MT LAWLEY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2005] WASAT 57

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928

CITATION: MT LAWLEY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 57

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR P McNAB (MEMBER)
MS M CONNOR (MEMBER)

HEARD: 7 FEBRUARY 2005

DELIVERED : 8 APRIL 2005

FILE NO/S: RD 267 of 2004

BETWEEN: MT LAWLEY PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review of conditions of subdivision - Unfair financial burden on applicant - Whether conditions fairly and reasonably relate to the subdivision - Whether conditions beyond power of the decisionmaker - Intention of conditions - Meaning of "encroach" - Conditions do not preclude development application

Legislation:

Metropolitan Region Town Planning Scheme Act 1959 (WA)

State Administrative Tribunal Act 2004 (WA), s 61(1)(a), s 167(4)(a)

Town Planning and Development Act 1928 (WA)

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M Hardy
Respondent: Ms L Christian

Solicitors:

Applicant: Hardy Bowen
Respondent: State Solicitor's Office

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

Anglo Estates Pty Ltd v Western Australian Planning Commission (1996) 18 SR (WA) 19
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Ocean Reef (W.A.) Pty Ltd v Town Planning Board (1984) 2 SR (WA) 131
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181

Case(s) also cited:

Bunbury Industrial Park Pty Ltd v State Planning Commission (1994) 12 SR (WA) 134
Cardwell Shire Council v King Ranch (1984) 58 ALJR 386; 54 LGRA 110; 53 ALR 632
Koltasz Smith & Partners v Western Australian State Planning Commission (2000) 23 SR (WA) 266
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 136 LGERA 16
Temwood Holdings Pty Ltd v Western Australian Planning Commission (2004) 79 ALJR 414

MR D R PARRY (SENIOR MEMBER), MR P McNAB (MEMBER), MS M CONNOR (MEMBER):

REASONS FOR DECISION

Introduction

Mount Lawley Pty Ltd ("the applicant") made application to the Western Australian Planning Commission ("the respondent") on 14 June 2004 to subdivide a part of Lot 47 Maralla Road, Ellenbrook ("subject land") into 116 lots plus 36 part lots.
The respondent approved the application on 16 September 2004 subject to 30 conditions and 14 advice notes.
The subdivision as approved will result in the creation of 116 residential lots ranging in size from 313 square metres to 1,044 square metres. Conditions 4 and 5 of the approval (while not in dispute) also require the creation of separate lots for two parts of Lot 47, which are not part of the subdivision application, encompassing the land reserved under the Metropolitan Region Scheme ("MRS") for "Primary Regional Road" (for the Perth-Darwin Highway) and for "Parks and Recreation".
The applicant, by Notice of Appeal dated 9 November 2004, appealed against conditions 19, 20 and 21 of the respondent's decision. The conditions read as follows:
"19.No earthworks shall encroach onto the Perth‑Darwin National Highway reserve. (MRWA)
20.No stormwater drainage shall be discharged onto the Perth‑Darwin National Highway reserve. (MRWA)
21.The applicant shall make good any damage to the existing verge vegetation within the Perth‑Darwin National Highway road reservation resulting from the subdivision. (MRWA)"
(The acronym "MRWA" is a reference to "Main Roads WA".)
This appeal was initially lodged with the Town Planning Appeal Tribunal, which was abolished as of 1 January 2005. This matter is now to be determined by this Tribunal in accordance with s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA).

The Subject Land

The subject land forms part of the land described as portion of Swan Location 1, Lot 47 on Plan 3220 comprised in Certificate of Title Volume 1493 Folio 272 ("Lot 47"). Lot 47 has a total area of 158.6368 hectares. The applicant is the registered proprietor of that land.
The topography of Lot 47 is undulating and comprises Bassendean dunes generally subject to a high winter water table. Remnant vegetation currently covers most of the site and "Conservation Category Wetlands" are located within the northern portion of Lot 47.
It is apparent from the proposed subdivision plan, which forms part of the application, that the "application area" occupies approximately 11.5 hectares in the south‑eastern corner of Lot 47. This portion of Lot 47 rises to a maximum elevation of just over 64 metres AHD adjacent to the Perth‑Darwin Highway reserve. The lowest part of the application area lies at between 45 metres and 46 metres AHD and is situated in the south‑eastern corner of Lot 47.

Planning Framework

The south‑eastern portion of Lot 47, which is proposed to be subdivided into residential lots, is zoned "Urban" in the MRS, while the remainder of Lot 47 is reserved in the MRS for "Parks and Recreation" and "Primary Regional Road".
The Shire of Swan Town Planning Scheme No 9 ("TPS 9") broadly reflects these MRS reservations, and zones a small part of the south‑eastern portion of the subject land for "Special Purpose – Ellenbrook Estate", while the remaining land is zoned "No Zone".
The respondent has prepared a number of planning documents for the purpose of exercising the power of the Commission under s 20 of the Town Planning and Development Act 1928 (WA) ("the Act").
Statement of Planning Policy No 1 – State Planning Framework Policy ("SPP 1") unites existing State and regional policies, strategies and guidelines within a central framework to provide a context for decision‑making on land use, subdivision and development in Western Australia. This Policy has been formulated under s 5AA of the Act and as such, the Tribunal is required to have "due regard" to the provisions contained within the Policy in making decisions on planning matters: see s 61(1)(a) of the Act.
Part A of SPP 1 establishes certain general principles for land use planning and development and identifies five key principles to guide the way in which future planning decisions are to be made. These principles underlie all State and regional plans, policies and strategies. One of the key principles focuses on "Infrastructure" and provides the following statements which are pertinent to this appeal:
"Planning should ensure that physical and community infrastructure by both public and private agencies is coordinated and provided in a way that is efficient, equitable, accessible and timely. This means:
•Planning for land use and development in a manner that allows for the logical and efficient provision and maintenance of infrastructure including the setting aside of land for the construction of future transport routes and essential services; [and]
•Protecting key infrastructure, including ports, airports, roads, railways and service corridors, from inappropriate land use and development; …"
Operational policies listed in SPP 1 and referred to by the respondent include Policy DC 1.1 Subdivision of Land – General Principles and Policy DC 1.7 General Road Planning. The relevance of these policies relates to long term planning goals in regard to the protection of regional road reserves in accordance with the MRS.
On 23 June 2004, the respondent referred the subdivision application to MRWA for comment. On 21 July 2004, MRWA responded by stating that the proposed subdivision was acceptable, subject to four conditions being imposed. These included the three conditions in dispute in these proceedings.

The Principal Issue in These Proceedings

The contest in this review is whether the disputed conditions fairly and reasonably relate to the subdivision. The applicant submitted that the disputed conditions place a "significant financial burden" upon it. The applicant, as noted above, owns not only the land proposed for the residential subdivision, but also the land subject to the road reservation. It requires fill, such as that available in the road reservation, to create the proposed residential lots. The applicant asserted that the intent of the respondent in imposing condition 19 was to effectively quarantine the sand reserves within the road reservation so that reserves could ultimately be used for the purposes of constructing the Perth‑Darwin National Highway. It was the applicant's contention that the desire of the MRWA not to import fill, but rather, to impose the burden of doing so on the applicant, was at the heart of condition 19, which was consequently beyond the power of the decision‑maker to impose.
In particular, the applicant asserted that condition 19 and the other conditions in dispute, fail to meet the second test for the validity of a condition as articulated in Newbury District Council v Secretary of State for the Environment[1981] AC 578, namely that it "fairly and reasonably relates to the development".
The applicant submitted that there was no nexus between the conditions imposed which, it contended, relate to the proposed construction of the Perth‑Darwin National Highway, and the subdivision, for the following reasons:
"(a)the highway does not exist;
(b)the construction of the highway, being so uncertain, is not related temporally to the subdivision;
(c)even if the construction of the highway were to be considered temporally related to the subdivision (which is not admitted), the requirement for the highway:
(i)has not been generated by the subdivision; and
(ii)does not comprise infrastructure the use of which is required by or related to the subdivision. The findings of fact by the Tribunal in Perrymead [Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181], Ocean Reef[Ocean Reef (W.A.) Pty Ltd v Town Planning Board (1984) 2 SR (WA) 131] and Anglo Estates [Anglo Estates Pty Ltd v Western Australian Planning Commission (1996) 18 SR (WA) 19], are distinguishable in this regard."
Mr Goff, who is a town planner with considerable experience, was called by the applicant to give evidence in these proceedings. Mr Goff's evidence was based on a plan prepared by Wood & Grieve, Engineers who were commissioned by the applicant to produce a plan of the earthworks concept. In order to facilitate drainage and sewerage and to create lots which are generally level and suitable for building with no hidden costs to the ultimate developer of each lot, he estimated that the low areas will need to be filled with up to 4.0 metres of sand while the ridge through the western part of the site will need to be reduced by up to 8.0 metres.
Three scenarios were developed to demonstrate the impacts of alternative earthwork proposals for the subject land:
(i)The first scenario proposes that earthworks within the road reservation could be integrated with the proposed finished ground levels within the adjacent residential subdivision. This option allows fill to be obtained from the reserve and maximises the fill that can be won from the subdivision area itself.
(ii)The second scenario assumes no encroachment of earthworks within the road reservation, and that finished ground levels within the residential subdivision remain as shown in the Wood & Grieve plan. This option results in a temporary retaining structure of up to 8.0 metres high at the highway/subdivision interface.
(iii)The third scenario also assumes no earthworks within the road reservation, avoids constructing a retaining wall and retains final subdivision ground levels at existing ground level. This option involves the loss of fill that could have been won by the owner from the highway reserve and the subdivision area, as well as the need for the side verge of the road to be graded up to the subdivision level.
Mr Goff asserted, based on estimates from Wood & Grieve, that 101,000 cubic metres of fill could be won from the reserve at a cost of $1.80 per cubic metre. Using the figure of $12.50 per cubic metre as the cost of importing fill material, he further calculated that the additional cost to the applicant due to the denial of the use of this resource would be in the order of approximately $1,080,700. In relation to the second scenario, he estimated that the cost of installing a retaining wall would be approximately $1,170,000. In relation to the raising of design levels under the third scenario, he estimated that the additional fill material needed would cost approximately $1,700,000.
Mr Goff also contended that the subdivision conditions could be seen as a constraint on the use of the land ahead of acquisition, which would adversely affect the land's value prior to purchase.
The respondent produced evidence in response to the applicant's position, but ultimately, the main thrust of its argument focused on the meaning and effect of the conditions in dispute. In particular, the respondent focused on the meaning and effect of the word "encroach" in condition 19. Ms Christian, counsel for the respondent, offered the following by way of explanation as to the effect of condition 19:
"… one can envisage a situation where one is carrying out earthworks on the urban zoned land, and as one can appreciate, dirt being what it is, … the earthworks being carried out … affect the natural ground levels in the road reserve. In my submission, that is encroachment. That is an example of encroachment. There is no works being carried out on the road reserve. The work is being carried out on the development, but it's affecting the road reserve …"
Mr Norwell, who is the Executive Director, Technology and Environment at MRWA, asserted in his written statement of evidence that the conditions were necessary to protect the integrity of the road reservation from the impact of adjacent development. Mr Norwell's oral evidence went on to explain the rationale of condition 19, as follows:
"I think our condition about encroachment of earthworks into the road reserve was probably more in line with an expectation that in a cut situation of a development, a batter extending to the road reserve – or conversely, if there was fill placed, that that would spill into the road reserve I think that's where we were coming from, without having, as I say, as I recall it, any understanding of the extent of the volume of earthworks that we're talking about here today."
Mr Norwell was not cross‑examined on this statement. The Tribunal accepts his evidence in this regard.
Similarly, the respondent argued that conditions 20 and 21 were directed at ensuring that something which occurs on the "Urban" zoned land should not relevantly impact on the road reserve.
The respondent therefore submitted that there is a clear nexus between the disputed conditions and the subdivision. The conditions simply seek to ensure that the works necessary to carry out the residential subdivision and the subdivision itself, will not adversely affect, whether by encroachment, discharge of stormwater or damage to vegetation, the adjoining road reservation.
The respondent submitted that the conditions could be reworded in such a way as to make explicit that the intention is not to preclude the applicant from making an application to the respondent to carry out excavation in the road reservation should it seek to utilise the fill in that portion of Lot 47. In our opinion, however, such an amendment is unnecessary. The conditions in dispute do not purport to preclude the applicant from applying to the respondent for planning permission to utilise fill in the road reservation. In particular, condition 19 only precludes earthworks necessary to construct the subdivision from encroaching into the reserved land.
The word "encroach", in this context, is an ordinary English word and is to be given its natural and ordinary meaning. The Australian Oxford Dictionary defines the meaning of "encroach" as "intrude, especially on another's territory or rights" and "advance gradually beyond due limits."
This definition accords with the reading of condition 19 as submitted by the respondent. The condition ensures that earthworks occurring on the "Urban" zoned land will not "advance gradually beyond" the limits of the "Urban" zoned land onto the land reserved for "Primary Regional Road".

Conclusion and Orders

The Tribunal is satisfied that the conditions in dispute reasonably and fairly relate to the subdivision. The applicant's case to the contrary proceeded on the basis of a misunderstanding as to the meaning and effect of the disputed conditions and in particular of condition 19. The conditions do not preclude a development application from being made under the MRS for excavation in the road reservation. All three conditions, read in the context of the subdivision, that is the subdivision of the "Urban" zoned land into residential lots, seek to ensure that works from the subdivision of that land do not relevantly impact on the road reservation. The conditions have a clear nexus to the subdivision and could not be considered to place an unfair burden on the applicant. The Tribunal considers that the conditions in dispute are lawful and appropriate.
The orders of the Tribunal are:
1.The application for review of the decision of the respondent to impose conditions 19, 20 and 21 on the grant of subdivision approval in relation to a part of Lot 47, Maralla Road, Ellenbrook is dismissed.
2.The decision of the respondent is affirmed.

I certify that this and the preceding 10 pages comprise the reasons for decision of the Tribunal.

______________

Mr D R Parry

Senior Member