TOWIE and WESTERN AUSTRALIAN PLANNING COMMISSION
[2010] WASAT 32
•26 FEBRUARY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TOWIE and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 32
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 26 FEBRUARY 2010
FILE NO/S: DR 371 of 2009
BETWEEN: JOHN HENRY TOWIE
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Condition - Provision of easement for existing and future electricity transmission lines traversing land - Whether condition is valid - Whether condition is reasonable - Whether condition should be amended to enable compensation to be negotiated
Legislation:
Energy Operators (Powers) Act 1979 (WA), s 28(3)(e), s 45(4)
Land Administration Act 1997 (WA)
Planning and Development Act 2005 (WA), s 135, s 145, s 151, s 251(2)
Result:
Condition varied
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr M Cuthbert (Public Sector Employee)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Lavenda Pty Ltd and Town of Vincent [2006] WASAT 374; (2006) 48 SR (WA) 149
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
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr John Towie obtained subdivision approval for the amalgamation and resubdivision of three lots in Manjimup. One of the existing lots and three of the new lots are traversed by a 132,000 volt electricity transmission line owned and operated by Western Power. Western Power does not have an easement in respect of the transmission line. On the advice of Western Power, the Western Australian Planning Commission imposed a condition of subdivision approval requiring the provision of an easement to Western Power for existing and future transmission lines traversing the land.
Mr Towie did not contest the validity of the condition, but rather, asked the Tribunal to amend it to enable the landowner to negotiate compensation for the easement from Western Power. Western Power indicated that it would not pay compensation for the easement required by the condition imposed by the Western Australian Planning Commission.
The Tribunal determined that it is appropriate and reasonable for the landowner to provide an easement for the existing transmission line without the payment of compensation, because the changes precipitated by the subdivision are the only factors that warrant the provision of the easement. However, it would not be appropriate or reasonable to require the landowner to provide an easement as a condition of subdivision approval for future transmission works and thereby be precluded from ever obtaining compensation for such an easement. Western Power was either compelled or at least authorised (depending on the capacity of the works) by statute to acquire an easement in respect of future works. If, ultimately, Western Power elected to construct new works, it should exercise its powers and pay appropriate compensation, as it has done in respect of another transmission line in the area.
The condition was therefore amended to require the provision of an easement only for the existing transmission infrastructure.
Introduction
The Western Australian Planning Commission (Commission) granted approval, subject to conditions, to an application made by Mr John Towie, a consultant surveyor, under s 135 of the Planning and Development Act 2005 (WA) (PD Act) for the amalgamation of Lot 12, Lot 17 and Lot 62 SouthWestern Highway, Manjimup (land) and resubdivision of the land into three lots. The land has an area of approximately 364 hectares. Lot 12 has an area of approximately 334 hectares and has frontage to SouthWestern Highway. Lot 17 and Lot 62 have areas of 4 hectares and 24 hectares, respectively, and do not have any frontage to a public road. The approved subdivision involves the rationalisation of the three existing allotments into two rural lots with areas of approximately 147 hectares and 189 hectares, and one rural lifestyle lot with an area of approximately 27 hectares. The two larger lots have frontage to SouthWestern Highway and the smaller lot has frontage to another public road via an access leg forming part of that lot.
A 132,000 volt (132 kV) electricity transmission line, known as the Muja to Manjimup/Bridgetown (81) transmission line (TL 81), traverses the land from north to south. TL 81 was constructed in 1975. The energy operator, Western Power, owns and operates TL 81 but does not have an easement under the Energy Operators (Powers) Act 1979 (WA) (EOP Act) in respect of the part of the land traversed by TL 81. On the advice of Western Power, the Commission imposed the following condition (condition 2) on its approval of the subdivision:
Arrangements being made to the satisfaction of the Western Australian Planning Commission and the specification of Western Power for the provision of suitable easements under the Energy Operators (Powers) Act 1979 for existing and/or future transmission (33,000 Volt or greater) electricity network infrastructure. (Western Power)
Under s 151 of the PD Act, Mr Towie sought reconsideration of condition 2 and, in particular, asked the Commission to amend the condition to enable the landowner to negotiate compensation from Western Power for the easement. However, the Commission confirmed the condition. In the notice of its decision, the Commission referred to Western Power's advice that the easement is necessary to 'protect our assets and the safety of people and property near it'. The Commission noted that Western Power agreed to pay document registration costs for the easement.
Mr Towie subsequently sought review by the Tribunal, under s 251(2) of the PD Act, of the Commission's decision to impose condition 2. Mr Towie did not contest the validity of the condition. Rather, Mr Towie argued that, in fairness to the landowner, the condition should be amended by the Tribunal to enable negotiation of compensation from Western Power for the easement. Western Power has indicated that it will not pay compensation to the landowner for the provision of the easement required by condition 2 as imposed by the Commission. Mr Towie argued that:
Although the Commission has the statutory power to impose conditions, the imposition of any condition should not be seen as taking away any legal claim to compensation that is embodied in other legislation.
Should condition 2 be amended?
As noted earlier, Mr Towie did not contest the validity of condition 2. I agree that the condition can be validly imposed under the test for validity of a condition of planning approval stated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578. The test was endorsed by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [57] in the following terms:
… A condition attached to a grant of planning permission will not be valid therefore unless:
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development [or subdivision] permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
Condition 2 is for a planning purpose, namely, to facilitate the protection and maintenance of electricity supply infrastructure. There is a sufficient nexus between the subdivision and condition 2, because TL 81 currently traverses only one of the three allotments comprising the land whereas, under the subdivision, it traverses each of the three allotments. The subdivision, therefore, involves an increase in the intensity of the use of the land in the area of TL 81. Increased intensity of use gives rise to greater potential impact of the development, including use, of the land on TL 81, and of TL 81 on users of the land. Condition 2 'arises from changes precipitated by the … subdivision': Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 endorsed in Lavenda Pty Ltd and Town of Vincent [2006] WASAT 374; (2006) 48 SR (WA) 149 at [15] [18]. Condition 2 is also not manifestly unreasonable.
The issue in this case is, therefore, whether condition 2 is reasonable and appropriate in the absence of the amendment sought by Mr Towie to enable negotiation of compensation for the easement. The Commission argued that the issue of compensation is not a relevant consideration in this review, because condition 2 is silent about compensation and does not preclude the payment of compensation by Western Power. However, in practical terms, condition 2 as imposed by the Commission does preclude the payment of compensation. As noted earlier, Western Power has indicated that it will not pay compensation for the easement required by condition 2 as imposed by the Commission. As the provision of the easement required by condition 2 would not involve a compulsory acquisition of an interest in land, the landowner would not have any right to compensation under the EOP Act or the Land Administration Act 1997 (WA) (LA Act). While the landowner would be, in practical terms, compelled by condition 2 to provide the easement to Western Power, if it wishes to have the condition cleared by Western Power, the provision of the easement would be by agreement for the purposes of the EOP Act and would, therefore, not be subject to the compensation provisions under that Act and the LA Act.
Section 45(4) of the EOP Act requires Western Power:
… to acquire, where practicable by agreement but otherwise pursuant to Part 9 of the Land Administration Act 1997, as read with this section, such land, estate, or interest as may in the opinion of [Western Power] be appropriate to its needs in respect of
…
(b)All electricity transmission works operating at 200,000 volts or above;
…
As noted earlier, TL 81 operates at 132,000 volts. Western Power is, therefore, not obligated by s 45(4) of the EOP Act to acquire an easement over the part of the land traversed by TL 81. However, Western Power has authority under s 28(3)(e) of the EOP Act to:
compulsorily acquire land, or any estate or interest in land, under Part 9 of the Land Administration Act 1997, for the purposes of a public work carried out or to be carried out by the energy operator.
Western Power could, therefore, compulsorily acquire an easement over the land for the purposes of TL 81. If Western Power compulsorily acquired an easement over the land, then compensation would be payable by it to the landowner under the LA Act.
I consider that it is appropriate and reasonable for condition 2 to require the landowner to provide an easement to Western Power under the EOP Act for the existing transmission line that traverses the site without the payment of compensation by Western Power. This is because it is only the changes precipitated by the subdivision that warrant the provision of the easement. There is no evidence that, in the absence of the subdivision, Western Power would compulsorily acquire an easement over the land under s 28(3)(e) of the EOP Act. While Mr Towie has referred to the acquisition of easements by negotiation and following the payment of compensation by Western Power over land traversed by a different transmission line approximately 3 kilometres to the west (the Muja to Manjimup/Bridgetown 82 132,000 volt (132 kV) transmission line (TL 82)), it appears that those easements were sought to undertake significant rebuild works on TL 82. It would not be appropriate or reasonable for Western Power to pay compensation for an easement in respect of the existing TL 81 transmission line in circumstances where it would not seek to obtain the easement but for the subdivision.
However, it would not be appropriate or reasonable to require the landowner to provide an easement as a condition of subdivision approval for future transmission works that may traverse the land and thereby be precluded from ever obtaining compensation for such an easement. If, ultimately, Western Power wishes to install electricity transmission works operating at 200,000 volts or above on the land, then it is under a statutory obligation to acquire an appropriate easement and, therefore, to pay compensation to the landowner either by agreement or through the process under the LA Act. Furthermore, if Western Power elects to rebuild the existing transmission line or to increase its operating capacity to less than 200,000 volts, then Western Power's own operational decision which is unrelated to the subdivision may warrant the acquisition of an easement to facilitate the implementation of the decision. This is what has apparently occurred in respect of TL 82. In such a case, Western Power has authority to acquire an easement and should pay compensation to the landowner or landowners as it has done when acquiring easements to facilitate the upgrade of TL 82. It would not be appropriate or reasonable for condition 2, imposed in response to the subdivision, to preclude the landowner or landowners from receiving compensation for any easement required for the purposes of future transmission works.
Conclusion
Condition 2 is appropriate and reasonable insofar as it requires the provision of a suitable easement under the EOP Act for existing electricity network infrastructure on the land. However, it would be inappropriate and unreasonable to require the provision of suitable easements for future transmission electricity network infrastructure. The condition should also reflect Western Power's indication that it will pay the registration cost for the easement.
Orders
The Tribunal makes the following orders:
1.The application for review is allowed in part.
2.Condition 2 of the conditions imposed by the respondent on application No 139125 on 26 March 2009 and confirmed by the respondent on 1 September 2009 is deleted and is replaced with the following condition:
Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of a suitable easement under the Energy Operators (Powers) Act 1979 (WA) for the existing transmission electricity network infrastructure that traverses the land. Western Power is to pay the registration cost for the easement. (Western Power)
3.For the purposes of s 145 of the Planning and Development Act 2005 (WA), the commencement of the prescribed period in relation to the approval of application No 139125 is 26 February 2010.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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