REID and WESTERN AUSTRALIAN PLANNING COMMISSION
[2015] WASAT 35
•31 MARCH 2015
REID and WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 35
| Pending Appeal |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 35 | |
| 31/03/2015 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:355/2013 | 10 DECEMBER 2014 | |
| Coram: | MR P McNAB (SENIOR MEMBER) MR B HUNT (SENIOR SESSIONAL MEMBER) | 10/12/14 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Conditions affirmed Review dismissed | ||
| B | |||
| PDF Version |
| Parties: | LANCE ROBERT REID WAYNE PETER REID WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Conditions Rural land Two lot subdivision of land with high value native vegetation Land suitable for biodiversity conservation Land had connectivity to other native vegetation on neighbouring lands Condition imposed conservation covenant in perpetuity Covenant to be recorded on title pursuant to special statutory provisions Whether condition valid Whether condition had sufficient nexus with subdivision Reasonableness and pursuit of legitimate planning purpose conceded Planning framework expressly contemplated subdivisions with such arrangements Condition upheld Obligations amounted to quid pro quo for subdivision approval Condition arose directly out of the fact of the subdivision itself Other conditions for electricity upgrades and bushfire management upheld Decisions under review affirmed |
Legislation: | Albany Local Planning Strategy Albany Regional Vegetation Survey 2010 City of Albany Local Planning Scheme No 1, cl 4.2.20, cl 8.2 Model Subdivision Conditions Schedule 2012 Planning and Development Act 2005 (WA), s 143(1), s 143CD Transfer of Land Act 1893 (WA), s 129BA |
Case References: | Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126 Lloyd v Robinson (1962) 107 CLR 142 Macri and Western Australian Planning Commission [2013] WASAT 157 Macri v Western Australian Planning Commission [2014] WASC 153 Stewart and Western Australian Planning Commission [2005] WASAT 116 Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 |
Summary | This review deals with the imposition of certain conditions in relation to the subdivision of rural land near Albany. The land, which was to be subdivided into two lots, contained very high value native vegetation suitable for biodiversity conservation and connectivity to other native vegetation beyond the property boundaries.,The main condition in dispute related to a requirement for a conservation covenant in perpetuity to be recorded on the certificate of title. The issue was whether a condition to that effect should be imposed upon the proposed subdivision. The applicants did not challenge the boundaries specified in the covenant, nor the mechanisms for its implementation.,If the condition were to be imposed, the covenant would effectively sterilise more than half of each lot by permanently preserving an area of precisely identified remnant native vegetation on the land. The area of vegetation preserved on each lot was adjacent to each other, making a total contiguous expanse in aggregate of more than 20 hectares.,The planning framework established, in effect, a presumption against the subdivision of rural land except in specified circumstances. One of these exceptions was where the subdivision would protect and actively conserve places of biodiversity and natural heritage.,The applicants argued that there was insufficient connection (or nexus) between the condition and the subdivision, particularly where the practical effect of both did not lead to any material changes 'on the ground'.,The Tribunal upheld the condition. Both the form and the intent of the condition were found to be valid. The Tribunal held that the quid pro quo for the 'privilege' of the subdivision approval was the imposition of a continuing obligation to maintain a wellidentified and scarce natural resource found on significant areas of the newly created lots. As conceded by the applicants, that aim pursued a legitimate planning purpose (having regard to the express requirements of the planning framework) and, in the Tribunal's view, in the circumstances of the case the condition arose directly out of the fact of the subdivision itself; that was the nexus with the subdivision.,The Tribunal concluded that the proposed condition ought to be attached to the plan of subdivision.,The Tribunal also upheld other proposed conditions for electricity supply upgrades to each new lot and in relation to bushfire management.,The review was consequently dismissed and the decisions under review were affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : REID and WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 35 MEMBER : MR P McNAB (SENIOR MEMBER)
- MR B HUNT (SENIOR SESSIONAL MEMBER)
- WAYNE PETER REID
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Subdivision Conditions Rural land Two lot subdivision of land with high value native vegetation Land suitable for biodiversity conservation Land had connectivity to other native vegetation on neighbouring lands Condition imposed conservation covenant in perpetuity Covenant to be recorded on title pursuant to special statutory provisions Whether condition valid Whether condition had sufficient nexus with subdivision Reasonableness and pursuit of legitimate planning purpose conceded Planning framework expressly contemplated subdivisions with such arrangements Condition upheld Obligations amounted to quid pro quo for subdivision approval Condition arose directly out of the fact of the subdivision itself Other conditions for electricity upgrades and bushfire management upheld Decisions under review affirmed
Legislation:
Albany Local Planning Strategy
Albany Regional Vegetation Survey 2010
City of Albany Local Planning Scheme No 1, cl 4.2.20, cl 8.2
Model Subdivision Conditions Schedule 2012
Planning and Development Act 2005 (WA), s 143(1), s 143CD
Transfer of Land Act 1893 (WA), s 129BA
Result:
Conditions affirmed
Review dismissed
Summary of Tribunal's decision:
This review deals with the imposition of certain conditions in relation to the subdivision of rural land near Albany. The land, which was to be subdivided into two lots, contained very high value native vegetation suitable for biodiversity conservation and connectivity to other native vegetation beyond the property boundaries.
The main condition in dispute related to a requirement for a conservation covenant in perpetuity to be recorded on the certificate of title. The issue was whether a condition to that effect should be imposed upon the proposed subdivision. The applicants did not challenge the boundaries specified in the covenant, nor the mechanisms for its implementation.
If the condition were to be imposed, the covenant would effectively sterilise more than half of each lot by permanently preserving an area of precisely identified remnant native vegetation on the land. The area of vegetation preserved on each lot was adjacent to each other, making a total contiguous expanse in aggregate of more than 20 hectares.
The planning framework established, in effect, a presumption against the subdivision of rural land except in specified circumstances. One of these exceptions was where the subdivision would protect and actively conserve places of biodiversity and natural heritage.
The applicants argued that there was insufficient connection (or nexus) between the condition and the subdivision, particularly where the practical effect of both did not lead to any material changes 'on the ground'.
The Tribunal upheld the condition. Both the form and the intent of the condition were found to be valid. The Tribunal held that the quid pro quo for the 'privilege' of the subdivision approval was the imposition of a continuing obligation to maintain a wellidentified and scarce natural resource found on significant areas of the newly created lots. As conceded by the applicants, that aim pursued a legitimate planning purpose (having regard to the express requirements of the planning framework) and, in the Tribunal's view, in the circumstances of the case the condition arose directly out of the fact of the subdivision itself; that was the nexus with the subdivision.
The Tribunal concluded that the proposed condition ought to be attached to the plan of subdivision.
The Tribunal also upheld other proposed conditions for electricity supply upgrades to each new lot and in relation to bushfire management.
The review was consequently dismissed and the decisions under review were affirmed.
Category: B
Representation:
Counsel:
Applicants : Mr I McKellar (Acting as Agent)
Respondent : Mr I Repper
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126
Lloyd v Robinson (1962) 107 CLR 142
Macri and Western Australian Planning Commission [2013] WASAT 157
Macri v Western Australian Planning Commission [2014] WASC 153
Stewart and Western Australian Planning Commission [2005] WASAT 116
Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
Introduction
1 This is a review in relation to an application for subdivision of No 109 (Lot 5) Harvey Road, Warrenup in the City of Albany (subject land). The land is located between Harvey Road and Henry Street, is approximately 40 hectares in area and is located 5 kilometres north of the Albany Central Business District. Further details of the background to the review and the relevant site details of the subject land are set out below.
2 The critical issue in the review is whether a conservation covenant in perpetuity should be imposed upon the proposed subdivision. For the reasons that follow, the answer to that question is 'Yes'.
3 The Tribunal's reasons for decision were delivered orally on the day after the hearing. What follows has been taken from the transcript of those reasons and has been formally revised and edited for publication.
Background
4 The application for subdivision of the subject land was lodged on 11 July 2012 and originally sought approval for four new lots. Two of the lots were proposed to be 9.1 hectares in area; the other two lots were proposed to be 10.6 hectares in area. That subdivision application was refused by the Western Australian Planning Commission (WAPC or respondent) on 29 August 2013.
