Cockburn Cement Limited and Western Australian Planning Commission - [2014] WASAT 45

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: COCKBURN CEMENT LIMITED and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 45

MEMBER: MS L WARD (MEMBER)
MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)

HEARD: 26 AND 27 NOVEMBER 2013

DELIVERED : 10 APRIL 2014

FILE NO/S: DR 105 of 2013

BETWEEN: COCKBURN CEMENT LIMITED
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision application Hope ValleyWattleup Redevelopment Act 2005 (WA) Master Plan for 'redevelopment area' Creation of 13 'development areas' Structure Plan required for subdivision within a development area Latitude 32 District Structure Plan not a 'Structure Plan' as required by clause 6.2.4.1 of Master Plan Discretion to approve subdivision under clause 6.2.4.2 of Master Plan Prejudice to specific purposes and requirements of development area Uncertainties associated with subdivision application Weight attached to Latitude 32 District Structure Plan Local structure planning required before subdivision No local structure plan for Planning Area 3 Premature application Exercise of planning discretion

Legislation:

Hope Valley-Wattleup Redevelopment Act 2000 (WA), s 3, s 5, s 15(4), s 16, s 16(1), s 16(2), s 17, s 17(3)(d), s 22A, s 23, s 28(1)(a), s 28(1)(f), s 29, Pt 3
Interpretation Act 1984 (WA), s 56(2)
Planning and Development Act 2005 (WA), s 253(3)

Result:

Application dismissed

Summary of Tribunal's decision:

In 2012, Cockburn Cement Limited applied to subdivide part of one of its landholdings, Lot 0, into two lots. The subject land is 36 hectares in area and part of it is a quarry associated with Cockburn Cement Limited's cement works located north of Russell Road.
The application proposes the subdivision of Lot 0 to create two lots, 13.81 hectares (Lot 1) and 22.3 hectares (Lot 2) in area respectively. In 2013, the proposed subdivision was refused by the Western Australian Planning Commission. This is an application for review of the decision to refuse the subdivision.
The Hope Valley-Wattleup Redevelopment Act 2005 (WA) applies as the planning scheme for the 1,400 hectare 'redevelopment area', which includes Lot 0. A Master Plan is in place under the Hope Valley-Wattleup Redevelopment Act 2005 (WA). The Master Plan divides the redevelopment area into 13 'development areas'. The Master Plan sets out some of the requirements Cockburn Cement Limited must meet prior to subdivision in the development areas, including clause 6.2.4.1.
Clause 6.2.4.1 of the Master Plan requires, subject to an exception, a Structure Plan to be in place before a subdivision is approved.
The Tribunal found that in order for clause 6.2.4.1 of the Master Plan to apply, a Structure Plan for the development area is required. The Tribunal found that the Latitude 32 District Structure Plan deals with the whole of the redevelopment area rather than a particular development area under the Master Plan. Accordingly, the Latitude 32 District Structure Plan is not a Structure Plan as required by the Master Plan.
In the absence of a Structure Plan, clause 6.2.4.2 of the Master Plan applies to a subdivision application. The Tribunal was not satisfied that the subdivision application would 'not prejudice the specific purposes and requirements of the development area'. In the particular circumstances of this review, the Tribunal therefore found that the current application did not meet the test established by clause 6.2.4.2 of the Master Plan.
Accordingly, the application for review of the Western Australian Planning Commission's decision is dismissed.

Category: B

Representation:

Counsel:

Applicant: Mr A Lohman (Acting as Agent)
Respondent: Mr PD Spragg

Solicitors:

Applicant: Greg Rowe & Associates (Town Planners)
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162
Nicholls and Western Australian Planning Commission [2005] WASAT 40

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In 2012, Cockburn Cement Limited (applicant) applied to subdivide part of one of its landholdings into two lots. In 2013, the proposed subdivision was refused by the Western Australian Planning Commission (respondent or Commission). The application for review raises the issue of whether or not the proposed subdivision should be permitted under the relevant planning framework.

Decision under review

The applicant seeks a review of the Commission's reconsideration of its deemed refusal[P1] of an application for approval to subdivide No 214 (Lot 0) Rockingham Road, Henderson (subject land).
The applicant has a right of review pursuant to s 253(3) of the Planning and Development Act 2005 (WA) (PD Act) for review, as applied by s 29 of the Hope Valley‑Wattleup Redevelopment Act 2000 (WA).
On 30 May and 3 July 2013, the respondent reconsidered its deemed refusal and on both occasions affirmed its refusal for the following reasons:
1.   The proposed subdivision represents the unplanned fragmentation of land prior to the necessary structure planning and equitable infrastructure delivery mechanisms being in place and therefore approval would be contrary to the purposes and aims of the Hope Valley Wattleup Redevelopment Act 2000 and the Hope Valley Wattleup Redevelopment Project Master Plan to provide for the coordinated subdivision and development of the Act area.
2.   An approved structure plan and development contribution arrangements are not in place and therefore approval to the proposal would be contrary to clauses 6.2.4.1 and 6.3.5 and Schedule 11 of the Hope Valley Wattleup Redevelopment Project Master Plan.
3.   Approval to the proposed subdivision would create an undesirable precedent for the unplanned fragmentation of land within the Hope Valley Wattleup Redevelopment Act 2000 area which would have the potential to adversely impact on the orderly and proper planning and subdivision and development of the Act area.

Issues for determination

The following issues require determination by the Tribunal. In summary:
•Question 1 ‑ is the Latitude 32 District Structure Plan October 2011 a Structure Plan for the purpose of clause 6.2.4.1 of the Master Plan?
•Question 2 ‑ if the answer to question 1 is 'no', then is the Tribunal satisfied that the proposed subdivision 'will not prejudice the specific purpose and requirements of the development area' for the purpose of clause 6.2.4.2 of the Master Plan?
In the alternative, if the answer to question 1 is 'yes' and the Latitude 32 District Structure Plan October 2011 is a Structure Plan for the purpose of clause 6.2.4.1 of the Master Plan, the Tribunal must then consider the subdivision requirements within the Structure Plan and any other relevant planning provisions applying to the application the subject of this review.
The Tribunal will consider the issues for determination commencing at [61] below.

Position of the parties

In brief, the applicant contends that the Latitude 32 District Structure Plan October 2011 is a Structure Plan as defined under the Master Plan and that therefore the subdivision ought to[P2] be approved. The Commission disagrees and contends that clause 6.2.4.1 and Schedule 11 of the Master Plan require a Structure Plan for Development Area 10, which has not occurred. In any case, the Commission contends that the application for subdivision approval is premature in the absence of a local structure plan for Development Area 10 and given the number of planning uncertainties associated with the application.
Set out below are the facts relevant to the matter and which are not the subject of any dispute between the parties.

Subject land

Certificate of Title Volume 2198 Folio 853 on Diagram 17710 describes the subject land, which is 36 hectares in area and is located within the City of Cockburn approximately 24 kilometres south of the Perth Central Area. The applicant currently uses part of the[P3] subject land as a quarry associated with its cement works located north of Russell Road.

The proposal

The applicant proposes the subdivision of the subject land to create two lots, 13.81 hectares (Lot 1) and 22.3 hectares (Lot 2) in area respectively. Hurst Road is the access point for both Lots 1 and 2. Vehicle access to Lot 2 is via an easement over Lot 1.
The subdivision application proposes to align the boundary between the proposed lots with the northern boundary of the planned Resource Recovery Area. This configuration results in proposed Lot 1 being located entirely within the General Industry classification under the Structure Plan, and proposed Lot 2 of the subject land with four land use classifications, being: General Industry; Resource Recovery; Transport Industry; and Rail Reserve: Figure 6 of '1.6 Creating the structure plan' in the Latitude 32 District Structure Plan October 2011.

Hearing in the Tribunal

Both parties were represented throughout the proceedings in the Tribunal. The final hearing took place on 26 and 27 November 2013. Four qualified town planners gave concurrent expert evidence before the Tribunal. The applicant called as an expert witness town planner, Mr Greg Rowe, of Greg Rowe & Associates. The Commission called the following witnesses: Mr Frank Ness (Department of Planning's planner), Mr Christopher Ng (LandCorp's planner) and Mr Andrew Lefort (City of Cockburn's planner). The Tribunal accepted into evidence all of the documents provided by the parties (Exhibits 1 to 16).

Statutory planning framework

The planning framework relevant to the proposed subdivision of the subject land includes:
•Hope Valley‑Wattleup Redevelopment Act 2000 (WA) (HVWR Act);
•Hope Valley-Wattleup Redevelopment Project Master Plan (Master Plan);
•Proposed Amendment No 4 to the Hope Valley-Wattleup Redevelopment Project Master Plan – December 2010 (Amendment No 4);
•Latitude 32 District Structure Plan October 2011 (Latitude 32 Structure Plan); and
•State Planning Policy No 1 ‑ State Planning Framework (SPP 1).
The aspects of the above planning framework relevant to this application are set out below.

HVWR Act

The subject land is located in the 'Redevelopment Area' of the HVWR Act: see s 3 of Sch 1. The long title of the HVWR Act states that it is:
An Act to provide for the development and redevelopment of certain land in the local government districts of Cockburn and Kwinana, to confer planning, development control and other functions in respect of that land, and for related purposes.
The Commission is to prepare and keep under review the Master Plan for the Redevelopment Area in accordance with Pt 3 of the HVWR Act: s 5. The Master Plan is subsidiary legislation made under the HVWR Act and has legislative effect: s 22A. The HVWR Act repeals both local and regional planning schemes within the 'Redevelopment Area': s 23.

Master Plan

The Minister approved the Master Plan in December 2004: s 15(4) of the HVWR Act. The Master Plan was published in the Western Australian Government Gazette (Gazette) in March 2005: s 16(2) of the HVWR Act.
The 'Purposes of Master Plan' are set out in clause 1.6 and include:
•defining precincts within the Redevelopment Area of the purposes defined in the Master Plan (clause 1.6(c));
•controlling and guiding land use and development (clause 1.6(d)); and
•establishing procedures for the assessment and determination of planning applications (clause 1.6(e)).
The 'Aims of the Master Plan', are set out in clause 1.7 of the Master Plan, and include:
…
(e)distribute the cost of common infrastructure;
(f)ensure the development and use of land within the Redevelopment Area comply with accepted standards and practices; [and]
(g)ensure that future development and use of land within the Redevelopment Area occur in a proper and orderly way[.]
Pursuant to clause 4.1 of the Master Plan, the Redevelopment Area is divided into 14 precincts. The subject land is located within Precinct 10 'Russell Road Industrial': see Appendix 1 ‑ Master Plan Map dated 5 December 2003.
Pursuant to clause 4.2 of the Master Plan, 'The Objectives of the Precincts' are set out in the Planning Policies 2.1 to 2.14 in the Hope ValleyWattleup Redevelopment Project Master Plan Report (Master Plan Report). The Master Plan Report is dated 5 December 2003 and it is appended to Mr Ness' witness statement made on 2 September 2013 (Exhibit 14). Planning Policy 2.10 in the Master Plan Report is headed 'Precinct 10: Russell Road Industrial'. Planning Policy 2.10 in the Master Plan Report states that the precinct is 'identified as being ideal for general industrial development …'.
Clause 4.3 of the Master Plan is headed 'Development in precincts' and provides:
For the purposes of promoting the objectives of the Master Plan, and subject to any Master Plan provisions to the contrary, the Commission in considering an application for approval must have due regard to the purposes and aims of the Master Plan, the general provisions of the Master Plan and any applicable Structure Plan, Planning Policy or Design Guideline.
Part 6 of the Master Plan relates to special control areas. Clause 6.1.1 of the Master Plan refers to special control 'Development Areas' and 'Development Contribution Areas' which are referred to in Appendix 3 and Schedules 11 and 12 of the Master Plan.
The provisions applying to the special control areas apply in addition to the provisions applying to any underlying precinct or reserve and any general or specific provision of the Master Plan: clause 6.1.2.
The subject land is located in a special control area, namely:
Development Area X – Russell Road Industrial (DA X) and Development Contribution Area X – Russell Road Industrial (DCA X – Russell Road Industrial): Appendix 3 of the Master Plan.
The purposes of the development areas, as set out in clause 6.2.2.1 of the Master Plan, are to:
(a)Identify areas requiring comprehensive planning; and
(b)Coordinate subdivision and development in areas requiring comprehensive planning.
Schedule 11 to the Master Plan describes the purpose and requirements that apply to DA X, as required by clause 6.2.2.2 of the Master Plan, as follows:
i.An approved structure plan together with any amendments shall apply to the land in the precinct in order to guide subdivision and development as per the requirements of Part 6 of the Master Plan.
ii.The provisions of the Master Plan shall apply to land created under the structure plan.
iii.Design Guidelines may be prepared and adopted for any land as defined on the structure plan as per the requirements of Part 6 of the Master Plan. All development on such land is to have regard to the requirements of the Master Plan and the Design Guidelines. Where there is any inconsistency between the Design Guidelines and the Master Plan, the Master Plan shall prevail.
iv.No residential development will be approved in the precinct.
Clause 6.2.1 of the Master Plan states that a 'Structure Plan' means a Structure Plan that has come onto effect in accordance with clause 6.2.11.1 of the Master Plan. Clause 6.2.11.1 of the Master Plan states that a 'Structure Plan comes into effect on the day on which it is approved by the Commission under clause 6.2.9.1 or 6.2.9.3'. The approval of the Structure Plan may be subject to modifications. If the Commission is of the opinion that a modification to a proposed Structure Plan is 'substantial' then it may require readvertising: clause 6.2.9.2 of the Master Plan.
There is no express reference in the Master Plan requiring the Structure Plan to be either a district structure plan or a local structure plan. Rather, the Structure Plan must merely comply with the requirements of the Master Plan.
Clause 6.2.3.2 of the Master Plan requires that the subdivision and development of land within a development area is to generally be[P4] in accordance with any Structure Plan that applies to that land.
A Structure Plan may be prepared by the Authority, in this case LandCorp, or an owner of land in the development area: clauses 1.3.1.13 and 6.2.5.1 of the Master Plan. A Structure Plan may be for all or part of a development area: clause 6.2.5.2 of the Master Plan.
Importantly in this application, clause 6.2.4 of the Master Plan states:
Structure Plan required
6.2.4.1Except as stated in sub‑clause 6.2.4.2, the Commission shall not approve subdivision or development of land within a development area unless there is a Structure Plan for the development area or for the relevant part of the development area.
6.2.4.2The Commission may approve the subdivision or development of land within a development area prior to a structure plan coming into effect in relation to that land, if it is satisfied that this will not prejudice the specific purposes and requirements of the development area.
On 31 May 2013, the insertion of the word 'subdivision' into clauses 6.2.4.1 and 6.2.4.2 of the Master Plan was published in the Gazette. The amendments to clause 6.2.4 of the Master Plan occurred after the application for subdivision and before the reconsideration by the Commission on 3 July 2013. The amendments to clauses 6.2.4.1 and 6.2.4.2 make it clear that, subject to exception, a Structure Plan is required for a development area prior to subdivision (or development). The amendments to clauses 6.2.4.1 and 6.4.2.2 are consistent with the requirements of Schedule 11 to the Master Plan.
Clause 6.3.3 of the Master Plan requires a Development Contribution Plan for each Development Contribution Area. The purpose of having a Development Contribution Plan includes the 'equitable sharing of the costs of infrastructure' and to 'ensure that cost contributions [as defined in the Master Plan] are reasonably required as a result of the subdivision and development of land in the development contribution area': clause 6.3.2 of the Master Plan.
The Commission is not to approve development of land within a Development Contribution Area until a Development Contribution Plan is in effect, or the owner has made arrangements or consulted with the authority: clause 6.3.5 of the Master Plan. Clause 6.3.5 of the Master Plan applies to 'development' and not expressly to a subdivision. However, the guiding principles for Development Contribution Plans include a reference to subdivision: clause 6.3.6(a) of the Master Plan. Clause 6.3.13.2 of the Master Plan refers to subdivision in the context of when the owner's liability for cost contribution may arise.
The Commission, in considering an application for planning approval, is to have due regard to such matters which it considers relevant, as set out in clauses 11.2(a) to 11.2(zb) of the Master Plan.

Amendment No 4

Amendment No 4 to the Master Plan states that it has 'been initiated mainly to provide consistency between the Master Plan and the recommendations of the draft Latitude 32 District Structure Plan'.
Amendment No 4 comprises 10 separate changes to the Master Plan. Proposal 1 of Amendment No 4 is relevant to this application, as it proposes to amend the boundaries of Precinct 8 to reflect the future operational needs of the Henderson Waste Recovery Park. The City of Cockburn requested the modification to the Precinct 8 boundary in order to reconfigure the Henderson Waste Recovery Site, based 'on its future operational needs'. Proposal 1 of Amendment No 4 to the Master Plan significantly affects the boundaries and land use classifications of Precinct 10. The proposed amendments to the Master Plan were publicly notified, and submissions were invited through publication in the Western Australian Government Gazette on 18 May and 20 July 2010.
The Minister for Planning granted final approval to Amendment No 4 to the Master Plan on 28 June 2011 subject to modifications. The modifications are unrelated to, and do not affect, Proposal 1. Proposal 1 of Amendment No 4 to the Master Plan will result in the following:

•portions of proposed Lot 2 of the subject land will be located in Precinct 8 'Resource Recovery', Precinct 10 'Russell Road Industrial' and Precinct 7 'Northern Transport' and 'Rail Reserve';
•proposed Lot 1 of the subject land will remain unchanged by Amendment No 4 to the Master Plan and will be located wholly in Precinct 10 'Russell Road Industrial'; and
•Precinct 8 'Resource Recovery' will have two landowners, instead of one; namely, the City of Cockburn and the applicant.

Section 17 of the HVWR Act is headed 'Amendments to the Master Plan' and it states that '[a] master plan may be amended in accordance with this section'. In particular, s 17(3)(d) of the HVWR Act states that s 16 applies as if it referred to the amendment to a master plan. Section 16(1) of the HVWR Act requires that notice that the Minister has approved a master plan be published in the Gazette.
While the Tribunal accepts that the Minister approved Amendment No 4 to the Master Plan on 28 June 2011, the amendment is yet to be published in the Gazette, as the modifications have not been finalised. Accordingly, Amendment No 4 to the Master Plan is yet to come into operation: s 16 and s 17 of the HVWR Act.
The Tribunal attaches significant weight to Amendment No 4 due to it being a document approved by the Commission, subject only to the formality of publication in the Gazette. Accordingly, Amendment No 4 meets the tests set out in Nicholls and Western Australian Planning Commission [2005] WASAT 40 (Nicholls) at [45] and it is therefore a seriously‑entertained planning proposal to which significant weight is attached.

Latitude 32 Structure Plan

The Latitude 32 Industry zone covers more than 1,400 hectares: clause 1.1 of the Latitude 32 Structure Plan. Clause 1.2 of the Latitude 32 Structure Plan states that a district structure plan '… essentially provides a broad outline of how an area will be developed, to guide approval bodies when they consider future local structure planning, subdivision and development proposals …'. The Latitude 32 Structure Plan refers to the Redevelopment Area comprising 10 discrete 'Planning Areas': clause 6.1.
The main purpose of the Latitude 32 Structure Plan is to provide a framework which will enable the coordinated planning and delivery of key infrastructure and land use precincts within Latitude 31: clause 1.2. The Latitude 32 Structure Plan is an essential step in the long‑term planning for Latitude 32: clause 1.2.2.
The Latitude 32 Structure Plan comprises the Statutory Planning Section (Part 7) and the Explanatory Report Section (Parts 1 to 6): clause 7.1.2. Clause 7.1.5 of the Latitude 32 Structure Plan requires local structure plans across the development areas in the Master Plan prior to subdivision.
Clauses 1.2.2 and 7.3 of the Latitude 32 Structure Plan sets out the key objectives as:
•Ensure Latitude 32 maximises its potential as an employment centre and key component of the Western Trade Coast industrial area;
•Identify and prioritise the key works and infrastructure required to activate the development precincts within Latitude 32;
•Provide a framework to ensure development in Latitude 32 is conducive to surrounding land uses[;]
•Provide the framework to achieve best practice sustainability and environmental design innovation for industrial development within Latitude 32;
•Provide greater certainty for the long term planning and delivery of Latitude 32; and
•Put a plan in place that can be easily transferred to the Town of Kwinana and City of Cockburn as planning controls return to the local governments over time.
The Latitude 32 Structure Plan provides a framework which will enable the coordinated planning and delivery of key infrastructure and land use precincts within Latitude 32: clause 5.0.
The structure plan shown at Figure 6 of '1.6 Creating the structure plan' in the Latitude 32 Structure Plan shows the reconfiguration of the Henderson Waste Recovery Park (as depicted in Amendment No 4 to the Master Plan) extending northwards into the subject land. Clause 1.7.3 of the Latitude 32 Structure Plan sets out the rationale for Amendment No 4. Clause 5.2.1 of the Latitude 32 Structure Plan sets out the land use amendments under Amendment No 4: clause 5.2.1.
Currently, Lot 0 is designated General Industry, Resource Recovery Area, Transport Industry, and Rail Reserve in the Structure Plan. Figure 6 of the Latitude 32 Structure Plan also depicts a north‑south collector road within the subject land.

State Planning Policy No 1 ‑ State Planning Framework

State Planning Policy No 1 ‑ State Planning Framework (SPP 1) includes Statements of Planning Policy prepared by the Commission under the PD Act as well as regional strategies, regional and sub‑regional structure plans, strategic policies and operational policies.
The four operational policies referred by the parties in the proceedings include:
•Development Control Policy 1.1 Subdivision of Land General Principles (2004) (DC 1.1);
•Development Control Policy 4.1 Industrial Subdivision (1988) (DC 4.1);
•Development Control Policy 5.1 Regional Roads (Vehicular Access) (1988, updated 1998) (DC 5.1); and
•Guidelines for the Lifting of Urban Deferment (2000) (Guidelines for the Lifting of Urban Deferment).

DC 1.1

The clauses of DC 1.1 which are relevant to this application include, in summary:
•clause 3.4.1 ‑ there is presumption against 'superlot subdivision' of landholdings which are identified or zoned for future urban purposes;
•clause 3.4.2 ‑ a superlot subdivision may be supported where it is demonstrated that it will not be contrary to orderly and proper planning and where clauses 3.4.2(1) to 3.4.2(5) being met, including the arrangement for development contribution; and
•clause 3.4.3 ‑ one superlot may be permitted where arrangements regarding infrastructure have been established. The minimum size of superlots should be 20 hectares.
In the Tribunal's view, the presumption against the 'superlot' subdivision set out in DC 1.1 is of limited relevance to this application due to:
•the subject land not being zoned for future urban purposes;
•the subject landholding which is being subdivided being less than 150 hectares; and
•while the subdivision proposal involves only one lot that will be a 'superlot' ‑ namely, proposed Lot 2, which is 22.3 hectares ‑ no arrangements regarding infrastructure have been established.

DC 4.1

The clauses of DC 4.1 which are relevant to this application include clauses 1.1, 3.1.1, 3.1.2 and 3.5.1.
In the Tribunal's view, as discussed below, local structure planning is required prior to subdivision and accordingly the proposed subdivision is not consistent with DC 4.1.

DC 5.1

Clauses 2 and 3.1.1 of DC 5.1 are relevant to this application include clauses 2 and 3.1.1. The Tribunal notes that the proposed subdivision provides for vehicular access to both lots via Hurst Road (local road) rather than Rockingham Road (regional road). However, the granting of an easement over Lot 1 is sub‑optimal for those users requiring access to Lot 2 and is not a preferred planning outcome. Accordingly, the subdivision proposal is not consistent with DC 5.1.

Guidelines for the Lifting of Urban Deferment

Clause 3 of the Guidelines for the Lifting of Urban Deferment relevantly states:
There is a presumption against any subdivision … which will make the … provision of services … for urban development more costly and difficult.
The Guidelines for the Lifting of Urban Deferment apply only to land which is zoned Urban Deferred. The subject land is not zoned Urban Deferred. Therefore, the policy is not relevant to this application.
In conclusion, the Tribunal does not attach any weight to the above policies, as they are not applicable to the proposed subdivision application.

Consideration of the issues for determination

Issue 1: Is the Latitude 32 Structure Plan a 'Structure Plan' for the purpose of clause 6.2.4.1 of the Master Plan?

The Tribunal finds that the Latitude 32 Structure Plan is not a Structure Plan as defined in the Master Plan for the reasons set out below. Accordingly, the answer to issue 1 is 'no'.
The HVWR Act relates to the 1,400 hectares of land in the Redevelopment Area. The HVWR Act states that the Commission's decision as to a proposed development is to have regard to a number of factors, including any master plan in force under the HVWR Act and the requirements of orderly and proper planning: s 28(1)(a) and s 28(1)(f).
Where a Master Plan is in force under the HVWR Act, it has legislative effect: s 22A. Accordingly, the Tribunal is required to comply with the requirements under the Master Plan. As the Master Plan is an instrument made under a written law ‑ namely, the HVWR Act ‑ it is subsidiary legislation and a written law to which the Interpretation Act 1984 (WA) applies.
One of the requirements under the Master Plan is that the Commission shall not approve subdivision of land within a development area unless there is a Structure Plan for the development area or part thereof, subject to the exception in clause 6.2.4.2: clause.6.2.4.1. The use of the word 'shall' in clause 6.2.4.1 of the Master Plan means that the 'function so conferred must be performed': s 56(2) of the Interpretation Act 1984 (WA).
Schedule 11 to the Master Plan sets out the 13 development areas, which correspond to the precincts shown in Appendix 1 to the Master Plan, with the exception of Precinct 14 'Long Swamp'.
A 'Structure Plan' for the purpose of the Master Plan is as defined in the Master Plan in clause 6.2.1. The Tribunal notes that 'Structure Plan' using capital letters and 'structure plan' using lower case letters both appear in the Master Plan. However, clause 1.8.1 of the Master Plan indicates that it is the actual words which must be interpreted rather than whether or not those words are capitalised or not. Accordingly, the Tribunal considers that in the context of the Master Plan, unless the context requires otherwise, the words 'Structure Plan' in capital letters and 'structure plan' in lower case letters will be treated in a consistent manner.
The applicant contends that the Latitude 32 Structure Plan is a 'Structure Plan' for the purpose of the Master Plan because it was approved by the Commission's Statutory Planning Committee subject to certain modifications on 14 June 2011.
In contrast, the Commission contends that the Latitude 32 Structure Plan is not a 'Structure Plan' for the purpose of the Master Plan for two main reasons, namely:
•The Latitude 32 Structure Plan does not relate to a particular development area as required by clause 6.2.4.1 of the Master Plan. Rather, the Latitude 32 Structure Plan is for the whole of the Redevelopment Area, which comprises 13 development areas.
•The approval of the Latitude 32 Structure Plan by the Statutory Planning Committee on 14 June 2011 is subject to modifications. Accordingly, the Commission submits that the structure plan approval is conditional and that LandCorp intends to submit a revised version of it.
The Tribunal accepts that the Master Plan contains a number of indications that any Structure Plan is to relate to a particular 'development area' rather than the whole of the Redevelopment Area. These indications include:
•Clause 6.2.3.2 which states that, 'subdivision … within a development area is to generally be in accordance with any Structure Plan that applies to that land'. While not expressly stated in clause 6.2.3.2, it is implicit that the Structure Plan under the Master Plan will deal with 'a development area'. (Tribunal's emphasis)
•Clause 6.2.4.1 refers to, 'land within a development area unless there is a Structure Plan for the development area or the relevant part of the development area'. (Tribunal's emphasis)
•Clause 6.2.4.2 refers to 'the subdivision … of land within a development area prior to a structure plan coming into effect in relation to that land …'. (Tribunal's emphasis)
•Schedule 11 ‑ 'Development Areas' to the Master Plan states that in relation to each of the 13 precincts 'An approved structure plan together with any amendments shall apply to the land in the precinct in order to guide subdivision as per the requirements of Part 6 of the Master Plan' (Tribunal emphasis).
Accordingly, a plain reading of the Master Plan provisions means that a structure plan is required for each of the 13 development areas.
The Latitude 32 Structure Plan is for the whole of the Redevelopment Area. The Latitude 32 Structure Plan does not descend into sufficient particularity such that it could be considered a Structure Plan for[P5] the purpose of clause 6.2.4.1 of the Master Plan. A reading of the whole of the Master Plan, and bearing in mind the expressed desire to coordinate subdivision in the development areas (clause 6.2.2.1), and the provisions referred to above, all indicate that a Structure Plan is required in relation to each development area. Accordingly, the Tribunal finds that the Latitude 32 Structure Plan is not a Structure Plan for the purpose of clause 6.2.4 of the Master Plan.
Given the above finding, it is unnecessary for the Tribunal to make any finding in relation to whether or not the approval by the Commission of the Latitude 32 Structure Plan meets the requirements of the Master Plan for a Structure Plan. As the Tribunal has found that the Latitude 32 Structure Plan is not a Structure Plan for the purpose of clause 6.2.4.1 of the[P6] Master Plan, whether or not it was approved in accordance with the Master Plan is irrelevant. Although the fact the Commission has provided a form of approval to the Latitude 32 Structure Plan is relevant to the weight that the Tribunal may attach to it in terms of the considerations required under clause 6.2.4.2 of the Master Plan.
For the reasons given above, the Tribunal is not satisfied that the Latitude 32 Structure Plan is a Structure Plan for the purpose of clause 6.2.4.1 of the Master Plan.
However, the Master Plan does not require a Structure Plan for a development area in every case before the grant of subdivision approval. Under clause 6.2.4.2 of the Master Plan, discretion is expressly conferred on the Commission to recommend subdivision approval prior to a Structure Plan coming into effect in certain circumstances.
Accordingly, the Tribunal must now consider if it is satisfied that the proposed subdivision will not prejudice the specific purpose and requirements of the development area: clause 6.2.4.2 of the Master Plan.

Issue 2: Is the Tribunal satisfied that the proposed subdivision 'will not prejudice the specific purpose and requirements of the development area' for the purpose of clause 6.2.4.2 of the Master Plan?

The Tribunal is not satisfied that approval of the proposed subdivision in the absence of a Structure Plan 'will not prejudice the specific purpose and requirements of the development area' for the purpose of clause 6.2.4.2 of the Master Plan for the following two reasons, in summary:
•Firstly, a local structure plan is required for the relevant Planning Areas under the Latitude 32 Structure Plan and therefore the application for subdivision in Development Area 10 is premature.[P7]
•Secondly, the prejudice to future planning due to: the uncertainty in relation to road layout; increase in number of land uses in Lot 2; cost contributions; and the unplanned fragmentation of the subject land.
The Tribunal will elaborate on each of the above reasons below.

Firstly, a Local Structure Plan is required for the relevant Planning Areas under the Latitude 32 Structure Plan prior to subdivision

The Latitude 32 Structure Plan is consistent with the objectives of the Master Plan, although it was not created in accordance with it. The level of reliance that the Tribunal places on the Latitude 32 Structure Plan is dependent on its status. While the Latitude 32 Structure Plan is not a Structure Plan for the purpose of the Master Plan and does not have any legislative effect, nevertheless it is a planning document that is relevant to the Tribunal's considerations.
The respondent submitted to the Tribunal that the Latitude 32 Structure Plan is a higher order planning, or conceptual, document that provided the framework for further local structure planning. The Commission has granted a form of approval to the Latitude 32 Structure Plan by approving it subject to modification on 14 June 2011. The respondent in effect submitted that no further approval of the Latitude 32 Structure Plan was required or would be sought by it.
The applicant relied on the 'Coty principle', as applied by the Tribunal in Nicholls in support of its submission that the Latitude 32 Structure Plan is a seriously‑entertained planning proposal.
According to Mr Ng, the Latitude 32 Structure Plan is a higher order planning document which guides infrastructure in the whole of the Redevelopment Area rather than subdivision of land within a particular development or planning area. Mr Ng cites, as an example of further infrastructure planning which is required in the development area, the need for a detailed water management plan which is capable of guiding subdivision in the development area. Mr Ness' evidence is that the Latitude 32 Structure Plan has gone through a planning process and therefore has a level of approval.
While all of the witnesses agree that weight should attach to the Latitude 32 Structure Plan, they disagree on the amount of weight. Mr Ness's evidence is that some weight should be attached to the requirements of the Latitude 32 Structure Plan, whereas Mr Rowe's evidence is that significant weight ought to be given to the Latitude 32 Structure Plan on the basis that it is a seriously‑entertained planning proposal. For the reasons set out below, the Tribunal attaches significant weight to the Latitude 32 Structure Plan.
The Tribunal accepts that the Latitude 32 Structure Plan meets the tests set out in Nicholls at [45]. Therefore, the Tribunal attaches significant weight to the Latitude 32 Structure Plan, as it is a seriously‑entertained planning proposal.
The Latitude 32 Structure Plan has received approval from the Commission and no further approval is required. The Tribunal is not bound to apply the Latitude 32 Structure Plan as it does not have legislative effect. However, the Tribunal is able to attach significant weight to the Latitude 32 Structure Plan, as it is a credible, relevant and significant planning document.
The Tribunal attaches significant weight to the Latitude 32 Structure Plan due to the degree of consultation between the various government agencies and owners which led to its creation. In addition, Amendment No 4 to the Master Plan refers to the Latitude 32 Structure Plan throughout. The Commission relies on the Latitude 32 Structure Plan in support of the proposed Amendment No 4.
Further, the Latitude 32 Structure Plan itself refers to the need for local structure plans within the development areas. The importance of the requirement under the Latitude 32 Structure Plan for further detailed local structure planning is not that a local, rather than a district, structure plan is required; rather, the importance is that the Master Plan requires that any Structure Plan under clause 6.2.4.1 must relate to a particular development area. This view is consistent with Mr Ness' evidence that the Latitude 32 Structure Plan is a framework for further local structure planning. In Mr Ness' opinion, a subdivision application prior to local structure planning for the development area is premature.
The Latitude 32 Structure Plan refers to the requirement for local structure planning prior to subdivision in the development area. The Tribunal notes that this requirement is consistent with the general principle that the 'common and logical sequence in a Development Area for a local structure plan to be prepared, adopted and endorsed before a subdivision application is approved … and that it is generally inappropriate to grant subdivision approval of land without … a local structure plan': Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162 at [38].

The Tribunal finds that the reference in clause 6.4.1 of the Latitude 32 Structure Plan stating that '[n]ow that the … District Structure Plan [has] been approved by the WAPC' is not an approval under, or for the purposes of, clause 6.2.4.1 of the Master Plan. While the planner's report to the Commission does seek approval under the Master Plan, the resolution 'approving' the Latitude 32 Structure Plan does not refer to the Master Plan. Further, according to Mr Ness, the approval of the Latitude 32 Structure Plan by the Statutory Planning Committee occurred so that the document would acquire some form of formal status. Implicitly, Mr Ness does not envisage any requirement for any additional 'approval' of the Latitude 32 Structure Plan. The Tribunal accepts Mr Ness's evidence in this regard.
In the Tribunal's view, the above reference to clause 6.4.1 of the Latitude 32 Structure Plan and the 14 June 2011 approval cannot alter the character or status of the Latitude 32 Structure Plan. The Latitude 32 Structure Plan is a framework which requires further local structure planning for the individual planning areas, and it is not a Structure Plan for the purpose of clause 6.2.4 of the Master Plan.
The Latitude 32 Structure Plan provides a framework for further detailed planning to occur prior to any subdivision. For example, clause 6.1 'Planning Areas' of the Latitude 32 Structure Plan refers to the maps of the Planning Areas as describing the 'key constraints that will need to be addressed … at the local structure planning, subdivision and development stages'.
By way of example, in relation to Planning Area 1 'The Flinders Precinct', local structure planning has already occurred and subdivision has been approved by the Commission. Subsequently, development has also commenced in Planning Area 1: Latitude 32 Industry Zone Flinders Precinct Structure Plan and clause 6.1 under 'Planning Area 1' of Latitude 32 Structure Plan.
Clearly, the planning approach under the Master Plan and the Latitude 32 Structure Plan is that of comprehensive planning for each of the Planning Areas before granting approval of any subdivision application in a particular Planning Area. While Mr Ng indicated to the Tribunal that comprehensive local structure planning in Planning Area 3 has commenced, it has not been finalised.
These factors indicate to the Tribunal that the Latitude 32 Structure Plan is an important planning document which sets out what the Commission sees as the orderly and proper planning for the 10 Planning Areas set out in the Latitude 32 Structure Plan.
As the Tribunal attaches significant weight to the Latitude 32 Structure Plan, it will now consider and apply its relevant provisions.
Throughout the Latitude 32 Structure Plan, reference is made to the requirement for a local structure plan to be in existence prior to subdivision. These references include the following:
•Clause 6.4.1 'Local Structure Planning' of Latitude 32 Structure Plan refers to 'local structure plans will be required across the various precincts … The LSP will further refine the subdivision concept across the Planning Areas … and validate the local road network to support the future subdivision of these areas'. (Tribunal's emphasis)
•Clause 6.1.1 'Subdivision Concept' of the Latitude 32 Structure Plan refers to:
As part of the structure planning process, an overall subdivision concept plan [refer to Figure 42] has been prepared over the various planning areas …
These plans are conceptual only and have no statutory basis. Further detailed planning is required at the local structure plan and subdivision stages to confirm the suitability of the local road layout, marketability, lot configuration …
In developing the subdivision concept, emphasis has been placed on achieving the optimum lot design … and road layout …
…
As the needs and conditions of the industrial market evolve over time, so too will demand for certain lot sizes. It is … important that the design of future local structure plans and subdivisions enable a diversity of lot sizes.
•Clause 7.1.5 'Relationship with the Master Plan' of Latitude 32 Structure Plan relevantly states that:
The District Structure Plan is provided to guide and coordinate local structure plans across the development areas specified in the Master Plan. Local structure plans are required prior to subdivision or development approval being issued within the … redevelopment area.
Given the above references to a local structure plan for the development areas, the application for subdivision is not consistent with the Latitude 32 Structure Plan. A local structure plan which deals with the relevant Planning Area is not in existence. In particular, clause 7.1.5 is part of the statutory planning provisions of the Latitude 32 Structure Plan and the Tribunal attaches significant weight to the requirements for local structure planning prior to subdivision in the development areas.
The applicant submitted that the Latitude 32 Structure Plan was sufficient to meet the requirements under the relevant planning framework. However, the Tribunal finds that the Latitude 32 Structure Plan expressly indicates that more detailed planning in the form of local structure planning is required prior to subdivision.
The Tribunal finds that the Latitude 32 Structure Plan is not sufficiently detailed to enable the subdivision to proceed. Further, a landowner is able to initiate the structure planning process. However, the applicant has not done so in this case. The proposed subdivision is inconsistent with the planning objectives expressed in the Master Plan and the Latitude 32 Structure Plan; namely, the proper and coordinated planning of the development areas.

Secondly, the subdivision would prejudice future planning due to the uncertainty in relation to road layout, increase in number of land uses in Lot 2 and cost contributions, and would lead to the unplanned fragmentation of the subject land

In the absence of local structure plans, the approval of the subdivision application is likely to affect the ability to plan comprehensively the relevant Planning Areas as a whole prior to any subdivision.
In particular, the key actions in relation to Planning Area 3 under the Latitude 32 Structure Plan include, in summary:
•quarrying needs to finish before development can occur;
•further detailed planning for Russell Road, and Fremantle‑Rockingham Highway alignments and specifications to be finalised;
•infrastructure planning to be undertaken; and
•a Local Water Management Strategy to be prepared prior to local structure planning.
On the evidence before the Tribunal, the applicant and the relevant authorities are yet to address the above key actions. For example, there is no Local Water Management Strategy or local structure plan for Planning Area 3.
The infrastructure requirements for the relevant Planning Area are yet to be established and any subdivision could complicate the distribution of costs associated with common infrastructure. The levels of the subject land need to be considered in detail, especially given that the applicant uses the subject land as a quarry.

The issue of developer contributions is yet to be clarified and, in principle, the 'open cheque' developer contribution is not a preferred planning outcome. In addition, the nature, scope and purpose of the 'ecological link' are yet to be defined clearly: clause 5.4.3 of the Latitude 32 Structure Plan. The distribution of any costs associated with the ecological link is yet to be resolved.
Further, the proposed sale by the applicant to the City of Cockburn of part of the subject land appears to underlie the subdivision; however, there is no current sale agreement in place. The subdivision proposal also fragments the eastern portion of the subject land which makes the provision of effective access between it and the Henderson Waste Recovery Precinct problematic. Under the subdivision proposal, the fragmented eastern triangle of the subject land would be an issue in terms of its utility due to its shape, size and location.
Another uncertainty in relation to the subdivision proposal is the precise alignment and design of the north‑south road through the subject land and the design for the distributor road network. Clauses 5.5.1 and 6.3 of the Latitude 32 Structure Plan require that these aspects of the proposed subdivision be subject to further investigation and clarification prior to subdivision in the Planning Area.
The Tribunal finds that the application for subdivision of the subject land is premature and attendant with too many uncertainties. A local structure plan is required in the particular circumstances of this case. There is no doubt that a local structure plan is capable of addressing the uncertainties raised above in relation to the subdivision application. The subdivision proposal does not meet the objects of the HVWR Act and the Master Plan to provide for the coordinated subdivision and development of the redevelopment land.
Given the considerable uncertainties associated with the current subdivision proposal, the Tribunal finds that the exercise of the discretion under clause 6.2.4.2 of the Master Plan, in the absence of a Structure Plan, is likely in the circumstances of this case to prejudice the specific purposes and requirements of the development area.
Accordingly, the Tribunal is not satisfied that the proposed subdivision 'will not prejudice the specific purpose and requirements of the development area' for the purpose of clause 6.2.4.2 of the Master Plan.

Conclusion

The Tribunal is not satisfied that the requirements of clause 6.2.4 of the Master Plan are met. Therefore, the application for review of the Commission's decision is dismissed.

Orders

For the reasons given above, the Tribunal's orders are:
1.The application for review is dismissed.
2.The decision of the respondent to refuse the subdivision approval is affirmed.

I certify that this and the preceding [109] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L WARD, MEMBER

[P1]We need to be clear whether the review before the Tribunal is the deemed refusal or the reconsideration by the respondent. My understanding is that the matter under review would be the determination by the Commission on 3 July 2013.

[P2]“Can be” instead of “ought to be”?

[P3]Part of the land? See summary para 1 above

[P4]Cl 6.2.3.2 does say “generally”

[P5]Under the provisions of cl 4.2.4.1

[P6]I think it is important to maintain the focus on cl 6.2.4.1
One could argue for example the Master Plan could in another context constitute a Structure Plan. This is not however an issue the Tribunal needs to address

[P7]Have we not dispatched this issue above and it would not therefore form part of the current consideration?