Ouschan and Anor and Western Australian Planning Commission - [2007] WASAT 226

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: OUSCHAN & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 226

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 28-29 AUGUST 2007

DELIVERED : 29 AUGUST 2007

FILE NO/S: DR 243 of 2006

BETWEEN: LORENZ OUSCHAN
ALOISIA OUSCHAN
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning – Subdivision – Review of condition requiring ceding of foreshore land – Whether condition can lawfully be imposed – Whether condition has a planning purpose – Whether condition fairly and reasonably relates to subdivision – Whether condition appropriate and reasonable

Legislation:

Planning and Development Act 2005 (WA), s 238(4), s 251(2)
Shire of Harvey District Town Planning Scheme No 1

Result:

Condition varied to more clearly define area to which it relates

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr MRM Tjhung

Solicitors:

Applicants: Self-represented
Respondent: State Solicitor

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

Newbury District Council v Secretary of State for the Environment [1981] AC 578
Sin‑Aus‑Bel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr and Mrs Ouschan sought review of a condition of subdivision approval that required them to cede a part of their land adjoining Myalup Beach to the local government free of cost and without compensation. The land was zoned and used for tourist purposes. The purpose of the subdivision was to enable the tourist uses to expand.
The issues in the review were whether the condition can be lawfully imposed and whether it is appropriate and reasonable in the circumstances of the case.
Following the hearing, the Tribunal gave an oral decision. The Tribunal determined that the disputed condition can be lawfully imposed provided that it is redrafted to specify with more precision the area concerned. The condition serves planning purposes including providing for public foreshore areas and access to these on the coast, maintaining and enhancing public enjoyment of the coast and supporting public ownership of the coast. The condition fairly and reasonably relates to the subdivision because the subdivision is a step toward the more intensive tourist development of the land. The condition is not relevantly unreasonable.
The Tribunal also determined that a condition requiring the foreshore part of the land to be ceded is appropriate and reasonable in the circumstances of the case having regard to the long-term maintenance of public amenity, use and access to the foreshore and proper and coordinated long-term management and conservation of the foreshore.
The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.

Introduction

Mr and Mrs Ouschan sought review under s 251(2) of the Planning and Development Act 2005 (WA) (PD Act) of one of eight conditions of subdivision approval imposed by the Western Australian Planning Commission (Commission) on the approval of their application for a two-lot subdivision of their land, known as Lot 200 Myalup Beach Road, Myalup (the site).
The site has an area of approximately 5.35 hectares and extends to the primary dune adjacent to Myalup Beach. The site is zoned "Tourist" under the Shire of Harvey District Town Planning Scheme No 1 and comprises 14 chalets with a further six under construction, known as the Indian Ocean Retreat, in the western and southern parts of the site and 135 caravan park sites in the north‑eastern part of the site. The approved subdivision places the chalet development and the caravan park development on separate titles. The condition in dispute, which is condition 1, is in the following terms:
"A foreshore reserve 30 metres in width from the vegetation line as established by survey being shown on the Diagram or Plan of Survey (Deposited Plan) as a "Reserve for Recreation" and vested in the Shire of Harvey under section 20A of the Town Planning and Development Act, such land to be ceded free of cost and without any payment of compensation by the Crown (LG)."
A condition of this type was recommended by the Shire of Harvey (Shire) in its assessment and recommendation in relation to the subdivision application. Mr John O'Hurley, an environmental scientist and town planner and manager of coastal planning with the Department for Planning and Infrastructure, explained that the intention of the condition, although not its clear expression, is to require the ceding of the westernmost approximately 30 metres of the site between a retaining wall constructed by Mr and Mrs Ouschan and its prolongation to the south and the beach reserve to the west.
Immediately adjoining this area, both to the north and to the south, is land owned by the Shire and immediately to the west is the beach which is vested in the Shire, subject to a reserve for public recreation. The area to the immediate north comprises a constructed carpark which extends approximately three to four metres onto the land which is required to be ceded by the disputed condition. The area to the immediate south comprises partially vegetated foreshore dunes. The southern part of the land which is required to be ceded by the disputed condition also comprises partially vegetated foreshore dunes that then continue onto the Council land.
The central part of the land which is required to be ceded by the disputed condition has been levelled and developed by Mr and Mrs Ouschan with sandstone retaining walls and grass. Mr and Mrs Ouschan have also undertaken significant dune earthworks and replanting in the western part of the area and have installed a timber boardwalk through the primary dune to provide pedestrian access to the beach. If one were not aware that the land which is required to be ceded by the disputed condition is private land forming part of the site, one would reasonably think from its location and physical appearance that it forms part of the public foreshore reserve to which the public has a right of access.
The President of the Tribunal has formed the opinion under s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues and has therefore listed the matter for determination by me. It is noted that I undertook a view of the site and of the beach adjacent to the site accompanied by Mr and Mrs Ouschan and Mr Tjhung, counsel for the commission.

