TIERNEY and WESTERN AUSTRALIAN PLANNING COMMISSION

[2011] WASAT 192

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   TIERNEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 192

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   1 DECEMBER 2011

FILE NO/S:   DR 369 of 2011

BETWEEN:   GARY TIERNEY

CHERYL TIERNEY
Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law - Tribunal affirmed condition of survey strata subdivision approval requiring public open space contribution of 10% of the area of the land being subdivided - Whether any error of law disclosed - SAT has no power or function in relation to when owner may pay cash in lieu of setting aside land for public open space or in relation to application of money received in lieu - Standard condition requiring public open space contribution is not vague or uncertain

Legislation:

Planning and Development Act 2005 (WA), s 146(3), s 153, s 154, s 154(2), s 155, s 244, s 251(3)
Residential Design Codes of Western Australia (2010), Table 1 
State Administrative Tribunal Act 2004 (WA), s 3(1), s 29(1), s 31, s 32(2), s 77, s 83, s 83(1)(b), s 83(2)(b)
Town Planning and Development Act 1928 (WA), s 20C

Result:

Application for a review of Tribunal's determination dismissed

Category:    B

Representation:

Counsel:

Applicants:     Mr I McKellar (Agent)

Respondent:     Ms B Allen with Mr D Jones

Solicitors:

Applicants:     N/A

Respondent:     State Solicitor's Office

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

Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98

Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130

Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181

Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124

Tierney and Western Australian Planning Commission [2011] WASAT 153

REASONS FOR DECISION: 

Summary of judicial member's decision

1. Mr and Mrs Tierney sought a review by a judicial member of a determination of the Tribunal, when constituted without a legally qualified member, in which the Tribunal affirmed the decision of the Western Australian Planning Commission to impose a condition on a survey strata subdivision approval requiring that 10% of the land area, in a position to be agreed with the Commission, is to be ceded as public open space.

2. The grounds of review generally involved challenges to findings of fact, which are not able to be reviewed by a judicial member, and/or were misconceived.

3. The judicial member confirmed that the Tribunal does not have any power or function in relation to when a land owner may pay cash in lieu of setting aside land for public open space or in relation to how money received in lieu can or should be applied.  In particular, the Tribunal was not required to determine whether there was a need for cash to buy open space in the locality.  Rather, the Tribunal's function was to determine whether a condition requiring that 10% of the site is to be ceded for public open space is lawful and, if so, reasonable and appropriate.  The Tribunal properly performed this function.

4. The judicial member noted that the condition requiring that 10% of the land area, in a position to be agreed with the Commission, is to be ceded as public open space, is in a standard form of condition and reflects a policy that has been applied in subdivision assessment in Western Australia for the past 65 years. The condition is in an appropriate form and is not vague or uncertain. The location of the area of public open space is usually an incidental aspect of a subdivision. Furthermore, although, in many subdivisions, the size or location of the land make it inappropriate for the owner to, in fact, cede 10% of the site area as public open space, s 153 and s 154 of the Planning and Development Act 2005 (WA) provide a mechanism for the payment and allocation of cash in lieu in such cases. In circumstances where, such as in the present case, it is found that a subdivision will facilitate an increase in the number of residences on a site, and that there is no cogent reason to depart from the policy that 10% of the gross subdivisible area is to be given up for public open space, the imposition of the standard form of condition is lawful and appropriate.

5. The judicial member also determined that the Tribunal did not err in law in deciding that the area of one of the proposed lots that would include an existing house to be retained on the site should not be excluded from the area in respect of which 10% is required to be given up for public open space.  The Tribunal recognised that the lot that would include the existing house would not give rise to an increase in population.  However, the Tribunal found that the condition fairly and reasonably relates to the creation of the other six lots which will result in six additional houses and therefore that the condition can lawfully be imposed.  Furthermore, the policy provision involves the ceding of 10% of the gross subdivisible area of land, irrespective of whether a house is to be retained on one of the proposed lots, and, in the circumstances of this case, the condition will provide a benefit for the future residents of the existing house in terms of access to increased or improved public open space.

6. As there was no error of law disclosed in the determination of the Tribunal, the application for a review by a judicial member was dismissed and the decision of the Tribunal to impose the condition was affirmed.

Introduction

1. Mr and Mrs Tierney have sought a review by a judicial member, pursuant to s 244 of the Planning and Development Act 2005 (WA) (PD Act), of the determination made by the Tribunal in Tierney and Western Australian Planning Commission [2011] WASAT 153 (reasons) in which the Tribunal affirmed the decision of the Western Australian Planning Commission (Commission) to impose a condition of subdivision approval of Lot 51 Wanaping Road, Kenwick (site) requiring that 10% of the area of the site is to be ceded for public open space. The approved subdivision involves the creation of seven survey strata lots out of a single parent lot. Mr and Mrs Tierney propose to retain an existing dwelling on the site within proposed Lot 1.

2. Mr and Mrs Tierney had originally sought review by the Tribunal, pursuant to s 251(3) of the PD Act, in relation to four conditions of subdivision approval. Following mediation in the Tribunal, the Commission reconsidered its decision, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and varied three of the disputed conditions in a manner acceptable to Mr and Mrs Tierney. The outstanding condition in dispute, namely condition 7, states as follows:

   An area(s) of land at least 404.7 [square metres] in area, in a position to be agreed with the WAPC, being shown on the Deposit Plan as 'Reserve for Recreation' and vested in the Crown under section 152 of the Planning and Development Act 2005, such land to be ceded free of cost and without any payment of compensation by the Crown.  (Local Government).

3. 404.7 square metres equates to 10% of the total area of the site.  The review application in relation to condition 7 was heard by Member Ms R Moore on 23 August 2011.  On 28 September 2011, the Tribunal published the determination in which it dismissed the application for review and affirmed the Commission's decision to impose condition 7 on the subdivision approval.  The Tribunal concluded, at [46] of the reasons, as follows:

   The Tribunal has determined that the condition requiring the ceding of 404.7 square metres of land for the purpose of public open space is an appropriate planning condition in the circumstances of this case.  The condition has been imposed in accordance with the [Commission's] policy framework which has been developed for legitimate planning purposes.  The condition fairly relates to the subdivision and is reasonable in the particular circumstances of this case.

4. The Tribunal referred to the planning framework in detail at [17] ­ [19] of the reasons.  In particular, the Tribunal referred, at [19(3)], to provisions of Development Control Policy No DC 2.3 ­ Public Open Space In Residential Areas (DC 2.3) which had been published by the Commission.  As the Tribunal noted, cl 3.1.1 of DC 2.3 states that 'the Commission's normal requirement in residential areas is that, where practicable, 10 per cent of the gross subdivisible area be given up free of cost by the subdivider and vested in the Crown' for public open space.  Clause 3.1.2 of DC 2.3 states:

   The 10 per cent requirement is derived from the recommendations contained in the Stephenson ­ Hepburn Plan.  That report states that for most areas a standard of 3.36 hectares per 1,000 population (excluding school playing fields) is recommended as sufficient for public open space.

   On the basis of a uniform density of 30 persons per hectare, a standard contribution of 10 per cent of the gross residential area for public open space has been applied since 1956.  This requirement remains valid, as gross residential densities have remained much the same since that time, with smaller lot sizes being offset by declining household occupancies.

5. At [21] ­ [44] of the reasons, the Tribunal considered a number of arguments presented by Mr Ian McKellar, Mr and Mrs Tierney's agent, as to why condition 7 should not be imposed or should be modified.  Having addressed these arguments, the Tribunal found, at [45], that it:

   … is not satisfied in this case that there is a cogent reason to depart from the [Commission's] policy that 10% of the gross subdivisible area is to be ceded free of cost as public open space.

6. On 27 October 2011, Mr and Mrs Tierney commenced this proceeding for a review by a judicial member of the determination of the Tribunal on ten somewhat overlapping grounds, some with several sub­grounds.

7. Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the SAT Act. Member Moore is not a legally qualified member. However, for reasons which follow, there is no error of law disclosed in the determination.

Consideration of application for a review

Ground 1 ­ 'The Tribunal erred in law by applying a test of the adequacy of existing recreation land in the suburb of Kenwick when the true test is of the adequacy of existing open space (in all its forms) that is local to the subdivision itself.'

1. Ground 1 is, in substance, a challenge to a finding of fact by the Tribunal, namely that there is 'a shortfall of public open space in the locality' (at [37] of the reasons), and does not involve a question of law. It was within the discretion of the member to characterise the relevant locality and to determine what existing open space was relevant to the determination. Ground 1 is, therefore, not amenable to review under s 244 of the PD Act.

2. Furthermore, Mr and Mrs Tierney's submissions reveal that Ground 1 is based on a misconception as to the Tribunal's function in the review application.  As this misconception underlies a number of grounds, it is appropriate to address it at this point.  Mr and Mrs Tierney stated in their submissions in relation to Ground 1 that:

   The Tribunal failed to determine what was the proper 'locality' for the purposes of Section 154(2) of the [PD Act] and gave no reasons why the suburb of Kenwick was or could be the 'locality'.

3. In order to understand the role of s 154 of the PD Act, to which Mr and Mrs Tierney referred in their submissions, it is first necessary to refer to s 153 of the PD Act. Section 153 of the PD Act states as follows:

   (1)If the Commission has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown for parks, recreation grounds or open spaces generally and ­ 

   (a)the Commission, after consultation with the local government in whose district the portion is situated, so requires; or

   (b)the Commission, the local government in whose district the portion is situated and the owner of the land so agree,

   the owner of that land is to, in lieu of setting aside the portion, pay to that local government a sum that represents the value of the portion.

   (2)The Commission is not to impose a requirement referred to in subsection (1)(a) in respect of a plan of subdivision that creates less than 3 lots.

4. Section 154 of the PD Act then prescribes the manner in which money received by a local government as cash in lieu of setting aside land for public open space under s 153 is to be dealt with and, in particular, applied. Section 154 of the PD Act states as follows:

   (1)All money received by a local government under section 153 is to be paid into a separate account of the trust fund of the local government established under section 6.9 of the Local Government Act 1995.

   (2)The money is to be applied ­ 

   (a)for the purchase of land by the local government for parks, recreation grounds or open spaces generally, in the locality in which the land included in the plan of subdivision referred to in section 153 is situated; or

   (b)in repaying any loans raised by the local government for the purchase of any such land; or

   (c)with the approval of the Minister, for the improvement or development as parks, recreation grounds or open spaces generally of any land in that locality vested in or administered by the local government for any of those purposes; or

   (d)with the approval of the Commission, in reimbursing an owner (the first owner) of land included in a joint subdivision agreement for land that has been set aside and vested for parks, recreation grounds or open space where ­ 

   (i)the first owner set aside a greater proportion of land than another owner (the second owner); and

   (ii)as a consequence, the local government and the Commission approved of the second owner paying to the local government a sum in lieu of land being set aside for that purpose and that sum, or the relevant proportion of that sum, being reimbursed to the first owner for the excess proportion of land set aside by the first owner.

   (3)If interest is earned from the investment of moneys held under subsection (1), that money is to be applied for a purpose set out in subsection (2).

5. In the hearing before Member Moore, Mr McKellar argued that condition 7 is 'vague and ambulatory and is thus void' (see [21] of the reasons). At [22] of the reasons, Member Moore recorded that, 'in response to this contention', a town planner called on behalf of the Commission gave evidence that the condition identifies the amount of area required to be provided and the Commission has imposed an advice note on the subdivision approval indicating the Commission's approval of a cash in lieu contribution in accordance with s 153 of the PD Act. The member referred to the town planning witness' opinion that:

   The condition was not vague or uncertain because in this case the [Commission] would not accept an area of land to be provided for public open space as it would be too small to be of benefit to the community.  (At [22] of the reasons).

6. The Tribunal rejected Mr McKellar's argument at [23] of the reasons as follows:

   Given the position of the parties in relation to the limitation of the size of the public open space and the agreement that a cash­in­lieu contribution will be required by the [Commission], the Tribunal is of the view that condition 7 is neither vague nor uncertain as it quantifies the land area required and this will consequently inform the cash­in­lieu contribution to be made in accordance with s 153 of the PD Act.

7. This reasoning is sound. However, in order for the Tribunal to have rejected Mr McKellar's argument that condition 7 is vague and ambulatory, it was not necessary for the Commission to have determined under s 153 of the PD Act that Mr and Mrs Tierney may pay cash in lieu of setting aside the area required to be ceded under condition or for there to have been an agreement that the Commission will require cash in lieu.

8. Condition 7 is a standard form of condition imposed by the Commission on a subdivision approval and reflects a policy that has been applied in this State for the past 65 years in subdivision assessment.  Condition 7 is an appropriate form of condition, and is not vague or uncertain, in a case in which the consent authority decides that 'the 10 per cent requirement' in cl 3.1.1 of DC 2.3 should not be departed from.  As the Tribunal said in Phil Lukin Pty Ltd and Lowe Pty Ltd and Shire of Busselton [2006] WASAT 124 at [85]:

   …  The Tribunal accepts that incidental aspects of a development may properly be the subject of a condition which requires the preparation of a plan, detail or specification for approval by the original decision­maker and implementation of the approved plan, detail or specification.  A condition cannot lawfully defer, for later consideration, a non-incidental aspect of a development and cannot "leave open the possibility that development carried out in accordance with the consent and condition will be significantly different from the development for which the application was made" (Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737 per Priestley JA; see Randall and Town of Vincent [2005] WASAT 147 at [14] ­ [22]). The determination of whether an aspect of a development is incidental is one of fact and degree in the circumstances of each case. For example, in this case, dust mitigation and landscaping are incidental aspects of the proposed development. However, in the case of a concrete batching plant, dust is likely to be a central aspect, and in certain cases, landscaping might well be a central aspect of the development in relation to which the consent authority needs to be satisfied at the time it grants development approval.

9. Condition 7 specifies the size of the area of land that is required to be set aside and vested in the Crown for public open space.  While the condition does not identify the location of the area to be vested, and requires that the location is to be agreed between the owner and the Commission, the location of the area of public open space is usually an incidental aspect of a subdivision, and is an incidental aspect of the subdivision in this case.  The identification of the area can, therefore, lawfully and appropriately be the subject of future agreement between the owner and the Commission.  The condition is not vague or uncertain.

10. Furthermore, in many subdivisions, including the subdivision that was before the Tribunal, the size or location of the land make it inappropriate for the owner to, in fact, cede 10% of the gross subdivisible area as public open space. It is for this reason that s 153 of the PD Act (and, prior to the commencement of the PD Act, s 20C of the Town Planning and Development Act1928 (WA) (TPD Act)) enables the Commission to require or agree to the payment of cash in lieu of the actual ceding of land for public open space. In cases where the consent authority decides that 'the 10 per cent requirement' should not be departed from, but the size or location of the land make it inappropriate for the owner to, in fact, cede part of the land as open space, the imposition of a standard condition in the form of condition 7 is appropriate and necessary in order to facilitate a cash in lieu payment under s 153 of the PD Act. However, it is not necessary for the Commission to have already determined or agreed to the payment of cash in lieu or for there to have been an agreement that the Commission will require cash in lieu, in order for the standard condition requiring the vesting of a specified area for public open space to be imposed.

1. Furthermore, in conducting the review in relation to condition 7, whether or not the Commission had imposed an advice note indicating its approval of a cash in lieu contribution under s 153 of the PD Act or the parties had agreed that this would be required, the Tribunal had no power or function in relation to either s 153 or s 154 of the PD Act.

2. Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 (Empire Securities) involved an application for review in relation to three conditions of subdivision approval, including a condition requiring that a proposed public open space reserve shown on the plan of subdivision (approximately 6% of the site area) was to be vested in the Crown as public open space under s 20 of the TPD Act and a condition that:

   … the balance of 10% of public open space not provided as part of [the open space reserve shown on the plan of subdivision], being provided in a position to be agreed between the subdivider and the Local Government … and vested in the Crown under section 20A of the TPD Act.

3. As the Tribunal observed in Empire Securities at [13], the latter condition 'in effect requires the applicants to agree with the Council on the position within the site of an additional 4% of the site area to be provided as public open space, in addition to the 6% shown on the proposed plan of subdivision'. As the Tribunal also noted at [13]:

   By 'advice note' 3, the respondent advised the applicants that it approved a cash in lieu contribution in relation to the additional 4% public open space in accordance with section 20C of the TPD Act.

4. At [48] ­ [54] of the decision in Empire Securities, the Tribunal observed and held as follows:

   48As noted earlier in these reasons, the respondent included an "advice note" at the conclusion of the conditions which it imposed on the subdivision in relation to a cash­in­lieu contribution.  The advice note was in the following terms:

   In respect of Condition 6 of this approval, the Commission hereby approves of a cash­in­lieu contribution in accordance with section 20C of the Town Planning and Development Act 1928.

   49The respondent no doubt included such an "advice note" at the conclusion of the conditions which it imposed on the basis that cl 4.3.4 of DC2.3 states that:

   In cases where the Commission considers that it may be appropriate to use these provisions, the applicant will be so advised in a footnote to the Commission's letter of approval.

   50The parties approached the hearing of these proceedings on the basis that the "advice note" was in some way before the Tribunal for consideration.  Thus, as noted above, the applicant put forward an alternative condition so as to avoid payment of monies to the Council which might be used to purchase or, with the Minister's approval, upgrade public open space outside the site.

   51Section 20C(1) of the TPD Act provides as follows:

   Where the Commission has approved a subdivision of land upon condition that portion thereof be set aside and vested in the Crown for parks, recreation grounds or open spaces generally, if the local government in whose district the portion is situated and the Commission approves, the owner of the land may, in lieu thereof, pay to the local government a sum that represents the value of the portion.

   52Section 17 of the State Administrative Tribunal Act 2004 ("the Tribunal Act") provides, in part, as follows:

   17.      What comes within review jurisdiction

   (1)If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. …

   (3)Where subsection (1) … applies the decision is a "reviewable decision" for the purposes of this Act.

   53Section 29(1) of the Tribunal Act provides as follows:

   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.

   54In my opinion, the decision of the respondent to approve a cash­in­lieu payment under s 20C of the TPD Act did not involve the exercise of a discretion by the respondent "in making the reviewable decision", within the meaning of those words in s 29(1) of the Tribunal Act. The "reviewable decision" in the present case was the decision of the respondent to require the applicant to comply with certain conditions the respondent thought fit to impose before approving the plan of subdivision: TPD Act s 24(3). It is apparent from the terms of s 20C of the TPD Act that the respondent's discretion to approve a cash­in­lieu payment only arose where it "has approved a plan of subdivision of land upon condition that portion thereof be set aside and vested in the Crown". In other words, the respondent's discretion under s 20C of the TPD Act to approve a cash­in­lieu payment only arose after, and in consequence of, the exercise of its discretion under s 24(3) of the TPD Act to require the applicant to comply with conditions before approving the plan. As the discretion to approve a cash­in­lieu payment was not exercisable by the respondent "in making the reviewable decision", the Tribunal does not have power to exercise that discretion in its review of the relevant "reviewable decision" under s 29(1) of the Tribunal Act. Moreover, as neither s 26 of the TPD Act nor any other provision of an enabling Act gives the Tribunal jurisdiction to review the respondent's decision to approve a cash­in­lieu payment, that decision is not a "reviewable decision" amenable to the Tribunal's review jurisdiction.

5. While there are differences between s 153 of the PD Act and s 20C of the TPD Act, their terms, for the purposes of the analysis at [54] of the decision in Empire Securities, are relevantly identical. In particular, under s 153 of the PD Act, the Commission's discretion to require or agree to a cash in lieu payment only arises where it 'has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown …'. In the review application determined by Member Moore, the Tribunal had no power or function in relation to the payment of cash in lieu of setting aside land for open space. The decision of the Commission to approve a cash in lieu payment under s 153 of the PD Act did not involve the exercise of a discretion by the Commission 'in making the reviewable decision' which was the subject of the review proceeding, within the meaning of those words in s 29(1) of the SAT Act. Moreover, there is no provision of an enabling Act which gives the Tribunal jurisdiction to review the Commission's decision to approve a cash in lieu payment.

6. Furthermore, it was not part of the Tribunal's power or function in the review proceeding heard by Member Moore to determine 'what was the proper "locality" for the purposes of s 154(2) of the [PD Act]'. It was certainly part of the Tribunal's power and function to characterise the relevant locality of the site for the purpose of determining whether there is any cogent reason to depart from the application of the '10 per cent requirement' referred to in cl 3.1.2 of DC 2.3. It is clear from [37] of the reasons that the Tribunal characterised the 'locality' for that purpose as the suburb of Kenwick. This was a finding of fact that was reasonably based, given that the local government had, as recently as December 2010, prepared and adopted a local open space strategy that involved an analysis of both current local open space and proposed additional and improved local open space, by suburb. In particular, the strategy stated that Kenwick 'does not meet the 10 per cent DC 2.3 requirement with only 5.79 per cent provided'. The strategy contemplates increasing the number of parcels of local open space land in Kenwick from 21 to 26 parcels, and improving a number of existing parcels, over the 30 year period of the strategy.

7. Finally, it is apparent from [25] ­ [26] of the reasons that the Tribunal took into consideration other areas of open space identified by Mr McKellar.  The largest area identified is a 'Bush Forever' site which is obviously not of the same character as, or a substitute for, public open space of the nature required by condition 7.

8. The Tribunal's determination of the 'locality' for the purpose of determining whether condition 7 is a lawful and appropriate condition of subdivision approval was reasonably open and is not amenable to review.

Ground 2 ­ 'Upon making a finding of fact that the [Commission] required cash as a contribution to open space rather than land, the Tribunal then erred in law in that the Tribunal failed to determine:

a.whether there was, in law, a need for cash to buy open space land in the locality;

b.a reasonable quantum of cash (if any).'

1. This ground is misconceived.  As discussed earlier, the Tribunal had no power or function in relation to cash in lieu.  The Tribunal was not required, as a matter of law, to determine whether there was a need for cash to buy open space in the locality.  Rather, the Tribunal's function was to determine whether a condition requiring that 10% of the site is to be ceded free of cost for public open space is lawful and, if so, reasonable and appropriate.  The Tribunal found at [37] of the reasons that the proposed subdivision of the site 'into seven survey strata lots will give rise to six additional dwellings and a subsequent increase in demand for public open space in the area' and that 'the evidence before the Tribunal indicates a shortfall of public open space in the locality'.  Indeed, the evidence indicated a significant shortfall of public open space in comparison to the 10% contemplated by DC 2.3.  These findings were sufficient to determine that condition 7 is lawful, and reasonable and appropriate, in the circumstances of the case.

2. The Tribunal referred, at [37] of the reasons, to Mr McKellar's argument that the local government 'has unspent funds and no expenditure plans in the next [implementation plan of the open space strategy] implementation period'. Mr McKellar's argument was not irrelevant in relation the review of condition 7. However, Member Moore's rejection of Mr McKellar's argument as 'not justify[ing] the position of the applicant that it should not be required to contribute to the provision of public open space in the locality' (at [37]) was within the Tribunal's discretion and reasonably open as a finding of fact. As Member Moore said at [37] of the reasons, the practical result of the imposition of the condition is that 'there will exist a fund of money to be used for the provision of suitable open space in accordance with the objectives of the [local government's local open space strategy] and future [implementation strategies]'. Moreover, s 154 of the PD Act sets out the manner in which money received by a local government in lieu of the ceding of land for public open space is to be applied.

3. Furthermore, the Tribunal was not required, as a matter of law, to determine 'a reasonable quantum of cash (if any)'. Indeed, the Tribunal had no power to do so. Section 155 of the PD Act concerns how the value of land is to be determined for the purposes of s 153 of the PD Act.

Ground 3 ­ 'The Tribunal had regard to the adequacy of recreation land in the suburb of Kenwick (not open space in all its forms) and in doing so the Tribunal erred in law by failing to have due and proper regard to the position in law that:

a.the respondent has no power to stipulate (by way of it's [sic] Policy DC 2.3) to the Local Government the particular class of open space it acquires with cash­in­lieu funds;

b.the Respondent's Policy DC 2.3 cannot control the use by the Local Government of cash­in­lieu funds and, to that extent, Policy DC 2.3 could be given no weight at all; and

c.that land of a particular class, (namely open space suitable for recreation purposes only) was not guaranteed by the taking of cash by the Applicant by the Local Government.'

1. For reasons given in relation to earlier grounds, this ground challenges a finding of fact and is misconceived.  It does not disclose any error of law.

Ground 4 ­ 'Having heard evidence that the Local Government did not know if the Local Government needed cash to acquire more open space land in the suburb of Kenwick and having made a finding of fact that the Local Government had no plans at all to expend cash for open space, the Tribunal then erred in law by failing to find that, under the provisions of Section 154(2) of the [PD Act], a lack of need for cash and lack of plans to spend such cash was fatal to a lawful taking of a cash contribution under that Section.'

1. For reasons given in relation to earlier grounds, this ground challenges a finding of fact and is misconceived.  It does not disclose any error of law.

Ground 5 ­ 'The Tribunal erred in law in that the Tribunal:

a.took into account two of the tests of validity of Condition 7 (planning purposes and nexus with the subdivision) but failed to take into account the third test of validity of Condition 7 (Wednesbury reasonableness);

b.failed to give any reasons at all in reply to the Applicant's submissions (delivered orally for [sic] the bar table after the evidence of the witnesses had been received) that a manifest lack of evidence before the Tribunal establishing a need for cash to acquire open space in the locality was fatal to a proper determination of the reasonableness of the condition.'

1. In relation to Ground 5a., the Tribunal expressly found, at [46] of the reasons, that condition 7 'is reasonable in the particular circumstances of this case'.  It follows that the Tribunal implicitly found that the condition was not manifestly unreasonable.  Where a consent authority finds that a condition is reasonable, it does not have to expressly find that the condition is not manifestly unreasonable.

2. In relation to Ground 5b., as noted earlier, the Tribunal referred to Mr McKellar's argument that the local government had unspent funds and no expenditure plans in the next implementation plan for the local open space strategy within the locality of the site.  However, as found earlier, it was reasonably open to the Tribunal to find that condition 7 was, nevertheless, reasonable and appropriate in the circumstances of the case.  The subdivision gave rise to six additional dwellings on the site and a consequent demand for public open space in the area.  The evidence showed that there was a shortfall in public open space in the locality.

Ground 6 ­ 'The Tribunal erred in law in that it did not give any reasons at all why the Tribunal would find a period of six years to be acceptable before a plan by the Local Government to spend cash­in­lieu was going to crystallise.'

1. The Tribunal did not find that 'a period of six years [is acceptable] before a plan by the Local Government to spend cash­in­lieu was going to crystallise', nor was it reasonably required to.  The Tribunal recognised, at [37] of the reasons, that the next implementation plan for the local open space strategy, which is intended to operate until 2016 ­ 2017, does not include any expenditure plans in the Kenwick locality.  The implementation plan to 2016 ­ 2017 is the first six year implementation plan in an overall local open space strategy of 30 years which includes both increasing the number of parcels of land of open space and upgrading existing parcels in the Kenwick locality.

2. The Tribunal was required by s 77 of the SAT Act to give reasons for its 'findings on material questions of fact, referring to the evidence or other material on which those findings are based'. The findings on material questions of fact in this case were that the subdivision would give rise to additional dwellings, and a subsequent increase in demand for public open space in the area, and that there is a shortfall of public open space in the locality. The Tribunal gave reasons which referred to the evidence or other material on which those findings were based.

3. Because of the way in which Mr and Mrs Tierney argued their case, there was also a material question in relation to whether proposed Lot 1, which would contain the existing dwelling on the site, should be excluded from the calculation of public open space.  The Tribunal gave findings in relation to this question, referring to the evidence and other material on which those findings are based, at [39] ­ [44] of the reasons.

4. The Tribunal did not err in law in failing to provide reasons for the determination.

Ground 7 ­ 'In respect of the existing house lot, the Tribunal erred in law in that:

a.the subdivision was, in law, a six lot subdivision, not a seven lot subdivision;

b.if the existing house lot was approved for development without a condition requiring a contribution to open space, the Tribunal is powerless to treat such absence as a cause to impose an open space contribution condition 'after the fact' of the development;

c.because under the provisions of the Local Government TPS 6 the R­Codes control development only, not subdivision, is not mandatory in law at all that the lot sizes comply with the R­Code lot size average;

d.the Tribunal failed to determine the reasonable quantum of private open space necessary to be retained for the existing house lot and, in that aspect, failed to:

i.have any regard at all to Table 1 State Planning Policy 3.1 Residential Design Codes ('SPP 3.1 Codes');

ii.have any regard at all to the quantum of private open space in the existing house lot in accordance with the (SPP 3.1 Codes);

e.failing to give adequate reasons why a 'voluntary' loss to the Applicant of (an excess of) the Applicant's own private open space gives rise to a need for the Applicant to provide open space to the public generally.'

1. In relation to Ground 7a., the characterisation by the Tribunal of the proposed subdivision as a 'seven lot subdivision' was not a determination 'in law', but rather a finding of fact.  Moreover, the characterisation of the subdivision as a 'seven lot subdivision' was reasonably open, and, indeed, correct.  It is conventional in planning to refer to a subdivision of an existing lot (even one including an existing residence) into two lots as a 'two lot subdivision'.  Similarly, a subdivision of an existing lot (whether including an existing house to be retained or not) into seven lots is a 'seven lot subdivision'.  It is clear from [37] of the reasons that the Tribunal appreciated the fact that, because the existing house on the site is to be retained within one of the proposed lots, 'the subdivision of the subject land into seven survey strata lots will give rise to six additional dwellings', not seven additional dwellings.

2. In his submissions, Mr McKellar referred to s 146(3) of the PD Act in support of Ground 7a. However, s 146(3) of the PD Act, which states that 'a plan containing one lot only is deemed a diagram or plan of survey of a subdivision' (in certain circumstances), is of no assistance to Mr McKellar's argument. The fact that that a plan containing one lot is deemed to be a diagram or plan of survey does not mean that a subdivision of a single lot into seven lots is anything other than a 'seven lot subdivision',

3. Finally, nothing in the review application turned on whether the proposed subdivision was characterised as a 'six lot subdivision' or as a 'seven lot subdivision'.  On either characterisation, the policy framework contemplated the imposition of condition 7, unless there was a cogent reason, in the circumstances of the particular case, not to impose the condition or to vary it.  In particular, a 'six lot subdivision' was not below any relevant threshold for the purpose of imposing a public open space requirement.  Furthermore, as noted earlier, under cl 3.1.1 of DC 2.3, 'the Commission's normal requirement in residential areas is that, where practicable, 10 per cent of the gross subdivisible area be given up free of cost by the subdivider and vested in the Crown' for public open space.  The policy is to cede 10% of 'the gross subdivisible area' of a subdivision, whether or not there is an existing house on the land which is proposed to be retained within one of the proposed lots.  Moreover, in the circumstances of this case, condition 7 will provide a benefit for future residents of the existing house in terms of access to increased or improved public open space.

1. In relation to Ground 7b., Mr McKellar argued, firstly, that as the existing house 'could already be occupied by a population [it] did not, as a matter of law, give rise to any change bringing about a need to impose a condition which has population growth arising form the subdivision as its genesis'.  However, the Tribunal was well aware that the proposed seven lot subdivision would result in six new dwellings, not seven.  The Tribunal found, at [37] of the reasons, that the six additional dwellings would give rise to an increase in demand for public open space in the area.  The Tribunal did not find that the lot that would comprise the existing house would increase demand for public open space in the area.  However, as noted earlier, cl 3.1.1 of DC 2.3 states that '10 per cent of the gross subdivisible area' is to be ceded which, in the present case, includes the area of the proposed lot that would contain the existing house, and the residents of the existing house will benefit from the condition.

2. Mr McKellar argued, secondly, that the Tribunal erred 'by having regard to the erroneous evidence of [Mr] Gordon that the lot which contained the existing house had never previously contributed to open space' and that 'the Tribunal is actually powerless to treat such absence as a cause to impose an open space contribution condition "after the fact" of that development'.  The first aspect of this argument involves a challenge to a finding of fact.  It was open to the Tribunal to find, as it did at [43] of the reasons, that 'it has not been demonstrated that public open space has already been given up in an earlier subdivision'.  As to the second aspect of the argument, the Tribunal did not treat the absence of any earlier provision of land for public open space in respect of the site as 'a cause to impose an open space contribution condition'.  Mr McKellar's argument in relation to the ability to impose an open space contribution condition 'after the fact' of a development, which was developed in his submissions in reply, is misconceived.  Mr McKellar argued in his reply that where a development of a house has been approved without requiring a public open space contribution, a public open space requirement cannot subsequently be imposed upon the subdivision of the land.  However, it is not conventional in Western Australia to impose a requirement for the dedication of land for public open space when a house is approved.  Rather, it is conventional to impose a public open space requirement at subdivision stage, whether that occurs before or after approval of a house on the land.  Certainly, if a requirement has been imposed and was complied with for the dedication of land for public open space at an earlier stage of the planning process, that is likely to be material in deciding whether to impose, and if so to what extent, a similar condition at a later stage of the planning process.  However, the Tribunal found that that was not the case in relation to the review application.

3. In relation to Ground 7c., Mr McKellar argued that the Tribunal made a finding, at [41] of the reasons, that 'the Codes require 571 square metres' as an average site area, where land is coded R17.5 under Residential Design Codes of Western Australia (2010) (Codes), for subdivision purposes, and that this finding was 'incorrect at law'.  Mr McKellar relied, in support of this submission, on Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 (Landpark).  In Landpark, the Tribunal determined, at [26], that:

   The Codes contemplate that the Commission and the Tribunal on review may approve a subdivision which involves allotments that are smaller than the minimum site area that corresponds to the residential density code that applies to the land for development purposes.

4. However, Member Moore did not determine that the average site area referred to in Table 1 of the Codes for development purposes is mandatory in relation to a proposed subdivision.  At [41] of the reasons, the Tribunal was referring to the evidence of Mr Gordon, a town planner called by the Commission, who considered that 'the lot containing the existing dwelling should not be excluded [from the area to which the 10% requirement is to be applied under the condition] as there was no evidence that there had been any previous open space contributions made and that the demand generated by the residents of that lot has not been satisfied in any other form'.  The Tribunal noted that Mr Gordon 'also stated that the proposed subdivision includes the existing lot and is required in order to meet the average site area per dwelling for R17.5 under the Codes'.  In that context, the Tribunal noted its 'understand[ing] that without Lot 1, the average site area is 518.3 square metres and the Codes require 571 square meters, which results in a 9.1% shortfall'.

5. It was open to the Tribunal to accept Mr Gordon's evidence (as it did at [44]) and, in doing so, the Tribunal did not fall into legal error.  As the Tribunal said in Landpark at [28], although a subdivision which involves allotments that are smaller than the minimum site area that corresponds to the residential density code applying to the land for development purposes is capable of approval:

   As a matter of orderly and proper planning, as well as by the terms of s 138(2) of the PD Act, in the exercise of planning discretion, the Commission and the Tribunal on review must give due weight to [the provision of the local planning scheme requiring that 'the use or development of land for any of the residential purposes dealt with by the Codes shall conform to the provisions of those Codes'] and to its obvious expectation that generally development of a single house on land coded R2.5 under the Scheme requires a minimum site area of 4,000 square metres and a minimum frontage of 40 metres and that the Commission will not, therefore, generally approve an allotment of a lesser size or frontage.

6. Mr Gordon's evidence that the proposed lot that would contain the existing house should be included in the calculation of the area from which 10% is to be allocated as public open space, for reasons including that the proposed subdivision would otherwise not meet the average site area per dwelling for the R17.5 Code, was soundly based.  The Commission and the Tribunal on review would not generally approve a subdivision in the R17.5 Code with an average site area of less than 571 square metres.

7. In relation to Ground 7d. and Ground 7e., there was no requirement on the part of the Tribunal 'to determine the reasonable quantum of private open space necessary to be retained for the existing house lot'.  Nor was the Tribunal required to give reasons 'why a (voluntary) loss to the Applicant of (an excess of) the Applicant's own private open space gives rise to a need for the Applicant to provide open space to the public generally'.  For reasons set out earlier, the calculation of the area required to be ceded for public open space under cl 3.1.1 of DC 2.3 included the whole of the gross subdivisible area, including the proposed lot that would include the existing house.  Furthermore, the ceding of land for public open space in respect of the area of the lot that would contain the existing house does not involve a provision of 'open space to the public generally', but rather involves the provision of public open space for the benefit of future residents of the site.  Moreover, although the Tribunal was aware that one of the proposed seven lots would not provide a nexus for the imposition of condition 7, because the house could be presently occupied and would be occupied following the subdivision, nevertheless, the imposition of condition 7 would benefit not only the residents of the other six lots, but also the residents of the lot containing the existing house.  As noted earlier, the evidence indicated that there is a deficiency in the availability of public open space in the Kenwick locality, in comparison to the contemplation of 10% of the area in cl 3.1.1 of DC 2.3.  At present, only 5.79% of the area comprises public open space.  While Lot 1 does not provide a nexus for the imposition of condition 7, the condition will provide a benefit for the future residents of the existing house on Lot 1, because they will obtain more access to increased or improved public open space in the locality.

Ground 8 ­ 'The Tribunal erred in law by having regard to irrelevant facts namely a shortfall of recreation land in the suburb of Kenwick which shortfall predated the fact of the Applicant's subdivision and thus has no nexus with the Applicant's subdivision at all.'

1. Mr McKellar submitted that:

   The Tribunal erred in law by imposing a condition upon the applicant to cure a pre­existing problem in a suburban area which pre­existing problem did not arise at all from the fact of subdivision.

2. In support of this submission, Mr McKellar relied on the decision of the former Town Planning Appeal Tribunal in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 (Perrymead) in which the Tribunal said at 186 as follows:

   A condition cannot arise solely from the existence of a public need which bears no relationship to the subdivision.  The requirement that a condition reasonably relates to the subdivision does not, therefore, allow the Commission or the local authority to use the subdivision or development as a trigger for a future need that does not arise, in part, from the project.  There is no justification for the use of conditions to promote the community infrastructure simply because the developer has come forward for approval.

3. However, in this case, as the Tribunal found at [37] of the reasons, condition 7 fairly and reasonably relates to the proposed subdivision because 'the subdivision of the subject land into seven survey strata lots will give rise to six addition dwellings and a subsequent increase in demand for public open space in the area'.  The Tribunal did not impose condition 7 to 'cure a pre­existing problem'.  Rather, the nexus between the condition and the subdivision was that the subdivision would result in a significant increase in the residential population of the site, which necessitates the provision of public open space.

4. However, the reference to the shortfall of public open space in the locality was relevant to the determination as to whether condition 7 should be imposed in the exercise of planning discretion.  The fact that only 5.79% of the Kenwick locality comprises public open space strongly supports the imposition of a condition on subdivision requiring (at least) 10% of the gross subdivisible area to be ceded as public open space.

Ground 9 ­ 'Alternatively, if the existing quantum of recreation land in Kenwick (found by the Tribunal to be 5.79%) was relevant, the Tribunal erred in law by failing in its duty to act equitably and in good conscience pursuant to Section 32(2) of the State Administrative Tribunal Act in that the Respondent's policy was to secure 10% in total, it would be unreasonable, inequitable and unconscionable to require the Applicant to contribute anymore than 4.21% to open space.'

1. This ground involves a challenge to a finding of fact, and is not upon a matter involving a question of law.  In any case, the argument upon which this ground is premised is illogical.  The fact that only 5.79% of the Kenwick locality comprises public open space suggests that, if anything, more than 10%, rather than less, should be required for public open space in relation to new subdivisions, as otherwise residents of the subdivision will not have access to 'sufficient' open space within the contemplation of cl 3.1.2 of DC 2.3.  To require only 4.21% of the site as public open space would compound the historic shortfall of public open space in the locality.

Ground 10 ­ 'The Tribunal erred in law by, in making Order 2, affirming a decision of the Respondent which the Respondent has already set aside and substituted with another decision pursuant to a Section 31 Order.'

1. Order 2 made by the Tribunal on 28 September 2011 states as follows:

   The decision of the respondent dated 28 September 2011 to grant conditional approval for the subdivision of Lot 51 Wanaping Road, Kenwick is affirmed and condition 7 imposed by the respondent is confirmed.

2. As Mr McKellar submitted, Order 2 is erroneous in two respects.  First, the Commission's decision to grant subdivision approval was made on 28 September 2010, not on 28 September 2011.  Second, the decision the subject of the review was not the decision to grant conditional approval for the subdivision, but rather the decision to impose condition 7.  In order to give effect to the Tribunal's determination, Order 2 should have read:

   The decision of the respondent made on 28 September 2010, and affirmed by the respondent pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) on 16 June 2011, to impose condition 7 on the survey strata subdivision approval of Lot 51 Wanaping Road, Kenwick, is affirmed.

3. However, the errors in Order 2 obviously arose from an accidental slip or omission and can, therefore, be corrected by the Tribunal pursuant to s 83(1)(b) of the SAT Act. Section 83(2)(b) provides that the correction of an error arising from an accidental slip or omission in a decision may be made on the Tribunal's own initiative. Member Moore should issue a corrected set of reasons and a corrected order pursuant to s 83 of the SAT Act.

Conclusion

1. As the Tribunal's determination was not affected by any error of law, the application for a review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.  The member should correct the errors arising from an accidental slip or omission in Order 2 in the terms set out above.

Orders

1. For these reasons I make the following orders:

   1.The application for a review by a judicial member is dismissed.

   2.The determination of the Tribunal in Tierney and Western Australian Planning Commission [2011] WASAT 153 affirming the decision of the respondent to impose condition 7 on the grant of subdivision approval of Lot 51 Wanaping Road, Kenwick is affirmed.

I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE D R PARRY, DEPUTY PRESIDENT