Ironbridge Holdings Pty Ltd and Western Australian Planning Commission
[2007] WASAT 325
•30 NOVEMBER 2007
IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 325
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 325 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:396/2006 | 30 NOVEMBER 2007 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 29/11/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to make written submissions granted to two proposed submitters in relation to specified issues | ||
| B | |||
| PDF Version |
| Parties: | IRONBRIDGE HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Third party participation Town planning Subdivision application Subdivision would more than double population of country town Subdivision refused because of lack of structure plan Structure plan then approved and parties sought Tribunal approval by consent Residents' association and three residents of town sought leave to make submissions as to whether subdivision approval should be granted Proposed submitters seek to raise issues of character, amenity and services that were addressed in structure plan process Applicable principles Sufficient interest Whether discretion should be exercised to allow issues addressed in structure plan process to be raised in planning assessment of subdivision |
Legislation: | Planning and Development Act 2005 (WA), s 242, s 251 Shire of Toodyay Town Planning Scheme No 1, cl 3.16.1, cl 3.16.4 State Administrative Tribunal Act 2004 (WA), s 60(2), s 143 |
Case References: | Australian Conservation Foundation Inc. v The Commonwealth (1980) 146 CLR 493 Pitt v Environment, Resources and Development Court (1995) 66 SASR 274 Rennet Pty Ltd and City of Joondalup [2006] WASAT 183 Shire of Augusta-Margaret River v Gray [2005] WASCA 227 |
Orders | I make the following orders in each of DR 396 of 2006 and DR 397 of 2006:,1. The Toodyay Ratepayers and Residents Association Incorporated of Post Office Box 1488, Toodyay 6566 has leave under s 242 of the Planning and Development Act 2005 (WA) to make a written submission in relation to whether the subdivision should be approved, having regard to cl 3.16.1 of the Shire of Toodyay Town Planning Scheme No 1.,2. Mr Larry Graham of 8 Duke Street, Toodyay 6566 has leave under s 242 of the Planning and Development Act 2005 (WA) to make a written submission as to whether the subdivision should be approved, having regard to the impact on his property.,3. The parties must provide to each of the Toodyay Ratepayers and Residents Association Incorporated and to Mr Larry Graham a copy of the proposed consent orders by 4 December 2007.,4. The written submissions referred to in Order 1 and Order 2 must be filed and provided to the parties by 18 December 2007.,5. By 18 January 2008, the parties must file and exchange any evidence and submissions in relation to whether the proposed consent orders should be made.,6. The applications by Cr Chris Firns and by Ms Judith Francis to make submissions in relation to the application are dismissed. ,7. Subject to any further order, the proceedings shall be determined entirely on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA).,8. A copy of these orders must be sent to the Toodyay Ratepayers and Residents Association Incorporated, Mr Larry Graham, Cr Chris Firns and Ms Judith Francis. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 325 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 30 NOVEMBER 2007 DELIVERED : 30 NOVEMBER 2007 FILE NO/S : DR 396 of 2006
- DR 397 of 2006
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure - Third party participation - Town planning - Subdivision application - Subdivision would more than double population of country town - Subdivision refused because of lack of structure plan - Structure plan then approved and parties sought Tribunal approval by consent - Residents' association and three residents of town sought leave to make submissions as to whether subdivision approval should be granted - Proposed submitters seek to raise issues of character, amenity and services that were addressed in structure plan process - Applicable principles - Sufficient interest - Whether discretion should be exercised to allow issues addressed in structure plan process to be raised in planning assessment of subdivision
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Legislation:
Planning and Development Act 2005 (WA), s 242, s 251
Shire of Toodyay Town Planning Scheme No 1, cl 3.16.1, cl 3.16.4
State Administrative Tribunal Act 2004 (WA), s 60(2), s 143
Result:
Leave to make written submissions granted to two proposed submitters in relation to specified issues
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Ms KY Loh
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Australian Conservation Foundation Inc. v The Commonwealth (1980) 146 CLR 493
Pitt v Environment, Resources and Development Court (1995) 66 SASR 274
Rennet Pty Ltd and City of Joondalup [2006] WASAT 183
Shire of Augusta-Margaret River v Gray [2005] WASCA 227
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Summary of Tribunal's decision
1 Two proposed subdivisions would more than double the population of a country town. The subdivisions were refused consent because of the lack of a structure plan. During the proceedings, a structure plan was prepared and approved. The parties then asked the Tribunal to grant subdivision approval by consent subject to agreed conditions.
2 The local residents' association and three local residents applied to the Tribunal for leave to make submissions in relation to whether subdivision approval should be granted. They raised two principal concerns, the first relating to whether proper regard has been given to a provision of the local planning scheme, and the second relating to the effect of the subdivisions on the character, amenity and services available in the town.
3 The Tribunal delivered an oral decision. It found that, in the unusual circumstances of the case, the proposed submitters had a sufficient interest in the matter. However, it determined, in the exercise of discretion, not to grant leave to raise issues of character, amenity and services, as those issues had been raised and addressed in the strategic planning structure plan process. The Tribunal granted leave to the residents' association to make a written submission in relation to the provision of the scheme and to one of the residents to make a submission in relation to the impact of the subdivisions on his property, because part of the site could be seen from his property.
4 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
5 These are my reasons for decision in relation to four applications to make submissions under s 242 of the Planning and Development Act 2005 (WA) (PD Act) in proceedings Ironbridge Holdings Pty Ltd and Western Australian Planning Commission, proceedings DR396 of 2006 and Ironbridge Holdings Pty Ltd and Western Australian Planning Commission, proceedings DR 397 of 2006.
Background
6 Ironbridge Holdings Pty Ltd (Ironbridge) made application to the Western Australian Planning Commission (Commission) in 2006 for the
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- approval of two subdivisions in Toodyay. The first subdivision involves 18 residential lots and the second subdivision involves 357 residential lots. The land which is the subject of the proposed subdivisions is located approximately 400 metres to the north-east of Stirling Terrace, which is the main thoroughfare through the centre of the town of Toodyay. However, most of the land is separated from the town by the Avon River, or at least by a tributary of the Avon River.
7 The land is zoned "Urban 6 - Future Residential" under the Shire of Toodyay Town Planning Scheme No 1 (TPS 1 or Scheme). That zoning appears to have been put in place about 15 years ago, although it appears to have been confirmed and perhaps developed by an amendment to the town planning scheme in 2003. That amendment inserted cl 3.16.4 into TPS 1, effectively requiring a structure plan to be approved by the Commission before subdivision and/or development of the land can be undertaken.
8 The subdivision applications which are now before the Tribunal were refused by the Commission, essentially for the reason that there was not a structure plan, or an adequate structure plan, in place in conformity with the Town Planning Scheme. The Shire of Toodyay (Shire) also recommended refusal of the subdivision applications, essentially for that reason. Other referral authorities were generally not opposed to the proposed subdivisions. After the subdivision applications were refused, Ironbridge commenced proceedings in the Tribunal for review of the refusals under s 251 of the PD Act.
9 The proceedings were listed for hearing, with the key issue identified by the respondent being the absence of a structure plan. Ultimately, the original hearing was vacated, a further hearing was set and the further hearing was ultimately vacated. The reason for the vacation of the two hearings was the continuation of a process of discussion between the parties through a compulsory conference or mediation facilitated by a Tribunal member who is a town planner by profession. The result of the compulsory conference or mediation process was the preparation and subsequently the amendment of what became the Foggarthorpe Residential Structure Plan (Structure Plan).
10 The Structure Plan appears to have been submitted to the Shire in about December 2006, but was amended, it appears, on at least two occasions. The first set of amendments appear to have occurred in consequence of further discussions through the compulsory conference process in February 2007, and the final amendments appear to have
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- occurred as a result of further discussions in the compulsory conference process and a formal requirement of the Shire in June 2007 for the Structure Plan to address, or better address, issues including lack of social and physical infrastructure, public open space, density, traffic and the use of an existing pedestrian footbridge across the river. The Structure Plan was amended, most recently, in response to this requirement by the Shire, and a final amended Structure Plan was then lodged with the Shire.
11 Before the Shire made the request in June 2007 for amendment of the Structure Plan, it involved the community of Toodyay by a process of public consultation, in accordance with its Policy M2. It appears that the Structure Plan was advertised in April and May 2007 for 40 days and resulted in some 80 submissions from residents and ratepayers, clearly a significant number in the context of a town with a population of about 1500.
12 It seems from this chronology that the Council noted the subject matter of the submissions which appear to have raised the five matters in relation to which amendment was required by the Shire in June 2007, as well as other issues.
13 Following the final amendment of the Structure Plan and consideration of the public submissions, the Shire endorsed or approved the Structure Plan in, it appears, July 2007, and forwarded it to the respondent. The respondent, adopting its role as responsible authority for strategic planning, approved the Structure Plan in late September 2007 and endorsed it in October 2007.
14 The parties to the proceedings then discussed draft conditions, subject to which the subdivision applications could be approved, and, in mid-November 2007, filed draft consent orders in which they seek jointly that the Tribunal should grant subdivision approval to each of the applications. Twenty-one conditions are proposed and agreed between the parties in relation to the smaller subdivision, and 32 conditions are proposed and agreed in relation to the larger subdivision. The draft conditions include, among other things, requirements for a foreshore management plan, a drainage and nutrient management plan and a construction management plan to be signed off by the Shire and implemented.
Applications to make submissions
15 Shortly before the Tribunal received the minutes of consent orders, it received two applications for leave to make submissions under s 242
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- of the PD Act. The applications to make submissions received at that time were from Mr Larry Graham and from Ms Kim Angus, who is the chairman of the Toodyay Ratepayers and Residents Association Incorporated (Association), an association which has 157 paid up members.
16 Subsequently, the Tribunal also received applications for leave to make submissions from Ms Judith Francis and Cr Chris Firns.
17 Ms Francis lives, works and owns property in Toodyay and considers that the proposed subdivisions will significantly impact on the fabric of the Shire. She does not believe that the present infrastructure of the town or of the region is sufficient to cope with the influx of population of the magnitude that the proposed subdivisions are likely to bring. She is also concerned that the Council may have been led to believe that it would have to pay compensation if it did not support the Structure Plan, and that environmental considerations have moved on since the original zoning of the land 15 years ago.
18 In a further letter to the Tribunal, Ms Francis amplifies her concerns about the infrastructure of the town, and refers to the lack of medical and other services and facilities in the town as well as the lack of recreational facilities.
19 Mr Graham purchased an historic house in a slightly dilapidated condition in 2003 and in total has spent $450 000 to $500 000 on the purchase and restoration of the house. He chose Toodyay as his retirement destination and has said that he has invested his life savings in the home. He considers that the changes proposed by the subdivisions would have a major and deleterious effect on both his property and lifestyle.
20 He also says that his interests are directly affected because he views the site of part of the proposed subdivision from his house, and has produced a photograph which shows that to be the case.
21 Mr Graham considers in particular that there is a need to put before the Tribunal a consideration as to the proposed subdivision assessed in the context of cl 3.16.1 of TPS 1, which states as follows:
"Council intends that lands within the zone will be used to provide for further urban growth in a manner compatible with maximum residential amenity and environmental quality.
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- Council Policy will be to restrict further subdivision until such time as:
(a) all other Zones where residential subdivision is permitted are considered by Council to be developed to a level consistent with reasonably optimum utilisation of services
(b) water reticulation and power supply for the area are considered to be economically possible."
22 Ms Angus said that the association which she chairs resolved in November 2007 that she should seek leave to make a submission in this matter. The association made a submission to the Shire in relation to the draft Structure Plan. Ms Angus also shares Mr Graham's concern that the Tribunal, in assessing the proposed subdivision, should have before it considerations in relation to cl 3.16.1. In addition, she also shares Ms Francis's concern in relation to infrastructure in the town. She amplified the difficulties in relation to infrastructure by referring to the lack of sufficient medical facilities and the requirement for emergency services to be community-based and volunteer-operated.
23 Finally, Cr Firns also lives and owns property in Toodyay, and considers that the effect of the subdivision would be a fundamental change of the town from a small country town to a suburb of Perth. He considers that his quality and amenity of life would be severely and detrimentally affected by the subdivisions. He fears that the town may ultimately become a dormitory suburb of Perth if the subdivisions take place. Councillor Firns told the Tribunal that he was elected to the Shire Council on a platform which largely was based on opposition to the subdivisions that are now before the Tribunal.
24 The applications to make submissions are opposed by the parties.
Applicable principles
25 Section 242 of the PD Act is in the following terms:
"The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."
26 As the Tribunal has pointed out in Rennet Pty Ltd and City of Joondalup [2006] WASAT 183 and in other cases, s 242 of the PD Act involves a two-stage consideration. The first is that an applicant must
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- have a "sufficient interest" in the matter the subject of the review. The second is that, even if an applicant has a "sufficient interest", the Tribunal should exercise its discretion to permit the making of a submission.
