City of Swan v LWP Property Group Pty Ltd
[2013] WASCA 90
•5 APRIL 2013
CITY OF SWAN -v- LWP PROPERTY GROUP PTY LTD [2013] WASCA 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 90 | |
| THE COURT OF APPEAL (WA) | 05/04/2013 | ||
| Case No: | CACV:75/2012 | 8 MARCH 2013 | |
| Coram: | MARTIN CJ PULLIN JA MURPHY JA | 8/03/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CITY OF SWAN LWP PROPERTY GROUP PTY LTD OAKOVER VINEYARDS PTY LTD |
Catchwords: | Town planning 'Structure Plan' 'Development Contribution Areas' Appeal from State Administrative Tribunal decision Appeal incompetent as an attempt to appeal against a finding of fact No risk of estoppel |
Legislation: | Planning and Development Act 2005 (WA), s 241, s 252 |
Case References: | Attorney-General (NSW) v Quin (1990) 170 CLR 1 Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CITY OF SWAN -v- LWP PROPERTY GROUP PTY LTD [2013] WASCA 90 CORAM : MARTIN CJ
- PULLIN JA
MURPHY JA
- Appellant
AND
LWP PROPERTY GROUP PTY LTD
First Respondent
OAKOVER VINEYARDS PTY LTD
Second Respondent
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ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
Citation : LWP PROPERTY GROUP PTY LTD and CITY OF SWAN [2012] WASAT 129
File No : DR 303 of 2010
Catchwords:
Town planning - 'Structure Plan' - 'Development Contribution Areas' - Appeal from State Administrative Tribunal decision - Appeal incompetent as an attempt to appeal against a finding of fact - No risk of estoppel
Legislation:
Planning and Development Act 2005 (WA), s 241, s 252
Result:
Application for leave to appeal dismissed
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : Mr D R Williams QC & Mr C A Slarke
First Respondent : Mr D H Solomon & Mr C S Williams
Second Respondent : Mr P McQueen
Solicitors:
Appellant : McLeods
First Respondent : Solomon Brothers
Second Respondent : Lavan Legal
Case(s) referred to in judgment(s):
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
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1 REASONS OF THE COURT: On 8 March 2013, the court dismissed the appellant's application for leave to appeal with reasons to be published later. These are the reasons.
2 Before stating the facts relating to this appeal it is necessary, in order to allow a proper understanding of these reasons, to refer to the City of Swan Local Planning Scheme No 17 (Scheme) and to two separate provisions in it.
Clause 5A.2 - Development Contribution Areas
3 Clause 5A.2 is concerned with 'Development Contribution Areas' (DCAs) and the preparation of a Development Contribution Plan (DCP) in relation to each DCA.
4 Clause 5A.2.4 states that the purpose of having DCAs is to:
(a) provide for the equitable sharing of the costs of infrastructure and administrative costs between owners;
(b) ensure that cost contributions are reasonably required as a result of the subdivision and development of land in the DCA; and
(c) coordinate the timely provision of infrastructure.
5 Clause 5A.2.8 states some guiding principles for the preparation of DCPs. One of the guiding principles is 'need and nexus', that is, the 'need for the infrastructure' (need) and the 'connection between the development and the demand created' (nexus). Clause 5A.2.6.1 states that a DCP does not have effect under the Scheme until it has been incorporated in sch 13 of the Scheme as part of the Scheme.
Clause 5A.1 - Structure Planning Areas
6 Clause 5A.1 relates to what are called 'structure planning areas' in relation to which a 'structure plan' may be prepared and adopted by the appellant. The purposes of structure planning areas, according to cl 5A.1.2.1, are to:
(a) identify areas requiring comprehensive planning; and
(b) coordinate subdivision and development in areas requiring comprehensive planning.
7 A structure plan may be prepared by the appellant or an owner of land (cl 5A.1.5.1). It may be adopted with or without modifications or
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- refused by the appellant (cl 5A.1.9.1), and it comes into effect when inter alia it is adopted by the appellant (cl 5A.1.12.1(b)).
Facts
8 With that understanding of the Scheme the facts can be stated. The first respondent submitted to the appellant a proposed structure plan for adoption by the appellant pursuant to cl 5A.1.9.1 of the Scheme. The appellant adopted the structure plan with a modification in the form of a condition which read:
Agree that the provision of the proposed bridge over Ellen Brook through Lot 4 Railway Parade, Upper Swan will provide a beneficial outcome in terms of access and traffic dispersal for both Village 7B and The Vines and accordingly that the developers of Village 7B be required to make a contribution to the cost of the bridge based on the City's most recent traffic modelling. Current modelling estimates a contribution of 57% of the bridge construction cost of around $8 million.
Review proceedings before the State Administrative Tribunal
9 The first respondent sought from the State Administrative Tribunal a review of the appellant's decision, which it was entitled to do: see s 252 of the Planning and Development Act 2005 (WA) and cl 5A.1.16.1 of the Scheme. Pursuant to s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the review was by way of a hearing de novo. The second respondent was given leave to intervene.
10 The Tribunal in its reasons said [3]:
The review focussed on two central issues:
1) whether it was lawful for the City to impose a requirement that the applicant makes a contribution to the cost of the construction of a bridge over Ellen Brook on, or adjacent to, Lot 4; and
2) whether the City had the power to seek such a contribution in the absence of a formally constituted 'Development Contribution Area' and 'Development Contribution Plan' under the provisions of the City of Swan Local Planning Scheme No 17.
11 It is difficult to understand what is meant by the first issue. What the Tribunal may have meant by the expression 'lawful' was whether the appellant had the power to impose the requirement, which is really the point addressed in the second of the two 'central issues'. Having stated the 'two central issues' the Tribunal at [4] stated that it was agreed between the parties that the validity of the condition in regard to the first of the two
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- central issues should be judged against what is referred to as the Newbury test. This was a reference to Newbury District Council v Secretary of State for the Environment [1981] AC 578 in which the House of Lords, reflecting a well-established line of authority, spelt out three criteria by which the validity of conditions on approvals in relation to subdivision or development. The criteria were:
(a) that the conditions imposed must be for a planning purpose and not for any ulterior purpose;
(b) they must fairly and reasonably relate to the development permitted; and
(c) they must not be so unreasonable that no reasonable planning authority could have imposed them (599 - 600).
12 Applying the Newbury test, the Tribunal decided that the condition was imposed for a planning purpose, thereby satisfying the first of the criteria, but concluded that the 'second leg' of the Newbury test was not satisfied [71], [78]. In fact, it did this by determining whether there was a 'need for the bridge' [77] which was a requirement not under the second criterion stated in Newbury, but a requirement of State Planning Policy 3.6. This was a policy the Tribunal was bound to take into account by reason of s 241 of the Planning and Development Act. Nevertheless, the Tribunal concluded that the 'second leg' of the Newbury test was not satisfied because of a lack of 'need'. In consequence of that conclusion, the Tribunal said that it followed that the condition was unreasonable so that the 'third leg' of Newbury was not satisfied [79].
13 As to the second 'central issue' (the issue of 'power'), the Tribunal said that it rejected the first respondent's submission that the 'only' way (see [87] and [94]) in which the appellant could 'require developers to make contributions to the cost of constructing infrastructure that services their development along with one or more other proposed or possible developments' [87] was under cl 5A.2 of the Scheme [87], [94].
14 The Tribunal said that the Intervener's suggested approach was the correct approach [95]. This was that infrastructure can fall into one of three categories being:
(a) an upgrade of existing infrastructure as a direct consequence of the development, in which case imposition of a condition of the type imposed was 'appropriate' (that is, under cl 5A.1) [90];
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- (b) where a particular development itself required the introduction of new infrastructure in which case a 'condition' could be 'validly imposed' (that is, under cl 5A.1) [91]; and
(c) where there was some district or regional infrastructure which might be required, and a variety of landowners might have a link to that infrastructure, in which case (the intervener submitted that) the 'clause 5A.2 Development Contribution Area approach should be applied' [92].
15 The Tribunal went on to conclude (implicitly) that this was a 'third category' case, and that it was 'inappropriate' for the appellant to impose the requirement for a contribution to the cost of the bridge 'other than through a DCP adopted for a DCA pursuant to cl 5A.2 of the Scheme' [96] - [97]. By that answer and the use of the word 'inappropriate', the Tribunal did not answer either of the 'central issues'. By this the Tribunal seemed to imply that cl 5A.1 conferred power to impose the condition in category 1 and 2 cases, but not in category 3 cases.
16 The Tribunal said that the 'correct approach' of the Intervener was not 'substantially different' to that of the appellant [95]. The appellant's approach was that the 'imposition of a requirement for a developer to contribute to the cost of infrastructure through a structure plan' was only appropriate for 'reasonably simple cases' and cl 5A.2 was required for more complicated cost-sharing arrangements. The appellant submitted that the existence of cl 5A.2 should not be construed to limit the discretion of the appellant to impose cost-sharing arrangements under cl 5A.1 [83] - [85].
17 The Tribunal disagreed with the appellant's contention that this was a 'simple case' [95]. It can be inferred from the Tribunal's reasoning that the first and second 'categories of infrastructure' outlined by the Intervener are 'simple cases' (in which cl 5A.1 is 'appropriate') but that the third category is not a 'simple case' and cl 5A.2 is therefore the appropriate mechanism for imposing cost-sharing arrangements in this category.
The appeal to this court
18 The appellant appealed against the Tribunal's decision. An appeal to this court is permitted pursuant to s 105 of the SAT Act. An appeal is only permitted if leave is granted, and an appeal can only be brought on a question of law.
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19 The five grounds of appeal advanced challenge the Tribunal's decision about whether or not the condition satisfied the Newbury test or the finding that the land in question contributed to the need for the bridge. None of the grounds challenged the conclusion that it was 'inappropriate' to impose the condition.
20 During submissions on the application for leave to appeal, senior counsel for the appellant advised the court that the appellant had now decided it would proceed to amend the Scheme by creating a new DCA and by adopting a DCP pursuant to cl 5A.2 of the Scheme (ts 4). The precise boundaries of the DCA are not yet known, nor is the form of the DCP. Thus, it has not yet been revealed what infrastructure might be the subject of the DCP (ts 26 - 28).
21 Senior counsel for the appellant also announced that the appellant would not seek recovery from the first respondent via the condition imposed by the appellant, even if the appeal succeeded (ts 14). Senior counsel said that if it succeeded on the appeal the appellant would not be seeking the 'orders wanted', which were set out on page 26 of the white appeal book as part of its case (ts 20 - 21). The 'orders wanted' read:
1. The decision of the State Administrative Tribunal made on 25 June 2012 is set aside.
2. The condition sought to be imposed by the Appellant on the Ellenbrook Village 7B Development Plan with respect to a contribution to the cost of constructing a bridge over Ellen Brook is a valid condition.
22 Instead, senior counsel said that the appellant would seek a declaration to the effect that the finding that the second leg of the Newbury test had not been made out (because of a lack of need) was wrong (ts 21).
23 He said the appellant wanted such a declaration because it was concerned to avoid the prospect that the respondent, or perhaps other landowners, might oppose or challenge the preparation of a DCP on the basis that there was no 'need' for it in view of the decision of the Tribunal (ts 17 - 18). There is no basis for the grant of such relief. This is because insofar as the appellant wishes to challenge the Tribunal's finding about the lack of 'need', the appellant is attempting to challenge a finding of fact. Such a challenge is not open under s 105 of the SAT Act. The appellant contended that the Tribunal erred in concluding that there was no evidence of need. However, the reasons should be read not as concluding
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- that there was no evidence, but rather that the evidence which was given did not establish that the development of the land created a need for the bridge.
24 Secondly, insofar as the appellant's concern about whether the effect of the Tribunal's decision was of any relevance (which it was not), such concern was misplaced. The Tribunal's decision stands as an administrative decision in relation to the adoption of a structure plan. It will not impede the appellant's consideration of the adoption of a DCP or the establishment of a DCA under cl 5A.2, firstly because the considerations will be different, and secondly because an administrative decision cannot create an estoppel in relation to a subsequent decision required by law: Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 208 - 211; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 [105]; Attorney-General (NSW) v Quin (1990) 170 CLR 1, 17.
25 Leave to appeal was refused because, in these circumstances, even if the appellant had established the errors which it asserted, the decision of this court would have had no impact upon the rights and obligations of the parties. Cast in terms of the factors customarily considered when leave to appeal from a decision of the Tribunal is sought, there was no prospect that allowing 'the error to go uncorrected would impose substantial injustice'. See Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361. As it has been unnecessary to give any consideration to the merits of the appellant's contentions with respect to error, the refusal of leave to appeal should not be seen as any form of endorsement of the reasoning or conclusion of the Tribunal.
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