DUCKWORTH and WESTERN AUSTRALIAN PLANNING COMMISSION - [2005] WASAT 337

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: DUCKWORTH and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 337

MEMBER: MS M CONNOR (MEMBER)
DR B DE VILLIERS (MEMBER)
MS J SMITHSON (SESSIONAL MEMBER)

HEARD: 8 AUGUST 2005 AND 30 AUGUST 2005
(FURTHER WRITTEN SUBMISSIONS RECEIVED 6 SEPTEMBER 2005, 13 SEPTEMBER 2005 AND 20 SEPTEMBER 2005)

DELIVERED : 16 DECEMBER 2005

FILE NO/S: DR 305 of 2004

BETWEEN: NEIL JAMES DUCKWORTH
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town Planning - Subdivision - Review of condition of approval - Road upgrading and construction - Power of Tribunal to vary conditions - Whether condition fairly and reasonably relates to the subdivision - Trip generation - Road width to traffic volume - Implications of future regional road

Legislation:

Shire of Gingin Town Planning Scheme No 8, Appendix 6

State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 167(4)(a)

Town Planning and Development Act 1928 (WA), s 5AA, s 20, s 24(1), s 61(1)(a)

Result:

The application for review is allowed
The decision under review is varied

Category: B

Representation:

Counsel:

Applicant: Mr A Stavrianou
Respondent: Mr S Murphy

Solicitors:

Applicant: Clairs Keeley
Respondent: State Solicitor's Office

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

Perrymead Pty Ltd v WAPC (1996) 16 SR (WA) 181
Stewart and Western Australian Planning Commission [2005] WASAT 116

Case(s) also cited:

Barking Owl Pty Ltd as Trustee for the Barking Family Trust v City of Fremantle [2004] WATPAT 188
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 53 ALR 632
Cinanni v WAPC (2003) 34 SR (WA) 88
Temwood Holdings Pty Ltd v Western Australia Planning Commission (2004) ALJR 414

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Duckworth sought review of conditions 3 and 21 of the Western Australian Planning Commission's approval of 12 October 2004. Condition 21 was resolved by agreement of the parties, whereas condition 3 proceeded to hearing.
Condition 3 required satisfactory arrangements being made with the Western Australian Planning Commission for the construction and drainage/upgrading of Ocean Farm Drive and Nilgen Road. The main issue was whether a condition relating to the upgrading of roads within Ocean Farm Estate fairly and reasonably related to the proposed subdivision. The matter was further complicated by the likely construction of a regional road.
The Tribunal determined that it would not be unreasonable to impose a condition on the approval of subdivision that linked the final stage of the subdivision with a requirement to upgrade certain specified roads if tenders for the construction of the regional road had not been awarded prior to the commencement of the subdivisional works for the final stage of subdivision.

Introduction

Mr Duckworth (the applicant) made application to the Western Australian Planning Commission (the respondent) on 23 June 2004 to subdivide lot 3919Ocean Farm Road, Nilgen into 175rural residential lots averaging 2.5 hectares in area, public open space sites, a water bore and pump site and two water tank sites for emergency fire fighting purposes.
The respondent approved the application on 12 October 2004 subject to 26 conditions and 10 advice notes.
The applicant, by Notice of Appeal dated 10 December 2004, appealed against conditions 3 and 21 of the respondent's decision. The conditions read as follows:
"3.Satisfactory arrangements being made with the Western Australian Planning Commission for the construction and drainage/upgrading of Ocean Farm Drive and Nilgen Road (LG);
21.Certification from a licensed water service provider that connection to a reticulated water supply service has been provided to the lots proposed by this application (Service Provider to be nominated)(WAPC)."
Although the appeal was initially lodged with the Town Planning Appeal Tribunal, which was abolished as of 1 January 2005, the proceedings were transferred to the State Administrative Tribunal in accordance with s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA).
The matter was referred to mediation, which resulted, by agreement of the parties, that the contents of condition 21 be deleted in its entirety and replaced with the following:
"Certification from a licensed water service provider, licensed to provide water to the land the subject of this application, that connection to a reticulated water supply service has been provided to the lots proposed by this application;
Alternatively, the condition may be cleared by agreement between the developer and the licensed water service provider, licensed to provide water to the land the subject of this application. (WAPC) (The licensed water service provider, licensed to provide water to the land the subject of this application)."
Condition 3 was not resolved through mediation and this aspect of the matter proceeded to hearing.

Land description and locality

The subject land is more particularly described as lot 3913 on DP 211969, as comprised in Certificate of Title Volume 1553 Folio 661. The lot is 486.6592 hectares in area.
The subject land is located within the Shire of Gingin, approximately 10 kilometres northeast of Lancelin and is bounded to the west by the existing Ocean Farm Estate Stage 1 settlement and Nilgen Road to the east.
Ocean Farm Estate Stage 1 was released in 1979 and comprises approximately 172 lots ranging in size between 2 and 8 hectares per lot (averaging 4 hectares approximately). According to the evidence of Mr Veal, an expert witness called by the applicant, approximately 122 (62%) of the 172 lots have been developed, two have been cleared and the balance remains as bushland.
At present, residents of Ocean Farm Estate access the Lancelin Townsite by travelling south on Nilgen Road, east on Sappers Road, south on KW Road and then north on Lancelin Road. By turning south on Lancelin Road, residents will head towards Perth. At present there is no link further north. Indian Ocean Drive is planned to connect Lancelin through to Cervantes and beyond and will provide alternative access from Ocean Farm Estate to Lancelin.

The proposal

The proposed subdivision of the subject land comprises some 175 lots ranging in area between approximately 2 and 6 hectares per lot (averaging 2.5 hectares) as well as public open space sites, a water bore and pump site and two water tank sites for emergency fire fighting purposes. Release of the lots is proposed in seven stages, originally scheduled to commence in July 2005 through to December 2008. The order of scheduled land release appears in Figure 3.1 of Exhibit 5.
The proposed subdivision is identical to two subdivision proposals previously approved by the respondent in 1998 and 2001 (ref: WAPC 102360 and 113932). Condition 3 reads the same in all three approvals. An advice note attaches to that condition in the 1998 and 2004 approval. There is no advice note relating to condition 3 in the 2001 approval. The corresponding advice notes in the 1998 and 2004 approvals differ considerably. Mr Gildenhuys, a senior planner with the Department for Planning and Infrastructure, could not offer any explanation for the differences between the advice notes.

Planning framework

The subject land was rezoned from "Rural" to "Rural Residential" and "Parks and Recreation" by Amendment No 25 to the Shire of Gingin Town Planning Scheme No 8 (TPS 8) in 1997. This amendment also incorporated provisions specifically relating to this area stipulating that development of the site should be carried out in accordance with the Management Plan, Fire Management Plan and the Subdivision Guide Plan adopted by Council and endorsed by the Shire Clerk. The respondent accepts that the proposed subdivision accords with the Subdivision Guide Plan adopted for the subject land under Amendment No 25.
The respondent has prepared a number of planning documents for the purpose of exercising the power of the Commission under s 20 of the Town Planning and Development Act 1928 (WA) (the TPD Act).
Statement of Planning Policy No 1 – State Planning Framework Policy (SPP1) unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision‑making on land use, subdivision and development in Western Australia. SPP1 has been formulated under s 5AA of the TPD Act and as such, the Tribunal is required to have "due regard" to the provisions contained in the SPP1 in making decisions on planning matters: s 61(1)(a) of the TPD Act.
Part A of SPP1 establishes certain general principles for land use planning and development and identifies five key principles to guide the way in which future planning decisions are to be made. These principles underlie all State and regional plans, policies and strategies. One of the key principles focuses on "Infrastructure" and provides the following statement which is pertinent to this appeal:
"Planning should ensure that physical and community infrastructure by both public and private agencies is coordinated and provided in a way that is efficient, equitable, accessible and timely. This means:
•Planning for land use and development in a manner that allows for the logical and efficient provision and maintenance of infrastructure …"
Operational policies listed in SPP1 and referred to by the respondent include Policy DC 1.1 Subdivision of Land ‑ General Principles (DC1.1) and Policy DC1.7 General Road Planning (DC1.7). These policies establish the general principles in determining applications for the subdivision of land and more specifically, relevant to this application, requirements relating to the upgrading and construction of existing roads.
The respondent also referred to Planning Bulletin No 18: Developer Contributions for Infrastructure (PB 18), which identifies the general principles applicable to developer contributions, contribution arrangements and method of contribution. Schedule 1 of the bulletin sets out the arrangements for developer contributions and identifies "Road Upgrading" relating to where a subdivision will cause increased traffic levels requiring an upgrading of local roads leading to or within the subdivision.
Pursuant to s 24(1) of the TPD Act, the respondent forwarded the subdivision to the Shire of Gingin for comment or recommendations. In relation to the existing roads, the Council indicated that the proposed subdivision would potentially generate significantly increased vehicle movements and that upgrading of Nilgen Road and Ocean Farm Road would be necessary. The identified works (as specified in the planning officer's report to Council) were incorporated as an advice note attaching to condition 3 of the respondent's approval. The advice note reads as follows:
"The Commission advises that Condition No 3 should not be interpreted to imply that it requires the construction/upgrading to be at the subdivider's cost but this is a matter for negotiation between the subdivider and the Local Government. The Shire states that the proposed subdivision will potentially generate significant vehicle movements and has provided the following advice in relation to the upgrading of Ocean Farm [D]rive and Nilgen Road:
i)Existing Nilgen Road south of Ocean Farm [D]rive is currently 6.3 metres wide. Due to the subdivision, the traffic volume on this section of road is expected to increase by approximately 1400ADT. Based on Council's guidelines, the width of this pavement should be increased to 8 metres. It also requires guideposts and white lines;
ii)Ocean Farm Drive currently varies in width between 5.5 – 6.1 metres. This road is expected to carry an additional 600 vehicles per day generated from this subdivision. The pavement should be increased in width to 7 metres and the old pavement re-surfaced; and
iii)Due to the overall increase in traffic from this subdivision and the changing of Council requirements, all intersections should be re-surfaced with asphalt."

The issues in these proceedings

The first issue before the Tribunal is whether condition 3 is a valid condition. The applicant asserted that the condition is open‑ended and open to unreasonable impositions by the local authority. Mr Murphy, counsel for the respondent, conceded that there was a problem with conditions that are as widely drawn as condition 3 and informed the Tribunal that the respondent was not placing any reliance on that condition. Mr Murphy sought to maintain that a set of alternate conditions dealing with road upgrading should be imposed in lieu of condition 3. These are as follows:
"1.The applicant is to construct Bottlebrush Road to 7 metres width.
2.The applicant is to widen Ocean Farm Road (commencing at the junction of with Ocean Farm East ‑ see attached map) to 8 metres.
3.The applicant is to widen Nilgen Road from Ocean Farm Road northwards to Bottlebrush Road to 7 metres.
4.The applicant is to widen Nilgen Road from Ocean Farm Road southwards to the southern boundary of the subject subdivision to 8 metres."
Given the position of the respondent, the applicant then questioned the powers of the Tribunal in relation to the imposition of alternate conditions of the planning approval. The Tribunal accepts the respondent's position not to press condition 3 and holds the same view as expressed in Stewart and Western Australian Planning Commission [2005] WASAT 116, that being, "…the role of the Tribunal and the powers available to it means that each condition can be – if not ought to be - appropriately varied in reaching the correct and preferable decision: see State Administrative Tribunal Act 2004, section 27 and section 29. The same approach would apply also if the conditions had been found to be 'ambulatory'".
As stated in Perrymead Pty Ltd v WAPC (1996) 16 SR (WA) 181, "[f]or a condition to be valid and efficacious, it must be shown to have some nexus with the subdivision…. It is sufficient if the condition can be said to reasonably arise from the fact of the subdivision". In this instance the Tribunal is required to determine whether, on the evidence, a condition relating to the upgrading of roads within Ocean Farm Estate reasonably and fairly relates to the proposed subdivision.
As the nature of the review is by way of a hearing de novo, the Tribunal is not confined to the matters that were before the decision‑maker, and in this instance, both parties provided additional material on point. Both parties engaged traffic engineers as expert witnesses. The Tribunal ordered that they confer with one another prior to the hearing to identify the matters upon which they agree and disagree and the reasons for any disagreement. The only area of agreement between the experts was that any upgrading required in relation to road width should be determined by reference to the relevant Shire of Gingin Guidelines. There was no agreement between the experts in regards to the following aspects:
•the volume of traffic that the subdivision is likely to generate;
•the preferred method of determining the appropriate trip rates; or
•the value of the data collected.
The respondent called Mr Michael Klyne to given evidence in these proceedings. Mr Klyne prepared a report, "Traffic Impact Analysis Ocean Farm Stage 2 Subdivision", which required on-site inspections, measurement of road widths, traffic volume counts, research into available records from the Shire of Gingin, and consideration of the applicant’s report to determine the:
•current situation;
•future situation without Ocean Farm Estate Stage 2;
•future situation with Ocean Farm Estate Stage 2 (without Indian Ocean Drive);
•future situation with Ocean Farm Estate Stage 2 (including Stage 1 fully developed); and
•impact of Indian Ocean Drive.
The methodology used by Mr Klyne to determine trip generation involved the following:
i)the consideration of traffic volume counts on Ocean Farm Road for the period 14 June 2005 to 29 June 2005, collected by the Shire of Gingin, and the turning vehicle count at the intersection of Ocean Farm Road and Nilgen Road undertaken by video survey, between 7.00 am and 7.00 pm on 24 June 2005 to determine the average number of vehicle trips generated per household per day in Ocean Farm Estate Stage 1.