Issues

The following two issues arise for determination in this review:
1)Whether the disputed condition can be lawfully imposed; and
2)Whether the disputed condition is appropriate and reasonable in the circumstances of this case.

Can the condition be lawfully imposed?

In Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] 221 CLR 30 at [57], McHugh J in the High Court of Australia endorsed the test for the validity of a condition of planning approval set out by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
"… A condition attached to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it."
I consider that the disputed condition can be lawfully imposed provided that it is redrafted to specify with more precision the area identified by Mr O'Hurley as the area which the condition intends to require.
The condition is for a planning purpose because it is contemplated by s 152 of the PD Act and by the relevant planning framework, most significantly by State Planning Policy 2.6 - State Coastal Planning Policy (SPP 2.6), and gives effect to SPP 2.6. Clause 4 of SPP 2.6 sets out the objectives of the Policy in the following terms:
"•protect, conserve and enhance coastal values, particularly in areas of landscape, nature conservation, indigenous and cultural significance;
•provide for public foreshore areas and access to these on the coast;
•ensure the identification of appropriate areas for the sustainable use of the coast for housing, tourism, recreation, ocean access, maritime industry, commercial and other activities; and
•ensure that the location of coastal facilities and development takes into account coastal processes including erosion, accretion, storm surge, tides, wave conditions, sea level change and biophysical criteria."
Clause 5.1 of SPP 2.6 states that subdivisions relating to the coast should, among other things:
"(ii)Maintain and enhance public enjoyment of the coast where this is consistent with the objectives of this Policy.
(iii)Require the provision of public access to the coast that is consistent with the values and management objectives of the area including, the interests of security, safety and protection of coastal resources, as well as the recreational opportunities, both on and offshore, of that section of coast.
(iv)Support public ownership of the coast, including where appropriate the provision of a coastal foreshore reserve and accommodation of regional and local recreational needs.
…
(vi)Ensure that the identification of land to be set aside for public ownership for conservation, management, public access and recreation, is undertaken during the planning process. Generally this land, from the total setback line seaward, should be given up free of cost at the time of development, subdivision or strata subdivision, over and above the required provision of public open space.
(vii)Support vesting of the coastal foreshore reserve in the relevant local government for the purposes of foreshore management and recreation …"
The planning purposes identified in SPP 2.6 that are served by condition 1 include to provide for public foreshore areas and access to these on the coast, maintain and enhance public enjoyment of the coast and support public ownership of the coast.
The condition fairly and reasonably relates to the subdivision. In Sin‑Aus‑Bel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67 the Tribunal constituted by Deputy President Judge Chaney undertook a review of a condition of subdivision approval in relation to foreshore land on the Swan River which required the ceding of part of the land free of cost and without payment of compensation. At [40] ‑ [41] of the decision, the Tribunal said the following:
"When the proposed amalgamation and subdivision is viewed, as it was by the respondent, in the context of being a step toward the more intensive mixed use development of the subject land, there is no difficulty in accepting the proposition advanced by Mr Stephens, and supported by Mr McMullen and Mr Montgomery, that Condition 1 relates to the proposed amalgamation and subdivision. The question is whether the application should be treated in that context, or whether, as the applicant asserts, the application should be seen as no more than a subdivision which facilitates the ultimate sale of the foreshore reserve to the State, with the future of the balance of the land remaining uncertain.
In my view, the approach taken by the respondent is the correct approach. It is true that the precise form of future development is at present uncertain, given the rejection of the latest proposal for development by the local authority. It is very clear, however, that the application for amalgamation and subdivision arises in the context of the proposed purchase of the land for the purpose of redevelopment. LPS 14 zones the land as 'mixed use'. That zoning permits a discretionary approval of group dwellings, a nursing home, residential buildings and single houses. There is no density code applicable to the mixed use zone. Both the original proposal and the modified proposal submitted by the developers involve a significant intensification of the use of the development lot. It would be unrealistic to conclude that the land will not, in the reasonably near future, be redeveloped in a way which intensifies its use, most likely for residential purposes. It was common ground that the amalgamation and subdivision will facilitate that process."
At [44] of Sin‑Aus‑Bel Pty Ltd and Western Australian Planning Commission the Tribunal said that it is:
"… appropriate to have regard to 'the changes that the subdivision is likely to produce', not by looking no further than the creation of new lot boundaries, but by looking at the proposal in its full context."
At [46] the Tribunal referred to:
"… the principle that it is appropriate and desirable, if not obligatory, for the approving authority to consider a subdivision application in the context of the likely future use of the land."
In this case the subdivision application was submitted under cover of a letter from Koltasz Smith development consultants. The letter stated that the proposed subdivision:
"… will enable both the Indian Ocean Retreat and the Myalup Beach caravan park to expand and cater for changing tourist demands independently of each other while creating two separately commercially viable businesses."
Mr Ouschan indicated that a further 16 chalets will be proposed within the near future. It is also apparent from a foreshore management plan prepared by Mr Peter Driscol for Mr and Mrs Ouschan that they wish to expand the current facilities in other ways, including the development of a restaurant on the site. It is true that Mr and Mrs Ouschan could, with development approval, undertake the expansion of the tourist developments without subdivision of the land, and it is true that they have to an extent already done so. However, having regard to the letter from Koltasz Smith and Mr and Mrs Ouschan's expansion plans, it is clear that the subdivision is a step towards the more intensive tourist development of the land. To borrow Chaney J's words from Sin‑Aus‑Bel Pty Ltd and Western Australian Planning Commission:
"It would be unrealistic to conclude that the land will not, in the reasonably near future, be redeveloped in a way which intensifies its use ..."
As Mr Earl Meredith, a town planner who gave evidence for the Commission, said, the subdivision will promote the intensification of land uses in the locality. Expansion of the tourist development on the site will result in increased demand for pedestrian access to the beach across the land the subject of the disputed condition and across the adjoining carpark, and increased recreational use of the land the subject of the disputed condition and of the beach itself. The restaurant is also likely to result in an attraction of patrons to the foreshore area on and adjoining the site.
I find that there is, therefore, a sufficient nexus between the disputed condition and the subdivision application, viewed as it must be following Sin‑Aus‑Bel Pty Ltd and Western Australian Planning Commission, in the context of the likely future use of the land.
Finally, I consider that the condition is not so unreasonable that no reasonable planning authority could impose it. Indeed, for reasons to which I will come, I think it is reasonable and appropriate in all the circumstances.

Is the condition appropriate and reasonable?

A condition requiring the foreshore part of the site from the constructed retaining wall to the west to be ceded is appropriate and reasonable having regard to the long‑term maintenance of public amenity, use and access to the foreshore and the proper and coordinated long‑term management and conservation of the foreshore.
I accept the following evidence from Mr O'Hurley in relation to public access:
"The condition requiring an extension to the existing foreshore reserve by ceding of 30 metres of land from Lot 200 will provide a more effective and logical 'foreshore reserve' immediately accessible to and useable by the general public (including patrons of the chalet park) as well as providing for public management of a public asset - the coast. Such a 'foreshore reserve' will ensure the land is set aside for public ownership for conservation, management, public access and recreation, and enable the appropriate vesting with the local government for the purposes stated above. In this situation it will result in a tenure arrangement to match the existing physical environment (i.e. public access and parking)."
As noted earlier, part of the public carpark is located on the site. It is plainly both consistent with SPP 2.6 and desirable in terms of orderly planning and development for this area to be ceded to enable long‑term public use and access to this land as a carpark. It is also consistent with SPP 2.6 and desirable in terms of orderly and proper planning and development for the remainder of the land sought to be ceded by the disputed condition to be available for long‑term public amenity, use and access as public land as it is physically contiguous with public land to the north, south and west and has the appearance of public foreshore land.
Mr Ouschan contends that public ownership is unnecessary as he already provides public access and use and will continue to do so. However, future land owners may not be as magnanimous as Mr and Mrs Ouschan. I find that the most appropriate means of ensuring long-term public access to and use of the foreshore in question is by public ownership. In terms of public amenity, I note that Mr and Mrs Ouschan have clearly spent a great deal of money and spent a great deal of their time on developing the land in question and that they contend that it is in their private interest, as well as in the private interest of future owners of the site, to maintain the amenity of the land.
However, as SPP 2.6 recognises, maintenance and enhancement of public enjoyment of the coast is a matter involving public interest, not private interest. It is, I consider, appropriate that the amenity of this section of the foreshore be maintained in a public fashion and in accordance with the amenity of contiguous public land.
I also accept Mr O'Hurley's evidence that proper and orderly long‑term management and conservation of the foreshore is most appropriately achieved by public ownership so that there can be a coordinated public approach to the foreshore. Management and conservation issues and opportunities do not neatly begin and end at cadastral boundaries, particularly where, as in this case, there is a 30 metre long section of private land jutting into what is otherwise a public foreshore. As the Shire of Harvey Coastal Management Plan adopted by the Shire in August 2006 states specifically in relation to Myalup Beach and below a photograph of the site and adjoining land:
"Land tenure over much of the dune system is not conducive to ongoing management. The Shire has limited control over management of privately owned land and relies on the goodwill of the landowner."
I agree with Mr O'Hurley that, if possible, erosion control in particular "should be controlled and facilitated by the government in cooperation with private land owners, not the other way around".
Mr and Mrs Ouschan advanced two further major arguments against the condition. First, they contend, with the support of Mr Driscol, that they should retain ownership and control of the land in question because they have the capacity and interest to manage the land, whereas the Shire has demonstrated a historical inability and lack of resources to do so.

However, SPP 2.6 clearly contemplates that public ownership of the coast is the most appropriate mechanism to achieve its important planning objectives. I accept Mr O'Hurley's evidence that generally public authorities are best placed to manage the coastal environment in the long term. While it is correct, as Mr Driscol said, that the Shire may not allocate appropriate funding and may not succeed in obtaining grants of appropriate funding for coastal management, to find that the imposition of the disputed condition is unreasonable or inappropriate for these reasons would ultimately undermine the efficacy of SPP 2.6 in most areas of the State.
If the Shire does not properly manage the coastal reserve, Mr and Mrs Ouschan's answer lies in the political sphere, not in maintaining the subject land in private hands. Moreover, the Shire has, in Mr O'Hurley's assessment as the manager of coastal development in the Department for Planning and Infrastructure, adopted in recent times a proactive approach to coastal planning consistently with SPP 2.6 by commissioning the Harvey Coastal Management Plan by independent planning consultants. Mr O'Hurley described the Plan as one of the best that he has seen. The Coastal Management Plan contains 15 recommendations for Myalup. According to Mr Meredith, the Shire has allocated $10,000 in its current budget and has employed a natural resources officer to coordinate the implementation of a Coastal Management Plan. Mr Meredith also stated that the Shire has applied for grants to enable it to carry out the work proposed in the Coastal Management Plan.
Mr Driscol considers that the Harvey Coastal Management Plan is generally "very good" but disagrees with its promotion of continuing vehicular access across the land the subject of the disputed condition from the south and criticises it for failing to address the use and development of the foreshore carpark. While Mr Driscol disagrees with aspects of the Shire's Plan, that Plan was the result of a process involving public consultation and was adopted by the Shire. In this regard, although Mr Ouschan observed that he was not directly consulted by the authors of the Plan, it is clear from the document that a process of public consultation did occur. While not formally endorsed by the Department for Planning and Infrastructure or the respondent, the department had a representative on the steering committee who was, on Mr O'Hurley's evidence, satisfied with its final form.
Furthermore, as Mr Tjhung correctly submits, the issues raised by Mr Driscol are "micro issues" or matters of detail. The Harvey Coastal Management Plan may well change in terms of its specific recommendations over time. It is ultimately for the local authority, guided by relevant experts and public submissions, to determine the best way to manage an important public asset in terms of the coast. It must do so necessarily in the public interest and having regard to the overall management objectives for the foreshore. These objectives may or may not directly correspond to the objectives of a particular contiguous land owner.
Mr Driscol's concerns about aspects of the Management Plan do not satisfy me that the condition in dispute is not reasonable.
Second, Mr and Mrs Ouschan contend that the condition is unreasonable because the land in question was rezoned from "Rural" to "Tourist" in 1996. Mr Meredith conceded under questioning by Mr Driscol that the subject foreshore area ought to have been identified and reserved in 1996 and not rezoned "Tourist". He said that if he were considering the rezoning application today, the area in question would not be zoned "Tourist".
I accept that the zoning is a material consideration. However, ultimately I do not consider that in this case the zoning means that the condition is unreasonable for two reasons.
First, the rezoning occurred in 1996, several years before the gazettal of SPP 2.6. While earlier planning documents identified the importance of public ownership of the foreshore to an extent, SPP 2.6 is plainly the most explicit statement of this principle and is the most comprehensive coastal planning policy formulated in this State.
Second, while zoning is important, it can be subject to other environmental planning considerations in certain circumstances such as cultural heritage matters or, in this case, protection from coastal processes. The coastal setback assessment produced by Mr Michael Rogers for Mr and Mrs Ouschan in this case recommends a setback distance to allow for the action of physical coastal processes on the Myalup shoreline of 80 metres. Despite the zoning, therefore, no substantive tourist development is capable in the area which is the subject of the disputed condition.

Conclusion and orders

I therefore consider that a condition of the nature intended by the disputed condition can be lawfully imposed and is appropriate and reasonable in all the circumstances of this case. However, as I suggested during the hearing, the condition should be redrafted so that it more clearly identifies the area to which it applies.
The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.Condition 1 imposed by the respondent on its approval of the subdivision of Lot 200 Myalup Beach Road, Myalup on 18 March 2005 is deleted and replaced with the following condition:
"1.A foreshore reserve approximately 30 metres in width from the eastern edge of the existing retaining wall (and its prolongation to the southern boundary) up to the western boundary of Lot 200 being shown on the Diagram or Plan of Survey (Deposited Plan) as a "Reserve for Recreation" and vested in the Shire of Harvey under section 152 of the Planning and Development Act 2005 (WA), such land to be ceded free of cost and without any payment of compensation by the Crown."
3.The subdivision approval granted on 18 March 2005 shall lapse on 29 August 2010 rather than on 18 March 2008.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER