WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION - [2013] WASAT 185

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WILLIAMSON and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 185

MEMBER: MR P McNAB (SENIOR MEMBER)

HEARD: 18 JUNE 2013

DELIVERED : 14 NOVEMBER 2013

FILE NO/S: DR 371 of 2012

BETWEEN: ROSS KENNETH WILLIAMSON
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town Planning - Subdivision - Conditions of subdivision approval - Public open space - Condition requiring 10% of application area to be provided for public open space - Land to be ceded free of charge - Cash-in-lieu alternative approved in advance by Western Australian Planning Commission - Large residential blocks abutting outer edge of existing urban development of greater Geraldton area - Approved Structure Plan contemplating 10% ceding for public open space purposes - Long-standing policy of State to impose such a condition - Tribunal upholding condition in other cases - Whether a valid and reasonable condition - Whether condition justified - Expert evidence pointing to recreation demands and amenity expectations of future residents - Structure Plan detail to similar effect - Calculation of value of land affected - Statutory controls on both valuation of required land and expenditure of sums collected - Such statutory matters not within Tribunal's jurisdiction - Whether conservation purpose voids planning purpose - Interlocking nature of policies and statutory provisions and applicable planning framework - Tribunal upholding condition as imposed for a proper planning purpose, reasonably related to proposed subdivision and otherwise not unreasonable

Legislation:

Environmental Protection Act 1986 (WA), Pt IV Div 3
Planning and Development Act 2005 (WA), s 153, s 154, s 155
Residential Design Codes of Western Australia (2013)
Shire of Chapman Valley Local Planning Scheme No 2, cl 5.2.4, cl 5.22.3, cl 5.22.6.3, Table 2
Shire of Chapman Valley Town Planning Scheme No 1, cl 3.2.9

Result:

Condition under review upheld and review dismissed

Summary of Tribunal's decision:

The applicant, Mr Ross Williamson, proposes to subdivide land into lots of approximately 4,000m² in accordance with an approved structure plan, namely the Wokarena Heights Structure Plan. The land abuts some of the outer northern edge of existing urban development of the greater Geraldton area.
The respondent, the Western Australian Planning Commission, granted approval of the subdivision application subject to a number of conditions. One of those conditions required that an area of land representing 10% of the gross subdividable area be ceded free of charge to the State of Western Australia for the purpose of the provision of public open space.
There was a dispute between the parties in relation to whether the respondent's Development Control Policy 2.5 applied to the applicant's land. The Tribunal determined that it did. However, the applicant's argument that application of the respondent's Development Control Policy 2.5 meant that there should have been no requirement to provide land for public open space was not accepted. Development Control Policy 2.5 provides for the provision of land for public open space where it is considered desirable to do so.
The applicant argued that the condition requiring the provision of land free of charge had been imposed for an improper purpose, namely to raise the funds required to purchase land for conservation purposes. The Tribunal found that some of the public open space areas identified in the Wokarena Heights Structure Plan were chosen because of a wish to retain remnant vegetation in those areas, as well as to provide for public open space. On the evidence, the provision of public open space had a dominant proper planning purpose as well as a conservation purpose.
The applicant also argued that it would be improper to require developers within the Wokarena Heights development area to contribute the cash equivalent of 10% of their land because that amount of cash allegedly greatly exceeds the value of the land that has been identified in the Wokarena Heights Structure Plan as public open space. This argument was not accepted by the Tribunal because any cash-in-lieu contribution by the applicant (and other developers subdividing land in the Wokarena Heights development area) can only be imposed in accordance with the requirements of the Planning and Development Act 2005 (WA). The Planning and Development Act 2005 (WA) contemplates that cash contributions paid in accordance with s 153 of the Act may well exceed the amount of money required for the actual purchase of land for public open space. The Act closely regulates how that money is to be applied in connection with public open space.
The applicant argued that, if public open space was required, his proposed subdivision did not create a need for there to be as much as 10% of the gross subdividable land provided in public open space. The applicant has not offered any evidence that could provide a basis for a finding that some specified lesser amount of public open space would, as a matter of fact, be appropriate for the applicant's subdivision and the Wokarena Heights development area as a whole. There is therefore no factual basis on which the Tribunal can make a finding as to what amount of public open space should be required. Even if evidence of that type were provided, it would have to be viewed in light of the significant threshold requirement that the proposed subdivision be 'generally in accordance with' the Wokarena Heights Structure Plan. This and the uncontested evidence before the Tribunal suggests that such a task would be, to say the least, problematic for the applicant.
It is appropriate to have reference to the respondent's usual policies about the provision of public open space. The Tribunal has long accepted that the position in those polices, that 10% of gross subdividable land should be provided as public open space, is reasonable.
Importantly, in this case, the draft Shire of Chapman Valley Local Planning Scheme No 2 which is a seriously entertained planning proposal requires subdivision to be 'generally in accordance with' the Wokarena Heights Structure Plan. The Structure Plan requires the provision of 10% of the gross subdividable area as public open space when subdividing in accordance with the Structure Plan.
The Tribunal was satisfied that the condition had not been imposed for an improper purpose, that it was reasonably related to the applicant's proposed subdivision and that it was a reasonable requirement of the subdivision approval.
The Tribunal noted that what had been presented was a set of rational, consistent, interlocking, and long standing policies and practices underpinned by the statutory and other elements of the planning framework specifically applicable in the circumstances of the case. Those elements combined to generally encourage fairness, consistency and predictability in providing for and distributing the burdens of acquiring and improving public open space.
The decision of the respondent was therefore affirmed.

Category: B

Representation:

Counsel:

Applicant: In Person
Respondent: Mr T Pontre

Solicitors:

Applicant: N/A
Respondent: State Solicitor for Western Australia

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

Bluepoint Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 320
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Dalcorp Holdings and Town of Victoria Park [2011] WASAT 18
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98; (2007) 57 SR (WA) 255
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Nicholls and Western Australian Planning Commission [2005] WASAT 40; 149 LGERA 117
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Teo and City Of Stirling [2008] WASAT 55
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant in these proceedings, Mr Ross Williamson, owns 12.12 hectares of land at Lot 2, Wokarena Road, Buller, which is within the Shire of Chapman Valley (subject land). In March 2012, the applicant sought approval from the Western Australian Planning Commission (respondent) to subdivide the subject land into 26 lots. This application was later amended a number of times, with the final amendment seeking approval to subdivide the subject land into 25 lots between 4,000m² and 5,580 m², with the majority of the lots being at, or close to, 4,000m²in size.
In November 2012, the respondent granted approval of the subdivision application as finally amended, subject to 20 conditions. The applicant has sought review of the decision to impose one of those conditions, condition 13. That condition effectively requires that an area of land of at least 1.2 hectares (10% of the subject land) be ceded to the Crown (or State) free of charge for the purpose of the provision of public open space. An advice note relating to condition 13 stated that the respondent approved the provision of a cash contribution by the applicant in lieu of the provision for public open space, in accordance with s 153 of the Planning and Development Act 2005 (PD Act).
The applicant raises the rationale for and the validity of condition 13. The issue in these proceedings is, therefore, whether the decision to impose a condition requiring 10% of the subject land to be ceded and set aside for the purpose of public open space, is the correct and preferable decision in all of the circumstances.
For the reasons that follow, the Tribunal has affirmed the condition.

Subject land and its context

The subject land contains an existing dwelling in the northeast corner and is otherwise largely cleared land. The subject land fronts onto Wokarena Road and also abuts Richards Road to the east and the NorthWest Coastal Highway to the west. The subject land is one of 11 lots within the Shire of Chapman Valley (Shire) which are together described as the 'Wokarena Heights development area' (Precinct). The southeast end of the Precinct is part of the boundary between the Shire and the City of GeraldtonGreenough. Importantly, this part of the Precinct abuts some of the outer northern edge of existing urban development of the greater Geraldton area.

Planning framework

Town planning scheme

The subject land is currently zoned 'general farming' under the existing Shire of Chapman Valley Town Planning Scheme No 1 (TPS 1). In relation to this zoning, TPS 1 specifies, at cl 3.2.9, that:
In considering applications for Subdivision, Rezoning, or Planning Consent within this zone, Council shall in addition to the general provisions of the Scheme, have regard to:
(i) The specific provisions relating to this zone as laid down in the Zoning and Development Table.
(ii) The specific provisions relating to development within the Chapman, Greenough and Buller River Flood Plains as specified in section 3.1.17 of the Text.
(iii) The General Policy for Coastal Management as specified in section 3.2.8 of the Text.
(iv) The objectives detailed below, which are considered relevant by Council, in order to preserve and protect the integrity and maintain a proper balance within the General Farming Zone:
(a) the need to ensure that a legal right of vehicular access exists to any land, which is the subject of any application for Planning consent or Building License Approval;
(b) the need to ensure that the economic viability of rural land use generally is protected via support only for subdivision or re-subdivision which enables the retention or promotion of lot or location sizes, which relate to the predominant general farming activity, in any particular locality of the Shire;
(c) the need to preserve the rural character and rural appearance of the land included within this zone;
(d) the need to ensure that the services located in any particular area can meet any additional demands that a development proposal could generate;
(e) the need to preserve and protect the natural undeveloped land areas throughout the zone and to provide for the planting of trees and other suitable vegetation via the imposition of conditions on any Planning Consent issued, in order to assist in balancing the greenhouse effect, provide shade, prevent erosion, reduce salinity and provide habitats for native fauna.
The Zoning and Development Table in TPS 1 in relation to the General Farming zone indicates a number of permitted uses, including home occupation. The minimum lot area is required to be '[b]ased on locally acceptable Farm Units'. It is immediately apparent that the applicant's subdivision proposal may face significant difficulty if assessed mainly by reference to TPS 1.
However, both parties assert that the proposed Shire of Chapman Valley Local Planning Scheme No 2 (LPS 2) is a seriously entertained proposal and, as such, regard should be had (and considerable weight given) to the zoning of the subject land under LPS 2.
In Moore River Company Pty Ltd and Western Australian Planning Commission [2007] WASAT 98; (2007) 57 SR (WA) 255 the Tribunal, at [159], summarised the relevant principle (often described as the 'Coty' principle because it is said to stem from the decision in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 as follows:
In short, the principle is that where a draft planning instrument or policy has reached a stage that it constitutes a seriously entertained planning proposal, it becomes a relevant matter for consideration as to orderly and proper planning, and should be given such weight as is appropriate having regard to the four principal criteria … in making a planning decision to which the draft instrument or policy relates.
These four principal criteria are identified in Nicholls and Western Australian Planning Commission [2005] WASAT 40; 149 LGERA 117, at [59] are:
(1)The degree to which the draft addresses the specific application.
(2)The degree to which the draft is based on sound town planning principles.
(3)The degree to which its ultimate approval could be regarded as 'certain'.
(4)The degree to which its ultimate approval could be regarded as 'imminent'.
The Council of the Shire (Council) resolved to adopt the draft LPS 2 for advertising and it was subsequently referred to the Environmental Protection Authority (EPA). The EPA required LPS 2 to be assessed under Pt IV of Div 3 of the Environmental Protection Act 1986 (WA). This was done and, subsequently, the EPA made recommendations that were subject to a number of appeals. The position of the parties at the time of the hearing was that LPS 2 only needed to be endorsed by the Minister for Environment and the final version, with any modifications adopted by the Council, endorsed by the respondent and approved by the Minister for Planning. It was submitted that any modifications arising from any environmental considerations were unlikely to affect the subject land's status under LPS 2.
The Shire's website indicates that in fact the environmental appeals were determined by the Minister for Environment shortly before the hearing of these proceedings in June 2013. Following that, after receiving the determination from the Minister for the Environment, the Council adopted LPS 2 subject to modifications and forwarded that modified document to the respondent seeking endorsement and final approval of LPS 2 from the Minister for Planning.
I am satisfied that LPS 2 was, at the time of the hearing, and is now, a seriously entertained planning proposal that in all of the circumstances should be given considerable weight.
The subject land is zoned 'residential R2.5' under LPS 2. The range of zones available under LPS 2 includes Residential, Townsite, Development, Rural Residential, Rural Smallholding, Rural and various others. Table 2 of LPS 2, the Zone Development Table, specifies that the minimum lot area, effective frontage, maximum site coverage, maximum plot ratio, minimum boundary setbacks, minimum carparking spaces and minimum landscaping of the site in relation to Residential zoned land are to be by way of the standards found in Residential Design Codes of Western Australia (2013), except for non-residential development. In such circumstances the standards shall be as determined by the Local Government in each particular case. In relation to the RuralResidential and Rural Smallholding zones, the minimum lot area is to be '[a]s outlined in approved subdivision guide or structure plan'. The minimum boundary setbacks are specified in the Table and all other development standards are '[a]s determined by the Local Government in each particular case'.
Clause 5.2.4 of LPS 2 states that '[p]rior to the subdivision and development of land on the western and eastern side of Richards Road zoned Residential R2.5 a detailed structure plan shall be prepared pursuant to the provisions of clause 5.22 …'. At cl 5.22.3 of LPS 2 it is specified that '[t]he subdivision and development of land within a Structure Planning Area is generally to be in accordance with any structure plan that applies to that land'.
In Teo and City Of Stirling [2008] WASAT 55, at [50], the Tribunal explained that '[t]he determination of whether the proposed development of land within the Precinct is "generally in accordance with" the Agreed Structure Plan involves an assessment of fact and degree, in a town planning context.'

Structure Plan

The subject land is land to which the Wokarena Heights Structure Plan (Structure Plan) applies. The Structure Plan has been adopted by the Shire and endorsed by the respondent. The Structure Plan came into effect once approved by the respondent (cl 5.1 of Part 1 of the Structure Plan). However, its legal force is reliant upon LPS 2. Once LPS 2 comes into force, the Structure Plan will also have force and effect as if it were part of LPS 2, pursuant to cl 5.22.6.3 of LPS 2. The objective of the Structure Plan is 'to provide a statutory planning framework that is responsive to the site's location and environment and facilitates the coordinated development of R2.5 residential dwellings'. Clause 7.1 of Part 1 of the Structure Plan provides that '[p]ublic open space shall be located as per Plan 1 …'.
Part 2 of the Structure Plan is described as the 'Explanatory Section'. Clause 1.3 of Part 2 of the Structure Plan notes that the Greater Geraldton Structure Plan (GGSP), released in June 2011, was intended as an interim measure until local government has prepared new local planning strategies or district structure plans, and that the GGSP is also to be used as a basis for the preparation of wider strategic regional planning. The explanatory note goes on to state that the Structure Plan area is identified within the GGSP as 'future urban'.
At cl 3.1 of Part 2 of the Structure Plan it is explained that:
…
The proposed density, with lot sizes of 4,000 m², will complement the adjacent existing urban developments of Drummond Cove and Glenfield, and the rural residential development of Parkfalls. The proposed density provides an appropriate grading of density from urban development areas, reducing in scale to rural residential uses.
The residential use and proposed density provides an opportunity for alternative dwelling choice for those wanting large lot accommodation and reflection of a rural lifestyle in close proximity to the major regional centre of Geraldton.
…
The future development of the Buller Development Zone will provide supporting centre (retail and commercial) and community uses to support a higher density population. With the lower densities provided within the Wokarena Heights Precinct, these supporting uses are not considered necessary or viable. The retail and community needs of future residents in the Wokarena Heights Precinct will be met thorough adjacent development areas.

Importantly, cl 3.3 of Part 2 of the Structure Plan explains that:
Consistent with the requirements of Liveable Neighbourhoods, the structure plan proposes ten percent of the subdivisible area for public open space [POS] … The district and neighbourhood parks provide a range of passive and unstructured active recreational opportunities, incorporating protection and activation of conservation areas and water sensitive urban design.
As part of the design process, POS planning at Wokarena Heights will ensure universal access to benefit all members of the community.
…
POS 1, located at the primary entry tor the development area, is proposed to be a passive recreational space that works as an entry statement to the Wokarena Heights Precent.
… [T]he space will be an important part of the pedestrian link from Richards Road, into the Buller Development Zone, through to the coast.
…
In cl 3.8 of Part 2 of the Structure Plan it is said that:
No formal development contribution scheme is proposed for the Wokarena Heights Precinct. However, the LSP does provide for sharing of some infrastructure costs.
Public open space costs will be shared across the development area through implementation of cashinlieu provisions provided by the Planning and Development Act 2005.
…

