Claddagh Holdings WA Pty Ltd and City of Gosnells
[2014] WASAT 126
•25 SEPTEMBER 2014
CLADDAGH HOLDINGS WA PTY LTD and CITY OF GOSNELLS [2014] WASAT 126
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 126 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | DR:135/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 25/09/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Condition imposed on strata subdivision affirmed | ||
| B | |||
| PDF Version |
| Parties: | CLADDAGH HOLDINGS WA PTY LTD CITY OF GOSNELLS |
Catchwords: | Town planning Strata titles Subdivision Certificate of approval for bringing of land under Strata Titles Act 1985 (WA) Condition imposed by local authority on strata subdivision Six grouped dwellings constituting 'built strata' Local authority acting as delegate of Western Australian Planning Commission Delegate imposing condition on certification requiring ceding to Crown of 10% of land free of charge for public open space with notification of statutory cash in lieu mechanism Notification of public open space requirements on outline development plan Local government certificate of zoning gave notice to developer applicant of outline development plan as basis for R30 residential zoning Certificate applied for after construction of strata buildings Strata Titles Act 1985 (WA) requiring application to be made prior to construction being completed unless 'otherwise agreed' Tribunal holding delegate had 'otherwise agreed' and application was valid Whether conditions could only be imposed where application made prior to construction or modification of strata building Tribunal reaffirming that Western Australian Planning Commission did not lose the power to impose certain conditions where application had been 'otherwise agreed' Developer applicant claiming that condition was 'unexpected' and imposed 'significant financial burden' Developer applicant claiming Western Australian Planning Commission policy requirements mandated public open space arrangements being attended to earlier in development process Tribunal holding that condition reflected longstanding practice and subdivision standards in the State Tribunal holding that planning policy framework justified condition Tribunal holding condition reasonably and fairly related to the strata subdivision Tribunal holding that nexus not severed by collection of cash in lieu at this final stage of development Tribunal holding that administrative consistency and link with statutory basis for cash in lieu alternative justified form of condition Application for review dismissed Words and phrases: 'otherwise agreed' |
Legislation: | Planning and Development Act 2005 (WA), s 135, s 136, s 153 Strata Titles Act 1985 (WA), s 24 s 25, s 27(3)(b) |
Case References: | Carbone Bros Pty Ltd v the Shire of Harvey [2014] WASC 284 Dalcorp Holdings Pty Ltd and Town of Victoria Park [2013] WASAT 138 Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98 Lloyd v Robinson (1962) 107 CLR 142 Maraldi v City of Rockingham (2007) 55 SR (WA) 229; [2007] WASAT 225 Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 Tierney and Western Australian Planning Commission [2011] WASAT 153 Tierney and Western Australian Planning Commission [2011] WASAT 192 Western Australian Planning Commission v Temwood Holding Pty Ltd (2004) 221 CLR 30 Williamson and Western Australian Planning Commission [2013] WASAT 185 |
Orders | On the application determined on the documents by Senior Member Peter McNab, it is on 25 September 2014 ordered that:,1. The application for review is dismissed.,2. The decision under review is affirmed. |
Summary | The applicant developed land in the Beckenham precinct in the City of Gosnells. Six grouped dwellings were constructed and the applicant then sought built strata subdivision approval. The City of Gosnells was the delegate of the Western Australian Planning Commission for such purposes. The City imposed a condition on the strata approval reflecting a contribution of 10% of the land being reserved for public open space requirements. This contribution could be collected under a statutory mechanism by payment to the City of Gosnells of cash in lieu. The 10% requirement was also replicated in a note on the outline development plan for the precinct. There was no suggestion here that the contribution had been otherwise met or that there was some case based on the merits that justified, say, a reduction of the 10% requirement. ,The contribution was imposed here on what may be regarded as the final stage of development. The applicant argued that the condition was unexpected and that it had created a significant financial burden. The applicant submitted that there was insufficient connection between the development and the contribution and that it ought to have been collected at various earlier points in the development process. Published planning practice indicated that it was usual for the contribution to be imposed either at the structure planning stage, or in a subdivision prior to further development, or at the time of the consideration of any development application. ,This public open space amenity requirement was established in many planning instruments and had been regularly imposed in the State on subdivision and other development approvals, and then for some considerable time. The Tribunal had consistently accepted the rationale for the contribution and had generally upheld the 10% obligation. ,The statutory mechanism for strata approval contemplated application to the City of Gosnells for approval before the construction of the grouped dwellings unless the delegate 'otherwise agreed'. The Tribunal had in an earlier unrelated case held that where the delegate