Melvista Park Pty Ltd and Western Australian Planning Commission - [2009] WASAT 52

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MELVISTA PARK PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 52

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 9 MARCH 2009

DELIVERED : EDITED REASONS DELIVERED ORALLY ON 9 MARCH 2009

FILE NO/S: DR 374 of 2008

BETWEEN: MELVISTA PARK PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning Subdivision Rural residential lots Requirement for reticulated water Changed circumstances Commission resolution to prioritise provision of reticulated water - Transfer of water entitlements to Water Corporation - Reticulated water likely within lifetime of subdivision approval - Precedent - Practice and procedure - Expert evidence - Whether a party or principal of a party may give expert evidence - Experts' obligations to Tribunal - Impartiality

Legislation:

Planning and Development Act 2005 (WA), s 251(1)
Shire of Chittering Town Planning Scheme No 6
State Administrative Tribunal 2004 (WA), s 27(2)

Result:

Condition requiring reticulated water imposed

Category: B

Representation:

Counsel:

Applicant: Mr R Pawluk (director)
Respondent: Mr J Algeri (as Agent)

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Melvista Park Pty Ltd applied for a two-lot subdivision of Rural Residential land in Bindoon. It proposed that the lots be served by non‑reticulated water supply, in particular rainwater. However, during the course of the proceedings, the Western Australian Planning Commission resolved to prioritise the provision of reticulated water to the area of the site, and the Water Corporation acquired water entitlements adequate for 700 lots.
At a directions hearing, the Tribunal determined that a director and principal of Melvista Park Pty Ltd, who was a town planner by profession, would not be allowed to give expert evidence in the proceedings. The Tribunal said that there was a clear conflict between giving impartial expert evidence and having an interest in the outcome of the review.
Following the hearing, the Tribunal gave an oral decision in which it granted subdivision approval subject to a condition that the lots be connected to reticulated water supply. The Tribunal determined that approval of the application without the condition would be contrary to orderly and proper planning, as the planning framework required, or at least contemplated, reticulated water supply where possible, and that is likely to be possible within the lifetime of the subdivision approval. Approval of the application without the condition would also set an adverse planning precedent.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

On 20 March 2008, Melvista Park Pty Ltd (Melvista Park) lodged a subdivision application with the Western Australian Planning Commission (Commission) for a two-lot subdivision of land located at Lot 332 Teatree Road, Bindoon (site).

Site and location

The site has an area of 2.0013 hectares and is zoned 'Rural Residential' under the Shire of Chittering Town Planning Scheme No 6. The site is currently vacant rural land and the proposed subdivision is for the purpose of creating two lots, each for a single dwelling. The site is not served currently by reticulated water.

Subdivision application

The subdivision application was considered by the Commission outside the 90‑day period for the determination of subdivision applications. On 12 September 2008, the Commission refused to approve the proposed subdivision for four reasons, including, 'Reticulated water supply is not available to service the proposed lots'.

Application for review

Melvista Park commenced these proceedings in accordance with s 251(1) of the Planning and Development Act 2005 (WA) for review of the Commission's decision.
The parties engaged in a mediation process, facilitated by a member of the Tribunal. As a result of that process and events which took place in December 2008, which I will refer to shortly, on 10 February 2009, the Commission resolved to advise the Tribunal that it had reconsidered the application and now considered it appropriate to approve the application, subject to six conditions. The conditions to which the Commission referred included the following:
Certification from a licensed water service provider that connection to a reticulated water supply service has been provided to the lots proposed by the application. No subdivisional works are to be commenced until there is agreement with a nominated licensed serviced provider and the [Commission] has been notified of such a service provider and advised in writing that it considers those arrangements to be satisfactory. (Service provider to be nominated) (Condition 1)
It appears that the mediation process then continued before the Tribunal as late as last Friday, 6 March 2009. When the file arrived in my room on the afternoon of Friday, 6 March 2009, I reviewed it and convened an urgent directions hearing to inquire of the parties whether they were each in a position to proceed to hearing before me today.

Can a party or a principal of a party give expert evidence?

