PRENDIVILLE SUPERANNUATION PTY LTD and SHIRE OF DUNDAS - [2023] WASAT 122

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   PRENDIVILLE SUPERANNUATION PTY LTD and SHIRE OF DUNDAS [2023] WASAT 122
MEMBER:   MS R LAVERY, MEMBER
HEARD:   1, 2 AND 8 AUGUST 2023
DELIVERED          :   8 DECEMBER 2023
FILE NO/S:   DR 131 of 2022
BETWEEN:   PRENDIVILLE SUPERANNUATION PTY LTD
Applicant
AND
SHIRE OF DUNDAS
Respondent

Catchwords:

Planning and development - Review of conditions of approval - Truck parking and truck refuelling - Conditions requiring contribution to upgrade and maintenance of road - Whether for a planning purpose - Whether conditions fairly and reasonably related to development - Legal unreasonableness

Legislation:

Planning and Development Act 2005 (WA)
Road Traffic (Vehicles) Regulations 2014 (WA), reg 190
Shire of Dundas Local Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 27(2)

Result:

Application for review upheld
Condition xvii set aside with new condition to be substituted
Condition xviii deleted

Category: B

Representation:

Counsel:

Applicant	:	Mr J Skinner
Respondent	:	Mr PL Wittkuhn

Solicitors:

Applicant	:	Thomson Geer - Perth
Respondent	:	McLeods

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Bunnings Group Limited v Presiding Member of the Metro North West Joint Development Assessment Panel [2019] WASAT 121
Carbone Bros Pty Ltd v Shire of Harvey (2014) 202 LGERA 455
Carbone Bros Pty Ltd v Shire of Harvey (2015) 49 WAR 400
Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Prosser v City of Bunbury [2018] WASAT 41
Tillbrook v Western Australian Planning Commission [2011] WASAT 130

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Prendiville Superannuation Pty Ltd (the applicant) seeks review of conditions (xvii) and (xviii) in relation to road upgrade and ongoing road maintenance, imposed upon a decision of the Shire of Dundas (the respondent, Shire or Council) to grant a development approval for truck refuelling and associated truck parking on Lot 3 Eyre Highway, Norseman (the subject land) made on 28 June 2022.
In these reasons, the Tribunal will firstly describe the subject land and the proposed development. The Tribunal will then set out, and in turn consider, the principal issues for determination in these proceedings.
In relation to these matters the Tribunal had the benefit of expert evidence from Mr Reegan John Cake a town planner, Mr Sam Gordon Laybutt a traffic consultant on behalf of the applicant and Mr Joshua Anthony Kirk a civil engineer, Mr Anthony David Dowling a town planner on behalf of the respondent. The Tribunal also heard evidence from Mr Michael Garrett Prendiville a director of the applicant and Mr Peter Anthony Fitchat the Chief Executive Officer of the Shire on behalf of the respondent. The Tribunal also admitted into evidence witness statements from, Mr Latif Samadi an Information and Technology Officer at the Shire of Dundas, Ms Ana Clara Soares Viola an Executive Assistant at the Shire of Dundas, and Mr Lynn Wesley Webb a photographer who produced photographs and drone footage, on behalf of the respondent, who were not required for cross-examination.
For the reasons given below, the Tribunal finds that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to set aside condition xvii and in its place there is to be a condition which requires the applicant to make a contribution towards the upgrade of that portion of Roberts Street carriageway extending from 10 metres south of the Eyre Highway kerb line to southern extent of the southern crossover to Lot 3, in an amount to be agreed by the parties, or if not agreed, to be determined by the Tribunal following a further hearing, and to delete condition xviii.
The subject development comprises:
•a 13.5 metre long by 8 metre wide and 6.4 metre high canopy over three proposed unmanned truck refuelling bowsers;
•a 7.2m² control room;
•two (2) contained self-bunded ground diesel storage tanks;
•a one-way bitumen-paved driveway to access the fuel bowsers and truck parking area;
•a truck parking area paved with crushed stone for the parking of up to six road trains (B-Triples, 35.4 metres long);
•a trucking passing lane paved with crushed stone;
•onsite drainage infrastructure;
•a footpath providing pedestrian access from Lot 3 across Roberts Street to the existing roadhouse on Lot 2; and
•access to and from Lot 3 from Roberts Street via proposed concrete crossovers.
The Council resolved on 28 June 2022 to approve the application subject to twenty (20) conditions, eighteen (18) of which are accepted by the applicant. The conditions in dispute in this matter are:
(xvii)The existing Roberts Street carriageway—extending from 10 metres south of the Eyre Highway kerb line to the southern boundary of lot 3—being upgraded to the specifications and satisfaction of the Shire of Dundas Chief Executive Officer (or delegate);
(xviii)The registered proprietor of lot 3 entering into a deed of agreement with the Shire of Dundas to maintain the Roberts Street reserve—extending from 10 metres south of the Eyre Highway kerb line to the southern boundary of lot 3—to the specifications and satisfaction of the Shire of Dundas Chief Executive Officer (or delegate).

Facts

The subject land is Lot 3 Eyre Highway, Norseman, being Lot 3 on Diagram 42692 and being the whole of the land comprised in Certificate of Title Volume 1321 Folio 969 (subject lot).
Lot 3 is:
•approximately 1.54 hectares in size;
•located on the south-east corner of the Eyre Highway/Roberts Street intersection at the northern edge of the town of Norseman. Eyre Highway runs generally in an east-west direction and Roberts Street runs generally in a north-south direction;
•zoned 'SU 1' (Special Use Area 1) under Shire of Dundas Local Planning Scheme No. 2.
Eyre Highway terminates at a T-junction with Coolgardie-Esperance Highway approximately 180 metres west of Lot 3.
Lot 3 is currently used as an informal truck parking area without sealed areas, hardstand, marked bays or fuel dispensing. The truck parking occupies approximately half of the site with the remaining portion of the site occupied by remnant vegetation.
On the opposite side of Roberts Street is Lot 2 occupied by an existing service station, with fuel bowsers for both light vehicles and trucks, also owned by the applicant.
No development is proposed on Lot 2. The existing service station on Lot 2 is not part of the June 2022 approval.
Existing truck access to Lot 3 is via Roberts Street, either directly from Eyre Highway or through Lot 2.

Issue for determination

The issue for determination in this matter as agreed by the parties is:
Whether conditions xvii and xviii can be lawfully imposed, and if so, whether the conditions are appropriate and reasonable in the circumstances of this case?
The considerations for determining whether the planning conditions are valid are set out in the 'Newbury tests'[1] and are accepted principles relevant to the present case. As Deputy President Parry articulated in Prosser v City of Bunbury:
[1] Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury).
37The 'Newbury tests' derive their name from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. The Newbury tests were stated by McHugh J in the High Court of Australia in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 in the following terms [57]:
… A condition attaching to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
38In Western Australian Planning Commission v Temwood Holdings Pty Ltd Callinan J also referred, with apparent approval, to the Newbury tests as follows [155]:
… that a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it[.]
39In Reid v Western Australian Planning Commission [2016] WASCA 181, the Court of Appeal (Martin CJ, Newnes and Murphy JJA agreeing) endorsed the Newbury tests. After setting out the passage from McHugh J's judgment in Western Australian Planning Commission v Temwood Holdings Pty Ltd quoted at [37] above, the Chief Justice observed and held as follows [29]:
It is clear from the terminology used by McHugh J and from his reasons read as a whole that he considered the three conditions of validity to which he referred to be quite separate and distinct so, even if the condition is imposed in the furtherance of a proper planning purpose, it will not be valid unless it reasonably and fairly relates to the development proposed.[2]
[2] Prosser v City of Bunbury [2018] WASAT 41 at [37] – [39].
The legal principles that apply are not in dispute.
Whilst the respondent at first argued that there was no evidence that the existing truck parking had been approved, and pursued that position on the first day of the final hearing, the respondent's counsel was made aware of an approval issued by the Council for the truck parking in June 1989 which resulted in the respondent conceding, on the second day of the hearing, that there was an approval and that the traffic and impact on the Roberts Street for the consideration of the Tribunal in this review is only that associated with the additional use of truck refuelling under the June 2022 approval.

Condition xvii

In relation to the first Newbury test, the parties do not dispute that there is a proper planning purpose for the imposition of condition xvii but rather agree that there is a recognised planning purpose in terms of roads and their condition.

Applicant's position

The applicant is at pains to point out that there are 20 conditions imposed on the June 2022 approval and that with the exception of conditions the subject of this review, the remainder are accepted by the applicant. The remaining conditions include amongst other matters the construction of the proposed crossovers to Lot 3, the bitumen driveway within Lot 3, footpath in the verge between Lots 2 and 3 and onsite drainage system for Lot 3. The applicant asserts that these conditions address the issues that are currently raised by the respondent as being issues for Roberts Street and are not contested.
It is the applicant's position that the proposed development involves the formalising and reducing in area of the existing truck parking and the introduction of an unmanned truck refuelling facility on Lot 3. They say that up until the second day of the final hearing, the respondent was justifying the conditions on the basis of there being no previous approval of the truck parking on Lot 3 however the respondent now accepts there is an approved truck parking use, so the Tribunal's consideration as to the appropriateness of imposing conditions xvii and xviii needs to be limited to the proposed truck refuelling only.
The respondent had not initially acknowledged that the truck parking on Lot 3 had previously been approved by the Shire however that evidence was received following the first day of the final hearing and it is now acknowledged by both parties that truck parking on Lot 3 was previously approved by the Shire. While there are no plans of the extent of approved truck parking, the aerial view of the existing truck parking does indicate that the proposed truck parking would be of a lesser area and more formalised sealed and marked truck parking bays than that which currently exists on the subject land.
With the confirmation of the development approval of the existing truck parking use, the respondent has also conceded the existing traffic associated with the use cannot be used to justify the conditions. The applicant submits therefore that the consideration of the Tribunal is whether the new development gives rise to a sufficient nexus for the conditions under review and they say it does not as their traffic consultant Mr Laybutt has indicated that the traffic volumes resulting from the truck refuelling are neutral or may even slightly decrease.
In cross-examination Mr Cake opines that there was no nexus for the condition requiring the upgrade of the road and it would be unreasonable to impose such condition because 'it has not been demonstrated the proposed development will have the effect of attracting a material increase in truck traffic and associated impact on Roberts Street' having considered the evidence of Mr Kirk, Mr Laybutt and Mr Prendiville.[3]
[3] Witness Statement of Mr Reegan John Cake dated and filed 11 July 2023, paragraph 52.
Mr Dowling however contends that 'the uplift in the amenity and improvement of the accessibility to the site would lead to some proportion[al] increase'.[4]
[4] ts 146, 2 August 2023.
Mr Prendiville told the Tribunal that the different transport operators used fuel cards specific to the brand of petrol stations. This custom which equated to 91% of sales of fuel for trucks at the service station on Lot 2 was by the brand fuel card. He asserts that trucks drivers will only buy fuel from the brand of service station that they have a fuel card for and because of that they are not likely to attract a significant proportion of the remaining 9% of trucks requiring refuelling. Mr Prendiville was at pains to tell the Tribunal that the upgrade of facilities to include refuelling on Lot 3 is not to increase patronage but rather to protect business continuity should the bowsers on Lot 2 not be operative. For this reason he says, there will not be an increase in truck traffic on Roberts Street.
Mr Kirk stated in relation to the issue of upgrading of the road that:[5]
77.In general terms I would say that when a proponent is proposing a major truck-based facility, where the driveway crossover meets the public road and the road will be exposed to truck turning movements, it would be normal for the proponent to take a degree of 'ownership' of the integration between the new and old infrastructure. This is especially the case where the new driveway would be joined to a road that is aged or not in pristine condition.
78.I disagree with any suggestion that it is the local government's duty to upgrade its road so as to accommodate whatever new use comes to use that road. In cases of new private uses involving heavy haulage vehicles on roads that have fallen below a suitable standard for such a use, it is common in my experience for the planning authority to require an upgrade at the proponent's cost.
[5] Witness statement of Joshua Anthony Kirk filed 26 April 2023, paragraphs 77 and 78.
The applicant asserts that while there does not need to be a mathematical precision between a nexus that is established and the scope of a condition that is imposed, nevertheless there still needs to be a nexus and there does need to be some relationship between the scope of the nexus and the scope of the condition. It certainly must be such that the condition can be said to reasonably and fairly relate to the proposal.
Therefore, the applicant says that the starting point is that there needs to be a nexus established that the condition still has to 'fairly and reasonably relate to the development in terms of what is the scope or breadth of that nexus'. They submit that:
As Perrymead makes clear, planning authorities cannot simply take advantage of the fact that a developer has come forward for approval in circumstances where there is an existing community need. Conversely, developers cannot always deny nexus in circumstances where their development also benefits from the requirements of the condition.
However, as was the case with LWP Properties, even where the development itself will benefit, it is still open to find that the nexus question is not satisfied if there is a disproportionate burden on the developer in complying with the condition. In each circumstance, it will be a question of fact and degree having regard to the proposal in question in the context of the applicable planning framework.[6]
[6] S Willey, Planning and Environmental Law in Western Australia (2021) at paragraphs 13.310 and 13.320, pages 333-334 – 'The question of nexus: discussion'.
The applicant says in relation to condition xvii that the Shire requires the upgrade for the whole extent of Roberts Street between the current Eyre Highway intersection and the Old Eyre Highway intersection and that there is no basis on the evidence provided to include this extent of road as required by the condition. They say that the respondent led no evidence at all that would support the upgrading of the section of the road south of the southern crossover into Lot 3. Rather, the Shire's engineering expert agreed in the joint statement of evidence of expert witnesses that no upgrade was required for that section of Roberts Street.
The applicant submits that even with the concession by the respondent that arrived in the form of amended conditions on 8 August 2023 on the last day of the final hearing, which sought to limit the section of the road the subject of the upgrade by excluding that section south of the southern crossover, that the existing truck traffic cannot provide the nexus for the upgrade of the road.
The applicant submits that the Tribunal must be satisfied that there will be a change to the existing truck traffic on Roberts Street as a result of the proposed truck refuelling for there to be a nexus in order to require that section to be upgraded and that the change to truck traffic can only arise either through the change in movement patterns or as an increase in overall truck traffic.
It is the applicant's assertion that the respondent has provided no evidence of the change in truck movement patterns but rather has relied on the increase in the total number of trucks, its figure for which likely also includes busses and large recreational vehicles. They say that the proposed development does not justify the 100% contribution to the upgrade of the entire section of Roberts Street proposed in condition xvii or even to the respondent's suggested reduced section of Roberts Street.

Respondent's position

The respondent's position is that the proposed development will both increase the truck movements and modify truck movement patterns as a result of the new development on the site. The respondent points to the joint statement of evidence of expert witnesses and in particular that the traffic volumes in the Cardno Traffic Impact Statement submitted for the development application should be set aside and superseded by traffic volumes of 82 - 154 trucks per day southbound on Roberts Street and 19 - 26 trucks per day northbound on Roberts Street and notes that these agreed figures are those of the applicant's witness Mr Laybutt.
In relation to truck movement patterns the respondent says that trucks currently utilising Roberts Street to access the existing service station on Lot 2 enter from Roberts Street and exit onto Eyre Highway whereas trucks refuelling at Lot 3 would both enter and exit via Roberts Street causing additional truck movements. It is acknowledged that there is no alternative access to using Roberts Street if the trucks are refuelling on Lot 3.

The traffic experts agreed that:
(a)The main current attractor of truck traffic to the existing use is truck parking while drivers attend the roadhouse at Lot 2, either:
(i)in association with also refuelling their trucks at Lot 2; or
(ii)as a rest stop without refuelling at Lot 2.
(b)The attractor referred to in (a) will remain, but, significantly, an additional attractor will be added, namely the ability for trucks to refuel at purpose-built high-flow pumps at Lot 3;
(c)Trucks will not need to compete with other traffic for movement and circulation when refuelling on Lot 3 as they must currently do at Lot 2;
(d)The subject development will be more attractive to trucks in that it will be a purpose-built, engineer-designed, paved and sealed facility with formalised and orderly internal movement pattern;
(e)The subject development will have greater capacity than the existing use due to its use of a larger footprint, in addition to the matters referred to in (b) and (c);[7]
…
[7] Joint Statement of Evidence of Expert Witnesses Sam Gordon Laybutt and Joshua Anthony Kirk dated 12 May 2023 and filed 15 May 2023, page 6, Issue 1.
The traffic experts also agreed that '[t]he anticipated volume of traffic, particularly heavy vehicle traffic, plays a role under most standards and methodologies for identifying the more particular specification for road upgrades'.[8]
[8] Joint Statement of Evidence of Expert Witnesses Sam Gordon Laybutt and Joshua Anthony Kirk dated 12 May 2023 and filed 15 May 2023, page 6, Issue 1, paragraph 20.
The traffic experts did not however agree whether the proposed development would reasonably be expected to generate a significant net increase in truck traffic using the northernmost portion of Roberts Street. Mr Laybutt is of the view that there is likely to be a neutral or slight decrease in the truck traffic, using as the basis for this position the evidence of Mr Prendiville that there was a relatively small number of additional customers likely to use the truck refuelling on Lot 3 given that transport operators usually refuel at sites which correspond to their brand of fuel card. Mr Laybutt asserts that small increases in additional customers would likely be offset by reductions in the number of customers using Lot 2 for refuelling. Mr Laybutt holds the view that the truck refuelling does not result in a significant increase in truck movements on Roberts Street because:
24.Overall, it is my opinion that the proposed development is likely to have no impact or a small reduction in the number of daily truck movements using Roberts Street between Eyre Highway and the southern boundary of Lot 3. Contrary to the Respondent's contention in its paragraph 19, there is no evidence available to me that indicates a material increase in the number of truck movements using Roberts Street is a likely outcome of the proposed development.[9]
[9] Joint Statement of Evidence of Expert Witnesses Mr Sam Gordon Laybutt and Mr Joshua Anthony Kirk dated 12 May 2023 and filed 15 May 2023, page 10, Issue 2.
Mr Kirk contends that the improved facilities within the development are likely to increase the attractiveness of the site to transport operators:
20.My expertise extends to commenting that there are quite a lot of opportunities for conflicting traffic movements at a service station which serves a combination of cars and trucks. Many motorists are not familiar with manoeuvres that trucks need to make, the limitations on truck drivers' site lines within a facility etc. Therefore, I believe that a dedicated truck stop would be quite attractive to many truck drivers and their trucking companies, in preference to a service station serving cars and trucks. (I believe that the decision of which facility to refuel, would mainly be made by the trucking companies rather than individual drivers, based on a card arrangement or other journey management procedure).[10]
[10] Witness Statement of Mr Joshua Anthony Kirk dated 25 April 2023 and filed 26 April 2023, paragraph 20.
With reference to paragraph 6.1 of the applicant's Traffic Impact Assessment[11] Mr Kirk opines:
26.I disagree with the third arrow point when it says 'these trips are already visiting the site and are therefore not new trips on the network'. As I have explained, I consider that the subject development will increase the net amount of trucks refuelling at the combined facilities of BP and the subject site. The TIA assumes that there is a fixed level of demand for trucks accessing Norseman as their refuelling point, and that it is not possible to make Norseman a more attractive choice to refuel. However, truck drivers and their trucking companies already have choices, so improving Norseman as a more attractive location to choose to re-fuel, is likely to lead to a net increase in truck customers to BP and Lot 3 combined. There are things about the subject development which I have already discussed, but which in my opinion would make it a very attractive refuelling choice.[12]
[11] Respondent's s 24 bundle of documents Tab 8 - Cardno Traffic Impact Assessment Version B dated 11 March 2022, paragraph 6.1 Development Traffic Generation.
[12] Witness Statement of Mr Joshua Anthony Kirk dated 25 April 2023 and filed 26 April 2023, paragraph 26.
As a result, Mr Kirk asserts that some trucks that are already on the broader road network may elect to refuel at Lot 3 instead of other locations.

Tribunal's considerations

Second Newbury test

In Ironbridge Holdings Pty Ltd and Western Australian Planning Commission, Deputy President Parry sets out the basis for reviewing the condition in dispute based on the second Newbury test:
22Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 was a case concerning the review of a condition of subdivision approval which required that an existing unsealed road be upgraded and sealed. The Town Planning Appeal Tribunal said the following in relation to the second Newbury test:
"The test of the validity and scope of a condition in this State is whether it fairly and reasonably relates to the development. The decision of [Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386], although in the context of Queensland legislation, stands for the proposition that should have application in Western Australia: the condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. 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.
A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision. The requirement that a condition reasonably relates to the subdivision does not, therefore, allow the Commission or the local authority to use the subdivision or development as a trigger for a future need that does not arise, in part, from the project. There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval".[13]
[13] Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305 at [22]
While the parties do not agree on the magnitude of those changes, there is little doubt that the addition of fuel bowsers for trucks will change the pattern, if not significantly the volumes, of the truck movements and that in itself is a change that in my view brings about a nexus for contribution to the upgrade of the road and the ongoing maintenance in some form.
I find that the respondent demonstrated that there is likely to be an increase in truck traffic movement and in particular, changes in the pattern of movement on Roberts Street, as a result of the truck refuelling on Lot 3. I am satisfied on the evidence that if a condition was reworded to limit it to a contribution towards the upgrade of that portion of Roberts Street carriageway extending from 10 metres south of the Eyre Highway kerb line to the southern extent of the southern crossover to Lot 3 then there is a nexus between that upgrade and the modified movement patterns that would fulfil the second Newbury test.

Third Newbury test

In regard to the third Newbury test, unreasonableness is terminology derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury).
As articulated in Bunnings Group Limited v Presiding Member of the Metro North West Joint Development Assessment Panel:
236Gageler J in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [108], made the following observation on 'judging unreasonableness' in regards to Wednesbury unreasonableness:
Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.
237The plurality of the High Court in Li at [76] stated that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification'.
238In Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59 the Tribunal found at [290]:
Sanders v City of South Perth involved an application for judicial review challenging the validity of the grant of development approval for the construction of a house. The case did not concern a challenge to the validity of a condition of subdivision or development approval and did not consider the formulation of the third Newbury test in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30; (2004) 137 LGERA 232 at [57] (McHugh J) and [155] (Callinan J) or as it was endorsed by the Court of Appeal in Reid v Western Australian Planning Commission [2016] WASCA 181. However, given that the High Court authorities referred to by the Chief Justice postdate Western Australian Planning Commission v Temwood Holdings Pty Ltd, it would seem that the third Newbury test involves 'legal unreasonableness' in the sense discussed in the more recent High Court decisions. A condition of subdivision or development approval will therefore be invalid under the third Newbury test, as understood consistently with the judicial review ground of 'legal unreasonableness', if the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power to impose conditions of planning approval, in the particular circumstances, and thus an inference of legal error may objectively be drawn.
(Emphasis added)[14]
[14] Bunnings Group Limited v Presiding Member of the Metro North West Joint Development Assessment Panel [2019] WASAT 121 at [236] – [238].
In regard to the third test of legal reasonableness, I find that there is insufficient evidence before the Tribunal to determine whether the condition meets this third Newbury test as there is no certainty or finality in the condition, no monetary value attributed to the contribution towards the upgrade of Roberts Street or clarity as to how the contribution will be calculated. Rather, the condition merely states that '[t]he existing Roberts Street carriageway—extending from 10 metres south of the Eyre Highway kerb line to the southern boundary of Lot 3—being upgraded to the specifications and satisfaction of the Shire of Dundas Chief Executive Officer (or delegate)'. Even the proposed condition put forward by the respondent in closing sought only to amend the condition to limit the extent of the upgrade removing the reference to the southern boundary, replacing it with a reference to the southern extent of the proposed development's southern crossover on Lot 3 but with no more certainty or finality than the original condition as to the magnitude of the contribution by the applicant.

Should condition xvii stand?

As already concluded, in the absence of any evidence of the magnitude of the contribution likely to result from condition xvii if imposed or the proposed amended conditions the condition is neither certain nor final. Given the lack of evidence, the Tribunal is unable to determine whether there is a disproportionate burden on the applicant. I do however agree with the applicant that they should not be subjected to a disproportionate burden but rather an appropriate contribution to the Roberts Street upgrade. As I have found at paragraph [43], there is a nexus for a condition that requires a contribution to the upgrade of Roberts Street and that there should be a contribution towards the upgrade of the portion of Roberts Street from the southern extent of the southern crossover, north to a point within 10 metres of the intersection with Eyre Highway.
Chaney J in Tillbrook v Western Australian Planning Commission [2011] WASAT 130 (Tillbrook) at [2] – [3] considered the imposition of conditions for the contribution to a primary school site by the applicant of a subdivision:
2.The Tribunal concluded that while a condition which requires a contribution to a primary school site is, where the proposed development contributes to the need for such a site, capable of serving a proper planning purpose, and fairly and reasonably relating to the proposed development, the approach to calculation of the contribution in relation to this submission could not be said to meet that latter requirement.
3.Accordingly, the Tribunal set aside the decision on the basis that it be replaced with a condition which specified the amount of the contribution, calculated in a way which satisfied the requirement that it fairly and reasonably related to the proposed subdivision.
Similarly, in this case it is my finding that the need for an upgrade to the portion of road from the southern extent of the southern crossover to 10 metres from the Eyre Highway kerb line does serve a planning purpose, reasonably relates to the proposed development and should be imposed. However, in the evidence provided in this case there was no indication as to the magnitude of the proposed contribution to upgrade this portion of the road, from the respondent such that the proposed condition would be considered by the Tribunal to be certain and final.
I find a similar course of action should be undertaken by the Tribunal in this review as that determined by Chaney J in Tillbrook in that condition xvii should not simply be set aside but rather, the fair and equitable contribution of the applicant to the upgrading of the agreed portion of road could be achieved by identifying and incorporating within the condition a specific amount which is required to be paid to meet the contribution. That amount needs to be determined having regard to the changes to the movement pattern of vehicles resulting from the additional development approved by the Shire on 28 June 2022 only.
While the Tribunal accepts that there is disagreement between the parties as to the magnitude of the additional movements, I am convinced by the evidence of the respondent that there will be different and likely additional truck movement as a result of the introduction of truck refuelling onto Lot 3 that would not have occurred otherwise when the approved development on Lot 3 was limited to truck parking only. The Tribunal has not been provided with sufficient evidence to enable the calculation to be undertaken.
The amount needs to be determined having regard to the changes in the patterns of movement as a result of the truck refuelling, acknowledging that there will be the need to tie the new crossovers into the Roberts Street pavement, and that this development approval relates to Lot 3 only and not to Lot 2. A reasonable contribution may be in the order of up to a maximum of 50% of the cost of the upgrade of the portion of Roberts Street from 10 metres south of the Eyre Highway kerb line to the southern extent of the southern crossover to Lot 3 however, that is for consideration between the parties to formulate a certain and final condition. If an agreement cannot be reached the issue may be the subject of a further hearing before the Tribunal.
Accordingly, it is appropriate that the condition be set aside, and in its place there should be a condition requiring the payment of a specified sum to be agreed between the parties in light of these reasons or, failing agreement, determined by the Tribunal following a further hearing.

Condition xviii

Applying the Newbury tests to condition xviii, there is no disagreement between the parties that there is a proper planning purpose for the condition.

Respondent's position

The respondent says that should condition xviii be imposed, the obligation should not be for the applicant to literally maintain the agreed portion of road, but rather that they make a contribution to the road maintenance. That contribution would be commensurate with the proportion of total vehicles on Roberts Street that are identified as Class 3 and above vehicles as defined in the Road Traffic (Vehicles) Regulations 2014 (WA). They say that that measurement would be taken 12 months post-commencement of the truck refuelling use and provided on the last day of the hearing a proposed amended condition from the respondent (with tracked changes) which reads:
(xviii)the registered proprietor of lot 3 entering into a deed of agreement with the Shire of Dundas to make payment to the Shire maintain for the maintenance of the Roberts Street reserve – extending from 10 metres south of the Eyre Highway kerb line to the southern boundary of extent of the developments southern crossover on lot 3 – to the specifications and satisfaction referred to in condition (xvii) fair wear and tear excepted of the Shire of Dundas Chief Executive Officer (or delegate). Such payment being calculated upon the proportion of the Equivalent Standard Axle load of vehicles of MRWA class 3 or above bears to the proportion of the whole Equivalent Standard Axle load using the aforementioned section of Roberts Street, measured 12 months post commencement of the unstaffed fuel facility on lot 3.
(Original emphasis)
Regulation 190 of the Road Traffic (Vehicles) Regulations 2014 (WA) defines a Class 3 vehicle as:
class 3 vehicle means a vehicle —
(a)in respect of which there is non‑compliance with a prescribed requirement that relates to the mass or dimension of the vehicle or its load or the vehicle and its load; and
(b) that is not a class 1 vehicle;
…
And defines a Class 1 vehicle as:
class 1 vehicle means a vehicle —
(a)in respect of which there is non‑compliance with a prescribed requirement that relates to the mass or dimension of the vehicle or its load or the vehicle and its load; and
(b)that is —
(i)a special purpose vehicle; or
(ii)an agricultural machine or agricultural implement; or
(iii)carrying, or designed to carry, a large indivisible item;
and
(c)that is not —
(i)a road train; or
(ii)a B‑double; or
(iii)carrying a freight container designed for multi‑modal transport;[15]
…
[15] Road Traffic (Vehicles) Regulations2014 (WA), reg 190.
The respondent's position is that the condition of Roberts Street is being impacted by truck movements and they provided photographs and evidence that the current condition of Roberts Street was substandard due to the damage caused by trucks. The increase in truck movements that the respondent anticipates as a result of the truck refuelling will, they say, mean that ongoing maintenance will be required however the extent of that maintenance and magnitude of contribution required from the applicant was not quantified.

Applicant's position

In regard to the second Newbury test, nexus, the applicant argues that there is not a clear relationship between the condition and the proposed development. They say that there is no clarity in attributing the wear and tear of Roberts Street specifically or in its totality to the additional use of truck refuelling on Lot 3.
The applicant was at pains to point out that this amended condition had come on the last day of the hearing prior to closing submissions from both parties, such that there had been no opportunity for the applicant to have an opportunity to consider the amendments or for the Tribunal to hear from the witnesses in relation to the amended conditions. Consequently little weight can be given to the proposed amended conditions.
The applicant asserts that there are issues with condition xviii in its original and amended form as the condition should not include any existing truck traffic for the existing service station on Lot 2 and truck parking use on Lot 3.
Some of those trucks would be using Lot 2 only, and would have no relationship at all to Lot 3. Some of them were existing trucks that are using Lot 3 that will continue to use Lot 3. While the applicant submits that any such condition could only be in relation to any increased number of trucks over the existing number, of which they say there is no evidence before the Tribunal to make any finding in relation to that, which is a problem with the condition.

Should condition xviii stand?

I find that condition xviii in both its original and amended form, is neither final nor certain and not unlike condition xvii, also relies on the final contribution being to the satisfaction of the Shire's Chief Executive Officer or delegate.
In addition, Roberts Street does not terminate at the southern boundary of Lot 3 and extends towards the town centre meaning there is also likely to be traffic that is not related to the development which utilises the portion of road to which this condition relates.
The difficulty I see with the respondent's contention that there should be contribution to maintenance and in the manner outlined in the original and amended form, is threefold.
Firtsly, Roberts Street is a public road that continues south towards the Norseman townsite and as such not all Class 3 and above truck traffic on Roberts Street, even for this limited portion, may be attributed to the additional truck refuelling.
Secondly, unlike other cases reviewed by the Tribunal including that dealt with in Carbone Bros Pty Ltd v Shire of Harvey[16] which required a financial contribution to maintenance of a road based on the load, volume of material extracted from a quarrying industry and carried by that applicant's vehicles, the ability to accurately identify the volume and impact of the trucks visiting Lot 3 on the wear and tear of the agreed portion of Roberts Street is not certain.
[16] Carbone Bros Pty Ltd v Shire of Harvey (2014) 202 LGERA 455 (Jenkins J) confirmed on appeal Carbone Bros Pty Ltd v Shire of Harvey (2015) 49 WAR 400 (McLure P, Murphy JA and Corboy J).
Thirdly, Roberts Street is a public road and the trucks utilising Lot 3 for refuelling are public vehicles driving on a public road over which the applicant has no control, as the trucks are not vehicles owned by the applicant but rather are merely visiting the subject land. The applicant has no control over how many vehicles, their size or whether they are Class 3 and above, their load or how they drive on Roberts Street to visit a use that has been approved by the Council of the respondent as an appropriate use for the subject land.
I therefore find I am persuaded by the evidence of the applicant that condition xvii while having a planning purpose, has little nexus with the proposed development as the trucks refuelling on Lot 3 are public vehicles travelling on a public road and are not vehicles that are under the control of the applicant. Trucks causing damage to this section of Roberts Street may not be attributed to the subject site.
For these reasons I find that condition xviii does not have sufficient nexus with the truck refuelling and is not certain or final in this case and therefore should not be imposed.

Conclusion

The purpose of this review, under s 27(2) of the SAT Act, is 'to produce the correct and preferable decision at the time of the decision upon the review' and the Tribunal in considering the material before it must form its own view, in the exercise of discretion, as to whether conditions xvii and xviii should stand in this case.
The Tribunal, having considered the substantial merits of this case, taking into account the relevant matters for consideration, finds that condition xvii should be set aside and in its place there is to be a condition which requires the applicant to make a contribution towards the upgrade of that portion of Roberts Street carriageway extending from 10 metres south of the Eyre Highway kerb line to southern extent of the southern crossover to Lot 3, in an amount to be agreed by the parties, or if not agreed, to be determined by the Tribunal following a further hearing. The review of condition xviii is allowed and the condition is deleted.

Orders

The Tribunal orders:
1.The application for review of conditions xvii and xviii of the respondent's approval dated 28 June 2022 is allowed.
2.Condition xvii is set aside and in its place there is to be a condition which requires the applicant to make a contribution towards the upgrade of that portion of Roberts Street carriageway extending from 10 metres south of the Eyre Highway kerb line to southern extent of the southern crossover to Lot 3, in an amount to be agreed by the parties, or if not agreed, to be determined by the Tribunal following a further hearing.
3.Condition xviii is deleted.

4.The application is adjourned for directions at 9.30 am on 13 December 2023 at 565 Hay Street, Perth, Western Australia in order to further programme the matter.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R Lavery, MEMBER
8 DECEMBER 2023