Re Environmental Protection Authority
[2002] WASCA 75
•8 APRIL 2002
RE ENVIRONMENTAL PROTECTION AUTHORITY; EX PARTE SANDBOURNE HOLDINGS PTY LTD & ANOR [2002] WASCA 75
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 75 | |
| THE FULL COURT (WA) | |||
| Case No: | CIV:1425/2001 | 3 SEPTEMBER 2001 | |
| Coram: | MALCOLM CJ STEYTLER J EINFELD AJ | 8/04/02 | |
| 46 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi for writ of prohibition and interlocutory injunction discharged | ||
| A | |||
| PDF Version |
| Parties: | SANDBOURNE HOLDINGS PTY LTD THE CITY OF SWAN ENVIRONMENTAL PROTECTION AUTHORITY |
Catchwords: | Administrative law Prohibition Return of order nisi prohibiting Environmental Protection Authority ("EPA") from considering a proposed subdivision when the proposal was in accordance with a proposed town planning scheme ("TPS 14") previously considered by the EPA While the subdivision was in accordance with TPS 14 it was not a proposed subdivision as it contained no plan of subdivision No plan of the subdivision currently proposed had been approved by the Western Australian Planning Commission under s 20(1)(a) of the Town Planning and Development Act TPS 14 merely provided a framework within which subdivision could be planned and developed Amendment 262 to a further town planning scheme ("TPS 9") did not contain a plan of the proposed subdivision The proposal considered by the EPA in 1989 did not involve a plan of the subdivision the subject of the application by the applicant in 2000 |
Legislation: | Environmental Protection Act 1986 (WA), s 3, s 38, s 40, s 46(6) Planning Legislation Amendment Act 1996 (WA), s 12 Town Planning and Development Act 1928 (WA), s 20(1)(a), s 20(5) Town Planning Regulations 1967 (WA), reg 3 |
Case References: | Nil Bull & Ors v A-G (NSW) (1913) 17 CLR 370 City of South Perth v Fairway Heights Pty Ltd [1981] WAR 51 Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority & Anor; Ex parte Coastal Waters Alliance of Western Australia (1996) 90 LGERA 136 Costa v Shire of Swan [1983] WAR 22 Environmental Protection Authority & Ors; Ex parte Chapple (1995) 89 LGERA 310 Falc Pty Ltd & Anor v State Planning Commission (1991) 5 WAR 523 Marshall v Director General, Department of Transport [2001] HCA 37; 75 ALJR 1218 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE ENVIRONMENTAL PROTECTION AUTHORITY; EX PARTE SANDBOURNE HOLDINGS PTY LTD & ANOR [2002] WASCA 75 CORAM : MALCOLM CJ
- STEYTLER J
EINFELD AJ
EX PARTE
SANDBOURNE HOLDINGS PTY LTD
First Applicant
THE CITY OF SWAN
Second Applicant
Catchwords:
Administrative law - Prohibition - Return of order nisi prohibiting Environmental Protection Authority ("EPA") from considering a proposed subdivision when the proposal was in accordance with a proposed town planning scheme ("TPS 14") previously considered by the EPA - While the subdivision was in accordance with TPS 14 it was not a proposed subdivision as it contained no plan of subdivision - No plan of the subdivision currently proposed had been approved by the Western Australian Planning Commission
(Page 2)
under s 20(1)(a) of the Town Planning and Development Act - TPS 14 merely provided a framework within which subdivision could be planned and developed - Amendment 262 to a further town planning scheme ("TPS 9") did not contain a plan of the proposed subdivision - The proposal considered by the EPA in 1989 did not involve a plan of the subdivision the subject of the application by the applicant in 2000
Legislation:
Environmental Protection Act 1986 (WA), s 3, s 38, s 40, s 46(6)
Planning Legislation Amendment Act 1996 (WA), s 12
Town Planning and Development Act 1928 (WA), s 20(1)(a), s 20(5)
Town Planning Regulations 1967 (WA), reg 3
Result:
Order nisi for writ of prohibition and interlocutory injunction discharged
Category: A
Representation:
Counsel:
First Applicant : Mr D W McLeod & Mr C A Slarke
Second Applicant : Mr D W McLeod & Mr C A Slarke
Respondent : Mr R M Mitchell
Solicitors:
First Applicant : McLeod & Co
Second Applicant : McLeod & Co
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
(Page 3)
Case(s) also cited:
Bull & Ors v A-G (NSW) (1913) 17 CLR 370
City of South Perth v Fairway Heights Pty Ltd [1981] WAR 51
Coastal Waters Alliance of Western Australia Inc v Environmental Protection Authority & Anor; Ex parte Coastal Waters Alliance of Western Australia (1996) 90 LGERA 136
Costa v Shire of Swan [1983] WAR 22
Environmental Protection Authority & Ors; Ex parte Chapple (1995) 89 LGERA 310
Falc Pty Ltd & Anor v State Planning Commission (1991) 5 WAR 523
Marshall v Director General, Department of Transport [2001] HCA 37; 75 ALJR 1218
(Page 4)
- MALCOLM CJ:
Order nisi
1 This is the return of an order nisi for a writ of prohibition made by Miller J dated 30 March 2001 by which the learned Judge ordered that:
1. The Environmental Protection Authority ("the EPA") do show cause before this Court why a writ of prohibition should not be issued against it on the grounds set out in par 3 of the order prohibiting it from considering the proposed subdivision of Lots 300 – 303, 14 and 15 Beringarra Avenue, Malaga, by the first applicant ("the Subdivision") pursuant to s 40 of the Environmental Protection Act 1986 (WA) ("the EP Act").
2. The EPA be restrained from taking any further step to consider or assess the Subdivision until the final determination of the application for the writ of prohibition.
3. The grounds of the application are as follows:
(a) The Subdivision is in accordance with the provisions of the City of Swan Town Planning Scheme No 14 – Malaga Industrial Area Development Scheme ("TPS 14") which guide the subdivision and development of the TPS 14 Scheme Area.
(b) TPS 14 was referred to the EPA pursuant to s 38 of the EP Act in 1990 and was subsequently considered for assessment under s 40 of the Act.
(c) The land the subject of the Subdivision was rezoned in 1996 to facilitate the Subdivision without comment from the EPA.
(d) The Subdivision involves the same proposal already referred to the EPA in 1990 in the context of its consideration of TPS 14 pursuant to s 40 of the EP Act, and upon which the EPA did not comment in the context of the rezoning of the subject land in 1996.
(e) Section 38(5) of the EP Act precludes the EPA from considering or assessing the Subdivision in the circumstances.
(Page 5)
- "The EPA be restrained from taking any further step to consider or assess the Subdivision, other than to determine whether or not the Subdivision should be assessed by it under Part IV of the Environmental Protection Act 1986, and informing the proponent and any relevant decision making authority of that determination pursuant to s 40(1) of that Act, until the final determination of the application for Writ of Prohibition."
3 Subsequently, pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 and by consent, it was ordered that:
1. The City of Swan be joined as second applicant.
2. Sandbourne Holdings Pty Ltd be designated as the first applicant.
3. There be no order as to costs with respect to the joinder of the City of Swan.
Statutory provisions
4 The purpose of the proceedings is to prohibit the EPA from considering or assessing the Subdivision pursuant to s 40 of the EP Act. Section 40 is in Pt IV of the EP Act which deals with Environmental Impact Assessment. Section 38(1) and (2) of the EP Act as it stood prior to amendment in 1996 provided that:
"(1) A proposal that appears likely, if implemented, to have a significant effect on the environment, or a proposal of a prescribed class –
(a) shall be referred in writing to the Authority by a decision-making authority as soon as that proposal comes to the notice of the decision-making authority; and
(b) may be referred in writing to the Authority by –
(i) the proponent; or
(ii) any other person.
(Page 6)
5 The definition of "proposal" in s 3 of the Act is:
" 'proposal' means project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing."
- I note that by the Planning Legislation Amendment Act 1996 (WA) ("the 1996 Amendment Act") the definition of proposal was amended by adding after the word "foregoing" the following:
", but does not include scheme."
" 'proposal under an assessed scheme' means application under the assessed scheme or an Act for the approval of any development or subdivision of any land within the area to which the assessed scheme applies."
- These amendments seem to be calculated to deal with the issues which arose in this case, but they have no application. The issue whether TPS 14 was a proposal for subdivision is to be determined in accordance with the law as it stood prior to the 1996 amendments.
7 It was contended on behalf of the applicants that the proponent of the relevant proposal was the City.
8 Section 38(3), (4), (5) and (6) of the EP Act provided that:
"(3) The Authority shall, if –
(a) it considers that a proposal is likely, if implemented, to have a significant effect on the environment; or
(b) a proposal is of a prescribed class,
require a decision-making authority or proponent to refer in writing the proposal to the Authority within such period as is specified in that requirement.
(4) A decision-making authority or proponent which or who is required under subsection (3) to refer a proposal to the Authority shall comply with that requirement.
(Page 7)
- (5) Subject to section 46(6), a proposal shall be referred once only to the Authority under this section.
(6) The Minister shall, after consulting the Authority, nominate by notice in writing served on –
(a) the person concerned;
(b) the Authority; and
(c) any relevant decision-making authority,
a person as being responsible for each proposal which is referred or required to be referred, or which ought to be referred, under this section."
9 Section 46(6) makes a specific exception to s 38(5) in the context of an appeal. This has no application to the present case.
