MURTEN and WESTERN AUSTRALIAN PLANNING COMMISSION
[2015] WASAT 83
•4 AUGUST 2015
MURTEN and WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 83
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 83 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:271/2014 | 4 JUNE 2015 | |
| Coram: | MR J JORDAN (SENIOR SESSIONAL MEMBER) | 4/08/15 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The application for review upheld in part Condition 4 amended to require the easement to be established only for the purpose of fire service access route Condition 9 replaced with a new condition to require the subdivider to pay for half the construction of the unmade section of Bedford Street | ||
| B | |||
| PDF Version |
| Parties: | ALLEN MURTEN WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town Planning Subdivision approval Review of conditions Condition requiring easements for a fire service route and a nonvehicular public accessway at all times Condition requiring construction of section of road across frontage of lots Existing access arrangements to land Structure plan requirements for subdivision of the lot and neighbouring lots Application of policy Tests for appropriateness of conditions Orderly and proper planning |
Legislation: | Planning and Development Act 2005 (WA), 251(1) Shire of Mundaring Local Planning Scheme No 4, cl 5.9.3 |
Case References: | Newbury District Council v Secretary of State for the Environment [1981] AC 578 Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 |
Orders | On the application heard before Senior Sessional Member James Jordan it is on 4 August 2015 ordered that:,1. The application for review of condition 4 is upheld in part. The condition is amended to delete (b) and (c) and to read as follows:,Easement(s) in accordance with sections 195 and 196 of the Land Administration Act 1997 (WA) for the benefit of the Shire of Mundaring are to be placed on the certificate(s) of title of the proposed lot(s) specifying access rights. Notice of this easement(s) is to be included on the diagram or plan of survey (deposited plan). The easement(s) are to state as follows:,(a) a fire service access route.,2. The application for review of condition 9 is upheld in part. Condition 9 as imposed is deleted and replaced with a new condition 9 as follows:,Satisfactory arrangements being made with the local government for half the cost of the construction of Bedford Street in the location as shown on the plan of subdivision to a standard of 5.5 metre asphalt, 1.2 metre gravel shoulders (7.9 metre formation) and open drainage, on an alignment that ensures mature trees are retained if possible. |
Summary | This matter was concerned with a review of two of the conditions imposed on the approval of a three lot rural residential subdivision in Mount Helena.,Condition 4 required granting of an easement in favour of the local government for the purpose of a fire service access route and a non-vehicular public accessway at all times. Condition 9 required the construction of a section of road across the frontage of one of the new lots to join two already constructed sections of the road.,The applicant argued that the conditions were unnecessary because they were not needed by the new lots, would only benefit others, would unnecessarily require vegetation to be destroyed and would be an unreasonable financial burden. ,The Tribunal found that, other than the requirement for unrestricted public access across the lot, the conditions were consistent with the structure plan put in place to facilitate subdivision and consistent with the planning controls of the local planning scheme and relevant policies for rural residential subdivision in an extreme rated bushfire risk area. The conditions, with some amendment, were found to fairly and reasonably relate to the approved subdivision. ,The Tribunal upheld the application for review in part, requiring that the easement only be for the purpose of the fire service access route and that the applicant be responsible for half the cost of the road construction. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MURTEN and WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 83 MEMBER : MR J JORDAN (SENIOR SESSIONAL MEMBER) HEARD : 4 JUNE 2015 DELIVERED : 4 AUGUST 2015 FILE NO/S : DR 271 of 2014 BETWEEN : ALLEN MURTEN
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town Planning Subdivision approval Review of conditions Condition requiring easements for a fire service route and a nonvehicular public accessway at all times Condition requiring construction of section of road across frontage of lots Existing access arrangements to land Structure plan requirements for subdivision of the lot and neighbouring lots Application of policy Tests for appropriateness of conditions Orderly and proper planning
Legislation:
Planning and Development Act 2005 (WA), 251(1)
Shire of Mundaring Local Planning Scheme No 4, cl 5.9.3
Result:
The application for review upheld in part
Condition 4 amended to require the easement to be established only for the purpose of fire service access route
Condition 9 replaced with a new condition to require the subdivider to pay for half the construction of the unmade section of Bedford Street
Summary of Tribunal's decision:
This matter was concerned with a review of two of the conditions imposed on the approval of a three lot rural residential subdivision in Mount Helena.
Condition 4 required granting of an easement in favour of the local government for the purpose of a fire service access route and a non-vehicular public accessway at all times. Condition 9 required the construction of a section of road across the frontage of one of the new lots to join two already constructed sections of the road.
The applicant argued that the conditions were unnecessary because they were not needed by the new lots, would only benefit others, would unnecessarily require vegetation to be destroyed and would be an unreasonable financial burden.
The Tribunal found that, other than the requirement for unrestricted public access across the lot, the conditions were consistent with the structure plan put in place to facilitate subdivision and consistent with the planning controls of the local planning scheme and relevant policies for rural residential subdivision in an extreme rated bushfire risk area. The conditions, with some amendment, were found to fairly and reasonably relate to the approved subdivision.
The Tribunal upheld the application for review in part, requiring that the easement only be for the purpose of the fire service access route and that the applicant be responsible for half the cost of the road construction.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Ms S Grebe (Acting As Agent)
Solicitors:
Applicant : N/A
Respondent : Western Australian Planning Commission
Case(s) referred to in decision(s):
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Introduction
1 These proceedings involved an application brought by Mr Allen Murten (applicant) pursuant to s 251(1) Planning and Development Act 2005 (WA) (PD Act) for review of the decision of the Western Australian Planning Commission (Commission or respondent) to impose certain conditions on the approval granted for the subdivision of Lot 4 Bedford Street, Mount Helena (site).
2 The three lots approved were northern Lot 1 of 2.5144 hectares, central Lot 2 of 2.6678 hectares, which contains the existing dwelling, and southern Lot 3 of 2.2683 hectares.
Site and locality
3 The site has frontage to the west to the road reserve of Bedford Street. Lot 1 would have a frontage of 120 metres to the Bedford Street road reserve, Lot 2 a frontage of 99.42 metres and Lot 3 would have a frontage of 112.43 metres.
4 The site is covered with remnant vegetation of eucalypt, banksia, Zanthorrea and undergrowth. The only clearing is for fire breaks, around the dwelling and for an access to the house.
5 To the east of Bedford Street, the site and surrounding lots can be generally characterised of being of a similar size. To the west of Bedford Street the locality can be characterised as comprising lots generally similar in size to those approved in the subdivision.
6 Opposite the southern boundary of the site on the western side of Bedford Street is a 25 metre wide reserve extending about 450 metres westward to Short Street. This reserve contains remnant vegetation and a gravel track.
7 As submitted by the respondent, from the south, Bedford Street is constructed and sealed to adjacent to the southern end of the site and from the north to adjacent to the northern end of the site. Between the sealed sections of Bedford Street is about 200 metres of vegetation in the road reserve, next to which is a track that deviates into the site along the fire break.
8 The Tribunal, accompanied by the applicant, the respondent's agent and the witnesses, viewed the site and surrounds.
Planning framework
9 The site is zoned Rural Residential under Shire of Mundaring Local Planning Scheme No 4 (LPS 4). Other planning documents referred to in the submissions of the parties and in the evidence before the Tribunal included:
• Development Control Policy 1.7 General Road Planning (DC 1.7);
• Development Control Policy 1.1 Subdivision of Land General Principles (DC 1.1);
• State Planning Policy 3.4 Natural Hazards and Disasters (SPP 3.4);
• Shire of Mundaring Wildlife Corridor Strategy;
• Shire of Mundaring Public Open Space Strategy (public open space strategy); and
• Planning for Bushfire Protection Guidelines (Edition 2).
10 The site is one of three lots that were included in what was initially known as a draft Local Subdivision and Infrastructure Plan (LSIP), but was finally adopted by the Shire of Mundaring (Shire) in May 2013 and endorsed by the Commission in March 2014 as Local Structure Plan 367 (LSP 367). LSP 367 includes the site, Lot 145 abutting to the south and Lot 3 abutting the rear of the site to the east fronting Alice Road. LSP 367 comprises an annotated map showing a subdivision layout for the three lots and a document titled 'Local Subdivision and Infrastructure Plan Supplementary Report Only' prepared by Land Insights and revised by Statewest Planning in July 2013, setting out objectives and standards for subdivision.
11 Lot 3 has subsequently been subdivided into five lots around a cul de sac consistent with LSP 367. New Lots 108, 109 and 110 have frontage to Alice Road and Lots 107 and 111 have access to the head of the cul de sac and abut the rear boundary of the site. The owner of Lot 145 has been granted approval to subdivide into three lots with two lots of about 2 hectares fronting Bedford Street and a third rear battleaxe lot of about 3.7 hectares. A plan has not yet been deposited for the subdivision of Lot 145.
The conditions in dispute
12 The subdivision of the site was approved by the Commission subject to conditions, including:
4. Easement(s) in accordance with Sections 195 and 196 of the Land Administration Act 1997 (WA) for the benefit of the Shire of Mundaring are to be placed on the certificate(s) of title of the proposed lot[s] specifying access rights. Notice of this easement[s] is to be included on the diagram or plan of survey (deposited plan). The easement[s] are to state as follows:
(a) a Fire Service Access Route;
(b) a non-vehicular public accessway at all times; and
(c) no fencing is permitted within the easement.
…
9. Satisfactory arrangements being made with the local government for the full cost of construction of Bedford Street in the location as shown on the plan of subdivision to a standard of 5.5 [metre] asphalt, 1.2 [metre] gravel shoulders and 7.2 [metre] formation and open drainage.
13 The applicant asked the Commission to reconsider the conditions. The Commission amended condition 9 to read '7.9 metres formation' in lieu of '7.2 metres'.
14 In its statement of issues, facts and contentions the respondent said it would consent to condition 9 being amended to read:
9. Satisfactory arrangements being made with the local government for half the cost of the construction of Bedford Street in the location as shown on the plan of subdivision to a standard of 5.5 [metre] asphalt, 1.2 [metre] gravel shoulders (7.9 [metre] formation) and open drainage, on an alignment that ensures mature trees are retained if possible.
Issues
15 The issue identified in this matter is:
Whether it is reasonable that the subdivision of the site should be subject to condition 4 and condition 9, having regard to the purpose for which the conditions are imposed and how they relate to the subdivision.
Discussion
16 In identifying the issue and in its submissions on the conditions, the respondent referred to certain tests to determine whether conditions 4 and 9 should remain as conditions of subdivision. The Tribunal notes that the tests referred to are commonly applied and are known as the 'Newbury Tests', from Newbury District Council v Secretary of State for the Environment [1981] AC 578, which has been endorsed by the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57]. These tests can be summarised as:
1) whether the condition is for a planning purpose and not for any ulterior purpose;
2) whether the condition reasonably and fairly relates to the development permitted; and
3) whether the condition is not so unreasonable that no reasonable planning authority could have imposed it.
17 The Tribunal will commence by commenting that it is not the Tribunal's role to replan this locality. The planning of the locality is the local government's role, with the oversight of the Commission, and after consultation with the community. The evidence is that this process has occurred and the Shire has established a planning framework for the future use and character of the locality within which the site is situated. The question for the Tribunal then is not whether the planning instruments such as LPS 4 and LSP 367, should be complied with, but whether there are circumstances that are of sufficient weight to warrant an exemption from provisions of the relevant planning instruments where discretion is available.
18 The applicant made a number of submissions both to the Shire of Mundaring and the Department of Planning, including a submission by a planning consultant on his behalf, prior to the adoption of LSP 367. The applicant does not agree with certain parts of LSP 367 as it was finally approved.
19 The Tribunal has formed the view that the applicant's approach to the subdivision conditions is coloured by his belief that his recommended version of LSP 367 is preferable to that which was finally adopted and endorsed by the relevant authorities. The applicant's submissions in support of his review of the conditions in question make reference to his preferred version of the LSP 367 rather than that which was finally approved.
20 The Tribunal would comment that it is consistent with orderly and proper planning to consider this matter in the context of LSP 367 adopted to facilitate the subdivision of the site and adjoining lots, not a version that the applicant would have preferred but was not adopted.
Whether condition 4 and condition 9 are for a planning purpose and not for any ulterior purpose
Condition 4
21 Condition 4 requires the creation of an easement for the benefit of the Shire 'specifying access rights'. The condition requires that the notice of easement is to 'state':
(a) a Fire Service Access Route;
(b) a non-vehicular public accessway at all times; and
(c) no fencing is permitted within the easement.
22 Dealing first with the fire service access route.
23 The annotations on the LSP 367 plan include:
Emergency Fire Service Access Route (10-12 mwide). Easement in gross, managed by the Shire. (Final alignment and width subject to flora assessment at subdivision stage).
24 Shown on LSP 367 is a blue hatched line marked as 'Emergency Fire Access Route' extending eastward from Bedford Street straddling the boundary between Lot 145 and the site, then Lot 145 and new Lot 107 and then turning north to extend along a common boundary between Lot 107, 108 and 109 to the head of the cul de sac off Alice Road.
25 The Tribunal would commence by stating that it has become well established that a fire safety assessment is a standard planning consideration integral to any rural subdivision. In bushfire risk localities, a fire management plan is required and this includes provision of fire service access routes. Mapping in the respondent's s 24 bundle of documents shows the Rural Residential zone where the site is located in an extreme bushfire risk area. The Tribunal notes that the report supporting LSP 367 included a fire management plan with the access route required by condition 4.
26 The applicant commented that Bedford Street to the north and south provided a fire service access route, connected by the strategic fire break along the site's front boundary. If a fire access route to the east is required, he argued that a better route would be the proposed battleaxe access leg on the southern boundary of Lot 145 to the south because of topography and lack of vegetation.
27 The Tribunal does not consider such routes to be a supplementary feature that would enhance a subdivision but not otherwise be essential, particularly in a high risk locality. Determining whether emergency bush fire access routes are available and if not, where they are to be provided is considered to be to be an integral part of the subdivision process in bush fire prone areas. This part of condition 4 is considered to be for a planning purpose.
28 The second 'access right' stated to be for the easement is 'a nonvehicular public accessway at all times'. This was explained to essentially be a footpath open to the public at large at any time to provide a link between Alice Road and the reserve west of Bedford Street, and ultimately open space in the locality.
29 The respondent's submission was that the public open space strategy included the need to 'identify public open space areas over landscape and conservation features and watercourses and land for recreation, bridle trails, pedestrian links and buffer areas on designated rural residential zoned lots with potential for subdivision'. The site was identified as a rural residential lot suitable for subdivision under LSP 367 and the respondent said it was appropriate that the easement be used for public access.
30 Mr Murten said this path was not part of, or included in the plans of the public open space strategy. He argued that the respondent was taking advantage of this subdivision to create for the Shire, a footpath system that the public would be able to use, without the Shire having to create public open space.
31 Creating public open space, including pedestrian links, is an established element of planning. In this matter, however, the Tribunal has formed the view that the condition is used for the purpose of enhancing the public open space network, but with the burden of providing the facility, in this case a pedestrian link, entirely borne by an individual landowner. This is not considered analogous to situations where adjacent lots are put to uses that usually invite the public at large to come onto the lots, such as in commercial or business zones. Coordinated control of parking and of pedestrian and vehicle access might be the proper subject of an easement in those circumstances.
32 In this matter the lots created are for private residential purposes, with no cause for the public to be invited. The Tribunal notes also that the LSP 367 plan makes no reference to a pedestrian link and the accompanying report refers only to a pedestrian link under the heading 'Emergency Access' and refers to the easement being used as a 'pedestrian link as well as a vehicle access in the event of an emergency'.
33 The LSP 367 report also states no public open space is proposed and the public open space strategy does not include this pedestrian link. The Shire does not appear to have revised its strategy since it was published in 2001. This part of condition 4 is arguably for the purpose of updating or amending these two planning documents, but the Tribunal has concluded that this is a purpose ulterior to the implementing of the planning requirements of those documents as they now stand.
34 The third requirement is that the easement state that no fencing is permitted in the easement. The right over the land must be capable of being the subject of an easement, such as fire service vehicle access. If the condition is understood, then not building fences cannot be the subject of an easement.
35 The purpose of this part of condition 4 would appear to be to remind the burdened land owner that he cannot do any works that prevents the easement being used for the purpose for which it is created. This appears to the Tribunal to be advice that would be included in a note to the subdivider, or perhaps as an annotation on an appropriate plan.
Condition 9
36 The annotations on the LSP 367 plan include:
Bedford Street to be connected as a sealed road at subdivision stage. Mature trees are to be retained where possible[.]
37 In respect to constructed road access, the Tribunal is of the opinion that it is an established planning principle that new lots created be provided with constructed road access. It must be possible for those who acquire newly created lots to have vehicular access to and from a constructed road. This principle has been included in adopted policy documents from well before the proposed subdivision of the site.
38 The Tribunal, again, considers constructed road access to newly created lots to be a primary planning purpose. Constructed road access is also a planning activity central to subdivision planning. It is not a feature that might enhance a subdivision but is otherwise peripheral to orderly planning.
39 The parties disagree, however, on whether, in the circumstances, the road should be constructed across the frontage of the site.
40 This can be addressed in the next test.
Whether condition 4 and condition 9 fairly and reasonably relate to the subdivision approved
41 This second 'Newbury' test is also referred to as the 'nexus' test. That is, does the subdivision bring about the need for the conditions in question?
42 The proposed subdivision of the site and the abutting lots has triggered the need for a local planning strategy and LPS 367 is the result of this process. It is of concern to the Tribunal that there is now a proposal that subdivision should be allowed, but that the subdivision should be exempt from certain requirements of LSP 367.
Condition 4
43 The applicant argued that a fire service access route is not necessary for the proposed subdivision and that it would only benefit the new lots to the east around the cul de sac. The applicant was of the view that Bedford Street to the north or, alternatively, to the south, together with internal firebreaks, would be adequate for both service vehicle access and resident escape. No expert evidence was filed to support this assertion.
44 In addition, the applicant said that the access route would result in the destruction of significant native vegetation, in conflict with the objectives in LPS 4, which emphasised retention of vegetation. A further submission was that it would be an unreasonable financial burden on the applicant to establish the access route at a trafficable standard.
45 The Tribunal has concluded that creating an easement for the purpose of fire service vehicle access fairly and reasonably relates to the proposed subdivision. The need for a service vehicle route was considered in depth in the preparation, assessment and adoption of LSP 367, which eventually included a fire management plan. The Tribunal accepts that in this extreme bushfire hazard locality, service and escape routes north and south, but also eastward for Bedford Street residents and westward for Alice Road residents is an integral part of increasing the residential density in the locality.
46 The Tribunal also accepts that to ensure the access route remains available, it is appropriate that an easement be created for the purpose. The applicant's offer to make his firebreaks available is not a longterm solution with ready access subject to the whim of future landowners.
47 The easement would be six metres wide on the applicant's land. The neighbour to the south will be required to create a similar easement to achieve the objectives of LSP 367. Some vegetation will be lost, particularly along the boundary line of the site, but the Tribunal notes that in the local context there would remain extensive areas of vegetation. The provision of a fire service access route for emergencies outweighs the loss of some vegetation.
48 The Tribunal finds that the residents of the new lots would benefit from this access route being available for emergencies. It is correct that others would also benefit. It is an established principle, however, that others benefitting is not a reason why a subdivider should not have a condition imposed when the condition is necessary for the subdivision to proceed: Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 (Perrymead).
Condition 9
49 It was the applicant's submission that the construction of Bedford Street was wanted by the Shire to provide a through road for all people living in the street. Adding one extra lot or two at the most does not 'demonstrate' that the upgrading of Bedford Street arises out of the effects of this subdivision. The applicant said the condition should therefore be rescinded.
50 The applicant pointed out that the road reserve includes significant vegetation, including at least two very old Jarrah trees, and he considered it to be part of a wildlife corridor. The boundary between the two northern lots could be shifted so that the central lot would have more direct access to the constructed northern section of Bedford Street.
51 The applicant argued that satisfying condition 9 would be an unreasonable financial burden on a three lot subdivision, with the estimated cost of roadworks to be way out of proportion to the return from the subdivision. The applicant said that condition 9 was particularly unreasonable in circumstances where the Shire had previously commenced some works to upgrade the unsealed track between the two ends of Bedford Street as part of its works programme, but had stopped when informed that the line being worked was the firebreak on the applicant's land. The applicant said the Shire has had the opportunity to construct the unmade section of road and should fund the road connection as part of its works programme.
52 In his submission, the applicant said the Shire and the Commission were being opportunistic, unfair and unreasonable in wanting the applicant to pay for half the cost of Bedford Street. From his understanding, other subdividers north of Colwyn Road were not required to make a contribution, or if a contribution was made it was not of this proportion. Emergency service vehicles could continue to use the applicant's fire break as a through route, as has been occurring for a number of years. This fire break will also provide an emergency escape for local residents.
53 The respondent said Bedford Street was required to be constructed because orderly planning requires that all lots are serviced with a road that is constructed to a standard that is appropriate for its function. The respondent emphasised that LSP 367 was adopted on the basis that Bedford Street would be constructed at the front of the site. It was explained that the structure plan requires the connection as a sealed road with mature trees retained where possible. Condition 9 therefore has a proper planning purpose in that it will ensure that all lots created will be provided with appropriate all weather access. Without condition 9, at least one lot would not have frontage to a road constructed to the appropriate standard. This it was asserted, would be inconsistent with the respondent's policies and does not constitute proper and orderly development.
54 Mr Jon Dooner, the coordinator for infrastructure development at the Shire was called as a witness by the respondent. Mr Dooner pointed out that condition 9 would require the applicant to obtain estimates for the design and construction from a suitably experienced person. Mr Dooner said that he supported the amendment to condition 9, suggested in the respondent's statement of issues, facts and contentions.
55 The respondent also called as a witness Mr Joe Algeri, a planning consultant. Mr Algeri said that contrary to the applicant's view, removal of vegetation for roads and easements is contemplated by cl 5.9.3 of LPS 4 and equally applies to clearing for the construction of any new driveways and building envelopes for new lots.
56 Mr Algeri argued that providing constructed road access was consistent with the planning framework. Even without LSP 367 there would be a direct link between the proposed subdivision and rural residential subdivision standards. These standards include constructed road access. Sections 3.7.1 and 3.7.2 of DC 1.1 requires that new green title lots be provided with such access. This standard is also to be found in DC 1.7, SPP 3.4, and LSP 367.
57 Mr Algeri added that condition 9 also provides for the safe connection of access routes according to the provisions for emergency access in bushfire prone areas in the planning for bushfire guidelines. Mr Algeri's evidence was that without an appropriate connection, proposed Lots 1 and 2 would effectively be at the head of a 460 metre long cul de sac and proposed Lot 3 would be at the head of a 600 metre cul de sac.
58 The Tribunal, in considering this matter has had close regard to the standards that have been established through the proper processes set out in LPS 4 which have resulted in the adoption of LSP 367. The Tribunal considers it cannot be disputed that a condition addressing constructed road frontage is for a planning purpose. The question is not why the structure plan standards should be imposed, but whether there is any basis for not imposing the standards identified as in the structure plan adopted to guide the subdivision of the site.
59 The Tribunal has concluded from Mr Dooner's evidence, that the Shire, which is the clearing authority for the condition, is conscious of the significance of the vegetation in the road reserve. Condition 9 is, however, directed to establishing a road pattern consistent with the addition of rural residential lots, with removing long culs de sac and with achieving a level of service the local planning authority has planned for residents in this locality.
60 The Tribunal notes that it is open to the applicant to wait until the Shire's works programme includes construction of this section of Bedford Street before contemplating subdivision. The structure plan that enables the subdivision, however, reasonably includes a requirement for the road construction. The Tribunal does not accept that subdivision should be allowed to proceed without the road construction occurring, or that the Shire should alone bear the cost of the road construction at this time so that the subdivision can proceed. The Tribunal has concluded that condition 9 is not so unreasonable in the sense required to be addressed in this test.
61 Again, the finding in Perrymead is relevant. Other land owners will benefit, as pointed out by the applicant, but the Tribunal has not been persuaded that the proposed lots should have a lesser standard of access than that planned for other lots in the locality, as established by LSP 367. The Tribunal has concluded that condition 9 is directly related to the fact of the subdivision.
Whether condition 4 and condition 9 are so unreasonable that no reasonable planning authority could have imposed them
62 The Tribunal has concluded that the respondent, in imposing the conditions under review, other than the specifics of the public access route, has not strayed beyond planning matters found in the relevant planning documents. While the applicant might have disagreed with the conditions, the Tribunal has overall been persuaded the conditions in dispute do mostly have a clear planning basis and are not considered in the planning context to be so unreasonable that no reasonable planning authority could have imposed them.
63 The Tribunal has determined that the application for review should only be allowed in part, with conditions 4 and 9 amended only to the extent concluded in the discussion above.
Orders
1. The application for review of condition 4 is upheld in part. The condition is amended to delete (b) and (c) and to read as follows:
Easement(s) in accordance with sections 195 and 196 of the Land Administration Act 1997 (WA) for the benefit of the Shire of Mundaring are to be placed on the certificate(s) of title of the proposed lot(s) specifying access rights. Notice of this easement(s) is to be included on the diagram or plan of survey (deposited plan). The easement(s) are to state as follows:
(a) a fire service access route.
2. The application for review of condition 9 is upheld in part. Condition 9 as imposed is deleted and replaced with a new condition 9 as follows:
Satisfactory arrangements being made with the local government for half the cost of the construction of Bedford Street in the location as shown on the plan of subdivision to a standard of 5.5 metre asphalt, 1.2 metre gravel shoulders (7.9 metre formation) and open drainage, on an alignment that ensures mature trees are retained if possible.
I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, SENIOR SESSIONAL MEMBER
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