| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : PARKRIDGE GROUP PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 113 MEMBER : JUSTICE J A CHANEY (PRESIDENT) MR B HUNT (SENIOR SESSIONAL MEMBER)
HEARD : 28 AND 29 JUNE DELIVERED : 25 JULY 2011 FILE NO/S : DR 231 of 2010 BETWEEN : PARKRIDGE GROUP PTY LTD Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
SHIRE OF HARVEY
SHIRE OF DARDANUP
Interveners
Catchwords: Planning and development - Conditions of subdivision - Condition requiring ceding of land for public open space - Whether public open space already provided in earlier subdivisions - Reserve for recreation - Need for public open space audit - Requirement to contribute to shared costs - Turns on own facts
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Legislation: Planning and Development Act 2005 (WA), s 68(1)(b)
Shire of Dardanup Town Planning Scheme No 3
Shire of Harvey-Dardanup Town Planning Scheme No 1, cl 17.1, cl 19.0 Result: One condition varied in terms agreed by parties
Application otherwise unsuccessful Category: B
Representation: Counsel:
Applicant : Mr M Hardy
Respondent : Ms C Ide and Mr D Jones
Interveners : Mr P Wittkuhn
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Interveners : McLeod & Co
Case(s) referred to in decision(s):
Australian Vanguard Pty Ltd and Western Australian Planning Commission [2009] WASAT 136
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Parkridge Group Pty Ltd sought a review of two conditions of approval of a stage of a large subdivision in Eaton near Bunbury. The first condition challenged was a condition drawn in standard terms requiring 10% of the subject lot area to be ceded free of costs for public open space. The second condition challenged required the applicant to make satisfactory arrangements in relation to developer cost contributions to works, and in particular to the proposed construction of a bridge under the joint Shire of HarveyDardanup Town Planning Scheme No 1. 2 The challenge to the public open space condition was based upon the history of the progressive subdivision, and the amount of land which had already been ceded free of cost in relation to earlier stages of the subdivision. The Tribunal considered the history of subdivisional development of the original lot and against that background, considered the extent to which further land should be ceded free of cost. Whilst it concluded that the condition should be affirmed, the Tribunal noted the unsatisfactory lack of adequate structural planning in relation to public open space and recommended more detailed planning prior to the subdivision of remaining portions of the land. 3 In relation to the second condition, the Tribunal accepted that the condition should be redrawn in terms with which all parties agreed, but that it was not open to the Tribunal to impose as a condition that developer cost contributions be refunded in the event that the contemplated works did not proceed.
The application 4 On 13 May 2010, the Western Australian Planning Commission (WAPC) by application reference No 141716, approved the subdivision of land owned by Parkridge Group Pty Ltd (Parkridge) comprising Lot 9501 on Plan 50198, Peninsular Lakes Drive, Eaton, into 14 lots subject to 10 conditions. 5 Parkridge seeks a review of two of those conditions, being condition 8 and condition 10. Condition 8 provided: 8. The area (s) of land equal to at least 10% of the subject lot in area, in a position to be agreed with the WAPC, being shown on the Deposited Plan as a 'Reserve for Recreation' invested in the Crown under section 152 of the Planning and Development Act 2005, such (Page 4)
land to be ceded free of cost and without any payment of compensation by the Crown. 6 Condition 10 of the approval provided that: 10. The applicant/owner making satisfactory arrangements with the Western Australian Planning Commission for developer costs contributions applicable under the joint Shire of Harvey-Dardanup TPS No 1.
Planning background in relation to condition 8 7 The site originally formed part of Leschenault Location 19 Eaton (Location 19). The land lies within the Shire of Dardanup, and is subject of the Shire of Dardanup Town Planning Scheme No 3 (TPS 3). 8 In December 1991, the Shire resolved to initiate Amendment No 47 to TPS 3, and as a consequence, Location 19 was rezoned from 'General Farming' to 'Residential', 'Residential Development Area', and 'Recreation'. 9 The Scheme Amendment Report stated that residential development of Location 19 'is consistent with a Structure Plan adopted by Council on December 20 1991 for Location 19 and 49 Glen Huon Eaton', a copy of which was said to be attached to the amendment document. The Structure Plan was said to reflect various requirements for the site, including the provision of 10% public open space. In relation to open space, the Scheme Amendment Report stated that floodway and wetland areas required for flooding and environmental reasons were to be excluded from development. In addition, there was to be a requirement to provide a foreshore reserve and public open space. Reference was made to the State Planning Commission (the predecessor to the WAPC) Public Open Space (POS) in Residential Areas Policy which was expressed as follows: The Commission's normal requirement in residential areas is that, where practicable, 10% of the gross subdivisible area be given up free of cost by the subdivider and vested in the Crown under the provisions of Section 20A of the Town Planning and Development Act, as a Reserve for Recreation. In determining the gross subdivisible area, the Commission deducts any land which is surveyed for schools, major regional roads, public utility sites, municipal use sites, or, at its discretion, any other nonresidential use site. 10 That provision is now found in cl 3.1.1 of WAPC Policy DC 2.3. 11 The Scheme Amendment Report continued: (Page 5)
The open space on the Structure Plan consists of a network which connects the schools and commercial areas by linking - • the floodway as a park around the Collie River; • the vegetation buffer for Millars Creek; • the two wetland areas; and • large areas of natural vegetation. In addition, some open space has been provided adjacent to the large recreation area proposed to the west. A pedestrian/cyclist network is provided through this open space network to accommodate such movement and provide access to the schools, commercial and recreational area. The normal requirement is for 10% of subdivisible land be given up as Public Open Space and for a 30m foreshore reserve. Because of the amount of land required for the wetlands, creek and river foreshores and possibly for the floodway, only 10% of the residential and a 30m foreshore reserve land should be given free of cost by the developer and the remainder should be purchased. 12 The Structure Plan referred to in the Scheme Amendment Report is a plan apparently drawn on 11 July 1991 and entitled 'Glen Huon Estate, Eaton' and is referred to as Plan 9. It contains a layout of the major roads, some indication of zonings and residential densities, the location of schools, and areas of public open space which appear to be linked by vegetation belts. The plan lacks fine detail. Table 2 of the Scheme Amendment Report identifies a total POS area of 12.98 hectares in relation to Location 19. A note accompanying Table 2 states that 'Figures are approximate and subject to detailed design'. 13 On 13 October 1993, the respondent (then the Department of Planning and Urban Development) approved the subdivision of Location No 19 into six super lots subject to conditions including a condition 5 that required: The subdivider making arrangements satisfactory to the Local Authority to ensure that potential purchasers of lots 1, 2, 3 and 4 are advised of their obligation to provide a 10% Public Open Space contribution in accordance with the approved Structure Plan. 14 On 3 November 1993, an undertaking was provided by Eaton Developments Pty Ltd (the predecessor of Parkridge) to the Shire that potential purchasers of the super lots would be made aware of 'the (Page 6)
