| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : McLEOD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 25 MEMBER : MS M CONNOR (MEMBER) HEARD : 19 NOVEMBER 2009 DELIVERED : 16 FEBRUARY 2010 FILE NO/S : DR 164 of 2009 BETWEEN : JOANNE MAREE McLEOD Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning Subdivision of lot into four lots Condition imposed requiring public open space contribution Second Newbury test Public open space in excess of generally accepted 10% requirement Deficiency in public open space providing the range of activities associated with a local park Demand generated by three additional dwelling not sufficient to warrant imposition of condition Potential for similar proposals eventuating in the locality Cumulative effect Diminution of 'high amenity value'
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Legislation: City of Albany Town Planning Scheme No 1A
Planning and Development Act 2005 (WA), 152, s 153, s 251(2)
Town Planning and Development Act 1928 (WA), s 20C Result: The application for review is upheld in part
Conditions of approval varied Category: B
Representation: Counsel:
Applicant : Mr G McLeod
Respondent : Ms R Young
Solicitors:
Applicant : Minter Ellison
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98
Langer Nominees Pty Ltd and Western Australian Planning Commission [2007] WASAT 137
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
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 The matter concerned two conditions of subdivision approval for No 10 (Lot 100) Grey Street, Albany. Agreement was reached between the parties in respect to one of the two conditions. Consequently, the matter proceeded to final hearing with the only issue in dispute being condition 9, which required cashinlieu of public open space in accordance with s 153 of the Planning and Development Act 2005 (WA) and cl 4.3.2 of the City of Albany's Public Open Space Contribution Policy. 2 The principal issues that arose for determination in this matter were whether the condition requiring the ceding of land for the purposes of public open space fairly and reasonably related to the subdivision and, if so, whether the condition was fair and reasonable in the circumstances of this case, taking into consideration the following matters: • the planning framework; • the public open space existing in the locality; • whether the proposed subdivision generates a need for additional public open space within the locality; and • whether similar proposals of subdivision are likely to eventuate in the locality. 3 The Tribunal found that the condition had a planning purpose, and was satisfied that there was a nexus between the condition and the proposed subdivision. As to whether the condition was fair and reasonable in the circumstance of the case, the Tribunal found that the demand generated by the subdivision was not of itself sufficient reason to impose a condition requiring the ceding of land for public open space. However, the Tribunal was satisfied that there was potential for similar proposals to eventuate in the locality, and was concerned that the cumulative effect would diminish the existing 'high amenity value' and character of the locality. 4 The application for review was upheld in part, in that the reworded condition as agreed to by the parties was substituted. The intent of condition 9 was affirmed by the Tribunal, although the wording of the condition related to an area of land rather than a cashinlieu contribution. (Page 4)
Introduction 5 Planning Solutions (Aust) Pty Ltd, on behalf of Joanne Maree McLeod (applicant), made an application to the Western Australian Planning Commission (respondent or WAPC), on 9 January 2009, for approval to subdivide No 10 (Lot 100) Grey Road, Albany (subject land) into two lots of 1159 square metres and 270 square metres in area. An amended application, the plan of which is the subject of this review, was made on 20 February 2009 seeking approval for the subdivision of the subject land into four lots ranging in size from 270 square metres to 426 square metres (see Att 1). It is intended that proposed Lot 1 and Lot 2 will have shared access to Rowley Street via a battleaxe accessway, and Lot 3 and Lot 4 will have shared access to Grey Street East via another battleaxe accessway. 6 The respondent approved the application, subject to 14 conditions and seven advice notes, on 2 April 2009. 7 The applicant, on 30 April 2009, made application under s 251(2) of the Planning and Development Act 2005 (WA) (PD Act) to have condition 4 and condition 9 of the approval reviewed. 8 These conditions read as follows: … 4. A Restrictive Covenant pursuant to section 129BA of the Transfer of Land Act 1893 (as amended) is to be placed on the Certificates of Title of the proposed lot(s) advising of the existence of a restriction on the use of the land. Notice of this restriction to be included on the Deposited Plan. The restrictive covenant is to state as follows: Direct access to Grey or Rowley Streets from proposed Lots 1 and 4 is prohibited. (Local Government) … 9. The City of Albany is prepared to accept cashinlieu of Public Open Space as a condition of subdivision in accordance with Section 153 of the Planning and Development Act 2005 and also clause 4.3.2 of the Councils [sic] "Public Open Space Contribution Policy". (Local Government)[.] … (Page 5)
9 It has been agreed by the parties that condition 4 be deleted and replaced with the following condition: 4. The Applicant entering into an agreement with Local Government to the satisfaction of the Western Australian Planning Commission which restricts access to proposed Lots 1 and 4 to the reciprocal rights of access way referred to in Condition 6 until such time as dwellings are constructed on proposed Lots 1 and 4. Caveats on the titles of proposed Lot 1 and 4 are to be lodged by the Applicant to ensure prospective purchasers of the proposed lots are advised of the agreement. (Local Government). 10 Given this agreement, the matter proceeded to final hearing with the only issue in dispute being condition 9.
