SIN-AUS-BEL Pty Ltd and Western Australian Planning Commission - [2006] WASAT 266

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: SIN-AUS-BEL PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 266

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)

HEARD: 27 AND 28 APRIL 2006

DELIVERED : 1 SEPTEMBER 2006

FILE NO/S: DR 60 of 2004

BETWEEN: SIN-AUS-BEL PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Planning Amalgamation and subdivision of lots Part lots reserved parks and recreation Lots abutting Swan River foreshore Condition requiring ceding of lot comprising foreshore reservation free of cost Whether condition imposed for planning purpose Whether condition reasonably related to subdivision Proposal to develop other lot for mixed use Mixed use development not certain Whether future use of development lot relevant Whether condition reasonable

Legislation:

Planning and Development Act 2005 (WA), s 149(b), s 152
State Administrative Tribunal Act 2004 (WA), s 27
Town Planning and Development Act 1928 (WA), s 5AA, s 20A

Western Australian Planning Commission Act 1985 (WA), s 18(1)(b)

Result:

Condition affirmed
Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen and Mr C Marais
Respondent: Mr CS Bydder and Ms KE Sheppard

Solicitors:

Applicant: Lavan Legal
Respondent: State Solicitor

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

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 586; 53 ALR 632
Lloyd v Robinson (1962) 107 CLR 142
Marford Nominees Pty Ltd v State Planning Commission (Unreported, Supreme Court of Western Australia, Delivered 1 February 1996, Library No 960047)
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Swick Holdings Pty Ltd v State Planning Commission (Unreported, TPAT No 7 of 1997, 22 November 1997)
Western Australian Planning Commission v Erujin (2001) 115 LGERA 24
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

Case(s) also cited:

Anglo Estates Pty Ltd v Shire of Beverley (1996) 17 SR (WA) 151
Renstone Nominees Pty Ltd v Metropolitan Region Planning Authority (1986) 21 APA 12

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

The applicant applied to amalgamate four lots which comprised the site of the Ascot Inn on the foreshore of the Swan River in Ascot, and to subdivide the land into two lots. One of those lots comprised an area which corresponded with a portion of the land that was reserved for parks and recreation under the Metropolitan Region Scheme. The application specified that the proposed use of the larger lot, being the unreserved land, was for unit development.
The Western Australian Planning Commission granted approval of the application to amalgamate and subdivide the land, but imposed a condition requiring that the smaller lot, comprising the reserved land, be ceded to the State free of cost and without payment of compensation. The applicant sought a review of that condition by the Tribunal.
The applicant contended that the condition had been imposed for an ulterior purpose, namely to avoid the State having to acquire the land for value. It also contended that the condition was not reasonably related to the proposed subdivision, and was, in all the circumstances unreasonable.
The Tribunal considered the long standing policies of the respondent and its predecessors, and considered the likely impact of the ultimate development of the land upon the use and management of the reserved portion of the land. It concluded that it was appropriate to consider the subdivision application in the context of the likely future development of the land. In that context, the Tribunal accepted that the condition did serve a legitimate planning purpose, and was reasonably related to the proposed subdivision. It considered that the condition was, in all the circumstances, reasonable, and should be affirmed.

The application for review

This application is for review of a condition imposed upon the grant of an approval to amalgamate Lots 13, 14, 111 and 112 (the subject land) at Thompson Street, Nesbitt Street and Epsom Avenue, Ascot and re‑subdivide the amalgamated lots into two lots, one lot of 2.1067 hectares (the reserve lot) and a second lot of 2.1067 hectares (the development lot). The subject land is the site of the Ascot Inn, a hotel located on the Swan River. The reserve lot comprises an area which corresponds with part of the subject land effected by a reservation under the Metropolitan Region Scheme for parks and recreation. The condition the subject of the application for review was Condition 1, which was in the following terms:
"The proposed 2,941 square metre lot shown on the plan submitted by the applicant being shown on the Diagram or Plan of Survey (Deposited Plan) as a 'Reserve for Foreshore Management' and vested in the Crown under Section 20A of the Town Planning and Development Act, 1928, such land to be ceded free of cost and without payment of compensation by the Crown."

Background to the application

By contract for sale of land by offer and acceptance dated 13 November 2002, an entity referred to as the "Ascot Inn Syndicate" contracted to purchase the subject land. The contract was subject to a condition (Condition 1) which read:
"The Contract is subject to the City of Belmont Formal Planning approval for the development of 140 apartment style units in accordance with the procedure set out in the Scheme text of the City of Belmont to be submitted by the Purchasers Architect by 13 March 2003."
A development application for the redevelopment of the site was submitted to the City of Belmont on 13 March 2003, and was considered by Council on 26 May 2003. After advertising the proposal, the City's planning and development committee recommended, on 15 September 2003, that an independent town planning consultant be engaged to prepare a development plan for the site to guide the assessment of the proposed development. The application was also referred by a community member to the Heritage Council for assessment as to whether the Ascot Inn should be included on the State register. The process of heritage assessment, including reconsideration, was ultimately completed in December 2003 when the Heritage Council determined that the Ascot Inn does not have sufficient cultural heritage significance for inclusion on the State register.
During the course of the City's consideration of the proposal, amended plans were submitted by the proposed purchasers, and ultimately, on 5 July 2005, the Council of the City of Belmont recommended refusal of the development application. The proposal had also been the subject of a recommendation for refusal by the Swan River Trust in May 2004, and the revised proposal had been considered by the Swan River Trust in June 2005 but deferred pending detail and site investigation in relation to acid sulphate soils.
In light of the City of Belmont and Swan River Trust's recommendations refusing the development application, the trustees of the Ascot Inn Syndicate notified the vendor (being the applicant in these proceedings) that the condition of the contract requiring planning approval was waived by the purchaser. According to one of the trustee's of the syndicate, Mr Leigh Turner, there is now no certainty as to the final form of development intended for the development lot. The syndicate still intends, however, to implement an approval to create the reserve lot and the development lot.
Although these proceedings are brought in the name of the present proprietor of the subject land, it is the proposed purchaser that has pursued the application. I was advised at the outset of the hearing that the vendor and the purchaser are presently in dispute over the contract of sale, but the solicitors engaged by the Ascot Inn syndicate continue to be authorised to pursue the action in the name of the applicant.

Negotiations for purchase of the reserved portion of the subject land

Mr Timothy Hillyard is the manager of the Land Asset Management Branch (branch) of the Department for Planning and Infrastructure. The branch performs the function of acquiring, managing and disposing of land reserved under a regional planning scheme. In late July 2003, Mr Hillyard received a telephone call from Mr Don Eftos, a valuer who had been engaged by the Ascot Inn Syndicate, to undertake a valuation of the reserve portion of the subject land earlier in 2003. Mr Eftos enquired whether the Western Australian Planning Commission (WAPC) might be interested in purchasing the portion of the subject land that is reserved for parks and recreation.
On 18 August 2003, Mr Brett Cross, an officer of the branch assisting Mr Hillyard, wrote to Mr Eftos advising that the WAPC was willing to enter into negotiations for the possible purchase of the reserved portions of the properties, and that two licensed valuers had been engaged to provide current market valuations of the reserved portions. The letter asked for a copy of Mr Eftos' authority to represent the owner of the land.
On the same day, Mr Cross instructed valuers. His letters to the valuers pointed out that, in 1986, a former owner of the properties had obtained approval to amalgamate the properties subject to a condition that part of the reserve land be ceded to the Crown free of cost. While a diagram for that amalgamation had been approved, no application for a new certificate of title had ever been made, and the reserve land had accordingly never been ceded.
Valuations were subsequently provided to the branch valuing the reserved portion of the land at $1 235 000 and $1 100 000 respectively.
On 7 October 2003, Ms Janine Egan, an officer of the respondent dealing with the amalgamation and subdivision application, sent a memorandum to Mr Hillyard advising him of the application and seeking his comment "including whether the Commission is likely to acquire the reserved portion of the Sin‑Aus‑Bel Pty Ltd's landholdings". The following day, Mr Cross responded to that memorandum advising of the approach that had been made for purchase of the land, and of that fact that valuations were being sought. He stated that "negotiations for the purchase of the reserved land would not take place until settlement has occurred between the current owner and the purchaser (which is subject to subdivision and development approval)".
Among the documents tendered at hearing is a handwritten memorandum dated 20 October 2003 which appears to record a meeting between Mr Cross and Ms Egan. The note records that "commercial and asset services division is supportive of a condition being imposed on the approval for subdivision application 121503 requiring that foreshore reserve lot be ceded to the Crown free of cost particularly given the intensity of development proposed for site".
Ms Egan prepared a report on the subdivision application to the Commission on 20 October 2003. It records that the commercial and assets services division "recommends" the imposition of a condition requiring the reserve lot to be ceded to the Crown free of cost. The report also records that that position is supported by Commission's Policy DC 2.3 "and is considered reasonable given the intensity of residential development that can potentially occur under the mixed business zoning, as demonstrated by the current development application". The report, which was subsequently approved by the Commission, recommends the imposition of the condition which is the subject of this review.
The Commission's approval of the subdivision subject to conditions was given on 29 October 2003 and communicated to the owner's agent by letter dated 30 October 2003. On 3 November 2003, Mr Cross wrote to Mr Eftos advising that, at the time he had written on 18 August 2003, the Department was not aware that Mr Eftos' firm was representing the proposed purchaser of the properties as opposed to the registered owner. The letter proceeded:
"As there appears to have been no authorisation given by the owner for the purchaser to negotiate the sale of the reserved land, and as the purchase involves both subdivision and development applications which could take some time to determine, the Department has decided not to proceed with the purchase of the reserved portions of the properties at this time.
Once the subdivision and development applications have been determined and the transfer of the properties from the owner to your client has been concluded, the Department would be willing to revisit the possible purchase of the reserved portions of the properties. "

