Reid v Western Australian Planning Commission
[2015] WASC 293
•14 AUGUST 2015
REID -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASC 293
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 293 | |
| Case No: | GDA:2/2015 | 10 JUNE 2015 | |
| Coram: | CHANEY J | 14/08/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LANCE ROBERT REID WAYNE PETER REID WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Planning and development Subdivision Conditions Whether fairly and reasonably related to development No physical change to land Whether subdivision creates need for conditions |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 105 Transfer of Land Act 1893 (WA), s 129BA |
Case References: | Lloyd v Robinson (1962) 107 CLR 142 Macri v Western Australian Planning Commission [2014] WASC 153 Paridis v Settlement Agent Supervisory Board [2007] WASCA 97 Reid and Western Australian Planning Commission [2015] WASAT 35 Sin-Aus-Bel Pty Ltd v Western Australian Planning Commission [2006] 45 SR(WA) 67 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Appellant
WAYNE PETER REID
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR P McNAB (SENIOR MEMBER)
- MR B HUNT (SENIOR SESSIONAL MEMBER)
Citation : REID AND WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASAT 35
File No : DR 355 of 2013
Catchwords:
Planning and development - Subdivision - Conditions - Whether fairly and reasonably related to development - No physical change to land - Whether subdivision creates need for conditions
Legislation:
State Administrative Tribunal Act 2004 (WA), s 105
Transfer of Land Act 1893 (WA), s 129BA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr P G McGowan
Second Appellant : Mr P G McGowan
Respondent : Mr I A Repper
Solicitors:
First Appellant : Rowley Legal
Second Appellant : Rowley Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Lloyd v Robinson (1962) 107 CLR 142
Macri v Western Australian Planning Commission [2014] WASC 153
Paridis v Settlement Agent Supervisory Board [2007] WASCA 97
Reid and Western Australian Planning Commission [2015] WASAT 35
Sin-Aus-Bel Pty Ltd v Western Australian Planning Commission [2006] 45 SR(WA) 67
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
1 CHANEY J: The applicants are the registered proprietors as tenants in common of a property at 109 Harvey Road, Warrenup in the City of Albany. The property comprises 39.59 ha and is the subject of Certificate of Title, Volume 2012, Folio 639, being more particularly Lot 5 on Diagram 87311 (the Property).
2 On 2 September 2014, the respondent approved a proposed subdivision plan subject to five conditions. The subdivision proposed the creation of two lots of 18.2 ha and 21.3 ha respectively. The appellants sought a review by the State Administrative Tribunal of the conditions of subdivision. On 10 December 2014, the Tribunal dismissed the application for review and affirmed the conditions, giving oral reasons for its decision and reserving the right to publish its reasons in an edited and revised form. Edited and revised reasons were subsequently published on 31 March 2015: see Reid and Western Australian Planning Commission [2015] WASAT 35.
3 The appellants now seek leave to appeal pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 9 March 2015, Corboy J directed that the application for leave to appeal is to be heard at the same time as the appeal.
The conditions of approval
4 There were five conditions to the respondent's approval. All five are challenged, although the focus of the appellants' submissions at the hearing of the appeal was on conditions 2 to 5. The conditions are 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 characteristics of the property
5 The property is located between Harvey Road and Henry Street, approximately 5 km north of the Albany Central Business District. There are two houses on the property, each with separate vehicle access from Harvey Road and Henry Street respectively. An overhead electricity distribution line traverses the north eastern portion of the property.
6 In its statement of issues, facts and contentions (SIFC), the respondent described the adjoining lands in the locality as follows:
The subject land abuts developed 'Residential' zoned land to the south, which is allocated an R-Coding of R5/20 under [the City 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.
7 That description was agreed by the appellants in their SIFC, save that the appellants denied that the existing reserve to the north forms a 'vegetation belt' with the subject land, but admitted that the cleared areas of land around and adjacent to the existing dwellings were separated by 500 m of vegetation. The Tribunal noted (at [10]) that it was not challenged that that vegetation was of 'very high value for biodiversity, conservation and connectivity to other native vegetation beyond the property boundaries'.
Planning framework
8 In its published reasons, the Tribunal identified the planning instruments of particular relevance to the application. The Tribunal's conclusion as to the relevance of those instruments is not challenged in this appeal, and it is convenient to adopt the Tribunal's summary of the relevant portions of the planning instruments. The Tribunal said:
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 rural-residential or rural smallholdings with conservation covenants and building envelopes specified.
9 Having set out the background to the application and the relevant planning instruments, the Tribunal noted the respondent's concession that the restrictive covenant proposed in condition 2, which would be effected by the application of s 129BA of the Transfer of Land Act 1893 (WA), 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 Tribunal also noted that the respondent supported the subdivision but only on the basis that the conditions, and particularly conditions 2 to 4, should be imposed.
10 The Tribunal then dealt with the issue that is central to this appeal. That issue is the appellants' contention that there is no relevant nexus between the subdivision and the need to preserve the natural environment. The Tribunal referred to the test established by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 where his Honour identified the following requirements for validity of a condition attached to a planning permission:
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.
11 The Tribunal then noted the appellants' submission that there would be no material change 'on the ground' caused by or resulting from the proposed subdivision, and that the proposed subdivision involved nothing more than a 'dealing on title' without any physical change to the land. The Tribunal accepted that contention 'from a practical perspective' as being broadly correct in the sense that the permitted uses for the property under the Local Planning Scheme would neither be restricted nor expanded by the subdivision itself. The Tribunal recited the respondent's contention that the respondent has a wide power to impose such conditions, particularly having regard to DCP 3.4 cl 6.5(d). It also noted the respondent's contention that, but for the conservation covenant and its obligations, no subdivision could be properly approved for the subject land given its environmental status.
12 After referring to various decisions in support of the proposition that the respondent's power to impose conditions of subdivision is extensive and comprehensive, and is not to be read down by any notions of preserved property rights, the Tribunal referred to the passage in Lloyd v Robinson (1962) 107 CLR 142, 154, where the High Court said:
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.
13 The Tribunal then concluded:
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 well identified 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.
Grounds of appeal
14 There are three grounds of appeal. They are:
1. The Tribunal erred in law in determining, wrongly, that conditions 1-5 of the decision of the respondent made 2 September 2014 reasonably and fairly related to the subdivisional application.
2. The Tribunal erred in law in treating cl 6 of WAPC Policy Number DC 3.4 as applying conjunctively to the appellants' application when properly construed it required a disjunctive approach and that as a result an application of cl 6(a) would have led to the grant of development approval without the imposition of conditions 1-5.
3. Given that the application involved no more than the realignment of lot boundaries to give effect to the existing fact of occupation of two residences already constructed on the property, no reasonable authority could have concluded that conditions 1-5 could justifiably attach to the grant of subdivisional approval.
15 At the hearing of the appeal, the appellants acknowledged that whether or not consideration of ground 3 is necessary is dependent upon my conclusions in relation to ground 1.
The nature of the appeal
16 By s 105(2) of the SAT Act, an appeal can only be brought on a question of law. The scope of appeal under that section was explained by Buss JA, with whom Wheeler and Pullin JJA agreed, in Paridis v Settlement Agent Supervisory Board [2007] WASCA 97. Buss JA noted at [53] that an appeal 'on a question of law' is narrower than an appeal that 'involves a question of law', and that a question of mixed fact and law is not a question of law for the purposes of s 105(2).
Ground 1
17 The appellants' submissions in relation to this ground focus on the Tribunal's conclusion at [40] of its reasons which is set out above. As I understand the appellants' submission, it is that it conflated the concept of a 'quid pro quo' for the privilege of subdivision with the requirement to establish the necessary nexus between the condition and the development in order to satisfy the second of McHugh J's requirements in Temwood. In that way, it is said that the Tribunal failed to ask itself the correct question, and thus made an error of law.
18 I do not consider that the Tribunal erred in the way asserted by the appellant. The Tribunal's conclusion at [40] needs to be read in the context of the paragraphs which precede it, and in particular [38] and [39]. At [38], the Tribunal concluded that, while the nexus between a development and conditions can more commonly be seen as 'concrete, quantifiable and identifiable consequences and needs flowing from any subdivision', the required nexus may exist by reason of a relationship between the development and the achievement of what the Tribunal described as 'societal' aims expressed through planning instruments. As the last sentence at [40] demonstrates, the Tribunal concluded that the achievement of environmental regulation 'arises directly out of the fact of this subdivision'.
19 The appellants' concern is that, because there is to be no physical alteration to the land as a result of subdivision, the subdivision triggers no need for the condition and therefore the condition cannot be said to fairly and reasonably relate to the subdivision application . They submit that the Tribunal, in effect, concluded that the opportunity to impose the conditions was a 'privilege' of subdivision and that this was sufficient to establish the relevant nexus.
20 In reaching its conclusion, the Tribunal specifically referred to cl 6.5(d) of Department Control Policy 3.4 (DCP 3.4). DCP 3.4 has, amongst its policy objectives, the protection and improvement of environmental, landscape and cultural assets. It is clear from cl 6 of DCP 3.4 that subdivision of rural land is only to be considered in 'exceptional circumstances'. Implicit in the policy is the proposition that the fragmentation of rural land is undesirable.
21 As Kenneth Martin J observed in Macri v Western Australian Planning Commission [2014] WASC 153 [43]; it is both relevant and appropriate for a planning approval authority to have in mind possible future ramifications of dividing an existing lot.
22 It was not in issue that the proposed conditions served a valid planning purpose. The Tribunal did not err in concluding that the purpose to be served related to the proposed fragmentation of a rural lot. The Tribunal concluded, in effect, that the only justification for approval of the subdivision was the potential to achieve a planning objective. In reaching that conclusion, it had regard to the suite of planning instruments to which it had referred earlier in its reasons. It is not necessary, in order to satisfy the second requirement from Temwood, that the proposed development create a 'need', in a physical sense, for the subject matter of a condition. A condition will reasonably and fairly relate to a development if the policy framework under which the application for development is considered leads to the conclusion that the development should only be permitted if the condition is imposed.
23 I do not consider that, properly construed, the Tribunal's reasons simply conflated the notion of a 'quid pro quo' with satisfaction of the second of the tests identified in Temwood. The Tribunal was entitled to reach the conclusion which it did and did not err in doing so.
24 Condition 1, relating to underground electricity supply, was scarcely dealt with by the appellant either in written submissions or orally at the hearing. As I understand it, the appellants' position was simply that, because there are already overhead power lines to the two residences on the existing lot subdivision does not create a need for underground power.
25 In relation to that condition, the Tribunal said:
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.
26 Similarly, condition 1 was not seriously challenged by the appellants in this appeal. It was dealt with by counsel for the respondent who submitted that new lots should be created with the currently standard level of servicing. The respondent pointed to the evidence of Alexander Petrovski, an urban and regional planner, who, in his evidence to the Tribunal, explained the effect of condition 1 and its relationship to the subdivision proposal. He expressed the opinion that the provision of underground connection points would have the effect of increasing the reliability of the electricity supply to the subdivided lots, and would reduce risk of damage to power lines and of bushfire.
27 Counsel for the appellants described the issue of condition 1 as being a live issue 'at the periphery'. As noted, no submissions were directed to the identification of any error in the Tribunal's brief reference to condition 1. It is entirely appropriate for an approving authority to consider a subdivision application in the context of a likely future use of the land (see Macri [43] and Sin-Aus-Bel Pty Ltd v Western Australian Planning Commission [2006] 45 SR(WA) 67 [46]). Whilst it may be that the present owners of the land do not intend to further develop it, separate development of the lots is obviously a possibility in the future. There is no reason that the many subdivided lots should not meet current development standards. The provision of standard requirements in relation to underground power connection fairly and reasonably relates to the proposed subdivision.
28 I therefore conclude that there is no merit in ground 1, and leave to appeal on that ground should be refused.
Ground 2
29 The appellants relied upon their written submission in relation to this ground, and did not seek to supplement those submissions orally at the hearing. They contend that the Tribunal erred in law by relying solely upon cl 6(b) of DCP 3.4, and failed to have regard to the effect of, or apply, cl 6(e) 'or to otherwise consider the whole of cl 6 in its disjunctive form'.
30 There are two reasons why there is no merit in this ground.
31 First, there is no basis for asserting that the Tribunal applied the subparagraphs of cl 6 of DCP 3.4 (which are set out in the extract of the Tribunal's recital of relevant planning instruments) conjunctively. On a plain reading of cl 6, the circumstances enumerated in the various subparagraphs are obviously disjunctive. In other words, any of the enumerated 'exceptional circumstances' may lead to consideration of rural subdivision.
32 In its SIFC, the respondent set out various provisions of planning instruments which it considered relevant to the application. At [56] of that document, cl 6 of DCP 3.4 is identified. When dealing with those instruments in its contentions, the respondent identified as 'relevant considerations' cl 6(b) and 6.5 of DCP 3.4. No reliance was placed by the respondent on the provisions of cl 6(e).
33 In their responsive SIFC, the applicants 'generally' agreed with the summary of DCP 3.4 set out in the respondent's SIFC. There is no mention in the applicants' contentions in their SIFC of cl 6(e) of DCP 3.4. The evidence before the Tribunal, in the statement of Mr Petrovski, was that his opinion was that none of the exceptional circumstances identified in cl 6 of DCP 3.4 were applicable in relation to the proposed subdivision. The question of the application of cl 6(e) of DCP 3.4 was not a live issue before the Tribunal, and there is simply no basis for the assertion that the Tribunal erred by applying the subclauses of cl 6 conjunctively.
34 The second reason why this ground has no merit is that it is difficult to see how cl 6(e) could provide any support to unconditional approval of the appellants' subdivision proposal in any event. Clause 6(e) specifies that exceptional circumstances which may properly be allowed include 'other unusual or unanticipated purposes which, in the opinion of WAPC, do not conflict with this and other relevant policies, and are necessary in the public interest'. There is no apparent basis upon which an opinion that the proposed subdivision, without any conditions relating to environmental matters, is necessary in the public interest.
35 Leave to appeal on ground 2 should be refused.
Ground 3
36 As counsel for the appellants acknowledged, ground 3 could only arise if the consideration of ground 1 was made out. That concession is obviously correct. It is not necessary to give further consideration to ground 3, other than to decline to grant leave to appeal on that ground.
Conclusion
37 For the foregoing reasons, leave to appeal on each of the grounds of appeal should be refused, and the appeal should be dismissed.
3
6
2