Michell Hodgetts & Associates Pty Ltd v Resource Management and Planning Appeal Tribunal
[2010] TASSC 61
•17 December 2010
[2010] TASSC 61
COURT: SUPREME COURT OF TASMANIA
CITATION:Michell Hodgetts & Associates Pty Ltd v Resource Management and Planning Appeal Tribunal [2010] TASSC 61
PARTIES: MICHELL HODGETTS & ASSOCIATES PTY LTD
v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
FILE NO/S: 594/2010
DECISION
APPEALED FROM: Michell Hodgetts & Associates Pty Ltd v Central Coast Council [2010] TASRMPAT 113 Amended
DELIVERED ON: 17 December 2010
DELIVERED AT: Hobart
HEARING DATE: 20 October 2010
JUDGMENT OF: Evans J
CATCHWORDS:
Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Conditions – Power to impose.
Water and Sewerage Industry Act 2008 (Tas), ss56O, 56P, 56Q.
Evans v Donaldson (1909) CLR 140; Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; Planning Commission WA v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 79 ALJR 414, referred to.
Aust Dig Environment and Planning [217]
REPRESENTATION:
Counsel:
Appellant: W A Ayliffe
Respondent: S B McElwaine
Solicitors:
Appellant: Walsh Day James Mihal Pty
Respondent: Shaun McElwaine & Associates
Judgment Number: [2010] TASSC 61
Number of paragraphs: 29
Serial No 61/2010
File No 594/2010
MICHELL HODGETTS & ASSOCIATES PTY LTD v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
REASONS FOR JUDGMENT EVANS J
17 DECEMBER 2010
The appellant appeals against a decision of the Resource Management and Planning Appeal Tribunal that requires the Central Coast Council to impose a condition on the grant of a planning permit for a 71 lot residential subdivision in Ulverstone. The condition is to the effect that the developer must pay Cradle Mountain Water an indexed amount of $4,018 per lot in the subdivision referable to the provision of water and sewerage services.
In its decision, the Tribunal noted that the Council had dealt with the application for the permit in the ordinary way, and that, the application being for a subdivision, it was discretionary and fell to be dealt with under the Land Use Planning and Approvals Act 1993, s57. Consistent with the Water and Sewerage Industry Act 2008, s56O, the Council had referred the development application to Cradle Mountain Water, and as to what then ensued, the Tribunal said:
"4Having had the matter referred to it Cradle Mountain Water exercised the right conferred by Section 56P of the Water and Sewerage Industry Act 2008 to make a submission to the Council in respect of the proposed 71 lot subdivision. By formal submission it advised the Council that it did not object to the issue of a permit if that permit was the subject to various conditions specified by it (see Section 56P(2)(b)). As a consequence and as a result of Section 56Q(2) the Council, as it was obliged, having decided to issue the permit included in that permit the conditions that Cradle Mountain Water required (See Section 56Q(2)(a)). All those conditions covered water and sewerage supply issues, and most are not in dispute.
5Relevantly, however, Condition 29 included in the permit as required by Cradle Mountain Water was in the following terms:
'Water and sewerage headworks contribution
29 The Developer is required to pay CMW [Cradle Mountain Water] a water and sewerage headwork's [sic] in accordance with the [Cradle Mountain Water] water and sewerage headworks policy in effect on the date the final survey plan is lodged with [the] Council. Payment is to be made under [Cradle Mountain Water] prior to [the] Council sealing the final plan of survey.'
6Unhappy with this (and some other conditions), Michell Hodgetts & Associates Pty Ltd instituted an appeal with the Resource Management and Planning Appeal Tribunal (the 'Appeal Tribunal'). In the event the Appellant only challenged Condition 29 contending in its grounds of appeal that the condition was 'illegal' and could not 'be imposed prior to policy enactment only at time of lodgement of prop.[sic] plan with a policy in place'.
7Preliminary points were raised with respect to several matters which were the subject of a decision of the Tribunal on 22nd January 2010 [see Michel Hodgetts & Associates Pty Ltd v Central Coast Council [2010] TASRMPAT 10]. At least so far as water and sewerage conditions generally are concerned the effect of that decision was that the Tribunal was (and is) satisfied that it is not constrained in the same way as the Council by Section 56Q of the Water and Sewerage Industry Act 2008 and may, if persuaded after a merits-based hearing that it is appropriate so to do, require conditions to be included in this (or any other) permit at the behest of a regulated entity to be either removed entirely from this (or any other) permit amended or substituted as the Tribunal sees fit.