The issues

It is against the background of the unfruitful negotiations for purchase of the reserved land that the applicant makes a number of contentions in these proceedings. The applicant's position is that the question of whether Condition 1 should be imposed ultimately turns on its validity. The applicant contends that the condition was not imposed for a planning purpose, was not imposed in good faith, was designed to achieve ends or objects extraneous to any proper planning purpose, does not reasonably and fairly relate to the development, and was so unreasonable that no reasonable planning authority could have imposed it. In making those submissions, the applicant draws upon the statements by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57] where His Honour restated the principle derived from the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599, 607 – 608, 618 and 628.
It was not in dispute in these proceedings that, for the condition to be sustainable, those conditions of validity must be met. The proceedings before this Tribunal are, however, not proceedings for judicial review which require an examination of the conduct or motives of the decision‑maker in reaching the decision under review. Rather, proceedings in the review jurisdiction of this Tribunal are by way of a hearing de novo, with the objective of producing the correct and preferable decision at the time of the decision upon the review – State Administrative Tribunal Act 2004 (WA) s 27. It is not, therefore, necessary for the Tribunal to determine whether the respondent acted in good faith in relation to the application nor whether its purpose in imposing the condition was to avoid the expense of purchasing the reserved land rather than for some proper planning purpose. Clearly the imposition of the condition cannot be supported if the reason for it is to avoid the State having to meet the cost of acquiring the land. That the condition may incidentally have that effect does not, however, lead to the conclusion that the condition must be invalid, nor that the discretion to impose it should necessarily be exercised in the applicant's favour.
The respondent's contention at the hearing was that the condition does serve a legitimate planning purpose, was reasonably related to the development, and, in all the circumstances, is reasonable. It is those three issues which fall for determination in the context of these proceedings. The history of negotiations for purchase of the reserved land is a matter which may be relevant, not the bona fides of the respondent, but to the question of whether imposition of the condition was, in the circumstances, reasonable.

Does the condition serve a planning purpose?

In Western Australian Planning Commission v Temwood Holdings Pty Ltd, McHugh J at [56] referred to the High Court's endorsement in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at 577 of the following statement in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499‑500; that the power to attach conditions to development consents was to be understood ‑
"not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council - 65#65, as being 'the implementation of planning policy', provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained."
Section 152 of the Planning and Development Act 2005 (WA) (the PD Act), and the section which it replaced, s 20A of the Town Planning and Development Act 1928 (WA) (TPD Act), contemplate the approval of a subdivision of land subject to a condition that portion of the land reserved for, amongst other things, waterway management or recreation, vest in the Crown.
A number of the respondent's planning policies contemplate the imposition of conditions requiring the ceding of land. Policy DC 1.1 Subdivision of Land – General Principles (June 2004), is an operational policy in respect of matters relating to the subdivision of land. Its objectives include the making of "appropriate arrangements, where necessary for planning purposes, for the ceding or transfer of land".
Policy DC 2.3 – Public Open Space in Residential Areas (May 2002) is directed to the provision of public open space in residential areas. It's objectives include "to protect and conserve the margins of wetlands, water‑courses and the foreshores adjacent to residential development". Section 3.2 of DC 2.3 deals specifically with foreshore reserves. It provides:
"3.2Foreshore Reserves
3.2.1The Commission may require provision of a foreshore reserve where a subdivision includes land abutting a watercourse (e.g. river or creek) or body of water (e.g. lake or the sea). Such reserves will be required to be shown on the survey documents either as a Reserve for Recreation or a Reserve for Foreshore Management, dependent upon the use to be made of the land, and vested in the Crown under the provisions of … the … Act. The land in the reserve is to be ceded to the Crown free of cost and without payment of compensation by the Crown.
3.2.2The required width of a foreshore or coastal reserve varies according to the size of the watercourse or body of water and the condition of its banks, shore or coastline. As a general rule in the case of river or lake foreshores, a reserve of 30 metres' width is required, but each application is examined in detail. Where, for topographical or other reasons, such as protection of a floodway, a greater or lesser width is considered necessary or desirable in the public interest, such a width may be specified."
Clause 3.2.6 of DC 2.3 specifies that, where an area of foreshore is required to be given up as a condition of subdivision, the area of the foreshore required will not be included in the gross sub‑divisible area for the purpose of assessing the requirements under the policy for public open space.
Pursuant to s 149(b) of the PD Act, the respondent is given the function of preparing and keeping under review a planning strategy for the State. That requirement was previously found in s 18(1)(b) of the Western Australian Planning Commission Act 1985 (WA) which was repealed by the PD Act. In accordance with that function, the respondent prepared a State Planning Strategy in March 1995 and it was subsequently adopted and approved by the Cabinet of the State, and published in December 1997. The State Planning Strategy identified a need to protect and enhance the key natural and cultural assets of the State. A specific strategy to give effect to that objective was found in Part II, s 7.1 of the Strategy and reads as follows:
"Protect landscape, open space and public access.
Consideration of public open space should be a key consideration in all types of planning. It provides breaks between settlements, ecological sanctuaries and significant recreational reserves. Where population growth is occurring additional resources will be required to ensure sensitive areas are protected. In addition, in view of the size of the State and the extent of fragile areas, consideration must be given to alternatives to land acquisition as a means of securing conservation.
Criteria for plans:
•Ensure that significant landscapes are identified and protected.
•Ensure that development proposals incorporate measures to retain landscape elements and vegetation.
•Ensure that public access is secured to key recreation areas."

The actions identified to support the strategy include developing alternatives to land acquisition by retaining land in private ownership while using private conservation methods, as a means of securing conservation where public access is not required.
In June 2003, the respondent released a Statement of Planning Policy No 2: Environment and Natural Resources Policy (SPP 2) which was prepared pursuant to s 5AA of the TPD Act.
Clause 5.2 of SPP 2 provides for policy measures for water resources in the following terms:
"(iv)Ensure the provision of adequate setbacks between development and the foreshores of wetlands, waterways, estuaries and the coast, in order to maintain or improve the ecological and physical function of water bodies. Such setbacks will aim to maintain the natural drainage function, protect wildlife habitats and landscape values, lessen erosion of banks and verges, and facilitate filtration of sediment and waste associated with surface run‑off from adjacent land uses, which may include retention or replacement of riparian vegetation. (p. 2051)
(v)Consider flood risk by identifying floodways and land affected by 1 in 100 year flood events and avoid intensifying the potential for flooding as a result of inappropriately located land uses and development. (p. 2052)"
In his witness statement Mr Vincent McMullen, a town planner and a senior officer of the Department of Planning and Infrastructure, outlined the history of open space planning in Western Australia over the past 70 years. His analysis demonstrates that the management and reservation of river foreshore has been the subject of planning instruments going back to 1930.
In the context of water courses adjoining residential development, policy DC 2.3 has direct application. It expressly identifies the potential requirement for land to be ceded to the Crown free of cost where required as a reserve for recreation or foreshore management. The underlying planning purpose of conditions of the nature under review emerges from the strategies and policies referred to above.
Provided the other requirements for a valid condition are met, it cannot be said that Condition 1 is not designed to achieve a proper planning purpose. As already observed, the question for the Tribunal is not what the subjective purpose of the respondent may have been in imposing the condition, but rather whether, on a consideration of the relevant planning instruments the condition is directed to a proper planning purpose.
The applicant contended that the policies of the respondent in relation to ceding of foreshore land as a condition of subdivision or development has not been consistently applied. In support of that contention, Mr Caddy, a planner who gave evidence on behalf of the applicant, referred to three riverside properties where applications for subdivision or amalgamation did not attract conditions requiring ceding of land. In two of those cases negotiations were well underway for purchase of the reserved land by the time the subdivision applications were made, and concerned land in respect of which the governments had established and funded a plan for a green way which required the acquisition of that land. The third subdivision occurred approximately 20 years ago and the evidence in relation to it gave little insight into the surrounding circumstances. The examples raised do not detract from the proposition expressed by the former Town Planning Appeal Tribunal in Swick Holdings Pty Ltd v State Planning Commission (Unreported, TPAT No 7 of 1997, 22 November 1997) that cl 3.2 of Policy DC 2.3 "expresses a long standing principle of planning of the Respondent and [its] predecessors in this State and should be seriously regarded by the Tribunal".

Does the condition reasonably relate to the proposed development?

There is a fundamental difference in approach between the parties in relation to this issue. The respondent approaches the application as being part of an overall proposal for a development involving a mix of multiple dwellings, townhouses and a café. It points to the form 1A application for amalgamation and subdivision which identifies the current use of the land as "hotel‑motel" and the proposed use of the land as "unit development" and specifies that existing buildings are to be demolished. As Mr McMullen observed in his witness statement, the development application contemplated by the contract of sale was lodged with the City of Belmont on 13 March 2003 and forwarded to the respondent by letter dated 19 March 2003, and thus was before the Commission at the time that the application for subdivision was being considered. The respondent's position is that the ultimate development of the land will impact upon the use made of the foreshore, the desirability of proper management, and facilitation of public access.
The applicant's position, however, is that the ultimate development of the land is uncertain, as explained by Mr Turner. The applicant contends that the uncertainty as to the ultimate use of the development lot leads to the position that the Tribunal could not conclude that the ceding of the reserved lot is reasonably required by the application. Rather, the subdivision of the land to separate the reserved lot would simply facilitate the sale of that lot to the Commission.
Mr Paul Stephens occupies the position of Manager – Statutory Assessments, with the Department of Environment. He provides administrative and assessment services to the Swan River Trust. He expressed the view that the proposal to develop the subject land for residential purposes is likely to introduce an increased resident population to the immediate area, and lead to increased intensity of use of the foreshore. He also expressed the view that the changes in use of the land since the initial Crown grant, which is continued by the current proposal to develop the land for residential purposes, has necessitated an increase in the size of the foreshore reserve available to the public, and made more important the co‑ordinated management of the foreshore. He observed that the subject land derives significant aesthetic, and therefore economic benefit, from its river foreshore location, and expressed the view that the consistent management and conservation of the whole area reserved for parks and recreation by the Swan River Trust and the City of Belmont will further enhance those benefits.
Mr Ross Montgomery, a planner who has had considerable involvement in planning in relation to Perth's rivers, noted that the portion of the subject land adjacent to the river has been maintained as an open area for use of hotel patrons and has been utilised by the wider community for recreational purposes. He expressed the opinion that the replacement of the hotel with residential development will change the ability of the local community to access and enjoy the river foreshore immediately adjacent to the subject land. He expressed concern about conflict between private ownership of the adjoining land and community expectations concerning use of the river. He considered that ecological issues associated with the river and the foreshore are best managed in a coordinated way by the State.
Mr David Caddy expressed the view that there is no nexus between the subdivision application and Condition 1. On questioning by counsel for the respondent, however, he conceded that the effect of the proposed amalgamation and subdivision will be to allow development to proceed as quickly as possible on the development lot, whatever might be the final form of that development.
When the proposed amalgamation and subdivision is viewed, as it was by the respondent, in the context of being a step toward the more intensive mixed use development of the subject land, there is no difficulty in accepting the proposition advanced by Mr Stephens, and supported by Mr McMullen and Mr Montgomery, that Condition 1 reasonably relates to the proposed amalgamation and subdivision. The question is whether the application should be treated in that context, or whether, as the applicant asserts, the application should be seen as no more than a subdivision which facilitates the ultimate sale of the foreshore reserve to the State, with the future of the balance of the land remaining uncertain.
In my view, the approach taken by the respondent is the correct approach. It is true that the precise form of future development is at present uncertain, given the rejection of the latest proposal for development by the local authority. It is very clear, however, that the application for amalgamation and subdivision arises in the context of the proposed purchase of the land for the purpose of redevelopment. LPS 14 zones the land as "mixed use". That zoning permits a discretionary approval of group dwellings, a nursing home, residential buildings and single houses. There is no density code applicable to the mixed use zone. Both the original proposal and the modified proposal submitted by the developers involves a significant intensification of the use of the development lot. It would be unrealistic to conclude that the land will not, in the reasonably near future, be redeveloped in a way which intensifies its use, most likely for residential purposes. It was common ground that the amalgamation and subdivision will facilitate that process.
In Western Australian Planning Commission v Temwood Holdings Pty Ltd, Mc Hugh J observed, at [72] that:
"The condition need not relate to the subdivision in question, if the subdivision is one of a series of subdivisions of a larger parcel of land, and the condition relates to the larger parcel of land as a whole. In Lloyd v Robinson, this Court held that the Commission may impose a condition on a grant of subdivision approval that requires the giving up of another area of land for purposes relevant to the subdivision of the first. That condition must be 'imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists'. The Court also held that the condition need not relate to the subdivision in question, if the subdivision is one of a series of subdivisions of a larger parcel of land, and the condition relates to the larger parcel of land as a whole. Even if the condition approved by the Tribunal did not relate to the land the subject of the subdivision applications, Lloyd v Robinson supports the proposition that the condition reasonably and fairly related to the approved development. This is because the condition clearly related to the Land as a whole."
Although the present application is not one of a series of subdivisions of a larger parcel of land, an analogous principle applies. It is appropriate for an application for subdivision to be seen in its context. The applicant's submissions cited a passage referred to by Callinan J in Western Australian Planning Commission v Temwood Holdings Pty Ltd from the judgment of Gibbs CJ (with whom Mason, Wilson, Brennan and Dawson JJ agreed) in Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 586; 53 ALR 632 where His Honour observed:
" … the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce – for example, in such a case as the present, the increased use of the road and of the bridge – and to impose such conditions as appear to be reasonably required in those circumstances."
Adopting that approach, it is, in my view, appropriate to have regard to "the changes that the subdivision is likely to produce", not by looking no further than the creation of new lot boundaries, but by looking at the proposal in its full context.
In Marford Nominees Pty Ltd v State Planning Commission (Unreported, Supreme Court of Western Australia, Delivered 1 February 1996, Library No 960047) Murray J said that:
"in deciding whether to [approve] the subdivision unconditionally or subject to conditions, the Tribunal was entitled to consider the purpose of the subdivision and the nature of the use and development of the land which the appellant proposed if the subdivision was approved. In that regard it was obliged to consider the nature of the appellant's proposals and what impact they might have upon the local amenity in all its aspects, having regard to all relevant town planning consideration."
The applicant argued that the facts in Marford differed from the present case in that the final form of the development was more progressed in Marford. That may be true to some extent, but the distinction does not alter the principle that it is appropriate and desirable, if not obligatory, for the approving authority to consider a subdivision application in the context of the likely future use of the land. In Lloyd v Robinson (1962) 107 CLR 142 at 152‑153, the decision as to when, in the context of a staged development, a condition requiring ceding of land might be imposed was said to be a question within the discretionary judgment of the approving authority. It is not difficult to see the possibility that the opportunity to impose a condition to the effect of Condition 1 may not arise at any other stage of the development approval process. It was open to the Commission, and thus it is open to the Tribunal, to impose the condition on this application for amalgamation and subdivision once the necessary planning purpose and nexus is established.
The applicant referred to the decision in Western Australian Planning Commission v Erujin (2001) 115 LGERA 24 as being factually very similar to the present application. In Erujin, Miller J in the Supreme Court upheld a decision of the former Town Planning Appeal Tribunal setting aside a condition of a two lot subdivision that required the ceding of one of the two lots adjoining Wungong Brook free of cost. Miller J agreed with the Tribunal that, in the circumstances of that case, the policies relied upon by the Commission had no application and that the condition served no planning purpose related to the proposed subdivision. In this case, however, I have accepted that it is appropriate to approach the amalgamation and subdivision having regard to the context that it constitutes a step which facilitates more intensive development of the development lot, and that there is a relationship of the development to the use and management of the river foreshore. That conclusion leads to a different outcome from that in Erujin.
Condition 1 does reasonably and fairly relate to the development.

Is the condition unreasonable?

The applicant contends that Condition 1 is so unreasonable that no reasonable planning authority could impose it. In support of the submission, the applicant contends that the owner of the foreshore lot could properly manage the area pending acquisition of it by the respondent, and thus the planning objectives could be achieved without depriving the owner of title to the land. The respondent's position is that public ownership of the land better facilitates its management and the preservation of public access.
It is not difficult to see that, as time moves on and the development lot is developed, with the distinct possibility of ownership of the development lot which differs from ownership of the reserve lot, difficulties in relation to the management and maintenance of the reserve lot may arise. I accept the view expressed by Mr Stephens, that the existence of a residential development, rather than a hotel development as currently exists on the subject land, may well have the effect of deterring public access to the foreshore and increasing the prospect of conflict between residents and members of the public.
Against the background of planning policy in relation to foreshore areas, and the potential benefits of public ownership of the foreshore reserve, it cannot be said that the imposition of Condition 1 is unreasonable, even if it is accepted that it may be possible to achieve the desired planning objectives, at least pending ultimate acquisition of the land by the State, with the land remaining in private ownership.
Although I have concluded that it is not necessary to examine the negotiations for sale of the land for the purpose of attributing motives to the officers of the respondent in imposing Condition 1, it is appropriate to consider the negotiations to determine whether, given those negotiations, the imposition of Condition 1 is unreasonable.
It is conceivable that, where negotiations for purchase of reserved land are well advanced and an application for development is then made on the assumption that the reserved land will be purchased, that an opportunistic imposition of a ceding condition which defeats a well founded expectation that the sale transaction may proceed, might be unreasonable.
In my view, that is not the case in this matter. It is true that the preliminary steps to negotiation, and in particular the obtaining of valuations, was underway. Those steps had been taken, however, on the initial assumption that Mr Eftos was acting on behalf of the land owner. (It is not suggested that Mr Eftos was in anyway misleading, and when asked he provided a clear statement of the fact that he was acting on behalf of the syndicate proposing to purchase the land.) I accept that the position taken by Mr Cross, namely that negotiations would not be pursued until settlement of the sale of the land had occurred, so that negotiations were with the registered proprietor of the land, was a decision taken in good faith and for good reason. Although the response to the initial approach by Mr Eftos was positive, and some preliminary steps were taken, the question of purchase of the land had not reached the stage of negotiation. In my view, it was entirely reasonable for the land asset management branch, on learning of the proposed development application, and knowing that the outcome of that application may impact upon considerations relevant to the purchase of the reserved land, to withdraw from further discussions on sale until the position was clarified.
Once that had occurred, the question of whether or not Condition 1 should be imposed is a question to be determined by reference to the relevant planning considerations.

Conclusion

For the foregoing reasons, I am of the view that Condition 1 is directed to a proper planning purpose, reasonably relates to the proposed development, and is a reasonable condition. In my view, the condition should be upheld, and the application for review dismissed.

Orders

The Tribunal orders:
1.The respondent's decision to impose Condition 1 is affirmed.
2.Application for review is dismissed.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT