STREAM FOCUS PTY LTD and CITY OF ARMADALE
[2017] WASAT 64
•3 MAY 2017
STREAM FOCUS PTY LTD and CITY OF ARMADALE [2017] WASAT 64
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 64 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:302/2016 | 15 FEBRUARY 2017 | |
| Coram: | MS K WHITNEY (MEMBER) | 3/05/17 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part Respondent's decision varied | ||
| B | |||
| PDF Version |
| Parties: | STREAM FOCUS PTY LTD CITY OF ARMADALE |
Catchwords: | Local Government Subdivisional roads Requirements of local government under s 170(3) of Planning and Development Act 2005 (WA) Whether requirements are beyond power of local government Limits of local government's supervision under s 158 of the Planning and Development Act 2005 (WA) Whether proposed varied conditions were correct and preferable decision |
Legislation: | Land Administration Act 1997 (WA) Local Government (Miscellaneous Provisions) Act 1960 (WA), s 295 Local Government Act 1995 (WA), s 6.15(1)(a)(vi) Planning and Development Act 2005 (WA), s 135, s 138, s 142, s 142(2), s 143, s 143(1), s 145, s 145(4), s 146, s 157(1), 157(2), s 158, s 168, s 169, s 169(1), 170, s 236(2), s 261, Div 2, Pt 10, Pt 14 Planning and Development Bill 2005 (WA) Planning and Development Regulations 2009 (WA), Sch 2 State Administrative Tribunal Act 2004 (WA), s 9(a), s 27(1), s 27(2), s 29(1), s 29(3), s 31, s 32(7)(a) |
Case References: | Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30 Auro Pty Ltd and Western Australian Planning Commission [2008] WASAT 253 Boulter and City of Subiaco [2007] WASAT 71 Carbone Bros Pty Ltd v Shire of Harvey [2015] WASCA 248 LWP Property Group and City of Swan [2006] WASAT 308 Mehtcom 91 Pty Ltd and City of Gosnells [2009] WASAT 24 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Reid v Western Australian Planning Commission [2016] WASCA 181 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63 |
Orders | 1. The application for review is allowed in part.,2. The respondent's decision on 21 November 2016 to issue the written notice is varied to amend Condition 4 and Condition 5 as follows:,Condition 4: A defects liability period of 12 months shall apply to all works in the subdivision relating to the construction of roads and artificial waterways. A defects liability bond, equal to 5% of the final contact cost for the construction of roads and drainage, shall be paid to the City prior to the issue of practical completion. The City may call on the bond after practical completion of those works for the purpose of repairing any defects in those works.,Condition 5: A Certificate of Compliance for all civil works relating to the construction and drainage of roads and artificial waterways in the subdivision is to be completed and returned to the City of Armadale at Practical Completion Inspection.,3. The application is otherwise dismissed. |
Summary | The applicant applied for review of requirements in the form of conditions imposed, or purportedly imposed, by the respondent pursuant to s 170(3) of the Planning and Development Act 2005 (WA).,Following reconsideration by the respondent pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the matter proceeded to hearing on two conditions only: Condition 4, which required payment of a '5% twelvemonth maintenance bond on all works in the development appertaining to the Council before survey release' and Condition 5, which required the applicant to complete a certificate of compliance 'for all civil works' at the Practical Completion Inspection. ,The respondent conceded at the hearing that its decision could not be affirmed in its present form, and the matter proceeded on the basis that the issue before the Tribunal was whether the correct and preferable decision on review was to vary the decision:,to delete Conditions 4 and 5 entirely; or,to vary Conditions 4 and 5 in the form proposed by the respondent.,The Tribunal determined that both conditions 4 and 5 (in the varied form proposed by the respondent) were 'in respect of the proposed road' and 'for the purpose of ensuring that the construction and drainage of the road is consistent with the approval of the Commission' as required by s 170(3) of the Planning and Development Act 2005 (WA).,The Tribunal was not persuaded by the applicant's submissions that the proposed varied conditions could not be imposed by reason of other constraints on the respondent's exercise of its s 170(3) powers. Such contentions included that there was no nexus between the proposed varied conditions and the development, and that s 145(4), s 158, s 168 and s 261 of the Planning and Development Act 2005 (WA) prevented the respondent from exercising its power to impose the conditions. ,The Tribunal ordered that the respondent's decision be varied to amend conditions 4 and 5 in the form proposed by the respondent. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : STREAM FOCUS PTY LTD and CITY OF ARMADALE [2017] WASAT 64 MEMBER : MS K WHITNEY (MEMBER) HEARD : 15 FEBRUARY 2017 DELIVERED : 3 MAY 2017 FILE NO/S : DR 302 of 2016 BETWEEN : STREAM FOCUS PTY LTD
- Applicant
AND
CITY OF ARMADALE
Respondent
Catchwords:
Local Government - Subdivisional roads - Requirements of local government under s 170(3) of Planning and Development Act 2005 (WA) - Whether requirements are beyond power of local government - Limits of local government's supervision under s 158 of the Planning and Development Act 2005 (WA) - Whether proposed varied conditions were correct and preferable decision
Legislation:
Land Administration Act 1997 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 295
Local Government Act 1995 (WA), s 6.15(1)(a)(vi)
Planning and Development Act 2005 (WA), s 135, s 138, s 142, s 142(2), s 143, s 143(1), s 145, s 145(4), s 146, s 157(1), 157(2), s 158, s 168, s 169, s 169(1), 170, s 236(2), s 261, Div 2, Pt 10, Pt 14
Planning and Development Bill 2005 (WA)
Planning and Development Regulations 2009 (WA), Sch 2
State Administrative Tribunal Act 2004 (WA), s 9(a), s 27(1), s 27(2), s 29(1), s 29(3), s 31, s 32(7)(a)
Result:
Application allowed in part
Respondent's decision varied
Summary of Tribunal's decision:
The applicant applied for review of requirements in the form of conditions imposed, or purportedly imposed, by the respondent pursuant to s 170(3) of the Planning and Development Act 2005 (WA).
Following reconsideration by the respondent pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the matter proceeded to hearing on two conditions only: Condition 4, which required payment of a '5% twelvemonth maintenance bond on all works in the development appertaining to the Council before survey release' and Condition 5, which required the applicant to complete a certificate of compliance 'for all civil works' at the Practical Completion Inspection.
The respondent conceded at the hearing that its decision could not be affirmed in its present form, and the matter proceeded on the basis that the issue before the Tribunal was whether the correct and preferable decision on review was to vary the decision:
- • to delete Conditions 4 and 5 entirely; or
• to vary Conditions 4 and 5 in the form proposed by the respondent.
The Tribunal was not persuaded by the applicant's submissions that the proposed varied conditions could not be imposed by reason of other constraints on the respondent's exercise of its s 170(3) powers. Such contentions included that there was no nexus between the proposed varied conditions and the development, and that s 145(4), s 158, s 168 and s 261 of the Planning and Development Act 2005 (WA) prevented the respondent from exercising its power to impose the conditions.
The Tribunal ordered that the respondent's decision be varied to amend conditions 4 and 5 in the form proposed by the respondent.
Category: B
Representation:
Counsel:
Applicant : Mr I McKeller (Acting as Agent)
Respondent : Mr C Slarke
Solicitors:
Applicant : N/A
Respondent : McLeods
Case(s) referred to in decision(s):
Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30
Auro Pty Ltd and Western Australian Planning Commission [2008] WASAT 253
Boulter and City of Subiaco [2007] WASAT 71
Carbone Bros Pty Ltd v Shire of Harvey [2015] WASCA 248
LWP Property Group and City of Swan [2006] WASAT 308
Mehtcom 91 Pty Ltd and City of Gosnells [2009] WASAT 24
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Reid v Western Australian Planning Commission [2016] WASCA 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63
Introduction
1 These proceedings involve an application brought by Stream Focus Pty Ltd (applicant) pursuant to s 170(5) of the Planning and Development Act 2005 (WA) (PD Act) for review of requirements of the City of Armadale (respondent) in the form of conditions imposed, or purportedly imposed, under s 170(3) of the PD Act.
Statutory framework and jurisdiction
2 Western Australia has a 'split' planning system, under which subdivision control and assessment occurs at the state level by the Western Australian Planning Commission (Commission) and development control and assessment is generally undertaken at the local level: see Boulter and City of Subiaco [2007] WASAT 71 at [60]. The issues in this matter arise squarely from this bifurcation.
3 Part 10 of the PD Act provides for both subdivision and development control. Division 2 of Pt 10 provides for subdivision approval. Section 135 provides that a person may not subdivide any lot, or lay out, grant or convey a road without the approval of the Commission. The Commission may give approval under s 135 subject to conditions which are to be carried out before approval becomes effective: s 138(1) PD Act. The Commission must have due regard to the provisions of any local planning scheme applying to the land: s 138(2) PD Act.
4 The Commission must consult with a local government authority where a plan of subdivision may affect its functions, and offer the local government the opportunity to object and/or make recommendations: s 142 PD Act. After considering any objections or recommendations, the Commission must either approve the plan of subdivision, refuse it, or approve it subject to compliance with such conditions as the Commission thinks fit: s 143(1) PD Act. Unless otherwise determined by the Commission, the Commission's approval of a plan of subdivision of land to which a local planning scheme relates is taken to be approval by the responsible authority under the scheme of the carrying out of works necessary to enable subdivision of the land which are shown on the plan, or required by the Commission as conditions: s 157(1) PD Act.
5 Where the plan of subdivision includes construction and drainage of roads or waterways, the person proposing to subdivide land (subdivider) is responsible for such costs: s 158 PD Act. The subdivider has two choices regarding who performs such works. Section 158 of the PD Act provides as follows:
(1) Where a person who is subdividing land is required under this Part to construct and drain roads or construct artificial waterways shown on the plan of subdivision that person may
(a) carry out or cause to be carried out the construction and drainage at his or her own expense; or
(b) arrange for the local government to carry out the work on behalf, and at the cost and expense, of that person.
(2) Where the person does not make the arrangement with the local government, that person is to pay to the local government, on demand, an amount (calculated under subsection (3)) to cover the reasonable costs of the local government in supervising the construction and drainage.
(3) For the purposes of subsection (2) the amount is to be calculated as follows
(a) where the person has not engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 3% of the cost of the construction and drainage as estimated by the local government;
(b) where the person has engaged a consulting engineer and clerk of works to design and supervise the construction and drainage, the amount is to be 1½% of the cost of the construction and drainage as estimated by the local government.
(4) The local government may require the person to employ a consulting engineer and clerk of works to design and supervise the construction and drainage and that person, when required to do so by the local government, is to carry out the requirement.
6 The local government has the care, control and management of dedicated roads within its district: s 168(2) PD Act. Land shown on a diagram or plan of survey of a subdivision as a new road will be dedicated as a road when all of the new certificates of title for the land set out in the diagram or plan have been registered: s 168(1) and s 168(4) PD Act.
7 The Commission may, by notice published in the Gazette, fix minimum standards of construction with respect to roads and artificial waterways to be constructed on a proposed subdivision: s 169(1) PD Act.
8 Before the subdivider may commence construction and drainage of the new roads, it must provide the local government with the following information (per s 170(1) PD Act):
(a) drawings showing longitudinal and cross sections of the proposed road or artificial waterway; and
(b) specifications of the proposed road or artificial waterway; and
(c) such other information including information relating to levels, drainage, nature of soil, and physical features as the local government requires.
9 It is an offence to fail to comply with s 170(1) of the PD Act. Furthermore, pursuant to s 170(3), the local government may by written notice require the subdivider:
(a) to amend the drawings or specifications or both; and
(b) to comply with such further conditions as the responsible authority thinks fit to impose in respect of the proposed road or waterway,
for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission.
10 Accordingly, s 170 of the PD Act provides the local government with the opportunity to review the technical details of the proposed roadways and to require any amendments to the drawings or specifications, or compliance with any conditions for the purpose of ensuring that the construction and drainage of the road is consistent with the approval of the Commission.
11 Certificates of title cannot be created until the Commission endorses its approval on the diagram or plan of survey: s 146 PD Act. The diagram or plan of survey of the subdivision must be submitted to the Commission within the prescribed period for the Commission to endorse its approval on the diagram or plan. Section 145(4) PD Act provides that:
Subject to subsection (6), if the Commission is satisfied that
(a) the diagram or plan of survey is in accordance with the plan of subdivision approved by the Commission; and
(b) if that approval was given subject to conditions
(i) the conditions have been complied with or will be complied with at the time a certificate of title is created or registered; or
(ii) in the case of a diagram or plan of survey submitted in relation to a stage of subdivision, the conditions imposed in relation to that stage of subdivision, or that in the opinion of the Commission are relevant to that stage of subdivision or the subdivision as a whole, have been complied with or will be complied with at the time a certificate of title is created or registered,
the Commission is to endorse its approval on the diagram or plan of survey.
12 In practice, the Commission relies on the written advice from agencies and authorities specifically identified in the conditions (sometimes referred to as the 'clearance authority' or 'clearing authority') in determining whether the conditions have been fulfilled. Each agency or authority has its own process for clearance of subdivision conditions. The respondent's processes are detailed in the City of Armadale Subdivision and Development Guidelines 2014 (Subdivision Guidelines), which provides in its introduction as follows:
This document is to be interpreted as the minimum standard for subdivisional development and is to be read in conjunction with the City of Armadale Subdivisional Design and Construction Policy and the AUSSPEC Specifications adopted by the City of Armadale.
This document has been compiled to assist all parties involved in the subdivision process to meet the City of Armadale requirements in the developing of residential and industrial subdivisions within the City.
The City of Armadale is the authority responsible for the future care, control and management of the road and stormwater drainage infrastructure constructed to enable the subdivision of land. The City therefore retains the right to require a subdivision to be constructed to the standards detailed in this document and to its entire satisfaction. All designs submitted for approval will be checked against these guidelines and those found requiring additional information or which do not meet the specified requirements, will be returned for revision.
13 Section 170(5) of the PD Act creates a right of review in respect of any requirements imposed by the responsible authority pursuant to s 170(3):
A person who is aggrieved by a requirement of the responsible authority made under subsection (3) may apply to the State Administrative Tribunal for a review, in accordance with Part 14, of the responsible authority's decision.
14 The right of review referred to in s 170(5) falls within s 236(2) of the PD Act, as s 170(5) is a written law which gives the Tribunal jurisdiction to carry out a review in accordance with Pt 14.
15 Section 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that the Tribunal's review of a reviewable decision is by way of a hearing de novo, and is not confined to the matters that were before the original decisionmaker but may involve the consideration of new material, whether or not it existed at the time the original decision was made.
16 Section 27(2) of the SAT Act provides that the purpose of a review by the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review. The Tribunal's task is to make a fresh decision in place of the original decisionmaker, and s 29(1) of the SAT Act provides that the Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
The application
17 The relevant facts are not in dispute.
18 The applicant is the registered proprietor of Lot 3, Ninth Road, Brookdale, being the entirety of Certificate of Title, Volume 1412, Folio 711 (the site). The site is within the municipal boundaries of the respondent, the City of Armadale.
19 On 9 September 2016 (September notice), the respondent wrote to Civil Technology (the applicant's agent) as follows:
The submission entitled Proposed Subdivision of Lot 3 Ninth Road, Stage 1, Brookdale WAPC146447, submitted to the City of Armadale on 8 July 2016 on behalf of Stream Focus Pty Ltd, has been checked against the City's specifications and is now considered acceptable.
No further action is required on your part where listed requirements have already been addressed and acknowledged by the City.
20 The September notice set out 19 conditions and specified that the 'approval' was valid for 24 months. It did not specify any legislation pursuant to which the 'approval' was granted or the conditions imposed. The applicant appears to have accepted that the September notice was a written notice pursuant to s 170(3) of the PD Act, and the respondent has not challenged this.
21 On 15 September 2016, the Commission issued to the applicant an Approval Subject to Condition(s) Freehold (Green Title) Subdivision, Application No 153667 for the subdivision of the site into 79 residential lots and one public open space reserve (subdivision approval). Condition 1 of the subdivision approval provides as follows:
Engineering drawings and specifications are to be submitted, approved, and subdivisional works undertaken in accordance with the approved plan of subdivision, engineering drawings and specifications, to ensure that those lots not fronting an existing road are provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system and such road(s) are constructed and drained at the landowner/applicant’s cost.
As an alternative, and subject to the agreement of the Local Government the [Commission] is prepared to accept the landowner/applicant paying to the local government the costs of such road works as estimated by the local government and the local government providing formal assurance to the [Commission] confirming that the works will be completed within a reasonable period as agreed by the [Commission]. (Local Government)
22 The inclusion of the words Local Government in round brackets at the end of Condition 1 identifies the local government as the authority responsible for providing the Commission with written advice confirming that the condition has been fulfilled.
23 On 5 October 2016, the applicant applied to the Tribunal pursuant to s 170(5) of the PD Act seeking review of 16 of the 19 conditions imposed by the respondent in the September notice. The matter was referred to mediation and was reconsidered by the respondent pursuant to s 31 of the SAT Act in November 2016.
24 By letter dated 21 July 2016 (but which the parties agree was incorrectly dated and should have read '21 November 2016') (November notice) the respondent wrote to the applicant's agent as follows:
The submission entitled Proposed Subdivision of Lot 3 Ninth Road, Stage 1, Brookdale WAPC146447, submitted to the City of Armadale on 8 July 2016 on behalf of Stream Focus Pty Ltd, has been checked against the City's specifications and is now considered acceptable.
25 The November notice contained five conditions and specified that the 'approval' was valid for 24 months. Once again, it did not specify any legislation pursuant to which the 'approval' was granted or the conditions imposed. Conditions 4 and 5 were as follows:
4. Payment of a 5% twelve-month maintenance bond on all works in the development appertaining to the Council before survey release.
5. A Certificate of Compliance for all civil works is to be completed and returned to the City of Armadale at Practical Completion Inspection[.]
26 By consent, the following orders were made by the Tribunal on the documents on 13 December 2016 (13 December orders):
…
2. The notice dated 21 July 2016 and filed with the Tribunal on 1 December 2016 is taken to be the notice pursuant to section 170 of the Planning and Development Act 2005 for the purpose of these proceedings.
3. The words 'and is valid for 24 months from date of issue' are deleted from the last sentence on page 2 of the notice.
4. The following issues are to be determined by the Tribunal:
(a) whether Condition 4 of the notice is within the power of the respondent to impose; and
(b) whether Condition 5 of the notice is within the power of the respondent to impose.
…
8. The matter is listed for a final hearing to commence at 10 am on 15 February 2017 for a duration of three hours at 565 Hay Street, Perth, Western Australia.
27 The respondent's submissions were filed on 20 January 2017. By those submissions, the respondent conceded that aspects of conditions 4 and 5, as set out in the November notice, were outside its power to impose. This was because both conditions appeared to impose conditions on all works, not just those arising from the construction and drainage of the road. The respondent maintained, however, that this was not the intention of the conditions and that both conditions were capable of minor variation to rectify this. Accordingly, the respondent maintained that the Tribunal should vary the decision under review by substituting the following for conditions 4 and 5:
Condition 4: A defects liability period of 12 months shall apply to all works in the subdivision relating to the construction of roads and artificial waterways. A defects liability bond, equal to 5% of the final contract cost for the construction of roads and drainage, shall be paid to the City prior to the issue of practical completion. The City may call on the bond after practical completion of those works for the purpose of repairing any defects in those works.
Condition 5: A Certificate of Compliance for all civil works relating to the construction and drainage of roads and artificial waterways in the subdivision is to be completed and returned to the City of Armadale at Practical Completion Inspection. (the proposed varied conditions, or PVC 4 and 5)
28 The applicant's submissions were filed on 6 February 2017. The applicant maintained that it was an abuse of process for the respondent to put forward the proposed varied conditions because this was an attempt to 'reopen' the issues in dispute, agreed in the 13 December orders. The applicant submitted that the Tribunal should consider only whether PVC 4 and 5 were within the respondent's power to impose and, if not, delete them. The applicant also maintained that it had been unfairly disadvantaged by new materials annexed to the respondent's submissions (being extracts from the Local Government Guidelines for Subdivisional Development (Edition 2.1 2011) issued by the Institute of Public Works Engineering Australia WA Division (IPWEA Guidelines)) which were not part of the agreed bundle. The applicant's submission also addressed (in considerable detail) the substantive issues concerning why it maintained PVC 4 and 5 were beyond power. The applicant's objection to admission of the IPWEA Guidelines was eventually withdrawn.
The hearing
29 At the commencement of the hearing on 15 February 2017, the Tribunal heard and considered the applicant's submissions concerning abuse of process. The Tribunal also heard and considered the applicant's oral submissions that the hearing was intended to proceed only on the issues set out in order 4 of the 13 December orders as preliminary issues. The Tribunal determined these issues and indicated that reasons would be provided in due course. Those reasons are as follows.
30 On the question of whether the matter was intended to proceed to a preliminary hearing only, order 8 of the 13 December orders indicates that the matter was listed for a final hearing to commence at 10 am on 15 February 2017. The 13 December orders were made by consent on the documents. There is nothing in any of the documents which suggests the parties sought to have the matter dealt with as a preliminary issue. Counsel for the respondent indicated that he understood the matter to be listed for final hearing. The Tribunal is satisfied that the matter was before it for a final determination on the merits.
31 On the applicant's allegation of abuse of process, the Tribunal's jurisdiction derives from the enabling legislation and the SAT Act, and the purpose of a review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) SAT Act. Upon a finding that conditions 4 and 5 (as drafted in the November notice) were not within the power of the respondent to impose, the Tribunal would then be required to consider what would be the correct and preferable decision in all of the circumstances. Options under s 29(3) of the SAT Act include varying the notice to delete conditions 4 and 5 (as proposed by the applicant), varying the notice as per the proposed varied conditions (as proposed by the respondent), or setting aside the decision and either substituting its own decision, or sending the matter back to the respondent for reconsideration.
32 Although order 4 of the 13 December orders indicates that the validity of conditions 4 and 5 are issues for determination, the orders do not prevent the Tribunal from considering any other matters relevant to determining the correct and preferable decision in all of the circumstances. The SAT Act, particularly s 9(a) and s 32(7)(a), require the Tribunal to do so, within the bounds of procedural fairness. For these reasons, the Tribunal was satisfied that it was not limited to determining only the issues set out in order 4 of the 13 December orders.
33 On the question of procedural fairness, the applicant's submissions were not filed until 6 February 2017. The applicant had an opportunity to respond to the respondent's submissions concerning the proposed varied conditions, and did substantively respond. Moreover, neither the applicant nor the respondent wanted to adjourn the matter to adduce further evidence. For these reasons, the Tribunal was satisfied that the applicant was not unfairly disadvantaged in preparing for and conducting the hearing, and the final hearing proceeded.
Issue
34 The decision under review is the respondent's decision to issue the November notice subject to conditions 4 and 5. At the hearing the parties accepted that the decision cannot be affirmed in its present form and the hearing proceeded on the basis that the issue before the Tribunal is whether the correct and preferable decision is to vary the decision:
• to delete conditions 4 and 5 entirely; or
• to vary conditions 4 and 5 as per the proposed varied conditions.
- Neither of the parties indicated any other options.
Evidence
35 The following documents were tendered by consent:
1) Exhibit 1: Commission's subdivision approval;
2) Exhibit 2: November notice;
3) Exhibit 3: Stamped working drawings; and
4) Exhibit 4: IPWEA Guidelines.
36 The Tribunal has also had regard to other relevant documents including the Subdivision Guidelines referred to at [12] and the respondent's Certificate of Compliance - Civil Works form, as referred to below.
Applicant's contentions
37 The applicant's position is that the November notice should be varied to delete conditions 4 and 5 because the proposed variations are outside the respondent's power to impose.
38 The applicant was not legally represented and its submissions were often difficult to comprehend. The Tribunal understands its contentions to be that the respondent may not impose PVC 4 and 5 because:
1) The respondent has not established that PVC 4 and 5 are necessary to ensure that the construction and drainage of the roads is consistent with the Commission's approval, or a nexus between the proposed works and PVC 4 and 5. Based on the applicant's written and oral submissions, the Tribunal understands this to be a contention that the conditions do not reasonably and fairly relate to the development permitted.
2) Section 158 of the PD Act creates a statutory obligation on the respondent to supervise the construction and drainage of roads, and this obligation cannot be avoided by imposing a 12 month defects liability period and bond, or by requiring a certificate of compliance. The need for such conditions could only arise from the respondent's breach of its supervisory obligations.
3) Once the Commission endorses its approval of the plan pursuant to s 145(4) of the PD Act, the roads are 'deemed' to be constructed to the requirements of the Commission's approval and the planning and supervisory roles of the Commission and the respondent are functus. The respondent has no power to 'police' the quality of the roads after endorsement.
4) Once the road is dedicated to public use, the respondent has the care, control and management of the road pursuant to s 168(2) of the PD Act and has no power to require the applicant to be responsible for latent defects.
5) The bond is a fee which is prohibited by s 261 of the PD Act and Sch 2 of the Planning and Development Regulations 2009 (WA) (PD Regulations).
6) PVC 5 is imposed upon a third party, which the respondent has no power to do.
Respondent's contentions
39 The respondent maintains that the proposed varied conditions are valid and within the respondent's power to impose. The respondent's position is that the November notice should be varied to substitute the respondent's proposed varied conditions.
40 The respondent maintains that the power and discretion provided to it by s 170 of the PD Act is very broad, provided the conditions are for the purpose of ensuring that the construction and drainage of the road is consistent with the approval of the Commission. The respondent maintains that the phrase 'consistent with the approval of the Commission' includes not only physical placement of the roads in accordance with the plans, but also that roads are constructed by the subdivider to an adequate standard: Mehtcom 91 Pty Ltd and City of Gosnells [2009] WASAT 24 (Mehtcom) at [30] and [44].
41 The respondent further maintains it is selfevident that both PVC 4 and 5 are for the purpose of ensuring that construction and drainage of the roads is consistent with the approval of the Commission, particularly that the roads be constructed to an adequate standard (T:41; 15.02.17). The respondent maintains (at paragraph 15 of its submissions) that PVC 4 is for the purpose of ensuring the works carried out by the applicant in construction and drainage of the roads is consistent with the Commission's approval because it provides a mechanism for ensuring that any defects or deterioration in the construction and drainage of roads arising in the first 12 months are identified and repaired. In oral submissions, the respondent referred to 'powerful public policy reasons for having a defects liability period to address latent defects because it goes to the safety of … what ends up being a public asset' (T:45; 15.02.17). Furthermore, the respondent notes that defects liability periods and bonds are standard industry practice, and are recommended in part 1.21 of the IPWEA Guidelines.
42 The respondent submits (at paragraph 22 of its submissions) that PVC 5 is 'a central means by which the Respondent can ensure "that the construction and drainage of the road … is consistent with the approval of the Commission"' and notes that it is in accordance with best practice as detailed in clause 1.19 of the IPWEA Guidelines.
43 The respondent maintains that the applicant's submissions to the effect that the respondent lacks power to impose PVC 4 and 5 are fundamentally misconceived. The respondent maintains that its role in supervising the works is more limited than suggested by the applicant, and it is unreasonable to assume that the respondent's limited supervisory role would be expected to rule out latent defects. The need for such conditions does not arise from the respondent's failure to adequately supervise, as the applicant contends.
44 The respondent further maintains that the power to impose conditions is provided by s 170(3) of the PD Act, and s 145(4) does not limit the power to impose conditions as the applicant contends. It maintains that the applicant's argument that the roads are 'deemed' to be constructed to the requirements of the Commission's approval upon endorsement of the diagram or plan of survey is misconceived.
45 Likewise, the respondent does not agree that the conditions are inconsistent with the respondent's maintenance responsibilities under s 168(2) of the PD Act. Rather, the respondent maintains that the situation is analogous to others where the local government requires subdividers to perform works in road reserves, such as maintaining landscaping or works in public open space, for a limited period after the land is reserved: see LWP Property Group and City of Swan [2006] WASAT 308.
46 Finally, the respondent maintains that the bond contemplated by PVC 4 is security for an obligation, held on trust by the respondent, for the sole purpose of fulfilling the condition. It will be returned to the applicant if there are no issues arising from latent defects. The respondent maintains that this is different from a fee levied by the local government, and s 261(5) of the PD Act is not relevant to the present matter.
Consideration
Section 170(3)
47 Power to approve subdivision vests solely with the Commission: s 135 PD Act. Although the Commission is required to have due regard to the provisions of a local planning scheme (s 138(2) PD Act) and is required to consult with the relevant local government (s 142 PD Act), the local government itself lacks statutory power to impose subdivision conditions.
48 Prior to the PD Act, the local government's powers in respect of proposed streets derived from s 295 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (LG(MP) Act) (see Planning and Development Bill 2005 (WA) Explanatory Memorandum). Section 158 of the PD Act (Expenses of construction etc. of roads), s 168 of the PD Act (Road, creation of etc. on subdivision), s 169 of the PD Act (Roads and waterways, minimum standards of construction for), and s 170 of the PD Act (Proposed road or waterway, drawings etc. of required) all derive from former s 295 of the LG(MP) Act. Although the provisions of former s 295 of the LG(MP) Act have been separated and dispersed throughout Pt 10 of the PD Act (as well as into provisions of the Land Administration Act 1997 (WA)), the fact that the origin of s 158, s 168, s 169, and s 170 of the PD Act is a single provision of the LG (MP) Act reinforces their connection, interrelationship and purpose: providing the local government with control over construction of roads which will ultimately fall within the local government's care, control and management.
49 This is the context in which s 170 of the PD Act operates. After the subdivision plan has been approved by the Commission pursuant to s 143 of the PD Act, the respondent is empowered by s 170(3) to require the subdivider:
…
(a) to amend the drawings or specifications or both; and
(b) to comply with such further conditions as the responsible authority sees fit to impose in respect of the proposed road or waterway,
for the purpose of ensuring that the construction and drainage of the road or construction of the artificial waterway is consistent with the approval of the Commission.
50 Given that Pt 10 of the PD Act does not otherwise empower the respondent to impose conditions in respect of subdivision of land, the 'further conditions' referred to in s 170(3)(b) necessarily means conditions to be imposed by the respondent, which are in addition to those imposed by the Commission pursuant to s 143(1) of the PD Act.
51 The respondent's power to impose conditions pursuant to s 170(3)(b) is limited. Any such conditions must be 'in respect of the proposed road or waterway' (in this case, roads only) and 'for the purpose of ensuring that the construction and drainage of the road … is consistent with the approval of the Commission'.
52 Determining the permissible scope of any s 170(3) condition requires consideration of what constitutes the 'approval of the Commission'. In the present case, the subdivision approval is as follows:
The [Commission] has considered the application referred to and is prepared to endorse a deposited plan in accordance with the plan datestamped 13 May 2016 once the condition(s) set out have been fulfilled.
53 There are 23 conditions to the subdivision approval to be fulfilled pursuant to the approval. The 23 conditions are predominantly in the same terms as those published by the Commission in its Model Subdivision Conditions Schedule (May 2016). Conditions 1 to 9 pertain to the Road Movement Network (and include model conditions T1 T3, T11, T20, T16, T5, T9 and T10 respectively) and Conditions 10 to 14 pertain to Drainage and Site Works (and include model conditions D5, D1, D2, D3 and D8 respectively). The local government is the clearing authority for 18 of the 23 conditions, and is the clearing authority for all of Conditions 1 to 14.
54 The conditions which pertain generally to construction of new roads are Conditions 1, 2 and 3. Condition 1 mirrors the language of model condition T1, which part 12 of the Model Subdivision Conditions Schedule notes at page 30 applies to all approvals where plans show lots without existing road frontage requiring construction of new roads. The key aspects of Condition 1 include that:
• subdivisional works are to be undertaken in accordance with the approved plan of subdivision, engineering drawings, and specifications to ensure that all lots have road frontage which is connected by constructed roads to the local road system; and
• such roads are to be constructed and drained at the applicant's cost.
55 Likewise, key aspects of Conditions 2 and 3 include that subdivisional works are to be undertaken in accordance with the approved plan of subdivision, engineering drawings, and specifications to ensure that roads connect seamlessly with existing roads and for the provision of footpaths and/or shared paths.
56 Conditions 11 and 13 require that subdivisional works be undertaken in accordance with the approved plan of subdivision, engineering drawings, and specifications for grading and stabilisation of land and stormwater drainage.
57 Condition 1 specifically requires that all lots 'are provided with frontage to a constructed road(s) connected by a constructed road(s) to the local road system' (emphasis added). In Auro Pty Ltd and Western Australian Planning Commission [2008] WASAT 253 at [19], the Tribunal considered the meaning of 'constructed road' in the context of a condition imposed by the Commission in similar terms to Condition 1. The Tribunal considered that the phrase 'constructed road' means more than merely 'traffickable'. Rather, it requires construction to an adequate standard. The Tribunal considered this 'an obvious implication from the condition without which the purpose of the condition to provide proper access to the lots could not be achieved'. Likewise, in Mehtcom the Tribunal noted, in respect of the same condition, that it is 'clearly implicit' that 'all subdivisional roads shown as approved on the subdivision plan are to be constructed by the subdivider to an adequate standard': Mehtcom at [30].
58 Although the applicant maintains that the phrase 'consistent with the approval of the Commission' is limited to ensuring that the physical placement of the roads is as set out in the plan, for the reasons set out above, the Tribunal does not agree. '[C]onsistent with the approval of the Commission' includes that the roads are constructed and drained to an adequate standard and that 'such roads are to be constructed and drained at the applicant's cost'.
Whether PVC 4 and 5 are 'in respect of the proposed road' and 'for the purpose of ensuring that the construction and drainage of the road is consistent with the approval of the Commission'
59 The phrase 'in respect of' means 'in relation or reference to': Macquarie Dictionary Online (2017). In other words, the conditions must relate to the proposed road. The conditions also must be for the purpose of ensuring compliance with the Commission's approval. 'Purpose' means the object for which anything exists, or is done, made, used, et cetera; an intended or desired result, end or aim; or intention or determination: Macquarie Dictionary Online (2017). Accordingly, the conditions must be directed to, or have as their object or intended or desired result, ensuring compliance with some aspect of the Commission's approval. This would include matters such as ensuring that the physical placement of the roads is as set out in the plan, that the roads are constructed and drained to an adequate standard, and that all of this is done at the applicant's cost.
PVC 4
60 A defects liability period is a standard feature of construction contracts.
A defects liability period (DLP) is a period, following the date for practical completion, during which the contractor is obliged to correct defects which are notified or discovered. The concept is a creation of contract, meaning both that, generally, the principal's rights and the contractor's obligations supplement those which already exist at general law and that regard needs to be had to the actual provisions in the specific contract.
(I Bailey and M Bell, Construction Law in Australia (3rd ed, 2011) at [9.73])
61 A defects liability bond is a form of security.
The purpose of a security or a retention fund is to ensure the due and proper performance of the contract ... The form of security, depending on the contract, may be a bank guarantee or unconditional undertaking, retention monies, insurance bonds, or an interest-bearing deposit. (Citations omitted)
(I Bailey and M Bell, Construction Law in Australia (3rd ed, 2011) at [9.48])
62 In the present matter, there is no contract between the applicant and the respondent to construct the roads which will eventually fall within the respondent's care, control and management. The respondent seeks to impose obligations on the applicant via PVC 4 to achieve a similar outcome.
63 PVC 4 is in two parts: a 12 month defects liability period relating to the construction of roads in the subdivision, and a defects liability bond in the amount of 5% of the final contract cost for the construction of roads and drainage. The respondent provided no detail as to the precise terms of either the defects liability period or the bond, or what form they would take. The respondent's Subdivision Guidelines provide some guidance, referring to defects liability periods as commencing once practical completion is attained, and detailing the following steps to secure return of the defects liability bond:
At the expiry of the defects liability period the Consulting Engineer shall:
• Arrange for a joint inspection of the subdivision;
• Advise the City's Subdivision Engineer of all defects in writing for City of Armadale confirmation;
• Advise when all defects have been addressed and arrange for a second joint inspection; and
• Request the return of the defects liability bond and if applicable the soil stabilisation bond.
Regardless of the time lapsed since practical completion, the defect liability period is not considered over until all of the above is addressed and the bond monies have been returned.
(Subdivision Guidelines at pages 32 33)
64 The defects liability period described above imposes a 12 month period after practical completion during which the applicant remains responsible for rectification of defects arising from construction and drainage of the roads. The defects liability bond provides security to the respondent that such obligations will be met by the respondent. The Tribunal is satisfied that both are squarely 'in respect of' the proposed road. PVC 4 limits the defects liability to works in the subdivision relating to the construction of the roads. It also limits the defects liability bond to 5% of the final contract price for the construction of roads and drainage. Both relate to the roads being constructed by the subdivider pursuant to the subdivision plan. There is sufficient relationship between the roads and both the defects liability period and the defects liability bond to support a finding that PVC 4 relates to, or is in respect of, the proposed road.
65 The Tribunal is also satisfied that the defects liability period and the defects liability bond have as their purpose (being their object and intended and desired result) ensuring compliance with the subdivision approval, particularly ensuring compliance with the Commission's conditions that the roads are constructed and drained to an adequate standard and at the applicant's cost.
66 The Tribunal does not accept, as maintained by the applicant, that the respondent has an ulterior purpose for imposing PVC 4: either to circumvent its obligation to supervise the construction and drainage of roads, or to protect itself from its own breach of such supervisory obligations.
67 It is evident from the IPWEA Guidelines, which are intended to encompass best practice minimum engineering standards, that the oversight role undertaken by the local government under s 158 of the PD Act is of a limited nature. Part 1.17.3 of the IPWEA Guidelines provides that:
The consulting engineer shall audit the contractor's work on a regular basis and in particular at the milestone stages as set out in the construction schedules and agreed to with the local government. Inspections by the local government shall not in any way diminish the responsibility of the consulting engineer to adequately audit the works. Auditing shall include regular site inspections.
68 Part 1.17.4 of the IPWEA Guidelines recommends that the local government's representative meet jointly on site with the consulting engineer and contractor or clerk of works at various stages throughout the works. In respect of road works, part 1.17.4.1 recommends a minimum of six inspections at the following stages:
1. when the road has been boxed out and the sub-grade shaped and compacted;
2. when the sub-base has been placed, graded and compacted to shape, level and specifications;
3. when the base course has been placed, graded, compacted and water bound to correct shape and level before priming or where asphalt is used as a base course medium this surface has been laid and compacted;
4. immediately before and during kerbing;
5. before the placement of asphalt or sprayed surface wearing course; and
6. prior to construction of the pathways.
69 Likewise, in respect of drainage works, part 1.17.4.2 of the IPWEA Guidelines recommends a minimum of three inspections.
70 Similarly, the respondent's Subdivision Guidelines (at page 29) refer to fortnightly site meetings, and joint inspections involving the project superintendent and local government at five stages between site clearing and landscaping/irrigation works.
71 'Supervision', as described above, is in the nature of oversight only. It would not result in a level of knowledge necessary to satisfy the respondent that the roads are constructed and drained to an adequate standard. For these reasons, the Tribunal does not accept that the respondent's oversight role is as extensive as suggested by the applicant. The Tribunal is not satisfied that the purpose of PVC 4 is either to circumvent the respondent's obligation to supervise the construction and drainage of roads, or to protect itself from its own breach of those supervisory obligations.
72 The Tribunal is satisfied that the purpose of PVC 4 is to provide the respondent with a mechanism to ensure that, in circumstances where:
• the respondent has not had the daytoday supervision and control over the works;
• aspects of the works may not be visible during site inspections; and
• defects may not yet be apparent because the roads and are not yet in regular use;
- the roads are constructed and drained to an adequate standard wholly at the applicant's cost.
73 The applicant objected to PVC 4 in submissions on the basis that the condition 'shifts the litigation burden' to the applicant. Although there may be other mechanisms available to the respondent, it is open to the respondent to choose a mechanism which best meets the objective of ensuring that the applicant, rather than the respondent, bears the costs of the roads being constructed and drained to an adequate standard. PVC 4 is consistent with this objective.
PVC 5
74 PVC 5 requires the applicant to provide a Certificate of Compliance for all civil works relating to the construction and drainage of roads and artificial waterways in the subdivision at the Practical Completion Inspection (certificate of compliance). The respondent's Certificate of Compliance Civil Works form requires certification by the project superintendent and the superintendent's representative as follows:
We, the undersigned, acting in our capacity as the Project Superintendent and Clerk of Works, confirm that the roads and stormwater drainage infrastructure for the subdivision noted above are complete and in accordance with the approved design drawings and the specification.
75 The Tribunal is satisfied that requiring a certificate of compliance in such form is 'in respect of' the proposed road. The Tribunal is also satisfied that its purpose is to ensure that the respondent has sufficient evidence to be reasonably satisfied that the construction and drainage of the road is consistent with the approval of the Commission in circumstances where they have not had the daytoday supervision and control over the works, and where aspects of the work may not be visible during site inspections. It provides evidence that the works are not only complete, but also that they are in accordance with the approved drawings and specifications. In the Tribunal's view, this falls squarely within the purpose of ensuring that the construction and drainage of the roads are consistent with the approval of the Commission.
Conclusion
76 For the reasons set out above, the Tribunal is satisfied that both PVC 4 and 5 are for the purpose of ensuring not only that the physical placement of the roads is in accordance with the plans, but also that the roads are constructed by the subdivider to an adequate standard, and that if the roads and drainage are not free from latent defects, that the applicant will bear the cost of ensuring that this subdivision condition is ultimately achieved. The Tribunal is accordingly satisfied that they are for the purpose of ensuring that the construction and drainage of the roads is consistent with the approval of the Commission, as required by s 170(3) of the PD Act.
Whether there are any other constraints on the power to impose PVC 4 or 5
77 Having found that PVC 4 and 5 are in respect of the proposed roads, and for the purpose of ensuring that the construction and drainage of the road is consistent with the approval of the Commission as required by s 170(3) of the PD Act, the next issue is whether there are any other constraints on the Tribunal's power (as substitute decisionmaker pursuant to s 29(1) of the SAT Act) to impose PVC 4 and 5: see Reid v Western Australian Planning Commission [2016] WASCA 181 (Reid) at [16]. The applicant has raised a number of specific contentions which are addressed in turn.
Whether there is a nexus between PVC 4 and 5 and the proposed works
78 The applicant contends that the respondent has not tendered evidence capable of establishing a connection between the need for PVC 4 and 5 and the effects of the development. Based on the applicant's written and oral submissions the Tribunal understands this to be a contention that the conditions do not reasonably and fairly relate to the development permitted. This is the second limb of the test articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury). The Newbury test was applied by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63 at [57] [58]:
A condition attached to a grant of planning permission will not be valid … unless:
1. The condition is 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.
A condition attached to a grant of planning permission may be invalid although its ulterior purpose is not the sole purpose. If the ulterior purpose is a substantial purpose for which the authority is exercising its power, the condition is invalid. (Footnotes omitted)
79 In Reidat [26], the Chief Justice noted that:
[T]he reasons given by the High Court in Temwood should be assessed in the context of the decisions in Lloyd v Robinson and Cardwell, each of which establish that the validity of a condition imposed upon an approval to the subdivision of land depends upon aconnection being established between the purpose for which the condition was imposed, and the likely or possible consequences of the subdivision if approved. Whether or not there is such a connection in any case depends upon the particular facts and circumstances of that case[.] (Emphasis added)
80 The applicant maintains that PVC 4 and 5 do not reasonably and fairly relate to the development permitted because the respondent has not established facts capable of demonstrating a current need for conditions. Such facts, the applicant maintains, ought to include matters such as a record of faulty and/or unsatisfactory workmanship in constructing roads by the applicant, or a specific reason to believe the roads constructed in the present subdivision contain latent defects or have not been constructed in accordance with the plans.
81 As discussed at [59] [76] above, the Tribunal is satisfied on the evidence to hand that PVC 4 and 5 are for the purpose of ensuring that the construction and drainage of the road is consistent with the approval of the Commission, and not some ulterior purpose. The Tribunal is also satisfied that there is sufficient connection between this purpose and the likely or possible consequences of the approved subdivision. Such possible consequences include that latent defects in the applicant's construction or drainage of the roads may only become apparent after the roads have been placed in regular use, after they have been dedicated, when the applicant may not otherwise be responsible to the respondent for rectification. '[C]onsistent with the approval of the Commission' requires that the roads be constructed to an adequate standard at the applicant's cost. The purpose of the defects liability period, the defects liability bond, and the certificate of compliance are all factually linked to the likely or possible consequences. The need for a bond and defects liability period arises from the fact that:
• the respondent has not had the daytoday supervision and control over the works;
• aspects of the works may not be visible during site inspections; and
• defects may not yet be apparent because the roads and are not yet in regular use.
82 The need for the certificate of compliance arises from the fact that the respondent has not had daytoday supervision and control over the works and aspects of the works will not be visible at final inspection.
83 In the absence of any relevant authority to the contrary, the Tribunal is not satisfied that there is, as suggested by the applicant, a need to establish facts capable of demonstrating a current need for conditions. A connection to the likely or possible consequences is sufficient. The Tribunal is satisfied on the present facts that the connection has been established.
84 For the sake of completeness, the Tribunal understands that the applicant does not contend that the purpose of ensuring that the construction and drainage of the road is consistent with the approval of the Commission is not itself a proper 'planning purpose', only that the respondent has an ulterior purpose. Likewise, the applicant does not contend that PVC 4 and 5 are so unreasonable that no reasonable planning authority could have imposed them. To the contrary, the applicant concedes that these are very commonly imposed conditions, and the evidence of the IPWEA Guidelines confirms that they are considered best practice in the industry.
Section 158 of PD Act
85 The applicant contends that s 158 creates a statutory obligation on the respondent to supervise the construction and drainage of roads which cannot be avoided by imposing a 12 month defects liability period and bond, or by requiring a certificate of compliance. The need for such conditions, the applicant maintains, could only arise from the respondent's breach of its supervisory obligations.
86 The suggestion seems to be that where a subdivider elects to carry out (or cause to be carried out) the construction and drainage of subdivision roads at its own expense, s 158(2) and s 158(4) together create the only mechanism by which the respondent is able to 'supervise' the works. Accordingly, no other mechanisms for supervision (such as imposing a defects liability period, a defects liability bond, or requiring a certificate of compliance) are necessary or permissible.
87 The applicant has not referred the Tribunal to any authority to support this proposition, and there is nothing in the specific language of s 158, its purpose, context or its legislative history which supports this contention. In the absence of some specific authority to support the applicant's contention, the Tribunal is not satisfied that s 158 of the PD Act was intended to be the entire expression of the respondent's power to control the construction of roads forming part of a plan of subdivision, or that the need for PVC 4 and 5 could only arise by reason of the respondent's breach of its supervisory obligations.
Section 145(4) of the PD Act
88 The applicant contends that once the Commission endorses its approval of the plan pursuant to s 145(4) of the PD Act, the roads are 'deemed' to be constructed to the requirements of the Commission's approval and the planning and supervisory roles of the Commission and the respondent are functus. The applicant says the respondent has no power to 'police' the quality of the roads after endorsement for this reason.
89 Again the applicant has not referred the Tribunal to any relevant authority to support this proposition, and there is nothing in the specific language of s 145, its purpose, or its context which supports this contention.
90 Once the plan has been endorsed and the roads dedicated, the respondent's power in respect of the roads arises pursuant to s 168(2) of the PD Act. The roads fall within the respondent's care, control and management. If a latent defect becomes evident, the applicant's obligations arise pursuant to PVC 4. It is part of the applicant's original obligation to construct the roads to an adequate standard at its own expense. It is not, as the applicant suggests, a new obligation which arises after the respondent's supervisory powers are functus.
91 In any event, in the absence of specific relevant authority (to which the Tribunal has not been referred) the Tribunal does not accept the applicant's contention that s 145(4) of the PD Act 'deems' the roads to be constructed to the requirements of the Commission's approval upon endorsement of the plan by the Commission.
Section 168 of the PD Act
92 The applicant maintains that once the road is dedicated to public use, the respondent has the care control and management of the road pursuant to s 168(1) of the PD Act and has no power to require the applicant to be responsible for latent defects. For the reasons details at [90] above, the Tribunal does not accept this proposition.
Section 261 of the PD Act
93 The applicant maintains that the bond is a fee which the respondent has no statutory power to levy outside of Sch 2 of the PD Regulations.
94 Section 261(5) of the PD Act provides that the local government is not to impose a fee for an action or service in relation to a planning matter that is inconsistent with a fee prescribed or provided for under s 261. Section 261(3) provides that:
A local government is not to
(a) impose any fee for the issue of a licence or the provision of a service in relation to a planning matter; or
(b) require payments for costs and expenses incurred by the local government in issuing a licence or providing a service in relation to a planning matter,
unless the licence or service is prescribed under subsection (2)(a).
95 Section 261(2)(a) provides that the Governor may make regulations providing for, or in respect of, the licences and services in respect of planning matters for which fees may be imposed by the local government. Those fees are as set out in Sch 2 of the PD Regulations.
96 The applicant maintains that the defects liability bond is a fee for 'the provision of a service in relation to a planning matter' because 'fee' is defined in s 261(1) of the PD Act to include 'charge', and a charge is 'a financial liability or commitment'. The applicant maintains that the defects liability bond is 'a substantial financial commitment, and satisfies the meaning of a "charge" or a "fee"'.
97 The Tribunal does not agree. It is evident from the wording of s 261 of the PD Act that it pertains to administrative services and actions performed by the local government in the planning and development process, not to civil works. Section 261 refers to fees and charges for issuing licences and approvals, or obtaining expert advice. Schedule 2 of the PD Regulations confirms this, providing for a range of maximum fees which may be imposed for determining applications, providing zoning certificates, replying to property settlement questionnaires, and providing written planning advice.
98 The Tribunal is not satisfied that s 261 of the PD Act applies to civil works undertaken by the local government pursuant to s 158(1)(b). If a subdivider arranges for a local government to carry out the work of constructing and draining roads in the subdivision on its behalf pursuant to s 158(1)(b) of the PD Act, the subdivider could not maintain that s 261(3) or s 261(5) of the PD Act prevent the local government from charging for such works.
99 In any event, a bond is not a fee. As noted by the High Court (albeit in a different context) in Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30 at [34]:
Unlike a simple contract containing an exchange of promises, which are classified as conditions or warranties, a bond is an instrument under seal, usually a deed poll, whereby the obligor is bound to the obligee. The ordinary form of bond in use in modern times is not merely for a certain money payment, but is accompanied by a condition in the nature of a defeasance, the performance or occurrence of which discharges the bond. (Emphasis added)
100 A defects liability bond is not a fee. It is a refundable security to ensure the applicant's construction and drainage of the roads is consistent with the subdivision conditions. It provides the local government with security for the subdivider's performance of its obligations pursuant to s 158 of the PD Act and Condition 1. It is not a charge for the issue of a licence or the provision of a service in relation to a planning matter, or payment for costs and expenses incurred by the local government in issuing a licence or providing a service in relation to a planning matter.
101 The applicant suggests, however, that if it defaulted on its obligation to rectify latent defects and the respondent used the defects liability bond to pay for the costs of rectification, the bond would be a 'fee'. The Tribunal does not agree. It would be payment for works pursuant to s 158(1)(b). Section 158(1) of the PD Act requires a subdivider to bear the cost and expense of constructing and draining roads shown in the plan of subdivision to an adequate standard. Although s 158(1) does not specifically say so, it is implicit that the subdivider is required to either carry out the work to an adequate standard or pay the respondent to do so on the subdivider's behalf. In such circumstances, the respondent would be entitled to receive the expense of carrying out the works on behalf of the subdivider pursuant to s 6.15(1)(a)(vi) of the Local Government Act 1995 (WA). Such funds would be income from 'any other source, authorised by … another written law': see Carbone Bros Pty Ltd v Shire of Harvey [2015] WASCA 248 at [24] (per McLure P).
102 The respondent is empowered by s 170(3)(b) of the PD Act to require the subdivider to comply with such further conditions as it thinks fit to impose in respect of the proposed road for the purpose of ensuring that the construction and drainage is consistent with the approval of the Commission. The applicant has not referred the Tribunal to any relevant authority to support the proposition that a condition imposing a defects liability bond falls outside the scope of the respondent's s 170(3) power, and there is nothing in the specific language of s 170, its purpose, or its context which supports this contention. In the absence of clear authority on this point, the Tribunal is satisfied that the respondent is empowered to impose a defects liability bond by a condition pursuant to s 170(3).
Condition on a third party
103 The applicant's final argument is that PVC 5 is imposed upon a third party, which the respondent has no power to do. The Tribunal does not agree. PVC 5 requires a certificate of compliance at practical completion. This is an obligation imposed upon the applicant. It is immaterial that the applicant will have to obtain the certificate from a suitably qualified person (who may be a third party). It remains a condition imposed on the applicant, not a third party.
Conclusion
104 For the reasons set out above, the Tribunal (standing in the shoes of the respondent pursuant to s 29(1) of the SAT Act) is not satisfied that any of the applicant's contentions impose any other constraints on the Tribunal's power to impose PVC 4 and 5.
Conclusion
105 The Tribunal is satisfied in all the facts and circumstances that the correct and preferable decision in this matter is that the respondent's decision on 21 November 2016 to issue the written notice should be varied to amend conditions 4 and 5, in the terms of the proposed varied conditions. The Tribunal is satisfied that the wording of the proposed varied conditions (with the addition of the word 'of' between 'construction' and 'roads' in the first sentence of Condition 4) communicates with sufficient clarity the extent and limitations of the obligations imposed on the applicant by the conditions.
Orders
The final orders of the Tribunal are:
1. The application for review is allowed in part.
2. The respondent's decision on 21 November 2016 to issue the written notice is varied to amend Condition 4 and Condition 5 as follows:
Condition 4: A defects liability period of 12 months shall apply to all works in the subdivision relating to the construction of roads and artificial waterways. A defects liability bond, equal to 5% of the final contact cost for the construction of roads and drainage, shall be paid to the City prior to the issue of practical completion. The City may call on the bond after practical completion of those works for the purpose of repairing any defects in those works.
Condition 5: A Certificate of Compliance for all civil works relating to the construction and drainage of roads and artificial waterways in the subdivision is to be completed and returned to the City of Armadale at Practical Completion Inspection.
3. The application is otherwise dismissed.
I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS K WHITNEY, MEMBER
8
7