obligation to provide a 10% public open space contribution in accordance with the approved structure plan'. That undertaking was apparently accepted by the Shire. 15 The reference to 'an approved structure plan' in both the approval of 13 October 1993 and the undertaking, is undoubtedly a reference to Plan 9. According to the Scheme Amendment Report, Plan 9 had been 'adopted by Council on December 1991'. It is common ground that no other form of approval of Plan 9 or any other structure plan has been given by the WAPC (or its predecessors), or by the Shire. 16 Thereafter, a number of subdivisional approvals were granted by the respondent over areas of land within the former Location 19. The plans of subdivision in relation to a number of applications for approval identified land, usually described as 'reserve for recreation', which was ultimately ceded free of cost to the respondent. In all but one of the relevant approvals, there was a condition dealing with the requirement to cede land free of cost. In the 11 relevant approvals, different forms of condition relating to the ceding of land appear. For convenience we will refer to the different conditions as Type A, Type B, Type C and Type D. Those conditions read as follows: 17 Type A The proposed reserve(s) shown on the plans submitted by the applicant being shown on the diagram or survey as a 'Reserve for Recreation' and vested in the Crown under s 20A of the Town Planning and Development Act (as amended), such land to be ceded free of cost and without any payment of compensation by the Crown. 18 Type B 10% of the subdivisible land, in a position to be agreed between the subdivider and the Local Government, being shown on the diagram or plan of survey as a 'Reserve for Recreation' and vested in the Crown under section s 20A of the Town Planning and Development Act, such land to be ceded free of cost and without payment of compensation by the Crown. 19 Type C The proposed foreshore reserve(s) shown on the plans submitted by the applicant, being shown on the diagram or plan of survey as a 'public open space' and vested in the Crown under section 20A of the Town Planning and Development Act, such land to be ceded free of costs and without payment of costs by the Crown. (Page 7)
20 Type D The proposed public open space shown on the plans submitted by the applicant being shown on the diagram or plan of survey as a 'reserve for recreation' and vested in the Crown under section 20A of the Town Planning and Development Act, such land to be ceded free of costs and without payment of compensation by the Crown. 21 The details of the different approvals, the amount of the land ceded free of cost, and the type of condition applicable to the approval is set out in the following table:
| Date of Approval | Description of ceded land and cross reference to plan document | Ceded area (according to plan) | Respondent's Subdivision approval number and gross subdivisible area | Corresponding condition of Respondent's subdivision approval dealing with ceded land | Type of Condition | Percentage of gross subdivisible area ceded free of costs | Document reference in Applicant's section 24 bundle | | 27/8/93 | Lot 5786 (Reserve 44580), Sindhi Close Plan ref: (v) | 1,6975ha | 89548 4.9173ha | 17 | A | 34.52% | 16 | | 24/8/95 | Lot 4 (Reserve 45531), Eaton Drive Plan ref: (iii) | 0.9729ha | 97513 9.0144ha | 19 | A | 10.78% | 18 | | 24/8/95 | Lot 19 (Reserve 45358), Recreation Drive Plan ref (iv) | 2.5744ha | 97513 12.1412ha | 19 | A | 21.2% | 17 | (Page 8)
| 17/9/96 | Lot 5820 (Reserve 45333), Shetland Place Plan ref: (iv) | 0.4169ha | 101406 4.952ha | None | None | 8.42% | 15 | | 30/11/98 | Lot 6060 (Reserve 46255), Eaton Drive Plan ref: (viii) | 0.1936ha | 108130 | 16 | A | 3.90% | 20 | | 10/3/99 | Lot 1028 (Reserve 48392), Cleveland Bay Avenue Plan ref: (ii) | 2.7625ha | 108764 7.283ha | 19 | B | 37.93% | 19 | | 30/8/04 | Lot 890 Cleveland Bay Avenue Plan Ref: (xii) | 0.0739ha | 125521 1,4237ha | 11 | A | 5.19% | 21 | | 3/12/04 | Cleveland Bay Avenue Plan ref: (xi) | 0.3310ha | 126335 2.2365ha | 25 | C | 15% | 23 | | 5/5/05 | Lot 874 (Reserve 48933), Ryeland Avenue Plan ref; (i) | 2.3695ha | 127566 13.5692ha | 12 | B | 17.46% | 25 | (Page 9)
| 5/5/05 | Lot 875 (Reserve 48870), Peninsula Road Plan ref: (vii) | 0.1451ha | 127566 13.5692ha | 12 | B | 1.07% | 25 | | 2005 | Lot 6060 (Reserve 46255), Eaton Drive Plan ref: (vii) | 0.1936ha | 127984 Approx. 4.966ha | 11 | B | 3.90% | 20 | | Total area of ceded land | 11.8879ha | The applicant's contentions 22 The applicant's position is that all of the land ceded free of costs should be taken as being open space for the purpose of satisfying the overall requirement to cede 12.98 hectares of the overall subdivisible area of Location 19 as contemplated in Table 2 of the Scheme Amendment Report (which was, in turn, based upon the Structure Plan). Its position is that the provision of reserves for recreation has followed the Structure Plan, or more particularly, a plan prepared in October 1999 which was referred to at the hearing as 'TS4'. Mr Saulsman, the principal of Parkridge who gave evidence, considered TS4 to represent the basis upon which both he and the Shire had proceeded in identifying and agreeing upon areas of public open space progressively through the subdivision of land comprising the former Location 19. 23 The shortfall in the provision of open space, according to the applicant, is the difference between 12.98 hectares and 11.8879 hectares (being the total area ceded to date), namely 1,0921 hectares. The total area of lot 9501, being the subject site to which condition 8 applies, is 4.7047 hectares. Condition 8 would therefore require that an area of 0.47047 hectares be ceded (or a cash in lieu payment being made based on the value of that area of land). (Page 10)
24 Mr Matthew Cuthbert, a senior project planner employed by the WAPC, has assessed the POS requirement at 13.2378 hectares based on the subdivisible area of the former Location 19 as it has developed, rather than the 12.98 hectares originally estimated in Table 2. An earlier assessment by the WAPC put the POS requirement at 13.2513 hectares. The applicant did not take issue with an assessment of the total requirement at 13.2513 hectares so that if full credit is given for the land ceded so far, the shortfall would be 1.3634 hectares. 25 It can be seen, therefore, that if condition 8 remained in its present terms, the area of land which would be required to be ceded would not bring the total of the land ceded above the total requirement for POS contributions over the whole of the former Location 19. 26 There remains, however, some 33 hectares of the former Location 19 yet to be subdivided. The applicant's concern is that if, as has occurred in this case, a standard condition requiring 10% of the subdivided land is attached to each future subdivision, the total area of land ultimately ceded would be well in excess of the 13.2513 hectares which should have been required. 27 To avoid that eventuality, the applicant seeks to substitute condition 8 with a condition in the following terms: An area of land equal to 10% of public open space is required to be surrendered for the balance of the whole of the former Location 19 namely 1.0921 hectares in a location to be agreed with the Shire. 28 The intent of that condition is that when all the land in the former Location 19 is subdivided, the total of the land area ceded will total 12.98 hectares as contemplated in the Scheme Amendment Report. Although the figure of 1.0921 hectares was suggested in the condition as formulated by the applicant, it was clear in the hearing that it would accept the figure of 1.3634 hectares being specified as the total remaining POS contribution over the balance of the former Location 19.
The respondent's position 29 The respondent does not contest the principle that the total liability for land to be ceded free of costs for a public open space should represent 10% of the net subdivisible area of former Location 19. The point of departure is that the WAPC does not accept that all of the land ceded to date has been ceded as POS, or can be considered to meet the requirements for POS for the purposes of the WAPC Development and Control Policy 2.3. Rather, the respondent has carried out a 'POS audit' (Page 11)
applying the methodology contained in DC 2.3. When that methodology is applied, as Mr Cuthbert contends it was in his POS audit, a shortfall of at least 4.9009 hectares of POS is found when comparing the total true POS given up to date against the total requirement over the whole of the area of former Location 19. By way of example, Mr Cuthbert describes Reserve 48933 (created by approval No 127566 on 5 May 2005) as a wet area which is effectively a lake, and constitutes a foreshore reserve under the terms of cl 3.2.1 of DC 2.3. He therefore contends that of the total area of the reserve, being of 2.3695 hectares, only 1.6195 hectares can be considered to be POS once the drainage basin or lake is excluded. 30 Similarly, Reserve 48392 (created by the respondent's subdivision No 108764 on 10 March 1999) is said by Mr Cuthbert to contain EPP wetlands surrounded with dense vegetation. He considers the majority of the reserve to be foreshore reserve and has therefore excluded the area of the wetlands from the POS calculations for the purposes of his audit. 31 Similar observations are made in respect of a number of other reserves, and it is not necessary to traverse all of Mr Cuthbert's assessments of those areas.
The preferred approach 32 It is not appropriate for the Tribunal to finally fix upon the precise area which should be considered as POS for the purposes of satisfaction of the requirement to cede POS. For the purposes of the present proceedings, it is sufficient to say that we prefer, in principle, the approach of the WAPC to that question. 33 We are not satisfied that the areas of land to be ceded as POS can be satisfactorily identified from the original Structure Plan, Plan 9. The Plan lacks sufficient detail for that purpose. The status of Plan 9 as a planning instrument is unclear. 34 The applicant relies on the terms of the Scheme Amendment Report, and its reference to the adopted Structure Plan, as establishing the location of POS requirements. It is clear, however, that the requirement for 10% of subdivisible land for POS was not contemplated to include wetlands, creek and river foreshores and the floodway. The passage of the Scheme Amendment Report set at above at [11], clearly contemplates that the POS contribution would be over and above the land required for those purposes. That approach is consistent with the present policy found in DC 2.3 at cl 3.2.1. It is quite apparent, from the photographs of various (Page 12)
areas of land which have been ceded in earlier subdivisions, that Mr Cuthbert's assessment of those reserves as wetlands and foreshores should generally be accepted. Having said that, we do not consider that the Tribunal is in a position to identify the precise areas which should be allowed as POS or alternatively the areas which should be excluded from POS. That is a matter which should be attended to by a process of cooperative POS audit carried out by the applicant, the WAPC and, if appropriate, the Shire. 35 In essence, therefore, we do not consider that all of the areas that have been ceded in the different stages of the subdivision of former Location 19 should be treated as satisfying the requirements for POS. The mere labelling of the areas as 'reserve for recreation' does not determine whether the land has been ceded as part of the 10% open space requirement or as part of a requirement relating to wetlands, forests or drainage. It is somewhat unsatisfactory that no adequate structural planning has occurred in relation to the overall requirement for public open space in the former Location 19. Given that a substantial area remains to be subdivided, it is desirable that the relevant parties establish a clear plan for open space to be provided in the balance of the land. That should be done at the same time as an audit of the extent of public open space ceded to date is finalised and agreed. We note that the applicant has been requested to undertake an audit on occasions in the past. It is desirable that it engages with the WAPC and the Shires to resolve this issue in advance of further applications for subdivision being made. 36 In the circumstances, there is no sensible basis to do other than to affirm condition 8. A process of proper structural planning in relation to the balance of the land to be subdivided, and an agreed audit of POS ceded to date, should produce a figure for the remaining area of land required to be ceded for POS somewhere between the figures propounded by each of the applicant and the Commission. No prejudice exists therefore in the applicant contributing 10% of the land subject of the present application to POS, and having that contribution credited against the overall POS ceded over the total area of the former Location 19.
Condition 10 37 Condition 10 requires the applicant to make satisfactory arrangements with the WAPC for developer cost contributions which are applicable under the joint Shire of Harvey-Dardanup Town Planning Scheme No 1 (TPS 1 or Scheme). 38 TPS 1 has as its objects, relevantly: (Page 13)
• provision for the construction of new roads and of a new bridge over the Collie River;
• making provision for the equitable sharing and apportionment of shared costs between subdividing owners within the scheme area; and
• making provision for the respective rights and obligations of land owners and the two shires.
39 It provides a mechanism for calculation of the apportionment of shared costs between subdividing owners within the scheme area. A very significant component of the shared costs is the cost of the proposed bridge over the Collie River. The Tribunal has previously been called upon to determine the proper construction of the provisions relating to the apportionment of shared costs under TPS 1 - see Australian Vanguard Pty Ltd and Western Australian Planning Commission [2009] WASAT 136 (Vanguard). 40 Clause 17.1 of TPS 1 requires each owner of land, prior to endorsement of the final approval of the WAPC to a subdivision, to pay to the Shires the owner's proportion of the shared costs on a proportionate basis. Condition 10 does no more than reflect that obligation which arises by virtue of cl 17.1 of TPS 1. That obligation is a statutory one - see Planning and Development Act 2005 (WA) s 68(1)(b). Thus, condition 10 is not the source of any obligation to make payments. 41 The principal concern of the applicant in relation to the payment of shared costs is that the proposed Collie River Bridge may never be constructed. That concern arises because there will be a substantial shortfall between the presently estimated costs of the bridge, and the amount that will be available from developer contributions to fund its construction. It is not an issue that the present estimated shortfall between contributions and the cost of the bridge is in the range of $20 million to $21 million dollars. Nor is it an issue that an approach to the Federal Government for funding for the bridge has been rejected, or that, unless a government grant of some kind were obtained, the Shires would find it very difficult to fund the construction of the bridge. It remains, however, the intention of the Shires to construct the bridge, which is seen as an important aspect of the planning for the area. 42 The difficulty for the applicant in the present proceedings is that, simply removing condition 10 would not alter its obligation to contribute to the shared costs in accordance with TPS 1. Prior to the hearing, it was not apparent whether the applicant simply wished to have condition 10 (Page 14)
deleted, or whether it proposed that some alternatively worded condition should be imposed. During the course of the hearing, the following condition was proposed by the applicant in substitution for condition 10: The subdivider paying to the Shire of Dardanup, prior to the endorsement of final approval by the Commission, a proportion of the Shared Costs determined according to the then current Schedule of Shared Costs maintained in accordance with clause 18 of the Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme No 1 ('the Scheme'), the proportion being calculated as the net subdividable area of the subdivision divided by the applicable total net subdividable area specified in Schedules 3 or 4 of the Scheme and so that the amount so calculated does not have the effect of requiring payment of any shortfall claimed to relate to any earlier subdivision. In the event that the Shire of Dardanup does not resolve to commence the construction of the Collie River Bridge prior to 31 December 2018, the Shire shall refund the contribution, together with pro rated interest on that contribution, to the subdivider. 43 The first sentence of the proposed new condition reflects the approach to the calculation of shared costs which was determined as appropriate by the Tribunal in Vanguard. Both the respondent and the interveners advised the Tribunal that they had no difficulty with condition 10 being redrawn in terms of the first sentence of the proposed condition, since it reflected the approach which they acknowledged needed to be taken in accordance with the decision in Vanguard. The issue, therefore, was whether the second sentence of the proposed condition is appropriate. 44 Counsel for the applicants acknowledged that, were the requirement to refund the contribution imposed in relation to this subdivision, it would not affect any other contribution made by this applicant, or any other owner within the scheme area, previously made towards the shared costs. In other words, the applicant would receive its contribution in relation to this subdivision, thus reducing the amount of the fund held by the Shires towards the shared costs. There would exist no obligation on the Shires to refund any other owner for previous contributions. The shortfall between the money in hand, and the cost of the bridge, would thus increase. If, as is likely, the Shires still proposed to construct the bridge at some time after December 2018, the object of equitable sharing and apportionment of shared costs between subdividing owners to which TPS 1 is directed would be adversely affected, if not defeated. 45 As already noted, the obligation to contribute to shared costs arises by virtue of TPS 1. It is TPS 1 which determines how the funds collected are to be dealt with - see cl 19.0. Any alteration to those requirements, (Page 15)
which have the force of statute, are appropriately dealt with by way of amendment to the Scheme. Even if it is accepted that there is some uncertainty as to when, or possibly even whether, the bridge is eventually constructed, it is not open to alter the effect of the Scheme by way of a condition of subdivision. Even if such a condition could, in effect, vary the provisions of TPS 1 (which is at best extremely doubtful) it would not be consistent with orderly and proper planning to interfere with the objects of the Scheme by introduction of an ad hoc arrangement in relation to a particular subdivision based upon a relatively arbitrary choice of a date before which construction of the bridge was to commence. 46 Accordingly, the last sentence of the proposed new condition 10 is inappropriate and the proposal to vary the condition to include that sentence is rejected.
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Orders 1. The application for review in so far as it relates to condition8 of the approval of subdivision dated 13May2010 is dismissed. 2. The application for review so far as it relates to condition10 is allowed. Condition10 is deleted and replaced with the following condition: The subdivider paying to the Shire of Dardanup, prior to the endorsement of final approval by the Commission, a proportion of the Shared Costs determined according to the then current Schedule of Shared Costs maintained in accordance with clause 18 of the Shire of Harvey and Shire of Dardanup Joint Town Planning Scheme No 1 ('the Scheme'), the proportion being calculated as the net subdividable area of the subdivision divided by the applicable total net subdividable area specified in Schedules 3 or 4 of the Scheme and so that the amount so calculated does not have the effect of requiring payment of any shortfall claimed to relate to any earlier subdivision. |