PARKRIDGE GROUP PTY LTD and SHIRE OF DARDANUP

[2021] WASAT 114

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   PARKRIDGE GROUP PTY LTD and SHIRE OF DARDANUP [2021] WASAT 114

MEMBER:   DR S WILLEY, SENIOR MEMBER

HEARD:   23 JULY 2021

DELIVERED          :   23 JULY 2021

PUBLISHED           :   1 SEPTEMBER 2021

FILE NO/S:   DR 97 of 2021

BETWEEN:   PARKRIDGE GROUP PTY LTD

Applicant

AND

SHIRE OF DARDANUP

Respondent

Catchwords:

Practice and procedure - Town planning - Subdivision - Subdivision conditions - Conditions cleared - Road conditions - Orderly and proper planning - Misconceived application - No reviewable decision

Legislation:

Planning and Development Act 2005 (WA), s 3(1)(b), s 145, s 145(4), s 145(4)(b)(i), s 170, s 170(3), s 170(3)(b), s 170(5), s 251, s 251(5), Pt 10, Pt 14
State Administrative Tribunal Act 2005 (WA), s 47, s 47(2)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	Mr T Saulsman and Mr S McKinley
Respondent	:	Mr M Connell, Ms M Akerman and Ms C Muller

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Erujin Pty Ltd and Western Australian Planning Commission [2021] WASAT 9

Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57; (2017) 93 SR (WA) 1

SAS Global Forrestdale Pty Ltd v Forestdale Developments Pty Ltd [2010] WASC 104

Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196; (2018) 233 LGERA 299

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 23 July 2021.  An oral decision was delivered at the conclusion of the hearing.  The following reasons comprise the reasons that were delivered orally, subject only to minor editing to correct matters of grammar and infelicity of expression).

1. This is an application for review lodged by Parkridge Group Pty Ltd (Parkridge) against the Shire of Dardanup (Shire). 

Background

1. The background to the application is somewhat unusual but arises out of a subdivision approval granted by the Western Australian Planning Commission (WAPC) for Lot 9004 Eaton Drive in Eaton (Land).  The WAPC reference number for the subdivision is 159295 (Approval). 

2. The factual background is not contested.  The WAPC issued the Approval to subdivide the Land on 14 October 2020.  The Approval included condition 4(d), which provided that the subdivider was to provide street trees pursuant to council policy CP061 (CP061) and Liveable Neighbourhoods.  Condition 4(d) was in the following terms:

   Engineering drawings and specifications are to be submitted and approved, and subdivisional works undertaken in accordance with the approved plan of subdivision, engineering drawings and specifications to ensure that:

   …

   (d)street trees are provided in Accordance with [CP061] and Liveable Neighbourhoods.

3. On 4 February 2021, Parkridge sought subdivision clearances from the Shire in relation to the Approval.  On 10 March 2021, the Shire emailed Parkridge to outline that in relation to condition 4(d) the Shire required that Parkridge provide the trees in the street verges in the subdivision as stated in CP061.

4. On 25 March 2021, the Shire emailed Parkridge outlining that for the purposes of condition 4(d) it would accept a contribution of $12,355.20 towards the supply and plantation of verge trees within stages 2A and 2B.  The Shire advised that upon receipt of that contribution, the condition would then be cleared.

5. Edgeloe Engineering, engineering consultants for Parkridge, sent an email to Mr Thurston Saulsman on 11 May 2021 outlining that the Shire required Parkridge to provide street trees.

6. Parkridge informed the Shire that, pursuant to CP061, the Shire was responsible for the provision of street trees.  The Shire responded that it did not agree with Parkridge having regard to the terms of condition 4(d). 

7. Parkridge paid the contribution of $12,355.20 and condition 4 of the Approval was cleared.  The WAPC ultimately endorsed the diagram or plan of survey.

8. It is against that backdrop that Parkridge has lodged the application for review.

Parkridge's application and submissions

1. Parkridge's application is that, in requesting the street tree contribution, the Shire has unlawfully imposed a further condition for the purposes of s 170(3) of the Planning and Development Act 2005 (WA) (PD Act).

2. In its review application, Parkridge seeks for the 'decision to be set aside and the money returned to Parkridge'.

3. Parkridge submits that the Shire read and applied CP061 incorrectly and that it was the Shire who should have provided the street trees.  Nevertheless, the Shire advised that condition 4(d) would not be cleared until Parkridge paid the contribution.

4. Parkridge submits that neither the WAPC nor the Shire has the legal authority to add, remove or vary any condition of the Approval.

5. In requesting the contribution, Parkridge submits that the Shire has relied on the power in s 170(3)(b) of the PD Act. However, s 170(3) is limited to the engineering drawings and specifications submitted by an applicant.

6. A person aggrieved by a requirement under s 170(3) may apply for a review pursuant to Pt 14 of the PD Act under s 170(5) of the PD Act. Parkridge maintains it has a right of review under s 170(5) of the PD Act.

Shire's submissions

1. The Shire submits that condition 4(d) has been cleared and the WAPC has endorsed the Approval. Where the WAPC endorses its approval pursuant to s 145(4)(b)(i) of the PD Act that is evidence from which it can be inferred that the WAPC is satisfied that the relevant conditions have been complied with at the time a certificate of title is created or registered: SAS Global Forrestdale Pty Ltd v Forestdale Developments Pty Ltd [2010] WASC 104 (Le Miere J).

2. Section 251 of the PD Act provides for a right of review of decisions of the WAPC to refuse to endorse its approval on a diagram or plan of survey of subdivision. A decision of the WAPC to endorse (rather than to refuse to endorse) its approval pursuant to s 145(4) of the PD Act is not a decision capable of being reviewed under Pt 14.

3. The Shire submits that there is no reviewable decision that is before the Tribunal and that the application must be dismissed.

Section 170 of the PD Act

1. Section 170 of the PD Act relates to conditions that arise upon the construction of roads, drains and artificial waterways necessitated by the subdivision process. Section 170 requires a subdivider to provide detailed drawings and specifications to a local government to ensure, inter alia, appropriate construction and drainage requirements are met.

2. In such circumstances, a responsible authority is entitled to require further conditions as it sees fit in respect of a proposed road or waterway.  However, such 'further conditions' must be the purposes of ensuring that the construction and drainage of the road or the artificial waterway is consistent with the approval of the WAPC.  In this regard see generally Stream Focus Pty Ltd v City of Armadale [2018] WASCA 196; (2018) 233 LGERA 299 (Buss P, Mitchell JA and Allanson J); and Erujin Pty Ltd and Western Australian Planning Commission [2021] WASAT 9 at [33].

Consideration

1. Having regard to the facts in question, the requirement for a street tree contribution by the Shire falls squarely within the ambit of condition 4(d) of the Approval. It was not a 'further condition' for the purposes of supervising construction of a road, drain or waterway under s 170(3) of the PD Act. The requirement for the street tree contribution does not arise in the context of any construction that is required to effect the subdivision of the Land such as to attract the operation of s 170. It is a simply a requirement to provide street trees.

2. If Parkridge remained of the view that the street tree contribution was not mandated by, or consistent with, condition 4(d) of the Approval or Policy CP061, it was obliged to say so. It could have raised the issue first with the Shire, directly with the WAPC or sought clearance of the subdivision under s 145 of the PD Act or even a review of that condition under s 251(5) of the PD Act.

3. It did none of these things.

4. Rather, Parkridge complied with the condition and was granted clearance by the Shire. On the evidence before me, in my view, the day has long passed where Parkridge has a right of review to the Tribunal of condition 4(d) under the PD Act. It follows that no review right arises to Parkridge under s 170(5) of the PD Act in relation to condition 4(b) of the Approval.

Conclusion

1. No reviewable decision has been made that would ground a right of review. The application is therefore misconceived and will be struck out pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 

2. This application was made under s 170(5) of the PD Act. In my view, even if Parkridge had applied via a more orthodox manner such as, for example, s 251(5) of the PD Act, which allows a review of a subdivision condition to be reviewed at the time of seeking clearance of subdivision conditions, I do not consider that such a review is consistent with the statutory scheme set out in Pt 10 of the PD Act. I also agree with the Shire that a decision by the WAPC to endorse a diagram or plan of survey is not a reviewable decision under Pt 14.

3. Nor is it appropriate, as a matter of orderly and proper planning, for the Tribunal to entertain reviews where the applicant has, in effect, satisfied the condition, had the condition cleared and possibly created the new certificate of titles, to then seek a merits review of that condition on the basis that it should not have been imposed.

4. The express, and implicit, statutory scheme for the subdivision of land, and the creation of new land titles, provided by Pt 10 of the PD Act is that a review against a condition must be made during the subdivision approval and condition clearance process, not after.

5. In my view, Parkridge's application is an abuse of process and is contrary to the efficient management and administration of the planning system in this State and would encourage much litigation after the fruits of the subdivision approval process have been harvested. Parkridge's application is contrary to the objective of the PD Act to provide for an 'efficient and effective land use planning system in the State': s 3(1)(b) of the PD Act.

6. Enabling such merit reviews would bring the administration of the planning system into disrepute and would erode confidence in the integrity of the subdivision process for planning authorities, public utilities and the community generally. 

7. It is relevant to observe that the PD Act gives, in effect, two discrete rights in relation to conditions, as well as further conditions that are imposed pursuant to s 170 of the PD Act: in this regard see generally Niroda Holdings Pty Ltd and Western Australian Planning Commission [2017] WASAT 57; (2017) 93 SR (WA) 1.

8. The statutory scheme of Pt 10 affords subdividers with two express avenues to seek review of conditions that have been imposed on a subdivision approval. However, these reviews to the Tribunal must be made before diagram or plan of survey is endorsed and the new certificates of title created, not after.

9. The application for review is struck out pursuant to s 47 of the SAT Act on the basis that there is no reviewable decision.

Orders

The Tribunal orders:

1.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the proceeding is struck out, as it is misconceived or lacking in substance on the basis that there is no reviewable decision.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR S WILLEY, SENIOR MEMBER

1 SEPTEMBER 2021