State Administrative Tribunal Act 2004 (WA), s 17, s 29(1)

Town Planning and Development Act 1928 (WA), s 20(1), s 20C, s 24(3), s 26(1)(a)(ii)

Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386

Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266

Lloyd v Robinson (1962) 107 CLR 147

Miriam Botman v Western Australian Planning Commission [2004] WATPAT 111

Newbury District Council v Secretary of State for the Environment [1981] AC 578

Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181

1 On 17 September 2004, the Western Australian Planning Commission ("the respondent") granted approval to Civil Technology for the subdivision of Lots 2, 801, 1298 (Pt - now Lot 803) and 1300 (Pt - now Lot 806) Chamberlain Street and Southern River Road, Gosnells ("the site"), subject to 37 conditions. These proceedings are an application for review, in accordance with Pt V of the Town Planning and Development Act 1928 (WA) ("the TPD Act"), of certain of these conditions, brought under s 26(1)(a)(ii) of the TPD Act. The instrument of approval also contained 12 paragraphs of "advice to applicant" from the respondent and the City of Gosnells ("the Council").

2 The site has an irregular shape and an area of approximately 9.22ha. It has a frontage of approximately 300m to Southern River Road and a frontage of approximately 150m to Chamberlain Street. Southern River Road is classified as a "District Distributor Road" under the Main Roads Functional Road Hierarchy (August 1999). According to the evidence of Mr Harris, an engineer who is employed by the Council as Manager of Technical Services, Southern River Road currently carries just over 8,000 vehicles per day. Chamberlain Street, which is a "Local Distributor Road", carries, on Mr Harris' evidence, approximately 2000 vehicles per day.

3 To the west of the site are three allotments, namely Lots 805, 800 and 802, which were removed from the site in 2004, and acquired by the respondent for the purposes of regional open space as a Foreshore Reserve. The section of Foreshore Reserve which immediately adjoins the site has an area of 1.79ha. This area and a large contiguous area to its west, north and south is reserved under the Metropolitan Region Scheme ("MRS") for Parks and Recreation ("the MRS Foreshore Reserve"). The Foreshore Reserve is centred on the Southern River which is generally approximately 60m from the western boundary of the site. A recent aerial photograph showed that most of the Foreshore Reserve was covered with trees. The section of Foreshore Reserve which adjoins the site forms part of an identified "Bush Forever" area.

4 The subdivision approved by the respondent comprised 99 lots with an average size of 642m2, a balance lot of 78m2, a reserve for public open space of 5,740m2 and roads. Vehicular access to the subdivision is proposed to be via a single entry from Chamberlain Street. An amended subdivision plan which the parties jointly proposed for approval by the Tribunal, and which incorporated certain of the conditions subject to which the respondent granted approval, increased the number of residential lots to 106, incorporated a larger commercial allotment at the corner of Chamberlain Street and Southern River Road, showed a 5.0m road widening dedication along the Southern River Road frontage, and slightly reduced the size of the reserve for public open space to 5553m2 ("the subdivision application"). The proposed public open space comprises approximately 6 per cent of the area of the site.

5 The site forms part of a 21.02ha, roughly triangular shaped area of land, which is bounded by Chamberlain Street to the north-east, Southern River Road to the south­east and the MRS Foreshore Reserve to the west. On 13 August 2004, this area was rezoned from "Rural" to "Residential Development" by Amendment 6 to the City of Gosnells Town Planning Scheme No 6 ("TPS 6"). The subdivision application, which had been lodged in anticipation of the rezoning of the site and adjoining land, remained pending before the respondent until the gazettal of Amendment 6 to TPS 6.

6 Clause 7.2 of TPS 6 provides, in part, as follows:

"7.2.1 The Council requires an Outline Development Plan for land zoned Residential Development before recommending subdivision or issuing planning approval for development or the use of any land. ...

7.2.3 Where there is an adopted Outline Development Plan, the subdivision and development of land is to generally be in accordance with the adopted Outline Development Plan ..."

7 Clause 7.3.4 of TPS 6 provides that an Outline Development Plan ("ODP") is to contain such detail as, in the opinion of the Council, is required to satisfy the planning requirements of the Outline Development Plan area and may include details of "proposed major land uses, including public open space". Clause 7.4 of TPS 6 contains detailed provisions in relation to the adoption and approval of ODPs. Clause 7.4.10 provides that the respondent is the approval authority in relation to ODPs.

8 An ODP was prepared by Civil Technology for the whole of the 21.02ha area of land ("the draft ODP"). According to the evidence of Mr Smit, a town planner who is employed as a Senior Policy Officer by the respondent, the draft ODP was assessed by the respondent concurrently with the subdivision application. The proposed subdivision is consistent with the draft ODP. In particular, the 5553m2 public open space proposed accords with the draft ODP. Indeed, this public open space is the only public open space depicted in the draft ODP on any of the land to which it relates.

9 Shortly after it approved the subdivision application, on 29 September 2004, the respondent wrote to the Council indicating that it was prepared to endorse the draft ODP "upon the matters identified in the attached table being satisfactorily addressed by way of modification to the text accompanying the ODP and the ODP itself". It does not appear that the draft ODP has been amended in the manner required by the respondent. The respondent has certainly not adopted an ODP in relation to the site under cl 7.4.10 of TPS 6.

10 Section 20(5) of the TPD Act provides that, in giving its approval to a subdivision application under s 20(1)(a), the discretion of the respondent is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration. Although I accept the submission made by Mr Bydder, counsel for the respondent, that, in consequence of s 20(5) of the TPD Act, it was within the planning discretion of the respondent to approve the subdivision application in the absence of an adopted ODP, approval of the subdivision application prior to the final formulation and adoption of an ODP for the site was, nevertheless, unfortunate. The purpose of an ODP, is to provide comprehensive strategic planning prior to the formulation, or at least approval, of specific subdivision or development applications in relation to land. Approval of the subdivision application in this case, prior to the adoption of an ODP, put the application "cart" before the comprehensive planning "horse". In practical terms, it has caused the applicants some confusion which was reflected in one of their arguments considered in these reasons below. Had the proposed subdivision come before the Tribunal in the form of an application for review of a refusal or deemed refusal of subdivision approval, the Tribunal would not have been inclined to grant approval in the absence of an adopted ODP. However, the Tribunal will not generally embark on a review of an approval when it is a condition that is the subject of review proceedings: Koltasz Smith & Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266 at 274 [47].

11 Although, in their notice of appeal, the applicants disputed a large number of conditions, at the commencement of the hearing the representatives of the parties announced that the majority of the originally disputed conditions had been resolved. Subsequently, the parties provided a set of agreed conditions.

12 The following three conditions remained in dispute:

"5. The proposed public open space reserve shown on the plan submitted by the applicants, being shown on the Diagram or Plan of Survey (deposited plan) as a "Reserve for Recreation" and vested in the Crown under section 20A of the Town Planning and Development Act, such land to be ceded free of cost and without any payment of compensation by the Crown. (LG)

6. The balance of 10 per cent public open space not provided as part of Condition 5 above, being provided in a position to be agreed between the subdivider and the Local Government, and shown on the Diagram or Plan of Survey (deposited plan) as a "Reserve for Recreation" and vested in the Crown under section 20A of the Town Planning and Development Act, such land to be ceded free of cost and without any payment of compensation by the Crown. (LG)

11. Satisfactory arrangements being made with the Western Australian Planning Commission for the upgrading of Chamberlain Street and Southern River Road to an urban standard where it abuts the application area. (LG)"

Condition 6 - Provision of 10 Per Cent Public Open Space

13 Condition 6 in effect requires the applicants to agree with the Council on the position within the site of an additional 4 per cent of the site area to be provided as public open space, in addition to the 6 per cent shown on the proposed plan of subdivision. By "advice note" 3, the respondent advised the applicants that it approved a cash­in­lieu contribution in relation to the additional four per cent public open space in accordance with s 20C of the TPD Act. I will return to this "advice note", and in particular to whether the Tribunal has power to grant approval under s 20C of the TPD Act or to endorse a note of the respondent's approval under that section, later in these reasons.

14 Statement of Planning Policy No 1 - State Planning Framework Policy ("SPP 1") is an approved statement of planning policy prepared under s 5AA of the TPD Act. In accordance with s 61(1) of the TPD Act, the Tribunal is required to have "due regard" to SPP 1 in the determination of these proceedings. Clause 2.4 of SPP 1 provides that the "State Planning Framework unites existing State and regional policies, strategies and guidelines within a central framework which provides a context for decision­making on land use and development in Western Australia". Clause 3.1 of SPP 1 provides that the State Planning Framework is "an amalgamation of all planning policies, strategies and guidelines of the State that provide direction on the form and methods of growth and development".

15 Clause 4.1 of SPP 1 provides that the plans, policies and strategies that form the State Planning Framework are listed in Pt B of the Policy, and that "each policy, strategy or guideline listed shall be called a 'provision' for the purposes of this Statement of Planning Policy". Section B5 of Pt B states that "operational policies are largely subdivision and development control policies which have been adopted by the Commission to guide its decision­making on subdivision and development applications". The operational policies listed in Pt B of SPP 1 which are of relevance to proposed conditions 5 and 6 are DC1.1 Subdivision of Land General Principles ("DC1.1"), DC2.2 Residential Subdivision ("DC2.2") and DC2.3 Public Open Space in Residential Areas ("DC2.3"). Operational policy DC1.7 General Road Planning ("DC1.7") is of relevance to proposed condition 11.

16 Clause 2 of DC1.1 includes the following policy objectives:

"• To ensure that the subdivision is consistent with orderly and proper planning and the character of the area.

• To facilitate development which achieves appropriate community standards of health, safety and amenity. ...

• To make appropriate arrangements for development contributions, where necessary and relevant, for the orderly and proper planning of the locality containing the subdivision.

• To make appropriate arrangements, where necessary for planning purposes, for the ceding or transfer of land."

17 Clause 3.9.1 of DC1.1 provides that the respondent may impose conditions requiring developer contributions, including the ceding of land for public open space.

18 DC2.2 contains more specific principles relating to residential subdivision. Clause 3.1.3 of DC2.2 states that all new residential lots shall be "convenient to areas of passive and active open space, provided in accordance with the Commission's policy on Public Open Space (DC2.3) in appropriate locations and configurations, having regard to the existing and proposed distribution of open space in the immediate locality".

19 Clause 3.1.1 of DC2.3 states that the respondent's "normal requirement in residential areas is that, where practicable, 10 per cent of gross subdivisible area be given up free of cost by the subdivider and vested in the Crown [under s 20A of the TPD Act] as a Reserve for Recreation". Clause 3.1.2 of DC2.3 states that the "10 per cent requirement" was derived from recommendations contained in the Stephenson­Hepburn Plan which established a standard of 3.36ha per 1,000 population (excluding school playing fields) for public open space. It was Mr Smit's unchallenged evidence that the "10 per cent requirement ... has been consistently applied since 1956" and that such a requirement at subdivision stage "is an important element of the Commission's planning response in meeting the recreational needs of the community".

20 In his submissions, Mr Bydder placed significant reliance on the following passage in the decision of Barker J, sitting in the Supreme Court of Western Australia, in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at 440 ­ 441 [24]:

"In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nevertheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach." (Emphasis added).

21 Mr Bydder submitted that, applying these principles to the present case, the relevant question is:

"Why should the policy of 10 per cent contribution for public open space not be applied?"

22 I accept that this is the relevant starting point, as the "10 per cent requirement" appears to be soundly based and has been consistently applied in this State for almost 50 years. Indeed, Mr McKellar, who represented the applicants, did not question this approach, but put forward essentially five arguments as to why the provision of 10 per cent of the area of the site for public open space was not necessary or reasonable.

23 First, Mr McKellar argued that the 10 per cent requirement is met by the 6 per cent proposed on site and by the availability of the regional open space in the part of the adjacent Foreshore Reserve which exceeds 30m from Southern River. This submission stemmed, in part, from an apparent misunderstanding of cl 3.2.2 of DC2.3. That clause provides, in part, as follows:

"The required width of a foreshore or coastal reserve varies according to the size of the water course or body of water and the condition of its banks, shore or coastline. As a general rule in the case of river or lake foreshores, a reserve of 30 meters' width is required, but each application is examined in detail. Where, for topographical, or other reasons, such as protection of a floodway, a greater or lesser width is considered necessary or desirable in the public interest, such a width may be specified."

24 Similarly, Sch 1 to Planning Bulletin No 18 (January 1997) ("PB18"), which sets out arrangements for developer contributions under the respondent's policies, states in cl 10, in relation to "foreshore reserves", that:

"Generally foreshore reserves are given up by the developer free of cost as follows:

- 30m wide for river and lake foreshore reserves (inclusive of any existing Crown foreshore reserve) or as site conditions require."

25 However, as cl 3.2.1 of DC2.3 states, the provisions in relation to "foreshore reserves" only apply "where a subdivision includes land abutting a watercourse (eg river or creek) or body of water (eg lake or the sea)". In this case, the subdivision does not include any of the land reserved under the MRS. Moreover, and in any case, cl 3.2.2 of DC2.3 and PB 18 provide that, while generally a 30m foreshore reserve will be required from developers where the subdivision abuts a watercourse, a greater width may be "considered necessary or desirable in the public interest". Finally, cl 3.2.2 of DC2.3 only concerns circumstances in which the respondent considers it appropriate to require an applicant for subdivision approval to provide and cede a foreshore reserve as a condition of subdivision approval.

26 Clause 3.2.2 of DC2.3 and cl 10 of Sch 1 to PB18 are inapplicable in the present case. The Foreshore Reserve adjoining the site, which was reserved in its current configuration under the MRS for regional open space, was acquired for consideration by the respondent from the predecessors of the current owners of the site.

27 However, in determining whether, in the facts and circumstances of the present case, a lesser provision than 10 per cent of the site area for public open space is appropriate, the fact, proximity and likely use of the whole of the contiguous Foreshore Reserve by future occupants of the proposed subdivision is clearly a highly relevant consideration. In this regard, I accept Mr McKellar's submission that the fact that the respondent gave consideration for the Foreshore Reserve is irrelevant. If, on the evidence, the Foreshore Reserve would be adequate, when taken together with the public open space proposed on site, to satisfy the planning principles reflected in DC2.3, the fact that it was paid for by the respondent matters not. I accept that, to use Mr McKellar's words, "it comes down to need not cost".

28 The only photographic evidence in relation to the Foreshore Reserve is the aerial photograph which shows that most of it is presently covered by trees. In particular, immediately adjoining the area proposed for public open space within the site is a heavily treed area of the Reserve. As Mr Smit explained while being cross-examined, as an identified "Bush Forever" area, the Foreshore Reserve is likely to remain as bushland. Cleared areas are likely to regenerate in time.

29 In his written evidence, Mr Smit noted that "public access to foreshore reserves is not essential and their primary purpose is to facilitate the effective management of the foreshore environs". He stated that "there is a significant difference between function of regional open space (including land reserved for Parks and Recreation under the Metropolitan Region Scheme), which is generally created outside the context of subdivision and is directed to meeting broader level recreation needs usually in conjunction with an environmental function, and the function of public open space, which is generally created in the context of subdivision and is available for local active or passive recreational needs". Mr Smit emphasised, in particular, that regional open space is "nearly always selected on the basis of environmental or special features", may be environmentally sensitive, may be subject to natural or seasonal environmental processes, for example flooding, has a regional or wider population catchment, and is hence subject to different management responsibilities between State and local government.

30 In contrast, Mr Smit's evidence was that local public open space "is nearly always determined on the basis of present and future residential or employment areas", closely correlates with housing and hence population distribution, is usually provided in different sizes that reflect the range and nature of leisure and recreation needs and opportunities, and has a local or neighbourhood population catchment.

31 Mr Smit's evidence in relation to the significant difference between regional open space and local open space in terms of function and character was not seriously challenged, nor was it contradicted. Rather, the applicants relied on the generalised and unsubstantiated statement of Mr McKellar that "the balance 30m of the Reserve land that is not foreshore is quite usable as passive or, if improved, as active open space". Although Mr McKellar has considerable experience in the land development industry, including in relation to engineering, quantity surveying and subdivisional matters, he is neither a town planner nor a recreation planner. He gave no specific evidence about how the Foreshore Reserve land could be used by residents of the proposed subdivision, nor did he address the critical question of how such use could be reconciled with the character and environmental qualities of the adjoining land.

32 I prefer the evidence of Mr Smit, who is a qualified and experienced town planner, to that of Mr McKellar. Plainly, while the Foreshore Reserve land could potentially be used for certain types of passive recreation, such as bush walking or picnicking, any such use would need to be carefully managed to preserve the ecological values of the watercourse and surrounding environment. Moreover, as Mr Smit said, public access to the reserve is not essential. Depending on the management regime ultimately adopted, it may not be allowed. Moreover, to the extent to which passive recreation might occur on the adjoining land, as Mr Smit noted, that land would serve a regional or wider population catchment than simply the site and adjoining land.

33 In the circumstances, I am not satisfied that the fact and proximity of the Foreshore Reserve compensates for the lack of adequate public open space on the site.

34 Second, Mr McKellar argued that the respondent "may look beyond the area of land which is precisely the subject of the subdivision application so as to determine if an area of open space is required and may, if possible as in [Lloyd v Robinson (1962) 107 CLR 147], see to it that the open space land which lies outside the application area is secured for planning purposes". There was considerable overlap between this argument and the first. Although I accept that it is appropriate, and indeed necessary, to look at the whole of the locality to determine whether the general policy of 10 per cent should not be applied, for reasons discussed above, the adjoining MRS reservation does not relevantly justify the limited extent of open space proposed on the site. In Lloyd v Robinson (supra), no question was raised as to the functional utility of the land required to be dedicated as public open space.

35 Third, Mr McKellar argued that there was adequate public open space to serve the needs of the subdivision by virtue of the public open space proposed on site when taken together with the public open space and Foreshore Reserve provided in a subdivision to the south of Southern River Road. The public open space provided as part of that subdivision was approximately 3.45 per cent in excess of the 10 per cent required for the gross subdivisible area in question. The applicants called no evidence at all to show that the Foreshore Reserve dedicated as part of the subdivision to the south of Southern River Road could be reasonably utilised by residents of that subdivision as public open space, much less that it could be so utilised by residents of the proposed subdivision. Furthermore, it is physically remote from the site and access would require crossing Southern River Road.

36 Because of the need to transverse Southern River Road and the distance to the public open space provided in the subdivision to the south (in the case of one park, approximately 200m, but in the case of the next most proximate park, approximately 500m from the closest boundaries of the site), I do not accept that the proposed subdivision would be "convenient to" that public open space as contemplated by cl 3.1.3 of DC2.2. Moreover, the applicants called no evidence to demonstrate that the public open space provided in the subdivision to the south has sufficient capacity to serve the proposed subdivision. There is simply no evidence as to what other residential properties (beyond the other subdivision) are reasonably proximate to the open space provided in that subdivision.

37 Fourth, Mr McKellar advanced arguments that more than 10 per cent is provided if one were to include in the "cell" the whole of the area subject to the rezoning in August 2004 and the contiguous Foreshore Reserve or alternatively the whole of the rezoned area and the extent of the Foreshore Reserve in excess of 30m from the riverbank. However, these arguments proceeded on the assumption that "it is not unreasonable to attribute a recreation function to half the Reserve Land". For reasons discussed above, this assumption was unsubstantiated and, on the evidence of Mr Smit and the aerial photograph, flawed.

38 Finally, in his written evidence, Mr McKellar placed significant reliance on the fact that the public open space proposed in the subdivision plan was consistent with the draft ODP (which his firm prepared). He relied on the decision of McGowan P in Miriam Botman v Western Australian Planning Commission [2004] WATPAT 111. That was a case in which the respondent had formally adopted an ODP which showed no public open space. At 16 [77], McGowan P observed that:

"The formal approval of the Outline Development Plan is no mere factor. Rather, it must necessarily involve an assessment in relation to a large area of development which itself provides for future progressive subdivision."

39 In coming to the conclusion that a challenge to a condition of subdivision approval, which required the dedication of land for public open space, should be upheld, McGowan P reasoned at 16 [78] that:

"The necessary expectation one would have thought would be that the approval of the ODP would predict with a degree of certainty and comfort that which was likely to be approved in the event that formal application for subdivision was lodged."

40 Miriam Botman & Anor v Western Australian Planning Commission (supra) is clearly distinguishable on the facts of the present case. Although the extent of public open space proposed on the site is consistent with the draft ODP, that ODP has not been adopted by the respondent. Indeed, in its letter to the Council dated 29 September 2004, in which it required modifications to the ODP in relation to a number of matters, the respondent stated as follows:

"The City has not demonstrated that the provision of local POS [Public Open Space] (as distinct from regional open space) in the area is sufficient and in appropriate locations to warrant a reduction in the POS depicted for the ODP area (with a residual 10 per cent provided by way of cash­in­lieu).

Accordingly, the ODP should be modified to include additional POS to 10 per cent with opportunity for such to be considered as part of the land use proposals for Lots 1301 and 1302."

41 Lots 1301 and 1302, which were referred to by the respondent in its letter to the Council, constitutes most of the remainder of the land the subject of the draft ODP. Although, as discussed in the introduction to these reasons, it was unfortunate that the respondent approved the subdivision when the comprehensive planning in the form of the ODP had not yet been finally determined, in the absence of approval of the draft ODP by the respondent, the applicants could not have had a reasonable expectation that the public open space shown on the subdivision plan would be sufficient.

42 The Tribunal has not, therefore, been satisfied that it is unnecessary or unreasonable to require the applicants to provide an additional 4 per cent of the site area as public open space. This should be provided by way of addition to the public open space proposed on site or by way of pocket parks within the site.

43 During the proceedings, Mr McKellar advocated an alternative condition to condition 6 which would require the applicants to expend 4 per cent of the value of the site, which he asserted was approximately $105,000, on the improvement of the public open space area proposed on the subdivision plan. He was particularly concerned that, if the Tribunal were to impose condition 6 and agree to the applicants providing a cash­in­lieu payment for the additional 4 per cent, the Council would spend the monetary value of the 4 per cent on the purchase of land for parks in the locality, but to the north of Chamberlain Street, or with the approval of the Minister for Planning and Infrastructure under cl 4.3.5(c) of DC2.3, on the improvement or development of parks north of Chamberlain Street.

44 I accept that it would be inappropriate to expend money provided in lieu of an open space provision in relation to the site on the purchase or development of parks outside the land the subject of the draft ODP. This is because the land the subject of the draft ODP is essentially an "island" which is physically separated from other areas by distributor roads and regional open space.

45 However, in my opinion, the applicants' alternative condition is inappropriate, because the Tribunal has not been satisfied that anything less than a provision of 10 per cent public open space on site is appropriate in the circumstances of this case. Once an area or areas constituting 10 per cent of the area of the site have been vested in the Crown, it will be the Council's obligation to adequately develop that area or areas as functional passive and active open space.

Condition 5 ­ Provision of the Public Open Space on Site Free of Cost

46 In his written evidence, Mr McKellar argued that it was unreasonable to require the applicants to "give up the whole of the local open space in the area of the proposed ODP at their cost". As noted above, the area of public open space shown on the proposed plan of subdivision for the site, which constituted approximately 6 per cent of the area of the site, was the only open space identified on the draft ODP. Mr McKellar argued that, because the owners of the remainder of the land in the draft ODP were not proceeding with the subdivision of their land, the applicants in this case should only be required to give up a proportionate amount of the public open space shown on the proposed plan of subdivision free of cost, the Council should pay the applicants for the portion of the proposed public open space attributable to the remainder of the land the subject of the draft ODP, and should recoup that cost once the remainder of the draft ODP land has been developed.

47 However, the Tribunal has not been satisfied that anything less than 10 per cent of the site should be provided for public open space. This 10 per cent should be provided free of cost to serve the recreational needs of the future population of the site.

48 As noted earlier in these reasons, the respondent included an "advice note" at the conclusion of the conditions which it imposed on the subdivision in relation to a cash­in­lieu contribution. The advice note was in the following terms:

"In respect of Condition 6 of this approval, the Commission hereby approves of a cash­in­lieu contribution in accordance with section 20C of the Town Planning and Development Act 1928."

49 The respondent no doubt included such an "advice note" at the conclusion of the conditions which it imposed on the basis that cl 4.3.4 of DC2.3 states that:

"In cases where the Commission considers that it may be appropriate to use these provisions, the applicant will be so advised in a footnote to the Commission's letter of approval."

50 The parties approached the hearing of these proceedings on the basis that the "advice note" was in some way before the Tribunal for consideration. Thus, as noted above, the applicant put forward an alternative condition so as to avoid payment of monies to the Council which might be used to purchase or, with the Minister's approval, upgrade public open space outside the site.

51 Section 20C(1) of the TPD Act provides as follows:

"Where the Commission has approved a subdivision of land upon condition that portion thereof be set aside and vested in the Crown for parks, recreation grounds or open spaces generally, if the local government in whose district the portion is situated and the Commission approves, the owner of the land may, in lieu thereof, pay to the local government a sum that represents the value of the portion."

52 Section 17 of the State Administrative Tribunal Act 2004 ("the Tribunal Act") provides, in part, as follows:

"17. What comes within review jurisdiction

(1) If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. ...

(3) Where subsection (1) ... applies the decision is a "reviewable decision" for the purposes of this Act."

53 Section 29(1) of the Tribunal Act provides as follows:

"The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision­maker in making the reviewable decision."

54 In my opinion, the decision of the respondent to approve a cash­in­lieu payment under s 20C of the TPD Act did not involve the exercise of a discretion by the respondent "in making the reviewable decision", within the meaning of those words in s 29(1) of the Tribunal Act. The "reviewable decision" in the present case was the decision of the respondent to require the applicant to comply with certain conditions the respondent thought fit to impose before approving the plan of subdivision: TPD Act s 24(3). It is apparent from the terms of s 20C of the TPD Act that the respondent's discretion to approve a cash­in­lieu payment only arose where it "has approved a plan of subdivision of land upon condition that portion thereof be set aside and vested in the Crown". In other words, the respondent's discretion under s 20C of the TPD Act to approve a cash­in­lieu payment only arose after, and in consequence of, the exercise of its discretion under s 24(3) of the TPD Act to require the applicant to comply with conditions before approving the plan. As the discretion to approve a cash­in­lieu payment was not exercisable by the respondent "in making the reviewable decision", the Tribunal does not have power to exercise that discretion in its review of the relevant "reviewable decision" under s 29(1) of the Tribunal Act. Moreover, as neither s 26 of the TPD Act nor any other provision of an enabling Act gives the Tribunal jurisdiction to review the respondent's decision to approve a cash­in­lieu payment, that decision is not a "reviewable decision" amenable to the Tribunal's review jurisdiction.

55 However, having heard evidence presented on the basis that the decision to approve a cash­in­lieu payment was somehow before the Tribunal for review, I do not consider that permitting a cash­in­lieu payment for public open space is appropriate in the present case. As noted above, the site forms part of a larger "island" area, separated from the surrounding locality by a District Distributor Road, a Local Distributor Road and a substantial Foreshore Reserve. Although there is merit in Mr Bydder's submission for the respondent that a cash­in­lieu payment would permit some flexibility by allowing, with the approval of the Minister, the acquisition by the Council of additional land for public open space on other land within the draft ODP area, it was the uncontested evidence of Mr McKellar that the owners of the other land "are currently not proceeding to subdivide".

56 This significantly limits the parts of the other land which could be purchased by the Council for open space which is accessible to residents of the subdivision. Moreover, purchase of land by the Council on the adjoining properties prior to the formulation and approval of subdivision applications in relation to those properties might undermine the orderly and proper development of the remainder of the land the subject of the draft ODP.

57 In these circumstances, had the question of agreement to a cash­in­lieu payment been within the jurisdiction of the Tribunal, the Tribunal would have declined to grant such approval.

Condition 11 ­ Upgrading of Roads to "an Urban Standard"

58 Condition 11 was proposed by the Council. The term "urban standard" is not defined in any of the planning or resource documents relied on by the respondent. Mr Harris said in oral evidence that, in his experience, the term "urban standard" required kerbing, drainage, lighting to the Australian standard and resealing. He considered that Chamberlain Street was already at an "urban standard", although the lighting would not meet current Australian standard. It became apparent during the hearing that what the Council sought in relation to Chamberlain Street was not, therefore, an upgrade to an "urban standard", but rather a contribution of $10,000 towards an (already) programmed resurfacing of Chamberlain Street in 2007/2008.

59 It was Mr Harris' evidence that Southern River Road, where it adjoined the site and to the south of the site, was "of rural standard" comprising a sealed roadway of 9m in width, with no kerbs, drainage or lighting. He considered that the pavement was in sound condition, but would require resurfacing in the near future, as it was 15 years old. Mr Harris said that a section of Southern River Road to the north of the site, where residential subdivisions had already taken place, had been constructed to an urban standard. Mr Harris did not say, however, whether the cost of constructing Southern River Road to "an urban standard" to the north of the site had been funded by developer contributions or by general rates.

60 It was the applicants' case that condition 11 could not be validly imposed, because it offended the second test identified in Newbury District Council v Secretary of State for the Environment [1981] AC 578 for the validity of a planning condition, namely that it must fairly and reasonably relate to the subdivision or development in question. In Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181, a case concerning the review of a condition of subdivision approval which required that an existing unsealed road be upgraded and sealed, the Town Planning Appeal Tribunal held at 186 as follows:

"The test of the validity and scope of a condition in this State is whether it fairly and reasonably relates to the development. The decision of [Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 58 ALJR 386], although in the context of Queensland legislation, stands for the proposition that should have application in Western Australia: the condition can be said to reasonably relate if it arises from changes precipitated by the development or subdivision. If it does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree."

61 Mr Harris, and the respondent, relied on a number of policy and resource documents in support of condition 11. DC1.7, which was published by the respondent in 1998, established requirements for land contributions and the construction by subdividers of various categories of roads. Section 3.2 of DC1.7 is entitled "Upgrading and Construction of Existing Roads". Clause 3.2.1 provides as follows:

"Existing roads shall be required to be constructed or upgraded as a condition of subdivision, where the Commission and the road authority agree that the subdivision should not proceed unless the construction or upgrading occurs. In imposing this condition the Commission and the road authority should be satisfied that the existing roads are either substandard or inadequate to accommodate the additional traffic generated from the subdivision and associated development."

62 Section 3.3 of DC1.7 is entitled "Contributions for Major Roads (Other than Subdivisional Roads)". This section of DC1.7 includes the following provisions:

"3.3.1 This section applies to primary and district distributors which are not subdivisional roads as determined by the Commission. These include regional roads reserved in the Metropolitan Region Scheme.

3.3.2 The Commission will normally require as a condition of subdivision that major subdivisions, particularly in broadacre areas released on the urban fringe, cede land for district distributor roads to the Crown free of cost and contribute to the construction of these roads. ...

3.3.4 The construction contributions for district distributor roads will normally include the earthworks for the whole road reserve, the construction of one carriageway (two lanes) and associated drainage facilities. In addition grade separated pedestrian crossings and a dual-use path along one side of the road may be required where these facilities accord with proposals for the overall structure planning for this area."

63 Schedule 1 of PB18 identifies the "State Cost", the "Developer Cost" and the "Council Cost" in relation to various categories of infrastructure. Clause 6.2 of Sch 1 to PB18 concerns "District Distributors". That clause states that only the developer and the Council bear a cost in relation to such roads. The "Developer Cost" is as follows:

"Land given up free plus initial stage of road construction: all earthworks, two lanes unkerbed, dual use path on one side only, grade separated pedestrian crossings where required, drainage."

64 The "Council Cost" for "District Distributors" is as follows:

"Final stage of road construction where traffic demand warrants including second carriageway, full drainage, upgrading of initial carriageway, bus bays, turning facilities, lighting, all kerbing and landscaping."

65 The Institute of Municipal Engineering Australia (now the Institute of Public Works Engineering Australia) published Guidelines for Subdivisional Development ("the IMEA Guidelines") in October 1998 which have been, on Mr Harris' evidence, "implemented by the [Council] since their inception". Clause 1.8 of the IMEA Guidelines provides, in part, as follows:

"Where it is considered that existing roads, whether directly abutting the subdivision or not, are substandard or inadequate to accommodate the expected additional traffic generated by the subdivision, the local government may require as a subdivision condition the upgrading of that existing road in accordance with Western Australian Planning Commission Policy No DC1.7 (3.2).

Generally, where a proposed subdivision abuts an existing road reserve containing a substandard road, the local government will require that section of the road contained within the one-half of the road reserve fronting the subdivision to be upgraded to the standard of that class of road. The upgrading works shall be undertaken prior to the clearance of the subdivision.

In cases where the whole road requires upgrading as a condition of subdivision and the development is located on one side of the road only, (eg. in situations where there is no existing road and it would be impractical to build one-half of the existing road) the cost of this work will generally be shared in accordance with a negotiated cost share agreement between the local government and the developer of the land. The local government's portion shall be funded in accordance with the repayment terms of the agreement.

Every attempt shall be made to partially or wholly upgrade substandard roads fronting new subdivisions. ... "

66 The Council has adopted Subdivisional Development Guidelines (1992) and Policy 2.4.5 ­ Upgrading Existing Roads as a Condition of Subdivision. The relevant provisions of these documents are consistent with the IMEA Guidelines and, through the imposition of conditions of subdivision approval, require that substandard roads fronting new subdivisions should be upgraded at the cost of the subdivider.

67 Both Mr Harris and Mr Smit contended that, whereas cl 3.2.1 of DC1.7, which concerned the upgrading and construction of existing roads, required that the respondent be satisfied "that the existing roads are either substandard or inadequate to accommodate the additional traffic generated from the subdivision", s 3.3 of DC1.7, which concerned contributions for major roads, such as Southern River Road, did not (expressly) require the respondent to form such an opinion. However, as the Town Planning Appeal Tribunal recognised in Perrymead Investments Pty Ltd v Western Australian Planning Commission (supra) at 187, the requirement for satisfaction on the part of the decision­maker in cl 3.2.1 of DC1.7 is a recognition of the need for there to be "a nexus between road upgrading and the traffic generated by the subdivision". Notwithstanding the absence of an expressly stated requirement for the decision­maker to be satisfied that a subdivision or associated development creates or contributes to the need for primary and district distributors, a condition premised on s 3.3 of DC1.7 is still subject to the general law requirements for the validity of a condition of planning approval. Such a condition must fairly and reasonably relate to the subdivision or development in question.

68 It was Mr Harris' uncontested evidence that the subdivision in question will result in an increase in traffic of approximately 800 ­ 1000 vehicle trips per day in the surrounding road network. As all traffic would enter and exit the subdivision via Chamberlain Street, the subdivision will result in an increase in traffic volume of 50 per cent in that street. Mr Harris did not suggest, however, that Chamberlain Street, as presently constructed, would be unable to accommodate the increased traffic generated by the subdivision, nor that traffic safety or convenience would be compromised by the additional traffic. He did not suggest that the reasons for the programmed resealing of Chamberlain Street in 2007/2008 (which he did not identify) would be exacerbated by the additional traffic, nor that the additional traffic would contribute to the need for resealing.

69 In relation to Southern River Road, Mr Harris' evidence was that an increase of 800 ­ 1000 vehicle trips per day over the existing 8000 vehicle trips per day would have a "noticeable effect" on that road. However, he did not indicate what proportion of the 800 ­ 1,000 vehicle trips per day generated by the subdivision would proceed from the subdivision to Southern River Road, much less what proportion of the traffic generated by the subdivision which would reach Southern River Road would then proceed south­west along the section of Southern River Road which is adjacent to the frontage of the site. He did not suggest that Southern River Road, as presently constructed, did not have the capacity to adequately cater for the additional traffic generated by the subdivision. He did not suggest that the additional traffic generated by the subdivision would compromise traffic safety or convenience in Southern River Road. Although he indicated that the pavement of Southern River Road, while in sound condition, will require resurfacing in the near future, he did not suggest that the additional traffic generated by the subdivision along the frontage of the site would give rise to or increase the need for such resurfacing.

70 Moreover, the respondent presented no evidence to suggest that the traffic generated by the subdivision would, whether in itself or cumulatively, create or contribute to the need for any of the elements which, on Mr Harris' evidence, constitute "an urban standard" of road construction, namely kerbing, drainage, lighting and resealing, in the interests of traffic safety or convenience, in relation to either road in question. An analysis might have been presented of the cumulative contribution of the traffic generated by the subdivision in the context of total traffic likely to be generated from the locality once fully developed, factored back to the present subdivision. However, no such analysis was presented.

71 The only evidence presented by the respondent to establish a relevant nexus between the disputed condition and the subdivision was Mr Harris' written evidence that:

"There would be a community expectation that in purchasing a residential block adjacent to a road such as Southern River Road, the road would be constructed to an urban standard consistent with how the rest of Southern River Road has developed. In particular, purchasers of blocks facing Southern River Road would expect the verge area to be clear, the road kerbed and drained and the verge area not to be functioning as a drainage runoff area for the road."

72 No empirical or other basis was put forward to support Mr Harris' assertion about "community expectation". Putting aside the fact that only six out of 106 proposed residential lots would have direct frontage to Southern River Road, and assuming that Mr Harris' assertion about "community expectation" was substantiated, it is not a sufficient nexus for the imposition of a condition that the subdivider must upgrade a functionally adequate "rural standard" road to an "urban standard" road. The condition that Southern River Road be upgraded to an urban standard where it abuts the application area does not, on the evidence presented, fairly or reasonably relate to the proposed subdivision. The proposed condition is, therefore, beyond power.

73 During his oral evidence, Mr Harris drew particular attention to the word "substandard" in cl 3.2.1 of DC1.7 and stated that Southern River Road along the frontage of the site was "substandard", because it was a rural standard road in an area which, following the subdivision, will be an urban area. Following this evidence, in his submissions, Mr Bydder also drew particular attention to the word "substandard" in cl 3.2.1 of DC1.7.

74 For reasons of both grammar and logic, the words "to accommodate the additional traffic generated from the subdivision and associated development" qualify the word "substandard" in cl 3.2.1 of DC1.7 in the same way as they qualify the word "inadequate". An existing road might, for example, be "substandard ... to accommodate the additional traffic generated from" a proposed subdivision, where the quantity of traffic generated by the subdivision, whether in itself or cumulatively with other traffic then existing or likely to exist once an area is fully developed, requires a higher standard of road. An existing road might, for example, be "inadequate to accommodate the additional traffic generated from the subdivision", where the traffic generated from the subdivision, whether in itself or cumulatively with existing or likely traffic, gives rise to a need for a wider or thicker road pavement. Neither the terms of cl 3.2.1 nor the general law requirement of nexus would permit the respondent or the Tribunal on review to impose a requirement on subdivision approval that a "rural standard" road be upgraded to an "urban standard" road on the simple basis that the (functionally adequate) "rural standard" road is "substandard" in the context of an urban subdivision. Although the IMEA Guidelines refer to "a substandard road", this reference follows the paraphrasing of the relevant consideration in cl 3.2.1 of DC1.7.

75 Furthermore, even if the disputed condition were within power in relation to Southern River Road, it would not be reasonable to impose it. The requirements of the condition are well in excess of that which is contemplated by s 3.3 of DC1.7 concerning contributions for major roads and the associated provision in Sch 1 to PB18. The only element of "an urban standard" identified by Mr Harris which is required by those provisions (and which is not already proposed as part of the subdivision or required by conditions of approval which are not in dispute) is drainage facilities. Other elements of "an urban standard", particularly lighting and kerbing, are clearly identified as "Council Cost" in Sch 1 to PB18.

76 Chamberlain Street, as noted above, is already at an "urban standard". The condition, therefore, has no purpose in relation to that street. The respondent did not seek to establish that the subdivision created or contributed to the need for the programmed resealing. Accordingly, the evidence does not support any road upgrading condition in relation to Chamberlain Street.

77 As noted in the first paragraph of these reasons, at the end of its letter of approval to the subdivision application, the respondent included 12 paragraphs of "advice to applicant" from both itself and the Council. With one exception, these paragraphs were repeated in the document reflecting agreed conditions of approval which the parties requested the Tribunal to endorse following its determination of the disputed conditions.

78 Such advice notes, although commonly appended to subdivision and development approvals in this State, have no statutory status under the TPD Act or any other legislation. A decision to give such "advice" is not a "reviewable decision" for the purposes of the Tribunal Act. Moreover, any function or discretion which the respondent had to give "advice" was arguably not "exercisable by [it] in making the reviewable decision" and is, therefore, not available to the Tribunal under s 29(1) of the Tribunal Act. In consequence, the Tribunal does not have power, in its determination of review proceedings concerning a subdivision or development application, to review, endorse or give "advice".

79 Moreover, in my opinion, even if the Tribunal had power to give or endorse "advice", it would be inappropriate to do so, for each of the following reasons. First, if an "advice note" sets out requirements which are material to a subdivision or development, the requirement should be contained in a condition of approval, which is enforceable as such. Second, if advice is given about one aspect, but not about another aspect of a subdivision or development, the whole process of giving "advice" is likely to mislead those it is intended to assist. Third, the "advice" is that of the respondent, or in the present case, of the respondent and of the Council, not that of the Tribunal.

80 On the evidence presented in this review, the Tribunal is not satisfied that the public open space area proposed within the site is an adequate area of open space to meet the needs of the population of the proposed subdivision. Although some use might conceivably be made of the adjoining Foreshore Reserve for some public open space purposes, the evidence does not enable a conclusion to be drawn that this is even likely. Moreover, any such use, if permitted, is likely to be carefully controlled and managed, so as not to compromise the ecological values of the watercourse and surrounding environment. Furthermore, insofar as the adjoining Foreshore Reserve might be available for future use as public open space, it would serve a wider catchment than the site.

81 The areas of public open space provided as part of a subdivision to the south of Southern River Road are not convenient to the site, because of the need to traverse a District Distributor Road and because of distance.

82 Although the public open space proposed within the site is consistent with the draft ODP, that document has not been approved by the respondent, and indeed was required to be modified by the respondent consistently with its position in this review.

83 In consequence, the Tribunal is not satisfied that conditions 5 and 6 should be deleted from the approval. On the evidence, the area of public open space proposed within the site and an additional area or areas comprising a total of 10 per cent of the site area is required to provide for the passive and active recreational needs of the incoming population.

84 The Tribunal has determined that the proposed condition that Chamberlain Street and Southern River Road be upgraded to an urban standard along the frontages of the site does not fairly or reasonably relate to the proposed subdivision, and is accordingly beyond power.

I certify that this and the preceding 26 pages comprise the reasons for decision of the Tribunal.

___________________________

Mr David R Parry

Senior Member