ii)an examination of traffic generation rates for development as specified by various State authorities which included:
•Traffic Authority of New South Wales (1985);
•Traffic Authority of New South Wales (1993);
•AMCORD;
•the Director-General of Transport, South Australia (1987); and
•Austroads – Guide to Traffic Engineering Practice ‑ Part 5: Intersections at Grade (2005).
iii)the development of a number of assumptions relating to the patterns of activity for Ocean Farm Estate Stage 1 based on zoning, land use and census data.
From the above, he concluded:
i) the average number of vehicle trips generated per household per day (being 1.9 trips per household) for Stage 1 Ocean Farm Estate, as calculated from the analysis of the traffic volume count on Ocean Farm Road and the turning vehicle count at the intersection of Ocean Farm Road and Nilgen Road, was flawed;
ii)based on the above mentioned authorities and assumptions, an average of six vehicle trips per day per dwelling would therefore not be unreasonable; and
iii)a traffic generation rate of eight vehicle trips per day, as recommended by the Shire of Gingin, would be towards the upper end of the scale.
Based on the above conclusions, Mr Klyne produced traffic models for a number of scenarios showing predicted traffic generation rates along various sections of roads in Ocean Farm Estate Stages 1 and 2. The use of predicted traffic generation figures and the "road width to traffic volume" requirements as prescribed by the Shire of Gingin Guidelines resulted in the formulation of the alternate conditions. These conditions were based on the existing road structure without the construction of Indian Ocean Drive.
If Indian Ocean Drive and the link road to Ocean Farm Estate were constructed, Mr Klyne contended that there would be a redistribution of traffic to the west of the subdivision and that in excess of 85% of traffic generated by Stage 2 and 100% of the traffic generated by Stage 1 would use the new route. For this scenario Mr Klyne maintained Ocean Farm Drive (North) would require widening from the existing 6.0 metres width to 7.0 metres for 3.6 kilometre length and Ocean Farm Drive (South) from 6.0 metres to 8.0 – 9.0 metres for 3.1 kilometre length. He also asserted that Ocean Place (820 metres) would need to be widened from the existing 6.0 metre width to 8.0 metres as the traffic volume is expected to exceed 3,000 vehicles per day (vpd).
The applicant called Mr Donald Veal, to give evidence in these proceedings. Mr Veal prepared a report "Ocean Farm Stage 2 Shire of Gingin – Response to Condition 3 of Approval to Subdivision". Mr Veal’s assessment included:
•traffic counts of Stage One of Ocean Farm Estate on Monday, 21 March 2005 between 7.00am and 6.00pm and additional traffic counts at the entry point of Ocean Farm Estate on Monday, 6 June to Sunday, 13 June 2005 (inclusive) and turning movement counts on each day between 7am and 7pm;
•traffic counts of Seaview Park Estate (a similar type of subdivision some 10 kilometres from Lancelin townsite, although the lot sizes are smaller than those proposed at Ocean Farm Estate Stage 2) on Monday, 21 March 2005 between 7.00am and 6.00pm.
Based on the above counts, Mr Veal estimated the trip generation rate per lot to be approximately 1.53 vpd for Ocean Farm Estate Stage 1 and 4.3 vpd at Seaview Park. Mr Veal maintained that the travel patterns for Ocean Farm Estate Stage 1 were fairly well established as development had been underway for some 26 years and that there was no reason to expect that the progressive development of Stage 1 was likely to lead to a substantial increase in the rate of trips generated. In the case of Ocean Farm Estate Stage 2, he did not expect the trip generation rate to exceed that measured for Seaview Park Estate. He estimated the trip generation rates for Ocean Farm Estate Stage 1 and 2 to be approximately 2.2 and 4.0 trips average annual daily traffic (AADT) per household, respectively.

Mr Veal modelled a series of traffic assignments to demonstrate the impacts of different trip generation rates and the effects of the construction of Indian Ocean Drive. Based on his estimated trip generation rates, Mr Veal concluded that there is no requirement to widen the sections of roads identified, provided Stage 1 of Indian Ocean Drive is constructed. However, Figure 3 "Forecast Assignment based on 2.2 Trips per Hhd per day Stage 1 and 4.0 Trips for Stage 2" (Exhibit 5) demonstrates that without the construction of Indian Ocean Drive, based on the "road width to traffic volume" requirements as prescribed by the Shire of Gingin Guidelines, there would be a need to widen the following portions of roads:
•Ocean Farm Road, east of the new north/south link (Stage 2) to 7.0 metres; and
•Nilgen Road, south of Ocean Farm Road to Sappers Road to 8.0 ‑ 9.0 metres.

Consideration of Evidence of Traffic Experts

The Tribunal was not satisfied that the methodology used by Mr Klyne to predict trip generations was representative of traffic volumes in a rural residential subdivision. The Tribunal acknowledges that the default values identified by Mr Klyne are industry accepted values for residential development, however, there was no comparative analysis carried out by Mr Klyne to show the appropriateness of these values being applied to a rural residential setting. The Tribunal also accepts Mr Veal's assertion that trip rates vary significantly depending on the type of residential lot. Mr Veal suggested that the range could vary as much as 1.5 trips to 15 trips per household.
According to Mr Klyne, his approach considered the worst case scenario looking at the highest potential for traffic generation in the context of the application. Mr Klyne referenced the default values against the two stages of Ocean Farm Estate by considering a number of factors, such as land use activities, lot size and the provision (or lack thereof) of internal amenities, and developed assumptions on the number of persons per dwelling (based on Australian Bureau of Statistics census data (ABS)) and car ownership. From this he concluded that a "fair and reasonable traffic generation rate for 'Rural Residential' development would be between 6 vehicle trips and 8 vehicle trips per dwelling unit".
The fact that the default figures correspond with the Shire's guideline figure of eight vehicle movements per lot per day (as contained in Shire of Gingin Guidelines for Road Works, Drainage and Subdivision Development) does not advance that argument as no background evidence as to the formulation of this figure was lead by the respondent. However, during the hearing Mr Klyne told the Tribunal that this figure was derived from a traffic count of two fully developed residential culs-de-sac within the townsite which, if correct, would correlate with the residential nature of the default figures.
The significant increase in the trip generation of Ocean Farm Estate Stage 1 from 1.92 to six to eight trips per household per day is questionable. The Tribunal does not accept Mr Klyne's explanation that there was no guarantee that Stage 1 of Ocean Farm Estate would remain of a rural nature. The Tribunal accepts that there may be some increase in the number of trips generated as the subdivision reaches its full potential and as further rural activities establish in the area; however, based on the lifestyles and travel patterns established over a 26 year period, there was no evidence to support an increase in trip generation of the magnitude suggested by Mr Klyne. Furthermore, the Tribunal considers Mr Klyne's use of the census data in determining trip generation to be at best general in its application, whereas a more detailed analysis of demographic characteristics of the particular locality and a comparative examination of an area reflective of the proposed subdivision, would have assisted the Tribunal in understanding the composition of a rural residential area and the likely trip generation rates that ought to be expected. This methodology would have added weight to any assertions formed based on the census data.
The Tribunal prefers the methodology used by Mr Veal in determining trip generation rates as constituting a more rigorous analysis. Mr Veal's analysis involved the collection of local data by providing a measure of two estates in the area, namely, Ocean Farm Estate Stage 1 and Seaview Park. The Tribunal accepts that Mr Veal is well qualified to carry out the type of traffic counts undertaken in the collection of data. It is noted that the traffic generation rate estimated by Mr Veal for Ocean Farm Stage 1 was within a similar range as that indicated by the Shire's traffic counts.
Mr Veal's evaluation of Ocean Farm Estate Stage 1 concluded that given the established patterns over the past 26 years, it was unlikely that there would be any substantial increase in the rate of trips generated and estimated the trip generation rate for Ocean Farm Stage 1 to be 2.2 AADT per household, which included an induced traffic factor allowing for the construction of Indian Ocean Drive. In the case of Stage 2, Mr Veal considered the results from both Stage 1 and Seaview Park and based on an evaluation of land use, location, lot sizes, lifestyles and allowing for induced traffic as a result of Indian Ocean Drive, estimated a trip generation rate of 4.0 trips per AADT per household. Mr Klyne under cross‑examination conceded that trip generation rates for Seaview Park and Stage 2 would be comparable. The Tribunal is satisfied on the evidence relating to land use and lot sizes, that there is a distinguishable difference between Stage 1 and proposed Stage 2 of Ocean Farm Estate to support a lesser trip rate per household for Stage 1.
Accepting the trip generation rates as estimated by Mr Veal and applying the threshold for widening roads as set out in the Shire's guidelines, as the road hierarchy exists (that is without the construction of Indian Ocean Drive), Ocean Farm Road (east of the new north/south link) would require widening to 7.0 metres as well as a requirement to widen Nilgen Road (south of Ocean Farm Road to Sappers Road) to 8.0‑9.0 metres. This evidence establishes a nexus between traffic generation arising from the subdivision and the need to upgrade certain roads to accommodate this increase.
Both traffic experts agreed that the construction of Indian Ocean Drive will significantly alter traffic patterns as the majority of traffic generated by both stages of Ocean Farm Estate will use Indian Ocean Drive to access its destination. As described above, Mr Klyne's predictions required substantial upgrading of existing roads within Stage 1 to accommodate the redistribution of traffic, whereas Mr Veal asserted, based on his findings, that there was no need to upgrade any roads within the Estate. For the reasons stated above, the Tribunal prefers the modelling undertaken by Mr Veal.
At this juncture, the issue before the Tribunal is whether to proceed on the basis of the existing roads or on the basis that Indian Ocean Drive will be constructed before traffic levels exceed thresholds for upgrade.
The applicant called Mr Michael Crawford, who is a project manager and consultant currently involved in the "Indian Ocean Drive" project for Main Roads WA, to give evidence on the progress of Indian Ocean Drive. Mr Crawford referred the Tribunal to a media release of the Australian Labour Party (February 2005), which announced a commitment to the construction of Indian Ocean Drive and Stage 2 of the Geraldton Southern Transport Corridor. The media release explained that Indian Ocean Drive will be built in two stages over four years, commencing in 2007. Mr Crawford told the Tribunal that $13 000 000 had been allocated to the construction of the first stage, which involved the portion of Indian Ocean Drive from KW Road connecting into the south‑western corner of Ocean Farm Estate. Mr Crawford confirmed that Stage 1 had been scheduled in the Main Road's Program of Works commencing in the financial year of 2007. He further indicated that Stage 1 is planned as a two year project. He conceded that it was possible for funds to be diverted away from the project and that greater certainty of the commencement of project transpired when appropriation of the funds occurs in the annual budget.
On this evidence, the Tribunal notes the likelihood of Indian Ocean Drive Stage 1 being constructed within the timeframes of the approval of this subdivision. However, the construction of Indian Ocean Drive is reliant on the actions of a third party and as tenders for the project have not been awarded, there remains a degree of uncertainty as to whether the construction of Indian Ocean Drive Stage 1 will go ahead and if so, when it will occur.
To overcome this uncertainty, the Tribunal considers that it would not be unreasonable to impose a condition on the approval of subdivision that links the final stage of the subdivision (refer to Figure 3.1 and Table 3.1 of Mr Veal's report) with a requirement to upgrade certain specified road if tenders for the construction of Indian Ocean Drive Stage 1 have not been awarded. An appropriately worded condition would read as follows:
"The following road upgrades are required to be completed prior to commencement of subdivisional works for the final stage of the subdivision, that being Stage 'G' as shown on Attachment 'B' of the Western Australian Planning Commission's approval dated 12 October 2004:
i)Ocean Farm Road east of the new north/south link be widened to 7.0 metres (refer to Attachment C); and
ii)Nilgen Road south of Ocean Farm Road to Sappers Road be widened to 8.0‑9.0 metres (refer to Attachment 'C');
unless tenders for the construction of Indian Ocean Drive Stage 1 have been awarded prior to the subdivisional works commencing, in which event, the requirement to upgrade the above-mentioned specified roads no longer applies."
For the above reasons the Tribunal makes the following orders:
1.The Application for Review is allowed.
2.The decision under review is varied as follows:
i)condition 3 is deleted and substituted with the following condition:
The following road upgrades are required to be completed prior to commencement of subdivisional works for the final stage of the subdivision, that being Stage "G" as shown on Attachment "B" of the Western Australian Planning Commission's approval dated 12 October 2004:
a)Ocean Farm Road east of the new north/south link be widen to 7.0 metres (refer to Attachment "C"); and
b)Nilgen Road south of Ocean Farm Road to Sappers Road be widen to 8.0‑9.0 metres (refer to Attachment "C").
unless tenders for the construction of Indian Ocean Drive Stage 1 have been awarded prior to the subdivisional works commencing, in which event, the requirement to upgrade the above-mentioned specified roads no longer applies.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER