| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : LWP PROPERTY GROUP PTY LTD and CITY OF SWAN [2012] WASAT 129 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
HEARD : 14, 15 AND 16 FEBRUARY 2012 WRITTEN SUBMISSIONS FILED ON 15 MARCH 2012 AND 10 APRIL 2012
DELIVERED : 25 JUNE 2012 FILE NO/S : DR 303 of 2010 BETWEEN : LWP PROPERTY GROUP PTY LTD Applicants
AND
CITY OF SWAN
Respondent
OAKOVER VINEYARDS PTY LTD
Intervener
Catchwords: Town planning Development plan Condition requiring contribution to the cost of constructing a bridge 'Newbury' test Condition for a planning purpose Nexus Unreasonable condition Preferred planning outcome Clearly
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demonstrated need Transport principles of Liveable Neighbourhoods Future need Development Contribution Area Development Contribution Plan Legislation: City of Swan Local Planning Scheme No 17, cl 4.2.25, cl 5A
Planning and Development Act 2005 (WA), s 252(1)
Metropolitan Region Scheme
State Administrative Tribunal Act 2004 (WA), s 37(7) Result: Application for review is allowed and condition set aside Category: B
Representation: Counsel:
Applicants : Mr DH Solomon and Mr CS Williams
Respondent : Mr CA Slarke
Intervener : Mr P McQueen
Solicitors:
Applicants : Solomon Brothers
Respondent : McLeods Barristers & Solicitors
Intervener : Lavan Legal
Case(s) referred to in decision(s):
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; 54 LGRA 110; 53 ALR 632
Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
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Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 On 1 October 2010 LWP Property Group Pty Ltd applied to the Tribunal for a review of a decision of the City of Swan to approve the development plan in relation to Village 7B of the Ellenbrook Estate subject to a requirement that the developer contributes to the cost of constructing a bridge over Ellen Brook. 2 On 4 April 2011 the Tribunal granted leave for Oakover Vineyards Pty Ltd and others to intervene in the matter. 3 The review focussed on two central issues: 4 In regard to the first issue it was agreed between the parties that the validity of the condition at issue should be judged against what is referred to as the 'Newbury' test. 5 Because of the benefits to some residents in terms of route choice and improved travel times for some journeys, the Tribunal accepted that the first leg of the Newbury test, that of serving a planning purpose, was met. 6 In regard to the second and third legs of the Newbury test, that of nexus and reasonableness, the Tribunal held that it could not be argued that the need for the bridge reasonably arose from the subject development. Because of the evidence of the traffic experts on the regional role of the bridge, and the fact that the existing road network was sufficient to accommodate the additional traffic generated by the development, the Tribunal concluded that the second and third legs of the Newbury test were not satisfied. (Page 5)
7 For these reasons, the application for review was allowed and the relevant condition set aside. 8 In regard to the second issue, for particular reasons, including the fact that a number of different landowners are involved and that the bridge is to be located outside the area of the relevant Development Plan, the Tribunal took the view that it was in any event, in all the circumstances, inappropriate to impose the requirement other than through a Development Contribution Plan adopted for a Development Contribution Area under the Local Planning Scheme.
Introduction 9 This proceeding involves an application brought by LWP Property Group Pty Ltd (LWP) for review of the decision of the City of Swan (City) to approve the development plan in relation to Village 7B of the Ellenbrook Estate (Village 7B) pursuant to the City of Swan Local Planning Scheme No 17 (Scheme) subject to a condition that the developer of Village 7B, that is, LWP, be required to make a contribution to the cost of constructing a bridge over Ellen Brook, connecting two sections of Railway Parade through or adjoining Lot 4 to the south of Village 7B. 10 The Ellenbrook development has been staged, with the various stages comprising 'villages'. Each of the villages comprise a number of individual subdivisions. The final stage, Village 7B, is located at the northeastern end of the Ellenbrook development and will comprise 1,150 subdivided lots. 11 Following application for intervention, the Tribunal, on 4 April 2011, granted leave pursuant to s 37(7) of the State Administrative Tribunal Act 2004 (WA) for Investa Residential Group Pty Ltd (Investa) and Oakover Vineyards Pty Ltd (Oakover) and others to intervene in the matter. 12 Investa owns land originally described as Lot 4 on Diagram 83544 and now subdivided into a number of staged parcels at Railway Parade in Upper Swan (Lot 4). Oakover and others own a large parcel of land to the south of the Investa land comprising Lots 13255, 13256 and 1 Railway Parade, Upper Swan, Lots 2, 3 and 27 Apple Street, Upper Swan, Lots 28, 30, 32 and 34 Orange Avenue, Upper Swan and Lot 35 Rose Street, Upper Swan (Oakover land). (Page 6)
13 On 6 December 2011, Investa, having concluded an agreement with the City in regard to its contribution to the construction of the bridge, discontinued its participation in this proceeding.
The locality 14 Village 7B is located at the northeastern extremity of the Ellenbrook development bounded by the Lexia Wetlands Conservation Reserve and Maralla Road to the north, the Northam railway line to the east, the Vines Estate to the south and Lot 4 to the south east. 15 Lot 4 is located immediately to the south of the eastern portion of Village 7B. It is bounded to the west by the Vines Estate, to the north by Village 7B, to the east by Railway Parade and to the south by the Oakover land. 16 Lot 4 is subject to Outline Development Plan No 139 (ODP 139). ODP 139 proposes the creation of 205 R25 residential lots, one R60 coded group housing site and a 1.9 hectare retirement village. The development is divided into two sections which are bisected in a northwest to southeast direction by Sawpit Gully, a tributary of Ellen Brook. Sawpit Gully enters Ellen Brook in the southeast section of the land. The plan does not include provisions for commercial development or public facilities. It is proposed that Lot 4 will have two access points to the north into Ellenbrook Village 7B, one access point to the west into the Vines Estate and, following construction of the bridge over Ellen Brook, a further access point to the south onto Railway Parade. 17 On 19 March 2009 the Western Australian Planning Commission (WAPC) granted approval to subdivide Lot 4 subject to conditions which included as condition 1 in part the following: Arrangements being made with the local government for the upgrading and/or construction of Railway Parade, from Apple Street to the northern border of Lot 4, including the crossing of Ellen Brook … . The cost of upgrading/construction of Railway Parade is a matter to be negotiated between the subdivider and the local government'. 18 Condition 1 was subsequently the subject of a review proceeding in the Tribunal and on 10 September 2009, by consent, condition 1 was replaced by a revised condition which in part reads: The subdivider is to prepare a Deed with the City of Swan to provide for a contribution to the upgrade and/or construction of Railway Parade from Apple Street to the northern boundary of the subject land … suitable arrangements being made with the Local Government for the upgrading (Page 7)
and/or construction of Railway Parade, from Apple Street to the northern boundary of Lot 4, including the crossing of Ellen Brook … . 19 The most recent version of ODP 139, endorsed by the WAPC on 20 October 2010, proposes the upgrading and extension of Railway Parade as a continuous 25 metre wide neighbourhood connector which provides access to Lot 4 and into Village 7B by way of realignment of the road reserve. 20 The Oakover land is to the immediate south of Lot 4 and is owned by Oakover and other land owners. The Oakover land is bounded to the north by Lot 4, to the west by the Vines Estate and to the south by Rose Street. On its eastern side, the northern portion of the land is bounded by Railway Parade while the southern portion is bounded by Orange Avenue. 21 A proposed amendment to the Metropolitan Region Scheme (MRS) has been lodged by the owners of the Oakover land with the WAPC. This amendment, which seeks to rezone the land from 'Rural' to 'Urban Deferred', has been supported by the City and the Eastern Metropolitan Regional Council and is presently with the WAPC for consideration. 22 An indicative concept plan forming part of the MRS Amendment documentation indicates the potential for a residential development with a population of between 3,500 to 4,000 people, a primary school and a local neighbourhood commercial centre. While the current concept plan appears to provide a link north to Lot 4, the main access routes seem to be south along either Railway Parade or Orange Street to Great Eastern Highway. 23 At the broader level, the proposed South Bullsbrook Industrial Precinct (SBIP) and the potential development of the North Ellenbrook land described below are relevant to the current review. 24 South Bullsbrook has been identified in the Industrial Land Strategy 2009: Perth and Peel and the Outer Metropolitan Perth and Peel Subregional Strategy 2010 as a 'priority industrial site subject to investigation'. The SBIP is located approximately 5 kilometres north of Village 7B, on the eastern side of the PerthGeraldton railway line. The SBIP comprises various land holdings with a total land area of approximately 470 hectares located between Stock Road, the railway line, Great Northern Highway and the RAAF Base Pearce. (Page 8)
25 The concept for the SBIP proposes approximately 400 lots with light industry and commercial industry uses in the eastern part and heavy industry in the western part. 26 A request to amend the MRS to facilitate industrial use of the land has been submitted to the WAPC. The City has resolved to grant 'in principle' support for the proposed amendment. 27 The North Ellenbrook land is located immediately to the north of Ellenbrook Village 7A on the northern side of Maralla Road. A number of consultants are currently undertaking the preparation of a structure plan and a relevant MRS rezoning submission. The intention is to utilise the land for industrial purposes. 28 Finally, it should be noted that the North-East Corridor Extension Strategy 2003 proposes a local distributor road along the western side of the PerthGeraldton railway line linking Brand Highway to the Great Northern Highway. The proposed local distributor road would run on the alignment of the partially constructed Railway Parade.
The proposed development 29 Village 7 of the Ellenbrook Estate has been divided into two stages, the development plans for each being Development Plan 016 (in respect of Village 7A) and Development Plan 018 (in respect of Village 7B). 30 Village 7B is divided into two sections by Sawpit Gully. On the western side of a proposed bridge over Sawpit Gully provision has been made for a village centre and primary school. The road over that bridge provides a central spine to the development and links to the west to Ellenbrook Village 6 and the Broadway. 31 The original structure plan for Ellenbrook was revised in 1995. This revised structure plan identified the need for linkages with adjoining residential estates. These linkages have been subsequently reflected in the local structure plans prepared for individual villages within the development. Village 7B is proposed to have seven entry points, of which two link south from the western section into the Vines Resort and two south from the eastern section into Lot 4. 32 The development plan for Village 7B has capacity to accommodate approximately 1,150 residential lots to accommodate an estimated population of approximately 3,750 residents. The design has been guided by an 'Avon Valley' theme. (Page 9)
33 The development plan provides for a variety of residential lot sizes ranging from approximately 150 square metres through to in excess of 2,000 square metres. 34 The Village 7B Development Plan was subject to advertising by the City under cl 5A.1.8 of the Scheme. 35 The City received a 195 signature petition against the proposed Village 7B Development Plan submitted by The Vines Property Owners' Association, together with 17 other objections and four submissions not objecting to the proposal. A common theme of the submissions objecting to the proposal was the perception that the new development and road connections proposed by the Village 7B Development Plan would create excessive traffic volumes in the local road system.
Planning framework 36 Village 7B is zoned Special Use Zone No 4 under the Scheme. Clause 4.2.25 establishes the objectives of the Special Use zones as follows: 37 Part 5A of the Scheme deals with structure planning areas. According to cl 5A.1.1 of the Scheme, 'Structure Planning Area' includes any of the Special Use zones for which a structure plan is required as a condition of subdivision or development. 38 Clause 5A.1.6 sets out in some detail what is to be contained in a proposed structure plan. These include: (Page 10)
4) for local structure plans, a map showing proposals for: (i) neighbourhoods around proposed neighbourhoods and town centres; (ii) existing and proposed commercial centres; (iii) natural features to be retained, (iv) street block layouts; (v) the street network including street types; (vi) transportation corridors, public transport network, and cycle and pedestrian networks; (vii) land uses including residential densities and estimates of population; (viii) schools and community facilities; (ix) public parklands; and (x) urban water management areas; 5) a written report to explain the mapping and to address the planning framework for the structure plan 39 Clause 5A1.6 includes a requirement in that written report to address 'the proposed method of implementation including any cost sharing arrangements and details of any staging of subdivision and development'. 40 Under cl 5A.1.9.1 of the Scheme, the City is required to consider all submissions received during the advertising period and: 41 Clause 5A.2 of the Scheme deals with Development Contribution Areas. The purpose of having Development Contribution Areas is set out in cl 5A.2.4 as follows: (a) [to] provide for the equitable sharing of the costs of Infrastructure and Administrative Costs between Owners; (Page 11)
42 The word 'Infrastructure' is defined to mean 'services and facilities which, in accordance with [WAPC's] policy, it is reasonable for Owners to contribute towards'. 43 Clause 5A.2.1 states that: Development Contribution Areas are shown on the Scheme Map as DCA with a number and included in Schedule 13 [of the Scheme]. 44 Clause 5A.2.5.1 requires that a Development Contribution Plan (DCP) is required to be prepared for each Development Contribution Area (DCA) and cl 5A.2.6 states that a DCP does not have effect until it has been endorsed by the Commission or incorporated in Sch 13 as part of the Scheme. 45 Finally, cl 5A.2.7.3 provides that, notwithstanding cl 5A.2.7.1, where a DCP is not in effect, the local government may support subdivision or approve development where the owner has made other arrangements satisfactory to the local government with respect to the owner's contribution towards the provision of infrastructure and administrative costs in the Development Contribution Area. 46 State Planning Policy 3.6 Development Contributions for Infrastructure (SPP 3.6) sets out the principles and considerations that apply to development contributions for the provision of infrastructure in new and established urban areas. 47 An objective for the policy established by cl 4 is to ensure that development contributions are necessary and relevant to the development to be permitted and are charged equitably among those benefiting from the infrastructure and facilities to be provided. 48 However, the introduction to the policy also suggests that: Requirements for development contributions are imposed … in areas of fragmented ownership where cost sharing arrangements are necessary, by development schemes or development contribution arrangements made under local government schemes. 49 In regard to a requirement for DCPs, the policy at cl 5.3 notes that: (Page 12)
Where local governments are seeking development contributions beyond the standard provisions outlined in appendix 1, they must be supported by a development contribution plan which identifies the need for such infrastructure for the relevant development contribution area or by a voluntary agreement … 50 The infrastructure works set out in Appendix 1 include: All roads and traffic works required within the subdivision and linked to a constructed public road 51 and new district distributor roads. 52 Liveable Neighbourhoods (Liveable Neighbourhoods) is a WAPC operational policy for the design and assessment of structure plans for new urban (predominantly residential) areas in the metropolitan area. In setting out the key differences from conventional practice, Liveable Neighbourhoods promotes street systems that are highly interconnected and aimed at reducing local travel distances and related emissions and energy use. 53 In dealing with network connectivity and management, Liveable Neighbourhoods provides: The local street network should be highly connected with frequent junctions whenever possible with arterial routes to limit travel distances and promote walking, cycling, public transport usage and a strong sense of community.
City's decision 54 In dealing with the Village 7B Development Plan the City on 11 August 2010 resolved as follows: 1) Note that the proposed Development Plan 018 for Ellenbrook Village 7B entails the introduction of sensitive residential land users to within approximately 400 metres of the operative Ellenbrook Speedway and therein the potential for exposure to noise levels in excess of those permitted by the Environmental Protection (Noise) Regulations 1997. 2) Require that the proponents of the proposed Development Plan 018 for Ellenbrook Village 7B undertake and submit to the City's satisfaction, an acoustic study that identifies the noise levels from speedway operations as experienced by proposed residential lots in Village 7B and outlines options for the mitigation of such noise through mechanisms within the subdivision and/or building design. (Page 13)
3) Require that any identified options for noise mitigation be incorporated into the design of the subdivision and/or imposed as conditions of any subdivision approval. 4) Adopt Development Plan 018, for Ellenbrook Village 7A (date stamped 8th July 2010), for final approval upon the satisfactory resolution of item 2) above. 5) Agree that the provision of the proposed bridge over Ellen Brook through Lot 4 Railway Parade, Upper Swan will provide a beneficial outcome in terms of access and traffic dispersal for both Village 7B and the Vines and accordingly that the developers of Village 7B be required to make a contribution to the cost of the bridge based on the City's most recent traffic modelling. Current modelling estimates a contribution of 57% of the bridge construction cost of around $8m. 6) Forward the documents to the Western Australian Planning Commission for endorsement, once adoption is effected by Council as per (4) above. 7) Advise the applicant and those who made submissions of Council's decision accordingly. 8) Record that the reason for changing the Recommendation is to incorporate the percentage of the estimated contribution as outlined in the Report.
The issues 55 The City identified an extensive schedule of issues in the matter. In response, LWP rejected a number of these issues and suggested a number of alternative issues. The Intervener submitted a further set of issues. During the hearing these issues were subject to further discussion and the matter proceeded on the basis of two central issues: 56 In dealing with the first issue, there appeared to be reasonable agreement between the parties that SPP 3.6 constituted the applicable policy framework. It was also accepted than in dealing with this issue it (Page 14)
would be preferable for the Tribunal to include the Oakover land in its deliberations. 57 The Tribunal will deal with these two issues in turn.
Whether it is lawful given the circumstances of this case for the City to impose a requirement that LWP makes a contribution to the cost of the construction of a bridge over Ellen Brook on or adjacent to Lot 4 58 In Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305 (Ironbridge), Senior Member Parry (as he then was) at [21] noted that in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury test) in the following terms: A condition attached to a grant of planning permission will not be valid therefore unless: 1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. 2. The condition reasonably and fairly relates to the development permitted. 3. The condition is not so unreasonable that no reasonable planning authority could have imposed it. 59 It was agreed between the parties that the validity of the condition at issue should be assessed by applying this test.
For a planning purpose 60 It is accepted by the parties that what constitutes a legitimate planning purpose is to be ascertained from a consideration of the applicable legislation and town planning instruments to which the town planning authority is subject. 61 SPP 3.6 sets out a number of objectives. The second of these objectives reads as follows: (Page 15)
• [T]o ensure that development contributions are necessary and relevant to the proposed development and are charged equitably between those benefiting from the infrastructure and facilities to be provided[.] 62 The principles underlying development contributions include the following: 63 The City, in its submissions, questions a consideration of 'need' by reference only to the immediate capacity of the local road network. 64 While the City accepts that the proposed bridge will be used by regional traffic and that the public at large will benefit from it, it argues that this is not fatal to the appropriateness of a requirement for a contribution. Counsel for the City submits that the bridge will be built and he argues that future residents in Village 7B would plainly benefit from the bridge. 65 Additionally, the City argues that the road network with the bridge is the preferable planning outcome. The bridge, it is submitted, would improve the road network through connectivity and provide additional choice, robustness, and flexibility, as well as reduced travel times. These outcomes, it says, are consistent with the principles established by Liveable Neighbourhoods, which seek to establish a highly interconnected street network. 66 The City submits that, for the reasons set out above, the bridge is the preferred planning outcome, primarily for Lot 4, but also for the other subdivisions because it benefits all of those developments to a greater or lesser extent. 67 The joint statement of the traffic experts, Mr Emmerson Richardson and Mr Steven Piotrowski called by the City, Mr Evan Robert Lloyd called by LWP and Mr Behnam Bordbar called by the Intervener, agreed that the key question is: Is the existing road network adequate to accommodate the additional traffic volume generated by proposed further development that will use the road network? (Page 16)
68 The traffic experts responded in the affirmative for Ellenbrook Villages 7A and 7B, Lot 4 and the Oakover land, subject to some local intersection upgrades to the south of the Oakover land, and in the negative for potential regional developments. 69 In a supplementary joint statement, the traffic experts agreed that if the bridge is built at some time in the future then there would be road user benefits to the whole community including the future residents of both Village 7B and the Oakover land. 70 In the context of the evidence provided, the issue is whether 'clearly demonstrated need' referred to in SPP 3.6 should be interpreted solely in terms of whether the existing road network is adequate to accommodate the additional traffic volume generated, or in the broader context of transport benefits, drawing on the principles established by Liveable Neighbourhoods. The Tribunal is inclined towards the broader view. 71 Accordingly, in regard to the first leg of the Newbury test, given the benefits to some residents in terms of route choice and improved travel times for some journeys, and accepting the relevance of the somewhat general provisions of an operational policy (Liveable Neighbourhoods), the Tribunal accepts that the condition at issue is for a planning purpose and that this part of the test is met.
Reasonably and fairly relates to the development 72 In Ironbridge, the Tribunal cited a passage in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181, where the Town Planning Appeals Tribunal, drawing on Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; 54 LGRA 110; 53 ALR 632, determined in relation to the second leg of the Newbury test as follows: (Page 17)
proof that the condition directly matches the extent of changes that the subdivision will produce. The test is that the condition fairly and reasonably relates to the subdivision not that it springs directly from the needs produced by the development. … It is sufficient if the condition can be said to reasonably arise from the fact of the subdivision. This may, in appropriate circumstances, allow an authority to impose a condition which also benefits the public or which primarily is for a generalised community need. The essential test is that there also be a nexus with the fact of subdivision. 73 As we have earlier observed, the joint statement of the traffic experts in this matter established that the existing road network is, subject to some local intersection upgrades to the south of the Oakover land, adequate to accommodate the additional traffic volume generated by the proposed further development. 74 The traffic experts also take the view that the existing road network is not adequate to accommodate the additional traffic from future regional developments to the north. To accommodate future regional development, the experts agree that the construction of the Perth Darwin National Highway is required and, in addition, construction of the bridge over Ellen Brook may be required depending on the scale and timing of the regional developments and associated future planning. 75 The City must at some level accept this, because the City does not appear to have at this stage sought to preserve the 25 metre road reserve alignment of the future local distributor on Railway Parade identified in the North-East Corridor Extension Strategy in the Village 7B Development Plan. 76 That aside, the City contends that, with the bridge, the road network 'is significantly better than the road network without the bridge'. It says that the development proposals must be considered in their full context and not in a narrowly confined way and, when considered in a broader context, the proposals by LWP and the Intervener contribute to a relevant need. 77 While we accept that the Village 7B and Oakover development proposals themselves need to be considered in their entirety for the purpose of this part of the test, that consideration should not extend to any other proposed or future development in the area. In spite of the fact that, should the bridge be constructed, there would be road user benefits to the whole community including the future residents of the subject developments, there is simply no evidence that the Village 7B or Oakover developments create or contribute to the need for the bridge. (Page 18)
78 The Tribunal therefore concludes that the second leg of the Newbury test is not satisfied for Village 7B or the Oakover land.
Not unreasonable 79 It follows that because the second leg of the Newbury test is not satisfied, then the condition at issue is unreasonable and should not be imposed. The third leg of the Newbury test is therefore not satisfied.
Conclusion 80 A valid planning condition is required to serve a planning purpose, it must reasonably and fairly relate to the development and must not be so unreasonable that no reasonable planning authority could have imposed it. While the condition under review, in our view, meets the first leg of the Newbury test, it fails in regard to the other two. The Tribunal therefore concludes that the condition should not be imposed. 81 However, should it be that we are incorrect in coming to this conclusion, then we next consider the second issue, namely whether the City has the power to recover part of the cost of future infrastructure from a developer in the absence of a formally constituted DCA and DCP.
Whether the City has the power to seek a contribution from LWP in the absence of a formally constituted DCA and DCP 82 The City submits that to answer this question the Tribunal needs to inquire into the intended purpose of cl 5A.2 and whether it is a necessary implication of that intended purpose that its inclusion in the Scheme excludes the possibility of imposing a cost-sharing condition through any mechanism other than through a Development Control Area and associated Development Contribution Plan, no matter what the circumstances. 83 The City accepts that where there are multiple land owners affected and where there are multiple items of infrastructure, the mechanisms required to calculate the appropriate costs and to then give effect to the costsharing arrangement can be quite unwieldy and difficult to incorporate within a structure plan. 84 Therefore the City suggests that the imposition of a requirement for a developer to contribute to the cost of infrastructure through a structure plan is appropriate only for reasonably simple cases. The City considers that this is such a case. It argues that cl 5A.2 is designed to facilitate and expand the local government's powers to deal with more complicated (Page 19)
shared infrastructure costs in much more complex cases than the one under review, suited to multiple landowner cases, multiple infrastructure items and large land areas. 85 The City further submits that it cannot be a necessary implication of incorporating into the Scheme a mechanism for dealing with complex costsharing arrangements that there is no discretion available for local government to deal otherwise with simple costsharing arrangements because, understood in its proper context, cl 5A.2 provides a facilitative power and is not intended to limit the powers under cl 5A.1.9. 86 LWP on the other hand argues that the issue is whether the imposition of a requirement for LWP to contribute to the cost of infrastructure outside the area the subject of the relevant Development Plan is a purpose for which cl 5A.1.9 confers powers on the City. 87 It submits that the only way in which the City can require developers to make contributions to the cost of constructing infrastructure that services their development along with one or more other proposed or possible developments, is under cl 5A.2, regardless of whether or not the infrastructure is to be located within the structure plan area. 88 It also argues that cl 5A.2 confers on the City the power to require developers to contribute to the costs of infrastructure, which services their developments and other proposed or possible developments, through the implementation of DCPs. This power, it submits, is narrower than the power conferred by cl 5A.1.9. 89 LWP submits that the usual rule of construction is that, where a legislative instrument explicitly gives a power by a particular provision which prescribes the mode in which the power shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general provisions in the same instrument which might otherwise have been relied on for the same power. Based on this argument, it concludes that the general power conferred by cl 5A.1.9 is not a source of power to require a developer to contribute to the cost of constructing infrastructure as defined in cl 5A.2.3. The only source of power to require such contributions to infrastructure is the specific power in cl 5A.2. 90 The Intervener submits that infrastructure can fall into one of three categories. The first relates to a requirement to upgrade existing infrastructure as a direct consequence of development. Given a clear nexus, the need for upgrading and the fact that quantification of the (Page 20)
upgrade is easily quantified, the Intervener argues that the approach of an imposition of a condition is appropriate. 91 The second category is where a particular development of itself requires the introduction of new infrastructure. Once again, a condition requiring a contribution to the cost of that infrastructure can be validly imposed because the link between that new infrastructure and the development is objectively ascertainable. 92 The third category, in the Intervener's view, is where some district or regional infrastructure might be required and a variety of landowners may have a link to that infrastructure. In that case, the cl 5A.2 Development Contribution Area approach should be applied. 93 In Landcorp and City of Stirling [2011] WASAT 202 at [26], the Tribunal said that the terms of a planning scheme: … will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and not an overly technical way, and in a fashion which will best achieve their evident purpose. (Chiefari v Brisbane City Council [2005] QPELR 500 at 502 per Wilson J; referred to by the Tribunal in Galloway and Associates and City of Melville [2007] WASAT 238 at [41]). 94 Nothing in LWP's submissions causes us to deviate from that view. While we accept the submission of LWP that the power conferred by cl 5A.2 of the Scheme is narrower than the power conferred by cl 5A.1.9, we do not agree that it is intended that cl 5A.2 provides the only mechanism for requiring developers to contribute to infrastructure costs. 95 The Tribunal considers that the approach suggested by the Intervener is the correct approach. This approach is not substantially different from what is put forward by the City, except that we disagree that this case is a simple one. It very clearly is not. 96 The Tribunal considers that where the City reaches the view that a contribution by a developer towards infrastructure costs is required, the City must also consider whether that should be achieved by the imposition of a condition of development approval or whether the Scheme needs to be amended to include a new DCA, followed by the preparation of a DCP for that area. What determines the outcome of that decision will very much depend on the facts at the time, but in general terms we consider that appropriate deliberations would centre around the extent to which the relevant development or developments contribute to the need for the infrastructure in question, the number of developments involved, the (Page 21)
amount of the required contributions and the extent to which there are also regional and district needs for the infrastructure in question. 97 For the following reasons, namely: • the Cityis seeking a contribution for the bridge which encompasses three different landholdings, one of which has yet to be rezoned under the MRS for urban purposes; • the bridge is located outside the area of both the development plan for Village 7B and any future development plan for the Oakover land; • while the subject developments will gain some transport benefits should the bridge be constructed, there is no 'clearly demonstrated need' for the developments under review in terms of the parameters established by SPP 3.6; and • the expert evidence of the traffic experts is that construction of the bridge over Ellen Brook may be required depending on the scale and timing of the regional developments and associated future planning and thus a substantial function of the bridge would appear to be to serve future regional transport needs, the Tribunal takes the view that in this case it is inappropriate for the City to impose the requirement for contribution to the cost of the bridge other than through a DCP adopted for a DCA pursuant to cl 5A.2 of the Scheme.
Orders 98 The Tribunal makes the following orders: I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT (Page 22)
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