WA Developments Pty Ltd and Western Australian Planning Commission - [2008] WASAT 260

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WA DEVELOPMENTS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 260

MEMBER: MR D R PARRY (SENIOR MEMBER)
MR B HUNT (SENIOR SESSIONAL MEMBER)

HEARD: 28 OCTOBER 2008

DELIVERED : 5 NOVEMBER 2008

FILE NO/S: DR 235 of 2007

BETWEEN: WA DEVELOPMENTS PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
PERTH INTERNATIONAL MOTORSPORTS PTY LTD
First Intervenor
MOTORSPORTS INDUSTRIAL PROPERTIES PTY LTD
Second Intervenor

Catchwords:

Town planning - Two lot subdivision - Proposed central boundary traverses area containing declared rare flora - Condition of subdivision approval - Central boundary being realigned to ensure that all declared rare flora populations are located within one lot - Applicant originally agent for co-owners - Agency terminated by one co-owner - Applicant and one co-owner no longer contest condition - Other co-owner contests condition - Co-owners both granted leave to intervene - Whether condition is valid - Whether condition is appropriate and reasonable - Ecologically sustainable development - Precautionary principle - Whether condition is uncertain - Whether Tribunal should endorse a plan showing realigned boundary to give effect to condition in manner proposed by one co-owner and opposed by other co-owner

Legislation:

Bush Fires Act 1954 (WA), s 33, s 33(4)
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 179
Environment Protection (Clearing of Native Vegetation) Regulations 2004 (WA), reg 5[10]
Environmental Protection Act 1986 (WA), s 51B, s 51C, Sch 6[1], Sch 6[10]
Planning and Development Act 2005 (WA), s 135, s 251(2), s 251(4)
State Administrative Tribunal Act 2004 (WA), s 37(3), s 46(1)
Wildlife Conservation Act 1950 (WA), s 6(1), s 23F

Result:

Condition 1 affirmed

Category: A

Representation:

Counsel:

Applicant:     Mr PJ McQueen with Ms RA Somerford
Respondent:     Ms KAT Pedersen
First Intervenor              :     Mr JCW Skinner
Second Intervenor         :     Mr PJ McQueen with Ms RA Somerford

Solicitors:

Applicant:     Lavan Legal
Respondent:     State Solicitor's Office
First Intervenor              :     Jackson McDonald
Second Intervenor         :     Lavan Legal

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

Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130
Newbury District Council v Secretary of State for the Environment [1981] AC 578
SinAusBel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67
Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This case concerned whether a condition of a two lot subdivision approval, requiring the proposed central boundary to be realigned to ensure that a declared rare flora population is fully located within one proposed lot, is valid, appropriate and reasonable. A small, central, wetland area on the site contains the largest known population of the declared rare flora in Western Australia. The species is listed as 'vulnerable', meaning that it is considered to be facing a high risk of extinction in the wild. The proposed central boundary traverses the area containing the species.
The Tribunal determined that the condition is valid. The condition is for a planning purpose, namely to avoid or minimise the impact of the subdivision on the environment, and in particular on the declared rare flora which is of high conservation and biodiversity value. The condition fairly and reasonably relates to the proposed subdivision because the subdivision, and particularly the location of the proposed central boundary, poses a threat of serious or irreversible environmental damage to the flora in consequence of the potential construction of a fence and clearing of a firebreak along the boundary and potential adverse effect on proper management. The condition is not so unreasonable that no reasonable planning authority could have imposed it.
The Tribunal applied the precautionary principle, namely that where there is a threat of serious or irreversible environmental damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation. The realignment of the central boundary required by the disputed condition is proportionate to the threat and is costeffective. Therefore, the condition is appropriate and reasonable.
The Tribunal affirmed the condition and dismissed the application for review.