5 On 27 September 2013, an application for review was lodged with the State Administrative Tribunal. The applicants provided a revised plan of subdivision on 12 August 2014, instead proposing subdivision into two lots with certain conservation covenant areas. By consent and with the concurrence of the Tribunal, that plan (in effect, an amended plan of subdivision) is now the basis for the review. However, the agreement reached as to the potential conservation area or areas did not include the applicants' consent to the imposition of a conservation covenant attached to the titles in perpetuity.
6 The amended plan proposes lots with areas, respectively, of 18.2 hectares fronting Harvey Road and 21.3 hectares fronting Henry Street, together with two respective conservation covenant areas of 10.44 hectares and 12.88 hectares. These conservation areas are contiguous at the centre of the subject land.
7 Pursuant to an agreement reached between the parties, the revised plan of subdivision was reconsidered by the WAPC on 2 September 2014. The revised plan was approved, subject to five conditions and two advice notes, as follows:
1. Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of underground electricity supply to the lots shown on the approved plan of subdivision. (Western Power)
2. A restrictive covenant in perpetuity, to the benefit of the Department of Parks and Wildlife, pursuant to Section 129BA of the Transfer of Land Act 1893 is to be placed on the certificates of title of the proposed lots advising of the existence of a restriction on the use of the land to protect areas identified as RC(A) [that is, restricted covenant area A] and RC(B) [restricted covenant area B] on the Attached Plan [not reproduced] for conservation. Notice of this restriction is to be included on the diagram or plan of survey (deposited plan). (Department of Parks and Wildlife)
3. Prior to the commencement of subdivision works, a flora and fauna assessment for the areas marked RC(A) and RC(B) on the Attached Plan is to be undertaken to the satisfaction of the Department of Parks and Wildlife. (Department of Parks and Wildlife)
4. The boundary between the proposed lots is to be surveyed and marked with permanent non-flammable boundary markers. (Department of Parks and Wildlife)
5. A fire management plan for the proposed lots being prepared, approved and relevant provisions implemented during subdivision works, in consultation with the Department of Parks and Wildlife. The fire management plan is to ensure that the values and intent of the conservation covenants are not unnecessarily compromised by fire protection measures. (Local Government)
Advice
1. With regard to Condition 1, Western Power provides only one underground point of electricity supply per freehold lot.
2. Condition 4 is to ensure that no fences and/or firebreaks are constructed along the boundary between the proposed lots.
- The review is of all of these five conditions of approval but not, of course, as regards the advice notes.
8 The applicants do not contest the essential facts asserted by the respondent; neither did the applicants call any witnesses, nor did they file any written material, other than extensive submissions. Thus, the relevant facts, circumstances and elements of the planning framework set out below are mostly common ground and have been largely taken from the respondent's statement of issues, facts and contentions.
Subject land's site details and context
9 The subject land comprises Lot 5 on Diagram 87311, being Certificate of Title Volume 2012 Folio 639, and fronts Harvey Road (to the north) and Henry Street (to the south). Located on the subject land are two dwellings, each with separate vehicle access from the respective roads. An overhead electricity distribution line traverses the northeastern portion of the subject land. The subject land is currently held by two tenants in common, each with an undivided share under what is colloquially known as a 'purple title'. The proposed subdivision would convert the title into two freehold lots (that is, 'green title' lots).
10 Critically, the subject land is densely vegetated other than for some areas of cleared land around and adjacent to the existing dwellings. It is not challenged that this vegetation is of 'very high value for biodiversity conservation and connectivity to other native vegetation beyond the property boundaries': see, in particular, the Albany Regional Vegetation Survey 2010 filed in the review by the respondent.
11 The adjoining lands in the locality have been described by the WAPC as follows:
The subject land abuts developed 'Residential' zoned land to the south, which is allocated an R-Coding of R5/20 under [ theCity of Albany Local Planning Scheme No 1 (LPS 1)]. The abutting lots are not connected to reticulated sewerage and are developed at the R5 density code, which has a minimum 2000 m² lot size requirement.
The subject land abuts land zoned 'Future Urban' under LPS 1 to the east. This land is cleared and requires structure planning prior to subdivision pursuant to clauses 5.5.3 - Future Urban Zone and 5.9.1 - Structure Plan Areas of LPS 1.
The subject land adjoins land zoned 'General Agriculture' under LPS 1 to the north and west. These properties are generally cleared, except for portions of remnant vegetation abutting the subject land to the west and north-east.
A 150 ha portion of land reserved for 'Parks and Recreation' under LPS 1, is located approximately 500 m north of the subject land. The Reserve is heavily vegetated and forms a vegetation belt with the subject land and additional Parks and Recreation reserves located to the east of the subject land.
Properties approximately 600 m west of the subject land are zoned 'Special Residential' (SRes 4 and SRes 12) under LPS 1, and have been subdivided in accordance with an approved structure plan prepared under LPS 1.
- Apart from the characterisation of the existence of a 'vegetation belt' (see above) the applicants otherwise accepted these assertions made on behalf of the WAPC. As may be observed, the WAPC is suggesting that the immediate locality presents as significantly naturally vegetated.
Planning framework
12 As is indicated above, the relevant planning framework was not contested by the applicants. Of particular relevance are the following instruments.
13 The subject land is zoned General Agriculture under City of Albany Local Planning Scheme No 1 (LPS 1) and in cl 4.2.20 the objectives for that zone are set out as follows:
(a) Provide for the sustainable use of land for agricultural and rural activities;
(b) Support complementary land uses where those land uses do not detract from adjoining agricultural and rural activities and are compatible with the character and amenity of the area;
(c) Prevent land uses and development within the zone that may adversely impact on the continued use of the zone for agricultural and rural purposes;
(d) Provide for value-adding opportunities to agricultural and rural products on-site; and
(e) Provide for tourism experiences where those developments do not impact upon adjoining agricultural and rural land uses.
14 The City of Albany has an Albany Local Planning Strategy (ALPS) which was endorsed by the WAPC in June 2010. This document sets out the long term planning goals and principles for the City of Albany. Section 4 of ALPS sets out relevant planning principles for areas of high environmental value, as follows:
• [to] encourage biodiversity preservation;
• to maintain habitats and require that development avoids areas of threatened flora, fauna and ecological communities;
• [to] conserve remnant vegetation within the district landscape;
• to protect areas of significant remnant vegetation and increase the area of re-established local species of vegetation within the landscape;
• to minimise further vegetation clearing through the use of mechanisms including controls and incentives; and
• to ensure the protection of life and property and reduce the impacts on the environment from bushfires.
15 In summary, the WAPC's State Planning Policy 2 Environment and Natural Resources Policy, 2003 (SPP 2) at clause 5.5 'Biodiversity', requires that all planning should:
• consider mechanisms to protect areas of high biodiversity and conservation value;
• seek to avoid or minimise any adverse impacts on areas of high biodiversity and conservation value; and
• assist in establishing a comprehensive, adequate and representative conservation reserve system throughout the State.
16 State Planning Policy 2.5 Land Use Planning in Rural Areas(2012) (SPP 2.5) sets out, at cl 4, the objectives of the policy as follows:
a) To protect rural land from incompatible uses by:
i) requiring comprehensive planning for rural areas;
ii) making land use decisions for rural land that support existing and future primary production and protection of priority agricultural land, particularly for the production of food; and
iii) providing investment security for the existing and future primary production sector.
b) To promote regional development through provision of ongoing economic opportunities on rural land.
c) To promote sustainable settlement in, and adjacent to, existing urban areas.
d) To protect and improve environmental and landscape assets.
e) To minimise land use conflicts.
17 Clause 5.1 of SPP 2.5 relates particularly to the protection of rural land. It states that the 'WAPC considers rural land uses to generally be the best use of land zoned for rural purposes'. The overarching policy requirements are (emphasis added):
a) land use change from rural to all other uses is to be planned and provided for in a planning strategy or scheme;
b) land identified as priority agricultural land in a planning strategy or scheme is to be retained for that purpose;
c) beyond its [principal] function for primary production, rural land is also required for public purposes, natural resource management, biodiversity conservation and protection of landscapes and views;
d) the use of rural land for intensive or emerging primary production land uses does not warrant creation of new or smaller rural lots on an unplanned, ad hoc basis; and
e) creation of new rural lots will be by exception and in accordance with Development Control Policy 3.4 – Subdivision of rural land, or planned in a strategy or scheme.
18 Clause 5.7 of SPP 2.5 relates to managing and improving environmental and landscape attributes in rural land by way of the following:
a) supporting and promoting private conservation areas within Western Australia in addition to the State's conservation estate;
b) supporting the establishment of environmental corridors in strategies and schemes, including connection of the State's conservation estate and waterways and wetlands with private conservation areas;
c) considering future management and ownership of conservation areas at strategy stage, and prior to the zoning or subdivision of land;
d) supporting rural living proposals with a conservation theme that result in improved environmental outcomes, where that land is identified as suitable for future rural living subdivision in a strategy or scheme in accordance with the criteria listed at 5.6 (b); and
e) supporting the inclusion of provisions into strategies and schemes that promote improved landscape outcomes, as required.
19 Importantly, the WAPC's Development Control Policy No 3.4 Subdivision of Rural Land (2012) (DCP 3.4), at clause 6, promotes, in effect, a policy presumption against the subdivision of rural land - which this land is. However, DCP 3.4 does specify some circumstances where subdivision may be properly allowed. These circumstances are (emphasis added):
a) to realign lot boundaries with no increase in the number of lots, where the resultant lots will not adversely affect rural land uses;
b) to protect and actively conserve places of cultural and natural heritage;
c) to allow for the efficient provision of utilities and infrastructure and/or for access to natural resources;
d) in the Homestead lot policy area ... to allow for the continued occupation of existing homesteads when they are no longer used as part of a farming operation; and
e) for other unusual or unanticipated purposes which, in the opinion of the WAPC, do not conflict with this and other relevant policies and are necessary in the public interest.
- In addition, clause 6.5 specifically deals with a conservation covenant in perpetuity for conservation of biodiversity and natural heritage. So far as is relevant, this clause provides as follows:
Conservation lots [on a subdivision plan] may be created to conserve significant environmental features and remnant vegetation provided that:
a) the application includes advice from the Department of Parks and Wildlife, National Trust of Australia (WA) or another relevant agency endorsing the suitability of the new lot for the intended purpose of retaining environmental values including:
i) the adequacy of the lot size proposed (if it is less than 40 ha) to retain the conservation value in perpetuity
ii) in-principle agreement to administer the necessary conservation covenant;
b) generally at least 85 per cent of the area of the conservation lot has high environmental values or is covered by endemic or regenerated vegetation and/or wetland;
c) the proposed conservation lot has an appropriate shape having regard for the native vegetation, natural features, bushfire management, water resources, property management and existing or proposed structures;
d) a conservation covenant in perpetuity with the Department of Parks and Wildlife, the National Trust of Australia (WA) or an alternative authority acceptable to the WAPC is registered on the certificate of title as a condition of subdivision for the proposed conservation lot and that covenant includes provisions that:
i) prohibit further clearing (other than for necessary land and fire management requirements);
ii) clearly delineate a building envelope and/or building exclusion area which is also shown on the subdivision plan;
iii) prohibit stocking outside any existing cleared area;
e) bushfire risk can be managed in accordance with [the] WAPC guidelines without resulting in loss of conservation values; and
f) the balance lot is suitable for the continuation of the rural land use and retains where practical, native or regenerated vegetation as an integral part of sustainable primary production, provided that this does not result in the division of significant endemic vegetation in order to include a portion of that vegetation within the agricultural lot.
The creation of more than one conservation lot is inconsistent with the objectives of this policy. The creation of multiple conservation lots will require land to be appropriately zoned as conservation themed ruralresidential or rural smallholdings with conservation covenants and building envelopes specified.
20 In summary, the WAPC supported the subdivision but only upon the basis that, apart from some regulatory conditions (that is, fire management (condition 5) and the upgrading of the electricity supply infrastructure (condition 1)), a suite of three conditions (conditions 2 to 4) should be imposed upon the applicants mandating a registered conservation covenant in perpetuity attaching to the subdivision. The covenant would be effected by the application of s 129BA of the Transfer of Land Act 1893 (WA) (TL Act) which provides for the registration of restrictive covenants benefitting local governments and public authorities.
21 The WAPC concedes that the restrictive covenant would effectively sterilise more than half of each lot by permanently preserving an area of precisely identified remnant native vegetation on the subject land. The area of vegetation preserved on each lot is, as has been indicated above, adjacent to each other, making a total contiguous expanse in aggregate of 23 hectares.
22 Condition 2 is the main covenant obligation, with conditions 3 and 4 ancillary thereto: condition 3 requiring a flora and fauna survey; condition 4 providing a nonintrusive boundary definition mechanism.
23 The applicants do not seek to challenge the native vegetation boundaries on the proposed restrictive covenant plan (see above) and the mechanism proposed to achieve this aim, namely, s 129BA of the TL Act. The applicants' concerns are with the imposition of the conservation covenant itself. They accept that if the respondent is successful and condition 2, is in effect, imposed by the Tribunal's decision then the ancillary conditions must also be attached to the subdivision.
Applicants' case
24 As appears from the above, the central issue in dispute between the parties relates to whether condition 2 can be and, if so, should be imposed upon the subdivision.
25 The test established by McHugh J, in respect of the validity of subdivision conditions, in Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (Temwood), at [57], is common ground in this review. His Honour formulated these cumulative requirements:
1. The condition [must be] for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.
26 The applicants have contended that no relevant nexus has been established between the subdivision and the need to preserve the natural environment. However, it is conceded that a proper planning purpose underlies the imposition of condition 2. Thus, of the threefold test enunciated in Temwood, only the second requirement is seriously challenged by the applicants.
27 Mr McKellar, agent for the applicants, contends that the power to impose such a condition does not arise merely because a regulator is presented with the opportunity to pursue some broader environmental objective at the point of subdivision.
28 It was further submitted that because the subject land already contains two separate dwellings, the proposed subdivision involves nothing more than a 'dealing on title' and that any 'planning change' would be limited solely to the effects of such a dealing (that is, the conversion of title). No physical change to the land would result from the subdivision.
29 Thus, it was submitted on behalf of the applicants that there will be no material change 'on the ground', caused by or resulting from the proposed subdivision, considered without the restrictive covenant.
30 The evidence suggests that this contention from a practical perspective could be said to be broadly correct. Hence, the extensive permitted uses for the subject land under cl 8.2 of LPS 1 would neither be restricted nor expanded by the subdivision itself. So, for example, without the need for planning approval, fences and other structures could be erected on the subject land whether before or after subdivision.
31 Further, Mr McKellar submitted that what was being imposed was a form of future, 'positive' (that is, obligatory) management of the identified conservation area. This went beyond, so he contended, what was the proper scope of a restrictive covenant.
32 In reply, Mr Repper of counsel (for the respondent) contended that the cases establish a very wide power conferred upon the WAPC (and this Tribunal, standing in its shoes) to impose such conditions in pursuit of a legitimate planning outcome. Such an outcome may be found having regard to the planning framework outlined above, in particular, DCP 3.4 clause 6.5(d) which expressly contemplates a condition such as condition 2. Indeed, the respondent further submitted that but for the conservation covenant (and its obligations) no subdivision could be properly approved for the subject land, given its environmental status. Thus, so it was submitted, subdivision in this case, if it were to be permitted at all, inexorably attracted a condition in the nature of condition 2.
Analysis
33 It is clear that the power to impose conditions on any subdivision under s 143(1) of the Planning and Development Act 2005 (WA), as is the source of authority here, is 'extensive and comprehensive although confined to a relevant planning and land use context': Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126, at [11] (Claddagh). Thus, the power is wide enough 'to include the regulation at the point of subdivision of the effects that flow or might conceivably flow from the creation of a separate lot in itself in relation to the subject land': Macri and Western Australian Planning Commission [2013] WASAT 157 (affirmed: Macri v Western Australian Planning Commission [2014] WASC 153).
34 The power is not to be read down by any assertion, directly or indirectly, of notions of preserved property rights. Thus, it has been noted that:
... it is axiomatic that modern planning laws contain many restrictions 'which they have long imposed upon an owner's right to develop and use land without regulation (including the development which is most financially beneficial)': Tolocorp Pty Ltd v Noosa Shire Council [2007] 3 QPELR 362, at 365, per Fryberg J. Similarly:
[T]he bundle of rights involved in a fee simple are greatly modified by social considerations imposed under planning laws and by many restrictions upon ownership under local government laws, health and taxing laws.
CBC Properties Limited v Parramatta City Council, (unreported, [BC9202770], Land and Environment Court of New South Wales, Bannon J, 20 November 1992)[.]
- These authorities were cited by the Tribunal, at [88], in Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 (affirmed: Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26).
35 In addition, in Claddagh, the Tribunal observed, at [17], that:
Stein has noted in his Principles of Planning Law (OUP, 2008) at 216:
A main use of development control is to obtain from the developer, by way of a condition, the cost of the upgrades to infrastructure that will be necessary as a result of the development.
See also Stein at 222 citing (as did Jenkins J in [Carbone Bros Pty Ltd v Shire of Harvey [2014] WASC 284, (2014) 202 LGERA 455] at [40]) Lloyd v Robinson (1962) 107 CLR 142 on the 'quid pro quo' exchanged for the privilege flowing from subdivision approval. Stein cites Temwood as confirmatory of the 'exchange for approval' concept.
36 In Lloyd v Robinson (1962) 107 CLR 142 the High Court (on an appeal originating from Western Australia) said, at [154]:
The Act [now the Planning and Development Act 2005 (WA)] at its commencement took away the proprietary right to sub-divide without approval, and it gave no compensation for the loss. But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion … If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the Act down in some fashion by appealing to a principle of construction that has to do with confiscation. If the Board [now the WAPC] has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions.
37 The relevant connection between a subdivision and the pursuit of some public planning purpose or goal (imposed by a condition) is commonly expressed in terms of benefit, or ameliorating the consequences of the subdivision or regulating the other effects that flow in a readily identifiable form from the fact of the subdivision itself. Common examples include the avoidance of possible land use conflicts, or the need for public open space or for relevant infrastructure.
38 Such regulation, at first blush, deals more clearly perhaps than the case here with concrete, quantifiable and identifiable consequences and needs flowing from any subdivision. However, in our view, such specification or classification should not ignore equally valid, perhaps wider, 'societal' aims expressed through planning instruments. Thus, for example, the WAPC's Model Subdivision Conditions Schedule 2012 (Model Conditions) extend to cover heritage and environment matters (see Parts 6 and 8).
39 Here, the planning framework directs attention to similar environmental matters. For example, see DCP 3.4 clause 6.5(d), referred to above.
40 In this case, we accept that it is clear that but for the imposition of condition 2 (or something equivalent), the subdivision itself should, or would, never be approved. This is so, given the admitted 'very high value [of] biodiversity conservation and connectivity to other native vegetation beyond the property boundaries': Albany Regional Vegetation Survey 2010. Thus, in our view, the quid pro quo for the 'privilege' of this subdivision approval is the obligation to maintain a wellidentified and scarce natural resource found on significant areas of the newly created lots. The covenant provides for that obligation. As conceded by the applicants, that pursues a legitimate planning purpose and, in our view, arises directly out of the fact of this subdivision itself; that is, the nexus with the subdivision.
41 Consequently, we would uphold condition 2 and the associated and ancillary conditions 3 and 4.
Remaining conditions in dispute
42 The objections to the other conditions may be briefly disposed of. Condition 1 effectively imposes a monetary cost of approximately $8,000 per lot to upgrade power connections to the lot. The engineering, safety and policy basis for the condition was not seriously challenged by the applicants. The Tribunal has generally upheld such local infrastructure upgrades for services as consistent with orderly and proper planning: cf Stewart and Western Australian Planning Commission [2005] WASAT 116. The practice in subdivision matters is reflected in the Model Conditions at Part 5.
43 An analogous result, for similar reasons, flows as to the requirement in condition 5 for a Bushfire Management Plan: cf Model Conditions at Part 7 dealing with fire and emergency conditions.
Conclusion
44 For the reasons given, the review will be dismissed and the conditions will be affirmed.
Orders
The Tribunal made the following orders:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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