Subject land and its context 11 The subject land is more particularly described as Lot 100 Grey Road, Albany, being the land comprised in Certificate of Title Volume 1144 Folio 134, and is 1429 square metres in area. 12 The southern boundary of the subject land fronts Grey Street East while its western boundary fronts Rowley Street. The land slopes from northeast to southwest, with a difference of approximately 7 metres Australian Height Datum (AHD) between the highest point (59.32 AHD) to the lowest point (52.25 AHD). 13 There is an existing dwelling and shed located on the eastern portion of the lot, which has vehicular access off Grey Street East. It is intended that the existing shed will be removed. 14 The subject land is located approximately 430 metres east of York Street, which is the main street of the town centre; 780 metres north of Spencer Lawley Park; 110 metres west of Mount Clarence parkland; and 400 metres south of Albany Senior High School.
Planning framework 15 The subject land is zoned Residential with a density coding of R30 under the City of Albany Town Planning Scheme No 1A (TPS 1A). The proposed subdivision is consistent with the lot size requirements of the R30 coding. 16 The respondent and the City of Albany (City) have prepared a number of planning instruments that are relevant in the consideration and determination of this matter, and include the following: (Page 6)
i) TPS 1A; ii) Statement of Planning Policy No 1: State Planning Framework (Variation No 2) (SPP 1). This policy 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 decisionmakers 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 decisionmaking across all spheres of planning. The plans, policies and strategies that form the State Planning Framework are listed in Pt B of SPP 1. The operational policies and strategy listed in SPP 1 relevant to this matter are: • Development Control Policy 1.1 Subdivision of Land General Principles (DC 1.1). This policy sets out the general principles which guide the respondent in determining applications for the subdivision of land. Clause 2 of DC 1.1 includes the following relevant policy objectives: • To facilitate development which achieves appropriate community standards of health, safety and amenity. • To make appropriate arrangements for development contributions, where necessary and relevant, for the orderly and proper planning of the locality containing the subdivision. • To make appropriate arrangements, where necessary for planning purposes, for the ceding or transfer of land. Clause 3.9 of DC 1.1 provides that the WAPC may impose conditions requiring developer contributions including the ceding of land for public open space (POS). • Development Control Policy 2.2 Residential Subdivision (DC 2.2). This policy sets out the respondent's policy requirements in respect to the (Page 7)
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. • Development Control Policy 2.3 Public Open Space in Residential Areas (DC 2.3). The purpose of this policy is to ensure that the provision of POS allows for a reasonable distribution of land for active and passive recreation in each locality (cl 1.2). One of the policy objectives of DC 2.3 is to ensure that all residential development in the State is complemented by adequate, welllocated areas of POS 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: The [respondent's] normal requirement in residential areas is that, where practicable, 10 percent 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) [now Section 152 of the PD Act] as a Reserve for Recreation. Clause 3.1.3 of DC 2.3 states that: In terms of location and distribution of public open space, the Commission favours an overall balance between incidental open space, readily accessible to all residents and recreational open space in larger units suitable for active leisure pursuits … Clause 3.1.5 of DC 2.3 states that: (Page 8)
The Commission will not normally require an open space contribution for five lots or less, provided a contribution is not required by a provision of a town planning scheme or approved structure plan, where: • the applicant demonstrates to the satisfaction of the Commission that land has already been given up for open space in an earlier subdivision; or • the proposal is within a locality where the Commission, on the advice of the local government, following an assessment of the locality, has concluded that there is sufficient open space in that locality. Clause 3.6 of DC 2.3 states that: The Commission may impose an open space condition where an application would create five lots or less where: • the imposition of the condition would yield an area of land which the Commission and Council agree is adequate and suitable for public open space purposes; or • the local government has identified an existing or potential deficiency of public open space and has an adopted strategy to improve or provide open space by land acquisition in the locality of the subdivision; or • similar proposals containing five lots or less would be likely to eventuate in the locality. Clause 4.3 of DC 2.3 addresses s 153 of the PD Act relating to cashinlieu payments. • Liveable Neighbourhood Edition 4 (2004). The parties referred the Tribunal to Liveable Neighbourhoods and, in particular, Element 4 Public parkland. The relevance of Liveable Neighbourhoods in this case is minimal given that it 'is an operational policy for the design and assessment of structure plans (Page 9)