Introduction and background

In January 2007, WA Developments Pty Ltd (WAD) applied to the Western Australian Planning Commission (Commission) for approval under s 135 of the Planning and Development Act 2005 (WA) (PD Act) to subdivide Lot 5 BoyanupPicton Road, Picton East (site) into two lots with areas of 121 hectares and 212 hectares. WAD made the subdivision application as agent on behalf of Perth International Motorsports Pty Ltd (PIM) and Motorsports Industrial Properties (Bunbury) Pty Ltd (MIP) which are the registered proprietors as tenants in common of the site in shares of 121/333 and 212/333 respectively.
The central boundary of the proposed subdivision traverses a small wetland area containing Diuris drummondii (Tall Donkey Orchid) which is a declared rare flora under the Wildlife Conservation Act 1950 (WA) (WC Act) and classified by the Department of Environment and Conservation (DEC) as 'vulnerable'. The species is also listed as 'vulnerable' under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). A 'vulnerable' species is one that is 'considered to be facing a high risk of extinction in the wild' (International Union for Conservation of Nature and Natural Resources criteria used by DEC; EPBC Act s 179). In these reasons, Diuris drummondii (Tall Donkey Orchid) is referred to as 'DRF' (declared rare flora).
The DRF was discovered on the site by WAD's consultant ecologist, Mr Joshua Foster, while undertaking a botanical survey in December 2006. At that time, Mr Foster recorded 41 plants. In December 2007, the DEC resurveyed the site and found 1,043 plants. Mr Foster considers that this significant increase in the number of plants may be due to the characteristics of the DRF and climatic considerations. The DRF requires seasonal inundation well into December, is susceptible to changes in water quantity and quality, has a close association with mycorrhizal (soil) fungus and is pollinated by a variety of native bees. There are only 32 scattered populations of the DRF known in Western Australia, including four in the DEC Bunbury Region. The site contains the largest known population of the DRF in Western Australia.
In June 2007, the Commission granted subdivision approval, subject to the following four conditions:
1.The central boundary being realigned to ensure that all Declared Rare Flora (DRF) populations are located within one lot. (DEC)
2.Wallrodt Road being widened and upgraded. (Local Government)
3.A cul-de-sac head being designed and constructed at the end of Wallrodt Road to the satisfaction of the Local Government. (Local Government)
4.Notification in the form of a section 70A notification, pursuant to the Transfer of Lands Act 1893 (as amended) is to be placed on the Certificates of Title of the proposed lot containing DRF advising that:
This property has an occurrence of the Declared Rare species Diuris drummondii. This species is protected under the Wildlife Conservation Act and shall not be taken by any persons without the consent of the Minister for the Environment. Taking of flora includes unauthorised clearing, burning, picking or grazing.
Prospective purchases should check with the local office of the Department of Environment and Conservation prior to undertaking any activity that may impact upon Declared Rare Flora. (WAPC)
In July 2007, WAD commenced these proceedings pursuant to s 251(2) of the PD Act for review of each of the four conditions of subdivision approval. As a result of mediation in the Tribunal, WAD no longer contests any of the four conditions and, in July 2008, applied for leave to withdraw the application under s 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
However, prior to WAD's application for leave to withdraw, PIM applied for leave to intervene in the proceedings under s 37(3) of the SAT Act, in order to contest condition 1 of the subdivision approval. In July 2008, the President granted both PIM and MIP leave to intervene in the proceedings, to the extent required for coowners of the site.
In these somewhat unusual circumstances, the applicant for review and the respondent, as well as one of the co-owners of the site (MIP), contend that the application for review should be dismissed, whereas the other coowner of the site (PIM) contends that the application for review should be allowed and condition 1 should be deleted. Alternatively, PIM contends that condition 1 should be replaced with a condition endorsing a plan showing the realignment of the central boundary in the manner proposed by it. MIP opposes PIM's plan for the realignment of the central boundary for commercial and environmental reasons.

PIM's contentions

PIM contends that condition 1 is invalid and, in any case, inappropriate and unreasonable. Alternatively, PIM argues that if condition 1 is valid, appropriate and reasonable, it is never the less uncertain and imprecise in so far as it fails to specify the actual realignment of the central boundary that is required to give effect to it.
PIM contends that, if it is found to be necessary and reasonable for a condition to be imposed on the approval of the proposed subdivision requiring the DRF population to be located within one lot, then the condition should be varied so as to endorse the actual realignment of the central boundary in the way it proposes on a plan. PIM's plan would locate almost all the area identified by the DEC as containing the DRF and as buffer area in the smaller of the two proposed lots and maintains the areas of the two proposed lots at approximately 121 hectares and 212 hectares as originally proposed.

Is the condition invalid, inappropriate or unreasonable?

In order for a condition of planning approval to be validly imposed, the condition must:
•be for a planning purpose and not for any ulterior purpose;
•fairly and reasonably relate to the proposed development or subdivision; and
•not be so unreasonable that no reasonable planning authority could have imposed it: Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57]; Newbury District Council v Secretary of State for the Environment [1981] AC 578.
Condition 1 is clearly for a planning purpose and not for any ulterior purpose. Its planning purpose is to avoid or minimise the impact of the subdivision on the environment and, in particular, on the DRF population on the site, consistently with State Planning Policy No 2 - Environmental and Natural Resources (SPP 2). In accordance with cl 5.1 of SPP 2, planning decisionmaking should:
…
(iv)protect significant natural … features, including sites and features significant as habitats and for their floral … values;
…
(vi)recognize that certain natural resources, including biological resources, are restricted to particular areas and that these geographical areas or land types may need to be identified accordingly and appropriate provision made to protect the areas of those natural resources;
…
(x)support conservation, protection and management of native remnant vegetation where possible to enhance soil and land quality, water quality, biodiversity, fauna habitat, landscape, amenity values and ecosystem function; …
Furthermore, cl 5.5 of SPP 2 states that planning decision-making should 'seek to avoid or minimise any adverse impacts, directly or indirectly, on areas of high biodiversity or conservation value as a result of changes in land use or development'.
Mr Matthew Cuthbert, a town planner employed by the Department for Planning and Infrastructure, who gave evidence on behalf of the Commission, summarised SPP 2 as requiring that planning decisions 'reflect the need to avoid or minimise the impact of land use, subdivision or development upon the environment, particularly upon areas of high conservation or biodiversity value'. The central part of the site contains the highest concentration of the DRF species known anywhere in Western Australia and is therefore an area of high conservation and biodiversity value. Condition 1 therefore is for a planning purpose and is not for an ulterior purpose.
Condition 1 also fairly and reasonably relates to the proposed subdivision.
The purpose of the subdivision is to facilitate the development of the site for motor racing and industrial purposes, increasing the risk of damage to the DRF, including through edge effects. Edge effects are the impacts that occur at the interface between development areas and native bushland including fire, fertiliser and other spray drift and incursion of weed species into the bushland.
Furthermore, the proposed central boundary passes directly through the area containing the DRF. The location of the boundary poses a threat of serious or irreversible environmental damage to the DRF population on the site in consequence of the potential construction of a fence and clearing of a firebreak along the boundary and potential adverse effect on proper management.
Mr JCW Skinner, counsel for PIM, submitted that the subdivision does not pose any increased risk to the DRF by virtue of the proposed location of the central boundary, because there are very significant legal restrictions on the carrying out of activities in the area containing the DRF. In particular, it is an offence under s 23F of the WC Act 'to take' the DRF without approval of the Minister for the Environment. The expression 'to take' is defined in s 6(1) of the WC Act, in relation to any flora, as including 'to gather, pluck, cut, pull up, destroy, dig up, remove or injure the flora or to cause or permit the same to be done by any means'. The term 'flora' is defined in s 6(1) of the WC Act to mean any plant which is native to the State and includes any part of the flora and all seeds and spores. It is common ground that the Minister for the Environment is unlikely to grant an authorisation to take any of the DRF.
Furthermore, it is common ground that the area containing the DRF is an 'environmentally sensitive area' for the purposes of s 51B of the Environmental Protection Act 1986 (WA) (EP Act), with the consequence that clearing for fencing can not occur without a clearing permit from the DEC: see EP Act s 51C and Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) reg 5 [10]. A clearing permit is unlikely to be granted, if sought.
In conducting planning review proceedings, the Tribunal generally presumes that people comply with the law. However, as Mr PJ McQueen, counsel who appeared with Ms RA Somerford on behalf of WAD and MIP, submitted, there is, in the circumstances of this case, a risk of inadvertent damage to the DRF through fencing, even if unlawful. This is because, as Mr Cuthbert said, it is usual for rural properties to be fenced along the property boundaries. Significantly, also, as Ms KAT Pedersen, counsel for the Commission, emphasised, the DRF is a seasonal species, the above ground appearance of which varies significantly from one year to the next. Mr Foster, who gave evidence on behalf of PIM, also acknowledged that people may take or clear the DRF without knowing that the species is present. He is personally aware of incidents in which such activities have occurred out of season.
The Tribunal therefore finds that, in the circumstances of this case, the practical reality is that fencing is likely to occur in the area containing the DRF even though it would be unlawful in the absence of a clearing permit and potentially in the absence of an approval to take the DRF under the WC Act. The placement of a notification on title, in accordance with condition 4, advising purchasers of the occurrence of the DRF on the property and the need to obtain approval to take it, does not alter this finding because of the characteristics of the species referred to earlier and having regard to Mr Foster's experience.
Furthermore, s 33 of the Bush Fires Act 1954 (WA) (BF Act) authorises a local government to give a notice to an owner or occupier of land situated within its district 'to plough, cultivate, scarify, burn or otherwise clear upon the land firebreaks in such manner and, at such places…, as the local government may … determine'. This power may be exercised 'as a measure for preventing the outbreak of a bush fire, or preventing the spread or extension of a bush fire which may occur'. If the owner of occupier does not comply with a notice, the local government may enter on the land and carry out the notice: BF Act s 33(4). Mr Foster said that while fire breaks do not have to follow property boundaries, they tend to do so.
A person may lawfully cause or allow native vegetation to be cleared if the clearing is of a kind set out in Sch 6 of the EP Act, even in an 'environmentally sensitive area' under the EP Act (EP Act s 51C(b)). Item 1 of Sch 6 of the EP Act authorises the following:
Clearing that is done in order to give effect to a requirement to clear under a written law.
Clearing required by a local government to create a fire break so as to prevent the outbreak of a bush fire or the spread or expansion of a bush fire is, relevantly, clearing that is done in order to give the effect to a requirement to clear under a written law for the purposes of item 1 of Sch 6 of the EP Act. A clearing permit would not, therefore, be required under the EP Act to give effect to a local government notice under s 33 of the BF Act. While, as Mr Skinner observed, item 10 of Sch 6 of the EP Act specifically refers to clearing done under sections of the BF Act other than s 33, item 10 is concerned with permission or authorisation under the BF Act, whereas s 33 of the BF Act and item 1 of Sch 6 of the EP Act are concerned with imposed requirements to clear. Item 10 does not warrant the reading down of item 1 so as to exclude a notice under s 33 of the BF Act.
While it is an offence under s 23F of the WC Act 'to take' the DRF, including seeds, it is quite conceivable that the local government will give a notice to clear a firebreak at the proposed central boundary and that this will be carried out in the area containing the DRF. Mr Foster is aware of incidents in which fire breaks have been constructed by contractors in areas containing rare flora out of season. Moreover, even in season, as noted earlier, there can be a significant difference in the number of plants from one year to the next. Consequently, contractors or the local government may plough or otherwise clear a firebreak without actually taking the DRF or without knowing that they are taking it in the form of seeds.
Mr Foster and Ms Aminya Ennis, the DEC's regional planning officer for the southwest regional office, agree that the construction of a fire break along the proposed central boundary in the vicinity of the DRF would have adverse effects on the DRF in terms of incursion of weeds, hydrological disturbance and fragmentation.
In relation to management of the DRF, Mr Foster and Ms Ennis agree that it is biologically preferable to have a consistent approach across the DRF population and that:
Placing the DRF on one lot is the most effective way of limiting damage to the DRF that may result from the subdivision of the [site] … [E]nsuring that the DRF is on one lot, where lots have not already been created, maximises the potential management of the population.

The experts explained that this is the case because splitting the DRF between two lots would:
•require the DEC to negotiate with two separate land owners, as it cannot unilaterally impose management actions;
•potentially result in management on only one side of the boundary or inconsistent management on different sides of the boundary, in either case adversely effecting overall management of the population on the site; and
•potentially result in failure to properly manage the DRF because of uncertainty as to responsibility.
Mr Skinner submitted that management controls for the DRF are not required as a result of the proposed subdivision or the location of the proposed central boundary, but rather as a result of an independent need to protect the DRF. However, the proposed subdivision facilitates development of the site and thereby gives rise to additional risk to the DRF; cf SinAusBel Pty Ltd and Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67 at [35][48]. Furthermore, the location of the proposed central boundary in the area of the DRF in itself gives rise to the management problems discussed earlier, which condition 1 avoids.
Mr Skinner also submitted that the DEC currently has to deal with two coowners and that this, in effect, will not change after the proposed subdivision is carried out. However, a single owner may purchase the whole of the site, if not subdivided, whereas the proposed lots are likely to be in separate ownership. Furthermore, the proposed subdivision is different to the present coownership, because of the risk of inconsistent management and failure to properly manage owing to uncertainty as to responsibility.
Finally, Mr Skinner submitted that there is no evidence of any actual difficulties experienced by the DEC in management of other DRF populations which are split between different lots. However, based on the joint expert evidence and logic, the Tribunal finds that it is preferable, in terms of orderly and proper planning, for the whole of the DRF on the site to be located in one lot, rather than split between two lots.
The Tribunal therefore finds that condition 1 fairly and reasonably relates to the proposed subdivision.
The Tribunal also considers that, for reasons discussed earlier, condition 1 is not manifestly unreasonable. Indeed, it is both appropriate and reasonable, having regard to the threat of serious or irreversible environmental damage to the DRF population on the site posed by the proposed subdivision and, in particular, by the location of the proposed central boundary.
One of the purposes of the PD Act is to 'promote the sustainable use and development of land in the State' (s 3(1)(c)). In Western Australia, 'development' does not include 'subdivision': see Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 at [25]. However, subdivision generally facilitates land use and development, and sustainability or ecological sustainability is now recognised as an important objective of orderly and proper urban and regional planning generally, including subdivision planning; see Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98 at [83][93] and [95][146].
In Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 146 LGERA 10 (Telstra), Preston CJ of the NSW Land and Environment Court observed at [108] as follows:
Ecologically sustainable development, in its most basic formulation, is 'development that meets the needs of the present without compromising the ability of future generations to meet their own needs': World Commission on Environment and Development, Our Common Future, 1987 at p 44 (also known as the Brundtland Report after the Chairperson of the Commission, Gro Harlem Brundtland). More particularly, ecologically sustainable development involves a cluster of elements or principles. Six are worth highlighting.
Having identified each of the six elements or principles of ecologically sustainable development, Preston CJ proceeded, at [125183], to comprehensively consider the precautionary principle. The precautionary principle has been defined as:
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation. (Rio Declaration on Environment and Development, n 25, Principle 15).
In Telstra, Preston CJ held, at [128], as follows:
The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate: N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules, Oxford University Press, 2005 at 155.
At [130], his Honour recognised that threats to the environment that should be addressed include indirect threats.
The Tribunal considers that the precautionary principle applies in this case and warrants the imposition of condition 1. Both of the conditions or thresholds identified by Preston CJ in Telstra at [128] are satisfied on the basis of the findings made earlier. The proposed subdivision and, in particular, the location of the proposed central boundary, poses a threat of serious or irreversible environmental damage to the DRF population on the site in consequence of the potential construction of a fence and clearing of a firebreak and potential effect on proper management. Furthermore, there is scientific uncertainty as to the environmental damage posed by the threat.
Consequently, as Preston CJ held in Telstra at [150]:
A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality.
His Honour also noted at [156] that the precautionary principle:
permits the taking of preventative measures without having to wait until the reality and seriousness of the threats become fully known.
Condition 1 embodies a precautionary measure that mitigates the anticipated threat of environmental damage. The measure is proportionate to the threat and is costeffective. The condition is therefore both appropriate and reasonable.
Finally, the Tribunal notes Mr Skinner's submission that management conditions are preferable to condition 1. However, PIM did not clearly identify management conditions or how they could operate.

Is the condition uncertain?

Condition 1 is not uncertain or imprecise in failing to specify the actual realignment of the central boundary that is required to give effect to it. Having regard to Mr Foster's botanical survey of the site, and the DEC's specific survey of the DRF, there is no doubt as to what flora species the condition refers to, nor as to its general location. The fact that the DEC as the clearance authority may accept one of a number possible realignments to give effect to condition 1 does not make the condition uncertain or imprecise. A degree of flexibility in the application of the condition is appropriate having regard to the characteristics of the DRF.
Furthermore, although the Tribunal would have power to vary condition 1 so as to identify the realigned boundary on a map, it would be contrary to orderly and proper planning to do so in the circumstances of this case. This is because the condition contemplates that the land owners will determine the realigned central boundary in consultation with the DEC. The plan put forward by PIM is opposed by MIP for commercial and environmental reasons. Furthermore, it is not the proper role of the Tribunal in these proceedings, which concern whether condition 1 can and should be imposed, to, in effect, usurp the role of the DEC as the clearance authority for the condition. While PIM's proposed varied central boundary includes most of the area identified by the DEC as containing the DRF and buffer areas, and while PIM's proposal may well be acceptable to the DEC, the DEC may also consider that a different configuration is preferable. If, ultimately, PIM and MIP, or the proprietor or proprietors of the site at the relevant time, submit a realigned central boundary plan to the DEC and the DEC refuses to clear condition 1, the landowner has a separate right of review by the Tribunal under s 251(4) of the PD Act.

Conclusion

The Tribunal has determined that condition 1 is valid, appropriate and reasonable. It is not uncertain or imprecise. The Commission's decision to affix condition 1 to the granting of the subdivision approval should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent made on 8 June 2007 to affix each of conditions 1, 2, 3 and 4 to the granting of subdivision approval of Lot 5 Boyanup - Picton Road, Picton East is affirmed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER