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: