| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TIERNEY and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 153 MEMBER : MS R MOORE (MEMBER) HEARD : 23 AUGUST 2011 DELIVERED : 28 SEPTEMBER 2011 FILE NO/S : DR 113 of 2011 BETWEEN : GARY TIERNEY CHERYL TIERNEY
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Town planning Subdivision of lot into seven survey strata lots Condition of subdivision approval Condition requiring public open space contribution Second Newbury test Whether condition fairly and reasonably relates to the development Extent of public open space in the locality Whether existing dwelling gives rise to need for public open space contribution Whether amount of public open space contribution should be 10% or less
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Legislation: City of Gosnells Town Planning Scheme No 6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 152, s 153, s 153(2), s 251(3)
Residential Design Codes of Western Australia (2010)
State Administrative Tribunal Act 2004 (WA), s 31 Result: Application for review dismissed
Subdivision approval condition 7 affirmed Category: B
Representation: Counsel:
Applicants : Mr I McKellar
Respondent : Ms B Allen with Mr D Jones
Solicitors:
Applicants : Civil Technology (Civil Engineers, Project Managers)
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Hill v State Planning Commission (1994) 10 SR (WA) 354
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This matter involved an application for review of four conditions of subdivision approval for Lot 51 Wanaping Road, Kenwick. The matter was referred to mediation and, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), the respondent reconsidered its decision and varied three of the disputed conditions. The matter proceeded to a final hearing with only one condition in dispute, condition 7. 2 Condition 7 required 404.7 square metres of land (10% of the gross subdividable area) be ceded free of cost as public open space in accordance with s 152 of the Planning and Development Act 2005 (WA). The respondent approved a cash-in-lieu contribution in accordance with s 153 of the Planning and Development Act. 3 The applicant was of the view that the condition should not be imposed for a number of reasons and, if it was to be imposed, the condition should require a lesser amount than a 10% contribution of public open space. 4 The respondent was of the opinion that the condition in dispute had a proper planning purpose, reasonably related to the proposed subdivision and was reasonable in these particular circumstances. 5 The Tribunal agreed with the respondent and found that the condition was fair and reasonable in the circumstances of the case, and that there was no cogent reason to depart from the respondent’s policy of requiring a contribution of 10% of the gross subdividable land area as public open space. 6 The application for review was therefore dismissed and the decision by the respondent to impose condition 7 on the subdivision approval upheld.
Introduction 7 Gary David Tierney and Cheryl Tierney (applicants) made an application to the Western Australian Planning Commission (respondent or WAPC) on 9 July 2010 for approval to subdivide Lot 51 Wanaping Road, Kenwick (subject land) into seven survey strata lots ranging in size from 483 square metres to 932 square metres (see Attachment 1). (Page 4)
8 On 28 September 2010, the respondent approved the application subject to 15 conditions and nine advice notes. 9 The applicants on 29 October 2010 requested reconsideration by the respondent of condition 7, which relates to the provision of public open space, on the basis that a previous public open space contribution had been made. The respondent, on 9 March 2011, found that there was no evidence that previous ceding of land had occurred and was not prepared to delete condition 7. 10 On 7 April 2011, the applicants made application to the Tribunal pursuant to s 251(3) of the Planning and Development Act 2005 (WA) (PD Act) to have conditions 7, 8, 9 and 10 of the subdivision approval reviewed. 11 These conditions are as follows: 7. 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 Deposited Plan as a '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) 8. Uniform fencing along the boundaries of all of the proposed lots abutting Lot 1265 (abutting Rehoboth school site on Lot 107) and Lot 52 are to be constructed to the satisfaction of the Western Australian Planning Commission. (Local Government) 9. Suitable arrangements being made with the local government for the provision of vehicular crossovers to service the lots shown on the approved plan of subdivision. (Local Government) 10. Arrangements being made with the local government for the upgrading and/or construction of Wanaping Road where it abuts the application area. (Local Government) 12 The matter was referred to mediation and as a result of the mediation and pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the respondent reconsidered conditions 7, 8, 9 and 10 on 16 June 2011. The reconsideration retained condition 7 in its original form and deleted conditions 8, 9 and 10 and replaced them with the following: 8. A restrictive covenant being placed on the lots under the provisions of Section 129BA of the Transfer of Land Act 1893 [WA] (as amended) stating: (Page 5)
A dividing fence shall not be constructed on the boundary of the strata lot unless such dividing fence is constructed in materials and of a colour matching the existing fencing constructed on the dividing fence lines of the parent lot (formerly Lot 51 on Diagram 32514)[.] (Local Government) 9. A restriction being placed on the land comprising [S]trata [L]ot 3 under the provisions of Section 150 of the Planning and Development Act 2005 [WA] prohibiting access to [S]trata Lot 3 from all abutting existing roads save for in the south corner of [S]trata Lot 3 for a length of 7 [metres] from the south corner of that lot. (Local Government) 10. The applicant/owner constructing the gully pit, piped drainage, headwall, kerbing and footpath as described on the drawing numbered 72900100 attached hereto. (Local Government) 13 The matter proceeded to final hearing with the only issue in dispute being condition 7.
Subject land and its context 14 The subject land is a corner lot with frontage to both Wanaping Road and Brixton Street, has a total area of 404.7 square metres and is described as Certificate of Title Volume 1822 Folio 354. There is an existing dwelling, with carport and swimming pool, located on the northern corner of the subject land. 15 The existing dwelling is located on proposed Lot 1 which has an area of 932 square metres and vehicular access off Wanaping Road. The applicant provided photographs (including an aerial view) of this portion of the subject land. The photographs show the section of subject land which currently contains an effluent disposal system for the existing dwelling and the hardstand area used by the applicant for his business as a drainage contractor. These areas are to be proposed Lot 2, with an area of 501 square metres, and Lot 3, with an area of 483 square metres. The dwelling and associated pool and outdoor living areas are currently fenced off from these areas and the balance of the existing lot. The remaining four proposed lots range in size from 508 square metres to 550 square metres and front on to Brixton Street, as illustrated on the attached plan. 16 To the north of the subject land on the opposite side of Wanaping Road is the Brixton Street Reserve (Wetland and Bush Forever). Immediately adjacent to the subject land is the Rehoboth (Page 6)
Christian College school site with playing fields, and, to the west and south, on the opposite side of Brixton Street, is residential development.
Planning framework 17 The subject land is zoned Urban under the Metropolitan Region Scheme and Residential with a density coding of R17.5 under the City of Gosnells Town Planning Scheme No 6 (TPS 6). 18 The proposed subdivision is consistent with the lot size requirements of the R17.5 coding except for Lot 3 which is 483 square metres in lieu of the 500 square metres minimum site area in Table 1 of the Residential Design Codes of Western Australia (2010) (Codes). The City of Gosnells (City) supported the subdivision application based on the 5% variation provisions of the respondent's Development Control Policy DC 2.2 Residential Subdivision (DC 2.2). 19 The respondent has a number of planning instruments that are relevant in the consideration and determination of this matter and include the following documents. 1) Western Australian Planning Commission, Statement of Planning Policy No 1: State Planning Framework Policy (Variation No. 2) (SPP 1).
The purpose of this policy is to inform the respondent, local government and others: … on those aspects of State level planning policy which are to be taken into account, and given effect to, in order to ensure integrated decisionmaking across all spheres of planning. Part B of SPP 1 includes at B5, 'Operational Policies' which are: … largely subdivision and development control policies which have been adopted by the [Western Australian Planning] Commission to guide its decision-making on subdivision and development applications. The 'Operational Policies' listed in B5 relevant to this matter are expanded below.
2) Development Control Policy No DC 2.2 - Residential Subdivision. (Page 7)
This policy sets out the respondent's requirements in respect to the subdivision of land into residential lots. Clause 3.1.2 provides that the respondent is required to consult with and consider any advice from local government when determining applications for subdivision. Clause 3.1.3 provides that all new residential lots shall be:
• Convenient to areas of passive and active open space, provided in accordance with the [Western Australian Planning] Commission's policy on Public Open Space (DC 2.3) in appropriate locations and configurations, having regard for the existing and proposed distribution of open space in the immediate locality.
3) Development Control Policy No DC 2.3 Public Open Space In Residential Areas (DC 2.3).
This policy deals specifically with the provision of a reasonable distribution of public open space in residential areas suitable for both active and passive recreation in each locality. Clause 3.1.1 of DC 2.3 states: The [Western Australian Planning] Commission's normal requirement in residential areas is that, where practicable, 10 per cent of the gross subdividable area be given up free of cost by the subdivider and vested in the Crown under the provisions of Section 20A of the Town Planning and Development Act 1928 [WA] (as amended) as a Reserve for Recreation. In determining the gross subdividable area the Commission deducts any land which is surveyed for schools, major regional roads, public utility sites, municipal use sites, or, at its discretion, any other nonresidential use site. Clause 3.1.2 of DC 2.3 states: The 10 per cent requirement is derived from the recommendations contained in the StephensonHepburn 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.
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Clause 3.1.3 of DC 2.3 states: In terms of the location and distribution of public open space, the [Western Australian Planning] Commission favours an overall balance between incidental open space, readily accessible to all residents, and recreational open space in larger units suitable for active leisure pursuits. In this regard it will seek the advice and comment of the relevant local government. It will also seek local government advice upon the suitability in physical terms of land shown upon plans of proposed subdivision for development as open space. Clause 3.1.5 of DC 2.3 states: The [Western Australian Planning] Commission will not normally require an open space contribution for five lots or less, provided a contribution is not required by a provision of a town planning scheme or approved structure plan, where: • the applicant demonstrates to the satisfaction of the Commission that land has already been given up for open space in an earlier subdivision; or • the proposal is within a locality where the Commission, on the advice of the local government, following an assessment of the locality, has concluded that there is sufficient open space in that locality. Clause 3.1.6 of DC 2.3 states: The [Western Australian Planning] Commission may impose an open space condition where an application would create five lots or less where: • the imposition of the condition would yield an area of land which the Commission and Council agree is adequate and suitable for public open space purposes; or • the local government has identified an existing or potential deficiency of public open space by land acquisition in the locality of the subdivision; or • similar proposals containing five lots or less would be likely to eventuate in the locality. Clause 4.3 of DC 2.3 provides for cash payments in lieu of providing land for open space and cl 4.3.1 specifically states: Sections 20C (1) to 20C (7) of the [Town Planning and Development] Act contain provisions under which a cash payment (Page 9)
Clause 4.3.2 of DC 2.3 states: Taking account of the provisions of 4.3.1 the Commission may impose an open space condition with a footnote seeking the provision of a cash-in-lieu equivalent of the public open space, where; • the local government has requested the condition and identified an existing or potential deficiency of public open space; • the local government has an adopted strategy to provide open space by land acquisition in the locality of the subdivision; and • the otherwise required 10% area of open space would yield an area of unsuitable size/s and dimension/s to be of practicable use. Clause 4.3.5 of DC 2.3 states: (Page 10)
(c) with the approval of the Minister for Planning, for the improvement or development as parks, recreation grounds or open spaces generally or any land in the said locality vested in or administered by the local government for any of those purposes. Clause 4.3.8 of DC 2.3 states: Expenditure of cash-in-lieu funds must be directly related to the use or development of land for public open space purposes. The land must be vested or administered for recreation purposes with unrestricted public access. Land held in fee simple by the local government should, as a pre requisite [sic], be reserved for public recreation in the Council's town planning scheme. Clause 4.3.9 of DC 2.3 provides a list of items on which cashinlieu may be expended and includes: clearing, seating, earthworks, spectator cover, grass planting, toilets, landscaping, change rooms, reticulation, lighting, play equipment, pathways, fencing, walk trails, car parking, and signs relating to recreational pursuits. 4) State Planning Policy 3.6: Development Contributions for Infrastructure (SPP 3.6).
This policy was referred to during the hearing by the applicant's representative, Mr Ian McKellar, in relation to its reference at page 4689 of the Western AustralianGovernment Gazette (20 November 2009) to the scope of development contributions for infrastructure as 'defined in a WAPC policy adopted in 1997' which is set out in Planning Bulletin No. 18 February 1997: Developer Contributions for Infrastructure (PB 18). The Tribunal and Mr Jason Gordon, the planning expert appearing on behalf of the respondent, were directed to 'Schedule 1: Western Australian Planning Commission Developer Contribution Arrangements' of PB 18, in particular to 11.2, which referred to 'Council Cost 100% less any developer contribution' for the development of public open space (as distinct to the provision of land for public open space). Mr Gordon had not reviewed either SPP 3.6 or PB 18 for the purposes of the hearing. Notwithstanding this, it was established during the hearing that page 4690 of the Western AustralianGovernment Gazette (20 November 2009) refers to this policy replacing PB 18, and that Planning Bulletin 100, State Planning
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Policy 3.6, Development Contributions for Infrastructure (PB 100) states that PB 18 is superseded by SPP 3.6. 5) Liveable Neighbourhoods (updated in October 2007).
The respondent referred the Tribunal to 'Liveable Neighbourhoods' and, in particular, Element 4 Public Parkland and Appendix 4 Cash in lieu for public open space: Liveable Neighbourhoods is an operational policy for the design and assessment of structure plans (regional, district and local) and subdivision for new urban (predominantly residential) areas in the metropolitan area and country centres, on greenfield and large urban infill sites. The respondent and the respondent's planning expert, Mr Gordon, were of the view that it provides guidance in the form of objectives and requirements for individual elements which include the provision of public parkland and, more specifically, the contribution of cashinlieu of public open space. During the hearing, Mr McKellar referred Mr Gordon and the Tribunal to Pt 7 of the Western Australian Planning Commission's Form 1A, 'Application for Approval of Freehold or Survey Strata Subdivision' (Form 1A) which contains a paragraph headed 'Information requirements for Liveable Neighbourhoods' and states: Subdivision applications proposing to create 20 or more lots on greenfield and urban infill sites will be assessed against the requirements of Liveable Neighbourhoods. The Tribunal is of the view that the relevance of 'Liveable Neighbourhoods' in this case is minimal as the proposed subdivision is for seven lots, however, it is noted that the principles found in Element 4 and Appendix 4 are consistent with the respondent's development control policies referred to by both parties.
The issue 20 As explained above, condition 7 of the subdivision approval the subject of this review remains in dispute. The main issue for determination in this matter is whether this condition, requiring 404.7 square metres of land to be ceded free of cost for the purposes of (Page 12)
public open space, is a valid planning condition in the circumstances of this case. 21 Mr McKellar, on behalf of the applicants, made a number of contentions in regard to condition 7. Firstly, in his written contentions, Mr McKellar argued that as condition 7 fails to specify a location within the proposed subdivision for the 404.7 square metres of land to be ceded for the purposes of public open space, it is 'vague and ambulatory and is thus void'. Mr McKellar referred the Tribunal to Hill v State Planning Commission (1994) 10 SR (WA) 354. 22 In response to this contention, Mr Gordon gave evidence that the condition identifies the amount of area required to be provided and that there is an advice note indicating the respondent's approval of a cashinlieu contribution in accordance with s 153 of the PD Act. It was Mr Gordon's opinion that the condition was not vague or uncertain because in this case the respondent 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. Mr McKellar did not dispute this and agreed that, in this case, the respondent would require a cash-in-lieu contribution. 23 Given the position of the parties in relation to the limitations of the size of the public open space and the agreement that a cash-in-lieu contribution will be required by the respondent, 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 cash-in-lieu contribution to be made in accordance with s 153 of the PD Act. 24 Secondly, Mr McKellar contended that in this case there is good cause to depart from the respondent's usual policy of requiring 10% of the gross subdividable land area as public open space for a number of reasons, including the lack of need for the open space and, that if provided, the open space would be too small and poorly located to be of benefit to the community. 25 It was his view that existing open space 'very proximate' to the subject land is more than adequate and includes the following: (Page 13)
3) 0.31 hectares of local open space within 273 metres. 26 In regard to the above areas, the respondent contended that the 63.94 hectare land parcel is not regional public open space but a 'Bush Forever' site known as the Brixton Street Wetlands and not suitable for recreation as it is a conservation class wetland. Further, the 1.12 hectare parcel is also a 'Bush Forever' site and conservation category wetland which is enclosed by fencing and not used for recreation purposes. The respondent accepted that adjacent to this is the Brixton Street Reserve with an area of 0.298 hectares which contains high quality infrastructure and has been included in the City's calculations of public open space. The respondent also agreed that the 0.31 hectare land parcel is public open space, known as the 'Alton Street Reserve', and consists of an unirrigated park with a low level of infrastructure and playground equipment. 27 It was the respondent's position that there is a shortfall of public open space in the surrounding area as indicated by the City of Gosnells Local Open Space Strategy (LOSS) prepared and adopted by the City in December 2010. 28 The LOSS was prepared to guide and coordinate decisions relating to the provision, development and management of local open space in the City and analysed 335 separate parcels of local open space, defined in the strategy as 'local parkland that has been set aside for public recreation purposes'. In its assessment of local open space the City established that it has a total land area of 12,725 hectares of which 975 hectares is local open space, equating to 7.66% local open space. 29 Key findings from the assessment for the suburb of Kenwick, where the subject land is located, were as follows: Kenwick • Does not meet the 10% DC 2.3 requirement with only 5.79% provided. • A total of 7.09% of LOS is provided when also considering other Crown land and land owned by the City. • A significant number of the local open spaces in Kenwick have relatively poor amenity value. Large portions of residential areas have no easy access to local or neighbourhood parks. 30 Part 4 of the LOSS contains a table illustrating the current local open space provision by suburb and how this is expected to change once the strategy is fully implemented. It also classifies each parcel according to (Page 14)
differing levels of maintenance and development. According to this table, Kenwick currently has a total of 21 parcels of land and is planned to have a total of 26 parcels in the future, with a number of parcels of local open space to be upgraded. 31 The outcome identified by the strategy is to increase the amount of local open space provided in suburbs where a deficiency has been identified, as well as an increase the number of high quality local open space parcels. The time frame for implementation is expected to be 30 years, in six year intervals. The City of Gosnells Local Open Space Strategy Implementation Plan 20112012 to 20162017 (LOSSIP) is the first of the six year implementation plans and there are no projects planned for the suburb of Kenwick during this period. 32 With regard to his contention that there is no need for more public open space, Mr McKellar also referred to previous cashinlieu contributions from the subdivisions of adjacent lots 103, 104, and 105 Wanaping Road, which have not been expended by the City to date. It was his argument that the amount of existing public open space proximate to the subject land was more than adequate, and that the City had previously received cashinlieu payments from adjacent subdivisions which are currently unspent, and that as the proposed subdivision does not give rise to the need for more open space, there is insufficient need for the condition. The Tribunal was then referred to the case of Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 (Perrymead). 33 Perrymead concerns the review of a condition of subdivision approval requiring the upgrading of an existing unsealed road. The decision refers to 'the threefold test of the validity and scope of a condition' contained in Newbury District Council v Secretary of State for the Environment[1981] AC 578 (Newbury) which in planning law is known as the Newbury test. In Perrymead, the former Town Planning Appeal Tribunal (TPAT) stated: A condition will be valid if: (1) it has a planning purpose; (2) it fairly and reasonably relates to the development; (3) it is not so unreasonable that no reasonable planning authority could have imposed it. (Page 15)
34 With regard to the first Newbury test, it is the Tribunal's view that this condition has a legitimate planning purpose and has been imposed in accordance with the respondent's policy framework as described earlier. 35 Mr McKellar's argument relates to the second Newbury test, and is that 'a proposal must create a need for the infrastructure before a condition requiring that infrastructure can be validly imposed'. TPAT determined in Perrymead, in relation to the second Newbury test, the following: The test of the validity and scope of a condition in this State is whether it fairly and reasonably relates to the development. The decision of [Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386], although in the context of Queensland legislation, stands for the proposition that should have application in Western Australia: the condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree. 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. … 36 The respondent argued that the proposed subdivision will increase the density of the subject land and increase the population of the area thereby requiring more public open space. Mr Gordon was also of the view that there will be a loss of land available to the occupants of the existing dwelling on the subject land for the purposes of recreation. The applicant gave evidence that the subject land currently contained an existing dwelling and associated recreation areas including a pool, which would remain as part of Lot 1, and the rest of the subject land was either currently unused or used for the applicant’s business operations. 37 In this case the Tribunal is satisfied that condition 7 fairly and reasonably relates to the proposed subdivision. The subdivision of the subject land 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. The evidence before the Tribunal indicates a shortfall of public open space in the locality and the fact that the City has unspent funds and no expenditure plans in the next LOSSIP implementation period does not justify the position of the applicant that it should not be required to (Page 16)
contribute to the provision of public open space in the locality. As acknowledged by the parties, this is a case where cashinlieu of public open space will be required, which will mean that there will exist a fund of money to be used for the provision of suitable public open space in accordance with the objectives of the City's LOSS and future LOSSIPs. 38 The third contention by Mr McKellar was that if the proposed subdivision was to contribute to public open space then the contribution should be calculated using a different method and ultimately be somewhere between 0% and 10% of the gross subdividable land area. 39 His view was that proposed Lot 1, containing the existing dwelling, should be excluded from the calculation as 'it is fully developed; gives no rise to the population in the local area; and creates no additional need for open space'. 40 Mr McKellar also referred to s 153(2) of the PD Act which provides that the respondent is not to require the provision of public open space for subdivisions of less than three lots. Therefore, in this case, in addition to Lot 1, 'one other proposed lot with a substantial common boundary to that existing house lot, which in this case is proposed Lot 2' should be excluded because 'it would be unreasonable for a subdivision of less than three lots to have no open space contribution at all and a small subdivision of just over three lots to contribute to the full 10% requirement'. Consequently, it was Mr McKellar's proposition that the wording of condition 7 be changed to require the ceding of 261 square metres (instead of 404.7 square metres) of public open space. 41 Mr Gordon disagreed with this method of calculating the appropriate amount of public open space. It was his view that the lot containing the existing dwelling should not be excluded as there was no evidence that there had been any previous public open space contributions made and that the demand generated by the residents of that lot has not been satisfied in any other form. 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. The Tribunal understands that without Lot 1, the average site area is 518.83 square metres and the Codes require 571 square metres, which results in a 9.1% shortfall. 42 In regard to excluding the second lot from the calculations, the respondent was of the view that the existence of s 153(2) of the PD Act was not an appropriate basis for reducing the required amount of public (Page 17)
open space. According to the respondent, s 153(2) of the PD Act simply reflects 'a longstanding practice of exempting smallscale subdivisions from POS contributions'. 43 The Tribunal agrees that s 153(2) of the PD Act does not provide sufficient justification for the reduction of a seven lot subdivision public open space contribution calculation by the area of two lots. DC 2.3 is clear regarding the respondent's normal requirement for 10% of the gross subdividable area to be given free of cost for public open space. Reference is made that under certain circumstances five lot subdivisions may not be required to contribute public open space but those circumstances include situations where the applicant demonstrates that land has previously been given up for open space or where there is sufficient open space in the locality. In this case, it has not been demonstrated that public open space has already been given up in an earlier subdivision nor has it been established that there is sufficient open space in the locality. In fact, the City has prepared an assessment which clearly identifies that there is a shortfall of public open space in the locality. It should also be noted that these exceptions apply for five lot subdivisions and that the matter under review is a seven lot subdivision. 44 With regard to the argument that the lot containing the existing dwelling should be excluded from the calculations, the Tribunal prefers the position of Mr Gordon, and agrees that it should be included in the gross subdividable area for the purposes of calculating the public open space contribution. 45 The Tribunal is not satisfied in this case that there is a cogent reason to depart form the respondent's policy that 10% of the gross subdividable area is to be ceded free of cost as public open space.
Conclusion 46 The Tribunal has determined that the condition requiring the ceding of 404.7 square metres of land for the purposes of public open space is an appropriate planning condition in the circumstances of this case. The condition has been imposed in accordance with the respondent’s policy framework, which has been developed for legitimate planning purposes. The condition fairly and reasonably relates to the subdivision and is reasonable in the particular circumstances of this case. 47 The Tribunal therefore finds that condition 7 of the subdivision approval granted by the respondent on 28 September 2010 should be affirmed and the application for review be dismissed. (Page 18)
Orders 48 The Tribunal makes the following orders: 1. The application for review is dismissed. 2. 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. (Page 19)
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