The creation of more than one conservation lot is inconsistent with the objectives of this policy. The creation of multiple conservation lots will require land to be appropriately zoned as conservation themed rural­residential or rural smallholdings with conservation covenants and building envelopes specified.

20 In summary, the WAPC supported the subdivision but only upon the basis that, apart from some regulatory conditions (that is, fire management (condition 5) and the upgrading of the electricity supply infrastructure (condition 1)), a suite of three conditions (conditions 2 to 4) should be imposed upon the applicants mandating a registered conservation covenant in perpetuity attaching to the subdivision. The covenant would be effected by the application of s 129BA of the Transfer of Land Act 1893 (WA) (TL Act) which provides for the registration of restrictive covenants benefitting local governments and public authorities.

21 The WAPC concedes that the restrictive covenant would effectively sterilise more than half of each lot by permanently preserving an area of precisely identified remnant native vegetation on the subject land. The area of vegetation preserved on each lot is, as has been indicated above, adjacent to each other, making a total contiguous expanse in aggregate of 23 hectares.

22 Condition 2 is the main covenant obligation, with conditions 3 and 4 ancillary thereto: condition 3 requiring a flora and fauna survey; condition 4 providing a non­intrusive boundary definition mechanism.

23 The applicants do not seek to challenge the native vegetation boundaries on the proposed restrictive covenant plan (see above) and the mechanism proposed to achieve this aim, namely, s 129BA of the TL Act. The applicants' concerns are with the imposition of the conservation covenant itself. They accept that if the respondent is successful and condition 2, is in effect, imposed by the Tribunal's decision then the ancillary conditions must also be attached to the subdivision.

24 As appears from the above, the central issue in dispute between the parties relates to whether condition 2 can be and, if so, should be imposed upon the subdivision.

25 The test established by McHugh J, in respect of the validity of subdivision conditions, in Western Australian Planning Commission v Temwood Holding Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (Temwood), at [57], is common ground in this review. His Honour formulated these cumulative requirements:

1. The condition [must be] 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.

26 The applicants have contended that no relevant nexus has been established between the subdivision and the need to preserve the natural environment. However, it is conceded that a proper planning purpose underlies the imposition of condition 2. Thus, of the threefold test enunciated in Temwood, only the second requirement is seriously challenged by the applicants.

27 Mr McKellar, agent for the applicants, contends that the power to impose such a condition does not arise merely because a regulator is presented with the opportunity to pursue some broader environmental objective at the point of subdivision.

28 It was further submitted that because the subject land already contains two separate dwellings, the proposed subdivision involves nothing more than a 'dealing on title' and that any 'planning change' would be limited solely to the effects of such a dealing (that is, the conversion of title). No physical change to the land would result from the subdivision.

29 Thus, it was submitted on behalf of the applicants that there will be no material change 'on the ground', caused by or resulting from the proposed subdivision, considered without the restrictive covenant.

30 The evidence suggests that this contention from a practical perspective could be said to be broadly correct. Hence, the extensive permitted uses for the subject land under cl 8.2 of LPS 1 would neither be restricted nor expanded by the subdivision itself. So, for example, without the need for planning approval, fences and other structures could be erected on the subject land whether before or after subdivision.

31 Further, Mr McKellar submitted that what was being imposed was a form of future, 'positive' (that is, obligatory) management of the identified conservation area. This went beyond, so he contended, what was the proper scope of a restrictive covenant.

32 In reply, Mr Repper of counsel (for the respondent) contended that the cases establish a very wide power conferred upon the WAPC (and this Tribunal, standing in its shoes) to impose such conditions in pursuit of a legitimate planning outcome. Such an outcome may be found having regard to the planning framework outlined above, in particular, DCP 3.4 clause 6.5(d) which expressly contemplates a condition such as condition 2. Indeed, the respondent further submitted that but for the conservation covenant (and its obligations) no subdivision could be properly approved for the subject land, given its environmental status. Thus, so it was submitted, subdivision in this case, if it were to be permitted at all, inexorably attracted a condition in the nature of condition 2.

33 It is clear that the power to impose conditions on any subdivision under s 143(1) of the Planning and Development Act 2005 (WA), as is the source of authority here, is 'extensive and comprehensive although confined to a relevant planning and land use context': Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126, at [11] (Claddagh). Thus, the power is wide enough 'to include the regulation at the point of subdivision of the effects that flow or might conceivably flow from the creation of a separate lot in itself in relation to the subject land': Macri and Western Australian Planning Commission [2013] WASAT 157 (affirmed: Macri v Western Australian Planning Commission [2014] WASC 153).

34 The power is not to be read down by any assertion, directly or indirectly, of notions of preserved property rights. Thus, it has been noted that:

... it is axiomatic that modern planning laws contain many restrictions 'which they have long imposed upon an owner's right to develop and use land without regulation (including the development which is most financially beneficial)': Tolocorp Pty Ltd v Noosa Shire Council [2007] 3 QPELR 362, at 365, per Fryberg J. Similarly:

[T]he bundle of rights involved in a fee simple are greatly modified by social considerations imposed under planning laws and by many restrictions upon ownership under local government laws, health and taxing laws.

CBC Properties Limited v Parramatta City Council, (unreported, [BC9202770], Land and Environment Court of New South Wales, Bannon J, 20 November 1992)[.]

These authorities were cited by the Tribunal, at [88], in Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 (affirmed: Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26).

35 In addition, in Claddagh, the Tribunal observed, at [17], that:

Stein has noted in his Principles of Planning Law (OUP, 2008) at 216:

A main use of development control is to obtain from the developer, by way of a condition, the cost of the upgrades to infrastructure that will be necessary as a result of the development.

See also Stein at 222 citing (as did Jenkins J in [Carbone Bros Pty Ltd v Shire of Harvey [2014] WASC 284, (2014) 202 LGERA 455] at [40]) Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 on the 'quid pro quo' exchanged for the privilege flowing from subdivision approval. Stein cites Temwood as confirmatory of the 'exchange for approval' concept.

36 In Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 the High Court (on an appeal originating from Western Australia) said, at [154]:

The Act [now the Planning and Development Act 2005 (WA)] at its commencement took away the proprietary right to sub-divide without approval, and it gave no compensation for the loss. But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion ... If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the Act down in some fashion by appealing to a principle of construction that has to do with confiscation. If the Board [now the WAPC] has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions.

37 The relevant connection between a subdivision and the pursuit of some public planning purpose or goal (imposed by a condition) is commonly expressed in terms of benefit, or ameliorating the consequences of the subdivision or regulating the other effects that flow in a readily identifiable form from the fact of the subdivision itself. Common examples include the avoidance of possible land use conflicts, or the need for public open space or for relevant infrastructure.

38 Such regulation, at first blush, deals more clearly perhaps than the case here with concrete, quantifiable and identifiable consequences and needs flowing from any subdivision. However, in our view, such specification or classification should not ignore equally valid, perhaps wider, 'societal' aims expressed through planning instruments. Thus, for example, the WAPC's Model Subdivision Conditions Schedule 2012 (Model Conditions) extend to cover heritage and environment matters (see Parts 6 and 8).

39 Here, the planning framework directs attention to similar environmental matters. For example, see DCP 3.4 clause 6.5(d), referred to above.

40 In this case, we accept that it is clear that but for the imposition of condition 2 (or something equivalent), the subdivision itself should, or would, never be approved. This is so, given the admitted 'very high value [of] biodiversity conservation and connectivity to other native vegetation beyond the property boundaries': Albany Regional Vegetation Survey 2010. Thus, in our view, the quid pro quo for the 'privilege' of this subdivision approval is the obligation to maintain a well­identified and scarce natural resource found on significant areas of the newly created lots. The covenant provides for that obligation. As conceded by the applicants, that pursues a legitimate planning purpose and, in our view, arises directly out of the fact of this subdivision itself; that is, the nexus with the subdivision.

41 Consequently, we would uphold condition 2 and the associated and ancillary conditions 3 and 4.

42 The objections to the other conditions may be briefly disposed of. Condition 1 effectively imposes a monetary cost of approximately $8,000 per lot to upgrade power connections to the lot. The engineering, safety and policy basis for the condition was not seriously challenged by the applicants. The Tribunal has generally upheld such local infrastructure upgrades for services as consistent with orderly and proper planning: cf Stewart and Western Australian Planning Commission [2005] WASAT 116. The practice in subdivision matters is reflected in the Model Conditions at Part 5.

43 An analogous result, for similar reasons, flows as to the requirement in condition 5 for a Bushfire Management Plan: cf Model Conditions at Part 7 dealing with fire and emergency conditions.

44 For the reasons given, the review will be dismissed and the conditions will be affirmed.

1. The application for review is dismissed.
2. The decision under review is affirmed.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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