Harmer & Anor and Western Australian Planning Commission
[2007] WASAT 250
•28 SEPTEMBER 2007
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | HARMER & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 250 |
| MEMBER | : | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 28 SEPTEMBER 2007 |
| FILE NO/S | : | DR 8 of 2007 |
| BETWEEN | : RICHARD HARMER |
CORRY HARMER
Applicants
AND
WESTERN AUSTRALIAN PLANNING
COMMISSIONRespondent
Catchwords:
Subdivision condition - Construction and drainage of existing road - Lacking finality - Uncertainty - Relevance, reasonableness and fairness - Advice notes - Planning framework - Road standard - Shire's general sealing programme - Residential lots - Traffic generation
Legislation:
Planning and Development Act 2005 (WA), s 143, s 158, s 159
[2007] WASAT 250
Residential Design Codes of Western Australia (2002)
Shire of Mundaring Town Planning Scheme No 3
Result:
Application upheld in part of new condition
Category: B
Representation:
Counsel:
| Applicants | : | Mr M Hardy |
| Respondent | : | Ms T Cole |
Solicitors:
| Applicants | : | Hardy Bowen |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004]
HCA 63
[2007] WASAT 250
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1 The applicants sought review of the decision of the respondent to
impose a condition of subdivision approval requiring that the applicants make arrangements with the local government for the construction and drainage of an existing road servicing the subdivision.
2 The applicants challenged the validity of the condition on several
grounds, contending that it was uncertain, lacking in finality and possibly beyond power. The applicants also challenged the methodology of implementing the condition by the use of "advice notes" appended to the subdivision approval. Finally, the applicants disputed the proposed requirements for construction and drainage of the road in question on grounds that those requirements listed by the respondent are unreasonable, unfair and onerous to the applicants.
3 The Tribunal accepted the argument of the applicants that the
condition in its present form was uncertain and lacking in finality, but not that it was beyond power to impose a more suitably worded condition designed to achieve the object.
4 The Tribunal concluded that the application for review should be
upheld, in part, and that the present condition should be deleted in favour of a condition more precisely worded to reflect the standards and outcomes expected in order to implement the condition.
5 The Tribunal agreed that the respondent's intended requirements of
the applicants for the construction and drainage of the road were shown to be fair and reasonable and should constitute the basis of the substituted condition.
Introduction
This is an application for review of the decision of the respondent to impose a condition upon its approval of the subdivision of Lot 221 William Road, Mount Helena (the land) in the Shire of Mundaring, requiring that the subdivider should make arrangements with the local government for the construction and drainage of William Road fronting the land.
The applicants sought approval for subdivision of the land into eight lots and public open space on 11 October 2005.
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The respondent approved the subdivision conditionally on 11 January 2006.
9 Upon subsequent requests by the applicants, the respondent reviewed
the suitability of various conditions of the subdivision approval including the appropriateness of Condition 2 specifying the requirement for construction and drainage of William Road.
On 2 January 2007 the respondent gave notice of its decision to maintain Condition 2.
11 On 8 January 2007 the applicants lodged an application with the
State Administrative Tribunal seeking review of the respondent's decision to impose Condition 2.
The proposed subdivision and its context
12 Lot 221 William Road is a 2.07 hectare triangular-shaped lot located
at the western extremity of a larger triangular street block comprising a total of four lots of generally similar size and character. The street block is bounded by Alfred Street to the north, Alison Street to the east and William Road which forms the south-western boundary of the block.
13 The street block constitutes the as yet unsubdivided northern
extremity of the Mount Helena urban village which is located in a generally rural, bushland environment. Land to the south within the village is characterised by residential lots of 2000 square metres to 3000 square metres. Land to the north and otherwise surrounding the Mount Helena village comprises rural lots ranging upwards of 2 hectares.
14 William Road is constructed as an unkerbed gravel formation from
its intersection with Alison Street and extends in that form across the frontage of Lot 221 for about 120 metres, affording a connection to Samuel Street to the south. The status of the balance of William Road along the remaining frontage of Lot 221 westwards is not entirely clear but appears to be reasonably described as an informal compacted dirt track.
15 The proposed subdivision of Lot 221 is intended to create
eight residential lots ranging in area from 2009 square metres to 2826 square metres, together with a reserve of 2076 square metres of public open space. A dwelling situated on the land is to be retained and incorporated into one of the lots. All of the lots will obtain access from
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William Road although five lots will have frontage northwards to an unconstructed section of Alfred Street.
Town planning scheme and policy instruments
16 Lot 221 William Road is zoned Residential under the provisions of
the Shire of Mundaring Town Planning Scheme No 3 (TPS 3). The density code assigned to the land by TPS 3 in accordance with the Residential Design Codes of Western Australia 2002 is R5, thus allowing for subdivision on the basis of a minimum lot size (or site area per dwelling) of 2000 square metres.
17 Local Subdivision and Infrastructure Plan No 249 (LSIP 249) was adopted in 1997. LSIP 249 is a plan prepared under TPS 3 illustrating the form of residential subdivision expected for the William Road street block. The subdivision proposal for Lot 221 conforms with LSIP 249.
18 Statement of Planning Policy No 1 - State Planning Framework (SPP 1) establishes key principles for land use planning and development. The Policy provides that:
"Planning should ensure that physical and community infrastructure by both public and private agencies is co-ordinated 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 ..."
Western Australian Planning Commission Policy No DC 1.1 Subdivision of Land – General Principles (DC 1.1) sets out the following relevant policy objectives to be taken into account in determining applications for subdivision:
"(a) To facilitate appropriate access and movement systems for all modes of transport.
(b)
To ensure constructed vehicle access from the gazetted public road system to each new lot.
(c)
To make appropriate arrangements for development contributions, where necessary and relevant, for the orderly and proper planning of the locality containing the subdivision."
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DC 1.1 provides further that:
"(3.7.1) New green title lots will be created only where each lot has, or can be, provided with direct frontage access to a constructed public road, which is connected to the road system of the locality. This is to ensure the provision of public utility and other services as well as to provide vehicular and pedestrian access to the lot. (3.7.2) Where new roads are needed, the subdivider will be required to dedicate, construct and drain these roads to the specification and satisfaction of the WAPC on the advice of the local government. The WAPC may also require existing roads or rights of way to be widened, constructed, upgraded or dedicated to ensure compliance with this policy."
Western Australian Planning Commission Policy DC 1.7 - General Road Planning (DC 1.7) provides that:
"(3.2.1) Existing roads shall be required to be constructed or upgraded as a condition of subdivision, where the Commission and the road authority agree that the subdivision should not proceed unless the construction or upgrading occurs. In imposing this condition the Commission and the road authority should be satisfied that the existing roads are either substandard or inadequate to accommodate the additional traffic generated from the subdivision and associated development. (3.2.2) The condition will normally require the applicant to enter into satisfactory arrangements with the road authority for the construction/upgrading of the relevant road. The responsibility for the design and construction of the works is a matter for negotiation between the applicant and the road authority. (3.2.3) If the road authority is not in a position to immediately carry out the construction or [2007] WASAT 250
upgrading, the subdivider must undertake either of the following to allow the subdivision to proceed:
• carry out the works to the satisfaction of the road authority; or • contribute to the cost of the works by either cash payment or other means acceptable to the road authority (eg bank guarantee). The contribution should be based upon an amount equal to the road authority's estimated cost to undertake the works at the date of clearance of the road upgrading/construction condition by the local government.
(3.2.4) Provision exists under [s 159 of the Planning and Development Act 2005] to enable a subdivider to claim a portion of the cost of providing an existing road from subsequent subdividers that abut the road. This is providing the subsequent subdividers have not already contributed to the cost of providing the road."
22 Planning Bulletin No 18 - Development Contributions for
Infrastructure (PB 18) provides guidance in relation to the application of developer contributions, contribution arrangements and methods of contribution. In this respect the following principles outlined in PB 18 are relevant to this issue:
"• the subject subdivision must create or contribute to the need for the particular infrastructure or facility for which the contribution is being sought; • the contribution must be fair and reasonable and reflect the true costs of the infrastructure or facility; • the contribution should be fairly apportioned between multiple land owners proportional to the share of the need created by each landowner's subdivision; • a financial contribution must be spent within a reasonable period of time; and [2007] WASAT 250
• there should be accountability in the manner in which contributions are determined and expended."
The decision of the respondent
23 The respondent approved the application for subdivision of
Lot 221 William Road into eight residential lots and a reserve for public open space subject to a number of conditions, including condition No 2 which requires:
(2) Arrangements being made with the local government for
the construction and drainage of William Road.
Advice notes appended to the approval state that:
In relation to Conditions 1 and 2, the Shire of Mundaring advises that the subdivider is required to:
• construct William Road to 10 metres west of the eastern boundary of proposed Lot 1. • construct a suitable turning area at the termination of William Road; and • design and construct a piped drainage system for William Road.
The local government's expectation with respect to Condition 2
25 The respondent has submitted that the Shire expects that the
following will be required of the applicant in order to fulfil the obligations
of Condition 2:
(a)
The applicant is responsible for 100% of the cost of constructing William Road from a general seal to a residential standard, including a cul-de-sac, westwards from the westward boundary of Lot 41 to access the proposed lots (marked blue on attached Plan A submitted by the respondent).
(b)
The applicant is responsible for 50% of the cost of constructing William Road from a general seal to a residential standard from the western boundary of Lot 41 to the eastern boundary of the subject property (marked orange on Plan A).
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(c) The applicant is required to provide a pro rata contribution (8/44 share) to the Shire towards the upgrading/construction of William Road from Dickson Court to Alison Street (marked yellow on Plan A). (d) The applicant is to engage a consultant to undertake the full design of the 580 metre length of William Road on a cost share basis with the Shire. The Shire will contribute towards the design costs as follows:
• 50% of 84m/580m (marked orange on Plan A); and • 6/44 of 374m/580m (marked pink and yellow on Plan A).
26 The applicants have submitted that the estimated cost to the
applicants of the obligations would be $96 280 for part (a), $34 860 for
part (b) and $45 273 for part (c).
The respondent's argument
The respondent contends that a condition of subdivision approval
should:
• have a planning purpose; • fairly and reasonably relate to the proposed development; and • be not so unreasonable that no reasonable planning authority could have imposed it. Western Australian Planning Commission v Temwood
Holdings Pty Ltd [2004] HCA 63 at [57]
28 The respondent argues that the imposition of Condition 2 and the
mechanics of its application are relevant, fair and reasonable and
consistent with the respondent's relevant policies.29 The intent of Condition 2 is to ensure that the proposed lots resultant
from subdivision of Lot 221 are serviced with a road that is constructed to an acceptable and appropriate standard for the increased use of William Road generated by the subdivision.
[2007] WASAT 250
30 Illustrating that other subdivision applications in the locality are
being similarly treated, the respondent has cited that approval has been granted for the subdivision of adjacent Lot 222 in order to create eleven lots subject to a condition, similar to Condition 2, requiring arrangements being made with the local government for construction of Alfred Road and upgrading of Alison Steet.
31 A current application for Lot 223, also adjacent and with frontage to
William Road, is anticipated to be determined using the same principles of road construction and upgrading responsibilities as applied to Lot 221.
32 The rationale for imposition of Condition 2 upon the subdivision of
Lot 221, and similar conditions relative to the subdivision of other lots in the locality, is predicated on the policy objective expressed in DC 1.1 to the effect of ensuring "constructed vehicle access from the gazetted public road system to each new lot". Additionally, the respondent points to Policy DC1.7 requiring that existing roads "be constructed or upgraded as a condition of subdivision" if the existing roads are "substandard or inadequate to accommodate the additional traffic generated from the subdivision ..."
33 In this case, the respondent argues the upgrading of William Road to
a "general seal" standard will be adequate for pre-existing demands (about eight residences rely on William Road at present) and this upgrade will be undertaken by the Shire. A "general seal" standard road is understood to be a formation of 5.5 metres width, two coats of blue metal seal and with 1.2 metre shoulders.
34 However, the proposed subdivision creates a need, by virtue of
additional traffic generation, for an upgrade from a "general seal" standard to a "residential" standard road. A "residential" standard road is a 6.1 metres wide, kerbed, asphalt road with formal stormwater drainage.
35 Traffic generation can be quantified as approximately 10 vehicle
trips per day per residential lot. Thus an addition of seven new lots resultant from the subdivision of Lot 221 would generate some 70 additional vehicle movements per day. These additional vehicle movements are likely to disturb a blue metal sealed road which is then likely to become pot-holed, damaged and require maintenance at an earlier stage than otherwise reasonably expected.
36 The number of residential lots expected to be serviced by
William Road will further increase consequent to the subdivision potential under the prevailing residential zoning and R5 density coding of the
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locality. The Local Subdivision and Infrastructure Plan No 249
(LSIP 249) adopted for the street block illustrates the increased potential.37 The respondent therefore argues that the standard of William Road
should be increased to a "residential" standard to provide for the expected traffic volumes generated by subdivision and the safety and amenity expectations of future road users.
38 The respondent has noted the past constraint on subdivision of lots
with frontage to William Road caused by the presence of kennels on Lot 94 at the eastern end of William Road. The respondent advises, however, that the owner of the kennels in question is seeking to move the kennels out of the residential area in the circumstance that the Shire is presently amending TPS 3 with a purpose of allowing greater flexibility for the business to be permitted in other rural parts of the Shire. It can therefore be expected that the presence of the kennels will not be a constraint on future subdivision along William Road as anticipated by LSIP 249.
39 The respondent addressed the specific contributions required of the
applicant to implement the construction/upgrading requirements with the
following rationale:
• The applicant should pay for 100% of the cost of constructing William Road west of Lot 41 (marked blue on Plan A) because direct frontage access to all the lots in the subdivision is gained from this section and no other lots in William Road rely on it for access. • The applicant should contribute 50% of the cost of constructing William Road from the west boundary of Lot 41 to the eastern boundary of Lot 221 (marked orange on Plan A) because vehicular access to the proposed lots is reliant on this portion. Existing lots to the south also have reliance on this portion, thus the applicant is contributing to a shared cost. • The applicants should provide a pro rata contribution (8/44th share) to the Shire towards the upgrading/construction of William Road from Dickson Court to Alison Street (marked yellow on Plan A) because vehicular access to the subdivision is reliant on that portion together with other residents of William Road. The Shire and the landowners adjacent to [2007] WASAT 250
the applicant who utilise this portion of William Road for vehicular access to their lot will contribute the remaining 36/44th share of construction.
• The applicant should prepare the design of the construction of William Road on a cost share basis with the Shire because design is an associated cost of construction.
The contributions sought are relevant, fair and reasonable and consistent with the respondent's policies.
The applicant's argument
41 The applicant argues that Condition 2 lacks finality and is uncertain.
The respondent's supplementary advice notes do not constitute a proper "determination" by the respondent. The only determination of Condition 2 is to "make arrangements" with the Shire. In this regard the lack of finality is undesirable because the effective decision is to be made by a third party (the Shire) which of itself cannot be the subject of review.
42 The condition is also uncertain because no context can be ascertained
to establish a basis of determination.
43 The applicants contend, on the basis of a number of cases cited, that
the condition would be void if it is not consistent with the application of sound town planning principles and reasonably capable of being regarded as relevant to the implementation of planning policy.
44 If the purpose of the condition is other than void, however, then the
question is what arrangements would be appropriate for the purpose of eliciting a contribution for the construction and drainage of William Road in a certain and acceptable manner.
45 The applicants also suggest that the validity of the condition is
dependent upon demonstrating the proper nexus between the condition
and the needs generated by the subdivision.46 The applicants argue that the Shire is unfairly relying on road
upgrading contributions from future subdivisions in and around the William Road locality, rather than by addressing the need for road upgrading in its general sealing programme having regard to commercial uses in the locality (a kennel development) and the presence of existing residences.
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47 To illustrate this unfairness, the applicants point out that the Shire's
general sealing programme, adopted in May 2006, identifies William Road (east) as priority No 12 to be upgraded to only a "general seal" standard, rather than a "residential" standard which might be expected in a residentially zoned area. The reasons given by the Shire (documented in an officer's report to the Council of the Shire) why William Road had not been upgraded at all to date was solely because of the subdivision potential of Lot 221 and Lot 223 and the expectation that the subdividers would contribute to the bulk of road upgrading costs.
48 With regard to the particular Shire requirements for construction of
William Road, the applicants consider the obligations being attributed to the subdivision, including road design, construction and pro rata contributions, are excessive and beyond that which could be reasonably related to the needs generated by the subdivision. In this regard the applicants cite:
• the opportunistic timing of the Shire and its acknowledgement that it was departing from its municipal obligations in favour of prospective subdividers assuming the burden of road upgrading. • a previous subdivider was required to construct Dickson Court (off William Road) but that has not been constructed to a "residential" standard. • no obligation placed on previous subdividers to design William Road. • the lack of analysis demonstrating the generation of traffic from existing lots on William Road and Samuel Street. • advice from the Shire refers to contributions by other subdividers towards Alison Street, but this road is not yet designed. • Samuel Street is identical to the eastern section of William Road but is unaffected by the presence of the kennel development. No upgrading of Samuel Street has occurred.
49 The applicants suggest that it would be appropriate for the road to be
constructed to "special seal" standard with an appropriate contribution
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(but not the whole of the costs) being made by the applicants to upgrade
relevant sections of William Road.50 In the view of the applicants, the role of the Tribunal is to impose a
suitable condition. The applicants submit "that a suitable condition in these circumstances is to contribute on a linear prorated basis to the design of the construction of William Road from the intersection of Bunning Road to the eastward boundary of the Land (Lot 221) and to make a contribution to the upgrading of that portion of William Road from "general seal" standard on the assumption that the Shire will bear the cost of construction to that standard".
51 The applicants further addressed the submissions of the respondent,
particularly in relation to the local government's requirements for contributions for upgrading William Road. In this regard the applicant expressed the view that the cost of constructing the cul-de-sac turning circle should be shared with the local government because it is 'required for all road users and, as a consequence, ought to be the responsibility of the local government'.
52 The applicants expressed the view that the William Road/Samuel Street junction (36 metres marked in blue on Plan A) should be included in the 'orange' section.
53 The Samuel Street junction is presently closed, but in the future
Samuel Street will need to be reopened to relieve traffic on William Road and Alison Street. In that event there is no justification for the applicant to contribute towards the cost of constructing William Road adjacent to the kennel premises between Dickson Court and Alison Street (marked yellow).
54 The applicants suggest that the cul-de-sac turning circle could be
constructed as part of the William Road/Samuel Street junction and thus the western end of William Road (east) would service only one or two lots. It would therefore be unreasonable for the 100 metres of road marked 'blue' on Plan A to be constructed to a "residential" standard.
55 The applicants argue that any contribution for the "yellow" section of
road should be based on a road upgrade from "general seal" to "residential" standard based on the expectation that the local government is responsible to construct roads to a "general seal" standard in its road construction programme. Notwithstanding, the applicant argues that the construction of the road to a "general seal" standard would be more than
[2007] WASAT 250
adequate for the proposed subdivision, which will only create six extra
dwellings.
Analysis
Three issues arise in relation to this review:
1. Whether a condition requiring the construction of William Road can validly be imposed on the subdivision approval, having regard to the lawful and proper exercise of powers by the planning authority. 2. If the answer to the first question is affirmative, is Condition 2 as it is presently composed appropriate? 3. If the answer to the second question is negative, what alternative construction of Condition 2 would be appropriate for substitution?
57 The applicants have raised the above issues in the general thrust of
their argument to the purpose of suggesting that the condition in question should be disposed of or recomposed in a more certain and less onerous form.
58 On the first question, there is no doubt that the power to impose
conditions upon subdivision is conferred on the respondent under s 143 of the Planning and Development Act 1995 (WA). The Act also addresses, at s 158, the various obligations of a subdivider required to construct and drain roads at his or her expense.
59 Section 159 of the Act also deals with matters arising in respect of
cost recovery from a later subdivider by a subdivider who was originally required to bear the cost of providing or upgrading, or contributing to the provision of or upgrading of, an existing road in connection with a subdivision.
60 It is very apparent therefore that the Act is designed to deal with the
imposition of subdivisional conditions requiring road construction, upgrading and arrangements for contributions to existing roads in connection with a subdivision. It would seem therefore that the respondent is well within a head of power to impose a condition requiring the construction of William Road.
61 As to whether the subdivision of Lot 221 creates the need for
William Road to be constructed, the respondent has set out in some detail
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the argument for upgrading the road from a "general seal" standard to a "residential" standard. In addition the respondent has referred to the relevant policy framework and the consistency of its approach in respect of requirements for road construction/upgrading with those policy requirements, both in respect of this application and in respect of other applications in the locality.
62 Other than the question of the condition being beyond power, the
applicant has not seriously challenged the proposition that William Road should be upgraded in order to service the subdivision. The applicant has, however, questioned the methodology and the conclusions reached by the Shire in arriving at a standard of road to be provided and the quantum of which is expected to be provided by the applicant. In this regard the applicants have pointed out that the Shire has been opportunistic in relying on subdividers to undertake the upgrading of William Road, and additionally, there has been no analysis demonstrating the generation of existing traffic from William Road and Samuel Street in order to base measure the impact of new lot traffic generation in the area.
63 The applicants have argued that Condition 2 lacks finality and is
uncertain. The advice notes are not integral to the condition. The notes are not a lawful instrument and therefore, in themselves, carry no weight. On this argument the Tribunal agrees that without reference to the advice notes, the condition, by itself, is so loosely couched that it can be interpreted to mean any degree of responsibility could be assumed by either of the parties (the subdivider and the road authority) for the construction of William Road. In the Tribunal's view this is unsatisfactory because the outcome of an arrangement required by the condition therefore has the potential to be unfairly and unreasonably concluded. On this basis, the condition would not pass the test agreed by both parties that a condition of subdivision must fairly and reasonably relate to the proposed development and be not so unreasonable that no reasonable planning authority could have imposed it.
64 It follows from the above that the applicants' argument as to the
inappropriate composition of Condition 2 should be sustained. Such a conclusion does not, however, necessarily dismiss the outcomes sought by the respondent in respect of imposing a road condition, but rather, points to the need to further address the requirements for fairness, reasonability and ultimately, the certainty of the condition.
65 The applicants have argued that the level of obligation on the
subdivider to construct and contribute to the upgrading of William Road
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as required by the Shire, is excessive and therefore unfair and
unreasonable.66 The applicants consider it would be appropriate for William Road to
be constructed to "special seal" standard with an appropriate contribution
by the applicant towards its upgrade.67 The applicant submits that "a suitable condition in these
circumstances is to contribute on a linear prorated basis to the design of the construction of William Road from the intersection of Bunning Road to the eastward boundary of the land and to make a contribution to the upgrading of that portion of William Road from "general seal" standard on the assumption that the Shire will bear the cost of construction to that standard".
68 The respondent's argument supports the Shire's requirements to
implement the condition. In this regard the Shire's requirements for Conditions 1 and 2 appear to have been based on the application of s 3.7 of Policy DC1.1 and s 3.2 of Policy DC1.7.
69 The applicants have not challenged the respondent's policy
framework, rather the challenge is against the standard of roadworks required and the extent of the subdividers' obligation to construct and/or contribute to those works.
The Tribunal's assessment of these differing propositions is therefore logically measured against the provisions of the policy framework.
71 The question of the expected road standard to be relied on by new
lots generated by the subdivision is, in the Tribunal's view, substantially governed by the zoning of the land, the nature of the lots being created by the subdivision and the traffic generation characteristics of the accumulated lots in the area. Having regard to these factors, the Tribunal has little difficulty in concluding that the locality is intended to be residential in character and is progressively becoming more so. The subdivision is residential in nature and will add significantly to the road access requirements of the area. In these circumstances there is no doubt that a standard of road should be provided that meets normal residential expectations.
72 The question of what is a reasonable extent of obligation of the
subdivider to construct and/or contribute to the provision of the road servicing the subdivision is, of course, influenced by the conclusion that the standard of road required should be "residential".
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73 The Tribunal accepts the respondent's proposed formula for cost
contribution in terms of logic, fairness and reasonableness. In essence, if the formula is applied consistently, the owner/subdividers of properties to be subdivided onto William Road will be sharing the cost of the design and upgrading of William Road from a "general seal" standard to a "residential" standard of sealed, kerbed and drained road. In considering this formula, the Tribunal accepts that the present level of road access for the locality, which is substantially characterised by small rural lots generating a low volume of vehicular traffic, should be of a standard less than "residential." The "general seal" standard proposed by the Shire appears to be an adequate level of service prior to residential subdivision.
74 The applicants' proposition, by contrast, would result in newly
created residential lots relying on a substandard roadway without prospect for a future sharing of costs towards provision of a "residential" standard road to serve the expected urban development of William Road. Plainly, this outcome would be undesirable.
75 The applicants' argument, that the modest number of extra dwellings
generated by the subdivision are insufficient to warrant a 'residential' standard of road service, is rejected. To accept such an argument would establish a precedent whereby any small subdivision in a residential area would be characterised by substandard access provision notwithstanding the reasonable expectations of the residents of that neighbourhood.
76 The applicant also argued that an alternative road access arrangement
could be configured, such that the proposed subdivision would require a lesser level of service from the road system of the area as otherwise intended by the local government. The Tribunal rejects this argument for the reason that this application for review is not in a position to review the road planning proposals of the locality or to challenge the competency of the local government in its road and traffic management responsibilities. The oversight of the design and planning of local roads is properly the responsibility of the local government in terms of traffic management and road hierarchy access systems. The intended configuration of road access to the subdivision as required by the local government is therefore accepted by the Tribunal.
77 The argument by the applicant that the proposed cul-de-sac turning
facility should be a shared cost is not supported. The Tribunal is not persuaded that the turning facility represents anything other than normal road infrastructure servicing the lots to be created as a result of the subdivision. In this case, the turning facility is a punctuation of a
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carriageway which, in other circumstances, presumably would be
expected to continue for the full length of William Road.78 The Tribunal finds that the respondent's position in respect of the
requirements for construction/upgrading of William Road are reasonable,
equitable and sensible.
It now remains for the Tribunal to consider a suitable construction of Condition 2 in order to reflect the consequence of the preceding analysis.
80 In this regard, the Tribunal's intention is to ensure that Condition 2
provides for certainty, fairness and reasonableness contained within the
condition and its references.81 For the purposes of this review, the Tribunal is satisfied that the
proposed contributions for the different sections of William Road required of the applicants by the Shire described earlier in this report are appropriate. Accordingly, the Shire's proposed contribution arrangements would, subject to suitable wording, satisfactorily constitute the terms of the proposed new Condition 2.
Conclusion
82 For the reasons outlined in the Analysis section of this report, the
Tribunal concludes that the application for review of the respondent's decision to impose Condition No 2 upon the approval of the subdivision of Lot 221 William Road requiring:
2. "Arrangements being made with the local government for the construction and drainage of William Road"
should be upheld, in part, to the effect that the condition should be deleted
from the respondent's approval.83 Condition No 2 should be replaced by a new condition which
precisely and comprehensively reflects the fair and reasonable requirements of the Shire, generally as set out in the Respondent's Argument section of this report.
| Orders |
1. The application for review is allowed in part.
2. The decision of the respondent made on 11 January 2006 to affix Condition No 2 on the granting of subdivision
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approval of Lot 221 William Road, Mount Helena, is
varied as follows:(i) Condition No 2 is deleted and replaced with the following condition:
(2) William Road is to be designed, constructed and drained to the appropriate standard and specification of the local government. The scope and proportional share of the works and/or cost contributions to be undertaken by the applicant for the design and construction of the road shall be as follows: (i) The applicant is responsible for contributing 100% of the cost of upgrading/constructing the portion of William Road westwards from the western boundary of Lot 41 (marked blue on Plan A appended to these Orders) from a "general seal" standard road to a "residential" standard. A "residential" standard cul-de-sac turning facility shall be included in the upgrading of this portion of William Road.
(ii) The applicant is responsible for contributing 50% of the cost of
upgrading/ constructing William Road from a "general seal" standard to a "residential" standard from the western boundary of Lot 41 to the eastern boundary of the land (marked orange on Plan A).
(iii) The applicant is responsible for a pro- rata contribution of 8/44 share of the cost of upgrading /
constructing William Road between Dickson Court and Alison Street (marked yellow on
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Plan A) from a "general seal" standard to a "residential" standard.
(iv) The applicants are responsible for preparing the design of William Road on a cost share basis with the local government. In this regard the local government will contribute:
• 50% of the cost of the portion of road marked orange on Plan A. • 36/44 of the cost of the portion of road marked pink and yellow on Plan A.
I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J ADDERLEY, SENIOR SESSIONAL MEMBER
[2007] WASAT 250
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