Planning instruments and policies

The respondent contends that its policies, Development Control Policy 2.3 (DC 2.3) and Liveable Neighbourhoods, apply to the proposed subdivision of the subject land. The respondent relatedly contends that the subject land is zoned 'Residential' under LPS 2 and, as such, these policies, which are applicable to residential zoned land, apply to the proposed subdivision. The requirement that a developer must give up 10% of the land to be subdivided as public open space in subdivisions in residential areas has been consistently applied for many years and has been accepted as a reasonable requirement that is in accordance with proper planning principles.
The applicant contends that the policies relied upon by the respondent do not apply because, despite the label 'residential', the proposed subdivision of the subject land will result in lots that are in substance, because of their size, 'special residential' type lots. Therefore, the applicant submits, the respondent's Development Control Policy 2.5 (DC 2.5) is the more appropriate policy that applies in this case.
DC 2.3 provides, in its introduction, that it is aimed at preserving amenity and contribution to the quality of life in 'urban areas, including country towns'. Similarly, the Liveable Neighbourhoods Policy is described as 'an operational policy for the design and assessment of structure plans ... and subdivision, for new urban (predominately residential) areas in the metropolitan area and country centres, on greenfield and large urban infill sites'.
DC 2.5 has as its policy objectives the following:
•To provide for the creation of lots between 2,000 square metres and one hectare in suitable locations.
•To ensure that the use and development of such lots are subject to appropriate standards and controls.
•To protect the character and amenity of adjacent rural areas.
The majority of the lots to be created by the proposed subdivision of the subject land are 4,000m². This size of lot does fall within the type of lots that DC 2.5 is focused upon. In addition, it can be seen from the explanatory information provided in the Structure Plan (quoted above) that the Precinct was intended to complement the existing urban development on one side and the rural residential development on the other side. Again, this is a concept that is consistent with the objectives of DC 2.5.
The fact that LPS 2 has chosen to apply zoning which it labels as 'Residential' to the Precinct is a relevant factor. However, in considering the full relevance of the label 'Residential' as used in LPS 2, it is helpful to note that LPS 2 has 'Rural Residential' zones, 'Rural Smallholding' zones and 'Rural' zones as well as 'Residential' zones of various densities. LPS 2 does not use the term 'Special Residential' at all.
I am satisfied that DC 2.5 is applicable to the proposed subdivision. I consider that DC 2.3 and the Liveable Neighbourhoods Policy are also relevant because of the transitional nature of the Precinct between urban development and rural land. But where they are inconsistent, they will carry less weight in relation to the proposed subdivision than the more directly applicable DC 2.5.

Condition 13: requirement for 10% public open space

In Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57], McHugh J endorsed the tests for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury test) in the following terms:
A condition attached to a grant of planning permission will not be valid therefore unless:
(1)The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
(2)The condition reasonably and fairly relates to the development permitted.
(3)The condition is not so unreasonable that no reasonable planning authority could have imposed it.
In this case, the applicant asserts that none of these criteria have been met and, therefore, condition 13 of the subdivision approval is not a valid condition.

Purpose

The applicant asserts that the respondent imposed condition 13 of its subdivision approval for an improper purpose. The applicant's argument is, in essence, that the respondent's purpose in imposing the condition is to raise the money required to purchase or reserve the land that is labelled as 'POS 3' in the Structure Plan, in order to protect it for conservation purposes. In support of this argument, the applicant relies on the statement in the Structure Plan that POS 3 'incorporates and proposes the protection of remnant vegetation in the southeast of the precinct' and other similar statements in the Structure Plan. In addition, the applicant says that the note to condition 13, which indicates that a cashinlieu contribution in accordance with s 153 of the PD Act can be made, further supports his argument about the purpose of condition 13.
I accept that the location of some of the public open space areas identified on the Structure Plan were chosen because of a wish to retain remnant vegetation as well as to provide for public open space. This does not, however, mean that the requirement to provide public open space was imposed for an improper purpose. The mere fact that a space that is planned to be used for recreational purposes is also a space that requires a level of protection for conservation purposes, does not mean that the requirement to provide land for public open space is for an improper purpose. Cf Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181; Dalcorp Holdings and Town of Victoria Park [2011] WASAT 18 (Dalcorp), at [42].
If the provision of public open space has a planning purpose, then the respondent's decision in relation to whether it will accept cashinlieu, pursuant to s 153 of the PD Act, is not a matter that the Tribunal can review: Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 (Empire). Section 154 of the PD Act specifies how any money received under the Scheme provided for by s 153 of the PD Act is to be applied. One of the permissible applications of such money is the purchase of land for parks, recreation grounds or open spaces generally, and the improvement or development of those areas.
The applicant argued that, by analogy with the principles of unjust enrichment, it would be improper to require developers within the Precinct to contribute the cash equivalent of 10% of their land, because that amount of cash greatly exceeds the value of the land that has been identified in the Structure Plan as public open space. Even assuming the correctness of the 'valuations' supplied by the applicant, any cashinlieu contribution by the applicant (and other developers subdividing land in the Precinct) can only be required in accordance with the PD Act. Section 155 of the PD Act provides the sole mechanism for valuing land for the purpose of a cashinlieu contribution. The valuation exercise is required to be carried out in relation to the subject land and not by having regard to the value of the land that will ultimately be used for public open space. The PD Act clearly contemplates that cash contributions, paid in accordance with s 153 of the PD Act, may exceed the amount of money required for the purchase of land for public open space. If it were otherwise, there would be, arguably, no need for s 154 of the PD Act to closely regulate other permissible applications of that money.
The answer to the question whether a condition is imposed for a planning purpose is to be found by looking at the planning instruments and the planning authority's planning objectives for the locality, not just in what might be considered a general notion of what constitutes planning: Dalcorp at [26].
Mr Jason Gordon, a senior planning officer at the Department of Planning with considerable planning experience, provided a witness statement to the Tribunal and although he was present at the hearing, he was not subjected to any crossexamination. In his opinion, the provision of 10% of the gross subdividable area to which the Structure Plan relates is appropriate because, in his view, the lots are of insufficient size to cater for the full range of recreational needs of the public. It is also his opinion that prospective purchasers of land within the Precinct will expect a level of amenity and facilities equal to residential subdivision, given the zoning of the land and the location of the Precinct on the outskirts of the greater Geraldton northern urban corridor. Mr Gordon states that he anticipates that footpaths or cycle paths will be constructed around or through POS 3 to enhance the experience for future residents to enjoy the remnant vegetation.
No other qualified planner gave evidence at the hearing. Therefore, I am satisfied that the provision of public open space within the context of the applicant's proposed subdivision of the subject land is desirable and is in accordance with orderly and proper planning for the Precinct.
Turning to the extent of the public open space provided for in the Structure Plan, the respondent's policy DC 2.5 does not provide any indication as to what amount of public open space should be required where it is desirable to provide such public open space.
The applicant has not offered any evidence that could provide a basis for a finding that some specified lesser amount of public open space would, as a matter of fact, be appropriate for the applicant's subdivision and the Precinct as a whole. There is, therefore, no factual basis on which the Tribunal can make a finding as to what amount of public open space should be required. This means that it is appropriate to have regard to the respondent's usual policies about the provision of public open space in residential subdivisions, and in particular its policies DC 2.3 and Liveable Neighbourhoods. The Tribunal has long accepted that the position in those polices that 10% of gross subdividable land should be provided as public open space is reasonable: see, for example, Empire at [22]; Bluepoint Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 320 at [31] [32].
Importantly, in this case, LPS 2 requires subdivision to be 'generally in accordance with' the Structure Plan. While neither of those instruments as yet has legislative effect, they will be operative once LPS 2 is finally endorsed. In the absence of LPS 2 and the Structure Plan, the applicant would face serious impediments in subdividing the subject land at all, as the applicant's proposal seems to be materially inconsistent with the zoning of the land under the current TPS 1. As noted above, the relevant terms of LPS 2, and the fact that the Structure Plan requires provision of 10% of the gross subdividable area as public open space when subdividing in accordance with the Structure Plan, are matters which have considerable weight in assessing the proposed subdivision. Further, they are indicative of there being a proper planning purpose in imposing condition 13.
I am satisfied, therefore, that the requirement to provide 10% of the gross subdividable area of the subject land for public open space as a condition of the approval of the proposed subdivision was not imposed for an improper purpose.

Nexus

The applicant argues that even if some public open space is required a contribution of 10% is excessive and is not reasonable in the circumstances. He contends that, even if the increase in population caused by his subdivision creates a need for public open space, given the very large block sizes, they do not, and cannot reasonably be said to require 10% of the subject land to be given up as public open space.
As indicated above, the applicant has not put forward any evidence as to the level of recreational needs that could be said to be created by the proposed subdivision. The applicant, with respect, merely asserts, by reliance on the much larger size of the proposed lots compared with true 'urban' lots, and by reference to what he says is the limited value of the public open space provided for in POS 3 in the Structure Plan, that something much less than 10% would satisfy any need for public recreation or meeting spaces created by the proposed subdivision.
Even if evidence to support that assertion were to be provided, it would have to be assessed in light of the significant threshold requirement that the proposed subdivision be 'generally in accordance with' the Structure Plan. The uncontested evidence of Mr Gordon (which the Tribunal has accepted) suggests that such a task would be problematic for the applicant.
I will record, however, that the proposed subdivision, together with the rest of the anticipated development of the Precinct, will bring a greater density of people into the area. That increase in population, together with the location of the Precinct and its role as a transition from the adjacent urban development on one side and the remaining rural areas on the other side, creates a need for public open spaces. As identified in the Structure Plan, those spaces will serve recreation needs, will provide pedestrian access to the proposed adjacent development zone and will provide an entry statement to the precinct
I am satisfied that a need for public open space is created by the proposed subdivision as part of the Precinct as a whole. I find that the provision of 10% of the gross subdividable area as specified in the Structure Plan is founded in proper planning and does fairly and reasonably relate to the proposed subdivision.

Unreasonable - inconsistency with policy

The applicant's position is that, because the respondent's policy DC 2.5 applies, the respondent should have applied that policy unless there were exceptional reasons why it should not to do so. The applicant relies on cl 3.2.3 of DC 2.5, and says that, if the respondent had applied this policy it would not have required any open space to be provided for in the proposed subdivision of the subject land. The applicant contends that the Structure Plan requires 10% of land to be provided as public open space because it mistakenly applied, and relied upon, the public open space requirements in the Liveable Neighbourhoods Policy.

Clause 3.2.3(b) of DC 2.5 provides that:
Because of their spacious character and large lot sizes, the Commission does not specify a standard open space contribution for Special Residential zones. Land for public open space will be required, however, when the provision of recreational open space is considered desirable or when it can include an important topographical feature such as a creek, lake or group of trees which is to be retained as a recreation amenity for residents of the subdivision and the district as a whole.
While the Structure Plan does refer to the Liveable Neighbourhoods Policy when specifying the requirement for public open space (by indicating that the provision of open space in the Structure Plan is consistent with that policy), it also provides an explanation of the purpose of each of the planned open spaces. The public open space is intended to provide a range of passive and unstructured active recreational opportunities. POS 3, the public open space provided for on the Structure Plan that the applicant had the most difficulty with, is also intended to provide a source of attraction to the Precinct as a whole, with the provision of public art and the like. It also provides a visual and pedestrian link between the Precinct and the Buller Development Zone, which is to provide nearby retail and commercial facilities.
As can be seen on the Structure Plan, the subject land directly abuts POS 3 and is very close to the two other public open space areas provided. Therefore, the residents brought into the area by the proposed subdivision would be particularly well placed to utilise those potential recreational facilities.
While I am not, in this matter, reviewing the merits of the Structure Plan, I am satisfied that, for all of the reasons given in the Structure Plan, and taking into account Mr Gordon's evidence, the provision of public open space in the Precinct and in the proposed subdivision, is desirable. Therefore, the requirement for the provision of public open space as a requirement of the proposed subdivision is in accordance with policy DC 2.5.

Otherwise unreasonable

It is the case that the lots to be created by the proposed subdivision are quite large. The need for public open spaces created by what will be a smaller increase in population than what could be expected in higher density Residential zoned land may be notionally less than the need created by higher density development. This degree of difference may be ultimately marginal but, whatever is the case, I have no evidence upon which to determine that issue.
In the absence of any evidence that could provide a sound basis for concluding otherwise, it is reasonable to apply the long accepted and consistently applied policy (endorsed by the courts and this Tribunal) that, where public open space is to be provided, the amount of that open space should be 10% of the gross subdividable area.
I am satisfied that condition 13 is a reasonable requirement and therefore is not invalid under the third limb of the Newbury test.

Conclusion and final orders

In summary, the Tribunal has been presented with a set of rational, consistent, interlocking, and long standing policies and practices underpinned by the statutory and other elements of the planning framework specifically applicable in the circumstances of the case. Those elements combine to generally encourage fairness, consistency and predictability in providing for and distributing the burdens of acquiring and improving public open space. Taken together with relevant expert evidence they present, in effect, insurmountable hurdles in the way of the applicant succeeding in the present case.
Thus, for the reasons discussed above, I have concluded that condition 13 is a valid condition. The imposition of a condition of subdivision approval requiring that the applicant cede 10% of the subject land for public open space is the correct and preferable decision in all of the circumstances of this case.

Orders

The orders of the Tribunal are:
1.The application for review is dismissed.
2.The decision under review is affirmed.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER