Exhibit 4). This depicted the 1 in 100 year flood line divided into the floodway and the flood fringe. The flood fringe extends to at least the boundary of the P&R Reserve and beyond in some locations. Mr Bouwhuis said the purpose of the foreshore reserve was to maintain environmental characteristics, which is a purpose over and above any active or passive recreation. He said the land was ceded for this purpose years ago when it was subdivided. In his opinion, use of the area as open space would adversely affect the purpose of it being a foreshore reserve.
73 Mr Hajigabriel said he could find no evidence that the land adjacent to the river had been ceded as a foreshore reserve. He also said, correctly, that appropriately designed development might be allowed in the flood fringe.
74 The Tribunal accepts that land might be identified as necessary to be ceded as a foreshore reserve adjacent to a river or other water body. Section 152(1) of the PD Act provides that if a condition of subdivision requires land to be given up for any of the purposes listed, including, at s 152(1)(e), foreshore management, the land shall vest in the Crown. Subsection 152(3)(c) provides that the vested land is to be reserved under s 41 of the Land Administration Act 1997 (WA) for the purpose for which it was taken.
75 There was no evidence the P&R Reserve had been vested as a foreshore reserve in this instance. The Tribunal does not consider that this diminishes the significance of the role of the layers of control over Berringa Park in protecting the foreshore and fringing vegetation. The Tribunal is not convinced, however, that the use of the cleared area of the P&R Reserve as passive recreation would have a detrimental impact on this function.
76 There are circumstances where a subdivider might have a condition imposed that requires land to be ceded for other purposes, such as for a foreshore reserve. If, for example, the drain at the rear of the site were a natural watercourse, such a condition might have been imposed. It is then that consideration might be given to that reserve as part of the open space contribution, as provided for in DC 2.3. There was no evidence before the
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- Tribunal that, at the time of acquiring what is now P&R Reserve, there was any consideration given to any of it being considered to offset any subdivision requirement to cede public open space.
77 The P&R Reserve is used, in part, for the same purposes as public open space - in this case, mostly passive recreation. The applicant's submission is that, because it is or can be so used, then it is appropriate to consider it as part of the public open space in the locality.
78 Certain levels of development in a P&R Reserve are appropriate to make it accessible for use by the public where this does not compromise the conservation of vegetation and the foreshore. This has been done by the development of the path for walking and cycling, and the Tribunal notes that such paths are a common feature of P&R Reserves along the foreshore of the Swan River.
79 The Tribunal does not accept that the development of such a facility changes the reserve from regional open space to public open space, as defined. If, at the time a subdivision occurred, it was recognised that, for some specific reason, part of a P&R Reserve should not be set aside for acquisition by the Commission but should be considered as part of an open space contribution, then it follows that the area so identified could be recognised by other subdividers as local public open space in their deliberations.
80 The Tribunal does not accept that it is sound planning practice to identify from within the range of uses made of an acquired P&R Reserve the uses nearby residents are able to enjoy, and then conclude from that use that the regional open space should be considered part of the provision of public open space.
81 The applicant also contended that the golf course, which is in the P&R Reserve, was a facility for local recreation and should be included as existing open space. Mr Hajigabriel rejected the respondent's submission that a golf course was an exclusive use and so could not be considered public open space. He compared the use to a skate park or a children's playground and said having to pay was no different from paying to hire a hall or attend a play group, which are uses allowed in public open space. For non-golfing locals, the course provided a sense of openness and an attractive view.
82 The Tribunal notes that cl 3.3.1 and cl 3.3.2 of DC 2.3 provide that where a proposed subdivision includes land designated as a P&R Reserve, the Commission may include that land in the subdivider's public open
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- space contribution where it is developed for an appropriate local purpose. The applicant's comparison with other open space uses for particular groups is noted, but the scale of the golf course relative to open space requirements, the absence of any information on the arrangements for its creation, and it not being part of the proposed subdivision, has led the Tribunal to form the view that it is not appropriate to include it within the open space calculation. The golf course being part of the view from different points is not sufficient to make it public open space.
83 From the above discussion, it can be restated that the Tribunal has concluded that 1.3 hectares of Lake Bungana is to be included in the gross subdivisible area, as has been done by both parties, and may be included in the public open space calculation. The P&R Reserve incorporating Berringa Reserve and the golf course is not to be included at all. The table would therefore be as follows:
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84 The Tribunal has concluded that there is a shortfall in public open space in the catchment of the site.
Benefit of the open space contribution
85 Ten percent of the site is 247.4 square metres. The applicant said this area would be unusable, difficult to maintain, and would effectively reduce the subdivision by two lots.
86 Mr Bouwhuis said condition 3 required the location of the open space to be agreed by the respondent, with the City being the clearing agency. He also referred to advice note (iii) of the respondent's approval of the subdivision, which stated:
"With regard [to] Condition 3, the WAPC hereby approves of a cash-in-lieu contribution in accordance with Section 153 of the Planning and Development Act 2005."
87 Section 154 of the PD Act provides that the money from cash-in-lieu contributions is to be spent, relevantly, by the local government
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- purchasing land or, with the approval of the Minister, improving or developing vested parks and recreation grounds.
88 The applicant submitted that the local government has no adopted strategy for the purchase of land for open space as required by DC 2.3 or for the development of existing parks. It believed, from discussion with the City, that the money would be spent on Bardon Park, a park developed in the P&R Reserve of the MRS beyond the 800 metres catchment of the site and too distant to be of benefit to residents of the site. The cash-in-lieu would therefore not be properly used.
89 Advice note (iii) is not a condition of the approval and, as submitted by Mr Tjhung, does not fall within the ambit of the review proceedings for this matter: Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [51] - [54]. The Tribunal would make the comment, however, that while the local government does not yet have an open place strategy, there is open space within the catchment that the City could upgrade, and any open space upgrading or improvement can only occur with the approval of the Minister.
Conclusion
90 There was no dispute between the parties that the legislation and the respondent's policies provided the respondent with the discretion to impose a condition of subdivision requiring a public open space contribution of 10% of the gross subdivisible area in appropriate circumstances. The question before the Tribunal was whether condition 3 requiring such a condition should be imposed on the proposed subdivision of the site.
91 The applicant submitted that the interpretation of the respondent's policies showed that condition 3 was not required because there was already in existence at least the minimum, if not more, required area of public open space within the 800 metre walkable catchment of the site.
92 The respondent was of the view that there was a deficiency in public open space, particularly within a 400 metre catchment, but also within an 800 metre catchment, so condition 3 was required for the proper planning purpose of addressing that deficiency.
93 The Tribunal has determined that, in the circumstances of this infill subdivision proposal, an 800 metre catchment is the appropriate area for determining public open space.
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94 The significant difference between the parties was whether the P&R Reserve land containing Berringa Park and the golf course is to be included in the open space calculation. The Tribunal has concluded that the Parks and Recreation reserved land under the MRS has a planning role different from that of public open space and is not to be included in the public open space calculation.
95 The Tribunal has found that there is a shortfall of public open space in the catchment identified for the site, and, therefore, condition 3 fulfils the proper planning purpose of requiring this subdivision to contribute to public open space.
96 The appeal against condition 3 has therefore been dismissed.
Orders
The Tribunal has determined that:
1. The application for review be dismissed.
2. Condition 3 imposed by the respondent on its approval of the subdivision of Lot 888 Kathleen Avenue, Maylands on 26 February 2007 be affirmed.
I certify that this and the preceding [96] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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