In particular, I raised with Mr Richard Pawluk, who is a director and principal of Melvista Park, and also a town planner by profession, the issue as to whether he would be able to give expert town planning evidence at the hearing, having regard to his position as a director and principal of the applicant company. I expressed the view that Mr Pawluk could not satisfy the expert's obligations to the Tribunal articulated in the Tribunal's guidance pamphlet A guide for experts giving evidence in the State Administrative Tribunal and that he should consider that, in determining whether the matter was ready for hearing today.
In particular, I expressed the view, which I maintain, that an expert witness who has a direct financial interest in the outcome of a planning application cannot observe the expert's obligations to the Tribunal, and in particular, the overriding duty to assist the Tribunal impartially on matters relevant to the expert's area of expertise and paramount duty to the Tribunal and not to the engaging party.
I made those observations, and I continue to hold that view, without wishing to express any disrespect to Mr Pawluk, who is otherwise a qualified and experienced planner. However, there is a clear conflict between giving impartial expert evidence to the Tribunal and having an interest in the outcome of the review. Furthermore, an expert who is a party or the principal of a party self‑evidently owes his paramount duty and interest to the party and not to the Tribunal. It would be contrary to human nature to think otherwise.
When the matter came on for hearing this morning, I indicated that I would allow Mr Pawluk's witness statement into evidence, but consistently with my decision on Friday, would not allow those parts which are in the nature of expert opinion as evidence, but rather as arguments which he can express on behalf of the applicant.

Commission's lack of contrary evidence on rainfall

I also raised with the Commission whether it was in a position to proceed to final hearing today, having regard to the challenge by Mr Pawluk, on behalf of Melvista Park, to the Commission's position that condition 1 should be imposed.
In particular, I noted that the evidence as indicated by Mr Pawluk from his consultant appeared to be that it was feasible to provide water to each of the proposed lots by means of rainfall and rainwater tanks. The Commission indicated that it was ready to proceed to hearing, although it did not have evidence to counter the advice that Mr Pawluk and Melvista Park had received.

Issue for determination

When the matter was argued today, the single issue that emerged for determination was whether condition 1 as proposed by the Commission is reasonable and appropriate.
Mr Pawluk, on behalf of Melvista Park, argued that the condition is unreasonable and inappropriate, and he sought the approval of the two‑lot subdivision without a requirement for reticulated water.
In contrast, the Commission contended, through its advocate Mr Algeiri, that condition 1 is reasonable and appropriate, and indeed, that in the absence of condition 1, the application for subdivision approval should be refused.

Consideration of applicant's arguments

Mr Pawluk presented several arguments in support of his position that condition 1 is inappropriate and unreasonable. In particular, in his written evidence and submission, and in the oral argument today, he advanced four fundamental propositions.
The first is that the Shire of Chittering (Shire or Council), which is the local authority, has itself determined, as recently as November 2008, by its adoption of a development plan for the area including the site, that lots of 1 hectare or greater can be appropriately served by non‑reticulated water supply. Specifically, the Council required one 120,000 litre rainwater tank for lots of 1 hectare or greater, whereas it required a reticulated water supply for lots less than 1 hectare in the development plan that it approved.
The proposed lots in this case exceed 1 hectare, but only by the thinnest of margins. In fact, the lots exceed 1 hectare by 6 square metres and 7 square metres respectively. I do not consider that such a marginal exceedance of 1 hectare is of any practical consequence.
The second argument put forward by Mr Pawluk was that the hydraulic advice, to which I have referred earlier, showed that, on the basis of a mean annual rainfall of 696 millimetres in the district, a roof area of 240 square metres would be adequate for a building or buildings on each proposed lot, together with one 120,000 litre tank to provide water for each proposed lot. The Department for Planning and Infrastructure's own assessment essentially accords with this advice.
However, I consider that the planning framework requires, or at least contemplates, that in the circumstances as they exist today, a condition along the lines of condition 1 should be imposed. There are three key aspects of the planning framework that, in my view, have this effect.
The first is State Planning Policy 2.5 ‑ Agricultural and Rural Land Use Planning (SPP 2.5), and in particular, cl 5.3.2 of SPP 2.5. That clause specifically applies to land zoned 'Rural Residential' and states that the following town planning scheme provisions should apply, in addition to those elsewhere in the Policy:
(a)the lot size should range from 1 ha to 4 ha, depending on local conditions; and
(b) mandatory provision of a reticulated potable water supply to an appropriate standard as determined by the licence holder.
Second, cl 3.2 of the Commission's Policy DC 3.4 ‑ Subdivision of Rural Land states as follows in relation to water for rural residential development:
When approving lots for rural residential development (1‑4 ha) the [Commission] will generally require connection to a reticulated water supply where it is practical and reasonable to do so. Where it is not practical or reasonable for lots to connect to a reticulated water supply the [Commission] may consider an alternative water supply. In determining whether provision of a reticulated water supply is reasonable, the [Commission] may consider the cost differential between a reticulated [water supply] and alternative water supply, and the reliability of an alternative water supply.
It appears that both parties have discussed this matter with appropriate officers of the Water Corporation. An officer, Mr John Simpson, has advised that, once the Shire approves a new town water supply boundary extension, the Water Corporation will be in a position to and will apply for a licence to service the area of the site with water.
It appears that the Shire was scheduled to consider the new town water supply boundary extension at its meeting on 18 February 2009, but it did not ratify that extension at that time, as the councillors wished to have more time to consider it. Nevertheless, the extension is presently before the Council.
Mr Simpson advised that, in order for the water supply point to reach the site, there would need to be an extension of approximately 1.75 kilometres, and that the cost of that extension would be $150 per metre, that is, $262,500.
Mr Jason Bouwhuis, a town planner employed by the Department for Planning and Infrastructure and the senior planning officer within the State Administrative Tribunal review system of the Department, agreed with Mr Pawluk that it would be unreasonable to require Melvista Park to expend this cost to secure reticulated water connection for the site. However, Mr Bouwhuis considered that the provision of reticulated water to the site is now a 'practical and reasonable prospect' as a result of two factors that have occurred in recent months.
The first is that the Commission has resolved to prioritise the Bindoon town site consolidation area, which includes the site, as the first area within the Shire for the provision of reticulated water supply and has so advised the Shire, Department of Water and Water Corporation.
The Commission advised the Shire of its resolution on 9 December 2008 and requested the Shire to survey landowners of the rural residential lots within the Bindoon town site consolidation area to determine their development intentions and subsequently to initiate an amendment to rezone selected properties from Rural Residential to Residential R2.
Second, in January 2009, the Department of Water approved the transfer of water entitlement from Lennards Brook Farming Pty Ltd to the Water Corporation of 362,900 kilolitres. Mr Bouwhuis gave evidence that this water availability is sufficient for up to 700 new lots in the locality.
Mr Pawluk challenged Mr Bouwhuis in relation to the likely time frame to provide reticulated water to the site. In particular, as noted earlier, the Shire needs to first adopt a water supply boundary extension. However, as also noted earlier, that issue is now before the Council, although deferred on 18 February 2009.
The Shire also needs to progress the Commission's direction to initiate a rezoning process. Mr Pawluk raised practical problems and potential pitfalls with this process. In particular, he raised a concern about the capacity of the Shire to progress this type of process. However, it is significant, in my opinion, that relevant State authorities have determined, or at least have not expressed concern about, the prioritisation of the subject area.
Furthermore, while potentially the process of identifying the development intentions of landowners is a large undertaking, I note that what the Commission has required the Council to do is to initiate an amendment to rezone selected properties from Rural Residential to Residential R2. The area of the site is the subject of some planning that has already occurred. In particular, as I noted earlier, the Council itself has approved a development plan for the area which includes the site.
In those circumstances, I am satisfied that the time frame for water connection to the site contemplated by Mr Bouwhuis of 18 months to 24 months is reasonable, having regard to the current state of authorities' support and the transfer of water entitlement to the Water Corporation.
It is likely, therefore, that within the three‑year lifetime of the subdivision approval granted for the proposed subdivision, and probably within two years, there will be water supply provided to the immediate locality of the site, without Melvista Park having to itself pay the sum referred to earlier, at least in relation to the subject site.
The third aspect of the town planning framework that appears to be of significance is the Council's Local Planning Strategy. Clause 8.5.1 of the local planning strategy describes the Rural Living Precinct, which includes the site, as an area 'connected to allow for the provision and continuity of services ‑ particularly for roads and water'.
In terms of the aims for this Precinct, the Local Planning Strategy includes 'to require all lots to be provided with scheme water wherever possible'.
As I found earlier, while it is impossible to provide reticulated water today or in the short term without imposing unreasonable financial burden on Melvista Park, it is certainly possible, on the evidence, within the lifetime of the subdivision approval that is sought to be granted, and probably within two years.
Mr Bouwhuis gave evidence, having regard to these aspects of the planning framework, that approval of the proposed subdivision without condition 1 would be contrary to orderly and proper planning. In particular, he said:
Creating two lots without a reticulated water supply for approximately 18 months in my opinion is inconsistent with clause 3.2 of DC 3.4, as it is a practical and reasonable expectation that the subject land will have a reticulated water supply. In my opinion, it is practical and reasonable for the Applicant to be required to connect to a reticulated water supply[,] given this will be available within a period of approximately 18 months.
In evidence, Mr Bouwhuis conceded that 18 months may not be feasible, and that, more correctly, it is a period of within 24 months. He was questioned at some length about the various aspects that would be required, both in terms of providing the water infrastructure and the supporting rezoning of the locality. However, Mr Bouwhuis maintained and appropriately justified his opinion.
In the circumstances, I find that the estimate of 18 months to 24 months is reasonable to provide the water infrastructure to the site, without Melvista Park having to fund the whole of that route in respect of this site.
The third argument presented by Mr Pawluk was to do with the reasonableness of paying $262,500 for the site to have early connection to the water infrastructure. As I found earlier, it would be unreasonable to require, expressly or necessarily by a condition, for Melvista Park to have to fund that now in relation to the two‑lot subdivision of this site. However, I have also found that it is likely, within the lifetime of the subdivision approval and probably within two years, that reticulated water will be available for the site, funded by developers generally, along the route.
The final argument put forward by Mr Pawluk, and an argument that underlies Melvista Park's case as presented today, is that when the application was made and determined by the Commission, the factual circumstances were different. In particular, there had not been a resolution of the Commission to prioritise the provision of reticulated water to this area, and there had not been the transfer of water entitlements to the Water Corporation.
As Mr Algeiri said in his closing submissions, one can certainly have some sympathy for Melvista Park in the circumstances of this case. It lodged a subdivision application with the reasonable expectation that it would be determined within 90 days. Had it been determined within 90 days, there was no prospect of the provision of reticulated water to the site, other than in very general terms through a process contemplated in the Local Planning Strategy.
When the mediation process commenced in the Tribunal, the factual circumstances remained as they initially were. It was in or about December 2008, while the mediation process was continuing, that certain important developments took place.
The Tribunal sits here in March 2009 and is required by the State Administrative Tribunal Act 2004 (WA) (SAT Act) to undertake this review for the purpose of producing the correct and preferable decision 'at the time of the decision upon the review': s 27(2) of the SAT Act. At the time of the decision upon the review, the facts have changed from when the subdivision application was lodged and determined by the Commission.

Conclusion

As the Tribunal sits to determine the matter today, there is little doubt that it would be contrary to orderly and proper planning, having regard to the planning framework that I have referred to, to grant an approval for a two‑lot subdivision dependent on rainwater and, potentially, bore water. This is because the planning framework requires, or at least clearly contemplates, that where possible, rural residential subdivision should be served by reticulated water. I am satisfied that it is now likely that the site will be served by reticulated water within the lifetime of the approval. Condition 1 should therefore be imposed in this case.
This conclusion is strengthened by the fact that, in this case, approval of the application without the condition would set an adverse planning precedent. For reasons discussed earlier, approval of the application without condition 1 would be objectionable, because it is contrary to the expecation of the planning framework. There is more than a mere chance or possibility of later undistinguishable applications, because there are a large number of lots of 2 hectares to 5 hectares which are nearby and zoned the same as the site: see Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117.

Orders

For these reasons, I make the following orders:
1.The application for review is allowed.
2.The decision of the respondent to refuse subdivision approval of Lot 332 on Deposited Plan 46583 is set aside.
3.Subdivision approval is granted, subject to the following six conditions:
(i)Certification from a licensed water service provider that connection to a reticulated water supply service has been provided to the lots proposed by this application. No subdivisional works are to be commenced until there is agreement with a nominated licensed service provider and the Western Australian Planning Commission has been notified of such a service provider and advises in writing that it considers those arrangements to be satisfactory. (Service provider to be nominated)
(ii)Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to the lot(s) shown on the approved plan of subdivision. If an existing aerial electricity cable servicing the land the subject of this approval crosses over a proposed lot boundary as denoted on the approved plan of subdivision satisfactory arrangements will need to be made for the removal and relocation of that cable. (Western Power)
(iii)All buildings and effluent disposal systems having the necessary clearance from the new boundaries as required under the relevant legislation. (Local Government)
(iv)All septic sewer systems including all tanks and pipes and associated drainage systems (soakwells and leach drains) and any stormwater disposal systems are to be decommissioned, removed, filled with clean sand and compacted. (Local Government)
(v)The applicant/owner of the land shall make arrangements to ensure that prospective purchasers of the proposed lots are advised in writing that provision of a reticulated sewerage service will not be available to the lot and that all future dwellings on the lot will need to be connected to on-site effluent disposal system(s). (Local Government)
(vi)The subdivider making suitable arrangements with the Local Government to ensure that prospective purchasers of the lots created will be advised of those provisions of the Local Government's town planning scheme that relate to the use and management of the land. (Local Government)

I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER