| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TILLBROOK and WESTERN AUSTRALIA PLANNING COMMISSION [2011] WASAT 130 MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : 24 MAY 2011 DELIVERED : 17 AUGUST 2011 FILE NO/S : DR 77 of 2010 BETWEEN : JOHN BEVAN TILLBROOK Applicant
AND
WESTERN AUSTRALIA PLANNING COMMISSION
Respondent
Catchwords: Planning and development - Review of condition - Condition requiring contribution to cost of land for primary school - Whether for a planning purpose - whether condition reasonably and fairly related to development Legislation: Planning and Development Act 2005 (WA), s 26 s 143, s 152, s 152(1), s 153, s154, s 155, s 156, Div 3, Pt 10
Schools and Education Act 1999 (WA)
Wanneroo District Planning Scheme No 2, Pt 9, Sch 9, Pt 10
(Page 2)
Result: Condition set aside with new condition to be substituted Category: A
Representation: Counsel:
Applicant : Mr M Hotchkin
Respondent : Ms K Ide
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The Tribunal was called upon to review a condition which required a pro-rata contribution towards the cost of a primary school site to be made by the applicant for subdivision. The Tribunal considered whether such a condition served a proper planning purpose, and whether it fairly and reasonably related to the proposed development. 2 The Tribunal concluded that, while a condition which requires a contribution to a primary school site is, where the proposed development contributes to the need for such a site, capable of serving a proper planning purpose, and fairly and reasonably relating to the proposed development, the approach to calculation of the contribution in relation to this submission could not be said to meet that latter requirement. 3 Accordingly, the Tribunal set aside the decision on the basis that it be replaced with a condition which specified the amount of the contribution, calculated in a way which satisfied the requirement that it fairly and reasonably related to the proposed subdivision.
The issue 4 On 18 February 2010, the respondent, the Western Australian Planning Commission (Commission) granted approval for the subdivision of land owned by the applicant in Landsdale Road, Darch (the subject land). The approval was given subject to a number of conditions. One of those was Condition 21 which was in the following terms: The applicant/owner making a pro-rata contribution towards the cost of the acquisition of the primary school site identified in the East Wanneroo Cell No 6. Agreed Structure Plan (Department of Education and Training). 5 The applicant sought a review of that condition. He did so on the basis that he contended that the condition should be set aside as it did not reasonably and fairly relate to the proposed development and thus did not satisfy the requirements for a valid planning condition as explained by the High Court in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 (Temwood) . It is that contention which constitutes the issue for determination.
The relevant facts 6 The subject land is zoned 'Urban Development' under the City of Wanneroo's District Planning Scheme No 2 (DPS 2). Pursuant to Pt 9 of (Page 4)
DPS 2, a Local Structure Plan, known as the East Wanneroo Cell 6 Agreed Local Structure Plan No 8 (Cell 6 Structure Plan) was prepared. The Cell 6 Structure Plan was adopted by the City of Wanneroo on 21 September 2004 and certified by the Commission on 19 October 2004. The subject land and the Ashdale Primary School are shown on the Cell 6 Structure Plan. 7 On 28 April 2004, the Department of Education (Department) acquired the land on which the Ashdale Primary is situated. That land comprised an area of 3.512 hectares consisting of two lots on the corner of Westport Parade and Ashdale Boulevard. 8 Mr Richard Bloor holds the position of Principal Consultant in the Strategic Asset Planning Directorate of the Western Australian Department of Education. He has held that position since 1999. He explained the circumstances in which the Ashdale Primary School site was acquired. The site for the school having been identified in the Structure Plan, the Department negotiated its purchase with the owner of the land on which the site was located, Stockland WA Development Pty Ltd (Stockland). 9 Mr Bloor explained that normally, a standard primary school has a catchment of 1500 to 1800 residential lots. That figure is found in the Commission's Policy No DC 2.4 - School Sites, at cl 3.1.2. Reference is also made to a requirement of one government primary school per 1500 housing units in Element 8 of the Commission's Liveable Neighbourhoods Policy. 10 Mr Bloor explained that the current policy of requiring developer contributions towards the cost of primary school sites was developed from a system to manage development on the urban fringe. He said [at T: 14, 24.05.11]: So it derived from the old greenfields style subdivisions where you had one developer who was developing very large tracts of land and would just give up a primary school free of cost as part of that process. Now as developments have moved into areas of fragmented land ownership, such as Landsdale, Canningvale, other areas of that nature … government has had to implement this system to try and allocate equitably across these areas of fragmented land ownership as system whereby one developer or landowner gives up a school site free of cost, and the other developers within that catchment for the school have to provide an amount of money that equates to the amount they would have given up if they had the school site on their land. (Page 5)
11 In this case, the subdivision of Stockland produced 714 housing units which represented 44% of the 1,634 lots estimated as likely to be produced with the total catchment area identified for the Ashdale Primary School. Accordingly, the Department paid Stockland 56% of the value of the land taken for the primary school with the result that, in effect, Stockland had paid 44% of the cost of acquisition of the land. The Department then proposed to recover the balance of the costs from all other developers in the catchment through the application by the Commission of prorata contributions, in accordance with its general practice. 12 On 25 November 2009, the applicant lodged an application to subdivide the subject land. The estimated housing lot yield for the applicant's undeveloped land holding was assessed by the Commission at 138. Where, as here, the land for the primary school site had already been purchased by the Department in advance of the subdivision application being made, the required contributions are calculated by the Department on the basis of the cost of the land increased by the Consumer Price Index (CPI) over the period between purchase and assessment of the contribution. On that basis, the Department applied a contribution rate of $1780 per lot to the 138 lots to be created, giving rise to a total required contribution of $245,640. 13 Mr Bloor estimated, based on census data which suggested 0.4 students per housing unit, the applicant's subdivision would be expected to generate 58 year 1 - 7 students and 8 kindergarten and pre-primary students who would be entitled to attend the Ashdale Primary School.
The Commission's power to impose conditions 14 Section 143 of the Planning and Development Act 2005 (WA) (PD Act) enables the Commission to approve a plan of subdivision and 'require the applicant for approval to comply with such conditions as the Commission thinks fit' before the plan of survey is endorsed with approval. 15 Division 3 of Pt 10 of the PD Act deals with conditions of subdivision. Section 152 makes reference to conditions involving a requirement that land be vested in the Crown for various purposes. Section 152(1) reads: (1) If the Commission has approved a subdivision of land subject to a condition that one or more portions of land shown on a diagram or (Page 6)
plan of survey relating to the subdivision or a plan under the Strata Titles Act 1985 are to vest in the Crown for any one or more of the following purposes - (a) conservation or protection of the environment; (b) an artificial waterway; (c) a pedestrian accessway; (d) a right-of-way; (e) a reserve for water supply, sewerage, drainage, foreshore management, waterway management or recreation; (f) a public purpose specified in the condition and related to the subdivision, then, subject to the encumbrances referred to in subsection (5), the land subject to the condition vests in the Crown by force of this section without any conveyance, transfer or assignment or the payment of any fee. 16 Section 153 provides that if the Commission has approved a plan of subdivision on condition that a portion of the land be set aside and vested in the Crown for parks, recreation grounds or open space generally, the Commission may require the owner to pay a sum representing the value of the land in lieu of setting aside the portion. Section 154 makes provision for the manner in which money paid pursuant to a requirement under s 153 is to be applied. Section 155 specifies how the value of the land for the purpose of requiring payment in lieu is to be ascertained. A mechanism for resolution of disputes as to the valuation of the land made under s 155 is provided for in s 156. 17 The power to impose conditions is not unfettered. The limits on the Commission's ability to impose conditions on development were explained by McHugh J in Temwood at [56] - [57]. His Honour said: 56The Commission does not dispute that the power to attach conditions to development consents is limited to those conditions that are reasonably capable of being regarded as related to a legitimate planning purpose. That purpose is ascertained from a consideration of the applicable legislation and town planning instruments to which the responsible authority is subject. The purpose is not ascertained from 'some preconceived general notion of what constitutes planning' (90).. In Bathurst City Council v PWC Properties Pty Ltd (91), this Court endorsed the statement of Walsh J in Allen Commercial Constructions Pty Ltd v North Sydney (Page 7)
Municipal Council that the power to attach conditions to development consents was to be understood (92): not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council (93), as being 'the implementation of planning policy', provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained. 57The Commission also does not dispute that a condition attached to a consent must reasonably and fairly relate to the development permitted. A condition attached to a grant of planning permission will not be valid therefore unless: The Commission's policies in relation to school sites 18 Ms Sally Grebe is a senior planning officer in the Department of Planning who gave evidence for the Commission. She identified a number of policies which provide for the Commission to require subdividers to either cede land that is required for a primary school site, or to make a pro-rata contribution towards the acquisition of a school site by the Department of Education where the subdivision generates the need for a school. (Page 8)
19 The first such policy was a State Planning Policy 3.6 - Development Contributions for Infrastructure (SPP 3.6). SPP 3.6 is a policy made pursuant to s 26 of the PD Act. 20 The introduction and background to SPP 3.6 explains that the policy sets out the principles and considerations that apply to development contributions for the provision of infrastructure and in new and established urban areas. It continues: The careful planning and coordination of infrastructure is fundamental to the economic and social well-being of any community. New urban development and redevelopment needs to ensure the cost efficient provision of infrastructure and facilities, such as roads, public transport, water supply, sewerage, electricity, gas, telecommunications, drainage, open space, schools, health, community and recreation facilities. All of these utilities and services greatly influence the standard of living, mobility and lifestyle choices of a community. … Land developers are responsible for the provision of standard infrastructure, including water supply, sewerage and drainage, roads and power, and for some community infrastructure, including public open space and primary school sites which are necessary for the development. … Development contributions are usually by way of land, works, or payments towards the provision of infrastructure. Requirements for development contributions are imposed by way of conditions on subdivision, strata subdivision or development or, in areas of fragmented ownership where cost sharing arrangements are necessary, by development schemes or development contribution arrangements made under local government schemes. 21 Clause 5.1 of SPP 3.6 provides: Development contributions can be sought for items of infrastructure that are required to support the orderly development of an area. This includes the standard requirements for infrastructure contributions as outlined in appendix 1. 22 Appendix 1 identifies land for government primary schools as being a standard development contribution requirement. 23 Clause 5.2 of SPP 3.6 provides: 5.2 Principles underlying development contributions (Page 9)
Development contributions must be levied in accordance with the following principles - 1. Need and the nexus The need for the infrastructure included in the development contribution plan must be clearly demonstrated (need) and the connection between the development and the demand created should be clearly established (nexus). 2. Transparency Both the method for calculating the development contribution and the manner in which it is applied should be clear, transparent and simple to understand and administer. 3. Equity Development contributions should be levied from all developments within a development contribution area, based on their relative contribution to need. 4. Certainty All development contributions should be clearly identified and methods of accounting for escalation agreed upon at the commencement of a development. 5. Efficiency Development contributions should be justified on a whole of life capital cost basis consistent with maintaining financial discipline on service providers by precluding over recovery of costs. 6. Consistency Development contributions should be applied uniformly across a Development Contribution Area and the methodology for applying contributions should be consistent. 7. Right of consultation and arbitration Land owners and developers have the right to be consulted on the manner in which development contributions are determined. They also have the opportunity to seek a review by an independent third party if they believe that the calculation of the contributions is not reasonable in accordance with the procedures set out in the draft Model Scheme Text in appendix 2. 8. Accountable (Page 10)
There must be accountability in the manner in which development contributions are determined and expended. 24 Clause 5.6 identifies the form of contributions, which includes monetary contributions 'to acquire land or undertake works by or on behalf of public authorities'. 25 Development Control Policy 1.1 (DC 1.1) - subdivision of land - general principles includes as its policy objectives the making of appropriate arrangements for development contributions where necessary for the orderly and proper planning of a locality and the making of appropriate arrangements, where necessary for planning purposes, for the ceding or transfer of land. 26 Clause 3.9 of DC 1.1 provides: 27 Development Control Policy 2.4 (DC 2.4), as already mentioned, deals with school sites. It policy objectives include making provision for school sites and other education facilities related to community needs, and to indicate school site requirements and criteria for their selection. As Mr Bloor identified, DC 2.4 specifies that there should be one primary school site for between 1500 and 1800 housing units. Clause 3.3.7 of DC 2.4 provides: In broadacre subdivision where the particular subdivision generates the need for a primary school the subdivider should provide for the ceding of the government primary school site free of cost. Where land is in multiple ownership the subdividing landowners should provide a pro-rata contribution for the acquisition of the primary school site. Where a school site is identified within a subdividing landowner’s land the Commission (Page 11)
will require as a condition of subdivision that arrangements be made to ensure that the land is transferred to the Education Department within a defined time period, generally within 18 months of approval. In the event of a site for a proposed primary school being surplus to the requirements of the community, the land should be offered for disposal of to the contributing landowners in accordance with the policy of the Department of Land Administration. 28 Liveable Neighbourhoods is an operational policy for the design and assessment of structure plans and subdivision for new urban areas. Element 8 of Liveable Neighbourhoods deals with schools. The introduction to Element 8 states: Experience has shown that there is a correlation between the number of single residential lots created by subdivision and the need for school sites. … It is important that consideration for the provision of school sites is undertaken at the … district structure planning stage … 29 The policy makes the following observation in relation to primary schools: For example the WAPC considers there is a close association between the planning of neighbourhoods and primary schools. Importantly, it is the social value of primary schools that has a vital role in the development of urban areas. In particular, the role of the primary school as a key place making element needs to be respected in the design of new urban areas. 30 Under the heading 'General principles and background to objectives and requirements', the policy states: Primary school sites are to be given up free of cost by the landowner supporting the school site and pro-rata contributions provided by the landowners in the catchment of the primary school site. 31 Provision R15 entitled 'Ceding and acquisition of land' states: In broad acre subdivisions where the subdivision generates or contributes to the need for a primary school, the subdivider shall cede or contribute to the provision of the government primary school site free of cost. Where land is in multiple ownerships, the subdividing landowners are to provide a pro-rata contribution towards the acquisition of the primary school site.
Is the condition for a planning purpose? 32 Against the background of the PD Act and the planning policies set out above, a condition which requires a pro-rata contribution towards the costs of acquisition of a primary school site, where the lots created by the (Page 12)
subdivision create a need for a primary school, is a condition imposed for a planning purpose. 33 The applicant argues that the provision and funding of government schools is a function of the Minister for Education under the Schools Education Act 1999 (WA). He submits that unlike conditions that require the ceding and foreshore and recreation reserves - which are contemplated by the PD Act - the PD Act does not contain any express power to acquire land for schools, nor to impose obligations by way of conditions to recover the cost of acquisition of land for schools. 34 I do not accept that submission. Section 152(1) of the PD Act, which is set out above, specifically contemplates approval of a subdivision on condition that land vest in the Crown for 'a public purpose specified in the condition'. Use of land as a government primary school is a public purpose. There is a logical and obvious connection between the creation of residential lots in a greenfield site and a need for a primary school to service the locality created by the new subdivisions. The fact that some of the eventual owners of lots may not choose to utilise the public primary school does not destroy that nexus. The various policies outlined above reflect that connection and seek to address the planning issues which arise as a consequence. As McHugh J noted in Temwood, 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. The PD Act contemplates the imposition of conditions requiring ceding of land for a public purpose. New subdivisions create a requirement for primary schooling in the locality. The policies adopted by the Commission which seek to address a system of provision of necessary and appropriate school sites are, in my view, consistent with the scope of the PD Act. 35 Although the policies deal with an item of infrastructure not specifically dealt with in the PD Act, it is the PD Act which remains the source of power to impose the condition. I therefore reject the applicant's submission that, to the extent they impose requirements to contribute to the acquisition of school sites, the various policies should be given no weight because they lack a legislative basis. 36 The fact that the Minister for Education is charged with the role of acquiring and administering the state education system does not exclude the provision of school sites from the range of public purposes that might come within s 152 of the PD Act. (Page 13)
Does the condition reasonably and fairly relate to the development? 37 The need for a primary school is, as Mr Bloor explained, identified by reference to the expected number of residential lots contained within a particular locality. In a circumstance where the whole of the land proposed to be subdivided is in a single ownership, and comprises an area identified as an appropriate catchment area for a primary school, there is no difficulty in concluding that a condition which requires the ceding of that land would reasonably and fairly relate to the proposed subdivision. 38 Where the land comprising the catchment area is in multiple ownership, it is obviously impossible to obtain a school site by each landowner contributing a portion of their land for the purposes of a primary school. A condition which facilitates an equitable system of contribution for the acquisition of an appropriate primary school site leads, in practical terms, to the same result as requiring a single owner of the whole parcel to cede the whole of a site for a primary school. A condition requiring a proportionate contribution by each landowner in the catchment area does reasonably and fairly relate to the proposed subdivision, since the individual landowner's subdivision contributes to the need for the establishment of a primary school. In its terms, and in the context in which Mr Bloor explained the way the catchment area had been identified, the condition would appear to reasonably and fairly relate to the proposed subdivision. The difficulty arises, however, from the manner in which the respondent proposes to implement the condition. To understand that difficulty, it is necessary to refer in more detail to Mr Bloor's oral evidence. 39 Mr Bloor explained that the Ashdale Primary School 'serves 1,634 housing lots in its designated catchment area'. As already mentioned, the original subdivision by Stockland produced 714 housing units. 714 housing units is approximately 44% of 1,634 housing units. It is clear, therefore, that the figure of 1,634 was based upon the expected number of lots at the time of the original subdivision by Stockland. 40 Subdivision of the subject land will produce 138 lots. As I understand Mr Bloor's evidence, the contribution that will be required to satisfy condition 21 is calculated by taking the amount paid for the site, increasing it by a factor representing the CPI (although which particular element of that index was not identified in evidence), dividing that figure by 1,634 to obtain a current contribution per proposed lot, and then multiplying that figure by 138 to determine the total contribution. The problem with that approach, as Mr Bloor acknowledged, arises because (Page 14)
the subject land has apparently been 'upcoded' under the local planning scheme since the initial subdivision by Stockland. It was not in issue that that the land was originally zoned R20 but had been more recently rezoned as R40. The effect of that change is that the yield of lots over the same area of land is effectively doubled. The consequence is that the total number of lots in the catchment area would no longer be expected to be 1,634, but some greater number. 41 It can immediately be seen that, because the denominator in the equation does not change to reflect the reality, it is probable that, once all of the land in the catchment area is subdivided, the total amount recovered for the acquisition of the school site will exceed the amount paid even allowing for an increase by a CPI factor. 42 Mr Bloor acknowledged this possibility. He confirmed that: 43 Mr Bloor acknowledged that equitable contributions could be obtained if the contribution required in respect of a particular subdivisional area was calculated by reference to the originally expected lot yield for that portion. That is not, however, the approach which is proposed to be taken, nor apparently has been taken in the progressive submissions in the Ashdale Primary School catchment to date. 44 SPP 3.6 contemplates development contribution plans which might be incorporated in guided development plans or structure plans. In that way, the principles outlined in cl 5.2 of SPP 3.6 can be achieved. Clause 6 of the Cell 6 Structure Plan deals with infrastructure contributions. It provides that contributions to 'Cell Works' should be determined in accordance with DPS 2. It also provides that 'Cell Costs' shall be reviewed in accordance with the provisions of DPS 2. 45 Part 10 of DPS 2 deals with developer contributions to infrastructure, and Sch 9 of DPS 2 identifies certain specific infrastructure costs that are (Page 15)
included as 'Cell Costs' in each cell, including Cell 6. Part 10 sets out the detailed arrangements in relation to contributions. Clause 10.6 deals with the calculation and appointment of cell works and costs. Clause 10.9 deals with the application of funds in cell accounts and prioritisation of cell works. Clause 10.8 deals with recoupment of contributions not previously made. Clause 10.10 provides a detailed mechanism for estimating contributions. Part 10 in its entirety reflects the principles and approach to developer contributions provided for in SPP 3.6. 46 The provision of land for the Ashdale Primary School is not mentioned in Sch 9 DPS 2. Thus the Cell 6 Structure Plan is silent as to contributions by developers to that item of infrastructure. 47 The consequence of the approach taken to the calculation of contributions to the Ashdale Primary School acquisition falls substantially short of achieving the principles referred to in cl 5.2 of SPP 3.6. Importantly, the requirement which causes a payment to be made which, when taken with other payments made, results in an over recovery by the Minister for Education of the cost of acquisition of the primary school site, cannot be said to reasonably and fairly relate to the development. 48 The way condition 21 operates lacks transparency, does not result in equitable contribution between all developers, is potentially inconsistent (where as here, the changed coding gives rise to a different contribution), and lacks accountability. 49 The Tribunal was not provided with a calculation of the actual contributions by progressive subdividers to the cost of the Ashdale Primary School. It may be that the full cost of the Primary school has already been recouped. If that is true, then the contribution by the applicant is not, in reality, a contribution to the acquisition of the Ashdale Primary School land, but rather is a contribution to the general operating funds of the Minister for Education. In its operation, therefore, it cannot be said that condition 21 reasonably and fairly relates to the development. 50 The prospect of over recovery was put to Mr Bloor. He contrasted the situation to one where the contribution is made by a land owner prior to acquisition of a school site on the basis of the value of the site at that time, with the school site being later acquired after a significant increase in the value of the land. In that case, Mr Bloor said, the original subdivider would have 'paid at a very low rate … so the dollars for this one are much lower than what it cost us to pay the oversupply for here so (Page 16)
what you're getting is a swings and roundabouts effect, because the early developers get the lower rate …'. 51 That approach is thus designed to achieve either under or over recoveries in relation to completely unrelated subdivisions so that, in the end, the Minister generally recovers roughly her overall expenditure in primary school sites in subdivisions throughout the state. Conditions of subdivisions applied on that basis do not satisfy the requirements for planning conditions as explained in Temwood. It is no answer to say, as Mr Bloor did, that at the Department simply does not have the resources to calculate an accurate and fair contribution.
Should the condition stand? 52 As already concluded, a condition which provides for a fair and equitable contribution to the cost of the acquisition of a primary school site, where the subdivision creates lots which in turn create a requirement for the establishment of the primary school, does constitute a planning purpose. If it is calculated by reference to the proportionate demand which is created by the particular subdivision, and forms part of an overall scheme which is designed to recover the actual real cost of purchasing the land (which may include the application of an appropriate interest or CPI rate) then the condition will reasonably and fairly relate to the development. Although at first reading, condition 21 appears designed to achieve those ends, it is quite clear from the evidence which the Tribunal has received that it will, or at least may, not operate to achieve that end. 53 Condition 21 should not simply be set aside without more. That is because it is likely that, in order to achieve a fair and equitable contribution between land owners within the Ashdale Primary School catchment area, some contribution to the acquisition is required in relation to the subdivision of the subject land. That could be achieved by identifying, and incorporating within the condition, a specific amount which is required to be paid to meet that contribution. That amount needs to be determined having regard to the history and extent of contributions of other land owners and the anticipated further contributions with any presently un-subdivided land within the Cell 6 area. The Tribunal was not provided with sufficient evidence to enable that calculation to be undertaken. 54 Accordingly, it is appropriate that the condition be set aside, and in its place there should be a condition requiring the payment of a specified sum to be agreed between the parties in light of these reasons or, failing agreement, determined by the Tribunal following a further hearing. (Page 17)
Orders 1. The application for review of condition 21 of the respondent's approval dated 18 February 2010 is allowed. 2. Condition 21 is set aside and in its place there is to be a condition which requires the applicant to make a prorata contribution towards the cost of acquisition of the Ashdale Primary School site in an amount to be agreed by the parties, or if not agreed, to be determined by the Tribunal following a further hearing. 3. The application is adjourned for directions at 9:30 am on Tuesday 23 August 2011 in order to further programme the matter. |