Mehtcom 91 Pty Ltd and City Of Gosnells

[2009] WASAT 24

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   MEHTCOM 91 PTY LTD and CITY OF GOSNELLS [2009] WASAT 24

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   29 JANUARY 2009

DELIVERED          :   EDITED REASONS DELIVERED ORALLY ON 29 JANUARY 2009

FILE NO/S:   DR 340 of 2008

BETWEEN:   MEHTCOM 91 PTY LTD

Applicant

AND

CITY OF GOSNELLS
Respondent

Catchwords:

Local government - Subdivisional roads - Requirements of local government under s 170(3) of the Planning and Development Act 2005 (WA) - Whether conditions are requirements of local government under s 170(3) or requirements imposed in order to clear conditions of subdivision approval - Whether conditions of subdivision approval require construction by subdivider of road designated as 'proposed road' on subdivision plan - Appropriate, safe and convenient frontage to constructed road - Whether condition of subdivision approval requires construction of footpaths in subdivisional roads

Legislation:

City of Gosnells Town Planning Scheme No 17
Planning and Development Act 2005 (WA), s 168, s 170(1), s 170(3), s 170(5)

Result:

Application allowed in part

Category:    B

Representation:

Counsel:

Applicant:     Mr I McKellar (as Agent)

Respondent:     Mr CA Slarke

Solicitors:

Applicant:     N/A

Respondent:     McLeods

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mehtcom 91 Pty Ltd applied for review of 24 out of 25 requirements of the City of Gosnells which the City sought to impose when Mehtcom 91 Pty Ltd submitted engineering plans for the purposes of an approved subdivision.

2. At the hearing, the City conceded that 16 of its requirements were not authorised by s 170(3) of the Planning and Development Act 2005 (WA). The Tribunal disposed of this aspect of the review by making an order to this effect. During the hearing, the parties also agreed that a further requirement should be affirmed, as it had been complied with.

3. The hearing therefore concerned seven conditions, six of which required Mehtcom 91 Pty Ltd to design and pay the cost of construction of a roadway in a corner of the site designated as 'proposed road' in the approved subdivision plan, and one of which required construction of footpaths along another road shown as 'proposed road' on the approved subdivision plan.

4. Following the hearing, the Tribunal gave an oral decision in which it required Mehtcom 91 Pty Ltd to construct the road and the footpaths.

5. The Tribunal determined that it is implicit in a condition of subdivision approval requiring all lots to have frontage to a constructed road, connected to the local road system, that the subdivider must construct all subdivisional roads, including the road in the area in question, to an adequate standard.  Furthermore, construction of the road in question was required in order for an approved lot to have appropriate, safe and convenient vehicular access.  While part of the road is a 'Scheme road', the City could make a financial adjustment at an appropriate time.

6. The Tribunal also determined that the condition of subdivision approval requiring all lots to have frontage to a constructed road contemplates, in urban locations, the construction of footpaths so as to provide appropriate, safe and convenient pedestrian access between lots in the subdivision and between those lots and the public road system.

7. The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

1. These proceedings involve an application brought by Mehtcom 91 Pty Ltd (applicant), pursuant to s 170(5) of the Planning and Development Act 2005 (WA) (PD Act), for review of requirements of the City of Gosnells (City or Council) in the form of conditions imposed, or purportedly imposed, under s 170(3) of the PD Act.

Relevant legislation

1. To understand subsection (3) and subsection (5) of s 170 of the PD Act, it is necessary to commence with section 170(1) of the PD Act, which states as as follows:

   (1)Before a person who is subdividing land commences to construct and drain roads or construct artificial waterways shown in the diagram or plan of survey, that person is to give to the local government ‑

   (a)drawings showing longitudinal and cross sections of the proposed road or artificial waterway;

   (b)specifications of the proposed road or artificial waterway; and

   (c)such other information including information relating to levels, drainage, nature of soil, and physical features as the local government requires.

2. Section 170(3) of the PD Act states as follows:

   (3)The local government may by written notice require the person subdividing the land ‑

   (a)to amend the drawings or specifications or both; and

   (b)to comply with such further conditions as the local government thinks fit to impose in respect of the proposed road or waterway,

   for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission.

3. Section 170(5) of the PD Act provides a right of review by the State Administrative Tribunal to a person who is 'aggrieved by a requirement of the local government made under subsection (3) …'

Background

1. On 10 September 2007, the Western Australian Planning Commission (Commission) granted conditional subdivision approval for the subdivision of Lot 1386 Bronzewing Street, Huntingdale (site).  Whereas the applicant proposed the subdivision of the whole site into residential allotments and subdivisional roads, the Commission only approved the residential subdivision of about half the site and required the remainder of the site to be retained as one lot.

2. The conditions of subdivision approval included the following:

   (8) The lots not fronting an existing road being provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system and such road(s) being constructed and drained at the applicant/owner's cost.  As an alternative the [Commission] is prepared to accept the applicant/owner paying to the local government the cost of such roadworks as estimated by the local government subject to the local government providing formal assurance to the [Commission] confirming that the works will be completed within a reasonable period as agreed by the [Commission]. (Local Government)

   (9) Bronzewing Street/Elkington Pass being widened by 298 square metres in accordance with the plan dated 23 January (attached) by the applicant/owner transferring the land required to the Crown free of cost for the purpose of widening Bronzewing Street/Elkington Pass.

3. On 4 July 2008, Civil Technology, on behalf of the applicant, tendered for the City's approval plans of the civil works for the approved subdivision.

4. On 27 August 2008, the City wrote to Civil Technology with reference to the approved subdivision and advised that the submitted engineering drawings were approved subject to conditions, amendments and payments detailed in the letter.  The letter then set out 25 conditions.

Application for review

1. In these proceedings, the applicant seeks review of 24 of the 25 specified conditions.

2. However, the Council concedes that 16 of the 24 disputed conditions are not authorised by s 170(3) of the PD Act and are therefore not requirements of the local government made under that section. Rather, the Council contends that these conditions are imposed by it as part of its clearance function under conditions 7, 8, 11, 12 and 13 of the subdivision approval.

3. It is unnecessary and beyond the scope of these proceedings to explore whether, in fact, the 16 conditions are properly imposed for the purposes of clearance of the subdivision conditions. It is adequate for the purposes of these proceedings to order, in effect by consent, that conditions 1, 2, 3, 4, 5, 9, 10, 13, 14, 15, 16, 17, 19, 20, 21 and 25 specified in the letter from the City to Civil Technology dated 27 August 2008 are not requirements of the respondent made under s 170(3) of the PD Act.

4. The remaining conditions in dispute were further narrowed during the course of the hearing by agreement between the parties that condition 8 can be affirmed, as it has been satisfactorily complied with by the applicant.

5. The dispute between the parties has therefore narrowed considerably during the course of the hearing from 24 out of 25 conditions to seven out of 25 conditions, namely conditions 6, 7, 11, 12, 18, 22 and 23.

6. The disputed conditions can be conveniently addressed in two categories.

Road conditions

1. The first category encompasses conditions 6, 7, 11, 12, 18 and 23, which require the applicant to facilitate and pay for the construction of roadway in a 298 square metre section located in the eastern corner of the site, where it abuts, and to some extent includes, a constructed roundabout at the intersection of Bronzewing Street and Bellbird Road, which section is shown on the approved subdivision plan and marked on that plan as 'proposed road'.

2. The subdivision plan shows that the 298 square metre section connects the roundabout with a 'future road' on the adjoining property to the south‑east, which is Lot 1385.  The future road on the adjoining property is to be known as Elkington Pass.  The scheme map under the City of Gosnells Town Planning Scheme No 17 (TPS 17 or Scheme) shows that Elkington Pass is planned by the Scheme to also traverse the south‑western portion of the site and then to connect to a continuation of the roadway adjacent to the boundaries of the site.

3. It became clear during the course of the hearing that the disputed conditions concerning the construction of roadway in the 298 square metre portion of land are premised on the assumption that the applicant will elect to pay to the City the cost of construction of that section of road, as envisaged as an alternative possibility in condition 8 of the subdivision approval, rather than to construct the road itself.

4. Clearly, condition 8 of the subdivision approval provides an election to the applicant which cannot be forced by the City.  While it may well be the case, as the City contended, that it is most sensible to not construct the 298 square metre part of Elkington Pass at this stage, but rather to construct it, together with the remainder of Elkington Pass, when the adjoining property is subdivided, the primary obligation of the applicant is to construct subdivisional roads so as to provide all lots with frontage to a constructed road, connected by a constructed road to the local road system.

5. In consequence, the Tribunal accepts the applicant's contention that conditions 6, 7, 11, 12, 18 and 23 cannot be imposed in their current form under s 170(3) of the PD Act. Rather, if a condition requiring construction of the 298 square metre section is within power under s 170(3) of the PD Act, and if such a condition is appropriate and reasonable in the exercise of discretion under that section, then these conditions should be deleted and replaced with a condition requiring the applicant to provide for the Council's approval detailed road plans for the construction and drainage of the 298 square metre section and requiring the applicant to construct that section of road in accordance with the approved plans.

6. Further, if such a condition is authorised by s 170(3) and is appropriate and reasonable in the exercise of discretion, then a condition should be imposed providing for the applicant's election of the alternative course envisaged by condition 8 of the subdivision approval and, if the applicant elects to adopt this course, requiring the construction of a temporary access to Lot 303 of the subdivision to the satisfaction of the Council. Lot 303 of the subdivision abuts the 298 square metre section.

7. Mr Ian McKellar appeared on behalf of the applicant and made essentially three submissions in relation to the conditions concerning construction of roadway in the 298 square metre section.

8. First, Mr McKellar submitted that the Commission's approval of the plan of subdivision, and in particular conditions 8 and 9, do not contemplate or require the construction by the applicant of a road in the 298 square metre section.  In particular, Mr McKellar noted that condition 8 of the subdivision approval does not expressly require the applicant to build a road, and that condition 9 merely requires the transfer of the land to the Crown free of cost for the purpose of widening Bronzewing Street and Elkington Pass.

9. However, it is clearly implicit in condition 8 of the subdivision approval that all subdivisional roads shown as approved on the subdivision plan are to be constructed by the subdivider to an adequate standard.  In this case, the subdivision plan identifies the 298 square metre section as a subdivisional road by the description 'proposed road'.

10. Furthermore, although Lot 303 is located a short distance from the paved portion of the roundabout, and although the paved portion of the roundabout traverses, to a limited extent, part of the 298 square metre section, proposed Lot 303 does not at present have a frontage to a constructed road connected by a constructed road to the local road system.  The construction of the 298 square metre portion as a road would provide Lot 303 with frontage to a constructed road that is connected to the local road system.

11. Further, the section of proposed Lot 303 which is most proximate to the roundabout, even if it were to extend to abut the roundabout, would only provide what Mr Craig Slarke, counsel for the City, described as a 'tangential connection' to a constructed road.  This would clearly not be frontage of the nature contemplated by condition 8 of the subdivision approval.

12. Moreover, it would be inappropriate for a lot to have its frontage for vehicular access to a curved portion of a roundabout.

13. In contrast, the construction of the 298 square metre section would enable proposed Lot 303 to have frontage to a constructed road that enables access to the roundabout via that constructed road.

14. Condition 9 of the subdivision approval, as Mr Slarke observed, appears to have been imposed for more abundant caution, given that its intent would be achieved in any case by s 168 of the PD Act. The inclusion of condition 9 in the approval does not preclude condition 8 from requiring the applicant to construct the 298 square metre section shown on the approved subdivision plan as 'proposed road' as it is a subdivisional road that is required to connect Lot 303 to the local road system.

15. Second, Mr McKellar submitted that condition 8 of the subdivision approval does not in any case require the applicant to construct the road, because there is already a part of the roundabout that traverses the 298 square metre section.  It is correct that, for some unknown historical reason, the roundabout was constructed in part on the applicant's land.  However, the subdivision plan does not show that proposed Lot 303 actually abuts the constructed portion of the roundabout.

16. Furthermore, for reasons already discussed, a tangential connection, if it were to exist, between proposed Lot 303 and a curved part of the roundabout would not satisfy the intention of condition 8 of the subdivision approval to ensure appropriate, safe, and convenient access to the public road system.

17. Third, Mr McKellar submitted that the conditions as imposed or as substituted in relation to the construction of the 298 square metre section are not authorised by s 170(3) of the PD Act, or alternatively, are inappropriate in the exercise of discretion under that section, because the relevant section of Elkington Pass comprised in the 298 square metre portion of the site is shown as a 'Scheme road' under TPS 17.

18. Mr McKellar provided the Tribunal with his understanding of the extent to which the 298 square metre section is a 'Scheme road' under the Scheme.

19. It appears that a part of the 298 square metre section is a 'Scheme road' under the Scheme, although not the full area as envisaged by Mr McKellar.  The Scheme report provides some textual indication of the extent to which the area in question is a 'Scheme road' in its statement that 'Scheme road' costs include 'half [the] cost of constructing roads abutting public open space and with residential lots only along one side'.  It appears that, to the east of the 298 square metre portion of the site and to the south‑east of the roundabout, there is an area of public open space.  It appears that a small portion of the 298 square metre area in its easternmost part is in the area of a 'Scheme road' designated under the Scheme.

20. However, as Mr Slarke observed, there is a mechanism available under the Scheme for the adjustment of costs and, in particular, for the recoupment of costs by a developer or subdivider who has carried out construction of a 'Scheme road' or part of a 'Scheme road'.

21. The fact that a part of the 298 square metre section is a 'Scheme road' does not have the effect that the Council does not have the power under s 170(3) of the PD Act to require the applicant to comply with a condition of the subdivisional approval that it construct the 298 square metre section.

22. Furthermore, given that only a small part of the 298 square metre section comprises a 'Scheme road' and that there is a mechanism available for the recoupment of some costs consistently with the Scheme in relation to that portion of the construction, it is appropriate in the exercise of discretion, notwithstanding the 'Scheme road', to require the applicant to carry out construction.

23. In my opinion, a condition along the lines that I have foreshadowed requiring the applicant to provide to the Council for its approval detailed road plans for the 298 square metre area and to construct the road in accordance with the approved road plans is consistent with the approval of the Commission and therefore authorised by s 170(3) of the PD Act. This is because it is implicit in condition 8 of the subdivision approval that the applicant must construct subdivisional roads, identified on the approved subdivision plan, to an adequate standard, and Lot 303 requires the construction of this roadway in order to have appropriate, safe and convenient frontage to a constructed road, connected by a constructed road to the local road system.

24. The subdivision plan identifies the 298 square metre area in question in these proceedings in the same way as it identifies the continuation of Coolberry Road within the subdivision.  Both are shown on the approved plan of subdivision in the manner of subdivisional roads.  Both provide frontage to a proposed and approved lot, so as to enable those lots to have access by constructed road to the public road system in the district.

25. The fact that the 298 square metre section of the site is likely to ultimately form part of a wider road connection via Elkington Pass does not alter its role in providing constructed road frontage to Lot 303 within the proposed subdivision.  Moreover, any apparent injustice to the applicant in having to construct a part of a 'Scheme road' is appropriately alleviated by the mechanism for compensation; that is, recoupment in accordance with the Scheme.

Footpath condition

1. The remaining condition in dispute is condition 22, which requires the installation of a 1.5 metre footpath in the new section of Coolberry Road.  As noted earlier, Coolberry Road is proposed to be extended into the site, to provide vehicular and pedestrian access to the road network in the district.  At present, Coolberry Road is a cul‑de‑sac.

2. Mr McKellar submitted that, consistently with the City's subdivisional development guidelines, the City does not ordinarily require cul‑de‑sacs less than 150 metres in length to contain footpaths.  Mr McKellar also observed that the adjoining subdivision to the north‑west was not required to provide a footpath along Coolberry Road.

1. However, Coolberry Road is ultimately proposed to intersect with Elkington Pass at the south‑eastern boundary of the site.  As noted earlier, this contemplation is expressed in the Scheme map.  It is likely that eventually this connection will take place.  The relevant section of the site forming the extension of Coolberry Road will not, therefore, remain a cul‑de‑sac, but rather, will become a through road connecting Coolberry Road and Elkington Pass.

2. Condition 8 of the subdivision approval, in my opinion, contemplates in an appropriate location, and in particular in an urban location, the construction of footpaths, so as to provide appropriate, safe and convenient pedestrian access from approved lots via the road network within a subdivision to the wider road network.

3. This is a case of an urban subdivision in which condition 8 contemplates the construction of footpaths. While there remains a discretion under s 170(3) of the PD Act as to whether or not to require by condition the amendment of plans or the construction of footpaths on subdivisional roads, it is appropriate, in my opinion, in the circumstances of this case, to exercise that discretion by requiring, as the City has done, the construction of 1.5 metre wide foopaths.

4. These footpaths will ultimately provide access to Elkington Pass.  However, even in the interim, they at the very least provide safe and convenient access between lots in the proposed subdivision.  Furthermore, although there are no footpaths in the immediate section of Coolberry Road adjoining the site, it is likely that ultimately the Council will construct such footpaths to connect the footpaths within the site to footpaths approximately 150 metres away from the site, particularly once the Elkington Pass road is built.

5. The condition requiring the construction of the footpath, in my opinion, is in respect of the proposed Coolberry Road extension within the site and for the purpose of ensuring that the construction of that road is consistent with the approval of the Commission, and particularly the contemplation in condition 8 of footpaths being constructed in an urban location. The condition is therefore authorised by s 170(3) of the PD Act and, for reasons that I have articulated, is an appropriate and reasonable condition to impose in the exercise of discretion under that section.

Conclusion

1. It follows that the application for review should be allowed in part.

2. It is appropriate to order, in effect by consent, that 16 of the conditions referred to in the letter from the City to Civil Technology dated 27 August 2008 are not requirements of the respondent made under s 170(3) of the PD Act.

3. In making this order, the Tribunal expresses no view whatsoever as to whether those conditions are appropriately responsive to the City's role as the clearance authority in relation to certain conditions of submission approval.  The issue of whether the conditions are responsive to that role is beyond the scope of these proceedings and ultimately would involve the Commission.

4. Furthermore, the applicant is correct in its contention that several of the conditions imposed by the Council under s 170(3) of the PD Act proceed on a false premise; namely, that the City can force the applicant to elect to make a financial contribution towards the construction of the road in the 298 square metre section of the site referred to earlier, rather than to construct the road itself.

5. However, for reasons that I have given, the intent of the disputed conditions in relation to the road construction can, and in my opinion should, be appropriately imposed by way of an alternative condition requiring the applicant to construct the road in accordance with plans approved by the Council and alternatively, enabling the applicant to pay to the Council the cost of the roadworks estimated by the Council.

6. The remaining two conditions in dispute should be affirmed.  One, namely condition 24, was not disputed by the applicant.  The second, namely condition 22, has been found by the Tribunal to be within power, appropriate and reasonable.

Orders

1. For these reasons, the Tribunal makes the following orders:

   1.The application for review is allowed in part.

   2.Conditions 1, 2, 3, 4, 5, 9, 10, 13, 14, 15, 16, 17, 19, 20, 21 and 25 specified in the letter from the respondent to Civil Technology dated 27 August 2008 are not requirements of the respondent made under s 170(3) of the Planning and Development Act 2005 (WA).

   3.Conditions 6, 7, 11, 12, 18 and 23 specified in the letter from the respondent to Civil Technology dated 27 August 2008 are set aside for the purposes of s 170(3) of the Planning and Development Act 2005 (WA) and the following conditions are imposed under that section:

   (6) The applicant must provide for the Council's approval detailed road plans for the construction and drainage of the 298 square metre section shown as 'proposed road' in the eastern corner of the site on the approved subdivision plan, including details of necessary connection to the roundabout, splitter islands, signage, line marking and lighting, and must construct and drain the road and install necessary lighting in accordance with the approved plans.  Insofar as the road to be constructed is a Scheme road for the purposes of the City of Gosnells Town Planning Scheme No 17, the Council is required to make a financial adjustment at an appropriate time.

   (7) As an alternative to the preceding condition, if the applicant elects to pay to the Council the cost of the roadworks referred to as estimated by the Council, then the applicant must construct a temporary access to Lot 303, which is Lot 3 in the approved subdivision, to the satisfaction of the Council.

   4.Condition 8 specified in the letter from the respondent to Civil Technology dated 27 August 2008 is affirmed for the purposes of s 170(3) of the Planning and Development Act 2005 (WA) and it is noted that this condition has been satisfactorily complied with.

   5.Condition 22 and condition 24 specified in the letter from the respondent to Civil Technology dated 27 August 2008 are affirmed for the purposes of s 170(3) of the Planning and Development Act 2005 (WA).

I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER