LWP Property Group Pty Ltd and City Of Swan - [2006] WASAT 308

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LWP PROPERTY GROUP PTY LTD and CITY OF SWAN [2006] WASAT 308

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 21 SEPTEMBER 2006

DELIVERED : Edited reasons delivered extemporaneously on 21 SEPTEMBER 2006

FILE NO/S: DR 175 of 2006

BETWEEN: LWP PROPERTY GROUP PTY LTD
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Town planning - Development plan - Review of requirement that developer maintain landscape areas until 2014 or five years after sale of last lot - Requirement unreasonable and inappropriate - Maintenance requirement should generally be limited to two years

Legislation:

City of Swan Town Planning Scheme No 9, cl 2.3.8.1, cl 9(2)

Result:

Application for review allowed
Maintenance requirement varied to two years

Category: B

Representation:

Counsel:

Applicant: Mr PJ McQueen and Mr C Marais
Respondent: Mr DF Nicholson

Solicitors:

Applicant: Lavan Legal
Respondent: McLeods

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An applicant sought review of a development requirement that it maintain landscape areas, to be dedicated as public open space, until the earlier of 2014 or five years after the sale of the last lot in a subdivision.
The Tribunal gave an oral decision in which it allowed the application for review and varied the maintenance requirement to two years after the completion of each relevant stage of public open space. The Tribunal considered that a five year maintenance requirement was unreasonable and inappropriate. Unless vegetation, equipment or structures installed by a subdivider/developer in an area to be dedicated as public open space is different in standard or character to that contemplated in the local government's requirements, maintenance by the subdivider/developer for two years after completion of the landscape area is a reasonable rule of thumb.
The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

Introduction

These proceedings involve an application for review, brought pursuant to cl 9(2) of the conditions applicable to the special purpose zone under the City of Swan Town Planning Scheme No 9 (TPS 9 or Scheme) of the decision of the City of Swan (City) to impose a requirement on its approval of the Ellenbrook Village 6 Development Plan (DP) under the Scheme.
The DP relates to land referred to as Village 6 of Ellenbrook (Village 6) which is wholly comprised in Lot 1 on plan 18925. Village 6 has an area of approximately 182 hectares, and, in accordance with the DP, will ultimately accommodate approximately 1900 dwellings, with a population of approximately 5500 residents, a primary school, a village centre, roads and public open space. The public open space identified in the DP has a total area of 29.27 hectares, and comprises 16.67 hectares of passive/active open space and 12.6 hectares of retained wetlands.
The Scheme relevantly establishes a three-tiered strategic planning framework for urban development of Village 6 and other land in the Ellenbrook area, namely, structure planning, development planning and detailed site planning. The structure plan for Ellenbrook has been approved by the City, and provides the broad structure for urban development.
Under the Scheme, the general purpose of a development plan is to refine the proposals in a structure plan, and to guide development. On 3 May 2006, the City approved the DP, subject to a number of requirements, including the following:
"The maintenance of all landscape areas (including drainage swales, including any proposed drainage) in Village 6 to be handed over to the City of Swan 5 years from the sale of the last lot in the Village."
It appears that this requirement was not recommended by the City's officers, but rather, was added by councillors at the City's meeting. The City's stated reason for this requirement was as follows:
" ... to transfer the financial responsibility onto the proponent for a longer period of time, which, otherwise, would have been a burden on the City without the creation of the rate base to support them. In addition, all parks and landscaped areas form part of the marketing package as a 'lifestyle' estate by the proponent, and it is considered reasonable that they incur all the costs until the subdivision of the whole village is completed."
Following a request, on behalf of the applicant, for reconsideration of this requirement, on 24 May 2006, the City rescinded its resolution of 3 May 2006, and passed a resolution adopting the DP, subject to a number of requirements, including the following:
"The following statement be included in the Text of the Development Plan documents and the Development Plan:
'The owner/developer of the Ellenbrook Village 6 development shall maintain all landscape areas identified on the Development Plan (including all drainage swales and proposed drainage) or which are subsequently created, until the earlier of July 2014, or 5 years from the sale of the last lot in the village.'"
The application for review is now in respect of this requirement. The applicant seeks a variation to the requirement, limiting its maintenance obligation to two years. The City, ultimately, does not oppose the application for review, but, according to its solicitor's letter to the Tribunal dated 17 August 2006, "does not wish to be seen as consenting to early abandonment by the Applicant of the maintenance of open space it establishes during its marketing phase".
The City's position, as stated in this letter, is as follows:
"In simple terms, the City does not consider it necessary or appropriate to oppose the Application for Review. The City's position is that it cannot commit to accepting responsibility for the maintenance of open space in the subject Village 6 until the earlier of July 2014 or 5 years from the sale of the last lot in the Village having regard to its other heavy financial commitments and budgetary constraint. If the developer chooses to terminate its commitment to the maintenance of open space earlier than the date on which the City is able to commit to maintenance, then the open space area will go unmaintained for a period of time."

Consideration of application for review

The applicant contends that the requirement, as presently worded, cannot be lawfully imposed. It is unnecessary to explore the applicant's arguments in this respect, as the Tribunal considers that the condition requiring maintenance by the owner or developer until July 2014, or five years from the sale of the last lot in Village 6, is unreasonable and inappropriate in any case in the exercise of discretion, bearing in mind the matters for consideration under cl 2.3.8.1 of TPS 9, which include any planning policy, the interests of orderly and proper planning, and the preservation of the amenity of the locality.
Moreover, the Tribunal considers that the applicant's alternative requirement is both reasonable and appropriate, bearing in mind these matters for consideration.
All public open space in Village 6 has been designed, and will be constructed and maintained, in accordance with the City's Landscape Guidelines for Streetscapes and Public Spaces (Landscape Guidelines) dated 1 October 2005. Clause 10 of the Landscape Guidelines states, in part, as follows:
"The intent of these provisions is to provide for the proper evaluation of maintenance programs and costs to ensure that any initial maintenance issues are addressed, prior to handover of infrastructure to the City. ... Maintenance by the Developer of a landscape development, installed by the Developer for streetscapes and/or public space is for a minimum of 2 years, with 5 to 10 years by agreement between the Developer and the City."
The City's Policy, E13.3, entitled Public Open Space - Residential Areas, adopted in February 1992, states as follows, under the heading, "Maintenance Clearance":
"Upon granting of practical completion of works, a two (2) year maintenance period shall apply, which will cover landscape construction or design defects. Where major defects become evident during this period, the local authority may require these works to be rectified immediately at the cost of the subdivider.
At the expiry of the maintenance period, and following rectification of any defects, the subdivider or his representative shall apply in writing to Council for maintenance release. Maintenance release by Council will be subject to the satisfactory rectification of defects, the supply of 'as constructed' drawings of the landscape and irrigation system and the local authority acceptance of the works."
Mr Tim Trefry, a consultant town planner who gave evidence on behalf of the applicant, stated that, in 18 years of town planning practice, he has never come across an authority imposing a maintenance period of the order required by the City in this case. In Mr Trefry's experience, developers are usually required to maintain public open space for approximately two years, unless otherwise agreed. He made specific inquiry of a number of major metropolitan local government authorities, which confirmed the accuracy of his experience.
Moreover, the City required only a two year maintenance period for the first five villages at Ellenbrook. The City's requirement in this case, that the applicant maintain public open space in Village 6 until the earlier of July 2014 or five years from the sale of the last lot in the village, is contrary to its own policy framework, and is, in any case, plainly unreasonable and inappropriate.
It is reasonable that, when a subdivider or developer installs vegetation, equipment or structures in a landscape area to be dedicated as public open space, the subdivider or developer is required to ensure that the vegetation is properly established and is in a healthy condition, and that the equipment and structures are properly installed and free of defect. The interests of orderly and proper planning, and the preservation of the amenity of the locality, clearly require that this be the case. These considerations do not, however, warrant or justify a five year maintenance period, in the normal course.
If a subdivider or developer installs vegetation, equipment or structures in a landscape area, to be dedicated as public open space, which are of a different standard or character to that contemplated in the local government's requirements, then it may be reasonable that the subdivider or developer is required to ensure that the vegetation, equipment or structures are maintained beyond the short term. However, as noted earlier, in this case, the landscape areas have been designed, and will be constructed and maintained, in accordance with the council's Landscape Guidelines.
Maintenance by the subdivider or developer for two years after completion of a landscape area is a reasonable rule of thumb, where landscaping accords with the local government's requirements. After two years, most vegetation can be said to be reasonably established, and two years is a sufficient and reasonable period to ensure that equipment and structures are properly installed, and not defective.
The City's Policy E13.3 and its Design Guidelines both refer to a two year maintenance period. The Guidelines' reference to the possibility of a five to ten year maintenance period, by agreement between a developer and the City, is a reflection of the fact that, where landscaping is of a different standard or character to that contemplated in the Guidelines, the developer should reasonably agree to maintain it in the long term, or alternatively, the City will not accept the type or standard of landscaping proposed by the developer. However, that is not the case here.
The City's requirement is also not justified by its reason for imposing the requirement or its statement in its solicitor's letter to the Tribunal. It is not a proper planning purpose, nor is it reasonable, to transfer the financial burden of maintenance from the City to the subdivider/developer, beyond two years in the normal course, simply because the City would otherwise have the financial burden to maintain public open space without the creation of the rate base from the residents who would most benefit from that area. Nor is it a proper planning purpose, or reasonable, to require a subdivider or developer to maintain public landscape areas beyond two years in the normal course, because the subdivider/developer can market the village as a lifestyle estate.
The landscape areas in question are public - not private - open space, to be vested in the City's public ownership for the benefit of the community. Although, no doubt, the subdivider/developer will obtain a marketing benefit from the establishment of good quality public open space, the establishment of the open space involves the dedication of land for a public purpose, and expenditure on its development as a public amenity.
Moreover, the City's solicitor's letter to the Tribunal is premised on a misunderstanding, namely, that the subdivider/developer has an ongoing or long-term commitment to maintain an area which it has established for a public amenity. There is no issue of termination or early abandonment of an obligation on the part of the subdivider/developer in this case.
The interests of orderly and proper planning, and the maintenance of the amenity of the locality, require that public open space be appropriately sited and established by a subdivider/developer, and thereafter properly maintained by its owner - namely, the local authority - for the benefit of the community.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.Paragraph (n) of the requirements subject to which the respondent adopted the Ellenbrook Village 6 Development Plan (Development Plan No 006) on 24 May 2006 is varied by deleting the words "until the earlier of July 2014, or 5 years from the sale of the last lot in the village" and inserting in their place the words "for two years after the completion of each relevant stage of public open space in Village 6 as depicted on Figure 10 of the Development Plan or as amended".

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER