ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION

[2021] WASAT 9

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2021] WASAT 9

MEMBER:   MS L EDDY, SENIOR MEMBER

HEARD:   16 SEPTEMBER 2020

DELIVERED          :   1 FEBRUARY 2021

FILE NO/S:   DR 210 of 2019

DR 211 of 2019

DR 217 of 2019

DR 218 of 2019

DR 219 of 2019

BETWEEN:   ERUJIN PTY LTD

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION

Respondent

Catchwords:

Town planning - Subdivision approval - Review of decision to refuse to endorse deposited plan of subdivision - Further condition of subdivision approval imposed pursuant to s 170 of the Planning and Development Act 2005 (WA) - Where failure to comply with condition of subdivision approval

Legislation:

Planning and Development Act 2005 (WA), s 143, s 145, s 145(4), s 145(4)(b)(i), s 168, s 169, s 170, s 170(1), s 170(3), s 170(3)(a), s 170(3)(b), s 170(5), s 170(6), s 251(4), s 251(5), Pt 10, Div 3, Div 6

State Administrative Tribunal Act 2004 (WA), s 31, s 47

Result:

Decision of respondent affirmed
Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	Mr P McGowan
Respondent	:	Mr J Misso

Solicitors:

Applicant	:	Rowley Legal
Respondent	:	State Solicitor's Office

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

Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; 72 SR (WA) 324

Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76

Edwards and Department of Planning and Infrastructure [2007] WASAT 101

Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57

Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. In these applications, which were heard together, Erujin Pty Ltd (applicant or Erujin) seeks review of decisions of the Western Australian Planning Commission (respondent or Commission) to refuse to endorse its approval on five deposited plans that the applicant says are in accordance with the relevant approved plans of subdivision.  The deposited plans the subject of this decision (identified as DP 414661, 414662, 414663, 414664 and 414665 and as amended by order of the Tribunal made on 16 March 2020) relate to a number of stages of subdivision that occurred in accordance with two subdivision approvals. 

2. The endorsement of the Commission's approval on a diagram or plan of survey (deposited plan) is the final stage in the subdivision process, and once the approval is endorsed, an application may be made to the Registrar of Titles for the creation or registration of a certificate of title for each of the lots depicted in the deposited plan. If the Commission refuses to endorse its approval on a deposited plan, the applicant for approval may apply to the Tribunal for review of that decision: s 251(4) of the Planning and Development Act 2005 (WA) (PD Act).

3. For the reasons which follow, the decision of the Commission to refuse to endorse its approval on each of the five deposited plans the subject of review should be affirmed.

Facts

1. The following background facts are taken from the Statement of Agreed Facts dated 13 August 2020, which the parties lodged with the Tribunal.

2. In 2012 and 2013, Erujin made two separate applications to the Commission which together provided for the subdivision of Lot 300 and Lot 1301 on Nanarup Road, Kalgan (subdivision area).  The Commission granted conditional approval to both of the subdivision applications; subdivision approval 145667 granted on 15 August 2012 and subdivision approval 148201 granted on 9 October 2013.

3. Erujin applied to the Tribunal for review of some of the conditions of both subdivision approvals and in the course of the Tribunal proceedings the Commission was invited to reconsider both subdivision approvals pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Subsequent to those reconsiderations, the Tribunal made orders by consent in each of the two applications for review varying the decision in accordance with the reconsideration decisions.

4. Each of the subdivision approvals contained a condition in relation to the construction subdivision roads (condition 5 of subdivision approval 145667 and condition 2 of subdivision approval 148201), which, after the subdivision approvals were varied by the Tribunal, were in the same terms (roadworks condition).  Both roadworks conditions provided as follows:

   Engineering drawings and specification are to be submitted, approved, and subdivisional works undertaken in accordance with the approved plan of subdivision, engineering drawings and specifications, to ensure that those lots not fronting an existing road are provided with frontage to a bitumen seal constructed road(s) connected by a bitumen seal constructed road(s) to the local road system and such road(s) are constructed and drained at the landowner/applicant's cost.  (Local Government)

5. In March 2015 Erujin provided the City of Albany (the relevant local government or responsible authority) (City) with drawings and specifications for roadworks within the subdivision area.  After the City requested amendments to the road drawings, amended road drawings were provided to the City.  On 1 May 2015 the City advised the applicant that further amendments to the road drawings were required.

6. In July 2015 the applicant sought review in the Tribunal, pursuant to s 170 of the PD Act, of the 1 May 2015 decision of the City to require further amendment to the road drawings. As a result of negotiations between the parties, in October 2015 the applicant provided further amended road drawings to the City and on 30 October the City approved those drawings. Consequently, in November 2015, Erujin withdrew its application in the Tribunal relating to the drawings and specifications for the roadworks within the subdivision area.

7. On 15 August 2018 a final inspection of the constructed subdivisional roads was carried out by representatives of Erujin and of the City.  Following this inspection, a list of works still required to be completed was provided to the applicant by the City.

8. On 28 August 2018 the applicant requested that the City advise that clearance of the subdivision conditions for which the City was the relevant clearance authority had been achieved, including the roadworks condition, so that Erujin could request approval of deposited plans from the Commission. 

9. At that time the roadworks were not complete and Erujin offered the City a monetary bond 'to provide comfort to the City that the outstanding works would be completed':  Agreed Facts at para 37.  The City responded by offering an extension of time to complete the works, of two to three months, stating that it preferred completion of the works rather than taking a bond for the value of the works.

10. By email dated 20 September 2018, the City advised the applicant that it required the payment of a defects liability bond (bond) (of 5% of the cost of the works) before it would advise that the roadworks conditions had been cleared.

11. Ultimately, '[b]y December 2018, all construction works on the roads were complete':  Agreed Facts at para 45.

12. In July 2019, Erujin again requested that the City indicate that clearance of all subdivision conditions had been achieved.  By email dated 26 July 2019 the City advised that it required compliance with its requirement for payment of a defects liability bond.  Following that, the City conveyed to Erujin, in essence, that the roadworks condition, and one other, now irrelevant, condition, had not been completed to the City's satisfaction and had not been cleared. 

13. On 28 August 2018 the applicant lodged with the respondent five applications, using the approved form, seeking the endorsement of the Commission's approval on each of five deposited plans.  A table identifying each deposited plan (using the acronym DP), the related subdivision approval and what is included in each of the deposited plans is provided in the Agreed Facts after para 46, and I here reproduce that table.

14. On 25 September 2019, the respondent advised that (Respondent's s 24 Bundle, tab 1):

    [The Commission] is not in a position to clear the conditions or endorse the deposited plans until such time as:

    1)The defects liability bond required by the City of Albany in relation to Condition 3 [now 5] of approval 145667 and Condition 1 [ now 2] of 148201, has not been paid to the City[.]

Legislative provisions

1. The process for approval of a deposited plan of subdivision is provided for in s 145 of the PD Act, which provides:

   (1)A person to whom approval of a plan of subdivision has been given may, within the prescribed period -

   (a)submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and

   (b)request the Commission to approve the diagram or plan of survey of the subdivision.

   (2)In subsection (1) -

   prescribed period means -

   (a)in relation to a plan of subdivision creating more than 5 lots, the period of 4 years after the Commission approved the plan of subdivision; and

   (b)in any other case, the period of 3 years after the Commission approved the plan of subdivision.

   (3)If a subdivision is being carried out in stages, a diagram or plan of survey of the subdivision may be submitted to the Commission under subsection (1) in relation to a stage of subdivision.

   (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)the 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 of 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.

   (5)The Commission is to try to deal with the request under subsection (1)(b) within the period of 30 days after the day on which the request is made to the Commission or within such longer period after that day as may be agreed in writing between the Commission and the person making the request.

   (6)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)If, at the expiration of the period referred to in subsection (1), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect and the diagram or plan of survey cannot be submitted to the Commission under this section.

2. The decisions of the Commission under s 145 of the PD Act are reviewable pursuant to s 251(4) and s 251(5) of the PD Act, which relevantly provide:

   (4)An applicant given approval of a plan of subdivision who is aggrieved by the Commission's decision to refuse to endorse its approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 145 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision of the Commission.

   (5)If the Commission refuses to endorse a plan or diagram of survey of a subdivision because a condition affixed to the approval of the plan of subdivision has not been complied with, an application under subsection (4) may include an application for a review of that condition.

3. In the context of this case, it is relevant to note that, at the time of approving a subdivision application, the Commission may impose conditions of subdivision approval. In addition, the relevant responsible authority, in this case the City, may impose further requirements on a person who is subdividing land pursuant to s 170 of the PD Act, which provides:

   (1A)In this section -

   responsible authority means -

   (a)in relation to land that is subject to a local planning scheme - the local government responsible for the enforcement of the observance of the scheme; and

   (b)in relation to land that is subject to an improvement scheme - the Commission.

   (1)Before a person who is subdividing land commences to construct and drain roads or construct artificial waterways shown in the diagram or plan of survey, that person is to give to the responsible authority -

   (a)drawings showing longitudinal and cross sections of the proposed road or artificial waterway; and

   (b)specifications of the proposed road or artificial waterway; and

   (c)such other information including information relating to levels, drainage, nature of soil, and physical features as the local government requires.

   (2)A person who does not comply with subsection (1) commits an offence.

   (3)The responsible authority may by written notice require the person subdividing the land -

   (a)to amend the drawings or specifications or both; and

   (b)to comply with such further conditions as the responsible authority thinks fit to impose in respect of the proposed road or waterway,

   for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission.

   (4)Without limiting the powers conferred on a responsible authority by subsection (3), where -

   (a)a person delivers drawings and specifications of a proposed road or artificial waterway to a responsible authority under subsection (1); and

   (b)the proposed road or artificial waterway, if constructed in accordance with those plans and specifications, would not satisfy the minimum standards fixed under section 169 applicable to the proposed road or artificial waterway,

   the responsible authority is to by written notice require the person to so amend the drawing or specifications, or both, as to cause the proposed road or artificial waterway to satisfy those minimum standards.

   (5)A person who is aggrieved by a requirement of the responsible authority made under subsection (3) may apply to the State Administrative Tribunal for a review, in accordance with Part 14, of the responsible authority's decision.

   (6)A person who does not comply with a requirement of a responsible authority made by written notice given to that person under subsection (3) commits an offence.

4. In this case, five separate applications have been made under s 251(4) of the PD Act, seeking review of the Commission's decision to refuse to endorse its approval on deposited plans 414661 (DR 210 of 2019), 414665 (DR 211 of 2019), 414662 (DR 217 of 2019), 414663 (DR 218 of 2019) and 414664 (DR 219 of 2019). No application has been made under s 251(5) of the PD Act. Nor does this application involve a review under s 170(5) of the PD Act.

Submissions

1. In its Statement of Issues and Contentions dated 20 August 2020 (Exhibit 3), the applicant made a number of submissions in support of its application.  The applicant's counsel also made extensive oral submissions at the final hearing.  I have carefully considered all of those submissions in detail.  For the purposes of these reasons, a short form summary of the applicant's submissions is as follows.

2. There was a negotiated agreement between Erujin and the City in relation to a number of conditions of each of the two relevant subdivision approvals, which resulted in the Tribunal making orders varying the conditions of each of the subdivision approvals, including, the roadworks conditions. Negotiations in relation to the roadworks conditions and negotiations as to what was required under s 170 of the PD Act occurred, and final road construction drawings were ultimately approved as a result of those negotiations. Nothing was said at the time of the agreement between the parties about the need to pay any bond.

3. No mention of the need to pay any bond in relation to the construction of subdivision roads was made until September 2018.

4. The City was either functus officio at the time it sought to require the payment of bonds for the subdivision roads; or it was no longer reasonable; or it was an abuse of process for the City to seek to claim the bond given the time that had elapsed since the agreement in relation to the roadworks conditions and/or since the time the roads had been constructed.

5. A bond in relation to road construction, if payable, is held by the City for 12 months.  The construction of the subdivision roads was complete in August 2018.  The claim for a bond now, being more than 12 months after the roads had been constructed is unreasonable and of no utility in the circumstances.

6. The respondent submits that, given that the application for review is made only under s 145(4) of the PD Act, the only question raised for determination in these proceedings is whether the Tribunal, standing in the shoes of the Commission, is satisfied that the conditions of the subdivisional approval have been or will be complied with at the time a certificate of tittle is created or registered. The Commission says that the respondent's submissions largely amount to a collateral attack on the validity of the notice issued by the City under s 170(3) of the PD Act requiring the payment of a bond, which is not an issue that the Tribunal has power to determine; citing Edwards and Department of Planning and Infrastructure [2007] WASAT 101 at [24] and Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; 72 SR (WA) 324 at [26].

7. The respondent submits that if the Tribunal is satisfied that the City has given to Erujin a written notice under s 170 of the PD Act requiring the applicant to pay a bond in accordance with a condition of subdivision, and that the bond has not been paid, then it must determine that the relevant condition simply has not been satisfied. The Commission relies on the decision of the Court of appeal in Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196 (Stream Focus) to support its position that a subdivision condition in the terms of the conditions under consideration in these applications does contemplate and allow the City to require payment of a bond in relation to the construction of roadworks.

8. Finally, on an alternative basis, the respondent submits that the City was not functus officio at the time it gave the written notice requiring the payment of a bond and that there was no abuse of process involved.

Disposition

1. In order to understand whether the relevant conditions have been complied with, it is necessary to understand what the conditions require.

2. An almost identically worded condition was the subject of consideration by the Court of Appeal in Stream Focus.  The only difference between the conditions is a reference to the roads being bitumen seal roads in the conditions under consideration in this matter, which reference is missing from the condition under consideration in Stream Focus.  The parties did not assert that the conditions in question in these proceedings should be understood differently to the condition under consideration in Stream Focus.  The Tribunal's construction of the condition as requiring that roads be constructed and drained to an adequate standard at the appellant's cost was not challenged in the Court of Appeal in Stream Focus; see Stream Focus at [40].

1. The question under consideration in Stream Focus was whether two 'further' conditions imposed by the Tribunal under s 170(3)(b) of the PD Act, one of which required the payment of a defects liability bond, were conditions that were imposed for the authorised purpose of ensuring that the construction and drainage of the road in question was consistent with the approval of the Commission. Given the understanding of what the original condition required that was reached, the Court of Appeal was satisfied that the imposition of the condition requiring the payment of a defects liability bond was imposed for the purpose of ensuring that the construction and drainage of the road was consistent with the approval of the Commission.

2. The 'further' conditions that may be imposed under s 170(3) of the PD Act, when read in context, must be further conditions of subdivision. Section 170 specifically states that the 'further' conditions may be imposed on a person subdividing land: s 170(1) and (3). Section 170 is contained within Pt 10 which relates to subdivision and development control. The word 'conditions', although not defined, is used consistently throughout Pt 10 of the PD Act. A plan of subdivision may be approved with a requirement that the applicant for approval may be required to comply with such conditions as the Commission thinks fit: s 143 of the PD Act. A number of specific conditions of subdivision are provided for in Div 3 of Pt 10 of the PD Act. Section 170 is not within that division, however it is in Div 6 of Pt 10, which provides for a number of matters, including provisions about the creation of roads and waterways on subdivision (s 168), the minimum standards of construction of roads and waterways (s 169), and the requirement for drawings and specifications of roads and waterways (s 170). Although s 170(6) of the PD Act refers to a 'requirement of a responsible authority made by written notice give to that person under subsection (3)', I do not think this alters the otherwise plain meaning of the term 'condition' as used in s 170(3) of the PD Act. Section 170(3) of the PD Act allows one or both of two things to be required by the responsible authority. It may require the amendment of drawings or specifications or both (s 170(3)(a)), or it may require the compliance with 'such further conditions as the responsible authority thinks fit to impose' (s 170(3)(b)).

3. There does not seem to be any room for dispute in this matter that the relevant conditions imposed on the applicant's subdivision approvals required subdivision roads to be constructed and drained to an adequate standard.  Applying the authority of Stream Focus, ordinarily such conditions allow the imposition of further conditions under s 170 of the PD Act for the authorised purpose of ensuring that construction and drainage of subdivision roads is consistent with the subdivision approval, that is, that the construction and drainage reaches the required adequate standard.

4. In 2015, the City exercised its power under s 170(3)(a) of the PD Act to require Erujin to amend the drawings and/or specifications of the subdivision roads. An application for review of the exercise of that power was commenced in the Tribunal and later withdrawn after a negotiated agreement had been reached. The applicant asserts that in this context, the City could not, or should not, be able to later seek to impose a further requirement on the applicant under s 170(3) of the PD Act.

5. Nonetheless, rightly or wrongly, the City has imposed a 'further condition' of subdivision under s 170 of the PD Act. Thus the roadworks conditions include the further requirement that the subdivider provide a defects liability bond.

6. As this matter involves an application for review under s 251(4) of the PD Act, and not an application for review of the requirement of a responsible authority to impose a requirement under s 170(3) of the PD Act, nor an application for review of a condition under s 251(5) of the PD Act, it is necessary to consider the matter within the correct context.

7. There is no argument in this case that the conditions in question are not relevant to the stages of subdivision to which each of the five deposited plans or diagrams of survey relate:  cf Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76; Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57.

8. There is no dispute that the City notified the applicant in writing that it required Erujin to provide a defects liability bond as a further condition of the subdivision approvals pursuant to s 170(3) of the PD Act. It is also not in dispute that the defects liability bond was not provided to the City by Erujin. The Tribunal is satisfied that a condition of the subdivision approvals in question has not been complied with and will not be complied with at the time the certificates of title would be created or registered.

9. On the face of it, in those circumstances, the correct decision is to refuse to endorse the plan or diagram of survey, as the Commission did. 

10. The applicant seeks to raise the question of whether the City's decision to impose the condition that has not been complied with was a valid or proper decision (because the City[1] was functus officio, because it was acting unreasonably, or its actions were an abuse of process).  That question in essence seeks to agitate whether the City was acting ultra vires or otherwise invalidly.  Issues of that nature are not for the Tribunal to determine in proceedings such as these.  The Tribunal does not have a role in the nature of judicial review of an original decision­maker's decision.  Nor does it have the power to consider those particular issues, to the extent that they that might impact on the substantive merits of the decision, where that decision­maker's decision is not the subject of the review proceedings in the Tribunal.

    [1] It is relevant that the City is a third party, and not one of the parties to the review application, as the Tribunal clearly does have power, in relevant circumstances, to consider, for example, whether the actions of a party are an abuse of process: s 47 of the SAT Act.

11. If I am wrong, and there is a residual power in the Tribunal to determine whether the City's decision to require the payment of a defect liability bond pursuant to s 170(3) of the PD Act, I am not persuaded that there is anything, in terms of apparent lack of planning merit, about the City's decision in this case that would enliven any discretion in the Commission[2], and in its shoes, the Tribunal, to endorse a plan or diagram of survey despite a known/admitted lack of compliance with a condition of subdivision approval, in the course of exercising the power in s 145(4)(b)(i) of the PD Act.

Conclusion

[2] For the sake of clarity, I do not, for the purposes of this matter, decide or assume that there is, in fact, any such discretion.

1. On the basis that the Tribunal is satisfied that not all of the conditions of the Commission's subdivision approvals 145667 and 148201 have been complied with, or will be complied with at the time a certificate of title will be created or registered, the Tribunal has determined that the correct and preferable decision in the circumstances of this case is to affirm the decision of the respondent to refuse to endorse its approval on the five deposited plans identified as deposited plans 414661, 414662, 414663, 414664 and 414665.

Orders

1.The decisions of the respondent to refuse to endorse the deposited plans identified as DP 414661, 414662, 414663, 414664 and 414665 and as amended by order of the Tribunal made on 16 March 2020 are affirmed.

2.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

FM

Secretary

1 FEBRUARY 2021