27 The Western Australian Court of Appeal considered what is meant by the expression "sufficient interest" in Shire of Augusta-Margaret River v Gray [2005] WASCA 227, and in particular, in the judgment of Pullin J, with whom Le Miere AJA relevantly agreed. In essence, their Honours said that "sufficient interest" means that the Tribunal must be satisfied that an applicant has an interest which would give standing to seek judicial review before a court, in terms of the test set out by the High Court in Australian Conservation Foundation Inc. v The Commonwealth (1980) 146 CLR 493. In that case, the test of a sufficient interest to seek judicial review was variously expressed as a person being:
"likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds, or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails." - per Gibbs J, and:
"able to show actual or apprehended injury or damage to his property or proprietary rights, to his business of economic interests and perhaps to his social or political interests." - per Mason J.
28 In Shire of Augusta-Margaret River v Gray, the Court of Appeal went on to endorse the decision of the South Australian Supreme Court in Pitt v Environment, Resources and Development Court (1995) 66 SASR 274 (Pitt) in relation to a determination as to whether a person who has a sufficient interest should, nevertheless, be allowed to make a submission in the exercise of the Tribunal's discretion. Factors identified in the judgment of Doyle CJ in Pitt include the nature and strength of the interest of the proposed submitter, the contribution which the proposed submitter is likely to be able to make to a proper resolution of the issues before the Tribunal, whether the interests which the proposed submitter represents and the material to be advanced by that person will be adequately dealt with by the existing parties, and the impact upon the proceedings and the interests of the parties of granting leave, including the interests in the prompt and efficient despatch of proceedings.
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Sufficient interest
29 The circumstances of this case are unusual because Toodyay appears to have currently less than 300 dwellings and a population of about 1500. As I mentioned earlier, the proposed subdivisions would have the effect of more than doubling the town. Whereas in most subdivision applications one could not see a direct interest simply because of potential financial consequences for residents having additional properties in their vicinity which may, given the fluctuations of supply and demand, reduce the value of property, this case is, as I say, extremely unusual.
30 Additionally, it is recognised in the material the Tribunal has that Toodyay is a country town of the character that one would expect with a residential population of 1500. It is accepted that to more than double the population of the town in a single - or in two, but related - subdivisions would have a material impact on the character of the town.
31 In addition, it is clear from Mr Graham's submission that he, and perhaps others, are directly affected by the proposed subdivision in terms of visual impact.
32 In the unusual circumstances of this case, I consider that there is a sufficient interest in each of the potential submitters.
Discretion
33 It seems that there are really two principal concerns that have been expressed by those wishing to make submissions. The first relates to the extent to which proper regard has been had to TPS 1, and in particular, its rather unusual provisions in relation to the subject zone. The second is a more broad concern in relation to character, amenity and social impact, including the effect on services and facilities within a small country town of having such a significant subdivision on its doorstep. In relation to the second concern, I consider that a material factor in the exercise of discretion is that those matters were squarely put to the Council in the structure planning process.
34 As Mr Hardy correctly submits, the structure planning process is of fundamental importance in proper town planning. There is no question that in this case the Council undertook a proper public process and involved the community, and there is no question that the community spoke in relation to the proposed subdivision, raising essentially the points that are sought to be raised before the Tribunal in relation to character, amenity and social impact, including the adequacy of facilities and
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- services for the proposed and existing population. I do not consider it to be, notwithstanding the existence of a sufficient interest, an appropriate exercise of discretion to effectively allow these proceedings to be a vehicle to re-determine the appropriate structure planning of the site.
35 Structure planning is an element of strategic planning. It necessarily precedes and informs the process of development or subdivision assessment. This Tribunal was not established as a review body or as an original decision-making body in relation generally to strategic planning. That is a matter for the local authority, being the responsible authority for local planning, and the respondent, being the responsible authority for regional planning. If there is concern about the process or the results of the process of strategic planning, there are forums in which those results can be explored, and ultimately, as was suggested for Ironbridge, there is a political answer.
36 But I do not consider it to be an appropriate exercise of discretion to effectively reopen what is a strategic planning process at the subdivision - that is, planning assessment - stage.
37 I do agree that the submitters have raised an issue that should potentially be explored in relation to a determination of whether it is appropriate, in the exercise of planning discretion, to approve the proposed subdivisions, and that is the question of the application of cl 3.16.1 of the Scheme.
38 Under the PD Act, provisions of planning schemes are effectively mandatory in subdivision approval, with certain nominated exceptions. The question, therefore, of whether the proposed subdivision is consistent with cl 3.16.1 assumes far greater significance now than it would have prior to the commencement of the PD Act. As far as the Tribunal is aware at this moment, this issue - that is to say, the issue of cl 3.16.1 of the Scheme - was not an issue that was identified by the Commission at the commencement of these proceedings, or an issue that was addressed in the structure planning process. In making that observation, I note that I have not read the Structure Plan and have only very briefly skimmed the voluminous schedule of submissions in relation to it. It may be that I am wrong and that the Council turned its mind, in the process of the Structure Plan, to cl 3.16.1. However, for present purposes, that has not been established.
39 As I noted earlier, Mr Graham is visually affected in terms of his property by the proposed subdivision, or at least a part of the proposed
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- subdivision. Having regard to the range of considerations in Pitt, I think it is appropriate, given his personal effect, to allow him to make a submission in relation to that.
Determination of applications
40 That then brings me onto what to do with the four applications that I have, because, in light of what I have said, it should be clear that, to a large extent, they overlap in raising an issue that should be explored. I think, on balance, the ratepayers' association chaired by Ms Angus, representing what appears to be a significant proportion of the residents and ratepayers of the town, is the most appropriate of the applicants to address the issue of cl 3.16.1, and I think it is appropriate to grant leave to the Association to make a written submission in relation to whether the subdivision application should be approved as sought by the parties, having regard to that clause.
41 Having expressed that finding or conclusion, I do not see any utility in allowing anyone else to be raising the same issue. Once the issue is raised, the parties no doubt will also address it, and the Tribunal will need to come to a view on it, but the point will not perhaps get better by repetition, and having regard to the considerations in Pitt, in fact, discretion should not be exercised in favour of other applicants to raise precisely the same point.
42 I also consider, in light of what I have said, that Mr Graham's direct interest in terms of the impact - particularly the visual impact - from his property is a separate matter and it is appropriate that he should be granted leave to make a written submission in relation to that.
43 As I have said, I do not consider that the other issues that the various applicants wish to raise are appropriately the subject of discretion. They are largely matters of strategic planning and have been explored elsewhere in the process that brings the parties here.
44 I am conscious of the issues of delay and time and cost. Not only is the Tribunal required to minimise the cost to the parties, but that is a material consideration in the exercise of discretion. I consider the most appropriate way forward is to allow for written submissions by the two submitters that I have referred to, the Association and Mr Graham, in relation to the specific matters that I have referred to, namely cl 3.16.1 of TPS 1 and the personal effect on Mr Graham's property of the proposed subdivision.
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45 In conclusion, it seems to me that the effect on the character of Toodyay, the effect on property values generally in Toodyay, and the effect on the availability of services and facilities in Toodyay that obviously are a major concern to the community, are matters that are properly the subject of strategic planning which were, it appears, taken into account in that context. The community may disagree with the view that was arrived at by those who, at that time, were elected to represent them, and may disagree with the views of the respondent. However, those authorities have a particular role in the strategic planning process, and that role, I think, should be respected.
46 There are ways of challenging and there are ways of overturning those processes, but that, in my opinion, should not sound in, in effect, reopening those strategic planning issues here in the Tribunal.
Orders
47 For those reasons, I make the following orders in each of DR 396 of 2006 and DR 397 of 2006:
1. The Toodyay Ratepayers and Residents Association Incorporated of Post Office Box 1488, Toodyay 6566 has leave under s 242 of the Planning and Development Act 2005 (WA) to make a written submission in relation to whether the subdivision should be approved, having regard to cl 3.16.1 of the Shire of Toodyay Town Planning Scheme No 1.
2. Mr Larry Graham of 8 Duke Street, Toodyay 6566 has leave under s 242 of the Planning and Development Act 2005 (WA) to make a written submission as to whether the subdivision should be approved, having regard to the impact on his property.
3. The parties must provide to each of the Toodyay Ratepayers and Residents Association Incorporated and to Mr Larry Graham a copy of the proposed consent orders by 4 December 2007.
4. The written submissions referred to in Order 1 and Order 2 must be filed and provided to the parties by 18 December 2007.
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- 5. By 18 January 2008, the parties must file and exchange any evidence and submissions in relation to whether the proposed consent orders should be made.
6. The applications by Cr Chris Firns and by Ms Judith Francis to make submissions in relation to the application are dismissed.
7. Subject to any further order, the proceedings shall be determined entirely on the documents in accordance with s 60(2) of the State Administrative Tribunal Act 2004 (WA).
8. A copy of these orders must be sent to the Toodyay Ratepayers and Residents Association Incorporated, Mr Larry Graham, Cr Chris Firns and Ms Judith Francis.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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