Langer Nominees Pty Ltd & Anor and Western Australian Planning Commission - [2007] WASAT 137

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LANGER NOMINEES PTY LTD & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 137

MEMBER: MS M CONNOR (MEMBER)

HEARD: 22 MAY 2007

DELIVERED : 30 MAY 2007

FILE NO/S: DR 100 of 2007

BETWEEN: LANGER NOMINEES PTY LTD
ADMIRAL NOMINEES PTY LTD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning – Subdivision – Survey-strata – Conditional approval – Condition required area of subject land to be provided for public open space – Advice note approving cash-in-lieu contribution – Whether condition should be imposed having regard to DC 1.3 and DC 2.3, existing public open space in the locality and whether the proposed subdivision generated a need for public open space – Whether Tribunal has jurisdiction to consider the imposition of "advice" by the respondent – Whether the Tribunal has power to approve payment of cash-in-lieu for provision of public open space under Planning and Development Act 2005

Legislation:

Planning and Development Act 2005 (WA), s 25, s 135, s 138, s 143(1), s 151(1), s 153, s 241, s 251(2)
State Administrative Tribunal Act 2004(WA), s17, s 24(3), s 26, s 29(1)
Town Planning and Development Act 1928 (WA), s 5AA, s 20C, s 20C(1)
City of Geraldton Town Planning Scheme No 3

Result:

The application for review be dismissed
The decision of the respondent is affirmed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Ms R Howlett

Solicitors:

Applicants: Self-represented
Respondent: State Solicitor's Office

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

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Langer Nominees Pty Ltd and Admiral Nominees Pty Ltd applied to the State Administrative Tribunal for review of condition 7 and advice 7 of the Western Australian Planning Commission's decision of 18 October 2006 relating to the survey‑strata subdivision of Lot 33 Phelps Street and portion of Lot 10 Urch Street, Beresford. The condition required:
"An area(s) of land at least 496.4 square metres in area, in a position to be agreed with the WAPC, being shown on the deposited plan as a 'reserve for recreation' and vested in the Crown under Section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown."
Advice 7 related to condition 7 and reads as follows:
"With regard to Condition 7, the WAPC hereby approves of a cash in lieu contribution in accordance with section 153 of the Planning and Development Act, 2005."
The principal issue for consideration in this review was whether a condition requiring an area of land of at least 496.4 square metres to be ceded free of cost as a "Reserve for Recreation" should be imposed on the approval for the subdivision of the subject land having regard to the following factors:
(i)the respondent's policies DC 1.3 and DC 2.3;
(ii)the public open space existing in the locality; and
(iii)whether the proposed subdivision generated a need for public open space.
Adjunct to the condition requiring public open space was the question of advice 7 approving a cash‑in‑lieu contribution in accordance with s 153 of the Planning and Development Act 2005 (WA). The preliminary issue raised by the Western Australian Planning Commission was whether the Tribunal had jurisdiction to consider their decision to impose advice 7.
The Tribunal found that the evidence clearly demonstrated that there was a shortfall of local public open space in the Beresford locality and although it was not desirable for a 496.4 square metre area of the subject land to be set aside for public open space, the imposition of condition 7 fulfilled a proper planning purpose in that it served as a trigger for the application of s 153 of the Planning and Development Act 2005 (WA) enabling a cash contribution to be made in lieu of land being set aside for open space. In this instance, the Tribunal considered it appropriate that a cash‑in‑lieu contribution be made.
In relation to advice 7 the Tribunal found that as discretion to approve a cash‑in‑lieu payment was not exercisable by the Western Australian Planning Commission "in making the reviewable decision", and as the "advice" clearly did not fall within the ambit of s 251(2) of the Planning and Development Act 2005 (WA), the Tribunal determined that it did not have power to review the "advice" given by the respondent.

Introduction

Langer Nominees Pty Ltd and Admiral Nominees Pty Ltd (applicants) lodged a development application with the City of Geraldton for approval to construct ten group dwellings on Lot 33 Phelps Street and portion of Lot 10 Urch Street, Beresford (subject land). The City at its meeting of 27 June 2006 granted approval to the proposed development subject to 34 conditions and one advice note.
On 16 August 2006 the applicants lodged an application with the Western Australian Planning Commission (respondent or WAPC) for approval to subdivide the subject land into 10 survey‑strata lots, of between 300 square metres and 543 square metres, with a 504 square metre area of common property (refer to Attachment A).
The respondent approved the application on 18 October 2006 subject to seven conditions and seven advice notes.
The applicants elected to request the respondent to reconsider condition 7 and advice 7 of its decision in accordance with the provisions of s 151(1) of the Planning and Development Act 2005 (WA) (PD Act). Condition 7 reads as follows:
"7An area(s) of land at least 496.4 square metres in area, in a position to be agreed with the WAPC, being shown on the deposited plan as a 'reserve for recreation' and vested in the Crown under Section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown."
Advice 7 relates to condition 7 and reads as follows:
"With regard to Condition 7, the WAPC hereby approves of a cash in lieu contribution in accordance with section 153 of the Planning and Development Act, 2005."
The respondnent, on reconsideration of the matter determined that the imposition of the condition was well founded and that none of the arguments raised warranted the removal of the condition.
The applicants, on 6 March 2007, made application to the State Administrative Tribunal to have both Condition 7 and Advice 7 reviewed.

Subject land

The land, the subject of this application, comprises Lot 33 Phelps Street and portion of Lot 10 Urch Street, Beresford. A plan of survey, amalgamating the subject land into Lot 51, was approved by the WAPC on 16 August 2006 (Deposited Plan 49899). The site has a total area of 4970 square metres and has a 45.41 metre frontage to Phelps Street.
The subject land is currently vacant and is bounded by residential unit developments to the east, the old rollerdrome site to the north and the Langer Car Dealership to the west. Reserve No 28085, commonly known as Apex Park, is situated adjacent to the subject land on the southern side of Phelps Street, and approximately 300 metres west is Foreshore Reserve No 42069. A further undeveloped area of public open space (Reserve No 34871) is located in close proximity of the subject land (refer to Attachment B).

Planning framework

Regional

The respondent has prepared a number of planning documents relating to the subdivision of residential land for the purpose of exercising the power of the WAPC under s 135 and s 138 of the PD Act to approve a plan of subdivision. These are as follows:
Statement of Planning Policy No 1 - State Planning Framework Policy (SPP 1) unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision‑making on land use, subdivision and development in Western Australia. It informs decision‑makers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decision‑making across all spheres of planning. SPP 1 is an approved statement of planning policy prepared under s 5AA of the Town Planning and Development Act 1928 (WA) (TPD Act) and continues in force as a State planning policy under the PD Act: s 25. Under s 241 of the PD Act, the Tribunal is required to have due regard to any State planning policy which may affect the subject matter of an application for review.
The plans, policies and strategy that form the State Planning Framework are listed in Pt B of SPP 1. The following policies and strategies listed in SPP 1 are relevant in the consideration and determination of this matter:
•Policy No DC No 1.3 Strata Titles (DC 1.3);
•Policy No DC No 2.2 Residential Subdivision (DC 2.2);
•Policy No DC No 2.3 Public Open Space in Residential Areas (DC 2.3); and
•Liveable Neighbourhoods (Edition 3 Draft).
Clause 2 of DC 1.3 includes the following policy objectives:
"To ensure a consistent approach in the principles of subdivision control with particular regard to the amenity of the neighbourhood."
Clause 3.3.3 of DC 1.3 provides:
"Consistent with legislation, policy and practice in respect of conventional subdivision, for a proposal involving more than a small number of lots, the Commission may require a contribution towards the provision of public facilities, such as open space, school sites and the like. The Commission may allow a maximum of 50 per cent of the total 10 per cent public open space to be provided as communal open space within the survey‑strata subdivision subject to the open space being useable for and developed for general recreation purposes. The remainder of the provision may be provided outside of the subdivision or by way of cash-in-lieu. The Commission will allow up to 20 per cent of the 10 per cent contribution to be in the allocation of a site for community facilities, which may include buildings, providing the site is credited towards the communal open space. Cash-in-lieu could be provided in the same manner as it is with conventional subdivision."
Clause 3.3.4 of DC 1.3 provides:
"In the case of the creation of vacant strata subdivision or survey‑strata lots, the Commission must be satisfied on a number of points:
...
f)In respect of larger schemes, that adequate road access will be available and that the scheme, if approved, complies with the standard requirements with respect to the provision of public open space. Also, the Commission will ensure that any such strata scheme does not prejudice the proper overall planning of a locality, …. "
DC 2.2 sets out the respondent's policy requirements for the subdivision of land into residential lots. Clause 3.1.3 of DC 2.2 states that all new residential lots be:
"Convenient to areas of passive and active open space, provided in accordance with the Commission’s policy on Public Open Space (DC 2.3) in appropriate locations and configurations, having regard for the existing and proposed distribution of open space in the immediate locality."
Clause 2 of DC 2.3 includes the following policy objectives:
"To ensure that all residential development in the State is complemented by adequate, well-located areas of public open space that will enhance the amenity of the development and provide for the recreational needs of local residents."
Clause 3.1.1 of DC 2.3 states that:
"the [respondent's] normal requirement in residential areas is that, where practicable, 10 per cent of the gross subdivisible area be given up free of cost by the subdivider and vested in the Crown under the provisions of Section 20A of the Town Planning and Development Act, 1928 (as amended) as a Reserve for Recreation."
Clause 3.1.2 of DC 2.3 states that the "10 per cent requirement" was derived from recommendations contained in the Stephenson‑Hepburn Plan, which established a standard of 3.36 hectares per 1000 population (excluding school playing fields) for public open space.

Local

The subject land is zoned "Residential" with a permitted density of R12.5/40/60 under the City of Geraldton Town Planning Scheme No 3 (TPS 3 or Scheme).

Issues

The parties agreed that the principal issue for consideration in this review is whether a condition requiring an area of land of at least 496.4 square metres to be ceded free of cost as a "Reserve for Recreation" should be imposed on the approval for the subdivision of the subject land having regard to the following factors:
(i)the respondent's policies DC 1.3 and DC 2.3;
(ii)the public open space existing in the locality; and
(iii)whether the proposed subdivision generates a need for public open space.
Adjunct to the condition requiring public open space is the question of an advice note (advice 7) approving a cash‑in‑lieu contribution in accordance with s 153 of the PD Act.

Condition 7

The respondent contended that the proposed survey‑strata subdivision will result in the creation of nine additional lots that will introduce additional residents, visitors and vehicular and pedestrian traffic to the locality resulting in increased recreational demand and use in the locality, generating the need for additional public open space, as required by condition 7. The respondent argued that the condition is consistent with policies DC 1.3 and DC 2.3, which specifies a requirement of 10 per cent public open space for residential subdivision, and that there was a need for additional public open space within the locality.
Mr Christopher Watt, a senior planning officer with the Department for Planning and Infrastructure (Midwest Regional Office) (DPI), was called by the respondent to give evidence. Mr Watt explained that the 10 per cent requirement for public open space in residential areas is derived from the recommendation of the Stephenson‑Hepburn Plan and while the report specifically examined the Perth Metropolitan area, its methodology, findings and recommendations has formed the basis for the requirement for the provision of public open space in residential areas across the State. The applicants did not argue the basis for the 10 per cent requirement but why the provision of an area of the subject land for public open space was not necessary or reasonable.
Mr Watt undertook an analysis to assess the need for public open space in the locality. He relied on the "walkable catchment" or "pedshed" as described in Liveable Neighbourhoods and adopted a "pedshed" of residential area within a 400 metre radius of Apex Park. His analysis examined two scenarios.
The first identified the "gross residential area" (excluding areas unlikely to be developed for residential development) and the total area of public open space within a 400 metre walk of Apex Park (excluding Foreshore Reserve 42069). The analysis revealed that there was a total of 32.68 hectares of "gross residential area" and 2.265 hectares of public open space (of which only 2.12 hectares currently existed) within the identified pedshed. Based on these figures, Mr Watt calculated the ratio of public open space to gross residential area to be 6.9 per cent, considerably less than the required 10 per cent advocated by the respondent's policies.
The second scenario included the gross residential area identified in the first scenario as well as the "Northgate Shopping Centre" and the undeveloped Geraldton Grammar School site, being land capable of residential development. This scenario further reduced the ratio of public open space to gross residential area to 5.5 per cent.
The methodology or calculations of Mr Watt's analysis were not challenged by the applicants.
Based on his findings, Mr Watt concluded that there was a shortage of public open space within the locality and that the additional lots created by the strata-survey subdivision would generate increased recreational demand and use. Mr Watt considered that there was a real need for additional public open space within the locality, and that the imposition of a condition requiring the ceding of land for public open space would assist in meeting this need.
Mr Watt asserted that the respondent had been consistent in its approach in regard to requiring the provision of public open space within this locality, and referred the Tribunal to three freehold title subdivision applications (relating to two sites within the identified pedshed), all of which were approved conditional upon the ceding, free of cost, of land for public open space.
The applicants contended that the area of land required to be ceded for the purpose of public open space was not practicable or useable and would serve no purpose. He agitated the issue that there were already sufficient areas of public open space within easy access of the subject land and that therefore there was no need in fact for such public open space. He identified Apex Park and Foreshore Reserve 42069 as the main recreational opportunities within close proximity to the subject land. He submitted that the City of Geraldton (City) concurred with this view and referred the Tribunal to a letter from the City to the DPI dated 22 November 2006 (page 60 of Exhibit 2), which states:
"I wish to advise that the City does not believe the requirement for the provision of public open space is necessary given that Apex Park is located directly across from the subject property."
The applicants led evidence from Mr Melling, Director of Development Services for the City of Geraldton and the Shire of Greenough, on this point. Mr Melling considered that the provision of public open space within the development had no practical use as it would be segregated from the remainder of the Beresford community. He also contended there was little opportunity to create new open space areas in the locality as most of the land had been fully developed and as redevelopment was occurring mainly on a lot by lot basis, there was no opportunity to obtain a consolidated open space area. He maintained that the only alternative left was for the City to purchase an existing land parcel at current market value and considering the limited opportunity for further development in this area and the ability to secure additional funds, this option was not likely.
Mr Melling confirmed that as of March 2007 the City had $761 000 in its cash‑in‑lieu fund. Mr Melling asserted that there were no nominated open space areas within the vicinity of the development that met the WAPC's guidelines for the expenditure of cash‑in‑lieu funds as outlined in Planning Bulletin No 21 Cash-in-lieu of Public Open Space. He considered that Apex Park did not fall within the WAPC's guidelines as it was not created as a 20A Reserve and that Reserve 42069 was also not suitable, as it is a foreshore reserve providing regional functions. Given the limited expenditure options, he considered it would be difficult to use the monies within this locality.
Mr Melling conceded under cross examination that in providing advice to DPI in respect to whether a requirement for the provision of public open space should be imposed, the City's only consideration was the relationship of Apex Park to the subject land. He admitted that no evaluation of the ratio of public open space to residential use in the locality had been undertaken. He also confirmed that he was aware of the three freehold title subdivision applications that were approved conditional upon the ceding, free of cost, of land for public open space. There appears to be an inconsistent approach taken by the City in its response to the provision of public open space in that the evidence shows that the City, in providing advice to DPI on the subdivision applications, recommended conditional approval subject to the imposition of conditions requiring the provision of public open space.

Mr Melling was asked a series of questions by counsel for the respondent about the difficulties of expending cash‑in‑lieu monies in the Beresford locality. In relation to Apex Park, he reiterated that it was not a recreation reserve and therefore any expenditure on this reserve would require Ministerial approval. In regard to Reserve 34871, he acknowledged that the reserve was vested for the purpose of public open space and that it was currently undeveloped. He conceded that cash‑in‑lieu funds could be used to upgrade the park but argued that the City was reluctant to develop public open space areas unless there had been a request from surrounding residents, and there had been no such request for the upgrade of this particular public open space area. He considered that the needs of these residents were being met by the large oval located on the Geraldton Grammar School site.
There was no dispute that a survey‑strata subdivision of the size proposed was considered to be consistent with what is termed as "large scheme", and therefore, the provisions of the respondent's policies are relevant considerations in the determination of this application.
The applicants' argument that such an area of public open space would not be practicable or useable and would serve no purpose was not disputed by the respondent. Under cross‑examination Mr Watt agreed that such an area was not practicable and explained that the acknowledgment of that fact was the precise reason for the inclusion of advice 7. The Tribunal agrees that the provision of such a small area of public open space on the subject land, isolated from the general community would not meet the policy objectives of DC 2.3.
In order to determine whether the condition, in this particular circumstance, fulfils a proper planning purpose it is necessary to consider whether the ceding of the land is unnecessary for the orderly and proper planning of the locality. Mr Langer identified two areas of recreation which he maintained satisfied the needs of the community. From the evidence, it can be ascertained that Apex Park, which is approximately 1.7 hectares in area, is used for passive recreation and fulfils a local open space function. On the other hand, Foreshore Reserve 42069 serves a regional function, and the mere fact of proximity of a residential area to such a reserve does not reduce recreation demand. If the local open space function, which is quite different to that served by the foreshore reserve, is not met, then additional demands are placed on the foreshore reserve, which may not be easily reconcilable with its function. Mr Watt's analysis clearly demonstrates that within the identified pedshed local public open space is significantly less than the required 10 per cent.
The Tribunal accepts that the proposed survey‑strata subdivision will increase recreational demand and use in the locality. The Tribunal also acknowledges that the subject land is adjacent to an existing public open space area that would adequately service the recreational needs of the residents of proposed survey‑strata lots. However, the evidence clearly demonstrates that there is a shortfall of local public open space in the Beresford locality. Orderly and proper planning requires consideration of amenity impacts of the locality and, in this instance, given the deficiency of local public open space in the locality, it is considered appropriate that the shortfall should be addressed, as has occurred in three other subdivision applications within the area. Although it is not desirable for a 496.4 square metre area of the subject land to be set aside for public open space, the imposition of condition 7 fulfils a proper planning purpose in that it serves as a trigger for the application of s 153 of the PD Act, enabling a cash contribution to be made in lieu of land being set aside for open space. In this instance, the Tribunal considers it appropriate that a cash‑in‑lieu contribution be made. On the evidence, the Tribunal does not consider there are any impediments to the City seeking approval to use the monies attained from a cash‑in‑lieu contribution for the upgrading of existing reserves or any future reserves that may eventuate from the subdivision proposals referred to above.

Advice 7

The respondent contended that the Tribunal lacks jurisdiction to consider the respondent's decision to impose advice 7, arguing that it is not a "reviewable decision" within the meaning of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The applicants did not submit any arguments on this point.
The Tribunal, in Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at par [51] to [54], considered the issue of jurisdiction in respect to advice notes in the context of the TPD Act and found:
51"Section 20C(1) of the TPD Act provides as follows:
'Where the Commission has approved a subdivision of land upon condition that portion thereof be set aside and vested in the Crown for parks, recreation grounds or open spaces generally, if the local government in whose district the portion is situated and the Commission approves, the owner of the land may, in lieu thereof, pay to the local government a sum that represents the value of the portion.'
52Section 17 of the State Administrative Tribunal Act 2004 provides, in part, as follows:
'17. What comes within review jurisdiction
(1)If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. …
(3)Where subsection (1) … applies the decision is a "reviewable decision" for the purposes of this Act.'
53Section 29(1) of the SAT Act provides as follows:
'The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.'
54In my opinion, the decision of the respondent to approve a cash‑in‑lieu payment under s 20C of the TPD Act did not involve the exercise of a discretion by the respondent "in making the reviewable decision", within the meaning of those words in s 29(1) of the Tribunal Act. The "reviewable decision" in the present case was the decision of the respondent to require the applicant to comply with certain conditions the respondent thought fit to impose before approving the plan of subdivision: TPD Act s 24(3). It is apparent from the terms of s 20C of the TPD Act that the respondent's discretion to approve a cashinlieu payment only arose where it "has approved a plan of subdivision of land upon condition that portion thereof be set aside and vested in the Crown". In other words, the respondent's discretion under s 20C of the TPD Act to approve a cashinlieu payment only arose after, and in consequence of, the exercise of its discretion under s 24(3) of the TPD Act to require the applicant to comply with conditions before approving the plan. As the discretion to approve a cash‑in‑lieu payment was not exercisable by the respondent "in making the reviewable decision", the Tribunal does not have power to exercise that discretion in its review of the relevant "reviewable decision" under s 29(1) of the Tribunal Act. Moreover, as neither s 26 of the TPD Act nor any other provision of an enabling Act gives the Tribunal jurisdiction to review the respondent's decision to approve a cash‑in‑lieu payment, that decision is not a "reviewable decision" amenable to the Tribunal's review jurisdiction."
The comparable section of the PD Act to s 20C of the TPD Act is s 153, which provides in part, as follows:
"153When owner may pay money in lieu of and being set aside for open space
(1)If the Commission has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown for parks, recreation grounds or open spaces generally and –
(a)the Commission, after consultation with the local government in whose district the portion is situated, so requires; or
(b)the Commission, the local government in whose district the portion is situated and the owner of the land so agree,
the owner of that land is to, in lieu of setting aside the portion, pay to that local government a sum that represents the value of the portion."
Similarly, the terms of s 153 of the PD Act confers discretion to the respondent to approve a cash‑in‑lieu payment where it "has approved a plan of subdivision of land on condition that portion of the land be set aside and vested in the Crown". As under s 20C of the TPD Act, the respondent's discretion under s 153 of the PD Act to approve a cash‑in‑lieu payment only arises after, and in consequence of, the exercise of its discretion under s 143(1) of the PD Act to require the applicants to comply with conditions before approving the plan. The legislation does not presently allow the imposition of a specific condition requiring a cash contribution in lieu of public open space.
Furthermore, s 251(2) of the PD Act provides that:
"An applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of conditions affixed to the granting of an approval referred to in subsection (1)."
Advice 7 is not a condition of the approval; it is an advice note and as such, does not fall within the ambit of the review provision.
As the discretion to approve a cash‑in‑lieu payment was not exercisable by the respondent "in making the reviewable decision", and as the "advice" clearly does not fall within the ambit of s 251(2) of the PD Act, the Tribunal finds that it does not have power to review the "advice" given by the respondent.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER

Attachment A

Attachment B