Smith and Anor and Western Australian Planning Commission - [2005] WASAT 345

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: SMITH & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 345

MEMBER: MR J JORDAN (MEMBER)

HEARD: 8 SEPTEMBER 2005

DELIVERED : 23 DECEMBER 2005

FILE NO/S: DR 493 of 2005

BETWEEN: BRUCE GORDON SMITH
NOELEENE KAY SMITH
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Subdivision approval – Condition requiring ceding of land as reserve for recreation – Condition requiring bollards or fencing along new reserve boundary – Ceded land to be adjacent to unmade road reserve on foreshore – Distance of new lots from land to be ceded – Setback from foreshore – Potential for future development – Statement of planning policy 2.6 for setbacks from foreshore – Policies for creation of foreshore reserves – Development giving rise to need for reserve – Application under s 48(2)(b) State Administrative Tribunal Act 2004 – No disadvantage to applicants

Legislation:

Town Planning and Development Act 1928 (WA)

State Administrative Tribunal Act 2004

Result:

The application under s 48(2) of the State Administrative Tribunal Act 2004 be dismissed
Condition 6 be amended to the extent of replacing 6 metres with 3.5 metres for the extent of the reserve along the western boundary
The application for review of Condition 7 is dismissed

Category: B

Representation:

Counsel:

Applicant: Selfrepresented
Respondent: Mr Stephen Peterson

Solicitors:

Applicant: Self-represented
Respondent: As Agent

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

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Bruce and Mrs Noeleene Smith own lot 150 and lot 151 Frenchmans Bay Road, Albany. Lot 150 is 2059 square metres, is on Frenchmans Bay Road and has an old house on it. Lot 151 is a much larger lot at 1.680 hectares and extends from Frenchman's Bay Road around behind lot 150 and a further 175 metres to the rear boundary. The rear boundary is adjacent to the Seawolf Road reserve which is on the foreshore of Princess Royal Harbour. The Seawolf Road reserve contains only bush and the Bibbulmun Track. On lot 151 near Frenchmans Bay Road are six holiday units and at the rear near the reserve on the foreshore is a newer house.
The Western Australian Planning Commission granted the Smiths conditional approval to amalgamate and re‑subdivide their lots into a 2000 square metre lot with the older house, a 4000 square metre lot with the holiday units and a larger battleaxe lot of 1.27 hectares with the newer house. As conditions of approval, the Commission required that the Smiths give up a strip of land between 6 metres and 10 metres wide as a recreation reserve along the boundary with the Seawolf Road reserve. The Commission also required that the new rear boundary be fenced or marked with bollards. The Commission said the additional reserve was required to provide better protection for the foreshore and vegetation along Princess Royal Harbour and to help prevent nutrients entering the harbour.
The Smiths consider the conditions should be deleted because the subdivision has no impact on the foreshore and the existing reserve is sufficiently wide and vegetated.
The Tribunal has concluded that the subdivision will create potential for development which will impact on the adjoining foreshore and therefore the conditions should remain.

The application

This is an application by Bruce Gordon Smith and Noeleen Kaye Smith (applicants) for review of Conditions 6 and 7 imposed by the Western Australian Planning Commission (respondent) on the approval granted for the amalgamation and re‑subdivision, into three lots, of lots 150 and 151 of Plantagenet Location 33 Frenchmans Bay Road, Albany (subject land).

The subject land

The subject land is about 2 kilometres west of the centre of Albany. Both lots have frontage at the northern end to the constructed Frenchmans Bay Road, lot 150 with 34.6 metres and lot 151 with 43.72 metres. Lot 150 is 2059 square metres and 59.6 metres deep. Lot 151 is 1.6803 hectares and wraps around behind and extends a further 175.24 metres beyond lot 150 to the rear boundary of the subject land. The rear boundary abuts Seawolf Road reserve (Seawolf reserve).
Seawolf reserve, at the southern boundary, is between the subject land and the shore of Princess Royal Harbour. The seaward side of Seawolf reserve is irregular, shown on the provided cadastral plan as corresponding with the Municipal boundary which corresponds with the low water mark. There is no road formed in this reserve, but there is a walking track made of crushed limestone which is part of the Bibbulmun Track, a long distance walking trail. The walking track runs between native vegetation except where vegetation has been cleared for access at the western end of the rear boundary of the subject land and opposite this for access to the adjoining foreshore. There is also in the reserve a large Water Corporation water main, largely concealed by vegetation or buried.
On lot 150 is an older single house. On lot 151 beside that house on the Frenchmans Bay Road frontage, are six holiday units and at the rear, about 22 metres from Seawolf reserve, a newer single house. The subject land has been mostly cleared of vegetation, except for a patch across lot 151 at the rear of lot 150 and the holiday units.

The subdivision and the approval conditions

The respondent approved lot 1 of 3992 square metres containing the holiday units, lot 2 of 2188 square metres with the older house, both with Frenchmans Bay Road frontage and lot 3, a battleaxe lot of 1.27 hectares behind the two smaller lots with an access leg to Frenchmans Bay Road 10 metres wide and 90 metres long adjacent to the western boundary. The newer house at the rear of the subject land will be on lot 3.
The respondent's approval was subject to conditions and the applicants have applied for review of Conditions 6 and 7, which read:
"6.An area of land extending from the boundary of the site with Seawolf Road a distance of 10m along the eastern boundary, and 6m along the western boundary of the site, as established by survey, being shown on the Diagram or Plan of Survey (Deposited Plan) as a "Reserve for Recreation" and vested in the Crown under section 20A of the Town Planning and Development Act, such land to be ceded free of cost and without any payment of compensation by the Crown. (DoE)
7.Fencing or bollards along the southerly boundary of lot 3 where it abuts the reserve as required by condition 6 to the satisfaction of the Western Australian Planning Commission. (DoE)."

Preliminary issue

Application under s 48 State Administrative Tribunal Act 2004 (WA)

On 21 October 2005, the applicants applied to the Tribunal requesting that action be taken under s 48(2)(b) of the State Administrative Tribunal Act 2004 (SAT Act) to uphold their application for review and to strike the two conditions from the subdivision approval. The letter says that during the course of the application for review, the respondent failed to meet the deadlines set in orders by the Tribunal to supply the relevant information on which the applicants were to base their appeal and this caused disadvantage and inconvenience.
The first directions hearing for this matter was on 25 July 2005. The orders required the respondent to file and serve the bundle of document required to be served under s 24 of the SAT Act (s 24 bundle) by 5 August, the parties to file and serve witness statements by 12 August and listed the hearing for 26 August 2005.
The respondent wrote on 1 August 2005, advising that a witness would not be available until 23 August and asking that the hearing be scheduled for between 12 and 22 September 2005. The respondent failed to file or serve the s 24 bundle.
On 8 August the applicants asked that the conditions be deleted because the respondent had not complied with the orders of 25 July. The directions hearing was reconvened for 17 August. Mr Smith was told the witness statements did not have to be in by 12 August. Mr Smith expressed concern that the hearing of 26 August 2005 was not proceeding.
Orders given at the directions hearing of 17 August 2005 required the s 24 bundle to be filed and served by 24 August 2005, witness statements to be filed and served by 1 September 2005 and listed the hearing for 8 September 2005. The Tribunal received the s 24 bundle on 26 August 2005, the applicants on 27 August 2005.
On 1 September 2005, the respondent's witness' statements were filed. A bundle of documents was also filed by the applicants, but no witness statement. On 2 September 2005, the applicants advised the Tribunal that the respondent had failed to serve witness statements as ordered. The applicants subsequently received the respondent's witness' statements on 6 September 2005, two days before the hearing. On 7 September 2005, the applicants filed and served a witness statement dated 6 September 2005. The respondent's agent advised he personally did not receive the witness statement until the morning of the hearing on 8 September 2005.
The serving of documents and the capacity for each party to deal with them was discussed at the hearing. At the close of proceedings orders were issued giving the respondent until 14 September 2005 to file and serve comments on the applicants' statement of 6 September 2005 and to make closing submissions. The applicants were given to 21 September 2005 to file their closing statement.
It is the applicants' submission that they had just two days to read and digest "enormous amounts of technical data, way out of our discipline". They felt overwhelmed by the amount of information and were concerned they did not have adequate time to research properly and defend their position. They believe they were therefore inconvenienced and disadvantaged.
The respondent pointed out that the applicants did not seek an adjournment at the hearing, or indicate that they would have filed any additional information or address any aspect of the respondent's evidence differently. The applicants said they had not asked for an adjournment because they were not aware they could do so. To adjourn to another date would have caused greater financial problems.
Section 48(2)(b) of the SAT Act provides, relevantly:
"48. Conduct of proceeding causing disadvantage
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as ¾
(a)failing to comply with an order or direction of the Tribunal without reasonable excuse;
(b)failing to comply with this Act or the enabling Act;
(c)asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b);
…
(2)If this section applies, the Tribunal may ¾
(a)…
(b)if the party causing the disadvantage is not the applicant ¾
(i)determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii)order that the party causing the disadvantage be struck out of the proceeding.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)…"
The concern of the Tribunal is that no party be disadvantaged. The Tribunal does not consider that the events have ultimately resulted in the applicants being disadvantaged. The applicants were inconvenienced by the respondent's initial failure to meet ordered dates, but not in the event disadvantaged because new dates were set. The respondent then failed to meet the new dates, but did eventually serve the required documents. Again the applicants were inconvenienced, but then so was the respondent by the late serving of the applicants' witness statement.
The applicants had the opportunity at the hearing to put their case and to at least hear the respondent's case. They examined the respondent's witnesses to the degree they understood the issues at that time. The applicants' submissions were put into evidence. Subsequent to the hearing the applicants were provided with the respondent's closing statement in writing and given the opportunity to consider the respondent's submissions and then provide their own closing statement in writing.
The Tribunal considers the tests required by s 48(2) must be narrow. Section 27 of the SAT Act requires that the Tribunal arrive at a correct and preferable decision. The Tribunal is concerned to get a proper planning outcome in this matter. It does not accept that there would necessarily be a sound planning outcome if the conditions were deleted merely on the basis that the behaviour of one party inconvenienced the other party. The Tribunal considers there has to be obvious disadvantage caused to invoke s 48(2) and, in this instance it has concluded the applicants were inconvenienced by the respondent's behaviour, but ultimately they have not been disadvantaged in the proceedings.
The Tribunal finds that this matter is to be determined on its merits.

Planning framework

The subject land is zoned "Tourist Residential" in the City of Albany Town Planning Scheme 1A (TPS 1A). A density coding of R20 is allocated under TPS 1A for this zone, however, the subject land is not sewered and so minimum lot size is guided by the Draft Country Sewerage Policy (1999) which provides for a minimum lot size of 2000 square metres or a development density of R5.
The Seawolf Road reserve is reserved for "Parks and Recreation" under TPS 1A, although the reserve is vested in the City of Albany (City) for road purposes.
The respondent has adopted the following policies relevant to this matter:
(a)Statement of Planning Policy No 2.6 "State Coastal Planning Policy" 2003 (SPP 2.6). This is a statutory policy adopted under Section 5AA of the Town Planning and Development Act 1928 (TPD Act). Under s 61 (1) of the TPD Act, the Tribunal is to have "due regard" to any approved statement of planning policy prepared under section 5AA.
(b)Development Control Policy 2.3 "Public Open Space in Residential Areas" (DC 2.3);
(c)Development Control Policy 6.1 "Country Coastal Planning Policy" (DC 6.1).
The respondent has also endorsed the "Woolstores to Frenchmans Bay Foreshore Management Plan", Water and Rivers Commission Report WRM 9 (2000) (foreshore management plan), prepared jointly by the City, the Water and Rivers Commission and the then Albany Waterways Management Authority.

Background and previous deletion of conditions on appeal

The applicants acquired the subject land in early 1993. In 1994, the then Minister for Planning approved on appeal the development of the second house 22 metres from the southern boundary.
In 1997, the respondent granted approval for the subdivision of the subject land that created lot 150 with the older house, and lot 151 for the remainder. The applicants appealed to the then Minister for Planning against Condition 3, which required part of the southern portion of the land be surrendered to the Crown as a reserve for recreation, and Condition 4, which required the new rear boundary to be fenced.
The Minister found there had been no amendment to the City's town planning scheme, as suggested in the earlier development appeal, to require any change to the reserve and no scientific basis was given for increasing the reserve. The Minister observed that no dimensions were given for the land to be ceded and queried whether the same objective could be achieved by the town planning scheme limiting proximity of new buildings to the southern boundary. As the house already existed, the Minister said he could find no justification for ceding the reserve. The Minister upheld the appeal and deleted both conditions.
The current application to subdivide was determined in February 2005. The applicants asked for reconsideration and in April 2005 the respondent advised the conditions were retained as imposed. The respondent acknowledged it had been misled by the fence post from which the setback was measured not being on the boundary. This would have the effect of reducing the setback to 3.5 metres at the western end.
The applicants argued that the conditions in dispute were deleted previously and should again be deleted because there has been no change in their land or the zoning since 1997. The respondent says that that since 1997 it has adopted policies including the foreshore management plan, SPP 2.6, DC 2.3 and DC 6.1, and these must now be used in the assessment of any subdivision application. Also now different, is that the subject land has been inspected by officers whose role it is to consider land use and the environment and the precise requirements for the land to be ceded have been established, unlike the previous imprecise condition.
The Tribunal has found that the two conditions should not be deleted from the approval merely because they were deleted previously. It is necessary to examine the matter in the light of the planning framework that has been put in place since 1997.

The City

Mr Graham Bride, Manager of Planning with the City, was called as a witness by the respondent. He advised that the City had not requested that any foreshore reserve be ceded from the land when consulted by the respondent on the subdivision proposal. Mr Bride said, however, that the City would accept the ceded land being vesting in the City for this purpose. He also stated that the City had no plans to construct Seawolf Road in the vicinity of the subject land. The City is constructing a bituminised dual use path adjacent to Frenchmans Bay Road, but this will not be replacing the walking track in Seawolf reserve.

Vegetation

The parties spoke at some length about the vegetation both in the reserve and on the subject land near the reserve boundary. The vegetation affects both visual amenity and nutrient retention.

Visual amenity

The applicants' aerial photographs show that vegetation in the reserve at the western end of the subject land was cleared to provide access to the foreshore before they purchased and the applicants pointed out that the clearing of their land was legal. Mr Chris Gunby, District Manager, Albany Hinterland Area, Department of Environment, who appeared for the respondent, said in his evidence that the vegetation in the remainder of the reserve in front of the house was in relatively good condition.
The photographs show thick vegetation on much of the reserve with most the shore side of the walking track. The vegetation on most of the fence line is thick. The area that would be ceded includes a patch of reeds just inside the boundary. The remainder of the 22 metres to the house is grass.
Mr Gunby said the house on the subject land was visible from various locations on the walking track and the harbour. Widening the reserve and revegetating the land would reduce the visual impact of the house on the locality. He referred to houses screened by vegetation, but did acknowledge that views from legally existing residences were a consideration. The applicants referred to the photographs and videos provided and pointed out the homes nearby closer to and more visible from Seawolf reserve than their own.
The respondent is of the view that, regardless of who was responsible for clearing the land, site visits have confirmed that native vegetation on the subject land adjacent to the reserve, and within the reserve, has been cleared. Further vegetation is desirable and a wider reserve would allow for this. The applicants offered to vegetate their land, retaining ownership, and Mr Gunby in his evidence stated there was some financial assistance for landowners to do this.

The Tribunal is of the view that a balance between vegetation and views is a desirable objective. It does not consider, however, that the desire to have more vegetation in urban locations such as this for visual amenity reasons is of itself, a reason for having an owner cede land. The opportunity for the revegetation of additional land for this purpose is seen as a consequence of any widening and not alone as a reason for taking it.
There is also the issue of widening the reserve and replanting to control nutrients.

Nutrient retention

The applicants submitted that while the respondent claims revegetation is required to trap the nutrient discharge from the subject land, there is no proof that the subject land has contributed to pollution in the harbour. They consider that their conventional septic system would produce very little nutrients and referred to much greater discharge from: livestock grazing in the locality; chemicals from market gardens; open drains with runoff from urban and agricultural areas; fertilizer blowing from ships unloading in the port; the factories near the harbour. Reference was made to a comment attributed to a Department of Environment officer that septic overflows contribute very little to nutrient levels.
The respondent's witness, Mr Gunby, has worked on management of the foreshore and local waterways for some ten years. Mr Gunby identified significant concerns about nutrient levels in the harbour. He gave evidence that a wider foreshore reserve is needed as a "last line of defence" for the harbour against nutrients. His submission was that the reserve acts as a "filter area", containing soil and vegetation that reduce nutrients entering the harbour through various processes. A reserved area, he said, also reduces the risk of nutrient sources being located close to the harbour. Mr Gunby provided an explanation of the roles of foreshore fringing vegetation, with certain species being salt water tolerant and some a dryland buffer, and the role played in water absorption and nutrient retention in the associated soils.
There was no evidence of tests done on specific levels of nutrients from effluent and fertilizers on the subject land. There have been tests done on the nearby drains and in boreholes at intervals along the shore. There was also reference to the general movement of groundwater toward the harbour in this locality.
Mr Gunby acknowledged that some agricultural activity in the locality had been there many years and it was difficult to do anything about it. He also acknowledged that effluent from one lot, such as the subject land, was proportionally small compared with the overall volume entering the harbour.
Mr Gunby was the only expert available to the Tribunal. The Tribunal accepts that effluent potentially enters the harbour from ground water, runoff and drains in this locality and that the subject land, in whatever minor way, contributes to this. Reference was made to projects to control effluent from major point sources in the district. The Tribunal notes it is now generally accepted that the harbour is subject to high nutrient levels and agrees with the principle that each source, however minor, needs to be addressed.
It must be said, however, that the Tribunal considers that if as a result of the subdivision there were absolutely no potential for an increase in the existing level of nutrients, it would be difficult to support a reserve being ceded for the purposes of nutrient retention. That is, any condition imposed must be related to the potential future consequences of the subdivision.
It was clear that Mr Gunby believes foreshore reserves in public ownership is the preferable means of maintaining vegetation buffers and protecting the harbour from nutrients. This is in part because he believes putting in place a programme of planting on private land, and monitoring its survival and effectiveness would not be achievable with the hundreds of different land owners around the harbour. If there is to be a reserve, then it is necessary to consider how wide it is to be in this locality and whether there is a planning basis for requiring the ceding of land to widen the reserve as a consequence of the approved subdivision.

Foreshore width

It was common ground that the Seawolf reserve in front of the subject land was 25 metres to 30 metres wide. The house on the subject land is a minimum of 22 metres from the Seawolf reserve boundary. This makes a setback of up to 52 metres.
Ms Marion Murray, planning officer of the Department for Planning and Infrastructure, was called by the respondent. Ms Murray said the foreshore near the subject land could be identified as a sandy non‑accreting shore under SPP 2.6. For such a shore, Schedule One Example E.1 of SPP 2.6 identifies a minimum setback of 98 metres.
Mr Gunby cited from cl 3.6.4 of DC 6.1 that for estuaries, a 50 metre reserve from mean water level has been used, but may vary depending upon topography. He also cited Albany Harbours Planning Strategy (1997) and Albany Harbours Planning Strategy Guidelines (1999), which both refer to a 50 metre reserve and the Princess Royal Harbour and the Albany Waterways Management Authority Policy Manual policy FA 1 width of 75 metres.
The applicants referred to Figure 8 of the foreshore management plan and photographs which showed over 1.5 kilometres of foreshore reserve only 2 to 3 metres wide between Harding Road and Princess Avenue and commented on the reserve in front of their land being wider and vegetated. They argued it was inequitable that they be required to give up land for revegetation when other sections of the shore either have no vegetation or have been cleared right to the shore.
Condition 6 will result in a reserve about 33 metres wide. Mr Gunby was the witness best qualified to comment. He said he visited the site more than once and examined the existing vegetation and the topography. Mr Gunby distinguished between setback to development and the need for a reserve in public ownership. It was his evidence that the boundary chosen is the best fit between environmental factors, including a dryland buffer for access and nutrient retention, and social factors such as the use and location of the house and its surrounds.
If a reserve is required there must be a policy basis to provide for this to be obtained.

Policies in place

It was the respondent's submission that it is now established policy that public open space be given up on subdivision, citing cl 3.1.4 of DC 2.3, and that foreshore reserves be given up when abutting a watercourse or the sea, citing cl 5.1(vi) of SPP 2.6 and cl 3.2.1 of DC 2.3.
The respondent referred also to the foreshore management plan as a relevant policy document, but the applicants argued that the figures and tables in that plan only show reserves on land in public ownership, with no reference to any widening of the reserves to include private land.
The applicants also referred to the statement in cl 5.1(vi) of SPP 2.6 that requires land to be set aside for public ownership be identified in the planning process. They submitted that they have constantly stated that there should be a plan in place identifying land required for reserves with dimensions agreed with landowners. They consider it unfair that landowners should not know of any requirements for giving up land until they lodge a subdivision application.
The respondent's response was that the exact dimensions of the widening over freehold land adjacent to the foreshore would be determined on site through discussions with representatives from the Department of Environment and the owner of the land. It was of the opinion that if a plan showing the anticipated dimensions of widening were included in the foreshore management plan, it would be inaccurate at that scale and the determination of the foreshore via the above process would still need to occur. The foreshore management plan was never intended to demarcate reserves on private land, but did anticipate in its provisions, such as cl 2.11.1.2, the widening of the foreshore as a condition of subdivision. In the respondent's opinion, this method provides a "best fit" outcome having regard to existing development and site characteristics.
The applicants further argued that no reserve should be required because their property has previously been subdivided and they are not proposing development. They referred to cl 1.6 of DC 6.1 which states:
"The policy is intended primarily to deal with new development and subdivision and may not always be applicable to areas previously subdivided."
The Tribunal is of the view that approval of an initial subdivision of a property does not mean that any subsequent subdivision of that property, however incremental, should escape assessment in the light of the policy, particularly where the initial subdivision predated the policy.
The applicants argued that, while there are provisions for land to be ceded in the relevant planning policies, policies are guidelines and are not mandatory. They do not believe that the respondent has proven that the policies are applicable to their case, as there is already a wide reserve in good condition in front of the subject land.
The respondent said there is in place policies to identify whether foreshore protection is required and to have foreshores in public ownership. The sheer extent of desired foreshore reserves does not enable extensive acquisition programmes. The policy approach is to acquire foreshore reserves at the time of development or subdivision. In this case there has been site investigations to determine the specific extent of the land the respondent believes should be ceded and the dimensions chosen balance development setback policies, reserve needs, and existing development.
While the policies might be in place, it is also necessary to determine whether the proposed subdivision brings about the need for a reserve to be ceded.

Condition 6 and the proposed subdivision

The applicants emphasised that the subject land will not change in its overall area or shape, that they propose no new buildings and that all existing facilities comply with the City's bylaws. They pointed out that new lots 1 and 2 will be in excess of 140 metres from the Seawolf reserve, which is in excess of all setback requirements. The applicants consider that there is no need for increasing the reserve when no additional pressures will be placed on the environment.
It was Ms Murray's evidence that the new lot 3 created is zoned "Tourist Residential" and has the potential for additional tourist development which would want access to the foreshore. This would be in addition to the use made of the foreshore by the users of the existing holiday units. Widening of the foreshore reserve was required, in her view, because of this increase in use of the foreshore. Ms Murray did acknowledge that effluent disposal problems from lack of sewerage would help determine the level of development that could occur.
Mr Gunby states that the subdivision is the Department of Environment's opportunity to become involved, as his department would not be consulted on development applications. Mr Bride advised that the City had adopted the foreshore management plan and so the City could apply the same conditions as a condition of building approval.
Ms Murray argued that foreshore reserves are best taken as a condition of subdivision because in her experience, local governments do not always apply the setback requirements of SPP 2.6 when granting development approvals. The respondent said it has the power to impose conditions requiring that a subdivision applicant cede part of its land as a foreshore reserve, at no cost to the respondent and with no compensation and cited as authority Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63.
The Tribunal notes that although the subject land has an R20 designation in TPS 1A, the Country Sewerage Policy 1999 is applicable because of the lack of sewerage. This requires that the density of development be R5 or 2000 square metres per dwelling. Lot 151 has an area of 1.6 hectares, which provides a potential for eight dwellings. Six grouped dwellings and a house have been built. The approved subdivision excises lot 1 of about 4000 square metres with the six grouped dwellings. Approved lot 3 of 1.27 hectares has development potential of six dwellings at R5 and contains just a single dwelling. The subdivision approval has in simple terms increased the development potential of the subject land by four dwelling units.
In considering a subdivision, it is established planning practice to have regard to the use to which the lots created can be put, given the planning controls such as zoning, and to impose conditions accordingly. The Tribunal considers that the subdivision creates the potential for additional development on the land and that development gives rise to the potential for additional use of the neighbouring foreshore and for an increase in nutrients, however incremental. From the evidence, the Tribunal has concluded that Condition 6 is properly applied and can remain.
The respondent advised that the reserve width had been measured from a fence post that was not on the boundary of the subject land. If measured from the cadastral boundary the reserve required would be 3.5 metres on the western boundary and 10 metres on the eastern boundary. Condition 6 can be amended accordingly.

Condition 7

The respondent says Condition 7 is supported by cl 5.1(ix) of SPP 2.6, which states that subdivisions and other planning decisions relating to the coast should:
"Ensure that the coastal foreshore reserve is separated from adjacent development in a way that provides a clear demarcation between public and private land."
The Tribunal considers that there should be an obvious demarcation between public reserve and private land. An example of the confusion that can arise is that what the respondent measured setback only to find the fence measured from was in the wrong location. Demarcation would ensure that it is clear where public and private rights and responsibilities lie. The respondent said it would accept fencing or bollards as long as the demarcation is clear. This is a matter that the parties can resolve between them.
Mr Gunby said, when questioned, that the applicants and their customers will have access to the foreshore as the land to be ceded will be a public recreation reserve accessible to the public.
The applicants said they were concerned that they would lose a long standing arrangement they have with the Department of Conservation and Land Management for vehicular access from their land to the foreshore. Mr Gunby said the Department of Environment would restrict vehicular access to the harbour. This is an issue that has to be resolved between the parties given that it involves private agreements with a body not party to this appeal.

Conclusion

The Tribunal has concluded that the subdivision will create additional development potential on the subject land and that development has potential to have an impact on the adjoining reserve on the foreshore of the harbour. The respondent has in place policies that provide for a foreshore reserve to be given up in circumstances where adjoining development will have an impact. The impact has been assessed by the appropriate experts and they have determined the width of foreshore required to ensure the potential impact can be addressed. The reserve required has balanced development setback policies, reserve needs, and existing development.
The Tribunal has determined that Conditions 6 and 7 have a planning purpose that arises from the approved subdivision and should be retained.

Orders

1.The application that the proceeding be determined in favour of the applicant under s 48(2)(b) of the State Administrative Tribunal Act 2004 be dismissed.
2.Condition 6 of the approval of the subdivision reference 126617 of 9 February 2005 be amended by deleting "6 m" and replacing it with "3.5 m" in the second line of the condition.
3.The application for review of Condition 7 be dismissed.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER