PROSSER and CITY OF BUNBURY

In this matter, the respondents, Prosser, sought judicial review of a decision of the first respondent, the City of Bunbury, which required the applicants to contribute 50% of the cost of upgrading a footpath located adjacent to the boundary of their site, as a condition of development approval. The development concerned was the conversion of a former warehouse into a showroom for motor vehicles and related equipment. The applicants argued that the condition was unlawful because it involved imposing a levy for infrastructure or facilities, contrary to regulation 73(1) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), and that it did not fairly and reasonably relate to the development, contrary to the second Newbury test.

The court considered whether the condition requiring the applicants to contribute to the cost of upgrading the footpath was lawful in the absence of a development contribution plan, and whether it involved levying a contribution for infrastructure or facilities contrary to regulation 73(1). The court noted that the imposition of a condition requiring a developer to contribute to the cost of infrastructure or facilities was a common practice in planning schemes. However, the court also noted that the imposition of such a condition was not absolute and that it must fairly and reasonably relate to the development. The court further noted that the second Newbury test required a sufficient nexus between the condition and the development.

The court held that the condition was lawful and did not involve levying a contribution for infrastructure or facilities contrary to regulation 73(1). The court found that the condition was a reasonable and proportionate response to the impact of the proposed development on the adjacent footpath. The court also held that the condition fairly and reasonably related to the development and satisfied the second Newbury test. The court found that there was a sufficient nexus between the condition and the development, as the proposed development would increase the use of the adjacent footpath and therefore it was reasonable for the applicants to contribute to the cost of upgrading the footpath. The court dismissed the application for judicial review.

The court found that the decision of the City of Bunbury to impose the condition was lawful and did not involve levying a contribution for infrastructure or facilities contrary to regulation 73(1). The court held that the condition fairly and reasonably related to the development and satisfied the second Newbury test. The court dismissed the application for judicial review and ordered that the respondents pay the costs of the first and second respondents.