MACLIVER and WESTERN AUSTRALIAN PLANNING COMMISSION
[2018] WASAT 104
•18 OCTOBER 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MACLIVER and WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASAT 104
MEMBER: MS R MOORE (MEMBER)
HEARD: 7 JUNE 2018
DELIVERED : 18 OCTOBER 2018
FILE NO/S: DR 407 of 2017
BETWEEN: MICHAEL MACLIVER
PETER MACLIVER
WENDY MACLIVER
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Condition of subdivision approval Condition requiring area to be provided for public open space Whether condition should be imposed having regard to DC 2.3 Whether sufficient existing public open space in the locality Whether the proposed subdivision generates a need for public open space
Legislation:
City of Kalamunda Local Planning Scheme No 3
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 251(2)
Town Planning and Development Act 1928 (WA)
Result:
Application for review dismissed
Decision to affix condition is affirmed
Category: B
Representation:
Counsel:
| Applicants | : | B Foley & B Foley & B Foley |
| Respondent | : | DM Underwood |
Solicitors:
| Applicants | : | Lavan |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Reid v Western Australian Planning Commission [2016] WASCA 181
Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Decision under review
These proceedings involve an application brought by Mr Michael Macliver, Mr Peter Macliver and Ms Wendy Macliver (applicants) pursuant to s 251(2) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Western Australian Planning Commission (Commission or respondent) made on 11 December 2017 to affix condition number 14 on the granting of subdivision approval of 23 Kalamunda Road, Kalamunda (site or subject site) into 7 lots (6 survey strata lots and 1 common property lot).
Condition 14 requires the applicants to cede an area of land to be reserved as public open space as follows:
An area of land of at least 205.19m2 in area, in a position to be agreed with the Western Australian Planning Commission, being shown on the diagram or plan of survey (deposited plan) as a reserve for public open space 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 by the Crown. (Local Government)
Site and locality
The site to be subdivided is approximately 2,051m2 in area, has frontage to both Boonooloo and Kalamunda Roads and is located approximately 50 metres south of the intersection of Boonooloo and Kalamunda Roads, within the suburb of Kalamunda.
There are a number of reserves within the suburb of Kalamunda and within 1 kilometre of the subject site, including:
•Stirk Park;
•East Terrace Reserve;
•Bunbar Way Reserve;
•Kostera Oval and Kalamunda Sporting Precinct;
•The Old Railway Reserve;
•Brine Moran Reserve; and
•Kalamunda Primary School Sporting Fields.
The parties disagreed on the extent to which these parks, reserves and sporting fields provide sufficient public open space.
Planning framework
The site is zoned Urban under the Metropolitan Region Scheme (MRS) and Residential R30 under the City of Kalamunda Local Planning Scheme No 3 (LPS 3).
The following Commission planning policies are relevant to the imposition of condition 14 requiring the ceding of land for public open space:
•Development Control Policy 2.2 Residential Subdivision (DC 2.2);
•Development Control Policy 2.3 Public Open Space in Residential Areas (DC 2.3);
•Liveable Neighbourhoods (2009) (LN); and
•Liveable Neighbourhoods (Draft 2015) (draft LN).
In particular, cl 3.1.1 of DC 2.3 provides that the Commission's normal requirement in residential areas is that 10% of the gross subdivisible area of the land to be subdivided is to be given up, where practicable, free of cost by the subdivider of the land as a Reserve for Recreation and that in determining the gross subdivisible area the Commission deducts any land which is surveyed for schools, major regional roads, public utilities sites, municipal use sites, or, at its discretion, any other nonresidential use site.
The issue
The parties agreed that the issue for determination by the Tribunal in this matter is whether the condition requiring the ceding of land for the purpose of public open space is appropriate taking into consideration the planning framework, the amount of public open space existing in the locality and whether the proposed subdivision generates a need for additional public open space within the locality. In addition, the respondent says that the Tribunal should take into account whether the deletion of this condition will set an undesirable precedent for public open space contributions for future infill developments.
Discussion
It was the applicants' position that condition 14 should not be imposed on the subdivision approval on the basis that there is sufficient public open space within the locality by reference to both a 400 metre and 800 metre walkable catchment area surrounding the subject site. The applicants contended that the proposed subdivision does not generate a need for additional public open space in the locality, as the provision of such space is already supplied and that the condition does not satisfy the Newbury Test in terms of nexus. Further, the applicants argued that:
If people live beyond 800 metres from such public open space and wish to subdivide in an infill situation and have a shortfall in their little patch of the world, then it's appropriate for them to cede land for such purposes or to provide cash in lieu to buy such land to address the shortfall in their locality [but] it is inequitable for respondents, who don't require parking, for example, to be paying for parking at the park that's directly across the road.
(ts 115, 7 June 2018)
The respondent disagreed with these contentions and was of the view that condition 14 is warranted in these circumstances and had concerns about the methodology used by the applicants' planning expert to calculate the amount of existing public open space in the locality. It was the respondent's position that the planning policy framework clearly and consistently sets out the way that public open space contributions are to be calculated, namely that 10% of the gross subdivisible area is to be ceded as public open space to the Crown, and that distance from the site is not a determinative factor in this. The respondent contended that adopting the applicants' methodology for calculating public open space would be a significant departure from policy. They were of the view that in this case, where the suburb of Kalamunda as a whole has been assessed as having an undersupply of public open space as well as an issue with the quality of the existing public open space, the result would be an unfair burden on sites located further away from existing public open space.
The applicants acknowledged that there has been a long standing policy position in Western Australia of requiring subdividers to provide 10% of the gross area of a site for public open space purposes but contended that the policy is not being applied by the respondent correctly in the circumstances of this matter. They argued that this proposal is a small infill subdivision in an area that pre-dates the Town Planning and Development Act 1928 (WA) and that the locality for the purposes of assessing the requirement for public open space contribution should be the 400 and 800 metre walkable catchment area rather than the whole suburb of Kalamunda.
In essence, the parties disagreed on the appropriate methodology to be used in calculating the amount of public open space available in the locality, what area is to be taken as the locality, and how this relates to the relevant planning framework documents which reference a figure of 10% public open space.
The parties both called planning experts to give evidence in this matter. Mr Ben Carter appeared for the applicants and Ms Katherine Nunn appeared for the respondent.
Mr Carter acknowledged the respondent's position that 10% public open space is sought from subdividers for all subdivisions greater than 5 lots but said that this was regardless of context and it was his view that this blanket 10% contribution should be questioned in this case. Mr Carter believed that the methodology used in the applicants' statement of issues facts and contentions (SIFC) was useful in objectively assessing the need for any additional public open space to service the future residents of the proposed subdivision particularly given his view that there are deficiencies in LN and draft LN.
It was Mr Carter's opinion that relying on the City of Kalamunda Public Open Space Strategy (POS Strategy) and the respondent's position that there is a deficiency of public open space in the City of Kalamunda and the suburb of Kalamunda is problematic because the general public is not conversant with different types of town planning reservations and open space is generally a common classification to the public in terms of space available for public use and the analysis of public open space in the locality should be more 'rudimentary'. He said that while there is 6.1% local public open space in the gross subdivisible area of the suburb of Kalamunda, only the immediate locality to the site is relevant because private vehicle transport is required to access the whole suburb and an immediate catchment analysis is more representative of actual human behaviour and that residents will access public open space on foot and areas that are less than 1 kilometre from their home.
Mr Carter used a 400 metre walkable catchment radius (5 minute walk) from the subject site for the purposes of defining the locality and calculated the availability of 19.83% local public open space in the immediate locality of the subject site prior to deductions in the gross subdividable area as identified in LN and found therefore an oversupply of public open space. Mr Carter also calculated that there was 12.46% public open space within 800 metres of the subject site.
Mr Carter stated that in the wider suburb of Kalamunda there appears to be an undersupply of public open space and that in the future there may be instances where it may be appropriate for the respondent to seek contributions of land or cash for public open space but in the circumstances of this case there is no need for additional local open space to service the needs of future residents of this development. He also referred that the POS Strategy which noted an abundance of land zoned R5 and R10 in the suburb of Kalamunda which means that the necessity to achieve 10% public open space is reduced.
Ms Nunn was of the view that a radial catchment area of 400 metres or 800 metres to calculate the distribution and amount of public open space in any particular area should not be applied because it will lead to situations such as this where one subdivision may be located close to a large area of existing public open space and another subdivision may have a 100% shortfall in public open space, resulting in an unfair burden on a particular subdivision even though the demand created by each subdivision is the same. It was Ms Nunn's opinion that the appropriate locality should be a larger area such as a suburb and in this case that suburb is the suburb of Kalamunda. In paragraph 19 of her witness statement, Ms Nunn said that this is:
… on the basis that the calculation of POS requirements and future population statistics is defined by suburb in the POS Strategy [and that] a more confined locality would have a distorting effect on the calculation of POS requirements, because of the Subject Land's proximity to district open space (Stirk Park) which is intended to provide for recreation needs of a wider area[.]
In regards to the appropriate methodology to be used to calculate the amount of existing public open space in the locality, the Tribunal prefers the evidence of Ms Nunn and finds that in this case it is appropriate to consider the whole of the suburb of Kalamunda as the relevant locality. It is noted that in previous decisions the Tribunal has considered it appropriate to look at both a 400 metre and 800 metre walkable catchment for the assessment of existing public open space but those cases generally did not have the benefit of a POS Strategy. In this case the City of Kalamunda has recently adopted a POS Strategy which identifies the suburb of Kalamunda as having a shortfall of public open space. The Tribunal accepts that the POS Strategy states that as the Kalamunda urban area has significant areas of R5 or R10 zoned blocks and a significant amount of regional open space there is a reduced necessity for the provision of 10% public open space, but the POS Strategy also states that 'given Kalamunda is significantly below sports space requirements, it will be the provision of sports space POS that needs to be rectified'. The Tribunal does not accept Mr Carter's opinion in regard to the limitations of residents driving to public open space further than 400 or 800 metres away from their residence and notes that there is no evidence of this before the Tribunal.
The Tribunal is persuaded by the respondent's submissions that the locality should be determined in accordance with the strategic planning that has occurred for the area and that requiring calculations for each proposed subdivision based on a 400 metre or 800 metre walkable radius is not logical in the context of a recently adopted POS Strategy. In this case the Tribunal finds that there is a shortfall of public open space in the locality of the subject site.
The applicants made submissions that condition 14 was not a valid condition as it did not satisfy all three limbs of the Newbury test. The Newbury test refers to 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. In Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (Temwood), at 57 the High Court summarised that for a condition to be valid the condition must satisfy the following:
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.
More recently in Reid v Western Australian Planning Commission [2016] WASCA 181 (Reid) at [22] and [26], the Court of Appeal (WA) emphasised that for a condition to be valid, there must be a real connection between the condition imposed and the proposed subdivision, with the connection being between the purpose for which the condition is imposed and the likely or possible consequences of the subdivision if approved.
In this case, the applicants did not dispute that there is a planning purpose for a condition requiring subdividers to cede land for the provision of public open space, they argued that there was no need for the provision of public open space in the particular circumstances of this case and therefore condition 14 does not reasonably and fairly relate to the proposed subdivision.
The Tribunal is not persuaded by the applicants' submissions and finds that condition 14 does reasonably and fairly relate to the proposed subdivision because the subdivision will give rise to additional dwellings and a subsequent increase in demand for public open space in the locality, and the Tribunal has found that the locality currently has a shortfall of public open space. The Tribunal is satisfied that a requirement for 10% of the gross subdividable area of the site to be ceded for public open space is a fair and equitable means of providing access to public open space for all of the current and future residents of the suburb of Kalamunda.
In regard to the third limb of the test, the Tribunal finds that condition 14 is not so unreasonable that no reasonable planning authority could have imposed it. This is in light of the fact that this condition reflects a policy that has been applied in subdivision assessment in Western Australia for the past 65 years.
Therefore the Tribunal finds that in this case the imposition of condition 14 on the subdivision approval satisfies the Newbury test, as expressed in Temwood, and is in accordance with Reid. The Tribunal finds no cogent reason to depart from the policy objectives and requirements of DC 2.3. It is therefore appropriate to dismiss the application for review and affirm the affixing of condition 14 on the grant of subdivision approval for the subject site.
Orders
For these reasons the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to affix condition 14 on the grant of subdivision approval of 23 Kalamunda Road, Kalamunda is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R MOORE, MEMBER
18 OCTOBER 2018
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