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(both green title and survey strata proposals) creating between 3 and 5 lots, except in the following circumstances: (a) Similar proposals containing more than 2 lots are unlikely to eventuate in the locality; or (b) A subdivider can demonstrate that the required 10% POS has been previously provided as part of an earlier subdivision of the original landholding. … 4.3 How a contribution is calculated 4.3.1 The contribution amount should be calculated in accordance with the requirements of the Planning and Development Act 2005, except that the contribution amount should be based on the following sliding scale, linked to the maximum lot yield: (a) Creation of 3 lots shall require a POS contribution representing 5% of the value of the gross subdividable land; (b) Creation of 4 lots shall require a POS contribution representing 7.5% of the value of the gross subdividable land; (c) Creation of 5 lots or more shall require a POS contribution representing 10% of the value of the gross subdividable land. 4.3.2 Where it can be demonstrated that a higher lot yield can be obtained from the parent lot such that a lot or lots created under a subdivision has the potential to be further subdivided in accordance with the requirements of the Residential Design Codes (ie a 1000 [square metre] lot is created in an R20 area), the POS contribution shall be based on the maximum lot yield and made payable upon the initial subdivision.
Principal issue 17 The principal issue identified for determination in relation to this matter is: Whether a condition requiring an area of land 71.45 square metres or 107.175 square metres be ceded free of (Page 11)
cost as a 'Reserve for Recreation' should be imposed on the approval for subdivision of the subject land, having regard to the following factors: i) the planning framework; ii) the POS existing in the locality; iii) whether the proposed subdivision generates a need for additional public open space within the locality; and iv) whether similar proposals of subdivision are likely to eventuate in the locality. 18 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) 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. 19 The applicant contended that a condition requiring the ceding of land for POS, in this instance condition 9, cannot be lawfully imposed, because it does not fairly and reasonably relate to the subdivision and is therefore contrary to the second Newburytest. In Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 (Perrymead), a case concerning the review of a condition of subdivision approval which required that an existing unsealed road be upgraded and sealed, the former Town Planning Appeal Tribunal determined in relation to the second Newbury test as follows: (Page 12)
The test of the validity and scope of a condition in this State is whether it fairly and reasonably relates to the development. The decision of [Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386], although in the context of Queensland legislation, stands for the proposition that should have application in Western Australia: the condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree. A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision. The requirement that a condition reasonably relates to the subdivision does not, therefore, allow the Commission or the local authority to use the subdivision or development as a trigger for a future need that does not arise, in part, from the project. There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval. 20 The applicant submitted that there was no nexus between the condition imposed and the subdivision, as there is already sufficient POS in the locality to meet the existing and future needs of the population, and that the proposed subdivision would not have an appreciable effect on the locality. 21 The respondent contended that there is an existing deficiency in the provision of POS in the locality, as there is a lack of formal passive recreation opportunities in a local park context, and that this deficiency will be exacerbated by the increased recreational demands generated by the additional three new dwellings arising from the subdivision. The respondent further argued that there is a high potential for subdivision of lots into three or more lots within the locality, which would only serve to place additional demands on the limited POS currently in existence. 22 There is no question that this condition has a planning purpose. It is a condition which has been imposed in accordance with the respondent's policy framework, which has been developed for legitimate planning purposes. The Tribunal is of the view that the proposed condition is necessary for the orderly and proper planning of the locality of which the subdivision is a part (see [31] below). 23 The Tribunal is satisfied that a condition requiring the ceding of land for POS reasonably and fairly relates to the subdivision. The threshold as expressed in Perrymeadrequires that the condition arise from changes precipitated by the subdivision and does not stem solely from the existence of a public need. There is no requirement that there be exact (Page 13)
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 proposed by the development'. Clearly, the future occupants of the three additional dwellings constructed as a consequence of the proposed subdivision will give rise to demand for POS and, as such, the provision of open space in this instance will benefit the occupants of the additional dwellings as well as the public at large and will serve a proper planning purpose. Given these conclusions, the Tribunal finds that it is not necessary to deal with the submissions relating to the demographic nexus. 24 The question, therefore, is whether the condition is fair and reasonable in the circumstances of this case. 25 The policy framework formulated by the respondent provides the following guidance in respect to the requirement for POS in residential areas, that being: 26 It would seem that DC 2.3 recognises that a subdivision of five lots or less does not generally, of itself, give rise to the need for the provision of additional POS, and that the demand generated from the newly created lots may be absorbed by the existing POS. This position is consistent with the applicant's argument 'that to suggest that the proposed subdivision is going to create any greater need for land than already exists in the locality is going too far'. DC 2.3 does, however, identify circumstances where the imposition of an open space condition may be considered appropriate where an application would create five lots or less, and includes: (Page 14)
strategy to improve or provide open space by land acquisition in the locality of the subdivision; or iii) similar proposals containing five lots or less would be likely to eventuate in the locality. 27 In the context of the planning framework, a condition requiring the ceding of land for POS would not be considered unreasonable if one of the above three criteria were met. 28 The evidence shows that the locality has a 'high amenity value', which includes the provision of POS in excess of the generally accepted State requirement of 10% of the gross subdivisible area. The planning experts, Mr Anthony Duetchmann, a planning officer of the Department of Planning, Mr Jan Van Der Mescht, coordinator of Statutory Planning for the City of Albany, both called on behalf of the respondent, and Mr Paul Kotsoglo, a planning consultant called by the applicant, identified the following areas of POS located with a 400 metre or 800 metre ped shedof the subject land as well as two other areas of POS that were outside the 800 metre ped shed. There was also a general consensus by the planning experts as to the classifications of the functionality of the POS. There were also two other areas of POS identified that were outside the 800 metre ped shed.
PUBLIC OPEN SPACE AREA | PED SHED | CLASSIFICATION | | Mount Clarence | 400 metre | Passive Restricted Informal | | Local Botanical Garden | 800 metre | Passive Restricted Informal | | Wagon Rock Park | 400 metre | Passive Restricted Informal | PUBLIC OPEN SPACE AREA | PED SHED | CLASSIFICATION |
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| Spencer Lawley Park | 800 metre | Passive/Active Unrestricted (Tennis Club) Formal/Informal | | Anzac Peace Park | 800 metre | Passive Unrestricted Informal | | Alison Hartman Gardens | 800 metre | Passive/Active Unrestricted Formal | | Albany High School | 400 800 metre | Passive/Active Consent Required Formal | | Parade Street Park | Outside 800 metre | Not specified | | Old Albany State Park | Outside 800 metre | Passive/Active Unrestricted Formal | 29 The evidence clearly demonstrates that there are considerable areas of POS within the 400 metre ped shed of the subject land, although the range of open space types being provided to meet the need of users and age groups is narrow. There is an obvious deficiency in the provision of suitable areas of POS providing the range of activities associated with a 'local park' within the 400 metre ped shed. Although the high school's facilities increase the range of activities in the locality, they do not remedy the deficiency in this type of POS. The demands of the occupants of the additional three dwellings will only further augment this deficiency. The Tribunal, in this instance, due to the marginal increase in demand, does not consider this alone to be sufficient reason to impose a condition requiring the ceding of land on the proposed subdivision. 30 However, the evidence from Mr Deutschmann and Mr Van Der Mescht demonstrated that there is potential for similar (Page 16)
proposals containing five lots or less eventuating in the locality. The evidence shows that since 2006 there have been eight approved subdivisions for three lots or more within a one kilometre radius of the subject land and that the R coding (R30) and lot sizes of land in the locality will accommodate similar proposals. The Tribunal is not convinced by the applicant's argument that the historic character of the locality will be a disincentive for subdivision. 31 It is the cumulative effect that is of concern to the Tribunal. As attested to by the experts, the locality has 'high amenity value' which is linked to the setting and the quality and quantity of POS in the locality. The gradual increase in density resulting in increased demand on existing POS without the provision of additional POS will only diminish the existing amenity and character of the locality. The Tribunal is not convinced that declining household occupancies will balance the effect of increased densities and anticipated population growth. It is for this reason that the Tribunal considers that it is fair and reasonable to impose a condition requiring the ceding of land for POS on this proposed subdivision. 32 The applicant raised the issue of sustainability and argued that a condition of this nature would be contrary to the principles of sustainability, as such a condition may discourage subdivision and lead to no additional dwellings being created, or increase the price of housing in an already expensive area. The Tribunal agrees with the respondent and does not consider there to be a conflict with the principles of sustainability, as there is a need to balance all impacts, one of which is to ensure that the amenity and character of the locality is not diminished by the resultant subdivision, a factor that could significantly affect the sustainability of the locality. 33 Although the respondent's policies advocate 10% of the gross subdivisible area being given up free of cost for POS, the parties addressed the Tribunal on the basis of the City's policy, which refers to a contribution amount calculated on a sliding scale linked to the maximum lot yield. The policy provides for a 5% contribution for the creation of three lots or 7.5% where the subdivision results in the creation of four lots. The Tribunal was told that the rationale for the sliding scale is premised upon economies of scales. Although the Tribunal is not convinced that the rationale behind the sliding scale is sound and considers that the application of the respondent's policy requirements may have been more appropriate, the parties argued the City's policy requirements and, as such, the Tribunal will proceed on that basis. (Page 17)
34 The respondent argued that, notwithstanding there is an existing dwelling on the subject land, the subdivision resulted in the creation of four lots, and, therefore, a contribution of 7.5% should be required. The applicant argued, and the Tribunal agrees, that the planning impact resulting from the proposed subdivision arises from the creation of three new residential lots and, therefore, the condition should only reflect the additional demand generated by the proposed subdivision. 35 The Tribunal finds that condition 9 of the approval granted by the respondent on 2 April 2009 should be deleted and replaced with a condition that requires a portion of land 71.45 square metres in area ceded as a reserve for recreation and vested in the Crown.
Secondary issue 36 A secondary issue arises if the answer to the principal issue is in the affirmative, that being: Should the condition refer to a payment in lieu of the portion of land required to be set aside. 37 Rather than falling foul of s 153 of PD Act, the parties agreed that a condition specifying a land area rather than a cashinlieu contribution would be acceptable (see Empire Securities Pty Ltd and Western Australian Planning Commission [2005] WASAT 98 and Langer Nominees Pty Ltd and Western Australian Planning Commission [2007] WASAT 137).
Orders 38 For the above reasons, the Tribunal makes the following orders: (Page 18)
Commission which restricts access to proposed Lot 1 and Lot 4 to the reciprocal rights of accessway referred to in condition 6 until such time as dwellings are constructed on proposed Lot 1 and Lot 4. Caveats on the titles of proposed Lot 1 and Lot 4 are to be lodged by the applicant to ensure prospective purchasers of the proposed lots are advised of the agreement (Local Government). ii) Condition 9 is deleted and replaced with the following condition: 9. A portion of land 71.45 square metres in area being shown on the deposited plan as a 'reserve for recreation' and vested in the Crown under s 152 of the Planning and Development Act 2005 (WA). (Page 19)
Attachment 1 (Page 20)
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