DARLING DOWNS ESTATE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2016] WASAT 76
•24 JUNE 2016
DARLING DOWNS ESTATE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 76
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 76 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:47/2016 | 30 MAY AND 1 JUNE 2016 | |
| Coram: | MS D QUINLAN (MEMBER) MR R AFFLECK (SENIOR SESSIONAL MEMBER) | 24/06/16 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Respondent must endorse the deposited plan | ||
| B | |||
| PDF Version |
| Parties: | DARLING DOWNS ESTATE PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Staged subdivision Endorsement of deposited plan Whether conditions of subdivision are applicable to this stage Whether any planning considerations warrant refusal |
Legislation: | Planning and Development Act 2005 (WA), s 145, s 145(4)(b)(ii), s 145(6) |
Case References: | Cardwell Shire Council (1984) 58 ALJR 386; 53 ALR 632 Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305 Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65 LWP Property Group and City of Swan [2012] WASAT 129 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 |
Orders | 1. The application for review is allowed.,2. The deemed refusal dated 17 January 2016 is set aside.,3. The proceedings are listed for further directions at 9.00 am on 10 June 2016.,At the directions hearing on 10 June 2016, the Tribunal made the following final order:,1. By 5 pm on 14 June 2016, the respondent is to endorse Deposited Plan 406109 as examined by Landgate on 3 June 2016.,2. The parties have liberty to apply on 24 hours' notice to the other party. |
Summary | The applicant sought endorsement of the deposited plan for Stage 2 of the Darling Downs Estate in circumstances where compliance with a number of conditions of the subdivision approval had not been met. The subject conditions related to the upgrading of the adjacent Hilbert and Rowley Roads which included widening and intersection treatments, namely, a roundabout. ,The Tribunal found that, pursuant to s 145(4)(b)(ii) of the Planning and Development Act 2005 (WA), compliance with the subject conditions at this stage of the subdivision was not required. The Tribunal found that the subject conditions do not meet the threshold question of being relevant to Stage 2, or the whole of the subdivision, at this point in time. The Tribunal found that the roundabout design had not been finalised and that the applicant should not have to cede land that may ultimately not be required. ,The respondent failed to provide the Tribunal with evidence which satisfied the Tribunal that there are any relevant planning considerations which require these conditions to be complied with at this stage or point in time. The respondent's evidence was directed at strategic or regional planning aspirations and did not link this desire for progressing regional planning with a factual foundation to satisfy the Tribunal that there are planning considerations which are thwarted by endorsing the deposited plan for Stage 2. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DARLING DOWNS ESTATE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 76 MEMBER : MS D QUINLAN (MEMBER)
- MR R AFFLECK (SENIOR SESSIONAL MEMBER)
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Staged subdivision Endorsement of deposited plan Whether conditions of subdivision are applicable to this stage Whether any planning considerations warrant refusal
Legislation:
Planning and Development Act 2005 (WA), s 145, s 145(4)(b)(ii), s 145(6)
Result:
Respondent must endorse the deposited plan
Summary of Tribunal's decision:
The applicant sought endorsement of the deposited plan for Stage 2 of the Darling Downs Estate in circumstances where compliance with a number of conditions of the subdivision approval had not been met. The subject conditions related to the upgrading of the adjacent Hilbert and Rowley Roads which included widening and intersection treatments, namely, a roundabout.
The Tribunal found that, pursuant to s 145(4)(b)(ii) of the Planning and Development Act 2005 (WA),compliance with the subject conditions at this stage of the subdivision was not required. The Tribunal found that the subject conditions do not meet the threshold question of being relevant to Stage 2, or the whole of the subdivision, at this point in time. The Tribunal found that the roundabout design had not been finalised and that the applicant should not have to cede land that may ultimately not be required.
The respondent failed to provide the Tribunal with evidence which satisfied the Tribunal that there are any relevant planning considerations which require these conditions to be complied with at this stage or point in time. The respondent's evidence was directed at strategic or regional planning aspirations and did not link this desire for progressing regional planning with a factual foundation to satisfy the Tribunal that there are planning considerations which are thwarted by endorsing the deposited plan for Stage 2.
Category: B
Representation:
Counsel:
Applicant : Mr P McQueen
Respondent : Dr S Willey
Solicitors:
Applicant : Lavan Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Cardwell Shire Council (1984) 58 ALJR 386; 53 ALR 632
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305
Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65
LWP Property Group and City of Swan [2012] WASAT 129
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
Introduction
1 The Tribunal provided oral reasons for decision at the conclusion of the hearing on 1 June 2016. What follows is a formally revised and edited version of those reasons delivered orally on 1 June 2016.
Background facts and planning framework
2 The background facts in this matter and the applicable planning framework are largely agreed amongst the parties.
3 The Tribunal adopts and incorporates the following agreed paragraphs of the respondent's statement of issues, facts and contentions: paragraphs 1 to 24, 26 to 27 and 30 to 42.
Background to the application for review
1 On 26 April 2012 the Respondent granted conditional approval for the subdivision of (formerly) Lot 1 Hilbert Road and Lot 2 Hopkinson Road, Darling Downs. The approved subdivision was to create 137 residential lots, three public open space areas and subdivisional roads in accordance with a plan date-stamped 30 November 2011 (WAPC Ref: 145280). (Attachment I, pp 1 14, s24 Bundle)
2 The Applicant lodged an application for review against the imposition of a number of conditions (DR 147 of 2012). On 12 October 2012, pursuant to section 31 of the State Administrative Tribunal Act 2004, the Respondent reconsidered the conditions of approval. The approved plan of subdivision for the proposed development is subject to 45 conditions and supported by 16 advice notes ('relevant subdivision conditions') (Attachment 2, pp 15 24, s24 Bundle).
