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[2008] WASAT 100
General information, not legal advice.
State Administrative Tribunal (WA)
2008-05-13
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : LEE and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 100
Town planning - Subdivision application - Preliminary issue - Whether subdivision application is capable of approval - Whether approval of subdivision conflicts with provision of local planning scheme - Provision of local planning scheme precludes subdivision of unsewered land - Sewer not available or feasible - Whether condition requiring arrangement with local government for provision of sewer is appropriate and reasonable - Whether approval is consistent with general intent of local planning scheme - Whether local government has not made any objection
Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme, cl 16, cl 23, cl 24, cl 41, cl 42
Approval of the proposed subdivision would conflict with cl 23 of the Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme
Proposed subdivision is not capable of approval unless local government has been given a copy of the plan of subdivision under s 142 of the Planning and Development Act 2005 (WA) and has not made any objection under that section
1 The State Administrative Tribunal was called upon to determine a preliminary issue as to whether a proposed subdivision is capable of approval.
2 The Tribunal determined that approval of the proposed subdivision would conflict with a provision of a local planning scheme that precludes subdivision of unsewered land. The Tribunal also determined that none of the available exceptions that would allow approval is established on the evidence.
3 However, the Tribunal stopped short of determining that the subdivision application is incapable of approval. The proceedings were listed for a directions hearing in order to enable the Western Australian Planning Commission to establish its assertion that the relevant local government has objected to the subdivision. If this assertion is established, then the subdivision is incapable of approval.
4 However, if the assertion is not established, then the plan should be referred to the local government for any objections and recommendations. If this occurs, and the local government objects to the subdivision, then the subdivision is incapable of approval. However, if the local government does not object, then the subdivision is capable of approval in the exercise of planning discretion.
5 On 13 March 2007, Mr Rodney Lee applied to the Western Australian Planning Commission (Commission) for approval under s 135 of the Planning and Development Act 2005 (WA) (PD Act) to subdivide Lot 108 David Road, Waggrakine (site) so as to excise a 2082 square metre lot containing a recently constructed dwelling serviced by an on-site effluent disposal system. Reticulated sewerage is not available in the area and, according to the relevant local government, the City of Geraldton-Greenough (City), extending reticulated sewerage infrastructure to the area is not feasible.
6 On 27 June 2007, the Commission refused to grant subdivision approval. On 31 October 2007, the Commission refused Mr Lee's request for reconsideration. On 26 November 2007, Mr Lee applied to the State Administration Tribunal (Tribunal) under s 251(3) of the PD Act for review of the Commission's decision not to reconsider its earlier decision.
7 The parties have identified a preliminary issue in the proceedings as to whether the proposed subdivision is capable of approval having regard to s 138 of the PD Act and cl 23, cl 24, cl 41 and cl 42 of the Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme (TPS 3).
8 The President of the Tribunal has formed the opinion under s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues and has referred the preliminary issue and any consequential determination for decision by me.
9 Section 138(2) of the PD Act provides that, subject to subsection (3), in giving its approval under s 135, the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and "is not to give an approval that conflicts with the provisions of a local planning scheme". Section 138(3) of the PD Act sets out seven circumstances in which the Commission may give an approval under s 135 that conflicts with the provisions of a local planning scheme. (See generally in relation to these sections Landpark Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 130 and Western Australian Planning Commission and Diggins [2008] WASAT 9.)
10 The Commission contends that the proposed subdivision is incapable of approval, because approval would conflict with cl 23 of TPS 3. Clause 23 states as follows:
"Subject to the next succeeding clause [that is, cl 24] a person shall not -
(1) subdivide land unless there is a sewer to which all new lots in the proposed subdivision may be connected; or
(2) occupy a building unless it is connected to a sewer."
"(1) Notwithstanding that a sewer is not available, if the Council certifies in writing that it is of the opinion that the nature of the soil is sufficiently adsorptive to permit the efficient operation of an apparatus for the bacteriolytic treatment of sewerage, a person may, with the approval of the [Commission] in accordance with the [PD] Act and subject to the provisions of the Scheme (other than Clause 23), subdivide land so as to create a new lot within the boundaries of which is situated a dwelling house which was erected before the coming into operation of the Scheme; or
(2) Upon obtaining the written consent of Council, a person may, with the approval of the [Commission] in accordance with the [PD] Act and subject to the provisions of the Scheme (other than Clause 23) undertake the initial subdivision of their land so as to create not more than one more lot.
(3) Consent of the [Commission] to the subdivision of land in accordance with subclauses (1) and (2) requires the person prior to obtaining the final approval of the [Commission] to the subdivision paying to the Council or appropriate Government Department the cost of sewerage headworks and reticulation assessed by the Council to service the lot calculated on average charges applying at the time of subdivision.
(4) The Council of appropriate Government Department shall apply the money received under subclause (3) to the provision of a sewer to service the new lot when it becomes available. Surplus monies (if any) shall be applied in further improvements in the Scheme Area."
12 Mr Lee contends that approval of the proposed subdivision would not conflict with cl 23 of TPS 3, because cl 24(4), when read with cl 24(3) and par (c) of cl 41:
"imposes a mandatory obligation on either the 'Council' [ie the Shire [of Greenough]] or 'appropriate Government Department' [ie Water Corporation] to collect, administer and expend 'the cost of sewerage headworks and reticulation assessed by the Council to service the lot' (as Scheme Costs) for the express purpose of providing 'a sewer to service the new lot when it becomes available' so that the subdivision proposed by [Mr Lee] can be approved."
13 Clause 41 of TPS 3 identifies the "Scheme Costs" as the costs or estimated costs of items including the following:
"The costs (if any) to the Council of the sewerage works necessary for the connection of the land in the Scheme Area to a sewer and of the acquisition of lands for that purpose less any contribution by the Public Works Department" (par (c)).
14 However, cl 24(3) and cl 24(4) of TPS 3 are irrelevant in the circumstances of this case, because neither cl 24(1) nor cl 24(2) is applicable. Clause 24(1) is not applicable, because the proposed new lot does not contain a dwelling house which was erected before the coming into operation of TPS 3. Clause 24(2) is not applicable, because an initial subdivision to create one new lot has already taken place under that subclause.
15 Furthermore, par (c) of cl 41 does not impose a mandatory obligation on the former Shire, the City or the Water Corporation to undertake any sewerage works. It simply provides that if the local government in fact incurs such costs, those costs are to be considered to be Scheme Costs. Clause 42 of TPS 3 contains a formula for the apportionment of the Scheme Costs between owners of land within the TPS 3 area. That clause is also irrelevant for present purposes.
16 Further or alternatively, Mr Lee submits that approval of the proposed subdivision would not conflict with cl 23 of TPS 3, because it is open to the Commission to impose a condition of subdivision approval to give effect to the intent of that clause in either of the following terms:
"(a) arrangements being made with the local government for the payment of a pro-rata contribution towards the provision of reticulated sewerage in the Waggrakine Area; or
(b) certification from the Water Corporation that arrangements have been made with that body so that connection to a sewerage supply service may be made available to the lot proposed by the subdivision application."
17 However, the imposition of either of these conditions would not be appropriate or reasonable in the circumstances of this case. As noted earlier, extending reticulated sewerage infrastructure to the area is not feasible. It would be inappropriate and unreasonable to impose either condition in circumstances where it is not likely that sewerage connection for the proposed lot will be available within the lifetime of the subdivision approval, namely three years: see PD Act s 145(1), s 145(2).
18 Alternatively, Mr Lee contends that, if approval of the proposed subdivision would conflict with cl 23 of TPS 3, one or more of three circumstances stated in s 138(3) of the PD Act is relevantly established such that the Commission may still give an approval. Mr Lee submits that approval of the proposed subdivision would:
19 Approval of the proposed subdivision would not be consistent with the general intent of TPS 3. In particular, one of the general objects of TPS 3 is "to make provision for the installation of sewerage facilities within the Scheme Area" (cl 6(f)).
20 TPS 3 does not relevantly permit a variation of cl 23 that would remove the conflict. For reasons set out earlier, subclauses (3) and (4) of cl 24 are irrelevant, because subclauses (1) and (2) are not applicable. For reasons discussed earlier, cl 41 of TPS 3 is also irrelevant.
21 According to unsigned minutes of the Shire of Greenough, which are attached to Mr Lee's submissions, an unnamed Committee of the Shire and the Council of the Shire each considered an officer's report dated 11 March 2007 in relation to the proposed subdivision at their respective meetings on 26 April 2007.
22 The officer recommended that the Shire advise the Commission that it does not support the subdivision application. According to the minutes, the unnamed Committee adopted a recommendation that the officer's recommendation be adopted by Council. This Committee motion was moved by Cr Morris and carried by six votes to zero.
23 The minutes then set out a Council resolution, that was also moved by Cr Morris and that was carried by 11 votes to zero, as follows:
"That the Committee Recommendation not be adopted pending additional information received and that Council supports the application to excise one lot of 2082 [square metres] from within Lot 108 David Road[,] Waggrakine subject to compliance with the following conditions:
24 Section 138(3)(e) of the PD Act enables the Commission to give an approval under s 135 that conflicts with the provisions of a local planning scheme if:
"in the case of an application under s 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under s 142 and has not made any objection under that section".
25 The Tribunal is unable to find, on the basis of the unsigned Shire minutes, that this exception is established in the circumstances of this case for three reasons.
26 First, it does not appear that the Shire's consideration of the proposed subdivision came about through a referral by the Commission to the Shire of the plan under s 142 of the PD Act. Section 142(1) of the PD Act provides that, when, in the opinion of the Commission, a plan of subdivision may affect the functions of a local government, the Commission is to forward the plan or a copy of the plan to that local government for objections and recommendations. However, the Shire officer's report in relation to the proposed subdivision predates the lodgement of the subdivision application with the Commission.
27 Second, the assessment process disclosed by the unsigned minutes is somewhat bizarre. The same councillor apparently moved both a Committee resolution that the officer's recommendation that the Shire not support the subdivision application be adopted by the Council (which was carried unanimously) and a Council resolution that the Committee recommendation not be adopted by the Council pending additional information and the Council support the application subject to three conditions (which was also carried unanimously).
28 Third, the intention of the Council resolution is unclear, because it is internally inconsistent. The resolution begins by not adopting the Committee recommendation pending additional information - rather than rejecting the Committee recommendation - but then appears to go on to reject the Committee recommendation by supporting subdivision. Furthermore, two of the three proposed conditions referred to in the second part of the Council resolution may be inconsistent with one another. Although it is unclear what the Council meant by "effluent disposal systems", on one view, condition 1 contemplates on-site effluent disposal, whereas condition 3 requires compliance with TPS 3 which, in cl 23, precludes subdivision unless there is a sewer to which all new lots in the proposed subdivision may be connected.
29 In its submissions, the Commission asserts that "the Shire has objected to the proposal". The Commission did not file submissions in reply to the applicant's submissions which assert that the unsigned Shire minutes disclose no objection to the subdivision for the purposes of s 138(3)(e) of the PD Act.
30 It follows from the foregoing that approval of the proposed subdivision would conflict with cl 23 of TPS 3, contrary to s 138(2) of the PD Act. It also follows that none of the exceptions set out in s 138(3) of the PD Act has been established.
31 However, having regard to the competing assertions by the parties as to whether the relevant local government has or has not objected to the proposed subdivision, in fairness to Mr Lee, the Tribunal stops short of finding at this time that the proposed subdivision is incapable of approval. Rather, the proceedings should be listed for a directions hearing to either enable the Commission to establish its assertion that the Shire has objected to the proposal or to make orders requiring the Commission to forward a copy of the plan of subdivision to the City for objections and recommendations.
32 If the Shire has not, in fact, objected to the proposed subdivision under s 142 of the PD Act, the City's position will be critical in this review. If the City objects to the proposed subdivision under s 142 of the PD Act, then the subdivision is incapable of approval, with the result that the application for review to the Tribunal must be dismissed and the decision of the Commission affirmed. However, if the City does not object under s 142, the proposed subdivision would be capable of approval in the exercise of planning discretion.
33 Approval of the proposed subdivision would conflict with cl 23 of TPS 3. Unless one of the seven exceptions set out in s 138(3) of the PD Act can be established, the proposed subdivision is incapable of approval.
34 Two of the three exceptions in s 138(3) that are relied on by Mr Lee, namely par (c)(ii) and par (d), are not established. The Tribunal is also not able to find, on the evidence available to it, that the third exception relied on by Mr Lee, namely par (e), is established. Unsigned Shire minutes relied on by Mr Lee do not appear to reflect a consideration under s 142 of the PD Act, record conflicting resolutions of a Committee and of the Council moved by the same councillor, and disclose internal conflicts within what appears to be a Council resolution.
35 The proceedings should be listed for a directions hearing in order to enable the Commission to establish its assertion that the Shire has objected to the proposal. If this assertion is established, then the proposed subdivision is incapable of approval. However, if the assertion is not established, then the Commission should forward a copy of the proposed plan of subdivision to the City for objections and recommendations under s 142 of the PD Act. The City, as the local government responsible for the enforcement of the observance of TPS 3, would then need to properly consider the plan having regard to TPS 3 and provide a memorandum in writing containing any objections to or recommendations in respect of the plan, within 42 days.
"(1) Approval of the proposed subdivision would conflict with cl 23 of the Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme.
(2) The circumstances in s 138(3)(a), (b), (c), (d) and (f) of the Planning and Development Act 2005 (WA) are not relevantly established such that an approval may be given under s 135 of the Planning and Development Act 2005 to the proposed subdivision that conflicts with cl 23 of the Shire of Greenough Town Planning Scheme No 3 - Waggrakine Development Scheme.
(3) The Tribunal is not satisfied, on the evidence presented to it, that the exception set out in s 138(3)(e) of the Planning and Development Act 2005 is established."
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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