DEANE and CITY OF MANDURAH
[2015] WASAT 102
•11 SEPTEMBER 2015
DEANE and CITY OF MANDURAH [2015] WASAT 102
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 102 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:226/2013 | 15 JUNE 2015 | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) DR A HINWOOD (SESSIONAL MEMBER) | 11/09/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Condition 7 amended by replacing revegetation completion date of June 2014 with June 2016 Condition 8 deleted and replaced with new condition 8 | ||
| B | |||
| PDF Version |
| Parties: | GRAEME JAMES DEANE LILLIAN DEANE CITY OF MANDURAH |
Catchwords: | Town planning Development Retrospective planning approval of fill Fill placed adjacent to a conservation category wetland 50 metre buffer to wetland Condition requiring revegetation of battered slope of fill in buffer Condition requiring revegetation of remainder of 50 metre buffer Amended proposal considered by local government included reference to revegetation of buffer Review of revegetation conditions imposed Applicants now proposing single line of trees on lot boundary Extent of clearing before filling Rezoning to allow rural residential use Policy and statutory basis for revegetation condition Tests for validity of conditions Whether conditions fair and appropriate in all the circumstances |
Legislation: | City of Mandurah Town Planning Scheme No 3, cl 6.4, cl 6.4.3, Pt 6 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 214, s 252(1) State Administrative Tribunal Act 2004 (WA), s 31 |
Orders | On the application heard before Senior Sessional Member James Jordan and Sessional Member Andrea Hinwood, it is on 11 September 2015 ordered that:,1. The application for review is dismissed and the conditional approval of the City of Mandurah is endorsed.,2. Condition 3 is amended by replacing '10%' with '3:1'.,3. Condition 7 of the approval is amended by deleting from the last line the date 'June 2014' and replacing it with 'June 2016'.,4. Condition 8 of the approval is amended by replacing '5m²' with '10m²' and June 2014 with June 2016.,5. Condition 10 is deleted from the approval. |
Summary | The City of Mandurah granted retrospective conditional planning approval for the placement of fill on a lot at Herron. The applicants applied for review of conditions that required the revegetation of the fill within a 50 metre buffer to an abutting conservation category wetland on the lot.,Three issues fell to be determined. First was whether the conditions were valid, that is, within the power of the local authority to impose. Second was whether, if the conditions were valid, it was fair and appropriate to impose them in all the circumstances. The third issue was, if the conditions imposed were found not to be fair and appropriate, what revegetation condition might be imposed. ,In respect to issue 1, the Tribunal found that the conditions under review were valid planning conditions. In respect to issue 2, the Tribunal found that the conditions under review fairly and appropriately related to the approved development. As a consequence of the findings in issue 1 and issue 2, the Tribunal did not determine issue 3. ,The Tribunal dismissed the application for review and endorsed the conditional approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : DEANE and CITY OF MANDURAH [2015] WASAT 102 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER)
- DR A HINWOOD (SESSIONAL MEMBER)
- LILLIAN DEANE
Applicants
AND
CITY OF MANDURAH
Respondent
Catchwords:
Town planning Development Retrospective planning approval of fill Fill placed adjacent to a conservation category wetland 50 metre buffer to wetland Condition requiring revegetation of battered slope of fill in buffer Condition requiring revegetation of remainder of 50 metre buffer Amended proposal considered by local government included reference to revegetation of buffer Review of revegetation conditions imposed Applicants now proposing single line of trees on lot boundary Extent of clearing before filling Rezoning to allow rural residential use Policy and statutory basis for revegetation condition Tests for validity of conditions Whether conditions fair and appropriate in all the circumstances
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 6.4, cl 6.4.3, Pt 6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 214, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application for review dismissed
Condition 7 amended by replacing revegetation completion date of June 2014 with June 2016
Condition 8 deleted and replaced with new condition 8
Summary of Tribunal's decision:
The City of Mandurah granted retrospective conditional planning approval for the placement of fill on a lot at Herron. The applicants applied for review of conditions that required the revegetation of the fill within a 50 metre buffer to an abutting conservation category wetland on the lot.
Three issues fell to be determined. First was whether the conditions were valid, that is, within the power of the local authority to impose. Second was whether, if the conditions were valid, it was fair and appropriate to impose them in all the circumstances. The third issue was, if the conditions imposed were found not to be fair and appropriate, what revegetation condition might be imposed.
In respect to issue 1, the Tribunal found that the conditions under review were valid planning conditions. In respect to issue 2, the Tribunal found that the conditions under review fairly and appropriately related to the approved development. As a consequence of the findings in issue 1 and issue 2, the Tribunal did not determine issue 3.
The Tribunal dismissed the application for review and endorsed the conditional approval.
Category: B
Representation:
Counsel:
Applicants : Mr MJ Hardy
Respondent : Mr CA Slarke
Solicitors:
Applicants : Hardy Bowen
Respondent : McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Deane and City of Mandurah [2014] WASAT 165
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
Randall and Town of Vincent [2005] WASAT 147
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Introduction
1 This matter involved an application by Mr Graeme Deane and Ms Lillian Deane (applicants) pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of conditions 7, 8 and 9 imposed by the City of Mandurah (respondent or City) on a retrospective planning approval for the placement of fill on No 145 (Lot 1) Southern Estuary Road, Herron (site).
2 The site is an irregularly shaped lot of about 12.4 hectares that lies between Southern Estuary Road to the west, and to the east a regional open space reserve adjacent to the PeelHarvey Estuary. As described by the respondent, the land appears to have been used historically for rural purposes, mostly grazing with the western section, which abuts Southern Estuary Road, having been parkland cleared. The eastern section, abutting the estuary, is a conservation category wetland (CCW), and in the northern part of the site is a triangular section designated a multiple use wetland.
3 The applicants had placed fill on approximately 1.58 hectares of the northern and north-western portion of the site without first having applied for, and obtaining, planning approval. The respondent used a series of photographs to illustrate 'some clearing' and the stages of fill from about June 2011 through to early 2013. The grounds for review included the statement:
The site has been filled to a height of around 2 metres HD. The land owners estimate that an average of around 600 millimetres of landfill has been placed on the subject site. The landfill ranges between 0.4 to 1.2 metres across the site.
4 On 13 March 2013, the applicants lodged with the City an application for retrospective planning approval for the fill. On 22 May 2013, the City refused the application and the applicants filed an application for review with the Tribunal.
5 Following mediation between the parties, the applicants filed an amended proposal and the respondent was invited by the Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to reconsider its decision. The Tribunal, in its earlier determination of a preliminary issue, found that the amended proposal, dated 5 September 2013, was prepared and filed by consultants while acting as agents for the applicants, while in certain later exchanges between the consultants and the City, the consultants were not acting as agents for the applicants: Deane and City of Mandurah [2014] WASAT 165.
6 The proposal dated 5 September 2013, filed with the Tribunal on 6 September 2013, included a letter that discussed features that included removing fill placed within the CCW, regrading remaining fill so as not to exceed a maximum depth of 600 millimetres above natural ground level, and the planting of a 50 metre buffer to the CCW with a listed mix of species at a planting density 'consistent with surrounds'.
7 The 5 September 2013 proposal referred to and had attached two plans. One plan referred to as 'Gem Surveys Map of Filled Area' was an orthophotograph dated 5 September 2013, with coloured lines superimposed showing boundaries of the site, the CCW and the area of fill. The multiple use wetland was almost entirely the subject of fill. There were small intrusions of fill into the CCW in the northeastern corner and in a section towards the southeastern extent of the filled area.
8 The second plan was headed 'Proposed Subdivision Guide Plan Town Planning Scheme Amendment 110'. This showed the site, proposed future subdivision lot boundaries, building envelopes and extent of fill, and included a box headed 'Revegetation within 50 metre Buffer of CCW'. Under the heading in the box was a list of plants repeated from a list in the 5 September 2013 letter.
9 The applicants had also filed an application for review of a notice issued by the City pursuant to s 214 of the PD Act directing that the fill be removed from the site. The respondent resolved to withdraw the directions notice in November 2013.
The conditions
10 The City considered the applicants' amended proposal dated 5 September 2013 and granted conditional approval on 26 November 2013. Endorsed on the approval were conditions including conditions 7, 8 and 9. Condition 7 requires:
Within the area of the battered slope (within the buffer zone of the conservation category wetland), revegetation shall be undertaken by or on behalf of the proponent to a density of 3 plants per m² with the species from the following list …
[a list of 6 plants follows]
and a further 1 plant per 5m² with species from the following list …
[a list of 2 plants follows]
Revegetation shall be completed before the end of June 2014 [.]
11 Condition 8 was amended by the respondent in its statement of issues, facts and contentions as to the density of planting, and the condition now under review reads:
Within the remainder of the conservation category buffer zone (within the area covered by fill) revegetation shall be undertaken by or on behalf of the proponent at a density of 1 plant per 10 per m² with species from the following list … [a list of 7 plants follows].
Revegetation shall be completed before the end of June 2014[.]
12 Condition 9 requires that two years after the revegetation works, an assessment shall be done to determine if a 70% survival rate has been achieved, and if not, further revegetation work is to be undertaken to the satisfaction of the City. If conditions 7 and 8 were to be deleted then condition 9 would also have to be deleted.
13 A footnote to condition 7 says that the intention of the revegetation of the battered slope is stabilisation and erosion control.
14 At the hearing the applicants pointed out that there was a difference between the revegetation proposed at the time of the submission of the amended application on 5 September 2013 for consideration under s 31 of the SAT Act, and the revegetation which was sought to be imposed by way of conditions as part of the decision of the respondent.
The review
15 In the application for review, the applicants argued that conditions 7, 8 and 9 should be deleted from the approval and there should be no conditions for revegetation of the buffer. The applicants did not argue that the revegetation should be as suggested in the 5 September 2013 proposal. The applicants explained that, following the respondent's decision, they had changed their position on revegetation.
16 At the hearing, counsel for the applicants said his instructions now were that limited revegetation is proposed as part of the application the subject of consideration by the Tribunal. The applicants put into evidence an aerial photograph showing the filled area of site with a hand drawn amendment to indicate about 10 peppermint trees proposed to be planted parallel to and set back about 10 metres from the northern boundary of the site (June 2015 plan). This plan had no accompanying text or explanation.
17 In its statement of issues, facts and contentions, the respondent stated that in condition 3, which includes removal of fill in excess of 600 millimetres, and fill within the CCW to be removed and the construction of a batter, a batter slope of 3:1 rather than of 10% would be acceptable. The respondent also stated that condition 10 can be deleted. The applicants took no issue with these changes.
Planning framework
18 Under the City of Mandurah Town Planning Scheme No 3 (TPS 3), the site was rezoned to Special Use in May 2015 (Amendment 110), having previously been zoned Rural.
19 TPS 3 Appendix 3 'Special Uses' sets out for the site permitted uses 'as per Rural Residential'. In the column 'Development standards/conditions' there is included at point 2 that development be located a minimum of 50 metres from the conservation category wetland, and at point 5, that a Foreshore Management Plan, including revegetation of the 50 metre conservation category wetland buffer, be prepared and implemented as a condition of subdivision approval.
20 Part 6, cl 6.4 of TPS 3 deals with the Peel-Harvey Catchment, and cl 6.4.3 states:
Development of any kind in the Peel-Harvey Catchment should relate to land capability and suitability and specific management practices (such as effluent treatment, red mud amendment, revegetation and stocking rates).
21 The respondent also referred to:
• State Planning Policy No 1 State Planning Framework
• State Planning Policy No 2 Environment and Natural Resources (SPP 2), which states:
5.1 Planning strategy schemes and decision-making should:
…
(2) Actively seek opportunities for improved environmental outcomes including support for development which provides for environmental restoration or enhancement.
5.2(i) Consider mechanisms to protect, manage, conserve and enhance:
(a) wetlands of importance, Ramsar wetlands and wetlands identified in any relevant Environmental Protection Policy.
…
(iv) Ensure the provision of adequate setbacks between development and the foreshore of wetlands … Such setbacks will aim to maintain natural drainage function … and may include the retention or replacement of riparian vegetation.
…;
• State Planning Policy 2.5 - Land Use Planning in Rural Areas (2012); and
• State Planning Policy 2.9 - Water Resources.
22 The respondent also referred to:
•Environmental Protection (Swan Coastal Lakes) Policy 1992.
• Environmental Protection Authority (EPA) Guidance Statement No 28 (1998). Protection Lake Clifton section 5.2 rural residential.
• EPA Guidance Statement No 33 Environmental Guidance for Planning and Development (2008) at chapter B4 – wetlands refers at B4.3.2 to management measures. Encouraged are buffer rehabilitation, revegetation using indigenous vegetation and no fill. Defined terms in chapter B4 include that:
[a] wetland buffer is the designated area adjoining a wetland that is managed to protect the wetland's ecosystem health.
Attachment B4-3 requires a 50 metre buffer to a CCW.
• EPA Environmental Protection (Peel Inlet - Harvey Estuary) Policy 1992, that obliges decisionmakers to attempt to achieve the various environmental quality objectives of what is now State Planning Policy 2.1 - Peel-Harvey Coastal Plain Catchment through relevant town planning schemes and the Metropolitan Region Scheme where that applies.
Issues
23 In this matter, the issues can be summarised as:
1) whether conditions 7, 8 and 9 are valid;
2) if these conditions are valid, whether they are reasonable and appropriate in all the circumstances; and
3) if the conditions are not reasonable and appropriate, whether a variation to the conditions is an acceptable outcome.
Discussion
Issue 1: whether conditions 7, 8 and 9 are valid
24 The parties usefully set out the test for the validity of the conditions, that is, whether it is within the power of the local government to impose the conditions. The test is known as the 'Newbury' test from the decision of the
25 House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. The test has been endorsed by the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57]. The three limbs of the test can be summarised as:
1) The condition is for a planning purpose and not for any ulterior purpose.
2) The condition reasonably and fairly relates to the development permitted.
3) The condition is not so unreasonable that no reasonable planning authority could have imposed it.
26 The parties made the comment, and the Tribunal agrees, that the Newbury test is about whether a particular condition is within the power of the local authority to impose. It is not about the planning merits of the condition per se, although, necessarily, the merits issue sometimes gets blurred with the question of power.
27 Dealing with the first limb of the Newbury test, the respondent said:
[T]he conditions plainly have a planning purpose. That self-evident purpose is to improve and enhance the wetland buffer. That is a legitimate planning purpose, as is evidenced by the various suite of policy documents which are referred to in the City's witness statements … and which form part of the documentation before the tribunal.
28 The applicants accepted the content of the various policy documents, but pointed out that the fill was placed on areas of the site where there was degraded pasture and there had been no clearing of native vegetation. The grounds of review stated that the fill had been placed on the site to protect it from flooding. The applicants' submission was that there was no power in TPS 3 to compel an owner of land to address environmental concerns. The fact of the development was therefore being used to impose conditions to satisfy environmental objectives, not planning objectives arising from the development.
29 The Tribunal has formed the view that the conditions are for a planning purpose. Rendering fill batters stable and fill resistant to erosion is directly relevant to the planning purpose of raising the level of a lot by filling, and ensuring that a flooding problem is properly addressed. Revegetation is a means to ensure any fill is stable and serves the intended purpose.
30 The Tribunal also considers conditions to ensure that fill does not have an adverse impact on a neighbouring conservation category wetland have a planning purpose. That purpose is to ensure that fill of unknown origin with replaced top soil is stable, serves the purpose for which it is created, does not erode or result in runoff that will impact on the adjoining wetland, and serves the purpose of flood mitigation. Revegetation of the buffer, as required by the conditions, would achieve this planning purpose.
31 The second limb of the Newbury test is whether the conditions reasonably and fairly relate to the development. This is also referred to as the 'nexus test'. That is, is there a sufficient nexus or connection with the development to enable the condition to be called valid or to be within power?
32 Relevant to the consideration of this limb of the test are the findings of the then Town Planning Appeal Tribunal in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 (Perrymead). Perrymead was concerned with subdivision conditions, but can be read and applied, as the parties have done, by substituting 'development' for the word 'subdivision'. In Perrymead, the Tribunal determined in relation to the 'nexus' test, at [186]:
… a condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree.
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.
…
In normal circumstances, and as a general proposition, the condition must at least be related to changes that can be said to arise from the particular development or subdivision.
- Perrymead goes on to state at [186]:
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.
34 Ms Nicola Leishman, a planning officer from the City, produced a witness statement in which she offered the opinion that the development application 'triggered' the requirement to consider all State and local planning policies. In the respondent's submission, the planning framework makes it abundantly clear that revegetation within a wetland buffer is a desired planning outcome. The revegetation contemplated by the planning framework was concerned both with protecting and enhancing the natural environment. It was submitted that the very nature of revegetation or environmental enhancement was that it improves upon the previously degraded state of the land.
35 Ms Leishman then went on to say that it was therefore appropriate to 'apply the principles of risk management' and require revegetation to minimise any further degradation of the existing vegetation of the site.
36 The applicants referred to a report on the site prepared by environmental consultants, Ecoscape, that referred to the area of the site that was subsequently filled as being mostly degraded pasture. The applicants argued that no vegetation was removed prior to placement of fill on the site and the fill would be battered to protect the CCW and boles of existing trees. In the applicants' submission, there were clear policy objectives of rehabilitation and retention of existing vegetation, but the factual circumstances were that this development did not trigger a power for the respondent to require the applicants to take the extra steps required by the conditions. In the applicants' submission, there was no nexus between the development and the conditions under review.
37 The Tribunal has formed the view that there is a nexus between the development and the conditions requiring revegetation. The placement of fill on the site changed the relative relationship between the CCW and the remainder of the site. The Tribunal considers it necessary to ensure that within the buffer to the wetland, the new batter slope and the fill area remain stable, that there is no erosion or excess runoff, and that new growth that occurs does not adversely affect the integrity of the wetland. The Tribunal notes that the fill in the buffer is not more than 600 millimetres, but is of the opinion that the conditions are required so that the development does not result in adverse on site consequences.
38 The Tribunal acknowledges that the conditions are likely to meet wider policy objectives of enhancing environmental outcomes, but, consistent with the findings in Perrymead, the nexus with the development remains, and so the second limb of the Newbury test is considered to be satisfied.
39 The third limb of the Newbury test refers to the strict test of unreasonableness as set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at [230] (Wednesbury). In essence, 'Wednesbury' unreasonableness as expressed in this test might be described as a test of whether the conditions are irrational or devoid of any plausible justification.
40 In Wednesbury the House of Lords went on to say:
As counsel for the local planning authority said, test three is almost invariably wrapped up in the first two, but it is possible, although unusual, that a condition could, in an exceptional case, satisfy the first two tests but fail the third.
41 The Tribunal, as set out above, has come to the conclusion in the first two 'limbs' that the conditions are for a planning purpose and there is a nexus between the conditions and the development approved. The Tribunal considers it to therefore follow that the conditions satisfy this test.
42 The Tribunal raised with the parties a fourth test that might be added in assessing whether a condition is valid. This test is well established in administrative law in respect to town planning matters and has been applied by the Tribunal - for example, in Randall and Town of Vincent [2005] WASAT 147. The test can be expressed as:
4) whether the condition is certain and final.
43 The respondent argued that the conditions under review were certain and final. The applicants argued that a certain and final condition could be drafted for the June 2015 plan. The Tribunal agrees with both submissions.
44 The Tribunal has found that the conditions satisfy the tests for validity and that it was within the power of the respondent to impose them. This leads to the consideration of the second issue.
Issue 2: whether the conditions under review are fair and appropriate in all the circumstances
45 The respondent acknowledged that the site had been parkland cleared, and there was evidence that previously the buffer to the CCW was in poor condition and weed infested. The respondent argued that as the fill changed and increased the height of the buffer, it was appropriate to consider the development having regard to TPS 3 and policy provisions, all of which go towards, where possible, the enhancement and revegetation of buffer areas to wetlands.
46 The respondent argued that the conditions were also proportionate referring to the witness statement of Mr Peter Brenchley, an environmental officer of the City. The respondent said there was no attempt to return the land to a pristine naturally vegetated state. The evidence was that the planting density proposed would, in the short term, 'provide a canopy, a fauna habitat, shade, leaf litter and other elements which serve to improve the buffer function'. There was no contrary evidence.
47 The respondent said the conditions were a proportionate response to permitting an imperfect buffer, with the deposited fill, to remain. It considered that the applicants' alternative proposals in the 5 September 2013 proposal for revegetation, which went to the Council, and in the June 2015 plan were inadequate and unacceptable. The City's requirements set out in conditions 7, 8 and 9 were reasonable and appropriate in all the circumstances.
48 The applicants contended that the requirements of conditions 7 and 8 were 'opportunistic' and 'disproportionate'. This was because the site was already largely cleared, and fill placed on the land didn't change anything. It was contended that the appropriate extent of revegetation required was that shown in the July 2015 plan.
49 The applicants referred to Appendix 3 of TPS 3 and argued that any revegetation should be part of a foreshore management plan required as a condition of subdivision. The fill was for the purpose of flood mitigation and the conditions should be applied once there was a proposed use or contemplated activity that would be a trigger for such conditions. The policy objectives of recovering environmental values as expressed by the respondent in the conditions was disproportionate to the development approved.
50 The Tribunal has concluded that placing fill on the site to raise the elevation of the buffer was a tangible change to the nature of the land and therefore it must be determined whether conditions of approval are required. The Tribunal accepts the uncontradicted evidence of Mr Brenchley that the sand placed as fill in the buffer should not simply be left in an untreated state that might give rise to changes from erosion and unfiltered runoff that will result in an adverse impact on the adjacent CCW. This requires that the fill in the buffer be stabilised.
51 The applicants said the fill included the replacement of topsoil, presumably removed from the site before the fill was deposited. The buffer was previously degraded pasture and condition 3 of the approval requires the removal of weeds from the fill. The Tribunal is not convinced this approach would be adequate to stabilise the fill. The applicants did not provide evidence for any alternative treatment for the fill at the hearing.
52 The Tribunal has accepted that the planting required by conditions 7 and 8 would ensure the proper functioning of the buffer to the CCW.
53 The Tribunal has concluded that the proposed conditions are an appropriate and proportionate mechanism to achieve this outcome. TPS 3, the statements of planning policy and the relevant EPA guidance all refer to protection of wetlands, and the conditions also achieving this environmental objectives of the planning framework was a factor that the Tribunal considers contributes to, but was not the sole reason for, its finding on the fairness and appropriateness of the conditions.
Issue 3: If the conditions are not fair and appropriate, whether a variation to the conditions is an acceptable outcome
54 The Tribunal has concluded that the conditions under review are fair and appropriate. It is not therefore necessary to examine in any depth the alternative put forward by the applicants. The only comment the Tribunal would make is that it was not clear what was the intended relationship, if any, between the row of peppermint trees along the northern boundary of the site proposed in the June 2015 plan, the fill in the buffer, and the CCW, or with the environmental objectives of the documents in the planning framework.
Conclusion
55 In respect to issue 1, the Tribunal has found that the conditions under review are valid and that it is open to the respondent to impose such planning condition.
56 In respect to issue 2, the Tribunal further found that the conditions under review fairly and appropriately relate to the approved development. The Tribunal accepts the respondent's suggestion that the reference in condition 7 and condition 8 to a planting date of June 2014 be changed to June 2016.
57 In respect to issue 3, the applicants did raise as a question whether or not the position adopted by the applicants with respect to revegetation, as shown on the June 2015 plan, constituted a variation or amendment to that which was proposed by or on behalf of the applicants as part of the 5 September 2013 application made to the respondent.
58 As mentioned above, the respondent argued that the review was of the conditions imposed by the respondent.
59 Having made its findings on issue 1 and 2, the Tribunal considers it not necessary to explore this question.
60 Following consideration of the evidence and submissions of the parties, as set out above, the Tribunal has decided to dismiss the application for review and endorse the conditional approval of the development issued by the respondent.
Orders
1. The application for review is dismissed and the conditional approval of the City of Mandurah is endorsed.
2. Condition 3 is amended by replacing '10%' with '3:1'.
3. Condition 7 of the approval is amended by deleting from the last line the date 'June 2014' and replacing it with 'June 2016'.
4. Condition 8 of the approval is amended by replacing '5m²' with '10m²' and June 2014 with June 2016.
5. Condition 10 is deleted from the approval.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, SENIOR SESSIONAL MEMBER
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