Melvista Park Pty Ltd and Western Australian Planning Commission
[2009] WASAT 31
•25 FEBRUARY 2009
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 31
MEMBER: MR J ADDERLEY (SENIOR SESSIONAL MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 FEBRUARY 2009
FILE NO/S: DR 347 of 2008
BETWEEN: MELVISTA PARK PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Subdivision - Shire of Augusta-Margaret River - Whether certain conditions of subdivision approval are reasonable or appropriately worded - Whether history of recent road construction and role of local government invalidates condition for road upgrading - Western Australian Planning Commission Policies - Likelihood that subdivision would generate additional traffic - Need for safe access in fire prone locality
Legislation:
Planning and Development Act 2005 (WA)
Shire of Augusta-Margaret River Town Planning Scheme No 16
Result:
Application for review of three subdivision approval conditions upheld in part.
Decision varied in relation to one condition.
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr M Cuthbert
Solicitors:
Applicant: Self-represented
Respondent: Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
This is a review of the Western Australian Planning Commission's decision to impose three conditions on the subdivision of a rural lot in the Shire of Augusta-Margaret River. Condition 3 required the preparation and implementation of a fire management plan for the land. Condition 8 required the construction of an access way and condition 9 required upgrading of the road connection to the land.
The parties, in their submissions to the Tribunal, agreed that condition 3 should be re-worded and that condition 8 was now deemed acceptable to both parties.
With respect to condition 9, the applicant argued that the present unsatisfactory condition of the connecting road was the responsibility of the local government. The local government had failed in its duty to ensure the completion of a road construction undertaking by the previous owner of the rural lot in 2005. The responsibility for upgrading the road should therefore be assumed by the local government and not be transferred to the subdivider.
The applicant also argued that the proposed subdivision would not contribute additional traffic on the connecting road as there would be no change to the number of building envelopes approved for the property.
The respondent argued that the history of arrangements for construction of the connecting road was not relevant.
The respondent cited Western Australian Planning Commission Policies:
•DC 1.1 Subdivision of Land - General Principles;
•DC 1.7 General Road Planning;
•DC 3.7 Fire Planning; and
•Planning for Bush Fire Protection 2001,
which policies relevantly support the respondent's intent to impose a subdivision condition requiring the provision of an adequate and safe road access to the land.
The Tribunal noted that both parties agreed that there was a steep section of the connecting road that was unsatisfactory and unsafe for two wheel drive vehicle access.
The Tribunal considered the applicant's argument that the local government mismanaged the road construction project, initiated but not completed by the previous landowner, and that it should therefore be held responsible for the inadequate condition of the connecting road.
The Tribunal was not persuaded that the history of the road project, which was voluntarily undertaken for the benefit of and sole interest of the previous landowner, demonstrated any mismanagement of substance other than a lack of communication between the parties. There was nothing in the evidence to suggest that even if communication between the parties had been maintained, the previous landowner would have committed further funds to the project in the circumstance of having disposed of the land.
The Tribunal was therefore reluctant to give weight to the applicant's argument that the inadequate condition of the connecting road was the local government's responsibility.
The Tribunal considered the argument that the subdivision of the land would not result in any additional traffic being generated on the connecting road. In this regard, the Tribunal noted that the subdivision did not alter the number of building envelopes allowed on the land. However, the likelihood of maximum development potential was more liable to be obtained in the event of effecting subdivision of the land and the resultant creation of separate negotiable titles than if the land was maintained as a single title. It follows that the pursuit of subdivision is more likely to generate additional traffic on the connecting road and calls in the need to upgrade that road.
The land in question is identified as fire prone. The respondent's policies identify that in the event of subdivision, residents and fire services should be provided with safe, two way vehicular access to the land. The Tribunal concluded that this policy requirement was sensible and reasonable and justified the imposition of condition 9.
The Tribunal concluded that the application for review of the respondent's subdivision approval condition 3 (fire management), condition 8 (access way) and condition 9 (road construction) should be allowed in part, but only to the extent that the parties have agreed in their submissions to a mutually acceptable rewording of condition 3.
Conditions 8 and 9 of the subdivision approval are otherwise retained.
Introduction
This is a review of the Western Australian Planning Commission's (Commission) decision to impose certain conditions upon its approval to subdivide Lot 1295 Blackboy Hollow Road, Margaret River (subject land) in the Shire of Augusta-Margaret River (Shire).
The conditions under review impose obligations on the subdivider in respect of implementing a fire management plan, construction of an access way, and road construction.
The application for subdivision approval was lodged on behalf of Melvista Park Pty Ltd (applicant) with the respondent on 27 December 2007.
The respondent approved the application for subdivision subject to nine conditions, including the conditions subject of this review, on 25 August 2008.
On 15 September 2008, the applicant lodged an application with the State Administrative Tribunal (Tribunal) for review of condition 3 (fire management plan), condition 8 (access way construction) and condition 9 (road construction) of the respondent's decision of approval.
Subsequent to lodgement of the application for review, submissions from the parties have identified that condition 3 in a reworded form proposed by the respondent is acceptable to the applicant and that condition 8 is now no longer in dispute. Accordingly, this review will focus upon the issues arising from the review of condition 9 only.
The subdivision and its context
The subject land is a large rural property located on undulating coastal heath (shrub land), situated about 500 metres inland from the coast.
The subject land obtains access via Blackboy Hollow Road, a road reserve of about 1.4 kilometres length connecting with Caves Road. Other than for the first 60 metres or so, no other properties are serviced by Blackboy Hollow Road.
Blackboy Hollow Road is constructed as a limestone formation access road.
The subject land is 80.9 hectares in area, rectangular in shape with its prime axis lying in an east-west orientation.
The subdivision of the subject land, conditionally approved by the respondent, would create proposed Lot 201, a battle-axe shaped lot of 38.8 hectares occupying the western portion of the land, and a balance Lot 202 of 42.1 hectares occupying the eastern sector.
An approved building envelope is identified on each proposed new lot. The approved envelopes are located towards the centre/west of the original the subject land, considerably closer to the coast than a pair of building envelopes approved by the Shire in 1998 which were located on the eastern margin of the lot.
Statutory and policy instruments
The subject land is zoned Rural under the Shire of Augusta-Margaret River Town Planning Scheme No 16.
According to the respondent, the following Commission policies are relevant to the review.
Policy DC 1.1 Subdivision of Land - General Principles provides at:
•Section 3.5.1:
New lots will be created only where each lot has, or can be, provided with direct frontage access to a constructed public road which is connected to the road system of the locality. This is to ensure the provision of public utility services as well as to provide vehicular access to the lot.
•Section 3.5.2:
Where new roads are needed, the subdivider will be required to construct and drain these roads to the specifications and satisfaction of the local government. The Commission may also require existing roads to be ether constructed or upgraded to ensure compliance with this policy.
Policy DC 1.7 General Road Planning provides at:
•Section 3.2.1 that a road upgrade or construction condition should be imposed where
.... the Commission and the road authority should be satisfied that the existing roads are either substandard or inadequate to accommodate the additional traffic generated from the subdivision and associated development.
Policy DC 3.7 Fire Planning requires at:
•Section 4.5 that:
more intensive land use and development should only take place where the performance criteria and acceptable solutions set out in Planning for Bush Fire protection can be achieved.
The Planning for Bush Fire Protection policy published by the Commission and FESA sets out performance criteria for access in the following terms:
PC 3.4.1 - Safe two way access and egress to be available to residents in bush fire prone areas.
PC 3.4.2 - Subdivision and development proposals in bush fire prone areas to incorporate fire services access so that safe access and egress is available …
PC 3.4.3 - Access to be constructed to a suitable standard having regard to:
•provision of access at all times
•physical characteristics of land
•major drainage features
•provision of turning areas for emergency and other vehicles
The Planning for Bush Fire Protection policy provides detailed 'acceptable solution' standards for the construction of public roads 'to allow for two way traffic for conventional two wheeled drive vehicles to travel safely on them'.
The respondent's decision
The Commission approved the subdivision of the subject land subject to nine conditions including the following conditions subject of this review:
Condition 3
A Fire Management Plan being prepared and implemented to the specifications of the local government and the Department of Environment and Conservation. (Local Government)
Condition 8
The battleaxe accessway(s) being constructed and drained at the applicant/owner's cost to the specifications of the local government. (Local Government)
Condition 9
Arrangements being made with the local government for the upgrading and/or construction of Blackboy Hollow Road. (Local Government)
Preliminary submissions
In respect of condition 3 (fire management plan), the respondent submitted that as a Fire Management Plan has already been agreed for the site and approved by the nominated clearing authority (Local Government), the condition should be re-worded as follows:
The approved Fire Management Plan is to be implemented to the specifications of the local government. (Local Government)
The applicant accepted the re-worded condition 3 as appropriate.
In respect of condition 8 (access way construction), the applicant confirmed that the condition was no longer disputed.
The respondent's argument
The respondent submitted that it is evident and agreed by the applicant that Blackboy Hollow Road is in poor condition.
A particular section of Blackboy Hollow Road, close to the south-east corner of the subject land, is identified as requiring upgrading. The section comprises a steep incline and is about 100 metres long.
The respondent submits that the upgrading required in accordance with condition 9 is consistent with the intent of Commission policies DC 1.1, DC 1.7 and DC 3.7 which identify the obligations of subdividers to provide constructed road access to accommodate traffic generated by the subdivision.
The respondent also refers to the Planning for Bush Fire Protection policy document which sets out Performance Criteria and Acceptable Solution specifications for residential access, fire service access and access construction standards.
The respondent draws attention to the applicant's observation that the road is currently unsafe and difficult for a two-wheeled drive vehicle to access. It is therefore necessary to upgrade the road in order to comply with the requirements of the Planning for Bush Fire Protection policy.
The respondent holds the view that the applicant's argument as to the history and cause of the condition of Blackboy Hollow Road is not relevant to the need for the imposition of condition 9.
The respondent is of the view that condition 9 should be retained without change.
The applicant's argument
The applicant presented an account of the history of the construction of Blackboy Hollow Road.
In 2005, when the subject land was offered for sale by the then owner Cedarvale Pty Ltd, the property was inaccessible. Cedarvale Pty Ltd chose to construct Blackboy Hollow Road with a crushed limestone formation to improve accessibility. The works were completed in December 2005.
Assuming the road to be constructed to the local government's satisfaction, the applicant contracted to purchase the subject land.
In the course of pursuing subdivision of the subject land, the applicant learnt in late 2008 that the road was not built to the local government's satisfaction.
Following the initial construction of the road in 2005, it was agreed between the local government and Cedarvale's contractor that the steep section of road approaching the subject land should be observed through the winter of 2006 and if deemed unsatisfactory by the local government, would be required to be sealed by the contractor. This arrangement was never followed up by the local government.
The steep section of road remains unsealed and has deteriorated due to damage by water run-off.
The applicant argues that the local government had mismanaged the road construction project in not following up with the contractor to complete the seal of the steep section in 2006. In this regard it is unreasonable for the applicant to now be responsible for completion of this work.
The applicant has obtained an estimate for the road upgrading which, at 17 November 2008, amounted to the substantial cost of $57,600.
The applicant advises that the subdivision will not alter the maximum development potential of the property. Two development envelopes were approved some years ago and the situation will remain the same upon subdivision.
Blackboy Hollow Road should attract minimal traffic, but there is regular vehicle access by bushwalkers, sightseers, campers, government inspectors, firewood collectors and others. The applicant's use is miniscule by comparison.
The applicant's position is that the road was not constructed to the necessary standard because of the local government's mismanagement or lack of attention. The road is neglected and in a poor and possibly unsafe condition through no fault of the applicant, and the local government is abrogating its responsibility.
Condition 9 is therefore unjustifiable and should be deleted.
Analysis
The issue that arises from the evidence is whether the history of the construction of Blackboy Hollow Road has relevance to the validity of condition 9.
The applicant has submitted that the local government was responsible for ensuring that the road was properly constructed in 2005/2006 and was at fault for not requiring the completion of works to its satisfaction at that time.
The applicant's frustration at the circumstances that the works had not been completed at that time is understandable.
It should be borne in mind, though, that the road construction was apparently an unsolicited, voluntary act by the then owner of the subject land without any obligation to the local government.
There appears to have been no mandatory deadline for the completion of the roadworks.
It appears that the construction specifications were mutually agreed in order to meet certain standards but as far as the Tribunal understands, without sanction or penalty because the works were being undertaken voluntarily and in self-interest.
Subsequent to the initial limestone formation construction, the owner's contractor, although apparently aware of the expectation for reviewing and revisiting the need for sealing the steep section, for his part, took no steps to ascertain the local government's further requirements. Perhaps this was because the property had been sold and the contractor had no further contractual commitment to the previous owner.
It is not known whether the contractor had informed the previous owner as to the possible need for the sealing works.
The unfortunate death of the local government engineer supervising the project clouds the circumstances and would certainly have hindered communication between the parties.
Ultimately, the Tribunal understands that the road construction project at that time (2005/2006) was not a local government undertaking under its sole control and responsibility. The project was initiated voluntarily by the then owner of the subject land, but because of a number of changed circumstances, including some unforeseen, the project was not completed. It is as likely as not that even if communication between the parties had been maintained, the original owner of the land may not have been prepared to further contribute funds for sealing the steep section.
Given the circumstances described, the Tribunal has some difficulty with the proposition that the local government became responsible for completion of a project which was otherwise initiated by the previous landowner on the basis of a very understandable self-interest.
The Tribunal concludes that the present unfinished condition of Blackboy Hollow Road should not be viewed as a reason to blame the local government for mismanagement of the project or to assign fault for not requiring the landowner to complete the roadworks at the time. The Tribunal views the project as having been undertaken fundamentally in the interest of the then owner of the subject land. The local government's role was cooperative rather than determinative of its satisfactory completion.
Accordingly, the Tribunal is of the view that the history of the construction of Blackboy Hollow Road and the role of the local government at that time is not relevant to the validity of condition 9.
A second issue arises as to whether the subdivision will generate additional traffic to justify upgrading Blackboy Hollow Road, given that the subject land already has permission for two building envelopes.
It is theoretically possible that effecting the subdivision will not alter the traffic volumes on the access road.
It is more likely, though, that the advantage associated with division of the land into two titles available for negotiation and disposal will practically facilitate the maximum development potential of the land, more so than if the land remained as a single title. It follows therefore that the subdivision and associated development would be more likely to generate additional traffic on Blackboy Hollow Road.
The Tribunal is satisfied in this regard that condition 9, requiring the upgrading of Blackboy Hollow Road is justified on the basis that the subdivision will be more likely to generate extra traffic on that road.
Condition 9 has therefore been imposed consistently with the Commission's Policy DC 1.7.
Finally, the Tribunal notes the safety objectives of the Planning for Bush Fire Protection policy and the important obligation in accordance with the policy to provide residents in fire prone areas safe two way vehicular access and egress. A similar obligation is accorded to fire service vehicles.
The subject land is located in a fire prone area, and in the circumstances that a portion of Blackboy Hollow Road is agreed by the parties to be unsafe, it follows that condition 9 requiring upgrading of the road is justified on fire safety grounds.
It is apparent to the Tribunal that condition 9 requiring the upgrading of Blackboy Hollow Road is an appropriate and reasonable condition of the subdivision approval of the subject land.
Conclusion
The Tribunal concludes that the application for review of condition 3 (fire management plan), condition 8 (access way construction) and condition 9 (road construction) of the Commission's decision of subdivision approval should be allowed in part, but only to the extent that condition 3 should be reworded as agreed by the parties in their submissions.
Order
1.The application for review is allowed in part.
2.The decision of the Western Australian Planning Commission made on 25 August 2008 to affix condition 3, condition 8 and condition 9 on the granting of subdivision approval of Lot 1295 Blackboy Hollow Road, Margaret River into two lots is varied as follows:
3.Condition 3 is deleted and replaced with the following condition:
(3) The approved Fire Management Plan is to be implemented to the specifications of the local government (Local Government).
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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