3 On 10 November 2014, the Respondent confirmed the Applicant's proposed modifications to the subdivision plan accorded with the approved plan of subdivision, and it would consider the modifications as part of a future application for endorsement of the deposited plan pursuant to section 145 of the Planning and Development Act 2005 (PD Act) ('approved plan of subdivision') (Attachment 26, pp 585 - 587, s24 Bundle).
4 On 30 June 2015 the Respondent endorsed Deposited Plan 404912 for Stage 1 of the subdivision of 45 lots comprising 43 new residential lots, 1 reserve for recreation and 1 balance lot ('Stage 1') (Attachment 3, pp 25 - 27, s24 Bundle).
5 On 16 December 2015 the Applicant applied to the Respondent for the endorsement of Deposited Plan 406109 for Stage 2 of the subdivision of 27 lots comprising 26 new residential lots and 1 balance lot ('Stage 2' and 'Subject Land') (Attachment 4, pp 28 30, s24 Bundle).
6 On 21 December 2015 the Applicant provided documents and correspondence associated with the request for endorsement of the Stage 2 Deposited Plan 406109. The supporting documentation included written evidence the relevant subdivision conditions had been complied with, save for conditions 9, 12, 14,15, 16, 17 and 18 ('subject conditions') (Attachment 31 and 32, pp 598 - 638, s24 Bundle).
7 On 18 January 2016 the Applicant served a written notice of default pursuant to section 253 of the PD Act advising that the 30 day decision period, as prescribed by section 145 of the PD Act had expired.
8 On 16 February 2016 the Applicant filed an application to the State Administrative Tribunal (Tribunal) seeking review pursuant to section 253(3) of the PD Act.
Description of the subject land and locality
9 Darling Downs Estate is in the suburb of Darling Downs within the Shire of Serpentine-Jarrahdale (Shire). Darling Downs Estate is a rectangular shape with a total area of 11.447 hectares, bounded by Hopkinson Road to the west, Hilbert Road to the east, Rowley Road South and Rowley Road North.
10 Stage 2 of the approved plan of subdivision is located in the eastern portion of Darling Downs Estate and comprises the Subject Land for the purpose of this statement (Attachment 13, p 273, s24 Bundle).
11 Rowley Road North, Hopkinson Road and Hilbert Road form the administrative boundary between Shire and the City of Armadale (City). Rowley Road North and Hilbert Road are within the City's local government area, and Hopkinson Road up to the Rowley Road North intersection is within the Shire (Attachment 18, p 556, s24 Bundle).
12 The adjacent land within the City is also within the Armadale Redevelopment Area, and is currently under the planning control of the Metropolitan Redevelopment Authority (MRA).
13 Hopkinson Road, Hilbert Road and Rowley Road South are constructed roads but will need upgrading as part of the urban development of this locality. Rowley Road North is an unconstructed road reserve (Attachment 19, p 557, s24 Bundle).
14 Darling Downs Estate land is predominantly surrounded by newly developing urban land. Land to the north of Rowley Road North, between Hilbert Road and Hopkinson Road, is owned and being developed by Peet Forrestdale Syndicate Ltd (Peet).
15 Land to the west of Hopkinson Road is owned and being developed by Peet Oakford Land Syndicate Ltd. A minor portion of adjacent land to the west is Unallocated Crown Land which accommodates the Birriga Main Drain.
16 On the land east of Hilbert Road, an existing dwelling and associated outbuildings are located contiguous with the Rowley Road North alignment, setback approximately 50 metres from Hilbert Road (at the closest point).
17 To the south, the land is broadly rural residential with a general lot size of 2 hectares. Immediately adjacent to Darling Downs Estate is 'Rowley Brook Village' an 'Over 55s Lifestyle Village' comprising 20 strata units.
Description of Approved Subdivision
18 A staging plan did not form part of the subdivision application and is not part of the approved plan of subdivision. However the Applicant has previously provided the Respondent with a working staging plan portioning the subdivision works into five stages. This has been adapted on (Attachment 13, p 273, s24 Bundle) to assist understanding the Applicant's staging intentions ('Staging Plan').
19 On the Applicant's Staging Plan (Attachment 13, p 273, s24 Bundle):
(a) Stage 1 accords with endorsed Deposited Plan 404912. Stage 1 is effectively complete: lots have sold, new titles issued, the subdivisional road intersection with Rowley Road South and associated road widening of Rowley Road South are constructed, and many dwellings are under development. The future connections of the subdivisional roads with Rowley Road North are held in temporary cul-de-sacs in Stage 1.
(b) Stage 2 accords with Deposited Plan 406109, and is almost complete: lots are ready and the internal subdivision road extension connecting Stage 2 to Stage 1 is constructed.
(c) Darling Downs Estate Stage 3 is Tribunal Application DR 56 of 2016 Darling Downs Estate Pty Ltd v WAPC (WAPC reference 152638), and comprises 32 new residential lots and 1 balance lot.
(d) Darling Downs Estate Stage 4 (part) is Tribunal Application DR 48 of 2016 Darling Downs Estate Pty Ltd v WAPC (WAPC reference 462-15), and comprises 10 new survey-strata residential lots.
(e) Darling Downs Stage 5 is Tribunal Application DR 49 of 2016 Darling Downs Estate Pty Ltd v WAPC (WAPC reference 151809), and comprises 36 new residential lots and 1 grouped housing lot.
20 Based on the approved plan of subdivision, the balance part of Stage 4 comprises 29 new residential lots and a 1.3 hectare public open space reserve. Relevantly, the remaining part of Stage 4 also includes all the subdivisional road connections with Rowley Road North. The approved plan of subdivision for the balance of Stage 4 expires on 26 April 2016. Furthermore, the Respondent advised the Applicant, by email on 20 July 2015, new subdivision application/s are required for this area as it is affected by the proposed amendments to the associated Structure Plan (refer to Paragraph 34 and Attachment 34, pp 642 - 912, s24 Bundle).
Endorsement of Deposited Plan and Form 1C Applications
21 Section 145(1) of the PD Act provides inter alia that a person to whom approval of a plan of subdivision has been given may submit to the WAPC 'in a prescribed manner and form' a diagram or plan of survey of the subdivision, and request the WAPC approve the diagram or plan of survey.
22 Regulation 23 of the Planning and Development Regulations 2009 (PD Regulations) requires a person to submit a request under section 145 of the PD Act in a 'form approved by the Commission', which is set out in a document known as a 'Form 1C' (Attachment 16, pp 278 279, s24 Bundle).
23 Form 1C conveys the application requirements, as approved by Regulation 23 for the purposes of section 145 of the PD Act, and states:
'Written advice or evidence that condition/s have been complied with from the relevant agency/ies, including supporting documents such as copies of covenants and notifications ...
... Where after reasonable endeavours it is not possible to obtain clearance for one or more conditions, the applicant may apply in writing to the WAPC for review. Are you seeking WAPC review?... yes or no.
If yes, please attachment statement of reasons and supporting documentation.'
(Version 7.2, in effect 15 December 2015, updated March 2016)
24 Section 145(4) of the PD Act provides that the WAPC is to endorse its approval on the diagram or plan of survey where it is satisfied the conditions have been complied with. Specifically, section 145(4)(b)(ii) states:
(4) Subject to subsection (6), if the Commission is satisfied that -
(a) the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and
(b) if that approval was given subject to conditions
(i) conditions have been complied with or will be complied with at the time a certificate of title is created or registered; or
(ii) in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage or subdivision or the subdivision as a whole, have been complied with or will be complied with at the time of certificate of title is created or registered,
the Commission is to endorse its approval on the diagram or plan of survey.
- …
26 The subject conditions relate to the roads that adjoin the Darling Downs Estate, as follows:
9. Arrangements being made to the satisfaction of the Western Australian Planning Commission for the construction of a 7.0 metre wide carriageway on the southern side of Rowley Road (North) where it abuts the application area. (Local Government)
12. Arrangements being made to the satisfaction of the Western Australian Planning Commission for the upgrading of Hilbert Road to accommodate a 7.0 metre wide carriageway where it abuts the application area. (Local Government)
14. Arrangements being made to the satisfaction of the Western Australian Planning Commission for the construction of intersection 7 treatments where the proposed internal subdivisional roads intersect with Rowley Road (North), Rowley Road (South) and Hopkinson Road, including the provision of turning and/or deceleration lanes. (Local Government)
15. Arrangements being made to the satisfaction of the Western Australian Planning Commission for the construction of a temporary intersection treatment at Rowley Road (North) and Hopkinson Road where it abuts the application area. (Local Government)
16. Land required for the ultimate intersection treatment at the intersection of Hilbert Road and Rowley Road (North) and the intersection of Hilbert Road and Rowley Road (South), where it abuts the application area, being provided by the applicant/owner transferring the land required to the Crown free of cost for the purpose of road widening. (Local Government)
17. Arrangements being made to the satisfaction of the Western Australian Planning Commission for the construction of a temporary intersection treatment at Rowley Road (North) and Hilbert Road where it abuts the application area, including channelisation. (Local Government)
18. Arrangements being made to the satisfaction of the Western Australian Planning Commission for the construction of a temporary intersection treatment at Rowley Road (South) and Hilbert Road where it abuts the application area, including channelization. (Local Government)
27 The associated advice notes to the subject conditions are as follows:
3. Condition 14 includes the provision for a slip lane or deceleration lane along the western boundary of the subject land to facilitate vehicle movements travelling from the intersection of Hopkinson Road and Rowley Road (North).
4. With regard to Condition 15, the applicant/owner is advised to liaise with the applicant/owner of the adjoining Lot 5071 Rowley Road (Peet Ltd) in respect of the construction of a temporary intersection of Rowley Road (North) and Hopkinson Road, to ensure a coordinated design of this intersection to accommodate a new traffic roundabout.
5. The design of Rowley Road (North), Hilbert Road and Hopkinson Road, including the associated intersection treatments shall be generally consistent with the Metropolitan Redevelopment Authority Rowley Road 15% Design Concept Layout Drawing No.612378803SK002 and Rowley Road Realignment Road Works and Drainage Plan Drawing No. 61-2378803-C401 (plans attached). However, the City advises that future roundabouts at these locations may be subject to change due to the positioning of the roundabout, the design dimensions of its radius and ultimate internal kerbing, and there could be potential minor variations to the land requirements as a result.
6. All roads shall be constructed and/or upgraded to an urban standard, including the provision of necessary drainage, kerbing, resealing and lighting.
…
Statutory Framework
Metropolitan Region Scheme
30 Darling Downs Estate is zoned 'Urban' under the Metropolitan Region Scheme (MRS).
Shire of Serpentine-Jarrahdale Town Planning Scheme No.2
31 The subject land is zoned 'Urban Development' and is noted as 'Development Area 4' under the Shire's Town Planning Scheme No 2 (TPS 2). (Attachment 17, pp 280 - 555, s24 Bundle)
32 To the south, land is within the Shire, and is zoned 'Rural' and 'Special Rural' under TPS No. 2.
33 In accordance with TPS2 2 [sic] requirements for a Structure Plan prior to development in the Urban Development zone, the 'Lots 1 & 2 Rowley Road, Darling Downs' Structure Plan has been prepared and was originally approved by the Respondent in March 2012.
34 The Structure Plan is subject to current draft amendments to provide additional land for drainage in the public open space area in the south western portion of the estate within Stage 4 arising from the Urban Water Management Plan. There are also proposed density changes. The Structure Plan amendments were recently advertised, submissions closed 5 March 2016 (Attachment 34, pp 642 - 912, s24 Bundle).
Wungong Urban Water Redevelopment Scheme area
35 As stated earlier, the subject land is within the Shire, however adjacent land to the east, north and west, including Rowley Road North and Hilbert Road are within the Wungong Urban Water Redevelopment Scheme 2007 (WUW-RS) area, The WUW-RS was prepared by the then Armadale Redevelopment Authority (now MRA). (Attachment 9, pp l75 267, s24 Bundle)
36 The WUW-RS Scheme Map: Wungong Urban Water Master Plan (WUW-MP) codes the adjacent land for 'urban' and 'suburban' purposes (Attachment 10, pp 268 - 269, s24 Bundle).
37 Rowley Road North and Hilbert Road are noted as 'Road Avenue' on the WUW-MP Map. Appendix 1 of the WUW-RS contains a description of Master Plan Elements, which includes:
'(1) Road Avenue (road with avenues of trees)
Road avenues are defined by long lines of trees defining either public open space or major roads, occurring approximately every 400m across the Scheme area. The avenues are aligned either cardinally or inter-cardinally in accordance with the dominant cadastral boundaries and infrastructure. The road avenues include on street parking, cycle ways and pedestrian pathways and high quality landscaping, and stormwater is directed to porous surfaces surrounding street trees. They may accommodate public transport routes.'
39 Adjacent land to the east is in 'Structure Plan IB' Area. Structure Plan IB notes Rowley Road North and Hilbert Road as 'District Entry Road (30.0m Wide Reserve)'. (Attachment 6, p 37, s24 Bundle).
40 A Developer Contribution Scheme (DCS) has been prepared and adopted by the MRA under the WUW-RS. The relevant plans in the DSC include:
a) Infrastructure, Drawing No. 61-1561507-S101 (Appendix A).
Item 1.4.1.4 Rowley Road Upgrade Item 1.5.4 Traffic Lights - Rowley Road/Hopkinson Road
Item 1.5.8 Roundabout - Rowley Road/Hilbert Road North
Item 1.5.9 Roundabout - Rowley Road/Hilbert Road South
b) Rowley Road and Hilbert Road Interim Roundabout Details, Drawing No. 61-1561507-SK5 (Appendix B).
c) Rowley Road and Hilbert Road Ultimate Roundabout Details, Drawing No. 61-1561507-SK6 (Appendix B).
d) Rowley Road and Hopkinson Road Ultimate Intersection, Drawing No. 61-1561507-SK7 (Appendix B).
e) Typical Sections, Drawing No. 61-1561570-SIC08 (Appendix B).
• District Entry Road 'A' - VPD +15,000: 33.0 metres
• Road Avenue 'A' - VPD 3,000 - 7,000:24.1 metres
f) Functional Road Hierarchy Plan.
• Rowley Road North and Hilbert Road identified as 'District Entry Road 'A''
• Hopkinson Road identified as 'Road Avenue 'A''.
(Attachment 7, pp 38 - 161, s24 Bundle)
41 The Movement Network Policy has been prepared and adopted by the MRA to facilitate the movement network in the WUW-MP. The Movement Network Policy includes a Road Hierarchy Map which identifies Rowley Road North and Hilbert Road as 'District Entry Road 'A". Hopkinson Road is identified as 'Road Avenue 'A".
42 The Movement Network Policy identifies the respective design and performance criteria and cross-section diagram for roads in the hierarchy, including inter alia District Entry Roads have a 33 metre horizontal cross-section width and Road Avenue 'A' have a 24.1 metre horizontal cross-section width. (Attachment 8, pp 162170, s24 Bundle).
4 Also, in relation to paragraph 28, we note that the applicant was not the owner of the subject land at that time.
Planning and Development Act
5 In particular, as to the planning framework and the legislative framework, the Tribunal notes s 145 of the Planning and Development Act 2005 (WA) (PD Act) and, in particular, we refer to s 145(4)(b)(ii):
Subject to subsection (6), if the commission is satisfied that
…
(b) if that the approval was given subject to conditions
(i) …
(ii) in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of the subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,
the Commission is to endorse its approval on the diagram or plan of survey.
6 Section 145(4) is subject to subsection (6) which provides:
If, in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the Commission is of the opinion that, because of planning considerations, it is not appropriate to approve the diagram or plan of survey, the Commission may refuse to endorse its approval on the diagram or plan of survey.
7 In relation to the subject site, the Tribunal refers to the witness statement of Ms Lindsay Baxter at paragraphs 9 to 12.
8 The subject site is the Darlings Downs Estate which is an 11.447 hectare area of land bounded by Hopkinson Road to the West, Hilbert Road to the east, Rowley Road South and Rowley Road North. Hopkinson Road, Hilbert Road and Rowley Road South are constructed roads but will need upgrading as part of the urban development of this locality. Rowley Road North is an unconstructed road reserve. Rowley Road North and Hilbert road are classified as 'District Entry Roads', each requiring a 30 metre road reserve.
9 The application to subdivide the subject site into 137 lots was conditionally approved by the commission on 26 April 2012. A reconsideration of the conditions was agreed by consent in Tribunal matter DR 147 of 2012 on 12 October 2012. The application for endorsement of Deposited Plan 406109 was received by the Commission on 21 December 2015 (Deposited Plan). This application included written evidence that the subdivision conditions had been complied with, save for conditions 9, 12, 14, 15, 16, 17 and 18 (subject conditions). The Tribunal notes that condition 8 has also been included within the definition of subject conditions.
10 All of these subject conditions relate to the upgrading of the adjacent Hilbert and Rowley Roads which included widening and intersection treatments and, in particular, a roundabout.
Issues for determination
11 The Tribunal is determining a preliminary or threshold issue here as to whether, subject to any planning considerations, compliance with the subject conditions is relevant to Stage 2 of the subdivision.
12 If the Tribunal answers that question, that the subject conditions are not relevant at Stage 2 and there are no planning considerations which warrant refusal to endorse the Deposited Plan, then the Deposited Plan should be endorsed without delay. If the Tribunal answers that either Stage 2 is relevant to the subject conditions and/or that there are planning considerations which may warrant refusal to endorse the Deposited Plan, then Issue 2 needs to be determined as to what constitutes compliance with the subject conditions. Issue 2 is not being determined in these reasons.
Applicant's submissions
13 The applicant submits that the subject conditions all relate to roads which have no impact on and are not required in order to appropriately service the lots in Stage 2. All lots the subject of Stage 2 have adequate access to the wider road network via Stage 1 of the Darling Downs Estate being Rowley Road South. The applicant submits that the road infrastructure the subject of the subject conditions do not relate or have a nexus with Stage 2.
14 The applicant submits further that the specification, widening and costing of those roads are, accordingly, irrelevant to the endorsement of the Deposited Plan for Stage 2 and are more appropriately considered in later stages of the development of the Darling Downs Estate. The immediate endorsement of the Deposited Plan for Stage 2 does not in any way compromise the ability for any of the surrounding road infrastructure to be developed in an efficient, functional and safe manner.
15 In closing submissions, the applicant further submitted in relation to planning considerations that endorsing the Deposited Plan for Stage 2 does not in any way stand in the way of the respondent's regional planning aspirations for the surrounding area. There are further applications in the system, indeed in the Tribunal under review, for Stages 3, 4 and 5. Further, the applicant submits that there are a number of mechanisms or cures, if you like, to the respondent's concerns that are not in any way denied by endorsing Stage 2 at this point in time.
Respondent's submissions
16 The respondent submits that the purpose of the subject conditions is to ensure the regional and local road network which the Darling Downs Estate will connect to, and form part of, is able to be developed in an efficient, functional and safe manner. Further, the satisfaction of these conditions at Stage 2, having regard to the planned and ongoing development of this region for urban and related purposes, is consistent with orderly and proper planning. The respondent submits that, as the subject conditions relate to perimeter roads to the subdivision, they are relevant to the subdivision as a whole and should be complied with now.
17 The respondent further submits that there are planning considerations which warrant refusal to endorse the Deposited Plan. In closing submissions, the respondent submitted that Stages 1 and 2 comprise 69 lots of a total 137 lots on the original subdivision approval. Therefore, 50% of the lots would potentially be completed without satisfying the conditions for the perimeter roads and the respondent referred to the Tribunal's phrase, 'tipping point', and that it had been reached. However, it is noted that any conclusion as to whether a 'tipping point' has been reached needs to be supported by evidence.
Legal authorities
18 The applicant referred the Tribunal to both the decision of the High Court in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, in particular [152], [155] and [156] as follows:
[In the decision of Cardwell Shire Council v King Ranch Australia Pty Ltd]… [t]he imposition of the condition there was governed by a Queensland enactment that expressly stated that a condition could not be imposed unless it was reasonably required by the subdivision of the land. I do not take this statutory test to be different from the test that should be applied to a subdivision under the TP Act.
19 In this regard, his Honour Justice Callinan goes on to quote from Cardwell Shire Council(1984) 58 ALJR 386 at 388; 53 ALR 632 at 635:
The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. …
20 Callinan J then refers to Newbury District Council v Secretary of State for the Environment [1981] AC 578, and notes that:
… [T]he condition must fairly and reasonably relate to the proposed development, it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case.
(Original emphasis)
21 The applicant also referred the Tribunal to the decision of his Honour Judge Sharp and Member Patric De Villiers in LWP Property Group and City of Swan [2012] WASAT 129 (LWP Property Group) which again cites the relevant test at [58] and the application of the test in that case at [64], [67], [68] and [72].
22 In particular, the Tribunal refers to LWP Property Group at [72] which relied on the reasoning in Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305 (citing a passage from Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181):
A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision. The requirement that a condition reasonably relates to the subdivision does not, therefore, allow the Commission or the local authority to use the subdivision or development as a trigger for a future need that does not arise, in part, from the project. There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval …
For a condition to be valid and efficacious it must be shown to have some nexus with the subdivision. There is no requirement that there be exact proof that the condition directly matches the extent of changes that the subdivision will produce. 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. This may, in appropriate circumstances, allow an authority to impose a condition which also benefits the public or which primarily is for a generalised community need. The essential test is that there also be a nexus with the fact of subdivision.
23 There have been submissions made to the Tribunal as to whether it is appropriate to apply the Newbury test to this particular proceeding under s 145 of the PD Act. It is the Tribunal's view that the Newbury test does not strictly apply to this exercise in the sense that we are not revisiting the correctness of the imposition of the conditions across the whole original subdivision approval. However, the Tribunal considers that the Newbury test does inform the exercise required here under s 145 of the PD Act of what needs to be considered as to whether the subject conditions are relevant to this stage of the Darling Downs Estate, being Stage 1 is completed and Stage 2 is seeking approval, and whether there are any planning considerations that warrant refusal to endorse the Deposited Plan. Having said that, part of this exercise is to consider the correctness of the imposition of those conditions at this stage of the subdivision.
Evidence
24 Both parties have provided a statement of issues, facts and contentions as well as witness statements, and there is also a bundle of documents provided by the respondent. Some witnesses relevant to this first issue gave oral evidence and were cross-examined. The Tribunal has considered all of the evidence provided and notes the following evidence, in particular, relevant to these reasons for decision.
Assessing expert evidence
25 As far as consideration of expert witness evidence, I refer to the decision of the Tribunal in Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65 (Lombardi) and, in particular, [40] [45] of that decision.
26 We note two quotes from Lombardi, at [43], the often quoted Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 where Huttley J said:
The choice between conflicting experts may have to be a matter of judgment and not of detailed reasoning.
27 We also refer, at [45], where the Tribunal in Lombardi refers to the Australian Law Reform Commission's Background Paper 6 - Experts (1999), which suggests that:
Expert opinion evidence is needed to enable decision-makers to understand evidence before them and to make their decisions about disputed facts. Judges and tribunal members need to be able to understand the expert evidence and be confident about relying upon it. Decisionmakers need to look for touchstones of reliability, the indicia being impartiality, pertinent prior experience, a disinclination by the expert to step beyond their limits of expertise, and familiarity with the facts. In short, the decision[-]maker needs to feel secure that the application of expert opinion to the facts in dispute is truly fair and reasonable.
(Original emphasis)
The applicant's witnesses
28 The applicant presented expert evidence from Mr Justin Page, town planner, and Mr Behnam Bordbar, a civil engineer with expertise in transport planning, both of whom were cross-examined.
29 Mr Page's evidence in his witness statement was that Stage 2 forms a logical extension of Stage 1 via Appaloosa Avenue and Rowley Road South and can be subdivided independently from the need to construct and/or upgrade Rowley Road North and Hilbert Road. Mr Page also stated that the subject conditions as they relate to Hilbert Road and Rowley Road North, have no direct bearing on Stage 2; that is, according to Mr Page, there is no established need and nexus between Stage 2 and the above roads. Therefore, it is the view of Mr Page that the subject conditions should not preclude or limit the WAPC granting final approval to Stage 2 (see paragraphs 5.1 to 5.2 of the witness statement of Mr Page).
30 Mr Bordbar's evidence in his witness statement is that the subject condition has no relevance to the clearance of Stage 2 and, as such, there is no need for the applicant to satisfy these conditions. Mr Bordbar's view was that Rowley Road North and Hilbert Road, abutting Darling Downs Estate, will ultimately only need to be constructed to 'Road Avenue A Divided Standard' (two lanes divided standard). This standard, including all paths and turn lanes, can be accommodated within the 30 metre reserve for these roads. In relation to the roundabout intersections of Rowley Road North/Hilbert Road and Rowley Road South/Hilbert Road, Mr Bordbar's view was that it will only need to be constructed to single lane standard and therefore there will not be any requirement for additional road widening at these two roundabouts: see paragraphs 7.1 to 7.3 of the witness statement of Mr Bordbar.
The respondent's witnesses
31 The respondent presented expert evidence from Ms Lindsay Baxter, a town planner holding the position of Planning Director, Metropolitan South in the Department of Planning. The respondent presented two experts in relation to transport planning: Mr Douglas Martin, a senior subdivision engineer employed by the City of Armadale, and Mr Emmerson Richardson, a senior executive transport planner from the firm Jacobs.
32 Ms Baxter's opinion as expressed in her witness statement, was that in her experience the Commission usually determines that all subdivision conditions apply at Stage 1, and it is only by exception that the Commission determines one or more conditions do not apply to that initial stage. Ms Baxter's concluding opinion in her statement was expressed as follows:
33. In my opinion, the subject conditions relate to each stage of the subdivision of the Darling Downs Estate and cannot be attributed to a particular stage. The Applicant did not have to satisfy the subject conditions for the first stage Deposited Plan. This fact escalates the importance of ensuring the subject conditions are addressed prior to the release of any further lots of a subdivision.
34. The applicant has not provided any evidence of compliance with conditions 9, 12, 14, 15, 16, 17, and 18 of the approval to the subdivision of the land issued on 26 April 2012. Section 145(4)(b)(ii) of the Planning and Development Act 2005 permits the Commission to endorse or a diagram or plan of survey for [a] stage of a subdivision where, in its opinion, conditions have been complied with or will be complied with at the time a Certificate of Title is issued. This discretion is conferred on the Commission, not the Applicant.
35. The dispute about the subject conditions has already been protracted, and if deferral of satisfying the subject conditions to later stages was allowed, the dispute is likely to continue. The potential outcome is that the Applicant would abrogate its responsibilities by continuing to argue the conditions do not apply to any particular stage, until the Darling Downs Estate is complete, which is not acceptable to the Commission in terms of orderly and proper planning.
36. Conditions 9, 12, 14, 15, 16, 17 and 18 are fair, reasonable and relevant to the approved subdivision and were accepted by the then applicant during Tribunal proceedings DR 147 of 2012. The current landowner and project manager have had sufficient time to determine how to comply with the conditions having regard to published documents, for example, the Wungong Urban Water, Movement Network Policy) and during liaison with the relevant local government and the Metropolitan Redevelopment Authority.
33 The respondent has also called evidence from Mr Craig Sanford, a project manager at the Metropolitan Redevelopment Authority (MRA). He did not provide expert evidence in the traditional sense. He provided factual evidence underpinning the respondent's primary submission that there are planning considerations which warrant refusal to endorse the Deposited Plan. His evidence relates to the proposed road widening to accommodate service utilities for current and future development in Wungong, which includes the Darling Downs Estate. It appears to the Tribunal that some of the Darling Downs Estate is just outside of the structure plan area.
34 Mr Sanford's evidence in the conclusion to his witness statement was that:
45. Darling Downs Local Structure Plan identifies road widening of 5 metres for Hilbert Road and Rowley [Road] along with truncations for intersection treatments.
46. The WAPC 145280 subdivision approval identifies road widening of 5 metres for Hilbert Road and Rowley Road along with truncations for intersections treatments.
47. The MRA has engaged with Darling Downs Estate early in the subdivision development process in order to clarify the impact of intersection treatment design.
48. Darling Downs Estate has not provided design evidence to allow the MRA to reconsider the alignment and localised widening for road and intersection treatment.
49. Darling Downs Estate has not made a genuine effort to resolve the road design technical issues which would satisfy land requirements and has deferred design and ceding of land to separate, future and unscheduled stages of development.
50. Because Darling Downs Estate refuses to satisfy the subject conditions, the MRA is currently unable to provide strategic planning for State service providers for the provision of essential trunk services. This affects developers which are reliant upon road reserves for the connection to essential trunk services.
51. Darling Downs Estate should satisfy the subject conditions as part of Stage 2.
Findings
35 The Tribunal notes that, when referring to s 145(4)(b)(ii) of the PD Act, in paragraph 35 of Ms Baxter's witness statement, 'if relevant' was not included by Ms Baxter. Ms Baxter states that the Commission usually requires compliance with all of the conditions at Stage 1. However, this does not mean this is the correct approach, particularly when regard is had to s 145(4)(b)(ii) of the PD Act where relevance to the particular stage, or the subdivision as a whole at that stage in the subdivision, is a threshold question to be determined.
36 In contrast to Mr Martin and Mr Sanford, Ms Baxter does provide some reasoning for her opinion that the subject conditions relate to Stage 2 and should be complied with as part of Stage 2. However, this reasoning of Ms Baxter really only amounts to a statement that this is how it should be done and that is how the respondent wishes it to be done.
37 Ms Baxter's views in this regard can be summed up in the question put to her in cross-examination: that there is a clear difference in planning in achieving something that is desirable and achieving something that is necessary. And by 'necessary', the Tribunal understands that to be what can be required at this stage under s 145 of the PD Act. The Tribunal finds that Ms Baxter's reasoning for the relevance of the subject conditions at this stage were neither compelling nor persuasive.
38 Mr Martin's concluding opinion (at paragraphs 28 to 31 of his witness statement) appear to miss the point of the issue to be determined. There is no mention of relevance to Stage 2 in his conclusion. His evidence is more akin to the requirements for the subject conditions, not the timing of when complied with relevant to Stage 2 or the subdivision as a whole at this point in time.
39 Mr Sandford stated there that the applicant should satisfy the subject conditions as part of Stage 2 without providing sufficient, if any, explanation as to why the subject conditions are relevant to Stage 2. His evidence did not provide sufficient explanation of the planning considerations which the Tribunal should take into account in determining to refuse to endorse the Deposited Plan.
40 Both Mr Page and Mr Bordbar provide detailed and sound reasoning in their evidence as to why the subject conditions are not needed to be fulfilled at Stage 2, whereas Mr Martin and Mr Sanford provide either insufficient reasoning or no reasoning at all.
41 Mr Sanford was asked directly about the need for these conditions to be complied with at Stage 2 and his answers were less than direct, not entirely satisfactory and often without any reasoning. He was neither clear nor cogent in his evidence concerning the need for land to be ceded so that planning and design for the services to be put in Rowley Road North and Hilbert Road could be done now.
42 Whilst the Tribunal does not consider that Mr Sanford was a witness who lacked credibility across all of his evidence, the Tribunal does not accept his evidence in relation to the need for compliance with the subject conditions at this stage. In this regard, many of his answers were vague, unsatisfactory and self-serving.
43 By way of example of a self-serving statement, he stated orally (notably this was not included in his witness statement) that another development was being held up by the MRA not having control of the land to design and plan where services would be going. This was hearsay evidence. Whilst there are no rules of evidence in the Tribunal, the fact this was hearsay evidence does affect the weight that the Tribunal would attach to this evidence. The Tribunal has determined to place no weight on this particular evidence. If it was true, it was important, if not vital, evidence as to the Tribunal's discretion regarding planning considerations. It was not included in his witness statement. It was self-serving. The developer was not called to provide first hand evidence, nor was there any other evidence presented to support this assertion.
44 The Tribunal also notes that Mr Sanford stated that there was 'an opportunity' in the subdivision (that is, the Deposited Plan) coming up for approval and it was an opportunity to obtain the land required. An opportunity does not satisfy the criteria in s 145(4)(b)(ii) and s 145(6) of the PD Act.
45 However, where Mr Sanford was clearly candid and truthful, in the Tribunal's view, and where the Tribunal does accept his evidence, is that the final design has not yet been achieved in relation to the roundabout at the intersection of Rowley Road North and Hilbert Road. The design is at this point clearly a somewhat moveable feast. Therefore, the land required for the intersection is not yet finally determined, and in that regard we refer to the documents attached to Mr Sandford's statement at CS3. We also refer to BB5 attached to Mr Bordbar's statement and also the clear evidence of Mr Sanford in this regard that this design is not final. Therefore, the Tribunal finds that the land required for the current design for the roundabout does not constitute a planning consideration which warrants refusal to endorse the Deposited Plan. Indeed, the applicant should not be made to cede land in circumstances where it is still not clear what land is required.
46 It is the Tribunal's view that it is not necessary that land be given up now for road widening. This is because the Deposited Plan does not prejudice the later taking of land for road widening along Rowley Road North or along the northern end of Hilbert Road, and because the road widening width and design of the roundabout is not yet settled.
47 During the hearing, the applicant undertook or made a concession - to give up more land for road widening than is shown on the Deposited Plan for Stage 2, namely, to give up a road-widening of five metres along Rowley Road North and Hilbert Road. This concession by the applicant has not influenced the Tribunal in its considerations of what is required at this stage under s 145 of the PD Act.
48 The Tribunal notes that the applicant commenced the hearing by agreeing to remove Lot 94 from the Deposited Plan (see CS3 attached to the witness statement of Mr Sandford). Including Lot 94 in the Deposited Plan did constitute a planning consideration which would warrant refusal. However, this issue has been dealt with in this proceeding by the removal of Lot 94.
49 On balance and for the reasons expressed above concerning a disconnect between this first issue to be determined and the evidence presented by the respondent, the Tribunal prefers to accept the opinion of Mr Page and Mr Bordbar. Therefore, the subject conditions, in the opinion of the Tribunal as required under s 145(4)(b)(ii) of the PD Act when standing in the shoes of the Commission, do not meet the threshold question of being relevant to Stage 2.
50 The Tribunal can comprehend the respondent's concern that developers not be allowed to subdivide, for instance, 90% of an estate without such arrangements being agreed, because there are obviously a number of risks which may arise. The Tribunal accepts that at some stage in the development comprising several stages it will be reasonable to require that the arrangements are settled, but that is not the case here.
51 Simply put, the Tribunal considers that the 'tipping point' has not been reached. It is the Tribunal's view that Stage 1 and Stage 2 do not of themselves present a need for these conditions so that the Deposited Plan should not be endorsed. It is not the Tribunal's role in the matter before it today to determine when this 'tipping point' will be reached. The respondent was unable to satisfy the Tribunal with the evidence that it presented, that there are any planning considerations which warrant refusal to endorse the Deposited Plan.
52 The respondent made submissions regarding the ramifications of a decision by the Tribunal to allow so-called piecemeal compliance with conditions with subdivision approval. However, the respondent failed to provide the Tribunal with evidence which satisfies the Tribunal that there are planning considerations which require these conditions to be complied with at this stage or point in time.
53 The respondent's evidence was directed at strategic or regional planning aspirations and did not link this desire for progressing regional planning with a factual foundation to satisfy the Tribunal that there are planning considerations which are thwarted by endorsing the Deposited Plan for Stage 2. There was simply insufficient evidence on this point in this matter.
54 Further, the respondent's position appears to be that s 145 of the PD Act does not apply except in the most obvious examples and that the regional planning considerations as presented by the respondent always trump a staged subdivision in the sense that all conditions should be complied with at Stage 1, as this provides the respondent with comfort in strategic planning.
55 In the view of the Tribunal, this is not how s 145 of the PD Act is to be interpreted and applied. Section 145 clearly contemplates staged subdivisions which reflect the reality of such developments. In the Tribunal's view, there is nothing about Stage 2 that makes conditions 8, 9, 14, 15, 17 and 18 relevant to the stage, nor are there any planning considerations which warrant refusal to endorse the Deposited Plan.
Orders
56 After giving oral reasons for decision on 1 June 2016 and hearing from the parties further as to the appropriate orders, the Tribunal made the following orders:
1. The application for review is allowed.
2. The deemed refusal dated 17 January 2016 is set aside.
3. The proceedings are listed for further directions at 9.00 am on 10 June 2016.
57 At the directions hearing on 10 June 2016, the Tribunal made the following final order:
1. By 5 pm on 14 June 2016, the respondent is to endorse Deposited Plan 406109 as examined by Landgate on 3 June 2016.
2. The parties have liberty to apply on 24 hours' notice to the other party.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D QUINLAN, MEMBER
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