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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] WASAT 260
Decision Date: 5 NOVEMBER 2008

CaseChat Overview and Summary

In WA Developments Pty Ltd and Western Australian Planning Commission, the Western Australian Planning Commission granted approval for a subdivision subject to certain conditions, one of which involved realigning the central boundary to ensure all declared rare flora was located within one lot. The original applicant, who was the agent for the co-owners, had their agency terminated by one co-owner. While the applicant and one co-owner no longer contested the condition, the other co-owner did. Both co-owners were granted leave to intervene. The main legal issues involved whether the condition was valid, appropriate, and reasonable, and whether it adhered to the principles of ecologically sustainable development and the precautionary principle. Additionally, the court had to determine if the condition was uncertain and whether it should endorse a plan showing the realigned boundary as proposed by one co-owner and opposed by the other.

The court considered the precautionary principle, which requires measures to prevent environmental degradation when there are threats of serious or irreversible damage and scientific uncertainty. The court found both conditions precedent were satisfied due to the potential threat of serious or irreversible environmental damage and the scientific uncertainty about it. The condition was deemed proportionate, cost-effective, and thus appropriate and reasonable. The court also noted that the condition was not uncertain or imprecise, as it was clear which flora species and general location it referred to. The flexibility in the application of the condition was deemed appropriate due to the characteristics of the declared rare flora.

The court dismissed the application for review and affirmed the respondent's decision to affix conditions 1, 2, 3, and 4 to the subdivision approval. It held that condition 1 was valid, appropriate, and reasonable and adhered to the principles of ecologically sustainable development and the precautionary principle. The court found that the condition was not uncertain or imprecise and declined to endorse a plan showing the realigned boundary as proposed by one co-owner and opposed by the other.

The final orders were to dismiss the application for review and affirm 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.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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.