Pearl Bay Enterprises Pty Ltd and Shire Of Harvey - [2007] WASAT 68

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PEARL BAY ENTERPRISES PTY LTD and SHIRE OF HARVEY [2007] WASAT 68

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)

HEARD: 15 MARCH 2007

DELIVERED : 23 MARCH 2007

FILE NO/S: DR 447 of 2006

BETWEEN: PEARL BAY ENTERPRISES PTY LTD
Applicant
AND
SHIRE OF HARVEY
Respondent

Catchwords:

Town planning - Condition of development approval for 71 short stay accommodation units and associated amenities requiring the development to be connected to the Water Corporation sewer at the property boundary and advising the developer that a private connection is not acceptable - Applicant seeks substitution of condition requiring the developer to construct a private sewerage pumping station on site and a private sewerage main for distance of 470 metres under public roads to connect to a Water Corporation pumping station and to enter into an agreement requiring it and its successors to indemnify the Shire and maintain insurance to cover the indemnity - Whether land to which the development application relates includes the roads in which private sewerage main is proposed to be located - Whether Tribunal should give owner's consent to the making of the development application in respect of the roads - Whether granting development approval for or imposing a condition requiring the construction of the private sewerage main in the roads would be futile - Whether condition imposed by Shire is invalid - Likely practical consequence of condition is that applicant must prefund public sewerage pumping station to cater for wider catchment and recoup cost not attributable to its development from Water Corporation over time - Whether condition significantly alters development applied for - Whether condition has requisite nexus to proposed development - Whether condition which precludes private sewerage connection has a planning purpose - Whether condition is an impermissible fetter on subsequent administrative decision - Whether condition imposed by Shire is unreasonable - Whether alternative condition proposed by applicant is consistent with orderly and proper planning of the locality - Unreasonable enforcement burden

Legislation:

Land Administration Act 1997 (WA), s 7(1), s 7(4), s 18, s 55, s 55(2)
Local Government Act 1995 (WA), s 3.18(1)
Planning and Development Act 2005 (WA), s 252(1)
Shire of Harvey District Planning Scheme No 1, cl 2.1.1, cl 2.1.2, cl 2.2.1, cl 2.2.2, cl 2.4.2, Sch 10

Result:

Application for review dismissed
Decision of respondent to grant conditional development approval varied by deleting condition (b) and by inserting in its place:
"The development shall be connected to the Water Corporation sewer."

Category: B

Representation:

Counsel:

Applicant: Mr MA Etherington
Respondent: Ms EM Stevenson

Solicitors:

Applicant: Minter Ellison
Respondent: McLeods

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

Adbooth Pty Ltd and City of Perth [2006] WASAT 343
Congregation of the Church of Jesus Christ of Latterday Saints v Shire of Wanneroo (Unreported, Town Planning Appeal Tribunal of Western Australia; Appeal No 4 of 1979; delivered 28 February 1980)
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Shire granted development approval for 71 short stay accommodation units and associated facilities at a former caravan park site subject to conditions. One of the conditions required the connection of the development to the public sewer at the property boundary and advised the developer that a private connection is not acceptable.
The developer sought review of this condition and proposed an alternative condition requiring the connection of the development to the public sewer via a private sewerage pumping station on site and a private sewerage main within public road reserves of a distance of 470 metres. The developer also proposed conditions requiring it to provide a $10 000 bond for 10 years to the Shire for the maintenance, upgrading or replacement of the private sewerage facilities and to enter into a legal agreement with the Shire to ensure that it and its successors in title indemnify the Shire for the maintenance, upgrading or replacement of the infrastructure and maintain insurance in this regard.
The developer argued that the Shire's condition could not be lawfully imposed and was, in any case, unreasonable. It contended that, as a practical matter, compliance with the condition would require it to pre‑fund the construction of a public sewerage pumping station with capacity to cater not only for its development, but also for the wider sewerage catchment, cede land, free of cost, for the pumping station and give up two units because of the additional space required to cater for the wider catchment.
The evidence did not permit a finding to be made that compliance with the condition would require the developer to give up land, because an off site location for the pumping station may be secured, or that two units would be lost, as the location of the pumping station is unknown. It was common ground that, under current Water Corporation provisions, compliance with the condition would require pre‑funding a larger pumping station than would be required to cater simply for the development. However, it was also common ground that the developer would be reimbursed over time.
The cost of compliance with the Shire's condition was estimated by an officer of the Water Corporation to be in the vicinity of $500 000 to $750 000, although this figure involved speculation and was heavily dependent upon further site investigations. The cost of compliance with the developer's alternative condition was approximately $130 000, excluding fees and traffic management.
The Tribunal determined that the Shire's condition could be lawfully imposed. In particular, the condition:
•would not significantly alter the development in respect of which the application was made or leave open the possibility that it will be significantly different;
•does not seek to fulfil a public need the existence of which bears no relationship with the development, because the developer is likely to recoup the costs of prefunding; and
•has a proper planning purpose.
The Tribunal also determined that the Shire's condition is reasonable and appropriate, given the scale and value of the development.
Finally, the Tribunal determined that the applicant's alternative condition is not appropriate as it would be contrary to the orderly and proper planning of the locality. In particular, the condition:
•would give rise to an unreasonable enforcement burden on the Shire in ensuring the execution of deeds by land owners and the maintenance of insurance;
•would cast primary responsibility for maintenance and repair of the sewerage main on the Shire, which is not the sewerage authority for the district; and
•may frustrate the provision of future public sewerage infrastructure.

Introduction

These proceedings involve an application brought by Pearl Bay Enterprises Pty Ltd (applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Shire of Harvey (Shire or Council) to grant conditional development approval for the redevelopment of the Binningup Caravan Park at No 31 (Lot 70) Portland Drive, Binningup (site). The approved development includes 71 short stay accommodation units, a central amenities building, food and beverage facility, manager's residence and swimming pool.
The site has an area of 1.9368 hectares. It is largely surrounded by land zoned and developed for residential purposes. Neither the site nor the surrounding properties have deep sewer connection.

Wastewater infrastructure in the locality

The wastewater authority within the Shire's local government area is the Water Corporation. Wastewater infrastructure in Binningup consists of two wastewater pumping stations and associated sewerage reticulation mains within their respective catchment areas. An existing Water Corporation sewerage main is located in Portland Drive, a short distance from the south-eastern corner of the site.
However, according to the evidence of Mr Garry Crowd, who is a civil engineer employed by the Water Corporation as its Team Leader, Property Services, South-west Region, and who gave evidence on behalf of the applicant, the site cannot be connected directly, by gravity flow, to the nearby sewerage main, because the main is under pumped pressure. Under current Water Corporation policies and design standards, the site can only be connected to the Water Corporation waste water system through the construction of a Water Corporation owned and operated wastewater pumping station or a private pumping station and sewerage main connecting to an existing Water Corporation pumping station. The closest Water Corporation owned and operated wastewater pumping station to the site is the Binningup Road wastewater pumping station at Lot 244 Binningup Road. The Binningup Road wastewater pumping station is located approximately 470 metres from the site along Portland Drive and Binningup Road.

Condition in question

The application for review seeks the deletion and replacement of condition (b) of the development approval which was granted on 28 November 2006. Condition (b) states as follows:
"The development being connected to the Hon. Minister's [sic] Sewer at the property boundary lines, and the developer being advised that a private connection is not acceptable."
During the hearing, Ms EM Stevenson, counsel for the Shire, indicated that the advice expressed in the second part of condition (b) was given by the Council to the applicant not strictly as a matter of planning consideration, but rather in its capacity as the authority having the care, control and management of roads within its district: see s 55(2) of the LandAdministration Act 1997 (WA) (LA Act). Ms Stevenson indicated that the Shire would accept the deletion of the condition and its replacement with the following:
"The development shall be connected to the Water Corporation sewer."
Mr Crowd gave evidence that, in order to fulfil condition (b), the applicant would be required to fund the following works required by the Water Corporation:
•the construction of a Water Corporation pumping station in a location acceptable to the Water Corporation; and
•the connection of the internal waste water pipes to the pumping station and the connection of the pumping station, via a pressure main, to the existing pressure main in Portland Drive.
In its application for review to the Tribunal, the applicant sought the substitution of the following conditions in place of condition (b):
"(a)The developer construct and connect to the Minister's sewer a private pumping station and sewer main to the reasonable satisfaction of the Shire in accordance with the engineering plan and to the requirements of the Water Corporation.
(b)The developer provides to the Shire an amount of $10 000:
(i)to be held by the Shire for a period of up to but not exceeding 10 years in a separate interest bearing trust fund in accordance with Part VI of the Local Government Act 1995 (WA) and to be applied by the Shire during that period against any liability that the Shire may incur for the maintenance, upgrading and replacement of any or all of the private pumping station and private sewerage main or connection of the private sewerage main to the Minister's sewer as depicted in the engineering plan; and
(ii)the remainder of which (including all interest accrued) is to be returned to the developer immediately prior to the expiry of the period of 10 years from the date on which the amount of $10 000 is provided by the developer to the Shire.
(c)The developer is to enter into a legal agreement with the Shire for the purpose of requiring the developer and subsequently its successors in title to:
(i)indemnify the Shire for any cost, expense or liability of the Shire to pay compensation or damages to any third party that may arise from the operation, failure, malfunction or breakdown of any part of the private pumping station and private sewerage main that is depicted in the engineering plan entitled [sic] and located on that portion of the land comprising the road reservation;
(ii)obtain and keep current a suitable policy of insurance to cover the indemnity described in subparagraph (i) above; and
(iii)to require as a precondition the sale of land or any part of the land comprising the private pumping station and private sewerage main (that is depicted in the engineering plan) that purchaser of that land enter into a deed in identical terms to the legal agreement required by this condition (with any necessary alterations to reflect the proper identities of the parties and their successors in title)."
During the hearing, Mr MA Etherington, counsel for the applicant, indicated that his client would be content for these proposed alternative conditions to be amended so as to require the developer and its successors in title to indemnify the Shire in perpetuity for maintenance, upgrading and replacement of the private sewerage facilities and to specifically require the strata company which will be created upon the registration of the strata plan of the development to enter into a deed with the Shire before the applicant sells any of the strata lots within the development.
The applicant's proposed condition (a) would require it to construct a private sewerage pumping station, which would be located at the southeastern corner of the site, and a private sewerage main from the private pumping station to the Water Corporation wastewater pumping station at Lot 244 Binningup Road, along a 470 metre stretch of Portland Drive and Binningup Road. The private sewerage main would follow the alignment of the Water Corporation sewerage main.
Mr Blair Lunt, a town planner who gave evidence on behalf of the applicant, indicated that the cost of carrying out the works required by the applicant's alternative condition (a) is in the vicinity of $130 000, excluding fees and traffic management. In contrast, Mr Lunt indicated that he understands from discussions with Mr Crowd that the cost of compliance with the Shire's condition (b) "is in the vicinity of $500 000 to $750 000". However, he said that "this figure is heavily dependent upon further site investigations". Mr Crowd did not express an opinion in his evidence as to the cost of compliance with the Shire's condition (b).
There is clearly considerable speculation in the estimated cost of compliance with condition (b) related by Mr Lunt. Particularly given his reasonable concession that the figure is heavily dependent upon further site investigations, the estimate of $500 000 to $750 000 is to be treated with caution. One reason why the cost of compliance with the Shire's condition (b) is likely to be greater than the cost of compliance with the applicant's proposed condition (a) is that, in accordance with its usual practice, the Water Corporation is likely to require the applicant to pre‑fund a pumping station which can cater for the whole of the catchment, not just the development site. However, it is also the Water Corporation's usual practice to include in an agreement with a developer, who is required to pre‑fund a facility that can cater for a greater need than that generated by its development, a periodical refund to the developer of the capital expense.
Mr Crowd also indicated that, in order to fulfil the Shire's condition (b), the applicant may need to negotiate a land transfer, free of cost, to the Water Corporation for the pumping station site, unless an appropriate off site location can be secured. Mr Crowd said that this is normal practice in developments such as that which is the subject of the review. However, he said that the Water Corporation "has not made a determination in this case due to the preliminary nature of discussion and unknown location for the pumping station site". It is possible that the pumping station that would be required by the Water Corporation in order for the applicant to comply with the Shire's condition (b) would not be located within the site and consequently that the applicant may not be required to give up any of its land.
Mr Lunt said that if part of the site was ceded free of cost to the Water Corporation in order to construct a Water Corporation pumping station on the site, then it would be necessary for the applicant to delete block "S" within the development which comprises two units. However, based on Mr Crowd's evidence, it is speculative as to whether the applicant would be required to cede land. Further, given that Mr Crowd said that the location of the pumping station that would be required to comply with the Shire's condition (b) is unknown and that the discussion in relation to location is at a preliminary stage, it cannot be concluded that it would be necessary for the applicant to delete any units from the approved development in order to comply with the Shire's condition.

Issues for determination

The parties identified the following issues for determination in the review:
1)Whether a condition requiring the disposal of wastewater generated by the development through the Water Corporation sewer is appropriate.
2)Whether the land to which the development application relates includes the roads in which the applicant proposes to locate the private sewerage main.
3)If the answer to 2 is "yes", whether the Tribunal should give owner's consent to the making of the development application in respect of the roads.
4)Whether granting development approval for or imposing a condition requiring the construction of a private sewer main in the roads would be futile.
5)Whether the condition imposed by the Shire is appropriate.
6)Whether the alternative conditions proposed by the applicant are appropriate.
The Tribunal will address each of these issues in turn.

Is disposal of wastewater via the Water Corporation sewer appropriate?

Each party agreed that the scale and nature of the development warrants the imposition of a condition requiring the disposal of wastewater generated at the site via the Water Corporation sewer. It is not appropriate to continue using the septic tank system which serves the caravan park.
However, whereas the Shire considers that the development should connect to the Water Corporation sewer via public infrastructure in the form of a pumping station and connection main, the applicant contends that the connection should be via a private pumping station located on the site and a private sewerage main under Portland Drive and Binningup Road.

Does the development application include a private sewer main under the roads?

The applicant contends that, as a matter of fact and law, the development application sought development approval for a private pumping station on the site and a private sewerage main within the Portland Drive and Binningup Road road reserves. In contrast, the Shire contends that the development application does not include the private sewerage main proposed within the road reserves.
Before embarking on a consideration of this issue, it should be noted that, even if it is decided against the applicant, that decision does not obviate the need to determine issues 4, 5 and 6. Even if the applicant has not made a development application for the private sewerage main within the road reserves, and consequently development approval cannot be granted for that facility in these proceedings, as appropriate sewerage disposal from the short stay accommodation development is essential in order to carry out the development and therefore the method of sewerage disposal can be conditioned in these proceedings. If the applicant's proposed alternative conditions to the Shire's condition (b) are appropriate, and the Shire's condition cannot or should not be imposed, then the development approval can be conditioned so as to require the construction of a private sewerage pumping station and sewerage main in order to carry out the approved development, even though a further development approval would be required to authorise the construction of the sewerage facilities.

Clause 2.1.1 of the Shire of Harvey District Planning Scheme No 1 (DPS 1 or Scheme) states that, except as provided in cl 2.1.2, "no development shall be carried out on land within the Scheme area without the prior consent of the Council". Clause 2.1.2 provides that the requirements for development consent do not apply in circumstances including "the carrying out of any works on, in, over or under a street or road by a Public Authority acting pursuant to the provisions of any Act". The term "Public Authority" is defined for the purposes of the Scheme as having the meaning given to it in the PD Act. The definition in the PD Act would include the Shire and the Water Corporation.
Clause 2.2.1 of the Scheme provides that a development application "shall be made in the form prescribed in Schedule 10 to the Scheme and shall be accompanied by such plans and other information as is required by the Scheme". The form in Sch 10 requires a description of the land which is the subject of the development application and the owner's signature. Clause 2.2.2 provides that, unless Council waives any particular requirement, every application for development consent shall be accompanied by, among other things, a plan or plans showing street names, lot numbers, north point and the dimensions of the site and the location and proposed use of any buildings proposed to be erected on the site.
The development application in this case was made in the form prescribed in Sch 10 and incorporates a letter from Mr Lunt, two hand drawn plans by Wood & Grieve Engineers and a site plan drawn by Rapley Wilkinson. The development application form is dated 7 August 2006, contains two signatures next to the words "Owner's Signature" also dated 7 August 2006 and was received by the Shire on 11 August 2006. Although the development application form itself does not provide a description of the land, the first paragraph of the letter from Mr Lunt identifies the land as the site. The second paragraph of the letter indicates that the total area of the site is 1.9368 hectares, which is the area of the applicant's land.
It appears that on 5 September 2006, the Shire sought advice from the Water Corporation in relation to the development application. The Water Corporation's letter in response written by Mr Crowd, dated 11 September 2006, noted that "the application is silent on water supply and wastewater aspects" and proceeded to provide comments, including the following:
"The development site is remote from existing wastewater infrastructure in Binningup, with the nearest reticulation mains being in Binningup Road adjacent to the Binningup Road wastewater pumping station. Should the development require connection to the sewerage scheme, as is our recommendation, then the most cost effective option will most likely be the use of a private pumping station operated by the property owner with a pressure main feeding to our wastewater main in Binningup Road."
Contrary to Mr Crowd's letter, there is, in fact, one reference to wastewater in the development application submitted on 11 August 2006, namely, an indication on the site plan of a "proposed underground sewer pumping station" in the south-eastern corner of the site. However, the site plan does not state that the proposed pumping station is private and does not show a sewerage main in the Portland Drive road reserve.
It appears that following the Water Corporation's letter to the Shire of 11 September 2006, discussions took place between Mr Lunt and the Shire in relation to the wastewater requirements of the proposed development. On 3 October 2006, Mr Chadd Hunt, the Shire's Manager of Planning Services, wrote a detailed report in relation to the proposed development which was considered by the Development Services Committee at its meeting on 10 October 2006. Mr Hunt's report includes the following:
"Sewer connection
The development is proposed to be connected to a sewerage service via a private pumping station on the south-east corner of the site, which would link to the sewer at Binningup Road by pressured main. The Water Corporation has indicated that this arrangement would be satisfactory. Staff have strong objections to the use of a private mains extension, as it would result in a private sewer line being located within Council road reserve, which would form a liability to Council. Council has not generally supported private sewer rising mains within road reserves in the past, although this arrangement has been approved by Council in the Australind locality, where the connection would be temporary only, and part of an infill project. Staff believe that acceptance of this arrangement will result in an undesirable precedent being set, allowing private sewer connections to be established at Council's liability."
Mr Hunt recommended that the Council refuse the development application on three grounds, including the following:
"The proposed use of a private pumping station and mains connection to sewerage is not acceptable to Council, on the basis that there is no infill program identified in the area, the arrangement places liability on Council for developer and Water Corporation infrastructure, and sets an undesirable precedent."
The development application was subsequently amended and was the subject of a further report by a senior planning officer which was considered by the Development Services Committee on 21 November 2006 and by the Council on 28 November 2006. This report includes the following:
"Sewer connection
Staff met with the developer and representatives from the Water Corporation to determine the likelihood of servicing the development through Water Corporation, infrastructure, fully funded by the developer. This is staff's preferred option, as it will facilitate the connection of the wider area to sewer, and will reduce liability to Council, as the Water Corporation would take full responsibility for the asset.
The proposal as discussed with Water Corporation and developer representatives would involve the developer constructing a sewer pump station within their property to be added to Water Corporation infrastructure, which will ultimately be a Water Corporation asset and be utilised to connect the entire catchment. Given the additional capacity required the size of the pump station is larger than what would be required to service the development site itself.
The total cost of initially installing the pump station and providing the land would be met by the developer, however some refund arrangements are possible within twelve months of construction. The exact cost of construction is not known, however indications are that it would be more expensive than the current private rising main proposal.
Following this meeting however, the developer had advised that the cost of such an option is too significant and would therefore not be undertaken by the developer."
Council's senior planning officer recommended that Council approve the development application subject to conditions including the condition which is the subject of the review. At its meeting on 28 November 2006, the Council accepted its senior planning officer's recommendation.
Mr Etherington concedes that the applicant did not provide a plan to the Council, prior to its determination of the development application, that showed a private sewerage main in the road reserves. Nevertheless, Mr Etherington submits that, at all relevant times, it was "abundantly clear" that the application required connection to the Water Corporation sewer and that the applicant's proposal was that the connection would take place through a private pumping station and private main. In its statement of issues, facts and contentions, the applicant contends that, at all material times, the development application included the road reserves by implication.
When the development application was lodged on 11 August 2006, it did not include development of the road reserves, whether expressly or by implication. As noted earlier, the development application is silent about waste water aspects other than the depiction on the site plan of the location of a proposed underground sewer pumping station at the south‑eastern corner of the site. However, the depiction of this facility without referring to private sewerage mains is consistent with the facility being vested in the Water Corporation and connected to the Water Corporation's sewer. As noted earlier, cl 2.1.2 of the Scheme exempts the carrying out of any works on, in, over or under a street or road by a public authority from the requirement to obtain development approval. If a development were to connect to the public sewer, it would be sufficient for a proposed pumping station to be depicted on the development application and not connections under an adjoining road.
At some point between 11 September 2006 and 3 October 2006, the applicant proposed that the development is to be connected to the Water Corporation sewer via a private pumping station and private main within the road reserves. This proposal was one of the three reasons on account of which Mr Hunt recommended the refusal of the development application for the development of the site on 3 October 2006. Between 10 October 2006 and 21 November 2006 the applicant, the Shire and the Water Corporation had further discussions in relation to the possibility of a public sewer connection. However, the applicant subsequently advised the Shire that it would not proceed with public connection as the cost would be too significant. The senior planning officer's report to the Development Services Committee meeting of 21 November 2006 and the Council meeting of 28 November 2006 referred to the private pumping station and private mains connection as "the [applicant]'s current private rising main proposal".
A development application for approval for the carrying out of development on land cannot be amended to incorporate land that was not the subject of the development application or to include a different development to that proposed. As the High Court of Australia observed in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 476:
"A development application seeks consent to a development that a person would otherwise be prohibited from carrying out by s 76(2) [of the Environmental Planning and Assessment Act 1979 (NSW)]. The prohibition contained in s 76(2) is against the carrying out of a 'development on land to which [a provision of an environmental planning instrument] applies'. Such a provision applies to particular parcels of land. A 'development' can be carried out only on a particular parcel. Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application 'relates' must therefore be land on which the specified development is proposed to be carried out."
Similarly, as noted earlier:
•clause 2.1.1 of the Scheme prohibits the carrying out of development on land within the Scheme area without the prior consent of the Council;
•clause 2.2.1 of the Scheme requires that a development application must be in the form prescribed in Sch 10, which identifies the application as being for the use of land that is described in the form; and
•clause 2.2.2 requires that a development application must be accompanied by a plan or plans showing relevant aspects of "the site", namely, the site of the proposed development.
It is clear that the parcel of land on which the proposed development is to be carried out is the site. It is also clear that the development which is the subject of the application and of the Shire's approval is short stay accommodation units and associated amenities at the site. The construction of the private sewer main within the road reserves is a different development and is proposed to be carried out on a different parcel of land to the site. The development application could not, therefore, have been amended to include the construction of the private sewerage main.
Although, at some point between 11 September 2006 and 3 October 2006 and again at some point prior to 21 November 2006, the applicant proposed that sewerage connection to the proposed development would be via the private sewerage main, and that proposal was assessed by the Shire's officers and by the Shire, it was not the subject of a development application made to the Shire. Rather, it was a proposal to provide a service which is necessary in order to carry out the development which is the subject of the development application.
Moreover, although the Shire was able to form an opinion about the acceptability of private sewer main connection as an aspect of servicing the proposed development, it was not able, without a plan and specifications of the proposed structures within the road reserves, to assess and grant development approval for those structures. In this regard, although cl 2.2.2 of the Scheme permits the Council to waive any particular requirement, including a requirement for plans showing the site of a development application and the location of buildings proposed to be erected on the site, the Shire could not properly have determined a development application involving a substantial private structure within a public road without knowing precisely where the structure is proposed and detailed specifications.
Furthermore, contrary to the applicant's submission, the Shire did not deal with the development application on the basis that development approval was sought for the private sewerage main: cf Congregation of the Church of Jesus Christ of Latterday Saints v Shire of Wanneroo (Unreported, Town Planning Appeal Tribunal of Western Australia; Appeal No 4 of 1979; delivered 28 February 1980) at 4. The Shire certainly dealt with the development application on the basis that the applicant proposed that the development be serviced via a private sewerage main in public roads. However, it did not deal with the development application on the basis that approval was sought for the private sewerage main as an element of the development application.
The land to which the development application relates does not include the roads in which the sewerage main is proposed to be located.

Should the Tribunal give owner's consent in relation to the roads?

In light of the Tribunal's determination in relation to issue 2, this issue does not arise.

Would the imposition of the applicant's alternative conditions be futile?

The Shire contends that it would be futile to allow the application for review, because it has already indicated that, as the authority having the care, control and management of the roads, it will not allow the installation of a private sewer main within the road reserves.
Although the Shire has control and management functions in relation to the roads, it is not the owner of the roads: see Adbooth Pty Ltd and City of Perth [2006] WASAT 343. Administration of the LA Act is committed to the Minister for Lands (Minister) who is an agent of the Crown in right of the State: LA Act s 7(1), s 7(4). Under s 18 of the LA Act, only the Minister can grant a lease or licence in relation to land within a road reserve. The Minister may grant a lease or licence in respect of land below a road without the relevant local government's consent. In this case, it would be open to the Minister to grant a lease or licence enabling the installation of the private sewerage main without the Council's consent.
In any case, the fact that the Shire has indicated its opposition does not mean that its opposition will remain indefinitely. In particular, if the Tribunal were to find that the Shire's condition (b) cannot or should not be imposed and that the applicant's alternative conditions should be imposed on the grant of development approval, the Shire might change its position as the authority having the care, control and management of the roads.
The imposition of a condition on the grant of development approval for the site requiring the construction of a private sewer main in the roads would, therefore, not be futile.

Is the condition imposed by the Shire appropriate?

Mr Etherington submits that, although condition (b) appears, on its face, to be reasonable, if one goes below the surface of the condition and assesses what it is that the condition practically requires of the applicant, it cannot be lawfully imposed and, in any case, is unreasonable.
Mr Etherington submits that, in practical terms, condition (b) can only be complied with by the applicant agreeing with the Water Corporation to:
•pre-fund public infrastructure in the form of a Water Corporation sewerage pumping station which has the capacity to cater for the wastewater generated not only by the proposed development but also by the wider sewerage catchment around the site;
•cede part of the site to the Water Corporation for the pumping station and associated infrastructure free of cost; and
•delete two units from the development.
However, the evidence does not permit a finding to be made in this case that the Shire's condition (b) will require the applicant to give up land free of cost, because, as Mr Crowd indicated, an off site location may be secured. Furthermore, the evidence does not permit a finding that two units would be lost, because, as Mr Crowd said, the location of the required public pumping station is unknown.
It is common ground in the proceedings that, because of the Water Corporation's current policies, condition (b) can only be complied with by the applicant agreeing to pre-fund the construction of a public sewerage pumping station to cater for the proposed development and the wider sewerage catchment. However, it is also common ground that Water Corporation policy includes an arrangement for the applicant to recoup the cost of pre-funding the infrastructure over a period of time.
Mr Etherington contends that the Shire's condition (b) cannot be lawfully imposed for each of essentially four reasons.
First, Mr Etherington relies on the decisions of the New South Wales Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 and Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 286 and submits that condition (b) substantially alters the development which was applied for. In Mison v Randwick Municipal Council, Priestley JA, with whom Clarke JA and Meagher JA agreed, held that if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, or if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which application was made, then the purported consent is not a consent to the application at all. The condition cannot be lawfully imposed.
However, even if the effect of condition (b) were to require the applicant to provide to the Water Corporation, free of cost, land for a public sewerage pumping station to cater for the wider sewerage catchment, and the location of that land would necessitate the deletion of two out of 71 approved units, the effect of the condition would not significantly alter the development in respect of which the application was made or leave open the possibility that development carried out in accordance with the development approval and condition will be significantly different from the development for which application was made. The development would remain a short stay accommodation facility with associated amenities, although potentially with two less units.
Second, Mr Etherington relies on the decision of the former Town Planning Appeal Tribunal in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 and submits that condition (b) seeks to impermissibly fulfil a public need, the existence of which bears no relationship with the development. In Perrymead Investments Pty Ltd v Western Australian Planning Commission, the Town Planning Appeal Tribunal held, at 186, that:
"A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision [or development]. … In normal circumstances, and as a general proposition, the condition must, at least, be related to changes that can be said to arise from the particular development or subdivision."

The Tribunal also held that a condition "can be said to reasonably relate [to a proposed development] if it arises from changes precipitated by the development" and that, if it does reasonably relate, "then it is not fatal if the condition also benefits the public at large to a greater or lesser degree".
Mr Etherington submits that, because compliance with condition (b) is likely to require the applicant to provide land and construct a facility to serve not only the proposed development, but also the wider sewerage catchment, it ceases to have a nexus with the approved development.
The Tribunal considers that it is appropriate to have regard to the likely consequences of a proposed condition of planning approval in deciding whether the condition can or should be imposed. As Mr Etherington suggests, it is appropriate, in this case, to look behind the wording of condition (b) to its likely practical consequences.
However, in this case, condition (b) reasonably relates to the proposed development, both in its wording and in its likely practical consequences. In its wording, condition (b) merely requires that the development must be connected to the public sewer. Although the likely practical consequence of the condition is that the applicant must pre‑fund a public sewerage pumping station with a capacity to cater not only for the development, but also for the wider catchment, the applicant is likely to recoup the costs over a period of time. Similarly, even if compliance with the condition ultimately requires the applicant to give up land, free of cost, for a pumping station on site, it is likely that the applicant would be compensated in relation to the area not required in consequence of its development. The dedication of land, free of cost, to construct a pumping station necessitated by the development reasonably relates to the development. The condition, therefore, bears the requisite nexus to the proposed development.
Third, Mr Etherington submits that, although a condition which requires connection to the Water Corporation sewer has a proper planning purpose, a condition which precludes connection via private sewerage infrastructure does not have a proper planning purpose.
However, for reasons discussed in relation to the applicant's alternative conditions below, the Tribunal considers that allowing the proposed development to connect to the Water Corporation sewer via a private sewerage main within the road reserves would be contrary to the orderly and proper planning of the locality. The condition imposed by the Shire therefore has a proper planning purpose.
Fourth, Mr Etherington submits that it is arguable that the condition seeks to improperly fetter the discretion that remains to be exercised under s 3.18(1) of the Local Government Act 1995 (WA) (LG Act). That section authorises a local government to perform executive functions. However, assuming that the Shire would have power under that section to authorise the placement of private sewerage pipes within the road reserves, the imposition of a condition of development approval which requires connection to the public sewer and which, expressly or by practical application, precludes connection via private infrastructure, does not fetter a discretion under the section. The discretionary considerations under the PD Act/Scheme and under the LG Act are different, each depending on the terms and purpose of the statute in question.
Mr Etherington also contends that condition (b) is unreasonable. He submits that the required public infrastructure is "prohibitively expensive" and unnecessary. He also submits that the proposed private sewerage main is a commonly utilised option that achieves the same planning purpose.
The evidence does not establish that the public infrastructure which would be required in order to comply with the Shire's condition (b) would be prohibitively expensive or unnecessary.
Mr Lunt gave evidence that, whereas the applicant's private pumping station and private sewerage mains proposal would cost approximately $130 000, excluding fees and traffic management, Mr Crowd indicated to the applicant that the Shire's condition would cost in the vicinity of $500 000 to $750 000, although this figure is heavily dependent upon further site investigations. In his evidence in the proceedings, Mr Crowd did not provide an estimate of the cost of compliance with condition (b) or of the cost of compliance with the applicant's alternative conditions. The applicant was content to rely on Mr Crowd's statement of evidence and he was not required for cross-examination.
However, even assuming that the cost of compliance with condition (b) is in the vicinity of $500 000 to $750 000, and putting aside the fact that the applicant would only be required to pre‑fund construction and would recoup the costs, this amount is not "prohibitively expensive" in the context of a development with an approximate cost of $18 000 000 and which involves the construction and sale of 71 units.
Furthermore, although Mr Crowd gave evidence that private pumping station solutions are quite commonly used where suitable wastewater infrastructure is unavailable and connection to existing infrastructure is considered unreasonable, in this case, suitable wastewater infrastructure in the form of a public sewer is available within close proximity to the site and the Tribunal considers that it is not unreasonable, in the context of the scale and value of the development, to require the applicant to construct or fund a public pumping station to enable its development to be connected to that sewer.
The Tribunal accepts the evidence of Mr Jacob Davidson, the Shire's Manager of Planning Services, which was not disputed, that "the development should not be approved prior to provision of appropriate wastewater infrastructure in the interests of orderly and proper planning". For reasons discussed below, the applicant's private sewerage connection alternative is contrary to the orderly and proper planning of the locality. The Shire's condition (b) is therefore necessary.
It follows that the Shire's condition (b) is capable of lawful imposition and is a reasonable and appropriate condition to impose in relation to the proposed development.

Are the alternative conditions proposed by the applicant appropriate?

Clause 2.4.2 of the Scheme requires that the Council have regard to a number of considerations in determining a development application and appropriate conditions, including the orderly and proper planning of the locality. The Tribunal considers that the applicant's alternative conditions to the Shire's condition (b) would be contrary to the orderly and proper planning of the locality for three reasons.
First, while a condition could be formulated which requires the applicant and its successors in title, including the strata company, to enter into deeds to indemnify the Council for the maintenance, upgrading or replacement of the private pumping station and private sewerage main and to maintain an insurance policy in this regard, such a condition would create an unreasonable enforcement burden on the Shire in the circumstances of this case. As Mr Peter Anderson, the Shire Engineer, observed, "over a long term basis, the requirement on the respondent to ensure currency of insurance and proper maintenance budgeting by the future body corporate would be onerous". It would be unreasonable for the Shire to have to monitor whether each purchaser has entered into a deed before each land transfer and whether appropriate insurance policies are being maintained.
Second, as the private sewerage main would be located within public roads, the applicant's proposal would cast primary responsibility for the maintenance and repair of a 470 metre long sewerage pipe upon the Shire, which is not the sewerage authority for the district and does not therefore have the same equipment, personnel and experience as does the Water Corporation to be able to respond to sewerage pipe failure events.
Mr Crowd gave evidence that, from the Water Corporation's perspective, "it would not make any significant difference whether the property was connected by a private pumping arrangement or by a Corporation owned and operated [wastewater pumping station]". However, he also said that "probably the most significant differences between a private pumping station and a corporation [wastewater pumping station] are ownership and operational responsibilities for both the pumping station and the pressure main … ".
In an email to Mr Hunt of the Shire on 6 October 2006, Mr Crowd stated as follows:
"The Corporation accepts that an individual property owner is unlikely to be able to ensure quick response to incidents such as burst or damaged pressure main situations and that we are likely to be the first contact should an incident occur. Accordingly, the Corporation will attend any incidents reported to it and will make appropriate repairs and arrange any necessary clean up including reporting of sewerage spills if required. The costs of such works are then invoiced to the property owner."
However, while the public or other authorities may initially contact the Water Corporation should an incident in relation to the private sewerage main occur, on the assumption that it is a public sewerage main, the Water Corporation would not be under any legal obligation to attend to and repair the pipe. Indeed, the Water Corporation would have no statutory or private law right to undertake roadworks in order to gain access to a private sewerage main. Furthermore, Mr Crowd does not appear to have authority to bind the Water Corporation to attend to incidents in perpetuity.
Third, Mr Anderson gave evidence that:
"The installation of private sewer may frustrate the provision of future public sewerage infrastructure to service the immediate locality, on the basis that the proposed (significant) development would already be connected to sewer, albeit by private means."
Mr Crowd considered that "[a] private pumping station should not be developed in such a way that it may frustrate provision of future wastewater infrastructure development or connection of properties". He indicated that wastewater planning for the Binningup townsite and surrounding area is currently being reviewed by consultants commissioned by the Water Corporation. The outcomes of the review are not yet known and may or may not impact on the development. There is, therefore, currently no sewer infill program in the area.
Mr Anderson was not required for cross‑examination. The applicant did not call any engineering evidence to contradict Mr Anderson's opinion that the applicant's proposal may frustrate the provision of future sewerage infrastructure to service the immediate locality. Mr Anderson is an engineer with over 30 years' experience, including 15 years' local experience. His concern is supported by Mr Crowd's observation that a private pumping station should not be developed in such a way that it may frustrate provision of future wastewater infrastructure development or connection of properties. Mr Anderson's concern is also supported by logic – if the major development in the locality already has access to wastewater services and the remaining developments are residential properties served by existing septic arrangements, it is less likely that the Water Corporation will invest the necessary resources to provide the residential properties with access to deep sewer.
The Tribunal, therefore, accepts Mr Anderson's evidence in this respect. It is to be noted that the Shire has only previously approved private sewer arrangements where the connection would be temporary and part of an infill project. In this case, there is no infill program and the installation of private sewerage infrastructure may frustrate the provision of public sewerage infrastructure with the result that residential properties in the area may not have sewer access.
It follows that the applicant's alternative conditions are not appropriate.

Conclusion

The Tribunal has determined that a condition of development approval requiring the development to be connected to the Water Corporation sewer is capable of imposition and is reasonable and appropriate. The development is significant and requires access to the public sewer. Although, as a practical matter, it is likely that compliance with the condition would require the applicant to pre‑fund sewerage infrastructure which is greater in capacity than that required to cater for the proposed development, the applicant would be reimbursed over time for the costs. The disputed condition, therefore, has a planning purpose and requisite nexus to the proposed development. The condition is also reasonable and appropriate, given the scale and value of the development.
The Tribunal has also determined that the applicant's alternative conditions, which would involve the construction of a private pumping station on the site and a private sewerage main within public roads for a distance of 470 metres, would be contrary to the orderly and proper planning of the locality. The alternate conditions would give rise to an unreasonable enforcement burden in relation to ensuring the execution of deeds by landowners and the maintenance of insurance for the benefit of the Shire, cast primary maintenance and repair responsibility onto the Shire, which is not the sewerage authority for the district, and may frustrate the provision of future public sewerage infrastructure to service the locality.
It follows that the application for review should be dismissed although the condition should be amended as agreed by the Shire during the hearing.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to grant conditional development approval for short stay accommodation and associated facilities at No 31 (Lot 70) Portland Drive, Binningup subject to conditions is varied by deleting condition (b) and by replacing it with the following condition:
"The development shall be connected to the Water Corporation sewer."

I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER