UNIVERSITY OF WESTERN AUSTRALIA and WESTERN AUSTRALIAN PLANNING COMMISSION - [2017] WASAT 70

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: UNIVERSITY OF WESTERN AUSTRALIA and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 70

MEMBER: MS N OWEN-CONWAY (MEMBER)
MR J JORDAN (SENIOR SESSIONAL MEMBER)

HEARD: 8, 9 AND 16 DECEMBER 2016 AND 30 MARCH 2017

DELIVERED : 12 MAY 2017

FILE NO/S: DR 116 of 2016

BETWEEN: UNIVERSITY OF WESTERN AUSTRALIA
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Planning and development - Condition - Orderly and proper planning - Proof of alleged agreement - Relevance of any agreement - Proper planning purpose - Whether conditions relate fairly and reasonably to development - Adequacy of existing planning controls - Clause 30(1) of the Metropolitan Region Scheme text - Clause 19 of the Metropolitan Region Scheme - Reserve purpose - Public authority - Advice notes not reviewable

Legislation:

City of Perth City Planning Scheme No 2
Evidence Act 1906 (WA)
Higher Education Support Act 2003 (Cth)
Interpretation Act 1984 (WA), s 5
Land Administration Act 1997 (WA)
Metropolitan Region Town Planning Scheme Act 1959 (WA), cl 3, cl 3(2), cl 6, cl 12, cl 13, cl 16, cl 17, cl 18, cl 19, cl 30, cl 30(1), Pt II Div 2, Pt IV
Planning and Development Act 2005 (WA), s 4, s 4(1), s 33, s 252(1), s 241(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 28, s 29, s 32(2)
Tertiary Education Quality and Standards Agency Act 2011
Transfer of Land Act 1893 (WA)
University of Western Australia Act 1911 s 15F

Result:

Review decision varied

Summary of Tribunal's decision:

The University of Western Australia's proposed development of land, vested in it by way of a Crown lease, was granted conditional approval by the Western Australian Planning Commission. Condition 8 imposed an obligation on the University of Western Australia to maintain an accessway within its land to allow for uninterrupted access to the Matilda Bay Foreshore Reserve nearby. Condition 9 imposed an obligation to formalise the condition 8 accessway as an easement. Condition 5 imposed an obligation on the University of Western Australia to devise a car parking management plan, in addition to the University of Western Australia's general parking management plan, that required consultation with the department in whom the Matilda Bay Foreshore Reserve management was conferred.
The Tribunal found that there was no underlying agreement or obligation and no evidence of use to support the imposition of condition 8. The Tribunal found that a condition ensuring vehicular access to the Matilda Bay Foreshore Reserve was required in order for the orderly and proper planning of the locality and to preserve the amenities of the locality.
The Tribunal found that condition 8 was not consistent with the orderly and proper planning of the locality, the preservation and enhancement of the amenities of the locality, and most of all, it is inconsistent with the reserve purpose of the University of Western Australia's land. The Tribunal imposed different conditions and accordingly varied the grant of conditional approval to delete condition 8 and 9 and substitute additional condition 8A and 9A.
The Tribunal found that the University of Western Australia's existing parking management plan was adequate to meet the anticipated needs of car parking arising from the proposed development and that condition 5 did not relate fairly and reasonably to the proposed development, on the facts.
The Tribunal also concluded that it had no jurisdiction to review any 'advice note' that accompanied the grant of conditional approval.

Category: B

Representation:

Counsel:

Applicant: Ms Seaward with Dr Willey
Respondent: Ms Cahill, SC with Ms M Tannock

Solicitors:

Applicant: Squire Patton Boggs
Respondent: State Solicitor's Office

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

Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79
Empire Securities Pty Ltd and Ors and WAPC [2005] WASAT 98
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30
Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation [1992] HCA 53; (1992) 175 CLR 442
Reid v Western Australian Planning Commission [2016] WASCA 181
South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160
St Patricks Community Support Centre and City of Fremantle [2007] WASAT 318
University of Western Australia v City Subiaco (1980) 52 LGRA 360

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 19 April 2016, the applicant, the University of Western Australia, lodged an application for a review of a decision made under a planning scheme pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) by the respondent, the Western Australian Planning Commission. The review decision was made on 22 March 2016 as minuted (Respondent's Bundle (RB) page 75) and communicated by written notice of decision dated 11 April 2016 (RB pages 87 to 90). The applicant's development approval application to the Commission is dated 21 September 2015.

The review decision

The notice dated 11 April 2017 granted the applicant approval to commence development in respect of:
Five Story Student Accommodation Building (Forrest Hall) Containing 33 Multiple Dwellings, 39 Residential Car Parking Bays and Associated Site Development & Landscaping Works
(RB page 87)
on Lot 2885 on Plan 230371 (the Forrest Hall development), subject to 18 conditions (review decision). The applicant seeks a review of the respondent's decision to impose the following three conditions:
5.A Parking Management Plan shall be prepared in consultation with the Department of Parks and Wildlife to the specification and satisfaction of the Western Australian Planning Commission, prior to occupation of the development. Once approved by the Western Australian Planning Commission, the recommendations within the Parking Management Plan are to be implemented in their entirety.
…
8.A 3.0 metre wide access way to be constructed along the entire length of the southeast boundary of the site, adjacent to the proposed development, to the specification of the local government and the satisfaction of the Western Australian Planning Commission.
9. Public Access Easement(s) in accordance with Sections 195 and 196 of the Land Administration Act 1997 for the benefit of Reserve 17375 are to be placed on the certificate(s) of title of Reserve 17331 (lot 2885) specifying access rights over the 3.0 metre wide access way required by Condition 8, prior to occupation of the development, to the satisfaction of the Western Australian Planning Commission.
The review decision was accompanied by a separate advice document concerning compliance with the conditions of the review decision. The applicant seeks an order that the following advice notes be deleted:
7.In relation to Condition 5, the Parking Management Plan shall include, but not be limited to:
i)Quantifying the parking needs of the different users of the Parks and Recreation reserve; and
ii)Identifying mechanisms to appropriately cater for those needs.
…
9.In relation to Condition 8, the access way shall provide vehicular access to the existing northern-most access point to the Parks and Recreation Reserve, located adjacent to the Mounts Bay Road reserve and Cygnet Hall.
(RB page 85)

Orders sought

The applicant initially sought the following orders that:
1.The application for review is allowed;
2.The following amendments are made to the planning approval dated 11 April 2016:
a)condition 5 and associated advice note 7 are deleted;
b)condition 8 and associated advice note 9 are deleted; and
(c)condition 9 is amended to specifically exclude the third, informal access point to the Site.
On 16 December 2016, whilst the applicant maintained its objection to condition 5 (and advice note 7), the applicant alternatively sought an order from the Tribunal that the review decision be varied in that condition 8 be varied (instead of being deleted in its entirety) so as to limit the length of the proposed vehicular access way referred to therein. In that event, the applicant's objection to condition 9 fell away.
On 16 December 2016, the Tribunal requested that the applicant provide the Tribunal with specific proposed alternatives to conditions 8 and 9. On 23 December 2016, the applicant filed in the Tribunal the following alternative to condition 8 as follows:
A 3.0 metre wide access way to be constructed along the south-east boundary of the site (as generally shown on the attached plan), to the specification of the local government and the satisfaction of the Western Australian Planning Commission. (original emphasis)
Following a short hearing on 30 March 2016, the applicant filed in the Tribunal and served on the respondent a further alternative to condition 8, which it ultimately advanced as the correct and preferable condition. The new proposed alternative to condition 8 provides:
A 3.0 metre wide access way to be constructed along the south-east boundary of the site (as generally shown on the attached plan), to the specification of the local government and the satisfaction of the Western Australian Planning Commission. (Original emphasis)
The applicant's attached plan shows a 3 metre wide access way along the southeast boundary of Lot 2885 to what is described in these reasons as access 2, a three metre wide access way along the south eastern boundary of Lot 13177 and an eight metre wide access way along the western boundary of that lot where it abuts Hackett Drive. The purpose of the access way is to facilitate vehicular access to the Forrest Hall development, a 103 car bay carpark on Lot 2885 (which is part of the Forrest Hall development) and access to the abutting reserve 36255 (referred to herein as the Water reserve (see below)) and, across the Water reserve, to what is described in these reasons as accesses 1 and 2 to the Matilda Bay Foreshore Reserve (MBFR).
The applicant has also proposed an alternative condition 9 that includes a reference to an easement to be created and registered over Lot 13177, as well as Lot 2885.
The Tribunal considers that ultimately the applicant seeks an order deleting review decision conditions 5, 8 and 9 and the substitution of the applicant's alternatives to conditions 8 and 9. The applicant maintains its challenge to advice notes 7 and 9 and seeks an order deleting the same.

Grounds for review

In the case of condition 5, the applicant contends that the condition is imposed for an ulterior purpose; the condition is not consistent with the orderly and proper planning of the locality and it is uncertain (application annexure D paragraph 3.1).
In the case of condition 8, the applicant contends that the condition is imposed for an ulterior purpose; it does not arise or relate fairly and reasonably to the Forrest Hall development and is without factual foundation (application annexure D paragraph 3.2). As can be seen by the applicant's final proposed condition to be substituted for condition 8, the applicant does not challenge the condition in so far as it directs that there must be an access way per se. The challenge is limited to the length of the access way.
In the case of condition 9, the applicant's objection is that it relates to condition 8 and to that extent it raises the same grounds (Application annexure D paragraph 3.3). However, the applicant does not challenge the condition in so far as it directs that ultimately any condition concerning an access way should be formalised and registered on the title of Lot 2885 as an easement.
By way of response the respondent contends that the Tribunal should, upon review, affirm the review decision.

Tribunal's jurisdiction and power

This application for review was brought by the applicant pursuant to s 252(1) of the PD Act which relevantly provides:
Subject to subsection (3), if
(a)under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has
…
(ii)granted it subject to any condition,
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority’s decision.
In this proceeding 'responsible authority' is defined by s 4 of the PD Act to mean:
…
(b) in relation to a region planning scheme … the Commission[.]
The phrase 'planning scheme' is defined by s 4 of the PD Act, relevantly, to mean a 'region planning scheme' which in turn is defined to mean, relevantly, the 'Metropolitan Region Scheme' (MRS). The MRS is itself defined by the PD Act to include 'all maps, specifications and other particulars contained in the scheme and colourings, markings or legends on the scheme' in addition to the text of the MRS.
Although the MRS, in part, predates the PD Act and was in force under the Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33 of the PD Act provides it is 'continued in force' and 'has effect as if it were enacted by' the PD Act.
The source of the power conferred upon the respondent to determine the applicant's application for development approval and to impose conditions is found in cl 30(1) of the MRS text (Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79 (Caltex)).
In this proceeding, the review decision is one that is made by the respondent as the responsible authority under a planning scheme (MRS) to grant conditional approval to the Forrest Hall development, for the purposes of s 252(1) of the PD Act, which provision confers jurisdiction upon the Tribunal to review the same. Upon this analysis the review decision falls within the Tribunal's review jurisdiction: s 17 of the State Administrative Tribunal Act (2004) WA (SAT Act).
The review, conducted by the Tribunal in this proceeding is by way of hearing de novo (s 27 SAT Act) so as to arrive at the correct and preferable decision in the matter (s 28 SAT Act). In this review, the Tribunal was afforded the benefit of hearing from lay and expert witnesses and by crossexamination of the same. The Tribunal was also afforded the opportunity of asking questions itself of those witnesses and had the benefit of a view of the land in question which took place on 9 December 2016.
The Tribunal, in addition to the powers conferred on the respondent has the power to affirm, vary or set aside the decision under review on the terms provided for by s 29 of the SAT Act

Proceedings before the Tribunal

The parties attended several mediations in an endeavour to reach a resolution, without success. The final hearing was conducted on 8, 9 and 16 December 2016 and 30 March 2017. The applicant and respondent filed their respective statements of issues, facts and contentions (ASIFC and RSIFC). The following documents were exhibited:

1	Exhibit	Amended Witness Statement of Mark Brabazon dated 28 October 2016
2	Exhibit	Perth Dinghy Sailing Club Welcome Webpage printed 12 September 2016
3	Exhibit	Perth Dinghy Sailing Club Policy and Procedures dated 9 July 2016
4	Exhibit	Perth Dinghy Sailing Club House Rules
5	Exhibit	Amended Expert Witness Statement of Jonathan Philip Riley dated 21 November 2016 with brief and letter of instruction dated 20 October 2016
6	Exhibit	Printout of document from link referred to in paragraph 21 of Mr Riley's statement
7	MFI	Joint Statement of Vincent McMullen and Jonathan Riley dated 30 November 2016
8	Exhibit	Composite document created by Ms Chapman
9	Exhibit	Amended Expert Witness Statement of Rachel Chapman dated 22 November 2016
10	Exhibit	Amended Witness Statement of Vincent McMullen dated 26 October 2016
11	Exhibit	Joint Statement of Vincent McMullen and Rachel Chapman dated 1 December 2016
12	Exhibit	Lease between Perth Dinghy Sailing Club and The Conservation and Land Management Executive Body dated 12 May 2016
13	Exhibit	Lease of Crown Land UWA Sport and Recreation Association Inc and Executive Director Dept Conservation and Land Management commencing 1 July 2004
14A	Exhibit	Lease Governors of Hale School 11 May 2000-04
14B	Exhibit	Governors of Hale School extension of lease 12 July 2011
14C	Exhibit	Letter regarding varying terms of lease dated 8 July 2015
15A	Exhibit	Sub Lease Hale School dated 15 March 2001
15B	Exhibit	Extension of Sub Lease Hale School
15C	Exhibit	Letter regarding varying terms of lease between Hale School and Cygnet Hall dated 9 April 2015
16	Exhibit	Deed of sub-lease between Conservation and Land Management Executive Body and Nature Play (WA) Inc dated 25 November 2015
17	Exhibit	Respondent's Application No 10-50258-2 Lot No 2885 Mounts Bay Road Crawley
18	Exhibit	Emails between Department of Planning and Watercorp with attached plans March 2016
19	Exhibit	RB dated 6 September 2016
20	Exhibit	RB's Supplementary Bundle dated28 October 2016
21	Exhibit	Applicant's s24 Bundle (AB) dated 28 September 2016
22	Exhibit	Aerial photographs 1953, 1965, 1981, 1985, 1995, 2004 and 2014 filed by the applicant

Aerial images of the locality are relied upon by both parties to depict the development of the area and in particular the relevant position of the MBFR and CP23 on Lot 2885. These documents, or similar, as found in each parties' bundle of documents (RB pages 400 405; AB pages 83 86). These documents, or similar, were provided again by the applicant at the Tribunal's request at the conclusion of hearing on 16 December 2016 which comprise Exhibit 22.
Mr Brabazon and Mr McMullen were called by the respondent to give evidence. Ms Chapman and Mr Riley were called by the applicant.

Location and site

The site of the applicant's proposed development is the northern end of the land referred throughout the hearing as carpark 23 (CP23). CP23 is comprised in part of Lot 2885 and is the subject of Certificate of Crown Land Title Volume LR 343 Folio 31 (Crown CT) and, in part, of Lot 13177 abutting to the south. The substantial development is to take place on Lot 2885. No substantial development is proposed to take place on Lot 13177.
By deed dated 3 March 1920 the Crown, in right of the State of Western Australia, granted to the respondent a 999year lease of Lot 2885 for an annual peppercorn rent (Crown lease) - (AB page 103). The Crown lease provides that the term of the lease commenced on 1 July 1919. The land is described in the copy original Crown lease at AB page 106 as:
[A]LL THAT piece or parcel of land situate at Crawley near Perth in Our State of Western Australia known as Swan Location 2885 … delineated on the plan hereunto annexed and marked and distinguished in the maps and books of the Department of Lands and Surveys of Our State as Reserve number 17331[.]
The conditions of the demise include:
That the land hereby demised shall, except as hereinafter expressed, at all times during the said term be used by the lessee as a site for the main buildings of the said University and for no other purpose whatsoever without the Licence in writing of Us Our Heirs and Successors first obtained[.]
On 27 August 1979, 3207m² of additional land was vested in the applicant and incorporated into the Crown lease by variation thereto and incorporated into Lot 2885 (see below).
On 29 February 2000, the Crown lease was amended to include 'Swan Location 13177' by application H376257 (although the dealing number on the register indicates that the application number is H376255) (AB page 131). Lot 13177 currently accommodates the entrance/exit of CP23 to Hackett Drive.

The plan attached to the copy substituted Crown lease (AB page 138) shows Lot 2885 as extending to the boundary of what was then known as Chain Road and which later became known as Hackett Drive. Relevantly, Chain Road ran largely parallel with the water line of Matilda Bay. Between Chain Road and Matilda Bay is a parcel of land referred to as Swan Location 2888 and is the subject of the MBFR R17375. The MBFR abuts the Matilda Bay Reserve 48325 (RSIFC, paragraph 19) to the east. It is not disputed that the MBFR comprises 20.6 hectares and that it follows Matilda Bay for a considerable distance, partly to the north and for some distance to the south, beyond the relevant part of Lot 2885 in this proceeding. The applicant asserts that CP23 is 'situated exclusively within Reserve No 17331 and is not (and has never been) part of the Matilda Bay foreshore reserve' (ASIFC, paragraph 3.13). The Tribunal agrees and finds accordingly.
The sketch of Lot 2885 on the plan attached to the Crown CT (RB pages 95 and 96) also depicts Lot 2885 abutting Chain Road up to the junction of Chain and Fremantle Roads (subsequently Mounts Bay Road). The applicant's interest in Lot 2885 is expressed in the Crown CT as 'primary interest holder' and the land is described as a 'reserve without management order'. There is no dispute that Lots 2885 and 13177 are:
a)vested in the applicant pursuant to the Crown lease; and
b)fall within the locality of the City of Perth.
In short, CP23 has the general shape of an inverted pyramid. Abutting the western, southwestern boundary is the Hackett Drive reserve beyond which is the main university campus. Abutting CP23 to the east is the 3 metre wide Water Corporation reserve, beyond which is the MBFR then Matilda Bay. Immediately to the north of the site is part of the MBFR and Mounts Bay Road. The proposed development is to occur on the broader northern part of Lot 2885 where CP23 is currently partly positioned. The vehicle access from Hackett Drive is from the south to CP23 and from there to the MBFR. The site and neighbouring lots are best observed by reference to the annotated photograph at RB page 407. The use made of the MBFR and the leases thereon is discussed below.

The statutory framework relevant to the review decision

Clause 6 of the MRS text provides that the MRS shall apply to all land within the metropolitan region. Lots 2885 and 13177 are within that region. Part II of the MRS text concerns 'RESERVED LAND' which is defined in cl 3 of the MRS text to mean land reserved for a purpose under the MRS.
Lot 2885 appears on the MRS map and is coloured yellow and marked with superimposed letter 'U' which means that the land is 'deemed to be reserved' under the MRS for a specific public purpose, namely 'University' for which the land may be used (MRS map; cl 12 and Table 1 of the MRS text and legend reference to public purpose University). The fact that the land is reserved for University purposes is consistent with the condition of the Crown lease referred to above. The Tribunal notes that Lot 13177 is not coloured yellow, but green, and is the subject of a reserve for a public purpose parks and recreation (MRS map, cl 12 and Table 1 of the MRS text and the legend reference to public purpose parks and recreation).
Neither Lots 2885 nor 13177 is zoned under the City of Perth Planning Scheme No 2 (RSIFC paragraph 6 agreed by the applicant at ASFIC paragraph 3.1).
Clause 13 of the MRS text provides that subject to 'Division 2 of this Part [Part II of the MRS]':
[N]o person shall commence or carry out any development on reserved land, other than the erection of a boundary fence, without first applying for and obtaining the written approval of the Commission to do so.
Clauses 16 and 17 of the MRS text comprise the entirety of Division 2 of Part II of the MRS text. These provisions are concerned with one category of reserved land - that which is 'owned by or vested in a public authority'. Clause 16(1) of the MRS text permits certain uses of that category of reserved land to take place, without the need for approval by the respondent. Clause 16(1a) of the MRS text permits certain development on that category of reserved land without the need for approval by the respondent. Uses and development beyond those identified in cl 16(1) and (1a) of the MRS text require approval by the respondent (cl 16(2) of the MRS text).
The parties agree that cl 16 of the MRS text has no application to this review for different reasons (RSIFC paragraphs 6, 7 and 8 and ASIFC paragraph 3.1). The applicant asserts that Division 2 has no application to this matter because the relevant land is not owned by or vested in a public authority.
Division 3 of Part II of the MRS text comprises cl 18, 19 and 20 and is expressed to be concerned with the other category of reserved land that which is not owned by or vested in a public authority. Clause 18 of the MRS text provides that:
[N]o person shall commence or carry out any development on reserved land that is not owned by or vested in a public authority without the written approval of the Commission to do so.
The prohibition in cl 18 of the MRS text applies 'Except as provided for by Clauses 13 and 16'. Clause 16 of the MRS text can have no application to reserved land that is not owned by or vested in a public authority as it only applies to reserved land owned by or vested in a public authority. This appears to be an anomaly in the drafting of cl 18 of the MRS text. The Tribunal is guided by the earlier decision of this Tribunal in Caltex and the authorities relied upon by Pritchard J (as she then was) that, in construing the MRS, the Tribunal must 'focus on practical considerations relating to the operation of the instrument in question, and to avoid a meticulous comparison of the language of its provisions' (Caltex at [37]) particularly in light of the fact that 'the meaning of a number of clauses in the MRS is far from clear' and '… the MRS has been amended on numerous occasions' (Caltexat [34]). The Tribunal adopts these statements in construing the provisions of the MRS notwithstanding that the MRS meets the definition of subsidiary legislation to which the ordinary principles relating to interpretation apply, as provided for by s 5 of the Interpretation Act 1984 (WA) (Caltex at [33]).
Clause 19 of the MRS text which applies to reserved land not owned by or vested in a public authority provides:
The approval of the Commission given under this Division may be subject to such conditions as the Commission considers necessary having regard to the purpose for which the land is reserved under the Scheme and may without limiting the generality of the foregoing include conditions limiting the period of the approval and relating to the type of buildings that may be built on the land and the removal of buildings from the land.
Clause 30 of the MRS appears in Part IV of the MRS text and provides:
(1)The Commission or a local authority exercising the powers of the Commission so delegated to it under the Planning and Development Act 2005 may consult with any authority that in the circumstances it thinks appropriate; and having regard to the purpose for which the land is zoned or reserved under the Scheme, the orderly and proper planning of the locality and the preservation of the amenities of the locality may, in respect of any application for approval to commence development, refuse its approval or may grant its approval subject to such conditions if any as it may deem fit.
Any tension between cl 19 and cl 30(1) of the MRS text as to the source of power to approve, refuse, or conditionally approve, a use or development application, in the case of reserved land that is not owned by or vested in a public authority, was considered in Caltexand it was determined that:
a)Notwithstanding its opening words, cl 19 of the MRS text does not constitute a source of power to grant approval or conditional approval to or refuse an application for approval at [48].
b)None of the clauses in Division 3 of Part II of the MRS text constitute such a power.
c)Clause 30(1) of the MRS text constitutes the source of power to grant an approval or conditional approval to or refuse an application for approval for the development of reserved land (whether it is owned by a public authority or not) at [55].
d)Where it applies, cl 19 of the MRS text highlights which of the considerations referred to in cl 30(1) of the MRS text 'is pertinent to the grant of approval, subject to conditions, for a development on reserved land' that is not owned by or vested in a public authority at [60].
e)The consideration highlighted by cl 19 of the MRS text is 'the purpose for which the land is reserved under the scheme' and directs the decision maker to focus on that factor when considering an application for approval and assessing whether it is necessary to impose any condition and what the conditions should be at [60].
The reference to 'necessary' tends to suggest that the purpose of cl 19 is to ensure that, in granting approval to develop reserved land that is not owned by or vested in a public authority, the conditions imposed will protect, enhance further and ensure supremacy of the reserved purpose. So, in exercising its power to consider the application for development approval in respect of reserved land under the MRS, that is not owned by or vested in a public authority, on review, the Tribunal must consider whether it is necessary to impose conditions that preserve the supremacy of the reserve purpose. To the extent that conditions are not necessary for that purpose, the combination of cl 19 and 30(1) of the MRS text require that, at the very least, any conditions imposed do not frustrate and are not inconsistent with or prejudicial to the reserved purpose consistently with the decision in Caltex.
The MRS text does not define 'public authority'. Clause 3(2) of the MRS text provides that generally:
[A] word or expression used in this scheme has the same meaning as it has in the [PD Act].
Section 4(1) of the PD Act provides that the phrase 'public authority':
… means any of the following
(a)a Minister of the Crown in right of the State;
(b)a department of the Public Service, State trading concern, State instrumentality or State public utility;
(c)any other person or body, whether corporate or not, who or which, under the authority of a written law, administers or carries on for the benefit of the State, a social service or public utility[.]
The respondent's additional submissions do not address this issue. Reference is made to the judgment and reasons of Burt CJ in University of Western Australia v City Subiaco (1980) 52 LGRA 360 in which the issue was raised but not decided. The respondent's position is that the applicant does not fall within the definition of 'public authority' (paragraph 14 of respondent's supplementary submissions dated 11 April 2017). Given that submission, it is apparent from the above analysis that Div 2 of Pt II of the MRS text has no application in this matter and paragraphs 6 and 7 of RSIFC are irrelevant. While the respondent's concession made on 11 April 2011 is of assistance, the Tribunal must arrive at the correct decision on the law.
The only possible bases upon which it might be concluded that the applicant is a public authority is if it falls within the definition of 'State instrumentality' or within definition 4(1)(c) of the PD Act above.
The applicant is established pursuant to the University of Western Australia Act 1911 (WA) (UWA Act) and conducts itself pursuant to that Act. It is an Australian Higher Education Provider that is regulated by the Higher Education Support Act 2003 (Cth) and access to the applicant is regulated by Tertiary Education Quality and Standards Agency Act 2011 (Cth). There is no evidence that it administers or carries on any function 'for the benefit of the State' (In Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation[1992] HCA 53; (1992) 175 CLR 442) (Anti-Cancer), rather than for the benefit of the Commonwealth of States and Territories of Australia. There is no evidence that it conducts any form of 'social service' or 'public utility'. As such, the Tribunal concludes that the applicant does not fall within 4(1)(c) of the PD Act of the definition of 'public authority'. Further, for the reasons expressed in AntiCancer at [82], the Tribunal concludes that the applicant is not a State instrumentality. The mere fact that a statutory corporation is created and regulated by legislation does not render it a State instrumentality (AntiCancer). Accordingly, the Tribunal concludes that the applicant does not fall within category 4(1)(b) of the PD Act of the definition of 'public authority'. For these reasons, the Tribunal concludes on the evidence before it, that the applicant is not a 'public authority' within the meaning of that phrase as provided for by s 4 of the PD Act and as provided for in the MRS text.
Therefore cl 19 of the MRS text is relevant to this review in that the reserve purpose of Lot 2885 is not merely one of three factors to be considered pursuant to cl 30(1) of the MRS text, but is a pertinent factor in exercising the discretionary power conferred by cl 30(1) of the MRS text. In the Tribunal's view, the imposition of conditions if not necessary to preserve and ensure dominance of the reserve purpose must at least not frustrate, or be inconsistent with, or prejudicial, to the reserve purpose.
The applicant contends that (ASIFC paragraph 4.8):
It is uncontroversial that Conditions 8 and 9 are sought to be imposed for reasons unrelated to the purpose of Reserve 17331.
The respondent in its contention at paragraph 42 of the RSFIC states that:
… Pursuant to cl 30(1) of the MRS, in exercising that discretion and in the setting of conditions the Respondent (now the Tribunal) has to be satisfied, inter alia, that the Proposed Development:
(a)is consistent with the orderly and proper planning of the locality; and
(b)will preserve the amenity of the locality.
(Original Emphasis)
While the respondent has not omitted reference to the reserve purpose as a factor ('inter alia') it is apparent that the respondent does not consider it a pertinent factor when considering the exercise of the power conferred by cl 30(1) of the MRS text in this proceeding and contends that the other two factors referred to above are, or should be, the overarching focus in this review. The applicant, on the other hand, contends that there are three factors relevant in the exercise of the power conferred by cl 30(1) of the MRS text and disputes the assertion that the Tribunal must be 'satisfied' of any standards as contended by the respondent (ASIFC paragraph 4.3). The Tribunal agrees that there is no threshold standard that must be determined by the Tribunal in exercising the power conferred by cl 30(1) of the MRS text, before which the power to grant an approval can be exercised. What it must do is have regard to the three factors referred to:
a)the purpose for which Lot 2885 was reserved under the MRS in this case 'University' and the purpose for which Lot 13177 was reserved under the MRS parks and recreation;
b)the orderly and proper planning of the locality; and
c)the preservation of the amenities of the locality.
However, where cl 19 of the MRS text applies and where the imposition of a condition meets (c) and (d) above, the condition must not frustrate, or be inconsistent with, or prejudicial to, the MRS reserve purpose.
While the Tribunal rejects the contention that there is an express obligation on the decisionmaker to ensure that a minimum level of consistency is met in terms of orderly and proper planning principles and preservation of amenities, the Tribunal accepts that in balancing factors, the overarching objective of the MRS is that any decision will avoid, where possible, or minimise, at least, any anomalies in the orderly and proper planning of the locality and any reduction in the amenities of the locality. However, a condition that frustrates or is inconsistent with or prejudicial to the reserve purpose may not be one that can justifiably be imposed even though it might be consistent with orderly and proper planning of the locality and might operate to preserve the amenity of the locality. Because of the statutory supremacy of the MRS reservation purpose and the provisions of cl 19 and cl 30(1) of the MRS text, all other factors are required to yield to some extent to the reserve purpose in the case of a conflict.
There is no issue between the parties that the development of Lot 2885 for university student accommodation is consistent with the reserve purpose and in any event the Tribunal considers that it is, particularly having regard to s 15F of the UWA Act. There is no dispute between the parties that the minimal development on Lot 13177 is consistent with the MRS reserve purpose of that lot.
In considering the orderly and proper planning purpose of the locality and the preservation of the 'amenities' of the locality, the Tribunal must have 'due regard' to the various relevant State planning policies that 'may affect the matter of the application' (s 241(1) of the PD Act). These words have wide import and the Tribunal considers that the following policies are relevant:
a)Statement of Planning Policy No 1 State Planning Framework Policy (SPFP);
b)Statement of Planning Policy No 2 Environment and Natural Resources Policy (SPP2);
c)State Planning Policy 2.10 Swan-Canning River System (SPP2.10); and
d)Development Control Policy 1.2 Development Control general principles.
The SPFP directs decisionmakers to consider and be guided by the key stated principles, being, relevantly in this review, environment, community, economy and infrastructure to guide 'the way in which future planning decisions are made' (cl 2 of the SPFP). Clause 3(1)(a) of the SPFP directs that the:
The Commission and local governments must have due regard to the provisions that form part of [the SPFP] in … making decisions on planning matters.
The plans, policies and strategies that form part of the SPFP are listed in Part B of the SPFP (cl 4.1 SPFP). Part B of the SPFP refers to SPP2.
SPP2 relevantly provides:
•that it applies throughout Western Australia (cl 3);
•that its objectives (cl 4) include:
•to integrate environment and natural resource management with broader land use planning and decision making;
•to protect, conserve and enhance the natural environment; and
•to promote and assist in the wise and sustainable use and management of natural resources.
•for policy measures concerning water resources and landscapes relevant to this review (cl 5); and
•that decision makers should (cl 5.9);
(i)Identify and safeguard landscapes with high geological, geomorphological or ecological values, as well as those of aesthetic, cultural or historical value to the community, and encourage the restoration of those that are degraded.
(ii)[C]onsider the level or capacity of the landscape to absorb new activities and incorporate appropriate planning and building design and siting criteria to ensure that new development is consistent and sensitive to the character and quality of the landscape.
(iii)Consider the need for a landscape, cultural or visual impact assessment for land use or development proposals that may have a significant impact on sensitive landscapes.
•that it should be 'taken into account in planning decisionmaking, while acknowledging the inherent difficulty of balancing conflicting needs' (cl 6).
Although not mentioned in either SPFP (save for obliquely in Fig 1 by reference to the words 'and others …') or SPP2, SPP2.10 concerns the land in question (see Fig 1 thereto). SPP2.10 provides:
•That its objectives include (cl 4):
•ensuring that activities, land use and development maintain and enhance the health, amenity and landscape values of the Swan river, including its recreational and scenic values;
•providing a context for consistent and integrated planning and decision making in relation to the river.
•That it is based upon the following guiding principles:
•Social benefits and maintaining the river and its setting as a community resource (cl 7.1) and provides for recognition in development proposals that the river is a public resource and should be available to the community in perpetuity (cl 7.1.1).
•Social benefits securing public access to the river including:
•maintenance and enhancement of public access to the river but sensitive to the need of protection of the river (cl 7.1.3);
•avoidance of restrictions or negative impact on public views to or from the river, particularly from vantage points (cl 7.1.4);
•access to the river for recreational activities (cl 7.1.5).
•Social benefits maintaining a sense of place including:
•protection and enhancement of the distinctive character of any precinct of the river (cl 7.1.9).
•Cultural and natural heritage (clause 7.3):
•Design and Development – Promoting sensitive design and built form to complement the river landscape including:
•maintenance and enhancement of the quality and setting of the river (cl 7.4.1);
•the development's height, bulk, scale, form, orientation and location in the context of the setting by the river (cl 7.4.2);
•consistency of finishes of the proposed development with those in the vicinity (cl 7.4.3);
•consideration of the social, cultural, physical and historical setting of the river (cl 7.4.4).
•Design and development encouraging appropriate development including:
•Encouraging active recreation areas (cl 7.4.5);
•Improvement of public access to the river; public use and enjoyment of the river and improvement of the visual landscape and character of the river (cl 7.4.7).
•Design and development creating and maintaining foreshore reserves for public access, recreation and conservation.

The Tribunal notes that the land in issue falls within the Melville Waters description of the Swan River System Landscape Description reflected in cl 8.2 of SPP2.10 which is described in cl 8.2 to 'be notable for a number of … institutional and recreational landmarks' including the applicant, meaning the applicant's campus buildings on Lot 2885, and a number of names significant and notable yacht clubs.
Clause 8.2 of the SSP2.10 specifically deals with the Melville Waters area of the Swan River and cl 8.2.2 provides that 'Planning decisions in this area should':
•protect the river views;
•improve opportunities for public access and use of the river for, inter alia, recreational opportunities; and
•ensure that vegetation is integrated with development to minimise the contrast between the natural and built elements of the landscape and to ensure that ridgeline vegetation and its backdrop to the waterway is retained.
Clause 9 of SPP2.10 provides relevantly that the policy aims should be implemented when considering planning and development proposals.
SPFP in Part B provides for consideration of 'Operational Policies' and provides at B5 such policies:
are largely … development control policies which have been adopted by the Commission to guide its decision-making on … development applications.
Relevantly, DC1.2 concerns 'general principles' and provides by way of 'Background notes' that it 'states in plain terms the development approval requirements in respect of land the subject of … [MRS]' but acknowledges that the 'primary development control instrument' in this case is the MRS. Again the Tribunal notes the acknowledged statutory supremacy of the MRS reserved purpose. Relevantly, it provides that:
a)it applies to areas covered by the MRS;
b)it reflects the policies of the SPFP;
c)its express objectives include:
i)to protect the 'integrity and purpose' of reservations made under the MRS;
ii)to ensure development is in accordance with 'sound planning principles';
iii)to promote development that achieves community standards of amenity;
iv)to ensure development is siteresponsive, enhances local identity and character and is wellconnected to the adjacent neighbourhood;
v)to facilitate land uses that provide choice and variety; and
vi)to ensure that conditions improve the quality and consistency of development approvals.
d)the respodent will have regard to:
i)compatibility with relevant planning policies, strategies and development control criteria;
ii)integration into the site and its surroundings;
iii)transport and traffic impacts;
iv)vehicular and non-vehicular access, circulation and car parking;
v)'relevant' environmental, economic and social factors; and
vi)'relevant' factors of amenity;
e)the respondent may impose conditions on development approvals to 'ensure orderly and proper planning' and 'proper standards of development';
f)the respondent will have regard to the general principles in imposing conditions that:
i)have a relevant planning purpose;
ii)have relevance to the development to be approved; and
iii)are fair, reasonable and practicable.
g)the policy measures include:
i)the 'principal' objective to ensure that that the reserved land is developed for its intended purpose and is not prejudiced by the development application, again acknowledging the supremacy of the MRS reservation; and
ii)in determining development applications concerning land abutting land reserved for parks and recreation the decisionmaker should consider 'matters such as visual domination or intrusion of the development on the reservation, the implications of any increase in utilisation of the reservation and the physical effects it might have on the reservation'.
h)it expressly acknowledges again that the respondent is obliged by the MRS to 'have regard to the purpose for which the land is reserved, the orderly and proper planning of the locality and the preservation of the amenities of the locality' which is a reference, in substance, to cl 30(1) of the MRS.
Although SPP2 and SSP2.10 do not expressly deal with land reserved for parks and recreations in the areas covered by them, the policy requirement of DC1.2 in effect, is that the parks and recreation purpose of land abutting the proposed development not be frustrated, or jeopardised.
In this review, the relevant section of the MBFR does not abut Lot 2885. Nonetheless, it is in very close proximity to Lot 2885 and the intention of policy measures identified in (g) above is to avoid visual and practical development restrictions on any parks and recreation reserve nearby. Further, the Tribunal recognises that Lot 2885 abuts Lot 13177, which is the subject of a parks and recreation reserve pursuant to the MRS. The use to which Lot 13177 has been put to date does not frustrate or jeopardise the parks and recreation reserve purpose, but rather serves to facilitate vehicular access to the MBFR by the public, consistently with the policy objectives referred to above. This was not in issue before the Tribunal.
From this analysis the Tribunal concludes that, in this review:
a)the overarching limitation on the Forrest Hall development is that it must be consistent with or in furtherance of the reserved purpose (public purpose University) of Lot 2885;
b)the development must at the very least not frustrate or jeopardise the parks and recreation purpose imposed on Lot 13177 and the MBFR, although the latter does not abut Lot 2885; and
c)the same considerations apply in determining whether the grant of approval should be subject to the imposition of any particular conditions.
This is not to discount the need for consideration of the ordinary and proper planning of the locality and preservation of the amenities of the locality under which the specific matters and considerations referred to in SPFP, SSP2 and SSP2.10 fall. Together the relevant policy statements referred to above require that the decision maker strive to achieve an outcome that minimises anomalies in the orderly and proper planning of the locality and preserves the amenities of the locality at the very least, but, in the case of the Melville waters area, the decisionmaker should strive to achieve an outcome:
a)that constitutes an enhancement of amenities of the locality;
b)that maintains or enhances public access to the MBFR for recreational activities;
c)where the height, bulk, scale, orientation and location of any built form does not impinge on any of the policy aims detrimentally; and
d)where the landscaping between the proposed built form and the MBFR is harmonious or at least not detrimental to the MBFR;
but always without prejudice to the MRS reserve purpose of the development site.
In this review, when considering the ordinary and proper planning of this locality and the preservation of the amenities of this locality, it should not be forgotten that at all times Lot 2885 was impressed with a public purpose reserve pursuant to the MRS; as the subject of the Crown lease is only capable of being used by the applicant to accommodate the main university buildings and that the oldest of the university campus buildings predate all other development in the immediate relevant locality, which is recognised as landmark by the policy statement referred to in cl 8.2 of SPP2.10. This degree of consistency is the essential element of the orderly and proper planning of the locality.
The RB page 479 ff include a number of additional policies:
•State Planning Policy 4.2 Activity Centres for Perth and Peel
•State Planning Policy 5.4 Road and Rail Transport Noise and Freight Considerations in Land Use Planning
•Draft State Planning Policy 7 Design of the Built Environment
•Development Control Policy 1.1 Subdivision of Land General Principles
•Development Control Policy 1.4 Functional Road Classification for Planning
none of which have been referred to by the parties in this review.

Orderly and proper planning

The parties agree that the meaning of this phrase, for the purposes of this review is as stated by Pritchard J in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226. Further:
[P]lanning [authority] permits, if not requires, regard to be had to the full history of the site and the existing situation … in the context of [the] proposed development without any artificial limitations on that task[.]
(D'Orazio Enterprises Pty Ltd and City of Stirling [2016] WASAT 99).
Indeed the statutory framework calls for a consideration of the relevant historical setting of the site (SPP2.10 cl 7.4.4). The imposition of a condition to to give effect to an historical commitment, if found on the facts to exist, might have a valid planning purpose (Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; 221 CLR 30 (Temwood) at [66]). The relevant history must pertain to the locality of the Forrest Hall development and its surrounds and it must be complete.
In this review, the following allegations of fact are asserted by the respondent concerning the history of the development site and the MBFR (RSIFC paragraphs 35 and 36):
a)The respondent's allegation of an agreement, promise or undertaking that at all times the applicant would permit vehicular access to and egress from all points of CP23 near the MBFR or at least three points as follows:
1)one to the UWA boatshed (UWA boatshed) lease area within the MBFR (access 1);
2)one to the Perth Dinghy Sailing Club (PDSC) lease area within the MBFR (access 2); and
3)one close to the northeastern most tip of Lot 2885 near the Cygnet Hall lease area within the MBFR (alleged access 3).
b)The respondent's allegation that after the 1950s the head lessee of Cygnet Hall (the Governors of Hale School (Hale)) and its invitees, gained access to Cygnet Hall from CP23 via alleged access 3; and
c)The respondent's allegation that for some considerable period of time the PDSC and invitees thereof have accessed, and that it has been necessary to access, the PDSC lease area and the MBFR near Cygnet Hall from CP23 via alleged access 3.
The respondent asserts that uninterrupted access to the MBFR from CP23 'at any point' comprises 'an important part of the existing amenity' (see RSIFC paragraph 51). The respondent advanced the case that a hard surface publicly available vehicular access way the full length of CP23 with a right to determine unrestricted vehicular access at every point along that access way to the MBFR constitutes an existing amenity of the locality that justifies that such an access way dictates the orderly and proper planning of the locality (RSIFC paragraphs 25, 51, 60 and 61). The respondent asserts that the justification arises by way of an agreement, promise or undertaking or a long standing history use of the same. The respondent asserts, at paragraph 60 of RSIFC, that:
It is not appropriate for the [applicant] to now dictate where the access is to be provided into the [MBFR] and by so doing exclude direct access to a portion of the [MBFR]).
It is the respondent's intention that conditions 8 and 9 would operate so that a 3 metre wide vehicular access way within Lot 2885 abutting the 3 metre wide Water reserve (see below), together accommodate a 6 metre wide, hard surface, and a twoway vehicular path the full length of CP23. This is what would meet with the respondent's 'satisfaction' which is an express requirement of condition 8. This would result in a 6 metre wide access way for vehicular traffic abutting the external wall of the Forrest Hall development, which is intended for residential accommodation. Conditions 8 and 9 would therefore accommodate access to the MBFR from access 1 and access 2 and alleged access 3 from CP23 and over the Water reserve. However, conditions 8 and 9 would not restrain the points of access to the MBFR to those points as the respondent clearly asserts the right to have the access from CP23 at the discretion of a third party, presumably Department of Parks and Wildlife (DPaW), at every point along the proposed vehicular path way. That latter point is unsupported by any historical evidence of use and the respondent has not advanced any such evidence. That latter point, therefore, could only be supported on the basis of the alleged agreement, promise or undertaking.
As to condition 5 the respondent asserts that the reduction in available public parking bays on CP23 will impact on the sailing and rowing operations conducted on the section of the MBFR nearest CP23. This, it is said, will not preserve the amenity of the locality. Unlike conditions 8 and 9, the respondent does not advance any particular case to justify why condition 5 serves the preservation or enhancement of the amenity of the locality, apart from the fact that various groups of users have used CP23.

Advice notes and review of the same

There is no jurisdiction conferred on the Tribunal to review an advice note (Empire Securities Pty Ltd and Ors and WAPC [2005] WASAT 98 at [78] to [79] (Empire Securities); St Patricks Community Support Centre and City of Fremantle [2007] WASAT 318 (St Patricks). If advice notes identify material requirements of a development that must be complied with, such requirements should be made conditions of the grant of approval of the development in order to have any legally compelling impact (Empire Securities; St Patricks). The respondent's advice notes do not form part of the conditional approval of the review decision and accordingly are not reviewable and not binding.

Conditions and the imposition

Clause 30(1) of the MRS text expressly confers power on the decisionmaker to impose conditions. In imposing conditions the Tribunal concludes that the decisionmaker must have regard to the factors identified in cl 30(1) of the MRS text, but also must have regard to cl 19 of the MRS text with a view to the MRS reserve purpose being the primary focus. As to conditions generally, a condition, must be imposed in good faith (Reid v Western Australian Planning Commission [2016] WASCA 181 (Reid)). The condition must be imposed pursuant to a planning purpose derived from the relevant legislative framework including relevant policies and it must be crafted to actually advance that purpose (Temwood at [57] [58]). A condition must reasonably relate to the development (Temwood) and the decision to impose the condition must not be unreasonable in the Wednesbury sense (Temwood).
Therefore, in each instance there must be a factual basis for the planning purpose that is connected with the development that supports the imposition of the condition for a relevant planning purpose drawing from the legislative scheme (Reid). If a condition meets that general criterion, the fact that it produces ancillary benefits or general public benefits that do not relate to the development is inconsequential. In this review, the fact that conditions may, or do, benefit third parties or the public at large does not of itself render the conditions as having an ulterior purpose or render them unrelated to the development. On the facts of this case conditions 5, 8 and 9 arguably serve a planning purpose, but the question is whether the conditions relate fairly and reasonably to the development in the sense that they arise directly from the development. This can be determined by an analysis of the impact the Forrest Hall development has on current parking availability for a range of visitors to the applicant's campus and the MBFR, and on the current means by which the relevant section of the MBFR is accessed by invitees of the tenants and the public.
Given the Tribunal's orders, it is not necessary for the Tribunal to deal with the ground that the conditions under review are ambulatory, save to say that the applicant makes no objection to certain outcomes being to the satisfaction of the respondent where the minutiae of the expressed and identified condition must be finalised at a later time (South of Perth Yacht Club (Inc) v Jacob MLA [2016] WASC 160 at [52] and cases sited therein).

Issues

The following issues arise:
a)Whether the applicant agreed, promised or gave an undertaking that it would maintain the road seal of the old Hackett Drive and vehicular access to the MBFR at all points along that sealed section or at least at access 1, 2 and alleged access 3? On the evidence, the Tribunal concludes that the answer to this question is 'No'.
b)Whether alleged access 3 has been used since the 1950s, 1980s or other period and the nature of that use? On the evidence the Tribunal concludes that:
i)there has been vehicular use of alleged access 3 in the periods from after 1983 to about 1986 and about 2004 to 2014, but not after about 1986 to about 1995;
ii)the use is occasional and largely by the officers and invitees of DPaW and its current subtenants, Nature Play (WA) Inc and not substantially, or at all, by invitees of Hale or the PDSC; and
iii)there is no use of alleged access 3 by drivers towing a trailer of rowing sculls or drivers of 21 seater buses.
c)What use is made of CP23 by invitees of the PDSC and Cygnet Hall? The use of CP23 by the invitees of the PDSC and Cygnet Hall is limited largely to certain Saturdays during the period of the clash in rowing and sailing seasons between October and March at approximately 3 pm for a very short duration, while rowing sculls are returned for storage at Cygnet Hall.
d)Whether condition 5 meets the planning purposes identified by cl 30(1) of the MRS text and the statutory framework on the facts? For the reasons referred to there is no planning basis to impose condition 5 on the facts of this matter, notwithstanding that car parking generally is a planning issue.
e)Whether conditions 8 and 9 meet the planning purposes identified by cl 30(1) of the MRS text on the facts? For the reasons referred to below there is a factually supported planning purpose requiring the imposition of an access way from Hackett Drive to CP23 and Forrest Hall on Lot 2885 and to the MBFR nearby and to have such an access way recognised on the relevant titles. However, on the facts of this matter, the Tribunal is of the view that conditions 8 and 9 exceed what is required and adequate to meet the planning purposes and the correct and preferable decision is to impose different conditions on the applicant's grant of approval.

Evidence and findings

Alleged agreement, promise or undertaking

The Crown land CT sketch of Lot 2885 (RB page 96) does not show any change to the land that was originally granted to the applicant pursuant to the Crown lease. There were, however, changes to the demised land and the land comprised in Lot 2885. The respondent asserts that in the late 1960s the State government realigned Hackett Drive to provide for an alternative T junction/intersection of Hackett Drive and Stirling Highway/Mounts Bay Road (RSIFC paragraphs 24 to 29).
In the Tribunal's view, the aerial image of this area in 1953 (AB page 101 and Exhibit 22) most accurately depicts the junction of Hackett Drive and the then Fremantle Road as at the time of the demise. It can be seen from the 1953 image that the then Hackett Drive was positioned between the boundaries of Lot 2885 and the MBFR. Lot 2885 therefore did not abut the MBFR but was separated from the MBFR by Hackett Drive.
In the applicant's letter to the Secretary of Main Roads Department of Western Australia (Main Roads) dated 3 May 1978 (RB page 341), the applicant states that the redirection and realignment of Hackett Drive had occurred in 1964. The aerial image taken in 1965 (AB page 102, RB page 400 and Exhibit 22) does not depict such a change when compared to the 1953 image. The aerial image in 1974 (AB page 103 and Exhibit 22), however, depicts that the redirection and realignment of Hackett Drive had occurred by 1974. It is recorded in the letter dated 29 June 1977 (RB page 332) that some 5869m² of the land comprised in Lot 2885 was appropriated by Main Roads for the purpose of realigning Hackett Drive westward in the manner identified in the 1974 image and as depicted in the sketch provided by Main Roads (RB page 334) attached to the letter dated 29 June 1977. As a result of the realignment, Hackett Drive was no longer positioned between Lot 2885 and MBFR, but across Lot 2885 dissecting Lot 2885 at the northeastern section. The smaller dissected portion of Lot 2885 abutting old Hackett Drive was intended by Main Roads to continue as part of Lot 2885 and the Crown lease (refer: vinculum on sketch RB page 334). It appears nothing was done at the time of the realignment to formalise these changes.

The respondent sought to establish that there was a certain and enduring obligation on the applicant, by way of an agreement, promise or undertaking, to ensure at all times that, whatever use it made of Lot 2885, the entire length of the sealed section of old Hackett Drive would be preserved and available for access to the MBFR into the future. The respondent asserted that the correspondence before the Tribunal comprised that agreement, promise or undertaking (RB pages 332 to 344; RSIFC paragraph 30). On the documents, the Tribunal concludes that there is no such agreement, promise or undertaking.
Alternatively, the respondent sought to establish that there was an agreement, promise or undertaking whereby the applicant was bound to preserve and make alleged access 3 available, which would require a vehicular access way the full length of CP23. The respondent relied upon the same documents as above. On those documents, and indeed on all of the documents before the Tribunal, it concludes that there is no such agreement, promise or undertaking.
Originally Main Roads wrote to the applicant and proposed that, in principle, some 4000m² of land comprised in the old Hackett Drive reserve would be transferred or vested in the applicant (see RB page 334). Reading the letters at RB pages 332 to 344, along with the letters at AB pages 87 to 100 the physical realignment of Hackett Drive and the formalisation of the physical realignment took some considerable period of time and it was not until 27 August 1979 that the State of Western Australia certified that it vested 3207m² of land, comprised within the old Hackett Drive reserve, in the applicant by incorporating that 3207m² into Lot 2885 (RB page 99).
Therefore, the originally mooted approximate 4000m² of land comprising the old Hackett Drive reserve was not all vested in the applicant, but rather a smaller area thereof was vested in the applicant. What was excluded from the proposed approximate 4000m² was a 3 metre wide strip running the length of old Hackett Drive that was instead vested in the then Water Board, being Reserve 36255 (Water reserve), (RB page 99) as explained in the letters and sketches at AB pages 97, 88, 90 and 91. The Water reserve is interposed between what was vested in the applicant and the MBFR. That 3 metre wide strip may have obviated the need for any agreement with the applicant concerning access to the MBFR. This may be the explanation for there being no evidence before the Tribunal concerning whether there was an agreement between the applicant and the State of Western Australia, pursuant to which the 3702m² was vested in the applicant and, if there was such an agreement, what its terms are. The certificate of vesting at RB page 99 represents what actually occurred on 27 August 1979. The mooted transfer referred to in the 1977 and 1978 correspondence did not come to pass. There is no evidence that links that correspondence concerning a different mooted vesting and what actually occurred.
As a result of the vesting (RB page 99) on 27 August 1979, the 3207m² of old Hackett Drive was vested in the applicant and incorporated into Lot 2885, and made subject of the same reserve purpose as the balance of Lot 2885 (AB page 138 showing the closure of the original Hackett Drive hachured and reference to application H824537 at AB page 130).
It should be noted that at no time has the Tribunal heard from, or had before it, any contention or statement of fact from the current incarnation of Main Roads concerning this issue. To the extent that the respondent asserts some form of carry over obligation on the applicant arising from the correspondence in 1977 and 1978 concerning the mooted 4000m² vesting, the Tribunal finds the following facts and events on the balance of probabilities.
A section of Hackett Drive where it terminated at the junction of the Fremantle Road was realigned westward between about 1965 and 1974 as referred to above. The applicant lost 5869m² of land within Lot 2885 and, in so doing, splintered Lot 2885 in to two sections. The old Hackett Drive continued in use until sometime after 1979 and accommodated access to:
a) the MBFR;
b)the Water Board and sewage pumping station positioned on the MBFR;
c)the Water Board services within the Hackett Drive reserve;
d)via access 1, the UWA boatshed lease area within the MBFR;
e)via access 2, the PDSC lease area within the MBFR; and
f)via access 2 and a driveway through the PDSC lease area, the Cygnet Hall lease area.
Main Roads wrote to the applicant on 29 June 1977 and proposed that 5869m² of land be excised from Lot 2885 and the applicant's Crown lease; old Hackett Drive be closed and approximately 4000m² of land comprised of the old Hackett Drive reserve, be incorporated into Lot 2885.
In the letter of 29 June 1977, Main Roads stated:
1.There should be no objection to this providing that the existing road pavement within this area was maintained by the University to provide access to the Metropolitan Water Supply Sewerage and Drainage Board sewerage pumping station and the other facilities on Reserve 17375 under the control of the National Parks Board.
2.There are also other existing public utilities within this road reserve which would have to be protected by easements until the end of their useful life or until they are relocated at the expense of the University.
3.An assurance to the various bodies and authorities that these items and uses would be respected and protected would assist in obtaining a closure of the road.
The sketch attached to that letter, drawing 7621-202-1 (RB page 334) depicts the interruption to the Crown lease and Lot 2885 caused by the realignment of Hackett Drive.
The applicant's architect responded by letter dated 20 October 1977, which response did not constitute an unequivocal acceptance of the terms of the proposal referred to in the letter of 29 June 1977. On the contrary, the applicant's architect states:
As a result the Senate has indicated its willingness to accept your proposal, subject to the conditions which you outlined and one other, and in the following terms:
(a)The University is prepared to maintain the existing road pavement within the area to provide access to public authority facilities on the adjoining land under the control of the National Parks Board as set out in your department's letter;
(b)The University is agreeable to the protection by appropriate easements of other existing public utilities within this area under the terms outlined in your letter; and
(c)As the value of the land to the University would be considerably less if the University was unable to develop it in conjunction with the adjoining University land for parking and landscaping the University must be satisfied that this development will be possible before committing itself to the proposed agreement.
The letter from the applicant attaches two sketches (RB page 337 and 338). The applicant's sketches very clearly indicate that the land that the applicant believed was to be transferred to it comprised the whole of the old Hackett Drive reserve and abutted the sewage pumping station (refer: red markings at RB page 337 and note 'ASSUMED BOUNDARY (FENCE LINE)' abutting the sewerage pumping station). RB page 338 notes the proposed driveway for the proposed car park is 'existing road' and it is well within the line corresponding to the land within the 'ASSUMED BOUNDARY (FENCE LINE)' at RB page 337.
The Tribunal is satisfied, on the balance of probabilities, that as at the date of the letter, 20 October 1977, the applicant contemplated that Main Roads would transfer to it an area of land that was wider than the sealed section of old Hackett Drive, and which abutted the sewage pumping station positioned on the MBFR, and in all probability measured approximately 4000m².
The drawings attached to the applicant's letter of 20 October 1977 at RB pages 337 and 338 depict the then proposed CP23 with only two access and egress points to the MBFR (access 1 and 2). There is no provision for alleged access 3. At the northeastern tip of Lot 2885 on RB page 337 the words '5 car bays' are written and on RB page 338 there are five car bays marked out perpendicular to the end of old Hackett Road so as to prevent any possibility of alleged access 3.
Main Roads put the applicant's proposal referred to in the letter of 20 October 1977 and RB pages 337 and 338 to the Director of the National Parks Authority by letter dated 30 December 1977 (RB page 339) with the assurance that:
The proposed closure of the original road reserve will not affect the physical access to the foreshore reserve under your control since, as you will see from an examination of the drawings, it is intended to maintain the existing road pavement along this boundary to provide access not only to the planned car park but to the boat sheds, the sewer pump station and, of course, the foreshore.
In holiday periods the car park will provide an additional facility for members of the public using the foreshore reserve.
There is no evidence that this letter was provided to the applicant. The assurance given by Main Roads, in the Tribunal's view, could be construed to somewhat overstate the applicant's actual proposal (although the Tribunal notes that the drawings at RB pages 334, 337 and 338 were enclosed in that letter).
On 24 April 1978 the then President of the National Parks Authority of Western Australia wrote to the then Minister for Fisheries and Wildlife about the matter at hand. In that letter the President made reference to Main Roads' drawing 7721-66-1 and stated that '… of all the Main Roads Department plans referred to the National Parks Authority, the latest (7721-66-1) encroaches least on the foreshore and for that reason it would be favoured over earlier proposals' (RB page 340). That drawing is not before the Tribunal. The Tribunal infers it is a different drawing to either Main Roads' drawing 7621-202-1, or RB pages 337 and 338.
The Tribunal finds that, as at 20 October 1977, the applicant had no intention of permitting any access to MBFR other than access 1 and 2, even if it were to have the whole of the old Hackett Drive reserve transferred to it and made that clear to Main Roads. The correspondence and sketches at this stage of the history do not support the respondent's allegation of an agreement, promise or undertaking, or indeed any obligation at all for uninterrupted access along the whole length of the proposed boundary with the MBFR, or at alleged access 3.
On 3 May 1978 (RB page 341), the applicant wrote to Main Roads and referred to the letters of 29 June and 20 October 1977 referred to above:
… and subsequent correspondence from your Department concerning a proposed adjustment of the University's title boundary in the above location as compensation for the loss of University land required to construct a new junction between Hackett Drive and Mounts Bay Road in 1964.
The letter of 3 May 1978 refers to letters dated 27 April and 10 January 1978. Neither of these letters is before the Tribunal. The contents of the letter dated 27 April 1978 is critical to the comprehension of the writer's intent. The applicant's letter of 3 May 1978 does not comprise an unreserved and unequivocal acceptance of Main Roads' proposal of 29 June 1977 and, in terms, states 'it is now possible for me to confirm the University's acceptance of your proposal of June last year, within the general terms set out in the University's Architect's letter of October but with one variation relating to the Metropolitan Water Supply, Sewage & Drainage Board water main'. The letter explains the 'one variation ... ' and what it's agreed position was:
The University is prepared to maintain the existing road paving within the area to provide access to the M.W.S & D.B sewerage pumping station and other facilities on Reserve 17375 under the control of the National Parks Board.
…
The University is agreeable to the protection by appropriate easements of other existing public utilities within a present road reserve until the end of their useful life, or until they may be relocated following appropriate agreement between the University and the relevant authority[.]
The applicant notes the relevant authorities to be 'State Energy Commission' and 'Telecom Australia'.
The applicant also notes in that letter that the Water Board:
… requires that a reserve be maintained over the water main, although this reservation will allow the University surface rights over the area of the reserve.
In a letter from the applicant to the Secretary of the National Parks Authority of WA dated 4 May 1978, the applicant does not provide an enduring commitment to maintain the sealed section of old Hackett Drive as alleged, but rather the contrary. That letter states:
Our development will take the form illustrated on our Drawing No. 831/777, [RB338] … We do not plan to interfere at all at this stage with the sealed road surface on the land under transfer or on the ground between the seal and your boundary and will ensure that the existing points of access to the foreshore land will remain unaffected during the site works.
This letter more than any other indicates that as at 4 May 1978 there were two access points to the MBFR from old Hackett Drive in existence, as depicted in the RB page 338, being access 1 and 2 only. Further, there is no reference by the applicant to alleged access 3. The letter dispels any possibility of enduring uninterrupted access to the MBFR at all points of the sealed section of old Hackett Drive because of the express reference to the 'existing points of access' meaning access 1 and 2. Further, the then contemplated proposal for maintenance of the sealed section of old Hackett Drive was limited to 'at this stage' and in the context of the reference to RB page 338, the Tribunal interprets that to mean while the land is used as a carpark.
By letters dated 11 June and 28 August 1979 (AB pages 87 91) over a year later from the State Under Secretary of Lands to the applicant, the State Under Secretary clarified that the area now comprised in the Water reserve from within the old Hackett Drive would not be vested in the applicant.
On 27 August 1979 (RB page 99) the Under Secretary of Lands certified that:
… by an Oder in Council dated August 22, 1979 issued under Section 118A(2) of the [Land Act], the land delineated and coloured green on the plan hereunder was declared to be vested by way of exchange and without any other consideration in [the applicant] … the owner of the adjoining land [Lot 2885] … as registered in Crown Lease No 1455/1921 … in lieu of land resumed therefrom for road purposes for an estate or interest similar to that held by it in the said location to form portion of and be incorporated in such location.
The land represented by the colour green is the 3207m² that was vested in the applicant and included in the Crown lease.
There is nothing before the Tribunal to suggest any agreement, promise or undertaking was required for access to the MBFR from that portion of old Hackett Drive reserve that was vested in the applicant. On the face of it, access to the MBFR was a matter that concerned the Water Board and the National Parks Board in respect of the Water reserve.
The Tribunal notes that the respondent's assertion (RSIFC paragraph 25) that the Hackett Drive realignment was the result solely of the applicant's concerns about the safety of the junction of old Hackett Drive and Mounts Bay Road, is without any evidential foundation. A reference in the letter dated 29 June 1977 (RB page 332) to the ability of Main Roads to incorporate a left turning lane onto Stirling Highway from the newly aligned Hackett Drive and the applicant's request for the same, does not mean, and in its context could not be construed to suggest, that the applicant was obliged to make good access to and egress from every point of old Hackett Drive near the MBFR or alleged access 3 into the future.
After 1979, the development of Lot 2885 as CP23 was approved. The applicant catered for access 1 and 2 from the driveway within CP23 over the Water reserve as indicated on Exhibit 8. This is evident from the images referred to below. This differs from the plan for CP23 at RB page 338 because of the imposition of the Water reserve between Lot 2885 and the MBFR and the change to the boundary.
Consequently, the Tribunal finds the various allegations of an agreement, promise, undertaking or other form of obligation to maintain the sealed section of old Hackett Drive indefinitely for access to the MBFR at all points along the MBFR or alleged access 3 (RSIFC paragraphs 25, 30 37, 57(a) and 57(c), 58, 59 and 60) are not proved on the documents. The Tribunal finds that the facts concerning the vesting in the applicant of the agreed 3207m² of land forming part of old Hackett Drive are, on the evidence before the Tribunal, as stated above. The documents relied upon at RB pages 332 344 are not relevant because they refer to a proposal that did not eventuate and, on all of the facts, they do not constitute any agreement, premise or undertaking that carried over from that proposal.
The respondent does not refer to, or rely upon, documents from any other periods in the history of the locality to support any of its contentions. However, the RB contains documents that do refer to subsequent historical events concerning this locality that are relevant, in the Tribunal's view, to whether there was an agreement, promise or undertaking of the kind advanced by the respondent.
In 1995, a proposal was advanced by the applicant to develop the UWA boatshed lease as a water sports building, with ramps and a small carpark, and to redefine CP23 'to include the portion of triangular land once forming the access lane' (RB page 345). This later statement is a reference to the incorporation of Lot 13177 as part of CP23 which, as stated above, was formally incorporated into the Crown lease on 29 February 2000. In a letter dated 10 October 1995 (RB page 345) to, amongst others, Department of Conservation and Land Management (CALM) (a predecessor for present purposes to DPaW), the applicant's architect attached a sketch (sketch option 4 at RB page 347) which provided for some set down and parking options for the invitees of the PDSC and Hale. In the letter, the applicant's architect stated that sketch option 4 provided for:
… offpeak bus bays, boat/trailer bays, and an indication is given of CALM's wish to look at its own entry or entries to Cygnet Hall.
Sketch option 4 depicts access 1 into the UWA boatshed lease area and access 2 into the PDSC lease area. Sketch option 4 also notes:
CALM CONSIDERING NEW OR TWO ACCESS SYSTEM
adjacent to access 2 and a proposed additional driveway just immediately north of access 2. This new driveway would permit vehicular access from CP23 at access 2 to the PDSC lease, with a right hand turn into another driveway within the PDSC lease and further right hand turn onto the proposed additional driveway from the PDSC lease area alighting onto CP23, almost like a roundabout. It also allows for access within the PDSC leas to the Cygnett Hall lease and the northeastern tip of the MBFR. Alternatively, the proposed driveway could operate as more direct access from CP23 to the Cygnet Hall lease and the northeastern tip of the MBFR, but still via the PDSC lease area. The sketch does not propose alleged access 3. On the contrary, the sketch notes the intention to 'close off bike access' at the northern most tip of CP23 precisely at the point of alleged access 3. The applicant's architect states in the accompanying letter of 10 October 1995 that:
CALM/UWA's preferred bike path route is shown circumnavigating cp23, and following Mounts Bay Road/Hackett Drive in its new alignment. … The old route across the back of … cp23 is shown closed off at the northern end (but available for pedestrians), and I will send the proposal to BikeWest for their comments.

By an extension of lease dated 12 July 2011 (Exhibit 14B) the Cygnet Hall lease was extended to 16 November 2015. The extension of lease does not vary any terms of the original lease (Exhibit 14A). By letter dated 9 April 2015 and executed by the Director of Finance and Governance of Hale (Exhibit 14C), the terms of the lease was again extended to 16 November 2025. There are no material variations to the terms of the lease. The Tribunal notes that the extension does not follow the format provided for by DC 5.3 and there is no information concerning the approval of this further extension of the sublease.
By sublease executed 15 March 2001 (Exhibit 15A) Hale sublet the first floor of Cygnet Hall to DPaW's predecessor for over nine years from 17 November 1994. Clause 9.01 provides that the terms of the head lease are to apply generally to the sublease. By an extension of sublease dated 12 July 2011 (Exhibit 15B), the sublease was extended by 11 years from 17 November 2004. By letter dated 9 April 2015 from DPAW to Hale and signed by the Director of Finance and Governance of Hale on 8 July 2015, DPaW and Hale agreed to a further extension of the sublease to 15 November 2025 on similar terms to the original sublease (Exhibit 15A).
By a further Deed of Sub-Lease dated 25 November 2015, DPaW further subleased the first floor of Cygnet Hall to Nature Play (WA) Inc with Hale's consent until 31 December 2021 (Exhibit 16). The Tribunal notes that the further sublease does not follow the format provided for by DC 5.3 and there is no information concerning the approval of the further sublease.
Save for the period around 1995 - 2004, the evidence of occupation of Cygnet Hall during the America's Cup period and by DPaW pursuant to a sublease in 1995, and its subtenant after 2013, coincides with the images of the track and alleged access 3 in the 1985 image and the 2004, 2014 and 2016 images, but not the lack of use in the 1995 image.
The Tribunal infers that in all probability the car parking and possible use of the track and alleged access 3 was attributable to DPaW invitees while it occupied Cygnet Hall and its subsequent sub-tenant, Nature Play (WA) Inc after 2013 save for a period of nonuse in, or about, 1995 2004. In further support of this inference, the Tribunal observes that on the Tribunal's view, signage had been installed directing that certain areas were designated for DPaW parking and certain areas were designated for Nature Play (WA) Inc parking. Mr Brabazon stated that the signage had only recently been installed but he had no knowledge concerning why, or how, it had come about. Mr Brabazon conceded that the parking signage was either installed by or with the knowledge of DPaW.
Accordingly, for these reasons, the Tribunal finds that the northern area of MBFR near Cygnet Hall was largely used by a subtenant (DPaW and Nature Play (WA) Inc) of part of Cygnet Hall along with its invitees for parking during operation of the subtenants' activities. To that extent, the Tribunal finds that alleged access 3 and the track were probably used by DPaW's invitees and those of its subtenant to gain more direct access to parking on the MBFR with DPaW's knowledge and consent. On the evidence, the Tribunal concludes that more probably than not the vehicular access at alleged access 3 was more occasional and less frequent than the use of access 1 and 2, because alleged access 3 and the track were was not sealed. However, the Tribunal is not persuaded that alleged access 3 ever experienced coincidental twoway traffic use because of its dimensions and is not persuaded that it experienced significant use at all. First, because the MBFR parking area is not capable of accommodating many vehicles and secondly, because Mr Brabazon stated the limestone base would not have been adequate for frequent vehicular use, given its gradient and, in all likelihood, would have needed to have been relaid a number of times given its gradient in any event (T:43; 9.12.16). There is no explanation in the evidence why DPaW caused or permitted alleged access 3 and the track to develop for the periods referred to. However, the Tribunal finds that there is no evidence they were developed pursuant to any orderly or proper planning purpose or objective.
On the evidence referred to below there is no coincidence of parking needs or demands between DPaW's or Nature Play (WA) Inc's weekday activities as a subtenant and that of Hale or other schools (early mornings and at limited times on certain Saturday afternoons at about 3 pm) and the PDSC (on certain Saturdays and afternoons in particular).

Evidence of recent and current use of CP23 and impact of the Forrest Hall development

There is no dispute that CP23 has been in use as a carpark since some time in 1979. The evidence before the Tribunal is that CP23 accommodated 270 car parking bays and the Forrest Hall development would result in the reduction of bays to 134 (Exhibit 5 witness statement Mr Riley; AB page 52 Jacobs' transport statement dated 28 August 2015; Exhibit 10 paragraph 22 Mr McMullen statement paragraph 22; Exhibit 7 paragraph 5 McMullen/Riley joint statement), 39 of which are dedicated to the residents and invitees of residents of Forrest Hall development (AB page 52). The 39 bays for exclusive use by Forrest Hall development residents and their invitees are to be constructed on CP23 but underneath proposed Forrest Hall. The evidence of Mr Riley is that there will be 115 car bays. Counsel for the applicant conceded, however, it was likely to be 103 car bays (T:65; 8.12.16; T:74; 9.12.16). Therefore the proposed reconfigured and much reduced CP23 shall accommodate 103 car bays currently intended by the applicant for public parking. The reduction of car bays in CP23 will have no impact on the Forrest Hall development and its residents, the car parking for which is catered for underneath the building. There is no dispute about this (T:65; 8.12.16).
Given the Tribunal's conclusions above concerning the use of CP23 and alleged access 3 by invitees of the PDSC and Cygnet Hall, the Tribunal concludes that there is no cogent and reliable evidence to support a finding that the reduction in car bays within CP23 will have any impact on the operations of the MBFR tenants and the recreational activities conduced from their leases.
Whilst there is evidence that car parking at the applicant's Crawley campus is restricted to 4,250 bays (AB page 52) there is no evidence of the exact number of car bays available in close proximity to CP23. The applicant's car parking management policy (Exhibit 6) indicates that car bays on campus that are allocated for red or yellow permits do not require the display of a permit on weekends at all and so are available for parking on weekends. Some such car bays are found close to the applicant's sport and recreation centre, which is closest to the MBFR and CP23. Further, the map and legend at Exhibit 6 indicates significant on and offroad parking along Hackett Drive. In addition, there are areas of paid parking on the campus. The reduction of CP23 to 103 car bays in the scheme of all of the paid and unpaid parking available on and around the campus and on and off Hackett Drive, appears on face value, to be negligible in terms of catering for the public to have access to the whole of MBFR nearby and negligible in terms of catering for the invitees of the PDSC and Cygnet Hall on the weekends. Given the lack of reliable evidence of use of CP23 by invitees of the MBFR tenants; the evidence of substantial parking facilities in the locality; the evidence that DPaW has managed the MBFR car parking to some extent in the northern section of the MBFR; the PDSC's parking management policy (Exhibit 4); and that Hale has no entitlement to any parking within its lease area because it has built on the entirety of its lease, the Tribunal concludes that the reduction of CP23 by the Forrest Hall development does not warrant any additional car parking management.
As to the regular weekday use of CP23 which comprises invitees of the applicant (students, staff and other invitees to the applicant's campus), the loss of over 150 car bays out of a capped number of 4250 is not a significant proportionate loss of bays, from a mathematical point of view. The Tribunal raised with each party that it observed that the greatest impact of the Forrest Hall development would be on the regular weekday users students, staff and other invitees to the applicant's campus. The respondent stated its position was that the applicant's parking plan (Exhibit 6) adequately catered for all the parking needs arising from the operation of the University (T:122; 16.12.16). The applicant agreed (T:111; 16.12.16). As the body charged with the overall responsibility of planning in this State, the Tribunal relies upon the position taken by the respondent that the applicant's car parking management plan is adequate to deal with the loss of the car bays from CP23 in such a way that it will operate to preserve the amenity of the locality and avoid undesirable consequences, such as unsafe and disorderly parking in nearby residential areas within the locality, by students, staff and other of the applicant's invitees. Accordingly, the Tribunal finds that, on the evidence, the Forrest Hall development does not require the imposition of a condition to manage the car parking needs of the applicant's invitees or members of the public during the weekdays of the applicant's teaching year, or any other time of the calendar year.

The expert planning evidence

Mr McMullen, the Director of Policy and Priority Initiatives Division of the Department of Planning, was called by the respondent. Mr McMullen holds undergraduate and postgraduate academic qualifications in Urban and Regional Studies and Planning; a graduate academic qualification in Law; and postgraduate academic qualifications in Public Policy. Mr McMullen has acquired very considerable experience in the field of planning and development and development of public policy, and he is a well qualified expert in the field of planning and development. Mr McMullen's evidenceinchief is contained in redacted and amended Exhibit 10. Much of Exhibit 10 deals with uncontroversial background to the respondent's review decision being made. Mr McMullen has referred to policies that are not advanced by the respondent as being relevant (Exhibit 10 paragraph 56) but none the less informative in a general sense. Ultimately, his opinion is that a vehicular pathway along the eastern boundary of Lot 2885 and CP23 to 'separate access points corresponding to each [lease area] has advantages' (paragraph 77). This is a statement of opinion that the Tribunal agrees with and seems unlikely to be disputed. The question is, however, whether it is consistent with the orderly and proper planning of the locality; accords with the relevant policy statements; meets the need to preserve and enhance the amenity of the locality; and does not frustrate the reserve purpose of Lot 2885 in particular. Mr McMullen also concludes at paragraph 78 that the disadvantage of such a pathway being constructed hard up against the Forrest Hall development near alleged access 3 noise and light from pedestrians and vehicles would not be 'severe'. In his opinion, this is so because the proposed pathway is below the apartments at the northeast of the Forrest Hall development and any noise and light may be compensated for by the applicant in the method of construction.
However, the Tribunal reject's Mr McMullen's opinion concerning the imposition of conditions 8 and 9. He does not have regard to the fact that the pathway contemplated by condition 8 will abut an external wall of a bedroom within the Forrest Hall development (T:45; 9.12.16 and AB page 43). Mr McMullen dismissed the reduction in amenity caused by such a situation as being able to be accommodated in the construction of Forrest Hall. There must, however, be a proper planning purpose basis for the imposition of the conditions in the first place before contemplating whether they may, in all reason, be accommodated by the applicant altering its intended construction and placement of the building on its land.
Further, Mr McMullen does not address the fact that in the Tribunal's view the reinstatement of twoway, or even single file, vehicular access along the length of CP23 flies in the face of the policy ambitions referred to above. Such a vehicular pathway is not consistent with complementary and sympathetic landscaping of the areas to harmonise the junction of the MBFR and the proposed development as referred to in SPP2.10 cl 5.9, cl 7.4 and cl 8.2. Further, it is not a question, in the Tribunal's view, whether it is advantageous to facilitate a vehicular pathway to alleged access 3 to access the MBFR from every point along that pathway or at the northern end near CP23, but whether on the facts such is called for on the basis of orderly planning purposes and whether it is a proper use of the land. Mr McMullen does not consider the reserve purpose of Lot 2885 as a significant factor in this dispute and makes no real allowances for that factor. It is for these reasons that the Tribunal respectfully does not accept Mr McMullen's opinion that conditions 8 and 9 are reasonably necessary. Mr McMullen gave little useful evidence concerning condition 5. The Tribunal notes that the joint expert report of Mr McMullen and Mr Riley (Exhibit 7) refers to an 'historical agreement concerning the use of the car park'. To the extent that this statement refers to the respondent's alleged agreement, promise, or undertaking, it has no foundation.
Ms Chapman, a director of Taylor Burrell Barnett (a firm of expert planners) holds undergraduate academic qualifications in Geography and Anthropology and postgraduate academic qualifications in Urban and Regional Planning. Ms Chapman is experienced in the field of planning and development and she too is a well-qualified expert in this field. Ms Chapman's amended statement comprises Exhibit 9.
In her opinion the MBFR area in question is a pleasant area that accommodates both active and passive recreational opportunities. In her view, the buildings of the PDSC and Cygnet Hall lease areas are not well maintained with access and parking areas showing 'evidence of wear and lack of maintenance' (paragraph 8). In her opinion, the MBFR amenity is poorly served by the bituminised CP23 which lacks a dedicated pedestrian pathway within CP23 and between CP23, the Water reserve and the MBFR (paragraph 9). The Forrest Hall development is both consistent with the designs of existing buildings of the applicant's campus (which the Tribunal notes as being described in SPP2.10 as 'landmark'). Pedestrian access is dominant via a 'clearly visible, dedicated pathway/footpath directly linking users of the shared path at the corner of Hackett Drive and Mounts Bay Road with the Foreshore' (paragraph 10). The Tribunal considers that to be entirely consistent with the terms of SPP2.10, referred to above. Ms Chapman considers the amenity of the locality will be improved because the existing view of the MBFR from Hackett Drive via the 'unattractive carpark will be enhanced' by the Forrest Hall buildings designed to promote 'through views'. The Tribunal finds this is consistent with the policy aims of SPP2.10 and the enhancement of the amenities of the locality as referred to in cl 30(1) of the MRS text. As to condition 8 and 9, she is of the view that a vehicular pathway to alleged access 3 will encourage vehicles to travel at higher speeds (T:127; 9.12.16); result in more vehicle noise to the detriment of the amenity of the locality; and result in a higher degree of conflict between pedestrian and vehicular traffic in and about the MBFR.
Whilst the speed of any vehicular traffic could be controlled by signage and direction, the Tribunal agrees with Ms Chapman's observations. The Tribunal prefers the expert evidence of Ms Chapman to that of Mr McMullen because, first, it is factually based instead of based upon assumptions of agreements and references to planning policies without connection to the facts of the development and the facts of the locality. Secondly, it addresses the merits or otherwise of the development as a whole. The application for approval is for the Forest Hall development which must be considered as a whole. The application was not for a truncation of CP23 alone, which has been the focus of the respondent's expert witness. The detriment to the amenity for the residents of Forrest Hall, because of the proximity of the substantial vehicular pathway, is significant and unnecessarily so, given the adequacy of access to the tenancies within the MBFR for the reasons referred to. Further, the detriment to local amenity by reason of increased traffic noise, conflict with pedestrian traffic and the desire expressed in the policies to connect the public with the MBFR in a manner uninterrupted by obstacles such a vehicular paths, persuade the Tribunal that conditions 8 and 9 are not consistent with the preservation and enhancement of the amenities of the locality.

Conclusion

Condition 5

The Tribunal finds, on the evidence, that the proposed development is not likely to impact upon the car parking needs of the rowing, boating and sailing operations undertaken from the MBFR by the current tenants of the leased areas within the MBFR referred to herein, or any other water activities that might be undertaken from the MBFR by any other operation in the future.
The need for car parking during the performance of such activities will continue to be amply catered for by the nearby on and offroad parking (Exhibit 6) and, in particular, the availability of either paid or free car parking within the applicant's campus when the water sports activities are at their peak on the weekend. Given the lack of reliable evidence concerning the seasonal use of CP23 by the invitees of PDSC and Hale particularly on Saturdays, the Tribunal cannot conclude that the reduction in size of CP23 to 103 car bays from 270 car bays will have any real impact on the activities of the PDSC or Hale. Car parking on the MBFR near Cygnet Hall and vehicular access thereto via the PDSC lease remains possible and entirely adequate and there is no reliable evidence that it is not adequate. Access by the Forest Hall development's neighbouring uses on the MBFR for suitable parking in the MBFR and marshalling and drop off areas within the MBFR are amply accommodated by the applicant's proposed alternative to condition 8.
As to the growth that the PDSC may wish to engage in, the Tribunal notes that its growth will inevitably be limited by the size of its demise, in any event. The need for additional car parking can be accommodated by the surrounding car parking referred to in Exhibit 6. The imposition of condition 5 is inconsistent with the public purpose of 'University' for Lot 2885 in that the condition, by its terms, will require the CP23 to be made available and to focus on car parking for nonuniversity users. A parking management plan that is to be undertaken in conjunction with an entity that is unrelated to and has entirely different objectives to the 'University' reserve purpose imposed on Lot 2885, has the impact of skewing the purpose and benefit of any car parking within reconfigured CP23 from the overarching statutory purpose for which Lot 2885 was reserved.
Further, there is no need demonstrated on the evidence for any additional or specific car parking management plan to cater for buses, boat trailers, cars and rowing needs. CP23 has not required management for Saturday or weekend parking in the past. There is no reliable evidence before the Tribunal that the proposed reduction of car bays at CP23 is so significant that management of the parking with particular emphasis on the needs of the operations of boating, sailing and rowing operations within MBFR must be specifically addressed and formalised. It must be born in mind that the applicant is not obliged to continue to operate a public carpark on CP23, particularly given the reserve purpose of Lot 2885.

The Forrest Hall development does not propose any change to the way in which the applicant has been managing CP23 in the past. There is no evidence that when the development is completed, CP23 will be operated differently from that previously. Any change to the management of CP23 by the applicant would be a process separate from the application currently before the Tribunal.
The Tribunal is also satisfied by the parties' joint positions that no additional car parking management plan for the reduced CP23 concerning weekday use and needs is warranted given the applicant's existing management (Exhibit 6).
On the evidence, therefore, the Tribunal concludes that while condition 5 is arguably related to a planning purpose, that is, the orderly management of parking needs for or arising from a development, the need for a condition which requires the neighbours' parking to be accommodated on the development site, does not fairly and reasonably relate to the development approval. The Forrest Hall development does not bring about the need for the applicant to now have to identify the parking arrangements that the neighbouring uses would find convenient and to grant to those neighbouring uses by way of a parking management plan, an ongoing right to have CP23 available to specifically accommodate those neighbours' wants. The neighbouring uses have never had such additional parking privileges. On the completion of Forrest Hall the neighbouring uses, along with others as before, can continue to use the remaining area of CP23 in the manner in which they did previously. A parking plan is not required for this to occur.
Condition 5 is not required for the orderly and proper planning of the locality and is not required to preserve the amenities of the locality on the facts of this review. Further, the Tribunal concludes that condition 5 imposes a significant restriction on the use of Lot 2885 for its reserved purpose and it will prejudice or frustrate the reserve purpose of Lot 2885 in the future. Given that condition 5 calls for the proposed parking management plan, skewed in favour of visitors to the MBFR and specific visitors to the MBFR, to be implemented in its 'entirety', the Tribunal concludes that it will more probably than not impose an obligation on the applicant to continue to operate CP23 (when it has no such obligation at all).

Conditions 8 and 9

There is no historical basis or need for, or demonstrated use of, a particular pathway the full length of CP23 as it is and alleged access 3 for the operation of the water sports by the PDSC and Hale or for access to the MBFR by the public generally on the accepted and reliable evidence before the Tribunal. The starting position is that the applicant proposes an alternative condition that ensures access from Hackett Drive over Lot 13177 onto CP23 and Lot 2885 to the MBFR via access 1and 2 to the UWA boatshed area and via access 2 to the PDSC leased area and via the PDSC area to the Cygnet Hall lease area and the remainder of the MBFR currently used for ad hoc parking. There is no longstanding history of use of alleged access 3 and no agreement, promise, or undertaking concerning alleged access 3 to give rise to any suggestion that condition 8 is merely formal recognition of preexisting informal orderly planning. In fact, the Tribunal has found that the applicant has indicated consistently since 1977 that access 1 and 2 are the only access points it will agree from CP23 and Lot 2885. The history shows that the use of the track referred to herein and the junction of the track with CP23 at alleged access 3 has been anything but orderly and there is no evidence that the applicant was privy to any decision involved in the evolution of the track and the junction with CP23 at alleged access 3. If there had been such evidence, the respondent no doubt would have advanced it on this review by way of a hearing de novo.
The Tribunal finds that the orderly and proper planning of the land in issue commands that a condition be imposed on the grant of approval of the Forrest Hall development to ensure certain and clear access to the MBFR, and the boating, sailing and rowing operations within to preserve the amenities of the locality. The Tribunal also finds that such a condition is necessary to avoid future litigation and confusion in use of the land in question, and therefore in furtherance of establishing orderly planning to this particular locality. The Tribunal also finds that such a condition is required to facilitate access to Forrest Hall and CP23. The applicant's final proposed alternative to conditions 8 and 9 filed on 13 April 2017 is in substance consistent with that requirement is in accord with the orderly and proper planning needs of the locality and is consistent with or at least not prejudicial to Lot 2885's reserve purpose 'University'.
The Tribunal is not satisfied that extant condition 8, on the facts, addresses a need in the sense that it will preserve or improve the amenity of the locality. The Tribunal does not accept the contention that alleged access 3 is needed to preserve the water activities within the relevant section of the MBFR. That need is adequately addressed and accommodated by the applicant's proposed alternative to condition 8. As found by the Tribunal, the access to Cygnet Hall via access 2 and the PDSC lease is adequate and within DPaW's ability to manage given the provisions of cl 11.7 of the PDSC lease. The Tribunal rejects the contention that the uses of the MBFR for water activities are such that alleged access 3 is required because of alleged traffic congestion. The congestion, such as it is occurs, is limited to around 3 pm on some Saturday afternoons during the sailing season. The congestion on the evidence is occasional and minimal and the imposition of condition 8 is wholly disproportionate on the facts as found to meet those moments of congestion. On the facts, the orderly and proper planning of the locality does not call for the imposition of extant condition 8 and consequently the facts do not call for the imposition of condition 9 as it is currently drafted.
Further, the requirements of condition 8 would in the Tribunal's view detract from and will not enhance the amenities of the locality. The construction of a hard surface vehicular access path suitable for twoway, or even oneway traffic the full length of CP23, destroys the opportunity for uninterrupted pedestrian access from Forrest Hall and though Forrest Hall from Mounts Bay Road and Hackett Drive to the MBFR and the Matilda Bay waters. This is a feature of the Forrest Hall development that is entirely consistent with the reserve purpose of the MBFR and the provisions of SPP2 and SPP2.10 to ensure public access to the MBFR; public use and enjoyment of Matilda Bay for active and passive recreational activities; and complementary design and landscaping of developments to provide continuity between the development and the MBFR. Those policy ambitions will not be served, in the Tribunal's view, by interruption of the landscaping of the Forrest Hall development to complement the MBFR and interruption of the pedestrian access afforded to the public by the design of Forrest Hall to the MBFR. In the Tribunal's view, a hard surface vehicular access the length of CP23 is the antithesis of what is called for in the policies referred to herein.
Further, the proposed vehicular, hard-surfaced 6 metre wide access along the length of CP23 (partly on Lot 2885) would position that path hard up against the external wall of the proposed residential accommodation, substantially reducing or destroying a relevant resident's amenity and impinging on the applicant's reserve purpose development.
In conclusion, the Tribunal finds that, relative to the tests for whether the imposition of a planning condition can be validly sustained, condition 8 cannot be endorsed. While ensuring a development does not deprive neighbouring uses of adequate vehicular access is arguably a proper planning purpose, the proposed development combined with conditions similar to the attractions proposed by the applicant does not result in such an adverse outcome. This is because, as discussed above, adequate access to the uses on the MBFR is provided by longstanding access 1 and access 2 and these access points will remain. The respondent's advice note for condition 8 explained that access was required to the northern most access point, access 3. The Tribunal has found that the requirements of condition 8 do not fairly and reasonably relate to the approved development. The development does not bring about the need to establish any vehicle access point along the CP23 boundary additional to the two that will be maintained. Condition 8, therefore, is not to be endorsed as validly imposed.
Finally, the Tribunal acknowledges that following the hearing on 30 March 2017, the parties are in agreement that the access from Hackett Drive onto Lot 13177 must be secured by way of an easement to be duly registered on the relevant tiles. This is necessary for the orderly planning of the locality to ensure the MBFR, the leased areas within the MBFR, access 1 and 2, the Water reserve, CP23 and the Forrest Hall development, each has primary road access. To that extent, a condition is required to enshrine the property interest of the current users of the land in issue. It is also necessary for the amenities of the locality to be maintained and even enhanced and to meet the SPP2 and 2.10 policy objectives of allowing for public access to and use of the MBFR for active and passive recreational activities. To the extent that the inclusion of a reference to Lot 13177 was not the subject of earlier conditions and submissions, it was merely overlooked by the parties and there was never any dispute concerning the need for a condition preserving the Hackett Drive access to the relevant section of Lot 2885, the Water reserve and the MBFR.
The applicant's final proposed alternative to condition 8 and the accompanying plan includes a reference to access from Hackett Drive on Lot 13177 which detail is necessary for the orderly and proper planning of the locality and preservation of the amenity of the locality. Further, it is consistent with the reserve purpose of Lot 13177 in servicing public access to the relevant section of the MBFR. As to Lot 2885 the proposed alternative condition also meets the MRS reserve purpose and the Crown lease condition by providing access to a building within the applicant's campus. However, in the Tribunal's view, it is not sufficiently precise and the Tribunal shall impose differently drafted conditions.
For the reasons expressed:
a)The Tribunal shall vary the review decision and delete condition 5 in its entirety. The Tribunal is not empowered to vary the respondent's advice note 7. However, as advice note 7 refers to a condition that is deleted, it shall have no operation.
b)The Tribunal shall vary the review decision and delete condition 8 in its entirety.
c)The Tribunal shall further vary the review decision and substitute condition 8A in lieu of deleted condition 8 in similar terms of the applicant's proposed condition filed in the Tribunal on 13 April 2017. As advice note 9 refers to a condition that is deleted, it shall have no operation.
d)The Tribunal shall vary the review decision to delete condition 9 in its entirety and further vary the review decision and substitute condition 9A in lieu of deleted condition 9 in similar terms to the applicant's proposed alternative to condition 9 filed 13 April 2017.

Orders

For the reasons expressed the following order is made:
1.Upon review, the respondent's decision to grant conditional approval to the applicant's application file number 1050258 on 22 March 2016 for development of a five storey student accommodation building (Forrest Hall) containing 33 multiple dwellings, 39 residential car parking bays and associated site development and landscaping works on Lot 2885 (Reserve 17331), is varied by:
(a)the deletion of conditions 5, 8 and 9;
(b)the substitution of condition 8A in the following terms:
An access way to be constructed along the southeast boundary of Lot 2885 and across adjoining Lot 13177 to the widths and other dimensions as generally shown on the attached plan date stamped by the Tribunal 13 April 2017 replicated below, to the specification of the local government and the satisfaction of the Western Australian Planning Commission; and

(c)the substitution of condition 9A in the following terms:
Public Access Easement(s) in accordance with s 195 and s 196 of the Land Administration Act 1997 (WA) to be placed on;
i)the certificate of title of Lot 13177 for the benefit of:
(1)Lot 2888; and
(2)Lot 2885;

ii)the certificate of title of Lot 2885 for the benefit of Lot 2888
each specifying access rights over the access way required by condition 8A, prior to occupation of the development, to the satisfaction of the Western Australian Planning Commission.

I certify that this and the preceding [209] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS N OWEN-CONWAY, MEMBER

Details

AGLC: University Of Western Australia and Western Australian Planning Commission [2017] WASAT 70
Case: [2017] WASAT 70
Decision Date: 12 MAY 2017

CaseChat Overview and Summary

The University of Western Australia and the Western Australian Planning Commission were involved in a dispute before the Planning and Environment Court of Western Australia. The primary issue revolved around the imposition of certain conditions on a development application submitted by the University, which was seeking approval for a project on a piece of land reserved for university purposes under the Metropolitan Region Scheme (MRS). The Court was tasked with determining the relevance of the reserve purpose of the land, as well as the appropriateness of the conditions imposed by the Commission in relation to the development.

The legal issues centred on whether the conditions imposed on the University’s development application were fairly and reasonably related to the development and whether they were necessary to ensure the preservation of the reserve purpose of the land. Another key issue was the interpretation of clauses 30(1) and 19 of the MRS, which relate to the consideration of the reserve purpose in the context of development applications. The University argued that the reserve purpose should be one of the three relevant factors to consider when imposing conditions, while the Commission contended that the reserve purpose was not a pertinent factor.

The Court found that the applicant, the University of Western Australia, did not qualify as a 'public authority' within the meaning of the Planning Act. The Court concluded that the reserve purpose of the land was a pertinent factor in exercising the discretionary power conferred by clause 30(1) of the MRS. The Court held that the imposition of conditions should not frustrate, be inconsistent with, or be prejudicial to the reserve purpose. The Court rejected the Commission’s contention that the other two factors mentioned in clause 30(1) should be the primary focus, and instead agreed with the University that all three factors should be considered. The Court further held that there was no threshold standard that needed to be satisfied before the power to grant an approval could be exercised.

The Court ruled in favour of the University, finding that the conditions imposed by the Commission were not fairly and reasonably related to the development and that they were inconsistent with the reserve purpose of the land. The Court quashed the decision of the Commission and remitted the matter for reconsideration in light of the Court’s findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

The applicant is established pursuant to the University of Western Australia Act 1911 (WA) (UWA Act) and conducts itself pursuant to that Act. It is an Australian Higher Education Provider that is regulated by the Higher Education Support Act 2003 (Cth) and access to the applicant is regulated by Tertiary Education Quality and Standards Agency Act 2011 (Cth). There is no evidence that it administers or carries on any function 'for the benefit of the State' (In Re Anti-Cancer Council of Victoria; Ex Parte State Public Services Federation[1992] HCA 53; (1992) 175 CLR 442) (Anti-Cancer), rather than for the benefit of the Commonwealth of States and Territories of Australia. There is no evidence that it conducts any form of 'social service' or 'public utility'. As such, the Tribunal concludes that the applicant does not fall within 4(1)(c) of the PD Act of the definition of 'public authority'. Further, for the reasons expressed in AntiCancer at [82], the Tribunal concludes that the applicant is not a State instrumentality. The mere fact that a statutory corporation is created and regulated by legislation does not render it a State instrumentality (AntiCancer). Accordingly, the Tribunal concludes that the applicant does not fall within category 4(1)(b) of the PD Act of the definition of 'public authority'. For these reasons, the Tribunal concludes on the evidence before it, that the applicant is not a 'public authority' within the meaning of that phrase as provided for by s 4 of the PD Act and as provided for in the MRS text. Therefore cl 19 of the MRS text is relevant to this review in that the reserve purpose of Lot 2885 is not merely one of three factors to be considered pursuant to cl 30(1) of the MRS text, but is a pertinent factor in exercising the discretionary power conferred by cl 30(1) of the MRS text. In the Tribunal's view, the imposition of conditions if not necessary to preserve and ensure dominance of the reserve purpose must at least not frustrate, or be inconsistent with, or prejudicial, to the reserve purpose. The applicant contends that (ASIFC paragraph 4.8): It is uncontroversial that Conditions 8 and 9 are sought to be imposed for reasons unrelated to the purpose of Reserve 17331. The respondent in its contention at paragraph 42 of the RSFIC states that:… Pursuant to cl 30(1) of the MRS, in exercising that discretion and in the setting of conditions the Respondent (now the Tribunal) has to be satisfied, inter alia, that the Proposed Development:(a)is consistent with the orderly and proper planning of the locality; and(b)will preserve the amenity of the locality.(Original Emphasis) While the respondent has not omitted reference to the reserve purpose as a factor ('inter alia') it is apparent that the respondent does not consider it a pertinent factor when considering the exercise of the power conferred by cl 30(1) of the MRS text in this proceeding and contends that the other two factors referred to above are, or should be, the overarching focus in this review. The applicant, on the other hand, contends that there are three factors relevant in the exercise of the power conferred by cl 30(1) of the MRS text and disputes the assertion that the Tribunal must be 'satisfied' of any standards as contended by the respondent (ASIFC paragraph 4.3). The Tribunal agrees that there is no threshold standard that must be determined by the Tribunal in exercising the power conferred by cl 30(1) of the MRS text, before which the power to grant an approval can be exercised. What it must do is have regard to the three factors referred to:a)the purpose for which Lot 2885 was reserved under the MRS in this case 'University' and the purpose for which Lot 13177 was reserved under the MRS parks and recreation;b)the orderly and proper planning of the locality; andc)the preservation of the amenities of the locality.