had 'otherwise agreed' to accept the application then the delegate did not lose its power to attach conditions to the approval. The Tribunal reaffirmed that decision. Here, the delegate had 'otherwise agreed' to accept the application after the construction was completed. However, the Tribunal had envisaged in that earlier case that there may be some limitations on the scope of any condition imposed after a strata building was completed.,The Tribunal upheld the validity of the condition under review. The condition furthered a proper planning purpose found in the planning framework and was reasonably and fairly related to the amenity needs arising out of the subdivision. There was authority at the highest levels suggesting that developer contributions for amenity infrastructure was a proper quid pro quo for the privilege of the State's permission to subdivide land. The delegate did not lose the power to attach this condition after the strata development was built because notice of the contribution had been given in the planning framework and the obligation to contribute subsisted to the final stage of the development. ,Although the condition, if divorced of its context and history, seemed inappropriate for a development of only six strata lots, long-standing public open space requirements, administrative consistency between other cases and approvals, and the connection between the form of the condition and the statutory mechanism available for regulating cash in lieu payments mandated approval of the condition.,The application for review was therefore dismissed and the decision to impose the condition was affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : CLADDAGH HOLDINGS WA PTY LTD and CITY OF GOSNELLS [2014] WASAT 126 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 25 SEPTEMBER 2014 FILE NO/S : DR 135 of 2014 BETWEEN : CLADDAGH HOLDINGS WA PTY LTD
- Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Town planning Strata titles Subdivision Certificate of approval for bringing of land under Strata Titles Act 1985 (WA) Condition imposed by local authority on strata subdivision Six grouped dwellings constituting 'built strata' Local authority acting as delegate of Western Australian Planning Commission Delegate imposing condition on certification requiring ceding to Crown of 10% of land free of charge for public open space with notification of statutory cash in lieu mechanism Notification of public open space requirements on outline development plan Local government certificate of zoning gave notice to developer applicant of outline development plan as basis for R30 residential zoning Certificate applied for after construction of strata buildings Strata Titles Act 1985 (WA) requiring application to be made prior to construction being completed unless 'otherwise agreed' Tribunal holding delegate had 'otherwise agreed' and application was valid Whether conditions could only be imposed where application made prior to construction or modification of strata building Tribunal reaffirming that Western Australian Planning Commission did not lose the power to impose certain conditions where application had been 'otherwise agreed' Developer applicant claiming that condition was 'unexpected' and imposed 'significant financial burden' Developer applicant claiming Western Australian Planning Commission policy requirements mandated public open space arrangements being attended to earlier in development process Tribunal holding that condition reflected longstanding practice and subdivision standards in the State Tribunal holding that planning policy framework justified condition Tribunal holding condition reasonably and fairly related to the strata subdivision Tribunal holding that nexus not severed by collection of cash in lieu at this final stage of development Tribunal holding that administrative consistency and link with statutory basis for cash in lieu alternative justified form of condition Application for review dismissed Words and phrases: 'otherwise agreed'
Legislation:
Planning and Development Act 2005 (WA), s 135, s 136, s 153
Strata Titles Act 1985 (WA), s 24 s 25, s 27(3)(b)
Result:
Condition imposed on strata subdivision affirmed
Summary of Tribunal's decision:
The applicant developed land in the Beckenham precinct in the City of Gosnells. Six grouped dwellings were constructed and the applicant then sought built strata subdivision approval. The City of Gosnells was the delegate of the Western Australian Planning Commission for such purposes. The City imposed a condition on the strata approval reflecting a contribution of 10% of the land being reserved for public open space requirements. This contribution could be collected under a statutory mechanism by payment to the City of Gosnells of cash in lieu. The 10% requirement was also replicated in a note on the outline development plan for the precinct. There was no suggestion here that the contribution had been otherwise met or that there was some case based on the merits that justified, say, a reduction of the 10% requirement.
The contribution was imposed here on what may be regarded as the final stage of development. The applicant argued that the condition was unexpected and that it had created a significant financial burden. The applicant submitted that there was insufficient connection between the development and the contribution and that it ought to have been collected at various earlier points in the development process. Published planning practice indicated that it was usual for the contribution to be imposed either at the structure planning stage, or in a subdivision prior to further development, or at the time of the consideration of any development application.
This public open space amenity requirement was established in many planning instruments and had been regularly imposed in the State on subdivision and other development approvals, and then for some considerable time. The Tribunal had consistently accepted the rationale for the contribution and had generally upheld the 10% obligation.
The statutory mechanism for strata approval contemplated application to the City of Gosnells for approval before the construction of the grouped dwellings unless the delegate 'otherwise agreed'. The Tribunal had in an earlier unrelated case held that where the delegate had 'otherwise agreed' to accept the application then the delegate did not lose its power to attach conditions to the approval. The Tribunal reaffirmed that decision. Here, the delegate had 'otherwise agreed' to accept the application after the construction was completed. However, the Tribunal had envisaged in that earlier case that there may be some limitations on the scope of any condition imposed after a strata building was completed.
The Tribunal upheld the validity of the condition under review. The condition furthered a proper planning purpose found in the planning framework and was reasonably and fairly related to the amenity needs arising out of the subdivision. There was authority at the highest levels suggesting that developer contributions for amenity infrastructure was a proper quid pro quo for the privilege of the State's permission to subdivide land. The delegate did not lose the power to attach this condition after the strata development was built because notice of the contribution had been given in the planning framework and the obligation to contribute subsisted to the final stage of the development.
Although the condition, if divorced of its context and history, seemed inappropriate for a development of only six strata lots, long-standing public open space requirements, administrative consistency between other cases and approvals, and the connection between the form of the condition and the statutory mechanism available for regulating cash in lieu payments mandated approval of the condition.
The application for review was therefore dismissed and the decision to impose the condition was affirmed.
Category: B
Representation:
Counsel:
Applicant : Mr M Gregory
Respondent : Mr L Gibson (Acting as Agent)
Solicitors:
Applicant : Castledine Gregory
Respondent : N/A
Case(s) referred to in decision(s):
Carbone Bros Pty Ltd v the Shire of Harvey [2014] WASC 284
Dalcorp Holdings Pty Ltd and Town of Victoria Park [2013] WASAT 138
Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98
Lloyd v Robinson (1962) 107 CLR 142
Maraldi v City of Rockingham (2007) 55 SR (WA) 229; [2007] WASAT 225
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Tierney and Western Australian Planning Commission [2011] WASAT 153
Tierney and Western Australian Planning Commission [2011] WASAT 192
Western Australian Planning Commission v Temwood Holding Pty Ltd (2004) 221 CLR 30
Williamson and Western Australian Planning Commission [2013] WASAT 185
Introduction
1 This a review of a condition imposed by the respondent local government, the City of Gosnells (City), as delegate of the Western Australian Planning Commission (WAPC) in respect of a built strata application comprising six grouped dwellings located on certain land in Beckenham. Pursuant to the proposed strata plan, the applicant has sought subdivision approval from the City in respect of these six grouped dwellings.
2 The condition, Condition No 1, required 10% of the subject land to be reserved for the purposes of recreation and to be vested in the Crown (State) free of any compensation to the owner. An advice note accompanying the condition refers to the statutory provisions by which a cash in lieu equivalent payment may be made. Such advice notes do not, of course, ordinarily form part of any review: see Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98.
3 For the reasons that follow, I respectfully disagree with the applicant's contentions both that the condition is void or, alternatively, that as a matter of discretion, the condition ought not to be imposed.
Background and agreed facts
4 The parties have agreed a comprehensive set of facts which include references to the statutory and policy framework in which the decision is to be made. That document reads as follows:
Zoning
1. The subject property is 1546 (Lot 32) Albany Highway, Beckenham (the Property). The Property has an area of 1,932 m².
2. The Property is zoned Residential Development under the City of Gosnells Town Planning Scheme No. 6 (TPS 6) and is designated Residential R30 by the adopted Central Beckenham Precinct 1 Outline Development Plan [(ODP)].
Relevant approvals
3. By the end of January 2014, the construction of six grouped dwellings on the Property was completed, pursuant to the:
a) development approval issued by the City of Gosnells on 5 November 2012 (the Development Approval); and
b) building permit issued by the City of Gosnells on 13 December 2012 (the Building Permit).
4. Neither the Development Approval nor Building Permit refers to any requirement, or potential future requirement, to provide public open space, or cash in lieu of public open space.
5. Neither the Applicant nor its representatives recall the City discussing with them any requirement to provide public open space, or cash in lieu of public open space, during the course of the City's assessment of the development application which led to the Development Approval. The City has no records indicating that any such discussions took place.
The built strata application
6. On 6 March 2014, the Applicant (through its consultants) lodged with the City of Gosnells a completed Form 24, being an application under section 25 of the Strata Titles Act 1985 (the Built Strata Application).
7. The Built Strata Application sought subdivision approval of the Property in accordance with Strata Plan 67667.
8. Section 25 of the Strata Titles Act 1985 relevantly provides as follows:
25. Certificate of Commission
- (1) Subject to this section, every strata plan and every plan of re-subdivision or consolidation for a strata scheme lodged for registration under this Act shall be accompanied by a certificate of approval given by the Commission unless the proposed subdivision, re-subdivision or consolidation is exempt from the requirement of such a certificate by reason of regulations made under this section.
…
(3) An application for a certificate under this section shall be made to the Commission in the prescribed form and manner and, where a building is to be constructed or modified for the purposes of the strata scheme or a proposed strata scheme, the application shall be made prior to the construction or modification of the building unless the Commission otherwise agrees in a particular case.
(4) A certificate granted by the Commission under this section shall certify the approval of the Commission to the subdivision, re-subdivision or consolidation, as the case may be, and shall be in the prescribed form and in the case of an application made prior to construction or modification of a building proposed to be divided into lots under the scheme, the Commission may grant a certificate unconditionally or subject to such conditions as are specified in the certificate.
9. On 31 March 2014, the City of Gosnells, acting under delegation (DEL2009/03) from the Western Australian Planning Commission (the WAPC), informed the Applicant (by letter to its planning consultants) that it was prepared to agree to accept the Built Strata Application, subject to two conditions of that acceptance.
10. The first condition (including the associated advice note) was as follows:
'An area of land at least 10% in area, in a position to be agreed with the WAPC, being shown on the strata plan as a "Reserve for Recreation" and vested in the Crown under Section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown.
Advice Note: With regard to Condition 1, provisions of section 153 of the Planning and Development Act 2005 provide that arrangements can be made, subject to further approval of the WAPC, for a cash-in-lieu contribution by the landowner/applicant to the local government.'
11. This condition and the associated advice note is the subject of this review. The second condition on the acceptance is not relevant to the review.
Relevant policy and other documents
12. An extract from [WAPC] Planning Bulletin 52/2009, entitled 'Process for Seeking Approval Under the Strata Titles Act 1985 (and Planning and Development Act 2005) for Strata Titles and Delegation to Local Government of Built Strata Applications' is set out below:
'Under the existing legislative and policy framework, the WAPC is able to impose a variety of conditions on built strata applications. However, as a matter of practice, the only condition that the WAPC generally imposes is that the application must comply with the development approval and conditions imposed by the local government. This is because the WAPC usually receives a built strata application some time after the relevant local government has already determined the applications for development approval and granting of a building licence. In many circumstances, construction of the building has been completed before an application is received by WAPC.
The policy requirements regarding public open space for grouped/multiple dwelling development are usually considered at the structure planning or subdivision stage prior to a proposed development being built. In addition the local government at the time of considering the development application also takes the policy requirements into account.
Therefore, it is considered that for the majority of built strata applications, the requirement for WAPC consideration adds another layer of regulatory "red tape" which adds little value to the approval process.'
13. An extract from [WAPC] Planning Bulletin 110/2013, entitled 'Guidance on processing certain classes of Built Strata Title applications and WAPC delegation to local government', is set out below:
'In most instances, the processing of built strata applications should be straightforward and primarily relate to the consistency of the proposed built strata lots with the corresponding development and building permits. In some limited circumstances applications may be referred by the local government to another agency/service provider(s) due to servicing or other relevant planning considerations. An assessment (report) and recommendation should be prepared by the decision maker (WAPC/local government) taking into account relevant WAPC policies, local and region planning scheme provisions, comments from referral agencies and any other planning matter.
The decision maker (WAPC/local government) may certify the Form 24 with or without conditions, or refuse to endorse it. Any condition(s) imposed must be for planning purpose, fairly and reasonabl[y] relate to the development for which permission is given and should not repeat requirements already addressed through the relevant development application(s) and/or building permit(s). In general, non-standard conditions are discouraged, when the circumstance and requirements are adequately covered by model subdivision conditions included in the Model Subdivision Conditions.'
14. Clause 3.1.1 of the Western Australian Planning Commission's Policy No. DC 2.3 ('Public Open Space in Residential Areas') states as follows:
'The Commission's normal requirement in residential areas is that, where practicable, 10 percent of the gross subdivisible area be given up free of cost by the subdivider and vested in the Crown under the provisions of Section 20A of the Town Planning and Development Act 1928 (as amended) as a Reserve for Recreation. In determining the gross subdivisible area the Commission deducts any land which is surveyed for schools, major regional roads, public utility sites, municipal use sites, or, at its discretion, any other non-residential use site.'
15. Section 153 of the Planning and Development Act 2005 provides that a cash payment can be made by a subdivider in lieu of providing land for open space.
16. The adopted Central Beckenham Precinct 1 Outline Development Plan contains a series of ODP Notes, with note 2 stating as follows:
'All landowners within the ODP area be required to make a cash contribution toward POS of 10% to assist in the funding of a future open space acquisition in the Central Beckenham Housing Precinct, to the south of the railway line.'
Previous Tribunal decisions
6 The Tribunal has previously held that where the WAPC or its delegate has, in accordance with s 25(3) of the ST Act, 'otherwise agree[d]' to receive an application after a building or buildings were constructed for the purposes of the relevant strata plan, the WAPC or its delegate does not lose the power to impose a condition under s 25(4) of the ST Act: see Dalcorp Holdings Pty Ltd and Town of Victoria Park [2013] WASAT 138 (Dalcorp).
7 Neither party, as I understand it, seeks to challenge the correctness of that decision in these proceedings; both parties accept the characterisation here that the WAPC has 'otherwise agree[d]' and both parties are content to focus on the substantive issue of whether the proposed condition may, and if so should, be imposed.
Scope of power to impose conditions
8 The scope of a statutory power, in the local government context, to attach a regulatory condition is illustrated, for example, in Maraldi v City of Rockingham (2007) 55 SR (WA) 229; [2007] WASAT 225. There, at [31], the Tribunal said:
The relevant principles for discovering whether a particular condition is authorised by an enactment are well established. They were summarised by the [Commonwealth] Administrative Appeals Tribunal in Australian Goat Exporters Pty Ltd & Australian Meat & Livestock Corp, Re (1981) 4 ALD 258 at 264, a case dealing with the imposition of a condition on a licence, as follows:
'Whilst the discretion [to impose a condition] is undefined, it is neither arbitrary nor completely unlimited. Its proper limits are normally to be found within the subject matter and the scope and purpose of the Act (cf Water Conservation and IrrigationCommission (NSW) v Browning (1947) 74 CLR 492 at 505) unless an examination of the statute discloses that no general criteria can be inferred which will serve to limit the considerations to which the decision maker may have regard (cf Murphyores Incorporated Pty Ltd v Commonwealth of Australia (1976) 9 ALR 199 at 207 per Stephen J and at 215 per Mason J.'
9 The ST Act's relevant provision's subject matter, scope and purpose clearly extend to any relevant planning or land use purpose related to strata plans and their associated subdivisions. This is evident in, amongst other things, the decision maker being the WAPC and that any review is to be conducted under the PD Act. See also s 25(5) of the ST Act, making it clear that the 'planning' regulation of subdivision of land provisions otherwise applying under the PD Act (for example, s 135 and s 136 of the PD Act) do not apply to various forms of subdivision and transfers in relation to strata plans or strata schemes.
10 Further, the bifurcation evident in Western Australia planning law as between development control, which is generally assigned to local government, and subdivision control, which is generally assigned to the WAPC, is mirrored in s 24 and 25 of the ST Act. And, the practice of the WAPC already referred to in the agreed material set out above, reflects the framework just summarised. (See, for example, the references to the WAPC's Planning Bulletins referred to above.)
11 Thus, the power to attach conditions should be regarded as both extensive and comprehensive although confined to a relevant planning and land use context.
12 Within the scope and purposes so identified, the test for the imposition of a valid planning condition is discussed in Dalcorp at [27] to [29]. In particular, attention must be directed to the test for validity formulated by McHugh J in Western Australian Planning Commission v Temwood Holding Pty Ltd (2004) 221 CLR 30 (Temwood), at [57]:
1. The condition [must be] for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.
13 Temwood, it should be noted,upheld a broadly similar condition to that being sought to be imposed here, albeit in somewhat different circumstances.
14 These principles have been recently discussed in Carbone Bros Pty Ltd v the Shire of Harvey [2014] WASC 284 (Carbone). In that case, Jenkins J, at [43], cited, if not endorsed, this statement of principle taken from Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181, at [186]:
For a condition to be valid and efficacious, it must be shown to have some nexus with the subdivision ... The test is that the condition fairly and reasonably relates to the subdivision not that it springs directly from the needs produced by the development ... It is sufficient if the condition can be said to reasonably arise from the fact of the subdivision.
15 There can be no doubt that here the proposed condition furthers a valid and, for that matter, longstanding planning purpose, namely the provision by contribution of a suitable and reasonable amount of reserved public open space (POS) arising out of the amenity demands of residential development (including subdivision) in residential areas or its cash equivalent, to be applied generally speaking, for such purposes.
16 Such a contribution, as we have seen, was expressly foreshadowed on the Outline Development Plan (ODP) for the Central Beckenham Precinct: see Note 2 on the ODP, set out above. I have not, of course, overlooked the Zoning Certificate of November 2010 obtained by the applicant which also gave notice of the ODP as the framework for permitting subdivision at R30 density.
Rationale for such contributions
17 Stein has noted in his Principles of Planning Law (OUP, 2008) at 216:
A main use of development control is to obtain from the developer, by way of a condition, the cost of the upgrades to infrastructure that will be necessary as a result of the development.
- See also Stein at 222 citing (as did Jenkins J in Carbone, at [40]) Lloyd v Robinson (1962) 107 CLR 142on the 'quid pro quo' exchanged for the privilege flowing from subdivision approval. Stein cites Temwood as confirmatory of the 'exchange for approval' concept.
18 No developer in Western Australia acting with due diligence, especially one acting pursuant to or under this ODP, could or should be caught unawares of the quid pro quo sought of a 10% POS contribution, subject of course to modification on the merits in any particular case. I mention that here no case for variation on the merits has been suggested to date, nor has any suggestion been made that the 10% POS obligation has been otherwise met; rather the focus has been on the 'fairness' of attaching the condition at this (in effect) 'late' stage of approval in the development process.
19 Thus, the applicant contends that these 'unexpected and significant financial burdens on developers' are circumstances that disentitle the regulator from invoking the authority of s 25(4) of the ST Act so as to impose a contribution obligation. Alternatively, it is submitted that that burden does not reasonably and fairly relate to the subdivision approval.
Satisfaction of the Temwood tests
20 In my view, the first limb of the Temwood test is satisfied. That is to say, the condition has been imposed for a proper and valid planning purpose which finds clear expression in the planning framework. The desirability perhaps of imposing the obligation at some earlier point in the development process does not detract from satisfaction of this element of the Temwood test.
21 Turning immediately then, for convenience, to the third limb of the Temwood test, in my view no question of 'unreasonableness' can be said to arise. Here, 'unreasonable' is used in the Wednesburyadministrative law sense: see Stein, at 230.
22 I turn to the remaining and dominant issue in the review which is the application of the second limb of the Temwood test. This is whether there is sufficient nexus or connection between the contribution required which has been attached to the subdivision approval and the development. In short, the issue is: does the condition (that is, as it is expressed in substance in the condition under review) reasonably and fairly relate to the subdivision approval?
Public Open Space the nexus issue
23 At its simplest level, there is an obvious and direct nexus between the creation by a strata plan subdivision of the extra lots in the precinct and the additional residents that this will bring into the area and the consequent need, from a planner's perspective, for additional recreation infrastructure. This requirement is to be satisfied, as is usual in this State, through ceding POS or cash in lieu in exchange for the 'privilege' of subdivision. So much is wellestablished by a long series of cases in this Tribunal. See, for example, Williamson and Western Australian Planning Commission [2013] WASAT 185 at [39]; Tierney and Western Australian Planning Commission [2011] WASAT 153 (affirmed: Tierney and Western Australian Planning Commission [2011] WASAT 192) (Tierney) upholding the same obligation as here but on a survey strata of only seven lots.
24 However, the mechanism used here for the prosecution of this purpose ('An area of land at least 10% in area, in a position to be agreed with the WAPC, being shown on the strata plan as a "Reserve for Recreation" …') seems, on its face, and if read completely divorced of context or history, as either inappropriate or inapposite, as what is sought relates to the subdivision of land comprising only six grouped dwellings. The ODP note itself (that is, Note 2 in part, the main source of the POS obligation) talks in terms of 'all land owners' making 'a cash contribution towards POS of 10% to assist in the funding of a future open space acquisition …'. Any mechanism may, of course, be modified in the review.
25 That general position as regards POS is, however, as I have indicated, well established in Western Australia planning law and practice. Thus, Planning Bulletin 52/2009, referred to above, contemplates the POS policy requirement being dealt with either at the structure planning stage, or in a subdivision prior to further development, or as being dealt with at the time of the consideration of any development application. However, these cases mentioned in Planning Bulletin 52/2009 must be regarded as illustrative of any preferred practice. They do not amount to a rule of law.
26 Apart from the creation of the ODP note itself, none of these opportunities to deal with POS requirements were apparently taken advantage of here. Instead, the obligation was imposed, more or less at the 'final' stage, when strata plan subdivision approval was sought.
27 Of course, had the WAPC delegate's approval been sought by the applicant before construction of the grouped dwellings had taken place, then any practical problems (if any) for the developer might possibly have been ameliorated, as economic decisions may have been taken by the applicant in the light of this 'new' information. But this course was not taken here.
28 As Dalcorp suggests (at [23]), the scope of the power under s 25(4) of the ST Act to impose some conditions after building (as here) may be more limited than was the case before building. For example, a condition might be in doubt where it had a grossly disproportionate and adverse effect or impact after a building was completed, where it would not have that same effect before the building had been completed. However, these concerns do not apply in the circumstances of the case; the result in this review would have been the same whether the subdivision approval was sought before or after the building had been commenced.
29 In my view, the nexus requirement is not lost because of any possible 'defect' in form (if any) as to the imposition of the obligation to meet reasonable POS requirements applied equally on landowners and developers in the precinct. Nor is the nexus lost because of any departure from best practice (if any) in terms of the point at which the POS obligation is imposed. It is an obligation which must be fulfilled, even if the burden falls on the person who is the last in the line of subdividers and developers. And, even if the burden was 'unexpected' the wider public interest mandates that it must be met by some relevant party, even if it is the applicant seeking 'final' subdivision approval.
Conclusions
30 It does make sense for the ODP contribution (which is part of a wider policy position on POS) to have been dealt with earlier than the 'final' stage of the strata plan process. However that may be, the power to impose the condition is not in doubt, although its precise scope may be, at least in some cases (but not here), limited under s 25(4) of the ST Act. The condition's furtherance of a valid planning objective is also not in doubt, nor is the reasonable connection between the extra lots created and the need for either POS or a contribution to infrastructure for recreation purposes.
31 There is, in my view, no inherent unfairness in the particular circumstances of this case in collecting a 'late' contribution that was to be imposed equally (in its own terms) on all developers or landowners of which notice had been given in the planning framework itself, and then at more than one point in that process.
32 In the end, in my view, the review turns at most, as I have indicated, possibly upon the form of the condition and not its substance. But for Tierney (and longstanding practice), I might have held that such a condition may be imposed by the WAPC or its delegate at this 'final' stage of the development process but in a modified form that, for example, mirrors something more closely linked to, say, the obligation found in ODP Note 2.
33 However, I have come to the conclusion that for administrative consistency, Tierney ought to be followed and that the condition should remain in its current form. Furthermore, as Parry DCJ in Tierney and Western Australian Planning Commission [2011] WASAT 192 observed, there is a clear link between such a condition and the statutory mechanism (that is, s 153 of the PD Act) for its cash in lieu collection. His Honour said, at [23], (emphasis added):
In cases where the consent authority decides that 'the 10 per cent requirement' should not be departed from, but the size or location of the land make it inappropriate for the owner to, in fact, cede part of the land as open space, the imposition of a standard condition … is appropriate and necessary in order to facilitate a cash in lieu payment under s 153 of the PD Act.
Final orders
For these reasons the Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
4
12
2