8A second ruling by the Tribunal dealt specifically with Condition 29 in this permit. That condition was identical to three (3) other conditions in three (3) other planning permits issued by councils in the area subject to the Cradle Mountain Water Authority. In a jurisdictional ruling the Tribunal took the view that condition 29 was void but severable from the permit but that a developer charge - (see Section 3 of the Water and Sewerage Industry Act 2008) - was within power. Nothing said in the hearing of this matter persuades the Tribunal that this conclusion was incorrect.
9A condition with respect to developer charges is intra vires for two reasons. The first is that the Water and Sewerage Industry Act 2008 establishes a regime, albeit one that is not without difficulty in both application and endeavouring to discern just how it is to operate, whereby price is regulated (see Division 5). 'Price' is defined in Section 3 of the Act as:
'price means the price or price range however designated –
(a) for the provision of a regulated service; or
(b)for developer charges for water infrastructure and sewerage infrastructure –
and includes a charge or tariff or particular factor, policy or a formula used in fixing the price;
Section 66 (part of Division 5) requires the Regulator to make price determinations that apply to a regulated entity in respect of a regulated service.
10 Section 66(2)(b) expressly provides:
'66 Price determinations
...
(2)In making a price determination under subsection (1), the Regulator must –
...
(b) determine prices, terms and conditions, including developer charges, for water services and sewerage services in accordance with the pricing principles referred to in section 68 or any principles prescribed by regulations under that section; and
...
[emphasis added]
11Nowhere in the Act is the expression 'developer charges' defined but it can have no other meaning than a charge that is levied in relation to infrastructure provision. No other sensible meaning could attach to the expression when regard is had to both the specific language of the relevant parts of the Act and the purpose of the statute. Thus on the face of it a power exists to levy a charge in respect of developer charges (or headworks charges – the terms are interchangeable).
12Second, even if the Tribunal is wrong in its conclusion that the Waterand Sewerage Industry Act 2008 provides a head of power for the imposition of such a charge the Tribunal is satisfied that the imposition of a headwords or developer charge is a proper exercise of the general planning power to impose conditions in respect of discretionary uses or developments (section 51(3A) of the Land Use Planning and Approvals Act 1993 - DOMA v the City of Hobart [1983] TASR 132 at 151). Any suggestion that the situation in this case is in some way outside that particular statutory regime because the impugned condition was imposed by the Council at the insistence of the Authority under Section 56Q needs to recognise the effect of Section 56Q(4) which, in the Tribunal's view, seems to bring the issue within the ordinary provisions of the Land Use Act. This is, of course, subject to the broad proposition that a permit condition will be valid if it is:
• Imposed for a proper planning purpose;
• Is objectively reasonable;
• Is certain; and
• Relevant to the subject matter of the application
(see Planning Commission WA v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 79 ALJR 414)
13The other problem which could arguably cause difficulty for the condition is the general prohibition against the imposition of a tax in the guise of a condition attaching to a planning permit (which apart from offending that specific rule also falls foul of the requirement that a condition be relevant to the subject matter of the application). In this instance it is not reasonably open to conclude that the condition is a tax since there is a clear nexus between the proposed development and the substance, and probably calculation, of the charge.
14In summary, the Tribunal is satisfied that a headworks or developers charge is within power and provided it meets the Temwood Holdings (supra) test is a valid exercise of that power.
15It follows that there is a head of power to authorise the imposition of what used to be called a 'headworks charge'. Such a charge, whether it relates to the actual cost of constructing the necessary infrastructure to support a development on specified land or is an indirect charge representing a contribution to the cost of infrastructure which may be shared by a development in a particular area, is, on the face of it, in terms of the Water and Sewerage Industry Act 2008 within power. It was submitted on behalf of the Appellant that, because of identified and undoubted deficiencies with respect to the Interim Pricing Order and the Developer Charges Pricing Policy, that the power ought not be exercised. That is as may be, but it does not derogate from the broader proposition that a developer charge is within power, for neither document is a source of power and neither is necessary either for a valid exercise of that power.
The Issue
16The questions then are should a developer charge be imposed in this case at all and, if yes, what amount should it be? The answers to those questions are, yes, and $4018 per lot payable at the time of the sealing of the final plan and indexed in accordance the Consumer Price Index."
In the balance of its decision, the Tribunal:
·explained that it was satisfied the imposition of the charge was within power and justified in the circumstances of the case;
·dealt with evidence upon which it based the calculation of $4,018, and said that this amount was a fair and appropriate charge; and
·said with reference to a witness who gave evidence in support of the calculation and its reasons for requiring the imposition of the condition:
"20 Essential to his calculation was the following proposition:
'All development creates demand for services, and it is therefore equitable that any development pays a contribution towards the capital cost of infrastructure and facilities required to meet that demand. In very simple terms this development not only adds to the operational and maintenance costs of the Ulverstone sewerage and water systems but it also uses up spare capacity moving both systems closer to the time when capacity upgrading will require significant capital funding'.
21Such an approach is appropriate and accepted by the Tribunal as being consistent with logic, principle and authority (See a similar approach in Eddie Barron Construction Pty Ltd v Pakenham City Council [1990] VICCAT 3). Such an approach allows for a proper strategic treatment of issues associated with water and sewerage infrastructure provision, at least at a regional level. As such it is entirely consistent with the objectives of the Resource Management and Planning System of Tasmania (see Schedule I of the Appeal Tribunal Act). It allows for proper future planning rather than an ad hoc response on a case-by-case basis as and when individual developments are proposed."
In his written submissions, counsel for the appellant summarised the grounds of appeal as:
"1challenging the over arching conclusion of the Tribunal that the imposition of the developer charge condition in the circumstances of this case was within the power and jurisdiction of the Tribunal;
2challenging the conclusion of the Tribunal that the developer charge was authorised by the Water and Sewerage Industry Act 2008 and the Interim Pricing Order 1st July 2009 ('the IPO') made pursuant to that Act;
3challenging the conclusion of the Tribunal that the developer charge condition would also be validated on the basis that it represented a valid use by the Tribunal of the general planning power conferred on the Council (and hence the Tribunal) by section 51(3A) of the Land Use Planning and Approvals Act 1993;and
4challenging the implicit conclusion of the Tribunal that the condition satisfied the Temwood Holdings test."
At the core of the first three of these grounds is the power to impose the condition in contention, a condition referable to water and sewerage services. The application that resulted in the imposition of that condition is an application for a planning permit for the subdivision of residential land subject to the Central Coast Planning Scheme 2005. The Local Government (Building and Miscellaneous Provisions) Act 1993, s81(2), requires that unless a planning scheme provides otherwise, an application for the approval of a subdivision plan is to be made as if it is an application for a discretionary permit under the Land Use Planning and Approvals Act 1993 ("LUPA"), s57. As the Scheme in question does not provide otherwise LUPA, s57, applies, and in consequence LUPA s51, (3A) also applies. The effect of these provisions is that a planning authority may grant a discretionary permit "subject to such conditions or restrictions as the planning authority may impose".
Provisions in the Scheme that are relevant to the application in question include:
"4.9.1 In determining an application for a permit Council must:
(a) seek to further the objectives of the Act [LUPA];
…
(d) give effect to all relevant standards and any other requirements specified in this planning scheme;
and must have regard to:
(e) the objectives for planning as set out in Part A;
(f) the purpose of the relevant zone;
…;
4.11.2Council has the discretion to refuse or grant a permit for a discretionary use or development and may impose conditions and restrictions."
One of the planning objectives detailed in the Scheme, Part A, is that "infrastructure services are to be used and extended in an efficient manner". The land subject to the proposed subdivision is zoned residential under the Scheme. The Scheme, cl 6, addresses the purposes of the residential zone and the standards for development in that zone. The purposes include the provision of full infrastructure services. The objectives include ensuring the sustainable development of adjoining properties, and ensuring that each lot has appropriate sewerage and water services.
In brief summary, the Water and Sewerage Industry Act 2008 ("WSIA"), s30, requires that any entity that owns, operates or provides water or sewerage infrastructure or services be licensed or otherwise permitted under the Act not to hold a licence. Section 3 provides that such an entity is a "regulated entity". Cradle Mountain Water is the regulated entity referable to the land in question.
Plainly, approval of the proposed subdivision would increase the demand for water and sewerage services provided by Cradle Mountain Water. Accordingly, consistent with WSIA, s56O(1), when the Council received the application in question it was required to give Cradle Mountain Water notice of it. Section 56O(1), provides:
"(1) If a planning authority receives an application in relation to any matter that would –
(a) increase the demand for water supplied by the relevant regulated entity; or
(b) increase the amount of sewerage or toxins that is to be removed by, or discharged into, the relevant regulated entity's sewerage infrastructure; or
(c) damage or interfere with the relevant regulated entity's works; or
(d) adversely affect the relevant regulated entity's operations –
the planning authority must, without delay, give the relevant regulated entity notice of the application …".
The Council, having given Cradle Mountain Water notice of the application, the following provisions of WSIA are relevant to what then ensued:
"56P Action by relevant regulated entity
(1) The relevant regulated entity may make submissions to the planning authority on an application that is the subject of a notice under section 56O(1) and the relevant regulated entity is taken to be a person who has made representations under section 43F(5) or 57(5) of the Land Use Planning and Approvals Act 1993 if it has made any such submissions.
(2) A submission made under subsection (1) by a regulated entity to a planning authority may include a submission that –
(a) the regulated entity does not object to the granting of the permit; or
(b) the regulated entity does not object if the permit is subject to conditions specified by the regulated entity; or
(c) in the case of a discretionary development permit or combined permit, the regulated entity objects to the granting of the permit on any specified ground.
(3) The planning authority may assume that the relevant regulated entity has no submissions to make in relation to an application of which notice has been given under section 56O(1) if no such submissions are received by the planning authority within 14 days after the notice was given to the relevant regulated entity or within such further period the planning authority may allow.
(4) …
56Q Planning authority's decision
(1) The planning authority must take into account any submissions made by the relevant regulated entity under section 56P(1) in relation to an application that is the subject of a notice under section 56O(1), in determining whether to grant the permit, to attach conditions to it or to refuse to grant a discretionary development permit or a combined permit.
(2) In deciding to grant the permit, the planning authority must –
(a) include any condition that a relevant regulated entity requires; and
(b) not attach a condition to a permit which conflicts with any condition included under paragraph (a).
(3) If a regulated entity makes a submission under section 56P(1) objecting to the grant of a discretionary development permit or combined permit, the planning authority must refuse to grant the permit.
…. ".
These provisions of WSIA give a regulated entity such as Cradle Mountain Water significant power in relation to applications for development permits that, if granted, will increase the demand for water or sewerage services provided by that entity or adversely impact on its works or operations. Whilst the regulated entity cannot oblige the planning authority to approve an application for a permit, it can require the planning authority to impose conditions on a permit if granted, s56P(2)(b) and s56Q(2)(a), or require the planning authority to refuse to grant a discretionary permit, s56P(2)(c) and s56Q(3).
Insofar as these provisions require a planning authority to impose conditions and refuse permits as directed by a regulated entity, they fly in the face of the obligation of a planning authority to itself make decisions pursuant to the provisions of LUPA and the applicable planning scheme. A decision-maker such as a planning authority must make its own decision. It must not act under dictation; Evans v Donaldson (1909) CLR 140 at 155 and Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404. The means adopted by WSIA to validate a decision of a planning authority that is dictated by a regulated entity is s56Q(4), which provides:
"(4) For the purposes of this Subdivision, the planning authority is taken to have power under the Land Use Planning and Approvals Act 1993 to –
(a)impose any conditions that the regulated entity requires under section 56P(2)(b); or
(b)refuse to grant a permit that the regulated entity has objected to the granting of under section 56P(2)(c)".
In the event of an appeal to the Tribunal pursuant to LUPA, s61, against a determination of a planning authority which was dictated by a regulated entity, WSIA, s56R(3), provides that the regulated entity is a party to that appeal. With respect to such an appeal to the Tribunal, LUPA, s62(1), provides that the Tribunal may "direct the planning authority that the permit must or must not contain any specified conditions".
In this case a condition that Cradle Mountain Water required the Council to impose on the grant of the permit was condition 29, as set out in par[5] of the Tribunal's decision. The Council granted the permit subject to conditions that included condition 29. The appellant appealed to the Tribunal against a number of aspects of the terms of the grant of the permit, one of which was the imposition of condition 29. The appeal against that condition was dealt with by the Tribunal as a preliminary issue. The appellant submitted to the Tribunal that condition 29 was void as it offended the principles of certainty and finality. Cradle Mountain Water conceded that this was so. The Tribunal followed the decision in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, held that the condition was void, and quashed it. The Tribunal also held that the condition was severable. These decisions are not challenged on this appeal. What is under challenge is a decision of the Tribunal that, condition 29 having been quashed, it had the power to direct the Council to impose the following condition:
"'The Developer is to pay a Cradle Mountain Water Headworks charge in the sum of $4018.00 indexed in accordance with the Consumer Price Index (All Groups – Hobart) for each Equivalent Tenement. Payment is to be made to the Tasmanian Water and Sewerage Corporation (North West Region) Pty Ltd trading as Cradle Mountain Water immediately prior to the sealing of the final plan of survey.'"
The appellant, in effect, contends that by reason of the provisions of WSIA, neither the Council nor the Tribunal had power to impose this condition. More specifically, it is submitted that consistent with the provisions of WSIA, the jurisdiction to impose conditions referable to water and sewerage services is now vested solely in regulated entities, that LUPA, s51(3A), no longer entitles a planning authority to impose conditions referable to these services, and that LUPA, s62(1), does not give the Tribunal any power which a planning authority does not have referable to these matters.
The appellant submits that WSIA has removed responsibility for water and sewerage services from planning authorities and vested this responsibility in regulated entities. It submits that the Scheme that emerges from WISA, s56O to 56R, is that decisions referable to the imposition of conditions in relation to water and sewerage services are to be made by regulated entities, and that the role of planning authorities in relation to such conditions is now "administrative, simply a machinery role".
The provisions of WSIA bring about significant changes in relation to a number of matters referable to water and sewerage services. They introduce the concept of regulated entities. They contain extensive provisions referable to the prices, terms and conditions for the provision of water or sewerage services by regulated entities. They include s64(1) which provides that the Regulator (which means the Tasmanian Economic Regulator established under the Economic Regulator Act 2009, s9) may regulate the prices, terms and conditions for the provision of these services by a regulated entity, and, s88(1), which provides that the Treasurer may make an interim order in relation to these matters. The effect of these and related provisions of WSIA is that when the price for water or sewerage services is determined by the Regulator, it is binding on a regulated entity, s66(7), and when it is fixed by an interim order made by the Treasurer, a regulated entity must comply with the order, s88(4).
It is common ground that at the relevant time the price for water or sewerage services had not been fixed by the Regulator. Pursuant to WSIA, s88, the Treasurer, by notice published in the Gazette on 1 July 2009, made an interim order entitled, "Water and Sewerage Industry Act 2008 Interim Price Order". The Tribunal refers to this order as the "IPO" and I will do likewise. The IPO defines the term "developer charges" as meaning:
"(a)the full or partial cost of any extension of water or sewerage infrastructure, or expansion of its capacity, required as a result of a new development; or
(b)the gifting of water or sewerage infrastructure to a regulated entity which was paid for by a developer so as to affect the extension or expansion referred to in (a); …".
As to developer charges, the IPO relevantly provides:
"6.1Consistent with a policy developed under 56J(4) of the Water and Sewerage Industry Act 2008, developer charges may be applied by the regulated entity to developers requiring the extension or expansion of the regulated entity's water infrastructure or sewerage infrastructure.
6.2A regulated entity is to levy developer charges that are economically justifiable in that they represent costs reasonably attributable to the developer, and which are to be consistent with pricing principles 68(1)(a)(i), 68(1)(b)(ii) and 68(1)(e) of the Water and Sewerage Industry Act 2008."
Neither limb of the definition adopted by the IPO for developer charges covers the charge in contention, which requires a contribution to the cost of the existing water and sewerage infrastructure that the subdivided lots will utilise. The first limb of the definition is confined to the full or partial cost of extending or expanding water or sewerage infrastructure, and does not extend to a charge referable to utilising existing infrastructure. The second limb of the definition relates to the gifting of water or sewerage infrastructure to a regulated entity which was paid for by a developer. The charge in contention has nothing to do with such a gift. Accordingly, the IPO does not purport to govern a charge of the nature of that which the Tribunal required the Council to impose, and it has no application to it. In any event, it is to be remembered that whilst WSIA, s88(4), requires a regulated entity to comply with an interim order made pursuant to that section, no similar provision applies to a planning authority or the Tribunal. The IPO does not derogate from the general planning power of a planning authority and thereby the Tribunal in respect of a condition of the nature in contention.
I am unable to find in WSIA, s56O to s56Q, or any other of its provisions, a basis for concluding, as the appellant contends, that the power to impose conditions referable to water and sewerage is now vested in regulated entities alone Notwithstanding the substantial authority that WSIA bestows on the Regulator and regulated entities referable to water or sewerage services, its provisions do not go so far as to deny planning authorities or the Tribunal any power referable to these matters.
It is beyond question that the provision of water and sewerage services is of fundamental importance to many aspects of the responsibilities of a planning authority. This State is divided into municipal areas, Local Government Act 1993, s16(1). Each municipality has a council, Local Government Act, s18(1). A council is a planning authority, LUPA, s3. A planning authority is responsible for land use and planning within its municipal area, and a planning scheme for an area must, amongst other things, further the objectives set out in LUPA, Sch1, Local Government Act, s20(1)(a) and LUPA, s51(2)(a). Those objectives include providing for: the fair, orderly and sustainable use and development of land and water; sustaining the potential natural and physical resources to meet the reasonably foreseeable needs of future generations; protecting public infrastructure and other assets; and enabling the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community. Consistent with these objectives, planning authorities must have power in relation to water and sewerage services and it is inevitable that planning schemes must, as the Scheme in this case does, contain numerous provisions referable to these services. As already mentioned, the Scheme's objectives in relation to subdivisions in the residential zone include ensuring that each lot has appropriate sewerage and water services. The acceptable standard for these services in the residential zone is connection to a reticulated sewerage system and connection to a reticulated water supply of a specified pressure; see the Scheme cl 6.3.1, (2) and (3), and P2. The Scheme contains broadly similar provisions referable to sewerage and water services in at least eight zones besides the residential zone.
Whilst a regulated entity may make submissions to a planning authority about an application for a permit, it is not obliged to do so, s56P(1). A planning authority may assume that a regulated entity has no submissions to make if submissions are not received within the time specified, s56P(3). If a regulated entity does not make submissions on an application for a permit, but the planning authority considers that conditions referable to water and sewerage services should apply to the grant of the permit, plainly, the authority should impose those conditions. That a planning authority retains the power to impose conditions referable to water and sewerage services is recognised by s56Q(2)(b) which requires that a condition imposed by a planning authority must not conflict with a condition required by a regulated entity. So, contrary to the appellant's contention that the effect of the provisions of WSIA is to deprive planning authorities of the power to impose conditions referable to water and sewerage, that Act implicitly recognises that planning authorities retain such a power. I accordingly agree with the Tribunal that the Council retains a general planning power to impose conditions of the nature in question.
For the above reasons, I reject the first and third grounds of appeal set out in par[4] of these reasons. Whilst this disposes of the proposition that the Tribunal did not have the power to impose the condition in contention, I will address the second ground of appeal, which challenges the Tribunal's conclusion that it was also authorised by WSIA and the IPO to impose the condition in contention. The Tribunal did not hold that the IPO authorised the imposition of the condition. However, in pars[9] – [12] of its decision, the Tribunal did conclude that WSIA was one of two sources for its power to impose a condition containing the charge in question. In the condition the Tribunal characterises the charge as a "Headworks charge". In par[11] of its decision, the Tribunal said that the terms "developer charges" and "headworks charges" are interchangeable. The term "developer charges" is not defined in WSIA. In par[11] of its decision the Tribunal said that this term means a charge that is levied in relation to infrastructure provision.
Amongst the powers WSIA gives to the Regulator is a power to regulate prices for "regulated services", a regulated service being "the provision of a water service or a sewerage service by a regulated entity", s3. The same section defines "price" as including the price "for developer charges for water infrastructure and sewerage infrastructure". In making a price determination, the Regulator must determine prices "including developer charges, for water services and sewerage services", s66(2)(b). The Treasurer is empowered to make an interim order in relation to the provision of a regulated service, s88(1). Whilst these provisions empower the Regulator and the Treasurer to determine the price for matters including developer charges, they are not the source of the power of a regulated entity to require the imposition of conditions of the nature of a developer charge. The source of that power is to be found in s56O(1), s56P(2)(b), and s56Q(2)(a). These provisions empower a regulated entity to require the imposition of such a condition, and oblige a planning authority to impose it when so required. These provisions do not authorise a planning authority to impose such a condition, save where required to do so by a regulated entity.
In this case, as the regulated entity, Cradle Mountain Water, required the Council to impose condition 29, the Council was obliged to do so by s56Q(2)(a). However, condition 29 was quashed by the Tribunal which required the Council to impose the condition in contention. As the condition in contention is not a condition that Cradle Mountain Water required the Council to impose, it is not imposed pursuant to s56Q(2)(a). That being so, it is not correct to say, as the Tribunal did, that WSIA provides a head of power for its imposition. Whilst the Tribunal erred in this regard, this does not mean that the appeal should succeed. As already explained, planning authorities retain general planning powers referrable to water and sewerage. Consistent with that power, subject to WSIA s56Q(2)(b), the Council was entitled to impose conditions referrable to water and sewerage, LUPA, s51(3A), and the Scheme cl 4.11.2. As the Council had these powers, so did the Tribunal; the Resource Management and Planning Appeal Tribunal Act 1993, s23(1), supplemented by LUPA, s62(1)(c)(ii).
I turn to the fourth ground of appeal referred to in par[4] of these reasons which challenges the conclusion of the Tribunal that the condition it required the Council to impose satisfied the Temwood Holdings test. In its decision at par[12], the Tribunal said that the validity of the condition was:
"subject to the broad proposition that a permit condition will be valid if it is:
• Imposed for a proper planning purpose;
• Is objectively reasonable;
• Is certain; and
• Relevant to the subject matter of the application.
(see Western AustralianPlanning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 79 ALJR 414)".
The appellant submits that the elements of the Temwood Holdings test, as stated by the Tribunal, differ somewhat to the test as proposed in that decision:
· by McHugh JA, who said, at par[53]:
"On the assumption that the Commission had the power to impose the condition on Temwood's applications for subdivision approval, the question that then arises is whether the condition was imposed for a purpose extraneous to a legitimate planning purpose. Was it a bona fide exercise by the Commission of its powers for a legitimate planning purpose? Did it reasonably relate to the proposed development or was it so unreasonable that no reasonable planning authority would have imposed it?"; and
· by Gummow and Hayne JJ, at par[93], where their Honours refer to the need for a condition to be "reasonably capable of being regarded as related to the purpose for which the functions of the responsible authority were being exercised; … ".
The appellant contends that the condition the Tribunal required the Council to impose was "extraneous to a legitimate planning purpose". This contention is advanced on the basis that "as already submitted, the jurisdiction to impose a development charge was prescribed and constrained by WSIA and the IPO made pursuant to s88 of that Act, and that legislation did not authorise the rendering of a developer charge for use of existing infrastructure". As I have already rejected this contention, there is nothing I need to add.
A further submission advanced by the appellant is that the imposition of the condition was objectively unreasonable because it was based on a policy decision which had been taken by Cradle Mountain Water without recourse to the Regulator, and this contravened the statutory Scheme. I am not persuaded that the Tribunal's decision was objectively unreasonable. It was a decision made consistent with the authority of the Tribunal and the obligations of the Council with regard to water and sewerage, and did not involve the contravention of any statutory scheme. Insofar as the decision was based on facts, it is to be remembered that the appellant's appeal to this Court is confined to questions of law; see the Resource Management and Planning Appeal Tribunal Act, s25(1).
I dismiss the appeal.
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