10 Section 40(1)(a) provides for what the EPA is to do if it considers that the proposal should not be assessed by it under Pt IV of the Act. Section 40(1)(a) provides that:
"When a proposal is referred to the Authority under section 38, the Authority shall –
(a) if it considers that the proposal should not be assessed by it under this Part, so inform in writing within 28 days after that referral –
(i) the proponent;
(ii) if the proposal is not so referred by the proponent, the person by which or whom it is so referred; and
(iii) any relevant decision-making authority,
but may nevertheless give advice and make recommendations to any relevant decision-making authority on the environmental aspects of the proposal;"
11 Section 40(1)(b) provides that:
"if it considers that the proposal should be assessed by it under this Part –
(Page 8)
- (i) so inform in writing within 28 days after that referral –
(A) the proponent;
(B) if the proposal is not so referred by the proponent, the person by which or whom it is so referred; and
(C) any relevant decision-making authority;
and
(ii) assess the proposal."
12 The remaining subsections of s 40 deal with the powers of the EPA for the purposes of assessing a proposal, including such provisions as in subs (7), the conduct of a public inquiry by a committee appointed under s 40(2)(c).
The applicants' case
13 The primary contention of the applicants was, as set out in the grounds, that the Subdivision was previously the subject of a proposal referred by the City to the EPA under s 38 and approved. The basis for this contention was that the Subdivision was incorporated in or contemplated by the draft of TPS 14, which had been previously referred to the EPA by the City under s 38 of the Act and the EPA had then indicated that the environmental impact of the proposal did not require formal assessment and setting of formal conditions. Consequently, it was submitted that s 38(5) applied and Sandbourne was not required to submit the proposal a second time and the EPA had no power to assess the proposal. It was also submitted that the purported reference to the EPA by the Department of Environmental Protection ("DEP") was contrary to s 38(5) and of no effect.
14 The Subdivision as proposed is of Lots 300 – 303, 14 and 15 Beringarra Avenue, Malaga ("the subject land") which are situated within the City of Swan ("the City"), the second applicant. The applicants are the proponents of the Subdivision. The first applicant, Sandbourne Holdings Pty Ltd ("Sandbourne") is, for all practical purposes, the owner of the land in the Subdivision application. The City is the "responsible authority" for the subdivision and development of the land in the Scheme Area of TPS 14. An application dated 16 January 2000 for approval of the Subdivision was duly made on behalf of Sandbourne to the Western Australian Planning Commission ("WAPC").
(Page 9)
15 Ordinarily, under s 38(1) of the EP Act, where it appears likely that a proposal, if implemented, would have a significant effect on the environment, the proposal would be referred to the EPA. In this case, however, it was contended by the applicants that the Subdivision was contained within the Scheme Area of TPS 14, which itself had previously proposed the subdivision of the whole of the land in the Scheme Area, including the subject land; TPS 14 had been referred to the EPA in 1990; and the proposal had been dealt with by the EPA pursuant to s 40 of the EP Act, consequently there was no basis for a further referral to the EPA by reason of s 38(5) of the EP Act.
Town Planning Schemes 14 and 9
16 The subject land is situated within the Scheme Area of TPS 14. The land within the Scheme Area of TPS 14 was zoned "Industrial" under the Metropolitan Region Scheme ("MRS") in or about 1975 following a full public hearing by the then Metropolitan Region Planning Authority. On 7 November 1985 the City of Swan Town Planning Scheme No 9 ("TPS 9") was published in the Government Gazette. Under TPS 9 the relevant land the subject of TPS 14 was zoned as "industrial development". That land was on the South East Corner of the Scheme Map of TPS 14 and included the subject land which fronts the north and south sides of Beringarra Avenue, Malaga.
17 The introduction of the Report concerning Amendment No 262 to TPS 9 states that:
"This report has been prepared in support of the proposed rezoning of Lots 1-5, 12, 21, 22, 88, 301-303, 310-315 and 608 Beringarra Avenue, Malaga from 'Industrial Development Zone' to a mix of 'General Industrial', 'Public Purpose', 'Highway Service', 'Service Station' and 'General Commercial' zones. The amendment will allow the comprehensive redevelopment of the Southern Private Development Area, comprising all of the aforementioned lots, as identified in the Shire of Swan's East Malaga Industrial Development Scheme Town Planning Scheme No 14. The East Malaga Industrial Development Scheme was gazetted on September 7, 1990.
As per the recommendation adopted by the Shire of Swan at their Council meeting of 23rd August, 1995, this requires the modification of the Shire of Swan's District Zoning Town
(Page 10)
- Planning Scheme No 9 which currently zones the land 'Industrial Development Zone'.
Rezoning will facilitate future land use in accordance with Council requirements, defining of the land into smaller precincts providing a variety of 'Light Industrial', 'Service Commercial Showroom', 'Public Purpose', 'General Industrial', 'Retail Commercial', and 'Service Station' uses.
Accompanying this rezoning report is a modified Outline Development Plan which more accurately reflects the intended use of the land, providing a broader variety of lot sizes which can accommodate a greater range of uses and reflects a design that is sensitive to market requirements. The report as submitted, also describes the Outline Development Plan and stage one of subdivision.
The amendment of the District Zoning Scheme specifically addresses the rezoning of the land incorporating the Southern Private Development Area and reflects agreed reservation modifications for Malaga Drive at its intersection with the Reid Controlled Access Highway."
18 It will be noted that the lots the subject of the rezoning do not include Lot 300 which remains in the Industrial Development Zone. I assume that Lots 1-5 referred to above are one and the same as the Part Lots 1-5 depicted as forming part of the subject land and are the same land as Lots 14 and 15 referred to in the order of Miller J. The modified Outline Development Plan does not incorporate a plan of subdivision of the subject land.
19 Section 2.0 of the text to Amendment 262 makes it clear that, while the development standards of TPS 9 apply to the use and development of the TPS 14 Scheme Area, "a Subdivision Plan was prepared for the Southern Private Development Area". The history then records that:
"In conjunction with the new Scheme, a Subdivision Plan was prepared for the Southern Private Development Area. At the time this plan formed the basis for the intended subdivision of the land. In dealing with the proposal, the Council resolved to place the subdivision on hold, pending the finalisation of Scheme 14. The subdivision plan proposed a range of lot sizes predominantly focusing on an east-west road pattern. This plan has formed the basis for, and has been adopted as part of the
(Page 11)
- Structure Plan for Scheme 14. In doing so, Council has previously basically accepted the principles suggested by that plan which included a service station site of 2,150m2, a commercial centre site of 6,000m2 and a variety of industrial sized lots ranging up from 1,000m2.
Since the finalisation of Scheme 14 and as a result of subsequent discussions with Council staff, an Outline Development Plan was prepared which more particularly represents the future development objectives for the Southern Private Development Area. The plan had been produced to satisfy the provisions of Council's Town Planning Scheme No 9 relating to subdivision and development within the Industrial Development Zone.
The Outline Development Plan and rezoning request was submitted to the Shire of Swan in 1991 with Council resolving to advertise the Plan subject to a series of queries in September, 1991. The principal concern of Council related to justifying the development of commercial land within the subdivision. A response to these queries now forms part of this report.
The subdivision of this land is now possible under the existing Scheme provisions, subject to the Outline Development Plan being supported by both Council and the West Australian Planning Commission.
The landowners within the Southern Private Development Area are, therefore, keen to progress with the subdivision and sale of the land, given that considerable delays have already incurred [sic] since the original subdivision application (SPC 77216) was lodged. In respect to this it would now be appropriate to expedite the subdivision and development of the land by allowing the further rezoning of the land to run concurrent with the subdivisional process, sale of land and building development, a factor which previously had Council staff support. All of these processes can be undertaken concurrently in accordance with the existing Scheme provisions outlined for the Industrial Development Zone and in keeping with the standards for the proposed zones."
20 The "Subdivision Plan" referred to in the first paragraph was not put in evidence.
(Page 12)
21 Mr Lumsden, the Chief Executive Officer since 1989 and former Director of Planning and Development of the City from 1984 – 1989, says in par 21 of his affidavit that upon the coming into operation of TPS 9 the land within the Scheme Area of TPS 14 was zoned "Industrial Development". In order to remove the necessity for Outline Development Plans to be prepared progressively as land within the Scheme Area of TPS 14 came forward for subdivision, Amendment 262 to TPS 9 was proposed. The amendment was adopted on 23 August 1995 and approved by the Minister for Planning on 20 January 1997.
22 By a letter dated 11 September 1996 the DEP said that it considered that:
"… the environmental issues associated with the proposal may be adequately managed by the proponent in consultation with relevant agencies, within the context of environmental management policy and by the setting of appropriate conditions through the planning approval process."
- It was also made clear that the DEP and the EPA would expect that:
"… appropriate measures will be taken to ensure that no detrimental effects occur to the environment."
24 In par 22 of his affidavit Mr Lumsden says that:
"In order to remove the necessity for Outline Development Plans to be prepared progressively as land within the Scheme Area of TPS 14 came forward for subdivision, in 1996 the rezoning of the Subject Land was proposed in Amendment No 262 to the District Zoning Scheme. The Scheme Amendment document for Amendment No 262 is annexed hereto and marked 'EWTL8'."
- Exhibit EWTL8 commences at p 46 of the Application Book. The document at that page is the amendment as adopted by resolution of the Council dated 23 August 1995. It concludes at p 75 of the Application Book. It is followed on p 76 by a copy of a letter dated 7 March 1995 from Main Roads to BSD Consultants Pty Ltd confirming the sale of Lots 19 and 20 Truganina Road, Malaga to Sandbourne as depicted on an attached drawing on p 77. On p 78 is a plan depicting the subject land and
(Page 13)
- incorporating a plan of subdivision. There is nothing on the document as copied in the Application Book to specifically connect it to the amendment and no evidence regarding its status as an Outline Development Plan or otherwise. It is followed at p 79 by a second but slightly different copy of Amendment No 262 comprising the resolution adopting the amendment on pp79-80, the existing and proposed zoning on p 81 and the final approval on p 82. On the same page there is a notation that final approval of the Amendment was endorsed by the Minister for Planning on 20 January 1997.
25 I have examined the actual exhibit EWTL8 to the affidavit of Mr Lumsden. This is also a photocopy. The exhibit constitutes a "Revised Outline Development Plan" for the "East Malaga Industrial Estate" incorporating a plan of subdivision for the subject land. It is not possible to discern from the actual exhibit when the plan was prepared, although it was prepared by BSD. What is clear is that both in terms of layout of the roads and in terms of lot numbers and sizes the plan of subdivision in the Revised Outline Development Plan is very different from the Subdivision as proposed by Sandbourne for the subject land which accompanied the application for approval of the Subdivision dated 28 August 2000 and which is exhibit JLS3 to the affidavit of Ms Smithson on behalf of the applicants sworn on 29 March 2001.
26 It was submitted on behalf of the applicants that the significance of Amendment 262 in the present context was that it changed the zoning of the subject land from industrial development to specific industrial related zones and "as a consequence it was no longer necessary to relate development to an outline development plan". This was said to be so because the structures that an outline development plan is required to put forward had been put in place because "they had specific zoning and the need for an outline development plan was superseded". I am unable to accept that proposition if it suggests that there was no need for Sandbourne to prepare a detailed plan of subdivision and submit that to the WAPC for approval with the consequence that the proposed subdivision might be referred to the EPA for assessment.
27 TPS 14 is a planning scheme of a kind commonly known as a "guided development scheme". In Western Australia there are two broad categories of local government town planning schemes, namely, zoning schemes by which every local government classifies and zones land within its local government district and development schemes. Regulation 3 of the Town Planning Regulations 1967 (WA) defines the term "development scheme" to mean:
(Page 14)
- "a Scheme that involves one or more of the following —
(a) works;
(b) constructions;
(c) alteration of boundaries,
but does not include a Scheme that involves the zoning or classification of land;"
28 As explained by Mr Lumsden, TPS 14 provides guidance for the progressive subdivision and development of the Scheme Area in accordance with the General Objects of the Scheme and in particular the first object in par 2.1(a), namely:
"To plan, facilitate and encourage the progressive subdivision and development of the land within the Scheme Area for industrial and other purposes."
29 Notice of the intention of the City to prepare an industrial development scheme for the TPS 14 area was first given to the EPA under cover of a letter to the EPA dated 1 June 1989 together with a copy of the Scheme Map.
The EPA's response to TPS 14
30 The EPA replied to the City by letter dated 12 June 1989. That letter set out a number of matters that the EPA believed "should receive careful consideration during preparation of the Scheme", namely:
"1. DRAINAGE DESIGN
There are a number of low lying wetland areas to the east of the proposed scheme area. Although these wetlands are semi-degraded, they are suitable for rehabilitation to important landscape features as well as retaining a drainage function. Land use planning in the scheme area should take this into account in the form of appropriate landscaping and drainage strategies, giving consideration to both water quantity and quality. The EPA would support development design features which encourage reduced per capita water consumption, increased water retention and groundwater recharge at source.
(Page 15)
- As the area lies within the Gnangara Underground Water Pollution Control Area and one of the Public Water Supply Areas, appropriate planning to ensure protection of the water resource is essential. This should include limitations on groundwater usage from private bores in the area and also appropriate control mechanisms for land use, stock numbers and effluent disposal, the object being to protect the water resource from pollution and depletion.
2. REVEGETATION PROGRAMMES
As the scheme area lies on the Bassendean Sands where soil stability is poor and the majority of the land is cleared, the Authority suggests that a revegetation programme be integrated into your Town Planning Scheme. This would involve not only the re-establishment of native vegetation but also the retention of existing vegetation. Any potential erosion and dust problems could be minimised by such an exercise.
3. PROXIMITY TO INDUSTRIAL AREAS
To the east of the proposed scheme area is an area zoned General Industry. This zone may impose limitations on development in the scheme area in terms of dust and noise pollution. The effects of this industrial area should be addressed in land use planning with consideration given to the inclusion of a buffer zone between incompatible land uses.
4. DEVELOPMENT
In reference to previous land development to the north-east of the scheme area on Beach Road, the Authority noted a number of problems that arose. These were as follows:
(i) Total removal of existing vegetation.
(ii) Flooding during site dewatering for drainage control.
(iii) Dust pollution of nearby housing and industrial areas.
(iv) Wetland encroachment and destruction.
Future development within the scheme area will require onsite investigation and controls to limit any potential problems experienced with the previous development. Consideration of
(Page 16)
- appropriate noise and dust controls during development is of special concern. It may be necessary to prevent clearing during the drier months (ie October through to April) adopt staged clearing procedures and/or undertake seeding or hydromulching of the soil.
I do trust the preceding comments will be helpful to your planning considerations and that if you feel the Authority could advise further in these matters you would not hesitate to contact us."
31 The letter was drafted by Ms M J Andrews, then an Environmental Officer in the Evaluation Division of the EPA. In her affidavit she says that at that time most of the advisory functions now performed by the Department were undertaken by officers engaged to assist the EPA. Reference was made to a letter from the then Shire of Swan, which had notified by letter dated 1 June 1989 its intention to prepare TPS 14 and requested advice on any matters that should be considered in preparing the scheme. The supporting information provided by the Shire was limited to an A3 cadastral plan showing the then existing lots on the land to be the subject of the proposed scheme, including the subject land. There was no plan of subdivision.
32 Ms Andrews' affidavit continues as follows:
"4. The notation 'correspondence' on the Shire of Swan letter at annexure MJA1 to this affidavit indicates that the letter was not treated as a referral under Part IV of the Environmental Protection Act 1986 ('the EP Act'). Rather, it was the subject of correspondence providing general advice as requested.
5. I was the employee at the EPA responsible for reviewing the Shire's letter and drafting a response to be signed by another more senior employee at the EPA. Annexed hereto and marked MJA2 is a true copy of a letter dated 12 June 1989, providing that advice. That file copy of the letter indicates that I drafted the letter, which was signed by Jim Malcolm on behalf of Rob Sippe, A/Director, Evaluation Division.
6. I note from the file that in the letter which is annexure MJA2 provided [sic] advice on matters which I considered should be addressed during preparation of the
(Page 17)
- scheme. These matters were drainage design (including wetland rehabilitation and groundwater protection), revegetation programmes, proximity to existing industrial area, and problems with previous land developments in the area. I did not regard this advice as involving an assessment of an existing proposal, but as providing advice as to the matters which should be considered as a future proposal was developed.
- 7. I have only a very vague recollection of my review of the Shire's letter, and do not recall the specific investigations I undertook before finalising my review and drafting the response to the Shire. However, I do recall the general approach taken at the time when the EPA received a request such as this, seeking input to the preparation of a proposal to amend a Scheme. The usual approach was to assist the planning agency in identifying the likely environmental issues affecting the site, and provide preliminary advice on whether the proposed land use might be incompatible, or alternatively the environmental issues could be addressed through appropriate design and management.
8. The main sources of information were relevant Government publications and policies (eg System 6 Red Book for identifying areas with regional conservation value), Water Authority maps for identifying groundwater protection areas, aerial photographs, related EPA files, and other EPA employees with specialist knowledge. A site inspection would only be undertaken at this stage if there was a significant gap in the information considered necessary to advise the relevant planning agencies.
9. I cannot recall exactly what I referred to in providing advice to the Shire, but I would expect I would have considered groundwater protection areas, the System 6 Red Book and an aerial photograph. My focus was on the general concept of changing land classification, and not on a proposal to subdivide the land. I do not believe that I would have understood the Scheme to constitute a proposal to subdivide the land."
(Page 18)
33 By a letter dated 15 December 1989 the Department of Planning and Urban Development informed the Chairman of the EPA that the Shire had requested approval to advertise TPS 14 and sought advice of any additional comments the EPA had about the Scheme "which should be taken into account prior to its finalisation". Subsequently, on 15 January 1990 the EPA received a document entitled "Town Planning Scheme Available for Inspection" from the Shire. This was a notice that the Shire had prepared TPS 14 for the purposes of, among other things:
"(k) To establish some standards for the development of land within the Scheme Area;
(l) To allow for and make provision for subdivision and development of land by owners privately and provision for contribution for shared works and facilities;
(m) To make provision within the Scheme Area for such of those matters set out in the First Schedule of the Act as are necessary or incidental to the good and effective planning, subdivision and development of an industrial development scheme;
(n) To improve and secure the amenity, health and convenience of the Scheme Area and to make provision for works calculated to achieve those ends."
- Submissions in writing were invited to be lodged with the Chief Executive on or before 5 April 1990.
34 As to the notation "correspondence" on the Shire's letter dated 29 March 1990 and Ms Andrews' assertion that the letter was not treated as a referral under Pt IV of the EP Act, the notation is not reproduced on the copy of the letter exhibited to the affidavit. Further, the letter dated 15 December 1989 from the Secretary of the Department of Planning and Urban Development to the Chairman of the Authority specifically requested:
"… any additional comments you may have about the Scheme which should be taken into account prior to its finalisation."
35 Ms Andrews also says that there was on the file what she describes as a "Filtering Sheet" dated 16 January 1990 which is headed up "RECORD OF S38 REFERRALS FROM FILTERING COMMITTEE". This refers to the "Assessing Officer" as "MA" which appears to be a reference to Ms Andrews. Under a reference to "ASSESSMENT
(Page 19)
- RECOMMENDATION TO CHAIRMAN" a box has been ticked indicating that "Referral will be assessed at internal level". In relation to action required there is a printed notation "Standard letters sent by filtering committee to" followed by "Referor 6 DPUD 5". A box was then completed indicating that the Evaluation Division was the "Lead Division" for the referral. The form is signed on behalf of the Filtering Committee.
36 I have already set out the comments of Ms Andrews in par 7 of her affidavit in which she says she only had a "vague recollection" of her review of the Shire's letter and does not recall the investigation. She describes the general approach at the time and the usual approach then adopted. She does explain that her focus was on the general concept of changing land classification and not on a proposal to subdivide the land. She does not believe that she would have understood TPS 14 to constitute a proposal to subdivide the land. As against that, it has already been seen that cl 3.1.1 – cl 3.3 of the Scheme in Pt IV were headed "Subdivision and Development". Clause 3.1.1 made it clear that the Scheme Map formed a basis for the development of the Scheme Area. Clause 3.1.2 provided that:
"As and when an Owner subdivides or develops his land such subdivision or development shall be consistent with the Scheme Map."
- As a matter of fact, however, the Scheme Map did not incorporate a proposed plan of subdivision. It only designated the boundaries of the Scheme Area and the basic road system and identified the areas which it was contemplated would be subdivided.
37 Ms Andrews refers to the "Filtering Sheet" dated 16 January 1990 in pars 12 to 17 of her affidavit as follows:
"12. Also on the EPA file is a 'Filtering Sheet' dated 16 January 1990, formally entitled 'Record of s38 Referrals from the Filtering Committee', annexed hereto and marked MJA5. The Filtering Committee was comprised of two or three public sector employees who made recommendations to the Chairman of the EPA who had delegated authority from the EPA to decide whether a proposal would be assessed under Part IV of the EP Act, and if so the level of assessment. The fact that a filtering sheet was completed in relation to TPS 14 Annexure MJA4 was treated by the Filtering Committee as a
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- referral of a proposal under section 38 of the EP Act. The Filtering Sheet also indicates that the recommendation of the Filtering Committee to the EPA was that the referral be assessed at internal level. At that time it was understood within the EPA that a proposal assessed at internal level would not be assessed under Part IV, but the proposal would be reviewed by employees at the EPA and advice would be provided in relation to the proposal. The Filtering Sheet indicates a recommendation that standard letters conveying this proposed decision be sent to the Shire of Swan and the Department of Planning and Urban Development.
- 13. The general practice at the EPA in 1990 was that a referral such as that contained in Annexure MJA4 to this affidavit would go to the Filtering Committee at first instance on its own, without any background information. The Filtering Committee would make a recommendation to the EPA, noted on the Filtering Sheet, as to whether or not the proposed should be assessed and, if so, the level of assessment. The EPA or its delegate would then ordinarily make a decision, and the referral would be forwarded to an employee at the EPA, called the 'assessing officer' for action.
14. In the case of the proposal to make TPS 14, the Filtering Sheet indicates that I was designated the assessing officer for the referral. The Filtering Committee would not necessarily have approached me before making this recommendation, and I can't now recall whether they did so.
15. The EPA file does not carry any notation of a decision made by the EPA or its delegate in relation to the proposal. However, on file are two standard letters indicating that the proposal would not be assessed, but would be the subject of informal advice by employees at the EPA. Those letters, dated 22 January 1990 and addressed to the Shire of Swan and the Department of Planning and Urban Development, are Annexures MJA6 and MJA7 respectively to this affidavit.
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- 16. The proposal has then been sent to me as the referring officer. I note from the file that the earlier advice which is annexure MJA2 was then forwarded to the Department of Planning and Urban Development and the Shire of Swan, indicating that the EPA had no additional comments to make. I do not specifically recall drafting these letters, although my name next to 'Enquiries' suggests I was responsible. The letter to the Department of Planning and Urban Development was dated 19 January 1990, was signed by Jim Malcolm on behalf of Rob Sippe, Director, Evaluation Division and is Annexure MJA8 to this affidavit. The letter to the Shire of Swan was dated 20 March 1990 and was signed by Bruce Kennedy on behalf of Rob Sippe, Director, Evaluation Division and is Annexure MJA9 to this affidavit.
17. While I cannot recall how I treated the referral discussed in the previous paragraph, I would not have regarded a proposal to make a scheme such as TPS 14 as a proposal to subdivide the land that was the subject of the Scheme."
38 It will be noted that in par 12 of the affidavit it seems to be suggested that because a "filtering sheet" was completed in relation to TPS 14, it was treated by the Filtering Committee as a referral of a proposal under s 38 of the Act. At the same time, it was indicated that the referral be assessed at the internal level. Ms Andrews then explains that it was "understood within the EPA" that a proposal so assessed would not be assessed under Pt IVA, but would be reviewed by EPA employees and advice provided in relation to the proposal. There was a recommendation that standard letters conveying this decision be sent to the Shire of Swan and the Department of Planning and Urban Development. The notations on the Filtering Sheet in this case indicate that Ms Andrews was designated the "assessing officer for the referral."
39 As to par 15 of the affidavit Ms Andrews says that the two standard letters dated 22 January 1990 indicate that "the proposal" would not be assessed, but would be the subject of informal advice by employees of the EPA. The letter to the Shire, however, says that the environmental impact of the proposal was not such as would require "full, formal assessment and the subsequent setting of formal conditions". It was made clear that this was an interim response and that a final response giving the EPA's "advice and recommendations related to this proposal, will be forwarded
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- as soon as possible". The only further response was by way of a letter dated 20 March 1990 in which the EPA said it had "no additional comment to make".
Was TPS 14 a "proposal"?
40 In my opinion, TPS 14 was a "proposal" within the meaning of "proposal" as defined in s 3 of the EP Act. When the correspondence is viewed and construed objectively, it is clear that the EPA treated TPS 14 as a "proposal". A proposal may be referred to the EPA by the "proponent" or "any other person". In this case the proposal was referred to the EPA by the Secretary of the Department. The question, however, is to determine what was proposed.
41 By a notice dated 10 January 1990 the City gave notice to the EPA of TPS 14 as prepared. The first object of the Scheme remained the same as originally proposed. Plans and documents setting out and explaining the TPS 14 were made available for inspection.
42 There is annexed to the affidavit of the Chairman of the EPA, Mr Bowen, sworn on 21 April 2001 a copy of the "Daily Record of Recommendations of the Filtering Committee for Section 38 Deferrals". The date of the relevant meeting was 16 January 1990. With reference to TPS 14 the recommended action was for an informal review with public advice.
43 The EPA responded to the City's notice dated 10 January 1990 by an undated letter received by the City on 24 January 1990 as follows:
"TOWN PLANNING SCHEME NO 14 – EAST MALAGA INDUSTRIAL DEVELOPMENT SCHEME SHIRE OF SWAN
Thank you for your memo, regarding the above proposal.
The Environmental Protection Authority has decided that the overall environmental impact of this proposal is not so severe as to require full, formal assessment and the subsequent setting of formal conditions. However, the staff of the Environmental Protection Authority will look at the proposal and provide advice and make recommendations to assist you with environmental aspects of the proposal.
This is an interim response only. A final response giving the Environmental Protection Authority's advice and
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- recommendations related to this proposal, will be forwarded as soon as possible.
You should be aware that when the Authority provides its advice to decision-making authorities that advice will be made available to the public.
Some members of the public may have preferred that the Environmental Protection Authority undertake a full, formal assessment of this proposal. By law, they have a 14 day appeal period, closing 2 February 1990, when they may ask the Minister for Environment to order the Environmental Protection Authority to conduct a formal assessment. You should not make any decisions that could allow the proposal to be implemented until the appeal period has closed and any appeals have been determined."
44 As to this letter, it was contended on behalf of the applicants that the reference in the letter to the "memo" regarding TPS 14 was clearly referring to the City's notification of the Scheme as prepared. Further, the letter refers to TPS 14 as a "proposal". It was submitted that the reference to TPS 14 as a "proposal" and the contents of the letter made it clear that the EPA received and dealt with the notification of TPS 14 as a referral under s 38 of the EP Act. In my opinion, that contention must be accepted. That conclusion is reinforced by the last paragraph of the letter which refers to a 14 day appeal period. Consequently, it may be inferred that TPS 14 had been received as a proposal referred under s 38 of the EP Act and that the EPA had considered TPS 14 for assessment under s 40 of the EP Act.
45 By a letter dated 20 March 1990, after the appeal period mentioned in previous correspondence had expired, the EPA referred to the advice given to the City in June 1989 and said that the EPA "has no additional comments to make".
46 TPS 14 subsequently received the approval of the Minister for Planning and was published in the Government Gazette dated 7 September 1990. The Scheme thereupon took effect as if it had been enacted in the relevant Act by virtue of s 7(3) of the TP Act. In other words, the Scheme was given statutory force.
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Reference of the Subdivision to the EPA
47 Subsequently, Sandbourne and the City proceeded with the subdivision of land in the TPS 14 Scheme Area on the assumption that the environmental effects of the Subdivision had been considered, and that there would be no risk or hazard associated with further assessment under the EP Act. Sandbourne proceeded with the planning of the subdivision of its land in the TPS 14 Scheme Area on that assumption, and subsequently submitted an application dated 28 August 2000 for formal WAPC approval of the plan of subdivision for the Subdivision under Pt III of the Town Planning and Development Act 1928 ("the TP Act"). At the instigation of the EPA, the WAPC referred the Subdivision to the EPA pursuant to s 38(1) of the EP Act. It was contended on behalf of the applicants that the "proposal" the subject of the Subdivision application in 2000 was a part of the proposal for subdivision incorporated in TPS 14, which had previously been submitted to the EPA and approved. Hence, subject to s 46(6) of the EP Act, the reference to the EPA of the proposal a second time was prohibited by s 38(5) of the EP Act. Section 46(6) provided that:
"Notwithstanding anything in this section, a proposed change to any conditions or procedures agreed or decided under section 45 shall, if the Minister and any decision-making authority consulted by him under that section agree that that change is a major change, be deemed to be a new proposal and shall be referred by that decision-making authority to the Authority under section 38(1)."
48 The definition of "proposal" in s 3 of the Act, as it stood at the relevant time, was:
" 'proposal' means project, plan, programme, policy, operation or development or change in land use, or amendment of the foregoing."
49 In my opinion the proposed subdivision and development of the land the subject of TPS 14 clearly included a project, plan, policy, development or change in land use so as to constitute a "proposal" within the meaning of s 3 of the EP Act. It follows that the definition of "proposal" is capable of comprehending the proposed industrial development scheme envisaged in TPS 14, the objects of which focused on the subdivision and development of the land in the Scheme Area. By cl 2.1 the General Objects of the Scheme included:
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- "(a) To plan, facilitate and encourage the progressive subdivision and development of the land within the Scheme Area for industrial and other purposes;
(b) To co-ordinate and control development in the Scheme Area."
50 The objects also included making provision for roads, drainage, sewerage and drainage reserves and easements; the reticulated supply of water, deep sewerage, power supply; landscaping and beautification of land surrounding any compensation basin or drainage sump either in or outside the Scheme Area for the purpose of the Scheme; establish standards for the development of land in the Scheme Area; to allow for and make provision for the subdivision and development; making provision for such of the matters as set out in the First Schedule to the TP Act as are necessary and incidental to the good and effective planning, subdivision and development of an individual development scheme; and to improve and secure the amenity, health and convenience of the Scheme Area and to make provision for works calculated to achieve those ends.
51 Significantly, cl 3.1.1 of TPS 14 provides that:
"The Scheme Map forms a basis for the development of the Scheme Area showing the proposed approximate location of roads and ways; main drains, compensating basins and drainage sumps, sewage pumping stations, rising mains, and main sewer lines; and areas, works or installations required for the servicing or effective planning of the Scheme Area, but does not show areas of cut and fill, the proposed location of main water supply works and installations, or any installations necessary for power supply."
52 The proposal under TPS 14 was for the subdivisional development of all of the relevant land in the Scheme Area. The proposal by Sandbourne for the Subdivision under TPS 14 was for the subdivisional development of the subject land as part of the land in the Scheme Area. The proposal referred in 1990 contemplated the subdivisional development for the whole of the land in the Scheme Area. The proposal now sought to be referred to the EPA was for the Subdivision of the subject land which had previously been included in the proposal under TPS 14.
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Was the proposal previously referred to the EPA?
53 The EPA contended that the critical issue is whether the subject proposal for the Subdivision in 2000 was previously referred to the EPA prior to 16 January 2001. It was conceded on behalf of the EPA that if there had been a prior referral, a purported referral on 15 January 2001 would have contravened s 38(5). It was contended by the EPA, however, that the subdivision proposal made in 2000 had not previously been referred under s 38 of the EP Act because, first, in relation to TPS 14:
"(a) TPS 14 did not propose the Subdivision of 2000, so that the referral of TPS 14 to the respondent did not involve a referral of the Subdivision of 2000; and
(b) in relation to TPS 9:
(i) as the amendment of TPS 9 merely altered the zoning of land, it was not a proposal that could have been validly referred to the respondent under s 38 of the EP Act;
(ii) the amendment to TPS 9 was never purportedly referred to the respondent; and
(iii) the amendment to TPS 9 did not propose the Subdivision, so that any referral to the amendment to TPS 9 would not have involved a referral of the Subdivision to the EPA."
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- Planning Scheme No 8 ("TPS 8"). A copy of the notice of resolution was enclosed in accordance with reg 5(2) of the Town Planning Regulations 1967, together with a copy of the "Scheme Area Map". The Director was requested to forward to the Shire "particulars of any matters that in your opinion should be considered in the preparation of the scheme". The attached map depicted the Scheme Area which was approximately the same as that ultimately incorporated within TPS 14. In a letter dated 16 September 1977 to the Consultants, the Director said:
"… that Mr Viol has been in contact with Mr Houghton by phone. This department has had a previous association with the area at the time it was being considered for rezoning by the Town Planning Department for the MRPA.
Through this association consideration was given to environmental aspects such as regional open space buffer zones, preservation of wetland areas, air quality and underground water pollution control.
The area finally zoned for industry is now surrounded by regional open space buffer and major wetlands have been included in the buffer. The remaining wetlands within the industrial area are of lesser biological value and might be considered as landscape and stormwater collection points within a development scheme. [my italics]
The Malaga area is partly within the Mirrabooka Underground Water Pollution Control Area. Development proposals, including detailed waste water management, will need therefore to comply with the appropriate By-Laws of the Metropolitan Water Supply, Sewerage and Drainage Act 1909-1976.
The industrial area will be surrounded by urban development, though separated from it by controlled access roads and buffer zones. The air quality within and close by the area will be a function of the type of industry established, the increased traffic generated, and the meteorological conditions governing dispersion of emissions. Guidelines showing the relationship between emissions, and their dispersion under various atmospheric conditions are presently being prepared by the Clean Air Section of the Public Health Department. I suggest that you contact Mr Powell of that section for further detail.
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- Consideration of the generation and abatement of noise is an essential part of designing the development. Reference to the Noise Abatement Act should be made.
I hope this information will help you."
55 In a discussion paper prepared by an Acting Senior Planning Officer of the Metropolitan Region Planning Authority ("MRPA"), the planning of the study area was reviewed in the light of changing circumstances to recommend a Metropolitan Region Scheme ("MRS") amendment if necessary. The study noted that in February 1983 letters were sent to all landowners inviting their comments on the future of the area, for consideration by a steering committee formed to consider the future of the subject land. Generally the response was positive. The report concluded:
"This support of the study and the general desire by these landowners for planning action on roads, drainage and land zoning could be seen as a mandate for the [MRPA] to make decisions on the issues raised in the study."
56 By February 1984 the MRPA had produced the Malaga Industrial Development Area Study. This indicated that the Malaga Industrial Area was created in 1955 as a result of the Stevenson-Hepburn Report recommendations. It was the largest industrial area north of the Swan River and approximately the same size as that located at Kewdale/Welshpool. It was approximately 10 km north of the Central Business District and equal in size to the Canning Vale Industrial Area, which was the fourth largest in the region at approximately 550 ha. The whole area lay within the Shire of Swan and was "largely unused as there were only 33 existing establishments in 1983". At that stage, the adjoining land use zoning on the periphery of the area was currently regional open space to the west and south east, urban to the south and north and rural to the east. There were four land use classifications within the study area. The majority of the land was zoned "Industrial" and the remainder reserved for "Parks and Recreation", "Rural" or "Public Purposes". The Parks and Recreation reservation occurred on the north, east and south perimeter with two projections into the central area, one from the north and one from the south. These two projections contained low lying seasonal wetland complexes. A portion of the southern wetland complex was in the process of being leased to the Native Animals and Bird Rehabilitation Association ("NABRA") as a rehabilitation area for native animals via the Shire of Swan. It was proposed that the Parks and
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- Recreation reservation in respect of the wetland system should be re-assessed in the course of the proposed study.
57 At that stage land ownership was reflected in the existing pattern of development. In the southern third there were relatively small holdings of about 2 ha with isolated development. In the northern two thirds there were large landholdings varying from undeveloped land to cleared and serviced land.
58 In 1984-1985 the City was involved in the preparation of TPS 9. As previously stated, the land within the Scheme Area the subject of the subsequent TPS 14 was zoned as "industrial development". It was common ground that, although this was not expressly stated in the text of TPS 14, it was depicted as such on the Scheme Map which formed part of the Scheme. Clause 7.2.1.1 of TPS 9, which was before us, was a version of TPS 9 incorporating amendments to 2000, although the marginal note to cl 7.2.1.1 refers only to the clause as being amended by "AMEND 160 GG 02/10/92" which is almost two years after the publication in the Government Gazette of TPS 14 on 7 September 1990.
59 In June 1986 the Shire of Swan completed a Malaga Study which was adopted by the Council on 22 September 1986. The Study was a response to the recommendations of the Malaga Industrial Development Area Study of 1984. It was aimed at developing a structure plan with a set of policy statements to guide the future development of the Malaga industrial area. A copy of the Study was forwarded to the Department under cover of a letter dated 8 October 1986. The report made recommendations regarding landscaping, buffer areas and public open space. After it obtained the comments of the Department of Conservation and Environment by a letter dated 28 October 1986, the Shire gave notice to the EPA by letter dated 5 December 1988 that the Council intended to prepare a Town Planning Scheme over all or part of the subject area. Because it was possible that the Scheme Area may be altered, this was not a formal notice of intention to prepare a scheme. This was due to uncertainty regarding the ultimate scheme boundaries. The EPA's comments on any matters necessary to consider in the preparation of any scheme or subdivisional design were sought.
60 By a letter dated 15 December 1989 the Secretary of the Department of Planning and Urban Development informed the Chairman of the EPA that the Shire of Swan had requested that it be granted consent to advertise TPS 14 East Malaga Industrial Development Scheme, on the basis that the EPA had already inspected the Scheme and provided comments. Any
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- additional comments were requested. In the meantime, as has been seen, by letter dated 12 June 1989 the EPA had responded drawing attention to a number of matters that should receive careful consideration during preparation of the Scheme, namely, drainage design, protection of the Gnangara Underground Water Pollution Control Area with limitations on groundwater usage from private bores, the integration of a revegetation programme into the TPS, and the necessity to address the effects of the area zoned "General Industry" to the east of the Scheme Area with consideration of the inclusion of a buffer zone between incompatible land uses.
61 So far as development was concerned, it was noted that, in relation to previous land development to the north east of the Scheme Area on Beach Road, there were problems with the total removal of existing vegetation; flooding during site dewatering for drainage control; dust pollution of nearby housing and industrial areas; and wetland encroachment and destruction. In this context, it was commented further that:
"Future development within the Scheme Area will require onsite investigation and controls to limit any potential problems experienced with the previous development. Consideration of appropriate noise and dust control during development is of special concern. It may be necessary to prevent clearing during the drier months (ie, October through to April), adopt staged clearing procedures and/or undertake seeding or hydromulching of the soil."
62 It was against this background that the City had given notice to the EPA on 10 January 1990 to which the EPA responded by the undated letter received by the City on 24 January 1990. As previously mentioned, TPS 14 was published in the Government Gazette on 7 September 1990.
Was TPS 14 a proposal to subdivide?
63 The critical issue in this case is whether TPS 14 could be characterised as a proposal for the subdivision of the subject land. TPS 14 clearly contemplated the subdivision and development of land in the Scheme Area for industrial development. In my opinion, however, it was not itself a proposal for the subdivision of that part of the land in TPS 14 zoned for industrial development.
64 Section 20(1)(a) in Pt III of the TP Act relevantly provides that:
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- "Subject to s 68 of the Environmental Protection Act 1986, to this section and to section 20B, a person shall not, without the approval of the Commission, lay out, grant or convey a street road or way … or subdivide any lot … and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective."
65 Section 68 of the EP Act is not relevant in the present context. Section 20(2) provides that the Registrar of Titles shall not issue a certificate of title under the Transfer of Land Act 1893 (WA) for land the subject of a plan of subdivision unless:
"(a) in the case of a plan of subdivision to which this Act applies, the subdivision of that land …
has been approved by the Commission."
66 Section 20(5) provides that:
"In giving it approval under subsection (1)(a), the discretion of the Commission is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration."
67 The term "subdivision" is relevantly defined by s 2 of the Town Planning and Development Act as meaning "activity requiring the approval of the Commission under Part III".
68 It follows that there cannot be approval of a proposed subdivision unless and until a plan of subdivision has been submitted to the WAPC. So far as the land the subject of the Subdivision was concerned, no plan of subdivision was submitted to the WAPC at any time prior to August 2000.
69 It was submitted that the specific subdivision proposed by Sandbourne was a proposal in accordance with the proposed subdivision which was referred to the EPA in 1990. In other words, the subsequent proposal was for the subdivision and development of part of the land which was the subject of the proposal which had been approved by the EPA in January 1990. The EPA accepted that if an overall proposal for subdivision was referred to the EPA for assessment, a subsequent proposal relating to part of the land the subject of the prior reference constitutes the same proposal for the purposes of s 38(5). It makes no
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- difference that the subsequent proposal relates only to part of the land and not the whole.
70 Counsel for the EPA submitted that the critical issue was whether the application for approval of the Subdivision as proposed by Sandbourne dated 28 August 2000 was part of a proposal previously referred to the EPA prior to 16 January 2001, when the MRPA purported to refer the proposal to the EPA. The EPA contended that the Subdivision proposal had not been referred to the EPA previously because:
(a) TPS 14 did not propose the Subdivision proposed by Sandbourne in 2000 ("the 2000 Subdivision proposal"); and
(b) so far as the amendment to TPS 9 is concerned, first, that merely altered the zoning of the land and was not of itself a proposal that could have been validly referred to the EPA under s 38 of the EP Act; secondly the amendment to TPS 9 was never purportedly referred to the EPA; and thirdly did not propose the Subdivision proposal.
71 So far as the referral of TPS 14 was concerned, it was submitted that it was necessary to consider with some particularity what any previously referred proposal entailed. The applicants relied on an affidavit sworn on 29 March 2001 by Ms J L Smithson, a Director and the Manager, Planning of BSD Consultants ("BSD"), a town planner who has degrees of Bachelor of Arts in Urban and Regional Studies from Curtin University and a Masters in Town and Country Planning from Sydney University and a former local government planner. Ms Smithson had been engaged since 1988 as the planning and civil engineering consultant for the subdivisional development of the Southern Private Development Area. Ms Smithson referred to a copy of the Scheme Map for TPS 14 on which she identified:
(a) the Southern Private Development Area;
(b) a portion of the Southern Private Development Area referred to as "the Eastern Sector"; and
(c) a portion of the Southern Private Development Area referred to as "the Western Sector".
Sandbourne was formerly the owner of all of the land contained within both the Eastern Sector and the portion of the Western Sector south of Beringarra Avenue (formerly Truganina Road). It remains the sole owner of the land contained in the Eastern Sector. As at 29 March 2001 the Western Sector had been developed and subdivided by Sandbourne in accordance with TPS 14. The lots in that part of the development had, for
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- the most part, been sold by Sandbourne and developed by various purchasers for industrial purposes.
72 The Eastern Sector comprises the subject land. By letter dated 28 September 2000 Sandbourne lodged an application for approval of the subdivision of the Eastern Sector with the WAPC. It is that application which the EPA now wishes to assess as a proposal. It is that application which was referred by the WAPC to the EPA under s 38 of the EP Act and confirmed by letter dated 22 February 2001 from the EPA to BSD. The zoning of all the land in the TPS 14 Scheme Area has remained industrial under the MRS since 1985. As previously indicated, the land within the Scheme Area of TPS 14 is also within the Scheme Area of TPS 9 under which the land comprising the TPS 14 Scheme Area is zoned for various industrial purposes. Since BSD became involved in the project in 1988 and earlier, it has been the intention of Sandbourne to subdivide all of the land in both the Eastern Sector and the Western Sector. Such subdivisional development is consistent with and contemplated by the zoning of the land under the MRS and TPS 9 and is the purpose of TPS 14.
73 Sandbourne originally intended to develop and subdivide its land independently. However, upon TPS 14 being proposed in 1988 – 1989 and considering that its purpose was the guided subdivision and development of the Scheme Area for industrial purposes, Sandbourne became a participating owner in TPS 14. Such participation was based on the fact that subdivision and development pursuant to TPS 14 was consistent with Sandbourne's intention to subdivide and develop the whole of the Western and Eastern Sectors.
74 On 5 October 1988 BSD lodged a subdivision application on behalf of Sandbourne with the Department of Planning and Urban Development (as it then was) with respect to the entire Southern Private Development Area. By letter dated 6 October 1988 BSD informed the City of the lodgment of the subdivision application, attaching a copy of the subdivision plan and the outline development plan. On 13 October 1988 the State Planning Commission (as it then was) responded to BSD stating that the subdivision application had been received and that it was necessary that the application be referred to various bodies prior to determination. It appears that that application was never determined. The application was initially deferred pending the preparation of TPS 14. As a result of the preparation and implementation of TPS 14, the 5 October 1988 subdivision application was superseded by other applications for subdivision of the land in accordance with TPS 14. It was subsequently
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- agreed by the City and landowners within the TPS 14 Scheme Area, when TPS 14 came into operation in 1990, that development of the Scheme Area would occur from west to east for "efficiency of servicing". That accounts for the prior and separate subdivision and development of the Western Sector by Sandbourne.
75 Sandbourne had incurred subdivisional and development costs of more than $7.4 million from the inception of the project up to 30 June 2000. A large proportion of the costs incurred relate to spending on infrastructure and capital works. The development of the Southern Private Development Area has proceeded on the assumption that the subdivision and development of the Eastern Sector would reflect the objectives and design of TPS 14. Consequently, roads and services throughout the relevant part of the TPS 14 Scheme Area have been designed and constructed in anticipation of future connection to the Eastern Sector.
76 It is apparent that when the EPA considered the provisions of TPS 14 in 1990, it had before it the text of TPS 14, and had available the Scheme Report which made it quite clear that TPS 14 proposed the subdivisional development of the whole of its Scheme Area to produce subdivisional lots in an industrial estate. In the circumstances, it must have been clear to the EPA that TPS 14 in substance proposed the subdivisional development of the whole of the Private Development Areas as depicted on the Scheme Map. The whole essence of TPS 14 was to provide guidance for the subdivisional development of land within the Scheme Area so as to produce subdivisional lots in an industrial estate in the Development Areas. In my opinion, TPS 14 constituted a proposal for the subdivisional development of the land within the Scheme Area, but it did not incorporate a plan of subdivision.
77 As Mr Lumsden points out in par 34 of his affidavit:
"The subdivision proposal for the Subject Land [ie the Subdivision] is consistent with the TPS 14 Scheme Report and with TPS 14 itself. The proposal for subdivisional development of the Scheme Area contained in TPS 14 and referred previously to the EPA comprehends the proposal involved in the subdivision of the Subject Land [ie, the Subdivision], and necessarily any other subdivision proposal within the Scheme Area of TPS 14 which is consistent with the Scheme."
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78 In my opinion, this acknowledges that TPS 14 itself was not a proposal for subdivision in the form contemplated by s 20 of the Town Planning and Development Act. This is extremely unfortunate.
79 According to Mr Lumsden, the City has already expended in the vicinity of $5.3 million by way of capital expenditure for the development of the TPS 14 Scheme Area. Further works in Stage 2 of the development of the TPS 14 Scheme Area are estimated to cost $1.2 million. Additional costs for land acquisition and compensation claims could take the total expenditure by the City on the Scheme Area under the guidance of TPS 14 to around $8 million. Owners of land within the Scheme Area likewise have made heavy capital commitments in reliance on the subdivision and development plan contemplated by TPS 14. A substantial part of the capital expenditure for TPS 14 has been devoted to the provision of planning, design, engineering and other services and the provision of infrastructure works which serve the whole of the Scheme Area. If any part of the Scheme Area is excluded from subdivision, there will be a significant waste of public and private funds in relation to those services and works.
80 In all of the circumstances, the City supports the contention by Sandbourne that the EPA would be in breach of s 38(5) of the EP Act if it were to proceed to assess Sandbourne's application for subdivision.
81 The concern of the EPA is the protection of conservation category wetlands. It is the fact, however, that none of the DEP, the EPA nor the Waters and Rivers Commission ("the WRC") raised any objection in connection with conservation category wetlands in the context of the proposal for TPS 14.
The EPA and the WRC become involved
82 It appears that on 10 January 2001, as a result of an inquiry sent to the DEP by the WRC, Ms N C Thorning, an environmental officer in the Environmental Planning Branch of the DEP contacted the WAPC. Ms Thorning asked that the Subdivision proposal relating to the subject land be referred to the EPA. The reference took the form of a letter dated 12 January 2001 from the WAPC to the DEP attaching the Subdivision application. This was treated as a referral of a proposal to the EPA under s 38 of the EP Act.
83 Ms Thorning was allocated to the Subdivision as Assessment Officer. The role of an Assessment Officer is to consider the available
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- information relating to the environmental impacts of a proposal and make a recommendation whether or not a proposal should be assessed and, if so, at what level.
84 Ms Thorning looked at the Geographic Information System of the DEP which contains information including aerial photography of the site, conservation areas, wetland mapping, cadastral boundaries and zoning of the site under planning schemes. She saw that the subject land was fully vegetated and contained a wetland which had been classified as "conservation" by the mapping undertaken by consultants engaged by the WRC in 2000 ("the Subject Wetland"). The consultants concerned, B&C Semeniuk, are leading experts in Western Australia in wetland classification. The classification was undertaken in accordance with criteria identified in Hill, Semeniuk, Semeniuk and Del Marco, Wetlands of the Swan Coastal Plain (1996) published by the DEP and WRC.
85 Ms Thorning observed that the subject land contained one of the two remaining parts of the original Victoria Road Sumpland, which is a conservation category wetland No 43 of Map 2034 II NE, classified in Wetlands of the Swan Coastal Plain. A sumpland is a seasonally inundated basin wetland. The Wetlands of the Swan Coastal Plain identifies the Victoria Road Sumpland as being one of the best examples of its type within the Bennett Brook Suite. A suite is a group of wetlands distinctly related because of similarity in size, shape, soils, water, setting and origin. The Victoria Road Sumpland was categorised for conservation due to it being an outstanding wetland, recognised in other regional wetland studies. Ms Thorning annexes to her affidavit a copy of relevant extracts of Wetlands of the Swan Coastal Plain from Wedge Island to Mandurah. The studies were published in 1993 and 1994 after the approval of TPS 14.
86 It is clear from the EPA's letter to the City dated 12 June 1989 that the EPA was aware that there were a number of low lying wetland areas to the east of the proposed Scheme Area. It was then pointed out that although those wetlands were semi-degraded, they were suitable for rehabilitation to important landscape features, as well as retaining a drainage function. It was indicated that land use planning in the Scheme Area should take this into account in the form of appropriate landscaping and drainage strategies, giving consideration to both water quantity and quality. It does not appear to have been asserted that what was proposed raised any objection. On the contrary, the EPA responded to the notice of TPS 14 as prepared by the undated letter, to which I have referred, received on 24 January 1990 in which it was notified that the EPA had
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- decided that the overall environmental impact of the proposal was not so severe as to require full, formal assessment and the subsequent setting of formal conditions. Although that was referred to as an interim response only and that a final response giving the EPA's advice and recommendations would be forwarded as soon as possible, the EPA did not further communicate about the matter other than by way of the letter dated 20 March 1990 referred to above until Ms Thorning requested that the proposed Subdivision be referred to the EPA on 10 January 2001.
87 It appears that the subject land in the Subdivision contains one of the two remaining parts of the original Victoria Road Sumpland which is a conservation category wetland classified in Wetlands of the Coastal Plain. Consequently, in January 2001 Ms Thorning concluded that the subject land included a conservation category wetland, which was the highest management category of wetlands, and, "which may contain biodiversity values of regional significance".
88 Following further discussion with the WAPC and WRC, Ms Thorning obtained the previous correspondence from the EPA in relation to TPS 14, including the letter from the EPA to the City drafted by Ms Andrews dated 12 June 1989 referring to matters that the EPA believed should receive careful consideration during preparation of TPS 14, namely, drainage design, revegetation programmes, proximity to industrial areas and problems that arose with previous land development to the north east of the Scheme Area on Beach Road. Reference was also made to the undated letter received on 24 January 1990 to which I have referred earlier, in which the EPA indicated that the impact of the proposal was not so severe as to require full, formal assessment and the subsequent setting of formal conditions.
89 Ms Thorning also provided the Court with a copy of a letter from the WRC to the WAPC dated 12 January 2001 which explained the significance of the Subject Wetland. In that letter the WRC informed the Ministry for Planning about the matters related to Lot 301 Victoria Road as follows:
"Thank you for giving the Water and Rivers Commission the opportunity to demonstrate the value of the wetland on Lot 301 Victoria Road, Malaga. The wetland covers not only the majority of Lot 301 Victoria Rd but also part of Lot 302 Victoria Rd and also extends south towards Reid Highway. For your information, a site visit was undertaken by Mr David Nunn, Mrs Shelley Shepherd and Ms Candice Ringrose from
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- the Ministry of Planning and Ms Melissa Patt, an officer of the Commission, on Thursday, 21 December 2000.
I refer to questions that were raised specifically regarding the wetland values and to the request for suggestions to assist the MFP in protecting the wetland.
Lot 301 is the last remaining piece of what was once a much larger wetland described on Map 2034 II NE in the Wetlands of the Swan Coastal Plain Vol 2B as 43Sc – Victoria Road Sumpland.
It was identified as a conservation category wetland (CCW) in 1996 in the Department of Environmental Protection and Commission's report, Wetlands of the Swan Coastal Plain. The wetland belongs to the Bennett Brook suite, of which there were only 154 wetlands of this type in the Swan Coastal Plain in 1996. Within this type, Lot 301 was ranked in the top 10% based on using recognised values and other wetland evaluations. It is also highlighted in the 1st Tier recognition as being an 'outstanding wetland recognised in other regional studies', this study being the wetland vegetation assessment project undertaken from Moore River to Mandurah area in 1993.
In 1997, as part of wetland verification work undertaken by the V&C Semeniuk Research Group for the draft of Perth's Bushplan, the boundaries of 43Sc were redrawn to reflect the cleared portions and the conservation status reaffirmed for the remaining wetland. Lot 301 Victoria Road was again confirmed as a CCW.
In 1999, Alan Tingay and Associates was commissioned by the Commission to assess the risk of CCW's no longer being conservation category.
Lot 301 Victoria Road was assessed in this report, found not to be at risk and once more the conservation category status was confirmed.
Finally, in September 2000, as part of the final Perth's Bushplan wetland verification work undertaken by the Commission, Lot 301 Victoria Road was again found to be of conservation category status.
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- The wetland is intact and its current status is conservation category. At the time of the site visit, it was observed that, although there was minor weed invasion around the edges and a few tracks through the wetland, the overall vegetation was in very good condition and free of weeds. The area was very wet and there were large areas of open water in the southern part of the wetland. There appeared to be no justification for altering the management category from conservation or to reduce the boundaries.
Sumplands are defined as seasonally inundated basins and Perth has lost 80 to 90% of its seasonally inundated or waterlogged areas. Vegetated seasonal wetlands are often more botanically rich than other wetland types. There are 12,000 wetlands remaining on the Swan Coastal Plain of which approximately 4,500 have values high enough to be considered CCW's. Of these, 2,800 are not currently protected in reserves nor covered by the existing Lakes EPP. In other words, 62% of CCWs currently have no form of protection.
The biggest pressure on the survival of CCWs exists in the Perth metropolitan area. According to the report by Peter Browne Cooper in 1998, there are 485 CCWs in the Perth metropolitan area not protected by the Lakes EPP or in reserves. Approximately half of these are in 'Bush Forever' sites leaving approximately 200 CCWs requiring urgent protection. The Victoria Road wetland is one of these.
The Commission has recently completed wetland verification for Bush Forever. This work has highlighted the loss of CCWs occurring throughout Perth since the first draft of Perth's Bushplan in 1997 and today. Approximately 66 CCWs have been lost and 60 of those were outside 'Bush Forever' boundaries. At this rate, the current unprotected CCWs in the metropolitan area will be lost within seven years.
The Victoria Road wetland's significance is not only because of its CCW status and that we need to reverse further loss of CCWs but also that it is within the top 10% of wetlands in the Bennett Brook suite.
In reference to the query raised regarding suggestions to aid you in protecting the wetland, I understand that Lot 321 Truganina
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- Road is proposed to be rezoned from Local Recreation Reserve to General Industrial and is owned by the Metropolitan Region Planning Authority. There is a resource enhancement wetland on this site which has experienced neglect and degradation and its values are far below that of Lot 301. It may be possible to investigate selling this and using the proceeds to purchase Lot 301. This would ensure the survival of the wetland and make it easier to provide the necessary buffer.
I would reiterate, however, that, of the three conservation category wetlands in this area outside 'Bush Forever', only the one on Lot 301 Victoria Road remains. The State Wetlands Conservation Policy for Western Australia 1997 has, as its first objective, 'To prevent the further loss or degradation of valuable wetlands and wetland types, and promote wetland conservation, creation and restoration.' It is therefore imperative that this remaining wetland and its subsequent buffer is fully protected to be consistent with the state government policy."
90 Ms Thorning noted that the application for approval of the Subdivision did not contain any information to address the impacts of the Subdivision in regard to the biodiversity issues relating to the Subject Wetland on the Subject Land. Consequently, further information from the WAPC and the WRC in relation to the Subdivision was requested. In pars 13 to 16 of her affidavit, Ms Thorning says:
"13. On 31 January 2001 I attended the subject land with another DEP officer. We walked through the subject land, including the Subject Wetland. I noted that the Subject Wetland had not been cleared, was in very good condition and was extensive in area. It had very few weeds, and the weeds that were present were mostly confined to the edges and firebreaks on the Subject Wetland. The Subject Wetland had an intact vegetation structure, in that all the layers of vegetation one would expect to see in a wetland were present. There were small annual herbaceous species, sedges, flowering shrubs and large mature paperbark trees present on the Subject Wetland. The Subject Wetland was still wet in places, despite it being late summer. There was also evidence of bandicoot activity, including diggings in the ground and burrows through the dense vegetation, on the Subject Wetland. The Subject Wetland had associated
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- upland vegetation of Banksia woodland. The presence of upland vegetation associated with the Subject Wetland provides for a more diverse ecology, enabling fauna movement between different habitats on which they may be reliant. It also functions as a protective buffer to the Subject Wetland and is not commonly present with wetlands in the metropolitan area. Annexed hereto and marked NCT5 are copies of photographs that I took in this visit to the Subject Wetland. This visit confirmed the Subject Wetland's high conservation values and the need for thorough assessment of it before the Subdivision proceeded or was given approval. Implementation of the Subdivision would involve the clearing of the whole of the Subject Wetland. There may be rare flora or fauna using the Subject Wetland as habitat, but without a proper assessment we do not know whether these are present.
- 14. On 29 March 2001 the DEP received further correspondence from the WRC, dated 20 March 2001. Annexed hereto and marked NCT6 is a true copy of that correspondence from the WRC.
15. The Subject Wetland covers parts of lots 301 and 302, and a very small part of the south eastern corner of lot 303, as shown on the TPS 14 Scheme Map. The TPS 14 Scheme Map is annexure EWTL2 to the affidavit of Eric William Thomas Lumsden sworn in these proceedings on 27 March 2001. The Subject Wetland also extends over part of Lot 15 shown on the plan that is annexure NCT3 of this affidavit. Lot 15 is designated as part lots 3, 4 and 5 on the TPS 14 Scheme Map. The Subject Wetland is the only existing conservation wetland in the Scheme Area for TPS 14.
16. For the reasons explained above I have recommended to the Chairman of the EPA that the Subdivision should be assessed under Part IV of the EP Act."
91 By a letter dated 20 March 2001 Dr Marnie Leybourne, Manager, Catchment and Waterways of the WRC wrote to the Director, Evaluation Division of the DEP. This letter expressed the concern of the WRC:
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- "… with the continued loss of conservation category wetlands (CCWs) and the current lack of ability to effectively protect them.
Although the Commission would like to assist the DEP, … we are unable to provide further detail on the protection of other wetlands in the suite, without considerable and costly data analysis. However, there is no disputing the wetlands significance. It is likely the wetland has become more significant due to the loss of other wetlands. The wetland has always been ranked highly because of its vegetation condition. A rough assessment of the available data shows that the conservation category wetlands which did occur in the Malaga area (as recorded in 'The Wetlands of the Swan Coastal Plain, Volume 2') have been reduced to approximately 20 percent of the original coverage.
The Commission's position is that all remaining CCWs should be conserved. They represent the top 25-30 percent of the wetlands remaining on the Swan Coastal Plain."
92 In an affidavit sworn on 15 May 2001 the Chairman of the EPA, and its authorised delegate in respect of its powers under s 40 of the EP Act, says that he received a briefing on about 7 February 2001 in relation to the subject land referred to the EPA by the WAPC. As a result he was concerned that it may be necessary for the EPA to decide to assess the proposed subdivision. Before making that decision Mr Bowen wrote the letter to BSD Consultants dated 22 February 2001 (Exhibit EWTL12). The third and fourth paragraphs of that letter were:
"Whilst I understand and acknowledge the long history associated with the planning of the site, the EPA has consistently required the protection of conservation category wetlands in the consideration of subdivision and other land use proposals. This EPA position, together with my understanding of the incoming Government's position in relation to environmental assessment, would suggest that it is likely that formal assessment of the proposal under the Environmental Protection Act will be necessary.
Prior to finalising the level of assessment of the proposal, however, I am providing you with an opportunity to forward a formal submission to the EPA outlining how the proposal may
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- be undertaken in a manner which meets the objectives of the EPA to protect conservation category wetlands. Alternatively, if it is your view that it is not possible to subdivide the land in a manner which allows this to occur, I would be interested to know whether you are able to put in place measures which may avoid unacceptable environmental impacts of the subdivision on the wetland."
93 As to that letter, Mr Lumsden said in par 31 of his affidavit:
"The preparation of engineering design and other professional work in connection with TPS 14 had been continuing since the gazettal of the Scheme. Progressive subdivisional and development work within the TPS 14 Scheme Area had been occurring in accordance with TPS 14 for approximately seven years, at that stage. The TPS 14 Scheme Area is divided into two areas of private development, and a central area of Council development. It is apparent from the text of TPS 14 that the scheme provides for the subdivision for the purpose of industrial development of the entire Scheme Area. Reference has already been made to cl 2.1 indicating the basis for the development of the Scheme Area. Clause 3.1.2 provides that:
'As and when an owner subdivides or develops his land such subdivision or development shall be consistent with the Scheme Map.'
The Scheme Map clearly indicates the areas that are proposed to be subjected to subdivisional development work, including the subject land. As has been seen, Pt III of TPS 14 contains a programme for the subdivisional development of the whole of the Scheme Area. The subject land is the last remaining land in the Scheme to be subdivided."
94 Mr Bowen, however, makes the point that, while cl 3.1 restricts the manner in which any future subdivision of the land may be undertaken, any future subdivision proposal requires the preparation of an outline development plan and the obtaining of approval for subdivision under TPS 9 and the Metropolitan Region Scheme. He also points to the fact that the Scheme Map for TPS 14 shows only the cadastral boundaries of existing lots and does not specify how they are to be subdivided or require subdivision at all.
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95 It is pointed out that Pt VI relates to the "Private Development Area" in TPS 14, of which the subject wetland forms a small part. It provides that owners of land in the Private Development Area may reach agreement with the Council as to the development of land, but does not specify what that development will be. As to that, it is clear from TPS 14 that the object of the subdivision is to create individual lots for industrial use.
96 In par 6 of his affidavit Mr Bowen makes a number of points which were taken up by counsel for the EPA. The contention is that the effect of TPS 14 was merely to propose the construction of roads and other infrastructure and to require any plan of subdivision to be consistent with that planned infrastructure. While infrastructure works are to facilitate subdivision of the land, TPS 14 does not itself propose that subdivision. As Mr Bowen goes on to say:
"The Applicants cannot overcome the fact that the operative provisions of TPS 14 do not propose a subdivision by pointing to a general object, stated in clause 2.1(a), 'to plan, facilitate and encourage the progressive subdivision of the land within the Scheme Area for industrial and other purposes'."
97 With all due respect to Mr Bowen, it is abundantly apparent from TPS 14 that the whole purpose of the Scheme was to rezone the subject land for the primary purpose of facilitating its subdivision for industrial use. In my opinion, the original referral immediately gave rise to an issue to be examined on the part of the EPA to determine whether the rezoning, subdivision and development of the land within the Scheme Area for industrial purposes, including the subject land, if implemented, would have a significant effect on the environment. The EPA cannot escape the fact that when it originally examined the proposal, it came to the conclusion that it did not.
98 Mr Bowen also points out that the provisions of TPS 14 are to be contrasted with an application for subdivision. The Outline Development and Subdivision Guide Plan, which was proposed at the time that TPS 14 was prepared, namely, what was referred to as "the 1988 Subdivision Proposal", was itself a prerequisite for the subdivision of the subject land pursuant to cl 7.2 of TPS 9.
99 I have already referred to the history of Sandbourne's subdivision of its land, including its application for subdivision on 5 October 1988 which was superseded by subsequent applications for subdivision of the land in
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- accordance with TPS 14, culminating with application for approval of the Subdivision.
Conclusion
100 In my opinion, none of the grounds in the order nisi have been made out. While the Subdivision is in accordance with the provisions of TPS 14, the Town Planning Scheme does no more than provide a guide for the subdivision of the TPS 14 Scheme Area. There can be no subdivision into lots without the approval of the WAPC. No plan of subdivision of the Subdivision as now proposed by Sandbourne has been approved by the WAPC under s 20(1)(a) of the Town Planning and Development Act. The proposal for the Subdivision is a "proposal" within the meaning of s 38(1) of the EP Act. It is patently not the same proposal as that previously considered by the EPA which comprised TPS 14 which proposed a framework for the subdivision and development of the TPS 14 Scheme Area. TPS 14 did not incorporate a plan of subdivision for the Scheme Area in general or the subject land of the Subdivision in particular. Amendment 262 to TPS 9 did not contain a plan of the proposed subdivision.
101 In order for the Subdivision to constitute the same proposal or part of the same proposal as that considered by the EPA in 1989, it would need to be demonstrated that the plan of subdivision submitted by Sandbourne in the 2000 Subdivision proposal was the same proposal for subdivision as that which was the subject of the proposed submitted by the City to the EPA in 1989. Quite clearly it was not. What was then submitted was a framework for subdivision showing the road layout and identifying the areas of land to be subdivided. Consequently, while it may be accepted that the Subdivision is "in accordance with" TPS 14, the subject of the reference to the EPA in 1990 under s 40, there was no plan of subdivision incorporated in TPS 14 or submitted to the EPA in connection with the Scheme showing a plan of subdivision for the subject land as is depicted in the plan of the Subdivision the subject of the application made in 2000.
102 Consequently, while grounds (a), (b) and (c) of the grounds of the application are made out, the Subdivision does not constitute the same proposal as that which was originally referred to the EPA. It was not enough that the original proposal identified the lots to be subdivided. Without a plan of subdivision the full environmental impact of the proposal could not be determined.
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103 For these reasons I would discharge the order nisi and discharge the injunction restraining the EPA from taking any further step to consider or assess the Subdivision.
104 STEYTLER J: I have had the advantage of reading, in draft, the reasons for decision of the Chief Justice. I agree with them. There is nothing I wish to add.
105 EINFELD AJ: I have had the benefit of reading the reasons for judgment of his Honour the Chief Justice. I am in agreement with those reasons and have nothing further to add.
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